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The Fourth Amendment
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The Fourth Amendment: Origins and Original Meaning 602 - 1791

William J. Cuddihy

Abstract

This book tells the full story of the Fourth Amendment's complex history leading up to its ratification, including its intellectual roots in England. The Fourth Amendment's protection against unreasonable search and seizure provides the bulwark for police regulation and many other government functions in the United States. One of the most controversial rights in the Bill of Rights, this amendment is also among the most frequently adjudicated provisions of constitutional law. Yet its meaning has remained deeply contested, and the story of its origins is largely unknown. This book has particular ... More

Keywords: Fourth Amendment, bill of rights, constitutional law, surveillance, USA–Patriot Act, NSA, wire-tapping, new technology

Bibliographic Information

Print publication date: 2009 Print ISBN-13: 9780195367195
Published to Oxford Scholarship Online: January 2009 DOI:10.1093/acprof:oso/9780195367195.001.0001

Authors

Affiliations are at time of print publication.

William J. Cuddihy, Author

Contents

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Front Matter

Title Pages

Dedication

Preface

Acknowledgments

Abbreviations to Sources

Introduction

PART I The Emergence of the Concept of Unreasonable Search and Seizure, to 1642

Chapter 1 English Thought on Search and Seizure to 1642

Chapter 2 Search and Seizure in England Before 1485

Chapter 3 The English Law of Search and Seizure, 1485–1642

Chapter 4 The English Practice of Search and Seizure, 1485–1642

PART II The Emergence of the General Warrant as an Unreasonable Search and Seizure

Chapter 5 English Thought on Search and Seizure, 1642–1700

Chapter 6 The General Warrant in Intellectual and Political Perspective, 1642–1700

Chapter 7 Search and Seizure in England, 1642–1700: The Legal Background to the English Critique of General Warrants

Chapter 8 Colonial Thought Respecting Search, Seizure, and the Illegitimacy of General Warrants, to 17601

Chapter 9 Colonial Legislation Regarding Search and Seizure, to 17601

Chapter 10 Colonial Search Warrants and Their Enforcement, to 1760, in Relation to the Search Warrant Clause of the Fourth Amendment1

Chapter 11 Colonial Searches by the Customs Services of England and Great Britain, to 17601

PART III The Evolution of the Specific Warrant as the Orthodox Method of Search and Seizure, to 1760

Chapter 12 English and British Advocacy of the Specific Warrant, to 17601

Chapter 13 English and British Advocacy of the Specific Warrant in Intellectual and Political Context, 1700–1760

Chapter 14 Search and Seizure in Great Britain, 1700–1760: The Legal Background to the Specific Warrant Clause

Chapter 15 The Colonial Roots of the Specific Warrant Clause: Search and Seizure in Massachusetts, to 1760

Chapter 16 The Political Background to the Emergence of the Specific Warrant in Massachusetts, to 1760

Chapter 17 Paxton’s Case and the Writs of Assistance Controversy in Massachusetts, 1755–1762

PART IV Developments in Search and Seizure Beyond the Transition to Specific Warrants, to 1760

Chapter 18 Developments in Search and Seizure Beyond the Transition to Specific Warrants, to 1760

PART V Developments in Search and Seizure, 1760–1776

Chapter 19 The Wilkes Cases: Search and Seizure in Great Britain, 1761–1776

Chapter 20 The Writs of Assistance Controversy, 1761–1776: The Awakening of Hostility to General Search and Seizure Throughout the Colonies

Chapter 21 Colonial Responses to the Controversies over Wilkes, General Warrants, and Writs of Assistance: The Widening Opposition to General Warrants

Chapter 22 Issues Correlative to the Search Warrant, 1761–1776

PART VI The Emergence of the Fourth Amendment, 1776–1791

Chapter 23 American Search and Seizure, 1776–1787: The Years of Paradox

Chapter 24 The Formation and Original Meaning of the Fourth Amendment, 1787–1791

End Matter

Afterword

APPENDIX A Monographic Sources on the Authors of English Legal Treatises, 1168–1581

APPENDIX B Searches and Seizures Respecting the British Guilds, 1298–1692

APPENDIX B-1 Guild Searches Restricted to the Premises of Artisans of the Corresponding Professions

APPENDIX B-2 Guild Searches Unrestricted to the Premises of Artisans of the Corresponding Professions

APPENDIX C

APPENDIX C-1 Forms of Search Warrants in English Legal Treatises, 1618–1640

APPENDIX C-2 Forms of Search Warrants in English Legal Treatises, 1642–1700

APPENDIX C-3 Forms of Search Warrants in British Legal Treatises, 1700–1760

APPENDIX C-4 Forms of Search Warrants in Colonial Legal Treatises, to 1760

APPENDIX C-5 Typical Search Warrants in the Colonies Before 1760

APPENDIX D Votes of Massachusetts Towns on the Excise of 1754

APPENDIX D-1 Negative Votes: Towns That Rejected the Excise Bill of 1754

APPENDIX D-2 Positive Votes: Towns That Approved the Excise of 1754

APPENDIX D-3 Poll Tax Assessments of Towns That Voted on the Excise of 1754 (In pounds–shillings–pence)

