the court shall appoint; and that said United previously imported. To do this the disattorney offered in evidence an order d by the district judge under the fifth secof the same Act of June 22, 1874, directLotice under seal of the court to be given to the claimants, requiring them to produce e invoice of the twenty-nine cases. The aimants, in obedience to the notice, but obeting to its validity and to the constitutionality of the law, produced the invoice; and when it was offered in evidence by the district attorney they objected to its reception, on the ground that in a suit for forfeiture no evidence can be compelled from the claimants them-lowing words, to wit: selves, and also that the statute, so far as it compels production of evidence to be used against the claimants, is unconstitutional and roid. The evidence being received and the trial closed, the jury found a verdict for the United States, condemning the thirty-five cases of glass which were seized, and judgment of forfeiture was given. This judgment was affirmed by the circuit court, and the decision of that court is now here for review. As the question raised upon the order for the production by the claimants of the invoice of the twenty-nine cases of glass and the proceedings had thereon is not only an important one in the determination of the present case, but is a very grave question of constitutional law, involving the personal security and privileges and immunities of the citizen, we will set forth the order at large. After the title of the court and term, it reads as follows, to wit: "The United States of America against E. A. B., 1-35, Thirty-Five Cases of Plate Glass. The 5th section of the Act of June 22, 1874, under which this order was made, is in the fol "In all suits and proceedings other than criminal arising under any of the revenue laws of the United States, the attorney representing the Government, whenever in his belief any business book, invoice or paper belonging to or under the control of the defendant or claimant will tend to prove any allegation made by the United States, may make a written motion, particularly describing such book, invoice, or paper and setting forth the allegation which he expects to prove; and thereupon the court in which suit or proceeding is pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice or paper in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be served formally on the defendant or claimant by the United States Marshal by delivering to him a certified copy thereof, or otherwise serving the same as original notices of suit in the same court are served; and if the defendant or claimant shall fail or refuse to produce such book, invoice or paper in obedience to such notice, the allegations stated in the said motion shall be taken as confessed, "Whereas, the attorney of the United States unless his failure or refusal to produce the same for the Southern District of New York has shall be explained to the satisfaction of the filed in this court a written motion in the above court. And if produced, the said attorney shall entitled action, showing that said action is a be permitted, under the direction of the court, suit or proceeding other than criminal, arising to make examination (at which examination under the customs revenue laws of the United the defendant or claimant, or his agent, may States, and not for penalties, now pending un- be present) of such entries in said book, invoice determined in this court, and that in his belief or paper as relate to or tend to prove the alle& certain invoice or paper belonging to and un-gation aforesaid, and may offer the same in der the control of the claimants herein will tend to prove certain allegations set forth in said written motion, hereto annexed, made by him on behalf of the United States in said action, to with the invoice from the Union Plate Glass Company or its agents, covering the twentytize cases of plate glass marked G. H. B. imported from Liverpool, England, into the Port of New York in the vessel Baltic, and entered by E. A. Boyd & Sons at the office of the coletor of customs of the port and collection dis1 aforesaid on April 7, 1864, on entry No. "Now, therefore, by virtue of the power in the said court vested by section 5 of the Act of Je 22, 1874, entitled 'An Act to Amend the Chetoms Revenue Laws and to Repeal Moieties,' a ordered that a notice, under the seal of this wart and signed by the clerk thereof, be issued the claimants, requiring them to produce the be or paper aforesaid before this court in the cart rooms thereof in the United States Dacice and court house building in the City of New York on October 16, 1884, at 11 o'clock, AM. and thereafter at such other times as evidence on behalf of the United States. But This section was passed in lieu of the second [620] [621] [622] in force at the time of the revision, was incorporated into sections 3091, 3092, 3093 of the Revised Statutes. The section last recited was passed in lieu of the 7th section of the Act of March 3, 1863, ontitled "An Act to Prevent and Punish Frauds upon the Revenue," etc. 12 Stat. at L. 737. The 7th section of this Act was in substance the same as the second section of the Act of 1867, except that the warrant was to be directed to the collector instead of the marshal. It was the first legislation of the kind that ever appeared on the statute book of the United States, and, as seen from its date, was adopted at a period of great national excitement, when the powers of the Government were subjected to a severe strain to protect the national existence. The