THE AMERICAN STRUGGLE FOR THE INTERPRETATION OF THE FOURTH
AND FOURTEENTH AMENDMENTS

By
Timothy A. Edwards, B.A.
East Stroudsburg University of Pennsylvania

A Thesis Submitted in Partial Fulfillment of
The Requirements for the Degree of
Master of Arts in History
to the Office of Graduate and Extended Studies
of East Stroudsburg University of Pennsylvania

August 7, 2020

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ABSTRACT
A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of
Master of Arts in History to the Office of Graduate and Extended
Studies of East Stroudsburg University of Pennsylvania
Student’s Name: Timothy A. Edwards
Title: The American Struggle for the Interpretation of the Fourth and Fourteenth
Amendment
Date of Graduation: August 7, 2020
Thesis Chair: Christopher Brooks, Dr. Phil.
Thesis Member: Michael Gray, PhD.
Abstract
Lawmakers interpreted the Fourth and Fourteenth Amendments to the United States
Constitution in a way that denied citizens their individual privileges and protections
against unreasonable searches and seizures. To demonstrate this, primary and secondary
sources were used including court cases, acts, laws, books, journals, periodicals, personal
papers, correspondences, and government records. These sources have revealed that the
historical ramifications of search and seizure laws and individual rights were intended to
be interpreted based on the viewer’s surrounding culture. The larger implications of this
researcher’s findings are that the Bill of Rights must be construed as a set of rules that
can be interpreted in any era for the sake of all citizens to have equal access to life,
liberty, and property.

TABLE OF CONTENTS
INTRODUCTION………………………………………………………………………...v
Chapter
I.

SEVENTEENTH AND EIGHTEENTH-CENTURY ENGLISH LAW AND THE
PRINCIPLE ORIGINS OF THE FOURTH AND FOURTEENTH
AMENDMENTS………………………………………………………………….1

II.

1761-1768: ORIGINS OF SEARCH AND SEIZURE AND INDIVIDUAL
LIBERTY IN THE AMERICAN COLONIES………………………………….32

III.

1770-1791: HOW THE FOURTH AMENDMENT WAS ADOPTED…………50

IV.

1822-1868: PROTECTIONS AND GAURANTEES OF EQUAL INDIVIDUAL
LIBERTIES AND PRIVACY…………………………………………………...63

V.

THE FOURTH AMENDMENT REVISITED IN THE US SUPREME COURT:
BOYD AND TWENTIETH-CENTURY CIVIL RIGHTS……………………...82

CONCLUSION………………………………………………………………………….97
BIBLIOGRAPHY……………………………………………………………………...102

iv

INTRODUCTION
Introduction to Fourth and Fourteenth Amendment
In a speech at Georgetown University in 1985 Supreme Court Justice William J.
Brennan Jr. said this about interpreting the United States Constitution:
We look to the history of the time of framing and to the intervening history of interpretation. But
the ultimate question must be, what do the words of the text mean in our time? For the genius of
the Constitution rests not in any static meaning it might have had in a world dead and gone, but in
the adaptability of its great principles to cope with current problems.1

An example of Mr. Brennan’s reference to a changing set of rules can be found in two
fundamental amendments to the U.S. Constitution, the Fourth and Fourteenth.
This work will show that discrimination and greed led lawmakers to unjustly
ignore the protections that the Fourth and Fourteenth Amendment guaranteed. By
ignoring constitutional provisions in cases involving illegal intrusions of private property,
black citizens suffered under Black Codes and Jim Crow until the 1960s. Legal
precedent, such as the Slaughterhouse Case of 1873, and civil liberties, such as the Civil
Rights Act of 1866, were struck down in favor of long held traditions, racial divide, and
political favoritism.

From Reconstruction to the Civil Rights movement, parts of the American
government actively worked to prohibit new government agencies, laws, and court cases
that safeguarded individual rights. The Freedman’s Bureau and Civil Rights Act of 1866

1
Editorial, “Justice, Brennan Style,” Los Angeles Times, October 16, 1985, accessed October 13,
2015, http://articles.latimes.com/1985-10-16/local/me-15116_1_constitution.

v

attempted to curtail Black Codes in the American South which “limited the rights of
former slaves to move freely, to be gainfully employed, and to acquire property.” 1
Although not initially successful in furthering equal protections and securing property for
blacks, the Freedmen Bureau’s Act and Civil Rights Act became vital precursors to
Fourteenth Amendment legislation. After the Ratification of the Fourteenth Amendment
defined citizenship, cases such as the Ku Klux Klan Trials (1871-1872) and
Slaughterhouse Cases (1873) essentially erased the gains the Fourteenth Amendment
provided for blacks. By ignoring the Constitution and setting detrimental precedent,
Black Codes in the American South prohibited the Fourteenth Amendment from being
considered in trials that had a chance to make the Fourth Amendment stronger.2
The landmark decision of Boyd v US (1886) trailblazed a new interpretation of the
Fourth Amendment, challenging that an invasion of property and security equaled an
invasion of liberty. In the early twentieth-century, decisions to prohibit evidence that
were obtained illegally under the Fourth Amendment, and an inclusion that required
states to abide by federal Fourth Amendment laws, furthered protections from
unreasonable searches and seizures. By the Civil Rights Era, Supreme Court Justice
William J. Brennan led the charge in interpreting the Fourth Amendment in a new image.

1

Richard Fleischman, Thams Tyson, and David Oldroyd, “The U.S. Freedmen’s Bureau In PostCivil War Reconstruction,” The Accounting Historian’s Journal 41, no. 2 (December 2014): 82, accessed
on September 1, 2019, http://www.jstor.org/stable/43487011.
2

Lou Faulkner Williams, The Great South Carolina Ku Klux Klan Trials 1871-1872 (Athens, GA:
University of Georgia Press, 1996), 66-73; Michael A. Ross, “Justice Miller’s Reconstruction: The
Slaughter-House Cases, Health Codes, and Civil Rights in New Orleans, 1861-1873,” The Journal of
Southern History 64, no. 4 (Nov. 1998): 651-652, accessed on January 27, 2019,
https://www.jstor.org/stable/2587513.

vi

His narrative challenged how variables like technology, police forces, and due process
could or could not be used in cases that accessed personal privacy to make an arrest. 3
Fourth Amendment Historiography
The Fourth Amendment has been written about by numerous scholars. Some of
them study the era in which the amendment was founded and discern what words like
“probable,” “cause,” and “unreasonable” meant to the Founding Fathers.4 Other scholars
study the growth of the Fourth Amendment. They analyze the Fourth Amendment and
use court cases and laws as variables to show how search and seizure law has changed
throughout American history.5 Words like “probable,” “cause,” and “unreasonable” are
arbitrary to different people. Scholars have outlined the causes and purposes of the Fourth
Amendment by splitting the two clauses of the amendment in half. Two scholars, both
writers of the 1970s, based their arguments on what they thought the purpose for the split
of the first, the unreasonable seizure, and the second, the general search warrant clauses
were. Jacob Ladynski contended that the first clause emphasizes the second. This
provides that the warrant clause was an already defined “right to freedom from arbitrary

3

Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Michigan Law Review, 98,
(1998): 727-728, http://dx.doi.org/10.2139/ssrn.220868; Weeks v United States 232 US 383 (1914);
Lawrence Lessig, "Translating Federalism: United States v Lopez." The Supreme Court Review 1995
(1995): 132-134, accessed on September 8, 2019, http://www.jstor.org/stable/3109612; Louis, Henkin,
""Selective Incorporation" in the Fourteenth Amendment," The Yale Law Journal 73, no. 1 (1963): 74-76,
accessed on September 8, 2019, doi:10.2307/794594.
4

William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 (New
York, NY: Oxford University Press, 2009).
5
Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search & Seizure, 17891868 (New York, NY: New York University Press, 2006).

vii

governmental invasion of privacy and did not seek to create or confer such a right.” He
concluded that “the second clause, in turn, defines and interprets the first.”6
Another contributor to arguing that the primary focus of the Amendment was the
general warrant clause comes from Telford Taylor. Taylor’s contention is different from
Ladynski’s in that Taylor does not consider the unreasonable seizure clause as anything
more than “to cover shortcomings in warrants… or other unforeseeable contingencies.”
Taylor’s main argument is that the colonists had little concern with unreasonable seizures
and primarily worried about the threat of general warrants.7
These scholars had valid contentions in their own right. But if the contention here
is to argue that Fourth Amendment law has an inherent connection with the protections of
the Fourteenth Amendment, then there is a different way to analyze the purposes for the
founding of the Fourth Amendment. In a more recent study Thomas K. Clancy points out
that:
There is a broader recognition that the amendment was designed by the framers to protect
individuals from unreasonable governmental intrusion. Such a view maintains that the framers
intended not only to prohibit the specific evils of which they were aware but also, based on the
general terms they used, to give the Constitution enduring value beyond their own lifetimes.8

Using this hypothesis, there must be evidence that both clauses of the Fourth Amendment
were written for the purpose of individuals having guaranteed protections in a nation that
would evolve. Specifically, the meaning of the Fourth Amendment should have changed,

6

Jacob W. Ladynski, Search and Seizure and the Supreme Court: A Study in Constitutional
Interpretation (Baltimore, MD: The Johns Hopkins Press, 1966), 43.
7

Telford Taylor, Two Studies in Constitutional Interpretation: Search, Seizure, and Surveillance
and Fair Trial and Free Press (Columbus, OH: University of Ohio State Press, 1969), 43.
8
Thomas K. Clancy, “The Framer’s Intent: John Adams, His Era, and the Fourth Amendment,”
Indiana Law Journal 86, no. 3 (Summer 2011): 988, accessed February 1, 2017,
http://ilj.law.indiana.edu/articles/86/86_3_Clancy.pdf.

viii

without altering the words, depending on the strength of new laws such as those in the
Fourteenth Amendment.
Fourteenth Amendment Historiography
If Fourth Amendment historiography is complex, then the Fourteenth Amendment
is Pandora’s Box. Enacted to give slaves access to the same rights all free men had, the
Amendment’s impact is still viewed as more controversial than any other. The Fourteenth
Amendment’s most important first clause does four things. First, it grants US citizenship
to anyone born or naturalized in the US. Second, it prohibits states from enacting laws
that curtail the “privileges or immunities” of citizens of the United States. Next, it
prohibits states from stripping “any person of life, liberty, or property, without due
process of law.” Finally, it prohibits states from denying any person in their state “equal
protections of the laws.”9
As legal scholar Earl M. Maltz puts in his work encompassing the Fourteenth
Amendment, the force behind the Fourteenth Amendment was meant to be radical.
However, pre-Civil War legal precedent and states’ rights southern Democrats control of
Congress by 1874 severely curtailed Fourteenth Amendment opportunities. Thus, Maltz
states that scholarly work on the Fourteenth Amendment reviews “the Republican
ideology of the early Reconstruction era as the benchmark against which the Court
should be measured.”10

9

U.S. Constitution, Amendment XIV.

10
Earl M. Maltz, The Fourteenth Amendment and the Law of the Constitution (Durham, NC: The
University of North Carolina Press, 2003): vii-viii.

ix

Historian Eric Foner dives into deeper detail on the Reconstruction Era and the
Fourteenth Amendment by painting an ideological picture of the minds of Republicans
leading up the drafting of the Amendment. Foner picks out three stances for which
Republicans supported the Amendment:
The break with the President, the need to find a measure upon which all Republicans could unite,
and the growing consensus within the party around the need for strong federal action to protect the
freedmen’s rights, short of the suffrage.11

Foner outlines this stance with the idea that the broadness of the Amendment was meant
to help its beneficiaries and reject its opponents. Foner states that Republicans refused to
answer Democrats’ claim that the Amendment was not specific enough. Instead their
response was to a national crisis, and the Fourteenth Amendment was ratified to help heal
the whole nation.
The works of Maltz and Foner are ideological thoughts of what the Fourteenth
Amendment was meant to protect and guarantee. Ronald M. Labbe and Jonathan Lurie’s
book about The Slaughterhouse Cases shows how the Fourteenth Amendment was used
in case law. As Labbe and Lurie point out, the Court struggled to agree on how far the
Fourteenth Amendment extended its scope. Labbe and Lurie make the case that Supreme
Court Justice Stephen Miller, who ruled 5-4 in favor of the state of Louisiana to regulate
slaughterhouses, did not rule based on the Reconstruction Republican ideology of
uplifting disenfranchised blacks. They explain that most contemporary Fourteenth
Amendment scholars blame Justice Stephen’s ruling in Slaughterhouse for setting
precedent for Plessy v Ferguson thus driving the nation into a deeper divide socially and
politically. Rather, Labbe and Lurie’s thesis is a familiar rejection of Slaughterhouse with

11

Eric Foner, Reconstruction: America’s Unfinished Revolution 1863-1877 (New York, NY:
Harper & Row, 1988), 257.

x

the caveat that it was not “scandalously wrong” based on the broadness of the Fourteenth
Amendment, the facts of sanitation reform in the case, and the political climate of
Reconstruction.12

12

Ronald M. Labbe and Jonathan Lurie, Regulation, Reconstruction, and the Fourteenth
Amendment: The Slaughterhouse Cases (Lawrence, KS: University of Kansas Press, 2003): 1-4.

xi

CHAPTER 1
SEVENTEENTH AND EIGHTEENTH-CENTURY ENGLISH LAW AND THE
PRINCIPLE ORIGINS OF THE FOURTH AND FOURTEENTH AMENDMENTS

American Constitutional Historiography
American constitutional history is a complex subject founded upon tumultuous
times. Several historians and legal scholars have commented on the subject. In the
nineteenth-century, Alexis de Tocqueville published his work on American democracy
after his travels in the United States and is widely considered the first political science
work on American politics. Tocqueville was astonished, if not concerned, about “how
much knowledge and discernment it [the Constitution] assumes on the part of the
governed.” 1 Tocqueville insisted that even if “the general theory is understood, there
remain difficulties of application” including the power balance between the sovereignty
of federal and state governments. In addition to the complexity of American
constitutionalism, its ideologies were largely based off the government it was formed to
be protected against.2

1
Alexis de Tocqueville, Democracy in America, ed. Harvey C. Mansfield and Delba Winthrop
(Chicago: University of Chicago Press, 2000), 155-156.
2

Tocqueville, Democracy in America, 155-156

1

Historian Mirjan R. Damska provides a vital comparison between English and
American constitutionalism. In both aspects, constitutionalism has an overarching
authority upon which its laws are based upon. For the English it was God. Every aspect
of government applied to the law was divine. American constitutionalism also was
founded upon strong authority. This authority was essentially “the People and their
Charter.” The Framers set up the Constitution to be the axel “the People” could wield
their power from, with assistance from the central government. 1 Another historian that
studies the theory of American constitutionalism states that British constitutionalism was
founded to “be a set of documents that relate to the system of government of a given
community.” Since American constitutionalism was founded during the Revolutionary
Era without a developed community, it was based off “a single law that had a special
status as a paramount or fundamental law.” This argument sets the stage for a story in
which the American Constitution was construed for a new particular reason, rather than
for an existing community. The American concept was that gathering representatives,
debating ideologies, and ratifying laws for the particular reason to guarantee rights and
protections meant that “people were the sole sovereign in the American government.”2
Much like the framers of the American Constitution, the committees that formed
and ratified the Fourteenth Amendment from 1866 to 1868 did not arbitrarily find
reasoning for new analyses based on a passive resolution or orderly events. Before the
ratification of the Fourteenth Amendment, the theory of constitutionalism for “the

1
Mirjan R. Damaska, “Reflections on American Constitutionalism,” The American Journal of
Comparative Law 38 (1990): 422, accessed on September 11, 2019, doi:10.2307/840551.
2

Stephen M. Griffin, American Constitutionalism: From Theory to Politics (Princeton: Princeton
University Press, 1996), 11-12.

2

people” resonated in the Antebellum debates over individual rights and slavery. In
Antebellum America when “privileges and immunities” were paired together it was often
for “special,” “peculiar,” “exclusive,” and “particular” reasons. Privileges and immunities
did not resemble what they would in the Fourteenth Amendment, but rather referred to
specific rights for certain instances. Antebellum debate about individual rights revolved
around Article IV of the Constitution, often referred to as the Comity Clause, which
states that “the Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.” Antebellum Courts interpreted Article IV as requiring
states to acknowledge some of the same privileges and immunities it recognizes for its
own citizens, for citizens visiting their state. Privileges and Immunities that were not
required to be granted included “political rights such as suffrage, and they excluded any
liberty granted by the state to its own citizens.”3
When Congressman John Bingham of Ohio presented his first draft of the
Fourteenth Amendment to Congress in the winter of 1865, he based it on the muddled
Comity Clause in Article IV of the Constitution. Bingham believed the Comity Clause
forced states to impose the Bill of Rights. Bingham’s Republican colleagues met him
with vehement opposition and their points of debate are important to note. Republicans
believed that Bingham’s proposed amendment did not change the scope of the Comity
Clause more than it was conventionally implied. Antebellum cases like Dred Scott made
it clear that states were forced to regulate only some of their privileges and immunities
for sojourning citizens. Another rejection came from Republican Congressman Robert

3
Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American
Citizenship (New York, NY: Cambridge University Press, 2014): 16-25.

3

Hale who said that the proposed amendment “utterly obliterates State rights and State
authority over their own internal affairs.” Hale, and the rest of the majority of the
Republican party believed the power of dual federalism was vital to enhancing individual
rights. Finally, New York Republican Congressman Giles Hotchkiss insisted that
Bingham’s draft
proposes to leave it up to Congress; and your legislation upon the subject would depend upon the
political majority of Congress, and not upon the two thirds of Congress and three fourths of the
States… why not provide an amendment to the Constitution that no State shall discriminate
against any class of citizens; and let that amendment stand as part of the organic law of the land.

Realizing that his efforts had been squashed, Bingham abandoned his first draft.4
Two weeks after his initial draft was rejected, Bingham came back with a
second draft which was considerably more accepted amongst his colleagues. The new
draft protected “the privileges or immunities rights of citizens of the United States”
rather than “the several states.” Bingham exclaimed that his new proposal had the
power to “protect by national law the privileges and immunities of all the citizens of
the republic and inborn rights of every person within its jurisdiction whenever the
same shall be abridged or denied by the unconstitutional acts of any State.” After his
colleagues in the House were satisfied, Senator Jacob Howard introduced the
proposed amendment to the Senate. In Howard’s speech he asserted that the passing
of the new amendment incorporated the Bill of Rights. He combined Bingham’s
“privileges and immunities of the citizens of the United States” with an inclusion of

4
Lash, Privileges and Immunities, 72, 98-99, 109-112; “The Constitutional Amendment.” The
New York Times, March 1, 1866.

4

enumerated rights of the Constitution, incorporating the all-important Article IV and
the first eight amendments.5
Amongst these debates and the passing of the Fourteenth Amendment, Southern
state legislatures still provided that their sovereignty outweighed government sanctioned
processes like due process, equal protection, and privileges and immunities. The tensions
between federal and state governments not only boiled over into the deadly Civil War but
forced the Thirty-Ninth Congress to pave a new path of American constitutionalism. The
new path only widened Southern white distrust of the federal government, who were now
ordered by the Constitution to treat their ex-slaves as equal citizens.6
In turn, the interpretation of controversial laws born out of the Fourteenth
Amendment shaped the nation based on polarizing opinions. In regards to The
Slaughterhouse Cases, which essentially erased the Privileges or Immunities Clause
check on state laws, Ronald M. Labbe quotes Supreme Court Justice Felix Frankfurter
saying Supreme Court cases are “windows on the world.”7 In addition to the detrimental
ruling in Slaughterhouse, the Supreme Court rejected the power Congress had under the
Civil Rights Act of 1875 to force owners of private establishments to allow all races to
use their facilities. The court argued:
Civil Rights, such as are guaranteed by the constitution against state aggression, cannot be
impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws,

5

Congressional Globe, 39th Congress, 1st Session, 2542 (1866); Lash, Privileges and Immunities,
150-151, 157-158.
6

Garrett Epps, "The Antebellum Political Background of the Fourteenth Amendment." Law and
Contemporary Problems 67, no. 3 (2004): 180. http://www.jstor.org/stable/27592056.
7
Tony A. Freyer, review of The Slaughterhouse Cases: Regulation, Reconstruction, and the
Fourteenth Amendment, by Ronald M. Labbé and Jonathan Lurie, The American Historical Review 110, no.
3 (2005): 803-04. doi:10.1086/ahr.110.3.803.

5

customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by
any such authority, is simply a private wrong.8

Long before the framers of the Fourth and Fourteenth Amendments debated their
ideologies, British lawyers and policy makers contested the scope of privacy rights and
individual liberty. Considering the ebbs and flows of American constitutionalism from
the Founding Era to Reconstruction, it is important to recognize the English influences on
American lawmakers in developing American constitutionalism.
English Common Law Origins
Just as the Fourth and Fourteenth Amendments were formed out of controversy,
they were also tied to other laws of the past. The words that form many of the
amendments to the Constitution were formed out of English common law. From Magna
Carta setting the standard for modern legal precedent, to William Blackstone recording
the Commentaries on the Laws of England introducing Parliamentary sovereignty,
English liberties transformed to validate persons and their property as a constitutional
guarantee.9 The framers of the Fourth Amendment and the committees that formed the
Fourteenth Amendment looked to seventeenth and eighteenth-century English liberties
for influence.10 To understand the origins of American liberties, it is vital to introduce
English law as one of the U.S. Constitution’s most important references.

8

Maltz, The Fourteenth Amendment, 159.

9
Alexander Lock, "Reform, Radicalism and Revolution: Magna Carta in Eighteenth- and
Nineteenth-century Britain." In Magna Carta: History, Context and Influence, edited by Goldman
Lawrence, 101-16, London: School of Advanced Study, University of London, 2018.
http://www.jstor.org/stable/j.ctv5136sc.14; Howard L. Lubert, "Sovereignty and Liberty in William
Blackstone's "Commentaries on the Laws of England".", The Review of Politics 72, no. 2 (2010): 271-97.
http://www.jstor.org/stable/20780306.
10
David A Sklansky, "The Fourth Amendment and Common Law," Columbia Law Review 100,
no. 7 (2000): 1777-1778, doi:10.2307/1123590; Akhil Reed Amar, "The Bill of Rights and the Fourteenth
Amendmen,." The Yale Law Journal 101, no. 6 (1992): 1268, doi:10.2307/796923.

