Entick v. Carrington Camden's judgement (1765), 19 State Trials 1045, pp. 391-397.

John Entick was an author of The Monitor, an opposition paper. He was arrested, his house was forcibly entered and his books and paper seized by government agents on the basis of a warrant issued by the Secretary of State.

LORD CHIEF JUSTICE CAMDEN . . . The power of this minister, in the way wherein it has been usually exercised, is pretty singular.

      If he considered in the light of a privy counsellor, although every member of that board is equally entitled to it with himself, yet he is the only one of that body who exerts it. . . .

      To consider him as a conservator. He never binds to the peace, or good behaviour, which seems to have been the principal duty of a conservator; at least he never does it in those cases, where the law requires those sureties. But he commits in certain other cases, where it is very doubtful, whether the conservator had any jurisdiction whatever.

      His warrants are chiefly exerted against libellers, whom he binds in the first instance to their good behaviour, which no other conservator ever attempted, from the best intelligence that we can learn from our books.

      And though he doth all these things, yet it seems agreed, that he hath no power whatsoever to administer an oath or take bail.

      This jurisdiction, as extraordinary as I have described it, is so dark and obscure in its origin, that the counsel have not been able to form any certain opinion from whence it sprang.

      Sometimes they annex it to the office of secretary of state, sometimes to the quality of privy counsellor; and in the last argument it has been derived from the king's royal prerogative to commit by his own personal command.

      Whatever may have been the true source of this authority it must be admitted, that at this day he is in the full legal exercise of it; because there has been not only a clear practice of it, at least since the Revolution, confirmed by a variety of precedents; but the authority has been recognized and confirmed by two cases in the very point since that period: and therefore we have not a power to unsettle or contradict it now, even though we are persuaded that the commencement of it was erroneous . . .

      To proceed then . . . and consider the person in the capacity of a secretary of state . . . [Examination of the history and powers of the office.]

      I have now finished all I have to say upon this head; and am satisfied, that the secretary of state hath assumed this power as a transfer, I know not how, of the royal authority to himself; and that the common law of England knows no such magistrate. . . .

      . . . I come in my last place to the point, which is made by the justification; for the defendants . . . are under a necessity to maintain the legality of the warrants, under which they have acted, and to shew that the secretary of state in the instance now before us, had a jurisdiction to seize the plaintiff's papers. If he had no such jurisdiction, the law is clear, that the officers are as much responsible for the trespass as their superior.

      This, though it is not the most difficult, is the most interesting question in the cause; because if this point should be determined in favour of the jurisdiction, the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.

      The messenger, under this warrant, is commanded to seize the person described, and to bring him with his papers to be examined before the secretary of state. In consequence of this, the house must be searched; the lock and doors of every room, box, or trunk must be broken open; all the papers and books without exception, if the warrant be executed according to its tenor, must be seized and carried away; for it is observable, that nothing is left either to the discretion or to the humanity of the officer.

      This power so assumed by the secretary of state is an execution upon all the party's papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper.

      This power, so claimed by the secretary of state, is not supported by one single citation from any law book extant. It is claimed by no other magistrate in this kingdom but himself; the great executive hand of criminal justice, the lord chief justice of the court of King's-bench, chief justice Scroggs excepted, never having assumed this authority.

      The arguments, which the defendants' counsel have thought fit to urge in support of this practice, are of this kind.

      That such warrants have issued frequently since the Revolution, which practice has been found by the special verdict; though I must observe, that the defendants have no right to avail themselves of that finding, because no such practice is averred in their jurisdiction.

      That the case of the warrants bears a resemblance to the case of search for stolen goods.

      They say too, that they have been executed without resistance upon many printers, booksellers, and authors, who have quietly submitted to the authority; that no action hath hitherto been brought to try the right: and that although they have been often read upon the returns of Habeas Corpus, yet no court of justice has ever declared them illegal.

      And it is further insisted, that this power is essential to government, and the only means of quieting clamours and sedition.

      These arguments, if they can be called arguments, shall be all taken notice of; because upon this question I am desirous of removing every colour or plausibility.

      Before I state the question, it will be necessary to describe the power claimed by this warrant in its full extent.

      If honestly exerted, it is a power to seize that man's papers, who is charged upon oath to be the author or publisher of a seditious libel; if oppressively, it acts against every man, who is so described in the warrant, though he be innocent.

      It is executed against the party, before he is heard or even summoned; and the information, as well as the informers, is unknown.

      It is executed by messengers with or without a constable (for it can never be pretended, that such is necessary in point of law) in the presence or the absence of the party, as the messengers shall think fit, and without a witness to testify what passes at the time of the transaction; so that when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof.

