Laws 1822-1824, p. 261, chap. 162); and, and satisfy any judgment recovered, to found [106] its way, without change the extent of the value of the property material to the present purpose, into attached (15 Del. Laws 612, chap. 473). Delaware Rev. Code 1852, as chap. 104. In this form it is found in Del. Rev. By 3 (Code, § 2266), a defendant de- Code 1915, 4123, § 6, quoted in the marsiring to enter appearance was required gin, supra. to put in special bail to the value of the property attached.

and suggested that the legislature provide a remedy (6 Boyce (Del.) 435). There followed an amendatory act of March 23, 1917 (29 Del. Laws, 844, chap. 258), permitting an appearance and defense without the giving of special security, but leaving the lien upon the property attached to remain as security pro tanto; which was made to apply, subject to conditions, to all suits instituted (as this one was) after January 1, 1915. Whether plaintiff in error was at liberty to avail himself of this statute we are not advised; and for present purposes it will be disregarded.

It will be seen that, from the beginning, the giving of security, either in In 1856 it was held by the superior the form of special bail or a substituted court that the act did not extend to undertaking for the payment of the foreign corporations; and this because a judgment, has been made a condition corporation could not put in special bail precedent to the entering of appearance or be surrendered to bail when it ap- and making defense upon the merits by peared; and, in the absence of provision a nonresident individual defendant for the security to be given, it must be whose property was taken under foreign held that the statute did not contem-attachment. In the present case the plate or include the case of such a cor- court in banc called attention to the poration. Vogle v. New Granada Canal hardship occasionally arising from this, Co. 1 Houst. (Del.) 294, 299. To remedy this, a supplement was enacted March 2, 1857 (11 Del. Laws 482, chap. 424), providing that the writ might be issued against a foreign corporation and like proceedings be had thereon as in other cases, except that the attachment should be dissolved only by defendant bringing into court the sum of money specified as the plaintiff's demand in the affidavit on which the writ was issued, or giving security for the payment of any judgment recovered; but that an appearance might be entered for defendant without bringing in the money or giving the security mentioned, in which case the writ should continue to bind the property attached. An amendment passed March 17, 1875 (15 Del. Laws 305, 306, chaps. 181, 182), eliminated the express provision for appearance without dissolving the attachment, and amended the provision as to the form of security to be given, leaving the section to stand as it appears in Del. Rev. Code 1915, 4143, § 26, quoted in the margin, supra. Notwithstanding this amendment, it seems to be thought that, in attachment against a foreign corporation, the entry of security is still not a prerequisite to appearance, and necessary only if it be desired to discharge the garnishees and the property attached (2 Woolley, Del. Pr. § 1293); and in favor of plaintiff in error shall so assume.


[107] Meantime, the provision requiring a nonresident individual to enter special bail as a condition of making appearance remained as before until March 6, 1877, when the legislature substituted a provision requiring security to be given to the satisfaction of the plaintiff or of the court to the value of the property attached and costs, conditioned that defendant answer the plaintiff's demand

The courts of Delaware at all times have laid emphasis upon the difference between the original character of a suit by foreign attachment, treating it as an ex parte proceeding quasi in rem, looking to a judgment of condemnation against the property attached, and having the incidental object of compelling defendant's appearance [108] on the one hand-and the action in personam, with its appropriate incidents, that resulted from an appearance by defendant, accompanied by the giving of securityon the other. Wells v. Jones (1861) 2 Houst. (Del.) 329, 369, 370; Frankel v. Satterfield (1890) 9 Houst. (Del.) 201, 209, 19 Atl. 898; National Bank v. Furtick (1895) 2 Marv. (Del.) 35, 51, 44 L.R.A. 115, 69 Am. St. Rep. 99, 42 Atl. 479. Recognizing the fundamental character of this distinction, and regarding the foreign attachment in Delaware as wholly statutory, the courts have not felt at liberty, in the absence of legislation, to give to the proceeding a hybrid character by permitting an appearance without security other than the property attached, leaving this to answer pro tanto the plaintiff's demand. The requirement of special bail as a condition of appearance was long

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familiar in bailable actions at common having been acted on by them after the law and in admiralty proceedings. In settlement of this country." requiring such bail from a nonresident defendant whose goods had been seized, and who desired to be heard to contest the plaintiffs' demand, Delaware did but follow familiar precedents and analogies, besides conforming to the Custom. It is not contended that the substitution, by the 1877 amendment, of a bond conditioned for payment of the judgment to the extent of the value of the property attached, in lieu of the special bail formerly required on entering appearance, made a substantial difference, rendering the new requirement any more obnoxious to the due process clause than the earlier. It is the imposing of any condition whatever upon the right to be heard that is complained of.

