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like, is not only to be construed strictly against the grantees, but it will not be held to exclude the grant of a similar and competing privilege to others, unless the terms of the grant render such construction imperative.1

* The Constitution of the United States contains pro- [* 397] visions which are important in this connection. One of these is, that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States, and all persons born or naturalized in the United States, and subject to its jurisdiction, are declared to be citizens thereof, and of the State wherein they reside. The States are also forbidden to make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, or to deprive any person of life, liberty, or property, without due process of law, or to deny to any person within their jurisdiction the equal protection of the laws. Although the precise meaning of “privileges and immunities” is not very definitely settled as yet, it appears to be conceded that the Constitution secures in each State to the citizens of all other States the right to remove to, and carry on business therein; the right by the usual modes to acquire and hold property, and to protect and defend the same in the law; the right to the usual remedies for the collection of debts and the enforcement of other personal rights, and the right to be exempt, in property and person, from taxes or burdens which the property, or persons, of citizens of the same State are not subject to. To this extent, at least, discriminations could not be made by State laws against them. But it is unquestionable that many other rights and privileges may be made - as they usually are — to depend upon actual residence: such as the right to vote, to have the benefit of exemption laws, to take fish in the waters of the State, and the like. And the constitutional provisions are not

newly made land to the water. Compare Commissioners of Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446 ; s. c. 6 Am. Rep. 247.

· Mills v. St. Clair County, 8 How. 569; Mohawk Bridge Co. v. Utica & S. R.R. Co., 6 Paige, 554; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87; s. c. 3 Wall. 51.

2 Const. of United States, art. 4, § 2. See ante, pp. 15, 16.
* Const. of United States, 14th Amendment.
* Const. of United States, 14th Amendment.

6 Corfield v. Coryell, 4 Wash. 380; Campbell v. Morris, 3 H. & McH. 554; Crandall v. State, 10 Conn. 343; Oliver v. Washington Mills, 11 Allen, 281.


violated by a statute which allows process by attachment against a debtor not a resident of the State, notwithstanding such process is not admissible against a resident. The protection by due process of law has already been considered. It was not within the power of the States before the adoption of the fourteenth amendment, to deprive citizens of the equal protection of the laws; but there were servile classes not thus shielded, and when these were made freemen, there were some who disputed their claim to citizenship, and some State laws were in force which established discriminations against them. To settle doubts and preclude all such laws, the fourteenth amendment was adopted ; and the same securities which one citizen may demand, all others are now entitled to.

Judicial Proceedings. Individual citizens require protection against judicial action as well as against legislative; and perhaps the question, what constitutes due process of law, is as often made in regard to judicial proceedings as in any other cases. But it is not so difficult here to arrive at satisfactory conclusions, since the bounds of the judicial authority are much better defined than those of the legislative, and each case can generally be brought to a definite and well-settled test. The proceedings in any court are void if it wants jurisdiction of

the case in which it has assumed to act. Jurisdiction is, [* 398] first, of * the subject-matter; and, second, of the persons

whose rights are to be passed upon.2 A court has jurisdiction of any subject-matter, if, by the law of its organization, it has authority to take cognizance of, try, and determine cases of that description. If it assumes to act in a case over which the law does not give it authority, the proceeding and judgment will be altogether void, and rights of property cannot be devested by means of them.

1 Campbell v. Morris, 3 H. & McH. 554 ; State v. Medbury, 3 R. I. 141. And see generally the cases cited, ante, p. 16, note.

? Bouvier defines jurisdiction thus: “ • Jurisdiction is a power constitutionally conferred upon a court, a single judge, or a magistrate, to take cognizance and decide causes according to law, and to carry their sentence into execution. The tract of land within which a court, judge, or magistrate bas jurisdiction is called his territory; and his power in relation to bis territory is called his territorial jurisdiction.” 3 Bouv. Inst. 71.

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And on this point there is an important maxim of the law, that is to say, that consent will not confer jurisdiction : 1 by which is meant that the consent of parties cannot empower a court to act upon subjects which are not submitted to its judgment by the law. The law creates courts, and with reference to considerations of general public policy defines and limits their jurisdiction ; and this can neither be enlarged nor restricted by the act of the parties.

Accordingly, where a court by law has no jurisdiction of the subject-matter of a controversy, a party whose rights are sought to be affected by it is at liberty to repudiate its proceedings and refuse to be bound by them, notwithstanding he may once have consented to its action, either by voluntarily commencing the proceeding as plaintiff, or as defendant by appearing and pleading to the merits, or by any other formal or informal action. This right he may avail himself of at any stage of the case; and the maxim that requires one to move promptly who would take advantage of an irregularity does not apply here, since this is not mere irregular action, but a total want of power to act at all. Consent is sometimes implied from failure to object; but there can be no * waiver of rights by laches in a case where consent [* 399] would be altogether nugatory.?

