the American Revolution,* in regard to writs of assistance [* 302] issued by the courts to the revenue officers, empowering

ceived in this as in other cases, and came on for hearing before the Court of King's Bench in 1765. After much argument, and the citing of precedents showing the practice of the secretary of state's office ever since the Revolution, Lord Mansfield pronounced the warrant illegal, saying: 'It is not fit that the judging of the information should be left to the discretion of the officer. The magistrate should judge, and give certain directions to the officer.' The other three judges agreed that the warrant was illegal and bad, believing that no degree of antiquity can give sanction to an usage bad in itself.' The judgment was therefore affirmed.

"Wilkes had also brought actions for false imprisonment against both the secretaries of state. Lord Egremont's death put an end to the action against him; and Lord Halifax, by pleading privilege, and interposing other delays unworthy of his position and character, contrived to put off his appearance until after Wilkes had been outlawed, when he appeared and pleaded the outlawry. But at length, in 1769, no further postponement could be contrived; the action was tried, and Wilkes obtained no less than four thousand pounds damages. Not only in this action, but throughout the proceedings, in which persons aggrieved by the general warrant had sought redress, the government offered an ob tinate and vexatious resistance. The defendants were harrassed by every obstacle which the law permitted, and subjected to ruinous costs. The expenses which government itself incurred in these various actions were said to have amounted to one hundred thousand pounds.

"The liberty of the subject was further assured at this period by another remarkable judgment of Lord Camden. In November, 1762, the Earl of Halifax, as secretary of state, had issued a warrant directing certain messengers, taking a constable to their assistance, to search for John Entinck, clerk, the author or one concerned in the writing of several numbers of the Monitor, or British Freeholder,' and to seize him, together with his books and papers, and bring him in safe custody before the secretary of state. In execution of this warrant, the messengers apprehended Mr. Entinck in his house, and seized the books and papers in his bureau, writing-desk, and drawers. This case differed from that of Wilkes, as the warrant specified the name of the person against whom it was directed. In respect of the person, it was not a general warrant; but as regards the papers, it was a general search-warrant, not specifying any particular papers to be seized, but giving authority to the messengers to take all his books and papers according to their discretion.

Mr. Entinck brought an action of trespass against the messengers for the seizure of his papers, upon which a jury found a special verdict, with three hundred pounds damages. This special verdict was twice learnedly argued before the Court of Common Pleas, where, at length, in 1765, Lord Camden pronounced an elaborate judgment. He even doubted the right of the secretary of state to commit persons at all, except for high treason; but in deference to prior decisions, the court felt bound to acknowledge the right. The main question, however, was the legality of a search-warrant for papers. If this point should be

*

[303] them, in their discretion, to search suspected places for smuggled goods, and which Otis pronounced "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;" since they placed "the liberty of every man in the hands of every petty officer." 1 All these matters are now a long way in the past; but it has not been deemed unwise to repeat in the State constitutions, as well as in the Constitution of the United States," the principles already settled in the common law upon this vital point in civil liberty.

determined in favor of the jurisdiction,' said Lord Camden, the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall see fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' This power, so assumed by the secretary of state, is an execution upon all the party's papers in the first instance. His house is rifled; his most valuable papers are taken out of his possession, before the paper, for which he is charged, is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper.' It had been found by the special verdict that many such warrants had been issued since the Revolution; but he wholly denied their legality. He referred the origin of the practice to the Star Chamber, which in pursuit of libels had given searchwarrants to their messenger of the press; a practice which, after the abolition of the Star Chamber, had been revived and authorized by the licensing act of Charles II., in the person of the secretary of state. And he conjectured that this practice had been continued after the expiration of that act, a conjecture shared by Lord Mansfield and the Court of King's Bench. With the unanimous concurrence of the other judges of his court, this eminent magistrate now finally condemned this dangerous and unconstitutional practice." May's Constitutional History of England, c. 11. See also Semayne's Case, 5 Coke, 91; 1 Smith's Lead. Cas. 183; Entinck v. Carrington, 2 Wils. 275, and 19 State Trials, 1030; Note to same case in Broom, Const. Law, 613; Money v. Leach, Burr. 1742; Wilkes's Case, 2 Wils. 151, and 19 State Trials, 1405. For debates in Parliament on the same subject, see Hansard's Debates, Vol. XV. p. 1393 to 1418, Vol. XVI. pp. 6 and 209. In further illustration of the same subject, see De Lolme on the English Constitution, c. 18; Story on Const. §§ 1901, 1902; Bell v. Clapp, 10 Johns. 263; Sailly v. Smith, 11 Johns. 500.

1 Works of John Adams, Vol. II. pp. 523, 524; 2 Hildreth's U. S. 499; 4 Bancroft's U. S. 414; Quincy, Mass. Reports, 51. See also the appendix to these reports, p. 395, for a history of writs of assistance.

2 U. S. Const. 4th Amendment. The scope of this work does not call for any discussion of the searches of private premises, and seizures of books and papers, which are made under the authority, or claim of authority, of the revenue laws of the United States. Perhaps, under no other laws are such liberties taken by ministerial officers; and it would be surprising to find oppressive action on their part so

For the service of criminal process, the houses of private parties are subject to be broken and entered under circumstances which are fully explained in the works on criminal law, and need not be enumerated here. And there are also cases where searchwarrants are allowed to be issued, under which an officer may be protected in the like action. But as search-warrants are a species of process exceedingly arbitrary in character, and which ought not to be resorted to except for very urgent and satisfactory reasons, the rules of law which pertain to them are of more than ordinary strictness; and if the party acting under them expects legal protection, it is essential that these rules be carefully observed.

