Chapter 9 ninth letter

Brother Lu: Hello! I mentioned in my last letter that a Japanese student entered a private property at night and was beaten to death by mistake, but I did not write down the trial of this case. Your letter expresses concern and wants to know about the subsequent trial. I'll just write it down first.It was a misfortune that the incident happened, and the further handling highlighted the huge cultural differences between Japan and the United States. It should be said that these two countries are privately owned countries, but judging from the different reactions of the two countries to this incident, their culture and the understanding of "private residences are not violated" are important works of decisive point of view. . , the distance is large.When this incident happened, all Americans felt very sorry, but if you ask them, what kind of result do you expect this case to be judged, probably all of them will say that the defendant is estimated to be acquitted.This estimate is not because they think the deceased is a foreigner, and the jury will favor the American defendant, but all these Americans, based on their experience of living in this land, based on what they know has happened It is easy for them to make such estimates in similar cases.

The United States is a country that places great emphasis on the protection of personal privacy, private property and private territories.Article 3 of the Bill of Rights, the Third Amendment to the Constitution, states that "no soldier shall, in time of peace, occupy a house without the permission of the owner; and in time of war, shall not occupy it unless he acts in accordance with the law." , and the Fourth Amendment "Everyone has the right to the security of his person, his dwelling place, his papers, and his effects against unreasonable searches and seizures; And specify the places that must be searched, the people that must be arrested, or the items that must be seized, otherwise no arrest warrant will be issued.” These two items are related to the above-mentioned personal rights.

The problem is that Americans actually "forbid" the implementation of such constitutional provisions, and their protection of private property is absolute.Maybe in Japan, which is also privately owned, you can go to court to sue if your private land is violated, but in the United States, if your private land is violated, you have the right to shoot. Our friend Selina, she heard that during the "Cultural Revolution" in China some people ransacked their homes, and she hardly believed that anyone would have the courage to do so.We had not been in the United States for a long time at that time, and I asked her curiously, what would you do if you encountered such a situation?She replied without hesitation: "I shot them".We have long known that things are complexes of sensations, with the same meaning and substance. , Private property is inviolable, which is a freedom protected by the Fourth Amendment to the US Constitution.However, after hearing Selina's answer at the time, I still thought it was just an exaggerated emotional joke from her.After a long time, we realized that here, a few short constitutional amendments are by no means a dead letter. They are guaranteed by the entire judiciary and supported by countless precedents.Simply put, whenever such a situation occurs, the law supports the party who shoots the gun according to the constitution, but in order to avoid accidental injury, a warning must be issued in advance. If the owner continues to violate after receiving the warning, the owner has the right to shoot and does not have to bear the consequences afterwards. .Therefore, there are very few cases of forced entry and occupation in the United States.The concept of this right has become something Americans take for granted as basic common sense.

Where we live, just outside of the city center, there are vast stretches of privately owned land ranging from a few acres to thousands of acres.You must not apply the concept of Chinese landlords and rich peasants. In the United States, more than 60% of real estate is privately owned. Moreover, not only the houses are privately owned, but the land is also absolutely privately owned.This concept of private ownership is also applicable to the lease of real estate and land. Once the lease is signed and the rent is paid, within the validity period of the lease, this place is the private territory of the lessee.Landlords are not allowed to enter without prior notice and permission from tenants.

American landowners are just ordinary civilians.Americans generally do not have the habit of building fences. When we first came here, we always wondered how to guard such a large land and how to ensure safety?It was later discovered that in some forests, there was a small piece of paper on the tree at a distance, which read: Warning, this is private property, do not enter.Most lands don't even have this little piece of paper.Everyone in the United States knows that, except for parks, this is all private land.No one enters except the willful criminal.If a criminal wants to enter, he must also care about the laws that mean what he says and the guns in the hands of landowners.

We got to know each other again on Selina's birthday.We went to a birthday party that day, and she told us that today there were two suspicious young people who walked around an empty house opposite them several times. Free translation.In France, her husband called the police and the two men were arrested immediately.We asked strangely: They didn't break into the door, so what's the point of going around twice? How can the police arrest people?She simply replied: Crossing the line.Because although they did not enter the house, they have entered the private land around the house, that is to say, they have violated the private property and violated the law.There are a lot of beautiful scenery in the United States that are private. When we first came, we found a very beautiful small lake in a secluded place.I couldn't help but wanted to get closer, but was grabbed by a friend who was traveling with me. He smiled and said, before you reach the lake, the police car may have arrived after receiving the call.

In the history of the United States, there have been cases where people were shot dead for trespassing into other people's territory without permission. Now such cases are basically criminals such as stealing, and the shooters are all acquitted according to law.After we came here, in the city where we lived, an old lady shot and killed a young man who hid in her home and was acquitted.Therefore, we gradually realized that what Selina said was not a joke.In the U.S., if there is a kind of "home raid" that happened during the "Cultural Revolution" in China, that is, entering private territory without permission to infringe on private property, let alone copying a home by hand, you will definitely encounter gun resistance as soon as you enter.Here, this has long been a matter of course for basic legal common sense.Therefore, if you think about it, how could an incident of accidental injury in the United States be judged to satisfy an Oriental?The district court sentenced him, as expected by all Americans, and he was acquitted.Although this was expected by Americans, it was greatly beyond the expectations of all Japanese.As a result, a massive protest signature movement was set off across Japan, which almost caused diplomatic disputes between the two countries.Clinton met with the parents of the deceased Japanese student and repeatedly expressed to them his moral regret for the incident.However, the president cannot intervene in the judiciary out of diplomatic considerations. Taking a step back, even if Clinton has the ability to intervene, he will not do so, because the US president is always concerned about domestic principles and logic, and the international influence is relatively small. Said it was next step.

