active effect so as to disturb this title.142 But it is held that the repeal of a statute of limitations of actions on personal debts does not, as applied to a debtor the right of action against whom is already barred, deprive him of his property without due process of law.148 It is a well-settled rule that the provisions of a statute of limitation do not run against the state, as they do against a private suitor, unless the state is expressly named in the statute and its rights waived.144 And for obvious reasons, statutes of limitation of the several states do not apply to actions wherein the government of the United States is the plaintiff.145

Rules of Evidence.

In criminal prosecutions, as we shall presently see, the accused has a right to be tried by the rules of evidence in force at the time of the commission of the alleged offense, or, at least, to be exempt from the retroactive operation of any statute which would change the rules of evidence to his disadvantage, as by making less or different evidence sufficient to convict him. But, in civil issues, the rules of evidence are not grants of a right from the state to the private suitor, nor are they property in which any person can have a vested right. They are a part of the substantive law of the state, and the legislature has the power to make such rules, or to modify or repeal those already existing, and make them applicable to pending controversies, subject only to such specific restrictions as may be found in the constitution.146 But still it is possible to frame rules of evidence which would indirectly cut off vested rights, by making it impossible for the owner to secure their recognition or enforcement by the courts; and this, of course, would be constitutionally inadmissible. Such would be the case with a statute making tax deeds conclusive evidence of good title in the tax purchaser.1

142 Power v. Telford, 60 Miss. 195.

148 Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209.

147

144 Glover v. Wilson, 6 Pa. St. 290; Alexander v. State, 56 Ga. 478; City of Jefferson v. Whipple, 71 Mo. 519; Josselyn v. Stone, 28 Miss. 753.

145 U. S. v. Belknap, 73 Fed. 19.

146 State v. Weston, 3 Ohio Dec. 15.

147 Kelly v. Herrall, 20 Fed. 364; Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400, and 15 N. E. 401; McCready v. Sexton, 29 Iowa, 356; Black, Tax Titles, §§ 451, 452.

SEARCHES AND SEIZURES.

216. The fourth amendment to the federal constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." And in all the states a similar guaranty has been made a part of the organic law.

217. These constitutional provisions protect the citizen against

(a) All unauthorized intrusion into his dwelling house by officers or others claiming to act under the authority of the law.

(b) The compulsory production of his books and papers to be used as evidence against him.

(c) The unlicensed examination of the contents of letters or sealed packages intrusted by him to the government for transmission through the mails. d) The search of his house for specific property alleged to be therein, in aid of the enforcement of the criminal laws or police regulations, except it be under the authority of a search warrant lawfully issued, and complying with all constitutional and statutory requirements.

Security of the Dwelling.

It was the boast of the English common law that "every man's house is his castle." In the familiar words of Chatham, "the poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement." Nor was this conception of the sanctity of the private dwelling known only to the ancient law of our parent coun

148

try. In the imperial law of Rome it was expressed in the noble maxim, "Domus sua cuique est tutissimum refugium," and in the correlative rule, "Nemo de domo sua extrahi potest." Such, therefore, is the jealous care with which the law protects the privacy of the home, that the owner may close his doors against all unlicensed entry and defend the possession and occupancy of his house against the intruder by the employment of whatever force may be needed to secure his privacy, even, in extreme cases, to the taking of life itself. A man assaulted in his own dweiling is not obliged to "flee to the wall," but he may defend his home, which is his castle of refuge, to any and all extremities.1 It will therefore be seen that the right of security in the dwelling, justly esteemed one of the most important of civil rights, was not created by and did not depend upon the constitution, but existed long before, and was merely guarantied and secured by that instrument.149 And although the constitutional provisions relate only to the privilege of the domicile against unreasonable searches and seizures, yet, if there be any other way in which the lawful rights of the dwelling may be invaded, it is adequately forbidden and punished by the common law. It should be added that the fourth amendment to the constitution of the United States does not extend to the state governments, but is a restriction only upon the legislature and judiciary of the Union.150

When an Entry may be Forced.

