In connection with this subject, it is proper to call attention to the provision to be found in some of our more recent Constitutions, forbidding the court to instruct juries in regard to the facts of a cause. So, the Constitution of California declares that "judges shall not charge juries with respect to matter of fact, but may state the testimony and declare the law."* I cannot but regard this as a very unfortunate innovation. The jury loses no small portion of its value when deprived of the aid of an upright and intelligent judge, accustomed to scrutinize, to compare, to analyze and to weigh testimony. Indeed, so long as the right to state the testimony is left, the prohibition becomes almost nugatory; it would be difficult, if not impossible, for the most skillful magistrate so to sum up the evidence as to avoid communicating to the jury his view of the verdict which should be rendered. The provision, I think, comes from a jealousy of the bench, for which no adequate reason can be alleged.† Searches and Seizures.-The provisions in regard to searchwarrants, to be found in both the State and Federal Constitutions, were no doubt suggested by the abuses which experience had shown to result in England, from the practice of granting general warrants issued on suspicion, and without any specification whatever, to search any house, to break open any receptacle, seize, and carry away all or any property. These general warrants were declared illegal in the last century; and Lord Camden's reputation derives no small portion of its luster from the vigor with which he on that occasion defended some of the fundamental principles of liberty. I give below the provisions of several of the State Constitutions on this important subject: Maine.-"The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause supported by oath or affirmation.” * Vermont."That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore, warrants without oath or affirmation first made affording sufficient foundation for them, and whereby an officer or messenger may be commanded or required to search such suspected places, or to seize any person or persons, his, her, or their property, not particularly described, are contrary to that right, and ought not to be granted." + Massachusetts." Every person has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in a warrant to a civil officer to make search in all suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in such cases, and with the formalities prescribed by the laws." Rhode Island.-"The right of the people to be secure in their persons, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing, as nearly as may be, the place to be searched and the person or things to be seized." || Connecticut." The people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."¶ New Jersey." 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 warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the papers and things to be seized." ** Pennsylvania.-"8. That the people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches and seizures; and that no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation." tt Delaware." The people shall be secure in their persons, houses, papers, *Constitution of Maine, art. i, § 5. Constitution of Vermont, ch. i, § 11. Constitution of Massachusetts, part i, § 14. | Constitution of Rhode Island, art. i, § 6. Constitution of Connecticut, art. i, § 8. **Constitution of New Jersey, art. i, § 6. tt Constitution of Pennsylvania,art. ix, § 8. and possessions, from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as particularly as may be, nor then, unless there be probable cause, supported by oath or affirmation." * Maryland.-"That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places or to apprehend suspected persons, without naming or describing the place or the person in special, are illegal, and ought not to be granted." + The provisions above cited are of great importance as guaranties of private right against lawless invasion; but very few cases have arisen in regard to them. I notice some of the most prominent. Where a search-warrant recites an information on oath, that certain described goods have been stolen by A and B, and are in the house of C, it is not necessary that the warrant should state the name of the owner of the goods. But the warrant must describe the persons whose houses are to be entered and the goods which are the object of search. If a searchwarrant for lottery tickets, and a complaint correctly describing the things to be seized, be on the same paper, and the warrant direct the officers to search for the things mentioned in the complaint, the warrant is legal and sufficient, though the warrant itself contain no further description. (a) *Constitution of Delaware, art. i, § 6. + Constitution of Maryland, art. i, § 23. Bell v. Clapp, 10 J. R. 263; see also, as to search-warrants in New York, Beaty v. Perkins, 6 Wend. 382. Sandford v. Nichols, 13 Mass. 288, decided with reference to the provision of the Constitution of the United States on this point, 6th art, of Amendments. Commonwealth v. Dana, 2 Met. 329. (a) Searches and Seizures.