Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-06-15


am aware that a decision has been recently
made BY ourown Supreme Court, which is
regarded by some as final and an authori-
tative settlement Of the question, but which
/, most respectfully, maintain has no such
obligatory force, because the question, in
part at least, involves a construction of
some of the provisions of the national
Constitution, an can not beconclusively
sdindicated until it is determined by
the Supreme Court of the United
States. In approaching the considera-
ton of this question it is not my purpose
to impugn the integrity of the court, or to
repeat the charges which have been made
in the newspapers as TO the circumstances
under which the opinion was delivered.
Considering the large number of cases
before the court, the only wonder is that
they have made so few erroneous decisions.
| IL is to be regretted that on great public
| question like this we have little more than
a mere statement Of the case and the con-
| clusion of the court without any satisfactory
exposition of the reason upon which it was
founded. This may be owing to the fact, as
intimated in the opinion, that the case was
brought before the court and had TO be
disposed of when the Judges were much
pressed for time and near the adjournment.
And yet, in py view, the question involved
is by far the most important question that
ever was considered by that tribunal.
After ably arguing against the decision
of Judges Milligan, Hawkins and Shackel-
ford, and applying to tie question the
principles laid down by the Supreme Court
of the United States, it is added:
You will thus see, fellow-cit liens, that |
am not urging or relying upon my in
dividual opinion in opposition to the opin-
ion of the Supreme COu of the State,
but oppose it with the opinions of the Su-
preme Court of the United States, which
are of higher authority than that of our
own Supreme Court, no matter how re-
spectacle that tribunal may be. And now
let us apply these principles TO the new
franchise law, passed at the last session of
our Legislature-I mean the law passed on
the Sd of May, 1866, for they held SO many
sessions, and done so little good, except in
their internal improvement measures, that
| do not know the number, and am really
unable to tell you which was the last.
And the first act to which / wish to call
your attention is, that at no time before,
nor at any time during, the late civil war
was there any act Of Congress declaring
that any person who was guilty of treason,
or who had been connected with the re-
bellion, should forfeit the right of suf-
frage. If there had been such a law, every
good citizen should be willing to see it
executed, and no Rebel could complain of
it. But | repeat the assertion, and DEFY
any man successfully, to contradict it, that
there was no such law in existence, State or
national. The crimes act of Congress, passed
in 1870 declared thatany one adiudged guilty
of treason should suffer death, and that
any one adjudged guilty of misprison of
treason should be imprisoned, not exceed
ing seven years, and fined, not exceeding
one thousand dollars The act of Congress
commonly called the confiscation law,
which was passed during the rebellion and
on the 18th of July, 1862, is in some re-
spects milder law than the act of 1898, as
il leaves it discretionary with the court to
punish offenders with death or with fine
and Imprisonment, and the freedom of
slaves. 1t creates the new Ofenses of in
citing, assisting, engaging in, or giving aid
and comfort to any rebellion, by fine and
Imprisonment, or either and by confis-
cation of property; bat it does not declare
that the Rebels shall be deprived of the
right OF suffrage, or be disqualified from
holding Office
And here permit me to observe that
there is vast distinction between the
powers of the provisional government
which was established in Tennessee by Mr..
Lincoln while the war was pending, and
the powers Of a legislative assembly acting,
in time of peace under the authority of
the State constitution. Nattel said long
ago that every nation is obliged 10 per-
form the duty of selfpreseryation. And
the Supreme Court of the United States
held. in reference to the Mexican war, and
in Fleming rs. Page, reported in 9
Howard, 6l5, that, on the conquest
OF country, the President may es-
tabish provisional government,
which may ordain laws and institute a
judicial system, which will continue in
force after the war and until modified by
the direct legislation of Congress- or by
the territorial government established by
its authority. Now, although the consttu-
ton of the United States and the laws of
the United States are utterly silent az to
what shall be done in case a whole State
or Gordon of States, have been in mill
tary possession of the revolutionary or do
nestle enemy, and the armies of the United
States are gradually reconquering the
country, yet it may be well supposed that
the case is analogous to that of the con-
quest and occupation Of a country during
foreign war. In this view, Mr.. Lincoln
was well Justified in appointing military
Governor over the State and, as the case
is not provided for in the national or State
constitutions, the calling a convention, the |
adoption OF amendments TO the constitu- |
ton, and the election of members to the |
Legislature at a different time from that |
provided in the State constitution of 1884, |
although irregular, may be correctly vim |
dicated on the ground of extreme necessity. |
And as the object was TO restore the rela- |
hons Of the State with the Union soon as |
possible; as a part of the State was still in
military possession of the Rebels when the |
convention was called and as the war was
still pending, and the Rebels had not then |
submitted 60 the rightful authority of the |
government Of the United States, it was |
certainly competent for the provisional |
government or the Legislature TO be called |
together under its authority, to de- |
clare, as they practically did, that no Rebel |
shOuid NOte III the election or mold seat IN /
the Legislature, for the obvious reason
thai, if allowed to vote or to be elected.
they might, by that means, play into the |
hands of the rebels who were still in |
arms, and thus prevent the re-assertion of |
the authority of the United States. But |
when the provisional government was al
an end, when the rebel armies had surren-
dered and become powerless, then the right
ful authority of the United States was re-
established, and the State goYernment~was
in full operation, then the reasons which
arose from necessity, and not from any
authority in the State or national constitu-
ton, ceased also to operate, and the consti-
tuition of the United States and of the
State again became of paramount obliga-
ton.
Now, fellow.citizens, ask you as men of
sense, | ask any honest aad truthful LAWYER
OF any party, 10 say whether it is possible
for the mind of man to conceive any diff
ference, IN principle, between the amended
constitution Of Missouri and the amended
Constitution Of Tennessee and the fran
chise law enacted under it. The one is