In this study of the reciprocities binding religion, politics, law, and literature, Debora Shuger offers a profoundly new history of early modern English censorship, one that bears centrally on issues still current: the rhetoric of ideological extremism, the use of defamation to ruin political opponents, the grounding of law in theological ethics, and the terrible fragility of public spheres. Starting from the question of why no one prior to the mid-1640s argued for free speech or a free press per se, Censorship and Cultural Sensibility surveys the texts against which Tudor-Stuart censorship aimed its biggest guns, which turned out not to be principled dissent but libels, conspiracy fantasies, and hate speech. The book explores the laws that attempted to suppress such material, the cultural values that underwrote this regulation, and, finally, the very different framework of assumptions whose gradual adoption rendered censorship illegitimate.
Virtually all substantive law on language concerned defamation, regulating what one could say about other people. Hence Tudor-Stuart laws extended protection only to the person hurt by another's words, never to their speaker. In treating transgressive language as akin to battery, English law differed fundamentally from papal censorship, which construed its target as heresy. There were thus two models of censorship operative in the early modern period, both premised on religious norms, but one concerned primarily with false accusation and libel, the other with false belief and immorality. Shuger investigates the first of these models—the dominant English one—tracing its complex origins in the Roman law of iniuria through medieval theological ethics and Continental jurisprudence to its continuities and discontinuities with current U.S. law. In so doing, she enables her reader to grasp how in certain contexts censorship could be understood as safeguarding both charitable community and personal dignitary rights.
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About the Author
Debora Shuger is Professor of English at the University of California, Los Angeles. She is the author of Political Theologies in Shakespeare's England and other books.
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We must cease once and for all to describe the effects of power in negative terms: it "excludes," it "represses," it "censors."—Foucault, Discipline and Punish
In his famously provocative essay on the licensing of books in Tudor-Stuart England, Christopher Hill noted that Milton's Areopagitica, first published in 1644, was among the "many principled defenses of freedom of the press from pre-publication censorship." One's instinctive response is that Hill must be right: that the reams and reams of material opposing the ecclesio-political status quo written during the first half of the seventeenth century must have included "many" works besides Areopagitica defending and demanding a free press. Since most critiques of the early Stuart regime circulated in open defiance of the licensing laws, and since only a little more than a century after Milton wrote, the American colonists who fought against the English Crown elevated freedom of expression to a fundamental right, one would expect censorship to have been a focal point of protest and resistance over the tense decades leading up to the English Civil War. There are, to be sure, numerous works objecting to specific instances of censorship, but these condemn the authorities' suppression of good books, which was scarcely a controversial position. No one favored prohibiting good books; the disagreement here concerned not censorship but the alleged goodness of the books. However, prior to Milton's Areopagitica , and even, in the near term, thereafter, one finds no "principled defenses of freedom of the press." Only Milton, that is to say, takes the crucial step of defending publication (and reading) of bad books, and even Milton does not defend this as a right.
"Censorship and English Literature," the essay from which Hill's remark about the "many principled defenses" of a free press in early modern England comes, depicted Tudor-Stuart censorship as a repressive instrument of political and ideological control, comparable "to censorship in eastern Europe" under Communist rule-a depiction consistent with the liberal-Whig historiography that dominated the scholarship on this subject into the 1980s. Over the past two decades, much of the best work on Tudor-Stuart censorship, beginning with Annabel Patterson's 1984 Censorship and Interpretation , has undertaken the task of revising this account. On the whole, this research has suggested that Tudor-Stuart censorship was considerably less draconian and systematic than scholars of an earlier generation had thought: that the state had neither the will nor the resources to suppress all dissent; that in practice, censorship tended to be a haphazard affair, less a matter of systematic repression than intermittent crackdowns in response to such local contingencies as an ambassador's protest, a foreign-policy crisis, a conflict between court factions, or the need to placate a political ally. Cyndia Clegg's fine recent study of Jacobean press constraints thus concludes that these were "less a government instrument enacted against an alienated opposition than a 'weapon' used in the controversies of the period by different groups within the establishment against others also within it."
