DOCSLIB.ORG

1 the Jury's Constitutional Role, Originalism, and Judicial

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
1 the Jury's Constitutional Role, Originalism, and Judicial The Jury's Constitutional Role, Originalism, and Judicial Usurpation © by Tom Glass* I. Introduction.......................................................................................................................... 3 II. The Originalist Method ....................................................................................................... 4 III. The Evidence of Support for Jury Power by the Founders ............................................. 7 A. The Political and Intellectual Atmosphere of the Founding Era........................................... 7 1. Liberty and Justice for All ................................................................................................. 7 2. Natural Law Concepts Underlie Jury Power ..................................................................... 8 B. Defining The Jury ............................................................................................................... 15 C. The History of the Jury as the Founders Knew It ............................................................... 19 1. John Lilburne – Father of Most Criminal Procedural Rights .......................................... 19 2. William Penn, William Mead, and Bushell’s Case.......................................................... 22 3. The Restoration, the Seven Bishops’ Case, and the Glorious Revolution ....................... 27 4. Zenger’s Case – Press Freedom Protected by a Law-Judging Jury................................. 31 5. The Battle over Libel in Eighteenth Century England..................................................... 36 D. Comments on the Jury by the Founders.............................................................................. 41 1. Judging the Law as Well as the Facts .............................................................................. 41 2. The Structural Argument – Juries Represent the People in the Judiciary........................ 45 3. Juries – The Palladium of Liberty.................................................................................... 50 E. State Constitutions and the Sedition Act............................................................................. 52 1. Georgia and Pennsylvania State Constitutions ................................................................ 52 2. The Sedition Act .............................................................................................................. 58 F. Jury Practices of the Founders............................................................................................. 59 7/24/07 1 1. The Impeachment of Samuel Chase ................................................................................ 59 2. Trials and Instruction to the Jury ..................................................................................... 63 3. Prohibition Against Striking Jurors With Opinions of the Law ...................................... 68 4. Counsel Argued Law to the Jury ..................................................................................... 68 5. Triors and Challenge to the Favor ................................................................................... 70 IV. Arguments that the Founders Opposed Jury Power and Subsequent History............ 71 A. Arguments That the Founders Opposed Jury Power .......................................................... 71 1. More About the Originalist Method ................................................................................ 72 2. Dueling Dicta in Sparf v. United States........................................................................... 73 3. Academic Critics of Jury Law-Judging ........................................................................... 80 B. American Courts Since the Founding and Judicial Usurpation .......................................... 83 V. Conclusion .......................................................................................................................... 85 * - Tom Glass holds an MBA from Harvard University (1981) and a B.S. in Chemical Engineering from Texas A&M University (1979). He is a December, 2007 J.D. candidate at the University of Houston Law Center, and can be reached at [email protected]. 7/24/07 2 I. Introduction The vast majority of today’s judiciary, as evidenced by appellate court rulings, is hostile to the practice commonly known as jury nullification.1 But there is persuasive evidence that the American Founders (including the judiciary) held diametrically opposing views from today’s judiciary about the value of jury review of the merits of the law in criminal trials. Using originalist jurisprudence as articulated by Justice Antonin Scalia, this paper explores the evidence of the Founders’ views and practices, and concludes that an originalist application of the Constitution to jury power would produce very different courtroom practices and attitudes from those which currently prevail. Although this paper is written primarily for those with an originalist perspective, marshalling evidence of the content of the concept of the jury held by the Founders and avoiding discussion of why we should accept the Founders’ understanding, the Founders’ own arguments for jury review should also be interesting to those who do not adhere to the originalist approach. This paper will study the Founders' views on a criminal defendant's right to argue through counsel to the jury the constitutionality or propriety of the law under which the defendant is being prosecuted, the proper role of the judge and the jury in the republican system of ordered liberty detailed in the United States Constitution, the instructions that criminal trial judges should give juries about those roles, and the propriety of striking jurors for cause should they express opposition to the law under which the defendant is being prosecuted. Part II briefly reviews the originalist method. Part III reviews the evidence that the Founders supported jury review of the merits of the law in criminal trials. Part III.A explores the 1 E.g., U.S. v. Sepulveda, 15 F.3d 1161, 1189-90 (1st Cir. 1993). Jury nullification is the “exercise of jury discretion in favor of a defendant whom the jury nonetheless believes to have committed the act with which he is charged.” THOMAS ANDREW GREEN, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON THE ENGLISH CRIMINAL JURY TRIAL, 1200-1800 xiii (1985). 