THE RHODE ISLAND GOVERNMENT.

AN ARGUMENT MADE IN THE SUPREME COURT OF THE UNITED STATES, ON THE 27TH OF JANUARY, 1848, IN THE DORR REBELLION CASES.

[The facts necessary to the understanding of these cases are sufficiently set forth in the commencement of Mr. Webster's argument.

The event out of which the cases arose is known in popular language as the _Dorr Rebellion_. The first case (that of Martin Luther against Luther M. Borden and others) came up by writ of error from the Circuit Court of Rhode Island, in which the jury, under the rulings of the court (Mr. Justice Story), found a verdict for the defendants; the second case (that of Rachel Luther against the same defendants) came up by a certificate of a division of opinion. The allegations, evidence, and arguments were the same in both cases.

The first case was argued by Mr. Hallet and Mr. Clifford (Attorney-General) for the plaintiffs in error, and by Mr. Whipple and Mr. Webster for the defendants in error. Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice McKinley were absent from the court, in consequence of ill health. Chief Justice Taney delivered the opinion of the court, affirming the judgment of the court below in the first case, and dismissing the second for want of jurisdiction. Mr. Justice Woodbury dissented, and delivered a very elaborate opinion in support of his view of the subject.]

There is something novel and extraordinary in the case now before the court. All will admit that it is not such a one as is usually presented for judicial consideration.

It is well known, that in the years 1841 and 1842 political agitation existed in Rhode Island. Some of the citizens of that State undertook to form a new const.i.tution of government, beginning their proceedings towards that end by meetings of the people, held without authority of law, and conducting those proceedings through such forms as led them, in 1842, to say that they had established a new const.i.tution and form of government, and placed Mr. Thomas W. Dorr at its head. The previously existing, and then existing, government of Rhode Island treated these proceedings as nugatory, so far as they went to establish a new const.i.tution; and criminal, so far as they proposed to confer authority upon any persons to interfere with the acts of the existing government, or to exercise powers of legislation, or administration of the laws. All will remember that the state of things approached, if not actual conflict between men in arms, at least the "perilous edge of battle."

Arms were resorted to, force was used, and greater force threatened. In June, 1842, this agitation subsided. The new government, as it called itself, disappeared from the scene of action. The former government, the Charter government, as it was sometimes styled, resumed undisputed control, went on in its ordinary course, and the peace of the State was restored.

But the past had been too serious to be forgotten. The legislature of the State had, at an early stage of the troubles, found it necessary to pa.s.s special laws for the punishment of the persons concerned in these proceedings. It defined the crime of treason, as well as smaller offences, and authorized the declaration of martial law. Governor King, under this authority, proclaimed the existence of treason and rebellion in the State, and declared the State under martial law. This having been done, and the ephemeral government of Mr. Dorr having disappeared, the grand juries of the State found indictments against several persons for having disturbed the peace of the State, and one against Dorr himself for treason. This indictment came on in the Supreme Court of Rhode Island in 1844, before a tribunal admitted on all hands to be the legal judicature of the State. He was tried by a jury of Rhode Island, above all objection, and after all challenge. By that jury, under the instructions of the court, he was convicted of treason, and sentenced to imprisonment for life.

Now an action is brought in the courts of the United States, and before your honors, by appeal, in which it is attempted to prove that the characters of this drama have been oddly and wrongly cast; that there has been a great mistake in the courts of Rhode Island. It is alleged, that Mr. Dorr, instead of being a traitor or an insurrectionist, was the real governor of the State at the time; that the force used by him was exercised in defence of the const.i.tution and laws, and not against them; that he who opposed the const.i.tuted authorities was not Mr. Dorr, but Governor King; and that it was _he_ who should have been indicted, and tried, and sentenced. This is rather an important mistake, to be sure, if it be a mistake. "Change places," cries poor Lear, "_change places_, and _handy-dandy_, which is the justice and which the thief?" So our learned opponents say, "Change places, and, _handy-dandy_, which is the governor and which the rebel?" The aspect of the case is, as I have said, novel. It may perhaps give vivacity and variety to judicial investigations. It may relieve the drudgery of perusing briefs, demurrers, and pleas in bar, bills in equity and answers, and introduce topics which give sprightliness, freshness, and something of an uncommon public interest to proceedings in courts of law.

