Cantor - Privacy In Colonia America

PRIVACY IN COLONIAL AMERICA

~

by

NORMAN F. CANTOR, COLUMBIA UNIVERSITY il

A REPORT SUBMITTED TO THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Special Committee on Science and Law

Confidential -- For Private Circulation Only January 9, 1964

PRIVACY IN COLONIAL AMERICA The practice of wire-tapping to obtain evidence of criminal activity calls to mind analogous situations during the colonial period of American history.

Particu-

larly pertinent are the privilege against self-incrimination, the protection of communications between spouses, the protection of communications between attorneys and their clients, and the procedural safeguard embodied in the practice of issuing search warrants.

If one considers the right of

privacy as more than a freedom from state interference with the individual, but rather as a positive right to express oners opinions, and to question the legality of an imprisonment, the colonial precedents concerning seditIous libel and habeas corpus are also in point. While this preliminary study does not pretend to be an exhaustive review of all secondary materials relating to the topic, it does present a reasonably thorough collection of articles gleaned from the Index to Legal Periodicals and the Writings in American History.

In addition it includes

a number of the more scholarly monographs which have appeared in the past forty years. In addition to collecting the extant studies concerning the right of privacy in colonial America, I have attempted to define my own approach to colonial legal history, to stress the importance of the New England "Bible Commonwealths!! to the development of colonial law, and to present

I

a tentative approach to the study of the right of privacy in the American colonies. ~

1.

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I

A.

I

I

THE HISTORIOGRAPHY OF AMERICAN LEGAL HISTORY For a relatively neglected field of historical

study, the story of the development of American colonial law has passed through a number of phases, known in the historian I S terminology as l'interpretations!l.

These "inter-

pretations" may be roughly divided into four general categories, as follows: (1) The orthodox legal theory, adopted by all of the courts and by most lawyers, which contends that the law of the American colonies was identical to the common law of England (2) The "frontier" theory that the colonists developed their own law, essentially different from English precedents (3) The II cus tomary law theory" that the colonists applied English local customs, rather than the common law developed by English royal courts at Westminster Hall

(4) A slowly emerging synthesis of the foregOing, which stresses geographical and intellectual forces causing adaptations in a legal system modelled after the general outlines of the English local and common law system. l

1.

For a discussion of the various theories see Chafee, Colonial Courts and the Common Law, 68 Mass. Historical Socly Proceedings (1944-47), 132-159 (1952).

2

It is this latter system of interpretation which I feel to be most fruitful.

Accepting the English legal system as a

base it proceeds from a large mass of recorded decisions and a long line of English statutes.

The legal historian

then adopts the attitude that English law is likely to be determinative unless there are present in the colony strong geographical reasons for altering English law, or strong intellectual reasons for doing so.

The manuscript court

records are then closely examined for evidence of the acceptance or rejection of the basic English rule of law. Ever since 1893 historians have been locked in heated controversy concerning the impact of frontier conditions upon American civilization.

One need not lend

support to either side of the controversy by stressing that the law of the frontier is very definitely not the law of the coastal settlements.

The situation is not unlike the

emergency grant of extra-constitutional powers to the President of the United States in time of war; there are certain occasions when a society meets an emergency which cannot be faced by normal governing techniques - the American frontier was just such a situation. 2

2.

What is

A recent perceptive scholar of colonial legal institutions shows a certain intellectual resistance to accepting the effects of the "front.ier", where he notes extensive and extraordinary powers granted to a (Continued)

3

debatable

is not whether there was a change in the law,

but rather whether that change was a permanent one.

As to

this question, the evidence is quite elusive because of widespread illiteracy on the frontier and a scarcity of educated lawyers in the outlying settlements. B.

THE DYNAMIC QUANTITY IN SEVENTEENTH CENTURY AMERICAN LAW Professor Julius Goebel performed a valuable

service

for legal historians by demonstrating that English

law of the seventeenth century retained large segments of local customary law, which were transferred to the New England settlements.3

While Chafee questions Goebel's conclusion

with the contention that it is not reasonable to assume the Pilgrims would apply only local customary law and ignore the common law of England,4 it does seem that Goebel's thesis draws attention to the fact that in stressing local customary

(Footnote 2 continued) Massachusetts magistrate on the fringe of settlement. Nevertheless he notes the absence of a grant or pettit jury on the Massachusetts frontier and the uniformity of Massachusetts criminal procedure. His conclusion that -ehere is no IIfrontier rr influence in the administration of justice in western Massachusetts seems premature. Smith, ed. , Colonial Justice in western Massachusetts (1639-1702: The 0,1 pync on Cour Recor 3.

King's Law and Local Custom in Seventeenth Century New England, 31 Colum. L. Rev. 416-448 (1931).

4.

Supra note 1, at 155.

4

law at the expense of English common law, the Pilgrims were extensive innovators in the development of legal institutions. Is it not possible that their contribution was the subordination of common law to customary usages and the requirements of a tlfrontier" environment?

