Nashville union and dispatch. [volume], November 24, 1866, Image 1

About Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868

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N A'SBAf I'ELEf ' TENMESSEE; ' 1 " SATURDAY, NOVEMBER
mi ml o m -vw ; iivu . t pv rrrnu;
if
24, 1866. . - i -
NEWS TELEG-EAMS.
FKOX WASHIXGTOX.
Invest Ifjnl lens Jiy the Retrenchment
Committee -Discovers" of Extensive
Cotton Frnudti -Article oflinpcricU
mcnt Prepared, Ktc.
Nct YonK. Nov. 23. A Herald's Wash
ineton special says: The investigation which
is going on by the Retrenchment Committee
1 1 - , I , I
has developed lacts which implicate parties
occupying high and influential positions
under the Government, in the cotton frauds.
A great deal of fraud, more than was at firlf
, t , t a.. r 1
supposed, Jiaa ueen pracuceu upon me uuv
ernmentand citizens of the South, by the
cotton agent . It appears that these agents
were in the habit of confiscating largcuan
tities of cottcn in the namff of life GoYern-
ment. and after it had remained in their
hands a short time,, they turned it over to
outside parties, who sdla'it ami divided the
proceeds with the agents.
Another came which, was resorted to ex
iensivelv bv tl'.ese men. was to release the
cotton upon payment of a handsome sum.
We had a repdrthere that prominent Radi
cals had a meeting in Philadelphia, the
20th inst., at which articles of impeachment
against thjPresdent were prepared, ( Tliey
are toVe "submitted to .a teuicusnof Republi
can members of Congress on the Saturday
wrior to the meeting of Congress. The
names of the parties attending the eaucu&
in Philadelphia will be furnished in due
time.
Official notice is given that the President
will haTG.no. timo to devote to office-seekers
until alter me meeting oi vongrcss.
Ata conference between the Second Comp
troller and Second Auditor, in relation to
bounty in casesiof colored troops, it was de:
cided proof of freedom on the 19th of
April, 1801j,fchould he no longer required,
but full effect given to the law of Congress,
approved June 15th, 1SC0, and the soldier
accorded the benefit of the presumption, if
the contrary did not appear upon muster
roils, and the bounty allowed, if otherwise
entitled.
Tne &cdnu Auditor has dcdiuVdthai
where discharged' colored -soldiers have ap
plied or may hereafter apply to his office for
anv nrrearntres of nav. not "paid in 'final dis
charge, or for bounty provided by the act of
- . -n, O " , i Ml 1 1 1 ? 1 1
JUly Z-U, 1001, lie will aiso- aiiuw in me
settlement ,of suoh cja'uus the, additional
bounty provided by he att dfJuly 23th,
18CG, if such bounty shall be found due.
The Commissioner ofjndian Affairs is in
formed that the reports' of h'ostilify-of 'part
of the Cheyennos and Arapahoes are with
out foundation. The country adjacent to
the Smoky Hill route is perfectly .safe for
lravl.' ' " 1 ' -' -"
FR03I EW YORK. ' '
The Distillery FraudsThe Privateer.
Meteor Cnse.Etc.
New Yokic, Nov. 23. The young officers
of the household of the Prince of Higsapo
lertuatc, of the Japnncsh- Empire, are so
journing in this city. '
The cases of Messrs'. Wilson and Cochre,
who were charged with implication in the
recent Brooklyn distillerv frauds, were be
frrS Qoroer Newton, jealerdaj . birt owine
tp the absence of the counsel forthe accused,
were adjpurncd until to-day.
Anbtliernstiuery was nezed on dnes-,
day, in Wiljmmaburg, whee jpfjarenfly
another slircWJ Sjheme was goingoorout3
wit the ISWi he still anadiMiirenara
kept in an unfinished condition, and the own
ers intimate that they wilUtakejQuUUicensel
as soon as thev linish repairing tneir cstal)
lbhmta. The officers discovered tlje stUl
in fujl-blast, aboiiF4 o clocbinthe'mqrningf
anu arrpsuiu uit; ijjpwciuiftt
'The CiV?e 6f the alleged privateer Meteor
was up before Judge Nelson, in the U. S.
Circuit Court, yesterday. In a pro firma dis
cussion as to Jixing a day fcr .hearing the ar
gumennrt th catc, in cdnricctfon wifii'iJud'ge
BctLs' decision condemning the vessels, the
U. S. District Attorney was in favor of let
ting the casffgo' at! Once, without-' argument,
from the Circuit Court to the bench of the
Supremo Court of the United States at Wash
ington. This will, in all probability, "be the
course adopted.
Trouble with the United States An
ticipated Xcw TrinlH for Condemned
,TcnianIcmiindel.