The privacy of the dwelling is not to stand in the way of the due execution of the laws, nor is a man's house a sanctuary for those who are amenable to the criminal justice of the state. An entry into a private house may be forced by the officers of the law for the purpose of capturing a felon, or in order to arrest a person, known to be in hiding there, for treason, felony, or breach of the peace. Again, the house may be entered, and the owner evicted, when he is no longer entitled to hold the possession of the property, that right having passed to another by law; when it becomes necessary to destroy the building in order to prevent the spread of a conflagration; 151 and 148 Estep v. Com., 86 Ky. 39, 4 S. W. 820; State v. Peacock, 40 Ohio St. 333; People v. Dann, 53 Mich. 490, 19 N. W. 159.

149 U. S. v. Crosby, 1 Hughes, 448, Fed. Cas. No. 14,893.

150 Reed v. Rice, 2 J. J. Marsh. (Ky.) 45.

151 A house in a town may be pulled down and removed, to arrest the spread

when it is necessary to examine into the sanitary conditions of the house, or to remove or quarantine a person lying sick therein of a dangerous contagious disease.152 But with these exceptions, the only manner in which officers can force their way into a dwelling house against the will of the proprietor, is by the sanction and command of a search warrant, the requisites of which we shall presently consider. With regard to the service of mere civil process, the rule is that the officer may not break or force open the outer door; but if he has lawfully gained an entry into the tenement, without force, he may then break open an inner door if he must do so in order to execute his writ.153

Compulsory Production of Papers.

It will be observed that the constitutional provisions against unreasonable searches and seizures apply not merely to a man's house, but also to his person and his papers. The force and effect of this part of the provision was fully considered in a case before the supreme court of the United States, in regard to a clause of the customs revenue law which authorized a federal court, in revenue cases, on motion of the government's attorney, to require the defendant to produce in court his private books, invoices, and papers, and directed that, if he refused to do so, the allegations of the government might be taken as confessed. It was held that it does not require an actual entry upon premises and a physical search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the fourth amendment. A compulsory production of a party's private books and papers, to be used against himself or his property in a criminal or penal proceeding or for a forfeiture, is within the spirit and meaning of that amendment. And it is equivalent to such

of a fire, where it is inevitable that the house will take fire and be consumed if it is permitted to stand, and it is inevitable that, if it takes fire and is consumed, it will spread the fire to other houses. Beach v. Trudgain, 2 Grat. (Va.) 219; Surocco v. Geary, 3 Cal. 69; Stone v. Mayor, etc., 25 Wend. (N. Y.) 157. 152 When a person sick with a dangerous contagious disease is quarantined in his own house, the health officers may enforce stringent regulations for the prevention of the spread of the disease, but, unless fully authorized by statute, they cannot take entire possession of the house and virtually turn it into a hospital. Spring v. Inhabitants of Hyde Park, 137 Mass. 554; Brown v. Murdock, 140 Mass. 314, 3 N. E. 208.

153 Semayne's Case, 5 Coke, 91. And see Weimer v. Bunbury, 30 Mich. 201.

compulsory production to make the non-production of the papers a confession of the allegations which it is pretended they would prove. 154

Inviolability of the Mails.

The same principle which protects a man's private papers in his own house from unreasonable search and seizure should also secure their inviolability when he confides them to the custody of the government for the purpose of transmission through the mails. "Letters and sealed packages in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.

Whilst in the mail they can only be opened and examined under like warrant, issued upon similar oath or af firmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the constitution." 155 General Warrants.

The proximate cause for the introduction of this provision into the federal bill of rights was the apprehension that there might be an abuse of official power similar to that which had disgraced the reign of more than one English sovereign, under the system of inquisitorial proceedings called the issue of "general warrants." These warrants were used principally in the case of political offenses, and directed the arrest of the authors, printers, and publishers of obscene and seditious libels, and the seizure of their papers. They were is sued by the secretaries of state, and authorized the officers to search all suspected places and seize all suspected persons. But their il legality consisted in the fact that no individual was specially

154 Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524.

155 Ex parte Jackson, 96 U. S. 727, 733. And see U. S. v. Eddy, 1 Biss. 227, Fed. Cas. No. 15,024.