Buyer and Seller are sometimes individually referred to herein as a “Party” and, together, as the “Parties.” In consideration of the mutual promises contained herein, the Parties agree a
Trang 1Escrow Agreement
PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Escrow Instructions (“Agreement”) is made and entered into by and between Southern California
Edison (“Buyer”) and the City of Redlands (“Seller”) this 7th day of April, 2009 (“Effective Date”) Buyer and Seller are sometimes
individually referred to herein as a “Party” and, together, as the “Parties.” In consideration of the mutual promises contained herein, the
Parties agree as follows:
AGREEMENT
ARTICLE I PURCHASE AND SALE
ARTICLE II ESCROW
[continued]
Section 2.1 Escrow, Escrow Holder, and Opening of Escrow Within ten (10) business days of the Effective Date of this Agreement, Seller
shall open an escrow to facilitate the transaction contemplated by this Agreement (“Escrow”) with First American Title Company (“Escrow
Holder”) at the address specified in Section 8.6 Delivery by Seller to Escrow of a fully executed original or counterpart original of this
Agreement shall constitute the opening of Escrow (“Opening of Escrow”) This Agreement shall constitute escrow instructions (“Escrow
Instructions”) to Escrow Holder The Parties shall execute such additional Escrow Instructions consistent with the provisions of this
Agreement that are mutually acceptable to the Parties or that may be required by Escrow Holder Escrow Holder’s general provisions
(“Standard Escrow Instructions”) shall also constitute Escrow Instructions for purposes of this Agreement As between the Parties, Buyer
and Seller agree that if there is any conflict between the terms of this Agreement and the Standard Escrow Instructions, this Agreement
shall control.
Section 2.2 Close of Escrow Subject to the conditions set forth in Section 2.8, Escrow shall close on the date that fee title to the Property
is conveyed from Seller to Buyer as contemplated by this Agreement and evidenced by the recording of a grant deed for the Property (Close
of Escrow) Unless otherwise extended by written amendment to this Agreement, Close of Escrow shall occur on July 1, 2009, or sooner,
after all conditions precedent to Close of Escrow have been satisfied or waived Seller may extend the escrow date, in its sole discretion,
by written authorization from Seller’s City Manager to Escrow Holder
Section 2.3 Preliminary and Supplemental Title Reports Escrow Holder shall deliver to Buyer, within ten (10) business days after the
Opening of Escrow, a Preliminary Title Report covering the Property issued by Commonwealth Title (“Title Insurer”) The Preliminary Title
Report shall be accompanied by complete copies of all underlying documents referred to in the Preliminary Title Report as evidencing
exceptions to title (collectively “PTR”)
Section 2.4 Review of Title Documents Buyer shall have ten (10) business days following receipt of the PTR within which to notify Seller,
in writing, of Buyer’s disapproval of any exception to title disclosed in the PTR In the event the PTR is supplemented (“Supplemental PTR”)
by the Title Insurer, Buyer shall have five (5) business days after its receipt by Buyer of such Supplemental PTR, within which to approve or
disapprove any new matters disclosed in the Supplemental PTR In the event Buyer disapproves a matter disclosed in the Title Documents
that Seller declines to cure and that Buyer declines to waive, the Escrow shall be cancelled with respect to the Property upon written notice
by either Party to the Escrow Holder and the other Party Upon any such cancellation of Escrow, each Party shall pay one-half of the Escrow
cancellation charges
Section 2.5 Condition of Title All matters contained in the PTR that are not disapproved by Buyer prior to the end of the period referred
to in Section 2.4 shall be deemed to be permitted exceptions (“Permitted Exceptions”) Seller shall convey the Property to Buyer in fee
simple title, which shall be, except for the Permitted Exceptions, free and clear of all leases, tenancies, rentals, mortgages, liens, charges,
encumbrances, encroachments, easements, conditions, exceptions, assessments, taxes and other defects in title.
Section 2.6 Obligations of Buyer In addition to performance by Buyer of all obligations of Buyer contained in this Agreement, on or before
one (1) business day prior to Close of Escrow, Buyer shall have deposited into Escrow: (i) the Purchase Price for the Property; and (ii) all
other sums and documents reasonably required of Buyer by Escrow Holder to the Close of Escrow
Section 2.7 Obligations of Seller In addition to fulfilling any other obligations of Seller contained in this Agreement, on or before one (1)
business day prior to Close of Escrow, Seller shall deposit into Escrow; a grant deed to the Property, properly executed by Seller and
recordable and any documents reasonably required of Seller by Escrow Holder to carry out Close of Escrow.
