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

Those who are coming to this story today have jumped into the middle of quite a tale. I put myself in a tough position last time by promising to link a British “garden of lust”, Benjamin Franklin, and 18th Century bloggers into a narrative that concludes with the nascent United States of America and its shiny new Fourth Amendment.

So far, amazingly enough, I’m pulling it off.
If you need to catch up, here’s what’s been going on:

When last we met...it was in a world of scandal and intrigue; with King George III and the Earl of Bute (and of course, their assorted minions) very upset with John Entick, author, and John Wilkes, author and world-class raconteur (and drinking buddy to Franklin), because they had the temerity to...well, blog.

The Earl of Bute had taken so much abuse from the Johns that he had been forced to resign from his position as Prime Minister...leaving the minions under his control, many said, only now from behind the scenes.

Something needed to be done...and when you have minions, you put them to use.

In 1762, as the influence of “The Monitor” continued to grow, George Montague Dunk, the Second Earl of Halifax (and a member of the Privy Council) and the highest ranking minion available, issued the King’s Chief Messenger, Nathan Carrington, a general search warrant ordering him to:

“...make strict and diligent search for [Entick], mentioned in the said warrant to be the author, or one concerned in the writing of several weekly very seditious papers intitled, "The Monitor or British Freeholder, No 357, 358, 360, 373, 376, 378, and 380, London, printed to J. Wilson and J. Fell in Paternoster Row," containing gross and scandalous reflections and invectives upon his majesty’s government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring together with his books and papers in safe custody before the earl of Halifax to be examined concerning the premisses, and further dealt with according to law...”

--From the report of Entick v. Carrington, 19 Howell’s State Trials 1030 (1765)

A four hour search was conducted of Entick’s home, and all his books and papers were carried away to be examined in an effort to prove that the charges of seditious libel (essentially, speaking out against the King) were valid.

In what has become one of the most important trials in British legal history—and ours—John Entick sued the messenger, literally, claiming that any general search warrant is inherently invalid, that Carrington should have known this, and that Carrington never should have relied upon the authority of Lord Halifax to permit the search.

If Entick had been trespassed upon, then the papers seized were inadmissible; and that meant Entick could not be convicted of seditious libel. Here’s how Entick’s lawyer put it, again according to Howell’s:

“...As to the second. A power to issue such a [general] warrant as this is contrary to the genius of the law of England; and even if they had found what they searched for, they could not have justified under it. But they did not find what they searched for, nor does it appear that the plaintiff was the author of any of the supposed seditious papers mentioned in the warrant; so that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise.

But the verdict says, such warrants have been granted by secretaries of state ever since the Revolution. If they have, it is high time to put an end to them; for if they are held to be legal, the liberty of this country is at an end. It is the publishing of a libel which is the crime, and not the having of it locked up in a private drawer in a man’s study. But if having it in one’s custody was the crime, no power can lawfully break into a man’s house and study to search for evidence against him. This would be worse than the Spanish inquisition; for ransacking a man’s secret drawers and boxes, to come at evidence against him, is like racking his body to come at his secret thoughts...

... But it is said, if the secretary of state has power to commit, he has power to search, etc. as in the case of stolen goods. This is a false consequence, and it might as well be said he has a power to torture.”

We need to take a moment to discuss the meaning of a general warrant—and all of a sudden we get to the part where our very own Fourth Amendment enters the story. Rather than tackling the legal issue myself, I’ll quote from the United States Supreme Court’s ruling in Stanford v. Texas, 379 U.S. 476 (1965), a seized books case:

“...The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid - a general warrant...

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever "be secure in their persons, houses, papers, and effects" from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.

The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer."

The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,' said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'"

What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or...the arrest and seizure of all the papers of a named person thought to be connected with a libel

Two centuries have passed since the historic decision in Entick v. Carrington, almost to the very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant - no less than the law 200 years ago shielded John Entick from the messengers of the King.”

And in fact Carrington did lose the lawsuit to Entick. This, from the ruling in Entick v Carrington, 95 Eng. Rep. 807 K.B. (1765):

“...our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the [Glorious] Revolution [of 1688], and if that would have justified them they have not averred it in their plea, so it could not be put, nor was in issue at the trial; we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have...

... The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole...By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him....”

So Entick won.
But what about Wilkes?

Well, the “triple headed, Cerebrean” Government Wilkes referenced in “The North Briton” No. 45 prosecuted him for seditious libel as well, using another general search warrant to effect the seizure of evidence.

Wilkes was able to prevail at trial by invoking his Parliamentary immunity from arrest on libel charges. Quoting Wilkes, describing the still-upcoming trial:

[The case will] "teach ministers of arbitrary principles, that the liberty of an English subject is not to be sported away with impunity, in this cruel and despotic manner...[and also] "determine at once whether English liberty be a reality or a shadow."

