Cantor - Privacy In The Western Civilization

/PRIVACY IN WESTERN CIVILIZATIO~ by

NORMAN F. CANTOR, COLUMBIA UNIVERSITY with the assIstance of Arthur L. Schatten and Patricia A. Lee

A REPORT SUBMITTED TO THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK) S~acial Committee on Science and Law

Confidential -- For Private Circulation Only October 11, 1963

Contents

ForeNard . . . . . .

i

I.

Privacy and Liberty.

1

II.

Privacy in the Common LaN. .

16

III. The Victorian Concept of Privacy .

. 73

IV.

.104

Conclusion. , . . . . , . . . .

Fore \
The report begins \'1i th a study of the origins of the concept of the liberty and dignity of the individual upon Nhich the right of privacy must be founded.

It is shO\'ffi that the most

significant origins of modern concepts of liberty lie in English common laN and certain aspects of Christian thought.

The second

part" of the report is a careful analysis of the rights of privacy in Anglo-American common la,.,. from the sixteenth through the nineteenth centuries, with particular reference to search and seizure, privilege against self-incrimination, and various forms of defamation.

The third part of the report shoNS hm'l

the concept of privacy developed in Victorian England, emphasizing the Victorian enthusiasm for rights of privacy and the conflicts between the claims for privacy and the pressures of industrialized society and mass culture.

Some brief and ten-

tative conclusions are attempted in the final part of the report.

i

I.

PRIVACY AND LIBERTY The history of the right of privacy is part of the

problem of the history of civil liberties generally, N'hich in turn is part of the history of liberty.

It is impossible to

separate the question of the right of privacy from the broader issue of the relationship between the dignity of the individual person and the needs of society.

This fact \'Jas clearly empha-

sized by Justice Cardozo in People v. Defore in 1926. The history of liberty is fundamental to Western Civilization and there is no more difficult historical problem and one which has been so inadequately studied,

In part, this difficulty and

this inadequacy is due to the fact, as Lord Acton said about a century ago, that until the American Revolution liThe history of freedom was the history of the thing that \'las not II ,

By this

paradox Acton meant that until the middle of the eighteenth century there was lacking a clear consciousness of the freedom of the individual in Western Civilization and the historian must, to a very considerable degree, concern himself with implications and tendencies rather than clearly realized doctrines,

Hm<Jever J a deeper kno\dedge of the thought-t'.JOrld of

anCient, medieval, and early modern society than was available to Acton enables us to perceive more clearly the roots of liberty, and with it the origins of privacy, than was possible a century ago,

The vicissitudes of liberty in the twentieth cen-

tury also has deepened our experience of freedom and intensified our perceptions of the tensions and ambiguities involved

in individual liberty, thereby enabling us to project our o\m experience into the past and understand the problems of liberty in Western Civilization in a more profound manner. theles8~

Leonard Krieger, liriting in

1962~

Never-

rightly points out

the defects in the studies on the history of freedom toJhich have so far been published.

They fail to relate ideas to practice;

they have not succeeded in placing the key concepts Nithin the social framel'lork.

"What

1'le

do not yet have . . . is the con-

nection bet\'leen the recently emphasized variety in our concepts of freedom and the variety of our historical experience." The right of privacy is founded on the concept of the dignity and value of the individual

personality~

and the

rights of individual conscience against the dictates of the state.

The Athenians were the first to encounter this problem

and to understand its implications to any important degree. The Greeks believed that the good life \'1as impossible \'li thout the state, that man is a political being.

Yet in Socrates'

Apology before the Athenian court \oJ'e have an assertion of the superior claims of conscience against the dictates of the state, although Socrates recognized the right of the court to impose and execute the death sentence upon him.

He places the

demands of conscience that he teach the truth to the young Athenians against the dictates of the state that he cease his subversive teaching on pain of death.

The issue is left un-

resolved because Socrates is compelled to obey both his "inner voice" and the state.

The burden of the argument here is not

2

on the side of a right of privacy, for Socrates admits the sanctions of state power to silence his teaching by executing him, even though a great deal of his teaching Nas done in private houses through discussion with a group of disciples. The Stoic view of man, which is based upon the Socratic philosophy, and t'lhich \'las widely accepted among the ruling eli te of the Roman 'e mpire in the first three centuries A.D., reveals the same ambiguity.

In the Stoic

\'lorld-vie\~

there is a strong

sense of the dignity of the individual human mind, which reflects some universal divine force, but on the other hand there is acceptance of the supreme authority of the Roman imperium to

impose its will upon all subjects.

The Roman

senatorial aristocracy asserted the values of free discussion (among themselves) and they had a keen appreciation of the values of home life free from arbitrary interference by despotic emperors, but their solution to authoritarian onslaught on the individual and his family appears to be ritual suicide J or reunion of the individual mind with the intellect imminent in the universe.

In the fourth century empire and its Byzan-

tine successor there appears to be no recognition by the state of the dignity of the individual at all:

an authoritarian and

arbitrary despotism J using a vast secret police and attendant armies of informers, destroys by force majeure any opposition it suspects J and

this despotism is tempered only by assassina-

tion of emperors, rather than by any concept of liberty and

3

privacy. Can we find any roots of a concept of privacy in the Hebrew Bible?

The results of a search for Hebraic origins of

a right of privacy would be meagre.

The rabbinical code con-

tains strong injunctions against interfering with the secrecy of the sexual act, and its social vision is conditioned by the assumption that the family is the most effective and valuable social unit, but in the rabbinical view there is no consciousness of a right of liberty and privacy for any kind of noncomformity.

The Hebrew Prophets attacked the injustices

of kings, the theological l'leaknesses of pr1e sts, and the moral failings of Jewish societYJ and they appear as heroic figures; but it is impossible to extrapolate a sense of civil liberties from their \'lri tinge.

On the contrary, their frenzied convic-

tion that they are the spokesman of Divine Truth and their puritan denunciations of the mores of urban society tend to\'lards a totalitarian, or at least authoritarian, political doctrine and militate against a right of privacy. The Prophe tic tendency tm'lards a religious authoritarianism, by l
It may be possible

to fin<;l in the Gospels a radical doctrine of freedom, in which the relationship between the individual soul and God stands as the only important thing in the \'lorld, overriding the claims of any kind of social authority 4

and, as we shall see, this theory

of religious freedom was to have far-reaching effects after about 1100 A.D. -- but in the first Christian milleniurn it was an equally extreme doctrine of religious authoritarianism which Nas to prevail.

It Nas St. Paul who made the decisive choice

for the Catholic Church.

He attacked the rabbinical doctrine

of the authority of the La\'l and its agents, claiming that the Ne\'l Testament of Divine Love had abrogated the LaN and dispelled any need for it.

But at least after perceiving the social an-

archy and extreme libertarianism implicit in this pristine Christian teaching, he asserted that the liberty of a ChriStian man is to subject his Nill to Divine Will, as expounded by the Apostolic disciples of Christ.

Further tendencies to-

\'lards religious individualism in the early church (the Gnos tic controversy) led to the amplification of the Pauline teaching into the doctrine of the absolute power of the hierarchy over the Christian people, who were placed in the subordinate status of laity, and whose priesthood became potential only, but not actual.

With the acceptance of Christianity by the Roman em-

peror in the early fourth century, and \'lith the consequent alliance of church and empire, the church and particularly the bishop of Rome absorbed the autocratic traditions of imperial rule, and intensified both the doctrine and practices of hierarchical authority over the ordinary believer. The religious authoritarianism of Catholic Christianity~

so inimical to doctrines of liberty and privacy, was

most decisively expounded by great Church Fathers St. Ambrose

5

7

and St. Augustine in the late fourth and early fifth centuries. Their teachings reveal the strong influence of Pauline teachings fortified by a strong dose of Roman authoritarianism.

In

the great debate on freedom of religion c. 380 A.D. between St. Ambrose and Symmachus, the leader of the surviving pagan group among the Roman aristocracy, the issue of the right of exercise of religious opinion, and with it the whole issue of the privacy of the individual to think and worship as he deems right, l'laS broached.

Symmachus argues for the freedom of worship

for all citizens, including the pagan minority:

the pagan

rites harm no one, and in any case many roads lead to God. Ambrose replies that the Divine Truth in Christ Jesus must override any other claimsj there is only one way to God, and the Roman Empire, nON become a Christian state, must destroy other forms of worship and establish a homogeneous Christian society. The same principle is upheld by St. Augustine against the Christian Donatist heretics.

They have no right to break aNay from

the one true church and establish a separatist communion.

In

order to save the misguided separated brethren from the consequences of their own error, the Roman state must "compel them to come in" to the true communion by force if necessary. This doctrine \"las to have a profound affect on Catholic Christianity after the rise of popular heresy in the twelfth century; it is the teaching on \<1hich the papal Inquisition of the thirteenth century was to be based.

6

In only two biguity~

respects~

and even then with great am-

can medieval Catholic Christianity be said to have

contributed to the later doctrine of a right of privacy.

Cath-

olic Christianity taught that in the earthly body there Nas temporarily imprisoned the spiritual the Pure Spirit of God. the holiness of their

soul~

an element akin to

Those mortals who had demonstrated that

soul~

is~

those who were saints,

deserved to be treated Nith great respect by all other members of society, for they had established a close communion with God even in this life.

Conse quently those medieval people l\}ho

enjoyed some degree of privacy were eremitic saints who were allm'fed to Nithdrat'l from the Norld to commune Nith the Divine Spirit.

Similarly, cenobitic monks and nuns enjoyed privacy

from outside interference to NithdraN behind the Nalls of their convents to pursue spiritual exercises.

In the latter case,

however} the religious \vere subject to the constant supervision and absolute authority of the

abbot~

Nho kept very close

Natch on them, even when they were meditating in their cells. Generally speaking, the barbarity of medieval society} taken together lvith the authoritarianism of religious and political leaders} allOl'fed for no privacy.

Medieval people, for all but

the most lordly and Nealthy, did not even enjoy, or apparently desire, private sleeping-quarters, and children even in aristocratic households were allowed to Natch even the most intimate sexual acts.

Because of the underdeveloped nature of medieval

7

Europe) it Nas, of course, alh'ays possible to flee to the uninhabltated forests and wastelands to escape the restraints of royal and religious authorities but this peculiar situation has very little relevance to the general problem of a right of privacy.

In the respect accorded the private meditations

of the saint, there is, hO\'lever) the root of a problem Nhich Nas to become important after 1100, for in the t''.Jel fth century many such itinerant saints turned out to be heretical teachers, demanding for all their disciples the freedom of belief which had originally been accorded the holy preachers because of their saintliness, before their subversive tendencies became apparent. The second respect in \'.Jhich Catholic Christianity ultimately contributed to a right of privacy derives from the frequent jurisdictional conflicts betNeen royal and ecclesiastical authorities.

When such conflicts arose, the church leaders,

folloNing the precedent set dOl'ffi by st. Ambrose in his disputes with the Roman emperor Theodosius I,asserted that it Nas God, rather than man ,"ho must be obeyed.

Thereby, the church as-

serted the rights of conscience against the state.

But it was

a conscience tvhose decisions t'lere already decided by the Pope; the medieval church replaced the authoritarianism of the state ''Ii th the authoritarianism of the church, and there \'.Jas much more in this doctrine that

militated against liberty and

privacy than encouraged it.

This is 'made clear Nhen the church

8

Nas threatened by rise of religious individualism in the tNelfth century.

The solution finally adopted after 1200, Nhen moral

suasion through preaching had no effect in stemming the rising tide of heresy, \'las to set up the Inquisition and to summon the state to assist this ecclesiastical court by using sNord and fire against the heretics.

The Inquisition) like the ecclesi-

astical courts generally, made use of the judicial principles and methods of Roman la\'l, \.,rhose author1 tarian tendencies had had an enormous impac t on Continental law after the rene\\fed study of the Justinian Code began in the late eleventh century.

The

reliance upon informers and hysterical rumor, the use of torture to gain evidence, and the forcing of defendants to give testimony against themselves -- in these practices of the Inquisition Ne see no recognition of the right of privacy but rather its complete denial. It is not accidental that it is in medieval England whose peculiar legal system was not under Roman influence in fundamental matters, and l'lhere the Inquisition was never established, that tve can perceive the dim beginnings of the modern political-legal concepts of liberty and eventually an attendant right of privacy.

So said the great Victorian historians who

first systematically considered this question, and although we can fault their analysis of hON this came to be in some respects, and although we can dismiss any myth of the innate freedom-loving character of the English people as an explanation, nor agree Nith the Victorian as to the inevitability of

9

the rise of these concepts in England given the medieval institutional structure, no amount of scoffing by tNentiethcentury writers of limited vision can gainsay this fundamental fact. The idea of liberty in England, as it comes eventually and painfully to full consciousness in the seventeenth century, can be seen on close analysis to have two very different medieval sources:

one in the complex of political-legal

institutions and other in Christian doctrine. Magna Carta of 1215 presents clearly a theory of liberty, or rather "liberties" stemming from feudal and common la\'1.

Under the IIl aN of the land" every subject of the king

and every corporate community has certain liberties, certain rights and privileges, which are protected by the due process of the law.

There is nothing generic in this idea of liberty.

The liberties of individuals and communities consist of whatever specifically belongs to them.

Liberty is akin to, and in

fact is closely identified with, property.

Just as the property

of an individual and community can only be taken from him by the due process of lat'l (such as feudal forfeiture) and not by the arbitrary will of the king and his agents, so the liberties of subjects are their property Nhich they are entitled to enjoy by the law of the land.

And the liberties of individuals

and corporations Nhich are most prized are the immunities from the interference by royal officials -- a heterogeneous group of private jurisdictions. 10

It is this common law doc trine of liberty t'1hich is the most continuous fundamental idea of liberty in English history.

Liberty is the complex of privileges enjoyed, like

property, under the lal'l of the land.

But from the side of

Christian thought, there were strong influences attempting to make this concept more generic and at least to give it some moral content. In the thirteenth century Thomist doctrine of la\'J, these rather selfish private liberties are buttressed by moral I

!

l

and divine sections.

For if, as St. Thomas Aquinas teaches,

the IaN of the state is the reflection" of the la\'J of God, then the liberties provided by the laN of the land to various individuals and corporations are ultimately in accord \
Royal invasion of liberty and property in violation of

due process can be condemned not only in terms of the common law, but also as a negation of eternal IaN. In the heretical Christian thought of fourteenth and fifteenth century England there is a much more radical and individualistic idea of liberty l'Ihich \>1as to have a powerful influence on seventeenth century thought.

This heretical Chris-

tianity (Lollardy) was an offshoot of the teachings of the subverSive itinerant saints who had disturbed the authority and unity of the church on the Continent as early as 1100, but l'lhose disciples had been placed severely on the defensive in the thirteenth century by the Inquisition.

Whether called

Waldensians and Fraticelli on the Continent or Lollards in

11

England, the doctrine Nas the same:

if the saintly layman can

attain to direct experience of Divine Love, l'Iha t l'laS the need for the hierarchy?

The anS''ler l'las that direct religious ex-

perience lms a far better way to attain grace than sacramental intercession.., l'lhich was frequently condemned as a snare and a delusion.

In the pronouncements of the antisacerdotal heretics

1s found the first statement of a democratic principle of the value of the individual irrespective of political and social status.

It is true that a totalitarian doctrine of the absolute

rule of the brotherhood of saints can be adduced from this apocalyptic Christianity, but from it also comes the first democratl'c concept of liberty.

The heretics claim that the liberty

of a Christian man consists in the loving union of his soul \'lith Christ, without regard to l'Ioril.dly status and Nithout the intercession of hierarchical authority, and that a man so freed by religious experience could not be subjected to kings and bishops Nho had not given evidence of this liberating spirituality.., at last made explicit the radical social implications of the Gospels, and opened the ''lay for radical Puritan thought in the late sixteenth and seventeenth centuries. It remains to be shOlm hON the common la'\'l (or property) idea of liberty became involved \'lith the Thomist and radical Christian concept of liberty in the seventeenth century and hON the three strains eventually corne together in the teaching of John Locke. 12

In the mid-fifteenth sixteenth century} the M.P.

IS

century~

and again in the later

insist on the existence of the

liberties of the House of Commons (freedom from arrest, etc.); they claim certain corporate privileges under the law.

In

the 1620's Sir Edward Coke, the deposed chief justice of common pleas

become the leader of the House of Commons, made the

liberties of the House of Commons identical \'lith the liberties of Englishmen.

The doctrine Nas fully developed in the Peti-

tion of Right of 1628 of ''1hich Coke is the principal author, and similar manifestos of the period. tain liberties under the IaN:

All Englishmen have cer-

freedom from arbitrary arrest

hlithout due process, freedom from arbitrary taxation \'Jithout parliamentary approval, freedom from the arbitrary quartering of soldiers in homes, that is, violation of the privacy of homes without due

process~

and freedom from arbitrary changes

in religion without consent of parliament.

The theory is that

under the law of the land individual Englishmen enjoy a variety of privileges, but they all collectively enjoy the minimum of these stipulated liberties.

And the liberty of the House of

Commons from royal interference is the bulwark of these liberties. At the same time the Thomist doctrine that the law of the state is a reflection of divine IaN has become a common assumption in English political thought, so that the kingls alleged violation of due process can be condemned on moral and theological grounds, and to a right of revolution to maintain

13

the common law is added a moral duty to coerce the king to maintain the law. At the same time also the radical Puritan sects are propounding the doctrine of religious individualism derived from medieval Lollardy, and certain of them (the Levellers) have dra,m the political corollary:

if a man gives evidence

of election to the company of the saints, then assuredly he has a minimum of political as \oJell as civil rights. people ll should have the vote.

The "godly

Some of these radical thinkers,

moving a\'iay from theological presuppositions, lmrnedia tely secularized this doctrine of religious democracy into a pristine natural rights theory.

