The framer's intent: John Adams, his era, and the fourth amendment

Indiana Law Journal

Volumn 86, Issue 3, 2011, Pages 979-1061

  Clancy, Thomas K ^a  

^a UNIVERSITY OF MISSISSIPPI   (United States)

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EID: 79959247033     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (711)

1. E.g., Stanford v. Texas, 379 U.S. 476, 482 (1965) ("[T]he Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance.. .. "); Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation, in 84 The Johns Hopkins University Studies in Historical and Political Science 1, 19 (1966) (explaining that the Fourth Amendment was "the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England").
2. See, e.g., Oliver v. United States, 466 U.S. 170, 176-82 (1984);
3. Chimel v. California, 395 U.S. 752, 760-61 (1969);
4. Stanford, 379 U.S. at 481-85;
5. Marcus v. Search Warrant of Prop, 367 U.S. 717, 729 (1961);
6. Henry v. United States, 361 U.S. 98, 100-01 (1959);
7. Harris v. United States, 331 U.S. 145, 157-62 (1947) (Frankfurter, J, dissenting);
8. United States v. Lefkowitz, 285 U.S. 452,466-67 (1932);
9. Carroll v. United States, 267 U.S. 132, 149-50 (1925);
10. Weeks v. United States, 232 U.S. 383, 389-91 (1914);
11. Boyd v. United States, 116 U.S. 616, 623-30 (1886);
12. see also Richard M. Leagre, The Fourth Amendment and the Law of Arrest, 54 J. crim. L, criminology & police sci. 393, 396 (1963) ("[Judicial] opinions are replete with reliance upon history.").
13. E.g., Telford Taylor, Two Studies in Constitutional Interpretation 23-50 (1969);
14. Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution, in 55 The john hopkins university studies in historical and Political Science 211,223-88 (1937).
15. See infra notes 81-121 and accompanying text.
16. See infra notes 152-91 and accompanying text.
17. See infra notes 322-30 and accompanying text.
18. In Adams's draft, the search and seizure provision was numbered Article 15 but became Article 14 when adopted. See 4 The Works of John Adams 226 (Charles Francis Adams ed, 1851). For convenience, it is referred to throughout this Article as Article 14.
19. See infra notes 338-93 and accompanying text.
20. See infra notes 352-93 and accompanying text.
21. The Fourth Amendment was originally numbered the sixth amendment when sent to the states for ratification. Two of the proposed amendments were not ratified, resulting in it being renumbered the fourth. For convenience, it is referred to throughout this Article as the Fourth Amendment, even in the drafting and pre-ratification stages.
22. U.S. Const, amend IV.
23. E.g., Atwater v. City of Lago Vista, 532 U.S. 318, 346 n.14 (2001) (asserting that if a practice was established when the Fourth Amendment was adopted, a person challenging that practice as now constitutionally impermissible would bear a '"heavy burden' of justifying a departure from the historical understanding" (quoting Tennessee v. Garner, 471 U.S. 1,26 (1985) (O'Connor, J., dissenting))).
24. Lasson, supra note 3.
25. Landynski, supra note 1.
26. William John Cuddihy, The Fourth Amendment: Origins and Original Meaning (2009).
27. Landynski, supra note 1, at 43 (alteration in original) (emphasis in original); see also Cuddihy, supra note 15, at 739-82 (drawing multiple conclusions about the scope and meaning of the amendment from a comprehensive treatment of history and disparaging the Amar and Davies paradigms); Lasson, supra note 3, at 103 (the phrase "unreasonable searches" and seizures was "intended .. to cover something other than the form of the warrant").
28. Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009) (quoting Katz v. United States, 389 U.S. 347,357(1967)).
29. Taylor, supra note 3. Taylor's book has been repeatedly cited by the Supreme Court. See, e.g., Virginia v. Moore, 553 U.S. 164,169 (2008);
30. Atwater v. City of Lago Vista, 532 U.S. 318, 336 (2001);
31. Brower v. County of Inyo, 489 U.S. 593, 596 (1989).
32. A standardless reasonableness test predates Taylor's book. E.g., United States v. Rabinowitz, 339 U.S. 56,61-63 (1950). But Taylor's work gave that test a plausible historical basis.
33. Taylor, supra note 3, at 43.
34. Id.
35. Id. at 46-47.
36. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994) [hereinafter Amar, First Principles].
37. E.g., Moore, 553 U.S. at 170; Atwater, 532 U.S. at 332 n.6.
38. See, e.g., Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999) [hereinafter Davies, Original Fourth Amendment];
39. Tracey Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S. cal. L. Rev. 1 (1994);
40. Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820 (1994). The historical summary contained in my treatise and my other writings is consistent with the conventional account but my conclusions do not fit within either of the two opposing camps.
41. Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation, at ch. 2 (2008).
42. Neither do the views of some other contemporary scholars. E.g., George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1478 (2005) (asserting that four principles emerge from the historical record: 1) the framers feared that governmental actors would abuse their offices; 2) "the Framers believed that searches (other than routine customs inspections) required individualized cause or suspicion"; 3) searches of structures required a warrant; and 4) the framers embraced some common law principles to regulate searches and seizures).
43. Amar, First Principles, supra note 22, at 757 n.*.
44. Id. at 774.
45. Id. at 758-59.
46. Id. at 759.
47. See id. at 804-11.
48. Davies, Original Fourth Amendment, supra note 24;
49. see also Thomas Y. Davies, Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of "Due Process of Law," 77 Miss. L.J. 1 (2007).
50. Davies, Original Fourth Amendment, supra note 24, at 551 ("[T]he evidence indicates that the Framers understood 'unreasonable searches and seizures' simply as a pejorative label for the inherent illegality of any searches and seizures that might be made under general warrants. In other words, the Framers did not address warrantless intrusions at all in the Fourth Amendment."). But see id. at 570 n.43 (asserting that the framers believed that individualized suspicion was an inherent aspect of reasonableness).
51. Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 J. const. L. 1,4 (2007).
52. Davies, Original Fourth Amendment, supra note 24, at 736.
53. See In re Jackson, 96 U.S. 727, 733 (1878) (asserting that a warrant based on probable cause was necessary to search a letter in the mail);
54. Weeks v. United States, 232 U.S. 383, 393 (1914) ("The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution.");
55. Amos v. United States, 255 U.S. 313, 315-17 (1921) (cannot search a house without a warrant);
56. Agnello v. United States, 269 U.S. 20, 32 (1925) ("While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant... .");
57. Taylor v. United States, 286 U.S. 1, 6 (1932) (finding that failure to obtain a warrant before searching a garage, when there was "abundant opportunity" to do so, necessitated suppression of evidence).
58. See Clancy, supra note 24, § 8.1.1.
59. See, e.g., Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009);
60. California v. Acevedo, 500 U.S. 565, 580-81 (1991);
61. Mincey v. Arizona, 437 U.S. 385, 390 (1978);
62. Katz v. United States, 389 U.S. 347, 357 (1967).
63. E.g., United States v. Banks, 540 U.S. 31, 42 (2003) (rejecting lower court's categorical approach in favor of a '"totality of circumstances' principle" to measure reasonableness);
64. United States v. Knights, 534 U.S. 112, 118 (2001) ("general" approach to measuring reasonableness examines totality of circumstances);
65. Robbins v. California, 453 U.S. 420,438 (1981) (Rehnquist, J, dissenting) (rejecting "judicially created" preference for warrants and advocating Taylor's view);
66. United States v. Rabinowitz, 339 U.S. 56, 65-66 (1950) ("The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances - the total atmosphere of the case.").
67. See generally Clancy, supra note 24, at ch. 11 (discussing the various models the Court uses to measure reasonableness); Thomas K. Clancy, The Fourth Amendment's Concept of Reasonableness, 2004 Utah L. Rev. 977 (same).
68. E.g., Samson v. California, 547 U.S. 843 (2006).
69. E.g., Wyoming v. Houghton, 526 U.S. 295 (1999).
70. E.g., Indianapolis v. Edmond, 531 U.S. 32 (2000).
71. Clancy, supra note 24, § 11.1, at 468.
72. See, e.g., Tennessee v. Garner, 471 U.S. 1,12-15 (1985) (changing the common law rule permitting police to shoot at fleeing suspects in part because modern felonies differ significantly from common law felonies and because of technological changes in weaponry).
73. Steagald v. United States, 451 U.S. 204, 217 n.10 (1981);
74. Payton v. New York, 445 U.S. 573, 591 n.33 (1980).
75. Cf. New Jersey v. T.L.O, 469 U.S. 325, 339 (1985). In applying the amendment to searches of school children by school authorities, the Court recognized that the government's interest included contemporary needs: "Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems." Id.
76. E.g., Steagald, 451 U.S. at 217 n.10 ("Crime has changed, as have the means of law enforcement, and it would therefore be naive to assume that those actions a constable could take in an English or American village three centuries ago should necessarily govern what we, as a society, now regard as proper."); Payton, 445 U.S. at 600 (stating that "custom and contemporary norms necessarily play" a "large role" in assessing reasonableness);
77. cf. Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999) (utilizing contemporary considerations in the balancing test to measure the reasonableness of a search or seizure as an alternative if historical analysis does not produce a dispositive answer).
78. But cf. Richards v. Wisconsin, 520 U.S. 385, 392 n.4 (1997) (cautioning that "[i]t is always somewhat dangerous to ground exceptions to constitutional protections in the social norms of a given historical moment," given the Fourth Amendment's purpose of preserving that degree of privacy that was afforded at the time it was adopted).
79. E.g., Terry v. Ohio, 392 U.S. 1 (1968).
80. See, e.g., Oliver v. United States, 466 U.S. 170, 183-84 (1984) (finding that although "[t]he common law may guide consideration of what areas are protected by the Fourth Amendment," common law rights are not coincident with the Fourth Amendment);
81. Payton, 445 U.S. at 591 (common law view utilized to shed light on framers' intent); Gerstein v. Pugh, 420 U.S. 103, 114 (1974) (common law acts as a guide to interpret the Fourth Amendment).
82. See generally David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739 (2000) (tracing Supreme Court treatment of the common law as an interpretative tool).
83. See, e.g., United States v. Chadwick, 433 U.S. 1, 9 (1977) ("What we do know is that the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth.");
84. United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972) ("Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance.");
85. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) ("If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.");
86. United States v. Lefkowitz, 285 U.S. 452,467 (1932) (rejecting literal construction of words in favor of amendment's purpose);
87. see also Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 353 (1974) ("The Bill of Rights in general and the fourth amendment in particular are profoundly anti-government documents.");
88. Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 626-27 (1996) (arguing that the values underlying the amendment, to protect individual rights, must be reflected in its application to modern conditions, where scientific invention has made it possible for government agents to violate privacy rights without employing physical power). (Pubitemid 126406846)
89. See, e.g., JOHN hart ELY, DEMOCRACY and DISTRUST: A THEORY of JUDICIAL Review 1-2 (1980) ("[T]he Constitution proceeds by briefly indicating certain fundamental principles whose specific implications for each age must be determined in contemporary context.. That the complete inference will not be found there - because the situation is not likely to have been foreseen - is generally common ground.");
90. Joseph D. Grano, Rethinking the Fourth Amendment Warrant Requirement, 19 AM. Crim. L. Rev. 603, 620 (1982) ("The underlying grievances are certainly relevant to the interpretative task, but constitutional provisions cannot be properly viewed simply as shorthand statements for the specific grievances that gave rise to them.");
91. James J. Tomkovicz, California v. Acevedo: The Walls Close in on the Warrant Requirement, 29 AM. Crim. L. Rev. 1103, 1137 (1992) (" Constitutional analysts generally agree that the document was meant to be more than a mere catalogue of forbidden actions." The framers intended that the "underlying values" be honored, (emphasis in original)).
92. See generally Cuddihy, supra note 15 (providing a comprehensive treatment of the complex history of search and seizure in England and its American colonies to adoption of the Fourth Amendment). Thus, for example, as Professor Sklansky has demonstrated, the common law - which was one important source of search and seizure rules - was not a "unified, systematic body of rules, constant across space and time." Sklansky, supra note 48, at 1795. Search and seizure rules "varied from colony to colony and from decade to decade." Id. Sklansky also observed that "in both England and America, theory and practice often diverged." Id. at 1795-96. That latter observation remains true to this day.
93. Although there was a loose system of justice, involving part-time constables and peace officers, "the mobilization of criminal justice depended almost entirely on private initiation of criminal prosecutions." Davies, Original Fourth Amendment, supra note 24, at 620-22.
94. Taylor, supra note 3, at 27-28. See generally 2 Id. at thew Hale, The History of the Pleas of the Crown 85-103 (1736).
95. Taylor, supra note 3, at 28 (citing 2 Pollock & Maitland, The History of Engush Law 582-83 (2d ed. 1959)).
96. Id.
97. E.g., United States v. Chadwick, 433 U.S. 1, 8 (1977);
98. Taylor, supra note 3, at 39; Davies, Original Fourth Amendment, supra note 24, at 578; Tomkovicz, supra note 50, at 1133.
99. See infra notes 196-231 and accompanying text.
100. Taylor, supra note 3, at 24.
101. Entick v. Carrington, (1765) 19 Howell's St. Tr. 1029 (K.B.) 1067.
102. Taylor, supra note 3, at 24.
103. Lasson, supra note 3, at 17.
104. See M.H. Smith, The Writs of Assistance Case 336-39 (1978);
105. see also Grumon v. Raymond, 1 Conn. 40, 43-46 (1814) (recognizing that a search warrant for stolen goods must limit the search to particular places where it is reasonable to suspect goods are and to such persons reasonably suspected);
106. Frisbie v. Butler, 1 Kirby 213, 215 (Conn. 1787) (same).
107. See Letter from John Adams to William Tudor (Aug. 11, 1818), in 10 The Works of John Adams, supra note 7, at 345.
108. Taylor, supra note 3, at 25. See generally Gerstein v. Pugh, 420 U.S. 103,116 n. 17 (1975).
109. Cuddihy, supra note 15, at 392. Compare 2 Hale, supra note 53, at 150 (asserting that a "general warrant to search in all suspected places [for stolen goods] is not good, but only to search in such particular places, where the party assigns before the justice his suspicion and the probable cause thereof and maintaining that general warrants were "dormant"), with Michael Dalton, The Country Justice 418 (1746) (giving an example of a general warrant for stolen goods that permitted "diligent Search in all and every such suspected Houses .. as you and this Complainant shall think convenient" (emphasis in original)); id. at 419, 423-24 (setting out other general warrant forms to search after a robbery and for "rogues").
110. See Cuddihy, supra note 15, at 311-12, 340-41, 371-75, 386 n.54, 389 n.68 (discussing evolution of the history of stolen goods warrants from general to specific and concluding that they were probably specific in Massachusetts by 1761).
111. 2 Hale, supra note 53, at 105-09.
112. Id. at 105.
113. M.atlll.
114. Smith, supra note 62, at 21. See generally Lasson, supra note 3, at 18-22 (tracing early history of search and seizure in England).
115. See infra Part H.C.
116. Lasson, supra note 3, at 23.
117. Taylor, supra note 3, at 26.
118. Lasson, supra note 3, at 54.
119. Smith, supra note 62, at 29.
120. Landynski, supra note 1, at 31; see also Lasson, supra note 3, at 53-54. The writs expired six months after the death of the sovereign. Id. at 57. There is some dispute about whether the writs served to authorize the search or whether that power inhered in the officers by virtue of their commission, with the writs being merely "judicial orders which empowered the customs officials to summon the sheriff or constable .. to keep the peace while the search was in progress." Landynski, supra note 1, at 32 n.53. Regardless of their formal characterization, the writs were regarded "as synonymous with the power to search itself." Id.; see also Berger v. New York, 388 U.S. 41, 58 (1967) (equating customs writs of assistance to general warrants). But cf. Smith, supra note 62, at 37-39, 461, 520-21 (citing cases and 1768 opinion of the English Attorney General and recognizing that a writ of assistance was not a search warrant but the vehicle by which statutory power to search was exercised).
121. Smith, supra note 62, at 13. If the case were defended and went against the informer, he would be liable for damages at common law. Id. at 13, 310 (citing Leglise v. Champante, (1728) 93 Eng. Rep. 871 (K.B.)). The common law position was modified in England by statute in 1746; the statute provided that, if the court certified that probable cause for the seizure existed, the action for damages in effect would be barred. A similar limitation was introduced into the American colonies in 1764. Id. at 13 n.9.
122. Smith, supra note 62, at 13.
123. This litigation has many names but no formal designation. Another common reference is Paxton's Case; Charles Paxton was the customs official who sought the new writs.
