U.S. Supreme Court Luther v. Borden, 48 U.S. 7 How. 1 1
(1849) Luther v. Borden* 48 U.S. (7 How.) 1 Syllabus At the period of the American Revolution, Rhode Island did not,
like the other States, adopt a new constitution, but continued the
form of government established by the Charter of Charles the
Second, making only such alterations, by acts of the Legislature,
as were necessary to adapt it to their condition and rights as an
independent State.

															But no mode of proceeding was pointed out by which amendments
might be made.

															In 1841, a portion of the people held meetings and formed
associations which resulted in the election of a convention to form
a new constitution to be submitted to the people for their adoption
or rejection.

															This convention framed a constitution, directed a vote to be
taken upon it, declared afterwards that it had been adopted and
ratified by a majority of the people of the State, and was the
paramount law and constitution of Rhode Island.

															Under it, elections were held for Governor, members of the
Legislature, and other officers, who assembled together in May,
1842, and proceeded to organize the new government.

															But the charter government did not acquiesce in these
proceedings. On the contrary, it passed stringent laws, and finally
passed an act declaring the State under martial law.

															In May, 1843, a new constitution, which had been framed by a
convention called together by the charter government, went into
operation, and has continued ever since.

															The question which of the two opposing governments was the
legitimate one, viz., the charter government or the
government established by the voluntary convention, has not
heretofore been regarded as a judicial one in any of the State
courts. The political department has always determined whether a
proposed constitution or amendment was ratified or not by the
people of the State, and the judicial power has followed its
decision.

															The courts of Rhode Island have decided in favor of the validity
of the charter government, and the courts of the United States
adopt and follow the decisions of the State courts in questions
which concern merely the constitution and laws of the state. Page 48 U. S. 2 The question whether or not a majority of those persons entitled
to suffrage voted to adopt a constitution cannot be settled in a
judicial proceeding.

															The Constitution of the United States has treated the subject as
political in its nature, and placed the power of recognizing a
State government in the hands of Congress. Under the existing
legislation of Congress, the exercise of this power by courts would
be entirely inconsistent with that legislation.

															The President of the United States is vested with certain power
by an act of Congress, and in this case, he exercised that power by
recognizing the charter government.

															Although no State could establish a permanent military
government, yet it may use its military power to put down an armed
insurrection too strong to be controlled by the civil authority.
The State must determine for itself what degree of force the crisis
demands.

															After martial law was declared, an officer might lawfully arrest
any one who he had reasonable grounds to believe was engaged in the
insurrection, or order a house to be forcibly entered. But no more
force can be used than is necessary to accomplish the object, and
if the power is exercised for the purposes of oppression, or any
injury willfully done to person or property, the party by whom, or
by whose order, it is committed would undoubtedly be
answerable.

															These two cases came up from the Circuit Court of the United
States for the District of Rhode Island, the former by a writ of
error and the latter by a certificate of division in opinion. As
the allegations, evidence, and arguments were the same in both, it
is necessary to state those only of the first. They were argued at
the preceding term of the court, and held under advisement until
the present.

															Martin Luther, a citizen of the State of Massachusetts, brought
an action of trespass quare clausum fregit against the
defendants, citizens of the State of Rhode Island, for breaking and
entering the house of Luther, on the 29th of June, 1842. The action
was brought in October, 1842.

															At November term, 1842, the defendants filed four pleas in
justification, averring, in substance:

															An insurrection of men in arms to overthrow the government of
the State by military force

															That, in defence of the government, martial law was declared by
the General Assembly of the State.

															That the plaintiff was aiding and abetting said insurrection.
That at the time the trespasses were committed, the State was under
martial law, and the defendants were enrolled in the fourth company
of infantry in the town of Warren, under the command of J. T.
Child.

															That the defendants were ordered to arrest the plaintiff, and,
if necessary, to break and enter his dwelling-house.

															That it was necessary, and they did, break and enter, &c.,
doing as little injury as possible, &c., and searched said
house, &c.

															To these pleas there was a general replication and issue.

															The cause came on for trial at November term, 1843, when the
jury, under the rulings of the court, found a verdict for Page 48 U. S. 3 the defendants. During the trial, the counsel for the plaintiff
took a bill of exceptions, which was as follows:

															" RHODE ISLAND DISTRICT, sc.:" "MARTIN LUTHER"

															"v."

															"LUTHER M. BORDEN ET ALS."

															" Circuit Court of the United States, November Term, 1843" "Be it remembered, that, upon the trial of the aforesaid issue
before said jury, duly impanelled to try the same,"

															"The defendants offered in evidence, in support of their first,
second, and third pleas:"

															"1st. The charter of the Colony of Rhode Island and Providence
Plantations, and the acceptance of the same at a very great meeting
and assembly of all the freemen of the then Colony of Rhode Island
and Providence Plantations, legally called and held at Newport, in
the said Colony, on the 24th day of November, A.D. 1663."

															"That on the 25th day of November, A.D. 1663, the former lawful
colonial government of the said Colony dissolved itself, and the
said charter became and was henceforth the fundamental law or rule
of government for said Colony. That, under and by virtue of said
charter, and the acceptance thereof as aforesaid, the government of
said Colony was duly organized, and by due elections was continued,
and exercised all the powers of government granted by it, and was
recognized by the inhabitants of said Colony, and by the king of
Great Britain and his successors, as the true and lawful government
of said Colony, until the 4th day of July, A.D. 1776."

															"That the General Assembly of said Colony, from time to time,
elected and appointed delegates to the General Congress of the
delegates of the several Colonies of North America, held in the
years 1774, 1775, and 1776, and to the Congress of the United
States of America, in the years 1776 and 1778. And that said
delegates of said Colony of Rhode Island and Providence Plantations
were received by, and acted with, the delegates from the other
Colonies and States of America, in Congress assembled, as the
delegates representing the said Colony and State of Rhode Island
and Providence Plantations; and that on the 4th day of July, A.D.
1776, said delegates of the said Colony of Rhode Island and
Providence Plantations united with the delegates of the other
Colonies as representatives of the United States of America, and as
such assented to and signed in behalf of said Colony the
Declaration of the Independence of the United States of America.
" Page 48 U. S. 4 "That afterward, to-wit, at the July session of the General
Assembly of said State of Rhode Island and Providence Plantations,
said General Assembly, by resolution thereof, did approve the said
Declaration of Independence made by the Congress aforesaid, and did
most solemnly engage that they would support the said General
Congress in the said Declaration with their lives and
fortunes."

															"That afterwards, to-wit, on the 9th day of July, 1778, the said
State of Rhode Island and Providence Plantations, by her delegates
duly authorized thereunto, became a party to the articles of
confederation and perpetual union between the States of New
Hampshire. Massachusetts Bay, Rhode Island and Providence
Plantations, Connecticut, New York, New Jersey, Pennsylvania,
Maryland, Virginia, North Carolina, South Carolina, and Georgia,
and ratified and confirmed the same, and, as one of the United
States of America under said articles of confederation and
perpetual union, was received, recognized, and acted with and by
the other States of the said confederation, and by the United
States of America in Congress assembled, during the continuation of
said confederacy."

															"That after the dissolution of said confederacy, to wit, on the
29th day of May, A.D. 1790, said State of Rhode Island and
Providence Plantations, in convention duly called, elected, and
assembled under an act of the General Assembly of said State,
ratified the Constitution of the United States, and under the same
became, and ever since has been, one of the said United States, and
as such, under the Constitution and laws of the United States, and
of the said State of Rhode Island and Providence Plantations, hath
ever elected and sent, and doth now send, Senators and
Representatives to the Congress of the United States, who have been
since, and now are, received and recognized as such by the said
United States, and in all respects have ever been received and
recognized by the several States, and by the United States, as one
of the said United States, under the said Constitution
thereof."

															"That from the said 4th of July, A.D. 1776, to the present time,
the said charter and the said government of the said State of Rhode
Island and Providence Plantations, organized under the same, hath
ever been acted under and recognized by the people of said State,
and hath been recognized by each of the said United States, and
hath been recognized and guaranteed by the said United States as
the true, lawful, and republican constitution and form of
government of said State; and that the said charter continued to
regulate the exercise and distribution of the powers of said
government of said State, and except so far as it hath been
modified by the Revolution and the new Page 48 U. S. 5 order of things consequence thereon, continued to be the
fundamental law of said State, until the adoption of the present
constitution of said State, and the organization of the government
under the same."

															"That all the officers of the said government of said Colony and
State of Rhode Island and Providence Plantations, organized under
said charter as aforesaid, were elected in conformity with said
charter and with the existing laws, from the first organization of
the government under the said charter until the organization of the
government under the present constitution of said State, and were
and continued to be in the full exercise of all the powers of said
government, and in the full possession of all the State-houses,
court-houses, public records, prisons, jails, and all other public
property, until the regular and legal dissolution of said
government by the adoption of the present constitution, and the
organization of the present government under the same."

															"2d. That the General Assembly of said State, at their January
session, in the year of our Lord one thousand eight hundred and
forty-one, passed resolutions in the words following, to-wit:"

															" Resolved by this General Assembly (the Senate
concurring with the House of Representatives therein), That the
freemen of the several towns in this State, and of the city of
Providence, qualified to vote for general officers be, and they are
hereby, requested to choose, at their semiannual town or ward
meetings, in August next, so many delegates, and of the like
qualifications, as they are now respectively entitled to choose
representatives to the General Assembly, to attend a convention, to
be holden at Providence, on the first Monday of November, in the
year of our Lord one thousand eight hundred and forty-one, to frame
a new constitution for this State, either in whole or in part, with
full powers for this purpose, and if only for a constitution in
part, that said convention have under their especial consideration
the expediency of equalizing the representation of the towns in the
House of Representatives."

															" Resolved, That a majority of the whole number of
delegates which all the towns are entitled to choose shall
constitute a quorum; who may elect a president and secretary; judge
of the qualifications of the members, and establish such rules and
proceedings as they may think necessary; and any town or city which
may omit to elect its delegates at the said meetings in August may
elect them at any time previous to the meeting of said
convention."

															" Resolved, That the constitution or amendments agreed
upon by said convention shall be submitted to the freemen in open
town or ward meetings, to be holden at such time as may be Page 48 U. S. 6 named by said convention. That said constitution or amendments
shall be certified by the president and secretary, and returned to
the Secretary of State, who shall forthwith distribute to the
several town and city clerks, in due proportion, one thousand
printed copies thereof, and also fifteen thousand ballots, on one
side of which shall be printed '( Amendments or
Constitution ) adopted by the convention holden at Providence,
on the first Monday of November last'; and on the other side, the
word approve on the one half of the said ballots, and the
word reject on the other half."

															" Resolved, That at the town or ward meetings, to be
holden as aforesaid, every freeman voting shall have his name
written on the back of his ballot; and the ballots shall be sealed
up in open town or ward meeting by the clerks, and, with lists of
the names of the voters, shall be returned to the General Assembly
at its next succeeding session; and the said General Assembly shall
cause said ballots to be examined and counted, and said amendments
or constitution being approved of by a majority of the freemen
voting, shall go into operation and effect at such time as may be
appointed by said convention."

															" Resolved, That a sum not exceeding three hundred
dollars be appropriated for defraying the expenses of said
convention, to be paid according to the order of said convention,
certified by its president."

															"That at their May session, in the year of our Lord one thousand
eight hundred and forty-one, the said General Assembly passed
resolutions in the words following, to-wit:"

															" Resolved by this General Assembly (the Senate
concurring with the House of Representatives therein) That the
delegates from the several towns to the State convention to be
holden in November next, for the purpose of framing a State
constitution, be elected on the basis of population, in the
following manner, to-wit: Every town of not more than eight hundred
and fifty inhabitants may elect one delegate; of more than eight
hundred and fifty, and not more than three thousand inhabitants,
two delegates; of more than three thousand, and not more than six
thousand inhabitants, three delegates; of more than six thousand,
and not more than ten thousand inhabitants, four delegates; of more
than ten thousand, and not more than fifteen thousand inhabitants,
five delegates; of more than fifteen thousand inhabitants, six
delegates."

															" Resolved, That the delegates attending said
convention be entitled to receive from the general treasury the
same pay as members of the General Assembly."

															" Resolved, That so much of the resolutions to which these are
in amendment as is inconsistent herewith be repealed. " Page 48 U. S. 7 "And that at their January session, in the year of our Lord one
thousand eight hundred and forty-two, the said General Assembly
passed resolutions in the words following, to-wit:"

															" Whereas a portion of the people of this State, without the
forms of law, have undertaken to form and establish a constitution
of government for the people of this State, and have declared such
constitution to be the supreme law, and have communicated such
condition to the General Assembly; and whereas many of the good
people of this State are in danger of being misled by these
informal proceedings, therefore,"

															" It is hereby resolved by this General Assembly That all acts
done by the persons aforesaid, for the purpose of imposing upon
this State a constitution, are an assumption of the powers of
government in violation of the rights of the existing government,
and of the rights of the people at large."

															" Resolved, That the convention called and organized in
pursuance of an act of this General Assembly, for the purpose of
forming a constitution to be submitted to the people of this State,
is the only body which we can recognize as authorized to form such
a constitution, and to this constitution the whole people have a
right to look, and we are assured they will not look in vain, for
such a form of government as will promote their peace, security,
and happiness."

															" Resolved, That this General Assembly will maintain
its own proper authority, and protect and defend the legal and
constitutional rights of the people."

															"And that, at their January session, in the year of our Lord one
thousand eight hundred and forty-two, the said General Assembly
passed an act in the words following, to-wit:"

															" An act in amendment of an act, entitled an act revising the
act entitled an act regulating the manner of admitting freemen, and
directing the manner of electing officers in this State."

															" Whereas the good people of this State have elected delegates
to a convention to form a constitution, which constitution, if
ratified by the people, will become the supreme law of the State;
therefore,"

															" Be it enacted by the General Assembly as follows: all persons
now qualified to vote, and those who may be qualified to vote under
the existing laws previous to the time of such their voting, and
all persons who shall be qualified to vote under the provisions of
such constitution, shall be qualified to vote upon the question of
the adoption of the said constitution."

															" That under and by virtue of the resolutions and acts last
aforesaid, a written constitution of government for the said State
of Rhode Island and Providence Plantations was framed Page 48 U. S. 8 by a convention legally called, elected, and assembled, and that
said proposed constitution was, in pursuance of the said
resolutions and acts, on the 21st, 22d, and 23d days of March, A.D.
1842, submitted for adoption or rejection to all persons qualified
by the existing laws of said State to vote, and also to all persons
who, under the provisions of said constitution, were qualified to
vote, in the legal town and ward meetings of said State and of the
city of Providence, legally called and assembled, and was by a
majority of the persons so qualified by law to vote thereon, and
actually voting thereon, rejected. That the said Martin Luther and
his confederates, in causing and fomenting the said rebellion,
voted against the adoption of said constitution, a copy of which is
hereunto annexed, marked A."

															"3d. The defendants further offered all the acts, resolutions,
and proceedings of the said General Assembly of the said Colony and
State of Rhode Island and Providence Plantations, from the
organization of the said government under the said charter, until
the organization of the present government under the present
constitution."

															"4th. The defendants offered evidence that, on the 24th day of
June, A.D. 1842, and for a long time before, and from that time
continually, until after the time when the said trespasses are
alleged in the plaintiff's said declaration to have been committed,
large numbers of men, among whom was the said Martin Luther, were
assembled in arms in different parts of the said State of Rhode
Island and Providence Plantations for the purpose and with the
intent of overthrowing the government of said State and destroying
the same by military force, and with such illegal, malicious, and
traitorous intent and purpose at and during the times aforesaid
did, in different parts of said State, make and levy war upon said
State, and upon the government and citizens thereof, and did
attempt and enterprize the hurt, detriment, annoyance, and
destruction of the inhabitants of said State, and the overthrow of
the government thereof."

