LONDON, 10, Half Moon Street, Piccadilly,
_June 30th, 1863._
Soon after my arrival in London from New York, my attention was called,
by some English, as well as American friends, to an article which had
appeared more than a month previously in the London _Times_ of the 23d
of March last. In the money article of that date is the following letter
from the Hon. John Slidell, the Minister of Jefferson Davis at Paris.
'MY DEAR SIR:
I have yours of yesterday. I am inclined to think the people of
London confound Mr. Reuben Davis, whom I have always understood
to have taken the lead on the question of repudiation, with
President Jefferson Davis. I am not aware that the latter was
in any way identified with that question. I am very confident
that it was not agitated during his canvass for Governor, or
during his administration. The Union Bank bonds were issued in
direct violation of an express constitutional provision. There
is a wide difference between these bonds, and those of the
Planters' Bank, for the repudiation of which, neither excuse
nor palliation can be offered. I feel confident that Jefferson
Davis never approved or justified that repudiation. What may
have been his private opinions of the refusal to consider the
State of Mississippi bound to provide for the payment of the
Union Bank bonds, I do not know.
Yours truly,
'JOHN SLIDELL.'
It is due to the editor of the _Times_ here to state, that, in his money
article of the 23d March last, he refers to the controversy of that
press with Jefferson Davis on that question in 1849, and, as regards the
suggestion of Mr. Slidell, that it might have been Reuben Davis who was
the repudiator in 1849, instead of Jefferson Davis, the editor remarked,
'it is to be feared that the proof in the other direction is too
strong.' Indeed, the editor might well be astonished at the supposition
that Jefferson Davis, who subscribed the repudiation letter in question
of the 25th May, 1849, as well as a still stronger communication of the
29th August, 1849, should have been confounded, during a period of near
fourteen years, by the press of Europe and America, with Reuben Davis,
and that the supposed mistake should just now be discovered, especially
as Reuben Davis never was a Senator of the United States from
Mississippi, or from any other State.
I was asked if it really was Reuben or Jefferson Davis who was the
author of the letter in question advocating the repudiation of the Union
Bank bonds of Mississippi, their recollection being, that it was the
latter. I said that the repudiation letter in question of the 25th May,
1849, was subscribed and published at its date in the Washington
_Union_, by Jefferson Davis, as a Senator of the United States from
Mississippi, which position he then held, that he was personally well
known to me for nearly a fourth of a century, as was also Reuben Davis,
and that the latter never had been a Senator of the United States from
Mississippi, or any other State, as was well known to me, and would be
shown by reference to the Journals of the United States Senate. I
stated, that I had represented the State of Mississippi in the Senate of
the United States from January, 1836, until March, 1845, when, having
resigned that office, I was called to the Cabinet of President Polk, as
Secretary of the Treasury of the United States, and remained in that
position until the close of that administration in March, 1849. I added,
that I was in Washington City, the capital of the Union, and residing
there as a counsellor at law in the Supreme Court of the United States,
when the first repudiation letter of Jefferson Davis, communicated by
him to the editor of the _Union_ (a newspaper of that city), was
published, on the 25th May, 1849, in that print, and very generally
throughout the United States. It was remarked by me, that it was well
known to myself personally, and I believed to every prominent public man
of that date, especially those then in Washington, that Mr. Jefferson
Davis was the author of that letter then published over his signature,
and that he defended its doctrines, with all that earnestness and
ability for which he was so distinguished. I was also residing in
Washington, when Mr. Jefferson Davis published, over his signature, as a
Senator of the United States from Mississippi, his well-known second
repudiation letter, dated at his _residence_, 'Brierfield, Miss.,'
August 29, 1849. This letter was addressed to the editors of the
_Mississippian_, a newspaper published at Jackson, Mississippi, and was
received by me in due course of mail. This letter extended over several
columns, and was an elaborate defence of the repudiation of Mississippi.
This letter also was generally republished throughout the United States.
These views of Mr. Jefferson Davis attracted my most earnest attention,
because, after a brief interval, he was one of my successors in the
Senate of the United States, from Mississippi. I had always earnestly
opposed the doctrine of repudiation in Mississippi, and the Legislature
of 1840-'41, by which I was re-elected, passed resolutions by
overwhelming majorities (hereafter quoted), denouncing the repudiation
either of the Union Bank, or Planters' Bank bonds.
