Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-25

ton, assemblies, there is no Legislature
there is no law-making power. Having
thus far looked into the organization Of our
legislative assemblies, and ascertained, as
itwould be impracticabIe toprocnre the at
tendance of each member, what proper
tional part is vested with the power of the
whole, let us now ascertain what acts our
constitution authorizes and permits a num-
Der less than 4 quorum to do. 1t will
readily be admitted that it can make no
laws; and it is also evident that il can do
nothing unless especially authorized by
the constitution, or by some law previously
enacted. While our constitution under-
takes to declare that a quorum can
and may do all things necessary and
constitutional in the way of legisla-
ting, and can in fact do all things not
prohibited by the constitution of the State
or the laws and treaties Of the United
States, it has not left underlined the powers
of smaller number than Quorum" but
declares, in Sec. II, Art. I'd: "but smaller
number may adjourn from day to day and
mag be authorized by la'0 10 compel the attend
ance of absent members"
concede that the proper construction
of this section involves the entire question
of law presented for the decision Of this
court.
a similar section to the above is put into
the constitution of all the States of the
Union. The constitution of the United
States provides that a smaller number than
a quorum ''may be authorized TO compel
the attendance of absent members in such
manner, and under such penalties, az each
Honse may provide" This clause leaves
the whole question in the hands of each
House, both as to the manner" and the
penalty" and whatever rule each House
may pass upon the subject, or whatever
order each House may make, that rule
and that order can be enforced by a Smaller
number than quorum If neither House
had made any rule or order upon the sub
iect, then there would be no power given
to be exercised. We cannot hope to find
any precedent arising from this quarter
then that will enable us to arrive at the
meaning and intent Of our own constitution
The constitutions of most of the States
follow the constitution of the United States
in this respect, and lodge the power of
compelling absent members to attend in
| each house.
The constitution of Pennsylvania pro-
vides that a smaller number than quo.
rum "may be authorized by Iaw to compel
| the attendance of absent members, in such
manner and under such penalties as may
be prescribed" Kentucky and Ohio have
similar clauses to Pennsylvania. Louisi-
ana has a similar provision, but uses the
| woId shall' instead of may" making
| the sentence read, "shall be authorized
by law" etc. etc. Now the constitution
| of Tennessee is the same as that of Penn
| sylyania, Kentucky and Ohio, az far as it
| goes in this respect ...
Now, if we can find what construction
conrts, or distinguished law writer's, have
| put upon this clause in our constitution,
and similar clauses in the constitutions of
! other States, then we shall have put our
selves, as it were, in the shoes of the re-
spondent, for it was to these law writers he
had to look in making up his Judgment
or opinion upon the question and, if in
following them, he has committed an
error and crime that demands his
impeachment, how infamous mnst they
be, aad your denunciation of him
must necessarily, in theory, extend tc
them as law writers and commentators tc
whom the youth of the country are referred
/ and whose books are placed in the hands OF
/ every student of law Che of Massachu-
sets most distinguished scholars and Law
| Reporter of the State and commentator, in
his work on the Law of Legislative assem-
| blies, sec. PSI, page 80, referring TO thi.
/ clause in the constitution of the State o
| Tennessee, SAYS: Clauses Of this descrip
| ton, authorized the Legislatures of ia,
States in which they prevail to prortR
| beforehand, by law, that each legislative a.
sembly, though containing less than {
| quorum may compel the attendance of it.
/ members and the authority may az wei
| be exercised 80 as to relate to the first as
sembling, or after the constitution of tn,
assembly When this is the case, if tn,
| requisite number do not appear, those whC
| do, may, of course, resort TO the measure
| proUided by idu to compel the attenadnc,
| of absent members
| Again, at sec. 2j5, page IS, he says; 81
on the day appointed for the meeting, the
| requisite number of members is not pres
ent, those who attend can only adjourn
until the next day, and so on from day t.
day, until the requisite number appears, oil
| a Propagation or dissolution takes place
/ unless a smaller number than a quorum
should be expressly authorized to compel tn,
attendance Of absent members
Here, then, may it please the court, w
present the opinion of an able lawyer,
distinguished law writer whose book ha
been appealed to throughout this proceed
ing more than once by the prosecution, anC
| to which all have submitted.
| Can the gentlemen on the other sid,
produce an authority of any responsibility
whatever, giving an adverse construction
] Of this clause If not, then we have q
least, the weight of authority and the ad
vantage of precedent,
/ When you look to the clause itself, auC
read it, can you give any other constrIc
ton to it Throw it down before an hun
bred lawyers or intelligent men, and ever
/ one will read and construe it the same way
| But suppose they should differ, and fft,
should construe it one way and fifty tn
other way. Are either fifty to be held a
| criminals and scoundrels?
| But, gentlemen tell us that the matte
! upon which His Honor, Judge Frazier
was called to give 4 judicial opinion, was
matter of vast moment and deep concern
that in more than an ordinary degree, il in
| volvedgraye consequences. So be II. And wa
il not so regarded by him Were not abl
and learned counsel heard by him will
patience and anxiety? Were any refuse,
an audience who desired to speak? Wa
not his own opinion carefully considere,
aud prepared? Was there manifested b.
him any want of gravity or seriousness
He had not made the law suit, but wa
forced 10 decide il. He had not made tn
law, but was forced 10 declare it as he hon
| estlv believed il 10 he
A citizen Of the State-one, too, whom
! the proof shows was not wholly unworthy
but who for four wears of war had born,
| himself as aisodier-appeGled to a COur
| Of the State, alleging that he was Illegal
| deprived Of his liberty, that unlawful re
| straints were put upon him, that he ha,
been stricken down, and now begged al
| intercession in behalf of his personal lib
erty of one of the courts, TO establish
: | which he had borne a soldiers fortune an
taken a soldiers fate.
+ What a mean and contemplate thin
, / Judge Frazier must have been had he re
| fused to hear this petition. How IN
? | worthy to be trusted with an Office tn
functions and powers Of which are 10 pre-
tect the citizen.
Had he turned pale and quailed befor
} ! any authority, however great, howeve
bold and defiant, from a discharge Of hi
r duties as an officer, he had been worthy Z
{ eternal ipfamy and disgrace.
, know full well that the power Is lodge
! in vour hands by the constitution to stink
! this mans name from the roll of the oil
| II - .4