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they also knew that Parliament could easily sweep common-

law principles aside--especially in the case of searches

and seizures.  The lesson the Founders took to heart was

that the British Constitution was "only and whatever

Parliament said it was."22

Thus, the Framers of the American Constitution were

determined to devise a better way to secure their hard-won

liberties.  Under the American Constitution, the powers of

the government would be reduced to writing; they would be

enumerated and divided among three separate branches, and

the powers of the legislative body would be limited.  As

Chief Justice John Marshall noted in Marbury v. Madison

(1803), "[T]he powers of the legislature are defined and

limited; and that those limits may not be mistaken or for-

gotten, the constitution is written."23

It is against that background that one must read and

interpret the words of the Fourth Amendment.  The purpose

of the Fourth Amendment was to elevate the common-law

principles of search and seizure so that they would be

beyond the reach of the legislature.  The amendment essen-

tially constitutionalized four precepts of the English com-

mon law: (1) the judicial nature of the "warrant-issuing"

process, (2) the "probable cause" requirement, (3) the

"oath or affirmation" requirement, and (4) the "particular-

ity" requirement.  Much has been written about the last

three precepts, but little attention has been paid to the

first.  Yet it is the warrant-issuing process that holds

the key to the controversy over whether the exclusionary

rule can be constitutionally justified.

Under the common law, warrants would issue only "upon

probable cause," and the determination of whether probable

cause had been established was thought to be judicial in

nature.  Sir Matthew Hale, for example, said that the jus-

tice of the peace was to judge the reasonableness of

suspicions or allegations.  If the justice of the peace

found the causes of the suspicions to be reasonable, the

suspicions would then be his as well as the accuser's, and

a warrant would accordingly be issued.  Whether the war-

rant was or was not issued, the reasonableness of the

accuser's suspicions would have been, in Hale's words,

"adjudged."24  Similarly, Lord Mansfield wrote in 1765 that

"under the principles of the common law. . . . It is not

fit, that the receiving or judging of the information

should be left to the discretion of the officer.  The mag-

istrate ought to judge; and should give certain directions

to the officer."25  Again, Blackstone wrote that it was the

duty of the justice of the peace to "judge" the "ground of

suspicion" before issuing a warrant.26  Thus, the funda-