All men enter into society Nith

certain rights as part of their human nature and provided they are not Catholics or are not servants or on Poor Relief (and therefore cannot be trusted to come to independent decisions) they have not only civil rights (to enjoy due process) but also political rights (the franchise). The origins of Locke perceived.

IS

theory of liberty can now be

The identification of liberty and property (lithe

theory of possessive individualism" it has been aptly termed by the Marxist \ITiter C. B. Macpherson) is seen to derive from the fundamental common law view, clearly stated in Magna Charta, that liberty consists of specific privileges, enjoyed like and along ''lith spec ific property, under the due process of the IaN. The right of revolution against the sovereign power can be traced back to the Thomist teaching that the law of the state

14

reflects divine law, so that there is not only a moral right but a moral compulsion to preserve the law from arbitrary subversion.

And the natural rights theory, the claim that in

entering society

\'Ie

cannot surrender to the sovereign certain

rights to life,

liberty, and property belonging to us from

our human nature, is seen as a secularized version of the Lollard-radical Puritan doctrine of religious individualism, and its

corollary claim for the political rights of the godly

people. From these three very different sources, then, did the eighteenth century Englishmen draw their idea Of. liberty. And the ambiguity and tension which developed after 1750 between the claims of property on the one hand and the democratic ideology on the other need not surprise us, because these two doctrines, blended in Lockeia political philosophy, had very different origins, the former in common laN, the latter in radical Christianity.

As a consequence of the R=d scare

produced by the French Revolution, the English abandoned the natural rights theory at the end of the eighteenth century J \'Ii th Edmund Eurke leading the movement tONards basing liberty only on the original common law due process concept.

In the early ,

nineteenth century J hotoJever J a democratic theory was worked

,-

/

out in England on Benthamite utilitarian principles, and in

I -~

~ ...

"., 1)....... ....)

-'I

i

the socialist thought of modern England the natural rights

;?

.., ~

theory has been revived in an attenuated and disguised form, '

15

This delineation of the history of liberty provides the necessary context for nm'l specifically dealing

~<{ith

the

right of privacy, which is a segment of the Nhole theme of liberty in Western Civilization.

II.

PRIVACY IN THE COMMON LAW The formulation of concepts of the liberty and dig-

nity of the individual implied certain legal rights of privacy of the individual:

freedom from arbi tra'r y search and seizure

3

freedom from forced self-incrimination 3 and freedom from defarnation and slander.

The general recognition and legal estab-

lishment of these rights of privacy developed 3 however, in a SION, complex, and tortuous manner and in some respects, particularly in the area of defamation 3 were never established in the common law Nith perfect clarity.

* A.

*

*

Search and Seizure

The rights to security in one's home or place of business from unconscionable , interference by individuals or the state is not absolute.

While throughout the

frame~<{ork

of

the Anglo-American system of jurisprudence such rights are deemed important and to be protected J l there is a countervailing 1.

Constitution of the United States of America, Amendment IV. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Narrants shall issue, but upon probable cause) supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

16

social policy -- the needs of security of the government and police protection of society.

The basic Neapon of the counter-

vailing social policy is termed search and seizure by use of Narrant. 2 The principle is stated in Wolfe v. Colorado, 338 U.S. 25

(1949) by Frankfurter, J .

The security of one's privacy against arbitrary intrusion by the police -- Nhich is at the core of the Fourth Amendment -- is baSic to a free society. It is therefore implicit in "the concept of ordered liberty" and as such enforceable against the States through the Due Process Clause. The knock at the door, Nhether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent \'/i th the conception of human rights enshrined in the history and the basic constitutional documents of Englishspeaking peoples. With the basis of reference for the modern theory on private and public limitations, this section will consider the development of the procedural rules of Search and Seizure as folloNS:

I.

ORIGINS OF THE RULES

II.

THE GENERAL WARRANT

III.

CENSORSHIP AND TREASON

IV.

THE COLONIES

V.

THE FOURTH AMENDMENT 1.

It is by no means clear \'Jha t the source of the maxim, "a man's house is his castle" is derived from. While this seems an obvious policy basis, it is by no means the only one. The development of search and seizure \. . ill show that religion and social mores played no small part.

17

The peculiar immunity that the law has thrown around the dwelling place of man., pithily expressed in the maxim, lIa manls house is his castle tl was not an invention of English jurisprudence. Even in ancient times there were evidences of that concept in custom and lali, partly as a result of the natural desire for privacy, partly as an outgrowth, in all probability., of the emphasis placed by the ancients upon the home as a place of hospitality, shelter and protection.3 It was expressed by Coke 4 and he felt it derived from the Latin:

net domus sua cuique tutissimum refugium. 115

While

Roman LaN is generally regarded as the precedent for the English maxim., it is clear that the ancients also held similar values.

Both the Harmrurabic and Mosaic codes contained provi-

sions on the SUbject. 6

Article 28 of the Code of Hammurabic 7

declared:

"If a man makes a breach into a house., one shall kill him in front of the breach and bury him in it." 8 The Old Testament (and the later works of the Talmud and Hosen Mishpat) gives frequent examples of similar attitudes -- perhaps not so drastic.9

Roman history also had ideas that,home

3.

Lasson, History and Development of the Fourth Amendment.

4.

5 Co. Rep. 92.

5.

See Co. Inst. III.

6.

Lasson, 2£. cit., at 15.

7.

Ibid.

8.

It is not clear Nhether this included public trespassers as Nell as private.

9. Exodus 22:2.3.

See also Genesis 19:4-11, the disinclination of the mob to violate Lotls household in Sodom. (This principle of hospitality and protection declaring the dNelling place inviolable has its counterpart among the Bedouins of the Sinai and Arabian peninsula today.) See Deuteronomy, 24:10, creditors forbidden to enter a debtorls house to obtain security for the loan. The Talmud declared that search [Conld] 18

was a sanctuary -- the place Nhere the household gods d\'lelt. Cicero declared:

IIWhat is more inviolable, what is better

defended by religion than the house of a citizen

This

place of refuge is so sacred to all men, that is to be dragged from thence is unlaNful."

Despite the strong feelings

evidenced by Cicero, it is clear that Roman la,'" provided broad means of investigation through process of search.

In

civil suits, there had to be an accusation and investigation to determine whether a private person had grounds for the sui t .

Once the safeguards had been overcome, broad pm'lers of

investigation \'Iere allowed.

The process whereby the accuser

,'las permitted to search Nas as follows: 10 He Nas granted two kinds of precepts or warrants. One was an official Nri t of the court, ,,,,hich stated the names of the parties and the nature of the accusation commanded all officials or other individuals to assist the complainant in the gathering of evidence. :and ;t~e ': 'summoning of ,,,,itnesses. The other was a statement of the law that regulated the procedure of gathering the evidence. It provided that all papers and documents relating to the case Nere at the disposal of the prosecutor and everyone was placed under pain of penalty for resistance to the proper execution of the precept. Armed with these warrants, the accuser had what apparently

9.

[Con'd] and seizure a~ such ,,,,ere ill-favored and the issue. Rodkinson, The' Babylonian Talmud, Vol. V. Rodkinson notes that a great solicitude was shmffi in Nhich would now be known as civil and criminal cases. Rosh, in about the seventh century, declared that express permission was necessary before one could enter another's home. See Hosen M:lshp:l.t, c. 3895:5. Lasson, 2£. cit., at 16, 17.

19

amounted to a general power of search for the desired documentary evidence. He could search the house of the defendant or of any other person. and later: When it came oJ hOh'e ver, to the se iz ing and the taking a\.;ay of document s and records, the Roman IaN showed itself a little more thoughtful of the interests of the accused and took precautions to prevent any forging or insertion of evidential papers. ll , Thus, Roman LaN provides three precedents for later Anglo-American process:

(1) submission of an affidavit to

judicial authority stating a course of action, (2) with a reasonable amount of supporting attestation, and (e) the issuance of Narrants by that judicial authority which more or less describe the persons and/or to a lesser degree goods and documents to be searched.

The degree of freedom to extend the

search seemed almost unlimited in Roman times but the right to seizure seemed more restricted. 12 The Anglo-Saxon period in England based upon a legal system of Frankpledge and proof by compurgation Nas not thereby as dependent upon the necessity of discovering specific evidence

11.

The greater control exerted over seizure of documents ''las probably due to their great \veight as evidence. Strangely enough some scholars have also claimed that documentary evidence could not be compelled to be produced . . This seems to refute everything else -- Nhether it was a general rule is not clear.

12.

Lasson, 2£. cit., at 17. The search for stolen goods in Roman law contained a curious blend of legal theory and ancient, primitive ceremony. The victim had to name, with great particularity, the goods sought by the warrant. Then accompanied by a bailiff he proceeded with lance et licio (platter and apron) as his sole accoutrements as he was preceded by a crier and aided by a slave to break in any doors necessary for the search. 20

of Nrongdoing_. 13

Neverthe less, there seems to have been a

high regard for the privilege of the individual not to be disturbed in the peaceful habitation of his home. 14 One of the pervading antecedents of due process in cases of search and seizure is the oft-cited Article 39 of the

Magna Charta: No freeman shall be taken or imprisoned or disseized or outlaNed or exiled or in any Nay destroyed, nor Nill we go upon him nor send upon him, except by the lawful judgment of his peers or· by the IaN of the land. v/hile some writers have challenged that Magna Charta Nas not a constitutional precedent against Wlreasonable search and seizure,15 it must nevertheless be admitted that the Magna Charta provided some basis as a precedent for latter common IaN theory.16

Lasson describes hON tr.c Magna

13.

Lasson, 2£. cit., at 18. In Norman times, breakin3 into a home Nas a distinct felony. (Quaere Clausum fregi t) '?

14.

The invasion of the home Nas recognized as a crime, Hamsocn. This domus invasio justified the killing of the perpetrator in the act Nithout payment of compensation. See Maitland, Ancient Lal'lS and Institutes of England) Vol. II, glossary. During the Anglo-Norman period there is little that is questioned on rules of search and seizure, also little authority. Lasson,2.£.. cit., at 22 states: "It is most probable that the official badge of commission \'las sufficient l'larrant, in everyday criminal la\'l, for any action of this kind, and that Nritten Narrant \'Jas a later development."

15.

Lasson, 2£. cit., at 20.

16.

HoldsNorth, History of the English LaN, Vol. 9-, a t 10L~. See also Stephens, History of the Criminal LaN of England, Vol. I, at 104.

21

charta (perhaps despite itself) served the latter theorists. 17 The object of the provision (art. 39) Nas to prevent in the future all such extra-legal procedure, to affirm the validity of feudal la1<[ and custom against arbitrary caprice and the indiscriminate use of force, and to prohibit constituted authority from placing execution before judgment . . . . But here Nere some roots, these broad generalities in favor of la1<[ and liberty, out of \'lhich could grO\v the constitutional maxims of later centuries. They pointed in the direction of the more definite principles l~ich were to develop and they provided imposing precedent and respectable argument for their establishment. Coke and other eminent authorities assumed, perhaps honestly, the existence in some part of Magna Charta of a Narrant of every legal principle established in their 01~ day. Moreover, the veneration with which Coke's learning was vieNed secured the acceptance of his opinions as to exactly what Nas meant by the more or less uncertain provisions, although those very errors of Coke and others were of incalculable service to the cause of constitutional progress . . . From this vie\~oint more than from any other, the great charter may be regarded as important in the background of the principle of reasonable search and seizure. From Coke's interpretation of Article 39 of Magna Charta,18 in the seventeenth century, Common Law jurists \'lere to find precedent to attack

\~its

of assistance,l9 and unrea-

sonable searches and seizures in instances of criminal libel in the eighteenth century.20

Thus, whether Magna Charta Nas

ever truly intended to demand due process is not an issue as

17.

~.

18.

1 Co. Inst.

cit., at 21.

45.

Cit. James otis attack in Paxton's Case Quincy 51 ff. Pratt, C. J., in Huckle v. Money 2 Wils. 205, 95 Eng. Rep. 768 (1763) and Mansfield in Money v. Leach 3 Burr 1692, 195t. Tr. 1001 (1765).

22

the law developed -- it is enough that it was so considered by Lord Camden, Lord Mansfield and most important -- by Coke.

To-

gether Nith Roman precedents they carved out the essential limitations on rights of search and seizure.

II.

The practical needs of the crown and parliament for investigation into matters of trade and customs revenues gave impetus to neN procedures of search and seizure.

From the

fourteenth to the seventeenth centuries, legislative history recorded the enactment of laws giving certain trades the right to make investigations to uncover smuggled taxable goods and counterfeiting. 21 The efficiency of the process J however, was 22 not high. In the fifteenth century, a practice evolved l'lhereby certain trades \'Iere authorized to enter and search the premises of those engaged in the trade or a related trade and (in some cases) to prosecute and punish violators of Crotm rules. 23 This practice l'laS continued and fostered by the Tudors in the cloth makers and dyers, 24 oil and tal10N Norkers,25 and printers (stationers) .26

The last group was to

21.

9. Edw. III, C. 9, lOJ 12 (1335) provided for innkeepers at passage ports to search guests for false money.

22.

Subsequent amendments had to provide searches of the innkeepers. Finally, 4 Henry IV, C. 21 prohibited further deputations and bribes,

23.

Lasson, 2£. cit'J at 24.

24.

11 Hen.VII, C. 27 amended by 29 Eliz. C. 13 (1597) to allow deputization of authority. 3 Henry VII J C. 14 (1511). See Holdsworth, Vol. VI, ~t 364.

25. 26.

23

play an ever important role in the suppression of tlTreason" and the development of the la\'l of defamation. 27

It is kno\'1n

that the printers carried a warrant of sorts in their course of censorshiP.28

It is at this time that censorship and the law

of libel became interwoven with the process of search and seizure. 29 The sixteenth century sal." great zeal by the Privy Council and related courts of star Chamber and High Commission in the detection of non-conformism, sedition, and like offenses. No limitations seem to have been observed in giving messengers powers of search and arrest in ferreting out offenders and evidence. Persons and places Nere not necessarily specified, seizures of papers and effects was indiscriminate, everything was left to the discretion of the bearer of the Narrant. Oath and probable cause, of course, had no place in such warrants, '''hich Nere so general that they could be issued upon the merest rumor with no evidence to support them and indeed for the very purpose of possibly securing some evidence in order to support a charge.30 The High Commission made use of the general warrants to arrest and imprison on suspicion even though the accompanying procedural steps of a significavit from Kings Bench and a

27.

See Holdsl"orth, The Develo ment of the Law of in 16th and 17th Centuries, 1 La,." 2. Rev. at

28.

Ibid.

29.

Veeder} Histor* and Theory of the Law of Defamation} 3 Col. L. Rev. 5 6 (1903).

30.

Lasson, 2.£. cit., at 26.

24

:

.

:, '" -'

~;~

Nri t de excarrounica to capiendo Nere not used.

31

The general

I
As has been intimated, it

probably had its origin in the collection and search of cus32 toms. The l'lrits of assistance have been traced back at 33 and some feel that it was earlier. 34 The least to 1662, history of such warrants 1s directly related to the idea of 35 the sanctity of the home, even against police authority. Thus some formal authorization \'las needed to provide a legal basis for the invasion of the home -- this \'Jas the general warrant.

Charles I employed a different method to coerce

his forced loan.

He used a special warrant of imprisonment

against named persons upon fiat of the King

per speciale

mandatum domini regis similar to the French lettres de cachet. 36

31.

See Stephen, The Criminal Law, Vol. II at 42C.

32.

See note 21.

33.

See Lord Mansfield in Cooper v. Boot, 4 Doug. 347 (1785).

34.

Lasson, 2£. cit., at 29.

35.

A cons table who broke into a home to search in hue and cry did 60 at his otm per11. See Holds ... 2£. cit. J Vol. III, 279. Also, Yearbook, Ed. IV., Mich. Pl. ro-(147B). While one could enter another's land to retake stolen goods, he could not break into the house in such a pursuit.

36.

Darnells Case 3 St. Tr. 1 (1591) was the legal precedent. Actually .. the General Warrant as later used in the North Britain Number 45 affair, were not such fiat types.

25

Although the Petition of Right (1628) called for the cessation of such practices, Charles I and the Privy Council continued issuing general warrants to collect taxes, 37 and to seize papers of suspected persons. 38 Despite the protests of the leading jurists of the common la," in the 17th century, 39 a \«arrant . . general as to persons or unrestricted to documents sought, should be restricted to a particular place after a showing upon oath a probable cause before a magistrate. general t'larrants \'Jere used throughout the period. 40

These

The

Restoration resulted in a close supervision of the press 4l and this found as its primary method the use of general 1'1ar42 rants. The recurring need of adequate taxes also gave rise to ''!hat t'lould be later termed unreasonable search and seizure. 43 37.

"Tonnage and poundage," 1629.

38.

See Johnson, Life of Sir Ed. Coke, Vol. I I at 320. will was seized.

39.

Lord Hale, see Lasson, £R. cit., at 35; also Coke's somewhat unclear denial of general warrant's legality in 4 Co. Re p. 176, 1 77 .

40.

Al though the Long Parliament said that a general loJarrant used to enter a home to search for stolen goods was a break of privilege that t'!ould render officials liable to punishment . . the Ordinance of 1643 used such warrants to enforce censorship. See also Milton's Areopagitica condemning this act.

41.

This will be discussed belo,,,_ Britain and other cases.

42.

Hariss' Case . . 7 St. Tr. 929. Also Carr's Case 7 St. Tr. 1127. "Hearth Money" tax Car I I C. 33 gave right for a daylight search of home by revenue officers. [Cont'd]

43.

26

Also see infra:

Coke's

the North

Although some tax procedures

'~ere

repealed by the Glorious

Revolution, the lavish rights to enter homes to search for 44 tax purposes \'lere not retained to the same extent. Thus at the close of the seventeenth century, taxes enforced by entering the home under pONer of a general t'larrant were on the \-Jane. By the time of Walpole, a proposed scheme of excise upon tobacco and \'line to be taxed at the \-Jarehouse rather than

"

I II

upon importation \'las roundly decried because it provided for search of such places.

