In the American colonies before 1776, there did not exist any meaningful right to be secure against unreasonable search and seizure. By then, however, many colonists had come to believe that among the rights enjoyed by Englishmen was protection of their homes against intrusion by the Crown. Justice Felix Frankfurter would state that the abuses of the Crown in invading private homes ‘‘more than any other single factor gave rise to American independence.’’ Within fifteen years after the Declaration of Independence, those beliefs had been translated into the Fourth Amendment.
In the centuries between Magna Carta and American independence, English political theorists wove together what one scholar has called the ‘‘appealing fiction that a man’s home is his castle.’’ That this idea had little basis in law or in fact mattered little, because gradually—despite practices that continuously showed the power of the Crown to search where it pleased—people began to believe it. In 1763, William Pitt rose before Parliament and declared that
The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter, the rain may enter, but the King of England may not enter; all his force dare not cross the threshold of the ruined tenement.
By then the idea that a man’s home was his castle had penetrated deeply into popular thought and even into statements from the bench. As early as 1505 the chief justice of the King’s Bench had noted that ‘‘the house of a man is for him his castle and his defence.’’ Yet one century later, in the Court of Common Pleas, a judge declared that although a man’s house could not be searched by his neighbors, it could be in every instance in which the king was a party. Privacy meant nothing if the government sought to capture felons or find evidence of their criminality. The government could—and did—engage in general searches, where officers might go from house to house, entering as they pleased, and ransacking the contents in search of evidence, and all of this without any sort of court order.
During the fifteenth century, Tudor monarchs used a general warrant—that is, one that did not identify a particular place or even a particular person—in seeking out religious dissidents and their heretical books. Although some victims claimed that their rights had been violated, neither Crown nor courts paid that claim any heed. Moreover, the methods used by the Crown’s soldiers, including sledgehammers to break open walls and floors in search of hidden compartments, evoked no protest except from those whose homes had been damaged. And should evidence be found, it could be used to prosecute, even if it led to the death penalty. No conception of ‘‘illegally seized evidence’’ existed in either English law or practice.
The Puritan Revolution in the mid-seventeenth century did little to change things. In fact, after the Stuarts returned to power, the House of Lords issued dozens of general warrants in an effort to regain property that had been confiscated by the Puritans. Parliament also authorized the use of general warrants to enforce a variety of laws, especially the wide range of tax measures, as well as those criminalizing particular activities, such as counterfeiting, poaching, or religious heresy.
Beginning in the late sixteenth century, however, some jurists and political philosophers began constructing a conceptual argument against general warrants. Robert Beale, the clerk of the Privy Council, linked the Magna Carta to the opposition to general warrants, especially to Chapter 39, which declared that no man should be condemned without proceedings by the law of the land. If the Crown could enter wherever and whenever it pleased, carrying off whatever evidence it pleased and then using it to condemn a man to prison or to death, how did this comport with the law of the land? The Magna Carta, a document the barons forced King John to sign so as to protect their holdings and lives, was being transformed into a more general shield for the gentry and middle classes. Sir Edward Coke, the lord chief justice, gave his authority to this interpretation of Chapter 39, declaring that it required the Crown to seek a specific warrant before a search. Coke, however, when he had been attorney general had used general warrants extensively, and probably changed his mind only after he had become a victim of a search and ransacking of his papers in 1621 ordered by King James I himself.
Yet despite this increasing sense that general warrants somehow violated individual rights, courts did little to undo their work, and manuals written in the seventeenth and eighteenth century for the use of judges of the peace and other judicial officers all held general warrants to be legal. The House of Commons, while damning general warrants as ‘‘against law and the liberties of the subject,’’ nonetheless authorized general warrants repeatedly. The writings of such legal luminaries as Beale, Coke, Overton, Penn, Hale, and even Sir William Blackstone, all condemned general warrants, yet appear to have had little effect in doing away with them. The Commons that heard Pitt declaim about the sanctity of a man’s home went on, as soon as he had finished speaking, to pass an excise bill containing provisions for the use of general warrants, and its cousin, the writ of assistance. The writ of assistance was a general warrant that commanded not only officers of the government, but all bystanders and neighbors as well, to join in and assist the search. It descended from the old ‘‘hue and cry,’’ in which all citizens had to join in the chase after a suspected criminal.
But despite the continuation in practice of the general warrant, the accumulating arguments against it began to coalesce into a coherent philosophy. The triggering event, which turned abstract thought into real opposition, came with the arrest of John Wilkes, a member of Parliament, for his criticism of and insult to a speech by the king in 1763 in number 45 of Wilkes’s journal, The North Briton. The secretary of state then issued a general warrant to find and arrest everyone connected with that issue, and to seize evidence related to it. Forty-nine people were arrested, and soon after the Crown commenced some two hundred prosecutions, all the while arresting people right and left on the flimsiest of charges, searching their houses, and confiscating all sorts of materials. Eventually some of the printers confessed their ‘‘crimes’’ and identified Wilkes as the author of the article. Officers broke down the doors of his house, confiscated his books and hundreds of pages of manuscript writings, all on a general warrant. The Commons voted that North Briton number 45 constituted seditious libel and expelled Wilkes from the body. In court he was convicted for criminal publications, outlawed, jailed, and fined.
