the case of a search-warrant for stolen goods, it is never granted, but upon the strongest evidence that a felony has been committed, and that the goods are secreted in such a house; and it is to seize such goods as were stolen, not all the goods in the house; but if stolen goods are not found there, all who entered with the warrant are trespassers. However frequently these warrants have been granted since the Revolution, that will not make them lawful; for if they were unreasonable or unlawful when first granted, no usage or continuance can make them good. Even customs, which have been used time out of mind, have been often adjudged void, as being unreasonable, contrary to common right, or purely against law, if upon considering their nature and quality they shall be found injurious to a multitude, and prejudicial to the commonwealth, and to have their commencement (for the most part) through the oppression and extortion of lords and great men. Davis 32 b. These warrants are not by custom; they go no farther back than eighty years; and most amazing it is they have never before this time been opposed or controverted, considering the great men that have presided in the King's-bench since that time. But it was reserved for the honour of this Court, which has ever been the protector of the liberty and property of the subject, to demolish this monster of oppression, and to tear into rags this remnant of Star-chamber tyranny.

Counsel for the Defendants. I am not at all alarmed, if this power is established to be in the secretaries of state. It has been used in the best of times, often since the Revolution. I shall argue, first, that the secretary of state has power to grant these warrants; and if I cannot maintain this, I must, secondly, shew that by the statute 24 Geo. 2, c. 24, this action does not lie against the defendants the messengers. 1. A secretary of state has the same power to commit for treason as a justice of peace. Kendall and Roe,* Skin. 596. 1 Salk. 346, S. C. 1 lord Raym. 65. 5 Mod. 78, S. C. Sir William Wyndham was committed by James Stanhope, secretary of state, to the Tower, for high treason the 7th of October, 1715. See the case 1 Stra. 2. And serjeant Hawkins says, it is certain, that the privy council, or any one or two of them, or a secretary of state, may lawfully committ persons for treason, and for other

* See this Case, in vol. 12, p. 1299.

+ With respect to the power of a secretary of state to commit, see the Cases of Wilkes, p. 982, of this volume, and of Leach against Money and others, p. 1002 of this volume.

"If we are to learn from the records in courts of justice, and from the received practice at all times what is the law of the land, I have no difficulty in saying that the secretaries of state | have the right to commit. This right was not even doubted by lord Camden, who expressed as great anxiety for the liberty of the subject as

offences against the state, as in all ages they have done. 2 Hawk. P. C. 117, sect. 4. 1 Leon: 70, 71. Carth. 291. 2 Leon. 175. If it is clear that a secretary of state may commit for trea son and other offences against the state, he certainly may commit for a seditious libel against the government; for there can hardly be a greater offence against the state, except actual treason. A secretary of state is within the Habeas Corpus Act. But a power to commit without a power to issue his warrant to seize the offender and the libel would be nothing; so it must be concluded that he has the same power upon information to issue a warrant to search for and seize a seditious libel, and its author and publisher, as a justice of peace has for granting a warrant to search for stolen goods, upon an information that a theft has been committed, and that the goods are concealed in such a place; in which case the constables and officers assisting him in the search, may break open doors, boxes, &c. to come at such stolen goods. Supposing the practice of granting warrants to search for libels against the state be admitted to be an evil in particular cases, yet to let such libellers escape, who endeavour to raise rebellion, is a greater evil, and may be compared to the reason of Mr. Justice Foster in the Case of Pressing, [Vol. 18, p. 1323,] where he says, That war is a great evil, but it is chosen to avoid a greater. The practice of pressing is one of the mischiefs war brings with it; but it is a maxim in law and good policy too, that all private mischiefs must be borne with patience, for preventing a national calamity, &c.

