(dissenting.) — 1. I do not feel able to agree *64with the majority of the court in the judgment just announced, nor in the reasoning upon which it is based.
2. In the view I take of this case, the material facts are these: William S. Mudd, as the administrator of the estate of James A. Mudd, deceased, instituted suit in the circuit court of Jefferson county, in this State, against Wallace S. McElvain and others, on the 25th day of February, 1867. This suit was founded upon a promissory note for the payment to said William S. Mudd, as administrator aforesaid, of the sum of five thousand, three hundred dollars, three years after the date of said note, which bore date the first day of February, 1864, with interest thereon from the date, at eight per cent, per annum. This note was made in this State, and it was given for the purchase-money of three persons sold as negro slaves in this State, in said year 1864. The cause was removed, by agreement of the parties, from the county of Jefferson to the county of Shelby, in this State, and there tried in March, 1868. The judgment was for $7,054, besides costs of suit.
3. On the trial, the defense relied on was the invalidity of the note, as a contract for the sale of slaves made since the first day of January, 1863. This defense renders it necessary to consider the effect of Ordinance No. 38 of the convention of 1867, and the effect of the emancipation of the slaves in this State upon such a contract. The ordinance referred to is entitled “ An ordinance concerning the value of contracts, where the consideration was Confederate bonds or currency, and for the purchase of slaves,” passed December 6th, 1867. — Pamph. Acts, 1868, pp. 185, 186. In treating of this ordinance, I will refer, incidentally, also to the validity of contracts for “ Confederate money,” though that question is not involved in this case, as it is now presented to this court.
4. After the passage of the ordinance of secession, on the 11th day of January, 1861, the new political organization which was formed in the State of Alabama, was unlawful and revolutionary towards the government of "the United States. It had no constitutional connection with this latter government. It did not form the government of a State of the Union, though it was within the boundaries *65of the United States and upon the territory of the State of Alabama. Such a political organization has no rights under the constitution of the United States. — Tiffany on Gov. pp. 314, 315, 316, 317; Cherokee Nation v. Georgia, 5 Pet. 1; Hepburn et al. v. Ellzy, 2 Cr. 452; Owings v. Speed, 5 Wheaton 420; Herman v. Phelan, 14 Howard, 79. This government then being illegal, every department of it was also illegal. The whole being bad, the parts were bad also. Quad ma/jori non valet, nee valet in minori. — Coke, (Litt.) 262. It therefore follows, that its legislative acts, its judicial proceedings, and its executive proceedings, were all invalid, unless confirmed by the rightful authority— 5 How. 343; 7 How. 1; 7 Wall, 700.
5. If the reverse of this were true, then secession and the proceedings under it were rightful and legal. But this has been denied by every branch of the Federal government, and by this State, since its restoration, in every department of its government. — Ordinance No. 13 ; Revised Code, p. 55 ; Ordinance No. 16; Pamp. Acts, 1868, p. 167; Proclamation of Gov. Patton, Feb. 13,1866; Hall v. Hall, at June term, 1869; Chisholm v. Coleman, at January term, 1869.
6: This unlawful and revolutionary government was overturned in the year 1865, at least as early as May of that year. During the interregnum, from the 11th day of January, 1861, until the insurgent organization was destroyed, there was no legal government in this State; and whilst this period lasted, the customary seats of administration being in possession of the rebel authorities, no steps could be taken by the rightful government, to prevent an illegal use of the legislative, judicial and executive functions of the government administered in this estate, until this illegal government should be suppressed. This was, then, a period of time, during which the powers of the State, as a member of the Union, were suspended, though they were not destroyed. Thus, the legislative power of the rightful government was deprived of an opportunity to discharge its legitimate functions. Under such circumstances, many things might have been done, under pretense of authority, which might not have been permitted under the rightful *66government; or which the rightful government might have refused to allow, had the power to act remained within its control. And, undoubtedly, what the rightful government could have forbidden, it may now, on its restoration, refuse to sanction. There is no doubt, that the rightful government could have emancipated the slaves, and could have refused to permit the making of contracts for the sale of slaves within its own borders —Jones v. Slaughter, 15 Pet. 449; Roman v. Reynolds, 5 How. 134; Cobb on Slavery, (Historical Sketch,) p. clxxi, (171,) et seq.; McCutchen v. Marshall, 8 Pet. 220; Butler v. Hopper, 1 W. C. C. 499; 2 Kent, 252, and notes. And upon a like principle, the rightful government might have refused to permit contracts for the circulation of the bonds and treasury-notes of the so-called Confederate States; or it might have refused to allow a hostile government to set up its courts within its borders; or to give validity to the judgments and sentences of such courts. These are powers that belong to all the States. They are rights which are inherent in that sovereignty, which is an essential element of State authority.— Craig v. Missouri, 4 Pet. 410. 462, 463, 464; 3 Dal. 6.
