Entick v. Carrington

The King's messengers broke into a writer's house on a Secretary of State's warrant to seize him and all his books and papers. The jury found the facts and left the law to the Court. The Court held the warrant wholly illegal and void. The judgment has no numbered paragraphs and is delivered by the Court as a whole.

Quick Revision

Read the full judgment: BAILII

Parties

John Entick (Clerk) — plaintiff. He was said in the warrant to be the author of the weekly paper The Monitor, or British Freeholder.

Nathan Carrington — defendant, one of four King's messengers in ordinary.

James Watson — defendant, King's messenger in ordinary.

Thomas Ardran — defendant, King's messenger in ordinary.

Robert Blackmore — defendant, King's messenger in ordinary.

Earl of Halifax — not a party. He was a Lord of the Privy Council and a principal Secretary of State. He issued the warrant.

Lovel Stanhope — not a party. He was the law-clerk to the Secretaries of State and assistant to the Earl in examining seized papers.

Procedural History

1. Entick sued in trespass (unlawful entry on another's land). He alleged entry with force and arms and a four-hours' stay. He alleged breaking of doors, locks and boxes and reading of his private papers. He said they took away 100 printed charts and 100 printed pamphlets. He claimed 2000l.
2. The defendants pleaded not guilty to the whole declaration. That produced the first issue.
3. Their second plea was a justification (a plea that the acts were lawful). It said they acted under the Earl of Halifax's warrant of 6 November 1762 and took the plaintiff and his papers before the Earl.
4. Entick replied that the defendants entered in their own wrong, without the cause they pleaded. That produced the second issue.
5. A third plea was like the second. It said the plaintiff and his papers were carried before Lovel Stanhope, the Earl's assistant. Entick gave the same reply, and a third issue was joined.
6. The cause was tried in Westminster-Hall before the Lord Chief Justice. The jury found a special verdict (the jury finds the facts and asks the Court to decide the law).
7. The special verdict was argued twice at the Bar. In Easter term, Serjeant Leigh argued for the plaintiff and Burland, one of the King's Serjeants, for the defendants. In Michaelmas term, Serjeant Glynn argued for the plaintiff and Nares, one of the King's Serjeants, for the defendants.
8. After the first argument the Lord Chief Justice gave no opinion. He asked counsel to address one further point at the next argument (see Arguments).
9. After time to consider, the whole Court gave judgment for the plaintiff in the Michaelmas term.

Facts

The facts are taken from the special verdict. The jury found the following.

