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Bill of Rights ? It must exist, unless it was abrogated by the article we have already quoted.
The word repudiation, in the sense in which it is now commonly used, was first adopted in the State of Mississippi. It occurred, for the first time, we believe, in the message of the Governor to the legislature of that State, in January, 1841, in which he adverts to the plan of “REPUDIATING the sale of certain of the State bonds, on account of fraud and illegality.” The material facts in reference to the action of this State upon the subject of its debt are these. In 1838, the State chartered the Mississippi Union Bank, and, in order to provide capital for the institution, it was enacted in the charter, that the directors might borrow $ 15,500,000 ; and that the Governor might issue seven thousand five hundred bonds, for $ 2000 each, bearing five per cent. interest, and redeemable in twelve, eighteen, and twenty years, and deliver them to the officers of that institution from time to time, in proportion to the amounts subscribed for bank stock, the price of which was to be secured to the satisfaction of the directors. The bonds were made negotiable by the indorsement of the president and cashier of the bank. By an additional act, the Governor was authorized to subscribe, in behalf of the State, for $ 5,000,000 of the stock of the bank ; and he did so. In June, 1838, he delivered to the bank two thousand five hundred bonds, amounting to $ 5,000,000, payable in twelve and twenty years from the 5th day of February, 1838, and bearing five per cent. interest from their date. The charter required the bank to appoint three commissioners for the sale of the bonds, and imposed this restriction on their authority, that the bonds should not be sold under their
value. On the 18th of August, 1838, the commissioners sold all the bonds to Mr. Biddle for the sum of $ 5,000,000, payable in five equal instalments, of one million each, on the 1st day of November, 1838, and the first days of January, March, May, and July, 1839, without interest. This money was punctually paid to the bank, which went into operation ; and before January, 1841, lost all its capital.
Now we feel constrained to say, that, if this matter had rested here, the State of Mississippi would not be legally bound to pay this debt. We think the commissioners did not conform to their authority in making the sale. They were, in terms, prohibited from selling the bonds under their par value. The
value of a bond is the amount which is due upon it ; and this includes interest as well as principal. This seems to us to be the fair meaning of the words of the charter, and any other construction would render the restriction itself nugatory ; since, by allowing the interest to accumulate long enough, the commissioners would have had it in their power to obtain $ 5,000,000 for the bonds, though at the very moment when they sold them, $7,000,000 might be due upon them. They made such a sale as not to receive in cash an amount equal to the liability of the State on the bonds, and therefore we believe that they exceeded their authority. We think, also, that the State had the legal right to insist at a proper time on this want of authority, even against the subsequent purchasers of these bonds ; because any one who takes a title through an agent is bound by law to look to the authority delegated to him, and to see that he acts or has acted within its scope in making the title.
But we need hardly say, that the question, whether a sovereign state shall avail itself of its legal rights, depends upon considerations quite distinct from the mere rights themselves. Rules of jurisprudence are necessarily general, and, being general, they may, and sometimes do, work some injustice. A state, like an individual, ought to place itself quite above these general rules, and consider only the justice of the particular case. It is due to its own dignity, to the magnitude of the case, to the importance of preserving the great fountain of power and justice pure, that the most enlarged and liberal rules of equity should be observed. It is due to its position, being both a party in interest and a judge, to venture on no decision which will admit of question. And so the State of Mississippi must have thought, for so it acted.
In responding to the message of the Governor, in January, 1841, the legislature resolved,
“ First, 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 the principal and interest.
“Secondly, That the State of Mississippi will pay her bonds and preserve her faith inviolate.
Thirdly, 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.”
These resolves are such as might be expected from the legislature of a free state under such circumstances ; for a fact which we have not yet stated was known to that legislature, and, in our judgment, is sufficient to settle the question. The legislature met in 1839, for the first time after the sale of the bonds. Only one fourth of the purchase money had then been paid over to the bank.
The facts were communicated by the Governor to the legislature, and they resolved : “ That the sale of the bonds was highly advantageous
to the State and the bank, and in accordance with the injunctions of the charter, reflecting the highest credit on the Commissioners, and bringing timely aid to an embarrassed community.” The next legislature, which assembled in 1840, appointed a committee on the affairs of the bank, but uttered not one word respecting the sale of the bonds.