7/24/07 3 intellectual atmosphere in the founding era, including the perspectives of the history and philosophers that the Founders studied and respected. Part III.B discusses contemporary definitions of "jury" and Part III.C details the history known to the Founders of how juries had acted to protect liberty. Part III.D presents the extensive commentary by the Founders on the role of the jury. Part III.E looks at the explicit state constitutional provisions protecting jury review of the law and similar language to that effect in the Sedition Act, and Part III.F covers courtroom practices in the founding era. Part IV addresses the significant arguments disputing that the Founders considered jury law-judging an integral part of the definition of the criminal trial jury. Several of the sources normally used by originalists in interpreting the Constitution do not give us evidence of the Founders’ views on the issue. There are no explicit textual references to jury review of law in the U.S. Constitution, and the issue was not discussed in the Constitutional Convention or the Federalist papers. We do, however, have a quote from the Massachusetts convention ratifying the U.S. Constitution and individual rights provisions in the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790. We also have multiple quotes from the most prestigious Founders on the topic, including three of the six original U.S. Supreme Court Justices. We have examples of practice in the early courts and two dictionary definitions from the founding era. But, the most powerful argument for what this analysis will contend was the Founders’ perspective on jury power is their views on natural law and the logical application of natural law philosophy to the institution of the criminal trial jury. II. The Originalist Method 7/24/07 4 Justice Scalia described the originalist method in a speech in 1988 that was recorded in a law review article entitled Originalism: The Lesser Evil2 and in an essay entitled Common-Law Courts in a Civil-Law System.3 He applied the approach to the Sixth Amendment in United States v. Gaudin4 and Crawford v. Washington.5 The objective of originalism is “to establish the meaning of the Constitution, in 1789.”6 This is done by using the evidence of “the text of the Constitution and its overall structure,” contemporaneous understandings of the Constitutional doctrine in question (“particularly the understanding of the First Congress and of the leading participants in the Constitutional Convention”), the “background understanding” of the doctrine in question “under the English constitution,” and the nature of the doctrine in question “under the various state constitutions in existence when the federal Constitution was adopted.”7 Also to be considered are “the records of the ratifying debates in all the states.”8 Originalism also requires “immersing oneself in the political and intellectual atmosphere of the time – somehow placing out of mind [the] knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.”9 When doing
Load more

Recommended publications
  • "This Court Doth Keep All England in Quiet": Star Chamber and Public Expression in Prerevolutionary England, 1625–1641 Nathaniel A
    Clemson University TigerPrints All Theses Theses 8-2018 "This Court Doth Keep All England in Quiet": Star Chamber and Public Expression in Prerevolutionary England, 1625–1641 Nathaniel A. Earle Clemson University, [email protected] Follow this and additional works at: https://tigerprints.clemson.edu/all_theses Recommended Citation Earle, Nathaniel A., ""This Court Doth Keep All England in Quiet": Star Chamber and Public Expression in Prerevolutionary England, 1625–1641" (2018). All Theses. 2950. https://tigerprints.clemson.edu/all_theses/2950 This Thesis is brought to you for free and open access by the Theses at TigerPrints. It has been accepted for inclusion in All Theses by an authorized administrator of TigerPrints. For more information, please contact [email protected]. "THIS COURT DOTH KEEP ALL ENGLAND IN QUIET" STAR CHAMBER AND PUBLIC EXPRESSION IN PREREVOLUTIONARY ENGLAND 1625–1641 A Thesis Presented to the Graduate School of Clemson University In Partial Fulfillment of the Requirements for the Degree Master of Arts History by Nathaniel A. Earle August 2018 Accepted by: Dr. Caroline Dunn, Committee Chair Dr. Alan Grubb Dr. Lee Morrissey ABSTRACT The abrupt legislative destruction of the Court of Star Chamber in the summer of 1641 is generally understood as a reaction against the perceived abuses of prerogative government during the decade of Charles I’s personal rule. The conception of the court as an ‘extra-legal’ tribunal (or as a legitimate court that had exceeded its jurisdictional mandate) emerges from the constitutional debate about the limits of executive authority that played out over in Parliament, in the press, in the pulpit, in the courts, and on the battlefields of seventeenth-century England.
