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Statement of the Case.

under the laws thereof, to said marshal, by virtue whereof the usual notice prescribed by law and by the rules of this court to all persons interested in said real estate to appear in this court on the first Tuesday of April, 1863, to assert their claims, if any they have, in said real estate, was given by said marshal, which notice was duly published in the Cincinnati Daily Gazette, a newspaper printed and of general circulation in said district, for ten days from and after March 18, 1863, and all persons interested having made default, and the default of all persons being duly entered, and the court having heard the testimony of the witnesses proving that said Thomas J. Jenkins, of the State of Virginia, at the date of said seizure, was the owner of said property, and that ever since the 17th day of July, 1862, the said Thomas J. Jenkins was, and now is, in the army service of the rebels in arms against the United States, to wit, in the State of Virginia ; and the court further find that the allegations in said libel are true in fact, and that the life estate of said Jenkins in said real estate is justly and legally forfeited to the United States in pursuance of law, for the causes set forth in said libel.

“It is further ordered, sentenced and decreed that the life estate of said Thomas J. Jenkins be, and the same is, hereby condemned as enemies' property, and that the same be appraised, advertised and sold in the manner pointed out by the rules of this court, and to that end the necessary process is ordered to be issued to the marshal to make sale of said real estate in the manner aforesaid, and that upon such sale he bring the proceeds into this court for distribution; and it is further ordered that the rights of all loyal people to share in such distribution are hereby reserved for further hearing.'

“Defendant says that the above was the only decree touching said property, except the decree of confirmation of the sale and distribution of proceeds.

“Defendant says that thereafter such proceedings were had in said cause that there was sold and conveyed by the marshal, in accordance with said decree, the life estate of said Thomas J. Jenkins to one Edward Bepler.

“Defendant says that by reason of the premises all the

Statement of the Case.

estate of said Jenkins in said property was not condemned and sold, but that there remained in him the reversion or remainder in fee of said property after said life estate sold to said Bepler. Defendant further says that after the termination of the civil war said Thomas J. Jenkins bargained and sold to the defendant, in consideration of the sum of eighteen thousand dollars paid to said Jenkins by defendant, all the interest and estate of said Jenkins in said property, and did execute and deliver to the defendant, on the 26th day of August, 1865, a deed in fee simple, with covenants of general warranty, binding himself and his heirs, and Susan L. Jenkins, wife of said Thomas J. Jenkins, did join in said deed and did release all her right and expectancy of dower in said property.

“ Defendant further says that on the 6th day of June, 1865, said Edward Bepler did execute and deliver to the defendant a deed for said life estate purchased by him at said sale. Defendant says that by reason of the premises he became the owner in fee simple of the property and entered into possession thereof and so continued to the present time.”

To this defence the plaintiffs demurred on the ground that it constituted no defence and was insufficient in law on its face; and they claimed and asked the court to hold that by the decree set up there was an adjudicated forfeiture and sale of the lots described under the confiscation act of Congress of July 17, 1862, 12 Stat. 589, c. 195, and the joint resolution of even date therewith, 12 Stat. 627, and that there was not left in Thomas J. Jenkins any interest which he could convey by deed, but that all which could become the property of the United States and could be sold by virtue of a decree of condemnation and order of sale was the life estate of Thomas J. Jenkins, and that a decree condemning the fee could have no greater effect than to subject the life estate to sale, and therefore the deed executed and delivered by him on the 26th day of August, 1865, was a nullity, and the plaintiffs inherited an were entitled to the property as prayed for in their petition. But the court held that by reason of said decree all the estate of Thomas J. Jenkins in the property was not condemned and

Counsel for Defendant in Error.

sold, but only a technical life estate therein, and that there remained in him the reversion or remainder in fee of the

property after the termination of the life estate sold to said Bepler, which he could sell and convey by deed, and which he did sell and convey by the deed of August 26th, 1865, and that consequently the plaintiffs had not inherited any interest in the property, and overruled the demurrer; to which the plaintiffs excepted. The plaintiffs then had leave to reply to the defence, and they replied as follows: “That by the proceedings in the District Court of the United States for the Southern District of Ohio, in the year 1863, all the estate of Thomas J. Jenkins in the property was confiscated and sold, and there did not remain in him the reversion or remainder in fee after the sale to Bepler; that they admit the execution and delivery of a deed to the defendant on the 26th day of August, 1865, by Thomas J. Jenkins, at Cincinnati, in the State of Ohio, but deny that Jenkins bad any interest in the property at that time which he could convey, and aver that defendant took nothing by the deed from him.” To which reply the defendant demurred, and, after hearing the case, the Circuit Court of the United States for the Southern District of Ohio, at October term, 1888, held that only the technical life estate of Thomas J. Jenkins was confiscated by the said decree, and that there was left in him the reversion or remainder, which he sold and conveyed to the defendant by the deed of August 26, 1865, and that consequently the plaintiffs had no interest in the property, and sustained the demurrer; to which ruling the plaintiffs excepted. And the plaintiffs not desiring to plead further, the court gave judgment for the defendant for the reasons stated in overruling the demurrer.

To review that judgment the case is brought to this court on writ of error.

Mr. S. A. Miller for plaintiffs in error.

Mr. J. D. Brannan and Mr. John C. Healy for defendant in error.

Opinion of the Court.

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

Opinion of the Court.

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 it 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.

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