124. Landynski, supra note 1, at 30. See generally Lasson, supra note 3, at 51-78. Authorities in Massachusetts were more successful in obtaining writs of assistance than in other colonies. See, e.g., Smith, supra note 62, at 96,106-07,115.
125. Taylor, supra note 3, at 36.
126. Id.
127. Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, Between 1761 and 1772, at 531-32 (1865).
128. See, e.g., Frank v. Maryland, 359 U.S. 360, 364 (1959); Boyd v. United States, 116 U.S. 616,625 (1886).
129. See Cuddihy, supra note 15, at 382 ("[Otis's] proclamation that only specific writs were legal was the first recorded declaration of the central idea to the specific warrant clause."); Smith, supra note 62, at 7 ("[In that argument,] the American tradition of constitutional hostility to general powers of search first found articulate expression.").
130. The Writs case was argued in February 1761 and re-argued in November 1761. Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams 106,114-15 (L. Kinvin Wroth & Hiller B. Zobel eds, 1965). Adams was present for only the first argument. Id. The Boston Gazette ran a few short accounts of the controversy but those accounts covered only the second argument in November 1761 and the subsequent issuance of the writs. See Qutncy, supra note 83, at 486-88.
131. See, e.g., QuiNCY, supra note 83, at 469 n. 1.
132. Thomas Hutchinson, The History of the Province of Massachusetts Bay, from 1749 to 1774, at 93-94 (1828).
133. The star footnote in the original cites Dalton's The Country Justice. Dalton, supra note 65. Adams had a copy of this treatise in his library. See infra note 200. Dalton was "widely used in America." Smith, supra note 62, at 336.
134. Hutchinson, supra note 88, at 93-94. The star footnote in the original states, "The authority was a London magazine." See Cuddihy, supra note 15, at 277, 387, 414 (discussing the magazine article); Smith, supra note 62, at 537-39 (reproducing the article).
135. Hutchinson, supra note 88, at 93-94.
136. Id. at 94.
137. Quincy, supra note 83, at 488.
138. See id.
139. Id. at 489 (emphasis in original) (quoting Otis's article in the Gazette).
140. Id. at 490; see id. at 476 n.29 (describing the facts of Walley v. Ware).
141. Id. at 476n.29.
142. Id. at 490.
143. Id. (emphasis in original).
144. Id. (emphasis in original).
145. Id. at 494 (emphasis in original).
146. Gridley, Thatcher, and Otis became close friends of Adams, who later remarked that he remained friends with the three men "till their deaths." 3 Diary and Autobiography of John Adams 273 (L.H. Butterfield ed, 1961). Indeed, their names appear frequently in Adams's extensive writings; in particular, Adams, Gridley, and Otis were often together in courtrooms, clubs, meetings, and other gatherings. Gridley, during an interview with Adams in 1758 concerning Adams's qualifications to be sworn to practice in Boston as a lawyer, gave Adams some advice: "[PJursue the Law itself, rather than gain of it. Attend enough to the profits, to keep yourself out of the Briars: but the Law itself should be your great Object." Id. at 272. Adams held Otis in high esteem; he described Otis as "by far the most able, manly and commanding Character of his Age at the Bar." Id. at 275.
147. Adams also recounted in his diary the increasing mental problems of Otis in the years leading up to the Revolution. E.g., 1 Diary and Autobiography of John Adams, at 270-71 (diary entry for December 23, 1765) (recounting Otis's emotional instability and "inexplicable Passages in his conduct);
148. Diary and Autobiography of John Adams, at 50 (diary entry for August 22 and 23, 1771) (observing that "Otis's Gestures and Motions are very whimsical, his Imagination is disturbed - his Passions all roiled"); id. at 64-65 (diary entry for October 27, 1772) (describing Otis as "looking and acting as wildly as ever he did"). Otis was an important political figure for several years after the Writs case but ultimately was marginalized due to mental illness.
149. See generally William Tudor, The Life of James Otis (1823).
150. He also discussed whether the court had jurisdiction to issue such writs. E.g., Petition of Lechmere, Adams' "Abstract of the Argument," in 2 Legal Papers of John Adams, supra note 86, at 134,136-38.
151. See generally QuiNCY, supra note 83, at 476-82. This necessity argument has often been invoked in justifying searches. See, e.g., Entick v. Carrington, (1765) 19 Howell's St. Tr. 1029 (K.B.) 1063-64 (discussing the argument by attorneys for Lord Halifax that the power of the executive to issue search warrants for papers in seditious libel cases was essential to the government). See generally Clancy, supra note 24, § 11.3.4.4.2 - .3 (discussing the role of necessity in measuring reasonableness in Supreme Court opinions).
152. Smith, supra note 62, at 281.
153. Id.
154. This is not to say that Adams discounted Thatcher as a person or as an advocate. Adams referred to Thatcher as "an eminent barrister at law, in as large [a] practice as any one in Boston. There was not a citizen of that town more universally beloved for his learning, ingenuity, every domestic and social virtue, and conscientious conduct in every relations of life." Letter from John Adams to H. Niles (Feb. 13, 1818), in 10 The Works of John Adams, supra note 7, at 285 (1856). Adams described himself as frequent visitor to Thatcher's home, until Thatcher's death in 1765, where they discussed many intellectual subjects. Id. at 285-86;
155. see also Letter from John Adams to Edmund Jenings (July 14,1780), in 9 Papers of John Adams 588, 589 (Gregg L. Lint ed, 1996) (referring to Otis and Thatcher and remarking that he did not "know where to find greater or better Men").
156. For a brief summary of Thatcher's life, see Clifford K. Shjjton, New England Life in the Eighteenth Century: Representative Biographies from Sibley's Harvard Graduates 443-49 (1995).
157. Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 106, 114.
158. Petition of Lechmere, Adams' Minutes of the Argument, in 2 Legal Papers of John Adams, supra note 86, at 123,124.
159. Id. at 125.
160. Id.; see also Petition of Lechmere, Adams' "Abstract of the Argument," in 2 Legal Papers of John Adams, supra note 86, at 134, 138-39.
161. In 1765, Thatcher wrote The Sentiments of a British American, in which he observed that, if an admiralty court certified that there was "probable cause of seizure," an action against a customs official would not lie. Oxenbridge Thacher, The Sentiments of a British American, in 1 Pamphlets of the American Revolution 483,495 (Bernard Bailyn ed, 1965);
162. see also Stephen Hopkins, The Rights of the Colonies Examined, in 1 Pamphlets of the American Revolution, supra, at 516 (observing that probable cause certification by a judge prevented recovery for improper customs search).
163. Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 106, 114.
164. John Adams's Report of the First Argument in February 1761, in Quincy, supra note 83, at 469, 471-75. The material quoted here omits the footnotes inserted by Quincy and substitutes the modern spelling of such words as "Houfe." The notes are also reproduced in a variety of other works. E.g., Petition of Lechmere, Adams' Minutes of the Argument, in 2 Legal Papers of John Adams, supra note 86, at 123, 123-32 (modernizing spelling and punctuation, extending abbreviations, and adding explanatory footnotes). For discussion of the sources cited by Otis, see Cuddihy, supra note 15, at 389-91; Quincy, supra note 83, at 471-76,483.
165. Adams noted in his diary some time shortly after April 3, 1761, that he had shown the abstract to "J.Q," who was apparently Joshua Quincy, and that Quincy remarked that Gridley "did not use that Language. He never was Master of such a style." Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 106, 122 (1850).
166. See Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 106, 121-23;
167. Petition of Lechmere, Adams' Abstract of the Argument, in 2 Legal Papers of John Adams, supra note 86, at 134, 134-35 n.103 (noting multiple sources of the abstract and reproducing it with notes on its variations).
168. Numerous sources quote the abstract. E.g., Payton v. New York, 445 U.S. 573, 608-09 (1980) (White, J, dissenting); Smith, supra note 62, at 331-79 (extensive analysis of Otis's argument); Taylor, supra note 3, at 36-37.
169. Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 106, 123.
170. In his Autobiography, Adams discounted the accuracy of his contemporaneous notes: I took a few minutes, in a very careless manner, which by some means fell into the hands of Mr. Minot, who has inserted them in his history. I was much more attentive to the Information and the Eloquence of the Speakers, than to my minutes, and too much allarmed at the prospect that was opened before me, to care much about writing a report of the Controversy. 3 Diary and Autobiography of Adams, supra note 101, at 276.
171. Despite this disclaimer made late in life, the notes are remarkably consistent with the abstract, made shortly after the arguments. Adams's comments are also somewhat confusing. Minot reproduced Adams's abstract of the argument - not his notes. Minot dedicated the book to Adams and gave Adams a copy. See The John Adams Library, Boston Public Library, www.johnadamslibrary.org/book/? book=2347625Adams%20252.10%20v.2. Adams underlined and made a few comments in the margin of his copy of the book, labeling as "interpretation" the following parts of Otis's argument, as recounted by Minot: Until the trump of the acrh-angel shall excite different emotions of his foul. * * * What is this but to have the curese of Carman with a witness on us: to be the servant of servants, the most despicable of God's creation.
172. See George Richards Minot Continuation of the History of the Province of Massachusetts Bay: From the Year 1748 [to 1765] at 95-96 (1798) (copy in Boston Public Library). Adams's copy which is dated 1803, has two other minor comments: he crossed out the word "charge" and inserted "chance" in the margin, id. at 90, and struck out the word "decerned" and wrote that "the conclusions better descen'd," id. at 92.
173. Given the lack of comments regarding the rest of Minot's version, it is a fair conclusion that Adams viewed the summary as accurate. See also Letter from John Adams to John Tudor (Mar. 29, 1817), in 10 The Works of John Adams, supra note 7, at 246 (1856) (noting that Minot's account contained "some interpolations").
174. E.g., Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 106, 117-21 (analyzing Otis's arguments on the limits of judicial and legislative authority). This is an important point: Otis not only offered an alternative vision of the proper criteria for warrants to issue, he also argued that courts had the power to find illegal those warrants that did not meet that criteria. Advocates of the undefined reasonableness standard apparently miss that distinction. Hence, Davies argues that there was no meaning to the concept of reasonableness in part based on Otis's argument that the Writs were void as "against reason." Davies asserts: Coke's "against reason" dictum was the fulcrum for James Otis's 1761 argument during the Writs of Assistance Case. Of course, Otis denounced the general writ of assistance as a violation of American liberties. But the crucial point is that he leveled a constitutional attack against the legislation authorizing the writ. Otis opened by developing and emphasizing the high level of protection the common law afforded the house under the "castle" doctrine. He then established that the common-law authorities had already condemned general warrants as illegal. From those premises, he concluded that any statute that authorized use of a general writ would be so contrary to the principles of common law as to be "void." Davies, Original Fourth Amendment, supra note 24, at 689-90 (emphasis in original) (citations omitted). He later continues: Thus, John Adams likely had a ready-made qualifier for "searches and seizures" when he wrote the Massachusetts provision. Because "unreasonable" was a pejorative synonym for gross illegality or unconstitutionality, "unreasonable searches and seizures" simply meant searches and seizures that were inherently illegal at common law. As a result, the Framers would have understood "unreasonable searches and seizures" as the pejorative label for searches or arrests made under that most illegal pretense of authority - general warrants. Id. at 693. Davies misses the larger point. Otis was working within a legal regime where the notion that a court could void a statute as "against reason" was at best novel and had little support beyond what Coke had asserted in Bonham's Case, (1610) 77 Eng. Rep. 646 (CP.), 8 Co. Rep. 113b. That question today would be framed to ask whether the statute was constitutional. Otis, in that part of the argument that Davies relies on, was addressing whether the court had the power to strike down a defective writ. The Fourth Amendment and the concept of judicial review now gives courts such authority. The separate question concerns what criteria should be employed to assess the reasonableness of the search or seizure. Davies conflates the two questions to support his view that the framers had no criteria in mind when they inserted the word "unreasonable" in the Fourth Amendment. Ignored or at least dismissed by Davies is the part of Otis's argument where he offered explicit criteria to measure the legality (now "reasonableness") of a search. In that portion of his argument, Otis was not arguing for some undefined concept of "reasonableness" but, instead, articulated specific criteria to measure the propriety of the writs, that is, the requirements that regulated the issuance of a common law search warrant for stolen goods. That second question, the criteria that should be utilized to determine if an intrusion is justified, is the important one today.
175. 2 The Works of John Adams, supra note 7, app. A, at 524-25 (1850) (emphasis in original).
176. See 10 The Works of John Adams, supra note 7, at 289-92, 314-62 (1856) (collecting letters from Adams to Tudor from the summer and fall of 1818).
177. In one aside, Adams observed that molasses was one of the principal commodities imported, the main use of which was to make rum. Adams noted that "[w]its may laugh at our fondness for molasses" but, for his part, Adams maintained: "I know not why we should blush to confess that molasses was an essential ingredient in American independence." Letter from John Adams to William Tudor (Aug. 11, 1818), in 10 The Works of John Adams, supra note 7, at 345.
178. E.g., Letter from John Adams to William Tudor (June 1, 1818), in 10 The Works of John Adams, supra note 7, at 314;
179. Letter from John Adams to William Tudor (June 17, 1818) in 10 The Works of John Adams, supra note 7, at 321;
180. Letter from John Adams to William Tudor (Sept. 13,1818), in 10 The Works of John Adams, supra note 7, at 355.
181. Petition of Lechmere, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 106,107 (collecting authorities).
182. Id.
183. Letter from John Adams to William Tudor (June 1, 1818), in 10 the Works of John Adams, supra note 7, at 315-16 (1856).
184. Id. at 316.
185. Letter from John Adams to William Tudor (June 9, 1818), in 10 the Works of John Adams, supra note 7, at 319.
186. Letter from John Adams to William Tudor (June 24, 1818), in 10 The Works of John Adams, supra note 7, at 323.
187. Letter from John Adams to William Tudor (Aug. 16, 1818), in 10 The Works of John Adams, supra note 7, at 347.
188. Hutchinson, supra note 88, at 94-95. The people perceived Otis's actions as springing from a "sincere concern for the liberties of the people" and elected him as their representative in the next election to the general assembly. Id. at 95.
189. Landynski, supra note 1, at 31.
190. Lasson, supra note 3, at 51; see also Berger v. New York, 388 U.S. 41, 58 (1967) (claiming that the use of general warrants was a motivating factor behind the Declaration of Independence);
191. United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J, dissenting) (explaining that the revulsion was so "deeply felt by the Colonies as to be one of the potent causes of the Revolution");
192. Harris v. United States, 331 U.S. 145, 159 (1947) (Frankfurter, J, dissenting) (arguing that the abuses surrounding searches and seizures "more than any one single factor gave rise to American independence"); Leagre, supra note 2, at 397 (claiming that, based on the history of abuses, the "chief concern in the colonists' minds was probably with the issuance of general warrants").
193. See Smith, supra note 62, at 567-68; see also Quincy, supra note 83, at 495-96 (providing text of the bill).
194. Smith, supra note 62, at 425-28.
195. See, e.g., Quincy, supra note 83, at 436-38, 445-46, 463; Sewall v. Hancock, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 179-80.
196. For example, at a meeting of the inhabitants of Boston on November 2, 1772, a committee was appointed '"to state the Rights of the Colonists.'" The committee report, published by order of the town, attacked the writs of assistance as giving '"absolute and arbitrary'" power to customs officials to search anywhere they pleased. The report concluded: Thus our Houses, and even our Bed-Chambers, are exposed to be ransacked, our Boxes, Trunks and Chests broke open, ravaged and plundered, by Wretches, whom no prudent Man would venture to employ even as Menial Servants; whenever they are pleased to say they suspect there are in the House, Wares, [etc.] for which the Duties have not been paid. Flagrant instances of the wanton exercise of this Power, have frequently happened in this and other seaport Towns.. These Officers may under the color of Law and the cloak of a general warrant, break through the sacred Rights of the Domicil, ransack Mens Houses, destroy their Securities, carry off their Property, and with little Danger to themselves commit the most horrid Murders. Quincy, supra note 83, at 467 (emphasis in original) (quoting the Report of the Committee at 15-17); see also Warden v. Hayden, 387 U.S. 294, 315 (1967) (Douglas, J, dissenting).
197. See, e.g., Cuddihy, supra note 15, at 396, 544-45.
198. See generally Smith, supra note 62, at 466-501, 562-66; Quincy, supra note 83, at 436-38, 444 - 49, 458-59, 463, 488-94. As an example of the contemporary reaction, Chief Justice Thomas Hutchinson's home was burned by arsonists during the Stamp Act riots of 1765. The then-governor of Massachusetts Bay Colony attributed the attack to Hutchinson's role in granting writs of assistance to customs officials. Quincy, supra note 83, at 416 n.2, 434 n.20; Taylor, supra note 3, at 38; Lasson, supra note 3, at 68.
