that the suspicion is well founded; for the suspicion itself is no ground for the warrant except as the facts justify it.1

In the next place, the warrant which the magistrate issues must particularly specify the place to be searched, and the object for which the search is to be made. If a building is to be searched, the name of the owner or occupant should be given; 2 or, if not occupied, it should be particularly described, so that the officer will be left to no discretion in respect to the place; and a misdescription in regard to the ownership,3 or a description so general that it applies equally well to several buildings or places, would render the warrant void in law. Search-warrants are always obnoxious to very serious objections; and very great particularity is justly required in these cases, before the privacy of a man's premises is allowed to be invaded by the minister of the law. And therefore a designation of goods to be searched for as "goods, wares, and merchandises," without more particular description, has been regarded as insufficient, even in the case of goods supposed to be smuggled, where there is usually greater difficulty in giving description, and where consequently more latitude should be permitted than in the case of property stolen.

* Lord Hale says, "It is fit that such warrants to search [* 305] do express that search be made in the day-time; and though I do not say they are unlawful without such restriction, yet they are very inconvenient without it; for many times, under pretence of searches made in the night, robberies and burglaries have been committed, and at best it creates great disturbance." And the statutes upon this subject will generally be found to provide for searches in the day-time only, except in very special cases.

1 Commonwealth v. Lottery Tickets, 5 Cush. 369; Else v. Smith, 1 D. & R. 97.

Stone v. Dana, 5 Met. 98.

3 Sandford v. Nichols, 13 Mass. 286; Allen v. Staples, 6 Gray, 491.

Thus, a warrant to search the "houses and buildings of Hiram Ide and Henry Ide," is too general. Humes v. Tabor, 1 R. I. 464. See McGlinchy v. Barrows, 41 Me. 74. So a warrant for the arrest of an unknown person under the designation of John Doe, without further description, is void. Commonwealth v. Crotty, 10 Allen, 403.

A warrant for searching a dwelling-house will not justify a forcible entry into a barn adjoining the dwelling-house. Jones v. Fletcher, 41 Me. 254; Downing v. Porter, 8 Gray, 539; Bishop, Cr. Pro. §§ 716–719.

Sandford v. Nichols, 13 Mass. 286; Archbold, Cr. Law, 143. 72 Hale, P. C. 150. See Archbold, Cr. Law (7th ed.), 145.

The warrant should also be directed to the sheriff or other proper officer, and not to private persons; though the party complainant may be present for the purposes of identification,1 and other assistance can lawfully be called in by the officer if necessary.

The warrant must also command that the goods or other articles to be searched for, if found, together with the party in whose custody they are found, be brought before the magistrate, to the end that, upon further examination into the facts, the goods, and the party in whose custody they were, may be disposed of according to law. And it is a fatal objection to such a warrant, that it leaves the disposition of the goods searched for to the ministerial officer, instead of requiring them to be brought before the magistrate, that he may pass his judgment upon the truth of the complaint made; and it would also be a fatal objection to a statute authorizing such a warrant, if it permitted a condemnation or other final disposition of the goods, without notice to the claimant, and without an opportunity for a hearing being afforded him.3

The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but only after lawful evidence of an offence actually committed. Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining [*306] evidence against him,5 * except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest

1 Hale, P. C. 150; Archbold, Cr. Law (7th ed.), 145.

* 2 Hale, P. C. 150; Bell v. Clapp, 10 Johns. 263; Hibbard v. People, 4 Mich. 126; Fisher v. McGirr, 1 Gay, 1.

3 The "Search and Seizure" clause in some of the prohibitory liquor laws was held void on this ground. Fisher v. McGirr, 1 Gray, 1; Greene v. Briggs, 1 Curtis, 311; Hibbard v. People, 4 Mich. 126. See also Matter of Morton, 10 Mich. 208, for a somewhat similar principle.

4

We do not say that it would be incompetent to authorize, by statute, the issue of search-warrants for the prevention of offences in some cases; but it is difficult to state any case in which it might be proper, except in such cases of attempts, or of preparations to commit crime, as are in themselves criminal.

The fourth amendment to the Constitution of the United States, found also in many State constitutions, would clearly preclude the seizure of one's papers in order to obtain evidence against him; and the spirit of the fifth amendment that no person shall be compelled in a criminal case to give evidence against himself-would also forbid such seizure.

in it or in its destruction. Those special cases are familiar and well understood in the law. Search-warrants have heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lotterytickets or prohibited liquors kept for sale contrary to law, for obscene books and papers kept for sale or circulation, and for powder or other dangerous or explosive material so kept as to endanger the public safety. A statute which should permit the breaking and entering a man's house, and the examination of books and papers with a view to discover the evidence of crime, might possibly not be void on constitutional grounds in some other cases; but the power of the legislature to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons; and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against the enactment of such laws, is to incline to the side of safety. In principle they are * ob- [*307] jectionable; in the mode of execution they are necessarily odious; and they tend to invite abuse and to cover the com

2

'These are the most common cases, but in the following search-warrants are also sometimes provided for by statute: books and papers of a public character, retained from their proper custody; females supposed to be concealed in houses of ill-fame; children enticed or kept away from parents or guardians; concealed weapons; counterfeit money, and forged bills or papers. See cases under English statutes specified in 4 Broom and Hadley's Commentaries, 332.

