slavery of white men that existed in England,1 and no other ever became established within the realm. Slavery was permitted, and, indeed, fostered, in the Colonies; in part because a profit was made of the trade, and in part also because it was supposed that the peculiar products of some of them could not be profitably cultivated with free labor; and at times masters brought their slaves with them to England and removed them again without question, until in Sommersett's case, in 1771, it was ruled by Lord Mansfield that slavery was repugnant to the common law, and to bring a slave to England was to emancipate him.2 The same opinion had been previously expressed by Lord Holt, but without authoritative decision.3

In Scotland a condition of servitude continued to a later period. The holding of negroes in slavery was, indeed, held to be illegal

1 Macaulay says the chief instrument of emancipation was the Christian religion. History of England, ch. 1. Mackintosh also attributes great influence to the priesthood in this reform, not only by their direct appeals to the conscience, but by the judges, who were ecclesiastics, multiplying presumptions and rules of evidence consonant to the equal and humane spirit which breathes throughout the morality of the Gospel. History of England, ch. 4. Hume seems to think emancipation was brought about by selfish considerations on the part of the barons, and from a conviction that the returns from their lands would be increased by changing villeinage into socage tenures. History of England, ch. 23.

Lofft's Rep. 18; 20 Howell's St. Trials, 1; Life of Granville Sharp, by Hoare, ch. 4; Hurd's Law of Freedom and Bondage, vol. 1, 189.

3 Smith v. Brown, 2 Salk. 666. "The plaintiff declared in indebitatus assumpsit for 201. for a negro sold by the plaintiff to the defendant, namely, in Parochia beatæ Mariæ de Arcubus in Warda de Cheape, and verdict for plaintiff, and on motion in arrest of judgment Holt, Ch. J., held, that as soon as a negro comes into England he becomes free: one may be a villein in England, but not a slave. And per Powell, J., in a villein the owner has property, but it is an inheritance; in a word he has property, but it is a chattel real: the law took no notice of a negro. Holt, Ch. J.: You should have averred in your declaration that the sale was in Virginia, and by the laws of that country negroes are salable: for the laws of England do not extend to Virginia: being a conquered country, their law is what the king pleases; and we cannot take notice of it but as set forth wherefore he directed the plaintiff should amend, and the declaration should be made, that the defendant was indebted to the plaintiff for a negro sold here in London, but that the said negro at the time of the sale was in Virginia, and that negroes by the laws and statutes of Virginia are salable as chattels. Then the attorneygeneral, coming in, said they were inheritances, and transferable by deed, and not without. And nothing was done." See also Smith v. Gould, Ld. Raym. 1274, S. C., Salk. 666. There is a learned note in Quincy's Rep. p. 94, collecting the English authorities on the subject of slavery.

soon after the Sommersett case; but the salters and colliers did not acquire their freedom until 1799, nor without an act of Parliament.1 A previous statute for their enfranchisement through judicial proceedings had proved ineffectual.2

The history of slavery in this country pertains rather to general history than to a work upon constitutional law. Throughout the land involuntary servitude is abolished by constitutional amendment, except in the punishment of crime. Nor will the exception permit the convict to be subjected to other servitude than such as is under the control and direction of the public authorities, in the manner heretofore customary. The laws of the various States permit the letting of the services of the convicts, either singly or in gross, to contractors who are to employ them in mechanical trades within or near the prison, and under the surveillance of its officers; but it might well be 'doubted if a law which should allow the convict to be placed upon the auction-block and sold to the highest bidder, either for life or for a less period, was in harmony with the spirit of the constitutional prohibition. It is certain that it would be open to very grave abuses, and it is so inconsistent with the general sentiment in countries where slavery does not exist, that it may well be believed not to have been within the understanding of the people in incorporating the exception with the prohibitory amendment.

Unreasonable Searches and Seizures.

Near in importance to exemption from any arbitrary control of the person is that maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers even against the process of the law, except in a few specified cases. The maxim that "every man's house is his castle ".3 is made a

3 Broom's Maxims, 321. Every one remembers the eloquent passage from Chatham: "The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement." Speech on General Warrants. And see Lieber,, Civil Liberty and Self-Government, ch. 6.

part of our constitutional law in the clause prohibiting unreasonable searches and seizures; and in the protection it affords, it is worthy of all the encomiums which have been bestowed upon it.

If in English history we inquire into the original occasion for these constitutional provisions, we shall probably find that they had their origin in the abuse of executive authority, and in the unwarrantable intrusion of executive agents into the houses and among the private papers of individuals, in order to obtain evidence of political or intended political offences. The final overthrow of this practice is so clearly and succinctly stated in a recent work on the constitutional history of England, that we cannot refrain from copying therefrom in the note.1

1 "Among the remnants of a jurisprudence which had favored prerogative at the expense of liberty was that of the arrest of persons under general warrants, without previous evidence of their guilt or identification of their persons. This practice survived the revolution, and was continued without question, on the ground of usage, until the reign of Geo. III., when it received its death-blow from the boldness of Wilkes and the wisdom of Lord Camden. This question was brought to an issue by No. 45 of the North Briton,' already so often mentioned. There was the libel, but who was the libeller? Ministers knew not, nor waited

to inquire, after the accustomed forms of law; but forthwith Lord Halifax, one of the secretaries of state, issued a warrant, directing four messengers, taking with them a constable, to search for the authors, printers, and publishers; and to apprehend and seize them, together with their papers, and bring them in safe custody before him. No one having been charged or even suspected, no evidence of crime having been offered, no one was named in this dread instrument. The offence only was pointed at, not the offender. The magistrate who should have sought proofs of crime deputed this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders; and, unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days they arrested no less than fortynine persons on suspicion, many as innocent as Lord Halifax himself. Among the number was Dryden Leach, a printer, whom they took from his bed at night. They seized his papers, and even apprehended his journeymen and servants. He had printed one number of the 'North Briton,' and was then reprinting some other numbers; but as he happened not to have printed No. 45, he was released without being brought before Lord Halifax. They succeeded, however, in arresting Kearsley the publisher, and Balfe the printer, of the obnoxious number, with all their workmen. From them it was discovered that Wilkes was the culprit of whom they were in search; but the evidence was not on oath; and the messengers received verbal directions to apprehend Wilkes under the general warrant. Wilkes, far keener than the crown lawyers, not seeing his own name there, declared it a ridiculous warrant against the whole English nation,' and refused to obey it. But after being in custody of the messengers for some hours, in his

