On illegal searches and seizures 80 years ago


PETER'S NEW YORK, March 11. 2008--G. Herbert Henshaw (1862-1937), Editor of Brooklyn Life from 1905 to 1931 and a staunch opponent of prohibition, which effectively banned alcoholic beverages in the United States from 1920 to 1933, writes in the October 1, 1927 edition of the magazine about illegal government searches that resulted in the deaths of hundreds of Americans. We reproduce his column below.

As seen by Herbert Henshaw

On the whole
we regard the Telegram, under the  Scripps-Howard management, an excellent newspaper, but we cannot commend it as an authority on quotations. Only a little while ago it attributed the axiom, "Eternal vigilance is the price of liberty," to Patrick Henry, whereas it is an abbreviation of an utterance by John P. Curran, the famous Irish statesman, as we pointed out at the time.

Last week Friday, apropos of the dastardly murder of an elderly Maryland farmer by prohibition agents, who entered his house without a search warrant, the Telegram in the course of some very pertinent editorial comment, said:

"Attorney for the defence quoted Blackstone1:--,

'Lightning may strike the house, and snow and rain may fall into it, the wind may blow into it, but the King cannot enter it.'"

If that is what the attorney said, he certainly did not quote Blackstone. As a matter of fact he did not quote anybody. What he apparently did was to misquote William Pitt, Earl of Chatham, who said:

"The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter--but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement."

It is of course immaterial who said it, and it is only another way of saying that "a man's house is his castle," which pronouncement was first made by an English jurist as famous as Blackstone, some three hundred years ago: namely Sir Edward Coke.

What is material is that an Englishman's home is still his castle, but an American's home has evidently ceased to be, thanks to the astounding coup d'étate of the Anti-Saloon League in not only inflicting prohibition upon us, but in depriving us of the protection of the common law as incorporated in the Constitution.

And Mr. McAdoo2 talks about "preserving the integrity of the Constitution," while law enforcement has ceased to mean any thing but enforcement of the Volstead Law3.

What Chatham meant when he said the King cannot enter the poorest man's house, was assuredly not that it was physically impossible for him to do so; but that he would not dare, for if he did, the poorest man could muster to his support the whole power of the state by evoking the common law which, as incorporated in our Federal Constitution, reads:

"The right of the people to be secure in their persons, houses papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall 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."

Neither the King of England nor any official of the realm dare cross the threshold of an Englishman's home uninvited without a warrant issued upon probable cause and supported by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized and if any one of them attempted to do so by force, the owner of the house would be entirely within his rights if he killed the trespasser and would be acquitted of manslaughter by any jury in the land.

But the dirty grafters employed by the United States government as prohibition enforcement agents have crossed the thresholds of many an American's home without any license whatever since the prohibition law went into effect, and in a number of instances have murdered the owner of the house for resisting their invasion, without incurring any penalty at all.

The recent case of the Maryland farmer is no isolated one. We could cite many others, if we had the space.

These ruffians chartered by the government cannot cross our thresholds any more than forces of the crown can cross the threshold of an Englishman's house; but they do. It is like the prisoner who in reply to the statement that they could not send him to jail for what he had done, replied: "But I am in jail."

We cannot see how even the most devout believer in enforced total abstinence can be bigoted enough to be indifferent to so shocking and humiliating a retrogression from the principles on which this government was established, or how any American worthy of the name can help but blush for his country in the face of the things that are being tolerated in the cause of prohibition.

As indicative of what a change has taken place in the respect of public officials for the Constitution we recall the horror and amazement depicted on the countenance of a village constable on Long Island at the suggestion some ten years ago, that he should look for evidence of a robbery on the premises of a family with a very bad reputation, several of whose members had jail records.

We had been the victim of a robbery and the constable had been working on the case, but had found no clue.

On the strength of their previous record, however, he suspected the family previously referred to and suggested to us that we go to their place, which was about a mile distant, and on some pretext, such as to buy eggs or vegetables, take a look around to see if we could identify any of our stolen property, in which case he could issue a search warrant. When in response we remarked: "Why not send one of your own men to take a look around?" he nearly threw a fit. "My God," he exclaimed, "I couldn't do that. Don't you know it would be against the Constitution for me or any of my men to set foot on the place without a search warrant?"

Is it a less outrageous violation of the Constitution for an officer of the law to trespass on the property of a citizen in search for evidence of a violation of the Volstead Law, than in search for evidence of burglary, or any other actual crime or is the awe in which the constable to whom we have alluded stood of the Forth Amendment a thing wholly of the past?

