Nashville patriot. [volume] (Nashville, Tenn.) 1858-1860, 1860-01-07

that now before the Legislature, is the same
as that between power of regulation and
one of Destruction You may regulate Rail-
roads, Banks, Steamboating. &C., but you
cannot make root and branch work of them
where they have charters.
There might be persons in the State of Ten
nessee who were under no Constitutional pro-
tector--aliens, Cinnamon, Indians, who were
here permissiveiy, who were not invited,
with whom no contract had been made. These
might be. and perhaps would be, subject 10
removal at the pleasure of the Legislature.
Indian natiors have been dealt with in this
way, but no individual Indian to whom lands
were RESERVED and the right given TO reside
in the State. Whenever Indian nations have
furnished with new home aud settled in it.
Their removal. too, has generally been either
under the war-making or treaty-making
power.
In addition to those portions of the con-
stitution referred to by Judge CARUTHERs,
there many others that it might be diff
cult 10 avoid giving effect to in favor of free
persons of color, especially when we consider
that at the time of the adoption of the con-
siitution there were many Free Negroes in
the State, and that they had the privilege of
voting. l stated in my opinion given to you
some time since, that the words citizen and
| freeman in the Constitution did not embrace
slaves This was done in Difference to the
opinion in Claiborne's case, which settled the
construction upon these words in this State.
To this construction adhere, though might
say that when the Constituent Assembly
| seem TO wish to make the distinction between
| the races. they use the words, Free White
man." Indeed, the word freeman as used in
our Constitution is nothing but copy from
Magma Charta, and probably its meaning did
not occupy much of the thoughts of the
| trainers of our Organic Law. Passing this
| by, however, what shall we say of such pro-
visions as these: THE right of trial by jury
shall remain inviolate:" ''No person shall for
the same offence be twice put in jeopardy of
| life or limb mo post facto law shall be
made:n ..No conviction shall work forfeiture
| of eslatc:'' Excessive fines shall not be i'm
| posed, nor cruel and unusual punishments in
| ficted:'' These provisions are not restricted
TO freemen or citizens. Some of them are in
| the Federal Constitution. The two last
would seem to have some bearing upon the
| question now in hand. '.No conviction shall
work forfeiture ofcstate." Let US see if your
law would not bring you inIo conflict with
this provision. Yon require freedmen to
expatriate themselves, and if they refuse TO
| do so, you make this cause of forfeiture of
| freedom, and of course of estate Their
| failure to eXpatriate themselves becomes by
| your law crime; they are tried for this crime
and being fonDd guilty, the judgment is that
they shall be sold. Your law does not pro-
pose to muster the military and expel the
| freedmen, but to make their remaining,
crime TO be expiated by forfeiture of freedom
and estate.
| Under The last provision above referred to,
| might say think that the punishment is an
unusual one, though | must admit too. that
the crime itself is, if not unusual at least sin
guldr.
To the general proposition that Legisla-
| ture of enc of our States can enact laws which
will he valid if not prohibited by the Federal
| or State Constitution, there is no reas on why
I should object. understanding. as / do. that
| these Constitutions provide against ali that
description of Legislation which the British
Parliament holds as forbidden TO itself Om-
| nipotent as il claims to be. Hold. however.
that without any provisions prohibitory in
our written Constitutions, the Legislature
would be incompetent to some species of Leg
! islation and hat the Courts would so DECLARE
They would be incompetent upon the grounds
| that our Institutions are based upon inielli-
gence, freedom and humanity. These cam
! net be effeciually outraged by any LegisIa-
| tive provisions. do not say that the Legs-
lation proposed would be an outrage upon
either of these. Upon that question Iexprcss
| no Judgment.
There are cases in which whole people
may take action, cases not provided for in
| Constitutions. and which it would b. impoli-
! tic TO provide for in advance. When such
| State necessities arise they must be met as
| they may. They cannot he met by Legis-
lature as such. Force alone, perhaps. can
apply the remedy.
Yours with respect,
EDWIN H. EWING.