1300KS AND PAPEIRS
UN DE1E  I -TE
1RE VENITE TLAW S.
PUBLISHED BY THE NEW YORK CHAMBER OF COMMERCE.








A DISCUSSION
OF THE
CONSTITUTIONALITY OF THE ACT OF CONGRESS'
OF MARCH  2, 1867,
AUTHORIZING THE SEIZURE OF BOOKS AND PAPERS
FOR
ALLEGED FRAUDS UPON THE REVENUE,
TOGETHER WITH
A BRIEF STATEMENT OF CERTAIN OBJECTIONS TO,
THE PRACTICAL WORKIN(- OF THE LAW.
BY
S. 13. EATON,
OF THE NEW YORK BAR.
NEw YORK:
PRESS OF THE CHAMBER OF COMMERCE..
1874.




THIS pamphlet is published at the request of the Special
Committee upon Revenue Reform of the New York Chainber of Commerce.
The writer desires to express his acknowledgments for
suggestions derived from the printed report of the argument of Mr. Sidney Webster, ill 1867, upon the old law;
and from the pamphlet of Mr. Cephas Brainerd, in 1870,
upon proposed amendments to the present law.
S. IB  E.
~Fel1rn m1y 2, 18 74.
34-6 BROADWAY.




AN informer intimates to a Revenue official that an importer has defrauded the Government in the matter of duties on imports; the official, upon complaint and affidavit,
obtains froln the Judge of the District Court of the United
States a secret warrant to seize the books and papers of the
importer; the books and papers are seized, and are carried
away to be examined, for the ostensible purpose of investigating thle alleged fraud. Such, briefly stated, is the process usually denominated Seizing books and papers by
t/le Cuestorm House, the full purport of which will be laid
open in these pages, together with certain first principles of
law which, it is believed, that process violates.
The first statute ever passed by Congress authorizing
these seizures was that of March 3, 1863.*  Subsequently
that law was amended by the Act of March 2d, 1867, which
is still in force,t the section authorizing seizures being appended:
" Whenever it shall be made to appear to the satisfaction
of the Judge of the District Court for any district of the
United States, by complaint or affidavit, that any fraud on
the revenue has been committed by any person or persons interested or in any way engaged in the importation
or entry of merchandise at any port within such district,
said Judge shall forthwith issue his warrant, directed to the
Marshal of the district, requiring said Marshal, by himself
or Deputy, to enter any place or premises where any in
* 12 Stat. at Large, 737.
t 14 Stat. at Large, 546.




4
voices, books, or papers are deposited relating to the melrchandise in respect to which such fraud is alleged to have
been comnmitted, and to take possession of such books or
papers, and produce them before the said Judge; and alny
invoices, books, or papers so seized shall be subject to the
order of said Judge, who shall allow the examination of thle
same by the Collector of Customs of the port into which the
alleged fraudulent importation shall be made, or by ally
officer duly authorized by said Collector.  And such invoices, books, or papers may be retailled by said Judge as
long as in his opinion the retention thereof may be necessary; but no warrant for such seizure shall be issued unless
the complainant shall, set tbrtll the character of the fraud
alleged, the nature of the saine, and the importations in respect to which it was cotmmitted, and the papers to be
seized.  And the warrant issued on such complaint, witlh
report of service and proceedings thereon, shall be returned,
as other warrants, to the Court of the District witlin wlhilit
such Judge presides."
Precisely whlat this law is designed to accomplish canl be
best seen by contrasting it with thle law authorizinlg the seizure
of goods and merchandise.  Under section 68 of thle Act
of' Congress passed March 2d, 1799*, every Collector, Naval'Officer, and Surveyor, having cause to suspect a concealmnent in a particular building of any goods subject to duty,
is, upon proper application on oath to any Justice of thle
Peace, entitled to a warrant to enter such building, and
there to search for such goods, and " to seize and secure the
same for trial."  These provisions, found in our earliest
statutes, and incident to all laws imposing and collecting
duties, are as old as Revenue law itself.  They are imleant
to check fraud by authorizing the seizure and condemnation of the inculfpated goods, and are enforced upon thle
1 Stat. at Large, 678.




theory that the,specific goods and mnerchandise, upon which
the proper duties are not paid, are subject to seizure and.confiscation.
The seizure of books cnd papers is a proceeding of an entirely different nature.  The only value of the books seized
consists in the information they contain, and the only object
of the Government in seizing themn is to use themn as evidence against their owner.  After their contents have been
exhausted, and after whatever secrets they may contain
have been turned against the party from  whom they are
taken, they are restored.  In the one class of seizures,
specific goods and mercllandise, inculpated by the fact that
the proper duties were evaded, are taken and sold for the
benefit of the government.  In the other class of seizures,
books and papers cointainincg the records of business transactions, are taken and examnined to discover what evidence of
fraud upon the Revenue law they will reveal. In. one case,
the official is authorized to search, seize, and carry away
merchandise which is giable to be confiscated, to be held for
trial; in the other case he is authorized to seize private
papers, not liable to coifiyscation, and hold theln as evi(lence.
The terrible consequences entailed by the seizures authorized by this law can hardly be overstated. When the counting room is invaded, and its entire contents removed, the
heart of a business is struck. Entanglement easily follows
in every branch, and traffic is practically suspended.  In
suits between private parties, the public takes little interest,
l)nt whenl the government begins proceedings against a manl,
it raises in the popular mind a strong presumption of llis,niiilt. "There is," as a recent writer has very pointedly
put it, "a traditional prejudice that such proceedings, being
undertaken on public grounds, and in the public interest, can
not be dictated by private malignity or passion, and must
have an array of facts behind them;" so that when the




" Cstom House," or the " Special Agent" seizes on the
books and papers of an importer, on account of alleged
fraud, and the telegraph spreads the news over the country,
the fair fame of a lifetime often vanishes in a momenllt.' Character is damaged to an extent which no subsequent
refutation or vindication can wholly cure, because such are
the intricacy and obscurity of our Revenue laws that, even
if the facts are clear of all suspicion, the defence must, froml
the nature of the case, be dry and tedious reading, while
the charge can be contained in two lines of a spicy dispatch."*  Laws authorizing such oppressive proceedings,
and entailing such consequences, should have the undoubted
sanctions of necessity, experience, and obvious constitutionality.
The language of the statute is, that when it shall appear
that " any fracud on the Revenue has been committed," the
books and papers of the party committing the same shall be
seized. Fraud, then, is the essence of these proceedings.
Ordinarily, there can be no honest doubt in any man's mind
as to whether or not he is guilty of fraud. Deception by
which an unfair advantage is deliberately gained, or artifice by wllich another is intentionally injured, are universally known to constitute fraudulent practices; and, where
the law punishes fraud, any one, ordinarily, can so govern
his conduct as to either incur the penalty, or escape it.
This is not true, however, with reference to "fraud"
as the word is used in the statute now  under consideration. Certainty as to whether " any fi-aud upon
the Revenue is being committed," so far at least as
to place it beyond doubt whether books and papers are
liable to be seized, depends upon a complete and correct
knowledge of Revenue law. Not only is this so, but it is.
indispensable that, in addition to a correct reading of the
* The Nation, vol. 1ia, p. 312.




7
law, the interpretation placed upon it should coincide with
that held by the official in whose hands rests the seizing
power. The reason for this is found in the very nature of
the case. At the inception of seizure proceedings, the,motives of the importer who is charged with fraud, are
seldom  in question.  Nothing is positively known about
them, and it is against the pecuniary interest of the seizing
officer to give the importer the benefit of a doubt.  The
question is one simply offfact. The point is this: does
the seizing officer, upon such information as comes to him,
and as he construes the Revenue Laws, believe that the
importer has violated themn? If he so believes, lie will,
ordinarily, take the proper steps to have the seizure made.
It becomes, therefore, necessary to know  whether the Revenue laws are free from. ambiguities, and are readily understood by those who must use them, since such authorities as both Marshall and Story hold that "a doubt as to
the true construction of the law is as reasonable a cause
for seizure as a doubt respecting the fact. "*
The opinion of the Secretary of the Treasury is pertinent upon this point. In his report atthe opening of the
present Congress, he said, referring to the complexity  of
the Revenue laws:
" There is often a direct conflict between different statutes, and, occasionally, between two or more provisions of
the same statute, while single provi0sions are frequently held
to embrace different meanings.  These differences can be
settled only by arbitrary interpretations, or by adjudications in courts."  The number of appeals to the Secretary
for " arbitrary interpretations," the last year, on account
of these " different meanings," was nearly five thousand.
Said Secretary McCullough, in his report to Congress, in
1867:
* U. S. v. Riddle, 5 Cranch, 311. The schooner Friendship, 1 Gallison, 112.




"The laws relating to the foreign and coasting trade,
and the collection of the Revenue from customs, are now
dispersed through many volumes of statutes, and have beenl
so frequently modified by amendments of their original
provisions, that one many points it is dijcultfor merchants,
as well as for the officers whose duty it is to construe and
execute them, to determine what is the law in force.  It is
of great importance that laws regulating interests so various and vast, should be so systematized that the rights and
duties of the classes whose interests are most directly affected by them may be clearly apparent.  Their present
compliance is a source of serious embarrassment to the
mercantile community, and it is not less embarrassing to the
officers of Customs. The Department has endeavored to obviate these embarrassments as far as practicable by regulations and instruction, but these measures are only a partial
remedy, and fall far short of supplying the want of a uniform and consistent code."
Said one of the Associate Justices of the United States
Supreme Court, "It is a great grievance that the Revenue
laws passed by Congress have become so numerous alld
complicated that it is often difficult to ascertain what is the
existing law on any particular subject.  In the construction
of other laws, when one statute supplies or changes the
p)rovisions of another, the latest is construed as a repeal of
the former.  But in the construction of this mass of contradictory Revenue laws, it would seem  that the statute
which giNves the highest duty, the larccest fes, oil the severest
)eanalties, is never repealed by a later act which mitigates
the penalty or diminishes the fees.  Acts giving certain
fees, or forfeitures to certain officers become almost like
the laws of the Mledes and Persians, incapable of being
repealed."
It thus appears that the Revenue laws are not free froml
ambiguities, and can not be clearly understood. The Trea



9
sury Departlnent itself can not always read the law aright,
and it often happens that official interpretations, issued in
the morning, are recalled before night, while regulations sent
by mail are annulled by telegraph. Instead of one concise
code, we have statute piled upon statute, beginning in the
last century and lasting until now, in consequence of which
the law has become so complicated that it is within bounds
to say nobody has a perfectly clear comprehension of all
its requirements, provisions, and interpretations.  The law
requires* invoices, oaths, certificates, and declarations, not
*once only, but sometimes in duplicate, and sometimes in triplicate, of consignors, consuls, owners, agents, purchasers, and
consignees, regarding thle most Iinute particulars of cost,
mlarket value, freights, inland and innumerable other cllarges,
in respect to any of which particulars a single error, no matter how unimportant, renders an ilnporter's books and papers
liable to seizure.  It does not seem unreasonable, tl!erefore,
to(- claiml with reference to thle use of the words " any
fraud" in the statute authorizing seizures, that, so far as
seizing books and papers is concerned, any act of omission
or commission, which involves a breach of the Revenne
law, is "feCaud," no matter whether the act occurs through
accident, negligence, ignorance, or innocent mistake, or
even through a mnere technicality.
The question whether the importer intentionally violates
tlhe Revenue law, and whether lie knowingly evades paying duty, can not be absolutely determined until after the
books are seized, and the allegation with reference to which
thley are taken is examined. The law, however, from the
outset, creates a bias in the minds of the officers having
clharge of the seizure and the examination, against the inlporter, countenancing, in the recent words of one of our
Judges, "sinister inquisitiveness and mischievous espion* Act of Congress, March 3, 1863.




