Eastern times. [volume] (Bath, Me.) 1846-1857, 1850-05-23


reasonable search and seizure,
Ii Is true, that in several instances, our laws
have authorized search, on complaint of ma G.
lstrate, without serious Inconvenience or abuse.
The most important instance Of the exercise of
this right, is where goods are stolen, or OBJ
tanned by false rretences; and here there must
be apre-exisiing fact, not merely suspected, but
known 10 the complainant, 10 wit the loss of
the goods; and when such fact exists, the per-
son suffering the loss, in insiituting search, will
give 10 1t, only that direction, which the circunl-
stances may indicate, as most likely 10 result in
the recovery OF his property. Here we have a
fact, and consequent upon 1t, motive which
excludes the idea of action, upon mere vague
suspicion, prejudice or passion-l double safe
guard against abuse, which has no counterpart
in the case in question. So too with all our
other laws authorizing search; they are 50
guarded, or so limited in their application, that
there can be no danger of general abuse. For
instance, the number is small 10 whom the suS-
picion could possibly attach. of violating the
law, which regulates the keeping of gunpowdcr,
and authorizes search TO discover It's illegal pos
session; and when such suspicion does exist, 4
warrant for search can only be granted, to one
of the officers of the town, on his own appllca-
ton, made in his official capacity, authorizing
him to make the search.
Another important distinction between this
and all other laws of this character, is that the
latter only authorize search for property illegal
~ in the possession OF the person whose prem
iscs art TO be searched, while the former author
Uses search for property, which every person
may legally possess and use, and which our
whole population, with but rare exceptions DO
posses and use. The mere suspicion of this
common legal possession, may induce susPi-
cion of Illegal use and thus the suspicion of IL
legal use, resting upon the other suspicion of
legal possession, may be the foundation of a
belief in relation 10 any of our citizens,
which would expose his person to arrest. and
open his premises, 10 the gaze and inspection, of
any three meddling or malicious intruders.
1t therefore cannot be regarded as Just, 10 cite
our present laws. as precedent for one, so I'M
guarded in its details, so universal in It's appl-
cation, and consequently, so liable in lis eNccu-
ton, 10 universal abuse. Under those, Jour
present laws of search, individual rights, may,
al times, be violated, though protected by all
the guards, which the nature of the case furnish,
er permit; but under this, our whole popula-
ton are exposed, without check, limit, or re-
straint. All laws may necessarily invade and
endanger 10 a certain extent, individual rights !;
Uui IL UNSS UOi lOliUN. lildt al
should, by law, be wantonly invaded and endan-
gered.
The constitution does not interpose an unqual-
lifted prohibition of the exercise of the right OF
search; its guarantee 10 the citizen is against
Unreasonable search" lfthen, the search for
which the bill provides is designed to accom-
plish great social good, and, at the same time,
is adequate to the design, it is reasonable and
therefore constitutional, aside from the defects
in detail to:which | have alluded. 1t is there
fore pertinent TO inquire how far the aniicipa-
tons of the friends OF the bill are likely TO be
realized, In the accomplishment of the object
designed-the suppression OF lntemperance.
Ii is commended, that the present law is
imperative, because the evidence necessary
10 convict those who violate it cannot be OBJ
tanned; and The friends of this bill claim that
| its provisions will enable them 10 supply the
deficiency this is the admitted Chief object
of its passage, and this object 1t must secure,
or he entirely nusaiory. For the purpose
then, OF testing its effect, we will suppose,
that he law is IN opeIatlon-that search war
rants are issued TO obtain evidence against
those engaged in illegal sale-and that, con-
lrary TO the expectations of many, search is
permitted without resistance or hlndrauce
BY well directed search, ardent spirits NAV
undoubtedly &c found, under circumstances
calculated TO excite the suspicion, that il is
kept for illegal sale but not with accompani-
ments that would furnish euidenoe of such in.
tenrion. For il is not probable that any
places Of sale. except those in few large
towns, are fitted up, with any thing more
Than the necessary apparatus; and the neces-
sary apparatus, is only such ARTICLES as are
in daily, constant use. in every house, store,
and workshop. Wherever the arrangements
were on a more extended sca.e, the approval
OF the bill would have been a signal for the
removal OF all APPENDICES. calculated TO eX-
cite suspicion OF the traffic. And here we
have the extent of the evidence, in aid OF con-
vlctIon, which all this process can possibly
iurnlsl-the discovery of liquors, which every
person has right TO keep, aud sell in packs
ages as imported, and of a few articles OF do
meslic use, such as every person does keep
Ii tins evidence will convict one, II will con-
Wet nearly the whole of our population. Ii
should be borne in mind, that, whenever
search is instituted under any of our present
laws, il must be for property, which If found
in the possession OF the person whose prem
Uses are searched, is illegally in his posses,
sion, and the finding therefore, furnishes al
most conclusive evidence of guilt. But no
discovery of the mere legal possession of an
article, which is in common use, even though
that article is OF such a nature, that il may be
used fol- the most injurious and dangerous
purposes.
From these considerations, il seems obvi-
Gus, that while search, under all our pre- sent
laws may furnish almost conclusive evidence
OF crime, the search authorized by the bill 10
question: must entirely fail IN produre Suc h
evidence, and failing of this. il fails to &C
complish lis only Object. Hence the one, is
reasonable and constitutional, while the other
is unreasonable and consequently uncon-
stliutional.
i have thus far shown. that the right OF
search is OF so delicate nature, that il should
he always USE with the utmost caulion-that
this bill in authorizing its exercise, negects
those safeguards in detail, which both the
constitution, and safety of the persons and
property of our cltzens require-tbai its pc
culiar features are msustained, by any pre-
cedcnt drawn from our former laws-and
thai the search itself, inadequate as it is 10
accomplish the good designed, is 'unreason>
able and therefore unconstitutional.
We will now inquire what judicial pro-
ceedings The bill requires, in relation TO the
persons and property which may he seized on
warrant for search. and brought before the
court 10 which the warrant is reiurnable !;
and here we are left TO srope in obscurity
and uncertainty. Ii should be observed, thai
The only court TO which such warrant is re-
lurnab!e, is justice ofthe peace.
As have before shown, person against
whom there has been no charge-no com.
plant or warrant, may, at The discretion Of