'Dearest property': digital evidence and the history of private 'papers' as special objects of search and seizure.

• Author: Dripps, Donald A.
• Position: III. The Seizure of Papers in America from the English Controversy Through the Founding Era B. Reception of the Common Law of Search and Seizure through V. Summing Up: History as Opportunity, with footnotes, p. 75-109

2. RECEPTION OF THE COMMON LAW OF SEARCH AND SEIZURE

   Although the reception of English law in the newly independent American states was not automatic or uniform, a basic pattern emerged. The Americans adopted the English common law together with statutes in force at the time of Independence, unless the English rule conflicted with a natural right or a state constitution's declaration of rights. (128) This meant that any judge or justice of the peace considering issuing a warrant to seize papers who looked up the law would learn that, under Entick, such a warrant was unknown to the common law.

   The Founding-era justice system relied heavily on justices of the peace (JPs), prominent citizens who agreed to serve as officials with authority, both judicial and executive, over a wide variety of local issues. In their judicial capacity, JPs had power to issue warrants to arrest and to search, as well as to interrogate arrested suspects and determine whether to commit or bail them. Professional lawyers wrote encyclopedic manuals to advise these amateurs. The JP manuals provide a fertile source of evidence about the Founding-era justice system. (129)

   Samuel Freeman's Massachusetts Justice, published in 1795, compiles forms for various writs a JP might be called upon to issue. The only form provided under the heading for "search warrant" is for a warrant for stolen goods. (130) Other manuals did not leave the prohibition on warrants for papers to implication. Eliphalet Ladd's abridgement of a leading English manual by Richard Burn, published for New Hampshire JPs in 1792, prefaces the regurgitation of Burn with this terse paragraph: "General search warrants are illegal. 2 Wils. 288. Lord Camden. Bill of rights of Newhampshire [sic], article XIX." (131) The citation to Entick runs directly into the New Hampshire Constitution's Bill of Rights, which provided, "Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." (132)

   William Walter Hening's New Virginia Justice, published in 1795, quoted the State Trials report of Entick: "On trespass, the jurors found a special verdict; and Lord Camden, in delivering the resolution of the court, observed, 'That a warrant to seize and carry away papers in the case of seditious libel was illegal and void.'" (133) Hening went on to discuss Wilkes v. Wood. (134)

   Of the Founding-era manuals I have seen, some, like Ladd and Hening, cite Entick and expressly prohibit warrants for papers. Others, like Freeman, mention only warrants to search for stolen goods or fugitive felons. None suggests common law authority to issue warrants for papers.

   We have other direct evidence that some Founding-era American lawyers were familiar with Entick v. Carrington. Joseph Hawley was a Massachusetts Whig and associate of John Adams. (135) Hawley's commonplace book includes a version of Otis's argument in the Writs of Assistance case in which Otis implores the court to "tear into rags this remnant of Starchamber tyranny." (136) Other accounts of the argument do not include this phrase, but identical language appears in Serjeant Glynn's argument in Entick. If Hawley inserted Glynn's argument by either accident or design, Hawley had to be familiar--intimately familiar--with Entick itself.

   Josiah Quincy Jr. was a leader in the Sons of Liberty and another associate of John Adams (they were on the same side in the Boston Massacre trial). Quincy's commonplace book includes a citation to Entick in a series of passages about statutory interpretation, with the notation "Gen.le War:T." (137) It seems highly unlikely that Hawley, Quincy, and Hening were alone. Hundreds of Americans attended the English Inns of Court. (138) "Nearly one-half of the signers of the Declaration of Independence and three-fifths of those who wrote the constitution had some formal legal training." (139) Leaving lawyers aside, printers and polemicists had a sharp incentive to know the law of seditious libel.

3. STATUTORY RESPECT FOR THE RULE OF ENTICK

   Common law could be modified by statute. Late in the nineteenth century, the Boyd Court would assert that an 1863 revenue measure:

   [W]as the first act in this country, and we might say, either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a man's private papers, or the compulsory production of them, for the purpose of using them in evidence. (140) With one possible nineteenth-century exception, I have not found any such pre-1863 statute.