JIOKTBSAX. MOV.'SBa. -Vli
ceived hercbv the Governor; GeheraWn
Jinglandsiaie mat tneuposioimy oi irpujJie
witli the United States renders increased
vigilance indispensable on the part of the
Canadian authorities.
Tokonto, Nov. 23. In the Court of Com
mon Pleas to-day, befqre, the Cljiefr Justice
and Justices Adams and William', "MrTMc
Kenzie appealed for a rule calling upon the
Attorney General to show cause why the
verdict should net ho set aside, as contrary
to law and the evidence, and a new "trial be
had in the cac of the Queen vs. Steven,
one of the Fenian prisoners at present nn
dcr sentence of death in the old jail; the
grounds upon which the motion was .based
were that the indictment charged1 the pris
oner with two distinct offences, that of com
mitting one aci as a British subject as well
as an American citizen, That alleged of
fences being committed in the countv of
Wellanu" could not le tried in the eeuntVof ;
York. .
FKOM ST. I.OUXN.
Tho Stephens Wlnpr or Fenian In Mass
.Mectlngv , '
Imms. 'nr. 53. Tlio SlBnliom w!tm
01 remans weru in uium mui'iiug ai ineir
headquarters last night, and adopted resolu
tions re-affirming their confidence in Ste
phens, and condemning another movement on
Canada as wasto of blood.afldtualerialf warn
ing their brethren against appeals in behalf of
their condenied friends, Canadian prisoners,
on the ground that nothing can be done hv
time to save them, expressing the belief that
England durst not execute sentence of the
Canadian courts, hut if ishe does, their only
hope is successful retaliation, and the estab
lishment of Irish neutrality as a prompt
ind energetic oo-opcrationjwira .tneir lrisu
brothers on Irish soil. To thw ondi they,
urge immciiate-rcorganizitibn; &MJ Tofinh
ful contribulionsof money and 3mj5. t 'r
1 RV; riIE CARI.K. '
The Great Zii.stcrii An A ustrl.in JLoau.
Lokdon, Nov. 22. It is reiorbd that the
steamship Great Eastern will begirt to make
regulaV trips between New York and "BreH
earlrin March.
Th'pm U n rumor to the effect that anAlifi'
trian loan of several million pounds sterling
will soon DC placed in the market.
A Paris correspondent of the London"
Post says that the relations between England
and the United States will soon he' critical.
' A large quantity 5f arms designed for the
use oi ine remans were seizcu uumu a
Liverpool bound steamer afCork.' '
FORTRESS
i .
MOXROE.
Mr.
Davis1
Health nud Spirits' JIuch
tmproved.
Foetbess MosrtoE, Nov. 21. Parties
who' have' lately visited Mr. Davis, state that
they found him "remarkably cheerful since
the recent changes and additions made to
Ins quarters in Carroll Hall, and the re
moval of Mrs. Davis andiier sister io rooms
prepared for tliem. Mr. Davis health is
rauclr improved,'and he speaks ;very confi
dently of being released. The family is
visited constantly by relatives and friends
from the South, and packages 'bfi. present
are frequently received.'
Important. Paris I)I.s'pntchct on 3Icx'i
cnu Affalrff. '
Nmv York, Nov. 23. The Commercial's
Washington special says the Cabinet meet
ing yesterday was to, consider important dis
patches from Paris, on Mexican affairs. Dis
patches were immediately forwarded to Gen.
Sherman and Minister CampTell via .New
Orleans. Bjs understood that the dispatches
from Paris considerably complicates the
Mexican question, and may lead to the .most,
important) results.
The President will indorse in his message
a plan submitted by the Secretary of the
Treasury for a return to specie payment
,The Conservative Army and Navy Union,
at their meeting last night, after a warm dis
cussion, passed by a two-third vote, a series
of resolutions that the proposed Constitu
tional Amendment ought'to bi rejected, and
that in the judgment of this organization it
is clearly ?ihe duty of'the Conservative press
throughout the country to appeal to the
Northern and Southern States to extend
suffrage td thes-negro orfsuch qualified basis
as may be proper ana just.
: Ojieratlous of n Swindler.,
New York, Nov. 23. A World's Detroit
special says: It has transpired here that a
prominent ana oid"establislied drug House
in New York hxs been made the victim of
several just such swindles, within the past
few months, as that which has been discov
ered in Boston. In the last swindle, or
attempt upon the New York firm, the party
not only bought goods in the city, but or
dered further shipments at almost every
point of his. route to the West, thus running
up4i bill tor thousands ot dollars, wnicu
but for the sharpness of the firm in follow
ing un the, good?, would have, been, lost as
was thousands in other cases preceding it
The obiect was -to get thegoodssoId quickly,
pocket the proceeds and decamp; in other
woras, li was to oei seconu cuuiuu ui irni
Boston gamer
Another Philadelphia Sensation Re
port. i PiuiADELrjiiA, Nov. 23. The Bulletin
.publidies a Washington -dispatch which
jstafes that the President, after mature delib
eration, has decided to abandon his opposi
tion to Congress. He will set forth fully in
his" message the TeasOns inducing" bira to
take this step. Letters have been addressed
to leading Republican Senators aud Repre
sentatives in regard to the matter.
