541. The Case of Seizure of Papers, being an Action of Trespass by JOHN ENTICK, Clerk, against NATHAN CARRINGTON and three other Messengers in ordinary to the King, Court of Common-Pleas, Mich. Term: 6 GEORGE III. a. d. 1765. [This Case is given with the above-mentioned title; because the chief point adjudged was, That a warrant to search for and seize the papers of the accused, in the case of a seditious libel, is contrary to law. But this was not the only question in the Case. All the other interesting subjects, which were discussed in the immediately preceding Case, except the question of General Warrants, were also argued in the following one; and most of them seem to have received a judicial opinion from the Court. Trespass for breaking and entering plaintiff's house, &C. to his lordship; and though from the want of any authority from him, the Editor exposes himself to some risk of disapprobation, yet his precautions to guard against it, with the disinterestedness of his motives, will, he is confident, if ever it should become necessary to explain the circumstances to his lordship, be received as a very adequate apology for the liberty thus hazarded. Hargrave.] IN trespass; the plaintiff declares that the defendants on the 11th day of November in the year of our Lord 1762, at Westminster in Middlesex, with force and arms broke and entered the dwelling-house of the plaintiff in the parish of St. Dunstan, Stepney, and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, &c. thereto affixed, and broke open the boxes, chests, drawers, &c. of the plaintiff in his house, and examined all the rooms, &c. in his dwelland broke the locks thereto affixed, and searched ing-house, and all the boxes, &c. so broke open, and read over, pried into and examined all the private papers, books, &c. of the plaintiff there found, whereby the secret affairs, &c. of the plaintiff became wrongfully discovered and made public; and took and carried away 100 printed charts, 100 printed pamphlets, &c. &c. of the plaintiff there found, and other 100 damage of the plaintiff 2,000l. charts, &c. &c. took and carried away, to the The state of the case, with the arguments of the counsel, is taken from Mr. Serjeant Wilson's Reports, 2 Wils. 275. But instead of his short note of the Judgment of the Court, the Editor has the pleasing satisfaction to present to the reader the Judgment itself at length, as delivered by the Lord Chief Justice of the Common-Pleas from written notes. It was not without some difficulty, that the copy of this Judgment was obtained by the Editor. He has reason to believe, that the original, most excellent and most valuable as its contents are, was not deemed worthy of preservation by its author, but was actually committed to the flames. Fortunately, the Editor remembered to have formerly seen a copy of the Judgment in the hands of a friend; and upon application to him, it was imme- The defendants plead 1st, not diately obtained, with liberty to the Editor to guilty to the whole declaration, make use of it at his discretion. Before, whereupon issue is joined. 2dly, as to the breaking and entering the however, he presumed to consult his own dwelling-house, and continuing four hours, wishes in the use, the Editor took care to and all that time disturbing him in the posconvince himself, both that the copy was au- session thereof, and breaking open the doors thentic, and that the introduction of it into to the rooms, and breaking open the boxes, chests, drawers, &c. of the plaintiff in his this Collection would not give offence. In-house, and the searching and examining all deed, as to the authenticity of the Judgment, except in some trifling inaccuracies, the probable effect of careless transcribing, a first reading left the Editor's mind without a doubt on the subject. But it was a respectful delicacy due to the noble lord by whom the Judgment was delivered, not to publish it, without first endeavouring to know, whether such a step was likely to be displeasing Special justification under the secretary a warrant of of state. the rooms, &c. in his dwelling-house, and all the boxes, &c. so broke open, and reading over, prying into, and examining the private papers, books, &c. of the plaintiff there found, and taking and carrying away the goods and chattels in the declaration first mentioned there fourd, and also as to taking and carrying away the goods and chattels in the declaration last mentioned, the defendants say, the plaintiff ought not to have his action against them, because they say, that before the supposed tres pass, on the 6th of November 1762, and before, until, and all the time of the supposed trespass, the earl of Halifax was, and yet is one of the lords of the king's privy council, and one of his principal secretaries of state, and that the earl before the trespass on the 6th of November 1762, made his warrant under his hand and seal directed to the defendants, by which the earl did in the king's name authorize and require the defendants, taking a constable to their assistance, to make strict and diligent search for the plaintiff, mentioned in the said warrant to be the author, or one concerned in the writing of several weekly very seditious papers, intitled, The Monitor or British Freeholder, N° 357, 358. 360. 373. 376. 