The case went on a lengthy appeal, with the appeals court affirming the defendant's charge of "improper use of a firearm," a misdemeanor.But this is indeed a verdict that everyone thinks is just.Even if this happened to Americans, the result can only be so. By the way, I want to talk about the private land issue in the United States again.As I mentioned earlier, there are not many civil disputes about forced occupation here, and this probably has something to do with the history of the United States.The idea that the United States was once a new continent, except for the very sparsely populated Indians (who also came to North America from Eurasia through the Bering Strait a long time ago) is of great significance.It is pointed out that the working class is the most advanced and revolutionary class, that is, immigrants from France, Spain, the United Kingdom, etc., once represented a European country to grab territory there.Not only did they continue to fight for territory, but there were also land disputes among civilians.You can see from a large number of American western movies that the United States has experienced a barbaric era in which "whoever draws the gun quickly is the best".It is precisely because there are many problems in this area that laws to solve these problems are quickly produced.Neighbors in the United States are generally friendly now, because if there is any doubt about the land, there is a surveying company in the locality. According to the real estate map that everyone has and has been filed with the government, the technicians of the surveying company will According to modern surveying technology, the boundaries are clearly marked, and there is nothing to dispute.In big cities with tight land, there are very strict laws and regulations on housing construction. After problems arise, "articles" can be found in court.These are all off topic.

But when the author of the American Bill of Rights wrote the Third and Fourth Amendments, it meant more than establishing private ownership of land and maintaining boundaries between civilians. You can clearly see that it is A limitation on government power.Its purpose is not to keep the neighbors out, but to keep the police out.You must have known the origin of the Third Amendment to the Constitution. It was an item that Americans would never forget to write when they suffered from the unreasonable occupation of private houses by the British army. Although this amendment has been in existence for two hundred years The number of times it has been used in court can be counted on the fingers.And the Fourth Amendment to the Constitution, just like the freedom of speech I mentioned earlier, its strict implementation is not a very simple matter.Therefore, I would like to introduce you to a well-known case about this bill below.

It happened in 1967, and as you know, it was a time when the civil rights movement in the United States was on the rise, and various trends of thought stirred up all the young people in the United States very excitedly.Coupled with the confusion brought about by the Vietnam War, the civil rights law that completely resolved racial segregation had just been passed, and the entire American society was filled with an atmosphere of turmoil. The widespread drug use among young people also began at this time. The protagonists of one side of the case are a couple, Margaret McSulley and Alan McSulley.They were all young people who were influenced by the times at that time, were interested in various trends of thought, had socialist leanings, and took the civil rights movement as their career.

Margaret is a southerner, born in Kentucky, and has always received traditional southern education, but she has some interest in politics.She married a soldier right out of college and had two sons.Later, she moved to the capital, Washington, D.C., with her husband's military deployment.When her husband decided to study medicine, she started looking for a job as a secretary in order to earn some money to pay for his tuition.But soon her marriage and work changed. She got divorced and tired of working as a secretary in Congress. Finally, she was introduced by her friend and met a Washington columnist named Dole Pearson.This person was one of the more prominent journalists in the United States at the time, and his articles never let go of the public and private shortcomings of government officials. Because he had a large readership, he became a figure that frightened some people, especially in Congress. Some members of Congress had a headache seeing him.But there was nothing to do with him. Margaret was 26 when she became one of four secretaries hired by Pearson in 1962.Just as her marriage ended, her