it; because, otherwise, every transgressor would set up the plea of ignorance. When laws are prospective in their provisions, and are promulgated before they take effect, there is no hardship in this maxim; for it is at least possible to know them. But when they are made to act backwards upon that which transpired before their existence, this maxim becomes inhuman, since it holds men responsible for knowing what they could not possibly have known. Again, retroactive laws are as absurd as they are unjust. The design of a law is to regulate conduct; that is, to fix a rule for it; and the idea of regulating past conduct involves an absurdity in terms. You may attach a new consequence to a past transaction, but this is not regulating it; for that which is past is beyond regulation. It cannot be altered, recalled, or avoided; and, therefore, ought not to be legislated upon. Give a legislature power to pass retroactive laws, and no one can be safe; since his whole past life is liable to be animadverted upon. For such reasons as these, it is obvious that retroactive laws are fit only for tyrants to make, and slaves to submit to. Accordingly, some of the State constitutions contain a general prohibition of retroactive laws; and it is to be regretted that any should have omitted such a prohibition. But the federal constitution only prohibits three classes of retroactive laws; namely," ex post facto laws," "bills of attainder," and "laws impairing the obligation of contracts." And the specific prohibition of these is so far held to sanction others, that though a court will never construe a law to be retroactive which is not made so in its

It has been seen that retroactive laws are now prohibited in Ohio. In Ogden v. Blacklege, 2 Cranch, 194, the only real difficulty occurs. There was a law of 1715, in North Carolina, limiting the time of producing claims against deceased persons to seven years. This law was repealed in 1789, and a suit was in consequence commenced by a creditor, after the former limitation had expired; he now having a legal right to sue. But a law was afterwards passed, declaring that the law of 1789 did not repeal this part of the law of 1715. The effect of this law, supposing it constitutional, was to restore the limitation, and so defeat the suit in question. But the supreme court sustained the suit, and thus virtually set aside the last law. No reasons are given in the meagre report to show the want of power to pass such a law, and we are left entirely in doubt as to how far the decision intendel to go, or what were its grounds. Under these circumstances, I think very little importance is to be ascribed to the case. And so said Judge Spencer, in his opinion in the case of Dash v. Van Kleeck, 7 Johns. 477. He did not feel bound by a decision, not only at variance with the opinion expressed by the same court in the anterior case of Calder v. Bull, “but so utterly destitute of reasoning or authority to support it." On the whole, then, I leave this subject with the remark, that, however revolting to our sentiments of justice retroactive laws may be, it seems clear from the foregoing authorities, that, apart from the express prohibitions of the constitution as already explained, our only safeguard against them is to be found in the good sense and right feelings of our legislators. See 21 Law Reporter, Dec. 1858, 449, on the power of the legislature over private property. As to legislation on remedies existing when a contract was made, see cases cited ante, p. 147. note. See Sedgwick on Statutory and Constitutional Law, pp. 198, 406, 479, 484, 630, 696. In McMillan v. County Judge, 6 Clarke (Iowa), 391, it is held that where the legislature possesses the power to authorize an act to be done, it may by a retrospective act legalize any informality in the exercise of the authority so conferred. Retrospective laws, however, will be strictly construed so as to confine their operation within as narrow limits as the language of the law will allow. Hedges v. Rennaker, 3 Met. (Ky.) 255; Bay v. Gage, 36 Barb. 447. The Ohio constitution of 1851 prohibits retroactive legislation. It has been held that a law requiring local authorities to issue bonds to pay bounties to veteran volunteers already enlisted is not retroactive. State v. Richland Tp., 20 Ohio St. 362.

terms, yet if expressly made retroactive, a court will not declare it void, on the ground of injustice, unless it comes within one of the above classes. I have already spoken of laws impairing the obligation of contracts. It therefore only remains that I describe the other two. 1. Ex post facto laws. (a) These have been decided to mean retroactive criminal laws, and no other. The prohibition extends to every law which makes an act punishable in a mode or measure in which it was not punishable when the act was committed, unless it be to diminish the punishment. With this exception, criminal laws can only operate upon future acts. Men may be benefited, but shall not be injured by laws which did not exist when the act was done. We are safe, therefore, against retroactive criminal laws. 2. Bills of attainder. (b) A bill of attainder is a special legislative act, inflicting punishment for an offence already committed, without a conviction in the ordinary course of justice. It may take life, or confiscate property, or both. It has, therefore, the double enormity of being an ex post facto law, and an usurpation of judicial power. The bloodiest pages of English history are those which record the inhuman exercise of this fearful power. No wonder, then, that it is universally prohibited in this country.

