Chapter IV: Unity (4)

From such angry epithets and fierce denunciation, the reader will be prepared to find very little argument in Mr. Jefferson Davis' second letter. He denies that Mississippi received the money. But a bank, of which she was the sole stockholder, and whose directory was all appointed by her, received it. They received it also for her exclusive benefit, for she, _as a State_, was to derive large profits on the stock of the bank, which was hers exclusively, and was paid for entirely by the proceeds of these bonds. Mississippi then, as a State, through her agents appointed by her, received this money. All governments must act through human agency, and the agency in this case, which received the money, was appointed entirely by the State. But this is not all. The Bank, which was exclusively a State bank, and based entirely on the proceeds of these State bonds, with no other stockholders, was directed by the charter to loan this money, the proceeds of these bonds, only to 'the citizens of the State,' sec. 46, and so the loans were made. The State, then, through an agency appointed exclusively by itself, received this money, the proceeds of the State bonds, and the State, through this same agency, loaned this money to 'the citizens of the State,' who never repaid the loans. The State then received the money and loaned it out to its own citizens, who still hold it; and yet this money, obtained on the solemn pledge of the faith of the State, her citizens still hold, and the State repudiates her bonds on which the money was received, and Mr. Jefferson Davis sustains, indorses, and eulogizes this proceeding. Never was there a stronger case.

Mr. Jefferson Davis reiterates in this letter his arguments contained in his previous communication of the 25th May, 1849, so fully answered by the editors of the London _Times_ in their money article before quoted of the 13th July, 1849. He elaborates, particularly, the legal position, that the bonds were invalid, because he says not sanctioned by two successive Legislatures as required by the Constitution of Mississippi. This statement is erroneous, because the loan, in the precise form in which the bonds were issued, was sanctioned by two successive Legislatures in perfect conformity with the Constitution. This is shown, as will be proved hereafter, by reference to the laws passed by the State, and such was the decision on this very point by the highest judicial tribunal of Mississippi, in 1842 and 1853. But let us suppose that there was some technical legal informality as to the law, would that justify the repudiation of these bonds? The Legislature had passed laws in 1837 and 1838 authorizing the issue and sale of these bonds, those acts had been all signed and approved by the Governor of the State, the bonds had been signed by the Governor and Treasurer of the State, the broad seal of the State had been affixed to them by the Governor, they were placed in the hands of the authorities of the State for sale, they were sold by them, and the full amount paid over to the agency appointed by the State, and by that agency the money was loaned to the 'citizens of the State' and still retained by them. When the sale of these State bonds in August, 1838, together with all the facts and documents, were placed by the Governor before the Legislature in 1839, they ratified and highly approved the sale, as before quoted by the _Times_, and again still more decidedly in 1841. And yet the State, on the technical grounds stated by Mr. Davis, repudiated their bonds. It was unconstitutional to return the money which they had borrowed and used! Could anything be more absurd or dishonorable than this? The law says, if a man borrows money without certain legal authentications, he shall not be forced to repay; but if he receives and uses the money, and then interposes such technical pleas, he is justly deemed infamous. He has violated his honor. And is the honor of an individual more sacred than that of a state or nation? State and national debts rest upon faith, they repose upon honor, the obligation is sacred, and must be fulfilled. It can never he illegal or unconstitutional to _pay a debt_, where the money has been received by a state or a nation. And, where a State, acting through its supreme Executive and Legislature, has issued its bonds and affixed its seal, and they have passed into the hands of _bona fide_ holders, the obligation must be fulfilled. For a state or nation, having issued its bonds under its highest legislative and executive sanction, to say, that their own functionaries mistook some of the formalities of the law, and refuse payments, is a fraud upon the _bona fide_ holders, and can never be sustained before the tribunal of the world. But when, besides the Legislature and Executive of the State, its highest judicial tribunals have declared the bonds perfectly constitutional and valid, and to have been sold in accordance with the terms of the law, for such repudiation of such bonds it is difficult to find any language sufficiently strong to mark the infamy of such a transaction.

If indeed the formalities of the Constitution had not been complied with, and this were not a mere pretext, how easy would it have been to have passed a new act in conformity with the constitutional formalities, assuming the debt, or providing for the issue of new bonds to be delivered to the holders on the return of those alleged to be informal. But the truth is, this alleged unconstitutionality was a mere pretext for repudiating a just debt: it never occurred to the Legislatures which passed these laws in 1837 and 1838, or to the Governor, who signed them, and was rejected by the Legislature in 1839, and again, in the most solemn form, in 1841.

And now let me trace the history of this transaction chronologically. The original act chartering the bank, with the 5th section authorizing the loan, was passed by the Legislature January 21st, 1837, and again, in strict compliance with the provisions of the Constitution, reënacted in the same words on the 5th of February, 1838. Now the bonds issued are in strict conformity with this law, and an exact copy of the form of the bonds prescribed by the law. If then, the supplemental act of the 15th February, 1838, was unconstitutional, null, and void, as contended by the repudiators, then the whole original act remained in full force, and the bonds were valid under that law, and such was the unanimous decision of the High Court of Errors and Appeals of Mississippi, as will be shown hereafter. It was contended before the court (and by Mr. Davis in his last letter) that, under the original law, certain acts were to be performed before the bonds could issue. But here again, it is plain on the face of the law, and so the High Court of Errors and Appeals of Mississippi unanimously decided, that these acts were not required to be performed as _conditions precedent_ to the issue of the bonds, and that the issue and sale of the bonds were perfectly valid before these acts had been performed. The bonds then are in exact conformity with a law, which was passed by two successive Legislatures, precisely as provided by the Constitution.

