Page:Borden v. State ex rel. Robinson.pdf/14

532 in and respect for the laws which is the highest guarantee for their enforcement.

Then for any operation to such an extent as this, the rule in question falls far short of the standard of a natural law, and if so to any extent some of these others must be of paramount import when tried by the same standard. Perhaps however it would be more accurate to say that none of these rules are natural laws although doubtless the rendition of a judicial sentence against a defendant without previous notice express or implied would be a violation of one of the most important principles connected with the administration of justice. Nor have we been able to find that the common law consecrated this rule as a law of nature by a strict conformity to its provisions. On the contrary, there is very conclusive evidence that it could not have been so regarded.

The common law proceeding of outlawry was inconsistent with such an idea to its full extent. The result of this proceeding was in the first place a judical sentence by which the defendant incurred a qualified forfeiture of his lands and goods and a suspension of his civil rights as a citizen: and in the second place it enabled the plaintiff in a civil action, by application to the court of Exchequer, or by petition, when his claim exceeded fifty pounds, to obtain satisfaction of his claim by a sale of the property thus seized. And there is a strong case as to a judgment of outlawry cited by the court in the ease of McPherson vs. Carliff et al. 11 ''Serg. & Rawle'' 438, to sustain the proceedings of the probate court as to the sale of real estate when those proceedings were unsuccessfully attacked on the ground that it had proceeded under a total mistake as to the real parties in interest, the court having proceeded under the idea that a family of children, who were really bastards, were the heirs of the deceased. That case is cited from 10 Vin. (Title Record C. pl. 2, from Br. E. pl. 78,) "Record of outlawry of divers persons was certified in the Exchequer, among whom one was certified outlawed and was was not outlawed, and that his goods forfeited were in the hands of I. N., and upon process made against him be came and said