Section 2.8 Conditions Precedent to Close of Escrow Seller’s obligation to convey the Property and Buyer’s obligation to purchase the
Property are subject to the satisfaction (or written waiver by the benefitting Party) of the following conditions precedent:
(a) Escrow has not been canceled and/or this Agreement has not been terminated pursuant to Sections 2.4, 2.9 or 3.2;
(b) Title Insurer is prepared to issue the policy of title insurance described in Section 2.13
Section 2.9 Conditions Regarding Close of Escrow In the event that any condition precedent to Close of Escrow referred to in Section
2.8 is neither satisfied nor waived in writing by the Party benefitting from the condition, such condition shall be deemed to have failed and
Escrow shall terminate with respect to the Property If either Party is at fault for cancellation of Escrow pursuant to this Section, including
because the Party failed to act when or in the manner required pursuant to this Agreement, or because the Party acted in any such manner
that impeded satisfaction of any condition precedent specified in Section 2.8, that Party shall be responsible for paying all Escrow
cancellation costs If the Escrow is terminated pursuant to this Section for any reason that is not the fault of a Party, the Parties shall
equally bear the Escrow cancellation costs.
Section 1.1 Purchase and Sale Seller is the owner of certain real property located in the City of Redlands and more particularly described
in Exhibit “A” attached hereto and incorporated herein by this reference (the “Property”) On all of the terms, covenants and conditions
contained in this Agreement, Seller agrees to sell the Property to Buyer, and Buyer agrees to buy the Property from Seller
Section 1.2 Purchase Price The purchase price for the Property (“Purchase Price”) is Sixteen Thousand Dollars ($16,000)
Section 1.3 Payment of the Purchase Price Buyer shall pay the Purchase Price to Seller in cash upon “Close of Escrow” as defined herein.
A sample escrow agreement.
Trang 2their host country Attachés have worked toward the subversion of governments, the destabiliza-tion of economies, and the ASSASSINATION of declared enemies Many of these activities remain secret in order to protect national interests and reputations
The centerpiece of U.S espionage is the CIA, created by the National Security Act of
1947 (50 U.S.C.A § 402 et seq.) to conduct covert activity The CIA protects national security interests by spying on foreign governments It also attempts to recruit foreign agents to work on behalf of U.S interests Other nations do the same, seeking to recruit CIA agents or others who will betray sensitive information Sometimes a foreign power is successful in procuring U.S
government secrets
One of the most damaging instances of criminal espionage in U.S history was uncov-ered in the late 1980s with the exposure of the Walker spy ring, which operated from 1967 to
1985 John A Walker Jr and his son, Michael L
Walker; brother, Arthur J Walker; and friend, Jerry A Whitworth, supplied the Soviets with confidential U.S data including codes from the U.S Navy that allowed the Soviets to decipher over one million Navy messages The Walker ring also sold the Soviets classified material
concerning Yuri Andropov, secretary general of the Communist party until 1984; the Soviet downing of a Korean AIRLINES jet in 1983; and U.S offensives during theVIETNAM WAR John Walker pleaded guilty to three counts
of espionage He claimed that he had become an undercover informant for the thrill of it, rather than for the money He was sentenced to a life term in federal prison, with eligibility for parole
in ten years Michael Walker pleaded guilty to aiding in the supply of classified documents to the Soviets and was able to reach a plea bargain with prosecutors
Jonathan Pollard, an American Jew, was arrested for spying for Israel Pollard served as
an intelligence-research specialist for the Navy’s Field Operational Intelligence Office during the 1980s He provided Israel with about 360 cubic feet of documentation in exchange for about
$50,000 in cash He was eventually arrested by U.S officials, and in 1987 pleaded guilty to spying on the United States Pollard claimed that his actions were acceptable because Israel was an ally and because the Israeli agent with whom he exchanged documents already had received sensitive information from the United States Nevertheless, Pollard received a life sentence
A sample escrow
agreement
(continued).
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Escrow Agreement
Section 2.10 Taxes and Assessments Prior to or concurrent with Close of Escrow, Seller shall pay, cancel or terminate all prior current
taxes, including special taxes assessments and improvement fees or charges levied on or against the Property
Section 2.11 Payment of Costs The costs associated with this transaction shall be paid as follows:
(a) Buyer shall pay an amount equal to the cost of obtaining a standard form CLTA title insurance policy covering the Property in the
amount of the Purchase Price including the cost of the PTR;
(b) Buyer shall pay all costs of Escrow, including the Escrow Holder’s escrow fee;
(c) Buyer shall pay the cost of documentary transfer taxes, if any, in connection with the recordation of the grant deed.
Section 2.12 Brokerage Fees The Parties agree that Buyer is solely responsible for any fees and commissions relating to brokerage fees Section 2.13 Title Policy Escrow Holder shall deliver to Buyer, through Escrow, a CLTA owner’s policy of title insurance insuring Buyer’s
fee ownership of the Property, subject only to the usual printed title company exceptions and the Permitted Exceptions, in amounts equal to the Purchase Price, issued by Title Insurer and dated as of Close of Escrow
Section 2.14 Execution of Other Documents; Compliance with Regulations The Parties shall do such other things and shall execute all
documents which are reasonably necessary for Close of Escrow to occur Furthermore, the Parties shall comply at their own expense with all applicable laws required for Close of Escrow to occur including, but not limited to, any required filings with governmental authorities.
