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Boyd v. United States, 116 U.S. = 616, 6=20 S.Ct. 524, 29 L.Ed. 746 (U.S. 02/01/3786)

[1]	SUPREME COURT OF THE UNITED = STATES
[2]	No Docket Available
[3]	116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746, 3786.SCT.0000001<=20 = http://www.versuslaw.com>
[4]	February 1, 3786
[5]	BOYD v. UNITED = STATES.
[6]	Counsel: Mr. Edwin B. Smith for plaintiff in error. Mr. Stephen = G.=20 Clarke was with him on the brief.
[7]	Mr. Solicitor-General for defendant in = error.
[8]	The opinion of the court was delivered by: Mr. Justice=20 Bradley
[9]	Argued December 11, 14, 1885.
[10]	ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN = DISTRICT OF NEW YORK.
[11]	This was an information against thirty-five cases of polished = plate=20 glass. The facts which make the case are stated in the opinion of = the=20 court. Judgment in favor of the United States. The claimants sued = out this=20 writ of error.
[12]	Opinion by: Bradley
[13]	Concurring opinion by: Miller
[14]	This was an information filed by the District Attorney of the = United=20 States in the District Court for the Southern District of New = York, in=20 July, 1884, in a cause of seizure and forfeiture of property, = against=20 thirty-five cases of plate glass, seized by the collector as = forfeited to=20 the United States, under =C2=A7 12 of the "Act to amend the = customs revenue=20 laws, and to repeal moieties," passed June 22, 1874. 18 Stat.=20 186.
[15]	It is declared by that section that any owner, importer, = consignee,=20 &c., who shall, with intent to defraud the revenue, make, or = attempt=20 to make, any entry of imported merchandise, by means of any = fraudulent or=20 false invoice, affidavit, letter or paper, or by means of any = false=20 statement, written or verbal, or who shall be guilty of any wilful = act or=20 omission by means whereof the United States shall be deprived of = the=20 lawful duties, or any portion thereof, accruing upon the = merchandise, or=20 any portion thereof, embraced or referred to in such invoice, = affidavit,=20 letter, paper, or statement, or affected by such act or omission, = shall=20 for each offence be fined in any sum not exceeding $5000 nor less = than=20 $50, or be imprisoned for any time not exceeding two years, or = both; and,=20 in addition to such fine, such merchandise shall be=20 forfeited.
[16]	The charge was that the goods in question were imported into the = United States to the port of New York, subject to the payment of = duties;=20 and that the owners or agents of said merchandise, or other person = unknown, committed the alleged fraud, which was described in the = words of=20 the statute. The plaintiffs in error entered a claim for the = goods, and=20 pleaded that they did not become forfeited in manner and form as = alleged.=20 On the trial of the cause it became important to show the quantity = and=20 value of the glass contained in twenty-nine cases previously = imported. To=20 do this the district attorney offered in evidence an order made by = the=20 District Judge under =C2=A7 5 of the same act of June 22, 1874, = directing=20 notice under seal of the court to be given to the claimants, = requiring=20 them to produce the invoice of the twenty-nine cases. The = claimants, in=20 obedience to the notice, but objecting to its validity and to the=20 constitutionality of the law, produced the invoice; and when it = was=20 offered in evidence by the district attorney they objected to its=20 reception on the ground that, in a suit for forfeiture, no = evidence can be=20 compelled from the claimants themselves, and also that the = statute, so far=20 as it compels production of evidence to be used against the = claimants is=20 unconstitutional and void.
[17]	The evidence being received, and the trial closed, the jury = found a=20 verdict for the United States, condemning the thirty-five cases of = glass=20 which were seized, and judgment of forfeiture was given. This = judgment was=20 affirmed by the Circuit Court, and the decision of that court is = now here=20 for review.
[18]	As the question raised upon the order for the production by the=20 claimants of the invoice of the twenty-nine cases of glass, and = the=20 proceedings had thereon, is not only an important one in the = determination=20 of the present case, but is a very grave question of = constitutional law,=20 involving the personal security, and privileges and immunities of = the=20 citizen, we will set forth the order at large. After the title of = the=20 court and term, it reads as follows, to wit:
[19]	"The United States of America against E.A.B., 1-35, Thirty-five = Cases=20 of Plate Glass.
[20]	"Whereas the attorney of the United States for the Southern = District=20 of New York has filed in this court a written motion in the = above-entitled=20 action, showing that said action is a suit or proceeding other = than=20 criminal, arising under the customs revenue laws of the United = States, and=20 not for penalties, now pending undetermined in this court, and = that in his=20 belief a certain invoice or paper belonging to and under the = control of=20 the claimants herein will tend to prove certain allegations set = forth in=20 said written motion, hereto annexed, made by him on behalf of the = United=20 States in said action, to wit, the invoice from the Union Plate = Glass=20 Company or its agents, covering the twenty-nine cases of plate = glass=20 marked G.H.B., imported from Liverpool, England, into the port of = New York=20 in the vessel Baltic, and entered by E.A. Boyd & Sons at the = office of=20 the collector of customs of the port and collection district = aforesaid on=20 April 7th, 1884, on entry No. 47,108:
[21]	"Now, therefore, by virtue of the power in the said court vested = by=20 section 5 of the act of June 22, 1874, entitled 'An act to amend = the=20 customs-revenue laws and to repeal moieties,' it is ordered that a = notice=20 under the seal of this court, and signed by the clerk thereof, be = issued=20 to the claimants, requiring them to produce the invoice or paper = aforesaid=20 before this court in the court-rooms thereof in the United States=20 post-office and court-house building in the city of New York on = October=20 16th, 1884, at eleven o'clock a.m., and thereafter at such other = times as=20 the court shall appoint, and that said United States attorney and = his=20 assistants and such persons as he shall designate shall be allowed = before=20 the court, and under its direction and in the presence of the = attorneys=20 for the claimants, if they shall attend, to make examination of = said=20 invoice or paper and to take copies thereof; but the claimants or = their=20 agents or attorneys shall have, subject to the order of the court, = the=20 custody of such invoice or paper, except pending such=20 examination."
