'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.