    [Show full text]
  • Signers of the United States Declaration of Independence Table of Contents
    SIGNERS OF THE UNITED STATES DECLARATION OF INDEPENDENCE 56 Men Who Risked It All Life, Family, Fortune, Health, Future Compiled by Bob Hampton First Edition - 2014 1 SIGNERS OF THE UNITED STATES DECLARATION OF INDEPENDENCE TABLE OF CONTENTS INTRODUCTON Page Table of Contents………………………………………………………………...………………2 Overview………………………………………………………………………………...………..5 Painting by John Trumbull……………………………………………………………………...7 Summary of Aftermath……………………………………………….………………...……….8 Independence Day Quiz…………………………………………………….……...………...…11 NEW HAMPSHIRE Josiah Bartlett………………………………………………………………………………..…12 William Whipple..........................................................................................................................15 Matthew Thornton……………………………………………………………………...…........18 MASSACHUSETTS Samuel Adams………………………………………………………………………………..…21 John Adams………………………………………………………………………………..……25 John Hancock………………………………………………………………………………..….29 Robert Treat Paine………………………………………………………………………….….32 Elbridge Gerry……………………………………………………………………....…….……35 RHODE ISLAND Stephen Hopkins………………………………………………………………………….…….38 William Ellery……………………………………………………………………………….….41 CONNECTICUT Roger Sherman…………………………………………………………………………..……...45 Samuel Huntington…………………………………………………………………….……….48 William Williams……………………………………………………………………………….51 Oliver Wolcott…………………………………………………………………………….…….54 NEW YORK William Floyd………………………………………………………………………….………..57 Philip Livingston…………………………………………………………………………….….60 Francis Lewis…………………………………………………………………………....…..…..64 Lewis Morris………………………………………………………………………………….…67
    [Show full text]
  • The Governors of New Jersey' Michael J
    History Faculty Publications History Summer 2015 Governing New Jersey: Reflections on the Publication of a Revised and Expanded Edition of 'The Governors of New Jersey' Michael J. Birkner Gettysburg College Follow this and additional works at: https://cupola.gettysburg.edu/histfac Part of the American Politics Commons, Political History Commons, and the United States History Commons Share feedback about the accessibility of this item. Birkner, Michael J. "Governing New Jersey: Reflections on the Publication of a Revised and Expanded Edition of 'The Governors of New Jersey.'" New Jersey Studies 1.1 (Summer 2015), 1-17. This is the publisher's version of the work. This publication appears in Gettysburg College's institutional repository by permission of the copyright owner for personal use, not for redistribution. Cupola permanent link: https://cupola.gettysburg.edu/histfac/57 This open access article is brought to you by The uC pola: Scholarship at Gettysburg College. It has been accepted for inclusion by an authorized administrator of The uC pola. For more information, please contact [email protected]. Governing New Jersey: Reflections on the Publication of a Revised and Expanded Edition of 'The Governors of New Jersey' Abstract New Jersey’s chief executive enjoys more authority than any but a handful of governors in the United States. Historically speaking, however, New Jersey’s governors exercised less influence than met the eye. In the colonial period few proprietary or royal governors were able to make policy in the face of combative assemblies. The Revolutionary generation’s hostility to executive power contributed to a weak governor system that carried over into the 19th and 20th centuries, until the Constitution was thoroughly revised in 1947.
    [Show full text]
  • The Prerogative and Environmental Control of London Building in the Early Seventeenth Century: the Lost Opportunity
    The Prerogative and Environmental Control of London Building in the Early Seventeenth Century: The Lost Opportunity Thomas G. Barnes* "What experience and history teach is this-that people and governments never have learned anything from history or or acted on principles deducted from it." Undaunted by Hegel's pessimism, Professor Barnes demonstrates that our current concern for the environment is not as new as we might suppose. The most considerable, continuous, and best docu- mented experiment in environmental control in the Common Law tradition was conducted before the middle of the seventeenth century. An almost accidental circumstance determined that this experiment would become a lost opportunity. Now if great Cities are naturally apt to remove their Seats, I ask which way? I say, in the case of London, it must be West- ward, because the Windes blowing near . [three-fourths] of the year from the West, the dwellings of the West end are so much the more free from the fumes, steams, and stinks of the whole Easterly Pyle; which where Seacoal is burnt is a great matter. Now if [it] follow from hence, that the Pallaces of the greatest men will remove Westward, it will also naturally fol- low, that the dwellings of others who depend upon them will creep after them. This we see in London, where the Noble- mens ancient houses are now become Halls for Companies, or turned into Tenements, and all the Pallaces are gotten West- ward; Insomuch, as I do not doubt but that five hundred years hence, the King's Pallace will be near Chelsey, and the old building of Whitehall converted to uses more answerable to their quality, .