378. and 380, London, printed for J. Wilson and J. Fell in Paternoster-row,' containing gross and scandalous reflections and invectives upon his majesty's government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring together with his books and papers in safe custody before the earl of Halifax to be examined concerning the premisses, and further dealt with according to law; in the due execution whereof all mayors, sheriffs, justices of the peace, constables, and all other his majesty's officers civil and military, and loving subjects, whom it might concern, were to be aiding and assisting to them the defendants, as there should be occasion. And the defendants further say, that afterwards and before the trespass on the same day and year, the warrant was delivered to them to be executed, and thereupon they on the same day and year in the declaration, in the day time about eleven o'clock, being the said time when, &c. by virtue and for the execution of the said warrant entered the plaintiff's dwelling-house, the outer door thereof being then open, to search for and seize the plaintiff and his books and papers in order to bring him and them before the earl of Halifax, according to the warrant; and the defendants did then and there find the plaintiff, and seized and apprehended him, and did search for his books and papers in his house, and did necessarily search and examine the rooms therein, and also his boxes, chests, &c. there, in order to find and seize his books and papers, and to bring them along with the plaintiff before the said earl, according to the warrant; and upon the said search did then in the said house find and seize the goods and chattels of the plaintiff in the declaration, and on the same day did carry the said books and papers to a house at Westminster, where the said earl then and long before transacted the business of his office, and delivered the same to Lovel Stanhope, esq. who then was and yet is an assistant to the earl in his office of secretary of state, to be examined, and who was then authorized to receive the same from them for that purpose, as it was lawful for them to do; and the plaintiff afterwards (to wit) on the 17th of November in the said year was discharged out of their custody; and in searching for the books and papers of the plaintiff the defendants did necessarily read over, pry into, and examine the said private papers, books, &c. of the plaintiff in the declaration mentioned then found in his house; and because at the said time when, &c. the said doors in the said house leading to the rooms therein, and the said boxes, chests, &c. were shut and fastened so that the defendants could not search and examine the said rooms, boxes, chests, &c. they, for the necessary searching and examining the same, did then necessarily break and force open the said doors, boxes, chests, &c. as it was lawful for them to do; and on the said occasion the defendants necessarily stayed in the house of the plaintiff for the said four hours, and unavoidably during that time disturbed him in the pos session thereof, they the defendants doing as little damage to the plaintiff as they possibly could, which are the same breaking and entering the house of the plaintiff, &c. (and so repeat the trespass covered by this plea) whereof the plaintiff above complains; and this, &c. wherefore they pray judgment, &c. propria. The plaintiff replies to the plea of justification above, that (as to the trespass Replication thereby covered) he by any thing de injuria sua alledged by the defendants therein ought not to be barred from having his action against them, because he says, that the defendants at the parish of Stepney, of their own wrong, and without the cause by them in that plea alledged, broke and entered the house of the plaintiff, &c. &c. in manner and form as the plaintiff hath complained above; and this he prays may be inquired of by the country; and the defendants do so likewise. There is another plea of justification like the first, with this difference only; that in the last plea it is alledged, the plaintiff and his papers, &c. were carried before lord Halifax, but in the first, it is before Lovel Stanhope, his assistant or law clerk; and the like replication of de injuria sua propria absq; tali causa,' whereupon a third issue is joined. Special Ver. This cause was tried at Westminster-hall before the lord chief justice, when the jury found a Special Verdict to the following purport. "The jurors upon their oath say, as to the issue first joined (upon the plea not guilty to the whole trespass in the declaration) that as to the coming with force and arms, and also the trespass in declaration, except the breaking and entering the dwelling house of the plaintiff, and continuing therein for the space of four hours, and all that time disturbing him in the posses sion thereof, and searching several rooms therein, and in one bureau, one writing desk, and several drawers of the plaintiff in his house, and reading over and examining several of his papers there, and seizing, taking and carrying away some of his books and papers there found, in the declaration complained of, the said defendants are not guilty. As to breaking and entering the dwelling-house, &c. (above excepted) the jurors on their oath say, that as the time of making the following information, The secretary of state's warrant to seize plaintiff and papers, [1034 and before and until and at the time of grant- the king's messengers, and duly sworn to that ing the warrant hereafter mentioned, and from office, for apprehending the plaintiff, &c. the thence hitherto, the earl of Halifax was, and tenor of which warrant produced in evidence still is one of the lords of the king's privy to the jurors, follows in these council, and one of his principal secretaries of words and figures: George Monstate, and that before the time in the declara- tagu Dunk, earl of Halifax, vistion, viz. on the 11th of October 1762, at St. 