CHAPTER FIVE

Origins of the Fourth Amendment*

“No question can be made with us, but that the Acts of the Legislative body, contrary to the true intent and meaning of the Constitution, ought to be absolutely null and void.”

James Kent, Professor of Law, Columbia University,

Later Chief Justice, New York Supreme Court, in a Lecture on law, 17941

The Fourth Amendment prohibits the use of general warrants in the United

States. The history on this point is incontrovertible.2 The War of Independence was fought in part because of the Crown’s effort to exercise writs of assistance, a form of general warrant wherein government officials failed to specify the precise place or person to be searched, or to provide evidence, under oath, to a third party magistrate, of a particular crime suspected. In the

*Special thanks to Ellen Noble and Morgan Stoddard for their research assistance. Dan Ernst, Erin Kidwell, Jim Oldham, Brad Snyder, and Bill Treanor provided thoughtful comments on an earlier version of the chapter, and Ladislas Orsy kindly helped to verify the meaning of the original Latin texts. My appreciation also extends to Randy Barnett and Larry Solum, for including me in the intellectual life of the Georgetown Center for the Constitution. It has had a formative impact on my scholarship. 1 James Kent, Introductory Lecture to a Course of Law Lectures, New York, 1794, http://oll.libertyfund.org/titles/2068. 2 Some scholars have erroneously asserted that the Fourth Amendment does “not require warrants, probable cause, or exclusion of evidence, but they do require that all searches and seizures be reasonable.” Akhil Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757 (1994). Amar misses a critical aspect of the Fourth Amendment, which is that it was designed precisely to prevent issuance of general warrants and to require warrants with sufficient particularity. Amar rightly notes that under some circumstances, such as hot pursuit, or the hue and cry, searches pursuant to arrest could be carried out absent a warrant. Id., at 764. But he is mistaken that “The common law search warrants referred to in the Warrant Clause were solely for stolen goods.” Id., at 765. His lack of reliance on primary sources similarly leads him to read the 1789 statutory authorization for warrants to search ships, houses, stores, and buildings improperly. He notes that the related statutes allowed customs officers to obtain a warrant and concludes that because they could obtain a warrant, it did not mean that they had to. Id., at 766. But this is precisely the opposite of how the statutes were viewed at the time and how the courts interpreted the provisions. See discussion, infra. For more accurate discussions of the origins of the Fourth Amendment see WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791 (2010), and Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICHIGAN L. REV., 547, 565, fns. 21 -25 (2000). But note that even these are not without error. Cuddihy, for instance, cites Hale as referencing Coke in support of the claim that general warrants are contrary to the British Constitution. Hale, however, references Crompton, not Coke, in support of this claim—and, notably, is mistaken in doing so, as the clauses cited in Crompton actually support the use of general warrants. Compare SIR MATTHEW HALE, PLEAS OF THE CROWN: A METHODICAL SUMMARY (1678), p. 93, citing to “C. Jur. Courts, p. 177”; RICHARD CROMPTON, L’AUTHORITIE ET JURISDICTION DES COURTS DE LA MAJESTIE DE LA ROYNE (1594), p. 177; and CUDDIHY [INSERT CITE].

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shadow of the French and Indian War, the British government had begun to make ever-greater use of the writs, sowing the seeds of revolution.

James Otis’s fiery oration in Boston against the instruments became a rallying cry for the colonists. “Then and there,” John Adams, who was present at the time, wrote, “was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independence was born.”3

In rejecting general warrants, the Founders were heavily influenced by English history and political thought. For centuries, some of the keenest legal minds had rejected promiscuous search and seizure as a violation of the British Constitution. General warrants were regarded as the worst exercise of tyrannical power. In the early 17th Century, Lord Coke had attributed the denial of promiscuous search and seizure authorities to Magna Carta—the great charter, and the font of liberty. Pivotal cases across the Atlantic immediately prior to the founding, and avidly followed by the colonists, reinforced the principle that general warrants were not to be tolerated in a free society.

State declarations of rights and constitutions at the Founding uniformly rejected general warrants as a violation of individual rights. When it came time to sign the Constitution, it was only with the understanding that new language would be added, encapsulating a ban against promiscuous search and seizure, that some of the most important states to join the Union agreed to the terms of the framing.

For early Americans, the only way that the government could intrude on the sanctity of one’s home, violating the privacy of individuals in their own sphere and in their social relationships, was by presenting evidence, under oath, to a magistrate, of a crime committed, and for the court to issue a warrant under its own seal, particularly describing the place to be searched, and the individual on whom the warrant would be served.

The debates and discussions surrounding the right to be secure against unreasonable search

3 Letter from John Adams to William Tudor, Mar. 29, 1817. LbC, Adams papers.

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and seizure are notable by what they did not include. They did not include exceptions for treason or threats to the government. They did not allow for suspensions or violations for foreign intelligence purposes or for collection of customs or revenues. It was any judicially-sanctioned governmental intrusion in one’s private sphere that the Framers sought to regulate and to confine within narrow bounds.

It is thus not without some surprise that general warrants have returned with a vengeance. It would be difficult to imagine a better example of a general warrant, than the one order, issued by the Foreign Intelligence Surveillance Court, that authorizes the collection of international Internet and telephone content. The order names approximately 90,000 targets, in the process monitoring millions of Americans’ communications. There is no prior suspicion of any wrongdoing, and any illegal behavior uncovered can then be prosecuted in a court of law.

The program is so massive that the government openly acknowledges that it is impossible to state the number of citizens whose email, telephone, and visual communications or private documents are being monitored.4 The program is embedded in the most secret corners of government. Information obtained may be used to focus other surveillance authorities on individuals identified in the collection, as well as to bring criminal charges against them. It may be kept and shared with the military, with other agencies, and with foreign governments. The database constructed from this information may be queried using citizens’ information, and it may be accessed for criminal law purposes utterly unrelated to foreign intelligence.

If ever there were an end run around the Fourth Amendment, and a violation of the prohibition against general warrants, it is the way in which programmatic collection is being conducted under section 702. As was discussed in detail in chapters two and three, it is not the only broad collection program underway.

On May 24, 2006, the Foreign Intelligence Surveillance Court approved an FBI application for an order requiring Verizon to turn over all telephony metadata to the National Security

4 See, e.g., PCLOB Report.

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Agency.5 The Court approved similar applications for all major U.S. telecommunication service providers. Over the next decade, FISC issued orders renewing the bulk collection program forty- one times.6 Almost all of the information obtained related to the activities of law-abiding persons who were not the subjects of any investigation.7

FISC has acknowledged that the vast majority of the call-detail records provided relate to communications not just between the United States and overseas, but “wholly within the United

States, including local telephone calls.”8 There is no particularized showing prior to the collection of this telephone data. There is no evidence of any criminal activity. And there is no limit on the number of people whose information is being collected.

These programs herald a new approach to foreign intelligence collection. They are patently unconstitutional. Traditionally, the foreign affairs component of intelligence collection was institutionally and geographically separate from the realm of criminal justice. It was foreign countries and their citizens, or U.S. citizens physically located overseas, who were subject to electronic surveillance. Since 1978, the government has had to demonstrate probable cause that citizens located ithin the United States are foreign powers or agents of foreign powers, and probable cause that the targets are going to be used the facilities to be placed under surveillance.

These restrictions do not apply to the collections currently underway.

5 In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things from [Telecommunications Providers] Relating to [REDACTED], Order, No. BR 0605 (FISA Ct. May 24, 2006), available at https://www.eff.org/sites/default/files/filenode/docket_06-05_1dec201_redacted.ex_-_ocr_0.pdf, [http://perma.cc/MT9D-4W2Y] (released by court order as part of the Electronic Frontier Foundation’s Freedom of Information Act (FOIA) litigation). Note that the specific telecommunications companies from which such records were sought were redacted, as well as the remaining title; the government, however, also released an NSA report that provided more detail on the title of the Order. OFFICE OF THE INSPECTOR GEN., NAT’L SEC. AGENCY, ST-06-0018, ASSESSMENT OF MANAGEMENT CONTROLS FOR IMPLEMENTING THE FOREIGN INTELLIGENCE SURVEILLANCE COURT ORDER: TELEPHONY BUSINESS RECORDS (see page 94 of 1846 and 1862 Production), available at http://www.dni.gov/files/documents/section/pub_Feb%2012%202009%20Memorandum%20of%20US.pdf, [http://perma.cc/YXA7-PTT4]. For purposes of a more precise citation, I draw from both sources. 6 ADMINISTRATION WHITE PAPER: BULK COLLECTION OF TELEPHONY METADATA UNDER SECTION 215 OF THE USA PATRIOT ACT 2 (Aug. 9, 2013), available at https://www.documentcloud.org/documents/750211-administration-white- paper-section-215.html, [http://perma.cc/V7VM-5MAU] [hereinafter SECTION 215 WHITE PAPER]. 7 In re Prod. of Tangible Things From [REDACTED], No. BR 08-13, at 12 (FISA Ct. Mar. 2, 2009), available at http://www.dni.gov/files/documents/section/pub_March%202%202009%20Order%20from%20FISC.pdf, [http://perma.cc/5LYL-RKAZ]. 8 Id. at 2 n.1.

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The programs are emblematic of a seismic shift that is occuring. We are witnessing a convergence, and one with deeply disturbing long term implications. National security and criminal law are becoming comingled, to the point where the protections that previously guarded individual rights, protected against governmental overreach, and ensured a separation of powers, are being severely weakened. Two phenomena have played a key role: the expansion of federal power and the intentional breakdown of institutional boundaries, in parallel with rapidly- advancing technologies. These changes have flooded the landscape, carving out new domains and creating the world in which we now find ourselves.

The current state of affairs is deeply divergent from the original intent of the framers and the meaning of the Fourth Amendment. Even if one adopts a living constitutionalist approach, surely the clauses of the Constitution that were meant explicitly to constrain government overreach by preventing issuance of a general warrant should not be read to provide support for the opposite articulation. To read the Fourth Amendment as such is to have no fidelity whatsoever to the text.

To understand why this is the case, we must first turn to 18th century England, where legal scholars, judges, and Parliamentarians rejected the use of general warrants. Three judicial rulings on the matter deeply influenced the Founding generation, which saw itself as entitled to the rights held by Englishmen. It was when Britain attempted to use general warrants against the colonists that James Otis famously stood and, in his oration, fired the first shot of the Revolution. The state constitutions and declarations of rights that followed roundly rejected promiscuous search and seizure, even as the ratification debates hinged on state demands that the Fourth Amendment, rejecting general warrants, be included in the Constitution.

Three Influential Cases in English Law

Three cases in English law laid the groundwork for the Founders’ rejection of general warrants: Entick v. Carrington in 1765, Wilkes v. Wood in 1763, and Leach v. Money in 1765.

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The stories behind the cases illustrate judicial and public opinions on the validity of such instruments in Britain. They also underscore why general warrants were a bad idea.

In 1755 the seeds of the first controversy were sown. John Entick, self-styled Reverend and some time 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. 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.”9 The rebellious nature of the enterprise could hardly be ignored. The founders’ aim was nothing less than “to awaken 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.”10

Such was the derision with which the paper treated the political élite that on November 6,

1762, the Second Earl of Halifax, George Montague-Dunk, Member of the King’s Privy Council and newly appointed Secretary of State for the Northern Department, launched a campaign against it. The warrant that Halifax signed on that day decried The Monitor’s “gross and scandalous reflections and invectives upon his majesty’s government, and upon both houses of parliament,” naming John Entick as the individual responsible.11 Halifax directed King George

III’s messengers to obtain and deliver Entick’s person and papers to him.12

Five days later, the King’s Chief Messenger, Nathan Carrington, and three messengers in ordinary, executed the warrant. At 11 o’clock in the morning, under cloudy skies, the king’s

9 THE MONITOR, VOL. 1, The Dedication, (J. Scott, et al., eds., 1760), available at https://books.google.com/books?id=IcTAYz62LO0C&printsec=frontcover#v=onepage&q&f=false. 10 Id. 11 The Case of Seizure of Papers, being an Action of Trespass by John Entick, Clerk, against Nathan Carrington and three other Messengers in ordinary to the King, Court of Common-Pleas, Mich. Term, 6 GEORGE III. (1765) in A COMPLETE COLLECTION OF STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND OTHER CRIMES AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE YEAR 1783, 1031 (Thomas Jones Howell, et al., eds., 1816) [hereinafter Entick v. Carrington]. 12 Id.

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messengers opened Entick’s front door and entered his home. For the next four hours they restrained him as they searched, using “force and arms” to accomplish their purpose.13 Outraged at the intrusion, Entick brought 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.14

Charles Pratt, Chief Justice of the Common Pleas, (and, from 1765, Lord Camden), presided over the trial. In ruling against Lord Halifax and for Entick, Pratt observed that “The great end, for which men enter[]into society, [is] to secure their property.”15 Under English law, “every invasion of private property, be it ever so minute, is a trespass.”16 By this, Pratt did not mean merely physical intrusion of the home. “Papers are the owner’s goods and chattels: they are his dearest property; and are so far from enduring a seizure that they will hardly bear an inspection.”17

Chief Justice 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, noting that in the latter instance, there must first be a full charge, upon oath, of theft committed.

A warrant must be executed in the presence of an officer of the law. Where a private person might suspect criminal activity, such suspicion would have to be provided to a constable, who must then determine the reasonableness of the grounds for suspecting criminal activity.

Seditious libel was a misdemeanor. It was tried in the Court of Common Pleas, or the Court of King’s Bench, in Westminster Hall—not at the Old Bailey, which was the site for felony trials.

Nevertheless, the contrast between the standards adopted in criminal matters and the present matters before the court, were striking. In the case at hand, nothing had been described, nor the target of the search distinguished, “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

13 Id. at 1032 14 Id. 15 Entick v. Carrington, supra note 3, at 1066. 16 Id. 17 Id.

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behalf the officer’s misbehavior.”18 General searches as that to which Entick had been subject raised the spectre of the Star Chamber. They had been emphatically rejected in its aftermath.

Even to prevent the most serious crimes, such searches were not allowed. Chief Justice Pratt surmised, “such a power would be more pernicious to the innocent than useful to the public.”19

Entick v. Carrington 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 find the printer of Wilkes’ 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.

John Wilkes, an English politician of plebian roots, found expression in his pen. In 1762, after placing a handful of essays in The Monitor, Wilkes helped to start a political weekly to counter the Briton, a pro-government publication, naming its counterpoise the North Briton. The paper dedicated much of its space to lampooning George III’s Scottish favorite, John Stuart, 3rd

Earl of Bute. As beloved tutor to the Prince of Wales, George III’s accession to the throne in

1760 immediately improved Bute’s circumstances. In May 1762, Bute became First Lord of the

Treasury and Leader of the House of Lords. He entered into complex negotiations with the

French, bringing the Seven Years’ War to conclusion. November of that year saw the preliminaries signed in Fontainebleau.

The North Briton and others vehemently attacked the terms of peace. Upon first hearing of the agreement, the political journal inveighed, “Almost every thing won from the French by the wisdom or valour of a Whig administration, these vipers, bred and nourished in the bosom of our country, sacrificed to France from a lust of power, and the interested views of their faction, ever

18 Id. at 1067. 19 Id. at 1073.

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propitious and favourable to the designs of the ancient enemy of this kingdom.”20 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. 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.” 21

Wilkes suggested, “Almost all the glorious advantages we had gained over our most restless and perfidious foe, our ministers have given away; and in consequence of this weakness, or of this treachery, the trade and commerce of France will soon be in a more flourishing state than in the most prosperous times since their monarchy began, and our’s [sic.] in the same proportion will decline.”22 More lamentably, “The 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.”23

Despite political opposition, the Treaty of Paris passed the House of Lords and the House of

Commons by decisive majorities. But political hostility against Bute continued, forcing his resignation as prime minister in April 1763.

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.”24 Wilkes pilloried Grenville for sanctioning the treaty, which had “saved England from

20 North Briton No. 25, Nov. 20, 1762 reprinted in NORTH BRITON 137 (John Wilkes ed., 1764), available at, http://books.google.com/books?id=xr8BAAAAYAAJ&printsec=frontcover#v=onepage&q&f=false. 21 North Briton No. 28, Dec. 11, 1762 reprinted in NORTH BRITON, supra note 7, at 154. 22 Id. at 156. 23 Id. 24 North Briton, No. 45, Apr. 23, 1763 reprinted in NORTH BRITON, supra note 7, at 261.

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the certain ruin of success.”25 According to Wilkes, the agreement had sacrificed any immediate advantages of trade or territory to England’s “inveterate enemies.”26 He lamented seeing the crown “sunk even to prostitution.”27 This time, Wilkes had gone too far.

Three days after North Briton No. 45 issued, Lord Halifax signed a general warrant, directing the same Nathan Carrington that had executed the warrant against John Entick, and three messengers, “to make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper, intitled, The North Briton,” and to apprehend and seize them,

“together with their papers, and to bring in safe custody before me, to be examined.”28

With the warrant in hand, on the morning of April 30, 1762, the four messengers, and

Constable Robert Chisholm, arrived at Wilkes’s home. It took more than two hours for Wilkes to agree to leave the premises. He insisted that his status as a Member of Parliament protected him.

Eventually, he agreed to go to Lord Halifax’s home—just a few doors down Great George Street.

Thereafter, Robert Wood, secretary to Lord Egremont, Secretary of State for the Southern

Department, oversaw the search and seizure of Wilkes’s possessions.

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 the 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 Hallifax to seize all manuscripts.”29 When the locksmith arrived, the men took all of the papers out of Wilkes’s drawers and put them, along with his pocket book, into the sack. Wilkes challenged his imprisonment and the legality of the warrant, bringing a claim against Wood.30

25 North Briton, No. 31, Jan. 1, 1763 reprinted in NORTH BRITON, supra note 7, at 175. 26 North Briton, No. 45, Apr. 23, 1763 reprinted in NORTH BRITON, supra note 7, at 265 27 Id. at 267. 28 Warrant reprinted in ENGLISH HISTORICAL DOCUMENTS, 10, 256 (D.B. Horn & Mary Ransome eds., 1957). 29 Entick v. Carrington, supra note 3, at 1156. 30 The Kingdom of Great Britain at that time had two Secretaries of State, with Lord Hallifax placed in the more junior position of Secretary of State of the Northern Department, responsible for Northern England, Scotland, and relations

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Wilkes’s status amongst many parliamentarians was that of a boil on the backside of a pig.

As Lord Barrington wrote to the British envoy in Berlin in May 1763, “Nothing is at present talked of here, but the affair of a very impudent worthless man named Wilkes, a member of

Parliament, who was lately taken up by the Secretaries of State for writing a most seditious libel personally attacking the King.”31 But the “mob”, as Barrington despaired, and not a few others— who sought no favor from the monarch—quite supported Wilkes, if not for the substance of what he had written, then for the reason that the Crown’s response had gone too far.32

Chief Justice Pratt ruled that Wilkes’s arrest and detention infringed Parliamentary privilege.

Libel being no breach of the peace, the Crown must release Wilkes. The decision floored the ministry and fuelled speculation that Pratt had lost his mind. Wilkes spun the verdict as a defense of liberty, giving a rousing speech to a crowd of 10,000, which accompanied him from

Westminster Hall back to his home on Great George Street. Forced to release Wilkes from prison on Friday, May 6, 1762, by Monday, May 9, Lord Halifax had ordered Attorney-General Yorke to prosecute Wilkes for seditious libel. That same day Yorke filed charges in the Court of King’s

Bench. Wilkes responded by, inter alia, suing Robert Wood for trespass.

