Resistance to Torpor

When​ the Earl of Bute resigned as prime minister in April 1763 it looked as if the North Briton, a paper whose vituperative attacks had dogged his administration, had achieved its ambition and would now cease publication. But a week later George III opened the new Parliament with a speech from the throne which, by its support for the peace terms being negotiated with France, reignited the wrath of the North Briton’s flamboyant co-editor John Wilkes and his backers in the City, prompting the publication of another withering issue, number 45. The new prime minister, George Grenville, and his secretary of state, Lord Halifax, decided it was time to put a stop to this constant assault on government policy. Advised by the Treasury solicitor that number 45 constituted a seditious libel, Halifax signed a warrant authorising the King’s Messengers to arrest – without naming anyone – the ‘authors, printers and publishers’ of the paper. The messengers made more than forty arrests and ransacked a series of offices and homes, helping themselves liberally to private papers.

Searches for unlicensed and seditious publications had been authorised by the 1662 Licensing Act, with a concomitant power of arrest for possessing them; but despite Parliament’s refusal in 1695 to renew the act, ministers had not only continued to issue warrants authorising officials to trawl for evidence but were now authorising the arrest of individuals for interrogation. In more than one case, the courts had upheld the entitlement of the Crown’s ministers, as conservators of the peace, to issue search and arrest warrants for crimes against the state. For these purposes, general warrants, which didn’t identify suspects, had proved too useful to be abandoned in spite of long-standing suggestions that they were illegal. So the North Briton raids looked very much like business as usual, and the government and its lawyers were taken by surprise when the raids provoked an avalanche of successful lawsuits, brought not only by the authors and publishers but by the jobbing printers whom the warrants were in large part designed to intimidate.

By July 1763 (litigation in those days could be brisk), 14 printers whose shops had been raided had been awarded almost £3000 by juries in damages for trespass, assault and false imprisonment. The government’s attempt to challenge an award of £300 to the printer William Huckle gave the Court of Common Pleas an opportunity to point out that treating him ‘very civilly’, with ‘beefsteaks and beer’, had not diminished the gravity of the state’s ‘exercising arbitrary power, violating Magna Carta, and attempting to destroy the liberty of the subject’. The judges, manifestly, were not siding with the government any more than jurors were. In December 1763, Wilkes himself was awarded £1000 against the undersecretary of state, Robert Wood, for trespass to his house and papers; and much later, in 1769, he secured judgment for four times that sum against Lord Halifax personally for trespass and false imprisonment. In neither case did the defendant’s counsel try to argue that office as a minister of the crown carried any immunity from civil liability, and the chief justice, Lord Wilmot, told the jury: ‘The law makes no difference between great and petty officers. Thank God, they are all amenable to justice, and the law will reach them if they step over the boundaries which the law has prescribed.’

When the government’s lawyers took the question of general warrants to the King’s Bench, where Lord Mansfield, a former attorney general, was expected to be more helpful than Camden, they were again rebuffed. ‘It is not fit,’ Mansfield ruled, ‘that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge.’ None of this saved Wilkes and two of his printers from conviction in Mansfield’s court for publishing a seditious libel. What the judges had become concerned about was not the suppression of dissent but its investigation by methods of such arbitrariness that no one was safe.

John Entick was one of the editors of the Monitor, another outspoken opposition paper, which had been raided in November 1762, before the more sensational raids on the North Briton. The warrants named him and his co-editor, the lawyer Arthur Beardmore, and so did not fall foul of the objection to general warrants, but they had been issued, like the North Briton warrant, by a minister not a magistrate, and they authorised the seizure not only of any incriminating material but of all the suspects’ books and papers. Entick and his printers bided their time at first, but as the North Briton ninepins started to go down they issued writs against the messengers and Halifax for trespass. The jury decided, among other things, that one element of the state’s trespass was its invasion of Entick’s privacy by searching his house and ‘reading over and examining several of his papers’. The other legal issues arising from its verdict came to trial in 1765 in the Court of Common Pleas before Lord Camden, who had decided to bring the multiple questions of state power together in a comprehensive judgment. Its 250th anniversary, which fell last year, prompted the conference out of which this book comes.

Entick v. Carrington (Nathan Carrington was one of the messengers who carried out the raid), allied with the other cases, established or confirmed at least four things of lasting importance. One was that ministers of the Crown had no authority to issue search or arrest warrants: with the possible exception of high treason, the prosecution of crime was a judicial not an executive function. A second was that general warrants were illegal: warrants had to specify who was to be arrested and the subject and object of the search, enabling the lawfulness of searches and arrests to be judicially determined. A third was that ministers were answerable to the courts for the legality of their acts: there was no refuge in high office. A fourth was that the common law does not recognise state necessity as a defence to wrongdoing. A knock-on effect, arguably the most radical if the least direct, was to inhibit the use of political power to suppress dissent – a message taken up in 1789 by the US Bill of Rights (and thereafter repeatedly honoured in the breach) and in 1948 by the Universal Declaration of Human Rights.

The most challenging essay in the book is Tom Hickman’s interrogation of Lord Camden’s reasoning, especially on the claimed power of ministers to issue arrest and search warrants. The problem, as Camden himself recognised, was that there was solid authority – four false imprisonment cases decided by the King’s Bench between 1696 and 1733 – either holding or assuming that secretaries of state, as privy counsellors, were conservators of the king’s peace and so possessed powers that included search and arrest. Holdsworth, in his History of English Law, argued that Camden had exposed the shaky foundations of these decisions and had made a solid case for not following them. Hickman is not convinced. He quotes the judgment:

There has been not only a clear practice of [issuing ministerial warrants], at least since the Revolution, confirmed by a variety of precedents; but the authority has been recognised 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 erroneous.

