Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-19
TEST OATHx, AND THE FRANCHISE
LAW or TENNESSEE.

TEST OATHS, AND THE FRANCHISE
LAW or TENNESSEE.
NO. 2.
HIf the Convention Of 1865 INTENDED
to empower the Legislature to chang
the Constitution, and to snnul the righ
of eighty thousand men to vote, TO whom
fhe Consultation guaranteed that right
and from none Of whom, under it. eoulc
the right be taken away, except upoI
conviction of an infamous crime, eOttto
It delegate that power to the Legis'
lature ?''
We were compelled to pause, yester'
day, at this question, for want Of space
We do not apologize for the length Of
this discussion. We edit the APPEAL
pro bono plt5lico, and not for cur own
profit; for we starve st 1t. We have
not concealed the fact that we thought
our opinions of some value, and entitled
to weight and consideration. Every
man, we suppose, thinks so Of bis own.
Every public speaker and every editor
does, or he ought not to speak or write.
We st least give the public, for the pit
lance Of 9 crust and cruise of water, the
mstured reflections Of thirty years. If
they are worthless, Others have been
mistaken before Us, and many will be
mistaken in the same way, after US.
When the Constitution framed by the
Convention Of States in 17S7, was sub
mitted to the States, by the Delegates OF
States, for individual ratification by
each State, It was thought that the Leg
islGtures were not clothed with the power
70 surrender any OF the sovereign pow
ers Of legislation OF their States, that
they might no longer be exercised by
each severslly, but should be exercised
by each jointly, by one agency created
by them, and whose action was TO be the
action of all. Therefore it was required
that the assent of each State TO this
mode Of the exercise Of its sovereign
powers, should be given by each State in
the only authoritative manner that could
commit it to such 3 restriction of Its fu-
turs separate action, Convention Of its
people.
1t is not to be presumed that the Con-
vention which spoke the sovereign will
Of the free, sovereign and independent
State of Tennessee meant to invest the
Legislature with the power Of making
amendments to the Constitution. Could
Ii do so, if it so intended? II it could, 1t
could hare empowered the Legislature to
make 1e,g Constitution, a6 oUo ISgUs adj
TlGlG, from the preamble to the anthem
ticstion. Concede the power Of the Con-
vention to delegate to the Legislature
the power to add one clause to the Con-
stitution or strike one from it, and you
eoneede its power to authorize the same
body to make complete Constitution,
changing the old one at its absolute and
unlimited discretion. Can we concede
that? We, for one, caRnot.
Delegdt1Es not POtest deLegdre, is s
maxim to which there are no known ex-
ceptions. When the people empower
convention to make or amend q Consti- |
tuition, there is personal trust and COZ
fidence reposed in the members and the I
body, which cannot be delegated. The 4
people have not authorized it. They /
hANC AOA 6cACCsCA A1C A1CLLDEI5 Vi tue D
Legislature for that purpose. A trustee
10 sell must himself make the sale. He
cannst appoint another to do it. The
principle is 50 broad as that; and what
trust is there in the world, as to which
% much confidence is reposed in the per-
son, IS that of making a permanent
Constitution for 8 StSte,-an immense
power, s sacred trust, so easy to be
abused?
The principle is general, in public as
well ss private affairs, nay, more per-
emptory in public than in private affairs,
that an agent cannot delegate his dis
erection, but may do any mechanical act
by deputy. An attorney appointed by
deed cannot delegate his authority to 8
third person. Mason q. Joseph, Smith
4O6; Com. Blk. Of Lake Erie q. Norton, l
Hi sos.
In Lyon u. Jerome, % Wend. ass, this
question was considered as to public
agents; and the Court held that " In all
cases Of delegated authority, aChere per-
soaldl trust or confidence IS repOsed IN the
agent, and especially where the exercise
and application Of the power is made
subject to his Judgment or discretion, the
authority is purely personal, and cannot ;
be delegated to another, unless there be
q special power Of substitution And, ,
- Senator Verplsnck said in that case,
the reason and policy Of the rule apply
much more strongly to the deIeg alton of !
authority by the State, to its high public
officers, made with the solemnity Of q
legislative act. The highest powers that !
; State can confer, are those conferred !
on 8 Convention to frame 3 Constitution.
How, then, can it delegate these DOW
srs? How, especially, when the Cons.i- :
.ution itself provides the mode of its
amendment, and it never was imagined =
hat any other mode could be adopted. :
Except the direct action Of a Convention .
representing the people itself in Coun- q
IL?
We do not say that the Convention q
.otiJd not give the Legislature power TO +
X the qualifications Of voters and the
imitation Of the elective franchise. We ii
MY say that it could not empower them Il
o make their enaetments part Of the .
Constitution; and that any subsecyent n
legislature could repeal and can repeaI n
THAT the first one did. The 9th section a
4 the schedule simply transfers to the o,
legislature 50 much Of tie power which IL
be Constitution had reserved TO be sx- al
rcised by the mode OF amendment pro- @
ided BY itself. 1t simply puts the sub %
'ct within the domsin of the ordinary Iii
'gislstiye power. 1t could do that. bnt a,
could not delegate to the Legislature p
be power to make one article of the q
constitution; for If it could, it could have ~
elegated the power of making a Consti- a.
ltion complete. State Constitutions are .,
OF grants, but limitations Of legislative ~
over. What is not forbidden, ia tbers- -
re permitted, to be done by legislative ~
IT. The 9th section merely removes a a.
Of the Constitution, and leavos -
ls question Of franchise to the IeOisIa. a.,
We mower