199. Smith, supra note 62, at 438-60 (discussing how the Townshend Act was motivated by the recognition that there was no legal basis to issue writs of assistance in the colonies). The Acts of Trade created a new American Board of Customs to enforce the acts and authorized the highest court in each colony to issue writs of assistance. Quincy, supra note 83, at 449-50.
200. See generally Quincy, supra note 83, at 500-11; O.M. Dickerson, Writs of Assistance as a Cause of the Revolution, in the era of the american revolution 49-75 (Richard B. Morris ed, 1939) (summarizing colonial courts' reaction to petitions for writs of assistance between 1761 and 1776).
201. Quincy, supra note 83, at 510-11, 534-35; Smith, supra note 62, at 2,460,469-70.
202. Smith, supra note 62, at 2-3, 461-62, 520-23. Only South Carolina gave in. Id. at 3-4.
203. See generally QuiNCY, supra note 83, at 401-35.
204. Cf. Cuddihy, supra note 15, at 327 ("Colonial Massachusetts, not Great Britain, formulated most of the ideas that formed the specific warrant clause of the Fourth Amendment.").
205. 3 Diary and Autobiography of Adams, supra note 101, at 276.
206. Letter from John Adams to Abigail Adams (July 3,1776), in 9 The Works of John Adams, supra note 7, at 418 (1854).
207. Letter from John Adams to Mr. Calkoen (Oct. 4, 1780), in 7 The Works of John Adams, supra note 7, at 267 (1852).
208. Letter from John Adams to William Tudor (Mar. 29, 1817), in 10 The Works of John Adams, supra note 7, at 247-48 (1856);
209. see Lasson, supra note 3, at 58-59 (quoting 10 The Works of John Adams, supra note 7, at 247-48 (1856));
210. see also United States v. Verdugo-Urquidez, 494 U.S. 259, 286 n.8 (1990) (Brennan, J, dissenting) (citing Adams's assessment of Otis's argument);
211. Payton v. New York, 445 U.S. 573,583 n.21 (1980) (same).
212. Letter from John Adams to H. Niles (Feb. 13, 1818), in 10 The Works of John Adams, supra note 7, at 282 (1856).
213. Id. at 282-83 (emphasis omitted); see also Letter from John Adams to Thomas Jefferson (Aug. 24, 1815), in 10 The Works of John Adams, supra note 7, at 172 (1856) ("The revolution was in the minds of the people, and this was effected from 1760 to 1775 .. before a drop of blood was shed at Lexington.");
214. Letter from John Adams to Dr. Morse (Nov. 29, 1815), in 10 The Works of John Adams, supra note 7, at 183-84 (1856) (stating that the "revolution in the principles, views, opinions, and feelings of the American people" began with Otis's argument);
215. Letter from John Adams to H. Niles (Jan. 14,1818), in 10 THE Works of John Adams, supra note 7, at 276 (1856) (stating that Otis's argument "breathed into this nation the breath of life").
216. (1763) 98 Eng. Rep. 489 (K.B.).
217. See, e.g., Stanford v. Texas, 379 U.S. 476, 484 (1965) (describing the Wilkes opinion as "a wellspring of the rights now protected by the Fourth Amendment");
218. Boyd v. United States, 116 U.S. 616, 626-27 (1886) (maintaining that it can be "confidently asserted" that the Wilkes case and its results "were in the minds of those who framed the Fourth Amendment").
219. See generally Marcus v. Search Warrant of Prop, 367 U.S. 717, 724-29 (1961) (outlining the history of the relationship between the struggle for freedom of the press and the scope of the search and seizure power in England).
220. Cf. 1 The Papers of George Mason 290 (Robert A. Rutland ed, (1970) (Edmond Randolph viewed the Virginia provision prohibiting general warrants as inspired by the seizure of Wilkes's papers in England under a general warrant).
221. Lasson, supra note 3, at 43-44.
222. Id.
223. Id. at 43 (quoting the warrant).
224. Id.
225. Id.&t 43-44.
226. See Money v. Leach, (1765) 97 Eng. Rep. 1075 (K.B.);
227. Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (K.B.);
228. Huckle v. Money, (1763) 95 Eng. Rep. 768 (K.B.).
229. Wilkes, 98 Eng. Rep. at 498.
230. Id.
231. 3 James Burrow, Reports of Cases Adjudged in the Court of King's Bench Since the Time of Lord Mansfield's Coming to Preside in It (1771), available at www.archive.org/details/reportsofcasesad03burr (scan of Adams's copy). One cannot know for sure when Adams acquired the Burrow volume containing the Wilkesite litigation, but it is the original edition, published in 1771. Moreover, on April 20, 1771, Adams wrote about reading Burrow in his diary: This mettlesome barrister gives us the best account of the unanimity of the King's Bench, that I have ever heard or read. According to him, it is not uncommon abilities, integrity and temper, as Mr. Burrow would persuade us, but sheer fear of Lord Mansfield, the Scottish chief, which produces. this miracle in the moral and intellectual world; that is, of four judges agreeing perfectly in every rule, order, and judgment for fourteen years together. Four men never agreed so perfectly in sentiment for so long a time before. Four clocks never struck together a thousandth part of the time; four minds never thought, reasoned, and judged alike before for a ten thousandth part.
232. The Works of John Adams, supra note 7, at 257 (1850).
233. For Adams's purchase, see The John Adams Library, Boston Public Library, www.johnadamslibrary.org/book/?book=2215967Adams%2082.1%20v.3%20Folio. Adams also makes reference to a case from Volume 2 of Burrow's Reports, which was another opinion by Lord Mansfield, in a paper written by him in 1774.
234. See 4 The Works of John Adams, supra note 7, at 165 (1851).
235. (1765) 97 Eng. Rep. 1075, 3 Burr. 1742. In this Part, all quotations to Money are from the 1771 edition of Burrow's Reports, rather than the English Reports, because this is the version that Adams used. I have preserved the original capitalization, spelling, and typeface.
236. The warrant directed the messengers and their assistants to make strict and diligent search for the said Authors Printers and Publishers of the aforesaid seditious Libel intitled "The North Briton No. 45. April the 23rd. 1763:" And them or any of them having found, to apprehend and seize, together with their Papers, and to bring in safe Custody before said Earl, to be examined concerning the Premisses, and to be further dealt with according to Law.. .. (1765) 3 Burr. 1742 (K.B.) 1743.
237. Id. at 1748.
238. Id. at 1743.
239. Id. at 1743-44.
240. Id. at 1744,1749.
241. Id. at 1745.
242. Id.
243. Id. at 1755.
244. Id. at 1756.
245. Id. at 1757.
246. Id. at 1757.
247. Id. at 1761.
248. Id. at 1762.
249. Id. at 1762-63.
250. Id. at 1763. He also noted that Chief Justice Scruggs had been impeached for issuing warrants similar to the one in Leach. Id.
251. Id. at 1764.
252. Id. at 1765.
253. Id. at 1766.
254. M at 1766-67.
255. M. at 1767. The case was set for reargument, and, after hearing reargument, Mansfield stated that his opinion had not changed. M The other judges were said to be "assenting" in affirming the judgment. M. at 1767-68. See supra note 160 for Adams's comments on Burrow's characterization regarding the unanimity of opinions of judges sitting with Lord Mansfield.
256. See supra note 151. Another contemporary English case, Entick v. Carrington, (1765) 19 Howell's St. Tr. 1029 (K.B.), also has been repeatedly cited by the United States Supreme Court as a '"monument of English freedom' 'undoubtedly familiar' to 'every American statesman' at the time the Constitution was adopted, and considered to be 'the true and ultimate expression of constitutional law.'"
257. Brower v. County of Inyo, 489 U.S. 593, 596 (1989)
258. (quoting Boyd v. United States, 116 U.S. 616, 626 (1886)).
259. Accord Berger v. New York, 388 U.S. 41,49 (1967). Notwithstanding this confidence by the Supreme Court, I have found no reference to Entick at all by Adams or by anyone involved in the discussions between 1787 and 1791 regarding the need for a bill of rights, despite the voluminous commentary of the era regarding the adoption of the Constitution and proposed amendments. However, Entick was the subject of numerous London publications at the time of the decision, and the case found its way into numerous reports of cases. Cuddihy, supra note 15, at 459, 481. Nonetheless, there were various versions of the case report, and the one most often cited, with the
260. Davies, Original Fourth Amendment, supra note 24, at 566 n.25. The Entick case stemmed from a warrant issued by the secretary of state to arrest Entick and to seize his books and papers, based on the charge that he was "the author, or one concerned in the writing of several weekly very seditious papers." 19 Howell's St. Tr. at 1031. Entick was arrested, and all of his papers were seized from his home. After his release, he sued the messengers in trespass. The jury returned a verdict for Entick, and the case was heard by Judge Pratt, who by then was called Lord Camden. Id. at 1044. Camden condemned the scope of the warrant, which had authorized seizure of all of Entick's papers, comparing it unfavorably to the criteria for warrants for stolen goods. Id. at 1063. He also discussed the fundamental role that property rights played in society and outlined a hierarchy of property rights. Camden said that there was no right to seize or inspect papers, which were considered the owner's "dearest property." Id. at 1066. He distinguished the right to search for and seize stolen goods based on the property rights involved: in the case of stolen goods, the owner is permitted to recapture his own goods; the seizure of private papers, however, involved taking the owner's property by the government. Id. at 1066-68. Camden also rejected the government's right to search papers as a means of discovering evidence in either criminal or civil cases. Id. at 1073.
261. Camden's hierarchy had a strong influence on early decisions of the Supreme Court, particularly Boyd v. United States, 116 U.S. 616 (1886).
262. See also Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 Wake Forest L. Rev. 307, 310-26 (1998) (discussing Entick's influence on the Supreme Court's interpretation of the Fourth Amendment).
263. In a lecture at Suffolk University Law School, Professor Amar asked: [W]hy did both Massachusetts' Article XIV and the federal Fourth bother to specify "persons," "houses," and "papers"? Precisely to remind us, I suggest, of the heightened sensitivity government should show towards searches and seizures of these three specially-named items. Houses are often more private than other buildings; diaries and other private papers are often our dearest possessions (and raise large issues of free expression, as do all political papers); and searches and seizures of our bodies - our persons - obviously call for special sensitivity. Note how, in Wilkes and Entick, intrusions occurred against persons, houses, and papers - with bodily arrests and the ransacking of secret cabinets in homes in search of personal and political papers - and so here, too, we see the obvious prominence of these paradigm cases in both the Massachusetts and the federal Constitutions. (Personal and political papers were not really at issue in the Boston writs-of-assistance case; and the main focus of concern seems to have been searches of buildings rather than persons.) Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53,69 (1996) (emphasis in original).
264. See Cuddihy, supra note 15, at 538-40, 847-50. As Cuddihy stated: "Massive coverage of the Wilkes affair by the colonial press sensitized readers not only to but against general warrants." Id. at 538; see also Davies, Original Fourth Amendment, supra note 24, at 562-65 (summarizing newspaper accounts and other sources of information about the general warrant cases).
265. 1 Papers of John Adams, supra note 106, at 215-16 n.l (Robert J. Taylor ed, 1977).
266. Id. at 214. For subsequent correspondence between Wilkes and the Sons of Liberty, see id. at 216,220-23,232-34; R. W. Postdate, That Devil Wilkes 173-78 (1929);
267. Peter D.G. Thomas, John Wilkes: A Friend to Liberty 161-62 (1996).
268. See, e.g., Esther Forbes, Paul Revere and the World He Lived In 120, 128 (1942). In one famous example, Paul Revere in 1768 was commissioned by fifteen Sons of Liberty to create a silver punch bowl in honor of the members of the Massachusetts legislature who refused to give in to the King's request to rescind a letter that had been sent to other colonies, which had sought to generate opposition to the Townshend Acts. Engraving on the bowl included "No. 45," "Wilkes and Liberty," and a "torn document for general warrants." Id. at 128-29.
269. The bowl is now in the Boston Museum of Fine Arts and has been described as ranking with the Declaration of Independence and the Constitution as the nation's "three most cherished historic treasures." Sons of Liberty Bowl, museum of Fine Arts, Boston, http://www.mfa.org/collections/object/39072.
270. In his diary on August 14, 1769, Adams recounted dining with 350 Sons of Liberty under the Sign of Liberty Tree, followed by a variety of toasts. He noted that Otis and Samuel Adams promoted such occasions because they "impregnate [the people] with the sentiments of Liberty." 1 Diary and Autobiography of Adams, supra note 101, at 341. Although Adams did "not see one Person intoxicated," id., the editor of his diary viewed that observation as "remarkable, considering that fourteen toasts were drunk at the Liberty Tree in Boston, followed by forty-five (in honor of John Wilkes's North Briton, No. 45) at the dinner." Id. at 342 n.2.
271. Adams was a member of the Bill of Rights Society. 1 Papers of John Adams, supra note 106, at xiv. That Society, begun in England in 1769, was largely designed to promote Wilkes's views and pay his debts. Thomas, supra note 186, at 111-15.
272. Adams's correspondence occasionally referenced Wilkes. In one letter, Adams observed that, during the period leading up to the Revolutionary War, "parties in England were as angry as in America. Wilkes and Junius agitated king, ministry, parliament, and nation." 10 The Works of John Adams, supra note 7, at 202 (1856).
273. In a letter to John Taylor in 1814, Adams mentioned Wilkes's being interrupted when writing an edition of the North Briton and attributed to Wilkes this comment: "I have been studying these four hours to see how near I could come to treason without committing it." 6 The Works of John Adams, supra note 7, at 490 (1851).
274. Wilkes was viewed by Americans as a friend of liberty and his name was known. Indeed, numerous towns and places were named after him (and Lord Camden). See, e.g., Amar, First Principles, supra note 22, at 65-66 (recounting locations).
275. Letter to Abigail Adams, June 6, 1774, in Familiar Letters of John Adams and His Wife Abigail Adams During the Revolution 4 (Charles F. Adams ed, 1876).
276. 2 The Works of John Adams, supra note 7, at 50 n.* (1850).
277. For an overview of his early readings and influences, see 1 Legal Papers of John Adams, supra note 86, at liv-lvi, lxxiv-lxxvii.
278. He was an avid reader and commented often about the course of his legal and other studies. For example, as a young lawyer, Adams borrowed Hale's treatise from Otis and reported that he had read it three times. I Diary and Autobiography of Adams, supra note 101, at 169, 173.
279. He wrote that he had "read a Multitude of Law Books," including Coke, Hawkins's Pleas of the Crown, and others. Id. at 173.
280. E.g., 1 Diary and Autobiography of Adams, supra note 101, at 220 (diary entry for August 1,1761) (maintaining that the "English Constitution is founded, tis bottomed And grounded on the Knowledge and good sense of the people" and that the "very Ground of our Liberties, is freedom of Elections," but to decide who to elect, a person's mind has to be "opened and enlarged by Reading"); id. at 337 (diary entry for January 30, 1768) (observing that he had spent a great deal of money collecting a library but observing that "it is only a means, an Instrument" and pondering how he would use it).
281. The Boston Public Library has digitized many of his books and catalogues all of them at The John Adams Library, Boston Public Library, http://www.johnadamslibrary.org.
282. His deep knowledge of the law and utilization of extensive citations to authority to support his views are illustrated in papers he wrote in 1773 on the independence of judges and on the rights of the province of Massachusetts. See 1 Papers of John Adams, supra note 106, at 252-345 (Robert J. Taylor ed, 1977).
283. As a young attorney at their first meeting, Gridley grilled Adams on what law books Adams had read. See 1 Diary and Autobiography of Adams, supra note 101, at 54-55. Later, Adams joined a club that Gridley formed to read and discuss books on law and other subjects. Id. at 251-55.
284. For an examination of colonial knowledge of treatises discussing search and seizure principles, see generally Cuddihy, supra note 15, at 188-90, 552-54. For a summary of the treatment of the general warrant in the major treatises of the era, see id. at 268-73,28-83.
285. Adams had all four volumes of Blackstone's Commentaries. He had the third edition of volume 1, published in 1767. See The John Adams Library, Boston Public Library, http://www.jolinadamslibrary.com/search/books/?author= blackstone. There is little doubt when Adams obtained his copy of volume 4 of Blackstone, given that Adams is listed as one of the subscribers to the American printing, dated 1771-72. Id.
286. That volume is particularly notable for citing Money v. Leach as support for Blackstone's assertion that general warrants were illegal. 4 William Blackstone, Commentaries *288 n.i.
