declarations tending to secure corporal liberty. Any personal detention contrary to these provisions is unlawful, whether it be in the public streets, in prisons, in private houses, or elsewhere. And now the question arises, How is a person unlawfully detained to recover his liberty? Both the federal and State constitutions declare that "the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it." By the writ of habeas corpus is here meant, that high and imperative writ, which issues as a matter of peremptory right, in favor of any person who is in confinement or detention, in any manner whatsoever, except it be on conviction of some offence, for which his imprisonment is the punishment, as provided in our statute. By virtue of this writ, the person so detained is carried at once before a judge to have the cause of his detention investigated, and if it appear to be unlawful, he is immediately set at liberty. No comment can make the importance of this privilege more manifest than the bare statement of what it is. In fact, it is universally regarded as the grand bulwark of corporal liberty; and hence the precaution to declare that it shall never be suspended, except in cases of the most overpowering necessity. There is, moreover, in addition to the recovery of liberty, a remedy in damages for the unlawful detention, by an action for malicious prosecution or false imprisonment; but these do not belong to our present discussion.

§ 79. Religious Liberty. (a) The reason why government ought not to interfere with religion is, that religion is a matter exclusively between man and his Creator. Yet, clear as this proposition is, almost every government in the world, except ours, has made religion a matter of state; until the union of church and state had almost become a political axiom. If we take England as an example, we find that a very large portion of her laws have relation to her religious establishment. Indeed, we owe the first settlement of this country to her interference with the consciences of her subjects. The first colonists came here to enjoy that religious liberty which was denied them at home. And the doctrine for which they sacrificed so much is now incorporated into all our constitutions. The federal constitution, in the first amendment, declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;' writ of habeas corpus, to pass upon the legality of the detention of persons who are in the custody of the United States officers, and to discharge them from such custody, has recently been passed upon in elaborate decisions. In re Booth, 3 Wisconsin, 1, Ex parte Booth, id. 145; In re Booth and Rycraft, id. 157; Bagnall v. Ableman, 4 id. 163; Ableman v. Booth, and United States v. Booth, 21 How. 506; Ex parte Bushnell, 8 Ohio State, 599; Ex parte Collier, 6 id. 55. When in an application to a State court it appears by the return that the prisoner is held under the authority, or claim and color of authority, of the United States by an officer of the government, the court can inquire no further, but must refuse the writ. Tarble's case, 13 Wall. 397. This writ cannot be used as a summary protest to review or revise errors or irregularities in the sentence of a court of competent jurisdiction. Ex parte Shaw, 7 How. 81; Platt v. Harrison, 6 Clarke (Iowa), 79.

(a) 2 Kent, Com. 34.

and, in another place, that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Our State constitution contains a still more full and emphatic declaration, in these words: "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship against his consent; and no preference shall be given by law to any religious society; nor shall any interference with the rights of conscience be permitted. No religious test shall be required as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction." The result is, that we enjoy an entire freedom of conscience in religious matters; and that we have very few legislative provisions in any way connected with religion. We have seen that in the first two sales of land by the federal government, within the State, one section in each township was set apart for the support of religion a thing which has not been done since the adoption of the federal constitution; and there are some legislative provisions relating to the management of these lands. But, with these exceptions, the only provisions we have in any way connected with religion, are those which prohibit the disturbing of religious societies when met for the purpose of worship, and which secure to such societies a perpetuity in their lands used for church purposes, without a specific act of incorporation.

§ 80. Liberty of Speech and of the Press. (a) It has been well remarked that there is little danger from error of opinion, when there is a free opportunity to expose and correct it by speech, and by the press. This, then, is one motive for securing this branch of liberty. And another is to secure the accountability of public agents. Public opinion is the tribunal before which a corrupt or unfaithful officer most fears to be arraigned; but the efficiency of this restraint depends chiefly upon the freedom with which every one is allowed to express his opinions on public affairs. Without adverting, therefore, to the high considerations growing out of the sacredness of the right, abstractly viewed, we find in expediency alone a sufficient reason for securing to opinion the utmost freedom, both as to its formation and expression. Accordingly, the federal constitution declares that "Congress shall make no law abridging the freedom of speech or of the press." Our State

(a) See 2 Story, Const. § 1880; 2 Kent, Com. 19; 4 Black. Com. 151; Starkie on Slander; Holt on Libel; Ohio Code, §§ 16, 124, 125, 399, 552.

