New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-02-13
UNCONSTITUTIONAL SEIZURES.

UhCONOIIIUI1ONHL OE!HOhEc'
The public irritation at the existing system
of Custom-house seizures, spies, moletes, anu
hired informers has become so general and so
violent that some modification of the law
must soon be made, and there seems to be no
reason to doubt that several OF its objection
able features will DO removed. Congress has
been urged to abolish the system of moietes
and lnformers, to cOdify and simplify the
laws, and to limit the discretion Of Custom
house officers in the seizure OF books anu
papers. This is all very well but an argu-
ment by Mr.. S. b. Eaton, recently printed by
the Chamber of Commerce, goes to the root OF
the abuse, by declaring the seizure of
books and papers to be an unconstltu-
tional exercise of authority. We have
read MIR. Eaton's pamphlet with care,
and it seems to us conclusive. The
Federal Constitution provides that q" the right
" of the people to be secure in their persons,
"houses, papers, and effects, against unreal
"sonable searches and seizures, shall not be
"vioated and no warrant 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" and that "nO person
"shal be deprived of life, liberty. or prop
" erty without due process of law" Referring
to this latter clause the Supreme Court has
ruled that Congress cannot make any pro-
cess due process of law by its mere will
but is restricted to processes which are
in conflict neither with the Constitution
nor with "thOse settled usages and modes
"of proceeding existing in the Common
" and Statute Law of England before the emf
" grafton of our ancestors" Now it is a
fundamental principle of the Common Law
that no man shall be compelled to criminate
himself. In accordance with this maxim the
courts have always held that no person shall
be obliged to discover what may subject him
to any penalty or forfeiture. The Statutes of
New-YOrk embody the principle in distinct
enactment. All the standard treatises on
evidence lay down the same rule, and are
careful to explain that it refers not merely
to criminal penalties, but to the for
fixture of property. The judiciary act
of 1889 empowers the Federal courts
I" in trials of actions at law. on motion and
due notice thereof being given, to require
"the parties to produce books OF writings in
"their possession or power which contain evil
"dence pertaining to the ISSUE" but this may
be done only Gin cases and under circumstances
where the parties might be compelled to
produce the same by the ordinary rules Of
proceedings in chancery." The law of Custom
house seizures complies with none of these
conditions. There is no trial of an action, but
only a summary proceeding ex parte, and it is
O recognized principle Of equity practice that
"a party is not bound to answer so as to sub
" ject himself to pains, penalties, or to any
" kind of punishment, or to any forfeiture"
In Ia revenue case reported in Gllpin, 319,
Judge Hopkinson decided as follows:
"The Courts Of the United States have the power
given them require parties to produce books and
writings in their possession or power, which contain
evidence pertinent to the issue in the case and under
circumstances where they might be compelled 10 pro-
duce the by the ordinary rules OF proceedings In
ohancery.' Is this such easel Would a Court OF
Chancery on bill OF discovery. compel a party to pro-
duoe evidence which would subject him TO forfeiture
I think not. No such order has been shown from
Court OF Equity, and the authorities held different
doctrine"
warrant therefore for the seizure of books
and papers in order to get evidence from them
against their owner is not due process OF
law in the sense Of the Constitution. In the
case of Robinson .. Richardson in Massa-
chusetts the Probate Judge of Middlesex had
refused an order to seize certain books and
papers Of an insolvent debtor, under q State
law of 1856, holding "tlat the proceedings
"t therein authorized were in violation of the
constitutional right of every citizen to be
secured from all unreasonable searches and
Seizures of his person, his houses, his papers,
"and all his possessions )" and the higher court,
having been asked for a mandamus, sustained
this decision and dismissed the petition. Mr..
Eaton adds that the Judge who rightly
"'refused' TO grant an order to search for
"books and papers, and whose firm stand in
"behalf of sound constitutional principles was
"upheld by the appellate tribunal, was the
"Hon. William A. Richardson, Secretary of
"the Treasury of the United States" Another
pertinent case occurred in this city in 1S4O
Recorder Morris threatened to search the
house of citizen for the purpose of obtain
ing o packet Of letters reis.,og to certain