But the constitution of Mississippi contains a provision, that no law shall be passed to raise a loan of money upon the credit of the State for the payment or redemption of any loan or debt, unless it be sanctioned by a majority of each house, the yeas and nays being entered on the journals, and be then referred to the next legislature, public notice whereof is to be given in the newspapers three months before the election; and unless then passed by a majority in each branch of this second legislature. Upon the ground, that the State was not originally bound to pay this debt, and that the illegal acts of their agents had not been ratified by two successive legislatures, after public notice in the newspapers, Governor McNutt made his appeal to the people of the State, and, in 1842, a majority of the members of both branches of the legislature were found to be in favor of repudiation.
But although a majority of the people of Mississippi seem to have formed at that time an erroneous opinion on this question, and although we think meanly enough of the honesty of their advisers, we should not hastily adopt the conclusion, that the majority are hopelessly in the wrong. There has been, from the first, a large body of intelligent and honorable men in that State, who determined to do their duty upon this great question ; and they are now manfully engaged in the work. They have exhibited deep legal learning, sound logic, a clear perception of the great principles of justice and duty, and a calm determination which must
and will prevail in the contest. It may not be during this year or the next; but it appears to us certain, that the people of this State will see the truth, and act in accordance with it. Sufficient allowance has not always been made for the peculiar circumstances of the case. An intelligent foreigner, who feels a just indignation when he hears of repudiation, probably knows the difference between a Highland chieftain and a London merchant, but is profoundly ignorant that differences quite as great exist between the people of Mississippi and the people of Massachusetts. Probably there are few points in which these differences would be so likely to be exhibited as upon this matter of paying debts. To pay debts punctually is the point of honor among all commercial people. But the planters of Mississippi do not so esteem it. They do not feel the importance of an exact conformity to contracts. It has not been their habit to meet their engagements on the very day, if not quite convenient. Certainly, they attach no idea of dishonesty to such a course of dealing. They mean to pay, but they did not expect, when they contracted the debt, to distress themselves about the payment. If a friend wants a thousand dollars for a loan or a gift, he can have it, though perhaps a creditor wants it also. We do not mean to intimate, that there are no high qualities in such a character ; but they are different from those which make good bankers and merchants ; and, therefore, bankers and merchants ought not to expect such men to look at a debt just as they do. In time, they will see the substance of the matter and act accordingly. Convince them that their State is now pursuing an arbitrary, unfair, and oppressive course of conduct, and they will take care that it is pursued no longer. They have been in great pecuniary distress. Their condition has been so bad, that they have looked upon a creditor demanding payment of his debt as little better than an enemy, and to be treated accordingly. They have seen, that the institution which had the proceeds of these bonds was managed as if it had been a gambling-house. They have been told by those in whom they had been accustomed to put confidence, that the sale of these bonds was a part of the same nefarious course of conduct which ruined the bank, and that, if they should pay the debt, they must do it for the benefit of those who defrauded the State in making the purchase of the bonds.
deeply regret that they acted in conformity with these views. We may believe that the conduct of the State has been unwise and unfair ; that it has shown any thing but that dignified caution, and that clear perception of the great principles of justice, equity, and clemency, which a sovereign state should always exhibit in its dealings with individuals, especially where it is both party and judge. But let us not show the same want of moderation, by running into extremes ourselves ; let us not exhibit the same want of charity, by believing that a majority of the people of that State are knaves. Their affairs are now improving. The people are recovering from the sore and irritable state into which they had fallen. Allow time for them to see the truth, which the high-minded men of that State know so well how to exhibit and enforce, and we shall find, that, though the people may sometimes make a great mistake, they mean to do right, and they will discover and correct the error.
The State of Michigan has denied its obligation to pay a part of its outstanding bonds. The material facts are, that, by an act of the legislature of that State, passed on the 21st of March, 1837, amended by another act passed on the 15th of November in the same year, the Governor was authorized to negotiate for a loan of five millions of dollars, which was to be expended on the public works. Under this authority, the Governor, on the 1st of June, 1838, entered into a contract with the Morris Canal and Banking Company of the city of New York, by which he constituted that company the agents
of the State to make sales of the five millions loan. The power of the Governor to enter into this contract with the Banking Company has not been questioned. Acting under this agency, the Banking Company, before the 15th of November, 1838, sold to various persons bonds amounting to $ 1,187,000, and duly paid over to the State the proceeds of those sales. On the 1st day of July, 1841, the interest on the bonds so sold became payable, and the State not having made provision for its payment, it remained unpaid. Reasons for this default were assigned by the legislature at a subsequent period, which seem to us to be wellfounded and to afford sufficient excuse for it; but our limits will not permit us to examine or even to state them. Sufa fice it to say, that, in February, 1843, the legislature took the subject into consideration, declared that the State was