Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-07-24
VOLUME XXXIII.

] ont case EllAlLilllB AAC bAetAaA-A4t " -
cover or have relief in Court OF equity
] against all, or any Of the defendants!
! In considering the proceeding special caus
! es for demurrer, we have seen that the bil
does not fail for want Of equity on its face
| because Of a want Of prirty, between the
complainant and portion ofthe defendants
nor for want Of jurisdiction the subject mat
ter Of the suit, nor because the suit Is not
brought in the proper manner, nor yet, be-
cause Of the joinder Of improper parties
But looking outside, and beyond these limi-
ted and somewhat technical inquiries we are
led to consider other, and perhaps more i'm
portant questions.
lst. Il Is not seriously insisted that the
removal Of the assets Of the Branch Bank
beyond the limits of the State, was not in
violation Of the original charter Of the Bank
and the laws existing prior 10 the late rebel
lion or civil war. But tits insisted in the
able and ingenious argument of counsel for
the defense, that in August 1861, members
Of the Legislature were elected by the people
in conformity with theCOnstitution and Laws
Of the State. That the State is only the peO-
pie residing within the Territory Of the State
and that they, (the people, are the owners
Of the assets Of the Bank, and having
through their lawfully elected Representa-
tives, authorized or directed the removal Of
these assets, they cannot be held 10 complain
of those who did the act. ] cannot assent
to this proposition. In the first place the
argument assumes a fact, in conflict with
the statements Of the bill, which, if true
could not be considered on demurrer. The
bill expressly charges that the removal Of
the assets took place before the passage Of
any pretended law or resolution by the pre-
tended Legislature, and that there was not
the semblaRce Of law for the act. But in the
2nd place, the theory and refined reasoning
in the proposition are unsound.
The State is a corporation created for the
purpose Of carrying into effect the policy Of
the people promotiye Of their happiness and
is not in every sense to be regarded as the
people themselves. 1t is inseparably con-
nected W IT, and a component part Of the
General Government and understandable,
whilst any citizen may terminate his interest
in, or connection with the State, by peaceably
Withdrawing himself from her territory.
And if some Of the people Of a State rebel
against the Government, as the bill charges
in this case,) the State "still lives" and has
a right 10 perform acts Of vitality alone by
those who remain loyal, and alone for their
benefit, and this principle does not depend
upon numbers on the one side or the other in
the State, for, until the TebelliOus portion Of
the people, not in theState alone, but in the
whole Government Of the United States, be-
come so numerous and powerful as 10 over
turn and destroy the General Government
those rebelling in one State cannot lay just
claim 10 be the State, in any sense whatever
Nor, until they cease their rebellion, and
turn to their loyalty can they have any in
terest in the benehcent policy Of the
State, or any right TO control her &C
ton; but for the time being the entire
interest and control belong to the
loyal portion of the population. To
hold otherwise, would be to establish prin-
ciple subyersive Of all government, and lead
20 the alarming and absurd doctrine that
every unlawful organized combination Of
persons setting itself up agains' the constitu-
tional authorities at once becomes gOreTa-
meat de facto, and operates as a repeal of all
laws in conflict with the will Of the usurp-
ers Such doctrine no people can ever
sanction who expect to maintain their gov
eminent. The power of the Government
resides in the body Of the people, and an
attempt 10 overthrow it by any party is an
act of usurpation, and unlawful, and those
engaged in it. however numerous, short of
the whole body, are guilty Of high crime.
CONDENSED Reports, u. s., vol. 5, page 80. !
Chief Justice MARSHALL, in delivering the
unanimous opinion Of the Court, says the
people made the Constitution and the peo-
ple can unmake it. 1t is the creature of
their will and lives only by their will. But
this supreme and irresistible power to make
l.. IL hnI hpflx
of the people, not IN any subdivision Of them.
The attempt Of any of the parts TO exercise 1t
is usuapqtion and ought to be repealed by
those 10 whom the people have delegated
their power Of repelling it"
Nor was the late organization of the peo-
pie in Tennessee and the other Southern
States an exception to this rule. The organ
ization was not a Government dc tdct0, in the
sense that this term is understood by the
family Of nations. Such a right Is not
acquired alone at the bidding of the power
claiming il, but must come by acknowledge
lneat from members of the family of nations,
about whose status there is no question. No
power on earth ever acknowledged the
Southern Confederacy as a Government d,
fucfo, and hence at no time did any person
ia the claimed territory CEASE 20 be rcsPon
sible to the rightful authority-the laws and
constitution existing at the time the rebel
| lion commenced. In some Of the Statei
! lately in rebellion the people have called
conventions, and have ratified so far as he
| ewn people are concerned all the acts OF hei
citizens done in violation Of the constitution
| and laws the STATE during the war. This
/ was done for the repose of society, and Il
! highly commendable, but 1t ought not t
have been done without the full consent o
! all those who, all the time adhered to th'
/ rightful government or else their right
/ ought 30 have been expressly ercepiod from
! the operation Of the ratifyinE act. This &C
! ton of these States is a full acknowledg
ment that all acts done during she war mus
be answered for by the parties committing
them, to the law existing before the war
| No such action has been had by the peopl
in this State but on the contrary they hav,
instead Of legali-iHg the unlawful acts Of he
citizens expressly repudiated them.
ID. II is insisted with much earnestnes
| and force Of argument, that officers of a cor
| poration are not iadiridualiy liable for an in
Jury originating in mistake or mere error O
judgmeni but only for acts so grossly wron
rs 10 warrant the imputation Of fraud, aEt
tina. the officers and directors Of She Brancl
Bank at Shelbyville having acted in goo
faith. and with an honest desire to do wha
thew thought at the time was right, thereior'
thew ought not to be liable. The argumc
is one Of some force but cannot think
applicable TO the case made by the bill i
dis case. Such an argument, if the fac
support il, ought to have great weight wit
the people and the law-making power g
the State. Ii would be highly commendabl
in the State as well rs individuals, for th
"repose Of society" TO forego the right
pursue legal remedies against individual
for acts committed by them, mot UgHtou
and oor4ptly,) in obedience TO what the
supposed at TIE time TO be their right If nj
their duty Many individuals, | know, al
acting on this principle, but the courts
the country have no discretion in the ma
ter but must administer the law as the
find and understand it; and il is much to
regretted that 50 many suits are brought II
volvinr transactions transpiring during q
war. reviving unpleasant recollections an
hindering the healing Of the many wound
inflicted by the strife.
But the argument assumes the good 5dt
ofthe defendants in the commission Of q
acts complained Of The bill complains
the act as being done for the aRidlyia pg
/ 49, - n .sa;-- fbo r1balifnn AGAINST III