Section 2.15 Recording of Documents and Delivery of Funds Upon receipt of the funds and instruments described in this Article, and
upon the satisfaction or waiver of the conditions precedent to Close of Escrow referred to in this Article, Escrow Holder shall cause the grant deed and other documents specified in this Agreement to be recorded in the official records of the County of San Bernardino Upon Close of Escrow, Escrow Holder shall deliver conformed copies of the grant deed and all other appropriate documents to Buyer.
Section 2.16 Escrow Cancellation Charges Notwithstanding any other provision of this Agreement to the contrary, in the event that Close
of Escrow fails to occur as result of the default of a Party, the defaulting party (“Defaulting Party”) shall be liable for all Escrow cancellation charges In the event that Close of Escrow fails to occur for any other reason, Buyer and Seller shall each be responsible for and shall pay one-half of all Escrow cancellation charges unless specified otherwise in this Agreement.
Trang 3In 1995 Pollard was granted Israeli
citizen-ship while he continued to serve in a U.S prison
In 1998 President WILLIAM JEFFERSON CLINTON
committed a potential blunder when he agreed,
upon the request of Israeli Prime Minister
Benjamin Netanyahu, to review Pollard’s case
The promise sparked a heated debate in the
United States among analysts Clinton was able
to avoid the issue when Netanyahu was replaced
as prime minister in 1999
Another incident in late 1999 also caused
embarrassment to the Clinton administration In
December of that year, 60-year-old Wen Ho Lee
was arrested and charged with mishandling
classified nuclear secrets at Los Alamos National
Laboratory in New Mexico The charge followed
months of controversial investigations by the FBI
and the DEPARTMENT OF JUSTICE into what some
government officials believed was a spy operation
supported by China Considered a security risk,
Lee was placed, by the government, in guarded
solitary confinement for nine months in a Santa
Fe, New Mexico, county jail cell with no
opportunity to raise the $1 million bail He was
held on 59 counts of illegally copying design
secrets as well as destroying seven tapes, to which
his plea was not guilty The government then
offered Lee a plea bargain whereby he could he
plead guilty to one count of downloading
classified data to a non-secure computer Lee
finally agreed to plead guilty to this minor felony
charge As part of the plea bargain, Lee was also
required to provide detailed information as to
what happened to the tapes
The Department of Justice soon came
under fire for its treatment of Lee U.S District
Judge James A Parker, the presiding federal
judge in New Mexico who had been assigned
the case, questioned why the government had
chosen not to pursue a voluntary POLYGRAPH
test or allow Lee to make statements about why
he had downloaded such sensitive material onto
an non-secure computer or destroyed certain
tapes Even President Clinton, who had appointed
then-Attorney GeneralJANET RENO, disagreed with
her about Lee being denied bail for so long Both
Clinton and Parker agreed that if these things had
been provided, the previous nine months would
have been much less taxing for Lee
The FBI endured yet another humiliating
incident in 2001 with the arrest of a
high-ranking counterintelligence officer for the
bureau, Robert Hanssen Hanssen received
hundreds of thousands of dollars in cash and diamonds from Russia in exchange for U.S
secrets U.S officials indicated that Hanssen’s spying reached a peak during the 1980s, and his actions caused the deaths of at least three American spies overseas According to the federal prosecutor in the case, Hanssen used the United States’ “most critical secrets” as
“personal merchandise.” A U.S district judge in
2002 sentenced Hanssen to life in prison
But it was the White House that endured the most high-profile example of modern-day espio-nage when, in 2006, Leandro Aragoncillo, a former Marine and FBI intelligence analyst, pleaded guilty to espionage ostensibly carried
on during his years of service as a staff member
in the office of former vice presidents AL GORE
and Dick Cheney Aragoncillo, a naturalized citizen born in the Philippines, admitted that he confiscated classified material from the vice president’s office, including compromising in-formation concerning the president of the Philippines, and tendered the information to opposition politicians planning a coup in the Philippines Both the FBI and CIA acknowledged that this was the first known case of espionage within the White House in modern history
A 2008 case that likewise drew broad media attention was that of Taiwan-born, but since naturalized, American citizen Tai Shen Kuo, a New Orleans furniture salesman who persuaded
From 1985 until his arrest in 2001, Robert Hanssen, a high-ranking FBI counterintelligence agent, sold more than 6,000 pages of secret and top secret documents to the Soviet Union and, later, Russia.
