W. M. Hall v. T. M. Keese; Dougherty v. Cartwright, 31 Tex. 504

Morrill, O. J. —In a country, nation, or state, where “what pleases the prince is law,” it is only necessary to know the actions or even the wishes or whims of the prince to adjudicate upon the rights of person and property. In a state or nation where, in times of war, what pleases the commander-in-chief of the victorious party is law to the conquered, a proclamation of the commander, setting forth his will, would be decisive of the status of the conquered.

There are but few nations, even among the civilized of modern times, who in times of peace are governed by a “rule of action prescribed by the supreme power in a state;” and still less is this number in times of war. Even in that nation which we denominate our parent country, and which is, par excellence, a country of laws in peace, the happiness or misery of the conquered in times of war depends in a great degree upon the wishes, will, whim, or caprice of the victorious commander.

"Whether the conquered shall retain their lives, liberty, or property, or whether their property shall be confiscated and they themselves blown from the cannon’s mouth, depends in a great measure upon the humanity, avarice, or bloodthirstiness of the general in command. The history of the world is a detail of wars, “and woe to the conquered” blackens every page.

But there is a nation whose theory of government is based upon law, both in peace and war; where the organic law provides that “no person shall be deprived of property without due course of law;” and where in times of war not the commander-in-chief of the army and navy, but the “ congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water,” “to raise and support armies,” “to make rules for the government and regulation of the land and naval forces.” We are so accustomed to look at the precedents furnished us by those nations who either have no constitutions, or whose organic laws do not • contain provisions similar to those of the constitution of the United States, that we base our actions and principles and thoughtless declarations more upon those precedents than our own laws.

In England the king is the sovereign power, and as such sovereign has the power to declare war and exercise such other rights of sovereignty as are specially delegated to the congress. In the United States the congress is vested with the sovereign power. It is evident that if, during the rebellion, the citizens of Texas were citizens of and subject to the constitution of the United States, then they could not “be deprived of property,” in slaves, money, stocks, or agricultural products, without due course of law.

If they were a part of another state or de facto government, and they and their property were captured by the forces of the United States, in that case not the commander-in-chief of the army and navy of the United States, but congress, and congress alone, had and has “power to make rules concerning those captures.” In either case the proclamations, military orders, or whatever else they may be called, can have no effect or force upon any other than the men subject to the commander, unless they are based upon

an act of congress. The powers of the government of the United States are separate and distinct. The powers which belong to one department are exercised by the officers belonging to that department, and exercised independently of any of the others. Each department is separate, co-ordinate, and equal. No majesty is recognized but the majesty of the law; and no man can exercise any power but such as has been delegated to him merely as the servant of the people. “ The power existing in every body politic is an absolute despotism.

In constituting a government it distributes that power as it pleases, and in the quantity it pleases, and imposes what checks it pleases upon its public functionaries.” (Livingston v. Moore, 7 Pet., 546.) In tlie case of Brown v. United States, 8 Cranch, 110, the question before the court was, whether certain property, then in the United States, but belonging to a British subject, with whose nation the United States were at war, was subject to confiscation, Chief Justice Marshall, in delivering the opinion of the court, said: “The questions to be decided by the court are: “ 1st.

May enemy’s property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war? • “ 2d.

Is there any legislative act which authorizes such seizure and condemnation ? “ Since, in this country, from the structure of our government, proceedings to condemn the property of an enemy found within our territory at the declaration of war can be sustained only upon the principle that they are instituted in execution of some existing law, we are led to ask, is there such a law ? ” The chief justice, after having shown that the declaration of war was not such a law, proceeds: “ There being no other act of Congress which bears upon the subject, it is considered as proved that the legislature has not confiscated enemy’s properly which was within the United States at the declaration of war, and that the sentence of condemnation cannot be sustained. “ One view, however, has been taken of this subject which deserves to be further considered : “It is urged that, in executing the laws of war, the executive may seize and the courts condemn all property which, according- to the modern law of nations, is subject to confiscation, although it might require

an act of the legislature to justify the condemnation of that property which, according to modern usage, ought not to be confiscated.” “ The argument must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. It is not an immutable rule of law, but depends on political considerations, which may continually vary.

It is proper for the consideration of the legislature, not of the executive or judiciary.” Judge Story, in his Commentaries on the Constitution, § 1197, after citing the power of Congress “to make rules for the government and regulation of 6 the land and naval forces,’ ” proceeds: “ This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy. “In G-reat Britain the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating fleets and armies.

The whole power is far more safe in the hands of congress than of the executive, since, otherwise, the most

summary and severe punishments might be inflicted at the mere will of the executive.” In § 1177, in commenting upon the power of congress “to declare war,” &c., this same author says: “The power to declare war is exclusive in congress. It includes the exercise of all the ordinary rights of belligerents; and congress may, therefore, pass suitable laws to embrace them. They may authorize the seizure and condemnation of the property of the enemy, within or without the territory of the United States, and the confiscation of debts due to the enemy.