constitution is more diffuse in its language. It begins by declaring that "every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right, and no law shall be passed to restrain or abridge the liberty of speech or of the press." This qualification is tacitly annexed to every species of civil liberty. They who abuse it are held liable for the injury resulting from such abuse. It was well, however, to guard the above declaration against the possibility of cavil. The doctrine then is, that the liberty of speech and of the press consists in freedom from previous censorship or restraint, and not in exemption from subsequent liability for the injury which may thereby be done. And, accordingly, the law makes provision by which the person injured may have his civil action of slander or libel, to recover damages done to his reputation; and by which the libeller may be criminally prosecuted as an offender against the public peace. Again, it is declared, that "in all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted." The common-law doctrine is, that in a civil action, either for verbal or written slander, the truth may always be given in evidence; but on an indictment for a libel, never; because the criminality of a libel consists in its tendency to disturb the public peace, which tendency would be the same whether the libel was true or false. And this agrees with our statutory definition of a libel, which requires it to be "false or malicious." This provision, therefore, alters the common law only when the libel" was published with good motives, and for justifiable ends." In such cases, the truth may be given in evidence; but in other cases, it is no justification. This distinction is rational and well founded. The truth ought to be published, when it concerns the public to know it; but private matters, even though true, ought not to be made public, in order to disgrace private individuals without benefiting the public.

In conclusion, it is proper to remark, that the true nature of that liberty and equality which we have now been considering, is often mistaken or misrepresented. We have seen that civil liberty is liberty protected and restrained by law; and that social equality is only an equality of rights and obligations, as determined by law. In this view, both are so mutually dependent upon each other, that neither can exist without the other. But this is true only of liberty and equality as above defined; for an absolute equality of condition is incompatible with any degree of liberty. What is it to be born free, and to live free, but to have the capability of carving out our own particular fortunes for ourselves, and thus differing indefinitely from those around us? It would require more than a Nero's despotism to reduce all men to a strict level, and keep them there. Even the most abject of slaves will differ in condition. Inequality of condition, therefore, is the natural offspring of civil

liberty and equality of rights. But how often has this great truth been lost sight of! We need not go to the ostracisms, the persecutions, and the banishments of ancient Greece or Rome, for examples. We need not even go so far back as the reign of terror in France, when the guillotine was employed, in the name of liberty, to bring about an absolute equality. We may find alarming indications of the same spirit at home. Under the magic name of equality, the doctrines of agrarianism are beginning to be openly avowed; and unprincipled demagogues are industriously sowing the seeds of jealousy and disaffection between the rich and the poor, the intelligent and the ignorant, the illustrious and the obscure. These distinctions they would abolish, not by the regular results of free and generous competition, but by the combined force of numbers trampling down superiority. And liberty has been perverted in a similar manner. The people are told that their voice is the voice of God; in their self-love, they take this hackneyed saying literally; and what then is the majesty of law, if it happen to stand in the way of their capricious will! There can be but one earthly supremacy; and if this is to be found in the fitful ebullitions of popular feeling, the boasted supremacy of law becomes a mere name. This position is too clear for argument. If the people are to rise against their own laws, and suicidally trample them under foot, and if public opinion is to sustain them in so doing, there can be no such thing as security; for we shall hold our rights at the mercy of a mob of tyrants the most arbitrary and inexorable; and the signs of mob rule have of late been fearfully multiplying, both in theory and practice. Doctrines have been advanced in high places which clearly sanction popular violence against obnoxious laws; and in almost every quarter of the country, practice has followed precept, and the laws have been tumultuously set at defiance. These things may well excite alarm in every patriotic bosom. If a determined stand be not taken by the friends of order against these tendencies towards the subversion of order, the most fearful convulsions may well be apprehended. Let it never be forgotten, that the sole tenure by which we hold our rights, is the absolute and unquestioned supremacy of the law. This must be maintained, and insubordination prevented, at all hazards. The mob must be kept down, cost what it may otherwise the days of free government are numbered. Here is our Rubicon, and it must not be crossed.

§ 81. Right of Property. We have seen that "the right of acquiring, possessing, and protecting property," is set down in our constitution among "the unalienable rights. Whether it be so or not, is a matter of speculation, upon which I shall not waste time. It is enough for us, that the right of property exists under the social compact, and that the protection and regulation of it form a leading object of municipal law. Property, as we have seen, is either in possession or in expectation, and the declarations. now to be discussed relate to both descriptions of property, with a view to secure its inviolability by government.

