
    No. 1317.
    L. S. Austin, Tutor, v. Mary Sandel, Administratrix.
    “Where the consideration of a promissory note is shown to ho the sale of an African slave, payment cannot be judicially enforced.
    Property in slaves being prohibited by the sovereign power, all contracts based on such property are stricken with nullity
    Courts of justice, which aob only upon and under the law, cannot givo vitality to laws which have become, by paramount authority, inoperative and void.
    1 he doctrine in the case of “Wainwriglit v. Bridges, (ante page 231) reaffirmed.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.
    
      Me Vea & Hunter, for plaintiff and appellee.
    
      J. IT. Muse, for defendant and appellant.
    
      Reporter.— There were several cases on appeal to the Supreme Court involving the same plea in defence, viz : want or failure of consideration, where the contract was either shown or admitted to have grown out of the sale of slaves which aro sought to be enforced after emancipation. The case of Wainwriglit v. Bridges, (ante page 234) was first taken up and decided by the Court. In that ease, there were no briefs or arguments of counsel filed on either side, but the Judges had access to the briefs filed in the other cases, to aid them in making a decision on the points raised by the record. In all the cases subsequently decided involving the same points, no elaborate opinions were prepared by the Judges; they simply reaffirming the doctrines and principles enunciated in the Wainwriglit case. In this case I publish the briefs of counsel on both sides, which were consulted by the Court in the other cases.
    
      Brief of MeVea <& Hunter, for plaintiff and appellee.
    —The defence to this suit, brought on a note in the ordinary commercial form, and received by the tutor for the minor he represents, before its maturity, is:
    1. Prescription of five years.
    2. Failure of consideration for which the note was given, by act of the sovereign authority, State and Federal, emancipating the slave.
    Upon the first, we will refer the Court to the evidence in regard to the state of affairs in the parish in which both' parties were living. It presents, if anything, a stronger case for the application of the maxim “inter arma silent leges,” than the case we consider as justly deciding this question (W, B. Smith v, G. B. Stewart,) recently decided.
    
      Mr. Ilarclee says: “During the years 1863 and 1864, there were constant and continuous collisions between the two opposing forces in this parish.”
    “From August, 1862, to the Confederate surrender, this country was under continual military occupation.”
    In more than one instance there were engagements in the immediate vicinity of the plaintiff's house, situated about fourteen miles from Fort Hudson,
    It is true that some sort of occasional Courts wore held, and at one time there were two Judges for the same district.
    Judge Avery, the regularly elected Judge, held his last term of Court in January, 1862; resigned in April, 1863. Judge Smith held a Court in 1864, under a Confederate appointment by Governor Allen. Judge Fosey was Judge of this same district during a portion of this very time, and was not able to hold a Court in the section in which the parties lived.
    We submit that under these circumstances the plaintiff was not called upon to act upon his claim, and he did so as soon as practicable, and the business of the Court was resumed.
    The other ground is equally untenable. While admitting there is no provision of law recognizing this defence, she attempts to place it upon the ground of the equity powers of the Courts.
    She ought, in order to urge this defence with any force, first evince a disposition to do equity. . *
    She makes no proposal to account for the services of this slave from the time of the sale in 1858, until the slaves’s emancipation, at whatever date it may be held to be fixed.
    She does not show that the. slave was ever emancipated in her hands. The succession of Sandel may have among its assets, for aught we can gather from the evidence, the proceeds of the sale of this very slave.
    
      Brief of B. J. Sage, for defendant and appellant.
    —This case is one of that large and important class, where debt, evidenced by note or otherwise, is due for slaves which have been emancipated by the supreme authority of the State,' in its recent abolition of slavery. I question not the validity of this abolition. It is done ; no one expects or endeavors to restore the institution to life; and the only practical questions concerning it, we have now to deal with, are consequential ones.
    The term “State ” herein used, simply means political society, except where it obviously indicates ono of the United States. I evade several disputed points concerning our sovereignty, and the character of the governmental contrivances, we, as a self-governing people have adopted, and assume some fundamental principles which I think will not be controverted, as they have the sanction of the first publicists, and political philosophers of the world.
    I shall attempt to sustain the following points :
    . 1. That the political sovereignty, which has acted in the premises, is a moral person, a unity, with an understanding, a will, and a conscience.
    . 2. That sovereignty is identical with justice, and is, in its nature, incapable of injustice.
    
