One of the attractions of doing research in legal history is the feeling of exhilaration that can accompany a successful hunt for a document that you know existed at some time, and which you think you just might manage to find with a little bit of luck. Earlier this year, I had that precise feeling when I found a manuscript account of the decision in Entick v Carrington (1765) 19 ST 1029 after having hunted for it for several months. The manuscript was prepared for the solicitor general at the time, and the version that has survived is a fair copy of notes prepared in court by a shorthand writer.
The manuscript is potentially important, as the provenance of the more familiar account published in the State Trials is unknown. Hargrave was deliberately cagey about how he got hold of a copy in his introduction to the report, and there is little chance we will ever discover its precise mode of transmission. This manuscript, in contrast, was produced by someone who was actually in court, for a law officer of the Crown who had an obvious interest in as accurate an account of the decision as possible. That suggests that it deserves to be taken seriously.
The manuscript for the most part follows the State Trials version quite closely, but there are a couple of differences which are very significant. I will be discussing the manuscript account of the decision, and these differences, in some detail at SLS in a fortnight, but there are two points I will make at this stage.
Firstly, the political context comes across far more clearly in this version. Even though the words are not particularly different, the differences we do see are significant. Lord Camden was an active politician, as was Mansfield, and the two were on opposite sides of the faultlines that ran through Whig politics – Camden was on Pitt’s side, while Mansfield sided with Newcastle. The discussion of the powers of the Secretary of State, in particular, acquire a particularly strong significance when you read them in the light of the sharply divided positions that were being taken at the time on the rising institution of Cabinet, and of the power exercised by the Court Whigs.
Secondly, the entire undercurrent of property rights is missing in this manuscript. The famous neo-Lockean sentence “The great end, for which men entered into society, was to secure their property” is missing. What is there in its place turns the issue into a rejection of the idea of unbounded power, and if the role of law (as distinct from mere government practice) in setting legitimate bounds to power. I’ll set out the entire passage as it appears in the manuscript in full:
And here it must be observed, that no subject whatever is excepted, because both Houses of Parliament have lately resolved, there is no Privilege in the case of a seditious Libel, and therefore their Books and Papers may be seized in the same way. And I am able to affirm that this sort of Warrant, upon a late Occasion has been executed in its utmost Latitude, for in the Case of Wilkes and Wood, when the Messengers were executing that Warrant, they boggled when they came to his private Desks & Bureau, and they sent to the Secretary of State to know what they should do, and whether they must take all the Papers & Writings? And the Secretary of State sent word – all must be taken. And they then took all they could find, and swept the whole, and Mr. Wilkes’ private Pocket Book filled up the mouth of the sack. And I have since been told by the ablest and most experienced messenger, and who is best acquainted with the Practice, that he was obliged to do every thing commanded in the Warrant, by virtue of his Oathe, or otherwise he perjured himself, and that on those Occasions he generally swept Alle. As this Jurisdiction of the Secretary of State is so extensive, therefore the Power ought to be as clean as it is extensive. It does not appear in our Law Books at all, that he has this Power.
For the sake of the security of the subjects in general, in cases of Execution of Seizures at common law, every Man by the Common Law is obliged to give up his Right for the sake of Justice and the general Good, but then that is only for a Time till the Demands for which they are seized are satisfied. But by the Law of England every Invasion of a Man’s private property is a Trespass and subject to an Action; though not a Farthing Damage done; for no man can set his Foot upon my Land and even tread any Grass, without committing a Trespass, and being liable to an Action for it. This is proved by every Declaration in Trespass, and is every Day’s Experience; and in that Case, the Defendant if he admits the fact he is then obliged to shew some positive Law or some unavoidable necessity has excused Him. The Jury have nothing to do with more than the Fact, and if the Defendant shews a Justification in Point of Law, the Judges are to look into their Books, to see if the Defendant is justified either by Statute or the Common Law, and if upon looking, nothing is found, and the Books are silent on that Head, the Silence of the Books is conclusive Evidence against the Defendant, that He is not right in his Justification.
According to this way of Reasoning it is incumbent on the Defendant to show, by what Law this Trespass is warranted. Private Papers are the only way of concealing a man’s most valuable Secrets either in his Profession or any other way, and are his dearest Property. Where private Papers are carried away, the Secrets contained in them may be discovered. Whence then does the Secretary of State derive this Power? Is there any Law that gives him such a Power as this? I cannot satisfy myself that there is, for I see none. Then ’tis too much for me to justify that Practice.
The Lockean quote about property, had it been a part of the judgment, would have appeared at the end of the first paragraph I’ve quoted. As you can see, the entire passage hangs together extremely well without it and, in my view, even makes more sense in the context.
The title of my SLS talk (at the second plenary session on 2 September) is “Republican liberty and the common law: The 18th century context of Entick v Carrington“. I’m editing the manuscript, and hope to make it available online shortly after SLS (time permitting).