pl. 60); and of a fine, with proclamations after the same time; or by a later statute after five years (2 Bl. Comm. 354; 2 Inst. 510, 518; St. 18 Edw. I., "Modus Levandi Fines;' St. 34 Edw. III. c. 16; St. 4 Hen. VII. c. 24; St. 32 Hen. VIII. c. 36). It would have astonished John Adams to be told that the framers of our constitution had put an end to the possibility of these ancient institutions. A somewhat similar statutory contrivance of modern days has been held good. Turner v. People, 168 U. S. 90. Finally, as was pointed out by the counsel for the petitioners, a proceeding in rem, in the proper sense of the words, might give a clear title without other notice than a seizure of the res and an exhibition of the warrant to those in charge. 2 Browne, Civil Law, 398. The general requirement of advertisement in admiralty cases is said to be due to rules of court. U. S. Adm. Rule 9; Betts, Adm. (1838) 33, 34, App. 14.

The prohibition in the Fourteenth Amendment against a State depriving any person of his property without due process of law, and that in the twelfth article of the Massachusetts Bill of Rights, refer to somewhat vaguely determined criteria of justification, which may be found in ancient practice (Murray's Lessee v. Improvement Co., 18 How. 272, 277); or which may be found in convenience and substantial justice, although the form is new. (Hurtado v. California, 110 U. S. 516, 528, 531; Holden v. Hardy, 169 U. S. 366, 388, 389.) The prohibitions must be taken largely with a regard to substance rather than to form, or they are likely to do more harm than good. It is not enough to show a procedure to be unconstitutional to say that we never have heard of it before. Hurtado v. California, 110 U. S. 516, 537. Looked at either from the point of view of history or of the necessary requirements of justice, a proceeding in rem, dealing with a tangible res, may be instituted and carried to judgment without personal service upon claimants within the State, or notice by name to those outside of it, and not encounter any provision of either constitution. Jurisdiction is secured by the power of the court over the res. As we have said, such a proceeding would be impossible were this not so; for it hardly would do to make a distinction between the constitutional rights of claimants who were known and those who were not known to the plaintiff, when the proceeding is to bar all. Pennoyer. Neff, 95 U. S. 714, 727; The Mary," 9 Cranch, 126, 144; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030; Brown v. Board, 50 Miss. 468, 481, 2 Freem. Judgm. (4th ed.) §§ 606, 611. In Hamilton v. Brown, 161 U. S. 256, a judgment of escheat was held conclusive upon persons notified only by advertisement, to all persons interested. It is true that the statute under consideration required the petition to name all known claimants, and personal service to be made on those so named. But that did the plaintiffs no good, as they were not named. So, a decree allowing or disallowing a will binds everybody, although the only notice of the proceedings given be a general notice to all persons interested. And in this case, as in that of escheat just cited, the con

clusive effect of the decree is not put upon the ground that the State has an absolute power to determine the persons to whom a man's property shall go at his death, but upon the characteristics of a proceeding in rem. Bonnemort v. Gill, 167 Mass. 338, 340, 45 N. E. 768. See 161 U. S. 263, 274. Admiralty proceedings need only to be mentioned in this connection, and further citation of cases seems unnecessary.

Speaking for myself, I see no reason why what we have said as to proceedings in rem in general should not apply to such proceedings concerning land. In Arndt v. Griggs, 134 U. S. 316, 327, it is said to be established that "a State has power, by statute, to provide for the adjudication of titles to real estate within its limits as against nonresidents who are brought into court only by publication." In Hamilton v. Brown, 161 U. S. 256, 274, it was declared to be within the power of a State "to provide for determining and quieting the title to real estate within the limits of the State, and within the jurisdiction of the court, after actual notice to all known claimants, and notice by publication to all other persons." I doubt whether the court will not take the further step when necessary, and declare the power of the States to do the same thing after notice by publication alone. See Huling v. Improvement Co., 130 U. S. 559, 564; Parker v. Overman, 18 How. 137, 140, 141. But in the present case provision is made for notice to all known claimants by the recorder, who is to mail a copy of the published notice to every person named therein whose address is known (sect. 32). We shall state in a moment one reason for thinking this form of notice constitutional. See, further, Cook v. Allen, 2 Mass. 462, 469, 470; Dascomb v. Davis, 5 Met. 335, 340; Brock v. Railroad Co., 146 Mass. 194, 195, 15 N. E. 555.