															"5th. That, in order to protect and preserve said State and the
government and the citizens thereof from the destruction threatened
by said rebellion and military force, the General Assembly of said
State, on the 25th day of June, A.D. 1842, enacted and declared
martial law in the words following:"

															" An Act establishing Martial Law in this State." " Be it enacted by the General Assembly as follows: Section 1.
The State of Rhode Island and Providence Plantations is hereby
placed under martial law, and the same is declared to be in full
force, until otherwise ordered by the General Assembly, or
suspended by proclamation of his Excellency the Governor of the
State. " Page 48 U. S. 9 "And thereupon, on the 26th day of June, A.D. 1842, Samuel Ward
King, governor, captain-general, and commander-in-chief in and over
said State of Rhode Island and Providence Plantations, issued his
proclamation in the words and figures following:"

															" By his Excellency, Samuel Ward King, Governor,
Captain-General, and Commander-in-chief of the State of Rhode
Island and Providence Plantations."

															" A Proclamation " " Whereas the General Assembly of the said State of Rhode Island
and Providence Plantations did, on the 25th day of June, A.D. 1842,
pass the act following, to-wit:"

															" "An Act establishing Martial Law in this State." " 'Be it enacted by the General Assembly as follows: Section 1.
The State of Rhode Island and Providence Plantations is hereby
placed under marital law, and the same is declared to be in full
force until otherwise ordered by the General Assembly, or suspended
by proclamation of his Excellency the Governor of the State."

															" 'I do, therefore, issue this my proclamation, to make known
the same unto the good people of this State, and all others, that
they may govern themselves accordingly. And I do warn all persons
against any intercourse or connection with the traitor Thomas
Wilson Dorr, or his deluded adherents, how assembled in arms
against the laws and authorities of this State, and admonish and
command the said Thomas Wilson Dorr and his adherents immediately
to throw down their arms and disperse, that peace and order may be
restored to our suffering community, and as they will answer the
contrary at their peril. Further, I exhort the good people of this
State to aid and support by example, and by arms, the civil and
military authorities thereof, in pursuing and bringing to condign
punishment all engaged in said unholy and criminal enterprise
against the peace and dignity of the State."

															" 'In testimony whereof, I have caused the seal of said State to
be affixed to these presents, and have signed the said with my
hand. Given at the city of Providence, on the 26th day of June,
A.D. 1842, and of the Independence of the United States of America
the sixty-sixth."

															" 'SAMUEL WARD KING"

															"'[L.S.]"

															"'By his Excellency's command."

															"'HENRY BOWEN, Secretary. ' " Page 48 U. S. 10 "6th. That at the time when the trespasses mentioned and set
forth in the plaintiff's said declaration are alleged to have been
committed, and at divers other times before that time, the
plaintiff was aiding and abetting the aforesaid traitorous,
malicious, and unlawful purposes and designs of overthrowing the
government of said State by rebellion and military force, and in
making war upon said State, and upon the government and citizens
thereof."

															"7th. That, at the time when the pretended trespasses mentioned
in the plaintiff's declaration are alleged to have been committed,
the said State was under martial law as aforesaid, and the said
defendants were enrolled in the company of infantry in the said
town of Warren, in the fourth regiment of the militia of said
State, and were under the command of John T. Child."

															"8th. That said John T. Child, on the 25th day of June, A.D.
1842, was duly commissioned and sworn as a quartermaster of the
fourth regiment of the first brigade of militia of Rhode Island,
and continued to exercise such command until after the time when
the trespasses mentioned in the plaintiff's declaration are alleged
to have been committed; that, on the 27th day of June, A.D. 1842,
the said John T. Child received written orders from Thomas G.
Turner, Esq., lieutenant-colonel commanding said regiment, and duly
commissioned and sworn,"

															"to continue to keep a strong armed guard, night and day, in the
said Warren, and to arrest every person, either citizens of Warren
or otherwise, whose movements were in the least degree suspicious,
or who expressed the least willingness to assist the insurgents who
were in arms against the law and authorities of the State."

															"9th. That these defendants were ordered, by the said John T.
Child, their commander as aforesaid, to arrest and take the said
Martin Luther, and, if necessary for the purpose of arresting and
taking the said Luther, these defendants were ordered to break and
enter the dwelling-house of said Luther."

															"10th. That these defendants, in compliance with said orders,
and for the purpose of arresting and taking said Luther, proceeded
to his house and knocked at the door, and, not being able to obtain
admission therein, forced the latch of the door of said house, and
entered the same for the purpose of making said arrest, doing as
little damage as possible."

															"11th. That, at the time these defendants were ordered to arrest
the said Martin Luther, as before stated, the town of Warren was in
danger of an attack from the said Martin Luther and his
confederates, and the inhabitants of said town were in great alarm
on account thereof. " Page 48 U. S. 11 "And the counsel for the plaintiff, to maintain and prove the
issue on his part, offered in evidence the following matters,
facts, and things, in manner following, to-wit:"

															"1st. The plaintiff offered in evidence the proceedings and
resolutions of a convention of the State of Rhode Island and
Providence Plantations, passed 29th May, 1790, a copy whereof is
hereunto annexed, marked A."

															"2d. The plaintiff offered in evidence the report of a committee
of the House of Representatives of the State of Rhode Island,
&c., made in June, 1829, upon certain memorials to them
directed therein, praying for an extension of the right of suffrage
in said State, a copy of which is hereunto annexed, marked B."

															"3d. The plaintiff offered in evidence resolutions passed by the
General Assembly of said State, at their session, January, 1841, a
copy of which is hereunto annexed, Marked C."

															"4th. The plaintiff then offered in evidence the memorial
addressed to said Assembly, at said session, by Elisha Dillingham
and others, a copy of which is hereunto annexed, marked D."

															"5th. The plaintiff offered evidence to prove that, in the last
part of the year 1840, and in the year 1841, associations were
formed in many, if not in all, the towns in the State, called
'Suffrage Associations,' the object of which was to diffuse
information among the people upon the question of forming a written
republican constitution, and of extending the right of suffrage. To
prove this, he offered the officers and members of said
associations, also the declaration of principles of said
associations, passed February 7, 1841, and the proceedings of a
meeting thereof on the 13th day of April, 1841; and also offered
witnesses to prove that a portion of the people of this State
assembled at Providence, on the 17th day of April, 1841, under a
call from the Rhode Island Suffrage Association, to take into
consideration certain matters connected with the existing state of
suffrage in said State, and to prove the proceedings of said
meeting; and this he offered to prove by the testimony of the
chairman of said meeting, and the clerk of the same, and of other
persons present thereat, all of which proceedings and declaration,
resolutions, &c., are hereunto annexed, marked E."

															"6th. The plaintiff offered to prove that, on the 5th day of
May, A.D. 1841, a mass convention of the male inhabitants of this
State, consisting of four thousand and upwards, of the age of
twenty-one years and upwards, met at Newport, in said State, in
pursuance of notice for that purpose, whereat, among other things,
it was resolved by said convention as follows: (See copy of said
resolutions hereunto annexed, marked F.)"

															"7th. The plaintiff offered to prove that the said mass
convention Page 48 U. S. 12 at Newport aforesaid adjourned their meeting from said 5th day
of May to the 5th day of July, 1841, to Providence, in said State,
at which place and time last mentioned said convention reassembled,
consisting of six thousand persons and upwards, of the age of
twenty-one years and upwards, the same being the free male
inhabitants of said State, when and where, among other things, it
was resolved by said convention as follows: (See copy of said
resolutions hereunto annexed, and marked G.)"

															"8th. The plaintiff offered in evidence certain resolutions of
the General Assembly of said State, passed at their May session,
1841; also a certain bill (or act) presented by a member of said
Assembly, at the same session, and the proceedings of said Assembly
thereupon, copies of which are hereunto annexed, marked H a, H
b."

															"9th. The plaintiff offered in evidence the minority report from
the Committee on the Judiciary upon the bill or act mentioned in
the eighth offer, made to said General Assembly at their June
session, A.D. 1841, and the action of said General Assembly
thereupon, copies of which are hereunto annexed, marked I a, I
b."

															"10th. The plaintiff offered to prove that the said State
committee, by virtue of the authority in them vested by the said
mass convention, notified the inhabitants of the several towns, and
of the city of Providence, in this State, to assemble together and
appoint delegates to a convention, for the purpose of framing a
constitution for this State aforesaid, and that every American male
citizen, twenty-one years of age and upwards, who had resided in
this State as his home one year preceding the election of
delegates, should have the right to vote for delegates to said
convention, to draft a constitution to be laid before the people of
said State; and that every thousand inhabitants in the towns in
said State should be entitled to one delegate, and each ward in the
city of Providence to three delegates, as appears by the following
request duly published and proclaimed; also an address from said
committee to the people of the State. See the copies of said
request and address, hereunto annexed, and marked J a, J b."

															"11th. The plaintiff offered to prove that the said notice,
request, or call was duly published and promulgated in public
newspapers printed and published in said State, and by handbills
which were struck up in the public houses, and at various other
places of public resort, in all the towns, and in every ward in the
city of Providence, in said State."

															"12th. The plaintiff offered to prove, that, at the adjourned
mass convention aforementioned as held at Providence, in said Page 48 U. S. 13 State, on the 5th day of July, A.D. 1841, the people of the
State then present did by vote duly taken enlarge said State
committee by the addition of the following-named persons, all
citizens of this State, to-wit:"

															"Providence County, Henry L. Webster, Philip B. Stiness, Metcalf
Marsh."

															"Newport County, Silas Sissons."

															"Bristol County, Abijah Luce."

															"Kent County, John B. Sheldon."

															"Washington County, Wager Weeden, Charles Allen."

															"13th. The plaintiff offered to prove that, at the meeting of
the said State committee, on the 20th day of July, 1841, at
Providence aforesaid, when the said notice, request, or call was
ordered, the following members of said committee were present, and
approved of the aforesaid call, and of all the proceedings then
had, to-wit: Samuel H. Wales, Henry L. Webster, Benjamin Arnold,
Jr., Welcome B. Sayles, Metcalf Marsh, Philip B. Stiness, Dutee J.
Pearce, Silas Sissons, Benjamin M. Bosworth, Abijah Luce, Sylvester
Himes."

															"14th. The plaintiff then offered to prove that, in the month of
August, 1841, citizens of this State, qualified as aforesaid, did
meet in their several towns, and in the several wards in the said
city of Providence, and made choice of delegates, in conformity
with said notice, to meet in convention to form a draft of a
constitution to be laid before the people of this State, and he
offered the chairman presiding at said meetings, and the persons
acting as clerks of the same, the votes or ballots then and there
cast by the persons voting thereon, and of the persons then and
there voting, to prove the aforesaid facts, and to prove the number
of citizens so voting."

															"15th. The plaintiff offered to prove that the said delegates
did meet in convention in said city of Providence in the month of
October, 1841, and drafted a constitution, and submitted it to the
people of said State for their examination, and then adjourned, to
meet in said city of Providence in the month of November, A.D.
1841, and he offered to prove this by the production of the
original minutes, or records, of the proceedings of said
convention, verified by the oaths of the presidents and secretaries
thereof, and of divers persons attending the same, as members
thereof, or delegates thereto."

															"16th. The plaintiff offered to prove that, in pursuance of said
adjournment, the said delegates did again meet in convention, in
said Providence, in said month of November, and then completed the
draft of the following constitution (a copy of which is hereunto
annexed marked K), and submitted the same to the people of said
State for their adoption or rejection, recommending Page 48 U. S. 14 them to express their will on the subject at meetings to be duly
presided over by moderators and clerks and by writing their names
and their tickets, and to be holden in their several towns, and in
the several wards of the city of Providence, on Monday, the 27th
day of December, and on the two next successive days, and that any
person entitled to vote, who, from sickness or other cause, might
be unable to attend and vote in the town or ward meeting on the
days aforesaid might write his name on a ticket and obtain the
signature upon the back of the same, as a witness thereto, of a
person who had given in his vote, which tickets were in the
following form, to-wit:"

															" I am an American citizen, of the age of twenty-one years, and
have my permanent residence, or home, in this State; I am (or not)
qualified to vote under the existing laws of this State. I vote
(for or against) the constitution formed by the convention of the
people assembled in Providence, and which was proposed to the
people by said convention on the 18th day of November, A.D.
1841;"

															"which votes the moderator or clerk of any town or ward meetings
should receive on either of the three days succeeding the three
days before named, and which he offered to prove by the production
of said original minutes and records as aforesaid, verified as
aforesaid, and by the testimony of said persons aforesaid, and by
the 14th article of said constitution."

															"17th. The plaintiff offered to prove that meetings were held in
the several towns and wards of the city of Providence aforesaid,
and on the days aforesaid for the purposes aforesaid, in pursuance
of the requirements of said constitution, and the said moderators
and clerks did receive, on said three successive days, such votes
of persons qualified as aforesaid, and then carefully kept and made
registers of all the persons voting, which, together with the
tickets given in by the voters, were sealed up and returned by said
moderators and clerks, with certificates signed and sealed by them,
to the secretary of said convention, to be counted and declared at
their adjourned meeting, on the 12th day of January, A.D. 1842, all
of which he offered to prove by the testimony of the several
moderators presiding at said meeting, and of the clerks of the
same, and of the secretaries of said convention, and by the
production of the original votes or ballots cast or polled by the
persons then and there voting, the original registers of all said
persons so voting, and the said certificates, signed and sealed as
aforesaid, verified by the oaths of said moderators and
clerks."

															"18th. The plaintiff offered to prove that the said convention
of delegates did meet in said Providence, on the said 12th day of
January, 1842, and did then and there count the said votes, Page 48 U. S. 15 and the said convention thereafterwards, on the said 13th day of
said January, did pass the preamble and resolutions following,
to-wit:"

															" Whereas, by the return of the votes upon the constitution
proposed to the citizens of this State by this convention, the 18th
day of November last, it satisfactorily appears that the citizens
of this State, in their original sovereign capacity, have ratified
and adopted said constitution by a large majority; and the will of
the people, thus decisively made known, ought to be implicitly
obeyed and faithfully executed."

															" We do therefore resolve and declare that said constitution
rightfully ought to be, and is, the paramount law and constitution
of the State of Rhode Island and Providence Plantations."

															" And we further resolve and declare, for ourselves and in
behalf of the people whom we represent, that we will establish said
constitution and sustain and defend the same by all necessary
means."

															" Resolved, That the officers of this convention make
proclamation of the return of the votes upon the constitution, and
that the same has been adopted and become the constitution of this
State, and that they cause said proclamation to be published in the
newspapers of the same."

															" Resolved, That a certified copy of the report of the committee
appointed to count the votes upon the constitution, and of these
resolutions, and of the constitution, be sent to his Excellency the
Governor, with a request that he would communicate the same to the
two houses of the General Assembly."

															"A copy of which resolutions and proceedings is annexed, marked
L c."

															"And he further offered to prove that the same was sent to said
Governor, and by him communicated to the said General Assembly, and
by them laid on the table, and that, by a subsequent resolution of
the House of Representatives in said General Assembly, the further
consideration thereof was indefinitely postponed. All these matters
he offered to prove by the production of the original minutes or
records of the convention aforesaid, verified by the oaths of the
president, vice-presidents, and secretaries thereof, by the report
of the committee appointed by said convention to count said votes,
verified by the certificate of the secretaries of said convention,
and by the oaths of the members of said committee, and by the
certificate of Henry Bowen, Secretary of State under the then
acting government, and of Thomas A. Jenks, one of the clerks of the
then House of Representatives. And he further offered to prove,
that, at the same session of said Assembly, a member of the House
of Representatives submitted to that body, for their Page 48 U. S. 16 action, a resolution referring all the matters connected with
the formation and adoption of the aforesaid constitution to a
select committee, with instructions to them to ascertain and report
the number of votes cast, and the number of persons voting for the
same, with full power to send for persons and papers; which
resolution was rejected by said House of Representatives, as
appears by copies of the records of the said House for said
session, hereunto annexed, and marked L a, and the exhibit hereunto
annexed, marked L b, and the testimony of witnesses."

															"19th. The plaintiff then offered to prove that the officers of
said convention did make the proclamation required by the said
resolution of the said convention, and he offered to prove this by
a copy of said proclamation, certified by said officers, the oaths
of said officers, and the testimony of other witnesses. See form of
proclamation annexed, marked X."