1. The Earl of Halifax was at all relevant times one of the Lords of the King's Privy Council and one of his principal Secretaries of State.
2. On 11 October 1762, at St James's, Westminster, Jonathan Scott, a London bookseller and publisher, gave a written information (a statement of accusation) against John Entick and others. He gave it before Edward Weston, an assistant to the Earl and a justice of the peace for the City and liberty of Westminster.
3. Scott's information said the following:
   • In 1755 he proposed setting up a paper and mentioned it to Dr Shebbeare.
   • Arthur Beardmore, an attorney, then asked him to tell Dr Shebbeare that Beardmore and friends meant to set up a paper in the city.
   • Shebbeare, Beardmore, Scott and Entick met at the Horn Tavern. They agreed to set up the paper as The Monitor. Dr Shebbeare and Entick were each to have 200l. a year.
   • Before the papers appeared, Beardmore sent the papers Shebbeare had supplied back to Scott. Shebbeare then had 50l. and was left out. The money continued to Beardmore and Entick by what Scott supposed was subscription.
   • Shebbeare, Beardmore and Entick told Scott that the late Alderman Beckford countenanced (supported) the paper. They agreed the paper's profits, after all charges, would go to Scott.
   • In the paper of 22 May, called Sejanus, Scott took the character Sejanus to mean Lord Bute. The original manuscript was in the handwriting of David Meredith, Beardmore's clerk.
   • Scott had received the manuscript for several years from the same hands. He believed they continued to write it.
4. On 6 November 1762 the information was shown to the Earl. He issued a warrant to the defendants, who were then King's messengers duly sworn to that office.
5. The warrant authorised and required the defendants, taking a constable to their assistance, to make strict and diligent search for John Entick. It described him as the author, or one concerned in the writing, of several weekly very seditious papers, The Monitor, or British Freeholder, Nos. 357, 358, 360, 373, 378, 379 and 380. The papers were printed for J. Wilson and J. Fell in Paternoster-Row and were said to contain gross and scandalous reflections on the King's Government and both Houses of Parliament.
6. Having found him, the defendants were to seize and apprehend him and bring him, together with his books and papers, in safe custody before the Earl to be examined and dealt with according to law.
7. The warrant called on mayors, sheriffs, justices of the peace, constables and other officers and subjects to aid the defendants. It was dated 6 November 1762 at St James's, in the third year of the King's reign, and was addressed to the four messengers.
8. On 11 November 1762 at 11 o'clock in the day-time the defendants entered Entick's house without taking any constable. The outer door was open and Entick was inside.
9. They found and apprehended him. They searched several rooms, one bureau, one writing-desk and several drawers. They seized some of his books and papers and read others that they chose to read.
10. They necessarily stayed four hours and disturbed Entick in his house. They then took him and the seized books and papers away.
11. They at once gave notice at the Secretary of State's office in Westminster to Lovel Stanhope, and at his instance delivered the books and papers to him.
12. Stanhope was assistant to the Earl in examining persons, books and papers seized under Secretaries of State's warrants. He was also a justice of the peace for Westminster and Middlesex.
13. On 13 April in the first year of the King, the King granted Stanhope the office of law-clerk to the Secretaries of State by letters patent under the Great Seal. The patent appointed him to take the depositions of persons whom it might be necessary to examine on affairs concerning the public. Stanhope had held that office ever since.
14. From the time of the Revolution to the time of the judgment, Secretaries of State had frequently granted warrants like this one. The messengers in ordinary had executed them.
15. Each defendant took the usual oath on appointment, to be a true servant to the King in the place of a messenger in ordinary.
16. Entick never demanded, by himself, his attorney or agent, a perusal and copy of the warrant, in writing left at the defendants' usual place of abode.
17. Entick did not bring his action within six calendar months of the acts.
18. On the last issue, the second special justification, the jury found for the plaintiff. The defendants had in their own wrong broken and entered and done the trespass as the replication alleged.
19. On the first issue the jury found the defendants not guilty of everything except the following:
    • the breaking and entering of the dwelling-house;
    • continuing there four hours and disturbing the plaintiff;
    • searching several rooms, one bureau, one writing-desk and several drawers;
    • reading over and examining several of his papers;
    • seizing and carrying away some of his books and papers.
20. The jury said it did not know whether the defendants were guilty of those acts or whether Entick could maintain his action. It asked the Court's advice.
21. If the Court held the defendants guilty, the jury assessed damages at 300l. and costs at 40s. If not, the jury found the defendants not guilty of the trespass.

Issues Raised

The judgment does not number its issues. The Court's own opening frames two defences, and the Lord Chief Justice raised one further point.

1. Are the defendants, as officers acting under a Secretary of State's warrant, within the protection of 24 Geo. 2, c. 44, which requires a demand for a copy of the warrant and suit within six months?
2. Could the Secretary of State lawfully issue a warrant to break open doors, locks and boxes and to seize a man and all his books and papers in the first instance, on an information that he published a libel (a published defamatory statement)?
3. Does a practice of granting such warrants since the Revolution make them lawful?
4. If a warrant is one that no magistrate has power to issue, are the magistrate and the officer who executes it still within 24 Geo. 2, c. 44?

Arguments Contended

The arguments are recorded in the order they were made across the two arguments at the Bar.