But it is said that this is not a proceeding in rem.

It is certain that no phrase has been more misused. In the past it has had little more significance than that the right alleged to have been violated was a right in rem. Austin thinks it necessary to quote Leibnitz for the sufficiently obvious remark that every right to restitution is a right in personam. So as to actions. If the technical object of the suit is to establish a claim against some particular person, with a judgment which generally, in theory at least, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam, although it may concern the right to, or possession of, a tangible thing. Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030. If, on the other hand, the object is to bar indifferently all who might be minded to make an objec tion of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts which, if true, show an inconsistent interest, the proceeding is in 2 Freem. Judgm. (4th ed.) § 606, ad fin. All proceedings, like all rights, are really against persons. Whether they are proceedings or rights in rem depends on the number of persons affected.

rem.

Hence the res need not be personified, and made a party defendant, as happens with the ship in the admiralty. It need not even be a tangible thing at all, as sufficiently appears by the case of the probate of wills. Personification and naming the res as defendant are mere symbols, not the essential matter. They are fictions, conveniently expressing the nature of the process and the result, nothing more.

It is true, as an historical fact, that these symbols are used in admiralty proceedings; and also, again, merely as an historical fact, that proceedings in rem have been confined to cases where certain classes of claims, although of very divers sorts, for indemnification for injury, for wages, for salvage, etc., are to be asserted. But a ship is not a person. It cannot do a wrong or make a contract. To say that a ship has committed a tort is merely a shorthand way of saying that you have decided to deal with it as if it had committed one, because some man has committed one in fact. There is no à priori reason why any other claim should not be enforced in the same way. If a claim for a wrong committed by a master may be enforced against all interests in the vessel, there is no juridical objection to a claim of title being enforced in the same way. The fact that it is not so enforced under existing practice affords no test of the powers of the legislature. The contrary view would indicate that you really believed the fiction that a vessel had an independent personality as a fact behind the law. Furthermore, naming the res as defendant, although a convenient way of indicating that the proceeding is against property alone, that is to say, that it is not to establish an infinite personal liability, is not of the essence. If, in fact, the proceeding is of that sort, and is to bar all the world, it is a proceeding in rem.

So, as to seizure of the res. It is convenient in the case of a vessel, in order to secure its being on hand to abide judgment, although in the case of a suit against a man jurisdiction is regarded as established by service, without the need of keeping him in prison to await judgment. It is enough that the personal service shows that he could have been seized and imprisoned. Seizure, to be sure, is said to be notice to the owner. Scott v. Shearman, 2 W. Bl. 977, 979; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030. But fastening the process or a copy to the mast would seem not necessarily to depend for its effect upon the continued custody of the vessel by the marshal. However this may be, when we come to deal with immovables, there would be no sense whatever in declaring seizure to be a constitutional condition of the power of the legislature to make a proceeding in rem. Hamilton v. Brown, 161 U. S. 256, 274. The land cannot escape from the jurisdiction, and, except as security against escape, seizure is a mere form of no especial sanctity, and of much possible inconvenience.

I do not wish to ignore the fact that seizure, when it means real dispossession, is another security for actual notice. But when it is considered how purely formal such an act may be, and that even adverse possession is possible without ever coming to the knowledge of

a reasonably alert owner, I cannot think that the presence or absence of the form makes a constitutional difference; or, rather, to express my view still more cautiously, I cannot but think that the immediate recording of the claim is entitled to equal effect from a constitutional point of view. I am free to confess, however, that, with the rest of my brethren, I think the act ought to be amended in the direction of still further precautions to secure actual notice before a decree is entered, and that, if it is not amended, the judges of the court ought to do all that is in their power to satisfy themselves that there has been no failure in this regard before they admit a title to registration.

