Since the Victorian era, even though they lack a formal written constitution, the English people have always enjoyed a high degree of freedom of speech and political freedom. In the early nineteenth century, many journalists and publishers on the radical end of the political spectrum found themselves in the dock on charges of sedition. Yet sedition has always been a very vague idea and, for most people, is synonymous with treason.
The latter had been clearly defined in legal terms with the passage of the Treason Felony Act (1848), which held that a person was guilty of treason if they were to:
Within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty, within any part of the United Kingdom, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty’s dominions or countries under the obeisance of her Majesty, and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing or by any overt act or deed.
The date on which that Act was passed is significant; the year 1848 saw a high degree of Chartist activity, culminating in the large open air pro-democracy demonstration at Kennington Common; and a few leading Chartist activists such as William Cuffay were prosecuted under the Treason Felony Act. In reality, the Chartists were never revolutionaries and most Chartist thinkers envisaged a place for the monarchy in a reformed and democratic parliamentary system.
The Treason Act did little to clear up a question which some law-makers were asking themselves, namely: what was sedition? Could one be guilty of sedition but not treason? How were the two offences to be separated? Treason was the carrying out of a physical act intended to deprive Her Majesty of her kingdom, of course, but was a person who, say, merely published an inflammatory remark about the Queen and the government still guilty of treason – a very serious offence – or seditious libel?
The answer to this question came in a trial held in February 1868, during which two Fenian newspapers, the Irishman and Nation, the proprieters of whom had Irish nationalist sympathies and who resented the domination of Ireland by the British were hauled into the dock to answer charges of sedition. The proprietor’s defence counsel claimed that they were just the neutral transmitters of information in the same way that The Times might publish a speech by a foreign actor criticising the British government yet remain guilt-free from committing a seditious act. The newspaper owners could not be charged with treason, for they had done nothing physically to ‘move, stir, compass, or design’ to deprive the Queen of her kingdom. So instead they were charged with seditious libel.
Sedition had been a common law offence since the seventeenth century and had indeed focused upon published writings, but taking the law at its word (the original Act is only a few lines long), sedition could include anything from the publication of a satire on government policy to an outright call for rebellion printed in the columns of a newspaper. So, it was up to the judges in question – Mr. Justice Fitzgerald and Mr. Baron Deasy – when a Grand Jury was assembled in the Fenian Case to define just what, exactly, seditious libel was; sedition preceded the act of treason, though it was not necessarily treason in itself:
A seditious libel was a crime against society nearly allied to treason, which it but too frequently preceded but by a short interval. It was a comprehensive term, and embraced all those practices, whether by word, or deed, or writing, which were calculated and intended to disturb the tranquillity of the State and lead the Queen’s subjects to resist or subvert the established government and laws of the Empire. Its objects were to create commotion and introduce discontent and disaffection, to stir up opposition to the laws and Government, bring the administration of justice into contempt, and its natural and ultimate tendency was to excite the people to insurrection and rebellion.
The focus here, it will be noticed, was upon the written word; to be seditious was to write something which was not only critical of the government – if that was the only criteria, indeed, many of the leading radical journalists of the Victorian era such as G. W. M. Reynolds would have found themselves in the dock – but the writing(s) in question had to constitute a call to arms to other people to ‘disturb the tranquillity of the State’. Thus, if any of Her Majesty’s subjects took the seditious message to heart and acted upon, say, a call to arms and open rebellion and tried organising a revolution, the subject would be guilty of treason, while the publisher of the newspaper would be guilty of sedition.
But was this not all a bit subjective? Printed matter that was considered as seditious in one era was not necessarily so in another. I take the example here of Robert Southey’s Wat Tyler (1817); it was called seditious by one MP in Parliament when it was first published and, having just come out of over 25 years of war with Revolutionary and Napoleonic France, Southey’s talk of liberty, equality, and brotherhood might well have been interpreted as seditious. But when the collected poetical works of Robert Southey were published in the 1850s by a variety of publishers, it was hardly seditious at all, and was probably rather quaint. Similarly, Thomas Paine’s writings in the 1790s were considered seditious by the government of the day yet in the late Victorian period one could get hold of a cheap copy of Paine’s writings fairly easily.