7. Then, most clearly what the State may have refused, it may deny to an usurper, who has illegally displaced its authority. The rightful State is not to be deprived of the power to regulate its own policy and its own domestic affairs, by an illegal authority. If it can not act by way of prevention, in the first instance, it may act by way of cure, in the end. The rightful authority is not to be paralized and defeated by the assumed authority of a mere attempt at revolution. At least, the courts in this country, can not, without the aid of legislation, set up and validity the proceedings of a revolutionary government. — 5 Howard, 343 ; 7 How. 1.
8. It is to be presumed, that the rightful authority of the State would have acted within its rightful sphere. With it, the policy of the nation, for its preservation, would have been the policy of the State. This was the case of all the loyal States, and of West Yirginia and Missouri, which were slaveholding States, that remained loyal to the Nation. This is what all the States have done that have returned *67in good faith to their obedience to the national constitution. Then contracts for the circulation of Confederate bonds and treasury-notes would not have been permitted or sanctioned by the rightful government; because they were opposed to the public policy of the nation, and were void. — Kennett v. Chambers, 4 How. 38; Benj. on Sales, 384. And slavery would have been abandoned when the policy of the national government required it, for its own peace and safety. For in a national sense as well as in an individual sense, solus populi suprema lex. Therefore, the power of the rightful State to judge of this, and to act as it may think best, is not to be controlled by the interposition of an illegal, insurgent power. Else the loyal sovereign will of the State may be illegally defeated. — 1 Story on Const. § 208; Chisholm’s Ex’r v. Georgia, 2 Dal. 419, 471.
9. What then the State could have forbidden, but was prevented from doing, in consequence of the illegal suspension of its authority by the insurrection, it may prevent from being consummated, as soon as its authority is restored. Otherwise, the irregular and insurgent government must become paramount to that which is legal and regular, and the legal sovereign authority may be set at naught. This would be absurd, and invite to revolution. No government can control its own affairs under such a system, if the rightful authority is thus subject to be displaced and defeated by insurrection or rebellion. In order to prevent this defeat of the rightful legislative will, the rightful government must retain within itself the power, upon its restoration, to deny validity to all the acts of the rebel organization, by whatever name it may be called. And this power must not only extend over the period covered by the supremacy of the rebellion, but it must also apply to the whole period from the suspension of the functions of the rightful government until its permanent restoration After the full and perfect restoration of the government, and not till then, is the State subjected to the control of the rightful authority, which represents the loyal sovereign will, and which is the supreme and governing power of the State, under the limitations of the constitution of the Union. Eeconstruction Acts of Congress; Preamble of the Aet of *68March 2, 1867; Act of July 19, 1867, § 1; President Johnson’s Proclamation, June 21,1865, clause numbered “first Gov. Parson’s Proclamation, July 20, 1865, clause numbered “4;” Revised Code, pp. 73, 76.
10. Tried by these principles, it seems to me beyond all question, that the ordinances numbered 38 and 39 of the convention of 1867, so far as they relate to the judgments therein mentioned, are free from constitutional objection, and they are to this extent binding on the courts until repealed. The judgments of the rebel courts condemned by the ordinances above referred to are void, because they are the acts of a void judicial authority. — Lofft. 453. This is what the convention declared, and this it had the authority to do. If not, then these a.cts of an illegal and void power would be beyond the rightful legislative control. They would defy the control of the rightful sovereign will for their correction, should it be discovered that they were wrong. Such an example of the ratification and approval of the authority of a mere insurrection is not to be found anywhere supported by any declaration of the congress, or the judgments of the highest courts of the nation.
