Page:The Green Bag (1889–1914), Volume 18.pdf/305

 278

THE GREEN BAG

changed, has changed in the spirit with which men regard it and therefore in its own spirit."1 An insistence must be made upon the fact that the Constitutions, state and national, merely prohibit unreasonable searches and seizures; that the ethics of the times have changed; that the state is becoming a protector as well as a lawgiver, a guardian as well as a policeman, and that the term "unreasonable" must be construed in this light. So, too, the premise must be conceded (and this is a premise far reaching, revolutionary in its logical results) that no man, no master, no owner of property has a natural or constitutional right to manage his business or his property as he pleases; that where human life and human health and the welfare of society as a whole, in which the individual, however humble, is an important element,2 are concerned, the 1 A statute, said the late Judge Coolcy, after factory and the workshop, and the store enumerating cases where search warrants were and the mine are not castles, nor sacred, recognized by the common law, " which should permit the breaking and entering a man's house, whether the home be or not; and that all and an examination of books and papers with a businesses in which lives are risked or view to discover the evidence of crime, might pos morals are affected, or social happiness sibly not be void on constitutional grounds in and prosperity are at stake, or the welfare some other cases; but the power of the legislature

those searches and seizures and entries and examinations which were known to the common law, and should all others be deemed unreasonable?1 To justify these acts an insistence must •be had upon an elastic construction of the constitution, and the premise must be adopted that although that instrument did not guarantee any rights or privileges which were not enjoyed at the time of its ratification it certainly did not guarantee that all uses of liberty and of property then indulged in should be perpetuated. It did not guarantee the existence for all time of the morality and the civic and social conscience then existing. The theory of Mr. Bryce must be adopted, when he said that "The American Constitution has necessarily changed as the nation has

to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers ex posed to prying curiosity, and to the misconstruc tions of ignorant and suspicious persons, and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against the enactment of such laws is to incline to the side of safety. In principle they are objectionable; in the mode of execution they are necessarily odious; and they tend to invite abuse and to cover the com mission of crime. We think it would generally be safe for the legislature to regard all those searches and seizures 'unreasonable' which have hitherto been unknown to the law, and on that account to abstain from authorizing them, leav ing parties and the public to the accustomed remedies." Cooley, Const. Lim. (th ed.) 432.

1 i Bryce, American Commonwealth, 389. 2 " It may not be improper to suggest in this con nection, that although the prosecution in this case was against the employer of labor, who apparently under the statute is the only one liable, his defense is not so much that his right to contract has been infringed upon, but that the act works a peculiar hardship to his employees, whose right to labor as long as they please is alleged to be thereby violated. The argument would certainly come with better grace and greater cogency from the latter class. But the fact that both parties are of full age and competent to contract does not necessarily de prive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. The state still retains an interest in his welfare, how ever reckless he may be. The whole is no greater than the sum of all the parts, and when the indi vidual health, safety, and welfare are sacrificed or neglected, the state must suffer." See opinion in the Eighth Hour case of Holden v. Hardy, 169 U. S. 366, 395, 398.