1

I

Even Walpole's contention that only

45 Blackstone special warrants would be used was in vain.

\

,

I

describing the issue of economic advantage of excise as against possible arbitrary practices said: 46 But, at the same time, the rigour and arbitrary proceedings of excise laws seem hardly compatible with the temper of free nation. For the frauds that might be committed in this branch of the revenue, unless a strict watch is kept, make it necessary '. . . to give officers a power of entering and searching the houses of such as deal in excisable commodities of the day, and in many cases, of the night likewise . . . . Al though the use of the General Warrant was on the \-,Jane in tax investigations by the end of the seventeenth century, its 43.

[ConttdJ See 1 Wm. & Mary C. 10 (1688) repealing ItHearth Moneylt tax and describing it as . . . "but a badge of slavery upon the \'Ihole people, exposing everyman I s house to be entered into, and searched by persons unknown to him

. . ."

44.

See 1 Wm. & Mary C. 24 (1688) special \'Iarrants for liquor excises.

45.

Lasson,~. cit., at 41.

46.

1 Commentaries 318.

27

j 1

; 1

,. j

[

r

.

,[

'I . I

!

use in matters of censorship and sedition Nas not really decided until the second half of the eighteenth century.

III. From the expiration of the Licensing Act in 1695, until the accession of George III, the validity of General Warrants in Treason and censorship Nere little qUestioned. 47 The use of the General Warrant in censorship and treason cases Nas finally overthrO\ffi and condemned in the English courts by \oJhat became knOlm as the North Britain! Number 45 affair. \~lter,

A

John Wilkes, published in this sheet an attack upon

the crotm.

In the resulting furor wholesale

arrests~

searches

and seizing of documents were accomplished under the general warrant.

48

Those falsely seized and searched commenced a

series of suits for false imprisonment and trespass 49 against the messengers carrying out the warrants.

The plaintiffs

Nere met \'lith a sympathetic court headed by Pratt '''ho allO\
47.

Rex v. Earbury, 2 Barn. K.B. 396, 94 Eng. Rep. 544 (1733) decided on a different issue is the only case questioning the use of general warrants.

48.

Wilkes ,,,as finally apprehended and imprisoned and then released on grounds of Parliamentary privilege.

49.

Huckle v. Money, 2 Wils. 200, 95 Eng. Rep. 768 (1763); Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 498; Money v. Leach, ci t. supra-.--

28

extremely heavy damage awards 50 and got himself knighted in the process.51

In Wilkes v. Wood, 98 Eng. Rep, 489 (1765), Pratt

directly tested the issue of general Narrants and vigorously decried them, at 492: The defendants (undersecretary and messengers executing the general warrants) claimed a right under precedents to force persons I houses, break into escritoires, seize their papers upon a general warrant, where no inventory is made of the things taken aNay, and Nhere no offenders' names are specified in the warrants, and therefore a discretionary power given to the messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may effect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject. If higher jurisdiction should declare my opinions erroneous, I submit as will become me, and kiss the rod; but I must say I shall alNays consider it as a rod of iron for the chastisement of the people of Great Britain. In Money v. Leach, 3 Burr. 1692, 97 Eng. Rep. 1050 (1765), a case arising from the North Britain affair, Mansfield, C. J. attacked the use of the general warrant, at 1742, at 1075: A usage to grow into law ought to be a general usage, one Nhich it would be harmful to overthrow after a long continuance. This on the other hand, was a usage of all other justices and conservators of the peace . . . It is not fit that the judging of the information should be left to the officer. The magistrate should judge, and give certain directions to the officer. 50.

Huckle v. Money, supra, at 207: "To enter a man I s house by virtue of nameless warrant, in order to procure evidence, is Norse than the Spanish Inquisition; a law under 1'Jhich no Englishman would want to live in a house . . . These are the ideas Nhlch struck the jury on the trial; and I think they have done right in giving exemplary damages."

51.

He became Lord Camden.

29

A usage to grow into law ought to be a general usage> one which it \\Tould be harmful to overthro\
t~rrants

decide the crucial issue

tangentially and did not actually whether warrants as to the person,

were adequate process to commit searches and seizures in matters of s ta te security al though such warrants \'Jere general as to the papers sought.

The issue finally came before common

pleas in the landmark case of Entick v. Carrington, 2 Wils. 215,

19 St. Tr. 1029 (1765).

Pratt now elected to decide against

the warrant saying (at Wils. 280): If this point should be decided in favor of the government; the secret cabinets and bureaus of every subject ~~n the ~~ingdom would be t}u>o\ffi open to the search and inspection of a messenger, whenever the secretary of state shall see fit to charge, or/even to suspect a person to be the author, ~rinter or publisher of a seditious libel . . . . LOne1s] house is rifled, his most valuable papers are taken out of his possession, before the paper for which he is charged, is found to be criminal by any competent jurisdiction, and before he is convicted of writing, publishing, or being concerned in the paper. Such is the pot'ler> and therefore one should naturally expect that the law to \\Tarrant it should be as clear in proportion as the power is exhorbitant. The battle in Parliament to disavow, legislatively, the general ,'<'arrant \'las led by Pi tt 52 and by 1767 had one through

-52.

Strangely enough, Pitt himself issued general Narrants in

1760, sanctioning his acts on grounds of general safety !lin time of war and public danger." 30

an act 53 declaring the practice void except in specific cases. 54 Pitt's attack on the general warrant contained the following. 55 The poorest man, in his cottage, may bid defiance to all the forces of the crown. It may be frail; 1 ts roof may shake i the \'t'ind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.

IV. In the American Colonies, search and seizure under general search warrants Nere centered around the controversy over writs of assistance 56 and the suppression of smuggling. 57 This writ was authorized in the American Colonies in 1696. 58 The writ gave even greater powers to officials than the general warrants of the North Britain cases, supra. The warrants in those cases, it is true, authorized the apprehension of undescribed persons and the indiscriminate seizure of their papers, but they were connected with a particular case of libel and consequently were necessarily limited to some extent not. only in object, but what is more important, in time. In other words, ~

cit . , at 49, cites Parliament IS reluctance.

53.

Lasson,

54.

E. g. general warrants for seizure of persons were a110l'led.

55.

Quoted without comment. See Cooley, Constitutional Limitations, Vol. I at 611.

56.

See 13214 Ca~ II, C. 11, 3.5 (1662) -- persons authorized under seal of Exchequer could search under general warrants.

57.

Molasses Act, 1733.

58.

7 & 8 Wm. III C. 22, 8.6 (1696), 31

the words, the warrants were not permanent in the officers' hands to be used thence forth to search and seize the authors of all seditious libels and their papers. The more dangerous element of the writ of assistance, on the other hand, was that it \vas not returnable at all after the execution, but was good as a continuous license and authority during the whole lifetime of the reigning sovereign. The discretion delegated to the official was therefore practically absolute and unlimited. The writ empotvered the officer and his deputies and servants to search at their will, wherever they suspected unaccustomed goods to be, and to break open any receptacle or package falling under their suspecting eye. Its only redeeming features were that it did not of itself authorize the arrest of anyone and that it permitted the search of land structures only in the daytime. 59 Although initially, customs officials carried out their searches with recourse only to their commissions as officers, colonial governors later adopted the expedient of issuing general writs of assistance. 60 be roundly condemned by their abuse.

These writs came to When in 1761, all

expired,61 the Writs of Assistance Case arose.

i~its

To best

understand loJhat occurred, it is necessary to narrON the issues. This can best be done if there is less frequent recourse to the political ferment of the time.

Suffice it to say that

political, economic and social questions Nere in the forefront ~

59.

Lasson,

cit., at 54.

60.

Ibid., at 55, later on the Colonial Courts issued the Nrits.

61.

By Statute of Queen Anne, ,~its expired six months after the death of the sovereign.

32

of the case. 62

The issues were:

1.

Were writs of assistance general or special?

2.

If general, were they constitutional?

3.

If constitutional, were they applicable in the colonies?

4.

If applicable in the Colonies, were they issuable by Colonial Courts?

A II no " answer to any of these questions Nould have defeated the advantage of these Nrits.

The Superior Court of

Massachusetts found for the government.

However, the legal

arguments proposed by James Otis were formidable.

Issue 1:

by 12 Car. II C. 19 (1660), writs of assistance were provided as special.

Therefore, the '~its of assistance as mentioned in the 1662 Act 63 should likewise be construed special. For

if construed general, it was an arbitrary overthrow of due

process and thus repugnant to Magna Charta. 64 Issue 2:

If the Act of 1662 was repugnant to Magna Charta,

it was against the Constitution.

An act against the

62.

Governor Bernard and Chief Justice Hutchinson and customs officers had economic interests in all seized goods. James OtiS" Sr., who had opposed writs was a frustrated Chief Justice applicant. The merchants had a very profitable venture in smuggling. The Home Country was in desperate need of further tax revenues, etc.

63.

14 and 14 Car. II., C. 11, 5.5: broad search powers.

64.

See Art. 39 supra and discussion there.

33

It gave customs officers

'~I

constitution and repugnant to Magna Charta

\~as,

according

to precedent established by Lord coke,65 void. Issue 3:

By act of William 111,66 customs officers in America

Nere given the

II

same pONers and authorities" and "like

assistance l1 (emphasis added), English officials held.

On its

face, this seems sufficient support for the proposition that the ",rits were received in the Colonies. Issue 4:

The Act of 1662 had expressly provided that the

English Court of Exchequer was the only proper issuer of writs of assistance.

Notwithstanding a provincial statute

giving the Massachusetts Superior Court Exchequer jurisdiction, such Superior Court had in the past disclaimed certain powers possessed by the English Court of Exchequer. Furthermore, the statute of William III, supra, had merely extended the powers of customs officials in America to the same level of authority as their English counterparts.

This

statute, even if it extended writs of assistance to the Colonies, did not infer that the pOl'lerS of issue residing solely in the English Court of Exchequer were likewise transferred to the Colonial Courts. The answer the Superior Court made was a denial of the contention that the Act of 1662 said special warrants b5.

See Dr. Bonham's Case, 8 Co. Rep. 107, 118 (1609).

66.

7 & 8 Wm. III, C. 22, s.6 (1696).

34

r Nere to be used and therefore so construed the warrants as general.

The Act of 1662 was not repugnant to the Constitu-

tion

here a long list of seventeenth century cases

could have been cited decided by Scroggs, C. J., in support of general warrants.

As for the practice of the Court of

Exchequer, England, Hutchinson 67 learned that general Nrits \IIere made out as a matter of course even ''lithout supporting affidavits. Despite the upholding of the general search powers of the writ. of assistance, the attack on general warrants soon to come in England wi th North Britain Number

1~5,

supra, Nas

matched in the Colonies by a flouting of customs rules. Smuggling continued, the Stamp Act brought the riot of 1765, and the officials \'lere resisted with growing frequency. To counter this problem and invest the customs officials with enough authority to carry out their functions, the TONnshend Acts Nere passed 68 in 1767.

One section of

these Acts empowered Colonial Courts to issue Nrits of assistance. 69 by

The legalization of the writs of assistance

the TOlmshend Acts did little to aid the actual

D7.

Chief Justice of the Mass. Superior Court during this case obtained his information of English practice by writing a former associate -- had he consulted the English attorney general, who was then Pratt, the decision might not have gone so.

68.

There Acts employing general search proceedings \'lere passed one year after the practice was condemned in Parliament and in Entick v. Carrington for libel cases.

69.

7 Geo. III, C. 46 J S .10. The legality of t'lhich Nas denied by the Attorney General,

35

administration of the customs officials.

In NeN England the

people resisted (often \'lith force);7 0 and in the other colonies, the courts themselves resisted issue of the \~its.71 With the onset of war in 1775, seven states ''Iere to eventually declare some form of limitation upon the power of search and seizure. 72

The Massachusetts Declaration of Rights

of 1780 comes closest to approximating the final \,wrding nON embodied in the Fourth Amendment. 73 With the tumult that general \'larrants and writs of assistance created, it is strange that supervision of search and seizure and \'Iarrants should not have been embodied in the Constitution and should have to await the addition of the Bill of Rights.

The Constitutional Convention of 1787 did

consider the issue, but failed to enact a Bill of Rights because of the lack of time and press of business,7 4 the argument that it Nas not needed,75 and finally, because

70.

Hancock's sloop had to take under cover of fleet guns. 7, Lasson, ~ cit., 72 ff.

71.

See Lasson,

72.

Virginia (1776), Pennsylvania (1776), North Carolina (patterned after Virginia, 1776), Vermont (not immediately independent, 1777), Massachusetts (1780), and Ne\'l Hampshire (patterned after Mass ., 1784).

73.

See Article XIV.

74.

Lasson,

75.

The federalist argument that a Bill of Rights should be Nithin the reserved pONers of the states.

~

~

cit., 73 ff.

cit., at 85 ff.

it would be a dangerous inclusion. 76

With the adoption of the

constitution, the first objection, time} was dispelled. Madison refuted the theory of delegated and reserved pO\'Jers 77 and thus paved the way for the conSideration of the Bill of Rights.

v. While the Fourth Amendment did "embody in it positive guarantees against the oppression they had formerly felt,,,78 the people of the various states still did not know the limitations it placed on their privacy.

The nineteenth

century judicial development of the Fourth Amendment limitations upon intrusion into one's home, business and political life along lines of the Fourth Amendment cannot be said to have been rapid. 79 It 1s not surprising to find that during the century folloNing the adoption of the Federalist Constitution and its first ten amendments, only a few cases involving interpretation of the Fourth Amendment reached the Supreme Court. During this period the limited criminal jurisdiction of the Federal Government was not exercised by Congress except in minor instances. Later on, after the passages of the Interstate Commerce Act in 1887 and the Sherman Anti-Trust

76.

See Federalist) No. 84} by specifying certain rights others were immediately surrendered.

77.

Annals of Congress, 1st Cong . , 1st SeSSion, at 453-4.

78.

Wood, The Scope of the Constitutional Immun1~y Against Searches and Seizures, .34 W. Va , L.2.1 (1928) at L

"0

Lasson,

IJ

•

~

cit"

at 106.

37

r !

La\1 in 1890 J a series of cases arose invol ving the question \~ether the compulsory production of papers by legal process violated the Amendment.

I

It is significant that the Fourth Amendment seems to contain two restri c tions upon governmental searches and seizures -- one l'Jhich forbids "unreasonable

searches~

11

and

the other which specified certain particulars to be observe d before

\~arrants

may be issued.

The prohlbi tion against "un-

reasonable searches ll Hould thus seem to be intended to cover something other than the form of warrant. 80

Further, in the

great English precedent, Entick v. Carrington,81 Lord Camden had linked the privilege against unreasonable searches with that against self incrimination.

He had condemned not onl y

the general character of the warrants, but also their issue to search out evidence : 82 It is very certain, that the law obligeth no man to accuse himse If; because the necessa"r y means of compelling self accusation falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same princ iple. This linking of search and seizure with self in-' crimination came before the Court in the famous case of Boyd v. United States. 83

The Court held that [use of a

statute which provided that if a claimant of property failed

Bo.

Fraenkel, concernin Searches and Seizures, 34 Harv. L. Rev. 361, 366 (1921 ,

8l.

Cit. supra.

82.

19 St. Tr. at 1073 (1765) 0

23 .

116 U.S . 616

r

1886. 32

to produce invoices called for by the District Attorney, then the allegations of the District Attorney were deemed admitted] use of the statute Nas in error in that the statute in effect authorized an unreasonable search 84 and also that the claimant was compelled to testify against himself. 85

The importance

of Boyd is that it decided that a measure Nhich accomplishes an unauthorized search is repugnant to the Fourth Amendment: 86 It is our opinion~ therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in Nhich a search and seizure \'lould be because it is a material ingredient, and effect the sole object and purpose of search and seizure. A search for evidence is also decried : 87

The search for and seiZUre of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him . . . In the one case, the government is entitled to the possession of the propertYj in the other it is not. Previously, the Supreme Court had alloNed competent evidence in criminal cases without inquiry into how it

84.

\~s

Fraenkel, ~. clt.~ at 366 says that this findin~ is actually dictum~ Accord,4 Col. L. Rev. 60 (1904), Taft, 6 Col-.--Y;-. Rev. 375 (1906), Adams v. NeN York,

192 U.S. 585 (1904).

85.

See Fifth Amendment.

86.

116 U.S. at 622.

87.

116

u.s.

at 623.

39

r procured to avoid raising a collateral issue.

After the Boyd

decision, such a practice Nas questioned and some lower Federal Courts decided that mere reception in trial of evidence obtained through illegal search constituted error. 8S

HONever,

the Supreme Court in Adams v. New York, 192 U.S. 585 (1904) upheld a conviction on the grounds that:

(1) there l'laS no

illegality because the seizure was incidental to the execution of a valid warrant;89 and, (2) the issue could not be collaterally raised. 90 In other decisions of the nineteenth century, the Supreme Court had decided that Nhen martial IaN has been declared, military officers might lawfully arrest anyone who from information based on reasonable grounds is believed engaged in insurrection and may order a house forcibly entered and searched. 9l

However, if martial law does not exist nor

can be la\<Jf'ully declared, the Fourth Amendment cannot, in any l'lay be infringed on the basis of some emergency. 92 The Fourth Amendment has been held to apply to criminal proceedings only and cannot be used to recover debts

88.

United States v. Wong Quong Wong, 94 Fed. 832 (1899).

89.

This is peculiar because there was evidence to shaN a warrant never even existed!

90.

This is the most often used theory. See Fraenkel, ~. cit., 369 and cases cited note 47. The Adams case is by no means the conclusion to the problem.

91.

Luther v. Borden J 7

92.