In 1836 there was a great pecuniary embarrassment in Mississippi, attributed by many to what was called the _specie circular_, and soon followed a suspension of the banks. Under these circumstances there was an almost universal demand in Mississippi for relief measures. As a consequence, the attention of the Legislature was absorbed almost exclusively in the consideration of remedies for the existing embarrassments. The result was the enactment, on the 21st January, 1837, of the law, creating the Union Bank of Mississippi. This bank was based upon loans to be obtained upon bonds of the State, the proceeds of which, when sold, were to constitute the capital of the bank, which money, by the terms of the charter, was to be loaned to the '_citizens of the State_,' to relieve the existing embarrassments.

The fifth section of the act was the only one in which any authority was given for a loan by the State, and any power to pledge its faith. That section, entire, was as follows:

'That, in order to facilitate the said Union Bank for the said
loan of fifteen millions five hundred thousand dollars, the
faith of this State be, and is hereby pledged, both for the
security of the capital and interest, and that 7,500 bonds of
$1,000 each, to wit: 1,875 payable in twelve years; 1,875 in
fifteen years; 1,875 in eighteen years; and 1,875 in twenty
years, and bearing interest at the rate of five per cent. per
annum, shall be signed by the Governor of the State to the
order of the Mississippi Bank, countersigned by the State
Treasurer, and under the seal of the State; said bonds to be in
the following words, viz.:

'$2,000. Know all men by these presents, that the State of
Mississippi _acknowledges to be indebted_ to the Mississippi
Union Bank in the sum of two thousand dollars, which sum the
said State of Mississippi _promises to pay_ in current money of
the United States to the order of the President, Directors, and
Company in the ---- year ----with interest at the rate of five
per cent. per annum, payable half yearly, at the place named in
the indorsement hereto, viz.: ---- on the ---- of every year
until the payment of the said principal sum: in testimony
whereof the Governor of the State of Mississippi has signed,
and the Treasurer of the State has countersigned these
presents, and caused the seal of the State to be affixed
thereto, at Jackson, this ---- in the ---- year of our Lord.

'_Governor._

'_Treasurer._'

The whole act, of which this section was a part, was passed by the Legislature and approved by the Governor in 1837, and the entire section as to the loan as required by the provision of the Constitution of the State, was referred to the action of the next succeeding Legislature. That succeeding Legislature was chosen in November, 1837, and assembled, at its regular session, in January, 1838. After full discussion in both houses, this act of 1837 was passed by large majorities in both branches of the Legislature, and approved by the new Governor, A. G. McNutt, on the 5th of February, 1838. The act of 1837, including the 5th section, before quoted, was thus reënacted by the succeeding Legislature, without any change whatever. There was then a full, complete, and undisputed compliance with the requirements of the Constitution, and, under this act, thus sanctioned by two successive Legislatures, it is conceded that the faith of the State was pledged, and that the bonds might be issued and sold. But it is contended by Mr. Jefferson Davis in his first, as well as his second letter, before quoted, that the bonds are invalid, because of the supplemental act of the 15th of February, 1838. Now, it will be observed, that no change whatever was made by this supplemental act, in this 5th section of the original act, before quoted, by which alone the faith of the State was pledged for the payment of these bonds, and which section alone, as required by the Constitution, had been referred to the action of the succeeding Legislature. No change whatever was made by the supplemental act in that section of the original act, the bonds were issued and sold in precise conformity with its provisions, and, indeed, these bonds, thus actually issued and sold, are a precise and literal copy of the form of the bonds as given in the original act, as before quoted. The supplemental act changed only some of the '_details_' of the charter of the Bank, but made no alteration whatever in the 5th section. This supplemental act, which is now denounced by Jefferson Davis as unconstitutional, was passed, after the fullest investigation of this question, as to the power of the Legislature, with favorable reports as to the constitutional power by the joint Committee of both Houses. The Committee reported to the Senate, that, by a 'supplemental bill' 'it is competent for this Legislature to alter and amend the details of the bill, incorporating the subscribers to the Mississippi Union Bank, passed at the last session of the Legislature of this State.' (Senate Journal, 103.)

