Page:Federal Reporter, 1st Series, Volume 1.djvu/682

 67^ FEDERAL REPORTER. �a state, by law, to abrogate,'within its limits the institution of property altogether. And, although it Ib true that that ■which a man bas not cannot be taken from bim, yet the nec- essary implication of the amendment is that property, as generally understood, witb ail its necessary incidents, shall forever be preserved within the limits of the Union. Nor can it be claimed that this particular statute can be sustained as not depriving persons of their property without "due process of law," on the ground that it is a well recognized and defined case, in which, from necessity and by long usage, anterior to the establishment of the constitution, process other than judicial, and wanting in the essential parts of actor, reus, judex, regular allegations, opportunity to answer, and a trial aecording to some settled course of judicial proceeding has become "due process of law," as was held in respect to the executive warrant against a tax collector; for, on the con- trafy, this statute, as construed by the court of appeals, ia conceded to be a novelty in legislation. �This mode of depriving a living person of bis estate, by holding him concluded by a surrogate's decision that he is dead, has no support elsewhere in the authority of the Eng- lish or American courts, so far as is shown. It has been by courts of the highest authority declared or treated as a legal impossibility. Jochimsen v. Suffolk Savings Bank, 3 Allen, 87 ; Allen \. Dundas, 3 T. E.'125; Griffith v. Frazier, 8 Cranch, 9; Melia v. Simmons, 45 Wis. 334; Morgan v. Dodge, 44 N. H. 259; Duncan v. Steivart, 25 Ala. 408; McPherson v. Cauliff, 11 S. & E. 422; Bolton v. Jacks, 6 Kobt. 190, See, also, 15 Am. L. Eeg. 212. �Every restriction on the power of the states contained in the national constitution may be expected, in some instances, to involve some hardship ; and in this case it may be that the protection in this way of an innocent person who had, under a mistake as to the fact, lost his money by paying it to a per- son having no authority to reçoive it, might, in a certain sense, be considered humane, and if it were lawful, and in- fringed no one's rights, proper and commendable. But these restrictions upon legislation and judicial power are imposed ��� �