Primary Sources on Copyright (1450-1900)
Commentary on Henrician Proclamation 1538
School of Law, University of Birmingham
Please cite as:
Deazley, R. (2008) ‘Commentary on Henrician Proclamation 1538', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full Title
3. Tudor Royal Proclamations
4. The English Reformation and Freedom of the Press
5. The Henrician Proclamation 1538
1. Full title
A Proclamation Prohibiting Unlicensed Printing of Scripture (1538)
Royal Proclamation prohibiting the printing and publishing of ecclesiastical and other books without prior licence, as well as the importation, sale and publication of English language texts printed on the continent. This Proclamation established the precedent for the pre-publication licensing of literary works in England.
The commentary describes the background to the Proclamation, in particular the significance of the English Reformation, and Henry VIII's increasing interest in regulating and censuring the press. The commentary suggests that while this early instance of press intervention influenced governmental attitudes to censorship throughout the next 150 years, one of the crucial differences between this and later models of ideological control was that the 1538 Proclamation sought to censure print materials in a manner that was decoupled from the economic ownership and exploitation of such works.
3. Tudor Royal Proclamations
Before beginning to situate Henry VIII's (1491-1547) royal proclamation of 16 November 1538 within the history of the development of copyright law in Britain, some brief comments upon the general nature of the legal status of these proclamations is warranted. Two excellent texts cover the use and significance of the royal proclamation during the Tudor period, Henize's The Proclamations of the Tudor Kings, and Youngs' The Proclamations of the Tudor Queens. In short, the royal proclamations were ‘law' in the sense that they established rules which were enforceable in the courts, but they represented a different kind of law than that enacted by Parliament. Heinze writes about them in the following way:
"They normally did not have the permanence associated with Parliamentary legislation, and they seldom made new regulations except on matters dealing with coinage ... They were used to improve enforcement of old laws by introducing new enforcement procedures and penalties or by publicizing the King's desire to see those laws obeyed. They added to statutes, dispensed with them and even suspended them temporarily, but they normally did not compete with statutes or challenge the authority of Parliament. ... They were, especially during the 1530s, often used as delegated legislation, and in that sense they were used in a very ‘modern' way."
Essential to the running of the early Tudor government, these proclamations were sometimes granted following an appeal from the London city government (for example, in times of food shortages, to arbitrate internal disputes, or to defend the city's rights of jurisdiction), and sometimes were the result of petitions from private individuals and groups (for example, the proclamation of 6 May 1541 which required that every parish have a copy of the Great Bible  can be directly traced to a petition from the printer and book merchant Anthony Marler, who had just previously been granted the right to sell the Great Bible by the Privy Council on 25 April 1541). Often, however, the monarch and the government acted of their own volition. This was certainly the case in relation to those proclamations concerning religious doctrine. Indeed Heinze provides explicit evidence of Henry's personal concern over controversial ecclesiastical texts, shortly before issuing a proclamation in 1546 prohibiting the importation of any religious books printed abroad without the special license of the King.
4. The English Reformation and Freedom of the Press
The 1530s bore witness to the English Reformation wherein Henry would break with Rome and establish the doctrine of royal supremacy, which asserted that the King "shall be taken, accepted and reputed the only supreme head in Earth of the Church of England, called Anglicana Ecclesia". The spark for Henry's actions lay with Pope Clement VII's (1478-1534) refusal to annul his first marriage to Catherine of Aragon (1485-1536) in order that he might marry Anne Boleyn (1500-1536). The Act in Restraint of Appeals was passed in April 1533 which ended appeals to Rome, instead ordering them to be heard by the English church courts. As Guy notes, this Act proved to be the "initial instrument of schism", the preamble to which "vigorously asserted Henry's ‘imperial' kinship: England was an ‘empire' to be governed by ‘one supreme head and king'". It was followed by the First Succession Act of 1533 commanding allegiance to Anne and her issue, the Act of Supremacy 1534 establishing Henry's authority as Head of the Church of England, and finally the Act Extinguishing the Authority of the Bishop of Rome 1536 prohibiting the exercise or defence of papal authority in any way under penalty of præmunire (that is, imprisonment at the King's pleasure and the loss of all of one's property). It was during this period of religious and political upheaval that Henry issued the first of his proclamations concerning publications he regarded as heretical, which similarly signalled an increasing willingness on the King's part to interfere with the freedom of the press on matters other than those of an ecclesiastical nature.
