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tice. Discriminations as between individuals, however, must rest upon some principle, or they will be illegal. In illustration, the case of a poll-tax upon adult male persons may be
taken. These are sometimes levied, and they may be con[*294] sidered *a compensation for the privilege of suffrage
which males possess exclusively. But a discrimination between the sexes in the taxation of their property would be plainly inadmissible.
Unlawful Searches, Etc. An important civil right is intended to be secured by the provisions incorporated in the National and State Constitutions, which, in substance, declare that unreasonable searches and seizures shall be unlawful, and that all persons shall be secure in their persons, honses, papers, and effects against them. In their origin these provisions had in view the mischiefs of such oppressive action by the government or its officers, as the seizing of papers to obtain the evidence of intended crimes;" but their protection goes much beyond such cases: it justly assumes that a man may have secrets of business, of friendship, or of more tender sentiments, to which his books, papers, or letters may bear testimony, but with which the public have no concern; that he may even have secrets of shame which are so exclusively his own concern that others have no right to pry into or to discuss them. An unlawful search and seizure is an aggravated trespass, and should be visited with corresponding damages. Many provisions of law are made to protect against it. Search warrants are allowed to be issned only after a showing of legal cause under oath to the satisfaction of a court or magistrate ;' it is made a criminal offense for one person wrong. fully to open another's letters; the postmaster who detains or pries into letters is liable in damages for so doing; and the law might, with the utmost propriety, surronnd correspondence by telegraph by like securities. It has generally done so, to the extent of requiring of the persons through whose hands such correspondence may pass, the observance of secrecy; but it has been
Such as seizing the papers of Algernon Sidney in order to find among his political speculations something which could be construed into treason; or those of John Wilkes to get possession of intended libels.
• 2 Hale, P. C. 113; Bishop, Cr. Proc. Ch. XVIII.; 3 Wharton, Cr. L., &$ 2937–2946 ; 1 Archbold, Cr. L. 143; Cooley, Const. L., 299308.
held that they may be compelled to produce telegrams in evidence, and testify concerning them in courts and before legislative committees."
*Search Warrants. The only lawful mode of mak: [*295) ing search upon one's premises is under the command of search warrants; and these are allowed to discover stolen or smuggled goods, or implements of gaming, and in a few other cases for which provision must be found in the statutes. The authority to issue them is liable to great abuses, and the law is jnstly strict regarding their requirements. They must be duly issued by a court or officer of competent jurisdiction, and if it does not appear by the warrant that a proper showing was made before it was issued, the warrant can afford no protection to the officer executing it.' The warrant must also describe particularly the place to be searched, and leave nothing to the discretion of the officer in this regard ; . and if property is to be searched for, it must describe particularly the property.. The officer in executing the warrant must not go beyond its authority to search other buildings, or to seize other prop
* State o. Litchfield, 58 Me. 267; Hensler o. Freedman, 2 Pars. Sel. Cas. 274; National Bank o. National Bank, 7 W. Va. 544; Woods o. Miller, 55 Ia. 168; U. S. o. Hunter, 15 Fed. Rep. 712. Ex parte Brown, 72 Mo. 83; Gray, Com. by Telegraph, Ch. V.
* Grumon o. Raymond, 1 Conn. 40; Commonwealth o. Lottery Tickets, 5 Cush, 369; State o. Staples, 37 Me. 228; State o. Carter, 39 Me. 262; Jones 0. Fletcher, 41 Me. 254.
• Humes o. Taber, 1 R. I. 464; Reed 6. Rice, 2 J. J. Marsh, 44; Sandford 9. Nichols, 13 Mass. 286; People o. Holcomb, 3 Park Cr. R. 656; State o. Robinson, 33 Me, 564; Ashley o. Peterson, 25 Wis. 621. For instances in which the description was held insuf. ficient, see Meek o. Pierce, 19 Wis. 300; Commonwealth o. Dana, 2 Met. 829; Dwinnels o. Boynton, 3 Allen, 310; Commonwealth o. Intoxicating Liquors, 6 Allen, 596. A warrant to search a building and outbuildings
does not cover a separate building in another enclosure but connected by a covered passage way. Com. o. Int. Liquors, 140 Mass. 287. “The house and premises of E. D. of G.” is enough, there being but one E. D. in G., and he owning but one house there, which was searched. Wright 0. Dressel, 140 Mass. 147.
• State o. Robinson, 33 Me. 564; Commonwealth o. Intoxicating Liq. uors, 13 Allen, 52; Downing o. Porter, 8 Gray, 539. See, also, cases cited in last note. The warrant will be good if the description is sufficiently accurate to enable the officer to identify it. Downing o. Porter, 8 Gray, 539. If the description in the complaint is sufficient, and the warrant refers to that, it will be sufficient. Dwinpels 0. Boynton, 3 Allen, 310.
• McGlinchy o. Barrows, 41 Me. 74; Jones v. Fletcher, 41 Me. 254; Downing o. Porter, 8 Gray, 539.
erty; 'but he is no trespasser in seizing goods which answer the description, even though they prove not to be the goods intended.' Neither is he a trespasser in any case if the warrant is sufficient in its apparent requisites and he simply obeys its command.*
In respect to the disposition of property seized under [*296] a search *warrant, no more than in respect to where he
shall search or what he shall search for, can the ministerial officer be vested with a judicial discretion. He cannot, therefore, be empowered to destroy property kept for an illegal purpose, without any judicial determination on that subject."
