dissenting. — In this and several other cases of the same character the question is, whether obligations for money, given for the purchase of colored persons as slaves in Texas, since the 1st of January, 1863, can now be enforced in the courts of the country?
The importance of the question is at once perceived, and this court, being anxious to arrive at a conclusion resting upon reason and authority, some weeks past invited discus*535sion of the point by the bar generally. It is to be regretted that this invitation was responded to by but two attorneys of the court, and that they both appeared on the affirmative side of the question, as stated above. Their arguments were certainly very able and exhaustive on that side, as was to be expected of them from their high and well-earned reputations at the bar; but I am constrained to differ not only with them, but also with some of my brethren of this court, as to much of the reasoning employed, and certainly as to the conclusion at which they have arrived. One of the able counsel alluded to says, in the first paragraph of his printed brief:
“We are invited to discuss the very question, What was the effect of President Lincoln’s proclamation of the 1st day of January, 1863, upon negro slavery in Texas.”
This, to my mind, is not only not a fair and full statement of the real point involved, but does not in fact reach the proper inquiry. The manner in which the question is stated by him shows that he regards it as one to be settled by the legal effect to be given to the President’s proclamation by the mere effect of his promulgation. It will, however, be more fair to give the questions, as stated more at length by him in his brief and as he has argued them. He asks, “Did the proclamation of President Lincoln operate, ipso facto, in Texas so as to liberate the slaves instanter, and to deprive the master of the ability to sell or hire them thereafter, and to recover the notes given for their sale or hire ? ” And, after having answered this, he proceeds to state another proposition, in the following form, the truth of which he denies: “ But it is insisted that, although freedom did not exist, cle facto, it did become the rule, de jure, on the 1st day of January, 1863;” and then adds: “ Such seems not to be the understanding of the courts, whose peculiar province it is to interpret the federal constitution.” He refers to a decision by Chief Justice Chase in a case in Maryland, and one by Mr. Justice Swayne in Kentucky, neither of which, as I *536shall presently show, have the slightest applicability to the case at bar, and deduces from them, very unwarrantably, as must be manifest from a moment’s reflection, authority for saying that slavery only ceased to exist in Texas by the ratification of the X 11 Ith amendment of the constitution of the United States.
And these propositions I understand to be substantially those upon which the members of the court from whom I differ rest their opinion.
The first and second of these points are delusive, and, whether so intended or not, are well calculated to lead the mind from the true inquiry upon which this case rests.
And, for the purpose of making myself understood at once in my effort to expose their fallaciousness as predicates from which to reason in this case, I will state what I regard as the real question in the case, to wit: “Was a sale of negroes in Texas after the 1st of January, 1863, opposed to the solemnly-declared will and policy of the United States government, and had the United States the right, under existing circumstances, to declare such policy ? ” If these questions are to be answered in the affirmative, then it is unnecessary to do more than add, that they should receive no aid from loyal courts to carry them into execution.
How, from these real questions I do not purpose to be diverted by reference to authorities which I do not controvert, which I freely admit to be sound law, but which to my mind cannot by the most adroit reasoning be made applicable to this and other cases of the same character.
Why ask the question whether the proclamation of the President operated, ipso facto, so as to liberate the slaves in Texas instanter, or whether, if they were not free under it de facto, it was not the rule de jure ? Their actual condition up to the close of the war was, de facto, that of slaves undoubtedly, and their condition de jure to-day in Texas depended upon the results of the war; for if the confederacy had succeeded the courts of this State would have dis*537regarded not only the proclamation of emancipation, but the Xmth amendment of the constitution as well, and this court would not be sitting here to determine this or any other question. Whatever rights they were to enjoy under and by virtue of this proclamation were to be secured by war then existing. If the government of the United States failed in the contest, the proclamation was nugatory; if it succeeded, then freedom was established. I do not, therefore, throw myself upon doubtful or untenable ground by assuming that emancipation was an accomplished fact by mere force of the proclamation.
But I do assume that, by the terms of that memorable instrument, the high purpose of the government was, in solemn form, made known to the citizens of the government and to the nations of the earth, that slavery should cease in the states which it embraced, provided effect could be given to it by force of arms, and that this declaration of purpose was authoritative and warranted by the constitution as a measure of war, and was carried into full effect by the success of the national arms.
