by the Arkansas Supreme Court

“ One of the strongest arguments used in support of the jurisdiction of the court is, that as it must necessarily in a greater or less degree be the judge of its own jurisdiction, the fact that it has assumed and exercised such jurisdiction presupposes that it has passed its judgment in favor thereof, and that to hold a judge accountable for an error of judgment could not be sanctioned, as it would strike at the independence of the tribunal itself. ”

“ In examining the question thus presented and supposed to be sustained, on one side, upon the basis assumed, we shall first inquire whether it be quite accurate to say that notice before judicial sentence is a law of nature, or at least of such universal application as seems to have been supposed, and whether indeed the common law has consecrated it as such by a strict conformity to its provisions. If we find it no law of nature at all, we shall be at full liberty to give effect to certain known rules of the common law, although inconsistent with this supposed law of nature. ”

“ The doing of justice then in a judicial sense is the performance towards another of whatever is due to him in virtue of a perfect and rigorous right, the execution of which he may demand by forcible means unless we satisfy him freely and with good will. While, on the other hand, the performance of duties due to another only in virtue of an imperfect or non-rigorous obligation which cannot be insisted on by violent methods, but the fulfilling of which is left to each man's honor and conscience, are comprehended under humanity, charity or benevolence in opposition to justice. ”

“ Because the law of notice looks clearly to the protection of private rights, while the law of the validity of judgments until reversed by appellate powers, whilst it also protects private rights, looks emphatically to the effective administration of justice, the sanctity of records, the protection of the ministers of justice that they may fearlessly discharge their duties, the stability of titles, the end of strife and the repose of society. ”

“ If it be true that a judge is entitled to exercise a jurisdiction with impunity, because he himself has decided that he possessed it, then indeed to my mind all distinction of jurisdiction is broken down, and the only rule in future must be the will of the judge, or that he has jurisdiction because he has exercised it. ”

“ It is well established by authority that the right to be heard and to defend life, liberty, property and reputation is a natural, inherent right of universal obligation; it is an inherent, indefeasible, constitutional right, and it is a common law right commencing with the earliest history, and never dispensed with in any government, where these rights are recognized or protected by the government ”

“ So that the decisions of the United States courts, when restricted to the particular cases under consideration may be all true, and yet in no wise controvert the position which I assume, which is, that in proceedings against the person, unless the court has first acquired jurisdiction both of the subject matter and the person, it can render no valid judgment by which either life, liberty, property or reputation can be affected. ”

“ Because there was then no human right for such a law to act upon, so far at least as temporal affairs were concerned; no tribunal to enforce its mandates; no individual to claim its protection. In a word, there was no place for its operation among men in their temporal relations towards each other. If then it was a law of nature at all, it was a dormant rule, which, in that condition of man's estate, could never have been derived by the light of reason from "its essential agreeableness to the constitution of human nature." ”

“ Where however the writ has no return, there are no facts upon which the judgment of the court can act, nothing to judge of, and therefore no judgment could be rendered. It would be like declaring a blank paper filed, a declaration, and assuming jurisdiction of the subject matter upon the strength of such judgment. Should the writ be lost and it was made to appear that one had issued, then in its absence we might presume in favor of service, but not where there was nothing to show that a writ issued. That would be basing a presumption upon a presumption ”

“ Unless we could suppose that the citizen is bound to take notice of the proceedings of courts, as they are of public laws, this amounts to saying that their rights may be passed upon and their property taken by judicial determination imheard and undefended by them, and if this rule is to prevail in civil proceedings, where the rights of property is involved (saving perhaps some additional constitutional protection) it is difficult to see why life, liberty and reputation may not also be sacrificed under it ”

“ 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 ”

“ If a circuit court were to assume jurisdiction of a matter committed by law to the probate court exclusively, or the county court were to assume jurisdiction of a military officer, or if the probate court were to try and condemn a man for high treason, such proceedings would be all nullities, because there would be no foundation at all for such proceedings: no case had ever been presented to bring into action any judicial power of these Courts. ”

“ The court had already power over the defendant, if within reach of its process, and the process is the instrumentality by which this power can be rightfully exercised. If the power is exercised without the process it is wrongfully exercised, but not the less exercised because wrongfully exercised. It is still the exercise of judicial power and the record speaks the verity of its exercise as the sheriff's return of "Executed" speaks the verity of service of process, although there may have been in fact no service at all. ”

“ It is manifest at a glance that such a law of nature, as that supposed, could have had no operation even if it had existed before the establishment of the civil state and while man was in a state of nature. ”

