VI

A motion was made, and the Question being proposed, That a General Warrant for seizing and apprehending any Person or Persons being illegal, is, if executed upon a member of this House, a Breach of the Privilege of this House. . . . An Amendment was proposed to be made to the Question, by inserting, after the word "illegal," these words, "except in cases provided for by Act of Parliament." And the said Amendment was, upon the Question put thereupon, agreed to by the House. . . . Then the main Question, so amended, being put;

Resolved, That a General Warrant for seizing and apprehending any Person or Persons being illegal, except in cases provided for by Act of Parliament, is, if executed upon a member of this House, a breach of the Privilege of this House.

(C.J. April 25, 1766, xxx. 771. On April 29, leave was refused to bring in a Bill founded on this Resolution; though a Bill to restrain the issuing of General Warrants in certain cases was finally read a third time, May 14. But it was rejected by the House of Lords. See Parlt. Hist. xvi. 210.)

VII

LORD MANSFIELD'S OPINION

That, in his opinion, declarations of the law made by either House of Parliament were always attended with bad effects; he had constantly opposed them whenever he had an opportunity, and in his judicial capacity thought himself bound never to pay the least regard to them.1 That, although thoroughly convinced of the illegality of general warrants, which indeed naming no persons, were no warrants at all, he was sorry to see the House of Commons by their vote declare them to be illegal. That it looked like a legislative act, which yet had no force nor effect as law: for, supposing the House had declared them to be legal, the courts in Westminster would nevertheless have been bound to declare the contrary; and consequently to throw a disrespect on the vote of the House: but he made a wide distinction between general declarations of law, and the particular decision which might be made by either House, in their judicial capacity, on a case coming regularly before them, and properly the subject of their jurisdiction. That here they did not

1 Sir Fletcher Norton, attorney-general, had said in debate that "he should regard a resolution of the members of the House of Commons no more than the oaths of so many drunken porters in Covent Garden."

act as legislators, . . . but as judges, drawing the law from the several sources from which it ought to be drawn, for their own guidance in deciding the particular question before them, and applying it strictly to the decision of that question. That, for his own part, wherever the statute law was silent, he knew not where to look for the law of parliament, or for a definition of the privileges of either House, except in the proceedings and decisions of each House respectively. That he knew of no parliamentary code to judge of questions depending on the judicial authority of parliament, but the practice of each House, moderated or extended according to the wisdom of the House, and accommodated to the cases before them. (Lord Mansfield, in the House of Lords, Parlt. Hist. xvi. 653.)

XV

LEACH v. THREE OF THE KING'S MESSENGERS 6 George III., 1765.

[This was a case which arose out of the action of the Secretary of State against Wilkes, and the publishers and printers of No. 45 of The North Briton. Dryden Leach sued John Money, James Watson, and Robert Blackmore, three of the King's Messengers, for false imprisonment and trespass. Under the General Warrant issued by Lord Halifax, Leach had been apprehended on the ground that he was concerned in printing and publishing No. 45. He was released after four days, when it was clear that he was not the printer, and he then sued the Messengers for damages. The case was tried before Lord Chief Justice Pratt on December 10, 1763, and the jury found for the plaintiff with £400 damages. The case was argued before Lord Mansfield in the Court of King's Bench on June 18 and November 8, 1765, on a bill of exception, the King's Messengers asking on the ground of error that the judgment in the former trial should be reversed. The excerpt is from Lord Mansfield's judgment, and was in favour of Leach on the technical point that the warrant had not been "pursued." The important question as to the legality of general warrants was only indirectly dealt with and not formally decided in this case. Authorities as in Wilkes v. Lord Halifax.]

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 itthis 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 imparts 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, that part of it was never executed; and therefore it is out of the case.

It is not material to determine, 'whether the warrant be good or bad'; except in the 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 uncertainty 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 of parliament have given authority to apprehend, under general warrants; as in the case of writs of assistance, or warrants to take up loose, idle, and disorderly people. But here, it is not contended, that the common law gave the officer authority to apprehend; nor that there is any act of parliament which warrants this case.

Therefore it must stand upon principles of common law.

It is not fit, that the receiving or judging of 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 hath been so; and that many such have been issued, since the Revolution, down to this time.'

But a usage, to grow into a 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.

Neither had the two other judges, Mr. Justice Yates, and Mr. Justice Ashton, any doubt (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. . . .

[On Nov. 8.] Lord Mansfield . . . continued of the same opinion. When the justice cannot be liable, the officer is not within the protection of the act. . . . 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 . . . the judgment must be affirmed. The other judges assenting, the rule of the court was, 'that the judgments be affirmed.'

(S.T. xix. 1026-1028.)

XVI

ENTICK v. CARRINGTON
6 Geo. III., 1765.

[This was an action of trespass brought by John Entick against Nathan Carrington and three other King's Messengers, who under a general warrant from a secretary of state forcibly entered Entick's house on Nov. 11, 1762, carried away his books and papers on the ground that he was the author of a seditious libel. The jury found a special verdict, which was subsequently twice argued at the bar. Lord Camden, L.C.J., gave judgment for the plaintiff, and the excerpt gives the salient passages of this famous decision, which finally decided the illegality of general warrants. The whole judgment is well worth careful study. Authorities as in Wilkes v. Lord Halifax, and for the constitutional points involved, see especially Dicey, L.C., and Broom, op. cit. Two other cases reported in State Trials, xix., viz. Wilkes v. Wood and Wilkes v. Lord Halifax (1769), in which Wilkes was awarded £4,000 damages, complete the cases which involve the legality of general warrants and the seizure of papers.]

This record hath set up two defences to the action, on both of which the defendants have relied.

The first arises from the facts disclosed in the special verdict; whereby the defendants put their case upon the statute of 24 Geo. 2, insisting that they have nothing to do with the legality of the warrants, but that they ought to have been acquitted as officers within the meaning of that act.

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 officers to shew, that they are officers within the meaning of the Act of parliament, and likewise that they have acted in obedience to the warrant.

The question, whether officers or not, involves another; whether the secretary of state, whose ministers they are, can be deemed a justice of the peace, or taken within the equity of the description; for officers and justices are here co-relative terms: therefore either both must be comprised, or both excluded.

The 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 the 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,