3
Speaking Treason

Treason, wrote the Elizabethan legal authority William Lambarde, was foremost of those ‘public felonies’ that touched the crown and the commonwealth. It was, as jurists described it, the most serious offence, an attack on ‘majesty itself’.¹ Treason threatened the authority, dignity, and reputation of the monarch, as well as his or her life and safety. Its practitioners subverted kingship and challenged the power of the state. Any ‘denial and defacement of the just dignities and authorities of those that bear the name of majesty’ was treason, that is, ‘crimen lesae maiestatis, the crime of violating or abating of majesty’, declared the Elizabethan lawyer Thomas Norton.² As a later Stuart judge told a Grand Jury, ‘treason strikes at the root and life of all; it tends to destroy the very government, both king and subjects, and the lives, interest and liberties of all’.³ ‘All treasons are to be revealed, as tending to the ruin of the whole commonwealth,’ advised the Calvinist theologian William Perkins.⁴

Treason and Law

The penalty for treason was death. Convicted offenders were drawn on a hurdle or sled to the place of execution, ‘hanged till they be half dead, and then taken down and quartered alive’. This, says the Elizabethan commentator William Harrison, was ‘the greatest and most grievous punishment used in England’. Female traitors were supposed to be burned at the stake. Aristocrats, of course, claimed the privilege of beheading, whereas felons in ordinary criminal cases were hung. Someone who refused to plead could face the agony of peine fort et dure, being pressed to death by weights or stones, thereby avoiding the forfeiture of their estate to the crown.⁵ Though the matter was long controversial, those found guilty of treason by words faced the death penalty. But capital sentences were not always carried out. We have no figures directly relating to treason, but barely a quarter of the criminal felons sentenced to hang in the Home Circuit in mid-Elizabethan England actually went to the gallows. The fifteenth-century case of Thomas Kerver (discussed below) reminds us that the ultimate punishment was sometimes commuted.⁶

This chapter examines the law governing treasonable speech and its application in fifteenth- and sixteenth-century England. Medieval precedents carried forward into the eighteenth century, and legal scholars were always immersed in the past. Before turning to speech offences against Queen Elizabeth and her Stuart successors, we need to review some legislation and case histories from an earlier period.

The treason laws of early modern England rested on medieval foundations. Though periodically modified, strengthened, or adjusted, the framework that protected the Tudors and Stuarts was centred on the legislation of Edward III. Some lawyers discerned an older common-law tradition concerning treason, but the core of both theory and practice was derived from statute.

Addressing uncertainties in the law in the Plantagenet era, legislators in 1352 acknowledged that ‘divers opinions have been before this time, in what case treason shall be said, and in what not’. Their statute in the twenty-fifth year of the reign of Edward III attempted to clarify the matter, declaring it treason,

when a man doth compass or imagine the death of our lord the king, or of our lady the queen, or of their eldest son and heir; or if a man do violate the king’s wife or the king’s eldest daughter unmarried, or the wife of the king’s eldest son and heir; or if a man do levy war against our lord the king in his realm, or be adherent to the king’s enemies in his realm, giving them aid and comfort.

It was also treason to counterfeit the king’s seals or his money, or to kill his chancellor, treasurer, or justices. If other cases arose the statute reserved judgment to the king and parliament whether an offence ‘ought to be judged treason or other felony’.⁷

Edward III’s law created the basis for treason accusations and trials for the next several centuries. According to later interpreters, this law made treason ‘any intention which pointed at the death or deposition of the king, however manifested’. But whether words by themselves could be judged treason remained open to question. The medieval statute seemed to require an overt act, like conspiracy or rebellion, but some judges held that ‘the mere speaking of words might be an overt act which evidenced such an intention’.⁸ The law on this point was neither stable nor resolved, and would be tested several times in courts and councils. The uncertainty that the Plantagenet statute attempted to settle remained unsettled, for in practice the boundaries between treason and misprision, lese majesté and seditious words, could be blurred.

Addressing ‘crimen lesae maiestatis, in our English tongue called treason’, the Jacobean lawyer Ferdinando Pulton acknowledged that ‘compassing and imagination is a secret thing hidden in the breast of man, and cannot be known but by open fact or deed’. Speech, however, supplied that fact or deed of treason, ‘and therefore if it be uttered by words it is a sufficient signification thereof’. Others were not so sure. A quarter of a millennium after its drafting, the key Norman French phrase in the 1352 statute ‘compasser ou ymaginer’ was increasingly difficult to fathom. Originally the words meant planning and plotting, involving a concrete threat to the monarch. But they could be construed to make treasonable the hatching or voicing of ideas that endangered the person or majesty of the crown.⁹

Seditious Words

Historians have long observed that ‘the history of the law of sedition is in many respects obscure and needs detailed investigation’.¹⁰ Legal scholars have sometimes questioned whether sedition is even covered in English law, and as late as the twentieth century an Attorney General could remind the British Home Secretary that ‘there is no statutory definition of sedition’.¹¹ The courts have been more comfortable with an adjective than a noun, referring to ‘seditious conspiracy’, ‘seditious libel’, or ‘seditious words’ rather than raw ‘sedition’. As Sir Edward Littleton observed when John Selden was charged with ‘stirring up sedition’ in 1629, ‘we have not either in the division or explication of offences that occur in our books, an express definition, description, or declaration of it, though we meet with it sometimes mingled with other offences’.¹² Though never defined by statute, the concept emerged from common law, and has always been controversial.¹³

Though not strictly treasonous by the act of Edward III, seditious words were dangerous because they shredded the bonds of allegiance and abraded the social fabric. They brought the crown and the government into contempt and excited disaffection against the established regime. Sedition of any kind was divisive, setting subjects against each other and subjects against the crown. It was more insidious, and perhaps more pervasive, than outright treason, and had a corrosive effect on royal authority. Seditious words could be tinged with treason, or could verge on treason, or they could have treasonable import, if the courts could be so persuaded.