For the plaintiff (Entick): first argument

1. The defendants relied on two defences. The first was that the Secretary of State, as justice or conservator of the peace (an old peace-keeping office), and the messengers under his warrant, were within 24 Geo. 2, c. 44. The second was that the warrant was legal.
2. The verdict shows the Earl of Halifax acted as Secretary of State, not merely as a justice of the peace. He is therefore outside the statute.
3. The statute names only justices, constables and other officers. If it meant a Secretary of State, a conservator of the peace and a messenger in ordinary, it would have named them.
4. No law book ranks a Secretary of State among conservators. Lambert, Coke, Hawkins and Lord Hale do not mention it, and until recent days he was a mere clerk. A conservator had no more power than a constable has now. At the time of the statute, justices, constables, headboroughs, borsholders and tithingmen were all well known.
5. A messenger is only a porter. Lord Halifax's footmen might as well be officers within the statute.
6. The defendants did not take a constable. This disobedience takes them outside the statute and disables any plea of justification. Their office is one of profit, unlike the burdensome office of constable or tithingman, who must act in person and cannot substitute another, though he may call persons to assist (1 Hale's P.C. 581). The warrant is like one to search for stolen goods, which should be directed to constables (2 Hale's P.C. 149, 150). The plaintiff asked how much more necessary it was here to take a constable.
7. They also disobeyed by carrying Entick and his papers before Lovel Stanhope, not Lord Halifax. Stanhope acted as law-clerk, not as a justice of the peace, and no single justice ever claimed power to issue such a warrant.
8. The information was made before Justice Weston. The Secretary of State never saw the accuser or the accused. It seems to have been below his dignity. The officers introduced here are not in the law books.
9. Power to issue such a warrant is against the genius of the law of England. Even if the defendants had found what they searched for, they could not have justified it. They did not find it, and it does not appear that Entick wrote any of the papers. The trespass was done on mere surmise.
10. It is the publishing of a libel that is the crime, not having it locked in a private drawer. No power can lawfully break into a man's house and study to search for evidence against him. That would be worse than the Spanish Inquisition, and ransacking a man's drawers is like racking his body.
11. The warrant seizes all books and papers without exception. A Secretary of State has no right to see a man's private letters, family concerns, trade and business.
12. A stolen-goods warrant issues only on the strongest evidence of a felony and a hiding place. It reaches only the stolen goods. If none are found, all who entered are trespassers.
13. No usage since the Revolution makes it lawful. Even a custom that is unreasonable or against common right cannot make it good (Davis 32 b). These warrants go back only about 80 years. The Court should tear into rags this "remnant of Star-Chamber tyranny".

For the defendants: first argument

1. The defendants said they were not alarmed if the power was held to be in the Secretary of State. It had been used in the best of times since the Revolution. Their first point was that the Secretary of State has power to grant these warrants. Their second was that 24 Geo. 2, c. 24 (sic, as printed) bars the action against the messengers.
2. A Secretary of State has the same power to commit for treason as a justice of the peace. They relied on Kendale and Roe (Skin. 596; 1 Salk. 346; 1 Ld. Raym. 65; 5 Mod. 78). They also relied on Sir Wm. Wyndham, committed to the Tower by James Stanhope on 7 October 1715 (1 Stra. 2); 2 Hawk. P.C. 117, sect. 4; 1 Leon. 70, 71; Carth. 291; and 2 Leon. 175.
3. If he may commit for treason, he may commit for a seditious libel, hardly a lesser offence against the State. A Secretary of State is within the Habeas Corpus Act (habeas corpus: a court order to produce a detained person). A power to commit without a power to seize the offender and the libel would be nothing.
4. He therefore has the same power on information as a justice of the peace has to issue a stolen-goods warrant. There, officers may break open doors and boxes.
5. Even if the practice is an evil in particular cases, letting libellers who raise rebellion escape is a greater evil. They compared Mr Justice Foster on pressing (page 159): war is a great evil but is chosen to avoid a greater one, and private mischiefs must be borne to prevent a national calamity.
6. If the Secretary of State lacked jurisdiction, the defendants are still within 24 Geo. 2, c. 44. They are not within its words but are within its reason. They gave examples of statutes read wider than their words:
   • Circumspecte Agitatis, on the Bishop of Norwich, extends to all bishops (Fitz. Prohibition 3; 2 Inst.).
   • 25 Ed. 3, on the incumbent pleading in quare impedit, extends to all persons (38 Ed. 3, 31).
   • 1 Rich. 2, on the warden of the Fleet, extends to all gaolers (Plowd., Platt's case, 35 b).
   • The statute De Donis Conditionalibus extends to other limitations in tail (Tho. Jones 62).
   • 7 Jac. 1, c. 5, "constable" extends to a deputy constable (Moor 845).
7. Messengers in ordinary have always been treated as officers of the Secretaries of State. Commitment may be to their custody, as in Sir W. Wyndham's case.
8. A justice may make a constable pro hac vice (for the occasion), who would be within the statute. Officers acting under colour of office, even doing an illegal act, are within the statute (Vaugh. 113). No demand for the warrant was made and no action was brought within six months, so no right of action exists.
9. A conservator had power to bind over at common law, which a constable does not have (Dalton, cap. 1).