															"20th. The plaintiff then offered to prove that the said
constitution was adopted by a large majority of the male people of
this State, of the age of twenty-one years and upwards, who were
qualified to vote under said constitution, and also adopted by a
majority of the persons entitled to vote for general officers under
the then existing laws of the said State, and according to the
provisions thereof, and that so much of the same as relates to the
election of the officers named in the sixth section of the
fourteenth article of said constitution, on the Monday before the
3d Wednesday of April, A.D. 1842, to-wit, on the 18th day of said
April, and all the other parts thereof on the first Tuesday of May,
1842, to-wit, on the 3d day of said May, and then and there became,
and was, the rightful and legal constitution of said State, and
paramount law of said State; and this he offered to prove by the
production of the original votes or ballots cast or polled by the
persons voting for or against the adoption of said constitution, by
the production of the original registers of the persons so voting,
verified by the oaths of the several moderators and clerks of the
meetings held for such votings, by the testimony of all the persons
so voting, and by the said constitution."

															"21st. The plaintiff produced a copy of said constitution,
verified by the certificates of Joseph Joslin, president of said
convention of delegates elected and assembled as aforesaid, and for
the purposes aforesaid, and of Samuel H. Wales, one of the
vice-presidents, and of John S. Harris and William Smith,
secretaries of the same, and offered the said Joslin, Wales,
Harris, and Smith as witnesses to prove the truth of the matters
set forth in said certificates, which said copy, upon the proof
aforesaid, he claimed to be a true and authenticated copy of said
constitution, and which constitution he claimed to be the paramount
law of the said State. " Page 48 U. S. 17 "22d. The plaintiff offered to prove, that, by virtue of, and in
conformity with, the provisions of said constitution, so adopted as
aforesaid, the people of said State entitled to vote for general
officers, Senators and Representatives, to the General Assembly of
said State, under said constitution, did meet, in legal town and
ward meetings, on the third Wednesday of April next preceding the
first Tuesday of May, 1842, to-wit, on the 18th day of April, 1842,
and did elect duly the officers required by said constitution for
the formation of the government under said constitution, and that
said meetings were conducted and directed according to the
provisions of said constitution and the laws of said State, and
this he offered to prove by the evidence of the moderators and
clerks of said meetings, and the persons present at the same."

															"23d. The plaintiff offered in evidence that the said general
officers, to-wit, the Governor, Lieutenant-Governor, Secretary of
State, Senators and Representatives, all constituting the General
Assembly of said State under said constitution, did assemble in
said city of Providence on the first Tuesday of May, A.D. 1842,
to-wit, on the 3d day of May, 1842, and did then and there organize
a government for the said State, in conformity with the provisions
and requirements of said constitution, and did elect, appoint, and
qualify officers to carry the said constitution and laws into
effect, and, to prove the same, he offered exemplified copies of
the acts and doings of said General Assembly, hereunto annexed, and
marked N a, N b, N c."

															"24th. The plaintiff offered in evidence a duly certified copy
of that part of the census of the United States for the year 1840,
which applies to the District and State of Rhode Island, &c.,
hereunto annexed, and marked O."

															"25th. The plaintiff offered in evidence a certificate signed by
Henry Bowen, Secretary of State of the then existing government of
the State of Rhode Island, &c., showing the number of votes
polled by the freemen in said State for ten years then last past; a
copy of which is hereunto annexed, marked P. Also, under the same
certificate, an act marked Q, purporting to establish martial
law."

															"26th. And the plaintiff offered in evidence an authenticated
copy of an act of the General Assembly under the charter
government, passed at their June session, A.D. 1842, entitled 'An
Act to provide for calling a Convention of the People,' &c.,
and an act in amendment thereto; which said copy is hereunto
annexed, marked Q a. And also a copy of _____ from the records of
the House of Representatives (under said government), at their
March session, A.D. 1842, hereunto annexed, marked R. " Page 48 U. S. 18 "Whereupon, the counsel for the plaintiff requested the court to
charge the jury, that, under the facts offered in evidence by the
plaintiff, the constitution and frame of government prepared,
adopted, and established in the manner and form set forth and shown
thereby was, and became thereby, the supreme law of the State of
Rhode Island, and was in full force and effect, as such, during the
time set forth in the plaintiff's writ and declaration, when the
trespass alleged therein was committed by the defendants, as
admitted in their pleas."

															"That a majority of the free white male citizens of Rhode
Island, of twenty-one years and upwards, in the exercise of the
sovereignty of the people, through the forms and in the manner set
forth in said evidence, offered to be proved by the plaintiff, and
in the absence, under the then existing frame of government of the
said State of Rhode Island, of any provision therein for amending,
altering, reforming, changing, or abolishing the said frame of
government, had the right to reassume the powers of government, and
establish a written constitution and frame of a republican form of
government; and that having so exercised such right as aforesaid,
the preexisting charter government, and the authority and the
assumed laws under which the defendants in their plea claim to have
acted, became null and void and of no effect, so far as they were
repugnant to and conflicted with said constitution, and are no
justification of the acts of the defendants in the premises."

															"And the court, pro forma and upon the understandings
of the parties to carry up the rulings and exceptions of the said
court to the Supreme Court of the United States, refused to give
the said instructions, or to admit in evidence the facts offered to
be proved by the plaintiff, but did admit the testimony offered to
be proved by the defendants, and did rule that the government and
laws, under which they assume in their plea to have acted, were in
full force and effect as the frame of government and laws of the
State of Rhode Island, and did constitute a justification of the
acts of the defendants, as set forth in their pleas."

															"To which refusals of the court so to instruct the jury as
prayed for, as well as to the instructions so as aforesaid given by
the court to the jury, the plaintiff, by his counsel, excepted, and
prayed the exceptions to be allowed by the court. And after the
said instructions were so refused, and so given as aforesaid, the
jury withdrew, and afterwards returned their verdict for the
defendants."

															"And inasmuch as the said several matters of law, and the said
several matters of fact, so produced and given in evidence on the
part of the said plaintiff and the said defendants, and by Page 48 U. S. 19 their counsel insisted on and objected to in manner as
aforesaid, do not appear by the record and verdict aforesaid; the
said counsel for the plaintiff did then and there propose the
aforesaid exceptions to the said refusals and opinions of said
court, and requested them to put the seal of said court to this
bill of exceptions, containing the said several matters so produced
and given in evidence for the party objecting as aforesaid."

															"And thereupon the judges of the aforesaid court, at the request
of the counsel for the party objecting, did put their said seal to
this bill of exceptions, the same being found to be true, pursuant
to the law in such cases provided, at the term of said court and
the trial aforesaid."

															"JOSEPH STORY [SEAL.]"

															The papers referred to in the above bill of exceptions, and made
a part of it, were so voluminous that it is impossible to insert
them. They constituted a volume of 150 pages. Page 48 U. S. 34 Mr. Chief Justice TANEY delivered the opinion of the court.

															This case has arisen out of the unfortunate political
differences which agitated the people of Rhode Island in 1841 and
1842.

															It is an action of trespass brought by Martin Luther, the
plaintiff in error, against Luther M. Borden and others, the
defendants, in the Circuit Court of the United States for the
District of Rhode Island, for breaking and entering the plaintiff's
house. The defendants justify upon the ground that large numbers of
men were assembled in different parts of the State for the purpose
of overthrowing the government by military force, and were actually
levying war upon the State; that, in order to defend itself from
this insurrection, the State was declared by competent authority to
be under martial law; that the plaintiff was engaged in the
insurrection; and that the defendants, being in the military
service of the State, by command of their superior officer, broke
and entered the house and searched the rooms for the plaintiff, who
was supposed to be there concealed, in order to arrest him, doing
as little damage as possible. The plaintiff replied that the
trespass was committed by the defendants of their own proper wrong,
and without any such cause; and upon the issue joined on this
replication, the parties proceeded to trial.

															The evidence offered by the plaintiff and the defendants is Page 48 U. S. 35 stated at large in the record, and the questions decided by the
Circuit Court, and brought up by the writ of error, are not such as
commonly arise in an action of trespass. The existence and
authority of the government under which the defendants acted was
called in question, and the plaintiff insists that, before the acts
complained of were committed, that government had been displaced
and annulled by the people of Rhode Island, and that the plaintiff
was engaged in supporting the lawful authority of the State, and
the defendants themselves were in arms against it.

															This is a new question in this court, and certainly a very grave
one, and, at the time when the trespass is alleged to have been
committed, it had produced a general and painful excitement in the
State, and threatened to end in bloodshed and civil war.

															The evidence shows that the defendants, in breaking into the
plaintiff's house and endeavouring to arrest him, as stated in the
pleadings, acted under the authority of the government which was
established in Rhode Island at the time of the Declaration of
Independence, and which is usually called the charter government.
For when the separation from England took place, Rhode Island did
not, like the other States, adopt a new constitution, but continued
the form of government established by the charter of Charles the
Second in 1663, making only such alterations, by acts of the
legislature, as were necessary to adapt it to their condition and
rights as an independent State. It was under this form of
government that Rhode Island united with the other States in the
Declaration of Independence, and afterwards ratified the
Constitution of the United States and became a member of this
Union, and it continued to be the established and unquestioned
government of the State until the difficulties took place which
have given rise to this action.

															In this form of government, no mode of proceeding was pointed
out by which amendments might be made. It authorized the
legislature to prescribe the qualification of voters, and, in the
exercise of this power, the right of suffrage was confined to
freeholders until the adoption of the constitution of 1843.

															For some years previous to the disturbances of which we are now
speaking, many of the citizens became dissatisfied with the charter
government, and particularly with the restriction upon the right of
suffrage. Memorials were addressed to the legislature upon this
subject urging the justice and necessity of a more liberal and
extended rule. But they failed to produce the desired effect. And
thereupon, meetings were held and associations formed by those who
were in favor of a more extended right of suffrage, which finally
resulted in the election Page 48 U. S. 36 of a convention to form a new constitution to be submitted to
the people for their adoption or rejection. This convention was not
authorized by any law of the existing government. It was elected at
voluntary meetings, and by those citizens only who favored this
plan of reform, those who were opposed to it, or opposed to the
manner in which it was proposed to be accomplished taking no part
in the proceedings. The persons chosen as above mentioned came
together and framed a constitution by which the right of suffrage
was extended to every male citizen of twenty-one years of age who
had resided in the State for one year, and in the town in which the
offered to vote for six months next preceding the election. The
convention also prescribed the manner in which this constitution
should be submitted to the decision of the people, permitting
everyone to vote on that question who was an American citizen,
twenty-one years old, and who had a permanent residence or home in
the State, and directing the votes to be returned to the
convention.

															Upon the return of the votes, the convention declared that the
constitution was adopted and ratified by a majority of the people
of the State, and was the paramount law and constitution of Rhode
Island. And it communicated this decision to the governor under the
charter government for the purpose of being laid before the
legislature, and directed elections to be held for a governor,
members of the legislature, and other officers under the new
constitution. These elections accordingly took place, and the
governor, lieutenant-governor, secretary of state, and senators and
representatives thus appointed assembled at the city of Providence
on May 3d, 1842, and immediately proceeded to organize the new
government by appointing the officers and passing the laws
necessary for that purpose.

															The charter government did not, however, admit the validity of
these proceedings nor acquiesce in them. On the contrary, in
January, 1842, when this new constitution was communicated to the
governor, and by him laid before the legislature, it passed
resolutions declaring all acts done for the purpose of imposing
that constitution upon the State to be an assumption of the powers
of government in violation of the rights of the existing government
and of the people at large, and that it would maintain its
authority and defend the legal and constitutional rights of the
people.

															In adopting this measure as well as in all others taken by the
charter government to assert its authority, it was supported by a
large number of the citizens of the State, claiming to be a
majority, who regarded the proceedings of the adverse party as Page 48 U. S. 37 unlawful and disorganizing, and maintained that, as the existing
government had been established by the people of the State, no
convention to frame a new constitution could be called without its
sanction, and that the times and places of taking the votes, and
the officers to receive them, and the qualification of the voters,
must be previously regulated and appointed by law.

															But notwithstanding the determination of the charter government
and of those who adhered to it to maintain its authority, Thomas W.
Dorr, who had been elected governor under the new constitution,
prepared to assert the authority of that government by force, and
many citizens assembled in arms to support him. The charter
government thereupon passed an act declaring the State under
martial law, and at the same time proceeded to call out the militia
to repel the threatened attack and to subdue those who were engaged
in it. In this state of the contest, the house of the plaintiff,
who was engaged in supporting the authority of the new government,
was broken and entered in order to arrest him. The defendants were,
at the time, in the military service of the old government, and in
arms to support its authority.

															It appears, also that the charter government. at its session of
January, 1842, took measures to call a convention to revise the
existing form of government, and, after various proceedings, which
it is not material to state, a new constitution was formed by a
convention elected under the authority of the charter government,
and afterwards adopted and ratified by the people, the times and
places at which the votes were to be given, the persons who were to
receive and return them, and the qualification of the voters,
having all been previously authorized and provided for by law
passed by the charter government. This new government went into
operation in May, 1843, at which time the old government formally
surrendered all its powers, and this constitution has continued
ever since to be the admitted and established government of Rhode
Island.

															The difficulties with the government of which Mr. Dorr was the
head were soon over. They had ceased before the constitution was
framed by the convention elected by the authority of the charter
government. For after an unsuccessful attempt made by Mr. Dorr in
May, 1842, at the head of a military force, to get possession of
the State arsenal at Providence, in which he was repulsed, and an
assemblage of some hundreds of armed men under his command at
Chepatchet in the June following, which dispersed upon the approach
of the troops of the old government, no further effort was made to
establish it, and, until the constitution of 1843 went into
operation, the charter government continued to assert its
authority Page 48 U. S. 38 and exercise its powers and to enforce obedience throughout the
State, arresting and imprisoning and punishing in its judicial
tribunals those who had appeared in arms against it.

															We do not understand from the argument that the constitution
under which the plaintiff acted is supposed to have been in force
after the constitution of May, 1843, went into operation. T he
contest is confined to the year preceding. The plaintiff contends
that the charter government was displaced, and ceased to have any
lawful power, after the organization, in May, 1842, of the
government which he supported, and although that government never
was able to exercise any authority in the State nor to command
obedience to its laws or to its officers, yet he insists that it
was the lawful and established government upon the ground that it
was ratified by a large majority of the male people of the State of
the age of twenty-one and upwards, and also by a majority of those
who were entitled to vote for general officers under the then
existing laws of the State. The fact that it was so ratified was
not admitted, and, at the trial in the Circuit Court, he offered to
prove it by the production of the original ballots and the original
registers of the persons voting, verified by the oaths of the
several moderators and clerks of the meetings, and by the testimony
of all the persons so voting, and by the said constitution, and
also offered in evidence for the same purpose that part of the
census of the United States for the year 1840 which applies to
Rhode Island and a certificate of the secretary of state of the
charter government showing the number of votes polled by the
freemen of the State for the ten years then last past.

															The Circuit Court rejected this evidence, and instructed the
jury that the charter government and laws under which the
defendants acted were, at the time the trespass is alleged to have
been committed, in full force and effect as the form of government
and paramount law of the State, and constituted a justification of
the acts of the defendants as set forth in their pleas.

															It is this opinion of the Circuit Court that we are now called
upon to review. It is set forth more at large in the exception, but
is in substance as above stated, and the question presented is
certainly a very serious one. For if this court is authorized to
enter upon this inquiry as proposed by the plaintiff, and it should
be decided that the charter government had no legal existence
during the period of time above mentioned, if it had been annulled
by the adoption of the opposing government, then the laws passed by
its legislature during that time were nullities, its taxes
wrongfully collected, its salaries and compensation Page 48 U. S. 39 to its officers illegally paid, its public accounts improperly
settled, and the judgments and sentences of its courts in civil and
criminal cases null and void, and the officers who carried their
decisions into operation answerable as trespassers, if not, in some
cases, as criminals.

															When the decision of this court might lead to such results, it
becomes its duty to examine very carefully its own powers before it
undertakes to exercise jurisdiction.