How, for the purpose of maintaining these positions, I shall admit, as freely as others earnestly insist, on the fact of Texas being a defacto state government during the war. In truth, I have never been able to perceive any reason, legal or political, why any friend of the government should deny a fact which all the world knows to be true.
From the fact of a civil war and a de facto government here in Texas I deduce the right of the national government to declare and effect the emancipation of the slaves.
The character of the war through which we have lately passed and the status of the governments engaged in the rebellion, state and Confederate, must be determined, in order to arrive at a proper solution of the real question involved in this case.
I proceed to consider these questions at some length, because of their intrinsic importance as involving grave *538and interesting principles of the public law of nations, the rights and powers of the national government as a successful belligerent in the late war, and because it is believed that very many claims, contracts, and obligations, in this state, are dependent upon the principles which are here to be determined.
The question at bar is dependent upon the effect to be given to the action of the United States government pending and since the' war, as- the successful contestant in the late conflict of arms. It becomes, therefore, necessary to inquire somewhat into the nature and character of the contest and the resulting rights and obligations of the respective contestants. This I proceed to do as briefly as may be, to make my views of them intelligible. To this end it is needless to recur to the past, beyond the necessity and duty of affirming the paramount authority of the national government over all the citizens within its jurisdiction prior to and at the moment of the inception of the war. That the war occurred, and when and in what manner, by whom and for what assumed cause and declared purpose, are matters of public history. Our inquiry relates to its effects through the action of the national government upon the institution and rights of the people of the insurgent states.
War is defined briefly by some writers on international law to be “ That state in which we prosecute our right by force.” I deem it essential to the proper understanding of the question before us to determine the character of the recent war. Was it a mere association of insurgent citizens, resisting the authority of government, and who by their acts made themselves, and themselves only, personally responsible to the government, or did it assume other and larger proportions ? One of the highest authorities upon international law, in treating upon this question of what distinguishes mere rebellion from civil war,says: “When a party is formed in a state, who no longer obey the sovereign, and *539is possessed of sufficient strength to oppose him, or when, in a republic, the nation is divided into two opposite factions and both sides take up arms, this is called civil war. Some writers confine this term to a just insurrection of the subjects against their sovereign, to distinguish that lawful resistance from rebellion, which is an open and unjust resistance. But what appellation will they give to a war which arises in a republic torn by two factions, or in a monarchy between two competitors for the crown? Custom appropriates the term of “ civil war ” to every war between members of one and the same political society.
“A civil war breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies, two distinct societies. Though one of the parties may have been to blame in breaking the unity of the state and resisting the lawful authority, they are nqt the less divided in fact. Besides, who shall judge them ? Who shall pronounce on which side the right or the wrong lies ? On earth they have no common superior. They stand, therefore, precisely in the same predicament as two nations who engage in a contest, and, being unable to come to an agreement, have recourse to arms.
“ This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor, which we have already detailed in the course of this work — ought to be observed by both parties in every civil war. For the same reason which renders the observance of those maxims a matter of obligation between state and state, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties lacerating their common country. Should the sovereign conceive he has the right to hang up his prisoners as rebels, the oppo*540site party will make reprisals; if he does not religiously observe the capitulations and all other conventions made with his enemies, they will no longer rely on his word. Should he bum and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation.” (Vattel’s Law of Nations, 424.)
The reasoning of this profound writer on international law, if it had ever been doubted, would be fully vindicated in the history of this country in the last seven years.
There was a hostile array of two sections of the country of such magnitude as not only to demand the observance of the rules of civilized warfare, but a full compliance with the authority quoted, in each granting to the other all the rights of belligerent powers.
To the same effect are the decisions of the supreme court of the United States. In the Prize Cases, as they are called, decided early in the war, (1862,) the public law of nations was, in the opinion of a majority of the court, applicable to the then existing condition between the two sections of the country, and was so even before a formal declaration of war by congress.
