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even in England, and grew out of an arbitrary abuse of power in that country, in issuing, under a statute authorizing it, what was called writs of assistance, by the courts, to revenue, and other officers, empowering them at their discretion, to search suspected places for smuggled goods. This, was in that day, pronounced "the worst instrument of arbitrary power; the most destructive of English liberty, and of the fundamental principles of law, that ever was found in an English law book; since they placed the liberty of every man in the hands of every petty officer." "This constitutional provision, seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property." a Its introduction into the amendments to the constitution, was doubtless, occasioned by the great sensation excited in England, as well as in this country, down to the time of the revolution, upon acts of arbitrary power, exercised under this pretence of law based upon this statute, enacted under the pretence of regulating the press, which authorized the issuing of warrants, to take up, without naming any person in particular, the authors, publishers, and printers of such obscene, or seditious libels, as were particularly mentioned in the warrant. Though this statute was limited in its time of duration; the practice afterwards continued for a period of seventy years, and down to the year 1763; and was followed in practice even in this country. Its legality was then tested in England in the Courts of King's Bench, where it was solemnly declared, that such warrants were void for uncertainty. b It may now be regarded as settled common law, that a warrant, and the complaint upon which it is founded, to be legal, must not only state the name of the party, but also, the time and place, and the nature of the offence, with reasonable certainty, and in New York it is regulated by statutes. c
In the administration of preventive justice, even at common law, it is believed, that in this country, the following rules are of universal adoption, as law, and are held to be the right of every citizen to have kept sacred, viz: That some probable ground of suspicion must be presented to a magistrate possessing judicial authority, a 2 Story on Const. § 1902.
bMoney v. Leach, Burr. 1767.
1 Rev. Stat. 93, § 11; Id. 125, § 66, (54); 3 Rev. Stat. 746, §§ 32 to 36.
to issue the writ; that it be supported by oath or affirmation'; that the party charged be allowed to find reasonable, and not oppressive bail to answer, to avoid being thrown into prison; that he have the benefit of the writ of habeas corpus, and thus obtain his release if wrongfully confined; and that he may be restored to his former liberty and rights, in order to prepare for a judicial examination of his case by a day in court.
"A statute which should permit the breaking and entering of a man's house, and the examination of books and papers with a view to discover the evidence of crime, might possibly not be void, on constitutional grounds in some cases, as for instance, books and papers of a public character, retained from their lawful custody; for females, supposed to be confined in houses of ill fame; for children, enticed or kept away from parents and guardians; and for counterfeit money, forged bills and the like; but the power of the legislature to authorize a resort to this process, is one that can be properly exercised only in extreme cases, and it is sometimes better, even that crime should go unpunished, than that the citizen should be liable to have his premises invaded; his trunks broken open; his private books, letters and papers exposed to the prying curiosity, and the misconstructions of ignorant and suspicious persons, and this, under the direction of a mere ministerial officer who brings with him such assistants as he pleases, and who will be more likely to select them with reference to physical strength and courage, than to their sensitive regard to the rights and feelings of others. To incline against such laws, is to incline on the side of safety." a
"Instances sometimes occur, in which ministerial officers take such liberties in endeavoring to discover and punish offenders, as are even more criminal, than the offences they seek to punish. The employment of spies and decoys to lead men on to the commission of crime, on the pretence of bringing criminals to justice, cannot be too often or too strongly condemned; and the prying into private correspondence, by officers, which has sometimes been permitted by postmasters, is directly in the face of the law, and utterly unjustifiable. The importance of public confidence in the inviolability of correspondence through the post office, cannot well be a Cooley on Const. Limitations, 306.
overrated; and the proposition to permit letters to be opened at the discretion of a ministerial officer, would be met with general indignation. The same may be said of private correspondence by telegraph; the public are not entitled to it for any purpose; and a man's servants, with the same propriety, may be subponed to bring into court his private letters and journals, or a telegraph operator to bring in his private correspondence. In either case, it would be equivalent to an unlawful and unjustifiable seizure of his papers-such an "unreasonable seizure" as is directly condemned by the constitution." a
"They are obnoxious in principle, necessarily odious in the method of execution; and tend to invite abuse and to cover the commission of crime. We think it would generally be safe for the legislature to regard all those "searches and seizures unreasonable" which have hitherto been known to the law, and on that ground to abstain from authorizing them, leaving the parties and the public to the accustomed remedies."
