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country, and, we might say, either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a man's private papers or the compulsory production of them for the purpose of using them in evidence against him in a criminal case or in a proceeding to enforce the forfeiture of his property. Even the act under which the obnoxious writs of assistance were issued' did not go as far as this, but only authorized the examination of ships and vessels and persons found therein, for the purpose of finding goods prohibited to be imported or exported, or on which the duties were not paid, and to enter into and search any suspected vaults, cellars, or warehouses for such goods. The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo.
In the one case, the Government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; ’ and the like seizures have been authorized by our own revenue acts from the commencement of the Government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789 (1 Stat., 29, 43), contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of his kind as “unreasonable," and they are not embraced within the prohibition of the amendment. So, also, the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. So, also, the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within this category. (Commonweaith v. Dana, 2 Met. (Mass.), 329.) Many other things of this character might be enumerated. The entry upon premises, made by a sheriff or other oflicer of the law, for the purpose of seizing goods and chattels by virtue of a judicial writ, such as an attachment, a sequestration, or an execution, is not within the prohibition of the fourth or fifth amendment, or any other clause of the Constitution; nor is the examination of a defendant under oath after an ineffectual execution, for the purpose of discovering secreted property or credits, to be applied to the payment of a judgment against him, obnoxious to those amendments.
But, when examine) with care, it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. In the case of stolen goods, the owner from whom they were stolen is entitled to their possession; and in the case of excisable or dutiable articles, the Government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment; and in the case of goods seized on attachment or execution, the creditor is entitled to their seizure in satisfaction of his debt; and the examination of a defendant under oath to obtain a discovery of concealed property or credits is a proceeding merely civil to effect the ends of justice, and is no more than what the court of chancery would direct on a bill for discovery, whereas by the proceeding now under consideration the sourt attempts to extort from the party his private books and papers to make him liable for a penalty or to forfeit his property.
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
1 NOTE BY THE COURT.-13 and 14 Car., 2, c. 11, sec. 5.
NOTE BY THE COURT.-12 Car., 2, c. 19; 13 and 14 Car., 2, c. 11; 6 and 7 W. and M., c. 1; 6 Geo., 1, c. 21 ; 26 Geo., 3, c. 59; 29 Geo., 3, c. 68, sec. 153; etc.; and see the article, Excise, etc.," in Burn's Justice, and Williams's Justice, passim, and Evans's Statutes, vol. 2, p. 221, subpages 176, 190, 225, 361, 431, 447.
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 liberyt 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 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, 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, has been very bold in denunciation of the Government and were esteemed heinously libelous. By authority of the Secretary's warrant Wilke's house was searched and his papers were indiscriminately seized. For this outrage he sued the perpetrators and obtained a verdict of £1,000 against Wood, one of the party who made the search, and £4,000 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 memorial 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 upon plaintiff's dwelling house in November, 1762, and breaking open his desks, boxes, etc., 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.?
1 NOTE BY THE Coukr.--Cooley's constitutional limitations, 301-303 (5th ed., 368, 369). A very full and interesting account of this discussion will be found in the works of John Adams, vol. 2, Appendix 1, pp. 523-525; vol. 10, pp. 183, 233, 244, 256, etc., and in Quincy's reports, pp. 469]482"; and see Paxton's case, ditto 51-57, which was argued in November of the same year (1761). An elaborate history of the writs of assistance is given in the Appendix to Quincy's Reports, above referred to, written by Horace Gray, jr., Esq., now a inember of this court.
- NorE BY THE COURT.--See May's Constitutional History of England, vol. 3 (American ed., vol. 2), ch. 11.; Broom's Constitutional Law, 558; Cox's Institutions of English Government, 437.
As every American statesman during our revolutionary and formative period as a Nation was undoubtedly familiar with this monument of English freedom and considered it as the true and ultimate expression of constitutional law, it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the Constitution and was considered as sufficiently explanatory of what was meant by unreasonable searches and seizures. We think, therefore, it is pertinent to the present subject of discussion to quote somewhat largely from this celebrated judgment.
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.
“ 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, 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. If no 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 a re so far from enduring a seizure th:t they will hardly bear an inspection, and though the eye can not 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 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 can not be maintained by any direct law, yet it bears a resemblance, :'S 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.
