In this suit, a motion is made to set aside the submission of the cause for the consideration and judgment of this court, which seems to have been made at the same term that the transcript was filed.
The grounds of this motion are — that the cause has been irregularly brought into this court; that it has been brought here by consent, and not by appeal in the regular way prescribed by the statute. No doubt that this court may take jurisdiction of the subject-matter of this suit. It appears that the transcript was filed in this court, on the 16th day of June, 1868, and that errors were thereupon regularly assigned in the names of Noble & Brother, and Mary Mas-tin and William A. Graham, as executors of the last will and testament of Peter B. Mastín, deceased, by Chilton & Thorington, and Eice, Semple & Goldthwaite, their respective attorneys. And at the same term, the appellees, Wil*556liam O. Baldwin, by his attorneys, Martin & Sayre, and Smith Cullom & Co., by Martin & Sayre, their attorneys, joined in the errors thus assigned. And thereupon the cause was submitted on briefs, at the same term, for the judgment of this court. It is also known to the court, that the distinguished practitioners, above named, were, at the time of the assignment and joinder in error, as above shown, attorneys of this court. Under this order of submission, this case came into the hands of the present court, and has been held under advisement until the present term.
The motion to set aside the submission heretofore made in this case, is denied, because it violates the agreement of the parties upon bringing the case into this court, which is filed with the transcript, and it would operate as an injustice and surprise upon the other litigants adversely interested, who relied upon this agreement. The revoking and setting aside of the order of submission is a matter of grace, and not a matter of right, and it rests in the discretion of the court to grant it, or to refuse it. In such a case, the court will never exercise its discretion so as to injure one party, who may have been betrayed by the seeming bad faith of another. Such has been the practice of our predecessors in this tribunal, and we think it sufficiently well sustained by reason and authority. — Br. Bk. Decatur v. McCullum, 20 Ala. 270; Thompson v. Lee, 28 Ala. 453; 3 Chitty Gen. Pr. 55, 56, marg.
The appellants will pay the costs of this motion, to be equally divided between them; the appellants, Noble & Brother, one-half, and the executors of Peter B. Mastín, deceased, one-half.
This motion having been disposed of, we turn to the principal case. The transcript shows, that the only cause in this court is the controversy from the circuit court of Montgomery county upon the proeedings in that court in the nature of a suit of interpleader between William O. Baldwin as one party, Smith Oullom & Co. as another party, Noble & Brother as another party, and the executors of the last will and testament of Peter B. Mastín, deceased, as another party, to ascertain which of these several par*557ties was entitled to a certain sum of money which, had been collected by the sheriff of said county of Montgomery, by sale under certain executions in his hands, which had been issued on certain judgments in favor of the several parties above named, as plaintiffs, against Thomas H. Watts, as defendant; which judgments are each more particularly described below.
The proceedings in the city or county court could not be joined in the same appeal with the proceedings from the circuit court. We can not, therefore, regard these former proceedings, except as evidence offered on the trial in the circuit court. Neither could the judgments on the motions to amend the sheriff’s returns be made a part of this appeal. This proceeding only brings up the judgment on the interpleader. The judgments on the motion to amend the several returns on the fi.fa. were final and mustbe separately appealed from; but as evidence they can not be collaterally impeached. — 29 Ala. 92; Creswell et al. v. Comm'rs Court, 24 Ala. 282; Davis v. Calhoun, 24 Ala. 437.
Then, waiving further discussion of these questions, the case narrows itself, in effect, down to the judgment in the interpleader suit, as to the right to share in the distribution of the money made on the sheriff’s sale by authority of the fi. fa., as shown in the record. The circuit court gave judgment in the interpleader suit in favor of Baldwin on his motion, and also in favor of Smith Cullom & Co., on their motion against the sheriff, Johnson, who had collected the money in controversy ; and refused to give judgment in favor of Noble & Brother, or in favor of the executors of Mastín, or in favor of Isaac O. Eobinson, or in favor of the executors of Eose, each of whom claimed distribution of said funds, to them, on their judgments. But it appears, by the agreement of counsel filed with the record, and by the assignment of errors, that only Noble & Brother, and the executors of Mastín, bring the case to this court.