For the plaintiff: reply

1. That it was done in the best of times makes it more inexcusable. It was done when the common law, trampled by arbitrary power, had been revived.
2. The plaintiff did not deny that the Secretary of State may commit for treason and offences against the State. This case is about breaking into a subject's house and drawers and prying into his private affairs.
3. It is a false consequence that power to commit gives power to search. It could as well be said he may torture. If no stolen goods are found, officers have no right to take a man's other goods.
4. Pressing is one Judge's opinion from ancient records, when the lower subjects were little better than slaves. It has not been lawful without an Act of Parliament since the Revolution.
5. The statute was compared to old statutes read widely. But the law knows no such officers as messengers in ordinary to the King. The Habeas Corpus Act protects the innocent against arbitrary power, so it is no parallel.
6. If the messengers were the proper officers, the warrant would not have told them to take a constable. That suggests they were not. A person made an officer for a special purpose must show his authority. If he refuses, it is not murder to kill him. A constable or known officer need not show his warrant.

The Lord Chief Justice's question after the first argument

1. He said he would give no opinion yet. He raised a point that had escaped counsel on both sides. Suppose a warrant against law is granted, such as no magistrate of any rank has power to issue. Are the magistrate who grants it, and the officer who executes it, within 24 Geo. 2, c. 44?
2. He gave an example: a justice issues a warrant to search a house for stolen goods, directed to four of his servants. He asked that every point be argued to the bottom.

For the plaintiff: second argument

1. If no magistrate had legal power to grant this warrant, the magistrate usurping it cannot be within 24 Geo. 2, c. 44. The Act protects justices who err within their jurisdiction. It does not give power to issue warrants illegal from beginning to end.
2. If such a power had existed, the law books would show it. The old books are silent. Lambert never mentions a Secretary of State. Neither he nor a Privy Counsellor was ever considered a magistrate. Nothing of this power was raised in the arguments on the Star-Chamber and the Petition of Right.
3. State commitments were anciently per mandatum Regis (by the King's order in person) or by warrant of several Privy Counsellors together. The King has this power through his Privy Council, who answer to the people if wrong is done.
4. In the case of The Seven Bishops the Court presumed the commitment was by advice of the Privy Council. The Crown lawyers did not contend that a single Privy Counsellor had this power.
5. Neither the Secretary of State nor a Privy Counsellor ever claimed a right to administer an oath. They use a law-clerk who is a justice. Sir Barth. Shower in Kendale and Roe's case insisted they never had such power. Whoever has power to commit has power to bail, which the Secretary of State lacks.
6. It was once a question, with the Judges divided in Queen Elizabeth's time, whether a constable as ancient conservator could take a recognizance or bond. A Secretary of State was so inconsiderable that he is not mentioned in the Statute of Scandalum Magnatum. He takes no oath of office and gives no security for the judicial power he now usurps. If it was an ancient power it cannot now be given by the King. The King cannot make two Chief Justices of the Common Pleas, or put the Great Seal in commission without an Act.
7. There was formerly one Secretary of State and now there are two. If they have magistracy, a law should give it to two (Samf. Pl. Cor. 72; 4 Inst. c. 5, Court of Star-Chamber).
8. Admitting power to commit for high treason, it does not follow that power exists for a misdemeanor. It is of necessity in treason, which needs immediate interposition for the public benefit.
9. In Walsingham's case (1 Leon. 71), the return on the habeas corpus said the party was committed by order of the whole Privy Council of the Queen. Walsingham found he lacked that power alone, so the case favours the plaintiff.
10. Commitment by the High Commission Court of York was declared illegal from the beginning by Parliament. So was ship-money.

