modes of administering justice that it amounts to a denial of due process. And this must be determined not alone with reference [104] to a case of peculiar hardship arising out of exceptional circumstances, but with respect to the general effect and operation of the system of procedure established by the statutes.

appear or raise [105] an issue about the debt claimed without entering special bail, or else surrendering his body. Andrews v. Clerke, Carth. 25, 26, 90 Eng. Reprint, 619. Hence it naturally came about that the American colonies and states, in adopting foreign attachment as a remedy for collecting debts due from nonresident or absconding debtors, in many instances made it a part of the procedure that if defendant desired to enter an appearance and contest plaintiff's demand, he must first give substantial security, usually in the form of special bail. Besides Delaware, this was true of New Jersey (Pat. L. p. 296, § 7; p. 298, § 16; Watson v. Noblett, 65 N. J. L. 506, 508, 47 Atl. 438); Pennsyl vania (M'Clenachan v. M'Carty, 1 Dall. 375, 378, 1 L. ed. 183, 184); Maryland (Camphell v. Morris, 3 Harr. & McH. 535, 552, 553); Virginia (Tiernans v. Schley, 2 Leigh, 25, 29); North Carolina (Britt v. Patterson, 31 N. C. (9 Ired. L.) 197, 200; Alexander v. Taylor, 62 N. C. (Phill. Eq.) 36, 38); South Carolina (Acock v. Linn, 16 S. C. L. (1 Harp.) 368, 369, 370; Fife v. Clarke, 14 S. C. L. (3 M'Cord) 347, 352; Callender v. Duncan, 18 S. C. L. (2 Bail.) 454); Tennes

The act concerning foreign attachments has been upon the statute books of Delaware since early colonial days. Like the attachment acts of other states, it traces its origin to the custom of London, under which a creditor might attach money or goods of the defendant either in plaintiff's own hands or in the custody of a third person, by proceedings in the mayor's court or in the sheriff's court. The subject is treated at large in Bohun's Privilegia Londini, 3d ed. 1723, pp. 253 et seq. See also Bacon, Abr. (Bouvier's ed.), title, "Customs of London (H);" Comyn's Dig. 4th ed. title, "Attachment, Foreign (A);" Pulling, "Laws & Customs of London," 2d ed. 187 et seq.; Serg. Attachm. Appx. pp. 205 et seq. As is said in Drake, Attachm. § 3: "This custom, notwithstanding its local and limited character, was doubtless known to our ancestors, see (Boyd v. Buckingham, 10 Humph. when they sought a new home on the Western continent, and its essential principle, brought hither by them, has, in varied forms, become incorporated into the legal systems of all our states; As to the legislation in Delaware, Our circumstances as a nation where the system is authoritatively dehave tended peculiarly to give impor- duced from the Custom of London tance to a remedy of this character. (Reybold v. Parker, 6 Houst. (Del.) 544, The division of our extended domain 555; Reynolds v. Howell, 1 Marv. (Del.) into many different states, each limited- 52, 59, 31 Atl. 875; Fowler v. Dickson, ly sovereign within its territory, inhab- 1 Boyce (Del.) 113, 119, 74 Atl. 601), ited by a people enjoying unrestrained not stopping to trace early colonial laws privilege of transit from place to place mentioned in Reybold v. Parker, supra in each state, and from state to state; (p. 553), we find that an act providing taken in connection with the universal for proceedings by attachment against and unexampled expansion of credit, nonresident as well as against abscondand the prevalent abolishment of im- ing debtors was passed by the assembly prisonment for debt, would naturally, of the Delaware counties and the provand of necessity, lead to the establish-ince of Pennsylvania March 24, 1770 ment, and, as experience has demonstrated, the enlargement and extension, of remedies acting upon the property of debtors."

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434, 437); and Ohio (1 Chase's Stat. 462, § 15, cited by counsel in Voorhees v. Jackson, 10 Pet. 449, 453, 9 L. ed. 490, 492).

(Del. Laws 1753-1777, pp. 165, 174); was supplemented by acts of the legislature of the state of Delaware, January 31, 1817 (Del. Laws 1817, p. 232, chap. 133), and January 27, 1823 (Del.

1986. Sec. 72. For all purposes of title, action, attachment, garnishment and jurisdiction of all courts held in this state, but not for the purpose of taxation, the situs of the ownership of the capital stock of all corporations existing under the laws of this state, whether organized under this chapter or otherwise, shall be regarded as in this state.

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.

It will be seen that, from the beginning, the giving of security, either in the form of special bail or a substituted undertaking for the payment of the judgment, has been made a condition precedent to the entering of appearance and making defense upon the merits by a nonresident individual defendant whose property was taken under foreign attachment. In the present case the court in banc called attention to the hardship occasionally arising from this, 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.

In 1856 it was held by the superior court that the act did not extend to foreign corporations; and this because a corporation could not put in special bail or be surrendered to bail when it appeared; and, in the absence of provision for the security to be given, it must be held that the statute did not contemplate or include the case of such a corporation. Vogle v. New Granada Canal 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 we shall so assume. [107] Meantime, the provision requir-garding the foreign attachment in Deling 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 re

aware 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

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.

Hence the question is whether the state, in thus adopting a time-honored method of procedure and preserving, as a part of it, a time-honored requirement of security, and in adhering logically to the ancient distinction between a proceeding quasi in rem and an action in personam, to the extent of refraining, until the amendment of 1917, from enacting legislation recognizing the peculiar appeal [109] of a defendant who may have no resources or credit aside from the property attached, must be regarded as having deprived such a defendant of his property without due process of law, in contravention of the 14th Amendment. In our opinion, the question must be answered in the negative.

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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 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 the emigration of our ancestors, and which are shown not to have been unsuited to their civil and poli.ical condition by

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.

The record before us shows no judgment entered against plaintiff in error in personam, but only one for carrying into effect a lien imposed upon his interest in property within the jurisdiction of the state for the purpose of satisfying a demand made against him as a nonresident debtor, and established to the satisfaction of the court. And an analysis of his contentions shows that the real complaint was and is, not that there was any departure, arbitrary or otherwise, from the due and orderly course of procedure provided by the statutes of Delaware long before the 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 ju risdiction. 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 characterized by the imposition of terms on the 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 for particular measures of reform. For instance, it does not constrain the states to accept particular modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to make amendments. Neither does it, as we think, require a state to relieve the hardship of an ancient and familiar method of procedure by dispensing with the exaction of special security from an appearing defendant in foreign attachment.

The due process clause does not impose upon the states a duty to establish ideal systems for the administration of justice, with every modern improvement, and with [111] provision against every possible hardship that may befall. It restrains state action, whether legislative, executive, or judicial, within bounds that are consistent with the fundamentals of individual liberty and private property, including the right to be heard where liberty or property is at stake in judicial proceedings. But a property owner who absents himself from the territorial jurisdiction of a state, leaving his property within it, must be deemed ex necessitate to consent 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. A procedure customarily employed, long before the Revolution, in the commercial metropolis of England, and gen. 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 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.


Under the equal-protection clause it is contended that there is unwarranted discrimination in debarring an individual from appearing and making defense 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.


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.

Mr. Justice McReynolds concurs in the result.

The CHIEF JUSTICE and Mr. Justice Clarke dissent.

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

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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

ECONOMY LIGHT & POWER COMPANY, was no more capable of repeal by one of


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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.]

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admission 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.

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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.

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