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The Strange Fruit of Semayne’s Case: No-Knock Warrants

05/08/2021 / Sarah McKibbin / 0 Comments

Author: Matthew Schleehauf (USQ JD student)

Introduction

The shocking events of 2020 have shed a powerful light on the overreaching powers of police to interfere with the lives of the common people. The notoriously well-known example of George Floyd and the call to arms — ‘I can’t breathe’ — not only shone a light on police brutality and racism, but also on the police’s overreaching powers. The US Congress recently debated the issue of police powers and passed a new piece of legislation in the Senate known as the George Floyd Justice in Policing Act of 2020[1] (‘George Floyd Act’), one of the aims of which is to ban the ‘no-knock warrant’, an ability which previously allowed law enforcement officers to break into a person’s home without warning or notice. Join me as we explore together the history of the no-knock warrant,[2] going as far back as 17^th century England with the landmark decision in Semayne v Gresham (‘Semayne’s Case’),[3] which set the foundation of a person’s right to call their home their castle, thereby limiting the power of authorities to gain entry. This historical case will then be examined to establish its effect on modern legal principles in Australia and how it continues to shape the law in the common law world.

Semayne’s Case

Our story starts in 17^th century England, the year 1604, the landmark decision of Semayne’s Case has just been laid down in the Court of the King’s Bench in favour of the defendant, Mr Richard Gresham, upholding his right to refuse entry to his house to law enforcement.[4]

‘The house of every one is his castle…’[5]
Sir Edward Coke in Semayne’s Case

Richard Gresham was a joint tenant of a house in Blackfriars, London, with George Berisford in the late 16^th century.[6] George Berisford owned items at the time which were inside the house.[7] Upon George Berisford’s death, the possession of the items, which remained in the house, were transferred over to the defendant through survivorship.[8] The plaintiff, Peter Semayne, obtained a writ of extent, a document allowing him to seize all of George Berisford’s items to settle a debt owed to him by Berisford at the time of his death.[9] Semayne delivered the writ to the sheriffs of London, who agreed to carry out the requirements of the writ and attend the place where Berisford’s items were held and seize them for Semayne.[10] Upon arrival at Richard Gresham’s house, the defendant prevented the sheriff from accessing the house by closing the door, thereby preventing the plaintiff from recovering the debt.[11] The decision of the King’s Bench explored situations when a person could lawfully prevent the King’s men (the sheriff) from entering their home.[12]

The King’s Bench examined the difference primarily from a criminal and civil point of view[13] given its jurisdiction included, after the 15^th century, matters involving non-payment of debt.[14] The Court found that in all cases where the King is a party, such as that of criminal matters, then the sheriff (or King’s person) has the authority to break a person’s door in order to undertake the arrest or the King’s process.[15] The Court, however, added a qualification that ‘before he breaks it [the door], he ought to signify the cause of his coming, and to make request to open doors’.[16] The Court weighed up the impasse and inconvenience the breaking of the door would cause to the person, as well as the fact that the person could be arrested elsewhere rather than in the safety of their own home.[17] The Court, however, concluded that if there was a suspicion of a felony, then the King’s officer may break the house, after notice is given, to apprehend the felon for two reasons: first, that it is the role of the Commonwealth to apprehend felons; and secondly, that the privilege bestowed upon persons that they have liberty inside their house does not hold against the King.[18] Furthermore, the Court found that in all cases (criminal or civil) if the door is open, then the sheriff may enter the house.[19]

The Court took a very different approach with that of civil cases, such as that of Semayne’s Case, where the King was not a party to the case. The Court held that the house of every one is his castle[20] and that for a common person to break the house to execute a process would be of great inconvenience, in addition to a loss of liberty to the person whose house had been broken.[21] It was therefore found that a sheriff may not break into a person’s house in the execution of a civil matter, even after a request or notice of entry was made (although see matters involving protection not being extended to third parties and real action where this rule does not apply).[22] Furthermore, the Court even said that if the sheriff did break the house then this could constitute trespass on the part of the sheriff.[23] The Court therefore found that the defendant in this case was within his legal rights to shut the door to the sheriff and the sheriff had no right to break the door of Mr Gresham’s castle.[24]

The Broader Historical Context of Semayne’s Case

Semayne’s Case[25] established this precedent of the knock and announce principle which had a profound effect on historical English and American cases. For example, the 1757 English case of Richard Curtis confirmed that the knock and announce principle did also apply to criminal matters, allowing the sheriff to break open doors only after giving notice of the warrant allowing them to do so.[26] The Fourth Amendment to the American Constitution also highlights the historical importance of Semayne’s Case:[27] the amendment required police officers to announce their purpose prior to breaking into an individual’s home.[28] An example which discussed this amendment was Miller v United States[29] in 1958 which also confirmed in the common law that a police officer was required to comply with the knock and announce principle, solidifying Semayne’s Case in American law.[30] Later cases, such as Ker v California[31]in 1963, appear to have relaxed this rule establishing exceptions to when police can break into a premises without notice, such as when there is a risk of evidence being destroyed.[32] This led to the US Government enacting laws in 1970 legalising the ‘no knock warrant’ in certain cases,[33] which lead to controversial and disastrous occurrences of violence during such cases.[34] As a result, the American Government repealed the legislation in 1974.[35]