6

Magna Carta
Popular historiography is right to treat common law as the most celebrated
champion of legal justice, yet it seems impossible to overrate its importance. Common
law’s first step in international fame was the charter of Magna Carta. Almost onehundred-fifty years after the Norman Conquest was completed, King John agreed to sign
the Magna Carta in 1215. The reasoning for the charter came from John’s barons, who
were unhappy with the king’s rule.11 The charter consists of several chapters, but Chapter
Thirty-Nine stands out as the most constitutionally significant section. “No free man is to
be arrested, or imprisoned, or disseised [sic], or outlawed, or exiled, or in any other way
ruined, nor will we go against him or send against him, except by the lawful judgement of
his peers or by the law of the land.”12 The latter clause of this chapter is most important,
declaring that “peers” and “the law of the land” are to judge civil matters. Although this
in essence is an early declaration of common law, Magna Carta was not used to make law
until many years later. From 1215 to 1300, Magna Carta was reissued six times, but not
used to make any official law. In the later parts of the Middle Ages the enemies of
English monarchy certainly did not reference Magna Carta, killing five kings from 1327
to 1485. Even during this time, Magna Carta was continuously reissued. However, there
is no evidence that points to its text being a sound of reason in English politics.13

11

Sidney Painter, “Magna Carta,” The American Historical Review 53 (1947): 42-43, accessed on
September 26, 2016, http://www.jstor.org/stable/pdf/1843678.pdf.
12

39. Magna Carta, 1297, Statutes of the Realm, 25 Edw. 1.

13
Nicholas Vincent, "Magna Carta: From King John to Western Liberty," In Magna Carta:
History, Context and Influence, ed. Goldman Lawrence (London: School of Advanced Study, University of
London, 2018), 35-36, http://www.jstor.org/stable/j.ctv5136sc.9.

7

Magna Carta was not the only treatise of the middle ages that would influence
common law and individual rights. Henry Bracton published On the Laws and Customs
of England in 1235, putting him on the top of the list as an early jurist to tackle common
law. Bracton’s purpose was to describe what the state of law was in England at the time.
The introduction of Bracton’s work asks questions of what different types of law there
are. In a section called “What justice is,” Bracton explains that law and custom, “give just
judgement between man and man”, and that, “justice is the constant and unfailing will to
give each his right.”14 Bracton wrote his treatise in a time in which England was just
barley beginning to recognize the responsibility for representation. By the mid-thirteenthcentury the first Parliament was established and circuit courts were spread throughout the
country. Along with these types of political and legal movements, Bracton’s treatise
provides a reference for how a judicial system could work in a primarily rural country.15
Property Common Law Origins
It was not until the seventeenth-century that common law started to become an
established rule of law. In the English Stuart era, common law began to be defined
simply as the practice of civil cases decided by judges. Civil cases during that time
frequently involved rights of property. Disputes over property mostly arose amongst
multiple individuals who claimed some type of ownership to the same land. 16 The term

14
Henry of Bratton, On the Laws and Customs of England, c. 1220, vol. 2, 22-23, Bracton Online,
The Ames Foundation Digital Collection of Legal History, Harvard Law School, accessed on September
26, 2016, http://bracton.law.harvard.edu/Unframed/English/v2/23.htm.
15

Fred H. Blume, “Bracton and His Time,” Wyoming Law Journal 2, no. 2 (January 2018), 44-46,
accessed on September 24, 2019,
https://pdfs.semanticscholar.org/daff/3749af8415bcfb0eda91282ce259214879ab.pdf.
16
Barbara Shapiro, “Law Reform in Seventeenth Century England,” The American Journal of
Legal History 19, no. 4 (Oct., 1975): 280, 282, accessed on January 11, 2017,
http://www.jstor.org/stable/pdf/845054.pdf.

8

“property” had just begun to take form in the legal community in the second half of the
seventeenth-century. At this time “property” was considered to be, “things moveable.”
Thus, in civil cases, to further discern how certain property was defined, sub-definitions
were required.17 Arguments about property also addressed two fundamental inquires of
individual rights. First, one’s right to property was largely seen as guaranteed by natural
law. Secondly, one’s right to property also addressed guarantees upheld by common law.
In the seventeenth-century three lawyers wrote considerable treatises that
strengthened common law, and in turn served as inspirations to American search and
seizure law and individual rights. Specifically, the writings of Edward Coke, Matthew
Hale, and William Hawkins gave American colonists an example as to why an illegal
search or seizure of individual property violated their rights. Further, the fundamental law
of individual liberty that the treaties observed was viewed by the framers of the
Fourteenth Amendment as privileges and immunities that were incorporated in the Bill of
Rights.
Sir Edward Coke’s Institutes
Edward Coke’s estimation of laws and judgement of cases were unmatched in the
seventeenth-century. This is backed by his four-volume work of The Institutes of the
Laws of England and thirteen volumes of The Reports of Sir Edward Coke. Within these
texts, it is Coke’s influence on the future framework of the Fourth and Fourteenth
amendments that deserves attention. Many parallels to American legal procedures
considering these Amendments can be found in Coke. Historians perceive Coke as the

17
G. E. Aylmer, “The Meaning and Definition of "Property" in Seventeenth-Century England,”
Past & Present, no. 86 (Feb., 1980): 90, accessed on February 13, 2017,
https://www.jstor.org/stable/pdf/650740.pdf.

9

bridge between Magna Carta and the Fourth Amendment because he was the first to
reject general search warrants, especially in cases in which the federal government
breached the privacy of one’s home.18 Coke’s foundation for this violation was based on
article thirty-nine of Magna Carta. The connection between Coke’s denial of general
warrants is not just about the words in the text or the cases argued. It is about the larger
context of common law procedures being independent from legislative and executive
influence. The English monarch felt so threatened by the influence of Coke’s common
law practices that after Coke’s death, Charles I directed to have Coke’s house pillaged
and confiscate any papers that were “seditious … dangerous [and] disadvantageous to His
Magesty’s service.”19
Coke’s Institutes are a large work of definitions and legal procedures. Coke’s
third volume outlines common law’s protection against “Pleas of the Crown.” There,
Coke explains in a subchapter titled, “Seizure of Goods before conviction,” that, “the
goods of any delinquent20 cannot be taken and seized to the king’s use before the same be
forfeited.”21 Coke’s main purpose here, and in the rest of the third volume, is to keep
18

Laura K. Donohue, “The Original Fourth Amendment,” The University of Chicago Law Review
83, no. 3 (2016): 1207-1208, Accessed January 12, 2020. www.jstor.org/stable/43913852; Leonard W.
Levy, "Origins of the Fourth Amendment," Political Science Quarterly 114, no. 1 (1999): 80, Accessed
January 12, 2020. doi:10.2307/2657992; Thomas Y. Davies, "Recovering the Original Fourth
Amendment," Michigan Law Review 98, no. 3 (1999): 670-673, Accessed January 12, 2020.
doi:10.2307/1290314.
19

William Cuddihy and Carmon B. Hardy, "A Man's House Was Not His Castle: Origins of the
Fourth Amendment to the United States Constitution," The William and Mary Quarterly 37, no. 3 (1980):
375-377, doi:10.2307/1923809.
20

Coke’s use of the word ‘delinquent’ here is meaning an individual “accused or indicted of any
treason, felony, or other offence before conviction and attainder.” Coke, Third Part Institutes, 229.
21
Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High
Treason; and other Pleas of the crown, and Criminal Cases (London: W. Rawlins, 1680), 228, accessed on
October 11, 2016,
https://ia802706.us.archive.org/2/items/thirdpartofinsti03coke/thirdpartofinsti03coke.pdf.

10

common law completely sovereign from the monarch. Further, his definition of “seizure”
is compelling based on his era. He remarks that there are two types of seizures: “verbal
without taking”, and “actual seizure.” Coke leans on Bracton to define “verbal without
taking” by saying that “before conviction, persons so imprisoned ought not to be
disseised22 of their lands nor despoiled of their goods, but [rather], while they are in
prison, maintained out of them, until they have been delivered by judgment
or convicted.”23
This rudimentary development of protection of private property was followed up
by a description on why it is unlawful to seize property:
The begging of the goods or state of any delinquent accused or indicted of any treason, felony, of
other offence before he be convicted or attainted, is utterly unlawful, because before conviction or
attainder, as hath been said, nothing is forfeited to the king, nor grantable by him. And besides it
either maketh the prosecution against the delinquent more precipitate, violent and undue, than the
quiet and equal proceeding of law and justice would permit, or else by some underhand
composition and agreement stop and hinder the due course of justice for exemplary punishment of
the offender. Lastly, when he delinquent is begged, it discourageth both judge, juror, and witness
to do their duty.24

This stance is monumental because it aligns an individual’s protection against unlawful
seizures with their right to property in court. Coke is claiming that before a suspect is
charged, the king has no authority to their private goods because of the chance that said
goods could damage a jury’s opinion of a case. Coke follows his proclamation of
unlawful seizures with a clause on reasonableness. “One or more justice or justices of
peace cannot make a warrant upon a bare surmise to break any man’s house to search for

22

In seventeenth-century England land was the most valuable entity for a low to middle class
family. If you were “disseised” you were forced to give up your land, normally because of legal
accusations.
23

Bracton Online, Harvard Law School Library, vol. ii, 346, accessed October 11, 2016,
http://bracton.law.harvard.edu/Unframed/English/v2/346.htm.
24

Coke, Third Part Institutes, 229.

11

a felon, or for stolen goods, for they being created by an act of parliament have no such
authority granted unto them by any act of parliament.”25 Seventeenth-century judicial
review makes another appearance here and Coke ties his treatise together with a reference
to the old laws of England. He proclaims that, “for justices of peace to make warrants
upon surmises, breaking houses… is against Magna Carta… and against the English
statute, of 42 E.3.cap”26, which is a reference to a statute titled “Observance of Due
Process of Law” decreed by King Edward III in 1368. The statute says, amongst other
things, “that no man be put to answer without presentment before justices, or matter of
record, or by due process and writ original, according to the old law of the land.”27 Once
again, Coke’s main purpose is to separate the King’s prerogative from the court’s
sovereignty. But, he also grasped due process as legally connected to the legality of
original writs.
Semayne’s Case
In 1604, before his Institutes and Reports were published, Coke put his legal
underpinnings to work. Viewed as a landmark case by modern legal scholars, Semayne’s
Case (1604) established the “knock before entering” and “castle doctrine” precedent that
law enforcement is required to follow.28 In Semayne’s Case, a sheriff of the king was

25

John Mews, W.E. Gordon, and J. Spencer, eds., The Law Journal Reports, For the Year 1897 in
the Queen’s Bench Division of the High Court of Justice, Including the Court for Crown Cases Reserved
(London: 119 Chancery Lane, 1897), 134, accessed on January 17, 2020.
26

Edward Coke, The Fourth Part of the Institutes Of the Laws of England: Concerning the
Jurisdiction of Courts (London: M. Flesher, 1644), 176-177, accessed October 12, 2016,
https://ia601407.us.archive.org/15/items/fourthpartofinst04coke/fourthpartofinst04coke.pdf.
27

Observance of Due Process of Law, 1368, 3 Edw. 42.

28
Jonathan Witmer-Rich, “The Rapid Rise of Delayed Notice Searches, and the Fourth
Amendment ‘Rule Requiring Notice’”, Pepperdine Law Review 41, no. 509 (2013-2014): 574, accessed on
September 28, 2019,
https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1652&context=fac_articles.

12

ordered to enter Richard Gresham’s home, in which he refused entry, to obtain the goods
of the deceased George Beriford who owed money to Peter Semayne. The confrontation
led to Semayne suing Gresham for the debt inside Gresham’s home. Coke In defense of
Gresham, claimed that if “any house is recovered by any real action… the Sheriff may
break the house.”29 Coke’s reference of “real action” was to be understood as something
that is not based upon surmise. Further, Coke said that if a sheriff did have reason to
break a house he must announce his entry. These reasons could have been enough to
dismiss the sheriff’s intrusions. However, what drove Coke to decide upon Gresham’s
behalf was the simple right of personal property. Coke brought forth the famous “castle
doctrine” legal standard which says:
That the house of every one is to him as his Castle and Fortress as well for defence [sic] against
injury and violence, as for his repose; and although the life of man is precious and favoured in
law; so that although a man kill another in his defence [sic], or kill one per infortuntun’ [sic],
without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the
great regard which the law hath of a mans life; But if theeves [sic] come to a mans house to rob
him, or murder, and the owner or his servants kill any of the theeves [sic] in defence [sic] of
himself and his house, it is no felony, and he shall lose nothing, and therewith agreeth [sic] 3 Edw.
3. Coron. 303, & 305. & 26 Ass. pl. 23. So it is holden [sic] in 21 Hen. 7. 39. every one may
assemble his friends or neighbours to defend his house against violence: But he cannot assemble
them to goe [sic] with him to the Market or elsewhere to keep him from violence: And the reason
of all the same is, because domus sua cuique est tutissimum refugium.30

Coke essentially considered natural property rights to be more sacred than an
intrusion based upon bare surmise. Further, the castle doctrine set a standard for
individual rights setting a precedent for self-defense. Semayne’s Case would set a
standard of property rights, that would be strengthened by individual rights, as the most
dignified personal rights of the era.

29

Edward Coke, The Reports of Sir Edward Coke, Knt. In Thirteenth Parts, A New Edition, vol. III
(London: Joseph Butterworth and Son, 1826), 188-190, accessed on October 13, 2016,
https://ia601405.us.archive.org/14/items/reportssiredwar00cokegoog/reportssiredwar00cokegoog.pdf.
30

Coke, The Reports, vol. V, 91a.

13

Coke and the Monarch
In the early seventeenth-century, after the death of Elizabeth I and the accession
of James I, it would have seemed as though a cloud of dust finally settled over England.
The drama of plots to overthrow Elizabeth I and the lack of marriage from the virgin
queen was over. Elizabeth was keen to taking political advice from a close group of
advisors and took a liberal stance on the Court of Common Pleas in civil suits.31 The
opposite would become a theme of James’s rule of England. By 1607, Coke had risen to
be the Chief Justice of the Court of Common Pleas. Coke’s initial challenge to protecting
common law in his court was prohibiting the High Commission from ruling on nonecclesiastical matters. In Coke’s estimation of the Church’s power, he claimed that
ecclesiastical statute law “does not give them any such authority to arrest the body of any
subject upon surmise.” Coke also extended the limitations of statute law to local courts
ruling that if justices in those courts cannot “determine felonies, or other criminal causes
by writ”, they cannot, “without an Act of Parliament… take them within another
county.”32 These standards were an example of Coke elevating civil rights based on
common law over the ecclesiastic statute law directed by the power of the Church and
Monarch. Coke’s clash with other branches of government was just beginning.
Coke’s confrontations with church and local courts would not prove to be as
tremendous as the one with the king. In 1608, James I received support from Coke in

31

George Garnett, "Sir Edward Coke’s Resurrection of Magna Carta", in Magna Carta: History,
Context and Influence, edited by Goldman Lawrence, (London: School of Advanced Study, University of
London, 2018): 56, http://www.jstor.org/stable/j.ctv5136sc.11; Ian Williams, "The Tudor Genesis of
Edward Coke's Immemorial Common Law", The Sixteenth Century Journal 43, no. 1 (2012): 103-23,
http://www.jstor.org/stable/23210757.
32
Edward Coke, The Reports of Sir Edward Coke, xii, 50-53, accessed on September 28, 2016,
https://ia800304.us.archive.org/0/items/reportssiredwar06cokegoog/reportssiredwar06cokegoog.pdf.

14

Calvin’s Case (1608), which determined that any Scot born after the accession of James I
were born sovereign and had the same rights as a native Englishman.33 But things turned
sour when on November 10th of that same year, the Archbishop of Canterbury
approached James complaining about prohibitions of ecclesiastical courts. The
Archbishop and James agreed that “concerning the high commission, the King himself
may decide in his royal person; and that the Judges are but delegates of the King.” Coke
disagreed saying that the king could not judge cases and that “according to the law and
custom of England… the court gives the judgment.” It was important for Coke to
distinguish the law here as a separate entity of government: “no man shall be put to
answer without presentment before the Justices, matter or record, or by due process, or by
writ original, according to the ancient law of the land.” In his response James claimed the
law was based on reason and that he and others had reason. Coke agreed but contested
that “his Majesty was not learned in the laws of his realm of England.”34 It is reported
that James almost struck Coke but he was pardoned when Coke pleaded his allegiance on
his knees. However dramatic this encounter was, Coke’s support of common law,
specifically his reference to the court’s requirement of due process and an original writ, is
important. This standard would carry over to one of Coke’s most important cases in his
tenure.

33

Coke, Reports, vii, 48.

34

Coke, Reports, vii, 63-65, accessed on October 11, 2016.

15

Dr. Bonham’s Case
Thomas Bonham was an educated physician who practiced in London. However,
Bonham was not accredited to practice medicine by the College of Physicians. Thus, the
college took it upon themselves to arrest Bonham for practicing without a license.
Bonham responded by suing the college for false imprisonment. In Dr. Bonham’s Case,
heard in 1610, Coke ruled that the college had no right, like the king, to enact the law and
only judges of the court could do so. Although what Dr. Bonham was doing was illegal
and against acts of Parliament, it was not up to the college to decide so. Coke ruled that
the common law may void acts of Parliament when they are “against common right and
reason, or repugnant, or impossible to be performed.”35 This language is very similar not
only to judicial review, founded almost two hundred years later, but interprets legal
matters of having fundamental “reason” and “right.” Even more so, one hundred fifty-one
years later Dr. Bonham’s Case would be referenced in James Otis’s Writs of Assistance
case in which John Adams said: “then and there the child Independence was born.”36
Hale and Hawkins
Coke was the most prominent common law lawyer of the seventeenth-century.
However, he was not the only one to comment on search and seizure law. Matthew Hale
and William Hawkins both wrote prominent treatises during this era which also served as
future references by American colonial revolutionaries. Hale made his case against

35

Edward Coke, The Selected Writings and Speeches of Edward Coke Volume I, ed. Steve
Sheppard (Indianapolis: Liberty Fund, 2002), 264, 275, accessed on October 11, 2016, http://lfoll.s3.amazonaws.com/titles/911/0462-01_LFeBk.pdf.
36
C. James Taylor, “Founding Families: Digital Editions of the Papers of the Winthrops and the
Adamses (Boston: Massachusetts Historical Society, 2016), accessed on October 11, 2016,
https://www.masshist.org/publications/apde2/view?id=ADMS-05-02-02-0006-0002-0001.

16

general warrants in The History of the Pleas of the Crown. He argued that if, under oath,
there is suspicion and proof of probable cause, a justice may serve a warrant to detain the
accused. Under said warrant, an arrest is legal and if no arrest is obtainable, an officer
“may break doors to take him, if within a house.”37 Hale continued in his second volume
in requiring a detailed description of what is to be searched when property is seized. He
also supported the condition that a detailed process of the search must be documented.
Hale’s conclusion on general warrants and search and seizure procedures came in a
chapter dedicated to the cause titled “Concerning warrants to search for stolen goods, and
seizing them.” He outright dismissed “a general warrant to search in all suspected
places,” but supported “only to search in such particular places, where the part assigns
before the justice his suspicion and the probable cause thereof.” Hale’s simple
explanation for these regulations was that “warrants are judicial acts, and must be granted
upon examination of the fact.”38 In other words, Hale claimed that warrants could only be
judged upon by the court, and not interfered with by the monarch.
William Hawkins’ Treatise of Pleas of the Crown was published after Hale’s and
provided some additional details on the legality of warrants. Hawkins argued that if an
arrest was made without a warrant nor with probable cause, a later warrant could not be
used for the same arrest. Further, if an arrest was made with a warrant and the accused

37

Matthew Hale, History of the Pleas of the Crown vol 1 (London: E. and R. Nutt, and R.
Gosling, 1736), 580, accessed on February 14, 2017,
https://ia800301.us.archive.org/30/items/historiaplacitor01hale/historiaplacitor01hale.pdf.
38
Hale, vol. 2, 113, 150, accessed on February 14, 2017,
https://ia800203.us.archive.org/31/items/historiaplacitor00hale/historiaplacitor00hale.pdf.

17

was found to be not guilty, the same warrant to make the original arrest could not be used
again.39
Most credit is deservedly given to Coke for setting precedent for some of the most
important parts of English law. However, these sections of Hale and Hawkins would
prove pivotal in the future of law as well. In the next century, Blackstone would use the
treatises of Coke, Hale, and Hawkins to create the standard of English law. Additionally,
courtrooms on both sides of the Atlantic would become filled with quotes from Hawkins,
Hale, and Coke in protecting individuals against searches and seizures without probable
cause and attacks on general warrants.
Blackstone and British Constitutionalism
Once Coke firmly established himself as a more loyal servant to liberty than the
king, he would not waver. With reference to distinguished documents like Magna Carta
and other ancient statutes Coke continued to thrive against the monarch’s wish. Coke
would survive to see the Petition of Right passed in 1628 which limited the monarch’s
prerogative and extended the liberties of individuals. But, Coke’s life would end before
serious constitutional liberties would be enforced. The Habeas Corpus Act of 1640, later
edited by the Habeas Corpus Act of 1679, was just one document that Coke would have
been proud to support. The Habeas Corpus Act served as an extension to Magna Carta
by ensuring more protection for individual liberty. Although Magna Carta assured
individuals protection from illegal imprisonment, it did not state anything about how one
could sue for illegal imprisonment. Thus, the new act stated that a writ of habeas corpus

39
William Hawkins, A Treatise of the Pleas of the Crown (London: E. Richardson and C. Lintot,
1762), 81, accessed on February 14, 2017,
https://ia600206.us.archive.org/14/items/treatiseofpleaso00hawk/treatiseofpleaso00hawk.pdf.

