Wainwright v. Bridges

dissenting. I cannot concur with the majority of the Court in their opinion just announced; and, as no question of graver import has ever been presented for solution to any tribunal, I deem it proper to state the reasons which have brought me to a conclusion, differing totoccelo from the one reached by three of the other judges.

The plaintiff’s action against the defendant was to recover the price of slaves, sold with full legal warranty on the 8th day of December, 1860, *242and it is resisted by the defendant, whose answer and grounds of defence amount to this :

1. That by the act of the sovereign authority, which is oqualfy binding on the plaintiff and defendant, and for which the said plaintiff is equally responsible with the defendant, the consideration for which the note sued on was given has been destroyed; and that the plaintiff is estopped' and restrained from obtaining, and the Court from granting, a judicial remedy to enforce the performance of a contract based upon African slavery.

2. That the said contract, having been entered into on the part of both plaintiff and defendant, with reference to and under guarantees and protection contained in the laws and constitution of the Federal and State Governments upon the subject of African slavery, and those guarantees and protection which entered into the consideration for which the note sued on was given, having been revoked, annulled and abolished by the sovereign authority of the Federal and State Governments, the plaintiff is estopped and restrained from obtaining and the Court from granting, a judicial remedy to enforce the performance of the said contract.

3. That by the acts of the sovereign authority as aforesaid, the judicial remedy can be no longer invoked to enforce the rights acquired by this vendor under the contract sued upon, and that the said plaintiff is estopped and restrained by equity and good conscience from obtaining and the Court from granting, a judicial remedy to enforce the performance of the said contract in favor of the other contracting party only.

4. That by the acts of the sovereign authority as aforesaid, African slavery has ceased to be the subject of conventional obligations and of judicial actions, and it is contrary to equity, to good conscience, to good morals, and public policy, to enforce the performance of obligations, which have no longer the sanction of the laws of the land, and under which the reciprocal rights and responsibilities of parties created by such .contracts, can no longer be enforced by judicial authority.

This defence, which takes a wide range, is opposed by the plaintiff, whose theory amounts to this :

1. That his legal right and remedy under the law of his contract, which he stands upon, are in no wise affected by the change in the status or condition of the slave sold by him.

2. That the clauses in the Federal and State constitutions, inhibiting slavery, had no retroactive bearing or effect whatever upon contracts previously entered into in relation to that species of property, blit merely eo instanti dissolved the relations between masters and slaves, and terminated the rights of the former.

3. That the emancipation of a slave by the sovereign power is equivalent in law to his perishing by death, as in either event the property, res, ceases to exist, and the maxim of the Roman law, res peril domino, is as applicable to the one case as to the other.

The loss falls upon.the owner who has no recourse in warranty against his vendor.

The questions which arise in this case involve vast interests, and it is therefore not surprising that great talent has been enlisted, and much ingenuity displayed by both parties to sustain their antagonistic theorems.

*243The defandants’ position, in my opinion, embrace the whole subject of inquiry.

1. Did the vendor acquire by the sale of his slaves as soon as it was consummated, any vested legal rights ?

2. Have those rights been legally divested or destroyed, so as to deprive him of his legal remedy to enforce them ?

It is the province of the Courts to solve these queries. The defendants urge that the vendor covenanted with the vendee, under the title which he conveyed to him, to maintain the latter in the peaceable possession of the slaves in perpetuity—a possession without limitation, at least so far as the contract, the lex contractus or the lex temporis was concerned. The only condition to this warranty of perpetual and peaceable possession being, that the right of the person evicting should have existed before the sale.

The question, as I understand it, is purely one of warranty—for it is not controverted that when the sale of the slaves was made it embraced every element of a legal contract. I shall, therefore, proceed to ascertain whether by the contract of sale or the law which entered into and controlled it—the emancipation of the slaves sold, by the general abolition of slavery, long after the sale, amounted to a loss or eviction which was covered by the general warranty.

Warranty, under our law in contracts of sale, exists in all cases where the loss of, or eviction from, the thing sold is imputable to the vendor or to the imperfection of his title, and not where the loss or eviction proceeds from some unforeseen, fortuitous event beyond the control of the vendor.

Article 3522, $ 7, of the Oivil Code, defines a fortuitous event to be that which happens by a force which we cannot resist. In casos of redhibition the rule is, “if the thing sold has perished by a fortuitous event before the purchaser has instituted his redhibitory action, the loss must be borne by him. Civil Code, Article 2511. Was the act of the sovereign inhibiting slavery, a fortuitous event or vis major; and, if so, does the fact that the property sold was aa. “ African” slow, make the case an exceptional one, so as to exclude it from the rule of warranty applicable to the sales of property generally ?