“ We are fully aware that there are highly respectable authorities, besides some of the previous decisions of this court, which are directly against the conclusion to which we have arrived on the main question; but, with due deference, we think all such have lost sight of the controling distinction between the judicial powers of superior and inferior courts of special and limited jurisdiction and the consequent paramount doctrine that the judgment of a superior court can never be a nullity to be entirely disregarded. ”

“ Burdick, 1 Hill R. 139, Bronson, J. said, "It is a cardinal principle in the administration of justice that no man can be condemned or divested of his rights until he has had the opportunity of being heard."
In Bustard vs. Gates and wife, 4 Dana R. 435, Robertson, C. J. said, "It is a general rule of the common law and of common sense, as well as of common justice, that a court has no jurisdiction to render a judgment against a person, who has had no notice whatever of the proceedings against him." ”

“ An imprisonment under a judgment can not be unlawful unless that judgment be an absolute nullity, and it is not a nullity if the court has a general jurisdiction of the subject although it be erroneous. ”

“ The probate court being not only a court of record, but a constitutional court of fixed and permanent character invested with general jurisdiction and plenary power's over the matters committed by law to its peculiar cognizance, and open to superior review by appeal, is to be regarded as a superior court. ”

“ I do not intend to be understood as assuming that every fact necessary th confer jurisdiction on a court of superior jurisdiction must affirmatively appear of record. In this I think the former decisions have gone too far. Every reasonable presumption in favor of the rightful exercise of jurisdiction ought to be indulged. But where the record (the writ and return being taken as part of it) repels the presumption of notice, as in case the writ should be returned "not found," and the record should state that the defendant made default, there no ground for presumption would exist ”

“ A court, which is so constituted that its judgments can be looked through for the facts and evidence which are necessary to sustain it, whose decision is not evidence of ifself to show jurisdiction and its lawful exercise, is of the latter description, every requisite for either must appear on the face of their proceedings, or they are nullities. ”

“ That is to say, that the powers invested in the superior courts were general powers and those vested in the inferior courts limited powers. And the consequence would be, as to the former, that there could be no defect of power so long as judicial action was confined to a subject within the jurisdiction of one of these courts, and consequently the functionary could never be a trespasser, however contrary to law might be the proceedings on such a subject matter. ”

“ So, all rights which appertain to man are of one or the other of two classes, that is to say, 1st, natural rights; or 2d, acquired rights. The former are such as appertain originally and essentially to man, such as are inherent in his nature and which he enjoys as a man independent of any particular act on his side. ”

“ Ab. 67. "The judgments of a superior court are never considered void and until set aside they are to be considered as regular judgments for every purpose." (Stebbin Walbridge vs. Hiland Hall, 3 Vermont Rep. 114.) "A judgment of a court of competent jurisdiction, though rendered in a form of proceeding unknown to our practice and apparently without service of process cannot be treated as a nullity while unreversed." (Weyer vs. Zane, 3 Ham. Ohio R. 305.) "However summary or irregular the judgment of a competent tribunal may be it cannot be treated as a nullity." ”

“ Concede it to be true that the right to hold and enjoy the use of property to the exclusion of others, that it grew up with and not before organized society, still the use of the one is so connected with the enjoyment of the other, that to impair or abridge the one materially affects if it does not destroy the other. ”

“ And it has never been considered a valid objection to a rule of public policy that it may produce disadvantages to an individual, for partial inconvenience is the inevitable consequence of every such rule: nevertheless the production of the general good authorizes their establishment. ”

“ And this will be manifest at once when it is considered that it only requires a period of about forty years to pass every atom of property in the State real and personal and many choses in action through the ordeal of the probate court; while it is estimated that the whole would not be passed through the circuit court in an entire century. ”

“ And the judgment by default which followed would be equally valid in each case, and would stand upon the same footing in all respects, except that it might be possible that an appellate court might reverse one of them for an erroneous adjudication as to the sufficiency of service, while in the other there would be no ground to suppose it insufficient. ”

“ Thus, in the case of The Mary, which was a proceeding in rem in the Admiralty court, Chief Justice Marshall takes the distinction between these and proceedings against the person, and says, "where the proceedings are against the person, notice is served personally or by publication: where they are in rem, notice is served upon the thing itself." ”

“ The only question which can arise between an individual claiming a right under the act done and the public or any person denying its validity, are, power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer ”

“ When therefore mischief would flow into society by the too general operation of a given rule there would he the same authority in that society to restrict its operation within conservative limits either by positive enactment or else by giving freer, and, to this extent, paramount scope to some already existing countervailing rides, that there was in the first place to give sway to the rules thus curtailed ”