ARREST JOHN ENTICK!

For much of his life, John Entick was an almost entirely uncontroversial figure who lived peacefully in Stepney, in the eastern part of London. He was born sometime around 1703, and seems to have been a studious child with a special aptitude for the study of languages. As a young adult, he published instructional books for students of Latin and Greek. If he expressed any aggressive opinions in those early years, they were on the subject of religion. In 1729, he published a strident volume titled The Evidence of Christianity Asserted and Proved from Facts. For much of the rest of his adult life, Entick wrote, tutored, and worked as a proofreader, but he published nothing of great significance. He announced his intention to prepare a new volume of the works of Chaucer in 1736, yet he ultimately produced nothing of the sort.Footnote ¹¹ But in 1754, Entick began a comeback on the public scene that would start him on the road to his eventual arrest. The erstwhile hermitical scholar lost whatever inhibitions he had once had about airing his views in print—a shift that may be partially attributed to his extensive and high-level involvement with Freemasonry, a movement that tended toward opinions that were compatible with those contained in Entick's polemical articles.Footnote ¹²

In 1755, Jonathan Scott and John Shebbeare hired Entick to write for the Monitor, thereby giving him a new ability to reach his public in larger numbers and with greater frequency. Along with his colleagues at the paper, Entick did not shy away from criticizing the British crown, even after the nation became entangled in the far-reaching military conflagration of the Seven Years' War. His views on empire were made abundantly clear in his history of the British Navy, which appeared in 1757. According to Entick, commerce was not merely an integral part of a successful empire—it was the entire point of having an empire in the first place. Other imperial practices, such as the assignment of governmental officials or the application of military force, could be judged only in the context of how they served or acted against the general welfare of the British commerce. Naval power, above all other types, was best suited to serve as a guarantor for that commerce:

In the most basic terms, Entick and his associates saw little value in the application of state power per se. They suggested that it could be used for good ends, such as the extraction of better commercial terms from other governments or the acquisition of important ports and resources. But they also believed that it could be counterproductive if politicians wasted their military power on displays of imperial strength and grandeur or warring without any particular commercial goals in mind.

The writers of the Monitor worried about the outcome of the Seven Years' War. They were vehemently opposed to “the effusion of blood and treasure, which a war draws out of the vitals of a nation,” unless something of unarguable value could be extracted from the defeated French and Spanish. They argued that “those who steer the helm of state and are entrusted with the management of the public interest” must obtain a peace settlement that left Britain's enemies with the distinct impression that although no further warring was necessary, the British military stood ready to punish any nation that might challenge it or attempt to interfere with British commerce.Footnote ¹⁴ “There is but one certain unerring rule in politics,” they declared: “What you do, do it with all your might. And they that do otherwise, do wrong.”Footnote ¹⁵ It was a forceful ethical judgment. The Monitor's writers argued that Britain's military efforts must be sufficiently overwhelming to completely defeat its enemies and to remove their capacity to retaliate against British colonies or commerce. Otherwise, there was no point in acting at all.

In the spring and summer of 1762, the Bute administration seemed content to combat the bellicose opinions presented in the Monitor by fighting back with propagandistic journalism of their own that argued for a quick end to the war. As John Brewer argues, Lord Bute was apparently not afraid to involve himself with the “seamy side” of Grub Street if it served his political purposes.Footnote ¹⁶ To that end, the Bute Tories engaged the services of Tobias Smollett as editor of the Briton, a semiofficial mouthpiece for their administration.Footnote ¹⁷ But this strategy proved to be insufficient. By the fall of 1762, the continued effectiveness of the Monitor's aggression against the government, as the pacifistically inclined Duke of Bedford headed off to Paris for the peace negotiations, led them into serious trouble. The issue of 11 September 1762 savaged the idea that Britain might surrender its wartime conquests when the Bourbons had been so badly defeated over the past few years. The Monitor's writers called the French and Spanish “the mortal enemies of our liberty and religion” and rightly warned that Bourbon politicians would use the peace to rearm and to eventually strike back against British commercial interests. The impact on British trade would be grim. Because Entick and his colleagues felt that the protection of commerce was the most important governmental responsibility, they felt that a premature ending to the war was a dereliction of duty and could eventually lead to the destruction of the British Empire. “Our murmurings and dissatisfaction can be allayed by no other means than a successful war, which shall . . . carry peace at the point of a sword to the gates of Paris and Madrid,” they said.Footnote ¹⁸

For the writers of the Monitor, there was little choice. Either the French and Spanish Empires would be greatly diminished and dominated by the British Navy, with many of their former possessions in British hands, or the continued existence of British power would remain in serious doubt. At the very least, a mere partial defeat seemed to suggest an immense, ongoing military commitment to keep the two Bourbon kingdoms contained. “The war . . . has required an immense expense to make it advantageous to the nation,” the writers of the Monitor conceded. But they also suggested that the overall financial health of the British economy was greatly superior to what could be found in the two Bourbon economies. They further argued that any wartime expenses would ultimately be recovered because the economic benefits of a larger and more secure empire would be considerable.Footnote ¹⁹ Put simply, the war placed a temporary strain on the British economy, but the financial penalty would prove to be much heavier for the French and the Spanish over the longer run.

By October 1762, the Monitor's writers had stepped up their attacks on the legitimacy of the British government. Entick and his associates railed against what they perceived as the domination of the government by the high aristocracy and the subjugation of the House of Commons:

In these criticisms, they were expressing their dismay that Bute was pursuing an immediate peace without allowing a proper parliamentary debate on the matter. After all, there were many prominent dissenters. William Pitt's views on the war were remarkably similar to those seen in the pages of the Monitor. Before his departure from the cabinet the previous year, Pitt had called for aggressive action against the Spanish Empire, which was meant to irrevocably alter the balance of power in the Atlantic in favor of Great Britain. Either the Bourbons would come to the negotiating table from a position of extreme weakness, or it would not yet be time to stop the fighting. But in the fall of 1762, there was already decisive political momentum in Britain toward negotiating for peace.