															Certainly the question which the plaintiff proposed to raise by
the testimony he offered has not heretofore been recognized as a
judicial one in any of the State courts. In forming the
constitutions of the different States after the Declaration of
Independence, and in the various changes and alterations which have
since been made, the political department has always determined
whether the proposed constitution or amendment was ratified or not
by the people of the State, and the judicial power has followed its
decision. In Rhode Island, the question has been directly decided.
Prosecutions were there instituted against some of the persons who
had been active in the forcible opposition to the old government.
And in more than one of the cases, evidence was offered on the part
of the defence similar to the testimony offered in the Circuit
Court, and for the same purpose -- that is, for the purpose of
showing that the proposed constitution had been adopted by the
people of Rhode Island, and had therefore become the established
government, and consequently that the parties accused were doing
nothing more than their duty in endeavouring to support it.

															But the courts uniformly held that the inquiry proposed to be
made belonged to the political power, and not to the judicial; that
it rested with the political power to decide whether the charter
government had been displaced or not; and when that decision was
made, the judicial department would be bound to take notice of it
as the paramount law of the State, without the aid of oral evidence
or the examination of witnesses; that, according to the laws and
institutions of Rhode Island, no such change had been recognized by
the political power; and that the charter government was the lawful
and established government of the State during the period in
contest, and that those who were in arms against it were
insurgents, and liable to punishment. This doctrine is clearly and
forcibly stated in the opinion of the Supreme Court of the State in
the trial of Thomas W. Dorr, who was the governor elected under the
opposing constitution, and headed the armed force which endeavoured
to maintain its authority. Indeed, we do not see how the question
could be tried and Page 48 U. S. 40 judicially decided in a State court. Judicial power presupposes
an established government capable of enacting laws and enforcing
their execution, and of appointing judges to expound and administer
them. The acceptance of the judicial office is a recognition of the
authority of the government from which it is derived. And if the
authority of that government is annulled and overthrown, the power
of its courts and other officers is annulled with it. And if a
State court should enter upon the inquiry proposed in this case,
and should come to the conclusion that the government under which
it acted had been put aside and displaced by an opposing
government, it would cease to be a court, and be incapable of
pronouncing a judicial decision upon the question it undertook to
try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is
exercising judicial power.

															It is worthy of remark, however, when we are referring to the
authority of State decisions, that the trial of Thomas W. Dorr took
place after the constitution of 1843 went into operation. The
judges who decided that case held their authority under that
constitution, and it is admitted on all hands that it was adopted
by the people of the State, and is the lawful and established
government. It is the decision, therefore, of a State court whose
judicial authority to decide upon the constitution and laws of
Rhode Island is not questioned by either party to this controversy,
although the government under which it acted was framed and adopted
under the sanction and laws of the charter government.

															The point, then, raised here has been already decided by the
courts of Rhode Island. The question relates altogether to the
constitution and laws of that State, and the well settled rule in
this court is that the courts of the United States adopt and follow
the decisions of the State courts in questions which concern merely
the constitution and laws of the State.

															Upon what ground could the Circuit Court of the United States
which tried this case have departed from this rule, and disregarded
and overruled the decisions of the courts of Rhode Island?
Undoubtedly the courts of the United States have certain powers
under the Constitution and laws of the United States which do not
belong to the State courts. But the power of determining that a
State government has been lawfully established, which the courts of
the State disown and repudiate, is not one of them. Upon such a
question, the courts of the United States are bound to follow the
decisions of the State tribunals, and must therefore regard the
charter government as the lawful established government during the
time of this contest. Page 48 U. S. 41 Besides, if the Circuit Court had entered upon this inquiry, by
what rule could it have determined the qualification of voters upon
the adoption or rejection of the proposed constitution unless there
was some previous law of the State to guide it? It is the province
of a court to expound the law, not to make it. And certainly it is
no part of the judicial functions of any court of the United States
to prescribe the qualification of voters in a State, giving the
right to those to whom it is denied by the written and established
constitution and laws of the State, or taking it away from those to
whom it is given; nor has it the right to determine what political
privileges the citizens of a State are entitled to, unless there is
an established constitution or law to govern its decision.

															And if the then existing law of Rhode Island which confined the
right of suffrage to freeholders is to govern, and this question is
to be tried by that rule, how could the majority have been
ascertained by legal evidence such as a court of justice might
lawfully receive? The written returns of the moderators and clerks
of mere voluntary meetings, verified by affidavit, certainly would
not be admissible, nor their opinions who judgments as to the
freehold qualification of the persons who voted. The law requires
actual knowledge in the witness of the fact to which he testifies
in a court of justice. How, then, could the majority of freeholders
have been determined in a judicial proceeding?

															The court had not the power to order a census of the freeholders
to be taken, nor would the census of the United States of 1840 be
any evidence of the number of freeholders in the State in 1842. Nor
could the court appoint persons to examine and determine whether
every person who had voted possessed the freehold qualification
which the law then required. In the nature of things, the Circuit
Court could not know the name and residence of every citizen, and
bring him before the court to be examined. And if this were
attempted, where would such an inquiry have terminated? And how
long must the people of Rhode Island have waited to learn from this
court under what form of government they were living during the
year in controversy?

															But this is not all. The question as to the majority is a
question of fact. It depends upon the testimony of witnesses, and
if the testimony offered by the plaintiff had been received, the
defendants had the right to offer evidence to rebut it, and there
might, and probably would, have been conflicting testimony as to
the number of voters in the State, and as to the legal
qualifications of many of the individuals who had voted. The
decision would, therefore, have depended upon the relative Page 48 U. S. 42 credibility of witnesses and the weight of testimony, and, as
the case before the Circuit Court was an action at common law, the
question of fact, according to the seventh amendment to the
Constitution of the United States, must have been tried by the
jury. In one case, a jury might find that the constitution which
the plaintiff supported was adopted by a majority of the citizens
of the State, or of the voters entitled to vote by the existing
law. Another jury in another case might find otherwise. And as a
verdict is not evidence in a suit between different parties, if the
courts of the United States have the jurisdiction contended for by
the plaintiff, the question whether the acts done under the charter
government during the period in contest are valid or not must
always remain unsettled and open to dispute. The authority and
security of the State governments do not rest on such unstable
foundations.

															Moreover, the Constitution of the United States, as far as it
has provided for an emergency of this kind and authorized the
general government to interfere in the domestic concerns of a
State, has treated the subject as political in its nature, and
placed the power in the hands of that department.

															The fourth section of the fourth article of the Constitution of
the United States provides that the United States shall guarantee
to every State in the Union a republican form of government, and
shall protect each of them against invasion, and on the application
of the legislature or of the executive (when the legislature cannot
be convened) against domestic violence.

															Under this article of the Constitution, it rests with Congress
to decide what government is the established one in a State. For as
the United States guarantee to each State a republican government,
Congress must necessarily decide what government is established in
the State before it can determine whether it is republican or not.
And when the senators and representatives of a State are admitted
into the councils of the Union, the authority of the government
under which they are appointed, as well as its republican
character, is recognized by the proper constitutional authority.
And its decision is binding on every other department of the
government, and could not be questioned in a judicial tribunal. It
is true that the contest in this case did not last long enough to
bring the matter to this issue, and, as no senators or
representatives were elected under the authority of the government
of which Mr. Dorr was the head, Congress was not called upon to
decide the controversy. Yet the right to decide is placed there,
and not in the courts.

															So, too, as relaters to the clause in the above-mentioned
article of the Constitution, providing for cases of domestic
violence. Page 48 U. S. 43 It rested with Congress, too, to determine upon the means proper
to be adopted to fulfil this guarantee. They might, if they had
deemed it most advisable to do so, have placed it in the power of a
court to decide when the contingency had happened which required
the federal government to interfere. But Congress thought
otherwise, and no doubt wisely, and, by the act of February 28,
1795, provided that,

															"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 sufficient to suppress
such insurrection."

															By this act, the power of deciding whether the exigency had
arisen upon which the government of the United States is bound to
interfere is given to the President. He is to act upon the
application of the legislature or of the executive, and
consequently he must determine what body of men constitute the
legislature, and who is the governor, before he can act. The fact
that both parties claim the right to the government cannot alter
the case, for both cannot be entitled to it. If there is an armed
conflict like the one of which we are speaking, it is a case of
domestic violence, and one of the parties must be in insurrection
against the lawful government. And the President must, of
necessity, decide which is the government and which party is
unlawfully arrayed against it before he can perform the duty
imposed upon him by the act of Congress.

															After the President has acted and called out the militia, is a
Circuit Court of the United States authorized to inquire whether
his decision was right? Could the court, while the parties were
actually contending in arms for the possession of the government,
call witnesses before it and inquire which party represented a
majority of the people? If it could, then it would become the duty
of the court (provided it came to the conclusion that the President
had decided incorrectly) to discharge those who were arrested or
detained by the troops in the service of the United States or the
government which the President was endeavouring to maintain. If the
judicial power extends so far, the guarantee contained in the
Constitution of the United States is a guarantee of anarchy, and
not of order. Yet if this right does not reside in the courts when
the conflict is raging, if the judicial power is at that time bound
to follow the decision of the political, it must be equally bound
when the contest is over. It cannot, when peace is restored, punish
as offences and crimes the acts which it before recognized, and was
bound to recognize, as lawful. Page 48 U. S. 44 It is true that, in this case, the militia were not called out
by the President. But, upon the application of the governor under
the charter government, the President recognized him as the
executive power of the State, and took measures to call out the
militia to support his authority if it should be found necessary
for the general government to interfere, and it is admitted in the
argument that it was the knowledge of this decision that put an end
to the armed opposition to the charter government and prevented any
further efforts to establish by force the proposed constitution.
The interference of the President, therefore, by announcing his
determination was as effectual as if the militia had been assembled
under his orders. And it should be equally authoritative. For
certainly no court of the United States, with a knowledge of this
decision, would have been justified in recognizing the opposing
party as the lawful government or in treating as wrongdoers or
insurgents the officers of the government which the President had
recognized, and was prepared to support by an armed force. In the
case of foreign nations, the government acknowledged by the
President is always recognized in the courts of justice. And this
principle has been applied by the act of Congress to the sovereign
States of the Union.

															It is said that this power in the President is dangerous to
liberty, and may be abused. All power may be abused if placed in
unworthy hands. But it would be difficult, we think, to point out
any other hands in which this power would be more safe, and at the
same time equally effectual. When citizens of the same State are in
arms against each other, and the constituted authorities unable to
execute the laws, the interposition of the United States must be
prompt or it is of little value. The ordinary course of proceedings
in courts of justice would be utterly unfit for the crisis. And the
elevated office of the President, chosen as he is by the people of
the United States, and the high responsibility he could not fail to
feel when acting in a case of so much moment, appear to furnish as
strong safeguards against a wilful abuse of power as human prudence
and foresight could well provide. At all events, it is conferred
upon him by the Constitution and laws of the United States, and
must therefore be respected and enforced in its judicial
tribunals.

															A question very similar to this arose in the case of Martin v.
Mott , 12 Wheat. 29-31. The first clause of the
first section of the act of February 28, 1795, of which we have
been speaking, authorizes the President to call out the militia to
repel invasion. It is the second clause in the same section which
authorizes the call to suppress an insurrection against a State Page 48 U. S. 45 government. The power given to the President in each case is the
same, with this difference only, that it cannot be exercised by him
in the latter case except upon the application of the legislature
or executive of the State. The case above mentioned arose out of a
call made by the President by virtue of the power conferred by the
first clause, and the court said that

															"whenever a statute gives a discretionary power to any person to
be exercised by him upon his own opinion of certain facts, it is a
sound rule of construction that the statute constitutes him the
sole and exclusive judge of the existence of those facts."

															The grounds upon which that opinion is maintained are set forth
in the report, and we think are conclusive. The same principle
applies to the case how before the court. Undoubtedly, if the
President in exercising this power, shall fall into error or invade
the rights of the people of the State, it would be in the power of
Congress to apply the proper remedy. But the courts must administer
the law as they find it.

															The remaining question is whether the defendants, acting under
military orders issued under the authority of the government, were
justified in breaking and entering the plaintiff's house. In
relation to the act of the legislature declaring martial law, it is
not necessary in the case before us to inquire to what extent, nor
under what circumstances, that power may be exercised by a State.
Unquestionably a military government, established a the permanent
government of the State, would not be a republican government, and
it would be the duty of Congress to overthrow it. But the law of
Rhode Island evidently contemplated no such government. It was
intended merely for the crisis, and to meet the peril in which the
existing government was placed by the armed resistance to its
authority. It was so understood and construed by the State
authorities. And unquestionably a State may use its military power
to put down an armed insurrection too strong to be controlled by
the civil authority. The power is essential to the existence of
every government, essential to the preservation of order and free
institutions, and is as necessary to the States of this Union as to
any other government. The State itself must determine what degree
of force the crisis demands. And if the government of Rhode Island
deemed the armed opposition so formidable and so ramified
throughout the State as to require the use of its military force
and the declaration of martial law, we see no ground upon which
this court can question its authority. It was a state of war, and
the established government resorted to the rights and usages of war
to maintain itself, and to overcome the unlawful opposition. And in
that state of things, the officers engaged in its military
service Page 48 U. S. 46 might lawfully arrest anyone who, from the information before
them, they had reasonable grounds to believe was engaged in the
insurrection, and might order a house to be forcibly entered and
searched when there were reasonable grounds for supposing he might
be there concealed. Without the power to do this, martial law and
the military array of the government would be mere parade, and
rather encourage attack than repel it. No more force, however, can
be used than is necessary to accomplish the object. And if the
power is exercised for the purposes of oppression, or any injury
wilfully done to person or property, the party by whom, or by whose
order, it is committed would undoubtedly be answerable.

															We forbear to remark upon the cases referred to in the argument
in relation to the commissions anciently issued by the kings of
England to commissioners to proceed against certain descriptions of
persons in certain places by the law martial. These commissions
were issued by the king at his pleasure, without the concurrence or
authority of Parliament, and were often abused for the most
despotic and oppressive purposes. They were used before the regal
power of England was well defined, and were finally abolished and
prohibited by the petition of right in the reign of Charles the
First. But they bear no analogy in any respect to the declaration
of martial law by the legislative authority of the State, made for
the purposes of self-defence, when assailed by an armed force, and
the cases and commentaries concerning these commissions cannot,
therefore, influence the construction of the Rhode Island law, nor
furnish any test of the lawfulness of the authority exercised by
the government.

															Upon the whole, we see no reason for disturbing the judgment of
the Circuit Court. The admission of evidence to prove that the
charter government was the established government of the State was
an irregularity, but is not material to the judgment. A Circuit
Court of the United States sitting in Rhode Island is presumed to
know the constitution and law of the State. And in order to make up
its opinion upon that subject, it seeks information from any
authentic and available source, without waiting for the formal
introduction of testimony to prove it and without confining itself
to the process which the parties may offer. But this error of the
Circuit Court does not affect the result. For whether this evidence
was or was not received, the Circuit Court, for the reasons herein
before stated, was bound to recognize that government as the
paramount and established authority of the State.

															Much of the argument on the part of the plaintiff turned upon
political rights and political questions, upon which the Page 48 U. S. 47 court has been urged to express an opinion. We decline doing so.
The high power has been conferred on this court of passing judgment
upon the acts of the State sovereignties, and of the legislative
and executive branches of the federal government, and of
determining whether they are beyond the limits of power marked out
for them respectively by the Constitution of the United States.
This tribunal, therefore, should be the last to overstep the
boundaries which limit its own jurisdiction. And while it should
always be ready to meet any question confided to it by the
Constitution, it is equally its duty not to pass beyond its
appropriate sphere of action, and to take care not to involve
itself in discussions which properly belong to other forums. No
one, we believe, has ever doubted the proposition that, according
to the institutions of this country, the sovereignty in every State
resides in the people of the State, and that they may alter and
change their form of government at their own pleasure. But whether
they have changed it or not by abolishing an old government and
establishing a new one in its place is a question to be settled by
the political power. And when that power has decided, the courts
are bound to take notice of its decision, and to follow it.

															The judgment of the Circuit Court must therefore be
affirmed. RACHEL LUTHER v. LUTHER M. BORDEN ET AL. Mr. Chief Justice TANEY delivered the opinion of the court.

