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ILSON163 (James DeWitt Andrews ed., Chicago, Callaghan & Co. 1896) (authored circa 1790) (“The principal species of evidence, which comes before juries, is the testimony of witnesses.”). 88. Consider the example of Reed v. Legg, 2 Del. (2 Harr.) 173, 173-74 (Del. 1837), where the facts indicate that allegedly stolen goods recovered during a search were immediately returned to their alleged rightful owner. 89. Sources of law known to the Framers themselves consisted primarily of treatises by English jurists such as Hale and Blackstone. In colonial America “the reporting of any decision was unusual,” and “this state of affairs lasted well into the early national period.” Langbein, supra note 81, at 572-73 (citation omitted). 90. Pitler, supra note 27, at 466. 91. Amar I, supra note 5, at 786.
ROOTS.FINAL1 1/13/20108:36AM 2009/10] FOURTH AMENDMENT EXCLUSIONARY RULE17for physical evidence.92And even where early search warrants sought physical property, they almost always involved searches for stolen property—again, not to be used for “evidence” so much as to be returned to its rightful owner.93Moreover, the decision whether to exclude the ill-gotten gains of searches or seizures—both today and in the past—rarely occurs “in a criminal trial” but generally occurs in pretrial proceedings. As shown below, major statementssupporting the concept of Fourth Amendment exclusion and suggesting that such a remedy must naturally develop within the then-gestational law of evidence aboundin writings and decisions of the Founding era, as well as in the antebellum and Reconstruction eras. Such statements can chiefly be categorized as accompaniments to a trio of jurisprudential doctrines that have long been lost to history (or consolidated into the modern exclusionary rule): (1) pretrial habeas corpus discharge as a search and seizure remedy, which has now been abolished, (2) the “mere evidence rule,” which forbade searches for property owned by another person unless it was stolen or contraband (and has likewise been abolished) and (3) numerous evidentiary privileges that disqualified large amounts of early trial evidence, privileges which—in some applications—operated as exclusionary rules (and which have since been abolished or severely limited).94Consider the 1787 Connecticut Superior Court decision in Frisbie v. Butler. Frisbiewas published in the first volumeof the first case reporterever printed in America.95It involved a search warrant issued upon the complaint of a private person (Butler) who lost “about twenty pounds of good pork” under suspicious circumstances.96Butler suspected Benjamin Frisbie of nearby Harwinton, but the search warrant was written out in very general terms.97It commanded another private person, John Birge, to accompany Butler and “search all suspected places and persons that the complainant thinks proper” until the pork was found and a suspect was made to “appear before some proper authority.”98They arrested Frisbie “[b]y 92. SeeDavies, supra note 15, at 627.