Full opinion text
Mr. Justice HAWKIHS delivered the opinion of the court. McDonald sued Mabee on June 5, 1909, in the County Court of Lamar County, upon a promissory note for .$300, besides interest and attorney’s fees, alleged to have been executed by him and one Hollon, and to foreclose a lien under a writ of attachment sued out by plaintiff in said suit and levied upon land in Texas as the property of Mabee. Hollon was alleged to be insolvent and was not made a party defendant. Mabee answered. Among other defenses which were interposed by him he pleaded in bar of plaintiff’s action a former judgment recovered on October 3, 1893, by the plaintiff, McDonald, against him and Hollon in cause Ho. 5468 in the District Court of Lamar County, Texas, for the sum of $431.97; that said judgment was rendered in a suit on the same note upon which this suit is based, and that the debt evidenced by that note was merged in that judgment, and, therefore, this suit should not be maintained. Said answer alleged that said judgment was against said Mabee and said Hollon, personally, for the amount stated, and against them and their co-defendants in said cause-Wo. 5468 for foreclosure of a vendor's lien upon certain land in Lamar County, Texas, securing said note; that said judgment has never been appealed from and is valid and final; and that said note and plaintiff's cause of action thereon have long since become merged in said judgment, and the matter is res adjudicator. In response McDonald filed a supplemental petition, alleging, among other things, that at the time of the institution by him of'said cause Wo. 5468 in said District Court said Mabee was a non-resident of the State of Texas, but that, erroneously supposing him to be a resident of said State, plaintiff so alleged in his original petition in said suit, and in pursuance thereof citation in that cause was issued to Lamar County, Texas, for defendant Mabee, but, upon the sheriff's return thereon being made showing Mabee to be out of said State, plaintiff filed an affidavit stating that Mabee was absent from the State of Texas, and praying that he he cited by publication; that such citation was thereupon issued and published according to law, and thereafter, on October 3, 1893, judgment was duly rendered in said cause against defendants -Mabee and Hollon for $431.97, the amount of said note, and against all of the defendants for foreclosure of the vendor’s lien upon certain land; that the record in said cause Wo. 5468 shows and that the judgment therein upon its face shows that defendant Mabee had been cited in said cause by publication only, and also shows upon its face that it was rendered upon such service and upon that only, and that Hollon was personally served with process; and that by reason of said facts said judgment is not and never was a personal judgment against said Mabee, and never had any force or effect except as a means of reaching, and enforcing said vendor's lien upon, said land. In reply to said supplemental petition defendant Mabee filed a supplemental answer, in which he excepted to plaintiff’s allegation that Mabee was a non-resident of Texas at the time of the institution of said cause Wo. 5468, as being an attack upon the judgment therein by evidence outside of the record, and alleged that defendant, Mabee, was a resident of the State of Texas at the institution of said cause Wo. 5468, and when said affidavit for citation by publication was made, and when said citation was issued and published, and when judgment in said cause was rendered. This County Court case was tried before the court without a jury, and resulted in a judgment in favor of defendant, Mabee. That court filed its findings of fact and conclusions of, law to the effect that said District Court judgment, in cause Wo. 5468, was a valid judgment, in personam, against Mabee. That trial court found, as facts: That the noté sued on in this cause was the identical note which was sued on by the same plaintiff, Me-Donald, in cause No. 5468, in the District Court of Lamar County, Texas; that in said cause No. 5468, Mabee was duly cited by publication issued on application and affidavit stating that he was absent from the State of Texas; that he was given no other notice of that suit, and did not enter his appearance therein; and that, -as was disclosed upon its face, the judgment against Mabee in that cause was based solely upon said citation by publication. The trial court further found, as facts, that on March 6, 1891, the date upon which Mabee joined in the execution of said note, he resided in Lamar County, Texas, and so resided up to April, 1893, when he left that county to establish a home at some other place; that his family continued to reside in Lamar County until the spring of 1894, when they left, and have since had their home in the State of Missouri; that in April, 1893, Mabee left Lamar County and the State of Texas, and remained away until November, 1892, when he returned to Lamar County, and remained there during said month of November, when he again left there and went to St. Louis, Missouri, where he remained from January 1, 1893, to January 1, 1894, though his family resided in said Lamar County, whence they removed to St. Louis, Missouri, in=the spring of 1894; that from January 1, 1893, to January 1, 1894, Mabee was absent from the State of Texas, but that his family resided in Paris, Lamar County, Texas, during that time, and he claimed said Paris as his residence; and that since the spring of 1894 he and his family have resided in St. Louis, Missouri. The trial court further found, as facts, that said cause No. 5468 was filed November 30, 1892; that personal citation therein to Mabee and Hollon was issued December 29, 1892, directed to the sheriff dr any constable of Lamar County, Texas, returnable to the April, 1893, term, and was returned by the sheriff on December 30, 1892, duly served as to Hollon but not executed as to Mabee, and with the endprsement as to him: “Learned to be out of the State of Texas”; that McDonald’s affidavit for citation for publication for Mabee was made and filed and such citation to Mabee by publication duly issued on February 20, 1893, and was duly published; and that the judgment of October 3, 1893, in that cause was against said Mabee personally, as well as for foreclosure of the vendor’s lien and sale of said land, and awarded execution, generally, against Mabee and Hollon, in the event the land which was ordered sold should bring less than the amount of the judgment. The findings of fact by the Court of Civil Appeals are to the same effect. All material facts as they were so found by the trial court and by the Court of Civil Appeals are accepted and will be treated by this court as the facts of this case. Hpon appeal