However difficult it may be, and I suppose it to be _wholly_ impossible, that this court should take judicial cognizance of the questions which the plaintiff has presented to the court below, yet I do not think it a matter of regret that the cause has come hither. It is said, and truly said, that the case involves the consideration and discussion of what are the true principles of government in our American system of public liberty. This is very right. The case does involve these questions, and harm can never come from their discussion, especially when such discussion is addressed to reason and not to pa.s.sion; when it is had before magistrates and lawyers, and not before excited ma.s.ses out of doors. I agree entirely that the case does raise considerations, somewhat extensive, of the true character of our American system of popular liberty; and although I am constrained to differ from the learned counsel who opened the cause for the plaintiff in error, on the principles and character of that American liberty, and upon the true characteristics of that American system on which changes of the government and const.i.tution, if they become necessary, are to be made, yet I agree with him that this case does present them for consideration.

Now, there are certain principles of public liberty, which, though they do not exist in all forms of government, exist, nevertheless, to some extent, in different forms of government. The protection of life and property, the _habeas corpus_, trial by jury, the right of open trial, these are principles of public liberty existing in their best form in the republican inst.i.tutions of this country, but, to the extent mentioned, existing also in the const.i.tution of England. Our American liberty, allow me to say, therefore, has an ancestry, a pedigree, a history. Our ancestors brought to this continent all that was valuable, in their judgment, in the political inst.i.tutions of England, and left behind them all that was without value, or that was objectionable.

During the colonial period they were closely connected of course with the colonial system; but they were Englishmen, as well as colonists, and took an interest in whatever concerned the mother country, especially in all great questions of public liberty in that country. They accordingly took a deep concern in the Revolution of 1688. The American colonists had suffered from the tyranny of James the Second. Their charters had been wrested from them by mockeries of law, and by the corruption of judges in the city of London; and in no part of England was there more gratification, or a more resolute feeling, when James abdicated and William came over, than in the American colonies. All know that Ma.s.sachusetts immediately overthrew what had been done under the reign of James, and took possession of the colonial fort in the harbor of Boston in the name of the new king.

When the United States separated from England, by the Declaration of 1776, they departed from the political maxims and examples of the mother country, and entered upon a course more exclusively American. From that day down, our inst.i.tutions and our history relate to ourselves. Through the period of the Declaration of Independence, of the Confederation, of the Convention, and the adoption of the Const.i.tution, all our public acts are records out of which a knowledge of our system of American liberty is to be drawn.

From the Declaration of Independence, the governments of what had been colonies before were adapted to their new condition. They no longer owed allegiance to crowned heads. No tie bound them to England. The whole system became entirely popular, and all legislative and const.i.tutional provisions had regard to this new, peculiar, American character, which they had a.s.sumed. Where the form of government was already well enough, they let it alone. Where reform was necessary, they reformed it. What was valuable, they retained; what was essential, they added, and no more. Through the whole proceeding, from 1776 to the latest period, the whole course of American public acts, the whole progress of this American system, was marked by a peculiar conservatism. The object was to do what was necessary, and no more; and to do that with the utmost temperance and prudence.

Now, without going into historical details at length, let me state what I understand the American principles to be, on which this system rests.

First and chief, no man makes a question, that the people are the source of all political power. Government is inst.i.tuted for their good, and its members are their agents and servants. He who would argue against this must argue without an adversary. And who thinks there is any peculiar merit in a.s.serting a doctrine like this, in the midst of twenty millions of people, when nineteen millions nine hundred and ninety-nine thousand nine hundred and ninety-nine of them hold it, as well as himself? There is no other doctrine of government here; and no man imputes to another, and no man should claim for himself, any peculiar merit for a.s.serting what everybody knows to be true, and n.o.body denies. Why, where else can we look but to the people for political power, in a popular government?

