Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-07-29

empowers that Department to fix and
define the qualifications of voters, 1t
gives the power to do that only, and not
the power to make citizens, in order Of
ter1OGrdS to exercise as TO them and Tor
their benefit the power actually granted
The power to add new citizens g those
already invested with that character,
either out of the people Of conquered
States, or Of slaves emsncipated, Il as
high and grave power now as it was
in Rome, and cannot be exercised by .
mere majority, through the Legislature,
against the consent of the minority, who
can say that they had entered into no
such bargain by the Constitution TO
which they had assented; but it can
only be done by Sovereign Convention
Of the People, whose action binds all,
being that of the people in their primary
capacity. And this is all the more
strongly so, when the mass Of persons to
be added are Of another color and Of an
inferior and savage race.
Moreover, we utterly deny that the
Convention which adopted the schedule
could delegate the power to the Legisls-
ture to make provisions that should be-
come parts of the Constitution. That
instrument itself provided how it should
be amended: and certainly such was
not the prescribed mode. Besides, "de1e-
gGtus non potest deyegaTe, lone to
whom 3 power is delegated cannot dele
gate it to another.
The Legislature, therefore, in enacting
the franchise laws, exercised nothing
more than the common and ordinary
powers Of legislation, and those acts are
simple legislative enActments, not part
Of the Constitution, and repealable at
any time.
The Bee says:
There have been several a6judications
at nisi priUs, upon points involved in its
I operation, and brought up by appeal TO
I the Supreme Court. The case Of staten
VS.. the State, tried before Judge Rogers,
involved the question whether the Gov
ernor Of Tennessee has the power to set
aside registrations duly made under the
various registration acts, and whether
the Legislature had the power, under the
Constitution, to confer such authority
upon the Governor which is assumed to
have been doEe by act CT February 26-h,
1865. His Honor, the Circuit Judge,
held that said act was unconstitutional,
and prOclamatlOns setting aside r6gistrs-
tiOns were void.
The Supreme Court Of Pennsylvania
has decided the Registration laws of that
State null and void, as in derogstion Of
the free and full right of the citizen to
vote, given him by the Constitu.
ton. We entertain no doubt
that on that aud other grounds, the pro-
visions of the Tennessee statute as to
registration are utterly null. 1t is GER
tsinly so, in so far as it requires a test
oath and empowers the Registrars to sd-
minister it, and to refuse to re g,steT those
who decline to take it. A vested right
to vote is a franchise, and franchise is
property, of which no man can be di-
vested except by judicial proceeding.
No Judge has dared to directly deny
that, since Lord Holt held that an action
lay in favor of one entitled to vote,
against the officer refusing his vote; and
in asserting that right, defied the whole
House Of Commons of England. An
Englishman's vote, he said, was his
birthright, and if it were denied him he
should have his action on the case.
The Bee further says:
In the case Of Summers vs.. Crawf ford
ct al, from Weakly county, the plain
tiff, Summers, had obtained certificate
Of qualification to vote under the first
franchise act OF June 3, 1865. At an
I election held subst quent TO the passage
I Of the second franchise act, he offered to
vote, producing his certificate Of regis
tratiOn, but was disallowed by the judges,
whereupOn he instituted suit against
/ them, for so ruling. He proved that he
7 had lived in the county for twenty years,
I had never been convicted Of any crime
I OF misdemeanOr, and had always been
an unconditional Union man. The
questions presented, in this case, were
/ whether the first franchise act did not
7 become q part Of the Constitution of the
/ State when it was promulgated, and If
] so, whether the Legislature could alter
I or amend the Constitution; Rnd whether
/ il did not become q law to the Legisla-
T ture, and above then control as soon as
T they bad executed the trust delegated to
them by the Convention, by the prOmuI-
cation OF the same, and their immediate
3 adjournment. There was also a case
I from Memphis, involving similar cues
tons, with additional ones, and to save
time and labor, it was agreed by eOun-
sci, with the permission Of the Court,
/ that all of them should be consolidated
and heard together. When first reached
on the docket they were continued st the
instance OF the Court, because OF the ab-
sence Of Judge Harrison. The counsel
. engaged entered no objection.
Judge II. finally assumed his seat on
/ the Bench. Counsel waited patiently,
but no intimatiOn came that the Court
/ were ready to take up these cases, where
T upon they inquired Of the Court when it
would best suit their convenience to hear
/ these causes, and receiving no sstisfac-
tory answer, began to suspect that some
thing was wrong, and, with due defer
ence, urged upon the Court, that owing
TO the magnitude Of the questions in
/ VOWED, aud the great interests of the
people which, at this cOnjuncture, were
81 stake, much depended upon action
being had at this term of the Court-that
these causes should, by all means, be
heard, ami the veXed questions Of fran
chise and registration be finally settled
in the proper and legitimate way.
The Court, the BSe alleges, refused to
allow the cases to be heard, notwith-
standing the earnest entreaties of the
whole bar. IL denOunces this refusal In
language that we will not repsst, impu-
ting it to 8 timid dread of assuming re-
sponsibility; and which We hope does
that tribunal injustice. We have heard
the Court spoken Of with respect, by dis
tinguished members Of the bar, and we
hope it is entitled to it. We cannot con-
ceive OF a Judge, fit to wear the ermine,
dTeadiDg any responsibility, except to
God and his conscience. Judicial station
tends TO exslt and purify men and we
have seen partizans and men OF extreme
views, when placed on the bench Of the
Supreme Court Of the United States,
make impartial and unprej1dioed Judges,
and in the Magistrate we have forgotten
the politician. So it was, among others,
with Chief Justice fancy and Mr.. Justice
/ Campbell.
We know but one Of the Judges Of the