/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. Conclusion. , . . . . , . . . . .104
 Fore \<lord

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 pri-
vacy 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, empha-
sizing 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 his-
tory 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 im-
plications and tendencies rather than clearly realized doc-
trines, 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 lib-
erty, 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 intensi-
fied 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 lib-
erty in Western Civilization in a more profound manner. Never-
theles8~ Leonard Krieger, liriting in 1962~ 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 con-
cepts 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 execut-
ing him, even though a great deal of his teaching Nas done
in private houses through discussion with a group of disci-
ples.
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 re-
flects 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 des-
potic 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 val-
uable social unit, but in the rabbinical view there is no con-
sciousness 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 authori-
tarianism, by l<lhich earthly representatives of Divine Truth as-
sert their prescriptive rights against any consideration of in-
dividual liberty and privacy, attained its fulfillment in the
Pauline-Augustinian form of Christianity. 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 and, as we shall see, this theory

4
 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 ChriS-
tian 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 al-
liance 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 hier-
archical authority over the ordinary believer.
The religious authoritarianism of Catholic Christi-
anity~ so inimical to doctrines of liberty and privacy, was
most decisively expounded by great Church Fathers St. Ambrose

7
and St. Augustine in the late fourth and early fifth centuries.
Their teachings reveal the strong influence of Pauline teach-
ings 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 pri-
vacy 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 over-
ride 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 Chris-
tian 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 con-
sequences 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 Chris-
tianity after the rise of popular heresy in the twelfth cen-
tury; it is the teaching on \<1hich the papal Inquisition of the
thirteenth century was to be based.

6
 In only two respects~ and even then with great am-
biguity~ 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 soul~ an element akin to
the Pure Spirit of God. Those mortals who had demonstrated
the holiness of their soul~ that 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 supervi-
sion 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 aristo-
cratic 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 ul-
timately contributed to a right of privacy derives from the fre-
quent 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 tor-
ture to gain evidence, and the forcing of defendants to give
testimony against themselves -- in these practices of the In-
quisition 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 es-
tablished, 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 re-
spects, and although we can dismiss any myth of the innate
freedom-loving character of the English people as an explana-
tion, nor agree Nith the Victorian as to the inevitability of

9
the rise of these concepts in England given the medieval in-
stitutional structure, no amount of scoffing by tNentieth-
century writers of limited vision can gainsay this funda-
mental fact.
The idea of liberty in England, as it comes even-
tually and painfully to full consciousness in the seventeenth
century, can be seen on close analysis to have two very dif-
ferent 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 what-
ever 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 liber-
ties 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 and divine sections. For if, as St. Thomas Aquinas teaches,
!
l 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 indi-
viduals and corporations are ultimately in accord \<lith God's
\'Jill. 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 in-
dividualistic idea of liberty l'Ihich \>1as to have a powerful in-
fluence on seventeenth century thought. This heretical Chris-
tianity (Lollardy) was an offshoot of the teachings of the sub-
verSive 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 demo-
cratl'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 impli-
cations 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 prop-
erty) idea of liberty became involved \'lith the Thomist and radi-
cal 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 century~ and again in the later
sixteenth century} the M.P. IS 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. All Englishmen have cer-
tain liberties under the IaN: 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 lib-
erties.
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 al-
leged 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. The "godly
people ll should have the vote. Some of these radical thinkers,
moving a\'iay from theological presuppositions, lmrnedia tely
secularized this doctrine of religious democracy into a pris-
tine 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 IS theory of liberty can now be
perceived. 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 sub-
version. 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 be-
tween the claims of property on the one hand and the demo-
cratic 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 de-

