Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-08-18

ting this power, l might even admit It t
be an exception to- q rule otherwise uni
versal, and not affect the validity of th,
rule. But is it an exceptions Does il
not stand upon other and differen
grounds, different from those embraced
by the ruler Is it not case of s1ci ge,a
| eriS? i''1
Ia all civilized countries, whether with
or without written constitutions. some
| age has been assumed at which men are
to have control of their actions. their
property, and to exercise rights and
privileges as members of a community.
This is e1 rel SaeceSsitGte; it is automatic,
an ultimate truth, that an infant can not
be safely intrusted with any of these
powers. Some age must be fixed at
which these rights and powers may be
safely exercised, one for one power, an
other for another power. Experience
fixes an age to-day; further experience
determines this age to be too much or too
little advanced. 1t IS matter of regula-
ton, subject in its nature to alteration.
1t is a matter for delicate handling !, the
provisions in regard to it may or NAV
not be inserted in constitution; if in
serted, they should not be immutable,
even for an existing generation. A.
change, if made; should apply (as it
always does) to all none should be sim
gled out; the change should have and
never has any reference to acts or
conduct. An exclusion founded on age
is, at the utmost, mere suspen-
sion or delay of the exercise of rights,
powers and privilege which experience
may have shown to be wholesome or nee
essary. In different countries different
ages have been assumed both as to gene
raj control of action and as to holding Of
fees; and these have been changed from
time to time without dispute. The uni
versal and unquestioned exercise of this
power of change fixes itby acquiesence as
a LaagfM pOOer. And so, whether it be
regarded as rule SUI ge'aeris, or an ex-
ception to rule, isimmaterial. Does the
Fourteenth Amendment Gas construed by
some) stand upon any such groundG Can
it plead any such prescriptic19 And is
there any true analogy between the casesa
In the limit of age no one is singled out;
the exercise of right is only delayed; no
censure is implied, and the wisdom of ex-
perience is applied in the establishment of
a general rule. In the Fourteenth Amend
ment, on the contrary, individuals are Sc
lected undiStinguishable Gin law fromany
others, belonging to no class recognized
by law, and arbitrarily denied some of the
rights of citizens, these rights, too, are
denied in .1oerYetU0. The acts, profes-
sedly the ground of their exclusion, are
extinct by pardon and prescription, and
are as if they never were. "a s.-e
. The above argument is intended to be |
applied to the case of the Hon. A. o. p.
who has been recently elected |
one of the Judges of the Supreme Court |
of Tennessee. 1t is charged against him
that, being or having been a member of
Congress, and having taken the usual |
oath to support the Constitution of the |
United States, be engaged in rebellion, or
gave aid and comfort to the enemies of |
the United States. The facts as here
stated and charged are not admitted by
Mr.. Nicholson, and it is admitted by |
those who make the charge that the of |
fense, if committed, is prescribed by the
act of Congress of 1890, and that DIR.
received the pardon of the
President before the adoption of the
Fourteenth Amendment. In this state of
the case Mr.. Nicholson applies to the Gov
ernor of Tennessee for commission. Can |
this be rightfully refused2 Now the |
granting of a commission does not settle
the absolute and final right of the party |
commissioned to the Office. The Governor
is bound to act upon prima facie case,
and his commission only makes prima
facie case in favor of the party commits |
stoned. What makes prima facie casel
The certificate of election and the identity
of the applicant for the commission. /
are well settled principles. Then
the Governor cannot inquire into the
question whether Mr.. n. is excluded
by the fourteenth amendment or not;
this must be left to quo IOGrrdrtO, if |
one shall be brought. By the very nature
of things, the Governor is excluded from
such an inquiry. He is not court and
Jury to determine questions of law and
fact, and especially questions so difficult
and intricate as those presented in this
case. He would first have to determine
whether he or any one anywhere could
INQUIRE into the facts. / deny that they
can be inquired into at all. 1st. There is
no mode of proving them but by con-
viction of offense by criminal prosecu-
ton. This has not been done. 81. All
proof of them is now impossible by the
of the act of 1890. Sd. Mr..
Ms pardon extinguishes the very acts
as offenses against the law,
and they become mere dead facts, caput
mortuum, which can be looked at for no
legal purpose. To refuse the commission
would be an assumption on the part of
the Governor to in1ict q punishment, as
under ''blll of pains and penalties,
which cannot be done by any lawful au-
thority. See the cases of Cummings and
Garland, above referred to. 1t is admit
ted that this could not be done directly in
any court because of the prescription and
pardon; can it be then done cOllaterally9
To say so is to run a muck against all the
rules of logic, law and reason. 1t is to
make the minor include the major.
But suppose the facts and law above
alluded to may be examined in court
upon quo warranto; still the Governor
can have no authority to do so, Suppose
the construction given to the Fourteenth
Amendment by those who deny Mr.. N g
right to the commission be correct, and
suppose the Governor be forbidden to is
sue a commission to one under disability,
is the Governor to constitute himself
Judge and jury to try the facts whether
Nicholson did engage IN rebellion or give
aid and comfort to the enemies of the re-
public or not; to settle all the difficult
points of law that might arise as to what
constituted engaging in rebellion" or
''giving aid and comfort, n etc., to exam
inc witnesses and decide incidental points
of evidence, and at least to record YER
dict and predicate Nicholson's exclusion
thereon? This cannot be. If the Governor
be prohibited from issuing a commissioner
one under disability, it can only mean one
who has been elsewhere ascertained to
be guilty, by some verify, some record,
Such, as l have heard, is the opinion OF
Chief Justice Chase expressed at Rich
mond in a case before him. Think of the
Governors having to try all of the cases
in the State that might be presented to
him under the Fourteenth Amendment,