The report of the Committee to the House was as follows: 'The said Committee are of the opinion, that it is within the province of the Legislature to amend or change the details of the said Mississippi Union Bank Charter,' &c. (House Journal, p. 117.) Such was the opinion of the joint Committee of both Houses of the Legislature, which reported this supplemental act, which act was passed by the vote of 22 to 3 in the Senate (Journal, 320), and 55 to 22 in the House. (Journal, 329-30.) It would appear, then, that in the opinion of an overwhelming majority of both branches of the Legislature of Mississippi, the supplemental act was constitutional; and the act was approved by A. G. McNutt, the Governor of the State, and thus became a law on the 15th of February, 1838. Indeed, the idea that a subsequent Legislature could change none of the details of a bank charter, because there was embodied in the act a separate and distinct section authorizing a loan of money by the State, seemed to me never to rise to the dignity of a question. Such, we have seen, was the view of the Legislatures of 1838, 1839, and 1841, and such was the unanimous decision, hereafter quoted, of the Chancellor and Circuit Judge of Mississippi, and of the supreme judicial tribunal, the High Court of Errors and Appeals of the State, in two decisions, on this very point, and in favor of the constitutionality of this law. One of these decisions was made in January, 1842, and the other in April, 1853. These decisions were conclusive against the State, and binding upon the Legislature, the Governor, and the people, for the following reasons. The Constitution of the State of Mississippi contains the following clause:

'ARTICLE II. _Distribution of Powers._

'Sec. 1. The powers of the Government of the State of
Mississippi shall be divided into three distinct departments,
and each of them confided to a separate body of magistracy; to
wit, those which are legislative to one, those which are
judicial to another, and those which are executive to another.

'Sec. 2. No person or collection of persons, being of one of
these departments, shall exercise any power properly belonging
to either of the others, except in the instances hereinafter
expressly directed or permitted.'

It is not pretended that any exception was made for this case. The contrary has always been held by the courts of Mississippi. Indeed, as late as October term, 1858, this very question was decided by the High Court of Errors and Appeals of Mississippi, when it was ruled by the court that 'the Legislature may not, therefore, exercise powers which in their nature are judicial.' (Isom. _v._ Missis. R. R. Co., 7 George 314.)

In the 9th section of the 7th article of the Constitution of Mississippi is found the provision on which Mr. Jefferson Davis relies requiring the assent of two successive Legislatures to pledge the faith of the State. Immediately succeeding this provision is the following: 'The Legislature _shall direct_ by law in what courts suits may be brought against the State.'

These two consecutive sections of the _same article_ of the Constitution, being in _pari materia_, are to be construed together. Indeed, it is a well known historical fact, that this 9th section, as regards the pledge of the faith of the State, which is now perverted to a wholly different purpose, was intended to give greater solemnity and a higher credit to the bonds of the State, as was likewise the provision in the same Constitution of 1832, sanctioning by name the Planters' Bank bonds of the State (now unpaid), in consequence of which, they were sold at a premium of thirteen and a half per cent. In pursuance of the provision of the Constitution before quoted, the Legislature of Mississippi, in 1833, passed an act, designating the Court of Chancery as the one in which suits might be brought against the State, with the right of appeal by either party to the High Court of Errors and Appeals. That act was passed in 1833, in pursuance of this _mandatory_ provision of the Constitution before quoted. That act provided, that, if the decree of the court should be against the State, the Governor _shall issue_ his mandate to the Auditor to draw on the Treasurer to pay the decree, but 'no execution whatever shall ever issue on any decree in chancery against the State of Mississippi, whereby the State may be dispossessed of lands, tenements, goods and chattels.' (Howard's Dig. 523, 524.)

Here, then, are the two consecutive provisions of the Constitution in _pari materia_, the one designating the mode by which the bonds of the State might be issued, and the other the judicial tribunals in which all disputes as to such bonds might be _definitively_ settled, and payment made, if the decree were against the State. That Constitution vested the _whole judicial power of the State_ in the courts, it vested nothing but 'legislative power' in the Legislature, and it prohibited the Legislature and Executive from exercising judicial power; it adopted the great fundamental principle of constitutional government, separating the executive, legislative, and judicial power. Indeed, it is the great doctrine of American law, that the concentration of any of these two powers, in any one body or functionary, is dangerous to liberty, and that the _consolidation_ of all of these powers creates a despotism. The interpretation of a law, and particularly of a constitution, which is made the 'supreme law,' the _lex legum_, has uniformly been regarded as exclusively a judicial, and not an executive or legislative function. In this case, however, it has been made clear by an express provision of the Constitution separating these functions, and designating, under its mandate, the _courts_ in which _suits_ shall be brought against the State, and the form of the decree to be rendered, and requiring payment to be at once made. A suit is a judicial act, and so is the decree of a court. Well, then, the highest judicial tribunals of Mississippi have twice decided this question; they have declared this supplemental act constitutional, these bonds valid, and the sale of them to be in conformity with the law; and, in a suit on one of these very bonds, after the fullest argument, the court entered a decree of payment, overruling every point made by Jefferson Davis; and yet the State still repudiates, as well after the first decision in 1842, as the second in 1853. It is difficult to imagine a more palpable infraction of the Constitution, or a clearer violation of every principle of justice than this.