Ex Parte Milligan, 4 Wall. 2 (1866).

Ho~

40

1 (1849).

in civil sUits. 93

Like the first eight amendments of the

constitution, the Fourth Amendment was to be applied to the Federal Government only;9 4

however, the argument Nas raised

that the Fourteenth Amendment re-enacted the first eight

Amendments against the states.

The Slaughter House Cases,

16 Wall. 36 (1873), decided (at least for the nineteenth century) that the privileges and immunities of United states meant those possessed by virtue of national citizenship and not those Nhich a citizen of a state \'(Quld have.

In Ex Parte

Jackson,95 it was decided that mail which was closed could not be opened without a search warrant. 96 The present struggle Over

privacy~

from Nhich the

issue of the extent of authority given the government to search and seize evidence is but one small phase, is part of a continuing judicial struggle to weigh public against private interest.

The near impossibility of proper adjust-

ment of these oft conflicting considerations has been expressed by Cardozo: 97 Other sanctions, penal and disciplinary, supplementing the right to damages, have already been enumerated. No doubt that protection of 93.

Murray v. Hoboken Land Co., 18 How. 272 (1855).

94.

Smith v. Maryland, 18 How. 71 (1855); Butse.

95.

96

96.

See Wood, QR. cit., 34 West Va. L. Rev. (1934) at 139. Only exception is prison mail. England allows the mails open at will.

97.

People v. Defore, 242 N.Y. 13, N.E. 585 (1926).

u.s. 727

(1877).

41

the statute (New York provision on search and seizure) liould be greater from the point of vieN of the individual Nhose privacy hTould be invaded if the government t
98.

Cit. supra.

99.

Paxtons Case, cit. supra.

lao.

Wood, 2£. cit., at 154.

42

B.

Privilege Against Self Incrimination The term "privilege" has not been confined to one

phase of the IaN.

The term can be applied to a defense to

an action brought against utterance of defamatory ,~ords;l a right of precedence in parliamentary procedurej2 a right

extended to

II

certain classes either by rules of international lal'l,

the policy of law,

. . . or of the administration of govern-

ment, Nhereby they are exempted from arrest on civil charges;U 3 communications made to one 1n a confidential or fiduciary capaclty,4 and that Nhole area of Anglo-American jurisprudence arising on the issue of self incrimination. 5 centrate on that area of

It

This will con-

prlvllege ll coming within self

incrimination as follows: I.

ORIGINS OF THE PRIVILEGE AGAINST SELF INCRIMINATION

II.

THE PROBLEM IN THE 17TH CENTURY

III.

THE

IV.

PRIVILEGED COMMUNICATIONS

COLONIES AND THE AMERICAN EXPERIENCE

1.

See Prosser, Torts, (2ed. 1955) 606 et ff.

2.

See Black's, 4ed (1951), 1360.

3.

Ibid.

4.

Black's, at 349.

5.

There are other meanings of the Nord Itpri vilege 1,; see Black's 1359 ff. 8 Wigmore, Evidence, §2250 et ff. Constitution of the United States, Amendment V.

43

I. It has been maintained 6 that the roots of the privilege against self incrimination are to be found in the resistance of the English to the administration of the oath ex officio of the ecclesiastical courts. The offensive characteristic of the procedure of Nhich the oa th ''las a part \lias its requirement that a person ~'lho had not been charged by a formal presentment or accusation answer under oath all questions put to him by the proper ecclesiastical official. The purpose of the inquiry 1ms to discover suspected violations of that law or custom, or to establish the truth of either vague or definite charges not disclosed to the person questioned.7 Earlier, William the Conqueror had put an end to the Anglo-Saxon custom of Bishops

entertaining Buit in popular

courts,8 but in the tNelfth and thirteenth centuries there arose a struggle over jurisdiction between lay and clerical courts Nhich had some effect on the attitude about the oath ex officio.

Whether this struggle concerned merely juris-

diction or Nas an actual reflection of opposition of the inquisitorial methods attendant l'lith the oath ex officio is still a matter of contention for legal historians. 9

O.

8 Wigmore §2250j Morgan, The Privilege Against Self~ Incrimination, 34 Minn. L. Rev. I (1949); Maguire,

Attack of the Common La,~ers on the Oath Ex Officio as administered in the Ecclesiastical Courts in England, as cited in 8 Wigmore at 267, note 1.

7.

Morgan, 2£. cit., at 1.

8.

8 Wigmore, QR. cit. at 270.

9.

See Morgan, 2£. cit., at 1.

44

--

The statute De Articulis ----CleriIDsettled the line of clerical ~~~~~

jurisdiction and free-d clerical courts from interference by

lay officials arn:l writs of prohib1tions 1n causes

matrimonial and testamentary.11

But~ later in the same

reign, the Prohib1tio formata de Statuo Artlculis

CIeri~

limiting the jurisdiction of the diocese of Norwich in lay areas, proh1bited the practice of holding general pleas in areas within the exclusive jurisdiction specified to the King I s Courts .12

There is some dispute \'lhether De Articulis

Cleri Nas motivated by the animus against Church's administration of the oath. 13

If it was so motivated, it 1s clear

that even at this early date Parliament felt some threat to its security by forced subjection to inquisitorial proceedings. 14

However, the limitations placed upon the

10.

9 Ed. II (1315).

11.

8 Wigmore,

12.

Morgan,~.

13.

See 8 Wigmore,

14.

Wigmore says the nature of the opposition to the administration of the oath ex officio by the Church, t'las an attempt to limit ecclesiastical jurisdiction De Articulis Cleri in the early 1300 's t...as not concerned l.,.ith the method of eccleSiastical procedure out only t'lith the limits of Jurisdiction. Maguire says that though jealousy of jurisdiction is evident throughout the period, there is also a steady and grm'ling opposition to the administration of the oath itself as repugnant to the ancient customs of the Realm and the spirit of the Common LaN. She cites the Prohibitio of Henry III against the energetic employment of the oath by the Bishop of Lincoln in 1246 and Bishops of Gloucester and Worcester in 1251.

~.

cit., at 271.

cit., at 3. ~.

c1t., at 272.

45

Church did not go unchallenged. 15 The prelates in some inexplicable manner had a purported Act of Parliament put on the statute books as having been enacted in the second session of the parliament in the fifth year of Richard II, \'lhich in terms gave them the power they \vanted against heretics. . . . But at the very next session the Commons declared that they had never assented to this enactment and asked that it be declared void . . . . Under Henry IV however, the clergy succeeded in getting a much more drastic statute, aimed especially at the Lollards . . . 1 6 Yet despite the limitations that were placed upon the clerical jurisdiction, l'lithin the area allowed, little restraint seeme.d placed upon their procedures .17

What

would later become a sore point - heresy trials - was granted to the Church jUrisdiction18 by De Heretico Comburendo in 1401 .

Part of the procedure of such trials

was examination and questioning under the oath ex officio. 19

15.

Morgan, 2£. cit . , at 5.

16.

Morgan, 2£. cit . , at 5.

17.

There were three classifications of preliminary procedure-accusatio, denunciato, and inguisito. The inquisito, allowed examination with presentment. See 8 Wigmore, Q£. cit., at 275.

18.

2 Henry IV C. 15 and 2 Henry C. 7 (1414) - delivery of heretics to Church.

19.

Maguire says not until 2 Hen. IV, C. 15 (lIfOl) does Church get right to determining heresy by use of oath ex officio and for this reason Stat. is sometimes---called flEx Officio rather than by better known De Heretico Comburendo. II When repealed by 25 Hen. VIII C. 14 (1533), the preamble points out grievances against administration of oath ex officio . See 42 Edw . III, C. 3: "No man shall be put to answer Nithout presentment before justices, or matter of record, or by due process and writ original, according to the old la\" of the land. II

46

' ~'."

!.

I

t.l

';

In 1533, De Heretico Comburendo h'as repealed. 20

The repeal,

Nhile not depriving the Church from trying cases of heresy, did ", . . insist on something more than ex officio" proceedings; it provided that every person presented or indicted of any heresy, or duly accused !2L two laNful Nitnesses, may be

. c ommi t ted to the ordinary. . . . 1121 It is significant that, at least by 1533,22 there

is a shift in emphasis in the church-lay controversy from questions of jurisdiction to questions of method.

When the

eX officio procedure gets carried over into the prerogative courts the grounds for strife 1'lould become clearer: Thus, on the one hand, it was easily arguable that, in ecclesiastical law, the accused could not be put to answer lex offi6io mero' without some sort of h'i tnesses or presentment or bad repute j and in this sense an oath 'ex officio' (as it came to be called) might be claimed (as it \'las claimed) to be a distinct thing from the same oath Nhen exacted on proper conditions, and to be therefore canonically unlawful. But, on the other hand, it is plain to see, also hON, 1n the headlong pursuit of heretics and schismatics under Elizabeth and James, the 'ex officio' proceeding, lawful enough on Innocent Ill's conditions about 'clamoso insinuatio' and famma publico, I would degenerate into a merely unlaNful process of poking about in the spec~lation of finding something chargeable. 3 20.

25 Hen. VIII C. 14 (1533).

21.

8 Wigmore, Q£. cit., at 277.

22.

See note 19 supra.

23.

8 Wigmore, Q£. cit., at 276.

47

....,.

For the remainder of the sixteenth century, the Church Nas in a struggle to keep its jurisd1ctions. 24

When

Elizabeth ascended to the throne, heresy jurisdiction was removed from Courts Christian 25 - there was little question that jurisdiction of such courts

~oJas

to be confined to

matters matrimonial and testamentary.26

By the same statute

that repealed clerical jurisdiction in matters of heresy,27 Elizabeth acquired into her o\m hands the power of oath ex officio and the instrument of High Commission and Star Chamber to use it. 28

II.

In 1583, the Court of High Commission, authorized to use the oath ex officio procedure,29 came to the issue whether its jurisdiction covered cases other than matrimonial or testamentary as its predecessor clerical courts had been limited and \'Jhat procedures it need apply.

Although his

grounds for the decision \'Jere unclear, Coke in BurroNes

24.

i.e. Heresy. Jurisdiction in 1547 by 1 Ed. VI C. 12, S.3, revived by Mary in 1554 by 1 & 2 Phil. & Mary, C.6, repealed in 1558 by 1 E1iz. I, C. 1, S.15.

25.

See note 24.

26.

See 8 Wigmore, 2£. cit., 5 Co. Rep. 8 (1583)

27.

See note 24.

28.

See 1 Eliz. I C. 1, & 4 Co. Inst. 325. paper on defamation.

29.

Caudry's Case, 5 Co. Rep. 8 (1583).

48

See previous

case30 comments on three earlier cases 3l l"'here common lat'l

;;..;.---

courts had nullified High Commission penalties on grounds akin to a privilege against self-incrimination.

In Collier

v. Collier, 4 Leon. 194 (1589), Coke himself defended an action before the High Commission obtaining a

l~it

of pro-

hibition against spiritual courts examining the parties as to incontinence.

However, in Dr. Hunt's Case, Cro. Eliz.

262 (1591), Kings Bench held it lal'lful for spiritual courts to question a person by oath ex officio concerning incontinence where a presentment was made.

While these cases

proceeded on the issue of the potoJer of the spiritual courts of High Commission to administer the oath, it is not clear '1hether the persons _summoned had been even formally charged with an offense.

This raised the further issue--could

church courts require such a person without prior presentment to accuse himself?

This question in turn depended on

an interpretation of the maxim: 32 Llcet nemo tenetur se ipsurn prodere tamen prodius per farnam tenetur seipsum ostendere utrum poasit suam lnnocentiam oatendere et seipsum purgare. Wigmore translates this: 34 "Though no one is bound to become his otm accuser, yet when once a man has been accused by general report, he is bound to show whether he can prove his innocence and to vindicate himself.

II

30.

3 Buls. 48 (1616).

31.

Scrogs Case, Dyer l75a (1559), Hynde's Case, Dyer 175b (1569) and Leigh's Case (Morgan ~. cit. at 7 note 28 . )

32.

See Morgan,

33.

8 Wigmore

~.

cit., at 8 (m.30)

§ 2250 (McNaughton ed. at 49

268) II

(McNaughton 34 disagrees and thinks Wigmore's translation is an attempt to prove his position that inquisitorial procedures ll1ere not challenged prior to 1583.)

Morgan states: 35

"All that can safely be asserted is that the common lai'lyers both in the second half of the 13th and all of 14th century and under Henry VIII and Elizabeth resisted the inquisitorial procedure of the spiritual courts, whether Romish or English, and under Elizabeth began to base their opposition chiefly upon the principle that a person could not be compelled to furnish under oath anSNers to charges which had not been formally made and disclosed to him, except in cases testamentary and matrimonial. No doubt, there l'laS some confusion between the attack on the power of the spiritual courts even entertain certain causes and its pO\'1er to institute proceedings by the ex officio oath. But there can equally be no doubt that to the common lawyers a system Nhich required a person to furnish his own indictment from his Olm lips under oath 'i'las repugnant to the laN of the land. II Although it is fairly clear that the common laN courts before 1640 felt that an accused could be made to answer incriminating questions, it 1s likewise certain that

such questions could not be asked until the accused had pleaded to the indictment. 36 In 1640, with the abolition of Star Chamber, it was declared by the common law courts that a man on trial could not be compelled to disclose his guilt by oath ex officio. 37

The grounds for so deciding l'laS a violation of

34.

Ibid.

35.

QQ. cit., at 9.

36.

Morgan, QR. cit., at 9.

37.

Lilburn's Case, 3

HON,

St. Tr. 1342 (1640)

50

Ij

the liberty of the subject and Magna Charta.38

In 1641? The

-

TI'lel ve Bishops Case found that the accused need not be made to answer a query which t'Jould in effect be a self-accusation.

Penn's case,39 upheld this claim in 1670 in a trial for tumultous assembly. It,

0

•

By 1700, the rule is fairly fixed,

that

a man is not obliged to accuse himself . . . implied

that he is not to discover a disability in himself,.

0

,II

40

Morgan states (at 9) QR. cit. supra: lilt may, therefore, be fairly stated that before the middle of the 1700's, a man could not be required in England to accuse himself on oath in any proceeding before an official tribunal seeking information looking to a criminal prosecution, or before a magistrate investigating an accusation against him with or without oath, or under oath in a court of equity or under oath in a court of common IaN. II HONever, the right against self-accusation \'las tempered by the criminal procedures of the day.

For instance,

refusal to plead resulted in either a verdict of guilty or the penalty of peine fort et dure. 41

(While this physical

torture ,,,"as abolished in 1772, 42 1 t was not until 1827 43 that standing mute \'las made a plea of not guilty.) not until 1848, that the accused

~I[as

It was

given the benefit of a

3B.

3 Ho\\I. St. Tr

39.

6 How. St. Tr. 951 (1670)

40.

Smith v. Read, 1 Atk. 526, 527 (1737). Also Bird v. Hard'. . icke.J 1 Vern. 109 (1682) same in Chancery.

41.

See 1 Stephen, History of Criminal Law at 297 ff (1833) See Major StrangeNay's Case, Morgan, op. cit. at 13 (pressing the accused over a sharp stake 1650) ,

0

42. 12 Geo. III 44 . 43. 728 Geo , IV.

1368 (1638)

44.

728 Geo, IV. 51

preliminary hearing where he could be before the witnesses against him and cross-examine them . 44 Torture-induced confessions l'Iere admissable throughout most of the 17th century.l.J.5 (Even Coke was amenable to this procedure. 46 )

By 1741 coerced

confessions seemed refutable,47 but the prohibition against self-incrimination Nas deemed to apply only to judicial proceedings and not pre-trial investigations.

III. It is by no means clear that the American Colonists received the doctrine of privilege early in our history. While it Nould seem strange that the colonists did not bring over the prevailing English doctrines, there is some controversy as to the extent of colonial privilege . Pittman 48 feels that the Massachusetts Body of Liberties of 1641 reveals a condemnation of forced confessions in regard to the privilege. Wigmor-e 49 felt the privilege remained an unkno,m doctrine in the New England Colonies for a whole generation after 1641.

He feelS it Nas "unrecog -

nized" until at least 1685 and that the colonists favored

44.

Sir John Jervis Act.

45.

Thomas Tonge I s Case 6 Hm". St. Tr. 225 (1662)

46.

See Morgan, 2£. cit., at 1~48. See White's Case 17 HON. St. Tr. 1003.

48 .

The Colonial and Constitutional History of the Privilege against self-incrimination in America) 21 Va. L. Rev. 763 (1935) . Q£. cit., at 269 .

49.

See also, Stephen, ~ . cit . at 216.

~_ _ _ _ _ _ _ _ _ _ 52 _ _ _ _ _ _ _ _ _ _ _ _. .

i the sanctions of the inquisitorial oath.

McCormick 50

believes that before the Puritan Revolution had passed in

1

England, the privilege \'las a cherished reality in Net.". England. Morgan Sl sees at least some realization of the privilege apparent in the witchcraft trials of 17th century Massachusetts. Whatever the actual extent of reception of the doctrine of privilege was prior to the American Revolution, it is clear that prior to adoption of the Constitution, some provision forbidding compulsion of a person to testify or give evidence against himself in criminal prosecutions Nas accepted in the various states. 52 ,

(Later United States v.

Have 53 held that in the absence of local legislation, the English precedents Nere regarded as applicable to the states.) Early Colonial statutes, recognizing the relation bet\'feen coercion, confession, and the privilege against self-incrimination, forbade torture in obtaining confessions. 54

After

passage of the Constitution, the Bill of Rights contained the Fifth Amendment providing that: 50.

McCormick, Evidence at 255 (1955).

51.

Q£. cit., at 19, 20.

52.

Seven states had constitutions to this effect. In others, e.g. Connectfcut, it Nas recognized but not made into statute until later. See Pittman, supra.

53.

2 Wheeler 283 (1818)

54.

Pittman, 2£. cit., at 779, 781.

