Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-07-29
THE FRANCHISE ACTS AND THE So
PREME COURT


PREME COURT
An article in the Brownsville Bee Of
July 10, containing some pretty sharp
structures upon the Supreme Court Of
Tennessee for its delay in hearing certain
cases involving the question Of the con-
stitutiOnslity of the franchise act Of May
5, 1866, has attracted our attention, and
induces Us to sllude to the subject, and
to reproduce in substance a portion Of
the article.
The first act limiting the elective fran
chise, was passed on the 5th Of June,
1865, under the authority conferred by
the ninth section Of the schedule an
nexed to the Constitution, and which it
is pretended was ratified on the 22I Of
February, 1864.
Under this act, person who could not
vote, was nevertheless competent to hold
office, the oath necessary to enable him
to do so being rather prospective than
retroactive, and not like that required to
enable one to vote.
HTo remedy this and other shortcgu-
ings, a second franchise act was passed
Oh the 81 Of May, 1866, q day Of the
second session OF the General Assembly,
which began On the ID Of October, 1865.
Under the first act, gentlemen were eli
gible TO office; Confederate soldiers IN
der the rank of Captain could vote after
the lapse Of Eve years from the date OF
its passage; the Governor had no power
to annul registrations and the certificates
granted by Registrars the negroes could
not monopOlize the polls, hold Office or
sit on juries. Under it, the Bee ssys,-
There would have been no political
gatherings, and bsrbecues during the
summer and fail, filling him with lies
and his crops with grass; there would
have been no organizations OF Lincoln
Councils, Loyal Leagues, Grand Armies
Of the Republic, or United Sons Of Ham
10 disturb pescesble citizens Snd make
night hideCus by their Internal orgies,
bands proving about armed with shot
gun and pistol: there would have been
none OF that fearful apprehension OF
blOOdshed and carnage in November
next, il not before; during the summer,
all county offices would have been filled
incumGents not daring to hold on, after
the regime under which they were elect
ed, had been declared null and void.
Order and good government would have
been Instituted throughout the State, and
above all, the Democratic party could
have triumphed at the November cleo
ton, and Old Tennessee stood forth re-
generated snd disenthralled.
The question at once arose, Of course,
whether the Legislature had not ex-
hsusted its power by the passage Of the
first franchise act, and whether that had
not become a part Of the Constitution,
and beyond legislative reach. II SO, the
second act was simply void, for want OF
power to pass it.
Another question is, whether the power
given by the schedule, to the first General
Assembly that should convene, " to fix
and define the qualifications Of voters, +"
was broad enough 10 cover the admission
Of ell the free negroes and mulattoes OF
the State TO the rights OF citizenship.
Certainly power to fix and define the
qualifications Of voters, Is not power to
make those citizens who were not citi-
zsns before. The Supreme Court Of the
State had decided, before the war, that a
negro or mulattO emancipated did not
become q citizen OF the State. In Whist
ever wsy the emancipation Of al wa
effected, it is quite certain that those so
freed became exactly what free negroes
were before the war, and no more, They
were not made and could not be made
citizens of Tennessee by any action OF
Congress nor by any mere legislative
action of the General Assembly of Tenn
essee; but only by an amendment Of her
Constitution, or an act ofthe Legislature
that would by virtue Of the schedule, be-
come part Of the Constitution. No power
to pass such an act was given by that
schedule. To incorporate into the body
polite as citizens a mass of persons of
an alien and barbarous race, and lately
slaves, is g very different thing from fix
ing and defiRing the qualifications which
citizens known TO the Constitution shall
possess, to entitle them TO vote. One is
law discriminating among citizens, and
determining who among them shall eX-
ercise privilege and franchise not nee
essarily incident to citizenship. The
other is TO confer citizenship, which
could be done, if at AL, without giving
the right to vote-and this, of itself, de-
monstrates that it is not power inclu-
ded in the power TO fix and define the
qualifications Of voters.
A power delegated 10 the Legislature,
10 add 10 the Constitution: must Of course