Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-22

without an explanatory context. We have here
construction uabroken in uniformity for sixty years
in North Carolina and for near forty years in Ten
nessee We have the people and al the departments
Of government adopting OF scquisscng in the broad
and comprehensive meaning. and we have the mem
bers Of the convention actually engaged in conform
ing the various sections Of the amended OOnstitu-
ton to the construction and meaning thus impressed
on the term. We cannot, will not err in coming TO
q correct conclusion, il we will read this instru-
meut in the clear and steady light difused over it
from these sources
deem it proper sir, to remark just here, that
the dsfranehisement Of free men Of color does not
effect in any way their civil rights under the Con-
sttItion. The right Of suffrage does not constitute
a necessary element in citizenship; an individual
may be citizen Of State, yet have voice in its
in its government Persons convicted Of Infamous
crimes are disqualified from voting yet they do not
forfeit thereby their civil rights and immunities
Judge Gaston in the case have already mention
ed says, the possession of political power is not
essential to constitute citizen :" aud Chief Justice
fancy, in the opinion of the Court in the bred
Scott case, says, undoubtedly, person may be
citizen that is not a member Of tie community who
form the sovereignty, although he exercises no
share of the political power, and is incapaciatsd
from holding particular Offices"
Sir, the advocates of expulsion refer Us to the
case Of the State vs.. Claiborne, (Meigs' Rep 33l)
with an air of complaoent triumph. They tell US
correctly that the venerable and learned Judge, in
delivering the opinion Of the Court in that case,
says that the term freeman" in the section in
dispute, does not idclude free persons OF color
undertake TO show that this part of the opinion
cannot be fairly relied on as q judicial decisions
and that it is not sound ia argument as the mere
conclusion of learned lawyer ard judge II IS
not authoritative as a judicial decision and wo1ld
not be 50 regarded in the same Court FOR the Tea-
son that it is a mere obiter detuR Of the Judge.
Was the point properly before the Court, and vas
it necessary to decide it? The defendant, free
person Of color, was indicted for coming into this
State from Kentucky and remaining here more than
twenty days, in violation Of the Of 1881, Chap
1902 and it insisted in the Defense that the act
was unconstitutional and void Ii is laid down IN
the opinion as iudisputable principle Of Law
that every free State has a right 70 prevent
foreigners going to it, and to punish those who
violate such laws" and it would follow from this
principle bat tie act of 1884, prohibiting free per-
sons Of color from coming in this State, was cou-
stitutiOnal, unless they were protected under the
clause of the Federal Constitution which declares
that The ciizers OF each State shalt be entitled
to all the privileges and immunties Of citizens IN
the several States" The Court upon full argument
Ofthis poiut, decides that free persons Of color can
not be citizens Of any State IN the sense OF this
clause, aud the correctness OF this decision has
been confirmed by the Supreme Court of the Uni
ted States in the late bred Scott case Right here,
the whole matter Of the defense fully refuted,
ard the coDstituioEsity of the act put to rest. The
Court further decided that the 9Th section, be
its true construction whatever it may, did not ap-
ply to foreigners and it would follow necessarily
that as Claiborne was here IN violation Of C0nsti-
tutional statute prohibiting his coming, he could
not claim the benefit of that section 1t thus clear
that the learned Judge had to pass over these two
points each conclusive on the constitutonality of
the aol, before he could get to the meaning Of the
term, !" freemln." Does the opinion rest upon a
e. 8
cial decisions? It rests mainly, # not solely upon
one prop, ami that will be found on careful exami-
nstion TO be broken reed II is stated that free
man, in Magma Charta, only embraced those per
sons who entitled 10 all the privileges and i'm
munities of the most favored class" aud upon this
assumption the opinion is based mainly, aud free
Of color placed without the pale of the Consti-
tuition and its solemn guarantees. Lord Coke than
whom no greater authority Can be produced on
Magma Chsrta, in committing on the very clause,
now under examination says that NuiEuS hbsr no.
mo, freeman, extends to no villeins, saving
against their lord, for they are free against all
men, saving against their lord" COkes second
lust chap. % Chancellor Kent says, that viii
lein to all persons except his lord was free
man. and against them he had rights Of prop
erty," Kent's Com. page PSI. Niliens did not
belong to the most favored class in England: they
TO all intents and purposes vassal, slaves, me-
mails to their lord MASTER and were inferior in
respect 70 CIVIL gus anu privileges 10 Tree pIsOHs
Of color under laws; yet the term, So eemsn."
was comprehensive enough to bring them under the
broad shield of Magma Chsrta.
