cept leaving out the restriction to cases in which | ute; and it is declared that the offender shall be the court of chancery would decree a discovery, fined not exceeding $5,000, nor less than $50, it would be free from constitutional objection. or be imprisoned not exceeding two years, or But we think it has been made to appear that both; and in addition to such fine such merthis result has not been attained; and that the chandise shall be forfeited. These are the penlaw, though very speciously worded, is still ob-alties affixed to the criminal acts; the forfeiture noxious to the prohibition of the Fourth Amend- sought by this suit being one of them. If an ment of the Constitution, as well as of the Fifth. indictment had been presented against the It has been thought by some respectable mem- claimants, upon conviction the forfeiture of the bers of the profession that the two Acts, that of goods could have been included in the judg 1868 and that of 1874, as being in pari materia, ment. If the government prosecutor elects to might be construed together so as to restrict the waive an indictment and to file a civil informaoperation of the latter to cases other than those tion against the claimants (that is, civil in form) [633] of forfeiture; and that such a construction of can he by this device take from the proceeding the two Acts would obviate the necessity of de- its criminal aspect and deprive the claimants of claring the Act of 1874 unconstitutional. But their immunities as citizens, and extort from as the Act of 1874 was intended as a revisory them a production of their private papers, or, Act on the subject of revenue frauds and pros- as an alternative, a confession of guilt? This ecutions therefor, and as it expressly repeals the cannot be. The information, though technisecond section of the Act of 1867 but does not cally a civil proceeding, is in substance and efrepeal the Act of 1868, and expressly excepts fect a criminal one. As showing the close recriminal suits and proceedings and does not ex-lation between the civil and criminal proceedcept suits for penalties and forfeitures, it would ings on the same statute in such cases, we may hardly be admissible to consider the Act of 1868 refer to the recent case of Coffey v. U. S. [ante, as having any influence over the construction of 684], in which we decided that an acquittal on the Act of 1874. For the purposes of this dis- a criminal information was a good plea in bar cussion we must regard the fifth section of the to a civil information for the forfeiture of goods latter Act as independent of the Act of 1868. arising upon the same acts. As, therefore, suits Reverting then to the peculiar phraseology for penalties and forfeitures, incurred by the of this Act and to the information in the pres- commission of offenses against the law, are of ent case, which is founded on it, we have to this quasi criminal nature, we think that they deal with an Act which expressly excludes are within the reason of criminal proceedings criminal proceedings from its operation, al- for all the purposes of the Fourth Amendment though embracing civil suits for penalties and of the Constitution, and of that portion of the forfeitures, and with an information not tech- Fifth Amendment which declares that no pernically a criminal proceeding, and neither, there- son shall be compelled in any criminal case to fore, within the literal terms of the Fifth be a witness against himself; and we are furAmendment to the Constitution any more than ther of opinion that a compulsory production it is within the literal terms of the Fourth. Does of the private books and papers of the owner of this relieve the proceedings or the law from be- goods sought to be forfeited in such a suit is ing obnoxious to the prohibitions of either? compelling him to be a witness against himself, We think not; we think they are within the within the meaning of the Fifth Amendment spirit of both. to the Constitution; and is the equivalent of a search and seizure, and an unreasonable search and seizure, within the meaning of the Fourth Amendment. Though the proceeding in question is devested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and es sence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent ap proaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become devel oped by time and the practical application of the objectionable law.

We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the "unreasonable searches and seizures" condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man "in a criminal case to be a witness against himself," which is condemned in the Fifth Amendment, throws light on the question as to what is an "unreasonable search and seizure" within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms. We are also clearly of opinion that pro[634] ceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. In this very case, the ground of forfeiture as declared in the twelfth section of the Act of 1874, on which the information is based, consists of certain acts of fraud committed against the public revenue in relation to imported merchandise, which are made criminal by the stat

ون

unnecessary to make any special observations
on this decision. In U. S. v. Mason, Judge Blod-
gett took the distinction that in proceedings in
rem for a forfeiture, the parties are not required
by a proceeding under the Act of 1874 to testi-
fy or furnish evidence against themselves, be-
cause the suit is not against them but against
the property. But where the owner of the
property has been admitted as a claimant, we
cannot see the force of this distinction; nor can
we assent to the proposition that the proceeding
is not, in effect, a proceeding against the owner
of the property, as well as against the goods;
for it is his breach of the laws which has to be
proved to establish the forfeiture, and it is his
property which is sought to be forfeited; and
to require such an owner to produce his private
books and papers, in order to prove his breach
of the laws, and thus to establish the forfeiture
of his property is surely compelling him to fur-
nish evidence against himself. In the words
of a great judge: "Goods, as goods, cannot of-
fend, forfeit, unlade, pay duties or the like, but
men whose goods they are.'

