Jurisdiction in rem
Encyclopedia
In rem
(Latin
, power about or against "the thing") is a legal term describing the power a court may exercise over property (either real
or personal
) or a "status" against a person over whom the court does not have "in personam jurisdiction". Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property (quasi in rem jurisdiction).
, jurisdiction in rem typically refers to the power a federal court may exercise over large items of immoveable property, or real property, located within the court's jurisdiction. The most frequent circumstance in which this occurs in the Anglo-American legal system is when a suit is brought in admiralty law
against a vessel to satisfy debts arising from the operation or use of the vessel.
Within the American state court systems, jurisdiction in rem may refer to the power the state court may exercise over real property or personal property or a person's marital status
. State courts have the power to determine legal ownership of any real or personal property within the state's boundaries.
A right in rem or a judgment in rem binds the world as opposed to rights and judgments inter partes
which only bind those involved in their creation.
Originally, the notion of in rem jurisdiction arose in situations in which property was identified but the owner was unknown. Courts fell into the practice of styling a case not as "John Doe, Unknown owner of (Property)", but as just "Ex Parte (property)" or perhaps the awkward "State v. (Property)", usually followed by a notice by publication seeking claimants to title to the property; see examples below. This last style is awkward because in law, only a person may be a party to a judicial proceeding – hence the more common in personam
style – and a non-person would at least have to have a guardian appointed to represent its interests, or the interests of the unknown owner.
The use of this kind of jurisdiction in asset forfeiture
cases is troublesome because it has been increasingly used in situations where the party in possession is known, which by historical common law standards would make him the presumptive owner, and yet the prosecution and court presumes he is not the owner and proceeds accordingly. This kind of process has been used to seize large sums of cash from persons who are presumed to have obtained the money unlawfully because of the large amount, often in situations where the person could prove he was in lawful possession of it, but was forced to spend more on legal fees to do so than the amount of money forfeited.
and security interests in property."
In rem
In rem is Latin for "against a thing." In a lawsuit, an action in rem is directed towards a piece of property rather than against a person . The action disputes or seeks to transfer title to property. When title to real estate In rem is Latin for "against a thing." In a lawsuit, an action in rem...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
, power about or against "the thing") is a legal term describing the power a court may exercise over property (either real
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
or personal
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
) or a "status" against a person over whom the court does not have "in personam jurisdiction". Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property (quasi in rem jurisdiction).
United States
Within the U.S. federal court systemUnited States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, jurisdiction in rem typically refers to the power a federal court may exercise over large items of immoveable property, or real property, located within the court's jurisdiction. The most frequent circumstance in which this occurs in the Anglo-American legal system is when a suit is brought in admiralty law
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
against a vessel to satisfy debts arising from the operation or use of the vessel.
Within the American state court systems, jurisdiction in rem may refer to the power the state court may exercise over real property or personal property or a person's marital status
Marital status
A person's marital status indicates whether the person is married. Questions about marital status appear on many polls and forms, including censuses and credit card applications.In the simplest sense, the only possible answers are "single" or "married"...
. State courts have the power to determine legal ownership of any real or personal property within the state's boundaries.
A right in rem or a judgment in rem binds the world as opposed to rights and judgments inter partes
Inter partes
The term inter partes is the Latin for "between the parties." It can be distinguished from in rem, referring to a legal action whose jurisdiction is based the control of property, or ex parte referring to a legal action that is by a single party....
which only bind those involved in their creation.
Originally, the notion of in rem jurisdiction arose in situations in which property was identified but the owner was unknown. Courts fell into the practice of styling a case not as "John Doe, Unknown owner of (Property)", but as just "Ex Parte (property)" or perhaps the awkward "State v. (Property)", usually followed by a notice by publication seeking claimants to title to the property; see examples below. This last style is awkward because in law, only a person may be a party to a judicial proceeding – hence the more common in personam
In personam
In personam is a Latin phrase meaning "directed toward a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called...
style – and a non-person would at least have to have a guardian appointed to represent its interests, or the interests of the unknown owner.
The use of this kind of jurisdiction in asset forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
cases is troublesome because it has been increasingly used in situations where the party in possession is known, which by historical common law standards would make him the presumptive owner, and yet the prosecution and court presumes he is not the owner and proceeds accordingly. This kind of process has been used to seize large sums of cash from persons who are presumed to have obtained the money unlawfully because of the large amount, often in situations where the person could prove he was in lawful possession of it, but was forced to spend more on legal fees to do so than the amount of money forfeited.
Examples
Some examples of in rem cases:- U. S. v. 422 Casks of Wine (1828), an early 19th century example
- United States v. Forty Barrels and Twenty Kegs of Coca-ColaUnited States v. Forty Barrels and Twenty Kegs of Coca-ColaUnited States v. Forty Barrels and Twenty Kegs of Coca-Cola, , was a federal suit under which the government unsuccessfully attempted to force the Coca-Cola company to remove caffeine from its product.-Claim:...
(1916), brought under the Pure Food and Drug ActPure Food and Drug ActThe Pure Food and Drug Act of June 30, 1906, is a United States federal law that provided federal inspection of meat products and forbade the manufacture, sale, or transportation of adulterated food products and poisonous patent medicines...
(1906) against, not The Coca Cola Company itself, but rather "Forty Barrels and Twenty Kegs of Coca-Cola". - United States v. Ninety-Five Barrels Alleged Apple Cider VinegarUnited States v. Ninety-Five Barrels Alleged Apple Cider VinegarUnited States v. Ninety-Five Barrels Alleged Apple Cider Vinegar, 265 U.S. 438 , was a case in which the Supreme Court of the United States held that apple cider vinegar is mislabeled when that vinegar is made from dried apples. The label at issue indicated that the vinegar was made from "selected"...