      If this injury falls upon an innocent person, he is as destitute of remedy as the guilty: and the whole transaction is so guarded against discovery, that if the officer should be disposed to carry off a bank-bill, he may do it with impunity, since there is no man capable of proving either the taker or the think taken.

      It must not be here forgot, that no subject whatsoever is privileged from this search; because both Houses of Parliament have resolved, that there is no privilege in the case of a seditious libel.

      Nor is there pretence to say, that the word 'papers' here mentioned ought in point of law to be restrained to the libellous papers only. The word is general, and there is nothing in the warrant to confine it; nay, I am able to affirm, that it has been upon a late occasion executed in its utmost latitude: for in the case of Wilkes against Wood, when the messengers hesitated about taking all the manuscripts, and sent to the secretary of state for more express orders for that purpose, the answer was, "that all must be taken, manuscripts and all." Accordingly, all was taken, and Mr. Wilkes' private pocket-book filled up the mouth of the sack.

      I was likewise told in the same cause by one of the most experienced messengers, that he held himself bound by his oath to pay an implicit obedience to the commands of the secretary of state; that in common cases he was contended to seize the printed impressions of the papers mentioned in the warrant; but when he received directions to search further, or to make a more general seizure, his rule was to sweep all. The practice has been correspondent to the warrant.

      Such is the power, and therefore one should naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant.

      If it is law, it will be found in our books. If it is not to be found there, it is not law.

      The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law, are various. Distresses, executions, forfeitures, taxes, &c. are all of this description; wherein every man by common consent gives up that right, for the sake of injustice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

      According to this reasoning, it is now incumbent upon the defendants to shew the law, by which this seizure is warranted. If that cannot be done, it is a trespass.

      Papers are the owner's goods and chattels¬ they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society. . . .

      I come now to the practice since the Revolution, which has been strongly urged, with this emphatical addition, that an usage tolerated from the era of liberty, and continued downwards to this time through the best ages of the constitution, must necessarily have a legal commencement. Now, though that pretence can have no place in the question made by this plea, because no such practice is therefore alleged; yet I will permit the defendant for the present to borrow a fact from the special verdict, for the sake of giving it an answer.

      If the practice began then, it began too late to be law now. If it was more ancient, the Revolution is not to answer for it; and I could have wished, that upon this occasion the Revolution had not been considered as the only basis for our liberty.

      The Revolution restored this constitution to its first principles. It did no more. It did not enlarge the liberty of the subject; but gave it a better security. It neither widened or contracted the foundation, but repaired, and perhaps added a buttress or two to the fabric; and if any minister of state has since deviated from the principles at that time recognized, all that I can say is, that, so far from being sanctified, they are condemned by the Revolution.

      . . . But still it is insisted, that there has been a general submission, and no action brought to try the right.

      I answer, there has been a submission of guilt and poverty to power and the terror of punishment. But it would be strange doctrine to assert that all the people of this land are bound to acknowledge that to be universal law, which a few criminal booksellers have been afraid to dispute. . .

      It is then said, that it is necessary for the ends of government to lodge such a power with a state officer; and that it is better to prevent the publication before than to punish the offender afterwards. I answer, if the legislature be of that opinion, they will revive the Licensing Act. But if they have not done that, I conceive they are not of that opinion. And with respect to the argument of state necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions.

      Serjeant Ashley was committed to the Tower in the 3rd of Charles 1st, by the House of Lords only for asserting in argument, that there was a 'law of state' different from the common law; and the Shop-Money judges were impeached for holding, first, that state-necessity would justify the raising money without consent of parliament; and secondly, that the king was judge of that necessity.

      If the king himself has no power to declare when the law ought to be violated for reason of state, I am sure we his judges have no such prerogative.

      Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shewn, where the law forceth evidence out of the owner's custody by process. There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action.

      In the criminal law such proceeding was never heard of; and yet there are some crimes, such for instance as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction. . . .

      If, however, a right search for the sake of discovering evidence ought in any case to be allowed, this crime above all others ought to be excepted, as wanting such a discovery less than any other. It is committed in open daylight, and in the face of the world; every act of publication makes new proof; and the solicitor of the treasury, if he pleases, may be the witness himself.

      The messenger of the press, by the very constitution of his office, is directed to purchase every libel that comes forth, in order to be a witness. . . .

      I have now taken notice of everything that has been urged upon the present point; and upon the whole we are all of opinion, that the warrant to seize and carry away the party's papers in the case of a seditious libel, is illegal and void.

S.T., xix, 1045.