[Volume 5, Page 233]
Entick v. Carrington95 Eng. Rep. 807 K.B. 1765
Lord Chief Justice.--I shall not give any opinion at present, because this case, which is of the utmost consequence to the public, is to be argued again; I shall only just mention a matter which has slipped the sagacity of the counsel on both sides, that it may be taken notice of upon the next argument. Suppose a warrant which is against law be granted, such as no justice of peace, or other magistrate high or low whomsoever, has power to issue, whether that magistrate or justice who grants such warrant, or the officer who executes it, are within the stat. 24 Geo. 2, c. 44? To put one case (among an hundred that might happen); suppose a justice of peace issues a warrant to search a house for stolen goods, and directs it to four of his servants, who search and find no stolen goods, but seize all the books and papers of the owners of the house, whether in such a case would the justice of peace, his officers or servants, be within the Stat. 24 Geo. 2? I desire that every point of this case may be argued to the bottom; for I shall think myself bound, when I come to give judgment, to give my opinion upon every point in the case.
. . . . .
Curia.--The defendants make two defences; first, that they are within the stat. 24 Geo. 2, c. 44; 2dly, that such warrants have frequently been granted by Secretaries of State ever since the Revolution, and have never been controverted, and that they are legal; upon both which defences the defendants rely.
A Secretary of State, who is a Privy Counsellor, if he be a conservator of the peace, whatever power he has to commit is by the common law: if he be considered only as a Privy Counsellor, he is the only one at the board who has exercised this authority of late years; if as a conservator, he never binds to the peace; no other conservator ever did that we can find: he has no power to administer an oath, or take bail; but yet it must be admitted that he is in the full exercise of this power to commit, for treason and seditious libels against the Government, whatever was the original source of that power; as appears from the cases of The Queen and Derby, The King and Earbury, and Kendale and Roe's case.
We must know what a Secretary of State is, before we can tell whether he is within the stat. 24 Geo. 2, c. 44. He is the keeper of the King's signet wherewith the King's private letters are signed. 2 Inst. 556. Coke upon Articuli Super Chartas, 28 Ed. 1. Lord Coke's silence is a strong presumption that no such power as he now exercises was in him at that time; formerly he was not a Privy Counsellor, or considered as a magistrate; he began to be significant about the time of the Revolution, and grew great when the princes of Europe sent ambassadors hither; it seems inconsistent that a Secretary of State should have power to commit, and no power to administer an oath, or take bail; who can commit and not have power to examine? the House of Commons indeed commit without oath, but that is nothing to the present case; there is no account in our law-books of Secretaries of State, except in the few cases mentioned; he is not to be found among the old conservators; in Lambert, Crompton, Fitzherbert, &c. &c. nor is a Privy Counsellor to be found among our old books till Kendall and Roe's case, and 1 Leon. 70, 71, 29 Eliz. is the first case that takes notice of a commitment by a Secretary of State; but in 2 Leon. 175 the Judges knew no such committing magistrate as the Secretary of State. It appears by the Petitition of Right, that the King and Council claimed a power to commit; if the Secretary of State had claimed any such power, then certainly the Petition of Right would have taken notice of it; but from its silence on that head we may fairly conclude he neither claimed nor had any such power; the Stat. 16 Car. 1, for Regulating the Privy Council, and taking away the Court of Star-Chamber, binds the King not to commit, and in such case gives a habeas corpus; it is strange that House of Commons should take no notice of the Secretary of State, if he then had claimed power to commit. This power of a Secretary of State to commit was derivative from the commitment per mandatum Regis: Ephemeris Parliamentaria. Coke says in his speech to the House, "If I do my duty to the King, I must commit without shewing the cause;" 1 Leon. 70, 71, shews that a commitment by a single Privy Counsellor was not warranted. By the Licensing Statute of 13 & 14 Car. 2, cap. 33, sec. 15, licence is given to a messenger under a warrant of the Secretary of State to search for books unlicensed, and if they find any against the religion of the Church of England, to bring them before the Secretary of State; the warrant in that case expressed that it was by the King's command. See Stamford's comment on the mandate of the King, and Lambert, cap. Bailment. All the Judges temp. Eliz. held that in a warrant or commitment by one Privy Counsellor he must shew it was by the mandate of the King in Council. See And. 297, the opinion of all the Judges; they remonstrated to the King that no subject ought to be committed by a Privy Counsellor against the law of the realm. Before the 3 Car. 1 all the Privy Counsellors exercised this power to commit; from that aera they disused this power, but then they prescribed still to commit per mandatum Regis. Journal of the House of Commons 195. 16 Car. 1. Coke, Selden, &c. argued that the King's power to commit, meant that he had such power by his Courts of Justice. In the case of The Seven Bishops all the Court and King's Council admit, that supposing the warrant had been signed out of the Council, that it would have been bad, but the Court presumed it to be signed at the board; Pollexfen in his argument says, we do not deny but the Council board have power to commit, but not out of Council; this is a very strong authority; the whole body of the law seem not to know that Privy Counsellors out of Council had any power to commit, if there had been any such power they could not have been ignorant of it; and this power was only in cases of high treason, they never claimed it in any other case. It was argued that [Volume 5, Page 234] if a Secretary of State hath power to commit in high treason, he hath it in cases of lessor crimes: but this we deny, for if it appears that he hath power to commit in one case only, how can we then without authority say he has that power in other cases? he is not a conservator of the peace; Justice Rokeby only says he is in the nature of a conservator of the peace: we are now bound by the cases of The Queen and Derby, and The King and Earbury.