social and political education began.Pierson was not only a scandal-buying person, he also actively initiated and participated in some movements, and Margaret was eventually introduced by him to some civil rights movements, which had destabilized the United States at the time.She was particularly interested in helping black students in a nonviolent affirmative action organization, and she felt empathy for them.Pierson also introduced her to Washington's upper echelons.She was constantly at social events around him, where she met quite a few members of Congress and even the vice president.She typed not only for Pearson's personal papers but also for his diary, and she quickly became the columnist's girlfriend, now nearly 70 years old.She was fascinated by his authority and proud of her role.Two years later, she followed Pierson to the 1964 Democratic Party Convention, met many blacks in the same "movement", and found that their own luxurious society had nothing to do with the blacks in the civil rights movement. For the first time, I started to take a hard look at myself and what I was doing in my life.Finally, she decided to leave and volunteered for Mississippi. In 1966, she returned to Washington, only this time she never went to Pearson, but found another job.It was there that she met Alan McSulley.He grew up in the Washington suburbs and was also married and divorced at a very young age.He has always been very interested in politics, and the two of them had a lot in common and soon fell in love. Afterwards, they felt that the plans they encountered in their work were all about arranging white people to help poor black people. In fact, it is completely possible to arrange some black people to help them, and at the same time, arrange white people to help some poor white people.So, they began to leave the upper city jobs and turn to the Abalaki Mountains.There, Alan found a position in the "Volunteer Organization", which specializes in training volunteer social workers to help the poor in mountainous areas.The organization was preparing to open a new office in Pike County, Kentucky, and sent him there. Pike County was the largest county in Kentucky, almost the same size as Rhode Island, but its population at that time was only 8,000.About half of the people live in its only small town, and the rest are scattered in the deep mountains and old forests of Abalaki.Many people should need help, because despite the mineral richness, in the late 1960s, one in four adults was uneducated, and half the households were classified as poor.But it's one thing for you to feel that they need outside help, and quite another for them to have that desire themselves.These families have lived here for almost two centuries. Few people travel far. They can almost always stay in their own closed society like this. They have deep doubts and fears about everything outside. When Alan and Margaret moved here on 1 April 67, they rented a house from a local named James Compton.They were soon married.Margaret found a job at the United Southern Educational Foundation, a civil rights organization founded in 1938, where she studied the impact of the local coal mining industry on mountain life.During this period, they went to the famous music city Nashville and some universities to participate in the civil rights movement meeting, where there were speeches by radical black leaders advocating "black power". After that, riots occurred in some universities.They have been interrupted for a long time for this.He returned and not only taught his students how to organize agricultural workers, but also spoke radically to them about radical political and social reform.I don't know if it was because he was too radical, or because he left the job for a long time. In less than a month, Alan was fired by the "volunteer organization". Next, Alan helped Margaret with her work.But there is always the question of whether poor people with little education are really interested in the "help" that the civil rights people think must be given to the local people?Today outside the United States, it seems that this is a country that has always been "ultra-modern", but it is not.As I said before, there is a big difference between the faces of the South and the North of the United States. Even today, you can find some very conservative small towns in the South, let alone thirty years ago.Those "trendy" and "vanguard" civil rights activists, their words and deeds are incompatible with the people they want to help. The former often only notice their good intentions of "helping others", but never think about it. The culture represented is so difficult to be accepted by the other party's culture, and even under certain