McElvain v. Mudd , 44 Ala. 48 ( 1870 )

PECK, C. J.

(After stating the facts as above.) — 1. There was no error in permitting the note to be read in evidence to the jury, although it was not stamped at the time it was executed. The internal revenue laws were not in operation in this State at that time, nor had the government of the United States, then, made any provision for their enforcement here, by establishing a collection district, and by the appointment of internal revenue officers for that purpose. If appointed, they were not here, and could not be here, for the reason that this State was then in the military possession of the rebel government. No stamps were here, nor could they be obtained; and, besides, if they had been here, or could have been obtained, the rebel authorities would not have permitted them to be used. Eor these reasons it was not then necessary to stamp promissory notes to give them validity, or to authorize them to be used as evidence; and, further, I hold that the note, in this case, would have been admissible, if no stamp had, afterwards, been put upon it. Whether this be so or not, § 9 of the internal revenue act, of the 13th July, 1866, provides that, in all cases where a party has not affixed the stamp required by law, upon any instrument made, signed or issued, at a time when, and at a place where, no collection district was established, it shall be lawful for him, or them, or any person having an interest therein, to affix the proper stamp thereto, prior to the 1st day of January, 1867. That was done in this case, and, consequently, the objection to the admissibility of the note was properly overruled. We will take notice that there was no collection district in this State at the date of this note.

2. The evidence set out in the bill of exceptions, and the charge asked by the defendants, and refused by the court, raise the question as to the validity of the note sued on; that is, whether it has any legal consideration to sustain it, being given for slaves sold by the plaintiff, and! bought by the defendants, after the first day of January, 1863 — the date of the proclamation of the president of the United States, commonly known as the emancipation proclamation.

3. This question makes if necessary for us to consider two other questions, to-wit: 1st. The question as to the force and legal effect of said proclamation, upon contracts based upon the sale of slaves in this State, after the date of said proclamation, and before the suppression of the rebellion, then prevailing in this and other slave States, against the government of the United States; and, 2d. The validity and constitutionality of the ordinance, of the convention of the people of this State, passed December 6th, 1867, entitled “An ordinance concerning the validity of contracts, where the consideration was Confederate bonds or currency, and for the purchase of slaves.”

As to the first question, I do not propose to go into an elaborate discussion of the abstract right, or morality of the institution of slavery, as it existed in this country before the date of said proclamation. To do so, I am persuaded will accomplish no good purpose, and, most probably, we would come out of such a discussion but little wiser, and, I think, certainly no better, than when we entered upon it. '

I shall, therefore, content myself by doing little more than to state, that slavery existed in this country certainly up to the date of said proclamation, and had been uniformly recognized as a lawful institution by all the departments of the federal government, legislative, executive and judicial, from the adoption of the constitution of the United States.

The two acts of congress passed, the one in 1793, and the other in 1850, commonly called the fugitive slave acts, are recognitions, on the part of the legislative and executive departments of the government, of the legal existence of slavery in this country.

It is true, the words “slave” or “ slavery,” are not named in said acts; but no one who knows anything about the history of these acts, and the reasons why they were passed, is so ignorant as not to know, that their object and purposes were to authorize and enable the owners to recover their fugitive slaves, who should escape from their service, and flee into a State where slavery did not exist.

As to the judicial department of the government, it is only necessary to refer to a single case, in the courts, to show that the highest court in the nation has, in the fullest manner, and on the most mature deliberation, recognized and admitted the legal existence of slavery, in what were known as the slave States, and that slaves were property. I refer to the celebrated case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters Rep. 539. In that case, Prigg, the plaintiff in error, had recaptured a slave named Margaret, a fugitive, from her mistress, and had carried her back to Maryland, the State from which she had escaped, and for this was indicted in the State of Pennsylvania, under an act of the legislature of said State against kidnapping, and was convicted, and the case was taken, by writ of error, to the supreme court of the United States, to test the constitutionality of the statute under which the indictment was found.

In the opinion of the court, it is said, in substance, that it was historically w'ell known, that the object of the clause in the constitution of the United States, relating to persons owing service and labor in one State, escaping into other States, was to secure to the slaveholding States the complete right and title of ownership in slaves, as property, in every State of this Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title, say the court, was indispensable to the security of this species- of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it could not be doubted, that it constituted a fundamental article, without the adoption of which the Union could not have been formed.

