(dissenting):
I dissent.
With the disposition of this appeal, our resolution of search and seizure questions makes a radical departure from the central feature of the Fourth Amendment and, by approving delegation of magisterial powers to pass upon the existence of probable cause, renders its shield almost nugatory. I am unable to agree that creation of judicial authority is in anywise a procedural matter, or that the authority of a military commander to judge whether a search of one’s personal effects should be made is dependent upon the provisions of the Manual for Courts-Martial, United States, 1951, or Uniform Code of Military Justice, Article 36, 10 USC § 836. To the contrary, it exists independently of such authorities as a substantive attribute of command, which, because of its nature, must be personally exercised.
Hence, Major Keller could not, as the designee of the Commander, Shu Linkou Air Station, judicially pass on the issue of probable cause and, of necessity, the search which he purported to authorize was without foundation in law. Finding such to be the case, I need not express my views on the sufficiency of the evidence presented to him, and limit them to an exposition of the error into which I am constrained to believe my brothers fall regarding delegation of authority.
I
The Judicial Nature of Determining Existence of Probable Cause
The problem of illegal search and seizure was by no means an abstract matter to our Founding Fathers. They were Englishmen to the core. As sons of Albion, they knew only too well the saci'ed obligation of the royal power, undertaken in Magna Carta, to take no freeman, nor to “pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land.” Magna Carta, CAP. XXIX, Am Jur 2d Desk Book, Document No. 4, page 47. They, as men of the common law, knew also that this compact with the King formed the basis in England of the historic decisions that the Executive could not authorize searches and seizures. Huckle v Money, 2 Wils KB 205, 95 Eng Rep R 768 (1763) ; Entick v Carrington, 2 Wils KB 275, 95 Eng Rep R 807 (1765) ; Money v Leach, 3 Burr 1742, 97 Eng Rep R 1075 (1765); Wilkes v Wood, Lofft 1, 98 Eng Rep R 489.
In those cases, warrants had been issued by the Secretary of State to his petty officers authorizing them to make diligent searches for the unnamed authors, printers, and publishers of allegedly treasonable pamphlets and to seize them together with all their papers. In striking down the authority to issue such odious writs, the King’s Bench described requirements which, two decades later, found their way into our Fourth Amendment. Thus, Chief Justice Mansfield proclaimed, in Money v Leach, supra, at page 1088:
“It is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer. This is so, upon reason and convenience.
“Then as to authorities — Hale and all others hold such an uncertain warrant void: ...”
And in Entick v Carrington, supra, at page 818, Chief Justice Pratt declared:
“. . . This case was compared to that of stolen goods; Lord Coke denied the lawfulness of granting warrants to search for stolen goods, 4 Inst. 176, 177, though now it prevails to be law; but in that ease the justice and the informer must pro*457ceed with great caution; there must be an oath that the party has had his goods stolen, and his [sic] strong reason to believe they are concealed in such a place; but if the goods are not found there, he is a trespasser; . . .”
Elsewhere, Pratt exclaimed, “To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is ... a law under which no Englishman would wish to live an hour; . . . a most daring public attack made upon the liberty of the subject.” Huckle v Money, supra, at page 769. These sentiments were echoed by the Colonists when Royal governors sought to use the infamous Writs of Assistance as authority for general searches. In Paxton’s Case, 1 Quincy (Mass) 51 (1761), James Otis argued:
“. . . This writ is against the fundamental principle of law. . . . A man, who is quiet, is as secure in his house, as a Prince in his Castle— notwithstanding all his debts and civil processes of any kind. But for flagrant crimes, and in cases of great public necessity, the Privilege may be incrohd [sic] upon. For felonies an officer may break, upon process, and oath — i.e. by a Special Warrant to search such a house, sworn to be suspected, and good grounds of suspicion appearing. . . .” [Quincy, Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay Between 1761 and 1762.]
Of Otis’ argument, John Adams wrote, “Here this day, in the old Council Chamber, the child Independence was born.” Bowen, John Adams and the American Revolution, page 217 (1950). Following the American Revolutionary War, Otis’ words, based as they were upon the sturdy precedents of common law cited above, were enshrined in our Constitution’s Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That none may doubt the historical and continuing accuracy of the Amendment’s requirement for a judicial scrutiny of the issue of probable cause to authorize a search, I refer to the following language in Weeks v United States, 232 US 383, 58 L ed 652, 34 S Ct 341 (1914), at page 389:
“. . . [I]t took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, made against them. . . . Resistance to these practices had established the principle which was enacted into the fundamental law in the 4th Amendment, that a man’s house was his castle, and not to be invaded by any general authority to search and seize his goods and papers.
