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CONTEMPORARY LAW SERIES

ALSO BY LEONARD W. LEVY The Law

of the

Commonwealth and Chief Justice Shaw (1957)

Legacy of Suppression: Freedom of Speech and Press

in Early

American History

(igSo)

The American Political Process Major Crises

in

The

Side (ig6j) ed.

ed.

(1964),

Political Parties

ed.

American History: Documentary Problems (1963),

Congress (1964),

The Judiciary

(1963),

The Darker

Jefferson and Civil Liberties:

ed.

and Pressure Groups (1964),

Presidency (1964),

ed.

ed.

American Constitutional Law: Historical Essays (1966)

Freedom of the Press from Zenger Theories (1966),

Freedom and Reform Origins of the Fifth Essays on the

to Jefferson: Early

American Libertarian

ed.

(1967),

ed.

Amendment: The Right Against

Making of the Constitution

The Fourteenth Amendment and

(igSg),

Self-incrimination (1968)

ed.

the Bill of Rights (19J1),

ed.

Judgments: Essays on Constitutional History (1972)

The Supreme Court Under Warren Blasphemy

in

(1972),

Massachusetts (1973),

The Nixon Court and Criminal Justice

Against the Law:

Jim Crow Education (1974), Treason Against

ed.

ed.

(1974)

ed.

God — A History of the Offense

of Blasphemy (1981

Emergence of a Free Press (1985) Constitutional Opinions: Aspects of the Bill of Rights (1986)

The Establishment

Clause: Religion and the First

Amendment

Encyclopedia of the American Constitution (1986),

The Framing and

(1986)

ed.

Ratification of the Constitution (1987), ed.

The American Founding

(1988),

ed.

Original Intent and the Framers' Constitution (1988)

Supplement One: Encyclopedia of the American Constitution (1992),

ed.

Blasphemy: Verbal Offense Against the Sacred from Moses to Salman Rushdie (1993)

Encyclopedia of the American Presidency (1993),

ed.

Seasoned Judgments: Constitutional Rights and American History (1994)

Supplement Two: Encyclopedia of the American Constitution (1998),

ed.

Origins

ofthe Bill

ofRights

Leonard W. Levy

Yale University Press

New Haven and London

Copyright

©

1999 by Yale University.

All rights reserved.

This book may not be reproduced,

in

whole or

in part, including illustrations, in

(beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright

any form

Law and

except by reviewers for the public press), without written permission from the publishers.

Designed by James J. Johnson and

set in

Monotype Ehrhardt Roman

type by Keystone

Typesetting, Inc.

Printed in the United States of America by R. R. Donnelley

&

Sons, Harrisonburg,

Virginia.

Library of Congress Cataloging-in-Publication Data

Levy, Leonard Williams, 1923-

Origins of the Bill of Rights / Leonard W. Levy.

cm.

p.

— (Contemporary law series)

Includes bibliographical references and index. ISBN 0-300-07802-1 (cloth 1.

United

2. Civil

:

alk.

paper)

States. Constitution. 1st- 10th

rights— United States— History.

KF4749.L488

Amendments.— History.

I.

Title.

342.73'085-dc21

in this

is

available

book meets the guidelines

Committee on Production Guidelines Resources.

10

9

8

7

Series.

98-44965

A catalogue record for this book The paper

II.

1999

6

5

4

3

2

for

from the British Library.

for

permanence and durability of the

Book Longevity of the Council on Library

Dedicated

to

Elyse

My wonderful wife offifty-four years

Contents

Preface

ix

Chronology

xi

ONE

Why We Have the Bill of Rights

i

TWO Habeas Corpus THREE

Bills

FOUR The

44

of Attainder First

68

Amendment: The Establishment

Clause

79

The First Amendment: The Free Press Clause SIX The Right to Keep and Bear Arms SEVEN The Fourth Amendment: Search and Seizure EIGHT The Fifth Amendment: The Right Against FIVE

133

150 180

Self-incrimination

NINE Double Jeopardy

TEN The Double Jury System: Grand and

103

203 Petty

ELEVEN The Eighth Amendment

210 231

TWELVE The Ninth Amendment: Unenumerated Rights

241

Appendix: Key Documents

261

Bibliography

297

Index

299

Preface

This

is

my

thirty-sixth book,

and

at the

age of seventy-five

beginning to think of retiring as an author, although

one more book to myself,

when

I

have

I

am

at least

do— on the origins of trial by jury. And, if I know one

that

past forty-plus years, subjects, including

is I

done, another will

come

to

mind. In the

have written on a considerable variety of

Chief Justice Lemuel Shaw, Jim Crow,

Thomas

Jefferson, blasphemy, the right against self-incrimination, the forfeiture of property,

and criminal

justice. I

may now be

getting to

the point where repeating myself becomes inevitable, especially

on

the subject of the beginnings of the history of our rights. Parts of this

book draw heavily on previous ones. The subject of the origins

of the Bill of Rights has long absorbed me.

volumes on aspects of the page of

this

book

Bill

I

of Rights, as the

indicates. In addition to

Amendment, I devoted several chapters on

have written several list

my

opposite the

title

books on the First

provisions of the Bill of

Rights in Original Intent and the Framers Constitution, but this '

my

first

is

attempt to be systematic and comprehensive concerning

the origins of the Bill of Rights.

provisions of the

I

have included coverage of the

unamended Constitution

(writ of habeas corpus, ex post facto laws,

that also protect rights

and

bills

of attainder).

PREFACE wrote this book alone, contracting no debts to anyone, espe-

I

cially

lich

not to

my

grandchildren: Natalie, Elon, and Avishai Gluck-

and Aaron, Adam, Jacob, and Nathan Harris. But

them

to see their

names

in print.

I

I

do want

should also acknowledge that

several useful suggestions for improving the manuscript derived

from an unknown reader employed by Yale University Press and from

my editors John

Covell and Laura Jones Dooley.

Chronology

1 1

64-1 179 Henry

II's

innovations leading to grand and petty

juries

121 5

Magna

Carta

1354 Reenactment of Magna Carta and of law" 1444 Bail Act 1606 Virginia Charter protects English

first

use of "by due process

liberties

1627 Darnell's case 1628 Petition of Right 1639 Maryland Act for EngHsh Liberties 1641 Massachusetts Body of Liberties

1642 Sir Edward Coke's

Institutes

1644 ]o\mM\\ton\Areopagitica 1649 The Levellers' Agreement of the People 1649 Maryland Toleration Act 1659 Massachusetts hangs four Quakers 1670 Bushell's case 1676 Fundamental Laws of West

New Jersey

1679 Habeas Corpus Act 1682 William Penn's Frame of Government for Pennsylvania 1683

New York Charter of Liberties and Privileges

1683 Pennsylvania Frame of Government

1687 Case of John Wise

1689 English Toleration Act

CHRONOLOGY 1690 John Locke's Treatise of Civil Government 1691 New York Declaration of Rights 1692 Massachusetts Habeas Corpus Act 1693 Case of Sir

Thomas Lawrence

1698 Henry Care's English

Liberties,

or,

The Free-Born Subject's

Inheritance 1 701 1

Pennsylvania Charter of Privileges

734- 1 73 5 Case of John Peter Zenger

1763 Case of John Wilkes 1

765-1 769 Sir William Blackstone's Commentaries on England

the

Laws of

1765 Declaration of Rights and Grievances of Stamp Act Congress

1770 Caseof Alexander McDougall 1772 Sommersett's case

1772 Boston's Rights of the Colonies and

A List of Infringements

and Violations of Rights 1774 Address to Inhabitants of Quebec 1774 Declaration and Resolves of First Continental Congress 1775 Declaration of Continental Congress 1776 Declaration of Independence

1776 Virginia Declaration of Rights

1776

Bills

of Rights in Pennsylvania, Delaware, Maryland, and

Vermont 1780 Massachusetts Declaration of Rights 1787 Northwest Ordinance 1787 United States Constitution 1787 George Mason's Objections to proposed Constitution 1787 Reasons of Dissent by Minority of Pennsylvania Convention 1788 Alexander Hamilton's The Federalist, Nos. 84, 85 1

787-1 789 Thomas Jefferson-James Madison correspondence on bills

of rights

1788 Amendments proposed by

state ratifying

conventions

1789 Madison proposes amendments to Constitution 1789 Congress proposes amendments to Constitution 1791 Bill of Rights ratified by states

1798 Alien and Sedition Acts 1798 Virginia and Kentucky Resolutions

CHAPTER ONE

Why We Have the Bill ofRights

"^HE BILL OF RIGHTS amendments

consists of the first ten

to the Constitution.

The

traditions that

gave shape and substance to the Bill of Rights had English roots, but a unique American experience col-

ored that shape and substance.

Ralph Waldo Emerson wrote

The

first

in

"We began

with freedom," as

"The Fortune of

the Republic."

charter of Virginia (1606) contained a provision that

the colonists and their descendants "shall have and enjoy ties,

Franchises, and Immunities ... as

and born, within

this

if

all

Liber-

they had been abiding

our Realm of England." Later charters of

Virginia contained similar clauses, which extended to legal rights

of land tenure and inheritance,

trial

the vague language was repeated in colonies from

strued

it

New

England

by

jury,

and

little else.

numerous other charters

to the South,

But for

and Americans con-

handsomely. As the Continental Congress declared,

Americans believed that they were

entitled to

all

Englishmen, their constitutional system, and their

the rights of

common

law.

American experience with and interpretations of charters eased the

way to written

bills

of rights.

constitutions of fundamental law that contained

2

WHY WE HAVE THE

::

BILL OF RIGHTS

Freedom was mainly the product of New World

conditions, the

English legal inheritance, and skipping a feudal stage. Because of

American's postfeudal beginnings,

it

pressions associated with an ancien

dominated by

a reactionary

government by despotic

was unencumbered by op-

regime— a

and hereditary

kings,

system

rigid class

aristocracy, arbitrary

and a single established church

extirpating dissent. "America was opened,"

Emerson

the feudal mischief was spent, and so the people

wrote, "after

made a good

start.

We began well. No inquisitions here, no kings, no nobles, no dominant church. Here heresy has

lost its terrors."

Americans were the

freest people, therefore the first colonials to rebel.

Edmund Burke

said,

A free people, as

can sniff tyranny in a far-off breeze— even

nonexistent. American "radicals" actually believed that the

Act reduced Americans to

slavery.

They

resorted to arms in 1775,

the Continental Congress believed, not to establish

but to defend old ones. In ties

fact,

if

Stamp

they did establish

new

liberties

many new

liber-

but convinced themselves that those liberties were old. That

was an English custom: marching forward into the future facing

backward

to the past, while adapting old law to

Thus, Magna Carta had come trial

by

jury,

and

to

mean indictment by grand

The

jury,

a cluster of related rights of the criminally ac-

cused, and Englishmen believed, or so.

changing values.

made

believe, that

it

was ever

habit crossed the Atlantic.

So did the hyperbolic

style

of expression by a free people out-

raged by injustice. Thus, James Madison exclaimed that the "diabolical Hell conceived principle of persecution rages" because

some ing.

in

Baptist ministers were jailed briefly for unlicensed preach-

By European

standards, however, persecution hardly existed

America, not even in the seventeenth century, except on a

and sporadic

basis.

America never experienced anything

Inquisition, the fires of Smithfield, the Saint Bartholomew's

Massacre, or the deaths of more than ministers in the

jails

five

local

like the

Day

thousand nonconformist

of Restoration England. Draconian colonial

WHY WE HAVE THE Statutes existed but tices

were the

On

BILL OF RIGHTS

::

3

were rarely enforced. Broad libertarian prac-

rule, not the exception.

any comparative

basis, civil liberty flourished in

America,

of exceptional abridgments,

a fact that intensified the notoriety

such as the hanging of four Quakers in Massachusetts

in

1659 or

the 1735 prosecution of John Peter Zenger for seditious

Although

a stunted

libel.

concept of the meaning and scope of freedom

of the press existed in America until the JefFersonian reaction to the Sedition Act of 1798, an extraordinary degree of freedom of

the press existed in America, as

it

did in England.

And nowhere

did freedom of religion prosper as in America.

The predominance

of the social compact theory in American

thought reflected a condition of freedom and,

like the

experience

with charters, contributed to the belief in written biUs of rights.

The

social

compact theory hypothesized

a prepolitical state

of

nature in which people were governed only by laws of nature, free

of human restraints.

From the premise that man was born

free,

the

deduction followed that he came into the world with God-given or natural rights.

Born without the

right to possess liberty

naked and instincts

stationless,

and

to

restraint of human laws,

work

for his

own

he had a

property.

Born

he had a right to equality. Born with certain

and needs, he had

a right to satisfy

them— a

right to the

pursuit of happiness. These natural rights, as John Dickinson declared in 1766, "are created in us by the decrees of Providence,

which establish the laws of our nature. They are born with with us; and cannot be taken from us by any taking our lives."

When

people

left

us; exist

human power without

the state of nature and

com-

pacted for government, the need to secure their rights motivated

them.

A half-century before John Locke's Second

ernment,

Thomas Hooker

compact

theory.

Over

became accustomed

Treatise on

Gov-

of Connecticut expounded the social

a period of a century

to the idea that

and

a half,

America

government existed by con-

sent of the governed, that the people created the government.

4

::

that they did so

WHY WE HAVE THE by

a written

their natural rights,

BILL OF RIGHTS

compact, that the compact reserved

and that

it

constituted a fundamental law to

which the government was subordinate. Constitutionalism, or the theory of limited government, was in part an outgrowth of the social

compact.

In America, political theory and law, as well as religion, taught that

government was

limited.

But Americans took

their views

on

such matters from a highly selective and romanticized image of seventeenth-century England, and they perpetuated

it

in

America

even as that England changed. Seventeenth-century England was the England of the great struggle for constitutional liberty by the

common

law courts and Puritan parliaments against Stuart kings.

Seventeenth-century England was the England of Edward Coke,

John Lilburne, and John Locke. gion, law,

and

It

was an England

in

which

reli-

converged to produce limited monarchy

politics

and, ironically, parliamentary supremacy.

To Americans,

Parliament had irrevocably limited

by reaffirmations of the

Magna

itself

however.

Carta and passage of the Petition of Right of 1628, the

Habeas Corpus Act of 1679, the

Bill

of Rights of 1689, and the

Toleration Act of 1689. Americans learned that a free people are those

who

under

live

and controlled that

a

its

government so constitutionally checked

powers must be reasonably exercised with-

out abridging individual rights. In fact, Americans had progressed far beyond the English in

securing their rights. ited only the

The

English constitutional documents lim-

crown and protected few

Right reconfirmed

rights.

The

Petition of

Magna Carta's provision that no freeman could

be imprisoned but by lawful judgment of his peers or "by the law of the land";

it

also reconfirmed a 1354 version of the great charter

that first used the phrase "by

the law of the land."

The

due process of law" instead of "by

Petition of Right invigorated the liberty

of the subject by condemning the military as

trial

of civilians as well

imprisonment without cause or on mere executive

authority.

WHY WE HAVE THE

BILL OF RIGHTS

5

::

Other sections provided that no one could be taxed without ParHament's consent or be imprisoned or forced to incriminate himself

by having

to

Parliament.

answer for refusing an exaction not authorized by

The Habeas Corpus Act

safeguarded personal

without which other liberties cannot be exercised.

an old right for the

first

an effective remedy for

liberty,

The act secured

time by making the writ of habeas corpus

illegal

imprisonment.

The only loophole in

the act, the possibility of excessive bail, was plugged by the Bill of

Rights ten years

later.

That enactment,

its

exalted

name notwith-

standing, had a narrow range of protections, including the free-

dom

of petition, free speech for

members of

Parliament, and, in

Amendment,

language closely followed by the American Eighth

bans on excessive

bail,

excessive fines, and cruel and unusual

punishments. As an antecedent of the American English one was a skimpy

affair,

the rule of law and of fundamental law.

"A

actually

Bill

Bill

though important

The

of Rights, the

as a

symbol of

Toleration Act was

of Indulgence," exempting most nonconformists

from the penalties of persecutory laws of the Restoration, leaving those laws in force but inapplicable to persons qualifying for in-

dulgence. England maintained an establishment of the Anglican

Church, merely tolerating the existence of non-Anghcan itarians,

who were

still

obligated to pay tithes and endure

trin-

many

civil disabilities.

In America, England promoted Anglicanism in

New

York and

in the southern colonies but wisely prevented its establishments in

America from obstructing

were an economic

religious peace because

charters to colonial proprietors

on

immigrants

of religion. England granted

asset, regardless

a

nondiscriminatory basis— to

Cecil Calvert, a Catholic, for Maryland; to Roger Williams, a tist,

for

Rhode

Island;

vania and Delaware.

from

all

and

to

Bap-

William Penn, a Quaker, for Pennsyl-

The promise

of

life

in

America drew people

of Western Christendom and exposed them to a greater

degree of liberty and religious differences than previously known.

6

::

WHY WE HAVE THE

James Madison, whose

dom

BILL OF RIGHTS

practical achievements in the cause of free-

of rehgion were unsurpassed, said that

arose from "that

it

multipHcity of sects which pervades America."

But

some

a principled

colonies.

liberal

commitment

came

to religious liberty

Maryland's Toleration Act of 1649 was

than England's Toleration Act of forty years

1776 only Rhode Island, Pennsylvania, Delaware, and guaranteed fuller freedom than Maryland by

was the

first to

embodied

its

first in

far

later.

more Until

New Jersey

act of 1649,

which

use the phrase "the free exercise of religion," later

in the First

Amendment. The

act also

symbolized the

extraordinary fact that for most of the seventeenth century in

Maryland, Catholics and Protestants openly worshiped chose and lived in peace, itarian Christians

if

not amity.

The

but punished others;

it

as they

act applied to all trinalso penalized the re-

proachful use of such divisive terms as heretic, puritan, papist,

The Maryland

anabaptist, or antinomian.

act

Charter of Rhode Island, which remained 1842,

made

mental

was

a statute,

but the

constitution until

its

the guarantee of religious liberty a part of the funda-

law. It

enjoyment of

secured for their civil

all

and

inhabitants "the free exercise and

by providing that

religious rights"

every peaceable person might "freely and fullye hav and enjoye his

and theire owne judgements and consciences, ligious

in matters of re-

concernments." Thus, the principle that the

state has

legitimate authority over religion was institutionalized in

American

colonies, including those

no

some

under Quaker influence.

Massachusetts, the colony that least respected private judg-

ment

in religious matters,

rights. Its

was the

Body of Liberties, adopted

the magistrates in

safeguard

in 1641,

many

was meant

other

to limit

whom all power had been concentrated. As John

Winthrop observed, the

objective was to frame limitations "in

remarkable resemblance to

Magna

received for fundamental laws." effect, a

first to

comprehensive

bill

Charta, which

The Body

.

.

.

should be

of Liberties was, in

of rights. In comparison, the later

WHY WE HAVE THE English

Bill

BILL OF RIGHTS

::

7

of Rights was rudimentary and the liberties of En-

glishmen few in number.

Among

the guarantees

first

protected in

writing by Massachusetts were freedom of assembly and of speech (at least in

public meetings), the equal protection of the laws, just

compensation for private property taken for public use, the free-

dom trial

to emigrate, the right to bail, the right to

by jury

employ counsel,

in civil cases, the right to challenge jurors, restrictions

on imprisonment

for debt,

speedy

trial,

no double jeopardy, and no

cruel or excessive punishments. In addition to traditional liberties,

such as

by jury

trial

in criminal cases,

of the rule of law, the

and Magna Carta's principle

Body of Liberties

also protected

some

rights

of women: widows received a portion of the estate of husbands,

even

if

cut off by will; physical punishment of

women by

husbands was prohibited; and daughters received a right if

their

to inherit

parents died intestate and without male heirs. Servants, slaves,

foreigners,

and even animals received humane consideration.

The Body of Liberties was a mental Laws of West

statute,

New Jersey

(1677),

work of William Penn, functioned cause

it

but the Charter of Funda-

which was probably the

as a written constitution be-

began with the provision that the "common law or funda-

mental rights" of the colony should be "the foundation of govern-

ment, which liberty

is

not to be altered by the Legislative authority."

documents of England limited only the crown, not the

legislature.

The

principle of limiting

all

governmental authority

was written into Penn's Frame of Government 1682, a

The

document

last "for ever,"

that extensively

including for the

a guarantee of indictment

for Pennsylvania in

enumerated rights that were

first

time a ban on excessive

by grand jury

to

fines,

in capital cases, delivery to

the accused of a copy of the charges against him, and assurance that a jury's verdict of not guilty

was

final.

Penn's charter carefully

particularized the rights of the criminally accused. Americans

were learning that charters of liberty must assure ularized procedures, without

fair

and reg-

which there could be no

liberty.

8

WHY WE HAVE THE

::

BILL OF RIGHTS

Vicious and ad hoc procedures had been used to victimize re-

Hgious and political minorities. One's

home

could not be his castle

or his property be his own, nor could his right to express his

opinion or to worship his arrested, tried,

The

Lawrence broke

letter.

had him searched against

him of unspecified bail.

some

if

1693

in

by an

his accusers,

"which

is

his protests,

crimes, deprived

found the

him of his

illegal,

offices,

convicted

and

jailed

assem-

to incriminate himself

of having been convicted without

trial

by

knowing the charges against him or the names of

and of having been denied

The assembly

bail

&

and habeas corpus,

Libertyes of every En-

vindicated English liberties by sup-

porting Lawrence on every point, found

him

letter,

his conviction to the

the great security of the lives

glish Subject."

Secre-

On his refusal to produce it, the council

Lawrence appealed

illegal search,

jury and without

illustrates.

with the government and denounced

on the grounds of having been forced

bly

he could be searched,

arbitrary way.

the council for examination, he was accused of

having a treasonable

him without

in

and a member of the governor's council,

politically

Summoned by

be secure,

Thomas Lawrence

case of Sir

tary of Maryland, a judge,

it.

God

and imprisoned

all

proceedings against

and freed and restored him.

The American

colonial experience, climaxed

by the contro-

versy with England leading to the Revolution, honed American sensitivity to the

rights

grounded

need for written constitutions that protected

in the

British constitution

"immutable laws of nature"

as well as in the

and colonial charters. To the English, the

Americans had the wrong ideas about the British constitution. English and American ideas did differ radically, because the Americans had a novel concept of constitution.

them

a

by

and paramount

it,

The word

supreme law creating government, limiting to

it.

A

it,

signified to

unalterable

town orator of Boston announced

that independence offered the people a chance of reclaiming rights

"attendant upon the original state of nature, with the opportunity

WHY WE HAVE THE

BILL OF RIGHTS

::

9

of establishing a government for ourselves." "To secure these rights,"

Thomas

Jefferson declared, "governments are instituted

among men."

The

Virginia constitution of 1776, the

constitution,

began with

branches of government (see Appendix:

such document

first

it

men"

are equally free

rights that cannot be divested even

suit

enjoyment of life,

of happiness; and that

retain a right to jectives.

sors,

The declaration

sometimes

all

in

"firsts,"

the

such

and have inherent

by compact; that among these

liberty,

and property and the pur-

power derives from the people, who

change the government

and freedom of the

state

Key Documents). As

many constitutional

contained

as the statements that "all

rights are the

permanent

first

a Declaration of Rights that restrained all

if it fails to

secure

its

ob-

recognized "the free exercise of rehgion"

press,

and included clauses that were precur-

rudimentary form, of the Fourth through the

Bj

Eighth Amendments of the Constitution of the United States. Inexplicably, the convention voted

and on ex post

facto laws

down a ban on

bills

of attainder

and omitted the freedoms of speech,

assembly, and petition, the right to the writ of habeas corpus,

grand jury proceedings, the right to compulsory process to secure evidence in one's

own

behalf, the right to counsel,

from double jeopardy. Although

and freedom

was guaranteed,

|i

the ban on an establishment of religion awaited enactment of the

||

Virginia Statute for Religious

Pennsylvania's ginia's.

bill

religious liberty

Freedom

in 1786.

of rights was more comprehensive than Vir-

Pennsylvania omitted the right to bail and bans on ex-

cessive fines

and cruel punishments but added freedom of speech,

assembly, and petition; separated church and state; recognized the right of conscientious objection; protected the right to counsel in all

criminal cases; secured the right to keep arms; and guaranteed

the right to travel or

emigrate— all constitutional

"firsts."

Pennsyl-

vania also recognized that "the people have a right to hold themselves, their houses, papers,

and possessions

free

from search and

10

WHY WE HAVE THE

::

seizure," in contrast to Virginia's rants.

Delaware's

BILL OF RIGHTS

mere prohibition of general war-

of rights was the

bill

a prohibition

contribution was the

bills

of attainder. Vermont's

outlaw slavery and the

first to

tional provision for just

on

ban ex post facto

homes during peacetime;

laws and the quartering of troops in

Maryland added

first to

compensation

in cases

first

constitu-

of eminent domain.

Connecticut and Rhode Island retained their charters as their constitutions, while

olina protected

New Jersey,

some

Georgia,

New

York, and South Car-

rights in their constitutional texts but

had no

separate bills of rights and no noteworthy innovations.

Massachusetts, the

last

of the original states to adopt a consti-

tution (1780), contributed the most to the concept of a rights. It first to

had the most comprehensive

bill

of

of rights and was the

bill

secure citizens against "all unreasonable searches and sei-

zures," the formulation closest to that of the later Fourth

ment. Massachusetts was also the

first state to

Amend-

replace the

weak

"ought not" found

in all previous bills of rights (for example, "the

liberty of the press

ought not be restrained") with the injunction

"shall not,"

which Madison

sachusetts was the

later followed.

first state

that

framed

Most important, Masfundamental law by a

its

specially elected constitutional convention,

(and submitted the document to the towns for

legislative authority

popular

which exercised no

ratification). In

every other state before 1780, legislatures,

sometimes calling themselves conventions, wrote the fundamental law and promulgated

it.

Theoretically, a

bill

changed by ordinary

legislature could be

of rights framed by a

legislation, a fact de-

plored by Jefferson as a capital defect in Virginia's model.

procedure

first

adopted by Massachusetts was copied by

Hampshire when

it

revised

its

constitution in 1784, with the

The

New first

guarantee against double jeopardy; thereafter the Massachusetts

procedure prevailed.

The framing of the

first

constitutions with bills of rights ranks

among America's foremost

achievements, the more remarkable

WHY WE HAVE THE

BILL OF RIGHTS

11

::

because they were unprecedented and they were reaHzed during wartime. Nevertheless, the phrasing of various rights and the inclusion or omission of particular ones in any given state constitution

seems

careless.

Why

so few states protected the rights

against double jeopardy and bills of attainder, and

why

among

omitted habeas corpus and freedom of speech,

inexplicable except in terms of shoddy craftsmanship.

many

so

others,

Even

so,

is

the

existence of eight state bills of rights with constitutional status

invigorated Anti-Federalist arguments that a

be appended to the Constitution of 1787.

bill

The

of rights should

state ratifying

con-

ventions produced about seventy-five recommendations, providing

Madison with an

invaluable

list

from which

to create the pro-

posals that he submitted to Congress.

Congress

itself

supplied a

final

precedent, the Northwest Or-

dinance of 1787, which planned the evolution of territories to statehood.

The

ordinance was the

tain a bill of rights.

To extend

first

.

.

.

con-

articles that

were

to re-

unalterable," guaranteeing to territorial inhabi-

tants habeas corpus, trial cial

to

"the fundamental principles of civil

and rehgious hberty," Congress included

main "forever

document

federal

by

jury, representative

government, judi-

proceedings "according to the course of the

common

law,"

and, as an additional assurance of due process, an encapsulated provision from

Magna

Carta protecting liberty and property from

being deprived except "by the judgment of the land."

The

.

.

.

peers, or the law of

ordinance also included articles protecting the

right to bail except in capital cases, enjoined that

all

fines

should be

"moderate," and prohibited "cruel or unusual punishment." Another article provided a federal precedent for

still

another provi-

sion of the Bill of Rights: just compensation for property taken for

public purposes.

The

ordinance also protected the sanctity of pri-

vate contracts, outlawed sex discrimination in land ownership,

banned

slavery,

and provided

as well as colonial

and

for religious liberty.

state experience

Thus the federal

with written instruments to

12

::

WHY WE HAVE THE

BILL OF RIGHTS

safeguard rights enhanced the claim that a bridle the

The

new

Bill

of rights should

bill

national government.

of Rights did just

that:

it

was

on

a bill of restraints

the United States. Congress submitted those restraining

amend-

ments

and the

to the states for ratification

requisite

number of

ment power Bill

is

25, 1789,

them by Decem-

state legislatures ratified

The triumph

ber 15, 1791.

on September

of individual liberty against govern-

one of history's noblest themes, epitomized by the

of Rights. Yet James Madison of Virginia, justly remembered

Au-

as the "father" of the Bill of Rights, privately referred on

gust 19, 1789, to the "nauseous project of amendments." In the First Congress, he Bill

where"— a the

had proposed the amendments that became the

of Rights, in part because

first

"it will kill

the opposition every-

suggestion that party politics saturated the making of

ten amendments.

Thomas Jefferson, who must

have been

profoundly gratified by the ratification of the amendments, which

he had urged, was the secretary of state who

officially notified

governors of the states that ratification was an accomplished

he had the honor, he "concerning certain

and "the

articles in addition

wrote, of enclosing copies of an act

listlessly

fisheries,"

ratifications

another establishing the post

by three fourths of the

.

.

.

office,

States, of certain

and amendment of the Constitution." The

history of the Bill of Rights from

Constitutional Convention to sionless,

the

fact:

its

rejection

by the Philadelphia

belated ratification

its

because the omission of a

bill

is

not as pas-

of rights in the original

Constitution had been the most important obstacle in the way of its

adoption by the

The omission

states.

of a

bill

of rights was a deliberate act of the

Constitutional Convention.

done when

it

The

received from the

proposed Constitution and the

would submit

it

to Congress.

Convention's work was almost

Committee of Style copies of the letter

by which the Convention

The major

task that

adopt, engross, and sign the finished document.

remained was

The weary

to

dele-

WHY WE HAVE THE

BILL OF RIGHTS

summer's work

gates, after a hot

::

13

in Philadelphia,

were eager to

return home. At that point, on September 12, 1787, George

Mason

of Virginia remarked that he "wished the plan had been

prefaced by a Bill of Rights," because the people.

Mason thought

stirring

He

lar.

speech for

would "give great quiet"

to

that with the aid of state bills of rights

might be prepared

as models, "a bill

it

civil liberties in

in a

few hours."

He made no

general or any rights in particu-

did not even argue the need for a

bill

of rights or

adoption of one, though he offered to second a motion

made. Elbridge Gerry of Massachusetts then moved for tee to prepare a bill of rights,

move

if one

a

the

were

commit-

and Mason seconded the motion.

Roger Sherman of Connecticut observed that the rights of the people should be secured

if necessary,

but because the Constitu-

tion did not repeal the state bills of rights, the

Convention need

not do anything. Without further debate, the delegates, voting by states,

Two

defeated the motion lo-o.

days

teenth, after the states unanimously defeated a to delete

from the Constitution

gress, Charles

moved

a

motion by Mason

ban on ex post facto laws by Con-

Pinckney of South Carolina, seconded by Gerry,

to insert a declaration "that the liberty of the Press

be inviolably observed." necessary.

The power

and the motion journed.

lost

Sherman

laconically replied, "It

bill

is

un-

7-4. Three days later the Convention ad-

Two months

the idea [of a

should

of Congress does not extend to the Press,"

later

James Wilson of Pennsylvania would

report to his state ratifying convention that "so

tion,

on the four-

later,

of rights] that

it

little

account was

passed off in a short conversa-

without introducing a formal debate or assuming the shape of

a motion."

In the Congress of the Confederation, Richard Virginia his

was

own

moved

that a bill of rights,

state's constitution,

less interested in the

feating the Constitution.

Henry Lee of

which he had adapted from

be added to the Constitution. Lee

adoption of a

Under

bill

of rights than in de-

the Articles of Confederation

14

::

WHY WE HAVE THE

BILL OF RIGHTS

amendments recommended by Congress required

ratification

by

the state legislatures, not just nine state ratifying conventions.

all

Lee's motion was defeated, but

showed

it

from the

that,

the ratification controversy, the omission of a

bill

start

of rights became

an Anti-Federalist mace with which to smash the Constitution.

opponents sought

to prevent ratification

of rights issue because

it

of

and exaggerated the

Its bill

was one with which they could enhst

public support. Their prime loyalty belonged to states' rights, not civil rights.

Mason, the author of the celebrated Virginia Declaration of Rights of 1776, soon wrote his influential "Objections to the Con-

which began, "There

stitution,"

sincerity of

but he had

Mason's desire

many

no Declaration of Rights." The

is

for a bill of rights

right

12,

beyond question,

other reasons for opposing the Constitution.

Almost two weeks before he raised the

September

is

issue of a bill of rights

on

he had declared "that he would sooner chop off his

hand than put

it

to the Constitution as

it

now

stands."

A bill

of rights might protect individuals against the national govern-

ment, but

it

would not protect the

government would diminish

state

commerce power could "ruin"

states.

He believed

that the

new

powers and by the exercise of its

the southern states; the control of

commerce by a mere majority vote of Congress insuperable objection." But the lack of a

bifl

was, to

Mason, "an

of rights proved to be

the most powerful argument against ratification of the Constitution in the Anti-Federalist armory.

Why No

did the Constitutional Convention omit a

delegate opposed one in principle.

is

contended

Framers were

who had

for

I

believe,

who had

by the advocates

of

rights.?

As George Washington

informed the Marquis de Lafayette, "there was not the Convention,

bill

a

member

of

the least objection to what

for a Bill of Rights." All the

civil libertarians as well as

experienced politicians

the confidence of their constituents and the state legisla-

tures that elected them.

Even the foremost opponents of ratifica-

WHY WE HAVE THE makeup of

tion praised the

BILL OF RIGHTS

the convention.

::

15

Mason

himself, for

example, wrote that "America has certainly upon this occasion

drawn

forth her

first

characters

.

.

.

of the purest intentions," and

Patrick Henry,

who

that the states

had trusted the "object of revising the Confedera-

led the Anti-Federalists in Virginia,

tion to the greatest, the best, izens."

Their liberahty of

many— Protestants tion—made Chapel

"Went

all

conceded

and most enlightened of our

spirit is

and including the entire Virginia delega-

a point of attending divine service at Saint

in Philadelphia.

to the

As Washington recorded

Romish church

to high mass."

How

Mary's

in his diary,

could such an

"assembly of demigods," as Jefferson called them, neglect the erties

cit-

suggested by the fact that

lib-

of the people.^

On

July 26 the Convention had adjourned until August 6 to

permit a Committee of Detail to frame able to the Resolutions passed tee introduced a

a "constitution

conform-

by the Convention." The commit-

number of significant changes, such as

the explicit

enumeration of the powers of Congress, and without recommendations from the Convention decided on a preamble.

Randolph

left a

Edmund

fragmentary record of the committee's decision

that the preamble did not

seem

a proper place for a philosophic

statement of the ends of government because "we are not working

on the natural

upon

rights of

rights "modified

call ...

men

not yet gathered into society" but

by society and interwoven with what we

the rights of states." According to American revolutionary

theory, the natural rights to

which Randolph referred were pos-

sessed by individuals in the state of nature, which existed before

people voluntarily contracted with each other to establish a gov-

ernment whose purpose was nature,

when only

that— as the stated— "all

first

men

to secure their rights. In the state of

the law of nature governed, the theory posited section of the Virginia Declaration of Rights

are by nature equally free

and independent, and

have certain inherent rights, of which, when they enter into a state

16

::

WHY WE HAVE THE

BILL OF RIGHTS

of society, they cannot, by any compact, deprive or divest their posterity; namely, the

enjoyment of life and

liberty,

with the means

of acquiring and possessing property, and pursuing and obtaining

happiness and safety" Because the adoption of the state constitu-

ended the

tions

state

of nature, there was no need to enumerate the

rights reserved to the

people— or

so the

Framers of the Constitu-

tion reasoned.

And

yet,

they recognized that the existence of organized so-

and government required the affirmation of certain rights

ciety

that did not exist in the state of nature but that served to protect

natural rights. Trial by jury, for example, was

unknown

of nature but was necessary for the protection of one's

in the state life, liberty,

and property. Accordingly, the Framers recognized a rights "modified

by

class

of

society," just as they recognized that the legiti-

mate powers of government that did not belong to the central gov-

ernment of the Union could be

The

called "the rights of the states."

principal task of the Convention was to provide for an effec-

tive national

ment.

government by redistributing the powers of govern-

The Committee

of Detail,

when enumerating

the powers of

Congress, began with the power to tax and the power to regulate

commerce among

the states and with foreign nations (the two

great powers that the Articles of Confederation had withheld from

Congress) and ended with an omnibus clause that granted implied powers: "And to make

all

laws that shall be necessary and proper

for carrying into execution the foregoing powers,

powers vested, by United

all

other

government of the

this Constitution, in the

States, or in

and

any department thereof" That "necessary

and proper" clause was the most formidable tional powers, therefore the

responsible, later, for the

of na-

in the array

most controversial, and the one most

demand

for a bill of rights to ensure that

the United States did not violate the rights of the people or of

the states.

The Committee mended some

of Detail, again on

rights ("modified

its

own

by society"),

initiative,

among them

recomtrial

by

WHY WE HAVE THE

BILL OF RIGHTS

::

17

jury in criminal cases, a tight definition of treason to prevent

improper convictions,

a

ban on

of nobility

titles

(a

way of guaran-

teeing against a privileged class), freedom of speech and debate for

members of

the legislature, and a guarantee that the citizens of

each state should have the same privileges and immunities as

cit-

izens in other states. In addition, the committee introduced the

clause guaranteeing to each state a republican

ment. In the minds of the Framers,

form of govern-

many provisions of the

tution had a libertarian character: the election of public

the representative system, the separation of powers

Constiofficials,

among

three

branches of government, and the requirement that revenue and

House of Representa-

appropriation measures originate in the

tives—a protection of the natural right to property and a bar against taxation without representation.

over ratification of the Constitution, rights

was the major

Hamilton self, in

in

The

issue,

During the controversy

when

the omission of a

bill

of

many Framers argued, as did Alexander

Federalist,

No. 84, "that the Constitution

is it-

every rational sense, and to every useful purpose, a Bill

ofRights." All the rights tually

recommended by

the

Committee of Detail even-

found their way into the Constitution, but Charles Pinckney

believed that the committee had neglected several others that also

deserved constitutional recognition.

mended "sundry

On

August 20 he recom-

propositions," including a guarantee of the writ

of habeas corpus, which protected citizens from arbitrary arrest;

an injunction that the liberty of the press should be "inviolably preserved"; a ban on maintaining an

army

in

time of peace except

with the consent of Congress; an explicit subordination of the military to the civil power; a prohibition

troops in private

homes during peacetime; and

tests as a qualification for

None

on the quartering of

any United States

a

ban on religious

office.

of these provisions secured what theoreticians regarded

as natural rights.

The freedoms

of speech and conscience were

natural rights, but the liberty of the press was distinguishable as a

18

::

WHY WE HAVE THE

BILL OF RIGHTS

The ban on

right that did not exist in the state of nature.

rehgious

though protecting the right of conscience, was another ex-

tests,

ample of what

Edmund Randolph had

society," not preexisting

mended

it.

called a right "modified

Significantly,

by

Pinckney had not recom-

freedom of religion or of speech. Without

a protection of

debate or consideration the Convention referred his proposals to the

Committee of Detail, but

it

made no recommendations on any

of them.

On

the floor of the Convention, Elbridge Gerry

Congress should be denied the power to pass ex post facto laws. Bills

The motion

bills

moved

that

of attainder and

passed with hardly any discussion.

of attainder were legislative declarations of the guilt of indi-

viduals and legislative impositions of criminal penalties, without

No

the usual judicial proceedings.

was more dreaded or with

trial

by jury than

instrument of the criminal law

violative of the fair procedures associated a bill of attainder, the

most expeditious way

of condemning political opponents. Ex post facto laws in the

field

of criminal law were nearly as notorious and as unfair, for they

were

legislative acts that

crime

at the

made

criminal any conduct that was not a

time committed or acts that retroactively increased

the penalty for a crime or changed the rules of evidence in order to

obtain a conviction.

With

little

debate the Convention also placed

prohibitions on the power of the states to enact

and ex post facto

laws.

opposed the ban on the

power of the and they

bills

of attainder

Some

delegates, including

latter

because they did not wish to limit the

George Mason,

states to enact retroactive legislation in civil cases,

insisted, against the

supposed authority of Sir William

Blackstone's Commentaries on the

Laws of England (1765-1769)

that ex post facto laws included civil legislation as well as criminal.

The Supreme Court in

1798 would

settle the

matter in favor of the

Blackstonian interpretation, ruling that ex post facto laws are criminal only. Bills

of attainder and ex post facto laws, being legislative enact-

WHY WE HAVE THE

BILL OF RIGHTS

::

19

ments, came into existence after the people had compacted to form a

government. Banning such enactments, therefore, constituted a

means

for the protection of natural rights,

protect natural rights as such.

but the bans did not

The same may be

said of protecting

the cherished writ of habeas corpus as a device for ensuring the

personal liberty of an individual wrongfully imprisoned. After the

Convention unanimously adopted the Committee of Detail's rec-

ommendation

on

for a clause

ney urged the Convention

and by

trial

by jury

in criminal cases, Pinck-

to secure the benefit of the writ as well,

a vote of 7-3 a habeas corpus clause

Pinckney also moved

a prohibition

on

was adopted.

religious tests,

Convention summarily adopted by unanimous

which the doing

vote. In so

the Convention demonstrated a rare liberality of spirit, because

who

the Framers except those

came from

states

represented

all

New York and Virginia

whose constitutions discriminated against some

rehgious denominations by imposing a religious test as a qualifica-

whose

tion for public office. In Pennsylvania, for example, a state

constitution contained the broadest guarantee of religious free-

dom and

a provision that

deprived of any

civil right

no man acknowledging God should be

on account of his rehgion, the oath of

office

required an acknowledgment of the divine inspiration of the

New

Testament.

tutional

A Jew

from Philadelphia petitioned the Consti-

Convention not

would impose

to

frame

a civil disabihty

a similar oath

By

prohibiting religious

which

office,

upon him. Unitarians,

and Catholics suffered from various states.

of

Deists,

religious disabilities in

tests,

many

the Convention showed a

greater regard for religious liberty than

most

states; yet the

Con-

vention did not protect religious liberty itself

Thus,

all

the protections written into the Constitution were

means of vindicating natural

rights,

but only one natural right

was constitutionally protected. The overwhelming majority of the Convention believed, as Roger

Sherman of Connecticut

cinctly declared, that a bill of rights "is unnecessary."

suc-

Why was

it

20

WHY WE HAVE THE

::

BILL OF RIGHTS

recommended

unnecessary, given the fact that the Convention

new and powerful

on individuals? The Framers believed

ment could

a

national government that could operate directly that the national govern-

exercise only enumerated powers or powers necessary

enumerated, and no provision for the Constitu-

to carry out those

tion authorized the

government

to act

on any natural

A bill

rights.

of rights would restrict national powers, but, Hamilton declared,

such a

bill

would be "dangerous"

as well as unnecessary,

"would contain various exceptions this very account,

would

why

which there

to do.^

no power

given by which restrictions

Hamilton expressed

Why,

for instance, should

may be

it

be said

when no power

imposed.^"

a standard Federalist position, echoing

other Framers and advocates of ratification. Excluding a

from the Constitution was fundamental

rights

more

declare that things shall not be done

that the liberty of the press shall not be restrained, is

it

powers not granted; and, on

afford a colorable pretext to claim

than were granted. For is

to

because

tional theory of the Framers.

bill

of

to the constitu-

James Wilson of Pennsylvania, whose

influence at the Convention had been second only to that of

Madison, led the

ratificationist forces in

times sought to explain the omission of a

of the

he declared, had vested

states,

powers and rights "which they did not

Pennsylvania and several bill

of rights.

in their

The

people

governments

in explicit

all

terms reserve,"

but the case was different as to a federal government whose au-

on

thority rested tution.

tion prevails,

and everything which

people or the those Its

positive grants of power expressed in the Consti-

For the federal government, "the reverse of the proposi-

states.

That

is

not given,

distinction,

is

reserved" to the

Wilson argued, answered

who believed that the omission of a bill of rights was a defect.

inclusion would have been "absurd," because a

bill

of rights

stipulated the reserved rights of the people, whereas the function for the Constitution

was

to provide for the existence of the federal

government rather than enumerate ilton

and other

Federalists,

rights not divested. Like

Ham-

Wilson believed that a formal declara-

WHY WE HAVE THE tion

on freedom of the press or

BILL OF RIGHTS

religion, over

21

::

which Congress had

no powers w hatsoever, could "imply" that some degree of power had been granted because of the attempt

Wilson

also insisted

serving

all

to define its extent.

on the impossibility of enumerating and

the rights of the people.

"A

bill

re-

of rights annexed to a

constitution," he added, "is an enumeration of the powers reserved. If we attempt an enumeration, everything that

merated

is

presumed

to

be given.

The consequence

imperfect enumeration would throw scale of the

all

not enu-

is

that an

is,

implied powers into the

government; and the rights of the people would be

rendered incomplete." Civil liberties, the supporters of the Constitution believed,

faced real dangers from the possibility of repressive state action,

but that was a matter to be guarded against by state

They

also argued, inconsistently, that

rights but

were as free as those with

some

bills

states

bills

of rights.

had no

of rights.

bills

of

They were

as

free because personal liberty, to Federalist theoreticians, did not

depend on "parchment provisions," which Hamilton quate in "a struggle with public necessity";

it

called inade-

depended, rather, on

public opinion, an extended republic, a pluraUstic society of com-

peting interests, and a free and limited government structured to

prevent any interest from becoming an overbearing majority.

The a

fact that six states

comprehensive

ratification

list

had no

with the argument,

that an imperfect bill of rights

the omission of

some

bills

of rights and that none had

of guarantees provided the supporters of

rights

made by Wilson among

was worse than none

might

justify their

at all

which proved sity,"

and the

to

states

because

infringement by

implying an unintended grant of government power.

was not reassuring: the

others,

had very imperfect

The

bills

record

of rights,

be ineffective when confronted by "public neces-

state

governments did

in fact abridge rights that

had

not been explicitly reserved. Virginia's Declaration of Rights, for example, did not bills

of attainder. In 1778 the Virginia assembly adopted a

ban

bill

of

22

WHY WE HAVE THE

::

BILL OF RIGHTS

attainder and outlawry, drafted by Jefferson at the instigation of

Governor Patrick Henry, against

some

Josiah PhiHps, and

fifty

reputed cutthroat Tory, one

unnamed

enactment they were condemned failure to

a

"associates."

for treason

By

legislative

and murder, and on

surrender were subject to being killed by anyone. At the

Virginia ratifying convention,

Edmund

Randolph, irked beyond

endurance by Henry's assaults on the Constitution

as

dangerous to

personal liberties, recalled with "horror" the "shocking" attainder.

When Henry

defended the attainder, John Marshall, who sup-

ported ratification without a

bill

of rights, declared, "Can we pre-

tend to the enjoyment of political freedom or security, told that a

man

when we are

has been, by an act of Assembly, struck out of

existence without a

by

trial

without examination, without

jury,

being confronted with his accusers and witnesses, without the benefits of the law of the land.?"

The Framers

of the Constitution tended to be skeptical about

the value of "parchment barriers" against "overbearing majorities," as

Madison

said.

He

had seen repeated violations of bills of

rights in every state. Experience proved the "inefficacy of a bill of rights

on those occasions when

said. In Virginia, despite

control

its

is

most needed," he

an explicit protection of the rights of

conscience, the legislature had favored an establishment of religion,

which was averted only because Madison turned the

opinion against the

bill.

As

realists,

constitutional protections of rights

popular hysteria; any

member of

tide of

the Framers believed that

meant

little

during times of

the Constitutional Convention

could have cited examples of gross abridgments of civil liberties in states that

had

bills

Virginia's bill bills

of rights.

was imperfect not

of attainder.

just

The much vaunted

because

it

lacked a ban on

Declaration of Rights of

Virginia also omitted the freedoms of speech, assembly, and petition; the right to the writ

of habeas corpus; the right to grand jury

proceedings; the right to counsel; separation of church and state;

WHY WE HAVE THE

BILL OF RIGHTS

23

::

and freedom from double jeopardy and from ex post facto

The

rights omitted were as

numerous and important

laws.

as those

included. Twelve states, including Vermont, had framed constitutions,

and every one of them secured the right to

criminal cases. Although every one five either

Two

by jury

trial

permitted or provided for establishments of religion.

Four neglected

states passed over a free press guarantee.

ban excessive

fines, excessive bail,

rights of assembly, petition, counsel,

and

trial

Seven omitted a prohibition of ex post facto

by jury laws.

for the

in civil cases.

Nine

provide for grand jury proceedings, and nine failed to

failed to

condemn

of attainder. Ten said nothing about freedom of speech, while

eleven were silent on double jeopardy. a

to

compulsory self-incrimination,

and general search warrants. Five ignored protections

bills

in

also protected religious liberty,

power

to violate, they

seemed,

Whether omissions implied

in Federalist

minds, to raise dan-

gers that could be prevented by avoiding an unnecessary problem

omit a

entirely:

bill

of rights

when forming

a federal

government

of limited powers.

That the Framers of the Constitution

own arguments to credit.

to justify the omission of a bill of rights

Some of the

points they

made were

the insistence that the inclusion of a gerous, and

on

bill

in the claim that bills

England but not

Right of 1628, and the

in

America.

Bill

is difficult

patently absurd, like

of rights would be dan-

historical grounds, unsuitable.

commonly turned up priate in

actually believed their

The

last

point most

of rights were appro-

Magna Carta,

the Petition of

of Rights of 1689 had been grants

wrested from kings to secure royal assent to certain liberties and therefore had "no application to constitutions

the power of the people" everything.

.

.

.

founded upon

who surrendered nothing and

That argument, made

in

The

Federalist,

retained

No. 84, and by

leading ratificationists as sophisticated as James Wilson and Oliver Ellsworth, was so porous that

Rhode

it

could persuade no one. Excepting

Island and Connecticut, the two corporate colonies that

24

::

WHY WE HAVE THE

retained their charters (with

all

BILL OF RIGHTS

royal references deleted), eleven

had framed written constitutions during the Revolution,

states

and seven drew up

bills

of rights; even the four without such

bills

inserted in their constitutions provisions normally found in a

bill

of rights.

To imply

that bills of rights were

merely because

in

un-American or unnecessary

America the people were the source of all power

was unhistorical. Over

a period of a century

had become accustomed

to the idea that

and a half America

government existed by a

consent of the governed, that people created government, that they did

it

damental

by written compact, that the compact constituted fun-

law, that the

government must be subject

to

such limita-

tions as are necessary for the security of the rights of the people,

and, usually, that the reserved rights of the people were enumerated in

bills

from 1777 had

bills

of rights. Counting Vermont (an independent repubhc

until its admission to the

Union

in 1791), eight states

of rights— notwithstanding any opinion that such

bills

properly belonged only in a compact between a king and his subjects.

The dominant

theory in the United States from the time of

the Revolution was that the fundamental law Hmited

all

branches

of the government, not just the crown as in England, where the great liberty

documents did not

When Randolph fact that

"we

for the

limit the legislative power.

Committee of Detail alluded

are not working

on the natural

rights of

men

to the

not yet

gathered into society," he referred to the framing of the state constitutions.

The constitution of James Wilson's state began

an elaborate preamble whose tion that "all

individuals

first

government ought

who compose

[the

to

with

words established the proposibe instituted ... to enable the

commonwealth]

to enjoy their natu-

ral rights" and whose preamble was followed by as comprehensive

a "Declaration of the Rights of the Inhabitants" as existed in any state.

Yet Wilson repeatedly informed Pennsylvania's ratifying

convention that rights and liberties could be claimed only in a

WHY WE HAVE THE

BILL OF RIGHTS

contract between king and subjects, not

freedom and government

is

when

25

"the fee simple of

declared to be in the people." Gover-

nor Randolph merely exaggerated vention

when

::

con-

at the Virginia ratifying

he claimed that the Virginia Declaration of Rights

"has never secured us against any danger;

it

has been repeatedly

disregarded and violated." But Randolph's rhetoric became un-

pardonable

when he

declared that although a

bill

sense in England to limit the king's prerogative,

bills

rately speaking,

is

"Our

made

situation

is

from that of the people of England. What have

radically different

we to do with

of rights

of rights.^ ...

quite useless,

A

bill

if not

of rights, therefore, accu-

dangerous to

a republic."

At

the Constitutional Convention, Randolph had been able to distin-

guish natural rights from some rights modified by society.

That supporters of the Constitution could to

do with

a bill of rights.?" suggests that they

error of judgment, it.

ask,

had made

a colossal

which they compounded by refusing

Their single-minded purpose of creating an

government had exhausted

when

"What have we

their energies

to

admit

effective national

and good sense, and

they found themselves on the defensive, accused of threat-

ening the liberties of the people, their frayed nerves led them into indefensible positions.

Any

Anti-Federalist could have answered

Randolph's question, Wilson's speeches, or Hamilton's

Federalist,

No. 84, and many capably did so without resorting to Patrick Henry's grating hysteria. "Centinel,"

who answered Wilson

in a

Philadelphia newspaper, declared that the explanation for the

omission of a

bill

of rights "is an insult on the understanding of

the people."

Abroad, two wise Americans serving their country

in diplo-

matic missions, coolly appraised the proposed Constitution without the obligation of having to support a party a copy of the letter to

document

Thomas

in

line.

After receiving

London, John Adams wrote

Jefferson in Paris.

The

a short

Constitution seemed

"admirably calculated to preserve the Union,"

Adams

wrote, and

26

he hoped

"What

it

::

WHY WE HAVE THE

would be

ratified

BILL OF RIGHTS

with amendments adopted

later.

think you," he asked, "of a Declaration of Rights? Should

not such a Thing have preceded the Model?" Jefferson, in his letter to

Madison on the

praise but bill

subject of the Constitution, began with

ended with what he did not

of rights." After

first

listing rights

like:

"First the omission of a

he thought deserved special

protection, starting with freedom of religion and of the press,

Jefferson dismissed as campaign rhetoric Wilson's justification for

the omission of a bill

of rights

ernment on

ment should

is

bill

of rights and concluded: "Let

what the people

me add

that a

are entitled to against every gov-

earth, general or particular,

and what no

just

govern-

on inference."

refuse, or rest

Europe were much

closer to popular

opinion than the Framers of the Constitution,

who had worked

Adams and

Jefferson in

months and, with

their supporters, be-

into a position that defied logic

and experience. Dur-

secretly for almost four

came locked

ing the ratification controversy,

some

Federalists argued that the

Constitution protected basic rights, exposing them to the reply that they

had omitted the

liberty of the press, religious freedom,

security against general warrants, trial

by jury

in civil cases,

and

other basic rights. If the Framers intended to protect only nonnatural rights, those arising from the existence of society and gov-

ernment and unknown

in a state of nature, they

First, they protected only

ten

amendments

are

crowded with such

neglected. Second, any reader of John

the clause in Article

I,

were inconsistent.

some of the nonnatural

rights; the first

rights that the

Locke would

Framers

realize that

section lo, prohibiting the states

from

impairing the obligation of contracts, protected a natural right. At the close of Chapter 2 of Second Treatise on Government,

wrote that the "promises and bargains" between two

Locke

men on

a

desert island or between a Swiss and an Indian in the

woods of

America "are binding

in a State

to them, though they are perfectly

of Nature to one another." Oddly, the Convention had failed to

WHY WE HAVE THE adopt the contract clause when Style inserted

it

BILL OF RIGHTS

it

27

::

was proposed; the Committee of

into the Constitution,

out discussion, agreed to the clause in

and the Convention, withits

closing days.

sion of one natural right raises the question of why

excluded. state

The

all

The

others were

contract clause, of course, operates only against

why

infringement and raises the additional question of

Convention

United

inclu-

failed to include a

the

comparable prohibition on the

States.

Natural rights, in accordance with American theory and experience, required protection in

any government made by compact.

At the Convention, Madison declared sembled

to

paramount

that the delegates

as-

frame "a compact by which an authority was created

and making laws

to the parties,

them." Some of the

states,

when

tion, considered themselves to

solemn compact,"

for the

formally ratifying the Constitu-

be "entering into an explicit and

on both

tion as a compact. Chief Justice

that "the Constitution of the

John Jay, who had been one of the

United States

by the people of the United States

The new compact

ratifica-

sides referred to the Constitu-

authors of The Federalist, observed in Chisholm

intimidating. Article

government of

Massachusetts declared. During the

as

tion controversy, publicists

its

had

is

in order to

v.

... a

Georgia (1793)

compact made

govern themselves."

created a government whose powers seemed

VI established the Constitution, laws made in

pursuance, and treaties of the United States to be the supreme

law of the land, anything in the state constitutions to the contrary notwithstanding. That struck ous, because they thought

it

many

superseded their state

and authorized laws repugnant Federalists believed that

Anti-Federalists as danger-

of rights

Most Anti-

enumerated powers could be abused

the expense of fundamental liberties. Congress's

example, might be aimed

bills

to personal rights.

at the press

power

and was thus,

at

to tax, for

in the

words of

Richard Henry Lee, "a power to destroy or restrain the freedom of it."

Others feared that taxes might be exacted from the people for

28

::

WHY WE HAVE THE

BILL OF RIGHTS

the support of a religious denomination. According to Patrick

Henry, tax collectors unrestrained by a ban on general warrants

might invade homes "and search, ransack, and measure, everything you eat, drink, and wear."

The

necessary and proper clause particularly enraged advo-

cates of a bill of rights.

They saw

that clause as the source of

undefined and unlimited powers to aggrandize the national gov-

ernment and victimize the people, clared,

"we had

unless, as

a bill of rights to

Democratic Federalist" wrote:

"An Old Whig" de-

which we might appeal." "A

"I lay

it

down as

a general rule that

wherever the powers of government extend to the

and properties of the

sons,

clearly

subject,

all

lives,

their rights

ought

and expressly defined, otherwise they have but

curity for their liberties."