to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas, at Texarkana, that court reversed the judgment of the County Court, and rendered judgment in favor of appellant, McDonald, the decision being by a divided court, the majority opinion being by Associate Justice Levy, and the dissenting opinion being by Associate Justice Hodges. McDonald v. Mabee, 135 S. W., 1089. McDonald's plea in the County Court, setting up invalidity of said District Court judgment for lack of sufficient service upon Mabee therein, constitutes an attack, not upon a judgment of a sister State, but upon a domestic judgment. Moreover, it is not a direct, but a collateral attack, this action having arisen and said plea having been interposed in a court different from that in which the judgment which is therein attacked was rendered. As was well said by Associate Justice Hodges in said dissenting opinion: “This being an action instituted in the County Court, any issue questioning the validity of a judgment rendered in the District Court necessarily presents a collateral, and not a direct, impeachment. In a collateral attack the validity of a domestic judgment must be determined by the record itself, and not by evidence aliunde. Martin v. Burns, 80 Texas, 679, 16 S. W., 1072; Murchison v. White, 54 Texas, 82; Treadaway v. Eastburn, 57 Texas, 213; Holt v. Love, 131 S. W., 857; Hardy v. Beatty, 84 Texas, 562, 19 S. W., 778, 31 Am. St., 80; Horst v. Lightfoot, 103 Texas, 643, 132 S. W., 761. Hence it follows that the findings of the trial court with reference to Mabee’s residence at the time of the original suit and the publication of citation, are wholly immaterial and add nothing by way of supporting the judgment from which this appeal is prosecuted.” However, in order that all the facts may be clearly understood, we have thought it best to set them out at length. Again, as was pointed out in said dissenting opinion: “The situation presented is somewhat peculiar. The attack upon the validity of that judgment (referring to the judgment in cause Ho. 5468) is made by the plaintiff, the one who presumably would insist upon its validity, while its validity is asserted by the defendant, the party who would ordinarily be expected to make the assault. That peculiarity, however, will not be considered as affecting the question before the court.” Plaintiff in error, Mabee, brings this case before us for review upon six assignments of error. The sixth assignment complains of the alleged action of the Court of Civil Appeals in considering the findings of fact by the trial court concerning the actual place of residence of Mabee, apart from what is shown upon that point by the record in said cause Ho. 5468. It is true that the opinion of the majority of that court sets out the findings of fact in question, but we are unable to find that they permitted those facts to control or even influence their decision in the case. On the contrary, as we understand their opinion, they hold, squarely, that upon the facts disclosed by the record and shown upon the face of the judgment in said cause Ho. 5468 that judgment was not valid as a personal judgment- against Mabee. In said opinion they say: “The facts positively appearing, as they do, upon the record, any presumption of fact that would be required to be indulged in a collateral attack upon a judgment here ceases, and the question becomes one of law.” The entire record of the case, including an affidavit and application for citation by publication, may be considered in aid and support of a' domestic judgment. Horst v. Lightfoot, 103 Texas, 643, 132 S. W., 761; Hardy v. Beatty, 84 Texas, 562, 31 Am. St., 50, 19 S. W., 778; Iams v. Root, 22 Texas Civ. App., 413, 55 S. W., 411. Nor have we been able to discover that there is any conflict whatever between the material facts concerning the citizenship, or place of residence, of Mabee, or his absence from the State of Texas, or service upon him, as shown by the record and judgment in said cause No. 5468, and the facts concerning all or any of those features as found by the County Court and by the Court of Civil Appeals in this case. It is evident, therefore, that even though the majority of the Court of Civil Appeals had considered and relied upon said findings of extraneous facts by the trial ■ court their own decision, in all reason, would have been precisely what it was when predicated upon the facts disclosed by the record, including the judgment., in said cause No. 5468. We find no merit in said sixth assignment of error, and it is overruled. The other five assignments of error complain solely of the action of the Court of Civil Appeals in upholding the validity of the judgment of the District Court in said cause No. 5468 as a personal judgment against Mabee, so they will be considered together. That was the judgment of a duly established court of this State, of general and competent jurisdiction, rendered against an absent citizen of the State of Texas upon citation by publication only, yet in strict compliance with the laws of this State, which provides for such proceedings in personal actions for debt as well as in actions affecting title to or liens upon land. The record in that cause, including the judgment itself, shows such compliance. Said judgment was in all respects unquestionably regular, and was valid, as a proceeding in rem, in so far as it related to or concerned and accomplished the subjection of the land which it described to the vendor’s lien thereon securing the purchase money note executed by Mabee which was sued upon in that cause and in the cause at bar. Pennoyer v. Neff, 95 U. S., 714, 24 L. Ed., 565; York v. State of Texas, 73 Texas, 651, 11 S. W., 869. Indeed, this much has been conceded throughout this entire case. But defendant in error, McDonald, strenuously insists that because, as to Mabee, it was based upon citation by publication only, and he made no personal appearance in the cause in which it was rendered, said judgment was not valid as a personal judgment against Mabee, and, consequently, said note did not merge into said judgment, as contended by Mabee, and said judgment is not a bar to McDonald’s action upon said note in the County Court case which is before us. McDonald contends that when said judgment is considered as a purely personal judgment against Mabee the citation by publication upon which, alone, it rests, did not afford to Mabee “due process of law,” within the terms of the Fourteenth Amendment to the Constitution of the United States. Mabee insists that it did. This, then, is the only real issue in the case at bar. If said citation by publication, under the circumstances, was not in “due course of the law of the land,” and did not constitute “due process of .law,” as an adequate basis for such personal judgment against Mabee, said judgment was indeed