The questions involved in this cause, and which have been argued at length and with unusual ability by the learned counsel in behalf of appellant and appellees, have received the consideration which their magnitude a,nd gravity demanded.
The assignments of error, so far as they are insisted on in the argument of counsel for appellant, will be disposed of in the order presented on the record.
I. Before disposing of each assignment of error we will refer to certain principles of law which we deem applicable and decisive of the most material questions raised by the record.
1. Parol evidence is admissible to show that tbe consideration of a contract is illegal. — 2 Story on Contracts, § 675 ; 22 Alabama, 380.
2. If the consideration is illegal in part, it vitiates the whole contract, where it is an entirety and not seve.rablo. 1 Story on Contracts, §§ 458, 627.
3. A contract made by an artificial person Í3 void, if the consideration is illegal, or the subject matter of the contract is against public policy. In this respect it stands on the same ground as a natural person. — Ang. & Am. on Corporations, § 256.
*5554. If a party pays money on an illegal contract, he can not recover it back in a suit in which he insists on the existing validity of the contract, but to do so, must, before it is fully executed, rescind it, or do some act which, in law, is equivalent to a rescisión. — Simpson v. Bloss, 7 Taunt. 246; Holware v. Johnson, Cowp. 343; Allen v. Rescous, 2 Lev. 174 ; White v. Bank, 22 Pick. 181; Wheeler v. Russel, 17 ib. 281; Shefner v. Gordon, 12 East, 304; Belding v. Pitkin, 2 Caines, 149 ; Bank v. Merrick, 14 Mass. 322; Story on Contracts, § 492.
5. When the consideration is legal and the acts to be performed by the contract are in part legal and part illegal, it may be enforced as to the acts which are legal, if capable of separation from the illegal. — 1 Story on Contracts, § 627.
II. Under our peculiar system of goverment, composed of States clothed with certain sovereign powers, and a general government possessing certain national and sovereign powers, which the federal constitution declares supreme over the former, it becomes a matter of no insignificant importance, and of no inconsiderable perplexity to solve satisfactorily the questions presented on this record. Ordinarily, a sovereignty can not make a contract obnoxious to the principle which declares all illegal contracts void or voidable. In other words, it can not be said with strict propriety that a sovereign power can, in a contract, violate its public policy, or make a contract which can be assailed in its own courts on that ground. For the contract which it makes is as much a declaration of its policy as any preexisting law or policy. But in a government like ours, where, in theory at least, all sovereignty is in the people, and where they have conferred on the State and national governments only certain sovereign powers, retaining all inherent sovereignty in themselves, it does not seem that the same rule would be applicable to contracts made by the government, as in a government in which the sovereignty inherent in the people, has been vested in it — the government.
A government like ours, with limited and well defined powers, can not adopt any law, or make any contract, *556which can be enforced in the courts, which is hostile to, or violative of the fundamental law — the constitution of the United States. And all such contracts, whether made by the United States, the States, or individuals, which are clearly in contravention of the provisions of this instrument or of its evident spirit and meaning, are alike reprehensible and invalid. The constitution is the supreme law of the land, and all laws and contracts in derogation of its provisions and policy, must necessarily be inoperative, at least, in the courts of the country.
III. It would seem, therefore, to follow that, the act of any State which is aimed at the overthrow of the constitution, or the solidity of the government, can not be the foundation of a valid legal demand, or stand the test of judicial scrutiny when guided by the principles of international and constitutional jurisprudence. And this, though such act might, at the time done, have been in conformity to the law and policy of a government de facto, formed within the boundary of the general government. The supposed defacto government having been overthrown and the general government having asserted and maintained its integrity and authority, no act done within such de facto government in antagonism to the constitution of the United States can be considered so far valid as to be enforcible in law, and this whether done by the authorities or departments of the State or national government, or by natural or artificial persons.
If, then, the State, through the Governor, made the contract with the Arms Manufacturing Company, with the intent to aid the Confederate States in the war with the general government, whether anything was ever done or not to carry out the contract, such illegal intention would vitiate the contract, and it could not be enforceable at its instance. — Scheible v. Bacho, in manuscript, January term, 1868; Kennett v. Chambers, How. U. S. 44; Dixon v. Barclay, 22 Ala. 380.