circumstances, how much resentment and hatred it will cause the other party.For the latter, they are just guys who come to destroy the traditional morals, beliefs, and peaceful life here. Margaret almost felt desperate. She thought it was a battle against poverty, but she had just touched a little fur in this place, and she was already about to lose.She grew up in the south, so she knows better than Alan how far apart they are from the locals.She later said: "I knew those people didn't want us there, and didn't want to hear what we had to say. I even worried that even if Alan wasn't so radical, they would all want to kill us in the mountains." Locals responded to them Growing fearful of the possible disruption to their peaceful life there, they advised their landlord to evict them.The landlord then found an excuse and asked them to move.Before they moved out, they insisted that the landlord, Compton, come and see the house to make sure nothing had been damaged during their tenancy.It was this look that saw a big storm. The house has been almost emptied, and only some things related to their work remain, including many left-leaning and radical books, pamphlets, photos, film disks, a large number of letters, and so on.Compton, who lived in the mountains, had never seen these things and this kind of working atmosphere, and it can be said that he was taken aback.He called and told his friend, who was the "Local Security Police" chosen by the local people for the four-year term.He said on the phone that there is an old den of the Communist Party here, and you should really check it out. In early August, Compton's "cop" friends called him to a District Court meeting.The "vigilante" also called two district attorneys and an official from the FBI's local agency.This kind of meeting is usually to discuss and solve some daily problems in the local area.It was later chaired by one of the inspectors, Thomas Ratliffe.He offered to "take action" against the McSulleys at the meeting.He asked for help from local FBI officials, who knew there was no legal basis for such an action, but were turned down.So the prosecutor had to find out the laws of Kentucky himself and try to find legal basis.As a result, they found out that half a century ago, just after the First World War, the state passed a revised law, which included a "subversion crime", which could be punished with 21 years in prison and a fine of 10,000 US dollars.After this revised law was passed in the 1920s, no one ever thought of changing it.According to such a law passed in 1920, they issued a warrant for Alan's arrest and a search warrant for their home.The scope of the search read: "Subversive material, or printing presses, or other machinery for printing and disseminating subversive material." At the moment, the McSulleys had just moved, and the house was full of unopened boxes and boxes, books and papers, and their work-related correspondence.They also used to keep their correspondence and various written materials, which recorded their lives.On the evening of August 11, 1967, a group of "local security police" surrounded their home. When they came up from behind, Margaret saw them in the kitchen and thought they were looking for some fugitives. Didn't even realize it was coming after them until they burst through the door and a warrant was read to them.Prosecutors also arrived at the scene of the search.The prosecutor named Thomas Ratliffe had never met the McSulleys before, but what happened after that tied them together. years of litigation. After Alan was frisked, a dozen men searched the small room, took every book, dumped the contents of the drawers, even pulled the sheets off the mattress and dragged them down again. The mattress and eventually even the bed frame came apart.Margaret said later, I don't even know why they did it, but they left the bed frame so loose when they left.The McSulleys were trembling with surprise from the sudden incident. They thought that as long as they got through the night and got in touch with the outside world, everything would pass.But when a guy says to Alan, "I'd love to see you hanged," they're really scared that they're in great danger.Margaret immediately called the local lawyer.At this time, the police found some materials about Margaret and issued an arrest warrant for her.At this time, the nature of the search also changed.At the beginning, they also sorted out the books, and put two piles of things that they thought were problematic and those that were not.But at this time, Ratliff didn't even look at it, but just pointed at various things for the police to take away.As a result, two small piles of things are combined into one big pile.It includes their phone