Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P25 ppsx

Escrow 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. ESCROW 229 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION their 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 unc ov- 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 Korea n AIRLINES jet in 1983; and U.S. offensives during the VIETNAM 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 230 ESPIONAGE In 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 General JANET 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 lif e 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ESPIONAGE 231 a 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 spying 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 s ecret. Federal laws make it a criminal offense to disclose the identity of CIA agents, and t he 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 mai ntain 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 inci dent 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 nu clear 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 i n 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 i dentity 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 ura nium from Niger. If such a claim were true, the administration’sassertionsthatHusseinwasa clear and present danger to the world and needed to be removed could justify a U.S. invasion of Iraq. Wilson found no evid ence to support this claim and filedareport.PresidentBushsaidinhis2003State of the Union speech: “The British government has learned that Sadaam Hussein re cently sought significant quantities of uranium from Africa,” Wilson was tro ubled. 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 inva ding Iraq in March 2003. A week after Wilson’s op-ed piece was published, syn dicated columnist Robert Novak revealed Plame’s identity as an intelligence agent, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 232 ESPIONAGE sue. The case called forth NSA’sprogram 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 “se nior adminis- tration officials.” Novak claimed that Plame, who supposedly was a skeptic about some of the supposed pieces of intelligence concerni ng 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 appoi nt 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 und ercover operative. In addition, individuals given access to classified information are prohibited from sharing it with unauthorized persons. In October 2005 Scooter Libby was i ndicted by a federal grand jury on one count of obstruction of justice, two counts of making false statements, and two counts of pe rjury. 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 l eaker of Plame’s identity, was not indicted. Before the start o f Libby’s trial in January 2007, former de puty secretary of state Richard Armitage admittedthathewastheonewholeaked Plame’sidentitytoWashington 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 fi ve charges, including perjury and obstruction of justi ce. He was sentenced to 30 months in prison, a $250,000 fine, and probation, but on July 2 P resident Bu sh commuted Libby’sprison term but left the fine and probation components untouched. Libby remains a convicted felon, as President Bush r efused the entreaties of Cheney to issue Libby a f ull 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’sidentity.However,the lawsuit was dismissed because the federal district court found that Cheney an d the others had executive immunity. Plame resigned from the CIA in 2005, stating that the disclosure of her identity made it impossible for hertodoherwork.Sheandherfamilymovedto New Mexico. In 2007 she publi shed an account of the leak affair entitled FairGame:MyLifeasaSpy, My Betrayal by the White House. The book was made into a motion picture that was t o 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ESPIONAGE 233 U.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 SPEECH in 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 General THOMAS GREGORY referred to as “warfare by propaganda.” Thus the Wilson admi nistration 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, ph otographs, 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”; n To “cause … or incite … insubordination, disloyalty, mutiny, or refusal of du ty, in the military or naval forces of the United States”; n To “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the CONSTITUTION OF THE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 234 ESPIONAGE ACT OF 1917 UNITED 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”; n To “willfully display the flag of a foreign enemy”; n To “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 Madde n 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. Un ited 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 his CLEAR AND PRESENT DANGER test 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 onero us 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 jurist THEOPHILUS PARSONS. The Essex Junto began as a small, indepen- dent faction of prominent, educated men but developed into a strong section of the FEDERALIST 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 ACT of 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ESSEX JUNTO 235 Convention 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 with TREASON for 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 prop erty. 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 freeho ld 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 236 ESTABLISH long 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 the POWER OF TERMINATION, or RIGHT OF REENTRY, for the violatio n 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 commerc ial 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, because LIVERY 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 recognit ion 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, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ESTATE 237 provided 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 granto r ’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 ownersh ip, 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 interfe re 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 plant ed prior to the termination of the life estate can be harvested by the tenant’s PERSONAL REPRESENTATIVE. In addi tion, 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 rat her 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’spersonal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 238 ESTATE . the CONSTITUTION OF THE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 2 34 ESPIONAGE ACT OF 1917 UNITED STATES, or the military or naval forces of the United States, or the flag … or the uniform of the Army. to the WAR OF 1812. It convened, in secrecy, the Hartford GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ESSEX JUNTO 235 Convention in 18 14, which proved to be nothing but an airing of grievances. UNITED STATES, 249 U.S. 47 , 39 S.Ct. 247 , 63 L. Ed. 47 0, (U.S.Pa 1919); Frohwerk v. Un ited States, 249 U.S. 2 04, 39 S.Ct. 249 , 63 L.Ed. 561 (U.S.Mo. 1919); and Debs v. United States, 249 U.S. 211,