53

(••I

r "No person shall be held to anSNer for capital, or otherl..,ise infamous crime, unless on presentment or indictment of a Grand Jury, . . . nor shall be compelled in any criminal case to be a \'1itness against himself . . ." The prohibition, so expressed, renders a claim of privilege in civil cases, which could not be made the basis of a criminal action, extremely doubtful.

[English prece-

dent is lacking because until the nineteenth century, at least, parties and interested persons ",ere disqualified as witnesses. 55 ]

In addition, the privilege against self-

incrimination may be waived, either fully or partially,56 The English rule is contrary to the American - no disclosure, however full, ''1ill effect a Naiver of the privilege and the accused may stop l'lhere he pleases, 57

In addition, Congress

has required and compelled lntnesses to testify in court and legislative hearings on certain matters, the privilege not Withstanding, upon granting of immunity from prosecution for such matter as has been produced,58

However, the issue of im-

munity raises strong doubts among many scholars, and in the Supreme Court, Douglas, J. sees some errors in such immunity statutes. 59 tI(l) One 'mischief' is not only the risk of conviction but the risk of prosecution . . . (2) The guarantee against self-incrimination contained in the Fifth Amendment is not only a

:~

II

.~

55.

See 2 Wigmore.J 2J2.., cit., at §575.

56.

57.

Reg. v. Garbett, 2 C&K 474, 495

58.

See Ullman v. United States, 350 U.S. 422 (1956)

59.

See dissent, Ullman, supra. 54

·1

I

protection against conviction and prosecution but a safeguard of conscience and human dignity and freedom of expression as well. My vieN is that the Framers put it beyond the power of Congress to anyone to confess his crimes . . . . The Framers, therefore, created the federally protected right of silence and decreed that the IaN could not be used to pry open one's lips and make him a Nitness against himself . . . (3) This right of silence, the right of the accused to stand mute serves another high purpose. . . . The Fifth Amendment Nas designed to protect the accused against infamy as well as prosecution. . . . II

IV Privileged communications are related to the doctrine of privilege against self-incrimination because, in effect, privileged communications are in a large measure admissions or confidences to one who stands in the place of the accused. as: 60

Confidential communications have been defined

II • • • classes of communications, passing bett'feen persons who stand in a confidential or fiduciary relation to each other (or Nho, on account of their relative situation, are under a special duty of secrecy and fidelity) J t'lh1ch the IaN will not permit to be divulged, or allow them to be enquired into in a court of justice, for the sake of public policy and the good order of society."

For a communication to be deemed privileged, four elements or fundamental conditions must be present. 61 "(1) The communication must originate in a confidence that they t'lill not be disclosed. 60.

Black's, cit. supra, note 4.

61.

8 Wigmore, ~. cit., §2285 55

u

-.

(2) The element of confidentialness must be essential to the full and satisfactory maintenance or-the relation betNeen the parties. (3) The relation must be one l'lhlch in the opinion of the community ought to be sedulously fostered. (4) The injury that t'lou1d inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation." Today, in both England and America, the common IaN rule is that no pledge of privacy nor oath of secrecy can obtain against the demand for the truth in a court of la,~.62 While the trials of the 17th century gave evidence that a bond of secrecy between "gentlemen" was not questioned on grounds of honor,63 by the end of the 18th century~ honor was not grounds for invoking the privilege. 64 There are at least five Situations 65 where a claim of privilege can shield a communication from the demands of

the court. In all these there are a great many qualifications. 66 The oldest privileged relationship is that between attorney and client. 67 However, the extent of the privilege 68 was hardly clear even into the latter part of the 19th century (nor \~s it universally favored).69

52.

Ibid, §2286 and notes 2-6 therein.

63.

Countess of Shrewsbury'S Case, 12 Co. Rep. 14 (1613)

64.

Duchess of Kingston's Case, 20 How. St. Tr. 586 (1776)

65.

Lawyer-client, husband-wife, jurors) state and official secrets, and phYSician-patient. There is another that is respected but sub rosa, priest-penitent.

66.

See 8 Wigmore) ~. cit., §§ 2311-2329, 2338-2341, 23542364, 2379, 2388-2391, 2394.

i ~

l

'I 67. 68. 69.

At least to Elizabeth. See Berd v. Lovelace, 21 Eng. Rep. 33 (1577). Greenough v. Gaskell, 39 Eng. Rep. 618 (1833). See also, Minet v. Morgan, 8 Ch~ 361 (1873) Bentham) Rationale of Judicial Evidence, 7 Works of Bentham, at 473-479-r1843) 56

The history of the privilege betNeen husband and \'life, ,..,hile seemingly evident earlier in the 17th century, 70 did not really corne to fruition until the end of the 19th century. 71

The principle applied to jurors, both petit and

grand, is based upon fairly obvious grounds. 72 The privilege extended to government ministers and official documents is actually made up of several distinct privileges.

There is an executive privilege 73 (varying in

the United States 74 and Great Brltain 75 ) which is akin to the one extended to ministers of state 76 and foreign envoys.

It

has been extended further to cover state secretsJ7 government informers,78 and official documents. 79

70.

Lady IyY's Trial, 10 HON. St. Tr. 555 (1684).

71.

Ibid., at § 2333. A distinction between testifying for or against one's spouse \'1a.S not clear even then. (This criticism has even been applied to our own courts today.)

72.

See 8 Wigmore,

73.

Ibid., at

74.

See Marshall, C.J., in United States v. Burr, I Robt. Rep. 186 (1807).

75.

Id.: The Court distinguishes bet\'leen role of King in England and the President of the United States finding that it would be correct to subpoena the latter though not the former. Also, Baccarat Case, 8 Wigmore, £P. cit., 749.

76.

Dubois' Case, 1 Whart., Dig. of Int. Law., 668 (1856)

77.

Totten v. United States, 92 U. S. 105 (1875). Espionage.

78.

See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons and Agents Provocateurs, 60 Yale L. J. 1091 (1951). United States v. Burr, cit. supra. Unlike the United States, England allONS the head of the department concerned to determine whether a document should be shielded by a claim of privilege. See Duncan v. Cammel Laird and Co., A. c. 624, 1 All Eng. 587 (1942).

79.

~.

cit.,

§§ 2346, 2360-2362.

§ 2367.

The physician-patient privilege has no common law basis 80 and could be overcome upon the demand of the court. 8l However, about two thirds of the states have created a privilege around the communications of the doctor and his patient. 82 Generally, communications made in the confessional are not privileged at common la\
The

word itself has so many meanings that it is actually meaningless.

In itself, a right connotate-d as a privilege, is no

more a guarantee of individual protection than the latest public policy of the legal and social system of the AngloAmerican tradition desires lt to be.

80.

Duchess of Kingston's Case, 20 How. St. Tr. 355 (1776)

81.

8 Wigmore, 2£. clt., at § 2380

82.

Id.

83.

Wilson v. Rastall, 100 Eng. Rep. 1283 (1782)

84.

Garnett's Case, 2 HON. St. Tr. 218 (1606). But this may not glbe \'11 th De Artlcull.s CIeri, supra.

85.

See 1 Catholic Lawyer 199 (1955) and 2 Catholic Lawyer 3 (1956). Privileged Communications to Clergyman.

58

C.

Defamation

Defamation Nas constructed of two major, mutually influenced, elements -- criminal libel and slander and the civil remedYJ the twin torts of libel and slander. l

In both forms,

defamation is an invasion of the interest in reputation and necessarily involves the opinions of others in the community. As it has developed, the tort of defamation renders only incidental recovery for injuries to one's o\oJn feelings of humiliation, sorroN, or wrath.

It is the essence of the common

IaN action that reputation, not private right is. protected -one's public face not one's personal estimation of himself is the source and measure of judicial recovery.2 This memorandum will discuss: 3 I.

THE SOURCES OF THE LAW OF DEFAMATION

II.

THE ROLE OF STAR CHAMBER

III. THE COMMON LAW DEVELOPMENT UNTIL THE COMMONWEALTH IV.

THE DEVELOPMENT FROM THE COMMONWEALTH

UNTIL MID-NINETEENTH CENTURY.

1.

The roots of remedy for defamation go back to several sources including Anglo-Saxon folk law. 4

As Holdsworth has

said: 5 1.

Prosser, LaN of Torts, 2nd ed., at 572, 1955.

2.

Id.

Alsoj Donnelly, History of Defamation, 1949 Wisc. 99

1"194 9) .

3.

Caveat: There is so much controversy over this field of laN that this memorandum has no intention of being definitive -- it is merely a rough outline of the development of the lat'l.

4.

HoldsNorth, Defamation in the Sixteenth and Seventeenth Centuries, 40 LaN Q. Rev. 303-4 (1924).

5.

Ibid.

59

· . . But the provisions of the Anglo Saxon laws on this matter have no continuous history, and the jurisdiction of the manorial and other local Courts decayed. Unless the defamation t'Jas of a sort Nhich came \'Jithin the statutes Nhich created the offence of scandalum magnatum, the medieval common law gave no remedy. For all other defamations the suitor was obliged to go to the Ecclesiastical Courts. It was not till the beginning of the sixteenth century that the Common Lat" Courts began to compete l"i th the Ecclesiastical Courts in their field of jurisdiction by allowigg an action on the case for defamation. , . ,

l

This defamation has its roots in Germanic folk law, Roman Law, and

1I

Bubsequently~

in an admixture

of

case decisions

in the sixteenth and early seventeenth centuries common law and Star Chamber proceedings.

Ascribing what features of the

present development arose from the various sources Nould hardly be practical, but some outline of early development might serve to clarify what is otherwise a very difficult branch of the law. The pre-Norman system consisted of recovery in money damages (or more severe penalties if such damages were not payed) for an assault on reputation. 7

The local or manorial

courts in the middle ages also recognized a right to reputation (the purpose of the suit often being vindication as well as recovery of damages) ,8

It is not certain Nhen the remedies

afforded by such local courts lapsed, Dr were no longer sought. 6.

See Donnelly, 1949 Wisc. L. Rev. 100-103, for defamation in local courts. Also, Van Vechten Veeder, 3 Col. L. Rev. 550 ~. ~. (1903); Prosser J QE.. oi t. at 573.

7.

Donnelly,~.

8.

Id., at '102-103.

cit. at 100.

60

The Crolffi also had an interest in the field of defamation in the middle ages.

This was principally in the

area of supression of disparagement of the Crown and the high secular and clerical offices.

In 1275, the statute

De Scandalis Magnatum J 3 Edward I, C. 341; \'1as issued.

It decreed

tha t i t ,,,as criminal to utter or repeat scandalous s ta tements or rhymes about or concerning the notables of the rea1m. 9 From the Roman LaN came an important theory that

Nas subsequently adopted by the star Chamber in its suppression of the press and printing.

The Roman Law had two actions:

in.1uria, for minor personal injuries and carrying a money recovery; and, the libelli famosi, the criminal proceeding to suppress scurrilous tracts. lO The distinction between the th'O was on the basis of publication (the character of the matter, the extent of diffusion, and its anonymous nature) and this determined whether the more serious libelli famosi proceeding was used. 11

A key vehicle in the introduction of the law of defamation into the common law was the Ecclesiastical Courts. Defamation was punished as a sin by these courts. attempted to create a monopoly over spiritual life.

9.

They Sexual

Subsequently amended by 2 Richard II) C. 5 and 12 Richard II, C. 11 to specify which notables were so protected. These statutes h'ere little used civilly (the last recorded case in 1710)j their principle use was suppressing the Lollard movement. See Veeder, 3 Col. L. Rev. at 553 (1903).

10.

VeederJ~'

11.

Holdsworth,2.£.. cit. 40 LaN ct. Rev.

cit. at 564. (192L~)

at 305.

61 I

morality, usury, perjury and defamation (contumelious ''lOrds) came under the title of injuria (from the Roman LaN) .12

It

was partly through the struggle over jurisdiction between the Common La\V' Courts and the Ecclesiastical Courts that the framework of the law of defamation developed.

The attempted

monopoly asserted by the Ecclesiastical Courts \V'as challenged successfully by the Common Law Courts, but not before the Church had l'Jon many battles throughout the middle ages .13 'I

After the early seventeenth century, the Ecclesiastical Court's

'i

power became limited.

I

Even before the Commom~ealth it had received its death-blow, and 13 Charles II c. 12, s. 4, removed the possibility of its convalescence. 16 Charles I, c. 4, the same statute as that which abolished the Court of High Commission, took away the oath ex officio: . . . From this time henceforth the jurisdiction survived in theory \'o)i thout any adequate means of enforcing it, but it was at 1ast1~bolished in theory by 18 i 19 Vic. c. 41 . . . . Thus from these sources the law of defamation had its roots.

Its development carne through

tl~O

channels -- the star

Chamber and the Common Law Courts.

II.

By the reign of Elizabeth I, the star Chamber and Council had assumed a strict control over the press and in so 1.2.

Veeder,

13.

Donnelly, ~ cit., at 105. The statute Circumspecte Agatis (12~5) and Articuli CIeri (1295); but see 1 Edward III C. 11 limiting them. There seems to have been a recurrent battle between the issue of prohibition and the answer of excommunication.

14.

Carr, History of Defamation, 18 Law Q. Rev. 269-70 (1902).

~.

cit. at 550.

62

';1 ' ~

;

'J '!

doing created legal precedents in the field of defamation. Control of printing and state security involved the recall of Scandalum Magnatum. 15

HoldsNorth states: 16

Naturally the Star Chamber assumed jurisdiction in all cases in which its rules on this matter has been infringed; and this led it to regard defamation as crime. BorroNing perhaps from the Roman Law as to Libella Famosa, it treated libels both upon officials and private persons as crimes. The former were seditious libels and directly affected the security of the Statej and the latter obviously led to breaches of the peace. 17 The Star Chamber closely regulated printing throughout the reigns of James I and Charles 1. 18

Holdsworth believes

it is the criminal nature of the Star Chamber proceeding on printing that serves as the distinction between written and spoken defamation.

Libel as distinct from slander came to

be regarded as injurious

~

se because it developed from

criminal libel punished by the Star Chamber Nhich had control over printing. 19

Similarly, Veeder sees that the criminal

nature of Star Chamber proceedings introduced the idea that

15.

Holdsworth 2.£.. cit. 40 Law. Q. Rev. at 305 (1924).

16.

Id.

17.

Veeder,2.£.. cit. at 562. In the attempt to prevent breaches of the peace, seditious tracts had to be crushed. There were three principal means of supervision over the press. 1. Church prohibition and indices; 2. Patents and monopolies on printing; 3. Suppression by Star Chamber acting as a court of criminal equity.

18.

Veeder,2.£.. cit. at 568.

19.

Holdsworth, op. cit., 41 LaN Q. Rev. 14-16 (1925).

See ordinance of 1637.

63

I

justification could be no defense in criminal libel cases. The Star Chamber, then, having taken over jurisdiction of libel with particular reference to discussion of affairs of Church and State, the idea that such libels were crimes and as such past justification, was formerly introduced in English IaN; a tribunal of Nhich common IaN judges Nere constituent members, drew a real distinction between spoken and written defamation of a political kind. 20 The crime of defamation against the government could be committed by publishing or speaking either seditious, blasphemous, or obscene words or words t'lhich directly led or could lead to a breach of the peace.

Since the danger to be

avoided was deemed to be a breach of the peace and treason, the essence of the crime became the publishing of the matter. Further, since the Star Chamber used no jury, a precedent was established for restricting the use of juries in common law libel proceedings. 2l In De Libellis Farnosis, 5 Co. Rep. 125a (1609), Coke probably

enunciated his

when libel was a crime.

O\ffi

theory of libel at a time

Because such libels encourage

breaches of the peace and "scandal of government", the proper remedy is that: . . . a libeller shall be punished by indictment at the common law, or by bill, if he deny it, or ore tenus on his confession 'in the Star Chamber, and according to the quality of the offense he may be punished by fine or imprisonment, and if the case be exhorbitant, by pillory and loss of his ears, . 20.

Veeder, Q£. cit. at 567-8.

21.

The development of this theory and its ultimate reversal will be discussed infra.

64

, This star Chamber case is the great precedent for the criminal nature of libel and it is clear that if Coke

sa1~

the

dangers and approved the Star Chamber's remedy, the Star Chamber's influence on the common la\'J tradition \'Jas important. The legacy of the Star Chamber (although the extent of its influence cannot be precisely drat<Jn), is described by Donnelly in the following: The chief differences between the laN of libel as developed in the Star Chamber and the law as applied in a common IaN action on the case for words were: (1) Truth was not a defense in the Star Chamber unless the 1'Jords were spoken; (2) publication to a third person was necessary; and (3) the fac t that the person libelled \vas dea~2 did not bar a prosecution in the Star Chember.

III.

The development of defamation as a tort coincides, generally, with an attack upon ecclesiastical jurisdiction, and in a someNhat broader sense., the gro\lJing strength of a popular challenge to prerogative.

Although the law of

defamation had a great part to play in the eighteenth and nineteenth centuries in freeing the press from the rigors of censorship; the sixteenth and seventeenth centuries found in defamation actions a remedy for wrongs in that the Ecclesiastical Courts \I/ere inadequate, as well as, a means to enforce censorship and keep the peace. 22.

QR. cit. at 119.

Also case£ cited notes p. 119.

