To every man his due; The closed door

So the Elizabethan judge, Sir Edward Cook, expounding the law. A man's house is his castle. Edomasua Cui Cui to Tissimon Rayfugium. English-speaking people still quote Lord Cook, though they may never have heard of him, and may be rather vague as to the sense of his words. A man's house is his castle. Make any sense to you? Well, there's a queen in my house, all right, but there's no king, no, nor even a prince. If you mean what I think you mean to your heart, be advised that I should happily crown you. No, honey, just joking. There's this old saying, a man's house is his castle, my tiara. Who lives in a castle? Do we know anybody who lives in a castle? Do we live in one? Huh? If this, this, this, this. Cozy little nass? This fishbowl. You don't like being the picture in your own picture window? This open floor plan hides nothing away. You can't mean this three-bedroom ranch-style blue heaven.

I mean this dump. If this is a castle. Here, here. Would that it were in Spain? All right. To every man his due, a series of radio programs about the principles of justice, to every man his due is produced by radio station WHA of University of Wisconsin under a grant from the National Educational Television and Radio Center in cooperation with the National Association of Educational Broadcasters. Now, the closed door. Maybe you don't care who it is.

Maybe a knock at the door leaves you cold. Oh, Flo, somebody's knocking. Flo? It may even annoy you a little. Neighbors, neighbors. Why isn't it the regur for them to drop out? Very likely a knock at the door has never been known to strike terror in your heart, although it may at times start your is something with eager anticipation. Oh, maybe it's the cosmetic woman. A knock at the door, as a symbol, stands on the positive side of things in our culture, evoking visions of long-lost friends, unexpected delights, sudden good fortune. It's something to sing about, make poetry about, even joke about. Knock, knock. Who's there? Otis. Otis, who? Otis opportunity. Whoever it is at the door, you don't have to let him in if you don't want to. You feel pretty confident about that. And so, with hardly a second thought, you answer it. You don't have to knock it down.

I'm coming. I'm coming. But suppose it should turn out to be Patrick or Mally Clancy at your door. Officer Clancy. Well. Police officer Clancy, that is, with his cap in his hand and his button shining and a simple request, credulously stated. Well, what a thing to ask of a decent law-abiding citizen. Will I consent to let you search my house? I should say not. Search my house, indeed. Well, no, sir. No, indeed, not without my consent. When it's a policeman at your door, you do not, if your wise, slam it in his face. You don't lock and barricaded, either. You certainly don't use force to keep him out of your house. You don't have to. The law takes care of that for you. It is the law everywhere in this land of the free that the doors of law-abiding citizens are closed to police officers and other officials

of government. The door opens only when there is good reason to believe that a citizen has broken the law, or that his house contains illegal goods, or the instruments of a known crime, or when a citizen freely and voluntarily opens it. Officer Clancy has sworn on oath to defend your property, your life, your freedom. But you reserve the right not to welcome him into your home. The right of the people begins the fourth amendment to the United States Constitution. To be secure in their prisons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. And no orange shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the prisons or things to be seized. This amendment and similar provisions in the constitutions of all the states close the doors of law-abiding citizens to governmental officials.

This is the law that makes a man's house his castle. Every man's. Every woman's. The fourth amendment does not exclude from its protection, says a federal judge of the sixth circuit, even a woman of the underworld. Police officers can no more violate her rights under the Constitution, and they can violate those of any other person. We've heard enough in these last years throughout the world of the knock on the door in the nighttime, the arrest, a ransacking search, and the prison cell to take warning. The constitutional rights of everyone are immediately imperiled when the rights of even the outcast to disdain and the powerless are trampled over with impunity. No man or woman has the right to retreat into his castle, turn up the drawbridge, and proceed to break the law. It's only reasonable that officers of the law should at times have to enter and search private quarters in order to enforce the law.

Not all searches and seizures are forbidden, only unreasonable ones. When an officer has good reason to believe that the fruits or instrumentalities of a particular crime rest in a particular place, he may enter and search that place. However, it's not for him to judge the reasonableness of the search he wishes to make. This is a basic point in the protection afforded by the Fourth Amendment and its state constitutional counterparts. That the reasonableness of a search must be judged by the detached and neutral mind of a magistrate, the judge from whom the officer must, in almost all instances, procure a search warrant. The presence of a search warrant serves a high function, explains just a stuggler of the United States Supreme Court. Absent some grave emergency. The Fourth Amendment has interposed a magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities.

It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a hidey thing, and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. Not that an officer may never search without a warrant, he may. He may search the person of one whom he has just arrested. And to some extent, the scene of the arrest, providing the arrest is lawful. Without a warrant, he may also search a movable vehicle. And automobiles say, providing he has good reason to believe it contains contraband or instruments of a crime. This is held to be only reasonable, since the automobile might vanish while he visited the judge.