18

had to prove that the process in which anyone accused of a crime and detained was done
legally. This clause essentially limited prosecutors’ power by granting due process for
defendants. Additionally, Habeas Corpus would be used to protect those whose privacy
was violated by illegal search and seizure.40
Locke, 1688 Revolution, Bill of Rights
Habeas Corpus and the Petition of Right were passed by Parliament to curb the
monarch’s privilege. However, politicians of the seventeenth-century were not the only
ones realizing how increasingly threatening the power of the monarchy was. Reading,
writing, and practicing of sciences became more pronounced in the seventeenth-century.
One of the leading arts in the seventeenth-century was philosophy. John Locke, born in
1632, was the leading philosopher of the era. He thought that the connection between
philosophy and law was influential to the general society. Locke’s work contested the
generally assumed principle that the king, the church, and judges determined law and
order of society. Locke’s Second Treatise on Government, written in 1689, challenged
assumptions of divine right, political privilege, and consequences of breaking the
“contract theory.” This encouraged the common man to reconsider his role in social and
political structures like government, law and order, and business. Thus, as English
citizens began to re-evaluate the power individual liberty could have, a support for more
representation in government began. The turbulent autocratic style of governmental rule
culminated when Parliament overthrew the monarch in the 1688 Revolution.
Subsequently, Parliament passed the English Bill of Rights in the same year turning an

40
The Petition of Right, 1628, 3 How. St. Tr. 59, 222-34, accessed on January 17, 2017,
http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs3.html; Habeas Corpus Act,
1679, 31 Car. 2, chap. 2, accessed on January 17, 2017, http://presspubs.uchicago.edu/founders/documents/a1_9_2s2.html.

19

absolute monarchy into a constitutional monarchy. The transformation from an autocracy
to a constitutional monarchy allowed constitutional law to become the most profound
political voice of the eighteenth-century.41
Blackstone
It has been argued which individual had the most influence on establishing the
laws of England. Those who consider Coke the hero of English liberty and contend that
his contributions to common law reign supreme should not be ignored.42 However,
William Blackstone is normally celebrated as England’s most influential jurist
responsible for civil liberty.43 Born almost one hundred years after Coke’s death, the
transition of government power from the monarch to Parliament allowed Blackstone’s
jurisprudence to be read more liberally. Additionally, Blackstone’s method in interpreting
common law differed from Coke in that the former practiced a lecture style learning
process while the latter contained his jurisprudence in court. What grew out of
Blackstone’s common law lectures would become four volumes of the Commentaries on
the Laws of England.

41
C.B. McPherson, ed., John Locke Second Treatise of Government (Indianapolis: Hackett
Publishing Company, 1980), 4, 28-29, accessed on January 17, 2017, www.gutenberg.org/files/7370/7370h/7370-h.htm.
42

J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A study of English Historical
Thought in the Seventeenth Century (Cambridge: Cambridge University Press, 1987), 31, accessed on
January 16th, 2020.
43
Albert W. Alschuler, “Rediscovering Blackstone”, University of Pennsylvania Law Review 145,
no. 1 (1996): 2, accessed on January 20, 2020, https://www.jstor.org/stable/3312712.

20

References from the origins of the Fourth and Fourteenth American constitutional
amendments can be found in Blackstone’s Commentaries.44 Origins of equal opportunity
and protection of laws are found in Blackstone’s first volume entitled “Of the Rights of
Persons” and specifically the first chapter “Of the Absolute Rights of Individuals.” In this
section Blackstone details the difference between private protections and natural liberty.
He explains this by listing famous English statutes such as Magna Carta, Habeas
Corpus, Bill of Rights, and Petition of Right as “private protections” which is
government’s responsibility to uphold. He then explains that those protections “will
appear… to be indeed no other, than either that residuum of natural liberty, which is not
required by the laws of society to be sacrificed to public convenience.” 45 Blackstone
believed that natural liberty, defined as “acting how one sees fit,” had a set place in
public society. Thus, even with laws enforced by the government, there were certain
settings of society that could not be judged by anyone without exception. Preserving
individual property rights using common law was only part of the equation. Blackstone
borrowed Locke’s argument from Two Treatises of Government that “the original of

44

Blackstone claimed in his first volume, “Of the Rights of Persons,” that the separation of natural
law and private law was essential safeguard individual liberty, a vital factor in ratifying the Fourteenth
Amendment. William Blackstone, Commentaries on the Laws of England, Book the First (Oxford:
Clarendon Press, 1765), 119-132, accessed on November 11, 2016,
https://ia800300.us.archive.org/3/items/BlackstoneVolumeI/BlackstoneVolume1.pdf; Blackstone argued in
his second volume, “Of Real Things,” that personal property is both a private and natural right, an
important implication in the Fourth Amendment Era to define what was protected against unreasonable
searches and seizures. William Blackstone, Commentaries on the Laws of England, Book the Second
(London: A. Strahan, 1825), 16-17, 20, accessed on November 23, 2016,
https://ia800201.us.archive.org/22/items/commentaries_of_on_the_laws_of_englandvol2/Commentaries_o
n_the_laws_of_England___An.pdf.
45

Blackstone, Book the First, 119-125, accessed on November 11, 2016.

21

private property is probably grounded in nature.”46 Blackstone basically took Coke’s
examples of private liberty and combined it with Locke’s philosophy of natural liberty.47
Blackstone summed up this combination of natural liberty and private protections
as “the rights of the people of England,” which he said, “may be reduced to three primary
articles; the right of personal security; the right of personal liberty; and the right of
personal property.” What concerns us here is Blackstone’s definition of “the right of
personal liberty” which, “consists of the power of loco-motion, of changing situation, or
removing one’s person to whatsoever place one’s own inclination may direct.”
Blackstone was clear that this particular right was “strictly natural.” Like personal
security, individuals had the right to be free within themselves especially when it came to
government rule. In a heated phrase Blackstone condemned “violence to confiscate his
estate, without accusation or trial”, as “so gross and notorious an act of despotism, as
must at once convey the alarm of tyranny throughout the whole kingdom.” In simpler
words Blackstone considered unlawful confiscation of personal liberty and individual
rights as tyrannical and despotic.48
Blackstone’s second volume, titled “Of Real Things,” identifies property law as
“things real” and “things personal.” Whether something is “real” or “personal,” the
identification of “things,” in a legal sense, are completely private rather than natural. For
example, things “real” encompass “lands, tenements, and hereditaments.” Things
“personal” are “goods, money, and all things moveable.” Next, Blackstone equates “real”

46

Alschuler, “Rediscovering Blackstone,” 29.

47

Blackstone, Book the First, 121, accessed on November 22, 2016.

48

Blackstone, Book the First, 125, 130-132, accessed on November 22, 2016.

22

and “personal” things as vital to individual rights. In things “real” Blackstone gives the
example of one’s house by saying that legally, “it signifies everything that may be holden
[sic], provided it be of permanent nature.” Blackstone identifies corporeal hereditaments
as something that “consists wholly of substantial and permanent objects.” Meanwhile,
incorporeal hereditaments, is “a right issuing out of a thing corporate (whether real or
personal) or concerning, or annexed to, or exercisable within, the same.” The difference
between corporeal and incorporeal hereditaments for most eighteenth-century English
property law cases was important because it signified what type of property could be
inherited. But for cases disputing illegal invasions, the purpose for differentiating types of
property would prove to be important when arguing whether an invasion of something
“real” or “personal” was legal.49
In the next section Blackstone tackled the property of “personal” things, in which
he broke down into “possession” and “action.” Specifically, titled property in “possession
absolute” states that “a man hath, solely and exclusively, the right, and also the
occupation, of any moveable chattels; so that they cannot be transferred from him, or
cease to be his, without his own act or default.” 50 If one has property in “action” it means
that one has a right to property but not possession of it. Possession of property in “action”
could be granted by a “suit or action at law.”51
It is unlikely that Blackstone’s property law definitions were written specifically
to connect individual rights with search and seizure law. However, because he defined

49

Blackstone, Book the Second, 16-17, 20, accessed on November 23, 2016.

50

Blackstone, Book the Second, 389.

51

Blackstone, Book the Second, 397.

23

Locke’s principles of natural law and Coke’s principles of common law as reliant on each
other, the sum created a new standard in English constitutionalism. Blackstone was not
setting out to establish a set of rules for a new government. Commentaries was simply a
set of common law guidelines from Blackstone’s lectures. Thus, because Blackstone was
a lifelong supporter of the English Crown, and member of Parliament, it is ironic that his
Commentaries became one of the most significant influences on the US Constitution.
1760s English Parliament Upheaval: Wilkes, Liberty, and Number 45
This introduction of English common law sets the stage for a few immediate
examples of unreasonable searches and seizures being illegally used by the English
Crown prior to the American Revolution. Those came from the remarkable opinions of
two of the most distinguished judges in the Court of Common Pleas of the eighteenthcentury. Charles Pratt, officially Earl of Camden, and William Pitt, officially Earl of
Chatham, were very well respected British political leaders. However, they opposed the
Crown persecuting citizens from any threat. Pitt and Pratt also rallied with the citizen
population’s opinion of equal and democratic rights. The rise of improved civil rights was
spearheaded by four years of continual court cases. That movement was led by one
Member of Parliament who, although indirectly, helped shape American constitutional
influence for protections against general warrants and unreasonable searches and
seizures.
Pratt and Pitt
Charles Pratt and William Pitt came from similar upbringings, having both
attended Eton, a highly respected English boarding school. After their schooling both
men made their way into political careers. Pratt’s pursuits led him to be named Attorney

24

General in 1757 while Pitt became Prime Minister.52 In 1758, Pratt introduced the Habeas
Corpus Bill of 1758, aimed at extending habeas corpus to civil cases. Pratt’s purpose for
the bill was to give the wrongfully imprisoned a quicker road to recovering damages.
Although denied by Parliament, Pitt was a vocal supporter of the bill. This would be an
early of example of these politicians pushing for an extension of rights for individuals. In
1761 Pratt was announced as the new Chief Justice of the Court of Common Pleas and he
officially took his seat the next year. In the years to follow, Pratt and Pitt would serve as
two of the most powerful members of Parliament. However, they remained a relative
minority. At a time when the monarch was still the most influential political figure in
Britain, Parliamentarians generally followed the king’s lead. The monarch and his
followers would argue for administrative and divine-right rule. Thus, defense of
individual rights for those whose private possessions had been illegally searched and
seized would be one of the most heated debates in Parliament.53
Wilkes v. George III
In 1757 John Wilkes, a liberal member of Parliament, wrote William Pitt
declaring his devotion to Pitt as a leader of the British government.54 Although Wilkes
worked in the legislature, his support of Pitt was the extent of his backing of the

52

Marjie Bloy, “William Pitt the Elder, first Earl of Chatham (1708-78)”, A Web of English
History, January 12, 2016, accessed on December 12, 2016, http://www.historyhome.co.uk/pms/pitt-e.htm;
“Charles Pratt, first Earl of Camden (1714-1794)”, A Web of English History, January 12, 206, accessed on
December 12, 2016, http://www.historyhome.co.uk/people/camden.htm.
53

Kevin Costello, “Habeas Corpus and Military and Naval Impressment, 1756-1816”, Journal of
Legal History 26, no. 2 (August 2008): 220-222, accessed on January 19, 2017,
http://eds.a.ebscohost.com/eds/pdfviewer/pdfviewer?sid=f0a22671-06a9-4998-91d4194662a46220%40sessionmgr4009&vid=4&hid=4213.
54
John, Earl of Chatham, eds., Correspondence of William Pitt, Earl of Chatham (London: John
Murray, Albemarle Street, 1838), 239-240, accessed on December 12, 2016,
https://ia801408.us.archive.org/13/items/correspondencewill01pitt/correspondencewill01pitt.pdf.

25

government. He vehemently disagreed with King George III’s political actions and stated
it publicly. In his anonymous newspaper, the North Briton, Wilkes wrote that the “crown
has been obnoxious to the nation.”55 He expressed discontent for the very group he
worked for saying that “acts of violence are committed by any minister” and described
the Crown as “vulgar” and “wicked.” However, it was his attack against the Peace of
Paris in the infamous North Briton 45 that pushed King George to charge the writer of the
paper with seditious libel.56
Against Wilkes’ will, messengers sent by King George ransacked Wilkes’ home
in the middle of the night on April 30th 1763. They were searching for a seditious libel
against the king that would imprison Wilkes for treason. However, the warrant they
obtained from Secretary of State Lord Halifax was faulty. Reported by London
periodicals, the warrant did not specify the exact papers to seize nor proof beyond
surmise that Wilkes was the author. The flawed warrant read: “These are in his Majesty’s
name to authorize and require you (taking a constable to your assistance) to make strict
and diligent search for the authors printers and publishers of a seditious and treasonable
paper entitled the North Briton XLV Saturday April 23 1763 [. . .]”57

55

John Wilkes, The North Briton, from No I to No XLVI inclusive (London: W. Bingley, at No
XXXI in Newgate Street, 1769), 156-157, accessed on December 12, 2016,
https://ia801401.us.archive.org/22/items/thenorthbriton00unknuoft/thenorthbriton00unknuoft.pdf.
56

Jeremy Black, George III: Americas Last King (New Haven: Yale University Press, 2006), 77,
accessed on December 12, 2016, http://eds.a.ebscohost.com.navigatoresu.passhe.edu/eds/ebookviewer/ebook/ZTAwMHhuYV9fOTc3OTk3X19BTg2?sid=705b9b0a-9a24-4a7fbf7a-c9fcd46924d9@sessionmgr4006&vid=7&format=EB&rid=11.
57
Father of Candor, John Almon, A. Letter Concerning Libels, Warrant, The Seizure of Papers,
and Sureties for the Peace or Behaviors; With A View to Some Late Proceesings, and the Deference of
Them by the Majority (London: J. Almon, 1765): 43, accessed on January 22, 2020.

26

The monarch establishment did not expect such a vehement response from Wilkes
and his supporters. Wilkes almost immediately filed suits of trespass against every
official that was involved with the seizure of his possessions.58 In addition, the Court of
Common Pleas issued a writ of habeas corpus on behalf of Wilkes. However, according
to Wilkes’ defense, “though by reason of the pronothory’s office not being open, such
Habeas Corpus could not be sued out till four o’clock in the afternoon.”59 Wilkes was not
only being deprived of his right of private property but was also being denied access to a
judge; one of the most sacred rights of individual freedom. In the coming days Wilkes
was finally able to see Chief Justice Pratt who considered Wilke’s testimony valid
enough to bring his suit to trial. The violations of unwarranted searches and seizures and
denial of habeas corpus was published in the popular London periodical the Gentleman’s
Magazine. Interestingly enough, Britain periodicals were not the only sources covering
the case. Similar accounts during the same time, sent by a supporter of Wilkes’ cause,
appeared in the American colonies and were distributed from Boston to Philadelphia.60

58

Levy, Origins of the Fourth Amendment, 86-87.

59

John Oate, The Gentelman’s Magazine, vol. 33 (London: St. John’s Gate, 1763), 239.

60

“An Authentick account of the proceedings against John Wilkes, Esq; Member of Parliament
for Aylesbury, and late colonel of the Buckinghamshire militia. Containing all the papers relative to this
interesting affair, from that gentleman's being taken into custody by His Majesty's messengers, to his
discharge at the Court of Common Pleas. : With an abstract of that precious jewel of an Englishman, the
Habeas Corpus Act. : Also the North Briton no. 45. Being the paper for which Mr. Wilkes was sent to the
Tower. : Addressed to all lovers of liberty,” printed in London, re-printed in Philadelphia and sold by W.
Dunlap in Market Street, 1763, accessed on December 27th, 2016,
http://quod.lib.umich.edu/e/evans/N07474.0001.001?rgn=main;view=fulltext; This article was also reprinted in Boston and sold by Richard and Samuel Draper in Newbury-Street; Thomas and John Fleet at
Heart & Crown in Cornhill; and Edes and Gill, next the prison in Queen-Street, 1763,
http://link.upsem.edu/portal/An-Authentick-account-of-the-proceedings-against/qm_DVThFzxw/.

27

Wilkes v. Wood
The case culminating from Wilkes’ civil trespass suit against the state would
come to be known as Wilkes v. Wood. Wood, one of the agents of the government who
searched Wilkes’ home, claimed that he was simply acting on behalf of orders from the
state. Pratt quickly dismissed this claim saying that “if [. . .] a Secretary of State [. . .] 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.”61 Wilkes’ argument was
much more passionate than Wood’s. His defense’s claim was that the warrants used to
search his private property was in violation of English common law. The jury supported
Pratt’s opinion and ruled in favor of Wilkes and awarded him one-thousand pounds for
damages done against him.62
Even more significant was Wilkes’ retribution across the Atlantic. The British
government’s response to Wilkes and his associates’ passionate appeals covered British
tabloids and soon enough made it to the American colonies. Colonists immersed
themselves in Wilkes’ trial and revered his vehement opposition to general search
warrants. The Sons of Liberty were at the forefront of Wilkes’ rally, maintaining a
correspondence with Wilkes, claiming he was an “incorruptly honest man and a patriot.”
They also respected his “perseverance of the good old cause.” The Sons of Liberty also
held “forty-five” themed rallies in reference to the infamous paper that started the
resistance to the government.63 When Wilkes faced trial again in 1768 and was

61
Wilkes v. Wood, 98 Eng. Rep. 489, 498-99 C.P. 1763,
http://presspubs.uchicago.edu/founders/documents/amendIVs4.html.
62

Wilkes v. Wood.

63

Levy, “Origins of the Fourth Amendment,” 86-87.

28

imprisoned for seditious libel, American colonists showed their support for him by
sending him two turtles from Boston and forty-five hogshead of tobacco from Maryland
and Virginia. South Carolina sent him £2,500 “for the support of the just and
constitutional rights and liberties of the people of Great Britain and America.64
Entick v. Carrington
While Wilkes proved to be a rallying cause for Trans-Atlantic civil liberty
supporters, another search and seizure case was under way in Britain. The victories of
Wilkes and his associates gave others confidence to come forward with an appeal that
general warrants were used to prosecute them. Entick v. Carrington (1765) was very
similar to Wilkes v. Wood. Like in Wilkes, Lord Halifax ordered messengers to search
Carrington’s private possessions for a seditious libel. It was reported that the messengers
caused about two thousand dollars’ worth of damage when searching through John
Entick’s papers and did not perform their search as strictly as their warrant allowed.
Thus, when Entick brought suit against Carrington, Pratt considered the action of trespass
versus whether the defense had the right to search Entick’s possessions. Pratt simply
opinioned that “by the laws of England, every invasion of private property, be it ever so
minute, is a trespass.” He concluded that there is nothing in the common law or statute
law that gives anyone the right to abuse the power of a warrant by unreasonably
searching one’s private possessions against their will.65

64

Committee of the Boston Sons of Liberty, “Papers of John Adams, Volume 1,” The Adams
Papers (Boston June 6th 1768), 215, accessed on January 19, 2017,
https://www.masshist.org/publications/apde2/view?id=ADMS-06-01-02-0070; Peter D.G. Thomas, John
Wilkes: A Friend to Liberty (Oxford: Oxford University Press, 1996), 161-162.
65
Entick v. Carrington, 19 St. Tr. 1029, 1765; Richard A. Epstein, “Criminal Procedure in the
Spotlight: Entick v. Carrington and Boyd v. United States: Keeping the Fourth and Fifth Amendments on
Track”, University of Chicago Law Review 82, no. 27 (Winter 2015), 28-29, accessed on December 27th,
2016, http://www.lexisnexis.com.navigator-esu.passhe.edu/hottopics/lnacademic/

29

An important differential in Entick would prove to make it, as the US Supreme
Court called it in Boyd v US (1886), “one of the landmarks of English liberty.” In Pratt’s
estimation, allowing general warrants to be used by the government upon suspicion of
seditious libel risked self-incrimination. Pratt theorized that an illegal warrant drawn up
by a government official could not be used without violating the right against selfincrimination. A little over one hundred years later, the Boyd court would heavily rely on
Entick and by result help launch Fourth Amendment law into a new view.66
Colonies In Upheaval
An understanding of the effect individual rights had on search and seizure law in
the 1760s can mostly be found in Britain. Men like Wilkes and Entick had little reason to
risk their lives for anyone in the colonies. Nonetheless, American colonial political
activists were enthralled with English politics that favored strong rights for citizens and
checked Crown authority by a constitutional legislature. Although primarily led by
American colonists, a link between causes for liberty on each continent was established.
At the same time, as colonists read reports of the Wilkes and Entick cases, acts that
threatened colonists’ protection against arbitrary searches of their property were being
passed by the British government. For example, the Molasses Act, originally enacted in
the seventeenth-century, allowed British customs officials to search any vessel for goods
to be taxed without a descriptive warrant. Custom’s agent’s excuse for these kinds of
searches were known as “writs of assistance” which were used in the Atlantic world since
the thirteenth-century.67 Those most affected by these searches were merchants of the

66

Levy, “Origins of the Fourth Amendment,” 88-89.

67

Thomas N. McInnis, The Evolution of the Fourth Amendment (Lanham, MD: Lexington Books,

2010), 18.

30

middle class of colonial America. In a prominent colonial American search and seizure
case, James Otis Jr. stepped in to defend the merchant. His defense was famously known
as the Writs of Assistance Case. In the Boston courthouse to hear the proceedings was a
young fiery patriot, John Adams, who concluded that “then and there the child
Independence was born.”68

68
The Adams Papers Digital Editions, “Editorial Note”, Founding Families: Digital Editions of
the Papers of the Winthrops and the Adamses, ed. C. James Taylor (2017), in the Boston: Massachusetts
Historical Society, accessed January 19, 2017,
https://www.masshist.org/publications/apde2/view?id=ADMS-05-02-02-0006-0002-0001#LJA02d034n48.