Invasions of Political Rights. The citizen might be deprived of his right to meet and discuss public affairs, either by the action of private individuals, or by that of the public authorities. In the former case the means resorted to for the purpose of defeating the right would determine the nature of the remedy. Thus, persons might wrongfully and by force be removed from a place of meeting, or they might, by threats or other means of intimidation, be prevented from meeting; in the one case there would be an aggravated trespass, and in the other a wrong perhaps equal in degree, but which, being accomplished without force, must be redressed in an action on the case. When a meeting for any lawful purpose is actually called and held, one who goes there with the purpose to disturb and break it пр,
and commits disorder to that end, is a trespasser upon the rights of those who for the time have control of the place of meeting. If several unite in the disorder, it may be a criminal riot. It is difficult to indicate the particular methods in which the right
· Crozier o. Cundey, 6 B. & C. 232; Stone o. Dana, 5 Met. 98.
2 Stone o. Dana, 5 Met. 98.
3 Humes v. Taber, 1 R. I. 464; Bell 0. Clap, 10 Johns 263; Dwinnels o. Boynton, 3 Allen, 310; Sandford 0. Nichols, 13 Mass. 286. But case will lie against the complainant if he has obtained the warrant without probable cause, and from malicious mo. tives. Beaty v. Perkins, 6 Wend. 382; Luddington o. Peck, 2 Conn. 700; Watson v. Watson, 9 Conn. 140.
* Fisher 0. McGirr, 1 Gray, 1; Greene o. Briggs, 1 Curt. 311; Hibbard o. People, 4 Mich. 125. In the recent case of McCoy o. Zane, 65 Mo. 11, the court avoid this point, but they hold that an officer is not protected in seizing and destroying, under a search warrant, gaming implements which were not in fact kept for gaming purposes; the law only authorizing the destruction of those so kept.
of petition may be violated, and every case will be likely to present new facts. Parties interested in and circulating petitions doubtless have a qualified property in them while in their possession, the disturbance of which may be redressed by suit. The disregard of petitions or remonstrances by the persons or bodies to whom they are addressed is of course only a political wrong.
Suffrage. The chief political right is that of suffrage. The ways in which this may be invaded are numerons, and while all of them are wrongs to the political society, and are or may be made punishable under the penal laws, only a portion of them can support a private right of action. The reason for this will *be apparent when the cases are enumerated. [*297] The following may be instanced as cases in which an individual entitled to suffrage is deprived of the right:
1. Where officers have wrongfully neglected or refused to take the necessary preliminary action to enable an election to be held.
2. Where, by forcible or riotous proceedings, the holding of an election has been prevented.
3. Where illegal votes are received which control the result.
4. Where, by the illegal conduct of the officers, or of other persons, the ballots are destroyed, or in some other manner it becomes impossible to determine the result, whereby the election is defeated.
In each of these cases it may be said the individual elector is wronged, but he is wronged only in the same manner and to the same degree with all others. There is a general injury to all, but no special and particular injury to any one. Consequently the injury is only to the public, and must be redressed in a criminal prosecution. Moreover, in the third case specified, the idea of individual injury is excluded if the elector has actually exercised his own right by depositing his ballot. All other interest is then general. In a legal sense one citizen has exactly the same interest with any other in having effect given to the will of the majority of the electors, as it has been expressed in legal ballots, and it would be contradictory to the theory of our institutions to assume that only those voting for the candidate receiv. ing the highest number of legal votes were interested in his receiving the office for which he is thus designated. An election is only a means of ascertaining, in a formal manner, what the will of the electors is, and when that will has been legally expressed, it is to be presumed that every citizen is desirous and interested to give it effect. No legal principle which assumed the contrary could for a moment be admitted.
In the following cases the injury might be more direct and personal:
1. Where the elector, by force or threats, is kept away from the poll.
2. Where the officers, by wrongful decisions concerning his qualifications to vote, deprive him of the right. 3. Where officers or others wrongfully invade his right to
secrecy. [*298] *In the second of these cases it will be shown, in a sab
sequent chapter, under what circumstances an individual remedy may be had.' In the first, if force is employed, there is an aggravated trespass, and if it was not employed, the right of action, we take it, would be plain, if the terror excited by the threats were such that a reasonable man would have been deterred from the exercise of his right. In the third there would be more room for controversy.
An elector in this country has not only a right to vote, but he has a right to exclude others from a knowledge of how he votes. The purpose in establishing voting by ballot is to give him this right, in order that, in his action, he may be perfectly free, aninfluenced either by the fear of giving offense, or by the desire to please. His riglit is therefore invaded when his secrecy is uncovered.' But there are no cases in which it has judicially been deterinined what facts make out such an invasion, or at precisely at what point the rude indulgence of one's curiosity, which is always an impertinence and an incivility, becomes also an illegal act. To look over one's shoulder while he is preparing his ballot might be thought a rudeness merely, as would be a like act when one is writing a private letter. Besides, at this stage, the act is incomplete; the elector may change his ballot entirely; and if one only discovers how the elector at one time has contem
See Ch. xiv., p. *413, et seq. 2 People o. Pease, 27 N. Y. 45; People 0. Cicott, 16 Mich. 283; State o.
Hilmantel, 23 Wis. 422; Williams e.