The first of these queries, in my opinion, should be answered affirmatively, the last negatively. It is entirely unnecessary and supererogatory, as I conceive, to enter in the present instance into any elaborate dissertation upon the subject of African slavery, to trace its origin and progress in the United States—for as was said by Mr. Justice McLean, who gave a dissenting opinion in the Bred Scott case, and who should therefore be deemed good authority: “It is immaterial whether a system of slavery was introduced by express law, or otherwise, if it have the authority of law. ” And by our law, slaves eo nomine, were classed as things with every other species of corporeal objects. Civil Code, Articles 439, 450, 452, 461, 3422, 3256, l 3.

Slaves were property in the strictest sense of the term. They were deemed so to be by the constitution of the United States, up to the time when, by an amendment to that instrument, slavery was abolished. See the case of Scott v. Sanford, 19 Howard, page 411; and also by the law of *244nations. (See Wheaton's Law of Nations, 724.) They were introduced into Louisiana as property by the treaty of cession of 1803, and the laws of the United States and of the State of Louisiana, recognized slaves as property until the time of the rebellion.

Whether the traffic in slaves was in conflict with natural law, or violated any canon of ethics, is an abstract question which it is unnecessary to discuss. For all the purposes of the present inquiry, it suffices that in every age of the world, from the earliest times, slaves, both male and female, have been bought with money, (Lev. xxv, 1 and 44, 45 and 46; Gen. xvii, 9. 10, 11, 12 and 13,)'and have been treated as an ordinary article of merchandise.

In Louisiana, and the other Southern States, ‘ ‘no one” (to use the language of Mr. Chief Justice Taney) “questioned the opinion that slavery and the traffic in slaves was morally right. It was regarded as an axiom in morals as well as in jaolitics, which no one thought of disputing, or supposed to be open to dispute, and men in every grade of society, daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”

What, in the course of time, would have been the ultimate condition of slaves in Louisiana, is a mere matter of conjecture; but one thing is certain, that but for the rebellion, the day was distant when the change would have been wrought; and, indeed, the change in the status of slaves was, even with that cause, more attributable to policy and expediency than to any consideration of philanthrophy or humanity.

The principle that general warranty in contracts of sale, does not contemplate nor extend to losses of, or the evictions from, the thing sold by force mqjeure, which the act of the sovereign, “ Fait du souverain,” is deemed to be, seems to be fully recognized by eminent jurists, and by the tribunals of France, whose laws, like our own, are based upon the Roman civil law. It finds place in the maxim: Futuros eviciionis casus post contraclam vendiiionem ad vendiloremnon periinere. The doctrine receives unqualified supjiort in the following authorities: Oass. 27, plur. un 11, et 20 Mars, 1850; T. 2, 51, dans les motifs. Bordeaux, 23 Janv., 1826; Troplong, vente T, 4, No. 423; Duvergier, T. 1, No. 35; Marcadé, sur Particle 1826, No. 2, page 253, 5th edition; Zacharia, et ses annotateurs; Massé et Dugué, T. 4, 685, page 295; Texte et note 8; Aubré et Rey d’aprés Zacharia, T. 3, 355, et la note Rep. Gen. Pal. Fait du Prince, No. 5, 11 suivantes; Meme Rep. et Sup. Yerbe Yente 937, 1113; Tarard, faits du souverain; Pother, No. 935; Domat liv. 1, § 10.

This Court has recognized the same principle in two cases, in one of which, Ollie v. Ogilvie, 13 La. 475, the Court deemed a loss, or eviction from such a cause, a damnum absque injuria; and in the other case, Bourg v. Niles, 6 An. 77, the Court observed, “it is an eviction by the act of the sovereign, and the sovereign alone is to make indemnity where indemnity is due,” i. e., to the owner.

The authority referred to by the Court, for its opinion on that point, is the doctrine laid down in Merlin, Faits du Souverain, Répertoire, which, after giving a clear exposition of what constitutes the Fait du Prince, ou du Souverain, says : “ Le fait du Prince est considéré a Regard des par-» *245ticuliers, comme un cas fortuit et une force majeure que personne n’en est garant cle droit; la garantie n’en est due que quand elle est expressément stipulée,” even if such stipulation, being contrary to public order, would be binding upon the vendor. Journal du Palais, vol. 5, page 147.

