Page:Borden v. State ex rel. Robinson.pdf/24

542 not only superior but final in its powers, is it at all more unreasonable, or indeed as much so, that for the mere purpose of preventing the consequences of holding a judgment a nullity the same rule should be made to override, in cases where the court has undoubted jurisdiction of the subject matter that which requires also the jurisdiction of the person? Upon general principles there would seem to be much less difficulty in dispensing with jurisdiction of the person than the subject matter. For it would seem at first blush almost clear that, if the subject matter was without the jurisdiction of the court, there was no foundation at all for the entire proceeding; and that nothing short of something approaching very nearly to judicial legerdemain could sustain proceedings under such circumstances; while on the other hand if there was a plaintiff and a declaration there would seem at least to be one party and a regular complaint against another, and whatever judicial action the court might take on these would be upon a valid foundation.

There would be another general consideration in favor of this view of the matter. Each person within the territorial jurisdiction of a court is subject to its power unless specially exempted, but causes of action are parceled out among different courts. Thus each court has jurisdiction of all persons within its limits unless specially excepted, but of no cause of action not committed to it. Therefore it would seem that there could very rarely be an absolute want of power as to the person and might often be as to the subject matter. In other words, under our system all our superior courts have a general jurisdiction as to persons and a limited jurisdiction as to subject matter, and therefore there should be a more liberal intendment as to the jurisdiction of the person than of the subject matter. And this would seem to be the true foundation of the rule that, although a presumption will not be indulged as to the subject matter, yet presumptions as to jurisdiction over the person will be indulged. And this general view seems not unsustained by the usages of the English courts in sustaining jurisdiction as to the person in some cases upon the ground of native allegiance; in others, upon