The trial of Wilkes v. Wood began at 9 o’clock am on December 6, 1763 at the Court of

Common Pleas at Westminster. Wilkes’s lawyer, John Glynn, who had little personal affection for his client, 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 inheretence [sic.] of Englishmen.”33 Glynn explained, “In vain

with the Protestant countries in Northern Europe, and Charles Wyndham, 2nd Earl of Egremont, serving in the more senior role of Secretary of State of the Southern Department, which focused on Southern England, Wales, and Ireland, as well as Roman Catholic and Muslim countries abroad. Lord Hallifax explained during the trial that although the two offices were carried on in separate departments, together they formed one complete secretary’s office. Thus, as Lord Egremont’s secretary, Wood was heavily involved in Wilkes’ prosecution. Wood also had been involved in the preliminaries of the treaty of Paris. 31 Letter from Lord Barrington to Mr. Mitchell, May 13, 1763 in ORIGINAL LETTERS, ILLUSTRATIVE OF ENGLISH HISTORY 464 (Henry Ellis ed., 1827). 32 Id. at 465. 33 The Case of John Wilkes, esq. against Robert Wood, esq. in an Action of Trespass. Before Lord Chief Justice Pratt, in the Court of Common Pleas, Mich. Term, 3 GEORGE III. (1763) in A COMPLETE COLLECTION OF STATE TRIALS AND PROCEEDINGS, supra note 3, at 1153 [hereinafter Wilkes v. Wood].

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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.”34

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.”35 English law, counsel argued, “never admits of a general search-warrant.”36 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.”37 The warrant, signed three days before Lord Halifax actually received information supporting its execution, failed to name John Wilkes. It did not include specific items to be seized, nor particular places to be searched. It was an outrage to the British Constitution.

After more than twelve hours of witnesses and argument, Chief Justice Pratt summarized the evidence that had been presented, noting that the action in question was one of trespass, to which

Wood had initially plead not guilty but later shifted to defend based on a special justification.38

Pratt inveighed the jury to consider extraordinary damages to make the point that such behavior would not be tolerated in the future. After a mere half hour of deliberation, the jury returned a verdict for Wilkes, awarding £1000 damages. Two days later, the St. James’s Chronicle reflected, “By this important decision, every Englishman has the satisfaction of seeing that his home is his castle.”39

Charles Pratt’s view of general warrants was hardly unique. His chief constitutional rival was

William Murray, Lord Chief Justice of the Court of King’s Bench, his senior in age (and

34 Id. 35 Id. at 1154. 36 Id. 37 Id. 38 Wilkes v. Wood, 98 Eng. Rep. 489 (C.B. 1763), available at http://kadidal.blogspot.com/2006/04/below-entire-text- of-wilkes-v.html.] 39 ST. JAMES’S CHRONICLE, 8 Dec. 1763.

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according to Jeremy Bentham, dignity), and equal in argument.40 As a Tory, Mansfield’s political perspective differed from that of his junior, Whig colleague. Despite their political differences, the men agreed on the illegality of promiscuous search and seizure.

In 1765, like the Chief Justice of the Court of Common Pleas, Mansfield found himself confronted by 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.41

Lord Chief Justice Mansfield similarly found the execution of the general warrant to be a violation of the common law.

The facts mirrored those of Wilkes v. Wood. On April 23, 1763, a constable and four King’s

Messengers entered Dryden Leach’s open front door and found both him and freshly-printed copies of North Briton Nos. 1 and 2. They arrested Leach. For the next six hours, the same

Nathan Carrington that executed the general warrants against John Entick and John Wilkes, in this instance assisted by John Money, James Batson, and Robert Blackmore, searched Leach’s home. Lord 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.42 When he finally met with Leach, Lord Halifax concluded that Leach had not printed the pamphlet and ordered his release. Leach brought suit against the King’s messengers for breaking and entering his home, for seizing his person and papers, and for imprisoning him for four days.

40 Jeremy Bentham, Reminiscences of the Visits to Boxwood, 1781-1785, reprinted in THE WORKS OF JEREMY BENTHAM, NOW FIRST COLLECTED, VOL. 19, Ed. By John Bowring, pp. 119-121, https://books.google.com/books?id=cH1ZAAAAcAAJ&pg=PA119&lpg=PA119&dq=relationship+between+Lord+ca mden+and+mansfield&source=bl&ots=gzPmJjThCo&sig=YveE9wjx4WlNHcS8pSg9oAToPQ&hl=en&sa=X&ei=2_3 AVMaNNuO1sATR_oHgDg&ved=0CEsQ6AEwCA#v=onepage&q=relationship%20between%20Lord%20camden% 20and%20mansfield&f=false. For discussion of Mansfield’s central role in cases involving seditious libel, see JAMES OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY, Vol. 2 775- 860 (1992); JAMES OLDHAM, ENGLISH COMMON LAW IN THE AGE OF MANSFIELD 209-235 (2004). 41 Leach v. Money, 3 Burr. 1742, 1766, 19 Howell St. Tr. 1001, 1027, 97 Eng. Rep. 1075, 1076 (K.B. 1765). 42 Proceedings on Error in an Action of False Imprisonment by Dryden Leach, against John Money, James Watson, and Robert Blackmore, three of the King’s Messengers, King’s-Bench, Eastern Term, 5 GEORGE III, and Mich. Term, 6 GEORGE III, (1763) in A COMPLETE COLLECTION OF STATE TRIALS AND PROCEEDINGS, supra note 3, at 1005 [hereinafter Leach v. Money].

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The case of Leach v. Money first came before Chief Justice Pratt at the Court of Common

Pleas on December 10, 1763. 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 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.”43 Leach argued in response that they were covered neither by that statute nor by the statutes of James I, “An Act for East in Pleading against

Troublesome and Contentious Suits Prosecuted against Justices of the Peace, Mayors, Constables, and Certain Other His Majesty’s Officers, for the Lawful Execution of their Office,” nor the subsequent act “to Enlarge and Make Perpetual” the same.44 The jury found for plaintiff and awarded him £400. The defendants filed a Bill of Exceptions in the Court of King’s Bench, seeking relief.

Lord Chief Justice 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. Seditious libel represented an offence against Government and the public peace, “effectually undermin[ing] Government.”45 The Secretary of State, in turn, “is a centinel

[sic.] 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.”46 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 practice and usage.”47

Leach’s counsel, John Dunning—an effective barrister in his own right—responded that the

Secretary of State is not a justice, conservator, or constable—nor are the king’s messengers in ordinary immune by nature of their office. They are simply volunteers, unrecognized by law and

43 Id. at 1010. 44 Id. 45 Id. at 1013. 46 Id. 47 Id. at 1018.

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outside the command of justices of the peace. The generality of the warrant, moreover, made it invalid. 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.”48 Hearsay, alone, even if true, was insufficient evidence of the crime alleged. 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 warrants 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, “Such a power would be extremely mischievous, and might be productive of great oppression.”49 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.”50 Dunning concluded, “To search a man’s private papers ad libitum, and even without accusation, is an infringement of the natural rights of mankind.”51

Lord Chief Justice Mansfield agreed. Under common law, in certain cases, constables could exercise arrest without an accompanying warrant. As a statutory matter, the authority to arrest under general warrant had been extended to certain contexts, such as writs of assistance, or warrants to take up disorderly people. Here, however, no common law authority provided the power to apprehend; nor had Parliament created an explicit exception, “Therefore it must stand upon principles of common law.”52 A critical misstep was the absence of a third party, standing in discernment of the evidence, to authorize arrest, search, and seizure: “The magistrate ought to

48 Id. at 1022. 49 Id. at 1024. 50 Id. 51 Id. 52 Id. at 1027.

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judge; and should give certain directions to the officer.”53 Mansfield noted, “Hale and all others hold such an uncertain warrant void: and there is no case or book to the contrary.”54 The judgment stood.

General Warrants

The rejection of general warrants, central to Entick v. Carrington, Wilkes v. Wood, and Leach v. Money, boats a pedigree that stems, at least as argued in the 17th Century, back to the 1215

Magna Carta. 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. There could be no liberty if any subject in his majesty’s dominion could be imprisoned without cause; nor could property be secured if it could be subject to search on any occasion, in the wake of which charges against the individual holding the property could then be constructed.

The sanctity of the home lay at the heart of the objection. As the Court of the King’s Bench famously announced in 1604, “[T]he house of everyone is to him as his castle and fortress.”55

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.

Despite the principle, beginning with Henry VII, Englishmen increasingly found their homes entered and their papers and effects inspected at the Crown’s pleasure. The impetus behind greater use of general warrants could be found in the politics of the day. Having seized the monarchy from Richard III, Henry Tudor’s claim to kingship was somewhat tenuous. He made greater use of the powers to head off threats to his government. His progeny went on to employ general searches to solidify social, political, economic, and intellectual control of the country. In

53 Id. 54 Id. 55 Semayne's Case, (1604) 77 Eng. Rep. 194, 195 (K.B.).

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1559, Elizabeth I created a High Commission, to which she appointed nineteen lawyers, knights, bishops, and others, to “devyse all . . . polytik ways and means” to search out those who defied the church. The commission was modeled after its Marian precursor, which conducted similar searches against Protestants. The Privy Council also made use of general warrants, directing the queen’s men to search any places suspected of housing papers contrary to state interests. The

Stuarts continued the practice. James I expanded the High Commission’s jurisdiction to include the power to search for papers considered seditious as well as heretical, and to target not just those writing such documents, but anyone who wrote, printed, or distributed them. Shortly thereafter, he extended the commission’s remit to include any materials “offensive to the state.”

In the operation of general searches, both monarchical Houses relied in part on writs, or warrants.

The increasing use of general warrants and their expansion to numerous areas of the law— ranging from pursuit of individuals accused of crime and recovery of stolen possessions, to economic regulations, weapons, customs, and the suppression of political and religious ideas— meant that what had been an infrequent experience to which few people had been subjected, became a common action to which many were exposed.56 The practice generated attention in

English legal thought as to what constituted a “reasonable,” as opposed to an “unreasonable,” search and seizure. This conversation, in turn, focused attention on what elements of a search contributed most directly to the reasonableness of the qualities that attached. General warrants became seen as foremost amongst egregious powers exercised by the Crown, placing their exercise outside acceptable bounds.

Starting with the English Civil War of 1642, a systematic assault on general warrants began.

The chief legal architect of the battle was Sir Edward Coke, whose Institutes of the Laws of

England fundamentally transformed English legal thought. Coke was well-placed to comment.

In addition to his formidable mastery—and manipulation—of English law, Coke had participated

56 See generally WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791 (2010).

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in the execution of one of the most notorious promiscuous searches of the times and himself been subjected to a general warrant.

In the former context, James I responded to the 1605 Gunpowder Treason Plot, an ill-fated effort by Robert Catesby and a band of Catholics to assassinate the king, by issuing two general warrants directed towards apprehending individuals suspected of complicity in the plot.57 Coke, then attorney general, assisted in executing the warrants by searching the chambers of a Catholic family in the Inner Temple and seizing two books.58

Less than two decades later, Coke found himself at the receiving end of a general warrant.

James I had him detained, while agents of the crown searched his home and chambers in the Inner

Temple. Ordered “to make diligent search for all such papers and writeings as doe anie way concerne his Majestie’s service” and “to open all such studies, clossetts, chests, trunkes, deskes, or boxes that you shall understaund or probably conceave” contain such material, officers brought

Coke’s papers before the Privy Council.59

Coke cited this experience in Parliament to argue for the inclusion of clauses in the 1628

Petition of Right that would prevent 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. “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. . .”60

It was not the first occasion on which Coke had, during parliamentary debate, objected to general warrants. In March 1628 he argued, “No free man ought to be committed but the cause

57 Procl. No. 57, Westminster, 5 Nov. 1605 in 1 STUART ROYAL PROCLAMATIONS: ROYAL PROCLAMATIONS OF KING JAMES, 1603-1625, 123 (Larkin and Hughes eds., 1973); Procl. No. 60, Westminster, 18 Nov. 1605 in STUART ROYAL, supra note 49, at 128–29. 58 HUGH ROSS WILLIAMSON, THE GUNPOWDER PLOT 196-97 (1951) (noting Coke’s removal of two manuscript copies of A Treatise of Equivocation and Tresham’s suspicious death, possibly due to poison, shortly thereafter). 59 Warrant (Dec. 30, 1621) in Sir Edward Coke, 3 SELECTED WRITINGS OF SIR EDWARD COKE 99 (Steve Sheppard, ed. 2003), available at http://lf-oll.s3.amazonaws.com/titles/913/Coke_0462-03_EBk_v6.0.pdf. 60 Coke to Parliament, Committee of the Whole House, Proceedings and Debates, ff. 100–100v, in CD, III, 149-51 (Apr. 29, 1628) in SELECTED WRITINGS, supra note 51, at 58.

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must be showed in particular. If it be for treason or murder the particular must not be showed, but the general must. If he escape and break prison, if there be a particular cause, he shall suffer as if he the cause for which he is taken, etc. . . . It is against reason to send a man to prison and not to show the cause.”61 Royal prerogative, or reason of state, would not suffice to replace particularization: “[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.”62

Coke returned to these arguments in his Institutes. While other commentators had condemned the methods employed by the Crown to arrest individuals and to search their personal papers, it was Coke who isolated general warrants as the enabling device. He took aim at their exercise as a matter of criminal law. “One or more justices of peace,” he wrote, “cannot make a warrant upon a bare surmise to break any mans house to search for a Felon, or for stoln [sic.] goods, for they being created by act of parliament have no such authority granted unto them by any act of parliament.”63 Evidence of the target’s guilt in the acts alleged must be produced: “it 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.”64 To issue general warrants, he stated, “is against Magna Carta, Nec super eum ibimus, nec super eum mittimus, nisi per legale judicium Parium forum, vel per legem Terrae [Neither will we pass upon him, or 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.”65 Claims must be demonstrated in open court, “because

61 Coke to parliament, Committee of the Whole House, Proceedings and Debates, ff. 21–21v, in CD, II, 100–101 (March 25, 1628) in SELECTED WRITINGS, supra note 51, at 34. 62 Coke to Parliament, Committee of the Whole House, Proceedings and Debates, f. 99, in CD, III, 94–96 (Apr. 26, 1628) in SELECTED WRITINGS, supra note 51, at 55-56. 63 EDWARD COKE, THE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 176 (1644). 64 Id. at 177. 65 Id.

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Justices of Peace are Judges of Record, and ought to proceed upon Record, and not upon surmises.”66 General warrants thus violated not just a statute dating back to 1368, but the Magna

Carta itself. Errores ad sua principia referre est refellere. To trace errors to their beginning is to bring them to an end.

In the years that have elapsed since Coke wrote his treatise, scholars have excavated the context of Magna Carta to point out that the original meaning of the text Coke cited, the clause that has come to be known as Article 39, bore little resemblance to Coke’s interpretation.67

Coke’s understanding of the right against general searches as stemming from Magna Carta, however, was hardly novel. In 1589 Privy Council clerk Robert Beale bemoaned the passing of

Magna Carta, if every agent of the High Commission “by a warrant under the hands of the

Commissioners, shall enter into mens howses, break upp their chestes and chambers, . . . carry away what they list, and afterward pick matter to arrest and commit them.” Other critics of general warrants followed suit. Coke’s analysis, moreover, was not the first reconstruction of

Magna Carta. Rights related to taxation by consent and Parliamentary approval, indictment by grand jury, and the importance of due process of law were all similarly, ex post facto, read into the language and meaning of the charter.

66 Id. The historiography of Magna Carta is convoluted, at best. By way of summary, the original document, signed in 1215 between John and his Barons, was known as the Baron’s Charter. In 1225 the Charter of the Forest was divided from the rest of the document, at which point the title “Magna Carta” was used to refer to the remaining text. Because the document was re-issued by Henry III and Edward I, they were generally given credit for the introduction of Magna Carta as the first statute, until 18th century legal scholars drew attention to John’s role in the Baron’s Charter. As the document evolved, some clauses previously included were altered. What began as clauses 39 and 40 in 1215 became clauses 32 and 33 in 1216, clauses 35 and 36 in 1217, and clause 29 from 1225 onwards. Thus, Coke, writing in the 17th century, referred back to clause 29 as the statutorily enforceable clause (not the original clauses 39 and 40). The current trend in American scholarship, however, is to refer to the Baron’s Charter numbering, in which clauses 39 and 40 incorporated what Coke later cited to in support of the proposition that general warrants violated the charter. See generally ANTHONY ARLIDGE AND IGOR JUDGE, MAGNA CARTA UNCOVERED (2014); DANIEL B. MAGRAW ET AL. EDS., MAGNA CARTA AND THE RULE OF LAW (2014); CLAIRE BREAY, MAGNA CARTA: MANUSCRIPTS AND MYTHS (2002); and J.C. HOLT, MAGNA CARTA (2d. ed. 1992). 67 See, e.g., Edward Jenks, The Myth of Magna Carta, 4 INDEPENDENT REV. 260 (1904) (arguing the absence of the notion of “due process” in the Magna Carta, attributing the symbolic ascention of the document to Coke’s work, and arguing that the document reflected custom, not the rights of men and citizens or the foundation of liberty); Max Radin, The Myth of Magna Carta, 60 HARV. L. REV. 1060-1091, 1071 (1947)(agreeing with Jenks on the due process point, noting that most scholarship on the charter begin with 19th century sources, and arguing that the charter is best “regarded as a clarified statement of what most persons regarded as fundamental feudal law.”) See also J.C. HOLT, MAGNA CARTA, 2D ED. (1992).

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The Petition of Right directly incorporated Coke’s reading of the illegality of general warrants.68 The document was ratified by the House of Commons and the House of Lords on 26 and 27 May 1628 and accepted by King Charles I on June 2nd. Parliament objected that merely receiving the petition was insufficient, demanding that the King give Royal Assent to the document. This he did on June 7, 1768, thus 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.69

Thus, whatever one may think of Coke’s somewhat generous interpretation of Magna Carta— much less his selective and strategic use of case law—his writing reflected growing frustration at the ever-expanding use of general warrants by the crown. And he grounded his rejection of the instruments in the most ancient of English rights. It was not that general warrants were not in use. To the contrary, Coke himself acknowledged the frequency with which they were exercised, pointing out, “For 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.”70 The issue was that they ran counter to the rights enshrined in Magna Carta.

It is perhaps unsurprising that the Institutes themselves fell subject to the very warrants they condemned. As Coke lay dying, Charles I ordered that his home be searched and “all such papers and manuscripts” as considered fit for confiscation be seized and brought before the king.