    [Show full text]
  • 7 Self-Image and Public Image in the Career of a Jacobean Magistrate: Sir John Newdigate in the Court of Star Chamber Steve Hindle
    7 Self-image and public image in the career of a Jacobean magistrate: Sir John Newdigate in the Court of Star Chamber Steve Hindle Sir John Newdigate of Arbury, Warwickshire (1571–1610) has come to be regarded as the ideal type of ‘the public man’ in early Stuart England. Richard Cust’s painstaking analysis of his commonplace books has demonstrated how Newdigate aspired to personify the conscientious magistrate fired with the zeal of civic duty.1 Newdigate’s reading strategy arguably exemplifies the formation of the political culture of the provincial magistracy, revealing how the central themes of Renaissance political thought were internalised in the gentry parlour and on the sessions bench. Through the lens of Newdigate’s early schooling and exhaustive programme of continuing education, Cust suggests, we can see how a common stock of aphorisms and examples helped inculcate the values of civic humanism – wisdom, incorruptibility, courage, love of justice, love of country and, above all, love of God – which were supposed to unite the gentry as a governing class.2 Newdigate’s lived experience as an active magistrate was, nonetheless, rather more controversial than this pious self-image suggests. During the very period when he was so assiduously ‘reading for magistracy’, Newdigate’s personal and public roles as landlord and justice of the peace respectively brought him into conflict both with his own tenants and with the law officers of the crown. In June 1607, during the ‘commotion time’ of the Midland Rising (that series of anti-enclosure protests that convulsed the counties of Leicestershire, Northamptonshire and Warwickshire) Newdigate suppressed a series of riots on his own estate at Arbury.
    [Show full text]
  • Saving the Press Clause from Ruin: the Customary Origins of a 'Free Press' As Interface to the Present and Future
    Cleveland State University EngagedScholarship@CSU Law Faculty Articles and Essays Faculty Scholarship 2012 Saving the Press Clause from Ruin: The Customary Origins of a 'Free Press' as Interface to the Present and Future Kevin F. O'Neill Cleveland State University, [email protected] Patrick J. Charles Follow this and additional works at: https://engagedscholarship.csuohio.edu/fac_articles Part of the First Amendment Commons How does access to this work benefit ou?y Let us know! Original Citation Kevin F. O'Neill, Saving the Press Clause from Ruin: The Customary Origins of a 'Free Press' as Interface to the Present and Future 2012 Utah Law Review 1691. This Article is brought to you for free and open access by the Faculty Scholarship at EngagedScholarship@CSU. It has been accepted for inclusion in Law Faculty Articles and Essays by an authorized administrator of EngagedScholarship@CSU. For more information, please contact [email protected]. SAVING THE PRESS CLAUSE FROM RUIN: THE CUSTOMARY ORIGINS OF A “FREE PRESS” AS INTERFACE TO THE PRESENT AND FUTURE Patrick J. Charles* & Kevin Francis O’Neill** Abstract Based on a close reading of original sources dating back to America’s early colonial period, this Article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the Article critiques recent scholarship in the field and reassesses the Supreme Court’s Press Clause jurisprudence. Finally, the Article describes the likely impact of its historical findings if the Court ever employed
    [Show full text]
  • Indelible Ink – the Trial of John Peter Zenger and the Birth of America’S Free Press
    BOOK REVIEW By M. KELLY TILLERY Indelible Ink – The Trial of John Peter Zenger and the Birth of America’s Free Press ichard Kluger won the Pulitzer in late 1733. Alexander and Morris RPrize for his masterful expose intended to use it as a vehicle to make of the cigarette industry in Cosby and his royal administration Ashes to Ashes in 1996, and his study accountable to the people. As the most of school desegregation, Simple Justice prominent and wealthy lawyer in New (1975), is a classic. His latest, equally York, Alexander had a lot to lose and excellent if less controversial should be thus concealed his involvement, lest he of interest to every Philadelphia Lawyer. be charged with seditious libel or worse. Indelible Ink is the most thoughtful, Zenger was a businessman without comprehensive and well-researched any particular political leanings, but study of the 1735 criminal trial in New he knew this was risky business. So York City of newspaper publisher John he made a deal. He would print, and Peter Zenger on charges of seditious Morris and Alexander would write, but libel. While you may know that Zenger Alexander would pay for everything and was acquitted, that he was defended by a defend him for free if he was charged. Philadelphia lawyer Andrew Hamilton, And Zenger would not betray his and that his victory was based upon the backer’s identity. defense of truth, Kluger sets forth so The newspaper was a hit as each much more. And, it is not all what you issue turned up the heat on Cosby.
