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in error, that if, by force or otherwise, the power of the Government of the United States to protect the citizens was withdrawn, the allegiance of the citizens was suspended, annulled, or in abeyance, and he was left to the absolute control and demand of the State; that the State, as a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).

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