vices and instruments called in the statute 'deadly weapons,' to the proper or necessary arms of a 'well-regulated militia' is simply ridiculous. No kind of travesty, however subtile or ingenious, could so misconstrue this provision of the Constitution of the United States as to make it cover and protect that pernicious vice from which so many murders, assassinations, and deadly assaults have sprung, and which it was doubtless the intention of the Legislature to punish and prohibit. The word 'arms' in the connection we find it in the Constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense."

In State v. Workman, the Supreme Court of West Virginia held:

"The second amendment of our Federal Constitution should be construed with reference to the provisions of the common law upon this subject as they then existed, and in consonance with the reason and spirit of the amendment itself, as defined in what may be called its 'preamble.' As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, 'to go or ride armed by night or by day.' And so also at common law the 'going around with unusual and dangerous weapons to the terror of the people' was a criminal offence.

"The keeping and bearing of arms, therefore, which at the date of the amendment was intended to be protected as a popular right, was not such as the common law condemned, but was such a keeping and bearing as the public liberty and its preservation commended as lawful, and worthy of protection. So, also, in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets-arms to be used in defending the State and civil liberty-and not to pistols, etc."

In Robertson v. Baldwin,10 the Supreme Court of the United States held that an act which prohibits the carrying of concealed weapons does not violate this amendment. 935 West Va., 367, 372.

10 165 U. S., 275, 282, 283.

THIRD AMENDMENT.

No Soldier shall, in time of peace, be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The Petition of Right exhibited to Charles I on June 2, 1628, by the Lords and Commons of Parliament, among other grievances, set forth the following:

"Whereas of late, great Companies of Soldiers and Mariners have been dispersed into divers Counties of the Realm, and the Inhabitants, against their Wills, have been compelled to receive them into their Houses, and there to suffer them to sojourn, against the Laws and Customs of this Realm, and to the great Grievance and Vexation of the People.""

In this grievance is found the origin of this amendment. When the amendment was before the House of Representatives Mr. Sumpter spoke against it and said he hoped soldiers would never be quartered on the inhabitants, either in time of peace or war, without the consent of the owner, and it was a burthen, and very oppressive, even in cases where the owner gave his consent; but where this was wanting it would be a hardship indeed, and their property would lie at the mercy of men irritated by a refusal, and well disposed to destroy the peace of the family.12

Mr. Gerry then moved to insert in the last line between the word "but" and the words "in a manner" the words "by a civil magistrate," so that the amendment would read: "No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war but by a civil magistrate in a manner to be prescribed by law," the object being to give the civil authorities control of quartering soldiers in any man's house, even in time of war, but this amendment was lost.13

112 Cobbett's Parliamentary History, vol. 8, 148, ed. 1751. 12 Congressional Register, 2nd Lloyd, 223.

13 Congressional Register, 2nd Lloyd, 223, 224.

An able commentator on the Constitution has said that this amendment must be construed to be a law of the United States when war is general, or of the State when in the authorized exercise of the right of self-defense on the sudden emergencies adverted to in the Constitution, immediate State operations have become necessary. In the former case, the sole conduct of the war is given to the General Government, and it ought not to be depended on, or controlled by the State governments in its modes of proceedings. In the latter, the State, relying on its own emergencies, is entitled to the benefit of the same principle. The term "soldier," as here used, includes the militia of a State or government when in service the same as it does a soldier of the regular army.

The object was to preserve to every man the privacy and seclusion of his own home. Under no circumstances was this principle to be violated by the quartering of soldiers in any man's home without his consent in time of peace, nor even in time of war, unless in a manner under the supervision and direction of the law.

This amendment was also a part of Madison's first amendment.1 15 Its present form differs but little from that in which he introduced it. There was a short debate on it in the House of Representatives and Mr. Sumpter moved to strike out so that the amendment would read: "No soldier shall be quartered in any house without the consent of the owner,' but this motion was lost.16

This amendment expressly forbids quartering a soldier in any house in time of peace, except by consent of the owner. It then provides that in time of war a soldier may be quartered in a house in a manner prescribed by law. So in time of peace, the owner of the house determines whether a soldier shall be quartered there, but in time of war, the whole matter is left to the discretion of Congress without consulting the owner.

14 Rawle on the Constitution, 127.

15 1 Annals, 451.

16 1 Annals, 781.

FOURTH AMENDMENT.

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.

This great amendment was the seventh subdivision of Madison's first amendment. As introduced by him it read: "The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.""

In the House of Representatives the first part of the article was amended on motion of Mr. Gerry to read: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches. ''18

Some slight variations were afterwards made by the select Committee of Three, which were approved by Congress.19

This is one of the most important amendments to the Constitution. It recognizes the right of the people to be secure in their persons and houses, and in the possession of their effects from unreasonable searches and seizures. The right is not created by the clause. It existed as a common-law right before the amendment was adopted, or before the Constitution was framed.

The origin of this amendment runs back in English history to the 17th century, when Charles II was placed on the throne. It had become the practice in the office of the secretaries to the Crown, after the Restoration,

171 Annals, 452.

18 1 Annals, 783.

19 Thorpe's Constitutional History United States, vol. 2, 257.

to issue warrants for the arrest of persons without inserting their names in the warrants, especially authors, printers and publishers of obscene and seditious libels,20 and to invade the homes and search for private papers of individuals to obtain evidence against them on imaginary charges. This practice continued until the latter part of the 18th century, when the validity of such warrants was contested, and it was held by the Court of King's Bench in Money v. Leach,21 that the warrant must be issued upon the oath of an accuser, setting forth the name of the offender, the time, place and nature of the offense with a reasonable degree of certainty.

While officers of the crown were issuing and serving such warrants in England they were doing the same in the American colonies,-and this contributed much to that public sentiment which eventually demanded the adoption of this amendment. So oppressive had become the practice that here, as in England, it caused great alarm among the people, and here, as there, resistance was made to such writs on the ground of their illegality. These warrants were principally issued and the seizures made in the colony of Massachusetts. The trial which tested their legality occurred in Boston in February, 1761. It proved to be more than a mere trial, as we shall see, for the greatest question which could affect the interests of the colonists was involved. James Otis, a native of Massachusetts, was Advocate-General of the Crown at Boston, a legal position of great responsibility and honor; but he was so wrought up at the outrage which had been committed by the arrests under these warrants that he resigned his office, and, though offered a most remunerative fee if he would take charge of the defense,22 he said: "In such a cause as this I despise a fee." He then acted as one of the counsel in resisting the arrests. He spoke for five hours, and it is doubtful if any legal argument ever made on this continent produced a more profound or lasting impression. He set fire to a a torch which is still burning, and which will continue to burn, for in that masterful effort he im

20 2 Cooley's Blackstone, 290.

21 3 Burrows, 1742.

22 Tudor's Life of Otis, 63.