A case, however, is referred to by one of the counsel, whose argument in behalf of the defendant’s position is very able and ingenious—which he confidently asserts, holds a doctrine very different from that enounced by the authorities I have quoted; but upon a careful examination of that case, I am satisfied that, so far from militating against the doctrine now advanced, it tends to sustain it. It is the case of Furstenstein, C. Bouchepoin, Dalloz, 1830, page 207, Sirey, 1830,[page 285.

The facts presented therein to the Cour Royale d’Orleans, whose judgment to which I shall allude, was affirmed by the Court of Cass, were these:

Jeróme, King of Westphalia, had, in his sovereign capacity, granted gratuitously to Count Furstenstein the estate of Immochenhain. On the 11th August, 1809, the grantee sold this property, with full legal warranty “ á iouie garantie de droit et de fait,” to Baron Bouchepoin.

In 1813, Jerome having been expelled from his kingdom, the elector of Hesse Cassel, in whose domain the land granted lay, annulled all the gratuitous grants made by Jerome.

To avoid the effect of this ordinance, the Baron Bouchepoin first applied to the Germanic Diet for relief, but in vain, and he was therefore compelled to abandon the premises.

In this state of things, he instituted in the French tribunals an action of warranty against his vendor, the Count Furstenstein, and his action was maintained throughout.

It was contended by the Count, that warranty in sales applies only to evictions imputable to the vendor or to the vices of his title, and not to extraordinary events, which could not have been foreseen, and which the vendor could not control. That the act of the prince, considered as a cause of eviction, should be assimilated to the destruction of a thing by force majeure, and could be no more a ground of warranty than would be the destruction of a thing sold, by fire.

The decision in that case was, that there was a preexisting cause for the eviction—which was, that the grant made by Jerome was in palpable violation of the laws of Hesse.

The warranty was maintained, because the dispositions of the ordinance of the elector of 11th January, 1814, were but the declaration of a preexisting right; that, therefore, the eviction—the result of that ordinance, took its source in a preexisting legislation, and had a cause anterior to the contract of sale; that it could not be considered an act of unqualified sovereignty [de pleine puissance) which originated in the will or caprice of the prince, and that, therefore, it could not be deemed an act of force majeure, or overpowering force.

How does that case compare with the one at bar ?

In the Bouchepoin case, there was an inherent vice in Furstenstein’s title which he warranted, and which had to yield to a better legal title. Why better ? Because Jerome’s gratuitous grant was, when it was madej in violation of the laws of Hesse, and those laws could not be disregarded *246by any sovereign; and as the Court, in the language of the opinion, said:

‘ ‘ La dépossession qui esl le rcsultal de cede ordonnance, prend sa source dans une legislation pré-éxistante, qu’elle a une cause anlérieure au contrat de vente, qu’elle ne peul elre considérée comme un acte de pleine puissance quirCa sa source que dans la volonté ou le caprice d'un prince el qu’ainsi elle ne peid elre considérée comme un fail de force majeure.

' The title to the slaves transferred by the plaintiff to the defendant was an incontrovertible one, sanctioned by the laws of the United States and of the State of Louisiana.

There was not, as in the case of Bouchepoin, any preexisting right in the sovereign to annul the title for any anterior vice in it. Whatever right the sovereign had in advance, to annihilate all title to slaves, proceeded from its will or caprice, and this is the ^reat feature and distinguishing characteristic of all the authorities to which I have referred, and which harmonize with the Bouchepoin case, wherein I repeat the warranty was sustained, because Furstenstein’s title was inherently vicious, the germ of the vice being that Jerome’s grant to him violated preexisting legislation, and that the act of the elector of Hesse, in annulling it, was not one of sovereign will or caprice.

In a late decision of the Court of Cassation, that august tribunal said :

‘ ‘ Bien que des terrains vendus par une vijlle et destinés k former un quartier, n’avaient été achetés que sur la foi de l’établissement de voies publiques devant les traverser d’apres les plaps annexés, la ville ne saurait étre déclarée responsable envers les acquéreqrs de la non exécution ou de la suppression de ces voies publiques, par suite de l’expropriation pour cause d’utilité publique du sol sur lequel elles étaient et devaient étre établies, cette expropriation constitue un fait de force majeure exclusif de toute garantie.”

The destruction of feudal rights in the Regime Féodal, gave rise to much litigation in France; and analogy is supposed to be found in the decisions of the French tribunals, which sustain the doctrine advanced for the defence in this case, but the resemblance between those cases and this one is very faint, because the abolition of the Droits Féodaux et Censeuls, was accompanied with so many specifications and exceptions in the law itself—that each case, being sui generis, no decision in any one case would be authority in another.

