Special thanks to Randy Barnett, Morgan Cloud, Julie Cohen, William Cuddihy, Jennifer Daskal, Thomas Davies, Daniel Ernst, Erin Kidwell, Martin Lederman, John Mikhail, Paul Ohm, James Oldham, Julie O’Sullivan, Michel Paradis, Brad Snyder, Geoff Stone, William Treanor, and Peter Winn, who provided thoughtful comments on earlier versions of the Article. Ladislas Orsy kindly helped to verify the meaning of the original Latin texts. My appreciation extends to participants at the Georgetown Law faculty workshop, Georgetown Law’s Constitutional Law Seminar, the 2015 Berkeley-GW 8th Annual Privacy Law Scholars Conference, the Washington, DC National Security Law Roundtable, and the Retired Partners Group at Arnold & Porter LLP for their critiques. Jeremy McCabe, Thanh Nguyen, Ellen Noble, and Morgan Stoddard kindly assisted in helping to obtain many materials. Betsy Kuhn copyedited the penultimate text, which is reflected in part in chapters four and five of my recently published book, The Future of Foreign Intelligence: Security and Privacy in a Digital Age (Oxford 2016). The editors at The University of Chicago Law Review dedicated time and effort to ensuring the quality of the final Article. It is much appreciated.
The meaning of the rights enshrined in the Constitution provides a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time it was adopted, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business against the owner’s wishes to search for or to seize persons, papers, or effects, absent a specific warrant. Consistent with English common law, the notable exception was when law enforcement or citizens were pursuing a known felon. Outside of such circumstances, search and seizure required government officials to approach a magistrate and, under oath, to provide evidence of the suspected offense and to particularly describe the place to be searched and persons or things to be seized. Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home without a warrant does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met before the government may intrude. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment and for ensuring a doctrine that reflects fidelity to the founding principles.
TABLE OF CONTENTS TABLE OF CONTENTSSeventeenth- and eighteenth-century legal treatises embraced the position that, outside of certain circumstances, the Crown could not intrude on the sanctity of the home without a warrant.56 Efforts to get around the rule by drafting warrants broadly to allow for indiscriminate search and seizure were met with objection. It was not that the Crown never tried to evade the warrant requirement—it was that common-law principles did not allow it.57
Three influential cases laid the groundwork for the Founders’ rejection of general warrants: Entick v Carrington58 in 1765, Wilkes v Wood59 in 1763, and Leach v Money60 in 1765. The stories behind the cases illustrate why English jurists and scholars rejected such instruments.
In 1755, the seeds of the first controversy were sown. John Entick, self-styled reverend and sometime English schoolmaster, met political satirist John Shebbeare and publisher Jonathan Scott in The Horn Tavern at the junction of Little Knightrider and Sermon Lane, London.61 In the presence of their solicitor, Arthur Beardmore, the men launched a weekly essay paper, The Monitor, “to commend good men and good measures, and to censure bad ones.”62 The rebellious nature of the enterprise could hardly be ignored. The founders’ aim was nothing less than to arouse “that spirit of Liberty and Loyalty, for which the British nation was anciently distinguished, but which was in a manner lulled asleep by that golden opiate, which weak and wicked Ministers for many years, had too successfully tendered to persons of all ranks, as a necessary engine of government.”63
Five days later, the King’s chief messenger, Nathan Carrington, and three “messengers in ordinary” executed the warrant.66 At eleven o’clock in the morning, the King’s messengers opened Entick’s front door and entered his home.67 For the next four hours they used “force and arms” to accomplish their purpose.68 Outraged at the intrusion, Entick brought a trespass suit on grounds of the most ancient of English rights: that of an Englishman to be secure in his own home against unreasonable government intrusion.69
Charles Pratt, chief justice of the Common Pleas, presided over the trial.70 In ruling against Halifax and for Entick, Pratt observed that “[t]he great end, for which men entered into society, was to secure their property.”71 The common law rejected the proposition that the Crown could enter its subjects’ domiciles at will: “[E]very invasion of private property, be it ever so minute, is a trespass.”72 The protection of private property extended to letters, papers, and documents. “Papers are the owner’s goods and chattels,” Pratt explained, “they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection.”73
For Pratt, it was not the physical break-in or the rummaging in drawers that constituted the essence of the Crown’s misconduct, but rather the invasion of the indefeasible rights of personal security, liberty, and private property.74 Every man in his home was entitled to live free from the gaze of the Crown. The right to privacy ought not to be infringed. The wrong occurred not just when property was confiscated or incriminating evidence obtained, but at the moment the King’s messengers entered.75
Pratt took pains to distinguish what had happened in the case of the general warrant for seditious libel from the standards adopted for a specific warrant in criminal law. In the latter instance, “[t]here must be a full charge upon oath of a theft committed.”76 A warrant must be executed in the presence of an officer of the law. When a private person suspected criminal activity, evidence had to be provided under oath to a constable, who then determined the reasonableness of the grounds for the suspicion.
In this case, nothing had been described, nor the target of the search distinguished. Pratt explained, “no charge is requisite to prove, that the party has any criminal papers in his custody[;] no person present to separate or select[;] no person to prove in the owner’s behalf the officer’s misbehaviour.”77 General searches, such as that to which Entick had been subject, raised the specter of the Star Chamber.78 They had been rejected in its aftermath. Even to prevent the most serious crimes, such searches were not allowed. Pratt suggested that “such a power would be more pernicious to the innocent than useful to the public.”79
Entick was not the first time that Pratt had confronted—and condemned—a general warrant. Two years earlier, he had found himself embroiled in a case involving John Wilkes (one of Entick’s close associates and a darling of the American Revolution), as well as a parallel case involving efforts to fine the printer of Wilkes’s writing. Together with a prominent case from the American colonies, these judicial challenges—and the legal treatises on which they were based—were to profoundly shape the Founding Fathers’ introduction and understanding of the Fourth Amendment.
Wilkes, an English politician raised by commoners, found expression in his pen.80 In 1762, after placing a handful of essays in The Monitor, Wilkes helped to start a political weekly to counter The Briton, a progovernment publication, naming its counterpoise the North Briton.81 The paper dedicated much of its space to lampooning George III’s Scottish favorite, John Stuart, third Earl of Bute.82 As Bute was the beloved tutor to the Prince of Wales, George III’s accession to the throne in 1760 immediately improved Bute’s circumstances.83 In May 1762, Bute became first lord of the treasury and leader of the House of Lords.84 He entered into complex negotiations with the French, bringing the Seven Years’ War to conclusion.85 November of that year saw the preliminaries signed in Fontainebleau, France.86
The North Briton and others vehemently attacked the terms of peace. Upon first hearing of the agreement, the journal inveighed:
Formal publication of the terms of agreement between England and France fared little better. “It is with the deepest concern, astonishment, and indignation,” Wilkes wrote, “that the Preliminary articles of Peace have been received by the public.”88 He decried their substance: “They are of such a nature, that they more resemble the ancient treaties of friendship and alliance between France and her old firm, ally Scotland, than any which have ever subsisted between that power, and her natural enemy, England.”89 Wilkes continued, “Almost all the glorious advantages we had gained over our most restless and perfidious foe, our ministers have given away.”90 Wilkes worried that French commerce would benefit to the detriment of England.91 More lamentably,
[t]he French king, by a stroke of his pen, has regained what all the power of that nation, and her allies, could never have recovered; and England, once more the dupe of a subtle negociation [sic], has consented to give up very nearly all her conquests, the purchase of such immense public treasure, and the blood of so many noble and brave families.92
Despite political opposition, the Treaty of Paris passed the House of Lords and the House of Commons by decisive majorities.93 But hostility against Bute continued, forcing his resignation as prime minister in April 1763.94
George Grenville took Bute’s place—both in government and as an object of Wilkes’s derision. “The North Briton,” Wilkes wrote, “has been steady in his opposition to a single, insolent, incapable, despotic minister; and is equally ready, in the service of his country, to combat the triple-headed, Cerberean administration, if the Scot is to assume that motley form.”95 Wilkes pilloried Grenville for sanctioning the treaty, which had “saved England from the certain ruin of success.”96 According to Wilkes, the agreement had sacrificed any immediate advantages of trade or territory to England’s “inveterate enemies.”97 He lamented seeing the Crown “sunk even to prostitution.”98
With the warrant in hand, on the morning of April 30, 1762, the four messengers and Constable Robert Chisholm arrived at Wilkes’s home.100 It took more than two hours for Wilkes to agree to leave the premises.101 He insisted that his status as a member of Parliament protected him.102 Eventually, he agreed to go to Halifax’s home—just a few doors down Great George Street.103 Thereafter, Robert Wood, secretary to Lord Egremont, secretary of state for the Southern Department, oversaw the search and seizure of Wilkes’s possessions.104
Wilkes’s butler, present at the time, recounted the events that transpired:
[T]hey rummaged all the papers together they could find, in and about the room; [ ] they (the messengers) fetched a sack, and filled it with papers. [ ] Blackmore then went down stairs, and fetched a smith to open the locks. . . . [A] messenger, then came, and would whisper Mr. Wood, who bade him speak out; he then said he brought orders from lord Halifax to seize all manuscripts.105
When the locksmith arrived, the men took all of the papers out of Wilkes’s drawers and put them, along with his pocketbook, into the sack.106 Wilkes challenged his imprisonment and the legality of the warrant, bringing a claim of trespass and false imprisonment against Wood.107
Wilkes’s status in the minds of many parliamentarians was that of a boil on the backside of a pig. As William Barrington, second Viscount Barrington, wrote to the British envoy in Berlin in May 1763, “Nothing is at present talk’d of here but the Affair of a very impudent worthless man named Wilks, a Member of Parliament, who was lately taken up by the Secretaries of State for writing a most seditious Libel personally attacking the King.”108 But the “mob,” as Barrington despaired, and not a few others—who sought no favor from the monarch—supported Wilkes, if not for the substance of what he had written, then for the reason that the Crown had gone too far.109
Pratt ruled that Wilkes’s arrest and detention infringed parliamentary privilege.110 Libel being no breach of the peace, the Crown must release Wilkes.111 The decision floored the ministry. Wilkes spun the verdict as a defense of liberty, giving a rousing speech to a crowd of thousands, which accompanied him from Westminster Hall back to his home on Great George Street.112 Forced to release Wilkes from prison on Friday, May 6, 1763, by Monday, May 9, Halifax had ordered Attorney General Charles Yorke to prosecute Wilkes for seditious libel. That same day Yorke filed charges in the Court of King’s Bench. Wilkes brought suit.113
The trial began at nine o’clock in the morning on December 6, 1763, at the Court of Common Pleas at Westminster.114 Wilkes’s lawyer, John Glynn, argued that more was at stake than the simple execution of a warrant against one man. The case “touched the liberty of every subject of this country, and, if found to be legal, would shake that most precious inheritance of Englishmen.”115 Glynn explained, “In vain has our house been declared, by the law, our asylum and defence, if it is capable of being entered, upon any frivolous or no pretence at all, by a secretary of state.”116
The seizing of Wilkes’s papers stood as the most serious of the charges at hand: “for other offences, an acknowledgement might make amends; but [ ] for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made.”117 English law, counsel argued, “never admits of a general search-warrant.”118 Beyond the privacy invasion, significant risk accompanied the proposition “[t]hat some papers, quite innocent in themselves, might, by the slightest alteration, be converted to criminal action.”119 The warrant, signed three days before Halifax actually received information supporting its execution, failed to name Wilkes.120 It did not include specific items to be seized, nor particular places to be searched.121 For Glynn, it was “an outrage to the constitution.”122
After more than twelve hours of witnesses and argument, Pratt summarized the evidence that had been presented, noting that the action in question was one of trespass, to which Wood had initially pleaded not guilty but later shifted to defend based on a special justification.123 Pratt inveighed the jury to consider extraordinary damages to make the point that such behavior would not be tolerated in the future.124 After a mere half hour of deliberation, the jury returned a verdict for Wilkes, awarding a stunning £1,000 in damages.125 Two days later, The London Chronicle reflected, “By this important decision, every Englishman has the satisfaction of seeing, that his house is his castle.”126
Pratt’s view of general warrants was hardly unique. His chief constitutional rival was William Murray, first Earl of Mansfield. Lord chief justice of the Court of King’s Bench, Mansfield was Pratt’s senior in age (and according to Jeremy Bentham, dignity), and his equal in argument.127 He was also a Tory, which meant that his political perspective differed from that of his junior, Whig colleague.128 Despite their political differences, the men agreed on the illegality of indiscriminate search and seizure.
In 1765, Mansfield, like Pratt, found himself confronted with the execution of a general warrant in response to the publication of North Briton No 45—in this case, as it was served on the alleged printer of the publication, Dryden Leach.129 And Mansfield, like Pratt, found the execution of the general warrant to be a violation of the common law.130
The facts mirrored those of Wilkes. On April 29, 1763, a constable and four King’s messengers entered Leach’s open front door and found both him and freshly printed copies of the first two issues of the North Briton.131 They arrested Leach.132 For the next six hours, the same Carrington that executed the general warrants against Entick and Wilkes, in this instance assisted by John Money, James Watson, and Robert Blackmore, searched Leach’s home.133 Halifax, being “employed in other business belonging to his said office of secretary of state,” was unable to meet with the prisoner for four days, during which time Leach was detained.134 When he finally met with Leach, Halifax concluded that Leach had not printed the pamphlet and ordered his release.135 Leach brought suit against the King’s messengers for breaking and entering into his home, for seizing his person and papers, and for imprisoning him for four days.136
Leach first came before Pratt at the Court of Common Pleas on December 10, 1763.137 The defendants argued that they should be exempt from the suit, as they were protected by a statute introduced under George II entitled, “An act for the rendering justices of the peace more safe in the execution of their office; and for indemnifying constables and others acting in obedience to their warrants.”138 Leach argued in response that they were covered neither by that statute nor by the statute of James I, “An Act for ease in pleading against troublesome and contencious Suites, psecuted against Justices of the Peace Maiors Constables and ctaine other his Majesties Officers, for the lawfull execucion of their Office,”139 nor the subsequent act to enlarge and make perpetual the same.140 The jury found for the plaintiff and awarded him £400.141 The defendants filed a bill of exceptions in the Court of King’s Bench, seeking relief.142
Mansfield presided over the case. The solicitor general began by attempting to establish the status of the King’s messengers as emissaries—the long arm—of the justices of the peace.143 Seditious libel represented “an offence against government and the public peace; [ ] effectually undermin[ing] government.”144 The secretary of state “is a centinel for the public peace: it is his duty to prevent the violation of it, and to bring the offenders to justice; and it is necessary that he should be invested with this power, in order to enable him to execute this his duty.”145 As for the vagueness of the warrant, such power, he argued, “is not illegal: and the abuse of it is no objection to the warrant itself. Such warrants are agreeable to long practise and usage.”146
Leach’s counsel, John Dunning—an effective barrister in his own right—responded that the secretary of state was not a justice, conservator, or constable—nor were the King’s messengers in ordinary immune by nature of their office.147 The generality of the warrant made it invalid.148 The document described the offense but not the individual responsible:
Here is no probable cause, nor any reason for justifying the officer under a probable cause. It is not like the cases of apprehending traitors or felons. Here is only information from one of their own body, “that the author of the paper had been seen going into Leach’s house; and that Leach was the printer of the composition in general;” not of this particular paper.149
Hearsay, even if true, was insufficient evidence of the crime alleged.150 Yet, on the basis of the same, they had imprisoned Leach for four days and thoroughly searched his home. The warrant itself was thus illegal.
If a warrant could be issued, counsel argued, directing those executing it to find the person responsible for a particular murder, without naming the target of the warrant, “[s]uch a power would be extremely mischievous, and might be productive of great oppression.”151 He continued, “To ransack private studies in order to search for evidence, and even without a previous charge on oath, is contrary to natural justice, as well as to the liberty of the subject.”152 Dunning concluded, “To search a man’s private papers ad libitum, and even without accusation, is an infringement of the natural rights of mankind.”153
The law lords’ rejection of general warrants in Entick, Wilkes, and Leach traced its origin, at least as argued in the seventeenth century, to the 1215 Magna Carta.159 General warrants lacked specificity: the person to be arrested, the place to be searched, or evidence of the crime for which the individual or information was being sought. General warrants for arrest, as well as for search and seizure, implicated liberty and property rights and earned the enmity of those subject to their execution. It made little sense to talk about liberty rights if the King’s subjects could be imprisoned without cause; nor could the right to property be secure if the King could subject property to search on any occasion, and subsequently construct charges against the owner.
To protect these rights, the line was drawn at the walls of the home. The most famous articulation of this principle came in 1604 in Semayne’s Case,160 when Sir Edward Coke wrote, “[T]he house of every one is to him as his [ ] castle and fortress.”161 Coke returned to the principle in his Institutes: “[F]or a mans house is his castle, & domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge].”162 The Crown might well overcome certain restrictions as applied to ordinary subjects, but the principle—the right of a man to be secure in his own home—spanned the centuries.
Although Coke articulated a strong right against Crown interference in the domestic affairs of the King’s subjects, the monarchy did not always toe the line. While entry without a warrant was generally prohibited, with a warrant the walls could be breached. And so pressure was placed on general warrants, which gave the Crown’s officers the greatest latitude.