In Pennoyer v. Neff, 95 U. S. 714, 722-724, 24 L. ed. 565, 568, 569, it was shown that the process of foreign attachment has its fundamental basis in the exclusive jurisdiction and sovereignty of each state over persons and property within its borders; and although emphasis was there laid upon the authority and duty of a state to protect its own citizens in their claims against nonresident owners of property situate within the state, it is clear that, by virtue of the "privileges and immunities" clause of § 2 of art. 4 of the Constitution, each state is at liberty, if not under a duty, to accord the same privilege of protection to creditors [110] who are citizens of other states that it accords to its own citizens. Blake v. MeClung, 172 U. S. 239, 248 et seq., 43 L. ed. 432, 435, 19 Sup. Ct. Rep. 165.

Hence the question is whether the state, in thus adopting a time-honored method of procedure and preserving, as The record before us shows no judga part of it, a time-honored requirement ment entered against plaintiff in error of security, and in adhering logically to in personam, but only one for carrying the ancient distinction between a pro- into effect a lien imposed upon his inceeding quasi in rem and an action interest in property within the jurisdicpersonam, to the extent of refraining, tion of the state for the purpose of satuntil the amendment of 1917, from isfying a demand made against him as enacting legislation recognizing the pe- a nonresident debtor, and established to culiar appeal [109] of a defendant who the satisfaction of the court. And an may have no resources or credit aside analysis of his contentions shows that from the property attached, must be re- the real complaint was and is, not that garded as having deprived such a defend- there was any departure, arbitrary or ant of his property without due process otherwise, from the due and orderly of law, in contravention of the 14th course of procedure provided by the Amendment. In our opinion, the ques- statutes of Delaware long before the tion must be answered in the negative. case arose, but rather that the courts of the state declined to recognize the peculiar hardship of his case as sufficient ground for relaxing in his behalf the established legal procedure. His appeal in effect was to the summary and equitable jurisdiction of a court of law so to control its own process and proceedings as not to produce hardship. This is a recognized extraordinary jurisdic tion of common-law courts, distinguishable from their ordinary or formal jurisdiction. It has been much developed since the separation of the American Colonies from England. But, where the proceedings have been regular, it is exercised as a matter of grace or discretion, not as of right, and is character

In Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 276, 280, 15 L. ed. 372, 374, 376, which arose under the due process clause of the 5th Amendment, the court, by Mr. Justice Curtis, declared (pp. 276, 277): "The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the Constitution itself, to see whether this process be in conflict with any of its pro-ized by the imposition of terms on the visions. 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 the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by

party to whom concession is made. Smith's Action at Law, 4th ed. (1851) pp. 22-27; Stewart's Blackstone (1854) vol. 3, pp. 334-338. A liberal exercise of this summary and equitable jurisdiction, in the interest of substantial justice and in relaxation of the rigors of

However desirable it is that the old

strict legal practice, is to be commended; but it cannot be said to be essential forms of procedure be improved with to due process of law, in the constitu- the progress of time, it cannot rightly tional sense. be said that the 14th Amendment furnishes a universal and self-executing remedy. Its function is negative, not affirmative, and it carries no mandate

The due process clause does not impose upon the states a duty to establish ideal systems for the administration of justice, with every modern improve- for particular measures of reform. For ment, and with [111] provision against instance, it does not constrain the states every possible hardship that may befall. to accept particular modern doctrines of It restrains state action, whether legisla- equity, or adopt a combined system of tive, executive, or judicial, within law and equity procedure, or dispense bounds that are consistent with the with all necessity for form and method fundamentals of individual liberty and in pleading, or give untrammeled liberprivate property, including the right to ty to make amendments. Neither does be heard where liberty or property is at it, as we think, require a state to relieve stake in judicial proceedings. But a the hardship of an ancient and familiar property owner who absents himself method of procedure by dispensing with from the territorial jurisdiction of a the exaction of special security from an state, leaving his property within it, appearing defendant in foreign attachmust be deemed ex necessitate to con- ment. sent that the state may subject such We conclude that the statutes under property to judicial process to answer consideration were not in conflict with demands made against him in his ab- the due process provision of the 14th sence, according to any practicable Amendment. method that reasonably may be adopted.

without first giving special security, while a foreign corporation may appear and answer without giving any security, except for the lien of the process upon the property attached. But, as we have seen, the difference in treatment was resorted to because, from their nature, corporations could not put in special bail or be surrendered thereunder. This was a reasonable ground for separating defendants into two classes,-individuals and corporations; and it was natural that, in subsequent legislation, the classes should be separately treated, as was done. There is here no denial of the equal protection of the laws, within the meaning of the 14th Amendment.