The Duke of Bedford, who was the British negotiator at the Peace of Paris, was part of the Tory administration that was led by Bute. The Tories took a dim view of the aggressive war planning that had been embraced by Pitt and his supporters.Footnote ²¹ So by the time that Entick found his home invaded by Nathan Carrington and his men, the Peace of Paris was a fait accompli. When the House of Commons voted to approve the treaty on 9 December 1762, the final tally was 319 in favor and only 64 against. Daniel Baugh suggests that these numbers do not give a good indication of how contentious the issue remained, in part because many members likely voted in favor mainly because they feared the consequences of voting against the clear wishes of the young George III and his favorite, Lord Bute.Footnote ²² In any case, with the door obviously closed to further military action against the Bourbons, the continued complaints and anti-aristocratic rhetoric in the Monitor could only serve to attack the authority of leading British politicians. For the moment, it could not change the state of affairs—the fundamental decisions about how to situate the British Empire in the post-war period had been made.

To Lord Halifax and his colleagues, it must have seemed both pragmatic and necessary to do whatever was possible to suppress any obvious dissent to the Peace of Paris once the war was over. But they clearly overreached, as they apparently underestimated the vitality with which their opponents would resist the crown's power. The arrest of the Monitor writers, along with the later detention of John Wilkes for his writings in the North Briton, drew significant public attention to the government's supposed rights to invade private homes with general warrants and to imprison people for voicing opinions that criticized the government. As a member of parliament, Wilkes fought back in court but focused his main efforts in the realm of politics and public opinion, with strong support from the Society of the Supporters of the Bill of Rights. As a writer of lesser stature who was connected to that movement but did not enjoy parliamentary privilege, John Entick had fewer tools at his disposal. He did continue to openly express his dissent by writing a General History of the Late War in 1763, a book that reiterated his harsh criticisms of the crown's wartime management.Footnote ²³ But far more important was his choice to take legal countermeasures against the crown and its agents, in spite of the fact that his case did not initially attract the degree of public attention that Wilkes enjoyed. The fact that Entick was not an especially important person actually served to increase the importance of his case against the crown. While Wilkes leveraged his privileged political status to regain his freedom, Entick had to rely more on an incisive legal examination of the fundamental issues in play. By suing Nathan Carrington and his men for trespassing, he placed the crown's rights to invade private property under a legal scrutiny that was more intense and sustained than any that had come before.

Entick's case would be greatly assisted, of course, by the public and parliamentary debate that erupted in the wake of Wilkes' imprisonment. The essence of this debate was neatly encapsulated in an anonymous pamphlet titled A Letter to the Earls of Egremont and Halifax, which appeared on 19 May 1763. It took on the issue of governmental seizures of private papers by painting a distressing portrait of a prototypical police state. “It is not [only he] whose papers are seized who is distressed by it,” the anonymous author charged, “but every person in the least connected with him, may by the most accidental circumstances imaginable be involved in the consequences.”Footnote ²⁴ Without protected space for confidential dealings or furtive personal appetites, there could be no real trust between individuals. To expose British society to such governmental inquest would “render life insupportable, may dissolve every tie of nature, loosen every bond of society, and put an utter end to the comfort of existence.”Footnote ²⁵ The pamphlet also called for the laws on this matter to be clarified. “Every true friend of liberty,” its author announced, “will anxiously desire to see this question have a fair trial, that he may know exactly how the law stands and be fully apprized of his danger so that all may defend against it the best they can.”Footnote ²⁶

In the fight to manage a growing empire and constrain Bourbon absolutism around the world, the British Empire was seemingly in danger of slipping into the same kinds of governmental temptations that the British had long associated with the allegedly tyrannical Spanish. For Entick and his colleagues, it was bad enough that the British government was seemingly unwilling to unleash a much broader campaign to free the oppressed subjects of the Bourbon crowns. But if Lord Halifax felt at liberty to unleash unrestrained inquisitorial license upon the private homes of London, what difference was there between the Spanish and British crowns? This tension was making a crisis of alterity in the self-image of the British Empire—one that was keenly watched by British subjects on both sides of the Atlantic.Footnote ²⁷ It would subsequently be eased to some extent by the rapid evolution of British law in the years between 1762 and 1765, culminating with the landmark judgment of Entick v. Carrington. But before we further explore the legal pathway to the decision that was ultimately handed down in 1765, let us delve a little deeper into the visions that were being expressed at the end of the Seven Years' War about how the British military might deal with the Spanish Empire, and let us consider how we might understand John Entick's position within that context.

HOW TO DISMANTLE AN EARLY MODERN EMPIRE IN ONE YEAR OR LESS

Making sense of the debate over the policy making of the British Empire, especially with respect to the usage of military power, has never been an easy task. The distinguished naval historian Daniel Baugh has suggested that although the “general attributes” of Britain's “highly distinctive system of national security” were broadly known, the “integrating logic behind it” was difficult to describe and not well understood.Footnote ²⁸ He argued that England depended on a “blue-water policy” that called upon the navy to protect the country by dominating the seas immediately around Great Britain. This strategy was cost-effective, and minimized the need for land forces. There was also an inextricable relationship between Britain's oceangoing commerce and its naval power, as the two supported and protected each other in various ways.Footnote ²⁹

However, an important effect of this policy was that major wars against other European powers would have to be won through a process of “financial attrition,” in which the superiority of the British naval, commercial and financial systems would gradually grind its enemies down.Footnote ³⁰ For the most part, this blue-water strategy explained how the Seven Years' War was won. But after 1759, when it was clear that Britain would win the war, there was an anomalous shift toward an interest in the much broader use of military force, and not only overseas. At the highest levels of government, William Pitt was the standard-bearer for this idea.Footnote ³¹ The degree to which the plans promoted by both Pitt and the writers of the Monitor deviated from some of the fundamental tenets of blue-water policy shows us how unusual this moment was in the history of the British Empire and how radical their desires were. Their plans were neither inexpensive nor reliant on a gradual wearing down of residual Bourbon power. Within Baugh's framework, their essential aim was to make the Bourbon defeat so complete on both land and sea that a less expensive blue-water policy could be successfully resumed upon the end of hostilities and relied upon to preserve the peace over the long run through the exercise of British hegemony.

However, the debate over the fate of the Spanish Empire was not simply about the amount of military force that the British should apply in 1762. The imperial personalities who presented their views on the matter held many different opinions, each with its own nuances and sometimes even apparent contradictions, but I suggest that they tended to fall into one of two loose categories. The key distinction between these two groups was that they held different views on whether the state would provide the main strategic impetus for planning and administering new conquests or only respond to imperatives that had already been established by existing commercial interests.