0O
age."  If the alleged fraud is substantiated, or if the merchant's alleged offense is condoned by his paying a penalty,
a part of the penalty paid goes to those who have instigated, and to those who have engineered the seizure. That.
amount, moreover, is not the value of tile single'ten in reference to which tile fraud is alleged, but is the value of
the entire face of the invoice in which the item is included.
Of this sumn, one-half goes to the Government, one quarterto the informer, one-quarter is equally divided between
the Collector, the Surveyor, and the Naval Officer of the
port, while, out of the gross sum, percentages fall to the prosecuting officer of the government and to the Clerk of the
Court. IItnan nature can hardly be trusted, under these
circumstances, to give to an importer the benefit of a
doubt as to his intention-everv  official with whoml  he
comes in contact, except the Judge, and the Secretary of
tile Treasury, having a direct pecuniary interest against
him.  "Let the law be amended," to use the forcible language of Mr. Schultz, in his recent address upon this subject before the Chamber of Commerce "' so that these two
functionaries can receive a portion of the moieties, and then,.
so far as human motive can be controlled by sordid influences, a perfect system of confiscation exists."
Let us consider for a moment the oppressive features of
this law. Technical and unintentional errors, and sometimes
even the bare suspicion of them, subject houses and stores
to search, and books and papers, with every vestige of
correspondence, whether it may be of a business or private
nature, to  seizure and removal. Not only merchants,
but any one who has been interested in any importation of
any kind, are in danger.  If the seized records fail to estab —
lislh the existence of the alleged fraud, they can be ransacked for proof of other frauds, and whatever is found.
mlust be condoned by the payment of a penalty utterly disproportionate to the loss of customs duty.  If this legal ex —




11
tortion is resisted, the amount is sued for in the courts;
and, in a trial, where for one dollar lost to the Revenue, one
thousand dollars, to state what is within bounds, is sued
for, the contents of the books and papers of the accused
are used in evidence against him.  Think of invading a
man's house, under cover of law, for such a purpose!
Think of the terror such laws inspire! In the same breath
men stigmatize them, yet confess they dare not speak openly. Thus Commerce is at the mercy of the Revenue officials, and an importer is as likely to publish his grievances,
as an unbeliever, in the twelfth century, after having made
an enforced perambulation through the halls of the Spanish
Inquisition, would have been likely to accurse the religion
of the State.
Having thus briefly seen the real scope of the law authorizing the seizure of books and papers, together with the
oppressive and inquisitorial proceedings instituted under it,
let us now approach the real body of our subject. The first
branch of this discussion resolves itself into this:
Has Congress the constitutional right to compel a party,
accused of having incurred a Revenue penalty or forfeiture,
or of having rendered himself liable to indictment theretbr, to produce, or to give up papers in his possession, made
by himself or others, which are alleged to contain proof of
his offense, and which are to be used in evidence against
him?
The whole power of Congress in this matter is found in
the following clauses of the Constitution:
" The Congress shall have power:
" To lay and collect taxes, duties, imposts, and excises;"
~and
" To make all laws which shall be necessary and proper
for carrying into execution the foregoing powers."
* Constitution, Art. 1, Sec. 8.




12
Itf there is any limitation imposed upon Congress in its
exercise of these powers, speaking with reference only to
the Seizure Laws, it is found in the following Amendments
to the Constitution:
" The right of the people to be secure in their persons,
llouses,pacpers, and effects, against zunreasonable searches and
seizures, shall not be violated; and no warrant 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."
"' No person shall be deprived of life, liberty, or property
without due process of law."a
It will be herein contended that these Amendments impose
such limitations upon Congress, as should prevent that body
from enacting such a law as the one now under discussion,
and that, therefore, this law should be at once repealed as
uncon stitution al.
In establishing this proposition, brief reference must first
lie made to some of the causes which led to the adoption of
these amendments.
Opposition to the adoption of the Constitution sprang
from  two  causes: first, an apprehension that the right
of the States to manage their local affairs, was not suffliciently secured to them; and, second, solicitude in regard
to the sanctions of civil liberty, including especially security for persons and property against the power of the
gelleral Governmlent.  This opposition prevented some of
time States from  approving, until amendments were provided for, designed to remove these objections; and it
was only on the assurances that such provisions should
ble mnade, that the adoption of the Constitution was finally, and with  great  difficulty,  accomplished.   These
lamnendilnents were introduced  by  Mr. Madison.  The
* Amendments to Constitution IV. V.




13
reason  for  their introduction  was stated  to  be the
hostility developed  in  the  State  conventions  against
the unlimited powers given to the general Govermnent,
and they were distinctly intended  for the sole purpose
of removing that hostility by restricting and limiting those
powers.  This is shown by the preamble prefixed to these
amendments as adopted by Congress. It is found in the
journal of the Federal Convention, as published in conformnity with the resolution of Congress, and is as follows' The convention of a number of the States hlaving, at the
time of their adopting the Constitution, expressed a desire,
in order to prevent misconstruction or abuse of its powers,
that further declaratory and restrictive clauses should be
added; and, as extending the grounds of public confidence
in the Governmentwill best insure the beneficent ends of
its institution, it is resolved that the following articles be
proposed."
These amendments were designed to accomplishl: first,
State independence in local affairs; second, freedom of religion, of speech, and of the press; third, trial by jury;
and fourth, security for persons, houses, papers, and effects
from unreasonable searches and seizures, including a denial
of power in the new Government to deprive a citizen of life,
liberty, or property " without due process of law."
In this brief review, the intention of the people in passing
the amendments can be clearly seen.  Additional sanctions
were demanded for popular rights. Especially were the
rights of personal liberty and of property to be more firmly
secured, the intention being plainly stated in the declaration
that no person should be deprived of them  " without (due
process of law."
Fortunately for our purpose, the meaning of the phrase
"due process of law" has been clearly established.  The
highest Court of the land has defined it.  Said Mr. Justice
Curtis:




14
"The Constitution contains no description of those processes which it was intended to allow or forbid. It does not
even declare what principles are to be applied to ascertain
whether it be' due process.' It is manifest that it was not
lef't to the legislative power to enact any process which
might be devised. The article is a restraint on the legislative, as well as on the executive and judicial powers of the
government, and can not be so construed as to leave Congress free to make any process'due process of latn,' by its
nere will. To what principles then are we to resort to
ascertain whether this process, enacted by Congress, is' due
process'? To this the answer must be twofold. We must
examine the Constitution itself to see whether this process
be in conflict with any of its provisions; if not found to be
so, we must look to those settled usages and modes of proceeding existing in the Common and Statute Law of England, before the emigration of our ancestors."T
Adopting this interpetation of the words " due process
of law," the next step is to inquire how this Act, authorizing the seizure of books and papers, comports with
"those settled usages-and modes of proceeding existing
in the Common and Statute Law of England," prior to,
and contemporaneous with, the adoption of the Constitution..Blackstone defines the Common Law to be a collection of
customs and maxims, which have acquired the force of law
by ilnmemorial usage, recognized and declared by judicial
decisions, and the best evidence of which is to be found in
the reports of such decisions, and in the standard treatises.
Turning to the Common Law, the books tell us that one of
the fundamental principles, rooted in the jurisprudence alike
of England and America, is that no man 8sould be compelled
* Case, Murray's lessee. 18 Howard, 276. Also, Taylor v. Porter,
Bronson, J. 4 Hill, 146.




15.o accuse himself.  So well established is this rule, that the
words, NYemo tenetur se Ipsum  accusare, are among the,
oldest maxims.  Whatever may be the usage under the
statute law  of the Continent, there is no dispute that in
tlhis country no man is bound to furnish evidence to condemn himself.  In all the fluctuations in the rules of law
in the past, no change has ever been made in this principle,
further than topermit the accused voluntarily to give evidence against himself: never compelling him to do so.
Mr. Chief Justice Marshall said, in the " case of Willie"    "It is a settled maxim of law, that no man is
bound to criminate himself.  This maxim  confirms one
exception to the general rule, which declares that every
person is compellable to bear testimony in a court of justice.... Many links frequently compose that chain
of testimony which is necessary to convict aty individual
of a crime. It appears to the court to be the true sense ofthe rule that no witness is compellable to furnish any one
of them against himself."
As long ago as the year 1680, it was held in the High
Court of Chancery in England, that the defendant need
not answer a bill for discovery, where his plea would
subject him, to  a forfeiture. t    Accompanying  tile
report of that case is a multitude  of references establishing the same principle.  A  few  years later, in 1736,
Lord Chancellor Hardwicke said: " There is no rule better
established in equity than that a person shall not be obliged
to discover what may subject him to a penalty, or any thing
in the nature of a penalty. "i
This same principle is incorporated into the municipal
law of the State of New York,which provides that: "Any comr
petent witness in a cause shall not be excused from answer* 2 Burr's Trial, 243.
t Bird v. Hardwicke, 1 Vernon Chan. Cases, 110.
T Smith v. Read, 1 Atkyn's Reports, 527. 




16
ing a question relevant to the matter in issue, on the ground
merely that the answer to such question may establish, or
tend to establish, that such witness owes a debt, or is otherwise subject to a civil suit.  But this provision shall not be
construed to require a witness to give any answer which
will have a tendency to accuse himself of any crime or
misdemeanor, or to expose hin to any penalty or forfeiture,
nor in  any  respect to  vary  or alter jany other rule
respecting the examination of witnesses."*
Said Chancellor Kent: " There are numerous cases establishing the rule that no one is bound to answer so as to subjecthimself, either directly oreventually, to caforfeiture o~r pcnalty, or any thing in the nature of a forfeiture or penalty."t
Said Chancellor Walworth: " The Constitution has wisely
provided that a party shall not be compelled, in a criminal
case, to be a witness against himself.  And this principle,
by the  ornmon Law, was extended to proceedings in civil
cases, where the witness was called upon to make a disclosure whicllmigllt subject htim to a forfeiture or pencalty, oir
to any loss in the nature of a pezalty.";
In the standard treatises onl evidence, the samne rule is
laid down as follows: "The  witness is privileged froln
answering a question, the answering  of which  might
subject him  to a penalty or forfeiture of any kind."~
Further:  "' Where an answer will subject a witness to a
forfeiture of any portion of his property, he is not bound
to answer, any more than in a case of exposure to a criminal prosecution or penalty. This rule holds good alike inll
equity and in law."b1 There is indeed no limit to the:
number and value of the authorities on this point.
*Rev. Stat. New-York, Part 3, Chap. VIT., Art. 8, Sec. 71.
f Livingston v. Tompkins, 4 Johnson's Chancery Reports, 431.
$ Livingston v. Harris, 3 Paige, 534.
~ Phillips on Evidence, vol. 2, p. 396.
II1 Greenleaf on Evidence, ~ 451, and authorities there collectel..