31

CHAPTER 2
1761-1768: ORIGINS OF SEARCH AND SEIZURE AND INDIVIDUAL LIBERTY IN
THE AMERICAN COLONIES

The Fourth Amendment to the United States Constitution states that:
“the right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”1
Otis, Adams, and Writs of Assistance (1761)
To argue that the Fourth Amendment was written to be reinterpreted one must
consider the driving force behind ratification. The first legitimate threat to Britain’s
authoritative search and seizure power came from James Otis’ Writs of Assistance Case
in 1761. The dispute over whether writs of assistance were legal or not came into
question when the British customs officials’ writs expired the previous year. Under

1

U.S. Constitution, Amendment IV.

32

British statute law, if writs of assistance were not renewed within six months after the
death of the monarch the writs would expire.1 When the writs expired, Boston merchants
whose commercial businesses had been threatened by general warrants, petitioned the
Massachusetts Bay Superior Court to abolish writs of assistance. The question that the
court considered was whether the same form of old writs would be renewed or a new type
of writs preventing general searches would become the law. Otis quoted statutes passed
by Charles II in the 1660s as the basis for why writs of assistance were being issued.1
This claim, as argued by Otis, was contradictory to common law. To support this Otis
argued that in “more modern books you will find only special warrants to search such and
such houses, specially named, in which the complaint has before sworn that he suspects
his goods concealed; and will find it adjudged that special warrants only are legal.”2 It is
safe to say that Otis’ mention of “modern books” refers to Coke, Hale, Hawkins, and
Blackstone. This is so because he also remarked on “old books concerning the office of a
justice of the peace precedents of general warrants to search suspected houses”3 which
must be alluded to Charles II’s rule.

1

Nelson B. Lasson, The History and Development of the Fourth Amendment to the United
StatesConstitution (Baltimore, MD: The Johns Hopkins Press, 1933), 57.
1

"Charles II, 1660: An Act to prevent Fraudes and Concealments of His Majestyes Customes and
Subsidyes.," in Statutes of the Realm: Volume 5, 1628-80, ed. John Raithby (s.l: Great Britain Record
Commission, 1819), 250. British History Online, accessed January 21, 2017, http://www.britishhistory.ac.uk/statutes-realm/vol5/p250; "Charles II, 1662: An Act for preventing the frequent Abuses in
printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and
Printing Presses.," in Statutes of the Realm: Volume 5, 1628-80, ed. John Raithby (s.l: Great Britain Record
Commission, 1819), 428-435. British History Online, accessed January 20, 2017, http://www.britishhistory.ac.uk/statutes-realm/vol5/pp428-435.
2

Against Writs of Assistance, Superior Court of Massachusetts (1761).

3

See footnote 8, describes laws enacted by the monarch prior to the publishing of common law

treatises.

33

Otis was also concerned about who or what in particular could take advantage of
general warrants. Technically, private citizens could call on the government to deliver
writs on their behalf. However, in colonial Boston the only writs to search and seize
colonists’ property were carried out by British officials on behalf of their colonial
government. Thus, Otis’ declaration that “every one with this writ may be a tyrant” was
an attack on what the colonists viewed as an oppressive use of the writ by the British
government. Otis simplified his argument against writs of assistance by referencing one
of the most basic English legal standards: “A man’s house is his castle; and whilst he is
quiet, he is well guarded as prince in his castle.”4 Otis’ case text was indeed longer than
the record shows, but sources show that the remainder of his speech was summarized by
John Adams.
John Adams was an ambitious young lawyer in 1761 when he witnessed Otis’
passionate speech. Adams’ testimony of Otis’ case was arguably just as passionate as
Otis’ speech itself. Although seen in 1761 as radical, much of the phrases Adams would
use to explain Otis’ case would soon be promoted in the colonies and later be debated on
at conventions in Philadelphia. One of Adams’ conclusions of Otis’ argument was the use
of writs of assistance as an “Act of Trade.” He said that “as revenue laws, they destroyed
all our security of property, liberty, and life.”5 Towards the end of Adams’ life, in a
correspondence with William Tudor, he was asked about Otis’ case. Adams included
testimony of the case he didn’t specifically summarize in 1761. According to Adams,
Otis brought up the use of the Navigation Act of 1660 in the case. Otis did not deny the

4

Against Writs.

5

Against Writs.

34

general purposes of the act, nor the effect it had on creating revenue for the Britain. His
problem with the act was that it was being used to create writs of assistance for non-tax
purposes. Otis claimed, according to Adams, that “Houses were to be broken open, and if
a piece of Dutch linen could be found, from cellar to the cock-loft, it was to be seized and
become the prey of governors, informers, and majesty.”6
Possibly the most accurate and informative source about the amplifications of the
Writs of Assistance case comes from one of Adams’ decedents. His grandson, Charles,
wrote and edited the works of his grandfather in a multi-volume text. Additionally, a
more distant relative to Adams, Josiah Quincy Jr., composed a detailed text of the Writs
proceedings in a volume of Massachusetts Supreme Court cases from 1761-1772. Both of
these publications support the nuts and bolts facts of Otis’s case. However, they also
include discussions, policies, and arrangements that point to a rigged conclusion of the
case before it started.
Josiah Quincy Jr. was the mayor of Boston from 1845-1849 and grandson of
Josiah Quincy II, a spokesman for the Sons of Liberty and a close confidant to John
Adams. In Quincy’s account of the Writs of Assistance case he explains that a letter from
William Pitt ordered colonial customs officials to strictly suppress trade with the French.
In Pitt’s instructions, he says to “take every step, authorized by Law, to bring all such
heinous Offenders to the most exemplary, and condign Punishment.”7 Although Pitt’s
orders specifically said to act within the law, it seems as though his passionate directive
6

Charles Francis Adams, The Works of John Adams, Second President of the United States Vol X
(Boston, MA: Little, Brown and Company, 1856), 319.
7
Gertrude Selwyn Kimball, Correspondence of William Pitt when Secretary of State with Colonial
Governors and Military and Naval Commissioners in America (London: The Macmillan Company, 1906),
320-321.

35

was used by British colonial authority to condemn American colonists as well. Quincy
concluded that this correspondence must have been an order for British Colonial
Administrator Francis Bernard. Bernard was to request new writs from the colonial
government. Further, in his autobiography, John Adams said that “the king sent
instructions to his custom house officers to carry the acts of trade and navigation into
strict execution.” Adams must have been referring to the orders sent by Pitt because no
other record shows those type of instructions sent to the colonial government that year. In
the edited section of his autobiography, Charles Adams said that this deduction “is the
only allusion, in the Diary, to this incident, which, according to the writer’s own account
had so great an influence over his subsequent career.”8 In other words, Otis’s hard-fought
arguments never had a chance to deny writs of assistance because the colonial
government had already decided any resistance against them would be blocked.
The outcome of the case ruled in favor of the customs officials. They were
granted new writs by newly appointed Chief Justice Hutchinson. Even though Pitt
specifically instructed to abide by the law and Bernard ensured Pitt no stricter measures
on trade and customs were necessary, the writs were enforced. The new writs of
assistance became an easily streamlined way to enforce customs searches via the

8
Charles Francis Adams, The Works of John Adams, Second president of the United States Vol II
(Boston, MA: Charles C. Little and James Brown, 1850), 124, accessed on February 3rd, 2017, http://lfoll.s3.amazonaws.com/titles/2100/Adams1431-02_Bk.pdf.

36

Navigation Act of 1660.9 Further, a controversial battle for the new Chief Justice position
put a British loyalist in charge. In 1760, Chief Justice Sewall died leaving the most
powerful judicial seat in the Massachusetts colony court open. Former governor of
Massachusetts, William Shirley had promised the seat to James Otis Sr. when Sewall
died. However, with Bernard in charge, he gave the job to his lieutenant governor
William Hutchinson. In 1760, the assumption for this move was probably just political
motive. Otis was radical and Hutchinson was loyal. However, the evidence from the
Bernard papers show that he had contact with over 350 different politicians in the
colonies and England. Letters sent by Bernard to Hutchinson and other English loyalists
prove that Hutchinson was appointed to alleviate illegal actions taken by customs
officials. The Writs of Assistance case never had a chance.10
The writs of assistance Otis and other Bostonians protested sparked a series of
events in which Great Britain sought to undermine the liberty of the American colonists.
Because writs of assistance were renewed by the new sovereign George III, colonial
customs officials could use them to enforce the Navigation Act. In turn, customs officials

9

The Navigation Act of 1660 is “For the increase of shipping and encouragement of the
navigation of this nation, wherein, under the good providence and protection of God, the wealth, safety, and
strength of this kingdom is so much concerned; be it enacted by the King's most excellent majesty, and by
the lords and commons in this present parliament assembled, and by the authority thereof, That from and
after the first day of December 1660, and from thenceforward, no goods or commodities whatsoever shall
be imported into or exported out of any lands, islands, plantations or territories to his Majesty belonging or
in his possession [. . .] in Asia, Africa, or America, in any other ship or ships, vessel or vessels whatsoever,
but in such ships or vessels as do truly and without fraud belong only to the people of England or Ireland [.
. .] and whereof the master and three fourths of the mariners at least are English; under the penalty of the
forfeiture and loss of all the goods and commodities which shall be imported into or exported out of any of
the aforesaid places in any other ship or vessel [. . .]” Danby Pickering, ed., The Statutes at Large From the
Thirty-ninth Year of Q. Elizabeth to the Twelfth Year of K. Charles II. Inclusive. Vol VII (Cambridge:
Joseph Bentham, 1763), 452.
10
Josiah Quincy Jr, Reports of Cases argued and adjudged in the Superior Court of Judicature of
the Province of Massachusetts Bay, between 1761 and 1772 (Boston, MA: Little, Brown, and Company,
1865), 410-412.

37

continued to search and seize ships that they thought contained taxable goods. However,
more had to be done to raise revenue for the British empire after a large debt was created
from the outcome of the Seven Year’s War. The Sugar Act of 1764 was the first new
colonial tax to cut into that debt. The Sugar Act basically reinforced the Molasses Act of
1733. The Molasses Act was put in place to tax non-imperial sugar imports, which were
cheaper than British sugar. However, the British wholly ignored the Molasses Act so that
they could compete with non-imperial sugar prices; specifically, those of the Spanish and
French West Indies.11
Until 1763 this plan, called “salutary neglect,” worked for the British who were
willing to look the other way to regulate trade in their favor. But once substantial revenue
was needed, the British enforced the tax by passing the Sugar Act. American colonists
were outraged. To make things worse, two weeks after the Sugar Act was passed the
Currency Act was enacted. The Currency Act disallowed colonists from printing their
own money. Thus, American colonists had to now pay an outrageous tax that financially
threatened their livelihood and they could not use their own money to pay such tax. Most
of all though, in order for the Sugar Act to effectively police smuggling, every suspected
ship containing sugar had to be searched. Because writs of assistance were renewed in
1761, this made opposing searches to levy the enforced tax impossible to stop.12
James Otis’s reaction to these acts resonated as a threat to personal property. He
questioned, “for what one civil right is worth a rush, after a man’s property is subject to
be taken from him at pleasure, without his consent? If man is not his own assessor in

11

Cuddihy and Hardy, “A Man’s House Was Not His Castle,” 384.

12

Taslitz, 23.

38

person, or by deputy, his liberty is gone, or lays entirely at the mercy of others.”13 A year
later, in 1765, the British Parliament passed the Stamp Act effectively taxing colonists on
documents and other pieces of paper. Although the Stamp Act would be repealed in 1766,
the insinuation that the British government represented the “very zenith of arbitrary
power” would lead American colonists, particularly Bostonians, on a crusade for the
rights they deserved.14
Daniel Malcolm
On September 24th, 1766 colonial customs officials arrived at the home of Daniel
Malcolm in Boston. Malcolm, who just so happened to be one of the merchants that Otis
represented in 1761, was shown an order for writs of assistance by customs officials to
search his wine cellar. Backed by an anonymous tip, the customs officials seemingly had
the ability by law to search and seize Malcolm’s goods. Malcolm refused entrance.
Malcolm, a close friend of Otis and other well-known colonial activists observed a
loophole. By 1766, Parliament was generally uninterested in colonial writs of assistance
cases. They allowed it in the American colonies to raise revenue, but did not want to
support it from overseas after the public negativity from the Writs of Assistance Case.
Thus, local officials in Boston technically had the power to use writs of assistance, but
Governor Bernard would not seek aid from England to support it. Further, part of the

13

James Otis Jr., Rights of the British Colonies Asserted and Proved (Boston, MA: J. Almon,

1764), 58.
14

Against Writs.

39

colonial writs of assistance argument was that since it was Parliamentary led law, it
should not apply to the colonies.15
So, when Malcolm was faced with customs officials entering his wine cellar he
knew that any backup officials called for would be ignored. The Attorney General of
England, William de Grey, realized how the American colonists could legally avoid writs
of assistance. In a letter written to the Commissioners of the Customs in London, de Grey
pointed out that the phrase “and also to enter” should be directly before the phrase “the
same Powers and Authorities” in the customs law books. Thus, saying, “the Officers of
the revenue shall have the same Powers and Authorities as they have in England for
visiting Shops etc. and also to enter Houses etc.”16 This was essentially an admission that
the writs law was faulty. One scholar compares de Grey’s legal responsibility for civic
justice to John Adams’ legal defense of British soldiers in the Boston Massacre case. 17
History does not give much attention to Daniel Malcolm. However, he was deeply
revered by colonial patriots, such as the Sons of Liberty, as one of the most ardent
resisters of British customs laws.18 His name shows up in smuggling and customs issues
more than any other colonist in the second half of the 1760s. Just over a year after

15

Waldo Lincoln, “October Meeting, 1924. Dr. James Denormandie; Malcolm and Writs of
Assistance; Henry and Elizabeth Poole; William Whately to Andrew Oliver; Lincoln Newton Kinnicutt,”
Proceedings of the Massachusetts Historical Society 58, no. 3 (Oct., 1924-Jun., 1925): 5, 11, accessed on
March 28, 2017, https://www.jstor.org/stable/25080166?seq=21#page_scan_tab_contents.
16

Lincoln, “Malcolm,” 13, 21.

17

Lincoln, “Malcolm,” 22. The author questions: “Is it too much to say that in his ruling on the
Writs of Assistance de Grey showed the same sense of public duty that led John Adams and Josiah Quincy
to undertake the defense of Captain Preston?” Lincoln ponders the claim that de Grey felt a sense of duty to
admit his country was illegally handling writs cases, however until this point de Grey was a staunch
loyalist.
18
Lincoln, “Malcolm,” 14-15. Malcolm helped fund Samuel Adams’ debt to the town of Boston.
He also was present at dinner with the Sons of Liberty under the “Liberty Tree.”

40

Malcolm avoided the search of his wine cellar, he maneuvered around the law once
again. Governor Bernard wrote to Pownall that there was “a strong-handed landing a
cargo of a Ship in defiance of law which still remains unpunished for want of Power
rather than Discovery.”19 The “strong-handed landing” was by Malcolm. This record
occurred in the Spring of 1768 which would be the last time the British allowed
smuggling to go unattested. However, this was hardly the end of customs issues in 1768.
The major customs issue of 1768 involved John Hancock and his ship, the Liberty, which
would cause the British to send regular troops to Boston by the fall of 1768. They would
not leave the North American continent until 1790.
Hancock and Liberty
Most American historical narratives credit the Boston Tea Party and Boston
Massacre as major ignitions to the Revolutionary War. British troops were only at those
confrontations because of the resistance customs officials received from angered colonist
over search and seizures into their private quarters. Some historians argue that the
creation of the American Board of Customs Commissioners by the British was one of
their greatest mistakes in antagonizing even more colonial resentment. Reaction from
common citizens to the wealthier merchants in Boston, centered around the resentment of
this new political organization.20 While Bostonians were in the midst of battling customs

19

Massachusetts Historical Society, “March Meeting. Papers of William Livingston; Letters of
Mary Storer; Stamp act Riot in Newport; Children’s Story Books; Hancock’s Sloop ‘Liberty’,”
Proceedings of the Massachusetts Historical Society, no. 3, 55(Oct., 1921-Jun., 1922), 245, accessed on
May 30, 2017,
http://www.jstor.org/stable/pdf/25080130.pdf?refreqid=excelsior%3Ac2a108550228400a733a5c7e130058
52.
20

O.M. Dickerson, “England’s Most Fateful Decision,” The New England Quarterly 22, no. 3
(1949): 388-391, accessed on January 28, 2020, https://www.jstor.org/stable/361315.

41

officials, John Adams took note of what was happening in his city. Adams was stern and
stubborn but certainly fair in his jurisprudence. He did not know it then, but his
jurisprudence of search and seizure principles in 1768 and 1771 would represent both the
British and the colonist’s sides. It was Adams’ defense of liberty for all men, regardless
of nation, that helped lay the groundwork for the most steadfast political writing of the
Revolutionary Era.
John Hancock is famously known for his large signature on the Declaration of
Independence and serving as the first Governor of Massachusetts after American
Independence. Before then, Hancock was one of the leading patriots in the resistance
against British authority in Boston. Even more so, by 1768, Hancock was one of, if not
the most, wealthy men in Boston. His fortune has controversially been discussed as a
smuggling commerce operation that shipped and sold transatlantic products, mostly wine,
while avoiding taxes. Historians have disagreed over Hancock’s motives for the Liberty
case based off his smuggling tactics saying he was trying to “score a victory” for personal
gain. However, his trust from other notable Boston patriots, from Daniel Malcolm to John
Adams, shows that Hancock’s motives were for liberty.21

21
Donald J. Proctor, “John Hancock: New Soundings on an Old Barrel,” The Journal of American
History 64, no. 3 (December 1977), 652-659, accessed on April 29, 2020,
https://www.jstor.org/stable/1887235. Proctor’s article discusses James Truslow Adam’s biography of
Hancock which completely derails the former as a businessman, politician, and academic. Truslow
contends, based on an illegitimate quote, that John Adams stated that there will never be a biography
written on Hancock because he was not worthy. Truslow uses that notion to disparage Hancock’s public
and private career. However, Adams actually said in 1817 of Hancock that “I profoundly admired him, and
more profoundly loved him.” Truslow tries to disparage Hancock by saying that Hancock used the Liberty
for personal political gain. However, another historian William T. Baxter wrote a business history of the
Hancock family based on the family’s papers and concluded that as of 1768 Hancock was striving to
greatly develop his business and that it was not until 1774 that he had assumed enough wealth to transition
full time into politics.

42

What is normally called the Liberty affair began from instigation by customs
officers to have John Hancock tried for forcibly removing a customs officer from his ship
the Lydia on April 9th. Solicitor General Jonathan Sewell did not press charges. Next, on
May 9th, Hancock’s ship Liberty arrived in the Boston harbor from Madeira. It was
recorded by two customs officials that twenty-five pipes of wine were the cargo of the
ship and were properly taxed. However, it was suspected that more wine than reported
would be smuggled in the near future. It was reported by Attorney General William de
Grey later that year, that Hancock boasted before the Liberty’s arrival that he would
smuggle the rest of wine on shore.22
The following month, one of the customs officers, Thomas Kirk changed his story
of what happened on May 9th. His new testimony involved the crew of the Liberty
forcibly holding him under the deck while they removed the smuggled wine off the boat.
Kirk was threatened by the ship captain, known as Marshall, to keep quiet. But, since
May 9th, Marshall had died, relieving Kirk of his secret.23 Thus, on June 10th, the day
after Kirk’s new testimony was reported to the Commissioners of the Customs,
representatives Thomas Hallowell and Joseph Harrison went to inspect the Liberty again.
They found two hundred barrels of oil and a couple barrels of tar. They deemed this was
landed cargo that was not properly taxed, when in fact Hancock was just storing the oil
and tar there. Watching this take place dockside was Daniel Malcolm and other Hancock

22

D. H. Watson, “Joseph Harrison and the Liberty Incident,” The William and Mary Quarterly 20,
no. 4 (Oct., 1963): 586, accessed on May 31, 2017,
http://www.jstor.org/stable/1923533?seq=2#page_scan_tab_contents; “Hancock’s Sloop ‘Liberty’”, 273,
accessed on May 31, 2017.
23
L. Kinvin Wroth and Hiller B. Zobel, The Adams Papers, Legal Papers of John Adams, vol. 2,
Cases 31-62 (Cambridge, MA: Harvard University Press, 1965), 173-193, accessed on June 2, 2017,
https://founders.archives.gov/documents/Adams/05-02-02-0006-0004-0001.

43

allies, who promised not to interfere. They also exclaimed to the officials that the
mooring of the Liberty was not necessary because Hancock would not try to stop the
seizure of her. Despite this, officials seized the Liberty and had it towed under the heavily
armed gun ship, the Romney, to conduct their business. According to Harrison’s personal
account of the events, he and Hallowell walked off the boat, without being accosted.
However, once in the streets, Harrison and his son received “volleys of stones, brickbats,
sticks or anything that came to hand,” from a mob. At one point the son “was knocked
down and then laid hold of by the Legs, Arms and hair of his Head, and in the manner
dragged along the Kennel in a most barbarous and cruel manner.” Harrison and his son
were eventually rescued by compassionate passer byers and slipped into safe homes.
Hallowell received similar treatment and by seven o’clock that evening they had their
families evacuate their homes fearing for their safety. The violent mob broke the
windows of both homes and then turned back towards the wharfs. There they found
Harrison’s pleasure boat, “and from thence dragged up into the Common and there
burned to Ashes.”24
Harrison, like much of the British loyalists in Boston, did not associate the violent
mob activities with Hancock’s personality. Hancock was known as a giver to the poor
and a respectable figure to the British. However, he was a leading figure of those who
disobeyed authority. Harrison exclaimed that Hancock was, “the Idol of the Mob, just as
Mr. Wilkes is in England. Hancock and Liberty being the Cry here, as Wilkes and Liberty
is in London!” Like Wilkes, it is unlikely that Hancock supported violent mob activities.

24
The Boston Evening-Post, June 20, 1768, page 2, column 1, accessed on June 13, 2017,
http://www.masshist.org/dorr/volume/2/sequence/168.