Tn these cases the point of difference between the learned judges, the majority and the minority of the court, at the important point, was as to the legality of all war measures by the President before a formal declaration of hostility between the United States government and the revolted states had been made by congress. The majority of the court was of opinion that “ a civil war is never proclaimed eo nomine against insurgents,” and that “ by the constitution, congress alone has the power to declare a national or foreign war,” and therefore sustained the President in his proclamation of the blockade of the ports of the southern states, under which the seizures had been made, prior to the declaration of war by congress; and the minority of the court insisting that congress could alone authorize an *541act of war, just as I understand the constitutional objection in this case, on the part of my brethren of the bench who differ from me, to the power of the President to declare the emancipation of the slaves of the revolting states as a measure of war.
In one of these cases the claimant was a citizen of England, and it was urged in behalf of his claim, that without a formal declaration of war by congress the President had no authority to issue a proclamation blockading the southern ports, and that in fact he had no legal notice of the war or the blockade, and was not, therefore, by the public law of nations, responsible for disregarding the proclamation.
Mr. Justice Grier, who delivered the opinion of the court, said upon this point: “As soon as the news of the attack upon Fort Sumter, and the organization of a government by the seceding states assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the queen of England issued her proclamation of neutrality, recognizing hostilities as existing between the government of the United States of America and certain states styling themselves the Confederate States of America.
“After such an official recognition by the sovereign a citizen of a foreign power is estopped to deny the existence of a war, with all its consequences as regards neutrals. They cannot ask a court to affect a technical ignorance of the existence of a war which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government, and paralyze its power by subtle definitions and ingenious sophisms! ” (2 Black, 669.)
It was contended in these cases (Prize Cases) by counsel for some of the claimants, who were citizens of the insurgent states, that this property was not liable to seizure, because they were not technically “ public enemies,” even though they might be rebels and traitors to the govern*542ment; that insurrection is the act of individuals, and not of a government or sovereignty; that the individuals engaged are subjects of law; that confiscation of their property can be effected only under municipal law; that by the law of the land such confiscation cannot take place without the conviction of the owner of some offense; and, finally, that the secession ordinances were nullities, and ineffectual to release any citizen from his allegiance to the national government, and consequently that the constitution and laws of the United States were still operative over persons in all the states for punishment as well as protection.
To all this the court replied as follows: “This argument rests on the assumption of two propositions, each of which is without foundation on the established law of nations. It assumes that where a civil war exists, the party belligerent, claiming to be sovereign, cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being sovereign, he can exercise only sovereign rights over the other party.
“ The insurgent may be killed on the battle-field or by the executioner; his property or land may he confiscated by municipal law; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, because it is ‘unconstitutional’ — [the very argument used by my brethren from whom I dissent in this case.j Under the very peculiar constitution of this government, although the citizens owe supreme allegiance to the federal government, they owe also a qualified allegiance to the state in which they are domiciled. Their persons and property are subject to its laws.
“Hence, in organizing this rebellion, they have acted as states, claiming to be sovereign over all persons within their respective limits, and asserting a right to absolve their citizens from their allegiance to the federal government. *543Several of these states have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign state. Their right to do so is now being decided by wager of battle. The ports and territory of each of these states are held in hostility to the general government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this is enemy’s territory, because it is claimed and held in possession by an organized hostile and belligerent power.” (2 Black, 673.)
From these authorities, which I have so freely quoted, and from my knowledge of the character, magnitude, and duration of the war, the manner in which it was conducted by the parties engaged in the contest, with all the prominent incidents connected with it to its close, of which, as a matter of public history, I must take judicial knowledge, 1 am at no trouble to determine that it was a “ civil war ” of vast proportions, in which the contesting parties respectively were entitled to and were accorded all the rights of belligerents, according to the established public law of nations. And, as resulting from this necessarily, that the successful belligerent may rightfully claim and exercise all the powers accorded to a conqueror under the laws of war. That less is claimed is an act of magnanimity on the part of the conqueror, which should elicit gratitude rather than abuse. What is claimed, however, must be respected.
To the same effect are the cases of Mrs. Alexander, in 2 Wallace, and the still later case of Mauran v. Insurance Company, in 6 Wall., 13. In this last case, Mr. Justice ¡Nelson, who delivered the opinion of the court, remarked, in speaking of the rebellion and character of the war: “A government in fact was erected, complete in the organization of all its parts, with sufficient resources of men and money to carry on a civil war of unexampled dimensions. *544* * The so-called Confederate States were in the possession of many of the highest attributes of government.”