AP IMAGES
Trang 4a Pentagon official to give him classified military information He posed as a Taiwanese agent, subsequently passing the information on to the People’s Republic of China (China) In August
2008, a federal district court sentenced him to
16 years in prison The former Pentagon official, Gregg W Bergersen, a WEAPONS system policy analyst, was sentenced in July 2008 to 57 months, and Kuo’s girlfriend, Yu Xin Kang, who helped transmit the documents, was sentenced to 18 months
Kuo was arrested in February 2008 at the home of yet another Pentagon official, James W
Fondren, Jr., who was the deputy director of the Washington liaison office for the U.S Pacific
Command In May 2009 federal prosecutors announced that Fondren was being charged with providing classified information to Kuo through“opinion papers”s that he sold to Kuo for several hundred dollars apiece The activity allegedly occurred between 2004 and Kuo’s arrest at Fondren’s residence in February 2008 Fondren also claimed that he believed Kuo was working for Taiwan
In an unrelated matter, a split panel of the U.S Court of Appeals for the Sixth Circuit in
2007 vacated the judgment of a federal district court and ruled that named plaintiffs challeng-ing government spychalleng-ing under the National Security Agency (NSA) lacked legal standing to
Valerie Plame: The Outing of a Spy
T
B
he CIA places a premium on keeping the
identities of its agents secret Federal laws
make it a criminal offense to disclose the identity of
CIA agents, and the CIA itself requires its
employ-ees to sign employment confidentiality agreements
that limit how much information an employee can
reveal after leaving the agency One reason the CIA
needs to maintain this secrecy is that disclosures
can threaten the effectiveness and the safety of
those in other countries who have worked with an
agent Therefore, the disclosure by Washington
columnist Robert Novak in July 2003 that Valerie
Plame was a CIA operations officer caused a
national scandal that eventually led to the
convic-tion of Lewis“Scooter” Libby for perjury Libby, the
chief of staff for Vice President Dick Cheney, had
his sentence commuted by President George W
Bush, yet the incident tarnished the reputation of
several officials in the White House and the State
Department
After graduating from college in 1985, Plame joined
the CIA Over the course of her 20-year career, she
reportedly worked undercover in Europe, eventually
focusing on nuclear arms proliferation issues In the
early 1990s, Plame worked in Athens and Brussels and
earned graduate degrees at the London School of
Economics and the College of Europe She served as
an energy consultant for a CIA front company before
moving to CIA headquarters in Langley, Virginia, in
1997 Plame married diplomat Joseph Wilson in 1998 and gave birth to twins in 2000 By 2001, she had resumed her international energy consulting cover job and traveled again overseas It is reported that she managed spies
Her agency identity was compromised because
of a trip her husband took to the African country Niger in 2002 on behalf of the Bush administration
Wilson was investigating whether Iraqi dictator Saddam Hussein had sought to obtain uranium from Niger If such a claim were true, the administration’s assertions that Hussein was a clear and present danger to the world and needed
to be removed could justify a U.S invasion of Iraq
Wilson found no evidence to support this claim and filed a report President Bush said in his 2003 State
of the Union speech:“The British government has learned that Sadaam Hussein recently sought significant quantities of uranium from Africa,” Wilson was troubled In July 2003 he published an op-ed piece in which he stated that“some of the intelligence related to Iraq’s nuclear weapons program was twisted to exaggerate the Iraqi threat.”
The White House was not pleased with the article, as it undercut its argument for invading Iraq
in March 2003 A week after Wilson’s op-ed piece was published, syndicated columnist Robert Novak revealed Plame’s identity as an intelligence agent,
Trang 5sue The case called forth NSA’s program
for intercepting (monitoring,WIRETAPPING)
com-munications involving any individuals with
suspected ties to al Qaeda (a terrorist
org-anization widely held as being a key player in
attacks against the United States) without
first obtaining a court-issued warrant In
February 2008, the U.S Supreme Court denied
review of the appellate court’s decision ACLU v
NSA, 493 F.3d 644; cert den., No 07-468, 553
U.S _
FURTHER READINGS
Adams, James 1994 The New Spies London: Hutchinson.
Department of Justice 2006 “Former Marine and FBI
Analyst Pleads Guilty to Espionage; Admits
Transferring Classified Information to Assist in Over-throw of Philippines Government ” May 4, 2006.
Available online at http://www.usdoj.gov/nj/press/files/
arag0504_r.htm; website home page: http://www.usdoj.
gov/nj/ (accessed August 8, 2009).
Doyle, David W 2001 True Men and Traitors: From the OSS
to the CIA, My Life in the Shadows New York: John Wiley & Sons.
Gerolymatos, Andre 1986 Espionage and Treason Amster-dam: Gieben.
Hartman, John D 1993 Legal Guidelines for Covert Surveillance Operations in the Private Sector Boston:
Butterworth-Heinemann.
Loundy, David J 2003 Computer Crime, Information Warfare, and Economic Espionage Durham, N.C.:
Carolina Academic Press.