Though unknown to late-medieval common law or to Roman law, the legal doctrine of sedition evolved rapidly in sixteenth-century England. It was shaped as much by the Privy Council and by legal practice as by parliament. By the reign of Elizabeth I the offence encompassed all kinds of utterance and expressions that fell short of constructive treason.¹⁴ Seditious speech could be anything divisive, contentious, or mutinous that was likely to spread discord. Like the character ‘Sedition’ in John Bale’s play King Johan (written in the 1530s, revised c. 1560), who held ‘princes in scorn, hate and disdain’, and fostered spiteful disobedience, seditious speakers were understood to be enemies of the state.¹⁵

‘Contemptuous talk’ and ‘unbridled speeches’ led to ‘factions and seditions’, warned Lord Keeper Bacon in 1567. They ‘maketh men’s minds to be at variance with one another, and diversity of minds maketh seditions, seditions bring in tumults, tumults make insurrection and rebellions’. Loose and dangerous talk could be ruinous, for sedition was the harbinger of treason.¹⁶ Scandalum magnatum slipped easily into sedition because words spoken to the ‘discredit or disparagement’ of great men seemed likely to undermine the authority of the crown.¹⁷ ‘Sedition is a public thing… public and violent’, said a King’s Bench judge in 1578, ‘for as much as it toucheth the prelates, nobles and great officers, which are the king’s counsel’.¹⁸ ‘To deface a prince or governor dissolveth and subverteth the state,’ declared another Elizabethan councillor in 1590, who feared that seditious words could sever ‘the bands and sinews of all government next under the ordinance of God’.¹⁹ ‘If seditious talebearers (the sowers of rebellion) should not be snapped up and restrained,’ warned William Lambarde, ‘the hurt body [politic] would bleed to death’.²⁰

Government lawyers called for sharp punishment for speakers of sedition. The crime was a high misdemeanour. Justice Roger Manwood advised in 1577 that statute law provided punishment ‘by pillory and cutting of… ears’ for ‘lewd and detestable slanderous speeches towards her majesty’. And the common law, he avowed, allowed for mutilation, blinding, and even dismemberment, so that the state might punish an offender by ‘burning in the face with letters, or by gagging his two jaws in painful manner, and so he cannot speak any words… or by burning through his tongue, or perchance cutting off his tongue, in such way as he may eat and drink and take sustenance after’.²¹ The imposition of pillorying and ear-cropping was justified by reference to the statute of 12 Richard II, c. 11, although local magistrates were sometimes allowed to punish ‘as they should think meet, weighing [the offender’s] corrupt and cankered disposition’.²² Seditious libellers faced fines, disfigurement, and prison.

In 1574 the government ordered the Council in the North ‘to punish … seditious words against the queen, nobility, Privy Council, or the Council there (not being treason) by pillory, cutting off the ears, wearing papers, imprisonment, or fine, as limited by law’.²³ But at Shrewsbury that year an offender was made to sit for an hour with one leg in the stocks, with a paper on his forehead declaring, ‘thus am I punished for speaking of seditious and slanderous words’. A local critic declared this too lenient, saying that the proper punishment involved three hours of restraint with both legs in the stocks.²⁴ (Use of the stocks to hold an offender’s legs fell out of use by the early eighteenth century. The judicial use of the pillory became a rarity by the later Hanoverian era, and was abolished in 1837.)

Jacobean jurists recalled that ‘in former ages speeches tending to the reproach of others were so odious that King Edgar ordained that his tongue should be cut out which did speak any infamous or slanderous words of another’.²⁵ Some political commentators in the reign of Charles I thought that reporters of false rumour ‘are worthy to have their tongues cut out’, though this was not a normal punishment in English law.²⁶ In early Stuart Ireland, however, a speaker of sedition could be bored through the tongue.²⁷ In 1639 a Scotsman in Dublin was sentenced to lose his ears, ‘his tongue to be slit, his forehead to be seared with a hot iron with the letters I and S for impious slander’, after speaking disrespectfully of Queen Henrietta Maria.²⁸

Plantagenet Treasons

Dozens of people were punished in fifteenth-century England for words that seemed to imagine or compass the death of the monarch. Many more were investigated for ‘unfitting’ or derogatory remarks disparaging the crown.²⁹ The deposition of Richard II and the usurpation of Henry IV in 1399 precipitated a spate of treasonous remarks, along the fault lines of shifting loyalties. Some of Henry IV’s subjects cursed their new king, while others spread rumours that King Richard was still alive. Several paid heavily for their words, including sixteen men executed in 1402 for voicing expectations of Richard’s imminent return. Similar Ricardian rumours greeted the accession of Henry Vin 1413. An inchoate news culture took shape long before the early modern era, mixing popular political prophecy, seigneurial commentary on public affairs, and shifting plebeian grievances. Out of that news culture emerged voices of treason and sedition.³⁰

Another cluster of cases concerned that most incompetent and unfortunate of rulers, Henry VI (1422–61, 1470–71). In his reign too there were rumours that King Richard yet lived, and four traitors were condemned in the 1420s for saying that this ‘false Richard’ would shortly regain his kingdom.³¹ By the time Henry reached adulthood in the 1440s there were subjects venturing to say that he was not fit to be king, and prosecutions of people who were said to have said such things. Occasionally the surviving documentation cites the actual words and reveals something of the circumstances in which they came to light. The courts took note of hostile and ‘detestable’ utterances, but reserved the most severe punishment for traitors who threatened the security of the realm.

A Sussex case came before King’s Bench in 1441 after Thomas atte Wood, butcher of Chichester, reported his neighbour, Robert Seman, a tanner, for speaking treason. According to Wood, the two men were drinking at ‘an hostelry called the Tabard’ in April 1440 when Seman said ‘that the king our sovereign lord was no king, nor should be, and that should be known in short time’. Both men were brought before the mayor’s court at Chichester, in the presence of crown coroners, then moved up to Westminster and held in the Marshalsea prison. Robert Seman would seem to have disparaged Henry VI’s title to the throne, but he was quickly released on bond and eventually discharged. His accuser Thomas atte Wood, however, spent almost a year behind bars for initiating what appeared to have been a malicious prosecution. With its origins in drunken conversation, and its furtherance through neighbourly discord, the case set the pattern for many in succeeding centuries.³²