Its true design was to guard against the doctrine and principles prevailing in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.

Again, say the court, the clause in the constitution of the United States, relating to fugitives from labor, manifestly contemplates the existence of a positive, unqualified right, on the part of the owner of a slave, which no State law or regulation can, in any wise, qualify, regulate, control or restrain.

And, again, the court say, we have not the slightest hesitation in holdiug, that under and by virtue of the constitution the owner of a slave is clothed with the authority, in every State of the Union, to seize and recapture his slave, wherever it can be done without a breach of the peace or illegal violence.

This language, certainly, is clear and positive, and gives no uncertain sound ; it unmistakably shows that slavery, under the constitution of the United States, was a legal institution, and that slaves lawfully belonged to the owners thereof, and that they were property ; and, consequently, could be lawfully bought and sold, and that such contracts were valid, and were supported by a legal consideration. Although the words, “slaves” or “slavery,” are not mentioned in said acts, yet, the court do not hesitate to call things by their right name, and declare that they were passed to protect slavery, and to secure to the owners of slaves the full recognition of their right and title to that species of property.

5. In that'case, the court, also, further say, the constitutionality of the act of congress, relating to fugitives from labor, has been affirmed by the adjudications of the State tribunals, and by the courts of the United States. If the question of the constitutionality of the law were one of doubtful instruction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive recognitions, would, in the judgment of the court, entitle the question to be considered at rest. Congress, the executive and the judiciary, have, upon various occasions, acted upon this as a sound and reasonable doctrine. The court cite, in support of their decision, the cases of Stewart v. Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheaton, 304; Cohens v. The Commonwealth of Virginia, 6 Wheaton, 264.

Besides all this, the said act of 1850 makes it an offense in any one, who shall aid, abet or assist persons, owing labor or service, directly or indirectly, to escape, &c., and any person so offending is liable to a fine, not exceeding one thousand dollars, and, on indictment and conviction, to imprisonment, not exceeding six months. — 1 vol. Brightley’s Digest, &c., p. 297, § 9. This, certainly, is a conclusive admission on the part of Congress of the existence and lawfulness of slavery.

All this being true, what influence and effect had the proclamation of the president on the institution of slavery in the rebel slaveholding States, and upon the contracts of the citizens of said States, with each other, made in good faith, with reference to that sort of property, between the date of said proclamation and the final suppression of the rebellion, a period of nearly two years and six months ? I say, contracts made betiveen citizens of the rebel slave-holding States, because it was unlawful for them and citizens of the United States to enter into any contract with each other, or to have any business, or commercial intercourse whatever, during the continuance of the war.— 1 Kent’s Com. (mar.) p. 66.

At the time the said proclamation was dated, all the power of the United States could not enforce it, within the territory of the rebel States ; nor was it, by the people of said States, admitted to have any legal efficiency whatever, but it was utterly denied that it imposed on them any obligation to obey it — and more, it was never, until the rebellion was suppressed, officially promulgated in said States, nor could it be.

It would seem, therefore, if there were no other reasons, these people should not be permitted to resist a performance of their contracts, made with each other, in good faith, with a full and equal knowledge of all the facts relating to the subject-matter of their contracts, and each party assuming and, taking upon himself all the risks attendant upon them. Risking contracts are not unknown to the law, and, when honestly made, are enforced like other contracts.

We are persuaded, that the president, by whom this proclamation was issued, did not hold, or believe, that from its date it did or could, by its own vigor, so utterly abolish the institution of slavery in the said rebel States, and all property in the slaves themselves, in such manner as to render and make void all contracts made in relation to that kind of property. The language used by him in the preamble, and in the proclamation itself, clearly sustains this view of it.

The preamble recites, that, “Whereas, on the twenty-second day of September, in the year of our Lord, one thousand eight hundred and sixty-two, a proclamation was issued by the president of the United States, containing, among other things, the following, to-wit: That, on the first day of January, one thousand eight hundred and sixty-three, all persons held as slaves in any State, or designated part 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 actualfreedom.”