The very isolation of Plymouth

and the other Massachusetts settlements from direct supervision by the Privy Council would facilitate such innovations.5 Indeed it would be surprising if the New England experience did not result in some basic changes in the law. Shielded from royal supervision by a corporate charter and the Atlantic Ocean, driven to migration by a conflict of political as well as theological doctrine, and charged by God with the mission of erecting upon New England's rocky shores a model Puritan commonwealth, the intellectual attitude of New Englanders was one ripe for alterations in the English legal system.

Concessions to the demands of the

frontier notwithstanding, the most significant single force in the shaping of American law in the seventeenth century is the dynamic intellectual energy of Puritan New England. The extensive reference to Biblical law in the laws of Massachusetts,6 a stress upon written codes and

5.

Morris, studies in the History of American Law 18 (1930); Haskins, Law and Authority in Early Massachusetts 64 (1960).

6.

Haskins, supra note 5, at 144-151 gives parallel passages of Biblical and Massachusetts laws. See also Wolford, The Laws and Liberties of 1648, 28 B.U.L. Rev. 430 (1948), pointing to a similar trend in England.

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constitutions,7 and a strong resistance to the professionally trained law-man,8 mark the New England legal systems as unique experiments. In noting the importance of puritan thought upon the development of American law, the scholar must give due consideration to the fact that these legal concepts were not restricted to New England.

Recent scholarship in intellectual

history has found Purit.an influence in the so-called "Cavalier" colony of Virginia,9 and a legal historian has traced the

7. Wolford, supra note 6, at 431.

The Plymouth Code of

1648 contained a rudimentary bill of rights, Haskins,

The Legal Heritage of Plymouth Colony, 110 U. Pa. L. Rev. 849 (1962). Codifications were distinctly PUritan, rather than American phenomena, fora.ttempts at codification were made in England under the Commonwealth, Wolford at 427. 8.

As might be expected the absence of trained lawyers in New England created procedural variations from old England, and also from the other American colonies, Chafee, supra note 1, at )51 (Maryland and Rhode Island compared), Morris, supra note 5, at 47 (fatal variance in pleading in New York, 1690), 56 (ejectment used in New York and southern colonies, not in New England). This seems a Puritan, rather than New England phenomenon, for Virginia experienced a campaign against la\'lyers during the Commonwealth period, Scott, Criminal Law in Colonial Virginia 131 (1930). See also Chafee, supra note 1, at 150. For assertion that prejudice against lawyers ruined Massachusetts Bay, see Matthews, The Results of the Prejudice Against Lawyers in Massachusetts in the 17th Century, 13 Mass.L. Q. 73-94 (1927) .

9.

Miller, Religion and Society in Early Literature: The Religious Impulse in the Founding of Virginia, 6 William and Mary. r ser. 9 9 ; Chum ey, Colonial Justice in Virginia 12,13 (193 ).

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flow of Massachusetts jurisprudence not only to the daughter Bible Commonwealths, but also to the royal colonies to the 10 south. Puritanism was the formative influence present in the legal system of seventeenth century New England which gave rise to a distinctly new body of law.

The "City Upon a

Hill" exported these concepts to its neighboring colonies 11 along the Atlantic coast of North America, and it was not until New England Puritanism declined in vigor at the end of the seventeenth century that the tidal wave of Puritan legal concepts was halted by the introduction of English lawyers and the closer supervision of colonial legislation by the Privy Council. C.

RAISON Dr ETAT AND RIGHTS OF PRIVACY IN NEW ENGLAND In our twentieth century the civil liberties of

the individual have become the subject of much discussion and considerable emotional attachment.

It is imperative

that one approach the study of the right of privacy with an objective awareness that every liberty or right granted to

10.

The most thorough treatment of this southern migration of New England law is Haskins & Ewing, The Spread of Massachusetts Law in the Seventeenth Century, 106 U6 Pa.L.Rev. 413-418 (1958); see also Haskins, op.cit: supra note 7, at 849.

11.

Goebel & Naughton, Law Enforcement in Colonial New York: A Study in CrImInal Procedure~1664-1776)-056 TI944)~ noting~he unusually extensive powers of a Justice of the Peace in New York-particularly in Suffolk County, a large Puritan settlement. See also Morris, supra note 5, at 79.

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an individual member of society does, in some degree, decrease the ability of that society to protect itself.

NQw, and al-

ways, there has been a delicate balance between rights of individuals and the rights of society; there can be no doubt that in the seventeenth century the interests of the individual were definitely subordinate to those of the group.12 While the myth of Puritan religious toleration has gradually been destroyed, there still remains a strong tendency to attribute to the leaders of the Bay Colony a certain respect for individual rights born of their own persecutions at the hands of the English Courts of High Commission and star Chamber.

In fact, the very reverse was true; once in

political control the leaders of the Puritan Commonwealth proceeded to govern with a strong sense of community interests, an«an inclination to sharply restrict individual liberties.