We have no hereditary executive, no hereditary branch of the legislature, no inherited ma.s.ses of property, no system of entails, no long trusts, no long family settlements, no primogeniture. Every estate in the country, from the richest to the poorest, is divided among sons and daughters alike. Alienation is made as easy as possible; everywhere the transmissibility of property is perfectly free. The whole system is arranged so as to produce, as far as unequal industry and enterprise render it possible, a universal equality among men; an equality of rights absolutely, and an equality of condition, so far as the different characters of individuals will allow such equality to be produced. He who considers that there may be, is, or ever has been, since the Declaration of Independence, any person who looks to any other source of power in this country than the people, so as to give peculiar merit to those who clamor loudest in its a.s.sertion, must be out of his mind, even more than Don Quixote. His imagination was only perverted. He saw things not as they were, though what he saw were things. He saw windmills, and took them to be giants, knights on horseback. This was bad enough; but whoever says, or speaks as if he thought, that anybody looks to any other source of political power in this country than the people, must have a stronger and wilder imagination, for he sees nothing but the creations of his own fancy. He stares at phantoms.

Well, then, let all admit, what none deny, that the only source of political power in this country is the people. Let us admit that they are _sovereign_, for they are so; that is to say, the aggregate community, the collected will of the people, is sovereign. I confess that I think Chief Justice Jay spoke rather paradoxically than philosophically, when he said that this country exhibited the extraordinary spectacle of many sovereigns and no subjects. The people, he said, are all sovereigns; and the peculiarity of the case is that they have no subjects, except a few colored persons. This must be rather fanciful. The aggregate community is sovereign, but that is not _the_ sovereignty which acts in the daily exercise of sovereign power. The people cannot act daily as the people. They must establish a government, and invest it with so much of the sovereign power as the case requires; and this sovereign power being delegated and placed in the hands of the government, that government becomes what is popularly called THE STATE.

I like the old-fashioned way of stating things as they are; and this is the true idea of a state. It is an organized government, representing the collected will of the people, as far as they see fit to invest that government with power. And in that respect it is true, that, though _this_ government possesses sovereign power, it does not possess _all_ sovereign power; and so the State governments, though sovereign in some respects, are not so in all. Nor could it be shown that the powers of both, as delegated, embrace the whole range of what might be called sovereign power. We usually speak of the States as sovereign States. I do not object to this. But the Const.i.tution never so styles them, nor does the Const.i.tution speak of the government here as the _general_ or the _federal_ government. It calls this government the United States; and it calls the State governments State governments. Still the fact is undeniably so; legislation is a sovereign power, and is exercised by the United States government to a certain extent, and also by the States, according to the forms which they themselves have established, and subject to the provisions of the Const.i.tution of the United States.

Well, then, having agreed that all power is originally from the people, and that they can confer as much of it as they please, the next principle is, that, as the exercise of legislative power and the other powers of government immediately by the people themselves is impracticable, they must be exercised by REPRESENTATIVES of the people; and what distinguishes American governments as much as any thing else from any governments of ancient or of modern times, is the marvellous felicity of their representative system. It has with us, allow me to say, a somewhat different origin from the representation of the commons in England, though that has been worked up to some resemblance of our own. The representative system in England had its origin, not in any supposed rights of the people themselves, but in the necessities and commands of the crown. At first, knights and burgesses were summoned, often against their will, to a Parliament called by the king. Many remonstrances were presented against sending up these representatives; the charge of paying them was, not unfrequently, felt to be burdensome by the people. But the king wished their counsel and advice, and perhaps the presence of a popular body, to enable him to make greater headway against the feudal barons in the aristocratic and hereditary branch of the legislature. In process of time these knights and burgesses a.s.sumed more and more a popular character, and became, by degrees, the guardians of popular rights. The people through them obtained protection against the encroachments of the crown and the aristocracy, till in our day they are understood to be the representatives of the people, charged with the protection of their rights. With us it was always just so.

Representation has always been of this character. The power is with the people; but they cannot exercise it in ma.s.ses or _per capita_; they can only exercise it by their representatives. The whole system with us has been popular from the beginning.

Now, the basis of this representation is suffrage. The right to choose representatives is every man's part in the exercise of sovereign power; to have a voice in it, if he has the proper qualifications, is the portion of political power belonging to every elector. That is the beginning. That is the mode in which power emanates from its source, and gets into the hands of conventions, legislatures, courts of law, and the chair of the executive. It begins in suffrage. Suffrage is the delegation of the power of an individual to some agent.

This being so, then follow two other great principles of the American system.

