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decided: May 16, 1892.



Author: Field

[ 145 U.S. Page 552]

 MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

The important questions presented in this case relate to the nature and duration of the estate condemned and sold by the decree of the United States District Court for the Southern District of Ohio in the proceedings taken for the confiscation of the property of Thomas J. Jenkins, under the act of Congress of July 17, 1862, 12 Stat. 589, and to the power of disposition possessed by him over the naked fee or property in reversion, after the termination of the confiscated estate. The questions must find their solution in the interpretation given to the provisions of that act and to the terms of the decree. The act is entitled "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels and for other purposes."

In one of the earlier cases in this court under this act, it was earnestly contended that the act was not passed in the exercise of the war powers of the government, but in the execution of the municipal power of the government to legislate for the punishment of offences against the United States. Such was the contention in Miller v. United States, 11 Wall. 268, 308, 369. The court, however, was of opinion that only the first four sections, which were aimed at individual offenders, were open to that objection; and admitted that they were passed in the exercise of the sovereign, and not the belligerent, rights of the government; but held that in the 5th and following sections another purpose was avowed, not that of punishing treason and rebellion, as described in the title, but the other purpose there described, that of seizing and confiscating the property of rebels. The language of the 5th section is that "to insure the speedy termination of the present rebellion it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits and effects of the persons hereinafter named in this section, and to apply and use the same, and the proceeds thereof, for the support of the army of the United States." And the court, stating that the avowed purpose of the act was not to reach any criminal

[ 145 U.S. Page 553]

     personally, but to insure the speedy termination of the rebellion, which the court had recognized as a civil war, held that this purpose was such as Congress in the situation of the country might constitutionally entertain, and that the provisions made to carry it out, namely, confiscation, were legitimate, unless applied to others than enemies. The act, therefore, in execution of this purpose, provided for judicial proceedings in rem, for the condemnation and sale of the property mentioned, after its seizure, to be brought in any District or Territorial Court of the United States, which should conform as nearly as possible to proceedings in admiralty and revenue cases; and it declared that if the property should be found to have belonged to a person engaged in rebellion, or who had given aid or comfort thereto, the same should be condemned as enemies' property, and become the property of the United States, and might be disposed of as the court should decree, and the proceeds thereof paid into the Treasury of the United States for the purposes stated. After the act embodying this and other provisions had passed both houses of Congress and been presented to President Lincoln for approval, it was ascertained that he was of opinion that in some of its features it was unconstitutional, and that he intended to veto it. His objections were that in several of its clauses the provision of the Constitution concerning forfeitures not extending beyond the life of the offender was disregarded.Art. III, sec. 3. To meet this objection, which had been communicated to members of the House of Representatives, where the bill originated, a joint resolution, explanatory, as ti was termed, of the act -- but which might more properly be designated amendatory of the act and restrictive of its operation -- was passed by the House and sent to the Senate. That body, being informed of the objections of the President, concurred in the joint resolution. It was then sent to the President, and was received by him before the expiration of the ten days allowed him for the consideration of the original bill. He returned the bill and resolution together to the house where they originated, with a message, in which he stated that, considering the act and the resolution explanatory of the act as being substantially one, he approved and signed both. 12 Stat. 589 and 627.

[ 145 U.S. Page 554]

     The joint resolution declares that the provisions of the third clause of the 5th section of the act shall be so construed as not to apply to any act or acts done prior to its passage, "nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life." No decree condemning real property of persons seized under the act, could therefore extend the forfeiture adjudged beyond the life of the offending owner. During his life only could the control, possession, and enjoyment of the real property seized and condemned be appropriated. To that extent the property vested in the United States upon its condemnation and passed to the purchaser to whom the government might afterwards sell it.

