Colonial Massachusetts is often charged with having supported a religious establishment. As Green v. Washburn, No. 37, indicates, there is a sense in which this charge is all too well-merited. The “establishment” which existed in the 18th century, however, was far from being the state-controlled church administering a rigid dogma which the term suggests. Indeed, local autonomy was the very essence of the Congregational faith of the Massachusetts Puritans. The “establishment,” whatever support it may have received from the state, was only the sum of several hundred self-sufficient congregations which subscribed to certain common principles but were jealously independent in defining their faith within the limits of those principles and in governing their own temporal affairs. Fundamental to this spirit of independence was the jurisdiction of each church over the conditions of its membership. Deacon Thomas Pierce’s suit for defamation against Samuel Wright arose from the latter’s invocation of this jurisdiction in the Church of Christ in Wilmington, to which they both belonged.1
In September 1767 Pierce and Wright had, with Philemon Chandler, served as arbitrators in a dispute between Jeremiah Bowen and Zacheus Hibberd over the division of certain timber which they had jointly arranged to have cut and sawed. The award of the arbitrators had provided, among other things, that Bowen should receive “all the Ship Timber and half the Boards they got Sawed,” as well as certain “Coals,” presumably charcoal. According to later witnesses, after the award was read to the parties, Wright further said that Bowen was to understand that he was not thereby entitled to take any of the “plank” cut, which had been reserved for the floor of Hibberd’s barn. Pierce and Chandler did not object to this statement and indicated by later comments that it represented their understanding as well.2 The next stage in the proceedings occurred two or three weeks later before Justice of the Peace Josiah Johnson, where Hibberd was suing Bowen. It is not clear whether the original arbitration had been conducted as part of this suit, or whether the suit was newly brought on some phase of the award. In any event, the issue seems to have been the right to the “plank.” Thomas Pierce was called as a witness and apparently testified that the arbitrators had intended that all of this commodity should go to Bowen.3
After an unsuccessful effort to change Pierce’s position, Wright submitted a formal complaint against him to Isaac Merrill, pastor of the Wilmington church. The complaint charged that Pierce when under oath had solemnly declared “Things contrary to Truth and contrary to his holy Profession. And . . . dishonorary to God and Religion.”4 After the service on 11 October, the complaint was read to the assembled members, and Wright stated that he had meant to charge Pierce with perjury. Ten days later Pierce demanded in writing that Wright give him “Christian satisfaction” (that is, a retraction and apology before the congregation), threatening otherwise “to seek after it in a Legal Way.”5
No retraction seems to have been forthcoming, because Pierce brought an action of the case against Wright at the November 1767 term of the Middlesex Inferior Court, with separate counts in libel and slander, alleging £500 damages. The declaration (Document I), probably drawn by Jonathan Sewall, counsel for Pierce at the trial, is a classic example of the common-law form in such matters, complete with inducement, colloquium, innuendo, and all.6 On a plea of the general issue the suit went to the jury at the March 1768 session. Although Benjamin Kent was counsel of record for Wright, Adams argued his case, unfortunately without success. Pierce won a verdict of £3 and both parties appealed to the Superior Court. There at the October 1768 term, with James Putnam joining Sewall, and Adams again appearing for Wright, Pierce obtained a second verdict. On a motion in arrest of judgment the case was continued, but at the April 1769 term judgment for £9 damages and £28 13s. Id. costs was entered for Pierce on the verdict.7
Adams’ undated minutes (Document II) have been assigned to the March 1768 Inferior Court trial.8 They are chiefly of interest because they record an argument in which Adams presented the defense of privilege. He first demonstrated that the Cambridge Platform of 1648, the traditional governing ordinance of the Congregational churches, gave to members the right to accuse before the congregation brothers whom they felt had strayed from the ways of righteousness.9 This procedure, Adams argued, was necessary to the principal end of the church, the mutual encouragement and preservation of godliness. No action for defamation should lie against one who sought to exercise the right. The possibility of liability would discourage members from coming forward, and the church could not protect itself against the unrighteous. There would be no abuse in the absence of a civil remedy, however. One who sought deliberately to injure another with false charges would be discovered and punished in the course of the trial of his own accusations. As a separate point Adams also contended that Wright’s written complaint was not actionable, drawing an analogy to English authority which held that documents in legislative and judicial proceedings, including those in spiritual courts, were privileged.10
Modern theory recognizes two branches of privilege—the absolute privilege to defame regardless of motive that is accorded to participants in judicial and legislative proceedings as a matter of public necessity, and the qualified privilege which exists in certain other circumstances and may be defeated on a showing that the defamer acted with “malice”—that is, abused the privilege by publishing defamation to serve an interest other than that meant to be protected. In the modern view members of religious and other groups have a qualified privilege to defame other members in the course of their proceedings.11
At the time of Pierce v. Wright, as Adams’ authorities show, the common law had long known the absolute judicial and legislative privilege. But the concept of a qualified privilege in other matters was barely in its infancy. It first appeared in something like its modern form in a dictum of Lord Mansfield’s in 1769 to the effect that a master was qualifiedly privileged in describing a former servant to a prospective employer.12 In several early 19th-century American decisions the courts extended a qualified privilege to church deliberations, but the reasons given are confusing. The servant cases were usually cited, as well as a very brief opinion in an English criminal libel proceeding which seemed to give the privilege to church members on the grounds that the affair was “merely a piece of discipline.” Courts and counsel relied heavily upon the older judicial-privilege authorities, however, and the opinions are really framed on the analogy of church to court proceedings.13
This last analogy runs throughout Adams’ argument and is express in his reference to the judicial-privilege cases. His suggestion that abuse of privilege was to be remedied by action within the church shows that he did not envision the modern concept of qualified privilege. Nevertheless, his argument contains a principle that goes far beyond the unrealistic church-court analogy drawn by later cases. In emphasizing the constitution and aims of the church he anticipated the basis of the modern grant of privilege to church members. It is not the judicial nature of the deliberations, but the right of the members to protect or advance the common interests for which they have banded together that requires their proceedings to be privileged.14 If Adams did not fully articulate the modern theory, he at least saw the significance of the relationship which underlies it more clearly than did the 19th-century judges.