This new scholarship bears the marks of the revisionist historiography of the post-Cold War era, with its picture of discrete and shifting sites of localized tensions—as opposed to the temporal unfolding of fundamental ideological conflict. As such, it has simultaneously opened and barred a large window of scholarly opportunity. If Tudor-Stuart censorship was not a drawn-out attempt to silence dissent, but "a pragmatic situational response to an extraordinary variety of particular events," then it made sense to look carefully at each case to ferret out its particular context and causes. As Clegg notes, the local character of censorship entails that "any act of censorship needs to seek its rationale in the confluence of immediate contemporary economic, religious, and political events" and in relation to "varied and often contradictory and competing interests." Yet if each act of censorship potentially yields a complex microhistory of its particular moment, that history usually leaves few traces and so can only be conjecturally reconstructed. We know, for example, that in 1587 the Privy Council made the unusual decision to have its own members review and censor the just-published second edition of Holinshed's Chronicles. The councilors appear to have combed through the text carefully, in the end mandating a series of smaller and larger excisions. Some of the cuts are hard to explain, but in most cases it seems reasonably clear that they were targeting politically sensitive material. Yet, if that was their object, how is one to explain the fact that they left untouched the hard-to-miss opening sentence of the chapter on Parliament with its (one would think) incendiary assertion that Parliament held "the most high and absolute power of the realm, for thereby kings and mighty princes have from time to time been deposed from their thrones"? Or why in 1632 would Charles have refused to allow the publication of Filmer's Patriarcha , the one major work of absolutist political theory written during this period—a book, as the licenser described it in his cover letter to the king, "in praise of royalty and the supreme authority thereof"? One simply would not have expected that the Tudor-Stuart authorities would, at the highest level, have allowed in print the clear assertion of Parliament's power to depose kings, or refused to allow a defense of the crown's prerogative powers, and no evidence survives to explain why they did so. Even when clues remain, they often add to the mystery. To take just one example, Drummond records that Ben Jonson confessed to having been called before the Privy Council "for his Sejanus & accused both of popery and treason." Although the remark does not explicitly say that the accusations pertained to the play, this seems the obvious inference, and one made by virtually all Jonson scholars. Yet Sejanus depicts the imperial court under Tiberius. It makes no overt reference to popery, nor can it be read as an allegory of papal Rome. Its portrayal of the emperor is sufficiently negative to make the treason charge comprehensible, but on what basis might anyone have thought that the play upholds "popery"?
In truth, I think that I have a fairly good idea as to why the authorities responded to these works as they did. My explanations, however, are guesswork: informed guesses perhaps, but still based on no more than intuitions and assumptions, both of which I have come to distrust, since on those occasions when I have come across a cache of evidence regarding a particular censorship incident, the reasons defied expectation.
Much of the new work on early modern censorship, for all its careful contextualization, finally rests on conjecture, some of it plausible, some of it preposterous—nor is there any way around this, unless, of course, one discovers material containing the actual reasons something was or was not allowed into print. When that happens, the results can be spectacular. Thus, thanks to Peter Lake's dazzling research, we now know why in 1632 the High Commission, with its panel of Laudian clerical judges, imprisoned a self-taught London artisan for a book published with license and without incident fifteen years earlier. Yet this remains one of the very few successful attempts to reconstruct the local contingencies behind a specific act of censorship. Most of the time, too many pieces of the puzzle have been lost for one to determine with any reliability what the original picture looked like.
If Hill's insistence upon the programmatic top-down character of Tudor-Stuart censorship has proved open to fruitful questioning, his equally dubious insistence that such censorship met with sustained and principled opposition also points toward interesting terrain. I can think of only two possible answers to why there were not many defenses of a free press prior to Milton's 1644 tract: either such defenses were suppressed by the censors, or no one wanted a free press, at least not enough to write in defense of one. The first answer cannot be correct. Such a defense probably could not have been legally printed in Tudor-Stuart England, but a vast number of texts that could not be legally printed circulated nonetheless, either via manuscript, which was virtually unregulated, or in foreign and clandestine imprints. The second answer, as most scholars now recognize, is the right one. Yet the implications of this have not been pursued. Most revisionist scholarship, for all its challenges to Hill's model, shares its fundamental premise that a free press is good and censorship bad: that the former stands on the side of liberty, tolerance, republicanism, truth, and literature, while the latter is aligned with hegemonic state power; with the repression of criticism, dissent, and "dangerous ideas"; with punishing "attempts to deliver the truth"; with orthodoxy, authoritarianism, vested interests, and class privilege. Recent studies view Tudor-Stuart censorship as less constraining than Hill had done, but the poles of authorial freedom and state repression remain the salient criteria.