Thus, in few words, the supreme court of the United States have settled the question of civil war and de facto government, about which a great deal has heretofore been very foolishly said.
There seems to be a great deal of misapprehension in the minds of many persons as to the legal or political effect of admitting that the insurgent states did in fact for a time secede or withdraw from the Union. I am not of those who believed in the doctrine of legal secession, or that it could rightfully occur, except in ease of wrongs, oppression, and tyranny, such as would confer upon the injured the sacred right of revolution, defensible upon the moral ground of duty and self-preservation, nor do I believe there was justification, cause, or excuse for the rebellion.
But the question is as to a fact, not as to the law which' justified or condemned it. If men and nations could do nothing contrary to law, how happy, comparatively, would be the condition of society.
The revolting states did practically, not legally, withdraw from the Union, by severing their political connection with it; they did expel from their limits the flag.of the United States, its courts and officers, civil and military, and erected a new government in its stead, with a constitution, a president, a*congress, a judiciary, and officers, state and confederate; organized vast armies, equipped and put them in the field; and for four years contested the palm of final victory with the United States on more than three hundred bloody fields, in a war which is admitted to have been the most gigantic of modern times. It is too late for those who were engaged on the confederate side to insist now that they have always been in the Union, and that, therefore, the condition of the revolting states has not been changed. There are many citizens of this state who, adhering to the United States, found it necessary at *545an early period of the war to seek the protection of its flag, who could testify that they performed weary pilgrimages of hundreds of miles, by land and water, before their hearts were gladdened by its sight. It is too late for the United States to dispute the fact of secession or a partial disruption of the government in the revolting states during the period of the war.
We have seen that it was not, in the opinion of the United States supreme court, “ a loose, unorganized rebellion,” but a great “ civil war,” in which each of the parties had belligerent rights. And we have seen, also, the conquering power proceeding to reconstruct new state governments in the states engaged in the rebellion. Upon what ground is this power on the part of the United States to direct the organization of “new state governments” based, if not on the public law of nations, as the conqueror in the late struggle? Surely none will contend that an “unorganized, loose rebellion” would confer such power. Resistance to the just authority of government in such a case, when overcome, would leave the laws, institutions, and machinery of the state governments unaffected and ready to perform their appropriate functions, and with no new power acquired by the national government. But in this case the conquering power has said that in the late insurgent states “ no legal state governments exist.” Why? But one valid reason can be assigned, and that is that, by the act of withdrawal from the other states forming the United States, and their organization into a confederacy, a new government, hostile to the old government, they destroyed their character as “states of the Union,” and left them at the close of the war as conquered public enemies, with governments defacto, subject to the will of the conqueror. In the meantime it must be remembered that the United States government lost none of its rights,, authority, or jurisdiction over the territory and people of the insurgent states by reason of their withdrawal; the *546government was only prevented by force for a time from exercising them.
The United States never acknowledged their right to secede, but, on the contrary, persistently denied it; and the fact of their being out was incontestibly established by the blood and treasure which it cost to bring them back.
To recur once more to the opinion from which I have so largely drawn, (Prize Cases, 2 Black): “Several of these states,” said Mr. Justice Grier, “ have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign state. Their right to do so is now being decided by wager of battle.” The thing was done, the right to do it was denied, and that question of right was decided by wager of battle against the confederacy.
The conquering power has now a right to demand that the policy which they were constrained to adopt during the war, as well as subsequent measures, shall be respected. It is a part of the history of the war, known to this court and to the whole civilized world, notwithstanding some feeble denials, that slavery was the cause which produced it. There may have been and probably were other objects and. purposes in the mind of a few of the leaders of the rebellion; but the masses of the people of the South, who engaged in the struggle, as a vast majority did, either voluntarily or by compulsion, did believe, as they were told by the most prominent actors in getting up the great drama, that the separation was necessary to the security of the institution of slavery.
bTo other wrong was complained of against the non-slave states, except their alleged disposition to war upon the rights and interests of the South in respect to this institution; and I do not believe that upon any other ground or pretext the people of the South could have been persuaded or induced to engage in rebellion against a government to which no one of them could impute an act of oppression or injustice to any state or citizen.
