Chisholm v. Coleman

43 Ala. 204 | Ala. | 1869

PECK, C. J.

The facts stated in appellee’s petition, we think sufficient upon which to determine this case; certainly they are, when taken in connection with such facts as the court is judicially bound to know.

In this case, much of the argument of the learned counsel, on both sides, was devoted to the question, what was the nature and character of the government of the so-called Confederate States, and the government of this State, during the existence of the late rebellion ? It is a question that had much of my thoughts before the argument of this case, and my matured and deliberate judgment then was, and still is, that in no proper legal sense, can either of them be held to have been governments de facto. We admit they were governments that had in their power the lives, liberty, and property, of all men within their borders, and did with them whatsoever they pleased; but no one, we think, who is able to speak of them with candor, and without prejudice, will say they were governments friendly to liberty and equality.

A government de facto, in the proper legal sense, we understand to be, a government that unlawfully gets the possession and control of the rightful legal government, and maintains itself there, by force and arms, against the will of the rightful legal government, and claims to exercise the powers thereof.

Such was not the character of either of said governments. The counsel of the appellee spoke hesitatingly of the government of the said Confederate States; did not seem to maintain, without doubting, that that government ever was a government de facto, but strongly and most earnestly insisted that such was the character of the government in this State during that period. They, or, at least one of them, contended that the government in this State did get possession of the legal, rightful government in the State of Alabama. It is admitted, it had the possession of the territory of the State, and control over the people within said territory, but it did not, and did not pretend to have, the possession of that lawful, constitutional government of said State, that was admitted into the Union, by the constitution and laws of the United States, in the year 1819 — the government that thereby became a constituent part, and member of that great Union of States and governments, known and called, “ The United States of America.” No ; that government it destroyed. The government in this State, during the rebellion, never was, and never claimed to be, a part and member of the United States, or the government thereof. It claimed to be, and was, a constituent part and member of the said Confederate States, and, being so, partook of the nature and character of that government, of which it formed a part; and it could have no other nature and character, any more than can the branch have a different nature and character from that of the vine. That the government of this State, and the government of the rebel States, were parts of, and constituted the government of the Confederate States, we suppose, no one will deny. They were, therefore, one in essence and substance, with the said Confederate government. If that government was not, in a proper legal sense, a government de facto, neither were, or could, the governments of the several rebel States, be such, each one of which, as we have said, forming and composing a part of the said Confederate government. They were, therefore, rebel governments, and nothing more — governments in hostility to, and not parts of, the government of the United States. They were not even struggling to get the possession of the rightful government, or to exercise its powers, but to set up and establish a new, separate, distinct and hostile government, partaking in nothing in common, with the legal rightful governments ; but in everything, in nature, essence and character, utterly in opposition to, and using their utmost powers and strength, by military force and war, to overthrow them. This, for a time, they succeeded in doing, in the several rebel States, but altogether failed to accomplish, as to the United States, and were all of them, at length, overthrown and destroyed by the military forces of the United States. They came into being illegally, by force, and by-force were subjugated and destroyed, and the rightful governments, in most of the States, have been reconstructed, restored and re-united with the government of the United States.

It is said, however, the government of the Confederate States has been recognized by the political departments of the United States, a? agovernment.de facto. If that were so, we would feel bound so to recognize, as such, both it and the government of the several rebel States, of which it was composed, and by which it was formed; for in all political questions the courts follow and act in conformity to the decisions of the political departments of the government. But we deny that the political departments of the government of the United States have ever recognized the said Confederate government as a government de facto. It is true, the said Confederate government, from principles of humanity, was recognized sub modo, in a certain sense, as an organization, or government, if you please so to call it, illegal and traitorous in character, but having such power as rendered it necessary to treat with it, for the exchange and humane treatment of prisoners, &o., and, per-baps, in a few other special cases, but were always careful not to recognize it, in the proper sense of the terms, as a government de facto — a government that could impose upon the government of the United States, or of the several States, the obligation, either morally or legally, to pay its debts, or the salary of its officers.

