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Truth and Privilege: Libel Treatises and the Transmission of Legal Norms in the Early Nineteenth-Century Anglo-American World

07 Nov, 2015 GENERAL LAW

Truth and Privilege: Libel Treatises and the Transmission of Legal Norms in the Early Nineteenth-Century Anglo-American World


LYNDSAY CAMPBELL*


I. INTRODUCTION


THIS CHAPTER DISCUSSES the appearance of treatises on libel law in the early nineteenth-century Anglo-American world and the transmission of ideas within them into two different places, Nova Scotia and Massachusetts. As the eighteenth century gave way to the nineteenth in Britain and the United States, newspapers multiplied, and governments attempted to control expression that challenged political orthodoxies. In courtrooms, on streets, in pamphlets and in newspapers themselves, the rights to freedom of expression and of the press were claimed. Although expression could be disciplined in various ways (consider profanity, for example), it was in the context of prosecutions for ‘libels’ that the debates over the proper limits of political critique and the place of the press in society took place. Many English writers weighed in, but two key texts ultimately made the trip across the Atlantic. The first editions of these texts, by Francis Ludlow Holt and Thomas Starkie, were published in London in 1812 and 1813 respectively. As this chapter shows, though, the views of the law that they promulgated were not universally or wholly accepted. I aim here to explore the issues of reading and influence and how purportedly coherent, comprehensive scholarly texts were deployed or ignored after they left London and ventured out across the Atlantic. I begin the chapter by discussing the provenance of these texts. I then compare the uptake of defences to charges of criminal libel in Nova Scotia and Massachusetts. The last part of this paper posits that socio-cultural factors made one particular defence – qualified privilege – arguable in Nova Scotia but basically unarguable in Massachusetts, where the defence of truth was preferred. One factor was legal publishing practices: Nova Scotia, lacking the domestic publishing industry that had emerged in the United States by 1830, relied on the importation of texts; as a result the second English edition of Thomas Starkie’s libel treatise was available to and relied on by Joseph Howe in his famous prosecution for libel in Halifax in 1835. American law took a different direction. I argue that as Americans worked through the implications of basing sovereignty in the people, not only did privilege seem objectionable in principle, but using the law to protect individuals’ reputations from injury started to seem troubling, at least when those injured had a ‘public’ role and had, from some perspective, suffered from no more than the speaking of the truth. However, the distinction between public and private was under pressure as well, more so in Massachusetts than in Nova Scotia, causing different kinds of expression to be problematic. In effect, then, I suggest that we must look to a combination of factors in understanding the reading and interpretation of – at least – a troublesome body of law such as the one that purported to establish the proper limits on expression. The factors that affected how a text was absorbed into a particular legal culture included not only qualities of the text itself but also the material conditions under which it made its appearance, the political situation in which it was interpreted, and the legal traditions already in operation.


II. EARLIER WRITING ABOUT LIBELS


The origins of libel as a ‘field’ of law lie very far back in time.1 Texts on ‘scandalous words’, ‘seditious writings’ and actions on the case for slander have survived from the seventeenth century. The Star Chamber and the changing jurisdiction of the ecclesiastical courts, not to mention increasing literacy and changing print technologies, are important components of the development of the English law. Highly theorised ideas about what was actionable, what was excusable, and why, formed in the later eighteenth and particularly the early nineteenth centuries. AWB Simpson has emphasised the natural-law thinking that made it possible for treatise writers to see a coherent structure in an area of law, which could be represented in an authoritative, analytic text.2 Before the nineteenth century, most defenders of libel prosecutions espoused a commitment to preserve a hierarchically arranged ‘peace’; after the revolutionary period, with an engaged political press a reality, freedom of expression had to be thought through. If there is conceptual coherence in these later books, it springs from their authors’ need to make sense of these two commitments.


Many writings on the legal regulation of offensive written or pictorial expression – ‘libels’ – have survived from the eighteenth century.3 Most addressed particular cases or debates over the substantive law or procedure that arose from them. Some, from their titles, sound like treatises in the sense in which we normally use that term, but upon closer examination, they turn out to be long essays whose purposes were narrower: to intervene in political controversies of the time.4 Like the later treatises, they often sought principles to balance the reputational interests of the state and individuals against the expressive interests of their critics. These principles, grounded in an understanding of history and politics, would then allow the author to sort the correctly decided cases from the wrong ones, of which there could be many, given the history of political prosecutions in England, new controversies and changing norms around the press and its regulation.


The author of one anonymous text published around 1730 observed that although most other ‘heads in the Law’ had already been ‘copiously and variously handled’, ‘upon Libels, nothing can be found collected, except a short Chapter or two in some general Treatises’. He (presumably ‘he’) considered his text an argument for the ‘Liberty of the Press’, since it suggested the lack of necessity for restraining it and a practice, among those in power, of being lenient toward their detractors.5 The author’s scope was broad, but one particularly important question needed answering: ‘Whether a witty Man may not write and publish Things of a scandalous Import, yet so glossed over and disguised, so wrapp’d up in Implications and Allegories, as not to come within Reach of the Laws, nor be construed a Breach of them’ – a fair question in the age of Jonathan Swift. The answer, by the way, was no.6 This discussion thus framed libel law as a response to the question ‘what are the proper limits on a free press?’ Later treatise writers, as well as most other commentators, asked the same question.


