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Search in United Kingdom

Meaning of Search

The following is an old definition of Search [1]: A careful examination; an examination or inspection authorized by law. It may be (1) of legal records in their proper office, for acts and proceedings affecting title to realty, such as conveyances, mortgages, mechanics’ liens, municipal liens, judgments. The certificate of such examination is also called a search; and searcher describes the person who makes the examination. See Name, 1.It may be (2) of a man’s house, possessions, or person, tor the discovery of proof of an offense with which he is charged. In this sense a search may be for matter unlawfully deposited in the mails; for gambling apparatus; for implements used in counterfeiting; for Intoxicating liquors kept for unlawful sale; or for other articles unlawfully concealed; also, for frauds attempted upon the revenue; and for liquors intended for illegal introduction into the Indian country. Search-warrant. Written autliority from a court or magistrate for the examination of a designated house or place for articles alleged to be concealed there contrary to law, – frequently for stolen property. 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.” Search for and seizure of stolen or forfeited goods, or goods concealed in order to avoid the payment of duties, are totally different things from a search for and a seizure of a man’s private papers for use as evidence against him. In the one case the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws or concealed to avoid paying duties has been authorized by English statutes for two centuries, and by our revenue acts since the commencement of the government, the first act, that of July 31, 1789, being passed by the Congress which proposed the first ten amendments. To ascertain what was meant by ” unreasonable searches and seizures,” as used in the Fourth Amendment, it is only necessary to recall the controversies had upon the subject. The practice had obtained in the colonies of issuing writs of assistance to revenue officers, empowering them in their discretion to search suspected places for smuggled goods. This practice had been bitterly denounced, as “placing the liberty of every man in the hands of every petty officer.” In England, from 1762, when the North Briton was started by John Wilkes, to 1766, when the Commons condemned general warrants for the seizure of persons or papers, a controversy was carried on between the government and Wilkes, he insisting upon the abolition of certain abuses, chief among which was the issuing of general warrants by the secretary of state to search private houses for evidence against alleged libelers of the administration. Several numbers of the North Briton being viewed as heinously libelous, Lord Halifax issued a general warrant for the apprehension of the supposed offenders. On the authority of this warrant Wilkes’s house was searched in his absence, and all his papers, including even his will, were indiscriminately seized. For the outrage Wilkes recovered a verdict of ?1000 against one of the messengers who had made the search, and ?4000 against Lord Halifax, who had issued the warrant. Another case, also fresh in memory in 1791, was that of Entick v. Carrington, for entering the plaintiff’s dwelling, breaking open his desks, boxes, etc., and examining his papers. In this case Lord Camden pronounced the judgment of the court (on a special verdict) in 1765, and the law has ever since been regarded as fettled, the decision being considered a land-mark in English history. The principles laid down affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense, but rather the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has not been forfeited by conviction for an offense. 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 within the condemnation of the judgment pronounced by Lord Camden. The “unreasonable searches and seizures” condemned in the Fourth Amendment are most always made for the pui-pose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man ” in a criminal case to be a witness against himself,” throws light upon the question as to what is an “unreasonable search and seizure,” Seizing a man’s private books and papers to be used in evidence against him is not different from compelling him to be a witness against himself. See Health, Boards of; Post-opfice; Seizure; Subpcena, Duces; Trade-mark. Right of search. The right in a belligerent to stop a neutral vessel on the high seas, to go on board of her, examine her papers, and, it may be, even her cargo – in short, to ascertain by personal inspection whether or not she is conveying hostile or contraband goods. A war right; applicable to merchant ships alone; to be exercised in such a way as to attain its object, and nothing more. The duty of submitting to the search is well established in international law. Treaties have been entered into regulating the exercise of the right. See Visit, 1.

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Notes and References

  1. Concept of Search provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)

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