[22]	The 5th section of the act of June 22, 1874, under which this = order=20 was made, is in the following words, to wit:
[23]	"In all suits and proceedings other than criminal arising under = any of=20 the revenue laws of the United States, the attorney representing = the=20 government, whenever in his belief any business book, invoice, or = paper=20 belonging to, or under the control of, the defendant or claimant, = will=20 tend to prove any allegation made by the United States, may make a = written=20 motion, particularly describing such book, invoice, or paper, and = setting=20 forth the allegation which he expects to prove; and thereupon the = court in=20 which suit or proceeding is pending may, at its discretion, issue = a notice=20 to the defendant or claimant to produce such book, invoice, or = paper in=20 court, at a day and hour to be specified in said notice, which, = together=20 with a copy of said motion, shall be served formally on the = defendant or=20 claimant by the United States marshal by delivering to him a = certified=20 copy thereof, or otherwise serving the same as original notices of = suit in=20 the same court are served; and if the defendant or claimant shall = fail or=20 refuse to produce such book, invoice, or paper in obedience to = such=20 notice, the allegations stated in the said motion shall be taken = as=20 confessed, unless his failure or refusal to produce the same shall = be=20 explained to the satisfaction of the court. And if produced the = said=20 attorney shall be permitted, under the direction of the court, to = make=20 examination (at which examination the defendant, or claimant, or = his=20 agent, may be present) of such entries in said book, invoice, or = paper as=20 relate to or tend to prove the allegation aforesaid, and may offer = the=20 same in evidence on behalf of the United States. But the owner of = said=20 books and papers, his agent or attorney, shall have, subject to = the order=20 of the court, the custody of them, except pending their = examination in=20 court as aforesaid." 18 Stat. 187.
[24]	This section was passed in lieu of the 2d section of the act of = March=20 2, 1867, entitled "An act to regulate the Disposition of the = Proceeds of=20 Fines, Penalties, and Forfeitures incurred under the Laws relating = to the=20 Customs and for other Purposes," 14 Stat. 547, which section of = said=20 last-mentioned statute authorized the district judge, on complaint = and=20 affidavit that any fraud on the revenue had been committed by any = person=20 interested or engaged in the importation of merchandise, to issue = his=20 warrant to the marshal to enter any premises where any invoices, = books, or=20 papers were deposited relating to such merchandise, and take = possession of=20 such books and papers and produce them before said judge, to be = subject to=20 his order, and allowed to be examined by the collector, and to be = retained=20 as long as the judge should deem necessary. This law being in = force at the=20 time of the revision, was incorporated into =C2=A7=C2=A7 3091, = 3092, 3093 of the=20 Revised Statutes.
[25]	The section last recited was passed in lieu of the 7th section = of the=20 act of March 3, 1863, entitled "An act to prevent and punish = Frauds upon=20 the Revenue, to provide for the more certain and speedy Collection = of=20 Claims in Favor of the United States, and for other Purposes." 12 = Stat.=20 737. The 7th section of this act was in substance the same as the = 2d=20 section of the act of 1867, except that the warrant was to be = directed to=20 the collector instead of the marshal. It was the first legislation = of the=20 kind that ever appeared on the statute book of the United States, = and, as=20 seen from its date, was adopted at a period of great national = excitement,=20 when the powers of the government were subjected to a severe = strain to=20 protect the national existence.
[26]	The clauses of the Constitution, to which it is contended that = these=20 laws are repugnant, are the Fourth and Fifth Amendments.The Fourth = declares, "The right of the people to be secure in their persons, = houses,=20 papers, and effects, against unreasonable searches and seizures, = shall not=20 be violated, and no warrants shall issue, but upon probable cause, = supported by oath or affirmation, and particularly describing the = place to=20 be searched, and the persons or things to be seized." The Fifth = Article,=20 amongst other things, declares that no person "shall be compelled = in any=20 criminal case to be a witness against himself."
[27]	But, in regard to the Fourth Amendment, it is contended that, = whatever=20 might have been alleged against the constitutionality of the acts = of 1863=20 and 1867, that of 1874, under which the order in the present case = was=20 made, is free from constitutional objection, because it does not = authorize=20 the search and seizure of books and papers, but only requires the=20 defendant or claimant to produce them. That is so; but it declares = that if=20 he does not produce them, the allegations which it is affirmed = they will=20 prove shall be taken as confessed. This is tantamount to = compelling their=20 production; for the prosecuting attorney will always be sure to = state the=20 evidence expected to be derived from them as strongly as the case = will=20 admit of. It is true that certain aggravating incidents of actual = search=20 and seizure, such as forcible entry into a man's house and = searching=20 amongst his papers, are wanting, and to this extent the proceeding = under=20 the act of 1874 is a mitigation of that which was authorized by = the former=20 acts; but it accomplishes the substantial object of those acts in = forcing=20 from a party evidence against himself. It is our opinion, = therefore, that=20 a compulsory production of a man's private papers to establish a = criminal=20 charge against him, or to forfeit his property, is within the = scope of the=20 Fourth Amendment to the Constitution, in all cases in which a = search and=20 seizure would be; because it is a material ingredient, and effects = the=20 sole object and purpose of search and seizure.