In a case from 1442 involving high politics rather then plebeian outspokenness, Juliana Quick used ‘proud and lewd language’ to excoriate the king for his punishment of Lady Eleanor Cobham, the Duchess of Gloucester, who had dabbled in sorcery, necromancy, and treason. She called Henry VI ‘that proud boy in red’, and taunted him: ‘Harry of Windsor, ride soberly, thy horse may stumble and break thy neck… Thou art a fool, and a known fool throughout the whole kingdom of England.’ Perhaps she was voicing the common fame. Arraigned before King’s Bench ‘for her ungoodly language and foolhardiness to speak so to her liege lord the king’ (though not explicitly for treason), Juliana refused to answer. Instead she suffered peine fort et dure (pressing to death beneath heaped irons). Her crime lay not just in her verbal mockery but in her apparent compassing of the king’s death, but the circumstances remain obscure.³³

In 1444 a Berkshire gentleman, Thomas Kerver, faced prosecution for wishing aloud that King Henry VI ‘had died twenty years ago’ or ‘had never been born’. In saying this he evidently compassed or imagined the death of the king. Conversing with companions after the Easter service at Reading abbey, Kerver allegedly compared Henry disparagingly to the ‘manful’ French dauphin, and cited the biblical text ‘ve regno cui puer Rex est’, repeating in English, ‘woe to the land whose king is a child’. The government construed Kerver’s speech as an overt traitorous act, an attempt to enlist accomplices to his ‘traitorous imaginings, wishes, desires and intentions’, and expended considerable effort to see him convicted. He was, the regime charged, not just an ill-spoken malcontent but a danger to the English crown. Twice tried and eventually found guilty of treason, Thomas Kerver was sentenced to be drawn, hung, and quartered, though remarkably, in this case, he was cut down from the gallows at the last minute and was pardoned to imprisonment at the king’s pleasure. Early modern lawyers cited Kerver’s case as an example of someone executed for treasonable words, but deep exploration of the public records (by a talented medievalist) has shown that the traitor came out alive, with a very sore neck.³⁴ It was a chilling precedent, though not without complications.

Thomas Kerver was not alone in describing his king as childish and unfit to rule. More than two dozen cases of this sort came before King’s Bench between 1444 and 1457. A London draper said in 1446 that King Henry lacked wit and was so dominated by his ministers that ‘his rule is nought’. Others remarked on the king’s childish face and the setbacks suffered by the kingdom. A resident of Ely in 1449 named one of his fighting cocks Henry of England, remarked sourly on the king’s defeats, and prophesied his early death. Two Southwark men in 1453 described King Henry as a sheep, and wished he had died long before. Another said that it would be better if Henry’s head, not Jack Cade’s, was stuck on London Bridge.³⁵ Hearing in 1457 that the king has been injured at the battle of St Albans, a yeoman at Westminster regretted that the injury had not been fatal.³⁶

A Sussex husbandman, John Merfield, declared in 1450 that Henry VI ‘was a natural fool… not a person able to rule the land’. Merfield, we learn, had sided with Jack Cade’s rebels and had been included in the general pardon. But rather than accepting defeat he declared ‘that he and his fellowship would arise again, and when they were up they would leave no gentleman alive but such as them list to have’. This was blood-curdling bravado, but paled besides Merfield’s observations about Henry VI. Speaking in the market at Bright-ling, Sussex, on St Anne’s day (26 July) 1450, he said ‘that the king was a natural fool, and would oft-times hold a staff in his hands with a bird on the end, playing therewith as a fool, and that another king must be ordained to rule the land, saying the king was no person to rule the land’. Merfield was brought before justices at Lewes in June 1451, the case was adjourned to Chichester a month later, and thereafter the record is silent.³⁷

The leading historian of late medieval and early modern treason, John Bellamy, cites these and other cases of ‘treason by words’ as ‘novel’ expansions of law associated with the Wars of the Roses. Other legal scholars have questioned whether they were congruent with common law or reasonable constructions of the 1352 statute. It seems that a verbal utterance could constitute a treasonous offence if it was associated with an actual conspiracy, or it was deemed to cause people to withdraw their love from the monarch, thereby compassing his death. There may also have been some belief that traitorous words had malefic efficacy, as if speaking depravingly of the king could actually bring about his demise.³⁸ Most of those charged had apparently done more than open their mouths. In practice, one should not be surprised that the law and its enforcement were adjusted to changing political circumstances.

After the battle of Towton (March 1461) the accession (or intrusion) of a talented and vigorous monarch changed the conversation but did not stop people talking. Oliver Germaine, a Wiltshire tailor, was executed that year for saying that Edward IV was responsible for the murders of Warwick and Clarence. It was treason, the judges argued, to excite the king’s lieges against their rightful ruler, treason to induce subjects ‘to withdraw their cordial love’ from the monarch thereby compassing his death. Germaine’s words, then, constituted a treasonable act. Later in King Edward’s reign in 1477 Thomas Burdett was executed for saying after a royal hunt ‘that he wished the buck, head, horns, and all, were in the king’s belly’. But Burdett was also alleged to have engaged in necromancy, like Eleanor Cobham a generation earlier, that ‘compassed the death and final destruction of the king’, thereby compounding his offence.³⁹

Few recorded utterances against Henry VII have survived, but the drama of his reign, which began in civil war and endured the claims of at least two pretenders, surely set men talking. The number of recorded cases, however, is low, with rarely more than one or two a year. Among them was William Haynes, a London mercer, charged in 1486 with speaking ‘inhonesta and evil-sounding words against the king and his lords’, and William Styles, a Kentish labourer, who declared more menacingly in 1490: ‘I would there were a pound of molten lead in the king’s belly, for he did never good since he came to this land.’ Haynes was released when the jury found the bill ignoramus, and Styles managed to escape and avoid justice.⁴⁰ A master Butlar was later heard to say that ‘we need not pray for the king by name… for why ‘tis hard to know who is rightwise king’, but the speaker was not brought to trial.⁴¹

