... hend him, and did there search for his books, and papers in several rooms and in the house. . . . This Special Verdict was twice solemnly argued at the bar; in Easter Term last by serjeant Leigh for the plaintiff, and Burland, one of the king's serjeants, for the defendants: and in this present term by serjeant Glynn for the plaintiff, and Nares, one of the King's serjeants, for the defendants. ... Easter Term, 5 Geo. 3. Counsel for the plaintiff. At the trial of this cause the defendants relied upon two defences; 2dly, that the warrant under which the defendants acted, is a legal warrant, and that they well can justify what they have done by virtue thereof, for that at many different times from the time of the Revolution till this time, the like warrants with that issued against the plaintiff in this case have been granted by secretaries of state, and executed by the messengers in ordinary for the time being. . . As to the second. A power to issue such a warrant as this is contrary to the genius of the law of England; and even if they had found what they searched for, they could not have justified under it. But they did not find what they searched for, nor does it appear that the plaintiff was the author of any of the supposed seditious papers mentioned in the warrant; so that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise. . . . No power can lawfully break into a man's house and study to search for evidence against him. This would be worse than the Spanish inquisition; for ransacking a man's secret drawers and boxes, to come at evidence against him, is like racking his body to come at his secret thoughts. The warrant is to seize all the plaintiff's books and papers without exception, and carry them before Lord Halifax. What? Has a secretary of state a right to see all a man's private letters of correspondence, family concerns, trade and business? This would be monstrous indeed! and if it were lawful, no man could endure to live in this country. In the case of a searchwarrant for stolen goods, it is never granted, but upon the strongest evidence that a felony has been committed, and that the goods are secreted in such a house; and it is to seize such goods as were stolen, not all the goods in the house; but if stolen goods are not found there, all who entered with the warrant are trespassers. Counsel for the Defendants. I am not at all alarmed, if this power is established to be in the secretaries of state. . . . Supposing the practice of granting warrants to search for libels against the state be admitted to be an evil in particular cases, yet to let such libellers escape, who endeavour to raise rebellion, is a greater evil. . . . After time taken to consider, Lord CAMDEN, Lord Chief Justice, delivered the Judgment of the Court for the plaintiff, in the following words: This record hath set up two defences to the action, on both of which the defendants have relied. . . . The second defence stands upon the legality of the warrants; for, this being a justification at common law, the officer is answerable if the magistrate has no jurisdiction. . . . The great question upon the justification will be, whether the warrant to seize and carry away the plaintiff's papers is lawful... This, though it is not the most difficult, is the most interesting question in the cause; because if this point should be determined in favour of the jurisdiction, 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 think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel. The messenger, under this warrant, is commanded to seize the person described, and to bring him with his papers to be examined before the secretary of state. In consequence of this, the house must be searched; the lock and doors of every room, box or trunk must be broken open; all the papers and books without exception, if the warrant be executed according to its tenor, must be seized and carried away; for it is observable, that nothing is left either to the discretion or to the humanity of the officer. 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 secrets 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. . . . If honestly exerted, it is a power to seize that man's papers who is charged upon oath to be the author or publisher of a seditious libel; if oppressively, it acts against every man who is so described in the warrant, though he be innocent. It is executed against the party, before he is heard or even summoned; and the information, as well as the informers, is unknown. It is executed by messengers with or without a constable (for it can never be pretended, that such is necessary in point of law) in the presence or the absence of the party, as the messengers shall think fit, and without a witness to testify what passes at the time of the transaction; so that when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof. If this injury falls upon an innocent person, he is as destitute of remedy as the guilty; and the whole transaction is so guarded against discovery, that if the officer should be disposed to carry off a bankbill, he may do it with impunity, since there is no man capable of proving either the taker or the thing taken. . . Such is the power, and therefore one should naturally expect that the law to warrant it should be clear, in proportion as the power is exorbitant. . . . The great. end, for which men entered into society, was to secure their property. That right is preserved 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, &c. 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 shew by way of justification, that some positive law has empowered or excused him. . Where is the written 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 intitle 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 cleared by acquittal. The case of searching for stolen goods crept into the law by imperceptible practice. It is the only case of the kind that is to be met with. . . . 