The first was the set of observers, such as William Paterson and Henry Ellis, who felt that the best way to protect and expand the national interest would be to use the state and armed forces as the vanguard of imperial expansion, to be closely followed by economic development according to the usual British pattern. I will refer to them here as “state-vanguard imperialists.” They often had direct experience with government or the civil service, and that experience helped them see empire through a lens in which government provided the impetus for further development. This perspective did not make them hard-core mercantilists, as they did not necessarily hold the interests of the state to be supreme. Rather, it was more a matter of acknowledging the critical role of government in supporting and guiding the expansion of free commerce, either through warfare or the peacetime threat of military action. In 1760, at the height of the Seven Years' War, Great Britain was spending a staggering 14 percent of its national income on warfare—an amount far higher than any major power today.Footnote ³² State-vanguardists recognized how much this power could be used to shape the contours of a growing empire that would be both territorial and commercial.

The other group, which included the likes of John Entick and his associates at the Monitor, as well as policy advocates such as Alexander Wright, were generally non-participants in governance during Bute's Tory administration. If they had governmental linkages, it was more in the mold of the confrontational MP John Wilkes than the more aristocratic men who enjoyed posts in cabinet or as colonial governors. They tended more toward the position that commercial expansion should be the true vanguard of empire, to be backed up only where necessary by the intelligent application of military force. They could also be enthusiastic about using the British armed forces to deprive other Europeans of their overseas colonies—but with the aim of then allowing traders to establish commerce with a newly independent country rather than establish a new British crown colony. I refer to this second general group as “commerce-vanguard imperialists.” Neither of these two terms appear in documents from the period. Rather, they are simply a way of roughly identifying some of the parameters of the debate for the purposes of historical analysis.

Both of these general perspectives can be seen in the discussions over how Britain should plan its attacks on the Spanish Empire in 1762. Both general groups acknowledged that the Spanish Empire was essentially antithetical to the British mode of liberal commerce and, as a result, should be combated. But they differed on how that should be done. Perhaps unsurprisingly, given their stronger connections to the crown, state-vanguard imperialists generally took the lead in the strategic process and managed it in both wartime and peacetime. But the commerce-vanguard imperialists tended to argue that the plans of state and military leaders were either misdirected, generally insufficient, or simply too reliant on the whims of central authority to effectively provide for the protection and expansion of the British trade. They favored either limited, specific military strikes or vast but temporary military escalations that would simply obliterate competing empires. For example, as far as the writers of the Monitor were concerned, a massive military enterprise was needed to purge the world of Bourbon power. It would clear the way for traders to lead the way into new waters, backed up by the post-war resumption of an inexpensive blue water policy that would require only minimal state intervention on a regular basis. In their view, this scenario would not be possible if the Bute Tories refused to severely limit the restoration of Bourbon power at the Peace of Paris.

Out of all the places in the Spanish Empire, the one site to be almost universally promoted as a necessary target was the city of Havana. As a result, much of the debate over how to act against Spain in 1762 was focused on that region. Many British subjects who had direct experience in the Americas identified Havana as a central linkage for Spanish commerce, and as a naval base that ultimately supported the Spanish sphere of influence in the entire region. From there, the Spanish were capable of supporting a larger network of ports that were capable of interfering with British activities in the Caribbean and up the eastern coast of North America. Commerce-vanguardists such as John Entick tended to support the removal of the Spanish colony in Cuba, but it was the state-vanguardists who were especially enthusiastic about Havana's potential as a base for the expansion of British state power in the Americas.

STATE-VANGUARD VISIONS AND THE PRIZE OF HAVANA

Among the most carefully considered state-centric visions for the empire came from William Paterson, Britain's surveyor-general in the Leeward Islands, who wrote perceptive analyses about the future development of the empire to his superiors at the Board of Customs.Footnote ³³ His overall view of the situation was that the crown should make broad, long-term strategic decisions, even if they worked directly against the short-term economic interests of British colonists. Paterson argued that the defeated French Navy was incapable of preventing Britain from taking and annexing almost anything that it wanted in the Americas, at least for the time being.Footnote ³⁴ As a result, he believed that the British military should open a massive campaign against the two Bourbon crowns and effectively remove the French from the western side of the Atlantic Ocean. Not only should Britain keep its new Canadian territories, but it should also seize and maintain control of all of the sugar islands in the Caribbean. Paterson offered two lines of reasoning for his plan. First, he rightly anticipated that the French would want revenge for their heavy defeat in the Seven Years' War, and he suggested that it would be much more difficult for the French to exact that revenge if they no longer possessed any major American bases of operation. He also argued that France's American possessions were its “greatest nursery for sailors,” and that their loss would make it significantly more difficult for the French navy to rearm and once again threaten the British.Footnote ³⁵

The Spanish would also suffer in Paterson's vision of Britain's imperial future, although on a somewhat lesser scale. He warned that it would be too difficult to mount any serious campaigns against either Peru or Mexico, as it would take too heavy an investment to conquer the port cities and to then move inland to capture the mines. Instead, he thought that Britain should harass the Spanish off their European coasts, thereby disrupting their trade and preventing them from reinforcing their garrisons in the Americas. But Spain was not to escape without losing territory. Paterson liked the idea of planning a specific, narrowly targeted attack that would severely damage Spain's American interests without requiring a broad and heavy British military deployment. He emphatically declared, “let us exert our utmost to get possession of the Havana, and Island of Cuba, which is a very practicable scheme,” which he felt could be done “at a much cheaper relative rate both in men and money” than an attack on any other Spanish colonies, “to our great benefit, and to the great loss and mortification of the Spaniards.”Footnote ³⁶

Paterson had a strong grasp of Havana's broader strategic value. Because it was fairly close to British possessions in the Caribbean and to the string of colonies along the east coast of North America, it was not difficult to imagine that it could be successfully and permanently integrated into the British Atlantic supply and economic system. But even more importantly, Paterson projected that a British Havana would be able to exert “absolute control and command” over Spanish and French trade in the Caribbean region, assuming that Britain was able to remain the supreme European sea power.Footnote ³⁷ One of the most important routes out of the Caribbean passed through the Gulf of Florida, as the Gulf Stream coursed through that area on its way out into the North Atlantic Ocean. In an era when European ships were still totally dependent on wind and ocean currents to reach their destinations, a British squadron at Havana would be in the perfect position to observe and potentially interdict enemy shipping in the Gulf of Florida. In combination with elements of the British fleet from Jamaica, Paterson argued that Britain “should, at all times, be able to greatly distress” the Spanish and the French “in case of any difference or dispute.”Footnote ³⁸ This strategy would not purge the Bourbons, but it would create a British military and economic hegemony in the Caribbean.