      3. That the contract interfered with, is unsusceptible of division—is res integra; and that, in destroying the “ cause ” of the contract, or a part of the contract, or in discharging a party, the sovereignty ipso facto dissolves the whole thing—the res integra.
    
    4 That the judiciary cannot enforce what the sovereignty has nullified; and that hence, the defendant is discharged ; and it is immaterial whether the plaintiff is bound in warranty or not.
    Besides supporting the above points, I shall endeavor to strengthen my conclusions by criticising, and attempting to refute the chief arguments I have seen adduced by attorneys or judges in support the plaintiff’s pretensions.
    We aro a republic ; that is, wo, as an organized people, govern ourselves. The political sovereignty is ours ; and hence the responsibility of doing justice between subjects falls upon us as a commonwealth. And the State is a moral being, possessing understanding, will and conscience; in other words, the capacity and the obligation to do justice ; and it must be guided by the principles of morality and equity, in making and enforcing its laws, and in examining and weighing conflicting claims of right, and establishing justice between them.
    Justice in our country is justice to one another, for we govern ourselves under the obligations of the social compact which makes us a commonwealth ; and all the manifestations of our sovereignty, in making and executing laws, and rendering justice under the laws are our acts. And our golden rule must of necessity be, to do to individuals as we would be individually done by.
    Not a soul of us would wish to be forced to pay for what had been taken from him against his will.
    And it cannot be our intention, as a sovereign, to wrest a negro or any other property from a citizen, and then compel him to pay for the same, Such conduct would do for robbers, but not for men who, as a body, have the faculty and the right to do justice, and who, as individuals, always crave it.
    We may state the question nakedly, thus : Shall the defendant be deprived of his property against his will, and prohibited from calling on his warrantor for indemnity, and yet be simultaneously compelled by the same power that has done this, to pay for it ? It will be attempted to show that such an idea is abhorrent to law, equity and common sense.
    I. My first proposition is, that the sovereignty—that is the soul of the State—which dwells and acts in the organized people, is in its nature a unity, and indivisible'—is, in other words, a moral being. As to the authority for this, I need only say that Yattel and all the other great publicists agree on it. This sovereignty manifests itself in legislative, executive and judicial acts, through created or incorporated agencies called governments. Let us personify it as a wise and good man enthroned, and possessing investigative faculties, understanding, will and conscience, attributes, I have affirmed, of the State. See Yattel, p. 14 et seq. Would such monarch legislate or decree the destruction of the thing bought, and at the same time, and with the same mind, proceed judicially to compel payment for it ? This is so utterly absurd that if the .law apparently lead to it, the Courts, according to all rules, must inter” pret to avoid it, and must let in equity, if indeed Courts can act upon the matter at all, which I aim to disprove.
    II. Sovereignty, from its nature, cannot do a wrong, but must act with justice and equity ; must-be impartial, and treat all citizens as equals. Says Lieber’s 1 ‘Political Ethics,” ed. 1839, p. 151: “Tho fundamental idea of the State is justice—tho right which exists between man and man. That which renders tho State so groat and important is, that it maintains right, protects, and is a continual guard over tho individual right of every one ; that it demands of no member an obligation on his side alono, but knows of mutual obligations only. ” Elsewhere, he says : “Justice, in its broadest sense, is the foundation of the State.” Says Milton in his “ Tenure of Kings and Magistrates : “Justice is tho only true sovereign and supreme majesty upon earth.” Says Bracton (do Legg. et consuet. Ang-]., lib. 1. cap. 3.) “Item author justicias est Deus, secundum quod justicia est in Greatore.” Sec also Blackstone, Book 1, p. 40.
    We must reflect that tho sovereignty in our country, being the political power of all united, must act for all, and alike to all. The community, in acting upon the rights of its members, can make no distinction. It cannot say to one party to a contract: “You shall give up the thing and pay the price, ” and simultaneously to the other: “Go free.” This is the only truthful way to state the matter, for any little (or great) lapse of time between the making and the consummation of the contract by complete performance does not change tho principle. It may bo stated that the sovereign at the same moment binds one party and discharges the other. The capability of such action cannot be predicated of sovereignty.
    Tho absurdity and mockery of tho reply, that the government simply takes private property for public use, or “for works of public utility,” and must compensate, will be duly shown.
    I take it for granted now, that I have established the absolute unity and indivisibility of sovereignty; and that in the turn cases of interference with the contract in question, i. o., in setting the negro free, and in enforcing payment for him, it acts with the same mind and heart; and secondly, that from the nature of sovereignty it can only be just and consistent, treating its subjects with equity, which is equality, and is incapable of discharging one party and coercing the other.
    III. The contract in question, with all its stipulations and incidents on both sides is a unity, and must be dealt with by the sovereignty as a whole. It is a commutative and synallagmatic contract, that is to say, “a contract containing mutual covenants,” or in which “what is done, given or promised by one party, is considered as eqivalent to, or a consideration for what is done, given or promised by the other.” C. C. 1761, 1763. See also 1893, showing the unity of the contract, though many obligations spring from it. See also 39 C. P., which-declares that it is “of the essence of a synallagmatic contract,” “ to give rise to two species of direct actions” to enforce the “mutual covenants.” Hence not merely the sovereignty, but the Courts must keep in view the whole contract as a unity, res íntegra. Inst. 3. 30. 