11. The legislative authority of the State is the sole and supreme law-making power, for the control of its domestic affairs ; and where this authority is not limited by constitutional restrictions, it is practically absolute. The ivhole law-making power is vested in the legislature, and whatever laws are needful to be enacted must come from this authority. — Cooley on Const. Limit, pp. 167, 168, 169, and notes ; Const. Ala. art. 4, § 1. The constitution was not made to protect the judgments of rebel courts, or the judgments of illegal governments. And where they are not so protected, they are at the mercy of the legislative power of the rightful authority.
12. But besides this, the second section of ordinance No. 38 is in these words : “ Be it furtlxr enacted, That all bills, bonds, notes, or evidences of debt, outstanding and unpaid, given for or in consideration of bonds or treasury-notes of the so-called Confederate States, or notes or bonds of this State (to be) paid and redeemable in bonds or notes of the Confederate States, are hereby declared null and *69void, and no action shall be maintained thereon in the courts of this State.” — Pamph. Acts, 1868, p. 186. It is known to the court, as a part of the history of the late war, that these treasury-notes and bonds of the said Confederate States Were issued and circulated in aid and support of the rebellion, and that they furnished the means by which the insurgent soldiery were chiefly, if not wholly paid, and supplied them with the means of subsistence. It is also known, that, varying in amount, denomination, date, number and signature, the said treasury-notes were in the following words: “ Two years after the ratification of a treaty of peace between the Confederate States and the United States of America, the Confederate States of America will pay twenty dollars to the holder, on demand. A. No. 36,-349. Richmond, February 17, 1864. S. Selot, for the register. S. M. Cants, for the treasurer.” It is doubtful whether these notes will ever become due, and consequently they are utterly worthless.
13. It is also known, that these notes and bonds came into being as instruments of the rebellion ; and were issued mainly for the purpose of paying the expenses of the insurgent government, and not for the purposes of legitimate commerce. Such a purpose was in contravention of the policy of the government of the United States. Their issuance and circulation was therefore illegal. All contracts to aid an illegal purpose are tainted with its illegality — 1 Par. Contr. p. 456. They were therefore void. This the State, by law, could declare, without any violation of the constitution of the United States. — Davidson v. Lanier, 4 Wall, 447; Brown v. Tarkinton, 3 Wall, 377; Nordlington v. Vaiden, 2 Amer. Law Rev. 188; Bank of Tenn. v. Union Bank, 2 Amer. L. R. 346; Ex parte Miller, 16 Amer. L. R. 371; Tufts v. Tufts, 3 Woodb. & Minot, 457.
14. The ordinance in reference to the sale of slaves, is one of more difficulty than that in relation to judgments ; because it involves the consideration of the constitutional provision for the protection of contracts.
15. It cannot now be denied that slavery is abolished in this State, and that the slaves are all made free. Nor will *70it be denied that emancipation has been effected by the act of the nation. This is the repeated admission of this court; and under its present organization, it is not to be presumed that the correctness of this admission will be questioned. There may be some difference of opinion in regard to the manner in which emancipation has been brought about, and the precise date at which it took effect, but none that it has been accomplished. — Miller v. The State, 40 Ala. 54; Nelson, Adm’r, v. Morgan, Adm’r, June term, 1869.