44

Rather, leaders like Hancock and Wilkes were powerful proponents of liberty, especially
in regards to the unlawful seizures of personal property, without involving violent tactics.
In fact, 1768 is the year Wilkes was most liberally tied with American patriots, the Sons
of Liberty to be precise. On June 6th, the Sons of Liberty wrote Wilkes congratulating
him of his return to England after his seat in Parliament was taken and he was forced out
of the country.25
Amidst the mob activities affecting public opinion in Boston, John Hancock was
brought to trial by Jonathan Sewall, the British attorney general in Massachusetts, for
libel. Represented by John Adams, Hancock was charged with lying to Kirk about the
amount of wine brought off the Liberty and the storage of oil and tar on the same ship
without paying duties. The charges of the storage of oil and tar were settled without too
much action. However, the part of the trial about the smuggling of the wine, capture of
Kirk, and the ensuing riot played a pivotal role in the future of colonial and British
relations. Witnesses were required for trial. To Adams’ advantage, most of the witnesses
of the seizing of the ship and mob activities were patriots. When Bernard learned of the
majority of witnesses he cursed the council responsible for gathering the witnesses
saying, “This is a Devil Constitution!” Principal of all the witnesses was none other than
Daniel Malcolm. The authenticity of the effect the Sons of Liberty, whom Malcom was a
member of, had on trans-Atlantic opinions for liberty came in full effect. Hutchinson
claimed “a few days earlier” that Malcolm was “a principal underwriter have resolved to
address Mr. John Wilkes thanking him for the glorious confusion he is putting the

25
Watson, 589; Committee of the Boston Sons of Liberty to John Wilkes, June 6th, 1768, in
Founding Families: Digital Editions of the papers of the Winthrops and the Adamses, ed. C. James Taylor,
vol. 1 (Boston: Massachusetts Historical Society), accessed on June 14, 2017,
http://www.masshist.org/publications/apde2/view?id=ADMS-06-01-02-0070.

45

Government into at home and praying he would afford them his continence and
encouragement in the like measures here.”26 The letter Hutchinson was referring to was
probably the June 6th letter sent to Wilkes signed by well-known patriots including John
Adams himself.27 New developments of the Liberty case led to the discretization of the
most important of the prosecution’s witnesses and eventually charges were dropped.
Colonial organizing and British response: June-October 1768
While John Hancock stood trial, more concerning changes were happening in
Boston. Since the riot resulting from the Liberty affair, reports from British customs
officials described the present violent state of the colonists. Reports included rumors that
another riot was going to ensue on June 11th. To resolve these issues, Hancock and Otis
met with Bernard in good faith to resolve peace between the British and colonists.
However, the British would only accept a written truce submission. No official resolve
was reached. It seems that the riot on June 11th, and the Governor’s refusal to declare any
further protection caused British colonial officials to legitimately fear for their safety.
This was enough to instigate the Board of Commissioners to seek refuge. By Monday

26

Liberty Sloop, 256; Jonathan L. Fairbanks, “Paul Revere and 1768: His Portrait and the Liberty
Bowl”, in “New England Silver & Silversmithing”, The Colonial Society of Massachusetts 70 (2001), 144,
accessed on June 13, 2017, https://www.colonialsociety.org/node/1364#ren253.
27

Committee of the Boston Sons of Liberty to John Wilkes, June 6th, 1768, in Founding Families:
Digital Editions of the papers of the Winthrops and the Adamses, ed. C. James Taylor, vol. 1 (Boston:
Massachusetts Historical Society), accessed on June 14, 2017,
http://www.masshist.org/publications/apde2/view?id=ADMS-06-01-02-0070.

46

June 13th, Bernard agreed to allow the commissioners and their families to seek refuge at
Castle William in the Boston Harbor.28
For the remaining summer of 1768 violent mob demonstrations stopped. Colonial
attention turned to formal political organization. Town meetings, committee organizing,
and petition writing kept the momentum of the tensions churning. The colonists’ three
major concerns were to permanently relinquish the Board of Commissioners, remove the
Romney war ship from Boston Harbor, and make it so that “no man shall be govern’d
[sic] nor taxed but by himself or Representative legally and fairly chosen; and in which
he does not give his own consent.”29 This latter clause is the famous rally cry of the
American Revolution era. However, the other two claims are results from violating future
Fourth Amendment principles. The Romney was sent to Boston to enforce the
Townshend Acts and was then used as “an armed force in hostile manner.. without any
probable cause of seizure” to illegally seize the Liberty by “the Board of Commissioners
with design to over awe and terrify the Inhabitants of this Town into base compliances.”
A committee that formed to officially launch these complaints concluded that they have

28

Letters to the Ministry from Governor Bernard, General Gage, and Commodore Hood. And also
memorials to the Lords of the Treasury, from the Commissioners of the Customs. : With sundry letters and
papers annexed to the said memorials (Boston: Edes & Gill, in Queen-Street, 1769), in Evans Early
American Imprint Collection, accessed on June 20, 2017,
http://quod.lib.umich.edu/e/evans?type=bib&q1=Letters+to+the+Ministry+from+Governor+Bernard%2C+
General+Gage%2C+and+Commodore+Hood.+And+also+memorials+to+the+Lords+of+the+Treasury%2C
+from+the+Commissioners+of+the+Customs.+%3A+With+sundry+letters+and+papers+annexed+to+the+
said+memorials.&rgn1=title&op2=and&q2=&rgn2=title&op3=and&q3=&rgn3=title&Submit=Search.
29

A Report of the Record Commissioners of the City of Boston, containing the Boston Town
Records, 1758 to 1769 (Boston: Rockwell and Churchill City Printers No. 39 arch street, 1886), 254-258,
accessed on June 21, 2017,
https://ia802703.us.archive.org/14/items/recordsrelatingt16bost/recordsrelatingt16bost.pdf.

47

been “invaded with an armed force, Seizing, impressing the persons of our fellow
Subjects contrary to express Acts of Parliament.”30
As of July, Bernard did not see the need to ask for troops to be sent from England
to restore order in Boston. However, the commissioners thought otherwise and
considered all types of colonial political organization in Boston a threat. The first rumor
of British troops in Boston in the capacity to quell colonists’ aggression, was dispelled by
Bernard who said, “I have kept quite clear of the applying or sending for troops… and I
will not make any such Application unless they advise it.” Bernard was referring to the
council led by the Earl of Hillsborough. That council was to decide if the customs issues
were serious enough to send troops to America. They made their decision and by at least
September 12th Bernard sent a letter to a “Committee of the Boston Town Meeting” that
“his Majestys troops are to be expected in Boston.” By at least the end of September, 900
troops arrived in the Nantucket Harbor.31
The role search and seizure and customs issues had in Boston from 1761-1768 is
crucial to understanding how a new nation would devise laws to protect their citizens
against the threat of a powerful government. Otis certainly deserves credit for sparking
the discussion about abusive governmental power of writs of assistance. The way
individual liberty was treated in common colonial business practices must be given credit
as well. Overall, the most consequential act of abuse by British colonial officers was

30

John K. Alexander, Samuel Adams: America’s Revolutionary Politician (Lanham, MD:
Rowman and Litefield, 2002), 58.
31

Hancock’s Sloop “Liberty”, 258; Francis Bernard to a Committee of the Boston Town Meeting,
September 12 or 13, 1768, in The Papers of Francis Bernard, ed. Colin Nicolson, vol. 4 (Boston, MA:
Colonial Society of Massachusetts, 2015), 677; Oliver Morton Dickerson, Boston Under Military Rule
[1768-1769] as revealed in A Journal of the Times (Boston: Chapman & Grimes, 1936), 1, accessed on
June 28, 2017, https://babel.hathitrust.org/cgi/pt?id=mdp.39015008570163;view=1up;seq=21.

48

against Boston citizens’ shipping businesses. Without the abusive Townshend Acts,
Daniel Malcolm would not have become one of the most infamous smugglers in
American colonial history and sparked popular resistance. John Hancock’s Liberty also
would not have ignited a legal battle, argued by John Adams, that nearly killed two
British custom’s officers. Without the implementation of “taxation without
representation” rallying in the streets, British troops would not have been sent to the
colonies either. But most of all, common citizens like Malcolm and leaders of the Sons of
Liberty took this situation so seriously because they knew the fight for liberty was bigger
than the 1760s and their private property. The only way American colonists could own
their individual liberty, guaranteed to them by the prestigious English lawyers of the
eighteenth-century, was to set the bar higher than immediate success. The only option
colonists had was to rally around the common law right to individual liberty as a
universal protection from unreasonable searches and seizures without probable cause.

49

CHAPTER 3
1770-1791: HOW THE FOURTH AMENDMENT WAS ADOPTED
Richardson v Rex (1770)
History usually gives credit to the Boston Massacre as the first patriot deaths from
British hands. However, less than two weeks before the Boston Massacre, on February
22nd 1770, a young boy was shot and killed by Ebenezer Richardson. Richardson was a
known loyalist merchant who was commonly harassed by Boston patriots. When
Richardson refused to participate in a demonstration that was boycotting the consumption
of British goods, he was chased by a crowd of boys back to his home where they threw
stones and other debris at his house. According to witnesses, the group of boys broke
windows and pushed at Richardson’s door. In response, Richardson thrusted a shotgun
through a window at the crowd and fired a shot resulting in the death of an eleven-yearold boy. Boston patriots were outraged, calling for Richardson’s head. Two weeks later
the Boston Massacre shook the town even harder and Richardson’s chance for a fair trial
was minimal. Like Captain Preston in the Massacre case, no one was interested in

50

representing Richardson. Eventually, Josiah Quincy agreed to act as Richardson’s
counsel.1
While John Adams was a bystander in the case, he did takes notes. Adams was
intrigued enough by the case to include it in his personal papers. In his defense of
Richardson, Quincy cited seventeenth and eighteenth-century common law to argue that
Richardson’s offence should not result in more than manslaughter. Quincy’s first
common law reference was to Hale’s Pleas of the Crown. Hale’s treatise served as a
precedent to support the defense’s claim saying, “if A. comes to enter with force, and in
order thereunto shoots at his house, and B. the possessor, having other company in his
house, shoots and kills A. this is manslaughter in B.”2 Although the eleven-year-old
victim did not shoot a gun at Richardson’s home, the evidence that Richardson and his
family’s lives felt threatened supported the defenses’ claim enough to make the jury
consider a manslaughter charge. The second reference was to Sir Edward Coke’s
Semayne’s Case which famously grants
the house of every one to him as his castle and fortress, as well for his defence [sic] against injury
and violence as for his repose… if thieves come to a man’s house to rob him, or murder, and the
owner or his servants kill any of the thieves in defence [sic] of himself and his house, it is not
felony, and he shall lose nothing.3

The third reference Quincy used was from Volume 11 of the Coke’s Reports
stating that “if a Man is in his House, and he hears that others will come to his House to
beat him, he may call together his Friends & into his House to aid him in Safety of his

1

“Editorial Note”, Founding Families: Digital Editions of the Papers of the Winthrops and the
Adamses, ed. C. James Taylor (2017) Massachusetts Historical Society, accessed on July 11, 2017,
https://www.masshist.org/publications/apde2/view?id=ADMS-05-02-02-0010-0001-0001.
2

Hale, Pleas of the Crown, 445.

3

Semayne’s Case, (1604) 5 Co Rep 91.

51

Person.”4 Thus, Richardson v Rex was an example of a pre-revolutionary case in which a
patriot willingly defended a loyalist based on the common law and individual rights.
No one could have predicted the Boston Massacre. But, John Adams was pretty
close. Around February 26, Adams recorded the details of Christopher Seider’s funeral,
the boy whom Richardson killed. In Adams’s diary he noted the large crowd saying, “the
procession extended farther than can well be imagined.” Then he remarked, “This shewes
[sic] There are many more Lives to spend if wanted in the Service of their Country. It
Shewes [sic], too that the Faction is not yet expiring- that the Ardor of the People is not
to be quelled by the Slaughter of one Child and the Wounding of another.” 5 A week later
the Boston Massacre claimed the lives of five Boston citizens and the unofficial
beginning of the rebellion which culminated into the Revolutionary War. In response, the
colonists began developing committees to organize serious political opposition against
the British.
Committees of Correspondence (1772-73)
Before the Continental Congress gathered in 1774, a group of representatives
formed the Committees of Correspondence in each of the thirteen colonies. The
Massachusetts committee, formed in November 1772 in Boston, was the first and most
effective. Their effectiveness did not come from secrecy or use of force like the Sons of

4

Coke, The Reports vol. III, 186; Sir Edward Coke, The Reports of Sir Edward Coke, Knt. In
Thirteen Parts, vol. 6, ed. John Henry Thomas and John Farquhar Fraser (London: Joseph Butterworth and
Son, 43, Fleet Street; and J. Cooke, Ormond Quay, Dublin, 1826), 155, accessed on July 19, 2017,
https://books.google.com/books?id=lVYDAAAAQAAJ&printsec=frontcover&dq=Edward+coke+volume+
6&hl=en&sa=X&ved=0ahUKEwjMqNuc75XVAhWFGT4KHTy8BIYQ6AEIJDAA#v=onepage&q&f=fal
se.
5
“1770. Monday Feby. 26. Or Thereabouts.”, Founding Families, ed. Taylor, accessed on July 25,
2017, https://www.masshist.org/publications/apde2/view?&id=DJA01d471.

52

Liberty. Rather, the two groups worked like a well-oiled machine. The Sons used
underground brute tactics to undermine British control and the Committee organized for
unity amongst the colonies to demonstrate political opposition to the British. The Boston
Committees of Correspondence recorded a list of grievances and distributed them to
Massachusetts colonists. The third grievance read that “tax collectors are entrusted with
power too absolute and arbitrary”, and that “private premises are exposed to search.”6
Other committees soon formed around Massachusetts and throughout the next two years
each of the thirteen colonies formed committees, essentially aiming to replace their
provincial governments. Local organizing, such as town hall meetings and published
periodicals, were established ways of organizing. But, now the establishment of
committees in all colonies could share political issues across towns and state borders. In
turn, committees formed strong unity amongst colonial disproval of British activity.
Concerns of illegal search and seizure practices were part of these disapprovals, and
listed as grievances in towns all along the eastern seaboard.7
First Continental Congress Grievances (Fourth and Fourteenth Amendment)
In the summer of 1774 the First Continental Congress picked up the Committees
of Correspondence template and gathered in Philadelphia. Elected by the people of the
colonies and the Committees of Correspondence, the immediate cause for their meeting
was to oppose the Intolerable Acts. Supported by the popular Sons of Liberty, the overall

6

“The Committees of Correspondence: The Voice of Patriots,” Boston Tea Party Ships &
Museum, accessed on July 26, 2017, https://www.bostonteapartyship.com/committees-of-correspondence.
7

Laura K. Donohue, “The Original Fourth Amendment,” The University of Chicago Law Review
83, no. 3 (Summer 2016): 1263, accessed on July 26, 2017,
https://www.jstor.org/stable/pdf/43913852.pdf?refreqid=excelsior%3Aca9cdfcc3dc3efda4ccfdd1ae74c021
3.

53

common signifying goal of the congress was to show colonial authority to Britain. In late
October of that year the congress made two declarations regarding unreasonable searches
and general warrants which were read to the American people and sent to King George.
On October 21, the Congress “denounced the power of the Commissioners of Customs
‘to break open and enter houses without the authority of any civil magistrate founded on
legal information.’” Four days later the Congress expressed concern of excise practices in
Quebec as “’the horror of all free states [. . .] the most odious of taxes’ whereby ‘insolent’
excise-men would enter ‘houses the scenes of domestic peace and comfort and called the
castles of English subjects in the books of their law.”8
In another declaration, the representatives of Congress used their knowledge of
common law and English constitutional cases to support their grievances. On October
14th, the Congress declared that they were, “entitled to all their rights, liberties, and
immunities of free and natural-born subjects, within the realm of England”, and “that
their respective colonies are entitled to the common law of England… that these, his
Majesty’s colonies, are likewise entitled to all the immunities and privileges granted and
conformed to them by royal charters, or secured by their several codes of provincial
laws.” After proclaiming their natural liberties based upon English common law and
constitutional practices, the congress concluded their declaration by stating a series of
acts of passed under the current king, George III, which infringed upon those individual
rights. The first listed and most specific was:

8
Tracy Maclin and Julia Mirabella, review of The Fourth Amendment: Origins and Original
Meanings, 602-1791, Michigan Law Review 109, no. 6 (2011): 1067, accessed on July 25, 2017,
http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1152&context=mlr.

54

The several acts of Geo. III. ch. 15, and ch. 34.-5 Geo. III. ch.25.-6 Geo. ch. 52.-7 Geo.III. ch. 41
and ch. 46.-8 Geo. III. ch. 22. which impose duties for the purpose of raising a revenue in
America, extend the power of the admiralty courts beyond their ancient limits, deprive the
American subject of trial by jury, authorize the judges certificate to indemnify the prosecutor from
damages, that he might otherwise be liable to, requiring oppressive security from a claimant of
ships and goods seized, before he shall be allowed to defend his property, and are subversive of
American rights.9

Since the delegates from each of the thirteen colonies could agree on this
proclamation, support for some form of national regulation of search and seizure
protection seemed inevitable. The First Continental Congress based their specific
grievances on what their government was constitutionally supposed to provide them;
rights enumerated as English subjects. Thus, the delegate’s specific complaint about
unfair taxation resulting in violations of searching personal property became a critical
cause to revolt against the crown for American revolutionaries.
Before the Federal Constitution was ratified, each of the newly formed American
states ratified their own state constitutions. Seven of the thirteen new state constitutions
included an article that prohibited the use of general warrants, unreasonable searches and
seizures, a requirement of probable cause for a search or seizure, or the combination of
all three clauses. The Pennsylvania and Virginia Constitutions interpreted search and
seizure most accurately with regards to individual liberty.10 Another comprehensive
article that would relate to the future federal Fourth Amendment was written in 1779 by

9

“Declaration and Resolves of the First Continental Congress,” The Avalon Project, ed. Charles
C. Tansill (1927), in the Documents Illustrative of the Formation of the Union of the American States,
accessed on August 1, 2017, http://avalon.law.yale.edu/18th_century/resolves.asp.
10

Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and other
Organic Laws of the States and Territories now or heretofore forming the United States of America,
compiled and edited by Francis Newton Thorpe (Washington: Government Printing Office, 1909) Vol. V
New Jersey-Philippine Islands, p 3081, accessed on June 14th, 2019, https://oll.libertyfund.org/titles/2678;
For Virginia see Volume VII, p 3812 “Declaration of Rights.”

55

John Adams and drafted by the Massachusetts legislature the following year. Article 14
of the Massachusetts Constitution stated that:
Every subject has a right to be secure from all unreasonable searches, and seizures, of his person,
his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if
the cause or foundation of them be not previously supported by oath or affirmation; and if the
order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more
suspected persons, or to seize their property, be not accompanied with a special designation of the
persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and
with the formalities prescribed by the laws.11

Assuming that Adams intended for the articles of the Massachusetts Declaration
of Rights to be as strong as possible, he would have envisioned them to work together. If
that was the case then Article Ten of the Massachusetts Declaration of Rights would have
given Article Fourteen stronger protection. Article Ten states, amongst other things, that,
“Each individual of the society has a right to be protected by it in the enjoyment of his
life, liberty, and property, according to standing laws.” 12 The part of this Article giving
individuals the right to be protected of his property, “according to law” must be assumed
as: any law protecting one’s individual rights protects their private property. Adams is not
to fault for not writing it this way. Keeping natural rights and private protections separate
makes for an ideal new set of government standards. But, interpreting the text as a
creation to serve each other is also probable. Considering the value of each article’s
worth to the revolutionary society they were written in; newly formed constitutions
would not have shied away from adapting principles to preserve liberty.

11
Massachusetts Constitution of 1780, article XVI, article X, accessed on August 15, 2017,
https://malegislature.gov/Laws/Constitution.
12
Mass. Const. of 1780, art. XVI, art. X, accessed on August 15, 2017,
https://malegislature.gov/Laws/Constitution.

56

The Virginia Constitution also displayed similar articles, although not as specific
as the Pennsylvania ones.13 James Madison, a writer of the Virginia Constitution and the
future writer of the Federal Constitution, adopted articles describing citizens’ rights to
individual liberty. The first said, “all men are by nature equally free and independent and
have certain inherent rights.” Another article spoke of due process stating, “no person
shall be deprived of his life, liberty, or property without due process of law,” and, “to be
free from any governmental discrimination upon the basis of religious conviction, race,
color, sex or national religion…” Additionally, Madison penned a detailed search and
seizure right. Section Ten of the Virginia Bill of Rights outlawed general warrants,
whereby an officer or messenger may be commanded to search suspected places without evidence
of a fact committed, or to seize any person or persons not named, or whose offense is not
particularly described and supported by evidence, are grievous and oppressive, and ought not be
granted.

Once again, for constitutional interpretation’s sake, this clause would have needed
help determining what one thought was a “suspected place” and how an offense was
exactly “particularly described.”14
Adoption of the Fourth Amendment
By the late 1780s every state agreed about a federal provision banning general
warrants. Each state had their own separate constitutions prohibiting general warrants,
unreasonable searches and seizures, or the need for probable cause during a search or
seizure. However, when discussing rights for the federal Constitution there was no

13

Virginia Constitution of 1776, article I, https://avalon.law.yale.edu/18th_century/jeffcons.asp.

14

Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and other
Organic Laws of the States and Territories now or heretofore forming the United States of America,
compiled and edited by Francis Newton Thorpe (Washington: Government Printing Office, 1909). Vol. VII
Virginia-Wyoming-Index, p 3813-3814, accessed on June 14th, 2019, https://oll.libertyfund.org/titles/2680.

