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scribing the place to be searched, and the persons or things. to be seized." This is an affirmance and an adoption into our fundamental law of a great constitutional doctrine of the English common law, the flagrant violations of which by the issuance of general warrants, both in England and in the American colonies, just prior to the revolution, no doubt suggested to the founders of our government the propriety and importance of the amendment. It does not require actual entry upon premises and search for, and seizure of, papers to constitute an unreasonable search and seizure within the meaning of this amendment. A compulsory production of a party's private books and papers to be used against him or his property in a criminal or penal proceeding, or for forfeiture, is within the spirit and meaning of the amendment. It is equivalent to a compulsory production of papers to make the non-production of them a confession of the allegations which it is pretended they will prove.62 The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are lawful. The seizure of stolen property is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by the revenue laws of the United States from the commencement of the government, and such seizures are not prohibited by the constitution, when made upon warrants lawfully issued. Laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue, use or disposition, such as counterfeit coin, lottery tickets, implements of gambling and the like, are not within the constitutional inhibition."

§ 122. Same-Requisites of lawful search.-In order to a lawful search and seizure, the following are requisite: (1) A

61 Story on Const. (2 Ed.), secs. 1901, 1902; Cooley's Const. Lim. (2 Ed.) 367-377; Boyd v. United States, 116 U. S. 616, 641 (29:746); Hallam's Const. Hist. England, 220, 222, 241.

62 Boyd v. United States, 116

U. S. 616, 641 (29:746); In Re
Pacific Ry. Commission, 32 Fed.
250; United States v. Nat. Lead
Co., 75 Fed. 97.

63 Boyd v. United States, 116 U. S. 616, 641 (29:746).

warrant must be issued by a judicial officer.

(2) No warrant. shall issue except upon probable cause. (3) The application for the issuance of the warrant must be supported by oath or affirmation that a crime has been committed. (4) The warrant must particularly describe the place to be searched, and the persons or things to be seized. (5) No warrant can be issued except in cases expressly authorized by law. (6) The warrant should be directed to the sheriff or other proper officer, and not to a private person. (7) The warrant must be made returnable before a judicial officer, who has jurisdiction to inquire into the crime charged. (8) The warrant is not allowed. for the purpose of obtaining evidence of an intended crime, but of a crime already committed. (9) No warrant is allowed to be issued for the purpose of seizing and taking from the possession of a person his papers to be used as evidence to convict him of a crime or to forfeit his goods for an offense against the law.64

§ 123. No person compelled to be a witness against himself in a criminal case.-The fifth amendment to the federal constitution declares that: "No person shall be

com

pelled in any criminal case to be a witness against himself." This provision, like the one contained in the fourth amendment against "unreasonable searches and seizures," is but the adoption, into the fundamental law, of a great constitutional doctrine of the common law. Both the amendments, and the principles embodied in them, relate to the personal security, and the personal liberty of the citizen, and the right of private property, and are closely related to, and mutually throw light on and aid in the interpretation of each other. When the thing forbidden in the fifth amendment, namely, compelling a person to be a witness against himself in a criminal case, is the object. of a search and seizure of his private papers, it is an "unrea

64 U. S. Const. IV & V Amend. ments; Cooley's Const. Lim. ch. X, pp. 367, 375; Hale, P. C., 142, 150, 151; Archbold Cr. Law, 143, 147; Bishop's Cr. Proc. secs. 716, 719; Commonwealth v. Lottery Tickets, 5 Cush. 369; Stone v. Dana, 5 Met. 98; Sandford v. Nichols, 13 Mass. 286; Allen v. Staples, 6 Gray, 491;

McGlenchy v. Barrows, 41 Me. 74; Ashley v. Peterson, 25 Wis. 621; Commonwealth v. Cratty, 10 AIlen, 403; Bell v. Clapp, 10 Johns. 263; Hibbard v. People, 4 Mich. 126; Fisher v. McGirr, 1 Gray, 1; Boyd v. United States, 116 U. S. 616, 641 (29:746).

sonable search and seizure" within the meaning of the fourth amendment. And the seizure or compulsory production of a person's private books and papers to be used as evidence in a criminal case is equivalent to compelling him to be a witness against himself; and a proceeding to forfeit a person's property for an offense against the law, though civil in form, and whether in rem or in personam, is a criminal case within the meaning of that part of the fifth amendment which declares that "no person shall be compelled in any criminal case to be a witness against himself." 65

§ 124. Same-Extent and application of the principle.— Constitutional provisions for the security of persons and property are liberally construed, and all effort to restrict the operation of the provision under discussion has been repudiated by the supreme court from the earliest period of its history. Both at common law and under the constitution, the doctrine established is: That no person shall be compelled, in any proceeding, to give any testimony, or make any disclosures, which may tend to criminate him, or subject him to a criminal accusation, or prosecution, or to convict him of any crime, or which may tend to subject him to any fine, penalty, punishment or forfeiture; and the exemption extends, not only to the main criminating facts, but also to every incidental fact or circumstance which might form a link in a chain of evidence, which, if complete, would establish his liability to a criminal accusation, or prosecution, or conviction, or fine, penalty, punishment, or forfeiture. And the exemption protects the person from being compelled to disclose the circumstances of his offense, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. For all practical purposes, such disclosures would have the effect to furnish evidence against the party making them. They might furnish the only means. of discovering the names of those who could give evidence.