For the defendants: second argument

1. The ablest Judges and advocates since the Revolution have agreed that Secretaries of State may commit for a misdemeanor. Secretaries of State have been held in high regard for two hundred years.
2. Their rank is settled by 27 H. 8, c. 11 and 31 H. 8, c. 10 (also 4 Inst. 362, cap. 77; 4 Inst. 56; Selden's Titles of Honour). A Secretary of State is more than a mere clerk. Minshew says he is from the secret councils of the King.
3. Serjeant Pengelly moved that Sir Wm. Wyndham be bailed. That concedes that a Secretary of State may commit for less than treason. Lord Holt seems to agree that such a commitment is good (Skin. 598; 1 Ld. Raym. 65).
4. No case says in what cases a Secretary of State can or cannot commit. They asked by what power he could commit in treason alone.
5. They cited the House of Commons resolution on the Petition of Right (Selden; Parliamentary History, vol. 8, fol. 95, 96). Secretary Coke told the Lords it was his duty to commit by the King's command.
6. They cited Yoxley's case (Carth. 291): committed by the Secretary of State on the Statute of Elizabeth for refusing to say whether he was a Roman Catholic priest.
7. They cited The Queen and Derby (Fortescue's Rep., Mich. 10 Annae): a commitment for a libel by a Secretary of State, held good. Bathurst, J. said he had seen the habeas corpus and return.
8. They cited The King and Earbury (Mich. 7 Geo. 2, 2 Bernard. 346): a motion to discharge a recognizance for writing a paper called the Royal Oak. Lord Hardwicke said it was settled in Kendale and Roe that a Secretary of State may apprehend persons suspected of treasonable practices. They added that the Crown-Office has many precedents of commitments for libels against the Government.

Court's Reasoning

The judgment is delivered as the opinion of the whole Court (Curia). It has no numbered paragraphs, so steps are cited to the Court's own paragraph blocks in order.

The Court (Curia)