The Tudors and the Stuarts relied on the general warrant to head off political opposition.163 Henry VIII’s daughter, Mary I, made broad use of search powers to try to reestablish the Catholic Church.164 In 1559, Mary I’s successor, Elizabeth I, formed a High Commission to counter “seditious and slanderous persons” setting “forth false rumours, tales, and seditious slanders” against the Queen “and the said good laws and statutes.”165 Citing the laws reestablishing the Church of England,166 Elizabeth I directed the Commission to prosecute “all and singular heretical opinions, seditious books, contempts, conspiracies, false rumours, tales, seditions, misbehaviours, slanderous words or shewings, published, invented or set forth.”167 She gave the Commission “full power and authority” to address “all such errors, heresies, crimes, abuses, offences, contempts and enormities spiritual and ecclesiastical wheresoever, which by any spiritual or ecclesiastical power, authority or jurisdiction can or may lawfully be reformed, ordered, redressed, corrected, restrained or amended, to the pleasure of Almighty God.”168 To root out all “fornications and ecclesiastical crimes,” the Commission was empowered “to use and devise all such politic ways and means for the trial and searching out of all the premises, as . . . shall be thought most expedient and necessary.”169
Instead of eliminating the High Commission, James I expanded its reach, collapsing the distinction between religious matters and those overseen by the Privy Council. He gave the Commission the authority to find heretical materials, as well as documents “offensive to the state,” and to go after not just the authors of such works but also the publishers and printers and those involved in their dissemination.170 To carry out general searches, both the Commission and the Privy Council relied on the associated writs.171
As successive monarchs expanded the use of general warrants, Englishmen increasingly found themselves at the receiving end of their execution.172 General warrants became seen as the epitome of unreasonableness and foremost among the egregious powers exercised by the Crown.173 Coke took the lead in attacking their legitimacy—a move not without irony, as he had previously, as attorney general, exercised them.174
The context was one of heightened religious tension. Elizabeth I had followed the acts of 1559 with further steps “[t]o accelerate acceptance and flush out dissenters.”175 A series of statutes expanded her power.176 James I held the course as opposition mounted. In November 1605, the Crown discovered a scheme to blow up the Houses of Parliament—and, with them, the King—on the first day of the new session.177 The ultimate purpose of the so-called Gunpowder Plot was to trigger a series of events that would lead to the installation of the King’s nine-year-old daughter as a Catholic monarch.178 James I signed two general warrants to find those responsible.179 Coke helped to execute the writs, breaking into a Catholic residence in the Inner Temple and confiscating books.180
Coke, however, was not solely to be an instrument of state power. In 1621, the same king that had instructed him to search for those responsible for the Gunpowder Plot issued a general warrant to detain Coke while his home was searched “for all such papers and writeings as doe anie way concerne his Majestie’s service.”181 The warrant directed the King’s officers “to open all such studies, clossetts, chests, trunkes, deskes or boxes, where you shall understaund or probably conceave anie such papers.”182
The incident proved formative for Coke’s understanding of the legality of general warrants. He later hearkened back to the position in which he had been placed during the search to argue in Westminster that the 1628 Petition of Right include a clause prohibiting imprisonment without cause: “But for that that no cause should be shown upon the commitment, the honest man and the honest judge shall be most miserable,” he stated.183 “I was committed to the Tower and all my books and study searched, and 37 manuscripts were taken away. . . . I was inquired after what I had done all my life before. So then there may be cause found out after the commitment.”184
It was not the first occasion on which Coke had objected in Parliament to general warrants. In March 1628, he protested, “No free man ought to be committed but the cause must be showed in particular. If it be for treason or murder the particular must not be showed, but the general must. . . . It is against reason to send a man to prison and not to show the cause.”185 Royal prerogative, or reason of state, would not suffice to exempt the Crown:
[I]f [imprisonment] be per mandatum domini regis, or “for matter of state”; and then we are gone, and we are in a worse case than ever. If we agree to this imprisonment “for matters of state” and “a convenient time,” we shall leave Magna Carta and the other statutes and make them fruitless, and do what our ancestors would never do.186
Coke more fully articulated his understanding of the illegality of general warrants in his Institutes.187 “One or more Justice or Justices of Peace cannot make a warrant upon a bare surmise to break any mans house to search for a Felon, or for stoln goods, for they being created by Act of Parliament have no such authority granted unto them by any Act of Parliament.”188 Common law demanded that the Crown first produce evidence that the individual had committed a crime:
[I]t should be full of inconvenience, that it should be in the power of any Justice of Peace being a Judge of Record upon a bare suggestion to break the house of any person of what state, quality, or degree soever, and at what time soever, either in the day or night upon such surmises.189
Coke reiterated the origins of the prohibition of general warrants, citing the Great Charter, stating that to issue such writs “is against Magna Carta, [Neither will we pass upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land]: and against the statute of 42 E. 3. cap. 3. &c.”190
What made the use of general warrants particularly odious was that they retained for the Crown the particulars of suspicion, making them vulnerable to abuse. In contrast, by requiring a specific warrant, the Crown would be forced to produce evidence in open court. Requiring this went to the heart of the rule of law, “because Justices of Peace are Judges of Record, and ought to proceed upon Record, and not upon surmises.”191 General warrants thus violated not just a statute dating back to 1368, but Magna Carta itself: “[E]rrores ad sua principia referre, est refellere, To bring errors to their first, is to see their last.”192
Coke persuaded Parliament to include a prohibition on the use of general warrants in the Petition of Right.197 The document was ratified by the House of Commons and the House of Lords on May 26 and 27, 1628, and accepted by King Charles I on June 2. Parliament objected that merely receiving the petition was insufficient, demanding that the King give royal assent. This he did on June 7, 1628, admitting “the illegality of warrants by the king’s special command, not assigning grounds of arrest or detainer” and making effectual the remedy by habeas corpus.198
Coke’s work reflected a growing concern about the Crown’s use of general warrants. His writing clarified why such power sat uneasily in the English constitutional tradition.199 By rooting his objection in Magna Carta, he recalled ancient rights. Coke did not claim that the Crown never made use of the instruments—this plainly was not accurate.200 Rather, he objected that they had become routine instruments of political power. The impact could be felt throughout society, “[f]or though commonly the Houses or Cottages of poore and base people be by such Warrants searched &c. yet if it be lawfull, the houses of any subject, be he never so great, may be searched, &c. by such Warrant upon bare surmises.”201
With his opposition to those in power increasingly clear, Coke earned the enmity of the Crown. As Coke lay on his deathbed, Charles I issued a general warrant to search his home and to seize “all such papers and manuscripts” considered appropriate for confiscation.202 Similar orders accompanied a search of Coke’s papers at the Inner Temple, as they were considered “disadvantageous” to the Crown.203 The action was intensely personal: Charles I himself opened the trunks and made note of what they contained.204
While the manuscripts of the Institutes were among those items confiscated, the Crown’s effort to silence Coke came too late. Legal scholars went on to take Coke at face value, cementing his critique into English thought.205 In 1678, Sir Matthew Hale, an intellectual giant most famous for his 1739 History of the Common Law of England, wrote in the first volume of his Pleas of the Crown: Or, a Methodical Summary, “A general Warrant to search for Felons or stoln Goods, not good.”206 Two years later, Parliament directed publication of Hale’s manuscript.
When Historia Placitorum Coronae (“History of the Pleas of the Crown”) finally appeared in 1736, it became enormously influential.207 In it, Hale stated, “[A] general warrant to search in all suspected places is not good, but only to search in such particular places, where the party assigns before the justice his suspicion and the probable cause thereof, for these warrants are judicial acts, and must be granted upon examination of the fact.”208 He continued:
[T]herefore I take those general warrants dormant, which are made many times before any felony committed, are not justifiable, for it makes the party to be in effect the judge; and therefore searches made by pretense of such general warrants give no more power to the officer or party, than what they may do by law without them.209
As with search provisions, a general warrant for arrest was equally void. “[A] general warrant upon a complaint of a robbery to apprehend all persons suspected, and to bring them before” the law, Hale wrote, “was ruled void, and false imprisonment lies against him that takes a man upon such a warrant.”210
It was to this publication that Mansfield appealed in Leach,211 even as Sergeant William Hawkins cited Coke and Hale in his Pleas of the Crown: “I do not find any good Authority, That a Justice can justify sending a general Warrant to search all suspected Houses in general for stolen Goods.”212 Hawkins added, “inasmuch as Justices of Peace claim this Power rather by Connivance, than any express Warrant of Law, and since the undue Execution of it may prove so highly prejudicial to the Reputation as well as the Liberty of the Party,” general writs—particularly for arrest—were void.213 Hawkins looked to Coke and Hale’s disapproval, stating that first probable cause must be demonstrated, particularity attached, and a warrant issued prior to arrest.214 A number of influential English legal treatises and abridgements followed Hawkins’s Pleas, condemning general warrants.215
Parliament built upon the foundation constructed by English legal scholars. Initially, concern stemmed from parliamentarians’ objection to the exercise of powers that they had not created, and the use of general warrants against members, making legislative privilege and self-interest—and not individual rights—central to their concerns.216 Parliament sent agents of the Crown to the Tower of London for conducting searches against its members and considered certain “general warrant[s] dormant,” as they acted “against law and the liberties of the subject.”217 In 1681, nearly four decades after Coke’s Institutes, the House of Commons listed as a reason for the impeachment of Chief Justice Sir William Scroggs that he had “granted divers general warrants for attaching the persons and seizing the goods of his majesty’s subjects, not named or described particularly in the said warrants, by means whereof many have been vexed, their houses entered into, and they themselves generally oppressed contrary to law.”218 By “contrary to law,” what Parliament meant was that it had not passed any statute laying out an exception to the general rule—not, as Coke had stated, that the instruments themselves were contrary to law.219
Like Coke’s treatise, Parliament’s actions reflected growing public resistance—and opposition—to the use of general warrants. Soon after Pratt’s judgment in Entick, the House of Commons passed a resolution condemning the use of general warrants for libels.220 During debate, Parliament underscored its rather personal concern at the exercise of such warrants, altering “not warranted by law” to “illegal” and adding, “and, if executed on the person of a member of this House, is also a breach of the privilege of this House.”221 Three days later, Parliament amended the resolution to make general warrants universally illegal, outside of specific cases provided via statute.222
Government supporters countered that to question the legality of general warrants, would be impeaching the character of the highest and most respectable tribunal, next to the House of Lords, in the whole realm; a tribunal, whose judges for many years past, that general warrants have been in use, have been allowed to be men of the soundest capacity and most unbiassed integrity.227
They argued that since the men exercising the warrants were lawyers, and therefore respectful of liberty, their integrity should not be impugned.228 But reliance on the respect owed to those exercising the powers did not win the day.
As the Crown’s use of executive writs continued, Parliament became increasingly concerned, leading one member, in 1766, to declare that “a general warrant is such a piece of nonsense as deserves not to be spoken of, being no warrant at all, and incapable of answering any one purpose, in any case whatever, that a legal warrant would not better attain.”229
In 1768, William Blackstone announced in his Commentaries on the Laws of England that the question of the legality of general warrants under the common law, had it ever existed, had since been well settled:
Sir Edward Coke indeed hath laid it down, that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion; no, not even till an indictment be actually found: and the contrary practice is by others held to be grounded rather upon connivance, than the express rule of law; though now by long custom established.230
There was a distinction to be drawn between specific warrants for arrest and those that lacked the necessary particularization.231 The former, discussed at length by Hale, required that evidence be submitted, under oath, to a competent judge, who would then issue a warrant for arrest. Such warrants, issued in open court, bore the seal of a justice of the peace.232
However, “[a] general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for [its] uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion.”233 Blackstone continued:
[A] warrant to apprehend all persons guilty of a crime therein specified, is no legal warrant: for the point, upon which [its] authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon be really guilty or not. It is therefore in fact no warrant at all: for it will not justify the officer who acts under it.234
Even as they rejected general warrants, English legal treatises acknowledged an exception wherein entry to the home, absent a warrant, satisfied common-law principles. In order to ensure the King’s peace, special rules accompanied the capture and search of felons.
For eighteenth-century English subjects, the walls of the home served as a barrier to government intrusion. An ancient exception to this rule stemmed from the importance of maintaining the King’s peace. Following the Norman invasions, the concept had evolved into a general safeguard of public order.235 Anyone committing a criminal offense could be sued by the King “as for a Thing committed against his Commandment, and against his Peace.”236 The notion stemmed, in part, from the sanctity of the King’s home, as extended to the land he controlled.237 Violating the King’s peace was an act of personal disobedience, making the wrongdoer the King’s enemy.238 With the matter so close to the monarch’s interests, it was his justices who tried breaches of the peace, even as the King formally was entered as a party to the plea.239
Initially, only felonies counted as contra pacem domini regis (“against the King’s peace”).240 They included the most serious offenses, not least because, when coupled with the actual murder of another individual, neither the breach of the peace nor the commission of the crime could be amended.241 As a result, severe penalties followed: execution, forfeiture of land or goods, or both.242 Over time, breaches of the King’s peace broadened to include lesser offenses—a phenomenon that nineteenth-century English legal scholars Sir Frederick Pollock and Frederick William Maitland attributed to the ease with which peace spread. But “[i]t was otherwise with felony.”243 That became, and remained, the name “for the worst, the bootless crimes.”244
Under English law, certain officers of the Crown served as conservators of the King’s peace.248 It fell to them to apprehend felons. There was no preliminary investigation before a magistrate. Instead, agents of the Crown had the authority to arrest individuals caught in the act.249 Certain conditions therefore had to be met for felony arrests to occur. The arrests had to be directed toward: (a) a specific individual, (b) for a particular crime, (c) that was serious in nature (that is, a felony); and (d) the agent needed a high level of confidence that the individual had actually engaged in the illegal activity—specifically, that the officer, or the person approaching the officer to demand the arrest, had witnessed the person commit the crime. In this way, individuality, particularity, severity, and certainty proved essential. When these requirements were met, the law allowed the officers, witnesses, or persons responding to the hue and cry to chase and apprehend the felon, to break down the doors of any homes in which the felon had sought refuge, and to seize any items found in the individual’s possession.250
Persons effecting arrest in this manner still risked legal penalties for trespass, assault, or murder, in the event that they were wrong in their knowledge that the target had committed the felony.251 For the hue and cry, though, only those who raised the alarm, and not those responding to it, were held responsible for the outcome. Thus, the legitimacy of the seizure of the person, or the search that accompanied the seizure, turned in some measure on the suspect’s actual guilt, as demonstrated ex post facto, in a court of law. A brief discussion of the public safety powers of arrest and search, and the hue and cry, helps to underscore the specificity of the known-felon exception.
Seventeenth- and eighteenth-century English legal scholars agreed that in the case of a felony, when an individual was known to have committed the crime, a warrant was not required for arrest. Nor was a warrant required for a search incident to the arrest, which sought to secure the safety of those effecting the arrest and to preserve evidence for trial. These were exceptions to the general rule that required officers of the Crown to first obtain a warrant before forcible entry into a dwelling.
Hale explained in 1736 in his History of the Pleas of the Crown that certain ministers—justices of the peace, sheriffs, coroners, constables, and watchmen—were empowered to “arrest felons, and those that are probably suspected of felony,” prior to indictment or conviction.253 The qualifications required for those in office, as well as the potential for officials to be held in violation of the law for abusing their authority, acted as restraints on the power.254 The officers had unique and carefully circumscribed authorities, underscoring the carefulness accorded to the exception.
Justices of the peace could arrest only individuals whom they actually witnessed commit a felony or breach of the peace, or whom others witnessed commit the same.255 They could not proceed against lesser offenses, nor could they proceed absent a high level of assuredness that a crime had been, or was being, committed.256 In the event that the arrest would be based on another person’s witnessing of the event, then the justice of the peace was required to issue a warrant in writing under his seal before the individual could be arrested.257 By statute, and consistent with the common law, sheriffs were similarly empowered to arrest felons.258
Coroners, finding that the body under their inspection had been murdered and the party responsible for the assault was clear, had the power to order the arrest of the party responsible for having committed the felony.259 Their power was strictly limited to ordering the arrest of individuals suspected of killing others; they had no further powers of questioning or arrest.260
Constables acted as conservators of the peace at common law.261 They therefore had the power “to quell all affrays, riots, routs, and actual assaults, by commanding the parties, in the king’s name to keep the peace . . . and to apprehend all persons who,” within their eyesight, broke the peace “by assaulting, striking, or by fighting.”262
Even here, Saunders Welch, an eighteenth-century justice of the peace, as well as a high constable, warned against intermeddling in the affray or assault.263 As a routine matter, the injured person “ought to apply to a magistrate for his warrant.”264 Welch advised that the only time a constable should intervene under his own authority was when any person appeared “to be dangerously wounded, and the party wounded” charged another person present.265 In such circumstances, constables were to detain the person accused, “as the delay of a warrant may be the escape of a murderer.”266
The law obliged constables to follow the directions of justices of the peace, sheriffs, and coroners to apprehend felons. They risked indictment and a fine for failing to do so.267 Once a constable apprehended a suspect, the law required the constable immediately to bring the prisoner before a justice of the peace.268 The rationale was that, as conservators of the peace, constables had the power to apprehend without legal process, but they could not discharge prisoners upon their own authority, “the intention of such arrest being the delivery of the Party to the magistrates, to be dealt with according to law.”269 Penalties applied for unlawful discharge.270
The emphasis was always on public safety.271 Thus, as Hale wrote, constables were empowered to arrest “suspicious night walkers . . . and men that ride armed in fair or markets or elsewhere.”272 They also could arrest individuals in the middle of a public fight, but, “if the affray be past, and no danger of death, the constable cannot arrest the parties without a warrant from a justice of the peace.”273
Hale was careful to distinguish between the powers of arrest (a) when a felony was “certainly committed,” (b) in cases of “suspicion of felony,” and (c) when there was a “danger of felony, tho none be committed, as in case of affrays or dangerous wounding.”274
In the first instance, “it is of all hands agreed,” Hale noted, that the constable could “arrest and imprison the felon,” including breaking “open doors to take the felon, if the felon be in the house, and his entry denied after demand and notice that he is constable.”275 Hale explained why such powers had been granted: because a constable is “a conservator of the peace, and is not only permitted but by law injoind to take a felon, and if he omits his duty herein, he is indictable and subject to a fine and imprisonment.”276
In the second case, when a felony has been committed and there is a suspect—such as a robbery upon person A, and “A. suspects B. upon probable grounds to be the felon, and acquaints the constable with it”—then the constable could apprehend B upon the suspicion.277 Under these circumstances, the constable had a responsibility first to “inquire and examine the circumstances and causes of the suspicion of A.”278 If satisfied, the constable and the accuser had to proceed together to effect the arrest.279 Thus, when an actual felony had been committed in fact and a constable established probable cause that a particular individual was responsible, then arrest powers, absent a warrant, followed.