Under the equal-protection clause it A procedure customarily employed, long is contended that there is unwarranted before the Revolution, in the commer- discrimination in debarring an individcial metropolis of England, and genual from appearing and making defense erally adopted by the states as suited to their circumstances and needs, cannot be deemed inconsistent with due process of law, even if it be taken with its ancient incident of requiring security from a defendant who, after seizure of his property, comes within the jurisdiction and seeks to interpose a defense. The condition imposed has a reasonable relation to the conversion of a proceeding quasi in rem into an action in personam; ordinarily it is not difficult to comply with,-a man who has property usually has friends and credit, -and hence in its normal operation it must be regarded as a permissible condition; and it cannot be deemed so arbitrary as to render the procedure inconsistent with due process of law when applied to a defendant who, through exceptional misfortune, is unable to furnish the necessary security; certainly not where such defendant-as is the case now presented, so far as the record shows-has acquired the property right and absented himself from the state after the practice was established, and hence with notice that his property situate there would be subject to disposition under foreign attachment by the very method that afterwards was pursued, and that he would have no right to [112] enter appearance and make defense except upon giving security.


The objection that the acts abridge the privileges and [113] immunities of citizens of the United States, within the meaning of the same Amendment, is not pressed, and plainly is untenable. has been pointed out repeatedly, the privileges and immunities referred to in the Amendment are only such as owe their existence to the Federal government, its national character, its Constitution, or its laws. Maxwell v. Bugbee, 250 U. S. 525, 537, 538, 63 L. ed. 1124, 1130, 1131, 40 Sup. Ct. Rep. 2, and cases cited. The privileges and immunities of plaintiff in error, alleged to be abridged by the statutes in question, have no such Federal origin.

The judgment under review is af-state formed out of a part of said Northfirmed. west Territory, upon an equal footing with the original states.

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[For other cases, see States, XI. in Digest Sup. Ct. 1908.] Commerce


control of navigable waOrdinance of 1787.

3. So far as the Ordinance of July 13, 1787, for the government of the Northwest Territory, established public rights of highway in navigable waters capable of bearing commerce from state to state, it did not regulate internal affairs alone, and was no more capable of repeal by one of the states than any other regulation of interstate commerce enacted by Congress. [For other cases, see Commerce, II. a; States, XI. in Digest Sup. Ct. 1908.] Courts rules of decision decision of state court.


4. Federal courts in a suit to enjoin the construction of a dam in an alleged navigable river of the United States need not follow a decision of the highest court of the state within which the stream lies, that such stream in its natural condition is not navigable.

[For other cases, see Courts, VII. c, 1, in Digest Sup. Ct. 1908.]

[For other cases, see Waters, I. a, in Digest Waters Sup. Ct. 1908.1

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nance of 1787.

superseding Ordi

2. To the extent that it pertained to internal affairs, the Ordinance of July 13, 1787, for the government of the Northwest Territory, notwithstanding its contractual form, was no more than a regulation of territory belonging to the United States, and was superseded by the admission of a

Note. As to what waters are navigable-see note to Willow River Club v. Wade, 42 L.R.A. 305.

As to navigable waters of the United States-see notes to United States v. The Montello, 22 L. ed. U. S. 391, and Perry v. Haines, 48 L. ed. U. S. 73.

On the right to obstruct or destroy rights of navigation-see note to Hutton v. Webb, 59 L.R.A. 33.

Effect of admission of state into the Union upon Ordinance of 1787-see note to State ex rel. Donahey v. Edmondson, 52 L.R.A. (N.S.) 305.

On state control over navigable waters -see note to Gibson v. United States, 41 L. ed. U. S. 997.

As to state decisions and laws as rules of decision in Federal courts-see notes to Clark v. Graham, 5 L. ed. U. S. 334; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; Mitchell v. Burlington, 18 L. ed. U. S. 351; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508, and Snare & T. Co. v. Friedman, 40 L.R.A. (N.S.) 380.

test of navigability.