— Early Food and Drug AdministrationFood and Drug AdministrationThe Food and Drug Administration is an agency of the United States Department of Health and Human Services, one of the United States federal executive departments...
case. - United States v. One Ford Coupe Automobile (1926)
- United States v. One Package of Japanese PessariesUnited States v. One Package of Japanese PessariesUnited States v. One Package of Japanese Pessaries, 86 F.2d 737 , was an in rem United States Court of Appeals case in the Second Circuit involving birth control.-Background:...
, 86 F.2d 737 (2nd Cir. 1936), a case involving contraceptives Margaret SangerMargaret SangerMargaret Higgins Sanger was an American sex educator, nurse, and birth control activist. Sanger coined the term birth control, opened the first birth control clinic in the United States, and established Planned Parenthood...
attempted to import, heard by the Second CircuitUnited States Court of Appeals for the Second CircuitThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
. - United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat's Shoo-Fly Powders for Drunkenness, 40 F.Supp. 208 (W.D.N.Y. 1941)
- United States v. One Book Called UlyssesUnited States v. One Book Called UlyssesUnited States v. One Book Called Ulysses was a 1933 case in the United States District Court for the Southern District of New York dealing with freedom of expression. At issue was whether James Joyce's novel Ulysses was obscene. In deciding it was not, Judge John M...
, the landmark 1933 ruling by John M. WoolseyJohn M. WoolseyJohn Munro Woolsey was a United States federal judge in New York City.Born in Aiken, South Carolina, Woolsey attended Phillips Academy, and received an A.B. from Yale University in 1898. He was awarded an LL.B. from Columbia Law School in 1901, where he was a founder of the Columbia Law Review...
that James JoyceJames JoyceJames Augustine Aloysius Joyce was an Irish novelist and poet, considered to be one of the most influential writers in the modernist avant-garde of the early 20th century...
's novel had sufficient literary merit to overcome its obscene portions. Upheld on appeal as United States v. One Book Entitled Ulysses by James Joyce. - Marcus v. Search WarrantMarcus v. Search WarrantMarcus v. Search Warrant, , full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials...
, full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri. An unusual in rem case heard by the Supreme Court where the named object was not the seized property but the warrant under which it was seized. Since all the government agents involved were indisputably acting within the law as it stood, the only way for the petitioner to challenge the constitutionality of the seizure was to name the search warrant itself as defendant. - Quantity of Books v. KansasQuantity of Books v. KansasQuantity of Books v. Kansas, is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material...
, 1964 U.S. Supreme Court case holding seizure of allegedly obscene materials unconstitutional without prior hearing to determine obscenity. - One 1958 Plymouth Sedan v. PennsylvaniaOne 1958 Plymouth Sedan v. PennsylvaniaOne 1958 Plymouth Sedan v. Pennsylvania was a Supreme Court of the United States case handed down in 1965. The Court ruled that civil forfeiture could not apply where the evidence used to invoke the forfeiture was obtained illegally....
, , case in which the U.S. Supreme Court held that the exclusionary ruleExclusionary ruleThe exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
prevents the forfeiture of material seized in cases where the Fourth AmendmentFourth Amendment to the United States ConstitutionThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
was violated. - Memoirs v. Massachusetts, case involving Fanny HillFanny HillMemoirs of a Woman of Pleasure is an erotic novel by John Cleland first published in England in 1748...
, heard by the U.S. Supreme Court in 1966 (full title: A Book Named "John Cleland's Memoirs of a Woman of Pleasure", et al. v. Attorney General of Massachusetts) - United States v. Thirty-seven PhotographsUnited States v. Thirty-seven PhotographsUnited States v. Thirty-seven Photographs, , is a 1971 United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material...
, an obscenity forfeiture case heard by the U.S. Supreme Court in 1971. - United States v. 12 200-ft. Reels of FilmUnited States v. 12 200-ft. Reels of FilmUnited States v. 12 200-ft. Reels of Film, , is an in rem case decided by the Supreme Court in 1973. It considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, already held to be protected...
, a case very similar to the above heard by the Supreme Court two years later. - People v. Property Listed in Exhibit One (1991)
- R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, R.M.S. Titanic 286 F.3d 194 (2nd Circ., 2002) – here distinguishing between plaintiff (company) and object, of the same name; in full the case also named persons as defendants, and identifies the object more precisely as:
- The Wrecked and Abandoned Vessel, its engines, tackle apparel, appurtenanceAppurtenanceAppurtenances is a term for what belongs to and goes with something else, with the appurtenance being less significant than what it belongs to. The word ultimately derives from Latin appertinere, "to appertain"....
s, cargo, etc., located within one (1) nautical mile of a point located at 41° 43′ 32″ North Latitude and 49° 56′ 49″ West Longitude, believed to be the R.M.S. Titanic, in rem;
- The Wrecked and Abandoned Vessel, its engines, tackle apparel, appurtenance
- United States v. $124,700 in U.S. Currency (2006), an asset forfeitureAsset forfeitureAsset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
case based on drug law
China
According to Jianfu Chen, "officially, the drafting of the 2007 Law of Rights in rem started in 1993, . . . [but] rights in rem have always been part of the effort to draft a civil code in the PRC." "Rights in rem are defined to mean the rights by the right-holder to directly and exclusively control specific things (property); it includes ownership rights, usufructUsufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
and security interests in property."