That these are our categories, not early modern ones, would be denied by no one, yet neither is it the case—as is sometimes assumed—that the early modern position, or at least the official one, merely inverts our own values, preferring dogmatism over tolerance, hierarchy over equality, obedience over transgression, orthodoxy over inquiry, containment over subversion, state over individual. In general, Tudor-Stuart persons, authorities and authors alike, did not conceive of censorship in these terms. It is, however, hard for us to think in any other terms, particularly about censorship. They are already in place by the mid-eighteenth century. The first chapter of the first book of Blackstone's Commentaries is entitled "The Rights of Persons," with subsections on "absolute rights," "civil liberty," "liberty of conscience," "personal liberty," "taxation and representation," the "right to bear arms," and "right of private property." No pre-1641 law text contains anything remotely like this: not Coke, not Bracton, not Doddridge, not Lambarde, not Plowden, not Fortescue, not St. German. These jurists have the concepts of individual rights and liberties, but, except for the rights concerning taxation and property, they are not weight-bearing categories. Sometime between 1641 and 1776 they move into the dead center of Anglo-American political consciousness, but I am interested in the period before 1641, in trying to reconstruct its fundamentally different way of thinking about what people may and may not do with words.
The overarching project of this book is thus to recover the system of beliefs and values that made the regulation of language, including state censorship, seem a good idea-that made such regulation seem no less obviously right and necessary than constraints on nonverbal behavior. The sharp separation of the two is a distinguishing feature of modern, and particularly American, jurisprudence, in contrast to earlier law, which tended to take words as seriously as sticks or stones. The regulation of words, of language, was, in fact, a central project of the mid-sixteenth to mid-seventeenth centuries, the period with which this book is primarily concerned. In England, both the mechanisms of press censorship and much of the temporal law, civil as well as criminal, pertaining to transgressive words date from this period. On the Continent, the first papal bull dealing with censorship issues was promulgated in 1515, Leo X's " Inter sollicitudines "; the first papal index of forbidden books in 1559. The papal censorship office, the Congregation of the Index, came into being in 1571. This pan-European attention to the problem of transgressive language responded to the emergent realities of print and Protestantism. Yet the English laws regulating language have very little in common with the papal ones.
Both the papal and Tudor-Stuart laws draw on bodies of jurisprudence going back to antiquity. The English laws, as was known at the time, have their roots in Roman laws of the fifth century B.C.—laws that became the basis for two important sections of Justinian's sixth-century A.D. codification of Roman law, the Corpus iuris civilis. In the early Middle Ages, this material passes into penitentials and confessors' manuals and thence into the theological summae of the thirteenth century, where it becomes the basis for the medieval and early modern Christian ethics of language, Protestant and Catholic. In the sixteenth century, the Christianized Roman law of the medieval theologians loops back into both continental and English secular jurisprudence, but it also ramifies throughout the culture, echoed and explored in sermons, catechisms, courtesy handbooks, essays, histories, poems, and plays—particularly those of Jonson, whose plays ran into serious trouble with the authorities more than once, and of Shakespeare, who had better luck. Chapters 2 through 8 will lay out these intertwinings as they inform, first, the Tudor-Stuart legal rules defining and punishing transgressive language, but also the cluster of beliefs, values, and assumptions that underwrite these laws and whose shaping presence extends far and deep across the literature of the age.