16. The first great national act that assailed the institution of slavery, as a whole, in this State, was the proclamation of President Lincoln, issued on the first day of January, 1863. This proclaimed the absolute and unconditional emancipation of the slaves in certain portions of the Uni-' ted States, of which the State of Alabama was a part. The government was then in the midst of a fierce struggle for its preservation, and this great measure was deemed necessary for its success in that struggle. After that date, it became the policy of the nation to enforce this proclamation ; and it was persisted in until it was finally successful. It may be said, that such a measure was founded in revolution and force; but this does not destroy its rightfulness nor its effect. The nation achieved, in the end, what it had proclaimed. In such cases, it is a rule almost without exception, that the effect of such measures must be referred to the beginning, or to the first proclamation of the purpose intended to be accomplished. The American colonies proclaimed themselves free and independent States, on the 4th day of July, 1776. They did not, however, achieve their independence until the end of a long and bloody war, which lasted for above seven years, until September 3d,-1783 — Dec. of Ind., Revised Code, pp. 1, 3 ; Wilson’s Amer. Hist. 358, 408. Yet, in law, the effect of the proclamation of independence is referred to the fourth day of July, 1776.— McIlvaine v. Coxe, 4 Cranch, 209. The same is the case with the construction of treaties. Though they are not completed until ratified by the consent of the Senate, and would be invalid without that ratification, (Const, of U. S. art. 2, § 2, cl. 2,) yet in their operation they are held, in *71law, to take effect from their date.— United States v. Regnes, 9 How. 127; Davis v. Parish of Concordia, 9 Howard, 280; Montault v. U. States, 12 How. 47; U. States v. Daulerive, 10 How. 609.
17. Referring to emancipation, Chief-Justice Chase, delivering the opinion of the court, in the case of Texas v. White, says : “ Slaves in the insurgent States, with certain local exceptions, had been declared free by the proclamation of emancipation; and whatever questions might be made as to the effect of that act, under the constitution, it was clear from the beginning that its practical operation, in connection with legislative acts of like tendency, must be complete enfranchisement. Wherever the national forces obtained control, the slaves became freemen. Support to the acts of congress and the proclamation concerning slaves, was made a condition of amnesty by President Lincoln, in December, 1863, and by President Johnson, in May, 1865. — 13 Stat. at large, 737, 758. And emancipation was confirmed, rather than ordained, in the insurgent States by the amendment of the constitution prohibiting slavery throughout the Union, which was proposed by congress in February, 1865, and ratified before the close of the following autumn, by the requisite three-fourths of the States.” 13 Stat. at large, 774, 775; 7 Wall. 728.
18. But besides this confirmation of the proclamation of emancipation above referred to, it is a well known historical fact, that before the issuance of that instrument many of the slaves of this State had become entitled to-freedom under the operation of the fourth section of the act of congress of August 1st, 1861.
19. The proclamation was but the culmination of the policy of the several acts of congress which had preceded it, and which had the same tendency and purpose. By the act of August 1, 1861, all slaves who were used in any military or naval service against the government of the United States ;were made free. — 12 Stat. at large, 319. So were the slaves of all persons engaged in the rebellion. And fugitives from labor were not to be returned. — Act of congress, July 17, 1862, §§ 9, 10; 12 Statutes at large, 591. President Lincoln’s amnesty proclamation of December 8, *721863, required the parties seeking to avail themselves of its benefits to swear, “to abide by and faithfully Support” “ all the acts of congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, or held void by congress or by decision of the supreme courtand “all proclamations of the president made during the existing rebellion having reference to slaves, so long and so far as not modified or declared void by decision of the supreme court.” — App. to Acts of Congress of 1863-4, pp. 6, 7, 8. The amnesty proclamation of President Johnson, which bears date May 29th, 1865, was to a similar effect, and contains a like condition. The latter proclamation required all persons seeking amnesty and pardon under it, to swear as before, to “ abide by and faithfully support all laws and proclamations which, have been made during the existing rebellion, with reference to the emancipation of slaves.” How could this be done, unless the proclamation was accepted as of its date, and the acts ' of congress above cited in the like manner ? Most certainly, the oath of amnesty required this.