There have been several decisions in the cir- ing used against him in any prosecution for a cuit and district courts sustaining the constitu- cririe, penalty or forfeiture. Judgment being tonality of the law under consideration, as well rendered for the defendant, the case was caras the prior laws of 1863 and 1867. The prin- ried to the circuit court by writ of error; and cipal of these are Stockwell v. U. S. 3 Cliff. 284; in that court Mr. Justice Hunt held that the Act I Platt and Boyd, 7 Benedict, 261; U. S. v. of 1868 referred only to personal testimony or Hughes, 12 Blatchf. 553; U. S. v. Mason, 6 Biss. discovery obtained from a party or witness, and 350; U.S.v. Three Tons of Coal, Id. 379; U. S. not to books or papers wrested from him; and v. Distillery No. 28, Id. 483. The first and lead- as to the constitutionality of the law, he mereing case was that of Stockwell v. U. S. decidedly referred to the Case of Stockwell, and the by Mr. Justice Clifford and Judge Shepley, the judgment of the district court was reversed. In law under discussion being that of 1867. Jus-view of what has been already said, we think it tice Clifford delivered the opinion and relied principally upon the collection statutes, which authorized the seizure of goods liable to duty, as being a contemporaneous exposition of the Amendments, and as furnishing precedents of laws analogous to that complained of. As we have already considered the bearing of these laws on the subject of discussion, it is unnecessary to say anything more in relation to them. The learned justice seemed to think that the power to institute such searches and seizures as The Act of 1867 authorized, was necessary to the efficient collection of the revenue, and that DO greater objection can be taken to a warrant to search for books, invoices, and other papers appertaining to an illegal importation than to one authorizing a search for the imported goods; and he concluded that, guarded as the new provision is, it is scarcely possible that the citizen can have any just ground of complaint. It seems to us that these considerations fail to meet the most serious objections to the validity of the law. The other cases followed that of Stockrev. U. 8. as a precedent, with more or less independent discussion of the subject. The The only remaining case decided in the case of Platt and Boyd, decided in the District United States courts to which we shall advert Court for the Southern District of New York, is that of U. S. v. Distillery No. 28. In that was also under the Act of 1867, and the opin-case Judge Gresham adds to the view of Judge on in that case is quite an elaborate one; but, of course, the previous decision of the circuit court in the Stockwell Case had a governing infence on the district court. The other cases referred to were under the fifth section of the Act of 1874. The case of U. S. v. Hughes came up, first, before Judg. Blatchford in the district court in 1875, 8 Ben. 26 It was an action of cebt to recover a penalty under the Customs Act, and the judge held that the fifth section of the Act of 1874, in its application to suits for penalties incurred before the passage of the Act, was an ex post facto law, and therefore, as tr them, was unconstitutional and void; but he anted an order pro forma to produce the books and papers required, in order that the objection Echt come up on the offer to give them in evidence. They were produced in obedience to the order, and offered in evidence by the distre attorney, but were not admitted. The district attorney then served upon one of the defendants a subpœna duces tecum, requiring him produce the books and papers; and this bedeclined, he moved for an order to compel to produce them; but the court refused to ake such order. The books and papers referred to had been seized under the Act of 1867, but were returned to the defendants under a piation to produce them on the trial. The defants relied not only on the unconstitutiony of the laws, but on the Act of 1868, before rred to, which prohibited evidence obtained fre a party by a judicial proceeding from be

Blodgett, in U. S. v. Mason, the further sug-
gestion that as in a proceeding in rem the owner

not a party, he might be compelled by a
subpoena duces tecum to produce his books and
papers like any other witness; and that the
warrant or notice for search and seizure, under
the Act of 1874, does nothing more.
But we
cannot say that we are any better satisfied with
this supposed solution of the difficulty. The
assumption that the owner may be cited as a
witness in a proceeding to forfeit his property
seems to us gratuitous. It begs the question at
issue. A witness, as well as a party, is pro-
tected by the law from being compelled to give
evidence that tends to criminate him, or to sub-
ject his property to forfeiture. Queen v.
Newel, Parker, 269; 1 Greenl. Ev. §§ 451-453.
But, as before said, although the owner of
goods, sought to be forfeited by a proceeding
in rem, is not the nominal party, he is never-
theless the substantial party to the suit; he
certainly is so, after making claim and defense;
and in a case like the present he is entitled to
all the privileges which appertain to a person
who is prosecuted for a forfeiture of his prop-
erty by reason of committing a criminal of
fense.