One of the greatest men in the land, the Lord Chamberlain Sir William Stanley, was executed in 1495 for ‘words of treason’ that evidenced ‘the alienation of his heart from the king’. Sir Francis Bacon, who records this episode in his History of the Reign of King Henry the Seventh, may have been thinking as much of his own day as of the reign of the first Tudor, but his commentary is compelling. In discourse with Sir Robert Clifford, discussing the claims of the pretender Perkin Warbeck, Stanley allegedly said ‘that if he were sure that that young man were King Edward’s son, he would never bear arms against him’. This was tantamount to admitting that Henry VII was not the true king, a treasonous expression. Though the words were conditional, they proved lethal, and Stanley went to the block. ‘That speech touched the quick,’ writes Bacon, and ‘no doubt pierced the king more than if Stanley had charged his lance upon him’. The consequence, he adds, ‘was matter of great terror amongst all the king’s servants and subjects, insomuch as no man almost thought himself secure, and men durst scarce commune or talk one with another, but there was a general diffidence everywhere’. There seems to have been a chilling of discourse, but the evidence is inadequate to determine whether this truly happened.⁴² In a Star Chamber case in the 1620s Chief Justice Richardson referred to another case from 1495 in which ‘one Balam made a libel against the king and for it was hanged, for it was treason’, for ‘alienating the subjects’ affection from their sovereign is treason’. But Richardson muddled his history and may have been citing an episode from the reign of Henry VIII.⁴³

Words against Henry VIII

At no time in the early modern era was it so dangerous to dispute politics as in the reign of Henry VIII. In no other reign were so many executed for allegedly speaking treason.

The king’s early years yield few instances of treasonable or seditious talk, but a flood of cases followed in the 1530s. It may be that before the Reformation the king was generally popular, state surveillance less obtrusive, and the stakes not so high as they would become later. Certainly the documentation is more sparse for the early Henrician period than the era of Thomas Cromwell. Nonetheless, grumbles and grievances were still aired, and some people talked their way into trouble. A Devonshire man, John Cole, faced investigation in 1514 for saying that ‘the king is but young and wots not what the matter means for his Council must order the matters, for men may have of him what they will when he is merry at tennis’. These remarks led to proceedings in King’s Bench, but Cole’s fate is unknown.⁴⁴ A Lincolnshire tavern drinker, Anthony Irby, made similar unguarded remarks in 1516, that Cardinal Wolsey and the Duke of Suffolk, ‘which the king hath brought up of nought, do rule him in all things even as they list… and rule him even as a child’.⁴⁵ It comes as some surprise to hear Henry VIII demeaned in terms similar to those used against Henry VI, Edward VI, and Charles I.

A few people questioned the Tudor royal lineage, and some spoke rashly regarding the claims of the Duke of Buckingham. Robert Sherrard, the parson of Rampsham, Dorset, allegedly asserted that neither Henry VIII nor his father were ‘worthy to wear the crown, for he said that the father of Henry VIII was a horse-groom and a keeper of horses… and he came to the crown by dint of the sword’. Sherrard voiced these words at the time of the expedition to Tournai in 1513, but they did not come to official attention until 1521 in the course of a local dispute. Though the parson denied his words, they cost him a spell in prison. His offence was scandalous speech, not treason.⁴⁶

Ordinary ill-spoken antisocial disgruntlement occasionally reared its head, as in the case of Richard Barnard, an Essex yeoman, brought before King’s Bench in 1522 for his ‘opprobrious, scandalous, vilifying and rebellious-sounding words’. Barnard allegedly declared in Great Waltham church in December 1521: ‘I set nought by God, by the king nor the queen, by lord nor lady, by sheriff nor sheriff’s man, by bailiff nor constable, nor by no man.’ This was a comprehensive rejection of the chain of authority, of the kind that might be heard in any age. We do not know whether Barnard was drunk, or furious at local officials, or perhaps the victim of malicious prosecution, but charges against him were dismissed.⁴⁷

More pointedly, Peter Wilkinson, a Norfolk man, spoke treason in 1523 by threatening to fetch the king ‘by the head and bring him down’. Witnesses reported a discussion in the vicarage at Geyton, Norfolk, in which Wilkinson complained of excessive subsidy assessments. Before long, he foresaw, ‘there would be three more taxes, and every man would have to pay half what he was worth’. The only remedy, Wilkinson avowed, was for every man to follow his lead: ‘he would take him by the head and pull him down.’ Asked by the vicar William Pygot whom he would pull down, Wilkinson answered: ‘Harry with the crown.’ This may have been bluster and bravado, but it was also foolish and dangerous. The vicar bade him beware, and Agnes Whitmore (the wife of William Whit-more, the informant) declared that, had she spoken ‘any such words, she were worthy to have been burnt’ (the official punishment for female traitors). Report of this conversation went from Norfolk justices to councillors in London, and perhaps to the assize courts, but its final disposition is unknown.⁴⁸

The law of treason became sharper and more dangerous when Henry VIII deployed potent new legislation to defend his break with Rome. The English Reformation, which opened access to the word of God (by promoting the vernacular Bible), was accompanied by a clampdown on popular discussion. A dozen parliamentary enactments between 1531 and 1544 redefined offences as treason. The Succession Act of 1534 (25 Hen. VIII, c. 22) made it high treason (punishable by death) to attack the king’s marriage to Anne Boleyn ‘by writing or imprinting, or by any exterior act or deed’, and made it misprision of treason (a lesser offence, punishable by imprisonment and fines) to speak words ‘to the prejudice, slander, disturbance and derogation’ of their royal majesties. The Treason Act that followed later that year (26 Hen. VIII, c. 13) declared treason any act or desire, any deed or utterance, including both spoken and written words, that sought to harm the king, his wife, or his heir, or to deprive them of their title or dignities. It was now treason to call the king a ‘heretic, a schismatic, a tyrant, an infidel or an usurper’, as some of his subjects had been doing.⁴⁹

Going well beyond the provisions of the 1352 act, the Henrician law made dangerous all kinds of speech that might otherwise be dismissed as ignorant, foolish, or harmless, or at worst scandalous or seditious. The new law criminalized remarks that affronted the royal honour as well as threatened the life of the king. ‘Speaking is made high treason which was never heard of before,’ complained Robert Fisher, the bishop of Rochester’s brother, in 1535. Ordinary people could commit this offence in their casual conversations, and some of them paid for it with their lives.⁵⁰ It was scathingly remarked that ‘the king will hang a man for a word speaking nowadays’, and that ‘a little word is treason’.⁵¹ In 1541 the Protestant merchant Richard Hilles reported from London, ‘it is now no novelty among us to see men slain, hung, quartered, or beheaded; some for trifling expressions, which were explained or interpreted as having been spoken against the king; others for the pope’s supremacy; some for one thing, and some for another’.⁵²

