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.