dissenting.
By the decision in this case this court assumes a position in the front rank of those who concede power in the Legislature to prescribe constructive service of process in personal actions. I had always supposed that certain rights of individuals among a free people were laid away among the fundamentals by that provision of our Declaration of Rights which declares that “No person shall* * *be deprived of life, liberty or property without due process of law,” and that by this provision the hand of sovereignty itself was stayed whenever extended to deprive individuals of those rights. This provision is but a paraphrase of a part of Chapter 29 of Magna Char-ta, which was adopted by the peopleof Floridaby express legislative enactment long before we aspired to be a sovereign and independent State. Flint River Steamboat Company v. Roberts, 2 Fla. 102, text 113, S. C. 48 Am. Dec. 178. Every constitution adopted by our people has perpetuated this provision of Magna Charta, and placed it beyond the control of government, and while other features of our organic law have been changed, modified or abrogated through amendments and revisions of the Constitution, this provision has remained, im*62mutable in substance through all the years that have gone. A provision which for seven hundred years has been the pride and boast of Englishmen and their American descendants, which for ages constituted a shield against unwarranted exercise of kingly power, which is incorporated into the unwritten limitations upon the powers of government in England, and the written limitations upon similar powers in this country, should not be lightly disregarded or frittered away by casuistic interpretation. In this case we deal with it only in its relation to proceedings in courts of justice. An examination of the decided cases on this subject by the American courts will show that they now very generally decline to attempt a definition of due process, or even to outline the general principles by which to ascertain its meaning, leaving each case to be determined to a great extent by such principles as the particular tribunal called upon to decide it ma}^ happen to think applicable to that special case. As a consequence the principles controlling that case may be held inapplicable to the next one that arises,--and ver)'- frequently courts of different States reach opposite conclusions on the same state of facts. Compare our decision in Flint River Steamboat Company v. Roberts, supra, with Flint River Steamboat Company v. Foster, 5 Ga. 194, S. C. 48 Am. Dec. 248; and Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, with Hurtado v. People of California, 110 U. S. 516, 4 Sup. Ct. Rep. 111, 292. In the last mentioned case many definitions of due process are given, but upon careful reading it will be found that they are all “glittering generaltities,” highsounding but conveying no definite meaning. I admit that it is difficult to frame an exact definition, but I do not admit that there are' no definite principles by which to determine what is due process, or that it was intended by this *63provision to invest courts of justice with discretion to condemn or approve a particular proceeding without resort to fixed principles. A power of this character in the judiciary is as dangerous to a free people as in any other branch of the government. A written constitution is a cable intended to hold the ship of State in safe waters: to confine her to the channels of conservatism, plainly marked out upon the charts of past experience, and to prevent her being driven into unknown and doubtful waters by occasional gusts of popular opinion. It is rigid, not elastic; it possesses the unchangeableness attributed to the laws of the Medes and Persians so long as it is not annulled or amended in the manner pointed out by its terms. The provision under consideration was transmitted to us by our ancestors; its necessity grew out of their actual experiences, and it was designed to prevent a repetition of previous unnecessary and arbitrary acts of government in whatever form or guise they might be attempted; and it is to their experience both before and after its adoption, and to our own past history and methods that we must look in order to ascertain what is, and what is not, due process. Can it be doubted then that our people had in view the essential, fundamental rights and guaranties of the common law relative to judicial proceedings in enacting this clause of our Constitution, or that it was intended to have a definite, fixed meaning, which neither time,place nor circumstance could alter, which to-day, to-morrow and forever, should afford protection from encroachment upon these rights, so long as the Constitution remained in force? Can it be doubted that this provision was intended to perpetuate in our jurisprudence, the substance of those principles of the common law which required the rights of its people to be adjudicated by judicial tribunals, proceeding upon notice, trying isssues evolved from plead*64ings in a deliberate and conservative manner according to existing laws in all cases where the settled rules of the common law, acted upon and enforced in this State prior to the Constitution, gave these rights ? The procedure by which this result is to be accomplished may be prescribed, altered or changed by the Legislature at will, where not otherwise forbidden by the Constitution, but the substantial rights, that is to say, the tribunal the notice, the issue, the trial, can not be taken away. The proceeding which we are now considering has none of the elements of a proceeding in rem. It is purely personal in its