This is an admission that, notwithstanding said proclamation, the slaves, the subjects of it, were not then, by the mere force of the same, actually free; and it is, also, a declaration that, in the event they made any efforts to obtain their freedom, the United States would do no act or acts to repress such efforts. In the body of the proclamation it is declared, that it is made by virtue of the powers in the president vested, as commander-in-chief of the army and navy 0/ the United States, in time of actual armed rebellion against the authority of the government of the United States, and as a fit and necessary war measure, for the suppressing of said rebellion. Consequently, if the rebellion should not be suppressed, the proclamation would not, and could not accomplish its purpose; and, therefore, until the rebellion was overcome, slavery would continue m fact to exist.

The proclamation was a mere war measure, so admitted by its own language, and, like any other war measure, worthless unless, and until, it could be carried into effect; therefore, it had no potential operation or force, on the people of the rebel States, until the rebellion was conquered. Then, and not till then, did or could the slaves become free by force of the said proclamation; and from that time, and not before, contracts for their sale or hire became invalid, for the want of any legal consideration to support them.

Being a mere war measure, the president, if it failed to accomplish the object intended and desired, by the same powers and authority by which he had issued it, by his powers and authority as commander-in-chief, might, at least, before it was executed and during the continuance of the war, and while the same military necessity existed, and before the slaves, the intended beneficiaries of it, had accepted of it and become parties to it, and had acquired and entered upon the enjoyment of its benefits, in his wisdom and discretion, if he had believed it best, withdrawn the proclamation altogether, and have issued any other proclamation or adopted any other war measure that he might have thought would better accomplish the end desired — that is, the suppression of the rebellion, and the preservation of the Union and government of the United States.

Who can reasonably doubt, but that, at the conference at Fortress Monroe, the president might not then have withdrawn the said proclamation, if he had thought proper to do so, upon the rebel government and people stipulating to abandon their resistance to the government and authority of the Union, and renewing their allegiance to the constitution and government of the United States ?

If this had been done, would not slavery have been continued, under the same guarantees and protection that it had before the rebellion began ? For myself, I can not doubt but that such would have been the effect; and that slavery, now, if such a settlement had taken place, would have had a legal existence in all the then slaveholding States.

In the ease of Morgan, Adm’r, v. Nelson, Adm’r, decided at the last June term of this court, it is held, that emancipation was a fact that would be judicially noticed by the courts, without proof; that it was a national act, and must be referred to some particular date; that it was founded upon the emancipation proclamation of the president of the United States, of the first day of January, 1863, and, consequently, that day, by the doctrine of relation, is held to be the day on which emancipation took place. This doctrine of relation, however, is never permitted to be used or applied, in hinderance, but only in furtherance of justice.

It must not, however, be forgotton or overlooked, in. this connection, that the president’s proclamation was issued when a formidable rebellion was prevailing in the States, in which the institution of slavery chiefly existed, and, therefore, it was not and could not then be executed; and, whether it could be carried into effect, depended upon the suppression of that rebellion.

A mighty struggle was then going on to overcome that rebellion, which continued until the rebel authorities were overthrown and their armies captured, in the early part of the year 1865, more than two years after the date of that proclamation; then emancipation became an accomplished thing, and slavery ceased to have any existence, either in law or in fact, within the territory covered by said proclamation.

But during the period of that struggle, notwithstanding the proclamation, there continued, in fact, an uncertain, indefinite and indeterminate value in the institution of slavery, and property in the unfortunate subjects of it, the slaves themselves.

We see, therefore, that this proclamation, though positive in its language, depended upon a contingency — an uncertain event — the real end of which no one could then foresee, and no one could then know whether its purpose would ever be realized.

This uncertain and indeterminate value, or property, in slaves, where parties acted in good faith, formed a legal basis and consideration for valid contracts; in other words, this uncertain and contingent interest, or property in slaves, might be lawfully bought and sold.

An uncertain interest, a contingent remainder, a mere expectancy, even, is the legitimate subject of bargain and sale. — 2 Story’s Eq. §§ 1040-1055.

Such an interest is of no present value; that is, is not capable of present possession and enjoyment. Not so the interest that remained in slaves, notwithstanding the president’s proclamation ; that was an interest, in present possession and enjoyment, liable only to be defeated on the suppression of the rebellion. If that was never suppressed, then the institution of slavery, and property in slaves, would remain as though the proclamation had never been ■made.

