
    William L. Pickett and others vs. John H. Wilkins and Wife and others.
    
      Partition — Slaves, when emancipated.
    
    Partition of an intestate’s estate, consisting of lands and slaves, made and confirmed, without objection then taken, by decree of the Court of Equity in 1864, is valid, though to some of the parties, now complaining, no part of the lands, but only slaves, were allotted.
    Slaves, in this State, did not become, either de jure or defacto, free until 1865, when they were emancipated by the action of the United States authorities.
    BEFORE LESESNE, OH., AT CHESTER, JULY, 1866.
    The decree of his Honor, the Chancellor, is as follows:
    Lesesne, Ch. Philip H. Pickett died in the month of July, 1862, intestate, leaving a large estate, consisting of lands, negroes, and some other personalty, and leaving as his heirs and distributees, his widow, Mary Jane Pickett, now the wife of the defendant, John H. Wilkins, and five brothers and sisters, to wit, John H. Pickett, William L. Pickett, (the plaintiff,) Susannah A. Simmons, wife of William EL Simmons, Patience P. Lumpkin, wife of Abram F. Lumpkin, and Robert EL Pickett. Proceedings for partition of the estate among them were instituted in this Court, in October, 1863, and at July Term, 1864, the return of the Commissioners appointed to make the partition was confirmed, without any exception being taken to it by any of the parties, all of whom accordingly received the shares assigned to them.
    In that partition all the lands fell to the widow, John H. Pickett, Robert EL Pickett, and Mrs. Lumpkin, each of whom, excepting the last named, also received negroes and other personalty. The plaintiffs (William L. Pickett and Mrs. Simmons) received negroes only.
    The bill charges that negroes were not property at the time of the partition, and claims contribution from the defendants, in proportion to the value of the land and personalty (other than negroes) which they severally received, so as to make good to the plaintiffs the shares of the estate to which they were entitled; or else that a new partition be had of the estate, exclusive of the negroes. ■
    The plaintiffs insist that the President of the United States emancipated all slaves in the State by his proclamation, which went into effect on the first day of January, 1863, and was fully executed during the year 1865, as to the negroes in question; and that therefore the said negroes were not property when the partition took place in 1864, or, if property at all, the title was at that time affected by the President’s act, which was then in the process of being executed, and was afterwards fully executed — the title to the negroes destroyed — and the same recognized and confirmed by the Constitution of the State.
    Two questions are thus presented: 1st, Was the title to these negroes defective at the date of the partition ? 2d, If it was so, are the plaintiffs entitled to the relief they ask for ?
    These negroes were not made free by the President’s proclamation, in law, any more than they were in fact, because the President had not the right to make them free. The institution of slavery was recognized by the Constitution of the United States, and while that instrument remained unaltered, a slave could be lawfully emancipated only in accordance with the laws of the State to which he belonged. But it is said the State of South Carolina, in her new Constitution, established on the twenty-seventh day of September, 1865, acknowledged emancipation as having been effected by the President’s proclamation," and confirmed the act, and thereby made it legal, retrospectively.
    The words used in the Constitution-(Art. IX., Sect. 11) are as follows: “ The slaves in South Carolina, having been emancipated by the action of the United States authorities, neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall ever be re-established in this State.” Now the thing, which it was the purpose of this clause to ordain, was, that slavery should not thenceforward exist in the-State. ' This is done in the latter part of it. ’■ The preceding part is merely a recital, by way of preamble, of the great historical fact that the institution of slavery in South Carolina had been destroyed. This recital was of course intended to state the truth. And as emancipation was not accom--plished by the proclamation, either in law or in fact, we must not say that the words of the Constitution ascribe emancipation to the proclamation as its cause, unless those words admit of no other construction.
    But such a construction, in my judgment, is not demanded. Emancipation, it is true, was brought about “ by the action of the United States authoritiesbut that action does not necessarily mean the issuing of the President’s proclamation. It was, in fact, accomplished by the conquest of the country. ■ Until that took place, slavery continued after the proclamation, just as it had existed before, and it ceased to exist in the different parts of the State as they fell into the hands of the conqueror. The ^proclamation was, in effect, simply an advertisement of what would be a certain consequence of conquest. It would have been a mere Irutum fulmen, if it had not been followed by conquest. Assuming, then, that the Convention meant to be true to history, and giving no forced significance to their language, it is only proper to interpret the action spoken of as referring to the conquest of the country, and the United States authorities as meaning the conquering generals. It was the proclamation of freedom made by them which possessed real efficacy. If the view thus expressed be correct, it is an answer to the ground taken, that the destruction, of title which was consummated in 1865, should relate back to some effect produced upon it by the proclamation in 1863. ■
    The conclusion to which I have come, then, is, that the title to the negroes was not defective at the time of the partition. There was danger of their being made free by force; but that no more constituted a defect of title, than would danger of their being stolen and carried out of the jurisdiction.
    This disposes of the case, and makes it unnecessary to consider the question, whether, if the efficacy claimed for the President’s proclamation were conceded to it, the plaintiffs would be entitled to the relief they ask for. I will say, however, that, admitting the existence, to some extent, of an implied mutual warranty among parties in partition, it does not apply to cases where there is no unknown fact. The condition of slavery at the time of this partition — the certainty of its destruction in the event of the conquest of the country — was well known to the plaintiffs, and I must suppose they would have excepted to the return, and claimed shares of the lands, if they had not been very confident of the success of the Southern cause.
    It is ordered and decreed that the bill be dismissed.
    The plaintiffs appealed, on the grounds:
    1. That there is a warranty annexed to every petition.
    Co. Litt. 173 174 a; 2 Cruise, 149; Hilliard, Real Estate, 360; St. 31, Hen. 8, ch. 1, 2 Stat. 571; Allnatt on Partition, 156, 160, Law Lib., 1st series, 63; 4 Kent, 407; Feather vs. Strohecker, 3 Penn. 505; Weeks vs. Heas, 3 Watts & Sergt.; Burton, Real Prop. 108, 13 Law Lib. 49, 3d series.
    
