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 ar-21ranged 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 23course 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.

WE Command you that you summon Samuel Wright of Wilmington in our said County Yeoman (if he may be found in your Precinct) to appear before Our Justices of Our Inferior Court of Common Pleas 25to be holden at Charlestown within and for Our said County of Middlesex on the last Tuesday of November next, Then and there in Our said Court to answer to Thomas Peirce of Wilmington aforesaid Gentleman in a Plea of Trespass on the Case for that whereas the Said Thomas is and from his Nativity has been a Person of good Name, Fame and Reputation and free from the atrocious Crimes of false Swearing and Perjury, and by his pious and virtuous Behaviour had so far obtained the Esteem and good opinion of the Church of Christ in Wilmington aforesaid as to have been received and to have continued for the Space of fifteen years last past a Member in full Communion with the said Church and also had so far obtained their Esteem and good Opinion as that in the month of February A. Dom. 1766 he was elected and appointed one of the Deacons of the Same Church in which office he has ever since continued; Nevertheless the said Samuel, not ignorant of the Premises, but maliciously minding and contriving to injure the said Thomas in his good Name, Fame and Reputation and to deprive him of the Esteem and good opinion of the Members of the same Church and of all the other Churches of Christ throughout this and the neighbouring Provinces and thereby to deprive him of the Benefits and Comforts of the holy ordinance of the Lords Supper and also to expose the said Thomas to the Pains and Penalties by Law appointed for those who are guilty of wilfull and corrupt Perjury, did on the tenth Day of October instant at Wilmington aforesaid make and publish the following false defamatory scandalous and malicious Libel of and concerning the said Thomas, Vizt.,

“To the Reverend Mr. Isaac Merrill Pastor of the Church of Christ in Wilmington, please to communicate the following Complaint of me the Subscriber against our Brother Deacon Thomas Peirce a Member of the Church in this Place, Vizt: For that I heard the said Thomas Peirce when under the Solemn Oath of God administered by Mr. Justice Johnson about the middle of September last, say and solemnly declare Things contrary to Truth and contrary to his holy Profession, and as I apprehend dishonorary to God and Religion, as I understand the Matter. I also say that I have proceeded with him according to the Gospel Rule; but can obtain no Satisfaction; Wherefore I remain uneasy and dissatisfyed with our Said Brother; Therefore I desire that the Church of Christ in this Place may have an opportunity to hear and inquire further into the matter as the Gospel requires as soon as conveniently may be. Samuel Wright. Wilmington October 10th, 1767.”

Meaning that he the said Samuel had heard the said Thomas commit 26wilfull and corrupt Perjury in a Tryal of a Cause wherein one Zacheus Hibberd was Plaintiff and one Jeremiah Bowen was Defendant at a Court held about the middle of September last before Josiah Johnson Esq. a Justice of the Peace for the County aforesaid, being a Court of Record, and that he the Said Thomas had refused to make Christian Satisfaction therefor when thereto required by the said Samuel, and that therefore he the said Samuel was dissatisfied and uneasy and desired the said Church would deal with the said Thomas according to the Rules prescribed in the Gospel with all convenient Speed.

And the said Samuel afterwards, to wit, on the eleventh Day of October instant at Wilmington aforesaid of his further Malice had against the Plaintiff and still further intending and maliciously contriving to injure that Plaintiff did, in the Presence and hearing of diverse of our leige Subjects being members of the Church of Christ aforesaid with a loud Voice speak and publish the following Words, Vizt: “I” (meaning the said Samuel) “meant thereby” (Speaking of and meaning the Libel aforesaid) “to charge him,” (meaning the said Thomas) “with Perjury.”

By means of which Libel so made and published by the said Samuel as aforesaid, and by the Means of the Words spoken and published by the said Samuel as aforesaid the said Thomas has sustained great Injury in his good name, Fame and Reputation and has been and yet is exposed and in Danger of being deprived of the Blessings, Benefits and Comforts of Church Communion and the holy ordinance of the Lords Supper and has been and yet is exposed to the Infamy and Disgrace of being degraded from his said Office of Deacon of the Church aforesaid and of being excommunicated or Suspended from Communion with all and every of the Churches of Christ thro' the Land and has been and still is exposed to the Pains and Penalties of the Law for Perjury, from all which he has suffered grievous Pain and Anxiety of Mind and has been compelled to expend divers Sums of Money to manifest and make known his Innocence in the Premisses.

All which is To the Damage of the said Thomas as he saith the Sum of five hundred Pounds, which shall then and there be made to appear, with other due Damages; And have you there this Writ, with your Doings therein. Witness Samuel Danforth Esq; at Cambridge the twenty sixth Day of October In the eighth Year of Our Reign, Annoque Domini, 1767.