been prohibited from impairing the obligation of contracts, as the States were, may well excite some surprise. It was certainly never intended that Congress under any circumstances should exercise that tyrannical power, and it probably never occurred to any one as possible that it would ever attempt to do so. Should it, however, attempt it, in the case of private contracts, the act may well be held not to be legitimate legislation, and therefore incompetent and void. But in respect to contracts by the government itself, so long as they remain executory, if it shall choose not to perform them, there can be no redress. A government cannot be compelled to pay its debts against its will by any process short of war or of forcible reprisal. And Congress may indirectly impair the obligation of private contracts, through its power to debase the currency and to establish and change the law of tender, as it did to some extent in the act making treasury-notes a lawful tender in payment of pre-existing debts. For such wrongs only the political remedies can be available.

Miscellaneous Cases. Some police regulations have been contested, as amounting to a virtual destruction of property; for example, those prohibiting the sale of spirituous or malt liquors as a beverage, and those establishing limits in cities within which buildings of wood shall not be constructed or repaired. But there is no doubt that the legislature in its discretion may establish such regulations.2

SECTION II. - PROTECTION TO PROPERTY.

The Constitution. The fifth amendment to the Constitution provides that no person shall be deprived of property

1 See opinion in Gunn v. Barry, 15 Wall. 610.

2 License Cases, 5 How. 504; Commonwealth v. Intoxicating Liquors, 115 Mass. 153; Insurance Co, v. Brown, 11 Mich. 265. See Transportation Co. v. Chicago, 99 U. S. Rep. 635.

without due process of law. upon the federal powers only.

This provision is a restraint

The fourteenth amendment

supplements this by providing that no State shall deprive any person of property without due process of law.

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What is Property? That is property which is recognized as such by the law, and nothing else is or can be. Property and law are born and must die together. Before the laws, there was no property; take away the laws, all property ceases. In America the law which determines what is property is for the most part the common or customary law, though to this some additions are made by statute. Whatever a man produces by the labor of his hand or his brain, whatever he obtains in exchange for something of his own, and whatever is given to him, the law will protect him in the use, enjoyment, and disposition of. The wild beast is the property of him who captures and subdues it, provided he keeps it subjected to his dominion; game belongs to him who slays it; and so The natural increase of domestic animals is the property of the owner of the mother, and the natural productions of the soil, as well as the crops produced by the labor of man, belong to him who owns the soil.

on.

When an article either intrinsically or by the use to which it is put becomes prejudicial, the law may withdraw from it the attribute of property, and then any one may be at liberty to destroy it. When anything becomes a nuisance, the party incommoded may destroy it if the nuisance cannot otherwise be abated; and if the public are incommoded, the right to abate is general. Sometimes things are declared nuisances by law because of their injurious influence upon the morals of the community; as for example, lottery tickets when kept for sale, the implements by means of which games of chance are played, when kept for gambling, and intoxicating liquors when

1 Bentham, Principles of the Civil Code, ch. 8.

offered for sale in violation of law. But when the wrong consists solely in the use to which an article, not a nuisance in itself, is put, the owner's property in it cannot be taken away until it has been judicially determined that a breach of the law has been committed. A private citizen cannot determine for himself that a property right in some other person has been forfeited by disobedience of law.1 Who restrained. -The prohibitions of the Constitution apply to all departments of government, and to all private citizens. The executive must of course always show authority of law for his action: and when this is out of his power, what he does cannot be by due process of law. All ministerial officers must show warrant for everything they assume to do in apparent disturbance of the rights of others. The judiciary, from the highest courts to the lowest, must exercise its authority within the limits permitted by law, or it will act without jurisdiction, and therefore without due process.