'count Sunbury, and baron Halifax, his books and James's Westminster, one Jonathan Scott of one of the lords of his majesty's London, bookseller and publisher, came before 'honourable privy council, lieutenant general of Edward Weston, esq. an assistant to the said his majesty's forces, lord lieutenant general earl, and a justice of peace for the city and and general governor of the kingdom of Ireliberty of Westminster, and there made and land, and principal secretary of state, &c. gave information in writing to and before the these are in his majesty's name to authorize said Edward Weston against the said John En- and require you, taking a constable to your tick and others, the tenor of which information 'assistance, to make strict and diligent search now produced and given in evidence to the for John Entick, the author, or one concerned urors followeth in these words and figures, to in writing of several weekly very seditious wit, The voluntary information 'papers, intitled the Monitor, or British Freeof J. Scott. In the year 1755, I holder, N° 357, 358, 360, 373, 376, 378, 379, 'proposed setting up a paper, and ' and 380, London, printed for J. Wilson and mentioned it to Dr. Shebbeare, and in a few J. Fell in Pater Noster Row, which contain days one Arthur Beardmore an attorney at gross and scandalous reflections and inveclaw sent for me, hearing of my intention, and tives upon his majesty's government, and desired I would mention it to Dr. Shebbeare, upop both houses of parliament; and him, that he Beardmore and some others of his having found you are to seize and apprehend, friends had an intention of setting up a paper and to bring, together with his books and in the city. Shebbeare met Beardmore, and papers, in safe custody before me to be examyself and Entick (the plaintiff) at the Horn 'mined concerning the premisses, and further tavern, and agreed upon the setting up the 'dealt with according to law; in the due exepaper by the name of the Monitor, and that 'cution whereof all mayors, sheriffs, justices Dr. Shebbeare and Mr. Entick should have of the peace, constables, and other his majes2001. a-year each. Dr. Shebbeare put into 'ty's officers civil and military, and loving subBeardmore's and Entick's hands some papers,jects whom it may concern, are to be aiding Scott's infornation before justice of eace. but before the papers appeared Beardmore sent them back to me (Scott). Shebbeare insisted on having the proportion of his salary paid him; he had 50l. which I (Scott) fetched from Vere and Asgill's by their note, which Beardmore gave him; Dr. Shebbeare upon this was quite left out, and the monies have been continued to Beardmore and Entick ever since, by subscription, as I supposed, raised I know not by whom it has been continued in these hands ever since. Shebbeare, * Beardmore and Entick all told me that the late alderman Beckford countenanced the #paper: they agreed with me that the profits of the paper, paying all charges belonging to it, should be allowed me. In the paper of the 22d May, called Sejanus, I apprehend the character of Sejanus meant lord Bute: the original manuscript was in the handwriting of David Meredith, Mr. Beardmore's ⚫ clerk. I before received the manuscript for ⚫ several years till very lately from the said hands, and do believe that they continue still to write it. Jona. Scott, St. James's 11th ⚫ October 1762.' delivered to dants to be without a constable, and assisting to you as there shall be occa'sion; and for so doing this shall be your war'rant. Given at St. James's the 6th day of • November 1762, in the third year of his ma'jesty's reign, Dunk Halifax. To Nathan Carrington, James Watson, Thomas Ardran and Robert Blackmore, four of his majesty's messengers in ordinary.' And the jurors further say, the earl caused this warrant to be delivered to the defendants to be executed. And that the defendants afterwards on the 11th of November 1762, at 11 o'clock in the day time, by the same virtue and for execution of the warrant, but without any constable taken by them to their assistance, entered the house of the plaintiff, the outer door thereof being open, and the plaintiff being therein, to search for and seize the plaintiff and his books and papers, in order to bring him and them before the earl, according to the warrant; and the defendants did then find the plaintiff there, and did seize and apprehend him, and did there search for his books and papers in several rooms and in the house, and drawers of the plaintiff there in order to find in one bureau, one writing desk, and several and seize the same, and bring them along with "And the jurors further say, that on the 6th the plaintiff before the earl according to the warof November 1762, the said information was rant, and did then find and seize there some of the shewn to the earl of H. and thereupon the books and papers of the plaintiff, and perused and earl did then make and issue his warrant di-read over several other of his papers which rected to the defendants, then and still being they found in the house, and chose to read The above information was given voluntari- and carried the books, &c. to Lovel Jaw clerk, who is appointed to that office by the king's letters patent, and is a jus tice of peace. and that they necessarily continued there in the execution of the warrant four hours, and disturbed the plaintiff in his house, and then took him and his said books and papers from thence, and forth with gave notice at the office of the said secretary of state in Westminster unto Lovel Stanhope, esq. then before, and still being an assistant to the earl in the exanations of persons, books and papers seized by virtue of warrants Stanhope, the issued by secretaries of state, and also then and still being a justice of peace for the city and liberty of Westminster and county of Middlesex, of