As a persecuted minority in old England they had

utilized the "Political Covenant" as a philosophical bulwark for individual rights; as a virtually self-governing republic, the Puritans of Massachusetts Bay used the same Covenant as a weapon to crush individualism. 13

Rationalizing that James I

had used "reason of state" for "atheistical" purposes, the Puritan leaders justified their arbitrary actions by appealing

12.

Haskins, op.cit.supra note 7, at 852.

13.

Haskins, op.cit.supra note 5, at 17-19; Mosse, Puritanism and Reason of state in Old and New England, 9 William and Mary ~ (3rd ser.) 73 (1952).

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to the divine purpose of their Bible Commonwealth. 14 Fortunately for the history of individual liberties in America, the old opposition to state action did not disappear in Massachusetts Bay.

As the broad powers of the

magistracy came under increasing attack, the non-ruling freeholders asserted their demands for a definite statement of the laws by which they were to be governed.

The codification movement

was a reaction to the broad discretion exercised by the magistrates in the absence of enacted laws. 15 Indicative of the success of the codification is the comment of Haskins that there were in the Massachusetts Code of 1648 a "remarkable array of individual interests guaranteed by law in a social system primarily committed to the securing of broad social and public interests.,,16

Mosse indicates that this particu-

lar development was limited to New England, for in old England the Puritan party lead the nation toward a strong public 14.

Mosse., supra note 13, at 70, 72. Properly speaking lIreason of state" is the doctrine that a matter can be withdrawn from the competence of the common law courts by the irrebuttable assertion by the Crown that the litigation of the matter would disrupt the external relations of the state. It existed in England until the Glorious Revolution of 1688, Holdsworth, The History of Acts of state in English Law, 31 Colum. L. Rev. 1314 (1931).

15.

Note, The Rule of Law in Colonial Massachusetts, 108 U"":Pa.L.Rev. 1017-1018 (1960). Haskins, op.cit.supra note 5, at 203, 204; Morris, supra note 5, at 28, drawing analogy to patrician-plebian struggle in Rome and The Twelve Tables.

16.

Haskins, op.cit.supra note 5, at 227.

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policy with "reason of state» removed from the realm of royal prerogative, but vested in a nominal King who would be sovereign in his Parliament.

On the other hand, New England

moved toward individual rights protected by written codes and constitutions. 17 II. A.

SELF-INCRIMINATION IN COLONIAL AMERICA Extensive use of the compurgatory oath in the

Courts of Star Chamber and High Commission, caused strong opposition to its introduction into Massachusetts courts run by the victims of the English procedure. 18 In Virginia, on the other hand, it is claimed that the oath was used as late as 1640, and that its decline after that date was due to the Cromwellian refugees to the Old Dominion. 19

The

situation in New York is not quite clear, for although it is said that the purging oath was used in criminal procedure, there was an unusual concession that seventeenth century New Yorkers need not take the Oath of Supremacy. As far as New York was concerned, the English do not seem 17.

Mosse, supra note 13, at 78,80.

18.

Haskins, op.cit.supra note 5, at 200.

19.

Pittman, The Colonial and Constitutional Privilege Self-Incrimination in America, 21 Va.L.Rev. 7 0-781 (1935).

A~ainst

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to have been unduly concerned with dissenting religious sects. 20 In certain circumstances the prejudice against the purging oath gave way to the demands of necessity. Thus the oath was used for the purpose of limiting the sale of liquor to the Indians,2l and to discourage slave 22 insurrections. The preliminary examination before a magistrate or justice of the peace seems to have been performed without the suspect taking an oath.

This was the rule at English

common law 23 and from the little available evidence would seem to be the general colonial practice. 24 Some legal historians contend that this right to answer without taking an oath is an illusory dispensation, for there was considerable opportunity for the committing judge to overwhelm the suspect with questioning and secure a confession. 25 20.

Goebel & Naughton, supra note 10, at 659; 1 Hamlin & Baker, eds., Supreme Court of Judicature of the Province of New York 1691-1704, 248 (1959).

21.

Smith, supra note 2, at 122,235 (western Mass.); Pittman, supra note 19, at 776,777; Goebel & Naughton, supra note 10, at 657 (New York).

22.

Goebel & Naughton, id., at 658 (N.Y., 1712); noting that the oath was used until the American Revolution in these and in other cases.

23.

Haskins, op.cit.supra note 5, at 200.

24.

For N.Y. see 1 Hamlin & Baker, supra note 20, at 246,257 where no mention is made of testimony under oath in the Supreme Court; for Virginia see Scott, supra note 8, at 55, 56,60.

25.

Goebel & Naughton, supra note 10, at 656,659, asserting, "We think that the existence before the Revolution of a privilege of defendants is an illusion." Cf. Smith, supra note 2, at 235; contra. Levy & Leder, Exotic Fruit: The Ri ht A ainst Self-Incrimination in Colonial New York, 20 William and Mary Q 3rd ser. 1-23 19 3 . 11

Of course, considerable research in the manuscript records of the courts, and the papers of judges and lawyers, is necessary before we can be certain of the nature of the committing magistrate's examination. 26 Another species of self-incrimination strongly opposed by the puritans was the use of torture for the purpose of securing a confession.