1. Noted: The defendants made two defences. The first was that they were within 24 Geo. 2, c. 44. The second was that Secretaries of State had frequently granted such warrants since the Revolution without challenge, so the warrants were legal. (Court, opening block)
2. Noted: A Secretary of State who is a Privy Counsellor, if he is a conservator of the peace, has whatever power to commit he has by the common law. If seen only as a Privy Counsellor, he is the only one at the board who has used this authority in recent years. (Court, block on the Secretary's status)
3. Noted: As a conservator he never binds to the peace, and the Court found no other conservator who did. He has no power to administer an oath or take bail. (Court, block on the Secretary's status)
4. Held: Yet it must be admitted that he is in the full exercise of power to commit for treason and seditious libels against the Government, whatever the original source. The cases of The Queen and Derby, The King and Earbury and Kendale and Roe show this. (Court, block on the Secretary's status)
5. Noted: The Court first asked what a Secretary of State is. He is the keeper of the King's signet, with which the King's private letters are signed (2 Inst. 556; Coke on Articuli Super Chartas, 28 Ed. 1). (Court, block on what a Secretary is)
6. Noted: Lord Coke's silence is a strong presumption that the power was not in him then. Formerly the Secretary was not a Privy Counsellor or magistrate. He grew significant about the Revolution and grew great when the princes of Europe sent ambassadors. (Court, block on what a Secretary is)
7. Noted: It seems inconsistent that a Secretary should commit but not administer an oath or take bail. Who can commit and cannot examine? The House of Commons commits without oath, but that is not this case. (Court, block on what a Secretary is)
8. Noted: The law books say little of Secretaries of State. He is not among the old conservators in Lambert, Crompton and Fitzherbert. A Privy Counsellor is not found in the old books until Kendall and Roe's case. The Court found no account of Secretaries of State in the law books except in the few cases mentioned. 1 Leon. 70, 71 (29 Eliz.) is the first case noticing a commitment by a Secretary. In 2 Leon. 175 the Judges knew no such committing magistrate. (Court, block on what a Secretary is)
9. Noted: The Petition of Right shows the King and Council claimed a power to commit. Its silence on the Secretary suggests he neither claimed nor had it. The Statute 16 Car. 1 abolishing the Star-Chamber binds the King not to commit and gives a habeas corpus. The Commons took no notice of a Secretary's claim. (Court, block on what a Secretary is)
10. Noted: The Secretary's power to commit derived from commitment per mandatum Regis (Ephemeris Parliamentaria). Coke told the House he must commit without showing cause if he did his duty to the King. 1 Leon. 70, 71 shows that a commitment by a single Privy Counsellor was not warranted. (Court, block on what a Secretary is)
11. Noted: The Licensing Statute, 13 and 14 Car. 2, c. 33, s. 15, licensed a messenger under a Secretary's warrant to search for unlicensed books and bring them before him. The warrant said it was by the King's command (Stamford; Lambert, cap. Bailment). (Court, block on what a Secretary is)
12. Noted: All the Judges in Elizabeth's time held that a warrant of commitment by one Privy Counsellor must show it was by the King in Council (And. 297). They remonstrated that no subject ought to be committed by a Privy Counsellor against the law of the realm. (Court, block on what a Secretary is)
13. Noted: Before 3 Car. 1 all Privy Counsellors used this power. From then they disused it but still committed per mandatum Regis (Journal of the House of Commons 195, 16 Car. 1). Coke and Selden argued that the King's power to commit meant by his Courts of Justice. (Court, block on what a Secretary is)
14. Noted: In The Seven Bishops, the Court and the King's Council admitted a warrant signed outside the Council would have been bad. The Court presumed it was signed at the board. Pollexfen said the Council board had power to commit, but only in high treason. (Court, block on what a Secretary is)
15. Held: A power to commit in treason does not carry a power to commit for lesser crimes. The power exists in one case only, so it cannot be extended without authority. (Court, block on what a Secretary is)
16. Held: The Secretary is not a conservator of the peace. Justice Rokeby said only that he is in the nature of a conservator. But the Court is bound by The Queen and Derby and The King and Earbury. (Court, block on what a Secretary is)
17. Held: The Secretary of State is not a conservator, nor a justice of the peace quasi secretary, within the words or equity of 24 Geo. 2, c. 44. Even if he were a conservator, the preamble shows the statute protects justices of the peace, and the two are not convertible terms. (Court, block on the statute)
18. Noted: Cases construing old statutes (the warden of the Fleet, the Bishop of Norwich) do not apply to modern statutes. The best way to read modern statutes is to follow their words. (Court, block on the statute)
19. Why: A justice is liable to actions, and the Act suits one who acts by warrant directed to constables. A conservator is not trusted with executing statutes. He is not liable to actions, never acts and is almost forgotten. There never was an action against a conservator as such. The Act could not have been thought to cover him, and ad ea quae frequenter accident jura adaptantur (laws are fitted to what happens often). (Court, block on the statute)
20. Noted: The Act of Jac. 1, letting officers plead the general issue and give special matter in evidence, read with 24 Geo. 2, makes the latter a second part of the former. (Court, block on the statute)
21. Held: Neither the Secretary of State nor the messengers are within 24 Geo. 2, c. 44. The Court was clearly of that opinion. (Court, block on the statute)
22. Held: Even if the messengers were within the Act, they took no constable as the warrant required. That alone would be fatal to them. (Court, block on the statute)
23. Held: They also did not follow the warrant by carrying Entick and his books before Lovel Stanhope and not Lord Halifax. That was wrong because a Secretary cannot delegate his power and must act personally in this part of his office. (Court, block on the statute)
24. Noted: The defendants having failed under the statute, the Court turned to the Secretary's special justification. If he has no jurisdiction to grant a warrant to break open doors, locks and boxes and seize a man and all his books on an information of publishing a libel, the warrant will not justify the defendants. (Court, block on the justification)
25. Noted: In Shergold v. Holloway (2 Stran. 1002), B.R. resolved that a justice's warrant to arrest the party will not justify the officer where the justice had no jurisdiction. (Court, block on the justification)
26. Held: The warrant was an execution in the first instance. There was no previous summons, examination, hearing of the plaintiff or proof that he wrote the libels. No other magistrate claims such a power, except Scroggs C.J. (Court, block on the justification)
27. Why: The execution was left to the defendants' discretion, in the plaintiff's absence or presence, with no witness. They were to seize all papers, including bank bills and valuables. Nobody might be there to detect them. (Court, block on the justification)
28. Noted: If this were lawful, both Houses of Parliament would be involved, because they ruled that privilege does not extend to this case. In Wilkes's case, a member of the Commons, all his books and papers were seized. One messenger said his oath obliged him to sweep away all papers. (Court, block on the justification)
29. Held: No such law is in the books. Our law holds every man's property so sacred that no man may set foot on a neighbour's close without leave. If he does, he is a trespasser though he does no damage. One who treads on a neighbour's ground must justify it by law. (Court, block on the justification)
30. Held: The defendants cannot rely on usage since the Revolution. They did not state it in their plea, so it was not in issue at trial. The Court said there is no law in this country to justify what they did. (Court, block on the justification)
31. Why: If it were law, it would destroy all comforts of society, because papers are often the dearest property a man has. (Court, block on the justification)
32. Noted: The stolen-goods comparison fails. Lord Coke denied the lawfulness of stolen-goods warrants (4 Inst. 176, 177), though they are now law. There the justice and informer must proceed with great caution. An oath is needed that the party has had his goods stolen and has strong reason to think they are in the place. If not found, he is a trespasser. The officer in that case is a witness. Here there were no witnesses and no inventory was taken. If it were lawful, many guards of property would have attended. (Court, block on the justification)
33. Noted: The usage since the Revolution is too modern to be law. The common law did not begin then. The ancient constitution was repaired and revived by the Revolution. The King's Bench had lately said no objection had ever been taken to general warrants, and they had passed sub silentio (in silence). (Court, block on the justification)
34. Noted: This is the first attempt to prove that a modern practice of a private office, to enter a man's house and take away all his books and papers in the first instance, is law. It is not found in the books. The guilt or poverty of those searched must have kept them from contesting the power of a Secretary of State and the Solicitor of the Treasury. (Court, block on the justification)
35. Held: The warrant seems to have taken its rise from the Licensing Act, 13 and 14 Car. 2, c. 33. The Court was of opinion that it cannot be justified by law, despite the resolution of the Judges of that time that a house may be searched for a libel. The twelve Judges cannot make law. (Court, block on the justification)
36. Held: If a man is punishable for having a libel in private custody, half the kingdom would be guilty in the case of a favourable libel, if libels may be searched for and seized by whomsoever and wherever the Secretary of State thinks fit. (Court, block on the justification)
37. Noted: It was said seizing the libel before publication is better for the Government. The Court said that if the Legislature holds that opinion, it will make it lawful. Sir Samuel Astry was committed to the Tower for asserting a law of State distinct from the common law. (Court, block on the justification)
38. Noted: The law never forces evidence from the party who holds it. When an adversary has your deeds, the only lawful way to get them back is an action (2 Stran. 1210, The King and Cornelius; The King and Dr. Purnel, Hil. 22 Geo. B.R.). (Court, block on the justification)
39. Held: Our law is wise and merciful and supposes every accused man innocent until tried by his peers. On the whole the Court was of opinion that this warrant is wholly illegal and void. (Court, block on the justification)
40. Noted: The Court added a closing word. It said it is no advocate for libels. All Governments must set their faces against them. If juries do not prevent them they may prove fatal to liberty, and the worst Government is better than none. (Court, closing block)

