Page:Borden v. State ex rel. Robinson.pdf/41

Rh means by which they may be affected, these great essentials to freedom and human happiness are presented together, and the like safeguards thrown around each, and for the express purpose that they may be "enjoyed and defended," and the authority to invade the one necessarily implies a like authority to invade either of the others. They are not to be invaded either directly or indirectly. To confer a right necessarily implies a right to use the means necessary to protect it; and when it is said that the citizen shall not be deprived of these rights but by the judgment of his peers or the law of the land, the privilege to appear and defend such rights and for that purpose to have notice of the time when, the place where and the tribunal before which such trial is to be had necessarily follows; or the reservation, to my mind, is a dead letter as to each. So that, in the absence of all other authority than these express constitutional provisions, notice is indispensably necessary to the validity of the proceeding.

Nor do I think it can be successfully contended that this right to notice was not a common law right, and has been so recognized from its earliest history. By the common law practice, suits were commenced by an original writ sued out of chancery. When this writ was served, if the defendant failed to appear, a judicial writ issued to bring him into court, where at an early day, he appeared alone in person and made oral pleadings. This practice was abandoned, so far as respects the original writ, the personal appearance and oral pleading, but the judicial writ was continued in use although the party usually appeared by attorney, the writ was served upon the defendant and he was in contemplation of law in person or by attorney in court before the declaration was filed against him, and as the writ after performing its office was not considered part of the record, when the record failed to show an appearance of the defendant it was nevertheless presumed that such was the fact. This doctrine of presumptions, so reasonable and almost indispensably necessary (holding the writ to be no part of the record, as the English courts did) was not however based upon the ground that