The crisis of public order provoked by Henry VIII ‘s reformations brought hundreds of English commoners into conflict with royal authorities. As the chronicler Edward Hall recorded, ‘the common people daily murmured and spoke their foolish fantasies’.⁵³ In response the government expended considerable energy in monitoring and punishing dissent. ‘Wheresoever any such cankered malice shall either chance to break out or any to be accused thereof, his highness would have the same tried and thoroughly perused with great dexterity and as little favour as their demerits shall require’—so Thomas Cromwell instructed councillors and magistrates.⁵⁴ Local officials understood their duty to inform the Privy Council of undutiful remarks, even where the matter though ‘high’ was ‘of small effect’.⁵⁵

Critics and commentators came under unprecedented scrutiny in the 1530s as country justices, gentry, and informers manned a nervous network of surveillance. People who were scandalized by their monarch’s matrimonial policies, who were outraged by his assault on the monasteries, or who spoke of Henry VIII as a monster became subject to official investigation. Subjects who remained loyal to the papacy or to the old religion could henceforth be construed to be traitors, especially if they voiced their opinions out loud. So too could men who disparaged government of any sort. Hundreds of cases came to Thomas Cromwell’s attention, some to be monitored, others to be prosecuted with vigour. The years between 1534 and 1540 saw more than 500 investigations, over 150 trials, and more than 100 executions for treasonous words. Tudor legal historians have argued whether these numbers are excessive or modest, and whether they are marks of tyranny or of prudence. The evidence shows ordinary people to have been talking, sometimes dangerously, sometimes irresponsibly, and sometimes to ill effect, about the highest affairs of the realm.⁵⁶

Among those held for investigation in 1535 was George Baburney, a tailor of Newport Pagnell, Buckinghamshire, who called King Henry ‘a heretic, a thief and a harlot’ and who hoped before midsummer to ‘play football with his head’. Edmund Brocke, ‘an aged wretched person’ of Cowle, Worcestershire, blamed that summer’s bad weather on Henry VIII, and thought it no matter if the king were ‘knocked or patted on the head’. Baburney was most likely executed for his words, and for wishing ‘the sword of vengeance’ might light on the king and the council; Brocke, who claimed ‘he was mad or drunk and wist not what he said’, most likely escaped serious punishment.⁵⁷

Another strong-voiced subject, Margery Cowpland of Henley on Thames, reportedly called King Henry ‘an extortioner and knave’ and Queen Anne ‘a strong harlot’. When a local official, Richard Heath, warned her that he was the king’s servant, she responded, ‘the king’s servant, the devil’s turd!’ Margery was in deep trouble, and her case went all the way up to the Privy Council. But it came out that her principal accuser, John Wynbok, was in dispute with her about other matters involving a covenant, a lease, and a mill, raising the possibility that this was a malicious prosecution. Margery, for her part, denied the words, but Sir William Stonor, who reported the matter to Cromwell, believed she had said them. He described her, however, as ‘very aged and lacking wit’ and as ‘a marvellous drunken woman … somewhat straight out of her wits, and her husband is out of his mind and hath been this twelve months and more’. Befuddlement with drink or senility was no legal excuse, but it may have persuaded the government in this case that the royal dignity was not seriously at risk.⁵⁸

Also in 1535 Margaret Chaunseler of Bradfield St Clare, Suffolk, was examined for saying ‘that the queen was a goggle-eyed whore’ and ‘a naughty whore’, and for praying that Queen Anne, having had one child born dead, ‘might never have another’. These were ‘traitorous’ and ‘opprobrious’ words, against both the Treason and Succession laws, and Margaret did not deny them. Rather, she told Sir Robert Drury, ‘she was drunk when she did speak them, and that the evil spirit did cause her to speak them, and she was very penitent for her offences’.⁵⁹ Talk like this was linked to rumours about the depredation of the church and prophecies that the king’s reign would come to a sudden end.⁶⁰ Other rumours had it that the king was already dead, or that the French or the Scots would soon take over the kingdom.⁶¹

Over the next few years the controversies of the king’s matrimonial and religious policies sparked nationwide disturbance and heated discussion among subjects of all sorts. James Macock of Long Buckby, Northamptonshire, asserted in 1536 that the king had ‘the foul gout or the wild gout’ (that is, syphilis) and that his reign would soon be over. When news reached Essex that year that King Henry had fallen from his horse, Adam Fermour remarked, ‘it should have been less loss that he had broken his neck’, and offered to finish him off with arrows.⁶² Among those contributing to the noise in 1536 was John Raven of Over, Cambridgeshire, who declared that ‘the king was a fool, and my Lord Privy Seal another’. The constable who recorded these words warned Raven to ‘deny them’, for ‘thou wilt sure to be hanged unless thy neighbours be good to thee’.⁶³ It was chilling to know you could die for saying the wrong thing, but comfort of a sort that your case still had to go before a jury and follow the process of law.

Among those prosecuted for their words in 1537, in the aftermath of the Pilgrimage of Grace, was Elizabeth Wood, wife of Robert Wood of Aylsham, Norfolk. According to local reports, Elizabeth had been resting against a tailor’s shop window in Aylsham in May of that year, chatting with John Dix and William Jeckes about the men of nearby Walsingham who were on trial for an intended uprising. ‘It was pity that these Walsingham men were discovered,’ Elizabeth is alleged to have said, ‘for we shall never have good world till we fall together by the ears, and “with clubs and clouted shone shall the deeds be done”, for we had never good world since this king reigned. It is a pity that he filled any clouts more than one.’ The sentiments are somewhat opaque, but they seem to have evoked a popular verse prophecy in support of peasant levelling. One of the listeners, John Dix, was troubled enough by Elizabeth’s speech to ask a neighbour what to do. The neighbour, Thomas Clampe, advised him ‘to take his witness with him that heard the said words, and so shortly as possible to show it unto the king’s officers’. Dix duly reported the matter to the constables (John Bettes and Thomas Oakes), the constables referred it the magistrates (Sir John Hey don and Sir James Boleyn), and within two weeks the ‘lewd and ungracious’ Elizabeth Wood was in prison and report of her ‘detestable and traitorous words’ was on its way to London (Sir John Heydon to Richard Gresham, and thence to Thomas Cromwell and the Privy Council). She was convicted in King’s Bench on 26 July 1537 and immediately taken to execution.⁶⁴

