Liberty advocate. [volume] (Liberty, Miss.) 1835-1866, 1841-10-21
JACKSON, Miss, July 81, 184l.
James Eiliol, Esq, President oftbe Mis-.
SiSSippi Union Bank.


James Elliot, Esq PreSIdeat ofHe Mi
sissippj Union Bark.
SIR Your communication of the lot
inst, in which my opinion is requested, a
to the liability Of the State of Mississippi
upon her bonds, executed to, and sold by
the Union Bank, has been duly consider,
ed.
Deeply impressed with The Importance
which the question has assumed in the eve
OF the civilized world, | have bestowed
upon it all the thought and reflection
which my mind is capable Of afiordng.-
Constituting and engrossing theme OF
State politics, It has necessarily given rise
to that diversity of views, which is ever
exhibited IN times of party excitement
Unbiased by motives of either a personal
or political character, the investigation
which have given to he subject results
in the clear and deliberate convection that.
the State is liable, upon the soundest prin-
clPles of moral obligation.
True it is, that there is no process
known 10 the law, by which the State
may be peaceably enforced to discharge
F.. or liquidate her debts however honestly
or legally contracted Those who trust a
State, alone depend upon her faith and
honor. The Stale of Mississippi, except
as TO such powers as are surrendered 10
the federal government, is free and in.
dependent sovereignty and although she
has established a constitutional forum,
where all controversies arising between
the State and individuals are to be heard
and determined, still, in no event, can she
be reached by means of an execution
But the question involving the legality or
lIIegaty Of the bonds, is one which the
people or citizens Of the State are legal,
Iy incompetent TO determine for, in ODE.
dence 10 the acquisitions Of the 10th sec
ton OF the 7th article OF our constitution,
the Legislature have conferred upon the
court OF Chancery original Jurisdiction of
all questions which may arise between the
Il individuals whether citizens or aliens -
That law provides that, "any person or
persons, deeming him, her or themselves,
TO have a just claim against the State,
may file bill in Equity, in the superior
court Of Chancery against the State of
Mississippi" &c. Then, it is perfectly
clear that, where any controversy exists
as 10 the legality of any claim against
the State, the only lawful and constitution
al forum where the question can be tried
and settled, is that appointed and consts
tuted by the law. The decree of the
Chancellor, or Of the High Court, in case
OF appeal, on such case, would be bind-
ing and obligatory upon the parties, and
mere can be no truth in the argument.
that such a decree, if rendered against
the State, would not be binding, " in rela.,
ZION 10 the parties 10 the constitutional
compact" Who, let US enquire. are the
authors and trainers of the Constitution ?
Who delegated the judicial power ? The
people themselves. They authorized and
empowed the Legislature "to direct in
what manner and in what courts suits
might be brought against the State
Ihey then Immediately delegated to the
Legislature the right toes;abish the court ,
Pf Chancery, with this judicial power,
Rnd consequently, the decree OF that court, t
pPon the hearing of this question, would {
pot only be obligatory and conclusive, a
upon every department of the State gov> ;
ernment, would be binding upon the whole t
people. The executive has no authority b
Fhalover to pronounce upon the legality b
Y the State bonds, and when he under- a
HaKes TO do SO, it is high assumption
" power, on his part, and in deroSation !
" the fundamental law of the land 1t is Il
re exercise OF Judicial power, and Their p
fore, IN utter violation Of the st section Il
n the I'd article Of the constitution, which il
aeclares that, "ihe powers Of the Govern "
pent OF the State Of Mississippi shall be b
RVlded into three distinct departments, Il
~ each OF them confded to separate
RVuy OF magistracy, TO wit those which d
~ legislative, to one those which are Ii
.puicial, TO Their and those which are o
9Aecuilve, to another" No one can hess n
~ 70 believe that the question involving a
II ",a'e liability is entirely legal one, al
~ therefore, lis decision calls for the Il
r .oise OIL judicial power and discretion. p
~ power to construe law or contract ii
vested by the constitution in the lud- d
y--'helore 1t is the appropriate Il
SHeuon oil the judiciary to conslrue laws. eli
men, case under the constitution and to
M n does arise" says great jurist, "if tu
capable of judicial investigation and pc