Hale laid out the danger of not allowing such powers: “[I]f the constable should not be allowd this latitude in cases of this nature, many felons would escape.”280 There were, nevertheless, checks on the power. The innocence of the party arrested should still be assumed, before being brought before a justice of the peace, who then was required to “consider the circumstances, and possibly in some cases discharge or bail him, and upon his trial, if innocent, he will be discharged.”281 But the seriousness of the crime was of the utmost importance. At a minimum, Hale explained, “there must be a felony in fact done, and the constable must be ascertained of that, and aver it in his plea.”282
Regarding entry into homes, as in the first case, should “the supposed offender fly and take house, and the door will not be opened upon demand of the constable and notification of his business, the constable may break open the door, tho he have no warrant.”283 The norm, therefore, was clear: in order to enter into a home, the constable was required to first have a warrant—unless he was in pursuit of a felon. Under such circumstances, the warrant requirement could be waived.
There were other limits on the powers. Unlike the first instance (in which the constable knew to a certainty that the individual had engaged in a felony), it was much more questionable in the second instance (in which there was only a strong suspicion, based on a witness who had been examined by the constable) whether the constable could actually use lethal force against the suspected felon.284
As for the third case, Hale provided an example in which an individual had wounded, but not killed, another person:
If A. hath wounded B. so that he is in danger of death, and A. flies and takes his house, and shuts the doors, and will not open them, the constable of the vill where it is done, or upon hue and cry, may break the doors of the house to take him, if upon demand he will not yield himself to the constable.285
Should there be further disorder in the house, the constable was empowered to enter the home “to keep the peace and prevent the danger.”286
English law allowed for two kinds of search related to the arrest of a felon: first, of the person arrested, and second, of the area where the felon was located. The primary purposes of these searches were to ensure public safety at the time of the arrest and to seize evidence of the crime itself.
William Sheppard, writing in the seventeenth century, explained that after a felony occurred, constables were required to make diligent search for him that did it, in all such places within their Liberty as they shall understand to be likely to finde him in . . . and albeit it be a mans house he doth dwell in, which they doe suspect the Fellon to be in, yet they may enter in there to search; and if the owner of the house, upon request, will not open his dores, it seems the Officer may break open the dores upon him to come in to search.287
He added, “And so also it seems the Officer may search for goods stoln, as he may for the Fellon himself that doth steal them.”288
Seventy-five years later, Welch directed constables, “If the watch or yourself apprehend any suspicious persons, let them be carefully search’d.”289 He further advised: “[I]f any thing uncommon, as fire-arms, or other offensive weapons, be found upon them be sure to secure them, and take in writing with great exactness, the first account they give of themselves.”290
Jurists echoed Welch’s understanding. Even as late as 1887, in Dillon v O’Brien,291 the Court of the Exchequer noted that “in cases of treason and felony, constables (and probably also private persons) are entitled, upon a lawful arrest . . . to take and detain property found in his possession which will form material evidence in his prosecution for that crime.”292
The importance of protecting the public by keeping the King’s peace animated the known-felon exception.293 As such, the exception bore a close relationship to the hue and cry, which extended the authority to apprehend known felons beyond officers of the Crown.
The hue and cry was an ancient tradition reserved for the most serious of crimes. Alfred the Great’s institution of “hundreds,” a type of regional administrative division, during his ninth-century reign as King of the Anglo-Saxons appears to have originated the practice.294 In the thirteenth century, Henrici de Bracton wrote in De Legibus et Consuetudinibus Angliæ (“On the Laws and Customs of England”): “[I]f one has committed a felony and, after the hue has been raised, is arrested at once, pursuit shall end.”295 All persons between the ages of fifteen and sixty who heard the hue and cry were obliged to assist.296 Those who did so were protected from legal penalties—although the person who first raised the hue and cry, should it turn out to be false, was not. During the reign of Edward I, the hue and cry was incorporated into the Statute of Westminster.297 The Statute of Winchester also included it, requiring that people in neighboring towns and counties pursue the felon in response to the hue and cry.298 Later statutes expanded it to require pursuit by horse, as well as by foot.299
In the early seventeenth century, Coke noted that when a hue and cry had been raised against a felon, and the felon took refuge in a home “and defended with force,” Crown agents had the authority to “lawfully break the house” to effect arrest.300 Coke returned to the subject in the third part of his Institutes, in which he distinguished between two kinds of hue and cry: that derived from common law and that conducted consistent with statutory authority.301
“Hue and Cry by the Common law, or for the King,” Coke explained, “is, when any felony is committed, or any person grievously & dangerously wounded, or any person assaulted and offered to be robbed either in the day or night.”302 In such circumstances, the party aggrieved could approach a constable “and acquaint him with the causes, describing the party, and telling which way the offender is gone, and require him to raise Hue and Cry.”303 The idea behind the doctrine was that the felon be caught before he had a chance to escape. Accordingly, it was the constable’s duty to then “raise the power of the towne, as well in the night as in the day,” to find the offender.304 Public safety demanded it.305
Under statutory provisions, the situations in which the hue and cry could be raised were limited to five: (a) when a watchman attempted to detain a suspicious nightwalker and he attempted escape; (b) when outlaws trespassed in forests, chases, parks, or warrens, with the intent to rob or murder travelers; (c) when Welsh outlaws or men indicted for treason or felony attempted to escape into Herefordshire; (d) when individuals stole horses or carriages and attempted to escape; and (e) when a man, during the daytime, had been robbed and the perpetrator attempted to escape.306
A century later, Hale explained, “Hue and cry is the old common law process after felons and such as have dangerously wounded any person.”307 By then, several statutes recognized it.308
Constables had the authority to raise a hue and cry to apprehend a felon.309 Their decision to do so extended “only to two things, first that a felony has been really committed, and the second, that the person [arrested] is properly suspected.”310 The first was “absolutely necessary to justify an arrest; a mistake here [was] fatal.”311 A mistake in the second condition, however, could be excused if appropriate efforts had first been taken to ascertain that the individual being sought was the right person.
By the eighteenth century, Welch thus advised constables that when they did not themselves witness the felony, and, instead, the information had been brought to them of both the crime and the person responsible, they were to examine well if it be upon his own knowledge, or the report of another; if upon his own, charge him in the king’s name to aid and assist you; if upon the report of another, extend your enquiry to him, and act in the same manner: by this means you produce to the magistrate your prisoner and his accuser at the same time.312
When such conditions were not met, the constable was “to refer the parties to a justice of the peace, and act upon his warrant.”313 The hue and cry persisted until 1827.314
For centuries, English legal scholars read the common law as prohibiting the Crown from forcibly entering a domicile to conduct search and seizure, outside of narrow constraints. In the event of a public felony, officers could arrest the perpetrator and search him on the spot. Alternatively, should the felon flee, then officers, or individuals responding to the hue and cry, could breach the walls of a house where the felon was present and seize him. They could simultaneously search for and seize any instruments used in the commission of the crime. The items taken had to be material to the felony charged, such as poison, firearms, stolen goods, or treasonous materials,315 or they had to be weapons that could be used against those performing the arrest, making their confiscation essential for public safety.
Search warrants, in turn (as opposed to arrest warrants), had to specify the precise place to be searched.321 Their object could be stolen goods,322 coins,323 naval and military stores,324 goods from onboard ships,325 or idle and disorderly persons needed to serve in the army or navy.326 A warrant to search for and to seize private papers, however, was considered illegal. The reason, according to one English legal scholar, was “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 would be seized before, and without conviction, and he have no power to reclaim the goods, even after his innocence is cleared by acquittal.327
Search warrants had to include particulars similar to those required for warrants for arrest: an oath, before a justice, of a felony committed, with the party complaining having probable cause to suspect that the object being sought was in a particular place and demonstrating his reasons for such suspicion.328 The warrant had to specify that the search would be undertaken during daylight hours and directed by a constable or other public officer, with the complaining party present (to identify property that has been stolen).329 The “goods found, together with the person in whose custody they [were] taken,” were then to be brought before a justice of the peace.330
Underlying these rules was the importance of the sanctity of the home. As Almon, writing as the Father of Candor, eloquently explained in 1765:
Nothing, as I apprehend, can be forcibly taken from any man, or his house entered, without some specific charge upon oath. The mansion of every man being his castle, no general search-warrant is good. It must either be sworn that I have certain stolen goods, or such a particular thing that is criminal in itself, in my custody, before any magistrate is authorized to grant a warrant to any man to enter my house and seize it. Nay further, if a positive oath be made, and such a particular warrant be issued, it can only be executed upon the paper or thing sworn to and specified, and in the presence of the owner, or of somebody intrusted by him, with the custody of it. Without these limitations, there is no liberty or free enjoyment of person or property, but every part of a man’s most valuable possessions and privacies, is liable to the ravage, inroad and inspection of suspicious ministers, who may at any time harass, insult and expose, and perhaps, undo him.331
The following year, William Pitt, first Earl of Chatham, elaborated in Parliament on the underlying rationale for limiting the state’s ability to search. He emphasized that outside of narrow circumstances, the Crown and its officers could not enter the home:
The poorest man may, in his cottage, bid defiance to 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.332
Chatham’s words, like those of Coke, Hale, Hawkins, Blackstone, and Almon, reflected growing indignation at the Crown’s flagrant disregard for the sanctity of the home.
Thus it was that, by the time of the US Founding, English legal treatises, prominent law lords, the Court of Common Pleas, the Court of King’s Bench, Parliament, and the general public had come to embrace the broad understanding that, outside of pursuit of a known felon, a warrant must issue prior to search or seizure within the home.333 They rejected general warrants and required certain particulars even for specific warrants to be valid.334 The Crown nevertheless persisted in attempting to enter homes without a warrant and to execute general warrants under statutory provisions. But the practice was controversial, particularly in colonial America, where special rules under English law explicitly allowed for general searches in relation to customs.335 As the Crown sought to make greater use of the associated instrument (the writ of assistance), tension increased, mirroring the frictions that followed the English Civil War.
At the most general level, early American colonists reviled search and seizure on the grounds that they unduly interfered with private life. Colonial enmity extended beyond general warrants to any government entry into the home. Response to such searches tended to be immediate and visceral—not part of an intellectualized objection to promiscuous search.336 Thus it was that impost officers in Massachusetts Bay found themselves unable to search for illegally imported spirits—despite having the legal authority to do so.337 The question was not whether a warrant was general or specific; efforts to serve either kind of instrument resulted in hostility.338
It was not just the upper class that objected. In 1734, for instance, after a sea captain was slain when he used a cannon to prevent a marshal of the Vice Admiralty Court from boarding his vessel, the public spontaneously assembled and objected that the ship was the captain’s home.339 According to a local newspaper, “[a] greasy Fellow with a leather apron” declared:
[M]y house is my castle, and so is my ship, and therefore . . . I lay it down as a fundamental Law of Nations, that if the greatest Officer of the King has, was to come with a thousand Warrants against me for any crime whatsoever, if he offers to take me out of my castle, I can kill him, and the law will bear me out.340
The debate was not under what conditions the Crown could enter dwellings—the conversation that marked the legal discourse across the ocean—but whether homes could be entered at all.
Reflecting this attitude, from the earliest colonial times, there were fewer conditions under which officials in the Americas could enter homes to search or to seize items. Entire tracts of British search and seizure law, such as those relating to religious and political conformity, never made their way across the Atlantic.
The reason why is a matter of some speculation. To some extent, the use of general warrants for this purpose had been an invention of the Tudors, meant to consolidate power in England. Individuals seeking to flee from political or religious persecution might understandably choose not to import general warrants, a tool related to efforts to control dissent, into the New World.
Regardless of why this was the case, as a practical matter, by the end of the seventeenth century, England had approximately twice as many subject matter areas in which the Crown indulged in promiscuous search and seizure.344 And unlike in England, where such searches became the norm, in the American colonies they did not—except with regard to customs and writs of assistance, in which cases general searches, effected by officers of the Crown, became more common, increasing tension and providing a focal point for colonial discontent.
A writ of assistance served as a particular form of general warrant, providing customs agents (and later, naval officers) with the authority to search places ranging from ships and warehouses to private dwellings in order to look for goods that failed to meet the customs requirements. The name derived from the language of the writs themselves: all individuals present were required to “assist” the official engaged in the search.345
During the 1689 colonial uprising, Randolph—unpopular with the local population—found himself imprisoned before being repatriated to England.349 In April 1692, Randolph returned to the colonies and launched a three-year examination of nearly every port on the Eastern Seaboard, along the way strongly endorsing the use of general warrants.350 He documented inadequate record keeping, illegal trade, and corruption, with his final report leading to the introduction in Westminster of a new statute to cut off illegal colonial trade.351 The legislation created a system of admiralty courts to enforce regulations and to punish smugglers. Juries were to be constituted by Englishmen.352 The law required officers to take oaths to uphold their legal obligations, under threat of removal and penalty.353 The lord treasurer, commissioners of the treasury, and commissioners of customs would, “for the tyme being,” appoint customs officers in any city, town, river, port, harbor, or creek in the colonies.354 The statute gave the officials broad powers of search and seizure. It allowed officers of the Crown to issue writs of assistance to search ships, warehouses, or homes to find smuggled goods.355
Formal instructions to colonial officers following passage of the statute directed them to take special steps to enforce it using writs of assistance.356 Further incentive was provided by the statute itself: a third of the contraband seized would be awarded to the governor of the colony, with another third supplied to the person providing information leading to the seizure of the goods, and the remaining third being retained for the Crown.357
Increasing use of promiscuous searches and seizures followed, with violence frequently accompanying exercise of the powers.358 Colonists became ever more concerned by intrusions into their homes and businesses.359 Because the writs of assistance acted as a legal instrument, there was no judicial recourse.360 The documents gave officials carte blanche to access ships, warehouses, and homes, and all persons, papers, and effects contained therein, violating the oldest of English rights: that of a person to be secure in his home.361 By the mid-eighteenth century, tension simmered. As the geopolitics shifted, a renewed effort to employ writs of assistance brought it to a roiling boil.
In the mid-eighteenth century, Great Britain controlled the thirteen colonies. Its lands reached from the Atlantic Ocean to the Appalachian Mountains. Beyond the frontier, from La Nouvelle-Orléans in the south, through Fort Détroit on the Great Lakes, and up to Québec in the north, lay New France. Although more than three times as large as New England, it had just 70,000 settlers, in contrast to 1.5 million colonists to the east.362 The European countries’ expansionist tendencies, coupled with a lack of clarity as to territorial borders, contributed to frequent skirmishes for more land. War followed.
In 1752, angered by the Virginia governor’s continued grants of land to parts of the Ohio River Basin, the French and their allied Native American tribes in the region (the Seneca, the Lenape in Delaware, and the Shawnee) seized or evicted all English-speaking traders from the region.363 Virginia responded by sending a delegation of four military officers, plus an interpreter and a guide, to inform the French that the colony would not stand for such actions. Chosen to lead the parley was twenty-one-year-old George Washington, then a major in the British colonial forces.
The French met Washington with a polite but firm refusal to recognize Virginia’s claim. “As to the Summons you send me to retire,” Commandant Jacques Legardeur de St. Pierre, the elderly French officer to whom Washington delivered the Virginia governor’s demands, wrote in reply, “I do not think myself obliged to obey it.”364 The governor responded by promoting Washington to lieutenant colonel and directing him to return to Ohio to prevent the French from claiming the territory.365
Washington did return with a force of 160 men, only to find himself outnumbered.366 Upon hearing of Washington’s defeat, British Prime Minister Thomas Pelham-Holles decided to push for a swift, undeclared retaliation. Members of his cabinet disagreed.367 His opponents leaked the plans, giving notice to the French and catapulting what would have been a minor altercation on the edges of the empire into a full-blown military conflict. The French and Indian War, in turn, became the opening salvo in the Europeans’ Seven Years’ War.