What then was the situation of the remainder of the estate of the offending party after the condemnation and sale? The proceedings did not purport to touch any interest in the property or control of it beyond his life. When that ceased, his heirs took the property from him. They could not take anything from the government, for it had nothing; the interest it acquired by the condemnation passed by the sale to the purchaser. The reversionary interest or remainder of the estate must have rested somewhere. It could not have been floating in space without relationship to any one. The logical conclusion would seem to be that it continued in the offending owner. This, we think, follows, not only from the language of the act, but from decisions of this court construing its provisions, though some of the latter contain declarations that its possession is unaccompanied with any power of disposition over the future estate during his life.

In Bigelow v. Forrest, 9 Wall. 339, which came before this court at December term, 1869, it was held that the act of July 17, 1862, and the explanatory resolution of the same date, were to be construed together, and that thus construed all that could be sold by virtue of a decree of condemnation and order of sale under the act was a right to the property seized terminating with the life of the offending person, and that the fact that he owned the estate in fee simple, that the libel was against all his right, title, interest and estate, and

[ 145 U.S. Page 555]

     that the sale and marshal's deed professed to convey as much did not change the result. The District Court, said this court, under the act of Congress, had no power to order a sale which would confer upon the purchaser rights outlasting the life of the party, and had it done so it would have transcended its jurisdiction. This was the unanimous decision of the court.

In Day v. Micou, 18 Wall. 156, before this court at October term, 1873, it was held also by the court unanimously that, under the confiscation act and joint resolution explanatory of it, only the life estate of the person for whose offence the land had been seized was subject to condemnation and sale, and that the fact that the decree may have condemned the fee did not alter the case.

In Wallach v. Van Riswick, 92 U.S. 202, 207, which was before this court at October term, 1875, it was held that after an adjudicated forfeiture and sale of an enemy's land under the confiscation act, and the joint resolution accompanying it, there was not left in him any interest which he could convey by deed. This ruling was not made upon any express provision of the statute. There is no personal disability imposed by its provisions upon the offending party beyond the forfeiture of his estate during his life. It was made by the court, apparently upon what it considered the policy of the confiscation act. The purpose of the act, it said, and its justification, was to strengthen the government, and to enfeeble the public," enemy by taking from his adherents the power to use their property un aid of the hostile cause. "With such a purpose," it added, "it is incredible that Congress, while providing for confiscation of enemy's land, intended to leave in that enemy a vested interest therein, which he might sell and with the proceeds of which he might aid in carrying on the war against the government." In this ruling, the court, in addition to the statutory effect of the decree as a conveyance to the United States of the title to the land for the life of the offending party, made the decree impose upon him a disability or disqualification to hold or transfer an estate which the United States did not acquire or condemn.

Though the ruling in Wallach v. Van Riswick was followed

[ 145 U.S. Page 556]

     in several cases -- in Pike v. Wassell, in 1876, 94 U.S. 711, and in French v. Wade, in 1880, 102 U.S. 132 -- this court subsequently held, in 1884, in Avegno v. Schmidt, 113 U.S. 293, that the heirs at law of a person, whose life interest in real estate was confiscated under the confiscation act of July 17, 1862, took at his death by descent from him and not from the United States under the act, and, in 1887, in Shields v. Schiff, 124 U.S. 351, 355, that the confiscation act of July 17, 1862, construed in connection with the joint resolution of the same date, made no disposition of the confiscated property after the death of the owner, but left it to devolve upon his heirs, and not by donation from the government.

It is not to be overlooked that previous to the decision of the case of Wallach v. Van Riswick a general amnesty and pardon had been proclaimed by the President throughout the land to all who had participated in the rebellion, thus relieving them from the disabilities arising from such participation. Estates and interests in land, present and future, which had not for such participation been previously condemned and sold to others, fell at once under the control and disposition of the original owners, as though the offences alleged against them had never been committed. The pardon and amnesty did not and could not change the actual fact of previous disloyalty, if it existed, but, as said in Carlisle v. United States, 16 Wall. 147, 151, "they forever closed the eyes of the court to the perception of that fact as an element in its judgment, no rights of third parties having intervened." As repeatedly affirmed by this court, pardon and amnesty in legal contemplation not merely release offenders from the punishment prescribed for their offences, but obliterate the offences themselves.