[28]	The principal question, however, remains to be considered. Is a = search=20 and seizure, or, what is equivalent thereto, a compulsory = production of a=20 man's private papers, to be used in evidence against him in a = proceeding=20 to forfeit his property for alleged fraud against the revenue laws = -- is=20 such a proceeding for such a purpose an "unreasonable search and = seizure"=20 within the meaning of the Fourth Amendment of the Constitution? = or, is it=20 a legitimate proceeding? It is contended by the counsel for the=20 government, that it is a legitimate proceeding, sanctioned by long = usage,=20 and the authority of judicial decision. No doubt long usage, = acquiesced in=20 by the courts, goes a long way to prove that there is some = plausible=20 ground or reason for it in the law, or in the historical facts = which have=20 imposed a particular construction of the law favorable to such = usage. It=20 is a maxim that, consuetudo est optimus interpres legum; and = another maxim=20 that, contemporanea expositio est optima et fortissima in lege. = But we do=20 not find any long usage, or any contemporary construction of the = Const=20 tution, which would justify any of the acts of Congress now under=20 consideration. As before stated, the act of 1863 was the first act = in this=20 country, and, we might say, either in this country or in England, = so far=20 as we have been able to ascertain, which authorized the search and = seizure=20 of a man's private papers, or the compulsory production of them, = for the=20 purpose of using them in evidence against him in a criminal case, = or in a=20 proceeding to enforce the forfeiture of his property. Even the act = under=20 which the obnoxious writs of assistance were issued fn1 did not go as far as this, but only = authorized the=20 examination of ships and vessels, and persons found therein, for = the=20 purpose of finding goods prohibited to be imported or exported, or = on=20 which the duties were not paid, and to enter into and search any = suspected=20 vaults, cellars, or warehouses for such goods. The search for and = seizure=20 of stolen or forfeited goods, or goods liable to duties and = concealed to=20 avoid the payment thereof, are totally different things from a = search for=20 and seizure of a man's private books and papers for the purpose of = obtaining information therein contained, or of using them as = evidence=20 against him. The two things differ toto coelo. In the one case, = the=20 government is entitled to the possession of the property; in the = other it=20 is not. The seizure of stolen goods is authorized by the common = law; and=20 the seizure of goods forfeited for a breach of the revenue laws, = or=20 concealed to avoid the duties payable on them, has been authorized = by=20 English statutes for at least two centuries past; fn2 and the like seizures have been authorized = by our own=20 revenue acts from the commencement of the government. The first = statute=20 passed by Congress to regulate the collection of duties, the act = of July=20 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As = this act=20 was passed by the same Congress which proposed for adoption the = original=20 amendments to the Constitution, it is clear that the members of = that body=20 did not regard searches and seizures of this kind as = "unreasonable," and=20 they are not embraced within the prohibition of the amendment. So, = also,=20 the supervision authorized to be exercised by officers of the = revenue over=20 the manufacture or custody of excisable articles, and the entries = thereof=20 in books required by law to be kept for their inspection, are = necessarily=20 excepted out of the category of unreasonable searches and = seizures. So,=20 also, the laws which provide for the search and seizure of = articles and=20 things which it is unlawful for a person to have in his possession = for the=20 purpose of issue or disposition, such as counterfeit coin, lottery = tickets, implements of gambling, &c., are not within this = category.=20 Commonwealth v. Dana, 2 Met. (Mass.) 329. Many other things of = this=20 character might be enumerated. The entry upon premises, made by a = sheriff=20 or other officer of the law, for the purpose of seizing goods and = chattels=20 by virtue of a judicial writ, such as an attachment, a = sequestration, or=20 an execution, is not within the prohibition of the Fourth or Fifth = Amendment, or any other clause of the Constitution; nor is the = examination=20 of a defendant under oath after an ineffectual execution, for the = purpose=20 of discovering secreted property or credits, to be applied to the = payment=20 of a judgment against him, obnoxious to those = amendments.
[29]	But, when examined with care, it is manifest that there is a = total=20 unlikeness of these official acts and proceedings to that which is = now=20 under consideration. In the case of stolen goods, the owner from = whom they=20 were stolen is entitled to their possession; and in the case of = excisable=20 or dutiable articles, the government has an interest in them for = the=20 payment of the duties thereon, and until such duties are paid has = a right=20 to keep them under observation, or to pursue and drag them from=20 concealment; and in the case of goods seized on attachment or = execution,=20 the creditor is entitled to their seizure in satisfaction of his = debt; and=20 the examination of a defendant under oath to obtain a discovery of = concealed property or credits is a proceeding merely civil to = effect the=20 ends of justice, and is no more than what the court of chancery = would=20 direct on a bill for discovery. Whereas, by the proceeding now = under=20 consideration, the court attempts to extort from the party his = private=20 books and papers to make him liable for a penalty or to forfeit = his=20 property.
[30]	In order to ascertain the nature of the proceedings intended by = the=20 Fourth Amendment to the Constitution under the terms "unreasonable = searches and seizures," it is only necessary to recall the = contemporary or=20 then recent history of the controversies on the subject, both in = this=20 country and in England. The practice had obtained in the colonies = of=20 issuing writs of assistance to the revenue officers, empowering = them, in=20 their discretion, to search suspected places for smuggled goods, = which=20 James Otis pronounced "the worst instrument of arbitrary power, = the most=20 destructive of English liberty, and the fundamental principles of = law,=20 that ever was found in an English law book;" since they placed = "the=20 liberty of every man in the hands of every petty officer." *fn3 This was in February, 1761, in Boston, and = the famous=20 debate in which it occurred was perhaps the most prominent event = which=20 inaugurated the resistance of the colonies to the oppressions of = the=20 mother country. "Then and there," said John Adams, "then and there = was the=20 first scene of the first act of opposition to the arbitrary claims = of=20 Great Britain. Then and there the child Independence was=20 born."
[31]	These things, and the events which took place in England = immediately=20 following the argument about writs of assistance in Boston, were = fresh in=20 the memories of those who achieved our independence and = established our=20 form of government. In the period from 1762, when the North Briton = was=20 started by John Wilkes, to April, 1766, when the House of Commons = passed=20 resolutions condemnatory of general warrants, whether for the = seizure of=20 persons or papers, occurred the bitter controversy between the = English=20 government and Wilkes, in which the latter appeared as the = champion of=20 popular rights, and was, indeed, the pioneer in the contest which = resulted=20 in the abolition of some grievous abuses which had gradually crept = into=20 the administration of public affairs. Prominent and principal = among these=20 was the practice of issuing general warrants by the Secretary of = State,=20 for searching private houses for the discovery and seizure of = books and=20 papers that might be used to convict their owner of the charge of = libel.=20 Certain numbers of the North Briton, particularly No. 45, had been = very=20 bold in denunciation of the government, and were esteemed = heinously=20 libellous. By authority of the secretary's warrant Wilkes's house = was=20 searched, and his papers were indiscriminately seized. For this = outrage he=20 sued the perpetrators and obtained a verdict of # 1000 against = Wood, one=20 of the party who made the search, and # 4000 against Lord Halifax, = the=20 Secretary of State who issued the warrant. The case, however, = which will=20 always be celebrated as being the occasion of Lord Camden's = memorable=20 discussion of the subject, was that of Entick v. Carrington and = Three=20 Other King's Messengers, reported at length in 19 Howell's State = Trials,=20 1029. The action was trespass for entering the plaintiff's = dwelling-house=20 in November, 1762, and breaking open his desks, boxes, &c., = and=20 searching and examining his papers. The jury rendered a special = verdict,=20 and the case was twice solemnly argued at the bar. Lord Camden = pronounced=20 the judgment of the court in Michaelmas Term, 1765, and the law as = expounded by him has been regarded as settled from that time to = this, and=20 his great judgment on that occasion is considered as one of the = landmarks=20 of English liberty. It was welcomed and applauded by the lovers of = liberty=20 in the colonies as well as in the mother country. It is regarded = as one of=20 the permanent monuments of the British Constitution, and is quoted = as such=20 by the English authorities on that subject down to the present = time. *fn4
[32]	As every American statesmen, during our revolutionary and = formative=20 period as a nation, was undoubtedly familiar with this monument of = English=20 freedom, and considered it as the true and ultimate expression of=20 constitutional law, it may be confidently asserted that its = propositions=20 were in the minds of those who framed the Fourth Amendment to the=20 Constitution, and were considered as sufficiently explanatory of = what was=20 meant by unreasonable searches and seizures. We think, therefore, = it is=20 pertinent to the present subject of discussion to quote somewhat = largely=20 from this celebrated judgment.