The intention of a State, like that of a corporation, must be ascertained by the acts and declarations of its constituted authorities and agents acting within the scope of their duties. — Rives v. Plk. R. Co., 30 Ala. 92.
*557The question of intent is one which has been held by this court to be peculiarly within the province of a jury. Morris v. Hall, in manuscript, at January term, 1868, and cases therein cited ; Lanier v. Branch Bank of Montgomery, 18 Ala. 628.
IY. The pleas were pleaded in short, by consent, and being so plead, those demurred to are substantially good upon the principles herein laid down, and the court did not err in overruling the demurrer upon the grounds assigned therein.
Y. The evidence of Judge Goldthwaite was not inadmissible upon the objection made thereto.
The objection made to the introduction of the acts and resolutions of the legislature, and extracts of the messages of the several governors, is too general and indefinite to avail the appellant. No particular act, resolution, or message is pointed out in the bill of exceptions, or by counsel in this court, and by such an objection this court is not called on to pass upon their admissibility.- Walker v. Walker’s Ex’r, 34 Ala. 469 ; Rupert & Cassity v. Elston, Ex’r, 35 ib. 79 ; Wood v. Barker, 37 ib. 60 ; ib. 369.
Gilmer was a competent witness by virtue of section 2704 of the Eevised Code. Its language is too broad and general for us to restrict it to suits between individuals. We have on several occasions held that it was applicable to a suit between a corporation and a natural person. And whether this suit is to be treated as commenced by the .governor, or the State, the witness was competent.
YII. It is a fundamental principle that the court, and not the jury, must construe statutes, written instruments, <fcc.N But does this exclude from the jury the consideration of such statutes, instruments, &c., whenever any right is predicated on them, and it is assailed for fraud, or illegal intent ? Does the-intention to accomplish an illegal act by a contract vitiate it ? We say it does, if the contract is made to affectuate the illegal intention. If an act done by a corporation is assailed for illegality, and the resolutions of the constituted authorities of such corporation were introduced in evidence, it would be. the duty of the court to construe such resolutions, and the court would look to the *558intention of such authorities to aid it in construing them. But this rule has never been considered as excluding from the consideration of the jury such resolutions in connection with the evidence, in determining a question of fraud; or, where the intent with which the transaction was entered into, becomes a question for their determination, as excluding from them the consideration of such resolutions, or other documentary evidence. For while the court could not, upon established principles, declare a contract illegal on its face, yet it might contain certain indicea of fraud or of the intent charged, as, with other evidence, might make it clear and satisfactory to a jury. — Dixon v. Barclay, 22 Ala. 379.
So where the State or the Governor sues upon a contract founded upon a public act, and the former is assailed for illegality, and the act and contract are in evidence before the jury, we do not see how it would be erroneous for the court to charge the jury that they might look to the act and contract in connection with the other evidence in determining the intent with which the contract was made, where the intent is material to the issue.
A State, when it enters into a contract with its citizens can claim no exemption from the rules of law applicable to contracts between individuals. And all acts which relate to the contract, and all declarations of agents, which, in the case of a citizen, would affect the contract, must be held as in like manner affecting a contract made by the State-And as the acts and resolutions of the State legislature and portions of the messages of the governor were introduced in evidence, without any valid objection thereto, so far as we can see from the record, there was no error committed by the court in charging the jury that they might look at the acts and resolutions, and the official acts of the officers of the State, in arriving at what was the intention of the State, it being apparent from the record that the court referred to such acts, resolutions and official acts of officers as were in evidence. In fact, that portion of the charges which instructed them that they might look “ at all the facts in proof,” or if they believed “from the evidence,” &c., in effect, included such acts and resolutions, &c., which had been *559introduced in evidence. While it is the duty of the court to construe documentary evidence, yet it is proper for the jury to look at such proof in connection with the other evidence, in making up their verdict on the issues shown in this record.
There was no error in the charges given, nor in the refusal to gNe the charges asked.
Judgment affirmed.
Judge, J., not sitting.