Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1876-12-27

tt ms OF Jurisprudence. Wherever one ls as.
sailed 10 his person or his property, there be
may defend, for the liability and the right are
ipseparabIe. This is a principle of natural JUS
,icc, rec X uized as such by the common intelIl-
reuoe and conscience of all %natioUs. A sen
teuce of a court pronounced against a party
without hearing him, or giving him an oppur-
unity to be heard, is not a judicial determlpa-
| ton OF his rights, and is not entitled to respect
iu any other tribunal.
That there must be notice to a party OF some
kind, actual or constructive, to a valid judy.
ment affecting his rights. IS admitted. Until
notice is given the court has no jurisdiction ID
any case 10 proceed to judgment, whatever Its
authority may be, by the law OF its organ'za'
tioo, over the subject matter. But notice Is
ouly lot the purpose of afordiDg the party an
opportunity Of being heard upon the claim or
the charges made; it is a SUMMONS to hun to
appear and speak, if he has anything to say,
why the judgment sought should not be reu-
dcred. Il denial to a party of the benefit OF a
police would be 10 effect to deny that he is en-
titled to notice at all, and the sham and decep
rive proceeding had better be omitted altogcth
er. 1t would De like saying to a party, appear
ADD you shall heard, and when he has appear.
cd, saying your appearance, shall not be recog
liz ID and you shali not be heard. In the pre-
scut case the district court DOT oUly 10 effect
said this, but Immediately added 4 decree oi
condemnation, recltlog that the default OF all
persous had been duly entered. 1t is difficult
to speak Of a decree thus rendered with mode
ration; II was 10 fact a mere arbitrary cdlct,
clothed 10 the form Of a judicial sentence.
The law is and always mas been that wheu-
ever notice or citation IS required the party
cited has the right 10 appear auI BE- heard,
and when the latter is denied the former is 10.
~efectual for any purpose. The denial to IA par
ty 10 such a case Of the right TO appear is in
legal effect there cal OF the citation to him. The
period within which the appearance must be
made and the right to be heard exercised, is,
of course, a matter of regulation, depending
either upon positive law, or the rules or orders
of the court, or the established practice i'll such
cases. Aud if the appearance br not made,
and the right to be heard be DOT exercised
within the period thus prescribed, the default
of the party prosecuted, or possible claimants
of the property, may OF course be entered, aud
the allegations Of the libel be taken as true for
the purpose of the proceeding. But the denial
OF the right to appear aud be heard At Ill Is a
different matter altogether.
The position OF the defendants cnunsal is,
that as the proceeding for the coGfi. cation OF
the property was Que IN rem, the court, by
seizure of the property, acquired jurisdiction to
determine it's liability to forfeiture, and couse.
%uuently had a right to decide all questions
subs. quentIy arising iu the progress Of the
cause, and It's decree, however erroneous, can.
Dot, therefore, BIZ collateral $ assailed. La sup.
posed support of this position opinions OF ;hls
court 10 several cases are cited, where similar
language is used respecting the power OF a
court to pass upon Questions arising after Jurlj,
dic!ion has attached. But the preliminary
proposition of the cou sci is not CORRECT.
The Jurisdiction acquired by the court ~
seizure of the res was not to cnndcmn the
property without further proceedings. The
physical seizure did not of itself establish
the allegations of the liboi, and cIuld noi,
therefore, authorize the immediate fCrIeitur c
of the property seized. y sentence rendered
simply lrJm the fact of seizure would not be a
judicial determination Of the Question of for,
ielture. but a mere arbitrary cutct OF the judi
cial officer. The seizure in a suit IN rem ooiy
brings the property se!zad within the custody
of the court, and informs the owuer of that
fact. The theory of the law is that all prop
erty is 10 the possession Of It's owner 10 pursln
or by agent, and that its seizure will, therefore.
operate to lmpart uotice to hun. Where no,
tlce is thus given the owne: has the right to
appear aud be heard respecting the charges tol
which the forfeiture is CLAIMED. That right
must be recognized aud lis exercise allowed be.
fore the curt can proceed beyond The seizure
TO Judgment. The jurisdiction acquired by !hc
seizure is not to pass upon the question OF Tor
feiture absolutely, but to pass upon that que5
ton after oppor. unity has been afforded 10 III
owner aud parties Interested to appear and be
heard upon the charges. TO this eod some 90
LITIGATION Of the proceedings, beyond that arls'
Jog from the seizure, prescribing the tune
within which the appearance must be made, is
e%ssoatial. Such Motif :atIon is usually given hy
monitiou, public proclamation, or publicatiuu
10 some o Der form. The manner Of the uoti,
fcation is inmaterlal, but the notification itsell
is indispensable.
These views fad cJrr0boratiOu 10 the opinion
Of Mr.. Justice Story 10 the case Of Bradstreet
Us. Ncptuue Insurance Go. lu that case the
actioo was upon a policy of insurance upoD a
vessel, the declaration alleging lis loss By seq.
ure OF the Mexican government. The defend,
ants admitted the seizure, but averrcd that II
was made and that the vessel Was condemned
for violation of the revenue laws oil Mexico,
and to prove the avtrment produce 4 tran
script of the record Of the proceedings of the
Mexican court against the vessel, and Of the
decree Of condemnation. Among the questions
considered by the court was the effect OF that
record as proof OF the laws of Mexico, and Of
the jurisdiction of the court aud the cause OF
seizure aud condemnation. Alter stating that
the sentence Of a foreign court of admiralty
and prize az rem was 10 general conclusive, not
ouIy 10 respect to the parties in Interest, but
also for collateral purposes aod 10 collateral
suits, as to the direct matter Of title and prop
erly 10 judgment. and as to the facts 90 which
the tribunal p~rofesscd to proceed, Mr.. Justice
Story said, that it did not strike him that any
sound distinction could be made between a sen
tence pronounced IN rem by a court of admiral
ty and priz., and a like sentence pronounced
by a muolcipa court upon a seizure or other
proceeding IN rem; that in each the sentence
was conclusive a. to the title aud property, aud
it seemed to him was equally Conclusive as to
the facts on which The sentence p~rotessed to be
founded. But the learned judge added that it
was an essential Ingredient 10 every case, when
such effect wassought to be given to the sentence
that thero ebould hnuo haen nroplr iuiicial nrn.