Noble & Bro. v. Cullom & Co. , 44 Ala. 554 ( 1870 )

PETERS, J.

The appellants make an application, in this case, for a rehearing. This application is based mainly on the grounds that the validity of the judgments rendered after the 11th day of January, 1861, in the judicial tribunals sitting in this State, were not necessarily void ; that this was not a question of law, but a question of proof, which the court could not judicially know ; and that such judgments have been made good by the effect of the reconstruction acts of the congress of the United States, passed over the president’s veto in 1867.

The former of these questions is so fully discussed in the opinion delivered in this cause upon the hearing in chief, that the repetition of the argument on this application is deemed needless.

It is true, that errors not insisted on in the court below, generally, will not be considered for the first time on appeal to this court. — 42 Ala. 108; 9 Ala. 19 ; 17 Ala.- 696. But this court, in seeking reasons for its judgments, is not bound to confine itself to the reasons upon which the inferior tribunal acted. If the court below decided rightly} but gave a wrong reason for its judgment, this court is under no obligation to pursue a line of argument, or to restate the reasons of the court below.

The courts of a State make a part of the government of a State. — Const. Ala. 1868, art. 3, § 1. And if the government of the State is overthrown, the judicial tribunals are overthrown with it. This court takes judicial notice of the legal government of the State, and as a part of this government, it also takes notice of the legal courts of this legal government. It takes notice also of the jurisdiction and the incidents, which, by law, belong to these courts. It must, then, necessarily take notice of their changes, suspensions or suppressions, or when they cease to exist. These positive and negative facts are alike the subjects of judicial cognizance without proof. — 1 Greenl. Ev., chapter 2, §§ 4,6.

It is too patent to allow of any serious controversy, that there was a suspension, if not a suppression of the rightful legal government of the State of Alabama during the late rebellion. And it is equally well known that, in this State, the rebellion anticipated the passage of the ordinance of secession, on the 11th day of January, 1861. The public arms deposited in the arsenal at Mount Vernon,’in this State, were seized by authority of the government having control of Alabama just before that event. This deposit consisted of about 17,000 muskets and rifles, besides other military stores. And Forts Gaines and Morgan were also captured before secession, or immediately after it, by order of the same authority; and the nucleus of a volunteer army of soldiers was formed to resist, with force and arms, the laws and jurisdiction of the United States. — Annual Cycl. 1861, p. 123 ; Gov. Moore’s message to the “Gentlemen of the House of Representatives,” of the first rebel legislature held in this State after secession, January 14th, 1861; Ordinance No. 10, Convention January 7th, 1861; The United States v. Andrew B. Moore, U. S. District Court, Montgomery, Alabama, No. 1080, in manuscript. And after mentioning the purchase of canon, large quantities of lead, and “one million and five hundred thousand caps,” the governor (Moore) in his message above referred to, goes on to say : “The convention,” (i. e. of Jan. 7th, 1861,) “on the--inst., authorized me to dispatch troops from this State to aid the State of Florida in taking possession of the forts at the mouth of Pensacola harbor. Accordingly, on the--inst., I ordered three hundred men from Mobile by water, and dispatched five companies, under command of Ool. Lomax, by rail from this place, to proceed to Pensacola.” — Journal Called Session Senate of Alabama, January 11th, 1861, p. 12. These troops proceeded to Florida under this order, and accomplished a part of the purpose of their mission. And before this, and as early as the 8th day of January, 1861, commissioners were appointed by the same government, then discharging its functions in this State, to each of the slaveholding States of the Union, for the purpose of inducing them to break up the government of the United States, in conformity with the military operations above mentioned. — Journal of Convention, January 7th, 1861, pp. 16, 17. Moreover, all the officers of this State were absolved from the oath to support the constitution of the United States, which they had taken before the act of secession ; and they were all continued in office under the new government set up after secession. — Ordinance Convention, January 7th, 1861, Nos. 3 and 10, pp. 8, 16. The former of these ordinances purports to have been passed on the 29th of January, 1861, and the other on the 23d day of the same month.

Hence, then, it follows that after these acts of open and defiant rebellion, and after the passage of the ordinance last above mentioned, all persons who continued to discharge the function of any office, whether judicial or otherwise, in this State, did so as officers of the insurgent organization, which was then, and until the failure of the insurrection continued to be, the only government exercising authority in this State. This government was set up, sustained, and carried on in defiance of the authority of the constitution of the United States, and in open and intended violation of its provisions. — Pamphlet Acts, Called Session, January ilfch, 1862, passim. Such a government was, therefore, unconstitutional and utterly void, in all its departments. All the acts of a void government are necessarily void. Ex nihilo nihil fit, That which is utterly void can not be ratified. It is of no effect and absolutely null, and can not be made good, for there is nothing to make good. — 2 Burr Law Diet. 601, vox void.

This court must take judicial notice that the legal government of the State of Alabama, and its legal courts had been wholly and utterly overturned by the rebellion, before the date of the judgments in favor of Noble & Brother, and in favor of Mastin, were rendered — that is, before the 8th and 12th days of March, 1861; and tfiat the government then existing and in power in this State, was unconstitutional and void. — Texas v. White, 7 Wall. 700. This being so, these judgments were not judgments of a court that can be noticed, or its dectees enforced in this tribunal. If this be admitted — and I do not see how it can be, rationally denied — then the argument of the eminent counsel for the appellants falls to the ground. — Luther v. Borden, 7 How. 1; Scott v. Jones, 5 How. 343.