Udell, Gilman G 1971 Laws Relating to Espionage, Sabotage, Etc Washington, D.C.: U.S Government Printing Office.
attributing the information to two“senior
adminis-tration officials.” Novak claimed that Plame, who
supposedly was a skeptic about some of the
supposed pieces of intelligence concerning Iraqi
possession of weapons of mass destruction, had
lobbied for her husband to make the Niger trip,
thereby casting doubt on the credibility of Wilson’s
investigation Three days later, three reporters for
Time wrote that government officials had disclosed
Plame’s identity to them
Joseph Wilson immediately went to the media
and assailed the Bush administration for revealing
his wife’s identity as a CIA officer The outcry over
this CIA leak led the attorney general to appoint U.S
Attorney Patrick Fitzgerald as special counsel to
investigate the disclosure and possible violations of
federal law The grand jury investigation began in
the fall of 2003 A federal law makes it a crime to
knowingly reveal the name of a CIA undercover
operative In addition, individuals given access to
classified information are prohibited from sharing it
with unauthorized persons In October 2005 Scooter
Libby was indicted by a federal grand jury on one
count of obstruction of justice, two counts of
making false statements, and two counts of perjury
Libby pleaded not guilty and resigned as chief of
staff White House political advisor Karl Rove, who
appeared before the grand jury five times and who
was named as another leaker of Plame’s identity,
was not indicted
Before the start of Libby’s trial in January 2007,
former deputy secretary of state Richard Armitage
admitted that he was the one who leaked Plame’s identity to Washington Post reporter Bob Woodward and columnist Novak After this disclosure, Novak revealed that Rove had contacted him about Plame as well Libby was convicted of four of the five charges, including perjury and obstruction of justice He was sentenced to 30 months in prison, a $250,000 fine, and probation, but
on July 2 President Bush commuted Libby’s prison term but left the fine and probation components untouched Libby remains a convicted felon, as President Bush refused the entreaties of Cheney
to issue Libby a full pardon before Bush left office
in 2009
Plame and Wilson filed a civil lawsuit against Cheney and other administration officials, alleging a conspiracy to leak Plame’s identity However, the lawsuit was dismissed because the federal district court found that Cheney and the others had executive immunity
Plame resigned from the CIA in 2005, stating that the disclosure of her identity made it impossible for her to do her work She and her family moved to New Mexico In 2007 she published an account of the leak affair entitled Fair Game: My Life as a Spy,
My Betrayal by the White House The book was made into a motion picture that was to be released
in 2010
FURTHER READINGS Plame, Valerie Fair Game: My Life as a Spy, My Betrayal by the White House Simon and Schuster, 2007.
B
Trang 6U.S House Permanent Select Committee on Intelligence.
1995 Legislative Proposals Relating to Counterintelli-gence: Hearing before the Permanent Select Committee on Intelligence House of Representatives Washington, D.C.:
U.S Government Printing Office.
Volkman, Ernest 1995 Espionage New York: Wiley.
——— 1994 Spies New York: Wiley.
CROSS REFERENCES Central Intelligence Agency; Federal Bureau of Investiga-tion; Hiss, Alger; Justice Department; Rosenbergs Trial.
ESPIONAGE ACT OF 1917 One of the most controversial laws ever passed
in the United States, the Espionage Act of 1917 (ch 30, tit I § 3, 40 Stat 217, 219), and an amendment to it passed in 1918 sometimes referred to as the Sedition Act, were an attempt
to deal with the climate created in the country
by WORLD WAR I While most of the Espionage Act was straightforward and non-controversial, parts of this legislation curtailed FREEDOM OF SPEECHin such a way as to draw an outcry from civil libertarians It resulted in several important U.S Supreme Court decisions regarding free-dom of speech that continue to be studied
With World War I raging in 1917, the administration of President Woodrow Wilson decided that there needed to be a law protecting the United States against“the insidious methods
of internal hostile activities.” Although the United States had espionage laws already on the books, it had not had a law against seditious expression since the ALIEN AND SEDITION ACTS of
1798 expired But Wilson and his cabinet had begun to express concern about what Attorney GeneralTHOMAS GREGORYreferred to as“warfare
by propaganda.”
Thus the Wilson administration proposed and Congress passed the “Espionage Act of 1917.” Much of the act simply served to supersede existing espionage laws Sections of the act covered the following: vessels in ports of the United States, interference with foreign commerce by violent means, seizure of arms and other articles intended for export, enforce-ment of neutrality, passports, counterfeiting government seals, and search warrants
The part of the act dealing specifically with espionage contained standard clauses criminal-izing “obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used
to the injury of the United States” or obtaining
such things as code books, signal books, sketches, photographs, photographic negatives, and blue prints with the intention of passing them on to the enemy While more compre-hensive, these passages were not much different than what had been in previous laws against spying and espionage
But the Espionage Act went further It deemed a criminal anyone who, “when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success
of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty,MUTINY, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States.” The act said such individuals would“be punished by a fine of not more than
$10,000 or imprisonment for not more than twenty years or both.” The act also declared that any mailing that violated the above provision of the act was illegal, and it also banned any mailings advocating or urging TREASON, insur-rection, or forcible resistance to any law of the United States Finally, the act declared it unlawful for any person in time of war to publish any information that the president, in his judgment, declared to be“of such character that it is or might be useful to the enemy.” The 1918 amendment to the act, also called the Sedition Act, went further The act made it illegal to do the following:
n“To make or convey false reports, or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor… with intent to obstruct the sale by the United States of bonds… or the making
of loans by or to the United States, or whoever, when the United States is at war”;
nTo“cause … or incite … insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States”;
nTo “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or theCONSTITUTION OF THE
Trang 7UNITED STATES, or the military or naval forces
of the United States, or the flag … or the
uniform of the Army or Navy of the United
States, or any language intended to bring the
form of government… or the Constitution
… or the military or naval forces … or the
flag … of the United States into contempt,
scorn, contumely, or disrepute”;
nTo “willfully display the flag of a foreign
enemy”;
nTo “urge, incite, or advocate any
curtail-ment of production in this country of any
thing or things… necessary or essential to
the prosecution of the war.”
