stables are within the letter: and it extends to no others. And he referred to 4 Inst. 175, and the two marginal notes there; one on 7 J. c. 5, and the other, on 21 J. c. 12. Serjeant Hawkins's reasons do not support | his assertion: and I deny that a secretary of state is a conservator of the peace. He has only a power of committing for high treason, as conservators of the peace had in other cases: and Kendal and Roe's case carries it no farther. The Court never meant to resolve any thing further. From all which premisses he argued, that these acts of Jac. 1, are not to be extended be. yond the letter: and if they were, yet there is no reason to extend them to secretaries of state, as not being within the same inconveni All the crown-writers are silent on this subject of a secretary of state's having this juris-ence. diction. None of them even hint that a secretary of state is a conservator of the peace. Staundford, Fitz-Herbert, Lambard, &c. say no such thing. No more reason is there to extend that of If the legislature had so in24 G. 2, c. 44. tended, they would not have confined it to justices of the peace, a species of magistrates well known and understood in our law. So much for the noble lord. Lambard* gives the list of those officers who are conservators of the peace but there is no mention therein, of secretaries of state. Serjeant Hawkinst copies the same list, with-fall within the words or meaning of the act of out adding secretaries of state. There is no proof or pretence that the conservatorship of the peace is incident to their office: nor is there any usage to support such a notion. Their claim of a power to grant such warrants as the present one, is not pretended to be older than the Revolution. 2dly, As to the messengers-They do not 7 J. 1, c. 5, which is confined to officers, who are persons known in our law, and bound to execute the warrant of a justice of peace; an office of burthen, not of profit; aud incapable to distinguish the precise limits of a jurisdiction. There is no respect in the case of the king's messengers in ordinary; who are persons unknown in our law, and mere volunteers iu If they were justices of the peace, or conservators of the peace, they would be bound to execute the powers given to justices, or residing in constables; and they would be sub-executing warrants of justices. ject to the controul of this court. The offices are different in creation, constitution, and execution. The very language of the warrant shews that the secretary of state did not consider himself as a justice, conservator, or constable. This statute is not to be extended beyond the letter of it: it is not within the maxims or reasons of extension of acts of parliament. It is necessary to consider the former statutes of 7 J. 1, c. 5, and 21 J. 1, c. 12. (Both of which he rehearsed and observed upon). In these, there is no mention of secretaries of state; nor is there any reason to add others not there enumerated; the rather, as the enumeration begins with persons inferior to secretaries of state. Neither is there any ground to imagine that the legislature intended to include secretaries of state within their provision. The preamble shews rather the contrary. The line drawn between those enumerated and those omitted, shews the same thing. The persons intended to be protected, are persons bound to act, and acting for the public good, without reward; not great officers with great salaries, who are not lawyers and are not bound to act. The persons introduced by the second act (church-wardens, sworn-men, overseers, &c.) are persons within the mischief of the former: yet even they were not virtually included in the former, and are therefore particularly named in the latter. This latter explanatory act omits, nevertheless, to name secretaries of state. *V. Lib. 1, c. 3. But con The words, other officers, &c.' mean borsholders, &c. officers of the same sort as constables and tithingmen; not king's messengers. These persons cannot be considered as aiding and assisting the constables. The warrant and the fact are quite the reverse: the constables are directed to assist them. They do not act under the command of a justice of peace, or in his assistance. This warrant is not under the hand and seal of a justice of peace. Therefore the act does not protect the defendants. 3dly, Nor is the act done in obedience to this warrant. The warrant was to apprehend the author, printer, or publisher:' but they have executed it upon a person who was not the author, printer, or publisher. Consequently, as they have not acted under it, they can't be protected by it. It is said, 'that a description is equivalent to naming the persons; and that here is a sufficient description.' But the description of an offence is no description of the person offending: and this is only a description of the offence. The obedience to the warrant is the condi-. tion of the protection which the act gives to Therefore, the condition failing, the officer. the protection does not take place. Here is no probable cause, nor any reason for justifying the officer under a probable cause. It is not like the cases of apprehending traitors or felons. Here is only information from one of their own body, that the author of the paper had been seen going into Leach's house; and that Leach was the printer of the composition in general;' not of this particular paper. But though neither this hearsay-information was in itself true; nor would the consequence, the robber or murderer of such a one.' This follow, if it had been true; yet they thereupon is no description of the person; but only of the arrest and imprison an innocent man. There- offence: it is making the officer to be judge of fore these men themselves are to answer for the matter, in the place of the person who doing this: not the person who issued the war issues the warrant. Such a power would be rant. The warrant did not command nor au- extremely mischievous, and might be producthorize them to do what they have done. It is tive of great oppression. necessary for them to shew an acting in obedience to the warrant; otherwise they are not within the protection of the act. In proof of which he cited two cases; one by the name of Lawson [qu. or Dawson] v. Clark; and the other a Norwich case, where a bailiff had executed the warrant out of the proper jurisdiction. To ransack private studies in order to search for evidence, and even without a previous charge on oath, is contrary to natural justice, as well as to the liberty of the subject: and it is as useless as it is cruel, in the case of libels; because it is the publication only that makes the crime of a libel. To search a man's private papers ad libitum, and even without accusation, is an infringement of the natural rights of mankind. And this is a warrant, to seize all a man's papers,' without any particular relation even to the crime they would suppose him chargeable Upon these authorities, upon the reason of the thing, and upon the words of the act, the officer is not entitled to the protection of the act; nor needs the justice be made a party, but where the officer acts in obedience to the warrant: acting under colour of it only, is not suf-with.