Resistance to Torpor
- Entick v. Carrington: 250 Years of the Rule of Law edited by Adam Tomkins and Paul Scott
Hart, 276 pp, £55.00, September 2015, ISBN 978 1 84946 558 8
When the Earl of Bute resigned as prime minister in April 1763 it looked as if the North Briton, a paper whose vituperative attacks had dogged his administration, had achieved its ambition and would now cease publication. But a week later George III opened the new Parliament with a speech from the throne which, by its support for the peace terms being negotiated with France, reignited the wrath of the North Briton’s flamboyant co-editor John Wilkes and his backers in the City, prompting the publication of another withering issue, number 45. The new prime minister, George Grenville, and his secretary of state, Lord Halifax, decided it was time to put a stop to this constant assault on government policy. Advised by the Treasury solicitor that number 45 constituted a seditious libel, Halifax signed a warrant authorising the King’s Messengers to arrest – without naming anyone – the ‘authors, printers and publishers’ of the paper. The messengers made more than forty arrests and ransacked a series of offices and homes, helping themselves liberally to private papers.
Searches for unlicensed and seditious publications had been authorised by the 1662 Licensing Act, with a concomitant power of arrest for possessing them; but despite Parliament’s refusal in 1695 to renew the act, ministers had not only continued to issue warrants authorising officials to trawl for evidence but were now authorising the arrest of individuals for interrogation. In more than one case, the courts had upheld the entitlement of the Crown’s ministers, as conservators of the peace, to issue search and arrest warrants for crimes against the state. For these purposes, general warrants, which didn’t identify suspects, had proved too useful to be abandoned in spite of long-standing suggestions that they were illegal. So the North Briton raids looked very much like business as usual, and the government and its lawyers were taken by surprise when the raids provoked an avalanche of successful lawsuits, brought not only by the authors and publishers but by the jobbing printers whom the warrants were in large part designed to intimidate.
By July 1763 (litigation in those days could be brisk), 14 printers whose shops had been raided had been awarded almost £3000 by juries in damages for trespass, assault and false imprisonment. The government’s attempt to challenge an award of £300 to the printer William Huckle gave the Court of Common Pleas an opportunity to point out that treating him ‘very civilly’, with ‘beefsteaks and beer’, had not diminished the gravity of the state’s ‘exercising arbitrary power, violating Magna Carta, and attempting to destroy the liberty of the subject’. The judges, manifestly, were not siding with the government any more than jurors were. In December 1763, Wilkes himself was awarded £1000 against the undersecretary of state, Robert Wood, for trespass to his house and papers; and much later, in 1769, he secured judgment for four times that sum against Lord Halifax personally for trespass and false imprisonment. In neither case did the defendant’s counsel try to argue that office as a minister of the crown carried any immunity from civil liability, and the chief justice, Lord Wilmot, told the jury: ‘The law makes no difference between great and petty officers. Thank God, they are all amenable to justice, and the law will reach them if they step over the boundaries which the law has prescribed.’
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