That was the whole point, however, according to Justice Fitzgerald. Time and context determined whether something was seditious, and while authors may be the main culprits in committing the act of sedition, publishers themselves were just as guilty if they published a particular set of writings at a time of political agitation and disturbance, as Fitzgerald went on to say when he commented upon the defendants’ key defence, that they were just a neutral transmitter of information:
The law gave no such sanction, and did not in the abstract justify or excuse the republication of seditious articles, no matter from what source they might be taken. In reference to all such publications the time, the object, and all the surrounding circumstances ought to be taken into consideration, and might be as such as would rebut any inference of a criminal intention in the publisher. If, for instance, one of the leading newspapers of this country should publish in good faith the proceedings of a foreign conspiracy with a view to communicate information or as a warning to the nation, accompanying it with proper editorial comments,, those remarks would, by any rational mind, negative the idea of any seditious design. But if, on the other hand, at a period of great political disturbance and disaffection, when treasonable confederacies existed urging on the deluded people to armed insurrection, a journal was found deliberately to devote a considerable portion of its issue to the re-publication from foreign sources of treasonable and seditious articles addressed to the people of this country, and without a word of warning or a note of disapproval, then it would be but reasonable to infer that the publisher intended what was the natural result of this course of action – namely, to promote seditious purpose.
Of course, this all sounds rather worrying so far; in theory, the government could simply say that certain writing(s) were seditious and the poor authors and their publishers could be hauled into court on what were quite serious charges. Luckily, this was not the case; the prosecution had to prove seditious intent.
The indictment for sedition must specify the acts, the overt or open acts, by which seditious intent was evinced, and in the cases to be specially submitted for their consideration the acts relied on as indicating the seditious spirit of the accused party were certain newspaper publications which were alleged to print seditious libels.
With the authors of seditious works, intent was perhaps easier to prove; they had probably written many seditious works before and seizure of letters, diaries, unpublished articles and copies of published articles might go some way to proving seditious intent on the part of the author. It was trickier to punish the publishers; a number of manuscripts might pass through their printing house and an allegedly seditious work might be one among a number of their output which involved a number of supposedly respectable publications too.
Yet according to Justice Fitzgerald, publishers were a greater danger to the government than the authors of seditious works:
It was scarcely necessary for him to point out to them that to accomplish treasonable purposes, and to delude the weak, the unwary, and the ignorant, no means could be more effectual than a seditious press. With such machinery the preachers of sedition could sow widecast those poisonous doctrines which if unchecked culminated in insurrection and revolution. Lord Mansfield likened a seditious press to Pandora’s Box – the source of every evil. These words might be of a seditious character, but … they scatter the poison far and wide’.
Sedition of course was a lesser crime than treason;
Being inconsistent with the safety of the State, is regarded as a high misdemeanour, and as such punishable with a fine and imprisonment; and it had been truly said that it was the duty of the Government, acting for the protection of society, to resist and extinguish it at the earliest moment.
The Treason Felony Act provided for a much harsher sentence than a fine and imprisonment. The Grand Jury eventually decided to indict the proprietors of the Irishman and Nation for treason; this did not harm either of the papers’ fortunes, however, for both lasted until c. 1900.
 An Act for the Better Security of the Crown and Government of the United Kingdom, ch. 12. 11 & 12 Victoria (London: HMSO, 1848), online edn. http://www.legislation.gov.uk/ukpga/Vict/11-12/12/section/3 [Accessed 23 November 2018].
 ‘Ireland: From Our Own Correspondent’, The Times, 12 February 1868, 12.
 Stephen Basdeo, The Life and Legend of a Rebel Leader: Wat Tyler (Barnsley: Pen and Sword, 2018).