Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-05

LEBAxoS, 21st Dec, 1858.
Mrsirs JOIN WILLIAMS, RIcHARp b CHEATHAM and 4
others, members Of the General Assembly:
CESrENEN You ask my opinion aupOu the CON !
s.tuionality Of law expelling the free colored pop
ulaticn from the State Of Tennessee.
Ny opinion IS that such a law would be constitu-
tionaI AS the legislature has the general power to
enact any law that is not forbidden, either by the
Federal or State constitution it devolves on those
who entertain a different opinion to show some such
prohibition "a the opinions Of the distinguished
gentlemen which you enclose to me, it Is contended
that it would violate the following provisions OF the
constitution: l. That which forbids the passage OF
any law impairing the obligation Of contracts. 2
That ghich Iorbids the passage Of any Retrospective
law. g. That which forbids freeman to he exled
or in any manner deprived of his liberties except by
the Judgment Of his peers or the law of the land.
From the eminent ability Of these gentlemen and
the emphatic earnestness with which they assah the
proposed law, we may safely assume that they have
adduced the only grounds upon which its constitu-
tionality could be questioned.
Iwill examine sbe first two grounds in connexion.
If there is any difference between a law impairing
the obligation Of contracts, and retrospective law,
it has never been very clearly defined by the courts,
and any nice distinction that may really exist is not
/ important in this discussion.
The first question is, whether there ever has been
any contract with the free negroes Of this State,
with their former masters, which imposed obi
CATION on the State to let them remain here long
as they please? If there ever was, is to be found
/ in the act Of emancipation as to those who were
manumitted here, and the act Of allowing them to
come and reside here, as to those who are immi-
grants. AS to the latter it may be remarked that
the laws which allowed them to come and reside
here did no more than put them uponan equal foot
ing with those who were liberated here And as to
those who were born here of free parents they only
succeeded to the status of their parents with all and
no more than the capacities and incapacties which
belonged to that status We need not therefore, speak
of any other class than those who were manumitted
in Tennessee.
The process Of emancipation simply this
The master granted to the slave his legal right to
control him, the slave accepted the grant, and the
State assented to The assentO the State amounts
to an agreement that the slave may henceforth con
troll himself instead of being controlled by master.
There is only one single legal right expressly
IN this transaction and that is the right Of selcon-
troll There is no express contract that he m7y re-
main in the State as long he pleases, and there
fore there is no express obligation imposed on the
State to allow him to remain II there is any such
obligation it is an implied one. And how we to
determine whether it is implied or not: We must
apply some legal test It is a question Of law, and
we must decide It by settled rules Of law. The law
furnishes this very reasonable test by which we are
to decide whether the express grant Of one right
carries with it tine implied grant of another. If the
right claimed as an implied one is necessary to the
full enjoyment of the right expressly granted then
the latter carries with it the former In Parsons
on Contracts, G8j Sec ? the rule is clearly stated
and the authorities referred in which it is fully
explained state It here in language which COW
cedes to the free negro the most ample benefit Of
the test coacede to him the right TO remain in the
State as one that is implied in the express grant to
linn Of legal free agency. If It is necessary, not
merely to apy enjoyment Of that free agency, or to
any JegfcaI enjoyment Of it. but il it is necessary
to the fill enjoyment Of II. This is as favorable a
test as he could ask. But before we apply it, we
must settle another thing and that's: what is meant
by the full enjoyment Of this right Of free agency
l do not ask for ;he grammatical meaning: de not
inquire how criticism would define the language but
how does the law define it? This will more clearly
appear BY the statement OF few admitted facts and
principles. 1 aver that they show beyond all doubt
that in regard to this particular capacity of self
government, as it exists in white men, no abridg-
ment Of the liberty Of action Of choice consid-
cred inconsistent with the full enjoyment Of it. If
any such abridgnent of their liberty is decided to
be unconstitutional it Is never on the ground that it
takes away a right which is implied in this express
right to legal free agency, but upon the ground that
it depriyes them of some liberty that is guaranteed
to them by some specific provision Of the Constitu-
ton.
And first it is very obvious that afree negro may
retain his free agency and yet be banished from the
State. You do not deprive him Of his status as a
! free man you do not take away from him that
right of self control which you have granted him.
by compelling him to leave the State. Many anegrO
is now in Liberia in Canada. in Illinois and else
where, in the enjoyment Of that liberty which was
conferred upon HMM Tennessee. And many one
is here who was emancpated elsewhere, and they
are as fully enjoying their liberty if they had
remained where they were freed as fully at least as
our freed men are. Not only may he actually enjoy
the liberty granted him here, after he is expelled
from the State, but he can enjoy it to a far more
beneficial extent than he ever can here. The right
| to remain here is not therefore necessary to the
existence Of the right granted nor to the enjoyment
/ of it in a highly beneficial degree. He may even
enjoy it much more fully and amply than he does
here.
But it is said, this is not full enjoyment of the
right of sgltcontro for this reason: It takes from
him the liberty of deciding for himself whether he
will remain in the State or leave it, you first confer
a legal free agency upon him, and then in a very
important particular you will not allow HIM to ex-
ercse that free agency: when you granted to him
the liberty of being governed by his own will instead
! Of the viii Of a master it was a legal incident to
that right that he could choose his own domicL and
now You take away that legal incident and deprive
him Of the right of choosing his domici most evi-
/ IDENTIFY therefore you have curtaied his liberty,
and thereby deprived him of a right that was neces-
sary to the full enjoyment of the free agency ex-
pressly granted to him by the contract of emanci-
| patton This is the argument; and now let US test
! its soundness.
The only principle in the argument is this That
whatever he had a legal right to do by virtue
of his free agency at the time 1t was granted to
him, he continues to have right to do; it at
tached ut once as legal incident 90 the capacity
vested right. and a law that would deprive him Of
it would be a retrospective law; it passed by the
grant which is a contract and a law depriyiug him
Of it, impairs the obligation Of a contract; and
thus It comes pass THAI although he is left in the
enjoyment of his free agency it is not that full ell
joymcnt whica pertaned to it when it was granted
Is is setu.J In the case Of white men that il Is not
legally necessary to the full enjoyment Of their rgh'
of self control, that they should continue to have
the right to exercise their free agency perfectly
as they had at the time Of their nativity their Eatu
rdlization or at any other time. 1t once legal
incident to their capacity government that they
might engage in the business of banking. At that
time the naturalization of a foreigner ct once in
vested him with the right of banking. The native
citizen was invested with it as a legal incident to
his brtlright The free negro had it too. The
law took it away from ali of them. So with
hundred other laws. Every law that forbids man
to do what he might have done before orcommaGds
him 10 do what he might have refrained from do
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