The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-10-17
Opinion of Hon. George s. Bryan, Deciar-
ing Reconstruction Acts and Civil Rishts
Bill CONSTITUTIONAL.
,. orA'Es Indictment for
'S. passing Counterfeit.


Messrs. j. Barrett Cohen and Thos. Y. Slmons,
| having challenged the array on several GROUNDS,
among others the unccnstitutionality of the ACTS
| of Congress OH which the order to draw the Jury
was based.
ness that we are gathered in this Court House ana
| in Court in direct relation with the hghest au-
tholity in the United States and the highest judi
| cial authority. Whatever has been done shu
whatever judgments rendered, have been IN ac-
cordance with the law 1t is matter Of great re-
lief that the Judge s not above the law, that ne Is
minister Of the law, and subject OF ne law.
| Touching the practical issue i'll the case OF the
young man to be tried dby jury under the 9 iaw 9i
South Carolina, and who was arraigned In accord:
ance with the finding OF the Grand Jury, the jury
now drawn are of the same class as those VINO
would have tried him previous to the war; Inere
| is no question Of substance; the questlon practl-
cally is not raised, as it might decide that there
were those in the pannel not properly there. II
| any colored person were there, counsel Would
have the right OF challenge. 1t is their privilege,
however, to make objection to the array; shau
not 20 off on side issue, but will meet the ques-
ton as made, though would have preferred that
it had been presented before one more able 1t ID,
| however, my duty to meet it. '7'
Before entering into the matter would say
we must deal with what properly all concede,
| namely, q condition not contemplated by the
trainers of the Constitution. We are compelled to
enter new paths, and consider new conditions,
and resolve new problems as bestSwe may. Allu,
sion las been made to the expression OF sentiment
at recent elections. They may decide questions
fairly in another sphere with the views that en-
tertain. l do not regret those indications, put
cannot recognize them in the Court House. l
cannot look to minorities or majorifles, or ths
| shifting opinions OF the hour. A-judge ls mo
politician He must look to laT, and nothing but
the law AS to the great question of the negro, II
is but breaking ground. Not to-day nor TO- NOR
row is this great question to be settled. W must
be governed by experience, and will have to take
counsel from times to come, and Legislation Will
| have to be framed by experience.
| To show how little Judge ought to be guided
by public opinion, let US look back year or two.
1t will be remembered that when gentleman OF
great character moved in the Convention that the
right of testifying be conferred on the negro, II
was doubted whether he had lost his sanity or MS
vanity; yet little later Legislature granted this
right and it has been regarded as an aid to the
colored man and an injury to none.
Now as to the right OF suffrage, when the Conven-
ton met under Governor Perry to make new
Constitution for the future, the 'colored people
we're cut off from every political right and lts
provisions were limited to Shite men, That wa
the sense Of the people then-honest sense doupt-
less. 1t is also known that within three months
soldier, second to- none, beloved and respected,
thoug hit that broader privileges should De extend
ed and was willing to accept for himself and the
colored man impartial suffrage. These are exam
pies; judge what it is to be sTayeo Dy tne opnlos Us
of the hour, and how unpleasant to be tied tG
such an uncertain guide, who will depart from a ms
| iuty and become an unfaithfuls minister OF the
law in the Temple OF Justice and whose
opinions would have no legal weight. SA
Thes question is made on the order roF court
dAIS .TUSspar 5uy o 1867 1T having been report
ed by the CLERK OF the Court and the United States
Marshal that it is impossible to obtain the returns
Of the Tax Collectors before the close of the pre-
| sent term If the Court,
z On motion O, y. T. Corbin, United States Dis
trict Attorney, it was ordered that the Clerk and
Marshal make up the jury lists from returns OF the
Tax Collector Of st. Philips and st: Michaeis, IN
| accordance with the order Of June 28, 1867.