In Illinois Central Railroad Co. v. Bosworth, 133 U.S. 92, 100, 102, 104, 105, which was here at October term, 1889, we have the latest expression of this court upon the subject we have been considering, and also on the effect of pardon and amnesty upon the disabilities imposed upon parties whose life estates had been confiscated under the act of July 17, 1862, and the accompanying joint resolution. That was an action brought by the surviving children of A.W. Bosworth, deceased, to recover possession

[ 145 U.S. Page 557]

     of one undivided sixth part of a tract of land in New Orleans, which formerly belonged to their father. The petition stated that the latter, having taken part in the war of the rebellion, and done acts which made him liable to the penalties of the confiscation act, the said one-sixth part of the land was seized, condemned and sold, under the act, and purchased by one Burbank, in May, 1865; that A.W. Bosworth died in October, 1885; and that the plaintiffs, upon his death, became the owners in fee simple of the said one-sixth part of the property of which the defendant, the Illinois Central Railroad Company, was in possession. The company filed an answer setting up various defences, among others, tracing title to themselves from Bosworth, by virtue of an act of sale executed by him and wife in September, 1871, disposing of all their interest in the premises with full covenants of warranty. They also alleged that Bosworth had, before the act of sale, not only been included in the general amnesty proclamation of the President, issued on the 25th of December, 1868, but had received from him a special pardon on the 2d of October, 1865, and had taken the oath of allegiance and complied with the terms and conditions necessary to be restored to, and reinvested with, the rights, franchises and privileges of citizenship.

The principal question involved in the case was whether, by the effect of the pardon and amnesty granted to A.W. Bosworth, he was restored to the control and power of disposition over the fee simple or naked property in reversion, expectant upon the determination of the confiscated estate in the property in dispute. "The question of the effect of pardon and amnesty," said the court, "on the destination of the remaining estate of the offender, still outstanding after a confiscation of the property during his natural life, has never been settled by this court." In Wallach v. Van Riswick, the court said it "was not called upon to determine where the fee dwells during the continuance of the interest of a purchaser at a confiscation sale, whether in the United States, or in the purchaser subject to be defeated by the death of the offender." It had been also suggested that the fee remained in the person whose estate was confiscated, but without any power in him to dispose

[ 145 U.S. Page 558]

     of or control it."Perhaps," said Mr. Justice Bradley, in speaking for the court, and referring to those different suggestions, "it is not of much consequence which of these theories, if either of them, is the true one; the important point being that the remnant of the estate, whatever its nature, and wherever it went, was never beneficially disposed of, but remained, so to speak, in a state of suspended animation." And again he said, "it is not necessary to be over-curious about the intermediate state in which the disembodied shade of naked ownership may have wandered during the period of its ambiguous existence. It is enough to know that it was neither annihilated, nor confiscated, nor appropriated to any third party. The owner, as a punishment for his offences, was disabled from exercising any acts of ownership over it, and no power to exercise such acts was given to any other person. At his death, if not before, the period of suspension comes to an end, and the estate revives and devolves to his heirs at law." "It would seem to follow," added the learned justice, "as a logical consequence form the decisions in Avegno v. Schmidt and Shields v. Schiff, that after the confiscation of the property the naked fee (or the naked ownership, as denominated in the civil law) subject, for the lifetime of the offender to the interest or usufruct of the purchaser at the confiscation sale, remained in the offender himself; otherwise, how could his heirs take it from him by inheritance? But, by reason of his disability to dispose of, or touch it, or affect it in any manner whatsoever, it remained, as before stated, a mere dead estate, or in a condition of suspended animation.We think that this is, on the whole, the most reasonable view. There is no corruption of blood; the offender can transmit by descent; his heirs take from him by descent; why, then, is it not most rational to conclude that the dormant and suspended fee has continued in him?" And the court held after full consideration that the disabilities which prevented the offending party -- Bosworth -- from exercising power over the suspended fee, or naked property, was removed by the pardon and amnesty, and that he was restored to all his rights, privileges and immunities, as if he had never offended, except as to

[ 145 U.S. Page 559]

     those things which had become vested in other persons; and that, among other things, "he was restored to the control of so much of his property and estate as had not become vested either in the government or in any other person; especially that part or quality of his estate which had never been forfeited, namely, the naked residuary ownership of the property, subject to the usufruct of the purchaser under the confiscation proceedings."