We find nothing in the decisions to change
our views in relation to the principal question
at issue.

159, 172, approved by Ch. Baron Parker in Mitchell
v. Torup, Parker, 27, 236.

*Vaughan, C. J., in Shepherd v. Gosnold, Vaugh.

[638]

[639]

[640]

We think that the notice to produce the inVoice in this case, the order by virtue of which it was issued, and the law which authorized the order, were unconstitutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were erroneous and unconstitutional proceedings.

We are of opinion, therefore, that the judgment of the Circuit Court should be reversed, and the cause remanded, with directions to award a new trial; and it is so ordered.

Separate opinion by Mr. Justice Miller:

I concur in the judgment of the court, reversing that of the Circuit Court, and in so much of the opinion of this court as holds the fifth section of the Act of 1874 void as applicable to the present case.

I am of opinion that this is a criminal case within the meaning of that clause of the Fifth Amendment to the Constitution of the United States which declares that no person "shall be compelled in any criminal case to be a witness against himself."

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 notice of suit in the same court is 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, unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if produced, the said attorney shall be permit ted, under the direction of the court, to make examination (at which examination the defendant or claimant, or his agent, may be present) of such entries in said book, invoice or paper as relate to or tend to prove the allegation aforesaid, and may offer the same in evidence on behalf of the United States. But the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid." 18 Stat. at L. 187.

Nothing in the nature of a search is here hinted at. Nor is there any seizure, because And I am quite satisfied that the effect of the the party is not required at any time to part Act of Congress is to compel the party on with the custody of the papers. They are to whom the order of the court is served to be a be produced in court and when produced the witness against himself. The order of the United States Attorney is permitted, under the court under the statute is in effect a subpæna direction of the court, to make examination in duces tecum; and though the penalty for the presence of the claimant, and may offer in eviwitness' failure to appear in court with the dence such entries in the books, invoices or criminating papers is not fine and imprison- papers as relate to the issue. The Act is care ment, it is one which may be made more severe, ful to say that "the owner of said books and namely: to have charges against him of a crim-papers, his agent or attorney shall have, subject inal nature taken for confessed and made the to the order of the court, the custody of them, foundation of the judgment of the court. except pending their examination in court as That this is within the protection which the aforesaid." Constitution intended against compelling a person to be a witness against himself, is, I think, quite clear.

But this being so, there is no reason why this court should assume that the action of the court below, in requiring a party to produce certain papers as evidence on the trial, authorizes an unreasonable search or seizure of the house, papers or effects of that party.

There is in fact no search and no seizure authorized by the statute. No order can be made by the court under it which requires or permits anything more than service of notice on a party to the suit. That there may be no mistake as to the effect of the statute and the power to be exercised under it, I give the section here verbatim:

66

"The right

The Fourth Amendment says: of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized."

The things here forbidden are two: search and seizure. And not all searches or all seizures are forbidden, but only those that are unreasonable. Reasonable searches, therefore, may be allowed; and if the thing sought be found, it may be seized.

But what search does this statute authorize? If the mere service of a notice to produce a paper to be used as evidence, which the party Sec. 5. That in all suits and proceedings can obey or not as he chooses is a search, then other than criminal arising under any of the a change has taken place in the meaning of revenue laws of the United States, the attorney words, which has not come within my reading, representing the government, whenever, in his and which I think was unknown at the time belief, any business book, invoice or paper, be- the Constitution was made. The searches longing to or under the control of the defend-meant by the Constitution were such as led to ant 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

seizure when the search was successful. But the statute in this case uses language carefully framed to forbid any seizure under it, as I have already pointed out.

While the framers of the Constitution had their attention drawn, no doubt, to the abuses of this power of searching private houses and seizing private papers, as practiced in England, it is obvious that they only intended to restrain the abuse, while they did not abolish the power. Hence it is only unreasonable searches and seiz

NORTHERN PACIFIC RAILROAD COM- even if a new trial should be granted, Weaver

below in this suit are, to all intents and purposes, identical with those since settled by this court in the following cases:

Strauder v. West Va., and Ex parte Va. 100 U. S. 303, 349 (Bk. 25, L. ed. 664, 680); Neal v. Del. 103 U. S. 370 (Bk. 26, L. ed. 567).

Among the points necessarily adjudicated in those cases were: first, that the rights of suitors in the composition of juries are not limited to the negative one that the biased and interested shall be excluded, but embrace an affirmative one extending even to the race and color of those who may be admitted; or, in other words, that those rights extend to who shall be suffered to go on to the jury as well as to who shall be put off from it; and second, that the erroneous exclusion from the jury box of those who should have been admitted forms a ground for reversal.