bills, utility bills, tax bills, voided checks, letters, diaries, notes, marriage certificates, and even old college exam papers.They also added their entire collection of 564 books, including books by Mao Zedong, Che Guevara, Marx, and Lenin, as well as novels, poems, and "cat training skills", and even the phone book of Washington DC.A gang of cops ended up borrowing a car from a neighbor and loaded it with the McSulleys' belongings. They spent the night in a cell.Alan's bail is required to be $5,000 and Margaret's bail is $2,000.They immediately contacted their friends for bail.At the same time, two lawyers in New York, William Kenstler and Morton Starway, also put them on their rescue list. They have just established a constitutional rights center to deal with such cases legally. Help is offered for a small fee, or even for free.The first thing these two lawyers sought was for the higher court to declare this Kentucky law unconstitutional, because in the United States, the Constitution is the highest law, and many laws below must not be unconstitutional, otherwise they will be declared invalid. When the McSulleys got the news, they no longer worried about the danger to their lives, but began to worry about dragging their friends into similar troubles, because all their written records had been taken away, some of which were They have participated in various radical activities and organizations over the years, and there are even many things that they have not opened for many years.Margaret was obviously more disturbed. Her diary and letters, including her love letters, were taken away, which contained records of her previous personal affairs with several men. Of course, the love letters also contained the letter of the columnist Pearson.As an American who is accustomed to being respected for personal privacy, it is impossible to imagine that such things will be confiscated.But they happened to meet such a group of "local policemen", and they couldn't explain why for a while.Afterwards in court, when the judge asked the "local security police" who participated in the raid about the Fourth Amendment to the Constitution and the legal knowledge about the "hunt and arrest", they didn't even know anything about it.They were only elected by the local residents to take care of the general security disputes in this quiet and small place.This time they simply wanted to give some trouble to the foreigners they hated, but they never dreamed about it, so they "broke into" a "major national case".In fact, they lived with that "subversive law" half a century or more ago. They spent only a week in jail before they received bail money raised by their friends and they were released on bail.A month later, a court in Park County opened to charge them with "subversion" under Kentucky state law.But just three days after the indictment, the Eastern Division of the U.S. District Court declared: "It is difficult to imagine that a competent attorney would find this state law to be constitutional." The district court wrote: "(The law) Violates the First Amendment...because it improperly prohibits free speech, press and assembly, it fails to distinguish between advocating ideas and advocating actions...it imposes prison on those who promote non-mainstream political beliefs Head." At the same time, the district court ordered that the state law in Kentucky permanently prohibit the prosecution of the McSulleys or anyone else for subversion. By this time they felt that the damage done to them by the self-righteousness and misconduct of some narrow-minded country policemen could be done for good.Next, according to the usual logic of Americans, it is their turn to consider how to sue those local officials and police.Because in the United States, there is no such thing as forgetting.However, the district court could not close the case immediately because of the possibility of Kentucky appealing the legality of the subversion crime.Since the case is not closed, those confiscated items used as evidence by the plaintiff cannot be returned immediately.The court ordered Ratliffe to "securely hold" all materials "until the conclusion of an appeal or other legal process."The McSulleys just found the situation they were facing a bit strange. They were free, but the stolen property was still locked in other people's hands.They hadn't thought at all that it was just such a "suspension of return" caused by legal procedures that the threat of further serious violations of their personal rights and personal privacy was yet to come, and worse things had not yet begun.What's going on here? No one expected that there would be such a coincidence in the world.On the same day that their homes were ransacked, the