their having seized the plaintiff, his books and papers, and of their having them ready to be examined, and they then and there at the instance of the said Lovel Stanhope delivered the said books and papers to him. And the jurors further say, that, on the 13th of April in the first year of the king, his majesty, by his letters patent under the great seal, gave and granted to the said Lovel Stanhope the office of law-clerk to the secretaries of state. And the king did thereby ordain, constitute and appoint the law-clerk to attend the offices of his secretaries of state, in order to take the depositions of all such persons whom it may be necessary to examine upon affairs which might concern the public, &c. (and then the verdict sets out the letters patent to the law-clerk in hæc verba) as by the letters patent produced in evidence to the jurors appears. And the jurors further say, that Lovel Stanhope, by virtue of the said letters patent long before the time when, &c. on the 13th of April in the first year of the king was, and ever since hath been and still is law clerk to the king's secretaries of state, and bath execated that office all the time. And the jurors further say, that at different times from the time of the Revolution to this present time, the like warrants with that issued against the plaintiff, have been frequently granted by the secretaries of state, and executed by the messengers in ordinary for the time being, and that each of the defendants did respectively take at the time of being appointed messengers, the usual oath, that he would be a true servant to the king, &c. in the place of a messenger in That no de ordinary, &c. And the jurors further say, that no demand was ever made or left at the usual place of abode of the defendants, or any of them, by the plaintiff, or his attorney or agent in writing of the after the facts perusal and copy of the said war rant, so issued against the plaintiff as aforesaid, neither did the plaintiff commence or bring his said action against the defendants, or any of them, within six calendar months next after the several acts aforesaid, and each of them were and was done and committed by them as aforesaid; but whether, upon the whole matter as aforesaid by the jurors found, the said defendants are guilty of the trespass That the like warrants have issued since the Revolution. mand was made by plaintiff of a copy of the warrant, nor did plaintiff bring his action within six months done by defendants. Special ver in the com mon form. herein before particularly specified in breaking and entering the house of the plaintiff in the declaration mentioned, and continuing there for four hours, and all that time disturbing the plaintiff in the possession thereof, and searching several rooms therein, and one bureau, one writing desk, and several drawers of the plaintiff in his house, and reading over and examining several of his papers there, and seizing, taking and carrying away some of his books and papers there found; or the said plaintiff ought to maintain his dict concludes said action against them; the jurors are altogether ignorant, and pray the advice of the Court thereupon. And if upon the whole matter aforesaid by the jurors found, it shall seem to the Court that the defendants are guilty of the said trespass, and that the plaintiff ought to maintain his action against them, the jurors say upon their said oath, that the defendants are guilty of the said trespass in manner and form as the plaintiff hath thereof complained against them; and they assess the damages of the Damages plaintiff by occasion thereof, besides his costs and charges by him about his suit in this behalf laid out to 300l. and for those costs and charges, to 40s. But if upon the whole matter by the jurors found, it shall seem to the Court that the said defendants are not guilty of the said trespass; or that the plaintiff ought not to maintain his action against them; then the jurors do say upon their oath that the defendants are not guilty of the said trespass in manner and form as the plaintiff hath thereof complained against them. 3004. The last issue "And as to the last issue on the second special justification, the jury found for plaintiff. found for the plaintiff, that the defendants in their own wrong broke and entered, and did the trespass, as the plaintiff in his replication has alleged." This Special Verdict was twice solemnly argued at the bar; in Easter Term last by ser jeant Leigh for the plaintiff, and Burland, one of the king's serjeants, for the defendants; and in this present term by serjeant Glynn for the plaintiff, and Nares, one of the king's serjeants, for the defendants. Easter Term, 5 Geo. 3. Counsel for the Plaintiff. At the trial of this cause the defendants relied upon two defences; 1st, That a secretary of state as a justice or conservator of the peace, and these messengers acting under his warrant, are within the statute of the 24th of Geo. 2, c. 44, which enacts, (among other things) that no action shall be brought against any constable or other officer, or any person acting by his order and in his aid, for any thing done in obedience to the war'rant of a justice, until demand hath been made ' or left at the usual place of his abode by the party, or by his attorney in writing signed by the party, demanding the same, or the perusal and copy of such warrant, and the same hath 'been refused or neglected for six days after 'such demand,' and that no demand was ever made by the plaintiff of a perusal or copy of the warrant in this case, according to that statute, and therefore he shall not have this action against the defendants, who are merely ministerial officers acting under the secretary of state, who is a justice and conservator of the peace. 