Year: 1866

bunal. 1t could not arise under the English


system, where Parliament is without the re-


straint of a written constitution, and where


such constitutional provisions as are sup
posed to exi t, rest only in the bosom of the
: very body which can alone announce and


construe them. And in entering upon the


discussion of the questions submitted to the


Court in this case, it may be promised that


these questions do not in the least affect the


validity of the present State Government.


The Court recognizes the principle that the
Judiciary is subordinate to the political pow


er, and has nothing TO do with its rightful-
ness or wrongfulness. It accepts the au-


thority of the Government behind which it


holds Office as an ultimate fact behind which


it cannot go. Until changed by the people,


it is eutitled to, and should receive our obe-
dienee. Itmay. also be added, that indie
terrnining the grave and important ques-


tions submitted for It's decision in this case,
it ought not to be influenced BY any consid-
erations growing oUt-of the policy or impoli-
cy, the wisdom or want Of wisdom, III the
lpassage of the law brought in review
| Whether it is fraught with blessings to US as
people, or comes laden with disorder, are
not questions within the jurisdiction Eof
courts Of justice; such questions must be left
to the decision of another forum. We have
only to deal with the question, whether the
law which We are called upon to decide, is
in conformity with the fundamental law,
which the Government has prescribed as a
guide for its several departments. The very
constitution itself, under which all depart
ments act, may imperatiYely require the
courts, to inquire and see whether one de-
partment has thus conformed its action to
this constitution. And if satisfied of this
fact, this Court cannot hesitate in the course
it will pursue.


1t is insisted by the relator in this case
that, the exceptions and qualifications Of
the elective franchise, impaired BY the act
of the present General Assembly of the
State of Tennessee, known as the fran
chise act" are unconstitutional and void,
and that although he may fall within the
number or class therein specified, still it is
the duty of the respondent as register of
votes of the county of Rutherford, to regis
ter him as a voter, and issue to him a GER
tifcate, as required by the duties of his
| Office, and the respondent having failed to
| perform said duties, this Court is applied to,
in order to compel by proper process the
issuance of said certificate to him. 1t is
admitted by the pleadings, and conceded in
the argument of this case, that so much of
the act of assembly as creates the Office Of
register Of votes, is constitutional and valid.
is also conceded that the respondent is
the legal and duly qualified officer under
said act. At this point in the investigation
and for the present argument, the Court ac-
cepts these admissions and concessions to
be true, the Court being fully satisfied both
from reason and on authority, that one part
of an act of assembly ma Z be constitutional
and another part of the same act unconsti-
! tutional. The Court is also satisfied, that
independent of a special grant of power in
the constitution, to the Legislature to create
| such an Office that the Legislature possesses
| it, by virtue Of its general powers as Legis-
| lature. But then is any part of this act of
assembly unconstitutional and therefore
| void? This is a question at all times one
of much delicaey, and which should be
weighed well before being decided in the
affirmative, it should seldom if ever be so
decided in a doubtful case. Whenever it is
clear, and indisputably against the flnda-
mental law, and the court is thereby i'm
PEELED to so decide it, it would be unworthy
of It's station, could it be unmindful of the
solemn obligation which that station i'm
poses. But it is not on slight implication
and mere conjecture that the Legislature is
| to be pronounced to have transcended its
powers, and its acts TO be considered as void.
| The opposition between the constitution and
the law should be such that the Judge feels a
clear and strong conviction Of their incom-
| patibility with each other. (6 Cranch.
33l.) rE 1rr I'd


In determining this question, we assume
as premise which cannot be coatroverted
that, the amendment of the constitution un-
der which this act is soughtto be established
and held valid, was the act of the sovereign
people of the State of Tennessee, that the
Legislature which passed the act if they had
not forfeited their right to be called Legis-
lature, were invested with full powers to
carry into effect the amendment-ef the Con-
stitution which had been adopted and rati-
fed by the people. Under this assumption,
the question for our determination is mar
rowed down to an examination as to what
were the powers delegated to them in the
amendments. And have they in the pas
sage of the act referred TO tanseended
those powers?


In the first place, suppose they have cons
ferred upon them, all the powers which the
people themselves, would have were thev
! assembled in convention. Have the people
| themselves, the right or power to denv
" free white man of the age Of twenty-one
years, being a citizen of the United States,
and citizen Of the county wherein he NAV
offer his vote, six months next preceding
the day of election" and who has not been
convicted of an infamous crime, the privi-
lege of voting 1t is provided in section
eight of the bill of rights " that no free man
shall be disseized of his freehold, liberties or
privileges; but by the judgment of his peers
or the law of the land" 1t also provided
in section Of the same instrument, "that
elections shall be free and equal, and also
in section II, that no er post tacto law shall
be made" The constitution provides in
section II of article XI, "The declaration
of right hereto prefxed is declared 10 be
part Of the constitution of this State, and
shall never be violated on any pretence