Other leading voices had similar opinions about the strategic value of an assault on Havana. One such voice belonged to Henry Ellis, who was a popular and accomplished former governor of Georgia. During the final phase of the Seven Years' War, he fashioned himself as one of the most knowledgeable and influential specialists on colonial affairs in London.Footnote ³⁹ When the Anglo-Spanish portion of the war broke out in January 1762, Ellis wrote with advice for the Earl of Egremont, then serving as secretary of state for the Southern Department. He began by noting that the war had greatly fatigued Great Britain and nearly exhausted its financial reserves. If the crown allowed the war to continue for much longer, Ellis suggested, the country might suffer serious political and economic damage that could not easily be reversed. Yet he was not prepared to advise an immediate armistice—there was work that remained to be done. But it was a path that would be “the easiest, the least expensive, . . . the most effectual towards embarrassing our enemies,” and “the most certain way of giving security to our numerous colonies, which will otherwise require great assistance, for none of them are capable of defending themselves” without military assistance from Britain.Footnote ⁴⁰ In Ellis' opinion, the best way to achieve these goals was to attack and take permanent possession of Havana. Once removed from that city, the Spanish would no longer be able to interfere with British colonies ranging from the Carolinas and Georgia to the Bahamas to Jamaica.

Ellis also echoed Paterson's views on the long-term economic benefits to be had from a permanent annexation of Havana. In his letter to Egremont, he explained his position: “It will be obvious to your lordship,” he claimed, “that whatever power is in possession of the Havana” and held naval superiority would enjoy almost total control over shipping in the Gulf of Florida. Like Paterson, Ellis believed that a British seizure of Havana would do great and permanent harm to both Spanish and French economic interests in the Americas:

In the most basic terms, both Paterson and Ellis are good examples of men whose vision for the immediate and longer-term future was that the British Empire would become hegemonic, at least within the Atlantic world. By expelling the French and severely handicapping the Spanish, they hoped for indefinite domination of the region, with a British fleet training its guns on what remained of its rivals from a new territorial base at Havana.

In the end, the British crown did choose to attack and occupy Havana in the summer of 1762, and concentrated much of its military capacity in the Atlantic to achieve that one aim. But the hopes that Paterson and Ellis had held for a permanent annexation were not given serious consideration during the negotiations for the Peace of Paris that took place that autumn. The Spanish government was certainly shocked and dismayed by the loss of such an important colonial hub, but the victory also came at a significant price. The Earl of Albemarle, in command of the British invasion and occupation force, found his forces so depleted by injury and disease that the entire endeavor was in danger of failure. “My army is very much reduced and the few called well are by no means fit for immediate or severe service,” he wrote.Footnote ⁴² Albemarle was unable to release any garrison forces for participation in further military adventures against the Bourbons in spite of the fact that such operations could not proceed without them.Footnote ⁴³ Havana had certainly been captured and insulted, but the British military was so exhausted by the effort that it brought its broader offensive in the Atlantic to a halt. Nevertheless, the British occupation had a significant normative impact on Havana and showed what state-vanguard imperialism could do, most significantly because Britain's temporary governmental management included new regulations against bribery of officials and improved trade regulation, which increased activity at the port and pleased the Cuban commercial community.Footnote ⁴⁴ These were indications of the kind of active role that the state could play in reshaping formerly Spanish territory into a more British political and economic system, and they provide us with a sense of how broad, long-term British state-vanguard imperialism might have functioned in Latin America.

As much as these developments might have seemed like appealing harbingers of a permanently British Havana, Paterson and Ellis' vision was not seriously considered by the crown, which chose a very conservative and pacifistic stance in the fall of 1762. At the Peace of Paris, both the French and Spanish contingents made it clear that the return of Havana was an absolutely essential component of any peace treaty, and the Duke of Bedford readily accepted that condition.Footnote ⁴⁵ In any case, the cost of its incorporation was most likely prohibitive for an already overextended British military at that particular time. The vision that the state-vanguardists proposed would have required an ongoing vigilance by an expanded British military, even beyond the scope that the crown actually attempted to implement in the years between the Seven Years' War and the American Revolution. But even that much would have been insufficient for John Entick and the more aggressive of the commerce-vanguardists.

Looking back on the British invasion of Havana in his General History of the Late War, Entick criticized the crown for being too slow to launch the invasion of Havana. In his view, the fleet had been “retarded so long that there could be little prospect of advantage from it.” Even more acidly, he charged that “the slenderness of the force sent on this expedition” revealed that the crown did not embrace the enterprise “with any spirit,” nor that it was actually “intended to act for advantage.”Footnote ⁴⁶ Although Entick praised the conduct of the British forces that fought at Havana, he characterized them as having made the most of a bad situation with the allegedly insufficient forces provided by the crown. This view was entirely consistent with the opinions voiced in 1762 in the pages of The Monitor, and it was one that Entick continued to express freely through several editions of his General History during the 1760s and early 1770s. But given the genuine limitations of Britain's financial and military power, Entick was asking for something extremely radical and probably implausible. Accordingly, his position was unlikely to be seriously considered by the crown if even the more modest military proposals by Paterson and Ellis to annex Havana were dismissed, especially with the peace process under the direction of the pacifistic Duke of Bedford.

COMMERCE-VANGUARD IMPERIALISTS AND THE REMOVAL OF BOURBON POWER

The group of imperial opinions that I have categorized as falling into the rough category of commerce-vanguard imperialism share the distinctive feature of seeing state power as little more than a short-term solution to immediate and acute foreign interference—not as a factor that would provide leadership for the direction of future commercial development. Rather, once space had been emptied of Spanish or other European interference, British commerce would naturally prevail in its own directions and at its own pace. This stance was at the heart of what John Entick and the writers of the Monitor were arguing when they called for the effective removal of Bourbon power. But not all commerce-vanguard thinkers were so aggressive. One good example is Peter Collinson, whose family had long been involved in the Atlantic cloth trade. He did not deny Havana's central role in the maintenance of Spanish power in the Caribbean region. But rather than ask for a direct assault on Havana, he called for the British military to focus on a more immediate threat: the Spanish colony of St. Augustine, Florida.