In Massachusetts Bay, after

1641, torture could be used only subsequent to conviction and only for the purpose of determining the _identity of accomplices. 27

By 1677 the right against self-incrimination

at trial was recognized in Virginia, and Morgan argues that it probably applied in New York despite Goebel's and Naughton's negative findings. 28 Precedents concerning the self-incrimination privilege of witnesses, as distinguished from accused parties, are even more limited in number.

All that can

be safely said is that there is some basis for holding that such a witness privilege existed in Maryland, but not

26.

That sparsity of colonial precedents justifies only tentative conclusions, see Morgan, The Privilege Against Self-Incrimination, 34 Minn. ~ Rev~ (1949).

27.

Pittman, supra note 19, at 776-779j Haskins, op. cit. supra note 5, at 202.

28.

Ibid, at 780j Morgan, supra note 26, at 23.

12

in NevI York,29 and that a Massachusetts law of 1692, enacted after the revocation of the Massachusetts Charter

J

extended

the privilege against self-incrimination to witnesses.30 Equally puzzling is the question whether peine forte et dure, or pressing, was used in colonial criminal proceedings.

The purpose of this torture was to compel the

accused to plead to the charge in a criminal case, and then to put himself lion the country".

If he yielded to the com-

pulsion of pressing, and thereby accepted a jury trial, not only was he put to death upon conviction, but his descendants were deprived of their inheritance because of the attaint which "corrupted his blood".

Morgan cites a witch-

craft case in Massachusetts where the accused was pressed to death, and also suggests that Goebel and Naughton are not justified in claiming that Ilpressing" was not used in York.3l

New

Scott asserts that "pressing'! was never used in

Virginiaj his forthright statement is undermined by his own admission that he never encountered a case in which an accused failed to plead to the charge. 32

One is compelled

29.

Pittman,

supra note 19, at 782.

30.

Goebel & Naughton, supra note 10, at 659 (they conclude no privilege existed, and cite a 1703 prosecution of a witness.)

31.

Supra note 26, at 20, referring to Goebel & Naughton, supra note 10, at 582.

32.

Scott, supra note 8, at 81.

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to cast a skeptical eye upon this universal desire of accused criminals to impoverish their offspringj perhaps the possibility of being "pressed" to death had something to do with their alacrity.

We do know that Alexander McDougall, the

"Wilkes of North America", was threatened with pressing when he refused to plead to a charge of seditious libel of the New York Assembly; the threat was not carried out. 33

In the

case of McDougall, the authorities may well have appreciated the inflammanxy effect that such a procedure would havej we thus cannot base any clear-cut decision upon the McDougall threat.

It appears, from the very small amount of evidence

available, that "pressing" was rare in colonial criminal proceedings. 34

On the other hand, it is not clear that the

possibility of such treatment did not stimulate a plea from the accused, no matter how remote that horrible possibility might have been.

None of the writers mentioned, and no other

33.

Levy, Legacy of Suppression: Freedom of Speech and press in Early American History 83 (1960).

34.

The witchcraft case must of course be considered unusual since the hysteria of the witchcraft scare obliterated respect for normal judicial procedure. Likewise abnormal treatment of Negroes, whether slave or free, cannot be accepted as typical procedures. Both cases arose from unreasoning fear, and if accepted as the norm of criminal justice, would paint a dreary picture. For suggestion "pressing" contrary to puritan principles, see Wolford, supra note 6, at 446.

14

writers tQ my knowledge, have found a colonial practice sanctioning the crurt's entering a plea of "not guilty" on behalf of the accused. B.

i

PRIVILEGED COMMUNICATIONS The foregoing privileges against self-incrimination

are essentially procedural protections for the individual. Evidence of these protections should be available in the manuscript records left by the colonial courts.

A question

of greater difficulty, as far as the research material is concerned, is the rules of evidence which might have protected privileged communications between husband and wife and attorney and client.

I have found no secondary material

concerning the attorney-client privilege in colonial America, but suspect that such a principle of law was followed.

Morris

notes a 1700 decision in Pennsylvania which recognized the privileged nature of communications between husband and wife. He also notes a 1660 case in New York where an accused attempted, unsuccessfully, to avail himself of the privilege by marrying a lady who saw him steal a hog. 35

Scott states

that a husband-wife privilege did exist in Virginia, and

35.

Morris, Studies in the History of American Law 197-199 (1930).

15

cites as his authority a manual for Virginia justices of the peace published in 1774.3 6

I am reasonably certain that some

attention to this area of the law will yield a sufficient number of colonial precedents upon which to base some conclusions concerning husband-wife and attorney-client communications. C.

SEARCH WARRANTS The issuance and procedural protection afforded to

the individual by search warrants, has not drawn close scholarly attention.

