croaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision, and do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action.1 But some of the states have adopted a constitutional provision, declaring that "private property shall not be taken or damaged for public use without just compensation," and it has been held that the introduction of the additional words into the constitutional provision, has given to property holders a greater security; and that under such a constitutional provision a recovcry may be had in all cases where private property has sustained a substantial damage by the making and using an improvement that is public in its character-that it does not require that the damage shall be caused by a trespass, or an actual physical invasion of the owners real estate; but if the construction and operation of the railroad or other improvement is the cause of the damage, though consequential, the party may recover.2

3

§ 175. Same-Mode of procedure in exercising the power.In the absence of any provision in the organic law prescribing a contrary course, the mode of exercising the right of eminent domain is in the discretion of the legislature. Under the general grant of jurisdiction, the circuit courts of the United States have jurisdiction of a proceeding brought by the United States to acquire, by eminent domain, land for a custom-house.* A proceeding for condemnation in the circuit court of the United States, under the act of congress controlling such proceedings, is in substance and effect an action at law, and the jury trial in such proceedings is the same as the ordinary jury trial in a court of record."

§ 176. Same-Compensation.-The "just compensation' made for private property taken for public use, must, under

1 Northern Transportation Co. v. Chicago, 99 U. S. 635, 641 (25:336); Smith v. Corporation Washington, 20 How. 135

of

(15:858).

2 Chicago v. Taylor, 125 U. S. 161, 170 (31:638).

3 Secombe v. Milwaukee & St. P. Ry. Co., 23 Wall. 108, 119 (23:67). 4 Kohl v. United States, 91 U. S. 367, 379 (23:449).

5 25 U. S. Stat. at L. 357.

Kohl v. United States, 91 U. S. 367, 397 (23:449).

the provision relating thereto, contained in the fifth amendment to the constitution, be a full and exact equivalent for the property taken; and this excludes the taking into account as an element of compensation any supposed benefit that the owner may receive in common with all the community from the public use to which his private property is appropriated.' Where lands are condemned for the use of the United States, the government discharges its entire duty to the owners of the property by the payment of the amount awarded by the commissioners, as compensation, into court, pursuant to its order.8

§ 177. Writ of habeas corpus.-Hallam in his constitutional history says: "It cannot be too frequently repeated, that no power of arbitrary detention has ever been known to our constitution since the charter obtained at Runnymede. The writ of habeas corpus has always been a matter of right. But, as may naturally be imagined, no right of the subject, in his relation to the crown, was preserved with greater difficulty. Not only the privy-council in general arrogated to itself a power of discretionary imprisonment, into which no inferior court was to inquire, but commitments by a single counselor appear to have been frequent. These abuses gave rise to a remarkable complaint of the judges, which, though an authentic recognition of the privilege of personal freedom against such irregular and oppressive acts of individual ministers, must be admitted to leave by far too great latitude to the executive government, and to surrender, at least by implication from rather obscure language, a great part of the liberties which many statutes had confirmed."'" The founders of our government led by the light of the history 10 of the aggressions of the English executive upon the liberties of the citizen, declared in the constitution that: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The power to suspend the privilege of the writ is vested in congress; 12 that body has as

7 Monongahela Navigation Co. v. United States, 148 U. S. 312, 345 (37:463).

8 United States v. Dunnington, 146 U. S. 338, 354 (36:996).

⚫ Hallam's Const. Hist. England, 139, 140.

11

10 Ex parte Milligan, 4 Wall. 2, 142 (18:281).

11 U. S. Const. art. I, sec. 9, cl. 2. 12 Ex parte Bollman and Ex parte Swartout, 4 Cranch, 96 (2:561); Ex parte John Merryman, Taney 246, Fed. Cas. No.

13

serted the power by once actually exercising it. The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it, the court decides whether the party applying is denied the right of proceeding any further with it.14

9,487; 3 Story's Com, on the Constitution, sec. 1336.

13 Ex parte Milligan, 4 Wall. 2,

142 (18:281); 12 U. S. Stat. at L. 755.

14 Ex parte Milligan, 4 Wall. 2, 142 (18:281).