The State prescribes certain forms under which her bonds may issue; she adds to this, in the very _next section_, a provision _commanding_ the Legislature to designate the judicial tribunals in which suit may be brought on such bonds against the State; those tribunals are designated by the Legislature, namely, the Court of Chancery, with appeal to the High Court of Errors and Appeals of the State; both those tribunals (including the Chancellor) have unanimously decided against the State, and a decree is entered for payment of the bonds. And yet the State persists in repudiation, and Jefferson Davis defends her course. When the High Court of Errors and Appeals of Mississippi first decided this question, it was composed of Chief Justice Sharkey, and Justices Turner and Trotter (one of the framers of the Constitution). When, again, in 1851, suit was brought against the State on one of these repudiated Union Bank bonds, and a decree for its payment rendered by the Chancellor, that decree, on full argument on appeal, was unanimously confirmed by the highest judicial tribunal of the State, composed entirely of different judges, namely, Chief Justice Smith, and Justices Yerger and Fisher. Here, then, are eight judges, all chosen by the people of Mississippi, concurring in 1842, as well as in 1853, as to the validity of these bonds; and yet Jefferson Davis justifies their repudiation. The judges of Mississippi all take an oath to support the Constitution, and it is made their duty to interpret it, and especially this very clause: the Legislature is confined to law making, and forbidden to exercise any judicial power; the expounding this supplemental law, and the provisions under which it was enacted, is exclusively a judicial power, and yet the Legislature _usurps_ this power, repudiates the bonds of the State, and the acts of three preceding Legislatures, and the decision of the highest tribunals of the State: Jefferson Davis sustains this repudiation, and the British public are asked to take new Confederate bonds, issued by the same Jefferson Davis, and thus to sanction, and encourage, and offer a premium for repudiation. These so-called Confederate bonds are issued in open violation of the Constitution of the United States; they are absolute nullities, they are tainted with treason, they never can or will be paid, and yet they are to be thrust on the British public under the sanction of the same great repudiator, Jefferson Davis, who applauds the non-payment of the Mississippi bonds, and thus condemns hundreds of innocent holders, including widows and orphans, to want and misery. Talk about _faith_, about _honor_, about _justice_, and the _sanctity of contracts_. Why, if such flagrant outrages, such atrocious crimes, can be sustained by the great public of any nation, small indeed must be the value of their bonds, which rests exclusively on good faith.

Suppose some astute lawyer could find some informality in the law authorizing the issue and sale of the bonds representing the British consols; would any member of either House propose in Parliament to repudiate such bonds, and would not such a motion cause his immediate expulsion? Yet, this is what the Legislature of Mississippi has done, what Jefferson Davis approves and applauds, and what, _he says_, the 'English Government' _has done_.

The London _Times_ has heretofore quoted the proceedings of the Legislature of Mississippi in 1839, approving the sale of these bonds and eulogizing the transaction. It has also referred to the Message of Governor McNutt, of 1841, nearly three years after the sale of the bonds, first recommending their repudiation, and to the resolutions of the Legislature of Mississippi of that date, affirming the legality of these bonds and the duty of the State to pay them. As these resolutions are of great importance, and ought to have closed the whole controversy, I will state, what is shown by the Journals of the Senate and the House, that they passed both Houses, in great part _unanimously_, and for the remainder, by large majorities. (Sen. Jour. p. 312; House Jour. pp. 416-417, 249, 324-329.)

The objections made by Governor McNutt in 1841, were as follows:

'1st. The Bank of the United States is prohibited by its
charter from purchasing such stock, either directly or
indirectly.

'2d. It was fraudulent on the part of the bank, inasmuch as the
contract was made in the name of an individual, when, in fact,
it was for the benefit of the bank, and payment was made with
its funds.

'3d. The sale was illegal, inasmuch as the bonds were sold on a
credit.

'4th. Interest to the amount of about $170,000 having accrued
on those bonds before the purchase money was stipulated to be
all paid, the bonds were, in fact, sold at less than their par
value, in direct violation of the charter of the bank.' (House
Journal, p. 25).

It will here be remarked, that the great objection now urged by Jefferson Davis against these bonds, namely, that the act under which they were alleged to have been issued was unconstitutional, is _not enumerated_ by Governor McNutt. Surely if such an objection existed to the payment of the bonds, it must have found a place in this celebrated message. Is not this conclusive proof that this constitutional objection was a mere afterthought and pretext of Jefferson Davis and his associate repudiators?

Let us examine the Governor's objections. As to the 1st and 2d--the bank did not make the purchase; the contract was made by an individual, although the performance was guaranteed by the bank. As this is a mere technical objection, surely the Bank guarantee, even if void, could not affect the contract itself. 2d. The purchase, even if made by the bank, was not of _stock_, but a _loan_ made upon _bonds_. 3d. The right of the bank to make the purchase is immaterial, if the money was paid, as in this case, the bonds received, payable to bearer, and passed for value, into the hands of _bona fide_ holders. What an objection to the refunding the money--that, although it was received, the purchaser of the bonds had no right to buy them, and therefore the _bona fide_ holders should lose the money. It might have been in violation of its charter for the bank to purchase the bonds, but it was '_fraudulent_,' when the money was received by the State, to retain it, on the allegation, that the bank could not legally make the purchase, especially when the bonds, in the mean time, had passed into the hands of _bona fide_ holders. As to the 3d objection--as the money was paid before the objection was made, and the Union Bank authorized to draw _at once_ for the amount, at a point beyond the limits of the State, which it did do, and realized a large premium on the exchange, and profit on the transaction, the objection is as unfounded in law as it is in morals or good faith; especially as the bonds were payable to bearer, upon their face, in exact conformity to the law, and had passed, for value, into the hands of _bona fide_ holders. Besides, there was no such restriction in the charter. The only restriction in the supplement was, that they should not be sold _below par_. Suppose the bonds for five millions of dollars had been sold for five millions and a half, payable in sixty days, and the money paid at the time, it is equally absurd and fraudulent to contend, that for such a reason, the whole money could be retained, and bonds repudiated. As to the 4th objection, the original 5th section which passed two successive Legislatures, did not require that the bonds should not be sold for 'less than their par value.' If, then, as contended by Jefferson Davis, the supplemental act containing this provision, was unconstitutional, null and void, then no such restriction existed, and the sale was valid under the original act. But the truth is, the bonds were not sold _below par_, but _above par_, as shown by the High Court of Errors and Appeals of Mississippi, in the decision hereafter quoted by me. Indeed, all these four objections of the Governor, as well as those of Jefferson Davis, are shown in that decision to be as unfounded in fact, as they were in law or morals.

