A recent article on history and legal ethics mischaracterizes Henry Lord Brougham’s threat in Queen Caroline’s case as “blackmail.” Actually, Brougham’s threat was graymail, a tactic that is used to this day. A leading practitioner was Edward Bennett Williams, who threatened in one case that if the prosecution of his client, a former head of the CIA, went to trial, evidence would come out that would force the U.S. to close all of its embassies in Central and South America.
Blackmail uses the disclosure of information as a sword, e.g., give me money or I will reveal harmful information about you. Graymail is used defensively, as illustrated above – a threat to use admissible evidence in defense. In Caroline’s case, Brougham (pronounced Broom) had both documentary and witness evidence that the King had secretly married a Catholic, Mrs. Fitzherbert. Under the Act of Settlement, marriage to a Catholic required the King to forfeit the crown “as if he were dead.”
Since the Bill of Pains and Penalties against Caroline sought her divorce from the King on grounds of adultery, Brougham had the right, on her behalf, to prove that Caroline could not have committed adultery because her supposed marriage to the King was bigamous.
The proceeding had its criminal aspect as, in effect, a bill of attainder, but it was essentially a divorce action. And no one, including Brougham, had any doubt that Caroline had committed, as charged, “licentious, disgraceful, and adulterous intercourse” with Bartolomeo Bergami, “a foreigner of low station.”
Although supporters of the King criticized his tactic, Brougham’s defense was acclaimed as “brilliant,” he was “the hero of the hour,” and he subsequently became Lord Chancellor. In his memoirs fifty years later, Brougham reaffirmed the correctness of what he had done.
In a sense, graymail is the flip side of the “national secrets” defense, used (not always justifiably) by government officials to prevent suits for depriving people of their rights in 1983 actions.
Blackmail uses the disclosure of information as a sword, e.g., give me money or I will reveal harmful information about you. Graymail is used defensively, as illustrated above – a threat to use admissible evidence in defense. In Caroline’s case, Brougham (pronounced Broom) had both documentary and witness evidence that the King had secretly married a Catholic, Mrs. Fitzherbert. Under the Act of Settlement, marriage to a Catholic required the King to forfeit the crown “as if he were dead.”
Since the Bill of Pains and Penalties against Caroline sought her divorce from the King on grounds of adultery, Brougham had the right, on her behalf, to prove that Caroline could not have committed adultery because her supposed marriage to the King was bigamous.
The proceeding had its criminal aspect as, in effect, a bill of attainder, but it was essentially a divorce action. And no one, including Brougham, had any doubt that Caroline had committed, as charged, “licentious, disgraceful, and adulterous intercourse” with Bartolomeo Bergami, “a foreigner of low station.”
Although supporters of the King criticized his tactic, Brougham’s defense was acclaimed as “brilliant,” he was “the hero of the hour,” and he subsequently became Lord Chancellor. In his memoirs fifty years later, Brougham reaffirmed the correctness of what he had done.
In a sense, graymail is the flip side of the “national secrets” defense, used (not always justifiably) by government officials to prevent suits for depriving people of their rights in 1983 actions.
Thomas Shaffer, American Legal Ethics 204-06 (1985) correctly refers to it as "greymail."
I once made the mistake of suggesting that the King's secret marriage was illegal. It was legal but had the potential legal consequence of forcing him to give up the crown, as you point out.
Posted by: Rick Underwood | December 14, 2012 at 03:11 PM
The American Heritage Dictionary of the English Language (5th ed.) spells it graymail, with no entry for greymail. So too Garner's Dictionary of Legal Usage (3d ed.). Garner says the term came into usage in the 1970s, but Brougham appears to have been the first practitioner.
Posted by: Monroe Freedman | December 14, 2012 at 03:53 PM
Blackmail or Graymail? In both cases the threat is to disclose embarrassing information unless the other side cooperates. I fail to see how the use of the information as a sword or shield is consequential, but perhaps I miss a meaningful distinction that is other than purely formal. I am not surprised that when lawyers wish to use the tactic to their and their client's advantage they find a label the neutralizes the blameworthiness of the conduct. If we lawyers are good at anything it making the formal appear substantial.
Posted by: Jim Fischer | December 17, 2012 at 01:01 PM
The blackmailer demands something he is not entitled to. That’s why I said the blackmailer uses the information as a sword.
In Queen Caroline’s case, she had a right not to be put to trial for adultery because, as Brougham could prove beyond doubt, she was not married to the King and therefore could not be guilty of adultery. Brougham was therefore seeking something Caroline was entitled to – to be free of a trial on a baseless charge. That’s why I said he was using it as a shield.
One can criticize the triteness or the aptness of my metaphors, but not the distinction between blackmail and what Brougham did. That's why a different word, graymail, is appropriate.
Posted by: Monroe Freedman | December 18, 2012 at 05:51 AM
You can say the same thing about the blackmailer - that he is doing something he is entitled to do, which disclose harmful information about the victim. The common theme in each case is the "quid pro quo" -- if you, the victim, cooperate, I will not disclose. I don't see the difference, but maybe I'm alone on this. Won't be the first time.
Posted by: Jim Fischer | December 18, 2012 at 11:55 AM
You're right that the blackmailer has a right of free speech, and the graymailer has a right to introduce evidence at trial. I don't think, though, that that is the correct parallel. Focus instead, as you suggest, on the quid pro quo.
The blackmailer's qpq is something he is not entitled to.
The Queens qpq was avoiding a baseless trial, which she was entitled to do.
Posted by: Monroe Freedman | December 18, 2012 at 05:04 PM