The jurisprudential foundation for the criminal law including criminal libel (as well as for the law of blasphemy discussed in the next chapter) was the societal concern for the preservation of the domestic order and prevention of breaches of the peace. Accordingly, in the early days of the New Republic, it was entirely consistent with the repressive jurisprudence of the times for the courts after the arrest and institution of proceedings of persons accused of commission of libel to take steps pending trial to prevent further recurrences.
As best that one can tell from the inadequate reports, courts routinely did so on the mere assertion of the prosecutor without requiring any proof of probable cause that the remedy was reasonably required to prevent a repetition of the alleged offense. Thus, as an alternative to imprisonment before the trial, courts were empowered to require the defendants to post bonds for good behavior with the courts, often requiring additional sureties to assure the defendant’s compliance. Failing the ability to obtain such sureties in the amount required, the defendant remained in jail, sometimes for months, until the court and prosecutor were ready for trial. In the meantime, further critical comment was stifled for the time being.211
210 See American Watchman, Feb.7,1818.
211 See generallyWilliams, Preventive Justice and the Rule of Law,16Mod. L. Rev.417(1953); (Note)
“Preventive Justice” – Bonds to Keep the Peace and for Good Behavior,88U. Penn. L. Rev.331 (1940); Rosenberg, note17, at18–19.
As with the other repressive doctrines of the times that have been examined, the power of a judge before trial to bind a defendant over for good behavior in libel cases was derived from the understanding of American judges of the scope of judicial authority under the English common law.
Rosenberg reports that as early as the17th century in the very new Colonies,
“courts commonly assessed good behavior, or peace bonds, bonds against people considered likely to cause trouble with their tongues. Bonds could even be used before there had been any formal determination of criminal guilt or innocence.” Indeed, Rosenberg goes further, stating: “According to Dalton’s Country Justice, a commonly used seventeenth-century handbook for justices of the peace, a bond could be declared forfeited without any actual breach of the peace . . . ‘using wordes or threatenings, tending to or inciting to the breach of the peace’ was enough.”212
As we have seen, Blackstone was the authoritative legal reference in the Colonial era and in the Early American Republic. In his Commentaries, Blackstone devoted a chapter to the exploration of the law of preventing the commission of crimes and misdemeanors.213He explained:
This preventive justice consists in obliging those persons, whom there is probable groundto suspect of future misbehavior to stipulate with and to give full assurance to the public, that such offense as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good behavior.214
On binding over for good behavior, Blackstone asserts “A man may be bound to his good behavior for . . . [among other causes] words tending to scandal- ize the government, or in abuse of the officers of justice, especially in the execution of their office.”215
Although Blackstone carefully restricted the use of the doctrine to cases in which “probable ground to suspect of future misbehavior” had been shown, the reported American cases give no indication that the courts were in fact requiring such proof. Indeed, there does not appear to be a single case that
212 SeeRosenberg, note17, at19.
213 Blackstone was not oblivious to the dangers of punishment before conviction. He expressly limits the doctrine to those cases where “there is probable ground to suspect of future misbehavior.”
He further advises that the magistrate administering the process: “if he commits a man for want of sureties, he must express the cause thereof with convenient certainty; and take care that such cause be a good one.”4Blackstone, note3, at248,253.
214 4Blackstone, note3, at248. Emphasis added.
215 4W. Blackstone, note3, at253. In support, Blackstone relies on the statute of34Edw. III, c.1 adopted in1360.
Binding Over of Defendants 305 so much as mentions the existence of the requirement. It was the routine approval without proof of probable cause of requiring the posting of pre- trial bonds for good behavior that renders the doctrine so pernicious in the frequent partisan prosecutions for criminal libel.
The first American case involving binding over after the Revolution was the1782clash between Eleazer Oswald and Chief Justice McKean, which has been earlier reviewed in detail. When Oswald criticized McKean’s conduct in fining and lecturing two Army officers, McKean caused his arrest for a “seditious, scandalous, and infamous libel.” For his release, Oswald was required to post a £750bond for “good behavior.” As noted, the matter died when the grand jury twice refused to indict.216
The next reported case wasRespublica v. Askewdecided by the Pennsyl- vania Supreme Court in1792.Askew involved a criminal libel prosecution for libeling a witness for giving testimony. On the defendant’s submission, he was fined £10and ordered to give security himself in the amount of £200and provide two sureties in the amount of £100each for his good behavior for one year.217However, this was an instance in which the good behavior bond was imposedafterconviction. It did not present the more difficult question of the power of the court to impose its requirement of a good behavior bondbefore conviction.
