Fourth Amendment, Historical Origins of

• Author: William J. Cuddihy
• Pages: 1098-1099

Page 1098

Appended to the United States Constitution as part of the BILL OF RIGHTS in 1789, the Fourth Amendment declares that "The right of the people to be secure in their persons, houses, papers and effects against UNREASONABLE SEARCHES and seizures shall not be violated, and no warrants 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." In identifying the "specific" warrant as its orthodox method of search, the amendment constitutionally repudiated its antithesis, the GENERAL WARRANT.

The general warrant did not confine its reach to a particular person, place, or object but allowed its bearer to arrest, search, and seize as his suspicions directed. In 1763, a typical warrant by the British secretaries of state commanded "diligent search" for the unidentified author, printer, and publisher of a satirical journal, The North Briton, No. 45, and the seizure of their papers. At least five houses were consequently searched, forty-nine (mostly innocent) persons arrested, and thousands of books and papers confiscated. Resentment against such invasions ultimately generated an antidote in the Fourth Amendment and is crucial to its understanding.

General warrants and general searches without warrant had a lengthy pedigree. In 1662, a statute codified WRITS OF ASSISTANCE that allowed searching all suspected places for goods concealed in violation of the customs laws. Such writs had been used since at least 1621 and themselves absorbed the language of royal commissions that had for centuries authorized general searches without warrant. Similarly promiscuous searches had existed for numerous applications: the pursuit of felons, suppression of political and religious deviance, regulation of printing, medieval craft guilds, naval and military impressment, counterfeiting, bankruptcy, excise and land taxes, vagrancy, game poaching, sumptuary behavior, and even the recovery of stolen personal items.

Colonial America copied Britain's machinery of search but varied its applications. Most jurisdictions instituted general searches to collect taxes, discourage762 poaching, capture felons, or find stolen merchandise. In the southernmost colonies, general searches without warrant blossomed into a comprehensive system of social regulation of the civilian population by quasi-military "slave patrols."

Although general warrants were...