Property in Possession. (a) The language of the ordinance of 1787 is, "Should the public exigencies make it necessary for the

The

(a) See 2 Story, Const. § 1790; 2 Kent, Com. 338; 1 West. Law Jour. 371; Bates v. Cooper, 5 Ohio, 115; Willyard v. Hamilton, 7 Ohio, part 2, 111; Cooper v. Williams, 4 Ohio, 253; Cooper v. Warren Canal Company, 7 Ohio, 242; Parks v. Boston, 15 Pick. 207; Schuylkill Company v. Thobarn, 7 Serg. & R. 422; In re Albany Street, 11 Wendell, 153; In re Furman Street, 17 Wendell, 670; Gardner v. Newburgh, 2 Jolins. Ch. Rep. 162; Beekman v. Saratoga Railroad Company, 3 Paige, 45; Rogers v. Bradshaw, 20 Johns. 735; McArthur v. Kelly, 5 Ohio, 139. In Gardner v. Trustees of Newburgh, 2 Jolins. Ch. Rep. 162, the facts were these: Gardner owned a farm through which a stream flowed, which he used for various valuable purposes. stream issued from a stream on his neighbor's farm. The legislature authorized the trustees to take water from the spring in pipes for the use of the town of Newburgh, but made no provision for making up to Gardner the loss he would sustain by diverting the water. Held, that he was entitled to a fair compensation before the water could be diverted; and, as the law made no provision therefor, an injunction was granted. In Rogers v. Bradshaw, 20 Johns. Rep. 735, the facts were these: The legislature of New York authorized the canal commissioners to take lands necessary for the canal. It became necessary to use the turnpike track for the canal, and to construct a new turnpike on Bradshaw's land. He brought trespass. Held, that trespass would not lie. Bradshaw was entitled to compensation; but as his land was necessary for the new road, which was rendered necessary by the canal, the commissioners were not trespassers. A turnpike is a public road. Dictum, that even though an act taking private property for public uses makes no provisions for compensation, it still shields the persons entering from liability as trespassers. And see 2 Kent, Com. 339, note. In Beekman v. Saratoga Railroad Company, 3 Paige, 45, the facts were these: The company had projected the railroad over Beekman's land, the only convenient place. He had refused his consent, and would make no agreement for compensation. Pursuant to the charter, the governor had appointed commissioners, who had appraised damages, and the amount was deposited in bank for Beekman, who had notice of the fact. He applied for an injunction, which was refused. Held, that a railroad was a public use, if the legislature chose so to consider it, for which private property might be taken. That the government might exercise the right of eminent domain through a private corporation. That the charter must provide a fair mode of ascertaining the compensation, but it need not be a jury, since the constitutional guaranty of a right to a trial by jury relates only to a trial of issues of fact in civil and criminal cases in courts of justice. And see Willyard v. Hamilton, 7 Ohio, part 2, 111. In Cooper v. Williams, 4 Ohio R. 253, the facts were these: The law authorizing the construction of the Ohio canal empowers the commissioners to take any land, water, or materials necessary; and if application be made within one year for compensation, they are to appoint three or five appraisers to assess damages, deducting benefits, which award the commissioners are to pay. Cooper owned land on Mad River, commanding a large water-power, part of which he was using. The canal commissioners constructed a dam above him, and a feeder, by which they took out three thousand cubic feet per minute, which greatly diminished the water-power Cooper might use on his land. This quantity was necessary to supply the canal. On its transit, two-thirds could be used as water-power, which the commissioners proposed to sell for the use of the State. Cooper applied for an injunction, which was refused. Held, that Cooper was entitled to compensation for any of his land taken, or for any loss of the use of water flowing by or through his land. But he had no such right in the water of Mad River, that the State might not take so much of it as the canal required, making compensation. And having taken it, the State might use it in its transit, or sell the use of it. The same was affirmed in Cooper v. Williams, 5 Ohio R. 391. In Bates ". Cooper, 5 Ohio R. 115, the direct question of the constitutionality of the canal laws as to taking private property was presented, and their constitutionality sustained. The intimation is, that it is sufficient, if the law provides some equitable mode of ascertaining compensation, without requiring it to be assessed and paid over before proceeding with the work. In McArthur v. Kelly, 5 Ohio R. 189, the whole subject of jury trials is very fully considered. The particular point decided is, that, as our constitution requires the compensation to be in money, the legislature cannot authorize the canal commissioners to compensate one man for the injury he will sustain in his water-power, by constructing a mill-race on the land of another In Young v. Buckingham, 5 Ohio, 485, the legislature authorized the erection of a toll-bridge over the Muskingum, providing that damages should be estimated by three commissioners appointed by the court of common pleas. Only two of the com

man.