Smith notes a 1652 Massachusetts

statute, authorizing magistrates to issue search warrants in cases of burglary and theft.37

The use of search warrants

in New York seems to have been the rule, with exceptions being made by court order. 38

There are four instances concerning

the issuance of search warrants which have come to the attention of legal historians.39

A well executed monograph on

36.

Scott, Criminal Law in Colonial Virginia 94 (1930).

37.

Smith, ed., Colonial Justice in Western Massachusetts (1639-1702): The pynchon Court Record 142 (1961).

38.

3 Hamlin & Baker, supra note 20, at 183, note 2.

39.

One warrant noted at ibid, 65j three noted at Goebel

& Naughton, Law Enforcement in Colonial New York 1664-1776: (1944).

A Study in Criminal Procedure 394, 428

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this important topic is sorely lacking.

The court procedures

involved in issuing search warrants insure the survival of a considerable amount of information.

The interest of lawyers

in the law of searches and seizures immediately preceding the American Revolution draws attention to the possibility that in their writings and commonplace books there may survive a wealth of materials concerning search warrants.

Of all the

topics discussed in this paper, a study of the colonial search warrant and the colonial habeas corpus, discussed below, are the two subjecmmost likely to yield satisfying results. D.

HABEAS CORPUS IN COLONIAL AMERICA The great writ of habeas corpus ad subjudiciendum

is enshrined in the hearts of English-speaking people and duly revered as a strong weapon against executive tyranny. Its medieval original distinguishes it from the other pro-

.~

cedural protections under consideration, most of which seem

. ii

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to be of sixteenth and seventeenth century derivation.

f

Un-

fortunately the use of habeas corpus in the American colonies has not received the attention it deserves, neither has the little attention scholars give to the topic any semblance of objectivity. Because of its medieval origin habeas corpus would seem to have applied, in some form, to the American colonies.

17

.

. . .,

There is clear evidence of its colonial use, both as an instrument of appellate review and also as a technique for inquiring into the validity of imprisonments. 40

I have some

doubts concerning the assertion that habeas corpus was freely available in colonial America,41 for such solicitude for individual rights seems incompatible in a society which saw no wrong in lengthy imprisonment for debt.

On the other

hand I cannot accept Goebel's and Naughton's pessimism when they affirm that historians searching for a "rudimentary bill of rights" will nforage fruitlessly" in the bail and habeas corpus procedures of New York.42

From the incomplete evidence

gathered by scholars and summarized in footnote 40, it seems certain that by the 1690'S there was a regular habeas corpus

40.

For a useful discussion of the origin of the writ, see Walker, The Constitutional and Legal Development of Habeas Corpus as the writ of Liberty (1960). In Virginia the writ was unsuccessfully requested in 1682, but the authors are in disagreement whether it was in use before 1711 when it was extended to the colony by royal proclamation, Scott, supra note 37, at 58, 59; Chumbley, Colonial Justice in Virginia 72 (1938). For Maryland see 1 Harris & McHenry Rep. 19 (issue of writ in 1692). Concerning New York see 1 Hamlin & Baker, Supreme Court of Judicature of the Province of New York 1691-1704 390, 394 (1699), also Goebel & Naughton, supra note 40, at 504, 505.

41.

Glass, Historical Aspects of Habeas Corpus, 9 st. John's L. Rev.63, 64 (1934).

42.

Goebel & Naughton, supra note 40, at 506.

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proceeding available in all of the American colonies.

The

nature of that proceeding, and the conditions under which habeas corpus relief would be granted, are still to be determined. In approaching the answer to whether habeas corpus, as known in England, existed in the colonies, one meets a rather intricate question.

Did the Habeas Corpus Act of

1679 apply to English possessions outside the kingdom proper? Historians claim that it did not apply, thereby echoing the

1695 decision of the royal authorities. 43 Yet the colonists acted as if the Act did apply to the colonies and the Massachusetts Assembly passed an act specifically adopting its provisions. 44

What is even more confusing is that the English

statute, in clause twelve, specifically refers to the "Dominions ll beyond the seas. 45

Confusion in the seventeenth century

concerning this matter insures that the historian can never find the key to resolving the question.

But by carefully

describing the habeas corpus practices of the colonial courts

43.

Ibid, at 502, 503; 1 Hamlin & Baker, supra note 41, at

58'9-"392.

44.

1 Hamlin & Baker, id.

45.

31 Car. 2, c. 2 (1679); Chafee, Colonial Courts and the Common Law, 68 Mass. Hl storical Socly Proceedings (194441T 134 (1952), claims the Act does not say it applies "fOthe colonies.

J

at 390.

19

1, )

we can gain an insight into the actual operation of the habeas corpus procedure, even though it may be impossible to resolve the questions involving the constitution of the old British Empire. As in the case of search warrants, there is evidence concerning habeas corpus writs in the manuscript records of American colonial courts.