The validity of judicial action is tested by the one question, Was it done with jurisdiction? Jurisdiction is commonly said to be, first, of the subject-matter, and, second, of the persons concerned. The former divides itself into territorial and subjective. Every court has its territorial jurisdiction assigned to it by law, and its process is inoperative outside the prescribed limits. And within those limits the court may take cognizance of such causes of action as may be committed to it by law, and by the acts of parties having a right to bring suit. For example, the Circuit Court of the United States for the District of Delaware has a territorial jurisdiction within that State only; but to ascertain what may be the subject-matter of a suit in that court, it is necessary to consult the Constitution aud the laws of the United States, and sometimes also the common law. The Constitution prescribes to what cases the

1 Fisher v. McGirr, 1 Gray, (Mass.) 1.

jurisdiction may be extended; the laws of Congress extend it to all these cases, or to less than all, as shall be deemed wise; but these laws are made with those common-law principles in view which determine what causes of action are local, and what are transitory. Thus, the Constitution permits a citizen of another State to sue a citizen of Delaware in the United States courts; the law of Congress authorizes the suit to be brought in the United States Circuit Court only when the amount or value in controversy exceeds five hundred dollars. But if the matter in dispute was the recovery of possession of land in another State; it could not be brought in Delaware, because such an action is local, and must be brought where the land is; while if it was the recovery of the amount of a promissory note, it would be immaterial where the right of action arose, as such an action is always transitory; by which is meant, that it may be brought wherever service can be obtained, if the local law permits.

Consent can never confer jurisdiction of the subjectmatter of suits.1 Courts are created, and their jurisdiction limited and defined, on considerations of general public policy, and parties cannot be suffered of their own discretion to modify and enlarge these limits. Therefore, where a court by law has no authority to take cognizance of a particular subject-matter in controversy, if it shall proceed to do so either party to the controversy may repudiate its action at any stage of the proceedings, and refuse to be bound by them; and his previous consent to them, however formal, can never be an impediment to his rejecting them.2 This is the conclusive reason why di

1 Mordecai v. Lindsay, 19 How. 199; Montgomery v. Anderson, 21 How. 386; Coffin v. Tracy, 3 Caines, (N. Y.) 128; Preston v. Boston, 12 Pick. (Mass.) 7; Green v. Collins, 6 Ired. (N. C.) 139.

2 Bostwick v. Perkins, 4 Geo. 47; Ginn v. Rogers, 9 Ill. 131; White v. Buchanan, 6 Cold. (Tenn.) 32.

vorces obtained collusively by citizens of one State in the tribunals of another, are wholly inoperative and null; for no court of one State can take cognizance of the domestic relations of another with a view to their dissolution.1

Jurisdiction of the persons of litigants is acquired by courts in the following ways:- 1. Of the plaintiff, by his voluntary institution of suit; and, 2. Of the defendant, by. his being served with legal process at the commencement of suit, or by his voluntary appearance in suit without process, or after irregular service of process. This jurisdiction may always be given to courts by consent of the party, provided the subject-matter of the controversy is within their jurisdiction.

Some cases are said to proceed in rem, because the process which begins them is served upon the thing which is the subject of controversy, instead of upon parties, and the pleadings and other proceedings take notice of the thing in litigation, and not of those interested in it. The law or the practice of the court may require notice to be given in some form to the parties concerned before final judgment, but the jurisdiction is obtained by the original seizure or service.

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Irregularities in Judicial Action. When a court has acquired jurisdiction, it may nevertheless exercise it irregularly. An irregularity consists in the failure to observe that particular course of proceeding which, conformably to the practice of the court, ought to have been observed in the case. It is a general rule, that, while a want of jurisdiction renders the proceedings of a court void, an irregularity only subjects them to be avoided on a direct proceeding instituted for the purpose. The proper proceeding is either, -1. An application to the court in which the irregularity occurred, to set aside all action based upon

1 Cheever v. Wilson, 9 Wall. 108; Hoffman v. Hoffman, 46 N. Y. 30; People v. Dawell, 25 Mich. 247; Leith v. Leith, 39 N. H. 20.