The quotations which we have made show the intent of the statute to bind the land, and to make the proceedings adverse to all the world, even if it were not stated in sect. 35, or if the amendment of 1899 did not expressly provide that they should be proceedings in rem. St. 1899, c. 131, § 1. Notice is to be posted on the land just as admiralty process is fixed to the mast. Any person claiming an interest may appear and be heard (sect. 34).

But perhaps the classification of the proceeding is not so important as the course of the discussion thus far might seem to imply. I have pursued that course as one which is satisfactory to my own mind; but, for the purposes of decision, a majority of the court prefer to assume that in cases in which, under the constitutional requirements of due process of law, it heretofore has been necessary to give to parties interested actual notice of the pending proceeding by personal service or its equivalent, in order to render a valid judgment against them, it is not in the power of the legislature, by changing the form of the proceeding from an action in personam to a suit in rem, to avoid the necessity of giving such a notice, and to assume that, under this statute, personal rights in property are so involved, and may be so affected, that effectual notice, and an opportunity to be heard, should be given to all claimants who are known, or who by reasonable effort can be ascertained.

It would hardly be denied that the statute takes great precautions to discover outstanding claims, as we already have shown in detail, or that notice by publication is sufficient with regard to claimants outside the State. With regard to claimants living within the State, and remaining undiscovered, notice by publication must suffice, of necessity. As to claimants living within the State and known, the question seems to come down to whether we can say that there is a constitutional difference between sending notice of a suit by a messenger and sending it by the post-office, besides publishing in a newspaper, recording in the registry, and posting on the land. It must be remembered that there is no constitutional requirement that the summons, even in a personal action, shall be served by an officer, or that the copy served shall be officially attested. Apart from local practice, it may be served by any indif ferent person. It may be served on residents by leaving a copy at the last and usual place of abode. When we are considering a proceeding of this kind, it seems to us within the power of the legislature to say

that the mail, as it is managed in Massachusetts, is a sufficient messenger to convey the notice, when other means of notifying the party, like publishing and posting, also are required. We agree that such an act as this is not to be upheld without anxiety. But the difference in degree between the case at bar and one in which the constitutionality of the act would be unquestionable seems to us too small to warrant a distinction. If the statute is within the power of the legislature, it is not for us to criticise the wisdom or expediency of what the legislature has done.

We do not think it necessary to refer to the elaborate collection of statutes presented by the attorney-general for the purpose of showing that the principle of the present act is old. Although no question is made on that point, we may mention that an appeal is given to the Superior Court, with the right to claim a jury. In our opinion, the main objection to the act fails. See Shepherd v. Ware, 46 Minn. 174, 48 N. W. 773; People v. Simon, 176 Ill. 165, 52 N. E. 910; Short v. Caldwell, 155 Mass. 57, 59, 28 N. E. 1124; Loring v. Hildreth, 170 Mass. 328, 49 N. E. 652.1

LORING and LATHROP, JJ., dissented.

SECTION II.

PERSONAL JURISDICTION.

BUCHANAN v. RUCKER.

KING'S BENCH. 1808.

[Reported 9 East, 192.]

THE plaintiff declared in assumpsit for £2,000 on a foreign judgment of the Island Court in Tobago; and at the trial (Vide 1 Campbell's Ni. Pri. Cas. 63) before Lord Ellenborough, C. J., at Guildhall, produced a copy of the proceedings and judgment, certified under the handwriting of the Chief Justice and the seal of the island, which were proved; which, after containing an entry of the declaration, set out a summons to the defendant, therein described as "formerly of the city of Dunkirk, and now of the city of London, merchant," to appear at the ensuing court to answer the plaintiff's action; which summons was returned "served, etc., by nailing up a copy of the declaration at the court-house door," etc, on which judgment was afterwards given by default. Whereupon it was objected, that the judgment was obtained against the defendant, who never appeared to have been within the limits of the island, nor to have had any attorney there; nor to have been in any other way subject to the jurisdiction of 1 The remainder of the opinion and the dissenting opinion are omitted. — ED.