      2. That the title to the slaves assigned to complainants was fatally defective at the time of partition.
    First. To establish this, complainants rely upon, President Lincoln’s proclamation of emancipation, which was operative January 1, 1863.
    Second. Andrew Johnson’s proclamation appointing a Provisional Governor, and authorizing the call of a convention of the people to organize a State government, prescribing the taking and subscribing of the “ amnesty oath” as a qualification of voters and members.
    Third. The proclamation of the Provisional Governor, calling a convention, and prescribing the same oath as a qualification of voters and members.
    Fourth. The acceptance by the people of the conditions imposed, by taking the oath and organizing the present Government.
    Fifth. By the adoption of a constitution recognizing the aboliuion of slavery.
    Pres. Lincoln’s Proc. 1862; Pres. Johnson’s Proc. 1865 ; Repts. Res. 1865, 4; Gov. Perry’s Proc. idem, 5 ; Const’n, art. ix. 11; Amnesty Oath, Pres.’s Proc. 29th May, 1865; Yattel, 364.
    
      Kershaw, Melton, for appellant.
    
      Williams, Thomson, contra.
   The opinion of the Court was delivered by

Lesesne, Ch.

This Court concurs unanimously in the circuit decree. An argument has been urged here which is based on the terms of the amnesty oath. That oath was required as a qualification for election to the Convention of 1865. Its terms are: “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.” And the proclamation of January 1, 1863, on that subject, had declared that “all persons held as slaves within said designated States, and parts of States, are, and henceforth shall be, free.” It is contended, that the oath embodies one of the “ terms of peace” which were proposed to the State, and accepted, and therefore the State must maintain that slavery ceased to exist on the 1st of January, 1863. But we have seen that negroes in South Carolina were slaves, to all intents and purposes, long after the 1st of January, 1863. That is a fact which could not be affected by any thing the State could do. It would have remained so, even if the clause on this subject, in the new Constitution, had affirmed, in the words of the Proclamation, that, on the contrary, they were free on and after the 1st of January, 1863. They were treated as slaves after that time by the citizens of the State, and by the law — that law which alone was operative within her limits while she was a belligerent power. Most of those, too, who took the oath were owners of slaves at and after the time mentioned. How could they maintain the proposition, that negroes were free on a certain day, having themselves, after that time, bought and sold them as slaves ? They did not mean to do so; no one understood them as doing so. The true obligation imposed by the oath was, to acknowledge and uphold the new status which the negro had in fact acquired. It could not change the past, but only look to the future. And the Convention of 1865, in the eleventh section of the ninth article of the Constitution, carried out the idea I have endeavored to express.

It is adjudged and decreed, that the appeal be dismissed, . and the circuit decree affirmed.

Dunkin, Oh. J., Wardlaw, A. J., Glover and Munro, J. J., Carroll, 0., Inglis, A. J., Moses and Dawkins, J. J., and Johnson, C., concurred. ■

Decree ■affirmed,  