57

discussion about a federal provision for such purposes. In fact, there was little discussion
for a federal bill of rights at all. When the initial terms of the Constitution were circulated
to the states in 1787 no explicit mention of general warrants, unreasonable search and
seizure, or Bill of Rights was included.15
The future writer of the bill of Rights, James Madison, and his cohorts were more
concerned with federalism, structure, and power of governments.16 A letter written by
Richard Henry Lee, representative to the congress from Virginia, urged the need for a
federal bill of rights to accompany the forming federal Constitution. He claimed, amongst
other things, “That the Citizens shall not be exposed to unreasonable searches, seizure of
their persona, papers, or property.” Lee is also thought to be at least one of the minds
behind the Letters from the Federal Farmer.17
Lee was part of the group of politicians who were concerned about the federal
government’s power of the Constitution, known as Anti-Federalists. Led by John Adams,
the Anti-Federalists supported specific federal protections, including search and seizure
rights. Borrowed most likely from Adams’ Massachusetts provision, Anti-Federalists
called for a preface to an amendment banning “unreasonable searches and seizures.” The

15

Donahue, “The Original Fourth Amendment,” 1282-1283.

16

Clancy, 1029, accessed on March 5, 2018.

17
James Curtis Ballagh, The Letters of Richard Henry Lee, Vol. 2, New York: The MacMillan
Company, 1914, accessed on March 5, 2018, https://babel.hathitrust.org/cgi/pt?id=mdp.39015011801084;
Davies, “Recovering the Original Fourth”, 695, accessed on March 5, 2018.

58

influential Letters from the Federal Farmer, an Anti-Federalist pamphlet also propagated
Adams’ provision to stir support for federal provisions.18
Anti-Federalist support for a search and seizure clause was not just to ensure the
federal government would not abuse their power. The push was part of the larger
rejection of a federally controlled constitution. After the Anti-Federalists voiced their
opinion for an “unreasonable searches and seizures” clause, it was time for Federalists to
meet them with a draft for an amendment. The concern amongst Federalists was about
the inclusion of “general warrant” and “unreasonable searches and seizures,” which they
thought would weaken a strong central base. The Federalists started their own
propaganda faction, known as The Federalist, and distributed propaganda to garner
support for a strong central proclamation. At the end of 1787, the Anti-Federalists and
Federalists were at a bind.
Debates amongst states became much stronger and echoed pre-Revolutionary
Bostonian cries for liberty. Virginia led the charge in calling for a Bill of Rights and
general warrants with its former governor Patrick Henry being the most vocal supporter.
Thomas Jefferson, a lifetime adversary of Henry, called him “the greatest orator that ever
lived.” Henry began his rhetoric by denouncing the strength of federal officials in search
and seizure cases. He exclaimed:
“When these harpies are aided by excisemen, who may search, at any time, your houses, and most
secret recesses, will the people hear it? If you think so, you differ from me. Where I thought there
was a possibility of such mischiefs, I would grant power with a niggardly hand?19
18

Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Michigan Law Review 98,
no. 3 (1999): 695, accessed on March 5, 2018,
https://www.jstor.org/stable/pdf/1290314.pdf?refreqid=excelsior%3Af0080073d107e3fb2eb6b5b8ca2a611
a.
19
Jonathan Elliot, eds. The Debates in the Several State Conventions on the Adoption of the
Federal Constitutions Recommended by the General Convention at Philadelphia in 1787, vol. III (1827):
58.

59

Henry continued arguing for a search and seizure clause in a Bill of Rights saying:
They may, unless the general government be restrained by a bill of rights, or some similar
restriction, go into your cellars and rooms, and search, ransack, and measure, every thing [sic] you
eat, drink, and wear. They ought to be restrained within proper bounds.20

Henry specifically aligned with his hatred for general warrants, much like the 1760s
Bostonians of Malcolm and Hancock had. Henry contended that the delegates have not
made necessary adoptions to ensure individual rights.
I feel myself distressed because the necessity of securing our personal rights seems not to have
pervaded the minds of men; for many other valuable things are omitted: - for in- stance [sic],
general warrants, by which an officer may search sus-pected [sic] places, without evidence of the
commission of a fact, or seize any person without evidence of his crime, ought to be prohibited.21

The push for individual rights and search and seizure law was felt in New York as
well. In the Anti-Federalist periodical New York Journal, an article was authored by a
Son of Liberty on November 8, 1787. The authored railed against the current
constitutional proposition as a “preposterous newfangled system” with “a few curses
which will be entailed on the people of America.” One piece read:
Men of all ranks and conditions, subject to have their houses searched by officers, acting under the
sanction of general warrants, their private papers seized, and themselves dragged to prison, under
various pretences [sic], whenever the fear of their lordly masters shall suggest, that they are
plotting mischief against their arbitrary conduct.22

On January 2, 1788, Madison wrote a letter to a friend, George Eve, describing
the current state of his affairs. He had come to terms with the need for specific
amendments for the new constitution; a bill of rights. Madison said that the amendments
would “serve the double purpose of the minds of well-meaning opponents, and of

20

Elliot, The Debates, 448-449.

21

Elliot, The Debates, 588.

22
The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P.
Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan.
Charlottesville: University of Virginia Press, 2009.

60

providing additional guards in favour of liberty.” 23 Madison had already developed
language that gave the federal government enough power to govern. However, he knew
for the federal union to thrive, he had to cultivate a new set of principles that checked the
new federal government’s authority. On May 4, 1789, Madison announced to the House
of Representatives that he would present to them a list of amendments.
Madison’s first Fourth Amendment draft, presented in the spring of 1789, is as
follows:
“The rights of the people to be secured in their persons, their houses, their papers, and their other
property, from all unreasonable searches and seizures, shall not be violated by warrants issued
without probable cause, supported by oath or affirmation, or not particularly describing the places
to be searched, or the persons or things to be seized.”

On the surface this text looks fairly similar to the future text. However, as
Professor Laura K. Donohue points out, the comma after “person” gives people the rights
to be secure in their persons. For our sake, this rings the bell of an individual rights
clause. In these terms, the amendment is much more than just a protection against
unreasonable searches or a ban on general warrants. Because of “the people to be secured
in their persons,” an interpretation of the security of an individual to have such rights
must be considered in alignment with the rest of the amendment. Not much was changed
compared to the final draft of the Fourth Amendment. After two years being sent back
and forth amongst the states, Congress, and committees, the final draft was put into law
on December 15, 1791.24

23

The Papers of James Madison, edited by William T. Hutchinson, v. 1, (Chicago: University of
Chicago Press), 478, accessed on March 29, 2018, http://presspubs.uchicago.edu/founders/print_documents/v1ch14s48.html; 1 Annals of Congress 247 (May 4, 1789).
24
Laura K Donahue, “The Original Fourth Amendment,” The University of Chicago Law Review
83, no. 3 (Summer 2016): 1299-1305, accessed May 10, 2018,
http://www.jstor.org/stable/pdf/43913852.pdf?refreqid=excelsior%3A5540e98b7978503a30407e24d2ca46
98&loggedin=true.

61

In the ratifying era of the Fourth Amendment, the government considered what
rights citizens had to protect themselves against unlawful rule. An even tougher test
would be faced when the government had to consider how to guarantee those rights for
newly enfranchised citizens. In addition to the cultural and philosophical revolution
resulting in the Fourteenth Amendment and the end of slavery, a new era of constitutional
interpretation arrived that threatened states’ rights and the power of dual federalism. The
Fourteenth Amendment had the power to change the legal basis of the Bill of Rights,
overrule states in federal cases, and most of all, had the power to protect individuals more
than ever before. However, as most political and legal American history, it was not that
simple.

62

CHAPTER 4
1822-1868: PROTECTIONS AND GAURANTEES OF EQUAL INDIVIDUAL
LIBERTIES AND PRIVACY

The first three parts of this work introduced the significance of the Fourth
Amendment and how pre-Fourteenth Amendment ideals had a duty to uphold Fourth
Amendment rights that were intended to protect citizens against a powerful government.
The next section will focus on how the written Fourteenth Amendment law had
reasonable responsibility to uphold Fourth Amendment rights. The Fourteenth
Amendment is arguably the most important law for citizens past and present. Its values
include a naturalization clause that gave ex-slaves citizenship and an equal protection
clause which gave all naturalized citizens equal protection of laws. However, the
rudimentary importance for the Fourteenth Amendment is not written but is agreed upon
by human nature, the social contract. Amendments and court cases aside, the laws of
nature determine the power of written law. If a sovereign being gives up some natural
freedom, like abiding by laws, they gain protection, immunities, or opportunities in
return. This could easily extend to the Fourth Amendment. One gives up the natural right
to physical violence for the human right of protection of property.

63

More often than not it is the government that extends protections in return that the
people do not violate their law. In this case, the Fourteenth Amendment is a source of
protection both from the government and by the government. The British were to protect
American Colonists’ rights as British subjects. But the British government also
threatened those rights. Not identical to the British, but in similar ways, the Fourteenth
Amendment was passed to extend equal opportunity, immunity, and due process for new
citizens and their property protected by the government. It was and remains the
government’s role to protect and not abuse those rights. Thus, natural rights were given
up to be ruled by human law. As Justice David Davis put it in Ex Parte Milligan (1866),
“By the protection of the law of human rights are secured; withdraw that protection and
they are at the mercy of wicked rulers, or the clamor of an excited people.”1
How do we get to the Fourteenth Amendment?
A new law can only be passed if the opposition party is to give up certain rights.
One person cannot be given something without another losing it. Much like the social
contract, the foundation of the Fourteenth Amendment had everything to do with giving
up certain rights to gain others.2 In this case, and for search and seizure purposes, it was
stripping property rights from slaveholders. Chattel property rights were not checked
until the Civil War forced the hand of Congress to protect newly freed slaves. Also
affected by the Thirty-Ninth Congress were legal access to privileges and immunities and
equal protection of laws, which had to be given up by white Southerners so newly freed

1

Tastlitz, 242-244.

2

Earl M. Maltz, “Fourteenth Amendment Concepts in the Antebellum Era,” The American
Journal of Legal History 32, no. 4 (1988): 320, accessed on January 31, 2020,
https://www.jstor.org/stable/845741.

64

slaves could have them. The anti-slavery Republicans controlled a majority of the ThirtyNinth Congress and made the federal protection of newly enfranchised blacks their
legislative focal point. The years leading up to the Fourteenth Amendment started to
challenge the validation of individual rights that enforce protection of property and
possessions.
The outcome of the Civil War devastated the Southern economy. Cities,
businesses, and transportation hubs were burned by either General William Tecumseh
Sherman’s “March to the Sea” campaign, or by southerners’ own “scorched earth” policy
devised so that Sherman’s troops had nothing to use.3 However, one thing that the South
refused to part ways with, even more than slavery, was their honor. As historian Bertram
Wyatt Brown states, “at the heart of honor lies the evaluation of the public.” Brown
points out that honor in the Old South came before slavery, and that slavery was created
to preserve the South. Honor was not just Southern; in the North honor was found in
godly institutions and commercialism. Honor was developed in the South as men
embodying themselves having “power, prestige, and self-esteem and to immortalize these
acquisitions through their progeny.” Thus, slavery became so fitting with honor in the
South that “white man’s honor and black man’s slavery became in the public mind of the

3
Thom Basset, “Was the Burning of Columbia, S.C. a War Crime?,” NY Times, March 10, 2015,
accessed on May 4, 2020, https://opinionator.blogs.nytimes.com/2015/03/10/was-the-burning-of-columbias-c-a-war-crime/; Jeff Wilkinson, “Who really burned Columbia during the Civil War?,” The State, October
29, 2018, accessed on May 4, 2020, https://www.thestate.com/news/local/article220228240.html. Studies
continue to debate whether the Union or Confederate forces burned Columbia, S.C. Most sources agree that
a majority of the burning of the city was probably an accident. Sherman’s troops were converging on the
city and the Southern forces that were defending it knew they were outmatched. Thus, the Southern forces
burned the large amounts of cotton in the streets of the city. The city also contained warehouses of
ammunition and cannons. It was reported that on February 16th and 17th, when the cotton was burned, it was
very windy and the burning cotton spread easily throughout the city to highly flammable explosives in
warehouses. Sherman claims that by the time his troops entered the city it was fully on fire.

65

South practically indistinguishable.” So, when the discussion for all encompassing civil
liberty for freedmen arose, Southerner’s felt their honor was being stripped from them.
They were not wrong and they were not a backwards thinking people. Their property,
which had stimulated their lives, in the form of the persons, possessions, and movement
of slaves, were being taken from them. This is precisely why the Fourteenth Amendment
was so intensely personal: the law being made was in support for a portion of the
population, changing lives for the entire nation.4
Comity Clause, Samuel Hoar, Negro Seamen’s Act (1740)
An early example of Southerners holding true to their traditional ways of living
came in 1822. South Carolina passed the Negro Seamen’s Act (1740) which allowed state
officials to board ships in the Charleston Harbor in search of free black sailors. When
confronted, this law allowed the state to apprehend black sailors under their state law,
protected by their perception of the federal Comity Clause. The Comity Clause of Article
IV of the Federal Constitution states that “the Citizens of each State shall be entitled to all
privileges and Immunities of Citizens in the several States.”5 Essentially, when a free
citizen is in a state that they do not reside in, the laws of their residing state do not protect
them from the laws of the state they are visiting. However, the Comity Clause is not valid
when dealing with fundamental rights. One of those fundamental rights is the right of
security of persons, protected by the Fourth Amendment.

4
Bertram Wyatt Brown, Southern Honor: Ethics and Behavior in the Old South, 25th Anniversary
Edition (New York: Oxford University Press, 2007), 14-16.
5

U.S. Constitution, Article IV.

66

In 1844, in response to the Negro Seamen’s Act, Massachusetts sent
representative Samuel Hoar to South Carolina to dispute the act. He was banished from
the state almost immediately when he brought a suit to the South Carolina legislature. As
a free citizen of the United States, Samuel Hoar should have been protected by the
Immunities and Privileges Clause. Although nothing was unreasonable searched and
seized from Hoar, the “security of persons” clause of the Fourth Amendment was
threatened. The Hoar case was the beginning of a series of bills and rules that challenged
Southern ways. In turn, Southerners immediately responded in dissent which eventually
lead up to the ratification of the Fourteenth Amendment.6 In 1866, in debating the
ratification of the Fourteenth Amendment, the architect of the Fourteenth Amendment,
Ohio Representative John Bingham, referenced the Hoar case exclaiming that:
With the help of this Congress and of the American people [. . .] by simply adding an amendment
to the Constitution to operate on all the States of this Union alike, giving to Congress the power to
pass all laws necessary and proper to secure to all persons [. . .] and if the tribunals of South
Carolina will not respect the rights of citizens of Massachusetts under the Constitution of their
common country, I desire to see the Federal judiciary[. . .] assert those rights by solemn
judgement, inflicting upon the offenders such penalties as will compel a decent respect for this
guarantee to all citizens of every State.”7

Bingham’s goal was to ratify an amendment that bound the states to the US Constitution,
while allowing the states to maintain their autonomy. Thus, to “pass all laws necessary
and proper to secure all persons” he needed to convince his colleagues to pass an
amendment that incorporated rights that could “secure all persons.” Bingham’s final draft
protected “the privileges or immunities rights of citizens of the United States” and
included the incorporation of the Bill of Rights. Thus, his reference of Hoar was an
6

Michael Schoeppner, “Peculiar Quarantines: The Seamen Acts and Regulatory Authority in the
Antebellum South,” Law and History Review 31, no. 3 (August 2013): 583, accessed on November 4, 2018,
https://www.jstor.org/stable/pdf/23489503.pdf?refreqid=excelsior%3Adcf6feaea0b3d6f356cb0835b6f2c94
1.
7
Congressional Globe, 39th Congress, 1st Session, 158 (1866).

67

example of protecting the immunities and privileges of citizens when states deprived
citizens of their constitutional rights.8
Freedmen’s Bureau Act (1865)
It is commonly known that the Emancipation Proclamation turned the Civil War
from a sectional dispute into a cause for liberation. Thus, the Union’s new effect for
winning the war was the freedom for over three million African Americans. However, the
end of the War and the Thirteenth Amendment did not give blacks an equal chance or a
guarantee to liberty. Almost all were landless and had no means to gain property or an
opportunity at a decent job. To assist freedmen, new federal initiatives were brought forth
to repair the nation in the aftermath of conflict. However, the transition was not smooth.
First, the Bureau of Refugees, Freedmen, and Abandoned Lands, known as the
Freedmen’s Bureau, was born. Like the test case of Samuel Hoar and the Comity Clause,
relentless Southern discrimination and dissent of African American rights would cause
the initial goals of the Freedmen’s Bureau to fail. Then, the passing of the Civil Rights
Act of 1866, the first federal protection of civil rights in American history, ignited
Congress to consider particular rights as necessary for the equal protection to be
guaranteed for citizens.9
The Freedmen’s Bureau Act (1865) was the first official attempt to give blacks
civil rights. The proposed bill extended the financial life of the Freedman’s Bureau,

8

Congressional Globe, 39th Congress, 1st Session, 2542 (1866); Lash, Privileges and Immunities,

157.
9
Mark A. Graber, “Subtraction By Addition?: The Thirteenth and Fourteenth Amendments,”
Columbia Law Review 112, no. 7 (November 2012): 1539, accessed on June 15th, 2019,
https://www.jstor.org/stable/41708157.

68

which delegated land to newly freed blacks. To stimulate the work of the Freeman’s
Bureau, the Freedman’s Bureau Act allowed military force to be used in areas where
freedmen were denied aid. L.H. Rousseau, a representative from Kentucky and sponsor
of the bill outlined two specific clauses. Rousseau stated that the obligation of, “real and
personal property, and to have full and equal benefit of all laws and proceedings for the
security of person” was essential to the success of the Freedman’s Bureau. Rousseau
exclaimed to Congress how powerful a bill for freedmen like this would be because the
Constitution “forbids in the provisions in regard to judicial power, to trial by jury and the
security to person and property from unreasonable search” when it comes to freedmen.10
However, the shortcomings of the Freedmen’s Bureau was from a lack of political power
for the bill. The Bureau’s power relied on military force to enforce civil rights for
freedmen, rather than concentrate power on judicial force. Thus, the bill was vetoed by
President Andrew Johnson and did not receive enough votes in Congress to override.
Rousseau and other liberals’ voices were examples of what could be done. Fundamental
rights, such as protections from unlawful searches and seizures, could be protected by a
law guaranteeing security and equality for all people. Additionally, this is a prime
example of how the Constitution was starting to be viewed as not based on originalism.
Ideas for individual rights and nineteenth-century climates were changing the power of
guaranteed rights and laws for freedmen.11

10

Congressional Globe, 39th Congress, 1st Sessions, Appendix, 69 (1866).

11
Paul Moreno, “Racial Classifications and Reconstruction Legislation,” The Journal of Southern
History, 61, no. 2 (May 1995): 284, accessed on November 15th, 2018,
https://www.jstor.org/stable/2211578.

69

Privileges and Immunities and Civil Rights Act of 1866
By early 1865 Confederate supply lines were on its last legs and the Union Army
was in control of the Civil War. President Abraham Lincoln was confident the Union
would be secured. The Civil War ended a few months later. Lincoln won a second term
as President of the United States and on March 4th, 1865 gave his Second Presidential
Inaugural Address. Amongst other things, his address was a positive notation to the
future of the United States.12 The day after Lincoln’s Address, the US Senators
responsible for enacting the Civil Rights Act in 1866, convened in Washington DC for
the first time. The Thirty-Ninth Congress met to discuss the aftermath of the pending end
of the war. Their deliberations were about how the freedom of over one million
constitutionally backed emancipated slaves would be protected. Their biggest obstacle
and goal were to combat “Black Codes” enacted by Southern state legislatures, which
enforced newly freed slaves to be subjected under the authority of state laws. The Civil
Rights Act that Congress drew up to contest Black Codes, amongst other things,
granted citizenship to all persons born in the United States.. as enjoyed by white citizens.. to make
a enforce contracts, to sue, be parties, give evidence, to inherit, purchase, lease, sell, hold, and
covey real and personal property, and to full and equal benefit of all laws and proceedings for
security of person and property.13

In addition, a Privileges or Immunities Clause was introduced by the Thirty-Ninth
Congress prior to the Civil Rights Act. A Privileges and Immunities Clause already
existed in Article IV of the Constitution reading, “the Citizens of each State shall be
entitled to all Privileges and Immunities in the several States.” However, this

12

Abraham Lincoln, Second Presidential Inaugural Address, March 4th, 1865,
https://cdn.loc.gov/service/mss/mal/436/4361300/4361300.pdf.
13

Congressional Globe, 39th Congress, 14 Stat. 27 (Apr. 9, 1866).

70

Revolutionary War Era clause left open legal interpretation in Reconstruction America.
There was never a definition of specific “privileges and immunities” that citizens were
protected from or guaranteed. Also, it was not specific whether a citizen from one state
enjoyed the same privileges and immunities as a citizen from another state.14
The lack of distinction between the Article IV clause and the Fourteenth
Amendment Clause allowed cases such as Dred Scott and Slaughterhouse to slip through
the Supreme Court. Right before the controversial Slaughterhouse Case was decided,
John Bingham, the writer of the Fourteenth Amendment, attempted to define the
amendment’s Privileges or Immunities Clause:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth
amendment of the Constitution may be more fully understood, permit me to say that the privileges
and immunities of the citizens of the United States, as contradistinguished of a State, are chiefly
defined in the first eight amendments to the Constitution of the United States.15

Coinciding with the Civil Rights Act, the Privileges or Immunities Clause
introduced by Bingham guaranteed that “no State shall make or enforce and law which
shall abridge the privileges or immunities of the citizens of the United States.” Most
scholars argue that the Privileges or Immunities Clause was meant to settle the Comity
Clause debate regarding emancipated blacks. The Comity Clause assured citizens
privileges and immunities “of each state.. in the several states.” Thus, Privileges or
Immunities Clause was meant to rectify the states that ignored the Comity Clause. The
southern states that denied the Comity Clause argued that blacks were not citizens and
thus were not entitled to the clause’s benefits. Thus, the Privileges or Immunities Clause

14

U.S. Const. art. IV.

