Corbin v. Marsh

63 Ky. 193, 2 Duv. 193, 1865 Ky. LEXIS 50

• Court: Court of Appeals of Kentucky
• Decided: December 11, 1865
• Status: Published

Opinions

JUDGE ROBERTSON

delivered the opinion of the court:

The single question presented for judicial consideration in this case, is the controverted constitutionality of the act of Congress for emancipating the wives and children of slaves volunteering as soldiers in the Federal army.

The circuit court adjudged that this emancipating provision is unconstitutional, and, consequently, not law; and a majority of this court, Judge Williams dissenting, concur in that judgment.

At the threshold of this mere framework of an argument, which we intend to be as brief and condensed as the subject will allow, we premise that the Constitution of the United States, in its declared and necessary supremacy, is the same fundamental, paramount, and inviolable law of the sovereign people, at all times and under all circumstances — that it is supreme over all — the citizens, the States, and the national government in all its departments and operations, military as well as civil — and that it is as supreme in war as in peace.

These we consider axiomatic truths; and we believe that none of them, except, perhaps, the last, will be denied by a-ny statesman or jurist. But there seem to be a few of that denomination who assume that, in war, the Constitution is either totally or essentially suspended or paralyzed; and these alone practically deny its coequal supremacy in peace and in war. But this assumed exception from its vital operation at all times appears to us a self-evident heresy, as indefensible in principle as it would be despotic in practice.

The people, in adopting the' Constitution, made no such nullifying exception, and they were too wise to contemplate its suspension in war further than they then provided for it. ' And, therefore, to silence all doubt as to either its rightful supremacy or the universal and incessant prevalence of it until changed in the mode they therein prescribed, they labeled its bosom with the precautionary and unqualified stereotype — “ THIS CONSTITUTION SHALL BE THE SUPREME LAW OF .THE LAND.” Supreme law, when? Always. Where? Everywhere in the Union. It neither imports nor allows any exception. As the Constitution was made to secure liberty and property against arbitrary and ambitious power, its guarantees are most needful when there is most danger of the assumption of any such power; and when, therefore, the safety of the people needs their only protection most. Can this be denied or doubted? Surely not. Then the Constitution was made even more for the turbulence of war than the calm of peace. And, prudently contemplating seasons of war, it gave to the general government all the powers deemed necessary or safe for upholding its own supremacy, preventing usurpation, and maintaining the Union in war as well as in peace.

But as belligerent exigencies are, to some extent, peculiar, the Constitution, as far as deemed proper or safe, made some express exceptions providing for them and corresponding with them. And if, as thus moulded and finished, its powers are insufficient for the ordeal of war, in any of its forms, it is an abortion, and should be remoulded and made, if possible, • more adaptable to all emergencies and times. This, however, is the work, not of the government nor of its armies, in whose hands it would be a revolutionary job of usurpation, but it is the rightful .task of their sovereigns, the constituent and peaceful people. And we cannot doubt that, even in war, the faithful observance of the Constitution, in all its normal vitality, would be much more auspicious to success than a reckless breach of it by the official sentinels sworn to guard it.

In delegating the war power to Congress, the framers of the Constitution moulded it for a state of war, as far as they thought either necessary or safe. But, in leaving, as they did, a large margin for the contingent exercise of belligerent rights of international usage and recognition, which are extra-constitutional,, or, in other words, not conferred by the Constitution, they never contemplated the exercise of any belligerent power conflicting with the limitations or the guaranties which they were careful to adopt as fundamental securities of liberty and property against all subordinate power, whether civil or military. Even martial law, truly defined, cannot suspend the Constitution as the guardian of the person and property of a private citizen who is not an enemy to the government, nor has been guilty of no hostile act.

It is a radical and most pestilent error, far too prevalent, to assume that the belligerent powers of our Federal government, as controlled and circumscribed by its Constitution, are just what that class of powers may be admitted to be, theoretically, in European governments, unfettered by any fundamental and paramount law.

