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

maiYv a white woman if she would have him; it
was an incident to his capacity to decide for himselt
whether he would marry white woman or negro,
and many of them exercised that right. That was
AS important right as the right Of choosing his
domici more vitality involved the happlhesso Of him
self his posterity aud society. And yet ne was de-
priYed Of that liberty. and it never entered any
body head that it Impaired the obligation Of CON
tract, or tbatit was retrospective law. Why can
you not upon the very same principle deprive him /
Of the right Of choosing for himself whether he viii
remain ia Tennessee or emigrate2 It rests upon the
verys anne foundation; it comes from the ~ same
source, the capacity of self government; and when
youdepriye him the one you affect his liberty in the
very same way that you do when you deprive him
Of the other yor deprive him Of the right Of decd-
ing for himself what he shall do in the specific cases
If the foundation Upon which the different rights
rest is the same, and the affect upon his liberty is
tle same, there can be no legal principle, by which
one can be pronounced unconstitutional and the
other not
But if you are to pass law to exile particular
class Of native or naturalized white men, you could
see the reason why that was unconstitutional II
YOU were to enact that all citizens Of Irish blood,
native or naturalized should be expelled from the
State they would answer yon-nOt that the right OF
remaining here was heretofore legal incident to
our status of freedom-but that we are free men,
and cannot under the constitution, be exled but by
the law of the land; and this is not law Of the land
because it does not apply alike to all freemen But
if it were not for that or some other specific pro
vision Of the constitution they would have to so.
/ The only point at which the Legislature has to
stop in curtailing the liberty of freemen, is the
/ point where they are met by some specific consti-
tutional prohibition. They can go on taking away
one right after another-one liberty Of deciding for
themselves after another-untl they assail a iber-
ty which is protected against their power by some
constitutional guaranty. There is test by which
you can distinguish their power over one right from
their power over another. When you curtaIl his
liberty in one respect and he finds no specific guar
anty of that liberty in the constitution, he IS obliged
to yield it. When you impose another restriction
en- his liberty, and he finds that secured by the con
stituton he resists the encroachment, and the law
has to yield.
1t is just so with free negroes. If you deprive
them OF any particular liberty, the right for in
stance Of marrying white woman. or Of retailing
spirits or pedding, they yield it because they find
no specific guaranty of those rights in the c9nsttu-
ton. When you take away the right Of remaining
in the State the question is the same; is there any
specific constitutional guaranty of that particular
right? If not they must go.
We have seen there is none, unless they are free
men in the sense of art l. s. Of our State constl-
tuition Fo~ no one pretends, in this country, that
they are or can be citizens 1t decided twenty
three years ago in CIAmoGNEs case, that they were
not citizens, and no lawyer has questioned It since
1t was commended in the same case that they were
eenen in the sense of the above section Of dec
laration of rights. The court decided that they
were not They decided that freemen there meant
the same thing as citizen in the Federal constitution
The declaration of rights was declaration Of the
rights of equals and intended to secure their equal
ity-of the people who formed the government to
secure them against oppression. 1t would seem
most strange if they were securing these rights
to an inferior. degraded class, and thereby bring
ing them up to equality with themselves
Ifthatsection secures shem against exile, it secures
them against all those discriminating laws which
have mentioned 1t says in substance that no free
man shall be exiled or in any manner deprived OF
his liberties or property, but By the judgment OF
his peers or the law of the land. 1t is very well set
lied in our State that by the law Of the land in this
section is meant general Law applicable alike to all
freemea If they are frcemen, law that takes from
them the liberty of pedding retailing spirits, or
Of selecting wife while ii leaves these same liber-
ties TO white men, is not constitutional it would be
martial not applicable TO all freemen, and therefore
not law Of the land. Suppose the law were to for
bid Irish citizens alone to engage in these pursuits
then it would apply to only class Of freemen and
would be evidently void. Suppose it were to for
bid Irish and German citizens to intermarry, il
would for the same reason be void We have many
laws restraining the liberties Of free negroes as
class which have been long sustained by the gener
al sense of the country, which must be swept from
our statute book as unconstitutional, if they are
freemen in the sense of the declaration Of rights
Ny conclusion is. that the act of emanciPatng a
slave only conters upon him the capacity OF acting
as a freeman, subject, a. the same capacity in a
white man is to all curtailments of his liberty that
may not be forbidden by some specific guaranty Of
the Constitution; that he is not a freeman in the
sense Of the declaration of rights and therefore may
be eXiled
If this conclusion needed the support Of additional
authority it might be found in the opinion of the
very enlightened body which enacted the Code of
Tennessee. Section 1903, after providing that all
SlIUeS who have acquired or shal acquire zig II 10
freedom shall be transported to Africa, provides
that every person Of color held in slavery who shall
sue Tor and recover his freedom" shall share the
same fate: he shall be transported to Africa. He
is not only to be exiled, but choice given him
as to what country lie shall go to-
have all along through this discussion admitted,
OF seemed to admit that you could not take away
from free negro the right expressly granted to
him the status of freedom the capacity Of self
control. have contended that you might curtail
his liberties to any extent, leaving that status IN
touched. l do not wish to be understood as admit
ting that you might not even deprive HIM Of that.
All mean is that I do not discuss that question.
There can be no doubt however, that you may pre-
scribe the forfeiture of that status punishment
for dsobedience to the law requiring him to leave
the State. provided that law is think it must be,
constitutional
Respectfully, yours,
Alb. CARUTHERS.
Effects Of 1he ..Irrepres4ibge COnfIict''
Z Il, .A--