15
Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American
Citizenship (Cambridge: Cambridge University Press, 2014): 249.

71

and Comity Clause worked off each other to protect and guarantee rights for citizens in
every state. Congress’s final task was to enact law providing citizenship for these clauses
to be enforced.16
Ultimately, Congress did not include the clause because they believed it was not
needed. The importance of this is that this clause laid the groundwork for a pivotal part of
the Fourteenth Amendment. When the clause was finally included in the new Fourteenth
Amendment, Congress had to debate exactly what rights were protected by “privileges
and immunities.” Would natural rights, such as property protected? Or was positive law
like state rights and the Bill of Rights the main focus?17
Drafting of the Fourteenth Amendment
On May 23rd, 1866 the Committee of Fifteen, a bipartisan group of
representatives responsible for leading the legislation on Reconstruction, announced to
Congress their draft of a new amendment. Section One of the draft read that:
“No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person life, liberty, or property,
without due process of law; nor deny any person within its jurisdiction the equal protection of the
laws.”

Later, a citizenship clause would precede the Privileges and Immunities Clause because
until then the only persons defined by the Constitution as citizens were the President and
Senators. In describing exact “privileges and immunities” that states cannot abridge from
citizens, Senator Jacob Howard was perplexed that the amendment didn’t initially specify

16

Philip Hamburger, “Privileges or Immunities,” Northwestern University Law Review 105, no. 1
(2011): 61-63, accessed on September 1, 2019,
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1181&context=nulr.
17
Kurt T. Lash, “The Origins of the Privileges or Immunities Clause, Part II: John Bingham and
the Second Draft of the Fourteenth Amendment,” Georgetown Law Journal 99, no. 329 (2011): 369,
accessed on November 23rd, 2018, http://georgetown.lawreviewnetwork.com/files/pdf/99-2/Lash.pdf.

72

a guarantee to the Bill of Rights. Howard echoed Bingham’s concerns saying that,
“whatever they may be.. for they are not and cannot be fully defined- to these should be
added the personal rights guaranteed by the first eight amendments of the Constitution.”18
Howard importantly pointed out that there was no power granted in the Constitution to
carry out these powers. They just simply existed for persons and courts to judge upon. A
citizen had guaranteed power to use these privileges and immunities in everyday life, but
a sovereign government entity held the higher hand. Additionally, since the Bill of Rights
was not specified, states could determine the power the Bill of Rights had in their
jurisdiction.
The Fourteenth Amendment would pass in Congress with a sizable vote margin;
75 percent in the Senate and 79 percent House of Representatives. Initially Southern
states rejected the Amendment because it reduced their power. But legal pressure was
being mounted against Southern states. In one instance, the Freedmen’s Bureau was
bringing a suit against the state of Mississippi under the Civil Rights Act “against local
officers for infringing the freedmen’s right to bear arms and the right against
unreasonable search and seizure.” Northern Congressmen were reluctant to give power
back to Southern states. Thus, Congress resolved upon a Military Bill which divided the
South in to five sections with military tribunals running state courts. Once Southern states
wrote a constitution aligning with federal laws the states were given their power back.
This deal was enough to compel Southern states to ratify the Fourteenth Amendment. The

18

Congressional Globe, 39th Congress, 1st Session, 27, 65-66 (May 23, 1866).

73

Fourteenth Amendment only momentarily protected the Fourth Amendment from state
infringement.19
Ku Klux Klan Trials (1871)
Following the drafting of the Fourteenth Amendment, the Ku Klux Klan struck
fear into, and demoralized the liberty of, blacks across the South. Since the majority of
southern state authority let the Klan’s violent harassment to ensue, the Forty-First
Congress implemented a series of bills and court cases to curtail Klan aggression. The
Civil Rights Act of 1871, often referred to as the Ku Klux Klan Act, was passed in
response to white nationalists’ surge to dehumanize blacks across the South. This act,
along with the Enforcement Act of 1870, were immediately used in a federal trial known
as the South Carolina Ku Klux Klan Trials (1871). This was the first true test of the
strength of the Fourteenth Amendment and whether the court would side with freemen in
protecting their civil and personal liberties.20
The trial was more about civil rights precedent than getting convictions for the
prosecution. The larger picture was about whether the Enforcement Act condemned
conspiracies and the Civil Rights Act and Fourteenth Amendment protected political and
civil rights. In one of the counts against the Klan, the court could affirm that the
Fourteenth Amendment, in this case the right to bear arms and the safeguarding illegal
search and seizures, protected individuals when the state failed to. The prosecution plead
that Klansmen broke down doors of homes and places of business to raid firearms and
19

Tazlitz, 255-256; Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to
Bear Arms, 1866-1876 (Westport, CT: Praeger Publishers, 1998), 59.
20
Paul J Gardner, “Private Enforcement of Constitutional Guarantees in the Ku Klux Klan Act of
1871,” Constitutional Studies 1, no. 2 (2016): 82, accessed on January 13th, 2018,
https://muse.jhu.edu/article/648787/pdf.

74

personal belongings of freed blacks. The defense’s rebuttal was that it was the state’s
responsibility to protect individual rights, thus a federal court could not prosecute what
the state would rule on. District Attorney David T. Corbin pointed out that in this case the
federal government was not trying to punish the state by not allowing them to rule on a
state case. He pointed out that Congress, in empowering the use of the Fourteenth
Amendment, would punish individuals of a state, not the state itself, who conspired to
deny citizens their rights. Unsurprisingly, the South Carolina State Court could not come
to a majority decision on the case, remaining that a ruling in favor of the prosecution
over-reached a federal constitutional threshold. Their reasoning that Klansmen could not
be indicted under the Fourth Amendment was that search and seizure rights “preexisted
the Constitution as a part of common law” and that “the Fourth Amendment did not
confer a right but acted as a restriction on the United States.” The court rejected that the
Fourteenth Amendment turned the Bill of Rights into law enforceable upon states. Thus,
the case was moved to the Supreme Court.21
In the Supreme Court, pre-trials once again squashed the efforts of the
government attorneys to bring Klansmen to justice. It all came down to how much
presence the court decided the Fourteenth Amendment had in cases using the Bill of
Rights. US Circuit Judge Hugh Lennox Bond was torn over the proceedings. He wanted
to see the Klansmen brought to justice but did not want to ostracize himself politically.
When he rejected the cases, he chose not to write a review to avoid scrutiny of his
opinion. The only Klansmen that were prosecuted were charged with conspiracy crimes

21
Lou Faulkner Williams, The Great South Carolina Ku Klux Klan Trials 1871-1872 (Athens,
GA: University of Georgia Press, 1996), 66-73.

75

and violation of the Fifteenth Amendment. Although no Klansmen were brought to
justice for violating the Fourth and Fourteenth Amendments, the cases brought light to
the possibility of the using the Fourteenth Amendment to safeguard the Fourth
Amendment. The fact that a U.S District Attorney strongly petitioned the Supreme Court
to interpret the Fourteenth Amendment as a clause to enforce individual rights that states
could not abridge points to a positive notion of justice. However, Judge Bond’s
indecision to prosecute appeased the South and prevented any conflict that could have
provoked states’ rights leaders.22
The Ku Klux Klan trails was a precursor to how much the judicial system
struggled to empower the Fourteenth Amendment, even with all the responsibility it held.
The refusal of the court to hear the constitutionally relevant parts of the Ku Klux Klan
trials can certainly not be forgiven or glossed over. In its infant age, interpreting the
power the Fourteenth Amendment had was difficult. In not ruling in a decision in state
cases, courts did not ostracize themselves from state legislatures. However, their
discussions about the powers the Fourteenth Amendment could have enumerated had
precedent impact. By not hearing the case the court did not have to make the tough
decision in the middle of the troubling Reconstruction Era. It would not be long before
the court was forced to make that tough decision. In the Slaughterhouse Cases of 1873
the US Supreme Court essentially killed the power the Fourteenth Amendment had in
guaranteeing the privileges and immunities in state cases.23

22

Williams, Klan Trials, 75-76.

23
Paul Finkelman, “Original Intent and the Fourteenth Amendment: Into the Black Hole of
Constitutional Law,” Chicago-Kent Law Review 89, no. 3 (June 2014): 1023, accessed on January 27th,
2019, https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4048&context=cklawreview.

76

Slaughterhouse (1873), Civil Rights, end to Reconstruction
In the Slaughterhouse Cases (1873), the Louisiana Legislature faced the question
of whether they could exclude all butchers except the Crescent Livestock and Landing
Company from operating in New Orleans. In return for these privileges, the state would
be returned an investment percentage of the company. All other butchers were enraged
and believed their privileges and immunities were being threatened. Meanwhile, the state
of Louisiana believed their state sovereignty allowed them to work around any federal
power which they believed to be unconstitutional and overreaching.24 The Privileges and
Immunities Clause of the Fourteenth Amendment says that “no state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States… nor deny to any person within its jurisdiction the equal protection of the laws.”25
Thus, under this law, did the clause protect the state by stating that their “privileges and
immunities” were being provided for under a working condition? Or were the individual
butchers being denied equal protections of the law?
The Supreme Court gave their 5-4 decision in favor of the plaintiff, arguing that
the immunities and privileges clause of the amendment was meant to only require states
to guarantee equal rights of states. Importantly, the court “did not guarantee that all
citizens, regardless of race, should receive equal economic privileges by state,” and
decided that “any rights guaranteed by the Privileges and Immunities Clause were limited
to areas controlled by the federal government.”26 As historians have pointed out, the
24

William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine
(Cambridge: Harvard University Press, 1988), 155-156.
25

U.S. Const. amend. XIV, sec. 1.

26

“Slaughter-House Cases.” Oyez. Accessed January 28, 2019. https://www.oyez.org/cases/18501900/83us36

77

decision was considered a conundrum. The Ulysses S. Grant administration took an
abolitionist stance and appointed a Republican leaning Supreme Court. However, as of
1873, the support for the Northern Republicans were waning as more Southern
Democrats gained seats in Congress and jobs in federal departments. Local periodicals
and public displays of discontent for Reconstruction started to gain momentum in the
years leading up to Slaughterhouse.27
Other historians argue that the Court was taking advantage of using a non-white
case to downplay the power of the Fourteenth Amendment, while not enraging the
Northern republicans who were in favor for getting black citizens more access to
individual rights. Although the court supported moderate Republican Reconstruction, by
this time they were reasoning with a strong resentment among northerners about the
Republican Reconstruction crusade. A new Civil Rights Act, led by Charles Sumner, was
being voted on at the time and passage of this act could further divide and extend any
compromise to end Reconstruction. One more reason could be similar to that of the Klan
trials case; the Court thought that an overpowering Fourteenth Amendment would
threaten the tradition of American federalism.28
Civil Rights Act of 1875, Civil Rights Cases of 1883
The Slaughter House Cases was the Supreme Court’s first major test in
interpreting the Fourteenth Amendment. By this time government circles were aware how
much power the Fourteenth Amendment encompassed. This included the privileges and

27

Foner, Reconstruction, 524,528.

28
Michael A. Ross, “Justice Miller’s Reconstruction: The Slaughter-House Cases, Health Codes,
and Civil Rights in New Orleans, 1861-1873,” The Journal of Southern History 64, no. 4 (Nov. 1998): 651652, accessed on January 27, 2019, https://www.jstor.org/stable/2587513.

78

immunities clause, which was unofficially to be incorporated in some of the Bill of
Rights, including the Fourth Amendment. But, because there was no “official”
incorporation, a case like Slaughterhouse could be deemed as an example of “a product
of the era.” Since the ratification of the Fourteenth Amendment, the construction of how
states and the federal government approached the power of individual rights was not
heavily tested. Now that the constitutional test failed to interpret the amendment, the
Republican stance would get more intense.29
Charles Sumner’s new Civil Rights Act found its way to pass the Senate in 1875
with a vote of 38 to 26, perhaps out of respect for the late senator. The Act was
progressive stating:
That all persons within the jurisdiction of the United States shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges of inns, public
conveyances on land or water, theaters, and other places of public amusement; subject only to the
conditions and limitations established by law, and applicable alike to citizens of every race and
color, regardless of any previous condition of servitude.30

Although the passing of the act was a positive step for anti-slavery Republicans, they
were losing control of the House of Representatives for the first time since before the
Civil War, effectively ending Reconstruction.31
Eight years later, amongst a Southern white sympathetic Congress, the Civil
Rights Act was tested. Four cases were brought to the Supreme Court by black citizens
claiming their civil rights were being violated. In these cases, black men were denied

29

Lash, Fourteenth Amendment and Privileges and Immunities, 232.

30

Civil Rights Act of 1875, US Statutes at Large 18 (1875).

31
Primus, Richard A. "The Riddle of Hiram Revels." Harvard Law Review 119, no. 6 (2006):
1718, accessed on September 5, 2019, http://www.jstor.org/stable/4093530.

79

admission to public places such as inns, restaurants, trains, and theatres. The court
declared that:
“the Fourteenth Amendment is prohibitory upon the states only, and the legislation authorized to
be adopted by Congress for enforcing it is not direct legislation on the matters respecting which
the states are prohibited from making or enforcing certain laws, or doing certain acts, but is
corrective legislation, such as may be necessary or proper for counteracting and redressing the
effects of such laws or acts.”32

The Court continued the recent trend of preserving a peaceful end to Reconstruction,
which had to include a united nation, rather than consider the broad scope of the
Fourteenth Amendment and how its guaranteeing clauses affected other amendments.
New civil rights legislation would not be passed for another eighty-two years.
In the two decades after the passing of the Fourteenth Amendment, the Supreme
Court remained silent about how citizens of all colors could be protected by the
amendment. They also had not judged on a case involving how the Fourth Amendment
would be ruled if a state was involved in the case. Certainly, states’ rights supporters and
racism played a part in swaying Washington to ignore the all-encompassing Fourteenth
Amendment. It seemed like things would become stagnant or less inclusive before
progressive. Inclusion of the Fourth Amendment in cases in which the Fourteenth
Amendment had jurisdiction should have trumped Black Codes and Jim Crow racial
discrimination. The first major steps to these inclusions would come in cases that did not
involve African American involvement. However, the transgressions of the nineteenthcentury against blacks would not be forgotten. By the time the Supreme Court started to
set the record straight on Fourth and Fourteenth Amendment jurisprudence, justices

32
"Supreme Court of the United States. The United States v. Murray Stanley. Same v. Michael
Ryan. Same v. Samuel Nichols. Same v. Samuel D. Singleton. Robinson v. Memphis and Charleston
Railroad Co." The American Law Register (1852-1891) 31, no. 12 (1883): 790-807. doi:10.2307/3304580.

80

would rely on the evidentiary transgressions suffered by blacks in the nineteenth-century.
It would prove to help the cause of all Americans in gaining the guaranteed rights of
personal property they deserved.

81

CHAPTER 5
THE FOURTH AMENDMENT REVISITED IN THE US SUPREME COURT: BOYD
AND TWENTIETH-CENTURY CIVIL RIGHTS
Boyd v US (1886)
Thirteen years after the Civil Rights Act of 1873 was deemed unconstitutional,
the Supreme Court heard the case of Boyd v United States (1886). Boyd would become
the first landmark federal case that challenged the authority of the Fourth Amendment.
The context of the case are as follows. Boyd was being forced by a New York district
court to hand over his private papers and books. Upon the forced submission it was
revealed that the taxes on the invoices of glass plates in Boyd’s possession were being
investigated for fraud. Boyd refused to hand over his private effects, saying no evidence
could be compelled from the claimants to justifiably seize the property. The district court
seized it anyway and Boyd was charged with tax fraud. Boyd appealed to the Supreme
Court claiming his Fifth Amendment protection against self-incrimination was violated.1
The Supreme Court unequivocally ruled that the invoices forced over by the
district court self-incriminated Boyd, violating the Fifth Amendment. However, Supreme
Court Justice Joseph Bradley dove deeper into the case, arguing that the forcible

1

Boyd v United States, 116 US 630 (1886).

82

admission of Boyd’s private papers had no reasonable cause behind it. He said
that the Fourth and Fifth Amendments “throw great light on each other” because
“unreasonable searches and seizures” is often used to “compel a man to give evidence
against himself.” Bradley continued about claimants using this method saying, “it may be
that it is the most obnoxious thing in the mildest and least repulsive form; but
unconstitutional practices get their first footing in that way. This can only be obviated by
adhering to the rule that constitutional provisions for the security of person and property
should be liberally construed.”1 Essentially, Bradley was setting a standard for a strong
liberal front to federal constitutionalism. Even if his goal was not to set this standard of a
wide envelope of constitutional jurisprudence, Boyd became the benchmark case for
Fourth Amendment jurisprudence to lean on for the next sixty years.2
Boyd was also a landmark win for due process. As laid out in this work until
Boyd, the federal government had little to no interest in regulating search and seizure law.
However, in Bradley’s ruling, he laid out a defense of the Fourth Amendment that
affected the search and seizure clause, previously untried in federal courts. He claimed
that a search and seizure compelling a defendant to reveal evidence that could incriminate
them, violated the Fourth Amendment. In Bradley’s reasoning, he argued that the
admission of evidence established a seizure that was unreasonable. Once Bradley ruled
that the invoices that incriminated Boyd were unconstitutional, he excluded them from

1

Boyd.

2

Sklansky, “Fourth Amendment and Common Law,” 1766.

83

testimony creating an exclusionary rule that would be strengthened by Weeks v US a
number of years later.3
As Bradley extended the scope of the Fourth Amendment, his opinion also
strengthened the Fourteenth Amendment’s range. After laying down his opinion, Bradley
concluded that “the principles laid down in this opinion affect the very essence of
constitutional liberty and security.” His proclamation that the Constitution applies to “all
invasions on the part of the government,” and “the sanctity of a man’s home and the
privacies of life”, echoed fundamental liberties fought for by the framers of the US
Constitution.4 This protection of constitutionalism invoked a reference to the Founders
about their inherent discredit in governmental power of search and seizures. Although
Bradley’s invocation of the founder’s principles of liberty were used, his conclusion was
more about laying the framework for a new understanding of Fourth Amendment law.
For the first time since the ratification of the Fourteenth Amendment, the Fourth
Amendment was viewed as a law that required historical evidence to interpret what the
words could mean in the current era. Bradley concluded that the invasion of Boyd’s
personal property and security equaled the invasion of his liberty. The Fourth
Amendment was not being violated in this case regarding the breaking down of doors or
rummaging through desks and drawers. Rather, the Fourth Amendment was being
extended based on one’s individual rights as a private citizen. Justice Bradley proclaimed
that:

3

Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Michigan Law Review, 98,
(1998): 727-728, http://dx.doi.org/10.2139/ssrn.220868; accessed on April 16th, 2019.
4

Boyd v United States, 116 US 630 (1886).

84

It is the invasion of his indefeasible right of personal security, personal liberty and private
property [. . .] and any forcible and compulsory extortion of a man’s own testimony or of his
private papers to be used as evidence to convict him of crime or to forfeit his goods, is in the
condemnation of that judgment.

Boyd began the expansion of interpreting laws that were encouraged to be judged
together. In doing this, the Fourth and the Fourteenth Amendments would become
stronger along with the constitutional rights of citizens.5
Weeks v US (1914) and Warrantless Searches
Boyd was certainly important in revolutionizing the rights a victim of
unreasonable searches and seizures had. However, Boyd said nothing about the limits a
warrantless officer had in conducting a search or seizure. In 1911, federal marshals
arrested business operators in New York for alleged customs fraud and seized their
papers without a warrant. The operators challenged the seizure of their papers and filed a
motion for them to be returned before the trial. The federal court agreed with the
defendants and ordered the papers returned. After District Attorney Henry A. Wise
refused the court’s order, the court held him in contempt. A back and forth exchange
about whether the writ of error against Wise was lawful ensued. Chief Justice Edward
Douglass White gave in saying “no conceivable constitutional right of the district
attorney arose or could have been involved in committing him for contempt for refusing
to obey the order of the court.” Essentially, nothing held water constitutionally that could
hold Wise in contempt and thus the writ of error was dismissed. 6

5

Boyd v United States, 116 US 630 (1886).

6
Davies, “Recovering the Original Fourth Amendment”, 729; Henry A. Wise, Plff. In Err., v.
Lawrence H. Mills et al. 220 US 549 (1911).

85

Justices were rightfully startled of the loophole. The “security equals liberty test”
failed in this instance. If due process and constitutionalism could protect officers of the
court from being held in contempt, then its fundamental laws should defend against
illegally seized evidence as well. The Supreme Court got their chance to correct this
paradox in 1914 in Weeks v US. In 1911, Fremont Weeks was arrested for illegally
sending lottery tickets through the mail. To prove his guilt, state and federal officials, on
separate accounts, entered Weeks’ home without a warrant and seized compelling papers.
Weeks filed suit to regain his possessions, arguing that since they were seized illegally,
they could not be used to convict him in court. Associate Justice William R. Day decided
in favor of Weeks on fundamental grounds that the officer’s intrusion of Weeks’ property
was without a warrant and unreasonable. Thus, the evidence gained from that intrusion
was void.7
Day’s opinion echoed the liberal view of constitutional philosophy that had
similarly been considered in Boyd. His argument about the Fourth Amendment’s
“intentions” and “extensions” brought attention to the idea that the Fourth Amendment’s
boundaries were expandable. Citing Boyd, Day exclaimed that the Fourth Amendment
“was intended to secure the citizen in person and property against unlawful invasion of the
sanctity of his home by the officers of the law, acting under legislative or judicial sanction” and
the Fourth Amendment’s intention “equally extended to the action of the government and officers
of the law acting under it.”8

Setting precedent that the government or its officers were not immune when violating
Fourth Amendment protections was a relatively new revelation. Although this concept
was addressed in Boyd, no precedent existed. This concept would turn into a critical legal

7

Weeks v United States 232 US 383 (1914).

8

Weeks.