17
As to the opinion of the ftnnders of the Governmnent, there is no room for doubt. The whole subject of the
discovery of evidence was considered during the earlier,sessions of Congress, and mneans provided for compelling the
production of books and papers, carefully, however, excluding self-condemnation by the accused. In the Judiciary Act
of 1789, Congress enacted that the Federal Courts'shall
leave power, in trials of actions at law, on motion and due
notice thereof being given, to require the parties to produce
ibooks or writings in their possession or power, which contain evidence pertaining to the issue, in cases and under
circumstances where they mnight be compelled to produce the
same by " the ordinary rules of proceedinys in Chancery."
Under this Act, the production of books and papers is compellable: first, only for the purposes of the trial of actions;
second, only when such books and papers contain evidence
pertinent to the issue; third, only upon motion and due
notice; and, fourth, only in cases and under circumstances
where their production could be compelled'" by tile ordinary rules of chancery proceedings."
The repugnance between these lollg established statutory provisions for the production of evidence, and those
contained in the recent Act now being considered, requires
but brief notice. In the latter case, there is no action; the
seizure is entirely ex parte; there is no opportunity given
t) the accused to show cause why the seizure should not be
made; and the sole object of the seizure is to compel the
party to criminate himself, or to bring upon himself a
penalty or forfeiture. In each of these respects, the proceedings authorized by the Act are in direct antagonism to
those contemplated by the Fathers of the Republic.
What is meant " by the ordinary rules of proceedings in
chancery" is easily settled.  The same sources to which
Blackstone commends ns to ascertain what is the Common
Law, are to be resorted to here. Fonblanque, one of the
2




18
greatest masters of Equity Jurisprudence, speaking of the
objects of a Court of Equity in enforcing discovery, uses this
language: " It may also happen thaf the situation of the
defendant may render it improper for the court to enforce
a discovery, as when the discovery may subject the defendant to pains and penalty, or to a forfeiture, or to something
in the nature of a fobrfeiture."* Said Judge Betts, in
a case where a motion was made, under the statute of
1789, that parties be ordered to produce their books of
account: " The effect of the evidence sought for will be not
only to enable the plaintiff to recover his entire damages,
but the direct consequence will be to subject the defendants
to a penalty of three times the amount of those damages
We think it against the rules of equity to allow a
bill of discovery in such a case, unless the bill relinquishes.
all claim to the penalty which may be superinduced by the
production and exhibition of the books."t  Phillips says:
"I1 the courts of equity, it is an established principle
that a party is not bound to answer so as to subject himself to pains, penalties, or to any kind of punishment, or
to any forfeiture.'"   Story  says:  "Courts of Equity
will not entertain a bill for a discovery to aid the promotion or defense of any suit which is not purely of a civil
nature, for it is against the genius of the Common Law to
compel a party to accuse himself, and it is against the general principles of equity to aid in the enforcement of penalties
or forfeitures."~  The cases cited by this learned jurist, in
his references, are very full.
Mitford claims: " The situation of a defendant may render it improper for a court of equity to compel a discovery,
because the discovery may subject the defendant to pains
* Treatise on Equity, p. 495.
t Finch v. Rikeman, 2 Blatchford, 301.
T 2 Phillips on Evidence, 937.
~ 2 Story's Equity Jurisprudence, ~ 1494.




19
or penalties, or to some forfeiture, or something in the
nature of a forfeiture.  ft is a general rule that no one is
bound to answer so as to subject himrself to punishment,
whatever may be the nature of the punishment." *  Story
again says: " The rule is that the defendant shall not be'
obliged to discover what may subject him to a penalty or
forfeiture, or criminal accusation, and not what musti
only."t  Numerous English authorities on this point are collected by Mr. Raithby, in his note to Bird v. Tiarwicke,
1 Vernon, 110.
A decision of Judge Hopkinson is especially pertinent, If
having been given upon a suit to enforce a Revenue forfeiture, and is as follows: " The courts of the United States
have the power given to them to require parties to produce
books and writings in their possession or power, which contain evidence pertinent to the issue in the case, and under
circumstances where they might be compelled to produce the
same'by the ordinary rules of proceedings in Chancery.'
Is this such a case?  Would a Court of Chancery, on a
bill of discovery, compel a party to produce evidence which
would subject him to a forfeiture?  I[ think not. No such
order has been shown from a Court of Equity, and the
authorities hold a different doctrine.":
The furthest that any court has ever gone against this
principle, prior to the enactment of the present Seizure
Law, was in a case in which Mr. Justice Nelson delivered the opinion, holding that where a claimant of mer.
chandise, sued for a fraudulent violation of the Revenue law,
has the burden of proof imposed upon him by the Court,
according to the 71st section of the Collection Act
of 1'99,~ it is no error for the Judge to instruct the
* Mitford's Chancery Pleadings, p. 194.
t Story's Equity Pleadings, ~ 575.
$ U. S. v. Twenty-eight Packages of Pins, Gilpin's' Reports, 312.
~1 Stat. at Large, p. 627.




20
jury, that, if such clailnant refulses to produce his books
and papers as evidence of his accounts and transactions
with parties abroad, fromn whom the goods were purchased,
then the jury are at liberty to presume that his books
and papers would have operated unfavorably o(n his case,
if' produced.
It thus appears, that no such power as that claimed
under the Act now'under discussion, is to l)e found in the
Common Law, or in  the' ordimi,'y proceedings of a
CUhancery  court."   No such provision  for discovering
evidence has ever before found a place in our jurisprudence.  In these recent Acts alone, and for the firstt ti e,
Congress attempts-to accomplish, by indirect reanls, folr
the prosecutinlg officers of the Goverinment, whlat it haes
never accomplished b)efore, and what, under the Judicial'r
Act, with all its amendmrients, could never be accomplished
directly, either on a trial or in preparation for a trial.
Provisions analogous, in some degree, to those conltained ill
the law authorizing the seizure of books, ill the event of frauds
upon the Revenue, have Lbeen onacted( by Conglress, for tile
benefit of tle Department of Internal Revenue. In 1868, it
was enacted that, in case any person neglected to, make his
annual return to the Assistant Assessor of Internal Revenue,
and, upon being summoned to appear, refused to do so, the
official imight apply to the Judge of the District Court, or
to the Commissioner of the Circuit Court of the United
States, for an attachment; and the recalcitrant person
should be compelled to appear and to bring his books of
account for the purpose of examination.* It was also
enacted that a Commissioner of Internal Revenue, for
the purpose of detecting frauds in relation thereto, could
likewise summon any person to produce his books, and
could compel a compliance with such summons.  These
* 14 Stat. at Large, 101.




21
laws produced much irritation and much opposition, and
the officials frequently found it necessary to seek the assistance of the courts in enforcing them.
While the principles involved in the legal discussion of
these questions connected with the Internal Revenue Acts,
are not identical with those already discussed, still they are
sufficiently alike to make a brief recital of the more ilnportalt cases interesting. Before doing so, hlowever, reference
must be made to an Act of Congress, which was evidently
passed to allay the popular indignation, and meet the legal
objections urged against these Seizure Laws. This Act
was approved February 25th, 1868, and is as follows:
" No answer or other pleading of any party, and no discovery or evidence obtainecl, by means of any judicial )roceeding, from  any authority or witness, in this or any
foreign country, shcall be given in evidence, or in any
manner used  against such  party  or witness, or his
property, or estate, in any court of the United States,
or in any proceeding by or before any officer of the
United States, in respect to any crime, or for the enforcement ojf any penalty or forfeiture, by reason of any act or
omission of such party or witness. Provided, that nothing
in this Act shall be construed to exempt any party or witness from prosecution and punishment for the perjury
committed by him  in discovering or testifying as aforesaid."
In the case of Phillips, where, upon a summons to appear
before the Assessor and to answer questions, the party refused to answer, the Judge held that it was no defense for
such party, that his answers would tend to criminate himself, inasmuch as no disclosures or admissions so made
could be used against him, under the Act above quoted.*
In the case of Strouse, where the party refused to permit
* In re Phillips, Underwood, J., 10 Internal Revenue Record, 107.




22
an examination of his books, on the ground that the books,
if received in evidence, would criminate him, the Judge
held that, inasmuch as the testimony obtained from the
books would work injury no farther than to increase the
party's tax, he should submit to the examination; and that
the Act above quoted prevented the disclosures and evidence obtained from the books from being used against
him.*
In the Stanwood case, where there was a refusal to submit the books of account of a banking association to the
examination of a Supervisor, the Judge said that if the provision of the Constitution, protecting parties against being
compelled to produce such papers and documents as may
tend to subject them to criminal prosecution applies, they
are relieved from such liability by the provisions of the act
above quoted, which, the Judge said, was intended to
enable the Government, through its officers, to detect and
punish frauds by obtaining evidence from those otherwise
protected under the provisions of the Constitution.t
Does the statute of February 25th, 1868, above quoted,
forbid the use, for purposes of evidence, of books and papers
seized under the Customs Seizure Law of March 2d, 1867?
This point, it is believed, has not been raised in the United
States Court of this District, in such a way- as to call for an
opinion. In the United States Court of Massachusetts, however, in a recent case of great general interest,: it was held
by Judge Lowell, that, in view of the existence of this prohibitory statute, it was " diJficult to understand " how the inspection of books and papers is to be availed by the
Government for any useful purpose, since this Act provides
that no evidence thus obtained shall be used for any penalty,
or in any criminal action; that any evidence thus ob* In re Mark Strouse, Hillyer, J., 1 Sawyer, 605.
t Stanwood v. Green, 2 Abbott's Circuit Court Reports, 190.
2 Bingham v. Jordan, Marsh & Co.




23
tained might be used to collect duties, or be used by the
Collector in his future dealings with the same party or
others; but that it is no part of the law to seize books and
papersfor the benefit of the Collector, in the administration of his duties as Collector.
It should be observed that the language of the statute is,
that " no evidence obtained by means of any judicial proceeding" shall be used against the party. This statute,
therefore, can be set up, if at all, only where the books
and papers have been taken by a Warrant, and it can have
no application whatever, in cases where evidence is obtained  by other than judicial proceedings, as where
importers voluntarily surrender their books and papers
to  the Treasury  officials, under threat of seizure in
the event of refusal. Moreover, information obtained from
the books seized, can be used by the Government, upon the
trial, by a skillful concealment of the source from which that
information is derived. It would appear that this statute
restores to the citizen some part of those rights which the
statute relating to seizures took away; but the extent to
which it does so is a matter of such uncertainty that the
bearing of this statute upon our general discussion, and
upon the merits of the Seizing Law, will not be here estimated. Consequently, this discussion proceeds as if there
were no such law in existence.
The principles here contended for have not only always
been a part of the Common Law, but they are a part of the
Statute Law of England, as it now stands. In the reign of
George III. it was enacted by Parliament that a witness need not answer a question relevant to the matter in issue, the answering of which has a tendency
to accuse himself, or to expose himself to penalty or
forfeiture of any nature whatsoever, on the ground that
the answer of the question will subject him to a civil suit.*
* Stat. 46, George I:I., ch. 37. 2 Fisher's Digest, 3654.