															This case has been sent here under a certificate of division
from the Circuit Court for the District of Rhode Island. It
appears, on the face of the record, that the division was merely
formal, and that the whole case has been transferred to this court,
and a multitude of points (twenty-nine in number) presented for its
decision. We have repeatedly decided that this mode of proceeding
is not warranted by the act of Congress, authorizing the justices
of a Circuit Court to certify to the Supreme Court a question of
law which arose at the trial, and upon which they differed in
opinion. And many cases in which, like the present one, the whole
case was certified, have been dismissed for want of jurisdiction.
The same disposition must be made of this. The material points,
however, have been decided in the case of Martin Luther against the
same defendants, in which the opinion of this court has been just
delivered, and which was regularly brought up by writ of error upon
the judgment of the Circuit Court. The case before us depends
mainly upon the same principles, and, indeed, grew out of the same
transaction, and the parties will understand the Page 48 U. S. 48 judgment of this court upon all the material points certified,
from the opinion it has already given in the case referred to.

															This case is removed to the Circuit Court.

															* Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice
McKinley were absent on account of ill health when this case was
argued.

															Mr. Justice WOODBURY, dissenting.

															The writ in this case charges the defendants with breaking and
entering the plaintiff's dwelling house, on the 29th of June, 1842,
and doing much damage.

															The plea in justification alleges that, on June 24th, 1842, an
assembly in arms had taken place in Rhode Island to overawe and
make war upon the State. And therefore, in order to protect its
government, the legislature, on the 25th of that month, passed an
act declaring the whole State to be under martial law. That the
plaintiff was assisting in traitorous designs, and had been in arms
to sustain them, and the defendants were ordered by J. Child, an
officer in the militia, to arrest the plaintiff, and, supposing him
within the house named in the writ, to break and enter it for the
purpose of fulfilling that order, and, in doing this, they caused
as little damage as possible.

															The replication denied all the plea, and averred that the
defendants did the acts complained of in their own wrong, and
without the cause alleged.

															To repel the defense, and in vindication of the conduct of the
plaintiff, much evidence was offered, the substance of which will
be next stated, with some leading facts proved on the other side in
connection with it

															The people of Rhode Island had continued to live under their
charter of 1663 from Charles the Second till 1841, with some
changes in the right of suffrage by acts of the legislature, but
without any new constitution, and still leaving in force a
requirement of a freehold qualification for voting. By the growth
of the State in commerce and manufactures, this requirement had for
some time been obnoxious, as it excluded so many adult males of
personal worth and possessed of intelligence and wealth, though not
of land, and as it made the ancient apportionment of the number of
representatives, founded on real estate, very disproportionate to
the present population and personal property in different portions
and towns of the State.

															This led to several applications to the legislature for a change
in these matters, or for provision to have a convention of the
people called to correct it by a new constitution. These all
failing, voluntary societies were formed in 1841, Page 48 U. S. 49 and a convention called by them of delegates, selected by the
made adults who had resided one year in the State, with a view
chiefly to correct the right of suffrage and the present unequal
apportionment of representatives. This, though done without the
formalities or recommendation of any statute of the State, or any
provision in the charter, was done peacefully, and with as much
care and form as were practicable without such a statute or charter
provision. A constitution was formed by those delegates, a vote
taken on its ratification, and an adoption of it made, as its
friends supposed, and offered to prove, by a decided majority, both
of the freehold voters and of the male adults in the State.

															Political officers for the executive and legislative departments
were then chosen under it by those in its favor, which officers
assembled on the 3d of May, 1842, and took their respective oaths
of office and appointed several persons to situations under the
constitution, and among them the existing judges of the superior
court.

															After transacting some other business the next day, but the old
officers in the State under the charter not acknowledging their
authority nor surrendering to them the public records and public
property, they adjourned till July after, and never convened again,
nor performed any further official duties. Nor did they institute
actions for the possession of the public records and public
property, but T. Dorr, the person elected governor, at the head of
an armed force, on the 25th of June, 1842, in his supposed official
capacity, made some attempt to get possession of the public
arsenal, but, failing in it, he dismissed the military assembled,
by a written order, on the 27th of June, and left the State. He
states as a reason for this "that a majority of the friends of the
people's constitution disapprove of any further forcible measures
for its support."

															In the meantime, the officers under the old charter, having, as
before suggested, continued in possession of the public records and
property, and in the discharge of their respective functions,
passed an act, on the 24th of June, placing the State under martial
law. A proclamation was then issued by the governor warning the
people not to support the new constitution or its officers, and
another act was passed making it penal to officiate under it. An
application was made to the President of the United States for
assistance in quelling the disturbances apprehended, but was
answered by him on the 29th of May, 1842, not complying with the
request, though with expressions of willingness to do it should it,
in his opinion, afterwards become necessary.

															Nothing further seems to have been done by him in the Page 48 U. S. 50 premises except that, on the 29th of June, the day of the
trespass complained of in this action, a proclamation was prepared
under his direction, but not issued, denouncing such of the
supporters of the new constitution as were in arms to be
"insurgents," and commanding them to disperse.

															It was next shown by the respondents that Dorr, the
governor-elect under the new constitution, was, in August, 1842,
indicted for treason against the State, and, being apprehended in
1844, was then tried and convicted.

															If further appears that the court, at the trial of the present
cause, ruled out the evidence offered by the plaintiff in support
of his conduct and admitted that which went to justify the
defendants, and decided that the old charter, and not the new
constitution, was in force at the time the act passed declaring
martial law, and that this law was valid, and, as pleaded,
justified the defendants in their behaviour.

															Without entering here at more length into details concerning the
unhappy controversy which agitated Rhode Island in 1842, it is
manifest that it grew out of a political difficulty among her own
people in respect to the formation of a new constitution. It is not
probable that the active leaders, and much less the masses who were
engaged on either side, had any intention to commit crimes or
oppress illegally their fellow citizens. Such, says Grotius, is
usually, in civil strife, the true, liberal view to be taken of the
masses. Grotius on War, B. 3, ch. 11, sec. 6. And much more is it
so when, in a free country, they honestly divide on great political
principles, and do not wage a struggle merely for rapine or spoils.
In this instance, each side appears to have sought, by means which
it considered lawful and proper, to sustain the cause in which it
had embarked, till peaceful discussions and peaceful action
unexpectedly ripened into a resort to arms and brother became
arrayed against brother in civil strife. Fortunately, no lives were
destroyed, and little property injured. But the bitterness
consequent on such differences did not pass off without some highly
penal legislation and the extraordinary measure of the
establishment of martial law over the whole State. Under these
circumstances, it is too much to expect, even at this late day,
that a decision on any branch of this controversy can be received
without some of the leaven of former political excitement and
prejudice, on the one side or the other, by those who were engaged
in its stirring scenes. Public duty, however, seems to require each
member of this court to speak freely his own convictions on the
different questions which it may be competent for us to decide, and
when one of those members, like myself, has the misfortune to
differ in any respect from the rest, to explain Page 48 U. S. 51 with frankness, and undeterred by consequences, the grounds of
that difference.

															This difference, however, between me and my brethren extends
only to the points in issue concerning martial law. But that being
a very important one in a free government, and this controversy
having arisen in the circuit to which I belong, and where the
deepest interest is felt in its decision, I hope to be excused for
considering that point fully and for assigning also some additional
and different reasons why I concur with the rest of the court in
the opinion, that the other leading question, the validity of the
old charter at that time, is not within our constitutional
jurisdiction. These two inquiries seem to cover the whole debatable
ground, and I refrain to give an opinion on the last question,
which is merely political, under a conviction that, as a judge, I
possess no right to do it, and not to avoid or conceal any views
entertained by me concerning them, as mine, before sitting on this
bench and as a citizen, were frequently and publicly avowed.

															It must be very obvious on a little reflection that the last is
a mere political question. Indeed, large portions of the points
subordinate to it on this record, which have been so ably discussed
at the bar, are of a like character, rather than being judicial in
their nature and cognizance. For they extend to the power of the
people, independent of the legislature, to make constitutions, to
the right of suffrage among different classes of them in doing
this, to the authority of naked majorities, and other kindred
questions of such high political interest as during a few years to
have agitated much of the Union, no less than Rhode Island.

															But, fortunately for our freedom from political excitements in
judicial duties, this court can never with propriety be called on
officially to be the umpire in questions merely political. The
adjustment of these questions belongs to the people and their
political representatives, either in the State or general
government. These questions relate to matters not to be settled on
strict legal principles. They are adjusted rather by inclination,
or prejudice or compromise, often. Some of them succeed or are
defeated even by public policy alone, or mere naked power, rather
than intrinsic right. There being so different tastes as well as
opinions in politics, and especially in forming constitutions, some
people prefer foreign models, some domestic, and some neither,
while judges, on the contrary, for their guides, have fixed
constitutions and laws, given to them by others and not provided by
themselves. And those others are no more Locke than an Abbe Sieyes,
but the people. Judges, for constitutions, must go to the people of
their own country, and must Page 48 U. S. 52 merely enforce such as the people themselves, whose judicial
servants they are, have been pleased to put into operation.

															Another evil, alarming and little foreseen, involved in
regarding these as questions for the final arbitrament of judges
would be that, in such an event, all political privileges and
rights would, in a dispute among the people, depend on our decision
finally. We would possess the power to decide against, as well as
for, them, and, under a prejudiced or arbitrary judiciary, the
public liberties and popular privileges might thus be much
perverted, if not entirely prostrated. But, allowing the people to
make constitutions and unmake them, allowing their representatives
to make laws and unmake them, and without our interference as to
their principles or policy in doing it, yet, when constitutions and
laws are made and put in force by others, then the courts, as
empowered by the State or the Union, commence their functions and
may decide on the rights which conflicting parties can legally set
up under them, rather than about their formation itself. Our power
begins after theirs ends. Constitutions and laws precede the
judiciary, and we act only under and after them, and as to disputed
rights beneath them, rather than disputed points in making them. We
speak what is the law, jus dicere, we speak or construe
what is the constitution, after both are made, but we make, or
revise, or control neither. The disputed rights beneath
constitutions already made are to be governed by precedents, by
sound legal principles, by positive legislation, clear contracts,
moral duties, and fixed rules; they are per se questions
of law, and are well suited to the education and habits of the
bench. But the other disputed points in making constitutions,
depending often, as before shown, on policy, inclination, popular
resolves and popular will and arising not in respect to private
rights, not what is meum and tuum, but in
relation to politics, they belong to politics, and they are settled
by political tribunals, and are too dear to a people bred in the
school of Sydney and Russel for them ever to intrust their final
decision, when disputed, to a class of men who are so far removed
from them as the judiciary, a class also who might decide them
erroneously, as well as right, and if in the former way, the
consequences might not be able to be averted except by a
revolution, while a wrong decision by a political forum can often
be peacefully corrected by new elections or instructions in a
single month; and if the people, in the distribution of powers
under the constitution, should ever think of making judges supreme
arbiters in political controversies when not selected by nor,
frequently, amenable to them nor at liberty to follow such various
considerations in their judgments as Page 48 U. S. 53 belong to mere political questions, they will dethrone
themselves and lose one of their own invaluable birthrights;
building up in this way -- slowly, but surely -- a new sovereign
power in the republic, in most respects irresponsible and
unchangeable for life, and one more dangerous, in theory at least,
than the worst elective oligarchy in the worst of times. Again,
instead of controlling the people in political affairs, the
judiciary in our system was designed rather to control individuals,
on the one hand, when encroaching, or to defend them, on the other,
under the Constitution and the laws, when they are encroached upon.
And if the judiciary at times seems to fill the important station
of a check in the government, it is rather a check on the
legislature, who may attempt to pass laws contrary to the
Constitution, or on the executive, who may violate both the laws
and Constitution, than on the people themselves in their primary
capacity as makers and amenders of constitutions.

															Hence, the judiciary power is not regarded by elementary writers
on politics and jurisprudence as a power coordinate or commensurate
with that of the people themselves, but rather coordinate with that
of the legislature. Kendall v. United
States , 12 Peters 526. Hence, too, the following
view was urged when the adoption of the Constitution was under
consideration:

															"It is the more rational to suppose that the courts were
designed to be an intermediate body between the people and the
legislature in order, among other things, to keep the latter within the limits assigned to their authority."

															Federalist, No. 77, by Hamilton.

															"Nor does the conclusion by any means suppose a superiority of
the judicial to the legislative power. It only supposes that the
power of the people is superior to both,"

															"&c., &c."

															But how would this superiority be as to this court if we could
decide finally on all the political claims and acts of the people
and overrule or sustain them according only to our own views? So
the judiciary, by its mode of appointment, long duration in office,
and slight accountability, is rather fitted to check legislative
power than political, and enforce what the political authorities
have manifestly ordained. These last authorities are, by their
pursuits and interests, better suited to make rules, we to expound
and enforce them after made.

															The subordinate questions which also arise here in connection
with the others, such as whether all shall vote in forming or
amending those constitutions who are capable and accustomed to
transact business in social and civil life, and none others, and
whether, in great exigencies of oppression by the legislature
itself and refusal by it to give relief, the people may not take
the subject into their own hands, independent of the
legislature, Page 48 U. S. 54 and whether a simple plurality in number on such an occasion, or
a majority of all, or a larger proportion, like two-thirds or
three-fourths, shall be deemed necessary and proper for a change,
and whether, if peacefully completed, violence can afterwards be
legally used against them by the old government, if that is still
in possession of the public property and public records, whether
what are published and acted on as the laws and constitution of a
State were made by persons duly chosen or not, were enrolled and
read according to certain parliamentary rules or not, were in truth
voted for by a majority or two thirds -- these and several other
questions equally debatable and difficult in their solution are in
some aspects a shade less political. But they are still political.
They are too near all the great fundamental principles in
government, and are too momentous ever to have been intrusted by
our jealous fathers to a body of men like judges, holding office
for life, independent in salary, and not elected by the people
themselves. Non nostrum tantas componere lites. Where, then, does
our power, as a general rule, begin? In what place runs the true
boundary line? It is here. Let the political authorities admit as
valid a constitution made with or without previous provision by the
legislature, as in the last situation Tennessee and Michigan were
introduced into the Union. See Federalist, No. 40, and 2
Ell.Deb. 57; 13 Regis by Y. 95, 1164, and Cong. Globe, App., 78,
137, 147. Let the collected will of the people as to changes be so
strong, and so strongly evinced, as to call down no bills of pains
and penalties to resist it and no arming of the militia or
successful appeals to the general government to suppress it by
force, as none were in some cases abroad as well as in America, and
one recently in New York, which might be cited beside those above. See A.D. 1846, and opinion of their judges. In short, let
a constitution or law, however originating, be clearly acknowledged
by the existing political tribunals, and be put and kept in
successful operation. The judiciary can then act in conformity to
and under them. Kemper v. Hawkins, 1 Virg.Cas., 74, App.
Then, when the claims of individuals come in conflict under them,
it is the true province of the judiciary to decide what they
rightfully are under such constitutions and laws, rather than to
decide whether those constitutions and laws themselves have been
rightfully or wisely made.

															Again, the Constitution of the United States enumerates
specially the cases over which its judiciary is to have cognizance,
but nowhere includes controversies between the people of a State as
to the formation or change of their constitutions. Page 48 U. S. 55 See Article 3, sec. 2. Though at first the federal
judiciary was empowered to entertain jurisdiction where a State was
a party in a suit, it has since been deprived even of that power by
a jealous country except in cases of disputed boundary. Article 3,
sec. 2; Amendment 11th; Massachusetts v. Rhode
Island , 12 Peters 755.

															If it be asked what redress have the people, if wronged in these
matters, unless by resorting to the judiciary, the answer is, they
have the same as in all other political matters. In those, they go
to the ballot boxes, to the legislature or executive, for the
redress of such grievances as are within the jurisdiction of each,
and, for such as are not, to conventions and amendments of
constitutions. And when the former fail, and these last are
forbidden by statutes, all that is left in extreme cases, where the
suffering is intolerable and the prospect is good of relief by
action of the people without the forms of law, is to do as did
Hampden and Washington, and venture action without those forms, and
abide the consequences. Should strong majorities favor the change,
it generally is completed without much violence. In most states,
where representation is not unequal, or the right of suffrage is
not greatly restricted, the popular will can be felt and triumph
through the popular vote and the delegates of the people in the
legislature, and will thus lead soon, and peacefully, to
legislative measures ending in reform, pursuant to legislative
countenance and without the necessity of any stronger collateral
course. But when the representation is of a character which defeats
this, the action of the people, even then, if by large majorities,
will seldom be prosecuted with harsh pains and penalties, or
resisted with arms.