5. The test of navigability of a river is whether it, in its natural state, is used or is capable of being used as a highway for commerce over which trade and travel is or may be conducted in the customary modes of trade and travel on water. Navigability in the sense of the law is not destroyed because the watercourse is interrupted by occasional natural obstructions or portages, nor need the navigation be open at all seasons of the year, or at all stages of the water.

-For other cases, see Waters, I. a, in Digest Sup. Ct. 1908.]

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[For other cases, see Commerce, II. b, in
Digest Sup. Ct. 1908.]
Plaines river.

navigable waters Des

or because of artificial obstruc-, their natural and ordinary condition, are used or susceptible of being used, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and they constitute navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from navigable waters of the several states, when they form, by themselves, or by uniting with other waters, a continued highway over which useful commerce is, or may be, carried on with other states or foreign countries in the customary modes in which such commerce is conducted.

8. The Des Plaines river below the city of Joliet, and just above where the Des Plaines joins the Kankakee to form the Illinois river, is a navigable river of the United States, within the meaning of the prohibition in the Act of March 3, 1899, 9, against the construction of a dam in a navigable river of the United States without the approval of the War Department. [For other cases, see Commerce, II. b; Waters,

I. a, in Digest Sup. Ct. 1908.] Commerce


control of navigable waobstructions approval of

War Department.

9. The requirement of the Act of March 3, 1899, § 9, that the War Department approve the location and plans for any dam in a navigable river of the United States, is not in substance satisfied by the refusal of the Secretary of War to act because, as he was assured that the river was not navigable, he had no jurisdiction. This cannot be regarded as an equivalent

to an approval, either in form or effect, or even as an official inquiry into the naviga bility of the river.

[For other cases, see Commerce, II. b, in Digest Sup. Ct. 1908.]

[No. 104.]

The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; The Montello, 20 Wall. 430, 22 L. ed. 391.

The Act of March 3, 1899, under which relief is asked, is of general application to navigable waters throughout the United States. The court of appeals based its judgment solely on a definition of navigable waters of the United States which the law does not recognize, and which admittedly could apply only within a limited territory.

The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; The Montello, 20 Wall. 430, 22 L. ed. 391.

The Ordinance of 1787 and the statutes

Argued December 17, 1920. Decided April for the government of the Northwest

11, 1921.

APPEAL from the United States Cir

cuit Court of Appeals for the Seventh Circuit to review a decree which affirmed a decree of the District Court for the Eastern Division of the North

ern District of Illinois, enjoining the construction of a dam in the Des Plaines river. Affirmed.

See same case below, 168 C. C. A. 138, 256 Fed. 792.

The facts are stated in the opinion. Mr. Frank H. Scott argued the cause and filed a brief for appellant:

The title to the bed of the Des Plaines river at the point in question is in appellant. The contention of the United States that it has title thereto is without any foundation in law.

State ex rel. Deneen v. Economy Light & P. Co. 241 Ill. 290, 89 N. E. 760; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Scott v. Lattig, 227 U. S. 229, 57 L. ed. 490, 44 L.R.A. (N.S.) 107, 33 Sup. Ct. Rep. 242; Donnelly v. United States, 228 U. S. 243, 57 L. ed. 820, 33 Sup. Ct. Rep. 449, Ann. Cas. 1913E, 710; Braxon | v. Bressler, 64 Ill. 488, 13 Mor. Min. Rep. 163.

Navigable waters are those which, in

Territory ceased to have any effect after the admission of the state of Illinois, in 1818.

Van Brocklin V. Brocklin v. Anderson) 117 U. S. 151, 29 Tennessee (Van L. ed. 845, 6 Sup. Ct. Rep. 670; Hawkins v. Bleakly, 243 U. S. 210, 61 L. ed. 678, 37 Sup. Ct. Rep. 255, Ann. Cas. 1917D, 637, 13 N. C. C. A. 959; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185, La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. (Mich.) 155; Sands v. Manistee River Improv. Co. 123 U. S. 288, 31 L. ed. 149, 8 Sup. Ct. Rep. 113.

The court of appeals was in error in stating, in its opinion, that the same principle as that contained in the ordinance was preserved in the Illinois Constitution.

Economy Light & P. Co. v. United States, 168 C. C. A. 138, 256 Fed. 800; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185; Dixon v. People, 168 Ill. 179, 39 L.R.A. 116, 48 N. E. 108; People ex rel. Woodyatt v. Thompson, 155 ill. 451, 40 N. E. 307; State ex rel. Adams v. Cunningham, 81 Wis. 440, 15 L.R.A. 561, 51 N. W. 724.

The court of appeals failed to distin

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