The Birmingham age-herald., 1921-06-18

| r'NSfdi constitution IS aS iolloWS.
 The right of the people to be se- cure in their persons, houses,
 papers and effects against unreason- able searches and seizures shall not be violated. and no warrant shall is-
 sue, but upon probably cause sup- ported by oath or affirmation and | particularly describing the place to | be searched and the persons or things to be seized"
 | We discover no substantial differ
 ence between these constitutional provisions, and therefore those cases | Which construe the Fourth Amend-
 ment to the Federal Constitution are in point as to the Alabama pro- vision.
 The leading authority upon this question of what is an unlawful search and seizure within the mean ing of such constitutional provision is Boyd V. United States, 1f6 U s. GIG. That case involved a proceed ing the result of which would be a forfeiture of defendants property for an alleged fraud against the revenue laws of the United States. In a con- sideration of that case it is to be noted at the outset that a compul- sorry production of a mans private papers is held to be the equivalent of search and seizure thereof with in the meaning of the Constitutions MT. Justice Bradley, the author Of the opinion in the Boyd case, reviews the history of the law against unlaw- full search and seizure, and from this opinion there have been frequent quo tations by that court. It's history In England, as pointed out therein arose from the practice of the is- suance of general warrants by the secretary of state for searching prf- vate houses for the discovery and seizure of books and papers that might be used to convict the owner of a charge of libel; out of which arose the notable case of Entick V. Darlington and Three Other Kings Messengers. reported in 19 Howells s State Trials, 1929. This was an ac- tion of trespass for entering the plaintiffs dwelling house and breaking open his desk and search ing and examining his papers. Lord Camden pronounced the Judgment of the court, and, as stated in the opin- ion, Tt is regarded as one of the per- manent monuments of the British constitution" In the Entick case the power exercised by the secretary of state for the issuance of general search warrants. and the manner of their execution, oppressive to the citizens, was pointed out with the concluding words by Lord Camden, as follows: Such Is the power. and, therefore, one would naturally ex- pect the law to warrant 1t should be clear in proportion as the power is exorbitant If it is law, it win be found in our books; if 1t Is not to be found there, it is not law The great end for which men entered into society was to secure their prop erty. That right Is preserved sa cred in all instances where 1t has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law are various. Dis tresses, executions, forfeitures, taxes, etc, are all of this description, wherein every man by common con sent gives up that right for the sake of justice and the general good" Continuing the opinion shows that the owners of goods and chattels are to be protected from an unlawful seizure, and the general warrants is- sued by the secretary of state were under such circumstances there out lined, declared Illegal and void. As pointed out in the Boyd case every American statesman during our Rev olution and formative period as a nation, was familiar with this monu- ment of English freedom, and that it was doubtless in the minds of those who framed the Fourth Amend ment to the Constitution, who consid- cred it sufficient explanation of what was meant by unreasonable search and seizure. Commenting fur ther upon Lord Camden's opinion, Justice Bradley said:
 "The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with it's adventitious circum- stances; they apply to all invasions on the part of the government and its employees of the sanctity of mans home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers. that constitutes the essence of the offense; but 1t is the invasion of his indefeasible right of personal secur- Fity. personal liberty and private property. where that right has never been forfeited by his conviction ot some public offense--it is the in- vasion of this sacred right which underlies and constitutes the essence of Lord Camden's Judgment. Break ing into house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of mans own testimony or of his private papers. to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that | t,,, ,l In, rac rh c and Fifth Amendments run almost into each other"
 Referring more particularly to the history of the Fourth Amendment to the Federal Constitution. the opins ion in the Boyd case directs attention to the fact that the practice had ob- tained in the colonies of issuing writs of assistance to revenue of ficers for the purpose of searching suspicious places for smuggled goods; and that this should be considered in connection with the Judgment ot the court in the Entick case for the ascertainment of the true history of the Fourth Amendment. Speaking to this question, the court said:
 .'In order to ascertain the nature of the proceedings intended by tho Fourth Amendment to the Constitu- tion under the terms Unreasonable searches and seizures, 1t is only necessary to recall the contemporary or then recent history of the contro- versies on the subject, both in this country and in England. The prac- tice had obtained in the colonies or Issuing writs of assistance to the revenue officers, empowering them in their discretion, to search sus- pected places for smuggled goods which James Otis pronounced the worst instrument of arbitrary power, the most destructive of English lib erty, and the fundamental principles