2. Supposing there is a defect of jurisdiction in the secretary of state, yet the defendants are within the stat. 24 Geo. 2, c. 44, and though not within the words, yet they are within the reason of it. That it is not unusual in acts of parliament to comprehend by construction a generality, where express mention is made only of a particular. The statute of Circumspecie agatis concerning the bishop of Norwich extends to all bishops. Fitz. Prohibition 3, and 2 Inst. on this statute, 25 Edw. 3, c. enables the incumbent to plead in quare impedit, to the king's suit. This also extends to the suits of all persons, 38 E. 3, 31. The act 1 Ric. 2, ordains that the warden of the Fleet shall not permit prisoners in execution to go out of prison by bail or baston, yet it is adjudged that this act extends to all gaolers. Plowd. Com. case of Platt, 35 b. The stat. de donis, conditionalibus extends to all other limitations in tail not there particularly mentioned, and the like construction has been put upon several other

any man; indeed it has been thought by some persons eminent in our possession, who have considered the point since, that be rather overstepped the line of the law in the Case of R. v. Wilkes, and certainly if that judgment can be supported, many other cases that have been solemnly determined, cannot be reconciled with it." Per lord Kenyon, C. J. in the Case of the King against Despard, 7 T, Rep. 742.

statutes. Tho. Jones 62. The stat. 7 Jac. 1, c. 5, the word 'constable' therein extends to a deputy constable. Moor 845. These messengers in ordinary have always been considered as officers of the secretary of state, and a commitment may be to their custody, as in sir W. Wyndham's case. A justice of peace may make a constable pro hac vice to execute a warrant, who would be within the stat. 24 Geo. 2. So if these defendants are not constables, yet as officers they have power to execute a warrant of a justice of peace. A constable may, but cannot be compelled to execute a warrant out of his jurisdiction. Officers acting under colour of office, though doing an illegal act, are within this statute. Vaugh. 113. So that no demand having ever been made of the warrant, nor any action commenced within six months, the plaintiff has no right of action. It was said, that a conservator of the peace had no more power than a constable has now. I answer, they had power to bind over at common law, but a constable has not. Dal. ton, cap. 1.

Counsel for the Plaintiff, in reply. It is said, this has been done in the best of times ever since the Revolution. The conclusion from thence is, that it is the more inexcusable, because done in the best of times, in an æra when the common law (which had been trampled under the foot of arbitrary power) was revived. We do not deny but the secretary of state hath power to commit for treason and other offences against the state; but that is not the present case, which is breaking into the house of a subject, breaking into bis drawers and boxes, ransacking all the rooms in his house, and prying into all his private affairs. But it is said, if the secretary of state has power to commit, he has power to search, &c. as in the case of stolen goods. This is a false consequence, and it might as well be said he has a power to torture. As to stolen goods, if the officers find none, have they a right to take away a man's goods which were not stolen? Pressing is said to be a dangerous power, and yet it has been allowed for the benefit of the state. But that is only the argument and opinion of a single judge, from ancient history and records, in times when the lower part of the subjects were little better than slaves to their lords and great men, and has not been allowed to be lawful without an act of parliament since the time of the Revolution. The stat. | 24 Geo. 2, has been compared to ancient statutes, naming particular persons and districts, which have been construed to extend to many others not named therein; and so the defendants, though no such officers are mentioned, by like reason, are within the statute of 24 Geo. 2. But the law knows no such officers as messengers in ordinary to the king. It is said the Habeas Corpus Act extends to commitments by secretaries of state, though they are not mentioned therein. True, but that statute was made to protect the innocent VOL. XIX,

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against illegal and arbitrary power. It is said, the secretary of state is a justice of peace, and the messengers are his officers. Why then did the warrant direct them to take a constable to their assistance, if they were themselves the proper officers? It seems to admit they were not the proper officers. If a man be made an officer for a special purpose to arrest another, he must shew his authority; and if he refuses, it is not murder to kill him. But a constable or other known officer in the law need not shew his warrant.

Lord Chief Justice. I shall not give any opinion at present, because this case, which is of the utmost consequence to the public, is to be argued again. I shall only just mention a matter which bas slipt the sagacity of the counsel on both sides, that it may be taken notice of upon the next argument. Suppose a warrant which is against law be granted, such as no justice of peace, or other magistrate high or low whomsoever, has power to issue, whether that magistrate or justice who grants such warrant, or the officer who executes it, is within the stat. 24 Geo. 2, c. 44. To put one case (among an hundred that might happen): suppose a justice of peace issues a warrant to search a house for stolen goods, and directs it to four of his servants, who search and find no stolen goods, but seize all the books and papers of the owners of the house, whether in such a case would the justice of peace, his officers or servants, be within the stat. 24 Geo. 2.? I desire that every point of this case may be argued to the bottom, for I shall think myself bound, when I come to give judgment, to give my opinion upon every point in the case.

