Henry Hitchcock considers privacy and telegrams (1879) research Note

By Kristopher A. Nelson
in April 2018

200 words / 1 min.
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In 1879, Henry Hitchcock responded to the growing calls for telegrams to receive privacy protections. He analyzed the existing case law, the arguments for or against such protections, and proposed a path forward.

Please note that this post is from 2018. Evaluate with care and in light of later events.

In the aftermath of Congress’ investigations into the disputed Hayes-Tilden election in 1876 (and the use of Congress’ legislative subpoena power—which generally operated in a similar manner to that of the judiciary’s version—to go after potentially relevant telegrams held by Western Union), the question of telegraphic privacy captured the attention of journalists and jurists.

In 1879, Henry Hitchcock, a lawyer St. Louis who helped found the American Bar Association and sometimes represented Western Union in court, published an article, The Inviolability of Telegrams, in the Southern Law Review analyzing the existing case law around the issue and the arguments for and against.

He looked at five cases from 1851 to 1879 (the decision in this last one, ex parte Brown, would be overturned after his article was published) that dealt with the “compulsory production of telegrams in evidence.” He also mentions examples of legislative subpoenas being used as well.