Political
Schemes or
I cals.
Missouri Rad-
St. Louis, Nov. 23. The Evening News
to-day says: Gov. Yletcher, Hon. B. Gratz
Brown, Hon. Henry T. Blow, and other
prominent Radicals, have inaugurated a
movement in this city havinj for its object
the rejection Ijy the Legislature of the Con
gressional 'donsliiuubnalmendnienujl aojl
amendments to the Slate constitution, so as
to abrogate the "disfranchisement of Rebels,
and substitute therefor negro suffrage.
Tires.
Y., Nov.
O.SWEGO,
N.
23. About half-
past two o'clock this morning
out in tho Casement of a meat store oh -West
Seneca street, occupied by A. H. Wilcox.
Eight stores were destroyed. Tho loss is
heavy, and cannot be estimated.
Uil Uity, Pa., JNov. -J. fehicrk iler ad-
den & Co1
's. refinery, was, destroyed ly f
ling. ' L6ss $10,000: ' Partially':
fire
this mornin
in-
surcd
Compcnsatiiin ' to Eoyal Slaveholders.
! Baltimore, Nov. 23 Secretary Stanton
jhas appointed ' Col. W. IT. Stewart, W.
rnnn ami t asiuiigiuu a., -uiutr, civil
commissioners to award compensation to
iloyal slaveholders of Maryland, whose
.slaves were drafted into the army during
the war. This commission is created under
an act of Congress passed last session.
Distribution, of Arms in Canada.
TotwSrt),! N6v.'23.Sevehteen thousand
stand of arms, breech loaders, purchased by
the trovcrnment for tha volunteers are now
jDeing alsiriUUieu -among- uiucreni. ariuiery
i " , j'jrr . .jilt- J
and cavalry corps oi me l-rovince.
. i4;Xtivcr and Weather.,- c. ,
Cixcixnati. Nov. 23. The river has
ifallen eight inches. There .are twenty-fiv;o.j
ieet two mcnea in me uiiuiiiiui,
PrrrsBCBcr, Nov. 23-riRiver six feet six
inches and falling. Weather cloudy and
damp. " , . '
I'orcljrii MarhctH.
LiVEKPOOt, Nov. 22. The market for
otton opened firmer, with Uielprospect of a
day'siale of 13,00Q.bales4- prices, IioweYery,
arcrUnchanged'; nriddlihg,up!ands,T4.-! w
Breadstuffa are firmer; corn 38s. 9d t j
Londox, Nov. 23. The market for jn6ney
is easy, and consols are quoted at 9Q,.for
r i i , n.. i. l
bmoney. f
g The'following are the opening rates' fori
! American, securities '.. Erie,- 60 ; Illinois
Central78J ; United States 5-20s,1701... t
THE FRANCHISE' LAW.
Important X.egal
at I kill M
Document.
j unci: cooper -HEcisio
'
Enw
The
Declared
Unconstitutional
From the JIurfreciboro Monitor, Xov. '2U
B. F.ltidlcy ti. Freeman Sherbrooke.Mandnuiu;
; ' The Court in tins case iSnds'itself called to1
.r. L. aTj
p:uu upuii uic must. iLuiiunuui point wnicu
'i-i-. i i .a i . , I .
can wussiuiY u uuuiiiieu io a tuuiciai in-
bunaL.Jtppujd notarise under the English)
system, where varliament is without the re
straint of a written constitution, and where
such constitutional provisions as are sup
posed to exi t, rest only in the bosom of the
very body which can alone, announce and
.construe them. 'And. in entering upon the
discussion of the .questions submitted to the
'Court in ttfig caseit may be' premised that
these questions.do hot in the least aflect the
validity of the present State? Government.
'The Court recognizes' iho p'rinciple that the
y udiciary is "subordinate to .the political pow
er, and has nothing to do with its rightful
ness or wrongfulness.-. it accepts the au
thority of the Government behind which it
holds office as an ultimateact-behind which
;it cacnol "go., Until changedlby .the people,
lit is entitled lb, and should receive our obe
dience. - Jtrtnay also he- added, that in.de
termining tlie grave- and i'niport'ant llues-
eration growing out-of the policy- or impoli-
,cy, tlio wisdom or, want oi ;wisdom m the
passage of the law brought in "review.