At the period of the conversations before referred to, late in April or
early in May last, I was, on this recital of the facts, strongly urged
to make them known in Europe, to which my consent was given.
After some investigation, however, the necessary documents fully to
elucidate the whole subject could not be obtained here. It was
necessary, therefore, to write home and procure them. This has been
done, and I now proceed to a narrative of these transactions from the
authentic historical public documents.
The first letter of Mr. Jefferson Davis before referred to, of the 25th
of May, 1849, was published by him as a Senator of the United States
from Mississippi, over his signature, in the _Union_, a newspaper
published at Washington City. That letter is in these words:
'DAILY UNION, WASHINGTON CITY, _May 25th, 1849_.
'_Statement furnished by Jefferson Davis,
Esq., Senator of the United States._
'The State of Mississippi has no other question with
bondholders than that of debt or no debt. When the United
States Bank of Pennsylvania purchased what are known as the
Union Bank bonds, it was within the power of any stock dealer
to learn that they had been issued in disregard of the
Constitution of the State whose faith they assumed to pledge.
By the Constitution and laws of Mississippi, any creditor of
the State may bring suit against the State, and test his claim,
as against an individual. To this the bondholders have been
invited; but conscious that they have no valid claim, have not
sought their remedy. Relying upon empty (because false)
denunciation, they have made it a point of honor to show what
can be shown by judicial investigation; i. e., that there being
no debt, there has been no default. The crocodile tears which
have been shed over ruined creditors, are on a par with the
baseless denunciations which have been heaped upon the State.
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. To sustain the credit of that
rickety bank, the bonds were hypothecated abroad for interest
on loans which could not be met as they became due.
'A smaller amount is due for what are termed Planters' Bank
bonds of Mississippi. These evidences of debt, as well as the
coupons issued to cover accruing interest, are receivable for
State lands; and no one has a right to assume they will not be
provided for otherwise, by or before the date at which the
whole debt becomes due.
'JEFFERSON DAVIS.'
To this letter the London _Times_, in its money article, of the 13th
July, 1849, replied as follows:
'The case of Mississippi stands thus: In 1838 the State issued
bonds for five millions of dollars, to establish the Union
Bank. These bonds were dated June, 1838, bearing five per cent.
interest from date, and it was stipulated with the bank that
they should not be sold under their par value. On the 18th
August following, the bank sold all these bonds to the United
States Bank for five millions of dollars, payable in five equal
instalments in November, January, March, May, and July, but
without interest. The money was punctually paid to the
Mississippi Bank, and the Legislature of Mississippi, on the
terms of the sale being communicated to them, resolved, _'That
the sale of the bonds was highly advantageous to the State, and
in accordance with the injunctions of the charter, reflecting
the highest credit on the Commissioners, and bringing timely
aid to an embarrassed community.'_ In little more than two
years, however, the Mississippi Bank became totally insolvent,
having lost the entire five millions invested in it by the
State. Immediately on this having transpired, the Governor of
the State sent a message to the Legislature recommending them
to _repudiate_ (this was the first time the word was used)
their obligations, being founded on the plea, that as the bonds
were issued with interest payable from the date, and they had
been sold to the United States Bank for their nominal amount
only, the stipulation that they should not be disposed of below
their par value had been departed from. He further urged that
although the bonds had been sold ostensibly to Mr. Biddle, the
president of the United States Bank, the sale was actually to
the bank itself, which, by its charter, could not legally
purchase them. Hence, although Mississippi had received the
money for the bonds, it was thus proposed to refuse to repay
it, on the ground that the purchaser had no right to buy them.
