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ences there should be noted the further circumstance, that a class of freemen was always near to the slaves in condition and suffering, with whom they were in association, and between whom and themselves there were frequent intermarriages, and that from these to the highest order in the State there were successive grades; the children of the highest gradually finding their way into those below them, and ways being open by which the children of the lowest might advance themselves, by intelligence, energy, or thrift, through the successive grades above them, until the descendants of dukes and earls were found cultivating the soil, and the man of obscure descent winning a place among the aristocracy of the realm, through his successful exertions at the bar, or his services to the State. Inevitably these influences must at length overthrow the * slavery (* 298] of white men which existed in England, 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 into England was to emancipate him.4 shall from henceforth by us be free ecclesiastics, multiplying presumpand of free condition.” Barrington tions and rules of evidence consonant on Statutes (3d ed.), 275. See Mack- to the equal and humane spirit which intosh, History of England, c. 4. breathes throughout the morality of Compare this with a deed of manu the Gospel. Hume (History of Engmission in Massachusetts, to be found land, c. 23) seems to think emancipain Sumner's Speeches, II. 289; Me- tion was brought about by selfish conmoir of Chief Justice Parsons, by his siderations on the part of the barons, son, 176, note.
and from a conviction that the re1 Wright, Domestic Manners and turns from their lands would be inSentiments, p. 112.
creased by changing villeinage into ? Macaulay (History of England, socage tenures. c. 1) says the chief instrument of 8 Robertson, America, Book 9; emancipation was the Christian relig- Bancroft, United States, Vol. I. c. 5. ion. Mackintosh (History of England, 4 Lofft, 18; 20 Hlowell State Trials, c. 4) also attributes to the priesthood 1; Life of Granville Sharp, by Hoare, great influence in this reform, not only c. 4; Hurd, Law of Freedoin and by their direct appeals to the con- Bondage, Vol. 1. p. 189. The judgscience, but by the judges, who were ment of Lord Mansfield is said to
The same opinion had been previously expressed by Lord Holt, but without authoritative decision. In Scotland a condition of servitude continued to a later
period. The holding of negroes in slavery was indeed [* 299] held to be illegal * soon after the Sommersett Case; but
the salters and colliers did not acquire their freedom until 1799, nor without an act of Parliament. A previous statute for their enfranchisement through judicial proceedings had proved ineffectual.3
The history of slavery in this country pertains rather to general history than to a work upon State constitutional law. Throughout the land involuntary servitude is abolished by constitutional amendment, except as it may be imposed in the punishment of crime. Nor do we suppose the exception will permit the convict to be subjected to other servitude than such as is under the control and direction of the public authorities, in the
have been delivered with evident re 1 " As soon as a slave comes into luctance. 20 State Trials, 79; per England, he becomes free; one may Lord Stowell, 2 Hagg. Adm. 105, 110; be a villein in England, but not a Broom, Const. Law, 105. Of the slave.” Holt, Ch. J., in Smith v. practice prior to the decision Lord Brown, 2 Salk. 666. See also Smith Stowell said: “ The personal traffic in v. Gould, Ld. Raym. 1274; 8. c. Salk. slaves resident in England had been 666. There is a learned note in as public and as authorized in London Quincy's Rep. p. 94, collecting the as in any of our West India Islands. English authorities on the subject of They were sold on the Exchange, and slavery. other places of public resort, by par
2 39 Geo. III. c. 56. ties themselves res nt in London, May's Const. Hist. c. 11. and with as little reserve as they 4 Amendments to Const. of U. S. would have been in any of our West art. 13. See Story on the ConstituIndia possessions. Such a state of tion (4th ed.), c. 46, for the history of things continued without impeach- this article, and the decisions bearing ment from a very early period up to upon it. The Maryland act for the nearly the end of the last century." apprenticing of colored children, which The Slave Grace, 2 Hayg. Adm. 105. made important and invidious disIn this case it was decided that if a tinctions between them and white slave, carried by his master into a children, and gave the master propfree country, voluntarily returned with erty rights in their services not given him to a country where slavery was in other cases, was held void under allowed by the local law, the status of this article. Matter of Turner, 1 Abb. slave would still attach to him, and U. S. 84. This thirteenth amendthe master's right to his service be ment conferred no political rights, resumed. Mr. Broom collects the au and left the negro under all his politthorities on this subject in general, in ical disabilities. Marshall v. Donovon, the notes to Sommersett's Case, Const. 10 Bush, 681. See also United States Law, 105.
v. Cruikshanks, 94 U.S. Rep. 542.
manner heretofore customary. The laws of the several States allow the letting of the services of the convicts, either singly or in numbers, to contractors who are to employ them in mechanical trades in or near the prison, and under the surveillance of its officers; but it might well be doubted if a regulation which should suffer the convict to be placed upon the auction block and sold to the highest bidder, either for life or for a term of years, would be in harmony with 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.1
The common law of England permits the impressment of seafaring men to man the royal navy ;? but this species of servitude was never recognized in the law of America.3 The citizen may doubtless be compelled to serve his country in her wars; but the common law as adopted by us has never allowed arbitrary discriminations for this purpose between persons of different avocations.
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, against even the process of the law, except in a few specified cases. The maxim that “every man's house is his castle,”' is made
1 The State has no power to im- 5 State Trials, 276; 1 Bl. Com. 419; prison a child in a house of correction Broom, Const. Law, 116. who has committed no crime, on a 8 There were cases of impressment mere allegation that he is “ destitute in America before the Revolution, of proper parental care, and is grow- but they were never peaceably acquiing up in mendicancy, ignorance, esced in by the people. See Life and idleness, and vice.” People v. Tur- Times of Warren, 55. ner, 55 Ili 280; s. c. 8 Am. Rep.