Authorities

• Kendale and Roe (Skin. 596; 1 Salk. 346; 1 Ld. Raym. 65; 5 Mod. 78): a Secretary of State may commit for treason. The Court cited it with Derby and Earbury as showing that the Secretary exercises the power to commit. (Court, block on the Secretary's status)
• The Queen and Derby (Fortescue's Rep., Mich. 10 Annae): a commitment for a libel by a Secretary of State, held good. The Court said it was bound by this. (Court, blocks on the Secretary's status and the conservator)
• The King and Earbury (Mich. 7 Geo. 2, 2 Bernard. 346): the Court said it was bound by this case on the Secretary's power to commit. (Court, blocks on the Secretary's status and the conservator)
• Sir Wm. Wyndham's case (1 Stra. 2): committed by a Secretary of State. Argued by the defendants. The plaintiff's reply conceded the power to commit for treason. (Counsel, first argument)
• Shergold v. Holloway (2 Stran. 1002): a justice's warrant to arrest will not justify the officer if the justice had no jurisdiction. The Court used it against the defendants. (Court, block on the justification)
• The King and Cornelius (2 Stran. 1210) and The King and Dr. Purnel (Hil. 22 Geo. B.R.): cited for the rule that an adversary's evidence can be got back only by action. (Court, block on the justification)
• 1 Leon. 70, 71 (29 Eliz.): first case noticing a commitment by a Secretary of State. The Court said it shows that a commitment by a single Privy Counsellor was not warranted. (Court)
• 2 Leon. 175: the Judges knew no such committing magistrate as the Secretary of State. (Court)
• Yoxley's case (Carth. 291): committed by a Secretary of State for refusing to say if he was a Roman Catholic priest. Argued by the defendants. (Counsel, second argument)
• The case of The Seven Bishops: the Court presumed the commitment was by the Privy Council. Discussed by the plaintiff (second argument) and by the Court. (Court)
• Wilkes's case: all a member's books and papers were seized. The Court cited it as an example of the practice. (Court, block on the justification)
• Sir Samuel Astry: committed to the Tower for asserting a law of State distinct from the common law. (Court, block on the justification)
• Walsingham's case (1 Leon. 71): committed by order of the whole Privy Council. Argued by the plaintiff. (Counsel, second argument)
• Serjeant Pengelly's motion (Wyndham's bail), Skin. 598 (Lord Holt), Lord Hardwicke in Earbury, and the Crown-Office precedents: argued by the defendants. (Counsel, second argument)
• Mr Justice Foster on pressing (page 159): argued by the defendants and answered by the plaintiff. (Counsel, first argument)
• 1 Hale's P.C. 581; 2 Hale's P.C. 149, 150; 2 Hawk. P.C. 117; Davis 32 b; Dalton, cap. 1; Vaugh. 113; Moor 845; Tho. Jones 62; Plowd. (Platt's case, 35 b); Fitz. Prohibition 3; 2 Inst.; 38 Ed. 3, 31; And. 297; Samf. Pl. Cor. 72; 4 Inst. c. 5; 4 Inst. 176, 177; 4 Inst. 362; 4 Inst. 56; 2 Inst. 556; Carth. 291; Skin. 598; Selden; Minshew; Stamford; Lambert; Ephemeris Parliamentaria; Journal of the House of Commons 195; Parliamentary History, vol. 8: law books cited by counsel or the Court for the points above. (Counsel and Court)
• Statutes and old Acts: Circumspecte Agitatis; 25 Ed. 3; 1 Rich. 2; De Donis Conditionalibus; 7 Jac. 1, c. 5; the Act of Jac. 1 on officers pleading the general issue; 27 H. 8, c. 11; 31 H. 8, c. 10; 13 and 14 Car. 2, c. 33, s. 15; 16 Car. 1; the Petition of Right; the Habeas Corpus Act; the Statute of Scandalum Magnatum. (Counsel and Court)