287. In his diary on June 7,1771, Adams recounts a conversation where he suggested to a person that he purchase a copy of Blackstone to further his legal knowledge. 2 The Works of John Adams, supra note 7, at 271 (1850).
288. Adams owned the three-volume seventh edition, published in 1762, and volume 4 of the tenth edition, published in 1766. See The John Adams Library, Boston Public Library, www.johnadamslibrary.org/search/books/?author=burn.
289. Adams, for example, cited Burns in 1773. See 1 Papers of John Adams, supra note 106, at 295, 303 n.2 (Robert J. Taylor ed, 1977).
290. See The John Adams Library, Boston Public Library, www.johnadamslibrary. org/search7booW?author=Coke.
291. Adams repeatedly referenced reading Coke. E.g., 1 Diary and Autobiography of Adams, supra note 101, at 133, 158, 174, 253, 273;
292. The Works of John Adams, supra note 7, at 103 (1850) (diary entry for November 26, 1760);
293. The Works of John Adams, supra note 7, at 142-46, 160-65 (1851) (papers written in 1774);
294. Papers of John Adams, supra note 106, at 258, 262 (Robert J. Taylor ed, 1977) (on the independence of judges, written in 1773).
295. In a letter to Jonathan Mason, Jr., on August 21, 1776, he requested Mason to "pursue my Lord Coke" and urged Mason, who had already read volume 1, to "study the second, third, and fourth Institutes with equal diligence. My lord Coke is justly styled the oracle of the law, and whoever is master of his writings, is master of the laws of England." 9 The Works of John Adams, supra note 7, at 432-33 (1854).
296. Adams had the 1644 edition of volume 4 of Coke's Institutes. In that volume, Coke discussed a variety of search and seizure topics, including warrants for stolen goods, the law of arrest, and under what circumstances the authorities could enter a person's home. 4 Edward Coke, Institute on the Laws of England 176-78 (1644).
297. See The John Adams Library, Boston Public Library, www.johnadamslibrary. org/book/?book=2206347Adams%2042.1%20Folio. Adams, for example, cited Dalton in 1773.
298. See 1 Papers of John Adams, supra note 106, at 295, 303 n.2 (Robert J. Taylor ed, 1977).
299. Adams had the two-volume set of Hale published in 1736 with the Latin title: Historia Placitorum Coronae. Adams's signature appears on the first volume as follows: "John Adams 1760."
300. See The John Adams Library, Boston Public Library
301. Adams had the fourth edition, dated 1762, and he signed his name inside the book. See The John Adams Library, Boston Public Library, www.johnadamslibrary.org/book/?book=2223764Adams%20111.5%20Folio.
302. In his diary, however, Adams referred to reading Hawkins in 1760. See 2 The Works of John Adams, supra note 7, at 103 (1850) (diary entry for November 26, 1760).
303. Adams, for example, cited Hawkins in 1773. See 1 Papers of John Adams, supra note 106, at 297, 303 n.3 (Robert J. Taylor ed, 1977).
304. 4 Blackstone, supra note 197, at *287-91. Blackstone's four methods were: 1. With a warrant. Blackstone cited Coke for the proposition that a justice of the peace could not issue one to "apprehend a felon upon bare suspicion" and Hale for the need to offer the justice of the peace "probability offered to him of such suspicion." Id. at 287. He added: it is fitting to examine upon oath the party requiring a warrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party, against whom the warrant is prayed. Id. (emphasis in original). Blackstone rejected general warrants: "A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for it's [sic] uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer, to judge the ground of suspicion." Id. at 288 (emphasis in original). 2. Arrests by officers without warrant. The standards for such arrests included that a constable could arrest, in the case of a felony actually committed, if the constable had "probable suspicion" as to that person. Id. at 289. 3. Arrests by private persons, Blackstone stated, could be made, inter alia, upon "probable suspicion" of the person, but the private person could not break open doors to do so. Id. at 290. 4. Upon hue and cry. The requirements included: The party raising it must acquaint the constable of the vill with all the circumstances which he knows of the felony, and the person of the felon; and thereupon the constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot: and in the prosecution of such hue and cry, the constable and his attendants have the same powers, protection, and indemnification, as if acting under the warrant of a justice of the peace. But if a man wantonly or maliciously raises a hue and cry, without cause, he shall be severely punished as a disturber of the public peace. Id. at 291.
305. See infra note 459.
306. 1 Richard Burn, The Justice of the Peace, and Parish Officer 85 (7th ed. 1762). Burn's list included: 1. "The common fame of the country; but it seems, that it ought to appear upon evidence, in an action brought for such arrest, that such fame had some probable ground." Id. 2. When the person is found in circumstances that "induce a strong presumption of guilt; as coming out of a house wherein murder hath been committed, with a bloody knife in one's hand; or being found in possession of any part of goods stolen, without being able to give a probable account of coming honestly by them." Id. 3. Flight or actions indicating a "consciousness of guilt." Id. 4. Accompanying a known offender at the time of the offense. Id. 5. "The living an idle, vagrant, and disorderly life, without having any visible means to support it." Id.
307. Id. at 86.
308. Id. at 87.
309. Id. at 88. He also noted the differences of opinion between Hale and Coke. Id. at 88-89.
310. Id. at 446.
311. Dalton, supra note 65, at 3-4.
312. Id. at 29,299-300,404.
313. Id. at 300.
314. Id. at 69.
315. Id. at 79.
316. Id. at 128-29.
317. Id. at 381-82.
318. Id. at 401-05.
319. Id. at 402.
320. Id. at 403 (emphasis in original).
321. Id. at 406.
322. Id. at 407.
323. Id.
324. Id.
325. Id. at 408.
326. 2 Hale, supra note 53, at 91-92, 111.
327. Id. at 112,114.
328. Id. at 112; see also 1 Hale, supra note 53, at 580, 584. Hale stated that the general warrant to apprehend all persons suspected of committing a crime was void and was no defense to a suit for false imprisonment. Id. at 580; 2 Hale, supra note 53, at 112. Lasson has summarized Hale's views: The party asking for the warrant should be examined under oath touching the whole matter, whether a crime had actually been committed and the reasons for his suspicion. The warrant should specify by name or description the particular person or persons' to be arrested and must not be left in general terms or in blanks to be filled in afterwards. Upon the reasoning of the first rule, Hale held that warrants to search any suspected place for stolen goods were invalid (although he admitted that there were precedents of such general warrants) and should be restricted to search in a particular place suspected, after a showing, upon oath, of the suspicion and the "probable cause" thereof, to the satisfaction of the magistrate. Lasson, supra note 3, at 35-36 (citations omitted).
329. See 1 Hale, supra note 53, at 582; 2 Hale, supra note 53, at 82, 92, 102-03, 116-17.
330. 1 Hale, supra note 53, at 579-80; 2 Hale, supra note 53, at 81-82, 85, 91-92, 103, 105, 110,150, 152. Hale recognized that the grounds to establish probable cause were "very many" and listed "common fame," hue and cry, possession of stolen goods, and association with the known robber. Id. at 81.
331. E.g., 2 Hale, supra note 53, at 85, 90.
332. Id. at 98-104.
333. Id. at 105-20,149-52.
334. See supra notes 160-81 and accompanying text.
335. See supra note 116.
336. The learning that Adams received from his collection is reflected throughout his writings. For example, in 1774 and 1775, he wrote a series of papers signed Novanglus in the Boston Gazette, which are referred to collectively as A History of the Dispute with America, from its Origin, in 1754, to the Present Time. See 4 the works of john adams, supra note 7, at 3-177 (1851). The papers are laced with copious references to historical and legal authorities.
337. Reproduced in 4-6 The Works of John Adams, supra note 7 (1851).
338. Adams's Defence drew both praise and criticism during the time that the new Constitution was being debated. See, e.g., 3 The Documentary History of the Ratification of the CoNSTrrunoN 473, 474-75 (Merrill Jensen ed, 1978)
339. [hereinafter Documentary History] (quoting Compo: To the Head of the Wrongheads of New Haven County, Connecticut Courant, Nov. 26, 1787).
340. Jefferson, for example, praised it, see 4 The Works of John Adams, supra note 7, at 579 n. 1 (1851)
341. but Madison saw little value in it, see 2 William C. Rives, History of the Life and Times of James Madison 503-04 (1870).
342. Admiralty - Revenue Jurisdiction, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 98; see also id. at 102-05.
343. Id. at 98.
344. Despite his opposition to the Acts of Trade, Adams also represented Crown officers in two cases in 1769. Adams later related that he had been asked to take the position of advocate general of the Admiralty but he declined "since he wished to be under no obligation to those whose political principles he opposed." Id. at 102-03.
345. Folger v. Sloop Cornelia, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 147;
346. cf. Quincy, supra note 83, at 450-51 (stating that Folger was removed from office in 1768 because he had voted in the Massachusetts House of Representatives for resolves favoring American manufacturers).
347. See Folger v. Sloop Cornelia, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 147.
348. Id. at 149.
349. Id. at 148-50.
350. Id. at 151.
351. Id. at 152.
352. Id. at 156.
353. Admiralty - Revenue Jurisdiction, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 98,103.
354. Id.
355. Id. at 102; see also Sewell v. Hancock, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 184-92.
356. Sewell v. Hancock, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 173.
357. Id. at 175.
358. Id. at 179.
359. Id. at 179-80.
360. Id. at 190.
361. Id.; Sewall v. Hancock, Adams' Copy of the Information and Draft of His Argument, in 2 Legal Papers of John Adams, supra note 86, at 194, 198-207;
362. see also Quincy, supra note 83, at 457-63 (reproducing Adams's notes).
363. Sewall v. Hancock, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 176.
364. Instructions of the Town of Boston to Their Representatives, 17 June, 1768, reprinted in 3 The Works of John Adams, supra note 7, at 501.
365. Id. at 503.
366. Cuddihy, supra note 15, at 590. Cuddihy cites additional authority of the period using the lack of probable cause to explain why certain notorious maritime seizures between 1761 and 1776 were unreasonable. Id. at 586-91. He observes that probable cause did not have an exact definitional content, but the controversies "had inserted 'probable cause' of seizure into the American legal vocabulary as a nebulous understanding that property could not be seized without substantial reason." Id. at 591.
367. 2 The Works of John Adams, supra note 7, app. A, at 522 (1850).
368. Id. at 525; see also supra text accompanying note 118.
369. 1 Diary and Autobiography of Adams, supra note 101, at 179.
370. Id. at 180.
371. See id.
372. See supra note 118 and accompanying text. I previously quoted that material and now highlight important aspects.
373. See, e.g., Cuddihy, supra note 15, at 185-88 (recounting numerous iterations of that principle); Davies, Original Fourth Amendment, supra note 24, at 601-03 (same).
374. Rex v. Richardson, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 396.
375. Id. at 396-97.
376. Id. at 397.
377. Id. at 397-98.
378. Id. at 398.
379. Id.
380. Id. at 398-99.
381. Id.
382. Id. at 399.
383. Id.
384. Id.
385. Id. at 399-400.
386. Id. at 400. Adams, in his diary, recounted that he attended the funeral. He remarked: "My Eyes never beheld such a funeral. The Procession extended further than can be well imagined. This [shows] there are many more Lives to spend if wanted in the Service of their Country." 1 Diary and Autobiography of John Adams, supra note 101, at 349-50 (diary entry for Feb. 26,1770, or "thereabouts").
387. Rex v. Richardson, Editorial Note, in 2 Legal Papers of John Adams, supra note 86, at 400-01.
388. Wilmot was found not guilty and Richardson was ultimately pardoned. Id. at 405-11.
389. Id. at 402.
390. Id. at 404.
391. Rex v. Richardson, Defense Counsel's Notes, in 2 Legal Papers of John Adams, supra note 86, at 411 & n.87.
392. Id. at 412. The prosecutor's notes of the arguments are similar. See Rex v. Richardson, Paine's Minutes of the Trial, in 2 Legal Papers of John Adams, supra note 86, at 422-23.
393. Rex v. Richardson, Defense Counsel's Notes, in 2 Legal Papers of John Adams, supra note 86, at 412 n.91.
394. (1605) 77 Eng. Rep. 194 (K.B.); 5 Co. Rep. 91a; see 2 Legal Papers of John Adams, supra note 86, at 412 n.92.
395. See Cuddihy, supra note 15, at 63.
396. See Hudson v. Michigan, 547 U.S. 586, 594 (2006) (referring to unannounced entries);
397. Georgia v. Randolph, 547 U.S. 103, 123 (2006) (Stevens, J, concurring) ("At least since 1604 it has been settled that in the absence of exigent circumstances, a government agent has no right to enter a 'house' or 'castle' unless authorized to do so by a valid warrant.");
398. United States v. Banks, 540 U.S. 31, 41 (2003) (referring to unannounced entries);
399. Wilson v. Layne, 526 U.S. 603, 609 (1999) ("In 1604, an English court made the now-famous observation that 'the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose."');
400. Minnesota v. Carter, 525 U.S. 83,94 (1998) (Scalia, J, concurring) ("As far back as Semayne's Case of 1604, the leading English case for that proposition .., the King's Bench proclaimed that 'the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house.'"); id. at 95 n.2 (asserting that Semayne's Case "makes clear" that '"the Sheriff may break the house, imply that at the suit of the party, the house may not be broken: otherwise the addition (at the suit of the King) would be frivolous.'"); id. at 100 (Kennedy, J, concurring) ("Read narrowly, the protections recognized in Semayne's Case might have been confined to the context of civil process, and so be of limited application to enforcement of the criminal law. Even if, at the time of Semayne's Case, a man's home was not his castle with respect to incursion by the King in a criminal matter,.. [t]he axiom that a man's home is his castle. .. has acquired over time a power and an independent significance justifying a more general assurance of personal security in one's home, an assurance which has become part of our constitutional tradition.");
401. Wilson v. Arkansas, 514 U.S. 927,931-32 (1995) (citing Semayne's Case for the proposition that a man's home is his castle and to support knock and announce rule);
402. Pembaur v. City of Cincinnati, 475 U.S. 469, 488 n.3 (1986) (the home is a castle);
403. Steagald v. United States, 451 U.S. 204, 217-20 (1981) (discussing whether Semayne's Case permitted forcible entry of third person's home to arrest suspect but that the home remained a castle for residents); id. at 228-29 (Rehnquist, J, dissenting) (discussing Semayne's Case and arguing that arrest warrant permitted entry into third person's home to effectuate arrest);
404. Payton v. New York, 445 U.S. 573 (1980) (extensive debate between the majority and dissent over whether Semayne's Case permitted a warrantless arrest of a person in his or her own home);
405. Ker v. California, 374 U.S. 23,47-48 (1963) (Brennan, J, dissenting in part) (citing it for recognition of a requirement to knock and announce);
406. Miller v. United States, 357 U.S. 301, 308-09 (1958) (same).
407. Semayne's Case, 11 Eng. Rep. at 195.
408. Id.
409. Bowles v. Bury, (1616) 77 Eng. Rep. 1252 (K.B.) 1258; 11 Co. Rep. 79, 82.
410. Rex v. Richardson, Defense Counsel's Notes, in 2 Legal Papers of John Adams, supra note 86, at 412 n.93 (quoting Bowles, 11 Co. Rep. at 82).
411. King v. Stewart, Editorial Note, in 1 Legal Papers of John Adams, supra note 86, at 106.
412. Id.
413. Id. at 106-07.
414. Id. at 107.
415. King v. Stewart, Adams' Minutes of the Review, in 1 Legal Papers of John Adams, supra note 86, at 137.
416. Id.
417. Id. at 87; see also Cuddihy, supra note 15, at 563-69 (providing additional details about the litigation and asserting that the litigation "defined Massachusetts as the first jurisdiction to complete the transition from general to specific warrants").
418. Bassett v. Mayhew, Editorial Note, in 1 Legal Papers of John Adams, supra note 86, at 87-90.
419. Id. at 89.
420. Id.
421. Id.
422. Id.
423. Id. at 89-90.
424. Cuddihy, supra note 15, at 565. 309. Id. at 567; Bassett v. Mayhew, Editorial Note, in 1 Legal Papers of John Adams, supra note 86, at 90.
425. Bassett v. Mayhew, Editorial Note, in 1 Legal Papers of John Adams, supra note 86, at 90.
426. Id. at 91.
427. Id.
428. Id. at 99 nn.59-63.
429. Id. at 99.
430. Bassett v. Mayhew, Paine's Minutes of the Referees' Hearing, in 1 Legal Papers of John Adams, supra note 86, at 101-05.
