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THE GREEN BAG
in an English law book," since they placed tional existence, for a comprehensive scheme "the liberty of every man in the hands of of government or the welfare of the people every petty official." "Then and there," or of the state as a whole. They were pecu said John Adams, " then and there was the liarly anxious that the personal liberty first scene of the first act of opposition which they believed to have been theirs to the arbitrary claims of Great Britain; as Englishmen should be preserved to them then and there the child Independence was as American citizens, and it was for this born."1 The American colonists did not purpose that the fourth amendment to the bother themselves with the consideration federal constitution was insisted upon and that they were technically speaking to a adopted. The amendment, however, did large extent a people of law-breakers, and not prohibit all searches and seizures, that although the searches and seizures merely those which were unreasonable. complained against were no doubt arbi This was true of the English law as then trary and without due process of law, the formulated and was in accordance with the result was usually to bring to light viola traditions of the past.1 The colonists hardly tions of the law and to secure contraband denied the right to search and seize but goods which had been smuggled in contra rather the right to arbitrarily and unreason vention thereof. They had come into an ably search and seize, and they demanded individualistic atmosphere, the atmosphere a voice in the making of the laws for the which always prevails upon the frontier violation of which or for the enforcement of and far from the centres of government; the which the entries and seizures were made. atmosphere which is always to be found They insisted upon some kind of due process among a people who have left the comforts of law, some inquiry, some! proof of a and refinements of the older communities corpus delicti, as it were. The clause of and who have faced deprivations and hard the Magna Charta, indeed, to which they ships in order that they may acquire; which constantly made reference, did not forbid is generally to be found among those who, all entries upon private premises, but merely starting without rank or position, see before entries by an armed force and not by the them by the means of acquisition the oppor law of the land. Nee super eum ibimus nisi tunity for wealth and preferment. So too fer legem terrae, the words ran. The law the laws were arbitrary and passed without of the land, due process of law, had long the sanction of the governed. And the been considered to involve a day in court, colonists therefore questioned not merely a right to be heard, and the service of the the right to search and seize but the validity process or the seizure by a proper judicial of the very laws under which the searches officer.2 Although, therefore, the exigen and seizures were instituted. They were cies which made searches and seizures nec determined to vindicate their personal essary at all forbade the giving to the person rights to property and to the acquisition affected the right to a personal hearing in thereof, and to prevent inquisitorial exer the first place in every instance, a prelimi cises of power of every kind. Their motives nary investigation or hearing of some kind, were personal. They were largely selfish. They emanated from a desire for personal 1 See opinion in the case of John Wilkes, 19 liberty rather than from a desire for a na- Howell's State Trials, 981, and Entick v. Carring1 Works of John Adams, vol. 2, Appendix A, PP- 533-5z5; vol. 10, pp. 183, 233, 244, 256; Quincy's Reports, pp. 469-482; Paxton's Case, id. 51-57; Boyd v. U. S. 116, U. S. 616.
ton, 19 id. 1029. 1 Reeves' History of English Law, vol. n, chap. 5; Dartmouth College v. Woodward, 4 Wheat. 519; Mr. Justice Johnson in Bank of Columbia v. Okley, 4 Wheat. 235.