The history of this controversy should be read in connection with that in America immediately previous to the American Revoown house, he was taken away in a chair, to appear before the Secretaries of State. No sooner had he been removed than the messengers, returning to his house, proceeded to ransack his drawers; and carried off all his private papers, including even his will and his pocket-book. When brought into the presence of Lord Halifax and Lord Egremont, questions were put to Wilkes which he refused to answer whereupon he was committed close prisoner to the Tower, denied the use of pen and paper, and interdicted from receiving the visits of his friends or even of his professional advisers. From this imprisonment, however, he was shortly released on a writ of habeas corpus, by reason of his privilege as a member of the House of Commons.

"Wilkes and the printers, supported by Lord Temple's liberality, soon questioned the legality of the general warrant. First, several journeymen printers brought action against the messengers. On the first trial, Lord Chief Justice Pratt - not allowing bad precedents to set aside the sound principles of English law held that the general warrant was illegal; that it was illegally executed; and that the messengers were not indemnified by statute. The journeymen recovered three hundred pounds damages; and the other plaintiffs also obtained verdicts. In all these cases, however, bills of exceptions were tendered and allowed. Mr. Wilkes himself brought an action against Mr. Wood, under-secretary of state, who had personally superintended the execution of the warrant. At this trial it was proved that Mr. Wood and the messengers, after Wilkes's removal in custody, had taken entire possession of his house, refusing admission to his friends; had sent for a blacksmith, who opened the drawers of his bureau; and having taken out the papers, had carried them away in a sack, without taking any list or inventory. All his private manuscripts were seized, and his pocket-book filled up the mouth of the sack. Lord Halifax was examined, and admitted that the warrant had been made out three days before he had received evidence that Wilkes was the author of the North Briton.' Lord Chief Justice Pratt thus spoke of the warrant: The defendant claimed a right, under precedents, to force persons' houses, break open escritoires, and seize their papers upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.' The jury found a verdict for the plaintiff with one thousand pounds damages.

"Four days after Wilkes had obtained his verdict against Mr. Wood, Dryden Leach, the printer, gained another verdict, with four hundred pounds damages against the messengers. A bill of exceptions, however, was tendered and received in this as in other cases, and came on for hearing before the Court of King's Bench in 1765. After much argument, and the citing of precedents showing the practice of the secretary of state's office ever since the revolution, Lord Mansfield pronounced the warrant illegal, saying: 'It is not fit that the judging of he information should be left to the discretion of the officer. The magistrate

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lution, in regard to writs of assistance issued by the courts to the revenue officers, empowering them, at their discretion, to search should judge, and give certain directions to the officer.' The other three judges agreed that the warrant was illegal and bad, believing that no degree of antiquity can give sanction to an usage bad in itself.' The judgment was therefore affirmed. "Wilkes had also brought actions for false imprisonment against both the secretaries of state. Lord Egremont's death put an end to the action against him; and Lord Halifax, by pleading privilege, and interposing other delays unworthy of his position and character, contrived to put off his appearance until after Wilkes had been outlawed, when he appeared and pleaded the outlawry. But at length, in 1769, no further postponement could be contrived; the action was tried, and Wilkes obtained no less than four thousand pounds damages. Not only in this action, but throughout the proceedings, in which persons aggrieved by the general warrant had sought redress, the government offered an obstinate and vexatious resistance. The defendants were harassed by every obstacle which the law permitted, and subjected to ruinous costs. The expenses which government, itself incurred in these various actions were said to have amounted to one hundred thousand pounds.

"The liberty of the subject was further assured at this period by another remarkable judgment of Lord Camden. In November, 1762, the Earl of Halifax, as secretary of state, had issued a warrant directing certain messengers, taking a constable to their assistance, to search for John Entinck, clerk, the author or one concerned in the writing of several numbers of the 'Monitor, or British Freeholder,' and to seize him, together with his books and papers, and bring him in safe custody before the secretary of state. In execution of this warrant, the messengers apprehended Mr. Entinck in his house, and seized the books and papers in his bureau, writing-desk, and drawers. This case differed from that of Wilkes, as the warrant specified the name of the person against whom it was directed. In respect of the person, it was not a general warrant; but as regards the papers, it was a general search-warrant, not specifying any particular papers to be seized, but giving authority to the messengers to take all his books and papers according to their discretion.

"Mr. Entinck brought an action of trespass against the messengers for the seizure of his papers, upon which a jury found a special verdict, with three hundred pounds damages. This special verdict was twice learnedly argued before the Court of Common Pleas, where, at length, in 1765, Lord Camden pronounced an elaborate judgment. He even doubted the right of the secretary of state to commit persons at all, except for high treason; but in deference to prior decisions, the court felt bound to acknowledge the right. The main question, however, was the legality of a search-warrant for papers. If this point should be determined in favor of the jurisdiction,' said Lord Camden, 'the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall see fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' This power, so assumed by the secretary of state, is an execution upon all the party's papers in the first instance. His house is rifled; his most valuable papers are taken out of his possession, before the paper, for which he is

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