farnation 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, parti-
cularly 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 af-
firmation, 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 in-
trusion 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 his-
tory and the basic constitutional documents of English-
speaking 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 an-
cient 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 Eng-
lish 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 -- per-
haps 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 disinclina-
tion of the mob to violate Lotls household in Sodom. (This
principle of hospitality and protection declaring the dNell-
ing 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 ob-
tain 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 in-
dividuals 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 every-
one 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 per-
mission 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 de-
sired 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 forg-
ing 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 rea-
sonable amount of supporting attestation, and (e) the issuance
of Narrants by that judicial authority which more or less de-
scribe the persons and/or to a lesser degree goods and docu-
ments 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 pre-
ceded 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 Wlreason-
able 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 suf-
ficient l'larrant, in everyday criminal la\'l, for any action
of this kind, and that Nritten Narrant \'Jas a later devel-
opment."
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 Eng-
land, 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 af-
firm 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 princi-
ple 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. ~. cit., at 21.

18. 1 Co. Inst. 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 limi-
tations 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 Nork-
ers,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 inn-
keepers. 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 al-
low deputization of authority.
25. 3 Henry VII J C. 14 (1511).
26. See Holdsworth, Vol. VI, ~t 364.
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 de-
tection 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 evi-
dence 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 accompany-
ing 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 :
.
:, '"
-'
~;~
 31
Nri t de excarrounica to capiendo Nere not used. The general
I<larrant , or more particularly the l'lI'it of assistance .. was an
important \'leapon in suppression of unpopular causes because
it could be general (as its name implies) in regard to per-
sons sought and material seized. As has been intimated, it
probably had its origin in the collection and search of cus-
32
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 pur-
suit.
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 pa-
pers 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. These
general t'larrants \'Jere used throughout the period. 40 The
Restoration resulted in a close supervision of the press 4l
and this found as its primary method the use of general 1'1ar-
42
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. Coke's
will was seized.
39. Lord Hale, see Lasson, £R. cit., at 35; also Coke's some-
what 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 punish-
ment . . the Ordinance of 1643 used such warrants to enforce
censorship. See also Milton's Areopagitica condemning this
act.
41. This will be discussed belo,,,_ Also see infra: the North
Britain and other cases.
42. Hariss' Case . . 7 St. Tr. 929. Also Carr's Case 7 St. Tr.
1127.
43. "Hearth Money" tax Car I I C. 33 gave right for a daylight
search of home by revenue officers.
[Cont'd]
26
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 j
1

I
II
upon importation \'las roundly decried because it provided for 1

search of such places. Even Walpole's contention that only

45 Blackstone
I
special warrants would be used was in vain. , \

describing the issue of economic advantage of excise as I

;
1
,. j
against possible arbitrary practices said: 46 [

But, at the same time, the rigour and arbitrary .

'I
,[

proceedings of excise laws seem hardly compatible . I

with the temper of free nation. For the frauds !

that might be committed in this branch of the rev-
enue, unless a strict watch is kept, make it nec-
essary '. . . to give officers a power of entering
and searching the houses of such as deal in excisa-
ble 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
use in matters of censorship and sedition Nas not really de-
cided 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. A
\~lter, 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
48
warrant. 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\</ed

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\<l
after a long continuance. This on the other hand,
\'las 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 di-
rections to the officer.
RO\ieVer, these cases merely raised the issue of due
process of general t~rrants tangentially and did not actually
decide the crucial issue whether warrants as to the person,
were adequate process to commit searches and seizures in mat-
ters 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, when-
ever 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 con-
cerned in the paper. Such is the pot'ler> and there-
fore 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,

53. Lasson, ~ cit . , at 49, cites Parliament IS reluctance.

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 there-
fore 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 These writs came to
be roundly condemned by their abuse. When in 1761, all i~its

expired,61 the Writs of Assistance Case arose. 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: It gave customs officers
broad search powers.
64. See Art. 39 supra and discussion there.