Charles I himself broke open the locks on the trunks when they arrived and catalogued their

68 The Petition of Right is considered to be 1627, although it did not receive Royal Assent until June 1628 owing to the practice at the time of giving statutes the year in which the session of Parliament convened. 3 Cha. 1 convened on March 17, which was considered 1627 in the old style calendar, the new calendar year, until Jan. 1 1752, beginning March 25th. 69 ENCYCLOPAEDIA OF THE LAWS OF ENGLAND, BEING A NEW ABRIDGMENT BY THE MOST EMINENT LEGAL AUTHORITIES, UNDER THE GENERAL EDITORSHIP OF A. WOOD RENTON, VOL. VI, FREIGHT TO INTERMENT 63 (1898). The encyclopedia cites to two further sources. The Law Lexicon, or Dictionary of Jurisprudence (1848) defines General Warrants narrowly as “a process which used to issue from the state secretary’s office, to take up (without naming any persons in particular), the author, printer, and publisher of such obscene and seditious libels as were particularly specified in it. It was declared illegal and void for uncertainty by a vote of the House of Commons. Com. Jour. 22nd April, 1766.” (p. 418). 70 SIR EDWARD COKE, THE FOURTH PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 177 (1817).

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contents. Similar orders accompanied a search of Coke’s papers at the Inner Temple, as they were considered “disadvantageous” to the Crown.71

While the manuscripts of the Institutes were among those items confiscated, Charles I’s actions were too late to stem the tide. English legal commentators went on to take Coke at face value, cementing his critique into English thought. 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; a methodical summary, “A general Warrant to search for Felons or stoln Goods, not good.”72 Two years later, Parliament directed publication of Hale’s manuscript.

When Historia Pacitorum Coronae [History of the Pleas of the Crown] finally appeared in

1736, it became enormously influential. 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 whereof, for these warrants are judicial acts, and must be granted upon examination of the fact.”73 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.”74 As with search provisions, 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.”75

71 CUDDIHY, supra note 48, at 145. 72 SIR MATTHEW HALE, PLEAS OF THE CROWN, A METHODICAL SUMMARY 93 (1678) (citing C. Jur. Courts, p. 177). [Note that Parliament directed publication of the volume in 1680, but the first edition was not released until 1736 as History of the Pleas of the Crown.] 73 2 MATTHEW HALE, HISTORIA PACITORUM CORONAE 150 (1736); see also id. at 109-111 (“To be valid, the party demanding the warrant out to be examined upon his oath touching the whole matter, the warrant must be under the hand and seal of the justice. It must have a certain date, but the place, tho it must be alleged in pleading, need not be expressed in the warrant. […] The warrant ought to contain the cause specially and should not be generally to answer such matters as shall be objected against him. . . . in warrants of the peace and good behavior the cause must be shewn, that the party may come provided with his sureties; . . .”). 74 Id. 75 1 MATTHEW HALE, HISTORIA PACITORUM CORONAE 580 (1736).

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It was to this publication that Lord Mansfield appealed in the case of Leach v. Money.76 And it was to Coke and Hale that Sergeant William Hawkins appealed in his Pleas of the Crown to underscore the illegality of general warrants: “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,” he wrote. 77 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.78 Hawkins looked to Coke and Hale’s disapproval, stating that probable cause must first be demonstrated, particularity attached, and a warrant issued prior to arrest.79 A number of influential English legal treatises and abridgements followed Hawkins’s Pleas, condemning general warrants.80

Even as Coke laid the legal foundation, Parliament chipped away at the edifice on which general warrants perched. Initially, concern stemmed from Parliamentarians’ objection to the exercise of powers that they had not created, and their use against Members, making legislative privilege and self-interest—and not individual rights—the touchstone for their concerns.

Parliament therefore sent agents of the crown to the Tower of London for conducting searches

76 Coke and Hale were hardly the only legal scholars to reject general warrants. By 1680 political writer Henry Care moved the discussion further in English Liberties, arguing for a requirement of specificity in warrants. See also 2 WILLIAM HAWKINS, TREATISE 81-82 (1716-1721); 1 THOMAS WOOD, INSTITUTE 139 (1720); 2 HALE, supra note 65, at 107, 113-14. 77 2 HAWKINS, supra note 68, at 84. 78 Id. 79 Id. 80 See, e.g., 2 BURN, JUSTICE OF THE PEACE 348-49 (1755); 1 JOSEPH SHAW, THE PRACTICAL JUSTICE OF PEACE 489 (1728); S. BLACKERBY, THE SECOND PART OF THE JUSTICE OF PEACE HIS COMPANION 303 (1729); JUSTICE’S CASE LAW 296 (1731); JOSEPH SHAW, PARISH LAW 361 (1733); LAW OF ARRESTS 173-174, 186 (1742)(“A Justice of the Peace (it is said) cannot justify the Granting a general Warrant to search all suspected Houses in general for stolen Goods; for such a Warrant seems in the very Face of it to be illegal, because it would be very hard to leave it to the Discretion of a common Officer to arrest what Persons, and search what Houses he should think fit. . . .And yet there is a Precedent of such general Warrant in Dalton’s Justice, notwithstanding the Unreasonableness, and seeming Unwarrantableness of such Practice” and “But it seems to be very questionable, whether a Constable can justify the Execution of a general Warrant to search for stolen Goods, because such Warrant seems to be illegal in the Face of it, and it would be very hard to leave it to the Discretion of the common Officer to arrest what Persons and search what Houses he thinks fit.” See also following clause, requiring specificity in an arrest warrant); BARLOW, JUSTICE OF THE PEACE 41 § 5 (1745); PEARCE, JUSTICE OF THE PEACE 11 (1754); CHARLES VINER, A GENERAL ABRIDGEMENT OF LAW AND EQUITY (1741-53); MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW (1832); SIR JOHN COMYNS, A DIGEST OF THE LAWS OF ENGLAND (1822). See also CUDDIHY, supra note 48, at 121.

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against its members81 and considered certain general warrants dormant, as they acted “against law and the liberties of the subject.”82 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.”83 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.84

Nevertheless, like Coke’s treatise, Parliament’s actions reflected growing public resistance— and opposition—to the use of general warrants. Soon after Chief Justice Pratt’s judgment in

Entick v. Carrington, the House of Commons passed a Resolution condemning the use of general warrants for libels.85 During debate, Parliament underscored their 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.” Three days later, Parliament amended the resolution, to make general warrants universally illegal, outside of specific cases provided via statute.86

The issue returned to the floor in January 1765. Members of the House of Commons argued that if seizing authors, printers, and publishers for libel, sedition, or treason, under general

81 See, e.g., Proceedings Against Sir Edward Herbert (House of Commons, Mar. 8, 1641-2). 82 COMMITTEE REPORT, Prynne, New Discovery 139 (Mar. 1-2, 1641), cited in CUDDIHY, supra note 48, at 126, n. 101. 83 ARTICLES OF IMPEACHMENT…AGAINST SIR WILLIAM SCROGGS, 2 P. D. 22, 26 § 6 (Jan. 5, 1681); 2 C. H. 63, 66; 9 C. J., 700, cited in CUDDIHY, supra note 48, at 126, n. 103. 84 Id. 85 6 GEO. III (Apr. 22, 1764) in T.C. HANSARD, THE PARLIAMENTARY HISTORY OF ENGLAND, FROM THE EARLIEST PERIOD TO THE YEAR 1803 208 (1813) (The resolution read, “That a General Warrant for apprehending and seizing the authors, printers, and publishers, of a seditious libel, together with their papers, is not warranted by law.”). 86 An effort on April 29, 1764, to introduce a statute solidifying the change, allowing general warrants only in cases of treason or felony without benefit of clergy, under certain regulations, failed. Nevertheless, on May 2, a bill was presented to the House of Commons to limit government exercise of search and seizure. Its title amended to “A bill to prevent the inconveniencies and dangers to the subject from searching for and seizing papers, by establishing proper regulations, in such cases where searching for and seizing papers is justifiable by law, passed the Commons on May 14th, but failed to muster the necessary votes to pass the House of Lords. The text of the resolutions passed by the House of Commons on 22 April 1766 and 25 April 1766 are also available in 16 The Parliamentary History of the Laws of England 207-209 (T.C. Hansard 1813).

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warrant, was objectionable, use of the same “for seizing their papers was still more so.”87 The reasoning? “[P]apers, though often dearer to a man than his heart’s blood, and equally close, have neither eyes nor ears to perceive the injury done to them, nor tongue to complain of it, and of course, may be treated in a degree highly injurious to the owners.”88 The potential for papers to be combined or disjoined, “so as to make of them engines capable of working the destruction of the most innocent persons” could hardly be ignored.89 Even particular warrants, focused on seditious papers, without specific mention of the documents in question, “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 owner to have made public.”90

The debate, and the reason for objecting to general warrants, presages arguments that continue to mark the current context—arguments to which we will return in chapter six. As for the 18th century context, 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 unbiased integrity.”91 The men exercising the warrants being lawyers, and respectful of liberty, their integrity should not be impugned. Reliance on the respect owed to those exercising the powers did not win the day. By 1766, comment in Parliament had become even more extreme: “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 on purpose, in any case whatever, that a legal warrant would not better attain.”92

87 5 GEO. III, Debate in the Commons (January 29, 1765). 88 Id. 89 Id. 90 Id. 91 Id. 92 A Speech in Behalf of the Constitution against the Suspending and Dispensing Prerogative, &c., (Dec. 10, 1766).

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Two years later, William Blackstone’s Commentaries on the Laws of England announced that the question had 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.”93

Blackstone underscored the distinction between specific and general warrants. The former, discussed at length by Sir Matthew Hale, may lead to arrest on the basis of individualized suspicion. Evidence must be submitted, under oath, to a competent judge, who may then issue a warrant for arrest. Such warrants, issued in open court, ought to bear the seal of a justice of the peace.

In contrast, “A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for it's 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.”94 Blackstone continued, “[A] warrant to apprehend all persons guilty of a crime therein specified, is no legal warrant: for the point, upon which it's 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.”95

In summary, by 1765, prominent Law Lords, the Court of Common Pleas, the Court of the

King’s Bench, English legal treatises, Parliament, and the general public had come to reject the use of general warrants for arrest as well as for search and seizure of private papers and effects.96

In a few areas, such as customs, the practice of using general warrants persisted. To some extent, this may have been a product of the prevalence of smuggling and the seriousness with which the

93 3 WILLIAM BLACKSTONE, COMMENTARIES, 288 (1768); 4 WILLIAM BLACKSTONE, COMMENTARIES, at 286-90 (1769). 94 Id. 95 Id. 96 The position of the Court of Exchequer on this point is not clear, as approximately one-third of the court’s 18th century records are missing. See James Oldham, Introduction, 128 CASE NOTES OF THE SELDEN SOCIETY, pp. xv-xviii (2013).

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Crown treated matters related to the treasury.97 Nevertheless, even here, it was fraught with controversy—perhaps nowhere more so than in the American colonies, where special rules under

English law allowed for general searches in relation to customs. The increasing use of the associated instruments—writs of assistance—created ever-greater friction between American colonists and the king, in much the same way that broader use of general arrest and search warrants following the English Civil War had engendered a legal battle between English subjects and the Crown.98

Colonial Perspectives on General Warrants

At the most general level, early American colonists reviled search and seizure simply on the grounds that it unduly interfered with private life. Enmity therefore was not reserved for general warrants, but for any time government officials violated the sanctity of the home. Response to such searches tended to be immediate and visceral—not part of an intellectualized, scholarly campaign against promiscuous search. 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.99 The question was not whether a warrant was general or specific; efforts to serve either resulted in hostility. 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 at the captain’s home. According to a local newspaper,

“A greasy Fellow with a leather apron” declared, “my house is my castle, and so is my ship, and

97 See, e.g., J.M. BEATTIE, CRIME AND THE COURTS IN ENGLAND 1660-1800 (1986) (Part I, focused on Offenses and Offenders before the Courts, discussing the seriousness within which the Crown dealt with revenue matters). 98 In 1662, for instance, the Earl of Southampton lamented that even as he granted general warrants at the request of the customs officers, he was assaulted and vexed by those upon whom the warrants were being served. Within two decades, customs had imposed its own restrictions bringing even customs in alignment with the other areas, requiring that officers first demonstrate to a magistrate, under oath, the facts on which search and seizure rested. “Dictionary of rates & laws relating to customs, 1682,” Additional Mss., 32, 523, fol. 235 verso, item 149 (sub. cap. “Examination”), Br. Lib., London, cited in CUDDIHY, supra note 48, at 127, n. 109. Within a short time, however, the Earl had done an about-face. 99 CUDDIHY, supra note 48, at 186.

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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.”100 The question was not under what conditions the crown could enter their homes—the conversation that emerged across the Atlantic—but whether their homes could be entered at all, as a matter of law.

Reflecting this attitude, from the earliest colonial times, there were fewer conditions under which officials in the Americas could enter homes to search or 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 explanation as to 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. It is thus, perhaps, unsurprising that individuals seeking to flee from political or religious persecution should choose not to import general warrants related to efforts to control dissent into the New World.

But this was not the only area where more limited powers traversed the Atlantic. Search and seizure measures related to the guilds, or recreation by the working classes, also remained uniquely English. And while promiscuous search and seizure related to bankruptcy, vagrancy, and game poaching continued to mark English law, only a few colonies adopted similar instruments. Nor did the use of general warrants for military service traverse the water. Fewer areas where general search could be executed (such as hue and cry or collection of revenues) marked colonial times.

Regardless of the precise reason why it was the case, as a practical matter, by the end of the seventeenth century, England had approximately twice as many areas where the crown indulged in promiscuous search and seizure.101 And unlike England, where such searches became the

100 THE SOUTH-CAROLINA GAZ., 40 Oct. 26 – Nov. 2, 1734 at 2, col. 1, cited in Id. 101 CUDDIHY, supra note 48, at 228.

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norm, in the American colonies they did not. Except with regard to customs, and writs of assistance, where general searches, exercised by officers of the Crown, became more and 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, 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.

Seeds of conflict between colonists and Crown with regard to these writs were laid in 1678, when a man called Edward Randolph became the chief agent of the Commissioners of Customs in New England. A meticulous, if partisan, administrator, Randolph was highly critical of colonial government. His appointment followed on a visit he had made to Boston in June 1676, where he reported back to the Crown that Massachusetts Bay Company was abusing its charter, tolerating illegal trade, and exerting tyrannical power over its citizens and neighbors. 102

Returning to the colonies, Randolph was appalled at the colonists’ disdain for the Crown. He identified a small group of Loyalists and began planning a new form of government, which he referred to as the dominion of New England. The aim was to replace Massachusetts Bay and other, nearby colonies, including what eventually became New York. Randolph’s reports directly led to the annulment of the Massachusetts Bay Company charter.

During the 1689 uprising, a colonial echo of the Glorious Revolution, Randolph—rather unpopular with the local population—found himself imprisoned before being returned to

England. Despite his departure, the colonies had not seen the last of him. In April 1692,

Randolph returned to Virginia and initiated a three-year examination of nearly every port on the

Eastern seaboard, along the way strongly endorsing the use of general warrants. He documented inadequate record keeping, illegal trade, and corruption, with his final report leading to the

102 OXFORD DICTIONARY OF NATIONAL BIOGRAPHY, Edward Randolph.

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Parliamentary introduction of a new law, to cut off illegal colonial trade.103 The legislation created a system of admiralty courts to enforce regulations and to punish smugglers. Juries were to be constituted by Englishmen.104 The statute required officers to take oaths to uphold their legal obligations, under threat of removal and penalty. The Lord Treasurer, Commissioners of the Treasury, and commissioners of Customs would, “for the time being,” appoint customs officers in any city, town, river, port, harbor, or creek in the colonies.105 The statute gave these customs 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.106

Formal instructions to colonial officers following passage of the statute directed them to take special steps to enforce the Act using writs of assistance.107 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, the remaining third being retained for the Crown.

Increasing use of promiscuous searches and seizures followed introduction of the statute, with violence frequently accompanying exercise of the powers. Colonists became ever more concerned at how their homes and businesses were subject to government intrusion. Because the writs of assistance acted as a legal instrument, there was no judicial recourse to their exercise.

The documents gave officials carte blanche access to ships, warehouses, and homes, and all

103 AN ACT FOR PREVENTING FRAUDS AND REGULATING ABUSES IN THE PLANTATION TRADE, 7 & 8 GEO. III, c. 22 (1695- 66). The statute specified illegal trade to, from, or within the Asian, African, or American Colonies or Plantations. 104 Jurors had to be either natives of England or Ireland or born in the plantations. Note that the allowance of juries for admiralty matters related to customs departed from the practice in England at the time, where juries did not sit in courts of admiralty. 105 AN ACT FOR PREVENTING FRAUDS AND REGULATING ABUSES IN THE PLANTATION TRADE, 7 & 8 GEO. III, c. 22 (1695- 66). 106 Randolph also repeatedly proposed that the American colonies be consolidated under direct authority from the Crown. Although he managed to convince the Board of Trade of the plan, he died before it was enacted. Colonial law paralleled that of England. In 1695 the province of Maryland passed a law authorizing officers “to Enter into any Ship or Vessell Tradeing to and from this Province or into any house Warehouse or other building and open any Trunk Chest Cask or fardle and Search to make in any part of place of such Ship or Vessell houses or buildings as afd where such Navall Officer shall suspect any such furrs or Skinns to be.”106 Virginia and other colonies similarly introduced legislation requiring general warrants for the execution of customs laws.106 Over time, these powers steadily expanded, as did the objects of their affection (extending, for example, to contraband, tobacco, and other items). 107 See, e.g., “Draft of Orders and Instructions . . . to the governors of the Plantations,” Mar. 15, 1696/7, House of Lords Mss., ns., vol. 2 (1695-97) at 494; Instruction no. 1035, Leonard W. Labaree, ed., Royal Instructions to British Governors, 1670-1776 (1935), vol. 2 at 753, 762, cited in CUDDIHY, supra note 48, at 258-259, n. 30.

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persons, papers, and effects contained therein, violating the oldest of English rights: that of a person to be secure in their home.108 By the mid-18th century, tension had begun simmering. As the geopolitics shifted, a renewed effort to employ writs of assistance brought the tension to a rolling boil.

The Child Independence

In the mid-18th century, Great Britain controlled the thirteen colonies, with lands reaching 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 only some 70,000 settlers, in contrast to 1.5 million colonists to the east. There was constant friction between the

European powers as the borders between the territories were less than clear. Both countries constantly made an effort to expand their holdings in America—including, inter alia, land in the

Ohio River basin.

In 1748, on the heels of open conflict between the French and British over Cape Breton

Island, Massachusetts Bay Governor William Shirley entered negotiations with the French to determine the boundary between New England and the French settlements in Canada. The negotiations, which were held in Paris, continued for years. Aware of the strategic importance of the land west of the Allegheny Mountains, Shirley tried to push the borders of British North

America into the Ohio River Valley.

Even as the negotiations were being conducted overseas, skirmishes continued on the frontier. In 1752, angered by the Virginia governor’s continued grants of land to parts of the

108 See M.H. SMITH, THE WRITS OF ASSISTANCE CASE (1978) (tracing the history of writs of assistance); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776 – 1787 (1998); E.R. Adair and F. M. Grier Evans, Writs of Assistance, 1558-1700, 36 ENGLISH HISTORICAL REVIEW, no. 143, July, 1921 at 356-372. Note that Smith recognizes, “Juridically, the search warrant and the writ of assistance were poles apart,” noting that the former were judicial instruments and the latter legal instruments granted under a Parliamentary act, requiring citizens to assist under threat of being held in violation of the law. Id., at 39. Smith nevertheless concedes that both at the time and in the intervening years the writs were treated and considered as general search warrants.