Collinson said that the port there was “a thorn in our sides” and a haven for escaped slaves and “our bad people” who were trying to evade their financial responsibilities in British colonies. Even worse, as he saw it, St. Augustine served as a base for Spanish ships to engage in illegal trade and other “depredations” against British settlements as far north as the Carolinas.Footnote ⁴⁷ In essence, Collinson identified the suppression of Spanish power in the region as a necessary precursor to the expansion of British settlement into the southern part of North America. He did not ask for the crown to actively manage and plan that settlement; he simply wanted the military to end Spanish interference with British trade and settlement. Rather than follow a strategic plan to cut directly to the heart of Spanish power in the region, he preferred to ask the military to deal with Spanish threats that were directly troublesome for British settlers and traders in 1762.

Other British opinions that we might consider as being in favor of commerce-vanguardism were, like that of John Entick, far more aggressive in their proposals to neutralize Spanish centers of power without introducing active management by the British state. Probably the most extreme of them all belonged to Alexander Wright of Bath, who wrote extensively about how Britain could bring about the almost complete collapse of the Spanish Empire without taking on very many lasting responsibilities for governance. In his voluminous correspondence with the Earl of Bute, Wright declared that Spain would be “utterly unable to prosecute” a war against Great Britain “if an effectual stop [was] put to the introduction of treasure from the Kingdoms of Mexico and Peru.” Cutting the Spanish link to their supply of bullion could, in Wright's opinion, lead to British economic and political hegemony in the Caribbean, and to the eventual capture of both Havana and Mexico.Footnote ⁴⁸ Wright's vision did not stop there. He advised Bute that much of the rest of the Spanish Empire in the Americas was poorly defended, and claimed that it functioned solely on the basis of lazy Spanish exploitation of enslaved indigenous populations. He described Chile as being so lightly defended that it would fall with only a minimal British military exertion.Footnote ⁴⁹ But even more elaborate was his description of what should be done with Peru.

Wright believed that British forces should invade Lima and eliminate the Spanish defenders there. Once that had been done, he calculated, the British could end the “insolent oppression” of the Spanish and banish “every native of Old Spain, or any other person . . . that shall be judg'd improper to remain.”Footnote ⁵⁰ In place of a Spanish colony would be “an independent kingdom,” but one that was “dependent on his [Britannic] Majesty for support.” This change would “greatly weaken Spain” and “be a very considerable addition to the power of Great Britain, by enjoying the whole commerce of Peru” without requiring the direct expense of governance.Footnote ⁵¹ But first, steps would have to be taken to ensure the establishment of a stable and pro-British state that would elevate both the indigenous population and the Creole elite to become equal beneficiaries and protectors of their new independence.Footnote ⁵² Wright's conception of the Creole elite was that they were distinct from their Iberian counterparts when it came to their spirit and their personal interests, despite their common ethnic and linguistic heritage as well as their shared Catholicism.

This understanding was part of his broader argument that all residents of Spain's American territories, save for royal officials and military officers who had come directly from Spain, were obviously and necessarily oppressed by the Spanish crown, which was obstructing what Wright saw as their fundamental right to engage in free commerce. In other words, Wright sincerely believed that Creole economic needs and freedoms clearly trumped any other traditions or influences. For him, the economic oppression of the individual was so much more significant than any other form of mismanagement or oppression that any thinking person would immediately and gleefully shuffle it off in favor of free trade. The larger idea here was that as long as the world remained free of Bourbon political meddling and economic restrictions, Britain's naval and trading advantage would place it in a hegemonic position. There was no need to strain British power to its absolute limits in pursuit of a much larger territorial empire.

During the final months of the Seven Years' War, as well as the first few years of peace, this idea was heartily endorsed by the officials of the East India Company (EIC)—an organization that exhibited an intriguing ambivalence when it came to methods of imperial expansion. Within the Indian subcontinent, the EIC tended to operate in a state-vanguard mode in the 1750s and 1760s, annexing new territories and acting as a de facto extension of the British crown.Footnote ⁵³ But when it came to eastern territories beyond India, the EIC was clearly more supportive of a commerce-vanguard approach. In short, the Company saw empire through institutional lenses that were generally compatible with yet different from those of the state. Although it was certainly in favor of state actions that could protect British trade around the world, the directors of the EIC had little appetite for speculative military adventurism in 1762 when the opportunity presented itself. That attitude was made abundantly clear that year when Colonel William Draper took advantage of the political climate to promote a plan to attack Manila that he presented as an example of state-vanguard expansion toward the Pacific region, but that was mostly inspired by his desire to use state power for his own personal enrichment. It quickly became clear that the execution of Draper's plans would require the collection of military assets from India and the participation of the company's personnel. But the company directors worried that wild military stabs into the barely known reaches of Southeast Asia might fatally compromise both their own position in India and the broader interests of the British crown in that part of the world.Footnote ⁵⁴

Writing to the Earl of Egremont, the directors agreed in principle that the seizure of Manila would be “a great national object,” and noted that its “continued possession” could “greatly extend the commercial interest” of Great Britain. They further assured Lord Egremont that the EIC would “chearfully [sic] assist in carrying this important scheme into execution so far as their abilities and the safety of their trade and settlements may allow.” Yet they also warned that “their affairs in Bengal and Madrass” were “in a very critical situation,” and that it was still difficult and expensive to protect themselves from the “enemies and false friends” that still surrounded them. At the same time, the directors worried that the further militarization of Southeast Asia could prove to be an expensive disruption to British trade, and that the EIC could be a particularly “heavy” sufferer.Footnote ⁵⁵ Major General Stringer Lawrence, the officer in command of the army in India, echoed the company directors' concerns when Draper arrived there to collect his forces. Lawrence made it abundantly clear that although he had little choice but to follow the crown's orders and provide the expedition with troops, he had fierce objections and worried that losing a large portion of his troops would cause the British position in India to relapse “into the same distressed condition” that had existed prior to their victories over the French.Footnote ⁵⁶