.Whether it is fraught with, blessings to us as
;a people, or comes laden with disorder, are
not question-r within "the-jurisdiction" of
courts of justice; .such questipnsmustbe left
to the decision ot another lorum. e have
.only to deal with the question, whether the
Haw. wuica-w3,artt.caiied upon tto decide, ,ls'l
an conlorraitv with the lundaraental law.
which the-Government has prescribed as a
guide for its several departments. The very
iconstitutioujtself, .under which ,all , depart-
mcius aci, may ,imuuruveiy require me
courts, to inquire and see whether one de
partment has thus conformed its action, to
this constitution. And il atished ot this
fact; this Court cannot hesitate itr the donrse
it will pursue.
It is insisted by the relator in thin case
xhat the executions -and Qualifications of
the "elective-franchise, ' impaired bythe "act
of the present General Assembly of the
State of Tennessee, knojvn as the "fran
chise act," are unconstitutional and void,
and that: although, he'mayr fall withintthe
number or class thereinDecified, still it is
the duty of the" respondent as register of
'.votes of the county of Rutherford, to regis
ter him as a voter, -and issue to him a cer
tificate, as required by the duties of his
office, and the respondent having failed to!
perforin said duties, this Court is applied 10,'
in order to compel by proper process t he
issuance of said certificate to him. It is:
.admitted by tho pleadings, .thd conceded in
ithe argument of this case, that so'niuch of
the act Of assembly as creates the office of
reffLter'b'f votesJiis consfitutionarand valiu.'
.It ii alw; .conceded that- CKe, r&"p6ifdent i
;thc legal and duly (piahhed ofucer under
said act At this point in the investigation
and for the present argument, the Court ac
cepts these admissions and coucesMons to
be truejstlie Court!beinc; fully afisfied 'Cpth
from'reason and W authority, tKat one Frart
of JinJict of assembly ma s.be'cdnstitlitional
,and another part of the same act unconsti
tutional. The Court is also satisfied, that
independent of a spTclal grant of power in
the constitution, to the Legislature to create
such an office, that the Legislature posses'ses
it, by virtue of its general powers as a Legis
lature. But then.Ls. any part of this act of
assembly unconstitutional and therefore
void ? This is a question at all times one
of much delicacy, and which shblfldf,be
weighed well before being decided in the
affirmative, it should seldom if ever be so
decided in a doubtful case. Whenever it is
, 'i ; j: --..i-1.1 i iVi t.i J.
.Clear, anu inuisuuuiuij ugiuusk me mnua
Imental law, and the court is thereby im
pelled to so decide it it would be unworthy
of its station, could.it be unmindful of the
solemn obligation which that station im
poses. But it is not on slight implication
and mere conjecture that the Legislature is
to be .-pronounced fo have.'transcended' its
powers, and its acts,to be considered as void.
"The opposition between the constitution and
the law should be such that the judge feels a
clear anu strong conviction oi ineir incom
patibility with each otht'r. (C Cranch,
:331.)
In determining this question", we assnaie
as a premise which cannot be controverted
that, the amendment of the constitution un
der which this aet is sought to be established
and held valid, was'lhcact'of the Sovereign
people ot the state ot iennessee, that the
Legislature ltifchalsealie act, if theyjfaa
not forfeited their right to be called a Legis
lature, were invested with full powers to
carry into eltcct the.amendoientof the Cons
Fiuuiiun which nau uecn auupicu anu rati
fied by the people .Ufiider this aumptipn,
the question for our determination is nar
rowed down to an examination as to what
were the ijowew delegated tp-them An the
a'mndments;' And have thev1 in tlfe'1palK
sage ol ,the. act,, deterred ,lotrggscended
-In the first place, suppose they have con-'
ferred upon themall the powers which the
people themselves, would have were thev
assembled in convention. Have the people
themselves, the right or'pdwer (6l'eny!a
" free white man of the age of twentv-one
years, being a citizen of Ac Litel &ates,
anu a ciuzen m iueicouniy,wiiCTeinanemay
offer Kis voie, six "nionth's next; precevling
the day of election." and who has not been
convicted of an infamous crime, the privi
lege of voting ? It is provided in section
eight of the bill of rights ' that.nq freeman;
shall be disseized of his freehold, liberties or
pnvihgesj but by the judgment of his peers
or the law ,oi- me- iana.- J-uaiso provided
in section 5 of the same instrument, "that
elections shall beree.and equal,i'.and- also-
?n sption 11. "that no fx nnzl inrin l.iw sTinll
h mniip.-" The mnstitnt'nn nrAvidoa in
section 12 of article XL, "Thq declaration '
;of'right hereto prefixed is declared-to be a!
