civil. 26. Actions against enemy and debtor property necessarily Since things prosecuted as fictitiously guilty are proceeded against by civil action, though there are offenders behind them, it seems almost unnecessary to show that things are proceeded against, when they are hostile, by civil action. The personal owners, behind such things, are enemies; and, as such, they are not usually susceptible of being arrested for personal trial, nor are they amenable to the jurisdiction of the municipal courts of the belligerent opposed to them. Civil enemies or insurgents cannot be indicted or tried as enemies, though they might be, as criminal citizens. But since property, when proceeded against as enemy property, whether as prize or as property seized upon land; whether as public-enemy property or citizen-enemy property, cannot be indicted and tried, the procedure against it must necessarily be civil. This need not be enlarged upon, by way of confirmation, since the legal reader may be presumed readily to concede the proposition that all proceedings against enemy-property are civil. The doctrine that proceedings against things hostile are all civil, is however, well settled. All naval-prize confiscations are pronounced in civil proceedings; and all confiscations of enemy property seized upon land are also pronounced in civil causes; and so are all judgments enforcing liens. If any apology be needed for devoting a chapter to show that proceedings in rem are always civil in character, it may be found in the fact that there are decisions in which this characteristic has been overlooked; in which it has been held that criminals may be punished by such proceedings-even for treason without being personally arrested, confronted with witnesses, tried and sentenced. Com. 159; 4 Black. Com. 361, 362; 1 Durnford & East, 753; Markle v. Akron, 14 Ohio, 590, 591; Rex v. Mallard, 2 Strange, 828; Ketland v. The Cassius, 2 Dall. 365; Adams v. Woods, 2 Cranch, 336; United States r. The Sally, 2 Cranch, 406; United States. The Betsey and Charlotte, 4 Cranch, 443; United States r. Mann, 1 Gall. 178, 179; United States v. Lyman, 1 Mason, 498; United States v. Bags of Coffee, 8 Cranch, 398; United States v. Brigantine Mars, Id. 417; Gelston v. Hoyt, 3 Wh. 311; United States v. The Palmyra, 12 Wheat, 12, 13; Caldwell v. United States, 8 How. 366, 381; 1 Chitty Pl. 101; Gelston v. Hoyt, 13 Johns. R. 584; 3 Black. Com. 160-162; The State v. Williams, 7 Rob. (La.) 266; Bacon's Ab. verbo “ 'Debt" A.; Gray v. Kimball, 42 Me. 299. § 27. Difference Between the Two Rights. Jus in re is the absolute and exclusive right to a thing, susceptible of being enforced by the actio in rem. Jus ad rem is a relative right resting upon a thing, susceptible of being enforced by the actio in rem. Briefly, the former is the right to property, and the latter a right in property. Such is the legal signification of these terms, though some writers, (owing perhaps to the liability of the prepositions to be misinterpreted in this connection,) have even reversed the meaning of the two. Others have made possession of the res necessary to the existence of the jus in re, which is wholly unwarrantable, since right of proprietorship may be complete while the person holding the right may or may not be in possession of the property. On the other hand, one may be in possession of a thing, yet have only a jus ad rem, susceptible however of becoming a jus in re upon failure to redeem, as when the property is held in pawn or pledge. Marcadé defines the terms with general accuracy, making the jus in re independent and absolute, exercised per se ipsum by applying it to its object, while the jus ad rem is the faculty of demanding and obtaining the performance of some obligation by which another is bound ad aliquid dandum, vel faciendum, vel præstandum. But such obligation must 12 Marcadé, 350. necessarily be susceptible of enforcement directly against some thing, and not merely a personal obligation. The illustration, which he gives, of the creditor's right to collect a thousand dollars of his debtor, is not a good one, since, to constitute the jus ad rem, the right must rest specifically upon some property; for, otherwise, it would only bear personally upon the debtor. Marcadé is also inaccurate when he says that every jus in re may be vindicated by the actio in rem against him who is in possession of the thing; for the right often exists when the law does not authorize the corresponding remedy, as will be shown, further on, in this chapter. Indeed, the illustrations which he gives of one's ownership of a horse, usufruct of a flock of sheep, servitude over land, etc., though applicable to the right, are instances in which the law does not usually afford the remedy of the actio in rem, when it becomes necessary that the right be legally enforced. The right, as illustrated, is susceptible of being so enforced, should legislation so provide; and that is all that is requisite to complete his definition. But he is certainly in error when he speaks of the right being vindicated against him who is in possession of the thing," since ex necessitate rei, the action must be directly against the thing itself. His illustration