§ 84. Security against the Suspension of Laws. Our State constitution declares that "no power of suspending laws shall be exercised, except by the general assembly." Perhaps it may be asked, What other power than the legislature could suspend laws? None certainly without usurpation. The power to suspend a law is the same as the power to make it; for one law can only be suspended by making another to suspend it. Hence the exception in favor of the legislature. The provision, therefore, must have contemplated a very remote possibility of usurpation by the executive, judicial, or military departments. We have seen that there is one law, securing the privilege of the writ of habeas corpus, which cannot be suspended even by the legislature, unless in the extreme emergencies of rebellion or invasion.

§ 85. Right of Education. (c) Were it not that in times past, knowledge, more than any other of heaven's gifts, has been monopolized by the few to the exclusion of the many, it might seem superfluous to provide for it in a bill of rights. But our State constitution, copying the ordinance of 1787, declares that "religion,

(a) See the case of Calder v. Bull, in the preceding note; Mad. Pap. 1399, 1400. Cumings v. Missouri, 4 Wall. 326; Gut v. The State, 9 Wall. 35.

(b) See 2 Black. Com. 251; 4 Black. Com. 381; 2 Story, Const. § 1343; Mad. Pap. 1400. This term bill of attainder in the constitution embraces both what were known in the English law as bills of attainder, and bills of pains and penalties. Drehman v. Stifle, 8 Wall. 595.

(c) Since the text was written, the school system has been constantly improving by the results of experience; and its benefits have now become so universally accessible, that it is becoming a serious question, whether the right of suffrage ought not to be made dependent upon the ability to read and write. The father of a child entitled to the benefits of the public school of the sub-district of his residence may maintain an action against the teacher of the school and the local directors of the sub-district, for wrongfully expelling the child from school. Roe v. Deming, 21 Ohio St. 666.

morality, and knowledge, 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." This declaration makes it not only the policy but the duty of government to promote education, and consequently the right of the people to have it. We have already seen that Congress, with a most liberal and enlightened spirit, devotes one thirty-sixth part of the public domain for ever to the diffusion of knowledge. Ohio has thus acquired, for the support of schools, more than seven hundred thousand acres. But until 1825, no efficient steps were taken to establish a regular school system. That year was signalized by the adoption of a free-school system, of which the following are the leading features: Every township is divided by the trustees thereof into districts, which are organized by the election of a clerk, treasurer, and three directors. The costs of erecting a school-house is defrayed by a special tax upon the property in the district, levied by a vote of the tax-payers. The fund for compensating teachers is made up in three ways: First, by the income of the school-lands before mentioned. Pro vision is now made for selling these lands, when those interested will consent, and in vesting the proceeds in a common school fund, the interest of which is annually paid by the State to the respective townships. When this is not done, these lands are leased, and the rents appropriated in the same way. Secondly, by a tax assessed upon the general tax-list; to which the county commissioners may make additions, if they think proper. Thirdly, by a variety of fines specially devoted to this purpose. No person can be employed as a teacher without a certificate from at least two of the examiners appointed in each county by the court of common pleas. While the fund lasts, the schools are open and free to all the white children residing in the district. The system is yet in its infancy, but much may be expected from it hereafter. It has this transcendent merit, that, so far as it extends, it opens the inestimable treasures of knowledge equally to the rich and the poor. So far, then, as the diffusion of knowledge far and wide among the people, can give value and permanency to our free institutions, the free school system, which is the true democracy of education, is calculated to produce that glorious result.

§ 86. Rights of the Poor. We have seen that no property is necessary here as a qualification for office, or for the right of suffrage. We have seen that poll-taxes are prohibited for the benefit of the poor; and that they have the same access to our free schools as the rich. We have seen that in criminal cases those who cannot employ counsel have counsel assigned them by the court; and although in civil cases we have no provisions for suing in forma pauperis, yet the practice of not demanding costs until the end of the suit amounts to the same thing. And if to these provisions we add those abolishing imprisonment for debt, and

