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proceedings took place. It is equally attained if we suppose that the fee was in nubibus, or that it devolved to the Government for the benefit of whom it might concern. We are not trammeled by any technical rule of the common or the civil law on the subject. The statute, and the inferences derivable therefrom, make the law that controls it. Regarding the substance of things, and not their form, the truth is simply this: A portion of the estate, limited in time, was forfeited. The residue, expectant upon the expiration of that time, remained untouched, undisposed of; out of the owner's power and control, it is true, but not subject to any other person's power or control. It was somewhere, or possibly nowhere. But if it had not an actual, it had a potential existence, ready to devolve to the heirs of the owner upon his death, or to be revived by any other cause that should call it into renewed vitality or enjoyment. The removal of the guilty party's disabilities, restoration of all his rights, powers and privileges, not absolutely lost or vested in another, was such a cause. Those disabilities were all that stood in the way of his control and disposition of the naked ownership of the property. Being removed, it necessarily follows that he was restored to that control and power of disposition.

It follows, from these views, that the act of sale executed by A. W. Bosworth and his wife in September, 1871, was effectual to transfer and convey the property in dispute, and that the judgment of the Circuit Court in favor of the plaintiffs below (the defendants in error) was erroneous. That judgment is therefore reversed and the cause remanded, with instructions to enter judgment for the defendants below, the now plaintiffs in error.

BLATCHFORD, J., did not sit in this case, or take any part in its decision.

The statement of facts in the opinion shows that the proceedings against A. W. Bosworth's property were civil proceedings, in rem, against it as enemy property under the Act of July 17, 1862 (12 Stat. at Large 589). The opinion, however, treats them as criminal proceedings, in personam, against Bosworth

himself (father of the defendants in error), for the crime of treason or rebellion; repeatedly speaks of him as an "offender," and of the civil confiscation as a "punishment;" and it concludes that the personal pardon of the condemned offender operates the restoration to him of the fee simple of his real

estate from whatever effect the actio in rem had had upon it.

In Bigelow v. Forrest (1870), 9 Wall. (76 U. S.) 339, proceedings in rem, under the act, were first treated as in personam; the civil action against enemy property, as a criminal one to punish for treason; and it was held that the children of French Forrest could recover after his death, because “the punishment inflicted upon him, is not to descend to his children;" because "the forfeiture of the land of the offender was * * * without any corruption of his heritable blood," etc.

McVeigh v. United States (1871), II Wall. (78 U. S.) 259, is the next important case, growing out of a confiscation proceeding in rem, in which the Supreme Court took a similar view of the condemnation of enemy property under the act. They treated the proceedings as though they had been a personal criminal trial of McVeigh himself, and discussed his "criminality," "guilt," "offenses," etc., though he had not been indicted, arrested, or tried in that civil case against his property as enemy property, which the act authorized.

In Miller v. United States (1871), 11 Wall. (78 U.S.) 292, the Supreme Court took the opposite view of proceedings under the act. They held that, though the first four sections of the statute related to personal criminal proceedings for treason, the second four, under which the confiscation was decreed, were confined to civil proceedings in rem, against enemy property only, under the law of nations. The rces was personal property, in the proceedings which the Court was reviewing; but in the closely following case of Tyler v. Defrees (1871), 11 Wall. (78 U. S.) 331, which was concerning land as the res, the Court took the same view, and said of the Confiscation Act of 1862, which it was expounding, that it was "designed to introduce the principle of confiscating

enemy property, seized on land, like that seized on water." And further: The Constitution imposes" no restriction upon the power to prosecute war, or confiscate enemy's property." Mr. Justice FIELD (with whom CLIFFORD and DAVIS, JJ., then concurred, though the last assented to the judgment in the Tyler case) dissented in both these cases, and contended that the proceeding was personal, criminal and unconstitutional, because it was not preceded by indictment and arrest. The majority of the court, basing the proceedings on the confiscation sections of the act only, left the joint resolution, explanatory, out of consideration, since that was expressly confined to "forfeiture" as a “punishment" of the "offender," confining it to his "natural life" in nearly the same terms used in the Constitution relative to personal trials for the crime of treason.

Brown v. Kennedy (1873), 15 Wall. (82 U.S.) 591, is substantially in accord with the two foregoing decisions, and there was no dissent, except that of FIELD, J.

In the next case, Day v. Micou (1874), 18 Wall. (85 U.S.) 160, which involved the confiscation case of U. S. v. Two Squares of Ground [in the U. S. District Court at New Orleans, where certain land of Judah P. Benjamin was condemned], the Court discussed the question, "What was the res?” in that proceeding, and held that the fee of the land had not been condemned, and allowed a mortgagee, who had been defaulted for non-appearance in that proceeding, to foreclose after condemnation. The answer of the Court to its own question, deduced from the decision, was that the land, minus the lien upon it, was the res.

