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.

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 Colonies...to 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 cliffhanger...so 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.

A Fake Consultant Exclusive: “All Suspicious Persons Will Be Monitored."

Many words have been proffered regarding the FISA bill this week, and I was actually preparing an analysis of the events when, to my surprise, I received an email that made me alter my schedule completely.

I want to apologize in advance to Danny Medress, over at Democracy for America, for whom I was preparing the analysis; and all I can tell you, Danny, is that this was of such import that the schedule had to be slipped.

That said, presented here in its entirety is the memo I received …and having read it through, I have to say I feel much safer.

WASHINGTON—July, 10, 2008

FCNS--Officials at the Department of Homeland Security, the National Security Agency, the FBI, and the National Reconnaissance Office jointly announced today that because of the new authorities and tools they have under H.R. 6304, the FISA Amendments Act of 2008, they can now absolutely assure the American people that there will be 100% coverage of every single “suspicious person” in the United States.

DHS Undersecretary Harry Paratestes told the assembled media that two major programs have been implemented to assure that 100% coverage is achieved.

First, the implementation of the “Algorithm Impact Project” which will allow specially-designed software programs to decide which Americans need to be wiretapped.

“The AI Project”, Paratestes said, “is the most effective tool to date to ensure all communications between any possible terrorist is captured and recorded.”

As has been previously reported, the AI Project will direct NSA and NRO resources by starting with a “baseline” assumption that all communications are suspicious until proven to be safe.

“Fortunately, we are responding to the threat posed by all unmonitored communications by instituting a ’full capture’ communications protocol that will capture all the communications that the AI Project does not track as unsafe”, Paratestes reported to a questioner. “This policy ensures that any dangerous communications the AI Project misses are retained for at least 10 years for analysis in case they might later become actionable.”

Paratestes also described, for the first time, the newest of the DHS security innovations to be introduced: the “Binary Management Program”.

“We simply cannot allow any suspicious person to be able to move about freely in the United States” BMP Program Manager Heywood Jablomi told the assembled press, “and to that end we intend to hire 150,000,000 new employees to remain in close contact with the other 150,000,000 suspicious persons in the United States 24 hours a day. This will achieve 100% coverage of any suspicious individuals and simultaneously achieve 100% employment. I’ll say it again, so you know we mean it: all suspicious persons will be monitored.”

Several persons expressed concerns regarding the scope and nature of the program; and those suspicious persons have been removed from the general population for a period of investigation.

“We are looking for a location to site the new detention facility that will be required”, Jablomi told the assembled reporters, “and we can announce today that we are down to two sites for final consideration: Nevada and Wyoming.”

Paratestes ended the meeting with an optimistic assessment of the future: “With everyone in America being monitored, we will finally be free and safe, in peace and freedom from fear, and in true health, through the purity and essence of our natural…fluids. God bless you all.”