Chancellor Walker further pointed out that the Constitution of 1776 had contained this provision:
“And ... the inestimable right of trial by jury shall remain confirmed as part of the law of this colony, without repeal, forever.”
But though the Van Ness Act was declared unconstitutional the work of suppression went on. The Hobert Act took its place. The Association Against the Prohibition Amendment (New Jersey branch) protested to Governor Edwards when the Bill was passed. They pointed out that Chancellor Walker, in his opinion in the Court of Errors and Appeals, on page 18 of the decision dated February 2, 1922, had said:
“New Jersey need not have passed any enforcement act and could have left the field wholly to Federal endeavor under the Volstead Act.”
They likewise pointed out that there were no advantages whatsoever to the State of New Jersey proceeding from such an act; but the disadvantages were numerous and severe. It put upon the State courts all the work, and upon the citizens of the State all the expense of enforcing the national law. They also showed how tyrannical the Act was in certain sections. Section 16 reads as follows:
“Any officer engaged in the enforcement of this act who shall search any private dwelling, as herein defined, which is occupied as such dwelling, without a warrant directing such search, or who, while so engaged, shall, without a search warrant, maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be punished for a first offense by a fine of not more than one thousand dollars, and for a subsequent offense by a fine of not more than one thousand dollars, or by imprisonment for not more than one year or by both such fine and imprisonment.”
It was shown that this section had been taken, word for word, from the Amendment, forced upon the United States Senate by the House in the Willis-Campbell Bill and passed by the Senate on November 18, 1921. The Stanley Amendment originally offered in the Senate for the purpose of serving as an enforcement act to the Fourth and Fifth Amendments to the Constitution was passed unanimously by the Senate after a thorough investigation and after having been accepted by Senator Sterling who had charge of the Bill. The House refused to accept the Amendment and put into the Bill the following section:
“That any officer, agent, or employee of the United States engaged in the enforcement of this act, of the national prohibition act, or any other law of the United States, who shall search any private dwelling as defined in the national prohibition act and occupied as such dwelling, without a warrant directing such a search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property shall be guilty of a misdemeanor,” etc., etc.
Senator Ashurst, of Arizona, a dry Senator, and one who said he had never cast a wet vote in his life, refused to sign the conference report on the ground that the language of this section did not protect the people in their rights. He was joined by other dry Senators for the same reason. Senator Reed, of Missouri, than whom there is no greater Constitutional lawyer in the United States, in calling attention to the words, “shall without a search warrant maliciously and without reasonable cause,” had this to say:
“What is the plain inference to be drawn from that language? First, you must have a warrant to search the house. Second, if while you are searching the house you proceed without a warrant to search the other building or property you are not guilty of offense unless two things concur: First, you must have been without any reasonable cause to search the other buildings or property, and, second, you must have acted maliciously. Notice the language. It is worth your while. You are legislating for 110,000,000 people and you are putting this authority into the hands of irresponsible men, proceeding without bond, armed with big guns, and sent out among the people.”