peace formerly was, before the acts of parliament which give power to justices of peace. Charter-justices can scarce be called commission-justices: and yet these statutes extend to them. A 'justice of the peace' means a conservator, a warden of the peace. Therefore there was no need to name secretaries of state, in the acts of parliament: they were included, without naming them particularly. The marginal note in lord Coke is no authority. However, these officers are named in the text, and certain others his majesty's officers.' This action is brought for what was done in obedience to the warrant; which the officer was obliged to execute, in the best manner he could. Lord Mansfield-1 suppose, this is intended to be argued again. However, I will say something, at present, upon it. A bill of exceptions supposes the evidence true; and questions the competency or propriety of it. Whether there was a probable cause or ground of suspicion,' was a matter for the jury to determine that is not now before the Court. So whether the defendants detained the plaintiff an unreasonable time.' But if it had been found to have been a reasonable time; yet it would be no justification to the defendants; because it is stated, that this man was neither author, printer, or publisher:' and if he was not, then they have taken up a man who was not the subject of the warrant. If there is any fault, it is in the magistrate: he should have described the offender with" greater certainty. If the executing officer acts to the best of his ability; he is justified, and acts in obedience to his warrant. Here the officers did so they were reasonably satisfied, that Leach was the printer.' And on search, this probable cause was encreased to a higher degree: for, they found another fresh sheet of the same work, just printed off, and wet. They detained him on occasion of his being to be carried before lord Halifax, to be examined. The officers have nothing to do with his examination: that was the affair of lord Halifax; and if he discharged the persons apprehended and brought before him, without examination, it was the better for them, In Vaughan 111, Stiles v. Sir Richard Coxe and others, it was determined, that the defendants should have the benefit of the act; because they acted by colour of the warrant. As to the warrant itself-it is objected, 'that there is no charge upon oath.' But there was no occasion, he said, for it: and to that purpose, he cited the Queen . Darby [v. Fortescue 141.] Rex v. Earbury, Mich. 7 G. 2, and 1 Hale P. C. 582, where it is laid down, that "it is convenient, though not always necessary, to take an information upon oath of the person that desires the warrant." It is objected, that this warrant is not authorized by any length of usage.' But the usage, as here stated, is sufficient: and it must be taken to be coeval with the office. The bill of exceptions indeed only takes it up from the Revolution; asserting that it has been so ever since that time: but the facts go up to the Restoration; and none of a different form were produced, prior to the Revolution. As to seizing papers-it is difficult indeed to draw the exact line. But it is certainly necessary, in some degree: and no instance is produced, of such warrants having ever been abused as instruments of oppression. The three material Questions are-1st, Whether a secretary of state acting as a conservator of the peace by the common law, is to be construed within the statutes of James the first, and of the last king." The protection of the officers, if they have acted in obedience to the warrant, is consequential, in case a secretary of state is within these statutes. As to the arrest being made in obedience to the warrant, or only under colour of it and without authority from it-this question depends upon the construction of the warrant; whether it must not be construed to mean such persons as are under a violent suspicion of being guilty of the charge;' (for they cannot be conclusively considered as guilty, till after trial and conviction.) The warrant itself imports only suspicion; for, it says,-" to be brought before me, and examined, and dealt with according to law:" and this suspicion must eventually depend upon future trial. Therefore the warrant does not seem to me, to mean conclusive guilt; but only violent suspicion. If the person apprehended should be tried and acquitted, it would shew that he was not guilty; yet there might be sufficient cause of suspicion. Mr. Dunning says, very rightly, that, 'to bring a person within 24 G. 2, the act must be done in obedience to the warrant.' The last point is, whether this general warrant be good.' One part of it may be laid out of the case: for, as to what relates to the seizing his papers, fore it is out of the case. that part of it was never executed; and there the warrant be good or bad;' except in the It is not material to determine, whether event of the case being within 7 J. 1, but not within 24 G. 2. At present-as to the validity of the warrant, upon the single objection of the incertainty of the person, being neither named nor described the common law, in many cases, gives authority to arrest without warrant; more especially, where taken in the very act: and there are many cases where particular acts He concluded, upon the whole, that the of parliament have given authority to appreplaintiff had no right to bring his action. hend, under general warrants; as in the case 3 U VOL. XIX. in the present case,' was too great a difficulty for him to encounter; and therefore rested the matter where it was, without proceeding any further in his argument. Lord Mansfield remembered both these Cases; and said, He still continued of the same opinion. Therefore it must stand upon principles of common law. Where the justice cannot be liable, the ofIt is not fit, that the receiving or judging officer is not within the protection of the act. the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer. This is so, upon reason and convenience. Then as to authorities-Hale and all others hold such an uncertain warrant void: and there is no case or book to the contrary. It is said, that the usage has been so; and that many such have been issued, since the Revolution, down to this time.' But a usage, to grow into law, ought to be a general usage, communiter usitata et approbata; and which, after a long continuance, it would be mischievous to overturn. This is only the usage of a particular office, and contrary to the usage of all other justices and conservators of the peace. There is the less reason for regarding this usage; because the form of the warrant probably took its rise from a positive statute; and the former precedents were inadvertently followed, after that law was expired. Mr. Justice Wilmot declared, that he had no doubt, nor ever had, upon these warrants: he thought them illegal and void. doubt Neither had the two other judges, Mr. Justice Yates, and Mr. Justice Aston, any (upon this first argument) of the illegality of them: for no degree of antiquity can give sanction to a usage bad in itself. And they esteemed this usage to be so. They were clear and unanimous in opinion, that this warrant was illegal and bad. The case in Middlesex concludes exactly to the present case. For, here the warrant is to take up the author, printer, or publisher; but they took up a person who was neither author, printer, nor publisher: so, that case was a warrant to take up a disorderly woman;' and the defendant took up a woman who was not so.