The third reported case also involves Chief Justice McKean, the 1797 Cobbett-McKean controversy that like the others has already been discussed.
McKean required Cobbett to post bond immediately after his indictment, citing theAskewdecision as his authority, but without referring to his similar action in theOswaldcase. It was Cobbett’s alleged violation of the bond that led to the ultimate judgment against him, not the libel prosecution. Neither in the summary report of the decision inAskewnor in Chief Justice McKean’s opinions inOswaldandCobbettis there any discussion of a judge’s authority to require such a bond. Nor is there any reference or discussion of the need for proof of probable cause of threatened repetition as a prerequisite for such an order.
However, it is a different matter in the follow-up decision in theCobbett litigation confirming that under Pennsylvania law an action in debt in favor of the state will lie for forfeiture of a good behavior bond. McKean had resigned from the Court to become Governor and Edward Shippen was now Chief Justice. Counsel for Cobbett challenged McKean’s authority to impose the
216 See supratext accompanying notes23–26.
217 Respublica v. Askew,1Yeates186,1792Pa. LEXIS35(1792).
bond on Cobbett in apocalyptic terms. Counsel was William Lewis, described as “a giant of the Philadelphia bar.”218He exclaimed:
If the chief justice . . . is allowed to bind [a libel defendant] to his good behavior, it is holding a rod of scorpions over his head to be used in the case of the smallest peccadillo . . . ; it is the most dangerous inroad upon the liberty of the press which we thought had been established; it is a violent usurpation. . . . If such things can be done, well may we exclaim, with the defendant “Poor Pennsylvania!”
Chief Justice Shippen was not unsympathetic, explaining that the Court also had doubts about the validity of the process: “We thought that, if not authorized by express law, it might be oppressive and ought to be prohibited.”
However, after careful consideration of the authorities, the Court was of the opinion that the procedure is “regular and legal. The authorities leave an amazing discretion, but so the law is.”219
Aside from authority, there is a further important issue. It is striking how Blackstone’s emphasis on the importance of requiring proof of probable cause was uniformly ignored. Nor does it appear ever to have been argued by defense counsel. This is unique in the otherwise unbroken obeisance to Blackstone displayed in the other 18th- and 19th-century decisions following English common-law authority as stated by Blackstone in other areas of repressive doctrines, such as criminal libel, judicial and legislative contempt of court, and blasphemy.
McKean failed to recognize that the decision inAskew, a post-conviction case, did not deal with the fundamental issue in theOswaldandCobbettcases, which involved pre-trial bonds. Binding over without prior proof of probable cause in either of those latter cases before conviction involves serious risks of dampening free speech analogous to a prior restraint. After conviction, as in Askew, however, the bond is imposed as punishment for the offence. Such a decision is no precedent for requiring a good conduct bond before the trial, as inOswaldandCobbett, where by definition there has been no determination as yet that any offense had been committed. Binding over prior to conviction, and without a showing of “probable cause,” is the imposition of punishment first, trial later.
However relevant this distinction between pre-trial binding over and post- conviction binding over may be as a matter of legal analysis, it does not seem
218 SeeG. S. Rowe, note16, at112.
219 Commonwealth v. William Cobbett,1Am. J.287,291,296–297(1800).See alsonote226. The reporter adds an interesting note. “I understand that a different decision of this important point was made inVirginiain the case ofCallender.”
Binding Over of Defendants 307 to have been raised in any of the subsequent cases or to have played any role in the subsequent development of the law.
Finally, the American judges did not restrict the practice of binding over to libels of the government or the “officers of justice” as stated by Blackstone.