65

1 The Common LaN Courts acquired jurisdiction over cases of defamation at the expense of the Church.

The clash

of jurisdiction bet\'/een ecclesiastical and Common La\'/ \'las fought on the basis of remedies (money damages against contrition), resentment against the tyranny and corruption of the Ecclesiastical Courts (use of paid

informers~

etc.) and the

plain aggressiveness of the Common La"" Courts in seeking to expand their jurisdiction. 23 Coke's test for the jurisdictional struggle is stated in Palmer and Thorpe. 24 Touching defamations determinable in the Ecclesiastical Court, it was resolved that such defamation ought to have three incidents: 1. That it concerns matter merely spiritual and determinable in the Ecclesiastical Court, as for calling him Iheretic, schismatic, adulterer, fornicator, etc. I 2. It ought concern matter merely spiritual only; for if such defamation touches or concerns anything determinable at the common la'~J the Ecclesiastical Judge shall not have cognizance of it. 3. Although such defamation is merely spiritual and only spiritual; yet he who is defamed cannot sue there for amends or damages, but the suit ought to be only for the punishment of the sin, pro salute animae. While this seems to create a broad area for ecclesiastical authority, the Common LaN Courts took it upon themsel ves to determine what matter Nas IImerely spiri tual" and made use of the Nrit of prohibition quite freely.25 23.

See Donnelly; ~. cit. at 110. It is about this time that Court of Admiralty is also being limited.

24.

4 Co. Rep. 20aj Inst. 492 (1583).

25.

Donnelly;~.

cit. at 110.

66

In Davies v. Gardiner 4 Co. Rep. l6a (1593), Coke reports that the court had and thenceforth would take cognizance of offenses, which while spiritual in nature, were a temporal

\~ong accruing special damages. 26 Together with the success over the Ecclesiastical Courts, the Common laN Courts became almost overNhelmed by civil defamation actions in the early seventeenth century. As a result of this development, the Common LaN Courts sought to limit the number of actions.

Coke, himself demonstrated

his prejudice against the number of these suits in Crofts v. Brown, 3 Bul strode 167: We will not give more favor unto actions upon the case for words than of necessity we ought to, where words are not apparently scandalous, these actions being now too frequent. The Common

La\
Courts after \'-'inning the juris-

dictional fight with the Court Christian, then \'lent about limiting the number of actions that would be heard.

They

used three primary methods to discourage defamation actions! (1) mitor1 sensu, construing language by any process of scholastic ingenuity into a meaning of harmless insignificance;27 (2) restricting special damages to money lo~s only;28 and (3) 26.

Here a claim against a Noman of incontinence caused her to lose her marriage. While the charge of incontinence was a so called spiritual crime, the loss of marriage causeda monetary loss and so actionable.

27.

Veeder,~.

28.

Donnelly, 2£. cit., at 114.

cit., at 558.

67

I

limiting a cause of action as to persons liable for repitition of a slander. 29

Other means of discouraging civil suits \'1ere

by requiring publication to be to third parties,3 0 allowing truth to be a defense,3 1 decreeing that the cause died with person,3 2 and requiring the plaintiff to meet a strict test of pleading by use of the IICOllOjium".33

In addition to

these means of limiting the number of suits based upon words giving rise to actions on the case, the Common LaN Courts in the seventeenth century also developed the rules of Nords slanderous

per~.

These gave rise to action for nominal

damages even without proof of special damages.

"

categories contrived were:

The

. (1) imputations of a

crime; (2) imputation of certain loathsome diseases; and (3) imputations affecting the plaintiff in his business,

trade, profession or office

1,

i ·1

,,34

Whatever the source of

29.

See Coke's sanction of this policy in Earl of Northhampton's Case, 12 Co. Rep. 134 (1593).

30.

Edwards v. Wooten, 12 Co. Rep. 35 (1607).

31.

Lord Cromwell's Case 4 Co. Rep. 12b, 13b, 14a (1578-1581).

32.

Donnelly 2£. cit. at 115.

33.

rd.

34.

While these categories \'lere developed -- how and Nhy they Nere'developed is still a subject of controversy. Holds\vorth feels that the element of damages may be the key -- see Holdsworth, 2£. cit., 41 La\'l Q. Rev. at 16. Green, Slander and Libel, 6 Am. L. Rev. 40 (1872), felt that the distinction arose from the idea of crime associated with libel. Donnelly,2£... cit. at 111, n. 71, scoffs at Green's theory. A contemporary tract; March, Actions on Slander (1647) says the criminal aspect determines the \'lords that became slanderous per se.

68

., the distinction of words deemed slanderous

~

se and other

imputations satisfying the action on the case for defamation, it became firmly established in the seventeenth century that a distinction existed betNeen Nritten and spoken defamation. Further~

not all defamatory statements gave rise to an action.

(This is especially true of defamatory statements made of or to \vornen.) 35

These anomalies can best be understood \lJhen

it is realized that judicial decisions are narrowly determined on given facts and on a policy of expediency.

IV. The development of the crime and tort of defamation continued on the basis of the precedents established by Star Chamber and the Common La\", Courts.came interwoven.

Censorship and libel be-

The decision in R. v. Carr J 7 Ho\'L st. Tr.

1114 (1680) by Scrogg, C. J., decreed that juries can only decide the issue of publication and could not hand down a general verdict.

The libellous nature of the writing Nas

deemed solely within the province of the judge's findings on law.

This case is, therefore in direct dissent of

De Libellis Famosis, supra, reported by Coke seventy-one years earlier.

(It \<Jould not be until long after in Entick

v. Carrington, 19 HON. St. Tr. 1070 (1765), that this doctrine 1ms finally judicially overthrown by Lord Camden.) Parliament did not act until Fox's Libel Act, 32 George III, C. 60,

35.

See March, ~. cit. at 45. Such anomalties as an imputation of small pox Nere not actionable Nhile leprosy was. This difference can only be explained eithe ei ther in terms of deficiency in medical knOll/ledge or on a theory that slanderous per se refers to allegations tlJhlch \Vere chargeable as crimes.

69

granted juries the authorization to determine the issues in libel actions and to hand dOlm a general verdict. 36 It has been seen that the star Chamber regulated printing.

Although the Star Chamber Nas abolished in 1640,

Veeder maintains that the la\1J remained unchanged in the field of censorshiP.37

After the Restoration, licensing of printing

'l'las done by statute. 38 In the latter part of the seventeenth century, the distinction between libel and slander becomes fixed on the form of publication.

King v. Lake, Hardres 470 (1670) held

tha t the written word

II.

had been once spoken . .

•

•

." .

contains more malice than if they This \'las folloNed in the

eighteenth century by Harman v. Delaney, Fitzgibbon at 245 (1731) and Villers v. Monsley, 2 Wils. 403 (1769).

The rule

came to be fixed in the landmark decision of Thorley v. Kerry, 4 Taut. at 365 (1812).

(Mansfield, C. J., wished to

drop the distinction based upon the mere form of publication, but had to admit that the IaN was too settled to be modified.) After the decline of the Ecclesiastical Courts, imputations upon the character of Nomen were not punishable 36.

Towers, Jr., Observations On The Rights And Privileges Of Juries In Trials For Libels; Dublin (1785) contains a contemporary demand for full revieN by juries in criminal libel proceedings. See p. 3-10. Also see Lord Campbell's Act.

37.

Veeder,~.

38.

13 & 14 Car. II, C. 33; amended, in 1679. 1 Jac. II, C. 17, S. 15, which lapsed in 1695. See Holdsworth, 2.£. cit. 40 laN Q. Rev. at 314, for use of juries.

cit. 3 Col. L. Rev. at 568.

70

except if special damages could be proved. Holt 4, 6 Mod. Rep. 104 (1704).

Ogden v. Turner,

Lord Campbell commented upon

the unsatisfactory state of the law of slander concerning \'1omen in Lynch v. Knight, 9 H. L. Cas. 577, 593 (1861). Parliament finally came around to remedying the situation in the Slander of Women Act in 1891. 39

The development of the

two major defenses to the action on defamation--truth and privilege--developed differently.

Holdsworth maintains that

truth was always a defense to libel as a tort (not so for criminal libel tried in the Star Chamber) .40

However, it

was early held that truth must be absolute for the defense of justification. 4l Veeder states at 44:42 . . . whatever may have been the semblance of justification for this interpolation (denial of justification in criminal actions) at the time it was made, as a principle of IaN in a settled and civilized community it is plainly irrational and unscientific. This was clearly demonstrated by Brougham, Campbell, and others during the long struggle in England over the right to prove truth in Evidence. (material in parens added)

,. ;

,j

He goes on at 46: Not until 1843 ( 6 & 7 Vict., C. 96) Nas the English law changed by statute so as to allow a private individual to prove the truth on a 39.

54 & 55 Vict., C. 51.

40.

QQ. cit., 41 Law Q. Rev. at 28. 3 Col. L. Rev. at 568.

41.

Johns v. Gitling, Cro. Eliz. 239 (1590). De Libellis Famosis, supra, laid down the rule in criminal proceedings that truth could be no defense.

42.

Veeder, 2.£. cit., 4 Col. L. Rev. 33 (1904).

Also Veeder 2.£. cit.

71 :1

'

prosecution for criminal libel, provided it ,,-,as for the public benefit that the charge should have been published. (citation added) Privilege also developed slowly.

Holdsworth says;

During the seventeenth century, the IaN as to privilege was meagre; and the modern distinction n~tNeen absolute and qualified privilege had not arisen. ~ In Floyd v. Barker, 12 Co. Rep. 23 (1608), judicial immunity for all actions in a judicial capacity Nas established. This Nas extended to papers circulated in committees in Commons by Lake v. King, 1 Wms. Saunders 131 (1668) but l -imited in R. v. Salisbury 1 Ld. Raym. 341 (1699) to deny judicial or parliamentary privilege to those ''-'ho published the documents

.!

to the world at large. Qualified Privilege arose in the late sixteenth or early seventeenth century.

Blackstone's views Nere the same

as those expressed in the time of Elizabeth I.

It \lias not

until the nineteenth century that the modern notion of qualified privilege came into being. 44 Only one element of defamation--mallce--need yet be discussed.

The requirement that the defamation be maliciously

intended Nas deemed unnecessary (R. v. Carr, supra), to find a criminal libel.

It \'las a common pleading element earlier in

the sixteenth century in actions for slander of title. 45 Green maintains that Coke Nas one of the principal authors of implied malice (presumed defamatory intent derived from the

43.

41 LaN

44.

Holdsworth, 2E.. cit. , 41 La \'1 Q. Rev. at 30.

45.

Holdsworth,

Q. Rev. at 28.

QQ.

cit . .J 40 Law Q. Rev. at 40.

72 s

-j 1

mere fact of publishing).46

Holdsworth's view is that as the

'!,

conception of crotm and subject changed, the contention Nas made that malicious intent Nas the essence of the criminal libel. 47

The latter vieW' became current. In conclusion, it may be stated that while the law

of defamation developed as a right of protection to reputation, its various phases in the criminal and civil law gave it a strange twist.

Developed as a safeguard to prevent breaches

of peace, it does not give a remedy in the face to face encounter most conducive to violence.

Further, reputation will

always be protected when attacked in writing, but not necessarily so when attached verbally from a speaker's platform.

As it has developed it provides neither the freedom

of speech nor the right of personal privacy.

III.

THE VICTORIAN CONCEPT OF PRIVACY Whatever the limitations and hesitancies of the

common la\v l<1i th regard to rights of privacy, the Victorians J fortified by the Nonconformist doctrine of freedom of conscience by the Benthamite utilitarian arguments for individual liberty by a profound faith in the sanctity of private property and by the strongly cohesive

nature of middle class

family life, were extremely emphatic in asserting the rights of privacy.

The first half of the nineteerith century was

~

I :I

,j

the hey-day of popular enthusiasm for the rights of privacy. But the rather complacent Victorian pronouncements on this

46.

Green,~.

cit., 6 Am. L. Rev. at 610.

t

47.

Citing R. v. Francklin, 17 S.T. at 671-2 (1731). 73

j

subject encountered increasing opposition to the inviolable rights of privacy.

This stemmed partly from the need to

control individual action to serve common welfare in an industrialized society, and partly from the intrusion upon individual freedom of action by the influential spokesmen of mass culture.

'*

*

'*

"They are proud and private

II

1

remarked Ralph

Waldo Emerson, distilling his impressions of the English character into ,."ords.

"They wish neither to command nor to

obey but to be kings in their own houses. 1I2

That he regarded

this as a practical rather than an ideological attitude, may be judged by his subsequent comment thatj liThe rights of property nothing but felony and treason can override. house is a castle \'Jhich the king cannot enter, a strongbox to which the king has no key. 1f 3

The

The Bank is

Emerson was a

wide-eyed and none too perceptive observer but his comments do indicate the prominence of two important strains in English life and thought in the first half of the Victorian period.

The first is the concept of privacy, the second

the connection of the idea of privacy with the enjoyment of property--and both are entangled in the prevailing view of liberty. 1.

Ralph Waldo Emerson, English Traits, "Character, (Vol. V, Emersonls Complete Works) Boston: Houghton, Mifflin and Co., 1894) p. 125.

2.

Ibid., p. 138.

3.

Emerson, QE.. cit., I1Wealth," p. 159.

74

I

1 Privacy--what did that word mean to the Victorians? The most obvious conclusion is that it did not always mean the same thing; ""hile a closer study suggests that there was at least one major shift, if not in meaning at least in emphasis, during this period.

Certainly the intimate con-

neetion of privacy with property which seems characteristic of its opening years, calls up a rather different cluster of ideas than does the concern with personal privacy which begins to emerge at its close. In the seventeenth century Coke had thundered that, lithe house of everyone is to him as his castle and fortress, as Nell for his defense against injury and violence, as for his repose. .

By

1856 when Emerson was writing, many

of the images remained but their content and underlying assumptions had changed. right.

A negative had become a positive

It was no longer a matter of not being assaulted or

subjected to arbitrary searches and inquisitions.

It Nas

now the right to enjoy something, to have free and unrestricted use of something--and that something was property. motive and end of their trade and empire,1I

liThe

Emerson wrote,

Ills to guard the independence of their homes . uS

He could

just as accurately have reversed the statement. It is this joint concern with privacy and property ,."hieh emerges in the controversy over "centralization."

In

4.

Sir Edward Coke, Semayne's Case, English Reports--Full Reprint Kings Bench, Book 6, Coke Parts 5-13 (ed. Max A. Robertson and Geoffrey Ellis, London: Stevens and Sons, Ltd., 1907) p. 195.

5.

Emerson, 2.P... cit.

J

"Manners," p. 107.

75

"

newspapers and periodicals in salons and clubs, and of course in Parliament, the debate raged.

The terms vary slightly but

the concept Nhich underpins them is clear.

"

. I protest,

1\

hTote a manufacturer Nith regard to a proposed piece of factory legislation in 1832,

"against this threatened invasion of the

rights of the parent over the child, as an infringement of the liberty of the subject, and a direct violation of the homes of Englishmen. 116 Prior to 1867-70, the issue of centeralization \lias an important one.

It threads through many of the Parliamentary

debates and even dominates several of them. the anti-cent'ralizers

ShONS

An examination of

a diffuse and diverse group, dis-

-united even in their opposition.

Nevertheless, it suggests

t'lhat some Englishmen 1'Iere thinking about private liberty and it ShOl"S hot. . that concept changed. A brief survey of factory legislation is instructive. It illustrates the feeling and trend of thought which also shoNed itself in passionate struggles over the poor IaN, sanitary legislation and education.

It is significant in

this regard, that the earliest factory act antedates the Victorian period by more than three decades. Passed in 1802, the first factory act was deSigned to protect pauper apprentices in the cotton and woolen industries and Nas closer in tone and conception to the old poor IaN than to later legislation of the Benthamite stamp.

I '

.: I

I

II

6.

Maurice Walton Thomas, The Early Factory Legislation (London: The Thames Bank Publishing Co., Ltd., 1948) p. 32.

76

'I

It proved to be of little practical importance since it was passed at a time ''>'hen the use of such apprentices was declining.

But it was cited as a precedent, when the elder

Peel first attempted to regulate the labor of free children. Peel's Act of 1819 did in fact enunciate a new principle, asserting the right of the government to interpose itself bet\,>,een master and free worker.

It is true that it applied

only when the worker was a child under the age of sixteen, but once established the principle proved capable of infinite variation and extension.

By 1833, Inspection had been

introduced ,,>,ith all its implications of administration and enforcement.

Sanitary and educational provisions were

gradually added.

After 1850, it was possible to see the

process as one of applying established principles to wider and wider areas of industry. Nor Nas factory legislation a singular example. On all fronts the engines of centralization rolled forward and the area of Nhat Nas inviolable and private to the individual Nas diminished, in contrast to Nhat Nas public and therefore the proper object of government intervention. The middle years of the century sal'.' a mining inspection act

(1850), a merchant shipping act (1850), a burial grounds act (1850), an act to regulate the London lodging houses (1851), an act for smoke abatement in London (1853), an act for juvenile reformatories (1854), an act establishing a permanent

iI ,! i

i

charity commission (1854), as well as other legislation

77

'I

pertaining to education, public health and factories. 7

The

list could easily be made longer. It has been claimed that the issue of centralization entered English politics with the new poor law of 1834. 8

To

say this J is to misunderstand the nature of the issue and of the opposition to centralization itself.

Resistance to over-

\'leening and intrusive intervention by central government in areas deemed private to the lndividual--plainly goes back into the seventeenth century.

With the gradual transformation

of government (and after 1833J its even more gradual increase in efficiency), the areas of interference changed.

Yet the

sentiment which animated the oPPosition remained much the same.

By 1815, this opposition Nas already hardening into

a coherent pattern and themes were being sounded which would recur again and again} \'Jell into the 1860s. But did "centralization" really have anyting to do Nith privacy?

A glance at the arguments and protests

advanced by the anti-centralizers suggests that it did.

In

certain respects, the pattern of protest indicates remarkable unanimity.

Tn almost every case the legislation is condemned

because it tampers \'lith a relationship hitherto considered personal and private.

This may be between parent and child,

or master and man} or perhaps seller and buyer.

The

legislation is also found objectionable because it interferes 7.

David Roberts, Victorian Origins of the British Welfare State (NeN Haven: Yale University Press, 1960) pp. 87-88.

8.

Roberts, 2£. cit., p. 67.