Although a general verdict and the lack of any record of the court’s charge make it impossible to know the precise legal bases of the decision in Pierce v. Wright, the result would indicate that Adams’ arguments were not accepted.15 With the notion of privilege based on common interests still undeveloped in England, it is not surprising that a Massachusetts court should reject a defense based upon it. That the analogy to judicial and legislative privilege also failed suggests that, to the 18th-century judges and jury at least, the “established” church was not so much a creature of the state that its deliberations had the character of public proceedings.
1. For an example of the establishment charge, see Jacob C. Meyer, Church and State in Massachusetts from 1740 to 1833 1–31 (Cleveland, 1930). As to the force and effect of Congregational autonomy, see Edmund S. Morgan, The Puritan Dilemma 76–82 (Boston, 1958). For the doctrinal problems, see Perry Miller, The New England Mind: From Colony to Province (Cambridge, Mass., 1952). The diversity of Congregationalism has most recently been expounded by Clifford K. Shipton in his paper, “The Locus of Authority in Colonial Massachusetts,” delivered at the Conference on Colonial History, April 1964, published in George A. Billias, ed., Law and Authority in Colonial America: Selected Essays (Barre, Mass., in press). Mr. Shipton goes somewhat further in exculpating Massachusetts than would the present editors. See No. 37. Autonomy was recognized in the first statute creating an “establishment.” See id., note 2. The Act of 4 Nov. 1692, c. 26, §3, 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 62, provided “That the respective churches in the several towns within this province, shall at all times hereafter, use, exercise and enjoy all their privileges and freedoms respecting divine worship, church order and discipline, and shall be encouraged in the peaceable and regular profession and practice thereof.” For a list of Deacons and members of the Wilmington church, see Articles of Faith and Covenant, Ecclesiastical Principles, Standing Rules, and List of Members, of the Orthodox Congregational Church, Wilmington, Mass. 16–20 (Woburn, Mass., 1857). See also Daniel P. Noyes, Historical Addresses Delivered in the Meeting-House of the Church of Christ in Wilmington, Mass., Sept. 25, 1880 (Boston, 1881).
2. See copies of the award and various depositions in SF 147706. As an instance of the other arbitrators’ understanding, the deposition of John Richardson, sworn in the Charlestown Inferior Court, 16 March 1768, records that after the award was read,
“Mr. Chandler the other Arbitrator went into the Kitchin and gave Mrs. Hebberd the Wife of the above said Zacheus a slap on her Knee and said are you affronted Mrs. Hebberd. She answered, no I am not affronted at you, but Bowin has run away with all my Husband’s Winter’s Work and his own too, he has got all the Ship Timber and most of the Coal. Said Chandler answered and said your Husband has got the Plank and the Crop clear and she answered and said what are the Plank, them are but a Trifle.” Ibid.
3. No detailed account of the proceedings before Justice Johnson has survived. The nature of Pierce’s testimony has been deduced from the declaration (Doc. I) and from conflicting statements in the depositions of witnesses favorable to one or the other of the litigants. SF 147706.
5. As to the church meeting, see the declaration (Doc. I), and the testimony of various witnesses, text at notes 14–16 below. Pierce’s demand is in SF 147706. The church ultimately postponed consideration of the matter until after the resolution of the civil suit. See note 4 below. As to the jurisdiction of the church in such matters, see Emil Oberholzer, Delinquent Saints 172–185 (N.Y., 1956). See also Haskins, “Ecclesiastical Antecedents of Criminal Punishment in Early Massachusetts,” 72 MHS, Procs. description begins Massachusetts Historical Society, Collections and Proceedings. description ends 21 (1957–1960).
6. The formal parts of a declaration in libel or slander were the inducement, a prefatory allegation of the plaintiff’s reputation and surrounding circumstances; the colloquium, an allegation that the defamation was “of and concerning the plaintiff”; the statement of the defamatory matter and its publication; the innuendoes, allegations which pointed out expressly the defamatory meaning of the remarks; and the damages resulting from the defamation. See 1 Chitty, Pleading description begins Joseph Chitty, Pleading and Parties to Actions, 2d edn., London, 1811; 2 vols. description ends 381–383, 385; 2 id. at at 304–313.