															Changes, thus demanded and thus supported, will usually be
allowed to go into peaceful consummation. But when not so allowed,
or when they are attempted by small or doubtful majorities, it must
be conceded that it will be at their peril, as they will usually be
resisted by those in power by means of prosecutions, and sometimes
by violence, and, unless crowned by success, and thus subsequently
ratified, they will often be punished as rebellious or
treasonable.

															If the majorities, however, in favor of changes happen to be
large, and still those in power refuse to yield to them, as in the
English revolution of 1688, or in our own of 1776, the popular
movement will generally succeed, though it be only by a union of
physical with moral strength; and when triumphant, it will, as on
those occasions, confirm by subsequent forms of law what may have
begun without them.

															There are several other questions, also, which may arise under
our form of government that are not properly of judicial Page 48 U. S. 56 cognizance. They originate in political matters, extend to
political objects, and do not involve any pecuniary claims or
consequences between individuals so as to become grounds for
judicial inquiry. These questions are decided sometimes by
legislatures, or heads of departments, or by public political
bodies, and sometimes by officers, executive or military, so as not
to be revisable here. See Decatur v.
Paulding , 14 Peters 497.

															Looking to all these considerations, it appears to me that we
cannot rightfully settle those grave political questions which, in
this case, have been discussed in connection with the new
constitution; and, as judges, our duty is to take for a guide the
decision made on them by the proper political powers, and, whether
right or wrong according to our private opinions, enforce it till
duly altered. But it is not necessary to rest this conclusion on
reasoning alone. Several precedents in this court, as well as in
England, show the propriety of it.

															In Foster et al. v.
Neilson , 2 Peters 309, where the title to the
property depended on the question whether the land was within a
cession by treaty to the United States, it was held that, after our
government, legislative and executive, had claimed jurisdiction
over it, the courts must consider that the question was a political
one the decision of which, having been made in this manner, they
must conform to. See also 6 Peters 31 U. S. 711 and Garcia v.
Lee , 12 Peters 520; 38 U. S. 13 Peters 419. In The Cherokee Nation v. The
State of Georgia , 5 Peters 20, the court expressed
strong doubts whether it was not a political question, not proper
for their decision, to protect the Cherokee Indians in their
possessions, and to restrain the State of Georgia and construe and
enforce its treaty obligations. Justice Johnson seemed decisive
that it was.

															In Massachusetts v. Rhode
Island , 12 Peters 736, 37 U. S. 738 ,
it was held that the boundaries between States was a political
question per se, and should be adjusted by political
tribunals unless agreed to be settled as a judicial question, and
in the Constitution so provided for. Garcia v. Lee, ib., 37 U. S.
520 .

															In Barclay v. Russel, 3 Ves. 424, in respect to
confiscations, it was held to be a political question, and a
subject of treaty, and not of municipal jurisdiction. P. 434.

															In Nabob of the Carnatic v. The East India Company, 2
Ves. jun. 56, the court decided that political treaties between a
foreign state and subjects of Great Britain, conducting as a state
under acts of Parliament, are not a matter of municipal
jurisdiction, and to be examined and enforced by the judiciary.

															Another class of political questions, coming still nearer this,
is which must be regarded as the rightful government abroad Page 48 U. S. 57 between two contending parties? That is never settled by the
judiciary, but is left to the decision of the general government. The Cherokee
Case , 5 Peters 50; and Williams v. Suffolk Ins.
Co. , 13 Peters 419; 6 U. S. 2 Cranch
241; Rose v.
Himely , 4 Cranch 268; United
States v. Palmer , 3 Wheat. 634, and Gelston v. Hoyt,
ib. , 246; The Divina
Pastora , 4 Wheat. 64; 14 Ves. 353; 11 Ves. 583; 1
Edw. Ad. 1.

															The doctrines laid down in Palmer's case are as
directly applicable to this in the event of two contending parties
in arms in a domestic war as in a foreign. If one is recognized by
the executive or legislature of the Union as the de facto government, the judiciary can only conform to that political
decision. See also The Santissima
Trinidad , 7 Wheat. 336, 20 U. S. 337 ;
and, further, that if our general government recognizes either as
exclusively in power, the judiciary must sustain its belligerent
rights, see 3 Sumner 270. In the case of the City of
Berne v. The Bank of England, 9 Ves. 348, it was held that "a
judicial court cannot take notice of a foreign government not
acknowledged by the government of the country in which the court
sits." The same rule has been applied by this court in case of a
contest as to which is the true constitution between two, or which
possesses the true legislative power in one, of our own States,
those citizens acting under the new constitution, which is objected
to as irregularly made, or those under the old territorial
government therein. Semb. 46 U. S. v.
Jones et al., 5 Howard 374. In that case, we held that no writ
of error lies to us to revise a decision of a State court where the
only question is the validity of the statute on account of the
political questions and objections just named. It was held also in Williams v. Suffolk Ins. Co., 3 Sumner 270, that, where a
claim exists by two governments over a country, the courts of each
are bound to consider the claims of their own government as right,
being settled for the time being by the proper political tribunal.
And hence no right exists in their judicial authorities to revise
that decision. Pp. 273, 275; S.C., 38 U. S. 13 Peters 419.

															" Omnia rite acta. It might otherwise happen that the
extraordinary spectacle might be presented of the courts of a
country disavowing and annulling the acts of its own government in
matters of state and political diplomacy."

															This is no new distinction in judicial practice, any more than
in judicial adjudications. The pure mind of Sir Matthew Hale, after
much hesitation, at last consented to preside on the bench in
administering the laws between private parties under a government
established and recognized by other governments, and in full
possession de facto of the records and power of the
kingdom, but without feeling satisfied on inquiring, as a Page 48 U. S. 58 judicial question, into its legal rights. Cromwell had "gotten
possession of the government," and expressed a willingness "to rule
according to the laws of the land" -- by "red gowns rather than red
coats," as he is reported to have quaintly remarked. And this Hale
thought justified him in acting as a judge. Hale's Hist. of the
Com.Law, p. 14, Preface. For a like reason, though the power of
Cromwell was soon after overturned, and Charles and Second
restored, the judicial decisions under the former remained
unmolested on this account, and the judiciary went on as before,
still looking only to the de facto government for the time
being. Grotius virtually holds the like doctrine. B 1, ch. 4, sec.
20, and B. 2, ch. 13, sec. 11. Such was the case likewise over most
of this country after the Declaration of Independence, till the
acknowledgment of it by England in 1783. 3 Story's Com. on Const.,
§§ 214, 215. And such is believed to have been the course in France
under all her dynasties and regimes during the last
half-century.

															These conclusions are strengthened by the circumstance that the
Supreme Court of Rhode Island, organized since under the second new
constitution, has adopted this principle. In numerous instances,
this court has considered itself bound to follow the decision of
the State tribunals on their own constitutions and laws. See cases in Smith v. Babcock, 2 Woodb. &
Min.; 46 U. S. 5 Howard 139; Elmendorf v.
Taylor , 10 Wheat. 159; Bank of
United States v. Daniel et al. , 12 Peters 32. This,
of course, relates to their validity when not overruling any
defence set up under the authority of the United States. None such
was set up in the trial of Dorr, and yet, after full hearing, the
Supreme Court of Rhode Island decided that the old charter and its
legislature were the political powers which they were bound to
respect, and the only ones legally in force at the time of this
transaction, and accordingly convicted and punished the governor
chosen under the new constitution for treason, as being technically
committed, however pure may have been his political designs or
private character. Report of Dorr's Trial, 1844, pp. 130, 131. The
reasons for this uniform compliance by us with State decisions made
before ours on their own laws and constitutions, and not appealed
from, are given by Chief Justice Marshall with much clearness. It
is only necessary to refer to his language in Elmendorf v.
Taylor , 10 Wheat. 159.

															Starting, then, as we are forced to here, with several political
questions arising on this record, and those settled by political
tribunals in the State and general government, and whose decisions
on them we possess no constitutional authority to revise, all
which, apparently, is left for us to decide is the Page 48 U. S. 59 other point, whether the statute establishing martial law over
the whole State, and under which the acts done by the defendants
are sought to be justified, can be deemed constitutional.

															To decide a point like this last is clearly within judicial
cognizance, it being a matter of private personal authority and
right, set up by the defendants under constitutions and laws, and
not of political power, to act in relation to the making of the
former.

															Firstly, then, in order to judge properly whether this act of
Assembly was constitutional, let us see what was the kind and
character of the law the Assembly intended, in this instance, to
establish, and under which the respondents profess to have
acted.

															The Assembly says:

															"The State of Rhode Island and Providence Plantations is hereby
placed under martial law, and the same is hereby declared to be in
full force until otherwise ordered by the General Assembly, or
suspended by a proclamation of his Excellency the Governor of the
State."

															Now the words "martial law," as here used, cannot be construed
in any other than their legal sense, long known and recognized in
legal precedents as well as political history. See it in 1
Hallam's Const. Hist., ch. 5, p. 258; 1 MacArthur on
Courts-Martial, 33. The legislature evidently meant to be
understood in that sense by using words of such well settled
construction, without any limit or qualification, and covering the
whole State with its influence under a supposed exigency and
justification for such an unusual course. I do not understand this
to be directly combated in the opinion just delivered by the Chief
Justice. That they could mean no other than the ancient martial law
often used before the Petition of Right, and sometimes since, is
further manifest from the fact that they not only declared
"martial" law to exist over the State, but put their militia into
the field to help, by means of them and such a law, to suppress the
action of those denominated "insurgents," and this without any
subordination to the civil power or any efforts in conjunction and
in cooperation with it. The defendants do not aver the existence of
any civil precept which they were aiding civil officers to execute,
but set up merely military orders under martial law.
Notwithstanding this, however, some attempts have been made at
another construction of this act, somewhat less offensive, by
considering it a mere equivalent to the suspension of the habeas
corpus, and another still to regard it as referring only to the
military code used in the armies of the United States and England.
But when the legislature enacted Page 48 U. S. 60 such a system "as martial law," what right have we to say that
they intended to establish something else, and something entirely
different? A suspension, for instance, of the writ of habeas
corpus, a thing not only unnamed by them but wholly unlike and far
short, in every view, of what they both said and did? Because they
not only said, eo nomine, that they established "martial
law," but they put in operation its principles -- principles not
relating merely to imprisonment, like the suspension of the habeas
corpus, but forms of arrest without warrant, breaking into houses
where no offenders were found, and acting exclusively under
military orders, rather than civil precepts.

															Had the legislature meant merely to suspend the writ of habeas
corpus, they, of course, would have said that, and nothing more. A
brief examination will show also that they did not thus intend to
put in force merely some modern military code, such as the Articles
of War made by Congress, or those under the Mutiny Act in England.
They do not mention either, and what is conclusive on this, neither
would cover or protect them in applying the provisions of those
laws to a person situated like the plaintiff. For nothing is better
settled than that military law applies only to the military, but
"martial law" is made here to apply to all. Hough on Courts-Martial
384, note; 27 State Trials 625, in Theobald Wolfe Tone's case.

															The present laws for the government of the military in England
also do not exist in the vague and general form of martial law, but
are explicitly restricted to the military, and are allowed as to
them only to prevent desertion and mutiny and to preserve good
discipline. 1 Bl.Com. 412; 1 MacArthur on Courts-Martial, p. 20.
So, in this country, legislation as to the military is usually
confined to the general government, where the great powers of war
and peace reside. And hence, under those powers, Congress, by the
act of 1806 2 Stat. at Large 359, has created the Articles of War,
"by which the armies of the United States shall be governed," and
the militia when in actual service, and only they. To show this is
not the law by which other than those armies shall be governed, it
has been found necessary, in order to include merely the drivers or
artificers "in the service," and the militia after mustered into
it, to have special statutory sections. See articles 96
and 97. Till mustered together, even the militia are not subject to
martial law. 18 U. S. 5 Wheat.
20; 3 Stor.Com.Const. § 120. And whenever an attempt is made to
embrace others in its operation, not belonging to the military or
militia, nor having ever agreed to the rules of the service, well
may they say, we have not entered into such bonds, in haec
vinculae non veni. Page 48 U. S. 61 2 Hen.Bl. 99; 1 Bl.Com. 408, 414; 1 D. & E. 493, 550, 784;
27 State Trials, 625. Well may they exclaim, as in Magna Charta,
that "no freeman shall be taken or imprisoned but by the lawful
judgment of his equals, or by the law of the land." There is no
pretence that this plaintiff, the person attempted to be arrested
by the violence exercised here, was a soldier or militia-man then
mustered into the service of the United States, or of Rhode Island,
or subject by its laws to be so employed, or on that account sought
to be seized. He could not, therefore, in this view of the case, be
arrested under this limited and different kind of military law, nor
houses be broken into for that purpose and by that authority.

															So it is a settled principle even in England that, "under the
British constitution, the military law does in no respect either
supersede or interfere with the civil law of the realm," and that
"the former is in general subordinate to the latter" Tytler on
Military Law 365, while "martial law" overrides them all. The
Articles of War likewise are not only authorized by permanent,
rather than temporary, legislation, but they are prepared by or
under it with punishments and rules before promulgated and known
and assented to by those few who are subject to them as operating
under established legal principles and the customary military law
of modern times. 1 East, 306, 313; Pain
v. Willard , 12 Wheat. 539, and also 19; 1
MacArthur, Courts-Martial 13 and 215. They are also definite in the
extent of authority under them as to subject matter as well as
persons, as they regulate and restrain within more safe limits the
jurisdiction to be used, and recognize and respect the civil rights
of those not subject to it, and even of those who are in all other
matters than what are military and placed under military
cognizance. 2 Stephen on Laws of Eng. 602; 9 Bac.Abr., Soldier, F; Tytler on Military Law, 119. And as a further
proof how rigidly the civil power requires the military to confine
even the modified code martial to the military, and to what are
strictly military matters, it cannot, without liability to a
private suit in the judicial tribunals, be exercised on a soldier
himself for a cause not military, or over which the officer had no
right to order him -- as, for example, to attend school
instruction, or pay an assessment towards it out of his wages. 4
Taunt. 67; 4 Maule & Selw. 400; 2 Hen.Bl. 103, 537; 7 U. S. 3 Cranch
337; 7 Johns. 96.

															The prosecution of Governor Wall in England for causing, when he
was in military command, a soldier to be seized and flogged so that
he died, for an imputed offence not clearly military and by a
pretended court-martial without a full trial, and executing Wall
for the offence after a lapse of twenty years, Page 48 U. S. 62 illustrate how jealously the exercise of any martial power is
watched in England, though in the army itself and on its own
members. See Annual Register for 1802, p. 569; 28 State
Trials, p. 52, Howell's ed.

															How different in its essence and forms, as well as subjects,
from the Articles of War was the "martial law" established here
over the whole people of Rhode Island may be seen by adverting to
its character for a moment, as described in judicial as well as
political history. It exposed the whole population not only to be
seized without warrant or oath, and their houses broken open and
rifled, and this where the municipal law and its officers and
courts remained undisturbed and able to punish all offences, but to
send prisoners thus summarily arrested in a civil strife to all the
harsh pains and penalties of courts-martial or extraordinary
commissions, and for all kinds of supposed offences. By it, every
citizen, instead of reposing under the shield of known and fixed
laws as to his liberty, property, and life, exists with a rope
round his neck, subject to be hung up by a military despot at the
next lamp-post under the sentence of some drum-head court-martial. See Simmons' Pract. of Courts-Martial 40. See such a trial in Hough on Courts-Martial, 383, where the victim on
the spot was "blown away by a gun," "neither time, place, nor
persons considered." As an illustration how the passage of such a
law may be abused, Queen Mary put it in force in 1558 by
proclamation merely, and declared,

															"that whosoever had in his possession any heretical,
treasonable, or seditious books, and did not presently burn them,
without reading them or showing them to any other person, should be
esteemed a rebel, and without any further delay be executed by the
martial law."