65 Boyd v. United States, 116 U. S. 616, 641 (29:746); Lees v. United States, 150 U. S. 476, 483 (37:1150); Counselman v. Hitchcock, 142 U. S. 547, 586 (35:1110).

66 Boyd v. United States, 116 U. S. 616, 641 (29:148); Counselman v. Hitchcock, 142 U. S. 547, 586 (35:1110); I Burr's Trial, 244.

concerning the transaction, the instrument by which a crime was perpetrated, or even the corpus delicti itself. Both the reason upon which the rule is founded, and the terms in which it is expressed, forbid that it should be limited to confessions of guilt, or statements which may be proved in subsequent prosecutions, as admissions of facts sought to be established therein.67

§ 125. Same Meaning of the words, "any criminal case."The privilege secured by the constitutional provision is not limited to a criminal prosecution against the witness. The provision is broadly construed in favor of the right it is intended to secure. Its object is to insure, that no person shall be compelled, when acting as a witness in any investigation, to give testimony, or make disclosures, which might tend to show that he himself had committed a crime, or was guilty of an of fense against the law for which his property might be forfeited. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard. An

67 Counselman v. Hitchcock, 142 U. S. 547, 586 (35:1110); Boyd v. United States, 116 U. S. 616, 641 (29:748); Lees v. United States, 150 U. S. 476, 483 (37:1150); I Burr's Trial, 244; Emery's Case, 107 Mass. 172, 181; State v. Now ell, 58 N. H. 314; Cullen v. Commonwealth, 24 Gratt. 624; Temple v. Commonwealth, 75 Va. 892; People v. Mather, 4 Wend. 229; Southard v. Rexford, 6 Cow. 255; Rex v. Slaney, 5 Car. & P. 213; Cates v. Hardacre, 3 Taunt. 424; Maloney v. Barkley, 3 Camph. 210; Sir John Friend's Case, 13 How. St. Tr. 16; Earl of Macclesfield's Case, 16 How. St. Trials, 767; Wigram on Discov. 61, 63; Hare on Discov. 131, 156; 2 Daniell, Chancery Pleading & Prac. (1st London Ed.) 45, 55; United States v. Saline Bank, 1 Pet. 100 (7:69); Leggett v. Postley, 2 Paige, Chan. 599; Livingston v. Harris, 3 Paige, Chan. 528; Taylor

v. Bruen, 2 Barb. Chan. 302; Union Bank V. Barker, 3 Barb. Chan. 358; Entick v. Carrington, 19 How. St. Trials, 1029.

"The common law maxim (thus affirmed by the bill of rights) that no one shall be compelled to testify to his own criminality, has been understood to mean, not only that the subject shall not be compelled to disclose his guilt upon a trial of a criminal proceeding against himself, but also that he shall not be required to disclose, on the trial of issues between others, facts that can be used against him as admissions tending to prove his guilt of any crime or offense, of which he may then or afterwards be charged, or the sources from which, or the means by which, evidence of its commission, or his connection with it, may be obtained." (State v. Nowell, 58 N. H. 314).

investigation before a grand jury to inquire and ascertain whether there has been a criminal offense committed, is a "criminal case," within the meaning and intent of the provision, and a witness testifying before the grand jury, who is apprehensive that his answers may tend to criminate him, may claim the privilege.68 And a proceeding to forfeit a person's goods, for an offense against the law, whether in rem or in personam, though civil in form, is a "criminal case" within the meaning of the provision."

69

§ 126. Same Same-Discovery in a suit in chancery.—The nature and character of the investigation in which it is attempted to compel a person to give testimony, or make disclosures which will tend to criminate him, or subject him to a penalty, or forfeiture, are wholly immaterial; whatever may be the form of the proceeding, the constitutional privilege may be claimed. And when a bill is filed in chancery for discovery, or relief and discovery, the constitutional provision interposes to protect the defendant from giving any discovery, whether by the statement of facts within his knowledge, or the production of his private books and papers, which may subject him to a criminal accusation, or prosecution, or tend to convict him of any crime, or tend to subject him to a penalty, or the forfeiture of his property." The first congress of the United States, whose members well understood the limitations established by the English chancery upon the right of discovery, and that such right was restricted within the rule of the common law which secured witnesses against self-accusation and selfcrimination, embodied a provision in the original judiciary act, which may be accepted as a contemporaneous exposition of the constitutional amendments submitted at the same session, showing that the intention was to extend its operation to every possible character of proceeding and investigation." The stat

68 Counselman v. Hitchcock, 142 U. S. 547, 586 (35:1110).

69 Boyd v. United States, 116 U. S. 616, 641 (29:748); Lees v. United States, 150 U. S. 476, 483 (37:1150).

70 Boyd v. United States, 116 U. S. 616, 641 (29:748); Wigram on Discov. 61, 63; Hare on Diseov. 131, 156; Leggett v. Postley, 2

Paige, Chan. 599; Livingston v. Harris, 3 Paige, Chan. 528; Taylor v. Bruen, 2 Barb. Chan. 302; Union Bank v. Barker, 3 Barb. Chan. 358; United States v. Saline Bank, 1 Pet. 100; 2 Daniell (1st Lond. Ed.) 45, 55; People v. Mather, 4 Wend. 229.

71 Boyd v. United States, 116 U. S. 616, 641 (29:748).

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