*In the first place they are only to be granted in the [* 304] cases expressly authorized by law; and not generally in such cases until after a showing made before a judicial officer, under oath, that a crime has been committed, and that the party complaining has reasonable cause to suspect that the offender, or the property which was the subject or the instrument of the crime, is concealed in some specified house or place.1 And the law, in requiring a showing of reasonable cause for suspicion, intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well founded; for the suspicion itself is no ground for the warrant except as the facts justify it.2

In the next place, the warrant which the magistrate issues must particularly specify the place to be searched, and the object for which the search is to be made. If a building is to be searched, the name of the owner or occupant should be given; or, if not occupied, it should be particularly described, so that the officer will be left to no discretion in respect to the place; and a misdescription in regard to the ownership, or a description so general that it applies equally well to several buildings or places, would render often submitted to without legal contest, if the facilities they possess to embarass, annoy, and obstruct the merchant in his business, were not borne in mind. The federal decisions, however, go very far to establish the doctrine that, in matters of revenue, the regulations Congress sees fit to establish, however unreasonable they may seem, must prevail. For a very striking case, see Henderson's Distilled Spirits, 14 Wall. 44.

1 2 Hale, P. C. 142; Bishop, Cr. Pro. §§ 716-719; Archbold, Cr. Law, 147. * Commonwealth v. Lottery Tickets, 5 Cush. 369; Else v. Smith, 1 D. & R. 97.

3 Stone v. Dana, 5 Met. 98:

• Sandford v. Nichols, 13 Mass. 286; Allen v. Staples, 6 Gray, 491.

the warrant void in law.1 Search-warrants are always obnoxious to very serious objections; and very great particularity is justly required in these cases, before the privacy of a man's premises is allowed to be invaded by the minister of the law. And therefore a designation of goods to be searched for as "goods, wares, and merchandises," without more particular description, has been regarded as insufficient, even in the case of goods supposed to be smuggled, where there is usually greater difficulty in giving description, and where consequently more latitude should be permitted than in the case of property stolen.

[* 305] * Lord Hale says, "It is fit that such warrants to search do express that search be made in the day-time; and though

I do not say they are unlawful without such restriction, yet they are very inconvenient without it; for many times, under pretence of searches made in the night, robberies and burglaries have been committed, and at best it creates great disturbance." And the statutes upon this subject will generally be found to provide for searches in the day-time only, except in very special cases.

The warrant should also be directed to the sheriff or other proper officer, and not to private persons; though the party complainant may be present for the purposes of identification, and other assistance can lawfully be called in by the officer if necessary.

The warrant must also command that the goods or other articles to be searched for, if found, together with the party in whose custody they are found, be brought before the magistrate, to the end that, upon further examination into the facts, the goods, and the party in whose custody they were, may be disposed of according to law.

And it is a fatal objection to such a warrant, that it

Thus, a warrant to search the "houses and buildings of Hiram Ide and Henry Ide," is too general. Humes v. Tabor, 1 R. I. 464. See McGlinchy v. Barrows, 41 Me. 74; Ashley v. Peterson, 25 Wis. 621. So a warrant for the arrest of an unknown person under the designation of John Doe, without further description, is void. Commonwealth v. Crotty, 10 Allen, 403.

A warrant for searching a dwelling-house will not justify a forcible entry into a barn adjoining the dwelling-house. Jones v. Fletcher, 41 Me. 254; Downing v. Porter, 8 Gray, 539; Bishop, Cr. Pro. §§ 716–719.

Sandford v. Nichols, 13 Mass. 286; Archbold, Cr. Law, 143.

2 Hale, P. C. 150.

See Archbold, Cr. Law (7th ed.), 145.

52 Hale, P. C. 150; Archbold, Cr. Law (7th ed.), 145.

2 Hale, P. C. 150; Bell & Clapp, 10 Johns. 263; Hibbard v. People, 4 Mich. 126; Fisher v. McGirr, 1 Gray, 1.

leaves the disposition of the goods searched for to the ministerial officer, instead of requiring them to be brought before the magistrate, that he may pass his judgment upon the truth of the complaint made; and it would also be a fatal objection to a statute authorizing such a warrant, if it permitted a condemnation or other final disposition of the goods, without notice to the claimant, and without an opportunity for a hearing being afforded him.1 The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but only after lawful evidence of an offence actually committed.2 Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him,3* except in a few special cases where that which is [* 306] the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction. Those special cases are familiar and well understood in the law. Search-warrants have heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lottery tickets or prohibited liquors kept for sale contrary to law, for obscene books and papers kept for sale or circulation, and for powder or other dangerous or explosive material so kept as to endanger the public safety. A statute which should permit the breaking and entering a man's house, and the

'The "Search and Seizure" clause in some of the prohibitory liquor laws was held void on this ground. Fisher v. McGirr, 1 Gray, 1; Greene v. Briggs, 1 Curtis, 311; Hibbard v. People, 4 Mich. 126. See also Matter of Morton, 10 Mich. 208, for a somewhat similar principle.

We do not say that it would be incompetent to authorize, by statute, the issue of search-warrants for the prevention of offences in some cases; but it is difficult to state any case in which it might be proper, except in such cases of attempts, or of preparations to commit crime, as are in themselves criminal.

The fourth amendment to the Constitution of the United States, found also in many State constitutions, would clearly preclude the seizure of one's papers in order to obtain evidence against him; and the spirit of the fifth amendmentthat no person shall be compelled in a criminal case to give evidence against himself-would also forbid such seizure.

These are the most common cases, but in the following search-warrants are also sometimes provided for by statute: books and papers of a public character, retained from their proper custody; females supposed to be concealed in houses of ill-fame; children enticed or kept away from parents or guardians; concealed weapons; counterfeit money, and forged bills or papers. See cases under English statutes specified in 4 Broom and Hadley's Commentaries, 332.