4. If any essential part, any part deemed a sine qua non, had been wanting, the parties would not have agreed to it; so, if any part bo changed, the thing i§ not their contract. Just what they have agreed upon is the law inter sese. CfC. 1895, 1940, 1960. One party gave a negro, whose elements of value, forming the motive and cause of the contract, were that he was sound, sensible, and a slave for life ; and the other gave an equivalent or consideration, viz : cash, and notes bearing interest and secured by mortgage. If the supremo legislative power como and repeal a part of that law, the whole becomes ipso facto null; and the remaining part of it cannot be enforced, for the sole foundation of that law was the agreement of two wills; and that law'itself was what they agreed on as a whole, res integra. In other words, if the sovereign interfere, and discharge one of the parties, or destroy the cause or consideration before the mutual obligations of the parties are ended, and before their reciprocal rights of action are extinguished the contract is at an end ; for the rule of law, as well as common sense, is, that where the sovereignty intervenes for State reasons, and discharges one party, the contract is dissolved.
    I repeat, that where the State annuls any integral part of a contract, or prevents its effectuation, it dissolves the whole thing.
    Let us now see how far the English Courts have recognized the principle stated, in reference to the action of their government, which, unlike our governmental contrivances, is the sovereignty. There is no case directly in point, for England recognized slaves as property, and paid for them ; but there are many cases involving the-principle contended for.
    In the case of Touting cl ais. v. Ilubbctrd, 3 B. & P., 296, Lord C. J. Alvanloy stated the principle of the various cases to be this: “If a party contract to do a thing ho shall be bound, to performance, if it legally may be, and is capable of being performed ; but when the policy of the State intervenes, and prevents the performance of the contract, the party will be excused. And so if a party who has covenanted not to do something, is directed by act of parliament to do that very thing, he is released from his covenant.
    All these English and American cases show tlie principle to be, that if any unexecuted part of the integral contract become prohibited, all unexecuted parts become null, as do all rights of action springing therefrom. In other words, the contract, as a whole, is dissolved by the State, except as to what has been legally accomplished.
    Here is really the principle relieving the defendant, though it seems to have been ignored, and its strength not understood. Principles that belong to different strata, so to speak, of political science, are confused. Legislative acts and jurisprudential and moral.maxims that prevail under the law, are carried up to regulate the acts of the sovereign who made the law, and is above the law. So that all we hear said about privato property being taken for public purposes ; about compensation ; about the risk falling- on the vendee after delivery ; and about the warranty of “ slave for life,” etc., etc., is inapplicable ; and we may, without discussing these civil codities, claim the absolute- discharge of the defendant, as the result of the sovereign act of dissolving the contract which bound him.
    The abolition of slavery is not only the destruction of a great institution, but it is the annulment of a tenure of property, and neither of these things', can be done by ordinary legislative power. Fundamental institutions and tenures, can only be destroyed by the sovereign authority that established them, that of the people ; for not only has no power been delegated to any governmental (i. e. vicarious) authority to do so, but such vicarious authority is provided by the sovereignty solely to preserve, protect and defend ; not to destroy or impair rights. Hence this matter is above the cognizance of the delegated legislative power, and a fortiori above the cognizance of the judicial authority, which can only act upon law ; so that neither the warranty (if there bo one) nor payment can be enforced.
    Every vestage of law which recognized slave tenures has been swept away, and all contracts based upon such tenures, or involving a slavo consideration, were swept away, too. A new fundamental law, the law of freedom to all, has been established by the sovereignty, and the creatures of sovereignty can only act upon, and according to the fundamental law the sovereignty has made; that only the paramount authority of the State can interfere with, and change or annul the obligations of the parties legally entered into, and that the ordinary legislative authority of the republic is not capacitated to do so, are ideas fully recognized by the Civil Code itself (1940, 1958.) The sovereignty has acted; and by its subsequent and higher law, abolishing slavery and destroying slave tenures, all laws pertaining to and supporting slavery and slave contracts, are repealed. In other words, it has annulled, as to slavery, “the law of the land, and that which the parties have made for themselves by their contract.” (C. C. 1960; see also 1895, 1940, 1958.) These parties cannot make, on any slave basis, any new law for themselves ; and they cannot execute such portions of an old one on such basis as remain executory, for if the ordinary legislative authority cannot pass or permit a law upon this subject, surely the ordinary judicial authority cannot execute or enforce one. And this brings up directly the following point, which the above authorities suggest and sustain.
    IY. The judiciary, which is a creature and agent of sovereignty, cannot enforce what the sovereignty has nullified ; and hence, it is immaterial whether the plaintiff is bound in warranty or not. The Court could not, in any one of the above-cited cases enforce the contract, because a Court can only hold jurisdiction on and conterminate with law; and not only the contract, which is the law between the parties, has perished, but the law which authorized the Courts to take cognizance of, and enforce such contract has been repealed. And as to the rights of action springing out of the contract, they must have perished too ; for, says C. P. 39, “it is of the essence of a synallagmatic contract,” “to give rise to two species of direct actions.” In this case, these actions were—first, that of the ,. plaintiff v. the defendant, for the price, etc.; and, second, that of tho defendant v. the plaintiff, for title, etc. The mother was stricken to death by the sovereign, and the twins died en ventre sa mere / Beyond question, the plaintiff’s guaranty of slave for life, if it ever existed ; his guaranty of title; his guaranty of the vendee’s peaceable possession ; his guaranty against redhibitory vices ; as well as the defendant’s obligation to pay the price, all perished with the contract.
    