What the.Constitution prohibits, war cannot legalize. The only safe or consistent conclusion is, that neither Congress nor its army can possess any belligerent power inconsistent with the fundamental law, which is as supreme over them as it is over citizens and courts.

When the Constitution declared that “private property shall not be taken for public use without just compensation,” it undoubt,edly meant that it should never be so taken; and that, if ever so taken', the act should be void, and never divest the owner of his pre-existing and still subsisting title. No other interpretation can be consistently adopted or safely countenanced; for any other would frustrate the object of the guarantee, install anarchy, and only mock the deluded citizen.

Whatever may be the belligerent rights of more absolute governments, our limited government can have no belligerent power to take from the loyal owner of private property, for any public use, his title, without a full indemnity. It would be inexplicably strange and inconsistent to admit, as all do, that Congress cannot, in time of peace, take private property for public use without just compensation, and, nevertheless, to claim, as some seem to do, the power to take it without any compensation in time of war, when all such property is in most danger of spoliation, and in most need of the protection of this boasted palladium. This cannot be the insane genius of the Constitution which our hearts so much love, and for which so much patriotic blood has been shed. No. All its guarantees to private loyal citizens are as authoritative in war as in peace. This is the only sound or admissible theory.

And, so understanding the Constitution, we will so apply it to this case.

Where slavery is legalized, a slave is legal, substantive, and appreciable property, as much entitled to the protection of the Constitution as land, or' any other property, movable or immovable.

Joe’s wife, being the property of the appellee, when she was taken from him, could not have been lawfully taken without compensation to the owner. The act of Congress, under pretense of which she left her owner and engaged, as a free woman, in the service of the appellent (against whom the appellee obtained the judgment herein appealed from), not only offered no compensation, but manifested a fixed decision to allow none.

Then two questions here arise — 1st. Had Congress power to emancipate Joe’s wife and children? 2d. If that power existed, was it exercised so as constitutionally to divest the owner of that wife of his legal title to her? ■

1. The Constitution reserves to each State in the Union exclusive power over her own domestic institutions and relations, and certainly gives to Congress no power over slavery in a slaveholding State. In England and her colonies, where there is no fundamental guaranty, as here, of all or any property, and where parliament is politically omnipotent, and none of its acts can therefore be adjudged unconstitutional, legislative acts might take private property and emancipate colonial slaves without compensation; and, in a slaveholding colony, a commanding general, in a civil war, might abolish slavery as a war measure. But, during the late rebellion for dissolving our political union, could a Federal general, commanding an army in Tennessee, fighting under the national Constitution, and in vindication of its integrity and supremacy, have had rightful power to violate its guarantees by emancipating all the slaves in that State? We think not. Insurgent citizens of Tennessee were still, de jure, citizens of the United States — they were not national belligerents — they were not absolved from their original obligations to the Federal Constitution as their supreme law, nor deprived of their title to its protection; and the suppression of the insurrection neither needed nor authorized the abolition of all the slaves in their State by the Federal government. And how could it have needed or justified the emancipation, by Federal power, of the slaves, of union men who were fighting to preserve the Constitution and save the union? The belligerent power of either party, in an international war, may abolish slavery in the enemy’s country. But, in a civil war, altogether domestic, if the common Constitution be supreme, as ours is, and guarantees protection to slave property as ours does, there can be neither military nor civil power in the national government to abolish it, for thereby the Constitution would be violated, and, as already suggested, it is the supreme, or highest human law, in war as well as peace.

But however all this may be, under what pretense could Congress assume power to abolish slavery in Kentucky, a devoted union State, always for a restoration of the union, and nothing more nor. less, by the war which rebellion made necessary, and as freely and' gallantly as any other State shedding her blood to uphold the national charter of union, and, by saving it from degradation, to save the union itself from dismemberment? Congress has never exercised, nor, so far as we know, ever claimed, to the full extent, any such power. But, without asserting a power so comprehensive and groundless, Congress assumed the power to enlist slaves as soldiers, and the incidental power to emancipate' all such soldiers, and, as “ necessary and proper means” to the end of enlistment, the implied power to emancipate their wives and children. The authority to accomplish all this we cannot see nor concede.

