Unwarranted

John Barrell

  • John Wilkes: The Scandalous Father of Civil Liberty by Arthur Cash
    Yale, 482 pp, £19.95, February 2006, ISBN 0 300 10871 0

The last time I wrote for the LRB, I mentioned a speech made by Tim Collins, the then shadow education secretary, calling for a review of the teaching of history in schools. ‘Nothing is more important to the survival of the British nation,’ he had declared, ‘than an understanding among its young of our shared heritage and the nature of the struggles, foreign and domestic, which have secured our freedoms … a nation which loses sight of its past cannot long expect to enjoy its future.’ A Tory politician asking us to include among ‘the national heroes of our past’ those who had ‘struggled to widen the franchise’ – usually in the teeth, Collins did not add, of ruthless Tory opposition – was obviously too much (or so I choose to believe) for the electors of Westmorland and Lonsdale, who responded at the last election by making Collins one of the very few Tory MPs to lose his seat.

Now, Bill Rammell, the intrepid minister for higher education, has picked up the black spot that fell from Collins’s hand. He has set up a review which is apparently likely to recommend that citizenship classes should deal with the ‘core British values’ of democracy, freedom of speech, fairness and responsibility, and how they have developed in Britain’s ‘cultural and social history’. Collins had a majority of more than three thousand, and lost by 267; Rammell is holding Harlow by less than a hundred votes. It will be interesting to see how his constituency feels at the next election about a government minister proposing to make schoolchildren learn a history which the government itself would surely rather ignore. If he loses his seat, as he surely will, he will have had fair warning.

One of those with a strong claim to be remembered for his efforts in securing democracy, freedom of speech and fairness was John Wilkes, the subject of Arthur Cash’s informative and enjoyable new biography. Now that ‘high politics’ is taught less and less in schools and universities, Wilkes’s great political achievements, which included lowering the tone of high politics, are less and less remembered, and he is probably now best known as a member of the Hellfire Club and for his involvement in the editing and publishing of his friend Thomas Potter’s poem An Essay on Woman, which succeeded in lowering the tone even of pornography. Cash told the full story of that poem in ‘An Essay on Woman’ by John Wilkes and Thomas Potter (2001) and does not rehearse it here, although he does insist that the poem is not pornographic at all, just good-natured bawdy, so perhaps I am simply not man enough to enjoy it for what it is. Wilkes’s enemies, many of whom became his friends, all agreed that however roguish and irresponsible they thought him, he was a delightful companion: brilliant, charming and polite. Cash, too, is hugely attracted to Wilkes and can forgive him anything. In his relations with women especially there was much that needed forgiving, but the mistresses he abandoned, at least in Cash’s tolerant account, seem to have regarded him with little rancour.

Summing up Wilkes’s political career to the point at which, 15 years before his death, he was swept out of the mainstream of politics, Cash writes:

By the fall of 1782, Wilkes’s great work was done. General warrants were a thing of the past, and the right to privacy had been recognised as common law. He had established a principle within the House of Commons that the monarch’s speech at the opening of a Parliament could be treated as a speech written by the ministers. He had succeeded in removing the dangerous precedent that the House could make law without the participation of the House of Lords or of the king. He had established the right of electors to elect whomever they please and the principle that no constituency could be represented by anyone they had not elected. He had brought before the British public the injustices of the electoral system and the need for further reform, including the need for universal male suffrage. Because of his efforts, the press was … reporting freely on the debates and speeches in Parliament.

Wilkes’s political legacy is astonishingly impressive, and there is no doubt about the part he would play in Rammell’s revised citizenship classes, should he happen to catch the minister’s eye when the new curriculum is being drafted. Students will be expected, we can easily imagine, to learn all about the ‘core British values’ Wilkes bequeathed to Britain (and the US), but probably not to ask whether his legacy remains intact, and what care the government is taking to ensure its preservation. Law-making by the Commons without the Lords or the king? All sorted: no question of threatening to weaken the power of the second chamber if it undemocratically amends bad bills democratically whipped through the Commons. The injustices of the electoral system? Why worry about electoral reform when so few people see the point of voting anyway. Reporting parliamentary debates? Feel free, but nowadays we don’t really do parliamentary reports, which would be boring; just parliamentary sketches, which are sometimes quite funny.