While we regard these views of the learned author as worthy of the highest consideration, and in the main sound and judicious, as well as happily expressed; we are compelled to admit, that there are two sides to this question. In these modern days, when villainy is calling to its aid the highest and chiefest experts in science; when intellect and skill can receive the highest reward in criminal employments; the sound old maxim salus populi suprema lex, must be called into application, to defend the public, and aid to secure its safety. There is the known, and generally well understood implied assent on the part of every member of society, that his own individual welfare, his property, liberty, and even his life, shall, under circumstances of emergency, or extreme necessity, be yielded to the public safety, or the public good; that private inconvenience and even mischief, shall be endured rather than great public inconvenience. This is based on the very nature of the social compact, and upon which all municipal law is founded, that even individual liberty is given up to insure the safety and well being of the public.
a Id. 307.
Little need be said upon this constitutional security to the citizen, other than to refer to the provision in both national and state constitutions, in relation to it. No person shall be held to answer for a capital or otherwise infamous crime, unless upon the presentment or indictment of a grand jury. The statutes of the state have regulated the mode of their selection, and have secured to the citizen, the benefit of a high class and character of citizens to compose this body, who, before they enter upon the performance of their duties, are required to be sworn and charged in relation to their duties, by the judge who presides at the court to which they are summoned. There is a minor class of offences called misdemeanors, which the statutes provide may be tried in the inferior courts without indictment. The only other exceptions are those mentioned in the constitution, when the citizen belongs to the land or naval forces, or in the militia in time of war, when in actual service or in time of danger. He is secured a speedy trial, or, in a case less than capital, if necessity require it, to be bailed out, by reasonable, and not oppressive bail, to enable him within reasonable time to prepare for his defence; he is allowed a public trial, surrounded by the safeguard of a judge to pronounce the law; he shall previously, be fully, publicly informed of the nature of his offence or accusation; he shall have the assistance of counsel to aid him in his defence; he is entitled to compulsory process to compel the attendance of witnesses; he is entitled to challenge his jurors, and have them tried as to their peculiarities or prejudices, and in this state, is entitled to peremptory challenge of twenty jurors, on the trial of a capital offence, or for an offence punishable in the state prison for ten years or longer; and for lower offences, to a peremptory challenge of five jurors; a he is entitled to be confronted with his witnesses, in the presence of the jury and the court, and he is not compelled to be a witness to testify against himself.
In no other country, and under no other government in the world, is the citizen, who is charged with an offence, so surrounded with substantial safeguards and securities. These are the outlines; the details, which belong to the subject of practice, are equally protective and liberal towards the accused. But beyond these is the still
a 2 Rev. Stat. 734, §§ 9, 10.
further security that he shall not be twice put in jeopardy by a trial, for the same offence.
The right, as well as the mode of traverse by a jury of twelve men, is an essential and inestimable security to the accused. This is what is called a common law jury; and he cannot be deprived of that number to sit in his case; even a consent by him to be tried by a less number, would be mistrial and void, a because it would be a tribunal unknown to the law and constitution, one created by the parties. He is also entitled by the constitution to have his trial not among strangers, or in a distant or strange neighborhood, but in his own vicinage in the district in which the offence is charged to have been committed, and in a district previously fixed by law. Thus, he is secured a trial where he is known; where he has the benefit of his own character and standing among his neighbors; with witnesses near home; and by jurors who may know not only his character, but that of the witnesses who testify on the trial. He has the benefit of the varieties of opinions of twelve independent men, each entitled to his own way of weighing and appreciating facts as well as witmesses, and he cannot be convicted, except by the unanimous verdict of the twelve jurors.
This is an advantage which can only be appreciated by those who are familliar with the practical workings of the system of jury trials in criminal cases. Jurors of equal intelligence, of equal integrity and conscientiousness, draw different conclusions from the same case. This idea was well expressed by Sir John Vaughn, Kt., Chief Justice of the Common Pleas of England, in a case where there was an attempt to punish a jury for corruptly disagreeing in a case submitted to them. b "I would like to know," said the Chief Justice, "whether anything be more common, than for two men, students, barristers, or judges, to deduce contrary and opposite conclusions out of the same case in law? And is there any difference that two men should infer distinct conclusions from the same testimony? Is anything more known, than that the same author, and place in that author, is forcibly urged to maintain contrary conclusions, and the decisions held, which is in the right? Is anything more frequent, in the controversies of religion, than to
a Cancemi v. The People, 18 N. Y. 128.
b Vaughn R. 141; Bushnell's Case.