But suppose the bonds were sold below par, that is, that the State had lost $170,000, or less than four per cent., on bonds for five millions of dollars. Was that a just or valid ground for repudiating the whole, principal and interest? The plea of _usury_ is always disgraceful, even if true, especially where the security was negotiable to bearer and had passed, for full value, into the hands of _bona fide_ holders. But if such a plea is disgraceful to individuals, what shall be said when it is made on behalf of a State? And what shall be thought of those who make such an objection? What of a Governor, or of a United States Senator, who urges such objections on behalf of a State? Do we not feel as if the State were some miserable culprit on trial, and some pettifogging lawyer was endeavoring to screen him from punishment, by picking a flaw in the indictment. Yet such are the pleas on behalf of a State, urged by Governor McNutt and Senator Jefferson Davis. On reference to the letter before referred to, of Jefferson Davis, it will be found that he does not confine himself to the constitutional objections. In his first letter, before quoted, of 25th May, 1849, Mr. Jefferson Davis says, 'Those bonds were purchased by a bank then tottering to its fall--purchased in violation of the charter of the bank, or fraudulently, by concealing the transaction under the name of an individual, as may best suit those concerned, purchased in violation of the terms of the law under which the bonds were issued, and in disregard of the Constitution of Mississippi, of which the law was an infraction.' These positions are deliberately repeated by Jefferson Davis, in his second letter, before referred to, of the 29th August, 1849. That is, the State should pay _none_ of the money received, because the purchaser, as alleged, had no right to buy the bonds--and because the sale was, as erroneously stated, an infraction of the law, that is _usurious_, or a sale below par. He insists the money was not received by the State, because, he says, 'Mississippi had no bank, and could not have a bank of issue, because forbidden by the tenth section of the first article of the United States Constitution--'no State shall emit bills of credit.'' Surely Mr. Davis must have known, that in the case of the Bank of Kentucky, a State bank of issue owned exclusively by the State, it was decided by the Supreme Court of the United States, that such a bank was constitutional, and no politician of the secession school can object to that decision. (2 Peters 257.) But however this might be, what kind of a plea is this? Why, if, as alleged by Mr. Davis, Mississippi had violated the Federal Constitution, by establishing a bank of circulation, that therefore the _bonds_ of the State should be repudiated. Is it not incredible that a Senator should assume such a position on behalf of his State? But, if this be sound, it clearly follows, that, inasmuch as the Confederate bonds are issued in plain violation of the Constitution of the United States, those bonds should be repudiated; so also if they were sold below par, or if there be any other technical objection. Nor will it avail that the bonds may have passed into the hands of _bona fide_ holders, for, Mr. Jefferson Davis says, in his letter of the 29th August, 1849, 'If the bonds have passed into the hands of innocent holders, the fact does not vary the legal question, as the purchaser could not acquire more than the seller had to dispose of.' And again, he says, referring to the alleged inability of the first purchaser to buy the bonds, 'The claim of foreign holders is as good, but no better, than that of the first purchaser.' It is difficult to say which is most astounding, the law or the morals of this position. At all events, 'the foreign holders' of Confederate bonds are informed by Jefferson Davis, that this is the law. Indeed it is a singular coincidence, that one of the objections made to the payment of the Union Bank bonds by the Governor, was, as he alleged, 'the monstrous assumption of power on the part of the bank, in seeking to monopolize the _cotton crop_ of the State, and becoming a _factor_ and _shipper_ of our great staple.' (Senate Journals, 29.) Why, this is what is being attempted by these Confederate cotton bonds, although the State-rights strict constructionists of slavedom would in vain look for any clause in their so-called constitution, authorizing any such transactions in cotton. And here, let me say, that the objection of a Senator from Mississippi to the payment of her bonds, that, in issuing them, her Governor and Legislature had violated _their own Constitution_, proposes to cure one fraud, by committing another far more stupendous. The bonds were issued by the highest legislative and executive functionaries of the State, the broad seal of the State attached, the bonds sold, and the money received. In such a case, there is a legal, as well as a moral estoppel, forbidding such a plea, for, by the English, as well as by the American doctrine, an estoppel excludes the truth, whenever such proof would enable the party, who obtained money on false pretences, to commit a fraud on third persons, by disproving his own averment. This is not a mere technical rule, but one which is based upon experience, and sustained by the most exalted morality.