Henry warned

that

the per-

a

to

be

poor se-

Congress might

"extort a confession by the use of torture" in order to convict a

Numerous opponents

violator of federal law.

of ratification con-

tended that Congress could define as crimes the violation of any laws

it

rights,

might legitimately enact, and

in the absence of a bill of

accused persons might be deprived of the rights to counsel,

them, to pro-

to indictment, to cross-examine witnesses against

duce evidence

in their

own behalf, to be free from compulsory self-

incrimination, to be protected against double jeopardy or excessive to be

bail,

exempt from excessive

and unusual

fines or cruel

punishments, and to enjoy other rights traditionally belonging to accused persons. Such an argument was, invariably, advanced as

one among many refuting the Federalist claim that

a bill

of rights

was unnecessary. If a bill of rights

why

was unnecessary, Anti-Federalists asked,

did the Constitution protect

some

rights

some

opened the Federalists

claimed that because no

bill

rights.^

The

protection of

to devastating rebuttal.

They

of rights could be complete, the omis-

sion of any particular right might imply a power to abridge

unworthy of respect by the government. The argument

it

as

that to

WHY WE HAVE THE include

some

protection of tests,

would exclude

rights trial

by jury

the Federalists'

The

bans on religious

of attainder, the narrow defini-

bills

and the provision

own

29

::

others boomeranged.

all

in criminal cases, the

ex post facto laws, and

tion of treason,

BILL OF RIGHTS

for the writ of habeas corpus

by

reasoning was turned against them. Robert

Whitehall, answering Wilson on the floor of the Pennsylvania ratifying convention, noted that the writ of habeas corpus

by jury had been expressly reserved, and

Wilson

trial

he called on

in vain

to reconcile the reservation with his "favorite proposi-

was danger

tion." "For, if there liberties

and

in the

attempt to enumerate the

of the people," Whitehall explained, "lest

imperfect and defective,

how happens

it,

it

should prove

that in the instances

I

have mentioned, that danger has been incurred.^ Have the people

no other rights worth able to the

their attention, or

maxim of our opponents,

is it

to

be inferred, agree-

that every other right

is

abandoned.^" Stipulating a right, he concluded, destroyed the "ar-

gument of danger."

Surely, Anti-Federalists said, their opponents

might think of some rights

on

in addition to those protected.

religious tests could have

gion.

Did not

that the

its

The ban

reminded them of freedom of

omission, by their reasoning, necessarily

reli-

mean

government could attack freedom of religion.?

Patrick

Henry

cleverly observed that the "fair implication" of

the Federalist argument against a

bill

of rights was that the gov-

ernment could do anything not forbidden by the Constitution. Because the provision on the writ of habeas corpus allowed suspension

when required

results clearly that, if it

cases whatsoever.

It

for public safety,

had not

Henry reasoned,

said so, they could

it

"It

in all

reverses the position of the friends of this

Constitution, that every thing

is

retained which

instead of this, everything

is

given up which

for,

suspend

its

is is

not given up; not expressly

reserved." In his influential Letters of a Federal Farmer, Richard

Henry Lee observed

that a clause of the Constitution prohibited

Congress from granting

titles

of nobility. If the clause had been

30

WHY WE HAVE THE

::

BILL OF RIGHTS

omitted, he wondered whether Congress would have the power to grant such

titles,

and he concluded that

provision of the Constitution. restrain congress

"Why

from doing what

it

it

would not under any

then by a negative clause,

had power

then,

must have no meaning, or imply,

gress

would have the power

to do?

that were

in question ...

it

This clause,

omitted, con-

on the principle

that

congress possess the powers not expressly reserved." Lee objected to leaving the rights of the people to "logical inferences," because

Federalist principles led to the implication that

mentioned

in the Constitution

were intended

Far from being dangerous, a

to

all

the rights not

be relinquished.

of rights, as "A Federal Re-

bill

publican" stated in answer to Wilson, "could do no harm, but

might do much good." Lee, discoursing on the good observed that a because

it

bill

it

might do,

of rights would assist popular "education,"

taught "truths" upon which freedom depends and that

the people must believe as "sacred." James Winthrop of Massachusetts, writing as "Agrippa," explained another positive value of a bill of rights. It "serves to secure the minority against the usur-

pations and tyranny of the majority." History, he wrote, proved the

"prevalence of a disposition to use power wantonly. rights]

is

It [a bill

of

therefore as necessary to defend an individual against the

majority in a republick as against the king in a monarchy." In sum, the usually masterful politicians

who had dominated

the Convention had blundered by botching constitutional theory

and making

a serious political error.

the omission of a

bill

Mason's point that

Their arguments justifying

of rights were impohtic and unconvincing.

a bill of rights

would quiet the

people was unanswerable. AHenating him and the

agreed with him was bad politics and handed stirring cause ratification.

many who

to the opposition a

around which they could muster sentiment against

The single issue that united Anti-FederaHsts through-

out the country was the lack of a

ment—and

fears of the

the lack of a

bill

bill

of rights.

No

rational argu-

of rights created an intensely emo-

tional issue because people believed that their liberties

were

at

WHY WE HAVE THE Stake— could possibly

Henry and

BILL OF RIGHTS

allay the fears

::

31

generated by demagogues like

principled opponents of ratification like

Mason. Wash-

ington believed that even Mason's "Objections" were meant "to

alarm the people." And, when Anti-FederaHsts in

manded this

a bill of rights,

stamp

Hamilton

alleged, "It

is

New

York de-

the plan of men of

to frighten the people with ideal bugbears, in order to

mould them

to their

designing croakers

own

is,

My

purposes.

The unceasing

friends, your liberty

is

cry of these

invaded!"

The

Anti-Federalists capitalized on the Federalist blunder, hoping to defeat the Constitution or get a second convention that revise

it

hamstring the national government.

in order to

In Pennsylvania, the second state to

manded

a

comprehensive

bill

ratify,

the minority de-

of rights similar to that in their state

constitution. Massachusetts, the sixth state to ratify, to

would

was the

first

do so with recommended amendments. Only two of the recom-

mended amendments,

dealing with jury

grand jury indictment, belonged

and

trial in civil suits

in a bill of rights.

Supporters of

the Constitution in Massachusetts had withdrawn a proposed

of rights on the supposition that Anti-Federalists would use

proof that the Constitution endangered also have

recommended

jettisoned tional

it

when

powers

liberty.

to

Constitution.

made

and regulate commerce. Nevertheless, Feder-

New

recommended amend-

Hampshire, whose approval

an accomplished

partial bill of rights after the

New

fact,

as the ninth state

urged the adoption of a

new government went into operation.

York, whose ratification was politically indis-

pensable, followed suit with tions.

Maryland would

off conditional ratification or the defeat of the

ratification

Virginia and

as

the Anti-Federalists tried to insert curbs on na-

to tax

ward

it

a bill of rights, but the Federalist majority

aHsts grudgingly accepted ratification with

ments

bill

more comprehensive recommenda-

North Carolina was the fourth

mendations that included a

recommended crippHng

bill

with recom-

of rights. But the states also

restrictions

Thus, the Constitution was

state to ratify

on delegated powers.

ratified

only because crucial

states.

32

where

::

WHY WE HAVE THE had been

ratification

promise of a

bill

BILL OF RIGHTS

in doubt,

were wiUing

to accept the

of rights in the form of subsequent amendments

recommendations

to the Constitution. State

for

amendments,

in-

cluding those of the Pennsylvania minority, received nationwide publicity,

adding to the clamor for a

became part of the

first

ten

of rights. Every right that

bill

amendments was included

ommendations except the clause

in the Fifth

in state rec-

Amendment

requir-

ing just compensation for private property taken for pubhc use.

James Madison was one of the Federalists who that statecraft

and

political

expediency dictated

At the Virginia ratifying convention

tion.

in

had upheld the usual Federalist arguments of rights, but

bill

finally

avoid previous amendments. tion

He

later

The

a pledge

amendments. In

political position deteriorated

for the

omission of

a bill in

a

order to

conceded that the Constitu-

would have been defeated without

ers to back subsequent

June 1788, Madison

recommend such

voted to

finally realized

a switch in posi-

from

its

support-

Virginia, Madison's

because he had opposed a

own

bill

of

who

controlled the state legislature,

elected two of their own, Richard

Henry Lee and William Gray-

rights.

Anti-Federalists,

son, as the state's

first

United States senators. Madison faced

tough contest for election

to the

a

House of Representatives, and he

feared that the Anti-Federalists might succeed in their call for a

He

second constitutional convention. tion

on

a bill

needed

to clarify his posi-

of rights.

Although Madison had periodically apprised Jefferson, Paris,

on

ratification

son's letter of December 1787 supporting a bill of rights.

ber 17, 1788, the eve of his campaign for a House faced the issue.

He

in

developments, he had not answered Jeffer-

favored a

bill

seat,

On OctoMadison

of rights, he wrote, but had

"never thought the omission a material defect" and was not "anxious to supply

it

even by subsequent amendments"; he did not

even think the matter important.

Still

agreeing with Wilson that

the delegated powers did not extend to reserved rights,

Madi-

WHY WE HAVE THE

BILL OF RIGHTS

::

33

son also worried about the difficulty of adequately protecting the

most important

rights; experience proved,

of rights was a mere parchment

ernment, after

endanger

all,

liberty.

barrier

he asserted, that a

bill

when most needed. Gov-

was the instrument of the majority, which could

"What

use then

in popular Governments.^"

Its

.

.

.

can a

bill

of rights serve

poHtical truths, he conceded by

way

of an answer, could educate the people, thereby inhibiting majority

impulses. Jeiferson's reply of

on Madison, argument Jeff"erson,

as

March

15, 1789,

had a profound influence

Madison's great speech of June 8 would show.

for a bill of rights that

was "the

legal

An

Madison had omitted, wrote

check which

it

judiciary." Jeff'erson believed that an

puts into the hands of the

independent court could

withstand oppressive majority impulses by holding unconstitutional

any acts violating a

Madison,

for

bill

of rights.

The

point was not

laws at the Constitutional Convention, had declared that

"obhge the Judges void."

As

new

to

he himself, when defending a ban on ex post facto it

would

to declare [retrospective] interferences null

for the point that the delegated

and

powers did not reach the

reserved rights of the people, Jefferson answered that because the

Constitution protected some rights but ignored others, implications against them, making a

bill

it

raised

of rights "necessary by

way of supplement." Moreover, he added, the Constitution "forms us into one state as to certain objects," requiring a

bill

guard against abuses of power. As for the point that a

of rights to

bill

of rights

could not be perfect, Jefferson replied with the adage that half a loaf is better than none; even if all rights could not be secured, "let

us secure what

we

can."

Madison had

also

argued that the limited

powers of the federal government and the jealousy of the

states

afforded enough security, to which Jefferson answered that a

bill

rights "will be the text

whereby

of

to try all the acts of the federal

government." That a bill of rights was inconvenient and not always efficacious did not impress Jefferson.

Sometimes, he replied,

it

was

34

and

effective,

WHY WE HAVE THE

::

if it

BILL OF RIGHTS

inconveniently cramped the government, the

was short-hved and remediable, while the inconveniences of

effect

not having a

of rights could be "permanent,

bill

afflicting,

irreparable." Legislative tyranny, Jefferson explained,

and

would be

a

formidable dread for a long time, and executive tyranny would likely follow.

Jefferson's arguments,

however persuasive, would have been

unproductive but for the dangerous poHtical situation, which

Madison meant

New

to ameliorate.

Four

Madison

feared,

power

to the

would be

to tax.

federal government.

Lack of that power

Madison

of rights bridle the

civil liberties,

"will be fatal" to the

many

correctly believed that

Union on

new

Anti-

the condition that a

new government. His

them over by persuading the of

own and

to "mutilate the system," especially as

Federalists favored an effective bill

including his

states,

York, had called for a second convention, whose purpose,

strategy was to win

First Congress to adopt protections

thereby alleviating the public's anxieties, pro-

viding popularity and stabiHty for the government, and isolating those Anti-Federalists whose foremost objective was "subverting the fabric

.

.

.

if

not the

Union

itself"

In the First Congress, Representative his pledge of subsequent

face of opposition

and apathy

entitles

him

more than

to

of a

be remembered as

Many Federalists thought that the House had more impor-

The opposition bill

party,

and

a judiciary

which had previously exploited the

of rights in the Constitution, realized that

would sink the movement likely

in the

as father of the Consti-

tant tasks, such as the passage of tonnage duties bill.

to fulfill

amendments. His accomplishment

father of the Bill of Rights even tution.

Madison sought

for a

its

lack

adoption

second convention and make un-

any additional amendments that would cripple the substan-

tive

powers of the government. Having used the

as a

smokescreen for objections to the Constitution that could not

be dramatically popularized, they

bill

of rights issue

now sought to scuttle Madison's

WHY WE HAVE THE proposals.

They began by

ments aggrandizing

state

BILL OF RIGHTS

stalling,

::

35

then tried to annex amend-

powers, and finally depreciated the im-

portance of the very protections of individual liberty that they had

formerly demanded as a guarantee against impending tyranny.

Madison meant

to prove that the

new government was

of liberty; he also understood that his amendments,

would thwart the passage of proposals aggrandizing and diminishing national ones.

He would

8,

1789, he

made

his long,

a friend

adopted,

state

not be put

insistent, compelling, unyielding, and, finally,

On June

if

off;

powers he was

triumphant.

memorable speech before

an apathetic House, introducing amendments culled mainly from state constitutions

and

cially Virginia's. All

state ratifying

convention proposals, espe-

power, he argued,

is

subject to abuse and

should be guarded against by constitutionally securing "the great rights of mankind." it

The government had only limited

might, unless prohibited, abuse

its

discretion as to

means under the necessary and proper ple,

clause;

it

powers, but its

choice of

might, for exam-

use general warrants in the enforcement of its revenue laws. In

Britain, bills of rights

merely erected barriers against the powers of

the crown, leaving the powers of Parliament "altogether indefinite,"

and the British constitution

rights of the press

left

unguarded the "choicest"

and of conscience. The great objective he had

mind, Madison declared, was

to limit the

in

powers of government,

thus preventing legislative as well as executive abuse, and above

all

preventing abuses of power by "the body of the people, operating

by the majority against the minority." Mere "paper barriers"

might

fail,

but they raised a standard that might educate the ma-

jority against acts to

To

which they might be

the argument that a

bill

inclined.

of rights was not necessary because

the states constitutionally protected freedom, responses.

One was

that

some

states

had no

Madison had two

bills

of rights, others

"very defective ones," and that the states constituted a greater

danger to liberty than the new national government.

The

other

36

::

WHY WE HAVE THE

BILL OF RIGHTS

was that the Constitution should, therefore, include an amendment, that "no State

shall violate the equal rights

the freedom of the press, or the

trial

argued that the states would more

would the national government

by jury

likely

He

He

abuse their powers than

"if not controlled

principle, that laws are unconstitutional

of the community."

of conscience, or

in criminal cases."

by the general

which infringe the

rights

thought that "every Government should

be disarmed of powers which trench upon those particular rights" of press, conscience, and jury

more needed, he

trial.

asserted, because

tect these rights in their

own

The amendment was

some of the

constitutions.

As

all

the

states did not pro-

for those that did, a

"double security" could not reasonably be opposed.

When Con-

gressman Thomas Tucker of South Carolina moved

to strike the

proposed restriction on

state powers,

by a two-thirds majority valuable

To

amendment

after

in the

Madison

he argued that

whole

carried the

this

House

was "the most

list."

the contention that an enumeration of rights would dis-

parage those not protected, Madison replied that the danger could

be guarded against by adopting a proposal of his composition that

became the Ninth Amendment.

If his

amendments were

"incor-

porated" into the Constitution, Madison said, "independent

tri-

bunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive;

they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution."

Although many Federalists preferred

ment time ers of

to operate before

Madison

to give the

new govern-

amending the Constitution, support-

exulted, largely for political reasons.

Hugh

Wil-

liamson of North Carolina, a signer of the Constitution, informed

Madison

that the Anti-Federalists of that state did not really

a bill of rights.

want

William R. Davie, who had been Williamson's

colleague in the Convention, gleefully reported to

Madison

that

WHY WE HAVE THE his

BILL OF RIGHTS

amendments had "confounded

mund

::

37

Ed-

the Anties exceedingly."

Pendleton of Virginia wrote of Madison's amendments that

"nothing was further from the wish of some,

who covered

Opposition to the government under the masque of zeal for

their

uncommon

amendments." Tench Coxe of Pennsylvania praised Madi-

son for having stripped the Constitution's opponents of every rationale

"and most of the popular arguments they have hereto-

fore used."

Notwithstanding the support of correspondents, Madison's speech stirred no immediate support in Congress. Indeed, every speaker

who

opposed

a bill of rights or believed that the

far

followed him, regardless of party affiliation, either

more important

duties. Six

weeks

later

consideration of his amendments, but the a special

House should attend Madison "begged"

to

for a

House assigned them

to

committee instead of debating them. That committee,

which included Madison, reported

in a

week.

It

added freedom of

speech to the rights protected against state abridgment, deleted

Madison's reference to no "unreasonable searches and seizures,"

and made some the

stylistic revisions,

amendments

mittee's report

implore

its

substantially as he

was

it

recommended

had proposed them. The com-

tabled, impelling

Madison on August

13 the

amendments, and

House

finally

began

in the course of debate

Madison had proposed

to consider the reported it

made some

to "incorporate" the

significant

amendments

within the text of the Constitution at appropriate points.

not

3 to

consideration.

On August changes.

but otherwise

recommend

He

did

their adoption as a separate "bill of rights," al-

though he had referred

to

them

collectively

by that phrase.

bers objected, however, that to incorporate the give the impression that the

Mem-

amendments would

Framers of the Constitution had

signed a document that included provisions not of their composition.

Another argument

for

lumping the amendments together

was that the matter of form was so

"trifling" that the

House

38

::

WHY WE HAVE THE

should not squander

amendments. the

its

BILL OF RIGHTS

time debating the placement of the various

Ironically,

Roger Sherman, who had

amendments were unnecessary, deserves

tently arguing that they should be

insisted that

the credit for insis-

appended

as a

supplement

the Constitution instead of being interspersed within

what became the

it.

to

Thus,

"Bill of Rights" achieved its significant collective

form over the objections of its foremost proponent, Madison, and because of the desire of its opponents in both parties to downgrade its

importance.

The House allied clause

recast the free exercise of religion clause

and

its

banning estabhshments of religion, improving Madi-

son's original language.

The House

also confined to criminal cases

Madison's broad phrasing that no person should be compelled to give evidence against himself

By

contrast, the

House

restored the

extremely important principle against unreasonable searches and

which had been dropped by the committee. In another

seizures,

major decision the House decisively defeated Elbridge Gerry's motion, on behalf of the Anti-Federalists, to consider not just the

committee's report but

all

amendments

that the several states

had

proposed; the Anti-Federahsts thus failed to intrude crippling political

in the

amendments.

Finally, the

House added "or

recommendations by Madison that the powers not dele-

gated to the United States be reserved to the the

to the people"

states.

On the whole,

House adopted Madison's amendments with few

alterations during the course of

its

significant

ten-day debate on the

Bill

of Rights. In the midst of that debate Federalist explaining

project of tantly.

Madison wrote

why he was

amendments"

that

so

a letter to a fellow

committed

to "the

nauseous

some of the party supported

reluc-

Protecting essential rights was "not improper," he coolly

explained, and could be of

honor-bound

to

redeem

a

some

influence for good.

campaign pledge

He

also felt

to his constituents,

mindful that the Constitution "would have been certainly re-

WHY WE HAVE THE

BILL OF RIGHTS

jected" by Virginia without assurances from

subsequent amendments.

amendments

moreover,

39

supporters to seek

made proposing

amendments,

If Federalists did not support the

Anti-Federalists would claim that they had been right

and gain support

amendments

the

end

ting an

the

a necessity in order to beat the Anti-Federalists at

own game.

their

Politics,

its

::

for a

"will

all

along

second convention. And, Madison wrote,

kill

the opposition everywhere, and by put-

to disaffection to the

Government

itself,

enable the

administration to venture on measures not otherwise safe."

Madison had, That

is

in fact,

upstaged and defeated Anti-Federalists.

why Congressman Aedanus Burke of South

Carolina cried

sour grapes. During the debate on what became the First

Amend-

ment, he argued that the proposals before the House were "not

amendments which the people ex-

those solid and substantial pect; they are

wind. lose

.

.

.

little

Upon

better than whip-syllabub, frothy

the whole,

our time, and that

it

I

will

think ...

and

full

of

we have done nothing but

be better to drop the subject now, and

proceed to the organization of the Government."

The

private

correspondence of Senators Richard Henry Lee and William

Grayson of Virginia

reveals the explanation for the attitude of

their party toward a bill of rights.

A

few days after Madison had

introduced his amendments, Grayson complained to his mentor, Patrick Henry, that the Federalists

which

meant

to enact

"amendments

shall effect [sic] personal liberty alone, leaving the great

points of the Judiciary, direct taxation, &c, to stand as they are."

Lee and Grayson had

amend

failed in their effort to

have the Senate

the House's proposals by adopting the Virginia ratifying

convention's recommendations on direct taxation and the treaty

and the commerce powers. Lee then regretted the original AntiFederahst strategy of opposing the Constitution unless revised by the addition of a fully

was

bill

of rights and other amendments.

He

sorrow-

informed Henry that "the idea of subsequent amendments,

little

better than putting oneself to death

first, in

expectation

40

WHY WE HAVE THE

::

that the doctor,

who wished our

BILL OF RIGHTS

destruction,

restore us to hfe." Later, after the Senate

amendments

that

became the

they will do more

The

harm than

I

believe, as

many

others do, that

benefit."

Senate, which kept no record of

ated on seventeen

had approved of the

of Rights, Grayson reported,

Bill

"they are good for nothing, and

would afterwards

its

debates, had deliber-

amendments submitted by the House. The Sen-

one proposal Madison thought "the most valuable":

ate killed the

protection against state infringement of speech, press, religion, or trial

by

jury.

The motion

to

adopt failed to receive the necessary

two-thirds vote, though by what margin also

is

unknown. The Senate

weakened the House's ban on estabhshments of religion. Oth-

erwise, the Senate accepted the

House

proposals, although the

Senate combined several, reducing the number from seventeen to twelve.

The first of the twelve dealt with the relation of population

to the

number of

representatives

from each

state,

second would have prevented any law going into

and the then

effect increasing

the salaries of members of Congress until after the next election.

The House adamantly refused its

ban on establishments of

to accept the Senate's version of

religion.

A

conference committee of

both houses met to resolve their differences.

The committee,

which included Madison, accepted the House's ban on estabhshments but otherwise accepted the Senate's version of the amendments.

On

tee report;

twelve

24, 1789, the

on the following

six

months nine

for the

commitand the

to the states for ratification.

states ratified the Bill of Rights; of the

amendments submitted

for approval, the first

were rejected. The four recalcitrant ginia,

House voted

day, the Senate concurred,

amendments were submitted

Within twelve

September

states

and second

by mid- 1790 were Vir-

Massachusetts, Connecticut, and Georgia.

The

admission

of Vermont to the Union raised the number of states needed for ratification to eleven.

Connecticut and Georgia refused to

Georgia's position was that

ratify.

amendments were superfluous

until

WHY WE HAVE THE

BILL OF RIGHTS

::

41

experience under the Constitution proved a need. Connecticut believed that any suggestion that the Constitution was not perfect

would add

to the strength of Anti-Federalism.

In Massachusetts, Federalist apathy to the Bill of Rights was

grounded on

a satisfaction with the Constitution as

more

the Anti-Federalists were

would strengthen the

interested in

states at the

was, and

it

amendments

that

expense of the national govern-

ment. Nevertheless, the Massachusetts lower house adopted but the

first,

all

second, and twelfth amendments, and the upper

house adopted

all

but the

second, and tenth.

first,

Thus both

houses of the Massachusetts legislature actually approved what

became our

First through Seventh

ever, a special

that

all

committee dominated by Anti-Federalists urged

amendments recommended by Massachusetts should be

adopted before the sult,

state

concurred

the two houses never passed a

eight

How-

and Ninth Amendments.

in

bill

any amendments. As

a re-

promulgating ratification of

amendments. Jefferson, the secretary of state, believed that

Massachusetts, "having been the loth state which has ratified,

makes up the threefourth tion

was

to suffice."

for clarification.

He

The

of the legislatures whose

wrote to a Massachusetts

ratifica-

official,

asking

reply was, "It does not appear that the

mittee ever reported any necticut and Georgia

[sic]

bill."

In 1939 Massachusetts joined

when they

belatedly ratified

ComCon-

on the sesqui-

centennial anniversary of the Constitution. Ratification of the Bill of Rights

1789,

left

by Vermont,

in

November

Virginia the last state to act. Its ratification as the elev-

enth state was indispensable, although the hostility of

its

Federalist leaders presaged a doubtful outcome. Senators

Grayson

and Lee reported the a

to the Virginia legislature that they transmitted

recommended amendments "with grief" They

new

constitutional convention that

stantial

state

Anti-

Amendments"

would devise

still

hoped

"real

for

and sub-

to "secure against the annihilation of the

governments." Patrick Henry moved in vain to postpone

42

::

WHY WE HAVE THE

consideration of the Bill of Rights.

own making,

their

of Rights.

The

BILL OF RIGHTS

The

dilemma of

victims of a

the Anti-Federalists sought to sabotage the Bill

Federalists of Virginia, however, eagerly supported

the Bill of Rights in the knowledge that

public fears and stymie the

adoption would appease

its

amendments supported by

Federalists. Virginia's lower house, controlled

by the

the Anti-

Federalists,

Not

acted quickly, but the opposition dominated the state senate. all

Anti-Federalists were implacably opposed.

George Mason's opinion.

amendments he had not "important

When

called

he had

still

respected

heard of Madison's

first

them "Milk and Water Propositions,"

& substantial Amendments."

mind, saying that they gave "much

his

Some

But Mason changed

satisfaction,"

though he

wanted other amendments, including one that prevented

commercial regulations by mere majority vote of Congress. Virginia's senate, as

Edmund Randolph

reported to Wash-

ington, postponed consideration of the amendments, "for a majority is

member

unfriendly to the government." As a

house reported

to

Madison, the senate inclined

of Rights, not because of opposition to

of the lower

to reject the Bill

guarantees, but from

its

an apprehension "that the adoption of them

at this

time will be

an obstacle to the chief object of their pursuit, the amendment on the subject of direct taxation." For that reason, Randolph re-

ported to Washington, the Federalists meant to "push" the

Bill

of

Rights; passage would "discountenance any future importunities for

amendments." At the

close of 1789 Virginia's senate rejected

First, Sixth,

Ninth, and Tenth Amendments,

what became the at least until the

next session, thereby allowing time for the electorate to express itself

The

"radical"

Anti-Federalists

amendments,

as

still

Lee

hoped

to

drum up support

called them.

The

for

senators in the

majority also issued a statement grossly misrepresenting the First

Amendment

(then the third).

this Anti-Federalist tactic

Madison confidently believed

would

backfire,

and

it

did.

that

For the sen-

WHY WE HAVE THE ators' Statement

was not only inaccurate on

from men who with church and

state.

BILL OF RIGHTS

a single exception

its

face;

ratification

of the

would eHminate the opposition

new government and would

give

it

confidence of the public. Jefferson

a

came

it

had opposed separation of

Madison expected the

Rights, which he believed

43

::

Bill

of

to the

chance to operate with the

made

his influence felt

on be-

half of the Bill of Rights, and the Anti-Federalists grudgingly gave

ground before pubhc opinion.

On December

two

15, 1791, after

years of procrastination, the Virginia senate finally ratified without

record vote, thereby completing the process of state ratification

and making the

The

Bill

of Rights part of the Constitution.

history of the framing and ratification of the Bill of Rights

indicates slight passion liberties in the

on the part of anyone

to enshrine personal

fundamental law of the land.

We know

almost

nothing about what the state legislatures thought concerning the

meanings of the various amendments, and the press was perfunctory in

its

reports, if not altogether silent.

sistence the

But

amendments would have died

cious Bill of Rights, at least in

its

for

Madison's per-

in Congress.

Our

pre-

immediate background, resulted

from the reluctant necessity of certain Federalists

to capitalize

on a

cause that had been originated, in vain, by the Anti-Federalists for ulterior purposes.

The

Rights inadvertently

framing and fessedly

ratification,

wanted

it

party that had

wound up with

first

opposed the

Bill

the responsibihty for

whereas the people

discovered too late that

it

who had

at first

The

Rights had a great healing

Mason

inally

however;

it

did, as

proposed, "give great quiet" to the people.

to the Constitution, Jefferson

The

The

Bill

of

orig-

opposition

informed Lafayette, "almost

disappeared," as Anti-Federalist leaders lost "almost lowers."

pro-

not only was embar-

rassing but disastrous for their ulterior purposes. effect,

of its

all

totally

their fol-

people of the United States had had the good sense,

nourished by traditions of freedom, to support the Constitution

and the Bin of Rights.

CHAPTER TWO

Habeas Corpus

T

f

ir

^HE WRIT OF HABEAS CORPUS-a writ to "have the

body"— goes back

memorial.

The

writ

is

in English history to time

even older than

and may have originated

For centuries

it

Magna

in the courts of chancery.

served a variety of purposes; for example,

abled the royal courts to

it

en-

command the presence of a person so that

might commence or continue. At an early stage of

a suit

im-

Carta

velopment the writ applied not only

to law

enforcement

its

de-

officers

but to private persons as well, compelling them to produce in court the person whose presence they might control. Courts fre-

quently issued the writ to enhance their jurisdiction. Rival courts

used

it

to

authority.

make

The

the king's justice a

means of augmenting

writ also once operated as a

their

means of extraditing

a

person, thus allowing a court to require an individual to appear before

it

so that justice could be

done

in the locale

where

a

crime

had been committed.

Almost always the writ ensured the presence to litigation, civil or criminal.

By

in court of a party

the fifteenth century the writ

functioned to allow a sheriff to produce the party in court. As the writ developed, the courts required not only the presence of a

party but an explanation of the reasons for his having been de44

HABEAS CORPUS tained by royal officers.

::

45

That explanation was

called the "return"

to the writ. If the return did not satisfy the judges, they discharged

remanded him.

the prisoner. If the return was sufficient, they

The tually

writ could develop only because judicial functions even-

became

differentiated

from

legislative

and executive ones.

Separation of powers was centuries in the making, and once courts obtained some independence, the writ of habeas corpus became an

instrument of their operation. Separation of powers also intensified the efforts

of common-law courts to settle various legal dis-

putes between parties.

The common-law

jurisdiction over chancery courts

and

courts aggrandized their

ecclesiastical courts

fective use of the writ; in the process the writ

liberating the unjustly imprisoned

prisoned by a court that the

and

became

also those

a

by

ef-

means of

who were im-

common-law judges considered

as

lacking the power to imprison. In 1577, for example, the Court of

Common its

Pleas, a

common-law

from the return on

court, learned

writ of habeas corpus that the Court of High

supreme

ecclesiastical court,

The common-law

for religious reasons.

mitment was cause of

illegal

itself

a

man named Hinde

court held that the

because the return to

commitment with

determine for

had imprisoned

Commission, the

it

com-

failed to certify the

sufficient detail to allow the court to

the lawfulness of the commitment.

The

court

added, however, that a commitment on the king's authority need not be justified by a showing of reasons, "because

it

may concern

the state of the realm, which ought not to be published."

The common-law In 1587,

courts soon showed greater independence.

when confronted by

a return to

its

writ revealing merely

that the chief officer of the Privy Council

had ordered an im-

prisonment, the Court of Common Pleas ruled that the return was insufficient

and discharged the prisoner. But when the entire Privy

Council rather than just one

member

of

it

commanded an im-

prisonment, the court decided in 1588 that no cause had to be stated. In

1592 the court summarized the law of the matter by

46

observing that

if

::

HABEAS CORPUS

the queen or her Privy Council ordered commitif one

ment, or in a case of high treason

made fice.

member of the

council had

the order, a general return not specifying causes would suf-

In 1593, James Morice, a Puritan lawyer and

Parliament, introduced a

bill

providing that because

member

of

many subjects

had been imprisoned without adequate cause, no person should be

committed contrary

Magna

to

Carta without warrant and any

common-law judge might award that the writ

a writ of habeas

Commons

anyone so imprisoned. But the

had not yet become a routine

In 1605 the Court of

Thomlinson,

a prisoner

Common

corpus to deliver

tabled the liberty

bill,

document.

Pleas issued the writ for one

who had been committed by

Admiralty for his refusal

to

showing

answer questions.

the Court of

Common

Pleas

ruled that the return, which stated only that he had been im-

prisoned for contempt, was insufficient. it

It

was too general because

did not stipulate the reason for Thomlinson's examination by

the Admiralty.

The case showed

that the writ of habeas corpus

becoming more respected. Fifty years

earlier,

was

the Admiralty had

haughtily refused to obey writs of habeas corpus issued in one case

by the lord chief justice and in another by the Court of Exchequer. Nicholas Fuller, a Puritan lawyer, applied in 1607 to the King's

Bench, the highest common-law criminal court, habeas corpus on behalf of his

clients,

for a writ of

Thomas Ladd,

a

merchant,

and Richard Mansel, a Puritan minister. Both had been imprisoned by the High Commission for having attended outlawed

and

religious meetings

ment

that

contumacious behavior. Fuller's argu-

Ladd and Mansel had been

two days, and

Magna

for

its

illegally

imprisoned took

publication in pamphlet form popularized

Carta as a liberty document. Fuller relied on

and habeas corpus siastical courts,

He applied

to

combat the

Magna

Carta

inquisitorial procedures of eccle-

but his intemperate language got him imprisoned.

to the King's

Bench

for a writ of habeas corpus,

the court awarded, thereby freeing

defend their commitment of him.

him and requiring

which

his jailers to

HABEAS CORPUS

::

47

Because the writ raised questions about the royal prerogative,

James

summoned

I

members of

an extraordinary meeting of the

the Privy Council and

members of the

all

three

common-law

su-

Common Pleas, and Exchequer. the lord chief justice of Common Pleas, confronted

preme courts— King's Bench,

Edward Coke,

by a royal assertion of divine

rule,

quoted

Magna Carta to James

I,

suggesting that even the king was under the law. Coke remained prodigal in his issuing of various kinds of writs that challenged the royal prerogative, including writs of habeas corpus.

In 1608 in the case of Roper,

who had been imprisoned by

the High Commission, the King's Bench freed Roper on habeas

corpus because the commission did not have authority to punish

by imprisonment. In 1610 the King's Bench issued

a writ

of habeas

corpus resulting in a return that stated that the lord chancellor of

England had ordered the warrant of commitment "for matters concerning the King."

To

was inadequate because imprisonment, "for

him of his

it

it

its

credit the court held that the return

did not

might be

privilege." In

1

show the causes of the person's

a cause

which would not hinder

612 in Chancey's

case, the

issued another writ of habeas corpus releasing a

prisoner

who had been committed

for adultery.

King's Bench

High Commission

The King's Bench

claimed that the commission lacked authority to imprison for that offense. In 161 5 in

prisoner of the for his

Hodd's

case,

Coke

for the court freed another

High Commission because he had been committed

contemptuous language. Coke declared that

"it

did not

appear by the return what the words were which he spake, and they

may be such

as

ought to be determined by the

for this cause the return

role in ally

making the writ

is

common

law;

not good." Coke deserves honor for his

a liberty

document, but even he occasion-

buckled under executive powers.

In the next year, for example, the court decided the case

of Burrowes and several others, for holding private conventicles.

the King's

all

Puritan laymen committed

When

their case

came before

Bench on habeas corpus. Coke delivered an unusual

48

He

opinion.

::

HABEAS CORPUS

gave three reasons for sustaining the writ of habeas

corpus and releasing the prisoners, and then he

failed to

First he reasoned that because the statute used by the

mission to imprison the petitioners was a penal

do

so.

High Com-

law, the

commis-

sioners could not exact from the prisoners an oath whereby they

might accuse themselves. Second, the prisoners had been denied copy of the charges,

which

to

which they were

"may be drawn from

said Coke,

entitled.

"A

a

third reason,"

the liberty of the subject, the

very great as to the imprisonment of the body, and there-

is

fore before

commitment, the party ought

answer, and

if

he be committed, yet

petually; if one shall have a

to

this

remedy here

be called to make his

ought not

for his land

to

be per-

and goods, a

multo fortiori, he shall have a remedy here for his body, for delivery

of him out of prison, being there detained without just cause." Yet

Coke inexplicably balked

why he

should.

advising

them

He

at issuing the writ after

having explained

resolved the case by bailing the prisoners yet

that they should submit themselves to the

High

Commission. At the next session of the court, Burrowes and several others again applied for discharge

corpus, but

them

for

Coke ruled

that the

on the writ of habeas

High Commission could imprison

obstinate heresy and schism; he remanded the prisoners

to the custody of the

commission.

So stood the law of the matter: the ineffective if the imprisoning

writ of habeas corpus was

agency had lawful authority and

fol-

lowed appropriate procedure. Then Thomas Darnel's case arose in 1627.

He was one of five knights who refused to make the forced

"loan" that Charles

I

sought to exact after having dissolved Parlia-

ment, thus having no way of raising

taxes.

Imprisoning those

did not comply caused "great murmuring,"

mant.

From

who

but the king was ada-

prison. Darnel sought a habeas corpus from the

King's Bench. Chief Justice Nicholas Hyde, a new appointee of granted the writ but on

Charles

I,

oners to

jail.

its

return remanded the pris-

The return specified that Darnel had been committed

HABEAS CORPUS

command

"by Special

Heath argued

::

49

of his Majesty." Attorney General Robert

that such a return

was

sufficient in a case involving a

own

matter of state because the king could imprison anyone by his authority without being obliged to explain.

On

behalf of Darnel, his counsel contended that the return,

which had not offered any reason with less If,

Magna

Carta's requirement that

imprisonment, conflicted

no one be imprisoned "un-

by the lawful judgment of his peers or by the law of the land."

counsel added, the court

the king might imprison a

remedy

for the subject."

Corpus

is

the only

it

deemed

the return to be valid, then

man forever and "by law there can be no

Counsel continued: "The Writ of Habeas

means the subject hath

the end of this Writ that

for his

is

may be examined

to obtain his liberty,

imprisonment,

to return the cause of the in this court,

whether the parties ought

be discharged or not; but that cannot be done upon

from appearing particularly by

ful

it."

it,

that there

is

to

this return; for

the cause of the imprisonment of this gentleman at

expressed in

and

first is

so far

no cause

at all

The argument by Darnel's counsel won "wonder-

applause" from the people in the crowded courtroom.

The

attorney general replied that in a matter of state no

man

could question the king's judgment. That was comparable to stating that in a time of national crisis or

when

national security

is

supposed

to

involved, the laws are silent. Theoretically, justice

be available though the heavens should

Wendell Holmes, speaking

Moyer v. Peabody

for the

fall.

But

is

as Justice Oliver

Supreme Court, once

said, in

(1909), "Public danger warrants the substitution

of executive process for judicial process."

The

Constitution's

habeas corpus provision therefore allows for the suppression of the writ

"when

require

it."

in cases of rebellion or invasion the public safety

Abraham Lincoln's conduct during the

Civil

may

War is an

appropriate illustration.

Thus, when told that

a "matter of state"

was involved, the

King's Bench remanded Darnel and the others to their

jailers.

One

50

::

HABEAS CORPUS

of the judges declared, "This

is

the greatest cause ever

knew

I

in

and another judge asked how any person could be

this court,"

"delivered" by the court Justice Nicholas

if it

did not respect

Hyde added, "This

is

Magna

Carta. Chief

a case of very great weight

and expection" and spoke of the possibiHty of "a perpetual imprisonment."

person

is

He

noted that the court had to decide whether,

committed by the king's authority and the return

writ of habeas corpus does not declare the cause of

to the

commitment,

the court must deliver him. If no cause was stated, he ruled,

presumed

be for matter of

to

of" And on

state,

if a

"it is

which we cannot take notice

such reasoning, the king's authority superseded the

great writ.

One

Parliament agreed.

of

resolutions,

its

which the king was

obliged to affirm in the Petition of Right of 1628, was that habeas

corpus must be available in any case of imprisonment so that a court could examine the cause even

if

had ordered the commitment. But

they claimed reason of state,

the court canceled the writ.

The

if

the king or Privy Council

king

lost

only his authority to

imprison without declaring the cause for his order on the return to the writ.

Commons

also stated, inaccurately, that the writ of

habeas corpus derived from

Magna Carta. Such an error resonated

the writ's association with liberty. Although the link between the writ of habeas corpus and

became

Carta lacked historical

historical fact as popular belief

two were

that the

once

Magna

a feudal

tied together. In the

fact,

it

developed the conviction

same way Magna Carta,

document protecting only the

nobility,

had become a

constitutional guarantee of due process of law and fair procedure.

The

Petition of Right of 1628

ment by

ended the

last vestige

of govern-

divine right of kings. Parliament declared that the

mitment of those

like

Darnel who had refused

the king had violated

Magna

Carta, and

to "loan"

"when

com-

money

to

for their deliv-

erance they were brought before your justices by

.

.

.

habeas

corpus," the returns showed no cause of commitment. Yet they

HABEAS CORPUS

::

51

"were returned back to several prisons, without being charged with any thing to which they might make answer according to the law." Consequently, the Petition of Right

promised that without

authorization by Parliament, no person could be forced to

make

a

loan to the king or be imprisoned for his refusal.

In 1629 Charles Right.

I

He imprisoned

betrayed the principle of the Petition of six

opponents, members of Parliament, "for

notable contempt, stirring

up

That was the

sedition against us."

language of the return to the writ. Counsel

for the prisoners ob-

served that according to the Petition of Right the return was insufficient.

Attorney General Heath responded that the Petition of

Right was not a

law,

meaning not an enactment or

force of law. Accordingly,

not be stretched.

It

Heath concluded,

its

statute with

language should

merely had reconfirmed the ancient

the subject without adding anything

new

liberties

of

In Chamber's case,

moreover, also in 1629, the King's Bench rejected the argument that the

Court of Star Chamber had no authority

mere words. Not

until 1641,

Chamber and passed become

effective.

the

when Parliament

to

imprison for

abolished the Star

Habeas Corpus Act, did the writ again

The new measure

guaranteed that the writ

should be issued without delay to anyone imprisoned by of the king or his councillors; certify the

it

imprisonment's cause, and

decide within three days whether the legal, or not."

triple

A

damages

Anyone who

command

also obliged the officer in charge to

failed to

it

required the court to

commitment was obey the

act

was

"just

and

liable for

to the offended party.

statute of 1649 authorized habeas corpus for

anyone whose

imprisonment resulted from breach of contract or bad debt. But Oliver Cromwell defied laws not of his making or liking; he authorized his officers not to

honor writs of habeas corpus

in cases in

which imprisonment resulted from violation of various public policies

of his administration.

critic

And

in 1653,

when one John

Streater, a

of Cromwell, was imprisoned by the government because of

52

::

HABEAS CORPUS

his seditious publications, the high court of the

acknowledged that the return did not mention the

titles

to its writ

was

Commonweahh

insufficient because

of Streater's publication;

still

it

the court

refused to challenge the government and remanded the prisoner. After Parliament's dissolution, Streater had another hearing before the

same court on habeas corpus and won

a dismissal.

The

next year, the court heard a case on habeas corpus involving one

Cony,

who had

refused to pay a tax that he regarded as

Cromwell summoned the judges, reprimanded them the safety of the

Commonwealth, and cursed Magna

advised the judges not to suffer lawyers

should not hear.

opposing

Carta; he also

prated what they

When Cony's lawyers persisted in defending him,

Cromwell sent them

to the

Tower of London, where they

guished until they submitted to his

During Richard Cromwell's to islands

who

for

illegal.

some prisoners were

reign,

beyond England. Parliament resolved

prisonments were

"illegal,

lan-

will.

sent

that such im-

unjust and tyrannical," because the

"sending of prisoners beyond the reach of the writ of habeas

corpus and of the courts was, in

effect, a

banishment," and no

Englishman could be lawfully banished except by Parliament. But

Cromwell dissolved Parliament before oners.

When

worked

it

could liberate these pris-

the Stuarts were restored, the writ of habeas corpus

effectively except, as before, in cases of political prisoners.

Supporters of the writ sought to correct

its

defects but could not

muster a majority. After a mass meeting of Quakers in 1670, the Quaker leaders

William Penn and William

When

Mead were tried

for unlawful assembly.

the jurors were asked for their verdict they would only say,

"Guilty of preaching in Grace Church Street." Prompted to add "unlawful assembly," the jury refused.

The

court threatened to

hold the jurors in confinement "without meat, drink, tobacco," and even without "so much

remained obstinate

as a

fire,

and

chamber-pot," but they

until finally, in outright defiance of the court.

HABEAS CORPUS

::

53

they acquitted the prisoners. Rejecting the verdict as contrary to the evidence, the court fined both prisoners and jurors and im-

prisoned them

One

all

nonpayment.

for

of the jurors was Edward Bushell,

Court of

viction to the

The

habeas corpus for him.

Corpus

is

now

Common

who appealed which issued

court declared:

his con-

a writ of

"The Writ of Habeas

remedy by which

the most usual

again to his liberty,

Pleas,

a

man

is

restored

he have been against law deprived of

if

Therefore the writ commands the day," and the return to certify the reason for the

imprisonment "as

commitment conformed

cient the prisoner said,

and cer-

to the law; if the return

was

insuffi-

would be discharged. In Bushell's case the court

know from

could not

it

must

permit the court to judge whether

tainly as possible" in order to

the

specifically

it

it.

ment was justified; the return

the evidence whether his

commit-

to the writ did not say that the jurors

had acquitted him even though they knew from the evidence that he was

guilty.

The

judge could not direct a verdict of guilty with-

out making the jury superfluous. Incidentally, nowadays a judge

may set aside a guilty verdict if he or does not warrant

it,

reverse a verdict of not guilty. that a jury

she believes that the evidence

but as a result of Bushell's case judges cannot

may render

The

case estabHshed the principle

a verdict in accord

with

regardless of the evidence. Thus, guilty persons

because the jury

pened

may

its

convictions,

may be

acquitted

not wish to punish their crimes. That hap-

in 1735 in a celebrated case involving John Peter Zenger.

In the Jenckes case of 1676, the prisoner was arrested for his

supposedly "seditious and mutinous manner" because

London he had

meeting

in

elected.

The

lier

sitting

called for a

at a

pubHc

new Parliament

to

be

Parliament had been elected fifteen years ear-

and Jenckes had respectfully recommended

a public petition to

the king that he order

new

headed by Charles

ordered Jenckes's commitment.

II,

elections; instead, the Privy Council,

justice refused to grant a writ

The

chief

of habeas corpus because the court

54

HABEAS CORPUS

::

was on vacation; the lord chancellor

also refused to grant the writ.

Jenckes rotted in prison throughout the hot

summer.

No

inferior

judge would grant him the writ in defiance of the lord chancellor,

though under the Petition of Right the prisoner was for the

purpose of getting a

commitment was

his

judicial hearing to

lawful.

Counsel

entitled to

it

determine whether

for Jenckes vainly sought the

writ in one court after another. Finally the lord chancellor, feeling guilty about having denied the writ in violation of law,

Charles

The

II that

Jenckes was entitled to

it,

and the king relented.

some of the

Jenckes case revealed

defects in the pro-

cedures by which the writ was obtained. In 1679,

Parliament finally met, a

bill

informed

when

a

new

was introduced "for the better secur-

ing of the liberty of the subject, and the prevention of imprison-

ment beyond

the seas."

Such imprisonment stymied the

writ.

Parliament passed the great Habeas Corpus Act of 1679, which tightened procedures by dealing with every possible evasion or trick of the king, his ministers,

statute resulted in a fine of one

offense double that amount. to

and

jailers.

Neglect in obeying the

hundred pounds and

The

for the

act also specified that

second

no one was

be imprisoned beyond England out of reach of the writ and that

the writ had to be issued even during vacation periods. After the

enactment of 1679, habeas corpus became routine, and few cases merit reporting.

One important

case occurred in 1763 because of John Wilkes's

studied insult to the king, published in Wilkes's North Briton, No. 45. After he

was convicted

writ of habeas corpus for

but

at

an hour too

for seditious libel, his friends secured a

him from

late in the

delay allowed Wilkes's

day

jailer to

then another. All persons

the Court of

for the writ to

move

who

brother, were denied admission.

Common

be processed.

Pleas

The

him to another prison— and

tried to see

When

him, including

a

his jailers finally returned

the writ of habeas corpus, they stated that Wilkes was no longer in their custody. Wilkes's counsel insisted that they should acknowl-

HABEAS CORPUS

::

55

edge when he was taken from their custody and by what authority.

The

matter was

left

unresolved, even though the court agreed

with the defense attorneys.

was directed

that

to the

They obtained

second habeas corpus

head of the Tower of London. Although

Wilkes's counsel sought his discharge,

but one.

a

all

their

arguments

failed

When they informed the court that Wilkes was a member

of Parliament and "privileged from being arrested" unless for trea-

son or felony. Lord Chief Justice Charles Pratt decided favor and ordered his release. Wilkes's crime

in Wilkes's

was only

a

misde-

meanor. Nevertheless, Parliament resolved that the exemption of its

members from

arrest did not extend to seditious libelers

and

expelled Wilkes, but he was already free thanks to the writ of

habeas corpus.

A few years after the Wilkes case.

Sir William Blackstone

lished his influential Commentaries, in

pub-

which he described the writ

of habeas corpus as "the most celebrated writ in the English law,"

one that

is

"a high prerogative writ" issuable at any time and in

any of the king's dominions. able of common right"

dom"

that superseded

It

was, Blackstone said, a writ "grant-

and

available to "every subject of the king-

all

other proceedings and should not be

evaded or delayed.

The

writ was triumphant and had great consequences in the

case of James Sommersett, a black

While he was aboard orders to

on

sail to

slave

in

held in slavery, in 1772.

London, which awaited

Lord Chief Justice William Murray Mansfield.

return to the writ revealed that Sommersett was claimed as a

by

to prove for

man

docked

Jamaica, antislavery supporters secured the writ

his behalf from

The

a ship

a

man who had purchased him

it,

and had taken him along on

in Virginia,

had

a contract

a trip to England.

Counsel

Sommersett, making an argument that the court endorsed,

declared that English air "is too pure for a slave to breathe." field

ject

Mans-

observed that "the person of the slave himself" was the "ob-

of enquiry," not the contract for his purchase. In Virginia and

56

::

HABEAS CORPUS

Jamaica he might be chattel, but the return to the writ of habeas corpus raised the question whether claiming him as a slave was a sufficient reason for his ery,

being held involuntarily in England. Slav-

Mansfield declared, could exist only

lowed and protected

it,

law

if positive, local

but England had no law "so odious." Con-

sequently no legal basis existed for keeping a person as a

Sommersett was cipated in

freed,

al-

and thereafter sojourner

England— and

slaves

slave.

were eman-

in the

United States where northern

The

law of habeas corpus led them

judges emulated Mansfield. to emancipation.

In America

little is

heard about the writ until the later seven-

teenth century, perhaps because legislative, executive, and judicial

powers were scarcely distinguished, and lawyers, even law books, were

The

scarce.

early colonies, moreover, did not rely

on im-

prisonment; they preferred the whipping post, the stocks, and fines.

Thus, the writ of habeas corpus had no history

the 1600S in America. case of

seems

It first

for

appeared in 1664 in the

Waddel Cunningham, but no other reference

much

New

of

York

to the writ

appear until 1683 in the Beverley case in Virginia. Robert

to

Beverley, the clerk of the Virginia

House of Burgesses, refused

to

provide copies of the house's journals to the governor and his executive council, without permission of the house. jailed

The

council

him, and when he applied for a writ of habeas corpus the

council intervened to prevent

been referred York, where

to

England.

it first

its

The

issuance because the matter had writ was equally futile in

surfaced in 1679,

on order of the lieutenant governor

New

when one Fransa was arrested for

breach of the peace.

How-

ever, a court liberated Fransa on a writ of habeas corpus on learn-

ing that he had been arrested under the

New

wrong

statute.

York's 1683 charter provided that government should be

according to the laws of England. that they

had

New Yorkers therefore assumed

a right to the writ, yet in

England disallowed the provision

1684 the Privy Council in

for the writ because "this priv-

HABEAS CORPUS

ilege

::

57

not granted to any of His Majesties Plantations where the

is

Act of Habeas Corpus and 1689, however, the

was imprisoned

other such

all

common

bills

law writ freed Philip French after he

for protesting a tax "in a

When a court denied bail,

most insolent manner."

French's counsel obtained the writ, but

the lieutenant governor successfully defied released only after

1707

New

do not take place." In

making

it,

and French was

a deferential submission to him. In

York arrested Francis Makemie and John Hampton,

Presbyterian ministers accused of preaching their "pernicious doctrine" without a license.

The two

imprisonment by seeking the

Mompesson

The

granted. At their

writ,

trial

applied for release from

which Chief Justice Roger

the jury acquitted them.

writ also featured in the celebrated case of

Zenger, the printer

who was prosecuted

John Peter

for seditious libel of Gov-

ernor William Cosby of New York. Zenger's counsel, knowing that

under the law he was guilty of having published criminal material, appealed to the jury to acquit him even though the law was against

him. If the jury had behaved in an orthodox manner,

it

would have

rendered a verdict only on the question whether Zenger had in published the matter specified in the indictment and would

fact

have

left to

the court a decision on the question whether he had

violated the law. Cosby's flunkies kept

Zenger incommunicado

for

three days until his counsel obtained a writ of habeas corpus, and

he was freed on dist

bail.

In the 1770 case of the American propagan-

Alexander McDougall, the prisoner was arrested on order of

the speaker of the house,

who

threatened to throw

McDougall out

of the window; the speaker acted, however, only after a vote of the

house condemned the prisoner for having breached parliamentary privilege.

sheriff

When McDougall secured the writ of habeas corpus, the

who

held

him refused

to free

him because

had ordered the

sheriff not to recognize the writ.

legislature's will

triumphed over habeas corpus.

The

the legislature

Once again

writ was unavailable for a time in Massachusetts.

the

Under

58

::

HABEAS CORPUS

Governor Edmund Andros, the executive council

town taxes without consulting the

legislature.

A

in 1687 levied

town meeting

Ipswich, led by the Reverend John Wise, regarded the

pay them. Governor Andros ordered Wise's

illegal

and refused

arrest

and imprisoned him and

to

in

new taxes as

five supporters.

When

the pris-

oners applied for a writ of habeas corpus, the chief judge of the province, Joseph Dudley, denied

think the

Laws of England

it,

declaring that they must "not

follow [them] to the ends of the earth or

whither [they] went." Contemptuously dismissing the argument that the

imprisonment violated Magna Carta, the judge remarked

that the only privilege that the prisoners possessed

sold as a slave."

The

by

to

be

prisoners were tried by a packed jury, which

found them guilty and fined them of habeas corpus nor

was "not

Magna

heavily.

Thus, neither the writ

Carta had any force

when confronted

a court that either feared or followed a powerful executive.

Later that year, however, the Massachusetts legislature authorized defendants to remove cases by habeas corpus to the supreme judicial

court of the province and

powers comparable

to those

empowered

of the courts

at

that court to exercise

Westminster, in effect

granting them power to issue the writ of habeas corpus as a com-

mon

law writ. Cotton Mather no longer had to complain that the

people of Massachusetts were "slaves." In 1692, under a

new

governor, the Massachusetts legislature

enacted one law providing that

its

consent was necessary before

any tax could be exacted and another law modeled on England's

Habeas Corpus Act of 1679. The Massachusetts available even to persons

act

made

the writ

imprisoned for treason and felony until

they were indicted at the next term of court.

The

vetoed both measures, saying of the second one, as

Privy Council it

had

said in

1684 of New York's protection of habeas corpus, that the writ "has not yet been granted to any of His Majesty's Plantations." But the

common

law writ was available for prisoners whose friends or

lawyers were savvy enough to invoke

it.

The

statutory efforts of

HABEAS CORPUS

59

::

Pennsylvania and South Carolina to make the writ available were

England.

also voided in

South Carolinians

The

writ had briefly

as a result of an act

become

available to

by their legislature in 1692,

which copied the provisions of the Habeas Corpus Act of 1679.

The

proprietors in England vetoed the measure

on ground

was unnecessary because Carolinians were subject

The

facts

recommended

to the

England.

that

it

to the laws of

showed otherwise. In 1700 South Carolina Board of Trade

"that,

it

governors to imprison the subjects without act should

be extended as

England."

The Board

being the practice for

bail,

the habeas corpus

fully as possible to the colonies as

it is

in

of Trade rejected the recommendation. In

1706 Queen Anne ordered the royal governors not to endorse any assembly

bills

"wherein our prerogative

.

.

.

may be prejudiced."

In

17 10 Governor Alexander Spotswood received orders from the

queen

to extend the writ of habeas

did in

all

corpus to Virginia, which he

cases not involving treason or felony.

A

statute of

1

71

again extended the English act of 1679 to every Carolinian, north

and south, "as gland." In or the Free

1

if

he were personally in the said

when an

72 1

Kingdom of En-

edition of Henry Care's English Liberties,

Born Subject 's Inheritance was published

Boston,

in

it

contained a copy of the act of 1679 together with copies of Magna Carta, the Petition of Right, and the Bill of Rights. In 1730 the

governors of both Carolinas were instructed to proclaim the availabihty of the writ, and in 1749 North Carolina added statutory protections of the writ. Earlier, in 1719,

Delaware had authorized the

to issue writs of habeas corpus,

ture had passed an act that

and

high court

state's

in 1722, Pennsylvania's legisla-

empowered

its

courts to issue the writ.

However, anyone accused of breach of parliamentary privilege discovered that the writ of habeas corpus meant nothing to an affronted assembly. Parliamentary privilege referred to a bundle of rights that each

freedom from

house claimed and exercised.

Among

these were

arrest, access to the executive, passing

upon the

60

credentials of

::

HABEAS CORPUS

members, freedom of speech, and the power of

No

punishing anyone for violations of privilege.

doned freedom of speech

for

assembly con-

nonmembers. The unauthorized

re-

porting of legislative proceedings and reflections on either house or any of their

members, or on the government

regarded as seditious

libels,

ture as breach of privilege. Guilty parties were ined, ties

and summarily

generally,

were

subject to prosecution by the legisla-

tried, their publications

summoned, exam-

burned, and the par-

humiliated, usually on their knees, begging forgiveness before

the bar of the offended house.

Anyone found

guilty could be

im-

prisoned for the Hfe of the assembly's session.

Habeas corpus remained

ineffective for political prisoners, as

the Cooper case illustrated. In 1732 the South Carolina legislature

ordered the imprisonment of one petition that insulted

Thomas Cooper who had

filed a

some members. Chief Justice Robert Wright

granted Cooper's request for a habeas corpus, thereby provoking the anger of legislators

who

parliamentary privileges.

believed that the court had breached

They ordered

that the court's writ be

ignored and arrested Cooper's attorneys. In vain the lawyers petitioned the governor and council for their release.

who was

a

member of

the council, criticized the legislature; he

believed that the council's insistence that ilege took

dinary."