invalid as a personal judgment against him, said note did not merge therein, the judgment of the County Court in this cause was erroneous, and the decision of the Court of Civil Appeals therein in favor of McDonald should be upheld. Conversely, if said citation by publication ivas in due course of the law of the land, and afforded to Mabee due process of law in regard to the personal action against him; in that cause, for debt, said judgment was valid as a personal judgment against him, the note merged therein, the judgment of the County Court in this cause and the conclusion announced in said dissenting opinion of Associate Justice Hodges arc sound, and said decision of the Court of Civil Appeals must be reversed and the judgment of the County Court in favor of Mabee must be affirmed. The Fourteenth Amendment to the Constitution of the United States declares: “Ho State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Hor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Article 1, section 19, of the Constitution of Texas is as follows: “Ho citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” The Revised Statutes of Texas, adopted in 1911, title 37, contain the following provisions relative to citation by publication from the District and County Courts of this State, and review of judgments based thereon, which statutory provisions, substantially, have all been in force since prior to the filing of said District Court cause Ho. 5468: “Art. 1874 (1235) (1235). Citation by publication.—Where any party to the suit, his agent or attorney, shall make oath at the time of instituting the suit, or at any time during its progress, that the party defendant is a non-resident of the State, or that he is absent from the State, or that he is a transient person, or that his residence is unknown to the affiant, the clerk shall issue a citation for the defendant, addressed to the sheriff or any constable of the county in which the suit is pending. Such citation shall contain a brief statement of the cause of action, and shall command the officer to summon the defendant by making publication of the citation in some newspaper published in his county, if there be any newspaper published therein, but if not, then in any newspaper published in the judicial district where the suit is pending; but if there be no newspaper published in such judicial district, then it shall be published in the nearest district to the district where the suit is pending. Such citation shall be published once in each week for four consecutive weeks previous to the return day thereof. (Acts March 16, 1848, p. 106, sec. 13; March 15, 1875, p. 170, sec. 1. Acts 1879, ch. 96, p. 103. P. D., 25.)” Article 1876 (1337) (1237) provides, in substance, that such citations shall contain the requisites prescribed by the statute for ordinary citations. “Article 1941 (1346) (1212, 1345). Procedure in case of service by publication where no answer, etc.—Where service of process has been made by publication, and no answer has been filed nor appearance entered within the time prescribed by law, the court shall appoint an attorney to defend the suit in behalf of the defendant, and judgment shall be ren-dered as in other eases; but, in every such case, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as part of the record thereof. The court shall allow such attorney a reasonable compensation for his services, to be taxed as part of the costs of the suit (Acts 1846, p. 363, sec. 128. Acts 1866, p. 125, sec. 1, P. D. 1488, 26.)” That all the proceedings in said cause Ho. 5468 were in full compliance with these statutes has not been questioned but is admitted. “Article 2026 (1375) (1373). Bill of review in suits by publication. —In cases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by an attorney of his own selection, a new trial may be granted by tire court upon the .application of the defendant for good cause shown, supported bv affidavit, filed within two years after the rendition of such judgment. (Id. sec. 139, P. D. 1489.)” All of the foregoing statutory provisions should be considered together, upon the issue before us. Flint River Steamboat Co. v. Foster, 5 Ga., 194, 48 Am. Dec., 248; Corliss v. Corliss, 8 Vt., 373. See, also, dissenting opinion of Mr. Justice Hunt in Pennoyer v. Neff, 95 U. S., 736, and references therein to similar statutes in various States. In construing the Thirteenth and Fourteenth Amendments, for the first time, in the Slaughter House Cases, 16 Wall., 67, the Supreme Court of the United States said: “We do not conceal from ourselves the great responsibility which this duty devolves upon us. Ho questions so far reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members.” Yerv often, since then, that court has been called upon to exercise its jurisdiction under that “due process” clause. Thirty-seven years ago, with reference to it, that court was moved to declare: “In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.” Davidson v. New Orleans, 96 U. S., 104, 24 L. Ed., 616. That clause in the Fifth and Fourteenth Amendments has aptly been termed “those last resorts of desperate cases.” Commonwealth v. Phila., etc., Coal Co., 145, Pa. St., 286, 23 Atl., 809. Withal, so far as has been pointed out to us, or we have been able to find, the precise question which the case at bar presents,—the question as to the authority of a court of a State to bind one of its absent citizens by a personal judgment based upon constructive service by publication only—has never been decided by that tribunal. Ho useful purpose would be subserved, perhaps, by entering here upon an exhaustive discussion of the definition, purpose, legal meaning and application of “due process of law,” as that expression is employed in the Fourteenth Amendment. However, the question immediately before us is one of great importance; the decisions of courts of last resort in several States conflict thereon, and in several of them, as in the case at bar in the Court of Civil Appeals, vigorous and able dissenting opinions have been filed; the decisions of even the Supreme Court of the United States upon questions relating to the sufficiency and validity of constructive or substituted service present great divergence of views and also numerous dissenting opinions; the opinions of this court bearing upon the point here involved have dealt with it but briefly; and by reason of these facts, collectively, we feel impelled to make at least a general survey of that field. Magna Charta, which was wrung from King John by the barons, the clergy and the commoners of England, in 1215, was based upon several earlier charters from sovereigns of England, ranging back to one granted by William of Hormandy, and was designed to restore to the people of England various rights and privileges of life and