One general principle, however, governed the whole jurisprudence on that subject, and it is broadly stated in Cass. 14 Fructidor an 10 Bull., civ. IV,. 507, liv. 1, 37: Que la vente de droits féodaux supprimés postérieurement, est aux risques de Vacquéreur, bien que la chose n’ait pas été livréo ni le prix payé.

In questions growing out of the abolition of slavery, our attention is naturally directed to the action of the tribunals of our sister States, to ascertain what solution they give to such questions, particularly the momentous one which, for several weeks past, has engaged the earnest consideration of this Court, and in which a decision has just been rendered.

' At the July term of 1866, the Supreme Court of Missouri rendered a decision, which states the principle so broadly, that the covenant did not warrant against the action of the State in abolishing the status of slavery, *247and that there was no failure in the consideration of the note representing the price, that I deem it advisible to make a copious extract from tho opinion of the Court. The Court, after preliminary remarks, said: “ The counsel for the appellant assumes that the agreement or undertaking to warrant the title of the girl Clara forever, and that she was a slave for life, amounted to a full covenant, and that she should always continue a slave, and that any act, from whatever source, destroying property in her, constituted such a breach as would make the respondent liable, even on his warranty.

“ All warranties, however expressed; are open to such construction from surrounding circumstances, and the general character of the transaction, and the established usages in similar cases, as will make the engagement of warranty conform to the intention and understanding of the parties. 1 Pars. Contr., 576, 5 ed.

“Words of warranty should neither be extended nor contracted in their significance, but should be construed according to their fair and rational meaning. The true rule governing in the construction of covenants of warranty, is undoubtedly to look into, and ascertain the meaning and intention of the parties, if possible, by an examination of the extent of the whole instrument.

“A party may, however bind himself by covenant, where the law would absolve him from liability on the contract, were it not for his express undertaking.

“ The question to be decided here, must depend upon the meaning of the parties, after considering the surrounding circumstances. The vendor sold the slave, and covenanted with the vendee that she was a slave for life, and that he would warrant and defend the title to her forever. It is not denied that she was a slave for life, at the time the sale was made, and the covenant entered into.

“ The state of slavery was her status at that time, made so by the laws of the land, and there is no pretence that there was anything existing which tended to render the title defective, or to entitle her to freedom. The usual clause inserted in a bill of sale, in the conveyance of that peculiar species of property, was, the person sold was a slave for life; that is, that the person was made a slave by the existing law of the land, and the contract must be presumed to have been entered into with reference to that fact.

“It is the very nature of the institution of slavery, that it can only exist in a civilized nation by the force of positive law. When the vendor sold his slave, with a covenant that she was a slave for life, he intended nothing more than that the law at that time made her a slave for life.

“ The covenant extended to all defects in the title, and was intended to protect the purchaser against them. But it cannot be presumed that the sovereign act or authority of the government, by which all title or property in slaves was totally annihilated, was in the contemplation of the parties.

“ The emancipation of the slaves by the sovereign act of the people, was neither anticipated nor thought of, when the slave was sold in this case.

“ It was not in the minds of the parties, nor embraced within the pur*248view of the warranty. In case of a sale and conveyance of real estate, when the vendor warrants the title and covenants for peaceable and quiet enjoyment, should the property be swallowed up or destroyed by an earthquake, it will not be contended that such destruction would work a breach of the covenant, rendering the seller responsible. We are unable to distinguish the case supposed, from the one presented here at bar.

‘ ‘ The ordinance of emancipation caused a complete annihalation or destruction of all property in slaves. It could not be controlled by the parties, nor was it contemplated by them; and, clearly, the covenant to warrant and defend the title to the negro, and that she was a slave for life, cannot, by any just construction, be made to apply to such an ocouiv rence.” Philips v. Evans, et als, Mo. Rep. 38, p. 315. (See also Lafrance v. Martin, 17 An. p. 77.)

This reasoning of the Missouri Court is so clear as to bring conviction to the mind, and here I may ask, if warranty is due in such cases as is now, and in the Phillips’ case presented, where would be the stopping piace for the exercise of this kind of action.

The starting point for prescription would be the date of the eviction, and vendors and warrantors of slaves, however far removed from the last title, would, in contracts for slaves, executed as well as executory, through a chain of subrogations, be at last overwhelmed in a vortex of vexatious and ruinous litigation.