The foundations upon which the early nineteenth-century treatises were constructed included such older texts as Hawkins’ Pleas of the Crown and Bacon’s Abridgement. One precursor with treatise-like ambitions was A Digest of the Law Concerning Libels, by ‘A Gentleman of the Inner Temple’. The author’s impetus for writing appears to have been the Wilkes affair in the early 1760s. The text canvassed all matters relevant to proceedings for ‘libels’ – it contained a chapter on outlawry, among other things – and it carefully cited case authority. However, spoken defamation – slander – was outside the scope of the project. The cases digested were arranged in groups under topics rather than being footnoted as illustrating particular principles, as later authors would do. The overarching purpose of libel law, its author indicated, was protecting the peace.7


Appearing in the late 1760s, Blackstone’s Commentaries have their place in this tale. Among the wrongs to an individual, Blackstone included written and pictorial ‘libels’ as well as spoken words and malicious prosecutions.8 The public wrongs were organised according to the rank of the person or body wronged, based on the logic that ‘[a]ll crimes ought . . . to be estimated according to the mischief they produce in civil society’.9 Accordingly, Blackstone began with offences against God and religion.10 He went on to discuss offences against the law of nations, the king and branches of government, the public peace and trade, public health, and then individuals, in their persons and property. Offences committed through expression appeared intermittently throughout the text. The sort of offensive texts referred to explicitly as ‘libels’ were addressed among the offences against the public peace, on the theory that they promoted violence.11 Blackstone observed that freedom of speech meant that no ‘prior restraints’ – no licensing, in particular – would be imposed on expression, but individuals could still be prosecuted or sued for what they published, to protect the public welfare.12


Books on pleadings and process from the 1790s and the first decade of the nineteenth century, when they addressed offences committed through expression, often echoed Blackstone’s assumptions and overall organisation, sometimes explicitly emulating it. The 1793 Dublin edition of John Tremaine’s Pleas of the Crown, for example, was organised according to who had been wronged. The editor of the 1795 edition of William Hawkins’ Pleas of the Crown explicitly noted his intention to use Blackstone’s taxonomy. Hawkins observed that there were some kinds of verbal expression that would not found a libel, including petitions to committees of Parliament, articles of the peace given to justices of the peace, and submissions to any other court.13 Eventually these exceptions were reformulated into privileges.14


III. HOLT AND STARKIE


In Britain, the tumult of the late 1700s and early 1800s included many prosecutions of the press.15 Writers commented, obliquely or otherwise, on aspects of these developments. They wrote in highly critical terms about such matters as the role of juries, the oppressive pre-trial power that the Crown wielded through the ex officio information, the role of intent, the place of truth in criminal proceedings and the partiality of the special jury.16


In 1812 and 1813, two texts appeared that ultimately passed across the Atlantic and made their way into libraries and cases there. These texts, by Francis Ludlow Holt and Thomas Starkie, communicated not just procedural rules or digests of cases but frameworks for understanding these cases as a body of law.17 The appearance of the word ‘treatise’ in the title of Starkie’s seems to signal that such a project was afoot. These texts adopted different organisational schemes, suited to their purposes. These schemes were by no means inevitable: a third libel ‘treatise’ published around the same time adopted still another.18 Initially Holt’s seems to have had a greater audience; a second edition appeared in 1816. Ultimately, though, Starkie’s influence surpassed Holt’s; editions continued to appear until the early twentieth century.


Holt was clearly responding to popular attacks on libel law. He observed:



The law of libel has been for a long time rather a theme of declamation than a topic of legal argument. – The subject, indeed, lies so near the confines where politics encroach upon the science of law, that it is difficult to avoid stepping from one to the other; and the learning upon this question, if any it could be called, had so strayed into pamphlets and popular harangues, that all the precision of a legal subject was lost in the loosest generalities.19


It was time for a masterly, professional intervention.


The second edition began with about 60 pages of general matters. Holt provided a history of the law of libel, objections to it and a view of the liberty of the press that echoed Blackstone’s. Holt distanced contemporary law from its oppressive heritage but insisted on the importance of libel law to preserve reputation and the peace. Next came about 180 pages that presented the law, arranged according to Blackstone’s logic: offences against God first and ordinary people last, with enormous footnotes in some places, especially where more recent cases were discussed. The book concluded with another 60 pages on procedure, evidence and punishment. There are many fairly subtle but important differences between the two editions that suggest contemporary events in the background. For example, the second edition had additional passages on the correctness of the doctrine that truth could not be a defence to a charge of criminal libel (true libels might provoke people to break the all-important peace even more than false ones) and on how far parliamentary privilege protected members who published their speeches.20 Instances in which liability or guilt had not been found were scattered among the instances in which it had.


