The State vs. Wm. Staten.

be seen, the principles involved are not analogous to the principles now before this Court. The question involved in that case was, (and settled by that court,) when a citizen has an office, employment, or calling, the State can not, directly or indirectly, enforce the forfeiture by prescribing an oath, before the citizen can discharge the duties. The decision has reference alone to civil rights, and those guaranteed under the Bill of Rights.

The State, in a sovereign capacity, cannot deprive the citizen of right to labor, and from the enjoyment of the proceeds of his labor, by the imposition of an oath. This, the Supreme Court says, cannot be done, as it amounts to a forfeiture of an estate which the party has in his calling or possession. There is a clear distinction between the case settled by the Supreme Court of the United States, and the case under consideration. The one is an inherent and natural right, and the other, a political right or privilege, a trust delegated. The first falls directly within the prohibitions of the Constitution of the United States; the other is a trust, subject to be revoked by the sovereign will.

This brings us to the consideration of the question before the Court. The defendant, Staten, under the provisions of the Franchise Law, passed May, 1866, was a registered voter. He had, according to the requirements of the statute, complied with the law, and the granting him a certificate by the Commissioner of Registration, has vested him with the right of franchise. Can he be divested of this right by An Act of the Legislature, or by the proclamation of the Governor, acting under the author

The State vs. Wm. Staten.

ity of An Act of the Legislature?

It is insisted that

power is conferred upon the Governor of the State, by sections 3 and 4, of the Act of the Legislature, passed May 8, 1867.

By the 3d section of the Act, the registration of the County of Overton, heretofore had under the Franchise Act of May 3, 1866, be, and the same is hereby, declared null and void, and no person shall be entitled to vote by virtue of any certificate issued under said registration; and the provisions of this Act, shall extend to any county in this State, when it shall be made to appear to the satisfaction of the Governor, that frauds and irregularities have intervened in the registration of voters in such counties; and the Governor shall make known such facts, and set aside such registration. Section 5 provides, any person violating the above sections, by voting by a certificate thus declared void, shall be guilty of a misdemeanor, and shall be fined not less than ten dollars nor more than one hundred dollars. We have shown, the right of franchise having been once vested, the Legislature has no power to divest it. Section 8, of article 1, of the Bill of Rights declares, that, no freeman shall be taken or imprisoned, or disseized of his freehold, liberties or property, or outlawed or exiled, or in any manner destroyed, or deprived of his life and property, but by the judgment of his peers, or the law of the land. The right of suffrage is a privilege; it is a right; one that is regarded by our race of people as more valuable than any other right with which he is invested; it is regarded as more valuable than property, for by it he

The State vs. Wm. Staten.

guards and protects his life, liberty and property; when clothed with the right, he has a vested interest, of which he cannot be deprived by any act of the Legislature. It can only be taken by due process of law, or by the will of the people, acting in their sovereign character. It is a right secured to the citizen, under the Constitution of the State. By the provisions of the Franchise Acts, and Constitution of Tennessee-he having complied with the laws regulating the elective franchise-his rights became vested, and could not be taken away by any act of the Legislature. They have no power to divest such rights; it follows they could not confer it upon the Governor. And the several sections of the Act attempting to confer this power upon the Governor, is without warrant by the Constitution, and therefore, void. It is an attempt on the part of the Legislature to confer upon the the Governor judicial power, which is in conflict with the Constitution. the Governor has the power to set aside the registration of a voter, he has the power to set aside the judgment and decrees of this court. For illustration : If a citizen, under the Franchise Law, entitled to a vote, should bring himself within the provisions of the law, and the Register should refuse to give him a certificate upon a mandamus to compel him, and the Circuit Judge should be of opinion he was entitled to his certificate, upon an appeal to this court, the judgment should be affirmed and the certificate awarded, could the Governor set aside and declare the judgment of this court void? Such would be the legal effect if we should give force to the Act. Surely

If

The State vs. Wm. Staten.

it cannot be supposed, for a moment, under our Constitution an laws of the land, such power could be rightfully vested in the Executive.

war, a voter.

To so hold, would place the rights and liberties of the people in the hands of the Executive of the State. The statement of the proposition is an answer to it: if he has the right he can disenfranchise every citizen of the State. This opinion is not in conflict with the principles settled in the case of Sherbrook vs. Ridley. In that case, Ridley sought to have a certificate granted him, upon the ground of his having been pardoned by the President of the United States, he having been, previous to the The Court held he did not bring himself within the provisions of the law, and was not, therefore, entitled to a certificate. In the case of Sherbrook vs. Ridley, the writer of this opinion delivered the conclusions of the court. No reason was given for the opinion. I now give the reasons prepared in that case, in the case under consideration, so far as the right of the people, in their sovereign capacity, to determine the elective franchise, or to delegate their power to the Legislature, is embodied. It follows, from these views, I am of the opinion, the convention that met 9th January, 1865, and the acts of which was ratified by the people, had the power to limit and determine the elective franchise, and to delegate the same to the Legislature; and that the power exercised by them was not in conflict with the Constitution of the United States; and that the Franchise Act of 1865, and subsequent Acts determining and limiting the elective franchise, are within the provisions of the Constitution; that where the right of

James Galvin vs. The State.

franchise had vested under the provisions of the law, as in the case before the Court, the Legislature had no power to divest it, nor could they confer it upon the Governor, and the Act giving him power to set aside the registration, is void.

It follows, therefore, that there is no error in the judgment of the Court in sustaining the demurrer to the presentment, and the judgment must be affirmed.

JAMES GALVIN vs. THE STATE.

1. GRAND JURY.

Good and lawful men. Presumption in favor of the action of the Court. It appearing in the record, that the grand jury were duly elected, impaneled, sworn and charged, is sufficient; and having been elected and impaneled under the direction of the Court, it must be presumed they were good and lawful men.

2. SAME. Regular panel. May be included in panel made up by sheriff, from which to select a traverse jury. It is not error in the sheriff, in making up a panel of 57 men, to include the regular panel of jurors from which a traverse jury is to be elected.

3. AFFIDAVIT OF JUROR AFTER VERDICT.

New Trial. An affidavit of

one of the jurors who returned a verdict against the defendant, of "murder in the first degree," states, that his judgment and conscience did not approve of the verdict; that he agreed to it because a great majority of the jurors favored the verdict, and a great desire on his part to be discharged, and believing that the Court would fix the punishment either by sentence of death or by imprisonment; but since he had learned that the Court had no discretion under such a verdict, as to the punishment, his judgment and conscience did not approve of the verdict. That he believed, and still believes, that the defendant was guilty of one or the other grades of homicide; but that he does not approve of the verdict