I have given the several objections made by Governor McNutt and Senator Davis to the payment of these bonds, with one exception. This will be found in the following extract from the executive message of Governor McNutt, (p. 502): 'The bank, I have been informed, has hypothecated these bonds, and borrowed money upon them of the Baron Rothschild; the blood of Judas and Shylock flows in his veins, and he unites the qualities of both his countrymen. He has mortgages on the silver mines of Mexico and the quicksilver mines of Spain. He has advanced money to the Sublime Porte, and taken as security a mortgage upon the holy city of Jerusalem, and the sepulchre of our Saviour. It is for the people to say, whether he shall have a mortgage upon our cotton fields and make serfs of our children.' I trust the baron will have the good sense to smile at such folly, and realize how universally, at least throughout the North, the malice and dishonesty of these suggestions was condemned and repudiated. We have no such prejudices, worthy only of the dark ages, against 'God's chosen people,' 'the descendants of the patriarchs and prophets,' and the 'countrywomen of the mother of our Lord.'

But this whole question has been twice unanimously decided by the highest judicial tribunal of Mississippi against the State, and every point made by Governor McNutt and Jefferson Davis overruled by the court. One of these decisions was in January term, 1842, more than seven years before the date of Jefferson Davis's letters, and the other was at April term, 1853, nearly four years subsequently.

The first decision, at January term, 1842, is in the case of Campbell et al. _v._ Mississippi Union Bank (6 Howard 625 to 683). In this case it was pleaded 'that the charter of the Mississippi Union Bank was not enacted and passed by the Legislature in compliance with the provisions of the Constitution of the State, in this, that the supplemental act of 15th February, 1838, the same being a law to raise a loan of money on the credit of the State, was not published and submitted to the succeeding Legislature, according to the provisions of the Constitution in 9th section, 7th article.' Here the direct constitutional question was presented, requiring the decision of the Court. The case was most elaborately argued on both sides. The able and upright circuit judge, Hon. B. Harris, had decided that the supplemental act was constitutional, and the bonds valid, and the High Court of Errors and Appeals of Mississippi, after full argument on both sides, unanimously affirmed that decision. In delivering the opinion of this highest judicial tribunal of the State, and the one designated by the Legislature in 1833, under the _mandatory_ clause of the Constitution, Chief Justice Sharkey said:

'The second plea is, in substance, that the act supplemental to
the charter of the Union Bank, was not agreed to by a majority
of each House of the Legislature, and entered on the journals
with the yeas and nays, and referred to the next succeeding
Legislature, after publication in the newspapers, according to
the provisions of the 9th section of the 7th article of the
Constitution; but the said supplemental act made material
alterations in the original act, and was only passed by one
Legislature, and that no loan of money can be made on the faith
of the State without the assent of two Legislatures, given in
the manner prescribed by the Constitution.'--'I shall then
proceed to notice the constitutional provision, and to inquire,
by an application of it to the bank charter, whether the
position can be sustained. The 9th section of the 7th article
(of the Constitution) is in these words: 'No law shall ever be
passed to raise a loan of money on the credit of the State, for
the payment or redemption of any loan or debt, unless such law
be proposed in the Senate or House of Representatives, and be
agreed to by a majority of the members of each House, and
entered on their journals, with the yeas and nays taken
thereon, and be referred to the next succeeding Legislature,
and published for three months previous to the next regular
election, in three newspapers of the State, and unless a
majority of each branch of the Legislature, so elected after
such publication, shall agree to pass such law, and in such
case, the yeas and nays shall be taken, and entered on the
journals of each House.'

'The 5th section of the original act provides--'That in order
to facilitate the said Union Bank for the said loan of fifteen
million five hundred thousand dollars, the faith of this State
be and is hereby pledged, both for the security of the capital
and interest,' &c. It appears that the original charter in
which this provision is contained, was passed in accordance
with the provision in the Constitution. The supplemental act
makes no alteration whatever in regard to this section. It
changes in some respects the mere details of the original
charter, in the mode of carrying the corporation into
successful operation, and authorizes the Governor to subscribe
for the stock on the part of the State. The object of the
pledge is not changed; on the contrary, the supplemental act
was passed in aid of the original design. In applying the
constitutional test to the 5th section, I am not able to
perceive any reason which to me seems sufficient to justify the
conclusion that it is unconstitutional.'

'The plea presents no bar to the action.'

Justices Turner and Trotter concurred.

Mr. Howard, the distinguished State reporter, gives, in the heading of the case, the following as the decision of the court. 'The act supplemental to the charter of the Union Bank, being in aid of the charter, and changing the same only in some of the mere details, is a constitutional act.'

Surely this decision should have settled the question. But it did not. The Governor, A. G. McNutt, who had signed the laws authorizing these bonds, and the bonds themselves, anticipating the decision of the court (as he indicates in his message) in favor of 'the holders of certain bonds heretofore issued to the Planters' and Union Bank,' recommends the Legislature, in his message of January, 1842, to create a 'revenue court,' the judge of which shall be appointed 'by the Executive or Legislature,' to which such cases should be transferred. (Sen. Jour. p. 22.) Thus the case, on the bonds, was to be taken from the high tribunal (where it was then pending) created by the Constitution, and chosen by the people, and transferred to a revenue judge to be appointed by the repudiating Governor and Legislature of 1842, of course a mere executive parasite, or legislative minion, placed on the bench to repudiate the bonds. Fortunately, such an appointment was forbidden expressly by the Constitution, and would have been disregarded by the court; so this attempted usurpation failed.

