New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1877-04-28
POLICE POWERS AND THE CONSTITUTION

hOON01l1U1IUN
As an instance of the benefcent effects
to follow the execution of the new police
ordinance, it may be noted that the
Council, in adopting section twenty-three,
had no hesitation in violating the follow
ing amendment to the constitution of the
United States:
ARTICLE IV.-The right of the people to
De secure In their persons, houses, papers
and effects, against unreasonable searches
and seizures, shall not be violated, and no
warrants shall issue bat upon probable
cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things TO be
seized.
The city fathers in their wisdom have
provided the following restriction on the
operation of this fundamental law:
SEC. 80 To arrest and take to the near.
est precinct station, TOR cOmmittal, all per
sons violating the criminal laws or CITY or
dinancesi all persons disturbing the public
peace by liOtOus or disOrderly conduct; all
persons found under suspicious circum-
staDeee, and who shall not be able to give
satisfactory account of themselves, and
said policemen shall be empo Rered to
enter any house, inclOsure or other place
in which they hare reason to beliece that any
person is committing, OF ABOUT to commit,
breach of law or ordinances.
Judge Billings, of the United States
District Court in passing on the bill for
the warrants on the sewing machine cir
culars, estimated that at the rate they
were issued there could not have been
proper scrutiny. Referring to the con-
stitution, as above quoted, he says
In the first place you must punish crime:
IN the next place yOu must not Cypress the
people. These are the two grand points
that inhere in the jurisprudence of ali civil
lied nations, and many have been the
struggles on the part Of the British Com
mOners to prevent this sort of oppression.
Every argument that has ever been nsed in
the British House of Commons, and every
deDuneiation which hes there been thun.
deTed forth against the system Of general
arrests, applies 20 these or any other in
discriminate arrests
When the oOnsli ution of the Uaited
5 ates soiemly says there must be
affirmation before law shall lsy it's hand
upon citizen, it means that the
oath or affirmation shall present the case to
the full and candid investigation of the
magistrate, and the warrant must not
issue without 10. My view of it is that the
committing magistrate should swear the
athant, and weigh the facts dep0sed TO,
both with reference TO the circumstances Of
the acouser and the accused, and then
when upon the affidavit be is, after a ia.
dielal examination, satisfied that there is
probable cause, and not before, he may issue
his warrant.
Now, in this case it was not liberty or
sacredness of property that was involved,
but only whether the machinery of law
should be paid for. The warrants in
theory were issued against fraudulent
names and fictitious persons, and only by
error of the designers of the plan to pre-
vent registration crimes could any law
abiding citizen be affected. These war
rants had all the apparent sanctity of law,
were issued on oath and delivered to the
proper officers to serve, and none were
ever disputed or questioned in any of the
individual cases. Yet Judge Billings uses
this language because, in his opinion, the
fright Of the people to be securss was not
sufficiently protected by careful pre-
liminagy examination Of the magistrate.
Tbs consideration Of the city fathers is
directed to the admirable comments Of
Judge Billings, and they may speculate
ON what he would say Of arrests made
ana houses entered on the mere treason
to believe" of an Ofaeial whose mental
and physical Vnlae is.estinated by them
at seven hundred and twenty dollars per
apnum.