¶1In the case of Ferdinand Smith v. The State, decided at the January term, 1866, (39 Ala. 706,) we *734held as follows: “It is not denied that slavery has had no existence in this State, since the 22d day of September» 1865, on which day the State convention, then assembled at the city of Montgomery, acted on the subject; but it is urged that it did exist in law, if not in fact, until that action was had. This position amounts to a denial of the legality of the destruction of slavery by the act of war, — a question it would be utterly vain and useless to discuss. It is a historical fact, that the consummation was effected by the act of war, anterior to the action of the State convention ; and whether justly or unjustly, legally or illegally, are not now practical questions. This was the view, in effect, taken by the State convention, in its action above referred to. That body was not guilty of the absurdity of abolishing slavery, which did not then exist; but it gave a high and solemn sanction to the truth of the fact, before well known, that the ‘institution5 of slavery had ‘been destroyed in the State of Alabama,5 by expressly so declaring, and prohibiting the existence of slavery in the State, in the future, except as a punishment for crime. — Ordinance No. 6, p. 45.55
¶2The counsel for appellant earnestly and ably contends for a decision in this case, which would be in direct hostility to the conclusion attained upon the same question, in Smith v. The State, supra.We decline to disturb the decision in that case; and upon its authority, the judgment of the court below in this case must be affirmed.