Argument for Defendants in Error. The proclamation of general amnesty and pardon issued on the 25th day of December, 1868, referred to in the last article of the statement of facts, is found in volume 15, pp. 711, 712, of the Statutes at Large. After referring to several previous proclamations, it proceeds as follows, to wit: "And whereas, the authority of the Federal government having been reëstablished in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that a universal amnesty and pardon for participation in said rebellion extended to all who have borne any part therein will tend to secure permanent peace, order and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the national government, designed by its patriotic founders for the general good:-now, therefore, be it known that I, Andrew Johnson, President of the United States, by virtue of the power and authority in me vested by the Constitution, and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally, and without reservation, to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges and immunities under the Constitution and the laws which have been made in pursuance thereof.” Mr. Girault Farrar and Mr. Thomas J. Semmes for plaintiffs in error. Mr. James Fentress was with them on their brief. Mr. Edgar H. Farrar (with whom was Mr. Ernest B. Kruttschnitt on the brief) for defendants in error. The whole argument of the plaintiffs in error is a covert attack upon the settled jurisprudence of this court, as declared VOL. CXXXIII-7 Argument for Defendants in Error. in Wallach v. Van Riswick, 92 U. S. 202; Chaffraix v. Shiff, 92 U. S. 214; Semmes v. United States, 91 U. S. 21; Pike v. Wassell, 94 U. S. 711; Wade v. French, 102 U. S. 132; Avegno v. Schmidt, 113 U. S. 293; and Shields v. Shiff, 124 U. S. 351. There is a labored attempt made to establish a discrepancy between the doctrine of Avegno v. Schmidt and Shields v. Shiff, and the doctrine of Wallach v. Van Riswick, Pike v. Wassell, and French v. Wade, and to draw a distinction between these latter cases and the case at bar. It is insisted that this court in Avegno v. Schmidt has held that the confiscation proceedings left the fee of the property in the confiscatee, or retained it in the United States; consequently, that the pardon of the offender restored him the fee if it remained in him after the confiscation proceeding, or restored it to him if it remained in the United States. A mere inspection of these two opinions shows that this claim is unfounded. If this court has decided anything without variance, it has decided that the confiscation proceedings absolutely divested every right, title and interest which the confiscatee had in the property; that it entirely separated his estate from that of his heirs, and that it entirely paralyzed his power over the property during his life, either to affect it by deed or to devise it by will. In all of those cases the court has refused, and found it unnecessary, to decide where the fee was after the confiscation. The common law doctrine that the fee cannot be in abeyance, it has positively declared not applicable to the case and not material to determine, and that whatever may have been the common law doctrine, that doctrine must yield to the statute. In answer to the suggested difficulty that if the ancestor was not seized of the property at his death the heir could not take it, the court has declared that it was not necessary either at common law, or under this statute, that the ancestor should be seized in order that the heir might take by inheritance. In answer to the plea that the pardon and the amnesty proclamation had restored to the confiscatee the power to dispose Opinion of the Court. of the property and to bind his heirs by warranty deeds, the court has declared, from the above principles, that the pardon could not give back the property which had been sold, nor any interest in it, either in possession or expectancy. The whole argument on the other side may be summed up in the statement that the pardon for treason restored the fee, or the right to control the fee, in property seized, condemned and sold as enemy's property under the laws of war. This is the very proposition which the court, for the reasons above given, has denied both in the Wallach and in the Semmes cases. There is no argument or suggestion in the plaintiffs' brief as to how the pardon of the claimants' ancestor for his offences against the government could deprive his heirs of the benefit secured solely to them by the joint resolution of Congress. The confiscation was an accomplished fact, and whatever rights grew out of that fact were already vested when the pardon was granted. There would be as much reason to hold that the pardon divested the title of the purchaser of the estate for the life of the public enemy, who was also a public offender, as to hold that it annulled the effect of the joint resolution and divested the rights thereby secured ultimately to the heirs on the death of their ancestor. He was entirely disseized by the confiscation of the whole estate, and they were authorized to take this whole estate, at his death, as his heirs, by descent, although there was no seizin in him at the time of his death. The pardon may have made him a "new man," but it did not make new facts or destroy vested rights. Knote v. United States, 95 U. S. 149, 153; O8born v. United States, 91 U. S. 474. MR. JUSTICE BRADLEY, after stating the case as above, delivered the opinion of the court. The principal question raised in the present case is, whether, by the effect of the pardon and amnesty granted to A. W. Bosworth by the special pardon of October, 1865, and the general proclamation of amnesty and pardon of December Opinion of the Court. 25th, 1868, 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 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. That the guilty party had no control over it in the absence of such pardon or amnesty, has been frequently decided. Wallach v. Van Riswick, 92 U. S. 202; Chaffraix v. Shiff, 92 U. S. 214; Pike v. Wassell, 94 U. S. 711; French v. Wade, 102 U. S. 132; and see Avegno v. Schmidt, 113 U. S. 293; Shields v. Schiff, 124 U. S. 351. But it has been regarded as a doubtful question, what became of the fee, or ultimate estate, after the confiscation for life. "We are not called upon," said Justice Strong, in Wallach v. Van Riswick, "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." 92 U. S. 212. It has also been suggested that the fee remained in the person whose estate was confiscated; but without any power in him to dispose of or control it. Perhaps 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. Both the common and the civil laws furnish analogies of suspended ownership of estates which may help us to a proper conception of that now under consideration. Blackstone says: "Sometimes the fee may be in abeyance, that is (as the word signifies) in expectation, remembrance and contemplation of law; there being no person in esse in whom it can vest and abide; though the law considers it as always potentially existing, and ready to vest when a proper owner appears. Thus in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John Opinion of the Court. nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est haeres viventis; it remains, therefore, in waiting or abeyance during the life of Richard." 2 Bl. Com. 107. In the civil law, the legal conception is a little different. Pothier says: "The dominion of property (or ownership), the same as all other rights, as well in re as ad rem, necessarily supposes a person in whom the right subsists and to whom it belongs. It need not be a natural person; it may belong to corporations or communities, which have only a civil and intellectual existence or personality. When an owner dies, and no one will accept the succession, this dormant succession (succession jacente) is considered as being a civil person and as the continuation of that of the deceased; and in this fictitious person subsists the dominion or ownership of whatever belonged to the deceased, the same as all other active and passive rights of the deceased; hæreditas jacens persona defuncti locum obtinet." Droit de Domaine de Propriété, Partie I, c. 1, § 15. But, as already intimated, 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 1 Le domaine de propriété, de même que tous les autres droits, tant in re qu' ad rem, suppose nécessairement une personne dans laquelle ce droit subsiste, et à qui il appartienne. Il n'est pas nécessaire que ce soit une personne naturelle, telle que sont les personnes des particuliers, à qui le droit appartienne : ce droit, de même que toutes les autres espèces de droits, peut appartenir à des corps et à des communautés, qui n'ont qu'une personne civile et intellectuelle. Lors qu'un propriétaire étant mort, personne ne veut accepter sa succession, cette succession jacente est considérée comme étant une personne civile, et comme la continuation de celle du défunt; et c'est dans cette personne fictive que subsiste le domaine de propriété de toutes les choses qui appartenaient au défunt, de même que tous les autres droits actifs et passifs du défunt: Hæreditas jacens personæ defuncti locum obtinet. |