Boyd v. U S

There have been several decisions in the circuit and district courts sustaining the constitutionality of the law under consideration, as well as the prior laws of 1863 and 1867. The principal of these are Stockwell v. U. S., 3 Cliff. 284; In re Platt, 7 Ben. 261; U. S. v. Hughes, 12 Blatchf. 553; U. S. v. Mason, 6 Biss. 350; Same v. Three Tons of Coal, Id. 379; Same v. Distillery No. 28, Id. 483. The first and leading case was that of Stockwell v. U. S., decided by Mr. Justice CLIFFORD and Judge SHEPLEY, the law under discussion being that of 1867. Justice CLIFFORD delivered the opinion, and relied principally upon the collection statutes, which authorized the seizure of goods liable to duty, as being a contemporaneous [116 U.S. 616, 636] exposition of the amendments, and as furnishing precedents of analogous laws to that complained of. As we have already considered the bearing of these laws on the subject of discussion, it is unnecessary to say anything more in relation to them. The learned justice seemed to think that the power to institute such searches and seizures as the act of 1867 authorized, was necessary to the efficient collection of the revenue, and that no greater objection can be taken to a warrant to search for books, invoices, and other papers appertaining to an illegal importation than to one authorizing a search for the imported goods; and he concluded that, guarded as the new provision is, it is scarcely possible that the citizen can have any just ground of complaint. It seems to us that these considerations fail to meet the most serious objections to the validity of the law. The other cases followed that of Stockwell v. U. S. as a precedent, with more or less independant discussion of the subject. The Case of Platt and Boyd, decided in the district court for the Southern district of New York, was also under the act of 1867, and the opinion in that case is quite an elaborate one; but, of course, the previous decision of the circuit court in the Stockwell Case had a governing influence on the district court. The other cases referred to were under the fifth section of the act of 1874. The case of U. S. v. Hughes came up, first, before Judge BLATCHFORD in the district court in 1875. 8 Ben. 29. It was an action of debt to recover a penalty under the customs act, and the judge held that the fifth section of the act of 1874, in its application to suits for penalties incurred before the passage of the act, was an ex post facto law, and therefore, as to them, was unconstitutional and void; but he granted an order pro forma to produce the books and papers required, in order that the objection might come up on the offer to give them in evidence. They were produced in obedience to the order, and offered in evidence by the district attorney, but were not admitted. The district attorney then served upon one of the defendants a subpoena duces tecum, requiring him to produce the books and papers; and this being declined, he moved for an order to compel him to produce them; but the court refused to make such order. The books and [116 U.S. 616, 637] papers referred to had been seized under the act of 1867, but were returned to the defendants under a stipulation to produce them on the trial. The defendants relied, not only on the unconstitutionality of the laws, but on the act of 1868, before referred to, which prohibited evidence obtained from a party by a judicial proceeding from being used against him in any prosecution for a crime, penalty, or forfeiture. Judgment being rendered for the defendant, the case was carried to the circuit court by writ of error, and, in that court, Mr. Justice HUNT held that the act of 1868 referred only to personal testimony or discovery obtained from a party or witness, and not to books or papers wrested from him; and, as to the constitutionality of the law, he merely referred to the Case of Stockwell, and the judgment of the district court was reversed. In view of what has been already said, we think it unnecessary to make any special observations on this decision. In U. S. v. Mason, Judge BLODGETT took the distinction that, in proceeding in rem for a forfeiture, the parties are not required by a proceeding under the act of 1874 to testify or furnish evidence against themselves, because the suit is

not against them, but against the property. But where the owner of the property has been admitted as a claimant, we cannot see the force of this distinction; nor can we assent to the proposition that the proceeding is not, in effect, a proceeding against the owner of the property, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture, and it is his property which is sought to be forfeited; and to require such an owner to produce his private books and papers, in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is surely compelling him to furnish evidence against himself. In the words of a great judge, 'Goods, as goods, cannot offend, forfeit, unlade, pay duties, or the like, but men whose goods they are.' 9