'pan oi xne constitution oi mis orate, anoiFOcr "."'" f"""- imiu
shall never "be violafe"d on any pretence
whatever. And to guard again't tfahsgfiW
ori of the high po'were we have' delegated,'
.1 . -1 .t . . ;t ? At ?il
wexieciare mat every .mmg in me uiji ot
rights contained is excepted out of the gen
eral powers of government, and shall for
ever remain in violate." r "J
"''Can anv hritrileirc n'r'lftiprlv which a miin
enjbyed under the Constitution be Abridged'
,or destrpyed, except under the provisions of
theinstrument itself? AHieh the people ii--fmblein
contention tlietnselvfel, or throngtt
itheir delegates, are th6y not -bound, by the
Constitution ? or aretli'ev thrown back into
(anarchy, and possess the same powers n'hich
tffere inherent in them before government
was ursi organized c vouia iney, in iorm-
jing a new constitution, disseize any man
i- i-i IL . -i. Tj'wt . .t - aa- .
iruui ins irecuoiu i ere iney io auciupi
itj would the not violate the fundamental
'law? In a" constitutional government is
there any higher law than the constitution
itself? Can the people themselves resume
.the 'powers which thev surrendered 'when
'.the Government was .originally formed
'.What meaning, then, shall be given td the
iections in the "declaration of rights Which
Ivre have quoted, and'td Section YL of Article
XT of the Constitution ? If the pednle them
.selves can denude a' citizen of his right?, lib
.ertiw, er privileges, in any other way than
those pointed out by the Constitution, what
guarantee has he for the protection of tttly
of them ? It Il'riot insisted' that a man can
not forfeit his liberties or his privileges.
lins may -be done mi ways pointed out in
the Constitution itself; That instrument
'points out two ways : by the judgment of
Jus peers or by the taw ol the land." What
is the judgment of his peers? Thi3 means
by the verdict of a jury. In all cases of tn
troverted facts he is entitled to this trial by
jur. jeujJic iiicuireivea cuiiuui. ue
pnye a citizen ot tills right. What is the
meaning of " law of the land?" This term
has beeirdefined by our own Suprerae'.Court
ni,many adiuuicated cases. Io make a sta
tute a law "of the land the Legislature, must
have had the constitutional power to pass it,
and it must be a general ami public law,
.equally binding upon every member of the
community. taheppardvs.Johnsoii,2 Hump,
i2S5.298). The right to life, liberty and
'property of everv individual must stand or
fajl by the same rule or law that governs
ev&y otlier member of the body politic or
land under similar circumstance'. anzant
vs.Waddei, a xerg. zou-zni. iiutiit may
be said .that the Legislature shall have no
power to pass such partial laws; but why
may not' the people themselves so alter the
jfuridamenUil law as to pirmit-the passage of
Partial lawrff l he answer is, that thcdecla
Iration of rights is made unalterable by the
,CofTetiutioii itself,.and that declares how a
"man shall be deprived of his rights, liber
iv And privileges, which shall be by the law
of the land. The question, how ever, whether
the?rigut Of the elective franchise t3 such a
riglit or privilege as cannot be taken away
fiofn ijiin, except in the. ways .-.uggested, is
onejio'. altogether free from difficuhv. The
Ubnrt is n.it fililv satisfied ?ut what the peo-
pletan ntiu-iid their organic law so as to de
ff. ...! I I I I ... .1 ..f il
piarc win) i-iiDiiui ue uic-i! kiieieuiier, mere-bv-iming-vir-soiiieho'lmibeen
votera up-
to dial jiiyi vwilhtiuUviuL-iting the,decjara
titfi 11.11 dr &lt&l&ot tlfo 3bnti
ffiituti.iu. i'ut waiving a decision of this
Yioirit are the power!" delegated io the Le
gislature bvthe amenileti- Constitution "as
amiiW mid fiilh as those possessed bv the
people inein.'O v J-ei us examine anu seo.
Tho 9th" section of 'the isclieduhvio said
anifeflduient is given a follows i "The qual
ificatioHS of voters aifd the limitation1 61' the
elective franchise may be determined by the
General Assembly which shall first assemble
under the amended; ,(?oustitution J' Does
this repeal Art. IV, Section 1, of the old Con
stitution? It does not do so in words. Does it
Ho so" by implication,? , If the two can stand
together, will not every rule of construction
forbi'd that the old shall be repealed Or ab
rogated by the new ? For the new provision,
to have tnc effect of repealing' the old, must
not Hie repeal be clear and explicit or must
It no'bc of such a character that the two ean
not stand together. Now, to give the sec
tion qooted from the schedule of the amend
ments the effect to repeal Art. IV, Section I
of tfjUonstitution, if nibsf vest In the Le
gislature the full power and authority tode
clarewhc shall be voters hereafter in this
Statef Does this mean that the repeal of all
laws,&id.can3tittjtiopal. provisions authoriz
ing jSgrson's to voie.'aud' give power to the
Legislature to make such laws ? What may
the Lc-giniuture determine under this -power?