78

I

with the freedom of the individual to act or not to act in a particular way which he chooses, a freedom which supposedly has belonged to him in the past.

A worker is no longer to

strike or the master to extract the best bargain that he can. A man may not decide whether or not he wishes to install drains in his house, and so on.

These objections rarely

occur alone, but they are offered in conjunction with others in a surprising number of instances. The anti-centralizers \'lhatever else they believed, seem to have been convinced that there were large areas of life which \<Jere private and therefore inviolable by the central government.

The duties of the State lay in keeping

order, in administering justice and in providing external defense.

An article Nhich appeared in The Economist--Weekly

Commercial Times in 1850, was representative of a vie\1/ that was very tl[idely held. Nobody, "'e preswne, now doubts that the relation of employer and employed--leader and follO\lJer-the relation between superior intelligence in one, and manual dexterity in the other--is a natural relation, not the result of statute law, or mere custom; and being a natural relation, should be permitted to develop itself like the division of labour, of which it is one part, fully and perfectly, without interruption or interference. To us, it seems one of those many relations connected with individual property, continually growing from it, and developing themselves in the progress of society Which all Governments are established to defend. In our judgment, then, a far more sacred principle is at stake in all such regulations, than the gratification of the whims of philanthropists and the llJishes of workmen-the rights of property.9

9.

IlLegal Decision on the Factory Act, II The Economist-Weekly Commercial Times (London), Vol. VlrI, No. 338 (Feb. 16, 1850), p. 171.

79

Although there Nas a measure of agreement in their points of view, it Nould be an error to think of the anticentralizers as an organized or even unified group.

Many

individuals and groups shared a dislike of centralization but disagreed violently on other issues.

Almost the same

things might have been said of their opponents the centralizers--with one significant exception. In many respects centralization represented less a carefully thought-out program than a mood, an approach, a cast of mind.

The early and mid-Victorian rage for improve-

ment and progress, the burgeoning impulses of humanitarianism and the social gospel could lead to a demand for, or at least an acquiescence to, government intervention.

So too could a

simple desire for efficiency and businesslike methods.

For

their efforts, diverse liberals, reformers and evangelicals were labeled centralizers.

Of them all, the one group Nhich

by its philospphy and conscious policy most deserved the appellation, was probably the Benthamites. Jeremy Bentham had died in 1932 but the force of Benthemism \'1as vi tal, pervasive J protean.

It informed and

sometimes dominated men and movements which Nere not necessarily sympathetic to its ends.

Bentham had not

originated the principles of the Utilitarian philosophy but he had dra\ffi together many diverse strands of thought to form a science of morals. IO 10.

Utility was the touchstone, the

Elie Halevy, The Growth of Philoso hic Radicalism (trans. Mary Morris, Boston: The Beacon Press, 1955 p. 15.

80

-, "

j

!,. means of testing laNs, legislation, any human activity.

That

Nhlch promoted human happiness \'Jas good, that Nhich diminished it was bad and to promote the greatest happiness for the greatest number Nas the duty of government. Was Bentham the ·apostle of laissez faire or of collectivism?

One scholar has referred to him as, lithe

archetype of British collectivism, II pointing out that laissez faire is based on a natural and utilitarianism on an artificial harmonization of interests, according to the greatest happiness principle. ll

Certainly in its applications and

influence, the utilitarian philosophy had a distinctly authoritarian cast. But its contribution Nas as much one of method as of principle.

Centralized authority, inspection at the local

level) reports on which scientific legislation could be based, all Nere implicit in its system.

If the Benthamites could

muster feN votes in Parliament they Nere still important. With their expertise and knmdedge of The Method, they could dominate Boards, Commissions and Committees to an extent far out of proportion to their actual strength.

Benthamism then,

not only provided a convenient justification for State intervention, but furnished the means by which such intervention could be made effective. Sometimes Benthamism

\'1a8

allied with other forces

and movements, or \ms used by them. of these forces in its 11.

Olm

interests.

Sometimes it made lise Laissez faire for

John Bartlett Brebner, "Laissez Falre and State Intervention in Nineteenth century Britain,tI The Journal of Economic HlstorYJ Supplement VIII, 1948, p. 61. 81

,

example, was a convenient rallying cry against restrictions which could not meet its standards of utility.

Yet no matter under

l'lhose aegis it Nas introduced, no matter whether it Nas principle or simply method, the influence of Benthamism was in the direction of control.

It meant increasing intrusion by govern-

ment and the consequent diminution of the whole area of personal privacy.

As early as 1847 in introducing the Health of

Towns Bill, Lord Morpeth could claim: In such a state of things as I think I have proved to exist, I will take it at once as admitted, and will not , therefore be so idle as to argue that the State has right to interfere. I know this, there are many . . . ,ilio think that the State has no right to ,interfere in matters of education -- in what concerns the domain of the mind; but in matters which concern the health and life of large masses of our population . . . in the case of evils which cannot be remedied otherwise than by some superintending, intervening, central authority -- it would, I think, be a waste of words to attempt to prove that authority not only has a right, but that it is its duty to interfere. 12 To many contemporaries the issue, whether in regard to factory legislation, sanitary legislation or education, was clearly draNn and the threat Nas plain.

Colonel Sibthrope, the

Member for Lincoln, ''Jas probably not alone in his sentiments iI/hen he assured Lord Morpe th tha t he personally, lien tertained the very gravest objection to this Bill."

If passed, "it

would confer a very dangerous power upon Government, and would most um'larrantably interfere \'lith private and corporate rights." 13

Mr. Hudson, rising amid impatient cries of "Divide,

12.

Hansard, XCI (1847), 623-624.

13.

Hansard, XCIII (1847), 1093.

82

divide!1I informed the minister that the Bill tended too much tOlllard centralization and that: . . . The country Nas sick of centralization, of commis sions, of preliminary inquiries -- of all sorts of jobs , The people ""anted to be left to manage their mm affairs; they did not want Parliament to be so paternal as it wished to be interfering in everybody's business, and, like all ''Jho so interfered, not doing its ONn well. 14 The battle Nas not confined to Parliament.

It re-

sounded in newspapers and pamphlets intended for general circulation.

An 1855 publication by Harriet Martineau entitled, liThe

Factory Controversy

a Narning against Meddling Legls1ation,1I

compared resistance to factory legislation, to opposition to ship-money.

Recalling past attempts by government to tax

food costs, or modes of dressj remembering the, Itexcise intrusion and custom-house tyranny, present~

It

she ''larned:

1tYet, in this very

so free, and so convenient in its freedom, there has

been an advancing encroachment on the liberty of the citizen, aggravated since the t'lar began to an intolerable degree. . . Inspection was a particularly sore point.

1115

Between ef-

ficient inquiry and officious snooping might be only a difference in points of view.

In 1856 an article on tlMedical Despotism" in

the Westminster Review, remarked \'lith some asperity: Indeed we are taken care of at every turn: our houses are 'inspected I before ''Ie may inhabit themj our ships are 'inspected' before 'I[e may emigrate in them; our factories and our schools are under the governmental

14.

Hansard, XCIII (1847), 748.

15.

Harriet Martineau, The Factory controversy -- a 'I[arning against Meddling Legislation, issued by the National Association of Factory Occupiers, Manchester, 1855, p . 5.

83 .M______________________________ _I I

., eye; and J up to the present time, foolish people who deluded themselves with the notion that they could do as they liked ~. . ith their own, were benevolently restrained from speculating in company with a part of their property, unless at the peril of losing their all. 16 There Nere rumblings, slashing attacks and impassioned defenses in such places as The Quarterly Review, The Economist and even in Dicken's Household Words.

In the columns of The Times, the

battle echoed and re-echoed. Meam'1hile in the forties and fifties, the nature of opposition to centralization had been changing.

The London

Anti-Centralization Union had been founded in 1854J as had the National Association of Factory Occupiers.

Then too, the writ-

ings of a London barrister named Joshua Toulmin Smith, \V'ere providing the anti-centralizers with a historical and philosophical justification.

Under these influences, the grounds

of protest seem to have shifted slightly.

The "unconstitu-

tiona1it y tl of centralization Nas more heavily stressed than its invasion of private rights.

It Nas much the same position

expressed in 1847 Nhen Mr. Duncombe rose 1n Parliament to condemn the Government plan of education as, "dangerous to civil and religious 1ibertYJ and calculated to increase the pONer of the Crmm. . . ."17

In 1851, Smith opposed a national plan of

education on similar grounds maintaining: Any system of general education which gives any place to Government Inspection, or subjects arrangements in any shape to approval by authority, or empo\'iers any recommendation by authority; -- Nhich does not in fact, 16.

"Medical Despotism, II The Westminster Review, Vol. IX (Jan.-April, 1856), p. 531.

17.

Hansard, XCI (1847), 979. 84

shut the door upon everything of this sort; -- has in it the seeds of mischief and bears on its face the evidence that its end is, not development and free and original exercise, but moulding and obedience; the shaping of the national mind to the convenience or caprice of rulers, or the influence of a class, and not the forwarding of the well-being of a free people. 18 Again and again the anti-centralizers reiterated their belief that centralization Nas not only unconstitutional but un-British -- the antithesis of the spirit of independence.

It tended to

increase the pm'ler of the central government directly and through patronage, and always at the expense of the liberty and freedom of private action of the individual. The sentiment against centralization was surprisingly general.

Disraeli and the Tories had opposed such measures as

the General Board of Health in 1854.'

The ;·1anches ter Liberals

Nere determined in their opposition to government interference. The Whig-Liberals with their rather bland sponsorship of social reform were practical but scarcely philosophical centralizers. Radical Nonconformity, an increasingly powerful influence, was pulled in both directions.

Humanitarianism and a sense of so-

cial'mission encouraged some of its adherents to support a measure of intervention.

Yet the tug in the other direction

could prove even stronger, groNing as it did from their traditional belief in individual responsibility.

Thus in 1847, a

nonconformist minister could maintain that: 18.

Joshua Toulmin Smith, Local Self-Government and Centralization (London: John Chapman, 1851) p. 323.

85

.._a-______________________________._I

, 1

State power in religion, state power in education, state pOl'ler in inspectors, state pOl
J

'.j i .' :[

, I

!

Indeed they have been credited with achieving con-

siderable success, particularly in the fifties.

,,i.

One historian

has commented for example, that the defeat of the General Board of Health in 1854, "ushered in an era of localism marred only in 1856 by the creation of constabulary inspectors. ,,20

On

closer examination however, the triumph of localism (and implicitly of individualism and personal privacy) over centralized and intrusive authority, is illusory. Between 1837 and 1867, resistance to intervention by the central government had crystallized into opposition to the new poor law of 1834.

Yet centrally controlled poor relief

continued in spite of all the anti-centralizers and its other ,

opponents could do.

Religion complicated the attack on pro-

posed national schemes of education, but at least part of the

I

I I'

opposition was on grounds of their centralizing tendencies. ,

There too opposition '
While

I' I

no national plan \ms adopted in this period, there were grants of money which involved a measure of central inspection and

19.

cit., p. 69. Quot1ng from the Rev. A. Wells, On the Education of the Working Class, (London: 1847)

Roberts,~.

p.

20.

66.

Roberts,~.

cit., p. 95.

86

r

,I

I I

I'

1

control.

In 1859 l'lhen Robert Lowe replaced Kay Shuttleworth

as Vice President of the Committee of the Privy Council on Education, it was as an advocate of laissez faire committed as he announced, to introducing a little free trade into education.

His payment-by-results plan succeeded, after 1862, in

slightly reducing costs, markedly lowering standards -- but in little or no reduction of government intervention. 21 Meantmile, educational and sanitary provisions continued to be tacked onto factory legislation. The Local Government Act of 1858 Nas avowedly supposed to free local areas from central interference and control. was scarcely more successful.

It

A recent study of the activities

of the Local Government Act Office beh/een 1858 and 1871, suggests that far from decreasing -- the degree of interference, supervision and control by central government continued to in22 crease. In part at least, this was accidental. Within an increasingly complex and industrialized society, the process of administering, inspecting and advising, once begun tended 23 to maintain and expand itself.

21.

Stanley James Curtis, History of Education in Great Britain (third ed., rev.; London: University Tutorial Press Ltd., 1953) pp. 254-260.

22.

Royston Lambert, "Central and Local Relations in MidVictorian England, the Local Government Act Office, 18581871," Victorian Studies" Vol. VI, No.2 (Dec. 1962), pp. 121-150.

23.

Ibid., p. 149.

87

Thus at a time Nhen they seemed on the point of winning their greatest successes, the anti-centralizing forces were actually weakening.

It is plain that even at the beginning of the

century the areas which were private to the individual and inviolable by government, were less strictly defined than has sometimes been supposed.

Nevertheless the breadth of govern-

ment and the ease with which that intervention might be effected, Nas far greater in 1857 than it had been in 1819 or even in 1837.

Most significant was the calmness with which that in-

tervention was accepted.

In 1857 The Times, certainly no ad-

vocate of centralization, inquired sharply in an article on sanitary improvements: Are you to leave a to~m entirely to itself, and let it spend as little money as it likes, or is there to be a central power of enforcing improvement? It is clear that the latter is wanted in some shape or other . . . . The cry for local self-government may . . . only be in some mouths a call for a clear field for sma14 jObs, petty authority, and unchecked rule of No. 1.2 The plea for the preservation of individual liberty, privacy, property and the old cry of centralization, Nas raised after 1867 but infrequently and llii thout much response.

There

Nas a new sureness and authority in the tone \'lith Nhich Walpole introduced the factory acts extension bill in that year. . . . It is the duty of the State to protect those who are not able to protect themselves . . . . There is a parental duty as well as a parental right. The first duty of a parent is to see that his child is physically, mentally

24.

The Times, Oct. 21, 1857, p. 8.

88

! I

and morally educated, in order properly to fulfil the various duties of life. If that duty is neglected, we must corne to the State, the parent of the country, to f111 the place of the natural protector of the child. 25 There was quiet confidence too) in the comments of Sir John Simon.

In an 1868 report dealing with public health he stated:

In the interests of health the State has not only . . . limited the freedom of persons and property in certain common respects: it has also intervened 1n many special relations. It has interfered between parent and child . . . . It has interfered between employer and employed . . It has interfered betNeen vendor and purchaser; has put restrictions on the sale and purchase of poisons, has prohibited in certain cases certain commercial supplies of water, and has made it a public offense to sell adulterated food, or drink or to o~~er for sale any meat unfit for human consumption. . . . By the late sixties and early seventies the areas which were private to the individual and outside the sphere of government interference, had markedly diminished.

It must be

admitted however) that they had never been quite so clearly marked or so inviolable as most of the anti-centralizers had believed.

Professor Briggs is among those Nho have pointed out

that the purely Itnegative statetl never in fact eXisted. 27

The

tradition of a benevolently intervening State runs parallel to that of one which benevolently abstains from intervention. Oastler) Ashley and other reformers could if they Nished, vieN

25.

Hansard) CLXXXV (1868), 1276-77.

26.

Sir John Simon, Eleventh Report of the Medical Officer of the Privy Council, 1868; Reports from Commissioners 1868 (4127) XXXII, 21.

27.

Asa Briggs, "The Welfare State in Historical Perspective)1I Archives Europeennes de Sociologie, Vol. II, No, 2 (1961}) pp. 221-268.

89

I

themselves as restorers rather than innovators.

Few beside

the Benthamites broke so distinctly Nith the historic past. Probably the redefinition of areas of personal privacy and liberty-to-act \..;hich had taken place by about 1867, Nas less remarkable than it first appears. of principle than of practice.

It Nas really less a matter

It Nas not that the State Nas

asserting something new in its right to intervene in the relations of its subjects -- for that right had alNays belonged to it in some degree.

Rather it was that the new administrative

bureaucratic state could intervene so much more effectively. Over and over again it is the objection to Inspection which emerges from the controversies and polemics.

Speaking in op-

position to the Conspiracy to Murder Bill in 1868, Mr. Beresford Hope objected that in order to get proof required for indictment it would be necessary to resort to, "the agency of spies and traitors and secret informers \IIhom it had never been the policy either of our courts or of our Parliament to encourage." added pointedly, "Perhaps France was sick of liberty.

He

A gagged

press and a police spy in every saloon \'1ere perhaps desirable things: but that Nas their look out, and not ours. it continue to be their look out.

Only let

1128

The idea of Police like the idea of the Inspectorate, Nas a sensitive and controversial one reasons. 28.

and for much the same

Any kind of centralized police force was unpopular,

Hansard, CXLVIII (1858), 1016.

90

· ·· -1

, calling up lurid images of I1Cont1nental" despotism and oppression.

The Napoleonic Wars and their aftermath had brought

suspension of the Habeus Corpus Act and the passage of repressi ve measures.

Peterloo had been follml/ed by an increase in

the size of the army and by the IIgag acts. u29

Whether or not

these measures \'Jere necessary, they \'1ere generally disliked -- and their memory lingered. But the old informal system which had relied on the unpaid, undisciplined and largely unsystematized efforts of amateurs (reluctantly backed in times of crisis by the military) was plainly inadequate for the needs of a growing population.

This \'Jas particularly true since a greater proportion

of that population was cramming itself into large and often industrial

to~ms.

In 1829.1 therefore, the neN Metropolitan

Police Force Nas created for London.

By 1839 the counties and

boroughs had been given the power to create similar bodies and in 1856 they Nere required to do so.

The County and Borough

Police Act of that year, provided for grants to localities After 1829, the Home Secretary

and a central inspectorate.

exercised ultimate authority over what was becoming in its oddly localized way, a nati9nal police force. Another, though partial and hesitant step had been taken in the direction of centralization.

29.

Again the area of

Asa Briggs, ~T~h~e~~~~~~~~~~~~~~~ (London: Longmans, Green

91

public responsibility and interference had been increased. this had not been done

\~ithout

But

a great deal of heart-burning

and Norry and many backt'fard looks.