Modern Application of Semayne’s Case

Semayne’s Case has also had a profound effect on the Australian legal system. The case of Gardiner v Marinov[36] is a prime example. The appellant in this case, Gardiner, was ordered to pay costs by the court for a previous matter.[37] Gardiner did not pay within the stipulated period, resulting in a warrant of distress being issued to seize her goods to satisfy the debt.[38] A bailiff attended her property and attempted to enter when Gardiner refused entry.[39] The bailiff requested police assistance who attended the property and entered her premises with the bailiff.[40] Gardiner sued for trespass.[41] Citing Semayne’s Case,[42] the Court found that because this was a civil matter, it did not permit the police or the bailiff to enter the premises as entry was not authorised by the occupant.[43] As such, this case reaffirmed the role of Semayne’s Case and the knock and announce principle in Australia.

Conclusion

In conclusion, Semayne’s Case still stands as the leading common law authority regulating entry into a person’s home with it not only applying to Australian jurisdictions but, as explored above, still having a profound effect on other jurisdictions such as the United States. Now that you are armed with this knowledge, I implore you to go forth and learn about the George Floyd Act[44] and whether the principles in this Act can be applied to the Australian jurisdiction to curb the powers of police.

[1] George Floyd Justice in Policing Act of 2020, HR 7120, 116^th Congress (2020) (‘George Floyd Act’).

[2] Todd Witten, ‘Wilson v Arkansas: Thirty Years after Ker the Supreme Court Addresses the Knock and Announce Issue’ (1996) 29(2) Akron Law Review 447, 449–50, citing Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194, 194–95.

[3] Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194 (‘Semayne’s Case’).

[4] Ibid 199.

[5] Ibid 194.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid 194–5.

[10] Ibid.

[11] Ibid.

[12] Ibid 194.

[13] Note, ‘Right of Sheriff to Break and Enter Outer Door to Execute Process in Virginia’ (1933–1934) 20(5) Virginia Law Review 592, 596–7 (‘Virginia Law Review’).

[14] Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 3^rd ed, 2013) 70–1.

[15] Semayne’s Case (n 3) 195–6.

[16] Ibid 195.

[17] Ibid 198.

[18] Ibid 197.

[19] Ibid.

[20] Ibid 194.

[21] Ibid 198.

[22] Ibid 194, 199. Also see Virginia Law Review (n 13) 598–99.

[23] Semayne’s Case (n 3) 198.

[24] Ibid 199.

[25] Ibid.

[26] Witten (n 2) 450, citing Curtis’s Case (1757) 168 ER 67.

[27] Semayne’s Case (n 3).

[28] Witten (n 2) 452, citing Ker v California, 374 US 23, 49 (1963).

[29] Miller v United States, 357 US 301(1958).

[30] Witten (n 2) 452, citing Miller v United States, 357 US 301, 313 (1958). Also see Robert J Driscoll, ‘Unannounced Police Entries and Destruction of Evidence after Wilson v Arkansas’ (1995) 29(1) Columbia Journal of Law and Social Problems 1, 16, citing Miller v United States, 357 US 301 (1958).

[31] Ker v California, 374 US 23 (1963).

[32] Driscoll (n 30) 16, citing Miller v United States, 357 US 301 (1958).

[33] Witten (n 2) 456, citing Comprehensive Drug Abuse Prevention and Control Act of 1970, HR 18583, 91^st Congress (1970).

[34] Witten (n 2) 456–57, citing Charles P Garcia, ‘The Knock and Announce Rule: A New Approach to the Destruction of Evidence Exception’ (1993) 93(3) Columbia Law Review 685, 705. Also see Driscoll (n 30) 1–3.

[35] Ibid.

[36] Gardiner v Marinov (1998) 7 NTLR 181.

[37] Ibid 181.

[38] Ibid 183.

[39] Ibid 184.

[40] Ibid.

[41] Ibid 181.

[42] Ibid 189–90, citing Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194, 197–98.

[43] Ibid 189–91.

[44] George Floyd Act (n 1).

The Humber Ferry Case: On the Road to Assumpsit

15/07/2021 / Aaron Timoshanko / 0 Comments

Author: Annabel Luxford (USQ JD student)

The catalyst for change is often not recognised in the moment it occurs. Something minor and seemingly unremarkable can lead to things we would never expect. In a famous scene in the movie Jurassic Park, Jeff Goldblum’s character Dr Ian Malcolm says, ‘a butterfly can flap its wings in Peking, and in Central Park you get rain instead of sunshine’.[1] He was discussing chaos theory which looks at the unpredictability in complex systems.[2] In a similar way, a horse falling off a ferry in medieval England brought about changes in the legal system that had far reaching effects into the future and across the world.

