Port Tobacco times, and Charles County advertiser. (Port Tobacco, Md.) 1845-1898, 1846-02-26

the plaintiff to prove express malice; malice is i'm
piled in law.
''Itis finally urged, that free negro or mulatto
IS not citizen within the meaning Of the constitu-
lon and laws OF the United States, and Of the State
OF pennsylvania, and, therefore, is not entitled to
the right Of suffrage. This, the court regard as the
most important point in the cause; and the question:
as 1t IS avoWod on the part Of the plaintiff which
this suit was brought to settle.
| awe know OF no expression in the constitution or
laws of the United States, in the constitution or
laws ofthe State of Pennsylvania which can local
lily be construed to prohibit free negroes and nulat-
toes, who are otherwise qualified, from exercising
the rights of an eector. The preamble to the act
for the gradual abolition of slavery, passed on the
lst of March 1880, breathes spirit of piety and
patriotism, and fully indicates an intention in the
legislature to make the man Of color freeman.
GAS there is no dispute between the parties, in
relation to the facts in this case, and as the opinion
of the court, upon the points Of law, are decidedly
with the plaintiff the verdict of the jury must be in
his favor, &C."
To this charge of the court, the counsel for the
defendants below, excepted; and assigned the same
for error in the court above.
lst. That the court erred, in charging the Jury,
that unnecessary for the plaintiff to prove ex-
press malice, in order to entltle him to recover; that
malice was implied in law.
! I'd. That the court erred, in charging the jury
that there was no provision in the constitution or
laws Of this State, which can be legally construed
to prohibit free negroes, mulattoes, who are 9th
erwise qualified, from exercising the rights of an
elector.
The decision Of the supreme court on the ques-
tion involved in the second error rendered the ex-
preston Of an opinion unnecessary in respect to the
first
Wright and COnynghan,, for plaintiffs in error,
cited to the first error, East $685. note page $685.
II Johns Rep. ia; Con. 597; Serg. g. ROaCIe, 8;
o o d.
support of the second error, CTandaIs Case 10 CON-
399; KentS Com. 258, note; Lit. Ky. Rep. 933;
Constitution Of U. S., art 4, sect. g Sergeant on
Const. La1U 1913.
Kidder and Greenough, for defendants in error,
cited, as to the first error Id. Raym. 99S; Mass
$50; Constitution Of Penn. art 8, sect |; 4bokition
act of 1880; 2 Kent's Com. 25S; Sergeant on Const
Lac 993; YaHeL's Lao Of Nations, 1861; Stroud,s
P,ird. 9S1. ~.
The opinion of the Court was delivered by
l. GIBSON, G. J.-This record rises, second time,
the only question on phrase in the constitution,
which has occurred since its adoption; and however
partizans may have disputed the wisdom of its pro-
visions, no has disputed the clearness and pre-
csion gifts phraseology. We have often been cal
led upon to enforce its limitations of legislative pow
err; but the business ofinterpretaton incidental
and the difficulty not in the diction, but in the
uncertainty of the act to which it to be applied
/ IL
has arisen second time. 1t would be more accu-
rate to say the same question has arisen the second
time About the year 1875, as | have it from James
Gibson Esquire, of the Philadelphia bar, the very
point before ruledby the high court of errors
and appeals, against the right of negro suffrage
Mr. Gibson declined an invitation to be concered in
the argument, and therefore, has no memorandum
of the cause to direct us to the record. have had
the office searched for it; but the papers had fallen
into such disorder as to preclude hope of its dis
covery. Most of them were imperfect, and many
were lost or misplaced. But Mr.. Gbson's remem-
brance of the decision is perfect and entitled TO full
confidence. That the case was not reported, is
probably owing to the fact that the Judges gave no
reasons; and the omission is the to be regret
ted as report oft would have put the question at
rest and prevented much unpleasant excitement
Still the Judgment is not the less authoritative a
precedent Standing the court of last resort that
tribunal bore the same relation to this court, that
the supreme court does to the common pleas; and
as its authority could not be questioned then, it
cannot be questioned now. The point, therefore,
is not open to discussion on original grounds.
Fl But the omission of the judges, renders it proper
to show that their decision was founded in the true
principles of the constitution. In the first section
of the third article, it is declared, that sin elections
BY the citizens every FREEMAN of the age oftwen-
ty-one wears, having resided in the State two years
before the election, and having within that time
paid State county taX," shall enjoy the rights
! of an elector. Now the argument Of those who
assert the claim Of the coored population is that
negro is a man; and, when not held to involuntary
service that he is free; consequently that he is
o freeman; and if freeman IN the common ascepta-
ton of the term, then freeman In every accepta-
ton OF it. This pithy and syllogstic sentence COM
prises the whole argument which, however eIabo-
rated perpetuay gets back to the point from which
- no nf fot
Y the term freedom signifies nothing but exemption
# from involuntary service; and that it has not le
S gal Specification more specific. The freedom of a
e municipal corporation, or body polite, implies fel-
IS Iowship and participation of corporate rights; but
e an inhabitant of an incorporated place, who is
neither servant nor slave, though boundhy its laws,
, may be no freeman in respect of its government
! It has indeed been affirmed by text writers, that
habitance and paying scot and lot, give nciden-
tai right to corporate freedom; but the courts have
J., refused to acknoH ledge 1t even when the charter
v seemed to imply it; and, when not derived from
= prescription or grant, it has been deemed quaf-
y cation merely, and title WiIcOT chap. 3, p.
1856 Let it not be said that the legal meaning of
: the word freemen is peculiar to British corpora
7, TONS and that have it not in the charters and
n constitutions of Pennsylvania.
J. The laws agreed upon in England, in May 1852,
IL use the word in this specific sense, and even fur
II nish definition of it. every inhabltant OF the
said province that is shall be purchaser OF one
hundred acres of land or upwards, his heirs and as
:, signs and every person who shall have paid his
passage and shall have taken up one hundred acres
= of land at penny an acre, and have cultivated ten
2 acres thereof; and every person that hath been
servant or bondsman and is free by his service,