The Crown, however, had caught a tiger by the tail. Wilkes filed suits for trespass against everyone connected with the general warrant, from the lowest clerks on up to ministers of state, and this led others who had been swept up in the persecution to file similar suits as well. The government had arrested almost two hundred people, and nearly all of them now filed suit. Libertarians in England rallied to Wilkes’s defense, spurred on by his own writings, and he became a popular idol, the champion of constitutional liberties in both England and in the colonies. News about the various cases resulting from the suits of Wilkes and his followers filled the pages of American newspapers from Massachusetts to South Carolina.
In cases such as Wilkes v. Wood (1763) and Huckle v. Money (1763), juries found for the plaintiffs against government officials, and awarded punitive monetary damages out of all proportion to the amount of harm suffered. In the Huckle case, Chief Justice Charles Pratt, later Lord Camden, charged the jury saying: ‘‘To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition, a law under which no Englishman would wish to live an hour.’’ He condemned the general warrant because it failed to specify the names of the suspects, and because it had not been issued on a complaint made by oath. Although not going so far as to void all general warrants, he insisted that they specify the places to be searched and the type of evidence to be seized.
Pratt also presided over the Wilkes lawsuit, and there he called a search by general warrant ‘‘totally subversive of the liberty of the subject,’’ and ordered the jury to return a verdict for Wilkes. The jurors did and awarded £1,000; in a second trial he won an additional £4,000 against the secretary of state who had issued the general warrant. All in all, the government had to pay out more than £100,000 in costs and judgments as a result of the attack on Wilkes and his allies. In order to avoid this payment, the Crown appealed to nation’s highest criminal court, the King’s Bench, only to have Lord Chief Justice Mansfield declare the government warrants illegal. Although the government kept persecuting Wilkes, its efforts were continuously thwarted by the courts.
Moreover, it led to one of the more remarkable documents in English political and legal thought, An Enquiry into the Doctrine Lately Propagated Concerning Libels, Warrants, and Seizures of Papers (1764) by an author calling himself ‘‘Father of Candor.’’ The author, who may have been Lord Camden, chief justice of the Court of Common Pleas, condemned the general warrant as an instrument inconsistent with every idea of liberty. The book went through several editions, and was read on both sides of the Atlantic.
The Wilkes case and the literature resulting from it stirred up the colonies, who by the mid-1760s had already embarked on the road to independence. ‘‘Wilkes and Liberty’’ became a slogan that patriot leaders endlessly exploited. In New York, Alexander McDougall, a leader of the Sons of Liberty, was imprisoned for his attack on a bill to provide provisions for the king’s troops. He labeled himself as an American Wilkes, and the Sons of Liberty kept up a constant series of protests on his behalf. Moreover, the writings of jurists such as Coke and Blackstone, as well as ‘‘Father of Candor,’’ all made their way into the context of American political debate, and were well-known to patriot leaders by the time the Continental Congress met in Philadelphia.
Yet it should be noted that through most colonial history, general warrants had been the norm, and even after Englishmen began to complain about them, the colonists apparently tolerated—or ignored—them until the 1760s. The acceptability of the general warrant had crossed the Atlantic with the settlers, and it had been used by colonial governors and assemblies with the same zeal as had been shown by the Crown and Parliament. In Massachusetts, for example, general warrants had been used in the effort to eradicate Quakers from the colony. In the Southern states, general warrants existed well past the Revolution when used to hunt for runaway slaves or to put down slave rebellions. As late as 1749, the Conductor Generalis, the most popular manual in the colonies for use by judges of the peace and other law officers, listed only two specific warrants, one for the search of a particular home and the other to find identifiable stolen goods. Otherwise, the general warrant should be used for enforcing excise taxes and other laws.
The colonists began to resist in the late 1750s and early 1760s when the imperial government, attempting to increase revenue to cover the costs of the sevenyear war with France, passed a series of tax measures and attempted to enforce them. Local officers of the Crown then learned that Americans knew not only about Wilkes, but about other attacks on general warrants, and in fact, some people opposed warrants of any sort. In 1759 a sheriff in Maryland attempted to break into a house to serve a legitimate arrest warrant, only to be shot to death. Because of the extensive smuggling that existed up and down the Atlantic seaboard, most colonists either engaged in smuggling directly or indirectly, or were neighbors to someone who did. Thus one ship owner, reflecting his awareness of English theory, declared that
[m]y home is my castle, and so is my ship, and therefore I lay it down as fundamental law of Nations, that if the greatest officer of the King was to come with a thousand warrants against me for a crime whatsoever, if he offered to take me out of my castle, I can kill him, and the law will bear me out.