I might, Mr.. Speaker here close my argument
OF the question Of constitutional power, and defy
successful refutation from any quarter, but there is
another clause that deserves consideration before
passing from the main purpose of the bill. By the
10Th section Of the Declaration Of Rights it is de-
clsred 60 that no retrospective law law impair
iBg the obligation Of contracts shall be made" l
do not know that alearned disqusition the terms
"Oblgs ion" and contract" as they are used in
this section, would aid us much in the present in
quiry. A plain, practical Common-senss view will
better elucidate the subject l shall coniue my
remarks 10 the rights Of those free persons Of color
under this section, who have been emancipated by
virtue Of the act Of 1901, chap. p. This act was
in full force without material change, until the
passage Of the act Of 1881 aud the great body of
these persons, including their offspring, now in the
STATE, were set free under its provisions By the
first section il is provided that the owners Of slaves
where they are dssirOus of setting them free, shall
prefer petition 10 the County Court, stating the
intention and motive for sUch emancipation; that
the Court may grant the prayer of the petition il
g consistent with the interest and policy of the
State but it not be granted until The petition
gives bond and security 10 indemnify the county
against such slave becoming Ghargeable, and then
they free aud entitled to all the privileges and
immunities tha. other free persons of color
are" By the second section it is provided that
when sucn liberated persons shall by any ways or
be rendered incapable of providing the neCps-
sares Of life they may be Caken back to the county
where emlncpsted. and the Court shall provide for
them.
Now, sir, does the Goth section just read inter
pose barrier 10 the expulsion Of these " liberated
persons from the State? Have they no such right
to country or residence as the Legislature can not
anuul or violate? The right of the master to set
his ig essential alpmpnt If ownership
and the power Of the State to prescribe who shall
become members Of the community OF body polite,
is an indispensable part Of its sovereignty. 10 the
emancipation o. a slave under The act Of 1901, The
right Of the master and the power of the State
meet ami unite 10 producing one result-the invest
iug him with the privileges aud immunires of
freeman Of color. L. will be seen. examination,
that the act Of the owner communicates 10 he slave
Q right to freedom, which this section protects,
iuviOate contract, while the assent OF the
State only likes the locality where the freeman
may use and enjoy his freedom. In the Of
Lewis against Srmontor, 8 Humphreys Rep. 100,
Judge Mckinney says that 'the owner may part
with his right Of property in the slave as fully
AZ common law, and thereby vest him with i'm
perfect right ID freedom" and by virtue of such
contract, 'he legal character anG CONDITION Of the
slave is changed" He continues: ellis relation TO
his former master and TO the community are like
wise changed. By the act Of the mas or imparting
to him an Imperfect right to freedom he ceases to
be in the state and condition of slavery-ceases to
have an owner or master within the meaning of the
Law" Why sir, does this learned Judge call it an
imperfect right to freedQm?" Can the master do
snythng more to make it perfect and complele'
No. He has parted with his ownership and do
mniOn as perfectly as if he had conveyed the slave
to q third party. He has no right or power to re.
duce him again to slavery. He cannot. on any pre-
snse snnul or impair the obligations of this
contract. The slave has NJ masIer-he has no
owner-he is not a slave il the eye Of the law.
The right to freedom was imperfect under the act
Of 1901, because the slave could not enjoy il here
without the consent of the County Court
Prior to the passage of the Acts Of III aud
1901 the mere act of the master made his slave
4 freeman and invested him With all the privileges
aud immuuities Of his class in the community. Ii
was the purpose Of these two Acts ID take away
from the owners of the slave the sovereign power
of Introducing new members into the body polite,
and give il t. the CouGty Court that its abuse aud
perversion to evil might be prevented Now, Sir,
what was embraced included in the assent Of
the County Court? What benefit or privilege did
IL confer on the 81 ave? 1t did not effect nrinsi-
cally the right of the slave to freedom or give
any additional validity to the contract: for in
legal contemplation the master and the slave we're
in court snd the validity Of his right 10 freedom
was not and could not be questioned. Il impaired
TO the slave sll that the sovereign power could
give-the right Of residing in the Stare as fres
e ,oIor TuHga Eatr,D 1a6Dor - -o.-...1.-