The Legislature, however, was not quite prepared for this, and
accordingly, in responding to the Governor's message, they
resolved: '1st. That the State of Mississippi is bound to the
holders of the bonds of the State sold on account of the bank
for the amount of principal and interest. 2d. That the State of
Mississippi will pay her bonds, and preserve her faith
inviolate. 3d. That the insinuation that the State of
Mississippi would repudiate her bonds and violate her plighted
faith, is a calumny upon the justice, honor, and dignity of the
State.' But after this, the pecuniary condition of the State
became rapidly worse, and the disposition to pay diminished in
proportion. Accordingly a joint committee of the Legislature
appointed in 1842, reported that the State was not bound to pay
the bonds, advancing the reasons before mentioned, and also
another, namely, that the bonds had not been sanctioned in the
manner required by the Constitution, since, although the
provision that no loan should be raised, unless sanctioned by a
law passed through two successive Legislatures, had been
complied with, and the bonds had been legally authorized, the
act also prescribed certain conditions regarding the Bank of
Mississippi, which conditions had been altered by a subsequent
act, that had only passed through one Legislature.
'In addition to the five millions thus repudiated, Mississippi
owes two millions which she recognizes. It has always, however,
been a difference without distinction, since she pays no
dividends on either. From the period of repudiation up to the
present moment, all representations of the bondholders have
been treated with disregard. About a year and a half back,
however, one of the citizens of Mississippi, a Mr. Robbins,
admitted the moral liability of the State, and proposed that
the people should discharge it by voluntary contributions.
'The next step is the appearance of the letter from Mr.
Jefferson Davis, with whom we are now called upon to deal. This
statement, which was transmitted by him to the Washington
_Union_, in reply to our remarks of the 23d February last, runs
as follows.'
Here the _Times_ inserts Mr. Jefferson Davis's repudiation letter before
quoted.
'The assurance in this statement that the Planters' Bank, or
non-repudiated bonds, are receivable for State lands, requires
this addition, which Mr. Jefferson Davis has omitted, that they
are only so receivable upon lands being taken at three times
its current value. The affirmation afterward, that no one has a
right to assume that these bonds will not be fully provided for
before the date at which the principal falls due, is simply to
be met by the fact that portions of them fell due in 1841 and
1846, and that on these, as well as on all the rest, both
principal and interest remain wholly unpaid.
'Regarding the first part of the statement no comment could be
made which would not weaken its effect. Taking its principle
and its tone together, it is a doctrine which has never been
paralleled. Let it circulate throughout Europe, that a member
of the United States Senate in 1849, has openly proclaimed that
at a recent period the Governor and Legislative Assemblies of
his own State deliberately issued fraudulent bonds for five
millions of dollars to 'sustain the credit of a rickety bank;'
that the bonds in question, having been hypothecated abroad to
innocent holders, such holders had not only no claim against
the community by whose executive and representatives this act
was omitted, but that they are to be taunted for appealing to
the verdict of the civilized world, rather than to the judgment
of the legal officers of the State by whose functionaries they
have been already robbed; and that the ruin of toilworn men, of
women, of widows, and of children, and the 'crocodile tears'
which that ruin has occasioned, is a subject of jest on the
part of those by whom it has been accomplished; and then let it
be asked if any foreigner ever penned a libel on the American
character equal to that against the people of Mississippi by
their own Senator.'
To this reply of the London _Times_, which (except in portions of
Mississippi) was generally approved throughout the Union, Mr. Jefferson
Davis responded in a very long letter, dated from his residence,
Brierfield, Mississippi, August 29, 1849, addressed to the editors of
the _Mississippian_. He begins as follows:
'The London _Times_ of July 13, 1849, contains an article which
most unjustly and unfairly attacks the State of Mississippi and
myself, because of a statement I made in refutation of a
former calumny against her, which was published in the same
paper.'
This article of the London _Times_ Mr. Davis denounces as 'a
_foreigner's slander_ against the government, the judiciary, and people
of Mississippi;' 'very well for the high Tory paper as an attack upon
our republican government;' as 'untrue;' 'the hypocritical cant of
stockjobbers and _pensioned presses_' 'reckless of reputation;' 'hired
advocates of the _innocent_ stock dealers of London 'Change;' 'a
calumnious imputation.' These are pleasant epithets which Mr. Jefferson
Davis applied to the London _Times_ and the London 'Change. But Mr.
Jefferson Davis was very indignant, not only with London, but with all
England; for he says,
'With far more propriety might _repudiation_ be charged on the
_English Government_, for the reduction of interest on her
loans when she consolidated her debts; for the income tax,
which compels fundholders to return part of the interest they
receive on their evidences of public debt, for the support of
the Government which is their debtor.'