431. Id. at 105.
432. Cuddihy, supra note 15, at 569.
433. See id. at 566-69.
434. Among Adams's notes from that Congress is this reference to a speech by Lee: "Life, and liberty which is necessary for the security of life, cannot be given up when we enter into society." Notes of John Adams, Sept. 8, 1774, in The Spirit of 'Seventy-Six 51, 52 (Henry Steele Commager & Richard B. Morris eds, 1958).
435. Cuddihy, supra note 15, at 543-44 (citing sources).
436. Id. at 544 (citing sources); see also id. at 779-80 (arguing that Professor Davies's characterization of these addresses as referring to writs of assistance is inaccurate and asserting that Congress was referring to actions that did not require writs);
437. Diary and Autobiography of Adams, supra note 101, at 147 (Adams writing in his diary on October 4,1774, that Lee showed him the address to the People of Canada).
438. See Cuddihy, supra note 15, at 603-13.
439. The Virginia, Maryland, and North Carolina constitutions only addressed and abolished general warrants. See Va. Const, of 1776, Bill of Rights § 10, reprinted in Sources of Our Liberties 311,312 (Richard L. Perry & John C. Cooper eds, 1960);
440. Md. Const, of 1776, A Declaration of Rights § 23, reprinted in Sources of Our Liberties, supra, at 346, 348;
441. N.C. Const, of 1776, A Declaration of Rights § 11, reprinted in Sources of Our Liberties, supra, at 355, 355;
442. see also infra note 346 (reproducing the Virginia provision). Pennsylvania offered a somewhat broader provision. Its statement of rights, Section 10, provided: That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmation first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search in suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted. Pa. Const, of 1776, Declaration of the Rights of the Inhabitants of the Commonwealth, or State of Pennsylvania § 10, reprinted in Sources of Our Liberties, supra, at 328,330. The first clause of this provision, although declaring the broader principle of freedom from searches and seizures, arguably served only as a premise for condemning general warrants, which were the only abuses prevented. Vermont adopted a constitution in 1777 with a search and seizure provision nearly identical to Pennsylvania's but Vermont was not admitted into the Union until 1791. See Vt. Const, of 1777, reprinted in Sources of Our Liberties, supra, at 358, 366. With the exceptions of New Hampshire and Massachusetts, the remaining states did not address searches and seizures at all in constitutions they adopted. See, e.g.
443. Some other legal restraints were also adopted. For example, New Jersey passed a statute in 1782 to prevent illegal trade with the enemy. The act provided for the issuance of search and seizure warrants "as in the case of stolen Goods" by judges upon application made if "due and satisfactory Cause of Suspicion shewn," and made upon written oath or affirmation, that goods are concealed in a house or other building. Quincy, supra note 83, at 508-09 n.l 1 (quoting Statute of June 24,1782, c. 317). In 1787, Connecticut recognized that general search warrants were illegal at common law. See Frisbie v. Butler, 1 Kirby 213, 215 (Conn. 1787).
444. See generally 3 Adams Family Correspondence 225-28 n.3 (L.H. Butterfield & Marc Friedlaender eds, 1963) (summarizing how Adams came to be the sole drafter). New Hampshire duplicated the Massachusetts provision in its bill of rights in 1784.
445. N.H. Const. of 1784, art. I, § 19, reprinted in Sources of Our Liberties, supra note 323, at 382, 384.
446. For an excellent treatment of the evolution of the treatment of Article 14 by Massachusetts courts, see Joseph A. Grasso, Jr., "John Adams Made Me Do It": Judicial Federalism, Judicial Chauvinism, and Article 14 of the Massachusetts' Declaration of Rights, 77 Miss. L.J. 315 (2007).
447. The sole change made to Adams's draft was to substitute the word "subject" for "man." 8 Papers of John Adams, supra note 106, at 263 nn.23-24.
448. Mass. Declaration of Rights of 1780, art. xrv", reprinted in Lasson, supra note 3, at 82 n.15.
449. E.g., 2 Diary and Autobiography of Adams, supra note 101, at 391 (Adams's diary entry for June 23, 1779, which disparages the Pennsylvania Constitution and notes that the Pennsylvania Declaration of Rights had been "taken almost verbatim" from Virginia's);
450. Letter from John Adams to Benjamin Rush (Sept. 10, 1779), in 8 Papers of John Adams, supra note 106, at 140 (stating that he had "many fine Examples" of other constitutions to examine in preparing the Massachusetts draft). I have found no record of Adams explicitly discussing how other search and seizure provisions influenced his draft. Nonetheless, as discussed in text, there are obvious influences.
451. See Mass. Declaration of Rights of 1780, supra note 326.
452. Id.
453. There appear to be only a few isolated comments by Adams about any aspect of the Massachusetts Constitution. See, e.g., 9 The Works of John Adams, supra note 7, at 505-09 (1854) (noting three letters written between 1779 and 1780).
454. Jonathan Elliot, 5 Debates on the Adoption of the Federal CoNSTrruTioN 538 (Ayer Co, Publishers, Inc. reprint ed. 1987) (1845) (quoting George Mason).
455. See id.
456. See, e.g., David O. Stewart, The Summer of 1787, at 51 (2007) (discussing the "strict" adherence to the code of silence by the delegates).
457. Letter from John Adams to Thomas Jefferson (Nov. 10, 1787), in 1 The Adams-Jefferson Letters 210 (Lester J. Cappon ed, 1959).
458. Id. Although Jefferson did not reply directly on this point to Adams, he did write to Madison on December 20, 1787, that "no just government should refuse" a bill of rights. Stewart, supra note 333, at 227, 327 (quoting the letter);
459. Letter from John Adams to Cotton Tufts (Jan. 23, 1788), in 5 Documentary History, supra note 237, at 778 (John P. Kaminski & Gaspare J. Saladino eds, 1998) (affirming support for the Constitution but indicating a need for future amendments);
460. Letter from John Adams to Cotton Tufts (Feb. 12, 1788), in 4 Documentary History, supra note 237, at 212 n.4 ("[A] Declaration of Rights I wish to see with all my Heart.").
461. Cuddihy, supra note 15, at 671-72 (citations omitted). Lee's proposal in full read: "That the Citizens shall not be exposed to unreasonable searches, seizure of their persons, houses, papers, or property." 2 The Letters of Richard Henry Lee 442 n.l (James Curtis Ballagh ed, 1914);
462. see also 8 Documentary History, supra note 237, at 653 (John P. Kaminski & Gaspare J. Saladino eds, 1998) (same with minor stylistic changes).
463. In a letter to Mason from Richard Henry Lee, dated October 1, 1787, Lee commented on the proceedings in the confederation Congress and how it had sent the proposed Constitution without change to the States despite his attempts to amend it. He sent Mason a copy of his proposed amendments. Lee suggested to Mason that Virginia and other states join in creating amendments and approving the Constitution with the amendments. Letter from Richard Henry Lee to George Mason (Oct. 1, 1787), in 2 The Letters of Richard Henry Lee, supra note 336, at 438-40.
464. A similar letter was sent to Samuel Adams, Elbridge Gerry, and numerous other influential men. See Letter from Richard Henry Lee to Samuel Adams (Oct. 5,1787), in 2 The Letters of Richard Henry Lee, supra note 336, at 444-47.
465. Lee's proposal was widely disseminated and "responses to Lee's letter and amendments were voluminous." 19 Documentary History, supra note 237, at 463 (John P. Kaminski & Gaspare J. Saladino eds, 2003).
466. Lee's proposed amendment is linguistically broader than the initial views of the writer of a pamphlet that gained widespread circulation, Letters of a Federal Farmer. In letter number 4, dated October 12, 1787, the writer complained that several essential rights were omitted, including "freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men's papers, motions mrougnoui me states. ine omission 01 a dih 01 ngnts was a significant criticism of the proposed Constitution, but the surviving records property and persons." Letter from the Federal Farmer no. 4, in Neil H. Cogan, Contexts of the Constitution 706, 710 (1999).
467. However, in letter number 6, dated December 25, 1787, the writer listed among the "unalienable or fundamental rights in the United States" that "he is subject to no unreasonable searches or seizures of his person, papers or effects." Letter from the Federal Farmer no. 6, in 17 Documentary History, supra note 237, at 274 (John P. Kaminski & Gaspare J. Saladino eds, 1995). Giving more detail, in letter number 16, dated January 20, 1788, the writer stated: [Tjhat all persons shall have a right to be secure from all unreasonable searches and seizures of their persons, houses, papers, or possessions; and that all warrants shall be deemed contrary to this right, if the foundation of them be not previously supported by oath, and there be not in them a special designation of persons or objects of search, arrest, or seizure: and that no person shall be exiled or molested in his person or effects, otherwise than by the judgment of his peers, or according to the law of the land.
468. Letter from the Federal Farmer no. 16, in Cogan, supra, at 717, 722. Some have attributed the Letters to Lee but others have doubted that attribution.
469. See, e.g., 14 Documentary History, supra note 237, at 15-16 (John P. Kaminski & Gaspare J. Saladino eds, 1983). Lee was elected to the Senate after ratification of the Constitution and was a champion of amendments in the Senate.
470. See 1 Richard H. Lee, Memoir of the Life of Richard Henry Lee 240-41 (1825).
471. Lee's memoir and correspondence reflect some broader knowledge of search and seizure developments and related matters. In 1767, he received a letter from his brother, who made reference to the attempts to destroy Wilkes, to brand Wilkes with seditious libel, and of meeting Wilkes. Lee's brother also sent him a copy of the North Briton. Id. at 56-62. In 1774, as a delegate to the Continental Congress, Lee was on the committee with John Adams that drafted an address to the King regarding American grievances. Id. at 111-16. He also drafted the letter to the people of Quebec, which referenced arbitrary British search and seizure practices. See 1. J. Continental Cong. 104-05 (1774).
472. Lee, as delegate to the Continental Congress in 1776, drafted the resolution calling for independence. See 1 Lee, supra, at 170. Adams and Lee were frequent correspondents. In a letter dated November 15, 1775, Adams shared with him his outline of his plan for government. Letter from John Adams to Richard Henry Lee (Nov. 15,1775), in 4 The Works of John Adams, supra note 7, at 185-87 (1851).
473. In an interesting letter to John Adams on October 8, 1779, Lee stated that he was "much interested in the establishment of a wise and free republic in Massachusetts Bay" and expressed his desire to "finish the remainder of my days" in Massachusetts. Letter from Richard Henry Lee to John Adams (Oct. 8, 1779), in 2 The Letters of Richard Henry Lee, supra note 336, at 155.
474. On September 10, 1780, Lee wrote to Adams regarding his reading the draft of the Massachusetts constitution. 10 Papers of John Adams, supra note 106, at 141-42.
475. See generally Documentary History, supra note 237.
476. See generally Lasson, supra note 3, at 83-100 (summarizing numerous letters).
477. The argument against a Bill of Rights was straightforward: it was not needed. One delegate to the Pennsylvania ratifying convention stated the position succinctly: "What occasion for a bill of rights when only delegated powers are given? One possessed of 1000 acres, conveys 250. Is it necessary to reserve the 750?' Delegate Thomas McKean (Dec. 10, 1787), in 2 Documentary History, supra note 237, at 546-47 (Merrill Jensen ed, 1976).
478. Similar comments, although perhaps more artfully stated, were repeatedly made. See, e.g., Anti-Cincinnatus, Hampshire Gazette (Dec. 19,1787)
479. reprinted in 5 Documentary History, supra note 237, at 488 (John P. Kaminski & Gaspare J. Saladino eds, 2000) (discussing such views);
480. Remarker, Indep. Chron. (Dec. 27, 1787), reprinted in 5 documentary history, supra note 237 at 527,529; Lasson, supra note 3, at 88-91.
481. For representative rejoinders by the Anti-Federalists, see Vox Populi, Mass. Gazette (Nov. 16, 1787)
482. reprinted in 4 Documentary History, supra note 237, at 251-52 (John P. Kaminski & Gaspare J. Saladino eds, 1997);
483. see also Portius, Am. Herald (Nov. 12, 1787)
484. reprinted in 4 Documentary History, supra note 237, at 216-18. The sentiments of those concerned with the absence of a bill of rights were well summed up by "One of the Common People," writing in the Boston Gazette, on Dec. 3, 1787. After rebutting the claim of another essayist that a bill was not needed because the Constitution was a limited grant of authority to the Federal government, the writer concluded: I sincerely believe if the federal constitution which shall be given, be clearly defined, and a boundary line be marked out, declaratory of the extent of their jurisdiction, of the rights which the state hold unalienable, and the privilege which the citizens thereof can never part with, the republick of America will last for ages, and be free.
485. See One of the Common People, Boston Gazette (Dec. 3, 1787)
486. reprinted in 4 Documentary History, supra note 237, at 367-69 (emphasis in original).
487. See, e.g., Davies, Original Fourth Amendment, supra note 24, at 610-11.
488. See Cuddihy, supra note 15, at 673-80, 686-91 (summarizing the pamphlets and essays). A notable exception was a "revised" constitution drafted by "The Society of Western Gentlemen." In early 1788, those Anti-Federalists circulated a draft constitution that included the following provision: Every person has a right to hold himself, his house, papers, and possessions free from search or seizure, therefore general warrants to seize any person of his property, without evidence of an act committed, and a particular description of his offence, are grievous and oppressive and ought not to be granted.
489. 9 Documentary History, supra note 237, at 773 (John P. Kaminski & Gaspare J. Saladino eds, 1990). The draft was published in April and May of 1788 in the Virginia Independent Chronicle. Id. at 769-70.
490. Anti-Federalist attacks included the claim that general search warrants would be permitted. See, e.g., Lasson, supra note 3, at 88 n.36, 93-94; see also Essay of Brutus No. 2, reprinted in Cogan, supra note 337, at 715;
491. Indep. Gazetteer (Oct. 6,1787)
492. reprinted in 2 Documentary History, supra note 237, at 172 (Merrill Jensen ed, 1976);
493. Indep. Gazetteer (Oct. 5,1787)
494. reprinted in 13 Documentary History, supra note 237, at 329-37 (John P. Kaminski & Gaspare J. Saladino eds, 1981);
495. Centinel II, Phila. Freeman's J. (Oct. 24, 1787)
496. reprinted in 13 Documentary History, supra note 237, at 457-68;
497. A Son of Liberty, N.Y.J. (Nov. 8, 1787)
498. reprinted in 13 Documentary History, supra note 237, at 481. One interesting criticism was written by Mercy Otis Warren, who was James Otis's sister: There is no provision by a bill of rights to guard against the dangerous encroachments of power in too many instances to be named: but I cannot pass over in silence the insecurity in which we are left with regard to warrants unsupported by evidence - the daring experiment of granting writs of assistance in a former arbitrary administration is not yet forgotten in the Massachusetts; nor can we be so ungrateful to the memory of the patriots who counteracted their operation, as so soon after their manly exertions to save us from such a detestable instrument of arbitrary power, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure.
499. Mercy Otis Warren, Observation on the Constitution (Feb. 1788)
500. reprinted in 2 Birth of the Bill of Rights: Encyclopedia of the Antifederalists 143 (Jon L. Wakelyn ed, 2004) [hereinafter Birth of the Bill of Rights] (emphasis in original).
501. Warren published the pamphlet under the name "A Columbian Patriot," and it was for a long time thought to have been written by Eldridge Gerry. See 1 Birth of the Bill of Rights, supra, at 73.
502. Warren's tract appears to be the only reference to Otis and the writs of assistance made during the period when the Constitution and proposed amendments were being debated. See Amar, supra note 183, at 76. 344. See, e.g., An Old Whig V, Phila. Indep. Gazetteer (Nov. 1,1787)
503. reprinted in 13 Documentary History, supra note 237, at 541 (John P. Kaminski & Gaspare J. Saladino eds, 1981) (expressing view that, without a Bill of Rights, no persons' "houses and papers [would be] free from seizure and search upon general suspicion or general warrants");
504. Brutus II, N.Y.J. (Nov. 1, reprinted in 19 Documentary History, supra note 237, at 135 (John P. Kaminski & Gaspare J. Saladino eds, 2003) (arguing that a bill of rights was necessary because of the power of the central government of "granting search warrants, and seizing persons, papers, or property").
505. "New officers may be created, the duties of which you would shudder to hear named. - Your houses may cease to be your castles - the most unreasonable searches may be made on you, your papers, &c. &c." To the Convention of Massachusetts, Am. Herald (Jan. 14, 1788)
506. quoted in 5 Documentary History, supra note 237, at 711 (John P. Kaminski & Gaspare J. Saladino eds, 1998).