The next cases, U. S. v. Slidell's Land, and U. S. v. Conrad's Lots, called by the reporter, "The Confiscation Cases" (1874), 20 Wall. (87 U. S.) 92-117, were against the theory that the pro

ceedings under the act were personal and criminal. The Court held, in these, that "the liability of property" was the only subject of inquiry; that "no judg ment was possible against any person;" that "the enactment of Congress was that the property belonging to any one embraced within several classes of persons, should be subject to seizure and condemnation;" that "persons were referred to only to identify the property;" that "reference to ownership was the mode selected for designating that which was made liable to confiscation;" that "everything necessary to a common law [sic] proceeding in rem, is found in the record;" that it was not necessary "to conclude against the statute" because that form is "inapplicable to civil pro. ceedings."

There was nothing in these decisions in accord with Ilt. Cent. R. R. Co. v. Bosworth-nothing favoring the doctrine that the proceedings in rem were in personam, and nothing in common with Day v. Micou (1874), 18 Wall. (85 U. S.) 160, except the dictum that intervention should not have been allowed, the Supreme Court overlooking, for the moment, that just such interventions were expressly authorized by statute. (U.S. Rev. Stat., 5322; Act of March 3, 1863, 12 Stat. 762.)

As to the question of the fee, the Court said that by the decree of confiscation, "the United States succeeded to the position of Slidell, whatever that was; that is, if he had held the fee before the confiscation (which he had), the United States held it afterwards. And in the very next confiscation case, Semmes v. United States (1875), 91 U. S. 21, the Court said: Properties condemned as forfeited to the United States, under the aforesaid Act of Congress [that of July 17, 1862, under which all the cases were brought, as well as the one under review], become the property of the United States from the date of the VOL. XXXVIII.—9


decree of condemnation: 12 Stat. 591, Sec. 7. Judgment of forieiture was rendered in this case on the 5th of April, 1865, and the land in question became, from that date, the property of the United States; *** the title to the land was lost to him [Semmes] when it became vested in the United States. ** Beyond doubt, the original decree of the District Court was complete and correct. *** Such proceedings, under the Confiscation Act in question, are justified as an exercise of belligerent rights against a public enemy, and are not, in their nature, a punishment for treason. Consequently, confiscation being a proceeding distinct from, and independent of, the treasonable guilt of the owner of the confiscated property, pardon for treason will not restore rights to property previously condemned and sold in the exercise of belligerent rights, as against a purchaser in good faith and for value." The Supreme Court were unanimous in this decision, and these quoted utterances, and the cases of Miller v. U. S. and The Confiscation Cases, supra, were cited and relied upon. Respecting intervention, they said the intervener "would have been remediless had he not reconvened."

But Osborn v. United States (1875), 91 U. S. 474, on the subject of pardon, antagonizes the case of Semmes, though both are in the same volume. Admitting that "the confiscation law of 1862 is construed to apply only to public enemies," the Court said, in close proximity (though not in close logical connection), that Osborn's pardon covered "the offenses for which the forfeiture of his property was decreed." (p. 477.) * * * "The pardon of that offense necessarily carried with it the release of the penalty attached to its commission. It is of the very essence of a pardon that it releases the offender om the consequence of his offense." And there are other like expressions.

(Opinion by

FIELD, J) How could one be constitutionally convicted and punished without information or indictment, personal arrest, trial by jury, etc., as he had contended could not be done, when dissenting in the Miller and Tyler cases, supra?


Next comes Wallach v. Van Riswick (1875), 92 U. S. 202, in which it was held that all the "estate and property" of Wallach was condemned as " enemy property," nothing was left in him. is incredible that Congress, while providing for the confiscation of an enemy's land, intended to leave in that enemy a vested interest therein, etc. The description [in the act] of property thus made liable to seizure, is as broad as possible. It covers the estate of the owner, all his estate or ownership. No authority is given to seize less than the whole." And the Court quote from the act, that the property seized "shall be condemned as enemies' property and become the property of the United States," adding: "Nothing can be plainer than that condemnation and sale of the identical property seized, was intended by Congress, and it was expressly declared that the seizure ordered should be of all the estate and property of the persons designated in the act."