Taking this at face value, he suggests that Camden’s own contrary views were obiter dicta – that is to say, unnecessary to his decision and so of no legal force – because there was actually no claim in Entick’s case for false imprisonment. The problem with this is that Camden manifestly thought otherwise, for the heart of his judgment is his scholarly demonstration that since 1689 the monarch’s ministers had ‘assumed’ a power of arrest – ‘I know not how’ – as part of the royal authority with which their offices invested them. Camden manifestly was not prepared to follow what he regarded as illiberal and dangerous precedents founded on this historically unsupported assumption.

Camden’s refusal to follow precedent was not simple judicial bloody-mindedness. The court was sitting, as it generally did, en banc, meaning that Camden had to carry the three other judges with him: hence, very probably, his obeisances to the earlier cases. But in the mid-18th century the doctrine of precedent was still developing. The axiom that like cases should be decided alike bound lower courts to follow appellate courts, as it still does; but the two principal first-instance courts of common law, the Common Pleas, where Camden presided, and the King’s Bench, where Mansfield presided, were courts of co-ordinate jurisdiction. Even today, judges of first instance are not bound to follow one another’s decisions if they are satisfied that these are wrong. In the 18th century, as Carleton Allen wrote in Law in the Making, ‘the pattern was far more confused … and it was by no means easy to say that decisions were “binding” solely by reason of the source from which they emanated.’ Camden’s court might be ‘bound by’ the earlier cases in the sense that it could not overrule them, but if they were based on false constitutional premises he was not obliged to follow them.

In this, Camden has been vindicated by history. During the two centuries that followed, the principle that ministerial power is distinct from judicial power and must be exercised in conformity with law, although it came periodically under pressure, faced few direct challenges. Probably the most notorious was the wartime case of Liversidge v. Anderson, when all but one of the law lords abandoned any pretence of supervising executive action and held that ‘reasonable cause’ to suspect an individual of enemy associations meant any cause that seemed reasonable to the home secretary. The failure of the antique dealer James Malone in 1979 to obtain redress in the English courts for the police’s tapping of his phone without legal authority was held in Strasbourg to be incompatible with the European Convention on Human Rights. It was not until the 1990s that a frontal challenge to the principle of legality was offered. Kenneth Baker, the home secretary, in breach of an undertaking given to the High Court, deported a Zairean asylum seeker and then ignored a court order to bring him back. On appeal to the House of Lords, an application on the asylum seeker’s behalf to have Baker penalised for contempt of court succeeded. Rejecting the argument of counsel for the Crown that the courts had no power to make or enforce orders against the monarch’s ministers, Lord Templeman said: ‘The proposition that the executive obey the law as a matter of grace and not as a matter of necessity … would reverse the result of the Civil War.’ The judgment was hailed by the doyen of public lawyers, Sir William Wade, as the most important decision of our courts for more than two hundred years – that is since Entick v. Carrington. Yet Entick v. Carrington is not mentioned in the House of Lords’ judgment. Nor is it much mentioned in the body of Scots law that Tom Mullen’s chapter in this volume surveys. Nor do you find more than a fleeting mention of it, as Adam Tomkins points out in his chapter, in Dicey’s revered work on the rule of law. It is only in modern commentaries (and even then not in Tom Bingham’s now classic writings) that the case has come to enjoy a foundational status as the source of what is sometimes known as the principle of legality.

It was with the publication in 1938 of the volume of Holdsworth’s History covering the 18th century that the near silence about Entick v. Carrington was broken. Where Plucknett’s Concise History of the Common Law and Denning’s celebrated edition of Smith’s Leading Cases, both published in 1929, ignored the case, Holdsworth a decade later gave it pride of place. He quoted Lord Camden: ‘With respect to the argument from state necessity … the common law does not understand that kind of reasoning, nor do our books take notice of such distinctions.’ This statement, he commented, ‘embodies the traditional attitude of the common law to the executive’. Traditional it may have been, but by Holdsworth’s day the judges had fallen into a complaisant doze in relation to the state’s powers, repeatedly deferring to a civil service now led by a mandarin class drawn largely from the same schools, universities and clubs as the judges themselves. The elevation of Entick v. Carrington to iconic status – Holdsworth put it on a par with the abolition of Star Chamber and the institutionalisation of habeas corpus – can be seen as one of the first stirrings of resistance to this torpor. Such are the ways in which law manufactures its own history.

But the making of history passes largely out of courts’ hands when Parliament steps in. The lacuna in authority to tap Malone’s phone was rapidly filled by the 1985 Interception of Communications Act, and ministers are now authorised by much wider-ranging legislation to issue interception and surveillance warrants for national security, crime prevention and economic purposes. Lord Halifax would no longer have any concerns on this score; he might even welcome the current proposal to co-opt the judiciary by giving them oversight of ministerial anti-terrorism warrants. But he would still have no power to authorise arrests or bring charges and his status or a plea of state necessity would not shield him from proceedings for wrongs committed in office. To this extent, at least, we are still living in the age of Entick v. Carrington. We are also grimly contemplating Lord Camden’s parting observation: ‘Tyranny is better than anarchy, and the worst government better than none at all.’