-In the following cases, statutes authorizing searches and seizures were held valid. Gray v. Kimball, 42 Me. 299; State v. Brennan's Liquors, 25 Conn. 278; Allen v. Staples, 6 Gray, 491; Stanwood v. Green, 2 Abb. U. S. R. 184. For a case where the warrant was held void for vagueness, see Ashley v. Patterson, 25 Wisc. 621, Where the constitutional prohibition (Art. 6, § 26), is against warrants not based upon probable cause supported by oath or affirmation, the facts themselves must appear upon knowledge. Brown v. Kelly, 20 Mich. 27, 34. An act allowing searchwarrants in aid of civil proceedings, and merely for the discovery of goods, without . provisions for trial of the right thereto, is void. Robinson v. Richardson, 13 Gray, 454. The prohibition of the Constitution, does not extend to a proper and reasonable search or seizure, by persons attempting to execute a military order authorized by the Constitution, and an act of Congress, e. g. an order for the arrest of persons secreting themselves to avoid a draft. Allen v. Colby, 47 N. H. 544. The clauses which we have thus considered, together with that in regard to the obligation of contracts, which we shall examine in the next chapter, are by far the most important provisions that our State Constitutions contain for the protection of the property, liberty, and life of the citizen. They are, indeed, the principal safeguards that our system contains. Many other minor checks upon legislation have, however, been suggested by the gradual acquisition of experience; and to some of the more important of these I now turn the attention of the reader. Taxation.-Under the head of the clause in regard to private property we have had occasion to notice,* that the restraining effect of that limitation has never been applied to taxation; and that, as a general rule, the taxing power has been treated by the judiciary as vested in the absolute discretion of the leg islative bodies. This doctrine has been repeatedly declared, both by the State and Federal tribunals. So it has been said in New Hampshire, that the power of taxation is essentially a power of sovereignty or eminent domain. + So the Supreme Court of the United States have said, that there is no limitation whatever upon the legislative power of the States, as to the amount or objects of taxation. In truth, the wisdom and justice of the representative body, and its dependence on its constituents, furnish the only security against unjust and excessive taxation, except only in those States where express provisions have been inserted in their Constitutions, intended to secure equality and uniformity in the exercise of the power. In these cases, of course, the construction and application of the constitutional check bring the matter, to a certain extent, within the control of the courts. So, in the State of Vermont, the Supreme Court has said, "If the Legislature have the right of taxation over any given property or possession, that power is admitted to be unlimited and uncontrollable, except by their own discre tion." I * Ante, p. 424. Brewster v. Hough, 10 N. H. R. 143. Providence Bank v. Billings, 4 Peters, 514; Brewster v. Hough, 10 N. H. 138; Mack v. Jones, 1 Foster, 393; Blackwell on Tax Titles, In several of the States, however, owing perhaps to the results of experience in regard to the abuse of the legislative power, various precise and specific constitutional restrictions have been laid upon the taxing power. The insertion of these clauses of course brings the subject of taxation within the ultimate control of the judiciary; and the matter is so important that I annex some of the provisions on the subject, to be found in the more recent Constitutions. Michigan." The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law." * Illinois." The General Assembly shall provide for levying a tax by valuation, so that any person and corporation shall pay a tax in proportion to the value of his or her property; such value to be ascertained by some person or persons to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise; but the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, grocery-keepers, toll-bridges and ferries, and persons using and exercising franchises and privileges, in such manner as they shall from time to time direct." † Tennessee." All property shall be taxed according to its value; that value to be ascertained in such manner as the Legislature shall direct, so that the same shall be equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value; but the Legislature shall have power to tax merchants, peddlers, and privileges, in such manner as they may from time to time direct. A tax on white polls shall be laid in such manner and of such an amount as may be prescribed by law." Louisiana." Taxation shall be equal and uniform throughout the State. All property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value on which taxes shall be levied. The Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade, or profession." || California.-" Taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to its value, to be ascertained as directed by law." T Wisconsin." The rule of taxation shall be uniform, and taxes shall be levied upon such property as the Legislature shall prescribe." ** are not the subject of set-off as such. Peirce v. City of Boston, 3 Met. 520. *Constitution of Michigan, art. xiv, § 11. + Constitution of Illinois, art. ix, § 2. Constitution of Tennessee, art. ii, § 28. |