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Ohio River basin, the French, and allied native American tribes in the region [the Seneca, the

Lenape (Delaware) and the Shawnee], seized or evicted all English-speaking traders from the region. 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 21-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,” Monsieur Legardeur de St. Piere, 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.”109 The governor responded by promoting Washington to

Lieutenant Colonel and directing him to return to Ohio to prevent the French from claiming the territory.

Washington did return with a force of 160 men, only to find himself significantly outnumbered. 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.

His opponents leaked the plans to the public, 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 what evolved into the

Europeans’ Seven Years War.

It was in the context of the French and Indian War that Governor Shirley, sensing the coming conflict, returned to Massachusetts Bay Colony. Shirley decided to take decisive action to assist in the war effort. He turned to writs of assistance to prevent French Canada from benefiting from illegal commerce. Instead of relying on legislation for legal authority, however, Shirley drew on his executive powers as governor—a rationale widely regarded as illegitimate for such purposes, not least because legislation passed by England in 1660 and 1662 required a warrant for searching

109 Letter from Legardeur de St. Piere, Fort sur La Riviere au Beuf, Dec. 15, 1753, to Robert Dinwiddie, Governor of Virginia Colony reprinted in THE JOURNAL OF MAJOR GEORGE WASHINGTON, SEND BY THE HON. ROBERT DINWIDDIE, ESQ; TO THE COMMANDANT OF THE FRENCH FORCES ON OHIO (1753) at 31.

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buildings.110 The colony’s impost laws and corresponding local measures, moreover, only allowed homes to be entered via specific, not general, warrant.111 Nevertheless, Shirley directed his newly-appointed customs officers, amongst them Charles Paxton and Thomas Lechmere, to vigorously use the governor’s writs of assistance to prevent illegal trade.112

Charles Paxton, responsible for the port of Boston, soon came into the possession of information indicating that a prominent Loyalist’s brother had illegal goods stored in his warehouse.113 The Loyalist, Harvard-educated Thomas Hutchinson, challenged Paxton, who produced the governor’s writ. Although Hutchinson retrieved the keys to the warehouse and gave them to Paxton, he objected that the warrant was not valid and noted that Paxton could be sued for breaking and entering.114

Charles Paxton reported Hutchinson’s remarks back to Governor Shirley, who responded by directing the customs officers to approach the Superior Court of Judicature in the colony to obtain a judicial writ to replace the writ that he had issued under his inherent executive powers.

Accordingly, on June 17, 1755, Paxton submitted an application to the Massachusetts Bay

110 AN ACT TO PREVENT FRAUDS AND CONCEALMENTS OF HIS MAJESTY’S CUSTOMS AND SUBSIDIES, Statutes at Large, 11&12 Charles II, c. 19, vol. III, 185 (Authorizing, upon an oath made to the Lord Treasurer, any Barons of the Exchequer, or Chief Magistrate of the place of the offence or nearby region, the same persons “to issue a warrant to any Person or Persons, thereby enabling him or them with the Assistance of a Sheriff, Peace or Constable, to enter into any House in the Day-time where such Goods are suspected to be concealed; and in case of Resistance to break open such Houses, and to seize and secure the same Goods so concealed; and all Officers and Ministers of Justice are hereby required to be aiding and assisting thereunto.” Such entry must be accomplished within a month of the suspected offence, relating to failure to pay and custom, subsidy, or other duties, without permission from officials.); An Act for Preventing Frauds, and regulating Abuses in his Majesty’s Customs, 13 & 14 Charles II, c. 11, §5 (“And it shall be lawful to or for any Person or Persons, authorized by Writ of Assistance under the Seal of his Majesty’s Court of Exchequer, to take a Constable, Headborough or other publick Officer inhabiting near unto the Place, and in the Day- time to enter, and go into any House, Shop, Cellar, Warehouse or Room, or other Place, and in Case of Resistance, to break open Doors, Chests, Trunks and other Package, there to seize, and from thence to bring, any Kind of Goods or Merchandize whatsoever, prohibited and uncustomed, and to put and secure the same in his Majesty’s Store-house, in the Port next to the Place where such Seizure shall be made.”). 111 See, e.g., 3 RECORDS OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND, PRINTED BY ORDER OF THE LEGISLATURE, Nathaniel B. Shurtleff, ed. (1644-57) 318-19, 372 (including language of the Impost law of Sept. 20, 1654, requiring impost officers to by suit in court to recover moneys due and not authorizing officers to enter homes to execute searches to recover the same). See also Impost law of Oct. 1, 1645, listed in A Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686, to which are included the Body of Liberties of 1641 and the Records of the Court of Assistants, 1641-1644 (1890). 112 Charles Paxton was assigned Surveyor of all Rates, Duties, and Impositions arising and growing under within the Port of Boston on Jan. 8, 1752. Josiah Quincy and Horace Gray, Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, Between 1761 and 1772, Appendix I, 403 (1865). 113 OXFORD DICTIONARY OF NATIONAL BIOGRAPHY, Thomas Hutchinson (1711-1780). 114 CUDDIHY, supra note 48, at 379.

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Superior Court to obtain a writ of assistance to empower him to carry out his duties. In August, the court granted the petition, directing justices of the peace to 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 ship, boat or vessel, “to View and search” and to examine the premises in the interests of obtaining customs and subsidies. The writ empowered Paxton in daytime “to enter and go into any Vaults, Cellars, Warehouses, shops or other Places to search and see, whether any Goods,

Wares or Merchandizes, 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

Merchandizes are suspected to be packed or concealed.”115 Within the next five years, all seven of Paxton’s colleagues had obtained similar writs.116

The language of these writs drew directly from the legislation passed by Westminster in 1660 and 1662. As was 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.

The ongoing French and Indian War meant that the instruments quickly became routine. In

August 1760 William Pitt the Elder, Southern Secretary of State (and thus responsible for the

American colonies), directed the then-Governor of Massachusetts Bay Colony, Sir Francis

Bernard, to make yet further use of the writs to prevent all trade not just with French Canada, but with the French Indies.117 The governor and royal customs officers were to “make the strictest

115 Charles Paxton was assigned Surveyor of all Rates, Duties, and Impositions arising and growing under within the Port of Boston on Jan. 8, 1752. See JOSIAH QUINCY AND HORACE GRAY, REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY, BETWEEN 1761 AND 1772, Appendix I, 404 (1865),; see also M.H. SMITH, THE WRITS OF ASSISTANCE CASE (1978), Appendix I, John Adams’s Contemporaneous Notes of the Writs of Assistance Hearing in February 1761, 547 (1761). The case itself is unreported in formal volumes. Instead, the record is based on notes taken during two hearings. John Adams recorded the first proceeding, and Josiah Quincy made notations on the second one. See Petition of Lechmere, 2 Legal Papers of John Adams 123-34 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965); Paxton’s Case, Mass. (Quincy) 51 (1761). Adams’s abstract of the argument was printed in 1773 I a paper in Boston. 116 CUDDIHY, supra note 48, at 379. 117 SMUGGLING DIRECTIVE: WILLIAM PITT TO GOV. FRANCIS BERNARD, Whitehall, 23 Aug. 23 1760, “Bernard Papers,” vol. 9, fol. 121, Harvard Univ. Library, Cambridge, Ma. Boston Gaz. and Cntry Jnl., Mon., 1 Dec. 1760 (no. 296), p. 1,

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and most diligent Enquiry into the State of this dangerous and ignominious Trade.”118 Every step authorized by law was to be taken “to bring all such heinous Offenders to the most exemplary and condign Punishment.”119

Three months later, King George II died. According to British law, all writs of assistance expired within six months of a reigning monarch leaving office.120 This gave the government only until April 1761 to renew the writs. In the interim, the Society for Promoting Trade and

Commerce Within the Province, a group comprised of prominent merchants in Boston and Salem, petitioned the Superior Court to hear arguments against re-issuing the writs.121

Like other colonial mercantile organizations, the Society had a strong influence on government policies and frequently found their position reflected in council and parliamentary decisions.122 In the period leading up to the Revolution, the Society took on increasing political importance—not least by openly challenging the customs officers (appointed by the Crown) in their use of writs of assistance.

Thomas Lechmere, by then Surveyor General of the Customs, lodged a petition in opposition to the Society, defending the extension of the writs.123 The Chief Justice at the time was none other than Thomas Hutchinson—the man who had first brought the need to approach a court for a writ of assistance to Paxton’s attention in 1755.124

The merchants chose as one of their counsel one of the leading lawyers of the times: James

Otis Jr. Otis’s father, a prominent merchant, lawyer, and politician from Barnstable (Cape Cod), col. 1. Md. Council, Procs., vol. 10 (1753–61); Md. Ar., vol. 31, pp. 416–17. Annual Reg., vol. 3 (1760), pp. 219–20. Death of George II: Entry, 1 Jan. 1761, “Boyle’s Journal,” N. E. H. G. R., vol. 84 (1930), pp. 154–55. Hutchinson, Diary and Letters, vol. 1, p. 64. Idem., Hist. (1764–1828), vol. 3, p. 88. Boston Gaz. and Cntry Jnl., Mon., 29 Dec. 1760 (no. 300), p. 2, col. 2, CUDDIHY, supra note 48, at 381, fn. 19. 118 Horace Gray, Writs of Assistance in Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay between 1761 and 1772, 407 (Samuel M. Quincy ed. 1865). 119 Id., at 408. 120 1 Anne, st. 1, c. 8, sec. 5 (1701), Statutes at Large, vol. 10, p. 416. 121 CUDDIHY, supra note 48, at 381. 122 See generally, CHARLES M. ANDREWS, THE BOSTON MERCHANTS AND THE NON-IMPORTATION MOVEMENT 160 (1917). 123 Thomas Lechmere to justices of the court, 21 Feb. 1761, “Court Files Suffolk,” vol. 573 (Mar. 1765), no. 100, 515b, Suffolk Co. Courthouse, Boston, cited in CUDDIHY, supra note 48, at 381, n. 22. 124 For further discussion of Thomas Hutchinson and his rather tense relationship with the Otises, see Malcolm Freiberg, Prelude to Purgatory: Thomas Hutchinson in Provincial Massachusetts Politics, 1760-1770, (unpublished Ph.D. thesis), Brown University, October, 1950.

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had used his friendship with Governor Shirley to secure Otis’s appointment as deputy advocate- general of the Massachusetts vice-admiralty court. But Shirley’s appointment was not just nepotism—a more qualified individual would be hard to find. Hutchinson, for instance, “never knew fairer or more noble conduct in a pleader than Otis,” who “defended his causes solely on their broad and substantial foundations,” instead of legal technicalities.125 When solicited by the

Crown to argue the cause as advocate-general, Otis refused and resigned his office.126 The

Boston merchants immediately approached him to represent their side, which he agreed to do pro bono. “The only principles of public conduct that are worthy of a gentleman, or a man,” Otis explained to the court, “are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country.”127

Otis’s oration challenging the writs of assistance became one of the most famous in U.S. history. More than half a century later, John Adams, who was present at the time, related, “Otis was a flame of fire!” His argument “breathed into this nation the breath of life.” Adams continued, “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.”128

The attack on general warrants was not an accident; nor was it a sideshow to the main event.

It lay at the heart of colonists’ concept of liberty, on the grounds of which the Revolution would be fought. It played a pivotal role in the founding of the country. Since that time, legal tracts on both sides of the Atlantic have attributed Otis’s argument with being a central moment in the shift to independence. In the 19th century, one law dictionary explained, “The issuing of [a writ 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.” They had been put into disuse,

125 W. TUDOR, THE LIFE OF JAMES OTIS 36 (1823). 126 2 THE LEGAL PAPERS OF JOHN ADAMS, supra note 104, at 139–44. 127 Brief of James Otis, Paxton’s Case (Mass. Sup. Ct. 24–26 Feb. 1761), Massachusetts Spy, Thu., 29 Apr. 1773 (vol. 3, no. 117), p. 1, cols. 1–2. 128 10 WORKS OF JOHN ADAMS, 247 (1811-1825).

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“owing to the eloquent argument of Otis before the supreme court of Massachusetts against their legality.”129 Another dictionary noted, “The use of the writ of assistance was one of the causes of the revolt of the American colonies.”130 Modern scholars similarly hail Otis’s argument as laying

“the foundation for the breach between Great Britain and her continental colonies.”131 As

Professor A.J. Langguth observed, “James Otis stood up to speak, and something profound changed in America.”132

What was it that Otis argued? He decried the very concept of a general warrant: “I will to my dying day oppose, 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.”133 For Otis, it appeared “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.”134 It was precisely this kind of power that had “cost one King of England his head and another his throne.”135

It mattered naught that British legislation appeared to allow such instruments. “Your Honors will find in the old books concerning the office of a justice of the peace precedents of general warrants to search suspected houses,” he noted. “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.” Only specific warrants—even under the

1662 Act, 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.”136

129 1 JOHN BOUVIER, A LAW DICTIONARY, ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA, AND OF THE SEVERAL STATES OF THE AMERICAN UNION, 708 (1885). 130 ENCYCLOPAEDIA OF THE LAWS OF ENGLAND, supra note 61. 131 LAWRENCE HENRY GIPSON, THE COMING OF THE REVOLUTION, 1763-1777, 39 (1989). 132 A.J. LANGGUTH, PATRIOTS: THE MEN WHO STARTED THE AMERICAN REVOLUTION 22 (1989). 133 Brief of James Otis, supra note 116. 134 Id. 135 Id. 136 Id.

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Otis went on to highlight the problems with general warrants. Directed against all persons,

“every one with this writ may be a tyrant”—and not just a tyrant, but one sanctioned by law.

Further, the writ had no end. Being perpetual, no return was required. This meant that no one would ever be held accountable, before a court, for its exercise. Otis noted that a man carrying the writ could order people to do his bidding, thus impacting others’ rights, and not just that of the individual being searched. “[O]ne of the most essential branches of English liberty,” Otis also noted, “is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.” A writ of assistance, “if it should be declared legal, would totally annihilate this privilege.”137

The writs created the potential for misuse of the power for personal purposes. Otis cited a contemporary case, where a customs officer had used this power to exact revenge on a constable before whom he had been called to answer for a breach of the Sabbath, or for swearing. “Every man,” Otis argued, “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 tumults and in blood.”138 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.”139

Influence of English Law on the American Founding

Paxton’s Case served as a stark colonial example of the rejection of general warrants. It underscored how over-reaching by the government undermined individual rights. In the course of his argument, Otis referenced to Coke, Hale, and the Magna Carta, even as he noted that similar

137 Id. 138 Id. 139 Id.

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failures of the Crown to stay within the prescribed limits of government, had led to the execution of Charles I, and the overthrow of James II—the first shot of the Revolution, indeed. His 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.140 Thomas Jefferson considered these treatises central to understanding American law.141 In his later years, Jefferson wrote that the

Institutes and Commentaries, “are possessed & understood by every one.” 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.”142 Seven months later he again noted, “Ld Coke has given us the first view of the whole body of law worthy now of being studies . . . Coke’s

Institutes are a perfect Digest of the Law as it stood in his day. . .”143

To be fair, Jefferson did not always perceive Coke with a spirit of good will. As a 19-year- old law student, Jefferson had lamented: “I am sure to get through old Cooke [sic.] 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, [sic.] for I am sure I never was so tired of an old dull scoundrel in my life.”144 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. These give a compleat [sic.] 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 acknowledge no subsequent statutory alterations.”145 He later commented on Coke, “a sounder

140 See, e.g., Brian J. Moline, Early American Legal Education, 42 WASHBURN L. J. 775, 786 (2002-03) (“[B]y far the most studied text in colonial America was the first volume of Coke’s Institutes.”), and text, infra. 141 See also Thomas Jefferson Recommends a Course of Study, 1 The History of Legal Education in the United States: Commentaries and Primary Sources (Steve Sheppard ed. 1999) (Jefferson recommending Blackstone and Coke). 142 Letter to Thomas Cooper, from Monticello, Jan. 16, 1814, Library of Congress list of Jefferson’s books, pp. 218. 143 Letter to John Minor, August 30, 1814 (Library of Congress). 144 Letter to John Page, from Fairfield, Dec. 25, 1762 (Library of Congress). 145 Letter to Dabney Terrell, Feb. 26, 1821 (Library of Congress).

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Whig never wrote more profound learning in the orthodox doctrine of British liberties.”146

Jefferson assisted others by providing copies of the mainstays in English legal thought, 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.147

Jefferson’s library contained all of the volumes heretofore discussed. In addition to Coke’s

Institutes, he had two copies of Sir Matthew 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

Crompton’s L’Authoritie et Iurisdiction des Courts de la Maiestie de la Roygne (1594), 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.148 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

1776.149

Jefferson’s reliance on scholars who rejected general warrants is notable, not least because his grounding in English legal treatises and case law became cemented into American law.

146 Kevin Ryan, Lex et Ratio: Coke, the Rule of Law and Executive Power, VERMONT BAR J. 9 (2005). 147 University of Virginia has a copy that has his bookplate and an inscription inside the front board: “Given by Thos. Jefferson to D. Carr, 1806.” 148 See, e.g., Letter to Governor John Tyler, Monticello, May 26, 1818 (Library of Congress)(“ “I have long lamented with you the deprication of law science. The opinion seems to be that Blackstone is to us what the Alcoran is to the Mahometans, that every thing which is necessary is in him, & what is not in him is not necessary. I still lend my counsel & books to such young students as will fix themselves in the neighborhood. Coke’s institutes, all, & reports are their first, & Blackstone the last book, after an intermediate course of 2. Or 3. Years. It is nothing more than an elegant digest of what they will then have acquired from the real fountains of the law.”). 149 Jefferson’s library also held a copy of Sir William St. George Tucker’s commentary on Blackstone, which contained notes of reference between the Commentaries and the Laws of the Federal Government of the United States (1803) (“The case of general warrants, under which term all warrants not comprehended within the description of the preceding article may be included, was warmly contested in England about thirty or thirty-five years ago, and after much altercation they were finally pronounced to be illegal by the common law. The constitutional sanction here given to the same doctrine, and the test which it affords for trying the legality of any warrant by which a man may be deprived of his liberty, or disturbed in the enjoyment of his property, can not be too highly valued by a free people.”) Jefferson also had Edmund Wingate, “An exact abridgement of all the statutes in force and use from the beginning of Magna Charta. Started by Edmund Wingate of Grays Inn, Esq; and since continued under their proper titles alphabetically down to the year 1689. He also had Joseph Washington’s supplement, which was an exact abridgment of all the statutes of King William and Queen Mary, and King William III and Queen Anne, in force and use. Started by Joseph Washington of the Middle-Temple, Esq; continued by Henry Boult of Grays-Inn, to the dissolution of the first Parliament Apr. 15, 1708.

