‘That Devil Wilkes’

Book Excerpt: Sen. Mike Lee’s ‘Our Lost Constitution’

Mike Lee
Mike Lee / Penguin Random House LLC
April 26, 2015

At the time of our nation’s founding, few men were more admired than the English dissident whom King George III called "that devil Wilkes." A sometime member of Parliament and a sometime political prisoner, John Wilkes argued that the King’s subjects had rights, and the King’s powers had limits. He spoke out against the king’s tyrannical tendencies before there was a Stamp Act, a Boston Tea Party, or a Declaration of Independence. In colonial America, Wilkes’s name was synonymous with liberty. The story of how his liberty was won inspired one of the most important parts of our Constitution—the Fourth Amendment.

On the last afternoon of April in 1763— Easter Saturday— John Wilkes sat in the home of Lord Halifax, the king’s secretary of state for Britain’s Southern Department. Halifax was polite to his fellow member of Parliament, but this was no social call. The secretary of state was a prosecutor, and John Wilkes was under arrest.

Wilkes’s latest edition of the North Briton— its forty-fifth issue— had excoriated the king’s annual address to Parliament, and al­though it purported to lay blame only with the ministers who wrote the speech, it looked to most readers like a direct rebuke of the king himself.

On the king’s command, Lord Hali­fax issued a general warrant authorizing a "strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper entitled, the North Briton Number 45." The warrant called for the king’s henchmen to seize "any of them" and their papers.

As soon as Wilkes was shown this warrant, he called it useless. It "named nobody," he said in outrage to Lord Halifax. Warrants, if legal, gave immunity to law enforcement officers against suits for false arrest and trespass on private property, but Wilkes believed they were only entitled to confer immunity if they named a specific suspect and were supported by evidence against him. In contrast, a "general warrant" named the crime but not the suspects. Under the auspices of a general warrant, anyone could be dragged from his bed in the dead of night at the whim of the king and held by armed guards without probable cause or even suspicion of having commit­ted a crime.

That was precisely what had happened under the authority of the general warrant presented to Wilkes. Even though Halifax was looking for only three people— the North Briton Number 45 had one author, one printer, and one publisher— Wilkes was among the last of forty-nine people arrested under the supposed authority of this single warrant. Many of them— printers and printers’ apprentices— had nothing to do with the North Briton, and the arrest of these in­nocents only furthered Wilkes’s conviction that the warrant was illegal and invalid.

Halifax questioned Wilkes for a short period of time, but Wilkes— aside from airing his outrage over the general warrant— was unresponsive. He spent that night— and the next five— in the Tower of London.

By Friday, when Wilkes was taken from the Tower of London to Westminster Hall for his habeas corpus hearing, countless com­moners ran alongside his carriage shouting support. They then packed the balcony of the courtroom until they overflowed into the streets, waiting to hear word of Wilkes’s argument and of the judge’s decision.

Wilkes did not disappoint. Standing before the dais of Lord Chief Justice Pratt, who wore a black robe and a long white wig, the dissi­dent declared that more was at stake than his own freedom. "The lib­erty of all peers and gentlemen— and, what touches me more sensibly, that of all the middling and inferior set of people, who stand most in need of protection— is, in my case, this day to be finally decided upon." The question was "whether English liberty be a reality or a shadow."

With the audience in the balcony hanging on his every word, Wilkes said he had suffered "imprisonment, the effect of premedi­tated malice." He had received word that his house had been "ran­sacked and plundered" by the king’s men, "my most private and secret concerns divulged." This was "tyranny," which he trusted would "be finally extirpated" by the court today, so that "henceforth every innocent man, however poor and unsupported, may hope to sleep in peace and security in his own house, unviolated by the king’s messengers, and the arbitrary mandates of an overbearing secretary of state."

No one doubted that Wilkes’s words inspired his acolytes in the balcony, but when he finished, their effect on the judge whose deci­sion mattered remained unclear. Lord Chief Justice Pratt was not known as an enemy of liberty, but was he prepared to side with Wilkes and defy his king?

In the end, Pratt opted to exploit something of a technicality within the law. He ruled that "parliamentary privilege" required Wilkes’s release from prison. It was hardly a decision that provided protection for the "innocent man" who hoped "to sleep in peace and security in his own house." But for the moment, Wilkes’s admirers saw plenty to celebrate. Their hero was free.

Wilkes’s six days in prison had transformed a protester into a folk legend. But his greatest triumphs— and their effect on the Consti­tution of an as-yet-unimagined nation— were still to come.

John Wilkes returned home from prison on the evening of May 6, 1763, to a house raided by Halifax’s henchmen. Locks on doors and desk drawers had been broken off. Hinges had been torn down. Pa­pers had been ripped from inside desks and flung with books across the floor. Anything related to the North Briton was gone, as was Wilkes’s pocketbook. Because Halifax’s general warrant included no specifics about who could be seized or what papers could be searched, it had in effect authorized a fishing expedition inside Wilkes’s home— and inside the home and office of any of the other forty-eight men arrested without probable cause.

Wilkes was exhausted from a day that had begun in prison, pro­ceeded to court, and culminated with celebrations in the streets, but his energy was far from spent. He immediately wrote to Lord Hal­ifax and another secretary of state noting that his house had been "robbed" and insisting that "the stolen goods" in their possession be returned to him "forthwith." When the executive officials replied the next day that "evidence" would be held for "prosecution," Wilkes told them he feared "neither your prosecution nor your persecution." He promised to continue to "assert the security of my own house, the liberty of my person, and every right of the people, not so much for my own sake, as for the sake of every one of my English fellow subjects."

A week later, Wilkes filed a lawsuit against Halifax and three other officials. The action alleged that the government officials had illegally trespassed in his home, violated his privacy, and damaged his property. Its outcome would depend on the legality of the gen­eral warrant that purported to authorize each of those alleged torts.

Seven months later, on December 6, Wilkes stood once again before Lord Chief Justice Pratt and the high dais in Westminster Hall. Once more the gallery was packed with throngs of adoring follow­ers. But this time Wilkes was not defending himself; he was accus­ing His Majesty’s government of wrongdoing and demanding thousands of pounds in damages.

When the moment of decision came, Wilkes and his supporters in the balcony fixed their eyes on the judge with rapt attention. "If such a power is truly vested in a secretary of state, and he can delegate this power, it cer­tainly may affect . . . every man in this kingdom and is totally sub­versive of the liberty of the subject."With those words and the ruling that followed, Lord Pratt had not only invalidated the warrant in Wilkes’s case; he had outlawed all general warrants in all future cases.

General warrants that named a crime but no criminals had been the last remnant of an era before the Magna Carta when "di­vinely inspired" monarchs wielded absolute power over English sub­jects.They allowed the king to invade any home, seize any person, and search any papers— all without probable cause or anything ap­proaching due process. But now, after Wilkes’s victory spelled their demise, England truly was a constitutional monarchy. "Every inno­cent man" could, in Wilkes’s words, "sleep in peace and security in his own house, unviolated by the king’s messengers, and the arbi­trary mandates of an overbearing secretary of state.

When James Madison drafted the Bill of Rights and introduced it in the First Congress, no case was more famous in America than John Wilkes’s trespass suit against Lord Halifax and his messengers. Its text was as clear as the lessons from John Wilkes’s story: broad warrants purporting to give government agents discretion to rummage through the homes and private papers of law-abiding Americans—i.e., general warrants—are incompatible with liberty. And under the Fourth Amendment, they are unconstitutional.

Reprinted from Our Lost Constitution by Senator Mike Lee with permission of Sentinel, an imprint of Penguin Publishing Group, a division of Penguin Random House LLC. Copyright (c) Mike Lee, 2015.

Published under: Mike Lee