FOURTH AMENDMENT, HISTORICAL ORIGINS OF

Appended to the United States Constitution as part of the bill of rights in 1789, the Fourth Amendment declares that "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." In identifying the "specific" warrant as its orthodox method of search, the amendment constitutionally repudiated its antithesis, the general warrant.

The general warrant did not confine its reach to a particular person, place, or object but allowed its bearer to arrest, search, and seize as his suspicions directed. In 1763, a typical warrant by the British secretaries of state commanded "diligent search" for the unidentified author, printer, and publisher of a satirical journal, The North Briton, No. 45, and the seizure of their papers. At least five houses were consequently searched, forty-nine (mostly innocent) persons arrested, and thousands of books and papers confiscated. Resentment against such invasions ultimately generated an antidote in the Fourth Amendment and is crucial to its understanding.

General warrants and general searches without warrant had a lengthy pedigree. In 1662, a statute codified writs of assistance that allowed searching all suspected places for goods concealed in violation of the customs laws. Such writs had been used since at least 1621 and themselves absorbed the language of royal commissions that had for centuries authorized general searches without warrant. Similarly promiscuous searches had existed for numerous applications: the pursuit of felons, suppression of political and religious deviance, regulation of printing, medieval craft guilds, naval and military impressment, counterfeiting, bankruptcy, excise and land taxes, vagrancy, game poaching, sumptuary behavior, and even the recovery of stolen personal items.

Colonial America copied Britain's machinery of search but varied its applications. Most jurisdictions instituted general searches to collect taxes, discourage762 poaching, capture felons, or find stolen merchandise. In the southernmost colonies, general searches without warrant blossomed into a comprehensive system of social regulation of the civilian population by quasi-military "slave patrols."

Although general warrants were the basic method of search, numerous restraints qualified their operation. Writs of assistance were invalid at night; certain areas of legislation touching the guilds and excises confined the general searches involved to the persons vocationally concerned. Yet such measures were not a comprehensive guarantee, systematically applied. Moreover, social philosophy outweighed civil libertarianism as a motive for the most conspicuous restraints, for while general "privy searches" plagued the poor, the elite enjoyed immunity from whole classes of similar searches. Covered by a thin veneer of restraints different from the specific warrant, the centrality of the general search remained starkly visible. Conversely, although specific warrants existed in legal manuals, they were rare before 1750, thereby indicating that they were not the intended constitutional successor to the general warrant.

English legal thinkers, however, expressed far greater hostility to the general warrant than did the law itself. As early as 1589 Robert Beale charged that the general search warrants used by the "High Commission" against Puritans violated magna carta (1215). In the next two centuries, such titans of English law as Sir edward coke, Sir Matthew Hale, and Sir william blackstone embellished similar themes with citations from the common law.

Such evidence, however, was more embroidery than substance. Magna Carta was a profoundly feudal document that said nothing on the intersection of searches, houses, and warrants. The master case usually cited against the general warrant, Semayne's Case (1602, 1604), actually drew a rigid line exempting the Crown from the protections elsewhere extended against invasion of the dwelling by private citizens. Unlike later scholars, the court had there emphasized that a man's house was not his castle against the government.

Like legal theorists, ordinary critics of the general search did not identify the specific warrant as its solution. Those whose houses were searched were more likely to execrate being searched than the generality of the authorizing warrant. Indignation that the victim of a general search was a member of the nobility deflected hostility from the search process and implied that it could properly be inflicted on the overwhelming majority who were not nobles. Ubiquitous laments that pregnant wives had miscarried during violent searches simply substituted appeals to the reader's sympathy for criticism of the absence of the concrete laws against such actions. Yet these very mythologies provided legitimacy and impulse for a right against unreasonable search and seizure. Although the Magna Carta of the thirteenth century said nothing against general searches, that of the eighteenth century had swollen into a formidable ideological weapon against them.

The movement against general warrants accelerated from 1761 to 1787. The North Briton controversy culminated in dozens of trials and in resolutions by the House of Commons against the use of those warrants. In Wilkes v. Wood (1763) and Huckle v. Money (1763–1765), charles pratt (Lord Camden) and william murray (Lord Mansfield), the chief justices of the Courts of Common Pleas and King's Bench, respectively, condemned the general warrants of search and arrest used by the secretaries of state as incompatible with statute, natural justice, the common law, and Magna Carta. A dozen derivative cases surrounding Entick v. Carrington ended in decisions against the seizure of personal papers. (See wilkes cases.)

Writs of assistance came under attack in the American colonial courts. james otis, a fiery young Massachusetts attorney, made a brilliant "higher law" assault on the writs in paxton ' scase (1761). Although Otis lost, most colonial courts refused to issue such writs when requuired to do so by the Townshend Act of 1767, and a series of pamphlets beginning with john dickinson'sFarmer's Letters joined in the assault. Eight states inserted some guarantee against general warrants in their constitutions of 1776–1784. Finally, four state conventions urged a corresponding restraint on searches by the new national government in ratifying the federal Constitution of 1787. james madison of Virginia duly responded by including what became the Fourth Amendment among the Bill of Rights which he proposed to Congress on June 8, 1789.

Neither Britain nor the separate American states, however, immediately abolished general searches. Rhetorical implications notwithstanding, the British abandoned only the isolated form of general warrants issued by state secretaries. Writs of assistance and other kinds of statutory general search warrants survived, for no comprehensive statute to the contrary ever emerged from the House of Commons. Despite their constitutions, the American states retained general search warrants not only as devices for [prosecuting the American Revolution] but also for a wide range of other purposes into the 1780s.

Although the right against unreasonable search and seizure has lengthy British roots, its cornerstone, the confinement of all searches, seizures, and arrests by warrant to the particular place, persons, and objects enumerated, derives from Massachusetts. A cluster of Massachusetts statutes and court decisions from 1756 to 1766, the third stage in a century-long process, uniformly restrained searches and arrests to the person or location designated in the warrant. Legislation in the 1780s extended this specificity to the objects of seizure. The Fourth Amendment is thus the marriage of an ancient British right and a new, colonial interpretation that vastly extended its meaning.

William J. Cuddihy
(1986)

Bibliography

Cuddihy, William and Hardy, B. Carmon 1980 A Man's House Was Not His Castle: Origins of the Fourth Amendment to the United States Constitution. William and Mary Quarterly 3: 371–400.

Lasson, Nelson 1937 The History … of the Fourth Amendment. Baltimore: Johns Hopkins University Press.