20. It is known to the court as an historical fact, that a very large majority of the white voters of the State have taken the benefit of the amnesty thus offered, and have complied with its terms. This was the most solemn confirmation and ratification of the proclamation of the first, day of January, 1863 ; and this could only be done in the language of the proclamation itself. Thus, the emancipation of the slaves in this State was fixed as of the date of that important State paper, .and we are in a certain measure estopped to deny it. This document declares, that “ all persons held as slaves,” in the State of Alabama, “ are and henceforth shall be free.” — Public Laws of the U. States, 1862-3, App. p. 3. This important system of measures from the year 1861 to the year 1865, shows that it was the purpose and policy of the government of the United States to abolish slavery in the insurgent States, and that this purpose was fixed to take effect on the first day of January, 1863, and that it was so accepted and confirmed, as of that date, by all persons who took the benefit of the amnesty *73above referred to, whieh constituted a large majority of the white male people of the State,
20. Then, all sales of slaves which occurred after that date were illegal, and this the ordinance properly declares. The sales were, moreover, against the public policy of the nation, and for that reason also they were illegal and void. Tool Co. v. Norris, 2 Wall. 45; Kennett v. Chambers, 14 How. 38; Nelson v. Morgan, January term, 1869.
21. The precise date at which emancipation took effect in this State being thus settled, I pass on to consider the influence of emancipation upon all agreements for the sale of slaves in this State, irrespective of the time at which they may have been contracted.
22. Slaves were held in their unhappy condition by a regulation founded in. force on the one hand, and weakness on the other. There was no positive statute of the State which ordained slavery. It was permitted and protected, but it was not created by legislative enactment. It was never a creature of the common law. It existed only as a local institution. The great founders of the government shunned the use of the word slave in the constitution, and the eloquent proclamation of independence openly defied the truth of the basis oh whieh slavery was founded. Slavery violated a great natural law; that is, that man is of necessity, for his own support, entitled to the proceeds of his own labor. It is said, that to seize the property of another is intrinsically immoral and unjust; and to invade what is rightfully in his occupation is esteemed a crime against a primary law of nature. If, then, it is a crime to seize one’s property, it can not be a virtue to deprive him of his liberty, which, in many instances, is his only means of acquiring that property. Then, upon all principles of right slavery was an injustice. — The Antelope, 10 Wheat. 120, 121; Ruthf. Insts. o.f Nat. Law, 240; Curtis, J., in Scott v. Sanford, 19 How. 624; Dec. of Ind. par. 2, Rev. Code, 1; Const. of Ala. art. 1, § 2; 1 Wooddes’ Lects. 15; Forbes v. Cochrane, 2 B. & Cres. 448; Somersett's Case, Loft’s Rep. 1; 11 Harg. State Trials, 339; 20 Howell, State Trials, 79; *74Jones v. Van Zandt, 2 McL. 596; Dig. 49, 15, 19, 2; Grot. de Jure Bel. L. 3, C p. 51.
23. Then, when the permission and protection on which this fabric of force and injustice had been erected, was withdrawn, it necessarily fell. For when the law fails, the right fails. — 3 Dal. 378. By the great national edict which withdrew the force on which the institution stood, the slave was not declared to be emancipated, but slavery was forever forbidden. The power that upheld it was withdrawn. The language of the fundamental law is this : “ Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.” — Const. U. S. article 13, § 1, Revised Code, page 22. This is not the language of repeal ; it does not acknowledge that slavery ever rested upon statute law, or upon right; but it denies its authority longer to exist. If any just legal power in the master, over the person claimed by him as his slave, ever existed, it takes this power away. It does not destroy the person held as a slave, but it destroys the authority of the master to hold him in subjection as such slave. It destroys the law of slavery altogether, and leaves the effects of this destruction to be determined by the States themselves.