*547"When the war occurred it was the business of the United States to take such measures as would most certainly, in its judgment, overcome the rebellion.-
The war had progressed with varied success for nearly eighteen months, and had assumed vast proportions on either side, before it was determined upon, as a measure of war, by the United States, to declare the emancipation of the slaves of the South. It was of course, so far as the power was concerned, predicated solely upon the rights of the government under the laws of war. That it was felt to be an act of justice to the slaves, when made necessary by the exigencies of the war, by the President of the United States, may be inferred from the last paragraph in his memorable and final proclamation of emancipation of the 1st January, 1863, and that as a measure of war it was resorted to.
It has been said in argument that the President could have meant no more by his proclamation than an invitation to the slaves to éngage in the war on the side of the government against their masters; that he could not have believed that under the constitution he had the power to declare their freedom upon the success of the national arms. I can but regard this as an injustice to the memory and character of that illustrious man. He was the executive head of the United States, commander-in-chief of the army and navy, sworn to execute the laws, to suppress rebellion and repel invasion; he found himself confronted by a rebellion embracing eleven states in open resistance to the national authority. These states had organized a hostile government, which had initiated and was prosecuting against the United States a gigantic war for its final overthrow; a rebellion and war initiated and carried on in the interests of slavery; a contest in fact between freedom and slavery, and which demanded every energy and resource which the executive possessed or could command to sustain even the existence of the government; and, after *548long deliberation with his cabinet and the representatives and senators of the loyal states, determined, as a necessary and proper measure of war,- to make war upon the institution for the interests of which the national life was assailed.
And what is the purport of this great instrument, which will through time, no matter what may be said to the contrary, be regarded as the fiat of freedom to four millions of slaves and to their descendants forever?
After reciting the preliminary proclamation of the 22d of September, the proclamation of the 1st of January, 1863, proceeds: “How, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested, as commander-in-chief of the army and navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a' fit and necessary war measure for suppressing said rebellion, do, on this 1st day of January, in the year 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the day first above mentioned, order and designate, as the states and parts of states wherein the people thereof respectively are this day in rebellion against the United States, the following, to Wit:” (then mentioning the states and parts of states, including Texas) proceeds: “Andby virtue of the power, and for the purpose aforesaid, I do order and declare, that all- persons held as slaves within said designated states and parts of states are, and henceforward shall be, free;” and then this noblest paper since the declaration of independence by our forefathers, and which, like that, was to be sustained and enforced at the cost of blood and treasure., concludes with this solemn assertion and invocation: “and upon this act, sincerely believed to be an act of justice, warranted by the constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.”
*549And yet we are told that this could not have been meant seriously. A president, acting under the obligations of his oath of office, in the midst of a war which threatened the existence of the government, and in reference to the very cause of the war, declaring it to be a fit and necessary war measure, that the slaves in the revolting states “ are and henceforward shall be free,” and then solemnly invoicing the considerate judgment of manldnd and the gracious favor of Almighty God, was, in my judgment, the most imposing, responsible, and noble act ever performed by a president of the United States, and will ever be so regarded in the history of our country. It received the approbation of the Christian world and the favor of the God of battles.
And can it be thought that while the President could not, as a war measure, constitutionally destroy the property in slaves of those engaged in rebellion, he could employ that same property as soldiers to make war upon the owners ? If this be so, it rests upon some principle entirely unknown to writers upon international law and the laws of war.
How was the act “warranted by the constitution upon military necessity ? ” Ho intelligent man would seek in the constitution for a detailed or general statement of the war powers of this government, for they are never expressed in the constitution of any government. The power to make and to resist war is necessarily inherent in all governments, and when the declaration of war is made by the proper authority, it carries with it and draws to the government every right and all the powers of a belligerent under the laws of war and the public law of nations.
The provisions of the constitution of the United States upon this subject are to this effect, as contained in the specific grants of power to the congress, viz:
“To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water :
“ To raise and support armies, but no appropriation of *550money to that use shall be for a longer term than two years;
“To provide and maintain a navy;
“ To make rules for the government and regulation of the land and naval forces;
“ To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions ;
“ To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States,” &c. (Nos. 11,12, 13, 14, 15 and 16 of the enumerated powers, sec. 8, art. I, Paschal’s Annot. Const.) To which may be added the first clause of the 2d section of article IT, which provides that “the President shall be commander-in-chief of the army and navy of the United States and of the militia of the several States when called into the actual service of the United States,” &c.