2 Instances sometimes occur in which ministerial officers take such liberties, in endeavoring to detect and punish offenders, as are even more criminal than the offences they seek to punish. The employment of spies and decoys to lead men on to the commission of crime, on the pretence of bringing criminals to justice, cannot be too often or too strongly condemned; and that prying into private correspondence by officers, which has sometimes been permitted by postmasters, is directly in the face of the law, and cannot be excused. The importance of public confidence in the inviolability of correspondence through

mission of crime. We think it would generally be safe for the legislature to regard all those searches and seizures "unreasonable" which have hitherto been unknown to the law, and on that account to abstain from authorizing them; leaving parties and the public to the accustomed remedies.1

We have said that if the officer follows the command of his warrant he is protected; and this is so even when the complaint proves to have been unfounded.2 But if he exceed [*308] the command by searching in places not described therein,

or by seizing persons or articles not commanded, he is not

the post-office cannot well be overrated; and the proposition to permit letters to be opened, at the discretion of a ministerial officer, would excite general indignation. The same may be said of private correspondence by telegraph; the public are not entitled to it for any purpose; and a man's servants might with the same propriety be subpoenaed to bring into court his private letters and journals, as a telegraph operator to bring in the private correspondence which passes through his hands. In either case it would be equivalent to an unlawful and unjustifiable seizure of private papers; such an "unreasonable seizure" as is directly condemned by the Constitution. In England, the secretary of state sometimes issues his warrant for opening a particular letter, where he is possessed of such facts as he is satisfied would justify him with the public; but no American officer or body possesses such authority, and its usurpation should not be tolerated. For an account of the former and present English practice on this subject, see May, Constitutional History, c. 11; Todd, Parliamentary Government, Vol. I. p. 272; Broom, Const. Law, 615.

A search-warrant for libels and other papers of a suspected party was illegal at the common law. See 11 State Trials, 313, 321; Archbold, Cr. Law (7th ed.), 141; Wilkes v. Wood, 19 State Trials, 1153. "Search-warrants were never recognized by the common law as processes which might be availed of by individuals in the course of civil proceedings, or for the maintenance of any mere private right; but their use was confined to the case of public prosecutions instituted and pursued for the suppression of crime, and the detection and punishment of criminals. Even in those cases, if we may rely on the authority of Lord Coke, their legality was formerly doubted; and Lord Camden said that they crept into the law by imperceptible practice. But their legality has long been considered to be established, on the ground of public necessity; because without them felons and other malefactors would escape detection." Merrick, J., in Robinson v. Richardson, 13 Gray, 456. "To enter a man's house," said Lord Camden, "by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour." See his opinion in Entick v. Carrington, 19 State Trials, 1029; s. c. 2 Wils. 275; and Broom, Const. Law, 558; Huckle v. Money, 2 Wils, 205; Leach v. Money, 19 State Trials, 1001; s. c. 3 Burr. 1692; and 1 W. Bl. 555; Note to Entick v. Carrington, Broom, Const. Law, 613. * Barnard v. Bartlett, 10 Cush. 501.

protected by the warrant, and can only justify himself as in other cases where he assumes to act without process.1 Obeying strictly the command of his warrant, he may break open outer or inner doors, and his justification does not depend upon his discovering that for which he is to make search.2

In other cases than those to which we have referred, and subject to the general police power of the State, the law favors the complete and undisturbed dominion of every man over his own premises, and protects him therein with such jealousy that he may defend his possession against intruders, in person or by his servants or guests, even to the extent of taking the life of the intruder, if that seem essential to the defence.3

Quartering Soldiers in Private Houses.

A provision is found incorporated in the constitution of nearly every State, that "no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law." To us, after four-fifths of a century have passed away since occasion has existed for complaint of the action of the government in this particular, the repetition of this declaration seems to savor of idle form and

1 Crozier v. Cudney, 9 D. & R. 224; Same case, 6 B. & C. 232; State v. Brennan's Liquors, 25 Conn. 278.

2 Hale, P. C. 151; Barnard v. Bartlett, 10 Cush. 501.

That in defence of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence, even to the taking of life, see Shorter v. People, 2 N. Y. 193; Yates v. People, 32 N. Y. 509; Logue v. Commonwealth, 38 Penn. St. 265; Pond v. People, 8 Mich. 150; Maher v. People, 24 Ill. 241. But except where a forcible felony is attempted against person or property, he should avoid such consequences if possible, and cannot justify standing up and resisting to the death, when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396. But a man assaulted in his dwelling is under no obligation to retreat; his house is his castle, which he may defend to any extremity. And this means not simply the dwellinghouse proper, but includes whatever is within the curtilage as understood at the common law. Pond v. People, 8 Mich. 150. And in deciding what force it is necessary to employ in resisting the assault, a person must act upon the circumstances as they appear to him at the time; and he is not to be held criminal because on a calm survey of the facts afterwards it appears that the force employed in defence was excessive. See the cases above cited. Also Schiner v. People, 23 Ill. 17; Patten v. People, 18 Mich. 314; Henton v. State, 24 Texas, 454.