> This proclamation may have had, to a greater or less extent, an effect upon the value of this kind of property, but we know, historically, it continued nevertheless to be freely bought and sold by the people of the rebel States, and was treated as property by the rebel government; a government that had military possession of the country, and a government the people were compelled to obey, whether they would or not. This kind of property was also administered by executors and administrators of deceased parties, and sold and distributed as other property belonging to estates was sold and distributed; and was also held to -be property by the rebel courts, and was levied upon and sold, under their judicial process, in the same manner as other property. For these reasons, we see no better, no more rational way of considering and disposing of controversies growing out of contracts in relation to this sort of property, than to treat them as the parties themselves treated them when they were made, and to hold them, where good faith was observed, as valid contracts.

These views, I think, derive much support from the case of Morgan, Adm’r, v. Nelson, Adm’r, supra.

In that case, Morgan, as administrator, before the date of the emancipation proclamation, had received slaves belonging to his intestate’s estate, and after the said proclamation was issued, either used the said slaves himself or hired them out, and had received their wages. One of the questions in the case was, whether he was to be charged for the use or hire of the said slaves, after the date of said proclamation. We held he was to be so charged. Judge Peters, delivering the opinion of the court, (I quote from his head-notes,) says, speaking of emancipation, “ It was effected by the nation, and not by the States; the only national act that decreed it was the proclamation of the president, of the 1st January, 1863; the struggle afterwards was merely an effort to prevent the proclamation from being carried into effect. The total failure of this struggle, refers emancipation back to that date. But, notwithstanding, the event of 'emancipation is fixed by the act of the nation, at the first day of January, 1863; yet, if an administrator used the slaves of his intestate for his own profit, after that date, he should be charged with such profits up to the date of the discharge of the slaves from his control by the result of the war.”

This is unquestionably right. It is common doctrine, that a trustee is not permitted to profit by his use of the trust property, but is bound to account for any profits he may make, by such use, to the beneficiaries.

But in that case, if the proclamation, by its own vigor, so utterly and absolutely abolished slavery from its date, that no interest or property remained in them whatever from that date, then it follows, that from, that date the slaves not only ceased to be trust property, but also ceased to be property at all; consequently, it would seem, upon every principle of equity, that the profits derived from the use of the slaves did not belong to the estate, but should have gone to those who earned them. The plain inference from all this is, that, notwithstanding the proclamation, there continued an uncertain, contingent interest and property in slaves until the proclamation became effectual, by the suppression of the rebellion; and, therefore, the administrator was rightly required to account for the use of the slaves, from the date of the proclamation until they were discharged from his control, by the successful results of the war.

We remain satisfied with the decision in that case, and are persuaded, rightly understood, it was decided upon correct principles.

The principles settled by the supreme court of the United States, in the recent case of Thorington v. Smith, et al., that went to that court, on error from the district court of the United States for the middle district of Alabama, it seems to me, inferentially, sustain the opinion in this case. It is there held, that a contract made during the rebellion, between parties residing within the so-called Confederate States, which, by the understanding of the parties, was to be satisfied in Confederate notes, could be enforced in the courts of the United States — that Confederate notes, although issued by an illegal hostile government, yet, such notes having, while the war lasted, been used as money in nearly all the business transactions of many millions of people, and having had a certain contingent value, therefore, they should be regarded as a currency, imposed on the community by irresistible force, and should be treated in courts of law in the same light, as if they had been issued by a foreign government, temporarily occupying a part of the territory of the United States; that contracts stipulating for payment in Confederate notes could not be regarded as made in aid of the rebellion, but are transactions, made in the ordinary cases of civil society, and though they may have, incidentally and remotely, promoted the ends of the unlawful government, are without blame, except when proved to have been entered into with the actual intent to further the rebellion.

These views, it seems to me, are persuasive of the correctness of the opinion in holding that slaves, notwithstanding the proclamation, nevertheless, until the rebellion was suppressed, and the said proclamation became effectual to control the people of the rebel States, continued during the period between the date of the proclamation, and the end of the Avar, to have an uncertain and contingent value in said rebel States, and that contracts made between citizens of said States, in reference to that species of property, are sustained by a lawful and sufficient consideration.