1. The first is, that the right of suffrage shall be guarded, protected, and secured against force and against fraud; and,

2. The second is, that its exercise shall be prescribed by previous law; its qualifications shall be prescribed by previous law; the time and place of its exercise shall be prescribed by previous law; the manner of its exercise, under whose supervision (always sworn officers of the law), is to be prescribed. And then, again, the results are to be certified to the central power by some certain rule, by some known public officers, in some clear and definite form, to the end that two things may be done: first, that every man ent.i.tled to vote may vote; second, that his vote may be sent forward and counted, and so he may exercise his part of sovereignty, in common with his fellow-citizens.

In the exercise of political power through representatives we know nothing, we never have known any thing, but such an exercise as should take place through the prescribed forms of law. When we depart from that, we shall wander as widely from the American track as the pole is from the track of the sun.

I have said that it is one principle of the American system, that the people limit their governments, National and State. They do so; but it is another principle, equally true and certain, and, according to my judgment of things, equally important, that the people often _limit themselves_. They set bounds to their own power. They have chosen to secure the inst.i.tutions which they establish against the sudden impulses of mere majorities. All our inst.i.tutions teem with instances of this. It was their great conservative principle, in const.i.tuting forms of government, that they should secure what they had established against hasty changes by simple majorities. By the fifth article of the Const.i.tution of the United States, Congress, two thirds of both houses concurring, may propose amendments of the Const.i.tution; or, on the application of the legislatures of two thirds of the States, may call a convention; and amendments proposed in either of these forms must be ratified by the legislatures or conventions of three fourths of the States. The fifth article of the Const.i.tution, if it was made a topic for those who framed the "people's const.i.tution" of Rhode Island, could only have been a matter of reproach. It gives no countenance to any of their proceedings, or to any thing like them. On the contrary, it is one remarkable instance of the enactment and application of that great American principle, that the const.i.tution of government should be cautiously and prudently interfered with, and that changes should not ordinarily be begun and carried through by bare majorities.

But the people limit themselves also in other ways. They limit themselves in the first exercise of their political rights. They limit themselves, by all their const.i.tutions, in two important respects; that is to say, in regard to the qualifications of _electors_, and in regard to the qualifications of the _elected_. In every State, and in all the States, the people have precluded themselves from voting for everybody they might wish to vote for; they have limited their own right of choosing. They have said, We will elect no man who has not such and such qualifications. We will not vote ourselves, unless we have such and such qualifications. They have also limited themselves to certain prescribed forms for the conduct of elections. They must vote at a particular place, at a particular time, and under particular conditions, or not at all. It is in these modes that we are to ascertain the will of the American people; and our Const.i.tution and laws know no other mode. We are not to take the will of the people from public meetings, nor from tumultuous a.s.semblies, by which the timid are terrified, the prudent are alarmed, and by which society is disturbed. These are not American modes of signifying the will of the people, and they never were. If any thing in the country, not ascertained by a regular vote, by regular returns, and by regular representation, has been established, it is an exception, and not the rule; it is an anomaly which, I believe, can scarcely be found.

It is true that at the Revolution, when all government was immediately dissolved, the people got together, and what did they do? Did they exercise sovereign power? They began an inceptive organization, the object of which was to bring together representatives of the people, who should form a government. This was the mode of proceeding in those States where their legislatures were dissolved. It was much like that had in England upon the abdication of James the Second. He ran away, he abdicated. He threw the great seal into the Thames. I am not aware that, on the 4th of May, 1842, any great seal was thrown into Providence River! But James abdicated, and King William took the government; and how did he proceed? Why, he at once requested all who had been members of the old Parliament, of any regular Parliament in the time of Charles the Second, to a.s.semble. The Peers, being a standing body, could of course a.s.semble; and all they did was to recommend the calling of a convention, to be chosen by the same electors, and composed of the same numbers, as composed a Parliament. The convention a.s.sembled, and, as all know, was turned into a Parliament. This was a case of necessity, a revolution. Don't we call it so? And why? Not merely because a new sovereign then ascended the throne of the Stuarts, but because there was a change in the organization of the government. The legal and established succession was broken. The convention did not a.s.semble under any preceding law. There was a _hiatus_, a syncope, in the action of the body politic. This was revolution, and the Parliaments that a.s.sembled afterwards referred their legal origin to that revolution.

