Evening star., 1949-08-26
Moroqon Attorneys Text

can only be obviated by adhering
to the rule that constitutional pro-
visions for the security of person
and property should be legally con-
strued. A close and literal construc-
ton deprives them of half their
efficacy and leads to gradual de-
probation of the right, as if it con-
sisted more in sound than in sub
stance. 1t is the duty of courts tc
be watchful for the constitutional
rights of the citizens, and against
any stealthy encroachments there
on. We have no doubt that ttl
legislative body is actuated by the
same motives: But the vast ac-
cumulation of public business
brought before it sometimes pre-
vents it, on a first presentation
from noticing objections which be-
come developed by time and the
practical application of the objec-
tionable law.
I'm order to ascertain the nature
OF the proceedings TENDED by the
fourth amendment to the Constitu-
ton under the terms unreasonable
searches and seizures, it is only nee
essary to recall the contemporary or
the recent history of the contro-
versies on the subject both in this
country and in England. The prac-
tice had obtained in the Colonies,
of 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
Of law, that ever was found In an
English law book.
Quotes John Adams Views.
then and there, said John
Adams, was the first scene of the
first act of opposition to the arbi-
trary claims of Great Britain. Then
and there the child independence
was born. 1t must be remembered
that prominent and principal among
the practices in England was the
practice of issuing general warrants
by the Secretary Of State, for search
ing private houses for the discovery
and seizure of books and papers that
might be used to convict their
owner"
In my opinion there is little dis
tinction in the practices heretofore
used against Maragon and the writs
Of assistance used in England and
the United States, which undoubt-
edly was a moving force Of the
Revolutionary War.
As you know, the purpose and
effect of the clause in the fifth
amendment against self-incrimina-
ton is to secure a witness from
the danger Of criminal prosecu-
ton against him, which may be
added by his forced disclosures. 1t
is impossible that the meaning OF
this clause can only be that per-
son shall not be compelled to be
q witness against himself in a
criminal prosecution against himself
It is not limited to such cases, but
the object was to insure that 9
person should not be compelled
when acting as a witness in any in
vestigation, to give testimony which
might tend to show that he himself
had committed a crime. The privi.
lege is limited to criminal matters
but it is as broad as the mischief
against which it seeks to guard.
Counselman VS.. Hitchcock, 1892
12s ct 1876, 142 United States, 562
IS L. ed. lilo.
Therefore, there seems to be NJ
question but that this witness may
and should refuse to answer ques.
tions the answers to which might
tend toaancriminats him, md he IN.
tends ID 50 refiSes'se@se @<at~assss ~