property which had been ruthlessly usurped by the reigning sovereign. That unchaptered original Great Charter, which, several times thereafter, was reissued in amended form, contained this guaranty: “Ho freeman shall be taken or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers, or by the law of the land.” Stubbs, 1 Const. Hist. Eng., 577; Chap. 29, Magna Charta of 9 Hen. III. “Law of the land,” in that historic and precious document probably related back to established rights and usages which that people had previously enjoyed, in contradistinction to Roman or civil law (James v. Reynolds’ Adm’rs, 2 Texas, 250; Kalloch v. Superior Ct., 56 Calif., 229, Coke, Inst. 2, 46), and also emphasized the distinction between trial by wager of battle or by ordeal and trial by one’s peers. Pomeroy’s Const. Law, sec. 245. But in both England and America that clause has been given a different and much broader meaning, as we shall presently see. McGehee, in his work on “Due Process of Law,” traces, through the mutations of Magna Charta and various English statutes of the fourteenth century and the constitutional contests of the seventeenth century, the evolution of “law of the land” into “process of law” and “due process of law,” and in so doing says of Magna Charta: “Such a document, looked to by each succeeding generation as a living guaranty of rights, is naturally interpreted in each age according to the needs of the time. The broad construction which was given to the thirty-ninth chapter by the statesmen and lawyers of the seventeenth century during the constitutional struggles with the Stuarts, became fixed in the commentaries of Coke and subsequent writers, and in the period of our Revolutionary War was woven into the very texture of American constitutional law.” The reference is to the said portion of another reissue of Magna Charta. In addressing the Georgia Bar Association in 1903, Chief Justice Alton B". Parker, of the New York Court of Appeals, said: “In a work upon the Fourteenth Amendment of the Constitution of the United States, published but a. few years ago, it is stated that the words ‘due process of law’ were probabty first used in the Petition of Right of Charles I., A. D. 1628, whereas the fact is that in chapter 3 of the Statutes of 28 Edward III., passed 274 years before the Petition, and entitled, ‘None shall be condemned without Trial,’ we find that no man ‘shall be put out of Land or Tenement, nor taken, nor imprisoned,' nor disinherited, nor put to Death, without being brought to answer by due Process of Law/ . . . While the pharse came to us from England it is far more potential under our system of governmtnt than it is or ever was in England. There it restrained the King, not parliament. Here it operates upon every department of Federal and State government—executive, legislative and judicial.” (American Law Review, vol. 37, No. 5,. p. 41.) The phrase “due process of law” had no place in the Constitution of the United States as adopted in 1787. It first found its way into the Fifth Amendment, which was adopted in 1798. More than seventy years later, in 1868, it was incorporated in the Fourteenth Amendment. The same expression, or some words of similar import, such as “due course of the law of the land,” have been embodied in the Constitution of almost every American State. The Fourteenth Amendment radically restricted the powers of the States and correspondingly extended the jurisdiction of the Supreme Court of the United States. It clothed that high tribunal "with ultimate authority to determine and declare" whether or not any particular statute of any State affecting life, liberty or property, does or does not constitute a denial of “due process of law” within the scope and meaning of that amendment. Decisions of any and all other courts upon that question, therefore, are valuable merely as side-lights. “Due process of law,” as used in the Fourteenth Amendment, and “due course of the law of the land,” as used in article 1, section 19 of the Constitution of Texas, and in the constitutions of many of her sister States, according to the great weight of authority, are, in nearly if not all respects, practically synonymous. Murry’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 15 L. Ed., 372; Walker v. Sauvinet, 92 U. S., 90, 23 L. Ed., 378; Hurtado v. California, 110 U. S., 523, 28 L. Ed., 232, and authorities cited; McGehee’s Due Process of Law, pp. 10-35; 8 Cyc., 1081, closing par. of note 59, and 1083, note 63; Words and Phrases, vol. 3, p. 2228. The general purpose of t-he expression “due process of law” in the Fourteenth Amendment was to prevent encroachment by the" States against life, liberty and property, just as the purpose of that identical phrase in the Fifth Amendment was to prevent such encroachments by the National government. Hibben v. Smith, 191 U. S., 325, 48 L. Ed., 195. “Due process of law” has been variously defined and treated, as follows : “An exertion of the power of- government as the settled maxims of the law permit and sanction, and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs.” Cooley’s Const. Dim., 356; Beyman v. Black, 47 Texas, 571; Gulf C. & S. E. Ry. Co. v. Ellis, 18 S. W., 723. “By the daw of the land’ is clearly intended the general law, which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.” Webster, in argument in Dartmouth College v. Woodward, 4 Wheat., 518, 4 L. Ed., 629; Grigsby v. Peak, 57 Texas, 142; U. C. Ins. Co., v. Chowning, 86 Texas, 654, 24 L. R. A., 524, 26 S. W., 982; Armstrong v. Traylor, 87 Texas, 601, 30 S. W., 440; Wichita Elec. Co. v. Hinckley, 131 S. W., 1192; Words and Phrases, vol. 3, p. 2232. “Law in its regular course of administration through courts of justice.” Chancellor Kent, 2 Com., 13, citing Story on Const., vol. 3, 264, 661; 8 Cyc., 1081, note 59; Words and Phrases, vol. 3, p. 2236. : “A course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.” Pennoyer v. Neff, 95 U. S., 733, 24 L. Ed., 565. .This definition has been very generally approved. Words and Phrases, vol. 3, p. 2234; Gulf, C. & S. F. Ry. Co. v. Ellis, supra. “In all cases that kind of procedure is due process, of law which is suitable and proper to the nature of the case and sanctioned by the establishecl customs and usages of the courts.” Ex parte Wall, 107 U. S., 289, 27 L. Ed., 572. “Any process known to the law, criminal or civil, at the time when the provision was adopted. . . . The inhibitions of the Constitution which prohibit Congress from any material change of processes known to the jurisprudence of England and the United States at the time of their adoption must be understood to be confined to those that would affect the people’s rights to life, liberty and property as then existing, and not to cripple Congress in any proposed changes not affecting