Personal Privacy and the Law 1886

 WARNING: Do not break the law before, during, or after reading anything I mention.   

The following is an excerpt from my article on personal privacy.

     The first time the Supreme Court of the United States elaborated on a concept of personal privacy was in Boyd v. United States, 116 U.S. 616 (1886). On June 22, 1874, Congress sought to strengthen existing revenue laws. The legal issue in Boyd focused on the fifth section of the 1874 act, which gave rise to a Fourth and Fifth Amendment controversy. Language used in the section required defendants or claimants in revenue cases, on behalf of a written motion by a U.S. Attorney, and by the discretion of the court, to produce private books, invoices, and papers, pertaining to violations of revenue laws. Any items obtained in such a manner would serve as evidence in future criminal proceedings (Boyd, 619-620).The respondent in Boyd allegedly subverted the payment of duties when he fraudulently doctored invoices to obtain thirty-five cases of imported plate glass (617). On February 1, 1886, Joseph P. Bradley, Associate Justice of the U.S. Supreme Court (1870-1892), delivered the opinion for a unanimous court. Bradley expressed the idea that the problems raised in Boyd posed “a very grave question of constitutional law, involving the personal security, and privileges and immunities of the citizen” (618).

     The court in Boyd drew a direct connection between the Fourth and Fifth Amendments, and amalgamated them into one comprehensive conception of personal privacy. Both Amendments, Bradley asserted, were connected because unreasonable searches and seizures “are almost always made for the purpose of compelling a man to give evidence against himself” (633). The seemingly compulsive nature of the fifth section of the disputed statute was not just in conflict with the Fifth Amendment. Bradley linked the two Amendments close together by merely stating the act of compulsion described in the Fifth Amendment “is equivalent of a search and seizure – and an unreasonable search and seizure – within the meaning of the Fourth Amendment” (635). This judicial interpretation of the Amendments refurbished and invigorated the text, and increased individual liberties for citizens.

     Bradley extensively quoted from English case law to add color to his argument. He drew from legal concepts expressed in the 1765 landmark decision pronounced by Lord Camden in Entrick v. Carrington. Lord Camden’s opinion, Bradley noted for the court, delineated civil liberties that

affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and personal property, where that right has never been forfeited by his conviction of some public offence, - it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgement. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of a crime or to forfeit his goods, is within the condemnation of that judgement. In this regard the Fourth and Fifth Amendments run almost into each other (630).

Bradley defined a sphere of personal security that was profoundly expansive. He further explained that courts must try to prevent the “unconstitutional practices” of “silent approaches and slight deviations from legal modes of procedure…by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed” (635). Bradley intimated that the judiciary was an active participant in the defense of personal security. The language of the Fourth Amendment did not receive an extensive review prior to Boyd. Bradley’s liberal construction enhanced the importance and scope of what constituted a reasonable search and seizure, a victory for individual liberty and the rule of law.

     Concurring with the decision in Boyd, Associate Justice Samuel Miller (1862-1890), also joined by Chief Justice Morrison Waite (1874-1888), duly noted “[t]here is in fact no search and no seizure authorized” in section five of the 1874 act (639). Miller agreed with the court’s opinion that “the effect of the act of Congress is to compel the party on whom the order of the court is served to be a witness against himself” (639), but his concurrence sounds more like a dissent. Miller explicitly refuted Bradley’s interpretation of the statute.

Nothing in the nature of a search is here hinted at. Nor is there any seizure, because the party is not required at any time to part with the custody of the papers. They are to be produced in court, and, when produced, the United States attorney is permitted, under the direction of the court, to make examination in presence of the claimant. And may offer in evidence such entries in the books, invoices, or papers as relate to the issue. The act is careful to say that “the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid (640).

Miller saw a real problem with Bradley’s interpretation of the legislation. Justice Miller thought the statute in question did not contain a compulsory order to produce books and papers, which did not abridge constitutional safeguards. Miller was alarmed that Bradley expanded the notion of what constituted a reasonable search:

if the mere service of a notice to produce a paper to be used as evidence, which the party can obey or not as he chooses is a search, then a change has taken place in the meaning of words, which has not come within my reading, and which I think was unknown at the time the Constitution was made. The searches meant by the Constitution were such as led to seizure when the search was successful. But the statute in this case uses language carefully framed to forbid any seizure under it (641).

Bradley, on the other hand, agreed in part that the 1874 act “only requires the defendant or claimant to produce them,” but if the defendant “does not produce them, the allegations which it is affirmed they will prove shall be taken as confessed,” which is “tantamount to compelling their production” (621-622).