In 1822) a Se lec t Committee

on the Police of the Metropolis stated the prevailing

vie\~

of

the problem. It is difficult to reconcile an effective system of police, with that perfect freedom of action and exemption from interference, whi8 h Rre the great privileges and blessings of society in -this country; and Your Committee think that the forfeiture or curtailment of such advantages Nould be too great a sacrifice for improvements in police facilities, in detection of crime, ho\~ever desirable in themselves if abstractly considered.30 It

\~as

the peeping and prying, the unwarranted intru-

sion that Nas feared.

Suspicion lingered in the popular mind

long after the Metropolitan Police had begun to prove itself. The case of officer Popay was typical of the problems faced by the police.

Popay was severely censured by another Select

Committee because of his over-zealous activities as a plainclothesman.

He had insinuated himself into meetings of the

National Political Union of the Working Classes and thereby called dOlffi on his head a petition of complaint. tee absolved Popay and his superiors of any

The Commit-

\~ongful

intent

but, IIs01emnly deprecated any approach to the Employment of Spies . . . as a practice most abhorrent to the feelings of

30.

Report from the Select Committee on the Police of the Metropolis; Reports from Committeesj 1822, (440), V, 11.

92

"'1 'l

the People, and most alien to the spirit of the Constitution. ,,31 Simmering over the years, the controversy boiled up again in 1839 and again more violently in 1856.

Extension

of the system to the boroughs and counties, revived and strengthened all the old fears.

In 1839 an alarmed Norfolk

clergyman predicted: When . . . hon~ gentlemen tell UB, that this new force will deter from crime, I have strong apprehensions that such may not be the result, but that force, blazoning on its banner jealousy, suspicion and distrust, may carry in its train irritation, hatred and malice propense.3 2 Seventeen years later sentiments not very different in tone, still found expression.

jI

",:"

Ii

.:! ,:

Mr. Roebuck professed to see

in the proposed County and Borough Police Bill, a tendency to ·1

increase the pONer of the Secretary of State for the Home Department to the pOint of making him, tla second Fouche, Hith spies allover the kingdom. tl33

While Mr. Knight:

. . . Cautioned the county Members against voting for the Bill, Nhich he regarded as a most dangerous and insidious measure. He especially objected to the appointment of 31.

Report of the Select Committee appointed to inquire into the Matter of the Petition of Frederick Young, and others of WahlOrth and Camber\'le11 complaining that Policemen are employed as Spies . . . j Reports from Committees; 1833, (718), XIII, 2.

32.

Rev. C. D. Brereton, A. M., A Letter to the Lord Lieutenant and Ma istrate of the Count of Norfolk on the Pro osed Innovation in the Rural pOlice London: SNaffham for J. Hatchard and Son, 1839) p. 34.

33.

Hansard, CXLII (1856), 307.

93

-I l [

.~

inspectors . . . . Let the House agree to the appointment of police inspectors and the country Nould soon be cursed -- Eor a curse he must call it -- with a Police Minlster. 3 However, the police were winning supporters of their own and even a measure of popularity.

As early as 1834, a Select Committee

had reported that: The Metropolitan Police has imposed no restraint~ either upon public bodies or individuals, which is not entirely consistent with the fullest practical exercise of every civil privilege, and with the most unrestrained intercourse of private society.35 The Benthamite vision of a uniform and efficient national constabulary force was not to be realized. 36

But again

the appeal of efficiency was strong to many who were not Utilitarians.

The new partially-centralized system worked.

Life

was safer and more comfortable and there was an increasing body of opinion willing to concede with the author of an 1839 open letter to Lord Brougham: Such of us as are thieves or rogues, street-walkers or night-braNlers, have not indeed, perhaps, so much of their peculiar freedom as they had under the old regime 34.

Hansard, CXL (1856), 2186.

35.

Report from the Select Committee on the Police of the Metropolis; Reports from Committeesj 1834 (600), XVI, 13.

36.

Charles Shat'l Lefevre, Charles Ro\.,ran and Edwin Chadt'lick, First Report of the Commissioners Appointed to inguire as to the best means of establishin an efficient Constabular Force in the Counties of England and Wales London: W. CloNes and Sons for H. M. Stationery Office, 1839).

94

tendency of society to impose, by other means than civil penalties, its O1m ideas and practices as rules of conduct on those who dissent from them. . . . There is a limit to the legitimate interference of collective opinion \'lith individual independence: and to find that limit and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.38 To \
This was the central problem.

While the separation of

private and public life had never been complete, the tendency in earlier periods had been to permit a veil of decent obscurity to be drawn over less obvious lapses of conduct, particularly the conduct of prominent men.

The moral tone of society had

certainly risen since the scandalous enormities of the Regency period. 3 9

But much was overlooked in the thirties and ' forties

Nhich proved completely unacceptable in the eighties and nineties. This too may have been less a matter of principle than of practical means.

By the eighties and nineties there were

simply more people t'lho kne\'1 more about what \'1as going on. 38.

John Stuart Mill, On Liberty (Chicago: Gateway Editions, Henry Regnery Co., n.d., first pub. 1859) pp. 5-6.

39.

David Spring, "Aristocracy, Social Structure, and Religion in the Early Victorian Period .. " Victorian Studies Vol. VI, No.3 .. (March 1962) pp. 262-280. Mr. Spring concludes that IIfrom one point of view it may be called the moralization of aristocracy; from another the melting down of society.1I p. 281.

96

d

The

':1

.1

·!.I

.· .

I ,"

removal of the last of the taxes on newspapers in 1855, and the

I

rapid grmV'th of a cheap daily press Nas making it possible to inform and also to form a kind of mass public opinion.

The

circulation of daily papers in 1880 Nas about 700 .. 000 and that of the Sunday papers had reached 1,725}000 by 1890. 40 Just what this Nas to mean in regard to personal privacy, how terrib1e the surveillance of the press could be, and \'lith Nhat \,-leight public disapprobation could fallon an individual .. Nas to be demonstrated in the cases of Dilke and Parnell. Divorce was the means of destruction in both

in~

stances, Ni th ne\'1spapers throNing the proceeding open to the \V'ider court of public opinion.

Lord Melbourne I s reputation

and political career had survived tlio involvements in divorce actions in the thirties.

But the Mordaunt case of 1870 had

caused the Prince of Wales considerable 108S of popularity Nhile the ruin of Dilke in 1886 and Parnell in 1890 .. was · .i

spectacular and complete.

It Nas Significant, it Nas more

than that J it was symbolic.

Once more the area of liha t lias

personal and private as opposed to what Nas public .. had been redefined and the former drastically reduced .

It is true

that the means of that reduction and redefinition lias informal, extralegal

the mobilization of public opinion rather than

the action of the legislature, but it was effective nonetheless. 40.

Raymond Williams, The Long Revolution (NeN York: Columbia University Press, 1961) p. 176. 97

Crawford v. Crawford and Dilke began quietly on August 5, 1885.

Donald CraNford, a Scottish barrister, insti-

tuted divorce proceedings against his wife Virginia, and named Sir Charles Dilke as co-respondent.

October saw ripples of

scandal passing outward through the political and social hierarchy as the details became known and by February the \'Iay was prepared for wider notoriety. Seduction, a prolonged adulterous relationship, "French Vices, II the charges alone i'lere sensational enough to cause plenty of comment.

In the political context of the day,

however, they \'1ere electrifying.

Charles WentNorth Dilke Nas

not only a man of means and of some social standing, but a prominent politician.

A Republican, a leading radical, friend

and ally of Joseph Chamberlain, he \'1as a former Cabinet minister and, it ''ias rumored, perhaps a future Prime Minister. When the case was heard in February it Nas discovered tha t there t'ias little to involve Dilke, except Mrs. Crai'iford IS unsupported story.

On the advice of counsel, the politician

did not take the stand.

As Mr. Jenkins, his biographer, has

pointed out, IIThere was no legal advantage to be gained. purpose Nould be to convince the public, not the judge." 41

The But

it Nas a serious tactical error for it t'las precisely the public that required to be convinced. The case against Dilke Nas dismissed and the plaintiff ordered to pay his costs.

41.

Dilke had been acquitted in law but

Roy Jenkins, Sir Charles Dilke, a Victorian Tragedy (London : Collins Publishers, 1958) p. 236.

98

not in the eyes of the public.

The Times Nas displeased, the

Manchester Guardian dissatisfied, and W. T. Stead's sensational Pall Mall Gazette began to mount an attack which Snead continued

,i

'!.I -;

I

Nith crusading fervor over many years. Thoroughly alarmed, Dilke attempted to salvage his damaged reputation. was re-opened.

By action of the Queen's Proctor the case

CraNford was fighting for his divorce, Dilke

for his political life.

Even in January before the first trial

had concluded, he had found himself excluded from the new Gladstone Cabinet. Not all the politicians l'lere unfriendly. Churchill

\~ote

Randolph

sympathetically to assure him: _i

I hope you will not take the smallest notice of the ne\'lspaper persecution, which is going on. The "Majesty of the lat'll! is a very taNdry and poor sort of affair if the deliberate investigation of accusations by a Court of Justice and a clear judgment . . . cannot afford complete and adequate protection to the person against \lJhom such accusations have been made. 42

;

, ,I

"i :i ,i I

But it \'las not Gladstone, or Churchill or indeed any of the politicians who were, in the last analysis, in control of his fate.

Before the intervention of the Queenls Proctor and the

re-opening of the

case~

a general election had occurred and

Dilke had lost his Chelsea seat. Throughout the course of the t\'10 actions, public interest had been intense.

42.

The staid Times devoted columns to

Jenkins, Q£. cit., p. 249. Letter from Randolph Churchill to Charles Dilke, April 8, 1886; (the Dilke Papers, 43940,

136.).

99

reporting the progress of the trial.

The tactics of the Pall

Mall Gazette and some of the other ne\'1spapers were more sensational.

They laid before a fascinated public the details of

Dilkels private life -- from a record of his personal appointments, to a description of his bedroom furniture. On February 12, the intervention of the Queen's Proctor was dismissed and the original divorce decree permitted to become effective.

In the public mind the burden of proof had

lain with the Proctor to show that the original decree should not be granted because Virginia Crawford had not committed adultery with Dilke.

This had not been proved.

Although Dilke had

been dismissed from the first case and could not in law be a party in the second (a fact which put him at a great legal disadvantage), although he was innocent in the eyes of the law -to the public he was guilty.

It was a political death-sentence.

With that verdict, the career of Sir Charles Dilke came to an end.

Years later he Nas to re-enter Parliament,

but he Nas forever excluded from the inner circles of power and influence.

The most recent examination of the evidence has

convinced his biographer that there was more than a reasonable doubt that he Nas guilty of the charges \<[hich Mrs. CraNford had made against him. able doubts J

II

But the damage \I[as done and such "reason-

signified very little.

In 1889, replying to Dilke's query about the advisability of standing for the Forest of Dean as Liberal candidate, Gladstone advised him to abstain completely from public life at

100

s

least for a time.

Reluctantly he echoed the popular verdict,

remarking: . You will perceive that the judgments of the world are in certain cases irresistible as Nell as inexorable) and must be treated as if they were lnfallible. 4 3 The "judgments of the world," proved equally irresitible in the case of Charles Stuart Parnell in 1890.

O'Shea v.

O'Shea and Parnell, was a sordid and not particularly unusual story.

An estranged wife, an untrustworthy friend and perhaps,

a complaisant husband -- if it had not involved the great Irish politician it would have excited little attention.

And even

though it concerned a leader of Parnell's magnitude it might, had it occurred a couple of decades earlier, have been successful1y ignored.

In fact the liaison \lias of many years

standing and seems to have been

kno~m

or suspected in the

political circles in which Parnell moved. papers which made the difference.

It was the news-

It Nas a ne\'ispaper report

Nhich triggered the divorce, it Nas the pre ss '<Jhich kept the proceedings in the forefront of the public mind, it ''las publication which turned Gladstone I s letter into loJhat Nas in effect an ultimatum. 44

43.

Jenkins,~.

cit., p. 378.

44.

F. S. L. Lyon, The Fall of Parnell Ro.u tledge and Kegan Paul Ltd., 19 0

1 (London :

I

I

!

'I

101

Parnell had assured his friends that he Nould corne through the action unscathed.

Perhaps he thought that Captain

O'Shea could be persuaded to withdraw at the last moment. haps he underestimated the

prn~r

of adverse publicity.

Per-

In the

event, for reasons never adequately explained, he permitted the action to go uncontested.

O'Shea won his divorce and the neNS-

papers pronounced Parnell's guilt. 45 Could political leadership survive such personal disgrace?

Parnell believed it could and proceeded on that as-

sumption.

For a time it seemed that Irish opinion and his

party t'/ould unite in his support. tipping the balance against him.

But pONerful forces ''Jere The Irish Catholic hierarchy

Nas nON firm in opposition, though the bishops might prefer, for political reasons, to use secular channels. 46

English

Catholicism Nas equally hostile and added to their clamor Nas the far more pm'lerful voice of outraged Nonconformity.

W. T.

Stead in a letter addressed to Gladstone on November 20, 1890, said bluntly:

"I know my Nonconformists well, and no power on

earth \'1111 induce them to follm'l that man to the poll, or you either, if you are arm-in-arm with him. 1147 To Stead and to others, it l'laS not just the adultery but the deceit surrounding it that \'las so distasteful.

45.

46.

47.

"This

Lyon,~. cit., pp. 41-70. The author suggests that Parnell and Mrs. O'Shea believed that the Captain could be bribed into a last-minute NithdraNal, but the money could not be raised.

Emmet Larkin, liThe Roman Catholic Hierarchy and the Fall of Parnell," Victorian Studies, Vol. IV, No.4 (June 1961) pp. 315-337. This gives an interesting insight into the bishops'role in the pONer-struggle. Frederick Whyte, The Life of W. T. Stead, Vol. II (London: Jonathan Cape, n.d.) p. 20. Letter of Nov. 20, 1890. 102

I ·1I

man has proved himself a thorough-paced dissembler," Stead warned Gladstone in another letter.

"Every Liberal Candidate

will be asked at the meetings, IDo you trust Mr. Parnell?

I

This is not an affair of adultery, but an affair of confidence, and no one henceforth can evermore have confidence in Parnell , 1I48 Gladstone did not need advice from such a source. Parnell as a leader imperiled home rule and Parnell had to go. In the Morley letter, Gladstone had made his position clear and ,~en

Parnell refused to withdraw from leadership, a split be-

came inevitable.

All this maneuvering was conducted in a

glare of publicity Nith letters and manifestos flying back and forth like brick-bats.

Issues \'Jere magnified and em-

bittered. In the end, Parnell t1as destroyed.

Like Dilke he had

gravely miscalculated the extent of his personal freedom to act -- had seriously over-estimated the area of his personal privacy,

The Times was merely voicing a generally accepted

pOint of vietIT when it stated in an editorial of November 18, 1890: The offence of \'1hich Mr. Parnell has thus been convicted is one which, however lightly it may have been treated in former days, is, in this country at least and in these times regarded as involving grave personal discredit and incapacitating a man from asserting the moral ascendency that ought to be possessed by a political leader. No statesman aspiring to control a pOh'erful party and to share in the responsibjlities of office could survive the bloh' of llivin g such a charge proved against him in open court. ~ 48.

Ibid., p. 20.

Letter of Nov. 19, 1890.

49.

The Times, Nov. 18, 1890, p. 9. 103

Q

"'

A tone of life, a climate of opinion had changed.

Things were

nON to be public which had in the past been distinctly personal and private.

"This is not," pronounced The Times, Ita case in

Nhich it can be objected that questions of private character are unnecessarily and unfairly dragged into public controversy. The facts are thrust upon the public . . . . "50 As yet, fe''1 perceived the menace of this ne\'1 intrusion. The battle for the preservation of personal privacy Nas not to be fought out in the Victorian period.

The threat, the means

of intervention Nere too strange and too ne\'/ for the Victorians to assess.

Some, like Emerson) might catch a glimpse of the

new shape of things -- but they did not really understand Nhat Nas implied. There is no corner and no night. A relentless inquisition drags every secret into the day, turns the glare of this solar microscope on every malfeasance, so as to make the public a more terrible spy than any fore i gner. . . . 51

IV.

CONCLUSION

"j

The purpose of this report has been to provide the historical background to a discussion on the degree of privacy which should be alloNed in contemporary American society and as to whether new legislation is needed to protect the rights of privacy against the intrusions made possible by recent technological developments.

In conclusion an attempt should be made

50.

The Times, Nov. 18, l890} p. 9.

51.

Emerson} 2£. ci t.

J

liThe Times, II p. 2ln. 104

I \

I

4

to relate the history of privacy in Western Civilization to these contemporary problems. It has been shown that there \'las a negligible concept of the right of privacy before the emergence of an idea of the liberty and dignity of the individual.

This concept came to

clear consciousness in seventeenth century England, taking its origins in medieval English political and legal institutions, and in certain Christian attitudes.

The common la\'1 slowly ad-

justed to emergence of the concept of the liberty of the individual so as to provide, although never in a perfectly clear \~y,

for certain rights of the privacy of the individual.

In

Victorian England there Nas a clear affirmation of the value of privacy by leading thinkers and public men, but almost immediately there was an attack on the privacy of the individual in the interests of the common l'lelfare of an industralized society and an effective intrusion on the reality of privacy by the institutions of mass culture. Thus history, called to give testimony on the validity of a certain concept, gives) as alNaysJ a mixed and relative anSNer.

The right of privacy seems to be associated \'lith the

era of dominance of the English middle class and to be part of the mores and \'1ay of life of this group from the seventeenth to the latter part of the nineteenth century.

Since the emer-

gence of the welfare state and mass culture in the nineteenth century both the moral and legal right of privacy and the actual freedom of individual activity has been under attack from the state and the engines of popular culture. 105

,i

U. of C. Lt\VI UBRJiliY