He may also search without a warrant when a citizen freely and voluntarily gives his consent. Should an officer persist without a warrant or consent in a search judged later to be unreasonable, the victim, like the victim of any unreasonable search, may be awarded damages. In some cases, those who make unreasonable searches with or without warrant may be fined and punished. In federal courts and some state courts, evidence acquired by an unreasonable search is not admissible. This is the law which makes your home a castle, a fortress into which no one, neither law-breaker, law-maker, nor law-enforcer may intrude. Not that is without getting into trouble. R's is a nation dedicated to belief in the inalienability of every man's right to life, liberty, and the pursuit of happiness, a nation which values privacy as a right. Officer Clancy, pursuing his duty,

may not, without very good reason, invade your private life, not unless you ask him in. Well, why not, I'd like to know. Why shouldn't good old Clancy search our house if he needs to? Do we have something to hide? Listen, everybody has something to hide. Not to sort of thing that would interest the police. They're human, aren't they? No, look here, Flo. If Clancy asked to search our house, he had a reason. And I had a reason not to want him in this house. Maybe you wouldn't mind telling it to me? You know how Clancy is, he talks. When you talk as much as Clancy does, you just do let things slip out. Like what? Do you know what I was doing when he knocked? I couldn't imagine. My hair. So? So there was the evidence sitting right out there on the bathroom counter. The evidence? Good Lord Flo, what have you done? Well, if you think I was going to risk having everybody in this town, no. Well, it isn't anybody's business, but my own, is it? If I use a little henna now and then? Oh, good grief.

Good reason not to welcome a policeman into the house. A bit on the slight side, you may think. More than a bit when you think that the officers' duty may have been concerned with extremely grave matters. Grand theft, say. Narcotics. Maybe kidnapping. Murder. When you think of the rising crime rate, the outrages you read about in every newspaper, the jungle closing in, when you measure a henna rinse against a bloodbath. Yay, God's flow. Whose side are you on anyway? Well, it's a free country, isn't it? Yeah, sure. And the criminal element is taking over. Can privacy be justified in the face of a rising crime rate? Especially privacy cherished merely as a cloak for vanity? Can it be justified? Is it perhaps anti-social to insist upon living in a castle in the 20th century?

Just whose side are you on when you invoke your rights under these words? The right of the people to be secure in their prisons, houses, papers, and effects shall not be violated. These words are not just a literary composition, just as frankfurter of the United States Supreme Court. They're not to be read as they might be read by a man who knows English but has no knowledge of the history that gave rise to these words. Words must be read with the gloss of the experience of those who framed them. Because the experience of the framers of the Bill of Rights was so vivid, they assumed that it would be carried down the spleen of history and that their words would receive the significance of the experience, to which they were addressed. A significance not to be found in the dictionary. Where thieves are king, what chance has an honest man? The pretty world, this in which those who break the law prosper, while those who keep it, they're robbing us blind. Said Englishmen who lived in England 200 years ago,

referring to Englishmen who lived in 13 American colonies. Seven years of war against France just ended had heaped upon the head of every man, woman and child in Britain, a public debt of 18 pounds. In the colonies, defended by that war, the public debt was but 18 shillings per person. Oh, perversion of nature. We're still. New England's prosperity rested firmly and undeniably upon illegal trade, upon overseas shipping, which violated Britain's Trade and Navigation Acts. Why does the government not act? By whatever means, let the laws be enforced. In the name of justice. And so in 1761, law enforcement came to New England. A New England very nearly giddy with prosperity. Even farmers were painting the insides of their houses.

In the cities, old Madera was served from silver trays in the gardens of new mansions to gentlemen wearing lavender weskets and ladies tilting silk umbrellas. Then came law enforcement to spoil a party. LAUGHTER And outraged him, a man's house is his castle. Absolutely regal, Amelia, fit for a king, a perfectly palatial house. You must be very happy, happy as Martha to have fun at your part-life house. Funnish, which gives up no vapor of big oil whatsoever, such beliefs and sisters, you admirably well. How to make do. How ingenious of them to use the fish oil and clay upon floors. The wall paint of crushed cockle shells thinned with barnyard drainage. But while admiring their ingenuity, I am nonetheless happy to have lived long enough to breathe a household air, since it only with the perfumed soaps of France.