Paxton, responsible for the Port of Boston, soon came into the possession of information indicating that the brother of Thomas Hutchinson, himself a well-known Loyalist to the Crown, had illegal goods stored in his warehouse.373 When Paxton arrived to conduct a search, Hutchinson challenged him, arguing that the writ was invalid, making Paxton vulnerable to charges of breaking and entering.374 He nevertheless gave him access to the storehouse.
Shirley, informed of Hutchinson’s objection, directed his customs officers to obtain a writ from the colony’s Superior Court of Judicature that would serve in place of his executive order.375 In June 1755, Paxton did so.376 Two months later, the Massachusetts Bay Superior Court issued the requested writ, directing that justices of the peace allow Paxton and his deputies “from Time to time at his or their Will as well in the day as in the Night to enter and go on board” any vessel, “to View & Search” and to carry out the duties of customs officers. During the daytime, the writ empowered Paxton “to enter and go into any Vaults, Cellars, Warehouses, Shops or other Places to search and see whether any Goods, Wares or Merchandises, in [the] same Ships, Boats or Vessells, Vaults, Cellars, Warehouses, Shops or other Places are or shall be there hid or concealed,” and, further, “to open any Trunks, Chests, Boxes, fardells or Packs made up or in Bulk, whatever in [which] any Goods, Wares, or Merchandises are suspected to be packed or concealed.”377 Within the next five years, all seven of Paxton’s fellow commissioners of customs in Boston had obtained similar writs.378
The language of these writs drew from the legislation passed by Westminster in 1660 and 1662. As previously discussed, the statutes allowed for house-to-house searches, without any demonstration of illegal acts by those subject to search. There was no further involvement of the judiciary. Anyone served with such a writ, moreover, was forced to comply.
In 1760, Lord Chatham, secretary of state for the Southern Department, upped the ante. He directed Sir Francis Bernard, who had become governor of the Province of Massachusetts Bay, to use writs of assistance to stop trade not only with French Canada, but also with the French Indies.379 The governor and royal customs officers were to “make the strictest, & most diligent Enquiry into the State of this dangerous and ignominious Trade.”380 Every step authorized by law was to be taken “to bring all such heinous Offenders to the most exemplary, and condign Punishment.”381
When King George II died, the writs entered a twilight: within six months of the death of the reigning monarch, all writs of assistance expired.382 Colonial officials therefore had only until April 1761 to obtain a renewal—creating a window for those who opposed the instruments to challenge them. The Society for Promoting Trade and Commerce within the Province stepped forward, petitioning the Massachusetts Bay Superior Court to hear its case.383
Like other colonial mercantile organizations, the Society had a strong influence on government policies and frequently found its position reflected in council and parliamentary decisions.384 In the period leading up to the Revolution, the Society took on increasing political importance—not least by openly challenging the customs officers.
James Otis Jr argued the case on behalf of the Society. Born in West Barnstable, Massachusetts, Otis had graduated from Harvard and subsequently entered into legal practice.387 His father later used his friendship with Shirley to secure a position for Otis as, first, justice of the peace and, then, deputy advocate-general of the Massachusetts Vice-Admiralty Court.388 When the Crown approached Otis to argue the case on its behalf, Otis resigned.389 The Boston merchants took this as an opportunity, securing his representation.390 He agreed to do it pro bono, later explaining in court, “The only principles of public conduct that are worthy [of] a gentleman, or a man are, to sacrifice estate, ease, health and applause, and even life itself to the sacred calls of his country.”391
Otis’s declamation against general warrants is one of the most celebrated orations in US history.392 President Adams, who witnessed the moment, later recalled, “Otis was a flame of Fire!”393 Otis had “breathed into this nation the breath of life.”394 He kindled the Revolution: “Every man of an crowded Audience appeared to me to go away, as I did, ready to take up Arms against Writs of Assistants.”395
Legal tracts on both sides of the Atlantic later credited Otis’s argument with being a central moment in the shift to independence. In the nineteenth century, one law dictionary explained, “The issuing of [writs of assistance] was one of the causes of the American republic. They were a species of general warrant, being directed to ‘all and singular justices, sheriffs, constables and all other officers and subjects,’ empowering them to enter and search any house.”396 They had been put into disuse “owing to the eloquent argument of Otis before the supreme court of Massachusetts against their legality.”397 Another dictionary noted, “The use of the writ of assistance was one of the causes of the revolt of the American colonies.”398 Modern scholars similarly hail Otis’s argument as laying “the foundation for the breach between Great Britain and her continental colonies.”399
Otis denounced general warrants as a tyrannical exercise of power. “I will to my dying day oppose,” he stated, “with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.”400 For Otis, the writ was “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in an English law-book.”401 For him, the threat was real. Otis used prose that bordered on sedition, warning that it was precisely this kind of power that had “cost one King of England his head and another his throne.”402
Just as Coke had disdained the actual practice of the Crown, it mattered naught to Otis that British legislation appeared to allow such instruments. “Your Honours will find in the old book, concerning the office of a justice of peace, precedents of general warrants to search suspected houses,” he noted.403 “But in more modern books you will find only special warrants to search such and such houses specially named, in which the complainant has before sworn that he suspects his goods are concealed.”404 Only specific warrants—even under the 1662 Act,405 which empowered a justice of the peace to search for stolen goods—were legal. As a result, “the writ prayed for in this petition being general is illegal.”406
Otis went on to highlight the problems with general warrants. Directed against all persons, “every one with this writ may be a tyrant.”407 Worse, the instrument gave the person wielding it the imprimatur of law.408 The writ had no expiration, nor was any return required.409 No one, therefore, ever could be held accountable in court for use of the power.410 It was not just the target of the search, moreover, whose freedom was thereby limited. Anyone carrying such a document could direct others to assist him, thus impacting their liberty as well.411
At stake were the same rights that Coke had extolled in Semayne’s Case and traced to Magna Carta: “[O]ne of the most essential branches of English liberty,” Otis noted, “is the freedom of one’s house. A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle.”412 The writ in question, “if it should be declared legal, would totally annihilate this privilege.”413
One of the greatest dangers of allowing promiscuous search was that the powers of the state could become an instrument of personal power. Otis referenced a recent case, recognizable to those present. As an act of personal retribution, a customs officer had used a writ of assistance to harass a constable (the constable had called the official before him to answer charges related to a breach of the Sabbath, or for swearing).414 Otis underscored his concern: “Every man prompted by revenge, ill humour or wantonness to inspect the inside of his neighbour’s house, may get a writ of assistance; others will ask it from self defence; one arbitrary exertion will provoke another, until society will be involved in tumult and in blood.”415 Reason, and the British constitution, demanded that the court find such instruments illegal. For Otis, the common law served as the ultimate protector of individual rights. Precedent fell subject to the principles of the law. “Though it should be made in the very words of the petition it would be void, [as] ‘AN ACT AGAINST THE CONSTITUTION IS VOID.’”416
Paxton’s Case served as a stark colonial example of the rejection of general warrants. It underscored how overreaching by the government undermined individual rights. In the course of his argument, Otis referenced Coke, Hale, and Magna Carta,417 even as he noted that the Crown’s failure to stay within the prescribed limits of government had led to the execution of Charles I and to the overthrow of James II—the first shot of the American Revolution, indeed. Otis’s argument underscores the fact that the Founding generation was intimately familiar with the arguments of the great English legal theorists and their denunciation of general warrants.
Coke’s Institutes, Hale’s History of the Pleas of the Crown, and Blackstone’s Commentaries had a profound influence on the American Founders.418 Thomas Jefferson considered these treatises central to understanding American law.419 In his later years, Jefferson wrote that the Institutes and Commentaries “are possessed & understood by every one.”420 The former, in particular, “[are] executed with so much learning and judgment that I do not recollect that a single position in it has ever been judicially denied.”421 Seven months later he again noted, “Coke has given us the first view of the whole body of law worthy now of being studied. . . . Coke’s Institutes are a perfect Digest of the law as it stood in his day.”422
To be fair, Jefferson did not always perceive Coke with a spirit of good will. As a nineteen-year-old law student, Jefferson had lamented:
I am sure to get through old Cooke [Coke] this winter: for God knows I have not seen him since I packed him up in my trunk in Williamsburgh. . . . I do wish the Devil had old Cooke, for I am sure I never was so tired of an old dull scoundrel in my life.423
Age, though, seems rather to have improved his opinion. Asked for advice in 1821 on the best way to approach learning the law, Jefferson replied, “1. Begin with Coke’s 4. institutes. [T]hese give a compleat body of the law as it stood in the reign of the 1st James, an epoch the more interesting to us, as we separated at that point from English legislation, and acknolege no subsequent statutory alterations.”424 He later commented on Coke, “a sounder Whig never wrote nor profounder learning in the orthodox doctrines of British liberties.”425 Jefferson assisted others by providing copies of the mainstays in English legal thought, for example, in 1806 presenting a 1736 edition of Hale’s History of the Pleas of the Crown to his nephew, Dabney Carr—a lawyer, writer, and future justice of the Virginia Supreme Court.426
Jefferson’s library contained all of the volumes heretofore discussed.427 In addition to Coke’s Institutes, he had two copies of Hale’s History of the Pleas of the Crown (as well as a copy of Hale’s History of the Common Law of England). The library boasted a first edition of Richard Crompton’s L’Authoritie et Jurisdiction des Courts de la Majestie de la Roygne,428 cited by Hale in support of the proposition that general warrants were unlawful. His shelves housed all four volumes of Blackstone’s Commentaries, as well as his reports. Indeed, Jefferson appeared to be almost in dialogue with Blackstone, frequently opining on Blackstone’s writings in his correspondence.429 Blackstone was of such pervasive influence that Jefferson worried that his work would become a source of litigation should the Committee of the Revised Code adopt it in 1776.430
Jefferson’s reliance on scholars who rejected general warrants is notable, not least because his grounding in English treatises and case law became cemented into American law. Between 1776 and 1778, Jefferson, George Wythe, and Edmund Pendleton rewrote the laws of Virginia. To Jefferson fell the responsibility of incorporating English common law into the statutory regime.431
The number of prominent colonists and early American leaders who read or had copies of English legal treatises is too extensive to list. Even a few examples will suffice: Adams, Samuel Sewall, Francis Dana, and Robert Treat Paine from Massachusetts Bay Colony; St. George Tucker, Wythe, William Byrd, and Robert Carter in the Colony of Virginia; Jay, James Alexander, James Montgomery, and Cadwalader Colden in New York; and Gouverneur Morris, Benjamin Chew, and James Wilson in Pennsylvania.436 In addition to residing in private collections, the monographs were widely available in college libraries and, as soon as public libraries came into being, to the public. By 1723, Harvard College had copies of Coke’s Institutes. Eventually, versions of the original texts, with notations making them relevant to the American context, were published.437
The Founders’ reliance on English law and legal tracts provided a baseline for their expectations. As Englishmen, they came to expect that certain norms would be observed in relation to the rights that they held under the British constitution. Simultaneously, the Founders closely followed the evolution of the common law and contemporary legal developments in England. In both regards, general warrants lay beyond the pale.
Colonial newspapers covered the sagas of Entick and Wilkes with an enthusiasm paralleling that of modern Downton Abbey fans. Papers in Connecticut,438 Georgia,439 Massachusetts,440 New Hampshire,441 New York,442 North Carolina,443 and Rhode Island444 provided play-by-play accounts of Wilkes’s arrest, the search of his home, and his subsequent imprisonment in the Tower of London. The Boston Post-Boy reported that upon Wilkes’s release, “the bells of [Guilford], famous for its loyal and constitutional principles, rang a peal to liberty.”445 Papers recounted how the crowds cheered as they walked with Wilkes from the Tower of London to his home.446 Colonial periodicals printed, verbatim, the letters that Wilkes subsequently sent to the British secretaries of state, demanding the return of his stolen papers.447 Others covered Wilkes’s effort to secure “a warrant to search the houses of the Earls of Egremont and Halifax, his majesty’s principal Secretaries of State, for goods stolen from the house of said Wilkes. . . . [B]ut the sitting justice refused to issue the said warrant.”448 Throughout the summer and autumn of 1763 and into the winter and spring of 1764, papers continued to cover the case in great detail.449 Songs were written in his honor. Wilkes was a celebrity.450
Colonial media embraced Wilkes’s fight, and that of Entick, in the cause of freedom. Boston newspapers reported that the verdict in Wilkes condemned “the dangerous practice of issuing general and unconstitutional warrants,” stating that “no age has produced a determination of more general and extensive consequence to every free born ENGLISHMAN.”451 In North Carolina, a local paper praised the Entick trial: “The great candour and impartiality shewn in the trial of Mr. Entick last Friday, gave the highest pleasure and satisfaction to all present; and in no part more than the ardent desire which was expressed that the Jury would consider the cause simply, as it stood before them.”452 The paper lauded, “[T]he whole matter was argued and considered fairly by itself, with a strictness of justice that was thought deserving of the highest commendation.”453 Bequests to Wilkes were seen “as an acknowledgment to him who bravely defended the constitutional liberties of his country, and checked the dangerous progress of arbitrary power.”454
Wilkes was hardly the only person affected by the general warrant issued in response to North Briton No 45. The incidents of arrest, search, and seizure related to the warrant gave rise to dozens of trials, which were costly to the Crown and further polarized British public opinion.455 Adulation may have centered more on concerns related to freedom of the press and the way in which seditious libel was used than on general warrants per se, but the exercise of promiscuous search and seizure was an important element in the equation. The court invoked English subjects’ ancient rights, drawing a direct link between general warrants and a violation of Magna Carta.456
News reached the colonists by media and post. While in London, Benjamin Franklin, writing to his son, described the crowd that gathered for Wilkes’s reelection. The crowd sang and filled the streets of London, “requiring gentlemen and ladies of all ranks as they passed in their carriages to shout for Wilkes and liberty, marking the same words on all their coaches with chalk, and No. 45 on every door.”457 Franklin continued, “[F]or fifteen miles out of town, there was scarce a door or window shutter next the road unmarked; and this continued, here and there,” some sixty-four miles from London.458
Deeply cognizant of the rejection of general warrants in Great Britain, and having a salient example of the same in Paxton’s Case, the colonists viewed promiscuous search and seizure with ever-deeper antagonism. A determination by the British Attorney General William DeGrey that the authority for writs of assistance had not been extended to New England via the 1696 Navigation Act,459 and Parliament’s effort to address this deficiency by the introduction of a new statutory provision, did little to stem the tide.
The vehicle chosen by Westminster was none other than the Townshend Revenue Act of 1767. Infamous for its effort to extort money from the colonists to pay for the French and Indian War (following repeal of the Stamp Act in 1766), the first Townshend Act included a provision that gave customs officers the authority “to enter houses or warehouses, to search for and seize goods prohibited to be imported or exported . . . or for which any duties are payable, or ought to have been paid.”460 The legislation provided the highest court in each colony with the authority to issue writs of assistance to customs officers.461 The statute did not require that the writs incorporate general terms of search and seizure. As a matter of practice, colonial courts tended, when they did grant writs, to make them specific, as they rejected general warrants as illegitimate.462 Practice thus embraced Otis’s position.463
Along with practice, American legal treatises written between 1765 and 1776 adopted the perspective of English legal scholars, as well as that articulated by Otis in Paxton’s Case. In 1767–68, John Dickinson wrote Letters from a Pennsylvania Farmer, a series of essays decrying the Townshend Acts. “By the late act,” he wrote,
Dickinson labeled such authority an “engine of oppression.”465 Whether or not such powers existed in Great Britain did not matter. “[T]he greatest asserters of the rights of Englishmen,” he inveighed, “have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.”466 If this power could destroy liberty in England, “it must be utterly destructive to liberty” in the New World—where trials for violations would be held before judges who were wholly dependent upon the Crown for their positions and who were responsible for issuing the writs in the first place.467 That such writs were open to arbitrary exercise, and that property rights were not well protected, added fuel to the fire.