															Tyler on Military Law, p. 50, ch. 1, sec 1.

															For convincing reasons like these, in every country which makes
any claim to political or civil liberty, "martial law," as here
attempted and as once practised in England against her own people,
has been expressly forbidden there for near two centuries, as well
as by the principles of every other free constitutional government.
1 Hallam's Const. Hist. 420. And it would be not a little
extraordinary if the spirit of our institutions, both State and
national, was not much stronger than in England against the
unlimited exercise of martial law over a whole people, whether
attempted by any chief magistrate or even by a legislature.

															It is true, and fortunate it is that true, the consequent actual
evil in this instance from this declaration of martial law was
smaller than might have been naturally anticipated. But we must be
thankful for this not to the harmless character of the law itself,
but rather to an inability to arrest many, or from the Page 48 U. S. 63 small opposition in arms, and its short continuance, or from the
deep jealousy and rooted dislike generally in this country to any
approach to the reign of a mere military despotism. Unfortunately,
the legislature had probably heard of this measure in history, and
even at our Revolution, as used by some of the British generals
against those considered rebels, and, in the confusion and hurry of
the crisis, seem to have rushed into it suddenly, and, I fear,
without a due regard to private rights, or their own constitutional
powers or the supervisory authority of the general government over
wars and rebellions.

															Having ascertained the kind and character of the martial law
established by this act of Assembly in Rhode Island, we ask next
how, under the general principles of American jurisprudence in
modern times, such a law can properly exist or be judicially
upheld. A brief retrospect of the gradual, but decisive,
repudiation of it in England will exhibit many of the reasons why
such a law cannot be rightfully tolerated anywhere in this
country.

															One object of Parliamentary inquiry, as early as 1620, was to
check the abuse of martial law by the king which had prevailed
before. Tytler on Military Law 502. The Petition of Right, in the
first year of Charles the First, reprobated all such arbitrary
proceedings in the just terms and in the terse language of that
great patriot as well as judge, Sir Edward Coke, and prayed they
might be stopped and never repeated. To this the king wisely
replied, " Soit droit fait come est desire, Let right be
done as desired." Petition of Right, in Statutes at Large, 1
Charles 1. Putting it in force by the king alone was not only
restrained by the Petition of Right early in the seventeenth
century, but virtually denied as lawful by the Declaration of
Rights in 1688. Tytler on Military Law 307. Hallam, therefore, in
his Constitutional History, p. 420, declares that its use by

															"the commissions to try military offenders by martial law was a
procedure necessary within certain limits to the discipline of an
army, but unwarranted by the constitution of this country."

															Indeed, a distinguished English judge has since said that
"martial law," as of old, now "does not exist in England at all,"
"was contrary to the constitution, and has been for a century
totally exploded." Grant v. Gould, 2 Hen.Bl. 69; 1 Hale,
P.C. 346; Hale, Com.Law ch. 2, p. 36; 1 MacArthur 55. This is broad
enough, and is correct as to the community generally in both war
and peace. No question can exist as to the correctness of this
doctrine in time of peace. The Mutiny Act itself, for the
government of the army, in 36 Geo. 3, ch. 24, sec. 1, begins by
reciting,

															"Whereas, no man can be forejudged of life or limb, or
subjected Page 48 U. S. 64 in time of peace to any punishment within the realm by martial
law."

															Simmons' Pract. of Courts-Martial 38.

															Lord Coke says, in 3 Inst. 52:

															"If a lieutenant, or other that hath commission of martial
authority in time of peace hang or otherwise execute any man by
color of martial law, this is murder."

															"Thom. Count de Lancaster, being taken in open
insurrection, was by judgment of martial law put to death,"
and this, though during an insurrection, was adjudged to be murder
because done in time of peace, and while the courts of law were
open. 1 Hallam's Const.Hist. 260. The very first Mutiny Act,
therefore, under William the Third, was cautious to exonerate all
subjects except the military from any punishment by martial law.
Tytler on Military Law 19, note. In this manner it has become
gradually established in England that, in peace, the occurrence of
civil strife does not justify individuals or the military or the
king in using martial law over the people.

															It appears also that nobody has dared to exercise it in war or
peace on the community at large in England for the last century and
a half, unless specially enacted by Parliament in some great
exigency and under various restrictions, and then under the theory
not that it is consistent with bills of rights and constitutions,
but that Parliament is omnipotent, and for sufficient cause may
override and trample on them all temporarily.

															After the civil authorities have become prostrated in particular
places, and the din of arms has reached the most advanced stages of
intestine commotions, a Parliament which alone furnishes the means
of war -- a Parliament unlimited in its powers -- has, in
extremis, on two or three occasions, ventured on martial law
beyond the military, but it has usually confined it to the
particular places thus situated, limited it to the continuance of
such resistance, and embraced in its scope only those actually in
arms. Thus, the "Insurrection Act" of November, 1796, for Ireland,
passed by the Parliament of England, extended only to let
magistrates put people "out of the king's peace," and subject to
military arrest, under certain circumstances. Even then, though
authorized by Parliament, like the general government here, and not
a State, it is through the means of the civil magistrate, and a
clause of indemnity goes with it against prosecutions in the
"king's ordinary courts of law." Annual Register, p. 173, for A.D.
1798; 1 MacArthur, Courts-Martial, 34. See also the cases
of the invasions by the Pretender in 1715 and 1745, and of the
Irish rebellion in 1798. Tytler on Military Law 48, 49, 369, 370,
App. No. 6, p. 402, the act passed by the Irish Parl.; Simmons' Page 48 U. S. 65 Practice of Courts-Martial, App. 633. When speaking of the
absence of other and sound precedents to justify such martial law
in modern times here, I am aware that something of the kind may
have been attempted in some of the doings of the British Colonial
governors towards this country at the Revolution.

															In the Annual Register for 1775, p. 133, June 12th, it may be
seen that General Gage issued his proclamation pardoning all who
would submit except Samuel Adams and John Hancock, and further
declaring, "that, as a stop was put to the due course of justice, martial law should take place till the laws were restored
to their due efficacy."

															Though the engagements at Lexington and Concord happened on the
19th of April, 1775, though Parliament had, in February previous,
declared the Colonies to be in a state of rebellion, ibid., p. 247, and though thousands of militia had
assembled near Bunker Hill before the 12th of June, no martial law
had been established by Parliament, and not till that day did
General Gage, alone and unconstitutionally, undertake, in the
language of our fathers, to "supersede the course of the common
law, and, instead thereof, to publish and order the use and
exercise of martial law." Ibid., p. 261; Journal of Old
Cong., 147, a declaration on 6th July, 1775, drawn up by J.
Dickenson.

															Another of these outrages was by Lord Dunmore, in Virginia,
November 7th, 1775, not only declaring all the slaves of rebels
free, but "declaring martial law to be enforced throughout this
Colony." Annual Register for 1775, p. 28; 4 American Archives 74.
This was, however, justly denounced by the Virginia Assembly as an
"assumed power which the king himself cannot exercise," as it
"annuls the law of the land and introduces the most execrable of
all systems, martial law." 4 American Archives 87. It was a return
to the unbridled despotism of the Tudors, which, as already shown
one to two hundred years before, had been accustomed, in peace as
well as war, to try not only soldiers under it, but others, and by
courts-martial, rather than civil tribunals, and by no settled laws
instead of the municipal code, and for civil offences no less than
military ones. 2 Hen.Bl. 85; 3 Instit. 52; Stat. at Large, 1
Charles 1; Tytler on Military Law, passim. Having thus seen that "martial law" like this, ranging over a
whole people and State, was not by our fathers considered proper at
all in peace or during civil strife, and that, in the country from
which we derive most of our jurisprudence, the king has long been
forbidden to put it in force in war or peace, and that Parliament
never, in the most extreme cases of rebellion, allows it, except as
being sovereign and unlimited in power, Page 48 U. S. 66 and under peculiar restrictions, the next inquiry is whether the
legislature of Rhode Island could, looking to her peculiar
situation as to a constitution, rightfully establish such a law
under the circumstances existing there in 1842. And, to meet this
question broadly, whether she could do it regarding those
circumstances, first, as constituting peace, and next, as amounting
to war. In examining this, I shall refrain from discussing the
points agitated at the bar, whether the old charter under which it
took place was a wise one for a republic, or whether the acts of
the legislature rendering it so highly penal to resort to peaceful
measures to form or put into operation a new constitution without
their consent, and establishing "martial law" to suppress them,
were characterized by the humanity and the civilization of the
present age towards their own fellow citizens. But I shall merely
inquire first, whether it was within the constitutional power of
that legislature to pass such a law as this during peace, or, in
other words, before any lawful and competent declaration of war,
leaving all questions of mere expediency as belonging to the States
themselves, rather than the judiciary, and being one of the last
persons to treat any of them with disrespect or attempt to rob them
of any legitimate power.

															At the outset, it is to be remembered that, if Parliament now
exercises such a power occasionally, it is only under various
limitations and restrictions, not attended to in this case, and
only because the power of Parliament is, by the English
constitution, considered as unlimited or omnipotent. But here
legislative bodies, no less than the executive and judiciary, are
usually not regarded as omnipotent. They are in this country now
limited in their powers, and placed under strong prohibitions and
checks. 21 U. S. 8 Wheat.
88; 3 Smedes & Marshall 673.

															This court has declared that

															"the legislatures are the creatures of the Constitution. They
owe their existence to the Constitution. They derive their powers
from the Constitution. It is their commission, and therefore all
their acts must be conformable to it or else they will be
void." Vanhorne's Lessee v.
Dorrance, 2 Dall. 308; Vattel, ch. 3, sec. 34. In most
of our legislatures, also, as in Rhode Island in A.D. 1798, by a
fundamental law, there has been incorporated into their
constitutions prohibitions to make searches for papers or persons
without a due warrant, and to try for offenses except by indictment
unless in cases arising in the army or navy or militia
themselves.

															The genius of our liberties holds in abhorrence all irregular
inroads upon the dwelling houses and persons of the citizen, Page 48 U. S. 67 and with a wise jealousy regards them as sacred except when
assailed in the established and allowed forms of municipal law.
Three of the amendments to the Constitution of the United States
were adopted under such influences, to guard against abuses of
power in those modes by the general government, and evidently to
restrict even a modified "martial law" to cases happening among
military men, or the militia when in actual service. For one of
them, amendment fourth, expressly provides that

															"the right of the people to be secured in their persons, houses,
papers, and effects against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized."

															The others are amendments third and fifth. And who could hold
for a moment, when the writ of habeas corpus cannot be suspended by
the legislature itself, either in the general government or most of
the States, without an express constitutional permission, that all
other writs and laws could be suspended, and martial law
substituted for them over the whole State or country, without any
express constitutional license to that effect, in any emergency?
Much more is this last improbable when even the mitigated measure,
the suspension of the writ of habeas corpus, has never yet been
found proper by Congress, and, it is believed, by neither of the
States, since the Federal Constitution was adopted. 3 Story's Com.
on Const., § 1325.

															Again, the act of June 24th, 1842, as an act of legislation by
Rhode Island, was virtually forbidden by the express declaration of
principles made by the Rhode Island Assembly in 1798, and also by
the views expressed through the delegates of their people upon
adopting the Federal Constitution, June 16th, 1790. These may be
seen in 1 Elliott's Deb. 370, declaring, in so many words, "that
every person has a right to be secure from all unreasonable
searches and seizures of his person, his papers, or his property,"
and warrants to search without oath and seizures by general warrant
are "oppressive," and "ought not to be granted."

															But as these views were expressed in connection with the
constitution of the general government, though avowed to be the
principles of her people generally, and as the doings in 1798 were
in the form of a law, and not a constitution, it was subject to
suspension or repeal, and hence it will be necessary to look into
the charter to Rhode Island of 1663, her only State constitution
till 1842, to see if there be any limitation in that to legislation
like this, establishing martial law.

															So far from that charter, royal as it was in origin,
permitting Page 48 U. S. 68 an unlimited authority in the legislature, it will be found
expressly to forbid any laws "contrary and repugnant unto" "the
laws of this our realm of England," and to require them to be, "as
near as may be, agreeable" to those laws. See Document, p.
12.

															This, so far from countenancing the establishment of martial law
in Rhode Island, contrary to the Petition of Right in England and
her Bill of Rights, regulated it by the same restrictions, "as near
as may be." Nor did our Revolution of A.D. 1776 remove that
restraint, so far as respects what was then the body of English
laws. For although Rhode Island chose to retain that charter with
this restriction after the Revolution, and made no new constitution
with other limitations till 1842 or 1843, yet probably "the laws of
England" forbidden to be violated by her legislature must be
considered such as existed when the charter was granted in 1663,
and as continued down to 1776. After that, her control over this
country de jure ceasing, a conformity to any new laws made
would not be required. But retaining the charter as the sole guide
and limit to her legislature until she formed a new constitution,
it seems clear that her legislature had no right, on the 25th of
June, 1842, to put the whole State under martial law by any act of
Parliament in force in England in 1663 or in 1776, because none
such was then in force there, nor by any clause whatever in her
charter, as will soon be shown, nor by any usages in her history,
nor by any principles which belong to constitutional governments or
the security of public liberty.

															To remove all doubt on this subject, the charter does expressly
allow "martial law" in one way and case to be declared, and thus
impliedly forbids it in any other. Expressio unius est exclusio
alterius. But so far from the martial law allowed by it being
by permission of the legislature and over the whole State, it was
to be declared only in war waged against a public enemy, and then
by the "military officer" appointed to command the troops so
engaged, and then not over their whole territory and all persons
and cases, but he was to "use and exercise the law martial in such
cases only as occasion shall necessarily require." P. 15.

															Even this power, thus limited, as before shown, related to the
troops of the State, and those liable to serve among them in an
exigency, and when in arms against an enemy. They did not touch
opponents, over whom they could exercise only the municipal laws if
noncombatants, and only the law of nations and belligerent rights
when in the field, and after war or rebellion is recognized as
existing by the proper authorities. Again, it would be
extraordinary indeed if in England Page 48 U. S. 69 the king himself is restrained by Magna Charta and by the
Petition as well as Declaration of Rights, binding him to these
limits against martial law since the Revolution of 1688 4 Bl.Com.
440; 27 U. S. 2 Peters 656, and yet he could grant a charter which should exonerate
others from the obligations of Magna Charta and the general laws of
the kingdom, or that they could be exonerated under it as to the
power of legislation, and do what is against the whole body of
English laws since the end of the sixteenth century, and what
Parliament itself, in its omnipotence and freedom from
restrictions, has never, in the highest emergencies, thought it
proper to do without numerous limitations, regulations, and
indemnities, as before explained.

															Beside this, it may well be doubted whether, in the nature of
the legislative power in this country, it can be considered as
anywhere rightfully authorized, any more than the executive, to
suspend or abolish the whole securities of person and property at
its pleasure, and whether, since the Petition of Right was granted,
it has not been considered as unwarrantable for any British or
American legislative body, not omnipotent in theory like
Parliament, to establish in a whole country an unlimited reign of
martial law over its whole population, and whether to do this is
not breaking up the foundations of all sound municipal rule, no
less than social order, and restoring the reign of the strongest,
and making mere physical force the test of right.

															All our social usages and political education, as well as our
constitutional checks, are the other way. It would be alarming
enough to sanction here an unlimited power, exercised either by
legislatures, or the executive, or courts, when all our governments
are themselves governments of limitations and checks, and of fixed
and known laws, and the people a race above all others jealous of
encroachments by those in power. And it is far better that those
persons should be without the protection of the ordinary laws of
the land who disregard them in an emergency, and should look to a
grateful country for indemnity and pardon, than to allow,
beforehand, the whole frame of jurisprudence to be overturned, and
every thing placed at the mercy of the bayonet.