His proclamation of 6 May 1530 revived the medieval heresy laws and, in its concluding section, specifically listed fifteen works by reformers such as William Roy (d. in or before 1531), Henry Bullinger and William Tyndale (c.1494-1536) that were prohibited. Importing, selling, or possessing such works was outlawed, and anyone "having any books or writings of any such erroneous doctrine" was required to deliver them to the bishop of their diocese within fifteen days following the pronouncement of the proclamation. This was quickly followed by a second proclamation, on 22 June, which, on the advice of the clergy, added books by Simon Fish (d.1531), John Firth and (once again) William Tyndale, repeating the requirement that the prohibited books be delivered to the diocesan bishop. This second proclamation also sought to guard against English translations of the bible such as Tyndale's, first published in 1526. While largely accurate, these unauthorised versions nevertheless attacked various aspects of Catholic theology in their annotations and marginalia. As a consequence, the proclamation included an order that no one was to print any books "in English tongue concerning Holy Scripture" not previously printed in the realm until such works had been "examined and approved by the ordinary of the diocese" and the printer had noted the examiner's name and his own on the book. In this aspect of the June proclamation, Siebert finds the first licensing system established under a secular authority, a new regulatory system which provided the forerunner to the more wide-ranging censorial proclamation of 16 November 1538.
5. The Henrician Proclamation 1538
Before the 1538 proclamation was issued Henry engaged in a number of other instances of press regulation. Included in the First Succession Act was a provision rendering it an offence "by writing, print, deed or act, [to] procure or do, or cause to be procured or done, any thing or things to the prejudice, slander, disturbance or derogation of the said lawful matrimony" between Henry and Anne Boleyn. A year later parliament also undertook the first major revision of the law of treason since 1352 in the guise of the Treason Act 1534. The act provided, amongst other things, that anyone who might "slanderously and maliciously publish and pronounce, by express writing or words, that the King our Sovereign Lord should be Heretick, Schismatick, Tyrant, Infidel, or Usurper of the Crown" was to be adjudged a traitor, guilty of high treason, and subject to pain of death. As with the provision concerning Henry's marriage in the Succession Act, even to speak such sentiments was considered treasonable. In 1536 Henry issued a proclamation against seditious rumours and unlawful assemblies, and another ordering the confiscation of John Fisher's (c.1469-1535) books. Finally, Henry issued his royal proclamation prohibiting the "unlicensed printing of scripture" in November 1538, which, in short, prohibited the importation, sale and publication of English texts "from outward parts", the printing and publishing of any books "of divine Scripture in the English tongue" unless they had first been "viewed, examined and admitted" by the King, a member of his Privy Council, or one of the bishops of the realm, and the printing of any other book in English prior to examination by the Privy Council. For this last category of texts the proclamation set out that the words "cum privilegio regali" were not to be put upon a work "without adding ad imprimendum solum".
With regard to the effectiveness of this and other Henrician proclamations, Loades, for one, remains sceptical, writing that "enforcement fell far short of intention" and that "[t]he production and import of illicit books continued". Part of the reason for this no doubt lay in the fact that the authority for licensing most books lay with the Privy Council, which was at the time a considerably over-worked institution. As a result, Loades continues, "only occasionally was it stirred to action against the printers". He concludes: "Although the full weight of the king's authority ... was brought to bear upon the problem of censorship between 1530 and 1547, the voices of heresy and criticism were not stilled". Regardless of its impact upon the content of the printed word, and however the proclamation is to be understood, whether as 'unmistakably' prescribing all forms of free speech, or as primarily concerned with securing Henry's new religious settlement, it established a precedent for the pre-publication licensing of all books, a concept that would inform governmental attitudes to the press, in one guise or another, for the next 150 years. One of the crucial differences between this and later models of ideological control was that the 1538 proclamation sought to censure print materials in a manner that was decoupled from the economic ownership and exploitation of the same. Simply put, Henry was fundamentally interested in the propriety of the written word and not the property therein. And yet, this and later pronouncements played a vital role in the development of copyright within Britain. As Patterson observes: "Copyright was not created because of censorship ... but censorship did aid private persons, publishers and printers, in developing copyright in their own interest with no interference from the courts and little interference from government. The early censorship regulations thus serve as a prelude to the development of copyright".