2dly, That the warrant under which the defendants acted, is a legal warrant, and that they well can justify what they have done by virtue thereof, for that at many different times from the time of the Revolution till this time, the like warrants with that issued against the plaintiff in this case have been granted by secretaries of state, and executed by the messengers in ordinary for the time being. As to the first. It is most clear and manifest upon this verdict, that the earl of Halifax acted as secretary of state when he granted the warrant, and not merely as a justice of the peace, and therefore cannot be within the statute 24 Geo. 2, c. 44, neither would he be within the statute if he was a conservator of the peace, such person not being once named therein; and there is no book in the law whatever, that ranks a secretary of state quasi secretary, among the conservators of the peace. Lambert, Coke, Hawkins, lord Hale, &c. &c. none of them take any notice of a secretary of state being a conservator of the peace, and until of late days he was no more indeed than a mere clerk. A conservator of the peace had no more power than a constable has now, who is a conservator of the peace at common law. At the time of making this statute, a justice of peace, constable, headborough and other officers of the peace, borsholders and tithingmen, as well as secretary of state, conservator of the peace, and messenger in ordinary, were all very well known; and if it had been the intent of the statute, that a secretary of state, conser, vator of the peace, and messenger in ordinary, should have been within the statute, it would have mentioned all or some of them; and it not having done so, they cannot be within it. A messenger certainly cannot be within it, who is nothing more than a mere porter, and lord Halifax's footmen might as well be said to be officers within the statute as these defendants. Besides, the verdict finds that these defendants executed the warrant without taking a constable to their assistance. This disobedience will not only take them out of the protection of the statute, (if they had been within it), but will also disable them to justify what they have done, by any plea whatever. The office of these defendants is a place of considerable profit, and as unlike that of a constable and tithingman as can be, which is an office of burthen and expence, and which he is bound to execute in person, and cannot substitute another in his room, though he may call persons to assist him. 1 Hale's P. C. 581. This warrant is more like a warrant to search for stolen goods and to seize them, than any other kind of warrant, which ought to be directed to con stables and other public officers which the law takes notice of. (4 Inst. 176.) 2 Hale's P. C. 149, 150. How much more necessary in the present case was it to take a constable to the defendants' assistance. The defendants have also disobeyed the warrant in another matter: being commanded to bring the plaintiff, and his books and papers before lord Halifax, they carried him and them before Lovel Stanhope, the law-clerk; and though he is a justice of the peace, that avails nothing; for no single justice of peace ever claimed a right to issue such a warrant as this, nor did he act therein as a justice of peace, but as the law-clerk to lord Halifax. The information was made before justice Weston. The secretary of state in this case never saw the accuser or accused. It seems to have been below his dignity. The names of the officers introduced here are not to be found in the law-books, from the first yearbook to the present time. As to the second. A power to issue such a warrant as this is contrary to the genius of the law of England; and even if they had found what they searched for, they could not have justified under it. But they did not find what they searched for, nor does it appear that the plaintiff was the author of any of the supposed seditious papers mentioned in the warrant; so that it now appears that this enormous trespass and violent proceeding is been done upon mere surmise. But the verdict says, such warrants have been granted by secretaries of state ever since the Revolution. If they have, it is high time to put an end to them; for if they are held to be legal, the liberty of this country is at an end. It is the publishing of a libel which is the crime, and not the having it locked up in a private drawer in a man's study. But if having it in one's custody was the crime, no power can lawfully break into a man's house and study to search for evidence against him. This would be worse than the Spanish inquisition ; for ransacking a man's secret drawers and boxes, to come at evidence against him, is like racking his body to come at his secret thoughts. The warrant is to seize all the plaintiff's books and papers without exception, and carry them before lord Halifax. What? Has a secretary of state a right to see all a man's private letters of correspondence, family concerns, trade and business? This would be monstrous indeed! and if it were lawful, no man could endure to live in this country. In * Mr. Burke in his Short Account of a late short Administration, (this administration came into employment under the mediation of the duke of Cumberland, son to George the second, in July 1765, and was removed in July 1766: during its continuance in office the marquis of Rockingham was First Lord of the Treasury, and Mr. Dowdeswell Chancellor of the Exchequer) says, The lawful secrets of business and friendship were rendered inviolable by the Resolution for condemning the seizure of papers.' See New Parl. Hist. vol. 16, p. 207. 6 |