examination of books and papers with a view to discover the evidence of crime, might possibly not be void on constitutional grounds in some other cases; but the power of the legislature to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons; and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against the enact

ment of such laws, is to incline to the side of safety.1 In [307] principle they are objectionable; in the mode of execu

tion they are necessarily odious; and they tend to invite

1 Instances sometimes occur in which ministerial officers take such liberties, in endeavoring to detect and punish offenders, as are even more criminal than the offences they seek to punish. The employment of spies and decoys to lead men on to the commission of crime, on the pretence of bringing criminals to justice, cannot be too often or too strongly condemned; and that prying into private correspondence by officers, which has sometimes been permitted by postmasters, is directly in the face of the law, and cannot be excused. The importance of public confidence in the inviolability of correspondence through the post-office cannot well be overrated; and the proposition to permit letters to be opened, at the discretion of a ministerial officer, would excite general indignation. In Maine it has been decided that a telegraph operator may be compelled to disclose the contents of a message sent by him for another party, and that no rule of public policy would forbid. State v. Litchfield, 58 Me. 267. The case is treated as if no other considerations were involved than those which arise in the ordinary case of a voluntary disclosure by one private person to another, without necessity. Such, however, is not the nature of the communication made to the operator of the telegraph. That instrument is used as a means of correspondence, and as a valuable, and in many cases an indispensable, substitute for the postal facilities; and the communication is made, not because the party desires to put the operator in possession of facts, but because transmission without it is impossible. It is not voluntary in any other sense than this, that the party makes it rather than deprive himself of the benefits of this great invention and improvement. The reasons of a public nature for maintaining the secrecy of telegraphic communication are the same with those which protect correspondence by mail; and though the operator is not a publie officer, that circumstance appears to us immaterial. He fulfils an important public function, and the propriety of his preserving inviolable secrecy in regard to communications is so obvious, that it is common to provide statutory penalties for disclosures. If on grounds of public

abuse and to cover the commission of crime. We think it would generally be safe for the legislature to regard all those searches and seizures" unreasonable" which have hitherto been unknown to the law, and on that account to abstain from authorizing them; leaving parties and the public to the accustomed remedies.1

We have said that if the officer follows the command of his warrant he is protected; and this is so even when the complaint proves policy the operator should not voluntarily disclose, why do not the same considerations forbid the courts compelling him to do so? Or if it be proper to make him testify to the correspondence by telegraph, what good reason can be given why the postmaster should not be made subject to the process of subpoena for a like purpose, and compelled to bring the correspondence which passes through his hands into court, and open it for the purposes of evidence?

66

We must maintain the opinion, notwithstanding the decision of so eminent a tribunal, that the public are not entitled to a man's private correspondence, whether obtainable by seizing it in the mails, or by compelling the operator of the telegraph to testify to it, or by requiring his servants to take from his desks his private letters and journals, and bring them into court on subpoena duces tecum. Any such compulsory process to obtain it would be nothing short of a most arbitrary and unjustifiable seizure of private papers; such an unreasonable seizure" as is directly condemned by the Constitution. In England, the secretary of state sometimes issues his warrant for opening a particular letter, where he is possessed of such facts as he is satisfied would justify him with the public; but no American officer or body possesses such authority, and its usurpation should not be tolerated. For an account of the former and present English practice on this subject, see May, Constitutional History, c. 11; Todd, Parliamentary Government, Vol. I. p. 272; Broom, Const. Law, 615.

66

A search-warrant for libels and other papers of a suspected party was illegal at the common law. See 11 State Trials, 313, 321; Archbold, Cr. Law (7th ed.), 141; Wilkes v. Wood, 19 State Trials, 1153. "Search-warrants were never recognized by the common law as processes which might be availed of by individuals in the course of civil proceedings, or for the maintenance of any mere private right; but their use was confined to the case of public prosecutions instituted and pursued for the suppression of crime, and the detection and punishment of criminals. Even in those cases, if we may rely on the authority of Lord Coke, their legality was formerly doubted; and Lord Camden said that they crept into the law by imperceptible practice. But their legality has long been considered to be established, on the ground of public necessity; because without them felons and other malefactors would escape detection." Merrick, J., in Robinson v. Richardson, 13 Gray, 456. "To enter a man's house," said Lord Camden, "by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour." See his opinion in Entinck v. Carrington, 19 State Trials, 1029; s. c. 2 Wils. 275; and Broom, Const. Law, 558; Huckle v. Money, 2 Wils. 205; Leach v. Money, 19 State Trials, 1001; s. c. 3 Burr. 1692; and 1 W. Bl. 555; Note to Entinck v. Carrington, Broom, Const. Law. 613.

But if he exceed the command

to have been unfounded.1 [308] by searching in places not described therein, or by seiz ing persons or articles not commanded, he is not protected. by the warrant, and can only justify himself as in other cases where he assumes to act without process.2 Obeying strictly the command of his warrant, he may break open outer or inner doors, and his justification does not depend upon his discovering that for which he is to make search."

In other cases than those to which we have referred, and subject to the general police power of the State, the law favors the complete and undisturbed dominion of every man over his own premises, and protects him therein with such jealousy that he may defend his possession against intruders, in person or by his servants or guests, even to the extent of taking the life of the intruder, if that seem essential to the defence.1

Quartering Soldiers in Private Houses.