The Londoner Henry Mapurley fared better, being released on a technicality after saying: ‘I set not a pudding by the king’s broad seal, and all his charters be not worth a rush.’⁶⁵ The Hampshire cleric Peter Bentley was held in Winchester gaol in the following year after speaking disparagingly of the king’s authority: ‘I set not by this seal nor by him, twysh! not this much (making a fillip with his two fingers) for I trust to see the day that all this shall be turned ups and down. A man may say what he will in his own house.’ Unfortunately for Peter Bentley, and many more of the king’s subjects, this assertion of domestic privilege no longer held true.⁶⁶ Loose talk was likely to be reported, and, once it had reached the authorities, an investigation would surely follow.

Reports of the dangerous speech of Robert Adeyn, a servant to Sir John Hurleston, reached the bailiffs and aldermen of Worcester in 1537. Adeyn allegedly said, ‘in the presence of divers honest persons, that he would in his master’s cause or quarrel fight against King Henry VIII, and if a did in the same quarrel kill the king he should not be punished otherways than he should be for killing of another man, and that is to be hanged’. These words would seem to reflect misguided seigneurial devotion rather than treason, but the bailiffs dutifully reported them to the Privy Council, who summoned the speaker to be examined. By the time the reports reached London, however, Adeyn was long gone, having fled into Gloucestershire with his master.⁶⁷

Willing or wishing the king’s death, like compassing or imagining, was clearly treasonable, and there seemed no end of such talk. As in most early modern regimes, there were subjects ready to opine that the world would never be quiet or merry while the present monarch yet lived. John Newman of Newnton, Northamptonshire, declared of Henry VIII that ‘it is a pity that the king was ever crowned, for we have had more pilling and polling since he was crowned than ever we had before, and it is a pity that he hath lived so long’. A more responsible neighbour immediately warned him, ‘beware what thou sayest, for thou speakest treason’.⁶⁸

Some of the most dangerous words came from clerics who were outraged by the king’s attack on their religion. William Reyrson, the parson of Kibworth, Leicestershire, went to prison in 1538 for saying that ‘if the king had died seven years agone it had been no hurt’.⁶⁹ At Whitsuntide that year the Yorkshire priest Robert Keriby discussed with his parish clerk the widespread rumour that ‘the king is dead’. To the clerk’s comment, that ‘if Cromwell were dead also, it were not a halfpenny loss’, the priest responded, ‘if any of the great men had had a switch at the king’s neck a twelvemonth since… he should have had small peril for it’. William Wood, a layman who was listening to this conversation, warned them both that ‘many more in the south parts hath been put to death for saying less than this’.⁷⁰ Another priest, John Colyns, predicted that Henry and Cromwell both ‘will hang in hell one day for the plucking down of the abbeys’.⁷¹

Commoners, too, berated the king, and not only for his changes to religion. ‘A vengeance on the king… and also of such polling harlots as you are’ were the ‘treasonable words’ of the Nottinghamshire husbandman Nicholas Saunderson, when royal huntsmen pressed his wagon into the king’s service.⁷² ‘A vengeance of the king’, repeated the Leicestershire cook Richard Wittington, who was drawn, hung, and quartered for his treason.⁷³ Others predicted yet again that the king should soon be dead, and then their burden of taxation would be relieved.⁷⁴ Peter Straych of Exeter became a ‘traitor’ in April 1538 by saying that ‘he set not a turd by the king neither by his Council’.⁷⁵ William Hamlyn of Bognor, Sussex, prayed God that ‘a vengeance take the king and his Council, I would they were all hanged’, after officers distrained his hog for a four-penny debt to the crown.⁷⁶ James More, a Lincolnshire labourer, was executed as a traitor in 1538 for saying that ‘the king has lived overlong by three years’.⁷⁷

Two more commoners died in 1541 for speaking treason. After shooting an arrow at a target, Lionel Haughton, a Leicestershire tailor, unwisely remarked: ‘I would the king’s body had been there.’ John Laburne, a Lincolnshire labourer, said rather more cryptically that ‘if the king came to Lincoln he would never leave, just as King Richard never left Newark’. Both were sentenced to be drawn, hung, and quartered.⁷⁸ The surgeon William Nostrum of Redruth, Cornwall, was punished similarly in 1544 for saying in exasperation, ‘King Harry, King Harry, a vengeance upon King Harry’.⁷⁹

Talk of this nature no doubt continued throughout the later years of Henry VIII’s reign, though it appears less commonly in the records after the fall of Thomas Cromwell in 1540. Disaffected chatter of this sort never entirely abated, but never again would it be so dangerous to speak words that could lethally be construed as treason.

Treasonable and Seditious Speech, 1547–1558

The new Henrician treason law was repealed at the beginning of Edward VI’s reign by legislators who ventured to call it ‘very strait, sore, extreme and terrible’ (1 Edw. VI, c. 12). Henceforth treason would be judged solely by the old law of Edward III.⁸⁰ But it still remained dangerous to speak ‘by express words’ against the powers, titles, or dignities of the sovereign and his government. Such talk was dangerous for the regime as well as perilous to the individual speaker. Sir John Cheke, writing in 1549, thought it ‘treason to speak heinously of the king’s majesty’, deserving the highest punishment, but other jurists were not so sure.⁸¹ The slippage between treason and sedition still caused confusion. Edwardian Privy Councillors were sensitive to speech against the monarch, and also to seditious words against themselves. Local officials threatened prison to commoners who spoke scandalously against gentlemen, or whose ‘treasonable words’ commended the ‘commotion time’ of 1549.⁸²

In practice, as always, much depended on the councillors and judges and whether they interpreted the law to the crown’s advantage. There was much blurring of distinctions, with adjectives like ‘treasonable and seditious’ employed in conjunction with words like ‘lewd’, ‘slanderous’, ‘heinous’, and ‘opprobrious’. Magistrates commonly investigated accusations of speech labelled ‘treasonous’ or ‘treasonable’, only to proceed on lesser charges involving less fatal offensive words. (The word ‘treasonous’ meant treason-like, whereas ‘treasonable’ indicated something that could be construed as treason.) Political considerations often intervened, and it might take several exchanges of correspondence between the Council and the justices, several negotiations of direction and advice, before the full weight of the offence could be measured. A felony indictment was often reduced to a misdemeanour, or the matter was dropped or referred back to local discretion.