Instead, the courts imposed the procedure to defendants in libel actions generally. Thus, as Chief Judge Tilghman said in a1809litigation involving Duane: “I will not say that there are not circumstances in which surety for good behavior might be exacted in cases of libels before conviction; on the contrary, I have no doubt that there are occasions on which it may be proper and necessary to insist on it.”220
The following year, Judge Martin, while sitting in the Territory of Louisiana, referred to Tilghman’s opinion, adding: “It is true the chief justice declared his opinion, that, as a general rule, it would be better not to require it. But the defendant has for a long time persisted in the practice [of which he was accused], and it is time to put a stop to it. It is better to prevent than to punish crimes.”221
The experience in the various prosecutions for criminal libel in the federal courts, both at common law and under the1798Act, confirms that binding over in libel proceedings was a common occurrence. In at least seven pros- ecutions, bonds for good behavior were required pre-trial.222 In not one did the court appear to make any inquiry into the existence of probable cause. As the Red Queen expounded to Alice, “Sentence first, verdict later.”223
The partisan prosecutions of John Daly Burk, the editor, and James Smith, the owner, of the outspoken Republican New YorkTime Piecefor criminal libel under the 1798 Act illustrate the chilling effect of pre-trial binding over. Upon indictment, Burk and Smith were required to post pre-trial good behavior bonds of $4,000each. When Burk proposed to run still more attacks on Adams while awaiting trial, Smith became concerned about the possible violation of his bond. He withdrew his support of the paper, and the paper closed.224 As a result of the good behavior bond, the Federalist prosecutor had complete success in his attempt to shut down this leading New York Republican newspaper without the necessity of a trial.
220 So reads Judge Martin’s opinion in Territory v. Nugent,1Mart.3(La. Terr.1810),citingCom- monwealth v. Duane,1Am. L. J.180,1Am. Dec.497. However, his citations are in error.
221 Territory v. Nugent,1Mart.103(La. Terr.1810) (Martin, J).
222 The numerous criminal libel cases involving partisan use of pre-trial binding over include the prosecutions of Benjamin Franklin Bache, John Daly Burk, Dr. James Smith, William Duane, William Durrell, Anthony Haswell, James Bell, Abijah Adams, and Thomas Collier.
223 Lewis Carroll,Alice in Wonderland96(Norton ed.1992).
224 SeeJ. M. Smith, note186, at204–220.
The second Cobbett-McKean controversy litigation occurring in 1797 illustrates still another unattractive dimension of the binding over process.
Although this case has been described at length earlier in this chapter, it is useful to retrace the aspect of the litigation that shows the baleful usefulness of the binding over power in silencing offensive speech. With the institution of the criminal libel prosecution of Cobbett for defaming the King of Spain and the Spanish Ambassador, Marquis de Yrujo, the case was set down for trial at the next term. By order dated August17,1797, Chief Justice McKean (about to become the father-in-law of the Marquis de Yrujo) held Cobbett on a $2,000bond together with two sureties for $1,000each, for Cobbett’s good behavior until trial at the next term of the Court of Oyer and Terminer, November26,1797. As described earlier, the grand jury subsequently refused to indict, bringing the underlying criminal libel prosecution to an end.225
However, McKean was not to be thwarted. In November1797, the Attorney General instituted an action in debt against Cobbett for $2,000on his bond in the previous proceeding, asserting that he had violated the terms of the bond required by McKean’s August17order. Cobbett, an Englishman, first tried to remove the case to the federal courts and get away from McKean.
This failed. The Supreme Court of Pennsylvania with McKean, sitting as Chief Justice, held that the action involved a recognizance in a Pennsylvania criminal proceeding and hence was not subject to removal. The matter then went to trial.
At the trial, the Attorney General asserted that from August24to November 16,1797, Cobbett had published a series of articles inPorcupine’s Gazettewith the intent “falsely, slanderously and maliciously” to defame the government of the United States and its officers and good citizens as well as the Pennsylvania Government and its officers and good citizens. At the trial, he presented what was reported as
thirty-five different malicious, scurrilous, and abusive publications in the Porcupine’s Gazette . . . defaming, ridiculing and reflecting on the general government of the Union, the principles of republican govern- ment, the people for adopting those principles, Mr. Thomas Jefferson, Mr. James Monroe, &c. The King of Spain, the French and Spanish nations and ministers thereof
and a series of Pennsylvania figures including former Governor Thomas Mifflin, Benjamin Franklin, and Alexander Dallas.
225 Rosenberg, note17, at77; Cobbett, note16, at87;1G. Spater,William Cobbett: The Poor Man’s Friend99(1982). Francis Wharton,State Trials322–332(1845).