‘‘The effect of the 4-th Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of lano.” [Emphasis supplied.]
In Johnson v United States, 333 US 10, 92 L ed 436, 68 S Ct 367 (1948), at page 13, Mr. Justice Jackson remarked :
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies *458law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” [Emphasis supplied.]
And in McDonald v United States, 335 US 451, 93 L ed 153, 69 S Ct 191 (1948), the Supreme Court declared, at page 455:
. . [P]rivacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.” [Emphasis supplied]
These authorities establish beyond cavil the judicial nature of authorizing searches and seizures upon probable cause in' an unbroken line of precedents dating back to early colonial days. See Aguilar v Texas, 378 US 108, 12 L ed 2d 723, 84 S Ct 1509 (1964). Indeed, the power must not only be exercised by a magistrate, but he must judicially “perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” Aguilar, supra, at page 111.
It is wrong, therefore, to conclude that the Executive plays any role in authorizing searches and seizures or in passing on the issue of their necessity. This is, and has always been, a function of the judiciary. Its importance has become accentuated in the late years with the adoption of the position that receipt of evidence obtained in violation of the Fourth Amendment is directly barred by the Constitution rather than being a mere rule of evidence. Compare Mapp v Ohio, 367 US 643, 6 L ed 2d 1081, 81 S Ct 1684 (1961), with Wolf v Colorado, 338 US 25, 93 L ed 1782, 69 S Ct 1359 (1949). No matter how developed the law may have become in this area, though, the courts have steadfastly adhered to the necessity for a judge unconnected with the investigatory process to scrutinize the evidence and determine whether the invasion of the accused’s privacy is justified. I am compelled, therefore, to find the Constitution requires us so to characterize preliminary actions on searches.
II
The Military Magistrate
Questions concerning submission of questions of probable cause to nonjudicial officers seem, by their very nature, not to have arisen in civilian jurisdictions. The authorities cited, supra, as having dealt with the immutable requirement of the judicial officer passing on the issue, involved either failure to seek a warrant; no evidence to support a finding of probable cause; or similar violations of the Amendment. Always, however, there was in existence a magistrate, either unconsulted or, if consulted, who abused his discretion.
In the armed services, a quite different problem exists. It is immediately obvious that access to existent Federal or state magistrates has never been easy or practicable, particularly on isolated military installations in this country and, of course, in overseas areas, where no American civilian judge has operative authority. In consequence, commanding officers of units and installations long ago were recognized as possessing the judicial authority to authorize searches and seizures involving personnel and areas under their command. 1 Compilation of Court-Martial Orders, Navy Department, 1916-1937, page 816; Ibid., Volume 2, page 1349; Opinion of The Judge Advocate General, U. S. Army, JAG 250.413, July 23, 1930; Digest of Opinions of The Judge Advocate General of the Army, 1912-40, section 395 (27); United States v Lichtenberger, 4 BR 81, 135; United States v Berry, 9 BR 155, 157; United States v Wilson, 31 BR 231; United States v Owens, 54 BR 309; United States v Richardson, 77 BR 1; United States v Tooze, 3 BR-JC 313, 345; United States v Arteaga, 1 *459CMR 632. His authority in nowise depends upon Presidential regulations prescribed under Code, supra, Article 36.
Thus, in United States v Pogue, 68 BR 385, at page 393, it was declared:
“A search of Government quarters, authorized by the commanding officer having jurisdiction over the locality where such quarters are situated, is legal. Such authorization is the equivalent of a search warrant, the commanding officer being responsible for and having control over the personnel and property in his charge.”
And, in United States v Worley, 3 CMR (AF) 424, 442, it was recognized that:
. . On the other hand, the Commanding Officer with respect to property under his control has plenary power. He is fully and directly responsible to his Government for all action necessary to perform his duties. He has the power of investigation to determine whether a search should be made and to execute a search or direct its execution. In other words, he has the power of . . . the magistrate..."