24
How striking is the contrast between this Act and our
own legislation!  In this respect, the nation has lost by
breaking with the Crown, and has destroyed its liberties
by becoming a free people. To say nothing of the practical unwisdom  of passing  this Seizure Law, which
affords the Customs officials questionable aid in performing duties which they ought to perform without it, what
language is too strong to stigmatize such a departure
from the elementary truths of our jurisprudence, and such
profanation of the simplest tenets of our political faith.
Principles which our ancestors cultivated with reverence,.
which we imbibed with our earliest education, and which
commend themselves to the youth of to-day, by their truth
and simplicity, are ruthlessly transgressed.  Vast as are the,
material interests imperiled, how much more deplorable
is the reflection, that tame submission to such oppressive
proceedings, saps the vitality of a nation.  The indignant outburst of Chatham, known to  every American
schoolboy, and uttered while denouncing a law like this,
seems like a reminiscence of freer and braver days:
" Every man's house is called his castle. Why? Becauseit is surrounded by a moat, or defended by a wall? No! It
may be a straw-built hut; the wind may whistle around it,
the rain may enter it, but the King can not."
in sui)l)ort of the law authorizing the seizure of books
and papers, there can be said to exist one high authority.
It is a decision rendered in the Stockwell case.*  Said
the learned Judge in that case:
"Warrants to search dwelling-houses, stores, buildings,
and other places for concealed goods alleged to have been
illegally imported, and for the seizure of the goods for
trial, have been allowed by law fronl the organization of
the Revenue systemn to the present time, and it is not per* Stockwell v. U. S., 12 Internal Revenue Record, 88.




25
ceived that any greater objection can be takeln to a warrant to search for the books, inv\oices, and other papers appertaining to an illegal importation, than to one authorizing such a search for imported goods... Suffice it
to say that the acts were public wrongs, which subjected
the perpetrators to the penalty provided by law, and it is
as clearly competent for Congress to authorize the District
Judges to issue a warrant in such a case to search for and
seize the invoices, books, and papers evidencing such a
fraud, as it would be for a State magistrate to grant a warrant to search for and seize stolen goods."
Let us briefly state the difference between the principles
contained in this opinion, and those contended for in the
authorities previously cited.
When the Constitution was adopted, Search Warrants were
in use, and formed a part of the Common Law. This use, however, was confined to a few special cases, where that which
was to be seized was the subject-matter of a crime, and where
the public, or the complainant, had an interest in it or in its
destruction. Those special cases were familiar and well understood in the law.  Among them the kind of search now
under discussion had no place. Seizing books and papers for
Revenue frauds, and using them against their owner, were unknown. Search Warrants were, however, allowed for the following, as well as for somne other, purposes, namely: to search
for stolen goods, for goods supposed to have beenu smuggled
in violation of the Revenue laws, for implements of gaming
or counterfeiting, for forged bills or papers, and for treasonable writings. There were other special cases in addition
to these, but they were all well known.*  Stolen goods and
smuggled goods were the identical articles; the possession
of coullterfeit notes and plates were forbidden by statute;
* 4 Broom and HIadley's ('ommentaries, 333; Burns, Justice of the
Peace; Search Warrants.




and the writ2ing of treasonable matter was in itself an overt
act of treason, and the paper was seized for that reason. In
general, such Warrants were confined to cases of public prosecutions, instituted and pursued for the suppression of crime,
and the detection and punishment of criminals, and where
the thing seized, either was not simply to be used in evidence
but to be restored to its owner, or was a part of the corIpus delicti. Even in those cases, if we may rely on the authority
of Lord Coke, the legality of such Warrants was formerly
doubted, and Lord Camden said they crept into the law
by imperceptible practice. Their legality, however, in these
special cases, seems to have been firmly established.
Not only is it true that Search Warrants, known to the
Common Law when the Constitution was adopted, were
limited to special cases, and to criminal proceedings,
but it is also true that the distinction between Civil
and Criminal Proceedings was equally well established,
and was equally an inherent and fundamental part
of the law.  Civil courts and Criminal Courts were
two distinct systems.  They recognized  different parties, different objects, different remedies, and different
methods. In the Criminal Court, there was the public
prosecutor, aiming to suppress crime by convicting and
punishing the culprit, proceeding according to well-established legal principles; in the Civil Court, the parties were
private individuals, aiming at objects peculiar to their
various cases, by means of remedies and methods of
procedure peculiar to those courts. If the State entered
the Civil Court, it entered it as a private party, the crown
and sceptre being left at the gate. The same remedies and
the same rules were applied to both parties. The barriers
and restraints, which the criminal law had created for the
protection of the citizen, were evaded; an indictment by a
grand jury was not necessary; pleadings could be amended;
and the rule of evidence in criminal causes, that required a




27
moral certainty of guilt, was displaced by the less arbitrary rule of simple preponderance of evidence and reasonable
probability of truth. On the one hand, the State surrendered
the advantages incident to public prosecution, and, on the
other, gained the advantages incident to a purely civil
tribunal.
The Constitution was framed with reference to the law
as it then was, and, if the two statements just Inade are
true, the Constitution was adopted with reference to them.
When, therefore, that clause was inserted, which says that
no person shall be deprived of his property " without due
process of law," it settled at least two questions beyond
the power of Congress to change them:  first, that Search
Warrants are allowable only in special cases, such as were
then well established; and, second, that if the State wishes
to avail itself of a Search Warrant in other than these special cases, to do so it must proceed in the Criminal Courts.
It is true that Congress may change the laws of evidence
and procedure pertaining to the Civil Courts; but if it does
so, it does so for all parties that enter those courts.  To
legislate that the government shall seize books and papers
in civil cases for the purpose of convicting their owner, and
to deny that power to other parties,.is to create an exception, as well as to confer a privilege, and that Congress
can not do.  This would aot change a rule, but would set
aside all rules.
In this connection, language of the learned writer on
constitutional law already quoted from, is of remarkable
significance. " The Constitution," he says, " is to be construed in the light of the Common Law, and in the light of
the fact that the rules of the Common Law are still left in
force, and that, in judging what the Constitution means, we
are to keep in mind that it is not the beginning of law for
the State, but that it assumes the existence of a wellunderstood system of Comrmon Law, which is still to remain




28
ill force and be administered....  We think it
would generally be safe for the legislature to regard all
those searches and seizures unreasonable, which have hitherto
been unknown to the law, and, on that account, to abstain
from authorizing them, leaving the parties and the public
to the accustomed remedies."
As to whether tile Statute authorizing the seizure of
b)ooks and papers is remedial or penal, it is not material to
inquire.  The Secretary of the Treasury, hlirnself an able
lawyer, in his recent letter to a Committee of the Senate,
expressed an opinion that the law "is both remedial and
preventive."  The general drift of the autllorities sustains
that opinion. As a remedial Act the law is an innovation
unwarranted by precedent, and is in conflict with the Conlmon Law; and as apencal Act, it violates the Constitution,
in that it makes an accused party. furnish evidence against
himself. If the severity of the punishment (can be used as
a test, by which to determine whether a law is penal, the
Statute in question deserves to be classified among the
penal Acts. In a well-knowln case in this city, where
books and papers were seized for an alleged fraud on the
Revenue, neatrly a million and a ha!f qf dollars were
claimed, and over a quarter of a million actually paid, for a
loss to the Revenue of a little over sixteen hundred dollars.
Fraud in a single item of an invoice of goods, forfeits the
entire face of the invoice.
Rerelnmbering, with reference to the  )rogress we are
making in this discussion, that we are still testing the
Seizure Law by the interpretation given by the Supreme
Court to the words " due process of law"; and that, in accordance with that definition, we are seeking to determine
whetherl~ seizures were among " those settled usages and
modes of proceeding existing in the Colmmon Law when the
* Cooley's Constitutional LimitiLtions, 60.




Constitutioll was adopted," let us take a rapid view of what
hlas been held by tile Courts on this sublject, from a remote
period until thle present time.
The search of private premlises and tle seizure of private
lapers, were early made ullder General Warrants.  Those
Warrants were plrocesses issuing from  tle office of a State.Secretary-, directing the arrest of any1 parties, without )articularly   d(escribing thell, whoxvm   were alleged to be violating
certain laws.  Writs of Assistance were of a, siililar nature
and were issued upon oathl lbeing Inade that goods had been
landed, \without dlue entry tlhereof having beeml first mlade.
These Writs authorized anl entry to be mnade into any lhouse,
in the day-time, wlere groods were suspected to be concealed,.lld, in case of resistance. to break open suIch hotuse, anIld to
seize and seeure such goods so conlcealed.  Writs of Assistance were inltroduced in the reign of Charles TI., provisioll
being ~made that no houses should be entered except wit/lHi
one month of the supposed otfense, and furtller providing
for a remedy against tle info)rmler, where tlle clllarge proved
to be false.  Their use was a source of excessive irritation
to thle Home Goverllment, and they do not appear to have
been granted in any of the Colonies, except in rare instances.  Thle Jucdges, in several of the Colonies, wllhe  applied to for Writs of Assistance, refused tllem, " froin a
tender regard to the Constitntion, and to the riglhts of Anlerican freeholders." In England, the practice of issuing these
Writs continued until a much more recent (late, when a
limit was imposed upon their use, by an order from  the
Board of Customs, providing that such Writs should not be
delivered to any officer,unless he should previously make oath
before a mnagistrate,  of iris belief, and of the grounds for his
l)elief; that smuggled goods were lodged in a certain house.
The first application for a Writ of Assistallce, in Massachusetts, is said to have been made ill 1754.  The outstanding
Writs expired after the demise of King George.  Upon the




30
death of that king, a petition of the merchants of Boston
was presented to the court of the Province, asking a hearing on the subject of alld against Writs of Assistance. The
representative of the Government filed a memorial, praying
that counsel might be heard in favor of the Writs, and Mr.
Otis, upon whom, as Advocate-General, devolved the task
of defending the legality of the Writs, resigned his position
rather than perform  that duty.  He was immediately retained to appear in opposition, by the merchants of Boston,.
and his memorable speech upon that occasion drew fromn
John Adams the admission that " Mr. Otis's oration against
Writs of Assistance breathed into this nation the breath of
life." A learned commentator on the Constitution* remarks:'" It is hardly necessary to remind the reader, that one of
the immediate causes of the estrangement between the
American Colonies and the mnother country was the issuing
of Writs of Assistance, which were subject to all the objections for which General Warrants had recently been condemned in England."
The hostility to the use of these Writs led to the insertion
in the Declarations of Rights, prefixed to the constitutions
of different States, of provisions against them. In Massachusetts, for instance, a clause was inserted as follows:
"Every subject has a right to be secure from  all unreasonable searches and seizures of his person, his house, and
all his possessions.  All Warrants, therefore, are contrary
to this right, if the cause or foundation of them be not
previously supported by oath or affirmation, and if the
order in the Warrant to a civil officer to make search in the
suspected places, or to arrest one or more suspected persons,
or to seize their property, be not accompanied with a special
designation of the persons or objects of search, arrest, or
seizure; and no Warrant ought to be issued but in casesand with the formalities prescribed by law."
* Story on the Const., par. 1901 (n.)




31
The substance of this article was incorporated into tile
Amendment to the Constitution of the United States.
The most noted, as well as the most valuable decision,
involving the principles incident to the use of General
Warrants and Writs of Assistance, is the case of Entick v.
Carrington. In that case, the liberty of the citizen, and
the immunity of books and papers from seizure and search
at the hands of the Government, were asserted by the emphatic judgment of Chief Justice Pratt. This distinguished
Judge, afterward Lord Camden, deserves a high place in
the regard of every student of Constitutional Government,
for his thorough knowledge of, and faith in the fundamental laws of England, no less than for the independence and
vigor with which he asserted them. Prior to this case, the
numerous actions commenced by Wilkes against those
messengers of the Government who had arrested him and
carried off his private papers, to be used as evidence, had
resulted, first, in favor of heavy damages against the State,
and, second, in declaring the warrant and the seizure
of papers unconstitutional, illegal, and absolutely void.
These decisions received the approval of Lord Mansfield
himself.
The case of Entick v. Carrington* demands extended
notice. It was as follows:
A paper called The oVlonitor, containing reflections upon
the Government, had been issued, and the Earl of Halifax,
Secretary of State, ordered the seizure of the books and
papers of Entick, as a means of determining whether he was
one of the writers of the obnoxious articles. Entick brought
an action for damages against the King's messengers, who
entered his house and seized his papers, claiming that they
broke open, read over, and pried into all his private papers
and books, and that they carried away many of them, to
* 19 State Trials, 1080, A.D. 1765.