      It is no reply to say tliat there is no'warraniy, ancl hence no action of warranty ; for if we admit this, the action for Ihe price remains, because, as the Code of Practice, p. 39, declares, “it is.of the essence of a synallagmatic contract,” “ to give rise to itso, the contract being dissolved, the plaintiff's right of action is gone, it being only correlative to, and coexistent and commensurate with the obligation he seeks to enforce. The right of action has a necessary relation to the .thing purchased, for it is for the price of said thing, and it springs out of the obligation to pay for it. The Court is bound to know, that in this case the obligation is a slave one, for it is of the kernel, and not merely of the husk, that jurisdiction is held, and it is the obligation and not merely the note, which the Court must closely inspect, in order to ascertain whether to hold or decline that jurisdiction.
    I conclude, therefore, that the defendant'is discharged; not because the plaintiff does not stand to his warranty, but because the Court has nothing on which it can act to execute or enforce. ■
    The reason and philosophy of the principle contended for, is well sot forth by Lord Ellenborough, in the case of Atkinson v. liüchie, (10 East. 530.) His lordship, remarking on the proposition, that “in every private contract, however express in its terms, there is-always a reservation to be implied for the performance of a public duty, in which the interest of the State is materially involved, said as follows : ‘ ‘ That no contract can properly be carried into effect, which was originally made contrary to the provisions of the law, or which being made consistently with the rules of law at the time, has become illegal, in virtue of some subsequent law, are propositions which admit of no doubt. • Neither can it be questioned, that if from a change in the political relations and circumstances of this country, with reference to any other; contracts which were fairly and lawfully made at the time, have become incapable of being any longer carried into effect, without derogating from the clear public duty which a British subject owes to his sovereign, and the State of which he is a member; the non-performancc of a contract in á State so circumstanced, is not only excusable, but a matter of peremptory duty—an obligation on the part of the subject.”
    So when, in our country, the State, exercising its sovereign will, with motives satisfactory to itself, abolishes slavery and all its incidents, the laws supporting it, and all contracts based upon, it, (that is, “ the law of the land, and that which- the parties have made for themselves by their contract,” C. C. 1960) “become incapable of being any longer carried into effect, without derogating from the clear public duty which ” the citizen “ owes to his sovereign, and the State of which he is a member;” and the “non-performance of such contract, in a State so circumstanced, is not only excusable, but a matter of peremptory duty—an obligation on the part of the subject. * * * * *
    1. It is said that the discharge of the defendant would impair the obligation of a contract; and that hence, the Court must hold him to his obligation. For the reasons heretofore stated, this is not an objection which any Court can notice. The sovereign can, not only impair the obligation of contracts, but, as we have seen, can absolutely annul them, and destroy vested rights. Of course the government cannot do so, for it i ¡ the creation of, and is subordinate to, the supreme authority of the State which made the fundamental law, giving the government its existence and powers, and imposing restrictions on it; such restriction for instance, as these : No ex post facto law, and no law impairing contracts shall be passed ; no man shall be deprived of property without due process of law, etc., etc.—restrictions first placed in the State constitutions, and afterwards in the Federal one, and now binding on the government as the “supreme law” of the supreme law-giver of the land.
    To make this more clear, as well as to show that this line of thought is not merely for the exigency, I beg leave to quote from a letter of mine published in the New York Journal of Commerce, and other papers, in 1856 : “Slavery is one of those essential facts which belong to the very constitution or frame-work of society, and fall not within the scope of legislative power, but can be created or destroyed only by act of sovereignty. The sovereign is the people ; and if they have not delegated the power, it remains with or in them.
