ARBITRARY SEARCHES AND SEIZURES been complained of by the colonists if the same had been done by due process of law, and not arbitrarily and by others than ju dicial officers. It was also, perhaps, the arbitrary and unjudicial method pursued in the Wilkes and Entick cases that was complained of rather than the entry itself.1 The contemporaneous construc tion of the Federal Constitution would certainly lead to this conclusion, as the right to enter and seize goods smuggled in violation of the revenue laws and to seize contraband whisky has always been insisted upon.2 "Certain articles, while used for lawful purposes, may," says the Supreme Court of Maine,* "be subject of forfeiture and destruction under proper statutory provision if their use is deemed pernicious to the best interest of the community. And when such articles are attempted to be used for unlawful purposes, or in an unlaw ful manner, and the attempts are so con cealed that ordinary diligence fails to make such discovery as to enable the law to de clare the forfeiture, the statutes authorizing searches and seizures have been held legiti mate." "The exercise of this power," the court, however, goes on to say, "must be properly guarded, that abuses may be pre vented and that a citizen shall not be de prived of his property without having an accusation against him setting out the nature and charge thereof, and but by the judgment of his peers and the law of the land." It will be noticed that in the cases men tioned the things sought to be seized or the practices prevented are things and prac tices which have shocked the moral sense of the community; they are things and practices against which the churches have fulminated, behind which there has been no great show of respectability, no leading
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citizens, no manufacturers' associations, no great accumulations of capital. So, too, the things and practices have come in the main within the term "nuisance." We have, however, as before suggested, in addition to extending the scope of the search warrant, also by legislative enact ment everywhere extended the exercise of inquisitorial power, and have every where provided for entries and inspections without warrant and without legal formality. We, too, are now proceeding against things and practices which are mala prohibita rather than mala in se, which are a violation of man's duty toward man as a fellow and a brother and of his social obligations towards him rather than against things and prac tices which are merelv violations of private property rights or which tend to breaches of the public peace. Everywhere, for in stance, our statutes provide for the inspec tion of factories, workshops, and mines, in order that the provisions of the law may be enforced which prohibit child labor and which require machinery to be guarded and the health and safety of the employee promoted. So, too, we have statutes pro viding for the inspection of passenger ele vators, of fire escapes, and of buildings generally; we -have statutes which provide for the inspection of milk and cream and for the sampling and examination of all kinds of food. Ever and anon also legis lative commissions are appointed with the power to inspect and to examine into the affairs of private as well as of public corpora tions. Are such searches and seizures or entries or inspections constitutional? Do they infringe upon the guaranty that no man shall be compelled to incriminate himself upon the right of privacy? Is privacy in all instances an inalienable right? Such stat utes certainly trench upon the old theory of 1 Though Lord Camden intimated that the papers in question could in no case be seized even property rights and do serious violence to under a proper •warrant. See opinion in cases. the doctrine of laissez faire. Are they reasonable as that term is used in the consti 1 Henderson's Distilled Spirits, 14 Wall. 44. tution? Was that term used only to cover 1 Gray v. Kimball, 42 Me. 299, 307.