It is the supineness, or apathy, of the people toward this extremely ominous state of affairs that causes us the very genuine concern we feel for the future of our native land. To us it is incomprehensible. Can it be that we have reached the stage which Goldsmith described when he wrote:

"Ill fares the land, to hastening ills a prey
"Where wealth accumulates and men decay."

So far as the Fourth Amendment is concerned it seems that our courts have even gone so far as to nullify it in the interests of prohibition by declaring that it applies only to houses and not to persons, papers and effects, but are the courts superior to the Constitution? We think not. At all events, we reserve our constitutional right to defend ourselves as best we can against any holdup man as well as housebreaker, whether he wears a badge of office or not, and we shall continue to regard the killing of a citizen by an official acting in violation of the Fourth Amendment as murder and the killing of such an official by a citizen in defense of his constitutional right to be secure in his person, house, papers, and effects, as justifiable homicide.

For "100 Per Cent Americans" Only
Since writing the preceding paragraphs our American, or perhaps merely our inherited Anglo Saxon, sensibilities have been further disturbed by reading a Washington dispatch to the World, printed in last Monday's edition, in which it is stated that the murder of the poor old Maryland farmer, Charles P. Gundlach, accused of nothing worse than brewing a little beer for use in his home, is so far from an exceptional case that more than 200 such murders have been reported to the authorities in Washington since prohibition was inflicted upon the country, that of these, manslaughter or murder charges were brought against the criminal employees of the Federal government by State authorities in only 57 cases and in only three of these cases did the criminals fail to escape punishment entirely. Two , of the only three convicted, got but three years imprisonment for a crime the usual penalty for which is death or life imprisonment, while the third ruffian was pardoned by the then Governor of Massachusetts before he had served a day in prison.

Put that in your pipe and smoke it, you hot air artists, who profess to be to be 100 per cent, red-blooded, two-fisted Americans. If you can contemplate this with equanimity you had better brag about something else than your Colonial or Revolutionary antecedents.

It seems, according to this dispatch, that the reason the blackguards employed as law enforcements agents by the prohibition department of the Government enjoy such immunity in the commission of major crimes and have so little fear of flouting the Constitution, is that they are protected by the Federal government and instead of being tried in the courts of the state in which the crimes of which they are guilty are committed, they are tried in the Federal courts, the ostensible prosecutor being virtually the attorney for the defence, for instead of representing the People against the defendant, he represents the defendant or the Government against the People.

In other words, in its attempts to enforce one unpopular law, our Government employs persons of such disreputable character that they could not get a job in any respectable department of the Government and then defends them for violating even the most fundamental laws of the land and rights of its citizens. The disreputable character of its employees is freely admitted even by the heads of the prohibition department. They will never be any better because the work is of such a despicable character that no honorable man could be induced to engage in it, and it is, in fact, questionable whether any kind of enforcement of the so called 18th Amendment [4], however weak or ineffective, can be reconciled with respect for the Bill of Rights or the ten first amendments, the inclusion of which in the Constitution was insisted upon by the people as an indispensable condition precedent to their acceptance of it.

Let those who grow incensed because some one fails to stand up when the national anthem is sung, or omits to salute the national colors, smoke up on this also and consider seriously whether the time may not be approaching when neither the anthem nor the colors will symbolize anything but dead traditions of liberty.

If there is any treason in what we have here written, anybody who cares to can go right along and make the most of it. If prohibition has wrecked the Bill of Rights, needless to say, there is nothing to prevent our being convicted of treason in a Federal court for accusing the Government of employing crooks and grafters and defending them when charged with violating its own laws. A term in a penitentiary for standing up for the rights for which our forefathers fought and died, would, in our opinion, be as high an honor as the Government could possibly confer upon a citizen.

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1. Sir William Blackstone (1723-1780), British jurist.

2. William G. McAdoo (1863-1941) was a U.S. senator, a secretary of the treasury (1913-1918), chairman of the Federal Reserve Board, and one-time contender for the democratic nomination for U.S. president. He was a supporter of prohibition.

3. The Volstead Law, also called the Volstead Act, was passed by the U.S. Congress in 1919 over the veto of then-president Woodrow Wilson. It prohibited the manufacture and possession of beverages with an alcoholic content exceeding 5 percent. It became mute after the 18th Amendment to the Constitution was repealed by passage of the 21st Amendment.

4. The 18th Amendment to the U.S. Constitution prohibited the manufacture of or trade in "intoxicating liquors." It went into effect in 1920, and was repealed in 1933.

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