It

The chief justice,

its

parliamentary priv-

precedence over the writ of habeas corpus was "extraortended, he said, "to the subversion of all government by

disallowing his Majesty's undoubted prerogative, removing

all

obedience to his writ of habeas corpus, and assuming to themselves

power

to abrogate

and make void the known laws of the land

by arbitrarily imprisoning their fellow subjects." But Wright spoke only for a minority of the council.

The

actions of the legislature, holding that

it

majority endorsed the

could authorize the im-

prisonment of anyone breaching parliamentary privilege and that in

such cases the writ of habeas corpus should not be granted.

Thus, the

legislative will

superseded the writ

in

South Caro-

HABEAS CORPUS

lina, a fact

emphasized

members of the

in the

legislature

and

a writ of

61

1732 passage of an act granting to to judges

munity against any person seeking obeying

::

to sue

who supported them imthem

for refusing or not

habeas corpus. Although Chief Justice Wright

defended the writ as a guarantee of the liberty of the subject, the governor supported the legislature and sought the additional support of the Council of Trade and Plantations in London. But the

lawyer

who advised

South Carolina an

the council called the suspension of the writ in

illegal

in

South CaroHna. In

Zenger,

New

for the writ, but

so high, at four until his trial

council therefore reinstated the writ

York

who was imprisoned

by applying

is

infringement of the liberty of the subject

The

that the writ protected.

in 1735, counsel for

for seditious libel,

hundred pounds,

In Georgia, the

is

sought to free him

Chief Justice James DeLancey

ended eight months

ineffective if bail

John Peter

that

later.

set bail

Zenger languished

The

in jail

writ of habeas corpus

excessive.

last

of the original thirteen states to be founded,

the writ encountered no problems because the royal governor in-

troduced

it

on instructions of the crown. But

in

New Jersey,

an

unusual situation developed because of judicial hostility to the prisoner.

When Thomas Gordon,

committed

the speaker of the house, was

for political differences with the executive council,

Judge William Pinhorne of the to issue a writ of habeas

state

supreme court simply refused

corpus for him. Even though the assembly

accused the lieutenant governor of subverting the liberties of the people,

Gordon would have remained

in prison

that he hired as his counsel the judge's son,

him

but for the fact

who managed

to get

bailed.

The

writ was impotent

in Pennsylvania in 1757.

of the court of criticized the

common

when confronted by an

irate legislature

William Moore, the Anglican chief judge pleas of Chester County, Pennsylvania,

Quaker assembly's war

prisoned and tried him for seditious

The assembly imUpon his conviction.

policies. libel.

62

the

hangman burned

::

HABEAS CORPUS

his offensive pubUcations,

and the assembly

ordered the sheriff to hold him in prison until such time as the

The assembly

assembly might authorize his discharge.

also or-

dered the sheriff that "he do not obey any Writ oi Habeas Corpus, or other Writ whatsoever, that

may come

to his

hands

for bailing

and discharging" Moore. The assembly's flagrant contempt of the writ, especially in a case of

mere misdemeanor

in the

form of

breach of privilege, comported more with the conduct of a Stuart despot than with the principles of law.

Because the Reverend William Smith, one of the colony's most

prominent Anglicans and president of the college that became the University of Pennsylvania, openly supported Moore, he, too, was

imprisoned in 1758. Before Smith's

trial

voted that he was guilty of publishing a

was condemned

imprisonment

to

until

began, the assembly

libel.

On

conviction, he

he should give "satisfac-

tion" to the assembly for his offense. Smith's defense of himself

roused people in the courtroom to applause, resulting in their

imprisonment

for breach of privilege

an indefinite period. should not, on his

Moore

and Smith's commitment

The assembly commanded

peril,

obey

for

the sheriff that he

a writ of habeas corpus.

Smith and

petitioned the chief judge of the province's highest court

for the writ, but

he ruled that the petitioners, having been com-

mitted by the house for breach of privilege, could not be granted the writ nor be bailed during the sitting of the house.

nor also refused to intercede on their

when

only after the house adjourned, but their reimprisonment.

Smith, having

Moore could

fled to

England

The

behalf They were it

reconvened

gover-

released it

sought

not be found.

to plead his case before the Privy

Council, confronted Benjamin Franklin, the assembly's

agent in England. Franklin, bler of Libels," vigorously to imprison for libels

who

official

characterized Smith as a "Scrib-

championed the power of the assembly

and breaches of privilege. The Privy Council

agreed with Franklin that Smith and

Moore had

libeled the

house

HABEAS CORPUS

63

::

but ruled that "these inferior assembHes in America" could not

imprison anyone for breach of privilege, nor could they suspend the writ of habeas corpus.

Smith and Moore were

thanks to the writ, which lacked efficacy

outraged legislature intent on punishing In

New

finally free,

no

when confronted by an

its critics.

Cunningham, who was im-

York, in 1764, Waddell

prisoned for assault and battery, received a writ of habeas corpus,

him

freeing

until his case

came up

for trial at the next

court. Six years later, in the case of Alexander critic

term of

McDougall,

a feisty

of the provincial assembly, the writ was of little avail because

the prisoner could not

McDougall's was

make

the extremely high cost of bail.

a political case, as Zenger's was, with the result

that a hostile court fixed bail as a

means of thwarting the

writ.

Before the American Revolution, the writ of habeas corpus was

known

in all the colonies,

though

some and was not often invoked

it

was not obeyed by

in others. In

officials in

some, such as

New

York, the writ seems to have a spotty and infrequent history. But colonial

Americans

sufficiently valued

be used as a propaganda point.

When,

it

so that

its

denial could

for example, the colonies

sought to attract Quebec to their cause, they criticized the British for not having

extended the writ to Quebec. Congress said of the

residents of Quebec,

"They

are

now

the subjects of an arbitrary

government, deprived of trial by jury and when imprisoned, cannot claim the benefits of the habeas corpus

and palladium of English

The American

act, that great

bulwark

liberty."

Revolution generated the most creative consti-

tutional achievements in history, including the world's first writ-

ten constitutions and bills of rights. to protect the writ of

North CaroHna, the

first state

habeas corpus constitutionally, did so by a

generous provision that, oddly, did not include an exception for suspension during emergencies: "That every freeman restrained of his Hberty, thereof,

and

is

to

entitled to a remedy, to enquire into the lawfulness

remove the same,

if unlawful;

and that such remedy

64

::

HABEAS CORPUS

ought not to be denied or delayed." Only four other statesGeorgia, Pennsylvania, Massachusetts, and constitutionally guaranteed the writ; ute;

Rhode

New Hampshire—

Island did so by stat-

and Vermont, which joined the Union before the federal

of Rights was adopted, was the seventh state to do

North Carolina allowed

for suspension of the writ

so.

Bill

All but

during emer-

gencies. All fourteen states in 1791 respected the writ in judicial practice, if

not by their constitutions or statutes, because

common

adopted the English

Constitution-writing at the time was pretty affair

anyway.

Of the

all

law.

much

a

haphazard

twelve states that had written constitutions

but Rhode Island and Cqnnecticut), only two, Pennsylvania

(all

and Vermont, constitutionally protected freedom of speech. One cannot assume that constitutional protection was regarded as unnecessary simply because the writ was so highly respected. Trial

by jury ranked

high in American opinion yet was constitu-

as

tionally protected, rather than taken for granted,

other right; indeed,

There

is

twelve state constitutions protected

all

no rational explanation why four

tionally protect

freedom of the

press; or

tion of Rights of 1776 omitted a

jeopardy,

and ex post

more than any

facto laws

states did not constitu-

why the Virginia Declara-

ban on

and

it.

bills

of attainder, double

failed to include the right to

counsel, grand jury proceedings, and separation of church and state, as well as the writ

either

why

double jeopardy; or

why

of habeas corpus. There

is

no explanation

eleven states with written constitutions were silent on

why

nine ignored grand jury proceedings; or

seven had no ban on general search warrants and six permit-

ted establishments of religion; or

why

five failed to protect the

rights of assembly, petition, representation trial in civil cases;

or

why

by counsel, and jury

four said nothing about excessive fines,

excessive bail, and compulsory self-incrimination.

Habeas corpus fared better

in

Congress.

The Northwest Ordi-

nance of 1787, passed by the Congress of the Confederation

for

HABEAS CORPUS

::

65

the governance of the Northwest Territory, provided that the inhabitants of the territory should "always be entitled to the benefits

of the writs of habeas corpus and the

trial

by

jury," but the Articles

of Confederation had no such protection.

At the Philadelphia Constitutional Convention, Charles Pinckney proposed: "The privileges and benefits of the writ of habeas corpus shall be enjoyed in this government in the most expeditious

and ample manner: and

shall

not be suspended by the Legislature

except upon the most urgent and pressing occasion and for a time period not exceeding" an unspecified

number of months. The

phrase "in this government" meant that in proceedings before federal authorities, the writ

would be available

to federal prisoners.

Pinckney had substantially followed the provision of the Massachusetts constitution of 1780.

During the course of debate on

Pinckney 's motion, he urged that no suspension of the writ should be for more than twelve months. John Rutledge of South Carolina

responded that he did not think a suspension would ever be necessary "at the

same time through

New

Morris of

all

the States," but Gouverneur

York moved that the writ could be suspended

"where

in cases of Rebellion or invasion the public Safety

require

it."

James Wilson of Pennsylvania,

like

may

Rutledge, doubted

whether a suspension would ever be necessary, and he endorsed the discretionary authority of judges to decide whether to issue the writ or keep a prisoner in

jail.

The Convention adopted

Morris's

motion, and the Committee on Style placed the habeas corpus provision in the article of the Constitution dealing with Congress.

In The Federalist, Alexander Hamilton vainly sought to defend

who urged

the Constitution from

its

because

of rights. Hamilton observed that the Con-

it

lacked a

bill

stitution protected trial

attackers

by jury

against ratification

in criminal cases

and provided

for

habeas corpus "in the most ample manner." Jefferson, from Paris,

had

a

good deal more

to say

about the habeas corpus provision of

the proposed Constitution. Writing to Madison, he asked

why

the

66

::

HABEAS CORPUS

writ should be suspended during insurrections and rebellions in

view of the

fact that insurrectionists, like

public crimes, would be arrested;

if

any persons charged with

the public safety required, he

thought, a person could be imprisoned on less evidence than

showed probable lieved,

cause.

The

history of England, Jefferson be-

showed "how few of the cases of suspension of the Habeas

corpus act have been worthy of that suspension." Those cases had involved treason, whether real or sham. In the "few" cases in

which the suspension of the writ had "done tion

is

now become

prepared to

A

live

few days

explicit his

constant suspension."

it's [sic]

another

later, in

recommendations

letter to

for

and been refused

"No

be held in

days after such writ shall have been served

for his

hours in any place the usual residence of

in

confinement and no order given on

remandment

or discharge, nor

more than

than

miles from

at a greater distance

some judge authorised

shall that writ

ing one year nor in any place station or

shall

days after they shall have demanded

on the person holding him

Hab. Corp. nor

person

a writ of Hab. Corp. by the judge appointed by

law nor more than

due examination

Madison, Jefferson made

improving the habeas corpus

clause in the proposed Constitution:

confinement more than

good, that opera-

and the minds of the nation almost

habitual,

under

real

more than

encampment of enemies

who prepared amendments

to issue the writ of

be suspended for any term exceedmiles distant from the

or of insurgents." Madison,

constituting a

bill

of rights, failed to

make use of Jefferson's recommendation. When gress established a system of federal courts,

it

the First

Con-

empowered them

to

grant the writ of habeas corpus "for the purpose of inquiry into the

cause of commitment." In 1807 in the case

Supreme Court ruled

o^Ex Parte Bollman the

that the authority to issue the writ

was an

essential characteristic of judicial power, appropriately provided for

by

act of

Congress and supported by precedent. Chief Justice

John Marshall

for the

Court said of the habeas corpus provision

in

HABEAS CORPUS the Constitution that Congress

felt its

::

67

"pecuHar force" by sensing

an obligation to establish "efficient means whereby this great constitutional privilege should receive life

means be not

and

activity; for if the

in existence, the privilege itself

though no law for

its

would be

suspension should be enacted.

impression of this obhgation, they give to

all

lost, al-

Under

the

courts the power of

awarding writs of habeas corpus." Thus, the Court completed the reception of the writ into American law.

CHAPTER THREE

Bills

T

f

^r

ofAttainder

\HE CONSTITUTION denies to both Congress and the states the power to enact bills of attainder, which are legislative findings that a identifiable

one

is

named

guilty of a crime

individual or an

and must

suffer

death as punishment. Bills of attainder wholly circumvent the judicial system. In effect they are egregious violations of due pro-

cess of law

and specimens of unfairness. Parliament devised

attainder as a

means of

retaliating against individuals

regarded as objectionable or their victims all

by authorizing

their properties,

legislative infliction bill

both

hostile. Bills

whom

it

and the forfeiture of

and personal,

to the

crown.

The

of a punishment short of death was called a

of pains and penalties.

We know

that the last bill of attainder passed

by Parliament

occurred in 1798, but we do not know the date of the

first

of the earliest was the attainder of the earl of Lancaster,

executed in 1322. In 1397

had the audacity ard

of

of attainder punished

their execution

real

bills

II

one.

One

who was

Thomas Haxey, a prominent clergyman,

to protest against royal extravagance.

King Rich-

urged that Haxey be attainted, and Parliament complied

with a far-fetched enactment that anyone 68

who sought

to induce

BILLS OF ATTAINDER

remedy

the legislature to reform or

69

::

a situation pertaining to the

king or his governance should be deemed guilty of treason. Haxey

escaped the death sentence only because he was a clergyman and

on

benefited from the intervention

archbishop of Canterbury. Richard

when Henry IV succeeded the

new king

to restore

episode involving

Thomas Arundel,

his behalf by II finally

pardoned Haxey, and

to the throne. Parliament

Haxey

him showed

to his rank

that an

the legislature risked attainder and

persuaded

and properties. The

opponent of the crown or of

its

terrible penalties.

A more formidable person whom Parliament attainted was Jack Cade of Kent, an experienced scent. In 1450, following

French, Cade marched on

men, forcing the king

who

soldier

Henry

London

to flee. After

days Cade was forced to retreat.

boasted of royal de-

Normandy

VI's loss of at the

to the

head of four thousand

occupying London for several

The

king's council granted a

general amnesty to his followers but off'ered a price of one thou-

sand pounds for Cade, dead or killed.

Even

passing a

after his

bill

alive.

He was

soon captured and

death Parliament revenged

itself

on him by

of attainder whose only purpose was to cause the

forfeiture of all his properties

and

to corrupt his

blood— that

is,

to

prevent any heirs from enjoying an inheritance from him.

As time passed. Parliament found effective

that

means of eliminating undesired

tainders possessed merit as a ministers.

Henry VIII found

some of his unwanted

way of

impeachment was an

officers

of

state,

but at-

retaliating against strong

attainders useful, too, in eliminating

wives. Attainders

had the attractiveness of

preventing their victims from presenting a defense, but because the king might veto a

became more

bill

attractive; a

his influence at court in fell

of attainder, impeachments ultimately

crown

favorite could not benefit

an impeachment

case.

Thomas

into a state of desuetude until the sensational case of

Wentworth, the

earl

of Stratford, a confidant of Charles

ment not only impeached him;

it

from

BiUs of attainder

I.

Parlia-

found him guilty of high treason

70

and attainted him

BILLS OF ATTAINDER

::

in 1641.

His beheading was

a spectacle wit-

down

nessed by stupendous crowds. Bills of attainder also brought

Archbishop William Laud 1667 the

earl

in 1645

and the regicides

fled the country.

Parliament banished him after passing a

pains and penalties against him.

The duke

illegitimate son of Charles II, also suffered

Sir

in 1660. In

of Clarendon was impeached for high treason and

of

from

bill

Monmouth,

of

the

a bill of attainder.

John Fenwick, who had been mainly responsible

for

mouth's attainder, was himself the victim of an attainder

Mon-

in

1692

by the House of Commons. Because kings enjoyed considerably greater personal security after the Stuarts, attainders

became extremely

House of Lords

Swift's ridicule of the

scarce.

resulted in a

Jonathan

bill

of pains

and penalties against him. In 1798 Lord Edward Fitzgerald, who led an Irish rebeUion,

was attainted and died

incurred in his capture.

The

enacted in 1820 against

Queen

who, despite his own

mons failed,

for adultery.

last bill

of wounds

of pains and penalties was

Caroline, the wife of

George

sought her punishment by

infidelities,

The

in prison

IV,

Com-

prosecution against her was tainted and

and since then no Parliament has resorted

to a statute in

order to declare the guilt and punishment of an individual.

When

Blackstone had codified the law of the matter, he emphasized the

consequences of attainder: the forfeiture of properties and corruption of the blood or the incapacity of the guilty party to possess or

transmit property. Bills

of attainder were rare in American history except during

the Revolution.

during the

None were employed by

earlier colonial period.

constitution in 1776

it

was the

provincial legislatures

When Maryland framed its state

first state to

prohibit bills of at-

tainder by providing that "no law to attaint particular persons of

treason or felony ought to be hereafter."

made

in

any

case, or at

any time

Only three other states— New York, Massachusetts,

and Vermont— followed

suit in their original constitutions.

But

BILLS OF ATTAINDER

71

::

New York's ban on attainders made an extraordinary exception by explicitly permitting the legislature to enact

them

for the

purpose

of confiscating the estates of Tory landowners, especially those of

Lords Tryon and Dunmore, former royal governors. also

New

York

suspended the right of Tory members of the bar from practic-

ing their profession. Several states attainted Tories and confiscated their lands dur-

ing the Revolution. Bills of pains and penalties were fairly

mon

wartime

also benefited to escape

What

practices.

passed as a

com-

war measure, however,

Whigs who coveted Tory real estate and even sought

New

from competition with them.

Jersey closed

its

courts to Tory lawyers. In 1776 Pennsylvania attainted no fewer

than 490 individuals by ling

them from

its

name

for high treason as a

means of expel-

borders. Pennsylvania also extended

pains and penalties to clerks, druggists, chemists, and well as attorneys,

its bill

of

notaries as

and even provided that Tory sympathizers could

be additionally punished for pursuing their professions. Doctors

and surgeons suffered

like disabilities

enacted one of the most egregious it

bill

and

penalties. Pennsylvania

of pains and penalties

named some 200 persons who were

to

be seized and either

imprisoned or deported. Several states banned or burned

Tory

when some

publications, a species of literary attainder. Eight states ban-

ished particular Tories. Sometimes the condemnation of a person

was rather compiled

casual. lists

Town

selectmen in Massachusetts, for example,

of people suspected of Tory sentiments, and any

suspects found guilty at a try.

trial

In 1778 Massachusetts

them

to

risked deportation out of the coun-

named about 260

imprisonment or expulsion, under threat of death

returned. In 1779

New

York added another 60 names

whose persons and properties were seized "voluntarily been adherent to victed tion

Tories, subjecting

more than 1,000

George

if

any

to those

for the offense of having

III."

Indeed, that state con-

individuals during the years of the Revolu-

by means of bills of attainder or

bills

of pains and penalties.

72

::

BILLS OF ATTAINDER

John Jay, the chief justice of New York, beHeved

that the state "is

disgraced by injustice too palpable to admit even of palliation."

The most

notorious

the handiwork of

bill

Thomas

of attainder in American history was

Jefferson and involved Josiah Philips,

reputed to be a Tory cutthroat. Philips used a British commission as a shield for plundering

On May

i,

and terrorizing the Virginia countryside.

1778, the governor's council learned that Philips, "the

noted Traitor has again made an insurrection in Princess Anne

Country

at the

head of fifty Men." At

his council's authorization,

Governor Patrick Henry summoned one hundred militiamen and offered a reward of five

dead or

alive.

commander

By

hundred

the end of the

dollars for the capture of Philips,

month word

that the "cowardly" militia

locating the desperadoes; the only "their secret places in the

hope

arrived from the local

had

failed miserably in

lay in flushing

swamp" by removing their Henry placed

them from

relations

and

friends

from the

sembly.

He also consulted Jefferson, then its most influential memlater recalled, "We both thought the best proceeding

ber,

vicinity.

who

would be by a bill of attainder, unless he

up

the matter before the as-

[Philips] delivered himself

for trial within a given time."

The

assembly, without debate, promptly adopted a

bill

of at-

tainder written by Jefferson, providing for the conviction of Josiah Philips for having levied war against the

commonwealth, com-

mitted murder, burned houses, and wasted farms. Alleging that "the usual forms and procedures of the courts of law" would leave the people exposed to further crimes, the

bill

provided that

Philips and his confederates did not surrender to

some

if

lawful

authority within one month, they "shall stand and be convicted

and attainted of high treason, and and incur

And

all

forfeitures [of

all

shall suffer the pains

property, real and personal].

that the good people of this commonwealth

meantime be subject insurgents.

Be

it

of death,

may

.

.

.

not in the

to the unrestrained hostilities of the said

further enacted,

That from and

after the passing

BILLS OF ATTAINDER

of this to

act,

it

shall

::

73

be lawful for any person, with or without orders,

pursue and slay the said Josiah Philips, and any others

been of his associates

Perhaps the most sinister aspect of the declaration of an open hunting season guilt for treason

and murder was

Philips's associates

might be

shared his leader's

guilt.

outrage on

killed

bill

of attainder was

assumed. Any of

on the mere supposition

that he

Guilt by association constituted a patent

civil liberties.

captured after a battle in which one of his bill

its

on the unnamed men whose

legislatively

Within the month Philips and several of

the

who have

for the period of the revolutionary war."

his followers

were

men was killed. Because

of attainder had not yet by law become operative, the

prisoners were regularly indicted and tried. But the crime charged against

them was not high

was robbery— the

pounds of twine, valued was

treason, not even

murder or arson;

men's

theft of twenty-eight

at forty-five shillings.

a capital felony, so that the convicted

felt

Robbery, however,

men were

Jefferson later explained the reason that

it

hats and five

executed.

Edmund Randolph,

then the attorney general of Virginia, pressed only the robbery

Randolph expected Philips

to plead that

he was a British

subject taken in arms, under a commission from

Lord Dunmore,

charge.

in

support of his sovereign, and that he was therefore a prisoner of

war

entitled to the protection of the law of nations. Philips, as a

matter of fact, did make this plea, but

on the ground

it

was rejected by the court

that a citizen's crimes cannot be justified

by a

commission from the enemy. The court might have made the same ruling had the charge been high treason or any of the capital felonies specified in the legislature's bill of attainder.

That only

a

charge of robbery was pressed suggested that the evidence of trea-

son and murder might not stand up in court, making the legislature's

assumption of Philips's

guilt rather arbitrary, as well as

violative of Article VIII of the Virginia Declaration of Rights,

which had been adopted two years

earlier.

That

article

provided

74

BILLS OF ATTAINDER

::

that in any criminal prosecution a person

had a right

to confront

his accusers, call for evidence in his favor,

and enjoy

speedy

a

trial

by an impartial jury without whose unanimous consent he cannot be found

VIII also genuflected to

guilty. Article

Magna

Carta by

providing that no person should be deprived of liberty "except by

The

the law of the land or the judgment of his peers."

reputations

of the legislature and of Jefferson, already stained by the attainder of Philips, were

all

quickly forgot that the crimi-

had been executed

after receiving

due

What was remembered without shame was

the

nals, despite the attainder,

process of law.

names of Ran-

further blotched, as were the

still

dolph and Patrick Henry, because

abhorrent fact that Virginia had employed a In 1788, for example,

when

bill

of attainder.

the Virginia ratifying convention

debated the proposed national constitution, Randolph was irked

beyond endurance by Henry's demagogic complaint was being

sacrificed in the absence of a federal bill of rights. Rising

parchment guarantees were no insurance against

to declare that

legislative violation,

There striking

Randolph reminded the convention:

one example of

is

to

me,

I

reliance

a citizen,

on general

was deprived of his gentleman

reports, a

He

therefore

was attained very speedily and

moved

life

thus:

in the

man

had commited several crimes. And was running ing other crimes.

con-

passively permit a repetition of it, dear as

Delegates informed the house that a certain

ter

of a most

that, if

would seek means of expatriating myself from

I

man, who was then

mere

this violation in Virginia,

and shocking nature— an example so horrid,

my country would

ceived it is

that liberty

it.

from

A a

House of

[Josiah Philips]

at large, perpetrat-

for leave to attaint him.

precipitately, without

He

any proof bet-

than vague reports. Without being confronted with his accusers

and witnesses, without the privilege of behalf, he

was sentenced

ecuted. ...

Randolph

later

at that time.

I

to death,

cannot contemplate

it

without horror.

added that Philips "had

He

calling for evidence in his

and was afterwards actually ex-

a

commision

in his pocket

was, therefore, only a prisoner of war."

BILLS OF ATTAINDER

Randolph had given the impression Hps was the result of the

Henry endorsed

Patrick

bill

.

.

75

that the execution of Phi-

of attainder against him. Amazingly,

the misinformation as fact. Philips, he

argued, had been no Socrates. "He was outlaw.

::

a fugitive

murderer and

Those who declare war against the human

.

race

struck out of existence as soon as they are apprehended.

may be

He was

not executed according to those beautiful legal ceremonies, which are pointed out

by the laws

in criminal cases.

crimes did not entitle him to

it."

The enormity

of his

The enormity of Patrick Henry's

crime was that he did not believe that bad

men were entitled

to the

benefits of the Virginia Declaration of Rights.

Of the

several rejoinders to Henry's defense of the bill of at-

tainder, John Marshall's

was the most

"Can we pretend

incisive.

"when

the enjoyment of political freedom or security," he asked,

we

are told that a

man

to

has been, by an act of Assembly, struck out

of existence without being confronted with his accusers and witnesses, without the benefits of the law of the land? safety,

when we

person was not a

are told that this act Socrates.'^

ber's maxims.^ Is this shall

be deprived of

What

was

justifiable

it

be a

maxim

without the benefit of

that

.

.

.

demonstrated the profound repugnance with which a

work In

to

mema man

life

was

because he was a bad man.?" Marshall's remarks

tainder was regarded by fair-minded

by which

our

such a

law. Shall

deprivation of life be justified by answering, that the man's

not taken

is

because the

has become of the worthy

one of them.^ Shall life

Where

men and

bill

of at-

provided a standard

measure Jefferson's subsequent defense of his handi-

in Philips's case. 1

815, thirty-seven years after the case,

on receiving the

proof sheets of Louis Girardin's continuation of John Burk's History of Virginia, Jefferson

commented

at length

on the Philips

case.

Objecting to quotations from the Virginia debates and from St.

George Tucker's edition of Blackstone, Jefferson recommended that "the

whole of the quotations from Tucker, Randolph and

76

Henry be to

BILLS OF ATTAINDER

::

struck out" and that his

two pages, be inserted

Tucker had written

own version of the case, running According

in their place.

a "diatribe" against bills of attainder, instead

of having defined their "occasion and proper

outlawry and attainder were a

to Jefferson,

office." Legislative

justifiable, Jefferson

contended, when

person charged with a crime withdrew from justice or forcibly

resisted

it.

In such a case the legislature should give

time to appear for

trial

and declare that

him

sufficient

his refusal be taken as a

confession of guilt. Bills

of attainder, Jefferson acknowledged, had been abused in

England, but "what institution hands.^"

As

for Philips,

he had "not come

insusceptible of abuse in wicked

he had been tried by

in before the

Philips been denied jury

duce evidence

is

in his

trial,

own

Jefferson preferred the

bill

law,

though

confrontation, and the right to pro-

behalf, "I

torney General," he claimed,

common

day prescribed." Indeed, had

would have asked of the At-

"why he proposed

or permitted

it.^"

of attainder, which declared the guilt

and fixed the punishment of Philips without court and commonlaw process.

Continuing his attack on Randolph, Jefferson declared that the former attorney general had

meant

that Philips

if

had been de-

nied constitutionally guaranteed procedures on the passage of the attainder,

"how

idle to

charge the legislature with omitting to

confront the culprit with his witnesses, in

arms and

in defiance

of their authority."

Jefferson was sophistical, because idle to

when he was standing out

it

The

observation by

would have been even more

have expected the culprit to surrender when his guilt had

already been explicitly determined and announced by the legislature.

That body had

also declared that "the usual

forms and pro-

cedures of the courts of law," being insufficient, would not be followed. Jefferson's position was baldly exposed

No

when he added:

one pretended then that the perpetrator of crimes who could

successfully resist the officers of justice,

would be protected

in the

BILLS OF ATTAINDER

::

77

continuance of them by the privileges of his citizenship, and that baffling ordinary process, nothing extraordinary could

adopted to protect citizens against him. ciety

had

a right to erase

own

rendered his

from the

roll

exile,

of its

be rightfully

one doubted that so-

members any one who

existence inconsistent with theirs; to withdraw

from him the protection of laws, and

them by

No

or even by death

if

to

remove him from among

necessary.

In forwarding to Patrick Henry's apologetic biographer a copy

of this lengthy

letter to

Girardin, Jefferson concluded: "I was then

[1778] thoroughly persuaded of the correctness of this proceeding,

and is

am more and more

convinced by reflection. If I

an error of principle.

I

know of no

in error,

it

substitute for the process of

outlawry, so familiar to our law, or to act of attainder, duly applied,

am

it's [sic]

kindred process by

which could have reached the case of

Josiah PhiHps." Thus, Jefferson in the end agreed fundamentally

with Patrick Henry's statement of 1788 on the propriety of attainders in certain cases, notwithstanding John Marshall's incisive

answer. Jefferson's position was himself, in 1783, had proposed a explicitly

new constitution

But on careful

dorsed outlawry and the

York resorted

and 1 7 10 but not fact that

bill

of attainder against Philips.

on

slight foothold in

few occasions between 1702

1774 a

New York act referred to the

not used in this Colony," yet the legislature

proclaimed the guilt of Ethan Allen and others for a their surrender to the civil authorities for felony. Allen

and

America.

a

to outlawry

"is

of

reflection, Jefferson in 181 5 strongly en-

thereafter. In

outlawry

bill

any person guilty) of treason or

Outlawry never had more than a

New

for Virginia that

denied to the legislature any power "to pass any

attainder, (or other law declaring

felony."

more surprising because he

the

all

his followers

riot,

requiring

on pain of being

attainted

denounced outlawry and

at-

tainders as unconstitutional.

In 1784 Pennsylvania enacted a

ber Aaron Doane.

bill

of attainder against the rob-

The state supreme court sustained the attainder,

which was not prohibited by the

state constitution,

and sentenced

78

Doane

to

::

BILLS OF ATTAINDER

be executed. However, John Dickinson, then the "presi-

dent" of the

state,

withheld the warrant necessary to complete the

sentence until he should receive from the court satisfactory an-

swers to a series of questions posed by Dickinson. Those questions revealed his implacable hostility to outlawry as a "menacing part of

jurisprudence," "so dangerous a practice," and contrary to the "liberahty of spirit" with which the law should be enforced.

judges of the supreme court, in Respublica

v.

The

Doane, answered

Dickinson's questions and defended their use of outlawry and attainder.

But Dickinson and

his council

rebuked the court for

"establishing a precedent in a capital case, altogether

new

.

.

.

[and]

so dangerous." Dickinson refused to issue the warrant, thereby

preventing the death sentence from being carried out.

When outlawed the same

enacting the Northwest Ordinance in 1787, Congress bills

year,

of attainder. At the Constitutional Convention of

no discussion was required

clauses in Article

I,

for approval of the

sections 9 and 10, banning bills of attainder

by Congress and the

state legislatures. Article III, section 3,

the Constitution declared:

"No

attainder of treason shall

corruption of blood or forfeiture except during the

person attainted."

life

of

work

of the

CHAPTER FOUR

The First Amendment: The Establishment Clause

A /

LTHOUGH

/ /

the Kramers of the Bill of Rights did not

rank the rights in order of importance, some are

VL

*\

more precious than others.

\\

rior

is

the

A right that has no supe-

mentioned: freedom from a law re-

first

specting an establishment of religion.

The

First

Congress recom-

mended

twelve

the

two: as a result, the proposal that originally stood in the

first

third place

cance. ical all

amendments

became the

At the very

least,

first,

to the states,

which

failed to ratify

a fact swollen with symbolic signifi-

establishments of religion

memories associated with

summon histor-

religious persecution. Equality for

opinions on the subject of religion and for the free exercise of

religious conscience cannot exist in the presence of an establish-

ment of rehgion. The legal

union between a

classic establishment

state

of religion denoted a

and a particular church that benefited

from numerous privileges not shared by other churches or by the

nonchurched or unbelievers. fact that stands

An

uncontested and incontestable

out from the establishment clause

is

that the

United States cannot constitutionally enact any law preferring one church over others

Does

in

any manner whatever.

the establishment clause permit government aid to reli79

80

gion?

FIRST AMENDMENT: ESTABLISHMENT

::

Do the views of ChiefJustice Wilham H.

historical vaHdity? In 1985, Jfaffree that the "well

clause

that

is

religion,"

church

Rehnquist have any

he declared in dissent

in Wallace

v.

accepted meaning" of the establishment

merely prohibited the establishment of a "national

it

which he defined

as a national one.

among religious

as the official designation of

The

any

clause also "forbade preference

sects or denominations."

But

it

created no wall of

separation between government and religion, not even between

church and

state.

"The Establishment

Clause," Rehnquist wrote,

"did not require governmental neutrahty between religion and irreligion,

nor did

prohibit the federal government from provid-

it

ing non-discriminatory aid to religion."

The

language of the establishment clause provides few sure taken hterally, the clause creates no wall of separa-

conclusions.

If,

tion, neither

does

preference;

it

it

refer to a national religion or to the concept of

does not permit government preference for religion

over irreligion,

let

alone of one religion or church over others.

does not even restrict gion, because

it

It

itself to

laws banning estabhshments of reli-

more

broadly, to laws "respecting" estab-

applies,

hshments of religion. Therefore,

a law that falls short of creating

an establishment, whatever that might be, comes within the constitutional prohibition if it

that direction.

ment tion

clause

is

But the that

it

on the United

concerns an establishment or

is

a step in

clearest proposition about the establish-

limits

States:

power by placing an absolute "Congress

Reading an empowerment from that

shall

is

restric-

make no law ...

."

about as valid as reading

the entrails of a chicken for the meaning of the establishment clause or for portents of the future.

The

clause was added to the Constitution because the un-

amended seemed

text not only placed religious liberty in jeopardy;

to allow for the implication that

it

Congress might exercise

powers not prohibited and might, therefore, create an establish-

ment of religion— or

so the Constitution's opponents claimed.

To

the supporters of the Constitution, such reasoning was specious

FIRST AMENDMENT: ESTABLISHMENT

81

::

because the proposed new national government would possess

merely limited powers, and none had been granted on any subject that

would be the concern of a

bill

of rights. If no power existed,

could neither be exercised or abused. this

argument, the best known

The

Federalist,

is

it

statements of

that of Alexander

Hamilton

in

where he concluded simply: "For why declare that

things shall not be done which there instance, should

restrained,

Of the many

it

is

no power

to do.^

Why,

for

be said that the liberty of the press shall not be

when no power

given by which restrictions

is

may be

imposed.^" Thus, James Wilson of Pennsylvania, in response to the

contention that the rights of conscience had no security, asserted: "I ask the honorable gentleman,

into the

power of Congress

no power

to attack,

Similarly,

Edmund Randolph

is

idle to

it is

what part of

this

to attack those rights.^

system puts

it

When

is

there

prepare the means of defense."

of Virginia declared that "no power

given expressly to Congress over religion," and he added that

only powers "constitutionally given" could be exercised. James

Madison

said,

government

"There

is

not a shadow of right in the general

to intermeddle with religion."

And Richard Dobbs

Spaight of North Carolina maintained: "As to the subject of gion .... [n]o power fere with

it

at

all.

given to the general government to inter-

is

Any

reli-

act of

Congress on

this subject

would be

a

usurpation." Wilson, Randolph, Madison, and Spaight had at-

tended the Philadelphia Convention. Their remarks show that

Congress was powerless even to enact laws

church or

all

on the subject of

sion of ministers in a bill.

religion,

of the First Amendment,

whether

in favor

of one

of them, impartially and equally. In 1790, before the

ratification of the First

census

in the absence

He

Amendment, Madison opposed

list

the inclu-

of occupations to be covered in the

reasoned that "the general government

scribed from interfering, in any

specting religion; and

it

manner whatever

may be thought

to

do so

is

first

pro-

in matters rein ascertaining

who, and who are not ministers of the gospel."

The

ratification controversy yielded

no evidence that reveals

82

::

FIRST AMENDMENT: ESTABLISHMENT

the understanding at the time of the term "estabhshment of reli-

Some

gion." a

states,

however, proposed amendments that included

ban on establishments.

was the

first to

urge an

amendment on

make no laws touching science."

That proved

New Hampshire, the ninth state to ratify, the subject: "Congress shall

Religion, or to infringe the rights of to be as concise

and perfect

the matter as could be devised, and indeed, vealed the meaning of what would

of the First Amendment. Virginia,

Rhode

Island also

it

a

most

clearly re-

become the equivalent

clauses

New York, North Carolina, and

recommended an amendment on

Virginia, copied verbatim

Con-

statement of

the subject.

by North Carolina and Rhode Island,

urged that "no particular religious sect or society ought to be favored or established, by law, in preference to others," and

York expressed the same thought. In each of these four opponents of ratification urged amendments

The

New

of Union.

as a price

Constitution nearly failed to be ratified because

of rights.

Hampshire, the necessary ninth

it

New

states,

had no

state, ratified

bill

by a

New York were still New York by 30-27.

vote of 57-47, but the votes of Virginia and indispensable. Virginia ratified by 89-79,

North Carolina

at first rejected the Constitution,

land barely ratified, 32-30, even after Congress had the Bill of Rights to the states.

The

point

and Rhode

Is-

recommended

in part, that advocates

is,

of ratification necessarily swallowed recommendations for amend-

ments whose language they did not necessarily approve. Moreover, the language of Virginia and

New York by no means

implied that Congress should have power to favor religion so long as

no

worth

sect received preference over others. a

A

page of history

is

volume of logic here. Parsing the nonpreferential language

of the proposed amendments on establishments holds no key to understanding. In the in Virginia,

who were

first place,

Patrick

Henry and

his followers

responsible for the language of the

amend-

ment, had no intention of augmenting the powers of Congress; they opposed any federal authority over the subject of religion.

FIRST AMENDMENT: ESTABLISHMENT

which they believed

to

::

83

be exclusively within state jurisdiction.

They

surely did not favor an expansion of the tax powers of

gress,

and they did not want Congress

Con-

to enact an assessment

on

behalf of religion generally. Virginia had defeated a proposal of

1784 that authorized a state tax for the benefit of religion, allocating each person's

money

to the Christian

church of

Virginia did not intend for the United States a

even to

itself Its

power that it denied

proposal of 1788 against laws preferring one sect

above others did not represent the

found

his choice.

state's position,

in its great Statute for Religious

which

Freedom of 1786.

rehgion wholly on private, voluntary support. Virginia,

It

is

best

placed

like

New

York, had no religious test for office-holding.

The lina,

yet

New

constitutions of Pennsylvania,

Delaware, and

all five,

Jersey,

North Caro-

New York used the language of no preference,

including the three that had never supported an estab-

lishment of religion, relied on private support of religion. In other words, they believed that a constitutional provision insuring no subordination of one sect to another, or providing no preference of

one over others, banned government aid

which

failed to

ment of any

frame a

state constitution,

Rhode

Island,

never had an establish-

kind, and as a stronghold of the Baptists, most vehe-

mently opposed government aid

Rhode

to religion.

to religion, state or federal; yet

Island expressed that position in the language of no prefer-

ence of one above others. Massachusetts, by contrast, maintained

an estabhshment of religion by

its

constitution of 1780 yet en-

dorsed the principle of no preference. Several towns that opposed

an establishment of religion believed that the principle of no preference required private support of religion.

When

the Baptist

leaders of Massachusetts sought to separate church and state, they

rehed on the language of no preference, oblivious to the possibility that a subsequent generation, ignorant of history,

language to make

it

yield

nonpreferential basis.

No

might twist that

government support of one

in the

religion

on

a

United States during the

84

FIRST AMENDMENT: ESTABLISHMENT

::

generation of the Framers advocated a federal power to promote, assist,

or support religion. Religion was a topic that only the arts of

voodoo might transmogrify from exclusive

And no

the subject of a federal power.

state jurisdiction into

state that

preferring one sect over others ever regarded

its

banned laws

ban against prefer-

ence as an authority to enact laws assisting religion generally or

all

sects without preference to any.

The First

history of the drafting of the establishment clause by the

Congress

will not

make

sense to anyone

who

stand Madison's objective in introducing the

became the

Bill

of Rights.

Its

fields as religion.

"restraining the Federal

He

unamended

to prevent legislation in

Government" could be achieved by en-

against in a

Constitution.

Government

more secure manner" than

When Madison

introduced his amendments, the clauses on civil rights

should be abridged "on ac-

count of religious belief or worship, nor

in

meant

enumeration."

rehgion read that no one's

be established, nor

in the

As Madison succinctly informed Jeffer-

son, the Bill of Rights was not framed "to imply powers not to be included in the

that

declared that the goal of

suring that "the abuse of the powers of the General

may be guarded

under-

"great object," he said, was to "limit

and qualify the powers of Government" such forbidden

fails to

amendments

shall the full

shall

any national religion

and equal rights of conscience be

any manner, or on any pretext, infringed." In one respect that

constituted a vast improvement over the final version of the First

Amendment's

clause

on

religious liberty,

which merely guarantees

against a law "prohibiting the free exercise thereof"

A

literal in-

terpretation destroys the original intent, which was to preserve

rehgious liberty from diminution. But the reference to no prohibition in the free exercise clause

and

to

no abridgment

in the free

press clause gives the impression that the Framers deliberately

allowed for the infringement of religious liberty and sought only to

prevent

its

abolition.

The

point

is

that the clauses of the First

FIRST AMENDMENT: ESTABLISHMENT

Amendment

cannot be taken

They do

literally.

::

85

not

mean what

they say nor say what the Framers meant.

The did not

establishment clause as introduced by Madison surely

mean

that the

United States could pass laws on religion

short of creating a national religion— that

is,

short of a federal

By

preference of one rehgion or church over others.

Madison meant any

"national"

government. His next pro-

act of the national

posal safeguarded the rights of conscience against state acts,

the Senate defeated. In any case, a ted the

and

word "national."

select

la

which

committee omit-

not part of the First

It is

should not be construed, a

it

House

Rehnquist, as

Amendment,

if it

were

still

a

part and as if the ban against a "national religion" authorized

nonpreferential assistance to

Madison nevertheless con-

all faiths.

tinued to employ the phrase "national religion," raising the question of whether he favored nonpreferential aid to religion.

He eral

did not.

He had

assessment"

bill

subsidize religion.

led the fight in Virginia against the "gen-

of 1784, which would have imposed taxes to

Madison did not oppose

and no one

referred, too narrowly, to Christianity,

the

bill

thought that

its

bill

for or against

defects.

Madison opposed

because he opposed any kind of establishment of religion,

no matter how inclusive or exclusive. Proponents of the clared themselves to be religion

and

its

many

on the

benefits.

was not whether religion was

ments of religion were good not.

He

a

side of

God

Madison

bill

de-

because they praised

replied that the question

good thing but whether establish-

for religion,

and he decidedly thought

did not believe that religion needed government support

any more than government needed religious support. in his

it

extension to Hinduism, Islam, Judaism,

and other religions would remedy any the

that bill because

He

argued,

famous "Memorial and Remonstrance against Religious As-

sessments," that religion was not an "engine of that the establishment contemplated

by the

bill

civil society,"

differed

from

the Inquisition "only in degree," not in principle, and that any

86

::

FIRST AMENDMENT: ESTABLISHMENT

establishment violated freedom of religion, injured religion, cor-

rupted government, and threatened public

Madison,

in fact,

liberty.

had an exquisite sense of the separate

and he shared Jefferson's

dictions of religion and government, belief in a high wall of separation

between the two.

He

"perfect separation" and believed that "religion and will exist in greater purity,

without

.

for the phrase "national religion,"

.

.

juris-

spoke of a

Government

the aid of Government."

he used

it

As

to describe federal

use of public funds for the support of interfaith invocations and benedictions, congressional and military chaplains, and a law in-

corporating a church in the District of Columbia,

all

of which he

believed to be unconstitutional. His antagonism to governmentassisted religion

Madison

He

was extreme, even

as to trifling matters.

rarely used the phrase "estabHshment of religion."

almost always misquoted the First

Amendment

as if

lawed "religious establishments," a revealing usage. establishment tion,

is

a church, a

A

it

out-

religious

church school, or any religious

institu-

and such an establishment implies no government aid or

involvement with religion, as does establishment of religion. That

Madison, father of the Constitution and of the

Bill

misquoted the establishment clause as he did, even in

ments when he was president, shows that the

that he understood

government had no authority

religion or

on matters concerning

to legislate

of Rights,

docu-

official it

to

mean

on the subject of

religion.

Madison's influence notwithstanding, he did not compose the establishment clause by himself or determine his

proposed amendments emerged from

tee,

the religion clauses stated:

law,

a

"No religion

its

meaning.

House shall

select

When

commit-

be established by

nor shall the equal rights of conscience be infringed."

House

briefly

The

debated these recommendations without clarifying

their meaning.

No

one suggested that the United States had the

constitutional power

to pass laws

existed about the best

way

about religion. Disagreement

to say that

it

had no such power; saying

FIRST AMENDMENT: ESTABLISHMENT

SO in

some way would

that specifically

who

this

motion, but

it

New Hampshire

make no laws touching

shall

apparently did not accommodate those

believed that something specific had to be said

of establishments of religion. the report of the

Ames

Fisher

recom-

religion, or

The Committee of the Whole

infringing the rights of conscience."

adopted

amendment

popular clamor for an

Samuel Livermore of

"Congress

that

87

opposed establishments of religion and favored

religious liberty.

mended

satisfy the

::

When,

Committee

therefore, the

on the subject

House took up

of the Whole, a motion

made by

of Massachusetts passed, with the result that the

proposal that went to the Senate said: "Congress shall

make no law

establishing religion, or to prevent the free exercise thereof, or to

infringe the rights of conscience."

The and

Senate conducted

left a

its

debate without reporters present

record of only motions and their disposition.

On one day

the Senate defeated three motions phrased in the language of no preference.

One

said that

Congress should not establish "one re-

ligious sect or society in preference to others," another that

it

should not establish "any religious sect or society," and the third that

it

should not establish "any particular denomination of

gion in preference to another."

reli-

These narrowly phrased motions

allowed the semantic implication, however baseless, that nonpreferential federal aid to religion

seemed

who supported such motions. Such

to

a view,

be the object of those

which has no

historical

backup, ignores the fact that the Senate defeated these motions.

was seeking

a

way

to limit a nonexistent power, not a

way

It

to

enhance or even vest power. Moreover, the language of no preference often seemed appropriate to those

who

believed that religion

should rest on merely voluntary support. Elder John Leland, the great Baptist minister

ments of

who was

the only person to fight establish-

religion in Virginia, Connecticut,

strongly believed that because Christ's

and Massachusetts,

kingdom

is

not of this

world, government should have no jurisdiction over

it.

When

88

::

FIRST AMENDMENT: ESTABLISHMENT

he sought to frame an amendment terminating the estabHshment in

Massachusetts, he used the language of no preference; he

would have been astonished

such language could be

to learn that

stretched to allow government assistance to

erence to any.

became the

The

Senate,

when

sects without pref-

all

amendment

drafting the

First, consistently defeated

that

no preference motions and

adopted the House motion. Six days

later,

stituted for the

however, the Senate changed

its

mind and sub-

House version one that read: "Congress

shall

make

mode

of worship, or pro-

hibiting the free exercise of religion." This

was overly narrow

no law establishing

articles

of faith or a

language, because South Carolina was the only state that had an

establishment of religion prescribing articles of faith; in five other states

whose laws

as of 1789 authorized establishments of religion,

public taxation for religion, rather than articles of faith, consti-

tuted the principal feature of an establishment. olina provision of 1778

tion of 1790 omitted

and guaranteed

all

was scrapped when

The South Car-

new

a

state constitu-

reference to an establishment of religion

free exercise for everyone.

Despite the narrow language of the Senate, the complexity of the matter

demands recognition of the

fact that a Baptist

memorial

of 1774 had used similar language, opposing prescribed articles of

forms of worship,

faith or

in order to achieve, in the

minds of its

Baptist sponsors, endorsement of the idea that government and religion should be kept separated.

As

most Baptist champion of religious

liberty in Massachusetts, Isaac

Backus, supported

in his

of the Constitution in the belief

United States had no power

that the

First

ratification

a matter of fact, the fore-

at all in religious matters,

and

three-volume History of New England, he misquoted the

Amendment by

make no

stating, approvingly, that

law, establishing articles

of faith, or a

prohibiting the free exercise of religion." Senate's language as sufficient to

shall

mode of worship,

That

condemn

"Congress

is,

or

he regarded the

the estabhshments of

FIRST AMENDMENT: ESTABLISHMENT

89

and Connecticut. As

Mon-

has said in his analysis of the original

mean-

religion then existing in Massachusetts

signor Thomas Curry

::

ing of the establishment clause, "Eighteenth-century American history offers abundant examples of writers using the concept of

on

preference, when, in fact, they were referring to a ban

ernment

all

gov-

assistance to religion."

The House adamantly refused

to accept the Senate's version of

the religion clauses.

Differences on several of the proposed

amendments required

a joint

gotiate a

compromise.

committee of the two houses to ne-

A strong committee of three members from

each house, including four

men who had been

influential

Framers

(Madison, Roger Sherman, Oliver Ellsworth, and William Paterson), drafted the language that

ment. Both houses adopted

it

we know

as the First

and recommended

its

Amend-

ratification

by

the states.

Several facts clearly emerge from the legislative history of the

The United

establishment clause. the First

Amendment

held that power.

States had

no authority before

to enact laws about religion; only the states

The amendment

did not increase the legislative

power of Congress. Congress seriously considered

alternative

readings of the establishment clause and rejected every phrasing that logic could construe as

more narrow than

The Livermore-New Hampshire alternative, tion of power, failed because

Another

fact

may be

it

the final version.

the broadest restric-

did not mention an establishment.

added: the meaning of an "establishment of

religion" remains uncertain after an analysis of the legislative history.

Whatever such an establishment was, the nation's

faced an absolute ban concerning

The

states

clarify the

ratified

legislature

it.

the Bill of Rights but

meaning of an establishment of

left

religion.

nothing to

We

have no

debates, newspaper coverage, tracts, or personal correspondence that provide clues, except in Virginia, terly misleading.

The

state senate,

where the evidence

is

ut-

narrowly dominated by Anti-

90

Federalists

FIRST AMENDMENT: ESTABLISHMENT

::

who

took orders from Patrick Henry, voted 8-7 to

postpone a decision on the recommended amendments. Virginia's Anti-FederaHsts understood that

of the supreme

law,

if

the Bill of Rights

no chance would remain

for a

amendments

crip-

commerce powers. The

eight

tutional convention or for the passage of the

pling the national judicial, tax, and state senators,

who had

became part

second consti-

consistently voted in support of taxes

for religion, issued a patently false public statement

contend-

ing that the proposed religion clauses neither protected freedom

of religion from violation nor prevented Congress from levying taxes for the support of religion; they even alleged that benefit

one particular

sect over others.

with the language of the

amendment

it

would

Their statement conflicted

at issue. Finally, the Virginia

senate, unable any longer to explain

its

opposition to a Bill of

Rights, ratified.

What then was the understanding in

1789 of the meaning of the

term an establishment of religion? Doubtless, any union of state and church comparable

to the familiar

European establishments of

rehgion came within the prohibition of the First Amendment.

Such establishments of religion had weak counterparts

in the tide-

water towns of the southern colonies before the American Revolution.

Where such an

services

establishment existed, attendance upon

was supposed

to be compulsory, unless the

its

government

indulged the open existence of dissenters. But only the

official

creed of the estabhshed church could be publicly taught, and only its

clergy had civil sanction to perform marriage services and other

sacraments or could allow them to be performed. Only clergymen of the established religion received stipends paid from religious taxes imposed

on everyone, regardless of

faith,

and only the

churches of the establishment were built and maintained by those taxes. Dissenters,

various

even

if tolerated,

civil disabilities,

suffered from the imposition of

such as exclusion from universities and

disqualification for office,

whether

civil,

military, or religious.

FIRST AMENDMENT: ESTABLISHMENT

::

91

Their orphanages, schools, churches, and other rehgious tions

had no

institu-

legal capacity to bring suits, hold or transmit property,

or receive or bequeath trust funds.

According

William Tennent,

to

South Carolina,

in

a Presbyterian minister

of

which the Church of England (Episcopal) had

been established, Protestant dissenters were merely tolerated

as if

they stood "on the same footing with the Jews," unmolested but

Rhode

unequal. Except in

Island, second-class citizenship also

New En-

characterized non-Congregational Protestants in the

gland colonies, where for tional

all

practical purposes the

Church enjoyed the preferences of the

By banning

Congrega-

established church.

laws respecting an establishment of rehgion, the First

Amendment meant,

indisputably, that Congress could

make no

law concerning the sort of establishment that characterized

Roman

theran Sweden, Anglican England,

Lu-

Catholic Spain, or

Presbyterian Scotland.

The

question

is

whether an establishment of religion signified

anything other than a church with preferred status or ileges.

ment of religion was barely known of the Revolution. far

in

America,

if at all,

by the time

The term establishment ofreligion came to have a

broader meaning in America than

with,

official priv-

In fact, Europe's post-Reformation model of an establish-

it

had

in Europe.

American establishments had never been

as

begin

powerful or as

discriminatory as their European counterparts. Tennent felt

To

may have

merely tolerated in Anglican Charleston, but further west in

Carolina, Anglicans were few in number, their clergy was almost

nonexistent,

all

churches were equal in

fact,

and discriminatory

By

the time of the Revolution, the

interior of the southern colonies

had been populated with Scotch-

laws had no real operation.

Irish Presbyterians

and various German

sects

A bewildering multiplicity of religions existed

and denominations. in the

middle colo-

nies,

none of which had ever endured an establishment of rehgion.

And

in

New

England, outside of Rhode Island where state and

92

::

FIRST AMENDMENT: ESTABLISHMENT

church had always been separated, Congregationalists reaped the benefits of an establishment not because their church

was by law

established but because a nondescript establishment of Protestant

ministers on a local town basis operated in favor of the overwhelm-

numerous Congregationalists. Nowhere

ingly

in

New

England

was the Congregational Church established by name.

The American unknown

experience with establishments of religion was

to eighteenth-century Europe.

time of the framing of the that

Bill

As

a matter of fact, at the

of Rights, every one of the six states

maintained an establishment of religion in the United

still

States had multiple or ^^w^r^/ establishments of reHgion.

lishment of religion had

come

to

mean government

An

estab-

support, pri-

marily financial, for religion generally, without legal preference to

any church. For

all

practical purposes,

and surely

for all legal

purposes, the states that authorized establishments in 1789 established

all

New the

first

the churches within their borders.

York's colonial history of church-state relations provided

example of an establishment of religion radically

from the European type, an establishment of religion

in

different

general—

or at least of Protestantism in general— and without preference to

one church over others. After the English conquered lands in 1664, the "Duke's Laws," later

James

II,

named

fixed the governance of New

sions for the regulation of churches in

the Protestant religion could sense, of course, this

for the

New Nether-

duke of York,

York and made provi-

Long Island. Any church of

become an

established church. In a

was an exclusive establishment of one

reli-

gion. Protestantism; but the system involved a multiple estab-

lishment of several Protestant churches, in sharp contrast to Euro-

pean precedents, which provided for the establishment of one

church

only.

Under licly to

the "Duke's Laws," every township was obliged pub-

support some Protestant church and a minister.

nomination of the church did not matter. Costs were

to

The

de-

be met by a

FIRST AMENDMENT: ESTABLISHMENT

public tax: "Every inhabitant shall contribute to

Church and

State."

A

local

was an establishment of religion official tial

On

produc-

some Protestant bishop or minis-

state.

In other words, this

which there was

in

union between government and religion on

basis

charges both in

minister selected by a town was inducted into his pasto-

by the governor representing the

rate

all

option system prevailed.

ing evidence of ordination "from ter," the

93

::

a formal, legal, a

nonpreferen-

and without the establishment of any individual church.

In 1683 the

New York

that adopted the

and extended

it

Assembly enacted

Long

to the

a "Charter of Liberties"

Island system of multiple establishments

whole colony.

Following the Glorious Revolution of 1688, the English gov-

ernment instructed

its

governors of

New

York to implement an

estabhshment of Anglicanism there. In 1693 a recalcitrant ture,

composed almost

entirely of

for Settling a Ministry

&

four southern counties.

The

England.

The

non- Anglicans, passed "An Act

raising a

cient Protestant Minister"

legisla-

Maintenance

for

them"

in the

law called only for "a good and

suffi-

and nowhere mentioned the Church of

royal governors

and most Anglicans asserted that

the statute had established their church; but non-Anglican

New

Yorkers disagreed. Thus, in 1695 the legislature declared that the 1693 act allowed the selection of a "Dissenting Protestant Minister," that

permit

is,

this.

can, wrote:

they had

a

non-Anglican one, although the governor refused to

A

few years

later,

"The People were

made an

Lewis Morris, a prominent Angligenerally dissenters [and] fancied

effectual provision for Ministers of their

own

persuasion by this Act." In 1703 and 1704 Anglicans, assisted by the governor of the colony, gained possession of the church

of Jamaica,

Long

Island.

and parsonage

in the

town

These buildings had been erected

at

public expense, and the town had chosen a Presbyterian minister.

The

Anglicans' action set off a long and bitter controversy.

The

Presbyterians refused to pay the salary of the Anglican minister

94

::

because, as the

FIRST AMENDMENT: ESTABLISHMENT

Church of England townspeople reported, "they

[the Presbyterians] stick not to call themselves the Established

Church." In 17 lo the Presbyterians managed

to seize

and

retain

the parsonage, and in 1727 they brought suit for the recovery of the church, which the provincial court, in an unreported decision,

awarded them. For much of the remainder of the colonial period, Anglicans managed to pry a minister's salary out of the reluctant inhabitants, but not without constant complaints

and

a further

attempt, defeated by the courts in 1768, to withhold the minister's salary.