Now, if it were true that no power could be properly exercised by the government when engaged in war except those expressed in the above provisions, construed as excluding all incidental powers resulting from the laws of war, its condition would be deplorable, if not utterly hopeless.
It is a well-established rule of the public law of nations that, “ from the moment one state is at war with another, it has, on general principles, a right to seize on all the enemy’s property, of whatever kind and wheresoever found, and to appropriate the property thus taken to its own use or to that of the captors.” (Law. Wheat. on Int. Law.)
The President, as commander-in-chief of the army and navy, and his subordinate military and naval officers, were not dependent upon the constitution or acts of congress for the manner in which the war was to be conducted, or the plans and policies during its progress which they .might deem best calculated to bring it to a successful ter*551mination, always provided their action did not transcend the recognized laws of war and the laws of congress; that congress might by legislation have modified the rights of the government under the laws of war may be admitted. It is enough that it was not done. On the contrary, the entire legislation of congress, both before and after the issuance of the proclamation, furnishes indubitable evidence of the approval and concurrence of that department of the government in the act.
I maintain that it had the sanction of every department of the government.
The authority to issue it is, I think, fully borne out by the opinion of the majority of the supreme court of the United States in the Prize Cases, 2 Black; and that it met the full sanction and concurrence of congress and of the people of the nation is established beyond question.
This proclamation of emancipation, thus warranted by the laws of war, fully expressed the will of the United States government as a belligerent upon the subject embraced in it. It was, that from and after that date the former slaves in the insurrectionary states and districts (including Texas) should thenceforth be forever free.
Hone will dispute the fact that its enforcement depended entirely upon the success of the armies of the United States over those of the Confederate States. It could only be made effectual by force of arms. But if it was a measure allowable by the laws of war, and emanated from and was authorized by proper authority, and was carried into effect by force of arms, it was thenceforth the law of the land, unless abrogated by the conquering power.
It was a proper war measure, for it is allowable for one belligerent to dispossess the opposing belligerent of whatever conduces to his strength. Property generally is a legitimate prize of war, and especially such as will tend to strengthen the captor or weaken his adversary. (Wheat. on Int. Law, 598.)
*552All must admit that a heavy blow was inflicted upon the rebellion by this proclamation — one under which it staggered and finally fell.
Was it issued by proper authority? The war-making power of the government sanctioned it, and the executive and commander-in-chief of its .armies, then numbering in the field four hundred thousand men, engaged in deadly strife with the owners of these slaves, constituting the most influential portion of the Confederate government, issued and promulgated it.
What legal effect is now to be given to it? Is it to be respected by the courts of this state, or shall they deny its binding force? I am of opinion that it is not waste paper, and will never be so considered while republican government is maintained in this country. I have said that the force and effect of the proclamation depended upon the success of the arms of the United States; but it is equally true that success did give it effect. The United States, in the contest, had both sovereign and belligerent rights. Every citizen, therefore, of Texas, was put upon notice of this proclamation, and disregarded it at his peril; we mean a flagrant and contemptuous disregard, for we can well conceive that it might and most probably would have been dangerous for a citizen at any time in Texas, prior to the actual presence of the military forces of the United States, after the close of the war, to have publicly renounced his right to his former slaves under the President’s proclamation, and even more dangerous for a former slave to have attempted any assertion of his freedom.
But the inquiry is as to those who derided the power and authority of the United States and the proclamation of the President, and defiantly engaged in the traffic of the purchase and sale of former slaves. As to executed contracts of this sort, however reprehensible they maybe, it is a matter of no concern to the courts of the country or to the laws of the land, provided the persons who were bought and *553sold have in fact obtained their freedom. If A had bought in 1866 persons in Texas as slaves, and had paid for them $10,000, under the belief or hope that by some chance they might still be held as slaves, and, finding himself mistaken, should bring his suit to recover back the money upon the warranty of title that they were slaves for life, he would be informed that he had engaged in a contract against law, public policy, and humanity, and therefore could receive no aid from a court of justice.