507. Compare Va. Indep. Chron. (Nov. 28, 1787)
508. reprinted in 8 Documentary History, supra note 237, at 177, 178 (John P. Kaminski & Gaspare J. Saladino eds, 1988) (arguing that there should be no concern about the federal government collecting excise taxes, given that Pennsylvania had long used such taxes and, in executing such taxes, "[n]o man's house was broke open. The rights and properties of the people were not outraged").
509. with The Impartial Examiner I, Va. Indep. Chron. (Feb. 27, 1788), reprinted in 8 Documentary History, supra note 237, at 420, 422 (arguing that the "new species of authority.. may warrant the most flagrant violations of the sacred rights of habitation" in pursuit of excise taxes).
510. See also Luther Martin: Genuine Information VI, Balt. Md. Gazette (Jan. 15, 1788)
511. reprinted in 15 Documentary History, supra note 237, at 377 (John P. Kaminski & Gaspare J. Saladino eds ( 1984) ("By the power to lay excises, a power very odious in its nature, since it authorises officers to go into your houses, your kitchens, your cellars, and examine into your private concerns, the Congress may impose duties on every article of use or consumption." (emphasis in original));
512. A Son of Liberty, N.Y.J. (Nov. 8, 1787)
513. reprinted in 19 Documentary History, supra note 237, at 135 (John P. Kaminski & Gaspare J. Saladino eds, 2003) (arguing that, under the new Constitution, "[ejxcise laws established, by which our bed chambers will be searched by brutal tools of power, under pretence, that they contain contraband or smuggled merchandize, and the most delicate part of our families, liable to every species of rude or indecent treatment, without the least prospect, or shadow of redress, from those by whome they are commissioned"). Concern about the scope of searches to enforce excise taxes was longstanding. See, e.g., Cuddihy, supra note 15, at 300-02. The concerns expressed were particularly acute when the states were debating the proposed Constitution in 1787 to 1788. See, e.g., id. at 678-79, 742 n.272;
514. see also 22 Documentary History, supra note 237, at 1710-11 (John P. Kaminski & Gaspare J. Saladino eds, 2008).
515. Robert Whitehill's numerous comments and speeches at the Pennsylvania convention were some of the broader observations. They included: "Houses may be broke open by officers of the general government." Robert Whitehill, Speech at Pennsylvania Convention (Dec. 7, 1787)
516. reprinted in 2 Documentary History, supra note 237, 514 (Merrill Jensen ed, 1976).
517. John De Witt IV, Am. Herald (Nov. 19, 1787)
518. reprinted in 4 Documentary History, supra note 237, at 269-70 (John P. Kaminski & Gaspare J. Saladino eds, 1997).
519. Id. at 270.
520. Id.
521. The list is in 1 Elliot, supra note 331, at 319-37 (1836).
522. See, e.g., 19 Documentary History, supra note 237, at 294-96 (John P. Kaminski & Gaspare J. Saladino eds, 1995) (discussing that strategy for New York).
523. Rhode Island, which ratified the Constitution on May 29, 1790, requested the following amendment: That every person has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore, that all warrants to search suspected places, to seize any person, his papers, or his property, without information upon oath or affirmation of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted. 1 Elliot, supra note 331, at 335 (1836). The design of the Rhode Island proposal was virtually the same as New York's, with the main difference being the substitution of "person" for New York's "freeman." 354. The absence of a bill of rights was a significant topic of debate at the Pennsylvania ratifying convention. See, e.g., 2 Elliot, supra note 331, at 436-38, 454, 489-90 (1836).
524. As to searches and seizures, Robert Whitehill on December 8, 1787, argued that the proposed Constitution offered "no security .. for people's houses or papers" and that "[t]he case of Mr. [John] Wilkes, and the doctrine of general warrants show that judges may be corrupted." Notes of James Wilson's of the Pennsylvania Ratification Convention (Dec. 8, 1787)
525. reprinted in 2 Documentary History, supra note 237, at 526 (Merrill Jensen ed, 1976).
526. He added: "A wicked use may be made of search warrants." Id A few days later, Whitehill proposed the following as part of a bill of rights: That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.
527. Notes of Alexander J. Dallas (Dec. 12,1787), reprinted in 2 Documentary History, supra note 237, at 597;
528. see also Pennsylvania and the Federal Constttution 421 (John B. McMaster & Frederick D. Stone eds, 1888). The convention rejected Whitehill's proposal and then ratified the Constitution. Id at 422-23.
529. The dissenters thereafter widely circulated their reasons for rejecting
530. A committee formed by the Maryland convention to consider amendments drafted the following proposal: That all warrants without oath, or affirmation of a person conscientiously scrupulous of taking an oath, to search suspected places, or seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any person suspected, without naming or describing the place or the person in special, are dangerous, and ought not to be granted. Address to the People of Maryland (Apr. 21, 1788), in 2 Elliot, supra note 331, at 551 (1836). That proposal tracks closely the Maryland Constitution, Declaration of Rights provision of the time period, which remains unchanged to this day as Article 26.
531. See, e.g., Thomas K, Clancy, A Vision of Search and Seizure Protection, 34 Md. Bar J. 11 (2001) (describing textual limitations of Maryland's search and seizure provision). The report of the Maryland convention states: This amendment was considered indispensible by many of the committee; for, Congress having the power of laying excises, (the horror of a free people,) by which our dwelling houses, those castles considered so sacred by the English law, will be laid open to the insolence and oppression of office, there could be no constitutional check provided that would prove so effectual a safeguard to our citizens. General warrants, too, the great engine by which power may destroy those individuals who resist usurpation, are also hereby forbidden to those magistrates who are to administer the general government Address to the People of Maryland, in 2 Eluot, supra note 331, at 551-52 (1836). Despite these sentiments, the committee chose not to submit any proposed amendments to the Maryland convention. Id. at 555.
532. Existing records indicate that there was also some concern expressed about the "power of excise officers to search and seize." Samuel Chase, Notes of Speeches Delivered to the Maryland Ratifying Convention, in 2 Birth of the Bill of Rights, supra note 343, at 197;
533. see also John Francis Mercer, Essays by a Farmer, I, in 2 Birth of the Bill of Rights, supra note 343, at 191 (noting that, in England, it had become a maxim that juries would return "ruinous damages" for customs searches, although acknowledging that the damages were frequently paid by the government "upon a certificate of the judge that there was probable cause of suspicion").
534. The journal notes of the Massachusetts ratification debates indicate that amendments were proposed on January 31, 1788, by John Hancock. See 6 Documentary History, supra note 237, at 1116-21,1380-83 (John P. Kaminski & Gaspare J. Saladino eds, 2000). Those amendments did not include a search and seizure provision. On February 2, 1788, a committee was appointed to consider Hancock's amendments. Id. at 1405-06. It reported back on February 6. On that date, a motion was made to amend the committee report to add a provision that provided, inter alia, that the Constitution never be construed "to subject the people to unreasonable searches & seizures of their persons, papers, or possessions." Id at 1453. That motion was defeated. Id. One of the delegates, Jeremy Belknap, took notes of the proceedings that day. He wrote that Samuel Adams proposed an amendment for "Protection of Persons & Property from Seizure &c," but that Adams subsequently withdrew the motion. Nonetheless, according to Belknap, another delegate renewed the motion, which was defeated (with even Samuel Adams voting against it). Id. at 1490. Massachusetts thereafter ratified the Constitution without a search or seizure provision as a recommended amendment Id at 1469-71.
535. The convention had produced other requests for a bill of rights modeled on the Massachusetts Declaration of Rights, id at 1450, including a reference to Article 14, that is, that the framers of the Massachusetts constitution had taken "particular care to prevent the [legislature] from authorizing the judicial authority to issue a warrant against a man for a crime, unless his being guilty of the crime was supported by oath or affirmation, prior to the warrants being granted," Speech of Abraham Holmes at the Convention Debates (Jan. 30,1788), reprinted in 6 Documentary History, supra note 237, at 1368 (John P. Kaminski & Gaspare J. Saladino eds, 2000).
536. See 9 Documentary History, supra note 237, at 897-900.
537. 3 The Papers of George Mason, supra note 151, at 1068.
538. Mason acted as chair of the group. See Letter from Patrick Henry to John Lamb (June 9, 1788), in 9 Documentary History, supra note 237, at 817 (John P. Kaminski & Gaspare J. Saladino eds, 1990). During the Virginia convention, as he had at the Federal convention, Mason was a strong proponent of amendments to the Constitution.
539. See, e.g., 3 The Papers of George Mason, supra note 151, at 1062-68. Mason composed a list of objections to the Constitution, listing inter alia, the absence of a "Declaration of Rights." Id. at 991. Mason's Views Became Well Known, with Mason Sending His List to Many Influential Men.
540. See generally 8 Documentary History, supra note 237, at 40-42 (John P. Kaminski & Gaspare J. Saladino eds, 1988).
541. That list included Elbridge Gerry, Letter to Elbridge Gerry from George Mason (Oct. 8, 1787), in 3 The Papers of George Mason, supra note 151, at 1005-06;
542. Thomas Jefferson, Letter to Thomas Jefferson from George Mason (May 26, 1788), in 3 The Papers of George Mason, supra note 151, at 1045;
543. and George Washington, Letter to George Washington from George Mason (Oct. 7, 1787), in 3 The Papers of George Mason, supra note 151, at 1001.
544. Washington, in turn, sent the list to James Madison. Id. at 1002. Washington also had a copy of Lee's objections to the Constitution and observed that Lee's and Mason's "political tenants" were "always in unison." Letter from George Washington to James Madison (Oct. 10,1787), quoted in 3 The Papers of George Mason, supra note 151, at 1002.
545. Notably absent from Mason's list was any reference to searches and seizures. 3 The Papers of George Mason, supra note 151, at 991.
546. It is unknown who drafted the recommended amendment sent to Congress by the Virginia ratifying convention. Some maintain that Mason probably drafted it. E.g., Cuddihy, supra note 15, at 684-85 (arguing that Mason probably drafted the provision); see also Kate M. Rowland, 2 The Life of George Mason 444 (1892) (making the same argument and noting that the original manuscript is in the handwriting of Mason);
547. Documentary History, supra note 237, at 43, 63 (John P. Kaminski & Gaspare J. Saladino eds, 1995) (reproducing the draft and noting editorial changes in Mason's hand). There is, however, reason to doubt that Mason was the drafter. Mason's proposed amendments to the Constitution, circulated by him prior to the Virginia ratifying convention, did not include a search and seizure provision.
548. Also, although Mason was the primary drafter of the Virginia Declaration of Rights in 1776, the general warrant provision was added by the convention; Mason disclaimed being the author and dismissed it as "not of fundamental nature." Sources of Our Liberties, supra note 323, at 302 n.8;
549. see also 1 The Papers of George Mason, supra note 151, at 290.
550. The authorship of the general warrant provision of the Virginia constitution is also unknown. See 1 The Papers of George Mason, supra note 151, at 279, 286.
551. The evolution of the language of the Virginia Declaration of Rights is detailed in 1 The Papers of George Mason, supra note 151. Mason's initial draft made no reference to searches and seizures, with the exception of a note that it was "agreed to in committee condemning the use of general warrants." Id. at 278. A later draft also referred only to general warrants, see id. at 284, as did the final form, quoted in the text below, infra text accompanying note 368.
552. See also 1 The Papers of George Mason, supra note 151, at 288. Edmond Randolph later stated that the Virginia provision had been inspired by the seizure of Wilkes's papers in England under a general warrant. See id. at 290.
553. 3 The Papers of George Mason, supra note 151, at 1070.
554. It is also quoted in 3 Elliot,supra note 331, at 658 (1836).
555. See Letter from Patrick Henry to John Lamb (June 9, 1788), in William Wirt Henry, 2 Patrick Henry: Life, Correspondence and Speeches 342-43 (1891) (discussing how George Mason had agreed to act as chair of the Anti-Federalist group and that they had drafted amendments and a bill of rights that the group intended to introduce).
556. Patrick Henry, Debates, The Virginia Convention (June 5, 1788), in 9 Documentary History, supra note 237, at 963 (John P. Kaminski & Gaspare J. Saladino eds, 1990).
557. George Mason, on June 11, struck a similar theme: "And as to excises - This will carry the exciseman to every farmer's house who distills a little brandy, where he may search and ransack as he pleases." George Mason, Debates, The Virginia Convention (June 11, 1788), in 9 Documentary History, supra note 237, at 1157 (John P. Kaminski & Gaspare J. Saladino eds, 1990).
558. Patrick Henry, Debates, The Virginia Convention (June 16, 1788), in 10 Documentary History, supra note 237, at 1301 (John P. Kaminski & Gaspare J. Saladino eds, 1993).
559. Id. at 1331-32 (footnote omitted).
560. Edmund Randolph, Debates, The Virginia Convention (June 17, 1788), in 10 Documentary History, supra note 237, at 1351-52 (John P. Kaminski & Gaspare J. Saladino eds, 1993).
561. Patrick Henry, Debates, The Virginia Convention (June 24, 1788), in 10 Documentary History, supra note 237, at 1474-75 (John P. Kaminski & Gaspare J. Saladino eds, 1993).
562. See Edmund Randolph, Debates, The Virginia Convention (June 24, 1788), in 10 Documentary History, supra note 237, at 1484 (John P. Kaminski & Gaspare J. Saladino eds, 1993).
563. 3 The Papers of George Mason, supra note 151, at 1119;
564. see also 10 Documentary History, supra note 237, at 1515, 1550-52 (John P. Kaminski & Gaspare J. Saladino eds, 1993).
565. Va. Const, of 1776, Bill of Rights § 10, in Sources of Our Liberties, supra note 323, at 312.
566. See supra note 336.
567. During the course of the Virginia convention, there were general references to the Massachusetts Constitution but I have found no specific reference to Article 14. E.g., 10 Documentary History, supra note 237, at 1268-69,1380 (John P. Kaminski & Gaspare J. Saladino eds, 1993).
568. 3 The Papers of George Mason, supra note 151, at 1071; see also Cuddihy, supra note 15, at 703 n.121 (citing sources for the transmission of the Virginia proposal to New York). There were extensive contacts between the Anti-Federalists in New York, Virginia, and other states during the period that the Constitution was before the states for ratification, and there were allegations that they were working in conceit.
569. See, e.g., 9 Documentary History, supra note 237, at 788-90, 811-13 (John P. Kaminski & Gaspare J. Saladino eds, 1990). The Virginia Anti-Federalists sent their amendments to New York on June 9, 1788. Id. at 813, 817-20.
570. See generally 22 Documentary history, supra note 237, at 1670-72 (John P. Kaminski & Gaspare J. Saladino eds, 2008).
571. Id. at 1672 (quoting letter from Nathaniel Lawrence to John Lamb on July 3, 1788); see also id. at 2084-87 (summarizing impact of receipt of the news from Virginia of that state's ratification).
572. Lansing's July 7,1788 proposal was: That every Freeman has a Right to be secure from all unreasonable Searches & Seizures of his person, his papers & his property and that therefore all Warrants to search suspected places or to seize any Freeman his papers or property -without Information upon Oath (or Affirmation of a person religiously scrupulous of taking an Oath) of sufficient Cause are grievous and oppressive and all general Warrants to search suspected places or to apprehend any suspected person without specifically naming or describing the place or person are dangerous & oppressive & ought not to be granted. Id. at 2111-12.
573. Id. at 2118.
574. Lansing's July 10, 1788 proposal was: That every Freeman has a Right to be secure from all unreasonable Searches & Seizures of his person his papers & his property without Information upon Oath or Affirmation of sufficient Cause & that all general warrants to search suspected places or to apprehend any suspected person without specially describing or naming the place or person are dangerous & oppressive & ought not to be granted. Id. at 2120 (emphasis in original). Lansing's marginal notes indicated "See Virginia Plan." Id. at2127n.4.
575. Smith's proposal had only stylistic changes. See 23 Documentary History, supra note 237, at 2201 (John P. Kaminski & Gaspare J. Saladino eds, 2009).
576. Id. at 2236.
577. See id. at 2306.
578. The final version on July 26 provided: That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath or Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted. Id. at 2328.
579. The records of the proceedings on July 19 state: "every freeman secure agt. GenI Warrants - agreed." Id. at 2246; see also 2 Elliot, supra note 331, at 410 (1836) (noting that committee reported bill of rights to New York convention without any reported discussion).
580. In the South Carolina House of Representatives, during the debate on whether to call a convention to discuss ratifying the Federal Constitution, Charles Pickney (who had been a delegate to the Federal convention) reported that he initially had favored inclusion of a bill of rights but later became convinced that one was not necessary, given that the federal government had limited powers. See 4 Elliot, supra note 331, at 259-60 (1836). Pickney also observed that it would be "with very bad grace" for the delegates to advocate for a bill of rights because of the institution of slavery in South Carolina. Id. at 316. In the subsequent debates at the South Carolina ratifying convention, there were only brief references to the absence of a bill of rights, and no amendments were proposed. Id. at 317-42.