32
his damage.  fit the course of the trial, the counsel for
Entick claiined that tile power to issue the Warrant under
which the seizure was made, was contrary to the genius of
the law of England; that the fact that such Warrants had
been granted by previous Secretaries of State was no
answer to the unconstitutionality in this case, for no usage
or continuance could make an unlawful act good; that
the publishAng of the libel was the crime, and not the having
a copy of it locked up in a private drawer in a man's study;
that if having it in his drawer was a crime, no power could
break into his house to search for it, in order to use it in
evidence against him; and that such a search would be
worse than the Spanish Inquisition, for ransacking a man's
secret drawers and boxes to conme at evidence against him
is like racking his body to come at his secret thoughts.
It was further claimed, that a Search Warrant for stolen
goods differs from this seizure in that only the stolen goods
are taken, and not all the goods in the house; and that if
the stolen goods are not found, all who entered the house
are trespassers; and, finally, that the Court, as the protector of the liberty and the property of the subject, should
demolish this system of seizures, "which is nothing but a
monster of oppression, and should tear into rags this remnanrt f Star Chamber tyranny."
Lord Camden, Lord Chief Justice, delivered a very
lengthy opinion.  He held that the great end for which
men enter into society is to secure their property; that
papers are the owner's goods and chattels, and are his
dearest property, and are so far from enduring a seizure,
that they will hardly bear an inspection; and, though the
eye can not, by the laws of England, be guilty of a trespass,
yet when private papers are removed and carried away, the
secret nature of those goods will be an aggravation of the
trespass, and demand more considerable damages in that
respect; that if the point in this case should be deter



33
mined in favor of the jurisdiction, the secret cabinets and
bureaus of every subject in the kingdom will be thrown
open to the search and inspection of a messenger; and that
AIn consequence of it, the house may be searched, the lock
and door of every room, box, or trunk broken open, all the
papers and books may be seized and carried away, the house
rifled,and the most valuable secrets taken out of the possession
of their keeper before the charge against him is brought to
trial, and before he is convicted..    " /&tat there is no proeess agacnst papers;n clvii cases; it has been often tlried, but
never prevailed."... That it is very certain that the law
obligeth no man to accuse himself, because the necessary
means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust,
and it should seem that search fbr evidence is disallowed
upon the same principle thereto:  the innocent would be
-confounded with the guilty... "I will always," said
Lord Camden, "set my face against these pernicious warrants when they come before rme, and slloul:l recomlnend
mnost warmnly to the jury always to colivict wllen the proof
is clear."
It is stated, thlat the Lord Chief Justice who delivered
the opinions in the two cases above referre.1 to, denying
the legality of General Warrants, and explicitly denouncing Search Warrants for private papers, as evidence of crime,
was of the opinion, when the question of the discharge of
Wilkes on habeas corpus was first brought before him,
that the warrant for the arrest of Wilkes, and for the seizure of his papers, was legal; and, it is further stated,
that the  ground  upon which  he was released  from
custody, was simply that he was a Memlber of Parliamnent.   Subsequently, l owever, when  the  question
of these seizures was argued at length, and the terrible possibilities under them fully exposed, this great
Judge condemned, in language of unusual emphasis, the is3




34
suing of such warrants as oppressive and unconstitutional,
notwithstanding the special verdict of the jury, which is
given at length in the report of the case, that many such
Warrants had been issued since the rebellion, and notwithstanding the fact that the use of them had been adopted
by many of the most popular ministers.  He referred the
origin of the practice, to borrow the language of Mr. May,*b
to the Star Chamber, which, in pursuit of libels, had given
Search Warrants to their messengers of the press, a practice which, after the abolition of the Star Chamber, had
been revived and authorized by the licensing act of Charles
II., in the person of the Secretary of State; and he conjectured that this practice had been continued after the expiration of the act —a conjecture shared by Lord Mansfield
and the Court of King's Bench. With the unanimous concurrence of thle other Judges of his Court, this eminent magistrate finally condemned this dangerous and unconstitutional practice.
Meanwhile, as Mr. May further states, the legality of a
General Warrant llad been repeatedly discussed in Parliament. While trials were still pending, there were obvious objections to any proceeding by which the juldment of
the courts would be anticipated; but, in debate, such a warrant found few supporters. Those who were unwilling to
condemn it by a vote of the house, had little to say in its defense. Even the Attorney and Solicitor-General did not
venture to pronlounce it legal. In 1766, however, the Court
of King's Bench had condemned the Warrant, and the objections to a declaratory resolution by Parliament were
therefore removed. The Court of Common Pleas had pronounced a Search Warrant for papers to be illegal; and,
lastly, the more liberal administration of the Marquis of
Rockinghaln had succeeded to that of Mr. Granville. Ac* 2 May's Const. Hist. Eng. 251.




35
cordingly, resolutions were now agreed to condemning General Itarrants as illegal, whether for the seizure of persons
or pajpers.*
A bill was introduced to carry into effect these resolutions, and passed by the Ifouse of Commons, but was not
agreed to by the Lprds.t A declaratory Act was, however,
no longer necessary; the illegality of the Warrants had been
judicially determilled, and the judgment of the courts confirmed by tile RHouse of Commons, and approved as well by
popular opinion as by the first statesmen of the time. The
cause of public liberty had been vindicated and was henceforth secure.
Mr. Burke, in his " Short Account of a Late Short Administrationl,"+ condenses these great events into two sentences.  He says:
" The administration which in IJuly, 1765, came into
office under the mediation of the Duke of Cumberland,
and was removed July, 1766, under the mediation of the
Earl of Chatham, presented in one' year, among other
resolutions, the' following:
" The personal liberty of the subject was confirmed by
resolution against General Warrants.
" The lawful secrets of business and friendship were
rendered inviolable by the resolution condemning the seizure of papers."
These events occurred in 1765 and 1766, ten years before the Declaration of Independence, and little more than
twenty years before the adoption of our Federal Constitution. During these periods, the discussion of the great constitutional principles, settled, in large part, by the cases
above referred to, engrossed the attention both of Great
Britain and of tile American Colonies. When our indepen* 16 Parl. His. 209.             t Ibid. 210.
t Burke's Works, Little, Brown & Co.'s Ed., Vol. I., p. 207.




dence had been finally established. and the ConlstitutioTl
was to be framed, our fathers went over these great decisions, at the same time with Xiagna C/harta and the Bill
of Rights, and whatever was found there to favor individual liberty was carefully inserted in their own system —" inlproved by clearer expression, strengthened by heavier sanctions, and extended by more universal application."
Under this branch of the discussioll. but two other illustrations will be given of the abhorrlence with which the seizure of books and papers is regarded in the eye of tile law.
One of the cases referred to is that of Robinson v. Richardson
(13 Gray's Reports, 454), and was a petition for a Writ of
Mandamus, to be addressed to tile Judge of Probate and Itlsolvency, to hear evidence, with a view to his becoming
satisfied of the reasollableness of granting to the petitioner
a Warrant, to search in the places and for the property
and books of account in their said complaillt particularlyV
mentioned  and  described.   Under, and  ill pursuance
of; the provisions of the statute of Massac(elllsetts,* it
appeared that the petitioners had  bleeni d(uly-  al)pointel
assignees of the estate of anl insolvent debtor, and that
they had made and presented to the respondent a written complaint, in due forln of law, properly sworl to, represenlting that there was reasonable cause to believe that celitain property and books of account, belonging to the estate
they represented, were secreted and concealed in the several
places mentioned; and, thereupon, they prayed that a
Warrant might be granted, according to the State law, to
search for the same.  This complaint was received by the
respondent, but he refused to hear the evidence ofered in
support of the allegation set forth in it, or to issue the
WVatrrant prayedfor, in pursuance of the provisions of the
a]ppropriate State statute,t ulpon the ground that the pro* Stat. of Mass. 1859, p. 196.
t Stat. of Mass., 1856, l). 284. sec.:36.




ceedings therein authorized, were in  violation of  the
constitutional right of every citizen, to be secured from
all unreasonable searches and seizures of his person,
his houses, his papers, and  all his possessions.*   The
decision  of the  question  was referred  to a higher
court for final adjudication.  In the opinion of that court
the only question was, whether it is within the constitutionlal power of the legislature to confer authority
upon any llsagistrate or judicial tribunal, to issue a warrant
under the circumstances, or for the purposes enumerated
and described, or lupon any officer or citizen a right to serve
and execute it.  The Court said:  " Search Warrants
were  never recognized  by the Common Law, as processes wllich  might be  availed of by  individuals in
the course of civil proceedings, or for the maintenance of
ally mere private right, but their use was confined to
cases of public prosecutions, instituted and pursued for
the suppression of crime, or the detection and punishnment of criminals.  Even in those cases, their legality
was formerly doubted, but their legality has long been considered to be established, on the ground of public necessity, because without them felons and imalef actors would
escape detection. The principles upon which the legality
of such Warrants could be defended, and the use and purpose to which by the Common Law they were restricted,
were well known to the framers of our Constitution.  Having this knowledge, it can not be doubted that by,the
adoption of the fourteenth article of the Declaration of
Rights, it was intended strictly and carefully to limit, restrain, and regulate the granting and issuing of Warrants of
that character, to the general class of cases in, and to the
furtherance of the objects for which they had before been
recognized and allowed as justifiable and lawful processes,
* Declaration of Rights, State of Mass., Art. 13.




38
and certainly not so to vary, extend, and enlarge the purposes for and occasions on which they might be used, as
to make them legal and available in the course of, or for the
maintenance of civil proceedings. All searches, therefore,
which are instituted and pursued upon the complaint or
suggestion of one party, into the house or possessions of
another, in order to secure a personal advantage, and not
with any design to afford aid in the administration of justice, in reference to acts or offenses in violation of the penal laws, must be held to be unreasonable, and, consequently,
under our Constitution, unwarrantable. illegal, and void.
The provisions of the statute of 1856, chapter 284, paragraph 36, seem clearly to be obnoxious to this objection.
The Search Warrant, which the Judge of Insolvency is
thereby, upon the complaint of the assignees of an insolvent debtor, authorized to grant, has no relation to the alleged criminal acts, or to the support of any public prosecution, but is to be used exclusively in mere civil proceedings, and as a remedial process, in cases where nothing but
a personal claim or the right to prosecute a civil suit is
involved. Any authority given for such purpose, is in violation of the fundamental principle, that every citizen is
entitled to be free from all unreasonable searches and
seizures of his houses and possessions, and, therefore, it can
not lawfully be conferred.... The Judge of Insolvency for the County of Middlesex, therefore, rightly refused to grant the prayer of the complainants, as set forth
in their complaint; and their present petition for a writ of
mandamus must, accordingly, be dismissed."
The Juadge who " rightly refused " to g~rant an order to
search for books and papers, and whose firmr  stand in behalf of sound constitutional princiiples was upheld by the
appellate triibunal, was The  owonorable VT;illam A. Richardson, Secretary of the Treasuri-y of the United AStates.
The Bill of Rights of the State of New York, contains a




39
provision similar in language and purport, to that contained
in the Declaration of Rights of the State of Massachusetts,
already referred to, and to that used in the fourth article
of amendment to the Federal Constitution; and the limitations imposed by this provision upon the various departments of the government, with reference to the subject of
inquisitorial searches and arbitrary seizures of private papers, have been, in one instance, thoroughly discussed in
this State.  That discussion is of special value in this
connection, as it meets the argument most often and
most urgently used in support of the Seizure Act of
1867, namely, that the seizure of books and papers is
justified by the fact that they are to be used for public purposes, in support of public law, and for the public good.
The case referred to arose in this State in the year 1840,:and called for an official interpretation of the meaning of
the phrase, " unreasonable searches and seizures."  It was
fully argued on the one side and the other, by Recorder
Morris and Attorney-General Willis Wall, and was, in the
end, passed upon by Governor Seward, and his decision was
approved by the Senate. The facts are these: In October,
1840, Recorder Morris, of the City of New York, ireceived
evidence which, in his judgment, tended to establish that a
conspiracy had recently existed to violate the election laws,
by the importation of voters from Pennsylvania, and
had proved successful.  Mr. Pierce, a citizen of New
York, had in his possession, at his dwelling-house, a packet
4of letters and papers belonging to, and written by, persons
who were supposed to be members of the conspiracy, which
had been deposited in his hands for safe keeping.  Believing that these papers contained important evidence for the
State, the Recorder, in company with the Mayor of the City
of New York, went to the house of Mr. Pierce, in the nighttime, in their official charactter, and demanded of him the
papers iand letters.  iMr. lierce iliforlrled these officials




40
that he had a bundle of papers, which, lie had learned from
Glentworth, the accused  party, related to transactions
which were under investigation before the Recorder, and
which were handed to him under a promise, upon his part,
that he would retain them for Glentworth, and he therefore
refused to hand them over. The Recorder stated to Pierce,
that if he did not deliver the packet, he (the Recorder), by
virtue of his authority as a magistrate, would search
for the papers, and seize them  by force.  The Recorder
avowed these acts in a charge to the Grand Jury. The Governor, under date of December 29th, 1840, thereupon addressed a communication to the Recorder, in reference to
this charge, in which hlie said:' Every judge or justice of the peace has the same right and power
of search that you can lawfully claim, and if the power of search bepossessed by such officers, to the extent which you have exercised it,
and maintained it before the Grand Jury, the dwellings of our fellowcitizens, whether they be innocent or guilty of offense against the laws,
their family affairs, their private transactions, and even the meditations
of their hearts, are all exposed at the discretion of a magistrate, and we
-are without safeguards against oppression and the abuse of power.
With these views, I shall deem it my duty to recdmmend your removal,
unless you deny the fact or can change my convictions in respect to the
illegality of the specified proceedings."
On January 8th, 1841, the Recorder made a reply to the
communication of the Governor, and defended his conduct.
He said that tile facts testified to, " established, in his
judgment, that there had been a conspiracy to subvert the
fundamental principles of our Republican Government;"
that hlie deemed it his duty "to make every legal effort to
obtain the receipts for money paid for illegal votes before
they should be destroyed."  He admitted that a " searchwarrant can not issne to take the property of the accused,"
but insisted that " there are cases where no search-wtarrant
can lie," and yet the magistrate may search, or may direct
others to make the search.  lie referred to the usage of the



41
department to search f)r, antd seize tile stawnps, dies, and bills
of counterfeiters, the false keys of burcglars, the weapons and
garments of munlrderers.  He denied that lie had threatened
to search among the private  papers of Pierce, to obtain
evidence of the crime of the latter, but relying upon the
Uesage, had threatened to search to obtain evidence to establislh the crime of Glentworth and other conspirators.
The defense of Recorder Morris was, by Governor Sew
ard, referred  to  Attorney-General Willis Wall for  an
opinion, which was given January l1th, 1841.  From  this
opinio]n, as lunch is given as affects the question now under
discussion, as to whether a warrant to search and seize private papers for purposes of evidence, to produce a forfeiture of goods, or a criminal conviction, is permitted  or
justified.  Extracts are appended:
"It is denied (by me) that any law exists in this State authorizing the
search for and seizure of private papers. The exercise of such a law is
utterly inconsistent with two of the most universal and most cherished
principles of the Common Law. The first is, that the house of the
peaceable, unoffending citizen is inviolable.            The other
is, that " no man can be compelled to testify against himself." If a
man's private papers can be forced from his possession, no matter
whether with or without warrant, if his house can be searched, his
trunk and his drawers broken open to furnish evidence against himself, as a criminal accusation, why not apply force to his person? Why
not rack his frame, and tear his flesh with pincers, to extort confessions of his acts and his motives, and the thoughts of his heart? The
principle is the same. It is in both cases forcing the accused to give
evidence against himself. It is the application of the torture. A few
cases will show how carefully the courts have guarded against evidence
of this kind. In the case of Rex v. Lee (1 Wil. 240), the court say:
"The rule heretofore granted in this case to inspect the parish-books
ought not to have been made, because it was obliging the defendants to
produce evidence against themselves, and the maxim that' no man shall
be bound to accuse himself,' has always been so religiously adhered to,
that in the case of a witness, if any case be put to him which may affect
himself, he shall not answer thereto, although possibly his answer
might do complete justice between the parties; s,. that the law will
rather suffer a particular irjustice titan break through this maxim which
would be so generally inconvenient."  In the case of Rex v. Dr. Purcell (1 Wil. 23!)), the court refuse a l ile  re('(liril!  the books of the
corporation of ()xfoi d to he open for  lhe inspection of' tile AttornleyGenerai, in an illlill.lt'ti IJ WI gillst Dr. Purcell, thle Vice-Chancellor, for




42
a misdemeanor.  They say: "If this court should grant this rule, it
will, instead of doing justice, lay the foundation for something like an
inquisition of State; for this court sits to hear evidence, not to furnish it."
In the case of Rex v. Dixon, decided 3 Burn. 1687, a subpcena duces
tecum was issued to give evidence before a Grand Jury, and to produce
three vouchers, which had been produced and insisted upon by one Mr.
Peach, the defendant's client, before a master in chancery, and this
subpoena with the duces tecum was in order to found a prosecution by
way of indictment against Peach, who had produced these vouchers
before the master, for forgery. Mr. Dixon refused to appear.  On
motion for an attachment, Lord Mansfield was clearly of opinion that
"' Mr. Dixon was not compellable to deliver up these papers against his
client, and that instead of producing them against his client, he ought,
immediately upon receiving the subpoena duces tecum, to have delivered
them up to his client." So in the case of Holden & Ray v. Harvey
<4 Bur. 289), Lord Mansfield says: " That in civil cases, the court will
force the parties to produce evidence which may prove against themselves,.or leave the refusal to (lo it as a strong presuinption to the jury;
but in a criminal or penal case, the defendant is never forced to produce any evidence, though he should hold it irn hands in court." So
vitally important is this protection deemed, that the declaration, "No
man shall be compelled, on any criminal case, to be a witness against
himself," is inserted in the Constitution of the United States, repeated
in the constitution of this State, and reiterated in our own Bill of
Rights.           The Recorder, therefore, who has exercised this
power of search and seizure of private papers, and declared his intention to continue to exercise it, is bound to show some precedent or
authority in law for so doing, and this he has attempted to do. He cites
several cases, as 2 Stark, Rep. 284; 1 Leach, 235; Warson's case, 2 Stark,
140, 137; Robinson's case for murder of Ellen Jewett; Townsend's
cases for maiming with vitriol; Lazarus' case for forgery; Phebe Ann
Floor for murder; and he might have cited many more, where paper or
Mother articles found on the persons or in the possession of the accused
have been used, on their trial, as evidence against them without objectin.  If objection had been made, the authority of the cases would have
been the stronger.  But why has not objection been made?  Not
because nobody ever doubted the right to search for and seize private papers, but because nobody ever doubted that if the evidence
was pertinent and legal, the court would not and could not form
a collateral issue to ascertain how it was obtained. And even if
the illegal manner of obtaining it were admitted, it would form
no legal objection to the testimony, and the court could not, on
that account, reject it. This principle was fully recognized in the
case of Jordan  v. Lewis (14 East.. 304, note), and Leggett v.
Tollervey, where the papers were not only illegally obtained, but
against the express order of the court, and were objected to on
that account; yet the court received them, declaring that "they could
not take notice in what manner they were obtained."  Precisely the
same kind of precedents were resorted to by the advocates of arbitrary
power in their vindication  of general warrants; but Camden and




43
Dunning reply the maxim of law, quod hfieri non debet factum  valet,
" An unlawful manner of coming by papers will not prevent their being
evidence when produced." (See a letter concerning libels, warrants,
the seizure of papers, etc., written by Camden and Dunning, 1771, 7th
edit., p. 155.)  Again, in Entick v. Carrington: "And if it should
be added that these warrants (to seize papers) ought to acquire some
strength by the silence of those courts which have heard them read so
often, upon returns, without censure or animadversion, I am able to
borrow my answer to that pretense from the Court of King's Bench,
which has lately declared, with great unanimity, in the case of general
warrants, that as no objection was taken to them upon the returns, and
the matter passed sub silentio, the precedents were of no weight." The
class of cases, therefore, referred to by the Recorder does not, directly
or indirectly, involve the principle, and proves nothing.... But
if the argument of convenience or necessity is to be allowed, let it at
least be restricted to the case in question, the case of seizure of papers.
The law has very carefully provided and described the manner of bringing papers which are evidence in any civil or criminal case before the
court. If one party desires to use as evidence, papers in the possession of the other party, he must give notice to produce them, and if
not produced, lie imay give parol evidence of their contents.  The case
of Rex v. Watson et al. (2 T. R. 199) was an application on a criminal
information for a libel, consisting in a certain resolution and order
entered in corporation books. Buller, J., said, "It has been solemnly
determined, that in a criminal prosecution you may give notice to a defendant to produce a paper in his possession, and if he refuses you may
give other evidence of it."  The case of the State v. Kinehough (2d
Devereaux, No. Cor. Rep. 431) was a case of murder, and notice was
given the prisoner to produce sundry papers, and on refusal, parol
evidence of their contents was admitted.  But so far was the right of
search and seizure of papers in this case from being admitted, that the
counsel for the prisoner strenuously objected even to the admission of
any evidence of their contents.  The court say: "This  secondary
evidence was properly received, because it was the best evidence in the
possession of the prosecution.  It is the same thing (i. e., the possession
of the papers, by the accused) as if the primary'was actually destroyed.
The principle of the common law, that no man shall be compelled to
give evidence against himnself, sanctioned by the Bill of Rights, protects
the defendant in the possession of the primary evidence.'l'he object
of the notice is not to compel the production of the paper (for no such
power is assumed, either directly or indirectly), but placing him under
a disadvantage if he does not produce it."
The case of the United States v. Britton (2 Mason 464) was a case
of forged notes, remaining in the hands of the forger. The District
Attorney did not ask Judge Story for a warrant to search for and seize
them, nor did he even ask the venerable judge to descend from the
bench and go and seize them himself. He simply desired to describe
the notes generally in the indictment, and be permitted, after notice to
the prisoner to produce the originals, to give evidence of their contents, which the court permitted him to do. These cases, and hundreds of others which might be adduced, show most clearly what is