Then Wilkes returned the favor—figuratively “suing the messenger” in the second of our illegal warrant blockbusters, Wilkes v. Wood, 98 Eng. Rep. 489 (1763)
.
In fact, he’s the one who sued first...and based on the events of his trial, Entick filed the lawsuit against Carrington that we just discussed. A few words from the report of the trial:

“...Serjeant Glynn [defense counsel], then enlarged fully, on the particular circumstances of the case, but remarked that the case extended far beyond Mr. Wilkes personally, that it touched the liberty of every subject of this country, and if found to be legal, would shake that most precious inheritance of Englishmen. In vain has our house been declared, by the law, our asylum and defence, if it is capable of being entered, upon any frivolous or no pretence at all, by a Secretary of State...

That of all offences that of a seizure of papers was the least capable of reparation; that, for other offences, an acknowledgement might make amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made. That the law never admits of a general search-warrant. That in France, or Spain, even in the Inquisition itself, they never delegate all infinite power to search, and that no magistrate is capable of delegating any such power...”

And a few words from the Lord Chief Justice in his verdict:

“...When we consider the persons concerned in this affair, it ceases to be an outrage to Mr. Wilkes personally, it is an outrage to the constitution itself...

Secretary Williamson, in Charles the Second’s time, for backing an illegal warrant, was sent to the Tower by the House of Commons. The jury, he observed, had no such power to commit; he knew it well; but, for his part, he wished they had, as he was persuaded they would exercise it, in the present case, as it ought to be...”

The Government response to their defeat?
To prosecute Wilkes for a very, very naughty joke indeed.

It turns out that back in the crazy Monks of Medmenham days Wilkes...apparently...co-authored an exceptionally ribald book called “An Essay on Woman”, a parody of Alexander Pope’s “Essay on Man”...and here was a chance to strike back at Wilkes...if only the annoying immunity thing wasn’t in the way.

So he was promptly thrown out of Parliament, and then charged with blasphemous libel. He immediately fled the country, spending four years in exile.

Now here’s the good part: Wilkes decided to return, because, despite his outlaw status, he had been elected to Parliament (again) in April 1768. He was the subject of riots in the nights following his surrender; and it is reported that 11 persons were killed as a result of the public outcry over his imprisonment. (Matter of fact, it’s also reported that the anger over the issues surrounding Wilkes’ arrest was so profound that it reached across the Atlantic...so profound that the cities of Wilkes-Barre, Pa., and Wilkesboro, N.C. bear his name.)

A political party, the Wilkites, had sprung up...and so had the Government’s anger over Wilkes’ status, which led to his second expulsion from Parliament, on February 3, 1769. On February 16th, he was reelected—and expelled the next day. Exactly one month later...the voters did it again—and so did Parliament.

The score so far?
The British Parliament, 3; The British Voters, 0.

Round four again went to Wilkes, again temporarily—this time by a vote of 1,143 to 296.

In a move reminiscent of the 2000 US Presidential election, Parliament promptly awarded the seat to Wilkes’ opponent, Colonel Henry Lawes Luttrell.

All the while he was still in prison...and while still in prison he was elected an Alderman of London...then he was released...then, ironically, elected Sheriff...then, in 1774, in a move Ken Livingstone could surely appreciate, he was elected Lord Mayor of London—and then finally (fifth time’s the charm!) he was returned to Parliament....and this time they let him stay, which he did for another 16 years.

So remember, roughly 3500 words ago, when I said in Part One that I could draw a direct line between all of this and the FISA debate today and its impact on the Fourth Amendment?

Well, I’m not going to do it.
Instead, I’ll again let the United States Supreme Court address the question, which they do with great eloquence in Stanford v Texas:

"...As MR. JUSTICE DOUGLAS has put it, "The commands of our First Amendment...(as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but `conscience and human dignity and freedom of expression as well...

In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things" are books, and the basis for their seizure is the ideas which they contain...No less a standard could be faithful to First Amendment freedoms.

The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case...”

And that’s the crux of the argument over the FISA compromise.

Should the protection of freedom from warrantless wiretapping “be accorded the most scrupulous exactitude when the "things" are”...not books, but communications?

When we see how wide a net the warrantless wiretapping program cast, does it teach us a lesson about the “constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant”?

And of course, when the Fourth Amendment is endangered, can the First or the Fifth be safe?

Well, it’s been a long journey, Gentle Reader...but we are at the end.

We began this trip in a garden of lust...then we met two 18th Century bloggers...we found ourselves caught up in the struggle over general warrants (which sound mighty familiar in the “warrantless wiretap” context)...and then two extremely important trials...and then the connection between the names of some of our cities and Wilkes...and finally, as I promised, we drew a straight line between the distrust of an overly intrusive Government and our own demands for freedom...which are today again under attack.

The circle has been closed, and with that, I bid you good day.