According, then, to Mr. Jefferson Davis, the London _Times_ and the
London 'Change are great reprobates, and it is not Mississippi, but 'THE
ENGLISH GOVERNMENT' which has repudiated their own public debt.
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, reenacted
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 reenacted 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
reenacted 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.
We have seen the repudiating Executive message and repudiating
legislative resolutions of January, 1842, and their failure to influence
the decision of the court. And now, we approach another act in the
drama. The court having affirmed the constitutionality of the Union Bank
bonds, and as the act of 1833 directed their payment, the Legislature of
1844 enacted a new law, in these words: 'That hereafter, no judgment or
decree of any court of law or equity having jurisdiction of suits
against the State, shall be paid by warrants on the Treasurer, or
otherwise, without an appropriation by law, any former law or usage to
the contrary notwithstanding.' The 'law and usage' were plain, to pay
such decrees, as required by the law and Constitution; but both were
disregarded, and the act of 1833, for all practical purposes, repealed.
It remained in part, on the statute book, only to invite to the
gambler's game of 'odd I win, even you lose'--that is, if, under the act
of 1833, there should be a decision in any case in favor of the State,
it should be conclusive, but if against the State, the money should not
be paid, where (as in the case of these bonds) the Legislature differed
from the court, and had already repudiated its decision. Such was the
action of the Legislature in 1842 and 1844. In 1842, it repudiated, in
advance, the decision of the court on these bonds, and, after that
decision, repealed so much of the law as required the payment of the
decrees of the court. Now, with a full knowledge of these facts, is it
not amazing, incredible, that, several years subsequently, Mr. Jefferson
Davis should have declared, in his first letter of 1849, 'By the
Constitution and laws of Mississippi, any creditor of the State may
bring suit against the State, and test his claim as against an
individual; but, conscious that they have no valid claim, they have not
sought the remedy;' and he repeats this averment, substantially, in his
second letter. Now, who would have supposed, that more than five years
before the date of Mr. Davis's letters, the highest judicial tribunal
of the State, the one designated by the law and the Constitution, had
already unanimously decided that these bonds were valid, and that the
State Legislature, instead of paying the money, had _repealed the
appropriation_. But there came a new court, all chosen by the people,
under the wretched system, in many of the States, of an elective
judiciary, but unknown to the independent Federal judicial system. A
suit was brought in 1851, under the act of 1833, on one of the Union
Bank State bonds and coupons before the Chancellor. After elaborate
argument, the Chancellor decided against the State, and entered a decree
for the payment of the money. The State, as authorized by the law,
appealed from this decision to its own High Court of Errors and Appeals,
elected by the people.
Surely, it was supposed, that this new court, so recently chosen by the
people, after the legislative repudiation, would be governed by '_a
proper regard for the public interest and public opinion_.' Before the
Chancellor, as well as the High Court, all the objections made by
Governor McNutt and Senator Davis were earnestly pressed by the
Attorney-General of the State and associate counsel, but in vain; the
decision of the Chancellor was against the State, and it was unanimously
affirmed by the High Court. This case will be found reported by the
State reporter, Johnson _v._ The State, April term, 1853. (3 Cushman,
625 to 882,--257 pages.)
In this case, the bond sued on is given in the record, and will be found
an exact copy of that (heretofore quoted) under the original act, which
had passed two successive Legislatures, the principal as well as coupons
being payable in Federal currency.
On the reverse side of the bond is the following:
'L450 sterling. The President, Directors, and Co. of the
Mississippi Union Bank, do hereby designate the agency of the
Bank of the United States in London, as the place of payment of
the within bond and interest, and hereby assign and transfer
the same for value received to the bearer, principal equal to
L450 sterling, and guarantee the payment of the same at the
place designated.
'S. GWIN, _Cashier_.
'H. G. RUNNELLS, _President_.
'Mississippi State Bond, No. 91. 'Redeemable February 25th,
1850.'
As to the place where the bond was made payable, there could be no
objection, for the original, as well as the supplemental act, gave full
authority to make the bonds payable abroad. But as to the objection that
they were said to be payable in sterling, at the rate of four shillings
and sixpence to the pound, the answer was, as shown: 1st. That this was
the true rate of exchange. 2d. That the bond was payable in Federal
currency, and this was all the bondholder ever asked from the State. As
to the allegation that the bonds were sold below par, the court showed
most conclusively from the facts and agreed case, that they were sold
above par, and their constitutionality was fully affirmed.