I consider the abolition of slavery by the sovereign people, as the mere enunciation of one great fact, that the status of. slavery was. extinct, and that slaves became, on the instant libertini or freedmen.

It had no retroactive bearing whatever on contracts which had been entered into, in relation to that speoies of property. It was an act of sovereignty, which affected only the owner of slaves, and was in contemplation of law to them, damnum absque injuria.

It had no more effect upon contracts for slaves than would have a legislative enactment passed after their date, making some act committed by slaves not malum in se, an offence punishable with death or perpetual imprisonment; and it would not be seriously contended that a loss of a slave from such a cause, would be deemed a breach of warranty. If, in such a case, any indemnity was due by the State, the owner would be entitled to it, and it would be paid to him, as was the indemnity by Great Britain and France to the owners of slaves emancipated in their West India colonies.

The rule laid down in Article 1892 of the Civil Code, is, I think, conclusive against the purchaser; it provides: “That where the consideration of, or the cause of the contract really exists at the time of making it, but afterwards fails, it will not affect the contract, if all that was intended by the parties was carried into effect at the time. The destruction of the property after the sale is perfected,, * * * * is a case governed by this rule.”

The maxim of the Roman law, res peril 'domino, so pertinently applied in the Missouri case', is noj; always to be taken in its strictly literal sense, that there must be a perishing of the physical thing or entity. The irrevocable change in the status of the object sold, which destroys and annihilates it as property, comes upon every consideration of reason and *249common sense, clearly within the maxim. The abolition of slavery was not a mere temporary withdrawal of that species of property from commerce, which, at a future period, could, by legislative will, be again ranked as properly.

A slave, by the abolition of slavery, has perished as properly as completely, and to all intents and purposes, as if he had been overcome by death.

See Troplong de la Yente, vol. 1, No. 359, p. 476, sur l’article 1624, C, N. et No. 359, p. 477, L. 23 Dig., de seg. juris.

I am satisfied that the right of the plaintiff to recover the price of the slaves sold by him to the defandanfs, is founded in law, notwithstanding the ingenious and plausible theories submitted to us to sustain the pretensions of the defendants. They soar too high for the judicial mind to • contemplate.

The solemn expression of legislative will, cannot be made to yield to every change of circumstances or events, and it is the sacred duty of judicial tribunals to carry out and apply recognized principles of law, upon all occasions and to all cases.

By our system, equity only speaks when the law is silent, (Article 21, Civil Code,) and in the present case the rules of law are, in my opinion, too plain to be misapprehended or misapplied.

I am, therefore, of opinion that the judgment of the District Court should be affirmed.

The plaintiff, as administrator of the estate of Isaac Dykes, deceased, instituted this suit against the defendants as obligors on three several promissory notes, each for tho sum of §895 50, dated December 8th, 1860, payable respectively in twelve, twenty-four and and thirty-six months after date, drawn to the order of plaintiff as administrator, and stipulating interest at the rate of eight per cent, per annum from maturity until final payment.

He specifies several small amounts to be credited on the notes, and prays judgment for the remainder, principal and interest. These notes were executed for the payment of the price of certain slaves purchased by Mrs. Bridges at the probate sale of the succession of Isaac Dykes, deceased, and, as was heretofore the custom, a mortgage was retained upon the slaves to secure the payment of the sum at which they were *236purchased. The plaintiff avers the loss of hi's mortgage right by the emancipation of the slaves, and asks against the defendants'a personal judgment.

At the November term of the Court, 1865, the case was assigned for trial at the succeeding April term. In the meanwhile certain parties alleging themselves to be heirs of Isaac Dykes, appeared and prayed to be made parties plaintiffs, averring that they have an interest in the notes sued on, and refer to an act of partition made among the heirs before the parish recorder. The defendants objected to this proceeding, but the Court ordered that due and legal service be made upon the parties as prayed for by the new plaintiffs. The defendants, thereupon, “ with reservation of all rights against the proceedings,” waived citation and the usual delays, and filed an answer. They reserved a bill of exceptions to the ruling of the Court, and refer to the answer, in which they specially deny the capacity and rights set up by the new plaintiffs, as heirs of Isaac Dykes.