relieving against the consequences of bankruptcy and insolvency, we shall probably conclude that the poor have no reason to complain of the law. There is no constitutional provision which directly asserts that those who cannot support themselves shall be maintained at the public expense. Yet their right of maintenance would seem to result, not only from the dictates of humanity, but from all the great principles of social organization. In a state of nature, the poor might appropriate to themselves the first property within their reach. By entering into the social compact, they have been obliged to renounce this right; and among the chances of life, it has fallen to their lot to be destitute. May they not, then, claim a bare support as a right? Life is the first and highest of all rights; but what is life without the means of living? I need not, however, pursue this reasoning; for provision is made for the support of the poor in all well-governed States. I shall briefly indicate the outlines of our system. In every county, the commissioners are authorized to lay a special tax for the erection of a poor-house, and to appoint three directors for its management. A tax may also be levied by them for the support of the poor. No pauper can be admitted into the poor-house without a warrant from the trustees of some township, setting forth the facts of his case. This warrant is submitted to the directors, and if they think such pauper is "legally a county charge," he is admitted. But in order to be a county charge, such pauper must have gained a legal settlement within the county, without the default of the township. The only persons who cannot gain a legal settlement are negroes and mulattoes. Indented apprentices legally brought into the State gain a legal settlement in the township where they first served three years. Married women have the settlement which was last their husband's, if he had one; if not, that which was last theirs before marriage. All other persons gain a settlement by residing one year in any township, without being warned to leave it; or three years after being once warned, without being warned again. This warning is given by a warrant from the overseers of the poor. If neglected, without good reason, the township, and not the county, is chargeable. If there be no county poor-houses, the overseers of the poor provide for the support of those entitled to it, at the expense of the township. And if persons not so entitled are in a suffering condition, temporary provision is made for them, until they can be removed to the place of their legal settlement at the expense of the latter.

§ 87. Right of Self-defence. (a) There are some injuries which, once committed, cannot be adequately redressed. The taking of life is an extreme case of this kind. Against the commission of

(a) See 2 Story, Const. § 1896; 1 Black. Com. 143. A party may use reasonable force to defend the possession of his property, but he cannot use force against the person in regaining or obtaining the possession of property to which he is entitled. 3 Black. Com. 4, 179; Sampson v. Henry, 11 Pick. 387; 1 Bishop, Crim. Law, § 397; 1 Hilliard on Torts, ch. v. § 12, pp. 196, 197.

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such injuries, therefore, every person should not only have the protection of government, when practicable, but should also have a right to defend himself. The right of self-defence would of course exist in a state of nature, and the social compact does not take it away; but the right of avenging an injury already committed is taken away. This is a fundamental distinction. You may prevent an injury from being done, by all proper means; but when done, you may not take redress in your own hands. The social compact provides a tribunal to which you are bound to resort; and abundant provision is made for securing the redress to which you may be entitled. Thus the right of self-defence and the right of redress are two distinct things; but both are equally guaranteed by the constitution. We have already seen that "the enjoying and defending life and liberty" is declared to be an inalienable right. Also, "that the people have a right to bear arms for their defence and security." (a) In England, this right is qualified by the condition, that the arms must be suitable to the condition and degree of the bearer; but here, there is no qualification.

§ 88. Right of Redress. The words of the constitution are, "that all courts shall be open; and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and justice administered without denial or delay." This declaration asserts the broad doctrine, that for every injury to the person or property there shall be an appropriate legal remedy; and pledges the public faith to make the necessary provision. Thus, in return for surrendering the natural right of redressing ourselves, we have acquired the right to call the whole strength of government to our aid in procuring redress. But we must not be misled by the universality of the above language. The redress is to be administered by the "courts" and in "due course of law; and we shall hereafter see that there are many injuries which may occasion the keenest pangs to a sensitive mind, but which, from motives of policy, the law does not undertake to redress; and this declaration cannot of course avail the sufferer, when the law does not provide for his case. But in order to furnish the best security that when the law does provide redress it shall be faithfully administered, the right of trial by jury is explicitly declared. clause relating to criminal cases has been already quoted. Our State constitution contains another declaration," that the right of trial by jury shall be inviolate." This of course includes civil as well as criminal cases. And we have already adverted to that amendment of the federal constitution, which extends the right to "all suits at common law where the value in controversy shall exceed twenty dollars." (b) But here, again, we must not be misled

The

(a) This provision is not infringed by a statute prohibiting the carrying of concealed weapons. State v. Jumel, 13 La. An. 399.

(b) See 2 Story, Const. § 1768. The legislature cannot make the right to a trial by jury in a criminal case dependent on giving a bond with surety for the payment of the penalty and costs. Greene v. Briggs, 1 Curtis, C. C. 311. It has been said that in Ohio the defendant in a criminal case cannot waive a jury trial, except by a plea