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goods supposed to be smuggled, where there is usually greater difficulty in giving description, and where, consequently, more latitude should be permitted than in the case of property stolen.

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."2 And the statutes upon this subject will 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,3 and other assistance can lawfully be called in by the officer 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 truth of the complaint made; and it would also be a fatal objection to a statute authorizing such a warrant if it permitted a condemnation or other final disposition of the goods, without notice to the claimant, and without an opportunity for a hearing being afforded him.5

1 Sandford v. Nichols, 13 Mass. 286; s. c. 7 Am. Dec. 151; Archbold, Cr. Law, 143. "A certain quantity of rum being about and not exceeding 100 gallons is sufficient. State v. Fitzpatrick, 11 Atl. Rep. 773 (R. I.).

22 Hale, P. C. 150. See Archbold, Cr. Law (7th ed.), 145; Com. v. Hinds, 145 Mass. 182.

an inventory is made by the officer. Hussey v. Davis, 58 N. H. 317.

5 The "Search and Seizure clause in some of the prohibitory liquor laws was held void on this ground. Fisher v. McGirr, 1 Gray, 1; Greene v. Briggs, 1 Curtis, 311; Hibbard v. People, 4 Mich. 126. See also Matter of Morton, 10 Mich. 208; Sullivan v. Oneida, 61 Ill. 242;

32 Hale, P. C. 150; Archbold, Cr. State v. Snow, 3 R. I. 64, for a somewhat Law (7th ed.), 145.

4 2 Hale, P. C. 150; Bell v. Clapp, 10 Johns. 263; s. c. 6 Am. Dec. 339; Hibbard v. People, 4 Mich. 126; Fisher v. McGirr, 1 Gray, 1. If the statute ordains that the warrant shall require the officer to make an inventory, one omitting this command is no protection, though in fact

similar principle. It is not competent by law to empower a magistrate on mere information, or on his own personal knowledge, to seize and destroy gaming-tables or devices without a hearing and trial. Lowry r. Rainwater, 70 Mo. 152; s. c. 35 Am. Rep. 420. An act which declared that all nets, &c. used in catching fish in

The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but only after lawful evidence of an offence actually committed.1 Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him, 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 have been smuggled into the country in violation of the revenue laws, 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 explosive and dangerous material so kept as to endanger the public safety. A statute which should permit the breaking and entering a man's house, and 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 desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious. 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

persons,

violation thereof should be forfeited, and might be seized and destroyed or sold by the peace officer, was declared void in Hey Sing Jeck v. Anderson, 57 Cal. 251. After seizure of money and acquittal of larceny, the money must be delivered to defendant. State v. Williams, 61 Iowa, 517.

We do not say that it would be incompetent to authorize, by statute, the issue of search-warrants for the prevention of offences in some cases; but it is difficult to state any case in which it might be proper, except in such cases of attempts, or of preparations to commit crime, as are in themselves criminal.

2 The fourth amendment to the Constitution of the United States, found also in many State constitutions, would clearly

preclude the seizure of one's papers in order to obtain evidence against him; and the spirit of the fifth amendment — that no person shall be compelled in a criminal case to give evidence against himself - would also forbid such seizure.

8 These are the most common cases, but in the following, search-warrants are also sometimes provided for by statute: books and papers of a public character, retained from their proper custody; females supposed to be concealed in houses of ill-fame; children enticed or kept away from parents or guardians; concealed weapons; counterfeit money, and forged bills or papers. See cases under English statutes specified in 4 Broom and Hadley's Commentaries, 332.

and feelings of others. To incline against the enactment of such laws is to incline to the side of safety. In principle they are

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 post-masters, 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. See Ex parte Jackson, 96 U. S. 727. 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 be. cause 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 public 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 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? This decision has been followed in some other cases. Henisler v. Freedman, 2 Pars. Sel. Cas. (Pa.) 274; First National Bank of Wheeling v. Merchants' National Bank, 7 W. Va. 544; Ex parte Brown, 72 Mo. 83; s. c. 37 Am. Rep. 426; Woods v. Miller, 55 Iowa, 168: U. S. v. Hunter, 15 Fed. Rep. 712. See Gray, Communication by Telegraph, ch. v.

We should suppose, were it not for the opinions to the contrary by tribunals so eminent, that the public could not be en-> titled 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 requir ing his servants to take from his desks his private letters and journals, and bring them into court on subpæna duces tecum. Any such compulsory process to obtain it seems 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. Letters and sealed packages subject to letter postage in the mail can be opened and examined only under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. Ex parte Jackson, 96 U. S. 727. See this case for

objectionable; in the mode of execution they are necessarily odious; and they 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 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 to have been unfounded.2 But if he exceed the command. by searching in places not described therein, or by seizing 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.3 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.4

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

a construction of the law of Congress for excluding improper matter from the mails. For an account of the former and present English practice on opening letters in the mail, see May, Constitutional History, c. 11; Todd, Parliamentary Government, Vol. I. p. 272; Broom, Const. Law, 615.

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; 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 name-
less 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.

2 Barnard v. Bartlett, 10 Cush. 501. After the goods seized are taken before the magistrate, the officer is not liable for them to the owner. Collins v. Lean, 68 Cal. 284.

3 Crozier v. Cudney, 9 D. & R. 224; Same case, 6 B. & C. 232; State v. Brennan's Liquors, 25 Conn. 278. Where the warrant was for the search of the person, and the goods were found on the floor of the room were he was, their seizure was held lawful. Collins v. Lean, 68 Cal. 284.

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

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 but in a manner to be prescribed by law." To us, after fourfifths 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." 2 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 instrument of punishment, and with whom insult and outrage may appear quite in the line of his duty. However con

1 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 Pa. 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; Bean v. State, 25 Tex. App. 346. 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; Carter v. State, 82 Ala. 13. 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 under

stood at the common law. Pond v. People, 8 Mich. 150; State v. Middleham, 62 Iowa, 150; State v. Scheele, 18 Atl. Rep. 256 (Conn.); Parrish v. Com., 81 Va, 1; Bledsoe v. Com., 7 S. W. Rep. 884 (Ky.). 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 Schnier v. People, 23 Ill. 17; Patten v. People, 18 Mich. 314; Hinton v. State, 24 Tex. 454; People v. Flanagan, 60 Cal. 2. But the belief must be bona fide and upon reasonable grounds. State v. Peacock, 40 Ohio St. 333.

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

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