The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft

By Samuel Dash | Go to book overview

CHAPTER 4
The Plate-Glass Duty Fraud Case

In order to ascertain the nature of the proceedings intended by the Fourth Amendment to
the Constitution under the term unreasonable searches and seizures, it is only necessary
to recall the contemporary or the recent history of the controversies on the subject, both
in this country and in England
.

Justice Bradley in Boyd v. United States, 1 16 U.S. 616
(1885)

Despite the flame of fire James Otis must have been in his argument against writs of assistance, and which John Adams said sparked the Revolution and freedom, the Bill of Rights’ Fourth Amendment protection against unreasonable searches and seizures did not become an issue before the U.S. Supreme Court until close to one hundred years after the ratification of that crucial amendment. Why was this so?1 Were there no searches and seizures by federal officers during the first hundred years of governance under the new Constitution by the new federal government? Apparently, there were none as occurred in England before the Revolution or as we know them today. The only federal police in the first half of the nineteenth century were U.S. marshals, authorized by Congress in the Federal Judiciary Act of 1789. Very few federal crimes were enacted by a Congress that was extremely sensitive to its limited powers and to the hostility of the states to the federal government’s intrusion into the criminal law enforcement of the states. Congress did not have power to adopt the English common law crimes into federal law. It

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