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Between 1776 and 1778, Thomas Jefferson, George Wythe, and Edmund Pendleton re-wrote the laws of Virginia. To Jefferson fell the responsibility of incorporating English common law into the statutory regime.150

The same English legal tracts central to Jefferson’s training and approach were foundational to the Founders’ education and common discourse. John Adams’s study of the law included reading Coke’s Institutes, as well as William Hawkins’ Pleas of the Crown.151 He referred to

Coke as “the oracle of law,” stating that whoever could master Coke could become “master of the laws of England.”152 John Jay and Theophilus Parsons similarly relied on Coke.153 Blackstone’s

Commentaries were extremely well-received in the new world, with some 2500 copies purchased along the eastern seaboard prior to the Revolution.154

The number of prominent colonists and early American leaders who read or had copies of prominent English legal scholars is too extensive to list. Even a few examples will suffice: John

Adams, Samuel Sewall, Francis Dana, and Robert Treat Paine from Massachusetts Bay Colony;

St. George Tucker, George Wythe, William Byrd and Robert Carter in the Colony of Virginia;

John Jay, James Alexander, James Montgomery, and Cadwalader Colden in New York; and

Gouverneur Morris, Benjamin Chew, and James Wilson in Pennsylvania.155 William Penn

150 Jefferson focused on the common law and statutes down to the Reformation, or end of the reign of Elizabeth I. Wythe did the subsequent statutes. Pendleton focused on Virginia laws. When the men gathered to go over the result, they found that Pendleton had not simplified the laws, merely copying them out verbatim and omitting certain laws. So Wythe and Jefferson did his part, “as well as the shortness of the time would admit, and we brought the whole body of British statutes, & laws of Virginia into 127 acts, most of them short.” The aim was to eliminate redundancies. Jefferson letter to Skelton Jones, July 28, 1809, pp. 261-262. 151 2 WORKS OF JOHN ADAMS, Diary entry of 26 Nov. 1760, 103 (1760). 152 McKirdy, 133, cited in Moline, supra note 129, at 787. 153 CATHERINE DRINKER BOWEN, THE LION AND THE THRONE 443 (1975). 154 Moline, supra note 129, at 790; see also id. at 791 (“Many nineteenth-century lawyers relied exclusively on the Commentaries to the exclusion of any other authorities.”) 155 Historic library catalogs from the late 1600s, 1700s, and early 1800s, and listings of the books held by the private libraries of the Founders, offer a glimpse into the ubiquitous nature of English legal scholars in the new world. A national bibliography of books imported in the eighteenth century, for instance, found dozens of copies of Blackstone’s Commentaries, Coke’s First institute, Hale’s History of the Pleas of the Crown and Pleas of the Crown, and Hawkin’s Treatise of the Pleas of the Crown. Herbert A. Johnson, Imported Eighteenth Century Law Treatises in American Libraries, 1700-1799 (1798). Another bibliography similarly lists dozens of copies of the same volumes. William Hamilton Bryson, A Census of Law Books in Colonial Virginia (1978). George Wythe and St. George Tucker, the first two law professors at the College of William and Mary (appointed in the late 1700s), encouraged their students to read Blackstone, Coke, and Hale. Williams and Mary Law Library: A History, http://law.wm.edu/library/about/history/. According to a list of books that may have been part of George Wythe’s personal collection, https://digitalarchive.wm.edu/handle/10288/13433, he had a copy of Blackstone’s Commentaries, Coke’s Institutes,

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himself repeatedly had been on the receiving end of general warrants, which he condemned in his

1670 treatise, People’s Ancient and Just Liberties Asserted.156

The Founders’ reliance on English law and English 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 they held under the English Constitution. Simultaneously, the Founders closely followed the evolution of the common law and contemporary developments in England.

In both regards, general warrants lay beyond the pale.

Colonial newspapers covered the sagas of John Entick and John Wilkes with an enthusiasm paralleling that of contemporary Downton Abbey fans. Papers in New Hampshire,157 New

York,158 Massachusetts Bay,159 Connecticut,160 Rhode Island,161 Georgia,162 and North Carolina,163

Hale’s History of the Pleas of the Crown, and Hawkins’ Treatise of the Pleas of the Crown. According to a collection of St. George Tucker’s books owned by the College of William & Mary Library, he had copies of Blackstone’s Commentaries (1791 edition) and Hale’s History of the Pleas of the Crown. Dartmouth College’s first library catalog, printed in1809, included two copies of Blackstone’s Commentaries. At Harvard University, founded in 1636, by 1723 the library had copies of Coke’s Institutes, and by the end of the century, the library had acquired all of Blackstone’s works, Coke’s Institutes, Hale’s History of the Pleas of the Crown, and Hawkins’s Pleas of the Crown. According to the current rare books librarian at the University of Pennsylvania, the estate of James Wilson included copies of Coke’s Institutes and Hawkins’s Pleas of the Crown. The Library Company of PHiladelophia, founded in 1731, had, by 1741, acquired Hawkins’s Pleas of the Crown, the First part of Coke’s Institutes, and Hale’s History of the Pleas of the Crown. By 1770 it had added Blackstone’s Commentaries. See also CUDDIHY, supra note 48, at 189; Moline, supra note 129, at 790 (discussing law books—including Blackstone and Coke—commonly used by early American lawyers); Charles Warren, A Colonial Lawyer’s Education, in A History of the American Bar (1990) (discussing books, including Coke and Blakstone, used by colonial lawyers); Paul M. Hamlin, The Law Student’s Curriculum and Library Facilities, in Legal Education in Colonial New York, 64-65 (1970)(discussing colonial law books and law collections, and information on orders for copies of Blackstone); Ryan Patrick Alford, The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens, 2011 Utah L. Rev. 1203 (2011) (discussing the influence of Blackstone, Coke, and Hale on the founding generation); Charles R. McKirdy, The Lawyer as Apprentice: Legal Education in Eighteenth Century Massachusetts, 28 J. Legal Educ. 124, 128-133 (1976) (discussing the law books available to early American lawyers and readings that would be assigned to apprentices, such as Coke, Hawkins, and Blackstone); Clement Eaton, A Mirror of the Southern Colonial Lawyer: The Fee Books of Patrick Henry, Thomas Jefferson, and Waightstill Avery, 8 Wm. & Mary Q. (3d Series) 520, 521-522 (1951) (discussing law books used by early lawyers, noting that Jefferson recommended Coke’s Institutes and Blackstone’s Commentaries). 156 In addition to residing in private collections, English legal treatises 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. See, e.g., SIR MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN, First American Edition, with Notes and References to Later Cases by W.A. Stokes and E. Ingersoll of the Philadelphia Bar, in Two Volumes, 1847. 157 See, e.g., NEW-HAMPSHIRE GAZETTE AND HISTORICAL CHRONICLE, July 1, 1763 at 3. (Noting Wilkes’s arrest by four of his Majesty’s Messengers, conduct to Lord Halifax’s house and from there to commitment as a prisoner in the Tower, and subsequent examination of Wilkes’s papers by the Solicitor of the Treasure and the Secretary of the Treasury); NEW-HAMPSHIRE GAZETTE AND HISTORICAL CHRONICLE, London, Sept. 2, 1763 at 2. 158 See, e.g., NEW-YORK GAZETTE, June 20, 1763, at 2 (noting, inter alia, that on May 3 John Wilkes “was taken into Custody by four of his Majesty’s Messengers, and committed Prisoner to the Tower by the Secretaries of State, being charged with writing a Paper published in the North Briton.”) 159 See, e.g., BOSTON POST-BOY, June 20, 1763, at 4 (John Wilkes, MP for Aylesbury, “was taken into Custody by four of his Majesty’s Messengers, & coaducted to his Lordship’s House, from thence was committed Prisoner to the Tower,

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provided play-by-play recounts of Wilkes’s arrest, the search of his home, and his subsequent imprisonment in the Tower. 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.”164 Papers recounted how the public cheered, and that 10,000 people walked with him from the Tower to his home.165 Colonial periodicals printed, verbatim, the letters that Wilkes subsequently sent to the

British Secretaries of State, demanding return of his stolen papers.166 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. . . but the being charged with writing a Piece in the North Briton of Saturday the 23d of April last; all his Papers were seized, and afterwards deposited in Lord Halifax’s Office: And we hear that the Papers are under the Examination of Philip Carteret Webb, Esq; Solicitor of the Treasury, and Lovel Stanhope, Esq; Law-Clerk of the Secretary of State’s Office. Mr. W. it is said, disputed the Authority of the Messengers the first Time of their coming to his House.”); Boston Evening-Post, June 27, 1763, at 2 (“Though John Wilkes, Esq; is discharged from his imprisonment, on account of his being a member of parliament, yet he is not freed form the accusations against him.”); BOSTON NEWS-LETTER, June 30, 1763, at 3 (“An authentick Account of the Proceedings against John Wilkes, Esq. . . Containing all the Papers relative to this interesting Affair, from that Gentleman’s being taken into Custody by his Majesty’s Messengers, to his Discharge t the Court of Common Pleas. With an Abstract of that precious Jewel of an Englishman, The Habeas Corpus Act. Addressed to all Lovers of Liberty.”) 160 NEW-LONDON SUMMARY, July 1, 1763, at 1 (Writing that Wilkes was discharged from the Tower and “followed to his own House amidst the loud Acclamations of above 10,000 People, who cry’d out, Wilkes and Liberty! He was immediately waited on by Lord Temple, and many other Noblemen and Gentlemen, and great Rejoicings were made in many Parts of the Town. Mr. Wilkes immediately wrote several Letters oto the Earls of Egremont and Halifax, charging them with having robb’d his House, and insisting upon their returning the stolen Goods; Mr. Wilkes was going to Prosecute the two Secretaries of State for false Imprisonment, and has laid his Damages against each at fifty Thousand Pounds.”) 161 PROVIDENCE GAZETTE AND COUNTRY JOURNAL, July 2, 1763, London Intelligence, at 1-2 (carrying article on Wilkes’ arrest as well as the text of his letters to the Secretaries of State). 162 See, e.g., THE GEORGIA GAZETTE (Savannah) July 21, 1763, at 3; THE GEORGIA GAZETTE (Whitehall) July 28, 1763, at 2. 163 See, e.g., THE NORTH-CAROLINA MAGAZINE (London) Nov. 9, 1764, at 1. 164 BOSTON POST-BOY, June 27, 1763, at 3. 165 See, e.g., NEW-YORK GAZETTE (London) July 4, 1763, at 2; NEW-YORK MERCURY, July 4, 1763, at 2. 166 See, e.g., BOSTON EVENING-POST, June 27, 1763, at 2 (“On my return here from Westminster-hall, where I have been discharged from my commitment to the Tower under your Lordships warrant, I find that my house has been robbed, and am informed that the stolen goods are in the possession of one or both of your Lordships, I therefore insist that you do forthwith return them.”) PROVIDENCE GAZETTE AND COUNTRY JOURNAL, July 2, 1763, London Intelligence, at 1-2 (reprinting both the letter noted previously as well as a second, “Little did I expect when I was requiring from your Lordships what an Englishman has a right to, his property taken from him, and said to be in your Lordships possession, that I should have receiv’d in answer, from persons in your high station, the expressions of indecent and scurrilous applied to my legal demand. The respect I bear to his Majesty, whose servants it seems you still are, tho’ you stand legally convicted of having in my violated, in the highest and most offensive manner, the liberties of all the Commons of England, prevents my returning you an answer in the same Billingsgate language. If I considered you only in your private capacities, I should treat you both according to your deserts; but where is the wonder that men, who have attacked the sacred liberty of the subject, and have issued an illegal warrant to seize his property, should proceed to such libelious expressions? You say that such of my papers shall be restored to me, as do not lead to a proof of my guilt. I owe this to your apprehension of an action, not to your love of justice; and in that light, if I can believe your Lordships’ assurances, the whole will be returned to me. I fear neither your prosecution nor your persecution; and I will assert the security of my own house, the liberty of my person, and every right of the people, not so much for my own sake, as for the sake of every one of my English fellow-subjects.”). See also NEWPORT MERCURY, Copy of a Letter from John Wilkes, Esq.; Member of Parliament, to the Secretaries of State, July 4, 1763, at 2.

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sitting justice refused to issue the said warrant.”167 Throughout the summer and autumn of 1763, and into the winter and spring of 1764, papers continued to cover the case in great detail.168

Songs were written in his honor. Wilkes was a célébrité.169

Colonial media embraced Wilkes’s fight, and that of John Entick, in the cause of freedom.

Boston papers reported that the verdict in Wilkes v. Wood, condemned “the dangerous practice of issuing general and unconstitutional warrant,” stating, “no age has produced a determination of more general and extensive consequence to every free born ENGLISHMAN.”170 In North

Carolina, a local paper praised the trial of Entick v. Carrington: “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.” 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.”171 Even bequeaths 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.”172

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 further polarized British public opinion.173 Adulation may have

167 The Massachusetts Gazette, June 30, 1763, p. 2. See also Boston Post-Boy, London, July 4, 1763, p. 1. 168 See, e.g., BOSTON GAZETTE (London) Apr. 2, 1764, at 2; Boston News-Letter, London, Apr. 26, 1764, p. 2; Boston Post-Boy & Advertiser, Madrid, Apr. 30, 1764, p. 2; New-York Mercury, London, July 5, Sept. 24, 1764, p. 1. 169 See, e.g., New-York Gazette, London, February 6, 1764, p. 2 (Recounting of his duel with Samuel Martin, former Secretary of the Treasury: “At the first Attack both their Pistols, it is said, missed Fire: At the second, Mr. Martin’s did the same; upon which Mr. Wilkes generously retarded discharging his Pistol, and offered Mr. Martin the Choice of either of his Pistols, which he refused: They then turned back to Back; and, upon facing again, Mr. Martin discharged his Pistol, the Ball from which entered Mr. Wilkes’s Belly, about Half an Inch below the Navel, and sunk obliquely on the Right Side down towards the Groin: Upon which Mr. Wilkes said, Mr. Martin, take Care of yourself, for you have done for me. Mr. Martin replied, he would get him what Assistance he could; and, perceiving a Chariot at a Distance, ran up to it.”) See also 170 BOSTON GAZETTE, Sept. 19, 1763, (no. 441), at 2, cols. 2-4. 171 THE NORTH-CAROLINA MAGAZINE, supra note 151, at 1, 24. (Note that the magazine also mentions the case of John Wilkes). 172 THE NORTH-CAROLINA MAGAZINE, Oct. 19, 1764, at 1, 21. 173 In addition to the previously cited cases, see, e.g., Huckle v. Money, 95 Eng. Rep. 768 C.P. 1763; Rex v. Wilkes, 95 Eng. Rep. 737 C.P. 1763; Lindsay v. Money (C.P. 1763); Rex v. Williams (1765) Eng. Rep. 313 (K.B.); 1 Bl. W. 541;

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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 certainly the exercise of promiscuous search and seizure was an important element in the equation.

News reached the colonists by media and post. Whilst 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.” He 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.174

Deeply cognizant, then, 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, and the effort to address this deficiency by the introduction of a new statutory provision, did little to stem the tide.175 The vehicle chosen by Westminster was 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 or seize goods prohibited to be imported or exported. . . or for which any duties are payable, or ought to have

see also JAMES OLDHAM, 2 THE MANSFIELD MANUSCRIPTS AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY 826-28 (1992). See also CUDDIHY, supra note 48, at 443; Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICHIGAN L. REV., 547, 565, fns. 21 -25 (2000); 2 JAMES OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY 790 (1992). 174 Benjamin Franklin to William Franklin, London, Apr. 16, 1768, Benjamin Franklin, 6 Works 277 (1808-18). 175 Opinion of Attorney General De Grey upon Writs of Assistance, re: 7th Geo. 3d, Ch. 46, Aug. 20, 1768, available at http://press-pubs.uchicago.edu/founders/documents/amendIVs2.html.

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been paid.”176 The legislation provided the highest court in each colony the authority to issue writs of assistance to enable customs officers to perform this function.177 The language of the statute did not require that writs incorporate general terms of search and seizure. As a matter of practice, colonial courts tended, when they did grant writs under the statute, to make them specific, as they rejected general warrants as illegitimate.178 Practice thus embraced Otis’s position.179

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 of a Pennsylvania Farmer, a series of essays decrying the

Townshend Acts. “By the late act,” he wrote, ‘the officers of the customs are “impowered [sic.] to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods,’ etc. on ‘writs granted by the superior or supreme court of justice, having jurisdiction within such colony or plantation respectively.’” 180 Dickinson labeled such authority an “engine of oppression.”

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.”181 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 wholly dependent upon the Crown for their positions, and

176 AN ACT FOR GRANTING CERTAIN DUTIES IN THE BRITISH COLONIES AND PLANTATIONS IN AMERICA, § 10 (Nov. 20, 1767). 177 Id. 178 See, e.g., Frisbie v. Butler, Kirby 213 Conn. (1787) (“[T]he warrant in the present case, being general, to search all places, and arrest all persons, the complainant should suspect, is clearly illegal.”) 179 For thoughtful discussion of how this transpired in each of the colonies, and the evolution of judicial consensus against general warrants, see CUDDIHY, supra note 48, at 506-536. 180 Dickinson, Letter No. 9, available at http://oll.libertyfund.org/titles/690. 181 Id.

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responsible for issuing the writs in the first place.182 That such writs were open to arbitrary exercise, and that property rights were not well protected, added fuel to the fire.

State Rejection of General Warrants

In their opposition to general warrants and writs of assistance, the founding generation went beyond merely objecting to their use in three important ways. First, it established a positive right: the right to be secure in one’s home, papers, and effects, against unreasonable search and seizure.

Unreasonable was understood as contrary to reason, or, in the context of legal prose, contrary to the common law. General warrants, being contrary to common law (unreasonable), were illegal.

New states therefore outlawed the use of general warrants as a concomitant of establishing the right to be secure in one’s home, papers, and effects. Second, the Founders embraced specific warrants in place of general warrants, as the only legitimate instrument that could be used to intrude on the sanctity of one’s home and belongings. Third, states adopted a series of requirements that applied to specific warrants, without which they would be considered invalid.

These changes became anchored into law in the nascent declarations of rights and state constitutions—well before the Fourth Amendment cemented them into the U.S. Constitution.

The fifth Virginia Convention took the first step along this path.183 In May 1776, a veritable

Pantheon of the American Republic met to chart the future of the state. Patrick Henry, George

Washington, Edmund Pendleton, George Mason, George Wythe, Richard Henry Lee, Thomas

182 Id. 183 New Jersey, New York, Georgia, and South Carolina were the only states not to issue or include a declaration of rights in their new constitutions. (The New Jersey Constitution of July 2, 1776, written in the shadow of George Washington’s loss in New York which put the security of territory at risk, was a hastily-conceived document, written in five days and adopted in two. There is no statement of rights in the preface. Instead, it lays out the structure of the government, includes provisions meant to protect freedom of religion, and states that the common law of England and colonial statutory provisions will remain in force until altered by future acts of the state legislature. New Jersey Const., July 2, 1776. New York’s Constitution similarly lacked any prefatory statement of rights. New York Const., Apr. 20, 1777. Georgia adopted a temporary constitution for the revolutionary government, with the first state constitution issued Feb. 5, 1777. South Carolina, similarly introduced a temporary constitution in 1776, amended it in 1778. Neither Georgia nor South Carolina included either a declaration of rights in the prefatory material, or provisions related to search or seizure, although they did address other rights, such as jury trial, in the text.) Two states (Connecticut and Rhode Island) did not adopt a new constitution prior to the 1787 Constitutional Convention, instead, operating under their previous Charter and colonial statutes.

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Jefferson, and other delegates, met in Williamsburg. Sitting in the House of Burgesses under the somber gaze of a portrait of George III, the delegates made three monumental decisions. They voted to draw up a declaration of rights, draft a constitution establishing a new republic, and form alliances with other colonies to create a new country. To George Mason fell the responsibility of writing the Virginia Declaration of Rights and, with James Madison, the Virginia Constitution.

