The Common Law Background of the Fourth Amendment

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Privacy is a human right and the Fourth Amendment affirms this right by protecting the right of the people against searches and seizures that infringe upon their privacy. “Every man’s house is his castle” (Fourth Amendment, n.d., History and Scope of the Amendment, para. 1). This was a maxim that was celebrated in England and shows that one had a right to protect their house in opposition to illegal intrusion. The purpose of this paper is to define and examine the common law background of the Fourth Amendment.

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The common law originated in England. It is also known as “judge-declared law” (Duhaime, n.d. para. 1). The law applies to specific people according to their customs. Thus, the common law developed according to the traditions of Britain. Many countries including American developed their laws from England’s common law. The fourth amendment has its origin in the common law. The Fourth Amendment originated from the English common law during the seventeenth and eighteenth centuries. It developed because of the experience with England its former colonizer (Fourth Amendment, n.d.). The amendment arose following a public outcry in reaction to three cases in one decided in the colony and two in England. The cases decided in England involved two pairs. “Wilkes v. Wood, 19 Howell’s State Trials 1153 (C.P. 1763), and Entick v. Carrington, 19 Howell’s State Trials 1029 (C.P. 1765)” (Search and Seizure, 2010, para. 2). The cases involved some pamphleteers who had been accused of seditious libel. They had criticized the ministers of the king and thus the king himself. Therefore, warrants of the search were issued by the king’s agents, and the pamphleteers’ homes were ransacked. During the search, all their papers and books were seized. (During this period kings’ agents could issue warrants while in the American warrants can only be issued by a magistrate or judge after the review of an application from a police officer). The pair sued for damages that resulted from the search and for void warrants as they claimed they were illegal. They won the two cases after the decision of Judge Lord Camden.

To stamp out illegal smuggling of goods in Britain inspectors were given blanket search warrants that allowed them to search any place they suspected could have illegal goods. This was done using the Writs of Assistance Case. Furthermore, citizens could be compelled to aid in the searches consequently the name of the writ. A number of traders from Boston were subjected to this search warrant and they sued to seek a holding for the illegality of the search. They lost the case but this led to strong opposition against the British rule (Search and Seizure, 2010).

Many historians are of the opinion that the Fourth Amendment was written to assert the ruling in the Entick and Wilkes case and challenge the ruling in the Writs of Assistance Case. Three principles thus arise. One, the government should have a substantial justification before issuing a search warrant. This would prevent unreasonable searches and seizures (Fourth Amendment, n.d.). Second, the searches should have a limit for their justification because in Entick and Wilkes’s case their books and papers were seized yet they were legal. Third, the use of a blanket search should be avoided. This was a problem as the government used blanket warrants to search and thus did not protect the citizens against overreaching by the police. Moreover, in the three cases, the warrants were not issued to investigate a crime rather on mere suspension without a reasonable cause.

Finally, we can say that the Fourth Amendment was designed to reign on the police to prevent them from infringing on the privacy of citizens unnecessarily. The Fourth Amendment has gone through many structuring to date to ensure that the rights of citizens are protected and the police are able to do their work without hindrances in the fight against crime.

References

Duhaime, L (n.d.). Common-Law. 2010, Web.

Fourth Amendment- search and seizure. (n.d.). 2010, Web.

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Search and Seizure – The Fourth Amendment: Origins, Text, and History. 2010. Web.

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