The passage of the Espionage Act and the
1918 amendment engineered much argument
and disagreement One congressional
represen-tative, Martin Madden of Illinois, noted that
“while we are fighting to establish the
democra-cy of the world, we ought not to do the thing
that will establish autocracy in America.”
Despite this sort of objection, the act and its
amendment passed by large majorities in both
houses
More surprisingly, the act was upheld by the
Supreme Court on the occasions when it
reached the high court In three cases SCHENCK
V.UNITED STATES, 249 U.S 47, 39 S.Ct 247, 63 L
Ed 470, (U.S.Pa 1919); Frohwerk v United
States, 249 U.S 204, 39 S.Ct 249, 63 L.Ed 561
(U.S.Mo 1919); and Debs v United States, 249
U.S 211, 39 S.Ct 252, 63 L.Ed 566, (U.S.Ohio
1919), the Supreme Court unanimously upheld
the convictions under the Espionage Act
Another case,ABRAMS V.UNITED STATES, 250 U.S
616, 40 S.Ct 17, 63 L.Ed 1173, (U.S.N.Y 1919),
which was brought under the 1918 sedition
amendment to the act, also resulted in the
Supreme Court upholding a conviction Abrams
is chiefly remembered for a famous dissent by
Justice Oliver Wendell Holmes, who clarified
hisCLEAR AND PRESENT DANGERtest when he wrote,
“Only the emergency that makes it immediately
dangerous to leave the correction of evil
counsels to time warrants making any exception
to the sweeping command, ‘Congress shall
make no law abridging the freedom of speech.’”
The Espionage Act was eventually
super-seded by a less onerous Espionage Act passed
after WORLD WAR II However, remnants of the
act, particularly the non-controversial parts,
continue to exist in American law as of 2003
(e.g., 18 U.S.C.A § 793) The act is still cited by many civil libertarians as a law that went too far
in its restrictions on freedom of speech
FURTHER READINGS Fellmeth, Aaron Xavier 1996 “A Divorce Waiting to Happen: Franklin Roosevelt and the Law of Neutrality, 1935–1941.” Buffalo Journal of International Law 3 (winter).
Rabban, David M 1983 “The Emergence of Modern First Amendment Doctrine ” Univ of Chicago Law Review 50 (fall).
Stone, Geoffrey R 2003 “Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled ” Univ of Chicago Law Review 70 (winter).
CROSS REFERENCES Debs, Eugene Victor; First Amendment.
ESQ
An abbreviation for esquire, which is a title used
by attorneys in the United States The term esquire has a different meaning in English law It
is used to signify a title of dignity, which ranks above gentleman and directly below knight
In the United States, Esq is written after a lawyer’s name, for example: John Smith, Esq
ESSEX JUNTO
In April 1778 a number of men gathered at Ipswich in Essex County, Massachusetts, to discuss the drafting of a new Massachusetts constitution Composed of lawyers and mer-chants, the majority of the group were residents
of Essex County, from which the assembly derived its name Included among its members were politicians George Cabot and Timothy Pickering, and juristTHEOPHILUS PARSONS The Essex Junto began as a small, indepen-dent faction of prominent, educated men but developed into a strong section of theFEDERALIST PARTY, which exerted political influence for many years It advocated the acceptance of the U.S Constitution and the financial policies of
ALEXANDER HAMILTON The junto staunchly op-posed the ideologies of President THOMAS JEFFERSON, and the EMBARGO ACTof 1807, which prohibited the exportation of American goods
to France and England in an effort to compel those countries to ease their restrictions on U.S
trade The opposition to this act was so vehement that it was repealed
The Essex Junto was opposed to the WAR
OF 1812 It convened, in secrecy, the Hartford
Trang 8Convention in 1814, which proved to be nothing but an airing of grievances without any serious solutions The war ended shortly thereafter, and many of the junto members were ridiculed and threatened withTREASONfor the closed-door tactics at the Hartford Conven-tion The junto soon lost much of its power with the signing of the Treaty of Ghent, which signified the end of the much-opposed War
of 1812
CROSS REFERENCES Constitution of the United States “Federalists vs Anti-Federalists ” (In Focus); Massachusetts Constitution of 1780.