Eor the purpose of the disposition of the case in this court, it is only necessary to consider the judgments in favor of Baldwin, and also in favor of Smith Cullom & Co., and Noble & Brother, and also Mastin’s executors. As Eobinson and Eose’s executors do not claim here, their *558judgments will not be further noticed, except to state, that did they claim, their application would be determined on the same basis that fixes the fate of the claims of Noble & Brother and Mastin’s executor, as these all stand upon a similar condition of facts.
The record shows that Baldwin obtained two judgments against Thomas H. Watts, in the circuit court of Montgomery county, in this State, on the 7th day of December, 1860 ; the one for $5,047 77, and the other for $6,057 33 ; that this latter judgment was paid off before the commencement of these procedings, except the sum of $311 05.
It also appears from- the record, that Smith Cullom & Co. recovered judgment against said Watts, in said circuit court, on the 8th day of December, 1860, for the sum of $5,182 59.
On all these judgments executions of fi. fa. were regularly issued in favor of the respective plaintiffs therein, on the 24th day of December, 1860, and were delivered to the sheriff of said county, on the same day of their issuance, and so far as is shown by the record, at the same time. These executions were made returnable to the next following term of said circuit court, which should have been held in May, 1861. But before this period of return arrived, the ordinance of secession of this State from the Union was passed on 11th day of January, 1861, and said term of said circuit court was never held, the rebellion then prevailing in this State having suspended the lawful courts of the lawful State government of the State of Alabama. This court remained thus suspended until the rebellion was overthrown, and this State was restored to the rule of the rightful and lawful State government of the State, in legal union with the government of the United States. This period of restoration, this court has intimated, took place on the 25th day of September, 1865 ; as on that day, has been fixed the time from which the statute of limitations ceased to be suspended by the late war in this State. — Holmes v. Coleman, January term, 1870. It will, therefore, be unnecessary to notice anything that may have been done in the rebel courts in these cases, from the 11th day qf January, 1§61, until the 25th day of Septem*559ber, 1865, if that date has been properly selected and fixed as the precise date of the restoration of the rightful and lawful government of the State of Alabama. But I do not conceive that that point is necessary to be decided in this case. It will therefore be no further mooted in this opinion.
It is also shown by the record, that Noble & Brother recovered two judgments in a tribunal styled in the record the county court of said county of Montgomery, in the State of Alabama, on the 12th day of March, 1861, against the said Thomas H. Watts; the one for $646 30, and the other for the sum of $1,229 SO, and that executions of fieri facias were issued, on each of these judgments, on the 25th day of March, 1861.
The record likewise shows that Peter B. Mastín, who was then living, but has since died, also recovered judgment in said county court aforesaid, on the 8th day of March, 1861, against said Watts and others, for the sum of $4,766 48, and that execution of fieri facias was issued thereon on the 25th day of March, 1861. After the death of said Mastín, said judgment was revived in the names of his executors, said Mary Mastín and said William A. Graham.
If these supposed judgments in favor of said Noble & Brother, and said Peter B. Mastín, are invalid, then this controversy, so far as they are concerned, is at an end. They have nothing to complain of, as they had no legal foundation to support their demand. Without a legal judgment, they had no right.