    Moreover, legislation means only law-making, or rule-of-action making, and includes not in its scope or meaning the power to create, impair or destroy an institution or part 0f the frame-work of society, a citizen’s property and vested .rights, or the obligation of contracts between individuals ; and I have long thought that this is the true reason why Congress, although it has the power of exclusive legislation for the District of Columbia, cannot, under said grant of exclusive legislative power, abolish slavery there. Neither can the State or Territorial legislatures, in their respective jurisdictions. But State conventions, representing the sovereignty of the people, can.”
    We can now appreciate what I have already stated, that the abolition of slavery and the destruction of the slave tenure, are matters of sovereign jurisdiction exclusively, and are completely above ordinary legislative authority. Statutes and codal provisions could have no effect on proper contracts, except through the judiciary, in enforcement of said contracts, for legal agreements between citizens are law ! While the legislature can repeal its own laws, it has no power to repeal the laws which citizens establish inter sese by their valid contracts ! Lawful agreements of citizens cannot be touched by law-makers, though citizens can, in making them, derogate from the laws.
    Article 1910, C. C., provides that ‘ ‘ legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them;” and “that no general or specific legislative act can be so construed as to avoid or modify a legal contract previously made. ” And Article 1958 provides, that “ when the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or provision, which the parties had no right to modify or renounce.” See also 1895, 1960, 1962.' These provisions of the Civil Code are a repetition and amplification of the constitutional declaration, that no law shall be passed impairing the obligation of contracts. It is obvious, from the above, that neither the legislature nor any other department-of the government, has any power whatever to act in the premises, and dissolve or nullify contracts or parts thereof ; or discharge parties— much less to destroy property, or the cause and motive of contracts, while the power above the government (that created the government as its agent) can do all these things. It is also obvious that legislators and judges cannot recognize and enforce as valid, any part of .those lifeless remains, blasted and scattered by the fatal stroke ! but that all their proceedings, laws, orders and decrees, must colisist with and be ancillary to their sovereign’s act. And it is also obvious that it were absurd to ask the creature, i. e., the government, or any department thereof, to compensate for what the creator has destroyed, 'especially as no power has been given to do so. The sovereign has not only impaired, but it has destroyed the obligation of these contracts, and there can be no remedy !
    2. It is contended that the defendant is still'bound by the unexecuted part bf the contract, while the plaintiff is bound to no obligation at all. In the attempt to limit the warranty to the matter of title and redhibitory defects, it is forgotton that these warranties exist without words—(O. C. 2450,2451, 2477; and that this construction makes the phrase “ warranted slave for life ” of no effect, although the law (C. C. 2479) expressly provides that “ the parties may by particular agreement add to the obligation of warranty, which results of right from the sale or diminish its effect;’’ and, moreover, it violates that well-known principle of interpretation, that we must not construe that which is unambiguous, unless the language leads to a positive absurdity or inconsistency,- O. C. 1940. So far from this being the case, it would be a positive absurdity to say that the phrase “ warranted slave for life,” only means what by law is “implied in every sale.” C. C. 1757. It also violates the rule,'that interpreting a deed, every part of it must be made if possible to take effect, and every word must be made to operate in some way or other. Broom’s Legal Maxims, 414—Shep. Touch. 84. But, says the opponent,' it refers only to status at the time of sale. “Warranted slave ” would'be enough for that, and no words could add force to the phrase. “ Eor life ” means nothing, if not; a continuance of that status, i. e., a continuance in the status of a slave during natural life. The language is too plaid for construction ; but if the seller should succeed in making it doubtful, “ any obscure or ambiguous clause is construed against him.” C. C. 2449. As in common law, the deed is construed most strongly against the grantor. It will be shown hereafter that the articles on eviction and warranty have no application to this case.
    3. I have read, in some judicial ojiinion, that “no one can guaranty against the acts of .the government, because no one can oppose the will of the sovereign. ”