In France or Spain or Turkey, a man expects this sort of thing, but Englishmen have rights. The way Englishmen it appears are to be cockled out of our rights. And cockled out of our profits. Not without giving fights, a lie big cobbled. Samuel, your language. Samuel does get so good, Amelia. Jonathan, rude language is one thing I will not abide. I'm not a house is his castle. Oh, dear, and just when everything was going so well, excuse me, dear Martha. Jonathan, I wish to speak to you. Jonathan. Not I, cockled never, I shan't be cockled. In 1761, Mr. Cockle, a minor customs agent in Salem, Massachusetts, endowed the English language with a new synonym for robbed and Anglo-American law with an historic case. Under directions from a higher official named Paxton, Mr. Cockle applied to the superior court of Massachusetts

for some ritz of assistance. Ritz of assistance were general warrants. With them, customs officials would be able to open any door to any house or warehouse, board any ship, read any diary, examine any books, seize anything. Anyone innocent as well as guilty could expect to visit from Mr. Cockle at any time. George III's government was declaring what might be called an open door policy for the enforcement of its trade laws to implement this policy. Its officials would carry skeleton keys, general warrants. There would be little assurance of privacy in New England homes if Mr. Cockle got his general warrants. General warrants are unconstitutional and contrary to the rights of Englishmen. Hand me that quill. Declared James Otis and promptly resigned his crown appointment in order to argue this before the superior court, which had consented to hear argument considering the legality of the warrants Mr. Cockle had requested.

A group of 64 merchants had engaged James Otis to present their case. Fees? In such a case, I despise all fees. BELL RINGS Oye, oye, superior court of Judicature and Boston, Massachusetts is now in session. February 24, 1761. Five red robe and bewig judges seated themselves before the fireplace in the council room of the old townhouse. The merchants were there and a few invited onlookers among them, John Adams, a resident of Braintree and a newcomer to the law whose notes would become the only surviving account of this hearing. Jeremiah Gridley spoke first for the crown, arguing in essence. Assuredly, gentlemen of the court, the common privileges of Englishmen are usurped by the law in this case. But it is the law for all of that. And is it not justified by the necessity of the case

and the benefit of the revenue? Citizens are unhappy when their homes are entered and searched by officials whose duty it is to collect the public taxes. Is not the speedy and efficient collection of taxes of some importance? Blacking revenue, how can Britain support its armies and fleets its government? Indeed, is the collection of this revenue not merely as important, but infinitely more important than the privacy of a few homes? No, I say no, it is not. Insisted James Otis, so it took him five hours to do it. All through the afternoon, he paced the floor of the council room, a loose button dangling from his coat, shirt ruffles, limp and rumpled. His large head angrily thrust forward, the gist of his argument. This writ is against the fundamental principles of English law. A man's house is his castle. In it, he must feel secure. This is fundamental. This is the Constitution. Any act against it, though enacted by parliament itself,

is void. Any act against natural equity is void. Only for felonies may a man's house be entered and searched and then only by a warrant, specifically naming the place to be searched, and that which is to be seized. For general warrants, there is no legal precedent, save that of the star chamber under the stewards. I say this writ is the worst instance of vibratary power, the most destructive of India's liberty and the fundamental principles of law that was ever found in an English law book. This so-called warrant places the liberty of every man in the hands of every petty officer. Bear suspicion alone without oath is sufficient for acquiring such a warrant. Every man prompted by revenge, ill-humour, or wantonness to inspect the inside of his neighbor's house may get a writ of assistance. What is more, this writ may live forever,

having no time limit upon it. When such rites are abroad in the land, every man's house is a public place. Is this justified by the necessity for collecting public taxes? I say nothing can justify this evil, this infamous writ. I say it is forbidden. The merchants approved, but the court was unmoved. Not until the next session in August did it hand down a decision in favor of the rites of assistance. General warrants were used in the colonies, warrants which the colonists viewed as unconstitutional, used to enforce tax laws also regarded by them as unconstitutional. Flames kindled in 1761, what mount toward conflagration in 1776. Here this day, in February of 1761, wrote John Adams, 50 years later.

Here this day, in the old council chamber, the child independence was born. The first American Bill of Rites, that of Virginia, adopted in June of 1776, contained the clause clearly forbidding the use of general warrants. Every Bill of Rites thereafter contained similar provisions, including that of the United States. And no warrants tell issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. No skeleton keys would be carried by officials in this republic. That was the intention of those who framed our constitution. They knew at first hand what it was to fear a knock at the door. They knew that the closed door that made a man's house his castle was essential to liberty and justice for all.

But long before they brought forth their new nation, Englishmen living in England arrived at the same conclusions. Not a year after James Otis made his historic argument in Boston, a new series of political pamphlets appeared in England. The North Britain, published anonymously, but as everyone knew, authored primarily by John Wilkes. Oh, they're perfectly dreadful, man. Dreadful? He's perfectly irresistible. Perhaps you cannot resist an accomplished profligate, but I, dear, quite evidently do not know, Jack. Wilkes, the rake, the wit, number of parliament. Wilkes, as ugly a man has ever lived. I need only half an hour to talk away, my face. Wilkes' most historic shaft was hurled at a new prime minister. George Grenville in 1763. This week was given to the public the most abandoned instance of ministerially frontering ever attempted