Mich. 6 Geo. 3.

Counsel for the Plaintiff on the second argument. If the secretary of state, or a privy counsellor, justice of peace, or other magistrate whatever, have no legal power to grant the warrant in the present case, it will follow, that the magistrate usurping such an illegal power, can never be construed to be within the meaning or reason of the statute of 24 Geo. 2, c. 44, which was made to protect justices of the peace, &c. where they made blunders, or erred in judgment in cases within their jurisdiction, and not to give them arbitrary power to issue warrants totally illegal from beginning to end, and in cases wherein they had no jurisdiction at all. If any such power in a secretary of state, or a privy counsellor, had ever existed, it would appear from our law-books. All the ancient books are silent on this head. Lambert never once mentions a secretary of state. Neither he nor a privy counsellor, were ever considered as magistrates. In all the arguments touching the Star-Chamber, and Petition of Right, nothing of this power was ever dreamt of. State-commitments anciently were either per mandatum regis in person, or by warrant of several of the privy counsellors in the plural number. The king has this 3 X

The second defence stands upon the legality of the warrants; for this being a justification at common law, the officer is answerable if the magistrate has no jurisdiction.

These two defences have drawn several points into question, upon which the public, as well as the parties, have a right to our opinion. Under the first, it is incumbent upon the of ficers to shew, that they are officers within the meaning of the act of parliament, and likewise that they have acted in obedience to the war

rant.

their good behaviour, which no other couservator 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.

This question leads me to an inquiry into the authority of that minister, as he stands described upon the record in two capacities, viz. secretary of state and privy counsellor. And since no statute has conferred any such jurisdiction as this before us, it must be given, if it does really exist, by the common law; and upon this ground he has been treated as a conservator of the peace.

The matter thus opened, the questions that naturally arise upon the special verdict, are; First, whether in either of these characters, or upon any other foundation, he is a conservator of the peace.

Secondly, admitting him to be so, whether he is within the equity of the 24th Geo. 2. These points being disposed of, the next in order is, whether the defendants have acted in obedience to the warrant.

In the last place, the great question upon the justification will be, whether the warrant to seize and carry away the plaintiff's papers is lawful.

FIRST QUESTION.

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

If he is 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. His power is so extensive in place, that it spreads throughout the whole realm; yet in the object it is so confined, that except in libels and some few state crimes, as they are called, the secretary of state does not pretend to the authority of a constable.

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 sure. ties. 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

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 er

roneous.

And yet, though the enquiry I am now upon cannot be attended with any consequence to the public, it is nevertheless indispensable; for I shall trace the power to its origin, in order to determine whether the person is within the equity of the 24th Geo. 2.

Before I argue upon that point, or even state the question, whether the secretary of state be within that act, we must know what he is. This is no very agreeable task, since it may possibly tend to create, in some minds, a doubt upon a practice that has been quietly submitted to, and which is of no moment to the liberty of the subject; for so long as the proceedings under these warrants are properly regulated by law, the public is very little concerned in the choice of that person by whom they are issued.

To proceed then upon the First Question, and to consider this person in the capacity of a secretary of state.

This officer is in truth the king's private secretary. He is keeper of the signet and seal used for the king's private letters, and backs the sign manual in transmitting grants to the privy seal. This seal is taken notice of in the Articuli super Chartas, cap. 6, and my lord Coke in his comment (2 Inst. 556,) upon that chapter, p. 556, describes the secretary as I have mentioned. He says he has four clerks, that sit at his board; and that the law in some cases takes notice of the signet; for a ne exeat regno may be by commandment under the privy seal, or under the signet; and in this case the subject ought to take notice of it; for it is but a signification of the king's commandment. If at the time my lord Coke wrote his 3d Institute he had been acquainted with the authority that is now ascribed to the secretary, he would certainly have mentioned it in this