Government papers and legislation
Act in Restraint of Appeals, 1533, 25 Hen.VIII, c.19
An Act concerning the King's Succession, 1533, 25 Hen.VIII, c.22
Act of Supremacy, 1534, 26 Hen.VIII, c.1
An Act whereby Offences be made High treason, and taking away all Sanctuaries for all manner of High Treasons, 1534, 26 Hen.VIII, c.13
An Act Extinguishing the Authority of the Bishop of Rome, 1536, 28 Hen.VIII, c.10
Act that Proclamations Made by the King Shall be Obeyed, 1539, 31 Hen.VIII, c.8
Act for the Due Execution of Proclamations, 1542, 34&35 Hen.VIII, c.23
Books and Articles
Bennett, H.S., English Books & Readers, 1475 to 1557 (Cambridge: Cambridge University Press, 1952)
Elton, G.R., Policy and Police: the enforcement of the Reformation in the age of Thomas Cromwell (London: Cambridge University Press, 1972)
Gairdner, J., The English Church in the Sixteenth Century from the Accession of Henry VIII to the Death of Mary (London: MacMillan and Co., 1902)
Guy, J., Tudor England (Oxford: Oxford University Press, 1988)
Heinze, R.W., The Proclamations of the Tudor Kings, (Cambridge: Cambridge University Press, 1976)
Hughes, P.L. and Larkin, J.F., eds, Tudor Royal Proclamations, Volume 1, (New Haven and London: Yale University Press, 1964)
Loades, D.M., "The Press Under the Early Tudors", Transactions of the Cambridge Biographical Society, 4 (1964): 29-50
Loewenstein, J., The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002)
Patterson, L.R., Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968)
Reed, A.W., "The Regulation of the Book Trade before the Proclamation of 1538", Transactions of the Bibliographical Society, 15 (1918): 157-184
Siebert, F.S., Freedom of the Press in England 1476-1776 (Urbana: University of Illinois Press, 1965)
Steele, R., "Notes on English Books printed abroad, 1525-1548", The Library, 4th Ser., 11 (1931): 189-236
Youngs, F.A., The Proclamations of the Tudor Queens, (Cambridge: Cambridge University Press, 1976)
 R.W. Heinze, The Proclamations of the Tudor Kings (Cambridge: Cambridge University Press, 1976).
 F.A. Youngs, The Proclamations of the Tudor Queens (Cambridge: Cambridge University Press, 1976).
 See also Act that Proclamations Made by the King Shall be Obeyed, 1539, 31 Hen.VIII, c.8, and Act for the Due Execution of Proclamations, 1542, 34 & 35 Hen.VIII, c.23.
 Heinze, 294.
 A Proclamation Ordering [the] Great Bible to be Placed in Every Church, 6 May 1541, in P.L.Hughes and J.F. Larkin, ed., Tudor Royal Proclamations. 3 vols. (New Haven and London: Yale University Press, 1964), 1: 296.
 Heinze, 9, 188.
 A Proclamation Prohibiting Heretical Books; Requiring [the] Printer to Identify Himself, Author of Book, and Date of Publication, 8 July 1546, Hughes and Larkin, 1: 373. The proclamation was designed "to auoide and abolish suche englishe bookes as conteine pernicious and detestable errours and heresies". Shortly before this the King had written to Mary of Hungary complaining that books written by ‘heretical and wicked men both in Latin and English are sent over'; Heinze, 12. For a list of books prohibited by name during Henry's reign see R. Steele, "Notes on English Books printed abroad, 1525-1548", The Library, 4th Ser., 11 (1931): 189-236.
 Act of Supremacy, 1534, 26 Hen.VIII, c.1.
 John Guy, Tudor England (Oxford: Oxford University Press, 1988), 132.
 An Act concerning the King's Succession, 1533, 25 Hen.VIII, c.22.
 See n.8.
 An Act Extinguishing the Authority of the Bishop of Rome, 1536, 28 Hen.VIII, c.10. For a general commentary on the English Reformation see Guy, 116-53.
 See for example Henry's Proclamation Suppressing Publication of Military Rumours, 18 May 1544, Hughes and Larkin, 1: 329.
 A Proclamation enforcing Statutes against Heresy and Prohibiting Unlicensed Preaching Heretical Books, 6 May 1530, Hughes and Larkin, 1: 181. Many scholars date this proclamation as having been issued in or before March 1529 (see for example Hughes and Larkin, 1: 181). Elton however suggests that the proclamation was actually issued in May 1530; see G.R., Elton, Policy and Police: the enforcement of The Reformation in the Age of Thomas Cromwell (London: Cambridge University Press, 1972). See also Gairdner who also dates the denunciation of Tyndale's work to this later period; J. Gairdner, The English Church in the Sixteenth Century from the Accession of Henry VIII to the Death of Mary (London: MacMillan and Co., 1902), 126-27.
 Hughes and Larkin, 1: 183-86.
 A Proclamation Prohibiting Erroneous Books and Bible Translations, 22 June 1530, Hughes and Larkin, 1: 193.
 See H.S. Bennett, English Books & Readers, 1475 to 1557 (Cambridge: Cambridge University Press, 1952), 34-36.