7. See the pleadings and Inferior Court judgment in SF 147706. JA’s Dockets for the Middlesex Inferior Court, Nov. 1767 and March 1768, show that he was retained by Wright. Adams Papers, Microfilms, Reel No. 182. See also note 1 below. For the Superior Court proceedings, see Min. Bk. 88, SCJ Cambridge, Oct. 1768, C–7, C–11; Charlestown, April 1769, C–7, C–8. SCJ Rec. 1769, fols. 42–44. Pierce was awarded further costs in Wright’s appeal of £2 3s. 0d. As to the motion in arrest of judgment, see No. 3, note 10.
9. The Platform, although not formally binding, remained the primary instrument of church government until well into the 19th century. See Edward Buck, Massachusetts Ecclesiastical Law 76–78 (Boston, 1866); Williston Walker, The Creeds and Platforms of Congregationalism 157–188 (N.Y., 1893); Avery v. Inhabitants of Tyringham, 3 Mass. description begins Massachusetts Reports, Exeter and Boston, 1804– . description ends 160, 165, 170, 182–183 (1807). JA’s citations appear at notes 10-16 below.
11. See Fowler V. Harper and Fleming James Jr, The Law of Torts, 1:419–430, 442, 450–456 (Boston, 1956); Annotation, 63 A.L.R. description begins American Law Reports Annotated, Rochester, N.Y., 1919– description ends 649 (1929); Oberholzer, Delinquent Saints 244–245.
12. See Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 134–136. For Lord Mansfield’s formulation, see Hargrave v. LeBreton, 4 Burr. description begins James Burrow, Reports, King’s Bench, 1756–1772, London, 1766–1780; 5 vols. description ends 2422, 2425, 98 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 269, 271 (K.B. 1769). Dictum became holding in Mansfield’s decision in Weatherston v. Hawkins, 1 Term Rep. description begins C. Durnford and E. H. East, King’s Bench Reports, London, 1787–1800; 8 vols. description ends 110, 99 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 1001 (K.B. 1786).
13. See M’Millian v. Birch, 1 Binn. description begins Horace Binney, Reports (Pennsylvania Reports, 1799–1814), Phila., 1809–1815; 6 vols. description ends (Pa.) 178 (1806); Jarvis v. Hatheway, 3 Johns. description begins William Johnson, Reports, Supreme Court of Judicature, New York, N.Y., 1807–1823; 20 vols. description ends (N.Y.) 180 (1808); Remington v. Congdon, 2 Pick. description begins Octavius Pickering, Pickering’s Reports (Massachusetts Reports, 1822–1839), Boston, 1853–1864; 24 vols. description ends (Mass.) 310 (1824). The criminal libel case relied upon in these opinions was King v. Hart, 1 W. Bl. description begins William Blackstone, Reports, Courts of Westminster Hall, 1746–1779, with a preface containing Memoirs of His Life, London, 1781; 2 vols. description ends 386, 96 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 218 (K.B. 1762). This decision may have been available to JA in 1768, although Sir William Blackstone’s Reports were not published until 1781. 1 Sweet and Maxwell, Legal Bibliography description begins W. Harold Maxwell and Leslie F. Maxwell, comps., A Legal Bibliography of the British Commonwealth of Nations: Vol. 1; English Law to 1800, 2d edn., London, 1955; C. R. Brown, P. A. Maxwell and L. F. Maxwell, comps., Vol. 3: Canadian and British-American Colonial Law, London, 1957. description ends 293. The case was reported in slightly different form in Richard Burn, Ecclesiastical Law description begins Richard Burn, Ecclesiastical Law, 2d edn., London, 1767; 4 vols. description ends , 2:175–178 (London, 2d edn., 1767). The “quasi-judicial” character of church disciplinary proceedings was relied upon to support the privilege in John Townshend, A Treatise on the Wrongs Called Slander and Libel 376–378 (N.Y., 2d edn., 1872). An earlier English treatise equated the privilege granted to church proceedings with that for “confidential communications of friendship,” and all “charges as necessarily exclude the suspicion of malice.” The only case cited was King v. Hart, above. See Francis L. Holt, The Law of Libel 226–228 (London, 2d edn., 1816).
14. 1 Harper and James, Torts 442.
15. It is possible that the court accepted the privilege argument but found that privilege here was defeated by malice. The facts do not support such a finding, however, and there is no indication that the question was argued. Moreover, JA’s suggestion that the remedy for abuse lay in the hands of the church indicates that this aspect of qualified privilege was not recognized. For a much earlier Massachusetts case in which there was a verdict for the plaintiff in a suit for slander in church proceedings, the defense of privilege apparently not having been raised, see Mansfield v. Hathorne and Longley v. Hathorne, 3 Essex Quarterly Court Records 24, 30 (Essex Co. Ct. 1663), in Mark DeWolfe Howe, Readings in American Legal History 133–137 (Cambridge, Mass., 1952).