The Governor says in that message:

'It never was intended by the framers of the Constitution, that
every public creditor should be permitted to harass the State
at pleasure by vexatious suits. Neither the judgment of a court
nor the decree of the Chancellor _can be obligatory on the
Legislature_,' &c. (P. 17.)

In conformity with this recommendation of the Governor, the Legislature passed a series of resolutions declaring that 'the Legislature is the exclusive judge of the objects for which money shall be raised and appropriated by its authority,' &c.; that the Legislature has no right to 'levy or appropriate money for the purpose of executing the object of a law, by them deemed repugnant to, or unauthorized by the Constitution;' that the 'Supplemental (Union Bank) Bill is unconstitutional;' that 'the bonds delivered by said bank, and by it sold to Nicholas Biddle on the 18th August, 1838, are not binding upon the State,' &c. (Acts of 1842, ch. 127.) But, unfortunately for these positions, the Constitution of the State had deprived the Legislature of all 'judicial power;' it had vested this power exclusively in 'the courts;' it had, in the very case of all bonds of the State, required and commanded the Legislature to designate the _courts_ in which such cases should be decided; it had, by the act of 1833, passed in obedience to the imperative mandate of the Constitution, referred all such cases to the decision of the Court of Chancery, with appeal to the High Court of Errors and Appeals; it had made their decision conclusive; it had already appropriated the money, to pay _all such decrees_, and made it the _duty_ of the Governor to command the Auditor to draw his warrant on the Treasurer for payment: this was the constitution of the law when these bonds were issued and sold in 1838--such was the _contract_ of the State, in regard to which the Federal Constitution declares, 'no State shall pass any law impairing the obligation of contracts'--which clause has been uniformly held by all the Federal as well as State Courts, to apply to contracts of a State--and yet, in flagrant defiance of the highest duties and the most sacred obligations, the Legislature passed these resolutions, to nullify the anticipated decisions of the court. We have seen, however, that this executive and legislative usurpation was ineffectual. The court stood firm, not a single judge wavered, and, by a unanimous decree, reversed the legislative and executive repudiation--vindicated the majesty of the law and the Constitution--upheld the sacred cause of truth and justice--resisted the popular frenzy, and defied the unprincipled demagogues by whom the people of the State had been deceived and deluded. It was a noble spectacle, when those three upright and fearless Judges, Sharkey, Turner, and Trotter, entered the temple of justice, and declared to the people, by whose ballots they were chosen, that the State was bound to pay these bonds, and decreed accordingly. The same sublime scene was reënacted by a similar decree, in a suit against the State, on one of these bonds, by the same court, in 1853, then composed of different judges--Smith, Yerger, and Fisher. And not one judge or chancellor of the State ever wavered. Amid all this heaven-daring iniquity, thank God! the judicial ermine was unstained. Whilst constrained to denounce the repudiating Legislature, Governor, and _Senator_ of Mississippi, let me point to another green spot amid the moral waste and desolation of that dreadful period.

With scarcely an exception, the _Bar of Mississippi_ was true to the cause of honor, law, and justice. They knew the objections of McNutt and Davis were wretched pretexts, and they vindicated the reputation of that noble profession, which, in all ages, has been the champion of constitutional liberty. They were men of the same stamp as their illustrious English ancestry, Hampden, Sidney, and Russell, whose names cover the map of my country, and whose deeds have exalted the character of man; and although the blood of our anti-repudiating heroes did not flow like that of the British martyrs, as a sacrificial offering on the altar of freedom, they sacrificed ease, and affluence, and ambition, and political preferment, and endured obloquy and reproach. I rejoice in the recollection, that, during this contest they should have selected a sentence from my address against repudiation, and placed it on their banners, and at the head of their presses, in these words: 'The honor of the nation and of every State is the birthright of every American--it is the stainless and priceless jewel of popular sovereignty--it has been preserved unsullied, in all times that are past, through every sacrifice of blood and treasure, and it must be maintained.' Ay! and it will yet be maintained. The time will come, when repudiation will be repudiated by Mississippi--when her wretched secession leaders, the true authors of her disgrace and ruin, will be discarded--when her insolent slaveholding oligarchy will be overthrown, when the people will break the chains of their imperious masters, and labor, without regard to color, will be emancipated. _Secession_, _repudiation_, and _slavery_ are the same in principle and had the same leaders. Jefferson Davis carried the repudiation banner in 1849, as he now does that of secession and slavery. Secession is a repudiation of law, of constitution, of country, of the flag of our forefathers, and of the Union purchased by their blood. Driven at home within a circle of fire, which narrows every day, it is crouching before foreign rulers, and imploring their aid to accomplish the ruin of our country. It appeals to their ambition, their avarice, their fears, their hatred of free institutions and of constitutional government. It summons them to these English shores, it unsheathes the imperial sceptre in the House of Commons, denounces the Ministry of England, and dictates the vote of Parliament on the most momentous question in the history of the world. Why, when these sentiments were uttered, I almost expected to see the shades of Burke and Fox, and Pitt and Chatham, and Peel and Wellington, rise in the midst and denounce the degenerate bearer of such a message. What! the British Commons become the supple tools, the obsequious minions, the obedient parasites, to do the bidding of a foreign master, and tremble when his envoy should stamp his foot and wave the imperial banner in the halls of Parliament. From whom was this message, and to whom? Was it to the England of Trafalgar and the Nile? Was it to the descendants of the men who conquered at Agincourt and Cressy, and changed for ages at Waterloo the destiny of the world? Why, Nelson would speak from his monument, and the Iron Duke from his equestrian statue, and forbid the degradation of their country. But there stood the Confederate messenger, delivering the mandate of a foreign power to the House of Commons, describing England as a crawling reptile, exalting the Government he professed to represent, as controlling the Continent, and fearing lest the Imperial Eagle alone should swoop down upon his prey. And such language, such sentiments! Was I in Billingsgate, that ancient and illustrious institution, so near the House of Parliament? Why, the whole code of morals and of international law was repudiated in a sentence, and our demagogues distanced in the race. Did the envoy echo the voice of his master, when he announced that the American Union must be dissolved by foreign intervention, because, if reunited, it would be too strong, and bully the world--therefore France and England combined must strike us when we were supposed to be weak and divided. It is not the author of such atrocious and dastard sentiments that would lead the banner of France or of England anywhere except to humiliation and disgrace. 'Non talis auxilii, nec defensoribus ipsis.' No, when England seeks leaders, it will not be the sycophants of power, those who worship alternately democracy and autocracy, who slaver over despotism one day with their venom, and the next with their still more loathsome adulation.

