Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
Connected in most people's mind with the right of privacy is the right
of a person to keep his house and his private papers to himself; but
it bears no relation whatever to the very new-fangled notion of a
general right to privacy. The two principles are that an Englishman's
house is his castle. His home, even though it be but one room in
a tenement, may not be invaded by anybody, even by any government
official or authority (except, of course, under modern sanitary police
regulation), without a written warrant specifying the reason for
such invasion, some offence with which the man is charged, and some
particular document or paper, or other evidence of which they are in
search. The principle against general warrants--that is, warrants
specifying no definite offence or naming no particular person--was
established in Massachusetts in Colony times, and the principle taken
over to England and affirmed by Lord Camden--one of the two or three
celebrated examples where we have given a new constitutional principle
back to the mother country. Now, closely connected with this is
another principle that a man shall not be compelled to testify in a
criminal matter against himself, or that, if so compelled by statute
or official, he shall then forever be immune from prosecution for
any crime revealed by such testimony; the wording of the earlier
constitutional provisions was "in a criminal offence," but by modern,
more liberal interpretation, it has been extended to any compulsory
testimony, whether given in a criminal proceeding or not. This, with
the principle protecting a man's private affairs from inquisition, is
expressed in our Fourth and Fifth Amendments, the former prohibiting
unreasonable searches and general warrants, and the latter providing
that no one shall be compelled in any criminal case to be a witness
against himself, nor deprived of property without due process of law,
and it has reasonably been argued that an inquisition into a person's
business or book of accounts is such deprivation of his property
without due process of law, at least when applied to a natural person.
I find no legislation limiting these important principles, but on
the contrary the tendency in modern statutes and modern State
constitutions is to extend and generalize them. Of such is the famous
clause of the recent constitutions of Kentucky and Wyoming that
"absolute arbitrary power over the lives, liberty, and property
of freemen exists nowhere in a republic, not even in the largest
majority." In view of the frequently successful efforts of trust
magnates and others to escape indictment or punishment by some
enforced revelation of their affairs given after a criminal proceeding
has has been commenced or before a grand jury, legislation is now
strongly urged to withhold them immunity in such cases. This would
relegate us to the early state of things where they would simply
refuse to answer, so that it may be doubted if, on the whole, we
should gain much.
Public-domain text, read in full here on John Shaqi.
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