specific prohibition. Probably it was deemed unnecessary to express what was so manifestly implied. An arbitrary government may make partial laws without inconsistency, for it does not profess the doctrine of equality; but in a republic, such laws would be as absurd and inconsistent as they are odious. Every thing, therefore, in the shape of monopolies, is prohibited by the spirit, if not by the letter, of the constitution. Let us not, however, carry this doctrine too far. It is not necessary that laws should in all cases include every individual in the community; they will, escape. the imputation of partiality, if they include all persons similarly situated. The doctrine of equality only requires that they shall not exclude any persons coming within the principle of their operation; and hence it is that our numerous corporations, with special privileges and franchises, are not unconstitutional, so long as their charters exclude no class of persons from becoming members. § 78. Corporal Liberty. (a) As a general proposition, every individual, under our government, is at full liberty to go wheresoever, or do whatsoever he chooses, provided he does not interfere with the rights of other persons. This may be called his corporal liberty, or liberty of action. Again, every individual is at full liberty to adopt and practice such doctrines as he chooses on the subject of religion, provided he does not interfere with the rights of others. This is denominated his religious liberty. Lastly, every individual is at full liberty to speak, write, print, or publish whatsoever he chooses, provided he does not interfere with the rights of others. This is what we understand by the liberty of speech and of the press. I shall consider separately the provisions relating to each of these three branches of liberty beginning with corporal liberty. Individuals can only be deprived of this, in three classes of cases. First, by arrest in civil cases; secondly, by arrest in criminal cases; and thirdly, by standing towards another in the relation of subjection. With regard to arrest and detention in civil cases, we have already considered that declaration of our State constitution, which secures every one against imprisonment for debt, if he will honestly surrender up his property for the benefit of his creditors. It only remains, therefore, to consider the detention of the person in the other two classes of cases. And, first, with regard to arrest and detention in criminal cases, there are numerous declarations tending to secure individuals against all injustice, from the moment of arrest down to the final conviction and punishment. I shall briefly describe

these in their order.

Searches and Seizures. (b) It is declared by the fourth amend

any law as to all persons, it cannot exercise this power with respect to any particular individual. It was manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others in like circumstances. The constitution of Ohio declares that "all laws of a general nature shall have a uniform operation throughout the State."

(a) See 1 Black. Com. 134; 2 Kent, Com. 26.

(b) See 2 Story, Const. 1901; 4 Black. Com. 291; Ex parte Burford, 3 Cranch,

ment of the federal constitution, that "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." There is a similar declaration in our State constitution. The effect is, that no person can be arrested, or his premises searched, without a warrant, from the proper authority, issued upon the oath of some individual, and particularly describing the person, place, or offence. In England, prior to 1763, a practice had grown up, of issuing general warrants for the apprehension of suspected persons, or the searching of their premises, without naming them, or describing their offence; whereby great injustice was done to innocent persons. These warrants were decided, in that year, to be against the common law, and were accordingly suppressed. (a) But the apprehension that they might be revived in this country, was a sufficient reason for making this declaration.

Bail. (b) Between the arrest and trial, the accused must either be detained in prison, or held to bail. Our constitution declares that "all persons shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or the presumption great" and both constitutions declare "that excessive bail shall not be required." The manner of taking bail will be described hereafter. Suffice it here to say, that these declarations sufficiently secure the liberty of the accused between the arrest and trial.

Mode of Accusation. (c) The fifth amendment of the federal constitution declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger." Our constitution excepts "petit larceny and other inferior offences." The two words presentment and indictment, mean the same thing in our practice; namely, a formal accusation drawn up by the prosecuting officer, and found to be

447; Ex parte Bollman, 4 Cranch, 75; Money v. Leach, 3 Burrows, 1843. As to the description to be made and other proceedings in cases of seizure, see Green v. Briggs, 1 Curtis, C. C. R. 311; State v. Robinson, 33 Maine, 564; Fisher v. McGurr, 1 Gray (Mass.), 1.

(a) The legality of such general warrants, known as writs of assistance, was contested before the supreme court of the colony of Massachusetts in 1761. It was the occasion of the celebrated argument of James Otis, which was said by John Adams to have given birth to American independence. Works of John Adams, vol. 1, p. 57; vol. 2, Appendix A; vol 10, pp. 314, 362.

(b) The provision of the federal constitution does not apply to the State governments. Commonwealth v. Hitchings, 5 Gray, 482. Privear v. The Commonwealth, 5 Wallace, 462.