The law might not, but in all likelihood no jury of his neighbors would convict him. The colonists may not have come up with the sophisticated arguments of a Coke, Blackstone, or ‘‘Father of Candor,’’ but they put those ideas into practice by resisting the execution not just of general warrants, but of all warrants.
What many historians see as a critical moment both in colonial history as well as in the development of arguments against a general warrant came in 1761. General warrants, like all English judicial writs, ran in the name of the king, and thus once issued remained in force so long as the monarch lived. George II died in 1760, and so customs officers in Boston had to apply to the courts for new writs. In Boston, merchants who opposed the writs of assistance that had been used to enforce custom duties and justify breaking and entering by customs officers looking for smuggled goods, hired James Otis to argue against the issuance of new writs.
In his argument, Otis wove together fiction and fact, much as did his English contemporaries, to argue that British law ever since Magna Carta made general warrants unlawful. He claimed that only specific warrants could be lawful, and may have been the first to make that claim. Moreover, Otis appealed to what he called a higher law, the law of the English Constitution and the law of Providence, which, he claimed, outweighed any statutes authorizing general warrants. The fact that Parliament had issued general warrants only showed how depraved English authority had become, since in doing so Parliament had itself acted unlawfully.
Although the Massachusetts Superior Court rejected Otis’s arguments and issued the new writs, public opinion clearly backed him. Many newspapers reported his arguments verbatim, and the colonial legislature, aware of the vehemence of the populace against the writs, yielded a little in enacting a new bill to authorize the writs. The new law restricted the life of a writ to one week, rather than the life of the sovereign, and required specificity. It had to include the name of the informer, the subject of the search, the nature of the goods sought, and the location where authorities believed the contraband to be hidden. Otis’s speech also helped to inflame patriotic sentiment in the country, and while a majority of the colonists still had no desire to break from the mother country, it is apparent that they wanted the full protection of what they considered to be English liberty.
In the audience to hear Otis were two cousins, Samuel and John Adams, both of whom would play an important role in the Revolution. Many years later John Adams declared, ‘‘Otis was a flame of fire! Then and there 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.’’ Otis’s speech led to wide-scale resistance to searches, and often mobs would form to prevent officials from searching a house. Justices of the peace, who heretofore had freely given out general warrants now demanded that officers seeking a writ provide specific information. In 1765, the governor’s council of Massachusetts ruled that justices of the peace could not issue writs of assistance.
When Parliament passed the Townshend Acts in 1767, it authorized issuance of writs of assistance to help enforce collection of the duties in the colonies. An officer armed with such a writ could search all houses in the daytime and all vessels at any time. Only the courts in Massachusetts and New Hampshire, where Crown-appointed judges presided, issued such writs; that provision went unenforced in all of the other colonies, and even in those two only a halfdozen or so writs actually led to seizures. Mob violence in effect nullified the writs, since every seizure made under a writ of assistance was quickly liberated by local mobs. When a schooner was seized for smuggling, for example, a mob prevented the officers from unloading its illegal cargo. The captain in charge retreated, and went to a court to get a writ. By the time he returned, the townspeople had unloaded the vessel and its cargo had disappeared. By 1768, the attorney general of England concluded that colonial judges were refusing to issue writs because they believed them unconstitutional, and from that time until the Revolution writs of assistance practically disappeared from the colonies.
Otis’s 1761 speech would be reprinted widely for the next fifteen years, and inspired several of the states when they wrote their new constitutions in 1776 and after. Virginia, the first state to draft a constitution and bill of rights after the Declaration of Independence, included a strong prohibition against general warrants, although it did not go as far as some would have hoped. A month later, Pennsylvania adopted its new constitution, and as opposed to the negative wording of the Virginia bill, it put forth the right of the people to be secure in their homes in positive terms. John Adams, who had been at Otis’s speech, was one of the prime drafters of the Massachusetts Constitution of 1780, and its bill of rights included a prohibition against unreasonable search and seizure that, in particularity and in emphasizing the positive rights of the people, is the strongest of all the early state provisions. Other states also included some requirements for specific warrants, although all of them recognized that there were exceptions to the rule, such as when officers were in hot pursuit of a felon.
Not all states, however, abandoned the general warrant. Maryland, New York, North and South Carolina, and Georgia utilized general warrants during the Confederation period, primarily to enforce their import laws. Southern states, even those such as Virginia that forbade general warrants, nonetheless allowed their use in hunting runaway slaves.
The Philadelphia convention that drafted the Constitution did not include a Bill of Rights, because its members, including James Madison, did not believe one necessary. As Alexander Hamilton put it, the entire Constitution was a Bill of Rights. The lack of specific protections proved a central issue in the fight over ratification, and several states ratified on condition that a bill of rights be added to the Constitution at the first session of Congress. James Madison, who led the fight for ratification in Virginia and was one of the authors of The Federalist, agreed to this demand, and when the first Congress met in 1789, it was Madison who drafted the measures that became the Bill of Rights. What became the Fourth Amendment read:
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.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited