A Man’s House is His Castle: Historic Development

  • Mines
The times they are a-changin’.

This post seems to be older than 15 years—a long time on the internet. It might be outdated.

…continued from A Man’s House is His Castle: Introduction.

Historic Development
After the United States Constitution was ratified in 1788, a series of amendments were proposed and passed. The fourth of these amendments reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized1.

The Framers wrote the Fourth Amendment in response to both “English and American experiences of virtually unrestrained and judicially unsupervised searches”2 carried out by the British government. Indeed, the British government had not always had such a liberal display of search and seizure. The movement toward expanded powers began with the Tudor dynasty.

During the Tudor dynasty, which lasted from 1485 until 16033, the state licensed the production of printed matter to control the “seditious and nonconformist publications [that] had become a matter of intense state concern.”4 In order to suppress the undesirable publications, the Worshipful Company of Stationers and Newspaper Makers (more commonly called the Stationers’ Company)5 was “instructed ‘to make search wherever it shall please them in any place…within our kingdom of England…and to seize, take hold, burn…those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation…’.”6 In exchange for performing this duty, the Stationers’ Company was granted a monopoly over the production of all printed material. However, the British government’s search and seizure power was not done expanding.

During the reign of James II, the Townshend Acts of 1767 were passed which “placed a tax on common products imported into the American Colonies, such as lead, paper, paint, glass, and tea.”7 It was not the tax that was most problematic, but rather the fact that the Act legalized writs of assistance – generally issued and open-ended search warrants that required all parties to help in its execution8. The writs of assistance, which only expired six months after the death of the issuing king, were issued to government officials and allowed them to search anyone or anywhere they pleased. Ergo, the desire and need for limits on search and seizures was born.

On October 26, 1774 “the Continental Congress petitioned the King…for a redress of grievances, and among those listed was the abuse of the search power: ‘The officers of the customs are empowered to break open and enter houses, without the authority of any civil magistrate, founded on legal information.'”9 This grievance is similarly alluded to in the Declaration of Independence, “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”1011

Around the same time that the Declaration of Independence was adopted, Virginia was already moving to ensure that unencumbered search and seizure powers would never be brought forth again. Article X of Virginia’s Declaration of Rights:

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted12.

Virginia’s Article was the first “provision in any American constitution” that sought to limit the power of searches and seizures13. However, unscrupulous officials could easily take advantage of several gaping holes in Virginia’s Article, primarily, the clause that states warrants “ought not to be granted” but does not outright prohibit them14. In short, Virginia’s search and seizure Article is merely a suggestion.

Virginia diligently campaigned for inclusion of a similar article in the United States Constitution; however, Virginia eventually ratified the United States Constitution without such an article and instead pushed to have an even broader provision included in the Bill of Rights15.

Continued tomorrow with Interpretation of the Fourth Amendment…

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  1. Constitution of the United States, Fourth Amendment. ↩

  2. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 774 ↩

  3. Tudor dynasty. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 14, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Tudor_dynasty. ↩

  4. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 774 ↩

  5. Worshipful Company of Stationers and Newspaper Makers. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., March 39, 2008. [Cited: April 2008, 17.] http://en.wikipedia.org/wiki/Worshipful_Company_of_Stationers_and_Newspaper_Makers. ↩

  6. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 774 ↩

  7. Townshend Acts. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 17, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Townshend_Act. ↩

  8. Writ of Assistance. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 10, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Writs_of_Assistance. ↩

  9. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 778 ↩

  10. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 778 ↩

  11. United States Declaration of Independence. ↩

  12. Virginia Declaration of Rights. Wikipedia, the free encyclopedia. [Online] Wikimedia Foundation, Inc., April 2, 2008. [Cited: April 17, 2008.] http://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights. ↩

  13. Levy, Leonard W. Seasoned Judgments: The American Constitution, Rights, and History. New
    Brunswick : Transaction Publishers, 1995. 1-56000-170-4. p. 162 ↩

  14. Levy, Leonard W. Seasoned Judgments: The American Constitution, Rights, and History. New Brunswick : Transaction Publishers, 1995. 1-56000-170-4. p. 161 ↩

  15. Cohen, William and Danelski, David J. Constitutional Law: Civil Liberty and Individual Rights. New York : Foundation Press, 2002. 1-58778-075-5. p. 778 ↩

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