Take the matter of general warrants, an important issue in the history of both Britain and the United States, so important indeed in the US that they are the subject of the Fourth Amendment to the Constitution. Once, every schoolboy in Britain knew the story of John Wilkes and general warrants, and, if Rammell’s review does as it is told, soon every school pupil will know it again. In between that golden past and the rosy future, however, came the Serious Organised Crime and Police Act and the Terrorism Act.

A few months after the treaty ending the Seven Years’ War, on terms, the opposition felt, much too favourable to France, the parliamentary session was brought to a close by a speech from the throne commending the terms of the peace. In issue no. 45 of his periodical the North Briton, Wilkes attacked the effrontery of the prime minister, George Grenville, in obliging the king to speak in praise of a shameful treaty, though in fact the sentiments in the speech were well known to be those of George III himself. Where the speech expressed the hope that a spirit of concord should prevail throughout the kingdom, Wilkes asked how there could possibly be concord when ‘private houses are now made liable to be entered and searched at pleasure’. He was able to attack the speech so robustly by refusing to subscribe to the fiction that the king’s speech was written by the king, but this refusal opened the way to a prosecution for seditious libel, and George demanded his arrest. Unsure exactly who wrote that issue of the North Briton, for Wilkes refused to acknowledge it, and uncertain who was responsible, along with Wilkes, for publishing it, the ministry took out a general warrant against ‘the Authors, Printers & Publishers’: ‘general’ in that it specified neither the people suspected nor the premises to be searched for evidence. A number of printers were arrested and their shops turned over. Wilkes’s house, which he had turned into a printing works, was ransacked, much of his property was damaged or confiscated, and 49 people were arrested, many of them quite unconnected with the periodical. Wilkes himself was sent to the Tower but, as MP for Aylesbury, was soon released as a matter of parliamentary privilege.

A series of extraordinary events followed. The Commons decided that issue no. 45 was a seditious libel, that in cases of seditious libel MPs did not have the protection of privilege, and that therefore Wilkes was to be expelled from the House. To compound Wilkes’s crime, Earl Sandwich, perhaps the greatest rake and sensualist of the day, read aloud to the House of Lords, in shocked tones, extracts from the Essay on Woman. Wilkes found himself obliged to fight a duel with the MP Samuel Martin, who seems to have been paid by the government to kill him. Both men had to flee to France, and while he was there Wilkes was declared an outlaw. In the meantime, however, he and his associates were challenging the government over the general warrant by which the original arrests and searches had been made. Eventually, Chief Justice Lord Mansfield ruled that the arrest of persons by means of such warrants was illegal. And before that, Lord Chief Justice Pratt ruled that general warrants used to search unspecified premises were ‘totally subversive of the liberty of the subject’. It seemed at last that something like the beginnings of a law of privacy had been established, and that, as the newspapers put it, an Englishman’s home was at last his castle.

And so it remained until last year, when the Serious Organised Crime and Police Act introduced the ‘all-premises warrant’, which was also a feature of the Terrorism Act that followed quickly behind, and which permitted the police to apply for a warrant to search all the premises ‘occupied and controlled by a person specified in the application’. The Select Committee of the House of Lords on the Constitution saw the point straightway: the provision, it noted, ‘raises a question of constitutional principle so far as the existing law on search warrants is concerned, in that ever since the 18th century the traditional emphasis in the common law has been against “general warrants”.’ The all-premises warrant is a prime example of how, as the Bishop of Southwark put it, ‘yesterday’s unthinkable restriction becomes today’s accepted practice’. To be fair, Pratt’s concern was that general warrants gave a right to the agents of the state to search the premises of anyone at all on whom their suspicions ‘may chance to fall’: the new all-premises warrants are general warrants in a rather different sense. They specify the suspects, but not the premises, and they permit multiple searches of those unspecified premises. They seem intended to permit fishing expeditions; they seem to risk encouraging harassment. Most ethnic Englishmen’s homes will no doubt remain their castles, but rather fewer Muslim homes.

General warrants, in the form of ‘writs of assistance’, were used in the American colonies chiefly to enforce the revenue laws: they authorised revenue officers to enter any premises to make unlimited multiple searches for, and to seize, ‘prohibited and uncustomed’ goods. Wilkes became a hero in America as well as in Britain, less for his not always wholehearted support of the rebels as for his attack on general warrants and those he urged his collaborators Dryden Leach and John Entic to undertake. Cities and counties were named after him, and children too, until a descendant of Elizabeth Booth, his father’s cousin, disgraced himself in Ford’s Theater in 1865. Cities were also named after Earl Camden, as Pratt later became, and verbal traces of Pratt’s and Mansfield’s judgments on general warrants, or of Blackstone’s commentary on them, are legible in the Fourth Amendment, adopted in 1789, which states: ‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and 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.’ If, as the select committee argued, the revival of general warrants in the Terrorism Act raises ‘a question of constitutional principle’, a keen school pupil of the near future might well wonder if their prohibition would have been more secure had it been enshrined in the written constitution that we do not have.