The only remaining case decided in the United States courts, [116 U.S. 616, 638] to which we shall advert, is that of U. S. v. Distillery No. 28. In that case Judge GRESHAM adds to the view of Judge BLODGETT, in U. S. v. Mason, the further suggestion, that as in a proceeding in rem the owner is not a party, he might be compelled by a subpoena duces tecum to produce his books and papers like any other witness; and that the warrant or notice for search and seizure, under the act of 1874, does nothing more. But we cannot say that we are any better satisfied with this supposed solution of the difficulty. The assumption that the owner may be cited as a witness in a proceeding to forfeit his property seems to us gratuitous. It begs the question at issue. A witness, as well as a party, is protected by the law from being compelled to give evidence that tends to criminate him, or to subject his property to forfeiture. Queen v. Newel, Parker, 269; 1 Greenl. Ev. 451-453. But, as before said, although the owner of goods, sought to be forteited by a proceeding in rem, is not the nominal party, he is, nevertheless, the substantial party to the suit; he certainly is so, after making claim and defense; and, in a case like the present, he is entitled to all the privileges which appertain to a person who is prosecuted for a forfeiture of his property by reason of committing a criminal offense.

We find nothing in the decisions to change our views in relation to the principal question at issue. We think that the notice to produce the invoice in this case, the order by virtue of which it was issued, and the law which authorized the order, were unconstitutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were erroneous and unconstitutional proceedings. We are of opinion, therefore, that the judgment of the circuit court should be reversed, and the cause remanded, with directions to award a new trial; and it is so ordered.

MILLER, J.

I concur in the judgment of the court, reversing that of the circuit court, and in so much of the opinion of this court as [116 U.S. 616, 639] holds the fifth section of the act of 1874 void as applicable to the

present case. I am of opinion that this is a criminal case within the meaning of that clause of the fifth amendment to the contitution of the United States which declares that no person 'shall be compelled in any criminal case to be a witness against himself.' And I am quite satisfied that the effect of the act of congress is to compel the party on whom the order of the court is served to be a witness against himself. The order of the court under the statute is in effect a subpoena duces tecum, and, though the penalty for the witness' failure to appear in court with the criminating papers is not fine and imprisonment, it is one which may be made more severe, namely, to have charges against him of a criminal nature, taken for confessed, and made the foundation of the judgment of the court. That this is within the protection which the constitution intended against compelling a person to be a witness against himself, is, I think, quite clear. But this being so, there is no reason why this court should assume that the action of the court below, in requiring a party to produce certain papers as evidence on the trial, authorizes an unreasonable search or seizure of the house, papers, or effects of that party. There is in fact no search and no seizure authorized by the statute. No order can be made by the court under it which requires or permits anything more than service of notice on a party to the suit. That there may be no mistake as to the effect of the statute and the power to be exercised under it, I give the section here verbatim:

'Sec. 5. That in all suits and proceedings other than criminal arising under any of the revenue laws of the United States, the attorney representing the government, whenever, in his belief, any business book, invoice, or paper, belonging to or under the control of the defendant or claimant, will tend to prove any allegation made by the United States, may make a written motion, particularly describing such book, invoice, or paper, and setting forth the allegation which he expects to prove; and thereupon the court in which suit or proceeding is [116 U.S. 616, 640] pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice, or paper, in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be served formally on the defendants or claimant, by the United States marshal, by delivering to him a certified copy thereof, or otherwise serving the same as original notice of suit in the same court are served; and if the defendant or claimant shall fail or refuse to produce such book, invoice, or paper in obedience to such notice, the allegations stated in the said motion shall be taken as confessed, unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if produced, the said attorney shall be permitted, under the direction of the court, to make examination-at which examination the defendant or claimant, or his agent, may be present-of such entries in said book, invoice, or paper as relate to or tend to prove the allegation aforesaid, and may offer the same in evidence on behalf of the United States. But the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid.' 18 St. 187.