The trial court erred in denying defendant's motion to dismiss the suit upon the ground that the plaintiff had failed to establish any cause of action against the defendant; and also in refusing the several requests of the defendant that the jury be instructed to find in its favor.

The evidence failed to disclose any omission by the Company to do what it had undertaken to do by its contract of hiring.

The evidence conclusively showed the omission, on Herbert's own part, to do what the circumstances required for self protection.

The evidence further conclusively showed that if Herbert's injuries are attributable to omissions of others than himself, such others were persons employed by the same master in the same general business.

tained injuries by the negligence of a fellow servant intrusted with the duty of keeping machinery in order, been compelled to admit that the employé who selects machinery and keeps it in repair and the one who uses it are fellow workmen.

Laning v. N. Y. C. R. R. Co. 49 N. Y. 521. By force of Section 6 of the Civil Code, the common law upon the subject of the liabilities of masters to their servants has been superseded in Dakota Territory, and the whole law upon that subject is to be found in sections 11291131. If any rule of the common law has not been embodied in these sections, it must be deemed to have been purposely omitted therefrom and to have been expurgated from the jurisprudence of the Territory.

It will be observed that while section 1130 embodies the general rule of the common law, it is silent regarding that exception making the master liable when the subject of the neglect by one servant is the condition of machinery to be used by another.

It is, however, of high importance to observe that one of the two or three exceptions from the common-law rule has been incorporated with this section of the Civil Code.

Side by side with the exception relating to machinery, the courts have ranked another one, to the effect that the general rule shall not apply unless there has been exercised due care in the selection of the guilty servant.

This exception the Legislature has thought it wise to retain. Its retention proves that the Legislature had specifically under view the sub ject of the common-law exceptions to the gen The accident is not attributable to any omis-eral rule, and decided to retain this one only. sion by the Company, because:

(a) The rule of law, making an employer re sponsible to an employé using machinery for the care of another employé charged with the duty of keeping such machinery in order, is not in force in Dakota Territory.

(b) Even if such a rule were in force there, it would not be applicable to such an employment as Herbert's.

Even if the exception to the general rule, in grafted thereon by the common law, existed in Dakota Territory, that exception could not ap ply to Herbert's case.

There is no resemblance between the case of putting into the hands of train men a train of cars ready to start out upon its run, or even placing cars in the hands of yard men, to be made up into a train for starting upon its run, and that of placing in the hands of the latter > train of cars, which has just arrived at a ter minal yard, as its ultimate destination, for dis

That the liability of a master to one servant, for negligence of another, in respect to keeping machinery in order, is nothing more than an exception to the general rule governing the re-tribution. sponsibility of the master, has been decided by this court.

Hough v. R. R. Co. 100 U. S. 213 (Bk. 25, L.ed. 612). See Besei o. N. Y. C. & H.R.R.R.Co.70 N. Y. 171; King v. Boston etc. R. R. Corp. 9 Cush. 112; Gillshannon v. S. B. R. R. Corp. 10 Cush. 228; Seaver v. Boston, etc. R. R. 14 Gray, 466; Gilman v. Eastern R. R. Corp. 10 Allen, 233; 13 Allen, 433; Holden v. Fitchburg R.R. Co. 129 Mass. 268; Walker v. Boston etc. R. R. 128 Mass. 8.

In each and every one of these cases this state of facts existed: a servant charged exclusively with the duty of keeping machinery in repair was hurt by the negligence of another servant charged exclusively with the duty of using the same machinery, or vice versa; for, tracks, bridges and switches are, in respect to the responsibility of the master, to be viewed in the same light as cars or locomotives.

The courts of these States have, in their opinfons in cases recognizing and enforcing the liability of the master to a servant who has sus

The cars in this train had not been put into Herbert's hands as fit to do service upon the road. On the contrary, they were turned over to him that they might be placed for unloading, so that the requisite repairs could be ascer tained and executed.

The following cases are decisive upon th point: Yeaton v. Boston, etc. R R. Corp. 1: Mass. 418; Gibson v. N. C. R. Co. 22 Hun, 28 McCosker v. L. 1. R. R. Co. 84 N. Y. 77; Fla agan v. Chicago, etc. R. R. Co. 45 Wis. 98; Fla nagan v. Chicago, etc. R. R. Co. 50 Wis. 46. Brick v. Rochester R. R. Co. 98 N. Y. 211.

The accident resulted from Herbert's own carelessness. The evidence showed conclu sively that Herbert knew the train to have just arrived in the yard, after having encountered the perils and endured the wear and tear of the road. It did not appear from the evidence, that the Company had specially provided any serv ant whose exclusive duty it should be to look after the safety of the other workmen in the