We do not deem it important, in the decision of this case, to pass upon the regularity of the proceedings in the District Court, and omit an examination of the bill of exceptions. Judgment was rendered in the Court below in favor of the administrator, and the defendants have appealed. The defence is, that there is a failure of consideration arising from the emancipation of the slaves by the act of the government; that the warranty expressed in the act of sale, referred to in plaintiff’s petition has failed, and that defendants are released from all obligation, to pay the notes sued on. On the part of those seeking to enforce obligations of' this sort, it is contended that the vendor’s warranty does not extend to fortuitous events that happen after the contracts have been entered into; that in regard to such fortuitous events the vendor has nothing todo; that he did not warrant against the acts of the government; and that he cannot be held liable for events, the occurrence of which it cannot be supposed were contemplated by him at the time of the sale. They roly on the maxim, res peril domino.

On the other hand, it is contended that it is not consonant with law and equity, after the loss by the act of the government, of the property which was the object of the contract, that the obligor should be required to pay for that property, the right to which would equally have been lost-by the obligee had it remained his; that the maxim, res peril domino applies only to cases where the thing which was the object of the contract perishes in the ordinary course of nature, or by fortuitous events beyond the control of man, and which are produoed by mere physical agency. That in the case of the emancipation of slaves by authority of the government the object of the contract does not perish, but that its status or condition is changed. That the law, making this change of condition, having ceased to secure to the buyer the rights he acquired by the purchase, no longer requires him to comply with his obligation to give the equivalent stipulated for those rights.

This important question has given a wide range for discussion. The subj ects of warranty and eviction have been thoroughly examined by counsel, and numerous authorities have been introduced from the Roman and the French jurisprudence. But these tend rather to confuse than to enlighten.

*237They present conflicting opinions, which it is not easy to reconcile, and from them we are unable to deduce satisfactory conclusions. We must resort then for a solution of the question to the equitable rules that govern contracts in general, and apply them with reference to the effect which the laws abolishing slavery have upon contracts, made in regard to the ownership of slaves.

In entering into the consideration of this subject, we will premise, that in our view of tho question, shivery was never, strictly speaking, established in this country by positivo law. Its original introduction upon the continent of America and the adjacent islands was accidental, arising from the boldness and cupidity of the early European adventurers into South America. Its continuance, when thus introduced, was the result of circumstances, and grew out of considerations of expediency. The system of colonizing in America and the West Indies opened the door for the introduction of slavery, and it was instituted by the greed of speculators and fortune hunters, the government from which they emanated, tolerating tho injustice rather than confirming it by positive laws. Its first form on the American continent was that of tho Indian slavery in South America, in the fifteenth century.

The Spaniards, soon after their occupation of portions of that country, subjected the Indian tribes around them to servitude, needing labor in the first instance in their mining operations. Tho savage, from his native state of freedom and his habits of indolence and ease, being plunged suddenly into a condition of abject bondage, sunk under tho fatigue and exhaustion of his ceaseless toils. The raco began rapidly to disappear. Their miserable fate excited tho sympathies of Las Casas, the Spanish philanthropist, who, after strenuous but vain efforts to procure relief for these wretched victims of his countrymen’s violation of right, fell upon the singular expedient of substituting African slavery in place of Indian servitude. The scheme was successful, and the African slave-trade was commenced.

African slavery, having this origin and character, in progress of time, reached the province of Louisiana. That province, when transferred to the United States, retained African slavery by the conditions of the transfer, to the extent only that it was tolerated by the constitution of the United States, and, consequently, it was imbued with that caducity and proneness to extinction, which, from tho genius and spirit of this government, has characterized the condition of slavery in this country ever since the American revolution. The word -slave is not found in tho constitution of tho United States. Neither is the word slavery. It is a well known fact that the framers of that instrument, in constructing it, purposely avoidedthense of either of these words. They expressly terminated at a fixed period the importation of Africans to this country, to bo subjected to slavery. It is a matter of history, that at tho period of tho formation of tho constitution, and for years afterwards, the groat statesmen of the time had prospective emancipation in view, and never entertained the idea of tho perpetuity of slavery. They viewed it as an entailed evil upon the country, which it was their desire to be rid of as soon as that object could be effected by a safe and practicable emancipation. It was reserved for a later if not a wiser school of politicians in *238tliis country, to perceive the blessings of slavery, to discover'its divine ordination, and to adopt measures to perpetuate it, pending which, it came to a speedy and final termination. Among the barbarous nations of antiquity, captivos in war were subject to death or slavery at the will of the conqueror. This was the prevailing rule. It was acted upon, and recognized among uncivilized men as a right belonging to the victor, and became the basis of slavery among them. This doctrine was asserted by Ariovistus, a king of ancient Germany, in his conference with Julius Caesar, touching the political condition of certain tribes of Gaul, which the former had subdued. “Ad hsec, Ariovistus, respondit: “Jus esse belli, ut, qui vicissent, iis, quos vicissent, quemadmodum vellent, imperarent: itemPopulum Romanum victis non ad alterius prcosoriptum, sed ad suurn arbitrium, imperare consuesse. ” Caesar’s Commentaries De Bellico Gallico, Book 1st, chapter 36. Slavery, under the Roman government, had undoubtedly its origin in this principle, and according to this recognized rule. But five centuries after the days of Ariovistus, when the softening influences of Christianity began to prevail, Justinian conceded that slavery existed in violation of natural right. He said: ‘ ‘Bella etenim orta sunt et captivitates secutas, et servitutes, quae sunt naturali jure contrarias: jure enim naturali omnes homines ab initio, liberi nascebantur. L. I., T. II.