The Humber Ferry Case[3] from 1348 is an important English legal case. It set in motion a series of changes that have shaped the way we understand obligations and liability under modern contract[4] and torts[5] law. Had it not been for that ill-fated day where the horse was lost to the River Humber, our law may have developed quite differently.

A ferry, a mare overboard and a bold plaintiff

John de Bukton paid Nicholas Tounesende of Hessle, a ferryman at a crossing on the River Humber in Yorkshire, to carry his mare over the river. The plaintiff, Bukton, claimed that the ferryman, Tounesende, overloaded the boat with horses and, as a result, his horse was lost overboard and died.

Like many changes that are set in motion, timing is everything. It was at the same time that Bukton lost his mare to the river, that the King’s Bench, which still occasionally travelled from Westminster, had arrived in York in 1348. Looking for a remedy to his loss, Bukton boldly decided to bypass the local courts for an answer. He brought a Bill of Complaint before the King’s Bench. What was so bold about his decision? Well firstly he did not have a writ, but rather a Bill of Complaint. Secondly, at that point in time, the King’s Bench did not hear cases like that of the plaintiff. It was the Court of Common Pleas that would usually hear matters between private citizens. Bukton did not have an action for trespass in the royal courts on the facts of his case.

Up until the mid-thirteenth century, trespass was only an option to recover damages where there were allegations that someone had committed a wrong that was a breach of the King’s peace, and where there had been a vi et armis (force of arms).[6] As A W B Simpson writes, ‘[t]he function of this grave allegation in the fourteenth century, and earlier, had been to justify the intervention of the royal courts, by showing that the King had a special interest in the wrong, for at this period there was a feeling — one could almost call it a theory — that, in general, case involving private wrongs should be determined in the local courts.’[7]

It would have seemed unlikely in 1348 that the King’s Bench would hear the plaintiff’s case. There was no writ, no allegation of force and no breach of the peace. Where was the royal interest? Donahue interestingly points out the royal interest can perhaps be found in the fact that the River Humber, where the incident occurred, was part of the King’s Highway.[8] Whether or not this was the reason for allowing the case, Bukton was granted permission to bring his complaint before the King’s Bench.

How the matter played out in the royal court

In the King’s Bench, the defendant’s attorney, Richmond, argued that a trespass action was the wrong action to bring and that a writ of covenant should have been brought. However, as there was no sealed document (deed) between the ferryman and the plaintiff for the carriage of the horse over the river, a writ of covenant would not have been available to Bukton.

It was a legal requirement at the time that to sue for breach of covenant there had to be a deed. The writ of covenant was a limited remedy. It failed to protect everyday verbal agreements between parties[9] such as the one between the defendant and the plaintiff. In arguing that a trespass action had been inappropriately brought by the plaintiff, Richmond stated that there was no allegation that the defendant had killed the horse and as such there was no tort or wrongdoing (the basis for trespass).[10] However, a Justice of the King’s Bench, Baukwell, responded to such an assertion that the wrong or trespass was in fact committed when the ferryman overloaded the boat so the mare perished.[11]

The King’s Bench held that an action, despite the absence of the use of force, could be brought for trespass — the claim was against the harm done to the horse, and not merely the failure to transport it across the river. As such, no documentary evidence of a covenant was needed. The Court found in favour of the plaintiff and ordered the defendant to pay 40 shillings.[12]

Undertakings, negligence and the path to assumpsit

The legal ramifications of the court’s decision in the Humber Ferry Case was significant. They had for the first reported time allowed an action of trespass to apply to the damage and loss caused by a badly performed agreement.[13] There are two important aspects here for the evolution of the law. Firstly, the harm done was not directly caused (with force of arms as trespass called for) but was merely negligent. By allowing accidental harm to be remediable in a trespass action, the way was paved for action on the case for negligence, and from that the modern law of tort.

Secondly, there was no longer the requirement for a breach of the peace. A defendant could now be liable for damage if the defendant undertook (assumpsit) to do a job for a plaintiff but did it ‘so negligently or unskilfully as to cause harm to the plaintiff’s person or property’.[14] Stoljar has cleverly described the new action of assumpsit as, ‘slipping into the unoccupied middle ground of trespass and covenant’.[15] It seems, even back in medieval England, that the law was fluid and it developed organically to fit the needs of the time.

