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Tuesday, November 8, 2005

The Evolution of Home as Castle

The common-law cliche that a man's home is his castle has become a dominant part of the rhetoric of American property law.  In its most common incarnation, the castle doctrine is used to convey the image of the home as a sanctuary from government interference.  Interestingly enough, though, the castle doctrine had a radically different meaning when it was first introduced.  I discuss this evolution and its legal significance at greater length in my article Home as a Legal Concept, but this post gives a summary of the high points.

The castle doctrine dates back to at least 1505, when it originated in cases involving the right to defend the home against invasion by other private individuals.  In Seymayne's Case, decided in 1604, the court held that:

[T]he house of every one is to him as his castle and fortress, as well as for his defence against injury and violence, as for his repose; and although the life of a man is a thing precious and favored in law; . . . if thieves come to a man's house to rob him, or murder, and the owner or his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing.

The court immediately went on to state, however, that "[i]n all cases where the King is party, the sheriff (if the doors be not open) may break the house, either to arrest or do other execution of the King's process."

Gradually, however, the castle doctrine started to be used as a rhetorical tool by those resisting government invasions of the home.  Perhaps the most influential example of this usage was James Otis's argument in the 1761 Writs of Assistance Case, where he argued that the writ at issue was "against the fundamental Principles of Law" because "[a] Man, who is quiet, is as secure in his House, as a Prince in his Castle, not with standing all his Debts, and civil Process of any kind."  As Leonard Levy noted, "Any fastidious legal historian must acknowledge that Otis's argument compounded mistakes and misinterpretations. . . . That Otis distorted history is pedantic; he was making history."

Two years after Otis argued in the Writs of Assistance Case, William Pitt made a powerful statement of the castle doctrine in a speech to Parliament:

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

This type of rhetorical use of the castle doctrine caused the doctrine to change meaning.  As William Cuddihy put it, "A man's house is his castle (except against the government)" yielded to "A man's house is his castle (especially against the government."  In its new form, the castle doctrine featured prominently in Revolutionary-War-era complaints about abuses of government power, and was an important intellectual foundation of the Fourth Amendment.

Ben Barros

http://lawprofessors.typepad.com/property/2005/11/the_evolution_o.html

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