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Sunday, December 20, 2015

Miscellaneous Americana for the New Year

John Wilkes [1727-1797]. You may have heard of “that devil [John] Wilkes.” His publication—The North Briton—made him a hero in the eyes of American patriots and Whigs everywhere, and a thorn in the side of the British ministers who opposed American petitions in support of traditional English rights. He was the primary defendant in English litigation which established the illegality of general warrants.

He was expelled from the Commons in 1764, and also expelled 3 times in 1769. After the last expulsion in 1769, he ran for election yet again, and although he had more votes than his opponent, the Commons seated his opponent. He was elected again in 1774 and took his seat. Arguably, Wilkes’ taking his seat in 1774 established the principle that each member of the House of Commons is chosen by the voters, and that the voters’ choice cannot be second-guessed, rejected, or overturned merely because a majority of the House finds a particular member’s political principles and morals objectionable.

Charles Wilkes [1798-1877]. This Wilkes was an American, an explorer, and a naval officer. On November 8, 1861, after the Civil War had begun, Wilkes was captain of the USS San Jacinto. It was Wilkes who stopped the RMS Trent, a British mail packet, and it was Wilkes who searched for and seized Mason and Slidell, the two Confederate commissioners on their way to Europe in search of diplomatic recognition for the Confederacy. Wilkes’ actions were probably a violation of international law in regard to the shipping rights of neutrals during war time. Wilkes actions were disavowed by (One war at a time) Lincoln, who subsequently released the Confederate commissioners if only to avoid a permanent break in relations between the US and UK. Indeed, Wilkes’ actions might have led to war between the US and UK. Still, these events made Charles Wilkes a hero in the eyes of loyal Americans.

The two Wilkes were related. John Wilkes’ elder brother—Israel Wilkes—had immigrated to the United States, and Charles Wilkes was the elder Wilkes’ grandson. That’s a different way to think about the Anglosphere.

General George Cadwalader (also spelled Cadwallader) [1806-1879] served in the US Army during the Mexican War and during the (American) Civil War. He was in overall command of Fort McHenry, in Baltimore, in 1861. As a result, Cadwalader was the named defendant in Ex parte Merryman (1861), which tested the legality of Lincoln’s order to suspend habeas corpus. See generally Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, Military Law Review (forthcoming circa Summer 2016) []Cadwalader, like Adams and Powell, is an ancient Welsh name. In myth, Cadwalader (spelled Cadwaladr) was the last pre-Saxon King of Britain.  

It is all too easy to speak of the American colonies as settled by Englishmen. But not all who came to the New World, of those who owed allegiance to the Crown, came from England. Some were Manx. A few came from the Channel Islands, where the Queen is still styled Duke (not Duchess) of Normandy! A good many were Welsh, Scottish, and Irish, particularly from Ulster. It is even more difficult to remember that settlers from these different places brought with them different parliamentary and legal traditions, and also different usage in regard to spoken and written English. See, e.g., Nora Rotter Tillman; Seth Barrett Tillman, A Fragment on Shall and May, 50 American Journal of Legal History 453 (2010); see also, e.g., James E. Pfander & Daniel D. Birk, Article III and the Scottish Enlightenment, 124 Harvard Law Review 1613 (2011) [].


PS: Here is my prior post: Seth Barrett Tillman, The Guardian and San Bernardino, The New Reform Club (Dec. 3, 2015, 4:53 PM), 

PPS: Welcome Instapundit and Chicago Boyz readers. We have a lot here at The New Reform Club. So please take a look.

Twitter:  ( @SethBTillman )

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