Is it not obvious enough, that men cannot get together and count themselves, and say they are so many hundreds and so many thousands, and judge of their own qualifications, and call themselves the people, and set up a government? Why, another set of men, forty miles off, on the same day, with the same propriety, with as good qualifications, and in as large numbers, may meet and set up another government; one may meet at Newport and another at Chepachet, and both may call themselves the people. What is this but anarchy? What liberty is there here, but a tumultuary, tempestuous, violent, stormy liberty, a sort of South American liberty, without power except in its spasms, a liberty supported by arms to-day, crushed by arms to-morrow? Is that _our_ liberty?

The regular action of popular power, on the other hand, places upon public liberty the most beautiful face that ever adorned that angel form. All is regular and harmonious in its features, and gentle in its operation. The stream of public authority, under American liberty, running in this channel, has the strength of the Missouri, while its waters are as transparent as those of a crystal lake. It is powerful for good. It produces no tumult, no violence, and no wrong;--

"Though deep, yet clear; though gentle, yet not dull; Strong, without rage; without o'erflowing, full."

Another American principle growing out of this, and just as important and well settled as is the truth that the people are the source of power, is, that, when in the course of events it becomes necessary to ascertain the will of the people on a new exigency, or a new state of things or of opinion, the legislative power provides for that ascertainment by an ordinary act of legislation. Has not that been our whole history? It would take me from now till the sun shall go down to advert to all the instances of it, and I shall only refer to the most prominent, and especially to the establishment of the Const.i.tution under which you sit. The old Congress, upon the suggestion of the delegates who a.s.sembled at Annapolis in May, 1786, recommended to the States that they should send delegates to a convention to be holden at Philadelphia to form a Const.i.tution. No article of the old Confederation gave them power to do this; but they did it, and the States did appoint delegates, who a.s.sembled at Philadelphia, and formed the Const.i.tution. It was communicated to the old Congress, and that body recommended to the States to make provision for calling the people together to act upon its adoption. Was not that exactly the case of pa.s.sing a law to ascertain the will of the people in a new exigency? And this method was adopted without opposition, n.o.body suggesting that there could be any other mode of ascertaining the will of the people.

My learned friend went through the const.i.tutions of several of the States. It is enough to say, that, of the old thirteen States, the const.i.tutions, with but one exception, contained no provision for their own amendment. In New Hampshire there was a provision for taking the sense of the people once in seven years. Yet there is hardly one that has not altered its const.i.tution, and it has been done by conventions called by the legislature, as an ordinary exercise of legislative power.

Now what State ever altered its const.i.tution in any other mode? What alteration has ever been brought in, put in, forced in, or got in anyhow, by resolutions of ma.s.s meetings, and then by applying force? In what State has an a.s.sembly, calling itself the people, convened without law, without authority, without qualifications, without certain officers, with no oaths, securities, or sanctions of any kind, met and made a const.i.tution, and called it the const.i.tution of the STATE? There must be some authentic mode of ascertaining the will of the people, else all is anarchy. It resolves itself into the law of the strongest, or, what is the same thing, of the most numerous for the moment, and all const.i.tutions and all legislative rights are prostrated and disregarded.

But my learned adversary says, that, if we maintain that the people (for he speaks in the name and on behalf of the people, to which I do not object) cannot commence changes in their government but by some previous act of legislation, and if the legislature will not grant such an act, we do in fact follow the example of the Holy Alliance, "the doctors of Laybach," where the a.s.sembled sovereigns said that all changes of government must proceed from sovereigns; and it is said that we mark out the same rule for the people of Rhode Island.