This Court has long recognized this magisterial attribute of the commander’s office. United States v Swanson, 3 USCMA 671, 14 CMR 89; United States v DeLeo, 5 USCMA 148, 17 CMR 148; United States v Higgins, 6 USCMA 308, 20 CMR 24. In United States v Brown, 10 USCMA 482, 28 CMR 48, we pointed out the authority must be exercised upon a determination by the commander of the existence of probable cause to search an accused’s effects. And in United States v Davenport, 14 USCMA 152, 33 CMR 364, we said such a finding must be based upon information actually communicated to the commander. Finally, in United States v Hartsook, 15 USCMA 291, 35 CMR 263, we summarized our position. There, Judge Kilday, speaking for the Court, declared, at page 294:
. . Power to authorize a search is within the province of the commanding officer, including an officer in charge. Paragraph 152, Manual for Courts-Martial, United States, 1951. In this context he stands in the same relation vis-a-vis the investigating officer and an accused as the Federal magistrate. And we have so equated him. United States v Ness, 13 USCMA 18, 32 CMR 18; United States v Battista, 14 USCMA 70, 33 CMR 282; United States v Davenport, 14 USCMA 152, 33 CMR 364.
“As we have indicated, in military law the ‘independent judicial officer’ is the commanding officer to whom application for authority to search is made and it is his decision and not that of the investigating officers which governs ‘whether privacy is to be invaded.’ He personally weighs the evidence and determines the existence of probable cause.” [Emphasis supplied.]
The other Federal courts have likewise recognized the role of the military commander as a magistrate. In Richardson v Zuppann, 81 F Supp 809 (MD Pa) (1949), affirmed, 174 F2d 829 (CA 3d Cir) (1949), it was declared:
“ ‘. . . [A] search and seizure deemed necessary by the highest military commanders, ordered by them to be conducted in the manner customarily employed by the military, with their orders relayed down the chain of military command, and executed in an orderly manner by military personnel, cannot be termed unreasonable.’ ”
See also Best v United States, 184 F2d 131 (CA 1st Cir) (1950), cert den, 340 US 939, 95 L ed 677, 71 S Ct 480 (1951), wherein the court remarked, at page 140, of the search of accused’s apartment upon the commanding officer’s authority, that such was “clearly within the constitutional sanction.”
It is undeniable, therefore, that the exigencies of military life — necessity, if you will — have clothed the commanding officer with the judicial role of the ordinary Federal magistrate in connection with authorizing searches *460and seizures. Perhaps the office also finds its basis in legislative responsibility conferred upon commanders, as for example, in 10 USC § 5947. Be that as it may, it is certain that the authority is judicial; that in passing on questions of probable cause, the commander is a judge, and, as we have noted, he “personally weighs the evidence.” United States v Hartsook, supra. It exists independently of the Manual, supra, which merely sets forth a search which he authorizes as an example of “those which are lawful.” Manual, supra, paragraph 152.
Ill
Delegation of The Magisterial Function
As the question of determining the existence of probable cause is clearly judicial and as the commander, in making that finding, is a judge, may his duty be delegated to another person, officer or enlisted, who does not possess responsibility for the persons and property under the commander’s control and whose discretion and rank has not led him to be vested with the commander’s powers? That is the nub of the inquiry presented here, and it cannot be denied that the President has purported expressly to authorize such delegation.
Thus, the Manual, supra, provides, in paragraph 152:
“. . . The commanding officer may delegate the general authority to order searches to persons of his command.”
The Presidential authority to prescribe principles of law, however, was expressly limited by Congress to the power to lay down regulations governing the “procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals.” Code, supra, Article 36, 10 USC § 836. He has no authority to set down matters of substantive law, for such is confided by the Constitution solely to the .National Legislature. And that body has not seen fit to permit the Executive to go beyond the area of procedural and evidentiary matters. That is the entire point of the lengthy discussion, and collation of authorities in United States v Smith, 13 USCMA 105, 119, 32 CMR 105. As we there concluded of the Manual, supra:
“. . . [I]t is wholly understandable — perhaps even desirable — that the Manual, as a handy compendium on military justice, include statements concerning substantive principles of law. The fact that it does so, however, neither adds nor detracts from the validity of the rule set forth, as Congress did not delegate to the President the authority to fix substantive rules.” [Emphasis supplied.]