581. See Proceedings and Debates of the Convention of North Carolina 129-77 (Hodge & Wills 1789).
582. Speech of Delegate Spencer (Jul. 28, 1788), in Proceedings and Debates of the Convention of North Carolina, supra note 383, at 161.
583. Id.
584. See Speech of Delegate Iredell (Jul. 28, 1788), in Proceedings and Debates of the Convention of North Carolina, supra note 383, at 168-74.
585. Id. at 173.
586. See generally Proceedings and Debates of the Convention of North Carolina, supra note 383, at 129-77.
587. See id. at 268.
588. There appear to be two different versions of the North Carolina proposal. According to the official state records, the proposal provided: That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers and property: all warrants therefore to search suspected places, or to apprehend any suspected person without specifically naming or describing the place or person, are dangerous and ought not to be granted. 22 The State Records of North Carolina 18 (Walter Clark ed, 1907).
589. A second, longer version, also purporting to be the official state records, provided: That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted. 18 Documentary History, supra note 237, at 316 (John P. Kaminski & Gaspare J. Saladino eds, 1995).
590. The First Ten Amendments to the Constitution, Sources of Our Liberties, supra note 323, at 420.
591. See 4 Elliot, supra note 331, at 240-51 (1836); see also The First Ten Amendments to the Constitution, Sources of Our Liberties, supra note 323, at 420.
592. The primary Federalist Paper addressing whether a bill of rights should be included in the Constitution, and opposing such a bill, was Number 84, written by Alexander Hamilton. He asserted: "The truth is... that the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights." The Federalist No. 84, at 435 (Alexander Hamilton) (Ian Shapiro ed, 2009).
593. Hamilton also maintained that a bill of rights was not only unnecessary "but would even be dangerous. They would contain various exceptions to powers not granted...." Id. at 433. Madison wrote Number 38, in which he asserted that a bill of rights was not essential to liberty. See The Federalist No. 38 (James Madison).
594. In a letter to Thomas Jefferson, dated October 17, 1788, Madison asserted that his "own opinion has always been in favor of a bill of rights" but that he believed that an omission of a bill was not a "material defect, nor [had he] been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others." Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 5 Writings of James Madison 271 (Gaillard Hunt ed, 1904) (emphasis in original).
595. During the period of time when the House was debating amendments, Madison wrote that "many States" had ratified the Constitution "under a tacit compact" that amendments would be adopted and that the Constitution would not have been ratified in Virginia "had no assurances been given by its advocates that such provisions would be pursued. As an honest man / feel bound by this consideration." Letter from James Madison to Richard Peters (Aug. 19, 1789), in Creating the Bill of Rjghts: The Documentary Record from the First Federal Congress 282 (Helen E. Veit, Kenneth R. Bowling & Charlene Bangs Bickford eds, 1991) (emphasis in original).
596. Others have seen a different motivation for Madison's proposals for a Bill of Rights: to undercut the challenge posed by the Anti-Federalists. See, e.g., Cuddihy, supra note 15, at 724-27; see also 23 Documentary History, supra note 237, at 2505 (John P. Kaminski & Gaspare J. Saladino eds, 2009) (quoting letter from James Madison to George Washington on August 11, 1788, stating concern about proposals regarding a second constitutional convention would have to "be parried"); id. at 2516 (summarizing Madison's maneuvering in the House of Representatives and asserting that his introduction of his proposed amendments ended "any real chance that a second general convention would be summoned").
597. Lasson, supra note 3, at 97-98.
598. Id. at 100 n.77 (quoting 1 Annals of Cong. 452 (1789)).
599. Letter from James Madison to George Eve (Jan. 2, 1789), in 5 Writings of James Madison, supra note 394, at 319 n.I, 320;
600. see also Letter from James Madison to Thomas Mann Randolph (Jan. 13, 1789), in 11 The Papers of James Madison 416 (Robert A Rutland & Charles F. Hobson eds, 1977) (listing as one of the "essential rights... exemption from general warrants, &c");
601. Letter from James Madison to a Resident of Spotsylvania County (Jan. 27, 1789), in 11 The Papers of James Madison, supra, at 428 (listing "Exemption from General Warrants, &c" as a needed provision (emphasis omitted)).
602. See James Madison, Speech at the First Congress, First Session: Amendments to the Constitution (June 8,1789), in 5 Writings of James Madison, supra note 394, at 370.
603. Id. at 383-84; see also id. at 390 (indicating Madison's notes of his speech referenced general warrants).
604. Madison had been a delegate to the Virginia ratifying convention. 9 Documentary History, supra note 237, at 908 (John P. Kaminski & Gaspare J. Saladino eds, 1990).
605. The list of objects protected is identical to the Article 14 list, which was in turn derived from the Pennsylvania Constitution, see supra note 323, except for Madison's substitution of the phrase "other property" for "possessions." Madison's phrase was changed in the House consideration of the amendment to the word "effects," which remained in the amendment as adopted. Oliver v. United States, 466 U.S. 170, 177 n.7 (1984). "Effects" are limited to personal property and do not include real property.
606. See id.; see also Hester v. United States, 265 U.S. 57,59 (1924).
607. Madison, in his address to the House of Representatives, repeatedly used variations on the concept of "security" as the underlying concern. Hence, he asserted, amendments were needed to "expressly declare the great rights of mankind secured under this Constitution." James Madison, Speech at the First Congress, First Session: Amendments to the Constitution (June 8,1789), 5 Writings of James Madison, supra note 394, at 374. As another example, he stated that the Bill of Rights would "provide those securities for liberty which are required by a part of the community" and that it would "incorporate those provisions for the security of rights." Id. at 374-75.
608. E.g., Payton v. New York, 445 U.S. 573, 583-84 (1980). Lasson, for example, maintained that this draft of the amendment was [a] one-barrelled affair, directed apparently only at the essentials of a valid warrant. The general principle of freedom from unreasonable search and seizure seems to have been stated only by way of premise, and the positive inhibition upon action by the Federal Government limited consequently to the issuance of warrants without probable cause, etc. Lasson, supra note 3, at 103;
609. see also United States v. Rabinowitz, 339 U.S. 56, 81 (1950) (Frankfurter, J, dissenting) (noting that the Fourth Amendment was framed with general warrants especially in mind);
610. Harris v. United States, 331 U.S. 145, 191 (1947) (Murphy, J, dissenting) (stating that the Fourth Amendment was "designed in part, indeed perhaps primarily, to outlaw such general warrants"); Taylor, supra note 3, at 42 (indicating that Madison's draft only prohibited general warrants). But see Cuddihy, supra note 15, at 695 (arguing that Madison's original draft "embraced the full breadth of the final version" but that general warrants, because they were "sufficiently egregious," merited specific mention).
611. See, e.g., Pa. Const, of 1776, art. X, reprinted in Sources of Our Liberties, supra note 323, at 330.
612. See id.
613. The Pennsylvania Constitution required a "sufficient foundation." Id. Both the Virginia and North Carolina Constitutions required "evidence of the fact committed" to search suspected places and that seizures of persons be "supported by evidence." Va. Const. of 1776, § 10, reprinted in Sources of Our Liberties, supra note 323, at 311, 312;
614. N.C Const, of 1776, art. X, reprinted in Sources of Our Liberties, supra note 323, at 355,356.
615. Massachusetts required specification of the "cause or foundation." Ma. Const, of 1780 art. XIV, reprinted in Sources of Our Liberties, supra note 323, at 373,376.
616. It appears that many members of Congress viewed the amendments as having little real significance. Congressman John Sherman of Connecticut commented: "The amendments reported are a declaration of rights; the people are secure in them, whether we declare them or not...." 1 Annals of Cong. 715 (1789).
617. Two other congressmen uttered the view that, since four or five states had proposed amendments, they supported amendments to "gratify" the states. Id. at 732 (Aug. 15, 1789 comments of Mr. Hartley and Mr. Vining). Similarly, Congressman Fisher Ames wrote a letter on June 11, 1789, describing Madison's proposed amendments: "Upon the whole, it may do good towards quieting men who attend to sounds only, and get the mover some popularity - which he wishes." Letter from Fisher Ames to Thomas Dwight (June 11,1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, supra note 394, at 247.
618. Another Congressman, George Gale, sent a copy of Madison's proposals to William Tilghman and commented: "I trust you will think most of them Innocent and were it not that the Opponents to the Government might exult perhaps insultingly would have little Objection to their being Adopted." Letter from George Gale to William Tilghman (June 17, 1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, supra note 394, at 252.
619. James Madison perhaps best summarized that view: It is much to be wished that the discon[ten]ted part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little as possible unacceptable to those who approve the Constitution in its present form. The amendments proposed in the H. of Reps, had this twofold object in view; besides the third one of avoiding all controvertible points which might endanger the assent of 2/3 of each branch of Congs. and 3/4 of the State Legislatures. How far the experiment may succeed in any of these respects is wholly uncertain. It will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen. Letter from James Madison to Tench Coxe (June 24, 1789), in 12 The Papers of James Madison, supra note 397, at 257 (Charles F. Hobson & Robert A. Rutland eds, 1979).
620. Lasson, supra note 3, at 100.
621. Id. at 100-01.
622. 1 Annals of Cong. 754 (1789) (Aug. 17, 1789 comments and motion of Mr. Gerry).
623. Lasson, supra note 3, at 101 (quoting 1 Annals of Cong. 754 (1789)).
624. Id.
625. See Gazette of the United States (Aug. 22, 1789), reprinted in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, supra note 394, at 179-82.
626. See Cuddihy, supra note 15, at 694-95 n.89, 730-31; Davies, Original Fourth Amendment, supra note 24, at 716-19;
627. see also Amar, First Principles, supra note 22, at 775 n.66 (criticizing accuracy of the House reporter).
628. Letter from Elbridge Gerry to the Senate and House of Representatives of Massachusetts (Oct. 18, 1787), in James T. Austin, 2 The Life of Elbridge Gerry 42, 43 (1829).
629. Id.
630. Letter from Elbridge Gerry to General Warren (June 28, 1788), in Austin, supra note 415, at 84, 85.
631. Letter from Elbridge Gerry to the Electors of Middlesex District, Massachusetts, in Austin, supra note 415, at 91,93.
632. Cuddihy, supra note 15, at 693.
633. In a letter to Gerry shortly after he drafted the Massachusetts Constitution, Adams discussed its structure and his hope for its adoption. Letter from John Adams to Elbridge Gerry (Nov. 4, 1779), in 9 the Works of John Adams, supra note 7, at 505-06 (1854).
634. In a letter dated December 2, 1814, upon hearing of the death of Gerry, Adams remarked that they had been friends for over forty years. Letter from John Adams to Rufus King (Dec. 2, 1814), in 10 The Works of John Adams, supra note 7, at 106(1856).
635. During a debate in Congress, Gerry stated that the members of the Massachusetts delegation "were particularly instructed to press the Amendments recommended by the convention of that state at all times." 1 Annals of Cong. 662 (1789).
636. However, a search and seizure provision was not among the amendments recommended by Massachusetts. See supra note 356. In a letter dated August 18, 1789, Congressman Frederick A. Muhlenburg wrote that the House had spent the day as a Committee of the Whole debating amendments. Letter from Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, supra note 394, at 280. He observed: "Mr. Gerry & Mr. Tucker had each of them a long string of Amendts. which were not comprised in the Report of the special Committee, & which they stiled Amendments proposed by the several States." Id. Cuddihy asserts that Gerry "had an established record of opposition to general searches and seizures." Cuddihy, supra note 15, at 695 n.90. In support of that claim, Cuddihy cites only the fact that Gerry had been a member of a committee in 1773 that had sent a copy of Otis's arguments in the Writs Case to the Connecticut Committee of Correspondence. Id.
637. Cuddihy, supra note 15, at 724.
638. Lasson, supra note 3, at 101 (quoting 1 Annals of Cong. 754 (1789)).
639. Lasson, supra note 3, at 101, 102 n.84 (citing 1 Annals of Cong. 754 (1789)).
640. But see Davies, Original Fourth Amendment, supra note 24, at 719-20 (arguing that the motion passed, although acknowledging that the historical evidence "is inconsistent" and maintaining that a subsequent minor grammatical change in the language of the amendment made after the "no warrant shall issue" motion was made and supports his view).
641. Landynski, supra note 1, at 41-42; Lasson, supra note 3, at 101-02. It is unknown whether the change was due to Benson's oversight, his unilateral action, or an unreported acceptance of Benson's phrasing by the House. Lasson, supra note 3, at 102 n.84. The committee consisted of three members: John Sherman of Connecticut, Theodore Sedgwick of Massachusetts, and Benson. Id. at 101 n.81. There is no evidence that Sherman or Sedgwick had any influence on the drafting of the amendment. At best they were disinterested. Sherman had performed distinguished service on behalf of the colonies and the newly independent United States, including being the only person to have signed the Declaration of Independence, the Declaration of the Rights of the Colonies, the Articles of Confederation, and the Constitution. See Roger Sherman Boardman, Roger Sherman: Signer and Statesman 122 (1938).
642. Yet, there is little history of Sherman having any interest in search and seizure issues. As a delegate to the Constitutional Convention and during the subsequent attempts to ratify the Constitution, he was opposed to the inclusion of a Bill of Rights. Id. at 261-62, 267-73; see also Christopher Collier, Roger Sherman's Connecticut 242 (1971) (quoting Sherman as stating on September 12, 1787: "The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.").
643. Sherman had been an associate justice in Connecticut from 1768 to 1769 and had some involvement in the debate as to whether writs of assistance should be issued as general or specific writs. The Connecticut court apparently declined to issue general writs. See Quincy, supra note 83, app. I, at 501-06. As a member of Congress, Sherman eventually came to see the amendments as harmless. See, e.g., Letter from Roger Sherman to Henry Gibbs (Aug. 4, 1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, supra note 394, at 271.
644. Sherman wrote that the amendments "will probably be harmless & Satisfactory to those who are fond of Bills of rights." Id. His main contribution to the Bill of Rights was as an advocate for not interweaving them into the text of the original document. See Boardman, supra, at 293-94 (citing 1 Annals of Cong. 707-08 (1789)).
645. Sherman did, however, maintain a long term friendship with John Adams. See id. at 123, 175; Letter from John Adams to Roger Sherman (July 17, 1789), in 6 The Works of John Adams, supra note 7, at 427, 429 (1851) (describing Adams's "unalterable friendship" with Sherman).
646. But I have found no indication that they specifically discussed search and seizure principles. Cf. Journal Entry of John Adams (Aug. 17, 1774), in 2 The Works of John Adams, supra note 7, at 343 (1850) (describing Adams's conversation with Sherman during the 1774 Continental Congress in which Sherman asserted that Otis's tract on the rights of the colonists had conceded too much authority to parliament);
647. The Works of John Adams, supra note 7, at 427-42 (correspondence between Adams and Sherman on the structure of governments).
648. In a debate at the Continental Congress regarding the composition of a statement of grievances against Great Britain, according to Adams's notes, Sherman observed: "The Colonies adopt the common Law, not as the common Law, but as the highest Reason." 2 Diary and Autobiography of Adams, supra note 101, at 129.
649. Sedgwick was a strong Federalist and unlikely candidate for limiting the powers of the federal government. See generally M.E. Bradford, High Federalist Teaching: Theodore Sedgwick of Massachusetts, 25 Intercollegiate Rev. 31 (1990).
650. Sedgwick had been a delegate to the Massachusetts ratifying convention and had served on the committee that was asked to prepare recommended amendments. Id. at 34. As discussed in note 356, a search and seizure amendment was not proposed by that committee; a subsequent attempt to add one was defeated. In a letter dated July 19, 1789, Sedgwick showed little respect for Madison or his "system of amendments." Letter from Theodore Sedgwick to Benjamin Lincoln (July 19, 1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, supra note 394, at 263-64.
651. He did not want them to "shackle the operations of government," and he viewed the debate regarding the amendments as a "water gruel business." Id. Sedgwick wrote another letter on August 20, 1789, in which he commented that the House was "still engaged about the unpromising subject of amendments," and he predicted that their introduction at that time was "unwise and will not produce the beneficial effects which its advocates predicted." Letter from Theodore Sedgwick to Pamela Sedgwick (Aug. 20,1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, supra note 394, at 283.
