
    Gholson, Adm’r, vs. Blackman.
    1. Emancipation Proclamation of the 1 st Janua/ry, 1863, did not affect the status of slaves in Tennessee. The Proclamation of the President of the United States, issued the first day of January, 1863, declaring that all persons held as slaves in certain States, or parts of States, should he free, did not affect the status of slaves in the State of Tennessee; nor -were the rights of parties in reference to this species of property affected, or proposed to he affected, hy the proclamation. Tennessee being one of the States that -were exempted hy the terms of the proclamation.
    2. Hirer of slaves in 1864 responsible to owner for hire, although he has paid the slave. A hired the slave of B in 1864, without the consent of the owner, and paid to the slave the wages agreed on for the services rendered. Held, that the hirer was responsible to the owner of the slave for the value of the services rendered; and the fact that the hirer lived within the lines of a Federal military post during the time, cannot change his liability.
    PROM MONTGOMERY.
    This iras an action for hire of two slaves, for 1864, before a Justice of the Peace, who rendered judgment for the plaintiff. The defendant appealed to the Circuit Court of Montgomery, when the case was submitted to ''aNjury, upon an ..agreed state of facts, who found in favor of^fbe> — defendant; from which verdict and judgment thereon, the plaintiff appealed to this Court. Judge John A. Campbell, presiding.
    Hornberger & House, for Gholson.
    James E. Bailey & Smith, for Blackman.
   Hawkins, J.,

delivered the opinion of the Court.

This suit was instituted by Gholson, Administrator of Rogers, against Blackman, before a Justice of the Peace for the County of Montgomery, on the 27th of November, 1865. The Justice before whom the cause • was tried, rendered a judgment in favor of the plaintiff, for the sum of $58.33, and costs; from which the defendant appealed to the Circuit Court of Montgomery County, in which a trial was had, resulting in a verdict and judgment in favor of the defendant. The plaintiff moved for a new trial, which being overruled, he has prosecuted an appeal in error to this Court.

Upon the trial in the Circuit Court, the case was submitted to the jury upon an agreed state of facts, from which it appears that Gholson, as the administrator of the estate of A. M. Rogers, deceased, hired a woman slave, named Ellen, to Blackman, for the years 1860, 1861, 1862 and 1863. Said woman, Ellen, and her son, Charles, continued in the service and employ of Blackman from 1863 up to the 22d of February, 1865.

The military forces of the United States occupied the town of Clarksville as a military post during the year 1864, and up to the 22d of February, 1865; during the whole of which time, Blackman lived within the lines of said post. During this period, a great many slaves came within the lines, and did as they pleased, so far as their masters were concerned. No master could control his slave. They hired themselves to whom they pleased, and received the hire. Many of the citizens of Clarksville were compelled to hire these negroes or do without servants, and it was their common practice to hire any negro they wanted, who would consent to live with them. Blackman' paid Grholson for the hire up to 1864, and this suit is brought to recover the hire for the year 1864, and up to the 22d of February, 1865.

At the first of the year 1864, the husband of the woman, Ellen, notified Blackman that he must not pay Grholson any further for her hire, and that from that time the wages must be paid to her; and accordingly, Blackman paid the woman her hire for the years 1864 and 1865.

Grholson, the administrator, was at one time in the rebel army. So, also, was one of the heirs of the intestate Rogers; but there were other heirs of the intestate who were infants, and had no participation in the rebellion.

Under this general state of facts, His Honor, the Circuit Judge, instructed the jury: “If the facts of the case are, that the defendant paid the hire to the negro, under the circumstances enumerated, you will find for. the defendant. If on the contrary, you will find for the plaintiff.”

We think this instruction was erroneous. There can certainly be no question, but that as the law stood prior to the breaking out of the recent rebellion, the plaintiff would have been entitled to recover of the defendant the hire of said slaves whilst they remained in his service and employ, without any express stipulation on the part of the defendant to pay the same; and it is equally clear that a payment to the slave would not have discharged the liability of the defendant on account of the hire. The question then arises, have the rules of law, by which the rights and liabilities of the parties would have been as stated, been changed or abrogated? and, if so, when and how?