The power must be strictly construed. They
have co power to amend, but to determine
' under the Constitution a3" amended, the
qualification of voters and the limitation of
termine under the Constitution, and are not
authorized to amend the instrument iUeif,
can thy so determine as to repeal or destroy
Art I, Section 1st of the Constitution, that
all josver is inherent in the people? llaf,
not full scope.be given -to the power granted
in these amendments; without a repeal of
the other provisions in the Constitution
touching tjie righ to vote Wh&t were the
amendments proposed by the coirventlon and
adopted by the people?-
1. Thatslaycry and Jnvoluntar strvitudeJ
except as a punishment f jrSrim';, sKldliM
uuuiiHueu.
. 2. The Legislature shall make no law re
cognizing the right of property in .man
" ''Abrogating Section 31, Art, II of , the"
Constitution. t Y
Thce amend mentsj if ratified by the peo
ple, WQuldiemancipateaJarge class who Jiad
beforolhat time been slaves. ' These persons
would necessarily be. .in our midst Was
not thiS power we are considering given to
the Legislature that' they might provide for
the enfranchising of these persons thus made
free? And would not this afford ample
scope for the exercise of the power to fix
Ihe qualification of voters? And they might
oesIreHo limit the elective franchise as to
this class of persons to some intellectual or
properly qualification. Tp thus limit the
pdweF delegated 'to the Legislature" isin ac
cordance "with' fairVrules' of construction.
Does not the context bear out this interpre
tation! Under what were they to exercise"
the power delegated? : Under the amended'
Constitntion? Did the' amendments in any
way refer to any other class of persons than
those who were made free bv them.' as it
necessarv that mepower to oeieriuine mcir
right to. tlie elective franchise should rest
somewhere? Was, itiat.alljaecessarfthat the
the elect
ive" franchise ; asto Other'rJerins?
If thq convention cr people had intended to
givo io mem me power ot disiranciusm
Hiose already clothed with the right to vote,
would they not have been more explicit in
con lerrjng the power? By thus ,construin
me pHwer uetegaieo to me i,egiiuture we
lire ub'e make each and every part of the
XJiinatitiuion stand. Any other conMrnciioi',
me one nas to give way to the oilier., iue
(."otirt ls-therefore content to hbld (Jiai the
yuwer delegated to the Legislature bv tfee
niciended,, Constitution does not -vest thu
with the pqwer to determine the oualitka
tiijiis of voters in all cases, but only r far as
me ireedmen are concerned. If the Court is
Correct in the determination of the foregoing
proposition, men it necessaniy follows that
the Legit-jaturu Jsave transcended their pow-
prs in the passage of the aet under considera
tion, so far as thev have attempted to alter
me quauueauon tp vote oi inose who were
already voters tinder the old Constitution.
and to.that extent Hie. act is void, ami would
pot excuse the respondent from giving the
nci; psary certificate to the relator.
But there is another question in the cae.
which I feel bound to examine. It- is one
which might; .have arisen under-tlie consti
tutional government of some of our sister
States, but it is no. great compliment to thnt
"o say that it ha? never yej occurred m anl
pt tueni. ihe demoralization ot civil war
and the disorganization incidentto that nuyt
dangerous period, immediately followicg.
When thettrongarm of the military power
hxs been withdrawn, and the more reliable,
if not stronger arm of the law has not yet
resumed its sway, were required to.produce
ihe state of f;";ts upon which such a question
can alone be raised. The did landmarks are,
at such. a period, swept away or lost sight of,
and new one? have hot yet been created.
Now, for the first time in the constitutional
History of this country, the legislative de
partment of the General Governmentand of
our own State, have not been content to fol
low in the safe line of precedent, but have
been induced from a conviction qf dutv,. this
Court is bound to presume, to resort to the
CromwcHian plan of purgjng their own
bodies of members obnoxious to the majori
ty. If a sense of duty has compelled the
two Houses of the General Assembly -jf the
State to exclude some cf the members of
each, dulv returned bv the electors, a sense
of duty equally constrains this Court to ex
amine into the constitutionality of the act,
and to ascertain whether, if unconstitution
al, the fact can be noticed in this case.