* ficient. No case of this sort has ever undergone juBesides, the party apprehended was not car-dicial discussion and determination. And as ried before lord Halifax, or dealt with accord- the Court does not interpose in cases not obing to law. Surely, this was the act of the jected to, no arguments can be drawn from officer; not of the person who signed the war- such as passed sub silentio, or were never ob. rant. And no reason is given, stated, pretended, jected to. or even existed, why this matter was so transacted. Therefore there was no probable cause or reason whereupon to ground a justification of this their conduct. So that, even allowing the secretary of state to be a justice of peace, and the officers to be constables; yet the action lies against the plaintiffs in error, who have acted in this unjustifiable manner. It appears therefore, that even if they had a defence upon the merits, they have not properly pleaded it. However, in fact they had no defence upon the merits: the plaintiff Leach was neither author, printer, nor publisher of the paper; nor at all within the description of the warrant. But the warrant itself is illegal. It is against the author, printer, and publisher of the paper, generally, without naming or describing them; and not founded on any charge upon oath it is also, to seize his papers; that is, all his papers. : No justice of peace has power to issue such a warrant. Therefore lord Halifax could not do it as a justice of peace. Nor is there any pretence of usage to support such a claim of doing it as secretary of state, further back than the Revolution. It lies upon them, to prove their claim, and to shew their authority. The practice of a particular magistrate cannot controul the law. Communis error is not, in this case, sufficient to make law. It is the duty, and it is therefore, doubtless, the inclination of the Court, to stop the mischief, as soon as it is complained of to them. If author, printer, and publisher,' without naming any particular person, be sufficient in such a warrant as this is; it would be equally so, to issue a warrant generally, to take up All the writers upon the crown law say, 'that there must be an accusation; that the person to be apprehended must be named; and that the officer is not to be left to arrest whom he thinks fit.' For which, he vouched Hale's Hist. P. C. 1st part, p. 580 and 586, and Hawkins's P. C. book 2, c. 13, § 10, p. 81, and 82. Here, it is left to the officer, to take up any person whom he himself suspects. Lord chief justice Scroggs was impeached for issuing such warrants as this is. Therefore he prayed judgment for the defendant in error. Mr. Solicitor General De Grey, in reply, on behalf of the plaintiff's in error. A secretary of state is an officer by prescription; and his office must be as ancient as the office of the person to whom he is secretary : for he is and always has been au officer necessary to the crown; and the constitution always required the support of this office. And as this power to commit for treason depends upon prescriptive right and the nature of his office; so likewise it does, in all cases of preserving the public peace. In the case of Kendal and Roe, the power, in treason, was acknowledged. In Darby's case, it was recognized, in felony. In Earbury's case, (where the warrant was general, as this is,) he was continued on his recognizance. A secretary of state has these powers, upon the foundation of prescription; not on our law-books: and he has, equally, the power in him; whether he does or does not exert it in low and common instances. I suppose he is as compellable to act, as a conservator of the * See the Case of Entick v. Carrington, immediately following the present. 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 be could. 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. Lord Mansfield—I 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. 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 exa In Vaughan 111, Stiles v. Sir Richard Coxe and others, it was determined, that the de-mined, and dealt with according to law:" and fendants 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. 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. VOL. XIX. hend, under general warrants; as in the case 3 U 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 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 usitatu 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 nsage; 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 Aston, 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. so, 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. Where the justice cannot be liable, the of ficer is not within the protection of the act. 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 Court was, that the judgment be affirmed.'— JUDGMENT AFFIRMED. [Thus this Case went off, without any judi. cial 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; fence under high treason; whether a single whether he has power to commit for any ofprivy 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 plaintiffs 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 port them. How such warrants and the seizure of papers in the case of seditious libels were both finally condemned 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 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 broke the locks thereto affixed, and searched and examined all the rooms, &c. in his dwelling-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 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 cation under the secretary a warrant of of state. The defendants plead 1st, not guilty to the whole declaration, whereupon issue is joined. 2dly, as to the breaking and entering the dwelling-house, and continuing four hours, 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 papers, books, &c. of the plaintiff there found, and taking and carrying away the goods and 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 |