WILKES CASES 19 Howell's State Trials (1763–1768)

Counting derivative trials, the Wilkes Cases embraced at least forty cases from 1763 to 1769; all emanated ultimately from a single general warrant issued by the British secretaries of state on April 26, 1763, against The North Briton, No. 45, a periodical trenchantly critical of the Grenville administration. Numerous categories of the general warrant, which allowed its bearer to arrest, search, and seize at his discretion, had operated in England for centuries. The warrant of April 26, however, was of an atypical variety, based on custom rather than statute, which the government used against dissident publications; it resulted in the search of at least five houses, the arrest of forty-nine persons, and the seizure of thousands of manuscripts and books.

Although hundreds of such warrants had issued since the Restoration, the latest crop of victims included John Wilkes, a powerful member of Parliament and principal author of The North Briton. When Wilkes sued every official connected with the warrant, many of the others arrested promptly did the same.

The trials unfolded in distinct series. In Huckle v. Money, the first trial on July 6, 1763, charles pratt, the Chief Justice of the Court of Common Pleas, criticized the North Briton warrant because it specified no person, had been issued without a formal complaint under oath, and thus lacked probable cause. When this case reached the full Common Pleas, Pratt extended his attack to the general search feature of the warrant, holding that it, as well as its companion power of general arrest, violated magna carta.

The outcome of the North Briton trials incited suits by earlier victims of secretarial warrants. In the most famous of these trials, Entick v. Carrington (1765), which accrued from a general warrant against The Monitor, the emphasis shifted to the powers of general, confiscatory seizure in such warrants. Pratt, now ennobled as Lord Camden, condemned the use of seized personal papers against their owner as self-incriminatory. Moreover, Camden continued, because private property was inherently sacred, any invasion of it without express legal authority was a trespass even if it merely involved touching the soil or grass. He conceded that the inspection of private papers was not itself a legal trespass, but he insisted that the disclosure of the personal secrets they contained greatly magnified the harm from the physical trespass of their seizure.

Although Pratt in Wilkes v. Wood (1763) had condemned even general warrants authorized by statute, william murray (Lord Mansfield), in a final appeal of Huckle v. Money, upheld statutory warrants and denounced only those not based on parliamentary enactment. When Pratt shifted to the same grounds in Entick, the effect was to confine the assault on general warrants to the variant based on custom, and to preserve a greater number that derived from statute. In 1766 a resolution against general warrants did emerge from the House of Commons, but an effort to transform it into binding, comprehensive legislation failed.

William J. Cuddihy
(1986)

Bibliography

Holdsworth, Sir William 1938 A History of English Law. 7th ed. 15 vols. Vol. 10:99–100, 658–672. London: Methuen.

Nobbe, George 1939 The North Briton. New York: Columbia University Press.