Elsewhere on Long Island, the inhabitants supported

the non-Anglican

town ministers chosen by the

haven certainly supported such

a minister,

Brook-

majority.

and given the scarcity

of Anglicans and Anglican ministers in the colony, most towns

had

to reach their

own accommodations with

the ministers of

their choice.

In the 1750S the organization of King's College (later bia)

provoked

Colum-

a controversy over the nature of New York's estab-

lishment. Anglicans

demanded

that they control the

new

school

because they enjoyed "a preference by the Constitution of the province."

and

Non- Anglicans

a future

rejected both claims.

A

young

lawyer,

framer of the Federal Constitution, William Living-

ston, denied that the Anglican in the colony.

He

Church was

exclusively established

insisted that the establishment "restricted

particular Protestant

Denomination whatsoever" and

no

that the

people were to choose which ministers to establish. Here again

is

evidence that the concept of a multiple establishment of rehgion

was understood by inhabitants of colonial

New

New

York. Although

York Anglicans claimed an exclusive establishment of

their

church, a large number of the colony's population understood the establishment set up by the act of 1693,

r^^t

simply as a state pref-

erence for one religion or sect over others, but as allowing public

support for

many churches

to

Massachusetts, the major

be determined by popular vote.

New

England colon>^ proclaimed no

FIRST AMENDMENT: ESTABLISHMENT

establishment of the Congregational Church by

That year the on

a

town

::

95

name

after 1692.

legislature provided for an establishment of religion

basis

by simply requiring every town

and orthodox" minister,

"able, learned

to

an

be chosen by the voters

of the town and supported by a tax levied on several denominations could benefit

to maintain

all

taxpayers.

By law

from the establishment. Be-

cause Congregationalists constituted the overwhelming majority in nearly every

town, they reaped the benefits of the establishment

of religion. Except in Boston, where

all

ported voluntarily, the law in effect

Church the

privileged one,

congregations were sup-

made

the Congregational

which unquestionably was the purpose

of the statute, and non-Congregationalists, chiefly Episcopalians, Baptists,

and Quakers, were

for a long time taxed for the

support

of Congregationalism. However, in the few towns dominated by a

non-Congregational denomination, as Baptists did

in

Swansea,

the official established church represented that denomination.

The growing number of dissenters, tionalists to

make

however, forced Congrega-

concessions. In 1727 Episcopalians

won

the

statutory right of having their religious taxes applied to the sup-

own

port of their

churches. Connecticut passed a similar act on

behalf of the Episcopal churches in the same year. In 1728 sachusetts

ment of

exempted Quakers and Baptists from taxes

Mas-

for the pay-

ministerial salaries. Thereafter, each denomination

respectively

exempted from sharing the taxes

town churches. Tax exemption

statutes

for building

was

new

on behalf of Quakers and

Baptists were periodically renewed, so that

members of these de-

nominations were not supposed to pay religious taxes for the benefit

of either Congregational churches or their own.

Because of complicated legal illegal action,

technicalities, as well as outright

frequent abuses occurred under the system of tax

exemption, which also prevailed in Connecticut. In Massachusetts

and Connecticut many Quakers and Baptists were unconscionably forced to pay for the support or Congregational churches, and

96

FIRST AMENDMENT: ESTABLISHMENT

::

even Episcopalians

who

denomination to attend

lived too far

its

from

a

church of

their

own

services were taxed for support of Con-

gregational ones. Abuses of both the letter and the spirit of the

law did not alter the basic fact that after 1728 the estabhshments of religion in both colonies meant government support of two churches, Congregational and Episcopal, without specified prefer-

ence to

either.

Prominent Congregational spokesmen understood that they did not constitute an exclusive establishment. Cotton Mather

wrote that "the Person elected by the Majority of the Inhabitants

.

.

is

.

.

.

the King's Minister," and, he continued, the

.

minister elected by each town was the

was

chuse a

will

tor

entitled to

..

.

he

is

its

taxes.

official

minister and as such

Benjamin Colman declared: "If any

Gentleman of the Church of England their Minister

by the Laws of our Province

any Congregational Minister." In 1763 Jonathan

Town

for their Pasas

much as

Mayhew

ex-

plained that Massachusetts had established not a single church but rather "protestant churches of various denominations."

derstood that "an hundred churches, tions

.

.

.

might

all

all

He

un-

of diiferent denomina-

be established in the same

.

.

.

colony, as well as

one, two, or three." Thus, three of the most prominent

New En-

gland ministers of the eighteenth century specified that in

Mas-

sachusetts an establishment of religion was something other than

an exclusive preference for one church. Massachusetts, and Connecticut to a lesser extent, maintained not an exclusive but a dual

estabhshment of rehgion.

New Hampshire's law allowed a multiple establishment. Down to the

middle of the eighteenth century, the town system of estab-

lishment operated to benefit the Congregational Church exclusively.

But

New Hampshire did not systematically require the pay-

ment of rates by

dissenters nor concern itself with the support of

their ministers. Quakers, Episcopalians, Presbyterians, tists

were exempt from supporting the

and Bap-

local established

church,

FIRST AMENDMENT: ESTABLISHMENT

97

::

which was usually Congregational. In some towns, however, Episcopalians and Presbyterians were authorized to establish parishes

and

to use

town authority to collect taxes

for their churches.

eve of the Revolution, the pattern of establishment had wilderingly diverse.

Some towns maintained

By the

become be-

dual establishments,

others multiple establishments, with free exercise for dissenters. In the wake of the Revolution the exclusive establishments of

from the colonial period collapsed. States that

religion inherited

had never had establishments renewed except for tion.

New

Rhode

Island,

their barriers against

which did not adopt

York, denying that

it

a

new

them,

state constitu-

ever had a preferential establish-

ment, placed religion on private, voluntary support, as did Jersey, Delaware,

and Pennsylvania. Nowhere

1776 did an establishment of religion restrict

church or

to a

America

in

New after

itself to a state

system of public support of one sect alone; instead,

an establishment of religion meant public support of several or churches, with preference to none.

all

The six states that continued to

provide for public support of religion were careful to

make conces-

sions that extended their establishments to embrace

many

Three of these adopted Rights

its

six states

commanded

parishes, precincts, to

make

were in

New England.

constitution in 1780. Article III of

its

sects.

Massachusetts Declaration of

the legislature to authorize the "several towns,

and other bodies

suitable provision, at their

politic,

or religious societies,

own expense, for the institution

of the public worship of God, and for the support and mainte-

nance of public Protestant teachers of ity."

The same

article

empowered

attendance compulsory, and

it

piety, religion,

the legislature to

and moral-

make church

authorized the towns and parishes

to elect their ministers. In addition, the article stated:

moneys paid by the all

"And

all

subject to the support of public worship, and

the public teachers aforesaid, shall, if he require

it,

be uni-

formly applied to the support of the public teacher or teachers of his

own

religious sect or denomination, provided there be any

on

98

::

FIRST AMENDMENT: ESTABLISHMENT

whose instructions he

attends; otherwise

it

may be

paid towards

the support of the teacher or teachers of the parish or precinct in

which the

said

moneys

are raised."

"no subordination of any one shall ever

A

final clause

provided that

denomination to the other

sect or

be established law." That clause against preference

proves that constitutionally speaking the several churches of the establishment were on a nonpreferential basis. Clearly an estab-

lishment of religion in Massachusetts meant government support

of religion and of several different churches in an equitable manner. Congregationalists

continued to be the chief beneficiaries of

the establishment, because they were the most

numerous and

re-

sorted to various tricks to fleece non-Congregationalists out of their share of religious taxes.

But the

fact

remains that Baptist,

Episcopal, Methodist, Unitarian, and even Universalist churches

were publicly supported under the establishment

Mas-

after 1780.

sachusetts did not separate church and state until 1833.

In

New Hampshire the state constitution of 1784 also created a

statewide multiple establishment with the guarantee that no sect

or denomination should be subordinated to another. sachusetts,

Hshment

Rhode Its

all

in

New

Hampshire ended

The

in

Mas-

multiple estab-

in 18 19. Connecticut, like

Island, did not adopt a constitution during the Revolution.

establishment of religion was regulated by the Act of Tolera-

tion of 1784,

framed. ter to

to

Protestant churches benefited.

As

which was

in force

when

the Bill of Rights was

The statute empowered each town to choose which minis-

support and guaranteed that no sect was to be subordinated

any other. Those

who did

not belong to the church representing

the majority were exempt from paying toward as they could prove

membership

its

in a different

support as long

church and that

they contributed to the support of their church. Baptists protested against the system but participated in

it

and benefited from

it.

The

establishment lasted until 1818. In Maryland, Georgia, and South Carolina, "an establishment

of religion" meant

much what

it

did in the

New

England

states

FIRST AMENDMENT: ESTABLISHMENT

that maintained multiple establishments. In

::

99

Maryland, where the

Church of England had been exclusively established, the constitution of 1776 provided that

no person could be compelled "to

maintain any particular place of worship, or any particular ministry,"

thus disestablishing the Episcopal Church. But the same

new estabhshment of religion: "Yet

constitution provided for a

the

Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian rehgion; leaving to each individual the

power of appointing the payment over of the money, collected from him,

to the support of

any particular place of worship or

Mary-

minister." "Christian" rather than "Protestant" was used in

land because of the presence of a large Cathohc population, thus

ensuring nonpreferential support of state.

all

churches existing in the

In 1785 the Maryland legislature sought to exercise

its

dis-

cretionary power to institute nonpreferential support, but "a huge

uproar arose against the measure," and

it

was denounced

as a

new

establishment and decisively beaten. In 18 10 the power to enact a multiple establishment was taken from the legislature by a constitutional

amendment providing

any other tax

.

.

.

for the

and general tax or

that "an equal

support of any rehgion" was not lawful.

Georgia's constitution of 1777 tersely effected the disestablish-

ment of the Church of England while permitting a multiple

estab-

lishment of all churches without exception: "All persons whatever shall

have the free exercise of their religion;

.

.

.

and

shall not,

unless by consent, support any teacher or teachers except those of their

own

profession." "This, of course,

taxation for the support of one's

own

the

left

way open

religion," says

for

Reba C.

Strickland, a historian of eighteenth-century church-state rela-

"and such

tions in Georgia,

similar bills

had

failed in

law, all Christian sects

was passed

in 1785," although

1782 and 1784. According to the 1785

and denominations were

port in proportion to the respective church

a law

members, but

sure went into operation.

to receive tax sup-

amount of property owned by

What

it is

is

their

not clear whether this mea-

clear

is

that an estabhshment of

100

::

FIRST AMENDMENT: ESTABLISHMENT

meant government

religion

erence to none.

The

framing of the

Bill

tax support to

all

churches, with pref-

state constitution in effect at the

of Rights was adopted in 1789.

time of the Its

relevant

provision declared that no persons should be obliged "to contribute to the support of any religious profession but their own,"

thereby permitting a multiple establishment as before. In the state constitution adopted in 1798, however, Georgia separated church

and

state

by

a guarantee against

any religious taxes and by making

the support of religion purely voluntary.

South CaroHna's constitution of 1778 was the sixth stitution providing for a multiple

XXVIII

state

con-

estabhshment of religion. Article

elaborately spelled out the details for the maintenance of

the "Christian Protestant religion" as "the established religion of this State."

Adult males forming themselves into any rehgious so-

ciety of a Protestant

denomination were declared

to be "a

church

of the established religion of this State," on condition of subscribing to a behef in God, worshipping tianity as "the true religion,"

him

publicly, regarding Chris-

and accepting the divine inspiration

of Scripture. Pursuant to this law. Baptists, Independents, Methodists,

and Anglicans

state also specifically

obHged

to

qualified as "Established" churches.

guaranteed that "no person

shall,

by

The

law,

be

pay towards the maintenance and support of a religious

worship that he does not freely

join in, or has not voluntarily en-

gaged to support." In 1790 South Carolina adopted a new constitution with no provisions whatever for public support of religion.

The

constitutions of North Carolina and Virginia did not pro-

vide for an establishment of religion of any kind. In 1776 North

Carolina banned state support for religion and disestablished the

Church of England. By

contrast, Virginia's constitution of 1776

was noncommittal on the subject of an establishment. At the close of 1776, the Church of England was for disestablished in Virginia.

But the

all

practical purposes

statute of 1776 that initiated the

end of the exclusive establishment expressly reserved

for future

decisions the question of whether religion ought to be placed

on

a

FIRST AMENDMENT: ESTABLISHMENT

private, voluntary basis or be

by

a

new "general"

when

1785,

::

101

supported on a nonpreferential basis

The

assessment.

indecision continued until

public opinion turned against a general assessment.

Madison's "Memorial and Remonstrance" became the political opposition to the assessment

opposition to

it

from evangelicals was

legislature let the bill die unnoticed

20 enacted instead Jefferson's

but the religious

decisive, resulting in the

overwhelming majority against

election of a legislature with an

The new

bill,

bill for

and by

religious

bill in

Virginia been enacted,

of 67-

Had

to seven. Indeed, there

ments 79 1,

had

were seven

as a result of the

would simply have increased

states

six

with multiple estabhsh-

admission of Vermont to the Union in

whose vote was counted

ratified the Bill

its

the assess-

number of states maintaining multiple establishments from

the

1

it

a vote

it.

freedom with

provision against government support of religion.

ment

a catalyst for

to

determine whether enough

states

of Rights.

Clearly the provisions of these seven states

show

that to under-

stand the American meaning of "an establishment of religion" one

cannot adopt a definition based on European experience. In every

European precedent of an establishment, the was that of a

single church.

common by

all

of

Many churches,

them— that

is,

religion established

or the religion held in

Christianity or Protestantism-

were never simultaneously established by any European nation. Establishments in America, by contrast, in both the colonial and the early state periods, were not limited in nature or in state

support of one church.

An

meaning

to

estabhshment of rehgion meant

government aid and sponsorship of religion, principally by impartial

tax support of the institutions of religion, the churches.

In no state or colony, of course, was there ever an establishment

of religion that included every religion without exception. In three of the seven multiple establishments existing in 1791, the establishment included only Protestant churches, and in the other four, all

Christian churches. In effect

all

Christian churches of each of

the seven states were establishments of religion. Christianity or

102

::

FIRST AMENDMENT: ESTABLISHMENT

may

Protestantism

signify

one religion

in contrast with

Judaism,

Buddhism, Hinduism, or Islam. But no European establishment of religion included all

all

the churches within national boundaries;

European establishments of

church— that

is,

religion denoted a single state

the church of one denomination.

the First Congress

came from a

state that

No member

of

supported one church or

an exclusive establishment of religion; no such example could have

been found

America of 1789. Their experience

in the

legislators in

1789 that an establishment of religion meant not just

state preference for

for

one religion but

many or all. At the time of its

ment

told the

also nonpreferential

ratification in

clause prevented the United States

179

1

support

the estabhsh-

from doing what half the

fourteen states then permitted— giving government aid to religion

on

a nonpreferential basis.

From

a broader standpoint, the estab-

lishment clause was also meant to depoHticize religion, thereby defusing the potentially explosive condition of a religiously het-

erogeneous

society.

By

separating government and religion the

establishment clause enables such a society to maintain some ity

among

believers

and unbelievers

as well as

among

lievers.

Above

religion

from government, and government from

all,

civil-

diverse be-

the establishment clause functions to protect religion.

CHAPTER FIVE

The First Amendment: The Free Press Clause

A

LMOST

/ VL *\ /

A

W

tion

two months

had begun

after the Constitutional

its

Conven-

deliberations, Charles Pinckney

of South Carolina recommended "sundry propositions" to supplement a partial

list

of rights that had

been prepared by the Committee of Detail. One of Pinckney's propositions urged that the hberty of the press should be "inviolably preserved."

He

offered

"liberty of the press"

was

no explanation,

The Convention adopted

Pinckney's proposal for a ban on

religious tests as a qualification for office

writ of habeas corpus, but

or his other propositions.

it

and

his guarantee of the

did nothing about liberty of the press

On

September

12, 1787,

when

vention was drawing to a close, a motion to include a

was defeated.

A couple of days later,

proposal for a free press clause. sary.

meaning of

as if the

self-evident.

The power of Congress

bill

the con-

of rights

Pinckney renewed his

Sherman

replied, "It

is

earlier

unneces-

does not extend to the Press." Pinck-

ney's motion lost, and three days later the Convention adjourned.

The Convention had made

a massive mistake

by having pro-

posed a Constitution that protected a few rights but omitted most. Moreover, Roger

Sherman

to the contrary, the Constitution

103

104

empowered upon

::

FIRST AMENDMENT: FREE PRESS

make laws

the United States to

particular liberties.

The power

ominous necessary and proper stroy a free press

to tax,

implemented by the

and might be enforced by general warrants en-

homes and businesses

who were

either fools or

abuses of the treaty power.

They

for evi-

Some opponents

of

demagogues, wildly hinted

at

dence of criminal evasion of the revenue

would make

might infringe

clause, could even be used to de-

abling the government to ransack

ratification,

that

laws.

predicted that the United States

a deal with the pope, establish a national church,

revive the Inquisition,

and torture suspects.

Equally absurd were arguments by ratificationists as sophisticated as James Wilson, Alexander Hamilton, James Madison, and

Oliver Ellsworth to the effect that a

bill

of rights would be un-

American, because government here derived from the people who retained everything not surrendered, and would be "dangerous,"

because any right omitted was

dom

lost.

Throughout the

of the press became a topic for grand declamation, but no-

where was the

insistent

demand

for its constitutional protection

accompanied by a reasoned consideration of what far

it

tion.

nation, free-

it

meant,

how

extended, and whether any circumstances justified

its

limita-

The

no

defini-

rhetorical effusions of Anti-Federalists yield

tion of any freedoms, later protected under the First

and the newspapers, pamphlets, and

Amendment,

state ratification

conventions

offer as little illumination.

The remarks of the members of the who

either

decamped or refused

fourteen, Elbridge Gerry,

Constitutional Convention

to sign are representative.

George Mason, Robert

Of the

Yates, John

Lan-

Edmund Randolph

published explana-

tions of their rejection of the Constitution.

None showed any

sing,

Luther Martin, and

serious concern for the omission of a

bill

of rights or the guarantee

of a free press. Not one of them endorsed the principles of the

Zenger case— namely, that truth should be libel

and that the

jury,

a

defense to a charge of

not the court, should judge the criminality

FIRST AMENDMENT: FREE PRESS

of the Statements

made by

::

105

Not one person who

the defendant.

refused or failed to sign the Constitution argued the value of a

broad scope for

political discussion or rejected restrictions

press that existed in the

common

example, regretted not only the absence of a the absence of benefits of the

on the

law or state laws. Mason, for bill

of rights but also

common law, which allowed prosecu-

tions for harsh criticism of the government,

its

poHcies, or

its

Yates, the Hkely author of the "Brutus" essays, a major

officials.

Anti-Federalist series, failed to mention liberty of the press.

The

ratification controversy in Pennsylvania,

where the Anti-

Federalist press published voluminously against ratification, reveals

how

stunted was the thinking about a free press. Opponents

of the Constitution frequently urged a guarantee that liberty of the press "ought never to be restrained," which echoed verbatim the

language of the

state's constitution.

Those words should not be

taken as a guarantee of a broad freedom, because even Sir William Blackstone, the oracle of the

common

law,

had declared that the

absence of "previous restraints upon publications" ensured that "neither

is

enquiry."

any restraint hereby

He added

laid

upon freedom of thought

or

that publicizing "bad sentiments destructive

of the needs of society

is

the crime which society corrects." In

Pennsylvania, too, the language of no restraints meant no prior re-

one could publish without

straints:

criminally convicted for aspersions

fear of censorship but

might be

on the government. The 1782

case of Eleazar Oswald, the rambunctious Philadelphia printer,

showed

that the state

supreme court believed

tutional guarantee of a free press for seditious libel,

and

in 1788,

month

of

in prison plus a fine,

holding that Blackstone's views controlled the meaning of

the free press clause. In 1797 press

Thomas McKean

Chief Justice

Pennsylvania sentenced Oswald to a after

that the state consti-

was compatible with prosecution

is,

McKean

ruled:

"The

liberty of the

indeed, essential to the nature of a free State, but this

consists in laying

no previous

restraints

upon public

actions,

and

106

::

FIRST AMENDMENT: FREE PRESS

not in freedom from censure for criminal matter,

when

Every freeman has an undoubted right

what sentiments

he pleases before the public in Pennsylvania,

.

.

published.

but take the consequences." Thus,

whose constitutional provisions of 1776 and 1790

were the most libertarian

and

.

to lay

press, the crux of the

in the nation as to

freedom of speech

common law on criminal libels remained

in force.

Anti-Federalists reiterated that the United States would have the power to legislate against libels of the government or prosecute

such

libels

under

law even

if

Congress had not enacted

a

they merely proposed a free press guarantee, even

statute. Yet

though the

common

state's free press clause

accommodated Blackstone's

views. Similarly, the Anti-Federalists urged a free press clause to

prevent a tax on the press, even though in Massachusetts a free press clause had not prevented enactment of a stamp tax

papers or prosecutions for seditious ratifying convention,

no power

At the Pennsylvania

Wilson insisted that although Congress had

to pass laws against the press, liberty of the press

"no antecedent if

libel.

on news-

restraint

on

it,"

that "every author

is

meant

responsible"

he attacked the government, and that the proper proceedings

would be by

a criminal prosecution in a federal court.

No

one

argued that a free press clause would thwart such prosecution or supersede the

common

law of criminal

libels,

and no one urged

that truth should be a defense to a charge of libel or that the jury

should have the power to return a general verdict in tions. Nevertheless, the Anti-Federalist

libel

prosecu-

members of the Pennsyl-

vania convention urged the addition of a free press clause in lan-

guage that improved on the

state's version.

The

Pennsylvania

minority substituted "shall" for the namby-pamby "ought" that

had been conventional

("shall not be restrained

by any law of the

United States") and used phrasing broad enough eral prosecution,

statutory law.

because "any law" applied to

to preclude fed-

common

as well as

FIRST AMENDMENT: FREE PRESS

::

107

Richard Henry Lee of Virginia and Melancthon Smith of New

York shared the belief that

would pre-

a federal free press clause

vent Congress from taxing the press. Lee, the likely author of an Anti-Federalist tract that was probably the most widely read in the country, also shared with Britain provided a press. Patrick

matter.

model

Smith the remarkable view

that Great

for the legal protection of freedom of the

Henry had an even more complaisant view of

Although he raged

the

frenetically against all sorts of imagined

oppressions that would result from ratification, he told the Virginia ratifying convention that as to liberty of the press,

say nothing, because

"palladium of our

members of Congress would not

liberties."

That he was

he need

infringe the

sarcastic does not alter

the fact that he contributed nothing to an understanding of free-

dom of the press. On the ratificationist

side,

their understanding of the

almost no Framers had yet revealed

meaning of freedom of the

Ben

press.

Franklin was one. In 1758 he managed Pennsylvania's case before the Privy Council

when two men appealed

provincial assembly for "highly reflecting"

the publication of seditious

libels.

their conviction

by the

on the government by

In 1789, in an essay

on the

licentiousness of the press, Franklin urged the use of the cudgels to break the

heads of those

who used

the press for

libels.

He

did

not then endorse prosecutions for criminal publications, but he

never in his long, active

life

criticized the law

William Livingston, a signer from

governing the press.

New Jersey,

had been the au-

thor of a youthful essay in which he wrote that anyone lished "any for "high

Thing

injurious to his

who pub-

Country" should be convicted

Treason against the State." In 1784, however, he

crit-

icized the doctrine that truth magnified a libel, but not the doctrine that

words can criminally attack

Sherman framed

a bill

a free

government. Roger

of rights in 1789, with a provision that

safeguarded the right to express one's sentiments "with decency," a conventional formulation of the time that ruled out libels—

108

::

FIRST AMENDMENT: FREE PRESS

personal, obscene, blasphemous, or seditious. Similarly, Sher-

man's proposal that the government should have no power to

was straight out of Blackstone and meant no

"restrain the Press"

prior censorship.

James Wilson supported truth

as a defense but

otherwise endorsed Blackstone's views on the press.

Hugh Wilwho trou-

liamson of North Carolina was the only other Framer

bled to indicate his understanding of freedom of the press when, in 1788, he invoked England as a son's friend,

James

masterminded

become

who had

for that freedom.

William-

not been at the Convention,

ratification strategy in their state. Iredell,

member

a

Iredell,

model

soon to

of the original Supreme Court, agreed with

Williamson. Before the ratification of the

Bill

of Rights, Madison

never indicated his dissent from prevailing views. His libertarian interpretations of freedom of the press

1794 and then,

fully,

came

later, at

the earliest in

during the Sedition Act controversy.

Jefferson, also an advocate of ratification but not a Framer,

thought about freedom of the press more than most of his contemporaries.

His opinions on the meaning and scope of the freedom of

the press reveal the limitations of his time.

He once remarked

that

he did not care whether his neighbor said that there are twenty

gods or no God, because leg."

But

"it

neither picks

my pocket nor breaks my

in drafting a constitution for Virginia in

1776 he consid-

ered proposing that freedom of religion "shall not be held to justify

any seditious preaching or conversation against the authority

of the

civil

statute

government."

And

in the

same year he helped frame

a

on treasonous crimes, punishing anyone who "by any

word" or deed defended the

British cause. Apparently, political

opinions could break his leg or pick his pocket. What, then, did Jefferson raries,

mean by freedom of

the press.? He, like his contempo-

supported an unrestricted public discussion of

issues,

but

"unrestricted" meant merely the absence of censorship in advance

of publication; although no one needed a government license to express themselves, everyone was accountable under the criminal

law for abuse of the right to speak or publish

freely.

FIRST AMENDMENT: FREE PRESS

::

109

Jefferson never protested against the substantive law of seditious libel, not even during the later Sedition Act controversy.

He

directed his protests at that time against national as opposed to state prosecution for verbal crimes.

He accepted

without question

the dominant view of his generation that government could be criminally assaulted merely by the expression of critical opinions that allegedly tended to subvert

it

by lowering

it

in the public's

esteem. His consistent recognition of the concept of verbal poHtical

crimes throughout the Revolution continued in the period of

peace that followed. Jefferson's draft constitution for Virginia in 1783 proposed

that the press "shall be subject to

no other

restraint than liableness

and published."

He

state's free press clause.

His

to legal prosecution for false facts printed

wrote this as an amendment to the

amendment

explicitly

opened the door

amendment

Yet he framed that

to criminal prosecutions.

after considering the contrary

opinion of his neighbors and constituents,

who

favored exempt-

ing the press from prosecution for any signed opinion or news. Jefferson singled out for prosecution "false facts," or "falsehoods," as

he

eral

phrased his provision, in the face of a more

endorsed prosecution again in 1788 when urging Madison

support amendments to the

a guarantee for eral

lib-

recommendation.

He to

initially

new federal Constitution,

freedom of the

government

will

press.

"A

including

declaration that the fed-

never restrain the presses from printing any-

thing they please, will not take away the liability of the printers for false facts printed.

The

declaration that religious faith shall be

unpunished," he offered as added assurance, "does not give impunity to criminal acts dictated by religious error." Publication

of

false facts

on

political

matters seemed the equivalent of an

overt crime resulting from a misguided religious conscience. like

Un-

Blackstone, however, Jefferson implicitly opposed the prose-

cution of accurate information. Jefferson received a copy of Madison's proposed

amendments

110

::

FIRST AMENDMENT: FREE PRESS

to the Constitution in 1789.

He was

disappointed not to see the

adoption of his recommendation on the press.

He Hked

the pro-

posal on the press, he said, but would be pleased to see the follow-

ing revision: "the people shall not be deprived or abridged of their right to speak or write or otherwise to facts affecting injuriously the

pubUsh anything but

life, liberty,

false

property, or reputation of

others or affecting the peace of the confederacy with foreign nations."

One can imagine how free the press would have been during

the controversies over Jay's Treaty or the Louisiana Purchase had

recommendations prevailed and been taken

Jefferson's

Significantly, neither Jefferson

States, before 1798,

way

nor anyone else in the United

extended their "overt acts"

political opinion. Jefferson

seriously.

had devised that

test to

test

freedom of

when

seeking a

to ensure the free exercise of religion. In his Statute of

Re-

hgious Freedom, which became law in Virginia in 1786, he declared that to suffer the civil magistrate to intrude his

powers into the

field

of opinion, and to restrain the profession or propagation of principles,

on supposition of

which

at

once destroys

their all

ill

tendency,

is

a

dangerous

fallacy,

religious liberty, because he being of

course judge of that tendency, will

make

his opinions the rule of

judgment, and approve or condemn the sentiments of others only as they shall square with or differ

enough

for the rightful

to interfere

when

from

his

own; that

purposes of civil government for

it

is

time

its officers

principles break out into overt acts against peace

and good order.

The

overt-acts test applied, in Jefferson's words, only to "opinions

in matters of religion,"

although

its

principle should have been as

relevant in cases of political opinion and had been specifically

extended to such cases by many English

theorists.

Virginia's legislature did not extend the overt-acts test to pro-

scribed political utterances. In the same year that

it

enacted the

Statute of Religious Freedom, 1786, the legislature passed a law

FIRST AMENDMENT: FREE PRESS

that penalized advocacy that a

::

111

new state be carved out of the state's

boundaries without the legislature's consent.

The

statute did not

bespeak broad understanding in Virginia that freedom of political speech and press included a right to express any principle that did not "break out into overt acts."

embodied the bad-tendency tinguish

test

On

the contrary, Virginia

of utterances by failing to dis-

mere words from the overt criminal

by unconstitutional means

to erect a

act of attempting

new government within

the

state's territory.

Virginia reenacted the

same

statute in 1792

when

The new

"Act Against Divulgers of False News."

it

passed an

act of 1792,

which covered printers and others who misinformed the people,

showed

that the legislature believed that

without restraining

it

in violation

it

of the

could regulate the press

state's free press clause.

Virginia's public law accepted prosecutions for criminal words,

and

in the later

words of a member of the Assembly,

"it is

known

to

the people that in a prosecution for libel in Virginia, under the state laws,

you can neither plead nor give

in evidence the truth

of

the matter contained in the libel." In other words, Virginia even rejected the bedrock of the

No No

state got rid

Zenger

case, that truth is a defense.

of the common-law concept of seditious

libel.

state gave statutory or constitutional recognition to the overt-

acts test state

embodied

in the

adopted truth as

preamble of Virginia's 1786

a defense

If an objective of the Revolution

exposition of the sion,

how

common-law

statute.

No

during the period 1776- 1789.

was

to repudiate Blackstone's

restrictions

on freedom of expres-

very strange that Americans of the revolutionary gen-

eration did not say so. Excepting a few dissident reactions to

the Oswald prosecution in Pennsylvania in 1782, Americans ac-

cepted the justice of punishing false opinions or malicious scandals against the government.

The

history of the reception of the

common

law during the

Revolution tends to establish the acceptance of the Blackstonian

112

FIRST AMENDMENT: FREE PRESS

::

and speech. Twelve

definition of liberty of press all

states,

including

nine guaranteeing a free press, provided by constitution or

common law of England before the Revolution was

statute that the

to operate with full force unless inconsistent with or

some other case,

statutory provision.

repudiated

its

pressly adopted the

principles.

common

New

The

repugnant to

home

York, the

of Zenger's

state constitution of

1777 ex-

law as of the date of the outbreak of

the war with England. In the states where no protection to free-

dom

of speech or press was afforded, there

an implication that

it

was the intention

republican government

may be

is

not even the basis of

to get rid of the idea that a

criminally assaulted by the opin-

ions of its citizens.

In 1787 Massachusetts, which had a free press clause, indicted several people

among

who encouraged and supported

Shays's Rebellion;

the defendants were George Brock and

Gideon Pond,

cused of having published "scandalous, seditious" the government. Although their cases never

did convict Captain

came

ac-

libels against

to trial, the state

Moses Harvey of "seditious and inflammatory

words" because he called the

legislature "thieves"

and urged the

closing of the courts. In April 1787 the most important of these cases

was

Supreme

tried.

A

Judicial

jury convicted Dr. William Whiting before the

Court

sitting in

Great Harrington, which was

No ordinary libeler, Whiting was Common Pleas of Berkshire County

the scene of Whiting's crime.

chief justice of the Court of

Shortly before the article,

fall

term of his court

in 1786,

he had written an

signed Gracchus, in which he censured the government for

who

lacked

redress of grievances should "disturb the government."

When

unjust laws and

recommended

that a virtuous people

Shays's Rebellion broke out, armed

men

with

whom

he sym-

pathized closed his court. After the defeat of Shays at Petersham, the government began judicial post

its arrests.

Whiting was dismissed from

and convicted of writing

his

a seditious libel; his prison

sentence was suspended, but he had to pay a one-hundred-pound

FIRST AMENDMENT: FREE PRESS

fine

and post sureties

good behavior

for

::

113

No

for five years.

one

claimed that the free press clause of the state constitution stood in the

way of a prosecution In

1

79

for seditious libel.

Edmund Freeman,

1

grossly libeled the private

life

newspaper

a

of a

editor, for

member of the

having

legislature,

was

criminally prosecuted on the theory that his words tended to

breach the public peace of the Commonwealth. Attorney General

James Sullivan,

later Jeffersonian

governor of the

state,

main-

meant only

tained that the constitutional guarantee of a free press

the absence of a Hcensing act; he quoted Blackstone at length to

prove the point and urged that licentiousness must be distinguished from

The

liberty.

Sullivan's principles.

defendant's attorneys did not challenge

Although they did not ask

for a ruling that

truth was a defense, they denied licentiousness or breach of peace

on the part of Freeman and sought publication.

Of the

three judges

accepted truth as a defense. as historian

The

to prove the accuracy of his

who

presided at the

jury's verdict

Clyde A. Duniway concluded

Freedom of the Press

in

Massachusetts:

liberty of the press in the state

"A

in

was not

trial,

none

guilty,

but

The Development of

judicial construction

had been announced, differing

in

of

no

wise from the opinions of Chief Justice Hutchinson in 1768 or of the Superior Court of Judicature in 1724. In effect, that the constitutional provision of 1780

the law as

it

had existed

it

was affirmed

was merely declaratory of

for nearly sixty years, with

an added

prohibition of any possible reestablishment of censorship." This

observation has the substantiation of the prosecutions for seditious libel against the editor of the

Boston Independent Chronicle

and the paper's clerk and bookkeeper.

Two to

states, in the

midst of affording a constitutional guarantee

freedom of rehgion, provided that

tify libeling

the government.

its

exercise could not jus-

North Carolina's

article

on

religious

liberty (1776) contained this qualification: "Provided, that noth-

ing herein contained shall be construed to exempt preachers of

114

::

FIRST AMENDMENT: FREE PRESS

treasonable or seditious discourses, from legal

ment." libel,

If preachers

trial

and punish-

were not exempt from the law of seditious

others were not either. South Carolina's equivalent clause

(1778) stated:

"No person whatever

shall

speak anything in their

religious assembly irreverently or seditiously of the this State." If

government of

people could not speak seditiously of the state in

To the same effect, though

church, they could not do so elsewhere.

not as explicitly, are the quahfying clauses of the religious freedom provisions in the

first

constitutions of New York,

Massachusetts, Georgia, and Maryland.

The

New Hampshire,

last, for

provided (1776) that no one "under colour of rehgion

example, .

.

.

shall

disturb the good order, peace, or safety of the State, or shall infringe the laws of morality."

At common was

to disturb the peace of the state

law,

an utterance tending

seditious.

New

York,

New

Hampshire, Massachusetts, and Georgia used similar language, prohibiting exercises of religion repugnant to the public peace or safety.

Before 1798, the avant-garde

among American

libertarians

staked everything on the principles of the Zenger case, which they

thought beyond improvement. They believed that no greater

lib-

erty could be conceived than the right to publish without restriction, if

only the defendant could plead truth as a defense in a

criminal prosecution for

libel,

and

if

the criminality of his words

might be determined by a jury of his peers rather than by a judge.

The

substantive law of criminal libels was unquestioned. But lib-

ertarians

who

accepted Zengerian principles painted themselves

into a corner. If a jury returned a verdict of "guilty" despite a

defense of truth, due process had been accorded and protests were groundless, because the substance of the law that

made

the

trial

possible— criminal responsibility for abuse of the press— had not

been challenged.

American acquiescence

in the

common-law

press was so widespread that even the

frail

definition of a free

Zengerian principles

seemed daring and novel and had few adherents. Not

until

1790

FIRST AMENDMENT: FREE PRESS

did the

first

state,

Pennsylvania, take the then radical step of

adopting those principles, which of seditious

115

::

libel intact.

The

still left

the crux of common law

Pennsylvania provision was drafted

by James Wilson, who endorsed Blackstone's definition of liberty of the press.

The

of 1790 reflected

state constitutional provision

this proposition, as did state trials before

and

after 1790.

Delaware and Kentucky followed Pennsylvania's lead

in 1792,

but elsewhere the status quo prevailed. In 1789 William Gushing

and John Adams worried about whether the guarantee of press in Massachusetts ought to fense to a charge of criminal lications against the

mean

libel,

that truth

was

a free

good de-

but they agreed that false pub-

government were punishable. In 179 1, when

Massachusetts editor was prosecuted for a criminal state official, the

a

libel

Supreme Judicial Court divided on

of truth as a defense but agreed,

like the

a

against a

the question

Pennsylvania judges, that

the state constitutional guarantee of a free press

accommodated

common-law crimes of libel. pronouncements show no greater enlightenment. None

State

of the

first

nine states to ratify the Constitution

amendment guaranteeing freedom of speech

recommended an

or press. Indeed, the

Pennsylvania ratifying convention, led by Wilson and

McKean,

rejected the minority's proposal for such an

Thomas

amendment,

and the Maryland convention took no action on any of the amend-

ments recommended by

its

committee on amendments, one of

which declared, "That the freedom of the press be inviolably preserved."

The committee had added

this explanation:

"In prosecu-

tions in the federal courts for libels, the constitutional preservation of the great

and fundamental right may prove invaluable."

The

necessary implication of this

libel

might be maintained

is

that prosecutions for criminal

in the federal courts

under

common

if

not statutory law, and that the free press guarantee would provide

some advantage

to the

defendant— possibly truth

as a defense or a

general verdict by a jury.

Of the

twelve states to ratify the Constitution before Congress

116

drafted the First ginia,

::

FIRST AMENDMENT: FREE PRESS

Amendment

North CaroHna, and

in 1789, only the last three, Vir-

New

York, sought to safeguard the

expression of political opinion from violation by the

new

national

government. Virginia urged that "among other essential rights the liberty of Conscience and of the Press cannot be cancelled

abridged restrained or modified by any authority of the United States." Virginia sought to prevent a concurrent jurisdiction in the

national government

on the subject of criminal

State sov-

libels.

ereignty probably dominated Virginia's concern.

New

companied

1788 with the

its

ratification of the Constitution in

recommendation

for

York ac-

an amendment worded "That the Freedom

of the Press ought not to be violated or restrained," although no

comparable provision existed in that a

New

four

York court imprisoned a

months and

fined

him

state's constitution. In

printer,

for the

1799

David Frothingham,

for

crime of having copied from

another newspaper the criminal innuendo that Alexander Hamilton opposed the repubhcan form of government and worked with the British government to undermine

it

by trying

to

buy out the

Philadelphia Aurora. Hamilton himself instigated the indictment

on the theory

that the

calumny against him had the "dangerous

tendency," he said, of destroying the confidence of the people in the leading defenders of the administration. At Frothingham's trial

the court refused to allow evidence to prove the truth of

his accusation, even

though the prosecution consented

to

permit

truth as a defense. Hamilton, the star witness for the state, testified that the Philadelphia Aurora, the source of the seditious libel

and

the country's foremost Jeffersonian newspaper, was hostile to the

government of the United

As

States.

for the states that constitutionally protected

speech or press, the evidence for the period

show an understanding

1

freedom of

776-1 791 does not

that the crime of seditious libel

ernment by consent of the governed contradicted each

and gov-

other.

State recommendations that a free press clause be annexed

FIRST AMENDMENT: FREE PRESS

::

117

to the Constitution did not signal a different theory about the

compass of freedom of

meant

Federalists

in

Whatever the Anti-

political expression.

recommending

a bill of rights with a free

press clause, they transformed political opinion in the nation. In

1787 a consensus had existed to strengthen the national govern-

ment. In 1788 a new consensus existed: ratify the Constitution with the understanding that a

bill

of rights be added to

stitution

by turning public opinion

A failure

have aborted the Con-

to fulfill public expectations could easily

tutional convention that

it.

of a second consti-

in favor

would have scrapped the Constitution

and merely modified the Articles of Confederation. Madison prevented

by

that.

He

saved the

new system and

ments

He

that

became the

Bill

his

own

Congress

his successful struggle in the First

political career

for the

amend-

of Rights.

described freedom of the press as one of the "choicest" of

the "great rights of

mankind" and sought vainly

to secure

against violation by the states as well as by the United States.

he said nothing

in 1789, or earlier, that revealed

a free press clause.

none of the great freedom documents, such

of Rights of 1689, mentioned the press.

and

that

peared

He

in

But

what he meant by

Although he remarked that freedom of the

press was unguarded by the British constitution, he that

it

Had

meant only

as the English Bill

he meant more than

any way implied a novel view, proof would have ap-

in his private

capitalized

correspondence,

not his public speeches.

on existing public opinion; when he proposed

amendments he did not intend popular mind.

if

He sought,

to reshape either the legal or the

rather, to satisfy the

for protection of rights, rather than

said explicitly that

his

widespread clamor

provoke fresh controversy.

Congress should "confine"

meration of simple, acknowledged principles."

itself to

The

He

"an enu-

entire history

of the framing and ratification of the free press clause, from 1789

through

1

79 1, suggests nothing

new about

its

meaning or how

was understood. Madison did, however, contribute

it

a crucial verb

118

FIRST AMENDMENT: FREE PRESS

::

to the free press clause

by providing that

The Pennsylvania minority had used tion

and no

state ratifying

voice; previously the

What import adoption.^ Its

it

"shall" be inviolable.

"shall" but

no

state constitu-

convention had used the imperative

weaker "ought" prevailed.

did the free press clause possess at the time of its

meaning was surely not

self-evident.

The

contro-

versy in the states over the ratification of the Constitution without a bill of rights

had revealed

little

about the substance and scope of a

and the debates by the First Congress, which framed

free press,

the free press clause, illumined even clauses it

on

religion, but

Congress debated the

less.

on the remainder of the

First

Amendment

considered only whether the right of peaceable assembly vested

how

the people with the power to instruct their representatives on to vote. In the course of that discussion,

Madison made the only

recorded statement on the subject of speech or press. If by peaceable assembly, he said,

"We mean

nothing more than

this, that

the

people have a right to express and communicate their sentiments

and wishes, we have provided of speech

is

for

it

already.

secured; the liberty of the press

The is

right of

freedom

expressly declared

to be beyond the reach of this Government." Any interpretation of

the meaning and compass of the free press

drawn from

this

vague

statement would strain credulity.

The

state legislatures that ratified the First

no enlightenment debates,

either.

Without the records of

offer

their legislative

we do not know what the state legislatures understood

free press clause to

help either.

dom

Amendment

the

mean. Other contemporary materials do not

Most people undoubtedly cared about

protecting free-

of the press, but no one seems to have cared enough to clarify

what he meant by the subject upon which he lavished definition

were unnecessary because of the existence of a

praise. If tacit

and

widespread understanding of "liberty of the press," only the received or traditional understanding could have been possible.

assume the existence of a generally accepted

To

latitudinarian under-

FIRST AMENDMENT: FREE PRESS

Standing that veered substantially from the tion

is

::

119

common-law

warrantless, given the absence of evidence.

Any

defini-

novel defi-

nition expanding the scope of free expression or repudiating, even altering, the

concept of seditious

libel

would have been the subject

of public debate or comment. Not even the Anti-Federalists offered the

argument

that the clause

satisfactory because

it

was

on speech and press was un-

insufficiently protective against pros-

ecutions for criminal defamation of the government.

they urged the truth could be no

Even

if

upon the

we assume

Framers

really

be no law abridging freedom of the press— we

shall

should recognize that the Framers cared qualified

rights

intended to impose

government "an absolute, unqualified prohibi-

national

tions—there

that the

Not even

libel.

immunity

less

about giving un-

to all discourse than they cared for states'

and the federal

principle. Granting, for the

moment, an

intention to render the national government utterly powerless to act in

any way against

oral, written, or printed utterances, the

Framers meant the clause

to reserve to the states an exclusive

legislative authority in the field

of speech and press. Thus, no

matter what the Framers meant or understood by freedom of

speech or press, the national government even under the una-

mended

Constitution could not

make speech

subject of restrictive statutory action. First

Amendment

as

ity that

it

as

The Framers

intended the

an added assurance that Congress would be

limited to the exercise of

they phrased

or press a legitimate

its

enumerated powers, and therefore

an express prohibition against the possibil-

Congress might use those powers to abridge freedom of

speech or press.

It

on power did not tent, to abridge

goes without saying that an express prohibition vest or create a

new power,

previously nonexis-

speech or press, because, as Madison declared,

the Bill of Rights was not framed "to imply powers not

meant

to

be included in the enumeration." Because the Senate rejected the House-approved

amendment

to prohibit state

abridgment of

120

FIRST AMENDMENT: FREE PRESS

::

freedom of speech, the First Amendment

left

the states free to act

against individual expression, subject only to such restraints as

might be sists,

laid

down

in state constitutions.

The

big question per-

however: Even had Congress passed, and the states ratified, an

amendment imposing upon the First

the states the same prohibition laid by

Amendment upon the national government, what did the

Framers understand by freedom of speech and freedom of press?

No

one can say

because there sions,

is

for certain

what the Framers had

in

mind

not enough evidence to justify cocksure conclu-

even though

the evidence points in one direction.

all

Whether the Framers themselves knew what they had

mind

in

is

uncertain. At the time of the drafting and ratification of the First

Amendment, few among them clearly understood what they meant by the

free press clause,

and we cannot know that those few repre-

sented a consensus. Considerable disagreement existed, for example,

on the question of whether freedom of expression meant the

right to print the truth about

government measures and

officials if

the truth was defamatory or was revealed for unworthy motives.

Disagreement

existed, too, about the function of juries in trials for

criminal

Zengerian principles had few open advocates.

What

libel. is

clear

that

is

no evidence suggests an understanding

that the concept of a free press conflicted with prosecutions of

seditious utterances.

Freedom of speech and

press was not under-

stood to include a right to broadcast sedition by words.

The

se-

curity of the state against libelous advocacy or attach outweighed

any

social interest in

open expression,

at least

of the adoption of the First Amendment.

through the period

The thought and

experi-

ence of a lifetime, indeed the taught traditions of law and poliextending back

tics

that

freedom of

many

political discourse,

stopped short of seditious

The

generations, supplied an a priori belief

however broadly conceived,

libel.

Sedition Act, passed less than seven years after the

cation of the First

Amendment,

ratifi-

suggests that the generation that

FIRST AMENDMENT: FREE PRESS

::

121

framed the amendment did not consider the suppression of seditious Hbel to be an

abridgment of freedom of speech or

press.

Yet the Framers themselves, whatever they understood freedom

of the press to mean, had given the pubHc specific assurances again and again that neither speech nor press could be the subject

of repressive legislation by a government bereft of authority on that subject.

The

Amendment,

injunction of the First

imply that

a sedition act

freedom of the

press.

therefore, did not

might be passed without abridging the

Even

if a

sedition act might not be an abridg-

ment, that was not the main point of the amendment. stand the Framers' intentions, the

To under-

amendment should not be

read

with the focus only on the meaning of "the freedom of the press." It

should also be read with the stress on the opening clause: "Con-

gress shall

make no law

and understood press,

..." In part, the injunction was intended

whether by means of censorship,

sedition act.

power

.

to prohibit any congressional regulation of the a licensing law, a tax, or a

The Framers meant Congress

to

be totally without

to enact legislation respecting the press, excepting

right laws.

They intended

a federal

government could exercise only powers necessary and proper

system

specifically

in

copy-

which the central

enumerated powers or

to carry out the

enumerated ones.

Thus, no matter what was meant or understood by freedom of the press, the national

government, even

Amendment, could not make regulation.

The

in the

absence of the First

the press a legitimate subject of

objective of the

amendment was

to quiet public

apprehension by offering further assurance that Congress would

be limited to the exercise of

its

delegated powers.

The

First

Amendment could not possibly have enhanced the powers of Congress;

it

did not add to

The amendment press.

them

a previously nonexisting power.

protected the freedom of the press, not the

The freedom of the press and of political discourse generally

had so widened

in

scope that seditious

libel

had become

a rather

122

::

FIRST AMENDMENT: FREE PRESS

narrow category of verbal offenses against government, govern-

ment

officials,

and government

policies.

nition of seditious libel remained

what

To

it

be sure, the legal defi-

had been from the time of

Sergeant William Hawkins, author in 171 6 of a major treatise on criminal law, to

Lord Chief Justice William Murray,

mahcious, scandalous falsehoods of a

field:

tended to breach the peace,

instill

earl

political

of Mans-

nature that

revulsion or contempt in the

people against their government, or lower their esteem for their rulers.

But prosecutions

government were

for criticism of

infre-

quent, and the press was habitually scurrilous. Governments forbore, realizing that prosecutions might critics

fail

or backfire because

represented strong factions and, often, influential men.

Moreover, public opinion, except

in times of crisis like Shays's

Rebellion, tended to distrust an administration that sought to

imprison

its critics.

and animadversive

The as

it

press could not have endured as aspersive

was without public support. For the most

part people understood that

companied the benefits also to have

to

scummy

journalism unavoidably ac-

be gained from a free press. People seem

understood that

critics

vented unfavorable opinions in

order to excite a justifiable contempt for the government; to prosecute those critics seemed to immunize from criticism public cials

who had probably deserved

The

actual

ducted

The

itself as if

offi-

be disliked or distrusted.

freedom of the press bore

that, as a legal concept,

constraints.

to

slight relation to the fact

freedom of the press was a cluster of

law threatened repression; yet the press conthe law scarcely existed. In 1799

served that in England, despite the

common

"the occasional punishment of those offensive to the government,"

all

who

knew

Madison ob-

law on the press and

use

it

with a freedom

that "the

freedom ex-

ercised by the press, and protected by the public opinion far ex-

ceeds the limits prescribed by the ordinary rules of law."

The

English press, said Madison, criticized the ministry "with peculiar

freedom," and during elections for the House of

Commons

the

FIRST AMENDMENT: FREE PRESS

calumnies of the press raged. as

much

The American

::

123

press enjoyed at least

freedom.

When

the Framers of the First

Congress

Amendment

freedom of the

shall not abridge the

provided that

press, they could

only have meant to protect the press they knew and as at the time. In effect,

of the press as

it

it

operated

they constitutionally guaranteed the freedom

existed and was then practiced.

They

did not

adopt the limited conception of it found in the law or in the views

By freedom of

of libertarian theorists.

meant sions

a right to

on

all

definition

engage

the press, the Framers

in rasping, corrosive,

topics of public interest.

The

and offensive discus-

English

had become unsuitable, and American

had not caught up with press States derived

practice.

libertarian theory

Government

from the people, who reserved

common-law in the

United

a right to alter

the government was accountable to the people.

it,

and

That required

a

broader legal concept of freedom of the press than existed in

England, where the monarch was a hereditary ruler not accountable to the people

and the House of Lords was

also not elected or

accountable. Glimmerings of a broader libertarian theory existed

but did not systematically emerge until 1798. In a sense, the constitutional guarantee of freedom of the press signified

nothing new.

the press.

It

Freedom of the restraints

It

did not augment or expand freedom of

recognized and perpetuated an existing condition. press meant, in part, an exemption from prior

and continued

to

mean

that.

The

practical

problem

faced by writers and printers dealt with subsequent punishment for licentious use of the right to publish without prior restraint.

The

press remained subject to the

common law despite a constitu-

tional guarantee, but the threshold of public tolerance

cantly widened.

Thus freedom of the

freedom from prior the government,

restraint. It

its officers,

press

meant the

and

its

on matters of public concern. The

had

signifi-

meant more than

just

right to criticize harshly

policies as well as to

right to criticize

comment

and comment

124

no longer implied

dom

FIRST AMENDMENT: FREE PRESS

::

a decent or

temperate fashion.

It

for foul-tempered, mean-spirited expression.

meant

purposes what the law called malice did not signify disposition; listeners to

ment. But

this

for

damage

just a nasty

an intention to provoke readers or

signified ill-will,

it

hope

a free-

For practical

to the public weal or to the govern-

broad view of the matter

a decade of the ratification of the First

rests

on

Within

inference.

Amendment, merely mild

criticism, certainly not scorching billingsgate, resulted in convic-

under the Sedition Act, showing a wholly different under-

tions

The public revulsion that shortly

standing of freedom of the press.

manifested

itself in Jefferson's election suggests,

however, that the

FederaHsts of 1798- 1800 misread the free press clause.

Freedom of the

press signified not only freedom from prior

restraints; if politics allowed,

it

also

law for damaging publications.

It

meant meant,

under the

responsibility

too, that the press

en-

joyed a preferred position in the American constitutional scheme

because of

special relation to popular government.

its

toral process

would have been

a

sham

assistance of the press in learning

if

The

elec-

voters did not have the

what candidates stood

showed about past performance and

for

and

what

their records

tions.

A free press was becoming indispensable to the existence of a

free

qualifica-

and responsible government. Even Blackstone conceded,

"The

liberty of the press

is

indeed essential to the nature of a free

state." Its essentiality derived also

from the

become the tribune of the people by conduct of public Fourth Estate

officials.

or, rather, in

A

fact that the press

sitting in

free press

had

judgment on the

meant the press

as the

the American scheme, an informal or

extraconstitutional fourth branch that functioned as part of the intricate

system of checks and balances that exposed public mis-

management and kept power fragmented, manageable, and countable.

Freedom

of the press had accrued

that intimately associated tional protection.

The

it

with a free

cliche that

it

state,

still

ac-

another function

meriting

its

constitu-

was the bulwark of

liberty.

FIRST AMENDMENT: FREE PRESS

::

125

"essential," as the Massachusetts constitution asserted, "to the

security of freedom in a state,"

meant

that the existence of various

personal liberties depended at least in part on the vigilance of the press in exposing unfairness, inequality, and injustice.

become

the press had

part of the matrix for the functioning of

popular government and the protection of civil It

liberties.

does not necessarily follow that the Framers desired to give

The

the utmost latitude to expression.

embody an it

Freedom of

absolute because not

all

Amendment

First

speech

is

did not

free speech, or, to put

another way, there are several classes of speech or of publication,

some of which were not intended bric of

to

be categorized under the ru-

"freedom of speech" or freedom of the

press.

Framers intend that the federal mails should be open

Did

to

the

porno-

graphic materials or that a speaker should be free to incite violence directly

and immediately against the United

tend that knowingly against the

false,

malicious, and

government should be

free?

States.^

Did they

in-

damaging calumnies

Madison himself was

"in-

clined to think that absolute restrictions in cases that are doubtful, or

where emergencies may overrule them, ought

the Framers did not intend that

should be

draw the

all

question

free, the crucial

to

be avoided." If

speech, without exception, is,

where did they intend

to

between speech that was constitutionally protected

line

and speech that was

not.^

The

eighteenth century did not pro-

vide answers. In 1798, however, a sudden breakthrough occurred in Ameri-

can libertarian thought on freedom of political expression.

change was abrupt,

which was

radical,

The

and transforming. The Sedition Act,

a thrust in the direction of a single-party press

and

a

among the The result was the emergence of a new body of liber-

monolithic party system, triggered a libertarian surge Republicans.

tarian thought.

The

Federalists in 1798 believed that true

would benefit

if

freedom of the press

truth— their truth— were the measure of freedom.

126

::

FIRST AMENDMENT: FREE PRESS

Their infamous Sedition Act was, Sullivan, the true

that

is,

in the later

words of Gilbert and

embodiment of everything

excellent. It was,

the very epitome of libertarian thought since the time of

Zenger's case. Everything that the libertarians had ever demanded

was incorporated

in the Sedition Act: a

requirement that criminal

power of the jury

intent be shown; the

whether the

to decide

accused's statement was libelous as a matter of law as well as of fact;

in

and truth

England

which was an innovation not accepted

as a defense,

By

until 1843.

every standard the Sedition Act was a

press—

great victory for libertarian principles of freedom of the

except that libertarian standards abruptly changed.

The

Sedition Act provoked the Republicans to develop a

libertarian theory. It

began

to

emerge

in 1798

new

when Congressmen

Albert Gallatin, John Nicholas, Nathaniel Macon, and Edward

Livingston argued against the enactment of the sedition

bill.

It

was further developed by defense counsel, most notably George Blake, in Sedition Act prosecutions.

and systematic expression

became

rare

and

little

in tracts

It

reached

its

most

reflective

and books that unfortunately

known. The main body of original Republi-

can thought on the scope, meaning, and rationale of the First

Amendment was

expressed in George Hay's tract

Liberty of the Press; in Madison's Report

Essay on the

on the Virginia Resolu-

House of Delegates;

tions for the Virginia

An

in the

book

A

Treatise

Concerning Political Enquiry, and the Liberty of the Press, by Tunis

Wortman of New Concerning the

York; in John Thomson's book

Liberty and Licentiousness of the

George Tucker's appendix taries, a

most

is

preeminent

to his edition of Blackstone's

Of these

in St.

Commen-

libertarians

of Blackstone and the

John Stuart

abandoned the

common

on

works, Wortman's philosophical

as the only equivalent

Atlantic to John Milton and

The new

Enquiry,

and

significant place for the repudiation of Blackstone

the liberty of the press.

book

An

Press;

on

this side

of the

Mill. straitjacketing doctrines

law, including the recent

concept

FIRST AMENDMENT: FREE PRESS

common

of a federal

law of crimes.

They

::

127

denounced

scornfully

the no-prior-restraints definition. Said Madison: "this idea of the

freedom of the press can never be admitted

to

be the American

it,"

because a law inflicting penalties would have the same

effect as a

law authorizing a prior restraint. "It would seem a

idea of

mockery tions

ing

to say that

them

in case they

definition" for

no laws

shall

be passed preventing publica-

from being made, but that laws might be passed

meant

should be made." As

that a

man might

be

Hay

put

jailed or

it,

for punish-

the "British

even put to death

what he published, provided that no notice was taken of him

before he pubhshed.

The

old yardstick for measuring the scope of freedom was also

rejected by the

new

libertarians.