A majority of the court, therefore, hold that the note upon which the action is founded, when made, was a valid contract, and sustained by a legal consideration, and that the plaintiff in the court below was entitled to recover upon it, unless this right to recover was defeated by the third section of the ordinance of the convention of 1867, above referred to.

3. We now proceed to consider the question raised in this case, upon said ordinance. The third section thereof, is in the words and figures following, to-wit: “ And be it further ordained, and it is hereby declared, that there is a failure of consideration, and it shall be so held by the courts of the State, upon all deeds or bills of sale given for slaves, with covenants of warranty for title or soundness, or both, and upon all bills, bonds, notes, or other evidences of debt, given for or in consideration of slaves, which are now outstanding and unpaid, and no action shall be maintained thereon, and that all judgments and decrees rendered in any of the courts of this State, since the 11th day of January, 1861, upon any deed or bill of sale, or upon any bond, bill, note or other evidence of debt, based upon the sale or purchase, of slaves, are hereby declared set aside, and the plea of failure of consideration shall be held a good defense in all said suits; Provided, That settlements and compromises of such transactions, made by the parties thereto, shall be respected.”

It is certain, if this section can be upheld, then the note upon which the action is brought, and all like contracts therein named, contracts “ based upon the sale and purchase of slaves,” are worthless. We have already declared the first section of this ordinance unconstitutional, because it impaired the obligation of contracts. — Roach, Adm'r, v. Gunter, at the last June term.

We think this third section must share the same fate. The constitution of the United States declares that, “ no State shall pass any law impairing the obligation of contracts ” — Part 1, section 10, article 1. This ordinance can claim no exemption from the force and effect of this constitutional provision, because it is the act of a convention of the people of the State, and not a law passed in the ordinary course of legislation by the general assembly thereof; for the reason it is the State itself, in its corporate character, that is prohibited from passing such a law. If this third section formed a part of the constitution, it would not save it from the operation of this constitutional prohibition. Part 2, article 6, of the constitution of the United States declares that, “ this constitution and the laws of the United States, which shall be made in pursuance thereof, &c., shall be the supreme law of the land, and the judges in every State shall be bound thereby; any thing in the ■constitution or laws of any State, to the contrary notwithstanding.” We have no hesitation in declaring that this third section of said ordinance impairs the obligation of contracts, and is, therefore, unconstitutional and void.

It does more in legal effect, it utterly abrogates, nullifies and makes void all the kind of contracts named in it.

It is terribly sweeping in its character, and embraces contracts and notes for the sale of slaves, even before the date of the ordinance of secession, as well as those made after the date of the proclamation of the president. We, therefore, hold that said third section is void, both as to contracts made before the date of said proclamation, and those made in good faith, between the date thereof, and the suppression of the rebellion. We refer to the following, as a few of the many cases on this subject, to be found in the reports of the States, and of the courts of the United States.— Green v. Biddle, 8 Wheaton, 1; Gilpeke v. Dubyne, 1 Wallace, 175; Havemeyer v. Iowa County, 3 Wallace, 294; Thompson v. Lee County, 3 Wallace, 327; Johnson v. Bond, Hempstead’s Rep. 533; Webster v. Cooper, 14 Howard, 488; Bronson v. Kenzie, 1 Howard, 316; Lewis v. Broadwell, 3 McLean’s Rep. 568; Arrowsmith v. Burlengim, 4 McLean, 490; McCracken v. Haywood, 2 Howard, 600; Howard v. Bugbee, 24 Howard, 461; Curren v. Arkansas, 15 Howard, 304; Tennessee & Coosa R. R. Co. v. Moore, 36 Ala. 373.

No question is made in this- case as to the sum the plaintiff was entitled to recover. There is no evidence in the bill of exceptions that shows, by the understanding of the parties, the note was to be paid in Confederate money, or that the slaves bought were not, at the date of the note, in the contemplation of the parties, worth the sum agreed to be paid in the legal currency of the United States.

The judgment of the court below, is, therefore, affirmed, with five per cent, damages — see Ordinance, No. 35, of 1867; Pamphlet Acts, 1868, p. 182 — and the costs of this court and of the court below.