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customary. The laws of the several States allow the letting of the services of the convicts, either singly or in numbers, to contractors who are to employ them in mechanical trades in or near the prison, and under the surveillance of its officers; but it might well be doubted if a regulation which should suffer the convict to be placed upon the auction block and sold to the highest bidder, either for life or for a term of years, would be in harmony with the constitutional prohibition. It is certain that it would be open to very grave abuses, and it is so inconsistent with the general sentiment in countries where slavery does not exist, that it may well be believed not to have been within the understanding of the people in incorporating the exception with the prohibitory amendment.1

The common law of England permits the impressment of seafaring men to man the royal navy; 2 but this species of servitude was never recognized in the law of America. The citizen may doubtless be compelled to serve his country in her wars; but the common law as adopted by us has never allowed arbitrary discriminations for this purpose between persons of different avocations.

Unreasonable Searches and Seizures.

Near in importance to exemption from any arbitrary control of the person is that maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers, against even the process of the law, except in a few specified cases. maxim that "every man's house is his castle," is made [* 300] a * part of our constitutional law in the clauses prohibit

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The State has no power to imprison a child in a house of correction who has committed no crime, on a mere allegation that he is "destitute of proper parental care, and is growing up in mendicancy, ignorance, idleness, and vice." People v. Turner, 55 Ill. 280; s. c. 8 Am. Rep. 645. Compare Prescott v. State, 19 Ohio, N. s. 184; s. c. 2 Am. Rep. 388.

2 Broadfoot's Case, 18 State Trials, 1323; Fost. Cr. Law, 178; Rex v. Tubbs, Cowp. 512; Ex parte Fox, 5 State Trials, 276; 1 Bl. Com. 419; Broom, Const. Law, 116.

3 There were cases of impressment in America before the Revolution, but they were never peaceably acquiesced in by the people. See Life and Times of Warren, 55.

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Broom, Maxims, 321. The eloquent passage in Chatham's speech on General Warrants is familiar: "The poorest man may, in his cottage, bid defiance to

ing unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.

If in English history we inquire into the original occasion for these constitutional provisions, we shall probably find it in the abuse of executive authority, and in the unwarrantable intrusion of executive agents into the houses and among the private papers of individuals, in order to obtain evidence of political offences either committed or designed. The final overthrow of this practice is so clearly and succinctly stated in a recent work on the constitutional history of England that we cannot refrain from copying the account in the note below.1

all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement." And see Lieber on Civil Liberty and Self-Government, c. 6.

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1.44 'Among the remnants of a jurisprudence which had favored prerogative at the expense of liberty was that of the arrest of persons under general warrants, without previous evidence of their guilt or identification of their persons. This practice survived the Revolution, and was continued without question, on the ground of usage, until the reign of George III., when it received its death-blow from the boldness of Wilkes and the wisdom of Lord Camden. This question was brought to an issue by No. 45 of the North Briton,' already so often mentioned. There was a libel, but who was the libeller? Ministers knew not, nor waited to inquire, after the accustomed forms of law; but forthwith Lord Halifax, one of the secretaries of state, issued a warrant, directing four messengers, taking with them a constable, to search for the authors, printers, and publishers ; and to apprehend and seize them, together with their papers, and bring them in safe custody before him. No one having been charged or even suspected, no evidence of crime having been offered, -no one was named in this dread instrument. The offence only was pointed at, not the offender. The magistrate who should have sought proofs of crime deputed this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders; and, unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days they arrested no less than forty-nine persons on suspicion, - many as innocent as Lord. Halifax himself. Among the number was Dryden Leach, a printer, whom they took from his bed at night. They seized his papers, and even apprehended his journeymen and servants. He had printed one number of the North Briton,' and was then reprinting some other numbers; but as he happened not to have printed No. 45, he was released without being brought before Lord Halifax. They succeeded, however, in arresting Kearsley the publisher, and Balfe the printer, of the obnoxious number, with all their workmen. From them it was discovered that Wilkes was the culprit of whom they were in search; but the evidence was not on oath; and the messengers received verbal directions to apprehend Wilkes under the

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*The history of this controversy should be read in connection with that in America immediately previous to

general warrant.

Wilkes, far keener than the crown lawyers, not seeing his own name there, declared it a ridiculous warrant against the whole English nation,' and refused to obey it. But after being in custody of the messengers for some hours, in his own house, he was taken away in a chair, to appear before the sec retaries of state. No sooner had he been removed than the messengers, returning to his house, proceeded to ransack his drawers; and carried off all his private papers, including even his will and his pocket-book. When brought into the presence of Lord Halifax and Lord Egremont, questions were put to Wilkes which he refused to answer; whereupon he was committed close prisoner to the Tower, denied the use of pen and paper, and interdicted from receiving the visits of his friends or even of his professional advisers. From this imprisonment, however, he was shortly released on a writ of habeas corpus, by reason of his privilege as a member of the House of Commons.