Ihe facts whiah-raise-tHis.aueetion are as
follows: - si
The General Assembly of the State hav-
ing'certain measures' before it 'in relation to
the elective franchise, a portion of the House
of Bepresentatives, sufficient in number to
reduce that body below a quorum, thought
it was their . ddty-tdreSisn their seats in Order
to prevent the hasty passage of so important
a measure, and to ascertain bv a vote th?
wishes of their constituents. To fill the va
cancies thus created, his Excellency the
Governor of the State, as in duty bound.
issued ins proclamation to the proper oth
cers directing elections to be held ir, t?-.e
several districts accordir.g to law. These
elections we're accordingly beW, arid new
members elected, amng whom, ,liowevr4
were a number aiteen, we believe who
had resigned their- scats as aforesaid. When
tliese members, with tlieir ceitificates fa due
form, went to Nashville t.i lake their seats.
the House of EenresenUtines, or, rather,
those memoere o: tne iionse who had. not
resigned, and one or tiro members whom
the selected from . the new comers, re
to allow tnem to tase their seats, but iurni-
ally , ejected athem. tp the number of fifteen
in the House and two in the Senate. This
wa confessedly" doae,not because there was
any in formality in the elections, nor in the
certificates- of the prcner officers, nur be
cause the applicants were not possessed of
all tlie constitutiun;:! qualifications, iree
from all the constitutional disqualifications,
and able and willing to comply with
all the con!:jtional re :n".rements, bat
simply because they had directly
orimpliedly assented to the movement which
had left the House without a quorum, and
thereby, in tlie opinion of those who refused
tp join in this action, had disqualified them
selves frpia eligibility to seats in the House.
This was'the sole ground uoon which their
iorcibie exclusion, from the body to which
they had been sent br the people, was put
i... .i. .1 t it." '..y
uv Liie uumiuauL maioriLV. in inp npirnt
about the same time, the Hon. Cave Johnson,
a recently elected member to that body, iras
excluded upon 'another ground. It was not
pretended" lhat, he had not been elected, duly
andles-allv t& Sll the vncanov: nor wis it
denied that life HieT all the necessarv qualifi
cations, but Jnefceoate chose to refuse him'
admittance because t3 sympathies had been
with the tooiyn ir the late rebellion, in
both cases, that is to v, in the case of the
excluded members, from the House, and id
the case ofth'e excluded member from the
Senate, each of thbse bedics chose to add ti
the qualifications or disqualificauons mai
by the Constitution, others of its own framing!
Was this right? If not, wa.s the body from
which they Were thns wrongfully excluded
any longer a,cunstitutional General Assem
bly touch are the grave points which this
Court is called upon to decide.
The requirements necessary to eligibility
to the General Assembly, as prescribed bv
the Constitution, are found in Art. II. Sec
tions 9 and 10 of that instrument, and tlfe
Constitutional disqualifications in Sections
25 and 2G, of the same article. It is not
necessary to quote those sections, nor tadetail
their provisions, for it is not' pretended that
they have anything to do with the aclion
taken by the two Houses in the cases before
us. JNoris it pretended that there is" any
thing in the amendment to the Constitution,
nor in the law of the land, directly justifying
the exclusion. But it is contended that eaca
House of the General Assembly has the ex
elusive right to judge df the qualification of
its members, and its decision cannot be re
vised.
The Constitution Article II , Section 11
certainly provides that : "The Senate and
House of Ilepresentatives, when assembled,
shall each be judges of the quali
fication and election of its members." Tlie
Constitution mut, like every other writing,
be construed ai . a hole, not by piecemeal,
(Mosely vs.-State, 7 MJ, 135) and when we
look to it as c, whole, the obvious meaning
of the clause in qnesik ir is Unit each lloiwe
shall be theJudce' ?of the contfthtfUmalimull-
Uheh - idecli6? W'TBwe' re quetioni winch I
they may properly decide, for every mem-,
bur h interested in having them properly:
decided, the decision being equally binding .
upon alb" To that extent each House may
be admitted to be, .when acting in good faith,
the . sepreme atbher, and. its decision, in a
given case, although it might - appeaxstci, s
others to be erroneous, cannot be revisedr
But it is altogether adififerent question wnen
ban of these Houses goes beyond the plain
provisions of the Constitution, and under-.
takes te-require an additional, qualification,-
o; to establish a new disqualification. Ire -such
case, each member of the Iloose has no t
longer a common interest with every other,?
audatMnducement to do right; and theHouse
itseif ceases to-be a constitutional jude, and
becomes a prosecutor of an individual, or an .
actor against the right of thejelectors.
The people have rights m .well as .
the two Houses. They have the-.exr
elusive right to judge of the. qualir
fication of ? the members jvhom they,
chose to send to the General Assembly, sub
ject only to" the provisions of the Constitti-r'
.: ... .,.:. .i i tr
uuii. jl nt; jciituua, miiu, lue wurai UUar-
acte:, the intellectual qualifications of the
members are for the people, not the Legis
lature. This jioint was solemnly decided
after years of straggle, by the Parliament of
Grea.'. Britain, in the .famons case of Johni
WLkus, That notorious person was; guilty
not only of libel, oil the King, one ol the co-.
ordinato powers -of the British Govorninent, -but
upon morality. In 17C8,he was returned.,
as a member of Parliament from the county
6f Middlesex without . opposition, but the
House declared him incapable of sitting
Three other elections took place with the
same result, and, at last, the House deglared
Colonel Luttrell, Wilkes' opponent, elected,
uiougn Jie nau received only three hundred
votes in the thousand cast, on the ground
that the votes for Wilkes were veid fromhifet.
incapacity to serve. This measure aranswd
intense indignation throughout the country.
