Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-26


: which any one has right TO resist D.
arms; and TO take life in the maintain
ing whereof is murder.
There is noting in the nature OF con
stitutiOn that requires IL to be eonstrue
: with subtlety, or otherwise than as othe
instruments are made by plain men
be read and understood by plain men
! not for sinister purposes Of personal lnte
0 rest, nor 90 conceal mysteries or una
vowed objects. Ii is an instrument tha
means to speak fairly and frankly, win
out oquivocation or mental reservation
! nor was It intended that its true recon
) dite meaning should only be eyisceraie'
by the aid OF metaphysical subtletles 0
/ ambideXterity, 50 IS that it should nav
one meaning for the many and another
and the only true one, for the few
Where it contains provisions IN re
strail,t. limitation or derogation Of thi
rights of individuals, whether thost
rights be personal or political of pro
perty, liberty or life, Offree thought, FREE
speech or equality Of political privileges
these provisions are to be strictly con
strued, as the law OF reason and justice
and good sense requires penal and crimi'
nal laws 20 be; because il may not be pre-
sumed or believed that the people meant
to fetter themselves in that manner
any further than they have eXpr(Ssls :
I declared: but wherever it prOvides-foi
the exercise of the ordinary and benefi-
cial powers of self-government, there Is
no reason for strict construction since II
is reasonable to suppose that they ia
tended that all those powers should be
/ fully exercised for their benefit.
The powers of government are three
fold the power Of making the laws
~ l,a hp
power of interpreting the laws and ap-
. plying them between individuals, and
| between the State and lis citizens. Each
/ is exercised by the State, through the
proper department or officer. 1t is the
( Stale that sits and decides in the courts,
as it is the State that legislates; and the
( decision OF the court is the decision OF
1 the State; that is, of all the people OF
! the State, and of every citizen.
I Possession of the powers Of self-sovern-
ment, without any superior, is "sOver-
! eiguty,u in the American sense of the
word. The judicial power is plenary and
sovereign, like the other powers; that is,
I the State agrees L hear, examine and
decide, in her courts, all controversies
as TO private rights, arising be-
/ tween her citizens; and be-
/ tween them and the citizens and
subjects Of other States and countries
and in certain cases, between her citizens
and herself: and she also agrees that she
{ will, in those courts, whenever the decis-
/ ion of private rights requires 1t, re-
examine any law alleged 10 be UncOnsti-
I tutional, and any executive action
alleged to have been usurpation and if
! the one or the other be Unconstitutional
I or an act of usurpation, declare that the
law or act never was hers, because she
never empowered her legislators to enact
the one, or her executive officer to do
the other.
If the means are not provided for eX-
ercisiug any given portion of this judi
cial power, the State so far abdicates the
functions of government and emascu'
lates itself A government without a
Supreme judicial tribunal, for example,
10 decide IN the last resort, would be an
anomaly, If not a failure; and If any
considerable or material portion Of the
judicial power were in allegiance, not
rxereiseable by alg judicial tribunal, the
State would, TO that extent, want the
parts and fair proportions OF q complete
and perfect State. rs self f-mntilauon Is
not TO be presumed, nor, except by the
most stringent necessity Of construction,
admitted.
The question endeavored to be pre-
scented to us, Is one well calculated TO
cause Us to consider whether this court
has not, with too little consideration,
danuaed itself of those salutary and
beneiicent powers, always exercised, for
the pr0leetiou OF the subject and not OF
the Just rights of the Crown alike, hy
the Court OF Kings Bench, in that couu-
tTy from which we received the Com
mon Law, Magma Charta and the Writ
of Habeas Corpus whether, in holding
thst it never had, as q power proper, the
power to protect the personal liberty OF
the citizen by means Of the great
Writ Of Right, and 50 to make good
that promise OF Magma Charta, copied
and reiterated from q much cider Char
ter of English liberty, that no man
shall be arrested or imprisoned, or de-
nrived OF his freehold, except by the
regular Judgment Of his peers, or the
law Of ti3e lRud;' and that pledge OF
Royalty, that it would neither sell, deny
nor delay justice to any one whether,
ia holding that it could not, exercising
a power proper, enquire by writ OF quo
warTanto into the rights OF persons TO
bold the offices and franchises of the
State whether in thus, as upon com
als
as the successor Of the highest English
Courts, il has not even overlooked some
element Of the question, or in some way
erred iu tie processes Of logic by which
its conclusions were reached, or in some
way been nisled by supposed authority.