But there was a change. The Ministry, and one of an order supposed to be our most deadly foes, spoke. There were some opinions as to the results in which no American could concur--there was deep devotion to England--but there was also the voice of reason, of justice, of international law: it was not so cosmopolitan as I expected, but the argument of felon force and robber violence was discarded. The scholar, the statesman, the gentleman, the philanthropist addressed the English Commons. Yes, and the nobility of nature also spoke, one who could rise above the reputed prejudices of his order, and do justice to a kindred race of simple republicans, though they may know neither diadems nor coronets. Such examples exalt and dignify the character of man. They teach us republicans a useful lesson--that those who differ from us as to some of the forms of government, may most sincerely support that system which in their judgment will best promote the welfare and happiness of the people. That indeed is the only question. Let England and America work out the problem in peaceful and friendly rivalry. Time and experience will decide the question. If, when slavery is extinguished in our Union, and the only aggressive element of our system is extirpated, we should run a grand and peaceful career of honor and glory and prosperity, we will want no other argument than the results. The blasphemous doctrine of the divine rights of kings was discarded by England in the revolution of 1688. The British throne reposes now on the alleged basis of the welfare and happiness of the people. What form of government will best promote that end--this is the only question. I believe it is ours--but only with slavery extinguished, and universal education--schools--_schools_--SCHOOLS--common schools--_high schools_ for all. Education the criterion of the right of suffrage, not property. I do not believe in a government of ignorance, whether by the many or the few. With the constant and terrible opposing element of slavery, we have certainly achieved stupendous results in three fourths of a century, and to say that our system has failed, because slavery now makes war upon it, is amazing folly. Why predict, that, when reunited, and with slavery extinguished, we would _bully the world_. Who were our bullies? Who struck down Charles Sumner, the Senator of Massachusetts, the eminent scholar and orator, on the floor of the Senate, for denouncing the horrors of slavery? A South Carolinian, whilst all slavedom approved the deed. Who endeavored to force slavery on Kansas by murder and rapine, and the forgery of a constitution? Who repealed the Missouri Compromise, in order to force slavery upon all the Territories of the United States? Who are endeavoring now to dissolve the Union, and spread slavery over all this wide domain? There is a plain answer to all these questions. It is the lords of the whip and the chain and the branding iron, who are our bullies--who insist upon forced labor, and repudiate all compensation to the toiling millions of slaves--who repudiate, among slaves, the marital and parental relation, and class them by law as chattels--who forbid emancipation--who make it a crime to teach slaves to read or write--ay, even the Bible--who keep open the interstate slave-trade (more horrible than the African, making Virginia a human stock farm), tearing husband from wife, and parents from children--founding a government boldly announcing the doctrine of _property_ in man, based avowedly on the divinity, extension, and perpetuity of slavery--these are our bullies; and when they are overthrown, we shall commence a new career of peaceful progress and advanced civilization. And why sow the seeds of international hatred between England and America? Is war really desired between the two countries, or is it supposed that we will yield to foreign intervention without a struggle? No, the North will rise up as one man, and thousands even from the South will join them. The country will become a camp, and the ocean will swarm with our privateers. Rather than submit to dismemberment or secession, which is anarchy and ruin, we will, we must fight, until the last man has fallen. The Almighty can never prosper such a war upon us. If the views of a foreign power have been truly represented in Parliament, and such an aggression upon us is contemplated, let him beware, for in such a contest, the political pyramid resting upon its apex, the power of one man, is much more likely to fall, than that which reposes on the broad basis of the will of the people.

Returning from this episode, I resume the narrative.