MS Misc 562 is a contemporary report of Entick v Carrington, a document which casts doubt on whether two of the most frequently-quoted passages of an English judgment were ever uttered…
Entick v Carrington (1765) is one of the most famous English cases of the 18th Century. John Entick, a bookseller and author, successfully sued a government agent for seizure of his private papers. Two elements of the reported judgment by Lord Camden ensured the case’s enduring impact. The first relates to the centrality of the protection of private property as a fundamental tenet of the Common Law: “The great end, for which men entered into society, was to secure their property.”
The second highly influential principle has been used to support the view that the Government is only able to act as expressly allowed by the law. “If it is law, it will be found in our books. If it is not to be found there, it is not law”.
The case, as reported by Francis Hargrave in the State Trials, has been frequently cited in Court (at least three times in reported cases from 2022). It was also a key influence on the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures and was described by the US Supreme Court as “the true and ultimate expression of constitutional law”.
Hargrave’s report in the State Trials did not appear until 1781. Two manuscript reports, closer in date to the decision, exist which do not include Lord Camden’s celebrated dicta. One of these, a report written by Edward Moore for the Attorney General, Charles Yorke, is included in the Hardwicke Papers in the British Library. This digitised manuscript, of unknown authorship is in the manuscripts collection in Lincoln’s Inn. This is the first time the text of this manuscript has been published.
It has been argued that Moore’s report (and, by implication, this manuscript) is more authoritative than Hargrave’s report. If so, this raises some fundamental questions about how we understand Entick v Carrington: Did Lord Camden ever say those oft-quoted words? If not, can Hargrave’s report be relied on? How did 18th Century lawyers understand precedent?
These questions are explored in depth in two recent articles: T.T. Arvind and Christian R. Burset in 110 Kentucky Law Journal 265 (2022) and the Hon Justice Mark Leeming in (2020) 49 Australian Bar Review 199