“The great end for which men entered in society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole . . . By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be nothing.”[1]—Charles Pratt, 1st Earl Camden
The right to privacy has one of the longest and richest legal and philosophical traditions of any provision anywhere in the United States Constitution. We find the right to privacy writ large in English constitutional law beginning with the Charter of Liberties (also called the Coronation Charter) issued in 1100 A.D. by Royal proclamation of King Henry I; wherein the right to privacy became a fundamental and cherished cornerstone of English liberty for the next seven centuries before it was ultimately to be adopted as the fundamental common law right at the heart of the Constitution’s fourth amendment in 1791.
The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Moreover, you would be hard pressed to find any other aspect of the bill of rights that is so intimately correlated with the experiences of the founders in the period that impelled the American colonies towards separation from Great Britain.
The common law protection against unreasonable search and seizure is more than an interesting historical anecdote. This history can help dispel a misunderstanding about the fourth amendment, caused by an inclination to define the rights of U.S. citizens as merely “constitutional rights,” as though they were first articulated in 1791.
This has led to a modern notion of fourth amendment jurisprudence that tends to be seen as a protection against overzealous police power, defined strictly through legal tests of substantive due process and procedural law; it is easy to see its applicability as being dependent upon judicial predilection.
The true purpose of the amendment is to restrict government power and reinforce the right of the people as the sovereign to determine the conditions under which the government could interfere in the privacies of life. So the proper way to understand the fourth amendment is first as a prohibition on promiscuous search and seizure and as a requirement for specificity in the warrants that are then granted.
Seventeenth and eighteenth century common law took the position that outside some very narrow circumstances, namely the hue and cry and the fleeing felon exceptions, the government could not enter into any home without a warrant, which put pressure on the crown to issue very broad warrants without specificity. This was especially true for the issuance of what are known as general warrants. General warrants are an instrument issued by the court or the executive branch which gives officials the authority to enter into a home or to search for private documents, or to seize them without prior evidence of wrongdoing, and without specificity or particularity of the place to be searched and the persons or papers to be seized. It is not supported by oath or affirmation and amounts to a fishing expedition to find evidence of wrongdoing. So for centuries prior to the American founding, English jurists rejected general warrants as the worst exercise of tyrannical power on the part of any government.
Surprisingly, the first statement of freedom from unreasonable search and seizure to appear in the colonies, outside any existing common law context, was relatively late. It first appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, which Samuel Adams took the lead in drafting.
But there was a long-established understanding of these rights throughout the colonies adopted from the rich and ancient protections in the English Common Law. Several landmark “search and seizure” cases came from the common law and were essential to the development of this doctrine as adopted by American Courts—particularly Semayne’s Case (1604), Wilkes v. Wood (1763) and Entick v. Carrington (1765). There was also one example of a common law case that took place in the United States called “The Writs of Assistance case” (also known as Paxton’s Case) in 1761 which marked a pivotal event in the earliest fomenting of the spirit of rebellion that would blossom into the American Revolution.
Semayne’s Case is a common law case which held that a right of a home-owner to defend his or her premises against intrusion should yield to those seeking to enter under lawful authority like to make an arrest. It was demonstrative of an early seventeenth century civil case involving execution of process. The case was reported by Sir Edward Coke while serving as Attorney General of England in 1604. The case is famous for Coke’s quote that: “The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.”[2]
Later, this same sentiment was expressed in much stronger terms by William Pitt:
The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.[3]
In Semayne’s Case, the Court of Common Pleas recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process.
Coke argued that general warrants were outside the common law because they retained for the crown the particulars of suspicion and by using general warrants the crown did not have to provide evidence in open court, so the issue went to rule of law as a constraint on government power.
In the U.S., Semayne’s Case is recognized as establishing the knock and announce rule.
The next two cases, Wilkes v. Woods and Entick v. Carrington, are the consequence of a single event. The cases involved Wilkes and Entick, two pamphleteers who had been accused of seditious libel. They had criticized the ministers of the king and thus the king himself. Therefore, warrants of the search were issued by the king’s agents, and the pamphleteers’ homes were ransacked. During the search, all their papers and books were seized. Because British constitutional law lacked an Exclusionary Rule, the pair sued for damages that resulted from the search and for void warrants they claimed were illegal.
Wilkes v Wood (1763)[4] established the principle that general warrants are normally illegal. Government cannot simply give the police the authority to search a person’s possessions in hopes of finding incriminating evidence. The warrant must specify what government authorities believe they will find and where. The remedy Wilkes obtained was substantial monetary damages.
The decision in Wilkes was reaffirmed two years later in the case of Money v Leach (1765)[5]. Here too, the court held that a general warrant to seize some person not named is illegal.
Entick v. Carrington (1765)[6] was the most famous of the common law search and seizure cases. Entick also pursued a civil action against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes’ polemical pamphlets. Entick sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like.
In an opinion, sweeping in its terms, the court declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.” Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington has been cited by the U.S. Supreme Court as a “great judgment,” “one of the landmarks of English liberty,” “one of the permanent monuments of the British Constitution,” and as a guide to an understanding of what the Framers meant in writing the Fourth Amendment.[7]
Entick was a landmark case for the establishment of civil liberties of individuals and of limiting the scope of executive power. It is famous for the dictum of Lord Camden: “If it is law, it will be found in our books. If it not to be found there, it is not law.”