nature, and the defendants in error are residents of this State, accessible to personal service of process from this or the Circuit Court. Under these circumstances, is that proceeding due process by which this personal action against these residents is given to the jurisdiction of this court for adjudication with no notice to defendants in error, save such as may be implied from the record of the writ of error in the minutes of the Circuit Court ? If there is any one thing secured by the constitutional provision under consideration upon which the courts agree, it is that to authorize a personal judgment, the party defendant must be notified and given an opportunity to defend. I apprehend that this is a natural right; but whether natural or artificial its commanding importance has been so long recognized by civilized people that to deny it is “revolting to the rules of justice.” Russ v. Mitchell, 11 Fla. 80, text 89; Flint River Steamboat Company v. Roberts, 2 Fla. 102, S. C. 48 Am. Dec. 178; Ponder, Executor, v. Graham, 4 Fla. 23; Ex parte Nightingale, 12 Fla. 272; Pennoyer v. Neff, 95 U. S. 714; Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. Rep. 841, and authorities cited. And although some courts seem to concede an almost unlimited power in the Legislature to determine as against its own citizens-*65the character of notice to be given, whether personal or constructive (Continental National Bank v. Thurber, 74 Hun, 632, 26 N. Y. S. 956, affirmed 143 N. Y. 648, 37 N. E. Rep. 828), I deny the powers of government in this State, so long as the provision rrnder consideration remained a part of our Constitution, to authorize constructive service of notice by recording it as against those persons who are accessible to personal service within its jurisdiction, so as to authorize a personal judgment. Brown v. Board of Levee Commissioners, 50 Miss. 468; Bardwell v. Collins, 44 Minn. 97, 46 N. W. Rep. 315, S. C. 9 L. R. A. 152; McNamara v. Casserly, 61 Minn. 335, 63 N. W. Rep. 880; Attorney-General v. Guilbert, 56 Ohio St. --, 47 N. E. Rep. 550; Brown on Jurisdiction, §55. Our ancestors required the best notice practicable to be given. No judgment was ever pronounced until after personal service, or in certain cases, until the return of two successive writs unexecuted. Is there anything in the new and varied experiences of our present situation and system which requires us to accept as due process the lowest grade of constructive service whereon to found our personal judgments? We have means of transportation and of communicating intelligence never dreamed of a few generations ago. These means are far more rapid and effective than those possessed by our ancestors. Instead of being compelled to accept an inferior grade, ought we not with these facilities for giving notice demand as good or even better, if it were possible, than that insisted upon by them? It seems to me, when we are content to substitute a low grade of constructive for personal service that we have been drawing too freely of the inspiration which comes from continental fountains of civil justice, where the absolutism of government prevails.
It is insisted, however, that the act under consider*66ation lias reference to writs of error only; that the writ of error is not a new suit, but merely a step in the continuation of the original suit; that the common law rule requiring notice applied only to the original notice of the institution of the suit, and not to subsequent proceedings in the cause. With this view I do not concur. A writ of error is a proceeding, the object of which is to deprive the defendant in error of a judgment which he has obtained. The proceedings are had in a different court, and a limitation of the time to begin such proceedings with a saving clause is provided, in the same manner as for original suits. The proceedings may be abated, by showing that they are barred, or that thqy are taken against good faith, or that plaintiff in error, if a criminal, has escaped, or that another writ of error in the same cause is pending. The appellate court enters and enforces its own judgment for costs, and under our statute, is empowered to render such judgment as the court below should have rendered in certain cases. It grants relief, not demanded in the lower court, by awarding damages where the writ was taken for delay. The writs issued to bring the parties and the record are original writs of the appellate court, and are process within the meaning of the Constitution New pleadings are infused into the case in the appellate court, peculiar to that court, vis: assignments or errors, and, under our rules, abstracts, &c. There can, therefore, be no doubt that a writ of error is in the nature of a new action, and not a mere continuation of the original suit, and we have express decisions of this court to that effect. State v. Mitchell, 29 Fla. 302, 10 South. Rep. 746; United States Mutual Accident Association v. Weller, 30 Fla. 210, 11 South. Rep. 786; Loring v. Wittich, 16 Fla. 323, text 327; Glasser, Kuder & Ottensoser v. Hackett, 37 Fla. 358, 20 South. Rep. 532. It was deliberately and *67advisedly held in State v. Mitchell, supra, that “a writ of error is a new action, and not a mere continuation of the former suit." To sustain this proposition the court in that case cites 2 Tidd’s Practice, 1141, where it is laid down in broad terms that a writ of error is considered a new suit; International Bank v. Jenkins, 104 Ill. 143, where it was held that a writ of error from the Circuit Court of Cook County to the appellate court was barred by the provisions of a section of the United States bankrupt act