Provisions mentioned

• 24 Geo. 2, c. 44: no action lies against a constable, other officer or person acting in aid of him for anything done under a justice's warrant until a written demand for a perusal and copy of the warrant has been made and refused or neglected for six days. The verdict adds that suit must be brought within six calendar months.
• 13 and 14 Car. 2, c. 33, s. 15 (Licensing Act): licenses a messenger under a Secretary's warrant to search for unlicensed books and bring them before the Secretary.
• Habeas Corpus Act: mentioned by both sides. The plaintiff said it was made to protect the innocent against arbitrary power.
• Petition of Right and 16 Car. 1: the Court used their silence on the Secretary of State to show he claimed no power to commit.

Judgement

1. The Court held that the Secretary of State and the messengers are not within 24 Geo. 2, c. 44.
2. It held that the warrant is "wholly illegal and void" and gave no justification to the defendants.
3. Judgment for the plaintiff.
4. The special verdict fixed damages at 300l. if the Court found the defendants guilty, plus 40s. for costs and charges.

Legal Principle / Ratio

A warrant to search a man's house and seize all his papers in the first instance, on an information of libel, without hearing him or proof of authorship, had no lawful basis. It could not justify the officers, and a practice since the Revolution did not make it law. The Court said: "we are all of opinion that this warrant is wholly illegal and void."

Critical Analysis

Analysis based on the judgment text.

• The judgment does not name the presiding Lord Chief Justice or the other judges. It is reported as the view of the Court, so the source cannot show whether any judge differed.
• The Court did not decide whether a warrant naming the offender and specific papers could ever be lawful. It said only that this warrant was illegal.
• The Court said that if the Legislature holds that opinion, it will make it lawful. It left open what statutory power could exist.

Significance

• The judgment treats entry on a neighbour's land without leave as a trespass even when no damage is done.
• It shows that an officer's warrant is no defence if the issuer had no jurisdiction.
• It shows that long practice by Secretaries of State did not turn an unlawful warrant into a lawful one.

Exam-Important Points

• Rule: a warrant issued without jurisdiction does not protect the officer who executes it (Shergold v. Holloway).
• Trap: the Secretary of State could commit for treason and seditious libel by precedent. That did not carry a power to search and seize papers in the first instance.
• Statute: 24 Geo. 2, c. 44 protected justices and officers acting under their warrants. The Court held the Secretary and the messengers were outside it.
• Extra faults: the messengers took no constable and delivered the prisoner to Stanhope, not the Earl.
• Verdict: damages were assessed conditionally at 300l. and costs 40s. in the special verdict.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited. The citation is not in the judgment text beyond the header.