In 1764, English journalist and political writer Almon similarly condemned general warrants, noting that their rejection was not limited to people with doors on their homes.468 He wrote:
[I]t would be (as Hawkins says) extremely hard, to leave it to the discretion of a common officer to arrest what persons, and search what houses he thinks fit: and if a Justice cannot legally grant a blank warrant for the arrest of a single person, leaving it to the party to fill it up, surely he cannot grant such a general warrant, which might have the effect of a hundred blank warrants.469
That the secretary of state engaged in this practice did not make it legal—numerous examples in which officials had ensured the sufficiency of warrants likewise existed. “In truth,” he wrote,
there has been no uniform practice in the office, as may be seen by the variant and multiform warrants printed from thence in Quarto, and privately distributed to trusty friends . . . with the inscription of most secret. Much less would precedents only from the time of the Revolution be sufficient to justify such an illegal practice.470
Being a secretary of state—or even a member of the Privy Council—did not transform a person into a justice of the peace, who alone held the authority to issue a warrant.471 Thus it was “that the two grounds suggested as an authority for the issuing of these General Warrants, namely, the constant exercise and usage of them, and the antiquity of the Secretary of State as a Privy Counsellor,” failed.472
As with the jurists’ conclusion that the principles of the law could not be overcome by efforts by the Crown to levy such powers, Almon noted:
[E]ven if the usage [of general warrants] had been both immemorial and uniform, and ten thousand similar warrants could have been produced, it would not have been sufficient; because, the practice must likewise be agreeable to the principles of law, in order to be good, whereas, this is a practice inconsistent with, and in direct opposition to, the first and clearest principles of law.473
He added, “[i]n one word, no warrant whatever, in any case or crime whatever, that names or describes nobody in certain, is good, or can be justified in law, in any circumstances whatever.”474
Colonists continued to raise their objections to the Crown being allowed access to their homes. In 1773, the Boston Committee of Correspondence issued its first communication to the towns of Massachusetts, including among its grievances that the Crown had assumed for itself “power too absolute and arbitrary,” as “[p]rivate premises are exposed to search.”475 Bolton’s committee of twenty-one lamented that the Crown could subject their homes to unlimited inspection.476 Towns in Massachusetts quickly formed their own committees of correspondence, prompting similar entities to be constituted in Connecticut, New Hampshire, Rhode Island, and South Carolina. By early 1774, the committees had superseded the colonial legislatures and Crown officials in all thirteen colonies, giving individuals an opportunity to voice their grievances, including opposition to promiscuous search and seizure.477
The First Continental Congress picked up the baton, remonstrating against the Townshend Acts and other revenue statutes as accruing immense power and using the law to subjugate the colonies.478 The Continental Congress averred that their rights and liberties were being infringed, citing the multiplication of “[e]xpensive and oppressive offices.”479 Among their chief concerns was that “[t]he Commissioners of the Customs are empowered to break open and enter houses without the authority of any Civil Magistrate, founded on legal information.”480
Far from the more modern claim made by some scholars—that the Crown could enter at will and that it was only once a warrant issued that particularity was required—the colonial understanding was that, outside of narrow conditions, the Crown could not enter at all, without a specific warrant issued by a judge.
Like their English predecessors, the newly formed American states objected to the use of promiscuous search and seizure. But they went beyond English legal theorists’ rejection of the instruments in three important ways.481
First, the early state constitutions created a positive right—namely, to be secure in one’s person, house, papers, and effects against unreasonable search and seizure. Although, at least since 1967, the concept of “unreasonable” has become untethered from the original meaning,482 the word itself implied something different in the eighteenth century. “Unreasonable” translated into “against reason,” or against “the Reason of the Common Law.”483 Because general warrants violated the common law (and were thus unreasonable), they were not legal. The right to be secure in one’s person, house, papers, and effects thus meant a prohibition on promiscuous search or seizure.
Second, the Founders embraced particularized warrants as the only way in which the government could breach the walls of the home, outside of active pursuit of felons.
Third, merely the fact that a warrant was specific was not enough. States went to great pains to outline precisely what information would have to be presented, by whom, which procedures would have to be followed, and who could issue warrants for them to be considered valid. These elements provided a baseline for evaluating the strength of the government’s case for violating the sanctity of the person, interfering with private property, or breaching the walls of the home.
The nascent state declarations of rights and constitutions incorporated these changes before the Fourth Amendment cemented them into federal law. Virginia led the charge.484
The fifth Virginia Convention met in May 1776. Jefferson, Washington, Patrick Henry, Richard Henry Lee, George Mason, Pendleton, Wythe, and other prominent Virginians gathered in the House of Burgesses.485 A portrait of George III hung on the wall, staring down at those gathered.486 Despite such an immediate and visceral reminder of the power of the English Crown, the delegates voted to adopt a declaration of rights, to adopt a constitution, and to forge alliances with the colonies to make a new country.487 Mason became responsible for drafting the Virginia Declaration of Rights and, together with James Madison, the state constitution.488 The documents became central to the formation of the new republic. Other states looked to them for guidance, even as the US Constitution, and, later, the Bill of Rights, echoed their substance.
The natural rights of man figured largely in the declaration. Mason drew from John Locke’s Second Treatise of Government, as well as Baron de Montesquieu’s The Spirit of Laws.489 He looked to English history and the British constitution, which had wrestled with the extent of rights and the duties owed to the Crown. From the Grand Remonstrance and beheading of Charles I; through the Glorious Revolution, the 1689 English Bill of Rights, and the succession of William III and Mary II to the throne; and continuing through the restoration of Charles II, the experience of Englishmen was one of the gradual institution of rights as held against the government.
Accordingly, Mason highlighted the importance of consent.490 He asserted the principle of taxation only with representation.491 He acknowledged the danger of military power, prohibiting the presence of a standing army.492 He recognized the prohibition on excessive bail and fines.493 The declaration outlawed cruel or unusual punishment.494 It established free elections.495 It prohibited forfeiture without conviction.496 And it underscored the importance of jury trial.497
To these rights, Mason added the right, long recognized by English legal theorists,498 against “grievous and oppressive” search and seizure. To accomplish the last, Mason made general warrants illegal and specified what particulars would be necessary for a valid warrant.499 To some extent, this was an American innovation. Coke, as previously mentioned, had included a clause in the 1628 Petition of Right arguing that general warrants for arrest violated Magna Carta.500 Despite James II’s later use of general warrants, and English legal treatises’ consistent rejection of the same, the 1689 English Bill of Rights had not incorporated an equivalent clause.
Mason’s decision to include a prohibition on promiscuous search and seizure took an aspect of the common law and turned it into a written, guaranteed right, as held against the government. It could not be abridged by mere statute. And Mason went further. He did not simply prohibit general warrants. He was careful to spell out what would have to be done for a specific warrant to be valid.
The Virginia Declaration of Rights stated:
[G]eneral warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.501
To obtain a warrant, officials would have to present evidence of criminal activity to a court. The name of the person on whom the warrant would be served would have to be included, as well as the illegal activity in question. On June 12, 1776—just one month after entrusting Mason with the drafting of the declaration—the convention adopted it.502
Pennsylvania followed Virginia’s lead. Some of the foremost political figures of the time—George Bryan, James Cannon, Franklin, and Jefferson—helped to draft the state constitution. Its first article focused on rights. Like the Virginia Declaration, the Pennsylvania Constitution established the right of “the people” to “hold themselves, their houses, papers, and possession free from search and seizure.”503 To this, the document added, “warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.”504 The first statement thus established a right—the right against entry into the home absent a warrant. Pennsylvania made general warrants void, even as it established, in the second clause, additional requirements for a valid warrant.
Delaware followed a similar approach. In September 1776, it adopted a Declaration of Rights, stating that the absence of an oath would render specific warrants “grievous and oppressive,” even as it condemned all general warrants as “illegal.”505 The state constitution went on to refer to the Declaration of Rights, stating that “[n]o article of the declaration of rights and fundamental rules of this State, agreed to by this convention . . . ought ever to be violated on any presence [sic] whatever.”506
Overlapping with deliberations in Pennsylvania and Delaware, Maryland delegates met between August and November 1776, at which time they drafted and approved their state’s first constitution. A Declaration of Rights constituted the first section.507 It, too, emphasized search and seizure. The corresponding clauses took several phrases from the Virginia document, further shaping it to fit Blackstone’s rejection of general warrants. Article XXIII read:
That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants—to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special—are illegal, and ought not to be granted.508
This language went beyond Virginia’s declaration by requiring that the evidence provided for a search be upon oath. It reflected Virginia’s use of “grievous and oppressive,” and, like Delaware, it used Blackstone’s condemnation of the instruments as “illegal.” By doing so, Maryland ensured that, even upon evidence of a crime sworn under oath, general warrants would not be allowed.
North Carolina, which in December 1776 inserted a Declaration of Rights as the first section of its constitution, eliminated promiscuous search and seizure across the board. It included a section on “general warrants,” in which it made their use for arrest, search, or seizure illegal on the grounds that the instruments were “dangerous to liberty.”509
The Massachusetts Constitution similarly objected to the use of general warrants.510 The language it adopted, like that of New Hampshire, was similar to the language that Madison used in what became the Fourth Amendment. Authored by Adams, the document generates insight into the original meaning of the text.511 Adams’s choice of language reflected the legal legacy that he inherited, as well as contemporary understandings of the illegality of general warrants and the requirements of specificity.
Like his colleagues in Virginia and Pennsylvania, Adams began by articulating the underlying right: “Every man has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”512 As elsewhere, the choice of the word “unreasonable” conveyed a particular meaning: namely, against reason, or against the reason of the common law. The concept stemmed from the contemporary understanding at the time of the relationship between “reason” and the common law. Although disagreement marks the precise source of such reason (for example, custom, natural law, or Continental precepts),513 the basic idea was that the principles inherent in common law had legal force. That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal. General warrants, being against the reason of the common law, were thus unlawful, or void.
This interpretation, adopted by the Founders, reflected the common-law approach embraced by English scholars. Adams had read Coke, Hawkins’s Pleas of the Crown, and other English legal treatises.514 In 1610, Coke had asserted in dicta in Dr. Bonham’s Case515 that a statute was void if it was “against common right and reason,” that is, if it violated the basic principles of common law.516 Similarly, in 1628, Coke spoke in Parliament of general warrants as being “against reason.”517 The use of “unreasonable” as meaning “against reason” reflected a common philosophical and legal practice. Locke, in a statement referring back to Dr. Bonham’s Case, converted “against reason” to “unreasonable.”518 Blackstone, too, altered Coke’s phrase of “against reason” to “unreasonable.”519
It was not just Coke and Blackstone to whom Adams hearkened for the understanding of general warrants as “against reason” and thus “unreasonable.” Adams’s abstract of Otis’s argument notes that Otis referred to writs of assistance as being “against reason”—a phrase that he converted in the Massachusetts Constitution to “unreasonable.”520
Adams’s more lengthy notes on Otis’s argument draw the point even more forcefully. In them, he wrote, “An Act against the Constitution is void: . . . and if an Act of Parliament should be made, in the very Words of this Petition, it would be void.”521 He went on to cite the specific page in Coke’s opinion in Dr. Bonham’s Case on which Coke stated that an act is “void” when it is “against common right and reason.”522 Adams then noted Otis’s statement that the “[r]eason of the Common Law [is] to control an Act of Parliament.”523
Legal tracts of the day made a similar link between unreasonableness (as against the reason of the common law) and illegality. In 1751, A New Law-Dictionary explained that common law “[i]s founded upon Reason; and is said to be the Perfection of Reason, acquired by long Study, Observation and Experience, and refined by Learned Men in all Ages.”524 It explained, “It has been observed [that Reason] is the very Life of the Law; and that what is contrary to it, is unlawful: When the Reason of the Law once ceases, the Law itself generally ceases; because Reason is the Foundation of all our Laws.”525 In other words, reason was considered to be the life of the law, and whatever was contrary to it was therefore unlawful.526 As an early nineteenth-century dictionary noted, “Reason is called the soul of the law; for when the reason ceases, the law itself ceases.”527
Just as legal tracts recognized that which was contrary to reason as unreasonable, or illegal, so too did tracts highlight general warrants as being unreasonable and thus a violation of the common law. The Law of Arrests, published in London in 1742, for instance, noted “the Unreasonableness, and seeming Unwarrantableness of [general warrants].”528 This language was consistent with Johnson’s Dictionary, the principal English lexicon of the time, which defined “unreasonable” as “[n]ot agreeable to reason.”529
So strong was the pull of the reason of the common law that statutes at the time of the Founding had to be read in a manner consistent with it. Contemporary legal tracts underscored the rule.530 Courts similarly embraced it. Thus, in a dispute in 1774 over access to a navigable river, a provincial court in Baltimore County, Maryland, cited Coke, asserting: “The surest construction of a statute is by the rule and reason of the common law.”531 In 1797, the Supreme Court of Appeals of Virginia recognized the rule that statutes were to be interpreted as closely as possible to “the reason of the common law.”532 In 1804, the Superior Courts of Law and Equity of North Carolina similarly cited Coke’s rule of interpreting statutes “as near to the rule and reason of the common law as may be.”533 It limited how far afield legislatures could go.534 The reason of the common law permeated judicial opinions over the first decades of the country’s existence.535
The eighteenth-century meaning of “unreasonable” thus carried a different meaning than that which currently marks our modern, relativistic understanding of the word.536 We now see “unreasonable” as suggesting that the behavior in question is inappropriate under the circumstances, while “reasonable” tends to be understood as appropriate. In the Oxford English Dictionary, for instance, “reasonable” means “[n]ot going beyond the limit assigned by reason; not extravagant or excessive; moderate.”537 “Unreasonable,” in turn, suggests something beyond the appropriate limits, or “excessive in amount or degree.”538
The eighteenth-century construction is a much more formalistic framing. According to Samuel Johnson’s A Dictionary of the English Language, “reasonable” was understood at the time as “agreeable to reason,”539 a formulation that reflected the meaning consistent with the reason of the common law. It carried a sense of being logical and consistent, while “unreasonable” meant “illogical,” or “inconsistent with the common law”—making the action illegal.540 In juxtaposition, Johnson’s Dictionary defined “unreasonable” to mean “exorbitant,” or “claiming, or insisting on more than is fit.”541 It understood “exorbitant,” in turn, to mean “[d]eviating from the . . . rule established.”542 “Unreasonable” thus carried a quality that meant actually going outside the boundaries of a settled rule—in this case, the common-law tenet making general warrants void.543 It was not a matter of degree. It was a matter of whether it met the standards or not.
The state constitution went on to describe what would fall outside acceptable bounds:
All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure.544
Warrants lacking the appropriate specificity fell outside common-law limits. By placing the rule into the written constitution, Adams secured the right against not just warrantless search and seizure, but execution of the same with a warrant lacking the requisite particularity.
In the context of the times, warrantless entry, and entry under general warrants, defined unreasonable search and seizure. The right to be protected within one’s home included the right not to be subject to promiscuous search and seizure. The government thus could not, at will, search an individual’s “person, his houses, his papers, and all his possessions.”545 Further criteria were required for a specific warrant to be valid.
By using “therefore,” Adams thus tied the requirements of a specific warrant to the general protection against government interference.546 The clause continued, “[A]nd no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.”547 The supplemental language cemented process into a constitutional requirement. Not only would a warrant with appropriate specificity be required for entry, but it had to be issued consistent with the rule of law.
Massachusetts, prior to the Founding, had come the furthest with regard to instituting specific warrants in place of general warrants, paving the way for the subsequent language that Madison adopted in the Fourth Amendment.548 It also went the furthest in spelling out the criteria that would have to be met for the government to conduct lawful search and seizure.
Yet more states took steps to restrict government powers of search and seizure. The parallel clause in the New Hampshire Constitution of 1783 replicated the one adopted by Massachusetts nearly word for word.549 Vermont’s approach mirrored that adopted by Pennsylvania, in which the first chapter of its constitution entrenched certain rights.550 As in the Massachusetts and New Hampshire constitutions, the relevant clause began with a statement: “[T]he people have a right to hold themselves, their houses, papers and possessions free from search or seizure.”551 The sanctity of the home lay at the heart of the protection. In order to be secure, the government’s access to one’s house, papers, and possessions must be constrained. Echoing Adams’s structure in the Massachusetts document, the Vermont Constitution followed with the word “therefore” before detailing the conditions required prior to issuance of a warrant: it had to be specific and limited, supported by oath or affirmation, and backed by sufficient evidence of criminal activity. Other states followed suit.
Far from supporting Professor Amar’s 1994 thesis that the walls of one’s home could be entered without a warrant—wherein the Fourth Amendment requires only that, when a warrant does issue, it must be specific—the right established by the Vermont Constitution, as well as by the other state constitutions, was that the home could not be entered at all, outside of what is now understood as exigent circumstances, without a warrant meeting the specifics listed. The question was not, then, one of more or less reasonableness, as Amar asks,552 but what the law allowed. By 1787, Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Vermont, and Virginia all explicitly prohibited general warrants.553
The state declarations and constitutions played a critical role in the early Republic.554 They made it clear that the use of general warrants, in particular, ran contrary to the reason of the common law. They simultaneously turned the generalized grievance about the amassing of too much power by the Crown into a written guarantee against promiscuous search and seizure.555 They elevated the status of general warrants as contrary to common law to a constitutional tenet, ensuring that any subsequent adaptation of the common law to the American context would refrain from infringing the right. They also reflected the Founding generation’s concern about individual security, as a concomitant of limited government power. If the state governments were to be allowed to conduct search or seizure, it could be only under severely constrained conditions.
With this history in mind, Amar’s textual critique of the early state constitutions falls short. “If a warrant requirement was intended but not spelled out,” he suggests, “if it simply went without saying—we might expect to find at least some early state constitutions making clear what the federal Fourth Amendment left to inference. Yet although many states featured language akin to the Fourth Amendment, none had a textual warrant requirement.”556 What Amar fails to recognize is that each of the state provisions was itself part of a broader context that forbade search without a warrant. Each provision prohibited warrantless entry, as well as general warrants, and laid out further elements that would have to be met for a specific warrant to issue.
Amar cites four early state cases in support of his assertion,557 each of which fails inspection. He characterizes the first case as “upholding a warrantless seizure of liquors,”558 without noting that it dealt with the arrest of an individual in the midst of committing a felony—in this case, transporting liquor by horse and wagon.559 Such seizure had long been recognized as an exception to the warrant requirement.