In the important case of Chisholm v. Coleman, 43 Ala. 204, the judgment of this court is based upon the assumption that a judge of one of the insurgent courts of the rebel government, ip the State of Alabama, during the late rebellion, was not a legal judge of the legal and rightful government of the State of Alabama, and as such he was not entitled to be paid his salary for services rendered during the rebellion, by the legal and rightful State government of this State. If the judges of the courts of the insurgent government in Alabama, during the late insurrection, were illegal, then, also, the courts pf the same government must *560be illegal, as there can not be a legal court without a legal judge. — 2 Bac. Abr. (Bouv.) 616, 618, 619. But the same disability which clung to the judge adhered to the court also. Both were illegal, and both vicious, because they constituted, in part, one of the departments of a “State government established in hostility to the constitution of the United States.” What is in hostility to the constitution, is unconstitutional, and, therefore, utterly void.— Texas v. White, 7 Wall. 700, 732; Dodge v. Woolsey, 18 How. 347; Mauran v. Insurance Co., 6 Wall. 1, 13, 14; Ex parte Milligan, 4 Wall. 2; Cooley’s Const. Lim. 3, 4; Marbury v. Madison, 1 Cr. 137, 180; 2 Dall. 308. But besides this, the legal and rightful sovereign power only can estab-. lish legal judicial tribunals. Usurpers and foreign sovereignties have no such power to do this. — Snell v. Fausatt, 1 W. C. C. 271; Glass v. The Betsey, 3 Dall. 6; Bibb & Falkner v. Chambers county, January term, 1870. If the contrary doctrine were true, then it seems to me, that the judgment in Chisholm v. Coleman, supra, can not be maintained. But it is the law. Again, the statute of limitations could not have been suspended during the existence of the late insurrectionary government in the State, except on the principle that there were no rightful and legal courts, in which suits might be commenced, or that the plaintiff was denied the use of such courts, as were found here. Otherwise, there was no sufficient legal reason for the suspension of the statute. Yet, this court has decided, that this statute was so suspended. — Holmes v. Coleman, supra. Upon any other principle, this judgment would seem to be an anomaly. — Hanger v. Abbott, 6 Wall. 532.
Following in the same train with these adjudications of our own courts, the supreme court of the United States has declared that “the Confederate States” government was not a legal government de facto — in effect, that it was, in point of law, an utter nullity; and that it could not give sanction to any rights. — Hickman v. Betts et al., December term, 1869, of United States supreme court; Shackelford v. Macon, Pasch. Ann. Const. U. S. p. 41. This was but carrying out the principles by the same court, announced in Luther v. Borden, and Scott v. Jones, decided before the *561rebellion. — 7 How. 1; 5 How. 343. The principle which runs through all these adjudications is the same. It is that the irregular State governments in Ehode Island and Michigan, and all the rebel governments were illegal, and the courts of the rightful and legal government have no power to remove this illegality. If done at all, it must be done by the rightful and legal legislative authority. Nothing would seem plainer than this, upon universally admitted principles. In the important and strongly contested case of Luther v. Borden, supra, the chief justice, who delivered the reasons for the judgment of the court, makes a very strong expression of opinion, to the effect that an illegal government set up within the United States, is a void government, and that all who act under its authority are trespassers or criminals. — 7 How. 38, 39. This was also the intimation of Woodbury, J., in the case of Scott v. Jones, supra. — 5 How. 376, 377, 378. The courts of the rightful and lawful government can only declare what the law is — what is legal and what is illegal. This is their sole duty. — Marshall, C. J., in Marbury v. Madison, 1 Cr. 137, 177. They can not mend that which is bad, nor make bad that which is good. This is the part of the lawmaking authority alone. And in this State only the legislative authority can make law. — Const. Ala. 1867, Art. III, §§ 1, 2; Art. IV., Art VI. When we look for the law that makes the governments of the organizations of the late rebellion lawful, or the courts or legislatures of these governments lawful, where will it be found? Not in any act of the Congress of the United States — not in the judgments of the highest court of the Union; and not in any law or any judgment of any lawful and rightful court of this State. But by all these high authorities the very converse has been declared. And this tribunal is bound, by oath, to carry out this declaration, unless it comes to the conclusion that the reconstruction acts of congress are unconstitutional and void; and that the principle decided in Texas v. White, is a solemn mistake. — Const. Ala. 1867, art. 15. But the opinion in the leading case of Chisholm v. Coleman, denies to the insurgent government in this State, after secession, the character of a government defacto. If *562this, along with the admitted illegality of these governments, is maintained, then the whole foundation, upon which the courts and all the departments of these irregular governments rests for legality, is swept away. It seems to me, that this is inevitable, from what has already been decided, both by this court, and in our national court of the highest authority.