Now will any man, will my adversary here, on a moment's reflection, undertake to show the least resemblance on earth between what I have called the American doctrine, and the doctrine of the sovereigns at Laybach? What do I contend for? I say that the will of the people must prevail, when it is ascertained; but there must be some legal and authentic mode of ascertaining that will; and then the people may make what government they please. Was that the doctrine of Laybach? Was not the doctrine there held this,--that the _sovereigns_ should say what changes shall be made? Changes must proceed from them; new const.i.tutions and new laws emanate from them; and all the people had to do was to submit. That is what they maintained. All changes began with the sovereigns, and ended with the sovereigns. Pray, at about the time that the Congress of Laybach was in session, did the allied powers put it to the people of Italy to say what sort of change they would have? And at a more recent date, did they ask the citizens of Cracow what change they would have in their const.i.tution? Or did they take away their const.i.tution, laws, and liberties, by their own sovereign act? All that is necessary here is, that the will of the people should be ascertained, by some regular rule of proceeding, prescribed by previous law. But when ascertained, that will is as sovereign as the will of a despotic prince, of the Czar of Muscovy, or the Emperor of Austria himself, though not quite so easily made known. A ukase or an edict signifies at once the will of a despotic prince; but that will of the people, which is here as sovereign as the will of such a prince, is not so quickly ascertained or known; and thence arises the necessity for suffrage, which is the mode whereby each man's power is made to tell upon the const.i.tution of the government, and in the enactment of laws.

One of the most recent laws for taking the will of the people in any State is the law of 1845, of the State of New York. It begins by recommending to the people to a.s.semble in their several election districts, and proceed to vote for delegates to a convention. If you will take the pains to read that act, it will be seen that New York regarded it as an ordinary exercise of legislative power. It applies all the penalties for fraudulent voting, as in other elections. It punishes false oaths, as in other cases. Certificates of the proper officers were to be held conclusive, and the will of the people was, in this respect, collected essentially in the same manner, supervised by the same officers, under the same guards against force and fraud, collusion and misrepresentation, as are usual in voting for State or United States officers.

We see, therefore, from the commencement of the government under which we live, down to this late act of the State of New York, one uniform current of law, of precedent, and of practice, all going to establish the point that changes in government are to be brought about by the will of the people, a.s.sembled under such legislative provisions as may be necessary to ascertain that will, truly and authentically.

In the next place, may it please your honors, it becomes very important to consider what bearing the Const.i.tution and laws of the United States have upon this Rhode Island question. Of course the Const.i.tution of the United States recognizes the existence of States. One branch of the legislature of the United States is composed of Senators, appointed by the States, in their State capacities. The Const.i.tution of the United States[1] says that "the United States shall guarantee to each State a republican form of government, and shall protect the several States against invasion; and on application of the legislature, or of the executive when the legislature cannot be convened, against domestic violence." Now, I cannot but think this a very stringent article, drawing after it the most important consequences, and all of them _good_ consequences. The Const.i.tution, in the section cited, speaks of States as having existing legislatures and existing executives; and it speaks of cases in which violence is practised or threatened against the State, in other words, "domestic violence"; and it says the State shall be protected. It says, then, does it not? that the existing government of a State shall be protected. My adversary says, if so, and if the legislature would not call a convention, and if, when the people rise to make a const.i.tution, the United States step in and prohibit them, why, the rights and privileges of the people are checked, controlled.

Undoubtedly. The Const.i.tution does not proceed on the _ground_ of revolution; it does not proceed on any _right_ of revolution; but it does go on the idea, that, within and under the Const.i.tution, no new form of government can be established in any State, without the authority of the existing government.

Admitting the legitimacy of the argument of my learned adversary, it would not authorize the inference he draws from it, because his own case falls within the same range. He has proved, he thinks, that there was an existing government, a paper government, at least; a rightful government, as he alleges. Suppose it to be rightful, in his sense of right. Suppose three fourths of the people of Rhode Island to have been engaged in it, and ready to sustain it. What then? How is it to be done without the consent of the previous government? How is the fact, that three fourths of the people are in favor of the new government, to be legally ascertained? And if the existing government deny that fact, and if that government hold on, and will not surrender till displaced by force, and if it is threatened by force, then the case of the Const.i.tution arises, and the United States must aid the government that is in, because an attempt to displace a government by force is "domestic violence." It is the exigency provided for by the Const.i.tution. If the existing government maintain its post, though three fourths of the State have adopted the new const.i.tution, is it not evident enough that the exigency arises in which the const.i.tutional power here must go to the aid of the existing government? Look at the law of 28th February, 1795.[2] Its words are, "And in case of an insurrection in any State, _against the government thereof_, it shall be lawful for the President of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection."

Insurrection against the _existing_ government is, then, the thing to be suppressed.