These documents became foundational for other states’ constitutions, for the United States

Constitution, and for the Bill of Rights.

George Mason approached the declaration by underscoring the natural rights of man.

Drawing heavily from political theories developed by Locke and Montesquieu, and building on

English history and the British Constitution while being cognizant of colonial experience, Mason committed to writing the idea that individuals hold certain rights, which limit what the government can do. Consent, the right to jury trial, freedom of the press, and freedom of religion all featured in his declaration, as did the right to be secure against “grievous and oppressive” search and seizure. To accomplish the last, Mason outlawed general warrants and laid down the particulars for what would be necessary for a warrant to issue.

The Virginia Declaration of Rights stated, “That general 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.”184 For a warrant to issue, evidence of a crime, the name of the person on whom the warrant would be served, and particularity with regard to the illegal activity for which the person was being sought or the search being conducted, would be required. On June 12, 1776, the fifth Virginia

Convention adopted the declaration.185

184 VIRGINIA DECL. OF RIGHTS, § 10 (June 12, 1776). For seventy-five years, the text remained unaltered. In 1829 it became prefixed, as Article I of the Virginia Constitution. 185 Throughout U.S. history, scholars have noted the relationship between this clause and the Fourth Amendment of the U.S. Constitution. See, e.g., Leonard C. Helderman, The Virginia Bill of Rights, WASH. & LEE L. REV. 225, 231 (1941),

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Pennsylvania was the next state to step forward. In July 1776, Benjamin Franklin, George

Bryan, and James Cannon, along with the assistance of Thomas Paine and others, drafted a new state constitution. The document incorporated a detailed declaration of rights as Article I.

Adopted in September 1776, the Pennsylvania constitution has come to be seen as one of the most democratic documents of the founding era—not least because of the universality of the vote and the structure of government adopted. It also included “security from searches and seizures” as a right guaranteed to the people.186 The relevant clause read, “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation, subscribed to by the affiant.”187 As discussed, below, in relation to the Massachusetts’ constitution, by outlawing

“unreasonable” search and seizure, Pennsylvania outlawed general warrants, even as it established additional requirements for specific warrants to be considered valid.188

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.”189 The state constitution went on to refer to the declaration of rights, stating, “no article of the declaration of rights and fundamental rules of this State, agreed to by this convention . . . ought ever to be violated on any pretence [sic.] whatever.”190

fn. 21 (“Though this section does not contain the ‘unreasonable searches and seizures’ terminology of the Fourth Amendment to the Federal Constitution, the same field is in all probability covered by the two provisions.”) 186 PENNSYLVANIA DECLARATION OF RIGHTS, §8 (Sept. 28, 1776). 187 Id. 188 Id. (“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by an affiant.”) 189 DELAWARE DECLARATION OF RIGHTS, §17 (Sept. 11, 1776). (“That all warrants without oath to search suspected places, or to seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend all persons suspected, without naming or describing the place or any person in special, are illegal and ought not to be granted.” 190 DELAWARE CONSTITUTION OF 1776, Article 30, adopted Sept. 20, 1776.

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Overlapping with deliberations in Pennsylvania and Delaware, Maryland delegates met between August and November 1776, at which time they drafted and approved the first state constitution. A Declaration of Rights constituted the first section. It, too, emphasized search and seizure. The corresponding clauses took several phrases from the Virginia document, further shaping it to fit Blackstone’s complete rejection of general warrants. Article 23 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.”191 This language went beyond Virginia 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, 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 entitled, “General Warrants,” in which it made their use for arrest, search, or seizure illegal, on the grounds that the instruments were “dangerous to liberty.”192

The Massachusetts Constitution similarly objected to the use of general warrants. The language it adopted, like that of New Hampshire, is similar to the language that Madison used in what became the Fourth Amendment. As such, it offers an important insight into the meaning of the words. John Adams wrote the document.193 His choice of language reflected the legal legacy

191 MARYLAND DECL. OF RIGHTS, § 23 (Nov. 3, 1776). 192 NORTH CAROLINA DECLARATION OF RIGHTS, §20 (Dec. 18, 1776). (“General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.”) 193 8 PAPERS OF JOHN ADAMS 228-71 (Gregg L. Lint et al. eds., 1989) (final text being consistent with Adams’s draft, with exception of change from “man” to “subject”). Although Lasson was not aware of the authorship of the Massachusetts provision in 1937, scholarship has since definitively established his role. See, e.g., Levy, Original Meaning, at 238; Davies, supra note 161, at 685, CUDDIHY, supra note 48, at 1247-48, 1296-97.

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that he inherited, as well as contemporary understandings of the illegality of general warrants and the requirements of specificity.

Adams began by establishing a right: “Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”194 The word “unreasonable” carries a particular meaning in this context. By his own account, Adams had read Coke, Hawkin’s Pleas of the Crown, and other English legal treatises.195 In 1610 Coke had asserted in dicta in Dr. Bonham’s Case that a statute was void where it was “against common right and reason,” that is, it violated the basic principles of common law.196 Similarly, in 1628, Coke spoke in Parliament of general warrants as being

“against reason.”

Adams’s use of “unreasonable” as meaning “against reason” reflected a common philosophical and legal practice at the time. John Locke, for instance, in a statement referring back to Dr. Bonham’s Case, converted “against reason” to “unreasonable.”197 Blackstone, too, altered Coke’s phrase of “against reason” to “unreasonable.”198

It was not just to Coke and Blackstone that 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 as “unreasonable.”199 His more lengthy notes of

194 8 PAPERS OF JOHN ADAMS, supra note 181, 228-71. 195 Moline, supra note 129, at 783. 196 DR. BONHAM’S CASE, 8 Coke Rep. 113, 118a, 77 Eng. Rep. 646, 652-53 (C.P. 1610). 197 JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT, §§ 12, 13 (Peter Laslett ed., OUP 1988) (“[I]t is unreasonable for Men to be Judges in their own Cases.”). 198 1 WILLIAM BLACKSTONE, 91 (1753). 199 See John Adams’s “Abstract” of Otis’s argument written shortly afterwards. 2 LEGAL PAPERS OF JOHN ADAMS, supra note 104, at 144. Adams’s notes of Otis’s argument further state: “As to Acts of Parliament. An Act against the Constitution is void: an Act against natural Equity if void: and if an Act of Parliament should be made, in the very Words of this Petition, it would be void. The executive Courts must pass such Acts into disuse. 8 Rep. 118. From Viner. Reason of the Common Law to Control an Act of Parliament.” Id. at 123-34, 145-35. The citation to “8 Rep 118 is to Coke’s opinion in Bonham’s Case; Viner, in turn, refers to Charles Viner’s treatment of Coke’s dictum, see 23 CHARLES VINER, A GENERAL ABRIDGEMENT OF LAW AND EQUITY (1741-53). See particularly 19 VINER at 512-13, referring to Coke’s argument in Bonham’s Case. 8 Rep 118 is a citation to the page where Coke stated that a Parliamentary Act was “void” if it is “against common right and reason.” This point is underscored by the final line “Reason of the Common Law to control an Act of Parliament”, with “unreasonable” thus a violation of the Common Law. For an excellent discussion and further analysis of this point see Davies, supra note 161, at 690-91.

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the argument draw the point even more forcefully. In them, he writes, “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.” He goes on to cite to the specific page in Coke’s opinion in Dr.

Bonham’s Case, where he states an act as “void” where it is “against common right and reason.”200 He then notes Otis’s statement that the “reason of the Common Law [is] to control an

Act of Parliament.”201

Legal tracts of the day made a similar link between unreasonableness and general warrants.

The Law of Arrests, published in London in 1742, noted “the Unreasonableness, and seeming

Unwarrantableness of [general warrants].” This language was consistent with Johnson’s

Dictionary, the principal English lexicon of the time, which defined “unreasonable” as “[n]ot agreeable to reason.”202 This 18th century meaning differs from the modern, relativistic sense of the word, which suggests that the behavior in question is inappropriate under the circumstances.

The Oxford English Dictionary, for instance, defines “reasonable” as “Within the limits of what it would be rational or sensible to expect; not extravagant or excessive; moderate.”203 Unreasonable is thus not within sensible limits, or “excessive in amount or degree.”204

The 18th century construction is a more formalistic framing; the 21st century understanding, more pragmatic. The former suggests reasonable as logical and consistent, and unreasonable as illogical or inconsistent—in this context, inconsistent with legality, or illegal.

Johnson’s Dictionary also defined the term to mean “exorbitant,” or “claiming or insisting on more than is fit.” It defined “exorbitant,” in turn, as deviating from the established rule.205

Unreasonable thus carried a quality that meant going outside the boundaries of a settled rule—in

200 2 LEGAL PAPERS OF JOHN ADAMS, supra note 104, at 144. Davies, supra note 161, at 690. 201 Id. 202 JOHNSON’S DICTIONARY (1792). 203 Oxford English Dictionary [online, accessed March 3, 2015], http://www.oed.com/view/Entry/159072?redirectedFrom=reasonable& 204 Id. 205 JOHNSON’S DICTIONARY (1792).

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this case, the common law tenet making general warrants void.206

The Massachusetts’ Constitution went on to refine what would be considered “unreasonable,” even in the context of a specific warrant: “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.”207

By using “therefore” in this way, Adams clarified that it was precisely to prevent violation of the right against unreasonable search and seizure, that general warrants, and specific warrants lacking an oath, evidence, and particularity with regard to the persons to be arrested or places to be searched, would not be allowed. The document then continued with an additional phrase, “and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.”208

The New Hampshire Constitution lifted the clauses used in the Massachusetts Constitution almost verbatim.209 Vermont, in turn, in the first chapter of its Constitution, established a series of rights. Like Massachusetts and New Hampshire, Vermont began with a statement: “The people,” it declared, “have a right to hold themselves, their houses, papers, and possessions, free from search or seizure.” 210 Security meant respect for the sanctity of one’s home, person, papers,

206 There is a second reading of “unreasonable” from the 18th century that underscores the meaning. It was also used to suggest an excessive quantity, such as an unreasonable amount of time, or unreasonable distress. It was thus an issue of degree. See, e.g., Leach v. Money; Hening, note 25 at 421-22; Davies, supra note 161, at 688, n. 390. Johnson’s Dictionary offered one further definition of unreasonable that captured this quality: “[g]reater than is fit; immoderate.” In the meaning of the times, therefore, Adams’s use of “unreasonable” suggested a quality of being against reason and therefore violative of the basic principles of the law (precisely the manner in which general warrants had been described), as well as excessive, a meaning that was consistent with the contemporary manner in which general warrants were viewed. Davies, supra note 161, at 688. 207 MASS. CONST. of 1780, pt. 1, art. XIV. 208 Id. 209 N.H. CONST. of 1784, art. XIX. (“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. 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; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.”) 210 VERMONT CONSTITUTION, Chapter 1, A Declaration of the Rights of the Inhabitants of the State of Vermont, §11, July 8, 1777. (“That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and

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and possessions. Like Adams’s clause in the Massachusetts document, it followed this clause with “therefore,” and then laid out a series of conditions that would have to be satisfied for a warrant to issue: it must be specific and limited, supported by oath or affirmation and sufficient evidence of a crime.211 Warrants lacking particularity violated the right.

The importance of these state declarations and Constitutional documents can hardly be overstated.212 They transformed a colonial grievance regarding overreach by the Crown, into a written, constitutional guarantee of an individual right. They reflected the Founders’ understanding of general warrants as the very definition of an unreasonable search and seizure, which violated the right of individuals to be secure. As such, general warrants were illegal. And they demanded that in order to protect the security of one’s person, papers, and property, against government overreach, where warrants did issue, they contained sufficient particularity to prevent abuse of power.

Ratification and Reservation

In 1787 the constitutional convention met to address the deficiencies of the Articles of

Confederation. The document had established a weak national government with, essentially, no executive. Although a triumph for those who feared the tyranny of George III, the Articles had failed to provide adequate means to stem severe economic downturn. The national government had no power to protect trade among the new states, and it fell to Congress to enter into treaties and alliances with other countries. Without a uniform system of currency, saddled by debt, and lacking the ability to raise revenue, the national government proved unable to pay its accounts or to counteract inflation. Violence and civil unrest threatened the peace. The weak federal

whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her, or their property, not particularly described, are contrary to that right, and ought not to be granted.”) 211 Id. 212 See EMILY ZACKIN, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY STATE CONSTITUTIONS CONTAIN AMERICA’S POSITIVE RIGHTS (2013) (arguing that the state governments served as the original repository for the protection of individual rights).

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structure also meant a lack of central leadership. The country had no national independent judiciary, no head of government to handle foreign affairs, and no locus for addressing internal and external threats. Further beset by legislative inefficiencies stemming from the ability of five states to block any law and a cumbersome amendment process (requiring unanimity), the government floundered.213

The first aim of the framers at Philadelphia was to create a more powerful national government than had existed under the Articles of Confederation. But the provision of greater power engendered concern that the new authorities could override the rights previously secured by state constitutions for the people. The framers designed the structure itself—reflecting the limiting principle of enumerated powers, creating a delicate balance between the different functions of the national government, incorporating federalism, carefully delineating broad representation, and ensuring a republican form of government—to protect rights. But concern percolated through the structural protections as to whether they would be sufficient to restrain a stronger national government.

Five days before the constitutional convention adjourned, George Mason, whose reputation for protecting his own privacy was rivaled perhaps only by that of George Washington, expressed his wish that the constitution “had been prefaced with a Bill of Rights.” He offered to second any motion made for that purpose, as “It would give great quiet to the people.”214 He did not think that it would take more than a few hours to draft. Elbridge Gerry supported Mason and promptly moved for a committee to prepare the document. Mason seconded the motion. But Roger

Sherman objected, noting that the state declarations of rights were not repealed by the

213 For prominent histories of the Articles of Confederation see ROBERT W. HOFFERT, A POLITICS OF TENSIONS: THE ARTICLES OF CONFEDERATION AND AMERICAN POLITICAL IDEAS (1992); MERRILL JENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION, 1781-1789 (1950); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969). 214 2 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 587 (1911). On August 31, 1787, Mason had told the convention that he would “sooner chop off his right hand than put it to the Constitution as it now stands.” He scribbled a list of “objections” on the back of a report prepared by the committee of style, which included the absence of a bill of rights; PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788 43-46 (2010).

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Constitution. Untouched, they would prove sufficient for the future protection of individual rights. 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.215

Gerry and Mason remained steadfast in their concern. Gerry later explained to the

Massachusetts state legislature, “My principal objections to the [constitution] are . . . that the system is without the security of a bill of rights.”216 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.”217

The decision not to include a bill of rights contributed to growing concern about the new powers afforded the federal government. In September 1787, Richard Henry Lee, from Virginia, and Melancthon Smith, from New York, attempted to induce Congress to attach a bill of rights to the Constitution prior its circulation to the states. “Universal experience,” he stated, demonstrated the necessity of “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.” The constitution, therefore, should “be bottomed upon a declaration, or Bill of

Rights, clearly and precisely stating the principles upon which the Social Compact is founded.”218

Amongst these was protection against unreasonable search and seizure of citizens’ “papers,

215 FARRAND, supra note 198, at 587. 216 Letter from Elbridge Gerry to the Hon. Samuel Adams, Esq., President of the Senate, and the Hon. James Warren, Esq., Speaker of the House of Representatives, of Massachusetts, Massachusetts State Legislature. 217 Objections of the Hon. George Mason, one of the Delegates From Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for Not Signing the Same, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Elliot’s Debates, Vol. 1). Asking why a motion for a bill of rights appeared so late in the day, Professor Jack Rakove offers an important historical insight. Seven weeks prior to the discussion, the committee of detail had considered whether a preamble would be necessary “for the purpose of designating the ends of government and human polities.” The committee answered in the negative, as the constitution was not meant to work upon the natural rights of men not yet in political union, “but upon those rights, modified by society, and interwoven with what we call the rights of states.” Hudson, ed., Supplement, 183. Note that the document is in George Mason’s papers in the Library of Congress. Cited in JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 317, n. 77 (1996). Rakove explains, “If these documents were regarded less as compilations of legally enforceable civil rights than as general reservations of natural rights,” then it made no sense to re-write the 1776 Declaration of Independence. Id. 218 Quoted without citation in MAIER, supra note 198, at 56.

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houses, persons, or property.”219

Lee’s use of the word “unreasonable” reflected the state constitutional language of

Pennsylvania, Massachusetts, and New Hampshire. This clause went beyond merely banning general warrants, by preventing any search considered unreasonable. It thus included, but was not limited to, general warrants. Specific warrants, lacking particularity, or unsupported by oath, could therefore be found unconstitutional. Congress declined the proposal and voted unanimously to forward the Constitution to the states as it stood.220

A number of scholars have written extensively and well on the state conventions and public debates that accompanied ratification of the U.S. Constitution.221 For now, it is sufficient to note that foremost amongst a number of states’ concerns was the importance of amending the document to include a bill of rights. The question was whether this 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.222 Embedded in this discussion was the importance of outlawing general warrants and creating stricter requirements for specific warrants, to ensure that the rights of the people would be secure against government

219 Richard Henry Lee’s Proposed Amendments, Sept. 27, 1787, available at http://csac.history.wisc.edu/confederation_congress.htm. 220 U.S. Constitutional Congress, Journals, Vol. 12 (1786-1787), at 166, Proceedings of Sept. 27-28, 1787. 221 See, particularly, RAKOVE, supra note 201; MAIER, supra note 198; THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE U.S. CONSTITUTION; KURLAND & LERNER'S 'THE FOUNDERS' CONSTITUTION'; JURGEN HEIDEKING, THE CONSTITUTION BEFORE THE JUDGMENT SEAT: THE PREHISTORY AND RATIFICATION OF THE AMERICAN CONSTITUTION, 1787-1791 (John P. Kaminski & Richard Leffler eds., 2012). The Documentary History of the Ratification of the Constitution, published since 1976 by the Wisconsin Historical Society, is an incredible resource, as it draws together both the better-known documents and a vast trove of letters, local publications, and other sources often ignored in the history of the times. It traces the progress of the Constitution through each of the states’ conventions. A digital edition is available at http://rotunda.upress.virginia.edu/founders/default.xqy?keys=RNCN- print-02&mode=TOC. 222 The six most important states in this regard included Pennsylvania, North Carolina, Massachusetts, New Hampshire, Virginia, and New York. See RAKOVE, supra note 201, at 116-128.

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overreach.223

One of the most sustained discussions of the need for such provisions arose, perhaps unsurprisingly, in Virginia—the first part of the country that had been permanently settled

(Jamestown, 1607), the state with the oldest law-making body (the House of Burgesses), and the first entity to issue a declaration of rights and to declare independence from Great Britain.

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 2.7 million people.

More than half a million people lived in Virginia—which nearly totaled the next two most populous states, combined.224 Virginia played a prominent role in the American Revolution and, thereafter, on the national stage. Four of the first five presidents (George Washington, Thomas

Jefferson, James Madison, and James Monroe), were Virginians. Although Virginia had sent seven delegates to the Constitutional Convention, four (George Mason, James McClurg, Edmund

J. Randolph, and George Wythe)—all prominent political figures—refused to sign it.225 The battle lines were drawn, and the drama played out in the state convention.