The history of the Fourth Amendment suggests not. The record of its original passage in 1789 is tantalisingly incomplete, and leaves some room for doubt about precisely what the founding fathers had in mind when they adopted it in its final form. It is this doubt which has made the meaning of the amendment endlessly open to contestation, a contestation more bitter now than at any point in its history. At issue, as always, is the relation between the two clauses. Does the first clause specify the right that the amendment seeks to protect, freedom from the unreasonable searches and seizures, and the second specify the form of protection the law provides, the need to apply for a warrant issued ‘upon probable cause’? If so, it appears to say that warrantless searches and seizures are of their nature unreasonable, ‘subject only’, the Supreme Court ruled in 1967, ‘to a few specifically established and well-delineated exceptions’, though in recent decades the number of exceptions has grown and grown.

Or are the two clauses independent of each other, the first stipulating that searches and seizures may be made without a warrant, but only on reasonable grounds, the second saying that if they are made by means of a warrant, that warrant must be issued only ‘upon probable cause’? A third, recently developed reading, argues that the only function of the Fourth Amendment was to right the wrong done by English ‘writs of assistance’ – in other words, to prohibit house searches by general warrant or with no warrant at all – and that most of the doctrine that has grown up round the amendment is nothing to do with its original purpose. By this reading, therefore, the amendment, properly understood, would have nothing at all to say about the questions which in recent months have made it once again such a hot issue.

This is the warrantless wiretapping by the National Security Agency of international phone-calls and emails made by American citizens, contrary to the Foreign Intelligence Surveillance Act. You could spend a month reading the arguments this has given rise to, but the long and the short appears to be that the NSA proceeded without warrants because it did not believe it could meet the test of ‘probable cause’ required under the Fourth Amendment and FISA. At one point, invited to justify those wiretaps in the light of the Fourth Amendment, Air Force General Michael Hayden, just confirmed as the new director of the CIA but formerly in charge of the NSA, repeatedly denied the words ‘probable cause’ appeared in the amendment at all. He claimed that it insisted only that searches should be based on reasonable suspicion and that, if they were, as his had been, no warrant was necessary. Quite how the NSA could entertain a reasonable suspicion of every single international communication that passed through AT&T’s circuits he did not explain. The relevance of Wilkes’s struggle against general warrants has not been missed in the US: it is set out in a brief and punchy essay by Shayana Kadidal, one of the lead attorneys in the challenge by the Center for Constitutional Rights to the NSA’s domestic surveillance activities, a challenge the administration is seeking to have dismissed by invoking, as it so often does, state secrets privilege.[*]

This, then, is what is happening to one of the most important parts of Wilkes’s legacy. In Britain, where general warrants are prohibited only by two musty decisions from the 18th century, apparently only too easy to disregard, something very like a general warrant has been revived, 240 years after such warrants were declared ‘illegal and void’. In America, where the reintroduction of general warrants is prohibited by the Bill of Rights, it has turned out to be possible – indeed to be necessary in the War on Terror – to avoid using warrants at all. In 1999, in a much quoted article, Erik Luna of the Chicago Law School wrote that each new addition to the doctrine surrounding the amendment was ‘more duct tape on the amendment’s frame and a step closer to the junkyard’.[†] Bush’s administration has now junked it altogether.

It is fortunate for us and for Cash that he wrote this biography before the worst of the Bush administration’s attacks on the Fourth Amendment became known. He writes as a liberal optimist, and it suits him to see Wilkes as a character in a sunny story in which everything goes on getting better, as if the freedoms Wilkes struggled for and, with the help of many others, apparently secured, had been secured for ever. It is one of the reasons this book, so well researched, so full of fascinating detail, is also so delightfully buoyant. The other is Wilkes himself, who rises above check after check, disappointment after disappointment, to live more and more happily ever after in the hope that we will do the same.

[*] The essay can be found at jurist.law.pitt.edu/forumy/2006/04/suing-ma-bell-to-stop-nsa-wiretapping.php

[†] www.law.duke.edu/journals/dlj/articles/dlj48p787.htm