"Liberty" of the press, for ex-

ample, had always been differentiated from

which was the object of the criminal "facts"

its

"licentiousness,"

"Truth" and

law's sanctions.

had always divided the realm of lawfulness from

hoods," and a similar distinction had been

"false-

made between "good

motives" and "criminal intent." All such distinctions were

now

discarded on the grounds that they did not distinguish and therefore

were not meaningful standards that might guide a jury or a

court in judging an alleged verbal crime. ness," wrote

Thomson,

"is destitute

The term

who wished "nobody

according to him, by those

Liberty of the Press but such as were of their

term "malice,"

in

Wortman's

mistaken zeal or prejudice.

It

view,

own

it

was used,

to enjoy the

opinion."

The

was invariably confused with

was merely an inference drawn from and

just a

means of punishing the excitement of unfavorable

senti-

the supposed evil tendency of the publication further

"licentious-

of any meaning";

itself,

ments against the government even when the people's contempt of the government was richly deserved. ice," or intent to

The punishment

of "mal-

defame the government, concluded Madison,

necessarily struck at the right of free discussion, because critics

intended to excite unfavorable sentiments. Finding criminality in

128

::

FIRST AMENDMENT: FREE PRESS

the tendency of words was merely an attempt to erect public "tranquility

The

.

.

.

upon

Wortman.

the ruins of Civil Liberty," wrote

wholesale abandonment of the

common

law's limitations

on the press was accompanied by a withering onslaught against the

The

constrictions and subjectivity of Zengerian principles. tion Act,

Hay

charged, "appears to be directed against false hood

and malice only;

in fact

.

.

.

there are

many

which are not susceptible of that

society,

Sedi-

truths, important to

full, direct,

and positive

evidence, which alone can be exhibited before a court and a jury." If,

argued Gallatin, the administration prosecuted a citizen for his

opinion that the Sedition Act

itself

was unconstitutional, would

not a jury, composed of the friends of that administration, find the

opinion "ungrounded,

and

its

publication malicious.^

evidence, in the present

vince the

other words, false and scandalous,

or, in

them

new

And by what

kind of argument or

temper of parties, could the accused con-

that his opinions were true.^"

The

truth of opinions,

libertarians concluded, could not be proved. Allowing

"truth" as a defense and thinking

Thomson

declared,

made

as

it

much

to

be a protection for freedom,

sense as letting a jury decide

which was "the most palatable food, agreeable drink, or beautiful color."

A

pohtical

jury,

trials.

he asserted, could not give an impartial verdict

Madison agreed, commenting that

dency" of prosecutions

for seditious libel

in

the "baleful ten-

was "Httle diminished by

the privilege of giving in evidence the truth of the matter contained in political writings."

The

renunciation of traditional concepts reached

its

cHmax

in

the assault on the idea that there was such a thing as a crime of seditious libel.

That crime, Wortman concluded, could "never be

reconciled to the genius and constitution of a Representative

Commonwealth." He and the others constructed nism, genuinely radical because

it

a

new

libertaria-

broke sharply with the past and

advocated an absolute freedom of political expression.

major tenets of this new libertarianism was that

a free

One of the

government

FIRST AMENDMENT: FREE PRESS

::

129

cannot be criminally attacked by the opinions of its citizens. Hay, for example, insisted that

freedom of the

either "absolute" or did not exist.

press, like chastity,

was

Abhorring the very concept of

verbal political crimes, he declared that a citizen should have a right to "say everything

ploy

all

and

his time,

all

which

his talents, if he

is

may em-

he

his passions suggest;

wicked enough,

in speaking against the government matters that are

to

false,

do

so,

scan-

dalous and malicious," and yet he should be "safe within the sanctuary of the press" even

can institutions

.

.

.

if

he "condemns the principle of republi-

censures the measures of our government, and

every department and officer thereof, and ascribes the measures of

however

the former, however salutary, and conduct of the

latter,

upright, to the basest motives; even if he ascribes to

them measures

and

acts,

which never had existence; thus violating

at once,

every

principle of decency and truth."

In brief, the

new

libertarians advocated that only "injurious

conduct," as manifested by "overt acts" or deeds, rather than words, should be criminally redressable.

They

did not refine this

proposition except to recognize that the law of libel should continue to protect private reputations against maHcious falsehoods.

They

did not even recognize that under certain circumstances

words may immediately and directly

incite criminal acts.

This absolutist interpretation of the First Amendment was based on the that free

now

familiar,

but then novel and democratic, theory

government depends

on freedom of

political discourse.

according to this theory,

ernment and

for its very existence

its

is

The

and security

scope of the amendment,

determined by the nature of the gov-

relation to the people.

Because the government

is

the people's servant, exists by their consent and for their benefit,

and said

is

constitutionally limited, responsible,

Thomson,

upon

tell

the citizen:

"You

certain subjects; or if you do,

it is

shall at

and

elective,

it

cannot,

not think this or that

your peril."

The concept

of seditiousness can exist only in a relation based on

inferiority,

130

::

FIRST AMENDMENT: FREE PRESS

when people are subjects rather than

sovereigns and their criticism

imphes contempt of their master. "In the United States," Madison declared, "the case

ment of unHmited

is

altogether different." Coercion or abridg-

Wortman

political opinion,

meant

a

explained, would

state"— by which he

violate the very "principles of the social

government of the people. Because such a government de-

pended upon popular elections, the widest possible latitude torate free, informed,

all

the

new libertarians agreed

must be maintained

and capable of making

to

that

keep the elec-

intelligent choices.

The citizen's freedom of political expression had the same scope as the legislator's, and had the

same reasons behind

might be dangerously abused, but the people, opinion, would decide on

men and

measures

if

it.

That freedom

exposed to every

wisely.

This brief summary of the new libertarianism barely does tice to its

complexity and sophistication but suggests

originality,

its

jus-

boldness,

and democratic character. The new libertarianism de-

veloped, to be sure, as an expediency of self-defense on the part of a besieged political minority that

existence and

its

was struggling

right to function unfettered.

tarians established, virtually

all at

once and

to maintain its

But the new

in nearly perfect form,

a theory justifying the rights of individual expression

position parties.

That the Jeffersonians

in

liber-

and of op-

power did not always

adhere to their new principles does not diminish the enduring nobility

and rightness of those

principles. It proves only that Jef-

fersonians set the highest standards of freedom for themselves and posterity.

Their legacy was the idea that there

is

an indispensable

condition for the development of free people in a free society: the state

must be

bitted

and bridled by

a bill of rights that

is

to

be

construed in the most generous terms and whose protections are not to be the playthings of momentary majorities. That legacy

deepened and enriched American Hbertarian theory, but

surmount the and

it

did not

resistance of the law. Ultimate victory in the courts

statutes belongs to Alexander Hamilton's restatement of Zen-

gerian principles.

FIRST AMENDMENT: FREE PRESS

::

131

Hamilton, a supporter of the Sedition Act and of prosecutions for criminal libel, believed that the law of libel should be

by the principles of the Zenger

mate freedom of the

press. In

sonian opponents in

New

political capital

The

ples.

and

1804 he was permitted by his Jeffer-

York,

who were

legal history

state indicted

editor, for the

governed

case, in order to protect the legiti-

then in power, to make

by advocating these old princi-

Harry Croswell, an obscure Federalist

common-law crime of seditious

libel against Presi-

dent Jefferson. Croswell's crime was his publishing of the accusation that Jefferson

nounced

had paid

Morgan Lewis,

Justice

George Washington de-

to have

and John Adams

as a traitor

as

an incendiary. Chief

a Jeffersonian, refused Croswell the

oppor-

tunity of introducing evidence to prove the truth of his statements.

In instructing the jury, Lewis told the jurors that their only duty

was

to

determine whether the defendant had in

fact

published the

statements as charged; that they must leave the court, as a matter

of law, the determination of the statements' libelous character. Lewis, in other words, charged the jury that the law of New York

was the law Zenger

as laid

down by Chief Justice James DeLancey

in the

case.

On the appeal of Croswell's conviction, before the highest court of the

state,

Alexander Hamilton championed the cause of freedom

of the press. That freedom, he said restrictive

(in

words that were even more

than those of the Sedition Act), "consists in the right to

pubHsh, with impunity, truth, with good motives, for

justifiable

ends, though reflecting on government, magistracy, or individuals."

The

Sedition Act itself did not require proof of "good

tives, for justifiable

ends," but Hamilton's position seemed a shin-

ing standard of liber tarianism

views of Chief Justice eral

mo-

when compared with the reactionary

Lewis— or of the

prosecutor. Attorney

Gen-

Ambrose Spencer, another Jeffersonian. Spencer argued from

Blackstone (not Tucker's version) and declared that a true,

libel,

even

was punishable because of its dangerous tendency. The

mer prosecutor had become

a

member

if

for-

of the Supreme Court of

132

::

FIRST AMENDMENT: FREE PRESS

Judicature by the time

it

decided the case.

Had Spencer

not been

ineUgible to participate in the decision, the repressive opinion

reexpressed by Chief Justice Lewis would have jority.

commanded

Instead, the court divided evenly, two against two.

ma-

a

The

opinion of Judge James Kent expressed Hamilton's position. In the following year, 1805, the state legislature enacted a

bill

that allowed the jury to decide the criminality of an alleged libel

and that permitted truth motives and for in the

United States

the press.

as a defense, if published

justifiable ends."

"with good

That standard, which prevailed

until 1964, effectively protected

freedom of

CHAPTER

The Right

to

SIX

Keep and Bear Arms

^y HE Second Amendment Bill

is

the only provision of the

of Rights that has a preamble.

states:

"A

The amendment

well regulated Militia, being necessary to

the security of a free State, the right of the people to

keep and bear Arms,

shall not

vest a personal right to keep

would undoubtedly vest such and

it

be infringed." Does the amendment

and bear arms.? a right.

creates problems about the

If it

had no preamble

But the preamble

is

present,

amendment's meaning. Some

scholars mistakenly believe that the function of the preamble restrict the

If that

were

keeping and bearing of arms to members of the so,

it

the preamble signifies that the

is

to

militia.

amendment refers to

a collective right of the people rather than a personal right of

individuals.

The

But the amendment does protect

theory that the

amendment

bear arms interprets the Second

power of the

states to

maintain

right also supports the

individuals.

vests only a collective right to

Amendment

militias.

as if

Of course,

it

protects the

the collective

powers of the national government,

Congress has the authority

for

to provide for the calhng forth of the

mihtia to execute the laws of the Union. Moreover, Congress has the power to provide for organizing, arming, and disciplining the 133

134

militia,

RIGHT TO KEEP AND BEAR ARMS

::

while the president

is

commander-in-chief of the

militia

of the states when called "into the actual Service of the United States." Nevertheless, a substantial scholarly literature maintains

that those militias exist, at least in part, as a shield against tyranny

by the national government. That notion

is

bizarre, even loony, in

character; the Constitution does not authorize the state militias to

make war

against the national government. However, a right to

insurrection theoretically exists to correct intolerable and systematic abuses.

tion

is

right.

Americans embrace the doctrine that

some

a natural right;

The

state constitutions

a right of revolu-

even endorse that

Constitution nevertheless brands as treason overt acts

or the levying of war against the United States. Militia

do not possess firearms

for the

members

purpose of committing treason, not

even under the collective right theory of the Second Amendment.

According

to the collective right theory, militia

members may

bear arms, but the possession of firearms by persons other than the police or military has

no constitutional warrant. The

right suggests, too, that the maintenance of militias

is

reason for constitutionally allowing an armed public. antiquated view of the Second right to bear

arms only so

Amendment,

that they

and the American

ment does not

Civil Liberties

As

the President's

Supreme Court and lower Federal

Amendment

militia.

Many

American Bar Association

it

endorses a

Commission on Law Enforce-

ment and Administration of Justice declared preted this

this

Union, believe that the amend-

vest a personal right or, rather, that

collective right.

Under

individuals have a

may serve in the

influential authorities, including the

collective

the prime

in 1967,

"The

U.S.

courts have consistently inter-

only as a prohibition against Federal in-

terference with State militias and not as a guarantee of an individual's right to

keep or carry firearms."

Believing that the ual's right to

arms

is

amendment does

keep and bear arms

an individual

right.

The

is

not authorize an individ-

wrong.

The

right to bear

military connotation of bearing

RIGHT TO KEEP AND BEAR ARMS

::

135

arms does not necessarily determine the meaning of a

meant was the

arms. If

all it

military,

whether

right to bear

right to be a soldier or serve in the

army,

in the militia or the

it

would hardly be

a

cherished right and would never have reached constitutional status in the Bill of Rights.

much

The

"right" to be a soldier does not

sense. Life in the military

is

make

dangerous and lonely, and a

uniform

constitutionally protected claim or entitlement to serve in

does not have to exist in order for individuals to enlist

if

they so

choose. Moreover, the right to bear arms does not necessarily have a

miHtary connotation, because Pennsylvania, whose constitution

of 1776

used the phrase "the right to bear arms," did not even

first

have a state

militia. In

Pennsylvania, therefore, the right to bear

arms was devoid of military

significance.

Moreover, such

signifi-

cance need not necessarily be inferred even with respect to states that

had

militias.

Bearing arms could mean having arms. Indeed,

Blackstone's Commentaries spoke expressly of the "right to have

arms."

An

individual could bear

arms without being

a soldier

or militiaman.

The right to bear arms is by no means unlimited. PubHc regulation

may

specify the kinds of

weapons

conditions under which those weapons

may

ulation

amendment

The

subvert the right itself is

evidence that the right

that are lawful

may be

is

kept; but

a personal one, for is

not

militia.

armed and

Militias were possible only because the people were right does not

depend on

Supreme Court does not endorse

a personal

possessed the right to be armed.

To

it is

an indepen-

dent one, altogether separate from the maintenance of a

whether

no reg-

very language of the

subordinated to the militia clause. Rather the right

The

and the

militias exist.

say that the

right to bear

arms misleads, although the Court has

a restrictive

view of the Second Amendment. In 1939, in United States Miller, the

Court asserted an interpretation that does not

endorse the right to keep and bear arms and

falls

v.

fully

short of fulfilling

136

::

RIGHT TO KEEP AND BEAR ARMS

the intentions of the amendment's Framers. individuals

The Court

ruled that

may justify reliance on the amendment in keeping only

such arms as a member of

and handguns, but not

a militia

might use— shotguns,

rifles,

a short-barreled or sawed-off shotgun (un-

der eighteen inches in length), a machine gun, a bazooka, a can-

non, or assault to qualify

on

As

rifles.

a G.I. in

a variety of

World War

II, I

can recall having

weapons, including short-barreled shot-

guns; the Court was not well informed on government-issued

And

weapons.

the leading text writer on constitutional law, Lau-

rence Tribe, has wrongly endorsed the Court's 1939 decision as a correct interpretation of the

The so

right to have

many American

arms

Second Amendment.

is

an inheritance from England, as are

rights. In 1689,

when England adopted

its Bill

of Rights, which endorsed the right to bear arms, that right was already centuries old. In the twelfth century

gated

all

Henry

freemen to possess certain arms, and

III

Henry

own

a

weapon other than

officers periodically inspected subjects to

properly armed.

The

had

obli-

in the next century

required every subject aged fifteen to

even landless farmers, to

II

fifty,

including

a knife.

Crown

be certain that they were

reason for this requirement was that in the

absence of a regular army and a police force, which was not established until 1829, every

man had

to

do

his

duty

at

watch and ward,

standing guard by day and night in order to confront and capture suspicious persons. Every subject also had an obligation to protect

the king's peace and assist in the suppression of riots. In the event

of a crime, every

man had

to join in the

"hue and cry"— summon-

ing aid and joining the pursuit of anyone

who

resisted arrest or

escaped from custody. In

1

67 1 Parhament for the

deprived almost

measure was cations illegal

a

on the

all

first

Englishmen of the

game

time enacted a statute that right to have arms.

The new

act that so steeply raised the property qualifi-

right to

hunt that possession of firearms became

except for the wealthy few. Charles

II

undertook further

RIGHT TO KEEP AND BEAR ARMS measures to disarm his cessor,

tants

James

II,

by banning

Whig

::

137

opposition, and in 1686 his suc-

favored Cathohc subjects and infuriated Protestheir firearms.

Royal attempts to control weapons

convinced Englishmen that they must have a right to possess

fire-

arms. As a result, they resolved to take steps necessary to ensure their right to

movement

of the

stated a cliche

that

for that right.

when

none might be

slaves,

lieved that the surest

The martyr Algernon Sydney men

declaring that "swords were given to

So, too, political theorists

to

The gentry were in the vanguard

keep and bear arms.

way

but such as

know not how

to use

them."

John Trenchard and Walter Moyle beto preserve the liberties of the people

is

arm them. In 1689 the Glorious Revolution deposed James

stalled as his successor

William of Orange,

who

II

and

in-

pledged to protect

the right of Protestants to have their firearms. Parliament de-

manded "It

is

that protection for individuals

by

initially

recommending:

necessary for the publick Safety, that the Subjects which are

Protestants, should provide fence.

And

that the

and keep Arms

Arms which

them, be restored."

A

for their

common De-

have been seized, and taken from

revised version

more concisely recom-

mended: "That the Subjects, which are Protestants, may provide and keep Arms,

which became estants tions,

for their

law, stated:

may have Arms

and

common

as allowed

98 percent Protestant.

Defence."

The

final version,

"That the Subjects which are Prot-

for their defence suitable to their

by Law." England,

The

incidentally,

Condi-

was about

qualification concerning what the law

allowed was intended to prevent the king from ever again disarming subjects, because Parliament determined what was allowed by

law Parliament had made clear the

fact that the right

belonged

to individuals.

On

the eve of the

American Revolution, English authorities

reaffirmed the right of individuals to have firearms. Blackstone's

Commentaries, the work most frequently cited by Americans, stated

138

RIGHT TO KEEP AND BEAR ARMS

::

that the right "to have"

arms was indispensable "to protect and

maintain inviolate the three great and primary rights of personal

and private property." James Burgh,

security, personal liberty,

whose in

Political Disquisitions

of 1774 was probably more influential

America than John Locke's work, wrote most elaborately about

the right to be armed.

More

than one hundred pages of Burgh's

two-volume work focus on the history and values of an armed public in preference to a standing army.

tomed hyperbole when declaring no better

when arguing

Americans

armed

to be

that subjects without

"is a free

He quoted Andrew Fletcher,

slave;

the

arms, he wrote, "are the only

Burgh exphcitly supported the

right of

in order to preserve their freedoms.

In 1780 the recorder of London, a judge legal adviser,

responded authoritatively

group asking

for his legal opinion

and parade with them.

arms were

that ownership of firearms distin-

guished a free individual from a true badges of liberty."

spoke in the accus-

"A militia-man," he observed,

off than slaves.

citizen; a soldier, a slave for hfe."

Scottish Whig,

He

on

to a

who was

the mayor's

query from a military

their right to

keep firearms

He declared:

The right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable.

It

seems, indeed, to be considered, by the ancient laws

of this kingdom, not only as a right, but as a duty; for of the realm,

who are

able to bear arms, are

times, to assist the sheriif, and tion of the laws right,

bound

all

to

the subjects

be ready,

other civil magistrates, in the

and the preservation of the public peace. And that

which every Protestant most unquestionably possesses,

vidually,

may, and in

likewise a point

at all

execu-

many

which

I

cases,

must, be exercised

indi-

collectively, is

conceive to be most clearly established by

the authority of judicial decisions and ancient acts of parliament, as well as by reason

and

common

In 1782 Granville Sharp,

sense, [emphasis added]

who

cause, denied the loyalty of any

also

supported the American

Englishman who

failed to

defend

RIGHT TO KEEP AND BEAR ARMS

139

::

the right of individuals to have arms. Richard Price, another pro-

American Englishman, writing the prevalence of

arms

in

in 1784, expressed his belief that

America accounted

for its strength.

"Free states," he wrote, "ought to be bodies of armed citizens, well regulated and well disciplined, and always ready to turn out,

properly called upon, to execute the law, quell the peace. Such, ica." Price

on

a

if I

riots,

and

"all nearly

level— trained to arms,— instructed in their rights."

of Englishmen to keep and bear arms was treasured. it

keep

am rightly informed, are the citizens of Amer-

admired the "hardy yeomanry" of America,

pro forma right;

to

when

was both an individual and

It

The right was not

a

a collective one.

Colonial charters and enactments guaranteed English settlers in the

New World the rights of Englishmen, indeed,

of natural subjects, as

if

born and abiding

make such

charter of a colony neglected to

laws like the Massachusetts

Body of

in

"all

the rights

England." If the

a provision, colonial

Liberties of 164 1 remedied

the deficiency. In 1720 Richard West, counsel for the Board of

Trade, said that the English

common

law and

all

statutes enacted

before the settlement of a colony were part of its law, and he added,

"Let an Englishman go where he

and

will,

he carries as

much

liberty with him, as the nature of things will bear."

of law

That law

included, of course, the English Bill of Rights of 1689, which

protected the right of Protestants to have weapons.

New World firearms.

conditions also encouraged the keeping and use of

Hunting was necessary

for meat. Strangers could

be

dangerous. In some areas, foreign enemies, especially the Spanish

and French, might attack

frontiers,

and Indians presented another

widespread menace, requiring colonists to be armed.

Every American colony enacted laws that necessitated both militia service

and guard duty by

all

able-bodied men. Excepting

conscientious objectors, slaves, and clergymen, teen to

fifty

or sixty (depending

service in the militia.

Men who

all

men

aged six-

on the colony) were subject

to

were disabled were obligated to

140

RIGHT TO KEEP AND BEAR ARMS

::

hire substitutes in their places. Several colonies required not only

those eligible for militia service but

all

men, including indentured

servants, to provide firearms for themselves

jects to

and

for

members of

towns and a few colonies required sub-

their households. Several

go about armed even on the way to church. Internal dan-

gers and the possibility of insurrection, as well as foreign and

Indian dangers, explain such legislation. After Bacon's Rebellion of 1676 in Virginia, the royal governor,

"How

Sir William Berkeley complained,

who governs

a people

when

six parts

Poore Endebted Discontented and

miserable that

man

of seaven [seven] at least are

Armed

[sic]."

The

right to

have arms was so basic that regulation seeking to control

knowledged

it.

For example, an

cial to

"all

go." Because that liberty

the peace," the legislature

The new

act

amended

seemed "prejudi-

the statute, but the

penaHzed assemblages of

men, and the governor conceded the and bear arms

for his

own

Arms were common. An made

the right to bear

five

or

more armed

right of an individual to keep

protection and use.

English minister, on the eve of the

American Revolution, wrote: imported, are daily

ac-

persons to carry their

amendment simply showed how entrenched was arms.

it

act of the Virginia legislature

noted that liberty had been granted to

arms wheresoever they

is

in

"Rifles, infinitely better

many

than those

places in Pennsylvania, and

all

the gunsmiths everywhere constantly employed. In this country,

my

lord, boys, as

soon as they can discharge a gun, frequently

exercise themselves therewith, ing.

The

a fowling

great quantities of game, the

privileges of killing

many

and others

kinds,

He added

"would cut

to pieces ten

hunt-

and the great

that a thousand of these

in

American riflemen

thousand of your best troops." In 1768,

the British reinforced their military in Boston,

the Times, a

a

making the Americans the best marksmen

the world."

when

some

newspaper founded

to popularize

ances, urged Americans to retain their

A Journal of

American griev-

arms and reminded them

RIGHT TO KEEP AND BEAR ARMS

EngHsh

that the

of Rights had recognized the "privilege of

Bill

The paper

possessing arms."

141

::

declared, "It

is

which

a natural right

the people have reserved to themselves, confirmed by the Bill of Rights, to keep

arms

for their

own

defence." So, too, John

Adams

quoted Serjeant-at-Law William Hawkins's Pleas of the Crown, a widely used and authoritative treatise of 171 6 and often reprinted, regarding the right: "Here every private person to

arm himself"

for his

own

defense. Similarly,

authorized

is

Samuel Adams

quoted Blackstone on the personal right to bear arms.

Americans abhorred large standing armies. During the controversy with Britain, James Wilson

condemned George

use of

Ill's

the military in the colonies as part of a plan "of reducing the colonies to slavery." Jefferson scathed the king for having used "large bodies of armed forces" to carry out his policies,

Declaration of Independence, Jefferson indicted kept

"among us

in time of peace, standing

him

and for

in the

having

armies without the con-

sent of our legislatures." Jefferson also proposed that his state constitution should stipulate,

"No freeman

be debarred the use

shall

of arms." Like Washington and others of his a large collection of rifles

smith

who

and

class, Jefferson

had

he was an amateur gun-

pistols;

invented interchangeable firearms parts. In a letter to a

fifteen-year-old nephew, Jefferson praised the importance of "the

gun"

as contributing to "boldness, enterprise

and independence of

mind," concluding: "Let your gun therefore be the constant companion of your walks." Sentiments

American reaction private

arms

effort to seize the setts,

to

Thomas Gage's

General

in Boston.

The

appropriation of

Revolution began with the British

arms and ammunition

and the gunpowder stored

The

like these explain the intense

in

in Lexington,

Massachu-

Williamsburg, Virginia.

Articles of Confederation (1777), our first national con-

stitution,

provided that every colony shall always keep up a well-

regulated and disciplined militia but said nothing about the individual's right to be

armed

for his

own

purposes.

Any such

142

RIGHT TO KEEP AND BEAR ARMS

::

protection would therefore have to derive from state law. Several

provided for

state constitutions

but the Massachusetts

militias,

constitution of 1780 protected the right "to keep and bear arms."

That could have included arms

to provide for the

a personal right as well as a right to bear

common

defense.

But only the Pennsylva-

nia constitution of 1776 referred to the people's right to bear

That reference

"for the defence of themselves." right did not

mean

Amendments, on

the rights of free expres-

from unreasonable searches and

meaning the

to the people's right, is

to the people's

the people collectively or society at large. Both

the First and Fourth sion and freedom

arms

seizures, refer

right of individuals. Free speech

a personal right, not a collective one. So, too, Pennsylvania's ref-

erence to the right to bear arms meant that the right was a personal right. Pennsylvania,

which was the

first

to

employ the phrase "the

right to bear arms," did not even have a militia clause in tution. Consequently, the right

had

to

its

consti-

belong to individuals.

The

Pennsylvania provision rested cheek-by-jowl with the rights to

speech and press, also personal

free

rights.

1777, copied Pennsylvania's language in

Vermont

its

constitution.

Virginia's Declaration of Rights of 1776, ferent, stated:

"That

which was quite

a well-regulated militia,

body of the people, trained

to arms,

is

a year later, in

dif-

composed of the

the proper, natural, and safe

defense of a free State; that standing armies in time of peace,

should be avoided, as dangerous to liberty; and that in military should be under strict subordination

the

civil

all

cases the

and governed

by,

power." This provision notably lacked endorsement of an

individual's right to possess arms,

armed and furnished tia.

to,

their

though Virginians were

own weapons when

in fact

serving in the mili-

Moreover, the language of the Virginia provision allowed for

the interpretation that the right to bear arms was connected with the maintenance of the militia.

North Carolina

constitutionally

safeguarded the right to bear arms for the purpose of defending the state, while Massachusetts offered that protection on behalf of

"the

common

defense."

RIGHT TO KEEP AND BEAR ARMS Massachusetts

in

1780 was the

first to

143

::

use the phrase "to keep

and bear arms." John Adams was responsible

for

it;

in his

mental two-volume defense of the constitutions of the

monuhe

states,

argued that arms in the hands of individual citizens are subject to

The town of Northampton

their discretion to defend themselves. in

Massachusetts protected the individual's right when

and bear arms

that the people have a right to keep

defense as well as for the

common

it

resolved

for their

own

defense. Other Massachusetts

towns had similar provisions. Maryland

mention the right

failed to

to bear

arms but provided

tution.

That language allowed

to bear

arms was connected with the maintenance of a

for a well-regulated militia in its constifor the interpretation that the right militia.

The

other states had no declaration of rights until after the Revolution.

During the debate over the Anti-Federalists,

ratification

who opposed

ratification of the Constitution,

maintained that Congress might militias, a strange

members of

argument

of the Constitution,

weapons

to provide

fail

for the

in view of the fact that individual

the militia possessed their

own weapons. When,

for

example. Congress enacted the Uniform Militia Act of 1792,

it

referred to the militias as consisting of "every free able-bodied

male citizen of the respective states" aged eighteen

and

added that every

it

militia

member should

arms: "That every citizen so enrolled

.

.

.

shall

.

.

provide his .

less

and a knapsack, a pouch with

than twenty-four cartridges

.

.

a .

own

provide himself

with a good musket or firelock, a sufficient bayonet, flints,

to forty-five,

belt,

two spare

box therein to contain not

each cartridge to contain a

proper quantity of powder and ball."

During the controversy over the tion,

ratification

of the Constitu-

however, Anti-Federalists expressed concern that Congress

might neglect the

militias.

ratifying convention, tution, rights,

The

minority

at

the Pennsylvania

drawing largely on their own

state's consti-

proposed various amendments that constituted a

one of which spoke

to the issue of

bill

of

an individual's having

arms: "That the people have a right to bear arms for the defense of

144

::

RIGHT TO KEEP AND BEAR ARMS

themselves and their

own

State, or the

purpose of kilHng game; and no law

United

shall

States, or for the

be passed for disarming

the people or any of them, unless for crimes committed, or real

danger of pubHc injury from individuals." provision repudiated standing armies and

over the military. Richard

on the same theme

The

The remainder

demanded

civil

Henry Lee of Virginia wrote

of the

control

elaborately

in nationally circulated essays.

proposal of the Pennsylvania minority expressed a com-

mon sentiment shared by Federalists as well.

In Massachusetts, for

example, Theodore Sedgwick argued that "a nation of freemen

who know how

and who have arms

to prize liberty

could not be subdued. Samuel

Adams urged

should expressly provide that

it

would not be

hands"

could never be construed "to

prevent the people from keeping their

Noah Webster

in their

that the Constitution

own arms." Lexicographer

agreed, observing that the national government

able to enforce unjust laws because the

"whole body

of the people are armed" and could defeat any federal army. right to bear

arms has frequently been associated with romantic

notions like Webster's.

the belief was widespread that the

Still,

right of individuals to be erties

armed was

and the existence of a

associated with personal lib-

free society.

As Zachariah Johnson

informed the Virginia ratifying convention, the people's were

They

The

safe because they "are not to

liberties

be disarmed of their weapons.

are left in full possession of them." Similarly

John Dewitt,

an Anti-Federalist writer, argued that a well-regulated militia

"composed of the yeomanry of the country have ever been considered as the bulwark of a free people"— a characteristic Ameri-

can idea of English origin. Blackstone, for example, had earlier voiced the thought that tyranny had no chance where the people are armed.

When James Madison the

in

1789 proposed to the First Congress

amendments to the Constitution that became the Bill of Rights,

he included one that drew on his own

state's constitution:

"The

RIGHT TO KEEP AND BEAR ARMS right of the people to keep

and well regulated

well armed,

militia

145

shall not

be infringed; a

being the best security of a

but no person rehgiously scrupulous of bearing arms

free country; shall

and bear arms

::

be compelled to render military service

in

person." Madison

make

the right to bear arms dependent on serving in a

militia. In his

notes for the speech in which he urged Congress to

did not

recommend

constitutional

ments, "They related

i^^

amendments, he wrote of those amend-

to private rights,"

and he referred

to the

English Declaration of Rights, which protected the right of individual Protestant subjects to have arms. In his personal correspon-

dence Madison referred to his proposals as "guards for private rights."

The recommendation

that he

made concerning individual

ownership of arms sprang from his belief that "the greater danger to liberty is

from

The

large standing armies." In

Madison alluded

to "the advantage of being

Federalist,

No. 46,

armed, which the

Americans possess over the people of almost every other nation." Elsewhere, he said, rulers feared having an armed public.

Madison proposed

to interlineate his

amendments

at the

ap-

propriate points in the Constitution, for example, inserting the right to bear

arms not next

"article i^\ Section 9,

to the militia clause but, rather, in

between clauses 3 and

4"— in

other words,

immediately after the guarantee of the writ of habeas corpus and the prohibition of bills of attainder, which respected personal liberty.

He

did not

recommend

rate bill of rights,

referring to the

his

proposed amendments as a sepa-

though he spoke of a

amendments

of rights"

"bill

when

collectively.

Roger Sherman of Connecticut believed that amendments were unnecessary and opposed interspersing them within the

main body of the Constitution because

that

would

leave the mis-

taken impression that the Framers had signed a document that in-

cluded provisions not of their composition.

members of lumped

the

at the

House thought

that the

He and some

other

amendments should be

end of the document, and they

also believed that

146

RIGHT TO KEEP AND BEAR ARMS

::

House should not

the matter of form was so trifling that the

squander

its

Sherman

therefore urged that the

pended

time debating the placement of the amendments.

supplement

as a

Rights achieved

bear arms as the Second

Congress ation for

them

is

Amendment

of

ratified

by the

states.

dependable alternative, a professional army but

strict control.

to raise

Bill

also recognized that the states' neglect of their

militias required a

one kept under

Constitution— and thus the

to the

significant collective form, with the right to

its

The Framers

amendments should be ap-

Thus, the Constitution authorizes

and support military forces, though no appropri-

them may

last

more than two

assured because the president

Congress has not only responsibility military but also the

power

years, is

and

civil

control over

commander-in-chief and governance of the

for the

Congress pro-

to declare war. So, too.

vides for organizing, maintaining, and training the military, al-

though the ficers.

states retain control over the

appointment of

its

of-

Madison expressed the Framers' view when he supported

national control over state militias if effective,

on the theory

that only they,

could make possible the avoidance of a standing army

or minimize

its size.

George Mason agreed. Like

argued that to keep the army small the

state militias

Jefferson, he

should be well

prepared for pubhc defense under centralized federal authority.

Thus, Congress was empowered the laws of the

Soon

after

Union

to

summon

the militias "to put

in execution."

Madison had recommended

constitutional

amend-

ments, Tench Coxe, a Federalist partisan, published an influential essay on proposed

amendments

to the Constitution. In the leading

Philadelphia newspaper, he wrote that because

be tyrannical and the military might abuse rights

would be

helpful.

Coxe knew

that

its

civil rulers

powers, a

might bill

of

one of Madison's recom-

mendations was an amendment that authorized the right of the people to keep and bear "their private arms," and Coxe argued that the

"powers of the sword are

in the

hands of the yeomanry of

RIGHT TO KEEP AND BEAR ARMS

147

whom he identified as the members of the state miUtias.

America,"

"Who

::

and responded that they were

are the mihtia?" he asked,

"ourselves."

The sword was

or federal, but "in the

required to

not in the hands of government, state

hands of the people." All adult males were

own arms and

serve in the militia, which, as Elbridge

Gerry of Massachusetts

stated, existed "to prevent the establish-

ment of a standing army,

the bane of liberty."

Tench Coxe's reference to "the people" did not refer to them a collective sense or as society at large.

mean

commonly used

to

above, the First

Amendment

"The people" was

a

in

term

the right of individuals, and as indicated protects the right of the people to

freedom of expression and the Fourth protects the right of the people to be free from unreasonable searches and seizures; and

each clearly refers to a personal right.

Newspapers throughout the nation reprinted Coxe's Sending

copy of it

a

to

essay.

Madison, Coxe wrote that he thought

remarks might have a good

effect

his

on public opinion. Madison, who

agreed, expressed indebtedness for Coxe's cooperation. Federalists

advanced arguments

rights

was necessary— that

government could

is,

it

new government would

consisting of a

of rights.

bill

present to

The

Anti-

apprehensive because the Constitution provided

felt

for a standing army, causing

them

to

should stipulate that every

Patrick

of

Constitution should not be ratified unless

amendments

Federalists

bill

so long as the people were armed, no

advocates pledged that the

the states

to

Coxe's in part to claim that no

limit their freedom. Anti-Federalists neverthe-

less insisted that the its

like

Henry argued

demand

man had

that

one amendment

a right to be

in the Virginia ratifying

armed.

convention that the

only defense of the people against an army controlled by Congress

was the mihtia. "The great object," he thundered,

man be armed.

.

.

.

Every one who

is

able

may have

"is that

a gun."

every

Henry

appeared not to be arguing here for the right of individuals to

be armed for their own protection, because in context his words

148

showed

that he

less, as a

RIGHT TO KEEP AND BEAR ARMS

::

was thinking of members of the mihtia. Neverthe-

newspaper

in Charleston,

well-regulated militia

is

"composed of the

husbandman, who take up arms viduals, their rights as

George Mason

freeholders, citizen

a

and

to preserve their property as indi-

freemen" (emphasis added).

at the Virginia ratifying

his listeners that the British as

South CaroHna, observed,

had sought

to

convention reminded

disarm the Americans

"an effectual way to enslave them," and to this end had ne-

glected the militias.

Coxe and Henry,

"Who are the militia.^"

replied,

he asked and,

like

"They consist now of the whole

In response to complaints such as those

made by

both

people."

the Pennsylvania

minority, Federalist partisans of ratification insisted that under the

proposed Constitution the people could not be disarmed.

Of the tion, four

states that

to the Constitu-

urged an amendment guaranteeing the right of individ-

New

uals to bear arms.

the

recommended amendments

first to

make

that

Hampshire, the ninth

recommendation with

state to ratify,

was

a proposal that said:

"Congress shall never disarm any Citizen, unless such as are or have been in Actual Rebellion."

New

York followed

suit

with the

proposition that the people "have a right to keep and bear arms"

and that

a well-regulated mihtia,

capable of bearing arms"

Two

other states,

Rhode

is

including "the body of the people

the "proper" defense of a free state.

Island and

North Carolina, used

similar

language in recommending amendments to the Constitution.

The second amendment ment from

in effect prevents the national

destroying the militias of the states

personal right that

is

govern-

and preserves

a

centuries old. Joel Barlow, the Connecticut

wit and writer, in 1792 sagely declared that a tyrant disarms his subjects to "degrade and oppress" them,

armed

"palsies the

knowing

that to be un-

hand and brutalizes the mind," with the

that people "lose the

result

power of protecting themselves." But arms

privately held can be dangerous to society.

Washington once reminded Congress

President George

that "a free people ought

RIGHT TO KEEP AND BEAR ARMS not only be armed but disciplined." his time

had

to

He meant

be under military authority

used phrase, should be "a well-regulated" longer depend on militias, a fact that in right to keep

the

195 1, in Dennis

Congress

armed

rebellion

respects

An armed

makes the

public

is

not

it is

said in

within the power of

government of the United States from

a proposition

is

the frequently

However, we no

As the Supreme Court

United States: "That

v.

to protect the

or, in

government responsible and

a democratic

sensitive to the needs of the people.

that the militias of

militia.

some

and bear arms anachronistic.

means of keeping

149

::

which requires

little

discussion."

Whatever hypothetical value there might be, the Court

said, in the

notion that a "right" against revolution exists against dictatorial

government

"is

without force where the existing structure of the

government provides for peaceful and orderly change." The Court added,

"We

reject

any principle of government helplessness in the

face of preparations for revolution, logical conclusion,

The

must lead

right to keep

which

principle, carried to

its

to anarchy."

and bear arms

still

themselves against law breakers, but

posing a legitimate government.

enables citizens to protect

it is

The

a feckless

means of op-

so-called militias of today

that consist of small private armies of self-styled superpatriots are entitled to their firearms but deceive themselves in thinking they

can withstand the United States Army. as they interpret

origins of the

it

The Second Amendment

feeds their dangerous illusions.

amendment show

Even

that the right to keep

so,

and bear

arms has an illustrious history connected with freedom even a right that

must be regulated.

the

if it is

CHAPTER SEVEN

The Fourth Amendment, Search and Seizure

EFORE

the American Revolution, the right to be se-

cure against unreasonable searches and seizures had slight existence. British policies assaulted the privacy

of dwellings and places of business, particularly royal revenues were at stake.

The

right to be taxed only

when

by the

consent of representatives of one's choice was the great right

whose

violation helped cause the Revolution. British attempts to

enforce tax measures by general searches also occasioned deeply felt

resentments that damaged relations between England and

the American colonies and provoked anxious concerns that later

sought expression in the Fourth Amendment. That amendment repudiates general warrants by recognizing a "right of the people to be secured in their persons, houses, papers,

unreasonable searches and seizures."

and

effects, against

Any warrant

that

is

vague

about the persons, places, or things to be searched violates the specificity required

by the command of the amendment that war-

rants shall issue only affirmation,

"upon probable

cause, supported by oath or

and particularly describing the place

and the persons or things

to be searched,

to be seized."

The Fourth Amendment would 150

not have been possible but for

FOURTH AMENDMENT British legal theory,

which Britons of North America inherited and

cherished as their own.

The Fourth Amendment emerged not only

from the American Revolution;

it

was a constitutional embodiment

Magna

of the extraordinary coupling of fiction that "a

man's house

his castle."

is

resulted from embellishments ically

151

::

on the

Carta to the appealing

That

the

is,

insistence,

amendment

which was rhetor-

compelling, though historically without foundation, that

government cannot encroach on the private premises of the individual subject. said but

What mattered was

what people thought

mean. What

also

it

Magna Carta actually

not what

said or, rather,

what

it

had come

to

mattered was the inspiring imagery that swelled

the sense of freedom in the ordinary subject. William Pitt ex-

pressed claimed:

when he de-

best in a speech in Parliament in 1763

it

"The

poorest

man

the forces of the Crown.

It

may, in his cottage, bid defiance to

may be

frail; its

roof

may

all

shake; the

wind may blow through it; the storm may enter; the rain may enter; but the King of England

may not enter;

all

the threshold of the ruined tenement."

home

his force dares not cross

The maxim

about a man's

goes back at least to the early sixteenth century, and

repeated with such frequency that

The

first

secured by

it

became

it

was

a cHche.

person to link the privacy of one's

home

to a right

Magna Carta seems to have been Robert Beale,

clerk of

the Privy Council, in 1589. Beale asked rhetorically what had

happened

to

Chapter 39 of the great charter when agents of a

prerogative court, acting under

mens

its

warrant, could "enter into

houses, break of their chests and chambers" and carry off as

evidence whatever they pleased. That Beale's statement was historically

unsound

a feudal

document, which protected the barons, and converted

is

unimportant compared

to the fact that

he took it

into a constitution for everyone. Creative glosses like Beale's

would make Magna Carta jecting law.

all

a talismanic

symbol of freedom, sub-

authority, including the royal prerogative, to the rule of

Construing Chapter 39 to be a ban on general warrants helped

152

make

a

myth

that

FOURTH AMENDMENT

::

would transform American thinking about

pri-

vacy rights against government.

One of

the most strategically significant places for the belief

that a legal writ authorizing a legitimate search as to persons

must be

and places was Sir Edward Coke's

Laws of England. From

specific

Institutes

of the

the Puritans of Massachusetts Bay,

studied Coke, to Jefferson,

who

who

admiringly said of him that "a

sounder Whig never wrote" nor one more learned "in the ortho-

dox doctrines of British

on English

the foremost authority

mated the

belief that

liberties,"

Magna

Americans regarded Coke law.

Coke's authority

as

legiti-

Carta outlawed general warrants

based on mere surmise. Sir

Matthew Hale, another seventeenth-century

legal

lumin-

analyzed the problem of search and seizure more systemati-

ary,

cally in his

book History of Pleas of the Crown. Hale

warrants that failed to

name

criticized

the persons sought for crime or the

places to be searched for evidence of theft.

He even

laid a basis for

the concept of probable cause by maintaining that the person

seeking a warrant should be examined judicially under oath so that the magistrate could determine whether he had grounds for his suspicions. Hale also asserted that an officer

search and arrest was liable to a Beale, Coke,

and Hale did not stand

alone.

rhetorical tradition against general searches,

Law William Hawkins and

who made an

illegal

civil suit for false arrest.

They

invented a

which Serjeant-at-

Sir William Blackstone continued.

But

the rhetoric was empty; the tradition had almost no practical effect.

Beale's views leaked out through officially licensed publica-

tions that sought to refute him, but he did not dare publish his

manuscript. Coke's

own

report of Semayne's Case of 1604 refuted

the accuracy of the propositions that he advanced in his Institutes, for in that case the court

had held that although

a

man's house

is

his castle, his privacy did not extend to his guests or to "cases

where the King the

maxim

is

a party."

Coke's

represented only the

own

experience shows best that

frailest aspiration,

not the law in

FOURTH AMENDMENT cases involving the crown. In 1634,

minous

153

when Coke

home and

Council's agents searched his tious papers

::

lay dying, the Privy

law chambers for sedi-

and seized not only the manuscripts of

his volu-

legal writings but also his valuables, including

keys, jewelry, his will,

and a poem addressed

book was not even published

money,

to his children. Hale's

until sixty years after his death. Pitt

spoke in a losing cause; ParHament enacted the excise

bill

whose

passage he so eloquently opposed as dangerous to the liberty of the subject. Blackstone

made only

a passing

remark against general

searches; his target, rather, was the general arrest warrant.

In

fact,

English law was honeycombed with parliamentary

enactments that relied on warrantless general searches and on general warrants for their enforcement, including hue and cry

methods, sumptuary theft, at

legislation,

and measures aimed

at

punishing

governing crafts and guilds, bankruptcy, and military

recruitment, as well as measures preventing illegal imports,

man-

ufactures, poaching, counterfeiting, unlicensed printing, seditious

or heretical publications, and

nonpayment of

tended to hearths and stoves, to

such consumer goods as to foreign goods.

The

salt,

king's

taxes.

Taxes ex-

estates, to intoxicating drinks, to

candles, soap, glass,

customs

office

and

and papers, and

his

exchequer de-

pended on both the general warrant and warrantless searches as ordinary

means of

collecting royal revenues,

and Parliament

passed dozens of pieces of legislation to provide the taxes and authorize general searches. Promiscuously broad warrants allowed officers to search

wherever they wanted and to seize whatever they

wanted, with few exceptions.

An

eighteenth-century collection of

warrants contains 108 authorized by secretaries of state or by the

King's Bench for the period 1700- 1763, eral warrants.

The frequency

all

but two of them gen-

in the use of general warrants in-

creased substantially as time went by.

General searches pervaded colonial law as well as Great Britain's.

Colonial legislation on search and seizure either copied Brit-

ain's or derived

from it;

until 1750, all

handbooks

for justices of the

154

peace,

who

::

FOURTH AMENDMENT

issued warrants, contained or described only general

Cuddihy

warrants. William

asserts that a "colonial

epidemic of

general searches" existed— indeed, that until the 1760s, "a man's

house was even

less

of a legal castle in America than in England,"

because the Americans, exceptions.

As

when adapting English models, ignored

a result, warrants in

enforcers every discretion.

emerge from colonial precedents; or, as

Cuddihy

ment reversed

states,

"The

America tended

to give their

The Fourth Amendment would rather,

it

not

would repudiate them;

ideas comprising the Fourth

Amend-

rather than formalized colonial precedents. Rea-

sonable search and seizure in colonial America closely approxi-

mated whatever the searcher thought reasonable." Officers or their informants merely reported that an infraction

of the law had occurred or that they had a suspicion, not that a

was suspected or that

particular person

a particular place

con-

tained evidence of a crime; on the basis of such an assertion, a

magistrate issued a warrant. Neither custom, judicial precedent,

nor statutory law provided that he should interrogate the seeker of the warrant to determine the credibility of the suspicion or of his

informant.

The magistrate made no independent determination of

own whether

his

a basis existed for the warrant other than the

assertion that a crime had occurred or that a basis existed for

some

suspicion. Magistrates had an obligation to provide the warrant,

rather than deny one or limit one to a particular person or place that

was suspected. Probable cause

modern sense did not exist;

in a

not even a reasonable basis for suspicion existed. Although an officer seeking a

ticular

warrant more than

person or place

if

known

to

likely

him

would designate

in advance,

a par-

he need not do

so to get a warrant.

Colonial documents contain no suggestion of a right against general warrants.

Recommendations

for

them were common

in

the manuals that had been published in the colonies before 1763 for the use of justices of the peace.

American

legal writers

even

FOURTH AMENDMENT

155

::

relied

on the great authority of Coke and Hale

officer

could forcibly enter a person's house.

proof that an

as

In 1756, however, the province of Massachusetts enacted extraordinary legislation that reversed the tide of practice by aban-

doning general warrants elements of particularity.

shed in Massachusetts

Cuddihy

states,

of warrants founded on some

in favor

The

legislation of

1756 marked a water-

indeed in Anglo-American

law,

law.

beginning in 1756 "Massachusetts invented the

statutory prototypes of the Fourth tion resulted mainly

from

a

vincial legislation of 1754.

Amendment." The new legisla-

vehement public clamor against pro-

The

excise act of that year autho-

on the

rized tax collectors to interrogate any subject, under oath,

amount of rum, wine, and other private premises in the past year

phleteers

condemned

spirits

he had consumed

and taxed

it

Hancock and Samuel Adams,

by the gallon. Pam-

whose pupils had included John

called

"the most pernicious attack

it

English Liberty that was ever attempted,"

the Brattle

Church imagined

tion, requiring

that he

prisoned

saw a

and the minister of

revival of the Inquisi-

people to incriminate themselves.

The Monster of Monsters (the excise legislature that

it

its seller

in his

the measure in hyperbolic language. John

Lovell, a Boston schoolmaster

upon

As

condemned

act), so

One pamphlet.

savagely attacked the

the tract as seditious

libel,

and im-

and the suspected author. That author warned

of the danger of the tax collector having power to break chains, doors, locks, and bolts, and invade

bedchambers and

In the torrent of tracts against excise, tion of

Magna

and of natural

The

it

was described

Carta, of the sanctity of one's

home

provincial impost laws,

which employed general war-

officers

who

tried to collect duties

mobs

threat-

on uncustomed

imports— foreign goods on which the duties had not

The

as a viola-

as his castle,

rights.

rants for enforcement, provoked such animosity that

ened impost

winecellars.

yet

been paid.

hostility for general searches intensified as the result

of two

156

::

FOURTH AMENDMENT

Other practices. In 1755 the royal governor of Massachusetts

is-

sued ex officio writs of assistance, a type of general warrant that

became enormously

And,

controversial.

pressment gangs, operating under

since 1745, British im-

a general

warrant provided by

the governor, had been invading private premises as well as taverns

and

inns, seeking to

kidnap able-bodied

men

for service in the

Royal Navy.

Enforcement of the excise and impost

acts

by general searches,

the introduction into the province of writs of assistance, and the

general warrants for impressment gangs produced a hullabaloo that the enactments of 1756 sought to allay

The

excise

and impost

acts of that year required an element of probable cause only in the

sense that the informant had the obligation to swear on oath that

he knew that an infraction of the law had occurred specified.

The

no discretion

justices of the peace, to

deny

who

issued the warrants, had

a petition for one; magistrates

independent judgment whether adequate grounds of the warrant existed.

he had "just cause"

in the place

The

for his

made no

for the issuance

informant, however, had to swear that

sworn statement. The

officer

conducted

his search during the daytime, only in the designated location,

and

could seize only things or objects regulated by the statute that he enforced by his search and seizure. thorized warrants of arrest for short,"

Cuddihy

states,

The

named

statutes of 1756 also au-

individuals.

"The

British, in

"introduced writs of assistance into Mas-

sachusetts just as the colony itself was rejecting the legal assumptions

on which they were based."

The writ of assistance was a type of general warrant deriving its name from ity to if

the fact that a crown

command

necessary, of

official

possessed the legal author-

the assistance of a peace officer and the assistance, all

nearby subjects, in his execution of the writ.

Parliament authorized writs of assistance by an act of 1662 that

empowered official

the Court of Exchequer to issue a writ to a customs

who, with the assistance of

a constable, could enter

"any

FOURTH AMENDMENT House, shop,

Cellar,

Case of Resistance

Warehouse or

157

::

Room

or other Place, and in

open Doors, Chests, Trunks and other

to break

packages, there to seize" any uncustomed goods. issued, lasted for the a long-term

stituted

The

writ,

once

of the sovereign, and therefore con-

life

hunting license for customs

officers

on

the lookout for smugglers and articles imported in violation of the

customs

laws. In

1696 Parliament extended the act of 1662 to the

Court of Exchequer did not operate

colonies, but because the

America, no way existed to enforce

in

Massachusetts, however,

it.

had extended the jurisdiction of its own high court to include the jurisdiction of the

Court of Exchequer, thus opening the pos-

sibihty of enforcement in that colony

and

in

New

Hampshire,

which copied Massachusetts.

When George

II died,

the high court of Massachusetts, pre-

sided over by Chief Justice

Thomas Hutchinson, heard

Case, a petition by a customs officer for a

James

Otis, Jr., appeared, he said,

new

must acknowledge

writ of assistance.

on behalf of the inhabitants

of Boston to oppose issuance of the writ. historian

Paxton's

that Otis's

Any

fastidious legal

argument compounded

mistakes and misinterpretations. In effect, he reconstructed the

fragmentary evidence buttressing the rhetorical tradition against general searches, and he advocated that any warrant other than a

one violated the British constitution. That Otis distorted

specific

history

is

pedantic; he was

nique, which

new

making

Coke himself had

history.

By an

old British tech-

practiced, Otis sought the creation

rights while asserting strenuously that they

had existed

nearly from time immemorial. His speech electrified

young John

of

Adams, who was present old

man,

Fire!

.

.

in the

fifty-six years later, .

Then and

courtroom and

took notes.

he declared, "Otis was a flame of

there was the

first

scene of the

Opposition to the arbitrary Claims of Great Britain. there the child Independance

As an

[sic]

the Declaration of Independence,

was born."

first

Act of

Then and

On the night before

Adams asserted that he consider

158

"the

FOURTH AMENDMENT

::

Argument concerning Writs of Assistance ...

mencement of the Controversy, between Great ica."

Adams's reaction

straight

to Otis's

speech

Hne of progression runs from

Adams's framing of Article

is

as the

Britain and

ComAmer-

so important because a

Otis's

argument

in 1761 to

XIV of the Massachusetts Declaration

of Rights of 1780 to Madison's introduction of the proposal that

became the Fourth Amendment.

We have Adams's brief notes of Otis's speech made at the time Adams not long after.

of the speech and the fuller version made by

The

about twenty minutes to be read by com-

fuller version takes

parison with the original, which took Otis four to deliver.

He denounced

five

hours to

the writ of assistance as an instrument of

"slavery," of "villainy," of "arbitrary power, the

most destructive

of English liberty and [of] the fundamental principles of the constitution."

cost

The

writ

reminded him of the kind of power

one English king

his

officers,

writ

and

had

head and another his throne. The only

was

legal writ, Otis asserted,

that

a "special

warrant directed to specific

to search certain houses, &c. especially set forth in the

may be

granted

.

.

.

upon oath made

... by the person,

who

asks [for the warrant], that he suspects such goods to be concealed in those very places

he desires to search." In the recent past, Otis

alleged, only special warrants existed, authorizing search of partic-

ularly

named

houses, and they were issued only after the complai-

nant had taken an oath to support his suspicion; "special warrants only are legal," he concluded.

He condemned

writs of assistance

because they were perpetual, universal (addressed to every

officer

and subject in the realm), and allowed anyone to conduct a search in violation of the essential principle of English liberty that a

peaceable man's house officer to enter private

and even

is

his castle.

A

homes when he

to break locks to enter,

was

writ that allowed a customs pleased,

on bare suspicion,

An

act of Parliament

void.

authorizing such writs was void because constitution,

and courts should not

it

violated the British

issue an unconstitutional writ.

FOURTH AMENDMENT Otis lost his case.

The

::

159

writs issued, but

Americans found

a

cause and a constitutional argument. In 1762 the Massachusetts legislature passed a bill that specific as the warrants

excise

and impost

acts,

would have required

all

writs to be as

used by provincial officers to enforce the but the royal governor vetoed the

bill.

Thereafter, crowds frequently prevented enforcement or "res-

cued" goods seized by customs agents. In a 1766 case merchant, believing that in "Whig Boston law," used force to barricade his

home,

might

posse comitatus

doned

Boston

Whig furies made Whig crowd gathered. Of-

as a

prudently decided that caUing on bystanders to

ficers

a

result in a loss of Hfe— their

assist as a

own— and aban-

efforts to enforce the writ. After a rescue in

Falmouth

(Portland), Maine, the governor conceded that public opposition

had

effectively paralyzed the use of writs to

seizures.

conduct searches and

DeGrey of

Attorney General William

Britain decided

them

to

from the Court of Exchequer, whose writ did not run

in

that the act of Parliament that authorized the writ allowed issue only

America. In London,

damaged the

far

more than DeGrey's

technical opinion

principle of general warrants.

John Wilkes's studied the forty-fifth

insults of the king's speech in 1763, in

number of his

sive retaliation

journal North Britain, provoked mas-

by the government. One of the

secretaries of state

issued general search warrants for the arrest of everyone con-

nected with North Britain, No. 45.

Crown

agents enforcing the

warrants had unfettered discretion to search, seize, and arrest any-

one

as they pleased.

They ransacked

printer's shops

and houses,

and arrested forty-nine persons, including Wilkes, a member of Parliament, his printer, publisher, and booksellers.

The

officers

seized his private papers for incriminating evidence after a thor-

ough

search; thousands of pages

and scores of books belonging

persons associated with him were also seized.

mons

to

The House of Com-

voted that North Britain, No. 45, was a seditious

libel

expelled Wilkes, and he was eventually convicted and jailed.

and

The

160

::

FOURTH AMENDMENT

government found, however,

that

since the time of John Lilburne,

it

had mounted

more than

a tiger;

no one

a century earher,

had

proved to be such a resourceful and pugnacious antagonist. Wilkes

had quickly

filed suits for trespass against

everyone, from flunky to

minister, connected with the warrant that

doing; others suits.

A legal

who had

had resulted

in his

un-

suffered searches and arrest filed similar

donnybrook ensued.

On

one hand, the government,

based on about two hundred informations, had engaged in mass arrests

dozen

and searches, and on the suits for trespass

and

other, the victims filed a couple of

false

became the subject of sensational confusing

trials.

imprisonment.

The Wilkes

case

controversies, angry tracts, and

Wilkes would emerge from his prosecution a pop-

ular idol, the personification of constitutional liberty to English-

men on both

sides of the Atlantic.

Although he focused mainly on

the dangers of general warrants and the seizures of private papers,

some of his supporters

also

championed freedom of the press and

the right against self-incrimination.