    [Show full text]
  • Lehigh Preserve Institutional Repository
    Lehigh Preserve Institutional Repository Indian policy and the new york fur trade, 1674- 1765 Cutcliffe, Stephen H. 1973 Find more at https://preserve.lib.lehigh.edu/ This document is brought to you for free and open access by Lehigh Preserve. It has been accepted for inclusion by an authorized administrator of Lehigh Preserve. For more information, please contact [email protected]. _t},1b,.IAN Po:LIC'l A:No· THE NE\~ YO.Rl( ·F.UR: :'f R;\pE.-, 1674-1765 lly .,:: .... , St·epben: ·a •. Cu-tcliffe . A THESIS Presented to the Graduate Faculty of Lehigh University in ··C·andidacy for the Degree of .. • Master of Arts Le.h1gh University 1973 :.- ; This t·hesis· is acc-epted and approved: in partial fulfil--lment ·- '. ·i of the req~.irements for the degree of Ma.ster of Arts. -,,.,_.,. :~."l'fil· /i/.,t ·, ' ' 6. ofessor in Charge Cha'irman. of Iii story Department .. .. 11 "",.. TABLE OF -CONTE·N,TS. ..... - .. AB·STRACT l ·tNtRODUCTIO-N . .. .. •·. .. :• . .: Covenant Chain and C-HA.··PT. ER. ON.JI Evolution of the Anglo-Iroquois Relations, 1674-1701 • • 13 Neutrality and the Primacy of Fur, 1701-1720 ••••••••• , •• • • • 48 and Failure of a U.n:if orm· . ·111R·E:E.. .- -' CHAPTE.R. '. - . .. .. .. Formulation Indian Policy, 1720-1744 ••••• ,•.• 81. -CH-A-PTER .FOUR The Culmination of Imperictl- p·q,1:.ic-y, •: • • 109 ._. 132 CONCLUSION. • • . ,. ... .. .. .. 136 Bibliography • • . •: . ,: ,: .. ' . Appendix • • • . ··• '• . .... ... .. 144 148 Vita •• • • • • • • • •,· ' .. ·•· ·• •· ,•. •·· :.e· 111 I :FUJ{ T·AA.OE .ST:'AT1S'.f.IC:s. Dates .Pa.g:e• 7'7 - .. 8·0: 1699-1719 • • •• . .. .·. :, ... ·• . ·• :, ·• ••• • • • • • .10:s ..-10:s 1720-1744 • • • • . ·• • •. .:. •. .• ••. =• ·• . .. .. • • • ·,, :, .... 1745-1766 • • • • • ..
    [Show full text]
  • Lawyers and Litigants in Stuart England a County Sample William B
    Cornell Law Review Volume 24 Article 3 Issue 4 June 1939 Lawyers and Litigants in Stuart England A County Sample William B. Willcox Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation William B. Willcox, Lawyers and Litigants in Stuart England A County Sample , 24 Cornell L. Rev. 533 (1939) Available at: http://scholarship.law.cornell.edu/clr/vol24/iss4/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. LAWYERS AND LITIGANTS IN STUART ENGLAND A COUNTY SAMPLE WILLIA-M B. WILLCOX The English of the seventeenth century were a litigious race, who deplored their addiction to lawsuits without attempting to restrain it. They wept, but they went on suing. This fever of the times raged in city and country, among all classes, and its records are the voluminous archives of the courts. It is an interesting characteristic of the period, and its records have an added interest. The archives, particularly those of the London courts, are a mine of in- formation about the English people as they were, a mine which is only beginning to be opened. It is the purpose of this paper to dig an experimental shaft in a new direction: to examine the most illuminating cases in one county during the half century before the, Civil Wars, in order to examine through them the men and life of the times.' The county selected is Gloucestershire, at the head of the Bristol Channel and at the foot of the Vale of Severn.