24. In all sales, the intention and purpose of the parties is of the essence of the contract. In this, both parties must concur. There is no contract unless the parties thereto assent, and they must assent to the same thing and in the same sense. If one sells a slave for life, he asserts that he can pass such title, and he must be in a condition to make his assertion true; else the party who buys a slave for life does not get what it was his purpose to purchase. And the condition of such a sale is, that the vendor must make his title good, or the sale is violated on his part, and may be rescinded if the purchase-money is not paid, and the power to make title wholly fails. — 2 Parsons on Contracts, 278, 279, and notes. In the sale of all personal chattels, the law implies an affirmation by the vendor, that the chattel is his own, and that he can and will make good such title as he sells, and such as the buyer intends to purchase.— *75Cozzins v. Whitaker, 3 S. & P. 322; Benj on Sales, 474. And even without a warranty, it has been said to be the undoubted right of the buyer to recover back the purchase-money, on the ordinary purchase of a chattel, where he fails to get what he paid for; or if he has not paid the purchase-money, before the failure of the power to make title, he may refuse to do so, after the power to make title has failed or has become unlawful. The law will not make a party take and pay for what he did not intend or consent to buy. — Benj. on Sales, 308. The warranty is a part of the contract of sale; if this fails, then the sale fails with it. Here the power to make the warranty good, has wholly failed. It has become illegal and impossible, and the party bound by it is therefore released.— Glover v. Taylor, 41 Ala. 124; Perry v. Hewlett, 5 Por. 318; Ruthf. Insts. p. 144, § 39. Presb. Church v. City of New York, 5 Cow. 538; 2 Parsons on Contracts, pp. 674, 675.
25. Again, it is said, that no right can be founded on an injury or an injustice, or in violation of a law of God. This is a principle of common law, and though it may not heretofore have been applied in eases like the present, yet, there can be no doubt, if these contracts were based upon the sale of our more favored fellow-citizens, whose good fortune had colored their faces white instead of black, we would still treat it with marked respect, and very few would be found to stand up for the enforcement of the sales of the sons and daughters of the commonwealth, how long so ever they might have suffered in slavery. Yet, this is the question now under discussion ; and, possibly, an old, familiar and carefully cherished, prejudice may interpose to prevent us from feeling its enormity. — Ruthf. Inst. p. 17 ; Const. Ala. Art. 1, § 2 ; Broom’s Max. pp. 17, 18, (marg.)
26. But however this may be, it is certain that every contract, to have validity, must be founded upon a law. It is said that this law enters into it, and gives it its obligation.— Von Hoffman v. City of Quincy, 4 Wallace, 535, 550. And if this law, on which the contract stands, is repealed or abrogated, without exception in favor of such contract, the contract must fail, because it has no law to support it. If the law is taken away the obligation of the contract is *76gone. It is true that the State cannot assail a contract in this manner, by the repeal of the law on which it stands.— 4 Wallace, 535, supra; Green v. Biddle, 8 Wheaton, 92; Bronson v. Kinzie, 1 Howard, 319; Ogden v. Saunders, 12 Wheaton, 231; Sturgis v. Crowningshield, 4 Wheaton, 122; Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; Terret v. Taylor, 9 Cranch, 43; Pl. Bk. vs. Sharp et al., 6 How. 327; Beers v. Haighton, 9 Pet. 359; Mason v. Haile, 12 Whea. 373. But in this case it is not the State that has abrogated the law of these contracts, but the national government or the people, upon whom there is no such limit or restriction. -Evans v. Eaton, Pet. C. C. 322.
27. Whether the government of the United States had the right to abolish the law of slavery in this State, can not now be made a question, It has been done, and the present State government of this State is organized upon the ad-mission that it has been rightfully done. There is, then, now, no law in force to support these contracts for the sale of slaves in this State. The right to enforce, then, must rest upon law, or it fails. To say that they were once legal, and therefore remain legal, is not enough. It must appear that the law upon which they originally rested, still remains a law, or that in its abrogation they were excepted, or that there is some constitutional provision which protects them. But nothing of this kind can be shown. Stiblato fundamento cadit opus. — Jenk. Cent. Cases, 160; Hollingsworth v. Virginia, 3 Dal. 378. Upon the extinction of the law of slavery these contracts became illegal, and a contract which is illegal, is void, in law. This is what the ordinance above referred to declares ; and it violates no clause of the constitution of the United States or of this State.