To direct attention to the moral intelligibility of Tudor-Stuart censorship should not be read as denying, or even discounting, its political work. As Richard Hooker long ago remarked, the fact that something has "a politic use" does not mean that it is "a mere politic device." This point has perhaps been obscured in recent discussions of censorship by a tendency to equate politics with the shifting power relations constituted by the interplay of dominion and resistance. Lindsay Kaplan thus comments that the driving force behind the recent proliferation of books on early modern censorship has been a "critical interest in power": the power that reveals itself in the "control the state was able to exercise over literary expression" confronting the power wielded by "the capacity for resistance . . . that literature could pose to political authority."
This seems an unusually restricted conceptualization of the political, which since Aristotle has generally been viewed as including not only the power relations within a society, but also the rules, values, and assumptions that define its identity as a polis , a political community. The contemporary struggles for civil rights and gender equality have been political in both senses; the struggle over gay marriage, primarily in the second. The regulation of language was and is political in both senses as well. "Censorship" almost always connotes the exercise of state power over texts and their authors. Censorship is thus one aspect of the regulation of language, which also works through a myriad of implicit prescriptions and proscriptions. In this respect, the regulation of language works something like traffic regulation, which includes the power of a traffic court judge to strip a drunk driver of his license but also, in Los Angeles, the informal rule that, since traffic flows nonstop through the yellow light, the first three cars waiting to make a left turn may go on red. Traffic regulation, that is, includes the rules, formal and informal, ordering the movement of cars on the road, as well as the punishment of infractions. The Tudor-Stuart regulation of language, which included state censorship, likewise seems best understood as the body of rules shaping, channeling, and disciplining utterance in accordance with the values and ideals of its particular society.
State censorship, of course, can be viciously repressive; it can be used to crush the values and ideals of a society. In such cases, censorship itself becomes a primary target of political dissent. In early modern England, however, the absence of any sustained or sweeping opposition to the system of government constraints on verbal communication—spoken, written, or performed—suggests that these constraints enforced deeply consensual norms. Yet I have no intention of arguing that every instance of censorship enforced such norms. Once a law is on the books, it can be hijacked in all manner of unanticipated directions: so, for example, conservative groups in the U.S. seized on the feminist anti-pornography ordinances of the 1980s to shut down gay and lesbian bookstores. The final chapter of this study will treat the fierce efforts made to get a minister charged with treason for his stance on predestination. This attempt, which involved, on one side or the other, most of the leading political figures of the late 1620s, failed, but throughout the period under investigation it was probably the case—and was believed to be the case—that actions brought by private individuals for verbal transgression were often "based wholly on malice and not on righteous causes." Early modern Englishpersons were notoriously litigious, and the habit of using the courts to harass an enemy was scarcely confined to verbal actions; my experience on university disciplinary committees suggests that the practice has not died out. Were it the case, however, that the state's prosecutions for transgressive words regularly turned out to have been groundless or even just fishy,I would have had to write a very different book than the one I did or plead guilty to inexcusable innocence. I can think of cases where the crown came down on a borderline infraction with bizarre severity, but I can also count them on the fingers of one hand. We consider most forms of censorship impermissible, and therefore assume that if the authorities decide to punish someone for offensive words, they will invent some pretext, so that the ostensible issue will not be the real one. Since, however, early modern persons seem not to have considered laws against verbal trespass any less legitimate than laws against other sorts of trespasses, those in power had no reason to pretend that, let us say, driving a popular radio talk show host off the air was not political but merely the accidental consequence of an attempt to enforce anti-obscenity guidelines.
This book has nine chapters. The core argument is developed in chapters 2 through 8, which lay out the legal and cultural rules governing the regulation of language in England from 1558 to 1641. The first chapter, however, treats not this normative system but its violation. It examines, that is, a number of the most strictly forbidden works of the period: the sorts of material one could get in trouble for merely reading or owning. These are the works that the state considered politically subversive, against which it aimed its big guns. Without a clear sense of what this literature is like, it seems impossible to understand the efforts to suppress it. What, to take a modern example, is one to make of the opening sentence of a verdict that sent several people to prison for terms ranging from thirty-five years to life: "freedom of information, a fundamental human right, requires as an indispensable element the willingness and capacity to employ its privileges without abuse"? The answer is that one can say nothing without first determining whether these are the words of a Stalinist tribunal trying the publishers of a newspaper that had printed accounts of the regime's calculated starvation of ten million Ukrainians—or whether they come from the 2003 verdict handed down by the International Criminal Tribunal for Rwanda convicting three media figures of war crimes and genocide for their dissemination of racist propaganda both before and during the 1994 massacre. Laws, decrees, verdicts, and ordinances are not well-wrought urns; they are intended to do certain things in the world, and those contexts are part of their meaning. In order to understand the regulation of language in Tudor-Stuart England, it is thus crucial to grasp from the outset what was being prohibited. To the extent that one imagines this as classical republicanism or populist social protest, nothing in the chapters that follow will seem remotely plausible.