For example, the writ

was used to free Alexander McDougall from imprisonment for seditious libel in 1771,46 it was suspended by a Pennsylvania Assembly intent upon punishing a judge for contempt in the

1760 l s 47 and it was used against a New York governor who imprisoned two non-conforming ministers for speaking without a license. 48 probably

~eal

Research in the appropriate manuscripts will many more instances concerning the issuance

or denial of habeas corpus in the colonial period.

The need

for such a study is apparent, not only because of its bearing upon individual liberties, but also as an indication of the strength of the royal prerogative in America after the Gl orious Revolution of 1688.

I have long suspected that

after 1688 the royal prerogative in the colonies was

46.

Morris, Freedom of Expression: Its Past and Its FUture, 31 New York History 125 (1950)j Levy, supra note 33, at 85.

47.

Levy, id., at 55, 56, 59 .

48.

Glass, supra note 41, at 64.

20

.

II

considerably

weakened~

English constitutional theory to the

contrary notwithstanding.

Will habeas corpus, apparently on

the upsurge in the 1690's, provide some answer to this question? III.

The very bulk of material on seditious libel in colonial America would lead one to believe that the subject has been more than adequately covered.

Dean Leonard W.

Levy's study is a significant contribution to our knowledge of the subject, yet is yields a "reluctantly new tion of the facts.

l '

interpreta-

A strong supporter of the broadest pos-

sible construction of the Bill of Rights, Levy has at times been led astray by his own liberal tendencies which cause him to read back into our colonial history some legal anachronisms.

Nevertheless in writing Legacy of Suppression, Levy

·was so impressed by the evidence that he wrote, The persistent image of colonial America as a society in which freedom of expression was cherished is an halluGination of sentiment that ignores history.49 He goes on to assert that it is his personal feeling that, were a popular ballot held concerning truth as a defense to libel and jury trial of the issue of seditious

49.

intent~

and

Levy~ Legacy of Suppression: Freedom of Speech and press in Early American History 18 (1960).

21

i:

such a ballot were held after the Zenger case and before the adoption of the First Amendment, the liberal trend in American colonial thought would be discernible. 50

In this assertion I

believe Levy to be completely wrong, particularly since he admits he has no evidence to support his suspicion. After the rather hazy outline sketched in part II concerning individual rights in the colonial period, one might tentatively conclude that Levy's attitude toward freedom of expression, quoted above, is the beginning of a new interpretation of civil liberties in colonial America.

Despite

the trend in historical writings toward the finding of continuity in history, Levy's evidence and his attitude toward civil liberties in the colonial period indicate that the socalled "Revolutionary Generation" radically altered the concepts of individual liberties.

The relatively young leaders

of the Revolution were in the midst of the first generation to come to maturity fully nurtured with the ideals of the Enlightenment.

Prior to that time the divergence of American

law from English precedents was due to the pervasive effect of Puritanism which was essentially a collectivist philosophy, and hence not likely to make any extensive innovation in the

50.

Ibid, at ix. The very thought of a popular election, such as that imagined by Levy, would have been inconceivable in colonial America.

22

relationship between the individual and the state.

While

Levy's attitude toward civil liberties in colonial America is reluctantly arrived at, one wonders why this is the case and "Thy Levy searches for continuity when there is r .evolution. No interpretation should be reluctant when it lends truth and consistency to a hitherto mythical tale bent upon glorifying American individualism at the expense of historical accuracy. The rise of printing in colonial America roughly coincided with the decline of state licensing as a means of controlling the press in England. 5l

For this reason the

earliest cases noted in America are those of oral defamation. In 1624 one Richard Barnes was tried for slandering the Governor of Virginia, and after being mutilated, was banished. 52

51.

Nelson, Seditious Libel in Colonial America, 3 Am. J. Legal Blst. 162 (1959). State licensing in England was suspended from 1679 to 1685 and finally abandoned in 1695. The 1679 suppression of licensing, coinciding in date with the habeas corpus 1e,gislation, is perhaps evidence of Puritan resurgence in the Bouse of Commons. Printing was forbidden in Virginia until 1693; Mass. Bay apPointed licensed printers as early as 1662. Licensing lasted in Penna. until 1722, and in Mass. until 1721. During the 1750's N.Y. and Mass. attempted, unsuccessfully, to license newspapers through taxation. Ibid, 161, l62j Morris, op. cit. supra note 46, at 117j Long, The Freedom of the Press, 5 Va. L. Rev. 233 (1918), ~ 237j Levy, supra note 49, at 36, 49.

52.

Chumbley, supra note 40, at 18.

23

In 1630 a man was found guilty of "scandalous speeches!! against the government of Massachusetts Bay, was whipped, mutilated and banished.53

An interesting New York case of

1702 is recorded, in which a citizen expressed his opinion of the king in the following doggerel, liKing William I s nose is wax and

!Jig

is no longer King as we please.

