Copyright history and the unappreciated legacy of the licensing acts

Before there was the Statute of Anne (1709 or 1710, choose your calendar), there was a series of so-called licensing acts, dating from the 16th century and running until 1695, which regulated (censored?) printing and publishing in England in the interests of the Crown and the religious authorities. Law school curricula on copyright address the licensing acts briefly, if at all. On the whole, only academic types really pay any attention to them, mainly over the extent to which they created a hermetically sealed system of regulation and control. Otherwise, who cares?

Well, this Kat, for one. True, the licensing acts were replaced by a totally different scheme, the Statute of Anne, which shaped the modern copyright system. But ironically, the licensing acts, or more precisely, the short-term lapse of this regulatory regime between 1679-1685, helped create the circumstances that fostered restrictive religious policies in England for more than one hundred years and led to the rise of the first genuine political parties, the Whigs (may they rest in peace) and the Tories (yes, the same Tory party). It even contributed to the Glorious Revolution of 1688 and the end of the House of Stuart.

If the Irish saved civilization, here, and the rediscovery of Lucretius helped bring about the Renaissance, here, then it is appropriate that Kat readers consider how the licensing acts helped change the course of English history.

Our focus is on the aftermath of the restoration of the Stuarts to the English throne in 1660 in the person of Charles II. The prime aim of Charles II was to try and consolidate his power, including vis a vis Parliament. In the background was a long-lingering suspicion towards the Papacy (even if there were only 50,000 Catholics out of a population of 5,000,000), especially over the concern that the Pope still had designs to restore Catholic primacy in England. This was later exacerbated by rumors that Charles II was contemplating embracing the Church (his wife was Catholic) and that his brother, James, had converted to Catholicism.

In the face of these challenges, one of measures that Charles II took (in 1662) was to expand the scope of the licensing acts via the Licensing of the Press Act, this —

… for preventing the frequent Abuses in printing seditious, treasonable, and unlicensed Books and Pamphlets, and the regulating of Printing and printing Presses.

In so doing, the act sought to enable the Church of England to act on behalf of the State, thereby bringing together regal and ecclesiastical interests.

The implementation of this act was taken over by Roger L’Estrange, a rabid royalist and described as a “political pamphleteer”, who had been granted a letters patent from Charles II in 1663. In effect, this empowered L’Estrange to use his regulatory powers over printing to act those perceived to be acting against the king and the religious arrangements that were put into place after the Restoration (the Act of Uniformity 1662). This meant the occasional execution and disembowelment of heterodox publishers and control over the publication of news.

Even when control over the publication of news was taken from L’Estrange, and placed in the hands of several Secretaries of State, here, the result was the same: control over the publication of news (through what became the London Gazette). By the early 1670’s, the Licensing of the Press Act 1662 seemed to entrench both the crown and the religious authorities. And then came Titus Oates and the Popish Plot.

Popish Plot

Oates was a serial loser, dating back to his student days at Oxford (from which he was expelled). He himself had converted to Catholicism (“the better to understand the enemy,” he explained). Yet, together with his sidekick and sponsor, Israel Tonge (the lack of money was a constant problem for Oates), and beginning in mid-1678, they succeeded in fomenting wide-spread anti-Catholic hysteria. Oates concocted a minutely detailed, wholly fabricated plot according to which Charles II would be assassinated and his Catholic brother James would then accede to the throne.

Charles II was, generally speaking, skeptical of the plot, but Parliament pressed forward with investigations and indictments. Outside, there was wide-spread anti-Catholic hysteria. Appreciate the irony here—it was the king who was far from wholly embracing the plot (presumably against himself), while it was Parliament who pushed ahead with the accusations.

Against this background, the Popish Plot witnessed a series of trials, which ran their course by 1681. Reputations were lost, even worse, lives were lost (over 20 Catholics, many of high rank, were put to death). Oates, for his part, was convicted of perjury, but only in 1685, and was sentenced to life imprisonment. But “life” did not mean “life”, because in 1689, a year after the Glorious Revolution, William of Orange and Mary granted Oates a pardon and a yearly pension of £260, which was later raised to £300 annually.

Amidst this turmoil, the Licensing of the Press Act lapsed in 1679, meaning that the London Gazette longer had a monopoly on the news. With this lapsing, there was the sudden rise of multiple formats of published contents for commercial benefit. At the public level, it enabled a broad, energetic, and sometimes scurrilous public conversation in print in connection with the Popish Plot. With no restrictions on the publication by virtue of the Licensing of the Press Act, the only remedy were actions, post-publication, for libel.

Exclusion Crisis

The event that perhaps more than any other gave expression to this flourishing of the publishing industry was the so-called Exclusion Crisis. Only a few months prior to the lapsing of the Licensing of the Press Act in 1679, a proclamation was made whereby all Catholics who were not tradesmen or property owners were obliged to leave London and Westminster (indeed, they could not enter a twelve-mile (c.19 km) radius of London without special permission). Moreover, at the end of the 1678, a further Test Act was passed, which had the effect of excluding Catholics from the House of Commons (which remained in effect until the early 19th century).

Adding to these anti-Catholic actions, as a spill-over from the Popish Plot, James was connected with some scandalous, pro-Catholic diplomacy, which weakened the hand of Charles over Parliament. Charles, in response, dissolved Parliament. Following the ensuing election, centering on Oates’ initiative to exclude James from the throne via the so-called Exclusion Bill, debate raged, much of it in published form unfettered by the restrictions under the Licensing of the Press Act, both pro and con. In response, Charles decided to prorogue, i.e., postpone the sitting of Parliament (shades of Boris Johnson and the autumn of 2019).

Debate over these actions led to the rise of two general factions. Those who supported petitioning the king to recall Parliament in order to pass the Exclusion Bill were referred to as ‘Petitioners', while those who opposed the Bill were known as “Abhorrers”. In short order, these two ad hoc factions took on more permanent shape in the form of nascent political parties-- the Petitioners became the Whigs while the Abhorrers were known as the Tories.

The (temporary lapsing of the) Licensing of the Press Act played no small part in this. As has been described--

The fortuitous expiration of the Licensing Act, which provided for censorship of the press, at the beginning of the conflict opened the floodgates to printed works of controversy, which appeared in numbers unprecedented since the early 1640s. The number of items issued from London presses more than doubled, from 1,081 in 1677 to 2,145 in 1680. Printed items ranged from lengthy pamphlets to broadsheets, ballads, visual caricatures and even decks of playing cards illustrated with politically relevant images, such as illustrations of episodes in Oates's narrative. Since coffee houses stocked many of these items, Londoners did not necessarily have to buy them.

This is not to say that political parties would not otherwise have developed. But it was the opportunities for expressing published political views in the context of the Popish Plot and the Exclusion Bill that played a material role in their creation at that given moment of time.

In any event, in 1685, Catholic James II acceded the throne and reinstated the Licensing Act, but to no avail. In 1688, he was deposed in the Glorious Revolution, replaced by William of Orange and Mary. In 1695, the Licensing of the Press Act again lapsed, to be replaced a decade later by the very different Statute of Anne. Copyright law then went in a different, Enlightenment direction.

Still, the unappreciated legacy of those events that were nourished by the lapsing of the Licensing of the Press Act between 1679-1685 remained.

The pictures above are all playing cards that were created during the Popish Plot and are in the public domain.

By Neil Wilkof