(c) See 2 Story, Const. § 1782; 4 Black. Com. 302. This provision requiring indictments does not prevent the legislature from making changes in the technical form of indictments. Lougee v. The State, 11 Ohio, 68; Wolf v. The State, 19 Ohio St. 248. Nor does it render unconstitutional the provision of the criminal code, that in case of a plea in abatement of misnomer, the true name shall be substituted and the trial proceed. Lasure v. The State, 19 Ohio St. 614.

true by a grand jury, consisting of fifteen impartial persons acting under oath, of whom twelve at least must concur, before the accused can be put upon his defence; and their deliberations are conducted under an oath of secrecy, in order that, if an indictment be not found, the grounds of suspicion may not be divulged. The result is, that the common-law mode of proceeding by information is here abrogated, except with regard to the minor offences. This was an accusation filed by the prosecuting officer in his official capacity, upon which the accused was brought to trial, without the intervention of a grand jury. We have already seen the impeachment of officers for official misconduct requires an accusation to be first made and concurred in by a majority of the house of representatives. So that we are well secured against being brought to trial, in any case, without probable cause.

Trial. (a) Both the federal and State constitutions contain several declarations relating to the trial, in nearly the same words. 1. "In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel." The ancient common law inhumanly denied the right of having counsel in capital cases, though it was permitted in trials for minor offences; but, in conformity with the above declaration, both the federal and State courts are required to assign counsel, not exceeding two, in all cases when the accused is not able to employ them; and they have access to him in prison at all reasonable hours. 2. "To demand the nature and cause of the accusation against him, and to have a copy thereof." Accordingly, the federal and State laws provide that the accused shall be furnished with a copy of the indictment before the trial. (b) 3. "To meet the witnesses face to face." Accordingly, written evidence, by depositions, cannot be used in criminal cases, unless by consent. The accused may always claim the right of hearing the evidence against him from the lips of the witnesses, that their whole bearing and demeanor may be noticed by the jury, and any bias, evasion, or concealment detected. (c) 4. To have compulsory process for obtaining witnesses in his favor." Anciently, the accused could not even have witnesses examined for him. But the federal and State constitutions not only secure this privilege, but also give him the same means of compelling their attendance that the government has. The mode of compulsion will be considered hereafter. 5. "To have a speedy public trial, by an impartial jury of the county or district in which the offence shall have been committed." (d) First, the trial shall

(a) See 4 Black. Com. 355; 2 Story, Const. § 1792; People v. Smith, 3 Wheeler's Criminal Cases, 100. The provisions of the fifth and sixth amendments to the constitution of the United States do not apply to crimes under the State laws. Twitchell v. The Commonwealth, 7 Wall. 321; Prescott v. The State, 19 Ohio St. 184. (b) This right may be waived. Fouts v. The State, 8 Ohio State, 98.

(c) This clause does not exclude evidence of dying declarations, or of the testimony given by a deceased witness, on a former trial between the same parties. Summons. The State, 5 Ohio State, 325.

(d) It has been held that the court may, at the election of the defendant, try the issue. Daily v. The State, 4 Ohio State, 57; Dillingham v. The State, 5 id. 280. But

be speedy. The accused, who is presumed innocent until proved guilty, shall not long be kept in suspense. Accordingly, it is provided, that, unless there be some strong reason for delay, he may insist upon being tried at the first term after the arrest. Secondly, the trial must be public. There can be no star-chamber proceedings. All must be done in the face of day. Thirdly, the trial must be by an impartial jury; but the various statutory provisions tending to secure their impartiality, will be considered hereafter. Fourthly, the jury must be taken from the county, in trials under the State law; and from the district, in trials under the federal law; unless it appear that a fair trial cannot there be had. Thus the accused is saved the expense of a distant trial, and has the advantage of the good opinion he may have established in his own neighborhood. 6. "Shall not be compelled to give evidence against himself." This does not exclude voluntary confessions, but precludes all resort to torture and the rack, or any other compulsory means, to extort confessions 7. "Shall not be twice put in jeopardy for the same offence." (a) This is only the affirmance of a great common-law right. The meaning is, that a person shall not be tried a second time for any offence, after having been once acquitted or convicted of that same offence, by the verdict of a jury, on which judgment has been pronounced. But if the jury disagree, or a new trial be allowed, or judgment be arrested, the jeopardy here contemplated has not once existed, and another trial may be had.