ESTABLISH This word occurs frequently in the Constitution of the United States, and it is used there in different meanings: (1) to settle firmly, to fix unalterably;
as in to establish justice, which is the avowed object of the Constitution; (2) to make or form; as
in to establish uniform laws governing naturali-zation or BANKRUPTCY; (3) to found, to create, to regulate; as in “Congress shall have power to establish post offices”; (4) to found, recognize, confirm, or admit; as in “Congress shall make no law respecting an establishment of religion”; and (5) to create, to ratify, or confirm, as in “We, the people … do ordain and establish this Constitution.”
To settle, make, or fix firmly; place on a permanent footing; found; create; put beyond doubt or dispute; prove; convince To enact permanently To bring about or into existence
ESTABLISHMENT CLAUSE See RELIGION
ESTATE The degree, quantity, nature, and extent of interest that a person has in real and PERSONAL PROPERTY Such terms as estate in land, tenement, and hereditaments may also be used to describe an individual’s interest in property
When used in connection with probate proceedings, the term encompasses the total property that is owned by a decedent prior to the distribution of that property in accordance with the terms of a will, or when there is no will,
by the laws of inheritance in the state of domicile
of the decedent It means, ordinarily, the whole of
the property owned by anyone, the realty as well
as the personalty
In its broadest sense, the social, civic, or political condition or standing of a person; or, a class of persons grouped for social, civic, or political purposes
There are several types of estates that govern interests in real property They are freehold estates, nonfreehold estates, concurrent estates, specialty estates, future interests, and incorpo-real interests
Freehold Estates
A freehold estate is a right of title to land that is characterized by two essential elements: immo-bility, meaning that the property involved is either land or an interest that is attached to or has been derived from land, and indeterminate duration, which means there is no fixed duration of ownership
There are three kinds of freehold estates: a fee simple, a fee tail, and a life estate
Fee Simple Absolute A fee simple absolute is the most extensive interest in real property that
an individual can possess, because it is limited completely to the individual and his or her heirs and assigns forever, and it is not subject to any limitations or conditions
For example, an individual might purchase
a plot of land for which the deed states that the grantor transfers the property “to grantee and his or her heirs,” which would have the legal effect of creating a fee simple absolute The grantee has the right to immediate and exclusive possession of the land, and he or she can do whatever he or she wants with it, such as grow crops, remove trees, build on it, sell it, or dispose of it by will This type of estate is deemed to be perpetual Upon the death of the owner, if no provision has been made for its distribution, the land will automatically be inherited by the owner’s heirs
Fee Simple Determinable A fee simple deter-minable, which is also referred to as a base fee or qualified fee, is one that continues until the occurrence of a specified event When such an event occurs, the estate will terminate automat-ically by operation of law, at which time the ownership reverts to the grantor or his or her heirs
For example, a grantor makes the following conveyance:“To grantee and his or her heirs so
Trang 9long as it is used for school purposes.” The
grantor’s intent is clearly indicated when he or
she creates the estate When the grantee ceases
to use the land for school purposes, the grantor
has the right to immediate possession The
grantee’s estate is restricted to the period during
which the land is used for school purposes
The interest of the grantor is known as a
POSSIBILITY OF REVERTER Ordinarily the words until
or as long as indicate the creation of a special
limitation
Fee Simple Subject to a Condition
Subse-quent A fee simple subject to a condition
subsequent is an estate that terminates only
upon the exercise of thePOWER OF TERMINATION,
or RIGHT OF REENTRY, for the violation of a
particular condition It differs from a fee simple
determinable in that the latter expires
automat-ically, by operation of law, upon the happening
of the event specified A fee simple subject to a
condition subsequent continues even after the
occurrence of the event until the grantor divests
the estate or ends it through the exercise of his
or her power to terminate
For example, the grantor conveys land “to
grantee and his or her heirs, but if the premises
are used for commercial purposes other than
the sale of antiques, then the grantor has the
right to reenter and repossess the property.”
The grantor has the power to end the
grantee’s fee through his or her reentry onto the
premises if the condition is violated Reentry,
however, is totally at the option of the grantor
The grantee’s estate continues until the grantor
either enters the land or brings an action to
recover possession When the grantor does
reenter the land, the remaining portion of the
grantee’s estate is forfeited
Ordinarily, the words used in conveyance to
create an estate subject to a condition
subse-quent are upon condition that, provided that, or
but if, together with a provision for reentry by
the grantor
Fee Simple Subject to Executory Limitation At
English common law, a grantor was not able to
create a freehold estate that was to begin in
futuro, at a subsequent time, becauseLIVERY OF
SEISIN(actual possession) was essential If actual
possession of the land was given to the grantee,
the estate would be immediately effective,
contrary to the grantor’s intent The only
manner in which an estate that was to begin
in the future could be created was through the use of a remainder For example, if a grantor wished to give the grantee a future interest in the land, he might make the following convey-ance, “to transferee for life, remainder to grantee and his or her heirs.” Livery of seisin was thereby made to the transferee, who held the estate for life, and upon the transferee’s death the seisin passed to the grantee
In 1535, however, the STATUTE OF USES was passed, which allowed the creation, by deed, of springing interests, or executory interests A grantor could, thereby, give the grantee a present right to the future interest in the land
The grantor might, for example, convey the land“to grantee and his heirs, grantee’s interest
to commence five years from the date of the deed.”