652. Lasson, supra note 3, at 102-03.
653. See Cuddihy, supra note 15, at 712-23. Based on his examination of the state records regarding the ratification of the amendment, Cuddihy observed: "None of [the state legislative] journals preserves a single utterance by a state legislator on the right respecting search and seizure.... To the extent that the direct evidence indicates, the amendment's ratifiers took their thoughts about its original meaning to the grave." Id. at 713.
654. Cf. Harris v. United States, 331 U.S. 145, 158 (1947) (Frankfurter, J, dissenting) (noting that because the Fourth Amendment was based on the Massachusetts model, "[tjhis is clear proof that Congress meant to give wide, and not limited, scope to [the] protection against police intrusion").
655. Adams was certainly not without faults. For example, it was during his administration that the Alien and Sedition Acts became law. See David McCullough, John Adams 504-07 (2001).
656. Adams's correspondence is massive. See, e.g., Letter from Patrick Henry to John Adams (May 20, 1776), in 4 The Works of John Adams, supra note 7, at 201-02 (1851) (discussing their thoughts on government);
657. Letter from John Adams to John Perm (Jan. 1776), in 4 The Works of John Adams, supra note 7, at 203-09 (1851) (detailing a "sketch [of] the outlines of a constitution" for North Carolina at the request of delegates from that state).
658. Professor Davies asserts that the framers "would have understood 'unreasonable searches and seizures' as the pejorative label for searches or for arrests made under that most illegal pretense of authority-general warrants." Davies, Original Fourth Amendment, supra note 24, at 693;
659. see also id. at 723 (implying that the framers were merely banning general warrants and not creating a broad reasonableness standard). There are multiple problems with Davies's position. First, it ignores that portion of Otis's argument that set out detailed objective criteria for a warrant to issue. See supra notes 112, 118, 149 and accompanying text. Second, if the framers were concerned only with general warrants, the initial draft of the Fourth Amendment was clearly sufficient to address those concerns, as were its numerous state predecessors regulating only warrants. Third, if " reasonableness" is to be equated with the common law standards of the day, as Davies asserts, he fails to acknowledge that there were a series of common law rules that regulated (and limited) warrantless and warranted searches and seizures. This is to say, as Cuddihy has observed: To Davies, "unreasonable searches and seizures" embrace little more than the declarations of the 81 members of the First Congress who framed the amendment and its immediate antecedents employing identical phraseology. Davies excludes, sidetracks, and otherwise minimizes unarticulated but palpable assumptions, documentation incompatible with his thesis, and most of the legacy of search and seizure before 1780. The reader is left with historical meaning without 99 percent of the history that vests meaning. Davies begins by quoting L.P. Hartley's aphorism that "the past is a foreign country: they do things differently there." Davies however, myopically narrows the "country" to which he takes us to little more than its preceding decade and views it only through the tunnel vision of textual literalism. Cuddihy, supra note 15, at 778. If the framers were referring to the common law in using the term "unreasonable, " then it is just as likely that the framers were incorporating the common law standards for both warrants and warrantless actions. Finally, the word "reasonable" had many meanings at the time of the framing, ranging from connoting "logic or consistency" to "denoting unconstitutionality." Davies, Original Fourth Amendment, supra note 24, at 687-93; see also David A. Sklansky, The Fourth Amendment and Common Law, 100 colum. L. Rev. 1739, 1777-81 (2000) (examining various historical meanings of the word "reasonable" and observing that the term " unreasonable" in the late eighteenth century "almost always" meant "what it means today: contrary to sound judgment, inappropriate, or excessive").
660. Davies's choice of its meaning remains entirely speculative and, in my view, not well supported. As for Amar and his inspiration, Taylor, see, e.g., Davies, Original Fourth Amendment, supra note 24;
661. Maclin, supra note 24; Steiker, supra note 24. I agree with the view that Professor Amar's account "offered little evidence for [his] central historical claims." See Davies, Original Fourth Amendment, supra note 24, at 576; see also Cuddihy, supra note 15, at 776-77 (broadly criticizing Amar's work).
662. To be fair, there is some support in the framing era for the view that recourse to a magistrate was a favored procedure to pre-authorize a search. Otis, according to Adams's abstract, stated that an officer should state his grounds to search "before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places." 2 The Works of John Adams, supra note 7, app. A at 525 (1850). In the article attributed to Otis, he maintained that the needed justification to invade a person's home "ought to be determin'd by adequate and proper judges." Quincy, supra note 83, app. I at 490 (emphasis in original). Similar isolated comments were made by others, including Leach's counsel. See supra note 174.
663. See generally Pennsylvania and The Federal Constitution 1787-1788 (John B. McMaster & Frederick D. Stone eds, 1888).
664. 2 The Works of James Wilson 254 (James DeWitt Andrews ed, 1896) (including his lectures as a professor of law from 1790 to 1792).
665. See id.
666. Id. at 255.
667. Pennsylvania amended its constitution in 1790 to closely resemble the Fourth Amendment. It provided: That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures: And that no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. Pa. Const, of 1790, art. IX, § 8, quoted in Davies, Original Fourth Amendment, supra note 24, at 615 n.l 81. If the Fourth Amendment was viewed at the time as having no application beyond banning general warrants, then there was no reason to amend the Pennsylvania Constitution, given that the previous version had done so. See supra note 323.
668. 2 The Works of James Wilson, supra note 434, at 445.
669. Id. at 446.
670. Id.
671. A recent article, David T. Hardy, The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, 103 Nw. U. L. Rev. 1527 (2009), sheds some additional light. St. George Tucker was a professor of law at William and Mary from 1790 until his appointment to the bench in 1804. Id. at 1527. While at William and Mary, he produced an edition of Blackstone's Commentaries, annotated in light of American law. The text became "the standard work on American law for a generation" and Tucker remained the most frequently cited American legal scholar for over two decades. Tucker's role in American legal scholarship was likewise striking. He has been termed "the first modern American law professor" and creator of the American law degree. Id. (footnotes omitted).
672. Tucker's annotated Blackstone was cited by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 594-95 (2008), to help interpret the Second Amendment. Hardy reproduced Tucker's notes on the Fourth Amendment and argued that the notes "treat[] probable cause and warrant issuance as components of reasonableness." Hardy, supra, at 1535. These are Tucker's notes: The right of the people to be secure in their persons, houses, papers & effects, against unreasonable searches and seizures, shall not be violated-What shall be deemed unreasonable searches and seizures. The same article informs us, by declaring, "that no warrant shall issue, but first, upon probable cause - which cause secondly, must be supplied by oath or affirmation; thirdly the warrant must particularly described the place to be searched; and fourthly - the persons, or things to be seized. All other searches or seizures, except such as are thus authorized, are therefore unreasonable and unconstitutional. And herewith agrees our State bill of rights - Art. 10.
673. [Tucker note: "vi: Act concerning aliens - contra 5: Cong: c:"] The case of general warrants, under which term all warrants except such as are above described are included, was warmly agitated in England about thirty years ago - and after much altercation they were finally pronounced to be illegal by the common law - see [Release?] of Money v. Leach 3 Burrow 1743. 1 Bl. Rep: 555; vi-4 B.C. 291.
674. But this clause does not extend to repeal, or annul the common law principle that offenders may in certain cases be arrested, even without warrant. As in the case of riots, or breaches of the peace committed within view of a Justice of the Peace, or other peace officer of a county, who may in such cases cause the offender to be apprehended, or arrest him, without warrant. Nor can it be construed to restrain the authority, which not only peace officers, but every private person possesses, by the common law, to arrest any felon if they shall be present when the felony is committed, Hardy, supra, at 1535-36 (footnote omitted) (quoting Tucker's lecture notes). In addition to the lecture notes, Tucker's commentary on Blackstone has a specific section on the Fourth Amendment. In that section, Tucker sets forth the language of the amendment, notes that general warrants were found to violate the common law in a series of English cases, and discusses at some length why the Alien Act of 1789, passed by the fifth Congress, violated the Fourth Amendment. See 1 St. George Tucker, Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia 301-04 (St. George Tucker ed, 1803); see also Hardy, supra, at 1535 n.34 (noting that Tucker's commentary was cited by Justice Story in his treatise); see supra note 429.
675. Justice Story wrote a famous commentary about the Constitution some fifty years after the Fourth Amendment was ratified. His commentaries are often cited for the pithy statement that the Fourth Amendment "is little more than the affirmance of a great constitutional doctrine of the common law." 3 Joseph Story, Commentaries on the Constitution of the United States § 1895, at 748 (1833).
676. Story states that "its introduction into the amendments was doubtless occasioned by the strong sensitivities excited, both in England and America, upon the subject of general warrants almost upon the eve of the American Revolution." Id. Relying on these brief references, some draw support for the view that the amendment was merely designed to address the general warrant controversies or was not designed to address warrantless situations. E.g., Davies, Original Fourth Amendment, supra note 24, at 618 n.190.
677. Story's commentaries, read in full, simply do not support that view; in fact, they are inconsistent with it. First, in the quotation just reproduced, Story was merely observing that the amendment was "occasioned by" the general warrant controversies; he did not say that it was defined or limited by them. Second, Story provided a broad view of the amendment's purpose: "This provision seems indispensible to the full enjoyment of the rights of personal security, personal liberty, and private property." story, supra, § 1895, at 748. Third, Story cited two instances involving warrantless situations, which were viewed as being within the purview of the amendment. The first, during Adams's administration, involved the Alien Act of 1798, which was viewed as a violation of the amendment because it authorized the President to order the removal of "such aliens, as he should judge dangerous to the peace and safety of the United States, or have reasonable grounds to suspect of any treasonable, or secret machinations against the government." Id. at 749 n.l. The second event involved the seizure of two Americans by military force during Jefferson's administration "without any warrant, or order of any civil authority," from New Orleans to Washington for trial. Id. (citing Ex parte Bollman, 8 U.S. 75 (4 Cranch) (1807)). Story observed that the Supreme Court found that the seizures "wholly disregarded" the Constitution. Id. at 749-50 n.l. He added: "Without any warrant or lawful authority, citizens are dragged from their homes by military force... against the plain language of this very article." Id. Finally, Story cited to Sailly v. Smith, 11 Johns. 500 (N.Y. Sup. Ct. 1814), which upheld the warrantless seizure of allegedly uncustomed goods against a claim, inter alia, that a warrant was needed. Id. at 749 n.l. It would make no sense for him to cite the case if he did not believe that the amendment applied only to regulate warrants.
678. See, e.g., Davies, Original Fourth Amendment, supra note 24, at 629 - 40. See generally Sklansky, supra note 431.
679. The early Congresses passed several customs statutes that have been cited to support various points of view as to the need for warrants or individualized suspicion to justify searches. See Cuddihy, supra note 15, at 735-39;
680. Morgan Cloud, Searching Through History; Searching for History, 63 U. Chi. l. Rev. 1707,1739-43 (1996) (book review);
681. see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 671 (1995) (O'Connor, J, dissenting) (referring to the Collection Act of 1789 to illustrate the First Congress's desire to maintain individualized suspicion as a requirement even where the warrant requirement would be inapplicable). As Professor Cloud notes, the statutes had a mix of requirements depending upon the location and purpose of the search. Cloud, supra, at 1739-43.
682. 2 The Works of John Adams, supra note 7, app. A, at 524 (1850); see supra text accompanying note 118.
683. 2 The Works of John Adams, supra note 7, app. A, at 522 (1850).
684. Id. at 525 (emphasis omitted).
685. Id.
686. E.g., 1 Richard Burn, The Justice of the Peace and Parish Officer 85 (1762) (asserting that an arrest must be based on "some probable ground");
687. Hale, supra note 53, at 91-92 (stating that when the constable ascertained that a felony had been committed and he had "probable grounds" that a specific person was the perpetrator, the constable could arrest the suspect without a warrant); id. at 103 (observing that an arrest based on hue and cry permissible when probable cause to arrest present); accord Payton v. New York, 445 U.S. 573, 605 (1980) (White, J, dissenting); see also Cuddihy, supra note 15, at 413-14, 423-27, 642-45, 754-58 (tracing numerous instances of the use of probable cause or individualized suspicion as a needed requirement to justify a search or seizure).
688. See, e.g., United States v. Watson, 423 U.S. 411, 418-19 (1976) (discussing "ancient" common law rule permitting arrests without warrant for misdemeanors and felonies committed in an officer's presence and for felonies not in an officer's presence for which there were reasonable grounds to arrest);
689. see also Payton, 445 U.S. at 605 (1980) (White, J, dissenting); Samuel v. Payne, (1780) 99 Eng. Rep. 230 (K.B.) (recognizing as a defense to a false imprisonment claim, stemming from constable's arrest of the plaintiff, the fact that the arrest was based on allegations that the plaintiff had stolen goods);
690. James F. Stephen, A History of the Criminal Law of England 193 (1883) (referring to the level of suspicion as "reasonable grounds" that the person has committed a felony). Nonetheless, there were numerous examples of suspicionless searches and seizures throughout England and its American colonies. See, e.g., Cuddihy, supra note 15, at 486-97.
691. See Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74 Miss. L.J. 279,284 (2004) ("From its origins until the enactment of the Fourth Amendment, probable cause seems to have remained in a state of flux.").
692. See Clancy, supra note 24, § 11.3.2.1.1 (discussing the Supreme
693. See Clancy, supra note 24, § 12.5.3 (analyzing legal status of nighttime execution of warrants under Fourth Amendment); Cuddihy, supra note 15, at 747-48 (providing an overview of the legality of nocturnal searches); Quincy, supra note 83, app. I at 450 (discussing how writs of assistance for customs searches were modified in 1768 to authorize day time only execution); id. at 448 (discussing how, in 1766, custom searchers withdrew from Daniel Malcomb's residence to avoid entering at night, recognizing that the writ would not justify a nighttime entry).
694. See Clancy, supra note 24, § 12.5.4 (analyzing legal status of knock and announce requirement under Fourth Amendment); Cuddihy, supra note 15, at 749-50 (providing historical analysis of unannounced searches of the home).
695. See Payton, 445 U.S. at 592-98 (discussing the common law views of the requirement of a warrant to arrest in-house); Watson, 423 U.S. at 418-19 (discussing "ancient" common law rule permitting arrests without warrant for misdemeanors and felonies committed in an officer's presence and for felonies not in an officer's presence for which there were reasonable grounds to arrest).
696. 2 Legal Papers of John Adams, supra note 86, at 319.
697. The Supreme Court has been quite insistent in affording special protection for the home. See, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004) (collecting cases and emphasizing '"the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion'" as being at the "very core" of the Fourth Amendment protections
698. quoting Kyllo v. United States, 533 U.S. 27, 31 (2001).
699. That special protection has carried forward the framing era consensus. E.g., Weeks v. United States, 232 U.S. 383, 390 (1914) ("Resistance to these practices had established the principle which was enacted into the fundamental law in the 4th Amendment, that a man's house was his castle, and not to be invaded by any general authority to search and seize his goods and papers.");
700. Osmond K. Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361, 365 (1921) (opining that it was "apparent" that the Fourth Amendment embodied the principle in English liberty that found "expression in the maxim 'every man's home is his castle'").
701. E.g., United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972).
702. 1 Blackstone, supra note 197, at *143; see also id. at *129 (stating that the three rights are: "the right of personal security, the right of personal liberty and the right of private property"). For representative references to Blackstone's list, see James Otis, A Vindication of the British Colonies Against the Aspirations of Halifax Gentleman, in His Letter to a Rhode Island Friend (1765), reprinted in 1 pamphlets of THE american revolution, supra note 110, at 558 ("The absolute liberties of Englishmen, as frequently declared in Parliament, are principally three: the right of personal security, personal liberty, and private property." (emphasis in original));
703. Article in the New York Journal (Jan. 23, 1788), reprinted in 20 Documentary History, supra note 237, at 643 (John P. Kaminski & Gaspare J. Saladino eds, 2004).
704. Soldal v. Cook County, 506 U.S. 56,63 & n.8 (1992).
705. 3 Story, supra note 442, § 1895, at 748.
706. 2 Legal Papers of John Adams, supra note 86, at 315-16.
707. Quincy, supra note 83, app. I at 489 (emphasis in original).
708. Letter from John Adams to William Tudor (June 1, 1818), in 10 THE Works of John Adams, supra note 7, at 314, 316 (1856).
709. Peter D.G. Thomas, John Wilkes: A Friend to Liberty 32 (1996) (citation omitted).
710. For a general discussion of the origin and meaning of the word "secure," see Clancy, supra note 24, § 3.1; Clancy, supra note 182.
711. Journal Entry of John Adams (Dec. 27, 1765), in 2 The Works of John Adams, supra note 7, at 166 (1850) (citations omitted).