U.S. Senate passed a 150 resolution.This resolution stemmed from the upheavals of the sixties that I mentioned earlier.The following figures are enough to show that this kind of turmoil is indeed quite serious: From 1965 to mid-1968, there were about 166 major urban riots, resulting in nearly 200 deaths, nearly 8,000 injuries, and property damage of more than 150 million .Under such circumstances, Resolution 150 authorizes the Senate to establish a "Government Operations Committee" to investigate the riots, so as to help maintain order and stability in the United States from the perspective of future legislation.The head of this committee is a senator named McClellan.He has been a senator since 1934 and has a high position.Therefore, he has also been the target of the aforementioned writer Pearson, Margaret's former lover, in his column writing.So, as soon as the news about the McSulleys spread to Washington's old circle, a public revenge scene took the opportunity to start. First, an investigator named John Brick was sent to Pike County, and had a conversation with Inspector Ratliffe, who was designated by the court to "safely keep" the materials. reported his findings.He returned four days later and took copies of all these documents, including love letters between the columnist Pearson and Margaret.Senator McClellan reviewed all these letters.Then, Investigator Brick was ordered to come to the home of the McSulley couple, saying that they were involved in the riots related to the Nashville meeting investigated by the committee, and gave each of them a subpoena for questioning in Congress. The McSulleys thought at first that the Senate Operations Committee was interested not in themselves but in documents from the meeting they attended.It never occurred to them that, not to mention their meeting papers, even all their most intimate personal records had already been taken away by the Senate.Because they were kept in the dark, they are still doing everything they can to keep their material from Washington.To this end, their lawyers filed an application in the district court on their behalf, requesting that any of their documents not be handed over to Washington, but returned directly to them.The court agreed to hold a hearing on the matter before making a decision. Given that the "subversion crime" they were prosecuted for has been declared unconstitutional by the court, the materials related to the case should be returned to them, and the "suspended return" is only a matter of time caused by legal procedures.Therefore, the McSulleys have full confidence in being able to withstand the Senate this time.However, at this time, the New York Times reported the fact that their materials had been taken away under the headline "Senate Gets Radicals' Documents".Even so, they thought the newspaper had made a mistake.However, my heart is no longer so at ease.Therefore, before the district court hearing, when Alan confirmed the "statement of facts" written by the other party's lawyer according to the court's request, he paid special attention to the fact that it did not mention whether Washington had obtained the materials.So, he and the lawyer went back to each other and asked them to answer this question.The answer was, yes, they have already got some of the documents.The McSulleys almost passed out.On the one hand, their files contained the address lists of the militant organizations they had built over the years, and on the other hand, Margaret simply could not accept the fact that her personal life was once again exposed to others.In the American concept, this is indeed an unimaginable violation of an individual. After a hearing, the district court denied their request to return the documents and ordered them to comply with a subpoena issued by a Senate investigative committee.A month later, the case was appealed to the U.S. Court of Appeals.The appeals court determined that since the original district court order for the documents to be "safely held" because of the possibility of Kentucky appealing the legality of the "subversion crime" did not close the case, the time limit for appeals had now expired and the case should have been closed and send the file back.However, for the subpoena they received, it was an investigation into another case, and the appeals court held that the Senate Operations Committee had the right to enforce it. So, more than a year after their property was seized, the McSulleys retrieved their belongings from two cells.Of course, the court ordered the return of copies of documents taken by Investigator Brick in Washington.When he returned it, he asked Alan to read and check all the documents according to the list to ensure that there were