"Wilkes and the printers, supported by Lord Temple's liberality, soon questioned the legality of the general warrant. First, several journeymen printers brought action against the messengers. On the first trial, Lord Chief Justice Pratt not allowing bad precedents to set aside the sound principles of English law - held that the general warrant was illegal; that it was illegally executed; and that the messengers were not indemnified by statute. The journeymen recovered three hundred pounds damages; and the other plaintiffs also obtained verdicts. In all these cases however, bills of exceptions were tendered and allowed. Mr. Wilkes himself brought an action against Mr. Wood, under-secretary of state, who had personally superintended the execution of the warrant. At this trial it was proved that Mr. Wood and the messengers, after Wilkes's removal in custody, had taken entire possession of his house, refusing admission to his friends; had sent for a blacksmith, who opened the drawers of his bureau; and having taken out the papers, had carried them away in a sack, without taking any list or inventory. All his private manuscripts were seized, and his pocketbook filled up the mouth of the sack. Lord Halifax was examined, and admitted that the warrant had been made out three days before he had received evidence that Wilkes was the author of the North Briton.' Lord Chief Justice Pratt thus spoke of the warrant: The defendant claimed a right, under precedents, to force persons' houses, break open escritoires, and seize their papers upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.' The jury found a verdict for the plaintiff with one thousand pounds damages.

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Four days after Wilkes had obtained his verdict against Mr. Wood, Dryden Leach, the printer, gained another verdict, with four hundred pounds damages, against the messengers. A bill of exceptions, however, was tendered and re

the American Revolution, in regard to writs of assistance [* 302] issued by the courts to the revenue officers, empowering

ceived in this as in other cases, and came on for hearing before the Court of King's Bench in 1765. After much argument, and the citing of precedents showing the practice of the secretary of state's office ever since the Revolution, Lord Mansfield pronounced the warrant illegal, saying: It is not fit that the judging of the information should be left to the discretion of the officer. The magistrate should judge, and give certain directions to the officer.' The other three judges agreed that the warrant was illegal and bad, believing that no degree of antiquity can give sanction to an usage bad in itself.' The judgment was therefore affirmed.

"Wilkes had also brought actions for false imprisonment against both the secretaries of state. Lord Egremont's death put an end to the action against him; and Lord Halifax, by pleading privilege, and interposing other delays unworthy of his position and character, contrived to put off his appearance until after Wilkes had been outlawed, when he appeared and pleaded the outlawry. But at length, in 1769, no further postponement could be contrived; the action was tried, and Wilkes obtained no less than four thousand pounds damages. Not only in this action, but throughout the proceedings, in which persons aggrieved by the general warrant had sought redress, the government offered an ob tinate and vexatious resistance. The defendants were harrassed by every obstacle which the law permitted, and subjected to ruinous costs. The expenses which government itself incurred in these various actions were said to have amounted to one hundred thousand pounds.

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The liberty of the subject was further assured at this period by another remarkable judgment of Lord Camden. In November, 1762, the Earl of Halifax, as secretary of state, had issued a warrant directing certain messengers, taking a constable to their assistance, to search for John Entinck, clerk, the author or one concerned in the writing of several numbers of the Monitor, or British Freeholder,' and to seize him, together with his books and papers, and bring him in safe custody before the secretary of state. In execution of this warrant, the messengers apprehended Mr. Entinck in his house, and seized the books and papers in his bureau, writing-desk, and drawers. This case differed from that of Wilkes, as the warrant specified the name of the person against whom it was directed. In respect of the person, it was not a general warrant ; but as regards the papers, it was a general search-warrant, - not specifying any particular papers to be seized, but giving authority to the messengers to take all his books and papers according to their discretion.

"Mr. Entinck brought an action of trespass against the messengers for the seizure of his papers, upon which a jury found a special verdict, with three hundred pounds damages. This special verdict was twice learnedly argued before the Court of Common Pleas, where, at length, in 1765, Lord Camden pronounced an elaborate judgment. He even doubted the right of the secretary of state to commit persons at all, except for high treason; but in deference to prior decisions, the court felt bound to acknowledge the right. The main question, however, was the legality of a search-warrant for papers. If this point should be

[* 303] them, in their discretion, to search *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." 1 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 Constitution of the United States," the principles already settled in the common law upon this vital point in civil liberty.

determined in favor of the jurisdiction,' said Lord Camden, '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 see fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' 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 papers 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.' 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, c. 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; Note to same case in Broom, Const. Law, 613; 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. XV. p. 1393 to 1418, Vol. XVI. pp. 6 and 209. In further illustration of the same subject, see De Lolme on the English Constitution, c. 18; Story on Const. §§ 1901, 1902; Bell v. Clapp, 10 Johns. 263; Sailly v. Smith, 11 Johns. 500.

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

2 U. S. Const. 4th Amendment. The scope of this work does not call for any discussion of the searches of private premises, and seizures of books and papers, which are made under the authority, or claim of authority, of the revenue laws of the United States. Perhaps, under no other laws are such liberties taken by ministerial officers; and it would be surprising to find oppressive action on their part so

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