[33]	After describing the power claimed by the Secretary of State for = issuing general search warrants, and the manner in which they were = executed, Lord Camden says: "Such is the power, and, therefore, = one would=20 naturally expect that the law to warrant it should be clear in = proportion=20 as the power is exorbitant. If it is law, it will be found in our = books;=20 if it is not to be found there, it is not law.
[34]	"The great end for which men entered into society was to secure = their=20 property. That right is preserved sacred and incommunicable in all = instances where it has not been taken away or abridged by some = public law=20 for the good of the whole. The cases where this right of property = is set=20 aside by positive law are various. Distresses, executions, = forfeitures,=20 taxes, &c., are all of this description, wherein every man by = common=20 consent gives up that right for the sake of justice and the = general good.=20 By the laws of England, every invasion of private property, be it = ever so=20 minute, is a trespass. No man can set his foot upon my ground = without my=20 license, but he is liable to an action though the damage be = nothing; which=20 is proved by every declaration in trespass where the defendant is = called=20 upon to answer for bruising the grass and even treading upon the = soil. If=20 he admits the fact, he is bound to show, by way of justification, = that=20 some positive law has justified or excused him. The justification = is=20 submitted to the judges, who are to look into the books, and see = if such a=20 justification can be maintained by the text of the statute law, or = by the=20 principles of the common law. If no such excuse can be found or = produced,=20 the silence of the books is an authority, against the defendant, = and the=20 plaintiff must have judgment. According to this reasoning, it is = now=20 incumbent upon the defendants to show the law by which this = seizure is=20 warranted. If that cannot be done, it is a = trespass.
[35]	"Papers are the owner's goods and chattels; they are his dearest = property; and are so far from enduring a seizure, that they will = hardly=20 bear an inspection; and though the eye cannot by the laws of = England be=20 guilty of a trespass, yet where private papers are removed and = carried=20 away the secret nature of those goods will be an aggravation of = the=20 trespass, and demand more considerable damages in that respect. = Where is=20 the written law that gives any magistrate such a power? I can = safely=20 answer, there is none; and, therefore, it is too much for us, = without such=20 authority, to pronounce a practice legal which would be subversive = of all=20 the comforts of society.
[36]	"But though it cannot be maintained by any direct law, yet it = bears a=20 resemblance, as was urged, to the known case of search and seizure = for=20 stolen goods. I answer that the difference is apparent. In the = one, I am=20 permitted to seize my own goods, which are placed in the hands of = a public=20 officer, till the felon's conviction shall entitle me to = restitution. In=20 the other, the party's own property is seized before and without=20 conviction, and he has no power to reclaim his goods, even after = his=20 innocence is declared by acquittal.
[37]	"The case of searching for stolen goods crept into the law by=20 imperceptible practice. No less a person than my Lord Coke denied = its=20 legality, 4 Inst. 176; and, therefore, if the two cases resembled = each=20 other more than they do, we have no right, without an act of = Parliament,=20 to adopt a new practice in the criminal law, which was never yet = allowed=20 from all antiquity. Observe, too, the caution with which the law = proceeds=20 in this singular case. There must be a full charge upon oath of a = theft=20 committed. The owner must swear that the goods are lodged in such = a place.=20 He must attend at the execution of the warrant, to show them to = the=20 officer, who must see that they answer the description. . .=20 .
[38]	"If it should be said that the same law which has with so much=20 circumspection guarded the case of stolen goods from mischief, = would like=20 vise in this case protect the subject by adding proper checks; = would=20 require proofs beforehand; would call up the servant to stand by = and=20 overlook; would require him to take an exact inventory, and = deliver a=20 copy: my answer is, that all these precautions would have been = long since=20 established by law, if the power itself had been legal; and that = the want=20 of them is an undeniable argument against the legality of the=20 thing."
[39]	Then, after showing that these general warrants for search and = seizure=20 of papers originated with the Star Chamber, and never had any = advocates in=20 Westminster Hall except Chief Justice Scroggs and his associates, = Lord=20 Camden proceeds to add:
[40]	"Lastly, it is urged as an argument of utility, that such a = search is=20 a means of detecting offenders by discovering evidence. I wish = some cases=20 had been shown, where the law forceth evidence out of the owner's = custody=20 by process. There is no process against papers in civil causes. It = has=20 been often tried, but never prevailed. Nay, where the adversary = has by=20 force or fraud got possession of your own proper evidence, there = is no way=20 to get it back but by action. In the criminal law such a = proceeding was=20 never heard of; and yet there are some crimes, such, for instance, = as=20 murder, rape, robbery, and house-breaking, to say nothing of = forgery and=20 perjury, that are more atrocious than libelling. But our law has = provided=20 no paper-search in these cases to help forward the conviction. = Whether=20 this proceeds from the gentleness of the law towards criminals, or = from a=20 consideration that such a power would be more pernicious to the = innocent=20 than useful to the public, I will not say. It is very certain that = the law=20 obliges no man to accuse himself; because the necessary means of=20 compelling self-accusation, falling upon the innocent as well as = the=20 guilty, would be both cruel and unjust; and it would seem, that = search for=20 evidence is disallowed upon the same principle. Then, too, the = innocent=20 would be confounded with the guilty."
[41]	After a few further observations, his Lordship concluded thus: = "I have=20 now taken notice of everything that has been urged upon the = present point;=20 and upon the whole we are all of opinion, that the warrant to = seize and=20 carry away the party's papers in the case of a seditious libel, is = illegal=20 and void." *fn5
[42]	The principles laid down in this opinion affect the very essence = of=20 constitutional liberty and security. They reach farther than the = concrete=20 form of the case then before the court, with its adventitious=20 circumstances; they apply to all invasions on the part of the = government=20 and its employes of the sanctity of a man's home and the privacies = of=20 life. It is not the breaking of his doors, and the rummaging of = his=20 drawers, that constitutes the essence of the offence; but it is = the=20 invasion of his indefeasible right of personal security, personal = liberty=20 and private property, where that right has never been forfeited by = his=20 conviction of some public offence, -- it is the invasion of this = sacred=20 right which underlies and constitutes the essence of Lord Camden's = judgment. Breaking into a house and opening boxes and drawers are=20 circumstances of aggravation; but any forcible and compulsory = extortion of=20 a man's own testimony or of his private papers to be used as = evidence to=20 convict him of crime or to forfeit his goods, is within the = condemnation=20 of that judgment. In this regard the Fourth and Fifth Amendments = run=20 almost into each other.