    [Show full text]
  • Henry and Robert Danvers
    32 THE BAPTIST QUARTERLY will help to build bridges between the W.C.C. and the Lausanne/Pattaya approach, and between Protestant, Catholic and Orthodox. It was a privilege to attend such a gathering, to meet such a wide range of Christian experience from all over the world, and to be the recipient of so much first-class theological thinking. I do recommend, particularly, if readers can get hold of it, Bishop John V. Taylor's address on "The Church witnesses to the Kingdom" and also Kosuke Koyama's address on "The Crucified Christ challenges Human Power" - these were undoubtedly the two finest pieces of thinking put before the conference. Raymond Fung's address "Good News to the Poor - the case for a missionary movement" is also very good value. Extracts from these addresses, together with other reports of the conference can be found in the latest issue of the International Review of Mission, Vol. LXIX (275) July 1980. Issues of I.R.M. from about mid-1978 onwards give further background to the Melbourne conference. I returned home from Melbourne with a deepened awareness of the richness and variety of the people of God, and with a renewed confidence in the power and relevance of the gospel. P. CLEMENTS-JEWERY, Minister, Wigan Baptist Church. The Tangled Careers of Two Stuart Radicals: Henry and Robert Danvers IN the decades after the restoration of the Stuart monarchy in 1660, most Baptists adjusted themselves to the new regime by practising quiescent obedience in political matters and worshipping as best they could in conventicles.
    [Show full text]
  • The History of England A. F. Pollard
    The History of England A study in political evolution A. F. Pollard, M.A., Litt.D. CONTENTS Chapter. I. The Foundations of England, 55 B.C.–A.D. 1066 II. The Submergence of England, 1066–1272 III. Emergence of the English People, 1272–1485 IV. The Progress of Nationalism, 1485–1603 V. The Struggle for Self-government, 1603–1815 VI. The Expansion of England, 1603–1815 VII. The Industrial Revolution VIII. A Century of Empire, 1815–1911 IX. English Democracy Chronological Table Bibliography Chapter I The Foundations of England 55 B.C.–A.D. 1066 "Ah, well," an American visitor is said to have soliloquized on the site of the battle of Hastings, "it is but a little island, and it has often been conquered." We have in these few pages to trace the evolution of a great empire, which has often conquered others, out of the little island which was often conquered itself. The mere incidents of this growth, which satisfied the childlike curiosity of earlier generations, hardly appeal to a public which is learning to look upon historical narrative not as a simple story, but as an interpretation of human development, and upon historical fact as the complex resultant of character and conditions; and introspective readers will look less for a list of facts and dates marking the milestones on this national march than for suggestions to explain the formation of the army, the spirit of its leaders and its men, the progress made, and the obstacles overcome. No solution of the problems presented by history will be complete until the knowledge of man is perfect; but we cannot approach the threshold of understanding without realizing that our national achievement has been the outcome of singular powers of assimilation, of adaptation to changing circumstances, and of elasticity of system.
    [Show full text]
  • Freedom of the Press: Croswell's Case
    Fordham Law Review Volume 33 Issue 3 Article 3 1965 Freedom of the Press: Croswell's Case Morris D. Forkosch Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Morris D. Forkosch, Freedom of the Press: Croswell's Case, 33 Fordham L. Rev. 415 (1965). Available at: https://ir.lawnet.fordham.edu/flr/vol33/iss3/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Freedom of the Press: Croswell's Case Cover Page Footnote The instant study was initiated by Professor Vincent C. Hopkins, S.J., of the Department of History, Fordham University, during 1963. In the spring of 1964 be died, leaving an incomplete draft; completion necessitated research, correction, and re-writing almost entirely, to the point where it became an entirly new paper, and the manuscript was ready for printing when the first olumev of Professor Goebel's, The Law Practice of Alexander Hamilton (1964), appeared. At pages 775-SO6 Goebel gives the background of the Croswell case and, because of many details and references there appearing, the present article has been slimmed down considerably. However, the point of view adopted by Goebel is to give the background so that Hamilton's participation and argument can be understood. The purpose of the present article is to disclose the place occupied by this case (and its participants) in the stream of American libertarian principles, and ezpzdally those legal concepts which prevented freedom of the press from becoming an everyday actuality until the legislatures changed the common law.
    [Show full text]