I’m writing a law review article that has a discussion of the famous English case of Entick v. Carrington (1765), which was influential in inspiring the adoption of the Fourth Amendment. But I have a problem that I’m hoping readers might be able to solve. Modern citations to Entick generally cite two different sources: The English Reports and Howell’s State Trials. If you look carefully, it turns out that the two versions are different in some significant ways. This isn’t that surprising: In the 18th century some decisions were only delivered orally, and different reporters would publish different accounts of them. For the article I am writing, I want to figure out which version or versions of Entick might have been known in the Colonies and therefore could have helped inform the original understanding of the Fourth Amendment.
One thought was to look at how Entick was cited in the 18th century in judicial opinions. So I turned to the allcases-old Westlaw database, which has some coverage (not perfect coverage, but at least some coverage) of the period. The case was first cited in opinions that made it into the database in State v. Willingborough Road, 1 N.J.L. 128 (N.J. 1792), but without a citation to a reporter. From 1800 to 1840, there are about a dozen citations to Entick that make it into the database. But they mostly cite to another reporter: The citations were to “2 Wils. 275,” a reference to Mr. Serjeant Wilson’s Reports. The first Entick citation to State Trials seems to be to a volume published before Howell had his name on the series: Bell v. Clapp, 10 Johns. 263, 6 Am.Dec. 339, (N.Y.Sup. 1813) has an Entick citation to both “2 Wils. 275” and “11 St. Tr. 313.” Wikipedia explains the State Trial reports as follows:
The first collection of accounts of state trials was published in 1719 in four volumes. Although without an editor’s name, it appears that Thomas Salmon (1679–1767), an historical and geographical writer, was responsible for the collection. A second edition, increased to six volumes, under the editorship of Sollom Emlyn (1697–1754), appeared in 1730. This edition contained a lengthy preface critically surveying the condition of English law at the time.
A third edition appeared in 1742, in eight volumes, the seventh and eighth volumes having been added in 1835. Ninth and tenth volumes were added in 1766, and a fourth edition, comprising ten volumes, with the trials arranged chronologically, was published the same year. A fifth edition, originated by William Cobbett, but edited by Thomas Bayly Howell (1768–1815) and known as Cobbett’s Complete Collection of State Trials, was published between 1809 and 1826. This edition is in thirty-three volumes; twenty-one of them, giving the more important state trials down to 1781, were edited by TB Howell, and the remaining volumes, bringing the trials down to 1820, by his son Thomas Jones Howell (d. 1858).
Starting in 1841, the Howell’s State Trials citations begin to take over, and they dominate U.S. judicial citations from the 1850s through the 1960s. The earlier reference to “11 St. Tr. 313” is quickly replaced by the later citation to 19 Howell’s State Trials 1029. That version of Entick that appears in Howell’s State Trials has the following explanation of its source:
The State of the case, with the arguments of the counsel, is taken from Mr. Serjeant Wilson’s Reports, 2 Wils. 275. But instead of his short note of the Judgement of the Court, the Editor has the pleasing satisfaction to present to the reader the Judgment itself at length, as delivered by the Lord Chief Justice of the Common-Pleas from written notes. It was not without some difficulty, that the copy of this Judgement was obtained by the Editor. He has reason to believe, that the original, most excellent and most valuable as its contents are, was not deemed worthy of preservation by its author, but was actually committed to the flames. Fortunately, the Editor remembered to have formerly seen a copy of the Judgment in the hands of a friend; and upon application to him, it was immediately obtained, with liberty to the Editor to make use of it at his discretion. Before, however, he presumed to consult his own wishes in the use, the Editor took care to convince himself, both that the copy was authentic, and that the introduction of it into this collection would not give offence. Indeed, as to the authenticity of the Judgment, except in some trifling inaccuracies, the probable effect of careless transcribing, a first reading left the Editor’s mind without a doubt on the subject. But it was a respectful delicacy due to the noble lord by whom the Judgment was delivered, not to publish it, without first endeavouring to know, whether such a step was likely to be displeasing to his lordship; and though from the want of any authority from him, the Editor exposes himself to some risk of disapprobation, yet his precautions to guard against it, with the disinterestedness of his motives, will, he is confident, if ever it should become necessary to explain the circumstances to his lordship, he received as a very adequate apology for the liberty thus hazarded. Hargrave.
In contrast to citations to Howell, the citations to the English Reports version start appearing only late. The first Entick citation I found was in 1962 in New York state court. See Application of Beatty, 33 Misc.2d 1096, 228 N.Y.S.2d 955, (N.Y.Sup. 1962).
So for most of U.S. History, the Howell’s State Trials version was dominant, but I don’t know which version was seen in the colonies in the late 18th century. Or if any formal version was seen, for that matter. Perhaps it was only read about in the newspapers and pamphlets of the era, and I don’t know exactly how it was reported in newspapers in the colonies leading up to the ratification of the Fourth Amendment. Or perhaps the Wilson’s Reports version was the one that was best known, with the catch that I don’t know how that version reported the judgment.