33
 '~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 juris-
diction, 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 trans-
ferred 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 The legalization of the writs of assistance
by 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, ~ cit., 73 ff.
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, ~ cit., at 85 ff.
75. The federalist argument that a Bill of Rights should
be Nithin the reserved pONers of the states.
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 limita-
tions 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 juris-
diction 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
IJ • Lasson, ~ cit" at 106.
37
r
!
La\1 in 1890 J a series of cases arose invol ving
I

the question \~ether the compulsory production

of papers by legal process violated the
Amendment.
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.
r
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 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 com-
pulsory 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 for-

feited goods, or goods liable to duties and con-
cealed 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 \~s

84. 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 col-
laterally 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 en-
gaged 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 Ho~ 1 (1849).
92. Ex Parte Milligan, 4 Wall. 2 (1866).

40
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 ex-
pressed 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 u.s. 727 (1877).
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).
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</ere required to ignore Nhat
it had learned through the invasion. The question
is whether protec tion for the individual \'1Ould not
be gained at a disproportionate loss of protection
for society. On the one side is the social need
that crime shall be repressed. On the other,
the social need that law shall not be flouted by
the insolence of office. There are dangers in any
choice.
To those who think that individual liberty has grown
from the North Britain,98 to the declarations of James
otis,99 through the struggle for a Bill of Rights, these
words may give pause: IOO
Were Lord Ch3I:ham in some miraculous way
to return to his earthly state, and direct his
attention toward the law of search and seizure
as it has developed in America, he Nould doubt-
less be amazed. On every side, officers of the
law are going to lengths which enforcement
methods of his day would not justify, even before
the decision of Entlck v. Carrington.

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 This will con-
centrate on that area of It 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 COLONIES AND THE AMERICAN EXPERIENCE
IV. PRIVILEGED COMMUNICATIONS

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 pro-
cedure of Nhich the oa th ''las a part \lias its re-
quirement 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 in-
quiry 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 adminis-
tration 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, ~. cit., at 271.
12. Morgan,~. cit., at 3.
13. See 8 Wigmore, ~. c1t., at 272.
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 con-
cerned 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.
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 pro-
cedure-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" pro-
ceedings; 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. See previous
paper on defamation.
29. Caudry's Case, 5 Co. Rep. 8 (1583).
48
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 incon-
tinence 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 present-
ment 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, ~. cit., at 8 (m.30)
33. 8 Wigmore § 2250 (McNaughton ed. at 268)
49 II
(McNaughton 34 disagrees and thinks Wigmore's translation is
an attempt to prove his position that inquisitorial pro-
cedures 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 of-
ficio oath. But there can equally be no doubt that
to the common lawyers a system Nhich required a per-
son 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 Ij
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
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 tu-
multous assembly. By 1700, the rule is fairly fixed, that
It, 0 • 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 prose-
cution, 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.) It was
not until 1848, that the accused ~I[as given the benefit of a

3B. 3 Ho\\I. St. Tr 0 1368 (1638)

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) ,
42. 12 Geo. III 44 . 44. 728 Geo, IV.
43. 728 Geo , IV.
51
 preliminary hearing where he could be before the witnesses
against him and cross-examine them . 44 Torture-induced con-
fessions 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 pro-
ceedings 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 contro-
versy as to the extent of colonial privilege .
Pittman 48 feels that the Massachusetts Body of
Liberties of 1641 reveals a condemnation of forced confes-
sions in regard to the privilege. Wigmor-e 49 felt the privi-
lege 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. See also, Stephen, ~ . cit . at 216.
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) .
49. Q£. cit., at 269 .