clauses of the Constitution, to which it is contended that these laws are repugnant, are the Fourth and Fifth Amendments. The Fourth declares: "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." The fifth article, amongst other things, declares that no person "shall be compelled in any criminal case to be a witness against himself." But, in regard to the Fourth Amendment is contended that, whatever might havo ber 1 alleged against the constitutionality of the Acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free from constitutional objection, because it does not authorize the search and seizure of books and papers, but only requires the defendant or claimant to produce them. That is so; but it declares that if he does not produce them, the allegations which it is affirmed they will prove shall be taken as confessed. This is tantamount to compelling their production; for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of. It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching amongst his papers, are wanting; and to this extent the proceeding under the Act of 1874 is a mitigation of that which was authorized by the former Acts; but it accomplishes the substantial object of those Acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him or to forfeit his property is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient and effects the sole object and purpose of search and seizure. The principal question, however, remains to be considered. Is a search and seizure or, what is equivalent thereto, a compulsory production of a man's private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws is such a proceeding for such a purpose unreasonable search and seizure" within the meaning of the Fourth Amendment of the an Constitution? Or is it a legitimate proceeding! It is contended by the counsel for the Govern ment that it is a legitimate proceeding, sanc tioned by long usage and the authority of ju dicial decision. No doubt long usage, acquiesced in by the courts, goes a long way to prove that there is some plausible ground or reason for it, in the law or in the historical facts which have imposed a particular construction of the law favorable to such usage. It is a maxim that Consuetudo est optimus interpres legum; and another maxim that Contemporanea expositio est optima et fortissima in lege. But we do not find any long usage or any contem porary construction of the Constitution which would justify any of the Acts of Congress now under consideration. As before stated, the Act of 1863 was the first Act in this country, and we might say either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a [ man's private papers or the compulsory pro duction of them, for the purpose of using them in evidence against him in a criminal case, or in a proceeding to enforce the forfeiture of his property. Even the Act under which the ob noxious writs of assistance were issued* did not go as far as this, but only authorized the examination of ships and vessels and persons found therein, for the purpose of finding goods prohibited to be imported or exported, or on which the duties were not paid; and to enter into and search any suspected vaults, cellars or warehouses for such goods. The search for and seizure of stolen or forfeited goods or goods liable to duties and concealed to avoid the payment thereof are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining infor mation therein contained, or of using them as evidence against him. The two things differ toto calo. In the one case, the Government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own Revenue Acts from the commencement of the Government. The first statute passed by Congress to regulate the collection of duties, the Act of July 31, 1789, 1 Stat at L. 43, contains provisions to this effect. As this Act was passed by the same Congress which proposed for adoption the original Amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as "unreasonable," and they are not embraced within the prohibition of the Amendment. So also the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, *13 & 14 Car. 2, chap. 11 § 5. +12 Car. 2, chap. 19; 13 & 14 Car. 2, chap. 11; 6 & 7 W. & M., chap. 1; 6 Geo. 1, chap. 21; 26 Geo. 3, chap. 59; 29 Geo. 3, chap. 68, § 153; etc.; and see the article "Excise, etc.," in Burn's Justice, and Williams' Justice. passim, and Evans' Statutes, Vol. 2, p. 221, sub-pages 176, 190, 225, 361, 431, 447. are necessarily excepted out of the category of reasonable searches and seizures. So also the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within this category. Comnitealth v. Dana, 2 Met. 329. Many other things of this character might be enumerated. The entry upon premises, made by a sheriff or other officer of the law, for the purpose of seizing goods and chattels by virtue of a judicial writ, such as an attachment, a sequestration or an execution, is not within the prohibition of the Fourth or Fifth Amendment or any other cisuse of the Constitution; nor is the examination of a defendant under oath after an ineffectnal execution, for the purpose of discovering secreted property or credits, to be applied to the payment of a judgment against him, obnoxious to those Amendments. But when examined with care, it is Lanifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. In the case of stolen goods, Lae owner from whom they were stolen is entitled to their possession; and in the case of excisable or dutiable articles, the Government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment; and in the case of goods seized