A provision is found incorporated in the constitution of nearly every State, that "no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war

Barnard v. Bartlett, 10 Cush. 501.

2 Crozier v. Cudney, 9 D. & R. 224; Same case, 6 B. & C. 232; State v. Brennan's Liquors, 25 Conn. 278.

32 Hale, P. C. 151; Barnard v. Bartlett, 10 Cush. 501.

That in defence of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence, even to the taking of life, see Shorter v. People, 2 N. Y. 193; Yates v. People, 32 N. Y. 509; Logue v. Commonwealth, 38 Penn. St. 265; Pond v. People, 8 Mich. 150; Maher v. People, 24 Ill. 241; Bohannan v. Commonwealth, 8 Bush, 481; s. c. 8 Am. Rep. 474. But except where a forcible felony is attempted against person or property, he should avoid such consequences if possible, and cannot justify standing up and resisting to the death, when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396. But a man assaulted in his dwelling is under no obligation to retreat; his house is his castle, which he may defend to any extremity. And this means not simply the dwelling-house proper, but includes whatever is within the curtilage as understood at the common law. Pond v. People, 8 Mich. 150. And in deciding what force it is necessary to employ in resisting the assault, a person must act upon the circumstances as they appear to him at the time; and he is not to be held criminal because on a calm survey of the facts afterwards it appears that the force employed in defence was, excessive See the cases above cited. Also Schiner v. People, 23 Ill. 17; Patten v. People, 18 Mich. 314; Henton v. State, 24 Texas, 454.

but in a manner to be prescribed by law." To us, after four-fifths of a century have passed away since occasion has existed for complaint of the action of the government in this particular, the repetition of this declaration seems to savor of idle form and ceremony; but "a frequent recurrence to the fundamental principles of the Constitution" can never be unimportant, and indeed may well be regarded as "absolutely necessary to preserve the advantages of liberty, and to maintain a free government." It is difficult to imagine a more terrible engine of oppression than the power in the executive to fill the house of an obnoxious person with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will; who is sent as an instru

*

ment of punishment, and with whom insult and outrage [* 309] may appear quite in the line of his duty. However con

trary to the spirit of the age such a proceeding may be, it may always be assumed as possible that it may be resorted to in times of great excitement, when party action is generally violent; and "the dragonades of Louis XIV. in France, of James II. in Scotland, and those of more recent and present date in certain countries, furnish sufficient justification of this specific guaranty."2 The clause, as we find it in the national and State constitutions, has come down to us through the Petition of Right, the Bill of Rights of 1688, and the Declaration of Independence; and it is but a branch of the constitutional principle, that the military shall in time of peace be in strict subordination to the civil power.3

' Constitutions of Massachusetts, New Hampshire, Vermont, Florida, Illinois, and North Carolina. See also Constitutions of Virginia, Nebraska, and Wisconsin, for a similar declaration.

2

3

Lieber, Civil Liberty and Self-Government, c. 11.

Story on the Constitution, §§ 1899, 1900; Rawle on Constitution, 126. In exceptional cases, however, martial law may be declared and enforced, whenever the ordinary legal authorities are unable to maintain the public peace, and suppress violence and outrage. Todd, Parliamentary Government in England, Vol. I. p. 342; 1 Bl. Com. 413-415. As to martial law in general, see Ex parte Milligan, 4 Wall. 129.

[351]

Criminal Accusations.

Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony were made in the form of an indictment by a grand jury; and this process is still retained in many of the States, while others have substituted in its stead an information filed by the prosecuting officer of the State or county. The mode of investigating the facts, however, is the same in all; and this is through a trial by jury, surrounded by certain safeguards which are a well understood part of the system, and which the government cannot dispense with.

First, we may mention that the humanity of our law always presumes an accused party innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or converts the presumption of innocence into an adjudged fact.2

If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, while as yet

The indictment, to accomplish the purpose of the constitutional requirement, should set out the material facts charged against the accused. State v. O'Flaherty, 7 Nev. 153. This, however, would not preclude the legislature from establishing forms, provided they furnished such reasonable information as would apprize the accused of the charge he was to meet.

2 It is sometimes claimed that where insanity is set up as a defence in a criminal case, the defendant takes upon himself the burden of proof to establish it, and that he must make it out beyond a reasonable doubt. For recent cases taking this view, see State v. Felton, 32 Iowa, 49; McKenzie v. State. 42 Geo. 334; Boswell v. Commonwealth, 20 Grat. 860. Other well-considered cases do not support this view. The burden of proof, it is held, rests throughout upon the prosecution to establish all the conditions of guilt; and the presumption of innocence that all the while attends the prisoner entitles him to an acquittal, if the jury are not reasonably satisfied of his guilt. A reasonable doubt of his capacity to commit the crime as justly entitles him to an acquittal, as a reasonable doubt on any other branch of the case. See State v. Marler, 2 Ala. 43; People v. McCann, 16 N. Y. 58; Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; Hopps v. People, 31 Ill. 385; People v. Garbutt, 17 Mich. 23; State v. Klinger, 43 Mo. 127; State v. Hundley, 46 Mo. 414.