Patrick Henry, the charismatic former governor, led the attack. And what a tour de force it was. Even Thomas Jefferson, who deplored Henry’s legal acumen and held a longlasting grudge against the man, acknowledged that Henry was “the greatest orator that ever lived.”226 Henry began, “[O]ur rights and privileges are endangered, and the sovereignty of the states will be

223 Anti-Federalists immediately focused in on the absence of protection against general warrants as one of the most significant gaps in the new constitution. For scathing satires, see One of the Nobility, NEW YORK JOURNAL, Dec. 12, 1787, available at http://csac.history.wisc.edu/one_of_nobility.pdf (recounting as part of the “Political Creed of every Federalist” “I believe that it is totally unnecessary to secure the rights of mankind in the formation of a constitution.”); Blessings of the New Government, PHILADELPHIA INDEPENDENT GAZETTEER, Oct. 6, 1787, available at http://csac.history.wisc.edu/blessings_of_new_government.pdf (including “General search warrants” as “Among the blessings of the new-proposed government”). 224 Pennsylvania had a population of 327,000, and North Carolina had a population of 270,000. UNITED STATES CENSUS BUREAU, Colonial and Pre-Federal Statistics, Series Z 1-19, Estimated Population of American Colonies: 1610 to 1780, p. 1168, available at http://www2.census.gov/prod2/statcomp/documents/CT1970p2-13.pdf. 225 John Blair, James Madison, Jr., and George Washington were the Virginians who signed the document. Virginia had the second highest number of representatives at the convention; the only state to send more delegates than Virginia was Pennsylvania, with eight delegates. For contemporary discussion of the prominence of the Virginia delegates, see Letter on the Federal Constitution, Oct. 16, 1787, By Edmund Randolph (Richmond: Printed by Augustin Davis, 1787), available at http://lf-oll.s3.amazonaws.com/titles/1670/Ford_1338.pdf. 226 Stan V. Henkels, Jefferson’s Recollections of Patrick Henry, PENNSYLVANIA MAGAZINE OF HISTORY AND BIOGRAPHY, XXXIV, 385-419 (1910), esp. Jefferson to William Wirt, Monticello, Aug. 4, 1805, 386-88, 390-91, quoted and cited in MAIER, supra note 198, at 230, fn. 47.

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relinquished . . all your immunities and franchises, all pretentions to human rights and privileges, are rendered insecure, if not lost” by the new constitution.227 Such “tame relinquishment of rights” was not “worthy of freemen.”228 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.”229 What was needed was a bill of rights to secure the people against the federal government.230

Henry pointed out that Virginia had not been content with a structure that divided power among the legislative, executive, and judicial branches. Nor had it 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!”231

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. Under the Virginia constitution, the government was “restrained from issuing general warrants to search suspected places, or seize persons not named, without evidecne of the ocmmission of a fact, &c.”232 But under the federal Constitution being contemplated, “The officers of congress may come upon you now, fortified with all the

227 Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution, in 3 DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787 44 (Jonathan Elliott ed., 2d ed. Rev. 1891). 228 Id. 229 Id. at 58. 230 Id. at 445. (“Mr. Chairman, the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before.”) 231 Id. 232 Id. at 448.

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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.”233

General warrants, for Henry, earned a special place of horror. “I feel myself distressed,” he stated, “because the necessity of securing our personal rights seems not to have pervaded the minds of men; for many other valuable things are ommitted: -- 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.” The problem was that any property could be taken “in the most arbitrary manner, without any evidence or reason.”

Everything considered sacred could “be searched and ransacked by the strong hand of power.”234

Patrick Henry’s sentiments were shared by many in Virginia. Accordingly, the state convention appointed the Wythe committee, which responded directly to his concerns. The proposed Bill of Rights, which the convention approved without any dissents and which the committee had revised from the Virginia Declaration of Rights, was then transmitted, together with ratification of the Cosntitution, to Congress.235 It recommended, “That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people.”236

As part of the proposed bill of rights, Virginia included language to establish the right against unreasonable search and seizure, tying protection of this right directly to the elimination of general warrants, as well as the inclusion of further elements that would be required for specific warrants to be valid. Article 14 read, “That every freeman has a right to be secure from all

233 Id. at 449. 234 Id. at 588. 235 Id. at 663. 236 Id. at 657.

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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, wtihout information on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are greivous 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.”237

Passage of the proposed bill of rights was central to Virginia’s acquiescence to the U.S. constitution. The state convention resolved to enjoin upon Virginia’s representatives in Congress

“to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of” this clause.”238 Even with the accompanying statement of rights, the vote for ratification in

Virginia was narrow: delegates approved the Constitution by a vote of 89 to 79, giving supporters just a five vote margin.

In New York, the vote for ratification was even closer. The final count was 30 to 27, giving ratification only a 2 vote margin. As in Virginia, the absence of provisions protecting individuals against promiscuous search figured largely in the public debate. A “Son of Liberty” predicted that general warrants would be one of the curses that would “be entailed on the people of

America, by this preposterous and newfangled system, if they are ever so infatuated as to receive it.” According to the writer, “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.”239

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

237 Id. at 658 (emphasis added). 238 Id. at 661 239 A Son of Liberty, NEW YORK JOURNAL, Nov. 8, 1787, http://csac.history.wisc.edu/son_of_liberty.pdf (emphasis in the original).

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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.”240 Two conditions would have to be met for an instrument not to be

“unreasonable,” or contrary to common law: neither would general warrants be allowed, nor would specific warrants lacking information, oath, or sufficient cause, issue. Instead, specific warrants would have to be based on sworn evidence, of a specific crime committed, and name the particular person on whom they would be served and place to be searched.

New York insisted that it was only with the understanding that Congress would amend the

Constitution to take account of this right, and the others laid out in the document, that the state consented to the new Constitution.241 The convention attached a military reservation to make it clear that it did not make its representation lightly: “[I]n full confidence, nevertheless, that, until a convention shall be called and convened for proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof.”242 The threat was clear.

Without Virginia and New York, the Constitution would have been dead in the water. The issue of promiscuous search and seizure was not a sideshow to the founding, or a curious incident on the edges of consideration. It was one of the serious concerns of delegates in the state constitutional conventions.

Other states also insisted upon the inclusion of a bill of rights, within which general warrants

240 Dated July 26, 1788, signed by George Clinton, President of the Convention, The Ratifications of the Twelve States, in 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787 328 (Jonathan Elliot, ed., 2d ed. Rev. 1891) (emphasis added). 241 Id. at 329 (“Under [this] impression[], and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration, --- We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution.”) 242 Id. at 329.

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played an important 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.”243 Like New York, Rhode Island indicated that it was only on the understanding the Constitution would be amended to take account of this concern that it ratified the document. And like New York, the state indicated that it would largely retain its militia within state borders until a federal declaration of rights had been enacted.244 Rhode Island’s ratification vote was the slimmest of any state. It passed 34-32.

Maryland delegates were required to report the proceedings of the constitutional convention to the state legislature. State attorney general Luther Martin, a graduate of the College of New

Jersey (later Princeton) and a delegate to the constitutional convention, walked out two weeks before the Philadelophia meeting adjourned. He explained his decision to leave the

Constitutional Convention to the Maryland House of Assembly. The new federal government would prove too powerful. He objected to the ability of federal officers, through excise, to examine into citizens’ private concerns.245 Martin’s concerns were picked up in the public discussion by “A Farmer and Planter,” an anti-federalist writing under a pen name, who published his objections in the Maryland Journal, “The excise officers have power to enter your houses at all times, by night or day, and if you refuse them entrance, they can, under pretence of searching for exciseable goods,. . . break open your doors, chests, trunks, desks, boxes, and rummage your houses from bottom to top.” The anti-federalist made an impassioned plea, “What do you think of a law to let loose such a set of vile officers among you!” He asked, “Do you expect the

Congress excise-officers will be any better, if God, in his anger, should think it proper to punish

243 Debates in the Convention of the State of North Carolina, on the Adoption of the Federal Constitution, in 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787 333-335 (Jonathan Elliott ed., 2d ed. Rev. 1891). 244 Id. at 335. 245 The Genuine Information Relative to the Proceedings of the General Convention, Lately Held at Philadelphia, by Luther Martin Esquire . . . ,Storing II: 19-82. Martin first gave a speech to the Maryland legislature in autumn 1787. He then expanded his remarks, which the Maryland Gazette began printing towards the end of the year. The final installment was released in February. In April 1788, Eleazar Oswald printed the entire series as the pamphlet The Genuine Information, Delivered to the Legislature of Maryland. See also MAIER, supra note 198, at 90.

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us for our ignorance, and sins of ingratitude to him, after carrying us through the late war, and giving us liberty, and now so tamely to give it up by adopting this aristocratical government?”246

These arguments did not prevent Maryland from ratifying the constitution, but they did lead to the state convention considering a series of amendments. Delegates strongly supported the additional clauses, with the result that the convention voted to remand the amendments to

Congress for inclusion in the Constitution.247 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.”248

The notes of Maryland’s state convention underscored the importance of this provision: “This amendment was considered indeispensable 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.” 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.”249 Without amendments to the federal constitution, the liberty and happiness of the people stood endangered.250

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

246 A Farmer and Planter, 5 MARYLAND JOURNAL, 75-76 (Storing ed., Apr. 1, 1788). 247 Compare Debates in the Convention of the State of North Carolina, supra note 227, 324 to Fragment of Facts, Disclosing the Conduct of the Maryland Convention, on the Adoption of the Federal Constitution, in 2 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, in 1787 556 (Jonathan Elliott ed., 2d ed. Rev. 1891). See also Fragment of Facts, supra note 231, at 549 (“Sentiments highly favorable to amendments were expressed, and a general murmur of approbation seemed to arise form all parts of the house, expressive of a desire to consider amendments.”). 248 Fragment of Facts, supra note 231, at 551-552. 249 Id. 250 Id. at 555.

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“particular care to prevent” general warrans 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.”251 Holmes voted against ratification. North Carolina delegates similarly raised concern about the absence of explicit protections for rights in the Constitution, stating “That a declaration of rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the unalienable rights of the people. . . ought to be laid before Congress.”252 The state convention included in its proposed declaration of rights, “That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers and property.” Like the other states, it tied protection of this right to outlawing general warrants and adding the particular requirements for specific warrants that would make them valid. The text continued, “all warrants, therefore, 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.”253

One of the most lively public discussions of general warrants and the failure of the constuitution to address them occurred in Pensylvania. Samuel Bryant, an Anti-Federalist writing as “Centinel,” repeatedly made the point. “Your present frame of government,” he pointed out to the people, “secures you a right to hold yourselves, houses, papers and possessions free from search and seizure.” Bryant continued, “therefore, warrants granted without oaths or affirmations first made, affording sufficient foundation for them . . . shall not be granted.” This right hung in the balance: “whether your papers, your persons, and your property, are to be held sacred and free from general warrants, you are now to determine.”254

Not everyone at the founding wanted to include a bill of rights. Federalists, led by Alexander

251 Debate in Massachusetts Ratifying Convention, in 2 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, in 1787 111-12 (Jonathan Elliott ed., 2d ed. Rev. 1891). 252 Debates in the Convention of the State of North Carolina, supra note 227, at 242; see also id. at 331-32 (Ratification document formally returned, incorporating the clause). 253 Id. at 244. 254 Centinel, 13 INDEPENDENT GAZETTEER (Philadelphia), Kaminski & Saladino, No. 1, Oct. 5, 1787, at 328-329; see also Centinel, 13 FREEMAN’S JOURNAL (Philadelphia), Kaminski & Saladino, No. 2, Nov. 1, 1787, at 466-67.

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Hamilton (the only New Yorker to sign the Constitution), James Wilson, a Scottish

Pennsylvanian, who had studied law under John Dickinson, and James Iredell from North

Carolina, argued against the explicit inclusion of rights. These men were no less influenced by

English experience.255 They simply took a different lesson from it.

In trying to convince his fellow New Yorkers to vote for the Constitution, Hamilton noted in

Federalist No. 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.256 The 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.

James 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.257 “Of what use,” he asked, “can a bill of rights be in [the U.S.] Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not?”258 And he went further, suggesting that a bill of rights would not only be unnecessary, but “absurd and dangerous.”259

Hamilton agreed. His rationale in Federalist No. 84 was that a bill of rights “would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”260 The national government was to be one of limited, enumerated authorities. By asserting a specific right, such as the right against unreasonable

255 Hamilton’s writing in The Federalist Papers demonstrates a prior knowledge of Coke and Blackstone, as well as Montesquieu and others. See Moline, supra note 129, at 785. 256 FEDERALIST NO. 84 (Alexander Hamilton) (“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights, not surrendered to the prince.”) 257 James Iredell, North Carolina Ratifying Convention, July 28, 1788, Elliot 4:148-49. 258 Id. 259 Id. 260 Federalist, No. 84.

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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?” 261 For Hamilton, an enumeration of specific rights, moreover, was meaningless.

They 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.

One of the most persuasive arguments against the bill of rights was that of a shifting burden of proof. At the heart of the concern was that the introduction of such clauses would flip the presumption of the Constitution. As initially written, the Constitution placed the burden of demonstrating federal power to act on Congress and the President. In October 1787 James

Wilson argued during the first state ratification debate in Pennsylvania—a discourse that brought him to national prominence as a spokesman for the Federalist cause—that “it would have superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested.”262 By calling out specific rights, there would be a narrowing of rights to reflect merely those listed. Federal powers would be conceived broadly, with those defending the rights bearing the burden of showing that the written provision had been invaded.

Wilson’s remarks proved prescient. One cannot look at the doctrine that has since ensued without recognizing the tendency of the 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 at the growing power of the federal government.

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.” Bryant, writing as Centinel, continued, “therefore warrants without oaths or

261 Id. 262 Speech of James Wilson, Pennsylvania, Oct. 6, 1787.

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affirmations first made, affording a sufficient foundation for them, and whereby any officer ormessenger 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.”263

It was to protect the right that particularity would be required for a warrant to issue.

As Brutus (likely Robert Yates), explained, 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.” 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 surrending them “would counteract the very end of government, to wit, the common good.” 264 The “Federal Farmer,” whose identity not been established, although scholars point to Richard Henry Lee or Melancton Smith as the likely author, wrote two pamphlets analyzing and arguing against the Constitution. He shared Brutus’s concept of the right 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.”265

Brutus recognized that governments tend to expand their powers to invade the rights of the people. This, indeed, had been the salient lesson from English experience. England’s “[M]agna

[C]harta [sic.] and bill of rights have long been the boast, as well as the security of that nation.”

263 Reply to Wilson’s Speech: “Centinel” [Samuel Bryan], FREEMAN’S JOURNAL (Philadelphia), Oct. 24, 1787. See also Samuel Bryant as “Centinel”, in the INDEPENDENT GAZETTEER (Philadelphia), Oct. 5, 1787, To the Freemen of Pennsylvania (the day before Wilson’s speech), (arguing that the proposed constitution divested Pennsylvanians of their existing liberties and privileges. Namely, “Your present frame of government, secures you a right to hold yourselves, houses, papers and possessions free from search and seizure, and therefore warrants granted without oaths or affirmations first made, affording sufficient foundation for them, whereby any officer or messenger may be commanded or required to search your houses or seize your persons or property, not particularly described in such warrant.” The right to be free from “general warrant” was now imperiled.). 264 Brutus, # 84; see also Brutus, 13 NEW YORK JOURNAL, Kaminski & Saladino, No. 2, Nov. 1, 1787, 527; writings of John DeWitt, the pseudonym adopted by an Anti-Federalist who published a series of five articles in the American Herald, published in Boston, in 1787. 265 2 THE FEDERAL FARMER, Storing, No. 4, Oct. 12, 1787, at 249. See also THE FEDERAL FARMER, No. 6, Dec. 25, 1787, Storing, vol. 2, p. 262 (“The following, I think, will be allowed to be unalienable or fundamental rights in the United States: -- . . . No man is held to answer a crime charged upon him till it be substantially described to him; and he is subject to no unreasonable searches or seizures of his person, papers or effects.”)

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The founders had taken this so seriously to heart, that with regard to the state constitutions, “there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them.” It was thus “astonishing” that the security of the rights of the people could be found nowhere in the Constitution.

General warrants stood as the foremost example of the abridgement of individual liberty rights. “For the security of liberty,” Brutus wrote, “it has been declared ‘That all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.” 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.266

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 insisted on changes to the constitution as a condition of their acceptance. Five 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 grant one marked the public discourse.267 Of the rights articulated, one of the most important and consistent objections was the failure of the original Constitutional to outlaw promiscuous search and seizure.

Incorporation: The Fourth Amendment

266 Brutus, # 84; see also Brutus, 13 NEW YORK JOURNAL, supra note 243. 267 In Pennsylvania, for instance, during the state convention, Robert Whitehill introduced a bill of rights that would have outlawed general warrants. His proposal built on the Virginia Declaration of Rights, going further to state that not only “ought not” such warrants be granted, but that they “shall not” be approved. Although the convention voted 2:1 against including a bill of rights, the Anti-Federalists went on to publish the proposed document as a pamphlet. See similar initiatives failed in Massachusetts. CUDDIHY, supra note 48, at 680-682.

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On March 14, 1789, the first Session of the First Congress adopted a resolution reflecting state concerns over the lack of a bill of rights: “The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution,” Congress, “Resolved. . . that the following articles be proposed to the legislatures of the several states, as amendments to the Constitution of the United States. . .”

The task of drafting the bill of rights fell to James Madison, who had been the principal author of the U.S. Constitution. Although he had objected to any amendments prior to ratification on the grounds that they would cause friction between the states and potentially contribute to a dissolution of the Union, he now felt that amendments would “serve the double purpose of satisfying the fminds of well meaning opponents, and of providing additional guards in favour of liberty.” Specifically, he supported amendments to protect “the rights of Conscience, the freedom of the press, trials by jury, [and] security against general warrants. . .”268

On May 4, 1789, Madison formally informed the House of Representatives that he intended to introduce amendments. Just over a month later, he presented the House with a draft of what is now the Fourth Amendment: “The rights of the peple to be secured in their persons, their houses, their papers, and their other property from all unreaosnable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly descr[i]bing the places to be searched, or the persons or things to be seized.”269

Madison understood the initial clause—the right against unreasonable search and seizure—as a

268 CREATING THE BILL OF RIGHTS, 75 (Helen E. Veit, et al., eds., 1991). Some historians suggest that the reason Madison’s view on whether to introduce a bill of rights shifted had more to do with self-interest (i.e., winning a seat in Congress over James Monroe) than to an alteration on the merits. [INSERT CITE] Regardless, the fact that abolition of general warrants figured largely in Madison’s object underscores the importance of the elimination of the instrument to the Founding generation. 269 1 CONGRESSIONAL REGISTER, June 8, 1789, at 428. See also DAILY ADVERTISER, June 12, 1789, 2, col. 2; NEW- YORK DAILY GAZETTE, June 13, 1789, 574, col. 3.

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ban against general warrants.270 It was thus one of many types of warrants that would be intolerable. Also rejected were specific warrants that failed to reflect “probable cause,” were not

“supported by oath or affirmation,” or which failed to particularly to describe “the places to be searched, or the persons or things to be seized.” He had previously voiced concern that a ban against general warrants, in particular, had not been included in the constitution. Madison proposed that the amendments be inserted directly into Article I(9).271 As federal powers were to stem from the legislature, the protection against federal overreach ought also to be located in

Article I.