"It will be observed, therefore that the first ee-
ment is no order has been based upon the State
| Laws, i. e the Laws Of South Carolina modified
| by Acts Of Congress- Another point ID consider
ing it as to the qualifications OF jurors me only
point then to be dealt with is the first part OF the
! order" 1st l~
/ The question 10 be considered Is the qualltica-
tion under the laws OF South Carolina, as modlned
| by the Acts of Congress. By the laws OF Congress
jures had to be drawn BY the laws OF the state
unless otherwise changed by Congress. The DIFF
fcuty arises in the fact that We are not IN the re-
! gular condition conceded BY all. At the close OF
| the war no legal government existed IN South "a
rolina; no official had taken the oath OF allegiance
to tie United States, and the Court required that
oath. 1t was not possible for the Legislature,
Judges, etc., to be in conformity to the Govern
ment Of the Constitution, unless they had taken
an oath 20 support it; there was consequently no
legal government in South Carolina. =.
| The President having deposed the Executive OF
the State, who held Office in hostility to the Gov
ernment Of the United States, appointed pro-
yisional Governor OF South Carolina. In 30 lar as
| the Executive Of the country had the power 70
restore the State Il the Union 1t was restored.
This brings up the question whether one oranen
| of Government could do things binding on the
/ State and country, and the question Whetner ne
could do it without the consent or congress,
which is the political depository. In my Judg-
ment the President could not do this. The Coy
ernfneut, so far as; Congress is concerned nave
never accepted the State as restored to the Unl0n
they have done tentative acts, but nothing nnaiy
The State is in q provisional condition Under
disabilities the Constitution of the State is, there
fore, only permissive by Congress, and 1t ls com
petept for the people to accept the State as Gait
fornis was accepted, and whenever the President
and Congress unite upon policy IN regard 70 our
admission to the Union we wiu nave n1ea s.atuS ,sr
Until so accepted by Congress We cannot nave ouI
old relations or authority as State IN the Union
One of the counsel said the work OF the Govern
ment was restoration. l accept that as true rs 1ai
as that possible, but the past cannot be res!orea
since the legislation Of Congress Of 184O and the
last Constitution Of South Carolina the negro has
become free by the sanction OF the State; 80 Iai
he has become freeman and voter, that Is =. %
say under the provisional government, whlch, 10!
the time is the supreme law and Constitution OF
South Carolina, Until the acceptiOn Of the State
by Congress, it is necessary to have some torn o.
provisional government, end the question is what
Judge is to do at such time and under such
condition OF things. The two elements required
by law are that man should be citizen and as
sessed for property. Some negroes in this State
have property, and are voters, and as property
holders and voters are put upon the panel.
Now, is tie law Of 1910 satisfied; II not satisfied
in letter it is in substance How is Judge to act
in regard to citizen who is voter under the only
/ existing Government 2 How esnsa Judge deny
4 him seat on the Jury q II there is any Govern
men in South Car )lins over the Law of Congress IL
the transition state in which We now are, the Act
of 1s40 must bind; but, as q Judge am pound te
such legislation OF The State as is unchanged by
Congress and the Acts Of Congress-. The Umtec
States Government recognizes the State Govern
ments except as changed by Congress. In my
opinion Congress has done that Wnlch imPne; i,e;
such change, and imposes on the Judge duty
which he cannot escape, duty to conform MI
ruling to the deductions which are inevitable
rom the Government existing at the present
time.
made the colored man a citizen and voter, h'
having the proper State qualification, has righ
10 sit on uries in the Provisional State. Under tht
Law under which We at present live, which is para
mount, the negro has right to vote for all ofhcer
and taken in connection with the limitations o
the State Constitution not set aside by Congress
he has right, as property owner, to Sit as Jury
man. It is essential that provision should o
made for ihis particular condition OF things. NJ
one can say now long IL VIII enuuis, anu ~ ~ ~
meanwhile provision should be made for the actua
condition growing out of the absence of constitu
tional government, accepted as such by the Coy t
ernment of the United States, composed OF I'M
Executive and the Legislative, the proper deposl
tory Of the Judicial power Of the country Il !, !
desirable that iuries should be well orga1nllzsd
State provision is only that that ba sfO"a 6oae 49b Wb
sit ON iuries should be able to read and write
Tne law mas made no such requisitIon, The onl
requirement is that persons should nave ea@en
should be- thar iures should have such quahhca
ton as any man would demand in an arbitrator.
Only such men have been summoned as The laN
allows. The present condition has found aecep g
tanee By the Judiciary OF this State. ana Dy th n
Judiciary of the United States, aud recognized D.
Chief Justice Chase
The first act Of Chief Justice Chase in Merit
Carolina was to order his marshal to summon
, mixed jury. The case cited by counsel was trle'
by mixed jury. So far as this Court is cor
cerned the law is settled, and the question cal