it ever existed, must continue until it is discharged, either JANUARY 1831

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by that or the federal government. If the plaintiff rendered the services which the prear ble to the act recites, the government of Mississippi has derived from them a The Governpolitical benefit. That territory could not be admitted a member of the federal family, until it acquired the amount of population which the laws of Congress require. The period for its admission would surely arrive sooner, if the lives of its citizens were preserved, than if they had fallen victims to "Indian barbarity." It is however quite probable that the admission of Mississippi or of Alabama, was not accelerated by the services of the plaintiff; yet as this is only a probability, and as the preamble leaves uncertain the extent of his services, I am disinclined to say that the plaintiff's services, in a political point of view, were entirely valueless. If they were of any value, no matter how inconsiderable, then is there a sufficient consideration to sustain the grant; for the question is not whether the consideration bears a just proportion to the compensation made, but is there any consideration.

Having shewn that the act of December, 1821, so far as it proposes to compensate with money, the services and losses of the plaintiff, is sustained by the consideration of moral duty, imposed upon the territorial government of Mississippi, it may be well to inquire, whether in th that point of view, the act is inhibited by constitutional principle. By the first section of the declaration of rights, it is declared, "that all freemen, when they form a social compact, are equal in rights; and that no man or set of men, are entitled to exclusive separate public emoluments or privileges, but in consideration of public services." This declaration is restrictive of the right of the legislature, to confer exclusive privileges upon the citizen; but leaves that body free to remunerate public services, and indemnify losses incurred for the common advantage. Legislative action is not so much trammelled, as to forbid an appropriation of money for any other purpose than the discharge of the perfect obligations of the State. States are but an association of individuals for political purposes, and have moral duties to perform, which of course impose moral obligations for their performance. It could never have been the design of any people, cherishing a just system of ethics, to prevent the discharge of these, by the inhibition of fundamental law. In fact, the right to remunerate for public services, is expressly acknowledged,

JANUARY 1831and the right to compensate for losses, is neither impliedly ✓ or expressly taken away; it is one thing to grant emoluDale ment, but quite a different thing to reimburse an individThe Govern- ual his expenditures for the public interest; the one implies profit or advantage, the other the payment of that which may be claimed ex debito justitiæ.

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If the dictates of moral justice should have impelled the local government of Mississippi, to compensate the plaintiff for his sacrifices, sustained in the protection of her citizens, is not the obligation to do this, equally imperative upon Alabama? Her jurisdiction and sovereignty, by a change of government and geographic limits, now prevail over the portion of that territory where his services were rendered and his losses sustained. The right of a people to change their form of government, is a principle acknowledged as well by the law of nature as of nations, and is founded upon the duty of mankind, to provide for their security and happiness; but a change can have no influence, either upon the rights of individuals, or of nations, unless the continuance of these rights are incompatible with the new government. With regard to the public debts, as they were contracted by the consent of the creditor, so only can they be discharged, either by payment or the release of the debtor. This release must come from the creditor. In inquiring into the force of national engagements, we must distinguish between power and right, as abstractly considered; questions of the first description are not examinable by the judiciary; those of the second, form fit topics for their examination. Again, the moral obligations of states, like those of individuals, are in their nature permanent and continuing; and derive not their force from the vacillating opinions of man; they do not change with the tide of events; what to day was considered sufficient to impose a moral duty, was so considered yesterday, and will be to morrow; hence a State cannot be absolved from its performance by a change of its political condition.

The provision of the declaration of rights, which I am examining, does not seem to limit the legislature in conferring emoluments and privileges, for services which were rendered after its adoption. The language is general, and leaves the legislature free to compensate all public services, without regard to the period of their performance: as therefore an extended construction is most promotive of justice, and does not oppose the object which the framers

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of the constitution had in view, I am inclined to give toJANUARY 1831 this provision its full scope and operation. The act of December, 1821 then, so far as it proposes to make to the plaintiff a pecuniary compensation for his services and The Govern losses, is not repugnant to constitutional restriction. We will now test by the same standard, the validity of so much of that act, as directs the plaintiff to be commissioned as a brevet brigadier general in the militia of this State. The fourth section of the article of the constitution, in regard to the militia, directs that "all officers of the militia shall be elected or appointed in such manner as may be prescribed by law; provided, that the general assembly shall not make any such elections or appointments, other than those of adjutants general, and quarter masters general." This provision is a clear inhibition of power in the legislature to appoint militia officers, other than those expressly excepted; and its wisdom is obvious. If appointments were made in any other manner than by election by the militia themselves, there would be likely to exist a want of confidence in the officers, which is essential to give strength and stability to an army, and to keep alive a proper subordination and discipline between the commanders and the commanded. Without employing further illustration upon this topic of inquiry, I will only remark that the statute and the constitution, in the parts we are considering, are so conflictive with each other, that they cannot both stand together.