Initially, the House of Representatives ignored Madison’s proposal, forcing him to reintroduce the amendments in July, with Elbridge Gerry’s assistance. At that point, he requested that the House reconvene as a committee of the whole house to debate the provisions. Instead, the House decided to direct the amendments to a “Committee of Eleven,” chaired by John Vining from Delaware, and containing one member from each state.272 The committee made an important alteration by changing Madison’s language protecting persons, houses, papers, and other property, to persons, houses, papers, and effects. There are no records of why this change was made. The context, however, is of some import. “Effects” carried a meaning beyond personal property or possessions to include commercial goods or items as well.273 It was the equivalent of tangible goods.274 In addition to this alteration, the committee removed the words

“all unreasonable searches and seizures” apparently by mistake—or so it was later claimed during

270 See Davies, supra note 161, at 555; see also N. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 103 (1937); Robert M. Bloom, Warrant Requirement – The Burger Court Approach, 53 U. COLO. L. REV. 691, 692 (1982). 271 CONGRESSIONAL REGISTER, supra note 248. 272 North Carolina did not ratify the constitution until November 21, 1787, with Rhode Island ratifying the document May 29, 1790. 273 JOHNSON’S DICTIONARY (1768), defined effects as “Goods; moveables.” A general dictionary from 1730 defined it as “the goods of a merchant, tradesman, &c.” DICTIONARIUM BRITANNICUM (Nathan Bailey, ed., 1730, reprinted 1969). 274 Scholars disagree on the implication of the change in the wording for whether it expanded or contracted to include real property. Davis argues that the substitution intended to narrow the scope of interests protected by Madison’s proposal. Davies, supra note 161, at 711. Akil Amar argues in response that the Framers intended for “effects” to be a broad term, incorporating all buildings and ships. Akil Amar, The Bill of Rights: Creation and Reconstruction 67 (2000); and Boston, at 68-69; and Terry, at 1104-05.

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the House debate, when the clauses were re-instated as “unreasonable searches and seziures.”275

The committee also put “secured” into the present tense (“secure”). 276 The committee agreed 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.

It took nearly a month of steady pressure from Madison for Congress to consider the amendments as unanimously agreed by the committee.277 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.

During this time, the House made four revisions to what would become the Fourth

Amendment. It appears that Egbert Benson, who had served on the committee, re-inserted the clause “unreasonable searches and seizures,” which mistakenly had been dropped, restoring

Madison’s singling out of general warrants from the other types of specific warrants that would be Constitutionally insufficient.278 Elbridge Gerry seemingly altered “by warrants issuing” to “no warrant shall issue.”279 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.280

275 For discussion of this point see Cuddihy at 1408-1409, Davies, supra note 161, at 715; and Levy, Original Meaning, at 243. 276 HOUSE COMMITTEE OF ELEVEN REPORT, July 28, 1789, Broadside Collection, D.L.C. (The amendment thus read “the rights of the people to be secure in their persons, houses, papers and effects.”) 277 2 CONGRESSIONAL REGISTER, Aug. 17, 1789, at 226 (reported). 278 Id. at 226 (agreed to, following motions), attributes the amendment to Elbridge Gerry. However, other sources attribute it to Egbert Benson. See Daily Advertiser, Aug. 18, 1789, p. 2, col. 4 (Benson moving to insert “against unreasonable searches and seizures” and noting “This was carried. The question was then put on the amendment and carried.”); New-York Daily Gazette, Aug. 19, 1789, p. 802, col. 4 (stating that Benson moved to insert “against unreasonable searches and seizures.” And noting “this was carried.”); Gazette of the U.S., Aug. 22, 1789, p. 249, col. 3 (stating that Benson added “against unreasonable seizures, and searches.” And noting, “This was carried.”) See also Davies, supra note 161, arguing that the clause was added by Benson. 279 This alteration is attributed to Egbert Benson in 2 CONGRESSIONAL REGISTER, Aug. 17, 1789, at 226. However, other sources place authorship with Elbridge Gerry. See, e.g., GAZETTE OF THE U.S., Aug. 22, 1789, 249, col. 3 (attributing the amendment altering “by warrants issuing” to “and no warrant shall issue” to Mr. Gerry and noting, “this was negatived.”); HJ, Aug. 21, 1789, 108 (“read and debated . . . agreed to by the House, two-thirds of the members present concurring.”) See also discussion in Davies and Cuddihy, both of whom adopt the formulation that I use in the text, above. 280 2 CONGRESSIONAL REGISTER, Aug. 17, 1789, 226. Although the changes recommended by Benson and Livermore were removed by the House from the draft bill of rights, they were subsequently re-instated by the Committee of Three. The Senate retained the clauses.

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Finally, over Madison’s vehement objections, Roger Sherman moved for the relocation of the entire Bill of Rights into a separate appendix. He was concerned about how altering the main body of the document might affect the state ratification agreements, and he worried that inserting the clauses before the signatures of those present at Philadelphia would (mistakenly) suggest that they had also agreed to the amended text.

The House of Representatives thereafter completed its consideration of the other clauses and directed a Committee of Three (including Benson, Sherman, and Theodore Sedgwick), to determine the order of the amendments.281 The Committee reported back to the House on August

24, with a 17-point bill of rights (in which the clause was listed as number seven), which was then sent to the Senate.282

Although the Senate made a number of changes to other amendments, the only alteration it made to the clause on search and seizure related to punctuation.283 The text returned to the House as the sixth amendment. Although the House apparently rejected the Benson Committee paragraph, following a conference committee, the House withdrew its objections.284 Accordingly, on September 25, 1789, via a joint Resolution of Congress, the federal government sent twelve amendments to the state legislatures.285 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.”286

By leaving the word “place” in the singular and “persons or things” in the plural, the final clause reflects an understanding at the time that considered multiple-specific search warrants,

281 House Journal, Aug. 22, 1789, p. 112. 282 Printed Senate Journal, Aug. 24, 1789, pp. 104-5. 283 Senate Pamphlet, RG 46, DNA, Sept. 9, 1789. 284 House Journal, Sept. 21, 1789, p. 146; House Journal, Sept. 24[25], 1789, p. 152; Printed Senate Journal, Sept. 24, 1789, p. 148. 285 Printed Senate Journal, Sept. 25, 1789, Appendix, p. 164; Enrolled Resolutions, Sept. 28, 1789, RG 11, DNA. 286 1 STATUTES AT LARGE, 21, 97-98.

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which confined a search to several places, to be invalid. Although they had been used prior to the

Revolution, 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. Warrants allowing multiple houses to be searched were unreasonable, even if the multiple houses were specified.

By 1789, most states had introduced legislation requiring specific warrants, nearly all of which limited search warrants to single locations. Madison’s wording is quite particular in this regard: although the right extends, in the first part of the Fourth Amendment, of the people to be secure in their (plural) “houses”, the warrant is limited to “particularly describing the place” to be searched. Unlike contemporary understandings, moreover, where “place” can be understood in broad terms—at times synonymous with “space”—in 1789, it was understood as a “particular portion of space.”287 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.288

The first two clauses of the Bill of Rights never garnered sufficient votes from the states to become law. As a result, what had been the sixth amendment became the Fourth Amendment.

On Decmeber 15, 1791, Virginia became the eleventh state to ratify the first ten amendments to the Constitution.

Soon after adoption of the Fourth Amendment, a series of cases re-affirmed that the purpose of the language was to protect individuals against the exercise of a general warrant or a specific warrant lacking evidence, probable cause, an oath, and particularity.

In Pennsylvania, Article 9(8) of the state constitution stated that no warrant shall be issued to seize any person, without probable cause supported by oath or affirmation. The president of the

Court of Common Pleas of Northumberland county, issued a general warrant for the arrest of an

287 SAMUEL JOHNSON, DICTIONARY 288 For further support of this point, see CUDDIHY, supra note 48, at 740-742.

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indivdual whom it was rumored had forged bank notes. The judge confronted the claim that

“public safety” required a waiver of the specificity otherwise required by the law, leaving it to the magistrate to determine under what circumstances would suffice. “It appears to me,” Judge

Cooper stated, “that if this be the true construction, the provision in the constitution is a dead letter.” His rationale was straightforward: “[I]n every instance, the magistrate who issued the warrant, would say that he thought it a case of necessity.” 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.”289

Courts in Connecticut took a similar stance. In a situation 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.”290 In parallel, a case in New York affirmed that only particularity in a warrant would justify the breaking open of a suspect’s home.291

By 1886, the Supreme Court had adopted an even broader concept of the realm covered by the Fourth Amendment, extending its protection of papers beyond one’s own documents to an individual’s business records.292 In Boyd v. United States, the Court struck down a statute that allowed for a court order compelling the production of an invoice. Citing to Chief Justice Pratt’s remarks in Entick v. Carrington, Justice Bradley argued that the seizure of papers in question amounted to a violation of the right against self-incrimination. Any such Fifth Amendment violation, in turn, could be understood as “unreasonable” under the Fourth Amendment, and was therefore unconstitutional. The language placed a limit on what the legislature could sanction.

289 Connor v. Commonwealth, 3 Binney 38 Pa. 1810. 290 Grumon v. Raymond, 1 Conn. 40 (1814). 291 Bell v. Clapp, 10 Johns. R. 263 N.Y. 1813. 292 Boyd v. United States, 116 U.S. 616 (1886).

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Original Meaning

As a term of art, “originalism” is a relative newcomer to constitutional debate. It emerged in the conservative backlash to the Warren Court and the dialectic that ensued over the appropriate role of the judiciary in interpreting and applying the Constitution.293 The basic concept, that of understanding the text according to its original meaning, or the original intent of those who introduced the provisions, is not a new idea.294 For centuries, lawyers, judges, and scholars have recognized the importance of discerning the law at its inception.

In 1988 the U.S. Department of Justice (DOJ) made its adherence to this approach explicit, arguing that fidelity to the original meaning of the Constitution was neither conservative nor liberal. It merely reflected a jurisprudence faithful to the law.295 Formal guidelines directed that constitutional language “be construed as it was publicly understood at the time of its drafting and ratification.”296 Attorneys arguing on behalf of the government “should advance constitutional arguments based only on this ‘original meaning.’”297 Where text may be ambiguous or vague,

293 For examples of the initial attacks on the Warren Court see Robert Bork, Neutral Principles and Some First Amendment Problems, 47 INDIANA L. J. 1, 6, 8 (1971-1972) (arguing that the constitutional rights and liberties are in “in some real sense specified by the Constitution,” as a critique of the Warren Court, and stating that “The judge must stick close to the text and the history, and their fair implications, and not construct new rights”, as an attack on Griswold v. Connecticut, 381 U.S. 479 (1965)); Robert H. Bork, The Constitution, Original Intent, and Economic Rights, 23 SAN DIEGO L. REV. 823, 824 (1986)(“[C]onstitutional adjudication starts form the proposition that the Constitution is law” and therefore “constrain[s] judgment”, making it critical that constitutional language be construed as it was understood at the time of its drafting an ratification.); William Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976)(criticizing living constitutionalism); Raoul Berger, GOVERNMENT BY JUDICIARY 283-284, 291-92, 296, 297-98 (1977)(The Constitution represents fundamental choices that have been made by the people, and the task of the Courts is to effectuate them, “not [to] construct new rights.’ When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power . . . Substitution by the Court of its value choices for those embodied in the Constitution violates the bvasic principle of government by7 the consent of the governed . . . . [T]he Supreme Court has no authority to substitute an ‘unwritten Constitution’ for the written Constitution the Founders gave us and the people ratified.”). In 1980, Paul Brest responded with an article commonly attributed with coining the term “originalism.” Paul Brest, The Misconceived Quest for the Original Understanding, 60 BOSTON UNIV. L. REV. 204-238 (1980). An intense scholarly debate followed. See, e.g., H. Jefferson Powell, The Original Understand of Original Intent, 98 HARV. L. REV. 885 (1985); Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NORTHWESTERN UNIV. L. REV. 226-292 (1988); Richard Kay, Original Intentions, Standard Meanings and the Legal Character of the Constitution, 6 CONST. COMM. 39-50 (1989). 294 See, e.g., Ex parte Bain, 121 U.S. 1, 12 (1887); Reynolds v. United States, 98 U.S. 145, 162 (1878); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188-189 (1824); 1 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 400, at 383-84(1999)(1833). 295 Office of Legal Policy, U.S. Dep’t of Justice, Guidelines on Constitutional Litigation 1 (Feb. 19, 1988). 296 Id., at 3. 297 Id.

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attorneys must look to sources that indicated “the intent of those who drafted, proposed, and ratified that provision (i.e., the Founders).”298 Accordingly, all government briefs were to

“clearly set out the text and original understanding of the relevant constitutional provisions, along with an analysis of how the case would be resolved consistent with that understanding.” 299

In the ensuing decades, originalism has become a dominant mode of constitutional interpretation.300 It has been the deciding factor in Supreme Court decisions.301 As the DOJ recognized in the 1980s, it is critical to understanding the Constitution. It does not necessarily represent one side of the political spectrum. It has been embraced by conservative justices, such as William H. Rehnquist, Antonin Scalia, and Clarence Thomas.302 And it has been applied to a

298 Id. 299 Id., at 10. 300 During the Reagan Administration’s second term, Edwin Meese was appointed Attorney General. He gave a series of speeches in which he stated that originalism would guide the department. One of the speeches, given at the ABA’s annual meeting, became widely reported and provided political salience to what had been largely insulated within the realm of legal scholarship. Edwin Meese III, U.S. Att’y Gen., Speech Before the American Bar Association (July 9, 1985), in ORIGINALISM: A QUARTER-CENTURY OF DEBATE 47 (Steven G. Calabresi ed., 2007). Justice William J. Brennan, Jr., responded, spurring further public debate. See Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium at Georgetown University (Oct. 12, 1985), in ORIGINALISM, at 55; Edwin Mees III, U.S. Att’y Gen., Speech Before the D.C. Chapter of the Federalist Society Lawyers Division (Nov. 15, 1985), in ORIGINALISM, at 71. See also Steven G. Calabresi, A Critical Introduction to the Originalism Debate, 875 HARV. J. OF L. & PUB. POL’Y 31 (2009)(discussing all three speeches). The originalist movement gained momentum as Meese brought young attorneys to the Office of Legal Counsel. Their vibrant discussions were punctuated by a talk given by Antonin Scalia, who advocated a move away from original intentions and towards public meaning. This proved to be a critical moment, as the lawyers’ thought shifted, and upon their entry into academia in the 1990s, they began to write more in this direction. See, e.g., Gary Lawson, Legal Indeterminacy: Its Cause and Cure, 19 HARV. J.L. & PUB. POL'Y 411 (1996); Michael Rapoport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court’s th th 10 and 11 Amendment Decisions, in 93 NORTHWESTERN L. REV. 819 (1999); Michael Rapoport, The Original Meaning of the Recess Appointments Clause, in 52, Univ. of Calif. Los Angeles L. Rev. 1487 (2005); John McGuiness, The Original Constitution and its Decline: A Public Choice Perspective, 21 HARV. J. L. & PUB. POL. 195 (1997). Around the turn of the century, “new originalism” emerged, centered on two tenets: the original meaning of the constitutional text equates to public meaning (reflecting Justice Scalia’s approach), and a distinction can be drawn between interpretation and construction. See, e.g., KEITH WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999); KEITH WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (2005); RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION (2004); Randy E. Barnet, Originalism for non-Originalists, 45 LOY. L. REV. 611-654 (1999); Randy E. Barnett, Trumping Precedent with Original Meaning: Not As Radical As It Sounds, 22 CONS. COMMENT. 257-270 (2005); Lawrence B. Solum,, The Interpretation-Construction Distinction, 27 CONST. COMMENTARY, 95-118 (2010); Lawrence B. Solum, Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453 (2013)(distinguishing between constitutional interpretation and constitutional construction and advancing two claims about the latter); ROBERT W. BENNETT AND LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A DEBATE (2011). 301 See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783 (2008). See also Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NORTHWESTERN UNIV. L. REV., 923 (2009) (analyzing the use of originalism by Justice Scalia’s majority opinion and the dissents offered by Justice Stevens and Justice Breyer). 302 See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (1997) (“What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”); Antonin Scalia, Originalism: The Lesser Evil, William Howard Taft Constitutional Law Lecture (Sept. 18, 1888), in 57 UNIV. CINCINNATI L. REV. 849 (1989).

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range of what have traditionally been considered liberal causes, with Roe v. Wade,303 gender and equal rights jurisprudence, 304 and the Court’s decision in Brown v. Board of Education305 defended on originalist grounds.

Examined in light of original intent and meaning, the intelligence community’s use of general warrants to collect citizens’ information contravenes the Constitution. The orders issued by the

Foreign Intelligence Surveillance Court to support the telephony metadata program, as well as the collection of international (and a significant amount of domestic) content, violate the Fourth

Amendment.

Some people may not feel that fidelity to the original meaning of the Constitution, or the text introduced by the Founders, matters. One possible response to the sheer avalanche of evidence that the programs violate the Fourth Amendment may be that the meaning is no longer relevant.

This position, however, fails to appreciate the strength of the arguments on which the rejection of promiscuous search and seizure rest. That is the subject of the following chapter.

303 WHAT ROE V. WADE SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S MOST CONTROVERSIAL DECISION, ED. BY JACK BALKIN (2005). 304 Steven Calebresi and Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers, 65 FLORIDA L. REV. 909-1087 (2013). See also Steven Calebresi, Seminar on The Equal Protection Clause and Originalism, at Roger Williams University School of Law (2012). 305 Michael McConnell, Originalism and the Desegregation Decisions, 81 VIRGINIA L. REV. 947 (1995); Michael McConnell, The Originalist Justification for Brown: A Reply to Professor Klarman, 81 VIRGINIA L. REV. 1937 (1995).

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Broadside comprised of an engraving set above two columns of verse. In the first group on the right, the left-most figure is the Earl of Bute, armed with a dagger, tearing the robes of Britannia as he prepares to stab her in the chest. On the shield defending her is written “North Briton.” In the group on the left, Wilkes, armed with a sword and a shield also marked “North Britain” are driving away Bute’s Scottish clients. Source: Library of Congress, British Cartoon Prints Collection, PC 1 – 4028, Reproduction number: LC-USZC4-7103, http://www.loc.gov/pictures/item/99406046/

Three years later John Wilkes’s visage appeared on an obelisk erected on Boston Common to celebrate the repeal of the Stamp Act. At the bottom of a print of the obelisk, reproduced above, was the legend, “To every Lover of Liberty, this Plate is humbly dedicated, by her true born Sons, in Boston New England.” Source: Library of Congress, PGA – Revere – View of the obelisk, Reproduction Number: LC-DIG-ppmsca-05479, http://www.loc.gov/pictures/collection/app/item/2003690787/.

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Print sold near Drury Lane, London, Oct. 1765, showing several men dancing on a sarcophagus with reliefs at the base of “Britannia” and “America” and bearing the inscription, “here loath the Body of William Duke of Cumberland &c lamented by his Country, which he . . . Sav’d. . . by selecting a ministry, out of those virtuous few, who gloriously withstood GENERAL WARRANTS. . . “ Source: Library of Congress, PC 1-4124, Reproduction number: LC- USZ62-45397, http://www.loc.gov/pictures/item/2004672609/.

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