It is insisted in argument, that inasmuch as Gholson, the administrator, and one of the heirs of the intestate Rogers, were once in the rebel army, and said slaves were within the town of Clarksville while it was oocupied by the military forces of the United States; therefore, under the provisions of the Act of Congress, approved March 13, 1862, entitled “An Act to make an additional Article of War,” and of the Act approved July 17, 1862, entitled “An Act to suppress insurrection, etc.,” said slaves were captives of war, and became free prior to the hiring in 1864.

Let us, then, examine these acts of Congress, and see if this proposition can be maintained. The Act of the 13th March, 1862, vol. 12, United States Statutes at large, 354, does nothing more than to prohibit officers or persons in the military or naval service of the United States, from employing any of the forces under their respective commands, for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due.

This is only an additional article of war, and was only designed to govern the conduct of those who were in the military or naval service of the United States, and did not, in any manner, affect tbe rights of property, or liabilities of others.

The provisions of the Act of July 17th, 1862, relied upon, are incorporated in the 9th section of the Act, and are as follows: “That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall, in any way, give aid or comfort thereto, escaping from such persons, and taking refuge within the lines of the army; and all slaves captured from such persons, or deserted by them, and coming under the control of the government of the United States; and all slaves of such persons found on, or being within any place occupied by the Rebel forces, and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves:” Vol. 12, United States Statutes at large, 591. It has likewise been insisted in argument; first, that both these Acts of Congress are unconstitutional; second, that the act of the administrator in engaging in a rebellion could not, in. any manner, affect the property belonging to the estate o'f his intestate; third, that one of several heirs, or distributees, could not, by engaging in the rebellion, thereby prejudice the rights of others.

We will not now stop to discuss those several prop- • ositions, or to express any opinion touching them, because they do not properly arise in the cause, and their decision is not necessary to an adjudication of the rights of the parties. It is sufficient to say, it does not appear from the facts presented by this record,' that any person to whom said slaves belonged, or who has any interest in them, has, since the passage of the Act of July 17th, 1862, engaged in any rebellion against the government of the United States, or in any way given aid and comfort thereto; consequently, the provisions of the statute do not apply; neither the status of these slaves, or the rights or liabilities of the parties, are in any manner affected by it.

But the instructions of his Honor to the jury, seems to have been based upon entirely different grounds from those relied upon in this Court. Among other things, he said to the jury:

' “In ruling the law in this case, the Court cannot overlook the fact, that on the - day of —:-, 186 — , the President of the United States issued a proclamation, declaring the negro free. This proclamation, at the time, was backed up by a strong and efficient military power, both upon land and sea, which certainly increased up to the termination of the war.
“It affected the independence of individuals; tended to overthrow institutions and conventionalisms; States, for the time being, shorn of their prerogatives; all became subordinated to this power, and as a necessary and inevitable consequence, the relation of master and slave, pending the latter years of the war, was, in point of fact, suspended; which terminated by consent of master and States into an absolute and fixed change, going, in fact, to the extreme of making the negro’s legal status a freeman. So it is, that after the relation of master and slave Vas suspended, or deranged, the masters, as a class, never recovered their control and authority over the slave; hut in the end, by the national will and decree, lost it forever. This revolution, although rapid, was regular; and, perhaps, in point of fact, the emancipation of slavery by the States, was only a ratification of the proclamation of emancipation, or putting the ‘seal to the deed.’ ”

It is not necessary that we enter fully into a discussion of the principles stated by his Honor, in this portion of his instructions to the jury; for, as we conceive, they are based upon an erroneous assumption of fact, and consequently have no application whatever to the case under consideration. They seem to have been based upon the belief of the fact that the President of the United States had, at some time, issued a proclamation, declaring all slaves in the United States free, when, in fact, no such proclamation was ever issued.

It is true, that the President, as Commander-in-chief of the army and navy of the United States, did, on the first day of January, 1868, as a war measure, and for the suppression of the then existing rebellion against the authority of the Government of the United States, issue a proclamation, by which he declared that all persons held as slaves in certain designated States and parts of States, should thenceforward be free. But Tennessee was not one of the designated States, nor was any part thereof designated. Therefore, the status of persons held as slaves in the State of Tennessee, was not changed; nor were the rights of parties in reference to this species of property in Tennessee affected, or proposed to be affeeted, by this proclamation. It had no reference whatever to either.