those rights.” Waples’ Proceedings in Rem., pp. 26, 28. “It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend.” Note to Flint River Steamboat Co. v. Foster (Ga.), 48 Am. Dec., 272; Matter of Empire City Bank, 18 N. Y., 200; Rockwell v. Nearing, 35 N. Y., 202. “Due process of law does not necessarily mean that the person affected thereby should have personal notice of the proceeding. Either actual or constructive notice is sufficient, and answers every purpose of the law, if it be reasonably probable that he will be apprised of the proceeding.” State v. Dist. Ct. St. L. Co., 90 Minn., 457, 97 N. W., 132, citing Cooley’s Const. Lim., 6th ed., 497, note 1; 10 Am. & Eng. Ency. L., 2nd ed., 299; Mason v. Messenger, 17 Iowa, 261; Happy v. Mosher, 48 N. Y., 313. “One which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in-the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and whenever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights.” Hagar v. Reclamation District, 111 H. S., 708, 28 L. Ed., 569, citing Hurtado v. California, 110 U. S., 516, 28 L. Ed., 232. Various courts have held that “due process of law” means such general legal forms and course of procedure as were either known to the common law, or as were generally recognized in this country at the time of the adoption of the Constitution. But many other courts have held that rule too restrictive. Brown v. Levee Com’rs, 50 Miss., 468. • In Murray’s Lessee’s Case, 18 How., 272, 15 L. Ed., 372, the Supreme Court of the Hnited States prescribed this test: “We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before emigration of our ancestors, and which are shown not to have been unauited to their civil and political condition by having been acted upon by. them after the settlement of this country.” In Hurtado’s Case, 110 U. S., 529, after quoting as above from the case last mentioned, the court said: “This, it is argued, furnishes an indispensable test of what constitutes ‘due process of law’; that any proceeding otherwise authorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, can not be regarded as due process of law. But this inference is unwarranted. The real sjdlabus of the passage quoted is, that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due procesé of law. The- answer was: however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this in substance, has been immemorially the actual law of the land, and therefore, is due process of law., But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of .progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.” And in the same opinion, in referring to the “broad and general maxims of liberty and justice,” the court said: “Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty and property.” That opinion also speaks of “due process of law,” as used in the Fourteenth Amendment, as “that law of the land in each State which derives its authority from the inherent and reserved power of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” And after quoting approvingly from Brown v. Levee Commissioners, 50 Miss, 468, wherein it was said with reference to "due process of law,” "It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized,” and from Loan Association v. Topeka, 20 Wall., 655, 38 L. Ed., 455, wherein it was said: “It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even, the most democratic depository of power, is, after all but a despotism,” that court of last resort in such cases thus prescribed the test: “It follows that any legal proceeding enforced by public authority, whether sanctioned by age and •custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” In another case that court said: “This court has said that a trial in a court of justice, according to the modes of proceeding applicable to such a case, secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice—the court having jurisdiction of the subject matter and of the parties, and the defendant having full opportunity to be heard—met the requirement of due process of law. United States, Cruikshank, 92 U. S., 542, 554, 23 L. Ed. 558; Leeper v. Texas, 139 U. S., 462, 468, 35 L. Ed., 225.” Chi. B., etc., v. Chicago,. 166 U. S., 234, 41 L. Ed., 979. “Due process of law, as the meaning of the words have been developed in American decisions, implies the administration of equal laws according to. established rales, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing.” McGehee’s Due Process of Law, p. 1. “It seems impossible to give a definition which is at once perspicuous ' and satisfactory.” Hodge v. Muscatine County, 121 Iowa, 482, 67 L. R. A., 624, 104 Am. St., 304, 96 N. W., 968. “It must be confessed, however, that the constitutional meaning or value of the phrase “due process of law” remains today without that satisfactory precision of definition which judicial decisions have given to' nearly all the other guarantees of personal rights found in the Constitutions of the several States and of the United States.” ... “If therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any of the fundamental laws. “But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory,, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the-gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.” Davidson v. New Orleans, 96 U. S., 101, 24 L. Ed., 616. In many early cases, in various States, it was held that a personal judgment against a non-resident, based solely upon constructive .or substituted service, conformably to a State statute, was valid for all purposes within the State in which judgment thereon was rendered, even though such judgment was not valid, or entitled to recognition, in a sister State. Wheeler, J., said, in McMullen v. Guest, 6 Texas, 279: “The plaintiff is a resident of the State, and is entitled to the process of the court to protect and enforce his legal rights against a non-resident whose person or property he may find subject to that process. He may sue the1 non-resident as a Transient person,’ under the provision of the first section of the Act of 1846 (Hart. Dig., p. 241), if found temporarily sojourning here; and if not to be so found, the object of the statute under which this suit was brought doubtless was to enable him to sue and obtain service by publication. The non-residence of the defendant constitutes no objection to the jurisdiction, however, the judgment might be regarded if sought to be enforced in a foreign State. (Story on Conf. of Laws, sec, 539, 540, 548, 549, and notes; 9 Mass. R, 466.)” To the same effect was Campbell v. Wilson, 6 Texas, 389, wherein it was declared that the doctrine of international law under which service upon a non-resident by means of attachment upon property with the State should be treated to all intents and purposes as a proceeding in rem and will not