But until laws have been passed upon these subjects, no private citizen can enforce any such rights, and the judiciary is incapable of giving them any legitimate operation.” This same author, in commenting on the powers of the executive, in § 1512, says: “ In England the power to make treaties is exclusively vested in the crown.” But however proper it may be in a monarchy, there is no American statesman but must feel that such a prerogative in an American president would be inexpedient and dangerous.

It would be inconsistent with that wholesome jealousy which all republics .ought to cherish of all depositaries of power. § 1515: “ A man raised from a private station to the rank of chief magistrate, for a short period, having but a slender or moderate fortune, and no very deep stake in the society, might sometimes be under temptations to sacrifice duty to interest, which it would require great virtue to withstand. If ambitious, he might be tempted to risk his own aggrandizement. If avaricious, he might make his treachery to his constituents a vendible

article at an enormous price. “ Although such occurrences are not ordinarily to be expected, yet the history of human conduct does not warrant that exalted opinion of human nature, which would make it wise in a nation to commit its most delicate interests and momentous concerns to the unrestrained disposal of a single magistrate. It is far more wise to interpose checks upon the actual exercise of the power, than remedies to redress or punish an abuse of it.” But the congress of the United States have declared their will as to the disposition of slaves.

As early as the 6th of August, 1861, and the 17th day of July, 1862, the congress of the United States passed “An act to confiscate property used for insurrectionary purposes,” and “An act entitled

an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.” (11 Stats., 589.) The 9th

section of this last act provided, “that all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, &c., escaping from such persons and taking refuge.within the lines of the army, and all slaves captured from such persons, or deserted by them and coming under the control of the government of the United States, shall be deemed captives of war, and shall be forever free of their servitude and not again held as slaves.” This, as well as all the other sections of the act, was prospective, and the fourteen different sections of the act contained full and ample “ rules concerning captures on land and water.” The congress by this act virtually negatives the power of any other branch of the government to do what the constitution authorizes that body alone to do.

The act specially declares the slaves captives of war, and bases their freedom on the fact that their owners “ were engaged in rebellion against the government of the United States,” and it does not free any others. This same act, in the 7th and 8th sections, contemplated “ due course of law” against the owners of the property, and of course the freedom of the slave was dependent upon the disloyalty of the owner, as found by the court.

If, as contended, the proclamation of the President, ipso facto, made all slaves free, it would be in utter disregard of the acts of congress, thus pointing out the manner and conditions of their freedom, and virtually nullify them. And if the judiciaryprove subservient to the executive, our boasted republican government is really, quoad hoe, an absolute monarchy in times of war.

As the proposed XUIth amendment to the constitution was passed by congress on the 1st day of February, 1865,- and as it is to be presumed that the congress supposed that the requisite number of states would ratify it, which was really done previous to the 18th December, 1865, hence there was no necessity to convict their owners of treason to free the slaves. By this amendment, not only the slaves of the disloyal, but of the loyal also, were free, and on the 18th of December, 1865, slavery ceased to exist, and freedom was established co-extensive with the United States.

It is insisted that the proclamation of the President, wherein, as a war measure, he declared the slaves in Texas free from and after the 1st of January, 1868, even if it did not actually make them free, at least it showed the policy of the United States, and that a court, bound to observe the constitution and laws of the United States, ought not to give its aid to enforce a contract for a sale of a slave after that time, and previous to their actual emancipation, because the contract was contrary to the policy of the United States.

That the emancipation proclamation was issued as a war measure appears on its face; that it proved to be one of the greatest of war measures is universally admitted. But its effects were hot upon the parties apparently most interested only. That it was designed to counteract the efforts made by the Confederates in their attempts to enlist the sympathies and material aid in the western European nations, then and there equally balanced, or perhaps slightly preponderating to the cause of the rebels, and that it faithfully performed its mission, will be shown by the historian.

During the first years of the war, the acts of congress and the military orders of the President, as commander-in-chief of the army and navy, amply attest that the policy of the United States was the integrity of the Union, .without any change of the peculiar southern institution.

As late as the 11th of February, 1861, the House of Representatives in congress passed a resolution, yeas 161, nays none, “that neither congress nor the people or government of the nonslaveholding states have a constitutional right to legislate upon or interfere with slavery in any slaveholding state of the "Union.” The President, in all messages and orders, inculcated the same ideas. But, after the war had progressed so far as to be evident that a complete subjugation of the rebellious states was the only preliminary to the integrity of the nation, the policy of the President was changed.

As the Confederates disclaimed the protection guaranteed by the constitution and laws of the United States, the President took them at their word.

Cutting himself loose from the constitution and laws, and appealing to and invoking the considerate judgment of mankind and the gracious favor of Almighty God, he launched out in the open sea of war, and, as a fit and necessary war measure for suppressing the rebellion, declared that all the slaves in a certain designated portion of the United States are, and henceforward shall be, free; and that the executive government of the United States, including the military and naval authorities therof, will recognize and maintain the freedom of said persons.

Two of the first-class nations of Europe had long before abolished slavery in their territories and dependencies, and the autocrat of the Russias had recently followed their example, and not only was the considerate judgment of the people of the western hemisphere, but of all mankind, invoked on this measure. These nations were estopped by their own actions from giving further countenance and encouragement to the "Confederate States in their attempt to erect a government whose corner-stone was slavery.