!! 54

Actions for blasphemous libel have been noted in New York as late as 1752.55 Prosecutions of newspaper editors and others for seditious libel had been a weapon of press control throughout the seventeenth century, and puritans had some experience with this criminal proceeding quring the time of Elizabeth I. Nevertheless the weapon was reinstituted by a Puritan Parliament in 1643.

Presumably it was too valuable an instrument of

state to be ca$ aside for the sake of consistencYj as Long notes,

11

•

it makes a difference ~'lhose ox is gored.!! 56

Once the licensing of printers had been abandoned, the use of seditious libel increased, aided no doubt by the fact that after 1720 utterances previously considered

53.

Haskins, La VI and Authority in Massachusetts 28 (1960).

54.

1 Hamlin & Baker, supra note 40, at 98.

55.

Nelson, supra note 51, at 163.

56.

Long, supra note 51, at 232.

24

treasonable were deemed to be merely seditious libels.57

The

growing power of the colonial assemblies resulted in an increasing number of prosecutions before the Assembly for seditious libels considered an affront to the dignity of the House. 58

It is possible to outline the rise and fall of

seditious libel in colonial courts of common law as follows: 1607-c.1700 Limited to oral defamationj occasionally used for regulation of unlicensed printing. c.1700-1740 Prosecutions for seditious libel in courts of common law dominate regulatory scheme. 1740-1776 Seditious libel at common law yields dominance to the growing power of colonial assembl.ies in speech and press regulation. The growing reluctance of colonial juries to convict for seditious libel is said to have caused the shift in emphasis at the middle of the eighteenth century.59

Of course the

Zenger case in New York restated the principles, rejected in England, that truth is a defense to lib'e l, and that the jury

57 . Levy, supra note 49, at 11. 58.

Ibid, at vii, 20-24j Nelson, supra note 51, at 163.

59.

While William Bradford was convicted by a Pennsylvania jury in 1692, a jury of the same Province refused to convict Thomas Maule in 1696j in New York juries refused to convict Nicholas Bayard (1702), Rev. Francis Makemie (1706) and John P. Zenger (1735), Levy, supra note 49, at 33, 48, 67; Long, supra note 51, at 239.

25

should have the right to determine whether the utterance was in fact seditious. 60

The concepts were not new in the

American colonies, having been raised as a defense by William Bradford in a 1692 Pennsylvania , trial; yet the acquittal in the Zenger case may well have resulted in it being the last prosecution in colonial common law courts on a charge of seditious libel. 6l

After 1735 the scene of l~qel prosecu-

tions began to shift from the courtroom

to the assembly

chamber. Freedom of expression in the colonial period was somewhat shielded by the reluctance of juries to convict for seditious libel.

However the overwhelming powers of the

Assembly were sufficient to stifle an unruly newspaper.

To

this extent the evidence supports the contention of Chafee that in matters of free speech American colonial practice followed that of England. 62

However once the colonial

60.

The fIrst legIslatIve recognition of Zenger's truth defense was in the Sedition Act of 1798, Morris, op. cit. supra note 48, at 126. --

61.

Levy, sutra note 49, at 27, 29, indicates Bradford's repudiat on of Zenger in 1735, at which time Bradford was offical printer in New York. Determinative effect of the Zenger case is noted by Nelson, supra note 51, at 170, and Long, supra note 51, at 240. English case denying trutFi"'"Oefense is Franklin's Case, 17 HO\'fell' s State Trials 1243 (1731); MorrIs, op. cIt. supra note 46, at 118.

62.

Chafee, Freedom of Speech 23 (1920).

Assemblies became responsive to radical public opinion, as in pre-Revolutionary Massachusetts, it was no longer possible for the Governor to silence the opposition press.

The very

fact that the British ministry found it necessary to subsidize

• I i

:", J

{1

its own newspapers in the colonies 63 indicates that reliance upon the respective Assemblies was no longer desirable.

By

cons~dered

i

the time of Lexington and Concord, the British

ministry and the patriot editors were engaged in a press war, a conflict conducted without common law court or colonial assembly as referee. IV .

The foregoing survey of secondary materials bearing upon the right of privacy in colonial America indicates that much remains to be done before any conclusions can be drawn concerning the rights of an individual in the American colo-

\

II

Ii

iq lj I

1

nies.

The predominance of law review articles is evidence of

the need for an historical approach to the topic.

By this I

do not by any means intend to imply that the historian is better equipped for the task than the lawyer, for this is rarely so in regard to the technical aspects of law and court

! I

63.

Dickerson, British Control of American Newspapers on the Eve of the Revolution, 24 New England Q., 453-468 (1951) .

I !

27

procedure.

What I do mean to stress is that the historian

is accustomed to deal with legal concepts of a past century in the light of the social and cultural atmosphere of that century.

Such a control is essential to an understanding of

the right of privacy in colonial America. Economy of effort can best be achieved by beginning to study the right of privacy as reflected in search warrant and habeas corpus procedure.