* And he held the same opinion now, he said, as he did before, in the case at Norwich. This makes an end of the case: for, this is a previous question; and the foundation of the defence fails. The consequence is, that the judgment must be affirmed. The other judges assenting, the rule of the [Thus this Case went off, without any judicial decision on any of the chief points which were raised in it. The only point professed to be regularly adjudged was, That the warrant in question had not been pursued. Whether a secretary of state is a conservator of the peace ex-officio, and as such within the equity of the statutes in favour of justices of the peace; whether he has power to commit for any of fence under high treason; whether a single privy counsellor has a right to commit in any case; whether a warrant for the seizure of papers could not be justified in the case of a seditious libel; and whether a general warrant, neither naming the offender, nor other Lord Mansfield-Let it stand over for further wise describing him, except by relation to the argument. The Case standing in the paper, on Friday the 8th of November, 1765, for farther argu ment offence committed, could be maintained at common law; all these important questions were left unadjudged. However, enough was said by the Court on the last of them to evince, that all the four judges thought general warMr. Yorke, attorney-general, was now to rants to seize the person universally illegal, exhave argued on behalf of the plaintiff's in error; cept where the granting of them was specially and begun to enter into his argument: but authorized by act of parliament; and from the when he came to mention the two cases cited attorney-general's readiness in yielding another by Mr. Dunning, both of which were deter-point to avoid a decision of that concerning the mined before lord Mansfield, upon 24 G. 2, legality of general warrants, it may be conc. 44, one of them at Norwich, summer as-jectured, that he despaired of being able to supsizes, 1761; (where damages were given); the other of them,* on a warrant under the Vagrant Act of 17 G. 2, (where his lordship held, that the defendant ought to shew that the officer had acted in obedience to the warrant; and he did so ;) he seemed to intimate that this objection of their not having done * Dawson or Lawson, v. Clarke, v. ante, p. 1023. port them. How such warrants and the seizure of papers in the case of seditious libels were both finally condemued by a declaratory Resolution of the House of Commons, will be explained in a note at the end of the Case on the Seizure of Papers, which is the next in this Collection. Hargrave.] * See Leach's Hawkins's Pleas of the Crown, b. 2, c. 13, s. 31. 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 6 GEORGE III. a. D. 1765. Common-Pleas, Mich. Term: [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 fivel, 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 à judicial opinion from the Court. Trespass for entering plainti'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 breaking and 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 the plaintiff became wrongfully discovered and there found, whereby the secret affairs, &c. of made public; and took and carried away 100 printed charts, 100 printed pamphlets, &c. &c. of the plaintiff there found, and other 100 charts, &c. &c. took and carried away, to the damage of the plaintiff 2,000l. 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 immediately obtained, with liberty to the Editor to make use of it at his discretion. Before, however, he presumed to consult his own wishes in the use, the Editor took care to convince himself, both that the copy was authentic, and that the introduction of it into 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 justi a warrant of the secretary of state. The defendants plead 1st, not guilty to the whole declaration, fication under whereupon issue is joined. 2dly, dwelling-house, and continuing four hours, as to the breaking and entering the and all that time disturbing him in the possession thereof, and breaking open the doors chests, drawers, &c. of the plaintiff in his to the rooms, and breaking open the boxes, the rooms, &c. in his dwelling-house, and all the boxes, &c. so broke open, and reading over, prying into, and examining the private and taking and carrying away the goods and papers, books, &c. of the plaintiff there found, chattels in the declaration first mentioned there found, 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 bis 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 neces sary 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 su 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 c 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 possession 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 at the time of making the following information, and before and until and at the time of granting the warrant hereafter mentioned, and from thence hitherto, the earl of Halifax was, and still is one of the lords of the king's privy council, and one of his principal secretaries of state, and that before the time in the declaration, viz. on the 11th of October 1762, at St. James's Westminster, one Jonathan Scott of London, bookseller and publisher, came before Edward Weston, esq. an assistant to the said earl, and a justice of peace for the city and liberty of Westminster, and there made and gave information in writing to and before the said Edward Weston against the said John Entick and others, the tenor of which information now produced and given in evidence to the jurors followeth in these words and figures, to Scott's information before a justice of peace. wit, The voluntary information ' of J. Scott. In the year 1755, I proposed setting up a paper, and ' mentioned it to Dr. Shebbeare, and in a few days one Arthur Beardmore an attorney at law sent for me, hearing of my intention, and ' desired I would mention it to Dr. Shebbeare, that he Beardmore and some others of his friends had an intention of setting up a paper in the city. Shebbeare met Beardmore, and myself and Entick (the plaintiff) at the Horn tavern, and agreed upon the setting up the paper by the name of the Monitor, and that 'Dr. Shebbeare and Mr. Entick should have 2007, a year each. Dr. Shebbeare put into Beardmore's and Entick's hands some papers, 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, 1 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.' of state's warrant to seize plaintiff and his books and papers, the king's messengers, and duly sworn to that delivered to the defen- without a constable, The above information was given voluntari-papers in several rooms and in the house, and ly before me, and signed in my presence by ⚫ Jona. Scott. J. WESTON.' "And the jurors further say, that on the 6th of November 1762, the said information was shewn to the earl of H. and thereupon the earl did then make and issue his warrant directed to the defendants, then and still being in one bureau, one writing desk, and several drawers of the plaintiff there in order to find and seize the same, and bring them along with the plaintiff before the earl according to the warrant, and did then find and seize there some of the books and papers of the plaintiff, and perused and read over several other of his papers which they found in the house, and chose to read, |