Nothing in the nature of a search is here hinted at. Nor is there any seizure, because the party is not required at any time to part with the custody of the papers. They are to be produced in court, and, when produced, the United States attorney is permitted, under the direction of the court, to make

examination in presence of the claimant, and may offer in evidence such entries in the books, invoices, or papers as relate to the issue. The act is careful to say that 'the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid.'

The fourth amendment says: '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 warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.' [116 U.S. 616, 641] The things here forbidden are two: search and seizure. And not all searches nor all seizures are forbidden, but only those that are unreasonable. Reasonable searches, therefore, may be allowed, and if the thing sought be found, it may be seized. But what search does this statute authorize? If the mere service of a notice to produce a paper to be used as evidence, which the party can obey or not as he chooses, is a search, then a change has taken place in the meaning of words, which has not come within my reading, and which I think was unknown at the time the constitution was made. The searches meant by the constitution were such as led to seizure when the search was successful. But the statute in this case uses language carefully framed to forbid any seizure under it, as I have already pointed out.

While the framers of the constitution had their attention drawn, no doubt, to the abuses of this power of searching private houses and seizing private papers, as practiced in England, it is obvious that they only intended to restrain the abuse, while they did not abolish the power. Hence it is only unreasonable searches and seizures that are forbidden, and the means of securing this protection was by abolishing searches under warrants, which were called general warrants, because they authorized searches in any place, for any thing.

This was forbidden, while searches founded on affidavits, and made under warrants which described the thing to be searched for, the person and place to be searched, are still permitted.

I cannot conceive how a statute aptly framed to require the production of evidence in a suit by mere service of notice on the party, who has that evidence in his possession, can be held to authorize an unreasonable search or seizure, when no seizure is authorized or permitted by the statute.

I am requested to say that the chief justice in this opinion.

Footnotes

[ Footnote 1 ] S. C. 24 Fed. Rep. 690, 692.

[ Footnote 2 ] 13 & 14 Car. II. c. 11, 5.

[ Footnote 3 ] 12 Car. H. c. 19; 13 & 14 Car. II. c. 11; 6 & 7 W. & M. c. 1; 6 Geo. I. c. 21; 26 Geo. III. c. 59; 29 Geo. III. c. 68, 153; etc.; and see the article 'Excise,' etc., in Burn, Just. and Williams, Just., passim, and 2 Evans, St. 221, sub-pages 176, 190, 225, 361, 431, 447.

[ Footnote 4 ] Cooley, Const. Lim. 301-303. A very full and interesting account of this discussion will be found in the works of John Adams, vol. 2, Appendix A, pp. 523-525; vol. 10, pp. 183, 233, 244, 256, etc., and in Quincy's Reports, pp. 469-482; and see Paxton's Case, Id. 51-57, which was argued in November of the same year, (1761.) An elaborate history of the writs of assistance is given in the appendex to Quincy's Reports, above referred to, written by Horace Gray, Jr., Esq., now a member of this court.

[ Footnote 5 ] See 3 May, Const. Hist. England, c. 11; Broom, Const. Law, 558; Cox, Inst. Eng. Gov. 437.

[ Footnote 6 ] See further as to searches and seizures, Story, Const. 1901, 1902, and notes; Cooley, Const. Lim. 299; Sedgw. St. & Const. Law, (2d Ed.) 498; Whart. Com. Amer. Law, 560; Robinson v. Richardson, 13 Gray, 454.

[ Footnote 7 ] Sixty-two years later a similar act was passed in England, viz., the act of 14 & 15 Vict. c. 99, 6. See Poll. Prod. Doc. 5.

[ Footnote 8 ] See Poll. Prod. Doc. 27; 77 Law Lib.

[ Footnote 9 ] VAUGHAN, C. J., in Sheppard v. Gosnold, Vaughan, 159, 172; approved by PARKER, C. B., in Mitchell v. Torup, Parker 227, 236.