4 Broom's Maxims, 321. The 645. Compare Prescott v. State, 19 eloquent passage in Chatham's speech Ohio, n. s. 181; s. c. 2 Am. Rep. on General Warrants is familiar: 388.
" The poorest man may, in his cot2 Broadfoot's Case, 18 State Tri- tage, bid defiance to all the forces of als, 1323; Fost. Cr. Law, 178; Rex the Crown. It may be frail; its roof v. Tubbs, Cowp. 512; Ex parte Fox, may shake; the wind may blow
[* 300) a * part of our constitutional law in the clauses prohibit
ing unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.
If in English history we inquire into the original occasion for these constitutional provisions, we shall probably find it 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 offences either committed or desigued. 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 the account in the note below.
through it; the storm may enter; having been charged or even susthe rain may enter; but the king of pected, no evidence of crime having England may not enter; all his force been offered, — no one was named in dares not cross the threshold of the this dread instrument. The offence ruined tenement." And see Lieber only was pointed at, not the offender. on Civil Liberty and Self-Govern- The magistrate who should have ment, c. 6.
sought proofs of crime deputed this Among the remnants of a office to his messengers. Armed with jurisprudence which had favored pre- their roving commission, they set rogative at the expense of liberty was forth in quest of unknown offenders ; that of the arrest of persons under and, unable to take evidence, listened general warrants, without previous to rumors, idle tales, and curious evidence of their guilt or identifica- guesses. They held in their hands tion of their persons. This practice the liberty of every man whom they survived the Revolution, and was were pleased to suspect. Nor were continued without question, on the they triflers in their work. In three ground of usage, until the reign of days they arrested no less than fortyGeorge III., when it received its nine persons on suspicion, many as death-blow from the boldness of innocent as Lord Halifax himself. Wilkes and the wisdom of Lord Among the number was Dryden Camden. This question was brought Leach, a printer, whom they took to an issue by No. 45 of the • North from his bed at night. They seized Briton,' already so often mentioned. his papers, and even apprehended his There was a libel, but who was the journeymen and servants. He had libeller? Ministers knew not, nor printed one number of the · North waited to inquire, after the accus Briton,' and was then reprinting some tomed forms of law; but forth with other numbers; but as he happened Lord Halifax, one of the secretaries not to have printed No. 45, he was of state, issued a warrant, directing released without being brought before four messengers, taking with them a Lord Halifax. They succeeded, how. constable, to search for the authors, ever, in arresting Kearsley the pubprinters, and publishers; and to ap- lisher, and Balfe the printer, of the prehend and seize them, together obnoxious number, with all their with their papers, and bring them in workmen. From them it was dissafe custody before him.
covered that Wilkes was the culprit
* The history of this controversy should be read in [* 301) connection with that in America immediately previous to
of whom they were in search ; but however, bills of exceptions were the evidence was not on oath; and tendered and allowed. Mr. Wilkes the messengers received verbal direc- himself brought an action against tions to apprehend Wilkes under the Mr. Wood, under-secretary of state, general warrant. Wilkes, far keener who had personally superintended the than the crown lawyers, not seeing execution of the warrant. At this his own name there, declared it •a trial it was proved that Mr. Wood ridiculous warrant against the whole and the messengers, after Wilkes's English nation,' and refused to obey removal in custody, had taken entire it. But after being in custody of the possession of his house, refusing admessengers for some hours, in his own mission to his friends; had sent for a house, he was taken away in a chair, blacksmith, who opened the drawers to appear before the secretaries of of his bureau; and having taken out state. No sooner had he been re the papers, had carried them away in moved than the messengers, returning a sack, without taking any list or into his house, proceeded to ransack his ventory. All his private manuscripts drawers; and carried off all his pri- were seized, and his pocket-book filled vate papers, including even his will up the mouth of the sack. Lord and his pocket-book. When brought Halifax was examined, and admitted into the presence of Lord Halifax and that the warrant had been made out Lord Egremont, questions were put three days before he had received to Wilkes which he refused to answer; evidence that Wilkes was the author whereupon he was committed close of the • North Briton.' Lord Chief prisoner to the Tower, denied the use Justice Prall thus spoke of the warof pen and paper, and interdicted rant: • The defendant claimed a right, from receiving the visits of his friends under precedents, to force persons' or even of his professional advisers. houses, break open escritoires, and From this imprisonment, however, seize their papers upon a general he was shortly released on a writ of warrant, where no inventory is made habeas corpus, by reason of his privi- of the things thus taken away, and lege as a member of the House of where no offenders' names are speciCommons.
fied in the warrant, and therefore a ** Wilkes and the printers, sup discretionary power given to messenported by Lord Temple’s liberality, gers to search wherever their suspisoon questioned the legality of the cions may chance to fall. If such a general warrant. First, several jour power is truly invested in a secretary neymen printers brought action of state, and he can delegate this against the messengers. On the first power, it certainly may affect the trial, Lord Chief Justice Pratt -- not person and property of every man in allowing bad precedents to set aside this kingdom, and is totally subversive the sound principles of English law - of the liberty of the subject.” The held that the general warrant was jury found a verdict for the plaintiff illegal; that it was illegally executed; with one thousand pounds damages. and that the messengers were not in Four days after Wilkes had obdemnified by statute. The journey- tained his verdict against Mr. Wood, men recovered three hundred pounds Dryden Leach, the printer, gained damages; and the other plaintiffs also another verdict, with four hundred obtained verdicts. In all these cases, pounds damages, against the messen