The Volokh Conspiracy

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"Scroggs C.J. always excepted"


The case of Entick v. Carrington, 95 Eng. Rep. 807 K.B. (1765), was a major influence on the enactment of the Fourth Amendment, and I assign an edited version of the case in my Criminal Procedure class when we begin our study of search and seizure law. I've always been amused by the parenthetical in this paragraph:

The warrant in our case was an execution in the first instance, without any previous summons, examination, hearing the plaintiff, or proof that he was the author of the supposed libels; a power claimed by no other magistrate whatever (Scroggs C.J. always excepted); it was left to the discretion of these defendants to execute the warrant in the absence or presence of the plaintiff, when he might have no witness present to see what they did; for they were to seize all papers, bank bills or any other valuable papers they might take away if they were so disposed; there might be nobody to detect them.

So Scroggs was so far out of touch that he not only claimed the power no one else did, but apparently this was so common that he was "always excepted." Makes you wonder, who was Scroggs?

Just based on a quick Internet search—dangerous, but reasonably accurate here, I hope—Sir William Scroggs was Lord Chief Justice of England about a century before Entick v. Carrington. Here are excerpts of the Wikipedia entry on Scroggs:

As Lord Chief Justice Scroggs presided at the trial of the persons denounced by Titus Oates for complicity in the "Popish Plot", and he treated these prisoners with characteristic violence and brutality, overwhelming them with sarcasm and abuse while on their trial, and taunting them when sentencing them to death. So careless was he of the rights of the accused that at one trial he admitted to the jury when summing-up that he had forgotten much of the evidence. . . .

At the trial in February 1679 of the prisoners Henry Berry, Robert Green, and Lawrence Hill, accused of the murder of Sir Edmund Berry Godfrey, Scroggs gave a characteristic exhibition of his methods, indulging in a tirade against the Roman Catholic religion, and loudly proclaiming his belief in the guilt of the accused. When Lawrence Hill's wife boldly accused Miles Prance, the Crown's chief witness, of perjury in open court, Scroggs said incredulously "You cannot think that he will swear three men out of their lives for nothing?". All three defendants were put to death. As Mrs. Hill correctly predicted, Prance later confessed that the three were wholly innocent.

It was only when, in July of the same year, Oates's accusation against the Queen's physician, Sir George Wakeman, appeared likely to involve the Queen herself in the ramifications of the plot, that Scroggs began to think matters were going too far; he was probably also influenced by the discovery that the court regarded the plot with discredit and disfavour, and that the country party led by Shaftesbury had less influence than he had supposed with the King. The Chief Justice on this occasion threw doubt on the trustworthiness of Bedloe and Oates as witnesses, and warned the jury to be careful in accepting their evidence. Wakeman and a number of priests who were tried with him were duly acquitted. . .

Acting in the assurance of popular sympathy, Oates and Bedloe now arraigned the Chief Justice before the Privy Council for having discredited their evidence and misdirected the jury in the Wakeman case, accusing him at the same time of several other misdemeanours on the bench, including a habit of excessive drinking and foul language. In January 1680 the case was argued before the Council and Scroggs was acquitted. At the trials of Elizabeth Cellier and of Lord Castlemaine in June of the same year, both of whom were acquitted, he discredited Dangerfield's evidence, and on the former occasion committed the witness to prison. In the same month he discharged the grand jury of Middlesex before the end of term in order to save the Duke of York from indictment as a popish recusant, a proceeding which the House of Commons declared to be illegal, and which was made an article in the impeachment of Scroggs in January 1681. The dissolution of Parliament put an end to the impeachment, but in April Scroggs was removed from the bench . . .

Scroggs was the subject of many contemporary satires; he was reputed to live a debauched lifestyle and his manners during trials were considered 'coarse' and 'violent'. Roger North, who knew him well, described him as a man of great wit and fluency, but "scandalous, violent, intemperate and extreme." Forty years after his death, Jonathan Swift in his celebrated attack on William Whitshed, Lord Chief Justice of Ireland, called him "as vile and profligate a villain as Scroggs".

So yes, that seems like good advice: "Scroggs C.J. always excepted."