From assumpsit to the modern law of contract and torts

By the fifteenth century, writs started including assumpsit super se indicating that someone had undertaken to do something rather than breaching the peace. In the years that followed the Humber Ferry Case, the new approach to assumpsit was applied firstly to the ill performance of an undertaking (misfeasance)[16] and later to the non-performance (nonfeasance) of undertakings.[17] Thus the basis of the modern law of contract was born.

By the end of the seventeenth century, negligence was emerging as the basis for an independent wrong in itself, based on the defendant’s failure to take reasonable care.[18] Before this, actions for negligence were limited to the negligent performance or non-performance of an undertaking or discrete wrongs.[19] Plunkett notes that the recognition of the concept of ‘duty of care’ filled a gap for plaintiffs: ‘[c]laims that would fail in contract could now be converted to claims that would succeed in tort. ‘[20]

The judiciary’s development and articulation of the obligations and duties owed under contract and tort has been extensive since the King’s Bench travelled to York in 1348. It is fair to say, however, that the foundation of contract and torts law can be found in the Humber Ferry Case and the centuries that followed.

Looking back to look forward

Looking back in time to the Humber Ferry Case does more than shed light on the origins of the law of contracts and torts. It reminds us how English law has and continues to evolve organically and sometimes unexpectedly. The catalyst for important changes can sometimes be a seemingly unremarkable event like a horse perishing on a ferry. What might seem like a small event at the time can set in motion changes that have drastic effects on legal doctrines that are felt far into the future. Taking the time to explore and understand legal history helps us to have an informed understanding of what is happening today. It helps us become better decision makers and agents of change both in the legal profession and the community at large.

Reference List

John Baker and SF Milsom, Sources of English Legal History: Private Law to 1750 (Oxford University Press, 2010)
Charles Donahue Jr, ‘The Modern Law of Both Tort and Contract: Fourteenth Century Beginnings?’ (2017) 40(1) Manitoba Law Journal 9
Albert Kirafly, ‘The Humber Ferryman and Action on the Case’ (1953) 11(3) Cambridge Law Journal 421
James C Plunkett, ‘The Historical Foundations of The Duty Of Care’ (2015) 41(3) Monash University Law Review 716
M J Sechler, ‘Supply versus Demand for Efficient Legal Rules: Evidence from Early English Contract Law and the Rise of Assumpsit’ (2011) 73 University of Pittsburgh Law Review 170
A W B Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Clarendon Press, 1975).
S J Stoljar, A History of Contract At Common Law (ANU Press, 1975)
Robert Bishop, Chaos, The Stanford Encyclopedia of Philosophy (Web page) <https://plato.stanford.edu/archives/spr2017/entries/chaos/>

[1] Jurassic Park (Amblin Entertainment, 1993).

[2] Robert Bishop, Chaos, The Stanford Encyclopedia of Philosophy (Web page) <https://plato.stanford.edu/archives/spr2017/entries/chaos/>.

[3] Bukton v Tounesende (1348) (‘Humber Ferry Case’) JH Baker and SFC Milsom, Sources of English Legal History: Private Law to 1750 (Butterworths, 1987).

[4] ‘A contract is an agreement or promise between two or more parties that is legally enforceable’: Oxford Australian Law Dictionary (3^rd ed, 2017) ‘contract’.

[5] ‘Torts is the law of civil wrongs not arising out of a contractual relationship and includes claims such as negligence’: Oxford Australian Law Dictionary (3^rd ed, 2017) ‘torts law’.

[6] A W B Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Clarendon Press, 1975) 202.

[7] Ibid.

[8] Charles Donahue Jr, ‘The Modern Law of Both Tort and Contract: Fourteenth Century Beginnings?’ (2017) 40(1) Manitoba Law Journal 9, 15.

[9] MJ Sechler, ‘Supply versus Demand for Efficient Legal Rules: Evidence from Early English Contract Law and the Rise of Assumpsit’ (2011) 73 University of Pittsburgh Law Review 161, 170.

[10] Simpson (n 6) 211.

[11] Ibid.

[12] Albert Kiralfy, ‘The Humber Ferryman and Action on the Case’ (1953) 11(3) Cambridge Law Journal 421, 422.

[13] SJ Stoljar, A History of Contract At Common Law (ANU Press, 1975) 29.

[14] Ibid.

[15] Ibid.

[16] The Farrier’s Case (1373), cited in Donahue (n 8) 33s; The Surgeon’s Case cited in Donahue (n 8) 38.

[17] Somerton v Colls (1433) in JH Baker and SFC Milsom, Sources of English Legal History: Private Law to 1750 (Oxford University Press, 2010) 427; Shipton v Dogge [No 2] (1422) in JH Baker and SFC Milsom, Sources of English Legal History: Private Law to 1750 (Oxford University Press, 2010) 434.

[18] James C Plunkett, ‘The Historical Foundations of the Duty Of Care’ (2015) 41(3) Monash University Law Review 716, 718.

[19] Ibid.

[20] Ibid 719.

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