Amar considers another case, Mayo v Wilson,560 to stand for the proposition that New Hampshire’s equivalent Fourth Amendment clauses merely “guard against abuse of warrants issued by Magistrates,” without limiting arrest without a warrant.561 But that case similarly centered on the arrest of an individual in the midst of publicly breaking the law. The court itself recognized the exception as applying narrowly to situations in which (a) “a man is present when another commits treason, felony or notorious breach of the peace”; (b) a breach of the peace has occurred, such that “any present may during the continuance of the affray . . . restrain any of the offenders, but if the affray be over there must be an express warrant”; or (c) “one man dangerously wound[ed] another, [such that] any person may arrest him, that he be safely kept, till it be known whether the person shall die or not.”562 Arrest absent a warrant could also be made under strong suspicion of illegal activities or, for a watchman, when a nightwalker may be present at “unreasonable hours” by the common law.563 In other words, if done in the course of illegal activity, then arrest without a warrant might be valid—although, for private citizens, as for public officers, an action in trespass could still be brought, so as to limit even these situations.
The final two cases cited by Amar explicitly refer to the Fourth Amendment’s prohibition on general warrants—rather cutting against Amar’s thesis that a warrant is not required. In Wakely v Hart,564 the court wrote, “[I]f known to have committed a felony, and pursued with or without warrant, he may be arrested by any person. . . . These are principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the [C]onstitution.”565 Similarly, in Rohan v Sawin,566 the Massachusetts state court noted that “[t]he probability of an escape . . . if the party is not forthwith arrested” proved central to the determination of whether an arrest without a warrant would be considered valid.567 “The question of reasonable necessity for an immediate arrest, in order to prevent the escape of the party charged with the felony, is one that the officer must act upon.”568 The court noted the prohibition of promiscuous search and seizure in the Fourth Amendment:
It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue solely upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety [requires it].569
While arrest in the course of illegal activity might be valid without a warrant, a search of one’s domicile, absent the same, failed constitutional muster.
The Articles of Confederation, a triumph for those who feared the tyranny of George III, proved inadequate to sustain the country’s economic needs. The national government had no power to protect trade among the new states. Without a uniform system of currency, saddled by debt, and lacking the ability to raise revenue, the government could neither pay its accounts nor counteract inflation. Violence and civil unrest threatened. The country had no national independent judiciary, no head of government to handle foreign affairs, and no locus for addressing internal and external conflict. Further beset by legislative inefficiencies that stemmed from the ability of five states to block any law, as well as from a cumbersome amendment process (requiring unanimity), Congress floundered.570 In 1787, state delegates gathered in Philadelphia to reevaluate the structure.
The first aim of the Framers was to augment the power of the national government.571 But more power meant an increased risk that the authority would be abused. It also raised the question whether the rights previously secured by the state constitutions for the people would be sufficient to guard against overreach by the national government.572 The Framers designed the framework to protect rights by adopting a principle of enumerated powers, creating a delicate balance between the different functions of the government, incorporating federalism, carefully delineating broad representation, and ensuring a republican form of government. But concern percolated as to whether the structural protections would be sufficient to restrain a stronger national government.573
Mason, who had written the Virginia Declaration of Rights, raised his concern five days before the convention adjourned that they had failed to address individual rights.574 Almost all of the state constitutions had incorporated rights—generally as the first clause or article in the text. Mason lamented that the Constitution had not “been prefaced with a Bill of Rights.”575 He volunteered to second a motion to insert a statement of rights at the beginning, on the grounds that “[i]t would give great quiet to the people.”576 He did not think that it would take more than a few hours to draft. Elbridge Gerry agreed and promptly moved for a committee to prepare the document.577 Mason seconded the motion.578 But Roger Sherman objected, noting that the state declarations of rights were not repealed by the Constitution. Untouched, they would prove sufficient for the protection.579 Mason’s response to Sherman, that the Supremacy Clause rendered the state documents impotent, failed to sway the delegates. Ten states voted no, with one (Gerry’s home state of Massachusetts) abstaining.580
Gerry and Mason remained steadfast in their concern. Gerry later explained to the Massachusetts state legislature, “My principal objections to the [Constitution include] . . . that the system is without the security of a bill of rights.”581 Mason similarly complained to his home state, “There is no declaration of rights; and, the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights in the separate states are no security.”582
The decision not to include a bill of rights contributed to growing unease about the new powers afforded the federal government. In September 1787, Lee, from Virginia, and Melancton Smith, from New York, attempted to induce Congress to attach a bill of rights to the Constitution prior its circulation to the states.583 Lee explained that “[u]niversal experience” had shown the need to insert “the most express declarations and reservations . . . to protect the just rights and liberty of Mankind from the Silent, powerful, and ever active conspiracy of those who govern.”584 Resultantly, the Constitution ought to “be bottomed upon a declaration, or Bill of Rights, clearly and precisely stating the principles upon which the Social Compact is founded.”585 Lee included in this concern the right to be secure against “unreasonable searches [and] seizures” of one’s “papers, houses, persons, or property.”586
In the end, Congress did not agree to Lee’s proposal. Instead, by unanimous vote, it forwarded the new Constitution to the states for ratification.587
Scholars have written extensively and well on the state conventions and public debates that accompanied ratification of the US Constitution.588 For now, it is sufficient to note that foremost among a number of states’ concerns was the importance of amending the document to include a bill of rights. The question was whether one would be required prior to ratification, possibly as the result of a second constitutional convention or in the context of the state deliberations, in the course of which the Constitution might be further amended, or whether it could be addressed after ratification. Whether one reads the machinations as a political calculation, a battle over the role of popular sovereignty, or a fundamental commitment to rights, the issue assumed center stage, particularly in the battleground states.589 Concerns about general warrants, and about ensuring that specific warrants contained sufficient particularity, figured largely in the conversation, which centered on ensuring that the rights of the people would be secure against government overreach.590
Virginia, again, led the way. The depth and breadth of the debate that followed was perhaps unsurprising: Virginia was the first part of the country that had been permanently settled (Jamestown, in 1607),591 the state with the oldest lawmaking body (the House of Burgesses),592 and the first entity to issue a declaration of rights.
The outcome of the debate mattered. Virginia was enormously important and influential, owing in part to its size. As of 1780, the United States had approximately 2.8 million people. More than half a million people lived in Virginia—whose population nearly totaled those of the next two most populous states combined.593 Virginia played a prominent role in the American Revolution and, thereafter, on the national stage. Four of the first five presidents (Washington, Jefferson, Madison, and James Monroe) were Virginians. Although Virginia had sent seven delegates to the Constitutional Convention, four—Mason, James McClurg, Edmund J. Randolph, and Wythe, all prominent figures—had not signed it.594 The battle lines were drawn, and the drama played out at the state convention.
Virginia’s charismatic former governor, Patrick Henry, let loose—and what a tour de force it was. Even Jefferson, who deplored Henry’s legal acumen and held a long-lasting grudge against the man, acknowledged that he was “the greatest orator that ever lived.”595 Henry began, “[O]ur rights and privileges are endangered, and the sovereignty of the states will be relinquished. . . . [A]ll your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost” by the new Constitution.596 Such “tame relinquishment of rights” was not “worthy of freemen.”597 Henry asked:
When these harpies are aided by excisemen, who may search, at any time, your houses, and most secret recesses, will the people hear it? If you think so, you differ from me. Where I thought there was a possibility of such mischiefs, I would grant power with a niggardly hand.598
What was needed was a bill of rights to secure the people against the federal government.599
Henry pointed out that Virginia had not been content with a structure that divided power among the legislative, executive, and judicial branches. Nor had Virginia relied on direct representation. To the contrary, the state had introduced a declaration of rights as an added protection. What was good for the goose was good for the gander. Henry continued:
If you give up [state power], without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw—a government that has abandoned all its powers . . . without check, limitation, or control. . . . You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!600
Why, indeed, had the Convention not included a bill of rights? “Is it because it will consume too much paper?” Henry asked, tongue in cheek.601 Under the Virginia Constitution, the government was “restrained from issuing general warrants to search suspected places, or seize persons not named, without evidence of the commission of a fact, &c.”602 But under the federal Constitution being contemplated,
[t]he officers of congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained within proper bounds.603
General warrants, for Henry, earned a special place of shame. He stated:
I feel myself distressed because the necessity of securing our personal rights seems not to have pervaded the minds of men; for many other valuable things are omitted:—for instance, general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime, ought to be prohibited.604
The problem was that citizens’ property could be seized “in the most arbitrary manner, without any evidence or reason.”605 Everything sacred could “be searched and ransacked by the strong hand of power.”606
Others in Virginia shared Henry’s concerns.607 Accordingly, the state convention appointed the Wythe Committee.608 It proposed adoption of a new bill of rights—essentially, a revised list of the entitlements detailed in the Virginia Declaration of Rights. Unanimously approved, the draft bill of rights was forwarded, along with the ratification of the US Constitution, to the federal legislature.609 The ratification document recommended that “there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people.”610
In the proposed text, Virginia established a right against unreasonable search and seizure. To ensure this right, the document prohibited not just general warrants, but specific warrants lacking the requisite particularity. Proposed Article XIV read:
That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property; all warrants, therefore, to search suspected places, or seize any freeman, his papers, or property, without information on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous, and ought not to be granted.611
Without the guarantee of a bill of rights, it is highly questionable whether the Virginia delegates would have ratified the US Constitution.612 The state convention resolved to enjoin Virginia’s representatives in Congress “to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of” the clause.613 Even once the draft bill of rights had been passed and attached to the ratification document, the vote was narrow: delegates approved it 89–79, providing those in support of the new Constitution only a five-vote margin.614
New York passed the Constitution by an even narrower margin: 30–27.615 Heated public debate over the failure of the Constitution to prohibit general warrants surrounded the convention. Writing in the New-York Journal in November 1787, a “Son of Liberty” outlined “a few of the curses which will be entailed on the people of America, by this preposterous and newfangled system, if they are ever so infatuated as to receive it.”616 The fourth item in the list read:
Men of all ranks and conditions, subject to have their houses searched by officers, acting under the sanction of general warrants, their private papers seized, and themselves dragged to prison, under various pretences, whenever the fear of their lordly masters shall suggest, that they are plotting mischief against their arbitrary conduct.617
Promiscuous search and seizure gave the government the ability to target political opponents. And by silencing criticism, the instruments freed the government to act badly.
The convention took the critique to heart. As part of their formal ratification—and not just as an accompanying document—New York entered the statement:
That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore, that all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.618
The language tracked that of the earlier state constitutions. The right against unreasonable search and seizure meant that the government could not enter the home without a warrant meeting the particulars laid out in the text.
Not only did New York incorporate a prohibition on general warrants in its actual ratification document, but the state declared that it was only with the understanding that new language would be added to take account of the right against promiscuous search and seizure, as well as others outlined in the ratification instrument, that it agreed to the new Constitution.619
Further underscoring its commitment to protecting individual liberty, New York included a clause that, with certain exceptions, required its military to remain within state borders until the matter had been settled.620 The threat was clear.621
Virginia and New York were battleground states. Had they not ratified the Constitution, the experiment would have failed.622 Approximately 3.9 million people lived in the country at the time. About one quarter of the population lived in the two states.623 A lack of their presence would have threatened geographic continuity. Both states evinced serious concerns about the new agreement. For Virginia, the hot button was individual rights. In New York, antifederalism dominated. In both discussions, the lack of protections against promiscuous search and seizure loomed large. The failure of the drafters to include a statement outlawing general warrants and laying out the particulars that would have to be met for the government to have access to citizens’ homes was an important issue.
Other states also insisted on the inclusion of a bill of rights within which general warrants played a role. In declaring the right against unreasonable search and seizure, Rhode Island adopted language in the body of its ratification document that was identical to that used by New York, substituting only the word “person” for “freeman.”624 Like New York, Rhode Island ratified the document on the condition that the Constitution would later be amended to take account of its concerns. Like New York, Rhode Island indicated that it would largely retain its militia within state borders until a federal declaration of rights had been enacted.625 Rhode Island’s ratification vote was the slimmest of any state. It passed 34–32.626
These arguments did not prevent Maryland from ratifying the Constitution, but they did lead to the state convention considering a series of amendments. Delegates supported the additional clauses. Although the Constitution passed, unamended, by a nearly six-to-one ratio, the convention voted to remand the amendments to Congress for inclusion in the Constitution.632 One of the relevant clauses read:
That all warrants without oath, or affirmation of a person conscientiously scrupulous of taking an oath, to search suspected places, or seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any person suspected, without naming or describing the place or person in special, are dangerous, and ought not to be granted.633
The notes of Maryland’s state convention underscored the importance of this provision:
This amendment was considered indispensable by many of the committee; for, Congress having the power of laying excises, (the horror of a free people,) by which our dwelling-houses, those castles considered so sacred by the English law, will be laid open to the insolence and oppression of office, there could be no constitutional check provided that would prove so effectual a safeguard to our citizens.634
The convention went on to recognize, “General warrants, too, the great engine by which power may destroy those individuals who resist usurpation, are also hereby forbidden to those magistrates who are to administer the general government.”635 Without amendments to the federal Constitution, the liberty and happiness of the people stood endangered.636
The subject was broached in other state conventions as well. In Massachusetts, Abraham Holmes, from Plymouth County, noted that the framers of the state constitution had taken “particular care to prevent” general warrants from being issued. He could not conceive “why it should be esteemed so much more safe to intrust Congress with the power of enacting laws, which it was deemed so unsafe to intrust our state legislature with.”637 Holmes voted against ratification.
It was not, as Professor Amar has much more recently argued, that the government could enter, search, and seize at will. It was that the government could not do so at all without a sufficiently particularized warrant. Bryan went on to critique the separation and balance of powers, suggesting that the problem with relying on structure alone was that there was “no declaration of personal rights, premised in most free constitutions.”644
Not everyone at the Founding wanted to include a bill of rights. Federalists, led by Alexander Hamilton (the only New Yorker to sign the Constitution), Wilson (a Scottish Pennsylvanian who had studied law under Dickinson), and James Iredell (from North Carolina), argued against the explicit inclusion of rights.645 These men were no less influenced by English experience.646 They simply took a different lesson from it. It was not that powers such as those encapsulated in general warrants ought to be allowed—it was that the structure had been designed to prevent the government from having the authority to issue such instruments in the first place.
In trying to convince his fellow New Yorkers to vote for the Constitution, Hamilton noted in Federalist 84 that the purpose of a bill of rights in English history was to form an agreement between the Crown and its subjects, abridging royal prerogative.647 Magna Carta, the Petition of Right crafted by Coke and assented to by Charles I, the Declaration of Right presented in 1688 to William of Orange—all of these had recognized the rights held by individuals as against the King. In America, however, there would be no monarch. Sovereignty resided in the people. It was therefore unnecessary to enact a bill of rights.
Iredell further explained during the North Carolina ratifying convention that unlike England, where no instrument could abridge the authority of Parliament, the United States had a written constitution which would act to constrain the federal government.648 “Of what use,” he asked, “can a bill of rights be in [the US] Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not?”649 And he went further, suggesting that a bill of rights would be not only unnecessary but also “absurd and dangerous.”650
Hamilton agreed. His rationale in Federalist 84 was that a bill of rights “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.”651 The national government was to be one of limited, enumerated authorities. By asserting a specific right, such as the right against unreasonable search and seizure, the assumption would shift to suggest that anything not listed as a right was not protected. Hamilton explained, “[W]hy declare that things shall not be done which there is no power to do?”652 For Hamilton, an enumeration of specific rights was meaningless. Rights must be understood in context, subject to popular demands. There was no point in establishing a right without a corresponding power. It was to the Constitution itself one should look for a bill of rights. The structure would protect rights.653
Wilson’s remarks proved prescient. It would be difficult to look at the doctrine that has since ensued without observing the tendency of courts to limit rights to those expressly declared or implied in the Bill of Rights. Nevertheless, the Federalist arguments did not override Anti-Federalist concerns about the growing power of the federal government.
Bryan, writing as Centinel, argued in response to Wilson’s speech that the Constitution had failed to recognize “that the people have a right to hold themselves, their houses, papers and possessions free from search or seizure.”656 Centinel continued:
therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or his property, not particularly described, are contrary to that right and ought not to be granted.657
To protect the right, a warrant would require particularity.
As explained by another Anti-Federalist writing as Brutus (likely Robert Yates),658 the issue was one of personal liberty. The purpose of entering into a political union was to protect individuals. In doing so, it was not necessary “that individuals should relinquish all their natural rights.”659 Of some of these, individuals could not be divested. Other rights were not necessary to give up to attain the object of government. They should be retained, for surrendering them “would counteract the very end of government, to wit, the common good.”660 The “Federal Farmer,” whose identity has not been established (although scholars point to Lee or Melancton Smith as the likely author),661 wrote two pamphlets analyzing and arguing against the Constitution. He shared Brutus’s concept of the rights at stake, noting, “There are other essential rights, which we have justly understood to be the rights of freemen; as freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men’s papers, property, and persons.”662
General warrants stood as the foremost example of the abridgement of individual liberty rights. Brutus explained, “For the security of liberty, it has been declared [t]hat all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.”666 This provision, he argued, was “as necessary under the general government as under that of the individual states; for the power” of the federal government “is as complete to the purpose of . . . granting search warrants, and seizing persons, papers, or property, in certain cases” as the authority of the states to do so.667
Although the Federalists had a strong argument—one that has, as an empirical matter, largely played out in the intervening centuries—it was the protection of the liberty interests at stake that ultimately won the day. There was little question following the state conventions that Congress would have to incorporate a bill of rights into the Constitution for the United States to survive. Six of the original thirteen states had recommended changes to the Constitution. Several had stated outright that this meant that the document would have to be amended to include a declaration of rights. Even in states that did not include an overt demand for a bill of rights in their final ratification decision, a vigorous debate about whether to institute one marked the public discourse.668 Of the rights articulated, one of the most important and consistent objections was the failure of the original Constitution to outlaw promiscuous search and seizure.