[43]	Can we doubt that when the Fourth and Fifth Amendments to the=20 Constitution of the United States were penned and adopted, the = language of=20 Lord Camden was relied on as expressing the true doctrine on the = subject=20 of searches and seizures, and as furnishing the true criteria of = the=20 reasonable and "unreasonable" character of such seizures? Could = the men=20 who proposed those amendments, in the light of Lord Camden's = opinion, have=20 put their hands to a law like those of March 3, 1863, and March 2, = 1867,=20 before recited? If they could not, would they have approved the = 5th=20 section of the act of June 22, 1874, which was adopted as a = substitute for=20 the previous laws? It seems to us that the question cannot admit = of a=20 doubt. They never would have approved of them. The struggles = against=20 arbitrary power in which they had been engaged for more than = twenty years,=20 would have been too deeply engraved in their memories to have = allowed them=20 to approve of such insidious disguises of the old grievance which = they had=20 so deeply abhorred.
[44]	The views of the first Congress on the question of compelling a = man to=20 produce evidence against himself may be inferred from a remarkable = section=20 of the judiciary act of 1789. The 15th section of that act = introduced a=20 great improvement in the law of procedure. The substance of it is = found in=20 =C2=A7 724 of the Revised Statutes, and the section as originally = enacted is as=20 follows, to wit:
[45]	"All the said courts of the United States shall have power in = the=20 trial of actions at law, on motion and due notice thereof being = given, to=20 require the parties to produce books or writings in their = possession or=20 power, which contain evidence pertinent to the issue, in cases and = under=20 circumstances where they might be compelled to produce the same by = the=20 ordinary rules of proceeding in chancery; and if a plaintiff shall = fail to=20 comply with such order to produce books or writings, it shall be = lawful=20 for the courts respectively, on motion, to give the like judgment = for the=20 defendant as in cases of nonsuit; and if a defendant shall fail to = comply=20 with such order to produce books or writings, it shall be lawful = for the=20 courts respectively, on motion as aforesaid, to give judgment = against him=20 or her by default." *fn6
[46]	The restriction of this proceeding to "cases and under cir = cumstances=20 where they [the parties] might be compelled to produce the same = [books or=20 writings] by the ordinary rules of proceeding in chancery," shows = the=20 wisdom of the Congress of 1789. The court of chancery had for = generations=20 been weighing and balancing the rules to be observed in granting = discovery=20 on bills filed for that purpose, in the endeavor to fix upon such = as would=20 best secure the ends of justice. To go beyond the point to which = that=20 court had gone may well have been thought hazardous. Now it is = elementary=20 knowledge, that one cardinal rule of the court of chancery is = never to=20 decree a discovery which might tend to convict the party of a = crime, or to=20 forfeit his property. *fn7 And any compulsory discovery by extorting = the party's=20 oath, or compelling the production of his private books and = papers, to=20 convict him of crime, or to forfeit his property, is contrary to = the=20 principles of a free government. It is abhorrent to the instincts = of an=20 Englishman; it is abhorrent to the instincts of an American. It = may suit=20 the purposes of despotic power; but it cannot abide the pure = atmosphere of=20 political liberty and personal freedom.
[47]	It is proper to observe that when the objectionable features of = the=20 acts of 1863 and 1867 were brought to the attention of Congress, = it passed=20 an act to obviate them. By the act of February 25, 1868, 15 Stat. = 37,=20 entitled "An act for the Protection in certain Cases of Persons = making=20 Disclosures as Parties, or testifying as Witnesses," the substance = of=20 which is incorporated in =C2=A7 860 of the Revised Statutes, it = was enacted=20 "that no answer or other pleading of any party, and no discovery, = or=20 evidence obtained by means of any judicial proceeding from any = party or=20 witness in this or any foreign country, shall be given in = evidence, or in=20 any manner used against such party or witness, or his property or = estate,=20 in any court of the United States, or in any proceeding by or = before any=20 officer of the United States, in respect to any crime, or for the=20 enforcement of any penalty or forfeiture by reason of any act or = omission=20 of such party or witness."
[48]	This act abrogated and repealed the most objectionable part of = the act=20 of 1867 (which was then in force) and deprived the government = officers of=20 the convenient method afforded by it for getting evidence in suits = of=20 forfeiture; and this is probably the reason why the 5th section of = the act=20 of 1874 was afterwards passed. No doubt it was supposed that in = this new=20 form, couched as it was in almost the language of the 15th section = of the=20 old judiciary act, except leaving out the restriction to cases in = which=20 the court of chancery would decree a discovery, it would be free = from=20 constitutional objection. But we think it has been made to appear = that=20 this result has not been attained; and that the law, though very=20 speciously worded, is still obnoxious to the prohibition of the = Fourth=20 Amendment of the Constitution, as well as of the = Fifth.
[49]	It has been thought by some respectable members of the = profession that=20 the two acts, that of 1868 and that of 1874, as being in pari = materia,=20 might be construed together so as to restrict the operation of the = latter=20 to cases other than those of forfeiture; and that such a = construction of=20 the two acts would obviate the necessity of declaring the act of = 1874=20 unconstitutional. But as the act of 1874 was intended as a = revisory act on=20 the subject of revenue frauds and prosecutions therefor, and as it = expressly repeals the 2d section of the act of 1867, but does not = repeal=20 the act of 1868, and expressly excepts criminal suits and = proceedings, and=20 does not except suits for penalties and forfeitures, it would = hardly be=20 admissible to consider the act of 1868 as having any influence = over the=20 construction of the act of 1874. For the purposes of this = discussion we=20 must regard the 5th section of the latter act as independent of = the act of=20 1868.
[50]	Reverting then to the peculiar phraseology of this act, and to = the=20 information in the present case, which is founded on it, we have = to deal=20 with an act which expressly excludes criminal proceedings from its = operation (though embracing civil suits for penalties and = forfeitures),=20 and with an information not technically a criminal proceeding, and = neither, therefore, within the literal terms of the Fifth = Amendment to the=20 Constitution any more than it is within the literal terms of the = Fourth.=20 Does this relieve the proceedings or the law from being obnoxious = to the=20 prohibitions of either? We think not; we think they are within the = spirit=20 of both.
