Henry Slaback, Appellant, vs. Leoma L. Cushman, Appellee, 12 Fla. 472

RANDALL, C. J., delivered the opinion of the court : The question presented by the record for our determination is, as to the effect of the “ proclamation of emancipation” issued by, the President of the United States on the first day of January, A. D. 1863. On that day the President of the United States issued a proclamation reciting that on the 22d day of September, A.

D. 1862, he had issued a proclamation announcing. “ that on the first day of January, 1863, all persons held as slaves within any State or designated parts of a State, the people whereof shall then be in rebellion against the United States, shall be then thenceforward and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom ;” and further, that on .the first of January, 1863, he would by proclamation designate the States and parts of States, if. any, in which the people thereof^ respectively, shall then be in rebellion against the United States.

And designating the States and parts of States in which the rebellion existed, the proclamation says that, “ as a fit and necessary war measure for suppressing the rebellion,” “ and by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States, are and henceforward shall be free, and that the executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.” “And upon this act, sincerely believed to be

an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind,” &c. The State of Florida is one of the States designated, in which the said rebellion existed. The courts of the several States and of the United States have judicially recognized the late insurrection and rebellion by the people of a portion of the States of the Union, as a civil war, and have so recognized maxxy of the measures taken by the military authorities of the United. States in conducting the war.

The question arises, however, whether the proclamation of a military commander, under the laws of war, has a present legal effect upon persons beyoixd the lines of military occupation by the power from xvhich the proclamation emanates. The Supreme Court of Alabama has held that it “ had no force or validity until the Federal Government was enabled by conquest or the power of arms to enforce it,” and “ that the institution of slavex-y was destroyed by the act of war.” 40 Ala., 524.

Personal property within axi enemy’s country may be taken by military order, and the owner’s title thereby divested, but the right of owners is not divested until actual seizure axid appropriation.

In time of peace the President, with or without the sanction or authority of Congress, had no power to issue a proclamation freeing the slaves ; but as Commander-in-Chief of the Army he had the power, during the war, to issue any military order authorized by the usages of modern warfare, which the circumstances required; hut no military order or proclamation issued by him could have effect over persons or property not within the lines of military occupation, but within the lines of'the enemy and over which they had exclusive control. Lawrence’s Ed. Wheat. Int. Law, 604 — Notes.

The proclamation was purely, as' it purports to be, a war measure, issued by the President as Commander-hi-Chief in time of war, and to affect the war. Under it, slaves coming within the lines of Federal military occupation could not he reclaimed by their former owners. They were thus practically free by means of actual force ; by the power of arms. “ The rights of owners of slaves, not within the lines of military occupation of the United States during the late war, were in no wise affected or impaired by the emancipation proclamation of the President.” Dorris vs. Grace, 24 Ark., 326.

We have not found many decisions of the courts touching the question, but are inclined to adopt the general doctrine above quoted in disposing of this case. Mr. Dana, in his edition of Wheaton’s International Law, (440,, 441,) makes the following note. Without adopting all his suggestions, we give them as the views of a prominent member of the legal profession and writer upon elementary law : “ A slave, stands in two relations to his master and his master’s sovereign : that of an

article of property and that of a human being. Regarded as a mere

article of property on land, a movable corporeal chattel, he would not be transferred from the private citizen to the occupying power, except as being contraband of war ; a test that could be applied only to the males capable of military service or of labor in aid of war.

Exit as persons capable of being xxsed by the will of the master or his State, irrespective of their own will, in war, as soldiers or as laborers, the occupying sovereign has the right to transfer their faculty of service from the enemy to himself. “ They are so directly liable to State control in war, that their condition follows the fortunes of the war. * * * “ If the occupying State hold slaves, the slaves merely chang-e masters; if it does not, the slaves are emancipated. Their emancipatioji is as complete as their mere transfer would have been.

It is a plenary act of ownership exercised upon them by the capturing power in actual possession.

The emancipating of slaves by the occupying power may also be treated as an exercise of temporary power of conquest over the political system of the ejected enemy, which, as far as it operates on slaves to give them freedom, is complete, and must be so regarded by all neutrals, and by the conquered State itself after peace, on the principle of uti possidentis” During the civil war of 1861-5, the commanders of the national forces refused to restore slaves that fled to their lines, or that came under their control, to masters who were domiciled in places under control of the rebel enemies.

This was a war measure, and put on the ground that the slaves were in the nature of contraband of war. By the act of Congress of July 17, 1862, (U. S. Laws, XII., 590), slaves of any persons engaged in the rebellion, coming within the lines of the armies of the United States, and all slaves captured from such persons, or deserted by them, and coming under the control of the armies of the Union, and slaves of such persons found in any -place occupied by the rebel forces and afterwards by the armies of the Union, were declared to be captives of war, and to be forever free.

By the same act, the President was authorized to employ persons of African descent in the public military service. President Lincoln, by a proclamation of 1st January, 1868, designated certain States and parts of States as still engaged in rebellion, and then declared the persons held as slaves therein to be henceforth free. • It will be observed that this order of emancipation was not a legislative act of the law-making power of the Union, but

an act of the President in his character as Oommander-in-Chief, and a military measure. Although the language of the proclamation is general, and in the present tense, as if giving a legal status of freedom from its date to all slaves in the designated 'States, still, from the nature of the case, it would seem, that being a military measure, by a Commander-in-Chief who had no general legislative authority over regions of country not in Ids possession, it could not operate further than as a military order.

From that time, all slaves coming under the control of the forces of the United States, in the manner recognized by the law of belligerent occupation, were to be free. If this is the correct view of the virtue of the proclamation, it became thereafter a question of fact, as to each slave and each region of country, whether the forces of the Union had such jjossession as to give effect to the proclamation.

In time of peace, the relation of master and slave was matter of local and not of national legislation; and it could not be maintained that the civil war gave Congress a general legislative power on that subject over regions of country covered by those States and not in possession of the Union forces; or that the President, as Commander-in-Chief, had any legislative functions which could operate by a mere declaration of his will in places out of Ms belligerent control. ' Upon the state of the evidence in this case, the charge of the court was not erroneous, and the judgment must be affirmed. WESTCOTT, J.

Whether the proclamation was effective for any purpose within the lines of the federal army, is not involved in this case, and while I agree with the judgment of the court, I express no opinion as to whether, with the acts of Congress and under all the circumstances existing at the date of that proclamation, the President had such power under the Constitution of the United States in reference to the property of residents witMn army lines. It certainly was not effective outside of the line of military occupation, and that is the question involved in this case.