The idea that any State governments may be set up within the limits of the State, which are hostile to the constitution of the United States, and which have been established for the purpose of expelling and overturning the authority of the United States, in the State where such irregular State governments are organized, and that their acts and departments may derive validity from the fact that such irregular State organizations are governments de facto, and as such entitled to a legal standing in this court without any recognition of the rightful government, either State or federal, is the fruit of a plant that had its root in the theories of the late rebellion. In my humble opinion, it has no sufficient warrant in our form of government or in the constitution of the Union. I, therefore, think that all this court can do in such a case is, sternly to deny it shelter here, as has been done in Chisholm v. Coleman, supra.
An attempt to overthrow the government of the United States in any portion of its territory by its own citizens, is rebellion and treason, whether it be put on foot by one man or by five millions of men. The numbers engaged in the effort make no difference.— United States v. Burr, 1 Burr Tr. 14; lb. 401, 405, 407; United States v. Fries, Whar. State Trials, 458; Ex parte Bollman, 4 Cr. 75; United States v. Greiner, 24 Law Rep. 92. And all the political machinery organized to support and carry on such an attempt is traitorous and illegal. And the courts of the country, whether State or federal, have no power to remove this illegality. If a contract is made to furnish arms or supplies of any kind, to aid in any manner to carry on such an attempt, it is illegal. — Patton, Gov., v. Gilmer et al., 42 Ala. 548; Ex parte Bibb & Falkner, January term, 1870; also, 11 Whea. 258; 2 Pet. 526; 12 How. 79. Then, why *563is not a government, or a court, which is but a part of such government, which has been organized for the same or a like purpose, and is equally necessary for that end, equally as bad as the contract ? If the government is put on the better footing, it seems to me, this is but a distinction in favor of the higher and more fatal act of treason. The principle is the same in each case. The thing, either way, is forbidden by law; and this it is that makes it illegal. What is illegal is void in court, and the court can not help it. Every department of the national and rightful and legal State government has denounced the whole insurrectionary State governments as illegal, without distinction of departments. This illegality must remain until it has been legally and properly removed, by competent legislative authority.
Has this been done by the rightful and legal government ? This is the next question to be considered.
No set of men in a State can confer upon themselves, or assume the power to assemble in convention, and make a constitution and form of government for the people of the State. This was tried in Michigan and in Rhode Island, and in both instances the attempt was pronounced to be void. There can be no legal State government set up in a State of the Union, without congressional recognition» either before the act, in giving the authority, or afterwards in ratification of the precedent act. The president of the United States has no authority to confer this power, or to give it validity by his ratification. Under the novel circumstances in which this State found itself at the end of the late rebellion, it required legislation to restore it to its proper and legal relations to the Union. This legislation involved a national interest, in which not only the people of this State were concerned, but the whole people of the Union. The question was one which more or less effected-the general welfare cf the nation. With such a question, congress alone had the authority to - deal. Under organizations claiming to be State governments, a portion of the people of the State had attempted to dissever the constitutional connection of the State with the Union, but had failed. During the continuance of this attempt, the terms *564of most of the officers of the State government, existing at the commencement of the rebellion, had expired, and there had been no re-elections under the rightful and legal government of the State to supply their places ; so that, at the end of the rebellion, there was an interregnum until the rightful and legal government of the State could be. restored or reconstructed. The difficulty thus arising eould only be obviated by law. Such law congress alone had the authority to .enact. The people of the United States constitute one nation, and 'they did not design to make their national government dependent on the States. Then, when the question for adjustment is national, it belongs to the congress of the Union to adjust it, and not to the States. — McCulloch v. Maryland, 4 Whea. 316, 431, 432, et ubeque; Crandall v. Nevada, 6 Wall. 35; 1 Kent, 236, 237; Gilman v. Philadelphia, 3 Wall. 713; Cooley v. Wardens Port, Phila.; Curtis, J., arguendo, 12 H. 299, 319.