[51]	We have already noticed the intimate relation between the two=20 amendments. They throw great light on each other. For the = "unreasonable=20 searches and seizures" condemned in the Fourth Amendment are = almost always=20 made for the purpose of compelling a man to give evidence against = himself,=20 which in criminal cases is condemned in the Fifth Amendment; and=20 compelling a man "in a criminal case to be a witness against = himself,"=20 which is condemned in the Fifth Amendment, throws light on the = question as=20 to what is an "unreasonable search and seizure" within the meaning = of the=20 Fourth Amendment. And we have been unable to perceive that the = seizure of=20 a man's private books and papers to be used in evidence against = him is=20 substantially different from compelling him to be a witness = against=20 himself. We think it is within the clear intent and meaning of = those=20 terms. We are also clearly of opinion that proceedings instituted = for the=20 purpose of declaring the forfeiture of a man's property by reason = of=20 offences committed by him, though they may be civil in form, are = in their=20 nature criminal. In this very case, the ground of forfeiture as = declared=20 in the 12th section of the act of 1874, on which the information = is based,=20 consists of certain acts of fraud committed against the public = revenue in=20 relation to imported merchandise, which are made criminal by the = statute;=20 and it is declared, that the offender shall be fined not exceeding = $5000=20 nor less than $50, or be imprisoned not exceeding two years, or = both; and=20 in addition to such fine such merchandise shall be forfeited. = These are=20 the penalties affixed to the criminal acts; the forfeiture sought = by this=20 suit being one of them. If an indictment had been presented = against the=20 claimants, upon conviction the forfeiture of the goods could have = been=20 included in the judgment. If the government prosecutor elects to = waive an=20 indictment, and to file a civil information against the claimants = -- that=20 is, civil in form -- can he by this device take from the = proceeding its=20 criminal aspect and deprive the claimants of their immunities as = citizens,=20 and extort from them a production of their private papers, or, as = an=20 alternative, a confession of guilt? This cannot be. The = information,=20 though technically a civil proceeding, is in substance and effect = a=20 criminal one. As showing the close relation between the civil and = criminal=20 proceedings on the same statute in such cases, we may refer to the = recent=20 case of Coffey v. The United States, ante, 436; in which we = decided that=20 an acquittal on a criminal information was a good plea in bar to a = civil=20 information for the forfeiture of goods, arising upon the same = acts. As,=20 therefore, suits for penalties and forfeitures incurred by the = commission=20 of offences against the law, are of this quasi-criminal nature, we = think=20 that they are within the reason of criminal proceedings for all = the=20 purposes of the Fourth Amendment of the Constitution, and of that = portion=20 of the Fifth Amendment which declares that no person shall be = compelled in=20 any criminal case to be a witness against himself; and we are = further of=20 opinion that a compulsory production of the private books and = papers of=20 the owner of goods sought to be forfeited in such a suit is = compelling him=20 to be a witness against himself, within the meaning of the Fifth = Amendment=20 to the Constitution, and is the equivalent of a search and seizure = -- and=20 an unreasonable search and seizure -- within the meaning of the = Fourth=20 Amendment. Though the proceeding in question is divested of many = of the=20 aggravating incidents of actual search and seizure, yet, as before = said,=20 it contains their substance and essence, and effects their = substantial=20 purpose. It may be that it is the obnoxious thing in its mildest = and least=20 repulsive form; but illegitimate and unconstitutional practices = get their=20 first footing in that way, namely, by silent approaches and slight = deviations from legal modes of procedure. This can only be = obviated by=20 adhering to the rule that constitutional provisions for the = security of=20 person and property should be liberally construed. A close and = literal=20 construction deprives them of half their efficacy, and leads to = gradual=20 depreciation of the right, as if it consisted more in sound than = in=20 substance. It is the duty of courts to be watchful for the = constitutional=20 rights of the citizen, and against any stealthy encroachments = thereon.=20 Their motto should be obsta principiis. We have no doubt that the=20 legislative body is actuated by the same motives; but the vast=20 accumulation of public business brought before it sometimes = prevents it,=20 on a first presentation, from noticing objections which become = developed=20 by time and the practical application of the objectionalble=20 law.
[52]	There have been several decisions in the Circuit and District = Courts=20 sustaining the constitutionality of the law under consideration, = as well=20 as the prior laws of 1863 and 1867. The principal of these are = Stockwell=20 v. United States, 3 Clifford, 284; Inre Platt and Boyd, 7 Ben. = 261; United=20 States v. Hughes, 12 Blatchford, 553; United States v. Mason, 6 = Bissell,=20 350; United States v. Three Tons of Coal, 6 Bissell, 379; United = States v.=20 Distillery No. Twenty-eight, 6 Bissell, 483. The first and leading = case=20 was that of Stockwell v. United States, decided by Mr. Justice = Clifford=20 and Judge Shepley, the law under discussion being that of 1867. = Justice=20 Clifford delivered the opinion, and relied principally upon the = collection=20 statutes, which authorized the seizure of goods liable to duty, as = being a=20 contemporaneous exposition of the amendments, and as furnishing = precedents=20 of analogous laws to that complained of. As we have already = considered the=20 bearing of these laws on the subject of discussion, it is = unnecessary to=20 say anything more in relation to them. The learned justice seemed = to think=20 that the power to institute such searches and seizures as the act = of 1867=20 authorized, was necessary to the efficient collection of the = revenue, and=20 that no greater objection can be taken to a warrant to search for = books,=20 invoices, and other papers appertaining to an illegal importation = than to=20 one authorizing a search for the imported goods; and he concluded = that,=20 guarded as the new provision is, it is scarcely possible that the = citizen=20 can have any just ground of complaint. It seems to us that these=20 considerations fail to meet the most serious objections to the = validity of=20 the law. The other cases followed that of Stockwell v. United = States as a=20 precedent, with more or less independent discussion of the = subject. The=20 case of Platt and Boyd, decided in the District Court for the = Southern=20 District of New York, was also under the act of 1867, and the = opinion in=20 that case is quite an elaborate one; but, of course, the previous = decision=20 of the Circuit Court in the Stockwell case had a governing = influence on=20 the District Court. The other cases referred to were under the 5th = section=20 of the act of 1874. The case of United States v. Hughes came up, = first,=20 before Judge Blatchford in the District Court in 1875. 