In the coming peace, the EIC already had enough territory to begin a phase of further commercial development in Asia without the further expansion of company or British-state governance. This attitude is expressed clearly in the narrative left by the company's officials on their way home from their unpleasant experience trying to oversee the occupation of Manila from 1762 to 1764, which was fraught with conflict between EIC officials and the British military officers who remained after Draper's departure.Footnote ⁵⁷ After leaving the city late in 1764, Governor Dawsonne Drake and his assistant, James Bean, ran into rough seas and were forced to land in Cochinchina (now the southern part of Vietnam). There, they accepted an invitation to visit the royal court of Cochinchina, where they engaged in a dialogue on future trade relations with the king and took note of the many commercial possibilities presented by such a lush, fertile land. As Bean said in his narrative, his mind was “naturally turned to commerce,” and was happy to seize “every opportunity” to make “observations for the improving (and) extending (of) any of its branches.” But he expressed no interest in making Cochinchina part of the British Empire. Rather, he made his position clear by speaking of how Britain could further its “national advantages” by developing a commercial relationship with the “opulent and independent kingdom” of Cochinchina. There were competitors nearby—in fact, Drake's crew went so far as to engage in a street brawl with sailors from a Chinese junk that was also at port. But at no time did Bean suggest that Britain needed to exert military force or establish political control in the region in order to open it for trade.Footnote ⁵⁸

These imperialists, from Collinson to Wright to James Bean, were certainly in favor of the rapid spread of the British trade. But they placed their faith in the capacity of that trade to spread without direct supervision by the state. While they expressed a belief in the usefulness of military force, it was generally to be limited to removing immediate obstructions that had been put in place by European rivals. It was not necessary to spread direct crown control over vast territories around the world or to establish an expensive, globe-spanning British military. Even the writers of the Monitor, although very aggressive in their short-term military stance, were not calling for a vast expansion of British colonial territory. Their main objective was to see the French and Spanish removed from the Americas—not so that British governmental power could be augmented but so that trade could be safely and freely conducted in former Bourbon domains.

In the fall of 1762, as the Seven Years' War was coming to an end, John Entick and his colleagues sensed that their ambitions would not be realized by the likes of Bedford and Bute. They published their criticisms under the assumption that traditional British liberty gave them every right to publicly argue that the crown should have done much more to eliminate Bourbon tyranny and secure the way for commerce in Spanish America and elsewhere. The primary ministers of the Bute administration did not agree, and reacted with an unprecedented show of force against domestic dissent. The views of the more aggressive commerce-vanguardists were simply too far from the pacifistic stance of the crown. They were arguably more divergent than any generalized opinion on empire since the Glorious Revolution and certainly at least temporarily in violation of blue-water policy, even as they sought to protect it over the long run. When Nathan Carrington arrived at John Entick's door in November 1762, the dissenters found that their perceived struggle against governmental oppression would not be fought on the battlefield against Spain. Ironically, it would be fought against their own crown in the courts of London.

THE ALTERITY CRISIS OF LORD CHIEF JUSTICE PRATT

The detention of John Entick, carried out more or less immediately after the signing of the preliminary articles of the Peace of Paris, cannot be seen as a prophylactic against immediate dangers presented by France or Spain—that war was over. Lord Halifax's warrant was about killing hopes for potential futures that could no longer come to pass. Britain would not “carry peace at the point of a sword to the gates of Paris and Madrid,” as the writers of the Monitor had demanded. It would not land troops in Chile and Peru to free the people there from Spanish oppression, as Alexander Wright had envisioned. Havana and Manila were not to be annexed; they were to be returned to Spain. Those futures were moot points, as the Treaty of Paris prohibited them in no uncertain terms. But the war left Britain with a larger and more complex empire than it had ever known. It could not be held together on an improvised, ad hoc basis, and that is why support for state-vanguard expansion was increasingly prevalent in this period.

In order to silence the strong dissent in British society over imperial management, the crown was now resorting to oppressive practices that challenged the normative frontiers of the common law in a way that was thought to be suspiciously similar to centuries old inquisitorial techniques of the Spanish crown. This problem was at the heart of the alterity crisis that was emerging. If the British had to give up their most cherished legal traditions and protections in order to govern their rapidly growing empire, what separated them from the Spanish, whom they had habitually despised as tyrannical and cruel? Entick's arrest was about centralizing authority and attempting to assert a single vision of the British imperial destiny, something that was difficult in a country that had generally allowed debate and dissent within the imperial elite since 1688. Although he was released without charge, Entick did not accept that the crown had the right to simply silence its opponents with unjustified arrests. His subsequent legal battle aimed to speak up for hardcore, dissenting, commerce-vanguard imperialists, and to make it difficult for the crown to erode the participatory legacy of the Glorious Revolution, no matter how earnestly they might have wished.

The legal views that ultimately informed the outcome of Entick's case developed over several years, especially between 1762 and 1765. His final day in court was preceded by several related cases that were also heard by the Court of Common Pleas, under the stewardship of Lord Chief Justice Charles Pratt, the future Earl of Camden. The first of these, Huckle v. Money (1763), involved a printer named William Huckle, who was merely suspected of aiding in the production of John Wilkes' infamous North Briton No. 45, the issue that led to the arrest of the controversial MP. As Eric Schnapper observes in his legal analysis of that case, there was no seizure of property or physical injury. As the plaintiff, Huckle was only seeking compensation for having been unjustly imprisoned for six hours.Footnote ⁵⁹ But Lord Chief Justice Pratt's comments on the case reveal that his broader views on governmental intrusion were already developing. Although punitive damages were still extremely rare in the common law at the time, the jurors viewed the crown's behavior as so “tyrannical and severe” that they called for Huckle to receive £300 in damages for his suffering. “I am of the opinion the damages are not excessive,” Justice Pratt commented. “To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition, a law under which no Englishman would wish to live an hour.”Footnote ⁶⁰ This statement, which struck at the heart of the matter, was a bold invocation of the perceived alterity between traditional English and Spanish legal practices. In Justice Pratt's oblique suggestion, the Spanish enemy that many subjects of the British Empire had been calling to annihilate to make the world safe for British liberty and commerce might have already infected the crown of Great Britain with its inquisitorial ways.