This case was much like the one under review. Van Riswick had acquired the title of Wallach, as well as that of the United States-just as the plaintiffs in error, in the present case, have done. But the Court held that Wallach had nothing to convey, and that his "heirs" could take (by inheritance?) after his death, notwithstanding his deed to Van Riswick. For, though holding, on the one hand, that the confiscation proceedings were civil, in rem, against enemy property, not any person, the Court held, on the other, that the Joint Resolution Explanatory was applicable to the proceedings as criminal, in personam, against Wallach himself and

not against his property. As to the fee, they now expressly declined to say whether it had been in the United States or the purchaser, after confiscation. Therefore, between the dates of decree and sale, it must have been in the United States, according to this deliverance. Nothing was said about its possibly being in abeyance, or in nubibus, as in the present case. But the Court certainly held, in the Wallach case, that the fee was out of him, by the confiscation. That case was briefly re-affirmed in Chaffraix v. Shiff (1875), 92 U. S.


Passing Windsor v. McVeigh (1876), 93 U. S. 274, and Gregory v. McVeigh (1876), Id. 284, which followed the criminal theory, and held (contrary to established international law), that an enemy has judicial standing in a court while yet fighting to destroy it, we come to Pike v. Wassel (1876), 94 U. S. 711, confessedly modeled on the Wallach case. The Court said that the confiscation of Pike's land," without any doubt, vested it in the United States, or the purchaser," at the Government sale; and that Pike's creditors could not make their money out of any property right left in Pike to that land. The reason given in the Wallach case, that if the fee had been left in the enemy, he might yet use it to further rebellion against the Government, was inapplicable to the position of creditors who sought to make their money. If the fee was in nubibus, that circumstance would weigh against the innocent creditors, presumably loyal, and in favor of the enemy debtor. Hiding one's effects in the clouds to defeat attachment, is something novel. If the land itself had not been confiscated, but only an uncertain, precarious usufruct, as the Court now say, why should it not have remained liable to execution for Pike's debts immediately, with reservation of the usufructuary right? The "abeyance," which the Court recognizes

in the case under review, would have saved Bosworth from his creditors till he got his pardon, and left him exposed to them afterwards.

Knote v. United States (1877), 95 U. S. 149: The effect of pardon, as to the proceeds of confiscated property covered into the treasury, was the point of this decision; and it was held that the pardoned enemy could not recover it, though the criminal theory was reavowed.

In Burbank v. Conrad (1877), 96 U. S. 291, the theory that the confiscation proceedings in rem were criminal proceedings in personam, prevailed; and the Court departed from the rule in The Confiscation Cases, Slidell's Land and Conrad's Lots, supra, and now held that the naming of the enemy owner in the libel, is not merely to describe the property proceeded against, but to make him a party; and that if the res belonged to another, the latter would not be "remediless," should he fail to intervene, as had been held unanimously in the Semmes case. But in Burbank v. Semmes (1878), 99 U. S. 138 (the next case on the subject), the opposite theory prevails; the Court follow the statute; the proceedings are held to have been civil, against property, etc.


French v. Wade (1880), 102 U. S. 132, was almost precisely like the case now under review. Wade's land was confiscated and sold, and French acquired the Government's title, and also bought whatever right remained in Wade—just as the Railroad Co. bought both titles in the Bosworth land. facts of these two cases, and Wallach v. Van Riswick, run together on all fours. The Court said: “By the condemnation and sale, Wade's estate was separated entirely from that of his heirs after his death, and the heirs are not estopped, by his warranty, from asserting their title."

I do not know what that means.

Nemo plus commodi heredi suo relinquct quam ipse habuit.

The Court said: "As to him, the forfeiture was complete and absolute; but the ownership after his death was in no wise affected, except by placing it beyond his control while living." If "the forfeiture was complete and absolute," how could Wade, holding the price of the fee in his pocket, yet have the fce simple title stored away in the clouds, to be brought down to him at death, or on being pardoned for a personal crime? And if the "forfeiture was complete," etc., how can the heirs take from him "by inheritance," as the Court said they did, in this very case? If, "as to him," the forfeiture was complete, as to everybody else it must have been so, since it is conceded that he had held the fee, and no other rights appear in any one


In Kirk v. Lynd (1882), 106 U. S. 315, where the condemnation was under the Act of 1861 (12 Stat. at Large 319), the Court distinguished between that Act, and the Act of 1862 (12 Stat. at Large 589), and held that the fee had been confiscated because the property had been used for hostile purposes, while under the latter Act, property is proceeded against because of its having the enemy character, and therefore it was concluded that the object was to punish the enemy as an offender. The proceedings under both confiscation statutes were in rem, as both required: but the Court did not see that the Government's jus in re arises from the enemy character of property, as clearly as from the hostile use of property. Examples may be given in prize proceedings in rem. A professedly neutral ship, caught in delicto-running a blockade for instance -is condemned for hostility done by a thing, while a ship captured in mid ocean, may be condemned, if an enemy vessel, though nothing hostile has been done in, with, or by it. This principle

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