Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-02
SUPREME COURT DECISION.


Knoxville. tennessee. September
Term. 1850.
A. 4. smith vs. Conrad IshenhoUr.
This suit was commenced before a |
Justice Of the Peace to recover a gun, and I
was taken by appeal to the Circuit Court |
Of the county OF Cooke
The case was submitted TO the Circuit |
Judge upon an agreed state Of facts, The |
plaintiff in error was appointed in 1862 by
isham g. Harris, tEen acting Governor Of
the State Of Tennessee, under an act passed /
10y the Legislature, the 28th Of November
1861, and duly commissioned under the
provisions Of that act to take from the citi-
zens Of tie county their guns. Under this
authority he seized the gun Of the defend
ant In error, and carried il Of, the gun be-
ing valued at S2j. His Honor was Of opin
ion the law was in violation Of the consti-
tuition, aud plaintiff in error a trespasser,
and judgment was rendered against him,
from which there was an appeal to this
court.
The case presents for our consideration
the validity Of the acts passed by the Le-
gislature Of the State, after the attempt to
throw of the allegiance Of the citizen to the
United States, on the 9th day Of May, 1861,
and the effect Of the adoption of the consti-
tutional amendments and schedule, on the
22d Of February, 1865. 1t 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 citizen
was withdrawn, the allegiance Of the cltl-
zen was suspended, annulled, or in abey
ance, and he was left 10 the absolute control
and demand Of the State. That the State,
as a sovereign under the constitution, has
a right 10 take the property of the citizen
by and with the consent Of his representa-
tives, and, having that consent, the Gov
ernor, as the executive, was bound TO exc
cute the Law, and of right to issue the COM
mission, and it is the act of the State, for
which the plaintiff in error is not individu-
ally liable. These questions have been de-
cided by tribunals from which there is no
appeal.
The right Of State TO withdraw from
the Federal Union, and Of her citizens to
throw of their allegiance to the general
oyernment, is a question unnecessary for
us to discuss in 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 trainers of that instrument we're 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.
1t was submitted to the whole people, and
ratified by them, and no citizen can vol
UNFAIRLY throw off the allegiance cast upon
him, while he remains within the States or
territories over which the government has
jurisdiction. Statesmen have differed since
the organization Of the government on the
rights of State TO withdraw from the
Federal Union. The attempt to exercise it
by part ofthe States eliminated in the late
civil war; the authorities controlling the
Federal government triumphed, aud the
question il, we hope, finally and forever
settled by that tribunal from which there
is no appeal. Upon the attempt Of this
State to withdraw from the Union, the
Legislature met and passed various acts
among them an act entitled an "act 10 es-
tablish an ordnance bureau and for other
purposes" passed on the Doth of November,
1861. The 18th, 10th and Dist sections of
that act authorized the Governor of the
State to commission persons in each county
10 collect the arms of the citizens. Heavy
penalties were imposed on those who re-
fused to yield them up. In the passage of
this act, the 26th section Of the Bill of
Rights, which provides chat the free white
men of this State have right TO keep and
bear arms for the common defense" was
utterly disregarded. This il the first at
tempt in the history Of the AnglO-Saxon
race, of which we are apprised, to disarm
the people by legislation.
The motives which induced the passage
Of the act we will leave an enlightened
public to decide when passion has passed
and reason resumed her control. How far
the acts Of this Legislature, which assembled
without the sanction of the oath prescribed
in article 10Th, section %, Of the constitu-
ton Of the State, which requires each men,
Der OF the Legislature, before he takes his
seat, to take an oath to support the consti-
tuition of the United States, etc, are valid,
it is unnecessary for us to decide, as it has
been settled by the people acting in their
sovereign right The constitutional amend
ment became part of the constitution of
the State, and schedule thereto annexed,
for all the purposes sought by the ratifca-
ton, because equally binding on the courts
9Th Of the schedule provides, call laws,
ordinances and resolutions, as well as all
acts done in pursuance thereof, under the
authority of the usurped State government,
after the declared independence of the
State Of Tennessee, on or after the 9th of
May, 1861, were unconstitutional, null and
void from the beginning" No one has ever
doubted the right, that according to the in
situations Of this country, the sovereignty
Of every State resides in the people Of the
State, and they may alter or change their
form Of government at their pleasure, but
whether they have changed it or not by
abolishing the old government and estab
fishing a new one, is question to be set
tied by the political power. The courts
are bound 10 take notice of its decisions
and follow it, eth Towards Report, Lu-
ther vs.. Borden, page l..
The people of the State having in their
sovereign character declared the acts of
the Legislature, passed after the 9th Of May, |
null and void from the beginning, it fol- |
lows, therefore, that the ratification of the |
schedule by the people on the 22d Of Feb |
ruary, 1865, the act under which the plain |
tiff justified his seizure Of the gun of the |
defendant in error, was null and void, and |
he cannot defend himself bv virtue of the |
commission under which he acted, nor |
shield himself from the responsibility by |
the provisions Of the acts of the Legisla- |
ture. passed after the 9th of Nav, 1861. 1t |
follows the defendant was a trespasser, and |
is responsible for the property taken. The |
Judgment of the court viii be affirmed.
SHACKELFoRD, Judge,
4 true copy. Test:
NJ. l.. PATTERSON, Clerk.
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