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Defending the Family Castle, Part II

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By:Thomas Fleming | March 26, 2014

It was the invasion of property more than the taxes and confiscations themselves that annoyed the Americans and prepared them to resist the Stamp Act. It was not money per se, but the sacred rights of property that were at stake. If a man cannot be secure in his home, he cannot be comfortable in his mind, and it is out of such discomfort that treason and rebellion are hatched.

The memory of abuse was still fresh during the debates on the proposed Constitution.  Many people were afraid that the document did not sufficiently protect the rights for which the Americans had fought. In Massachusetts, the sister of James Otis, Mercy Otis Warren, demanded a bill of rights "to save us from such a detestable instrument of arbitrary power, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure." This formidable lady—who inspired fear in both John and Abigail Adams—was equally adamant on the right to bear arms.  She was not alone. Both New York and Virginia demanded inclusion of what would become the 4th amendment guaranteeing "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." And at the first meeting of the new Congress, James Madison—who had initially opposed the idea of a Bill of Rights—told the members that the union could not survive unless these demands were met. The Fourth Amendment was drafted and passed with language that makes it very clear that it was a response to specific abuses:

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.

There are law-and-order conservatives who have grown to dislike the 4th Amendment, because it has been used to shield criminals. But the amendment was never meant to be applied to the states, much less used to protect felons: In fact, it was primarily intended to protect property against the irruptions of tax collectors and other federal snoopers and not to interfere with policemen pursuing murderers, rapists, and robbers. It was not really even designed to protect persons. On the contrary, the main purpose was to bolster the security of households and business establishments against government agents wanting to look at your papers. Like every other protection guaranteed in the Bill of Rights, the Supreme Court has made it a dead letter.

"A man's home is his castle" is a proverb that meant something in the Middle Ages, when castles enabled a baron or knight to bar his doors, lift up the drawbridge, and bid defiance to his enemies, up to and including the King. By the end of the Middle Ages the concept of the castle was extended to every house in England. Writing in the early 17th century, Sir Edward Coke—among the greatest legal experts in British and American history—declared: "The house of every one is to him, his castle and fortress, as well for his defence against injury and violence as for his repose." The officers of the crown could not force their way into the home on some trivial pretext. If they did, they were prosecuted. A man might accumulate huge debts, but so long as he did not leave his home, his person was safe. How many 19th century English novels include a bailiff-wracked debtor who cannot leave his own home?

Felons were, of course denied this right of sanctuary. As Blackstone observes: "No outward doors of a man's house can in general be broken open to execute any civil process; though in criminal cases the public safety supersedes the private."  Nonetheless, even an accused felon had to be notified by the officers of the law that they were entering the house to arrest him.

There were other implications of the doctrine. Since a man's home was supposed to be an inviolable sanctuary, it was a crime to enter without the householder's permission, and if the trespasser stole something, the punishment was greater than if he had committed his theft in a public place. I once served on a jury, trying a group of adolescents and young men who had broken into a house, robbed and beaten an old woman, and shot her son (a man in his 50's) in the stomach. In the end the judge instructed us to find them guilty on all counts except burglary, which still carried the appropriate sentence of life at hard labor. Here in Illinois, unlawful entry into a residence for the purpose of theft is a Class 1 Felony, while ordinary thefts of under $500 are generally misdemeanors unless committed in a school or church or directly on the victim's person.

To defend his home from aggression, the householder could use deadly force against a thief or his wife's lover.

Until recently, this tradition persisted in Texas and Utah where a man could not be indicted for killing his wife's lover, and even today it is hard to get an indictment in Texas. Only a few years ago, a Texas husband shot his wife's lover, after his wife had screamed rape. The husband could not be indicted, but the wife was given five years in prison for telling a lie to incite violence.

A home-castle, then, was something like a fortress that could resist intruders with force and, except in cases of felony, deny entrance to government agents. It was not a mere building but a legally privileged institution, which could not be confiscated at the whim of the ruler or his government, as homes are today. Only compelling necessity such as war or plague justified the exercise of eminent domain. 

 

This is the text of the annual Ides of March Lecture, delivered on March 13, 2014.

Comments

 

 
David Wright
wyandotte
3/26/2014 06:28 PM
 

  I draw some small comfort from your Texas references. Still sad how far we have lost rights so dear to many of us.

 
 
Robert
Mudville
3/26/2014 07:59 PM
 

  While it is true the beginning of common law provided peasants with a "legal" recourse against lords who sought to abuse their powers, the reader can be assured that before common law there was a higher law called tradtion and custom which most folks respected with much greater regularity and devotion than any of our poor land lords today. Before "rights" became 'self evident" or codified into law, more times than not especially in the old christian commonwealth, they had been practiced and recognized

 
 
robert m. peters
Coushatta
3/26/2014 08:12 PM
 

  The understanding of the home-castle was written on the hearts of my ancestors as late as my father's generation, at least among most of them in these peculiar climes; however, as heats have withered so has that understanding. There are those of my generation and younger generations who would magically quicken this historical understanding with statutory law embodying the old understanding of home-castle; however, a statutory application of that understanding does not resurrect it to new life but brings it forth as a zombie, a grotesque facsimile which can be wiped away at the next legislative whim. It is not unlike to tradition among our folks to pull over to the side of the road as a funeral procession rolled by taking the deceased to his last resting place. It was done out of respect to a life lived, a life now gone and as a salute to the deceased and his family. That tradition, written on our hearts, also died as our hearts withered. A few year ago, legislators in our fair state shocked it alive with a statute which makes pulling to the side of the road during an oncoming funeral procession a law with fines if not heeded. A few months ago one of my students asked me why we had such a stupid law that made us pull over even if we did not know the deceased. It was a good question about the current state of the "law" and about the state of her own heart. The home-castle can only be defended with the right heart and the martial means befitting of the time, not by laws.

 
 
David Smith
Montgomery County
3/26/2014 09:00 PM
 

  While it may be necessary to fight some of our battles legislatively, the real fight is indeed in our hearts. There must be a return to Law, not mere legality!

 
 
Clyde Wilson
Columbia
3/26/2014 09:36 PM
 

  Let's never forget that the great conservative Republican party in its rise to power 1861--1876 totally trashed the rights referred to. One instance among thousands: A Baton Rouge lady tried to enter her home and a Yankee colonel who wanted the house held a pistol to her head, harangued her viciously, and threatened to kill.

 
 
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