In the confiscation proceedings, under which the property in controversy was condemned and sold, the decree of the United States District Court adjudged, from the proof presented, that Thomas J. Jenkins, the party whose property was proceeded against, was, at the date of its seizure, the owner of the property, which consisted of certain real estate described, and had been since July 17, 1862, and was in the service of the rebels, in arms against the United States, and that his life estate in the said real estate was justly and legally forfeited, and it ordered that such life estate be condemned and sold, and that the necessary process be issued to the marshal to make such sale and bring the proceeds into court. Upon this decree a sale and conveyance were made by the marshal of the life estate of said Jenkins to one Edward Bepler. The only sale and conveyance executed under the decree as thus seen, were of the life estate of Thomas J. Jenkins in the real property in controversy. No condemnation was had or sale made of any other estate in the premises.

In some of the cases, as, for instance, Bigelow v. Forrest, 9 Wall. 339, a condemnation and sale had been made of the property in fee, and it was held to be valid as a condemnation and sale of the life estate of the offending owner; but the reverse is not true. When the lesser estate -- the life estate -- is sold, the sale cannot be held to pass the larger estate -- the fee.

Of the reversion or remainder of the estate of the offending party no disposition was ever made by the government. It must, therefore, be construed to have remained in him, but, under the ruling in Wallach v. Van Riswick, without any power in him to alienate it during his life. That disability

[ 145 U.S. Page 560]

     was in force when he executed, with his wife, the deed of the premises, August 26, 1865. The proclamation of pardon and amnesty was not made by the President until December 25, 1868. This deed, however, was accompanied with a covenant of seizin on his part, and that he would warrant and defend the title against the lawful claims of all persons whomsoever. Admitting that he had no present estate in the premises, and none in expectancy, he was at liberty to add to his deed the ordinary covenants of seizin and warranty, and the same legal operation upon future acquired interests must be given to them as when accompanying conveyances of parties whose property has never been subject to confiscation proceedings. That warranty estopped him and all persons claiming under him from asserting title to the premises against the grantee and his heirs and assigns, or conveying it to any other parties. When, subsequently, the general amnesty and pardon proclamation was issued, the disability, if any, that had previously rested upon him against disposing of the remaining estate, which had not been confiscated, was removed, and he stood, with reference to that estate, precisely as though no confiscation proceedings had ever been had. The amnesty and pardon in removing the disability, if any, resting upon him, respecting that estate, enlarged his estate, the benefit of which enured equally to his grantee. The removal of his disabilities did not affect the purchaser's right under the decree of confiscation. The latter remained in the full enjoyment of the property during the life of the offending party, but he had no claim upon the future estate, nor did the heirs of the offending party have any such claim upon it as to preclude the operation of any previous warranties by him respecting it. Van Rensselaer v. Kearney, 11 How. 297; Irvine v. Irvine, 9 Wall. 617. As the general pardon and amnesty to all persons implicated in the rebellion are not pleaded by the defendant, to relieve the offending party, whose life estate in the premises in controversy was confiscated, from his disabilities respecting the reversionary interest, or naked fee in the premises, it is claimed that no benefit can be derived from them. But this result does not follow from the omission in pleading, for the pardon and amnesty were

[ 145 U.S. Page 561]

     made by a public proclamation of the President, which has the force of public law, and of which all courts and officers must take notice, whether especially called to their attention or not. Jones v. United States, 137 U.S. 202, 212, 215.

Judgment affirmed.


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