    This is an admirable specimen of the pelitio prinoipii. In the first place, the Judge forgets that the sovereignty is one thing, and is in the people, and the government is another thing, and is out of the people, but exists and acts by virtue of their delegated power ; in other words, the people, as a republic, govern themselves ; and the government is their contrivance for doing so. No “guaranty against the acts of the government,” indeed! Why the sovereignty itself has guarantied us all against the very act in question, as well as all other illegal and unjust acts, by establishing equality ; by commissioning said government only to do justice ; by not delegating the power'to do this thing, and prohibiting the use of all power not delegated; and by declaring that no man shall “ be deprived of his life, liberty or property, without due process of law,” as all tho States of the Union severally declared in their preexisting constitutions, and afterwards jointly declared in their Federal one. At all events, this contention is baseless, because there is no “ act of the government” in the premises, to give rise to any question of “ guaranty against the acts of the government.”
    Again, if the Judge mean by this phrase, that no one shall by his warranty help to resist, violate or nullify the acts of tho government, I quite agree with him ; but I feel confident that there is no illegality or impropriety in a party wrrranting or insuring one, whom he contracts with, against a loss caused by governmental action. And if the plaintiff in in this case, has not from the general stipulation of warranty, or from the warranty of title and possession implied by law, provided an exception, he must suffer, for he might have guarded himself. In Paradina v. Jane, 27 Alleyn, it is held that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; and, therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it. See also Harrison v. Lord North, 1 Ch. ca. 84 Under the law, tho plaintiff in this case has undertaken the warranty in question, and has not provided against the loss by the act of the sovereignty. But for this exercise of sovereign authority, the vendee would have the right of action against him. In the somewhat similar case of Miltelholzer v. Fullarlon, (6 Adolphus & Ellis, Q. B. Reports, N. S.) arising in the West Indies, the appellate Court in England, while deciding that there was no guaranty in point of fact, conceded that “ if there had been a guaranty (of the services, for the term of six years, of 153 apiorenticed laborers), and it had been broken, there would have been a right to a cross action.”
    It is the plaintiff who, if any body, must apply to the sovereignty for compensation. But in truth, he and the defendant are both discharged by the State from the dissolved contract.
    4 For the loss of' the slave by emancipation, the purchaser must look to tho government. If the government takes your property for works of public utility, you have no recourse against your vendors, but against the government alone.”
    Which government; tho State or the Federal ? Both are alike, creations of and subordinate to the sovereignty. It cannot be the Federal, for it did not do the damage. It had no right to destroy (as it had not to establish) any tenure of property ; so it would be absurd to ask it to compensate. Moreover, it utterly lacks power, not having been commissioned by the State or “ the people,” to do so. The same reasons apply to the home government of Louisiana. * * * * *
    These are not only sufficient replies to the above obiter dictum of the Judge, but to the common remark, that “ the arguments of the defence are proper in a claim to the legislature for compensation.”
    But further, the legislature, especially the Federal, has no right to take property for a purpose “ of public utility,” unless such purpose and the power be in the constitution. No power to take a slave, much less all slaves, for any purpose, is given, more especially as the pretended use, was not use at all, but simple destruction of the very right to use ! And moreover, there is no “ purpose ” or “ work of public- utility,” that the “taking” of the right of property in a slav'e, would be necessary to accomplish. “ The government takes your property for works of public utility !” Who could imagine that this judicial phraseology meant the abolition of slavery by sovereign power ?
    It is quite obvious, that neither the -sovereignty (nor the government) has taken any property at all, and of course has not used it. But it has declared that such property is no longer property; it has abolished the tenure. “ Private property for works’of public utility,” indeed !
    5. The Code throws the loss on the vendee.. “ lies peril suo domino.” This is the main point in the able brief for the plaintiff, in the case of Knox v. Dwplanlier.
    