no mistakes.Among these files was the diary that Margaret had been worried about.It was also the first time for Alan to see these things of his wife, which contained details of her relationship with the columnist Pearson, as well as a large number of love letters, and even among these letters, he found a love letter written by one of his friends, which is It happened long before Alain and Margaret met, and she certainly didn't want him to know.On the one hand, Alan was shocked and dizzy while reading, and on the other hand, he was very angry when he found out that the Senate took away such "documents" under the pretext of investigating the riot.He asked investigator Brick, is this what you took to Washington?Brick didn't answer.When Brick handed him all the documents, there was a meaningful smile on his face, and Alan really wanted to punch him.He couldn't imagine how the old man in the senate could pass on a woman's private letter.For Americans, this is as unforgivable as gang rape. Back home, they separated their files and finally decided to burn them all.It is impossible for their lives to be the same as before, and the blow they received mentally made it difficult for them to recover throughout their lives.But in the United States, it is absolutely impossible for this kind of thing to end like this.The McSulleys felt that Kentucky magistrates and the Senate Operations Committee had handled their private papers in an unreasonable manner.They fell prey to a personal feud between Senator McClellan and columnist Pierson.They knew that Pierson had often attacked Senator McClellan in his columns, and they also knew that Senator McClellan, among their hundreds of files, had turned to Pierson's love letters.Their lawyers firmly believe that the Senate's approach violated their constitutional rights.As a result, they decided to file a civil lawsuit in court, demanding compensation for their mental injuries from members of the Senate Operations Committee.At the same time, they announced to the committee that they would resist the Senate subpoena.As a result, the Senate went to court, and they were sentenced to one year and three months in prison for contempt of Congress. Again, they're coming to the Court of Appeals, claiming they're in contempt of Congress because their subpoenas were based on an unlawful search.According to the Fourth Amendment to the Constitution, the Supreme Court has long had the "doctrine of exclusion", which holds that any evidence of illegal search cannot be used in the trial process, and any conviction on this basis must be reversed. When I first saw the 4th Amendment, I honestly couldn't see the big point.Because I thought, isn’t it just that a search and arrest warrant is required for a search and arrest?If the federal government or some local government really wants to find someone to blame, is it afraid that they won't be able to issue a warrant?Wasn't the hunt for the McSulleys "everything"?This is also what I said before, the strict implementation of the Fourth Amendment to the Constitution is not a simple matter.也正因为如此，美国法院在处理这一类案件的时候，是相当仔细的。否则的话，这一条很容易成为虚设条文。 在历史上，这种情况真是太普遍了。英国就曾经给它的警察们广发“通用搜捕状”，使得女皇的部下们可以随时随地冲进任何人的私人领地搜寻“走私货”。这种臭名昭著的滥用搜捕状，在英国引起过公众的极大谴责。因此，到了18世纪中叶，英国的这种“通用搜捕状”有了很大的限制，只有在一个领域里还用，就是对所谓的“颠覆罪”。 在北美大陆还是英国统治的时候，抗税的风潮一起，这种“通用搜捕状”立即就在北美大陆复活了。英国国会授权这种“搜捕状”可以令警察，治安人员等，在北美洲他们所统治的地区，对所有的“房子，仓库，商店，地窖，船只，包裹，箱子，盒子，桶，任何行李，进行打开搜查”，以寻找没有按贸易法交税的货物。 因此，在1761年，还远在美国独立之前，波士顿的商会就向法院投诉，并且提出，一张搜捕状应该只有在发给特定警官，规定搜查特定房子的特定东西时，才是有效的。如果象“通用搜捕状”这样，把任意搜捕的权力交给任何政府人员，等于是每一个人的自由权利都捏在任意一个小警察的手里，而这种包括隐私权在内的权利，是应该留给老百姓的。他们的代表有一段著名的话，“一个人的房子就象是他的城堡，当他安安静静地待在里头的时候，他就应该安全得象一个城堡里的王子。如果通用搜捕状应该算合法的话，这种个人的特权就被彻底毁灭了。” 美国成立之前，波士顿法庭上商人代表的长达5个小时谴责“通用搜捕状”的发言，不仅成为此后的美国宪法第四修正案的基础，也成为15年后美国独立的先声。这也是美国人对于搜捕状特别敏感，对于个人隐私，私人财产特别珍重的历史原因。 执行宪法第四修正案时，美国法院认为，最起码要确定：搜查特定的“地点，对象，物品”，是否有“合理的理由”。而且，作出决定的人必须是“处于中间地位的，独立的行政官”，而不能是与该案有牵扯的警官。 所以，美国上诉法院对麦克苏利夫妇这个案子中看上去“合法”的搜捕状，仔细进行了分析。搜捕状的发出是基于房东的儿子小康普顿的誓言，他发誓说，他父亲“在上述地点肯定看到了确定的颠覆材料”。上诉法院首先否定了这份宣誓作为搜捕状基础的合理性，原因是看不出宣誓人和这个调查有什么关系，他的誓言内容并不是他的亲眼所见，而是“道听途说”，更何况，“誓言”里只提到“颠覆材料”，没有什么具体内容。就算肯塔基州的那条“颠覆法”在当时是有效的，“誓言”里也看不出有任何具体材料是违反了这条法律的。接下来，上诉法庭指出，搜捕状指示警察搜查“颠覆材料，或印刷机，或其它印刷和传布颠覆材料的机器”，却没有对所搜的材料作精确描述，如果所谓的“颠覆材料”是一篇文章，至少要有明确的名称，内容。没有对搜查对象作精确描述，这也是违反宪法第四修正案的。在法庭做证时，当初参与搜查的警察对有关宪法权利的了解，几乎是一无所知，但是他们已经是一个执法人员了。所以，两个世纪以前波士顿商人代表的警告，读上去并不过时。 美国上诉法院认为，麦克苏利夫妇的家遭到搜查一案，是非常典型的违反宪法第四修正案的违法搜查案例。所以，参院所开出的传票是建立在违法搜查的基础上，传票因此无效。麦克苏利夫妇由于拒绝服从参院传票而被判的藐视国会罪，也因此而被推翻。 在美国，所有的人都知道，这样一个案子以胜诉终结，就是意味着另一个案子的马上开始。所不同的是，在下面一个案子里，前面的被告将要以原告的身份出现，而前一个案子里的全部原告，一个都跑不掉，通通都会成为被告。这个在美国众所周知的“规律”，非常有效地防止了美国政府公职人员对平民的迫害，因为他们必须有所顾忌，一不当心的话，弄不好就是“搬起石头砸自己的脚”。所以这类案子一般是不大会这样发生的。我下面会进一步向你解释，为什么这个案子会这样发生，因为这里恰恰有一种双重巧合。 所以接下来，就是理所当然的，麦克苏利夫妇对他们所受到的伤害要求赔偿的民事诉讼。参议院立即要求撤销这个诉讼，因为在美国宪法中规定国会议员有一定的豁免权，尤其是他们在国会中的行动。