“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 nerer 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 housebreaking. to say nothing of forgery and perjury, that are more atrocious than libeling. 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 toward 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 eridence 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 affect the very essence of constitutional liberty and security. They reach further 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 employees of the sanctity of a man's home and the privacies of life. It 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 amendments to the Constitution of the United States were 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 unreasonabl” character of such seizures? Could the men who proposed those amendments, in the light of Lord Camden's opinion, have put their hands to a law like those of March 3, 1863, and March 2, 1867, before recited ? If they could
1 NOTE BY THE COURT.-See further as to searches and seizures, Story on the Constitution, secs. 1901, 1902, and notes ; Cooley's Constitutional Limitations, 299 (5th ed., 365) ; Sedgwick on Stat. and Const. Law, 2d ed., 498; Wharton Com, on Amer, Law, sec. 560'; Robinson v. Richardson, 13 Gray, 454.
not, would they have approved the fifth section of the act of June 22, 1874, which was adopted as a substitute for the previous laws. It seems to us that the question can not admit of a doubt. They never would have approved of them. The struggle against arbitrary power, in which they had been engaged for more than 20 years, would have been too deeply engraved in their memories to have allowed them to approve of such insidious disguises of the old grievande which they had so deeply abhorred.
The views of the First Congress on the question of compelling a man to produce eridence against himself may be inferred from a remarkable section of the judiciary act of 1789. The fifteenth section of that act introduced a great improvement in the law of procedure. The substance of it is found in section 724 of the Revised Statutes, and the section as originally enacted is as follows, to wit:
"All the said courts of the United States shall have power in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion, to give the like judgment for the defendant as in cases of nonsuit and if a defendant shall fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion, as aforesaid, to give judgment against him or her by default.”
The restriction of this proceeding to “cases and under circumstances where they (the parties) might be compelled to produce the same (books or writings) by the ordinary rules of proceeding in chancery,” shows the wisdom of the Congress of 1789. The court of chancery had for generations been weighing and balancing the rules to be observed in granting discovery on bills filed for that purpose, in the endeavor to fix upon such as would best secure the ends of justice. To go beyond the point to which that court had gone may well have been thought hazardous.
Now, it is elementary knowledge that one cardinal rule of the court of chancery is never to decree a discovery which might tend to convict the party of a crime or to forfeit his property. And any compulsory discovery by extorting the party's oath or compelling the production of his private books and papers to convict him of crime or to forfeit his property is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishnan; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it can not abide the pure atmosphere of political liberty and personal freedom.
It is proper to observe that when the objectionable features of the acts of 1863 and 1867 were brought to the attention of Congress, it passed an act to obviate them. By the act of February 25. 1868 (15 Stat., 37), entitled "An act for the protection in certain cases of persons making disclosures as parties or testifying as witnesses," the substance of which is incorporated in section 860 of the Revised Statutes, it was enacted “that no answer or other pleading of any party, and no discovery or evidence obtained by means of any judicial proceeding from any party or witness in this or any foreign country shall be given in evidence or in any manner used against such party or witness, or his property or estate, in any court of the United States, or in any proceeding by or before any officer of the United States, in respect to any crime or for the enforcement of any penalty or forfeiture by reason of any act or omission of such party or witness.".
This act abrogated and repealed the most objectionable part of the act of 1867 (which was then in force), and deprived the Government officers of the convenient method afforded by it for getting evidence in suits of forfeiture; and this is probably the reason why the fifth section of the act of 1874 was afterwards passed. No doubt it was supposed that in this new formi, couched as it was in almost the language of the fifteenth section of the old judiciary act, except leaving out the restriction to cases in which the court of chancery would decree a discovery, it would be free from constitutional objection. But we think it has been made to appear that this result has not been attained, and that the
1 NOTE BY THE COURT.-Sixty-two years later a similar act_was passed in England, viz, the act of 14 and 15 Vict., c. 99, sec. 6. See Pollock on Power of Courts to Com. pel Production of Documents, 5.
? NOTE BY THE COURT.-See Pollock on Production of Documents, 27; 77 Law. Lib., 12 (8).