# Illinois Company v. Bosworth/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
133 U.S. 92
Illinois Company v. Bosworth
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 25, 1868, he was restored to the control and power of disposition over the fee-simple or naked property in reversion expectant upon the termination 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 be n 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, Id. 214; Pike v. Wassell, 94 U.S. 711 French v. Wade, 102 U.S. 132; and see Avegno v. Schmidt, 113 U.S. 293, 5 Sup. Ct. Rep. 487; Shields v. Schiff, 124 U.S. 351, 8 Sup. Ct. Rep. 510. 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, therefore, 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 in 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 whenever 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 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. Comm. 107. In the civil law, the legal conception is a lettle 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; haereditas jacens personae defuncti locum obtinet.' Droit de Domaine de Propriete, cc. 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 offenses, 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. In Avegno v. Schmidt, 113 U.S. 293, 5 Sup. Ct. Rep. 487, and in Shields v. Schiff, 124 U.S. 351, 8 Sup. Ct. Rep. 510, this court held that the heirs of the offender, at his death, take by descent from him, and not by gift or grant from the government. They are not named in the confiscation act, it is true, nor in the joint resolution limiting its operation. The latter merely says: 'Nor shall any punishment or proceedings under said act be so construed as to work a for eiture of the real estate of the offender, beyond his natural life.' The court has construed the effect of this language to be to leave the property free to descend to the heirs of the guilty party. Bigelow v. Forrest, 9 Wall. 339; Wallach v. Van Riswick, 92 U.S. 202, 210. Mr. Justice STRONG, in the latter case, speaking of the constitutional provision that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person attainted, (which provision was the ground and cause for passing the joint resolution referred to,) said: 'No one ever doubted that it was a provision introduced for the benefit of the children and heirs alone,-a declaration that the children should not bear the iniquity of the fathers.' But although the effect of the law was to hold the estate, or naked ownership, in a state of suspension for the benefit of the heirs, yet they acquired no vested interest in it; for, until the death of the ancestor, there is no heir. During his life it does not appear who the heirs will be. Heirs apparent have, in a special case, been received to intervene for the protection of the property from spoliation. Pike v. Wassell, 94 U.S. 711. This was allowed from the necessity of the case, arising from the fact that the ancestor's disability prevented him from exercising any power over the property for its protection or otherwise, and no other persons but the heirs apparent had even a contingent interest to be protected. It would seem to follow, as a logical consequence from the decision 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 life-time 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?
Now, if the disabilities which prevented such person from exercising any power over this suspended fee, or naked property, be removed by a pardon or amnesty,-so removed as to restore him to all his rights, privileges, and immunities, as if he had never offended, except as to these things which have become vested in other persons,-why does it not restore him to the control of his property so far as the same has never been forfeited, or has never become vested in another person? In our judgment, it does restore him to such control. In the opinion of the court in the case of Ex parte Garland, 4 Wall. 333, 380, the effect of a pardon is stated as follows, to-wit: 'A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and, when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limitation to its operation,-it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.'
The qualification in the last sentence of this extract, that a pardon does not affect vested interests, was exemplified in the case of Semmes v. U.S., 91 U.S. 21, where a pardon was held not to in erfere with the right of a purchaser of the forfeited estate. The same doctrine had been laid down in the Confiscation Cases, 20 Wall. 92, 112, 113. It was distinctly repeated and explained in Knote v. U.S., 95 U.S. 149. In that case property of the claimant had been seized by the authorities of the United States on the ground of treason and rebellion; a decree of condemnation and forfeiture had been passed, the property sold, and the proceeds paid into the treasury. The court decided that subsequent pardon and amnesty did not have the effect of restoring to the offender the right to these proceeds. They had become absolutely vested in the United States, and could not be devested by the pardon. The effect of a pardon was so fully discussed in that case that an extract from the opinion of the court will not be out of place here. The court say: 'A pardon is an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offense, and restores to him all his civil rights. In contemplation of law, it so far blots out the offense that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives to him a new credit and capacity, and rehabilitates him to that extent in his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise. It does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offense being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offense, or which have been acquired by others while that judgment was in force. If, for example, by the judgment, a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. * * * So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of congress. * * * Where, however, property condemned, or its proceeds, have not thus vested, but remain under control of the executive, or of officers subject to his orders, or are in the custody of the judicial tribunals, the property will be restored or its proceeds delivered to the original owner, upon his full pardon.' The last portion of the above extract was justified by the decision in the Case of Armstrong's Foundry, 6 Wall. 766, where a pardon was received by Armstrong after his foundry had been seized, and while proceedings were pending for its confiscation. He was even allowed to plead the full pardon as new matter in this court while the case was pending on appeal; and the court held, and decided, that this pardon relieved him of so much of the penalty as accrued to the United States, without any expression of opinion as to the rights of the informer.
The citations now made are sufficient to show the true bearing and effect of the pardon granted to Bosworth, and of the general proclamation of amnesty as applied to him. The property in question had never vested in any person when these acts of grace were performed. It had not even been forfeited. Nothing but the life-interest had been forfeited. His power to enjoy or dispose of it was simply suspended by his disability as an offender against the gover ment of the United States. This disability was a part of his punishment. It seems to be perfectly clear, therefore, in the light of the authorites referred to, that when his guilt and the punishment therefor were expunged by his pardon this disability was removed. In being restored to all his rights, privileges, and immunities, 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.
This result, however, does not depend upon the hypothesis that the dead fee remained in Bosworth after the confiscation 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 develove to the heirs of the owner upon his death, or to be revived by any other rause that should call it into renewed vitality or enjoyment. The removal of the guilty party's disabilities, the 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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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