There can be no doubt, that congress is.vested by the constitution with power to preserve the national existence •and its territorial integrity, and also to enforce the execution of its own enactments, and sustain the constitution of the Union, as the supreme law of the land, throughout the entire boundaries of the nation. Secession did not interfere with this power; for secession was a nullity. In the constitution there is an express grant for all these important purposes. — Const. U. S.,:art. 1, § 8, cl. 18; Paschall’s Ann. Const, page 138, and cases there cited; Ordn. No. 16 of Conv. 1867; Pamph. Acts 1868, page 167; 6 Wallace, 14. These are powers without limitations. Then, congress had authority to pass that system of laws commonly called the reconstruction acts; and these .acts are binding on this court. These acts denounce the government attempted to be set up. in this State under the provisional government which, followed the suppression of the rebellion, as illegal. .The congress refused to acknowledge this government as legal. It rejected its senators and representatives from the halls of legislation of the nation. It was repudiated, and..another government was ordered to be formed and established in its stead. This was done. The convention^ then, of the 12th September, 1865, was an assembly with*565out competent authority to make a constitution for the State, or to legislate for its people. So far, then, as its ordinances for the ratification of certain laws therein named, and certain acts and judgments, and other proceedings therein mentioned are involved, they are nullities; unless the same have been re-enacted or adopted by the present rightful and lawful government of this State.— Eev. Code, p. 53, Ord. No. 5; ib. p. 58, Ord. No. 26. The constitution framed by the convention of the 12th September, 1865, was never submitted to any vote of the people, and it was never adopted by them. It was never the constitution of the State. The people alone are the constitution-makers. — 6 Wheat. 389, 390.
So far, then, as the judgments in favor of Noble & Bro., and in favor of Peter B. Mastín, which has been revived in the names of his executors, are concerned, they are yet without valid legalization. The present State government, by its convention, and subsequently by its general assembly, has acted upon the question of tire validity of these judgments, and these authorities have only ratified them so far as to make the proceedings had in the rebel courts a basis for an application for a new trial. — Acts 1868, page 186; Ordn. No. 39; ib. p. 269; Act No. 48; Ex parte Norton & Shields, and Ex parte Bibb, January term, 1870.
The legislative authority having gone thus far, and no farther, this court, it seems to me, is not permitted to go beyond this limit; because the only law upon this subject ends here, and here the court must stop. The limit fixed by the general assembly is the limit of the court. — Cohens v. Virginia, 6 Wheaton, 260, 335. This can not be transcended without a disregard of law. If further remedy is needed, it is not in this tribunal, but in the legislative department of the rightful and legal government of the State, that it is to be found.
Courts of law, at common law, were authorized to protect their own officers, when acting bona fide in executing the process of the court, from the risk of doable liability of two or more different claimants. And this practice has been adopted in our own system, and sanctioned by our predecessors in this tribunal. — 2 Chit. Gen. Pr. 341, and *566cases there cited; Jones v. Hutchinson, June term, 1868, in manuscript. Then the interpleader suit in the circuit court was proper.
The question attempted to be raised on the judgments on the motions to amend the sheriff’s return on the fieri facias in the court below, can not come up in this case, except as a question of evidence. The judgments on thesé motions were not appealed from. They were, therefore, final, and they can not be collaterally impeached in this proceeding or upon objection to these judgments on the motions, as evidence. But if this could not be done, the circuit court, in which the motions in these cases were made, so far as the appellees were concerned, had jurisdiction to hear and decide the motions to amend. And it appears that the proofs are amply sufficient to sustain the judgments allowing the amendments. — Brandon v. Snow et al., 2 Stew. 255; Rev. Code, §§ -808, 2809; 3 Chit. Gen. Pr. 55, 56, marg.; McArthur v. Carrie, Adm’r, 32 Ala. 75.
Under this yiew of the proceedings in the circuit court, which have been brought into this court, the judgment of the court below is affirmed; and the costs will be divided. The said appellants, Noble & Brother, will pay one-half the costs of this cause in this court, and of the proceedings in the court below, necessary and proper to bring the cause into this court, and the said Mary Mastín and William A. Graham, said executors of the last will and testament of said Peter B. Mastín, deceased, will pay the other half of the costs of said cause, to be levied of the goods and chattels of said deceased, in their hands to be administered.
The chief-justice concurs in the result of the above opinion, but for the present he bases his concurrence upon the argument delivered by him in the case of Martin v. Hewitt, at the present term.