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Monday, July 14, 2008

On The Weird Twists Of History, Part One, Or, Why We Have A Fourth Amendment

This may be one of the strangest tales I have ever brought to the table, Gentle Reader, and yet one of the most fundamental in describing the birth of our Bill of Rights...and most especially the Fourth Amendment.

As many of you know, the new FISA compromise may or may not allow warrantless wiretapping of American citizens on a wholesale scale.

Something you may not know is that a similar debate raged in England (centered around the right of Government to seize the papers of whomever they chose, and use the papers as evidence against those persons) during the reign of King George III—or that it involved scandalous sexual behavior, Benjamin Franklin, the 18th Century version of blogging, and two men who decided to take on the corruption of the Crown...and won.

And because of all that, we have a Fourth Amendment today.

Ready for a tale of liberty and ribaldry?
Then let’s plunge right in, shall we?

So you live in 18th century England, you’re rich...and kind of bored.
What is a gentleman to do?

Well as it turns out, one option is to buy an old monastery, expand the cave system underneath, open yourself a well-appointed “garden of lust” with a really cool Latin motto (“Fay Ce Qve Vovdras”...”Do As You Will”), and invite a few of the most powerful men in England...and the join you in heavy drinking and crazy escapades that involve, to give just one example, shipping in prostitutes from London dressed up as nuns for an evening’s entertainment.

Which is exactly what Sir Francis Dashwood did in the village of West Wycombe; just six miles north of London by way of the River Thames.

It was a fabulous situation...the Abbey was secluded, on top of a hill, and shrouded by a grove of trees. The only access to the caves was by boat—and that meant it was possible to hop on a boat in London...and hop off, at the caves, unobserved...and then later, still unobserved, head back home, polite society none the wiser.

The “Monks of Medmenham”, as the group’s members called themselves (they did not call themselves “The Hellfire Club”, legends notwithstanding), did indeed include some of the most important of the English landed gentry (and, it was rumored, some of their wives...): including the Earl of Sandwich, Benjamin Franklin, and the man who will be one of the two focal points of today’s discussion, John Wilkes.

But the thing is, eventually all that romping gets a bit old; and a gentleman again finds himself with time on his hands...

Wilkes was a man with political ambition, and so he set about bribing the local voters to obtain a seat in Parliament...only to find his party tossed out of leadership and into the role of the opposition—which turned out to be perfect for somebody inclined to this sort of humor:

When the Earl of Sandwich, a sometime friend, told him that "you will die either on the gallows, or of the pox," Wilkes said, "That must depend on whether I embrace your lordship's principles or your mistress."

--Jack Lynch, from the article “Wilkes, Liberty, and Number 45

To take the story further we need to know that King George III (who saw “The Madness of King George”?) chose as his Prime Minister his former “finishing tutor”, John Stuart, the Earl of Bute. The new Earl had quite a personal history of his own; in fact there were questions as to whether the new King’s mother and the new Earl had a personal history of their own.

Another item of shared personal history: the new Earl and Wilkes were both members of the Monks of Medmenham.

The Earl of Bute had a problem getting his program through Parliament, and to overcome his inability to “talk up” his ideas (some suggest he experienced antipathy because he was a Scot...something Gordon Brown might well understand) he published “The Briton”, a newspaper published in London...which saw Wilkes answer with “The North Briton”, which, in a time and place that had no free press, began its very first issue of June 5, 1762, thusly:

The liberty of the press is the birth-right of a Briton, and is justly esteemed the firmest bulwark of the liberties of this country. It has been the terror of all bad ministers; for their dark and dangerous designs, or their weakness, inability, and duplicity, have thus been detected and threwn to the public, generally in too strong and just colours for them long to bear up against the odium of mankind. Can we then be surpriz’d that so various and infinite arts have been employed, at one time entirely to cast aside, at another to take off the force, and blunt the edge, of this most sacred weapon, given for the defence of truth and liberty?

This shot across the bow having been fired; Wilkes proceeded to lay 44 more broadsides into the hull of Government, including this quote from the final “The North Briton”, No. 45, in reference to the Earl’s resignation from Government, and the rumors that he still pulled the strings from behind the scenes:

The Scottish minister has indeed retired. Is his influence at an end? Or does he still govern by the three wretched tools of his power, who to their indelible infamy, have supported the most odious of his measures, the late ignominious Peace, and the wicked extension of the arbitrary mode of Excise? The North Briton has been steady in his opposition to a single, insolent, incapable, despotic minister, and is equally ready, in the service of his country, to combat the triple-headed, Cerberean administration, if the Scot is to assume that motley form.

You cannot talk about the Government in this way without consequences, and...well, we’ll come back to that in a minute.

Before we do, I want you to meet John Entick. Entick began his professional career as a schoolmaster, then an author. He had a bit of an eclectic taste—his first book being a Latin grammar, then a book on theology...and in an ironic twist, he at one point tried to publish an edition of Chaucer. He was also famous for his dictionary.

Entick was as upset by the political situation as Wilkes, and he found his voice in “The Monitor, or the British Freeholder”, which was where he wrote this:

...Now, although he allows, that “These Mixed constitutions [as opposed to absolute monarchy] are the very best, that human wisdom could ever discover for the regulation of human societies; yet that these, though perhaps productive of fewer evils, than either of the other, must necessarily partake of the evils belonging to both, and be supported by more or less violence, as they more or less approach the despotic; or of corruption, as they come nearer to the democratic principles: for corruption must always increase in due proportion to the decrease of arbitrary power; since where there is less power to command obedience, there must be more bribery to purchase it, or there can be no government at all...”

You’ll recall my saying that there would be consequences for selling this sort of thing in King George’s and the Earl of Bute’s England, and here’s where we start getting to the heart of the story.

But not today.

Instead, in a development worthy of Luke and Laura, we’re employing the come back in about 36 hours, and we’ll have the King’s messengers roaming the countryside, a spectacular trial or two—and a guy who gets elected to Parliament from his jail cell four times in four months.

And of course, when it’s all over...the United States will have a Fourth Amendment.


Crushed said...

I might refer you to the od case of wilkes' expulsion from the Commons on the basis of 'seditious libel'.

Fascinating constitutional case of where the electorate defied the Commons.

Eventually the Lords ruled the voters, not the commons, had the ultimate say.

fake consultant said...

we are in fact going there...and he's the guy that was elected four times in four months--from his jail cell.

stay tuned.