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