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pressed upon the American heart the great lesson of resistance to tyranny and outrage. As the result of the trial the writs were never afterwards served by judicial sanction. This trial occurred thirty years before the amendment in question was adopted, but its adoption was largely due to the opposition to the Writs of Assistance, and the powerful influence of the speech of Otis.23
23 The following extract from this argument shows the nature of the writs issued by the Crown officers. It is inserted here as being an instructive and interesting portion of legal colonial history, and because this speech, so often referred to, is hard to procure:
“May it please your Honours: I was desired by one of the Court to look into the books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare, that whether under a fee or not (for in such a cause as this I despise a fee), I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villany on the other, as this Writ of Assistance is.
“It appears to me 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 lawbook. I must therefore beg your honours' patience and attention to the whole range of an argument, that may perhaps appear uncommon in many things, as well as to points of learning that are more remote and unusual; that the whole tendency of my design may the more easily be perceived, the conclusions better descend, and the force of them be better felt. I shall not think much of my pains in this cause, as I engaged in it from principle. I was solicited to argue this cause as Advocate General; and because I would not, I have been charged with desertion from my office. To this charge I can give a very sufficient answer. I renounced that office, and I argue this cause from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne, that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown; and it is in opposition to a kind of power, the exercise of which in former periods of English history, cost one King of England his head, and another his throne. I have taken more pains in this cause, than I ever will take again, although my engaging in this and another popular cause has raised much resentment. But I think I can sincerely declare that I cheerfully submit myself to every odious name for conscience sake; and from my soul I despise all those, whose guilt, malice, or folly has made them my foes. Let the consequences be what they will, I am determined to proceed. The only principles of public conduct that are worthy of a The search or seizure must be reasonable.—This is a purely judicial question, and in determining it the court gentleman or a man, are to sacrifice estate, ease, health and applause, and even life, to the sacred calls of his country.
“These manly sentiments, in private life, make the good citizen; in public life, the patriot and the hero. I do not say, that when brought to the test, I shall be invincible. I pray God I may never be brought to the melancholy trial, but if ever I should, it will be then known how far I can reduce to practice, principles, which I know to be founded in truth. In the meantime I will proceed to the subject of this writ.”
It appears that some of these writs had been issued, though by what authority is not stated; and the officers of the revenue were afraid to make use of them, unless they could obtain the sanction of the superior court, which had led to the application. It is impossible to devise a more outrageous and unlimited instrument of tyranny, than this proposed writ; and it can not be wondered at, that such an alarm should have been created, when it is considered to what enormous abuses such a process might have led. The following paragraph from the report of Otis' speech before cited, will serve to show what kind of instrument was here prayed for, and some results that might have been expected from it.
"Your Honours will find in the old books concerning the office of a Justice of the Peace, precedents of general warrants to search suspected houses. But in more modern books, you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed; and will find it adjudged, that special warrants only, are legal. In the same manner I rely on it, that the writ prayed for in this petition, being general, is illegal. It is a power, that places the liberty of every man in the hands of every petty officer. I say I admit that special Writs of Assistance, to search special places, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself, before I proceed to other acts of Parliament. In the first place, the writ is universal, being directed 'to all and singular Justices, Sheriffs, Constables, and all other officers and subjects;' so that, in short, it is directed to every subject in the King's dominions. Every one with this writ may be a tyrant in a legal manner, also may control, imprison, or murder any one within the realm. In the next place, it is perpetual, there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the day time, may enter all houses, shops, etc., at will, and command all to assist him. Fourthly, by this writ, not only deputies, etc., but even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us; to be the servant of servants, the most despicable of God's creation?
"Now one of the most essential branches of English liberty is
must look at all the circumstances. In Mason v. Rollins, 24 the court remarked (p. 102):
“It may be conceded that the question whether a seizure or a search is unreasonable, in the language of the Constitution, is a judicial question; but, in determining whether a seizure is or is not unreasonable, we have to look at all of the circumstances under which it is made."
It is only against unreasonable searches and seizures that the amendment affords protection. It becomes important therefore to know what constitutes an unreasonable search or seizure.
An act of Congress authorized the Federal Courts in certain cases on motion of the government's attorney to require the defendant to produce his private books, invoices, and papers, in court, or else the averments made
the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers, may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts.
"Mr. Pew had one of these writs, and when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware: so that, these writs are negotiable from one officer to another; and so your Honours have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-Day acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, Yes. Well then, said Mr. Ware, I will show you a little of my power. I command you to permit me to search your house for uncustomed goods; and went on to search the house from the garret to the cellar; and then served the constable in the same manner! But to show another absurdity in this writ, if it should be established, I insist upon it every person by the 14th Charles Second, has this power as well as the custom-house officers. The words are, 'It shall be lawful for any person or persons authorized, etc.'
What a scene does this open! Every man prompted by revenge, ill humour, or wantonness to inspect the inside of his neighbour's house, may get a writ of assistance. Others will ask it from self-defense; one arbitrary exertion will provoke another, until society be involved in tumult and in blood.” Tu. dor's Life of James Otis, 62-68.
24 2 Biss., 99-102.
by the District Attorney would be taken as confessed by the defendant to be true. This was held in Boyd v. United States25 to be in conflict with the amendment under consideration. The Court declared that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, was within the scope of the fourth amendment of the Constitution in all cases in which a search or seizure would be; because it is a material ingredient and affects the sole object and purpose of search and seizure. Mr. Justice Bradley said (p. 622):
“Is a search and seizure, or, what is equivalent thereto, a compulsory production of a man's private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws, an unreasonable search and seizure' within the meaning of the Fourth Amendment of the Constitution? or, is it a legitimate proceeding?” Again (p. 624): “In order to ascertain the nature of the proceedings intended by the Fourth Amendment to the Constitution under the terms "unreasonable searches and seizures,' it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing Writs of Assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods. These things, and the events which took place in England immediately following the argument about Writs of Assistance in Boston, were fresh in the memories of those who achieved our independence and established our form of government. Prominent and principal among these was the practice of issuing general warrants by the Secretary of State, for searching private houses for the discovery and seizure of books and papers that might be used to convict their owner of the charge of libel.
“The case, however, which will always be celebrated as being the occasion of Lord Camden's memorable discussion of the subject, was that of Entick v. Carrington and Three Other King's Messengers, reported at length in 19 Howell's State Trials, 1029. After describing the power claimed by the Secretary of State for issuing general search warrants, and the manner in which they were executed, Lord Camden says: “Such is the power, and, therefore, one would naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant. If it is law, it will be found in our books; if it is not to be found there, it is not law.
25 116 U. S., 616, 622.
" "The great end for which men entered into society was to secure their property. That right is reserved 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. 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 can not 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