    Article 2442, provides (under certain modifications as to delivery in 2443-4) that as soon as the contract of sale is complete, the thing is at the risk of the buyer. And Article 2511, glossed by 3522, $ 7, provides that if the thing perish by a fortuitous event, (that is, an event which “ happens by a cause we cannot resist, ”) the- loss is the buyer’s. Article 1892 is also quoted, but as it cannot bo said that “ all that was intended by the parties was carried into effect at the time,” for the intent to pay the price is not yet effectuated ; the article does not; apply. Moreover, for the same reason, the loss in the case at bar has not occurred depuis que la venle a recu sa perfection. The article can only have reference to an executed contract.
    But let us pass all doubts and queries, and concede that the loss in this case is the buyer’s, if the thing perish by a fortuitous event, aEter delivery. Then comes the important question : Do these three ideas concur in our case, as they must, in order to bring it, within the above articles : 1st. The idea of the thing ; 2d. That of perishing ; 3d. That of a fortuitous event. 1st. We may admit the negro to be the thing; 2d. This thing perishes only by death. But let us reason : If the sovereign say, as'it can rightfully do, that my books shall be property no longer ; or if it declare that a watch, a horse, dogs, or certain animals ferae nahirce, that have been regarded as property shall be property no longer, would that be the perishing or destruction referred to ? No ; because the identical thing still exists unimpaired; and, besides, fortuitous events do not merely destroy tenures, and leave uninjured the things held. In this case, the thing exists just as a dog, .book, watch, or horse may, after the owner is dispossessed by loss or theft. The thing has not perished. 3d. Is the abolition of the slave tenure a fortuitous event ? Such event is something accidental, e. g., a thunderbolt, freshet, crevasse, tornado, fire, collision, striking a snag, violence, a mob, etc., etc.; but the act of the sovereign is no fortuitous event, (any more than an a'ct of the legislature, or a judgment of the Court would be) for it is a most deliberate exercise of sovereign will by virtue of its conceded right, and upon a professed principle of morality and natural law, “ Fortuitous events,” indeed !
    