Then, it cannot he said that the emancipation of the slaves in Tennessee, by an amendment of the constitution of the State, adopted and ratified by the people of the State on the 22d of February, 1865, was either a ratification of the proclamation of the President, or “putting the seal to the deed.” For, as we have before shown, the proclamation did not offer freedom to the person held as a slave in Tennessee; consequently, no ratification of that proclamation could have given freedom to any such person. There was, then, no deed of emancipation of the slaves in Tennessee, to which a seal could he attached.

The amendment of the constitution of the State, ratified on the 22d of February, 1865, is itself the deed of emancipation, by which the bonds of slavery were dissolved, and that class of persons held as slaves in Tennessee were emancipated.

It is argued, and perhaps to some extent, his Hon- or, the Circuit Judge, recognized the correctness of the proposition, that, inasmuch, as during the stormy struggle through which we have recently passed, in many instances, masters were unable to control their slaves, who assumed to be free, and have been since emancipated ; therefore, they were, in legal contemplation, free, in fact, from the time their masters lost the control of them; and from that time henceforward, the owner no longer had any right of property in the slave. We cannot assent to the correctness of this proposition. Now, bad tbe contest been between freedom upon tbe one band, and slavery upon tbe other, and freedom bad triumphed, then, perhaps, tbe principle contended for would have applied, and he, who was once a slave, would now be held as having been free from tbe beginning of tbe struggle, or from tbe time at which be declared himself a freeman.

But such was not tbe issue. Tbe struggle was an effort on tbe part of a portion of tbe people of tbe United States, upon tbe one band, to throw off their allegiance to tbe Government, and to establish, within tbe territory of tbe United States, a separate and independent government; while, upon tbe part of tbe Government, upon tbe other band, it was an effort to suppress this insurrection, and thus to maintain its authority over tbe territory of tbe United States. Thus tbe issue was formed upon which many bloody battles were fought. Tbe Government triumphed in the overthrow óf tbe rebellion, and the successful maintenance of its authority; and, as an incident to tbe struggle, slavery perished amid tbe expiring throes of tbe rebellion.

The facts disclosed in tbe record, as existing during tbe year 1864, and up to the 22d of February, 1865, certainly tended to impair tbe value of this woman and her child, as slaves — to weaken the tenure by which they were held as such, and clearly indicated their early emancipation; but they as certainly did not destroy tbe rights of tbe plaintiff, or give actual freedom to tbe slaves.

We have shown, as we think, that tbe legal status of the woman, Ellen, and her son, Charles, was not changed by the proclamation of the President, or by either of the Acts of Congress referred to. But it is urged, they were free in 1864, upon principles of international law. If this had been so; if slavery had already been abolished by the occupation of the slave States by the military forces of the United States, and the slave had become a freeman by the events of the war, why, we would ask, was it deemed necessary after-wards to engraft amendments upon our Constitutions, both State and Federal, abolishing slavery and securing freedom to the slave? If the proposition contended for be true, the constitutional amendments referred to were but a work of supererogation; but to our minds, they furnish a conclusive answer to the argument that the Government, State or National, regarded emancipation as accomplished without them.

We do not think the principles of international law, as applied in times of a public war between two sovereign belligerent powers, have any application to this case, or in any manner affect the rights of the parties.

Again, it is insisted the plaintiff is not entitled to recover, because, if the defendant had paid plaintiff the hire, the military authority would have compelled him to pay the negro also.

Whether they would have done so or not, is a matter of conjecture only. There is nothing in the record showing any action or interference whatever upon the part of the military authorities in reference to questions of this character, in this or any other case. Upon this question the Court instructed the jury, in substance, that if the plaintiff could not protect the defendant by his receipt, then the plaintiff could not recover, and then adds: “Both alike must be left to the consequences over which neither has any control.”

Now, we have assumed that under the law as it existed prior to the rebellion, there could be no question as to the plaintiff’s right to recover, and have sought in vain to ascertain if the law had been changed or abrogated; and, if so, when or how the same had been done; certainly it has not been done by statute, and it is not pretended in argument that the municipal law of the State upon this subject had been suspended, altered or abrogated by the order of the occupying military power, and we are not advised of any such order; consequently it continued in force, and to take its usual course. Then, by operation of the municipal law, the owner of the slave, or his personal representative, was entitled to receive the hire, and a payment to the slave would not have discharged the liability; and if, after the defendant had paid the plaintiff, persons engaged in the military service' had compelled him to pay the woman also, such compulsion would have been unauthorized; and the mere fact that the defendant apprehended he might thus be compelled to pay the woman also, after he had paid the plaintiff, could not operate to discharge him from his liability to the plaintiff; and he has no right to call upon the plaintiff to indemnify •him against the unauthorized acts of any one, whether in the military service or not; neither was the plaintiff under any obligation to give' such indemnity. The defendant voluntarily placed himself in the attitude of a hirer; he received the services of the slaves, and the law raises the presumption that he promised to pay so ■much as the same were reasonably worth.

