Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-04-21
THE CIVIL RIGHTS BILL IN THE
MEMPHIS COURTS.


tain negroes in the Criminal Court Of Mem
phis, in which their counsel pleaded tn,
late act Of Congress known as the Ciyi
Rights Bill. Below we give the decision 0
Judge HUNTER.
The Attorney General excepted to the de
cisiOn, and the case will go TO the Suprem,
Court. Ali cases of presentment for keep
ing billiard tables and retailing without Ii
cense, will be held in allegiance until the de
cision Of the Supreme Court In order Il
bring the naked question before the Court
il is proposed to file petition before the
Judge Of the Common Law Court for a man
damus TO compel the County Clerk to issue
a license to a free colored man, who has
under the instructions Of his counsel, Mr.
sale, applied TO the Clerk for such license
and which was, on the opinion Of the Attor.
ney General, refused.
The following is the decision Of Judge
HUSTER
"The indictment in this case is for keep
ing billiard table without a license. To
this the defendant files two special pleas
lst. That the defendant Is a person Of color.
and that there is no law in this State per
hitting him TO obtain a license for such pur-
pose, and no statue for which he can be pun
shed for keeping billiard table without
license. "a. That he is and was free per-
son Of color, and by reason of the late act
Of Congress, known rs the Civil Rights
bill, there Is now no law within the State
by or under which defendant can be pun
ished.
TO these pleas the State demurs. These
pleas in bar. and the first one at least would
be Objectionable under the well known rule
that matter which is admissible in evidence
under the general issue can not be pleaded
specially but under the provisions of sec
tons 29l3 and 1916 Of the Code, the de-
PENDANT may plead generally or specially
any matter at defense. The first plea, there
fore, presents the whole point in the case.
The facts contained in the plea, the Attor-
ncy General confesses, a he Stands by" his
demurrer.
The scond plea is the same in substance
a the first, only that in addition it pleads
specially general law Of Congress.
The Court will judicially notice all gem
eral acts Of Congress and Of the Legislature
Of the State. II is proper and necessary to
plead only special or local laws of anyother
State or county.
And for these reasons the demurrer rs TO
this plea must be sustained. The issue Of
law rendered by the defense and accepted by
the State upon the first plea, is one Of great
importance, and deserving Of careful exam
nation.
The first section of the act Of March 18th,
1866. provides. THAT the various County
Court Clerks of the State, be- and are hereby
authorized to issue a License to any free uhifc
man applying for the same, to keepa billiard
table," &c, &c.
The fifth section provides. That any
person who shall erect, putup, or keep for
gain, or charge TO any person using the same,
either as a billiard table, Jenny Lind table,
&C. without first procuring license there
fore, ~ provided in the foregoing sections Of
this act shall be subject TO an indictment or
presentment, and upon conviction shall be
fined or fined and imprisoned, ut the discrc-
ton of the Court"
The oicnsc is alleged 10 have been COM
mitted on the 18th day of June, 1860. The
prescntmcnt was returned into Court July
10th, 1865.
The act of Congress which is relied on bv
the defense, was passed and became law,
April 9th, 1866.
The first section of this act declares that
"All persons born in the United States
and not subject 10 any foreign power, ex-
cepting Indians not taxed, are hereby de-
Clarcd 10 be citizens of the United States,
and such citizens Of every race and color,
without regard TO any previous condition of
slavery or involuntary servitude except as a
punishment for crime, whereof the party
shall have been duly convicted, shall have
the same right, in every State and Territory,
10 make and enforce contracts, to inherit,
purchase, lease sell, hold and convey real
and personal property, and 10 full and equal
benefit of all laws and proceedings for the
security of person and property, as is enjoy
ed by the white citizens, and shall be sub
Ject 10 like punishment, pains and penalties,
and 10 none other, any law, statute ordi-
nance, regulation or custom to the contrary
Notwithstanding
The Supreme Court of this State, in an
important case, lately determined-tha of
the State as. Davidson-the opinion deliver
ed by Judge Hawkins declares, as general
rule of law, that 10 authorize the punish
ment of the accused, il must not only APP
pear that nj the time the act was committed
il was declared unlawful, its punishment de-
Clared and fixed by law, and that there was
a tribunal clothed with power and authOri-
ty 20 try the offender, pronounce judgment,
and enforce the penalty incurred by viola
ton Of the law; but such laws must be valid,
and existing at the time of the trial, or no
Judgment can he pronounced, or punish
ment inflicted; and if either has failed or is
wanting at the time of trial, such trial OPP
crates as 4 pardon of the offender, and en-
titles him TO a discharge"
The sixth article Of the Cons ttution of
the United States declares that :" the Con-
stitution and the laws Of the United States
which shall he made in pursuance thereof
and all treaties made, or which shall be
made, under the authority Of the United
States, shall bo the supreme law Of the
land and the Judges of every State shall
be bound thereby, anything in the Consttu-
ton or laws of State TO the contrary not
withstanding'
Ii is evident that under the act of the
Legislature Of Tennessee of March -. 1860,
the free white man can obtain a license such
rs would be a full protection and defense
against this Indictment, and that the man of
color was by the same act prohibited from
obtaining it. That such prohibition is on
account of color and, as consequence,
making him liable TO prosecution and pun
iShment for che same reason that, there
fore, the act in question prohibits him in
that respect from the full and equal benefit
OF all laws and proceedings for the security
Of person and property, as is enjoyed by the
white citizen, and makes him amenable TO
punishment, which under like cir0um-
stances could not be inflicted on the white
citizen. condition of things which it was
the evident design of Congress to prevent by
the passage Of the act known as the Civil
Rights bill and which must be held to IT.
peal SO much of the act OF the Legislature of
Tennessee as is in conflict Herewith. The
act Of the Legislature upon which this in
dictment is based being so far as il relates
90 this case, in conflict with the act of Con-
gress which etiectually repeats it, there is,
therefore, no valid and subsisting law at
this time 10 sustain this prosecution.
The demurrer TO the first plea, must,
therefore be oyerrulcd, and as the Attorney
General stands by his demurrer the iudg-
ment will be against the State for costs and
the defendant will be discharged,
CROP PROSPECTS IN EAST TENNES-
SEE.
4 gentleman writes us from Knoxville