In the colonies, "Wilkes and Liberty" became a slogan that patriot leaders exploited in the service of American causes. In

New

York, for example, Alexander McDougall, a leader of the Sons of

Liberty

who had censured

posed

an American Wilkes and turned his imprisonment into a

as

theatrical triumph, as

number

had Wilkes, while

his supporters used the

45, the seditious issue of North Britain, as a

their cause. five

a bill to provision the king's troops,

On

symbol of

the forty-fifth day of the year, for example, forty-

Liberty Boys dined on forty-five pounds of beef from a forty-

five-month-old bull, drank forty-five toasts to liberty— liberty of the press, liberty from general warrants, liberty from compulsory self-accusation, liberty

dinner marched to the cheers. to

On

him by

damned

from seizure of private papers— and jail

to salute

McDougall with

after

forty-five

another festive liberty day, forty-five songs were sung

forty-five virgins, every

one of whom, according

Tory, was forty-five years old.

to

some

The Fourth Amendment,

FOURTH AMENDMENT as well as the First

and the

Fifth,

::

161

owes something

Unlike Paxton's Case, the Wilkes cases

cases.

American newspapers from Boston

The

of these cases, Huckle

first

suits for trespass

and

false

v.

Money, established the doc-

crown

officers are liable to

imprisonment resulting from

unlawful search. Chief Justice Charles Pratt said, the jury,

"To

the columns of

to Charleston.

trine, traceable at least to Hale, that

damage

filled

when charging

enter a man's house by virtue of a nameless warrant,

worse than the Spanish Inquisi-

in order to

procure evidence,

tion, a law

under which no Englishman would wish

hour."

The

excessive

is

hundred pounds

jury awarded three

sum for the deprivation of a journeyman

for six hours, but to

Wilkes

to the

in

to live

an

damages, an

printer's liberty

on appeal Pratt ruled that the small injury done

one of low rank meant nothing compared

to the "great point of

the law touching the liberty of the subject" invaded by a magistrate

of the king in an exercise of arbitrary power "violating

Magna

Carta, and attempting to destroy the liberty of the kingdom, by insisting

on the

legality of this general warrant." In Wilkes

(1763), Pratt presided over a similar trial

and engaged

v.

Wood

in similar

rhetoric ("totally subversive of the liberty of the subject"); the jury

awarded damages of a thousand pounds

to Wilkes,

who later got an

award of four thousand pounds against the secretary of state who

had issued the warrant. In

fact,

the government paid a total of

about one hundred thousand pounds in costs and judgments. In one of the Wilkes cases, the government appealed to gland's highest criminal court, the King's Bench, and field,

En-

Lord Mans-

the chief justice, agreed that the warrants in the Wilkes

cases were illegal.

Although the

common

law,

he observed, autho-

rized arrests without warrant and Parliament had often authorized

searches and arrests on the basis of general warrants, in this case

no circumstance existed and no

justifying warrantless searches or arrests

act of Parliament

was involved. Accordingly,

a secretarial

warrant, based on executive authority, leaving discretion to the

162

endorsing trate

officer, "is

ought

::

FOURTH AMENDMENT

not

to judge;

fit."

Mansfield thought that the "magis-

and should give certain directions

to the

officer"— a foundation for what later emerged as probable cause.

The

victories of the Wilkesites

encouraged other victims of

secretarial warrants in seditious libel cases to bring suits for

ages.

The most important of

those cases, Entick

v.

(1765), resulted in an opinion by Chief Justice Pratt,

Camden, which

the

Supreme Court of

dam-

Carrington

now Lord

the United States would

describe as "one of the landmarks of English liberty." Victory for

Camden

the government,

declared,

would open the

secret cabinets

of every subject whenever the secretary of state suspected some-

one of seditious

libel.

law required no one to incriminate

would be "cruel and unjust"

himself, for that guilty alike,

The

"and

it

allowed upon the same principle." rests

to the innocent

should seem, that search for evidence

Camden

is

and dis-

held that neither ar-

nor general warrants could issue on executive direction, and

he implied that evidence seized on the authority of such a warrant could not be used without violating the right against selfincrimination. Similarly, the

Supreme Court

the Fourth and Fifth

Amendments have an

and "throw great

on each other."

light

In 1764 and 1765 the

House of Commons

in

irresolutely debated

whether general warrants should be regarded 1766

it

repeated the debate.

The upshot was

1886 ruled that

"intimate relation"

as illegal,

and

the passage of three

resolutions, not statutes, that revealed a victory for the

narrow

position of Mansfield rather than the broader one of Camden.

Commons condemned rests

general warrants in

in

all

The

cases involving ar-

but condemned paper searches only in cases where the ex-

ecutive branch searched in connection with the crime of seditious libel.

The

Secretarial search warrants in treason cases

resolutions of 1766

rantless searches

searches

left in

remained

place the elaborate system of war-

when authorized by Parliament and of

when undergirded by

legal.

statutory authority.

general

The House

of

FOURTH AMENDMENT Lords rejected

a proposal

from the

::

163

Commons

would have

that

restricted general search warrants to cases of treason

and

felony.

Thus, the reforms resulting from the

and

parlia-

mentary resolves of 1763

to

judicial decisions

1766 conformed

to the

prime directive

of EngHsh's law of search and seizure: even promiscuously general searches did not violate the liberty of the subject or infringe the

maxim about

a

man's home so long as Parliament had

laid

down

the law.

On

the other hand, the Wilkes cases and the parliamentary

debates unleashed a

of rhetoric that went far beyond the reality

lot

of actual judicial holdings and legislative resolves. Americans were practiced in

making

a highly selective use of authorities

sources that suited their needs. that

spokesman

They could even turn

for parliamentary

and other

Blackstone,

supremacy, into an advocate of

constitutional restraints. In Britain,

EngHshmen often spoke thun-

derously but thrashed about with a

frail stick; in

America they

threw the stick away, contenting themselves with the thunder.

They found

a lot of

Candor,"

of

all

author of a

little

it

whom

in Pitt,

they

Camden, Wilkes, and

knew

book of 1764, "on

well.

in

"Father of

Father of Candor was the

libels,

warrants, and the seizure

of papers," which had gone through seven editions by 1771.

condemned

He

general warrants as "excruciating torture," and he

urged that search warrants should be specific

as to persons, places,

and things and should be sworn on oath. That was the

sort of thing

Americans could exploit when confronted by Parliament's determination to impose writs of assistance on the colonies.

Twenty

years after the

Townshend Acts of

son, speaking in the First Congress

mending the amendments

1767,

James Madi-

on the occasion of recom-

to the Constitution that

became the

Bill

of Rights, recalled that the legislative power constituted a great

danger to

liberty; in Britain,

he noted, "they have gone no farther

than to raise a barrier against the power of the Crown; the power of the Legislature

is

left

altogether indefinite." Notwithstanding

164

::

FOURTH AMENDMENT

grandiose rhetoric against general warrants, Parliament in 1767

superseded to

its

act of 1696,

which had extended writs of assistance

America without providing

under the

seal

a

mechanism

of the Court of Exchequer.

for granting

them

The Townshend

Acts

provided that the highest court in each colony possessed authority to issue writs of assistance to

customs

officers to search

where they

pleaded for prohibited or uncustomed goods and to seize them.

The Townshend

Acts, therefore,

over writs of assistance to

been

all

expanded the controversy

of the thirteen colonies.

a local controversy, centering

What had

mainly on Boston, spread

continentwide. Only the two colonies, Massachusetts and

Hampshire, that had previously experienced the to issue as not.

writs,

New

continued

them, although the mobs "liberated" seized goods as often

Elsewhere the provincial high courts

The New York

or dechned the writ.

stalled,

compromised,

court issued the writ but

deviated from the exact language authorized by Parliament, with the result that the customs officers refused to execute the deviant writ and sought one in the correct form.

It

was not forthcoming;

indeed, applications kept getting lost or mislaid. In 1773, five years after the first application, the

New York court held that "it did not

appear to them that such Writs according to the form

now

pro-

duced are warranted by law and therefore they could not grant the motion."

Something cut,

like that

Chief Justice

happened

in several colonies. In

Connecti-

Jonathan Trumbull and Judge Roger Sherman

refused to be rushed into making a decision on the application for a writ.

Trumbull remarked

were not clear "the thing was

privately that he

and

his associates

in itself constitutional."

Chief Justice

William Allen of Pennsylvania was more forthcoming. In 1768 he declared that he had no legal authority to issue the writ. Customs officials

sent Allen's statement to Attorney General William

Grey

London

in

for his opinion.

the error of his ways

if

He

De-

thought that Allen would see

confronted by a copy of the writ, a copy of

the act of Parliament, and a copy of the opinion of England's

FOURTH AMENDMENT

On

attorney general.

English legal

artillery,

lar [not general] writs

a

new

::

165

application for the writ backed by

Allen replied that he would grant "particu-

whenever they are applied

for

customs agent must swear he knew or had reason

on oath." The to believe that

prohibited or uncustomed goods were located in a particular place. Allen's groping toward a concept of probable cause as well as

became

specific warrants

sisted to

clearer as

customs

officials

vainly per-

engage his cooperation.

In South Carolina a judge, explaining his court's refusal to issue the writ, stated that sarily

upon the

it

"trenched too severely and unneces-

safety of the subject secured

Magna

by

After five years of persistence, however, the customs writ of assistance in South CaroHna. In Georgia,

Charta."

officials

got a

where the judges

declined to issue the writ, they said they would authorize a search

warrant for

a specific

occasion

if

supported by an

Virginia issued writs of assistance in 1769 but

affidavit.

undermined the

process by annexing a degree of specificity obnoxious to the cus-

toms

agent had to swear an oath in support of his suspi-

office. Its

cion and could obtain a writ only for a special occasion and for a limited time.

The

Virginia judges alleged that the writ sought by

the customs office under the tional" because his

own

Townshend Acts was "unconstitu-

allowed the officer "to act under

it

arbitrary discretion."

The customs

office

it

according to

appealed to En-

gland for support against the Virginia court. Attorney General

DeGrey had fective

to

means"

assistance.

He

acknowledge that he knew of "no direct and to

compel

a provincial court to

ef-

award a writ of

asserted that judges might be impeached for con-

tumacious refusal to execute an act of Parliament, but he did not

know how

to

proceed in such a

Virginia's judges

case.

He

preferred to believe that

had acted out of a mistaken understanding of the

law. Virginia's court,

however, remained contumacious.

Between 1761 and 1776

a glacial drift in

American

legal opin-

ion can be discerned toward increased reliance on specific warrants.

Law

books, including manuals of the justices of the peace.

166

began

to

recommend

ever, relied

practice.

Letters

::

FOURTH AMENDMENT

specific warrants in

on general warrants,

American rhetoric and

as did

some

cases; most,

American judges

reality diverged.

how-

in actual

John Dickinson's

of a Pennsylvania Farmer, which circulated in every colony,

censured general warrants and repeated the cliche about a man's

home

being his

castle;

but Dickinson did not

warrants in their place or

condemn any

Americans never spoke of a right understood the concept and,

recommend

specific

warrantless searches.

to privacy as such, although they

like their British counterparts, ex-

pressed outrage over the possibility that customs agents might

"break the rights of domicil," "ransack houses," and "enter private cabinets" or "secret repositories."

The

best

known of such

re-

marks, which received considerable publicity in the colonies, was that of the

Boston

Town Meeting of 1772, which

Thus our houses and even our bed chambers, ransacked, our boxes chests

dered by wretches,

whom

complained: are exposed to be

& trunks broke open ravaged and plun-

no prudent man would venture

to

em-

ploy even as menial servants; whenever they are pleased to say they suspect there are in the house wares

&c for which the dutys have not

been paid. Flagrant instances of the wanton exercise of this power, have frequently happened in

we

are cut off

this

and other seaport Towns. By

from that domestick security which renders the

this lives

of the most unhappy in some measure agreeable. Those Officers

may under

colour of law and the cloak of a general warrant break

thro' the sacred rights of the Domicil, ransack their securities, carry off their property,

mens

and with

houses, destroy little

danger to

themselves commit the most horred murders.

In

all

the American rhetoric, only one writer seems to have

urged special warrants warrants.

Some

parliamentary blies.

in place

of warrantless searches and general

writers revealed that their objection lay against a

empowerment

rather than one by their

General searches continued

own assem-

in the colonies as the prevailing

standard, not the specific warrants used in Massachusetts.

Nev-

FOURTH AMENDMENT some

ertheless,

rants and even used

The

became more

colonies

167

::

familiar with specific war-

them in various kinds of cases. Cuddihy states:

failure of colonial legislatures

and courts to abandon general

searches for domestic consumption locates the "American Revolution Against Writs of Assistance" in clearer perspective. Appeals to

Magna

Carta notwithstanding, the typical searches actually autho-

rized by judges and legislators in the colonies had remained as

general as those in the writs of assistance rejected by local judiciaries

and

intellectuals.

Damning such

searches under British auspices

was one thing; renouncing them oneself was another matter. In Connecticut, where judicial resistance to those writs was most ex-

treme in 1769, the

local

code of that year included an impost en-

forced by search warrants strongly resembling the writs.

conclusion applied equally to Pennsylvania.

Had

The same

Allen, Trumbull,

or any of the Connecticut newspaper essayists wished to attack

general searches

on principle

alone, they

need have looked no fur-

ther than Pennsylvania and Connecticut, for local session laws and judicial search warrants

had read

the histories of those colonies.

from

a foreign quarter

civil libertarian threat

like writs

of assistance throughout

Only when those searches loomed

and threatened

political

autonomy was the

posed by them announced.

In sum, one need only add that Otis's extraordinary forensic effort

of 1 76 1 on behalf of specific warrants, which a Boston newspaper printed in 1773, bore scarce fruit elsewhere, at least not until well after the Revolution.

The Declaration of Independence, however, spurred the definition of American ideals.

Although that document, which itemized

the king's perfidies, failed to say anything about search and sei-

zure or even about general warrants, the

first state

gaged

in the

and the

inspired the

constitutions. In the midst of war,

most important,

achievements in history, tions

it

first bills

Americans en-

and dynamic constitutional

creative,

among them

of rights against

making of

the

all

first

written constitu-

branches of government.

Their provisions on search and seizure are significant because they

168

distilled the best

benchmarks

to

::

FOURTH AMENDMENT

American thinking on the

subject, constituted

show the standard by which

practice should be

measured, and provided models for the Fourth Amendment.

and most

Virginia, the oldest, largest, states, anticipated the

influential of the

Declaration of Rights on June 12, 1776, and completed tution before the

new

Declaration of Independence by adopting a

month ended.

Article

X

its

consti-

of the Declaration of

Rights provided: "That general warrants, whereby any officer or

messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not

named, or whose offence

is

not particularly described and sup-

ported by evidence, are grievous and oppressive, and ought not to

be granted." Obviously this provision

the direction of specific warrants.

is

a substantial step in

Its force is

weakened by the

wishy-washy climax: certain warrants are grievous, not

and

illegal,

"ought" not be granted, but the language imposes no prohibition against them.

The concept

of probable cause

is

stunted with re-

spect to searches but considerably broader with respect to arrests.

The fact

search

may be conducted, presumably under

warrant,

if

the

of a crime has been established, though no need exists to show

a connection between the crime and the place to be searched, and

there

is

no reference

to a

need

for specificity with respect to the

things to be seized. Moreover, the warrant need not be based on a

sworn statement. Probable cause must be shown involvement of the persons to be arrested; suspicion

As the

is

far

for the criminal

more than mere

required for an arrest.

first

search and seizure provision in any American con-

stitution, Virginia's

had egregious deficiencies

as well as pioneer-

ing attainments. That the attainments might have been better is

evident from the fact that in a committee draft of

May

property to be seized had to be "particularly described." not

know why

know

that clause

was omitted

in the final draft.

still

27, the

We We

do do

that the provision could have been far worse or altogether

FOURTH AMENDMENT nonexistent.

169

::

George Mason, who provided the

original draft of

the Declaration of Rights, had omitted a search and seizure provision,

and Thomas Jefferson's draft of a

one, too.

Edmund Randolph may

his state's search

membrance of the

state constitution

omitted

have been right in recalling that

and seizure provision 'Vas dictated by the seizure of Wilkes's paper under a warrant

a Secretary of State,"

re-

from

but Virginia went well beyond a condemna-

tion of general warrants issued

under executive authority.

In August 1776 Pennsylvania adopted

its

extraordinary consti-

tution preceded by a Declaration of Rights that was influenced by

Virginia yet original in major respects. Its tenth article provided:

"That the people have

a right to hold themselves, their houses,

papers, possession free from search and seizure, and therefore

warrants without oaths or affirmations cient foundation for them,

may be commanded

made, affording

first

and whereby any

officer or

a suffi-

messenger

or required to search suspected places, or to

seize any person or persons, his or their property, not particularly

described, are contrary to that right, and ought not to be granted."

That provision

is

memorable because

it

recognizes a right of the

people in affirmative terms rather than merely declaring against

And

general warrants or grievous searches. is

broad, promiscuously so; there

right to be free

from search and

rather, that searches

is

the right of the people

no such thing

seizure.

The

and seizures made without

"ought"— that weak word again— not

to

as

an absolute

provision meant, specific warrants

be granted. Even that

proposition had to be subject to exceptions, because no evidence suggests that Pennsylvania intended to depart from

exceptions to the need for a warrant

if a

common-law

peace officer was in hot

pursuit of a felon or had reason to believe that the felon might

escape

if

the officer called time out to obtain a warrant. Exigent

circumstances of various kinds always allowed warrantless arrests

and even warrantless searches and seizures of evidence of crime, of weapons, or of contraband.

The

Pennsylvania provision had the

170

::

FOURTH AMENDMENT

virtue of including a requirement for specificity with respect to the

things seized

when

a

warrant was attainable.

require that the warrant be available only

It

if the

was

also the first to

informant swore or

affirmed that he had "sufficient foundation" for specific information about the person, place, or things described. Probable cause attested to

on oath derives partly from Pennsylvania's contribu-

tion to the constitutional law of search

and

seizure.

Delaware's Declaration of Rights of 1776 derived seizure provision partly from vania,

Maryland and

partly

though the Delaware variant was truncated;

clause recognizing the right of the people.

quirement for

It also

specificity respecting the property to

der a warrant, yet

search and

it

omitted the

omitted a re-

be seized un-

deplored as grievous any warrant for the

it

on

seizure of property not based

a

sworn statement. Delaware's

contribution consisted, rather, in the fact that

its

provision was the

declare "illegal" any warrants not meeting the constitu-

first to

tional

its

from Pennsyl-

requirement of

specificity.

In this respect, the Delaware

provision was based on a draft of the Maryland Declaration of Rights, not yet adopted. visions of these

two

The

states

texts of the search

and seizure pro-

were nearly the same. As Delaware

copied Maryland, North Carolina copied Virginia, and Vermont

copied Pennsylvania. Similarly,

New Hampshire in

which did not adopt until 1780.

As

its

1784 would copy Massachusetts,

declaration of rights and constitution

a source of the

Fourth Amendment, the Massa-

chusetts provision on search and seizure was the most important

of

all

the state models, because

Amendment most the work of John

resembles.

it

was the one that the Fourth

The Massachusetts

Adams, the witness

monumental speech

Through Adams and

in Paxton's

Article

to

provision was

and recorder of Otis's

Case about twenty years

XIV

earlier.

of the Massachusetts Declara-

tion of Rights, Otis's influence at last bore triumphant fruits. Article

XIV

declared:

FOURTH AMENDMENT Every subject has

::

171

right to be secure

a

from

unreasonable

all

searches, and seizures of his person, his houses, his papers, and

all

his possessions. All warrants, therefore, are contrary to this right, if

the cause or foundation of

them be not previously supported by

oath or affirmation; and

the order in the warrant to the

officer, to

make

if

search in suspected places, to arrest

civil

one or more

suspected persons, or to seize their property, be not accompanied

with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases and with the formalities, prescribed by the laws.

The detail of the provision is striking. No other right received such particularity in the Massachusetts constitution,

and

like the provi-

which Adams borrowed,

it is

a "right" that

sion of Pennsylvania, is

protected.

searches,

The

is

to be secure against "unreasonable

and seizures," the

become the prime rant

right

first

use of the phrase that would

principle of the Fourth

Amendment. The war-

must be based on sworn statement providing "cause or foun-

dation" for the warrant, but the provision omits, amazingly, a

requirement that the search,

arrest, or seizure

occur within specifi-

cally designated premises.

The war

years were the worst possible for testing whether

American practices matched American provisions. Search

and seizure was

and those suspected of adhering

a

ideals or constitutional

method of fighting the enemy

to that cause.

Perhaps the grossest

violation of a constitutional provision occurred in Pennsylvania in

1777.

Three years

officials

earlier

Congress had complained about customs

breaking and entering without authority. In 1777, though,

Congress urged Pennsylvania's executive council

to search the

homes of Philadelphians, mostly Quakers, whose

loyalty to the

American cause was suspect. Congress wanted

to

disarm such

persons and to seize their political papers. Pennsylvania's executive council

authorized a search of the

homes of anyone who had

not taken an oath of allegiance to the United States.

The

searches

172

::

FOURTH AMENDMENT

of at least six Quaker homes were conducted cruelly and violently,

and

all

sorts of books, papers,

and records were confiscated; more

than forty people were arrested and deported without

trial, let

alone conviction, to Virginia, where they were detained until the

next year. Nothing that the British had done equaled the violation

of privacy rights inflicted by Pennsylvania on in defiance of the state constitution

and

its

"Virginia Exiles,"

corpus by

a writ of habeas

the state chief justice, but with the support of Congress.

American adherence ter

and

is

more

to professed principles stands

fairly tested after the

1782 and the ratification of the Constitution, land,

New

up

five

states— Mary-

York, North and South Carohna, and Georgia— em-

ployed general searches.

The southern

states conventionally

ployed warrantless searches without restriction against especially to detect vagrants

and

fugitives.

But

land's constitution

and laws regulating bakers. Such

from past experience. Most

to specific warrants.

laws,

how-

significant, perhaps,

the fact that the laws of Massachusetts kept faith with

constitution, and

used

Mary-

banned general warrants, Maryland used them

to enforce excise laws ever, derived

em-

slaves,

states

all five

general warrants to enforce their impost laws. Although

ment

far bet-

shooting stopped. Between

its

is

commit-

Moreover, Rhode Island, which had no

New Jersey,

which had one but did not include

a

search and seizure clause, enacted legislation that required the use

of specific warrants. In the remaining

states, general

warrants con-

tinued to be used, but specific warrants were becoming more com-

mon,

especially in cases of theft. In Virginia, the trend toward

specificity

was pronounced,

if

belated.

In Connecticut, which, like tion, the state

Rhode

Island,

had no constitu-

supreme court delivered an opinion of major conse-

quence, in Frisbie

v.

Butler (1787), that voided a general warrant

directed against every person and place suspected by the victim of a theft.

The

state chief justice ruled that a justice of peace, in

granting a warrant, had an obligation "to limit the search to such

FOURTH AMENDMENT particular place or places, as he,

judge there

is

::

173

from the circumstances,

under the warrant

to those persons

found with stolen goods.

warrant before the court, the chief justice concluded, illegal,"

shall

reason to suspect," and he must limit the arrests

because not

specific. Frisbie

v.

The

"is clearly

Butler shows that probable

cause as determined independently by a magistrate was not an

unknown

The

concept.

of rights exposed

posed

Framers

failure of the it

to include in the Constitution a bill

to the withering criticism of those

ratification for

who op-

any reason. Ten days after the Convention

adjourned, Richard Henry Lee of Virginia, a

member of Congress,

sought to wreck the ratification process by moving that Congress

adopt a

bill

of rights. Acting out of a genuine fear of the proposed

Lee had troubled

national government,

rights rather than simply urging the

He

to

frame his own

bill

famous one of his own

of

state.

omitted numerous liberties of importance but included a

search and seizure clause of significance: "the Citizens shall not

be exposed to unreasonable searches, seizures of their papers, houses, persons, or property." Lee had constructed the clause

from the Massachusetts Constitution of 1780.

on the

was the broadest

subject.

Lee's colleague from Virginia James against Lee's motion.

Madison observed

federation required that to

It

all

Madison

led the fight

that the Articles of Con-

thirteen state legislatures

approve the Lee proposals

if endorsed

would have

by Congress. That would

cause confusion because of the Convention's rule that ratification

by nine

state

tion. Lee's

Farmer

conventions would put the Constitution into opera-

motion

letters,

In an early

lost,

but he did not quit.

He

letter,

Lee discoursed on the

the proposed Constitution.

rights omitted

for searching

from

The second one he mentioned was

right against unreasonable warrants, those not

on cause

wrote his Federal

the best of the Anti-Federalist tracts.

the

founded on oath or

and seizing papers, property, and persons.

174

::

FOURTH AMENDMENT

In another letter he included the term part of the Fourth

Amendment.

effects,

he urged a constitutional provision "that right to be secure

from

all

persons shall have a

unreasonable searches and seizures of

all

their persons, houses, papers, or possessions; shall

which would become

In his final word on the subject,

be deemed contrary to

this right, if the

and that

all

warrants

foundation of them be

not previously supported by oath, and there be not in them a special

designation of persons or objects of search, arrest, or seizure."

Other Anti-Federalists vision

on searches and

also popularized the

seizures,

demand

and some used

for a pro-

significant lan-

guage. "Centinel" employed an extract from the Pennsylvania constitution.

The

Anti-Federalists,

"Dissent" of the Pennsylvania convention's

which

also circulated

newspapers and pamphlet form, used

throughout the country

a truncated

form of the same

provision. "Brutus," another whose writings were reprinted

most everywhere, used were not

his

or calculated to inspire

reprinted the rant of

al-

formulation against warrants that

specific. Anti-Federalists

opposed general warrants

officers

own

in

who addressed

the issue usually

in purple language, either reflecting fear

it.

Newspapers

in the four largest states

"A Son of Liberty," who depicted

federal

dragging people off to prison after brutal searches and

confiscations that shocked "the

most

delicate part of our families."

No one could compete with the florid fears expressed by that firstrate

demagogue

Patrick Henry.

Virginia's convention ratified the Constitution with

mendations gress.

free

for

amendments

Among them

was

to be considered

a detailed provision

person "to be secure from

all

recom-

by the First Con-

on the

right of every

unreasonable searches and

sei-

zures"; the provision also required sworn warrants to be based "legal

and

1788, of

The

Virginia recommendation of

authorship, was

moved by George Wythe on

sufficient cause."

unknown

on

behalf of a powerful bipartisan committee that included James

Madison. The committee blended the precedents of the Pennsyl-

FOURTH AMENDMENT

::

175

recommenda-

vania and Massachusetts state constitutions and the tions of Richard

Henry Lee.

Virginia was the

first state to ratify

with a search and seizure recommendation. North CaroHna copied it

recommended amendments; New York and Rhode

in its

did so

also,

with slight changes.

Without

House

for

Island

a single

supporter

when he began

amendments safeguarding personal

his fight in the

hberties,

Madison

members of his

struggled to overcome apathy and opposition from

own party as well as the Anti-Federalists. He meant to win over the great

body of people who withheld

ernment

them

their support of the

new gov-

should secure

in the sincere belief that the Constitution

against the abuse of powers by the United States.

meant

to isolate the leaders of the opposition

their supporters.

redeemed

his

On

route.

And he

by depriving them of

But Madison could have achieved

campaign pledge by taking the

least

his goals

and

troublesome

the issue of search and seizure, for example, he might

have shown up the Anti-Federalists by proposing that the United States

would not enforce

laws by searches and seizures that

its

violated the laws of the states,

warrants.

most of which

still

allowed general

That would have put the burden on the

states to bring

about reforms securing the rights of citizens against unreasonable searches and seizures. that the

Or Madison might have simply proposed

United States would not employ general warrants. Or he

might have recommended the weak formulation of his own constitution, with seized,

its

its

state's

omission of specificity for the things to be

failure to require a

sworn statement, and

its

flabby

assertion that "grievous" warrants "ought" not to be granted.

Even

Virginia's excellent 1788

seizure provision to be

the

added

recommendation

for a search

to the federal Constitution

and

employed

same "ought." If Madison

had chosen

a formulation

narrower than the one he

offered, only the citizens of Massachusetts could consistently have criticized him.

Facing a variety of minimal options, any of which

176

would have been

FOURTH AMENDMENT

::

politically adequate,

Madison chose the max-

imum protection conceivable at the time. He recommended: "The rights of the people to be secured in their persons, their houses, their other property, shall not

from

all

and

unreasonable searches and seizures,

be violated by warrants issued without probable cause,

supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized."

one previously had proposed the imperative

voice, "shall not

violated," rather than the wishful "ought not,"

which allowed

No be for

exceptions. "Probable cause" was also a significant contribution, or

became

so;

it

required more than mere suspicion or even reason-

able suspicion, as

had

its

"sufficient foundation."

sertion

antecedents such as "just cause" and

Above

all,

Madison used the

drawn from Pennsylvania and Massachusetts

ple have rights against "unreasonable searches

John Adams's formulation

for the

positive as-

that the peo-

and seizures"—

Massachusetts constitution.

A House Committee of Eleven, composed of one member from each

state,

deleted the crucial phrase that establishes the general

principle of the Fourth:

no "unreasonable searches and

Specificity in warrants

the lesser half of the

it

is

provides the standard of reasonableness only

seizure

is

conducted with

a warrant.

seizures."

amendment, because

when

a search or

But the standard of reason-

ableness must also apply to warrantless searches according to the

Fourth Amendment. The committee version

initially

declared

that the "rights of the people to be secured in their persons,

houses, papers, and effects, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and

not particularly describing the places to be searched, and the per-

sons or things to be seized." During the debate by the House acting as the

sachusetts

Committee of the Whole, Elbridge Gerry of Mas-

moved

the restoration of "unreasonable seizures and

searches." Oddly, he said he did so

"mistake" had been

made

in the

on the presumption

wording of the

clause,

that a

which he

FOURTH AMENDMENT

::

177

corrected by changing "rights" to "right" and "secured" to "secure."

The

was

effect

to provide security or, as

we might

say,

privacy to the people; Gerry's motion changed the meaning from a protection of the right to a protection of individuals in their persons, homes, papers,

and

The Committee

effects.

of the

Whole

adopted his motion but defeated others that were also important.

According

the defeated motions of

Au-

upon by the Committee of

the

House Journal,

to the

gust 17 were reported as agreed

Whole. Thus, the provision recommended articles

to the

House,

in the

arranged by a special committee of three read: "The right

of the people to be secure in their persons, houses, papers, and effects, against

violated;

unreasonable searches and seizures, shall not be

and no warrants

shall issue,

but upon probable cause,

and

particularly describing the

supported by oath or affirmation,

place to be searched, and the persons or things to be seized."

The

changes that seem to have been sneaked in did more than eliminate a

double negative.

The

entire provision

separated by a semicolon.

people and laid

and

seizures.

down

The

The second

part fixed the right of the

No other changes were made

number of the article.

the

House and accepted by a belated

two parts

part required probable cause for the

the

had

split into

the standard against unreasonable searches

issue of a specific warrant.

finally

first

was

Its text

remained the same

as

except in

adopted by

Adams

the Senate. Thus, Otis and

but cardinal impact on the making of the

Fourth Amendment, even though Madison was immediately influenced by Lee and Virginia's recommendation. Lee, ginia's legislature

had elected

to the

whom Vir-

United States Senate instead

of Madison, bitterly complained to Patrick Henry that the idea of

recommending amendments political suicide; the Bill

to the Constitution

of Rights

made

turned out to be

impossible the

amend-

ments most desired by the Anti-Federalists limiting national powers concerning taxes, treaties,

When Madison

had

first

and commerce.

recommended

to the

House

that

it

178

consider

amendments

FOURTH AMENDMENT

::

to the Constitution,

some Anti-Federalists

thought the House should not neglect the more important business of passing a law for the collection of duties. That law, which

passed seven weeks before the amendments were adopted for state consideration, contained a clause on search and seizure. collectors

and naval

officers to enter

It

allowed

and search any ships sus-

pected of having uncustomed goods and to seize such goods. That is,

Congress authorized general searches

for the search

By

of ships— warrantless, general searches.

and seizure

contrast, if an officer

suspected the concealment of uncustomed goods in a building on land, he

must apply

under oath

for a specific warrant before a magistrate

state the cause

and

of his suspicion, and he "shall ... be

entitled to a warrant to enter such house, store, or any place [in the

day time only]" and

conduct the search for and seizure of

to

uncustomed goods. Thus, the of the Fourth

Amendment

statute enacted before the framing

required magistrates to issue the war-

rant on the basis of the officer's suspicion, not on the magistrate's

independent judgment of the question of whether probable

cause existed.

Allowing the specificity

officer

who executed

a

warrant to determine

put the fox in charge of the chicken coop.

trate in effect accepted the officer's

acting in good faith.

That

is difficult

its

The magis-

sworn statement that he was to reconcile with the fact that

the good faith execution of a general warrant by a customs officer in the years before the

Revolution did not, to American whigs,

validate the warrant or the seizures

under

it.

The adoption of the Fourth Amendment changed drastically. In

March

1791, before the

the situation

amendment had been

for-

mally ratified but after approval by nine state legislatures. Congress enacted a tax

United

States.

on

The

Amendment. Unlike plicitly

liquor,

whether imported or

statute reflected the

distilled in the

meaning of the Fourth

the collections act of 1 789, the act of 1 79 1 ex-

empowered magistrates

to decide for themselves

whether

FOURTH AMENDMENT an

officer

::

179

had probable cause. Any judge with jurisdiction might

issue a "special warrant" for the detection of fraudulently con-

cealed spirits, but the warrant was lawful only

cause of suspicion, to be

made out

"upon reasonable

to the satisfaction

or justice of the peace" and sworn under oath.

of such judge

That became the

basis in federal law for the determination of probable cause.

The amendment search and seizure. time.

It

constituted a swift liberalization of the law of Its

language was the broadest

provided no remedy, however, for an

known

at the

search or

illegal

seizure or for the introduction in evidence of illegally seized items. It

contained principles that were as vague as they might be com-

prehensive; "probable" and "unreasonable," even

if judicially

termined, remained uncertain in meaning, and Congress provision for the violated the

liability, civil

or criminal, of federal officers

amendment. Moreover, no exclusionary

de-

made no

who

rule existed.

Consequently, the right of privacy created by the amendment,

though better secured by the fundamental law

in

comparison

to

previous practices and standards, depended on congressional and judicial

adherence to the

meaning of the

spirit

right to privacy

of the amendment. In

depended then,

effect, the

as now,

upon

the

interpretation of the "probable cause" that justified a specific war-

rant and, above

all,

on the reasonableness of searches and

seizures.

CHAPTER EIGHT

The Fifth Amendment:

The Right Against Self-incrimination

A

S

^ ^

/ / /

ORIGINALLY

proposed by James Madison, when

he introduced the recommendations that became the Bill of Rights, the Fifth

Amendment's

i\ incrimination clause was part of a miscellaneous

"No

ticle that read:

impeachment,

to

be deprived of life,

or

trial for

without due process of law; it

may be

sary for public use, without a just compensation." reflects the industriousness

He

the same

compelled to be a witness against himself; nor

liberty, or property,

nor be obliged to relinquish his property, where

podge

ar-

person shall be subject, except in cases of

more than one punishment

offense; nor shall be

work.

self-

and

neces-

That hodge-

creativity of

Madison's

stated that he merely sought to satisfy a widespread

conviction that the United States should be restrained from violating personal rights.

tion or in

its

But no

state, either in its

recommended amendments, had

own

constitu-

a self-incrimination

clause phrased as generously as that introduced by Madison: "no

person

.

.

.

shall

be compelled to be a witness against himself"

Not only was Madison's phrasing

original; his

placement of

the clause was also unusual. In the widely imitated model of his

own

state, the clause

appeared

in the 180

midst of an enumeration of

FIFTH

AMENDMENT

::

181

the procedural rights of the criminally accused at his

Delaware and Maryland had departed from

this

ing the clause independent status and applicability in

thereby extending

it

to witnesses as well as parties

well as criminal proceedings. In presenting his

Only

trial.

precedent by giv-

and

all

courts,

to civil as

amendment, Madi-

son said nothing whatever that explained his intentions concerning the self-incrimination clause.

dence illuminate his meaning.

Nor do

We

his papers or correspon-

have only the language of his

proposal, and that revealed an intent to incorporate into the stitution the

whole scope of the common-law

Madison's proposal certainly applied to

Con-

right.

civil as

well as criminal

proceedings and in principle to any stage of a legal inquiry, including the

initial

interrogation in a criminal case and the swearing of a

deposition in a

civil

one.

extended to any kind of governmental

It

inquiry, judicial or otherwise.

no one could be compelled

Moreover, the unique phrasing, that

to be a witness against himself,

was

far

more comprehensive than a prohibition against self-incrimination. But the conventional phrasing,

that

no one should be compelled

to accuse oneself or furnish evidence against oneself, also

prehended more than self-incrimination. By

its

com-

terms the clause

short of making one

could also apply to any testimony that

fell

vulnerable to criminal jeopardy or

penalty or forfeiture but

that nevertheless exposed

other injury to

name and

one

to public disgrace or obloquy, or

reputation. Finally, Madison's phrasing

protected third parties, those give testimony for

civil

who were merely

witnesses called to

one side or the other, whether

in civil, criminal,

or equity proceedings. According to customary procedure, witnesses, unlike parties, could in fact be

compelled to give evidence,

under oath, although they were safeguarded against the necessity of testifying against themselves in any manner that might open

them

to prosecution for a criminal offense or subject

forfeiture or civil penalties.

fendant nor the parties to a

By

them

to a

contrast, neither the criminal de-

civil suit

could be compelled to give

182

They could

testimony.

themselves.

The

::

FIFTH

AMENDMENT

furnish evidence neither for nor against

law did require mere witnesses to give evidence

Madison,

for or against the parties but not against themselves.

going beyond the recommendations of the states and the constitution of his sive

own

state,

phrased his

own

proposal to

make

it

coexten-

with the broadest practice.

Comparing

his proposal with its precedents

George Mason of Virginia belongs the

is

To

revealing.

credit for initiating the

constitutionaHzation of the old English rule of evidence that a

person, in Mason's words, "cannot be compelled to give evidence against himself" section 8 of

its

That was the language adopted by Virginia

Declaration of Rights of 1776, prefacing

state constitution.

But the guarantee appeared

in

its first

in the context

of

an enumeration of the rights of the criminally accused. Therefore, Virginia's constitutional right against self-incrimination did

not extend to anyone but the accused, nor did

it

apply to any pro-

ceedings other than a criminal prosecution. As a matter of actual practice, however, Virginia's courts allowed a right against self-

incrimination in

and

all

stages of equity and

common-law proceedings

also allowed witnesses as well as defendants to invoke the

right.

Indeed,

it

could be claimed by a criminal suspect

at a

prelim-

inary examination before a justice of the peace; by a person testify-

ing at a grand jury investigation into crime; by anyone giving

evidence in a suit between private parties; and, above

by the subject of an

inquisitorial proceeding before

mental or nonjudicial tribunal, such

as a legislative

all

perhaps,

any govern-

committee or

the governor and council, seeking to discover criminal culpability. If one's disclosures could

make him vulnerable

could invoke his right to silence.

He

to legal peril,

might even do so

if his

he an-

swers revealed infamy or disgrace yet could not be used against

him as in

in a

subsequent prosecution.

The

law of Virginia at this time,

England, shielded witnesses against mere exposure to public

obloquy.

The

right against self-incrimination incorporated a pro-

tection against self-infamy

and was broad

as the jeopardy against

FIFTH

which

it

AMENDMENT

183

::

sought to guard. Yet the Virginia Declaration of Rights,

though vesting

a testimonial rule

with the impregnability of con-

stitutional guarantee, provided only a stunted version of the

mon

law.

Read

and

literally

in context, the right

a criminal defendant at

trial.

seemed

was

If that

its

permitted to

testify. If

trial

it

was a

was not even

he had not confessed, the prosecution had

to prove its case against

him by the testimony of witnesses and

other evidence; the prisoner, in turn,

made

his defense

by wit-

had them, by cross-examining the prosecution's wit-

nesses, if he

nesses and by

commenting on the evidence

could afford counsel, he need never open his

against him. If he

mouth during

the

With or without counsel, he could neither be placed on the

stand by the prosecution nor take the stand

George Mason nor

quently, neither ture,

to apply only to

meaning,

superfluous guarantee, because the defendant at

trial.

com-

who were The

he wished. Conse-

his colleagues in the legisla-

acting as a constitutional convention, could have

meant what they meant.

if

said.

More

they failed to say what they

likely,

provision against self-incrimination was the product

of bad drafting, which the Virginia convention failed to remedy.

But no evidence

exists to

show

that

it

was taken

literally

garded as anything but a sonorous declamation of the

common-law

law right of long standing. Other

or re-

common-

rights that

had

been entirely overlooked by Virginia's constitution makers, including such

vital rights as

habeas corpus, grand jury indictment,

and representation by counsel, continued to be observed practice. ginia's

Thus

in daily

the great Declaration of Rights did not alter Vir-

system of criminal procedure nor express the

rights that actually flourished.

The

totality

practice of the courts

of

was

simply unaffected by the restrictions inadvertently or unknow-

Thus, the language of

a constitu-

tional text does not necessarily reveal original intent or

contempo-

ingly inserted into section

8.

raneous practice. Section

8,

nevertheless,

became

a

model

for other states

and

for

184

::

FIFTH

AMENDMENT

the United States Bill of Rights. Indeed, the Virginia Declaration

of Rights became one of the most influential constitutional docu-

ments

in

American

The committee

history.

draft

was reprinted

in

the Philadelphia newspapers even before Independence, making available to the delegates

from

all

it

the states assembled in the Sec-

ond Continental Congress. That committee

draft

was republished

over America, and even in England and on the Continent, in

all

time to be a shaping force in the framing of other state constitutions.

Except

for the corporate colonies of

Rhode

Island and

Connecticut, which stood pat with their old colonial charters, the other states followed Virginia's example of framing a state constitution. Eight states, including

Vermont, which was technically an

independent republic from 1776 until admitted 1

79 1, annexed separate

bills

Every one of the eight

to the

Union

in

of rights to their constitutions.

states protected the right against self-

incrimination, and every one in essentially the language of Virginia's section 8,

because each followed the basic formulation that

no man can be "compelled

to give evidence against

himself" In

1776, Pennsylvania adopted section 8 in entirety, adding only the right to be represented by counsel and retaining the self-

incrimination clause verbatim. In 1776 Delaware introduced a subtle but crucial change by

section instead of inserting

making it

that clause an independent

among

the enumerated rights of

the criminally accused. Moreover, Delaware's guarantee, "That

no

Man

in the

Courts of common

Law ought

to

be compelled to

give evidence against himself," extended the right against self-

incrimination to witnesses as well as parties, in

civil

and

as well as

criminal cases. Maryland in the same year also placed the self-

incrimination clause in a section by itself and broadened

Delaware, extending

it

not only to "a

common

it,

as did

court of law" but

also to "any other court," meaning courts of equity But Maryland

simultaneously qualified the right by providing for exceptions to it

"in such cases as have been usually practised in this State, or

AMENDMENT

FIFTH

may

185

::

hereafter be directed by the Legislature."

in eifect, required a

man

That quaHfication,

to give evidence against himself if a

pardon or a grant of immunity against prosecution exempted him

from the penal consequences of his 1776 followed Virginia's section

disclosures.

Vermont

did

8, as

North Carolina

in

in 1777. In

1780 Massachusetts sHghtly modified the Virginia phraseology. Referring to a criminal defendant, Massachusetts provided that

he should not be compelled "to accuse, or furnish"— instead of

"give"— evidence against himself In 1784 lowed

suit.

George Mason's observation

New Hampshire

fol-

that his Declaration of

Rights was "closely imitated" was certainly accurate with respect to the self-incrimination clause.

Of the

four states— New Jersey,

New York, Georgia, and

South

Carolina— that did not preface their constitutions with a separate bill

of rights, none secured the right against self-incrimination.

All,

however, guaranteed some rights, even

points in their constitutions.

New

omnibus clause

common

that kept the

if only a few, at

Jersey, for example,

various

had an

law of England in force,

thereby protecting the right against self-incrimination. Superfluously,

by

trial

New Jersey specifically protected the right to counsel and New York also provided that the common law should

jury.

continue as the law of the

by

jury,

tion,

trial

in New York's constituWhy those two were sin-

which were expressly mentioned

were secured by the

gled out above cially

the right to indictment and

state, yet

all

other

common

law.

common-law

rights

is

inexplicable, espe-

because the courts were enjoined to "proceed according to

the course of the

common

and citizens were additionally

law,"

protected by the standard "law of the land" clause, the equivalent

of a due process of law clause.

The

constitution also protected the

right to vote, the free exercise of religion, representation sel,

and

rights

a qualified

freedom from

bills

by coun-

of attainder. Perhaps these

were singled out because they were either unprotected

best, inadequately protected

by the

common

law. Yet,

or, at

other rights

186

in the

FIFTH

AMENDMENT

same category were ignored, while

fluously secured.

No

baffling.

dence

::

is

The whole

trial

by jury was super-

New York was

process of selection in

reasoned explanation nor any drawn from the evi-

available.

Although the right against self-incrimination was not mentioned in

dom

New York's constitution,

neither were the rights to free-

of speech and press— shade of Zenger!— nor the writ of

habeas corpus.

New

York also ignored protections against unrea-

sonable searches and seizures, ex post facto laws, and double jeop-

The

ardy.

absence of express guarantees simply cannot be con-

strued to indicate that these rights were not present in practice.

One

could no more reasonably argue that the omission of a ban

against compulsory self-incrimination proved that

did not exist

it

or was regarded without respect than he could argue that the right to the writ of habeas

corpus was illusory because

not constitutionally protected. In

its

enumeration of

too,

it,

rights.

was

New

York's constitution was framed in an incredibly haphazard fash-

New Jersey's,

ion, like

The same olina

with no discernible principle of selection.

observation applied to the constitutions of South Car-

and Georgia, neither of which protected the right against

self-incrimination.

The

history of the writing of the

first

American

bills

of rights

and constitutions simply does not bear out the presupposition that the process was a diligent or systematic one.

which we

uncritically exalt,

were

Those documents,

imitative, deficient,

tionally selective. In the glorious act of

framing a

social

and

irra-

compact

expressive of the supreme law, Americans tended simply to draw

up

a

random

statement of

catalog of rights that first

seemed

to satisfy their urge for a

principles— or for some of them. That task was

executed in a disordered fashion that verged on ineptness. Original intent as the basis for constitutional jurisprudence seems,

premises are

therefore, equally disordered or irrational, for

its

based on

exclusion of any

illusions.

At any

rate, the inclusion or

FIFTH

AMENDMENT

::

187

particular right neither proved nor disproved

its

existence in a

state's colonial history.

In the First Congress, there was no debate

on the

self-

incrimination clause. Only one speaker, John Laurence, a Federalist

lawyer of

New

York, addressed himself to what he called the

proposal that "a person shall not be compelled to give evidence against himself" Interestingly, he restated Madison's phrasing in

the language of the

more

familiar clause deriving

from section 8 of

the Virginia Declaration of Rights, as if they were the same. Calling

some degree contrary

"a general declaration in

it

passed," Laurence thought that cases,"

it

to laws

should "be confined to criminal

and he moved an amendment

for that purpose.

The House

adopted Laurence's motion for an amendment without discussion; the clause as

amended was adopted unanimously. The speed with

which the House seems

to have acted, without the record

showing

any controversy over the significant restriction of the scope of the clause,

is

bewildering. Simple respect for the House's

own

distin-

guished select committee, a nonpartisan group that included one

member from

each

state, five

of

whom

had been delegates

to the

Philadelphia Constitutional Convention of 1787, ought to have re-

The

quired some explanation. son, had intended tion."

Taken

select

what Laurence

Hterally, the

committee, following Madi-

rightly called "a general declara-

amended

clause,

"No

personal shall

.

.

.

be compelled in any criminal case, to be a witness against himself," excluded from

its

protection parties and witnesses in

civil

and

equity suits as well as witnesses before nonjudicial governmental

proceedings such as legislative investigations. As amended plied only to parties all

and witnesses

stages of proceedings

ment and

from

in criminal cases,

arrest

it

ap-

presumably to

and examination

to indict-

trial.

Laurence's passing remark that the committee proposal was "in

some degree contrary

to laws passed"

was inaccurate yet

il-

luminated the purpose of his motion to amend. Exactly a month

188

earlier, bill

on July

that

17, the

::

FIFTH

AMENDMENT

Senate had passed and sent to the House the

became the Judiciary Act of 1789. Thanks

House

efforts, the

tabled the judiciary

bill

while

it

to

Madison's

attended to the

matter of amending the Constitution. Not until the House ap-

proved of the proposed amendments and sent them

to the Senate

on August 24 did the Committee of the Whole take up the ciary

bill. Its

may have

when

alluded

the original Senate draft

dant,

It

referring to "laws passed." Section 15 in

empowered

the federal courts to compel

produce their books or papers containing relevant

civil parties to

evidence.

judi-

provisions contained a section to which Laurence

also provided that a plaintiff

on proving

might require

a defen-

to the satisfaction of a court that the defendant

had deprived him of evidence

to

support his cause, "to disclose on

oath his or her knowledge in the cause in cases under circumstances where a respondent might be compelled to disclosure

on oath by aforesaid

that final clause described

it

as

rules of chancery."

make such

a

Opponents of

an authorization for "inquisitorial

powers." Senator William Maclay of Pennsylvania argued that "extorting evidence from any person was a species of torture.

.

.

.

[H]ere was an attempt to exercise a tyranny of the same kind over the mind.

The

conscience was to be put on the rack; that forcing

oaths or evidence from men,

I

torting evidence by torture."

consider equally tyrannical as ex-

The

offend his constituents, whose state

clause, he concluded, bill

would

of rights provided that no

person could be compelled to give evidence against himself As a result of such opposition the oath provision bill as

was stricken from the

adopted by the Senate. Nevertheless,

it

retained the clause

forcing the production of books or papers that contained pertinent

evidence in

civil

cases "under circumstances

where they might be

compelled to produce the same by the ordinary rules of proceeding in

Chancery," that

According

to

is,

in courts

of equity.

an early federal court ruling, this provision was

intended to prevent the necessity of instituting equity suits to

AMENDMENT

FIFTH

::

189

obtain from an adverse party the production of documents related

The provision did not suspend or supersede the

to a litigated issue.

right against self-incrimination, but

did limit the reach of the

it

general principle that no one could be compelled to be a witness against himself

The documents

party without incriminating him. to

produce

a

himself to a this

deed proving

civil,

pending

in question could

plaintiff's

but not a criminal,

legislation in

be against the

He might, for example, be forced ownership, thereby exposing

liability.

Thus Laurence, with

mind, may have moved the insertion of

the words "in any criminal case" in order to retain the customary

equity rule that compelled evidence of civil

To compel

civil liabiHty.

a

defendant to produce records or papers "against himself,"

harming

his case, in

produce them

if

no way infringed

they could

his traditional right not to

harm him

incidentally, passed the judiciary bill with section 15

In the Senate, the House's proposed stitution

The House,

criminally.

unchanged.

amendments

to the

Con-

underwent further change. However, the Senate accepted

The double

the self-incrimination clause without change.

jeop-

ardy clause in the same article was rephrased and a clause on the grand jury, which the

House had coupled with guarantees

relating to the trial of crimes,

was transferred

to the

what became the Fifth Amendment. In what was

Amendment

to

beginning of be the Sixth

the Senate clustered the procedural rights of the

criminally accused after indictment. clause did not

fall

into the Sixth

That the self-incrimination

Amendment

indicated that the

Senate, Hke the House, did not intend to follow the implication of Virginia's section 8, the original model, that the right not to give

evidence against oneself applied merely to the defendant on

The

Sixth

tected

him

Amendment,

trial.

referring explicitly to the accused, pro-

alone. Indeed, the Sixth

Amendment, with

the right of

counsel added, was the equivalent of Virginia's section 8 and in-

cluded

all

of

its

rights except that against self-incrimination.

Thus, the location of the self-incrimination clause

in the Fifth

190

Amendment

::

FIFTH

AMENDMENT

rather than the Sixth proves that the Senate, hke the

House, did not intend

to restrict that clause only to the criminal

defendant nor only to his

trial.

The

Fifth

Amendment, even with

the self-incrimination clause restricted to criminal cases,

pressed

its

enough

principle broadly

still

to apply to witnesses

ex-

and

to

any phase of the proceedings.

The

clause

also

protected

against

more than

just

"self-

incrimination," a phrase that had never been used in the long history of

its

origins

incrimination"

is

a

and development. The "right against

self-

shorthand gloss of modern origin that imphes a

restriction not in the constitutional clause.

The

right not to be a

witness against oneself imports a principle of wider reach, applicable, at least in

criminal cases, to the self-production of any adverse

evidence, including evidence that

own

made one

the herald of one's

infamy, thereby publicly disgracing the person.

extended, in other words, to

all

The

clause

the injurious as well as incriminat-

ing consequences of disclosure by witness or party. Clearly, to

speak merely of a right against self-incrimination stunts the wider right not to give evidence against oneself, as the Virginia

put

it,

ment and

or not to be a witness against oneself, as the Fifth

stated.

in

The

model

Amend-

previous history of the right, both in England

America, proves that

was not bound by

it

After the adoption of the Fifth

Amendment,

rigid definition.

the earliest state and

federal cases were in accord with that previous history,

which

suggests that whatever the wording of the constitutional formulation,

it

did not supersede or even limit the

Pennsylvania's experience

is

common-law

to the point.

The

right.

state constitu-

had followed the Virginia model by placing

in the

context of criminal prosecutions the principle that "no

man"

tion of 1776

should be compelled to give evidence against himself In 1790 Pennsylvania, in a

new

constitution, replaced the

"no man"

for-

mulation with a specific reference to "the accused." Nevertheless, in the first

Pennsylvania case involving this clause, the state su-

AMENDMENT

FIFTH

preme court ignored the interpreted

obUged

it

::

191

restriction introduced in 1790 or, rather,

maxim

as expressing the historic

to accuse himself.

The

no person

is

case involved a prosecution for

violating an election law that required answ^ers tions concerning loyalty during the sel for

that

on oath

to ques-

American Revolution. Coun-

defense argued that the constitutional clause of 1790 pro-

tected against questions the answers to

which might tend

to result

in a prosecution or bring the party into disgrace or infamy.

Justice

Edward Shippen, who had studied

had begun

at

Chief

Middle Temple and

his legal practice in Pennsylvania

way back

in 1750,

believed the following opinion: It

has been objected that the questions propounded to the electors

contravene an established principle of

law.

tenetur seipsum accusare (sen prodere)." policy, is

The maxim

It is

is,

"Nemo

founded on the best

and runs throughout our whole system of jurisprudence.

It

the uniform practice of courts of justice as to witnesses and

considered cruel and unjust to propose questions which

jurors. It

is

may tend

to criminate the party.

And so jealous have the legislatures mode of discovery of facts that

of this commonwealth been of this they have refused their assent to a to disclose

on oath papers

mere property. And may we not be

less jealous

accusation.^

and

brought

in to

compel persons

justly

of

suppose that they would not

of securing our citizens against this

The words

their sense

bill

as well as facts relating to questions

mode

of

self-

"accusare" and "prodere" are general terms,

not confined to cases where the answers to the

is

questions proposed would induce to the punishment of the party. If

they would involve

him

in

shame or reproach, he

is

under no obliga-

tion to answer them.

The same court applied a similar rule in a purely civil case, that

no one could be forced

holding

to take the oath of a witness if his

testimony "tends to accuse himself of an immoral act."

The

state courts

of the Framers' generation endorsed the

extension of the right to cover self-infamy as well as selfincrimination, although the seh-infamy rule eventually

fell

into

192

disuse.

FIFTH

::

Both federal and

AMENDMENT

state courts followed in all other respects

Shippen's far-reaching interpretation of what on

its

face

and

in

context was a narrow clause. In the earliest federal case on the right against self-incrimination, Justice

preme Court, answer

a

James

Iredell of the

in circuit duty, ruled that a witness

Su-

was not bound

to

question that might tend to "implicate" or criminate

himself In one of the most famous cases in American constitutional history,

Marbury

v.

Madison, Attorney General Levi Lin-

coln balked at a question relating to his conduct as acting secretary

of state when Jefferson became president. Marbury's commission as a justice of the peace for the District of

Columbia had been

signed by the outgoing president and affixed with the seal of the

United States by the then secretary of

had had no time

to deliver

it.

state,

John Marshall, who

What, asked Chief Justice Marshall,

had Lincoln done with that commission.^ Lincoln, who probably had burned

it,

rephed that he did not think that he was bound

to

disclose his official transactions while acting as secretary of state,

nor should he "be compelled to answer any thing which might tend to criminate himself" Marbury's counsel, Charles Lee,

was himself

a

who

former attorney general of the United States, and

Chief Justice Marshall were

in

agreement: Lincoln,

who was in the

peculiar position of being both a witness and a counsel for the

government that

in a civil suit,

was not obliged

to disclose anything

might incriminate him. In Aaron Burr's

trial,

Chief Justice

Marshall, without referring to the constitutional clause, again sustained the right of a witness to refuse answer to an incriminating question.

The courts have

always assumed that the meaning of the

common law. Whether the Framers of the Fifth Amendment intended it to be fully coextensive with the common law cannot be proved— or disproved. The language of the clause and its Framers' understanding of it may not have been synonymous. The difficulty is constitutional clause

that

its

is

Framers, from

determined by the

Mason

to

Madison and Laurence,

left

too

AMENDMENT

FIFTH

few

clues. Slight explication

emerged during the process of

and

and convention proceedings,

tracts, in judicial opinions,

from 1776

to

1

79

1

in letters,

newspapers,

and law books, the whole period

reveals neither sufficient explanation of the

scope of such a clause nor the reasons for

it.

That

it

was

a

ban on

torture and a security for the criminally accused were the

important of Still,

its

state

from 1789 through 1791. Indeed,

ratification of the Bill of Rights in legislative

193

::

functions, but these were not

all

of

its

most

functions.

nothing can be found of a theoretical nature expressing a

rationale or underlying policy for the right in question or

The

probable reason

is

its

reach.

that by 1776 the right against self-

incrimination was simply taken for granted and was so deeply

accepted that

its

constitutional expression had the mechanical

quality of a ritualistic gesture in favor of a self-evident truth need-

ing no explanation. 8 or the Fifth

The clause itself, whether

Amendment, might have been

in Virginia's section

so imprecisely stated,

or misstated, as to raise vital questions of intent, meaning, and

purpose. But constitution makers, in that day at

least,

did not

explain themselves and did not regard themselves as framers of detailed codes. sufficient,

To them

the statement of a bare principle was

and they were content

ously, in order to allow for its

and

to

put

it

spaciously, if

ambigu-

expansion as the need might arise

in order to avoid the controversy that detail or explanation

might provoke.

