Constitutional Significance of Entick v Carrington

The following paper aims to evaluate the overall significance that the give case law brought to the constitution of the UK. To that end, the legal principles involved as well as the judgement of the given case law will be analysed keeping the context of the Constitution in mind. This is due to the fact that “Entick v Carrington” is a pivotal case in the field of English constitutional law.

While the case initially appeared to be about trespass, the ruling also had significant constitutional ramifications for common law jurisdictions worldwide. The idea was established that the “prerogative powers of the monarch and government are subordinate to the law of the land.” This principle ensures that government officials, when acting in an executive position, are prohibited from exercising public power unless they have explicit authorization from a specific legal norm. Government officials are prohibited from entering private property without authorization.

The current government had suspicions that Entick was the anonymous author of “scandalous reflections and invectives” against the both Houses of Parliament and the Government. The Earl of Halifax, who was functioning as “the Secretary of State” in an executive role, issued a search warrant for the Entick's residence. Carrington and three accomplices unlawfully entered his property “…by using physical force and weapons... without his permission and against his wishes” in accordance with this warrant.

In their pursuit to validate the government's accusations, they dedicated a cumulative duration of four hours to meticulously searching for evidence. This involved delving into Entick's personal documents and resulted in significant property damage. Several personal belongings and documents were confiscated. Entick asserted that Carrington lacked the authority to access or meddle with his property. He initiated legal proceedings to claim £2000 in compensation. The defendants refuted all allegations brought before them. They depended on two defences:

1. They were serving as messengers under a warrant provided by the Earl of Halifax in his capacity as “Secretaries of State;”

2. This warrant was legally justified, allowing them to justify their actions based on it.

Essentially, they asserted that their actions were based on a warrant that had legal authority over the court. Upon deliberation, the sitting judge, Lord Camden, acknowledged that “the Earl of Halifax” had fulfilled the role of Secretary of State. Nevertheless, he was unable to locate any legal document offered him (i.e. the Earl) the power to issue a warrant like that under these specific conditions. Lord Camden, in a famous statement, declared the defendants to be legally responsible, “….if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”

Lord Camden believed that, at most, the request may be compared to a warrant for searching and seizing stolen goods. However, he argued that such a warrant should have been issued specifically to constables and other recognised public officers. Moreover, Carrington's investigation and the confiscated materials were not connected to stolen merchandise. Several of the progressive principles we currently cherish are based on this precedent. Prior to the decision, it was said that “such warrants have been authorised by Secretaries of State since the Revolution.” Lord Camden emphatically stated that it is imperative to cease these actions, as their legality would signify the demise of this nation's freedom.

In his writings more than a hundred years ago, some have argued that it was too tempting for the administrative and legislative branches of government to become intertwined. The judgement rendered by Lord Camden played a crucial role in establishing clear boundaries between the executive and legislative powers. This directly facilitated the creation of significant literary works by notable figures such as Montesquieu, which subsequently played a crucial role in establishing the principle of 'division of powers. Dicey observed that every government official, regardless of their rank, is equally accountable for any action they take without legal grounds.

The outcome of this case also had worldwide consequences. It had a significant impact on the creation of the US Constitution, widely recognised as the primary influence on the Fourth Amendment. Australia is also impacted by its impacts, which influence significant constitutional rulings, such as the one in “A v Hayden.” The origins of “Articles 6 and 8 of the European Convention on Human Rights,” which ensure the right to a fair trial and the right to privacy, can be attributed to this case.

The ideas established in “Entick v Carrington” are widely recognised as essential elements of a well-functioning democracy in the modern era. The case has been described as establishing the legal differentiation “between public law, which governs the state and its interaction with its citizens, and private law, which governs the relationships between citizens.” After 16,250 years since its establishment, it continues to be referenced as the primary source showcasing the concept of 'principle of legality.

According to prominent legal experts, the current exercise of executive power within the UK constitution is considered a “legal matter rather than a factual matter.” This implies that the use of such authority must be done so by referring to specific laws or previously decided court cases. Powers cannot be exercised in a random or capricious manner, unless they have existed since ancient times.

While “Entick v Carrington” remains globally influential, several analysts have raised doubts about its ongoing relevance as the UK’s Constitution adapts over time. “The Security Services Act 1996” granted the Secretary of State the authority to issue warrants for the purpose of property interference and tampering with wireless telephony. Some individuals perceived this as equivalent to “unjustified executive intrusion on personal freedom.” Nevertheless, it is important to acknowledge that the Act underwent thorough consideration and was approved by the legislature with set stipulations. Consequently, it does not allow for arbitrary exercise of executive authority. In addition, the instances of “Gillies v Ralph and Kahn v Commissioner of Police of the Metropolis” illustrate that when compelled to deviate from the principles established in “Entick v Carrington,” the courts exercise great caution and adhere to a cautious approach.

Bibliography

Case law

A v Hayden [1984] HCA 67

Boyd v United States, 116 U.S. 616 (1886)

Entick v. Carrington (1765) 95 ER 807

Gillies v Ralph 2008 HCJAC 55

Kahn v Commissioner of Police of the Metropolis 2008 EWCA Civ 723

Articles and Journals

Harris, James A. "The interpretation of Locke’s Two Treatises in Britain, 1778–1956." British Journal for the History of Philosophy 28, no. 3 (2020): 483-500.

Harris, James A. "Treatises of government and treatises of anarchy: Locke versus Filmer revisited." Locke Studies (2020).

Hickman, T. R. "Revisiting Entick v Carrington: Seditious Libel and State Security in Eighteenth Century England." Bloomsbury Publishing, 2015.

Hunt & Duffy, Goodbye Entick v Carrington: The Security Service Act 1996, E.H.R.L.R. (1997)

Leeming, Mark. "Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police." (2020).

NIXON, G. PORTER. "HALSBURY'S LAWS OF ENGLAND."

Stone, Geoffrey R., Louis Michael Seidman, Cass R. Sunstein, Mark V. Tushnet, Pamela S. Karlan, Aziz Huq, and Leah M. Litman. Constitutional law. Aspen Publishing, 2023.

Important Notes:

This paper evaluate the overall significance that the give case law brought to the constitution of the UK. To that end, the legal principles involved as well as the judgement of the given case law will be analysed keeping the context of the Constitution in mind. This is due to the fact that “Entick v Carrington” is a pivotal case in the field of English constitutional law.

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