The weekly Mississippian. [volume] (Jackson, Miss.) 1859-1864, 1859-07-20

and to provisions by deed will, &c., whether mad
in or out of this State for the removal of slaves
) | be emaneipated elsewhere. It merely condense
the proyisions of the acts of 1922 and 1872 witt
the addition of incorporating the rule in the cas-
i in the case of Mahorner vs. Hooe, extending tn
prohi btion to wills made out of this State. Thi
is plainly the whole scope OF the act, It has no
the least reference to the removal Of slaves by thu
owner to another State and his emancipation
Of them there for the plain reason that the Legis
lature had no power to make such an act void; and
the folly Of making such an effort should not b
imputed to them. But IL the act extended in it
terms to such cases, 1t could not be construed tc
have retrospective effect TO destroy rights existing
before Its passage, as in thiscase. Murray Va. Glib
son Is How. Gu. 81 S2l. Garrett VS.. Beaumont
"a, Miss. ST.
| Thus We have before US the policy of this State
upon the subject Of emanepations Of slaves In
other States, as it has been declared and defined
by our statutes and expounded by this Court. We
that the whole scope Of these statutes to pro-
hibit emanepations of slaves in this State by deed
or win, to take effect here or in other States, and
enaneipations made in other States to be exercised
here; and prohibitions against free negroes Of 9TH
er States coming into this State and that so far
the Legislature has touched the subject Of eman-
cpation of slaves made in other States and accord
ing to their laws, BY owners who have removed
them from this State bona dde for that purpose,
such emancipations are recognized as valid. Il is
needless TO inquire into the reason of this policy.
It is sueent that the Legislature has established
n
allow within her limits the exercise of rights con-
trary to her laws and policy; but We must look to
herlaEs and public declarations of policy as they
are Iadscsafty kRoBR to us TO see what that policy
Is. The Legislature has notthoughtf to interdict
the enjoyment Of any civilright of a free person
Of color residing in another State and manumitted
according to the laws of that State, except TO pro-
hibit such persons from coming to, and remaining
1 in, this State.
And when we look at the extent of this policy
as expounded and settled by the decisions of this
Court, We that in every case in which the ques
ton has been presented to this Court, emancipa-
4 tons by deed or other legal act, made in other
States, bona fde and not for the purpose of eva
ding our law by the return Of the saye here, have
been held to be valid and not in contrayention of
our laws and policy; and accordingly it has been
invariably held that free persons of color so manu-
mitted In other States, might sue and maintain
their legal rights in our Courts. sz.=s
Such being the policy of the State upon the sub
ject as defined by Legislative acts and settled by
Judicial construction Of these acts it appears to
that the decision of the majority of the Court is
1st = ouefkrR nst1e OF Iaso rs settled and recog-
nized in every case in which it has come under the
consideration of this Court, upon question at
least douLtful apart from the decisions-and I'd,
to declare policy for the Stste,which the Legsla
ture in acting upon the subject has not established
4 and which is firmly settled-if any thing can be
BY this Court-not to be within the policy estab-
lished BY the Legisature-thus unsettling the law
4
the Court the power of the Legislature to establish
and declare public policy upon most important
subject-setting precedent which, if followed,
must PROSTATE the character and usefulness of this
Court by rendering the rules held by it calculating
and uncertain, and invading the legitimate pro-
vince Of the Legislature to institute or extend
matter Of public policy.
l have always considered that, except perhaps in
questions involving construction of the C0nstitu-
ton, We were bound to adhere to rules firmly set
tied and repeatedly sanctioned and re-afirmed by
this Court especially those affecting private rights
But il we can unsettle rule of property and pri-
vate right declared reiterated and established, as
the rights here involved have been, no question
may be considered as settled, and one can feel
secure in the rights which he has acquired acting
upon the rules settled by this Court. All security
for private right is destroyed where it depends up
on questions which have once been the subject of
dispute, but have been settled by this Court. The
individual opinion of the judges, for the time be-
ing, and not the law settled, becomes the rule
of action. No man in this State, out of il, and
having transactions with citizens or rights in
it, will feel certain that he holds his property or
his right upon firm and settled rule of Law. We
are reduced to that "miserable servitude where
the law is vague and uncertain" The conserva-
tive character Of the Court is broken down; and all
confidence In the stability Of its rules is destroyed
in the minds Of all good citizens. Such result is,
in my judgment scarcely less deplorabe than abo-
Iitionism. .l=
Not less dangerous is the doctrine, that We have
what the Legislature has plainly extended it. The
safe and wise rule is, that we must conclude that
the Legislature, to whom the power is committed
by our system Of government, has extended the
policy as far as they thoughtit proper and expedi
emit. Our Office is to sustain and enforce that poll
ey SO far Is the Legislature has declared it, and
further; and in the Of Mahorner vs. Hooe, the
Court says-"Courts in this country have NOS the |
power to declare policy except as it indica-
ted by direct legislation, or result from the spirit
and objects Of statutes" The same rule has been
constantly and firmly declared in the construction
Of our statutes Of frauds, and of limitations, and
other general statutes. And can see nothing in
the subject of slavery and negro emancipation
which makes it an exception to this salutary rule,
or enlarges the powers of this Court.
