Friday, January 18, 2008

1. Constitutional Law. All laws of the usurped State Government, void. The 5th section of the Schedule to the amended Constitution, declares all laws, ordinances and resolutions, or acts done in pursuance thereof, under the usurped State Government, after the 6th of May, 1861, unconstitutional, null and void, from the beginning.

2. Same. Case in judgment. The plaintiff in error was commissioned, under an Act of the 18th of November, 1861, by Governor Harris, to take from the citizens of the county, their guns. He, under this authority, seized the gun of defendant in error, and carried it off. Held, that the Act of the 18th of November, 1861, was no protection to the plaintiff in error; but in taking the gun, he committed a trespass for which he was personally liable, and that the Act violates the 26th section of the Bill of Rights, which allows "the free white citizens of this State have a right to keep and bear arms for the common defense." ...

The case presents, for our consideration, the validity of the Act passed by the Legislature of the State, after the attempt to throw off the allegiance of the citizens to the United States, on the 6th day of May, 1861, and the effect of the adoption of the Constitutional Amendments and Schedule, on the 22d of February, 1865. It is insisted for the plaintiff in error, that if, by force or otherwise, the power of the Government of the United States to protect the citizens was withdrawn, the allegiance of the citizens was suspended, annulled, or in abeyance, and he was left to the absolute control and demand of the State; that the State, as a sovereign under the Constitution, has a right to take the property of a citizen, by and with the consent of his representatives, and having that consent, the Governor, as the executive, was bound to execute the law, and of right to issue the commission, and it is the act of the State for which the (p.216)plaintiff in error is not individually liable. These questions have been decided by tribunals from which there is no appeal.

The right of a State to withdraw from the Federal Union, and of her citizens to throw off their allegiance to the General Government, is a question unnecessary for us to discuss at length in the determination of the questions presented in this record.
The Constitution of the United States was adopted by the whole people; and upon its adoption became the paramount law. The framers of that instrument were the patriots and statesmen who lived under the old Confederation, saw the evils of that system of government, and in the formation of the Constitution, carefully endeavored to guard against them.

It was submitted to the whole people, and ratified by them, and no citizen can voluntarily throw off the allegiance cast upon him...

- Smith v. Ishenhour, 43 Tenn. 214 (1866).

Thursday, January 17, 2008

Well, well, would you take a look at THIS,(and RIGHT IN THE MIDDLE OF THE CIVIL WAR TOO):

...The right to take life in the defense of property, as well as of person and habitation, is a natural right, but the law limits its exercise to the prevention of forcible and atrocious crimes, of which burglary is one....

...Those rules recognize a right in every man to defend his property, as well as person and habitation, by taking the life of the aggressor, as a natural right; but they also limit and restrain the exercise of that right to the prevention of a certain class of forcible and atrocious crimes, of which breaking a shop in the night season is not one at common law....

...The class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson, breaking a house in the day time with intent to rob, sodomy and rape. Blackstone says: "Such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature; and also by the law of England, as it stood as early as the time of Bracton;" and he specifies, as of that character, those which we have enumerated. No others were specified by Hale or Hawkins, who wrote before him on the Pleas of the Crown, or have been specified by any writer since. Mr. East, in his Pleas of the Crown, and Mr. Foster, from whom Judge Swift quotes the law on this subject in his Digest, (vol. 2, page 283,) state the rule thus: "A man may repel force by force in defense of his person, habitation or property against one who manifestly intends or endeavors by violence and surprise to commit a known felony, such as murder, rape, robbery, arson, burglary and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing it will be justifiable self defense." 1 East P. C., 271; Foster C. L., 259....

- State v. Moore, 31 Conn. 479 (1863).

Monday, January 14, 2008

"...Parker C[hief]. J[ustice]. delivered the opinion of the Court..."

"...Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practised by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction..."

- Commonwealth v. Blanding, 3 Pick. 304 Mass. , 1825