44
the established practice when the papers are in the actual possession  of the accused            All the decisions which have been
made respecting the illegality of warrants to authorize the search!
for and  seizure of private papers are at least equally damnatory
of all magisterial searches and seizures in  similar cases. dThe
objection is to the power, not to the evidence of the power.  We
m ty, therefore, without the  least danger of error, consider theauthorities which we now  propose to examine on the subject of
such warranlts, as applicable in all their force to the present case.
Lord Coke says (4 Just. 177): " For justices to make warrants, upon,
surmises, for breaking in the houses of any subjects, to search for
felons or stolen goods, is against Magna Charta.  For though commonly
the houses or cottages of poor and base people be by such warrants
searched, yet if it be lawful, the houses of any slubject, be lhe never
so great, may be searched upon such warrant upon bare surmises.'"
Lord Camden says (19 State Trials, 1067):' The case of searching for
stolen goods crept into the law by imperceptible practice. It is the,
only case of the kind that is to be met with." Here is the authority of
two mighty names, that the rights of search was unknown to the Conmmon Law, in any case whatever. The first record of search-warrants
for any thing but stolen goods originated in the Couirt of Star Chamber, in the time of Elizabeth. It was then first used to search fior
libels and unlicensed books, continued to be so used until the abolition
of that tyrannical and oppressive court. (19 State Trials, 1069.) Instances are found of the exercise of this power in the Court of' King's
Bench, in trials for high treason, in the time of the Stuarts.  Indeed,
most of the judicial murders perpetrated by Jeff-eys and by Scroggs
were effected by means of private papers, found on breaking open
drawers and trunks in possession of the victims.  Such was the case
of Algernon Sidney, whom History, recording the verdict of Time, has
pronounced " a patriot, a philosopher, and a Christian."  He was tried
by the execrable Jeffreys, and condemned and executed for high
treaison; and the principal evidence against him were certain private
papers found in his closet, and seized by a warrant from the Secretary
of State, in which he asserts the treasonable doctrine that the power of
the king is derived from the people! (See trial of Algernon Sidney,
9 State Trials.)  Such was also the case of Edward Coleman, a
Catholic priest.  His home was searched, his boxes and escritoirs
broken open, and his papers seized, by virtue of a search-warrant from
the King's Council.  He was tried before Chief Justice Scroggs for
high treason, and sentenced " to be hanged by the nleck. and cut down
alive, his bowel, burnt before his face, and his quarters severed, and
his body disposed of as the king thinks fit."  The evidence on which
this barbarous sentence was founded consisted (except that of the
notoriously perjured Titus Oates) in certain old letters, bearing date
several years before, violently taken fromn his possession, and which
related exclusively to the advancement of th-e Catholic religion in England. (Trial of Edward Colemrnn, 7 State Trials.) Soon after, William
Ireland, Thomas Pickering, and John Grove, Catholic priests, were
tried at the Old B tiley, before the same judicial mlonster, Chief Justice
Scroggs, and convicted and executed on the samile kind of evidence,




45
obtained in the same violent and lawless mnanner.  Many similar cases
might be referred to in the reigns of Charles and James, and many in
later times; but in no one of them was the question of the legality of
the seizures of the papers made or discussed, nor can any such case
be found,, until the great case of Entick v. Carrington, decided in the
King's Bench in 1765, in which the seizure of private papers was
declared by all the judges to be illegal. The eleventh section of our
Bill of Rights is an attempt to embody a principle. It is not so much
in the nature of an act of legislation, as it is of constitutional limitation
of' legislative power. It is not directed against search-warrants, but
against the right of search.... Acting iln the spirit of this provi.ion, the legislature have authorized searches in certain specified
cases, and calefully prescribed the manner in which it shall be done.
But they have not thought that a search for or seizure of privatepapers
was "reasonable," and in no case have they authorized it to be done.
The act, therefore, of the Record er, in seizing these papers, is a manifest
usurpation of a power authorized by no law, and which has been
exercised in a inan er in direct violation of the Bill of Rights.
After hearing the Recorder iln defense of his cinlduct,
anid the opillion of the Attorlley-General tlherein, the G(overnor, in a special message to the Sellate, reconlnrended that
Mr. Morris be  removed  from   office.*  In1 this message,
Governor Seward said:' After very mature deliberation on the subject, I am satisfied that,
in the case in which the proceedings occurred, any search-warrant for
the private papers of the accused, which papers were not alleged to
have been feloniously or unlawfully acquired, would have been a violation of the most sacred private rights, and of the most cherished principles of civil liberty; and that the seizure of the papers in such a
case, by a judicial officer, without warrant on oath, was more aggravated than the issue of a search-warrant would have been, because it
was a mixture ofjudicial and executive functions derogatory from the
station of the judge, and dangerous to the personal rights of the
citizen."
The Senate, which at that time constitutedl a part of the
Court of Errors of the State, assented to the recomlmendation and removed the Recorder.
The especial value of this case consists in its being a comnplete answer to the advocates of the present Seizure Law. It
confirmns the position taken  in this pamphlet, that private
papers, not felon iously  acquired, can not be searched for
* Baker's Seward, vol. 2, p. 388.




46
and seized, for the _purpose of u.ging t/hem  against an accusedparty, whether clarged witll a criminal offense or of
one only of a penal llature.
Waivillg further discussion of the bearing upon tile Seizure Law of the constitutional provisions that property shall
not be taken except by " due process of law," and that no
" unreaonable" seizures shall be made, brief notice will be
given to that clause of the Constitution which requires tlhat
warrants sllall par'twlcttarly desciribe tile things to be seized.
The p1ractice in this city is to issue a warrant authorizing
tile seizure of all books of accoutant and papers relatin,y to
certain.?eceifed importations.  No further identification
of the books to be taken is given, than this general reference
to their connection withl certain invoices.  When the mnarslhal executes tile warrant, lie is in utter ignorance what
books alld papers relate to the sp)ecified invoice, and, nlot
knowing which to take, lie naturally errs in falvor of thle
Governmlent, and takes all.  In this way, it happens that a
warrant which calls for the books and papers relating, it
may be, to a single invoice, transfers fromn the counting-roomn
of the importer, to the office of the seizing official, every
book and paper connected with tile importer's business, anld
covering his entire mercantile transactions, as wTell as such
private transactions as chance to be recorded, or to be
found.  Whether a warrant; so worded as to result in such
a seizure, can be considered as "particularly describing"
the things to be seized, is, perhaps, as much a question of
common-sense as of law.  If such a warrant is authorized
by one of our statutes, there.is room to doubt whether this
is indeed a country of liberty.  If it is a land of liberty, we
must believe, with  Fitz-James Stephen, that liberty, in
itself; is neither good, nor bad, but indifferent, and that
nothing can be predicated of it before one knows what use
is going to be made of it.
Thus far these objections to the Seizure Law have mainly




47
had reference to its unconstitutionality.  Attempt has
been made to show that the law violates the Amendments
to tle Constitution, and is against the spirit and letter of
the Common Law. It debauches public morals, and unsettles the first principles of our jurisprudence. It destroys
the poise and restraint established by our organic law, and
teaches the incoming generation pernicious and destructivedoctrines as to the mneaning, and as to the limitations of
Constitutional Government.  History and authorities coinbine against it.  The Secretary of the Treasury himself
admits its unwisdomn, his letter of January 10th, to the Senate Committee on Commerce, containing the following:
"' Another measure which I deem of much importance,.
as affecting the administration of the Customs system, is an
amendment of the existing law  for seizing books and
papers. This law... being open to objection upon
constitutional grounds, should be so guarded as to avoid
any danger of its being oppressively used."
Senator Boutwell, when Secretary, urged in similar langlage, in a letter in 1871, to a Senate Committee, an amendment of the same Statute.
This law, however, has its friends and defenders, especially among those who share in the penalties, and, as the
argument here made against it may be denied, it is proper
to indicate in what respect the law should be armended, if it is impossible to obtain such a hearing as will insure
its total repeal.
The Law, as it now stands, authorizes the seizure of
books and papers upon an ex parte affidavit, made, as is
the custom in most cases, by the informer, or his representative. This party has a pecuniary interest in the result
of the seizure, amounting, under the law, to one quarter of
the amount recovered. Considering that interest, and the
moral turpitude of a man who is willing to become an informer, is it too much to believe that his affidavit may not




48
be llollestlv madce  If the seizure of the books discloses a
fraud, he realps a reward; if they disclose no fraud, his
name may never appear, and he is free from the possibility
of punishment. The affidavit itself is a statement not sworn
to upon positive knowledge, but simply upon infbrmation
and belief-a kind of affirmation which furnishes an outlet,
by enabling the affiant to fall 1back upon the irresponsibility and indefiniteness implied.  Ordinarily the affidavits
are made by what may be called the professional informer.
a party who represents the real informer, receiving from
him a part of the inlformer's moiety, and who swears to
whatever is told to him. It is not impossible that business
competitors or personal enemies, may, for the purpose of
crushing a rival, either stimulate an informer, by an adroit
manipulation of utterly false statements, or bribe him by
a cash payment or a guaranty of an informer's moiety.
If books are to be seized, the affidavit should be either made
or approved by a Revenue officer of the Government occupying a responsible position, and he should be held pecuniiarily responsible for its abuse.
There is no provision in the law as to what books shall
be taken.  As the law now reads, this can not, in the nature of things, be determined with precision. In a recent
case in Boston, Judge Lowell held that the law impliedly
justifies the seizing of the entire contents of the office, but
that an examination should be made, by other persons than
those designated to search for the alleged frauds, with a
view of determining what particular books relate to the
alleged frauds, and of returning to their owner all others.
In this city there is no such rule, and, with us, all the books
are taken and are turned over, for examination, to the
officers who originate the seizure, that is, to the Customs
Authorities, or to the Special Agents of the'Treasury
Department.
Books seized under the allegation of specific fraud, fre



49
quently reveal other frauds, in addition to those contained
in the affidavit.  In some cases, the original allegation is
found to be entirely groundless, but other and unsuspected
irregularities are disclosed by the books.  In these cases, it
is the custom to make tlhe same use of these fratuds and
ilregulaiities,   thus discovered, thiat would have I)eell lnade
of thlem lhad tlley been suspected and searched for irl the
first instance.  Upon trial, the fact tllat the Govellrlenlt
olb)tailed its knowledge by such disreputable mealls, can not
Ie introduced, the well-established rule of law beingc tliat
courts will not take notice how evideince is obtainel, wlletlher
lawfufllyld  or lunlawfully, nor will they formln an issue to determiei tllhat question.*  If amlonog the mass of papers seized,
tlhelre (ilallce to be any writings of a purely7pe~r,.onal nature,
disclosing secrets which, if known, might cast a stain upon
cllaracter, a skillful use may be nade of them to extort
tlhe penalty, ald enforce a settlement.
The present law is further deficient, in tlhat it fails to
desinlate the time within which the examination shall be
Inade.  Books are now examined at the convenience of the
Seizure Department, and are retained for an utteirly indfi'nite period.  During this time, tile alleged offender llas no
legal riglhts, with reference to his access to his own lbooks,
beiing thrown entirely upon the good-will of the officials.
In the experience of the writer, the government officials
act inl tlhis respect with uniform  courtesy; but it is, nevertlieless, humniliating to a citizen to rely upon charity wlhere
lie llas a constitutional righlt.  Whether there are losses,
mutilations, alterations, or suppressiolls, thle merchant has
no means of knowing. In this regard, lie is thrown entirely
upon thle hlonesty of the very men whose pecuniary interest
and official pride are enlisted against him.
So numnerous and so vital are the objections to this
* Green. on Evid. 1, ~ 254, a.
4