“Servitus autem est constitutio juris gentium, qua quis dominio alieno contra natnram subjicitur.” L. I., T. III.

In the barbarous ages of the world, when Pagan doctrines and Pagan thought predominated, slavery existed upon the principle that might makes right. Upon the dawning of better days, when civilization and Christianity appeared, the unreasonable dogma failed, and the moral conscience of men no longer permitted them to sustain slavery as a thing of right, and to justify its prolongation, they resorted to the plea of expediency. Such, we infer, has been the unstable foundation of the institution among Christian people ever since the time of Justinian. That it existed in this country without the positive authority or sanction of the paramount organic law of this nation, is indisputable. It was simply permitted at the time of the formation of the government, because it was a peculiar evil that could not, with propriety, be suddenly abated. Its existence was only suspensive, and under the implied understanding that it was to be temporary. The laws, therefore, which existed until recently irpon our statute books, on the subject of African slavery, were merely regulations in regard to that relation which existed only by the will of the sovereign power. Shall we, then, announce that the emancipating act of that power is violative of law, and thence deduce the immunity of the seller from loss, and fix it upon the buyer ? Shall we say that the seller has been deprived of vested rights by the mere arbitrary will or caprice of that power, when those rights, such as they were, never existed otherwise than by its mere sufferance ?

Freedom, it has been properly held, was a preexisting right; slavery, a violation of that right. Titles to slaves would, therefore, seem to be vitiated ab initio.

With these preliminary views of the character of the slavery that lately existed among us, we.shall proceed to consider the effects of emancipation *239upon contracts arising from the traffic in slaves. When contracts of that character were entered into they had the sanction of law. They might then be judicially enforced. These conditions were necessary to constitute the sale of a slave a valid contract. Under these conditions the vendor and the vendee contracted; the one that he would pay the price stipulated; the other, that the purchaser should have the labor and services of the slave during his life. The sanction of the law and its authority to enforce both these reciprocal undertakings, being necessary to constitute them a valid eontaact, it follows that, when these essential requisites to a perfect obligation ceased to exist, the contract ceased also. True, the vendor complied with his part of the agreement by transfer of the title and delivery of the slave; but surely the vendee’s consent was given under the assurance that he was to be maintained in the possession of the slave, and to receive his labor and services during life. To force him to a compliance with his part of the contract, would, therefore, be to compel him to fulfil a condition to which he never assented. The sovereign power, the paramount law, puts an end to the ownership. The effect of the act which terminates the owner’s right to the slave is not limited merely to that result. It necessarily involves the entire contract, and annuls it throughout. A mortgage of the slave, to secure the payment of the price at which he was purchased, is part of the same transaction. It is a contract made in aid of, and to fulfil an important condition of the contract of sale.

That the mortgage becomes extinct by emancipation is clear. It is evident, then, that the contract of mortgage is annulled by the same cause. If an important item in the agreement by which the vendor consented to sell, and without which, perhaps, he would not have sold, is rendered void, does not the annulment of the mortgage make a damaging inroad into the coutract of sale ? If so, shall we say that emancipation destroyed the contract of mortgage in its entirety, and destroyed the contract of sale only in part ? This we think not tenable. The contract by which ownership existed is inevitably demolished, and with it all its surroundings. The prohibition against the enactment of laws impairing the obligations of contracts has no application to the sovereign power. It gives vitality and force to the laws which regulate contracts. But the power and efficacy extended to these laws are granted, and exist only by the will of the sovereign. When, therefore, the sovereign will of this nation declared that African slavery should no longer exist within its borders, an unavoidable result was, that the laws which had theretofore sustained the institution of slavery and given their sanction to and enforced contracts, the objects of which were the sale of slaves, ceased to exist.

