suspected places for smuggled goods, and which 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." All these matters are now a long way in the past; but it has not been deemed unwise to repeat in the State constitutions, as well as in the national, the principles already settled in the common law upon this vital point in civil liberty.

For the service of criminal process, the houses of private persons are subject to be broken and entered under circumstances which are fully explained in the works on criminal law, and need not be restated here. And there are also cases where search-warrants are allowed to be issued, under which an officer may be protected in the like action. But as search-warrants are a species of process exceedingly arbitrary in character, and not to be resorted to except for very urgent and satisfactory reasons, the rules of law which pertain to them are of more than ordinary strictness; and if the party acting under them expects legal protection, it is essential that these rules be carefully observed.

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.' It had been found by the special verdict that many such warrants had been issued since the revolution; but he wholly denied their legality. He referred the origin of the practice to the Star Chamber, which in pursuit of libels had given searchwarrants to their messenger of the press; a practice which, after the abolition of the Star Chamber, had been revived and authorized by the licensing act of Charles II., in the person of the secretary of state. And he conjectured that this practice had been continued after the expiration of that act,- a conjecture shared by Lord Mansfield and the Court of King's Bench. With the unanimous concurrence of the other judges of his court, this eminent magistrate now finally condemned this dangerous and unconstitutional practice." May's Constitutional History of England, ch. 11. See also Semayne's case, 5 Coke, 91; 1 Smith's Lead. Cas. 183; Entinck v. Carrington, 2 Wils. 275, and 19 State Trials, 1030; Money v. Leach, Burr. 1742; Wilkes's case, 2 Wils. 151, and 19 State Trials, 1405. For debates in Parliament on the same subject, see Hansard's Debates, vol. 15, p. 1393 to 1418, vol. 16, pp. 6 and 209. In further illustration of the same subject, see De Lolme on the English Constitution, ch. 18; Story on Const. §§ 1901, 1902; Bell v. Clapp, 10 Johns. 263; Sailly v. Smith, 11 Johns.

500.

1 Works of John Adams, Vol. 2, 523 and 524; 2 Hildreth's U. S. 499; 4 Bancroft's U. S. 414; Quincy's Massachusetts Reports, 51. See also the Appendix to these Reports, p. 395, for a history of writs of assistance.

U. S. Const. 4th amendment.

In the first place, they are only to be granted in the cases where they are expressly authorized by law, and not until after a showing made before a magistrate, under oath, that a crime has been committed, and that the party complaining has reasonable cause to suspect that the offender or the property which was the subject or the instrument of the crime is concealed in some specified house or place. And where the law requires a showing of reasonable cause for suspicion, it intends that evidence shall be given which shall seem to the magistrate to warrant such suspicion; for the suspicion itself is no ground for the warrant, except as the facts justify it.2

3

In the next place, the warrant which the magistrate issues must particularly specify the place to be searched, and the object for which the search is to be made. If a building is to be searched, the name of the owner or occupant should be given, or, if not occupied, it should be particularly described, so that the officer will be left to no discretion in respect to the place; and a misdescription in regard to the ownership, or a description so general that it applies equally to several buildings or places, would render the warrant void in law.5 Search-warrants are obnoxious to very serious objections, and the law requires the utmost particularity in these cases before the privacy of a man's premises is allowed to be invaded by the minister of the law.6 And describing goods to be searched for as "goods, wares, and merchandises," without more particular description, is also bad, even in the case of goods supposed to be smuggled, and where there is usually greater difficulty in giving description, and consequently should be more latitude permitted than in the case of stolen property.

1

2 Hale, P. C. 149; Bish. Cr. Pro. § 716-719; Arch. Cr. L. 147.

2 Commonwealth v. Lottery Tickets, 5 Cush. 369.

3 Stone v. Dana, 5 Met. 98.

Sandford v. Nichols, 13 Mass. 286; Allen v. Staples, 6 Gray, 491.

A warrant to search the "houses and buildings of Hiram Ide and Henry Ide" is too general. Humes v. Tabor, 1 R. I. 464. See McGlinchey v. Barrows, 41 Me. 74. So a warrant for the arrest of an unknown person under the designation of John Doe, without further description, is void. Commonwealth v. Crotty, 10 Allen, 403.

6

A warrant for searching a dwelling-house will not warrant a forcible entry into a barn adjoining the dwelling-house. Jones v. Fletcher, 41 Me. 254; Downing v. Porter, 8 Gray, 539; Bish. Cr. Pro. § 716-719.

