Statement of the Case.

of January, 1865, a libel of information was filed against the said property as the property of A. W. Bosworth, in the District Court of the United States for the Eastern District of Louisiana.

"Into these proceedings intervened Mrs. Rachel Matilda Bos worth, wife of said Abel Ware Bosworth, to protect her community interests in said property, and, after due proceedings had, the said court entered a decree of condemnation as to A. W. Bosworth and a decree in favor of Mrs. Rachel Matilda Bosworth, recognizing her as the owner of one-half of said onethird undivided interest in and to said property.

"A venditioni exponas in due form of law issued to the marshal for the sale of said property under said decree, and at said sale "all the right, title and interest of A. W. Bosworth in and to the one undivided third part of said property" (reserving to Mrs. Rachel M. Bosworth her rights therein, as per order of the court) was adjudicated on the - day of the month of May, 1865, to E. W. Burbank for the price and sum of $1700, and the marshal executed a deed in due form of law to said Burbank for the same."

"6th. That on the second day of October, 1865, Andrew Johnson, President of the United States, granted to said A. W. Bosworth a special pardon, a duly certified copy of which, together with the written acceptance by said Bosworth thereof, is hereto annexed, made part of this statement of facts, and marked 'Document A.'

"7th. That on the 23rd day of September, 1871, by act before Andrew Hero, Jr., notary public, the said A. W. Bosworth and Mrs. Rachel Matilda Bosworth, his wife, sold, assigned and transferred to Samuel H. Edgar, with full warranty under the laws of Louisiana, all their right, title and interest in and to the said property, including the one-sixth undivided interest claimed in this suit by the plaintiffs and described in the petition, for the price and sum of eleven thousand six hundred and sixty-six .66 dollars.

"8th. That on the 18th day of December, 1872, the said E. W. Burbank, by act before the same notary, transferred all his right, title and interest in the nature of a quitclaim to

Statement of the Case.

S. H. Edgar aforesaid for the price and sum of five thousand one hundred dollars.

"9th. That the said S. H. Edgar by act executed before Charles Nettleton, a duly authorized commissioner for Louisiana in New York City, on the 10th day of October, 1872, and duly recorded in the office of the register of conveyances for the parish of Orleans on the 30th day of October, 1872, sold and transferred the same property, with full warranty under the laws of Louisiana, unto the New Orleans, Jackson and Great Northern Railroad Company.

"10th. That by various transfers made since said date, as set forth in the answers filed in this suit, the said property has come into the possession of the Chicago, St. Louis and New Orleans Railroad Company, who has leased the same to the Illinois Central Railroad Company, which said company holds said property under said lease.

"14th. It is further agreed as a part of this statement of facts that the President of the United States on the 25th day of December, 1868, issued a general amnesty proclamation, and the terms of said proclamation as found in the Statutes at Large of the United States are made part of this statement of facts."

The following is a copy of the special pardon (Document A), referred to in the statement of facts, and of the written acceptance thereof, to wit:

"Andrew Johnson, President of the United States of Amer ica, to all to whom these presents shall come, greeting:

"Whereas A. W. Bosworth, of New Orleans, Louisiana, by taking part in the late rebellion against the government of the United States, has made himself liable to heavy pains and penalties;

"And whereas the circumstances of his case render him a proper object of executive clemency:

"Now, therefore, be it known that I, Andrew Johnson, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons to me thereunto moving, do hereby grant to the said A. W. Bosworth a

Statement of the Case.

full pardon and amnesty for all offences by him committed, arising from participation, direct or implied, in the said rebellion, conditioned as follows:

"1st. This pardon to be of no effect until the said A. W. Bosworth shall take the oath prescribed in the proclamation of the President, dated May 29th, 1865.

"2nd. To be void and of no effect if the said A. W. Bosworth' shall hereafter at any time acquire any property whatever in slaves or make use of slave labor.

"3rd. That the said A. W. Bosworth first pay all costs which may have accrued in any proceedings instituted or pending against his person or property before the date of the acceptance of this warrant.

"4th. That the said A. W. Bosworth shall not, by virtue of this warrant, claim any property or the proceeds of any property that has been sold by the order, judgment or decree of a court under the confiscation laws of the United States.

"5th. That the said A. W. Bosworth shall notify the Secretary of State, in writing, that he has received and accepted the foregoing pardon.

"In testimony whereof I have hereunto signed my name and caused the seal of the United States to be affixed.

66

Done at the city of Washington this second day of October, A.D. 1865, and of the Independence of the United States the ninetieth.

"ANDREW JOHNSON.

"By the President: WILLIAM H. SEWARD,

“[SEAL]

Secretary of State."

"WASHINGTON, D.C., October 5th, 1865.

"Honorable William H. Seward, Secretary of State.

"SIR: I have the honor to acknowledge the receipt of the President's warrant of pardon, bearing date October 2d, 1865, and hereby signify my acceptance of the same with all the conditions therein specified.

"I am, sir, your obedient servant,

"A. W. BosWORTH."

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