Waiving the policy, with which this court has nothing to do, or, therefore, to say, we admit the mere power to take slaves into the military service as any other private property taken for any other public use. 'But we gravely doubt, and, therefore, cannot admit, thé power to take more than the use of a slave during the prescribed period of military service. Consequently, we are not prepared to acknowledge the power to emancipate the soldier slave. But a concession of that power would not extend its principle to the soldier’s “ wife, children, and friends” — all in the some category of motive power, and none of which motivity would apply to a drafted soldier whose own will docs not move him. And why was it either necessary or proper to substitute the far more expensive process of volunteering, and even without a legal will? The anomalous character of the whole procedure might induce an apprehension that the object was, not .to supply soldiers that could not be otherwise as certainly obtained, but only to cripple slavery, and inaugurate the ultimate abolition of it. Had this been the avowed and only purpose, the act was unauthorized. But this court must look only to the power and never presume an unconstitutional motive for its exercise, as properly adjudged by the United States supreme court in Fletcher vs. Peck. Whatever may have been the motive, it was not more difficult to draft slaves than free men; and volunteering, even at the same cost, would have left no excuse for superadding the extraordinary bonus of the freedom of the wives and children of slave husbands and fathers who would volunteer as soldiers. That costly and invidious burden, imposed on comparatively a few men for the benefit of all the public, was not only unnecessary, but was unconstitutional on account of its glaring inequalty. As well might Congress saddle one man, or one class of men, with the whole burden of the public debt; for this, though much more oppressive in degree, is the same in principle, policy, and justice. The children and wives of some of those soldiers might have been worth many thousands of dollars — and why should the owner of such a family be required to contribute so large a sum for the enlistment of one black soldier, who might have been enlisted for no more than the much lighter cost of a white soldier? The government must pay the owner of an enlisted slave his value, and, to that extent, he costs so much more than a free soldier; and, if the black soldier have a wife or children, or both, their value augments the cost of his enlistment so as to make it, relatively to that of a free white soldier, enormous.

But, as already suggested, the government repudiates any compensation to the owner of the black soldier’s wife and children, and, thereby, leaving him without compensation, taxes him that much more than the mass of other • citizens whose means may be ampler than his.

The emancipation of wives and children cannot be either a necessary or proper mean to the' end of enlisting soldiers— freedom to all the enslaved friends of the black volunteer would be a still more persuasive bonus, and a right to his master’s land, worth in some cases $100,000, would be even more tempting; and surely, if any one of these means be constitutional, the others are equally so. No one of them is constitutional. But the one adopted effected the object contemplated, and now it may not be important to former owners of slaves, generally, whether it was constitutional or not. But this case must be decided; the decision depends on a constitutional question, and our duty is not only to decide it but to decide it according to our own judgment.

2d. But if we are mistaken in the opinion that the emancipation of the wives and children of enlisted slaves was not necessary means to a constitutional end, we are, nevertheless, satisfied, that, without compensation either paid, secured, or promised, the owner in this case was never divested of his title to Joe's wife.