By bill

stating the principle in the Bill of Rights,

which was

also a

of restraints upon government, the Framers were once again

sounding the tocsin against the dangers of government oppression of the individual; they were also voicing their conviction that the right against self-incrimination

was

a legitimate defense possessed

by every individual against government. Tough-minded revolutionists, the

equal of any in history in the art of self-government,

they were willing to risk lives and fortunes in support of their behefs that government

is

but an instrument of the people,

its

194

::

AMENDMENT

FIFTH

They cannot

sovereignty held in subordination to their rights. justly

be accused of having been naive or disregardful of the claims

of law and order.

They were mindful, nevertheless, that the endur-

ing interests of the

The

as possible.

iment of their

community required

Constitution with

is

justice to

the master of the government, not

As Justice Abe Fortas observed, "The

ject.

be done as

fairly

amendments was an embod-

an ever-present reminder of their

political morality,

view that the citizen

its

sub-

its

man

principle that a

is

not obliged to furnish the state with ammunition to use against

him is basic defend

The state, he acknowledged, must

to this conception."

itself and,

ish lawbreakers.

"within the limits of accepted procedure," pun-

"But

it

has no right to compel the sovereign indi-

vidual to surrender or impair his right of self-defense."

damental value reflected by the Fifth is

true; but so

is liberty,

and so

is

Amendment

man's immortal

be punished, even put to death, by the not be

made

belongs to a

from

free

the state

his

God.

It is

fun-

"is tangible, it

soul.

A man may

but ... he should

Mea

to prostrate himself before its majesty.

man and

men by human

is

state;

The

culpa

a plea that cannot be exacted

authority.

To

require

the superior of the individuals

to insist that

it is

who compose

it,

instead

of their instrument."

The same

point underlay the statements of another distin-

guished federal judge, Calvert Magruder forefathers,

ment of the

when they wrote constitution,

who

had

in

mind

been largely forgotten today." The

a lot of history

which has

by counsel,

trial

by

any of the other, related procedural rights that are consti-

tutionally sanctified.

With good reason the

Bill

preoccupation with the subject of criminal

understood that without

fair

of Rights showed a

justice.

The Framers

and regularized procedures

tect the criminally accused, liberty could not exist.

that

"Our

Amend-

remark applies with equal

force, of course, to the right of representation jury, or

observed,

this provision into the Fifth

from time immemorial, the

tyrant's first step

to pro-

They knew

was

to use the

criminal law to crush his opposition. Vicious and ad hoc pro-

FIFTH

AMENDMENT

195

::

cedures had always been used to victimize nonconformists and minorities of differing religious, racial, or political persuasions.

The

Fifth

were so

Amendment was

crucial, in the

most treasured

part and parcel of the procedures that

minds of the Framers,

to the survival of the

One's home could not be his "castle," his

rights.

property be his own, his right to express his opinions or to worship his

God

be secure,

imprisoned

some

in

if

The Framers of the

man

he could be searched, arrested,

tried, or

arbitrary or ignoble manner. Bill

of Rights saw their injunction, that no

should be a witness against himself in a criminal case, as a

central feature of the accusatory system of criminal justice.

While

deeply committed to perpetuating a system that minimized the possibilities

of convicting the innocent, they were no less con-

cerned about the humanity that the fundamental law should show even to the offender. Above

judgment that

their

all,

the Fifth

in a free society,

Amendment

reflected

based on respect for the

individual, the determination of guilt or innocence by just pro-

cedures, in which the accused this conviction,

As

made no unwilling

was more important than punishing the

"The

Justice Felix Frankfurter declared,

self-incrimination liarly true that 'a

That page of

is

page of history

is

worth

a

it

is

volume of

pecu-

logic.'"

history begins with the origins of the right against

"seamless web" of history

is

origins derive largely

tem of criminal spill

epigram that the

torn by telling a piece of it

effort to explain the origins

complex,

guilty.

privilege against

of which

a specific provision

self-incrimination. Frederic William Maitland's

by any

contribution to

of that right.

is

borne out

The American

from the inherited English common-law sys-

justice.

But the English

origins, so

much more

over legal boundaries and reflect the many-sided

rehgious, political, and constitutional issues that racked England

during the sixteenth and seventeenth centuries: the struggles be-

tween Anglicanism and Puritanism, between Parliament and king,

between limited government and arbitrary

dom

rule,

and between

free-

of conscience and suppression of heresy and sedition. Even

196

::

FIFTH

AMENDMENT

within the more immediate confines of law, the history of the right against self-incrimination tests for

enmeshed

is

in

broad

issues: the

supremacy between the accusatory and the

con-

inquisitional

common law and the royal common law and its canon and civil

systems of procedure, between the prerogative, and between the

law

rivals.

Against this broad background the origins of the con-

cept that "no

man

is

bound

to accuse

himself" {nemo tenetur

sum prodere) must be understood and the concept's

ment

traced.

The

right against self-incrimination originated as an indirect

product of the

common

law's accusatory system

tion to rival systems that

employed

and of its opposi-

inquisitorial procedures.

ward the close of the sixteenth century, first

seip-

legal develop-

appeared in England on a sustained

just before the basis, all courts

To-

concept of crimi-

nal jurisdiction habitually sought to exact self-incriminatory ad-

mission from persons suspected of or charged with crime. Al-

though defendants

in

crown cases suffered from

other harsh procedures, even in

common-law

this

and many

courts, the accusa-

tory system afforded a degree of fair play not available under the inquisitional system. Moreover, torture

the

common

law,

although

it

was never sanctioned by

was employed

as an

instrument of

royal prerogative until 1641.

By

contrast, torture for the purpose of detecting crime

inducing confession was regularly authorized by the of the canon and

civil

law "Abandon

all

hope, ye

and

Roman codes

who

enter here"

well describes the chances of an accused person under inquisitorial

procedures characterized by presentment based on mere rumor or suspicion, indefiniteness of accusation, the oath ex officio, secrecy, lack of confrontation, coerced confessions, as accusers

and prosecutors

and magistrates acting

as well as "judges."

This system of

procedures, by which heresy was most efficiently combated, was

introduced into England by ecclesiastical courts.

The ularly

use of the oath ex officio by prerogative courts, partic-

by the

ecclesiastical

Court of High Commission, which

FIFTH

Elizabeth

man

is

I

AMENDMENT

197

::

reconstituted, resulted in the defensive claim that "no

bound

to accuse himself."

strument of the crown

for

The High Commission, an

in-

maintaining religious uniformity under

the Anglican establishment, used the canon law inquisitorial process, its

but

made

the oath ex officio, rather than torture, the crux of

procedure. Persons suspected of "heretical opinions," "sedi-

tious books," or "conspiracies"

summoned

were

before the

Commission without being informed of the accusation

them

or the identity of their accusers.

High

against

Denied due process of law

by common-law standards, suspects were required to take an oath to

answer truthfully to interrogatories that sought

guilt for

to establish

crimes neither charged nor disclosed.

Nonconformist victims of the High Commission found themselves thrust

between hammer and

or having taken

it,

refusal to

anvil: refusal to take the oath,

answer the interrogatories, meant

sentence for contempt and invited Star take the oath

and respond truthfully

Chamber

proceedings; to

to questioning often

to convict oneself of religious or poHtical

a

meant

crimes and, moreover, to

supply evidence against nonconformist accomplices; to take the oath and then

lie

meant

to sin against the Scriptures

Common

conviction for perjury.

and

risk

lawyers of the Puritan party de-

veloped the daring argument that the oath, although sanctioned by the crown, was unconstitutional because

it

violated

Magna

Carta,

which limited even the royal prerogative.

The argument had myth-making qualities, earliest to exalt

Magna

constitutional liberty.

it

was one of the

Carta as the symbol and source of English

As

yet there

was no contention that one

need not answer incriminating questions

use substantially the same

Carta ... for a

after accusation

by due

common law. But a later generation would

process according to the

Magna

for

argument— "that by

man

to accuse himself

the Statutes of the

was and

is

utterlie

inhibited"— on behalf of the contention that one need not involuntarily

answer questions even after one had been properly accused.

Under Chief

Justice

Edward Coke the common-law

courts,

198

::

FIFTH

AMENDMENT

with the sympathy of the House of Commons, vindicated the Puritan tactic of Htigious opposition of the

deep

hostility

pressed

High Commission. The

between the canon and common-law systems ex-

itself in a series

of writs of prohibition issued by Coke and

his colleagues, staying the

commission's proceedings. Coke, adept

at creating legal fictions that

he clothed with the authority of resur-

rected "precedents" and inferences from

Magna

Carta, grounded

twenty of these prohibitions on the allegedly ancient common-law rule that no

man is bound

In the 1630S the

to accuse himself criminally.

High Commission and

the Star Chamber,

which employed similar procedures, reached the zenith of

their

powers. But in 1637 a flinty Puritan agitator, John Lilburne, refused the oath. His well-publicized opposition to incriminatory

questioning focused England's attention upon the injustice and illegaHty of such practices. In 1641 the

nated by Puritans and

Long

Parliament, domi-

common lawyers, condemned

against Lilburne and others, abolished the Star

High Commission and prohibited

the sentences

Chamber and

ecclesiastical authorities

the

from

administering any oath obliging one "to confess or to accuse himself or herself of any crime."

Common-law

courts, however, continued to ask incriminating

questions and to bully witnesses into answering them.

The

rudi-

mentary idea of a right against self-incrimination was nevertheless lodged in the imperishable opinions of Coke, publicized by Lil-

burne and the Levellers, and firmly associated with Magna Carta.

The

idea

was beginning

to take hold of men's minds.

again the catalytic agent. At his various

Lilburne was

trials for his life, in his

testimony before investigating committees of Parliament, and in his ceaseless tracts,

he dramatically popularized the demand that a

right against self-incrimination be accorded general legal recognition.

His career

illustrates

how the

right against self-incrimination

developed not only in conjunction with a whole gamut of

fair

procedures associated with "due process of law" but also with

AMENDMENT

FIFTH

demands

for

199

::

freedom of conscience and expression. After Lil-

burne's time the right became entrenched in EngHsh jurisprudence, even under the judicial tyrants of the Restoration. state

became more secure and

As the

as fairer treatment of the criminally

accused became possible, the old practice of bullying the prisoner

answers gradually died out.

for

By the early eighteenth century the

accused was no longer put on the stand evidence in his

permitted to

own

tell

behalf even

his story,

if

at all;

he wished

unsworn.

The

he could not give although he was

to,

prisoner was regarded as

incompetent to be a witness for himself. After the

first

quarter of the eighteenth century, the English

history of the right centered primarily ination of the suspect

and the

upon the preliminary exam-

legality

of placing in evidence vari-

ous types of involuntary confessions. Incriminating statements

made by against

suspects at the preliminary examination could be used

them

even though not made

at their trials; a confession,

under oath, sufficed gated under oath.

to convict. Yet suspects could not

One might be ensnared

be interro-

into a confession by the

sharp and intimidating tactics of the examining magistrate; but there was no legal obligation to answer an incriminating ques-

tion—nor, until 1848, to notify the suspect or prisoner of his right to refuse answer.

One's answers, given in ignorance of his

right,

might be used against him. However, the courts excluded confes-' sions that had been

made under

duress.

Only involuntary confes-

sions were seen as a violation of the right.

Lord Chief Baron Geof-

Law ofEvidence (1756)

declared that although a

frey Gilbert in his

confession was the best evidence of guilt, "this Confession must be

voluntary and without compulsion; for our

any

Man

to accuse himself;

and

in this

Law of Nature," which commands Thus, opposition

Law

we do

.

.

.

will not force

certainly follow that

self-preservation.

to the oath ex officio

ended

in the

common-

law right to refuse to furnish incriminating evidence against oneself

even when

all

formalities of

common-law accusation had

first

200

been

fulfilled.

The

::

FIFTH

prisoner

AMENDMENT

demanded

that the state prove

against him, and he confronted the witnesses

him. to

The

Levellers, led

who

its

case

testified against

by Lilburne, even claimed

answer any questions concerning themselves,

a right not

if life, liberty,

or property might be jeopardized, regardless of the tribunal or

government agency directing the examination, be islative,

or executive.

The

it

judicial, leg-

Leveller claim to a right against self-

incrimination raised the generic problem of the nature of sovereignty in England and spurred the transmutation of

Carta from a feudal

relic

Magna

of baronial reaction into a modern bul-

wark of the rule of law and regularized

restraints

upon govern-

ment power.

The

claim to this right also emerged in the context of a cluster

of criminal procedures whose object was to ensure criminally accused.

It

play for the

fair

harmonized with the principles that the

accused was innocent until proven guilty and that the burden of

proof was on the prosecution.

It

was related

to the idea that a

man's home should not be promiscuously broken into and for evidence

of his reading and writing.

It

was intimately con-

nected to the belief that torture or any cruelty in forcing a

expose his guilt was unfair and

illegal. It

lips

man

to

was indirectly associated

with the right to counsel and the right to have witnesses

of the defendant, so that his

rifled

on behalf

could remain sealed against the

government's questions or accusations.

It

was

at first a privilege

of

the guilty, given the nature of the substantive law of religious and political crimes.

But the

right

became neither

guilty nor a protection of the innocent. It

a privilege of the

became merely one of

the ways of fairly determining guilt or innocence, like itself; it

became part of due process of the

principle of the accusatorial system. ciety benefited

It

law, a

trial

by jury

fundamental

reflected the view that so-

by seeking the defendant's conviction without the

aid of his involuntary admissions. Forcing self-incrimination

thought to brutalize the system of criminal justice and untrustworthy evidence.

to

was

produce

AMENDMENT

FIFTH

Above

all,

was, in

who were

or

origins, unquestionably an invention

later,

of political crimes

and breach of parliamentary

not, the offense icies,

its

guilty of religious crimes like heresy, schism,

and nonconformity and, tious libel,

201

the right was closely linked to freedom of speech and

religious liberty. It

of those

::

like treason, sedi-

privilege.

More

often than

was merely criticism of the government,

its officers.

The

right

was associated, then, with

pol-

its

guilt for

crimes of conscience, of belief, and of association. In the broadest sense

was not so much

it

a protection

of the

even the

guilty, or

innocent, but a protection of freedom of expression, of pohtical liberty,

and of the right

to

worship as one pleased.

The symbolic

importance and practical function of the right was certainly a

And

tled matter, taken for granted, in the eighteenth century.

was part of the heritage of queathed to the English Yet, the right

had

liberty

settlers in

be

to

won

which the

John Wheelwright,

in

in every colony, invariably it

in

America was evident

tried in

it

law be-

America.

conditions similar to those that generated

glimmer of the right

common

set-

England.

under

The

first

in the heresy case of

1637 in Massachusetts. In colony after

colony people exposed to the inquisitorial tactics of the prerogative court

of the governor and council refused to answer to incrim-

inating interrogatories in cases heavy with political implications.

By

the end of the seventeenth century the right was unevenly

recognized in the colonies.

As the English common law increasingly became American law and the

legal profession

Americans developed

grew

in size,

competence, and influence,

a greater familiarity with the right. English

law books and English criminal procedure provided a model.

Edmond

earliest discussion

sum,"

From

Wingate's Maxims of Reason (1658), which included the of the

maxim "nemo

to Gilbert's Evidence, law

in popularity that in

tenetur accusare seip-

books praised the

right. It so

grew

1735 Benjamin Franklin, hearing that

a

church wanted to examine the sermons of an unorthodox minister, could declare: "It was contrary to the

common Rights of Mankind,

202

no

Man

::

FIFTH

AMENDMENT

being obliged to furnish Matter of Accusation against

himself." In 1754 a witness parried a Massachusetts legislative investigation into seditious libel

maxim, which he

by quoting the well-known Latin

freely translated as

"A Right of Silence

as the

Priviledge of every Englishman." In 1770 the attorney general of

Pennsylvania ruled that an admiralty court could not oblige people to

answer interrogatories "which may have a tendency to crimi-

nate themselves, or subject

them

to a penalty,

it

being contrary to

any principle of Reason and the Laws of England."

becomes so profoundly accepted association with

common

Magna

that

it

When

a right

has been hallowed by

its

Carta and has been ranked as one of the

rights of man deriving

from the law of nature,

genuflection and praise, not critical analysis; and

it

it

receives

gets exalted as a

fundamental liberty that receives constitutional expression.

CHAPTER NINE

Double Jeopardy

T

^HE LEGAL PRINCIPLE

including

that a person should not

be tried more than once for the same offense old and widespread. Variants of

mentary form, can be found

Roman, Talmudic, and canon

tinian's Digest

it,

is

very

usually in rudi-

in early legal systems,

law.

In the

Emperor Jus-

of the sixth century, government was

commanded

not to permit "the same person to be again accused of crime of

which he had been acquitted." In English found

in the English

Yearbooks of the

King James Version of the Bible tion shall not rise

up

a

law,

glimmerings can be

later fifteenth

century

The

succinctly stipulates that "afflic-

second time." Sir Edward Coke affirmed

stunted form of the principle against double jeopardy

a

when he

endorsed the general notion that a previous attainder could bar

a

subsequent prosecution; he also believed that a previous acquittal based on a plea of self-defense in a homicide case protected the individual against being tried again.

Coke

to the effect that a

But there

are mutterings in

former acquittal does not always prohibit

subsequent prosecution in nonhomicide

cases.

Since the time of Coke, the concept of double jeopardy has been associated in England primarily if not exclusively with criminal 203

204

cases,

and

::

DOUBLE JEOPARDY

took the form of allowing a defendant to plead that

it

because he had been tried previously for some offense, he could not

be tried for

it

whether he pleaded

again. It did not matter

auterfois

acquit (acquitted previously) or auterfois convict (convicted pre-

viously) because in either case, retrial

was

illegal.

Bench, England's highest criminal court, endorsed

The

King's

a spacious

con-

cept of double jeopardy in a case of 1696. After defendants were acquitted on a charge of breaking and entering, they were accused

again for the same conduct but on the charge of larceny, a different crime. Nevertheless, their previous acquittal formed the basis for the court's ruling that they could not be indicted for larceny or on

any charge "for the same fact" or deed. Sir William Blackstone in his Commentaries

English law of the matter

when he

former acquittal was "grounded on

common

law of England, that no

ardy of his

life,

more than once,

summed up

the

declared that the plea of a this universal

man

is

to

maxim

of the

be brought into jeop-

same offence." In Coke and

for the

Blackstone the ban on double jeopardy applied as a protection only in felony cases,

the right far

although a

more

maxim

broadly: "It

is

that

became popular protected

a rule of law that a

man

shall not

be twice vexed for one and the same cause." English courts did not expatiate on the reasons for the rule against double jeopardy

beyond the principle

not be vexed again for the same cause. to

make

that a person should

No doubt the courts sought

the most economic use of their time by refusing to re-

hear a case that had previously been decided.

Any

alternative

course would have produced onerous multiple actions, exposed the innocent to egregious harassment, and put the public and

accused persons to the cost of litigation and the stigma of persistent prosecutions.

In the American colonies the principle against double jeop-

ardy was well known, and the fact that jeopardy of

life

it

was not restricted

or even to felony cases allowed

its

to

application in

DOUBLE JEOPARDY

205

::

broader form. In Massachusetts Bay, the ban even affected non-

The Body

criminal trespasses. affirmed,

"No man

shall

and the same crime, codified

its

of Liberties of 1641 generously

be twice sentenced by

offense, or trespass."

laws in 1648,

it

restricted the

civil justice for

one

But when Massachusetts ban against double jeop-

ardy to criminal cases by providing that every action in "criminal causes" shall be entered into record and "not afterwards brought again to the vexation of any man." This formulation was the

model

for similar

middle colonies

ones in other

New

England colonies and

in the

as well.

In the South, too, the law was similar. Maryland was the state, in 1639, to declare that all its free

of Englishmen as

if they still

rations of that sort were

English

common

law,

first

people possessed the rights

resided in the mother country. Decla-

common among

the colonies, and the

of course, guaranteed protection against

double jeopardy. As a reflection of that

fact, in

1669,

when John

Locke, the great philosopher, framed a constitution for the Carolinas that never shall

went into

effect,

one section affirmed, "No cause

be twice tried in any one court, upon any reason or pretence

whatsoever." Virginia allowed a criminal defendant to plead that

he had been tried for an offense previously, whether acquitted, convicted, or pardoned for

it;

however,

if

an indictment was dis-

missed as defective, the individual could be indicted and tried for the offense, because the dismissal of the defective indictment signified that

In

New

he had not previously been

York

City, several

in jeopardy.

men were

the laws governing bread-making, and

charged with violation of

when

the same

men were

subsequently accused of the same offense, in 1700, they were "dis-

charged from the presentment of the Grand Jurors, having been fined before for the

same

fact." In

an Albany case of 1758, the

court discharged a prisoner on learning that he had been fined and

had paid the

fine for virtually the

about the same time,

when

same

Britain

offense. In another case of

and France were

at war, a

man

206

::

DOUBLE JEOPARDY

named Cunningham was accused of trading with

the

enemy and

supplying privateers. Although he had committed more than one

crime by the same

act,

he pleaded that he was being exposed to

double jeopardy, which was "oppressive, contrary to the

government and the the case

is

spirit

of

and reason." The outcome of

dictates of law

unclear.

In 1770 Alexander McDougall, a popular leader of the patriot

party during the years of controversy with Great Britain, was

summoned before the bar of the New York Assembly to answer for a tract lambasting its

weak

policies

toward Britain. McDougall,

already under arrest for seditious libel and pending

court,

trial in

refused to answer any questions, not only because he might tend to

incriminate himself but also because the legislature, having found the tract to be criminal, exposed his

argument he was imprisoned

bly's term,

him

to

for the

double jeopardy. Despite

remainder of the assem-

but his case popularized the rights he claimed against

compulsory self-incrimination and double jeopardy. The historians of law enforcement in colonial

not

many double

itous that "there be

no double prosecutions." to

show

jeopardy allowed him to

make

sufficiently

New York say that there

jeopardy cases because royal

numerous

officials

were

Yet, the cases

were solic-

were

that subjecting a person to double effective a claim that his rights

been breached, even though none of the great English

documents (Magna Carta, Petition of Right,

Bill

had

liberty

of Rights) sanc-

tioned his claim.

In several other states, courts prohibited double jeopardy and disallowed the second acquittal. In

1784

trial

of an individual

who showed

New Hampshire became

the

a previous

first state to

pro-

vide constitutional protection against double jeopardy by banning a

subsequent

trial for

ticular offense. In

the law

it is

for the

same

anyone previously held not guilty of a par-

1788 the Pennsylvania high court stated: "By

declared that no offense;

and

yet,

man it is

shall

be twice put in jeopardy

certain that the enquiry,

now

DOUBLE JEOPARDY

::

207

proposed by the Grand Jury, would necessarily introduce the oppression of a double

but

law,

I

trial.

think, likewise,

Nor

is it

upon

merely upon the maxims of

principles of humanity, that this

innovation should be opposed." In the same year Maryland was the

first state to

recommend

new

that the

federal Constitution

should be amended to include a provision banning a "second

trial

after acquittal."

When the First Congress met, James Madison, introducing the amendments that became the Bill of Rights, proposed: "No person shall

be subject, except in case of impeachment, to more than one

trial

or one punishment for the same offence

the fact that only two states had

which had no precedent son's proposal

.

.

."In view of

recommended such

in the Articles

a provision,

of Confederation, Madi-

shows how conscientiously he undertook the task of

framing amendments in the nature of a

more than was necessary merely insufficient checks existed

bill

of rights.

to satisfy a public

He

did far

alarm that

on the new government.

During the short debate on Madison's proposal, Egbert Benson of New York claimed that

opposed right

it

it.

According

to

sought to protect, for

defendant to appeal.

its

meaning was "doubtful," and so

Benson, it

it

seemed contrary

did not even allow a convicted

The purpose of

jeopardy, he argued, was

to the very

protecting against double

"humane," because

its

objective was "to

prevent more than one punishment" for a single offense. Accordingly,

Benson moved

the words "one

to

amend Madison's motion by

trial or."

striking out

Roger Sherman of Connecticut agreed,

saying that as the clause was proposed by Madison, a person found guilty could not get an arrest of judgment against himself in order to obtain a

second

trial.

Although

a person acquitted at trial could

he was convicted he should be

never be tried a second time,

if

entitled to a second trial, said

Sherman,

if

"anything should ap-

pear to set the judgment aside." Madison's proposal deprived

him

New Hampshire

also

of that opportunity. Samuel Livermore of

208

Opposed exposing

a

DOUBLE JEOPARDY

person to the danger of more than one

the same offense, even it.

::

was guilty but evidence

if he

trial for

prove

failed to

Nevertheless, Benson's motion lost by a large majority. So did a

motion

"by any law of the United States"

to insert

The House

offence."

The

half of

last

"be twice put in jeopardy of

When

"same

then adopted Madison's proposal.

Senate struck the

cution."

after

it,

substituting in

and limb

life

in

its

place

any public prose-

the proposal emerged from a joint conference

committee, the words "in any public prosecution" had also been

There being no record of the debate, we cannot be sure

struck.

whether

a

predominate meaning of the double jeopardy provision

existed in the

meant

minds of Congress. In

to apply to all crimes, even

would have limited

it

all

likeHhood, the clause was

though the phrase

only to felony cases.

"life or

The Framers

limb"

of the Bill

of Rights were rarely exact with respect to their intentions and as often as not failed to say what they contemplated or

mean what

they said.

The double specific. Its "life

jeopardy clause, for example,

is

inappropriately

Framers did not mean "limb" when they referred

to

and limb," unless they contemplated the highly unlikely pos-

sibility that

Americans might one day authorize tearing people

apart as a punishment for crime or chopping off arms and legs.

The

constitutional phrase should be "life or liberty" rather than

"life or

limb."

superfluous.

The

The

reference to jeopardy of limb

infliction of a

punishment

is

misleading or

that results in loss of

limb would surely constitute a violation of the Eighth

Amend-

ment's guarantee against "cruel and unusual" punishment. Yet, that very phrase, "cruel

what

it

says either, because

well as cruel; any tutional

by

and unusual punishment," cannot mean

punishment that

ban whether or not

itself,

such as the

unconstitutional.

punishment need not be unusual

it is

is

cruel

also unusual; unusual

electric chair

as

would meet the consti-

when

first

punishment

invented,

is

not

DOUBLE JEOPARDY

No

in

view of the Fifth Amendment's due

process clause. Life can be taken is

209

claim against the constitutionality of the death penalty

makes constitutional sense and

::

if one

received due process of law

not exposed to double jeopardy. Yet limb cannot be taken,

despite the language of the Fifth

taken yet

life

can be, the reason

is

Amendment. that the Fifth

provides for indictment by grand jury "capital" crime.

answer for a

The language

capital, or

is

that

if a

If limb

cannot be

Amendment

person

is

also

accused of a

no one should be "held

otherwise infamous crime."

to

The text of the

Fifth

Amendment, even when seemingly

clear.

The text aside, overwhelming evidence shows that the Fram-

ers

and

ratifiers

explicit, is

simply not

approved of the death penalty for certain offenses.

Similarly, the double jeopardy clause seriously lacks clarity.

CHAPTER TEN

The Double Jury System.

Grand and Petty

K

ING HENRY II, who governed England from to

1

189, was a man of powerful

spirit.

He

trial

1

154

and reforming

Reformation of the machinery of

the expense of

most achievements.

will

justice at

by battle was one of his fore-

tremendously increased both the

civil

and

criminal jurisdiction of his royal courts in order to enhance his

revenues and his authority. Henry regarded crimes against persons

and property were

to

realm that

as offenses against the peace of his royal

be tried in his courts. Before his time, crimes were tried

in the courts of the lords in

whose immediate

jurisdiction they

had occurred.

The istrative

inquest, a device once used by the

and

financial inquiries,

became

a

dicts or truthful answers to questions of

or innocence. ends.

Henry

He made

equitable

it

II

crown only

for

admin-

means of obtaining

ver-

ownership and of

guilt

relied on the inquest to accomplish his

available to litigants as an alternative

and more

form of proceedings than any form of ordeal. From the

inquest developed our double jury system: the grand jury of accusation and the petty jury of trial. Trial by jury was a form of trial available only in the king's courts 210

and eventually triumphed over

DOUBLE JURY SYSTEM Other forms of decision based

trial

on

because

it

was the only one that offered

Clarendon, the

sheriff, acting at

is,

men

to speak the truth

twelve presumably

them under

oath,

a

or any other ordeal.

fire

Under an ordinance of 1164 known could swear twelve

211

than on divine miracles, as in the

facts rather

instance of trial by water or

::

as the Constitutions of

the instigation of the bishop,

of the countryside to give a verdict— that

on

knew

issues involving property rights.

The

the facts of the case, so the sheriff put

and then,

in the presence

of the

litigants, royal

judges required the twelve to decide whether a tenant had been

No

dispossessed.

one could be evicted or dispossessed of his land

without the prior approval of a jury verdict.

him

restored

as the legal

to possession of the land.

remedy

According trial

by

for a

person

Thus

who had

to an ordinance of 1179

A

verdict in his favor

trial

by jury emerged

faced dispossession.

any person challenged to

battle in a case involving a proprietary right might, for a

price payable to the crown, obtain a writ transferring jurisdiction to a royal court; he thereby consented to having the question settled ness.

by a jury that was carefully chosen

The

sheriff selected four knights,

to ensure disinterested-

who

in turn

chose twelve

others from the neighborhood where the disputed property was located,

clared

and those twelve, mainly from their own knowledge, de-

which party had the better right

to

it.

If the jury sustained

the applicant's plea, the appeal that could lead to

quashed.

What

stituted in

some

in essence

was

a jury's verdict

trial

by battle was

was therefore sub-

instances for ordeals.

Before the emergence of the jury that tried criminal cases, the

grand jury developed as the institution that made accusations. assize (ordinance) of Clarendon, 1 1

66, provided a foundation for the

on

The

king instructed the

circuit, or eyre, to take jurisdiction

serious crimes presented to

in

grand jury and prompted a

variety of significant procedural reforms.

royal judges

The

which Henry promulgated

them by sworn

inquests,

over certain

which were

212

DOUBLE JURY SYSTEM

::

representative juries of various localities. 1

176 twelve

men from

each township or

vill

sheriff to attend the

became the grand

Under an ordinance of

each hundred of the county and four from

of the hundred were to be

pubhc

jury,

The

eyre.

sixteen,

were enjoined

summoned by

which eventually

to inquire into all

committed since the beginning of the king's reign and under oath

some

cases

mere presentment was tantamount

tried at first

developed

crimes

to report

persons accused or suspected by the vicinage. In

all

ishment, but generally

was

the

first,

it

to a verdict of ban-

was no more than an accusation, which

by ordeal,

later

by

jury. Trial

by jury

in civil cases

providing a model that could be copied later in

criminal cases.

By

the time of

becoming

Magna

Carta the inquest in

fairly well established as the trial jury,

civil

cases

was

although not in

criminal cases. Civil disputes of virtually any description, not just

those involving property, might be referred to the verdict of local jurors if both parties to a dispute consented to the procedure.

grand inquest that had been provided

in

Clarendon presented criminal accusations; they were deal, but a provision of Magna Carta

The

1166 by the assize of tried

by or-

ensured that no one could be

put to an ordeal unless formally accused by the jury of present-

ment before

the royal judges on circuit.

of Magna Carta did not guarantee cases

was

still

unknown

indictment and battle or ordeal,

When

trial

in 121 5.

trial

The celebrated by

At best chapter 29 ensured

by whatever was the appropriate

test,

mode

that

whether

must precede sentence.

the Fourth Lateran Council in 121 5 forbade the par-

ticipation of the clergy in the administration of ordeals,

that

chapter 29

jury; its use in criminal

it

divested

of proof of its rationale as a judgment of God. Conse-

quently, the ordeal died as a

form of trial

some other procedure was needed

to take

in its

western Europe, and place.

Unlike Conti-

nental nations and the Church, which turned to the Inquisition,

England found

in its

own form

of the inquest a device at hand

DOUBLE JURY SYSTEM would

that

fill

the gap

by

left

ordeals.

213

::

The

absence of heresy in

England and therefore the absence of a papal inquisition allowed the inquest to evolve into a

means of bringing accusations and

judging them.

When was

grand jury made an accusation, ascertaining

a

a necessity,

and the royal judges on

help to the inquest, whose

The circuit, because

all

1

truth

circuit

duty turned for

members were sworn

to tell the truth.

or eyre, was a great event, a sort of county parliament,

the parties were present— the local nobles and bishops,

the knights and freeholders, and

nance of

its

numerous

juries.

176, from every hundred of the county

As

in the ordi-

a jury

of twelve

was present and from every township four representatives. Sur-

rounded by the various

juries, the

judge in a criminal case could

take the obvious course of seeking the sense of the community.

The

original jurors of

presentment were already sworn, presum-

ably

knew most about

the facts, and were a representative group.

Their indictment of a prisoner had not necessarily voiced their belief in his guilt;

it

affirmed the fact that he was

pected. Although practice varied considerably at

began

to ask the jury of

or not guilty likely

on

its

presentment

accusation.

than not to sustain

its

The

to

commonly first,

the judges

render a verdict of guilty

jury of presentment was

indictment, even though

it

more

had sworn

only that the accused was suspected and not that he was

The

sus-

guilty.

judges usually swore in the representatives of the surround-

ing townships and asked whether they concurred.

The

jury of

another hundred might be conscripted to corroborate the verdict. In effect a body of the countryside gave the verdict.

The

practice

of enlarging the original jury of presentment or seeking a series of verdicts tury.

from different

What became

juries

was

common

in the thirteenth cen-

the petty jury was thus initially larger than the

grand jury but was too cumbersome. Twelve was the number of the presenting jury and twelve the jury in ally

many

civil cases;

gradu-

only twelve jurors were chosen to try the indictment, and they

214

DOUBLE JURY SYSTEM

::

always included within their

The

presentment.

number some of the

original jury of

unfairness inherent in that practice and the

theory that the accused must consent to his jury eventually led to a separation of the grand jury and the petty or

The

trial

trial jury.

jury developed in criminal cases as a result of per-

mitting the prisoner to challenge

members of

grand jury who were impaneled to serve on his

the presenting or

trial jury.

Henry de

Bracton, writing about 1258, noted that the defendant might object to the inclusion

of

and malicious accusers, and Britton,

false

near the end of the thirteenth century, said that the defendant

might object

if

who sought

the jurors included enemies

struction or had been suborned by the lord

who sought

his dehis land

"through greediness of the escheat." In 1305 Prince Edward,

later

on behalf of a friend who had been indicted

for

murder, requested the judge to provide a jury that excluded

all

Edward

II,

acting

members of the accusing

jury.

dants challenged petty jurors

With increasing frequency, defen-

who had

first

served as their in-

were

dictors; judges resisted the challenges, because indictors

more

mons

likely to convict.

For that very reason

in the 1340s the

Com-

twice protested against the inclusion of indictors, but not

until 1352 did the king agree to a statute that gave the accused a

right to challenge

members of the

petty jury

who had

participated

in the indictment.

As

a result of the statute of 1352, the

custom of requiring developed.

By then

a

became

dif-

the size of the grand jury had been fixed at

should be proferred. There

whom is

reason that twelve rather than trial jury.

seemed cumbersome and over, twelve

juries

unanimous verdict from twelve petty jurors

twenty-three, a majority of

the size of the

two

and function. From about 1376 the

ferentiated in composition

A

decided whether accusations

no adequate explanation

some other number

for the

originated as

jury of

more than twelve might have

a smaller

one unrepresentative. More-

was a hallowed number because of the twelve

tribes of

DOUBLE JURY SYSTEM Israel

215

and the twelve apostles of Christ. Somehow twelve

constituted most early juries and the

By

::

number

men

stuck.

the middle of the fifteenth century twelve-member juries

were beginning to hear evidence that was gathered in court,

though the jurors

still

continued to obtain facts from their

knowledge or inquiry As

late as the

the jurors to visit witnesses at their their testimony, but jurors

on the evidence given

1450s

it

homes

was

still

in the

al-

own

common

for

country to take

were also beginning to pass judgment

in their presence in court.

More

important,

the fiction developed that they were objective triers of fact whose verdict was based so, juries

on the truth

as best they could determine.

Even

were costly and time-consuming. In cases of petty crime,

they thwarted society's interest in swift and cheap justice, with the result that

by the end of the

fifteenth century Parliament autho-

rized magistrates to decide any case not involving a felony or major

crime. Magistrates therefore developed

ment when began

to

the offenses before

summary powers of judg-

them were

exempt most new crimes,

if

petty,

and Parliament

not very serious, from the

ambit of juries, allowing magistrates to decide misdemeanor cases without

A

juries.

substantial

magistrates.

number of

summarily before

cases were tried

At the time of Blackstone, the number of petty of-

fenses approximated one

hundred and constituted most

Blackstone mentioned only a few by

name and

cases.

referred readers to

books on justices of the peace for "a vast variety of others."

One of

the most widely used manuals was Justice of the Peace by Richard

Burn,

first

pubHshed 1755. Almost two thousand pages

dealt with

the law of summary jurisdiction by magistrates.

Judges governed of petty offenses.

of not

guilty,

trials

but not verdicts of guilt except in cases

A judge could dismiss charges or direct a verdict

but only

juries,

which did not have

sons, could convict if a case involved

life

to provide rea-

or limb. Judges were

moderators, ideally nonpartisan, and had an obligation to maintain

216

decorum

in the

DOUBLE JURY SYSTEM

::

courtroom while jurors heard and decided

Judges might address the

jury, advise

on the evidence, explaining certain facts.

But

it

on the

and focusing

law,

even comment

a jury's attention

in felony cases judges could not intrude

jury's task of determining

and judges could not jurors, for the

it

most

which

facts

cases.

should influence

its

on

on the

verdict,

direct the jury to return a guilty verdict;

part,

determined the nature of punishment

for guilt.

Defendants could challenge without cause

(the accused

dence

in

"open court," wrote Sir John Fortescue

men, persons of good

and hearing of a

character, neighbours

committed, apprised on the circumstances acquainted with the

as thirty-

was not yet allowed any witnesses) gave

fifteenth century, "in the presence

cially as

many

help ensure fairness. Witnesses for the

five potential jurors to

crown

as

lives

in the

jury,

where the

in question,

evi-

mid-

of twelve fact

was

and well

and conversations of the witnesses, espe-

they be near neighbours, and cannot but

know whether

they be worthy of credit, or not." Juries were supposedly representative of the community, not that twelve class, or

men

could possibly include

members of every

sect,

group; yet the theory was that they were a cross-section of

the public rather than an organ of any part of it, and no one could

be excluded from the panels from which jurors were selected because of membership in some particular group. Jury service was a function of citizenship, a privilege as well as a duty.

The

rule that a jury's verdict of guilt

must be unanimous sup-

posedly reflected the notion that the jury spoke for the community.

The

rule itself derived

from

that a verdict agreed to able. Possibly the rule

cause

it

a case of 1367 in

a court ruled

by eleven of twelve jurors was unaccept-

of unanimity originated and prevailed be-

was consistent with the obligation of the prosecution

prove guilt beyond a reasonable doubt. also

which

The need

for

to

unanimity

encouraged jury deliberation: the majority has to convince

DOUBLE JURY SYSTEM

::

217

do so

dissenters in order to be able to render a verdict. Failure to results in a

hung

Of course,

jury.

trial

by the

local

community could be

trial

by

local

prejudice; moreover, juries could be improperly influenced in a variety of ways.

with the

Some

early juries reached results not in accord

probably because of prejudiced direction from the

facts,

bench or threats from partisans of one of the verdict could result in the fined, imprisoned,

dicts

punishment of

and subjected

parties.

jurors.

A

wrong

They could be

to forfeiture of property for ver-

proved to be wrong. They could also be punished when

judges, appointees of the

crown and

still its

lackies, disagreed

with

a verdict that conflicted with the crown's wishes.

Punishing jurors for their verdict died out after Bushell's case of 1670.

The

case developed out of the prosecution of William

Penn and other Quakers generation

earlier,

the

for the

first

crime of disturbing the peace.

Quakers did

and the quiet worship of other Christians

in fact disturb the

A

peace

whom the early Quakers

regarded as anti-Christs. But by 1670 the Quakers were becoming law-abiding quietists

who wanted

only to be

let

alone and no

longer disrupted the religious services of others. But Anglicans,

who

returned to power as the established church after the demise

of the Cromwells, remembered Quakers with considerable hostility.

Parliamentary legislation, dictated by Anglican

flicted fines

hostility, in-

and imprisonment on the supposedly dangerous opin-

ions and practices of Quakers. until the Toleration

Only Anglican worship was lawful

Act of 1689. Before that

act,

the

mere assem-

bly of any dissenters for the purposes of worship not authorized by

law constituted a crime. Accordingly

who had been

when Penn and

the others,

dispossessed from their meetinghouses, congre-

gated in public places to conduct peaceable worship, they were

apprehended,

The

jailed,

and prosecuted.

court often judges that tried Penn and his fellow Quakers

verbally harassed the defendants

and demanded

a verdict of guilty

218

from the jury

if the

::

DOUBLE JURY SYSTEM

jury concluded that the Quakers had

as in fact they had.

But the

Quakers had met, refused their foreman,

The

met at all,

acknowledging that the

jurors, while

by

to obey; their verdict, as delivered

was "Guilty of speaking

in

Grace Church Street."

presiding judge, the recorder of London, ridiculed that ver-

dict as equivalent to saying nothing at

all,

and the judges sought

to

persuade the jury to return a verdict of "guilty" but the jury was recalcitrant.

Despite being told that

its

was

verdict

useless, the

jury persistently repeated itself even against efforts by the court to

The

bully the jurors.

dismissed

You

shall

shall

"till

court threatened that the jury would not be

you bring

which the court

in a verdict

be locked up, without meat, drink,

not think thus to abuse the court.

the help of God or you shall starve for

We

it."

will accept.

fire

and tobacco. You

will

have a verdict by

Nevertheless, the jurors

persisted even after two days and nights without heat, food, or drink. Because the jury

fined

all

would not change

the jurors and jailed

One member

of the

jury,

them

Edward

habeas corpus from the Court of

freedom of the for the court,

jurors.

verdict, the court

Bushell, sued for a writ of

Common

Pleas and

won

the

Chief Justice Sir John Vaughan, speaking

upheld Bushell and his fellow

in a technical sense,

its

until they paid their fines.

jurors.

The judgment,

was reversed, because the matter was criminal

and Vaughan's court, which was the high court lacked jurisdiction to decide

it.

in civil matters,

But the principle decided by the

case prevailed: the jury's verdict was final and jurors could not be

challenged or punished for

it.

Thereafter, juries were able to de-

cide cases as their convictions dictated, without being subject to attaint. In

John Peter Zenger's

case, tried in

counsel referred to Bushell's case by

New York in

name when

1735, his

advising the jury

to find a verdict agreeable to their consciences rather than in ac-

cord with the law as laid

down by

the presiding judge.

Regardless of the faults of the criminal justice system, the pris-

oner in a criminal case knew the charges against him, confronted

DOUBLE JURY SYSTEM and had freedom

his accusers,

tions; furthermore,

counsel, lack of witnesses

on

many disadvantages— lack of

their

own

behalf, lack of time to

trial

before a jury was su-

judged by any standard known

William Blackstone

But

in settling

explana-

of the jury sitting in judgment.

prepare their defense— yet the public

day. Sir

own

he could question and argue with the prosecu-

Criminal defendants suffered from

fair,

219

to give to the jury his

tion's witnesses in the presence

premely

::

summed up when

and adjusting

world of that

in the

he wrote:

a question of fact,

when

entrusted to

any single magistrate, partiality and injustice had an ample range

in; either

by asserting that

to

be proved which

more artfully suppressing some circumstances,

is

not

field to

so,

or by

stretching and vary-

ing others, and distinguishing away the remainder. Here, therefore, a

competent number of sensible and upright jurymen, chosen by

from among those of the middle rank, tigators of truth,

will

lot

be found the best inves-

and the surest guardians of public

justice.

For

the most powerful individuals in the state will be cautious of com-

when he knows may be examined and decided by

mitting any flagrant invasion of another's right, that the fact of his oppression

twelve indifferent men, not appointed until the hour of that,

when once

redress

it.

the fact

is

ascertained, the law

trial;

and

must of course

This, therefore, preserves in the hands of the people that

share which they ought to have in the administration of general justice,

and prevents the encroachments of the more powerful and

wealthy citizens.

The grand

jury, like the trial jury,

evolved into a bastion of

popular rights rather than a crown agent.

grand

juries protected individuals

whom

By

refusing to indict,

prosecutors would have

liked to put to trial without a well-founded accusation. Eventually

the theory developed that no one should be indicted without a

prima

facie case

ing by

itself,

of guilt— enough proof of guilt to convict

if stand-

unrebutted. Sir John Hawles, in his tract The English-

man's Rights (1680), championed grand juries as defenders of individual freedom because they protected against

unfounded or

220

::

DOUBLE JURY SYSTEM Hawles argued

spiteful prosecution. Further,

government agencies could punish grand

The

prisonment.

no courts or

that

juries

by

fines or

Shaftesbury for treason despite the urgings of Charles

EngHshmen's respect

im-

grand jury of 1681 to indict Lord

refusal of a

grand jury

for the

as

II

enhanced

an institution that

shielded from vindictive or malicious motives of the state;

how-

Shaftesbury fled the country to avoid an indictment by a

ever,

more compliant grand

jury in another county.

Lord chancellor of England

Sir

John Somers declared

aptly entitled tract of 1682, The Security of Englishmen

"Grand

juries are

our only security, in as

be drawn into jeopardy by unless such a

much

as

our

s

lives

in his

Lives:

cannot

the malicious crafts of the devil,

all

number of our honest countrymen

in the truth of the accusations."

Henry Care's

shall

be

satisfied

English Liberties,

or,

The Free-Born Subject's Inheritance (1698) vigorously repeated the

Grand

jurors did

more than stand between

prosecutor and the

trial jury;

they also acted as representatives of

same

point.

their locality

new

laws,

the king's

by denouncing governmental abuses, recommending

and even administering statutory

law.

Blackstone's

Com-

mentaries explained that grand juries stood between the liberties of

the people and the prerogative of the crown, thus permitting the

grand jury cally

to

thwart executive impulses to imprison or exile

politi-

obnoxious men.

In the American colonies, where grand juries were chosen

by such law-enforcement

officers as sheriffs or constables or

county court judges, the jurors were

by

usually large freeholders or

prosperous townfolk. In most of the colonies, prosecutors tried criminal cases that had

first

involved an accusation by a grand jury.

Hawles's Englishman's Rights, Somers's Security of Englishmen Lives,

and Care's English

Liberties

were reprinted

s

at least twice

each in America and circulated throughout the colonies, serving as

manuals on the functions and authority of grand grand jury been able to prevail

in

New

juries.

Had

a

York, Zenger would never

DOUBLE JURY SYSTEM

221

::

have been tried for seditiously libeling the provincial governor.

Two

grand

juries refused to indict

him, forcing the crow^n pros-

ecutor to proceed by independently filing in court the accusation against

him known

as an "information."

information by himself— that

is,

The

prosecutor

filed

an

he made the decision without

grand jury endorsement to prosecute.

The

earliest

American grand

juries

met

in the

towns of Mas-

sachusetts in accordance with an act of the provincial legislature

ordering town meetings to select grand jurors. These early grand juries presented scores

some of the magistrates of Massachusetts. Town meet-

ing even

ings elected the jurors,

one

year.

They were

power and towns for sales,

glect,

laxity in

who

after 1641

free to investigate

were obligated to serve

any abuses of governmental

and roads,

for questionable land

Addi-

for other failures to serve the public properly.

grand

for

town governance. Thus, grand jurors reproved

failing to repair bridges

and

tionally,

and scores of suspected offenders, includ-

juries presented individuals for their

abuse or ne-

such as giving short weight when selling commodities, not

properly grinding grain, violating the Sabbath, getting intoxicated in

pubHc, or using foul language.

Connecticut was responsible for an innovation that became influential.

Instead of leaving presentments to town meetings,

Connecticut relied on local prosecutors to

which was

colonies county courts, rather than

an "information,"

town meetings,

grand jurors who brought the accusation

some

file

a sworn, written accusation before a court. In

in

most

selected the

most serious

cases; in

colonies, sheriffs selected panels of prosperous freeholders;

in still other colonies, justices

of the peace

named

the grand jurors.

Usually grand juries attended county courts, but their functions

remained diverse. They not only brought accusations of crime; they also undertook a variety of investigations on behalf of county courts and even administered various laws. Practice varied, of course, in each colony. In

New Jersey,

grand

juries assisted

county

222

DOUBLE JURY SYSTEM

::

courts in levying county taxes. In Pennsylvania grand juries in-

spected public works such as court houses, order to determine whether any

officials

and roads,

jails,

in

had been neglectful. In

Georgia grand juries reflected a variety of complaints on behalf of the public against the government.

Grand

juries also

became

a favorite instrument for

Americans

Grand

to express their protests against British colonial policies.

jurors were able to protect

Americans

in

some colonies because of

banned prosecutions except upon

provincial statutes that

a pre-

sentment originating with a grand jury or except upon an accusation by a prosecutor

the endorsement of a grand jury.

crown prosecutors had been

Previously, selves,

who had

who should be put

to trial

Americans would not have been able effectively as they did if

grand

prosecutors and

jury.

would not

trial

by

indict rioters

Boston and three years

able to decide,

by merely

juries

filing

to challenge royal

in

who

fear

of retaliation, no one would

as

jurors, for example,

1765 destroyed the stamps in

later refused to indict the

tors

powers

had not stood between royal

American grand

who

by them-

an information.

newspaper edi-

libeled the royal governor of Massachusetts. Indeed, for testify before a

grand jury

in cases

involving recent British policies affecting the American colonies.

As

a result, those policies failed at the

crown

officials

enforcement

level, leaving

impotent.

In Massachusetts grand juries were a patriotic American in-

strument for harassing tactics that aimed to stymie British Consequently, Britain sought to evade grand the British leader, persuaded the

juries.

policies.

Lord North,

House of Commons

to

change

the charter of Massachusetts by preventing town meetings except

when

called

by the royal governor. Moreover, the

thorized Massachusetts sheriffs to appoint

all

Commons

au-

jurors. Previously

the people in their town meetings had elected grand jurors

when-

ever they were needed. Lord North censured grand juries for

opposing British measures. In turn, the people of Massachusetts

DOUBLE JURY SYSTEM vehemently denounced Britain and

::

223

in circular letters to other

colonies declared that the appointment of grand jurors by sheriffs

constituted tyranny.

Throughout Massachusetts, town meetings,

which repudiated the new system aged law enforcement

as subversive of justice, encour-

officers to ignore the

law.

The towns

which those

in attendance

who complied with

the law were

persisted in holding their meetings at elected grand jurors. Sheriffs

new

coerced into reconsidering their fealty to British policy.

Grand

jurors in

most colonies defied royally appointed judges

who had encouraged them illegally

opposed

to indict their

neighbors for having

Britain. In several colonies,

grand

juries issued

public statements intended as propaganda for the patriot cause,

and some patriot judges indulged grand and petty

juries alike. In Philadelphia, a

nounced the payments and collected

in equally offensive charges to

from the

tea tax,

salaries

of royal

grand jury de-

officials

from revenues

and the grand jury even advocated

boycott against English products.

Grand

juries

a

commonly advo-

cated intercolonial actions to redress grievances against Britain.

Like

trial

juries,

the grand juries of the prerevolutionary era,

claiming the rights of Englishmen, curbed the enforcement of objectionable acts by government

officials.

American resistance and generally served

Even during the War

for

ment but also the

juries

as popular

promoted

spokesmen.

Independence, grand juries continued

their multiple civic functions.

well as indicted offenders.

Grand

They governed

their localities as

They investigated not only law enforce-

physical conditions of roads, bridges, and ferries;

they supervised the prices of commodities; and they fixed the rates

of taxes, audited public records, and generally compelled local

governing bodies to be more responsive to public needs and to

meet

regularly.

From the earliest

possible date, English colonists in the

can wilderness enjoyed

trial

by jury

in criminal cases.

Ameri-

Royal in-

structions of 1606 for the governance of Virginia provided that

224

DOUBLE JURY SYSTEM

::

offenders be tried by jury before the governor and council.

More-

over, the Virginia charter of 1606 contained a provision that

was

repeated in later charters of Virginia and in the charters of virtually all other colonies, guaranteeing colonists the rights of

glishmen as

if

they

still

resided in the mother country. In

En-

Mas-

sachusetts, for example, as soon as courts began to operate, they

worked with

trial juries.

recognition in 164 1

The

in the

authorized parties in

right to trial

by jury received formal

Massachusetts Body of Liberties, which

civil suits, as

well as persons accused of

crime, to choose whether to be tried by judges or by a jury, and also

authorized challenges to potential jurors for cause. If a jury could

not reach a verdict,

its

members were

free to consult with

person for advice. In some sparsely settled tried cases involving

minor

areas, six

any

member juries

infractions, such as trespass or

drunk-

enness, or involving small amounts, usually less than ten pounds.

But

virtually all colonial charters possessed a clause similar to that

in the charter of

West

New

Jersey,

which

specified that unless

men

of the neighborhood,

convicted by a jury consisting of twelve

no one could

lose

life,

limb, liberty, or property in a civil or crimi-

nal case.

In the most celebrated case of colonial history, the Peter Zenger in

New

York

trial

of John

for the offense of seditious libel, in

1735, his counsel successfully challenged the partiality of jurors

whom Governor Cosby, selected.

Knowing

the target of Zenger's newspaper, initially

that the law

was against

his client, Zenger's

counsel played to the jury above the head of the court, urging the jury to acquit.

The

trial

judge had accurately instructed the jurors

that they should apply the law as defined

by the court and merely

return a verdict based on their judgment whether the defendant

had

in fact

used the words attributed to him; the court would then

decide as a matter of law whether defendant's language constituted the crime charged.

But Zenger's counsel boldly informed

the jury that they, not the court, were the judges of the law as well

DOUBLE JURY SYSTEM as the facts, false, his

and

if

::

225

they did not understand Zenger's words to be

pubHcations were not criminal.

If,

court's instructions, the jury believed that

that

is,

contrary to the

Zenger had published

the truth, they should return a general verdict in his favor by

deciding on the law as well as the as a court of public opinion. cial

But

facts.

Thus, counsel used the jury

if Zenger

had attacked the provin-

assembly instead of a despised royal governor, he would have

been summarily convicted before the bar of the house for breach of parliamentary privilege, with the result that he would have been

imprisoned and forgotten by

posterity. Instead,

he was tried by a

jury that acquitted because he symbolized a popular cause. ger's counsel did not

have to worry that one man's truth

Zenis

an-

other's falsehood or that political opinions are not necessarily sus-

ceptible to proof as truth or falsehood. Moreover, a jury in a case of seditious libel

is

a court

public prejudice, and

is

of public opinion, often synonymous with hardly an adequate instrument for measur-

ing the truth of an accusation against the government, or

its officials,

its policies.

When

judges were dependent tools of the government, a jury

of one's peers or neighbors might seem to be a promising bulwark against the tyrannous prosecution of free expression.

But

juries,

with the power of ruling on the guilt or innocence of alleged criminal

judges

libels,

could be as influenced by prevailing passions as

when deciding

the fate of defendants

who had

voiced un-

popular views. In England, where the power of juries in

libel cases

was secured by Fox's Libel Act of 1792, the most repressive prosecutions, with few exceptions, were successful. In

one verdict of "not guilty" was returned tions

in the

America only

numerous prosecu-

under the Sedition Act of 1798, which entrusted criminaHty

to the jury

and admitted truth

principles scarcely protected

as a defense.

Thus, Zengerian

freedom of the press so long

law cosseted the concept of seditious

libel.

The power

decide the whole issue, the law as well as the

facts,

as the

of juries to

by returning a

226

::

DOUBLE JURY SYSTEM

general verdict did not expand the bounds of freedom. Moreover,

the power of legislatures to punish alleged breaches of parlia-

mentary

privilege,

which included unwanted

criticism, restricted

those bounds.

By

the era of the American Revolution

bly the

most

common

right in

all

trial

the colonies.

by jury was proba-

When

Parliament

imposed the Stamp Act of 1765, authorizing admiralty courts enforce

its

provisions,

John Adams

to

voiced the American reaction:

"But the most grievous innovation of all,

is

the alarming extension

of the power of courts of admiralty. In these courts, one judge presides alone! fact are

No juries have any concern

there!

The

law and the

both to be decided by the same single judge." Thus, the

Stamp Act Congress protested essential rights

and

liberties

the denial of one of "the most

of the colonists," and the Boston town

meeting of 1772, which framed "A List of Infringements and Violations of Rights," included

trial

by

jury,

which

it

hailed as "the

grand bulwark and security of English property." Colonists vehe-

mently denounced admiralty courts because they worked without juries. Selectively

quoting from Blackstone's Commentaries, the

colonists praised his remarks to the effect that trial

by jury was the

"sacred palladium" of English liberties that might be undermined

by new or

different

methods of trial.

Americans formally claimed

trial

by

a jury of the vicinage as a

right of Englishmen whenever they apprehended that Britain

threatened that right, as

1774 authorized the lated the acts.

The

when

trial in

first

a provision of the Coercive

England of certain persons who vio-

Continental Congress in 1774 approved of

an intercolonial "Declaration of Rights" based on natural English Constitution, and the provincial charters. tion of Rights included "the great

The

And when Congress

cause,

its letter

sought

law, the

Declara-

and inestimable privilege of be-

ing tried by their peers of the vicinage" according to the law.

Acts of

to enlist

common

Canadian support

for its

to the inhabitants of Quebec, in 1774, specified trial

DOUBLE JURY SYSTEM by jury trary

as the preserver

of life,

liberty,

227

::

and property against

arbi-

and capricious men. In the 1775 Declaration of the Causes

Up Arms,

and Necessity of Taking

Congress censured Britain

for

having passed statutes "extending the jurisdiction of courts of admiralty and vice-admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of jury, in cases affecting

both

life

by

and property." In the Declaration

of Independence, Congress criticized George in

trial

III for

"depriving us,

many cases, of the benefit of trial by jury."

When Virginia framed its constitution in do

so, it

had

"speedy

first state to

all

criminal prosecutions the defendant

trial

by an impartial jury of his vicinage,"

declared that in

a right to a

1776, the

language echoed by Pennsylvania. Delaware's constitution described juries as the triers of facts and added that no person ac-

cused of crime should be found guilty unless he had received a

"speedy

by an impartial

trial"

and North Carolina used speedy setts

trial

jury.

