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 />arag0504_r.htm; website home page: oj.
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