Entick v Carrington (The Case of Seizure of Papers) (1765) 19 St Tr 1029

Key points

  • The state may do nothing unless permitted by the law as defined in statute by Parliament and common law by the Courts

Facts

  • In 1762, chief messenger Nathan Carrington and three other men broke into John Entick’s house, causing significant damage and seizing numerous items
  • They were on the orders of the Earl of Halifax, a Secretary of State, to search for seditious papers allegedly written by Entick
  • Entick sued for trespass

Held (Court of the King’s Bench)

  • Held in Entick’s favour – despite the warrant of the Secretary of State, the otherwise unlawful action could not be rendered lawful

Lord Camden

  • “If it is law, it will be found in our books. If it is not to be found there, it is not law.”
  • The action was justified by no legal authority – neither statute nor precedent, nor principle
  • He rejected the argument that the warrants were lawful simply because there had been no prior legal challenge
  • Broadly, the State may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law
  • His reasoning cited John Locke: “The great end, for which men entered into society, was to secure their property.”

Commentary

  • In the UK, the executive derives its power from either statute or royal prerogative, which is the residue of the Crown’s powers not regulated by statute and based on the common law, such as the power to conduct foreign policy and declare war – it is for the courts to determine the scope of executive power derived from both these sources: see CCSU
  • This case was decided less than a century following the Glorious Revolution and the independence of the judiciary, when the Crown had become less powerful but the scope of its powers remained unclear
  • Entick represents assertion of judicial power that formed an early stepping stone in the establishment of the limits of executive authority, one of the most important features of the rule of law
  • Dicey: “… the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint.”
  • This case was also the inspiration for the Fourth Amendment of the US Constitution, which protects people from unreasonable searches and seizures by the government