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 dwelling 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.148 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 su preme 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.

158 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 gov ernment 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 issued by the secretaries of state, and authorized the officers to search all suspected places and seize all suspected persons. But their illegality 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.

named or described, or that no specific description of the place to be searched was given. The execution of the warrant was therefore left very much to the caprice of the officer. These warrants were plainly contrary to the spirit of the common law, and in violation of private rights. And they were liable to be wielded as instruments of tyranny in the hands of corrupt officials. Yet they continued in use until 1763, at which time the court of king's bench declared that they were illegal, and allowed the recovery of damages by those whose rights had been invaded under such warrants.156

Search Warrants.

The constitutions do not forbid the issue of search warrants. They only prohibit "unreasonable" searches. Generally speaking, the constitutional requirements as to the issue of such warrants are only three in number: First, no warrant shall issue but upon probable cause, and this "probable cause" must be made out by a sufficient showing to the court or magistrate applied to for the warrant that such a case exists as is contemplated by the law as proper for the use of this writ; second, the application must be supported by an oath or affirmation; third, the warrant must particularly describe the place to be searched and the persons or things to be seized. But there are certain other requisites derivable from clear implications from the constitution or from the general principles of law. Thus, the constitutions, while regulating the issuance of such warrants, do not grant the power to issue them. Consequently, no court or judge has inherent power to grant such a writ, but it must be authorized by statute. Again, the general rules of law require that such process should be executed by an officer of the law. And, further, since this process is not final process, but is only used as a means to some further end, it will not authorize the officer executing the writ to make any final disposition of the property which may be seized under it. Any articles so taken must be brought be fore the court or magistrate, to be proceeded against and disposed of according to law. Even stolen goods cannot be restored to their owner immediately upon their recovery by a search warrant; and, if the property taken is claimed to have been kept or concealed in

156 Wilkes v. Wood, 19 How. St. Tr. 1153, Broom, Const. Law, 544; Leach v. Money, 19 How. St. Tr. 1001, Broom, Const. Law, 522; Entick v. Carrington, 19 How. St. Tr. 1030; Broom, Const. Law, 555; 2 Story, Const. § 1902; Pom. Const. Law, § 241.

violation of law, it cannot be forfeited or destroyed until the facts shall have been duly ascertained according to law, and the owner accorded an opportunity to defend.157

As a general rule, search warrants are to be employed only as an aid in the enforcement of the criminal laws. They may be issued for the recovery of goods alleged to have been stolen,158 for the discovery of merchandise smuggled into the country and concealed to avoid the payment of duties,159 for intoxicating liquors kept or intended for sale in violation of law,1 160 for instruments and apparatus used in gambling,101 for the seizure of lottery tickets or materials for drawing a lottery,162 and for forged warrants, writs, certificates, or other such legal documents.168 But a statute authorizing the issue of warrants, by judges of insolvency, on the complaint of an assignee, to search for property of the debtor, is unconstitutional and void.164 Nor is this warrant ever allowed to be used solely as the means of obtaining evidence against a person accused of crime. It is true that in some few cases, as in the search for stolen goods, the discovery of the article in question may furnish an item of evidence against the possessor of it. But in all such cases, either the complainant or the public has some interest in the property or in its destruction, and the finding of evidence is not the immediate reason for issuing the warrant. But it was settled by the common law, in the cases of the "general warrants," and has always been the understanding of the American people, that this process could not be employed as a means of gaining access to a man's house or his letters and papers for the mere and sole purpose of securing evidence to be used against him in a criminal or penal proceeding. Such methods would also be inconsistent with the great principle of constitutional law in criminal cases that no man shall be compelled to

157 As to the requisites of search warrants, see Bish. Cr. Proc. §§ 240-246; Stim. Am. St. Law, § 71.

158 Stone v. Dana, 5 Metc. (Mass.) 98.

150 Rev. St. U. S. § 3066.

160 Fisher v. McGirr, 1 Gray (Mass.) 1.

161 Hastings v. Haug, 85 Mich. 87, 48 N. W. 294: Com. v. Gaming Implements, 119 Mass. 332.

162 Com. v. Dana, 2 Metc. (Mass.) 329; People v. Noelke, 29 Hun, 461.

168 Langdon v. People, 133 Ill. 382, 24 N. E. 874.

164 Robinson v. Richardson, 13 Gray (Mass.) 454.