But the law and the Const.i.tution, the whole system of American inst.i.tutions, do not contemplate a case in which a resort will be necessary to proceedings _aliunde_, or outside of the law and the Const.i.tution, for the purpose of amending the frame of government. They go on the idea that the States are all republican, that they are all representative in their forms, and that these popular governments in each State, the annually created creatures of the people, will give all proper facilities and necessary aids to bring about changes which the people may judge necessary in their const.i.tutions. They take that ground and act on no other supposition. They a.s.sume that the popular will in all particulars will be accomplished. And history has proved that the presumption is well founded.

This, may it please your honors, is the view I take of what I have called the American system. These are the methods of bringing about changes in government.

Now, it is proper to look into this record, and see what the questions are that are presented by it, and consider,--

1. Whether the case is one for judicial investigation at all; that is, whether this court can try the matters which the plaintiff has offered to prove in the court below; and,

2. In the second place, whether many things which he did offer to prove, if they could have been and had been proved, were not acts of criminality, and therefore no justification; and,

3. Whether all that was offered to be proved would show that, in point of fact, there had been established and put in operation any new const.i.tution, displacing the old charter government of Rhode Island.

The declaration is in trespa.s.s. The writ was issued on the 8th of October, 1842, in which Martin Luther complains that Luther M. Borden and others broke into his house in Warren, Rhode Island, on the 29th of June, 1842, and disturbed his family and committed other illegal acts.

The defendant answers, that large numbers of men were in arms, in Rhode Island, for the purpose of overthrowing the government of the State, and making war upon it; and that, for the preservation of the government and people, martial law had been proclaimed by the Governor, under an act of the legislature, on the 25th of June, 1842. The plea goes on to aver, that the plaintiff was aiding and abetting this attempt to overthrow the government, and that the defendant was under the military authority of John T. Child, and was ordered by him to arrest the plaintiff; for which purpose he applied at the door of his house, and being refused entrance he forced the door.

The action is thus for an alleged trespa.s.s, and the plea is justification under the law of Rhode Island. The plea and replications are as usual in such cases in point of form. The plea was filed at the November term of 1842, and the case was tried at the November term of 1843, in the Circuit Court in Rhode Island. In order to make out a defence, the defendant offered the charter of Rhode Island, the partic.i.p.ation of the State in the Declaration of Independence, its uniting with the Confederation in 1778, its admission into the Union in 1790, its continuance in the Union and its recognition as a State down to May, 1843, when the const.i.tution now in force was adopted. Here let it be particularly remarked, that Congress admitted Rhode Island into the Const.i.tution under this identical old charter government, thereby giving sanction to it as a republican form of government. The defendant then refers to all the laws and proceedings of the a.s.sembly, till the adoption of the present const.i.tution of Rhode Island. To repel the case of the defendant, the plaintiff read the proceedings of the old legislature, and doc.u.ments to show that the idea of changing the government had been entertained as long ago as 1790. He read also certain resolutions of the a.s.sembly in 1841, memorials praying changes in the const.i.tution, and other doc.u.ments to the same effect. He next offered to prove that suffrage a.s.sociations were formed throughout the State in 1840 and 1841, and that steps were taken by them for holding public meetings; and to show the proceedings had at those meetings. In the next place, he offered to prove that a ma.s.s convention was held at Newport, attended by over four thousand persons, and another at Providence, at which over six thousand attended, at which resolutions were pa.s.sed in favor of the change. Then he offered to prove the election of delegates; the meeting of the convention in October, 1841, and the draughting of the Dorr const.i.tution; the rea.s.sembling in 1841, the completion of the draught, its submission to the people, their voting upon it, its adoption, and the proclamation on the 13th of January, 1842, that the const.i.tution so adopted was the law of the land.

That is the substance of what was averred as to the formation of the Dorr const.i.tution. The plaintiff next offered to prove that the const.i.tution was adopted by a large majority of the qualified voters of the State; that officers were elected under it in April, 1842; that this new government a.s.sembled on the 3d of May; and he offered a copy of its proceedings. He sets forth that the court refused to admit testimony upon these subjects, and to these points; and ruled that the old government and laws of the State were in full force and power, and then existing, when the alleged trespa.s.s was made, and that they justified the acts of the defendants, according to their plea.