AND REMAINDERS ARE PROPERTY.

829

event of her surviving her brother, to whom it had been left. for life, was in like manner held to be so far vested that it could not be taken away by a statute passed before the happening of the contingency without compensation, although the first holder was still living, and it was uncertain whether the bequest over would take effect. The court said, "It is quite clear that if, by the termination of the life estate of her brother Benjamin, the contingency upon which her husband was entitled to reduce the property to his own possession had happened before the passage of the statutes, the fact that he had not actually exercised that right would not subject his interest in the property to their operation.1 Even during the continuance of the life estate his right in this property of his wife was, according to the adjudication of this court in Gardner v. Hooper,2 a valuable and assignable interest, which, though contingent in possession and enjoyment, was vested in right, and of which, therefore, he could not be deprived by act of the legislature without compensation.3 This interest was wholly different from a husband's expectation of a right in property to accrue to his wife after the passage of the statute, which, like that of an heir in the estate of his ancestor, would have been an interest vested neither in possession nor in right, but a bare possibility, and therefore liable to be defeated by a change in the law at any time before the right accrued. It has indeed been held by the courts of some States that a wife's right of dower may be cut off by an act of the legislature at any time before it becomes consummate upon the death of the husband.4 But those decisions proceed upon the theory that such a right is not an interest in property, but a mere possibility, created by law, and not in any sense vested or assignable until after the husband's death. And it may well be doubted whether they are consistent with the law of this Commonwealth, by which an inchoate right of dower is recognized as something more than a

1 Westervelt v. Gregg, 12 N. Y. 202; Norris v. Beyea, 13 Id. 274, 288. 2 3 Gray, 398.

3 Jackson v. Sublett, 10 B. Monr. 467.

4 See the cases collected in 2 Scribner on Dower, c. 1.

830

A MAN'S PAPERS ARE PROPERTY.

possibility, and as an interest in property which equity will, under some circumstances, protect at the suit of the wife in the lifetime of the husband."1

It needs no argument to prove that a man's papers are property which may be of the utmost value and significance, and that an arbitrary seizure of them is among the deprivations which the Fifth and Fourteenth Amendments forbid.2 But the question has another and important bearing, because the Fifth Amendment provides, in accordance with the common law, that "no man shall be compelled in a criminal proceeding to bear witness against himself," while, the Fourth prohibits "unreasonable searches and seizures."3 These clauses relate only to the United States; but the Fourteenth Amendment, that "no State shall deprive any person of life, liberty, or property without due process of law," seems broad enough to cover the same ground, because the compulsory extortion of a man's own testimony or of his papers to be used as evidence to convict him of crime or to forfeit his goods is an abuse of process. A conviction obtained by such means would obviously be erroneous. and a sentence of fine and imprisonment founded upon it a deprivation of which the accused might justly complain. These privileges, which came with the colonists from England, and were engrafted from the English Constitution on our own, were vindicated in the memorable trials which grew out of the general warrants issued by the Secretary of State, Lord Halifax, for the arrest of persons charged with the publication of libels against the government in the North Briton, and British Freeholder, and the seizure of their papers.5

1 Davis v. Wetherell, 13 Allen, 63.

2 Entick v. Carrington, 2 Wilson, 275; 19 State Trials, 1029, 1066; Boyd v. The United States, 116 U. S. 616.

8 See ante, p. 509.

4 See Horstman v. Kauffman, 97 Pa. 147, where an act providing for the compulsory examination of debtors under a proceeding issued to attach their goods on the ground of fraud was held to be unconstitutional.

5 Leach v. Mooney, 19 State Trials, 1001; 3 Burr 1692, 1767; Entick

GENERAL WARRANTS.

831

In some of these instances the warrant was simply against the authors, printers, and publishers of the North Briton, to take their papers, without naming the persons to be apprehended; in others the persons accused were named, without specifying the papers; and they all gave a dangerous latitude which was abused by the messengers to whom they were intrusted for execution. Wilkes and some sixteen others were taken into custody under the instrument, their dwellings ransacked, and their papers carried away for inspection by the officers of the Crown. They brought actions of trespass and false imprisonment in the Common Pleas, which were sustained by Chief-Justice Pratt (afterwards Lord Camden); and the juries gave heavy damages, amounting in the suit of Wilkes against Lord Halifax to four thousand pounds. One of these cases was taken on a writ of error to the King's Bench and affirmed; Lord Mansfield holding the warrant illegal because two things ought to appear in every such instrument, that an offence has been committed, and that there is probable cause for believing that the person to be apprehended was guilty of the offence; and a general warrant leaves the latter point to an officer who is not a magistrate, and may be unacquainted with the evidence. In another case, where the person was named, but the warrant gave a general authority. to take all his books and papers, without specifying which, Lord Camden dismissed a motion for a new trial on broader grounds. A man has a right of property in his papers which cannot be taken from him because he is charged with an offence of which he may be innocent. There is a manifest difference between such a proceeding and a search-warrant for stolen goods. In the one the owner is simply empowered to retake his property and place it in the hands of a public officer until the felon's coviction entitles him to restitution. In the other his property is taken from his possession to be used as a weapon of offence, and matters that were intended only for his own eyes divulged, although their nature

v. Carrington, Id. 1029; Wilkes v. Wood, Id. 1153; 1 Lloftt, 1; Wilkes v. Lord Halifax, 2 Wilson, 256; 19 State Trials, 1406.

1 Entick v. Carrington, 19 State Trials, 1029.

832

UNREASONABLE SEARCHES

may be such that they cannot be made public without danger to his liberty, estate, or reputation. "The great end," he said, "for which men enter into society is to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law are various. Distresses, executions, forfeitures, taxes, etc., are all of this description, wherein every man by common consent gives up that right for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing,—which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show, by way of justification, that some positive law has justified or excused him. The justification is submitted to the judges, who are to look into the books and see if such a justification can be maintained by the text of the statute law or by the principles of the common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass.

"Papers are the owner's goods and chattels; they are his dearest property; and are so far from enduring a seizure that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and, therefore, it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society. . . .

In

"Lastly, it is urged, as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown where the law forceth evidence out of the owner's custody by process. There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. the criminal law such a proceeding was never heard of; and yet there are crimes - such, for instance, as murder, rape, robbery, and housebreaking, to say nothing of forgery and perjury that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself, because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem that search for evidence is disallowed upon the same principle. Then, too, the innocent would be confounded with the guilty."

Great as was the weight due to these principles as they stood in the books of the common law, they derived new value from the recent case of Boyd v. The United States,1 where Lord Camden's judgment was cited as the source of the prohibition of unreasonable searches and seizures in the Fourth Amendment, and as a guide which should be followed in averting the abuses which that is intended to prevent. The question arose under an act of Congress authorizing the courts of the United States "in revenue cases, on motion of the government attorney, to require the defendant or claimant to produce in court his private books, invoices, and papers, or else the allegations of the libel to be taken as confessed." This act, like some other chapters of the Revised Statutes, was drawn in view of the recent civil war, with a disposi1 116 U. S. 616.