~_ _ _ _ _ _ _ _ _ _
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-incrimi-
nation, 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 con-
viction but the risk of prosecution . . .
:~
(2) The guarantee against self-incrimination con-
tained in the Fifth Amendment is not only a
II
.~

55. See 2 Wigmore.J 2J2.., cit., at §575. ·1

I

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
 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 ac-
cused 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. Confidential communications have been defined
as: 60
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 re-
lation 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 ob-
tain 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 qualifica-
tions. 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, 2354-
i 2364, 2379, 2388-2391, 2394.
~

l
At least to Elizabeth. See Berd v. Lovelace, 21 Eng.
'I 67. Rep. 33 (1577).
68. Greenough v. Gaskell, 39 Eng. Rep. 618 (1833). See
also, Minet v. Morgan, 8 Ch~ 361 (1873)
69. 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, ~. cit., §§ 2346, 2360-2362.
73. Ibid., at § 2367.
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).
79. United States v. Burr, cit. supra. Unlike the United
States, England allONS the head of the department con-
cerned 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).
 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 privi-
lege around the communications of the doctor and his patient. 82
Generally, communications made in the confessional
are not privileged at common la\</83 (although there is a clear
indication of a reluctance to press the issue in earlier
times 84 ). However, it would be extremely difficult to find
modern precedents in t'lhich a priest t'las compelled to disclose
any confidences (in fact, rarely does a clergyman get called
to the Nitness box because it Nill no doubt antagonize some
members of the jury.)85
The see-saw development of the law seems no more
evident than in the development of the lat'l of privilege. The
word itself has so many meanings that it is actually meaning-
less. 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 Anglo-
American 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 in-
fluenced, 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 in-
cidental 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 develop-
ment 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 de-
famations the suitor was obliged to go to the

l 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 juris-
diction by allowigg an action on the case for
defamation. , . ,
This defamation has its roots in Germanic folk law,
Roman Law, and Bubsequently~ in an admixture of case decisions

1I 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,~. cit. at 100.
8. Id., at '102-103.
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. They
attempted to create a monopoly over spiritual life. Sexual

9. 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~' cit. at 564.
11. Holdsworth,2.£.. cit. 40 LaN ct. Rev. (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 frame-
work 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.
Even before the Commom~ealth it had received its
I
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 juris-
diction survived in theory \'o)i thout any adequate means ';1
~
' ;

of enforcing it, but it was at 1ast1~bolished in

theory by 18 i 19 Vic. c. 41 . . . . 'J
'!
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, ~. cit. at 550.

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).
62
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 through-
out 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. See ordinance of 1637.
19. Holdsworth, op. cit., 41 LaN Q. Rev. 14-16 (1925).

63

I
justification could be no defense in criminal libel cases.
The Star Chamber, then, having taken over juris-
diction of libel with particular reference to dis-
cussion 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 O\ffi theory of libel at a time
when libel was a crime. 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 con-
trition), 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\<l 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,~. cit., at 558.
28. Donnelly, 2£. cit., at 114.

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. The
categories contrived were: " . (1) imputations of a
crime; (2) imputation of certain loathsome diseases; and
(3) imputations affecting the plaintiff in his business,
trade, profession or office ,,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.
1,
33. rd.
i
·1 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.- Censorship and libel be-
came interwoven. 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 al-
legations 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. • • contains more malice than if they
had been once spoken . . ." . 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,~. cit. 3 Col. L. Rev. at 568.
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.
70
except if special damages could be proved. Ogden v. Turner,
Holt 4, 6 Mod. Rep. 104 (1704). 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 ,.
;
,j

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)
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. Also Veeder 2.£. cit.
3 Col. L. Rev. at 568.
41. Johns v. Gitling, Cro. Eliz. 239 (1590). De Libellis
Famosis, supra, laid down the rule in criminal pro-
ceedings that truth could be no defense.
42. Veeder, 2.£. cit., 4 Col. L. Rev. 33 (1904).

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 Q. Rev. at 28.

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

45. Holdsworth, 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 en-
counter 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 plat-
form. 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 con-
science 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 ~
I
of privacy. The first half of the nineteerith century was :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.

'* * '*
1
"They are proud and private II 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. The
house is a castle \'Jhich the king cannot enter, The Bank is
a strongbox to which the king has no key. 1f 3 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. A negative had become a positive
right. 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. liThe
motive and end of their trade and empire,1I 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. An examination of
the anti-cent'ralizers ShONS 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 in-
dustries 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 'I

(London: The Thames Bank Publishing Co., Ltd., 1948)
p. 32.
76
It proved to be of little practical importance since it was
passed at a time ''>'hen the use of such apprentices was de-
clining. 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 in-
finite 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),
iI
an act for smoke abatement in London (1853), an act for
,!
juvenile reformatories (1854), an act establishing a permanent 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 con-
nected 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 anti-
centralizers 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 central-
izers--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 Utility was the touchstone, the

10. Elie Halevy, The Growth of Philoso hic Radicalism (trans.

Mary Morris, Boston: The Beacon Press, 1955 p. 15.
80
-,
"

!,.
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 inter-
vention could be made effective.
Sometimes Benthamism \'1a8 allied with other forces
and movements, or \ms used by them. Sometimes it made lise
of these forces in its Olm interests. Laissez faire for

11. John Bartlett Brebner, "Laissez Falre and State Inter-

vention 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 prin-
ciple 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 per-
sonal 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 circu-
lation. 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 intru-
sion and custom-house tyranny, It she ''larned: 1tYet, in this very
present~ 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. . . 1115
Inspection was a particularly sore point. 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 As-
sociation 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 re-
strained 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 philo-
sophical 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 con-
demn 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 obedi-
ence; the shaping of the national mind to the con-
venience 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 tradi-
tional belief in individual responsibility. Thus in 1847, a
nonconformist minister could maintain that:

18. Joshua Toulmin Smith, Local Self-Government and Centrali-

zation (London: John Chapman, 1851) p. 323.

85

.._a-______________________________._I
 ,
1

State power in religion, state power in education, state J

pOl'ler in inspectors, state pOl<ler in Whitehall, reaching
over England, are all as kindred influences against
Dissent, against Liberty, against national spirit, against
allied interests of self-governed and self-acting people. 19 '.j
.'
i

With such widespread feeling in their favor it would :[

be surprising if the anti-centralizers had not Non some vic- , I

!
tories. Indeed they have been credited with achieving con- ,,i.

siderable success, particularly in the fifties. 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 im-
plicitly of individualism and personal privacy) over cen-
tralized 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- I
I
posed national schemes of education, but at least part of the I'

opposition was on grounds of their centralizing tendencies.

,
There too opposition '<las somewhat less than successful. 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. Roberts,~. cit., p. 69. Quot1ng from the Rev. A. Wells,
On the Education of the Working Class, (London: 1847)
p. 66.
20. 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 edu-
cation. 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 Mean-
tmile, 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. It
was scarcely more successful. A recent study of the activities
of the Local Government Act Office beh/een 1858 and 1871, sug-
gests that far from decreasing -- the degree of interference,
supervision and control by central government continued to in-
22
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 Mid-
Victorian England, the Local Government Act Office, 1858-
1871," 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 ac-
tually weakening. It is plain that even at the beginning of the
century the areas which were private to the individual and in-
violable 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 ef-
fected, 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 paren-
tal 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 pro-
hibited 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 hu-
man 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. It Nas really less a matter
of principle than of practice. It Nas not that the State Nas
asserting something new in its right to intervene in the rela-
tions 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." He
added pointedly, "Perhaps France was sick of liberty. A gagged
press and a police spy in every saloon \'1ere perhaps desirable
things: but that Nas their look out, and not ours. Only let
it continue to be their look out. 1128

The idea of Police like the idea of the Inspectorate,

Nas a sensitive and controversial one and for much the same
reasons. Any kind of centralized police force was unpopular,
28. Hansard, CXLVIII (1858), 1016.

90
 · ·· -1
,

calling up lurid images of I1Cont1nental" despotism and oppres-

sion. The Napoleonic Wars and their aftermath had brought
suspension of the Habeus Corpus Act and the passage of repres-
si 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 mili-
tary) was plainly inadequate for the needs of a growing popu-
lation. 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
and a central inspectorate. After 1829, the Home Secretary
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. Again the area of

29. Asa Briggs, ~T~h~e~~~~~~~~~~~~~~~ (London:

Longmans, Green

91
public responsibility and interference had been increased. But
this had not been done \~ithout 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 Commit-
tee think that the forfeiture or curtailment of such
advantages Nould be too great a sacrifice for improve-
ments in police facilities, in detection of crime,
ho\~ever desirable in themselves if abstractly con-
sidered.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 plain-
clothesman. 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. The Commit-
tee absolved Popay and his superiors of any \~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 Constitu-

tion. ,,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 jI
in its train irritation, hatred and malice propense.3 2 ",:"
Ii
Seventeen years later sentiments not very different .:!
,:

in tone, still found expression. 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 De- -I
l
[
partment 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 In-
novation in the Rural pOlice London: SNaffham for J.
Hatchard and Son, 1839) p. 34.
33. Hansard, CXLII (1856), 307.

93
.~

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 inter-
course of private society.35
The Benthamite vision of a uniform and efficient na-
tional constabulary force was not to be realized. 36 But again
the appeal of efficiency was strong to many who were not Utili-
tarians. 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 con- ':1
duct on those who dissent from them. . . . There is a .1
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 \<That extent Nas personal conduct a matter of public
concern? 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 nine-
ties.
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. The

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 moraliza-
tion of aristocracy; from another the melting down of
society.1I p. 281.

96

d
 ·!.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 ter-
rib1e 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 nonethe-
less.

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 hier-
archy 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. The
purpose Nould be to convince the public, not the judge." 41 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. Dilke had been acquitted in law but
41. 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 ,i

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

Nith crusading fervor over many years.

Thoroughly alarmed, Dilke attempted to salvage his
damaged reputation. By action of the Queen's Proctor the case
was re-opened. 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. Randolph
Churchill \~ote 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 , ,I
of Justice and a clear judgment . . . cannot afford com- "i
plete and adequate protection to the person against \lJhom :i
such accusations have been made. 42 ,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 in-
terest had been intense. The staid Times devoted columns to
42. 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 sensa-
tional. They laid before a fascinated public the details of
Dilkels private life -- from a record of his personal appoint-
ments, to a description of his bedroom furniture.
On February 12, the intervention of the Queen's Proc-
tor 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 adul-
tery 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 dis-
advantage), 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. But the damage \I[as done and such "reason-
able doubts J II signified very little.
In 1889, replying to Dilke's query about the advisa-
bility 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 irresiti-
ble 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 suc-
cessful1y 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. It was the news-
papers which made the difference. 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 publi-
cation 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 1 (London : I
Ro.u tledge and Kegan Paul Ltd., 19 0 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. Per-
haps he underestimated the prn~r of adverse publicity. 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 dis-
grace? 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. But pONerful forces ''Jere
tipping the balance against him. 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. "This
45. Lyon,~. cit., pp. 41-70. The author suggests that Parnell I
and Mrs. O'Shea believed that the Captain could be bribed
into a last-minute NithdraNal, but the money could not be
raised. ·1I

46. 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.
47. Frederick Whyte, The Life of W. T. Stead, Vol. II (London:
Jonathan Cape, n.d.) p. 20. Letter of Nov. 20, 1890.
102
 -
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 con-
victed 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 dis-
credit 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 inquisi-
tion 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 for-
e i gner. . . . 51

IV. CONCLUSION "j

I
The purpose of this report has been to provide the
\
historical background to a discussion on the degree of privacy I

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 techno-
logical 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
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 indi-
vidual 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 im-
mediately 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 ,i

century both the moral and legal right of privacy and the ac-
tual freedom of individual activity has been under attack from
the state and the engines of popular culture.

105
U. of C. Lt\VI UBRJiliY