The Intruders: Unreasonable Searches and Seizures From King John to John Ashcroft.

• Author: Ferrall, Bard R.
• Position: Book Review

SAMUEL DASH, THE INTRUDERS: UNREASONABLE SEARCHES AND SEIZURES FROM KING JOHN TO JOHN ASHCROFT (Rutgers University Press: New Brunswick, NJ, 2004). 172 PP.

The author narrates the events and legal reasoning responsible for the establishment in American law of protection from the arbitrary exercise of governmental power to search persons and places and to seize an individual's possessions. After briefly detailing ancient concerns over privacy of the home found in Biblical and GrecoRoman eras, the author refutes the events leading up to King John's agreement to the Magna Carta. Although this document did not so much establish new rights as restore ones established in Saxon custom and no restrictions on the king's power to search were contained in the text, subsequent generations transformed it into the founding document of individual rights in English law. Lord Coke, as both scholar and jurist, was especially important in creating this legend and in establishing many legal rights of the individual. In his theoretical writings, Coke argued that arbitrary, unrestricted searches violated the Charter. As judge and member of the House of Commons, he wrote against many actions of the king as violations of legal rights. In Coke's juridical practice, however, he did not interfere with the use of general search warrants by holding any general search illegal. Later codification of rights, which emerged from the struggle between Parliament and King, did not include search and seizure provisions either. English courts first considered the legality of general search warrants, (i.e., ones not naming a particular person to be searched) in 1763 in a challenge against such a warrant issued by the Secretary of State after the insistence of George III that critical publications be seized. The opinion held the search and seizure illegal (although no remedy was provided) and contained strong language about the danger of general warrants. The opinion was acclaimed in England and widely noted in the American colonies. Little noted, however, was that the basis of the ruling was the Secretary's lack of power; the court acknowledged the king's power, under the Magna Carta, to issue general warrants.

When general warrants continued to be issued in the colonies, the American colonists mistakenly believed that they were denied their rights as English citizens. A prohibition of all general warrants became an important item in the demand for a bill of rights after the...