Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-11-12


SCI lflere be positive proof that any property stolen
the warrant may authorize the search such house
place in the night time.
charged with any offence, TO prison, by whom any
grant or dsorderly shall be committed may
such to be searched for the purpose of
property he have and any property be found
the same may he taken and applied to the support OF such
person while in confinement.
These sections OF our statutes have been relied
upon 10 show that acted not only without law bot
against the express letter and spirit Of the law.
THESE sections, with the exception sll from the
question whether had right to search for ,crittss
testimony against Glentwsrth Before referring
again to the llth section Of the Bill ofRghts which
In my Judgment, sanctions the course pursued,
will show what those sections do mean, and 10 what
interests and rights they are applica able.
The sections %, rs and n, which have read 10
you are for the same object. They give TO q court
or Judge, exercising criminal jurisdiction the
power to issue warrant for civil, individual re-
dress Upon the warrant mentioned in those sec
uohs, an individuals property is reclaimed and de-
HVered 10 MN such warrant is TO answer the
object that Is accomplished by writ of repevin in
civL courts. These sections do not contem plate,
nor 40 tney auihorise search warrant, to search
property or paper: for evidence Of guilt. A search
warrant cannot be issued to search for the property
OF the accused, TO be used as evidence.
he D;h section is only fer the purpose Of autho-
rising the magistrates to take from the person ae-
cused property belonging TO the accused, and 10
apply such property to pay his maintenance while
he is imprisoned. If these sections were the orly
law authorisng magistrates and officers TO search
me premises OF accused persons, and take there
from property, then there would be no law to au-
thorise the persons and the premises Of accused
persons, and his papers TO be searched; and there
would be no right TO take from the premises of
cused individuals, either counterfeit bills, or wea-
pons with which murder had been com Iitted.
1t is, therefore, perfectly apparent il these sec
tions Of the statute are applicable at all to the ques
tion, growing out Of my taking Glentworths papers,
q lish eli in
there legal right, by warrant otherwise, to search
the person, house. or papers of an accused persono
find evidence tending TO prove his guilt
The llth section Of the Bill Of Rights, which
have read, states, "The right of the people to be
cure in their persons, hoasespapers effects,
unreasonable searches and seizures ought not to be
the right Of the people to be secure in their persons
houses, papers and effects against easonatIe searca
and seizure. Section XIII, Of the Constitution CT
this State. LIST T. s. I'd Ed page 10, declares
Such parts Of the Common Law and Of the acts Of the
Legislature of the Colony Of New York. together did
form the law Of sal Colony, the 10Th OF April
Of the State OF New York force the goth day of April
l!l7 which have not since expired, been repealed
now in force shall be and continue the law of tbs
state subject to such alterations the Legislature shall
make concerning the same Bat all such parts of the
Common Law and such Of the said acts parts the
ted"
Common law, gentlemen Of the jury, is that law
II is In the reports Of cases decided by the various
Courts, running back for centures-there is mach
OF that never has been printed, because ge
nerally known by the profession of the law-that it
never Ia. been seriously questioned by the most ig-
norant OF that profession. Not having been qaes-
toned there has been decisions upon il BY those
higher Courts, whose decisions only are published
Law, applicable to criminal proceedngss the right
to do every thiag, necessary to protect the
nifty at large against the dspredations Of feons with
the least possible injury to the rsht',prvlsses and
The bill Of rights, which have before alluded TO-
therefore means, rights Of tbs people not
secured in their persons, houses papers and effects
against the reasonable searches ana seizures suho
rised by the common law. ID Starkers Reports
Eng Com. Law reports 3d-2S4. "In cases Of tiea-
son and felony, may be proved that articles were
found secreted in the prisoners house after his APP
prehension."
In this case there objection made 10 the
testimony, because the sanctity Of private dwell
ling had been violated. In this case there could not
have been search warrant, because the property in
the articles found we're the prisoner. There was
no warrant issued to search for testimony, because
there is no such warrant known in the law. The
search was made by the officers Of justice.
i. Leach 23J-Hevey, Beatty and Nc arty's case.
Indictment for conspiracy to pass of q forged ac-
eeptsnce Certain letters addressed to the prisoners
were intercepted at the post office after their arrest
which were offered in evidence, but ruled out, on
the ground that they had been in the custody
OF the prisoners, or any manner adopted by them.
the prisoner had been seized and the seal violated
These letters could not have been taken by virtse
ola warraut-they taken by the officers Of JUS
tice.
See TV-atson's Case, 2 Stark. r. no.
Rex rs. Piumer, Russ & Ry. 264.
IL an innocent man is arrested upon uspieion, Nv
private individual, such individual is excused If
felony ras IN fac. committed, and there reasona-
bic gIouod to suspect the person arrested -Hoiley
rs. Mir, Sd JT'ena. $50.
Lord Ellenboroush in giving his opinion ON this
point, cited case from recollection vi here q bale
to banker at Walton had been taken up on su.pi-
cion Of having committed a great robbery. The
prisoner had been the privy and this cir
cumstapee having excited suspicion in the minds Of
the Counsel who considered the dnring the As
sizes York at their instance search was made and
the privy all the plate found; the plate was
produced aud the prisoner was in consequence con-
rcted. lie had been separated from the custody Of
the plate since he had been mined in York Castle
for some lime, bat doubt entertained as 20 the
admiss ibiIity of the evidence.
Albeit, c. J. also observes that an Assize bad
scarcely ever occurred where IL did not happen that
part OF the evidence against prisoner, ccssisted Of
proof hat the stolen property was found in his hcase
after his apprehension.
2s5
Where felony has been committed. or a danger.
Gus wound given, the psrty's house 10 sanctuary
70. him and the doors may be forced after the mott
Geatiou, demand, and refusal which have been men
toned, viz OF business, and so en'er-Fosier, $40;
Hale. ass.
Also see HAWK, ~c, {. IL, sec. 2, where II is
said that doors may be broken open here one known
20 have committed a treason or felony, or TO have
given another dangerous wound, 10 pursued either
with or without warrant, by Constable or private
person.
So also as to process Of contempt.
TIE right Of private person to arrest be tcsn
in Russ, 500.
Stark, Rep. l37; Eng. m Law, Rep ID, 81
" In cases OF treason and felony IL may be proved
that articles found sccre,ed in the prisoners
house after his apprehension"
In the case Of Robinson, tried for the murder e
Ellen Jewit, assisted the then District ATTORNEY
After Robinscns arrest, the officers, without war
rant went TO his boarding house and brought 10 the
police Office his desk, containing his letters manE-
script diary, and his miniature-and these were
taken from among his other private mis- cellaneous
papers. Objection was raised that the prisoners
private papers had been seized upon by the officers
uf lustcc-that his private rights, as citizen had