It is in Thomas Starkie’s first two editions that Paul Mitchell has located the origins of the modern law of libel.21 Starkie was concerned with the necessary limits placed on the freedom of discussion as far as it extended to the reputations of individuals or to the interests of the public.22 Explicitly taking on Blackstone, Starkie asserted, ‘[t]here is a wide difference between an open press, that is, a press not subject to the previous control of a licenser, and a free press; and yet it is remarkable, that these are treated by a very eminent writer upon our constitution, as identical’.23 Unlike Holt, Starkie carefully articulated not only the elements of the case for the plaintiff or the public but also, as Mitchell observes, the grounds for attributing – or not – the injury to the defendant. In the first edition, Starkie devoted a chapter to cases involving exemptions from liability for literary critics and for employers who gave unfavourable character references for servants.24 In the second edition – published in London in 1830 – these cases formed the basis for a much broader ‘privilege’ for a writer who owed the reader a duty to disclose what he or she knew about a matter in which both had an interest. This privilege was ‘qualified’, as it could be defeated by evidence of actual malice.25


IV. NOVA SCOTIA


By 1820, Nova Scotia was a small colony of around 100 000, whereas Massachusetts had passed the half-million mark.26 Nova Scotia had an elected assembly, which was increasingly at odds with the lieutenant governor and his selected council, who regularly used their power of disallowance to stymie the assembly’s efforts. The province had a small legal elite composed of men trained in England and the United States. There was a large American population in Halifax and in certain other areas, and there was a substantial flow of people, books and newspapers back and forth between the two places. Nova Scotia had no legal reporting and few newspapers, so our knowledge is incomplete, but the court records that exist suggest there were also few libel cases.


The number of newspapers in the province began to increase in the late 1820s, and calls for governmental reform began to be heard. A political crisis in 1830 over the assembly’s right to pass a money bill was the harbinger of greater conflict to follow. In 1835, Joseph Howe, an aspiring politician and the well-known editor of the Halifax newspaper, The Novascotian, published an article attacking the magistrates who governed that city, accusing them of irresponsibility, incompetence and self-interestedness in the conduct of their official duties. The magistrates got the attorney general to initiate a prosecution.


The case has been discussed at length elsewhere,27 and I wish to make only two main points about it here. The first is that it picked up the trajectories of the English libel debates. Howe, who defended himself, focused on the jury, encouraging these men to act independently to determine guilt on all elements of the case, pursuant to Fox’s Libel Act, which the attorney general agreed they were entitled to do. The attorney general, likewise, emphasised that he had proceeded fairly, by indictment, rather than by ex officio information. In defending himself, Howe told the jury that intent was now the jury’s province to decide, and, as Lord Erskine had done in defending Thomas Paine, Howe told the jury that the nature of the intent that the Crown had to prove was broader – more malicious – than the intent simply to publish the article (the Crown put forth the opposing view).28


The second point is that Howe claimed the defence of qualified privilege articulated and elaborated in the 1830 second London edition of Starkie. Thus, asserted Howe:



Starkie, an eminent authority on the Law of libel, says: ‘The occasion and circumstance of a communication may supply a qualified defence, dependent on the actual intention to injure. The constituting [sic] a large and extensive barrier for the legal protection and immunity of those who act bona fide and sincerely according to the occasion and circumstances in which they are placed, is not only just in a moral point of view, and advisable in a measure of policy, but is absolutely necessary for the purposes of civil Society.’29


Howe argued that, as a newspaper editor and as one who had been on the grand jury in 1832 (blocked by the magistrates in its efforts to gain information about Halifax’s finances), he had a responsibility to the public to disclose what he knew about the governance of Halifax. He asserted that although no truth defence was available to him, he had ‘the privilege of explaining to the Jury anything which might illustrate the motives and intentions by which he was influenced, to satisfy them, that so far from wishing to provoke a breach of the peace – so far from incurring the guilt of which he [stood] accused, that his motive was praiseworthy, his actions honourable, and his act demanded by the circumstances in which he was placed.’30


Explaining his intent and what he knew – the grounds for the privilege claim – at great length, Howe also told the jury that only evidence of his actual malice would rebut the claim of privilege. The attorney general and the chief justice disagreed, telling the jury that only the intent to publish was in question and that qualified privilege was unknown to law. The jury acquitted Howe anyway. The qualified privilege defence was not, therefore, accepted into Nova Scotian law, but it was articulated, and it was a significant factor in making it possible for Howe to present the jury with the evidence necessary for an acquittal. I have argued elsewhere that newspaper editors – especially Howe himself – seem to have been emboldened by the trial, and to have responded to its outcome by beginning to engage far more confidently in public debate.31 The course of defending against a charge of criminal libel in Massachusetts, however, ran on a different track.


V. MASSACHUSETTS


As is well known, the 1790s were a tempestuous period in the history of the young republic. Theories of federalism and sovereignty were contested, and partisan politics took hold. The libel treatises of Starkie and Holt arrived and were taken up in a place with a history of efforts to use criminal libel to regulate expression.