support a personal judgment to the extent of reaching beyond the property attached, must yield, at least within such State, to the superior force of a conflicting statute; but in that instance the defendant had subjected his person to the jurisdiction of the court by appearing and answering to the merits. And in Thouvenin v. Rodrigues, 24 Texas, 477-8, it was said: “Whatever effect may be given to the judgments of one State, when sought to be enforced in the courts of another, however they may be regarded in the courts of the latter State, when rendered without personal service on the defendant, it is perfectly well settled, that if rendered upon constructive service, authorized by the laws of the State where rendered, they will be held to be as valid and binding by its courts, to the extent of their operation by the local law, as if rendered upon personal service on the defendant. It is competent for each State to prescribe the mode of bringing parties before its courts. Although its regulations in this respect can have no extra-territorial operation, they are, nevertheless, binding on its own citizens. For, in respect to its own resident citizens, it is undoubtedly competent for the legislature to prescribe such modes of judicial proceeding as it may deem proper, to direct the manner of serving process; the notice which shall be given to defendants ; and to declare the effect of a judgment rendered in pursuance of such notice.” Freeman on Judgments, see. 567. But the view that the same judgment might be valid in one and invalid in another State was untenable on principle,, and sems to have been abandoned, generally, in view of what was held and said in Pennoyer v. Neff, 95 U. S., 714, 24 L. Ed., 565, decided in October, 1877. Barkman v. Hopkins, 11 Ark., 157. ■That the judgments of each State shall have the same force and effect in other States was provided, in substance by the Constitution of the Hnited States, article IV, sec. 1, and by the Act of Congress of May 26, 1790. But those provisions were not designed to prevent inquiry into either the jurisdiction of the court or the right of the State authority over the person or the subject matter. D’Arcy v. Ketchum, 11 How., 165, 13 L. Ed., 648; Barkman v. Hopkins, 11 Ark., 157, and eases cited; Story on Const., 175, 178, 183. The effect of the D’Arcy case was that if the court of the sister State found that the non-resident defendant had been personally served in the State in which judgment was rendered, with statutory process, it was required to uphold the personal judgment; but, if it found that the defendant had not been so personally served, and had not submitted himself to the jurisdiction, it was under no obligation to recognize such judgment as'valid. See also Thompson v. Whitman, 18 Wall., 460, 21 L. Ed., 897: Knowles v. Gaslight and Coke Co., 19 Wall., 61, 22 L. Ed., 70; Lafayette Ins. Co. v. French, 18 How., 404, 15 L. Ed., 451. Long prior to Pennoyer v. Keif, and prior to the adoption of the Fourteenth Amendment, various State courts and the Supreme Court of the United States itself had held that no purely personal judgment against a non-resident could be predicated upon any character of constructive service, without personal appearance. D’Arcy v. Ketchum, supra; Barkman v. Hopkins, supra, and authorities cited; Dearing v. Bank of Charlestown, 5 Ga., 497, 48 Am. Dec., 300; Beard v. Beard, 21 Ind., 327. All those decisions but followed and applied the tenets and principles of natural justice and the general rule of the common law, and, indeed, of international law. Wheaton, in his work on International Law, says, at p. 288: “The practice' which prevails, in some countries, of proceeding against absent parties” (foreigners), “by means of some formal public notice, like that of the viis et modis of the Roman civil law, without actual personal notice of the suit, can not be reconciled with the principles of international justice.” Yet he sajrg the judicial power of every State extends to “all civil proceedings in rem, relating to real or personal property within the territory,” Id. 280, and to “all controversies respecting personal rights and contracts, or injuries to the person or property, when the party resides within the territory, wherever the cause of action may have originated.” Id. 285. Burge, in his Commentaries on Colonial and .Foreign Law, p. 1044, tells us: “The authority of every judicial tribunal and the obligation to obey it are circumscribed by the limits of the territojy in which it is established.” Story, in his Conflict of Laws, sec. 539, declares: “Ho sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals.” And in Picquet v. Swan, 5 Mason, 40, he said: “The courts of a State, however general may be their jurisdiction, are necessarily confined to the territorial limits of the State. Their process can not be executed beyond ■those limits; and any attempt to act upon persons or things beyond them would be deemed a usurpation of foreign sovereignty, not justified or acknowledged by the law of nations. Even the Court of King’s Bench, in England, though a court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland, or the colonies, to compel an appearance, or justify a judgment against persons residing therein at the time of the commencement of the suit.” That doctrine is tersely stated thus in Dearing v. Bank, 5 Ga., 497, 48 Am. Dec., 313: “The rule is firmly fixed that no sovereignty can extend its process berrond its territorial limits, to subject either persons or property to its judicial decisions. This is the rule by the law of nations—by the common law, and is recognized by the American courts. Dig., lib. 2, tit. 1, 1, 20; 1 Boullenois’ Pr. Gen. 1, 2, pp. 2, 3; Vattel, b. 2, c. 8, sec. 84; Picquet v. Swan, 5 Mason, 35, 42; Story’s Conf. L., 450, sec. 539.” In discussing the above mentioned. Act of Congress, relating to judgments, the Supreme Court of the United States said, in 1850: “International law, as it existed among the States in 1790 was, that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process or voluntarily made defence, because neither the legislative jurisdiction, nor that of courts of justice, had binding force.” D’Arcy v. Ketchum, supra. As to the common law: In violation of the principles of the “law of the land,” as embodied in Magna Charta, parliament, at various times, passed confiscatory acts, such as bills of attainder and bills of pains and penalties, against distinguished personages, resulting in much ill-feeling and bitterness among the people. Among them may be mentioned the act exiling and disinheriting the Despencers, which a later parliament reversed upon the ground that “said award was made without calling them to answer,, and without the assent of the prelates, which are peers in the realm in parliament, and