The question of conferring the authority to authorize searches upon another member of the command is clearly a substantive matter, for it vests in that individual a judicial office, the creation of which is solely a matter of legislative regulation. True, the distinction between matters of procedure and substance is not always clear, but the “test must be whether a rule really regulates procedure,— the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Sibbach v Wilson & Co., 312 US 1, 14, 85 L ed 479, 485, 61 S Ct 422, 426 (1941). See also Hanna v Plumer, 380 US 460, 14 L ed 2d 8, 85 S Ct 1136 (1965). And the conferring of an important responsibility to exercise judicial discretion upon an unnamed and unknown individual, so long as he is within the command, is the creation of a new office rather than a regulation of the judicial process. Moreover, it should be noted that there is no limitation on this purported authority, which permits delegation to any person, regardless of his status and capacities. And, if the President has the authority so to prescribe, then we will have no judicial power to question the reasonableness of its exercise. The matter is set down without limitation. Hence, it seems to me that this matter is quite without the *461purview of Presidential power. Code, supra, Article 36; United States v Smith, supra.
Moreover, delegation of such judicial authority, the magisterial character of which has been clearly demonstrated, has long been prohibited. Thus, it “has often been held that a judge may not delegate his judicial authority or the performance of judicial acts, even with the consent of parties . . . there can be no such thing as a deputy judge.” 30A Am Jur, Judges, § 29. Or, as stated in Morrow v Corbin, 122 Tex 553, 62 SW 2d 641 (1933), at page 645:
“We are equally clear that the power thus confided to our trial courts must be exercised by them as a matter of nondelegable duty, that they can neither with nor without the consent of parties litigant delegate the decision of any question within their jurisdiction, once that jurisdiction has been lawfully invoked, to another agency or tribunal, and that any legislative act attempting to authorize such a delegation of authority is inconsistent with those provisions of the Constitution which confer jurisdiction on the trial tribunals.”
See also Ex parte Alabama State Bar Ass’n., 92 Ala 113, 8 So 768 (1891) (“Special Judge” named to hear disbarment proceeding), and Ellerbe v State, 75 Miss 522, 22 So 950 (1898) (Judge improperly designated member of bar to preside in murder trial while he visited sick friend).
How then do my brothers find the President may properly provide in the Manual, supra, for the commanding officer, without any guidelines, to name any member of his command, as competent to pass on the existence of probable cause? First, they conclude: “This is clearly a procedural matter committed to the President.” From that springboard, they launch into a comparison of the Manual provision with Rule 41, Federal Rules of Criminal Procedure, and find that, as that Rule designates officers who may issue search warrants, so may the President, under his express authority to redelegate his powers, provide for the commander to name a subordinate and clothe him with judicial authority. Finally, they declare, not that a commander is a magistrate in dealing with search and seizure questions, but only that he must approach them with a “judicial” attitude.
For the reasons set out above, I suggest the initial premise of my brothers’ view, i.e., that this is a procedural matter, is incorrect. As I have noted, the net effect here is not to prescribe a rule of practice, but to provide for the creation of judicial offices. Cf. Sibbach v Wilson & Co., supra. Secondly, Rule 41, rather than supporting this approach, really refutes it, for it appoints no new judges, nor does it create magistracies. Instead, it makes it permissible for already existing judicial officers to issue Federal search warrants. Clearly, this is a matter of procedure, but how unlike the Manual provision it is Finally, the entire history of the Fourth Amendment and the cases dating back in an unswerving line to our English antecedents mark out the judicial character of passing on questions of probable cause. So also do our own holdings, which refer to the commander as the counterpart of “the Federal magistrate,” who “personally weighs the evidence and determines the existence of probable cause.” United States v Hartsook, supra, at page 295. Such is a far cry from a conclusion that he merely must look at the evidence judiciously.
In conclusion, I can only state I am convinced by precedent and constitutional history that it was the intent of the framers forever to guard against ruthless use of Executive power by confiding the question of determining probable cause for searches and seizures to the judiciary. It may be the Amendment does not expressly state this proposition, but its use of the term “warrant,” clearly connotes resort only to the judicial process. It must be read, as the Supreme Court has said, in light of the English precedents cited. Boyd v United States, 116 US 616, 29 L ed 746, 6 S Ct 524 (1886). Thus construed, it requires *462judicial action to issue a warrant. In the ,military, this has long been the function of the Commander. I cannot join in permitting the executive to authorize him to rid himself of this important duty by conferring it on someone else. So to act, I think, is a matter of substantive law which, at the least, requires Congress’ action, particularly in light of the basic prohibition against delegation of magisterial responsibilities. Accordingly, I note my dissent to the proposition which they advance.
I would reverse the board of review and order a rehearing.