B. Adopting the Fourth Amendment
On September 28, 1789, the first session of the First Congress passed a resolution reflecting state concerns over the lack of a bill of rights:
The task of drafting the bill of rights fell to Madison, one of the principal architects of the Constitution.
Although Madison had objected to any constitutional amendments prior to ratification on the grounds that they would cause friction between the states and potentially contribute to a dissolution of the Union, by the time of the congressional resolution, he believed that amendments would “serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty.”670 In particular, he supported adding new measures to protect “the rights of conscience, the freedom of the press, trials by jury, [and] exemption from general warrants.”671
On May 4, 1789, Madison informed the House of Representatives that he intended to introduce amendments.672 Just over a month later, he made good on his promise, citing the debt owed to those who ratified the Constitution to secure “the liberty for which they valiantly fought and honorably bled.”673 He enjoined his colleagues to “expressly declare the great rights of mankind secured under [the] Constitution.”674 Madison presented a draft of what is now the Fourth Amendment:
A few observations about this initial language can be made.
First, the comma after “persons” separated the individual from objects related to them. There were thus dual rights at stake: security of the person and security of personal property. Supporting this interpretation is the establishment of “rights” in the plural. It was not just one right at stake, but two. In adopting this approach, Madison tracked the approach taken by Vermont, which had similarly separated out “themselves” from “their houses, papers, and possessions.”676
Second, the language generally followed the contours of the Massachusetts Constitution, which also began by establishing a right (albeit in the singular).677 In both, the clause protected against “all unreasonable searches and seizures” of one’s person, house, papers, and things (“property” for Madison, “possessions” for Adams).678 And both clauses required an oath or affirmation, as well as particularization regarding the place to be searched or persons or property to be seized.
Third, some scholars insist that Madison’s initial draft demonstrates that he was primarily concerned with prohibiting general warrants, and not necessarily with requiring warrants under all circumstances.679 The text does dwell on the particulars that would be required, rejecting warrants that failed to reflect “probable cause,” were not “supported by oath or affirmation,” or did not particularly describe “the places to be searched, or the persons or things to be seized.”680 This reading also is consistent with Madison’s concern, which he had previously voiced, that the Constitution had not included a ban against general warrants. He again raised this point when he introduced the amendments, citing the risk that the “General Government” might abuse its authority to collect revenue by issuing general warrants in support of the necessity of the new measures.681
Cutting against this interpretation, though, is the formulation itself: unlike Virginia’s statement in its Declaration of Rights, for instance, which clearly established that general warrants were “grievous and oppressive,” Madison’s draft of the Fourth Amendment started from the right itself.682 By leading with “unreasonable,” the clause invoked a broader prohibition against warrantless entry, as recognized in the common law.
For Madison, “the great object” common to the states “in making declarations in favor of particular rights” had been
to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.683
In addition to this alteration, the Committee removed the words “all unreasonable searches and seizures” apparently by mistake—or so Egbert Benson later claimed during the House debate, when the clauses were simply reinstated as “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches.”691
The Committee also put “secured” into the present tense (“secure”).692 It went on to agree to the balance of the clause, as well as Madison’s intent to insert the clause into Article I, § 9, as a limit on the legislature.693
It took nearly a month of steady pressure from Madison for Congress to consider the amendments as unanimously agreed to by the Committee.694 The House then met for two weeks to debate the report as a Committee of the Whole, and then to discuss the report of the Committee of the Whole as the House of Representatives.695
The House made four revisions to what would become the Fourth Amendment. In addition to Benson’s reinsertion of “unreasonable searches and seizures,” Gerry seemingly altered “by warrants issuing” to “no warrant shall issue.”696 This change largely clarified the language without broadening or narrowing the specified rights. Samuel Livermore continued Gerry’s addition, adding “and not” between “affirmation” and “particularly,” thus making the clause an independent declaration.697 The progressive nature of this change calls into question subsequent interpretations of the Fourth Amendment that suggest a disconnect between the warrant requirement and the prohibition against general warrants.
Finally, although Madison objected, Sherman moved to relocate the Bill of Rights to a separate appendix.698 He voiced concern that changes to the body of the Constitution could impact the state ratification agreements, which had been premised on the then-existing text.699 Sherman further suggested that by placing the material in the middle of the document and leaving the signatures from the Philadelphia Convention at the end, it implied that they had agreed to the amendments, which they had not.700
Although the Senate made changes to other amendments, the only alteration it made to the clause on search and seizure related to punctuation.703 The text returned to the House as the sixth amendment. The House apparently rejected the Benson Committee paragraph, but following a conference committee, the House withdrew its objections.704 Accordingly, on September 25, 1789, via a joint resolution of Congress, the federal government sent twelve amendments to the state legislatures.705 The sixth clause declared:
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.706
Notably, by retaining the word “place” in the singular and the clause “persons or things” in the plural, the drafters reflected a contemporary understanding of the illegitimacy of “multiple-specific search warrants.”707 Such instruments may meet the requirements that a particular person be named and that the charge be made under oath or affirmation and supported by probable cause, but numerous places could then be searched. Such instruments were considered invalid. They had been used by the Crown prior to the Revolution, but legal treatises developed at the time the Fourth Amendment was adopted repudiated the idea that multiple locations could be searched, impliedly restricting search to a specific location.708 Warrants allowing multiple houses to be searched were unreasonable, even if the multiple houses were specified. State legislation followed suit: by 1789, most states had adopted statutes that required specific warrants, limiting search to single locations.709
Madison’s wording is particular in another regard: although the right extends, in the first part of the Fourth Amendment, to the people to be secure in their (plural) “houses,” the warrant is limited to “particularly describing the place” to be searched.710 Unlike contemporary understandings, in which “place” can be understood in broad terms—at times synonymous with “space”711 —in 1789, it was understood as a “particular portion of space.”712 By adopting language that required a warrant “particularly describing” a “place,” Congress restricted such searches not just to a single home or warehouse but, potentially, to a smaller subsection of such a structure.713
The first two clauses never garnered sufficient votes from the states to become law.714 As a result, what had been the sixth amendment became the Fourth Amendment. On December 15, 1791, Virginia became the eleventh state to ratify the first ten amendments to the Constitution, making their addition official.715
Not long after the Fourth Amendment entered into law, a number of cases reiterated that the purpose of the Amendment was to protect individuals against general warrants, as well as warrants lacking sufficient particularity.716
“It appears to me,” Chief Justice William Tilghman stated, “that if this be the true construction, the provision in the constitution is a dead letter.”721 His rationale was straightforward: “[I]n every instance, the magistrate who issued the warrant, would say that he thought it a case of necessity.”722 The judge noted that by insisting on the particulars, felons may on occasion escape. “This must have been very well known to the framers of our constitution,” he surmised, “but they thought it better that the guilty should sometimes escape, than that every individual should be subject to vexation and oppression.”723
In 1825, William Rawle, the US district attorney for Pennsylvania, explained in his treatise on US constitutional law that “[t]he term unreasonable is used to indicate that the sanction of a legal warrant is to be obtained, before searches or seizures are made.”724
Courts in Connecticut took a similar stance. In Grumon v Raymond,725 a case involving a warrant that empowered the authorities to search every suspected house within the town of Wilton, the court said, “This is a general search-warrant, which has always been determined to be illegal, not only in cases of searching for stolen goods, but in all other cases.”726 In parallel, a case in New York affirmed that only particularity in a warrant would justify the breaking open of a suspect’s home.727
In 1868, Thomas Cooley, chief justice of the Michigan Supreme Court, reiterated the importance of the Fourth Amendment’s prohibition on using a warrant to obtain evidence of guilt.728 Further, he noted:
[F]ound also in many State constitutions, [the Fourth Amendment] 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.729
While it was true that, with a warrant, an officer following the writ’s command was protected from legal penalties, any deviation from the warrant itself—such as searching in places not named or seizing persons or articles not specified—placed the officer outside the protection of the law. In all other cases “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.”730
Congress similarly recognized the role of the Fourth Amendment, not once legislating against it. In 1789, for instance, it passed an act requiring customs officers to first approach a justice of the peace to obtain a warrant, demonstrate evidence under oath, and particularly describe the dwelling-house, store, building, or other place they would like to enter prior to conducting a search for goods subject to duty.731
The Supreme Court later articulated a broad understanding of the scope of the Fourth Amendment, extending its protection of “papers” to include not just private documents and correspondence but also one’s business records.732 While the 1886 case of Boyd v United States733 is commonly credited with being the first articulation of what became the “mere evidence” rule—and, at times, discounted as part of Lochner-era thinking734 —it was far from the first articulation of a canon that found its roots, like the prohibition against general warrants, in English law. Even a few cases help to illustrate the limits articulated by English courts on how far the Crown could go in obtaining private papers.
Perhaps the most famous example stems from what has come to be known as Purnell’s Case.735 During the reign of George II, two young Oxford students, Whitmore and Dawes, spoke “treasonable words in the street.”736 For this, they were sentenced to pay a fine, to undergo two years’ imprisonment, to provide security for their future behavior, “and to go round immediately to all the Courts in Westminster Hall, with a paper on their foreheads denoting their crime.”737 In addition, the government directed John Purnell, the vice-chancellor of Oxford, to impose academic punishment on the students.738 He appears not to have done so. As a consequence, the attorney general ex officio issued an information against him for failing to carry out his responsibilities.739 As part of the misdemeanor prosecution, at 9:00 p.m. on the final day of the term, the attorney general, without an affidavit, moved the court for a rule to require the university to open its records to the Crown, in order to furnish evidence against the vice-chancellor.740
The court, uneasy with the request, demanded that the attorney general show cause.741 Purnell, in turn, refused to supply the documents—a decision that the university supported on the grounds of “[n]emo tenetur seipsum accusare”: “The law will not tempt a man to make shipwreck of his conscience, in order to disculpate himself.”742 Further, “in no case has the Court ever interposed in a criminal prosecution to . . . force such inspection.”743 Chief Justice William Lee delivered the opinion of the King’s Bench, citing precedent in support of the proposition that the Crown could not compel an individual to incriminate himself.744
As part of his critique of general warrants, Almon too referenced the prohibition on obtaining individuals’ papers in order to develop evidence against an individual prior to any charge. How could the law of England countenance that, upon a general warrant,
any common fellows . . . upon their own imaginations, or the surmises of their acquaintance, or upon other worse and more dangerous intimations, may, with a strong hand, seize and carry off all his papers; and then at his trial produce these papers, thus taken by force from him, in evidence against himself[?]745
The problem, as in Purnell’s Case, was one of self-incrimination: “This would be making a man give evidence against and accuse himself, with a vengeance.”746 It was against the “ancient common law of the Land” to allow the government such access to one’s papers.747
The Supreme Court’s decision in Boyd hearkened back to the reasoning of the English cases, to colonial concerns regarding general warrants, and to Cooley’s comments noting the close relationship between the Fourth and Fifth Amendments. In Boyd, the Court struck down a statute that allowed for a court order compelling the production of a business invoice.748 Citing Chief Justice Pratt’s remarks in Entick, Justice Joseph Bradley, on behalf of seven justices, reasoned that the seizure of the papers in question amounted to a violation of the right against self-incrimination.749 Any such Fifth Amendment violation, in turn, could be understood as an “unreasonable search” under the Fourth Amendment.750 Whenever the claim to papers was based solely on their potential utility as evidence in a criminal proceeding, the search—and seizure—were presumptively unreasonable.751
The ruling—that the Fourth Amendment permitted searches and seizures only when the government had a superior claim of title to the items seized—became known as the “mere evidence rule.”752 The Court drew the line at the point at which a search for specific items became an effort to access or to generate information that could then be used to convict individuals of wrongdoing:
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.753
The rule mirrored the prohibition on general warrants: the government could neither rummage around in one’s personal documents nor comb through one’s business records to uncover evidence of criminal behavior. The principles laid out in Entick affected “the very essence of constitutional liberty and security,” Bradley wrote.754 “[T]hey apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life.”755 The Court continued:
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.756
The first clause of the Fourth Amendment did not narrowly serve as a prelude to the Warrant Clause. It carried its own weight, underscoring that individuals’ persons, papers, and effects were immune from government examination and interference.757
Thirty-five years later, the Supreme Court solidified the mere-evidence rule in Gouled v United States.758 The case challenged two types of searches. In the first, an Army intelligence officer, pretending to call on a government contractor, Felix Gouled, for social purposes, surreptitiously removed documents from Gouled’s office that were later used as evidence of conspiracy to defraud the government.759 In the second search, a US commissioner, based on the affidavit of an agent of the DOJ, approved a warrant stating that Gouled’s office contained property that had been used “as a means of committing a felony, to wit: . . . as a means for the bribery” of a government employee.760 The Court found each instrument to be a violation of the defendant’s Fourth Amendment right against unreasonable search and seizure, as well as his Fifth Amendment right against self-incrimination.761
In the first search,
if for a Government officer to obtain entrance to a man’s house or office by force or by an illegal threat or show of force, amounting to coercion . . . would be an unreasonable and therefore a prohibited search and seizure . . . it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth, instead of by force or coercion.762
In either instance, the security and privacy of the home or office, and of the papers of the owner, would be equally invaded.763 With regard to self-incrimination, the Court noted that whether an individual “be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers” mattered naught.764 “In either case,” the Court explained, “he is the unwilling source of the evidence,” which the Fifth Amendment forbids.765
In regard to the second search, since the time of the Founding, specific warrants could be used to obtain “stolen or forfeited property, . . . counterfeit coin, burglars’ tools and weapons, implements of gambling,” and the like.766 But they could not be used as a means of gaining access to the home “solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding.”767 The Court was at pains here to recognize the prohibition on general warrants that had marked the Founding. A general warrant, allowing the government to snoop around inside a home or office to potentially find evidence of wrongdoing, would not be allowed.
The mere-evidence rule proved unworkable in practice, not least because the distinction between evidence and the instrumentality of a crime was hard to maintain. The Supreme Court gradually chipped away at the edges. It excluded corporations.768 It expanded the definition of “instrumentalities” to include any property used in the course of criminal activity.769 And it determined that if individuals were legally required to maintain records, the government could search, seize, and admit the records as evidence during trial.770 In 1966, it sidestepped the rule altogether to find that a forced blood test did not run afoul of the Fifth Amendment, distinguishing between testimonial and physical evidence in the course of the opinion.771
The following year the Court explicitly repudiated the mere-evidence rule in Warden v Hayden,772 a case that centered on the search of a suspected bank robber’s home in the course of a hot pursuit.773 The Court found that neither the entry without a warrant to search for the suspect nor the immediate search of his person was invalid.774 “The permissible scope of the search,” the Court wrote, “must, [ ] at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.”775 It relied on the Schmerber v California776 test, eschewing the property-based approach of the Founders in favor of a regime centered on privacy.777 The Court noted that the Fourth Amendment “was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies.”778 The aim, the Court recognized, was to protect the sanctity of the home.779 The way the Fourth Amendment did this was by prohibiting all “unreasonable” searches and seizures, as well as by requiring particularity.780
Even as it reversed the mere-evidence articulation of Boyd, the Court recognized the underlying protections that the Court had been trying preserve in Boyd: the prohibition on general warrants at the heart of the Fourth Amendment.781
The understanding of the Fourth Amendment articulated by Amar and Taylor, which suggests that the home can be breached to search for evidence absent a warrant, fails to appreciate the context of the times. It was because of the sanctity of the home that warrantless entry, as well as the use of general warrants, was prohibited. The only time that the government could trespass on the privacies of life to conduct a search or seizure was either in the context of the arrest of a known felon or when a warrant with sufficient particularity issued. To the extent that this history has hitherto been lost, it is a loss, indeed, for our understanding of the original meaning of the Constitution.
Why, precisely, did the Founding generation reject general warrants? Are there common concerns among the arguments that Coke, Hale, and Blackstone articulated; that Otis raised in Paxton’s Case; and that animated the state prohibitions on general warrants, later coming to fruition in the Fourth Amendment? These are difficult questions. Even legislative histories of narrow clauses within statutes may prove impossible to reconstruct accurately. Like the Founding generation, those enacting such provisions may evince numerous concerns. Nevertheless, there are some concerns that recurred—across time and the Atlantic, throughout the colonies and the Founding of the country—that are worth noting.
Perhaps most importantly, that an Englishman’s home was his castle figured largely in English law and early American documents.782 The guarantee against general warrants and warrantless entry thus found root in the right of an individual to be secure against unwelcome intrusion.783
Outside of active pursuit of a felon, or a sufficiently high standard of suspicion of involvement in illegal activity supported by a warrant, individuals had the right to be secure within their own homes against government intrusion.