Does the party who sues to recover the purchase-money for persons sold in this state as slaves at that date occupy a better position? I think not. He knew when the sale was made that the United States government, his rightful sovereign, had declared them free; but he put himself upon the chances of the success of the revolution and overthrow of the authority of the United States. There let him rest. He and all others similarly situated ought not to ask the courts of the country to aid them in the consummation of an outrage upon humanity, and a flagrant insult to a much-injured and forbearing government.
The question here is not as to the moment of time when the former slaves in Texas actually obtained their freedom by the events of the war; but it is whether now the courts will aid in carrying out and enforcing contracts against the public policy of the government, pronounced in the most solemn form as both sovereign and belligerent in a great civil war.
It is very true that if the United States had failed in the contest the former slaves would not now be free, for this right of declaring them free, as a measure of war, rested upon precisely the same means for its enforcement that every other right which they claimed in the southern states of necessity rested: that means was their military force. All their rights of property, jurisdiction, and sovereignty in the revolted states had to be thus determined. It will not be controverted that a law passed by the congress of the United *554States during the war, levying a tax upon the insurrectionary states for an annual amount fixed for each of said states, could he collected. This, in fact, was done, and has" been in part paid; at least in this state. This law was as much dependent for its final execution upon force as was the deliverance of the slaves from bondage under the proclamation. All war measures depended upon force as the means to give them effect.
This act, as important as any in the history of nations in modern times, was put into practical force and effect immediately upon the suppression of the rebellion. It was acquiesced in by the whole people of the nation, north and south, who beheld the grand spectacle of four millions of bondsmen, by virtue of its provisions, coupled with the presence of actual power which gave it efficacy, suddenly transformed into citizens breathing the air of freedom.
Still I am told that this cannot be so, because the constitution would not permit it. I reply the living historical fact that the thing was accomplished, a fact, known to all the world; and while I believe that there was full constitutional authority for the act as a war measure, yet, even if I doubted this, I would not as a judicial officer deny the binding force of a great public act of the executive and commander-in-chief of the army and navy, performed in time of war for the safety of the nation, sanctioned directly or indirectly by every department of the government, and approved or acquiesced in by the whole people, and applauded by the civilized world. There is no ingenuity of reasoning, no power of logic, that will ever be able to overturn the fact, that by force of arms, authorized by the proclamation, slavery was destroyed in Texas.
We have been referred to many authorities in support of the proposition that these contracts should be enforced, but to my mind none are applicable to the case.
We are referred to the opinions of Chief Justice Chase in the matter of Elizabeth, in Maryland, and of Mr. Justice *555Swayne in the case of the United States v. Rhodes, in Kentucky, as establishing the proposition that slavery was not abolished in Texas or elsewhere in the south until the adoption of the Xinth article of amendment to the constitution. These cases do not touch the question of the effect of the proclamation of emancipation, for the simple reason that the states where they originated and were determined (Maryland and Kentucky) were not included in the proclamation of emancipation.
The question of the freedom of the parties concerned in these cases was, therefore, properly rested on the XITEth contitutional amendment.
It has been urged in argument, also, that the XJUULth amendment was proposed and adopted to accomplish what the proclamation and the successful arms of the government had failed to accomplish. I do not so understand it. There were certain states and districts, or portions of states, not included in the proclamation, where slavery continued to exist, in fact and in law, after the close of the war, and the sense of the nation, after witnessing the harvest of blood which the institution had produced, was unwilling that it should exist any longer anywhere within the jurisdiction of the government, and to extinguish it in those states and districts, and to prevent its re-establishment for all time to come anywhere in any of the states or territories, was the object of its adoption.
I am asked to point to the provisions in the constitution of the United States which authorized the proclamation. If I have made myself understood, this has been answered. But, in farther answer, I reply, The same provisions which conferred authority upon the President to send hostile armies into the midst of the southern states to make war, to seize and destroy property, and, if need be, to desolate the land to maintain the national authority.
These things could not have been done in time of peace, any more than the emancipation of slavery, without a viola-; *556tion of the constitution, but in time of war they were properly done.
The contract sued on was, in my opinion, entered into against the public policy, rightfully proclaimed in time of war, for the salvation of the government, and should receive'no countenance in any court of this country.