against, the Great Charter of the franchises of England”; the Act against the Earl of Arundel, and the Act against Eoger, Earl of Mortimer, each of which was likewise reversed, upon similar grounds. In the fourteenth century attainders of treason were common, as “a device of the dominant faction to secure forfeiture of estates.” The Duke of Gloucester, Cromwell, and others were attainted, after death, as were Lord Edward Fitzgerald and others by the Irish Parliament in 1798. Other such acts were those against the Countess of Salisbury, Lord Admiral Seymour, and Sir John Fenwick, respectively. Among notable bills of pains and penalties were those against the Bishop of Atterbury, and Queen Caroline, respectively. McGehee, Due Process of Law, Ch. 2. While it is true that in article 1, sections 9 and 10 of the Constitution of the United States specific provision is made against the passage of any bill of attainder whatever, by the Congress or by any State legislature, we may well assume that it was at least in contemplation of those signal acts in violation of the ancient “law of the land” in England, and probably, -partly, as an additional safeguard againfet such legislative experiences in this country, without notice to the victim, that the “due process” clauses of said Fifth and Fourteenth Amendments were adopted. In early English history the blood-feud afforded the only means of redress for injuries. It was largely supplanted by the custom of voluntarily referring the controversy to an arbitrator for award of damages. Jenks, Law and Politics in Middle Ages, 100, et seq.; Maine, Ancient Law, 3rd Am. Ed., 364; Holmes, Com. Law, 3. The ancient principle of the common law, which forbade judgment against any one until he had personally appeared (2 Poll. & M. Hist., 592, Blackstone’s Comm., Bk. 4, 283), is, perhaps, but the impress of that voluntary practice. After courts were established by law, the theory which prevailed was that consent of the defendant wag indispensable to the jurisdiction; and appearance in private actions evidenced consent. McGehee, Due Process of Law, Chap. 3. The effort of the government to compel, by process, such consent by appearance resulted in providing for the circumlocutory proceedings of outlawry, which involved first, a judicial sentence of qualified forfeiture of the defendant’s lands and goods, and a suspension of his civil rights as a citizen, and, second, a civil action to the Court of .Exchequer, or by petition, when the claim exceeded 50 pounds, resulting in satisfaction of such claim by sale of property so seized. Allowed, originally, in cases of felony only, that proceeding was extended to actions for trespass vi et amis, and, in the times of the Henrys, III and VII, and of the Edwards, I and III, to various civil actions. Blackstone, book 3, ch. 39. In proceedings of outlawry the practice with regard to an absconding debtor was to issue, if necessary, successive writs, original, capias, alias, and plwries, and if all were returned non est inventus, to issue the exigent, or exigi facias, which required the sheriff “to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; ancl, if he does, -then to take him as in a capias”: but if he did not appear, and was returned quinto exactus, he was then outlawed by the coroners of the county. By statutes 6 Hen. VIII, c. 4, and 31 Eliz., c. 3, there was issued, with the exigent, a. writ of proclamation under which- the sheriff of the county of the defendant’s residence was required “to make three proclamations thereof in places the most"notorious and most likely to come to his knowledge” a month before the outlawry: 3 Blackstone, ch. 19. In Tynte v. The Queen in 1845, Lord Denman being Chief Justice, a judgment of outlawry was reversed, after the lapse of one hundred and sixteen years, because the record failed to show that proclamation had been made, or a writ of' proclamation issued, as required by statute. Eng. C. L. Bep. A. & E. H. S., vol. 7, p. 216. Statutes authorizing service by publication have frequently been held to be in derogation of common law, resulting in the necessity of following them strictly, in order to acquire jurisdiction thereunder. Galpin v. Page, 18 Wall., 50, 21 L. Ed., 959, and cases cited. Alderson, in Judicial Writs and Process, p. 313, tells us: “All constructive or substituted service of process must, to be effectual, be authorized by statute. It is a manner of serving process unknown to- the common law.” His first proposition has generally been acted upon by the courts of this country as sound, although in a proceeding in rem, in Grasmeyer v. Beeson, 13 Texas, 5.24, it was held that if the Act of 1840 operated repeal of a statute which provided for substituted service “it was competent for the courts, as matter of practice, to adopt a mode of making parties where the law prescribed none,” citing Kegans vs. Alcorn, 9 Texas, 25. But in stating his second proposition Mr. Alderson probably goes too far—and he certainly does unless he refers to only the ancient and consuetudinary law of England, unaffected by known Acts of Parliament. Grigsby v. Reib, 105 Texas, 597, 153 S. W., 1124; Browning v. Browning, 3 N. M. (Johns.), 371, 9 Pac., 682. In England, by Avay of exceptions to the general rule which required personal appearance of the defendant in both criminal and civil actions, various statutes, from time to time authorized, and the English courts customarily upheld the validity of, various forms of substituted or constructive service. The Supreme Court of Minnesota said: . “Although service by publication is of modern origin, there has always been some mode by which jurisdiction has been obtained at common law by something amounting to or equivalent to constructive service, where the defendant could not be found and served personally.” Bardwell v. Collins. 44 Minn., 97, 20, Am. St., 547, 9 L. R. A., 152, 46 N. W., 315. Ordinarily, “at common law, the process, or means of compelling the defendant to appear in court was: 1. Summons. 2. The writ of attachment, or pone, which is sometimes the first or original process. 3. The writ of distringas, or distress- infinite. 4. The writs of capias ad respondentum and testatum capias-; or, instead of these, in the King’s Bench, the bill of Middlesex, and writ of latitat; and in the Exchequer, the Avrit of quo minus. 5. The alias and pluries writs. 