APPENDIX D-4 Abstention Votes: Towns That Resolved to Abstain From Voting on the Excise Bill

APPENDIX D-5 “Silent Towns I”: Towns in Which the Excise Bill Appeared on the Agenda for a Town Meeting but Not in the Records for That Meeting or for Any Later One

APPENDIX D-6 “Silent Towns II”: Towns with Surviving Meeting Records for July–October 1754 that Do Not Mention the Excise Bill (78 towns)

APPENDIX D-7 “Record Gaps”: Towns with Records Commencing before 1754 but Missing When Massachusetts Towns Debated the Excise Bill of 1754 (3 towns)

APPENDIX D-8 Undocumented Towns: Towns that Either Generated No Meeting Records or for Which Previously Extant Records are Now Lost (5 towns)

APPENDIX D-9 “Fictitious Towns”: Towns Claimed by Massachusetts but outside Its Boundaries in 1754 (5 towns)

APPENDIX E

APPENDIX E-1 The Primary Sources on Paxton’s Case (1761)

APPENDIX E-2 Secondary Sources on Paxton’s Case (1761)

APPENDIX F

APPENDIX F-1 British Documents Respecting Civil Rights and Liberties, 1628 to 1760

APPENDIX F-2 Colonial Precursors to the American Constitution, to 1760

APPENDIX G

APPENDIX G-1 The Wilkes Cases

APPENDIX G-2 Leading Secondary Sources of the Wilkes Affair

APPENDIX H

APPENDIX H-1 Colonial Publications and Press Reports Respecting John Wilkes and His Role in The North Briton Forty-Five

APPENDIX H-2 Pronouncements by the Continental Congress on Unreasonable Search and Seizure, 21, 26 Oct. 1774: Pamphlet and Newspaper Reprints

APPENDIX I State Constitutions of 1776–1784 that Ignored Search and Seizure

APPENDIX J The Massachusetts Constitution of 1780 in Relation to Search and Seizure: Ratification Returns

APPENDIX J-1 Votes on Section 14 of the Massachusetts Constitution of 1780: 42 towns

APPENDIX J-2 Votes on Segments of the Massachusetts Constitution of 1780 that Included the Article on Search and Seizure: 61 towns

APPENDIX J-3 Votes on the Massachusetts Constitution or Declaration of Rights of 1780 as a Whole: 73 towns

APPENDIX J-4 Votes of Approximate Number on the Constitution of 1780: 11 Towns

APPENDIX J-5 Voted on the Massachusetts Constitution: Result but Not Margin of Vote Recorded: 26 towns

APPENDIX J-6 Towns that Voted Only on Parts of the Constitution that Did Not Concern Search and Seizure: 3 towns

APPENDIX J-7 Towns that Voted on Proposals to Amend the Constitution but Not on the Constitution Itself: 10 towns

APPENDIX J-8 Towns that Voted on the Constitution, but the Substance of the Vote Does Not Survive: 1 town

APPENDIX J-9 Towns that Placed the Constitution on the Agenda for at Least One Town Meeting but Did Not Record the Substance of the Resulting Vote: 3 towns

APPENDIX J-10 Ambiguous Reports: 3 towns

APPENDIX J-11 Towns that Voted Not to Vote on the Constitution of 1780 or to Send No Return: 7 towns

APPENDIX J-12 Towns with Records Predating the Constitution that Are Missing or Blank for the Period When It Was before the Towns: 3 towns

APPENDIX J-13 Towns with Records for 1780 that Mention No Vote on the Constitution of that Year: 22 towns

APPENDIX J-14 Towns Whose Earliest Records Start after 1780: 26 towns

APPENDIX J-15 Fictitious Towns: Towns in the Massachusetts Tax Act of 1780 that Were Located in Other Jurisdictions: 4 towns

APPENDIX K The Authorship of the State Constitutions of 1776–84 and of Their Statements on Search and Seizure

APPENDIX L Search and Seizure by Quasi–Official and Unofficial Institutions Before the Revolution

APPENDIX M The Effects of Plunder on Opinion Respecting Search and Seizure during the American Revolution

APPENDIX N

APPENDIX N-1 Secondary Sources on the State Ratifying Conventions 1787–1788

APPENDIX N-2 Ratifications by the State Legislatures in Chronological Sequence (cited by statute):

APPENDIX O An Inventory of Manuscripts that Congressmen Wrote While Drafting the Fourth Amendment

APPENDIX P Forms of Search Warrants in American Legal Treatises, 1792–1820

APPENDIX Q Origins of the Affirmation Phrase

[UNTITLED]

Table of Cases

Index