The government here relied on by the appellants, is not like that established in New Mexico, under which the case of Leitensdorfer v. Houghton, arose. — 20 How. 1761. The government in New Mexico was not void or voidable; it was set up under “the authority of the United States.” The Confederate States government in Alabama was erected in opposition and hostility to the national authority, and for the purpose of its destruction. There is, then, no analogy between these cases. The one was established by legal authority, but the other by an authority wholly illegal and void, — Mauran v. Insurance Company, 6 Wall. 1, 13, 14.

The Confederate States government in this State, from January 11, 1861, until the overthrow of the rebellion, was a mere insurgent organization, which was wholly forbidden by law. It could not confer upon itself any legal authority. It was against the public policy and the constitution of the Union; and its acts, in all its departments, are illegal and equally vicious. And this vice can not be removed by the courts. Only the legislative power can do this; and this the rightful legislative authority has refused to do. Then, this court has no law to authorize it to say that these judgments have any validity whatever, except) perhaps, as the decrees of foreign courts. — Martin v. Hewitt, June term, 1870, Chief Justice Peck, arguendo.

But it is contended by appellants that the judgments of the courts of the Confederate State government erected in the State of Alabama, during the supremacy of the late rebellion, were rendered valid and effectual in law by the act of the congress of the United States, entitled “An act to provide for the more efficient government of the rebel States,” passed over the president’s veto, on March 2d, 1867.

■ It is urged that the third clause of the first section of this enactment has this effect. The clause referred to is in these words : “3. It shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property, to suppress insurrection, disorder and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals ; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or when, in his judgment, it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose, and all interference under color of State authority, with the exercise of military authority, under this act, shall be null and void.”

The so-called Confederate government, in the State of Alabama, during the late insurrection, was either a legal government or it was an illegal government. If it was legal, it must have been a rightful and constitutional government. Then, the congress of the United States could not overthrow it, or suspend it, or interfere with it, any more than it can to-day interfere with the rightful and constitutional governments of the States of Massachusetts, Pennsylvania, or New York. It would be too palpable an absurdity to pretend that these latter governments could be so interfered with or suspended, or displaced by congress, to need an argument to refute it. — Constitution United States, art. 4, § 4; Luther v. Borden, 7 Howard 1; Scott v. Jones, 5 Howard. 343; Paschall’s Ann. Constitution United States, p. 242, et seq.; 3 Howard, 224; 13 Howard, 26.

But it has been declared, both by the congress of the Union, and by the highest judicial authority of the Union, that this insurrectionary government was illegal and void, because it was wholly unconstitutional. — Texas v. White, 7 Wall. 700; Acts of Congress, July 18th, 1867, supplemental to the reconstruction acts above quoted, § 1. This act of congress inflicts the vice of illegality upon the “government” of the insurgent organization.

It does not spare one branch of this government, or any branch of it, but it strikes down the whole. Then, the acts of every branch of it are bad. Not because the law itself was obnoxious to the constitution of the Union, for it was not so, but because the government that enacted it was unconstitutional and void, and necessarily had no legal power to enact any valid law. This was the only point decided in the case of Texas v. White, 7 Wall. 700, supra, except the question of jurisdiction.

Then the reconstruction acts did not give validity to the Texas rebel statute. Neither, then, can it give validity to the Alabama rebel judgments. Ubi eadum ratio, ibi idem jus. — Co. Litt. 10, a.

Besides this, it may be well doubted whether congress has any legitimate authority to intermeddle with the judgments of a State court, either to make them good or to make them bad, or to impose upon the legal rightful government of a State, the enforcement of the laws or judgments of a rebel insurgent organization erected in such State, in defiance of the constitution of the Union, and for treasonable purposes.

What effect shall be given to such laws and such judgments, is wholly a domestic affair, and it must be left to the rightful State government, upon its restoration, to deal with them as it pleases. — Sims’ Case, 7 Cush. Rep. 285; 8 Wheat. 1; 12 How. 293; 8 How. 82, 493; 3 How. 720; 6 How. 115; 10 How. 399; How. 522; New York v. Miln 11 Pet. 138; Gardner’s Inst. pp. 30, 31, 32.

The judgments of the rebel courts, in this instance, were not judgments of a constitutional court, and the parties who claim rights under them are not entitled to any constitutional protection. Such courts were foreign affairs.— Scott v. Jones, 5 How. 343; 19 John. R. 59; 4 Hill’s R. 160; 5 Binn. 355.

All offenders against the law are apt to think themselves ill used, if they are punished for their crimes ; and those who commit treason, the most inexcusable of all offenses, especially when committed without cause against the best government on earth, are not more free than others from this weakness. The theory that begs to have these insurrectionary governments sustained, because the insurgent power has broken down in ruin, is fatal to the security of the public peace and to the safety of the people. It should therefore find no shelter or encouragement in the people’s courts. The objection to the contrary is, that this overturns the law during the rebellion. This is not so.

It only declares that there was no government to enforce the law during this unhappy period ; and those who complain of such results, complain to denounce their own acts. The presumption that sets these insurrectionary, unlawful and forbidden governments on the basis of legal authority, by reason of their necessity, will change the republic into an empire and a tyranny for a like reason.

It destroys all logical distinction between a government of lawless force and a government founded upon a written constitution, owing its authority to the free consent of the governed; which is the true and safe American doctrine. Declaration of Independence, Eevised Code, part 1; Gard. Insts. pp. 56, 57, at top.

The rehearing is denied, with costs.

Saffold, J., dissenting.