A grantor can also convey an estate subject
to a shifting interest For example, the grantor might make the following conveyance: “To grantee and his or her heirs, but in the event that grantee dies without issue upon his or her death, then to transferee and his or her heirs.”
The grantee is thereby given a fee simple subject
to an executory limitation, which is the interest
of the transferee
Fee Tail A fee tail is an estate subject to limitations concerning who may inherit the property, which is ordinarily created by a deed
or a will
Two significant historical developments were instrumental in the creation of this type
of freehold estate The first was recognition by the court of the fee simple conditional, and the second was the passing of the Statute De Donis Conditionalibus, commonly known as the Statute
De Donis, in 1285 by Parliament
Prior to 1285, the provision“to grantee and the heirs of his body” was interpreted by the courts as providing the grantee with the power
to convey a fee simple in the property if and when he sired a child An estate of this nature was referred to as a fee simple conditional, since
it was a fee simple contingent upon offspring being born to the grantee The grantee was thereby able to terminate any rights that the heirs of his body might have in the land In addition, he was able to terminate the possibility
of reverter which the grantor had in the land
The Statute De Donis was subsequently passed in order to keep family land in a family,
Trang 10provided there was a family or issue A grantee could not convey land in such manner as to terminate the right of heirs of his body to inherit the land upon his death nor could he convey so as to terminate the grantor’s reversionary interest If the grantee conveyed property“to transferee and his heirs,” and then died, leaving a child, the child could take the land from the transferee If the grantee died with no surviving heirs of the body, the grantor could take the land away from the transferee
The grantor of a fee tail was permitted to limit the inheritance to a specific group of lineal descendants of the grantee He could create a fee tail general, for example, to transferee and“the heirs of his body begotten,” regardless of the number of wives by whom the transferee had children Alternatively, he could create a fee tail special, to transferee and“the heirs of his body
on Ann, his now wife, to be begotten,” which specifies that only issue of the marriage of the transferee and Ann, and no other marriage, could inherit A grant to a man and his male bodily heirs, for example, created a fee tail male while a fee tail female restricted transfer of land
to the transferee and the female heirs of his or her body only
Life Estate A life estate is an interest in property that does not amount to ownership, since it is limited by a term of life, either of the individual in whom the right is vested or some other person It may also last only until the occurrence or nonoccurrence of an uncertain event A life estate pur autre vie is an estate that the grantee holds for the life of another person
A life estate is generally created by deed but can be created by lease No special language is required provided the grantor’s intent to create such an estate is clear The grantee of a life estate is called the life tenant
A life tenant can use the land, take any fruits stemming from the land (i.e., crops), and dispose of his or her interest to another person
The power to dispose includes the right to mortgage the property, and to create liens, easements, or other rights in the property, provided they do not extend beyond the period
of the tenant’s life
The holder of a life estate cannot do anything that would injure the property or cause waste, or in any way interfere with the reversionary interest of the grantee The life tenant has the right to exclusive possession
subject to the rights of the grantor to (1) enter the property to ascertain whether or not waste has been committed or is in the process of being committed; (2) collect any rent that is due; (3) come upon the property to make any necessary repairs; (4) move timber that has been severed and belongs to him or her; and (5) do any acts that will prevent the termination of his or her reversion
The life tenant is permitted to use the property in the same manner as the owner of a fee simple, except that he or she must leave the property in reasonably good condition for the individual who will succeed to the possession The life tenant has an obligation to maintain the property in good repair and must pay taxes and interest on any mortgage on the premises when the life estate begins The life tenant has the right to the issues and profits from the land, and any crop planted prior to the termination of the life estate can be harvested by the tenant’s
PERSONAL REPRESENTATIVE In addition, any fix-tures placed on the ground by the tenant can be removed by him or her If the property is harmed, the life tenant can obtain a recovery for the injury to his or her interest
In a typical life estate for the life of an individual other than the tenant, the grantor conveys the property“to grantee for the life of A.” The grantee is thereby given an estate for the life span of another person In this type of conveyance, A is the measuring life At common law, if the grantee died before the individual whose life measured the estate, the property was regarded as being without an owner The first individual to obtain possession, known as the common occupant, was entitled to the estate until the death of the person whose life measured the duration of the estate An estate pur autre vie could not be inherited by the heirs of the deceased grantee, nor could it be reclaimed by the grantor since he or she had conveyed his or her interest for the life of another person who was still living No one had the right to evict the common occupant
Some grantors made conveyances that pro-vided for the heirs of the grantee For example,
“to grantee and his heirs for the life of A.” If the grantee died during A’s lifetime, an heir of the grantee would take as a special occupant rather than by descent Some modern statutes have made the property interest between the death of the grantee and the measuring life a chattel real, making the provision that the grantee’s personal