In regard to private controversies, the law always encourages arrangements ;3 and the settlements which the parties may make for themselves, it allows to be made for them by arbitrators mutually chosen. But the courts of a country cannot have those controversies referred to them by the parties which the law-making power has seen fit to exclude from their cognizance. If the judges

Coffin v. Tracy, 3 Caines, 129; Blin v. Campbell, 14 Johns. 432; Cuyler v. Rochester, 12 Wend. 165; Dudley v. Mayhew, 3 N. Y. 9; Preston v. Boston, 12 Pick. 7; Chapman v. Morgan, 2 Greene (Iowa), 374; Thompson v. Steamboat Morton, 2 Ohio, n. s. 26; Gilliland v. Administrator of Sellers, ib. 223 ; Dicks o. Hatch, 10 Iowa, 380; Overstreet v. Brown, 4 McCord, 79; Green v. Collins, 6 Ired. 139; Bostwick v. Perkins, 4 Geo. 47; Georgia R.R. &c. v. Harris, 5 Geo. 527 ; State v. Bonney, 34 Me. 223; Little v. Fitts, 33 Ala. 343; Ginn v. Rogers, 4 Gilm. 131; Neill v. Keese, 5 Texas, 23; Ames v. Boland, 1 Minn. 365; Brady v. Richardson, 18 Ind. 1 ; White v. Buchanan, 6 Cold. 32.

* Bostwick v. Perkins, 4 Geo. 47; Hill v. People, 16 Mich. 351; White v. Buchanan, 6 Cold. 32.

8 Moore v. Detroit Locomotive Works, 14 Mich. 266; Coyner v. Lynde, 10 Ind. 282.

should sit to hear such controversies, they would not sit as a court; at the most they would be arbitrators only, and their action could not be sustained on that theory, unless it appeared that the parties had designed to make the judges their arbitrators, instead of expecting from them valid judicial action as an organized court. Even then the decision could not be binding as a judgment, but only as an award; and a mere neglect by either party to object the want of jurisdiction could not make the decision binding upon him either as a judgment or as an award. Still less could consent in a criminal case bind the defendant; since criminal charges are not the subject of arbitration, and any infliction of criminal punishment upon an individual, except in pursuance of the law of the land, is a wrong done to the State, whether the individual assented or not. Those cases in which it has been held that the constitutional right of trial by jury cannot be waived are strongly illustrative of the legal view of this subject.1

If the parties cannot confer jurisdiction upon a court by consent, neither can they by consent empower any individual other than the judge of the court to exercise its powers. Judges are chosen in such manner as shall be provided by law; and a stipulation by parties that any other person than the judge shall exercise his functions in their case would be nugatory, even though the judge should vacate his seat for the purposes of the hearing.?

Sometimes jurisdiction of the subject-matter will depend upon considerations of locality, either of the thing in dispute or of the

parties. At law certain actions are local, and others are [* 400] transitory. * The first can only be tried where the prop

erty is which is the subject of the controversy, or in respect to which the controversy has arisen. The United States courts take cognizance of certain causes by reason only of the fact that the parties are residents of different States or countries.3

· Brown v. State, 8 Blackf. 561; Work v. Ohio, 2 Ohio, N. 8. 296 ; Cancemi v. People, 18 N. Y. 128; Smith v. People, 9 Mich. 193; Hill v. People, 16 Mich. 351. See also State v. Turner, 1 Wright, 20.

2 Winchester v. Ayres, 4 Greene (Iowa), 104.

3 See a case where a judgment of a United States court was treated as of no force, because the court had not jurisdiction in respect to the plaintiff. Vose v. Morton, 4 Cush. 27. As to third persons, a judgment against an individual may sometimes be treated as void, when he was not suable in that court or in that manner, notwithstanding he may have so submitted bimself to the jurisdiction as The question of jurisdiction in these cases is sometimes determined by the common law, and sometimes is matter of statutory regulation. But there is a class of cases in respect to which the courts of the several States of the Union are constantly being called upon to exercise authority, and in which, while the jurisdiction is conceded to rest on considerations of locality, there has not, unfortunately, at all times been entire harmony of decision as to what shall confer jurisdiction. We refer now to suits for divorce from the bonds of matrimony.

The courts of one State or country have no general authority to grant divorce, unless for some reason they have control over the particular marriage contract which is sought to be annulled. But what circumstance gives such control ? Is it the fact that the marriage was entered into in such country or State ? Or that the alleged breach of the marriage bond was within that jurisdiction ? Or that the parties resided within it either at the time of the marriage or at the time of the offence? Or that the parties now reside in such State or country, though both marriage and offence may have taken place elsewhere? Or must marriage, offence, and residence, all or any two of them, combine to confer the authority ? These are questions which have frequently demanded the thoughtful attention of the courts, who have sought to establish a rule at once sound in principle, and that shall protect as far as possible the rights of the parties, one or the other of whom, unfortunately, under the operation of any rule which can be established, it will frequently be found has been the victim of gross injustice.

We conceive the true rule to be that the actual, bona fide residence of either husband or wife within a State will give to that * State authority to determine the status of such [* 401] party, and to pass upon any questions affecting his or her continuance in the marriage relation, irrespective of the locality of the marriage, or of any alleged offence; and that any such court in that State as the legislature may have authorized to take cognizance of the subject may lawfully pass upon such questions, and annul the marriage for any cause allowed by the local law. But if a party goes to a jurisdiction other than that of his domicile for the purpose of procuring a divorce, and has residence there for

to be personally bound. See Georgia R.R. &c, v. Harris, 5 Geo. 527 ; Hinchman v. Town, 10 Mich. 508.

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