7 Sandford v. Nichols, 13 Mass. 286; Arch. Cr. L. 143.

Lord Hale says: "It is fit that such warrants to search do express that search be made in the daytime; and though I do not say they are unlawful without such restriction, yet they are very inconvenient without it; for many times, under pretence of searches made in the night, robberies and burglaries have been committed, and at best it creates great disturbance." 1 And the statutes upon the subject will very generally be found to provide for searches in the daytime only, except in very special cases.

The warrant should also be directed to the sheriff or other proper officer, and not to private persons; though the party complainant may be present for the purposes of identification,2 and other assistance can lawfully be called in, if necessary.

The warrant must also command that the goods or other articles to be searched for, if found, together with the party in whose custody they are found, be brought before the magistrate, to the end that, upon further examination into the facts, the goods and the party in whose custody they were may be disposed of according to law. And it is a fatal objection to such a warrant, that it leaves the disposition of the goods searched for to the ministerial officer, instead of requiring them to be brought before the magistrate, that he may pass his judgment upon the charge of violation of law; as it also would be a fatal objection to the law authorizing such warrant, if it allowed a condemnation, or other final disposition of the goods, without notice to the claimant, and an opportunity for a hearing afforded him.1

The warrant is not allowed to obtain evidence of an intended crime; but only after lawful evidence of an offence actually committed. Nor even then is it allowable to invade one's privacy for the purpose of obtaining evidence against him,5

1 2 Hale, P. C. 150.

3

2 Hale, P. C. 150.

Arch. Cr. Law, 7th ed. 145.
Arch. Cr. Law, 7th ed. 145.

2 Hale, P. C. 150; Bell v. Clapp, 10 Johns. 263; Hibbard v. People, 4 Mich. 126; Fisher v. McGirr, 1 Gray, 1.

The "search and seizure" clause in some of the prohibitory liquor laws, authorized a warrant to search for liquors illegally kept for sale, which, if found, might be destroyed without the owner being charged with any offence, and being notified and an opportunity afforded for making defence; and these clauses were held void, as well as the process issued under them, even when the proceedings were so conducted as to avoid the constitutional objection. Fisher v. McGirr, 1 Gray, 1; Hibbard v. People, 4 Mich. 126; Green v. Briggs, 1 Curtis, 311. See also Matter of Morton, 10 Mich. 208, for a somewhat similar principle.

The fourth amendment to the Constitution of the United States, found also

except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction. Those special cases are familiar and well understood in the law. Search-warrants have heretofore been allowed to search for stolen goods, for goods supposed to be smuggled, for implements of gaming or counterfeiting, for lottery tickets or prohibited liquors kept for sale contrary to law, for obscene books and papers kept for sale or circulation, and for powder or other dangerous or explosive material, so kept as to endanger the public safety.1 A statute which should permit the breaking and entering of a man's house, the 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 trunks broken open, his private books, papers, and letters exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons, and this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will more often select them with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against such laws is to incline to the side of safety. They are

in many State constitutions, is very specific in its protection. "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." It is believed that under this amendment, the seizure of one's papers, in order to obtain evidence against him, is clearly forbidden; and the spirit of the fifth amendment, that no person shall be compelled, in a criminal case, to be a witness against himself, would also forbid such seizure.

1 In addition to these, a few cases, sometimes provided for by statute, may be referred to. For books and papers of a public character, retained from their lawful custody; for females, supposed to be concealed in houses of ill-fame; for children, enticed or kept away from parents and guardians; for concealed weapons; and for counterfeit money, and forged bills or papers.

2 Instances sometimes occur in which ministerial officers take such liberties, in endeavoring to discover and punish offenders, as are even more criminal than the offences they seek to punish. The employment of spies and decoys, to

obnoxious in principle, necessarily odious in the mode of execution, and tend to invite 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 ground 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 justified, and this is so even if the complaint proves to have been unfounded.2 But if he exceed the command by

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 the prying into private correspondence by officers, which has sometimes been permitted by postmasters, is directly in the face of the law, and utterly unjustifiable. 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 be met with general indignation. The same may be said of private correspondence by telegraph; the public are not entitled to it for any purpose; and a man's servants might, with the same propriety, be subponed to bring into court his private letters and journals, as a telegraph operator to bring in his private correspondence. In either case, it would be equivalent to an unlawful and unjustifiable seizure of his 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 ist 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 permitted. See May's Constitutional History, ch. 11, for an account of-the former and present English practice on this subject.

1 A search-warrant for libels and other papers of a suspected party was illegal at the common law. See 11 State Trials, 313, 321 ; Arch. Cr. Law (7th ed.), 141. "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 cases 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 Entick v. Carrington, 19 State Trials, 1029; S. C. 2 Wils. 275; Huckle v. Money, 2 Wils. 205.

2 Barnard v. Bartlett, 10 Cush. 501.