28. Again — that which operates upon the consideration of a contract effects the contract itself. If the consideration fails, the contract fails. Here the character of the person sold was of the very essence of the consideration of the contract. The sale was that of a slave for life. This was the main and sole condition of the sale. It was the cause and .purpose of the sale, and it constituted the *77entire consideration of the promise to pay the purchase-money by the vendee. The purchaser did not contract for the services of the person sold, but for the person himself, as for a horse or a mule — as for a thing constituting an article of property subject to perpetual continuance in the condition of a slave for life, so long as life lasted. This was the whole intention, expectation, and purpose of the sale; and this it was the purpose of the warranty to defend and make good. If this purpose is defeated, then the sale is defeated, and it does not effect what both parties intended it should accomplish. That the purpose and the expectation of the parties to the sale have been defeated, it would now be idle and reckless to deny. The purpose of the sale has been rendered illegal and impossible by the law — by the will of the supreme power in this-State. It has wholly broken down the contract of sale on one side by rendering it illegal to fulfill it. Such legislation abrogates the sale. — 5 Cow. 538, supra; 2 Pars. Contr. 674, 5th ed.
29. It must be admitted that the status of the person sold, who created the whole consideration of the contract of the sale, has been changed by law, or which is the same thing, by the national will — which is law in this case. This change has defeated the purpose of the contract. It has rendered that purpose unlawful. This is similar to the case, where a party agreed to import goods within a certain time, and before the time arrived, the government interposed by embargo, and made the performance of the agreement unlawful. This would put an end to the contract. It would repeal it. This case is almost identical in principle with such a case as that. Here the vendor can not do what he promised to do — that is, make the person sold a slave for life. — Pars. Contrs. 5th ed. p. 674; Presb. Church v. City of New York, 5 Cowen, 538; Brewster v. Kitchen, 1 Ld. Raym, 317, 321; 1 Salk. 189.
Emancipation was an assault, by the law, upon the consideration of the contract of sale which destroyed it. This causes the contract to fail, and overturns the mutuality of the agreements which constituted the sale. It suffers the plaintiff to be released on his part, and then to turn round *78on the defendant and compel him to perform his part of the agreement of sale ! There is, I apprehend, no admitted principle of law that sustains this result. It is radically wrong and unjust. And whatever we may think to the contrary now, the time will come, and is even now at our doors, when this outrage upon principle will be denounced and driven from our courts, where justice, in this absence of a statute, should be the measure of a law. Equum et bonum cst Lex Legum. — Hob. 224; Const. Ala. art. 1, § 15.
30. A contract consists of a promise, a consideration, and a condition — (Daniel Webster) — and in all contracts of mutual benefit, whatever obligation one party is under to give or to do, it is undertaken upon condition of his receiving the equivalent agreed upon. If, therefore, he fails to receive such equivalent by the other’s non-performance or inability to perform, the condition fails, upon which he consented to be obliged, and he ceases to be longer under obligation. — Ruthf. Insts. p. 141, § 36. Whilst the whole of the sale remains as the parties understood it, and intended it, with all the remedies on both sides unimpaired, as they were at the time the sale was entered into, then it would be just to enforce it on both sides ; but when the law intervenes and prevents this, the law breaks down this mutuality of obligation, and discharges the party on the one side. It also releases the party on the other. In a word, it puts an end to the sale as the parties made it, understood it, and assented to it. This destroys the sale. And so the ordinance of the convention, under discussion, has declared. The new facts which effect these contracts since emancipation, required a new rule to measure their force under these new facts. This could be supplied only by law, through the legislative power of the State. In this, the State could act without any restraint upon its sovereign authority, and may do what it pleases. The limitations upon the States are not to be extended by construction ; and a law will not be held to be unconstitutional, unless it is clearly and plainly so. — Falconer v. Campbell, 2 McL. 195; Hubbard v. N. R. R. Co., C. C. 84; Booth v. Town of Woodberry, 5 Amer. L. Reg. N. S. 202; Fletcher v. Peck, 6 Cra. 87, 128. Here this contract was *79impaired by the action of the national government, and the State has simply declared what this impairment shall have in its own courts.— Wainwright v. Bridges, 19 La. An. 234; 3 Am. Law Rev. 333, 334; Burbridge v. Harrison, 20 La. An. 357. In making, these sales, the parties had no reason to suppose that they would be interfered with by law, as they have been. They had no idea that they would thus be defeated. Here there was that which amounted to a false affirmation innocently made, and the purchaser was certainly misled by it. This justifies the reeission, and the property, if valueless, need not be returned.— Smith v. Richards, 13 Pet. 26; Christy v. Cummins, 3 McL. 386; Gunnel v. Dade, 1 Cr. C. C. 427.