of jus ad rem the mortgage. is strictly pertinent, as mortgage is understood in the civil law, and wherever it operates as a lien; though foreclosures are usually personal actions with prayer for the sale of the mortgaged property—not actions in rem, idem erga omnes. § 28. Admiralty Illustrations. Every suit to have a vessel declared forfeited for violation of law is to enforce a jus in re: every suit on bottomry or respondentia bonds, or freight contracts, or for repairs or supplies, or by a seaman to enforce his lien for wages directly against the ship on which he earned them, is to enforce a jus ad rem. Every case on the prize side of the court, to confiscate enemy's property, is in vindication of a jus in re: every case to enforce a lien, is in vindication of a jus ad rem. Judge STORY says: "A lien is not in strictness either a just in re, or a jus ad rem; but it is simply a right to possess and retain property until some charge attaching to it is paid or 1 discharged." And again: "A lien is not, strictly speaking, either a jus in re, or a jus ad rem; that is, it is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing. At law, a lien is usually deemed to be a right to possess and retain a thing until some charge upon it is paid and removed." It seems that his reasons as fully prove the right to be a jus ad rem, as that it is not a jus in re. That which is "simply a right to possess and retain property until some charge attaching to it is paid or discharged," can be nothing else than a jus ad rem. A lien, without possession of the thing on which it rests, is also a jus ad rem, as the seaman's lien against a ship. On the other hand, in the absence of "property in the thing itself," it is apparent that there can be no jus in re. Much confusion of ideas has resulted from confounding terms in the expression of these two very different rights; and it is therefore important that the reader should start correctly in the first stage of travel over the extensive ground before him. Such confusion will frequently be encountered in decisions of courts as well as in elementary books. In the case of the Amy Warwick, when before the U. S. District Court for Massachusetts, the judge treated the two rights as follows: "The general doctrine seems to be that where a neutral has a jus in re; where he is in possession with right of retention until a certain amount is paid to him, the captor takes cum onere, and must allow the amount of such right. But where the neutral has merely a jus ad rem, which he cannot enforce without the aid of a court of justice, his claim will not be recognized by a prize court." When that vessel was brought before the United States Supreme Court, on appeal, the jus in re was found to be in the government because of her enemy character, and the lien for freight was an alleged jus ad rem, though not allowable against the hostile res. Had the district judge noted the views expressed in the cases which he cites, he 1 Story's Eq. Jur. 1, § 506; Ib. 2, §§ 1,215, 1,216. The Amy Warwick et al., 2 Black. 636. would have found that neither Lord Stowell nor Mr. Justice Washington had made the mistake of holding the jus in re to be the right resting upon property in possession.3 The lien upon a thing in possession constitutes a jus ad rem exactly as a lien upon a thing not in possession, "which cannot be enforced without the aid of a court of justice." § 29. Errors Noted. The rather common errors, among the elementary common law writers, have been that title to property in possession constitutes the jus in re, and that title to property not in possession constitutes the jus ad rem: errors that have been fully exposed by Marcadé, as above shown; but Judge STORY advances the equally untenable proposition, that when a lien holder has "the right to possess and retain property until some charge attaching to it is paid or discharged," such right is neither a jus in re nor a jus ad rem. Upon a moment's reflection, the reader will perceive that possession of the thing to which, or upon which either right rests, has nothing whatever to do with the right itself; that one's right to a thing may be perfect, though he may have been deprived of the possession; and that one's right to be paid out of a thing may be complete without his having the thing in hand. Of course, such thing must be seized, taken in hand, before the actio in rem can operate; but, ex necessitate, the right must exist before the seizure. True, there are liens, (such as arise from pledge and pawn, for instance,) in which possession is necessary to the existence of such a jus ad rem as is enforcible by the actio in rem, but the possession required cannot convert the right of lien into a jus in re. If, however, the condition of the contract of pledge or pawn be that in case of the happening of a certain event, (such as non-payment at the maturity of a loan,) the pledged or pawned goods shall be forfeited, the right of the pledgee or pawnee becomes a jus in re from the date of the forfeiture, since he acquires the right of ownership. If resort to court should become necessary, in order to vindicate that The Tobago, 5 C. Robinson, 218; The Marianna, 6 Ib. 25; The Francis, 8 Cr. 418. |