The Secretary of State is no conservator nor a justice of the peace, quasi secretary, within the words or equity of the Stat. 24 Geo. 2, admitting him (for arguments sake) to be a conservator, the preamble of the statute shews why it was made, and for what purpose; the only grantor of a warrant therein mentioned, is a justice of the peace; justice of peace and conservator are not convertible terms; the cases of construction upon old statutes, in regard to the warden of the Fleet, the Bishop of Norwich, &c. are not to be applied to cases upon modern statutes. The best way to construe modern statutes is to follow the words thereof; let us compare a justice of peace and a conservator; the justice is liable to actions, as the statute takes notice, it is applicable to him who acts by warrant directed to constables; a conservator is not intrusted with the execution of laws, which by this Act is meant statutes, which gives justices jurisdiction; a conservator is not liable to actions; he never acts: he is almost forgotten; there never was an action against a conservator of the peace as such; he is antiquated, and could never be thought of when this Act was made; and ad ea quae frequenter accidunt jura adaptantur. There is no act of a constable or tithingman as conservator taken notice of in the statute; will the Secretary of State be ranked with the highest or lowest of these conservators? the Statute of Jac. 1, for officers acting by authority to plead the general issue, and give the special matter in evidence, when considered with this Statute of 24 Geo. 2, the latter seems to be a second part of the Act of Jac. 1, and we are all clearly of opinion that neither the Secretary of State, nor the messengers, are within the Stat. 24 Geo. 2, but if the messengers had been within it, as they did not take a constable with them according to the warrant, that alone would have been fatal to them, nor did they pursue the warrant in the execution thereof, when they carried the plaintiff and his books, &c. before Lovel Stanhope, and not before Lord Halifax; that was wrong, because a Secretary of State cannot delegate his power, but ought to act in this part of his office personally.
The defendants having failed in their defence under the Statute 24 Geo. 2; we shall now consider the special justification, whether it can be supported in law, and this depends upon the jurisdiction of the Secretary of State; for if he has no jurisdiction to grant a warrant to break open doors, locks, boxes, and to seize a man and all his books, &c. in the first instance upon an information of his being guilty of publishing a libel, the warrant will not justify the defendants: it was resolved by B. R. in the case of Shergold v. Holloway, that a justice's warrant expressly to arrest the party will not justify the officer, there being no jurisdiction. 2 Stran. 1002. The warrant in our case was an execution in the first instance, without any previous summons, examination, hearing the plaintiff, or proof that he was the author of the supposed libels; a power claimed by no other magistrate whatever (Scroggs C.J. always excepted); it was left to the discretion of these defendants to execute the warrant in the absence or presence of the plaintiff, when he might have no witness present to see what they did; for they were to seize all papers, bank bills, or any other valuable papers they might take away if they were so disposed; there might be nobody to detect them. If this be lawful, both Houses of Parliament are involved in it, for they have both ruled, that privilege doth not extend to this case. In the case of Wilkes, a member of the Commons House, all his books and papers were seized and taken away; we were told by one of these messengers that he was obliged by his oath to sweep away all papers whatsoever; if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the Revolution, and if that would have justified them they have not averred it in their plea, so it could not be put, nor was in issue at the trial; we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have. This case was compared to that of stolen goods; Lord Coke denied the lawfulness of granting warrants to search for stolen goods, 4 Inst. 176, 177, though now it prevails to be law; but in that case the justice and the informer must proceed with great caution; there must be an oath that the party has had his goods stolen, and his strong reason to believe they are concealed in such a place; but if the goods are not found there, he is a trespasser; the officer in that case is a witness; there are none in this case, no inventory taken; if it had been legal many guards of property would have attended it. We shall now consider the usage of these warrants since the Revolution; if it began then, it is too modern to be law; the common law did not begin with the Revolution; the ancient constitution which had been almost overthrown and destroyed, was then repaired and revived; the Revolution added a new buttress to the ancient venerable edifice: the K. B. lately said that no objection had ever been taken to general warrants, they have passed sub silentio: this is the first instance of an attempt to prove a modern practice of a private office to make and execute warrants to enter a man's house, search for and take away all his books and papers in the first instance, to be law, which is not to be found in our books. It must have been the guilt or poverty of those upon whom such warrants have been executed, that deterred or hindered them from contending against the power of a Secretary of State and the Solicitor of the Treasury, or such warrants could never have passed for lawful till this time. We are inclined to think the present warrant took its first rise from the Licensing Act, 13 & 14 Car. 2, c. 33, and are all of opinion that it cannot be justified by law, notwithstanding the resolution of the Judges in the time of Cha. 2, and Jac. 2, [Volume 5, Page 235] that such search warrants are lawful. State Trials, vol. 3, 58, the trial of Carr for a libel. There is no authority but of the Judges of that time that a house may be searched for a libel, but the twelve Judges cannot make law; and if a man is punishable for having a libel in his private custody, as many cases say he is, half the kingdom would be guilty in the case of a favourable libel, if libels may be searched for and seized by whomsoever and wheresoever the Secretary of State thinks fit. It is said it is better for the Government and the public to seize the libel before it is published; if the Legislature be of that opinion they will make it lawful. Sir Samuel Astry was committed to the Tower, for asserting there was a law of State distinct from the common law. The law never forces evidence from the party in whose power it is; when an adversary has got your deeds, there is no lawful way of getting them again but by an action. 2 Stran. 1210, The King and Cornelius. The King and Dr. Purnell, Hil. 22 Geo. B. R. Our law is wise and merciful, and supposes every man accused to be innocent before he is tried by his peers: upon the whole, we are all of opinion that this warrant is wholly illegal and void. One word more for ourselves; we are no advocates for libels, all Governments must set their faces against them, and whenever they come before us and a jury we shall set our faces against them; and if juries do not prevent them they may prove fatal to liberty, destroy Government and introduce anarchy; but tyranny is better than anarchy, and the worst Government better than none at all.
Judgment for the plaintiff.
© 1987 by The University of Chicago