to be imposed on mankind. Wilkes in North Britain, number 45, referring to a speech given by the king, but regarded as the speech of the minister. I am in doubt whether the imposition is greater on the sovereign or on the nation. Every friend of his country must lament that a prince of so many great and amiable qualities can be brought to give the sanction of his sacred name to the most odious measures. And to the most unjustifiable public declarations from a throne ever renowned for truth, honor, and unsullied virtue. These ministers this week destroyed it in capable sense. To rule the kingdom with a rod of iron, that's what it's say. Outrageous, an infamous and seditious libel, purporting most assuredly to inflame the minds and alienate the affections of the people from his magic and excite them to traitorous instructions against his government. Well then, should we not? Indubitively. That the writer, printers, and publishers of this sedition shall be apprehended, let a warrant be issued. In as much as these persons are unknown

and reside in unknown places, I assume you mean... Yes, yes, a general warrant. What else? Toward the end of silencing political opposition, two king's messengers carried the general warrant into the streets of London, knocking on this door and that, seizing anything and everything. And came at last to serve their warrant against John Wilkins. This is a warrant. Oh, come, dear fellow. Find and see you, Mr. Wilkins, as you can see for yourself by Lord Halifax himself. Ah, yes, but the Secretary of State has surely made a mistake. Well, anyone can see that he has issued you not a warrant, but a fishing permit. You ought not to play with us, Mr. Wilkins. Indeed, it would be a foolish fish would play with such as you. Tell me, what has been your catch to this expedition? Ah, Ketzer, how many, come, come? How many? Oh, forty or so. Any circumstances one loses count. Forty or so. You fling wide the net, gathering up the big and the little, the wise and the foolish. And some who are not even fish, very unsporting, you know.

We only perform our duty, sir. Which is? Well, serving this warrant. Oh, yes, this warrant. This ridiculous warrant. A warrant against the whole English nation. At the moment, sir, against you. You will come along, piece of leap. I'm afraid I couldn't. Please, sir. No, no, I really couldn't. Very well then. Ready? Ready. Heath of hope. Hope you go, sir. Fisherman beware. This Fisher of Landed may it land you. Take care. John Wilkins, arrested under a general warrant, was carried from his home in a chair and brought before Lord Halifax, who graciously offered him his choice of prisons. Except from friends. It has never been my habit to receive favors. I only ask that you not place me in a cell previously occupied by a Scotsman, for I have an apparent fear of contracting the itch. After a few days in the tower, Wilkins, along with 48 others,

who had been arrested under the general warrant, brought suit in the courts for false imprisonment. Chief Justice Pratt, later to become Lord Camden, awarded substantial judgments against the officials who had issued and served the warrant, saying, Should a higher court find me in errors, I shall submit as will become me and kiss the rod. But I must say, I shall always consider it as a rod of iron for the chastisement of the people of Great Britain. This will teach ministers of arbitrary principles that the liberty of an English subject is not to be spotted away with impunity in this cruel and despotic manner. I mean not only the liberty of all peers and gentlemen, but also what touches me more sensibly, that of all the middling and inferior sort of people who stand most in need of protection. It was mostly the middling and inferior sort of people who carried Wilk's home after his triumph in court. Then and there was born a new popular hero of liberty.

Didn't I tell you, my dear, that he was irresistible? Wilks and liberty, what is that you say, sweet? Why, certainly, I shall be happy to introduce you. Come along. It was the experience of our ancestors in the colonies and in England that general warrants against everybody in general authorizing the search for and seizure of everything in general jeopardized liberty in general. By the end of the 18th century, general warrants were forbidden by law. Only particularized warrants may issue and they only against one whom there is good reason to suspect of a crime or against quarters which may reasonably be expected to contain lawful objects of a search and seizure. Officies of the law may not cast wide the net, gathering up the innocent along with the guilty.

Nor may they go fishing for evidence that might convict a person of a crime. This is the closed door that ensures the privacy of your home. The same closed door ensures also the kind of government and the kind of society to which we as a nation are dedicated. This is history's teaching. When it's officer Clancy at the door, it's government at the door. Government which has the necessary power to protect your property, your life, your freedom or to take them away. If you aren't inclined to think of Clancy in quite that light. Good old Clancy? That may mean that living in castles has become outmoded. Or could it be that your confidence and trust in your governmental officials are instead the measure of the effectiveness of the closed door?

This may be a fishbowl. Yes, Redhead. Passersby may look through it. Neighbors may drop in. Relatives may move in. But officer Clancy? Good old Clancy. Cannot fish here. No, not without my consent. So? So? So why don't you answer the door? To every man his due is produced by radio station WHA of the University of Wisconsin under a grant from the National Educational Television and Radio Center and distributed by the National Association of Educational Broadcasters. Script by Milburn and Elizabeth Carlson, Content Consultant David Filman, Music by Don Vagley, Production by Carl Schmidt. This is the NAEB Radio Network.