The fact that many slaves took refuge inside the Federal lines at Clarksville; did as they pleased; hired themselves to whomsoever they pleased, and received the hire without the voluntary consent of the owners; and the additional fact, that many of the citizens of Clarksville were forced either to hire such negroes or do without servants, cannot operate to defeat the rights of the owners. Neither can the fact, that it was the common practice of the citizens of Clarksville to hire any negro they wanted to, who would consent to live with them, operate to change the general laws of the land. It is also argued, that to hold the defendant liable in this case, would encourage the bringing of a multiplicity of law suits, and therefore the plaintiff is not entitled to recover. We do not know how the fact may be, but if it be as assumed, such a result may well be regretted; and upon grounds of public policy, ought to be avoided by the Courts of the country, when it can be done without violating the principles of justice and disregarding well recognized rules of law. But in our investigations, when we find that ita lex scripta est, it is our duty to declare it; the result is beyond our control. The law-making power belongs to another department of the Government, and not to the Courts.

The judgment will be reversed, and the cause remanded.

Shackeleobd, J.,

gave the following dissenting opinion:

I cannot concur with my brother Judges, in their conclusions in this case.

It appears from the agreed statement of facts, the defendant, Blackman, had hired the negro woman and her son, Charles, for the years 1861, 1862 and 1863. In the year 1864, he was notified by the husband of Ellen, not to pay the hires to Gholson, but to pay them to her, which he did. This suit is brought to recover the hires of the year 1864, of the woman, Ellen, and her son, Charles. It appears, from the statement of facts, that the town of Clarksville, during the year 1864, was a military post, and occupied by the United States forces; that Blackman lived in the town of Clarksville, within the lines; that a large number of slaves came within the lines, and were under the control of the military authorities. It also appears, that plaintiff was, at one time, a soldier in the Confederate service; that one of the distributees of the intestate, for whom Ghol-son is the administrator, was also a soldier in that service. A part of the distributees are minors, and took no, part in the rebellion. It is now insisted, the legal status of the slaves was not changed by the war, so as to deprive the owner of recovering the hires, until they were emancipated, on the 22d of Eebruary, 1865.

It is insisted, the provisions of the Act of Congress, of July 17th, 1862, passed relative to slavery within the revolted States, is unconstitutional. Without stopping to discuss the constitutional provisions of that Act, and bow far tbe law-making power of tbe Federal G-overnment bas tbe power to interfere with slavery in tbe States, it is unnecessary for me to discuss tbe constitutionality of tbe Act, as this case does not fall witbin its provisions, but is controlled and governed by international law, or tbe laws of war.

At tbe time of tbe biring of tbe slaves, in 1864, slavery was practically abolished in Tennessee. The government enlisted them in their armies, provided for tbe families of tbe males, and treated them as freedmen. The town of Clarksville was occupied by the military forces of tbe United States; a great number of slaves fled from their owners and took refuge witbin their lines. Within their lines, tbe slave found sure refuge and asylum, and was free from bis master’s control. Slavery existed in tbe State by tbe municipal law only. By tbe provisions of that law, be was regarded as a chattel, and also a human being. The owner held, under its provisions, a right of property in bis slave; be was liable to sale for bis debts; upon tbe death of tbe owner, he descended and vested in bis distributees. But this right of property existed under the local law only. The law of slavery originated in force; but it had become engrafted upon our social system, and previous to the war, the rights-of property in slaves was as secure as any species of personalty. Tbe attempt of tbe people of the State to throw off their allegiance to tbe government of the United-States, resulted in war; tbe consequences of which were, this species of property became contraband of war, and is, therefore, controlled by tbe principles of international law, and of tbe laws of war. The law of nature and of - nations, Lave never acknowledged slavery. It was the result of force; and when the power that held him in bondage was removed or broken, his shackles fell from him.