86

innovation, known as the “exclusionary rule.” The exclusionary rule prohibits the
admission of any evidence that was gained during a search that violated the Fourth
Amendment. The exclusionary rule, enacted as a legal remedy, was only applicable to
federal cases like Weeks. It would not be for another fifty years that the exclusionary rule
would be extended to the states. However, compared to where Fourth Amendment
protections came from, this was a big step forward.9
Wolf v Colorado: The Last Straw
In the process interpreting a developed Fourth Amendment, a case came to the
court in 1949. For the first time, the defendant attempted to apply the Fourteenth
Amendment’s Due Process Clause to the Fourth Amendment. In Wolf v. Colorado the
defendant, Julius A. Wolf, was convicted of illegal abortion practices in Colorado under
whose jurisdiction he was tried. The defendant claimed that state officials obtained
evidence that would have been inadmissible if it were in federal court under the Fourth
Amendment. However, as of 1949, state courts were sovereign from the jurisdiction of
federal courts, having the ability to use illegally seized evidence. Thus, the evidence
presented to the Colorado court was being viewed under Colorado law. Furthermore, the
Colorado court also claimed that the exclusionary rule originated in Weeks was only valid
in federal courts. In a 6-3 decision, the Supreme Court decided that the defendant’s claim
that the Fourteenth Amendment’s Due Process Clause, which should legally validate the

9

Thomas K. Clancy, “The Fourth Amendment’s Exclusionary Rule as a Constitutional Right,”
Ohio State Journal of Criminal Law 10, no. 1 (2013): 358, accessed May 20th, 2019,
http://moritzlaw.osu.edu/students/groups/osjcl/files/2013/03/2.-Clancy.pdf; Richard M. Re, “The Due
Process Exclusionary Rule,” Harvard Law Review 127, no. 1885 (2014): 1893, accessed May 20th, 2019,
http://eds.a.ebscohost.com/eds/pdfviewer/pdfviewer?sid=87d83ad9-8127-4138-858f149bfd67580e%40sessionmgr4005&vid=4&hid=4211.

87

Fourth Amendment, including the exclusionary rule, in state courts, did not hold water.
The charge was upheld.10
Civil Rights, Brennan, and The Living Constitution
As of 1949 there was not a single federal court case that could explicitly claim
that a citizen’s Fourteenth Amendment rights, privileges, and immunities supported their
constitutional Fourth Amendment rights. It is clear, however, that the Supreme Court was
willing to comply with individual rights in relationship to the rights against unreasonable
searches and seizures. However, not everyone was quite convinced. A glimpse at
American society outside the courtroom can provide some answers as to why the court
was conflicted about these rights. More importantly, one cannot ignore the beginning of
Justice William J. Brennan’s work on the Supreme Court in 1954 as a factor in the rise of
the protection of individual rights. Brennan’s work on the Supreme Court and the rise of
civil movements beginning in the 1950s influenced a new interpretation of the Fourth and
Fourteenth Amendment.
In 1954 when Brennan took his seat on the Supreme Court the polity of American
society was complex. In the early 1950s if one traveled south of the Mason-Dixon Line it
was mostly impossible to miss the racial tension between black and whites that resided in
the South.11 The equality of African-American rights was the main theme of the midtwentieth-century civil rights movements but other activists mobilized as well. AsianAmericans were discriminated against and in turn mobilized for the cause of equal rights

10

Wolf v. Colorado, 338 US 25 (1949).

11
Leon F. Litwack, “Fight the Power! The Legacy of the Civil Rights Movement,” The Journal of
Southern History 75, no. 1 (February 2008): 4, accessed June 6, 2019,
http://www.jstor.org/stable/pdf/27650400.pdf.

88

on the West coast.12 Student movements challenging authority against the Vietnam War
also gained prominence in the 1960s.13 The essence of American politics adapted to these
new influential groups by passing new legislation and promising change in the favor of
progress. Amongst student and ethnic uprisings, the Supreme Court had to question
whether they would adapt to the changing society around them or keep their opinions
within the walls of conservatism that for so long ruled the land.
Supreme Court Justice William J. Brennan
Justice Brennan produced 1,360 opinions on the court on a tenure that lasted
thirty-four years. Most of the famous cases he wrote opinions for had to do with First
Amendment rights.14 In a simple search about Brennan nothing appears exemplary about
his involvement in Fourth Amendment cases. The underlying reason for this is because
Brennan was a champion of virtually all individual rights. In the following Supreme
Court cases of the 1960s Brennan wrote opinions, dissents, or agreed with opinions that
connected the power of individual rights with the values of Fourth Amendment
protections.

12

Robert S. Chang, “Toward an Asian-American Legal Scholarship: Critical Race Theory, PostStructuralism, and Narrative Space,” California Law Review 81, no. 5 (October 1993): 1251, accessed June
6, 2019, http://www.jstor.org/stable/pdf/3480919.pdf.
13
Richard M. Burgess and C. Richard Hofstetter, “The ‘Student Movement’: Ideology and
Reality,” Midwest Journal of Political Science 14, no. 4 (November 1971): 687-688, accessed June 6, 2019,
http://www.jstor.org/stable/pdf/2110048.pdf.
14

Gerard E. Lynch, “William J. Brennan, Jr., American,” Columbia Law Review 97, no. 6
(October 1997): 1603, accessed June 7th, 2019, https://www.jstor.org/stable/1123386; See: Baker v. Carr,
Craig v. Boren, Goldberg v. Kelly, New York Times Co. v. Sullivan.

89

Mapp v Ohio (1961)
It is impossible to discuss the protection of citizens under the Fourth Amendment
supported by the Fourteenth Amendment without referencing the landmark case Mapp v.
Ohio (1961). Although Brennan did not give the opinion to the court he did rule in the
majority of the opinion. In this case, the state of Ohio illegally obtained evidence based
on an unreasonable and unwarranted search and admitted evidence from the search to the
Cleveland Police Department for the prosecution. In Weeks it was upheld that evidence
obtained by federal agents violating the Fourth Amendment could not be admitted to a
federal trial under the exclusionary rule. Thus, the state of Ohio contended that since the
exclusionary rule only applied to the federal government, the state could admit the
evidence to the court. However, Justice Tom C. Clark found that the exclusionary rule
should be applied to all levels of government.15 Mapp is still criticized to this day because
of the ambiguity of expanding the exclusionary rule, but no further reading than the
Fourteenth Amendment is needed to explain its legality. The Due Process Clause in the
first section of the Fourteenth Amendment says that “nor shall any state deprive any
person of life, liberty, or property, without due process of law.” The Incorporation of the
Bill of Rights, part of the Due Process Clause of the Fourteenth Amendment, states that
under due process of law the Bill of Rights are incorporated to the states.16 The decision
to incorporate fundamental constitutional rights for every single citizen began to inspire
Brennan to continue to follow the Constitution and due process as his ultimate
jurisprudence.

15

Mapp v. Ohio 67 US 635 (1961).

16

U.S. Const. amend. XIV, sec. 1.

90

Lopez v United States (1963), On Lee v United States (1952)
On August 31, 1961 IRS Agent Roger S. Davis visited an inn owned by German
S. Lopez under the suspicion of whether any dancing or other form of evening
entertainment was going on. Lopez denied the questioning, but later that evening Davis
returned and saw dancing. A few months later Davis returned to the inn and told Lopez
he may owe a cabaret tax. Lopez avoided the accusation again, gave the agent $420, and
invited him to return for more money and to stay for free at the inn. Davis left the inn and
told his superiors about the bribe Lopez offered him. Next, Davis went back to the inn
equipped with a wiretap to record the bribery, unbeknownst to Lopez. Lopez once again
proposed bribes, this time officially recorded. In what culminated as Lopez v United
States, these facts were presented by the prosecution for the conviction of Lopez as
bribery of a federal agent. Lopez claimed that the agents’ actions violated his rights as an
unreasonable seizure of his personal property, but the Supreme Court affirmed the
conviction.17 Justice Brennan dissented.
In Brennan’s dissent he cited two past decisions. In arguing to protect the expanse
of individual rights guaranteed to Lopez, Brennan cited Boyd. Part of Justice Bradley’s
opinion in Boyd, which Brennan quoted, said that the right of privacy applies “to all
invasions on the part of the government and its employes [sic] of the sanctity of a man’s
home and the privacies of life.”18 Brennan’s premise was that the illegality of “all
invasions” included wiretapping and the privacy of Lopez’s personal security was
violated. Brennan explained that “while conventional searches and seizures are regulated

17

Brennan, 194-195.

18

Boyd.

91

by the Fourth and Fourteenth Amendments and wiretapping is prohibited by federal
statute electronic surveillance,” it “poses the greatest threat of private freedom,” and “is
wholly beyond the pale of federal law.”19
Brennan also backed up his dissent by referencing a similar case, On Lee v United
States (1952), in which the defendant unknowingly confessed to an acquaintance
disguised as a government informant wearing a wiretap. The Fourteenth Amendment
comes into play here in which Brennan equated his dissent in Lopez with Justice
Frankfurter’s dissent in On Lee. Frankfurter was convinced that a “strong social policy”
of the government and their agencies allowed On Lee to be convicted, which out rightly
violated On Lee’s constitutional guarantee to equal rights and due process in the
Fourteenth Amendment. In the instances of Boyd and On Lee, Brennan was focused on
the privacy of the defendants’ personal security as a citizen who had equal access to all
rights. In both instances the defendants’ words were being unknowingly seized, which
according to Brennan, equated to their persons. Brennan was convinced that under the
Fourth and Fourteenth Amendments Lopez and On Lee were protected from a search or
seizure of evidence in their private quarters without a warrant.20
During the mid 1960s, the possession and distribution of illegal drugs was a
national phenomenon that police forces in every corner of the country were determined to
deter. In these instances, sometimes police disregarded the legality of how a search for

19

“United States v Lopez.” Oyez. Accessed September 8, 2019.
https://www.oyez.org/cases/1994/93-1260.
20

William J. Hoese, “Electronic Eavesdropping: A New Approach,” California Law Review, 52
no. 142 (1964): 142-143, accessed on June 7th, 2019, https://doi.org/10.15779/Z38P18M; John A.
Garfinkel, “The Fourteenth Amendment and State Criminal Proceedings-Ordered Liberty or Just Deserts,”
California Law Review, 41 no. 672 (1954): 686-687, accessed on June 7th, 2019,
https://doi.org/10.15779/Z38578Q.

92

illegal drugs could be conducted. In Ker v. California (1963), police officers were tailing
Roland Murphy whom they suspected was selling marijuana. Police officers saw Murphy
pull up behind a car, get out and speak to the driver of the other car, George Ker. It was
stated in the police report that the officers were too far away from the conversion to hear
or see if any illegal activity was going on. However, they followed Ker anyway. Upon
arriving at Ker’s apartment, the officers entered without announcing their admission and
without consent from the occupants and found a two-pound block of marijuana on the
kitchen table. Ker and his wife were arrested for the possession of marijuana. Four
justices claimed that the Kers’ Fourth Amendment rights were not reduced by the police
officers’ entrance to the Kers’ residence. Brennan did not agree.21
In his dissent, Brennan claimed that “dangers to individual liberty are involved in
unannounced intrusions of the police into the homes of citizens.” Brennan’s remarks
evoke a guarantee that a citizen’s individual rights inherently ensure their right to be
secure against an unwarranted intrusion illegal. He further claimed that “protections of
individual freedom carried into the Fourth Amendment undoubtedly included this firmly
established requirement.” That requirement, Brennan would explain, was that police
officers must announce their presence before breaking into an individual’s home.
Brennan also denounced Justice Tom C. Clark’s opinion that the Kers “might have well
been expecting the police.” Brennan claimed that there must be evidence to prove that the
Kers did in fact have knowledge that the police were in pursuit of them. “That the Kers
were wholly oblivious to the Officers’ presence is the only possible inference on the
uncontradicted facts; the ‘fresh pursuit’ exception is therefore clearly unavailable.” In this

21

Brennan, 202-203.

93

case, the “fresh pursuit” exception would have been the pursuit of officers having reason
to believe a suspect had just committed a crime. In this case there was no evidence that
the Kers knew they were being followed, or any reasonable evidence the officers had for
a “fresh pursuit.” Brennan tied together his dissent by referencing lessons from Mapp. In
Mapp the court equated the seriousness of the Fourth and Fourteenth Amendment’s
effects on personal liberty. “We can no longer permit them [rights] to be revocable at the
whim of any police officer who, in the name of law enforcement itself, chooses to
suspend their enjoyment.” Brennan finished his dissent on a concerned tone: “I thought
by these words we had laid to rest the very problems of constitutional dissonance which I
fear the present case so soon revives.”22
Schmerber v California (1966)
Brennan did not just dissent in controversial Fourth and Fourteenth Amendment
cases. In Schmerber v. California, Armando Schmerber got in a car accident and was
taken to a California hospital for treatment. A police officer who was observing the
incident determined there were signs of Schmerber being drunk. The officer instructed a
physician to withdraw blood from Schmerber, although his lawyer refused to consent to
it. Schmerber’s blood test results were introduced as evidence in a case to convict him of
a DUI. Schmerber claimed that the blood test was an unreasonable search and seizure
under the Fourth Amendment because he did not grant the officer access to his
bloodwork being taken, which would have been protected by due process in the
Fourteenth Amendment. Brennan, who gave the opinion to the court, based his decision
on reasonable cause.23

22

Ker v. California 374 US 23 (1963); Mapp v. Ohio 67 US 635 (1961)

94

The Fourth Amendment not only protects citizens from unreasonable searches and
seizures of their “houses, papers, and effects,” but also includes “persons” which is under
the category of one’s personal body.24 In his opinion to the court Brennan addressed the
question of whether the police officer obtained enough probable cause for him not to
need a search warrant to search and seize Schmerber’s “persons.” Brennan pointed out
that in DUI investigations the evidence of blood alcohol level is marginalized by time
lapse. Thus, the time to obtain a warrant may contradict the objectiveness to test the
evidence. Since time was of the essence, and the officer’s reasonable opinion was that the
petitioner was intoxicated, he made an arrest based on that probable cause. Next, Brennan
concluded that the test taken to obtain evidence, the drawing of blood, was reasonable
because the test was performed by a qualified physician. In his conclusion Brennan said
that “the present record shows no violation of petitioner’s right under the Fourth and
Fourteenth Amendments to be free of unreasonable searches and seizures.”25
Starting with the introduction of Boyd and ending with the progressive Supreme
Court of the 1960s, there was substantial change on the Supreme Court. The new
interpretation that evolved out of Boyd was a century long trial by error. Numerous
Courts could not muster up enough resilience to actually judge the Constitution as a
document that had to evolve with the growth of a liberal and less white nation. Between
1886 and 1966 the Supreme Court did not experience an identical revolution that formed
the Bill of Rights or the Fourteenth Amendment. No internal rebellions paved a way for

23

Brennan, 208-209.

24

U.S. Const. amend. IV.

25

Schmerber v. California 384 US 757 (1966).

95

new laws to be enacted to guarantee the rights citizens legally had. The development of
this period on the Supreme Court had to do with the way justices read the Constitution
and how they perceived those words in their current environment. America as a nation
that had to look in the mirror and realize that progression started with justice for all.

96

CONCLUSION

This work has explained how factors like prejudice and political greed led
lawmakers to unreasonably ignore the protections that the Fourth and Fourteenth
Amendment guaranteed. The origins of the Fourth and Fourteenth Amendment came to
fruition under English law, and were borrowed to form American constitutional law.
However, American constitutionalism is entirely American. The lawmakers who debated
the passing of the Fourth and Fourteenth Amendments had allegiance to passing laws that
provided the most protections for their fellow American citizens. Decided under
tumultuous times of rebellion, independence, and reconstruction, it is understandable how
decisive the history is. Given that liberty was the ultimate reason for ratification of the
Fourth and Fourteenth Amendment, their interpretation must be viewed under how they
worked for citizens in their era of ratifying and ruling.
Starting with English common law, Magna Carta gave birth to the original
common law standard stating that “lawful judgement of his peers or by the law of the
land” defined the common law. Magna Carta was not seriously referenced until the midseventeenth-century when individual property rights became a fundamental guarantee to
natural and private rights for English citizens. Along with the basis of Magna Carta, Sir

97

Edward Coke’s writings became a cornerstone of future Fourth Amendment law. His
stance on outlawing general warrants, the formation of the “castle doctrine”, and firm
opposition of executive authority on the law initiated English lawyers and government to
consider the role common law had in society.
As English citizens and the government turned towards a constitutional authority,
William Blackstone’s Commentaries paved the way for natural and private law to be
equalized in considering the individual rights citizens had. If a citizen did not overstep
their natural right to movement or property, the government had no right to invade their
liberties. As an indirect result of Coke and Blackstone declaring individual liberty was
universal, radical parliamentarian John Wilkes continued his anonymous attacks on the
monarch. What culminated out of Wilkes v Wood ignited American colonists to relish in
Wilke’s cause against unreasonable searches and seizures.
Amidst American colonial resistance of British rule was the popular opposition of
British customs official’s use of writs of assistance to search and seize colonial cargo. In
the famous Writs of Assistance case, James Otis railed against the British use of writs to
search colonists’ private property without a warrant. Inspired by the Writs case, John
Adams led the defense of John Hancock in the Liberty affair in which British officials
searched Hancock’s ship, without a warrant, and seized the cargo. While the British
government dropped the case, their resentment of colonists avoiding search and seizure
boiled over into the first British troops landing on American soil in September 1768.
The ratifying of the Fourth Amendment in 1791 only proved to be one obstacle to
guarantee individual protection against unreasonable searches and seizures. James
Madison and his cohorts left open the interpretation of who exactly could be protected

98

and where. The defining interpretation the South had of the US Constitution, in regards to
individual rights, was that the Comity Clause of Article IV only guaranteed that some
rights could protect citizens of the “several states.” Thus, no protection made it clear that
“privileges and immunities” were bound by the Constitution for every citizen of the
United States. Further, case law like Dred Scott affirmed this notion the South held so
tightly. After the Civil War devastated the South, and the Thirteenth Amendment left
over three million newly freed slaves without land, the federal government stepped in the
lead a reconstruction of the nation. At the heart of Reconstruction was how to fully
represent the newly freed slaves, as citizens, and guarantee they had access to civil
liberty. Because the South dissented so strongly, and President Andrew Johnson would
not sign off on a resolution, legislation under the Freedman’s Bureau and Civil Rights
Act did not make the mark. The Thirty-Ninth Congress debated how a fully
encompassing amendment to safeguard all immunities and privileges for citizens could
work in a nation still healing after the Civil War. Devised by Congressman John
Bingham, the Fourteenth Amendment protected the “privileges or immunities rights of
citizens of the United States” instead of “the several states.” This protection guaranteed
national protection of all citizens of their immunities and privileges including “whenever
the same shall be abridged or denied by the unconstitutional acts of any State.” Included
in this clause, the first eight amendments of the Constitution were incorporated.1
As this study has shown, taking one step forward for civil liberties meets
resistance. Only a few years after the Fourteenth Amendment was ratified, the US

1
Congressional Globe, 39th Congress, 1st Session, 2542 (1866); Lash, Privileges and Immunities,
150-151, 157-158.

99

Supreme Court’s ruling on the Slaughterhouse Cases derailed the privileges and
immunities clause. The court ruled that the immunities and privileges clause of the
amendment only required states to guarantee equal rights of states. The court stated that
“any rights guaranteed by the Privileges and Immunities Clause were limited to areas
controlled by the federal government.”2 Only thirteen years after Slaughterhouse the US
Supreme Court started to switch its trend. In Boyd v US the court ruled that an illegal
search and seizure equaled an illegal seizure of personal liberty. Not only did Justice
Bradley’s in ruling in Boyd set precedent for Fourth Amendment law, but it fostered
stronger protections of individual rights of United States citizens. Bradley summarized
that the Fourth Amendment was being extended based on one’s individual rights as a
private citizen.
Case law of the twentieth-century opened up stronger individual protections under
the Fourth and Fourteenth Amendments. In Weeks v US the Supreme Court ruled that the
government was not invulnerable when violating the Fourth Amendment. Known as the
“exclusionary rule,” the opinion in Weeks set the precedent that evidence gained under
violation of the Fourth Amendment was prohibited in court. Then, in 1949, the court
ruled in Wolf v Colorado that the Fourteenth Amendment’s Due Process Clause legally
validated the Fourth Amendment, including the exclusionary rule. Although the
Fourteenth Amendment’s privilege and immunities clause incorporated the Bill of Rights,
case law had not constitutionally validated the clause until Wolf.

2
“Slaughter-House Cases.” Oyez. Accessed January 28, 2019. https://www.oyez.org/cases/18501900/83us36.

100

In the second half of the twentieth-century the Supreme Court Justice William J.
Brennan ruled in favor of, gave opinions on, and dissented on several Supreme Court
cases that drove home the legacy of individual liberty. Justice Brennan followed in the
footsteps of the framers of the Fourth Amendment who experienced British officials
unjustly imposing unwarranted searches and seizures on American colonists. He also
learned through the interpretation the Constitution that the hard-fought battle to ratify the
Fourteenth Amendment was about correcting wrongs, and repairing the nation, outside
the walls of the court. Brennan sat on the Supreme Court through the Civil Rights Era
watching the federal government use forces to deter millions of protesters that deserved
the immunities and privileges their constitution granted them. Instead of joining the effort
in turning away marginalized communities, Brennan stepped up and read the text of the
Constitution for what it meant in the times of ratifying the Fourth and Fourteenth
Amendments, and applied it to the Supreme Court in the Civil Rights Era.
What Justice Brennan exclaimed at Georgetown University in 1985 gives the
history of the times around passing a law a broader perspective. The injustice the
American colonists faced was more than just about the city of Boston in the 1760s. Their
fight personified what the future would look like; a future in which no unreasonable
search and seizure, and no general warrant was allowed. Similarly, the atrocity of slavery
personified a fight not just to be free, but sustain an American life that gave equal
protections, immunities, and privileges to all Americans. Most recently, we can learn
from Justice Brennan, who adapted the principles of the Fourth and Fourteenth
Amendments and read them through a historical scope that made sense in his time.

101

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