The general principle here was that a general warrant, a broad and inquisitorial license that named the crime of libel but failed to mention the names of any specific perpetrators, was a dangerous perversion of British liberty. Pratt reinforced that view in December 1763, when the Court of Common Pleas heard the case Wilkes v. Wood, in which John Wilkes made his own case against the intrusion of Robert Wood, the royal messenger who had led the force that invaded his home and arrested him earlier that year. One of Wilkes' counselors, Serjeant Glynn, highlighted the importance of the case by arguing that “the case extended far beyond Mr. Wilkes personally.” If Wood's intrusion were “found to be legal,” he warned, it “would shake that most precious inheritance of Englishmen.” Like Pratt in Huckle v. Money, Glynn explicitly defined the nature of the British common law in terms of its alterity to the laws of Bourbon lands. But he went even further, to the point of suggesting that the escalation of the British crown's power might even be surpassing the intrusive standards of those enemy lands. “In France or Spain, even in the Inquisition itself,” he warned, “they never delegate an infinite power to search, and . . . no magistrate is capable of delegating any such power.”Footnote ⁶¹

Justice Pratt agreed with Glynn's position. If the secretary of state could give messengers a general warrant to break into private property “to search wherever their suspicions may chance to fall,” Pratt feared that liberty was under grave threat in British domains. “It certainly may affect the person and property of every man in this kingdom,” he argued, “and [it] is totally subversive of the liberty of the subject.” The jury agreed wholeheartedly, and awarded Wilkes the considerable sum of £1000 in damages after Pratt reminded them that damages could be used not only to compensate victims but also “as a punishment for the guilty.”Footnote ⁶² The general principle that general warrants were offensive to British law was subsequently reaffirmed in the case Leach v. Money (1765), which was decided by the Court of King's Bench. Dryden Leach was another of the printers falsely accused of producing the North Briton's infamous No. 45. The court upheld his claim against the royal messengers on the basis that he was, in fact, completely uninvolved in the matter. But Chief Justice Lord Mansfield echoed Pratt's earlier sentiments by saying that it was “not fit that the receiving or judging of the information should be left to the discretion of the officer.” Instead, “the magistrate ought to judge, and should give certain [specific] directions to the officer.”Footnote ⁶³ So even before John Entick's case reached its dramatic conclusion, the chief justices of two of the highest courts in Great Britain had expressed their discomfort with the crown's behavior. As both Pratt and Glynn suggested in their remarks, a crisis of alterity was underway and it stood as the court's responsibility to ensure that British law rejected any supposedly tyrannical Bourbon influences and remained mindful of its own traditions of liberty.

ENTICK V. CARRINGTON AND THE COMING OF LEGALLY PROTECTED PROGRESSIVISM

On 2 November 1765, John Entick finally received a decisive, precedent setting judgment from the Court of Common Pleas in his favor against Nathan Carrington and the other intruders who ransacked his house three years earlier. Chief Justice Pratt, now elevated to Earl of Camden, read out the decision. Although he recognized the potential damage that libelous publications could inflict on the public interest and the security of the empire, Lord Camden firmly rejected the claim that Lord Halifax had the authority to seek out and act against seditious opinions in private papers before they could be published and brought into the public view. “The law,” he announced, “never forces evidence from the party in whose power it is. When an adversary has got your deeds, there is no lawful way of getting them again but by [a legal] action.” In Camden's judgment, Lord Halifax's warrant was “wholly illegal and void,” as it enjoyed no basis in either statute or precedent.Footnote ⁶⁴ No matter what sedition the crown suspected of festering in private homes, it could not simply seize private papers at will.

Entick v. Carrington was particularly clarifying on the issue of governmental violations of personal privacy because unlike the previous, related cases it did not concern the issue of general warrants. Instead, the warrant that had led Carrington to Entick's door had specifically named him as the offending subject and ordered his arrest. For that reason, there were no procedural warrant issues at stake, and the court could focus on the underlying issue of whether or not it was legal for the crown to make such a bold intrusion into Entick's home and such a comprehensive inquest into his private thoughts. Camden offered a number of important rationales for his opinion. He decided that a government must have a strong and specific justification to seize an individual's property, even when that person had been involved in the production of libelous materials. He also decided that because the common law protected individuals from incriminating themselves, it was particularly offensive for the government to seize and examine private papers to use as evidence. To do so would entirely expose that person's inner life for the crown to see, even when it came to matters that did not relate to the original investigation.Footnote ⁶⁵ As Donald Dripps argues in his legal analysis of the case, Camden's opinion established that Lord Halifax's warrant was an excessively general document that called for an unregulated expropriation of Entick's private papers. But perhaps worst of all, it was fundamentally inquisitorial, and forcibly revealed the victim's inner mental processes to agents of the crown.Footnote ⁶⁶ During the trial, Serjeant Glynn, now representing John Entick, also echoed his earlier invocation of Spanish tyranny from Huckle v. Money. He vividly argued that the crown's actions were “worse than the Spanish Inquisition, for ransacking a man's secret drawers and boxes to come at evidence against him is like racking his body to come at his secret thoughts.”Footnote ⁶⁷

Lord Camden's ruling was an intriguing and impactful new development in British legal tradition, as it eased the crisis of alterity and finally established a firm precedent on search and seizure that was consistent with the state of British political thought. Before Entick v. Carrington, common law precedent on the invasive rights of the crown was inconsistent. There was a traditional feeling in English society that individual privacy had to give way to the rights of the broader community. Some courts had ruled against governmental invasions of private property, but there was also a general consensus that individual rights should be a secondary consideration when the security of the crown was threatened. In the seventeenth century, when English society was rife with conflict, crown officials were given broad powers to act when they suspected that a private home was concealing political or religious dissidents.Footnote ⁶⁸ In 1765, the defense fell back on that tradition, and argued that Lord Halifax had every right to issue his warrant because “such warrants (had) frequently been granted by Secretaries of State” in the past.Footnote ⁶⁹ But the Court of Common Pleas rejected that argument.