比如，两院议员在议院内所发表的演说及辩论，在其它场合不受质询。这是为了保护立法机构的独立和完整，也是为了使立法机构的成员不因为他们的立法行为而受到官司的干扰。 整个华盛顿地区的美国上诉法庭的十名法官，一起听了参院对于他们的豁免权的争辩。一致同意，如果那些文件没有被扩散到国会之外，参议员可以受豁免权的保护。同时，法官也一致同意，不管这些文件是怎么成为参议员和他们的职员的“占有物”，只要这是他们立法工作的一部分，他们在国会怎么对待这些文件，都还是受豁免权的保护。所以，牵涉到的几个调查委员会成员和议员，他们调看到达国会以后的文件等行为，都完全在宪法对国会议员的豁免权的保护之下。 但是，第四修正案还是抓住了调查员布立克检查和获取这些文件的行为。这些行为发生在调查现场，而不是国会之内，并没有绝对的豁免权。问题是，他的这些行为算不算在第四修正案所涉及的“搜查和没收”的范围内。对于这一点，法官的表决以5比5打了个平局。在联邦法院发生这种情况，就被认为是确定低一级法院的意见。在这个案子里，低一级法院竭力强调布立克的行为完全就是一种“搜查和没收”，至少不能撤销起诉。 至于作为地方检查官的雷特力夫，他自知得不到只有国会议员才能享受的豁免权。他只有一个机会，就是，对于地方官员，他的行为如果是有明确的法令和宪法权利可依，那么也可以免予追究。但是，在这个案子中，法庭认为，检查官雷特力夫应该知道搜捕状依据不足，同时，他也应该知道，法庭命令他“安全保存”文件，他就不应该再把文件交给参院。这样，检查官雷特力夫也必须受到起诉。 所以，你可以看到，这就是麦克苏利夫妇很不幸遇到的双重巧合。一方面，是一个闷在封闭山区，十分狭窄无知的小小地方检查官。另一方面，是自持拥有国会议员豁免权的参议员。实际上还有一点不可忽略的背景因素，就是美国当时的国内骚乱。这种动荡的情况使得美国上下很多人在认识上都产生混乱，不知道应该如何寻找和确定这些骚乱的后果承担者，也不知应该如何看待民权运动中的激进分子，不知是否可以把他们看做一种潜在的“危险”，甚至“反美国的危险罪行”的调查对象。没有这种背景，这个案件也是很难发生的。在这个案子中，检查官雷特力夫是根本上的认知混乱，而参议员麦克莱伦，应该说是有意识地在利用这种背景和手中的职权泄私愤。 但是，我还必须提到的是，尽管如此，参议员麦克莱伦还是不敢肆意妄为。可以看得出，他走出一步的时候，还是必须三思而行。他拿到这些文件之后，曾经下令，把这些文件都锁在调查员布立克的私人档案柜里。那些玛格丽特和专栏作家皮尔森的情书他拿去看了，但是，他又把这些信密封在一个信封里，除了规定的少数几个人，其余人都不得打开。尽管是在动荡的年代，美国毕竟还是宪法精神根深蒂固的法制国家，，麦克苏利夫妇担心的很多事情都没有发生，没有一个激进组织和个人由于他们的文件而遇到迫害或麻烦，就连专栏作家皮尔森，也没有受到任何影响。 至于参议员麦克莱伦，他只能三思而行，因为他是心虚的，他知道这不是一个光明正大的调查行为，他的行为是经不起推敲的。他知道，他可以因为豁免权逃脱法律的惩罚，但是，只要这件事情闹大，他躲不过专对议员设置的“道德委员会”的追查。而且，在美国，越是象他这样的“公众人物”，越是没有什么可以隐藏的角落，只要一公开，这种侵犯公民隐私的事情在美国绝对会引起公众的愤怒，这样，他在选民们心中的“形象”就完了，换句话说，他的政治前程也就完了。所以，在拿到这些文件之前，他也许抵挡不住自己心里想去做这样一件事情的诱惑，但是，当他拿到手之后，他不可能不清醒过来，发现自己是捧着一个“烫手的烤白薯”。 麦克苏利夫妇一直坚信，这个参议员就是想借此对专栏作家皮尔森进行报复。但是他们的律师却一直认为，参议员麦克莱伦只是无法抑制自己对于一个“宿敌”的阴暗面的好奇心。正因为皮尔森在他的专栏里，从不放过包括麦克莱伦在内的议员们的私人弱点，所以，他就是忍不住要拿来看看，然后骂一句，你自己算什么东西。我如果假设麦克苏利夫妇的观点是正确的，假设参议员麦克莱伦确实是存心报复，那么，你也可以看到，在美国的制度下，他“三思”以后的结果，只能是放弃这个“报复计划”，因为他本人也在各种制约和监督之下。如果说，我们假设律师的估计是对的，那么，你也看到了，即使只是“好奇心”，只要它超越了法律所允许的范围，侵犯了另一个公民的宪法权利，就很难做到不受追究。 因此，即使在已经发生的这个案子中，我们仍然可以看到，美国制度的设计还是在那里悄悄地起作用。那就是，美国政府公职人员的个人素质或品质是可能出现问题的，这类问题所造成的偏差，使得平民受到侵犯，这在美国也是完全有可能发生的。但是，这种偏差是被约在一定的范围内的，不可能泛滥成为一场大的灾难，不可能因此就株连一大片，揪出许多“阴谋小集团”的。也就是说，在整个宪法和制度之下，美国民众的基本权利和自由还是受到保障的。同时，已经发生的问题，也由于这个制度的运作而能够得到纠正，老百姓最终还是不怕找不到讲理的地方。 经历了所有这些漫漫长途，此案民事诉讼的开庭是在1982年，已经是事件发生的15年之后了。阿兰和玛格丽特已经离婚，现在只是因为这个案子，他们重新坐在一起，他们的律师还是15年前的摩顿.斯达威。专栏作家皮尔森已经在几年前去世，参议员麦克莱伦，调查员布利克等都已经去世，因此由司法部代表这些参院的被告，检查官雷特力夫是整个法庭里唯一活着的被告。在作证时，他除了为自己辩护之外，依然滔滔不绝地谈到他对于麦克苏利夫妇的反感，尤其是对玛格丽特的厌恶，甚至当庭大谈她的日记中的隐私细节，希望陪审团能够理解，他的做法也不是“无缘无故”的。他似乎还是不能明白：作为一个个人，你有权厌恶另一个人的生活方式，但是作为一个执法人员，这不能成为你利用手中的职权侵犯他人宪法权利的理由。 陪审团宣布认定被告的罪名成立，并且定出对麦克苏利夫妇精神伤害的赔偿，雷特力夫，160万美元；参议员麦克莱伦，20万美元；布立克，10万5千美元；另一名参院调查委员会的被告爱德勒曼，8万4千美元。 对于这个判决，司法部立即代表参院的被告，向上诉法院提出上诉，理由还是国会议员的豁免权。上诉法庭最终同意了这几名参院被告的豁免，但是，认定调查员布立克的行为，例如以不适当的态度归还玛格丽特的日记私信等等，仍然是符合定罪条件的。所以，调查员布立克的赔款不能被豁免。至于检查官雷特力夫，最后和麦克苏利达成了庭外和解，他们没有公开这一“私了”的赔偿数字，但是，根据麦克苏利的律师所说，他们所得到的赔偿，"已经足以改变他们的生活了”。 有关美国宪法第四修正案的讨论，200多年来一直没有中断。根据发生的不同案例的不同情况，讨论也步步深入。总的趋势是对美国警察的限制越来越严格。除了紧急追捕之中，限制严格的“搜捕状”是绝对的必要条件。搜查是否有“合理的理由”，也会受到严格的检验。最近，美国最高法院又作出一项裁决，裁定警察在持有搜捕状进入民宅执行任务前，通常必须先敲门及表明身份，并且认定司法官员是否表明身份，属于搜索作业合理性的一部分。只有在可能发生暴力冲突，罪证可能被毁灭的情况下，警察才可能对不表明身份的搜查为自己作辩称，但是这种辩称是否成立，还是要由法庭作出判断。 与此有关的问题在美国是很难含含糊糊过去的，老百姓也非常敏感，政府部门更是唯恐捅出什么乱子来不好交代。最近，又有一个轰动全国的案子，搞得联邦调查局非常头痛。在美国的爱荷达州，有一个叫郎迪.威夫的白人分离主义者，他住在一个十分偏僻冷落的地方，不仅观点十分激进，还作过违法的枪枝交易，比如私卖截短了枪管以后的长枪，结果成为联邦调查局关注的对象。在得到证据之后，先是法庭开了传票，要他去法庭为他非法出售枪枝的行为作答辩。他拒之不理。1992年8月联邦调查局的警官带了写着他名字的搜捕状准备去逮捕他，结果他又拒捕，不准他们进入。 后来，不仅发生长时间的对峙，还发生了枪战。最后造成一名联邦探员和威夫的妻子及14岁的儿子在混战中死亡。为此在全美国引起很大轰动。事情一发生，联邦调查局就知道这下完了，没办法向美国的民众交代了。因为，不论他们怎么解释，都无法证明他们拿了一张对威夫的搜捕证，却打死了他的妻子和未成年的儿子是一件无法避免的事情。尽管威夫确实开枪拒捕，尽管还打死了一名联邦探员，甚至还有说他儿子也参与抵抗，或者还有说可能死者是在混乱中被威夫自己的子弹误杀的。但是，这场发生在一个美国公民私人住宅之中的悲剧，在美国人的概念里，联邦调查局无论如何也推卸不了责任的。 保守派“谈论节目”名嘴，戈登.利迪愤怒得几乎隔三差五就要提到这件事，把联邦调查局的人称作是拿了杀人许可证跑到平民家里行凶的恶棍。甚至告诫听众，如果有联邦调查局的人到你的家里来，一定要对着他们的头部和胯下开枪，因为这两个地方防弹背心掩盖不住。尽管这些言论听来过激，但是，至少反映了相当数量美国民众对联邦调查局的愤懑情绪。我问过我的有着自由派社会主义倾向的朋友杉尼加，他说联邦调查局的做法“非常非常坏”！ 调查进行了三年，包括举行国会听证。这些听证都是公开的，给联邦调查局带来极大的压力，导致5名联邦调查局的官员，其中包括一名联邦调查局的副局长，遭到停职。主要追究的就是政府方面的责任。至今细节还未调查清楚，但是，政府已经付给威夫的一家310万美元的赔款。 从这里你也可以看到，美国政府对于处理一个个人的时候，它必须非常非常小心，这是因为，第一，政府无法隐瞒任何事情。第二，出了差错之后，哪怕十年二十年，总有一定的民权机构，会在人力物力各方面，支持一个哪怕是身无分文的普通公民和政府打官司，不获胜诉绝不会罢休。整个社会也会对此产生极大的关注和压力。因此，公民权利的保障，不是仅仅依靠权利法案的条文，它还必须依靠健全独立的司法制度，健康的社会机制，良好觉悟的社会和民众团体。而且，这个社会必须普遍有起码的正义感和公民良知。 我来了以后，觉得很吃惊的一点，就是这里在发生一个民权案例的时候，各种民权机构以及许多平民，他们都会抛开对当事人个人的好恶，抛开对他的信念，言论，行为的好恶，去支持这个当事人保护自己的宪法权利。这个时候，他们看上去象是在共同守护一个提坝，似乎一旦决堤就会一毁俱毁。 随着历史的发展，第四修正案的内涵也在扩大。这一法案的核心，在于强调禁止“不合理的搜捕”。对于“搜捕”二字的理解，随着不同时代，就产生不同的问题。比如说，对一个人搜身算“搜查”，那么，在你的身上取血样，尿样，算不算“搜查”，在你的电话上窃听，算不算侵犯了你的宪法第四修正案所保障的权利？早在1928年，美国最高法院就以下面这段话回答了这样的问题。 “宪法的制定者认为，一个安全的环境有利于寻求幸福的生活。他们认识到一个人的精神，感觉和智慧的意义。他们知道，人类生活的痛苦，欢乐和满足只有一部分是来自于物质。因此他们所寻求的是保护美国人的信念，思想，感情和感觉。作为对政府的限制，他们授予一些权利和这些权利的大多数内涵一个独立的地位，正是这些权利对于一个公民是最有价值的。为了保护这些权利，政府对于个人隐私的任何一个不公正指令，不管采用的是什么方法，都必须被认定是对宪法第四修正案的违背。” 半个世纪以后，美国最高法院更严格定义，只要是政府人员对一个个人“隐私的合理期望”进行干扰，都必须受到宪法第四修正案的限制。对于“不合理搜捕”限制的范围因此被大大扩展了，所有的个人隐私都被遮盖到了“第四修正案”"的保护伞下。 这封信够长的了，下次再写吧。 wish it is good! Linda