It has been argued for the defendant, that the statute cannot be invalidated in part, and operative for the residue; that, that part of the act which is opposed to the constitution, will so taint and corrupt the entire enactment, as to render it void in toto. This argument merits an examination: The act contains either two separate and independent provisions, the first requiring that the plaintiff shall be paid the half pay of a colonel in the army of the United States; the second conferring the rank of brevet brigadier general in the militia of this State; or else the latter provision is to be considered as a condition annexed to the first, and in either point of view, the result will be the same. Legislative grants, like the deeds of individuals, should be construed most strongly against the grantor, and most favorably for the grantee. Such an exposition must be given, if practicable, as will make every part operative and efficient, ut res magis valeat quam pereat. If the validity of all its parts cannot be maintained

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JANUARY 1831as reconcileable with the paramount law of the constitution, those parts which are not prohibited must stand; if a contrary rule were to prevail, then indeed would the juThe Govern- diciary be justly chargeable with placing itself above the legislative power. Courts of justice are bound to give effect to statutes which do not oppose the constitution, and they have not the moral power to refuse effect to them entirely, because in some of their parts, they are objertionable; but it is their duty to scan them, and to distinguish between the parts which are valid and those which

or.

a 2 Peters' R. are invalid. Vide the Bank of Hamilton v. Dudley's heirs a

524.

If a contract be made between individuals, by which one of the parties obliges himself to do several things, some of which are against, and others consistent with law, the contract shall be good to the extent of its legal stipub Co. Lit. N. lations. But if the things against law are inhibited by statute, the contract shall not prevail, even so far as it is c 8 John. R. legal.c From these legal rules, is deduced the argument I am examining. The analogy between legislative grants and individual contracts, is not in every respect discernable. The one is an act of legislation, with such provisions as the law-making power may think proper to insert, to which the grantee has not by his immediate agency contributed; the other is the act of both the contracting parties, with such stipulations as they may agree upon; without the consent of each, it is not consummated. In the one case, it would be unjust to permit the grantor who alone had dictated the terms of the grant to avoid it, because he had granted more than he was authorized; while in the other case, as both parties were alike concerned in prescribing the terms of the contract, it would be entirely just, and perhaps public policy would require that it should be void in toto, because in some of its parts, it was opposed by positive law. But if this view be founded in error, and the analogy between legislative grants and individual contracts is just, I think it may be demonstrated, that the acceptance of a military commission and a liability to serve the State, in that character, is but a condition annexed to the grant of compensation for services and losses; the latter is the principal, the former the incident. Nor is it a condition precedent, for no particular period of time is fixed for its performance, and in its nature, it cannot be precedent; but it must be held as a condition running with the pecuniary grant, for which a time of payment is ascertained. Conditions, the performance of which are notJANUARY 1831 essential to the vesting of an estate, but on which its continuance depends, are called conditions subsequent, and are not objects of favor in law, because they tend to de- The Governstroy estates. If a condition be impossible to be performed, or is against law, the right, or estate to which it is annexed, having once vested, is not thereby divested; hut becomes absolute and unconditional. The condition then a 4 Kent'a which required the acceptance of a military commission, Com. 125. being prohibited by the constitution, is void; and the right to the pecuniary grant having vested, is absolute and unconditional.

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It is inferable from what has been already said, that so much of the act of the 1st January, 1823, as declares that the plaintiff shall not rank as brevet brigadier general, by virtue of the act of December, 1821, is not opposed to the constitution, but is rather nugatory, because that act was not pro tanto constitutional. Whether the act of January, 1823, is unconstitutional, so far as it declares that that act shall be so construed as to prevent the plaintiff from receiving an allowance for forage and rations, depends upon the question of fact, whether these constitute a part of the pay of a colonel in the army of the United States. If they are allowed for the purpose of defraying his necessary expenses, and are not intended as a part compensation for his services, then is the act free from constitutional objections. These conclusions seem so necessarily to flow from what has been said on another branch of this case, that illustration would be superfluous.

A question of the gravest moment is yet to be examined. It is this, is the act of the 31st of December, 1823, an enactment within the legitimate sphere of legislative competency? This is confessedly a question of great delicacy, and I trust I approach it with a becoming sense of its importance; it brings into view, to some extent, the powers of the respective departments of government, and is well calculated to excite the jealousy of that branch which is charged with having transcended its constitutional limits. While I am fully impressed with these sentiments, I should be reckless of the station I occupy, and forgetful of my obligations to my country, did I not freely and candidly consider the question, and declare the conviction of my judgment thereupon.

The right of the judiciary, to scan legislative acts, with the view to ascertain if they are repugnant to constitu