If this rule be eorrect-and il has the universal
sanction Of the wisest sages Of the law-how can 1
we derive from our statutes, the policy of denying
to free persons Of color legally free in other States
all civil rights whatever, and say that such poll
ey is comprehended in them? If we look to their /
terms, We find that no such prohibitory policy is /
included in their provisions We find that the 1
subject of the rights of such persons who have /
been removed to, and legally manumitted in other
States and do not come into this State is absolute
ly untouched by Legislative interdict. Every en-
actment of statutes in relation to the emanci-
patton Of slaves in other States, and prohibiting
their coming to, or residing in this State, may be
carried out and yet the free negro in another State
may sue for his right of person of property here
BY what implication or by what reason indicated
~ .hsss st.faass. this right - - Isil.ias al
And how is it possible that such right can come
within the mischief provided against by these
statutesT If it was the great mischief supposed,
It cannot have escaped the attention of the Legis
lature, while they were so frequently legisating
upon the general subject of emancipated slaves |
and the evils TO be apprehended from their condi-
ton; and as they have laid interdict upon such
rights, it is to be presumed that they were not in
tended to be embraced in the legislation and were
not intended to be prohibited.
What power, then, has this Court to take the |
step of saying as the Legislature has failed to
provide for such an evi-yet that il is an evil to
our domestic Institutions, whose genius is ayerse
to the emancipation of slaves; and therefore, we |
will extend the principle Of our institutions and
our policy beyond what the Constitution and laws |
have interdicted, and debar the free negro of |
another State Of all rights Of person and CT proper
ty in this State What is this but judicial legis-
lation Of the most decided character? True, the |
Legislature has not thought fit to exercise its pow
or, which properly pertained to it, upon the doubt
full and delicate subject of debarring the inhabi-
tants Of the co-States Of this confederacy
ious rs they are to US a class of population-of
the remedies for the enforcement Of their legal
rights here which they may enjoy without coming
consider such o right inconsistent with correct
opinions as to the policy Of negro emancipation;
hold that negro emancipation elsewhere is contra
~ to the principle of our domestic policy; and |
supply the defect in legislation by declaring such
rights illegal and contrary to policy and inst-
tutions Upon the same principle-in the case of |
. subject Of Great Britain in Canada-free negro
though he might be-Whose property was unlaW- /
fully taken and brought into this State by one Of
our cltizens-this Court might proceed to declare,
that no remedy was to be allowed to such British
subject BY the laws OF the land, because he was
the subject of monarchial government and the
policy Of our institutions is against monarchy.
If we have the right to declare and establish q
policy for the State upon this subject and under
the circumstance Of the case thea 10 appears to me
that the power of this Court over matters Of pub
lie policy is limited only by its discretion. 1t be-
comes the province OF this Court TO make laws, and
not merely TO declare what the law NJ and there is
Fery little need FOR the Of the State to
pass any furtner general AVS or 70 establish any
'urther public policy. Ihe Legislature has al
ready passed enactments 70 limited extent, and
70 far rs they tnougnt the public interest required
lpon most o. tne sapgects OF popnc concern; and
nese VII furnish the germs Of judicial legislation
Fhich tnls Court can enlarge and expand accord
ng TO i9 1dea o. pubic policy and me character
= our sa1ullons, ana as, ~ new Of the advance
nent Of science ana OF the iignt Of new theories,
ne pubic welfare may, IN tnelr Jndgment require
u appears 70 me that sne doctrine which lays ut
ne foundation OF the opinion OF the majority OF
ne Court Is wrong in principle and dangerous in |
practice g matter OF judicial action.
Our policy upon the subject Of slavery and slave
n IN principle and In action, q DO
nestle policy Ihe Legislature makes laws Tor the
,roteeton OF slavery ana OF property In slaves In
DIS otase, ana 70 prevent acts Deing zone car
Z