We do not consider the position maintainable, that the effect of emancipation was merely to produce a change in the status of the slave, and not to render void contracts relating to slaves. The status of the slave could only be changed by annulling the law that gave him that status. Emancipation, and the existence of laws upholding slavery, are incompatible. They cannot exist together. But it was the law which sanctioned and enforced slave contracts that established the status. Slavery existed in this country by no other law. Is that law now in force ? If so, the *240former slave-owner may assert Ms right to the services and labor of the person whom that law once made his slave. If not in force, how can .it be invoked to enforce contracts made in j relation to slaves ? The declaration of emancipation was, in substance, a declaration annulling the laws that sanctioned the dealing in slaves, the enforcement of slave contracts, and, which in fact, created the status of slavery. The fiat of the sovereign is potent to release the contracting parties, as well as potent to sot the bondman free. Its sweep is general, and its wisdom does justice to all. With the ownership perished the obligation to pay the price which was the consideration stipulated for that ownership. The buyer is no longer bound to pay the consideration. The seller is no longer bound in warranty. Thebuyer, the seller, and tho bought and sold, are all absolved. The action of the supreme law leaves the courts without power to enforce obligations of the kind sued upon in this case.

It is therefore ordered, adjudged and decreed, that tho judgment of the District Court be annulled, avoided and reversed.

It is further ordered and decreed, that judgment be and is hereby rendered in favor of tho defendants, releasing them from tho obligations sued upon, tho plaintiff and appellee paying .costs in both courts.

Plaintiff sold defendant certain slaves, and now sues Mm to recover their price.

Plaintiff warranted defendant against eviction of tlio slaves by any right existing previous to tho sale. See Civil Code, 2478.

The right of tho sovereign to evict tho subject of his property is not to be disputed.

This right existed before the sale of the slaves, and has since been enforced.

Although the amendment of the constitution, emancipating slaves, did, by the effects of its provisions, destroy, in some instances, liens granted to secure tho enforcement of contracts relative to slaves, tho conclusion is not rational that therefore it destroyed the obligations of tho parties to such contracts.

The language of the amendment does not show such intendment, and we are not to disregard its words, to find intention different from tho words.

I do not find from the words of the amendment that the sovereign designed and intended the extraordinary deed of destroying valid contracts.

The amendment only freed tho servant from his, master, and destroyed liens granted on him; it did not change or destroy tho master’s obligations, under his contract.

Plaintiff, in my opinion, would be entitled to recover if there was no warranty in tho sale.

Without admitting Judge Taliaferro’s premises, I concur in and adopt the decree written by him as the judgment of this Court.

Slavery, being the violation of natural right, and sustained only by the constantly operating power of the government, founded upon the popular will, when that power was withdrawn and reversed in its operation, equally by the popular will, all legislation touching slavery became void. Property in slaves being prohibited, all contracts based lipón such property are, necessarily, stricken with nullity.

Courts, which act only upon and under the law, cannot give vitality to laws which have become not merely inoperative, but in conflict with constitutional provisions.

To enforce such contracts would be to recognize the consideration as valid.

The Civil Code is a collection of statutory laws, adopted under and deriving authority from the fundamental law, and its rules on the subject of sale relate and apply only to what is property, and cannot bo applied to what that fundamental law declares is not and shall not be property.

The right of the people, in their sovereign capacity, to abolish and prohibit slavery, and as a logical as well as legitimate consequence, destroy all legal rights growing out of the institution, is unquestioned and unquestionable. All parties to such contracts are left as they were when such a fundemental change was effected, and stand as if no such property ever existed; all rights, privileges and obligations, growing out of or incident to the ownership of such property, are extinguished. The seller cannot enforce the payment of the price, nor the buyer the obligations of warranty. Each of the parties is equally participant, and consenting in the abolition and prohibition of slavery. One cannot, in equity, retain and exercise his rights, while the other is divested of all rights. The action of the people in their sovereign capacity, is equal, uniform and universal; and, in its effect, is paramount to the ordinary rules regulating private rights.

This is not a case in which the thing has perished, but the right of property in all slaves is forbidden by the supreme law and public policy, and no obligation exists. That which is forbidden is impossible and void. Civil Code 1757, 1885, 1886. The fact that the contract was made prior to the prohibition, and was then legal, does not relieve it from the effect pf the prohibition,

If it be forbidden by public policy and the sovereign will, to make .a contract, it is equally forbidden to enforce such a contract, whenever made. Eor these reasons I concur in the conclusions of Mr. Justice Taliaferro, whose views, as expressed by him, command my concurrence.