on attachment or execution, the creditor is entitled to their seizure in satisfaction of his debt; and the examination of a defendant under oath to obtain a discovery of concealed property or credits is a proceeding merely civil to effect the ends of justice, and is no more than what the court of chancery would direct on a bill for discovery: whereas, by the proceeding now under consideration, the court attempts to extort from the party his private books and papers to make him Lat fe for a penalty or to forfeit his property. In order to ascertain the nature of the proceedings intended by the Fourth Amendment to the Constitution under the terms "unreasonabe searches and seizures," it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this ntry and in England. The practice had obtained in the Colonies, of issuing writs of assistance to the revenue officers, empowering tem, in their discretion, to search suspected paces for smuggled goods, which James Otis pronounced "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental_principles of law, that ever was found in an English law book;" since 2y placed "the liberty of every man in the bands of every petty officer."* This was in Ferary, 1761, in Boston, and the famous dete which it occurred was perhaps the most - minent event which inaugurated the resistCooley, Const. Lim., 301-303. A very full and intit account of this discussion will be found in *he works of John Adams, Vol. 2, app. A, pp. 523Vo. 10, pp. 183, 233, 244, 256, etc., and in Quincy's ke parts, pp. 409-482; and see Paxton's Case, do.51-57, was argued in November of the same year, An elaborate history of the writs of assistance is given in the appendix to Quincy's Reports, sose referred to, written by Horace Gray, Jr., now a member of this court. ance of the colonies to the oppressions of the These things and the events which took place As every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it as the true and ultimate expression of constitutional law, it may be confidently asserted that its proposi tions were in the minds of those who framed the Fourth Amendment to the Constitution, and were considered as sufficiently explanatory of See May, Const. Hist. of England. Vol. 3, chap. 11; Broom, Constitutional Law, 558; Cox, Institutions of the English Government, 437. [627] [628] After describing the power claimed by the Secretary of State for issuing general search warrants, and the manner in which they were executed, Lord Camden says: "Such is the power and therefore one would naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant. If it is law, it will be found in our books; if it is not to be found there, it is not law. claim his goods, even after his innocence is declared by acquittal. "The case of searching for stolen goods crept into the law by imperceptible practice. No less a person than my Lord Coke denied its legality (4 Inst. 176); and, therefore, if the two cases resembled each other more than they do, we have no right, without an Act of Parliament, to adopt a new practice in the criminal law, which was never yet allowed from all antiquity. Observe, too, the caution with which the law proceeds in this singular case. There must be a full charge upon oath of a theft committed. The owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant, to show them to the of ficer, who must see that they answer the description. *** that all these precautions would have been long since established by law, if the power itself had been legal; and that the want of them is an undeniable "gument against the legality of the thing.' " The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of "If it should be said that the same law which the whole. The cases where this right of prop- has with so much circumspection guarded the erty is set aside by positive law are various. case of stolen goods from mischief, would likeDistresses, executions, forfeitures, taxes, etc., wise in this case protect the subject by adding are all of this description, wherein every man proper checks; would require proofs beforeby common consent gives up that right for the hand; would call up the servant to stand by and sake of justice and the general good. By the overlook; would require him to take an exact laws of England, every invasion of private prop-inventory, and deliver a copy, my answer is erty, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license but he is liable to an action though the damage be nothing; which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification that some positive law has justified or excused him. The justification is submitted to the judges, who are to look into the books and see if such a justification can be main- "Lastly, it is urged as an argument of utility, tained by the text of the statute law or by the that such a search is a means of detecting principles of the common law. If no such ex-offenders by discovering evidence. I wish some cuse can be found or produced, the silence of the books is an authority against the defendant and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass. 