6. The exigent or writ of exiqi facias, proclamations and outlawry.” Mason v. Messenger & May, 17 Ia., 266, citing 3 Blackstone’s Comm., 279, et seq. With regard to the summons, Blaekstone says: “It is a warning to appear in court at the return of the original writ, given to the defendant by two of the sheriff’s messengers ... . either in person or left at his house or land,” and that “warning on the land is given, in real actions, by erecting a white stick or wand on the defendant’s grounds (which stick or wand among the northern nations is called the baculus nunciatorious); and by statute 31 Eliz., c. 3, the notice must also be proclaimed on some Sunday before the vdoor of the parish church. The writ of distringas, he tells us, “is a subsequent process issuing from the court of common pleas, commanding the sheriff to distrain the defendant from time to time, and continually afterwards by taking his goods and the profits of his lands, which are called issues, and which by the common law he forfeits to the King if he doth not appear.” He adds: “But now the issues may be sold, if the court shall so direct, in order to defray the reasonable cost of the plaintiff. In like manner, by the civil law, if the defendant - absconds, so that the citation is of no effect, ‘mittitur adversaríais in possessionem lonorum ejus.’ And here by the common, as well as the civil law, the process ended in case of injuries without force; the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the King’s writ; and if he had no substance the law held him incapable of making satisfaction, and therefore looked upon all farther process as nugatory.” However, in cases of injuries by force, there was allowed the further process of the capias, and that writ came into later use in various civil actions of account, debt and detinue, and in all actions on the case. The capias called for bringing the body of the defendant into court. The bill of Middlesex corresponded to the capias, and was designed to bring the defendant before the Court' of King’s Bench at Winchester, upon an accusation of trespass, real or supposed, so that, being before the court, he might be prosecuted for any other species of injury. If returned not served there was then issued the latitat, which authorized the sheriff of another county named therein to bring defendant’s body into court. In the exchequer the original writ was the quo minus which alleged that the plaintiff was the King’s farmer or debtor, and that the defendant had injured him, “quo minus swjjiciens existit, by which he is the less able to pay the King his rent or debt;” and thereupon the defendant was arrested, “as upon a capias from the common pleas.” 3 Blackstone, ch. 19. In a case under statute 6 and 7, Viet., c. 76, Lord Chief Justice Cock-burn, in 1864, declared British subjects subject to the criminal laws of England, no matter where the offense was committed. In re Tivnan, 5 B. & S., 679. In Douglas v. Forrest, Executor, 4 Bing., 693, 1 Moore & Payne, 663, decided in 1828, it was held that assumpsit lies in the courts at Westminster on a Scotch decree, obtained against a native born Scotchman who was absent in India, for a debt contracted in Scotland, although the absentee was cited only by “winding a horn” and summoning him at the market cross at Edinburgh and pier and shore of Leith, in compliance with the statute, 54 Geo., 3, c. 137. In so deciding Lord Chief Justice Best said: “Can we say that a practice which the Legislature of the United Kingdom has recognized, and extended to other cases, is contrary to the principles of justice? A natural born subject of any country, quitting that country, but leaving property under the protection of its laws,, even during his absence owes obedience to those laws, particularly when they enforce a moral obligation.” And he added: “We confine our judgment to a case where the party owed allegiance to the country in which the judgments are given against him, from being born in it, and by the laws of which country his property was, at the time these judgments were given, protected; and where debts were contracted in the country in which the judgments were given, whilst the debtor resided in it.” See, also, Buchanan v. Rucker, 9 East, 192. Of a similar statute, the Act of 5 Geo. II, the Supreme Court of Georgia said, in 1848: “It applies alone to the subjects of .Great Britain, and, adopted by us, it applies alone to the' citizens of Georgia.” Dearing v. Bank, 5 Ga., 497, 48 Am. Dec., 300. .It was said by an English court, in 1831: “That a law of a British colony that in a suit instituted against an absent party the process should be served upon the King’s attorney general in the colony, it not being expressly provided that the attorney general "should communicate with the absent defendant, was not so contrary to natural justice as to render void a judgment obtained against a party who had resided within the jurisdiction of the court at the time when the cause of action accrued, but had withdrawn "himself before the proceedings were commenced.” Becquet v. McCarthy, 2 B. & Ad., 951, 22 E. C. L., 220. For the provisions of various Acts of Parliament authorizing judgments upon substituted or constructive service where the defendant was out of the realm, even though he had not absconded to avoid service, see Daniell’s Pleading and Practice of the High Court of Chancery (Perkins ed.). Ch. 8. Upon such fictions and through such persuasive measures were the English courts accustomed to secure the personal appearance of defendants, or, "failing that, to render judgment nevertheless. Following the English precedents, statutes providing for some form of'substituted or constructive service, most often by publication, have been generally enacted in this country. See dissenting opinion in Pennoyer v. Neff, 95 U. S., pp. 738, et seq., 24 L. Ed., 565, and other cases herein cited. Grasmeyer v. Beeson, 13 Texas, 528 (decided in 1855), was an action in trespass to try title and for partition of land, under allegations that the defendant was “absent, in parts unknown.” Citation by publication was made by order of the court, possibly in the absence of a statute authorizing it. A curator was appointed, presumably before the repeal of the Spanish law which authorized it. He was cited, appeared and answered, and pursuant to the laws of the State of Co almila and Texas (Decree 277, art. 98), a guardian ad litem was appointed. In upholding the decree of partition therein Wheeler, J., said: “By the Spanish law in force previous to the adoption of the common law (Partidas, 3, 2, 12; 6 M. B. K. S., 17), if a debtor was in captivity or absent, his creditors might require that a curator be appointed, against whom suits might be instituted. (And see note 2 of the Commentaries of Gregoria Lopez on L. 14. Tit. 14, Partidas 3; Escriche, Diccionario, Verbo Ansente.)” “Keither the common law nor any statute of the Bepublic afforded a remedy in cases like the present as a substitute for that given by the previously existing law. In the common law practice the appearance of the defendant might be enforced by seizing his goods, or he might be proceeded against to outlawry, thus putting him out of the protection of the law, so that he would be in