In September 1549, for example, Sir Anthony Aucher sent William Cecil ‘a bill of words spoken by George Fletcher’, along with the offender’s answers. ‘If words may be treason,’ Aucher wrote, ‘none ever spoke so vilely as these “commonwealths”, saying if they have no reformation before St Clement’s day [23 November] they will seek another way’. But vile and dangerous though these words may have been, in a year of radical commotions, the speaker would not be treated harshly. Fletcher had not spoken directly against the king, and some in government may have sympathized with his commonwealth leanings. ‘Be friendly to Fletcher, who has a wife and eight children, trusting he will henceforth be honest,’ Sir Anthony Aucher counselled Cecil.⁸³

In another case three years later, in September 1552, the Council asked the Chief Justice and his associates ‘to consider of what importance the words contained in an information sent him enclosed, spoken by one John Tonstall of Hetton [Yorkshire], are, and what they weigh in the law; that their opinions known, order may thereupon be given for the worthy punishment of the lewd fellow according to justice’.⁸⁴ What happened next would be affected by the standing of the speaker, the quality of the witnesses, the scandal of the words, and the circumstances of their utterance, as well as judicial and political interpretations of process and law.

In September 1552 the council took notice of ‘unruly sayings… neither meet to be spoken, nor concealed of any hearer’, allegedly spoken by the gentlewoman Elizabeth Huggons, whose family had served the late Protector. She was heard to say that ‘the world doth condemn the Duke of Northumberland for my lord of Somerset’s death’, explaining that, by ‘the world’, she meant ‘the voice of the people’. But this paled beside her remarks about the young King Edward. ‘She said also that the king showed himself an unnatural nephew, and withal did wish that she had the jerking of him,’ or could administer his majesty a lashing. Though not necessarily treasonable, these words were scandalous and seditious, and brought Mrs Huggons to the Tower for examination.⁸⁵

The most common punishment under Edward VI for words of a seditious nature was for the offender to stand in the pillory, perhaps with an ear nailed to the post and with a paper on his head declaring the nature of the offence.⁸⁶ The authorities had discretion to decide whether one or both ears would be cropped or sheared, whether the pillorying should be repeated in more than one market place, the extent of any fine, and the length and severity of imprisonment.

A Norfolk man, William Whitered or Wissingseat, endured the pillory and the loss of an ear in February 1550, after speaking seditious words, and was then dismissed ‘with a good lesson’.⁸⁷ In May 1551 one Herris, ‘having spoken traitorous words against the king’s majesty, denying him to be king’, was referred to the next assizes.⁸⁸ The following May one Fauding, a fellow of Eton College, was detained in the Fleet prison for repeating ‘certain lewd words touching the succession of the crown’.⁸⁹ Another unfortunate went to the Tower in May 1553 ‘for reporting of certain words touching the king’s majesty’s person’.⁹⁰

The Londoner Roger Preston was set in the pillory in August 1550 and lost both his ears ‘for speaking of lewd words by the Duke of Somerset’.⁹¹ Peter Cooke suffered similarly in August 1552 for ‘certain lewd and slanderous words’, and was then held in prison ‘till he show some tokens of repentance and amendment’.⁹² Alan Hudson of Southampton lost his ears in January 1553—one at Southampton and the other at Winchester—for speaking against the Duke of Northumberland. After two spells in the pillory with a paper on his head announcing ‘a seditious reporter of lewd and slanderous words’, he was allowed to go free, ‘with a good lesson to beware of the like hereafter’.⁹³

Against the background of dynastic problems, religious upheavals, and regional rebellions in the reign of Edward VI, these expressions of insubordination were but minor nuisances. They revealed the continuing difficulty of maintaining discipline and securing allegiance in a society destabilized by rapid change.

Mary Tudor’s first legislative act was to repeal all treasons and felonies whereby men might be ‘trapped and snared, yea many times for words only, without other fact or deed done or perpetrated’. Without referring to her brother’s statute, which had much the same effect, she enacted that ‘none act, deed or offence … by words, writing, cyphering, deeds or otherwise whatsoever shall be… adjudged to be high treason, petty treason, or misprision of treason, but only such as be declared’ in the statute of 25 Edward III. The new regime thereby relied for its security, so it said, on ‘the love and favour of the subject toward their sovereign ruler and governor’, rather than ‘the dread and fear of laws made with rigorous pains and extreme punishment’.⁹⁴ At least that is what they said before they started burning heretics.

New powers, however, were rapidly added to the Marian disciplinary arsenal. When Mary of England and her husband Philip of Spain set out to restore the authority and religion of Rome they armed themselves with ‘An act against seditious words and rumours’ (1 and 2 Phil. and Mary, c. 3, 1554–5). This enacted penalties for words spoken to the reproach of the king and queen that were seditious and slanderous, though not strictly treasonous. Persons found guilty of speaking such ‘false, seditious and slanderous’ words faced an array of judicial punishments short of a traitor’s death. A first offender might lose his ears at the pillory and face a fine of one hundred pounds and three months’ imprisonment. Repeat offenders risked lifetime incarceration. Authors of seditious ‘writings, rhymes, ballads, letters, papers and books’ were to have their right hand cut off. Those who repeated such slanders could lose an ear or pay a fine. The offence of the tongue and the pen was to be imprinted on the offender’s body. The law required justices of the peace to commit without bail any person ‘vehemently suspected’ of saying or reporting slanderous or seditious words against the crown.⁹⁵

If that were not enough, ‘An act for the punishment of traitorous words against the queen’s majesty’ (1 and 2 Phil. and Mary, c. 9) made it high treason for anyone to pray ‘by express words or sayings, that God should shorten [the queen’s] days or take her out of the way’, as some of the queen’s ‘heretical’ subjects were allegedly doing. Another statute of 1555 threatened forfeiture and imprisonment for a first offence, and a traitor’s death for a second, to any who by ‘words or sayings’ denied Philip and Mary’s right to the English throne (1 and 2 Phil. and Mary, c. 10). Stern-minded historians have called these Marian laws ‘ferocious’, but also ‘a weapon which no effective sixteenth-century government could avoid’.⁹⁶ They were certainly less stringent than those of Henry VIII.