      We may tlien decisively, say, that these articles can have no application. Let us proceed to examine some others which are cited against us as to eviction and warranty in the aforesaid brief.
    Eviction is the loss the buyer suffers from the claim or right of a third person to the thing. C. C. 2470. “ Third persons” are all who are not parties. 3522. The plaintiff cites 2470, Domat, p. 230, Nos. 371, 374 ; also p. 174, No. 190 ; also Pothier, p. 54, No. 93, repeats his paier-nosler, res peril suo domino, and seems- to think he has clinched the nail. Let us see.
    Eviction (from evincere to overcome—to prevail in law), must mean loss in pursuance of a judgment in favor of a paramount title (see Burrill’s, Bouvier’s, and Webster’s Dictionaries), especially as under the law, no person can be deprived of property without duo process of law ; so saitli the sovereign ! Now thoro has been no judgment of eviction; no right of a third person has prevailed in law. Ilenoo these articles do not apply. * * * * *
    6. Finally, let us notice a quostionput from the bench during the argument, involving a very common fallacy : “ Shall we throw all the loss on the plaintiff ?” I trust the Court will as officio note the defendant’s cost of keeping the slave—say for four years ; the interest for that time of the unproductive capital represented by the slave and the correlative land ; the loss of the slave by emancipation ; the consequent abatement of the value of the land, improvements, and other property, directly caused by the loss, to say nothing of other direct or indirect losses, and of moral and mental injuries ! The truth is, the debtor has lost more than the creditor, even if the latter do not recover ; and I now submit that the real question is : Shall the debtor lose as much more, in order that the creditor shall lose nothing ? for the Court must give judgment for principal and interest, if for anything - at all; and this, while ruining the defendant, would enable the plaintiff to escape absolutely unharmed by the war or the emancipation ! Would we thus be doing equity or equality, as a sovereign ? .
    No ! this is all error ! The sovereignty intended that the tree should lie as it fell; and that those should suffer who were in the way. For this conclusion, there are two unanswerable reasons : 1st. The abolition of slavery was a deliberate act of war, consummated by conquered and abject States under dictation ; and it is not bolligerent-like to make or cause reparation except by or under treaty. 2d. The precedent which England had set of compensating for slaves as property, was avoided ; and no cure, compensation, remedy or recourse was provided for, and no reclamation is legally possible. No wound is to be healed, except by the ins medicalrix nalurce; and no ruin is to be repaired except by labor, reproductive energy and time,
   Taliaferro, J".

This suit is brought on a promissory note for the sum of $452, with interest, from the 2Gth February, 1861, the time of the maturity of the note.

The defence is:

1st. The prescription of five years.

2d. Failure of consideration, arising from the emancipation of slaves by the sovereign authority.

Judgment was rendered for the sum specified in the note, but without interest.

The defendant has appealed.

The plaintiff prays an amendment of the judgment, allowing him the interest claimed.

It is. admitted that the consideration of the note was the price of an African slave sold at a succession sale.

The first ground of defence we deem it unnecessary to consider.

Eor the reasons assigned in the case of Wainwright v. Bridges, lately decided by this Court, the second ground of defence must prevail.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, that judgment be and is hereby rendered in favor of the defendant, releasing her from the obligation of paying the note sued on, the plaintiff and appellee paying costs in both courts.

Justices Labauve and Ibsbey dissenting.

For the reasons given in our dissenting opinion, in the case of Wainwright v. Bridges, lately decided, we dissent to the judgment in this case,

John H. Ibsley, Associate Justice of the Supreme Court.

Zenon Labauve, Associate Justice.  