I went to Berlin for the academic year 2000-2001 intending to complete this book, but before getting down to serious work, I decided to spend a month reading some of the German research on early modern censorship law, all of which dealt with continental Europe: Zurich, Wittenberg, Württemberg, Saxony, Bavaria, Geneva, the Holy Roman Empire, the Catholic West. What I was reading left me with the strong impression that, despite all the local variations, these laws took one or another of two basic forms. The early sixteenth-century imperial criminal code (the Carolina ), the imperial proclamations subsequent to the Peace of Augsburg, and the laws in some territories of the Empire defined and punished transgressive language along lines that closely resembled English law post-1558. However, this type of regulation differed in crucial respects from the predominant continental form, used by the papacy and hence most of Catholic Europe, but also cropping up in various Protestant territories within the Empire and elsewhere. There were thus two distinct types of censorship in early modern Europe, not one. Moreover, the details of chronology and other specific factors made it clear that the English laws were not modeled on the imperial, nor vice versa, but both drew on the same legal paradigm. It took me a while to figure out what this paradigm was and where it came from, but once this became clear, the other pieces all fell into place.
Chapter 2 lays out these two main types of early modern language regulation, both of which turned out to derive from Roman law, but from separate branches. The dominant continental paradigm evolved from late classical heresy law, with the result that it views transgressive language as an ideological offense, as the expression of dangerous ideas. The English (and imperial) laws, in contrast, are based on the Roman law of iniuria —a concept for which there is no equivalent in U.S. law, since it treats as a single category offenses that would now be classified under such disparate headings as assault, battery, libel, invasion of privacy, annoying and accosting, criminal harassment, defamation, infliction of undue emotional distress, and vexatious litigation. As this list suggests, iniuria law does not concern itself with ideological error but with threats to the dignity and integrity of the self—a self understood as both embodied and social. To claim that the regulation of language in early modern England did not, on the whole, seek "to prevent the circulation of dangerous ideas" seems initially astonishing. At least I was astonished: first, because I had always assumed that censorship was a mechanism for suppressing subversive, radical, heterodox, or otherwise threatening ideas; and second, because Milton depicts the English licensing system as precisely such a mechanism. Why he might have done so will, I hope, be clearer by the end of this study.
The book's central chapters explore this unfamiliar model of language regulation. Chapter 3 takes up the legal history: the evolution and internal structure of verbal iniuria in Roman law, along with its piecemeal assimilation by the English ecclesiastical, common law, and prerogative courts as the framework for their regulation of language. Chapters 4 through 8 complicate this narrative along two axes: they take account of the transformation of classical iniuria in theology, canon law, and civil law over the eleven centuries between Justinian and Coke; and they deal with the ways in which these multiple strands of iniuria law shaped the understanding of transgressive language within the larger culture as well as in the necessarily more technical and restricted definitions of the jurists.
The first three chapters (4, 5, 6) in this five-chapter sequence organize themselves around two issues: first, as just mentioned, the Christian reworking of classical iniuria ; but also the related question of the specific values that this Christianized iniuria model sought to enforce, whether by legal sanctions or moral suasion. In order to give some focus and definitional clarity to this second topic, I decided to look at the circumstances in which truth did not matter—where the fact that something was true did not justify publishing it, since the considerations that override truth will be those that justify its censorship. The final two chapters (7, 8) in this sequence take up legal hermeneutics and historical representation. These are linked topics; the epistemic and ethical issues involved in attempting to determine a speaker's (or playwright's) intention also haunt the historian's (or playwright's) attempt to determine the meanings and motives of the dead.