The contest between Wilkes and the Minis
try became a contest for the preservation of
the rights of the people. But in 17S2, when
passion had subsided and sober reason onee
more prevailed, the House voted that the
resolution by which Wilkta had been der .
dared incapable of being re-eleated, should
be expunged, " it being suuveriveof tboV
rights of the whole body of electors in tha F
Kingdom."
"It would seem but fair reasoningf&aja
Judge Story (Com. an const, s02o, Ptjpon'
the planest principles of interpretation," that".4
when the Constitution established certain
qualifications as necessary for office, it meent .
to excludeall others as prerevnisites. From"
the very nature-, of such a provision the a
firmatiou of these qualifications would seem
to imply a negative of all others. A pow
er to add' new qualifications is certainly ' '
equivalent to a power to vary them. It addj.
to die aggregate what changes, the nature of
former requisites." The dominant majority
might require the member to be f a certain
religious faith, or to belong to a partftplar
trade or calling, or to possess a specific men
tal, moral or property .qualificationj. "In
short," to. again use Judge Story's language
(S. 62), there is bo end to tha variety of
qualifications which, without insisting Hpdn'
extravagant cases, may be imagined." On-,
der the reasonable qualifications established '
Lby the Constitutes, the door of this part of-t
tee Government, as wa3 remarked by the
Federalist, No. 52, in relation to the Federal"!
Constitution, 13 open to merit of every de
scriptlon; whether native or adopted, wfceth- -er
young or oid, and without regard to poy-
erty or wealth, or any particular profession
of religious faith. But with an unlimited
right in each House to add to these 'qualifi
cations, there ijio telfflig to whafe extravo- -gunt
lengths tbe spirit of faction raayinduce
a dominant majority to go for the' purpose
of stifling papular will and relaitringpower.
As well, it peems to us, might eaoh House
establish a Procrustean bed for the regula
tion of the physical organization of its mem
bers as to lay dewri rules of mental, mora)
or political conduct It is enoogh to say
that the Constitution fixes the qualified-
tions, leaving the people the free and unre
strained choice of their Representatives .in -all
other respects, and to refiwe to admit
such Representative?, when duly elected; is
to strike at the fundamental principles of
our republican institutions. My opinion)
tlerefore, olearjy is that neither House of
the General Assembly hadSny- aHtherit.
under the Constitution or Jawswf the land,,
for the exclusion of the several members as
above drfailfd. it hat theB was the eiHoi
of suoh ualaw&l exelueion ? s 4
'-The legislative ablhorily of this Stete
bhall be vested ia a Uoaewl ; AsgembJy,
which shall qpaoiot of a Senate and House of
Representative, 4oiA (fepfntfest on lhepplm"
(Const, Art. 2, Sec. 3.) To carry out this
provision, the Constitution then provides-
S&etion 4 for a decennial enumeration, of
the qualified voteretand anapportionmentjofi.
the Representatives in the General Assem
jily. It then provides that the Bomber of
(said Representatives shall, at the several lie-'
rjUA-)l laaKicg .ue enuiuerauun, oe appor
tfned among U:e several counties or districts
aocording to the number of qualified vbters
in each, not to exceeil a certain number, and
with an express proviso, " thai ay county
hkraer to-tbird of the ratio sIuhI be 'oa
st !ki to one&ineaaber. In like mannerjhe-
nuaib'er of Senaton shall, at thf severajpe- '
riods of making ihe enumorStiefl, beyippdr
ticned among ihe several counties or, dis
tricts according kthe number of qiwlifiod,
eiecto-s in each, not to exceed one-third of
the number of Representatives; and with the f .
express proviso : " In apportioning theSon
ators among the difierent counties, tfie lrae-j
lion that may bo lost byany county or count .
tiej, in the apportionment cf the mem- -berpfthe
House of Representatives, slfdll
be made up to such county or counties inlfhe
Senate as near as may be practicable.'!'
The provisions leave no doubt that the.,
framers of our Constitution intended that tne.
General Assembly hOuld he compcKeof
Representatives elected by tho 'people' from
the several counties and districts all over ithe -State.
They have sedulously-provided for
the representatfoti"orfracti6rl3if countioa
eitherin the'House or Senate; They could
nothave shown more explicitly their delib-.
erate intention that the General Assembly,
should represent tlie wtoleeqpje upon,
.whom it ia cTependejll. IVjfai. Jnever n"
tended that a part of tne State might he
aloue represrented, or that a'dbminadt nia-
jtfeity might exclude a, minority for anr
Concluded on Eighth i'nge. i,