 Hughes and Larkin, 1: 195-96. About these proclamations, Elton writes: "[They] represent Lord Chancellor More's attempt to save the realm from heresy, the sum total of his contribution to government policy during his tenure of office. In his opening speech to the Parliament of 1529, More had made his intentions plain: he had announced his conviction that Wolsey's laxness had allowed dangerous notions to spread in England and hinted at changes to come. He meant to step up the campaign against heresy, but, Parliament and especially the Commons being unsympathetic, he resorted to prerogative action to construct a system for bringing offenders into the hands of the Church's machinery. The first proclamation denounced the spread of Lutheran heresy and commanded all men bearing authority right down to village constables to help prevent deviationist preaching and teaching. It imposed imprisonment for suspected heretics and ordered sheriffs to assist the bishops in carrying out sentences against anyone fond guilty. A general inquisitorial campaign, seeking out Lutherans and Lollards, was to be undertaken by the Council, the judges and the justices of the peace, but More demonstrated his tenderness for the liberties of the Church by subordinating all these activities to the penal power of the bishops. In fact, this proclamation created the nearest thing, the Elizabethan and early-Stuart High Commission possibly apart, to an Inquisition that England was ever to know"; Elton, 218-19. Loades also comments: "None of these proclamations provided any secular penalties, or any additional machinery of administration, but they seem to have been rather more effective than such omissions might suggest. Close co-operation between the clerical authorities and royal agents produced a series of prosecutions. Richard Bayfield, Michael Lobley, Segar Nicholson, John Rowe and others were arrested during 1531 for [breach of the June proclamation], and Bayfield was burnt for heresy in December of that year"; D.M. Loades, "The Press Under the Early Tudors", Transactions of the Cambridge Biographical Society, 4 (1964): 29-50 (32).
 F.S. Siebert, Freedom of the Press in England 1476-1776 (Urbana: University of Illinois Press, 1965), 46. Prior to this royal proclamation, in the 1520s, Wolsey, as Papal Legate, and Tunstall, the Bishop of London had sought to control the influx of Lutheran texts into England by a variety of means. Wolsey, keen to carry into effect the injunction of Pope Leo X, in July 1520, that the books and writings of Luther be condemned and destroyed, choreographed two separate public burnings of the reformer's works (in May 1521, and in February 1526). Tunstall, on the other hand met twice with the booksellers of London (in October 1524, and in October 1526) to warn them not to "sell, hold, give or in any way part with any books containing Lutheran heresies or any other books conceived either in Latin or English, and that they neither print nor cause to be printed any other works whatsoever (except only works approved by the Church) unless first they exhibit the same to the Lord Legate, the Archbishop of Canterbury, or the Bishop of London"; Tunstall's Second Monition [of October 1526] to the Booksellers, reprinted in A.W. Reed, "The Regulation of the Book Trade before the Proclamation of 1538", Transactions of the Bibliographical Society, 15 (1918): 157-184 (170). In Tunstall's monitions to the booksellers, which were enforced in the Consistorial Court, we find the genesis of the concept of a diocesan licensing system evident in Henry's proclamation of June 1530. For a further account of the actions taken by Wolsey and Tunstall, see Bennett, 33-35; see also Siebert, 42-44.
 Act of Succession, 1533, s.8.
 An Act whereby Offences be made High treason, and taking away all Sanctuaries for all manner of High Treasons, 1534, 26 Hen.VIII, c.13; on the Treason Act, 1534, see Elton, 263-92.
 Treason Act, 1534, s.2.
 Indeed, as Elton establishes, many more people were prosecuted under the Treason Act, 1534, for speech acts than for writing or publication. Between the coming into force of the Act on 1 February 1535 and Cromwell's execution in July 1540, 347 charges of treason were instigated on account of speech acts, by comparison with only ten prosecutions based upon the written word. Of these ten only one resulted in execution. See Elton, 387.
 A Proclamation Ordering Punishment for Seditious Rumours; Martial Law for Unlawful Assemblies, 29 October 1536, Hughes and Larkin, 1: 244-45.
 A Proclamation Ordering Surrender of Bishop Fisher's Sermon Books, 1 January 1536, Hughes and Larkin, 1: 235.
 A Proclamation Prohibiting Unlicensed Printing of Scripture, Exiling Anabaptists, Depriving Married Clergy, Removing St. Thomas à Becket from Calendar, 16 November 1538, Hughes and Larkin, 1: 270.
 It was also forbidden to print or import any religious text with "any annotations in the margin, or any prologue or additions in the calendar or table"; moreover, no translations of foreign texts were to be published without the name of the translator being printed in the book.
 In this transfer of responsibility for the licensing of books from the diocesan bishops to the Privy Council, Loades finds evidence of an intention to regulate both religious and political ideology. He writes as follows: "Although these regulations were ostensibly for the protection of true religion, it is clear from the controlling influence given to the Privy Council that political as well as theological enemies were the target"; Loades, 33. See also Bennett, 37-39.
 Loades, 33.
 Ibid., 34.
 Ibid., 34.
 Siebert, 48.
 Heinze, 138-39; see also L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968), 23-24.
 See for example Joseph Loewenstein, The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002), 81, 110-11.
 Patterson, 21.