The argument of the Attorney-General (Glenn) for the State, embraced 32
printed pages; in addition to which was an elaborate argument by his
associate, Mr. Stearns. The opinion of Chief Justice Smith embraced 45
pages, the concurring opinion of Justice Yerger, 27 pages, and Justice
Fisher concurred. The State was not satisfied, but moved for a
reargument, that of Wharton for the State, embracing 54 pages, and that
of Mays, on the same side, 32 pages; but the court adhered to their
decision, and unanimously affirmed the decree of the Chancellor against
the State. The decision of the court, in the heading of the case, is
thus given by the reporter.
'The bonds might have been legally issued to the bank, by the
Governor, on the 5th June, 1838, pursuant to the provision of
the original charter of the bank, and the faith of the State
pledged for the purpose of raising the capital.' 'The
supplement was not void in consequence of not having been
passed in conformity with the provisions of the Constitution
contained in the 7th article, 9th section of that instrument.'
'The object of the original pledge of the faith of the State,
was not changed by the supplemental charter, but it was passed
in aid of the original charter.' 'Campbell _v._ Union Bank (6
Howard 625) _cited and confirmed_.' 'The liability of the
State, under the operation of the charter of the bank, attached
so soon or whenever the bonds were legally executed to the
bank, and the execution of the mortgages was neither a
condition precedent to the pledge of the faith of the State,
nor the condition on which the State bonds were to be executed
and delivered.' 'It does not appear from the facts that the
bonds were sold for less than their par value. Held that the
sale was neither illegal nor void.' 'If the commissioners in
the sale of the bonds received 'sterling money of Great
Britain' at the rate of four shillings and sixpence to the
pound, that is not such an act on their part as would avoid the
bonds.'
Here, then, the whole case was again fully decided in 1853, by the very
tribunal to which Jefferson Davis, in 1849, invited the bondholders. And
did he or the State then yield or pay the obligations. Not at all, but
they adhered to the repudiation of these bonds, disregarded and defied
the decision of the court, and have never paid one dollar of principal
or interest, and never will, so long as slavery exists in Mississippi.
And now, after the almost unanimous passage of the supplemental act in
1838, the sanction of the Legislature in 1839 and 1841, the decision of
the Circuit Court and Chancellor, and of the High Court of Errors and
Appeals, how strange is the assertion of Mr. Slidell, that 'The Union
Bank bonds were issued in direct violation of an express constitutional
provision.' It is a well settled principle of American law, so
adjudicated by the State Courts, as well as by the Supreme Court of the
United States, that, 1st, To authorize the court to decide that a law is
unconstitutional, the repugnance to the Constitution must be '_plain and
palpable_.' 2d., That the interpretation given by the _highest court of
a State_, to a State law, or constitution, '_is conclusive_.' But the
truth is, as is proved by Mr. Slidell's own letter (having never resided
in the State), he knew nothing of the subject, or he never would have
spoken of Jefferson Davis as 'Governor,' or alluded to 'his
administration,' when he never held that office. But it is of some
moment, at least to the unfortunate bondholders, that the minister of
Jefferson Davis at Paris, _avers now_ that these bonds are
_unconstitutional_.
But, Mr. Slidell says, 'There is a wide difference between these bonds
and those of the Planters' Bank, for the repudiation of which, neither
excuse nor palliation can be offered.'
Now, in a subsequent letter, I will prove conclusively, from authentic
documents, that the State of Mississippi has, _most effectually_,
repudiated those bonds also, and that Jefferson Davis has sustained that
repudiation.
In the case, also, of another slaveholding State, I will prove, from the
public documents, that Jefferson Davis volunteered to sustain her in the
repudiation of her State bonds, in a case more atrocious, if possible,
than that of Mississippi. As Jefferson Davis is now at the head of a
slaveholding conspiracy, endeavoring to destroy the Government of my
country, and is now also engaged in selling worthless Confederate bonds
in this market, I have deemed it my duty to make this publication.