In reading through sixteenth- and seventeenth-century historical writings, one finds numerous works that bear the impress of the Romano-Christian norms that this book explores. Yet one also finds texts that repudiate them. That is to say, they do not merely violate the boundaries of morally permissible representation; plenty of early modern works do that. Rather than breaking the rules, these historical texts appear to be playing a new and different game. In crucial respects—not least among them, the implicit or explicit delegitimation of state censorship—these histories feel modern. Other than Areopagitica , which takes a different tack, these histories are the earliest English works I know of to depict a world in which the traditional model of language regulation no longer makes moral sense. After some inner debate, I decided to treat this material within the chapters on hermeneutics and history (at the end of Chapter 7, to be precise), rather than reserve it for a final chapter on the supersession of the Romano-Christian model by a system of values and assumptions closer to our own. The book is an attempt to map the earlier model, and to affix a diachronic tail onto this synchronic study seemed incongruous and potentially misleading.
Instead, the final chapter takes up the extent and nature of the ideological censorship of print during the Tudor-Stuart era. The italicized qualification matters, since the rules concerning private book ownership, foreign imprints, and manuscript circulation are not necessarily the same as those governing the domestic publication of books by living English authors. No one has ever doubted that there was some ideological censorship of books printed in England, but the principles on which it operated have not been much studied. There are a couple of obvious reasons for this. First, the openly oppositional texts of the period tend to be offensive on so many grounds that one can only guess whether or to what extent their ideas contributed to their prohibition. Second, however much ideological censorship took place, the licensers would have been responsible for the lion's share, and they did not as a rule explain their decisions in writing. Sometimes we have an author's account as to why something of his was censored, but, without external corroboration, the testimony people give in their own defense does not have much evidentiary value.
In order to begin the project of reconstructing how ideological censorship worked, one needs the sort of evidence provided by the Star Chamber trial reports, in which the state presents its arguments, the accused responds through his attorney with counterarguments, and then a half-dozen statesmen, bishops, and judges spell out, often at length, the reasoning behind the verdicts they give. Chapter 8 deals with one such trial—Prynne's 1633 conviction for Histriomastix —but the problem with Prynne's tome, as with the other books that gave rise to Star Chamber prosecutions, was not, in the narrow sense in which I am using the terms, ideological. In the end, I came across only four cases—three clear-cut, one murky-of ideological censorship that left behind a reasonably trustworthy record that included various people, on different sides of the table, giving reasons as to why an author should or should not be punished for a view he maintained in print. Of the four cases, two were centered in Parliament; a third was a common-law trial for felony seditious libel; the fourth, a confrontation involving a king, a bishop, a puritan author, and his licenser. One after another, those taking part in the four cases enunciate principles which, the speakers aver, either are or should be current law. Some participants argue passionately for prohibiting, under penalty of death in one case, the dissemination of ideas deemed a threat to an alleged religious or political consensus. Other participants say nay. (No one, however, so much as mentions freedom of the press or freedom of opinion; the debate is not framed in these terms.) Some participants are leading puritan members of Parliament, Eliot and Pym among them; other participants include a Stuart king and several high-church bishops, including Laud. The religious differences turn out to matter, since speakers' positions regarding ideological censorship consistently divide according to which side of the ecclesio-political fence they called home. The debates over how to deal with the authors who publish dangerous ideas thus bear not only on early modern censorship but also on our understanding of the larger political crisis of the seventeenth century.
Table of Contents
Chapter 1. "That Great and Immoderate Liberty of Lying"
Chapter 2. The Index and the English: Two Traditions of Early Modern Censorship
Chapter 3. Roman Law
Chapter 4. The Christian Transmission of Roman Law Iniuria
Chapter 5. The Law of All Civility
Chapter 6. Defendants' Rights and Poetic Justice
Chapter 7. Hermeneutics, History, and the Delegitimation of Censorship
Chapter 8. Intent
Chapter 9. Ideological Censorship