31. Here the doctrine of vis major does not apply, because the property sold was not destroyed by act of God or by the public enemy, but by act of law. The national authority has said that the vendor of the slave shall not make good the title that he sold ; and then the State intervenes and declares that this interference puts an end to the contract of sale, and that the price shall not be recovered in the State courts. This is just what the parties themselves would have done, had they been in a condition to anticipate the present results.
32. It can not, with any just reason, be expected that there will be found decided cases upon all the questions arising out of the late war, and the legislation to which its complications have given rise. That which has been done without law, and in spite of law, or which has been assailed by law, must be settled by the courts according to “ right and justice,” if there is no statute to direct. — Const. Ala. article 1, § 15. But if there is a statute to direct, it must be followed, unless it is void for want of constitutional conformity. Undoubtedly according to “right and justice” the vendee would not be bound by a contract of sale of personal chattels, which the vendor had no power of carrying into effect, as the parties understood it at the time it was made. — Smith on Contracts. If a party makes a sale of personal property, and it is destroyed at the date of the sale, this defeats the agreement of sale. — - 1 Par, on Con. 521, 522. The like would be the case if it *80was destroyed before delivery; and it is presumed, if the law forbid the delivery, it would have the same effect.— Nerot v. Wallace, 3 T. R. 17; Bates v. Court, 2 B. & C. 474. Now this is so, because there is a law making this the rule. Here, although there was an agreement of sale, yet before the price was paid, the supreme law interposes, and takes from the vendor the power of conferring the benefit up to> the extent that the benefit proposed to go, both in fact and in law, so as to make the title good. It does not simply make the vendor’s title bad, but it declares that he shall not be bound to make it good. It discharges him from his warranty. — 5 Cow. 538, supra. If the vendor accepts this discharge, then he makes the act of the government his own. He takes the benefit, and should suffer the loss. He is discharged from his warranty, and should give up the price. Under this new condition of the facts, the State legislative authority intervenes and makes a new rule, for the guidance of its courts. That is, it declares, that these emasculated sales shall not be the foundation of an action in its courts. This is certainly not the power denied by the federal restriction. The ordinance being within the limit of State legislative power, the court is bound to enforce it. This tribunal is not to judge of its fitness or its. unfitness ; its policy or impolicy; its wisdom or its folly ’ its justice or its injustice. If it is a law, it must have the effect and force of law. It must be obeyed.
33. If the proclamation of emancipation had any force at all, it must have had the same effect everywhere — all over the nation — except in those places where it was otherwise limited, because it was a national act, and it was executed by the national authority. It was a proclamation of the national policy, and as such it was confirmed by the acceptance of amnesty by the people of this State, under President Johnson’s proclamation,'dated the 29th dayof May, 1865 ; and this confirmation must be referred to the thing confirmed. — 1 Bouv. Law Diet. (12th ed.) Vox Confirmation, page 319. So far, then, as the case of Leslie v Langham conflicts with this view of the law, it ought to be. over ruled. — 40 Ala. 524; Nelson, Adm'r, v. Morgan, Adm'r, June term, 1869.
*8134. The seeming injustice of an affirmance of the judgment below, appears from the fact, that the appellant will be made to pay quite eight thousand dollars, in legal funds, to the appellee, for property in persons, now citizens of the State, who had been declared enfranchised by the nation, and whose emancipation the nation was most solemnly pledged to make good; and, yet, get comparatively nothing of any value for his money. This shows how reluctantly the human mind is disposed to divide out the. false goods of an old, selfish idolatry, and to do right, though the heavens may fall. It may be permitted moderately to deplore, though we can not help, such a painful departure from the lato of laws. — Constitution of Ala. 1867, article 1, § 15 ; Hob. 224.
35. I, therefore, think that both the ordinances above referred to, are free from any clearly defined constitutional objections, and that the judgment in this case ought to be reversed and remanded.