The Federal guarantee of private property against the power of the government is substantially incorporated in every State constitution. And while the national and evexy State judiciary have concurred in the opinion that compensation, to the extent of the value of the property, is indispensable to the lawfulness of the taking of it by the government, State or national, for public use, there is some diversity among them as to the necessary time and mode of making that compensation — some requiring prepayment, others considering such payment either made or “secured" sufficient, but not defining the security. Our own opinion is, that, as a citizen cannot coerce the governmexxt nor compel it to make an appropriation of money to pay him, its mere promise, either expressed or implied, is not a fulfillment of the conservative purpose of the guarantee, because any other construction might often evade the object and nullify the provisions of it, and thus defeat the end it aimed to accomplish. But however this may be, pay must be assured. What kind of security would be equivalent to payment is a metaphysical question hard to solve, and respecting which different minds would essentially differ. In cases of extreme necessity, when the public interest requires the use of private property before the ascertainment and payment of its value can, consistently with that interest, be conveniently made, the owner must submit to the temporary privation on the principle that individual interest must yield to public necessity, as in cases of private houses torn down in a city to save other houses from combustion — of private property destroyed to prevent a public enemy from taking it — or of jettison for saving a ship, and as much else as possible, by throwing overboard as much of the freight as necessary for that end. But, in all such cases, the owner of the property so taken from him is indisputably entitled to indemnity. In the case of property destroyed by the government, the loser must be indemnified by the government; and in the city and marine cases, suits in equity, against the persons benefited, may, as conclusively adjudged, be maintained for pro rata contribution. In all such cases, the necessity which overrules the law’s defense does not impair its power of retribution. And this is all that Hamilton and Madison meant, when, in the Federalist, they spoke of the irresistible power of military necessity, whose individual wrongs no constitutional barrier could prevent, but constitutional guarantees might repair. If a horse, or slave, or house be taken by the government and applied to public use, until just compensation shall have been made, the owner, though deprived of the possession against his will, yet retains the title and the incidental right of re-entry or recaption, as a security for payment, unless, in a reasonable time, the value shall have been legally fixed and paid or offered.

In Haight vs. Morris (4th W. C. C. R.), Justice Washington, of the supreme court of the United States, adjudged that “ until full indemnity is afforded the party, the power of taking his property cannot be exercised — and chancery will grant an injunction to stay proceedings until indemnity.” Justice Baldwin, of the same court, decided the same thing. (1st Bald., 203.) And Chancellor Kent indorsed the same doctrine. (2d J. Ch. R., 162.)

These concurrent opinions of eminent jurists clearly imply that, until indemnity, the owner is not divested of his title, and, as his best security, may enjoin a disturbance of his possession — and, of course, if possession be prematurely and wrongfully taken from him, his title does not go with it.

The fact that a slave is a person, does not qualify the owner’s right of property, nor entitle the government to any more right to take that property than any other kind; nor does the fact that, in countries where there is no constitutional inhibition, and even in the American colonies and Confederate States, before the adoption of the Federal Constitution, slaves enlisted as soldiers were sometimes emancipated, does not prove that, under our Constitution,’ the same thing "can be lawfully done; and certainly does not tend to prove that such soldiers’ wives are in the same category; nor does the fact that a portion of the section, which contains the unqualified guarantee of private property, qualifies, in time of war, other general guarantees of some other rights, tend to show that any qualification of the guarantee of property was intended; but the tendency is the other way, implying that, whenever a general guarantee was intended to be modified by war, the Constitution so provided expressly, as we before stated, and as may be illustrated in other instances. This alone would be a sufficient answer to the assumption that the war power is unlimited by constitutional restrictions.

In this case there was, .as to Joe’s wife, neither any unavoidable necessity for her instant liberation, nor any compensation provided; but Congress negatived all purpose to pay or provide for paying her owner anything. We are clearly satisfied, for the foregoing reasons, that her owner’s' title was not divested by act of Congress. No martial law, properly defined, could have emancipated her. And there is no pretense of any such emancipation.

We repeat, that war, in the whole amplitude of its legitimate powers, cannot legalize what the Constitution prohibits, nor destroy what it guarantees.

Then, in any view we have 'taken, or can consistently or conscientiously take, of this case, Joe’s enlistment did-not emancipate his wife nor divest her owner’s title to her; and, consequently, he had a legal right to the judgment now sought to be reversed.

Wherefore, the judgment is affirmed.