“Our law holds the property of every man so sacred that no man can set his foot upon his neighbour's close without his leave,” Lord Camden argued. “If he does, he is a trespasser, though he does no damage at all.” So the court fiercely condemned both Carrington's actions and the crown's participation in the matter. “There is no law in this country to justify the defendants in what they have done,” Camden said. “If there was, it would destroy all the comforts of society, for papers are often the dearest property a man can have.”Footnote ⁷⁰ Lord Camden made an indirect but determined statement in favor of the individual's right to disagree with governmental and imperial planning, and more directly established a precedent that confirmed the right to hold controversial and dissenting opinions on private property. But the chief justice was puzzled as to why such invasive actions had been allowed for so long. Perhaps the supposed victims were guilty anyhow and chose not to fight, he speculated, or they were innocent but simply too poor to pursue the necessary legal actions against the crown and its agents.Footnote ⁷¹ It may also be that Lord Camden had not yet fully, consciously accounted for the pace of the changes in British society that were going on around him. The scope and power of the British Empire were growing quickly, which in turn opened the way for more radical and aggressive views on imperial management. That development had important consequences for the ways in which the crown related to its people. But after a brief experiment with heavy-handed oppression, the crown would have to face the challenge of finding more subtle ways of dealing with intra-imperial dissent.

THE LEGACY OF ENTICK V. CARRINGTON

John Entick's victory in November 1765 had a significant impact. The British parliament treated the decision seriously. In April 1766, the House of Commons supported the newly established precedent by reaffirming it in statutory form. Its legislation made general warrants broadly illegal unless explicitly authorized by parliament, and provided enhanced protection for members of parliament, on the grounds that they required additional guarantees against inquisitorial behavior within the privileged realm of public political discourse. The new bill also made it clear that the search and seizure of private papers was fundamentally unacceptable in all situations, as it violated constitutional liberties inherent to the British legal tradition.Footnote ⁷² Moreover, it is broadly agreed among legal scholars that Entick v. Carrington, along with the cases that immediately preceded it, had a powerful influence when it came to shaping some of the core values of the legal system of the United States, most especially in the form of the Fourth Amendment to the US Constitution.Footnote ⁷³

In the more immediate term, Camden reaffirmed and protected the mode of imperial management that had emerged naturally from the changes in British governance that came with the Glorious Revolution of 1688. As Steve Pincus has shown, that revolution was not about maintaining established English political tradition, as historians have long tended to assume. Rather, 1688 brought a new tradition of more broadly participatory imperial governance. But in the wake of the Seven Years' War, when the British crown was flush with the aura of military power and success, it compromised that newer tradition by attempting to crush the wave of dissent of the 1760s. Camden's judgment of 1765 fundamentally safeguarded the political legacy of the Glorious Revolution and prevented the actions of the crown from eroding its broader inclusivity. The Camden judgment also ameliorated, at least in the short term, the crisis of alterity that was affecting the British self-image. With clarification of British laws on governmental intrusion, there was no immediate need to speculate about the foothold that Spanish-style inquisitorial methods had seemingly gained alongside the consolidation of British imperial power in the winter and spring of 1762–63.

But it was not just British power that was reaching a new phase in the era of the Seven Years' War. In no previous era had there been so much room to imagine what the future of the British Empire might look like. The new intensity of British power was part of the reason, but as David Spadafora has suggested, it was during the latter half of the Seven Years' War that something even more fundamental began to change in terms of how British people thought about the future. Spadafora argues that the idea “that there had been or could be improvement in human affairs generally—in culture or civilization or even happiness—was rarely expressed . . . in more than an implicit, cursory way before about 1760.”Footnote ⁷⁴ In possession of more power and influence than ever before, the British were in a strong position to consider the very definition of progress, and of how Britain could spread its particular conception of progress around the world.

Entick v. Carrington strongly implied that the Glorious Revolution, and its associated shifts in British political culture, should be more explicitly understood as progress and established as such within the body of English common law. When Lord Halifax ordered Nathan Carrington and his men to invade John Entick's home, he was making an implicit claim that a larger and more complex empire demanded a shift away from the kind of participatory process that had dominated British political culture since 1688, and a move toward a more centralized authority. By establishing a written legal precedent on the topic, Lord Camden's court firmly rebuffed any normative momentum in that direction. It is difficult for historians to know how the development of the British Empire might have differed if Camden had delivered a judgment in favor of Carrington. But it seems possible that the reinforcement of the government's right to heavy-handed action against potential political dissenters could have led the evolution of English common law in an ominous new direction. It would probably have also accelerated the already rapid disintegration between Britain and its American colonies. In any case, the consequences to the norms of British political culture would have been considerable.

So the specific question of how Britain was going to deal with the Spanish Empire—to many British minds, a tenuous entity that did not enjoy real dominion over all that it claimed—was a proving ground for a larger question over the parameters of permissible political behavior in Great Britain. Would the people simply allow the state to lead the way by projecting its military force and organizational presence into areas that were not yet falling under the influence of British commerce, as it did to some extent during the final act of the Seven Years' War? Or would there be room for commerce-vanguard perspectives even in an era of unprecedented British power? Of course, in the absence of an active state of war, there was only so much that the British state could do to coerce the Spanish. Nonetheless, if we look at what actually happened after the Peace of Paris, we see the British at least partly getting the results they wanted by threatening significant military interventions against the Spanish Empire on numerous occasions: in Honduras in 1763, the Falkland Islands Crisis of 1770–71, and in the Nootka Sound Crisis of 1789. In each case, the British were able to achieve small but important redefinitions of the frontiers of the Spanish Empire. In the case of Honduras, they were reacting to Spanish threats against a preexisting British logging operation. But in the other two cases, the existing commercial stakes were limited. The crown was leading the way into the imperial future that was state-vanguardism, par excellence. But the important fact remains that the debate over these issues was allowed to continue. Dissent remained a protected part of the British imperial experience.

To date, there has not been a great deal of scholarly work on Entick v. Carrington outside the realm of jurisprudence. But it is more than a small moment in legal history and should be treated accordingly. At first glance, Lord Camden's judgment in 1765 may not seem like an important signpost in the development of British political culture. But it clearly protected the imperial imagination and the right to dissent by projecting any number of different futures for the British Empire. Put simply, we might legitimately consider that moment to be the quiet beginning of an era of legally protected progressivism in the empire. British society and legal tradition were, in some part, rejecting some of the intrusive governmental practices that were developing at the zenith of the First British Empire and working against the political tradition of the Glorious Revolution. As British society moved forward into the late-eighteenth and nineteenth centuries, it did so with a relationship between dissent and centralized authority that certainly caused problems at times, but that also offered legal sanctuary for visions of empire that were not necessarily in step with the majority consensus or with the official view of the crown.