   A statute authorizing seizures of papers was proposed in the Pennsylvania legislature in 1780. (141) Pennsylvania was then governed by a unicameral legislature and an executive council, established by a radical constitution that was the focal point of local politics. (142) Pennsylvania, with the rest of the United States, was at war with Britain; the treason of General Benedict Arnold, who had assumed celebrity status in Philadelphia in 1778, was exposed only in the autumn of 1780.

   All I can find of the proposed "bill for apprehending and punishing persons corresponding or trading with the enemies of the united states [sic]" is a debate on an amendment at the second reading of the bill in the House. (143) The operative language was that the Supreme Executive Council would have power to issue warrants "to seize his, her or their papers who may be suspected as aforesaid[.]" (144)

   The proposal was condemned by one writing under the name of Zuinglius in the Pennsylvania Gazette. (145) Zuinglius wrote that "the seizure of papers" "in the case of Wilkes in England, has been shewn to be contrary to common law." (146) The common law of England:

   [H]as been declared, by act of Assembly, to be the birth right of these citizens; and if that were not so, yet the possession of private papers, as of our secret thoughts, is a natural right which we do not give up when we enter into society, and which no law can justly take from us. (147) Further, he wrote, "An act of Assembly, like a statute of England, may restrain the common law, if it shall please the legislators; though that, I presume, will be seldom found adviseable [sic]. But an invasion of the natural rights of men is in all cases, tyrannical and arbitrary." (148)

   The only difference between Zuinglius in 1780 and Boyd in 1884 is resort to the constitutional provision as a trump on the statute. Pennsylvania's 1776 constitution included a declaration of rights, including a declaration that "the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure...." (149) The provision, however, was hortatory, continuing:

   [A]nd therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted. (150) Given that the applicable constitutional provision did not purport to bind the assembly, it might seem reasonable that Zuinglius relied on natural rather than constitutional law. Zuinglius added this final remark: "I shall conclude by observing, that this I believe is the only state, where a law of this kind has been thought necessary to be established. Even those states invaded by the enemy have not thought it necessary." (151)

   Whether the objections of Zuinglius or the cooling of wartime passions carried the issue cannot be determined. The proposed bill for seizing papers never passed into law. (152) What seems clear is that proponents of the power to seize papers felt the need for statutory authority, that opponents objected to this heretical idea, that the opponents prevailed, and that the failed proposal was an aberration from American practice even in wartime.

4. STATE SEARCH-AND-SEIZURE PROVISIONS BEFORE THE CONSTITUTION OF 1789

   After Independence the new states set up governments, typically enacting written constitutions accompanied by declarations or bills of rights. The earliest state provisions--Delaware, Maryland, North Carolina, Pennsylvania, and Virginia, all adopted in 1776--were rifle-shot prohibitions of general warrants. (153) All the later provisions--Vermont (1777), Massachusetts (1780), and New Hampshire (1783)--adopted "double-barreled" provisions declaring a general right against unreasonable searches and seizures coupled with a specific prohibition of general warrants. (154) In 1790, Pennsylvania adopted a new constitution with a double-barreled provision. (155) The Vermont, Massachusetts, New Hampshire, and (both) Pennsylvania constitutions refer specifically to "papers." (156)

5. ANTI-FEDERALIST CONCERNS AND AMENDMENTS PROPOSED DURING RATIFICATION OF THE 1789 CONSTITUTION

   The want of a Bill of Rights was the central objection to the proposed Constitution of 1789, and this objection included explicit references to search and seizure. (157) Apprehensions about the new government's search powers took formal and collective form in amendments proposed either by the majority to accompany ratification, or by delegates dissenting from ratification. Maryland proposed the simple ban on general warrants (so did the Pennsylvania dissenters), (158) while Virginia proposed declaring that "every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers and property; all [general] warrants therefore ... are dangerous and ought not to be granted." (159) North Carolina and New York (which had no state constitutional provision) adopted a similar formulation including a declaration of a general right to security in person, papers, and property. (160) The Massachusetts ratification message proposed amendments but not one about search and seizure. (161) The Massachusetts minority, dissenting from...