John Wilkes, the bad boy of 18th century British politics — hated by King George III and beloved by the American colonists —  wasn’t the only inspiration for our Fourth Amendment prohibition against the government using general warrants to search for evidence and to arrest for a crime. But his story was by far the most colorful.

Warrants and General Warrants

A warrant is a document giving lawful authority to an officer of the government (call him “Officer X”) to intrude into the property of a private citizen and search for evidence of a crime.  A warrant can also give an officer the power to arrest for a crime.

A general warrant gives Officer X those powers without any restrictions. Officer X need not have any reasonable suspicion that a crime has been committed or that it has been committed by a particular person in order to search.  Officer X can search any thing, any where, at any time, and then to arrest for any crime found as a result of the search. A general warrant is a license to go fishing for evidence of a crime.  It is a license to harass and destroy a target of government.

A general warrant to search is the stuff of dictators and police states. When Stalin’s Chief of the Secret Police, Lavrentiy Beria, famously said “Show me the man and I’ll show you the crime,” he was referring to his powers to use what we in the West would call a general warrant.

General Warrants To Search & The Writs of Assistance Controversy

In 1760 colonial America, general warrants were very much at issue. Indeed, it was controversy over general warrants that lit the long, slow-burning fuse to the American Revolution.

Circa 1760, the Crown, in an effort to combat smuggling in the colonies, applied a law giving its customs officers the power of general warrants to search the ships, warehouses, and even the private homes of colonists at any time for smuggled goods and evidence of smuggling. It was called the Writs of Assistance controversy. It came to a head in Boston when 63 merchants engaged attorney James Otis Jr. to challenge the Writs of Assistance as unconstitutional in Paxton’s Case.  In his argument before the colony’s highest Court in 1761, Otis framed general warrants as “instruments of slavery on the one hand and villainy on the other,” decrying:

These Writs appear to me 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.

Otis ultimately lost his case, though in fairness, the deck was stacked. British law made corruption inevitable. It provided that Royal Governors were personally enriched by 1/3 of the money gained through first seizing and then reselling smuggled goods and seized property, including even the ships involved in smuggling. Several months earlier, the “infamous” Governor Francis Bernard, in a colony burgeoning with trained lawyers, had appointed a non-lawyer, Thomas Hutchinson, the colony’s Lieutenant Governor, to serve in an additional role as the Chief Justice of the colony’s high court.  Still, as John Adams said of Otis’s impassioned performance that day in court:

Otis was a flame of fire! With a promptitude of Classical Allusions, a depth of research, a rapid summary of historical events & dates, a profusion of Legal Authorities, a prophetic glance of his eyes into futurity, and a rapid torrent of impetuous Eloquence he hurried away all before him. American Independence was then & there born. The seeds of Patriots & Heroes . . . were then & there sown. Every Man of an immense crowded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants. 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. In fifteen years, i. e. in 1776, he grew up to Manhood, & declared himself free.

So where and how does John Wilkes fit into all of this?  (And by the way, if Wilkes’s name seems familiar to you, it might be because a distant relative would later become infamous in America, he being John Wilkes Booth.)

John Wilkes, a Colonial American Celebrity

John Wilkes, in the decade beginning 1760, became a darling of the American colonists, though he never set foot on American soil. He was celebrated as a champion of liberty by colonists who followed his story closely in the newspapers of the day. Patriots from Boston, Mass. to Charleston, S.C. celebrated Wilkes, often drinking 45 toasts in his honor at their gatherings, with the number 45 referring to Wilkes’s publication of the 45th edition of The North Briton newspaper (see below for more about this important publication). British manufacturers sold paraphernalia, including punch bowls, to the colonists with Wilkes’s likeness imprinted thereon.

Colonial reverence for Wilkes was so great that, in South Carolina, the government shut down for nearly two years because the Royal Governor would not approve the budget the colonists in the South Carolina assembly passed authorizing a payment to John Wilkes of several thousand British pounds to help defray his legal expenses.

Who was John Wilkes?

In 1763, John Wilkes was a 38-year-old Whig politician elected to Parliament from Middlesex, a hot bed of unrest among working class Brits. John Wilkes was their iconoclastic hero.  He was radical and unstinting in his attacks on government. With jutting chin and squinty eyes, he was so ugly that he was reputed to be the ugliest man in Britain. But he was also extremely intelligent and sharp of wit.  And, to put it tactfully, he was quite a colorful figure in quite a colorful age.

Understand that the upper crust of 18th century Britain — of which Wilkes was a member — was utterly and openly immoral, and their acts were the fodder for the scandal sheets of the time.  A one-time close friend of Wilkes who played a notable role in the Wilkes saga — and the American Revolution — was John Montagu, the Earl of Sandwich. The Earl was a powerful member of Parliament and married, but openly kept as his consort Fanny Murray.  Murray was the Kim Kardashian of 18th century Britain, though, unlike our modern Kardashian, Murray earned her reputation by being the most celebrated prostitute of her time.  The Earl of Sandwich kept a large, nude portrait of Murray in his apartment.  Moreover:

Murray often appeared as a “nun” — a female guest — at the orgies of the Hellfire Club, a secret society with satanic trappings which Sandwich regularly attended, and it is also likely that she was a member of the “harem” at the Divan Club, an orientalist group founded by Sandwich that was exclusive to noblemen who had visited the Ottoman Empire.

In a world where Fanny Murray was celebrated as an icon of fashion and taste, and a powerful member of Parliament, the Earl of Sandwich, was an open adulterer and an enthusiast of orgies, it was a dubious honor for John Wilkes to be considered particularly debauched.

Until their falling out around 1760, Wilkes was one of the Earl of Sandwich’s close friends.  Like the Earl, Wilkes was a member of the Hellfire Club. And Wilkes, like the Earl, was married, but had a well deserved reputation as a rake.

In a famous exchange between Wilkes and the Earl of Sandwich after their falling out, one that captures their debauchery and wit, the Earl said to Wilkes, “Sir, I do not know whether you will die on the gallows or of the pox.”  By “pox,” the Earl meant syphilis.  Wilkes responded “That depends, my lord, on whether I embrace your lordship’s principles or your mistress.”

The respect that Wilkes earned amongst the colonists because of his ideas showed early on that Americans were less interested in someone’s private life than they were in that person’s intellectual contribution to liberty.

Wilkes & General Warrants

In 1760, after a reign of 33 years, King George II died. His grandson, George III, took the throne and, for the first time since the English Civil War a century earlier, a Tory — John Stuart, Earl of Bute, who had been George III’s surrogate father — became Prime Minister.  In opposition to the newly ascendant Tories, Wilkes began publishing a radical weekly newspaper, The North Briton, which was highly critical of the Tory government’s policies.

Britain was involved in a world war at the time — the Seven Years War, though the North American theater of the war has its own name, the French and Indian War.  Britain smashed France and its allies in that war, though at its conclusion Bute proposed very generous peace terms to France.  In October, 1763, the King gave a speech to Parliament supporting the terms Bute proposed. Wilkes excoriated the speech in issue Number 45 of The North Briton.

George III took royal umbrage. The King authorized general warrants to arrest for seditious libel anyone and everyone involved publishing issue Number 45 and to search anywhere for evidence of the crimes.  Pursuant to this general warrant, Crown officials searched Wilkes’s home and arrested him. This became huge news throughout Britain and the colonies.  The people of Middlesex rioted over his arrest and Wilkes challenged both the search and arrest, based as they were on a general warrant, on the grounds that they were unconstitutional under British law.

The case of Wilkes v. Woods was tried before a jury in the Court of King’s Bench on December 6, 1763.  The Court agreed with Wilkes that general warrants were unconstitutional under British law and Wilkes’s constituents carried Wilkes from the courtroom on their shoulders. So Wilkes had put a thumb in the eye of George III and seemingly decided an issue bedeviling colonists.  Whatever his personal failings, Wilkes had become a hero to the American colonists, just as he was a hero to many of the working class in Britain.

That is not the end of the story, though, either for Writs of Assistance or for John Wilkes.  The Writs of Assistance issue gradually faded in the colonies as no Court would issue a Writ of Assistance after 1763, though that had as much to do with colonial resistance to them as it did with a lack of confidence in their constitutionality.  Interestingly, even today, Writs of Assistance are still considered valid and lawful under British law when it comes to customs officers.

Unlike the Writs, John Wilkes did anything but fade away.  Wilkes had made an enemy of George III, and George III was determined to be rid of Wilkes by any means.  What happened next is detailed in a post at the John Wilkes Club site.  To give a short summation — and to very much highlight the danger of a government with the power to issue general warrants — during their search of Wilkes’s home under the general warrant, the Crown agents found and took from the house a book that had nothing at all to do with the charge of seditious libel.   The book contained a poem Wilkes wrote entitled An Essay On Woman.  It was a parody of Alexander Pope’s An Essay on Man and Wilkes’ parody was described at the time as “the dirtiest poem in the English language.”

The Crown, aided and abetted by Wilkes’ erstwhile friend, the Earl of Sandwich, created a crime by altering the poem to make it satisfy the crime of blasphemy, then surreptitiously publishing the poem as if Wilkes had done so himself – that being a necessary element of the crime of blasphemy in the U.K. of 1763.  The Crown then charged Wilkes with committing blasphemy. Wilkes was expelled from Parliament.  He fled to France and for the next five years was on the run from British authorities.

The truth of what happened eventually became public, although it did not change the outcome.  When Wilkes finally returned to Britain in 1768, he was sentenced to jail for two years.  This led to massive riots in London.  People chanting “No liberty, no King” descended on the prison where Wilkes was being held.  British troops were deployed and opened fire on the rioters, killing seven and wounding fifteen, an incident that came to be known as the St George’s Fields Massacre.  George III was so distraught he considered abdicating during the riot.

Even during Wilkes’s imprisonment,  Wilkes’s constituency in Middlesex reelected him to Parliament.  Parliament reacted by formally expelling Wilkes and seating their own preferred candidate to hold Wilkes’s rightful seat.  But George III finally threw in the towel.  Unable to beat Wilkes, George III and his ministers gave up.  They opted to simply ignore all of Wilkes’s provocations and stop attacking him.  It didn’t make Wilkes go away, but it took away some of his press, and thus lessened Wilkes’s sting.

Wilkes, in 1770, was elected Sheriff of London and spent the next twenty years at the heart of British politics.  He was soon reelected to Parliament, though this time from London. Wilkes became a vociferous champion of the colonists during the American Revolution.

General Warrants & The Fourth Amendment

When it came time to draft the Bill of Rights, the lessons of both Writs of Assistance and the treatment of John Wilkes were well known. General warrants were a power our government should never have.  And thus the Fourth Amendment:

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.

And lest you think this only a bit of old, if albeit colorful history, the next time you hear someone complain about the FBI executing a FISA warrant to spy on Carter Page on the basis of the unverified allegations in the Steele Dossier, you might want to remember the name of John Wilkes.

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Part 1: What Was It like to Be Alive in Colonial America in 1775, on the Eve of the Revolutionary War?

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Statue of John Wilkes on Fetter Lane in the City of London by ell brown on 2009-10-17 11:04:26