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; and though the eye cannot by the laws of England be guilty of a trespass, yet, where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and, therefore, it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society. Then, after showing that these general warrants for search and seizure of papers originated with the Star Chamber, and never had any advocates in Westminster Hall except Chief Jus tice Scroggs and his associates, Lord Camden proceeds to add: cases had been shown, where the law forceth evidence out of the owner's custody by process. There is no process against papers in civil causes. It has been often tried but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. In the criminal law such a proceeding was never heard of; and yet there are some crimes, such, for instance as murder, rape, robbery and house breaking, to say nothing of forgery and perjury, that are more atrocious than libeling. But our law has provided no paper search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself; because the necessary means of compelling self accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem that search for evidence is disallowed upon the same principle. Then, too, the innocent would be confounded with the guilty." "But though it cannot be maintained by any direct law, yet it bears a resemblance, as was urged, to the known case of search and seizure for stolen goods. I answer that the difference is apparent. In the one I am permitted to seize my own goods, which are placed in the After a few further observations, His Lordhands of a public officer, till the felon's convic- ship concluded thus: "I have now taken notice tion shall entitle me to restitution. In the other, of everything that has been urged upon the the party's own property is seized before and present point; and upon the whole we are all of without conviction, and he has no power to re-opinion that the warrant to seize and carry way the party's papers in the case of a sedi- | comply with such order to produce books or tions libel is illegal and void."* The principles laid down in this opinion 11 affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions, on the part of the Government and its employees, of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his dmwers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public fense; it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other. Can we doubt that when the Fourth and Fifth Amendments to the Constitution of the United States were penned and adopted, the language of Lord Camden was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and unreasonable character of sich seizures? Could the men who proposed those Amendments, in the light of Lord CamCen's opinion, have put their hands to a law like those of March 3, 1863, and March 2, 1867, before recited? If they could not, would they Lave approved the fifth section of the Act of June 22, 1874, which was adopted as a substitute for the previous laws? It seems to us that te question cannot admit of a doubt. They Dever would have approved of them. The riggles against arbitrary power, in which they Lad been engaged for more than twenty years, would have been too deeply engraved in their memories to allow them to approve of such insidious disguises of the old grievance which they had so deeply abhorred. The views of the first Congress on the questot of compelling a man to produce evidence ainst himself may be inferred from a remark ale section of the Judiciary Act of 1789. The enth section of that Act introduced a great improvement in the law of procedure. The stance of it is found in section 724 of the Revised Statutes, and the section as originally eacted is as follows, to wit: Ail the said courts of the United States shall have power in the trial of actions at law, on it and due notice thereof being given, to reire the parties to produce books or writings eir possession or power, which contain evisex pertinent to the issue, in cases and under amstances where they might be compelled to fuse the same by the ordinary rules of proceedwin chancery; and if a plaintiff shall fail to further as to searches and seizures, Story, #4 1901, 1902, and notes; Cooley. Const. Lim. ig. Stat. & Const. Law, 2d ed. 498; Wharton, An Law, 560, RobinsoL v. Richardson, 13 writings, it shall be lawful for the courts re- The restriction of this proceeding to "cases It is proper to observe that when the objectionable features of the Acts of 1863 and 1867 were brought to the attention of Congress, it passed an Act to obviate them. By the Act of February 25, 1868 (15 Stat. at L. 37), entitled "An Act for the Protection in Certain Cases of Persons Making Disclosures as Parties, or Testifying as Witnesses," the substance of which is incorporated in section 860 of the Revised Statutes, it was enacted "that no answer or other pleading of any party, and no discovery or evidence obtained by means of any judicial proceeding from any party or witness in this or any foreign country, shall be given in evidence, or in any manner used against such party or witness, or his property or estate, in any court of the United States, or in any proceeding by or before any officer of the United States, in respect to any crime, or for the enforcement of any penalty or forfeiture by reason of any act or omission of such party or witness." This Act abrogated and repealed the most objectionable part of the Act of 1867 which was then in force, and deprived the government officers of the convenient method afforded by it for getting evidence in suits of forfeiture; and this is probably the reason why the fifth section of the Act of 1874 was afterwards passed. No doubt it was supposed that in this new form, couched as it was in almost the language of the fifteenth section of the old Judiciary Act, ex *Sixty-two years later a similar Act was passed in 6. See Pollock, Power of Courts to Compel ProEngland, viz.: the Act of 14 and 15 Vict. chap. 99, duction of Documents, 5. +See Pollock, Production of Documents, 27; 77 Law Lib. |