“A slave stands in two relations to his master, and his master’s sovereign — that of an article of property, and that of a human being. As a movable chattel, by the laws of war, he would not be transferred from the private citizen to the occupying power, except as a contraband of war. A test could only be applied to males capable of military service, or of labor in time of war; but, as persons capable of being used by the will of the master, or his State, irrespective of his own will, in war, or as laborers, the occupying sovereign has the right to transfer their service from the enemy to himself. They are so directly liable to the State control, in war, that their conditions follow the fortunes of war; and, as slaves are grouped in temporary families, with rights at least moral, in the service, affection and duty one to another, the transfer includes the families, as appurtenant to the laborers. Their emancipation is as complete as their mere transfer would have been.” Dana’s Wheaton, 347, Note “A.” A war existed between the United States government, and the people of the States in rebellion. The executive and legislative departments of the government recognized a state of war. The revolted States were declared to be in insurrection to the lawful authority of the government of the United States. The whole military and naval power of the government was used to suppress it, and restore the lawful authority. Belligerent rights were accorded, and the insurgents were treated practically as belligerents de facto. The people of the State of Tennessee had been declared to be in a state of insurrection to the Federal Government, and were regarded and treated as enemies. It can make no difference, whether the owner of the slave was loyal or disloyal, he resided within the enemy’s territory.

The Supreme Court of the United States, in the case of Mrs. Alexander Cotton, 2 Wallace, 419, say: “This Court cannot inquire into the personal character and dispositions of individual inhabitants of enemy’s territory. We must be governed by the principles of public law, so often announced from this bench, as applicable alike to civil and international wars; that all the people of each State, or district, in insurrection against the United States, must be regarded as enemies, until, by the action of the Legislature and Executive, or otherwise, that relation is thoroughly and permanently changed.”

Such being the status of the people of the State of Tennessee, as declared by the highest judicial tribunal of the land, on the 24th of April, 1863, instructions were prepared and issued for the government of the armies of the United States in the field, by order of the Secretary of War, by Francis Lieber, LL.D.; revised by a board of military officers, and approved by the President of the United States; and are known, in the series of orders issued, as No. 100. These instructions embody the principles of international law, and the laws of war, as recognized by the civilized nations of the earth. Section 42 of said instructions, on the subject of slaves, is as follows: “Slavery, complicating and confounding tbe ideas of property, that is of a thing and a personality, that is of humanity, exists according to municipal, or local laws, only. The law of nature and nations has never acknowledged it.

“The digest of the Roman law enacts the early dictum of the pagan jurist, that so far as the law of nature is concerned, all men are equal. Fugitives, escaping from one country, in which they were slaves, villeins, or serfs, into another country, have, for centuries past, been held to be free by the judicial decisions of European countries, even though the municipal laws of the country in which the slave had taken refuge, acknowledged slavery within its own dominions. Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage be captured by, or comes as a fugitive under the protection of, the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman.” Such being the rules of international law, as promulgated by the highest military authority of the Government, giving to these rules of law that broad and liberal construction that is always applied by the Courts in favor of human liberty, the slave of the belligerent, as soon as he comes within the lines of the United States forces, or they are extended over him, the chains that bound him are broken, and he stands forth “redeemed, regenerated and disenthralled,” a freeman, owing service only to his God and his country.

What is the legal effect of these principles upon the right of the plaintiffs? The slaves, Ellen and her son, ■were hired by Owen Blackman for the year 1863. The hiring ceased at the close of the year; it was her duty to return to her master, by the law of slavery, as it existed previous to the war. If she refused, or failed to do so, having no written permission to stay in the town of Clarksville, or elsewhere, she was liable to an arrest and imprisonment as a runaway; but she was within the Federal lines; love of liberty prompted her to remain under the protection of the military authorities; and she, therefore, falls within the rules of international law. That superseded the local law, and she, thereby, became free. The rights of the owner ceased as soon as she placed herself and son under the protecting influence of the armies of the United States.

The laws of war recognized them as human beings, in which no right of property could exist. It follows, therefore, that the plaintiff had no right to the services of the negro, Ellen, and her son, for the year 1864, and is not entitled to recover. The conclusions of the Circuit Judge were correct, that the slaves were free, and I think the judgment, therefore, ought to be affirmed.  