5(0
law, wise 1)b  accident and bad by designl, tllat it is with
difficulty  a single word call be said  in  its favor.   Certainly, ulpon tile general prirnciples involved in its enforcerient, a reflective mnind canl leachl but one conclusion, that
it savors of (lespotislll alld l)t of freedom, alid that nothing
C'aii inore forciblly  illustrate an ioft-reiterated salviig, uttered
ill tile first instance  )by so velleral)l  aml altlority as Aristotle, that tere are are nall  strikillg points of' reselnlance
betweenr   a TVra~nmny ad11  a itZepubllic.
The terrible posililities tllat Inmay arise, ald often do
arise, firoll tlle easy- ab)u-se of tllis law,  are ap)alling.  Conti(lelltial clerks illifrlll.lgnaillst tlleir emlployels, alid reap
the  ric] liiyolev  rewrdil   of  tile informlel'.   There  are
instances on1 recor( l  wllee elmploylees hlave purposely cominitted  mistakes, auid illteaitionally falsified  records, for
tlhe  deliberate  1)1ur pose of slll)jectiilg tleir empl)loyers to
penalties, in  wllichl  thley, as iiiforlllers, were  to  share.
Buyerls sent abroad b  illll)()ltillm ]hoses b)ecome tile paid
agents of professiolal iltorlners,   for wllom   they  collect
prices, price-lists, saillles, ald business secrets, for the
-urpose, it nmay be. of etrall)l)ilg thle very hloses they represeint.   Certain  Revelle  offices become  slops  W\llhere
b)etriaye(l  contfideiices  arle  l,,ulght,  and  some  officials
b)ecomre brokers il thle perfily of partneris and friends.  It
Inmay be sai(l, such experneesc. ai'c nl)ecessatril,? iticlde)-t to
tarifs!   To this it mlay be replied, that such experienlces
are  rendelred possil e nider tlme tariff laws as tlley now
exist; but tlhat tariffs, tile collectioni  of duties, and tile
rigllts of importers,  can all exist together iunlel poper
laws.  But 110o systemn slould  I)e tolerated that prepares the
way for arlbitrary seizures, by first inviting the formation
of corrupt conspiracies.  Ca1m  alny tlling tend more swiftly
to prostitute business, ald to debaucll public morals?
Into the limitation of thle period  vwithin which searchles
tf)r fraud nmay be Ia(le, it is ilot thle province of this dis



51
cussion to enter.  That limitation has been, at different
timles, respectively two years and three years, while now it
is five.  How  many importers can be found in whose
books, considering the present comnplexity of the Revenue
Laws, some mistake or irregularity, sufficient to subject
them to a charge of fraud, can nlot be found, going over
the full records of thlleir business for the period of five years?
Take the case of a consignee, for example, which is perhaps of mnore than ordinary llardship, under the limitation
now existing.  In his case, lie receives the goods in good
faith, with the charges that are sent to him by the consignor,
mlakes the necessary affidavits in fnll belief that lie is stating
the truth, pays the duties, receives his, goods, and puts them
upon the market, realizing as his compensation the small
percentage allowed him  by the consignor.  Within five
years afterward, his books and papers Inay be seized for
some trifling irregularity or tecllical violation of the law
with reference to  some other matter, and  the skilled
examiner at thle Customl Holuse Ilay discover, with reference
to the old consign ment, some flaw which  nlay subject himn
to the paymeut of a penalty thlat lnay cause hlis financial
ruin, especially if. during these years, the consignor has
become hillself irresponsible, anld the consignee canl not
look to him  to be reimbursed.  Such an instance as this
may arise even where the coinsignee acts in the most perfect
(rood faith, froln tile fact, as has been already set forth,
that the Revelnue Laws abounld inl such complexities as reilder theim ofteintinmes a trap to tlme best-intentioned iimporter.
Considering that the Goverllllnellt has the goods in its own,
hands, and practically in its owun possession, when they ai'<
lan<led, and tliat it has anl extralordinary force of employees,
eacll skilled in his own specialty, to take chlarge of, inspect,
and appraise the goods, anld that it undertakes, then an(d
there, to say to tile importer what shall be his duties, and
does not release his goods until those duties are paid, does




52
it not seem needlessly oppressive to reserve to itselffive yea.,rs
within which to correct errors which, in most cases, it should
hacve discovered at the time, and to call upon the importer
for a penalty for a breach of the law, which should have
been pointed out to him  at the date of the importation?
If such fearful penalties, as are now imposed, are to follow
technical infractions of the law, the limit within which
the importer.may be subject to them should be reduced.
The subject of moieties is also hardly pertinent to this
discussion, and little, therefore, will be advanced with reference to that system, further than the following extract from
the report, for the year 1869, of the Honorable Hugh McClullough, then Secretary of the Treasury. With reference to
the shares in penalties distributed among the Revenue officers
and the informner,the Secretary expressed himself as follows:'The reason on which the laws granting such allowances
are based, is that officers of the Government are stimulated
to greater activity in the discovery of fiauds, and in bringing offenders to punishment.  There can be no doubt that
such is the effect of the policy, but the experience I have
had in the Treasury l)ep artment has convinced me that the
evils attending the system are greater than the benefits derivedfrom it.  It often occurs that Revenue officers are led
to assert claims, in behalf of the Government, which have
no just foundation in law, or in the facts of the respective
cases; and, where real claims exist, it is:often the object of
the informers and officers, who share in the penalties, to
misrepresent the case to the Department, so as to secure the
greatest advantage to themselves. But a more serious evil
is found in the practice, quite general, of allowing persons
to pursue afraudulent course until a result is reached which
will inure to the benefit of the officers and informers, instead of checkinyg criminal practices at the outset.
Upon this same subject, The Honorable George S. Bout



53
well, when Secretary of the Treasury, in his report for the
year 1871, remarked:
"It is my duty to call the attention of Congress to the
importance of abolishing the system of shares and moieties
as far as the benefits inure to Revenue officers and other
persons officially counnected with the Government.
In most of the cases, the officers do not perform  special
services entitling them to the amounts granted, and importers and others, whose acts are made the subject of investigation, complain, and I think with just reason, that the
agents of the Government have a pecuniary interest in pursuing those charged with violations of the law.
One of the difficulties which the Department has to Ineet,
frequently is, that the Customs officers have an interest in
the proceedings for the discovery of fraud, the settlement
of cases, or in the prosecution of them, whbich is di/Jerent
from  the real in)terest qf the Governmenet, and, as a necessary result, the conduct of suelh officers is open to suspicion,
both on the part of those who are pursued by them, and
the Government they ostensibly represent."
The present Secretary, in a communication just published,
says: " While I am prepared to accede to the general principle
of the present bill, by the abolition of all movieties, except inll
the case of smuggling, actual or attemnpted, I am of opinion
that there should be some inducement for the exposure of
offenses more complicated in their nature, and hence more
difficult to trace.  I would, therefore, recommend that provision be made for a special fund, to be exclusively used,
under suitable restrictions, for the compensation of private
persons who may enable the Government to detect and
punish frauds that would otherwise, in all probability, reumain undiscovered."
In the Majority Report of the Senate Committee oni
Retrenchment, submitted June 4th, 1872, there occurs the
following language bearing on this point:




34
"Moieties should not be allowed to officers of thle Customs, except in thle case of smuggled goods seized.  It is the
duty of these officers to assess and collect the duties on
imports. It is their business not to permnit any frauds ul)ol
the Revenue.  Attempts will be made to introduce merchandise  upon our markets without payment of duty at all.
Whoever defeats an attempt at snmuggling should be allowed at least one half the net proceeds of thle goods condemned.  IBut when goods are entered at the CustomHolrse, thlere should be no cheatingc in qtuantities ol' values.
It is thle duty of the officers of the Custolrs to prexvent that.
Their salaries thould be adequate to all the labor they performll all a1l the responsibility thley assume.  Still, in spite
of d(ilgeice and fidelity, they will be sometines circurnvented.  But the Govermnent should not bribe them to be
defrauded by holding up to them  great fortunes for detecting thle fraud. Tl e h/sbandlmaz   who pays his hairavester
Ca  eag/i're salary for yCthein- y   gracaiin, 7&bat ofters him ot ne
hac,f for ygleaning call that his own rcake pas'ses overi,,shoutld:ot be s'arpr.ised to leacrn that his servan-t rakes slfoverly."
The Minority Report of the same conmmittee is full and
forcible, both as to moieties anld to the other subjects herein
discussed.@
The Foreign Trade has peculiar uncertainties.   The
market, as well as governmental interference in the way of'
dluties, must be anticipated; the extent of trade and thle
cllhanges of fashion must be foreseen; and the (langers incident to vast distances, long delays in transportationl, and
oceanl-carriage, must be provided against.  Thlis Tradcce
enuploys enormous capital, takes great risks, and waits
long for its returns: it is tile nmost reliable sourllce of plublie Revenue, opens a market for our products, and lmakes
* 42d Congress, Senate, 2d Session. Report No. 227. June 4th,
1872.




55
the sigllt of our flag, and the names of oulr lerchanlts falliliar in every port.  In a  lighller senlse, our foreign traffic is a, peace-maker, and binds nations to us by  tlhe
(goldenl bainds of colnmmere.  Is it wiser to  crushl than
to foster tllis great iiuterest?   Shall opprlessive laws and
coriirupt comb)i lnatiosll  continue to drive outt charlacter and
initegrity   In alditionl to the inherent uncertainties and
tile lultabilit'  of tariffs, sliall tie terrible pI,ssil)ilities of
tlhese seizures an(d penalties be perpetuated?
It is anlr ulnt-lwise statesilalshlip thlat thus o)verloadI. s and11(1
ibreaks (lowvil evell a single interest of thie State.   Whell
(,lie souirce of lro(sl)erity is chilled, the entire systeln sylml)athlizes. "' Tlle wllhole liatioin,"  says De TLolie,  " forthnS, as it
were, olle continued irritable body, no part of whliclt can be
toucll1ed without exciting all universal. tremor."
AM/aiy tliouglhtful and patriotic  Inel sincerely  believe
tlhat tile loical and  inevitable  result of the  present
Seizilre Iaw, coupled with  the uncertainties connected
\vitll illportatiols, will drive firom  the business the most
reputable of our merclants.   Many believe  that legisiation hlas already swept Amlerican shipping from  the
seas, and a still larger number predict that the present laws
wrill sweep American merchants fiolm our ports.  The trutll
is, Commnelce is a larger fact tlhan Revenue, and a sense of
freedom is essential to the largest prosperity.  When trade
is shullt ill and overlaid with  apprehension, and honest
mnerchEants are liable to be thrust, on technical grounds,
into thle category of those who would be excluded from
thleir co:mp)any by the lawr of hon1or, tile large possibilities
of collmlerce are defeated, and tile first step is taken in the
backlward nlarchl of trade.  Under such laws, our share of
tlhe trade of tlhe world will be lessened until it consists
olly of what we consume, and our ports will shrivel into
insignificance compared withl the great marts where comI'nerce is unfettered.