Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-10-06

DY, Chief Justice Of the High Court Of Er
rors and Appeals Of Mississippi, the deci
sion is published in full. The facts are sta
ted as follows:
The petitioner, freedman, was convicte,
on the 18th of September, 1866, in the Coun
" Court Of Madison county, on a charge 0
oarrying fire arms, in said county, in tn,
month OF August, 1866, contrary 70 the &C
Of our Legislature Of November session, 1865
Chap. %, Sec. ], and fined the sum Of one
dollar and costs and, in default Of payment
thereof, he was ordered 10 be imprisoned In
the county jaii for the space Of five days
and Il was ordered that, AFTER the expiration
of that time, the fine and costs remaining
unpaid, be should be hired out for the pay
meni thereofs The return 10 the writ Of hd-
bcas corpus showed, that he was held in Gus.
tody by the Sheriff Of Madison county, in
virtue Of this order and judgment, and by
reason Of his failure to pay said fine and
costs.
On this state Of facts, and on argument Of
counsel ID behalf Of the petitioner, the mat
Ter has been submitted and taken under I'D
visement. in order that mature considera.
ton which the grave and important ques-
lions involved 10 i demand; and / now
proceed 70 state briefly, my views Of those
questions and my judgment in the matter
The first point made was, that the charge
violated the Bill Of Rights Of the State
which secures the right Of every citizen to
bear arms for his defense" This point
being disposed Of the Judge continues:
Again, it is insisted that the second sec.
ton Of the 18th amendment gave 10 Con.
gress power TO pass laws for the protection
and security Of the civil rights Of the freed
negroes, at discretion; that, in the exercise
Of this power the bill entitled " An act "a
protect all persons in the United States in
their civil rights, and furnish the means Of
their vindication," was passed by Congress
in April 1866, and that the act Of our Legis-
lainre, above mentioned, being in conflict
with that net Of Congress, becomes inopera-
tive.
Let US examine these positions.
In the first place, what is the extent Of
the power conferred on Congress by the sec.
ond section of this amendment?
The first section is in these words Sec
ton J.. Neither slavery nor involuntary
servitude except rs punishment for crime
whereof the party shall have been convict
ed, shall exist within the United States, OF
any place subject to its Jurisdiction"
The whole and sole purpose Of this pro-
vision was, TO ordain that slavery should mol
erist lCit.in the United States. Il was pub.
lie declaration Of freedom 90 he sIdbe complete
in itself, requiring nothing further to make
it efiectual 10 the end intended II is of the
nature Of legislative edict, which Of itseli
works out its own object, like a legislative
act declaring minor Of competent age, OF
diyorcing husband and wife, or investing
certain persons with particular specified
privileges, or declaring particular contract
rescinded, or a certain deed void and the
like. By rs mere operation, the right Of free,
dom was established as Ga accomplished fact
and this is all that was done, or intended Il
be done, by this first section.
What, then, is the scope Of the power con.
ferred on Congress in the second section,
" 10 enforce diis article" 1.-THE first section) "bl
appropriate lsgislation."
II was plainly only legislation 10 enforo,
che right conferred IN he first section, that wal
contemplated in this section. Its entir,
scope is TO authorize Congress TO pass lave
securing 10 the freed negro, he right Of free
dom granted
The language is plain and insignificant. Il
is 10 "eafOrce" the right Of freedom confer.
red. This looks 10 resistance 10 itsexercise
aud gives power to provide remedies to zen.
force" il, in case the enjoyment Of the right
Of freedom shall be obstructed or interfered
with. II imports that adequate remedies
should be provided for putting the negro in
the enjoyment of his freedom in case he
shall be detained as a slave, "a was antici
pated, and the like Then il is TO be zap
propTiats TO the right Of freedom, and e
that alone. IL has no reference whatever Il
protecting or vindicating" other and col
lateral rights, not enumerated in the amend.
ment, 10 which the negro might be consid.
cred as entitled, in common with the citi-
zens OF the States; for no such rights are
embraced in the antecedent section confer.
ring the right authorized by the second sec
ton, to be enforced. With no business OF
propriety whatever could it be said that L.
gislation in reference 10 such collateral and
independent rights, was appropriate" e
the right Of freedom conferred in the pre-
viOus section. If this be not true, any power
whatever may be predicated Of this second
section; and Congress possesses the pow
under il TO annul every State law in relation
10 free negroes, except probably those in re
lation to the right of suffrage; to discrimi
nate in their favor against the white man
&c regulate the entire penal code of Stat,
and 70 exempt negroes from punishment &
which they, in common with white men, ar,
subject, under State laws and in short L
pass any laws in relation 10 free negroe
which the widest Imagination could suggest
as proper for protecting and yindicating'
their alleged rights.
In order to the exercise Of an implied
power, the means employed must be ''neces
sary and proper" 10 the end required. "rh'
government Of the United States" say Jus
tice STORY, "can claim now powers which
are not granted 20 il BY the Constitution
and the powers actually granted must be sue
as arc expressly circIi, OF given BIZ necessary i'm
plioaaoa." MARrIN VS.. HUNTER, l WHEA'
104 The implied power must be clearly
necessary and proper TO the carrying out
of the pariicular power expressly granted.
In order TO be appropriate 70 that end
the means must be Suitable, fit or proper
30 the given end WEHrsER's Die. They
must be appropriate to that particular end
and not 90 another; for otherwise, any powe
might be stretched by implication, aud tn
true rule Of construction Of the powers 0
the Federal Government as established 3,
is most eminent expounders, abused or sub
verted so as utterly to violate the object OF
the grant and 10 render the powers Of Con
Cress Unlimited
i. appears 70 me, therefore, clear that thu
act Of Congress is wholly foreign to the en-,
declared in the FIRST section OF the l3amend
ment, and cannot be justified by the powe
granted in the second section Of the amend
ment.
Under solemn senseof official duty, am
therefore, constrained to hold, that the nc
Of Congress in question, is in oontraVentioi
OF the Constitution Of the United States, q
60 the inntter nov presented for my action
and is inoperative and void.
The Judge next proceeded to consider th
Jurisdiction Of State Courts in judicial ques
tions involving the constitutionality Of law
enacted by the Federal Congress, and III
provision Of the Civil Rights bill, prescrit
ing certain punishment for State judy,
who should, by their official actions, obstruS
the operation Of this law, and concludes a
follows:
Notwithstanding this duty Of determinin
the validity Of all legislative acts by th
test Of the Constitution Of che United State
il imposed BY that Constitution and the az
Of Congress nearly c3.eval with the Const
tuition, on az Judges and magistrates, bot
Federal and State, whenever case is Pre-
pcrly presented for their decision, il is nc
d 4 ~ q -