Maryland copied

similar language.

that phrasing

Vermont guaranteed

a

by "an impartial jury of the country," and Massachu-

framed a provision that influenced the writing of the

Bill

of

Rights, saying that the legislature should not subject any person to a capital or

infamous punishment without

Hampshire adopted the same language. Every constitution secured

trial

by

jury.

trial

by

jury.

state that

New

framed a

No other personal right received

protection from the constitutions of so

many

states.

The North-

west Ordinance of 1787, that measure of genius which thwarted the development of colonial problems

nent by guaranteeing statehood to

by

on the American contiguaranteed

trial

At the Philadelphia Constitutional Convention of 1787 the

first

territories, also

jury.

right recognized bill

was

trial

by

jury.

The convention

did not frame a

of rights but included several rights within the body of the

Constitution.

The Committee of Detail,

thanks to the recommen-

dation of John Rutledge of South Carolina, proposed

trial

by jury

228

DOUBLE JURY SYSTEM

::

in criminal cases in the state that

was the

locale of the offense.

James Wilson of Pennsylvania and Charles Pinckney of South Carolina lent their support to such a provision, which eventually

became lodged civil

in Article III, section 2.

The right to trial by jury in

cases received belated recognition

Massachusetts claimed that

civil juries

judges. Pinckney cooperated with Article III, that

would secure

but the Convention

let

the

trial

when Elbridge Gerry of

guarded against "corrupt"

Gerry

in urging a provision, for

by jury "as usual in civil cases,"

recommendation

die

when

others ob-

served that jury practices throughout the nation were not uniform so that

no one could be sure of the meaning of the phrase "as

usual." Gerry,

declared that

be

refused to sign the Constitution, inaccurately

established a "tribunal without juries, which will

it

Star-chamber as to Civil cases." George Mason of Virginia,

a

who few

who

belatedly lamented the omission of a

specific

recommendations, including

During the controversy over the tion,

bill

trial

of rights, offered a

by jury

in civil cases.

ratification of the Constitu-

Richard Henry Lee of Virginia was one of the

first

of several

Anti-Federalists to declare misleadingly that the Constitution, ratified,

would abolish

trial

by jury

in civil cases.

if

That was one of

the most frequently trumpeted Anti-Federalist charges.

Lee

in-

voked Sir Edward Coke, Sir Matthew Hale, Sir John Holt, and Blackstone "and almost every other legal or political writer" to

prove that

trial

by jury

in civil cases

was an

essential right neces-

sary to maintain freedom and to keep courts from trary. Patrick

jeopardized

Henry promiscuously

trial

by

jury,

and the

cases ought not be abolished.

bulwark of routinely in

An

alleged that the Constitution

essay by an

newspaper grieved

liberty," trial

arbi-

influential minority report of the

Anti-Federalists in Pennsylvania declared that

a Philadelphia

becoming

by jury

trial

by jury

anonymous

in civil

writer in

for the death of "that sacred in civil cases,

and so

it

went

Anti-Federalist speeches and publications. "Cen-

tinel," a prolific Philadelphia

newspaper

essayist, predicted that

DOUBLE JURY SYSTEM

229

::

the federal courts would "supersede the state courts" because of the Constitution's failure to provide for civil jury

The mi-

trials.

nority in Maryland, with greater restraint and good sense, urged a

provision that "there shall be a

by jury

trial

in all criminal cases

according to the course of proceeding in the state where the offence

committed." That recommendation did not distort the

is

Constitution's provision for

trial

by

jury, as

most Anti-Federalists

pamphlet published

did. "Aristocrotis," the author of a

Pennsyl-

in

vania, distorted facts for the sake of irony. Predicting that

gress

would deprive the people of trial by

absurd a right, he claimed that

jury,

because

Con-

was so

it

allowed twelve ignorant and

it

probably ilHterate plebians to be judges of law, which had the authority of lawyers

bian Patriot,"

who

who was

sat in legislatures

probably

Mercy

and

courts.

A "Colum-

Otis Warren, writing in a

Boston newspaper, insinuated that an "inquisition" would be the result of abolishing trial

by jury

in civil cases.

The

fullest

and best

repudiation of such Anti-Federalist hysteria was Alexander ilton's

long essay in The Federalist, No. 83.

differences in state practices establish courts

Some

and therefore

He

Ham-

discoursed on the

and on the power of Congress trial

of the hysteria regarding

by

to

jury.

trial

by jury may be explained

by the Anti-Federalists' reaction to attempted subversions of trial by jury

in several states. In Respublica

legislatively convicted for a felony

v.

Doan, the defendant was

and outlawed; when he was

captured in 1784, the state ordered his execution, but he de-

manded

a trial

state judges,

by

jury, as

guaranteed by the state constitution.

however, ruled that

by jury when he

fled

in effect rejected trial

from custody and became

hanged without having had

Rhode

Doan had

a trial

by

The

a fugitive.

jury. In Trevett

v.

He was

Weeden, a

Island case of 1786, at issue was a state act that compelled

the observance of a state paper-money act that

ing to accept paper

Weeden

money at par with

refused acceptance but

made anyone

refus-

specie triable without a jury.

demanded

trial

by

jury.

The

court

230

::

DOUBLE JURY SYSTEM

declined to decide the issue by ruling that

it

lacked jurisdiction,

but some of the judges censured the statute because provide for

trial

by

jury.

In Bayard

v.

it

failed to

Singleton, decided in

Carolina in 1787, the high court of that state supported jury against a legislative attempt to

ing property rights. it

to

The

legislature

undermine

it

summoned

North

trial

by

in a case involv-

the judges before

determine whether they had committed a malpractice by

refusing to give effect to a statute that subverted

trial

by

jury,

and

the court boldly held void the measure that adversely affected the right to trial

by jury on behalf of one of the

parties.

In the First Congress, Representative James

mended amendments Rights.

One

valuable states

for

became the

to the Constitution that

Bill

of

of his proposals, which he conceived to be "the most

amendment

in the

whole

from infringing on various

list,"

unknown

reasons.

Among

would have prohibited the

rights, including trial

criminal cases. That one passed the it

Madison recom-

House but

by jury

in

the Senate rejected

the proposals that received con-

gressional and state endorsement was one that

became the Sixth

Amendment, guaranteeing

trial

tial

a

speedy and public

jury of the vicinage, and another that

Amendment, guaranteeing

trial

by an impar-

became the Seventh

by jury in civil suits.

CHAPTER ELEVEN

The Eighth Amendment

T ir

f

^HE EIGHTH

Enghsh

the

bail

AMENDMENT

sive bail shall not

provides: "Exces-

be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted." Bill

The amendment

of Rights of 1689.

was intended

Its

duplicates a provision in clause banning excessive

to prevent the once-frequent judicial practice

of devising methods for keeping victims imprisoned indefinitely

without

trial.

Judges used to

fix bail at

impossibly high rates, far in

excess of a prisoner's capacity to raise. Parliament, in effect, re-

formed that situation when

it

enacted that punishment should

approximate the severity of the crime.

The

notion that punishment should not be barbarous or un-

duly severe but, rather, should be proportioned to the offense goes

back to the Old Testament. Leviticus 24:19-20 says, "If a injures his neighbor,

what he has done must be done

man

to him:

broken limb for broken limb, eye for eye, tooth for tooth. As the injury inflicted, so talionis

must be the injury suffered." This rule o^

found expression

numbered

in

Magna

Carta. Section 20 (later re-

section 14) stipulated that "a freeman shall be

for a small offence only according to the 231

lex

amerced

degree of the offence; and

232

for a grave offence

the offence."

A

he

EIGHTH AMENDMENT

::

shall

be amerced according to the gravity of

document of the thirteenth century required

amercements or

fines

that

should be "according to their offences" and

not "exceed the just penalty of the offence."

A fourteenth-century

document, purportedly copying the laws of Edward the Confessor of the eleventh century,

made

ble to physical punishments;

the policy it

on amercements applica-

provided that punishment should

be imposed "according to the nature and extent of the offence." In the mid-sixteenth century Parliament acknowledged that the

kingdom would be more secure if

laws did not

less,

inflict

Parhament directed

gibbeted.

Only

if the

subjects loved their king and

great penalties for disobedience; neverthe-

a small

that

murderers should be dissected and

number of offenses were

capital, yet in the

time of Henry VIII the death sentence was inflicted on about

seventy-two thousand people. As time passed, the number of capital

felonies increased until they reached about

fenses.

Death was

two hundred of-

actually inflicted in only a small proportion of

the cases, however, because the sentences were usually mitigated

by transportation either

to

America

or, later, Australia.

the books was savage, in practice far In a

The

law on

more moderate.

book of 1583 Robert Beale, the clerk of the Privy Council,

condemned "the racking of grievous

offenders, as being cruel,

barbarous, contrary to law, and unto the liberty of English subjects."

Beale was the

first

person to object to torture even when

authorized by the crown and one of the few Englishmen ever to object to "cruel" punishments. tion

was aimed

at excessive,

The

conventional English objec-

not cruel, punishments. In 161 5 the

Court of King's Bench, England's highest criminal court, censured as unlawful or extreme the punishment of a

having criticized an

officer

dungeon with no bed or

man who,

for

of the crown, had been thrown into a food. Imprisonment, the court said,

"ought always to be according

to the quality of the offence," a

point buttressed by a quotation from

Magna Carta. Thus, England

EIGHTH AMENDMENT

233

::

had long prohibited excessive or extreme punishments but never actually outlawed "cruel" punishments.

A

punishment could be

extreme without being cruel, as in the instance of a very long

imprisonment

for

If an offense

some

trifling offense.

was criminal, a man could not

limb, or property unless he had

first

suffer loss of

been convicted by a

he could not be tried without his consent.

The

jury,

life,

but

court always asked

an accused person whether he would "put himself on the coun-

try"— that

is,

agree to be tried by a

he refused to plead,

jury. If

because he feared the consequences of conviction, his consent was extorted by "punishment strong and hard," or peine forte

He was

stripped, put in irons

on the ground

et dure.

in the worst part

of

the prison, and fed only coarse bread one day and water the next.

Then

the refinement of "punishment" was added: he was slowly

pressed, spread-eagled

on

his

body

as

on the ground, with

as

he could bear "and then more."

pressing, exposure,

much

iron placed

The punishment by

and slow starvation continued

until the pris-

oner agreed to be tried or died.

The purpose

of peine forte

et

dure was not to extort a con-

fession or force a person to incriminate himself or others; the

purpose, rather, was simply to extort a plea.

The

whether the individual pleaded guilty or not

law did not care

only that he

guilty,

pleaded. In 1772 a statute provided that a prisoner standing to the

indictment of felony should be treated as

if

mute

he had been

convicted by a verdict or by a confession, thus ending peine forte et dure.

But the law permitted

tied together.

Not

until 1827

a prisoner's

thumbs

to

be painfully

was the rule altered

to direct the

who

stood mute or

court to enter a plea of not guilty for a prisoner refused to plead.

Sir William Blackstone in his Commentaries on the

Law

of En-

gland proudly declared that the "humanity of the English nation has authorized, by tacit consent, an almost general mitigation

of

.

.

.

torture or cruelty." English history, he said,

showed "very

234

::

EIGHTH AMENDMENT

few instances" of anyone being disemboweled or burned less first

deprived of sensation by strangling. Physical punish-

ments usually consisted of personal and

exile,

banishment, transportation, or

by imprisonment. England confiscated property,

loss of liberty

real,

and imposed

ployment, or inheritance, and

England

it

also

office,

em-

sometimes mutilated or dismemfoot.

by

also stigmatized people

branding, and

on holding

disabilities

it

bered an offender by cutting off a hand or that

un-

alive

Blackstone added

slitting nostrils or

punished by imprisonment

at

by

hard labor, by

using the pillory, the stocks, or ducking stool, but England never

broke anyone's back on the wheel, or tied people to wild horses

which pulled them

apart, or buried

stone's time, capital

than

1

them

punishment was

alive.

still

Even

so, in

Black-

the penalty for

more

60 offenses. Blackstone believed that the severe punish-

ments imposed

in the

Bench accounted that the Eighth

Lord Chief

time of James

II

by the Court of King's

for the provision in the English Bill of Rights

Amendment

Justice

George

copied.

He had

in

mind

the fact that

Jeffreys sent 292 prisoners to their

deaths and brutally punished hundreds of others.

He

sentenced

841 prisoners to be sent to the West Indies as slaves for not less

than ten years. In one case a young boy criticized the

named Tutchin who had

government was convicted of seditious

libel;

he was

sentenced to be imprisoned for seven years and to be flogged

through every market town

in his shire

which meant every other week was

for seven years.

The punishment

later mitigated.

Though to

during each of those years,

English

common-law

courts did not sentence anyone

be tortured, the monarch could authorize the rack by special

royal warrant.

The

rack in the

Tower of London was

frequently

used, especially during the time of the Tudors. Moreover, English

law had permitted such grisly punishments as "pulling out the tongue," slicing off the nose, cutting off the genitals, and, for capital crimes, boiling to death.

Torture was thought to mean only

EIGHTH AMENDMENT

235

::

the infliction of cruel punishment for the purpose of coercing a

suspect to confess a crime.

EngHsh judges tended

sometimes abused defendants

in court

to

be harsh and

by overawing and threaten-

ing them, but judges also boasted that torture was illegal at

mon

com-

law and that they preferred guilty parties to escape punish-

ment rather than convict innocent ones. When

Thomas Smith,

Sir

writing about 1565, declared that torture "to put a malefactor to excessive paine, to

fellowes or comphces,

common-law did.

make him confesse of is

not used in England," he meant that

courts never employed

The monarch

himselfe, or of his

it.

But prerogative courts

and the Privy Council or

judicial

its

Court of Star Chamber, could and did authorize

arm, the

penalty for high treason was particularly gruesome, though

not

come

torture.

within the ambit of the

The

victim, if male, was

alive; his genitals

disemboweled,

common

it

did

law's understanding of

hanged but cut down while

still

were cut off and burned before him; he was

still alive,

and then he was cut into four parts and

beheaded. That penalty was

last inflicted in

1817, though behead-

ing and quartering were not prohibited untfl 1870. victed of treason were sentenced to being burned

they were usually

The

torture.

first

Women

alive,

strangled until unconscious.

con-

although

The burning

of women ended in 1790, and whipping them ended in 1841.

Branding and nose punishments

slitting as wefl as flogging

for lesser crimes. In

were

inflicted as

1630 Alexander Leighton, a

Puritan clergyman

who had

fined the staggering

amount often thousand pounds, defrocked by

libeled the Anglican bishops,

the highest ecclesiastical court, unmercifully

whipped

until almost

dead, pilloried, one ear nailed to the pillory and then cut

cheek branded, and his nose

sHt; a

week

later

he

was

off",

suff'ered the

his

same

mutilations on the other side of his face, and he was imprisoned for the rest of his

life.

William Prynne, another Puritan martyr,

maligned theater productions that included women, though the

queen occasionally acted on the

stage.

Prynne was mistreated

in

236

::

EIGHTH AMENDMENT

the pillory, branded on the forehead, and suffered the cutting off of his ears;

he was also heavily fined and sentenced to prison for

Others suffered similar punishments.

The Long

hfe.

Parliament freed

Leighton, Prynne, and others in 1640. Although the Star

Cham-

ber was also abolished, England did not by law then or later prevent excessively severe punishments. In 1685, after the abortive rebellion of the duke of Monmouth,

Chief Justice George Jeffreys of the King's Bench conducted his

"Bloody Assize" against captured

rebels, for

which James

awarded him the lord chancellorship. But the provision of the

II

Bill

of Rights of 1689 against "cruel and unusual punishments" had

nothing to do with a hostile parliamentary reaction to Jeffreys's conduct.

Henry

The

chief prosecutor during the Bloody Assize was Sir

Pollfexen, a close friend

not view the Bloody Assize as

and supporter of Jeffreys who did Pollfexen was one of the

illegal;

chief backers of the Bill of Rights. Its provision against cruel and

unusual punishments derived mainly from the reaction to the case of Titus Oates.

Oates underwent punishments that even then seemed excessive or unduly severe, although he was not mutilated as Leighton and

Prynne had been.

A

of the Church of England, Oates was

cleric

the author of the infamous Popish Plot hoax, an accusation that

English Catholics, led by Jesuit priests, intended to assassinate Charles

II.

In the national hysteria that followed Oates's sensa-

tional accusations, fifteen people, including the leader of the Jesuit

order in England, were disemboweled, quartered, and beheaded for high treason.

When

evidence of Oates's hoax was revealed in

1685, he was indicted for perjury

Two

of his four judges, Francis

Withens and George Jeffreys, expressed regret

that the law did not

permit Oates to be hanged for perjuries that had resulted deaths of so

many innocent

be defrocked, to pay

a fine

people.

The

in the

court sentenced Oates to

of two thousand marks (approximately

ten thousand dollars), to be

whipped from Aldgate

to

Newgate, a

EIGHTH AMENDMENT

237

::

distance of about a mile and a half, and, after a day's intermission, to

be whipped from Newgate to Tyburn, another two miles, and

then to be imprisoned for annually. Oates's case

is

life

as well as

be pilloried four times

the only one in which contemporaries

described his punishment as "cruel" as well as extreme or excessive,

even though severe floggings and sentences of life imprison-

ment were not unusual. Following the Revolution of 1689, Oates was released, and he petitioned Parliament for redress. His judges initially contended

was deserved because

that his sentence

in innocent deaths.

A

majority of the

his perjuries

had resulted

House of Lords agreed, but

several dissenting lords argued that the

judgment against Oates

had been erroneous, that the secular court could not defrock

a

clergyman, and that the severe whippings and the sentence of

imprisonment

for life in a case of perjury

were "barbarous," "in-

human," "unchristian," and "unjust." With Oates majority of the

who had

in

mind, the

House of Lords, including the common-law judges

sentenced him, declared that "excessive bail ought not to

be required nor excessive fines imposed, nor cruel nor unusual

punishments

Despite Oates's whippings, he had not

inflicted."

undergone any physically brutal treatment

whipping was not cruel

as

Leighton had, and

as a matter of law. Indeed,

whipping con-

tinued as a punishment in England well into the twentieth century.

However, the House of the

Commons

House of Lords, and

agreed with the dissenters in

as a result the English Bill of Rights of

1689 outlawed cruel and unusual punishments. In America, colonial Virginia in 161

sentenced a soldier to lose

rank, have his sword broken, stand in the pillory with both his ears nailed,

and pay

amount— or

a fine

of one hundred pounds sterling— a huge

suffer having

both ears cut

off.

Section 46 of the

Massachusetts Body of Liberties of 1641, drafted by Nathanael

Ward of Ipswich,

we

allow

cruell."

This

declared that "for bodilie punishments

amongst us none that are inhumane Barbarous or

238

was the

EIGHTH AMENDMENT

::

American ban on cruel punishments. Nevertheless,

first

Massachusetts required robbers, especially highwaymen, to be

burned on the forehead and

some

in

cases suffer

imprison-

life

ment. Horse thieves as well as other thieves were branded and flogged. Generally speaking,

bly

more

punishments

in

women were

and

hanged, not burned, for the crime of witchcraft.

Whipping was

the most

common punishment, though humiliating and a variety of public

penalties like the ducking stool, the pillory,

penances such as the scarlet

On

America were proba-

lenient than in England. Mutilations were rare,

were also common.

letter

the other hand, the provision of the 1689 Bill of Rights on

excessive bail and fines and cruel and unusual punishments was

widely copied in America. Several

including Virginia and

states,

Pennsylvania, added that punishments ought to be moderate.

Maryland stipulated

that sanguinary laws ought to be avoided

consistent with the safety of the state and

and unusual punishments apply judicial sentences.

made

to legislative

on cruel

the ban

enactments as well

South Carolina required punishments

proportionate to crimes. Six of the tionally prohibited cruel

first

to

as

be

thirteen states constitu-

and unusual punishments, and

a seventh

did so by statute.

New Hampshire on punishment:

most

fully

"All penalties

nature of the offence.

No

provided a constitutional section

ought

to

be proportioned to the

wise legislature will

punishment to the crimes of theft, forgery and the do

to those of murder

ing severity

is

affix like,

the same

which they

and treason; where the same undistinguish-

exerted against

all

offences; the people are led to

forget the real distinction in the crimes themselves; and to

the most flagrant with as lightest dye.

little

compunction

For the same reason

both impolitic and unjust.

The

as they

section of

its

do those of the

a multitude of sanguinary laws

true design of

being to reform; not to exterminate, mankind." constitution,

commit

New Hampshire

all

is

punishments

And

in another

banned magistrates

EIGHTH AMENDMENT and courts from demanding excessive

::

239

bail or sureties,

imposing

excessive fines, or inflicting cruel and unusual punishments.

In the Northwest Ordinance of 1787, the Congress of the federation provided a

bill

Con-

of rights with a clause saying, "All fines

be moderate, and no cruel or unusual punishments shall be

shall

That same Congress, however,

inflicted."

Henry Lee of

proposals by Richard

rejected a variety of

Virginia to frame a

bill

rights for the nation as well as for the northwest territories.

of

One

of Lee's proposals would have prohibited "cruel and unusual

punishments." During the controversy over the ratification of the Constitution, a Massachusetts delegate objected to the Constitution because

it

did not prohibit Congress from inflicting cruel and

unusual punishments. "Racks and gibbets," he predicted, "may be

amongst the most mild instruments of their description." In Virginia, Patrick

gress

Henry and other

Anti-Federalists claimed that

Con-

would prescribe "tortures" and "barbarous punishments"

as

well as excessive fines.

The

Pennsylvania minority, also expecting

the worst, proposed a

bill

of rights whose provisions outlawed

infliction

of cruel and unusual punishments. North Carolina,

York, and

Rhode

mendations

for

New

Island also ratified the Constitution with recom-

amendments, among them one

that

would ban

cruel and unusual punishments.

When

the Eighth

Amendment was

being framed in the First

Congress, one member, Samuel Livermore of

New

Hampshire,

argued that death by hanging was sometimes necessary, moreover that

some

ears cut

off"enders deserved to be

off".

He hoped

whipped and even have

those punishments would

still

their

be possible

and not come within the prohibition of cruel and unusual punishments. Representative James Madison, posals that

became the

Eighth Amendment.

Bill

of Rights,

It said

when introducing the pro-

off'ered

one that became the

that excessive fines

unusual punishments "shall" not be

inflicted.

and cruel and

Madison was per-

sonally responsible for the imperative verb "shall," using

it

in

240

place of

its

::

EIGHTH AMENDMENT

universal flabby predecessor, "ought."

The

Senate

accepted Madison's proposal verbatim.

Cruel and unusual punishment referred to methods of punish-

ment as v^^ell as their severity; they had possible and in

to

be as swift and painless as

no circumstances involve

form of torture. Death

itself

a lingering death or

any

was an acceptable punishment. Life

can be extinguished by the state

if it

provides due process of law to

convict an offender. Unusual punishment must always be cruel to

An

come under

the constitutional ban.

ment

administered speedily and humanely passes constitu-

that

is

tional muster. offense.

But punishment must

A conventional punishment,

unusual or novel punish-

also

be proportioned to the

such as whipping, could not

be so excessive as to become a form of cruelty. Imprisonment for

many

years would be excessive punishment for a petty crime.

CHAPTER TWELVE

The Ninth Amendment,

Unenumerated Rights

FOR

Amend-

175 years, from 1791 to 1965, the Ninth

ment lay dormant, in vitality to the

a constitutional curiosity

comparable

Third Amendment (no quartering of

troops in private homes) or to the privileges and nities clause

of the Fourteenth

Amendment

after the

Court had "interpreted" the meaning out of

The Court

terhouse Cases of 1873.

depended on

state,

it

in the

held that almost

immu-

Supreme Slaugh-

all

rights

rather than federal, protection. Obscurity

shrouded the meaning of the Ninth Amendment. One member of the

Supreme Court, Robert H. Jackson,

some

reflection,

Ninth Amendment were

The

speech made after

"still a

mystery."

year 1965 marks the beginning of Ninth

risprudence. For the

ment,

in a

acknowledged that the rights secured by the

first

Amendment

ju-

time the Court mentioned the amend-

at least in part, as a basis for

holding a government measure

unconstitutional. Justice William O. Douglas for the Court con-

fronted a state act that

made

the use of contraceptives criminal,

even when counseled by a physician treating a married couple.

From the First, Third,

Fourth, and Fifth

Amendments and

from the Ninth Amendment, Douglas derived 241

a "right

in part

of privacy

242

::

NINTH AMENDMENT

older than the Bill of Rights" with respect to the "sacred precincts

of marital bedrooms," and three justices believed that the Ninth

Amendment,

unfortified

by the "penumbras" and "emanations"

of other provisions of the Bill of Rights, supported the voiding of the offensive state act. Justice Arthur Goldberg for the three wrote a

concurring opinion based on the Ninth Amendment, buttressed

by the "liberty" guaranteed by the Fourteenth Amendment.

Within

fifteen years the

Ninth Amendment, once the subject of

only incidental references, was invoked in more than twelve hun-

dred state and federal cases in the most astonishing variety of matters. After the Court had resuscitated the

gants found

its

amendment,

charms compelling precisely because of

lack of specificity with respect to the rights that

"The enumeration

it

its

liti-

utter

protects. It says:

in the Constitution, of certain rights, shall not

be construed to deny or disparage others retained by the people."

Those who have

mament

relied

on

this

amendment

for constitutional ar-

include schoolboys and police officers seeking relief from

regulations that govern the length of their hair, citizens eager to

preserve the purity of water and

air against

environmental pollu-

ters,

and homosexuals claiming a right

tion

whether the Ninth Amendment was intended

to

be married.

nucopia of unenumerated rights produces as

The

to

ques-

be a cor-

many answers

as

there are points of view.

Oddly enough, those who advocate

a constitutional "jurispru-

dence of original intention" and assert that the Constitution "said

what

it

meant and meant what

it

said," are the ones

vigorously deny content to the Ninth

who most

Amendment and

to the

concept of a "living Constitution." Presumably they would not swear fealty to a dead Constitution, not even to a sort endorsed case.

by Chief Justice Roger Taney

static

in the

one of the

Dred Scott

Nevertheless they reject as absurd the idea that the Ninth

Amendment

could have been intended as a repository for newly

discovered rights that activist judges embrace.

NINTH AMENDMENT

The

fact that the

::

243

Framers did not intend most,

rights that litigants read into the

if any,

of the

Ninth and would have found

bizarre the notion that the Constitution protects any of those rights

is

really of no significance.

We must remember, after all, that

the Framers would have found absurd and bizarre

our constitutional law as well as of our

and

Hugo

society. Justice

breathed

life

into the

L. Black, in the very case of 1965 that

Ninth Amendment, could not

justification for the discovery

Constitution,

let

this Court's

it

members

Amendment. The

judicial

or out of it, he cautioned, "would

make of

a

day-to-day constitutional convention."

Figuratively, however, that

is

what the Supreme Court is— a con-

tinuous constitutional convention. it

The Court

were that since John Marshall's time,

tices in the history

much

find

of a right to privacy anywhere in the

alone in the Ninth

reading of rights into

most features of

politics, cities, industries,

if

not

has functioned as earlier,

of the Court have contributed so

and few

much

if

jus-

to the

Court's effectiveness as a constitutional convention as Justice Black, especially in his First and Fifth

To

Amendment opinions.

say that the Framers did not intend the Court to act as a

by interpret-

constitutional convention or to shape public policies

ing the Constitution

is,

again, to assert historical truth. However,

that truth does not invalidate judicial decisions that the failed to foresee;

dict

how

it

reveals, rather, their

human

Framers

incapacity to pre-

the system that they designed would work.

They

did not

expect the development of a judicial power that influenced public policies.

They

did not expect judicial activism whether conserva-

tive or liberal.

Nor

trative agencies, policy, national

did they foresee political parties, adminis-

overwhelming executive domination of foreign governance of the economy, foreign policy made

without knowledge of any elected members of the government, or

management of fiscal argument

policies

for or against

by the Federal Reserve Board. The

some

stitution progresses not at

all

judicial interpretation of the

by the allegation, even

con-

if verifiable.

244

::

NINTH AMENDMENT

Framers would have been shocked or surprised by such

that the

an interpretation.

The

Ninth Amendment are

starting points for interpreting the

the text itself and the rule of construction which holds that

meaning

a plain

Story said,

exists,

"The

of all instruments

first is,

it

if

should be followed. As Justice Joseph

and fundamental rule

to construe

in the interpretation

them according to

the sense of the

terms, and the intention of the parties." If a plain meaning does

not exist, the language of the text must be construed so as not to contradict the

sought in

its

document

understood from

its

any point, and meaning must be

nature and objects,

"its

know enough about about

at

purposes or in the principles that

the

putable fact that the

unenumerated

rights of the people.

Why

no more subject first

We

We

eight

They

lead

force of

first to

the indis-

terms protects

its

That opens the question.

The answer depends on

a preliminary

would the Framers have included an amendment

that acknowledges the existence of

the

scope and design."

as

making of the Ninth Amendment and

amendment by

are those rights.^

question:

embodies

historical context to apply these rules with considerable

confidence, wherever they might lead.

What

its

it

to

unenumerated

rights that are

abridgment than the rights that are specified

in

amendments?

must remember, by way of an answer,

that ratificationists,

including the most sophisticated of Framers, had

mously unpopular and weak argument

made

the enor-

that a bill of rights

was

superfluous in the United States because government derived

from the people and had only delegated powers. Alexander Hamilton,

James Wilson, Oliver Ellsworth, and James Madison, among

others, also argued that

no need

for a bill of rights existed be-

cause the government could not use

its

limited powers to en-

croach on reserved rights; no powers extended, for example, to religion or the press.

that

That argument shriveled against contentions

Congress might exercise

its

delegated powers in such a way

NINTH AMENDMENT that abridged unprotected rights.

::

245

The power

implemented

to tax,

by the ominous necessary and proper clause, could be used

to

destroy a critical press and might be enforced by general warrants

enabling the government to ransack

homes and businesses

for

evidence of criminal evasion of the revenue laws or for evidence of seditious publications.

The

Federalist,

No. 84, argued that particularizing rights was

"not only unnecessary in the proposed Constitution but would

They would

even be dangerous.

contain various exceptions to

powers which are not granted; and,

in this very account,

would

afford a colorable pretext to claim more than were granted." If no

power had been granted no need existed restricted.

to restrict the press,

Hamilton reasoned,

to declare that the liberty of the press

To make

ought not be

such a declaration furnished "a plausible pre-

tense for claiming that power" to violate the press.

A

provision

"against restraining the liberty of the press afforded a clear implication that a it

was intended had

tionists

power to

also

to prescribe

proper regulations concerning

be vested in the national government." Ratifica-

argued unconvincingly that a

bill

be "dangerous" because any right omitted from

sumed

of rights would

it

might be pre-

to be lost.

This argument proved

far too

much.

First,

it

proved that the

particular rights that the Constitution already protected— no religious test,

no

bills

of attainder,

among others— stood a

power

to violate

it.

trials

by jury

in criminal cases,

in grave jeopardy: specifying a right implied

Second, the inclusion of some rights in the

original text of the constitution implied that

all

unenumerated

ones were rehnquished.

James Wilson,

in the course of

arguing that a

bill

of rights was

not only unsuitable for the United States but dangerous as well,

made another tion:

"A

bill

well-publicized statement of the ratificationist posi-

of rights annexed to a constitution

is

an enumeration

of the powers reserved. If we attempt an enumeration, everything

246

that is,

is

not enumerated

NINTH AMENDMENT

::

is

presumed

that an imperfect enumeration

into the scale of government;

be given.

to

would throw

The consequence all

implied powers

and the rights of the people would be

rendered incomplete." Oliver Ellsworth advocated the same position.

Madison more

carefully declared in his state's ratifying con-

vention, "If an enumeration be

made of all our

implied that everything omitted

is

rights, will

it

not be

given to the general govern-

ment.?" He, too, thought that "an imperfect enumeration"— that is,

an incomplete

one— "is

Madison switched

dangerous."

to the cause of

adding amendments to the

Constitution that would protect individual liberties and allay the fears of people

who would

likely

support the Constitution,

a sense of security about their rights.

amendments ratification

to the

When

if given

he proposed his

House, he was mindful that proponents of

had warned that

might be dangerous

a bill of rights

because the government could violate any right omitted. During the course of his great speech of June 8, 1789,

reminded Congress of the need "the great

number of our

the Constitution because

We must, he added,

to satisfy the legitimate fears of

constituents

it

seemed

who

are dissatisfied" with

to put their rights in jeopardy.

"expressly declare the great rights of mankind

secured under this constitution."

Madison

Madison repeatedly

The

"great object in view,"

declared, "is to limit and qualify the powers of

Gov-

ernment, by excepting out of the grant of power those cases

which the government ought not lar

mode. They

[state

act, or to act

in

only in a particu-

recommendations] point these exceptions

sometimes against the abuse of the executive power, sometimes against the legislative, and in itself; or, in

some

cases, against the

community

other words, against the majority in favor of the minor-

ity." Clearly,

Madison was

upon government

referring to constitutional prohibitions

to protect not only the rights of the people but

even unpopular rights, such as those exercised by a minority that

needed protection.

NINTH AMENDMENT Defending

recommendation

his

bill

247

became the Ninth

that

Amendment, Madison acknowledged against a

::

that

major objection

a

of rights consisted of the argument that "by enu-

merating particular exceptions to the grant of power,

it

would

disparage those rights which were not placed in that enumeration;

and

it

might

follow,

by implication, that those rights which were

not singled out, were intended to be assigned into the hands of

Government, and were consequently insecure."

the General called that

"one of the most plausible arguments" he had ever

heard against the inclusion of a that he himself

although

had made, and

bill it

of rights.

had become

It

was an argument

a Federalist cliche,

self-destructed by virtue of the fact that the

it

stitution explicitly protected several rights, exposing

omitted— including, by Madison's description, "the great

mankind"— to governmental ing his

own

violation.

He was,

all

Conthose

rights of

therefore, answer-

previous objection, not one that had been advanced by

Anti-Federalists,

the Ninth

He

when he devised the simple proposal that became

Amendment.

possibility that

It

was, he said, meant to guard against the

unenumerated

enumeration of particular

might be imperiled by the

rights

rights.

By excepting many

from

rights

the grant of powers, no implication was intended, and no inference

should be drawn, that rights not excepted from the grant of powers fell

within those powers. As Madison phrased his proposal,

declared:

"The exceptions

constitution

made

[to

it

power] here or elsewhere in the

in favor of particular rights, shall not

be so

construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations

inserted merely for greater caution."

proposal.

No

proposals by creativity.

precise precedent for

Madison

that

Changing the

the same category.

it

So did

existed. It

stamped the

flaccid verb

on such powers, or

Madison improvised

Bill

as

that

was one of several

of Rights with his

"ought" to "shall"

fell

into

his selection of particular rights for

248

inclusion. its

No state,

for

::

NINTH AMENDMENT

example, had a due process of law clause in

own constitution, and only New York had recommended such a

clause in place of the

more

familiar "law of the land" clause. Either

phrasing carried the majesty and prestige of

Edward Coke had cess of law

Magna

Carta. Sir

taught, and Americans believed, that

due pro-

meant accordance with regularized common-law pro-

cedures, especially grand jury accusation and

which Madison provided

for.

trial

by

Madison also provided

radical alteration of the law of search

both of

the basis for a

and seizure by

the broadest possible language available at the time.

jury,

his choice of

Madison enu-

merated several rights whose constitutional protection was un-

common. Only New Hampshire by

its state

constitution provided

against double jeopardy, and only Massachusetts and

Vermont had

when

private prop-

constitutionally guaranteed just compensation

erty

is

taken for a public use. Madison's personal choice of the

phrasing of several provisions of the significant. Instead

Bill

of Rights also became

of saying that a person could not be compelled

to give evidence against himself,

Madison preferred

to say that

he

could not be compelled to be a witness against himself, thereby laying the basis for a future distinction between testimonial and

nontestimonial compulsion. Notwithstanding the personal touch

Madison imposed on

his

proposed amendments, he claimed that

he had recommended only the familiar and avoided the controversial.

He warned

against enumerating anything except "simple,

acknowledged principles," saying that amendments of a "doubtful nature" might damage the constitutional system.

The House did not take the time or trouble to review his recommended amendments with

the attention they deserved. In

mittee or as a result of debate, the right to Madison's

list,

com-

House added only one important

freedom of speech, which Pennsylvania had

constitutionally protected.

Some major

priately prefaced a bill of rights,

principles,

which appro-

were deleted, despite their com-

monplaceness. Madison, for example, had urged a statement that

NINTH AMENDMENT power derives from and

::

249

with the people, that government

rests

should be exercised for their benefit, and that they have a right to

change that government when inadequate to

statement of those purposes from his

lifted his

constitution and from national

its

bill

its

purposes.

own

He

state's

had

1776

1788 recommendations for inclusion in a

of rights. Those purposes expressed the idea that

governments are instituted the enjoyment of

life

and

to secure the people, said

liberty,

Madison, "in

with the right of acquiring and

using property, and generally of pursuing and obtaining happiness

and

safety."

The Declaration of Independence had made the points

more concisely and state constitutions)

but of obtaining

it.

but not with such generosity.

felicitously,

Virginia version proposed by

Madison (and adopted

in

spoke not only about the pursuit of happiness Conceivably, the committee that eliminated

Madison's prefatory principles believed them to be implicit streamlined version of what became the Ninth

enumeration

The

numerous

in this Constitution

in its

Amendment: "The

of certain rights shall not be

construed to deny or disparage others retained by the people."

Both houses approved.

The Ninth Amendment was problem of how

cationists'

to

a definitive solution to the ratifi-

enumerate the rights of the people

without endangering those that might be omitted.

ment was

also a device for

The amend-

Congress to avoid making a systematic

enumeration when framing the

Bill

of Rights. Framing

it

was not

high on Congress's agenda and, except for Madison's nagging insistence,

might not have been attempted

at all or, perhaps,

would

have been disposed of in an even more perfunctory fashion.

Ninth Amendment functioned

as a sweep-it-under-the-rug

The

means

of disposing as swiftly as possible of a task embarrassing to both parties

and delaying the organization of the government and

providing for serve to

its

revenues.

draw the

sting

And

the Ninth

Amendment

could also

from any criticism that the catalog of

personal freedoms was incomplete. Another conclusion one must

250

draw from the

NINTH AMENDMENT

::

text of the

amendment

rights in the preceding text

What

rights did the

is

that the enumeration of

was not meant

to

be exhaustive.

Ninth Amendment protect? They had

to

be either "natural rights" or "positive rights," to use the terms

Madison employed

speech of June 8

in the notes for the great

advocating amendments. In that speech he distinguished "the preexistent rights of nature"

from those "resulting from

a social

com-

pact." In his notes, he mentioned freedom of "speach" as a natural right, yet

he

ments. That

failed to provide for is

it

in his

recommended amend-

an example of Madison having acknowledged the

existence of important rights that he had not enumerated or believed to be included within the

of speech was in

human nature and

society. In

did not depend for

category.

its

Freedom

it

was inherent

existence

on organized

1775 Alexander Hamilton wrote that "the sacred rights

of mankind are not to be

musty

unenumerated

a right that preexisted government;

records.

They

rummaged

for

among

are written, as with a

volume of human nature, by the hand of the

old parchments or

sunbeam, divinity

in the

itself,

whole

and can

never be erased or obscured by mortal power." Another tough-

minded American

materialist

had led the way

John Dickinson, speaking of "the rhapsodized:

"We

to

such thinking.

rights essential to happiness,"

claim them from a higher source— from the

King of kings, and Lord of all the us by parchments and

seals.

They

earth.

They

are not

are created in us

annexed

of Providence, which establish the laws of our nature.

born with

us; exist

to

by the decrees

They

are

with us; and cannot be taken from us by any

human power without

taking our

lives.

In short, they are founded

on the immutable maxims of reason and

justice."

Such opinions

were commonplace. So, too, the directly related views expressed by Jefferson in the

preamble of the Declaration of Independence reflected commonly held principles. In 1822 John Adams,

who had been

a

member

of

the committee of Congress that Jeff"erson had chaired in 1776,

NINTH AMENDMENT

251

::

observed that there was "not an idea in

[the Declaration] but

it

what had been hackneyed." Jefferson asserted that whigs thought alike" on those matters. ration,

"all

The purpose

American

of the Decla-

he wrote, was not "to find out new principles, or new

arguments

.

.

.

but to place before mankind the

These views

the subject."

Amendment. Contrary

common

sense of

meaning of the Ninth

are central to the

to cynical legal scholars of today, the ideas

of the preamble to the Declaration did not go out of fashion in a

decade and a

half;

and those ideas were

as appropriate for writing a

frame of government as for writing a "brief"

The proof derives from both

text

and context. The text of the

Ninth Amendment does protect the unenumerated

rights of the

people, and no reason exists to believe that

mean what it

says.

The

it

does not

context consists of Madison's remarks about natural

rights during the legislative history of the

amendment and

also the

references to natural rights in the opinions of the time, or what

Madison

called

"contemporaneous interpretations." The

the state constitutions that

New

came out of the Revolution,

Hampshire, began with a

bill

last

of

that of

of rights of 1783 whose lan-

guage Madison might have used in his

first

proposed amendment,

the one that included the pursuit and obtaining of happiness. Virginia's 1788

recommendations

tution began similarly, as had

for

amendments

to the Consti-

New York's and North Carolina's. At

the Pennsylvania ratifying convention,

James Wilson, who had

been second only to Madison as an architect of the Constitution, quoted the preamble of the Declaration of Independence, and he added: "This placed;

the broad basis

on the same certain and

Constitution]

The

is

is

on which our independence was solid foundation this

pursuit of happiness, a phrase used by Locke for a concept

that underlay his political ethics, liberty

system [the

erected."

subsumed the

and property, which were inextricably

great rights of

related.

Lockean

thought, to which the Framers subscribed, included within the

252

::

NINTH AMENDMENT

pursuit of happiness that which deHghted and contented the

and

beHef that indispensable to

mind

it

were good health, reputation,

and knowledge. There was nothing

radical in the idea of the right

a

to the pursuit of happiness.

The

anti- American

Tory Dr. Samuel

Johnson had used the phrase, and Sir William Blackstone,

also a

Tory, employed a close equivalent in his Commentaries in 1765

when remarking is

"that

man

the foundation of what

should pursue his

we

call ethics,

own happiness. This

or natural law."

In the eighteenth century property did not

mean merely

the

ownership of material things. Locke himself had not used the word to denote

merely a right to things; he meant

a right to rights. In his

Second Treatise on Government, he remarked that people "united

and

for the general preservation of their lives, liberties,

which

I call

property

by the general

must be understood here

I

property which least four

erty to

name— property." And,

men

estates,

he added, "by

as in other places to

mean

that

have in their persons as well as goods." At

times in his Second Treatise, Locke used the word prop-

mean

all

that belongs to a person, especially the rights he

wished to preserve. Americans of the founding generation understood property in this general Lockean sense, which

This view of property essay by "larger said,

Madison on

and

juster

property.

right." In the

narrow sense

money;

broader sense,

his opinions

He

right

is

and the

free

it

lost.

described what he called the

man may

it

we have

theme of a 1792

the

meaning" of the ttrm property.

"every thing to which a

in the

human

as a

meant one's meant

It

"embraces," he

attach a value and have a land, merchandise, or

that "a

man

communication of them.

erty of peculiar value in his religious opinions,

and

has property in

He

has a prop-

in the profession

He has property very dear to him in the safety and liberty of his person. He has an equal property in the and practices dictated by them.

free use

of his faculties and free choice of the objects on which to

employ them. In property, he

a

word, as a

man

is

said to have a right to his

may be equally said to have a property in his rights." If

NINTH AMENDMENT

Amendment

the Fifth

erty" in the

253

incorporated this broad meaning of "prop-

due process clause (no person

be deprived of Hfe,

shall

property without due process of law), then "Property"

liberty, or

had a dual meaning rialistic

::

meaning

but only the narrower, mate-

in that clause,

eminent domain or takings clause (private

in the

property shall not be taken for a public use except at a just compensation) survived.

This inconsistency

same word

same amendment seems

in the

in the different uses

how defined, property rights nourished Not only were

baffling.

of the

But, no matter

individual autonomy.

and the pursuit of happiness

liberty, property,

deeply linked in the thought of the Framers, but they also believed in the principle that all people

equality of rights.

ation of a

it

nor could

When Lincoln at

new nation "conceived

proposition that tion that

had a right to equal

all

men

justice

and

Gettysburg described the cre-

in liberty

and dedicated

are created equal," he

to the

reminded the na-

could not achieve freedom without equal rights for

it

to

maintain equality without keeping society

free.

all

Lib-

erty and equality constituted the master principles of the founding,

which the Framers perpetuated

if slyly.

Framers compromised by accepting not aboHsh slavery and

what was

feasible.

still

Nowhere

form

as a

human

condition.

even

human

slavery, the

political reality;

they could

a strong

Union, but they did

in the Constitution

described in derogatory terms.

edged

as constitutional ideals,

In a society that inherited a system of

Nowhere

is

The Framers

is

any person

slavery even acknowlin effect

spoke to the

future by using circumlocutions that acknowledged only the status

of "persons held to service"— a term that could be applied to white

indentured servants. Race was not mentioned in the Constitution, not until the Fifteenth

Amendment. The

three-fifths rule,

which

applied both to direct taxation and to representation, was a device

by which the Convention

tied

southern voting strength in Con-

gress to southern liability for direct taxes

Framers did not intentionally

insult the

on land and people. The

humanity of blacks held

to

254

service.

The same

::

NINTH AMENDMENT

Constitution authorized Congress to extinguish

the slave trade in twenty years, and thus prevented untold tens of

thousands of people from being enslaved, but the authorization refers only to the "importation of such persons" as

thought proper to admit.

amended by

the Ninth

The

Amendment

dation for equal justice to religion.

The

point

all

is

some

states

had

that the Constitution as

provided a subsequent foun-

persons, regardless of race, sex, or

Reconstruction amendments did not require the

deletion or alteration of any part of the Constitution.

The Ninth Amendment

is

the repository for natural rights,

including the right to pursue happiness and the right to equaHty

of treatment before the

law.

Madison, presenting

his

proposed

amendments, spoke of "the perfect equality of mankind." Other natural rights well,

come within

among them

right to travel,

the protection of the

amendment

the right, then important, to hunt and

and very

fish,

as

the

likely the right to intimate association or

privacy in matters concerning family and sex, at least within the

bounds of marriage. Such

rights were fundamental to the pursuit

of happiness. But no evidence exists to prove that the Framers

intended the Ninth rights.

The

Amendment

to protect

text expressly protects

any particular natural

unenumerated

can only guess what the Framers had in mind. tantalizing hints

and

a general

rights,

On

but we

the basis of

philosophy of natural rights, which

then prevailed, conclusions emerge that bear slight relation to the racial, sexual, or political realities

of that generation.

In addition to natural rights, the unenumerated rights of the

people included positive rights, those deriving from the social

compact that creates government. What miliar,

when

the Ninth

not enumerated in the original text or the

The

right to vote

positive rights were fa-

became part of the Constitution,

and hold

office,

first

yet were

eight amendments.^

the right to free elections, the

right not to be taxed except by consent through representatives of

one's choice, the right to be free from monopolies, the right to be

NINTH AMENDMENT free

from standing armies

tary service

in

255

::

time of peace, the right to refuse miH-

on grounds of rehgious conscience, the

the right of an accused person to be

right to bail,

presumed innocent, and the

person's right to have the prosecution shoulder the responsibility

of proving guilt beyond a reasonable existing positive rights protected stitutions,

and the

common

doubt— all

by various

these were

among

state laws, state

con-

law Any of these, among others, could

legitimately be regarded as rights of the people before

power of government must be exercised

which the

in subordination.

In addition to rights then known, the Ninth

Amendment might

have had the purpose of providing the basis for rights then un-

known, which time alone might

disclose.

Nothing

of the Framers foreclosed the possibility that

in the

new

thought

rights

might

claim the loyalties of succeeding generations. As the chief justice

of Virginia's highest court mused

being framed,

some

"May we

when

the Bill of Rights was

not in the progress of things, discover

great and important [right],

which we don't now think of .^"

To argue that the Framers had used natural rights as a means of escaping obligations of obedience to the king but did not use natural rights "as a source for rules of decision"

is

has only to read the state recommendations for a

know

hogwash. One

bill

that the natural rights philosophy seized the

Framers

as

it

of rights to

minds of the

had the minds of the rebelHous patriots of 1776. One

can also read natural rights opinions by

Supreme Court

to arrive at the

members of

the early

same conclusion. Without doubt,

natural rights, if read into the Ninth

Amendment, "do not lend

themselves to principled judicial enforcement," but neither do positive rights.

That

is,

the enumerated rights, such as freedom of

speech and the right to due process of law, have resulted in some of the most subjective result-oriented jurisprudence in our history.

That

judicial decisions can

be unprincipled does not detract from

the principle expressed in a right, whether or not enumerated. If

the Ninth

Amendment instructs

us to look

beyond

its

four corners

256

for

unenumerated

::

NINTH AMENDMENT

rights of the people, as

content, contrary to

its

detractors.

it

does,

Some

it

must have some

cannot stomach the

thought of such indefiniteness, and they disapprove of a Hcense for judicial subjectivity; so they

draw conclusions

that violate the

commonsensical premises with which they begin. John Hart for example, initially suggests that the for

what

it

says

and that

is

it

Ely,

amendment should be read

the provision of the Constitution

that applies the principle of equal protection against the federal

government. "In

fact,"

he wrote, "the conclusion that the Ninth

Amendment was intended tutional rights

tution

is

to signal the existence of federal consti-

beyond those specifically enumerated

the only conclusion

its

in the Consti-

language seems comfortably able to

support." Yet Ely ridicules natural rights theory and believes that swiftly

became passe.

it

He ends by leaving the amendment an empty

provision, significant only as a lure to judicial activism.

Raoul Berger but he

is

is

an even more hostile

so eager to keep

mystery to Justice Robert

S.

it

critic

of the amendment,

the feckless provision that was a

Jackson that he confuses the Ninth

and Tenth Amendments. For example, he speaks of "the ninth's retention of rights by the states or the people," the Tenth

Amendment, not

rights, that

is,

its

when

in fact

it is

predecessor, that speaks of states'

of powers retained by the states or the people.

"The

ninth amendment," added Berger, "... was merely declaratory of a basic supposition: to the people." It

But an is

all

powers not

'positively'

granted are reserved

added no unspecified rights to the Bill of Rights.

explicit declaration

of the existence of unenumerated rights

an addition of unspecified rights to the

Bill

of Rights, whose

Tenth Amendment, not Ninth, reserved powers not granted. Confusion between the Ninth and Tenth Amendments seems to originate with

One

in

two amendments proposed by Virginia

modified terms was modeled after Article

II

in 1788.

of the Articles

of Confederation, retaining to each state every power not delegated to the

United

States.

The

other

amendment concerned

clauses in

NINTH AMENDMENT

257

::

the Constitution declaring that Congress shall not exercise certain

powers

(for

example, no

bills

amendment pro-

of attainder). That

posed that such clauses should not be construed to extend the

powers of Congress;

rather, they should

be construed "as making

exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution." Neither proposal addressed the issue of reserving to the people rights. Yet the Virginia

to ratify the

unenumerated

Assembly, in 1789, when debating whether

amendments proposed by Congress,

initially rejected

what became the Ninth and Tenth Amendments. The Assembly preferred instead

its

two proposals of 1788. The reasoning behind

the Assembly's action was confused and gave rise to the confusion

between the Ninth and Tenth Amendments. According

to

Hardin Burnley,

a

member

who

of the Assembly

kept Madison informed about the progress of his amendments in

Edmund Randolph, who led the opposition Ninth Amendment (then the eleventh), objected to the

the state legislature, to the

word

retained because

it

was too

indefinite.

that the rights declared in the preceding

through Eighth) "were not

all

Randolph had argued

amendments (our

that a free people

exercise of; and that there was no criterion by

First

would require the

which it could not be

determined whether any other particular right was retained or not."

Thus Randolph argued

comprehensive and logically, that the

explicit.

Ninth was not

that the

From

course of safety

sufficiently

that point he concluded,

lay,

il-

not in retaining unenume-

rated rights, but in providing against an extension of the powers of

Congress. Randolph believed that the Ninth

Amendment

did not

reduce rights to a "definitive certainty."

Madison soon

after sent to

formation (and language) as those

who

find the

George Washington Burnley's

if his

own. The

letter, as

Ninth Amendment an empty

vehicle,

became

means of putting Madison's authority behind the proposition the Ninth

Amendment means no more

in-

construed by a

that

than the Tenth. Plagiariz-

258

NINTH AMENDMENT

::

Madison informed Washington

ing Burnley,

that he found

Ran-

dolph's distinction to be without force, because "by protecting the rights of the people

power

will

&

be prevented

of the States, an improper extension of

& safety made equally certain."

Madison

did not challenge Randolph's assertion that the amendments pre-

ceding the Ninth and Tenth did not exhaust the rights of the people that needed protection against government.

Nor

did he

challenge the assertion that the Ninth was too vague. Rather,

Madison disagreed

more

that adoption of the Virginia proposals of 1788

effectively secured the rights deserving of protection.

In the only part of his letter that did not repeat Burnley's,

Madison expressed

regret that the confusion had

come from Ran-

dolph, "a friend to the Constitution," and he added: "It greater cause of regret, if the distinction as

it

a

still

be,

appears to me, altogether fanciful. If a line can be drawn

between the powers granted and the rights retained, to

is

[made by Randolph]

be the same thing, whether the

latter

it

would seem

be secured, by declaring

that they shall not be abridged, or that the former shall not be

extended. If no line can be drawn, a declaration in either form

would amount

to nothing."

The

reference to "whether the latter

be secured" meant the retention of a specific

Madison argued retained

amounted

is

to the

between

same thing

a

right.

In effect,

power granted and

if a

right were

a right

named. Thus,

government may not abridge the freedom of the

to say that the

press

that the line

the equivalent of saying that the government shall not

abridge the freedom of the press.

If,

as

Madison

said, a line

cannot

be drawn between rights retained and powers denied, retaining

unenumerated

ernment

rights

to violate them.

Amendment

is

be secure

.

.

.

a

power of gov-

Whether the formulation of the

used— "Congress

that of the Fourth to

would be useless against

Amendment

is

shall

First

make no law"— or whether

used— "The

right of the people

against unreasonable searches and seizures, shall

not be violated"— the effect

is

the same. In the case of unenumer-

NINTH AMENDMENT

259

::

ated rights, however, one can only argue that no affirmative

power

has been granted to regulate.

Randolph had lution. all

respects.

problem that remains without

Although both houses of Virginia's

ratified the Bill

bedevil

no

identified a

a so-

Madison's response was by no means a satisfactory one

of Rights, the Ninth

interpreters.

its

in

legislature finally

Amendment

continues to

Courts keep discovering rights that have not enumerated, only to

literal textual existence, that is, rights

meet howls of denunciation from those who deplore the result— whether the right of

a

woman

an abortion, a right of privacy

to

against electronic eavesdropping, or a right to engage in

dancing.

Opponents have another

find in a declaration

by Madison

string to their bow, in the First

proposed his amendments. Adding tion,

a bill

nude

which they

Congress,

when he

of rights to the Constitu-

he argued, would enable courts to become "the guardians of

those rights; they will be an impenetrable bulwark against every

assumption of power

in the legislative or executive; they will

naturally led to resist every encroachment

upon

be

rights expressly

stipulated for in the constitution by the declaration of rights."

"Expressly stipulated" can be read to

opposed or

enumerated

failed to predict judicial rights.

that

Madison

what Raoul Berger

to enforce a catalog of

either

review in cases involving un-

And, without doubt he was not referring

desirability of giving courts

commission

mean

calls

unenumerated

to the

"a roving

rights against

the will of the states."

Madison might

well, however,

ing against the states the valuable states

amendment

amendment

in the

that he thought "the

most

whole list"— one that prohibited the

from infringing upon the equal rights of conscience, the

freedom of speech or inal cases. sal,

have approved of courts' enforc-

The House

press,

and the right

making enforcement by the

impossible.

The

to trial

by jury

in

crim-

passed but the Senate defeated that propofederal courts against the states

incorporation doctrine, drawn from the Four-

260

teenth

::

NINTH AMENDMENT

Amendment, superseded whatever

limitations the

Framers

of the Bill of Rights had in mind concerning judicial review over state acts.

So long

as

we continue

to believe that

government

for the sake of securing the rights of the people cise

powers

in subordination to those rights, the

ment should have

the vitality intended for

whether the rights

it

it.

is

instituted

and must exer-

Ninth Amend-

The problem

is

not

guarantees are as worthy of enforcement as

the enumerated rights; the problem, rather,

is

whether our courts

should read out of the amendment rights worthy of our respect,

which the Framers might conceivably have meant least in principle.

to safeguard, at

Appendix: Key Documents

1.

Table for Sources of the Provisions of the Bill

of Rights

263

December

2.

English Bill of Rights,

3.

Virginia Bill of Rights, June 12, 1776

4.

Amendments Proposed by June

5.

6.

7.

8,

272

the Virginia Convention,

in

Congress by James Madison, 281

1789 the Select Committee,

284

28, 1789

Amendments Passed by August

the

House of Representatives, 287

24, 1789

8.

Amendments Passed by

9.

Amendments Agreed by Congress

269

275

Amendments Reported by June

1689

27, 1788

Amendments Offered June

16,

the Senate, September 9, 1789 291

to After

to the States,

Conference and Proposed

September

261

25, 1789

294

ONE

Table for Sources of the Provisions of the Bill

ofRights

Edward Dumbauld, The Bill of Means Today (Norman: University of Oklahoma

[Reprinted, by permission, from Rights and

What

It

Press, 1957), 160-165. Copyright 1957

homa

The

by the University of Okla-

Press.]

following table facilitates convenient reference to the sources for

any particular provision of the

were ultimately included

Bill

of Rights. Topics in capital letters

in the ten

amendments

ratified.

The

first

thirty-three topics were included in Madison's proposals to Congress.

The other topics in

the table were proposed by one or

more

states

but

not considered in Congress. Figures in the

first

column

son's proposals as discussed in his proposals as

columns

refer to the substantive items in

my text;

numbered when

refer to the Select

offered in Congress.

Committee's report

Annals of Congress)^ the seventeen

Madi-

those in the second column to

articles

(as

The

next

numbered

five

in the

adopted by the House, the

twelve articles adopted by the Senate, the twelve articles agreed to after conference,

and the ten amendments

ratified, respectively.

Then

follow references to the English Bill of Rights, the Virginia Bill

of Rights, and the proposals of the eight states which formulated

amendments. The

last

column shows the number of states favoring

particular proposal.

263

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