In practice, however, these laws too could be dispensed with or superseded. Some offenders were dismissed without censure, while others experienced the full wrath of the regime, extending to hanging, drawing, and quartering. As always, the outcome depended on circumstance, opinion, perceived danger, and personal connections.

Several men were referred to Star Chamber in November 1553 ‘for their lewd reports touching that the late king should be yet alive’, thereby challenging the basis of Queen Mary’s rule.⁹⁷ It was a recurrent popular fantasy that the current monarch was dead, or that a predecessor was still miraculously living. John Smithfield was imprisoned in April 1554 for his ‘malicious and traitorous words against the queen’s highness’.⁹⁸ Thomas Burchall, one of princess Elizabeth’s servants, spent two months in the Marshalsea in 1554 for ‘sundry lewd and seditious words of the estate of the realm’.⁹⁹ Unfortunately the records of the Privy Council give no further particulars about these offending speeches. Nor do we know what the Middlesex labourer Thomas Sandesborough said when he ‘reported certain false and seditious rumours against the queen’s highness and the quiet state of this realm’. In May 1554 the Council ordered Sandesborough to stand in the pillory at Stepney with one ear nailed to the post, ‘and having stood so a convenient time, to cut off his ear from his head, to the terror and example of others that would attempt the like’.¹⁰⁰ At Michaelmas 1557 another offender, ‘one Oldnoll, yeoman of the guard’, was indicted ‘for horrible and slanderous words spoken of the queen… whereby scandal might grow in the kingdom between the lady the queen and… her people’. The government was determined to proceed in such cases, and, after much discussion of which law to apply, they fined and imprisoned Oldnoll under the 1275 Statute of Westminster rather than more recent legislation.¹⁰¹

The London diarist Henry Machyn records several instances between 1554 and 1558 of people ‘set on the pillory … for speaking seditious words’, some with their ears nailed to the post.¹⁰² The martyrologist John Foxe records the case of the Sussex iron-master Richard Woodman, who was investigated for ‘seditious words’ before being burnt as a heretic.¹⁰³ Foxe also memorializes Alice Driver of Grundisburgh, Suffolk, whose ears were cut off in 1558 for likening Queen Mary to Jezebel, before being burned at the stake for her views against the papacy and the mass.¹⁰⁴

On rare occasions the records are rich enough to capture the flavour of treasonable or seditious language and to indicate the circumstances of the offending conversation. The mayor’s court records of Norwich reveal that in February 1554 a company of artisans were ‘sitting by the fire talking of the rebellion that was at London and upon matter of religion’. The restoration of Catholicism and Wyatt’s rebellion were evidently hot topics of conversation. John Toppelow, carpenter, said that the change in religion was ‘not good’, to which Thomas Hammond, worsted weaver, responded ‘that whosoever speak against the queen’s proceedings were very traitors’. Toppelow persisted, however, warning that, if Queen Mary married Philip, ‘we should lie in swine sties in caves and the Spaniards should have our houses, and we should live like slaves and be glad to drink a pot with water’. The speaker, it emerged, had been with Wyatt’s rebels and had escaped back to Norfolk. Another participant in this conversation, John Chamber, a gentleman’s servant, told him ‘it was a pity he came away to bear any tidings’, and counselled, ‘I pray God, John, turn your heart from any such seditious conversation’. Toppelow, however, had the last word, warning that ‘it was not ended, and… all England should repent it, and it would cost a thousand men’s lives’. Even allowing for the likelihood that these deponents rendered their own words in the most favourable light, while tarring others with sedition, the documentation affords a remarkable glimpse of plebeian political discourse.¹⁰⁵

Other echoes of dangerous speech appear in the Middlesex sessions records. In June 1555, after Richard Smith, yeoman, of Shoreditch, spoke ‘seditiously and publicly’, spreading false reports ‘that the queen is dead’, the court ordered him to be put in the pillory in the market place, both ears to be cut off, to be fined a hundred pounds, and imprisoned for three months. The Privy Council confirmed his punishment, ‘to the example of others, according to the statute of the last parliament for spreading false rumours’.¹⁰⁶ Councillors continued to press local magistrates to examine the speakers of slanderous and seditious words, and to discover the sources of ‘these shameful rumours’.¹⁰⁷

Sitting in an alehouse at Deptford, Surrey, on Maundy Thursday 1556, William Harris, a carpenter and gunner on one of her majesty’s ships, complained that ‘the queen hath given this day a great alms [the Maundy money], and given that away that should have paid us our wages’. At this point he should have shut his mouth, having already spoken above himself. But Harris pressed on, opening himself to charges of sedition. He continued, with reference to the queen: ‘she hath undone us and hath undone this realm too, for she loveth another realm better than this.’ The Privy Council took note of these words, to which Harris confessed, but his ultimate fate is unknown.¹⁰⁸ Other mariners found guilty of sedition were flogged from ship to ship or hauled down under the keel.

A final glimpse comes from Kent, where in January 1558 a chain of reports from the mayor of Canterbury, through the Lord Warden of the Cinque Ports, to the Council in London informed Queen Mary of the ‘seditious words’ of Robert Cockerell and Francis Barton. Their actual words are not recorded, but they were evidently deemed dangerous and offensive. In this case the queen herself instructed the Warden to proceed against Cockerell by martial law, so that his execution might be ‘a terror to others’. The recourse to martial law, in the militarized Cinque Ports, points to the difficulties of proceeding under the law of treason. Cockerell was hung as a felon, not hung, drawn, and quartered as a traitor. A correspondent, William Oxenden, reported Cockerell’s death: ‘The last word he spoke was blaspheming, swearing, “by god’s soul, now I go”. So, leaping from the ladder, he departed.’ The other offender, Francis Barton, was treated more leniently, being set in the pillory at Canterbury on market day with papers on his head, as an example to others ‘to be wary what they speak by the king and queen or any in authority’.¹⁰⁹