The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-06-30

elementary end ancient principles and Il
Il TINS, the law must come, or worse must en-
= sue.
: If these charters and the rights and priv
I lleges therein conferred, are not gratuitieS
on the part of the State, to those corpora
: lions, | am not capable of understanding
: what gratuity is. John Randolph once
: said: There is much that frst-rate man
ought to be ashamed to know. "-Randoph 's
: speech on Retrenchment House Rep Feb
q l, 1873; Garland's Life of Randolp, vol. >
306. But | maintain, Mr.. President that
If these charters are contracts, the Legisla-
had no power to make them irrepealable and
E irrevoeable forever. The power to amend
and repeal, Is co-extensiye with the power
to enact. Legislative bodies are changea-
bic bodies and neither can impress finally
and lrrevocably its views and policies on
the body polite. 1t would be subversive
of fundamental right to do so.
What are the powers OF the Legislature
and for what are they chosen2 answer, sir,
to make laws and hot to make contracts !;
To protect the State and promote its
interest, by just and impartial laws and
not To sell and give Il away. They may eN-
ercise the powers eff legislation-the powers
OF government to the best of their jud gment
for the public good but they cannot alien
ate, limit, or destroy these powers. Such
authority is not within the letter, spirit or
scope OF legislative agency. The Legisla-
ture is no more than the agent or trustee of
the people. Under our institutions, the
j sovereign powers of government belong to
and reside in the people These powers can
neither be enlarged nor diminished by the
repositories of delegated authority. Ii they
could be enlarged, government might be-
come absolute. 1T they could be diminish
ed or abridged, it might be stripped of the
attributes Indispensable to enable it To &C
compllsh the purposes OF its creation. All
| the powers OF the Legislature are held in
trust, for the good of the people The Leg
islature has no fee simple title to these pow
ers, or to any of them; and | suppose 1t will
not be denied by any body as principle of
| law, that before any person or body polItl-
! cal or corporate can convey an absolute and
! perfect title to anything, they must first be
/ invested with such title. 1t is familiar law
| that an agent or trustee can perform only
such acts as he is expressly aUthoFised by his
| principal to perform, or such As are necesSd-
| Tity implied from the nature Of the business,
and that an act done by him, beyond this,
| Is not binding on his principal There is |
| not now, and there never has been, any
| express duthority in the Constitution of this |
State, for the Legislature to make contracts, |
or To sell or give away the sovereign power |
| of the State, or to make any law fJrever /
! irrepealabie And, such authority Is not |
now, and never has been implied-necessari- |
ly lmplied-In the Constitution OF the state. |
In the very nature of things, it seems to me,
impossible to imply an authority in govern
mantal agents, to diminish the government
al power that is inherent in the people. The
power of the people is not Invested by the
institution of Legislatures, but only dele
gated to the latter, and this delegation being
essentially revOCable, cannot possibly au-
thorize an act that would prevent its com
plete revocation. Who IS bold enough 10 az
firm that the Legislature that granted these
charters could not have performed their
necessary and appropriate duties, without
making these so-called contracts? And yet
the power of the Legislature to do such a
thing rests entirely on imPicatioR-the inn
plication that it was Hecessary-that they
could not have discharged their proper func
lions unless they had made these pretended
contracts, unchanged and ulctangeable toreD-
gi
1t is said, that On the trial of Warren
hastings, one Of his counsel criticised Sc
verey aud at great length, IA metaphor in
the matchless speech of Sheridan, and that
Sheridan replied to it by saying, at was
the first time in his life he had ever heard
of special pleading on metaphor, or bill
OF indictment against trope.
Well, it was novelty but we present a
greater novelty. We are enslaved-great
States are peaceably, and according to the
and It may he said OF us, that We are the
first people in the history of the world who
lost their liberties on an implication of law.
Mr.. President: The power to tax, the
power to control the conduct of persons,
and the power to appropriate private prop
erty to pubice use, are essential, inaijeHdb{e,
sovereign p0toers Of governments, and one or
either of them is much 50 as the other.
They are not the subject of contracts or bar
ter or sale. Their value cannot be estimated
in dollars and cents. Thew are &EoEe price,
or rather, when they are parted with, bIO0d
6 tie prize that IS paid for them. An act Of I
the Legislature, to barter, sell, or convey
these powers, or either of them, is q fraud
on the government, and null and void. If
one of them may be disposed of in this way,
so may the others. If the power to raise rev.
enue may be sold to day. the power to pun
ish crimes may be sold tomorrow, and the
power to pass laws for the protection of civ
il rights may be sold the next dav. If the {
legislative powers may be sold by the Leg {
islature, they may, with equal propriety,
put the Executive and Judicial powers Of {
the government into market. There is no
limit to the doctrine short of humiliation,
or q government Of COFporators and mOnOp |
olies instead of the Republican form of gov {
eminent guaranteed by the Constitution.
The result to which the principle must in
evitably lead, proves that the sale of any ;
is utterly inconsistent with the nature of
free institutions, and totally at variance
with the objects and purposes of our Consti-
tuition That people cannot be properly called
free, whose rights of and to government, are !
left solely dependent on a legislative body, :
without any restraint whatever. The pro- ,
visions in the charters of these corporations J
must be construed with reference TO the
powers of the Legislature that made them,
and To mean that the privileges and exemp-
tions therin granted shall be enjoyed until l
the State shall see fit to modify them, and
no longer
These, Mr.. President, are some of the
considerations that influence me in this J
matter. They supported by authorities
that command my respect and control my
Judgment.
In much that l have said, have but ex- |
pressed the sentiments of profound and ven {
cradle judges, and approved law writer's ,
Cooley uses this language: 'To say that the {
Legislature may pass irrepealable laws, is /
to say that it may alter the Constitution 1
from which it derives its authority, since in I
so far one Legislature could bind sub /
sequent one by its enactments, it would, in /
the same degree, reduce the legislative pow :
er of its successors, and the process might +,
be repeated uutil one by one, the subjects of :
legislation would be excluded altogether r
from their control, and the constitutional 2
provision, that the legislative power shall +
be vested in the two Houses, would be to a q
greater or less degree, rendered Intellectual" t
Cooley on Const., l26, 2s4, and authorities. t
Mr.. Greenleaf, in a note to his edition of n
Cruise on real property, vol. 2, p. 81, says: Y
"In regard to the position that the grant of b
the franchise of ferry, bridge, turnpike or b
railroad, is, in its nature, exclusive, 80 that
the State cannot interfere with it by Il
the creation of another similar franchise,
tending materially to impair its value, e
it is with great Difference submitted, that <
an important distinction should be observed e
between those powers of government which I
are essential attributes of sovereignty, in u
dispensabIe to be always preserved in full Il