We are aware, that this view of the matter is not in harmony with the decisions of our predecessors, on the same subject, and, in so far as they are in conflict with this opinion, they are hereby overruled. We cite no authorities in support of this opinion, for the reason, that there are no cases analogous to it; neither the political or judicial •history of the world furnish any such case; the peculiar nature and character of our Union and governments, both national and State, render it impossible there should be. Sometimes the struggle in England is referred to ; we mean, what is known in history as the war of the Roses, between the houses of York and Lancaster: There, however, the contest was for the same crown and government, and not for a new crown and government; sometimes they fell into the hands of one, and sometimes into the hands of the other royal contestants; and the woes that this struggle caused for many years, sacrificed the best blood of the kingdom. But these wars never determined or settled the question, which of the two royal houses was rightfully entitled to the crown and government, but they were at length terminated, not by the sword, but at the marriage altar; the prince of one house marrying the princess of the other, and thus uniting both rights in the same hands. No one, we think, can fail to see, there is no proper analogy — no similarity even, between that case and the one we are considering, except that both are, perhaps, properly called civil wars. And the same may be said of every other historical case we know anything about. But, as we do not place our decision upon this view of the case, we will not lengthen our opinion by pursuing this new and inexplicable question further. Ye rest our decision upon the fact, that the appellee, by entering the military service, and becoming the commander of a regiment, in the army of the said Confederate States, thereby forfeited and vacated the office of judge of the circuit court of the State of Alabama, to which he was elected in the year 1858. The 11th section of the 5th article of the constitution- of this State, at that time declares, that “ judges of the supreme and circuit courts, and courts of chancery, shall receive no fees or perquisites of office, nor hold any other office of profit or trust under this State, the United States, or any other power.

In this case, then, there could not be, and, therefore, there was no necessity there should be, any judicial proceeding to try and determine the fact of forfeiture and vacancy ; and, we further hold, that said appellee, by his election referred to in his petition, on the first Monday in May, in the year 1861, did not thereby become a judge of the legal government of the State of Alabama, but he thereby became a judge of the rebel government of said State. He was elected under rebel laws and a rebel constitution,' and took the oath required by that constitution— an oath to support the constitution and laws of said rebel State of Alabama, and the constitution and laws of said Confederate government, and not an oath to support the constitution and laws of the legitimate government of the State of Alabama, and the constitution and laws of the United States. He did not, under said election, serve the legitimate government of the said State, but the rebel government of Alabama. Now, we hold to the doctrine, that the laborer is worthy of his hire, but he must seek his pay from the master he serves. If, therefore, he served the rebel State of Alabama, he must look to the rebel State of Alabama for his compensation. We think we might well hold, the legitimate government of- Alabama, the present loyal government of said State, owes him nothing; but as we cannot know, (however much we may suspect the fact,) that he did not remain loyal to the old government of said State until the 16th day of May, 1862, when he was, perhaps, tempted by the sword and epaulettes of the said Confederate States, to abandon his allegiance to the true State of Alabama, the State in which he had won all his honors, and entered .the service, and took office under another and hostile power, by which act his said office of judge of the circuit court, of the lawful State of Alabama, became vacant. Lest we might be wrong, and do injustice to the appellee by so doing, we decide, he is entitled to his salary, as judge of the seventh judicial circuit of said State, from and after the said 81st day of March, in the year 1862, up to the said 16th day of May, in the same year. As the order and judgment of 'the court below are not in conformity to this opinion, the same are reversed; and we proceed to render here, the order and judgment that should have been rendered by the court below.

It is, therefore, considered and ordered by this court, that the present auditor of public accounts of the State of Alabama, the successor in office of the said M. A. Chisholm, late comptroller, &c., on the application and request of the said Augustus A. Coleman, issue his warrant in favor of said Augustus A. Coleman for such sum as may be due him, as a judge of the circuit court of said State, from and after the 31st day of March, in the year 1862, up to the 16th day of May, in the same year, or that he show cause, at the next term of this court, on the first motion day of said court, why he hath not done so.