Punishment. Both the federal and State constitutions declare, that "excessive fines shall not be imposed; nor cruel and unusual punishments inflicted." (b) We have already considered the federal power of punishment, both enumerated and incidental. For the rest, the power of punishment belongs to the States. In either case, however, if fines be imposed, they cannot be excessive; and if any other mode of punishment be provided, it must neither be cruel nor unusual. By cruel, is here meant barbarous. Death is a cruel punishment; yet death is inflicted in one case under the laws of Ohio, and in several cases under the laws of Congress. The declaration then only means that there shall be no unnecessary

it has since been held, that, in the higher grades of crime at least, it is not in the power of the accused to waive a trial by jury, and consent to the finding of the facts by the court. Williams v. The State, 12 Ohio State, 622. At common law, juries, it has been held, were the exclusive judges of evidence, but were bound both in civil and criminal cases to receive the law from the court. Commonwealth v. Porter, 10 Met. 263; Commonwealth v. Anthes, 5 Gray, 185; Williams v. The State, 10 Ind. 503; Pierce v. The State, 13 N. H. 536.. Montgomery v. The State, 11 Ohio, 424; Robbins v. The State. 8 Ohio State, 131. In some of the States, there are statutes by which the jury is made the judge of the law in criminal cases. Such an act was pronounced contrary to the State constitution in Massachusetts, in Commonwealth v. Anthes.

(a) See 4 Black. Com. 335; 2 Story, Const. § 1787; People v. Goodwin, 18 Johns. 187; Poager. The State of Ohio, 3 Ohio State, 229. Dobbins v. The State, 14 Ohio State, 493; Stewart v. The State, 15 Ohio State, 155; State v. Behimer, 20 Ohio State, 572.

(b) This provision in the national constitution applies only to the legislation of the United States. Privear v. The Commonwealth, 5 Wallace, 462.

torture or barbarity. And since the punishment cannot be unusual, no room is left for the exercise of that horrid kind of ingenuity, which delights itself in devising new modes of punishment. And when we come to the department of criminal law, we shall find that the pledge here given has been faithfully kept. Probably the world does not furnish a more humane and simple criminal code than that of Ohio. But the proportioning of punishment to the offence has always been a matter of difficulty. No legislature can beforehand so graduate the scale of punishments, as to adapt them exactly to all the varying shades of criminality; and therefore the expedient adopted both by the federal and State legislatures is, to fix certain limits within which the discretion of the court may range, in apportioning the punishment to the facts of the case. The remaining provisions relating to punishment are found only in the State constitution, and are as follows: First, "no person shall be transported out of the State, for any offence committed within the same." In other words, banishment cannot be resorted to as a mode of punishment. Secondly, "no conviction shall work corruption of blood or forfeiture of estate." There is a similar provision by Congress in the act of 1790. It was a barbarous doctrine of the English law, (a) that a conviction of any of the high offences was followed by the two consequences here prohibited; namely, a corruption or attaint of blood, so that the convict could neither inherit nor transmit inheritance; and a forfeiture of his present property. In this way, his innocent kindred suffered for his guilt.

Domestic Detention. (b) This may happen in consequence of the relation of a minor to his parent or guardian; an idiot or lunatic to his guardian; a wife to her husband; an apprentice to his master; and a slave to his master.

Habeas Corpus. (c) I have thus adverted to the constitutional

(a) See 4 Black. Com. 381.

(b) Our only constitutional provision upon this subject is, that "there shall be no slavery in this State; nor involuntary servitude, unless for the punishment of crime."

(c) See 2 Story. Const. § 1338; 3 Black. Com. 131; 2 Kent, Com. 26; Hurd on Habeas Corpus. This writ appears to have originated with Magna Charta, and to have taken the place of the writ de homine replegiando, as the great writ of liberty. It it said to be a writ of right, but not a writ of course, since cause must be shown. Lawrence's case, 5 Binney, 304; Ferguson's case, 9 Johns. 236. It issues generally to try the legality of any detention by commitment or otherwise. Among the leading cases are Gregory's case, 4 Burr. 1991; U. S. v. Greene, 3 Mason, 482; Commonwealth v. Briggs, 16 Pick. 203; Mercein v. People, 25 Wendell, 64 ; Commonwealth v. Addicks, 5 Binney, 520; Stacey's case, 10 Johns. 328; Somersett's case, 20 State Trials, 1; U. S. v. Jones, 3 Wash. C. C. R. 224. Among the debated questions are, whether the return can be contradicted; whether a writ of error will lie; and whether one tribunal will inquire into a contempt against another; as to which, see Anderson v. Dunn, 6 Wheaton, 204; Burdett v. Abbott, 14 East, 152, 201; Yeates ". The People, 6 Johns, 519; Holmes v. Jennison, 14 Peters, 540; In re Falvey ». Massing, 7 Wisconsin, 630. The power of the federal courts depends upon the 14th section of the act of 1789, 1 Stat. at Large, 73; and the 7th section of the act of 1833, 4 Stat. at Large, 634. See Bollman's case, 4 Cranch, 75; Watkins' case, 3 Peters, 201; Williams' case, 9 Peters, 704; Dorr's case, 3 How. 105; in the matter of Metzger, 5 id. 176; In re Thomas Kaine, 14 id. 103. The jurisdiction of the State courts, by means of the