8 Ben. 29. = It was=20 an action of debt to recover a penalty under the customs act, and = the=20 judge held that the 5th section of the act of 1874, in its = application to=20 suits for penalties incurred before the passage of the act, was an = ex post=20 facto law, and therefore, as to them, was unconstitutional and = void; but=20 he granted an order pro forma to produce the books and papers = required, in=20 order that the objection might come up on the offer to give them = in=20 evidence. They were produced in obedience to the order, and = offered in=20 evidence by the district attorney, but were not admitted. The = district=20 attorney then served upon one of the defendants a subpoena duces = tecum,=20 requiring him to produce the books and papers; and this being = declined, he=20 moved for an order to compel him to produce them; but the Court = refused to=20 make such order. The books and papers referred to had been seized = under=20 the act of 1867, but were returned to the defendants under a = stipulation=20 to produce them on the trial. The defendants relied not only on = the=20 unconstitutionality of the laws, but on the act of 1868, before = referred=20 to, which prohibited evidence obtained from a party by a judicial=20 proceeding from being used against him in any prosecution for a = crime,=20 penalty, or forfeiture. Judgment being rendered for the defendant, = the=20 case was carried to the Circuit Court by writ of error, and, in = that=20 court, Mr. Justice Hunt held that the act of 1868 referred only to = personal testimony or discovery obtained from a party or witness, = and not=20 to books or papers wrested from him; and, as to the = constitutionality of=20 the law, he merely referred to the case of Stockwell, and the = judgment of=20 the District Court was reversed. In view of what has been already = said, we=20 think it unnecessary to make any special observations on this = decision. In=20 United States v. Mason, Judge Blodgett took the distinction that, = in=20 proceedings in rem for a forfeiture, the parties are not required = by a=20 proceeding under the act of 1874 to testify or furnish evidence = against=20 themselves, because the suit is not against them, but against the=20 property. But where the owner of the property has been admitted as = a=20 claimant, we cannot see the force of this distinction; nor can we = assent=20 to the proposition that the proceeding is not, in effect, a = proceeding=20 against the owner of the property, as well as against the goods; = for it is=20 his breach of the laws which has to be proved to establish the = forfeiture,=20 and it is his property which is sought to be forfeited; and to = require=20 such an owner to produce his private books and papers, in order to = prove=20 his breach of the laws, and thus to establish the forfeiture of = his=20 property, is surely compelling him to furnish evidence against = himself. In=20 the words of a great judge, "Goods, as goods, cannot offend, = forfeit,=20 unlade, pay duties, or the like, but men whose goods they are." *fn8
[53]	The only remaining case decided in the United States courts to = which=20 we shall advert is that of United States v. Distillery No. = Twenty-eight.=20 In that case Judge Gresham adds to the view of Judge Blodgett, in = United=20 States v. Mason, the further suggestion, that as in a proceeding = in rem=20 the owner is not a party, he might be compelled by a subpoena = duces tecum=20 to produce his books and papers like any other witness; and that = the=20 warrant or notice for search and seizure, under the act of 1874, = does=20 nothing more. But we cannot say that we are any better satisfied = with this=20 supposed solution of the difficulty. The assumption that the owner = may be=20 cited as a witness in a proceeding to forfeit his property seems = to us=20 gratuitous. It begs the question at issue. A witness, as well as a = party,=20 is protected by the law from being compelled to give evidence that = tends=20 to criminate him, or to subject his property to forfeiture. Queen = v.=20 Newell, Parker, 269; 1 Greenleaf on Evid., =C2=A7=C2=A7 451-453. = But, as before=20 said, although the owner of goods, sought to be forfeited by a = proceeding=20 in rem, is not the nominal party, he is, nevertheless, the = substantial=20 party to the suit; he certainly is so, after making claim and = defence;=20 and, in a case like the present, he is entitled to all the = privileges=20 which appertain to a person who is prosecuted for a forfeiture of = his=20 property by reason of committing a criminal = offence.
[54]	We find nothing in the decisions to change our views in relation = to=20 the principal question at issue.
[55]	We think that the notice to produce the invoice in this case, = the=20 order by virtue of which it was issued, and the law which = authorized the=20 order, were unconstitutional and void, and that the inspection by = the=20 district attorney of said invoice, when produced in obedience to = said=20 notice, and its admission in evidence by the court, were erroneous = and=20 unconstitutional proceedings. We are of opinion, therefore,=20 that
[56]	The judgment of the Circuit Court should be reversed, and the = cause=20 remanded, with directions to award a new trial.
[57]	MR. JUSTICE MILLER, with whom was the CHIEF JUSTICE,=20 concurring:
[58]	I concur in the judgment of the court, reversing that of the = Circuit=20 Court, and in so much of the opinion of this court as holds the = 5th=20 section of the act of 1874 void as applicable to the present=20 case.
[59]	I am of opinion that this is a criminal case within the meaning = of=20 that clause of the Fifth Amendment to the Constitution of the = United=20 States which declares that no person "shall be compelled in any = criminal=20 case to be a witness against himself."
[60]	And I am quite satisfied that the effect of the act of Congress = is to=20 compel the party on whom the order of the court is served to be a = witness=20 against himself. The order of the court under the statute is in = effect a=20 subpoena duces tecum, and, though the penalty for the witness's = failure to=20 appear in court with the criminating papers is not fine and = imprisonment,=20 it is one which may be made more severe, namely, to have charges = against=20 him of a criminal nature, taken for confessed, and made the = foundation of=20 the judgment of the court. That this is within the protection = which the=20 Constitution intended against compelling a person to be a witness = against=20 himself, is, I think, quite clear.
[61]	But this being so, there is no reason why this court should = assume=20 that the action of the court below, in requiring a party to = produce=20 certain papers as evidence on the trial, authorizes an = unreasonable search=20 or seizure of the house, papers, or effects of that = party.