It would then be possible to

move into a consideration of the questions of self-incrimination and privileged communications, and finally into the field of seditious libel, which by that time may be seen to

requ~re "I

additional attention. In embarking upon such a study any scholar will be

II

appalled by the mass of manuscripts to be examined, but only in the dustYJ crumbling and generally neglected colonial court records will he find the answers to the questions posed above.

Those records hold the answer to a vital ques-

tion, "Just how much are we indebted to the Revolutionary leaders for the existence of the present day right of pri-

,i

vacy? "

28 L

I II

BIBLIOGRAPHY Baker, Charles E., see Hamlin, Paul M., infra. Chafee, Zechariah, "Colonial Courts and the Common Lavl", Massachusetts Historical Society Proceedings 1944-47, LXVIII, 132-159 (1952) , Freedom of Speech (New York:

----~B~r~a-c~e-n&~C~o-.-,~1920)

Harcourt,

Chumbley, George Lewis, Colonial Justice in Virginia (Richmond: The Dietz Press, 1938) Clover, Ralph H., liThe Rule of Law in Colonial Massachusetts", University of Pennsylvania Law Review, CVIII, 1001-1036 (19 60) Dickerson, Oliver M., "British Control of American Newspapers on the Eve of the American Revolution tl , New England Quarterly, XXIV, 453-468 (1951) Ewing, Samuel E., see Haskins, George Lee, infra. Glass, Albert S., tlHistorical Aspects of Habeas Corpus ll , st. John's Law Revievv, IX, 55-70 (1934) Goebel, Julius, and T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776) (New York: The Commonwealth FUnd, 1944) , ;

Hamlin, Paul M., and Charles E. Baker, eds., Supreme Court of Judicature of the Province of New York 1691-1704, 3 vols. (New York: The New York Historical Society, 1959) Haskins, George Lee, Law and Authority in Early Massachusetts (New York: The MacMillan Co., 1960) , tiThe Legal Heritage of the Plymouth ,---;u'T:n':""iT"v--e::"'r=s.....i t Y 0 f Pe nn s yl va n i a Law Rev i ew', CX, 847-859 (19 6 2)

----;::C;-:o-.;l~o:-:-n:-:-y-:-J'ry-'

, and Samuel E. Ewing, "The Spread of in the Seve n tee nth Ce n t ury", Un i ve r s i ty of Pennsylvania Law Review, CVI, 413-418 (1958)

-----;-M;;--a-s-s~a-c.,.h-u-s-e:-:trtl""""s-:--La:;:--:-w-

Holdsworth, William S., "The History of Acts of State in English Law", Columbia Law Review, XXXI, 1313-1331 (1931)

29

'.

~

,

Leder, Lawrence H., see Levy, Leonard W., infra. Levy, Leonard W., and Lawrence H. Leder, IIExotic Fruit: The Right Against Self-Incrimination in Colonial New York", William and I>1ary Quarterly, 3rd Series, XX, 1-21 (1963) , Legacy of Suppression: Freedom of Early American History (Cambridge, The Belknap Press, 1960)

----~S~p-e-e-c~hr--a-n~d~P~r-e-s-s--i~n

Mass.:

Long, Joseph R., !IThe Freedom of the Press", Virginia Law' Review, V, 223-246 (191 8 ) Matthews, Nathan, !!The Results of the Prejudice Against Lawyers in Massachusetts in the Seventeenth Century!!, Massachusetts Law' Quarterly, XIII, 73-94 (1927) Morgan, E/ ? ? / M., liThe Privilege Against Self~Incrimlna­ tion", Minnesota Law Review, XXXIV, 1-45 (1949) Morris, Richard B., JlFreedom of Expression: Its Past and Its Future!!, Nev.f York History, XXXI, 115-135 (1950) , Studies in the History of American University Press, 1930)

----~L-a-w~(~N~e-w~Y~o-r~k~:--~C-olumbia

Mosse) George L., JlPuritanism and Reason of State in Old and NevI/' England II, vJilliam and Mary Quarterly, 3rd Series, IX, 67-80 (1952) Naughton, T. Raymond, see Goebel, Julius, supra. Nelson, Harold L., "Seditious Libel in Colonial America!!, American Journal of Legal History, III, 160-172 (1959) Pittman, R. Ca·rter, liThe Colonial and Constitutional Privilege Against Self-Incrimination in America", Virginia Law Review, XXI, 763-789 (1935) Schuyler, Robert Livingston, Frederick William Maitland, Historian (Berkeley, Calif.: University of California Press, 1960) Scott, Arthur P., Criminal Law in Colonial Virginia (Chicago: University of Chicago Press, 1930) Justice

30

Walker, Robert So, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty, Oklahoma State University publications, 'LVII, No 9 (Stillwater: Oklahoma State University, 1960) 0

Wolford Thorp L "The LaY-IS and Liberties of 1648 11 , Boston University Law Review, XXVIII, 426-463 (1948) J

0

0'

Yankwich, Leon R., "The Background of the American Bill of Rights", Georgetown Law Journal, XXXVII, 1-28 (1948)

31