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 shew them to the officer, who must see that they answer the description. And, lastly, the owner must abide the event at his peril; for if the goods are not found, he is a trespasser; and the officer being an innocent person, will be always a ready and convenient witness against him. On the contrary, in the case before us nothing is described, nor distinguished; no charge is requisite to prove, that the party has any criminal papers in his custody; no person present to separate or select; no person to prove in the owner's behalf the officer's misbehavior.To say the truth, he cannot easily misbehave, unless he pilfers; for he cannot take more than all. . . 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 shewn, 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 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 paper-search 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. . . . 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. 1059. BOYD v. UNITED STATES. (1885. 116 U. S. 616, 6 Sup. 437.) BRADLEY, J. 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; which James 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." This was in February, 1761, in Boston, and the famous debate in which it occurred was perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. "Then and there,” said John Adams, "then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born." 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. In the period from 1762, when the North Briton was started [in London] by John Wilkes, to April, 1766, when the House of Commons passed resolutions condemnatory of general warrants, whether for the seizure of persons or papers, had occurred the bitter controversy between the English government and Wilkes, in which the latter appeared as the champion of popular rights, and was, indeed, the pioneer in the contest which resulted in the abolition of some grievous abuses which had gradually crept into the administration of public affairs. 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. Certain numbers of the North Briton, particularly No. 45, had been very bold in denunciation of the government, and were esteemed heinously libellous. By authority of the secretary's warrant Wilkes's house was searched, and the papers were indiscriminately seized. For this outrage he sued the perpetrators and obtained a verdict of £1000 against Wood, one of the party who made the search, and £4000 against Lord Halifax, the Secretary of State who issued the warrant. 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. The action was trespass for entering the plaintiff's dwelling-house in November, 1762, and breaking open his desks, boxes, &c., and searching and examining his papers. The jury rendered a special verdict, and the case was twice solemnly argued at the bar. Lord CAMDEN pronounced the judgment of the Court in Michaelmas Term, 1765, and the law as expounded by him has been regarded as settled from that time to this, and his great judgment on that occasion is considered as one of the landmarks of English liberty. It was welcomed and applauded by the lovers of liberty in the colonies as well as in the mother country. It is regarded as one of the permanent monuments of the British Constitution, and is quoted as such by the English authorities on that subject down to the present time. 1060. CONSTITUTION OF ILLINOIS. (1818, Bill of Rights, Art. VIII, § 7; 1870, Art. II, § 6.) [Printed ante, as No. 1054.] REVISED STATUTES. (1874, c. 38, §§ 372-375; Rev. St. 1845, p. 292.) Search Warrants. § 1. When complaint is made in writing, verified by affidavit, to any judge or justice of the peace, that personal property (particularly describing the same) has been stolen, embezzled, or fraudulently obtained by false tokens or pretences, and that the complainant believes that it is concealed in any house or place (particularly describing the same), the judge or justice of the peace, if he is satisfied that there is reasonable cause for such belief, shall issue a warrant to search such house or place for such property. § 2. Any such judge or justice of the peace may, on like complaint made on oath, issue search warrants, when satisfied that there is reasonable cause, in the following cases, to-wit: 1. To search for and seize counterfeit or spurious coin, forged bank notes and other forged instruments, or tools, machinery or materials prepared or provided for making either of them. 2. To search for and seize books, pamphlets, ballads, printed papers or other things containing obscene language, or obscene prints, pictures, figures or descriptions, manifestly tending to corrupt the morals of youth, and intended to be sold, loaned, circulated or distributed, or to be introduced into any family, school, or place of education. 3. To search for and seize lottery tickets, or materials for a lottery, unlawfully made, provided or procured, for the purpose of drawing a lottery. 4. To search for and seize gaming apparatus, or implements used, or kept and provided to be used in unlawful gaming, in any gaming house, or in any building, apartment, or place resorted to for the purpose of unlawful gaming. § 3. All such warrants shall be directed to the sheriff or any constable of the county, commanding such officer to search in the day time the house or place where the stolen property or other things for which he is required to search are believed to be concealed (which place and property, or things to be searched for, shall be particularly designated and described in the warrant), and to bring such stolen property or other things when found, and the person in whose possession they are found, to the judge or justice of the peace who issued the warrant, or to some other judge or justice of the peace, or court having cognizance of the case. ... § 4. If there is satisfactory evidence that any property stolen, embezzled, or obtained by false tokens or pretences, or that any of the other things for which a search warrant may be issued by the provisions of this act, are kept, concealed, prepared or used in a particular house or place, a warrant may be issued by two judges or justices of the peace, to authorize the search of such house or place in the night time, and to bring the property or things described in the warrant or summons, and the person in whose possession they are found, before either of the judges or justices who issued the warrant, or some other judge or justice of the peace of the county. |