law that gives any magistrate such a power? I can safely answer, there is none; and, therefore, it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society.

"But though it cannot be maintained by any direct law, yet it bears a resemblance, as was urged, to the known case of search and seizure for stolen goods. I answer that the difference is apparent. In the one I am permitted to seize my own goods, which are placed in the hands of a public officer, till the felon's conviction shall entitle me to restitution. In the other, the party's own property is seized before and without conviction, and he has no power to reclaim his goods, even after his innocence is declared by acquittal.

66 6

The case of searching for stolen goods crept into the law by imperceptible practice. No less a person than my Lord Coke denied its legality, 4 Inst. 176; and, therefore, if the two cases resembled each other more than they do, we have no right, without an act of Parliament, to adopt a new practice in the criminal law, which was never yet allowed from all antiquity. Observe, too, the caution with which the law proceeds in this singular case. There must be a full charge upon oath of a theft committed. The owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant, to show them to the officer, who must see that they answer the description.

"If it should be said that the same law which has with so much circumspection guarded the case of stolen goods from mischief, would likewise in this case protect the subject by adding proper checks; would require proofs beforehand; would call up the servant to stand by and overlook; would require him to take an exact inventory, and deliver a copy; my answer is, that all these precautions would have been long since established by law, if the power itself had been legal; and that the want of them is an undeniable argument against the legality of the thing.'

"Then, after showing that these general warrants for search and seizure of papers originated with the Star Chamber, and never had any advocates in Westminster

Hall except Chief Justice Scroggs and his associates, Lord Camden proceeds to add:

'Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown, where the law forceth evidence out of the owner's custody by process. There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. In the criminal law such a proceeding was never heard of; and yet there are some crimes, such, for instance, as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no papersearch in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem, that search for evidence is disallowed upon the same principle. Then, too, the innocent would be confounded with the guilty.'

"After a few further observations, his Lordship concluded thus: 'I have now taken notice of everything that has been urged upon the present point; and upon the whole we are all of opinion, that the warrant to seize and carry away the party's papers in the case of a seditious libel, is illegal and void.'

"The principles laid down in this opinion," said Justice Bradley (p. 630), "affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that

right has never been forfeited by his conviction of some public offense,-it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.

"Can we doubt that when the Fourth and Fifth Amendment to the Constitution of the United States was penned and adopted, the language of Lord Camden was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and 'unreasonable' character of such seizures? Could the men who proposed these amendments in the light of Lord Camden's opinion, have put their hands to a law like that of March 3, 1863, and March 2, 1867, before recited? It seems to us that the question cannot admit of a doubt. They never would have approved of them. The struggles against arbitrary power in which they had been engaged for more than twenty years, would have been too deeply engraved in their memories to have allowed them to approve of such insidious disguises of the old grievance which they had so deeply abhorred."

The conclusion that the court reached on this point was, that it did not require an actual entry upon one's premises or that they should be searched and papers seized, in order to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment, and that a compulsory production of private papers, etc., to be used against a party in a criminal proceeding is prohibited by the spirit of this amendment.

The provisions of this amendment as to search and seizure do not prevent the Court from issuing a subpoena duces tecum; nor can a corporation refuse to produce papers or answer incriminating questions under it.

The distinction between a corporation and a person as to their respective rights is this:

A corporation is created by the State presumably for the benefit of the public. The powers conferred upon it

are limited by the law. It cannot make a contract which the law does not authorize. There is a right reserved to the legislature to investigate contracts of a corporation and ascertain whether it has exceeded its powers. For these reasons a corporation cannot claim an immunity from producing its papers or books, or answering incriminating questions which an individual might claim under this amendment. He can conduct his business in his own way without being bound to answer questions which would incriminate him. Receiving but little protection from the State, he is under but little obligation to it.26

Nor does a seizure of goods by a marshal in the execution of an ordinary process in the usual way violate the provisions of the amendment.27

What amounts to an unreasonable search? A compulsory production of private papers to be used in evidence against the owner is an unreasonable search and seizure within this amendment.28

Also an actual entry on the premises is not necessary to constitute seizure. An actual entry on the premises and seizure of books and papers is not necessary to make an unreasonable search within this clause. It is sufficient if a party is compelled to produce papers and books for use against him in a criminal proceeding, or for a forfeiture.

The warrant.-The warrant is the officer's authority for making the search. This cannot be issued until there is filed with the judicial officer an affidavit or affirmation setting forth that of affiant's own knowledge the facts make out a case of probable cause.

In United States v. Tureaud,29 the affidavit was in the following form (p. 622):

"George A. Dice, being duly sworn, says: All the statements and averments in the foregoing information are true, as he verily believes.

"Sworn to and subscribed before me this 20th day of May, 1884.

"E. R. Hunt, U. S. Commissioner."

20 Hale v. Henkel, 201 U. S., 43-74.

27 American Tobacco Co. v. Werckmeister, 207 U. S., 284-302. 28 Boyd v. United States, 116 U. S., 616.

29 20 Fed. Rep., 621.

After going generally into the subject of the sufficiency of affidavits, Billings, D. J., held this affidavit insufficient and said (p. 624): "It does not appear, from the affidavit upon which these procedures are based, that the affiant has any knowledge whatever of the truth of the matters contained in the informations; but simply that 'all the statements and averments are true as he verily believes;' i. e., that he believes them all to be true, without any showing as to the grounds of his belief. The constitutional provision must be utterly disregarded, or else it must be held that there is here no probable cause supported by the necessary proof."

In Territory v. Cutinola,30 it was held that an information filed by a United States District Attorney in his official capacity is sufficient to authorize the issuance of a warrant for search and seizure, without being supported by an affidavit, and that such an issuance does not violate the fourth amendment to the Constitution of the United States.

This decision criticises the decision in United States v. Tureaud, above cited, and says, "Except that part of it which holds an affidavit upon belief insufficient, the decision is a mere dictum of the judge, and cannot be regarded as authority" (p. 316).

What is probable cause?-In United States v. Tureaud (above cited), it was held: The probable cause supported by oath or affirmation, prescribed by the fundamental law of the United States, is the oaths or affidavits of persons who, of their own knowledge, depose to the facts which constitute the offense.

Mr. Justice Bradley held:31 "The probable cause referred to, and which must be supported by oath or affirmation, and upon which alone a warrant can issue, must be submitted to the committing magistrate himself, and not merely to an official accuser, so that the magistrate may exercise his judgment on the sufficiency of the ground for believing the accused person guilty; and this ground must amount to a probable cause of belief or suspicion of the accused person's guilt."

Letters and packages.-Congress cannot authorize the 30 4 New Mexico, 305-316.

81 3 Woods, 502.