reading, “no suit, either at law 01-in equity shall be maintainable in any court,” &c.; Ripley v. Morris, 2 Gilman 381, where it was held that “a writ of error like a scirc facias is considered a new action," and it was, therefore, ruled that a writ of error would be dismissed for failure to file a bond for costs under a statute requiring a bond in all cases in “law 01-equity” by non-residents; and 6 Am,. & Eng. Ency. of Law, p. 812, where it is stated that “a writ of error is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of anything- which is withheld from him; and it is considered a new action and not the continuation of one already commenced.” Not only does a reference to the authorities cited show-clearly that the court meant exactly what it said in that case, but it was absolutely necessary to decide whether a writ of error was a continuation of the original suit or not, in order to determine the question then before the court, which was whether a writ of error allowed but not actually sued out,’ was pending in this court so that it could be dismissed. Also in Glasser, Kuder & Ottensoser v. Hackett, supra, it was held that one writ of error might be pleaded in abatement of another, which certainly would not be admissible if the writ of error be not in the nature of a new action. In Weiskoph v. Dibble, 18 Fla. 22, it was held that the writ was a new suit or *68action; that questions as to the sufficiency of process therein were controlled to a great extent by the rules prevailing in original actions; that the scire facias ad audiendum errores performed the same function as the summons ad respondendum in ordinary actions, and that the scire facias was process within the meaning of that clause of the Constitution providing that the “style” of all process shall be “The State of Florida.” By this decision greater dignity is given to a scire facias than to a summons in an original action under our former code; for, as to the latter, it was held in Gilmer v. Bird, 15 Fla. 410, not to be “process,” within the meaning of the Constitution. The distinction lay perhaps in the fact that the summons under 'the code did not issue from a court, but by plaintiff’s attorney; while under the statute a scire facias issued from the court. I táke it that it is definitely settled in this State that a writ of error is either a new suit, or in the nature of such, or at any rate not a continuation of the original suit, and I am unwilling to overrule these decisions in- order to sustain proceedings in this court upon constructive service in personal action. The writ of error and the scire facias were both writs of this court, and not of the lower court. Even though in fact issued by the clerk of the lower court, he acts in that matter as a clerk of this court. First National Bank v. King, 36 Fla. 25, 18 South. Rep. 1. The act of 1897 does not change the language, character or function of the writ of error, or of any proceeding therein. It does not make the proceeding in this court a continuation of the original suit any more than it was before, nor does it make the isuance of'the writ an act of the trial court or a step in the cause in that court. It does not purport to declare that the proceeding by writ of error is so essentially changed that notice is no longer necessary; indeed, its whole scope *69shows that the Legislature still regarded notice as being essential-to the-jurisdiction of this court, and its only-object was to authorize constructive service of such notice. It does not make the writ of, error notice in itself; it simply abolishes the writ of scire facias, and substitutes in the place of an executed scire facias the record of the writ of error. Now it is .certain that at common law a writ of error was so essentially original in its character that unless the defendant in error voluntarily appeared, the court of error acquired no. jurisdiction over his person to adjudicate the cause until a scire facias was issued and served, or in some instances until two successive writs were issued and returned unserved. In other words, the proceeding was so essentially original that the appellate court could not entertain jurisdiction without personal service, or at least without the positive evidence of two unsuccessful efforts to make such service. Had the Legislature undertaken to make appellate proceedings by writ of error a step in the original cause, or a continuation thereof, then a different question would arise under this statute; but they have not done that. They have left the writ precisely as it was at-common law, and as it was before the act was passed. If, under these circumstances, the Legislature has power to abolish notice, or substitute the lowest grade of .constructive for personal notice, and yet leave the action the same, why can not the Legislature abolish the summons ad respondendum, and substitute a record of the praecipe as notice in personal suits ? Our Constitution must be construed in the light of the common law. It was intended to perpetuate certain fundamental rights and principles recognized by the common law, and to forbid certain abuses that had crept into the administration of that law, or to guard against a repetition of excessive powers of government which past experience demonstrated *70needed a chéck. Not only did the common law require personal notice of a writ of error where it could be obtained, but the uniform practice in this State for at least seventy years has been to give personal notice whenever it was practicable to do so. Section 9, act approved November 12, 1828; section 9, act approved February 10, 1832; section 1274, Revised Statutes.