This approach encapsulated two deeper concerns. The first centered on what one should be forced to reveal to the government or to others.788 The home encircled family and friends. Within it, one built intimate relations, contemplated spiritual matters, and found solace.789 The ability to be unguarded created an opportunity for honesty, reflection, and growth. Almon addressed the “absolute illegality of the seizure of papers” on grounds of privacy.790 No gentleman in England would rest easy “in his bed, if he thought, that for every loose and unguarded, or supposed libelous expression . . . he was liable not only to be taken up himself, but every secret of his family made subject to the inspection of a whole Secretary of State’s Office.”791 Almon’s concerns included giving the Crown access to private affairs. “Many gentlemen have secret correspondences, which they keep from their wives, their relations, and their bosom friends,” he explained.792 “Every body has some private papers, that he would not on any account have revealed.”793
Business records did not remove the privacy implications of the government gaining access to individuals’ private lives:
A lawyer hath frequently the papers and securities of his clients; a merchant or agent, of his correspondents. What then, can be more excruciating torture, than to have the lowest of mankind, such fellows as Mooney, Watson, and the rest of them, enter suddenly into his house, and forcibly carry away his scrutores, with all of his papers of every kind, under a pretence of law, because the Attorney general had, ex officio, filed an information against the author, printer and publisher of some pamphlet or weekly paper, and somebody had told one of these greyhounds that this gentleman was thought by some people to be the author!794
An Englishman’s castle, therefore, could be breached only with due process of the law. Absent legal constraints, it made no sense to speak of individual liberty. One was inherently not free if the government could, at any time without specific cause, enter into one’s home, seize one’s person, examine one’s papers, or take one’s property away. “Such a vexatious authority in the crown, is inconsistent with every idea of liberty.”795
Nor was society free if all of one’s associates could thereby be implicated. Accordingly, Almon argued that papers seized by the government “are immediately to be thrown into the hands of some clerks, of much curiosity . . . who will . . . naturally amuse themselves with the perusal of all private letters, memorandums, secrets and intrigues, of the gentleman himself, and of all his friends and acquaintances of both sexes.”796 Wilkes’s patron, Lord Grenville-Temple, similarly expressed alarm that the momentum of the disclosure went beyond the individual whose papers were seized, to all those with whom the person was in correspondence.797
The second concern underlying the assertion that a man’s home was his castle was the potential harm that could result—as a personal matter and as a broader structural point—from giving the government untrammeled access.798
Rather than having information indicating that the individual to be searched or seized was engaged in illegal activity, evidence of which justified breaching the right to be secure in one’s home, general warrants violated the right in order to uncover evidence.799 In doing so, the instrument turned the concept of innocent until proven guilty on its head.800 Guilt was presumed, with innocence established only after a search.801
The central point made by eighteenth-century contemporaries was that by inverting the principle, the government could target people without any evidence of criminal activity. Such power was vulnerable to abuse.802 The government could use the instrument against citizens to prevent political opposition, to consolidate economic or political control, or to stifle ideas contrary to those held by government officials.803
That some of the information obtained might, in itself, be innocent mattered naught. Eighteenth-century arguments recognized the potential for broad powers of search to combine information from different sources to build a case against individuals the government did not like.804 The risk was that otherwise-innocent activity, combined with other information, might look very different. This information then could be used to cast aspersions, potentially to the point of persons being found guilty of criminal acts in which they did not engage. In Britain, parliamentarians considered powers of search in this way to be even more concerning than powers of arrest:
Other information obtained in the course of executing a general warrant had the potential to embarrass the person to whom the information pertained. In 1721, Sergeant Hawkins explained that general warrants may prove “highly prejudicial to the Reputation as well as the Liberty of the Party.”806 This concern again arose in Parliament in 1765, when one member noted that
even a particular warrant to seize seditious papers alone, without mentioning the titles of them, may prove highly detrimental, since in that case all a man’s papers must be indiscriminately examined, and such examination may bring things to light which it may not concern the public to know, and which yet it may prove highly detrimental to the owners to have made public.807
American legal scholars later agreed with Parliament that “even when conducted in the discreetest [sic] manner,” the execution of a general warrant “might injure the most virtuous in their reputation and fortune.”808 While, alone, it may not suffice to create a right to seize innocent people, such an instrument could nevertheless “throw in the way of messengers a temptation to inquire into the life and character of persons.”809
Beyond the collection of private or embarrassing information, giving the government insight into one’s private affairs raised the potential that information obtained could be used as leverage. It could be made public to defame political adversaries. Even without criminal penalties, it could harm an individual’s reputation and standing in the community. The Founders sought to protect against information being misused in this way.
As a structural matter, the consolidation of such power in one place caused even greater alarm. The Founders embraced the concern expressed in Leach that the ability to use general warrants as a way around the restrictions on search and seizure could “be productive of great oppression.”810 Chief Justice Pratt similarly stated in Wilkes that “a discretionary power given to [officers] to search wherever their suspicions may chance to fall . . . is totally subversive to the liberty of the subject.”811
The Father of Candor, in turn, warned that to allow general warrants in any case might “amuse the public with the sound of liberty,” while in reality allowing them to enjoy none.812 “If such warrants were to be allowed legally justifiable in any instances, it would be exceedingly difficult, nay, impossible, to restrain Ministers from grievously oppressing any man they did not like, under many pretences, from time to time . . . without any motive of public good.”813 The liberty of the subject was at stake.814 Each step, however small, mattered. He explained, “Tyranny grows by degrees.”815
Otis used the case of the customs officer attempting to exact revenge as an illustration of the potential for such powers to be misused.816 Dickinson’s Letters of a Pennsylvania Farmer similarly denounced the writs as being vulnerable to arbitrary use.817
Following the Founding, the state constitutional conventions, as well as the ratification debates, similarly recognized the danger posed by promiscuous search and seizure. Henry railed against the arbitrary way in which the government could search and seize an individual’s private papers.818 One of the first state courts to confront general warrants following the adoption of the Bill of Rights stated that general warrants “would open a door for the gratification of the most malignant passions, if such process issued by a magistrate should screen him from damages.”819 Others echoed Parliament’s concern that general warrants “throw in the way of messengers a temptation to inquire into the life and character of persons.”820
It was not that the country did not face great dangers from within and without: in 1787, the future of the country hung in the balance. During the Constitutional Convention, Oliver Ellsworth insisted that creation of a new federal structure was essential to national security.821 Soon afterward, Hamilton explained:
The principal purposes to be answered by Union are these—The common defence of the members—the preservation of the public peace as well against internal convulsions as external attacks—the regulation of commerce with other nations and between the States—the superintendence of our intercourse, political and commercial, with foreign countries.822
To address these needs, Hamilton wrote, military capabilities must be made available to the national government: “The authorities essential to the common defence are these—to raise armies—to build and equip fleets—to prescribe rules for the government of both—to direct their operations—to provide for their support.”823 He advocated these powers, “[b]ecause it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them.”824
Yet even with this understanding—that the country was under threat, and that to face these threats, the national government must be given broad military powers—the Founding generation did not provide the legislature with the authority to use general warrants for national security or the common defense.825
Part of the reason for this stemmed, perhaps, from history. The English Crown had appealed to necessity in justification of expanding its use of general warrants. Almon explained,
The greatest part [ ] of the warrants offered in proof of [promiscuous search and seizure] were issued in the times of rebellion; when men are not likely to call in question such a proceeding, the extremity of the case making them wink at all irregularities, for the sake of supporting the protestant establishment itself. And yet, bad men, as one may easily figure to one self, will be apt to lay stress upon such acts of necessity, as precedents for their doing the like in ordinary cases, and to gratify personal pique, and therefore such excesses of power are dangerous in example, and should never be excused.826
Accordingly, the Founders did not allow the government to intrude upon the sanctity of the home without sufficient cause. They did not create special exceptions for libel, treason, or either specific or general threats to the state. Nor did they endorse any exceptions for customs.827 To the contrary, state after state refused to ratify the Constitution until extracting a guarantee that further provisions would be added, including those prohibiting general warrants and requiring certain particulars before any specific warrant could issue.828
That initially the Fourth Amendment was to be placed in Article I, § 9 underscores the Founders’ intent to restrict Congress from being able to abridge the people’s right to be secure in their homes from unwanted government intrusion. When the First Congress moved the clause that now forms the Fourth Amendment to an appendix, it was because it did not make sense to insert it into the main body, to which the members of the Convention had previously affixed their signatures. As a substantive matter, all agreed that what is now the Fourth Amendment would limit the legislature, as well as be an additional protection to ensure that the executive would not—because it could not—interfere with individuals’ private homes and lives.829
The Founders’ concern went beyond the amassing of tyrannical power in one place to the impact such an accumulation of power would have on the separation of powers. General warrants gave power to the executive branch, without constraint on how the power could be used. General warrants amounted to the proverbial fox guarding the hen house.830
Legal doctrine had long recognized the inherent conflict of interest. Nemo iudex in causa sua: no one ought to be a judge in his own cause.831 In the interests of fairness and justice, one of the central principles of common law was to minimize the risk of partiality: anyone with a stake in the outcome risked making a decision in their own favor. Thus it was in Dr. Bonham’s Case that Coke stated that a college of physicians given the authority, under statute, to punish those who practiced medicine without a license could not simultaneously act as “judges, ministers, and parties.”832 Hawkins also highlighted the danger of general warrants, in that they provided the officer with the full authority to determine whom and where to search and what to seize.833 For the same reason, Hale condemned any information filed by the attorney general ex officio, without even an oath, allegedly stating of the legal sufficiency of such instruments that “[i]f ever they came in dispute, they could not stand, but must necessarily fall to the ground.”834 Lord Mansfield underscored the point in Leach, recognizing that general warrants violated the common law, not least because officers should not have the discretion to set the boundaries of their own authority.835
The Founding generation agreed with their brethren’s concerns. The Father of Candor condemned Henry VII as “one of the worst Princes” England ever knew, not least for giving officers of the state the authority “to summon, try and punish, of their own mere discretion and authority, any persons who shall be accused of the offences therein very generally named and described.”836 He decried the potential for the attorney general to issue an information upon his own authority, underscoring the potential costs borne by individuals who should fall under his gaze:
It is a power that is, in my apprehension, very alarming; and a thinking man cannot refrain from surprise, that a free people should suffer so odious a prerogative to exist. It has been, and may most certainly be again, the means of great persecution. In truth, it seems to be a power necessary for no good purpose, and capable of being put to a very bad one.837
Judges in Pennsylvania and Virginia attacked the writs issued under the Townshend Act of 1767 on the same grounds, stating that officers should not be given the authority to exercise their own discretion.838 Justice William Henry Drayton, a Charleston judge, and Henry, from Virginia, both repeatedly opposed allowing officers to exercise discretion in search and arrest decisions.839
The principle became intimately connected with the Fourth Amendment. It provided context for the text. As one mid-twentieth-century scholar explained after reading the text of the Fourth Amendment to the Massachusetts Historical Society, “No public officer, therefore, in this country, can be supplied with a general warrant for use on occasion, he to be the judge of the occasion. About that there can hardly be a question.”840
The Founders’ fundamental insight was that the executive branch could not be impartial when its interests were involved.841 Therefore, it was restrained from entering the home at will, absent emergency circumstances surrounding the commission of a felony. The only way it could enter was under a warrant issued by the judiciary. If citizens were to give the executive branch the freedom to set the limits of its own authority, the risk that it would claim ever more power for itself was significant. A warrant lacking specificity gave the government the ability to determine whom to target, where to look, and what to seize.842 The implication reached beyond the relationship between the federal government and individual citizens: it threatened the relationship between the branches as well, with structural implications.843 The executive could use the power to overcome carefully thought-out checks and balances.844
There was another way in which general warrants altered the powers of the judiciary: it was not just the potential use or misuse of the information vis-à-vis the legislature or the courts, but the fact that the judiciary had been cleaved away from the process. It was the duty of magistrates and judges to determine whether sufficient cause had been demonstrated to waive rights otherwise held by the citizens. In his Commentaries on the Laws of England, Blackstone raised this point: “[I]t is the duty of the magistrate, and ought not be left to the officer, to judge of the ground of suspicion.”845 Henry similarly inveighed that by inserting the judiciary into the process, evidence and reason could play a role in mitigating the “strong hand of power.”846 By removing judges from these determinations, their power, their authority, was reduced.
A parallel concern centered on the impact of general warrants on federalism. State and local governments, no less than individual citizens or the other branches of government, could find their role—and their ability to provide a check on the executive—undermined by the accumulation of information. Henry and others raised this concern, as federal power expanded in the new Constitution. The Founders were further concerned about turning law enforcement into spies, and about the impact that this would have on the social and cultural structures of the representative regime.
Members of the Founding generation saw themselves as entitled to their rights as Englishmen. Among these was the right to be secure in one’s home. To protect this right, outside of limited conditions, the Crown was prevented from entering without a warrant. Efforts to grant the King’s officers broader access generated friction between English subjects and the Crown. Treatises, such as Coke’s Institutes, Hale’s History of the Pleas of the Crown, and Sergeant Hawkins’s Pleas of the Crown, condemned the practice and laid the groundwork for jurists’ condemnation of general warrants. By 1768, the Court of Common Pleas, the Court of the King’s Bench, members of Parliament, and the public had come to reject the granting of general warrants as an exercise of tyrannical power. As Chief Justice Pratt explained, “To enter a man’s house 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.”847
The Framers studied English legal thought and shared jurists’ rejection of general warrants. If anything, they were even more hostile to government interference than their countrymen overseas. During the French and Indian War, the Crown’s use of writs of assistance contributed to growing tension between the colonies and Great Britain.848 Paxton’s Case became an exercise in line drawing, as Otis roundly rejected the use of the instruments.849
Upon independence, many of the new states included a constitutional prohibition on promiscuous search and seizure.850 The purpose was to codify the common-law understanding of the conditions under which the government could enter the home.851 That it had been the common law that had limited the ability of the Crown to intrude without a specific warrant mattered. Since the early seventeenth century, jurists had recognized that the monarch lacked the authority to alter common law or statutory provisions.852 Precisely how far Parliament could go in authorizing broader search authorities, however, was less certain. The Framers sought to ensure that the common-law understanding did not become subsumed by the American adaptation.
In his formidable recitation of the history of the Fourth Amendment, Professor Cuddihy emphasizes the importance of the Founders’ actions in adopting the Fourth Amendment.853 He considers the decision to be a significant departure from English experience.854 The intended placement of the clause in Article I, § 9 reflects this claim. The challenge to the prohibition on promiscuous search and seizure would come not from the executive, which had no independent authority to breach the walls of the home, but from the legislature, which might seek to do so in carrying into effect its other powers. The Fourth Amendment cemented a particularized warrant requirement into the law.
Some scholars may not feel that fidelity to the original meaning of the Constitution, or to the text introduced by the Founders, matters.855 The initial meaning, it could be argued, is no longer relevant. More persuasive and important are the ways in which Supreme Court doctrine has adapted the application of the Fourth Amendment to a changing context. There are a number of difficulties with this approach, each deserving of a fuller discussion than can be done in a conclusion. For now, a brief discussion will suffice.
First, living constitutionalism allows for the application of new rules of construction. But however incremental such changes might be, surely they cannot mean that the protections created at the Founding cease to exist or—even more unlikely—that the language of the Fourth Amendment means the opposite of what it meant when it was enacted.
Second, a living constitutionalist approach to the Fourth Amendment that allows for general search and seizure absent a warrant fails to appreciate the strength of the arguments on which the Founders relied. The rationale for rejecting general warrants related to the individual right in question, as well as to potential harms to the constitutional structure. The reasons for the Founders’ concerns have not dissipated. They remain as relevant, if not more so, today.
Third, and relatedly, as illustrated in the Federalist–Anti-Federalist debate over the insertion of the Bill of Rights, one of the Founders’ principal concerns was that by naming specific rights, other rights would not be guaranteed going forward. Wherever one stood on the question, the understanding was that, at a minimum, the rights articulated in the amendments would be protected. They thus represent a baseline, a de minimis level, for rights moving forward.856
Fourth, the prohibition on promiscuous search and seizure derived from common law. At least some common-law rules could be altered by statute—certainly, the history of general warrants demonstrates that the Crown attempted to do this with some regularity, starting with the Tudors. By inserting a prohibition on the same into the Constitution—particularly in Article I, § 9, as a limit on the legislature—the Founders sought to ensure that no further encroachments could occur.
The Court, over time, has struggled with how to understand the Fourth Amendment and the relationship between its two clauses.857 Nevertheless, it appears to be moving away from the proposition that the Fourth Amendment does not embody a warrant requirement, and to be recognizing that the presence or absence of a warrant is central to understanding whether a search is reasonable. In the 2013 case Florida v Jardines,858 Justice Scalia, writing for the Court, concluded that whether or not the police first obtained a warrant before taking a police dog trained to identify narcotics inside the curtilage of the home went directly to the question whether the search in question was reasonable.859 That same year, in Missouri v McNeely,860 Justice Sonia Sotomayor, joined by a number of her colleagues, considered the absence of a warrant to obtain a blood test to be essential to answering whether a search was reasonable.861 Similarly, in 2014 in Riley v California,862 the Court considered the absence of a warrant to be relevant in ascertaining the reasonableness of the search.863 The Court did note that “the exigencies of” a situation may bring a warrantless search within constitutional bounds, but this exception was no different than that which the Founding generation recognized as part of their common-law legacy.864
Scholars’ contrary insistence that the Fourth Amendment does not entail a general protection against government entry into the home does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met by the government before it may intrude on one’s person, home, papers, and effects. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment.