A humiliating comparison of us to old Britain

Most American believe that while we may have lost some freedoms, our system provides better guarantees of liberty and protection from tyrannical government. Only our ignorance of history makes this delusion possible. A simple episode from British history shatters that illusion. It can inspire us to do better.

“But a Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.”
— Letter by John Adams to his wife, Abigail (17 July 1775).

Don't Tread on Me

Entick v Carrington: 250 Years of the Rule of Law
Available at Amazon.

Excerpt from “Resistance to Torpor

Book review by Stephen Sedley.
London Review of Books, 18 July 2016.

Review of Entick v Carrington: 250 Years of the Rule of Law.
Edited by Adam Tomkins and Pual Scott (1915).

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 {text here}.

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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Imagine a small newspaper suing the government in America today. The government would string it out so that the legal fees would bankrupt the newspaper or force it to drop the lawsuit. Even if taken to court, juries and especially judges routinely defer to even outrageous government actions. And government officials have almost complete immunity for official acts.

None of this was true of Britain 255 years ago. Why is our America so much weaker? They had a people who had fewer rights than we do, but were jealous and prepared to fight for them. That was true of America in the past, and can be again. The choice is ours. We make it every day, and will continue to do so until we can’t.

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A great book reminding us about the secret power source of the Constitution.

A Machine That Would Go of Itself: The Constitution in American Culture
Available at Amazon.

A Machine That Would Go of Itself: The Constitution in American Culture by Michael Kammen (the late professor of history at Cornell).

“The Constitution occupies an anomalous role in American cultural history. For almost two centuries it has been swathed in pride yet obscured by indifference: a fulsome rhetoric of reverence more than offset by the reality of ignorance.”

From the publisher…

“Pulitzer Prize-winning historian Michael Kammen explores the U.S. Constitution’s place in the public consciousness and its role as a symbol in American life, from ratification in 1788 to our own time. As he examines what the Constitution has meant to the American people (perceptions and misperceptions, uses and abuses, knowledge and ignorance), Kammen shows that although there are recurrent declarations of reverence most of us neither know nor fully understand our Constitution.

“How did this gap between ideal and reality come about? To explain it, Kammen examines the complex and contradictory feelings about the Constitution that emerged during its preparation and that have been with us ever since.

“He begins with our confusion as to the kind of Union we created, especially with regard to how much sovereignty the states actually surrendered to the central government. This confusion is the source of the constitutional crisis that led to the Civil War and its aftermath. Kammen also describes and analyzes changing perceptions of the differences and similarities between the British and American constitutions; turn-of-the-century debates about states’ rights versus national authority; and disagreements about how easy or difficult it ought to be to amend the Constitution.

“Moving into the twentieth century, he notes the development of a ‘cult of the Constitution’ following World War I, and the conflict over policy issues that persisted despite a shared commitment to the Constitution.”

6 thoughts on “A humiliating comparison of us to old Britain

  1. Thanks for that history lesson but Old Britain is long gone. Your visualization of a similar suit today in USA is accurate. We can see it occurring now.

    Compared to present UK we are now way ahead with our 1st and 2nd Ammendments. I do not believe the B.S. from Reporters without Borders.

    1. Longtrail,

      “but Old Britain is long gone.”

      That does not matter. The past can teach us. The past can inspire us. That is every generation’s ultimate bequest to the future.

  2. Outstanding historical anecdote. But I am with Longtrail, I doubt that the same would hold true today in Britain. Indeed many of Dickens’ stories would suggest that quick legal procedures were gone by the 19th Century in Britain. All the same you have pinpointed the practical realities under-girding our First and Fourth Amendments.

    1. Bernie,

      “I doubt that the same would hold true today in Britain.”

      As with all posts about political reform, commenters miss the point. It {{Edit: commenters’ reactions} is a demo of why we don’t have meaningful reform in America.

      The past can teach us. The past can inspire us. That is every generation’s ultimate bequest to the future. We just refuse to use it.

  3. Larry:
    Say more about how the Wilkes’ episode is a “demo of why we don’t have meaningful reform in America”. Or are you saying our failure to understand and take lessons of the past is the reason why we fail to push for reform.

    Do you see, for example, the episode as relevant to the search of Trump’s lawyer’s offices and papers?

    1. Bernie,

      Thanks for catching this. I didn’t state this clearly: “commenters miss the point. It’s a demo of why we don’t have meaningful reform in America.” I meant that the reaction of commenters shows why political reform has not occured in America.

      “Or are you saying our failure to understand and take lessons of the past is the reason why we fail to push for reform.”

      More directly: our disinterest in learning from the past shows why we don’t work for reform. Commenters review the past as if they’re reviewing a TV show.

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