I do not think the cases cited in the opinion of the court sustain the constitutionality of the act. I believe the true rule regarding constructive service of the notice of a writ of error, is clearly set forth and defined in the case of Nations v. Johnson, 24 How. 195, in which Mr. Justice Clifford says: "The question here is, whether a party duty served with notice in a subordinate court, after he has appeared and answered to the suit and secured an erroneous judgment in his favor, may voluntarily absent himself from the jurisdiction of the appellate tribunal so as to render it impossible to give him personal notice of an 'appeal, and stil! have a right to complain that the notice was served by publication, pursuant to the law of the jurisdiction from which he has thus voluntarily withdrawn. We think not.” We says further, “Actual notice ought to be given in all cases where it is practicable, even in appellate tribunals,. but whenever personal service has been rendered impossible by the removal of the appellee or defendant in error from the jurisdiction, service by publication is sufficient to give the appellate tribunal jurisdiction of the subject and the person, provided, it appears in the record that personal notice was given in the subordinate-court, and that the party there appeared and litigated the merits of the controversy.” The case of Fitzsimmons v. Johnson, 90 Tenn. 416, 17 S. W. Rep. 100, also related to constructive notice of a writ of error on a non-resident — one who could not be personalty served. *71The case of Delano v. Jopling, 1 Litt. (Ky.) 117, involved the validity of a judgment obtained against one who was special bail for another upon two successive writs of scire facias returned unexecuted, and the judgment was sustained because the proceeding in which it was rendered was in strict pursuance of the common law, which permitted judgment upon such return. The case of Elsasser v. Haines, 52 N. J. L. 10, 18 Atl. Rep. 1095, involved the validity of a judgment founded on a recognizance entered in court, on return of two successive writs of scire facias, “nihil habet,” and the judgment was sustained because the proceeding was shown to have been strictly conformable to the common law. This class of proceedings is recognized in Barrow v. Bailey, 5 Fla. 9, where it is said (page 18) that the common law rule allowing the relief sought by a scire facias upon two returns ‘'nihil” would seem to speak a reproach upon that system of law which claims to be founded upon reason and natural justice, were it not for the fact that the defendant was not absolutely concluded but could have an audita querela, and thereby present his defense, or he might frequently be relieved on motion. The case of Adams v. Rowe, 11 Me. 89, S. C. 25 Am. Dec. 266, involved the validity of a judgment rendered upon constructive service of a scire facias issued upon' default against one served with trustee process; the party against whom the judgment was rendered having removed from the State at the time the scire facias was issued. The acts of 1832 and 1833 cited by the court, applied only to persons who were not accessible to personal service, and there can not be found at common 'law or in this State, a single decision or statute intimating that constructive service of a scire facias in error as against persons accessible to personal service would suffice to give an appellate court jurisdiction. The val*72idity of Rule 25 adopted by this court in 1873 has never been judicially determined by this court. It embraces but few cases, and for this reason, perhaps, has never been'questioned. It relates to the making of new parties in this court in causes already pending here where the court has previously by its proper original process acquired jurisdiction of the subject matter and the original parties. It may, therefore, be valid. But whether valid or not, I do not think it becomes a precedent whereby we should sustain an act of the Legislature providing for unconstitutional service of our original process. The other cases cited by the court do not touch the question of notice in appellate proceedings, but simply sustain the proposition that the writ of error is not an absolutely original proceeding-. In none of these cases did the court undertake to say that as ag-ainst residents capable of being personalty served, constructive service could give jurisdiction, except in those cases where personal service was not required at common law, nor have I been able to ñnd a single case where any court has held that constructive notice of a writ of error can be given in any case where personal service is practicable, nor that such notice can be entirety dispensed with at the will of the Legislature. The only countenance to such a theory is found in the language of Justice Field, in Pennoyer v. Neff, 95 U. S. 714, text 734, which lays down the broad proposition that notice of appellate proceedings may be either personal or constructive, at the will of the Legislature. In that case, however, this question was not involved; he states the proposition as an exception to a general rule declared in the main case, and he cites the case before alluded to in 24 Howard as sustaining- that proposition which, as I have pointed out, expressly declares that *73personal notice should be given where practicable in appellate proceedings.
I had hoped that the act under consideration would relieve us from many technical questions of practice arising under the old form of obtaining jurisdiction in error, but I see many difficulties ahead of us in enforcing the new act, which it is unnecessary to mention at this time. I believe that under our present rules, which require notices to be served upon the opposite party at various stages in the progress of submitting the case in this court, all parties or their attorneys would have actual notice of the pendency of the writ of error; but the notices required by these rules were never intended to supply the place of original process whereby to acquire jurisdiction of the person, and these rules are subject to repeal by this court at its pleasure. I am unwilling to affirm the constitutionality of an act of the Legislature which can be upheld only in connection with the rules of a court which it can abrogate at any time.
It seems to me that if the act of 1897 does not exhibit a departure from due process of law, it is hard to conceive of one that can. The writ of error was of such a character, whether original or not, that no court of error could at common law, as it existed for ages, acquire jurisdiction over the defendant therein without service upon him of an original process, if he could be found. This was the recognized due process of law by which to acquire jurisdiction. This was also the law of this State by express statute for seventy years. It seems to me that if proceedings in error were merely the continuation of a pending suit, the writ itself being a step in the cause, the astute lawyers of the common law, and those of our own country, would long since have found it out, and insisted upon the repeal of a useless and oftentimes difficult and expensive ceremony of giving notice *74of such writs. The fact that they have not done so and that the courts have uniformly held that service of notice was jurisdictional,, is persuasive evidence to my mind that the proceeding is in the nature of a new action, so as to require personal notice where practicable.
In my opinion Chapter 4529, acts of 1897, is unconstitutional and void.