Binding Over of Defendants 309 After argument whether the Court could proceed in the absence of a criminal conviction for the allegedly libelous publications and whether the proceeding was the equivalent to a libel trial without grand jury indictment, the Court ruled that this was merely a civil action on the forfeited bond, with only money damages to be recovered. Accordingly, action by a grand jury as in a criminal case was not required. The Court further held that the jury had the right to determine law and facts. It stated in its charge that if the jury concluded that the publications were libelous “and if they view them in the light we do, they will have no hesitation in pronouncing them to be such. . . . Libels . . . manifestly tend to breaches of the peace, and good causes of forfeiture of recognizance to keep the peace or good behavior.” With such a charge, the jury not surprisingly so held.226
In the unfolding story, the Commonwealth followed up on its success in the earlier proceeding against Cobbett with an action in debt for violation of the bond for $1,000 against Benjamin Davis, one of Cobbett’s sureties.
The Commonwealth satisfied its burden of proof of violation of the bond by presentation to the jury of bound copies of the1797Gazettecontaining the libelous matter. The jury rendered a verdict for the Commonwealth. On a writ of error, the High Court of Errors and Appeals affirmed the judgment.227 Chief Justice McKean’s earlier attempt to punish Cobbett through the criminal libel laws could not prevail over the protections afforded criminal defendants in a free society, including the necessity of a grand jury ready to indict and a petit jury ready to convict. However, in the extensive number of remedies available in the repressive jurisprudence of the times to punish dissenting speech, McKean found another remedy to achieve his objective.
His power to require a pre-trial “good behavior” bond and a ready procedure to forfeit the bond provided still another way to punish Cobbett. He, thus, avoided the barrier presented in attempted prosecutions for criminal libel.
This civil remedy may be contrasted with McKean’s successful punishment of Oswald a decade earlier by use of criminal contempt after, as in the case of Cobbett, a grand jury refusal to indict had blocked his attempt to trial the critic for criminal libel.
Although successful in his campaign to punish Oswald and Cobbett, Mc- Kean failed in his campaign against a third editorial critic – William Duane.
226 Respublica v. William Cobbett,3Yeates93;1800Pa. LEXIS56,∗18(Sup. Ct.1800). A different but not inconsistent account appears at1Am. L. J.287(1800). That report states: “Although you are the judges both of the law and the fact, we can not help saying that we think these publications are libelous.”1Am. L. J. at298.See alsonote219.
227 Respublica v. Benjamin Davis,3Yeates128;1801Pa. LEXIS3(Sup. Ct.1801).
The comparable attempt to punish Duane for his continued attacks on Mc- Kean and his son-in-law, Marquis de Urojo, while awaiting trial in the1809 prosecution for criminal libel failed. The prosecutor and McKean had failed to place Duane under bond prior to the trial for criminal libel. Thus, when Duane’s counsel brought on ahabeas corpusproceeding to get him released, the new Chief Justice Edward Tilghman granted the motion, noting the absence of any good behavior bond.228 These celebrated Pennsylvania con- troversies involving McKean and three of the most outspoken editors in Pennsylvania illustrate vividly the important role of pre-trial good behavior bonds in the political libel cases that characterized this period in America history.
Republican judges at common law presiding over criminal libel cases involving Federalists were no more gentle than the Federalist judges. In Connecticut in one of the celebrated criminal libel cases against Federalists instituted under federal criminal common-law jurisdiction by a Republi- can District Attorney, defendant Thaddeus Osgood, an aspiring ministerial candidate, was jailed pre-trial by the Republican federal judge for allegedly libeling Thomas Jefferson in a sermon. Unable to find sureties to assure his good behavior, he remained in jail until two prominent Federalists – David Daggett and Tapping Reeve (himself a defendant in one of the companion cases) – posted bond for him and obtained his release prior to trial. Subse- quently, the prosecution was dropped and Osgood released.
The1803controversy between James Thomson Callender and Richmond attorney George Hay illustrates a further dimension to binding over in libel litigation.229As readers may recall, Hay had been one of the lawyers defending Callender in the criminal action against him under the Sedition Act. Two years later Callender and Hay had a falling out and were involved in a personal quarrel. Callender complained to the Mayor of Richmond, who, acting in his capacity as a magistrate, bound Hay to appear at the next court for the city and in the meantime to keep the peace.
The next day, Hay filed a complaint against Callender and Henry Pace with the Magistrates of Henrico County alleging that Callender and Pace had published several infamous and scurrilous libels against him in theRecorder.
He moved for an order requiring Callender and Pace to show cause why
228 SeeG. S. Rowe, note16, at369.
229 The Jan.14,1801, PhiladelphiaEvening Postand the Jan.15,1803,Adams Centinel, Gettysburg Pa., both carry a reprint from the Virginia Gazettereporting in detail on the litigation.See Rosenberg, note17, at105–106.