Entick v Carrington [1765]
https://www.lawteacher.net/cases/entick ... n-1765.php
https://en.wikipedia.org/wiki/Entick_v_CarringtonEntick v Carrington [1765] EWHC KB J98
Summary: An individual’s rights over their property
Facts
On 11th November 1762 the defendant and three other named individuals entered a property belonging to the claimant and spent four hours there searching all of the rooms, breaking open boxes and going through all of the claimant’s possessions. They then removed one hundred charts and one hundred pamphlets from the property. The defendants asserted that they were lawfully entitled to enter the property because they were doing so under a warrant from Lord Halifax, who was a member of the Privy Council and Secretary of State, with a view to finding certain seditious papers and that such warrants had been granted and enforced since the time of the revolution. The claimant sued in trespass.
Issues
The issue in this circumstance was whether the defendants were trespassing when on the claimant’s land, but ultimately the issue related to whether a private individual’s right to protect their land was greater than the executive’s right to enter it.
Decision/Outcome
It was held that the defendants were trespassing on the claimant’s land. An individual has the right to prevent access to his land to anybody unless the access is granted by the law. It is only if the law permits an agent of the state to do something on the land of an individual that they will be able to do so. If the law is silent, any entry onto the land is a trespass. The state is therefore subject to the same position on trespass as would be the case for an individual. Any entry onto land without licence of the land owner is forbidden.
https://en.wikipedia.org/wiki/Everythin ... is_allowedEntick v Carrington [1765] EWHC KB J98 is a leading case in English law and UK constitutional law establishing the civil liberties of individuals and limiting the scope of executive power. The case has also been influential in other common law jurisdictions and was an important motivation for the Fourth Amendment to the United States Constitution. It is famous for the dictum of Lord Camden: "If it is law, it will be found in our books."
Facts
On 11 November 1762, the King's Chief Messenger, Nathan Carrington, and three other King's messengers, James Watson, Thomas Ardran, and Robert Blackmore, broke into the home of the Grub Street writer John Entick (1703?–1773) in the parish of St Dunstan, Stepney "with force and arms". Over the course of four hours, they broke open locks and doors and searched all of the rooms before taking away 100 charts and 100 pamphlets, causing £2,000 of damage (equivalent to £317,588 in 2021). The King's messengers were acting on the orders of Lord Halifax, newly appointed Secretary of State for the Northern Department, "to make strict and diligent search for ... the author, or one concerned in the writing of several weekly very seditious papers entitled, The Monitor, or British Freeholder".
Entick sued the messengers for trespassing on his land.
Judgment
The trial took place in Westminster Hall presided over by Lord Camden, the Chief Justice of the Common Pleas. Carrington and his colleagues claimed that they acted on Halifax's warrant, which gave them legal authority to search Entick's home; they therefore could not be liable for the tort. However, Camden held that Halifax had no right under statute or under precedent to issue such a warrant and therefore found in Entick's favour. In the most famous passage Camden stated:
Hence Lord Camden ruled, as later became viewed as a general principle, that 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.
- The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted by the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.
Significance
The judgment established the limits of executive power in English law: the state may act lawfully only in a manner prescribed by statute or common law.
It was also part of the background to the Fourth Amendment to the United States Constitution and was described by the Supreme Court of the United States as "a 'great judgment', 'one of the landmarks of English liberty', 'one of the permanent monuments of the British Constitution', and a guide to an understanding of what the Framers meant in writing the Fourth Amendment".
The importance of Entick v Carrington in limiting the ability of law enforcement to only act within the law was recognised in the post-Brexit decision of the EU to allow data sharing between the UK and EU.
"Everything which is not forbidden is allowed" is a legal maxim. It is the concept that any action can be taken unless there is a law against it. It is also known in some situations as the "general power of competence" whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action.
The opposite principle "everything which is not allowed is forbidden" states that an action can only be taken if it is specifically allowed.
A senior English judge, Sir John Laws, stated the principles as: "For the individual citizen, everything which is not forbidden is allowed; but for public bodies, and notably government, everything which is not allowed is forbidden." Legal philosopher Ota Weinberger put it this way: "In a closed system in which all obligations are stated explicitly the following inference rules are valid: (XI) Everything which is not forbidden is allowed".