Other preFounding sources for the
exclusionary rule
Sir William Meredith's Reply to the Defence of
the Majority
U.S. Library holdings of this 1764 pamphlet

In the wake of the British Wilkes affair, Sir William
Meredith introduced a series of bills intended to
severely restrict royal searches and seizures. In a
contemporaneous pamphlet, he called for exclusion of
illegally seized evidence.
Lord Temple's Letter on the Seizure of Papers
U.S. library holdings of this 1763

This pamphlet, purportedly written by a prominent
member of the House of Lords, stated exclusion was
required to remedy search and seizure violations. Any
court precedents holding otherwise, wrote Temple,
were rendered during the despotic Stuart regimes.
Father of Candor's A Letter Concerning Libels,
Warrants, the seizure of Papers
U.S. Library holdings of this 1765 pamphlet

The British author "Father of Candor" (real name
unknown) wrote and had published hundreds of copies
of a pamphlet promoting the exclusion of illegally seized
evidence and linking search and seizure principles with
silence rights.
The four tables below provide U.S. library holdings of three distinct sources of law and
advocacy that were published prior to the ratification of the Fourth Amendment. Each of
these sources suggest or proclaim that exclusion of evidence is the (or an) appropriate
remedy for search-and-seizure violations.
Table 1 lays out all of the known (to me, Roger
Roots) libraries and archives which hold copies of Francis Hargrave's 1781 work
A
Complete Collection of State Trials
, 4th edition. (This list was mostly compiled from
WorldCat and ESTC but also from cites like Abe's Books, which offers two original sets for
sale under $2,000.) Hargrave's
State Trials (4th ed.) is important because it provided the
full report of the famous
Entick v. Carrington decision written by Judge Charles Pratt in
1765. In a paragraph found on the last page of the opinion in Volume 11 of the 11-volume
set of State Trials, Pratt indicated that the same principle that prevents illegally-gained
confessions from being admitted into evidence in criminal trials (exclusion) should apply
to evidence illegally gained from searches or seizures.
Language found on the last page of the
Entick opinion explicitly recognizing that the right
to remain silent is implicated by the search and seizure of papers and other evidence. "It is
very certain that the law obligeth no man to accuse himself," wrote the judge in Entick, "and
it should seem, that search for evidence is disallowed upon the same principle." Thus,
exclusion-"the same principle" applied in cases of compelled oral statements since time
immemorial-should likewise be applied in cases of illegally taken writings and other
evidence.
More than 100 of these sets survive in rare book libraries throughout the United States. I
have personally examined at least 30 of them for evidence of their prior ownership and
dates of travel to the American colonies. Thus far I have identified two sets that were
previously held by individuals with ties to the Constitution's ratification conventions. One
set held at Yale Law Library seems to have been previously owned by
Matthew
Griswold
, an early governor of Connecticut who presided over the Connecticut State
convention that ratified the Constitution. Another set, held by Columbia Law Library,
belonged to
James Kent, an early chancellor of New York who was a close friend and
protégé of
Alexander Hamilton. Although Kent was just beginning his long and
illustrious career as a lawyer at the time of the Constitution's ratification, he is known to
have been an active champion of the Constitution at the New York state ratifying
convention.

TABLE 1. U.S. LIBRARIES HOLDING SETS OF HARGRAVE'S COMPLETE COLLECTION OF
STATE TRIALS, 4TH EDITION (1781)


The Fourth Amendment Exclusionary Rule (cont.)
Early Documents Predicting the 4th
Amendment Exclusionary Rule
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