In Entick, the Judges further rejected the crown’s efforts to use general warrants. As Charles Pratt, 1st Earl of Camden and Chief Justice of the Court of Common Pleas explained, “The law denied the crown the authority to enter its subject’s domiciles at will. Every invasion of private property, be it ever so minute, is yet a trespass.” This protection extended to letters, documents and papers of individuals. Every man was entitled to live free from the gaze of the crown.
These concepts have been reinforced in Sir Matthew Hale’s treatise Historia Placitorum Coronæ (1736) and William Blackstone’s Commentaries on the Common Laws of England (1765).
Finally, in 1761, The Writs of Assistance Case[8] made the career of a proto-revolutionary firebrand, James Otis following an epic five hour oration he gave on behalf of a conglomeration of Boston merchants bringing suit against the use of general warrants. Otis had been an advocate general in the vice-admiralty court until the crown issued the writs of assistance. This caused Otis to resign his post in protest, subsequently allowing him to represent Boston merchants in their efforts to stop the application of the Writs of Assistance.
Otis argued the ability of the crown to issue general warrants, putting them beyond Parliament’s powers, were thus equated to a violation of English liberties. A young, largely unknown lawyer who was there in the Court to witness this legendary oration would go onto cite Otis’s performance as the moment at which “the child’s independence was then and there born.”[9] That young lawyer was the future revolutionary John Adams.
The central issue in Paxton involved resistance to abridgements of the common law right that protected against unreasonable searches and seizures. This is the reason James Otis is credited as being “The father of the fourth amendment.”
Otis explained that the colonists, upon leaving England, expected their rights as Englishmen to follow with them. But their rights had not, and the writs of assistance proliferated. James Otis referred to them as the worst exercise of arbitrary power and the most destructive of English liberty that ever was found in an English law book.[10]
At the base of the argument against general warrants was the need to restrain that government power. So when Virginia, Pennsylvania, Delaware, Maryland, and North Carolina crafted their state constitutions, all of them outlawed general warrants. So too did the founding generation insist that there be a prohibition on general warrants. This included everything outside of particularized warrants issued within the scope of the fourth amendment’s provisions, as well as the fleeing felon in flight or hue and cry exceptions recognized at common law; the government historically could not enter your home or obtain your private papers. This means that the original understanding of the fourth amendment is not, as is widely considered today, an obstacle to prevent too much permeating police power of surveillance. It is a restriction on government power and it forbids access to the intimate details outside these constitutional structures. Something worth noting is that at the time of the Republic’s founding the original understanding of the term “reasonable” was understood to mean the reason of the common law, and unreasonable was that which went against the reason of the common law. General warrants clearly went against the reason of the common law.
This was embodied in the words of George Mason: “We claim nothing but the liberty and privileges of Englishmen in the same degree, as if we had continued among our brethren in Great Britain.”[11]
In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce revenue laws, English authorities made use of writs of assistance, to search for and seize “prohibited and uncustomed” goods, and to command all subjects to assist in these endeavors. Otis asserted that the authorizing statutes were invalid because they conflicted with English constitutionalism. Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review:
At a time when the finest writers of the most polite nations on the continent of Europe, are enraptured with the beauties of the civil constitution of Great-Britain; and envy her, no less for the freedom of her sons, than for her immense wealth and military glory. But let the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi supreme lex esto, is of the law of nature, and part of that grand charter given the human race, though too many of them are afraid to assert it.[12]
In this one pregnant phrase from the 1764 treatise The Rights of British Colonies, Otis reasserted and justified the right to privacy as a central right of the English common law.
[1]Hugh Chisholm, ed., “Camden, Charles Pratt, 1st Earl,” Encyclopædia Britannica 11th ed. (New York: Cambridge University Press, 1911), 5:100.
[2]Sir Edward Coke, Selected Writings of Sir Edward Coke (Indianapolis: Liberty Fund, 2005), 1:136.
[3]Baron Henry Brougham, ed., Historical sketches of statesmen who flourished in the time of George III (London: R. Griffin, 1855), 1:42.
[4]Philip B. Kurland and Ralph Lerner, ed., The Founders’ Constitution (Indianapolis: Liberty Fund, 2001), 5:250-251.
[7]Morrison Waite, Boyd v. United States,116 U.S. 616 (New York: Library of Congress, 1886), 626.
[8]Kurland, Lerner, The Founders’ Constitution, 5:222-230.
[9]Robert J. Taylor, ed., The Adams Papers, vol. 2, December 1773 – April 1775 (Cambridge, MA: Harvard University Press, 1977), 104–105.
[10]Kurland, Lerner, The Founders’ Constitution, 5:222-230.
[11]Bernard Bailyn and James Morton Smith, ed., The Papers of George Mason (Chapel Hill: The University of North Carolina Press, 1970), 1:65-72.
[12]Bruce Frohnen, ed., The American Republic: Primary Sources (Indianapolis: Liberty Fund, 2002), 119-134.
I have not read it in many years, but it seems to me that most if not all of the language of the Fourth Amendment first appeared in Parliament’s epic English Bill of Rights, signed into law by William & Mary in 1689. Why was this hugely important document not mentioned in this otherwise wide-ranging essay?
Nothing in the English Bill of rights of 1689 was new or novel to the Common Law. That instrument was a restatement of already established rights and liberties that the Stuart Kings had infringed & William & Mary had conversely swore to uphold