The times, also, a,-d the grave eNigen-
cies Of the hour admOnish Us tnat IBIS Is
not q fit season for the abdicatiOD by this
court Of any portion Of its constitutional
powers. Once, already, il and other
courts have been attempted 70 be closed
bv order Of a military OniGeF, that tney
mightn0t interfere with the dispeusaJion
OF martial law; and another officer, in q
repC-t of his military operations, made
to tie ssesretaTy Of War, and published
70 the world by direction cf the House of
. Representative of the Confederate Con
gress, has officially stated that, ia May,
1852 the Courts Of this State were
suspended, sni civil magistrates almost
universally ceased TO e@ersise iGelr
functions > and That in consequences
Of the virtual Ehdication Of the
civil authorities, he believed iE to be his
duty, gs the only man having the re-
fUisjie force, to institute q government
al interim over the whole State which
he considered incumbent upon him,
alike for preserving society and creating
ana laaiutainiDg an army To effect
this, he reports tIst he proclaimed mar
tial law over the State TO % ,.dminis-
tered bv a system Of Provost Marshais
and that although many arrests were
made, and tthougn the arder proclaim
ing martial law plainly invited the civil
authority &c re-Rssert their jurisdiction,
he never heard that lhs writ OF Habeas
Corpus was even spoken of, except IN 2
single case and in that it was not sued
out. 1t is not for us 10 yindicate, whether
/ from asper-iOn or just censufe, the other
/ authorities of the State, or the subOrdi-
/ nate courts of justice; but, simply
saving that this court, at least, was
4 never Suspended, 10 inquire whether
not in obedience Jo Eli.it9ry usurpa-
( ton, but in Difference 10 former oeci-
sions, its magistrates had ceased to eX-
I ercise any Of their functions we being
/ now stirred to do So, ~ 5one measure,
/ by the present situsuon Of affairs. por
more than half the State IS either in pos
I session Of the enemy, or continually dis
puteI between hostile bands that traverse
il. 10 the destruction of civil government
+ ana the enforseG silence OF the laws. A
usJlrping government II tie capital, eN-
/ ereises IL fpuctions, protected by Federal
arms in that part Of the State held by
! our armies, it is long since the Circuit
/ Courts have been holden and crimes are
daily committed with impunity; and the
: laws, poth Of the Confederscy and the
1 State are daily Violate, and license reigns
/ supreme; while the privilege OF the writ
/ Of Habeas Corpus may at any time bt
suspended, In eases OF arrest for a great
variety Of offences vaguely defined.
I "God places the Crown" said that
Z upripnt magistrate, MalesheTbes, in l77l
10 Louis the Fifteenth, son the head oi
I,inRs. to preserve to their Subjects t1s
{ endowment Of Life, Liberty and Prop
eriy. This trgih flows from the law OF
God, and from the iaN ~ ..ature, and Is
I peauliar to no constitution 40 tii
: same end thie court is invested with the
supreme judicisi Po@er Of the State
( anil sworn TO defend aud prsssrye The
constitution, it cannot be better eni-
3loyed than in tiia preservation Of tht
/ Tjebte guaranteed by il IN securing tc
lie Citizen that true old English
liberty which gives - relish to every
endowment and in vindlosting thf
soyereignty and maintaining the
lust pref0Eatives Of the State that
none may usurp h5g offices and fran
ehises; that no Offices may carry on
unjust oppression where our jurisdic-
4 ton extends. since it hath been always
known, that they VINO give absolute
mower, give the abuse OF absolute power I,
. Z ~ Of n4aeaa -