It is to be remarked that the President did not base this proclamation upon the constitution or laws of the United States, but solely on his power as commander-in-chief of the army and navy. He clid not intimate that any other power of the government would assist him, but simply that the executive government of the United States, including the military or naval authorities thereof, would recognize and maintain the freedom of Said power.

Congress took a different course, and acted agreeably to their often-repeated declaration, that universal emancipation could not legally take place except by an amendment to all the state constitutions or of the national constitution, which the people, through the States, adopted. Until slavery was abolished no feature of it was destroyed. Owners of slaves had all the rights of property therein, and the one not the least in importance is its vendible quality. The known and indisputable effects of the President’s proclamation are sufficient to pronounce it unparalleled as a war measure and military strategy.

The announcement to the slaves that they were free caused them to desert their masters by thousands,1 and, by thus depriving the confederacy of their assistance, and transferring it to the army of the United States, doubly assisted the latter, and in the same ratio injured the former.

The invocations of the considerate judgment of mankind and the gracious favor of Almighty God were responded to by the passage of the XHIth amendment to' the constitution, and had the same potency and effect on the ruling powers of Europe that the command of an ancient Jewish hero had on the sun and moon when he ordered them to “ stand still.” We now pass to another and different subject, having reference to the effect of the freedom of slaves upon contracts executory in part for their sale.

In the case before the court the vendor, in January, 1865, sold and delivered a slave to the vendee, who in consideration thereof executed a promissory note for the payment. In the other case, a slave, at the same time, was hired, for a year, and a promissory note given in consideration of the hire. As there was nothing illegal in the transaction, the notes were not void for illegality. The consideration is represented as having failed. It is not pretended that at the time of the contract there was no consideration.

Each party had the same means of knowing the future condition of the slave, and acted upon his own ideas as to the result of the war. That the cause which proved mortal to slavery would soon sweep over the land was apparent to some, and disbelieved by others.

There was, however, no breach in the contract on the part of the vendor at the time, of the sale.- And though the vendor guaranteed the subject of sale, a slave for life, and the slave in the same year was made free by the superior power, inasmuch as at the time the sale was made he was a slave for life, yet, if his freedom was occasioned afterwards, not by the vendor, but by the sovereign power of the nation, the vendor did not violate his contract.

The question is, "Who was the owner at the time the slave became free ? “ lies peril suo domino .” The vendor could not legally guaranty that the supreme power in the state or nation would not exercise their legitimate functions. All governments are based upon the theory that the sovereign power therein is omnipotent in what respects property. In Graves v.

Heaton, 3 Cold., 13, the supreme court of Tennessee said: “ The pecuniary loss consequent upon the emancipation of slaves by the amendment of the constitution of the state adopted on the 22d of February, 1865, must be borne by those who were the owners of such slaves at the time of their emancipation.” In Woodfin v. Sluder, 1 Phill., 202, the court said: “If A give a slave to B for a year, B, during the year, is the owner of the slave. If the slave die during the year, A loses his general property, and B loses the special property and the hire.

The emancipation of slaves during the year was then artificial death on slaves, and operated as would their natural death; therefore the defendant is liable for the hire during the whole of. the year.” After the parliament of Great Britain passed the act (3 and 4 W., c. 4,73) entitled “An act for the abolition of slavery throughout the British colonies, for promoting the industry of the manumitted slaves,” &c., the purport of which act was, that slaves in the colonies should be free from slavery, but should be apprenticed until the 1st August, 1840, and afterwards entirely free, one M, being the owner of one hundred and fifty-three former slaves, then apprentices, conveyed them to F, in consideration of £7,800, to be paid in six annual installments, on the 12th day of January each successive year.

In July, 1868, the governor of the island wherein the parties resided decreed, that from and after the 1st of August, 1838, all and every of the former, held as apprentices, should be free from their apprenticeship, thereby lessening the term two years. On the refusal of F to pay the two- last annual installments, falling due after the apprentices became free, M brought suit on the contract, and F set up the defense as above stated in all its changes and varieties. In delivering the opinion of the court, the judges said: “ The whole question is, who shall bear the loss occasioned by a vis major.

And that depends on the question who was the proprietor when that loss was occasioned. The properly in the service of these laborers had been transferred to the defendant. The question is analogous to those which arise by fire, as, whether the goods destroyed were in transitu or the transit was ended. If the property here had passed and the residue of it was destroyed by a vis major, the loss must fall upon the proprietor of the thing, namely, of the services during the unexpired term. And . in my opinion that was the case.” (51 Eng. Com.

Law, 1019.) “ This was a contract of sale, an engagement on one side to transfer all right to the services, and on the other to pay the stipulated sum. The act of the colonial legislature in 1838 made no alteration in that contract.” This case is decisive of the two principal points arising in the case before the court. It certainly will not be contended that the policy of the British government, at the time the contract for the sale of the apprentices was made, Had not become as notoriously opposed to slavery as that of the United States during the war.

Yet the British courts did not conceive that the sale of these former slaves, under the name of apprentices, was contrary to public policy, or that the contract was illegal or void for want of consideration.