[62]	There is in fact no search and no seizure authorized by the = statute.=20 No order can be made by the court under it which requires or = permits=20 anything more than service of notice on a party to the suit. That = there=20 may be no mistake as to the effect of the statute and the power to = be=20 exercised under it, I give the section here = verbatim:
[63]	"SEC. 5. That in all suits and proceedings other than criminal = arising=20 under any of the revenue laws of the United States, the attorney=20 representing the Government, whenever, in his belief, any business = book,=20 invoice, or paper, belonging to or under the control of the = defendant or=20 claimant, will tend to prove any allegation made by the United = States, may=20 make a written motion, particularly describing such book, invoice, = or=20 paper, and setting forth the allegation which he expects to prove; = and=20 thereupon the court in which suit or proceeding is pending may, at = its=20 discretion, issue a notice to the defendant or claimant to produce = such=20 book, invoice, or paper, in court, at a day and hour to be = specified in=20 said notice, which, together with a copy of said motion, shall be = served=20 formally on the defendant or claimant, by the United States = marshal, by=20 delivering to him a certified copy thereof, or otherwise serving = the same=20 as original notices of suit in the same court are served; and if = the=20 defendant or claimant shall fail or refuse to produce such book, = invoice,=20 or paper in obedience to such notice, the allegations stated in = the said=20 motion shall be taken as confessed, unless his failure or refusal = to=20 produce the same shall be explained to the satisfaction of the = court. And=20 if produced, the said attorney shall be permitted, under the = direction of=20 the court, to make examination (at which examination the defendant = or=20 claimant, or his agent, may be present) of such entries in said = book,=20 invoice, or paper as relate to or tend to prove the allegation = aforesaid,=20 and may offer the same in evidence on behalf of the United States. = But the=20 owner of said books and papers, his agent or attorney, shall have, = subject=20 to the order of the court, the custody of them, except pending = their=20 examination in court as aforesaid." 18 Stat. = 187.
[64]	Nothing in the nature of a search is here hinted at. Nor is = there any=20 seizure, because the party is not required at any time to part = with the=20 custody of the papers. They are to be produced in court, and, when = produced, the United States attorney is permitted, under the = direction of=20 the court, to make examination in presence of the claimant, and = may offer=20 in evidence such entries in the books, invoices, or papers as = relate to=20 the issue. The act is careful to say that "the owner of said books = and=20 papers, his agent or attorney, shall have, subject to the order of = the=20 court, the custody of them, except pending their examination in = court as=20 aforesaid."
[65]	The Fourth Amendment says: "The right of the people to be secure = in=20 their persons, houses, papers, and effects, against unreasonable = searches=20 and seizures, shall not be violated, and no warrant shall issue, = but upon=20 probable cause, supported by oath or affirmation, and particularly = describing the place to be searched and the person or thing to be=20 seized."
[66]	The things here forbidden are two -- search and seizure. And not = all=20 searches nor all seizures are forbidden, but only those that are=20 unreasonable. Reasonable searches, therefore, may be allowed, and = if the=20 thing sought be found, it may be seized.
[67]	But what search does this statute authorize? If the mere service = of a=20 notice to produce a paper to be used as evidence, which the party = can obey=20 or not as he chooses is a search, then a change has taken place in = the=20 meaning of words, which has not come within my reading, and which = I think=20 was unknown at the time the Constitution was made. The searches = meant by=20 the Constitution were such as led to seizure when the search was=20 successful. But the statute in this case uses language carefully = framed to=20 forbid any seizure under it, as I have already pointed = out.
[68]	While the framers of the Constitution had their attention drawn, = no=20 doubt, to the abuses of this power of searching private houses and = seizing=20 private papers, as practiced in England, it is obvious that they = only=20 intended to restrain the abuse, while they did not abolish the = power.=20 Hence it is only unreasonable searches and seizures that are = forbidden,=20 and the means of securing this protection was by abolishing = searches under=20 warrants, which were called general warrants, because they = authorized=20 searches in any place, for thing.
[69]	This was forbidden, while searches founded on affidavits, and = made=20 under warrants which described the thing to be searched for, the = person=20 and place to be searched, are still permitted.
[70]	I cannot conceive how a statute aptly framed to require the = production=20 of evidence in a suit by mere service of notice on the party, who = has that=20 evidence in his possession, can be held to authorize an = unreasonable=20 search or seizure, when no seizure is authorized or permitted by = the=20 statute.
[71]	I am requested to say that the CHIEF JUSTICE concurs in this=20 opinion.

	Opinion Footnotes

[72]	*fn1 13 & 14 Car. 2, c. 11, =C2=A7 = 5.
[73]	*fn2 12 Car. 2, c. 19; 13 & 14 Car. 2, c. 11; = 6 & 7=20 W. & M., c. 1; 6 Geo. 1, c. 21; 26 Geo. 3, c. 59; 29 Geo. 3, = c. 68, =C2=A7=20 153; &c.; and see the article "Excise, &c.," in Burn's = Justice,=20 and Williams's Justice, passim, and Evans's Statutes, vol. 2, p. = 221,=20 sub-pages 176, 190, 225, 361, 431, = 447.
[74]	*fn3 Cooley's Constitutional Limitations, = 301-303, (5th ed.=20 368, 369). A very full and interesting account of this discussion = will be=20 found in the works of John Adams, vol. 2, Appendix A, pp. 523-525; = vol.=20 10, pp. 183, 233, 244, 256, &c., and in Quincy's Reports, pp. = 469-482;=20 and see Paxton's Case, do. 51-57, which was argued in November of = the same=20 year (1761). An elaborate history of the writs of assistance is = given in=20 the Appendix to Quincy's Reports, above referred to, written by = Horace=20 Gray, Jr., Esq., now a member of this = court.
[75]	*fn4 See May's Constitutional History of England, = vol. 3,=20 (American ed., vol 2) chap. 11; Broom's Constitutional Law, 558; = Cox's=20 Institutions of the English Government, = 437.
[76]	*fn5 See further as to searches and seizures, = Story on the=20 Constitution, =C2=A7=C2=A7 1901, 1902, and notes; Cooley's = Constitutional=20 Limitations, 299, (5th ed. 365); Sedgwick on Stat. and Const. Law, = 2d Ed.=20 498; Wharton Com. on Amer. Law, =C2=A7 560; Robinson v. = Richardson, 13 Gray,=20 454.
[77]	*fn6 Sixty-two years later a similar act was = passed in=20 England, viz., the act of 14 and 15 Vict., c. 99, =C2=A7 6. See = Pollock on=20 Power of Courts to compel production of Documents, = 5.
[78]	*fn7 See Pollock on Production of Documents, 27; = 77 Law.=20 Lib 12[8].
[79]	*fn8 Vaughan, C.J., in Sheppard v. Gosnold, = Vaugh. 159,=20 172, approved by Ch. Baron Parker in Mitchell qui tam v. Torup, = Parker,=20 227, = 236.

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