															No tribunal or department in our system of governments ever can
be lawfully authorized to dispense with the laws, like some of the
tyrannical Stuarts, or to repeal, or abolish, or suspend the whole
body of them, or, in other words, appoint an unrestrained military
dictator at the head of armed men.

															Whatever stretches of such power may be ventured on in great
crises, they cannot be upheld by the laws, as they prostrate the
laws and ride triumphant over and beyond them, Page 48 U. S. 70 however the Assembly of Rhode Island, under the exigency, may
have hastily supposed that such a measure in this instance was
constitutional. It is but a branch of the omnipotence claimed by
Parliament to pass bills of attainder, belonging to the same
dangerous and arbitrary family with martial law. But even those
have ceased to succeed in England under the lights of the
nineteenth century, and are expressly forbidden by the Federal
Constitution, and neither ought ever to disgrace the records of any
free government. Such laws (and martial law is only still baser and
more intolerable than bills of attainder) Mr. Madison denounces as
"contrary to the first principles of the social compact and to
every principle of sound legislation." Federalist, No. 44.

															In short, then, there was nothing peculiar in the condition of
Rhode Island as to a constitution in 1842, which justified her
legislature in peace, more than the legislature of any other State,
to declare martial law over her whole people; but there was much in
her ancient charter, as well as in the plainest principles of
constitutional liberty, to forbid it. Considering this, then, and
that some cases already cited show that domestic violence is still
to be regarded not as a state of war, giving belligerent rights,
but as conferring only the powers of peace in a State, through its
civil authorities, aided by its militia, till the general
government interferes and recognizes the contest as a war, this
branch of our inquiries as to martial law would end here, upon my
view of the pleadings, because the defendants justify under that
law and because the State legislature alone possessed no
constitutional authority to establish martial law of this kind and
to this extent over her people generally, whether in peace or civil
strife. But some of the members of this court seem to consider the
pleadings broad enough to cover the justification, under some
rights of war, independent of the act of the Assembly, or, as the
opinion just read by the Chief Justice seems to imply, under the
supposed authority of the State, in case of domestic insurrection
like this, to adopt an act of martial law over its whole people, or
any war measure deemed necessary by its legislature for the public
safety.

															It looks certainly like pretty bold doctrine in a constitutional
government that, even in time of legitimate war, the legislature
can properly suspend or abolish all constitutional restrictions, as
martial law does, and lay all the personal and political rights of
the people at their feet. But bolder still is it to justify a claim
to this tremendous power in any State, or in any of its officers,
on the occurrence merely of some domestic violence.

															We have already shown, that in this last event, such a claim Page 48 U. S. 71 is entirely untenable on general principles, or by the old
charter of Rhode Island, and was denounced as unlawful by our
fathers when attempted against them at the Revolution, and has in
England been punished as murder when exercised to kill one, though
taken in open arms in an insurrection. ( See cases, ante. )

															The judgment which the court has pronounced in this case seems
to me also to be rested not on any right of this kind in peace,
but, on the contrary, to uphold the act of martial law only as a
war measure. But the grounds have not been shown to my conviction
for supposing that war and war measures, and the rights of war,
existed legally in Rhode Island when this act passed. And, finally,
it seems to me that the insurrection then existing was not in a
stage of progress which would justify any mere belligerent rights;
but if any, it was such rights in the general government, and not
in the legislature of the State, obtained, too, by mere
implication, and, as to so formidable a measure as this, operating
so loosely and recklessly over all its own citizens.

															It is admitted that no war had duly been declared to exist,
either by Rhode Island or the United States, at the time this war
measure was adopted or when the trespass under it was committed.
Yet, had either wished to exercise any war powers, they would have
been legalized in our political system not by Rhode Island, but the
general government. Constit., Art. 1, sec. 8; 3 Story's Com. on
Const., §§ 215, 217; 1 Bl.Com. by Tucker, App., p. 270.

															It may not be useless to refresh our minds a little on this
subject. The Constitution expressly provides that "the Congress
shall have power to declare war." Art. 1, sec. 8. This is not the
States, nor the President, and much less the legislature of a
State. Nor is it foreign war alone that Congress is to declare, but
"war," -- war of any kind existing legitimately or according to the
law of nations. Because Congress alone, and not the States, is
invested with power to use the great means for all wars, "to raise
and support armies," "to provide and maintain a navy," "to provide
for calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions," and "to provide for
organizing, arming, and disciplining the militia." The largest
powers of taxation, too, were conferred on Congress at the same
time, and in part for this cause, with authority to borrow money on
the credit of the Union and to dispose of the public lands. But the
States, deprived of these means, were at the same time properly
relieved from the duty of carrying on war themselves, civil or
foreign, because they were not required to incur expenses Page 48 U. S. 72 to suppress even "domestic violence," or "insurrections," or
"rebellions." By a provision, sec. 4, art. 3,

															"the United States shall guarantee to every State in this Union
a republican form of government, and shall protect each of them
against invasion, and, on application of the legislature (or of the
executive when the legislature cannot be convened), against
domestic violence."

															This exclusiveness of the war power in Congress in all cases,
domestic or foreign, is confirmed, too, by another authority given
to Congress, not only to organize and discipline the militia, no
less than to have regular armies and navies, but "to provide for
calling forth the militia" "to suppress insurrections." Sec. 8,
art. 1. And lest it might be argued that this power to declare war
and raise troops and navies was not exclusive in the general
government, as is the case with some other grants to it deemed
concurrent, about weights and measures, bankrupt laws, &c. see cases cited in Boston v. Norris, post, 283,
the reasons for this grant as to war, and an express prohibition on
the States as to it, both show the power to be exclusive in
Congress. Thus, the reasons as to the power itself are cogent for
having it exclusive only in one body, in order to prevent the
numerous and sudden hostilities and bloody outbreaks in which the
country might be involved, with their vast expenses, if thirty
States could each declare and wage war under its own impulses. 1
Bl.Com. by Tucker, App., p. 270. And, to remove all doubt on that
point, the Constitution proceeded expressly to provide in another
clause a prohibition on the States, sec. 10, art. 1, that "no State
shall, without the consent of Congress," "keep troops or ships of
war in time of peace," "or engage in war, unless actually invaded,
or in such imminent danger as will not admit of delay."

															This accorded with the sixth and ninth articles of the old
Confederation, which vested in it exclusively the power to declare
war, and took the power of waging it from the States, unless in
case of sudden attacks by Indians or pirates or unless actually
invaded by enemies, or in such imminent danger of it that time
cannot be had to consult Congress. 1 Laws of U.S. 15, 16, Bioren's
ed.

															No concurrent or subordinate power is, therefore, left to the
States on this subject, except by occasional and special consent of
Congress, which is not pretended to have been given to Rhode
Island, or unless "actually invaded" by some enemy, which is not
pretended here, or unless "in such imminent danger as will not
admit of delay," which manifestly refers to danger from a foreign
enemy threatening invasion, or from Indians and pirates. Another
circumstance to prove this, besides Page 48 U. S. 73 the language itself being used in connection with foreign
invasions and the danger of them, and not insurrections, is the
like clauses in the old Confederation being thus restricted. One of
those (article 9th) declares that

															"the United States in Congress assembled shall have the sole
and exclusive right and power of determining on peace and war,
except in the cases mentioned in the sixth article."

															1 Laws of U.S. 16, Bioren's ed. And the sixth article, after
providing against foreign embassies, troops, and vessels of war by
a State, adds:

															"No State shall engage in any war unless such State be actually
invaded by enemies, or shall have received certain advice of a
resolution being formed by some nation of Indians to invade such
State, and the danger is so imminent as not to admit of delay till
the United States in Congress assembled can be consulted."

															Nor, by an additional provision, could a State grant commissions
to ships of war or letters of marque, "except it be after a
declaration of war by the United States," and only against the
kingdom or state against whom the war had been declared, "unless
such State be infested by pirates, in which case vessels of war may
be fitted for that occasion," &c. 1 Laws of U.S. 15, Bioren's
ed.

															It is impossible to mistake the intention in these provisions,
and to doubt that substantially the same intention was embodied by
restrictions in the present Constitution, similar in terms, though
not entering into so great details. What is, however, decisive as
to this intent in the Constitution is the action on it by the
second Congress, only a few years after, and of which some were
members who aided in framing the Constitution itself. That
Congress, May 2d, 1792, authorized force to be used by the
President to aid in repelling the invasions here referred to in the
Constitution, and they are described in so many words, as "shall be
invaded, or be in imminent danger of invasion from any foreign
nation or Indian tribe." 1 Stat. at Large 264 So again in the act
of Feb. 28, 1795, 1 Stat. at Large 424, and still further
sustaining this view, the power to aid in suppressing insurrections
in a State is given in a separate section, showing that they were
not deemed the invasions and the "imminent danger" of them
expressed in different sections of the act of Congress as well as
of the Constitution. If, however, this "imminent danger" could, by
any stretch of construction, be considered broader, it did not
exist here so as to prevent "delay" in applying to the President
first; because, in truth, before martial law as declared, time had
existed to make application to Congress and the President, and both
had declined to use greater force or to declare war, and the
judicial tribunals of the State were still unmolested in Page 48 U. S. 74 their course. Besides this, at the time of the trespass
complained of here, the few troops which had before taken up arms
for the new constitution had been disbanded, and all further
violence disclaimed.

															Whoever, too, would justify himself under an exception in a law
or constitution must set it up and bring his case within it,
neither of which is attempted here as to this exception; but the
justification is, on the contrary, under this head, placed by the
defendant and the court on the existence of war, and rights
consequent on its existence.

															Some mistake has arisen here, probably from not adverting to the
circumstance that Congress alone can declare war, and that all
other conditions of violence are regarded by the Constitution as
but ordinary cases of private outrage, to be punished by
prosecutions in the courts or as insurrections, rebellions, or
domestic violence, to be put down by the civil authorities, aided
by the militia, or, when these prove incompetent, by the general
government, when appealed to by a State for aid, and matters appear
to the general government to have reached the extreme stage,
requiring more force to sustain the civil tribunals of a State, or
requiring a declaration of war, and the exercise of all its
extraordinary rights. Of these last, when applied to as here, and
the danger has not been so imminent as to prevent an application,
the general government must be the judge, and the general
government is responsible for the consequences. And when it is
asked what shall a State do if the general government, when applied
to, refrains to declare war till a domestic force becomes very
formidable, I reply, exert all her civil power through her
judiciary and executive, and if these fail, sustain them by her
militia, cooperating, and not independent, and if these fail, it is
quite certain that the general government will never hesitate to
strengthen the arm of the State when too feeble in either of these
modes to preserve public order. And how seldom this will be
required of the general government or by means of war may be seen
by our unspotted, unbroken experience of this kind as to the States
for half a century, and by the obvious facts that no occasion can
scarcely ever in future arise for such interference when the
violence, at the utmost, must usually be from a minority of one
State, and in the face of the larger power of the majority within
it, and of the cooperation, if need be, of the whole of the rest of
the Union.

															Carry these constitutional provisions with us, and the facts
which have existed, that there had been no war declared by
Congress, no actual invasion of the State by a foreign enemy, no
imminent danger of it, no emergency of any kind, Page 48 U. S. 75 which prevented time or delay to apply to the general
government, and remember that, in this stage of things, Congress
omitted or declined to do anything, and that the President also
declined to consider a civil violence or insurrection as existing
so as to justify his ordering out troops to suppress it. The State,
then, in and of itself, declared martial law, and the defendants
attempted to enforce it. In such a condition of things, I am not
prepared to say that the authorities of a State alone can exercise
the rights of war against their own citizens; persons, too, who, it
is to be remembered, were for many purposes at the same time under
the laws and protection of the general government. On the contrary,
it seems very obvious, as before suggested, that, in periods of
civil commotion, the first and wisest and only legal measure to
test the rights of parties and sustain the public peace under
threatened violence is to appeal to the laws and the judicial
tribunals. When these are obstructed or overawed, the militia is
next to be ordered out, but only to strengthen the civil power in
enforcing its processes and upholding the laws. Then, in extreme
cases, another assistance is resorted to in the suspension of the
writ of habeas corpus. And, finally, if actual force, exercised in
the field against those in battle array and not able to be subdued
in any other manner, becomes necessary, as quasi war,
whether against a foreign foe or rebels, it must first, as to the
former, be declared by Congress, or recognized and allowed by it as
to the latter, under the duty of the United States "to protect each
of them against invasion" and "against domestic violence." Art. 4,
sec. 4. When this is not done in a particular case by Congress, if
then in session, it is done by the President in conformity to the
Constitution, Art. 1, sec. 8, and the act of Congress of February
28th, 1795, 1 Stat. at Large 424, "to provide for calling forth the
militia to execute the laws of the Union, suppress insurrections,
and repel invasions."

															Under all these circumstances, then, to imply a power like this
declaration of martial law over a State as still lawfully existing
in its legislature would be to imply what is forbidden by all
constitutional checks, forbidden by all the usages of free
governments, forbidden by an exclusive grant of the war power to
Congress, forbidden by the fact that there were no exceptions or
exigencies existing here which could justify it, and, in short,
forbidden by the absence of any necessity in our system for a
measure so dangerous and unreasonable, unless in some great
extremity, if at all, by the general government, which alone holds
the issues of war and the power and means of waging it.

															Under these views and restrictions, the States have succeeded
well, thus far, over half a century, in suppressing domestic Page 48 U. S. 76 violence in other ways than by martial law. The State courts,
with the aid of the militia, as in Shays' rebellion and the Western
insurrection, could, for aught which appears, by help of the posse comitatus, or at least by that militia, have in this
case dispersed all opposition. They did this in both of those
instances, so much more formidable in numbers, and made no resort
to martial law. See before, and Minot's History, 163, 178.
In one of them, not even the writ of habeas corpus was suspended by
the State, and never by the United States, though empowered to do
that in dangerous emergencies. 2 Kent's Com. 24; 2 Story's Com. on
Const., § 1335. But if civil process, aided by the militia, should
fail to quell an insurrection against State laws, which has never
yet happened in our history, then an appeal lies, and is
appropriate, to the general government for additional force before
a resort can be had to supposed belligerent rights, much less to
any exploded and unconstitutional extremes of martial law.

															As before shown, such an appeal had been made here, but not
complied with, because, I presume, the civil authority of the
State, assisted by its own militia, did not appear to have failed
to overcome the disturbance. How then, let me ask, had the State
here become possessed of any belligerent rights? how could it in
any way be possessed of them at the time of the passage of the act
declaring martial law or even at the time of the trespass
complained of? I am unable to discover. Congress, on this occasion,
was in session, ready to act when proper and as proper, and it
alone could, by the Constitution, declare war or, under the act of
May 2d, 1792, allow the militia from an adjoining State to be
called out. 1 Stat. at Large 264. But Congress declared no war, and
conferred no rights of war. The act of Feb. 28th, 1795, 1 Stat. at
Large 424, seems to be made broader as to the power of the
President over all the militia, and, indeed, over the regular
troops, to assist on such an occasion, by another act of March 3d,
1807, 2 Stat. at Large 443. But the President also did nothing to
cause or give belligerent rights to the State. He might, perhaps,
have conferred some such rights on the militia, had he called them
out, under the consent of Congress, but it would be unreasonable,
if not absurd, to argue that the President, rather than Congress,
was thus empowered to declare war, or that Congress meant to
construe such insurrections and the means used to suppress them as
wars, else Congress itself should in each case pronounce them so,
and not intrust so dangerous a measure to mere executive
discretion. But he issued no orders or proclamations. Had he done
so, and marched troops through the action of the Executive
under Page 48 U. S. 77 the standing law is not waging war, yet, I concede, it is
attempting to suppress domestic violence by force of arms, and, in
doing it, the President may possess and exert some belligerent
rights in some extreme stages of armed opposition. It is he,
however, and those acting under his orders, who, it will be seen,
may possibly then, at times, use some such rights, and not the
State or its organs. Nor is it till after the President has
interfered that such rights arise, and then they arise under the
decision and laws and proceedings of the general government. Then
the organs of that government have come to the conclusion that the
exercise of force independent of the civil and State authorities
has become necessary. Federalist, No. 29. The President has been
considered the paramount and final judge as to this, whether in
invasion or rebellion, and not the governors or legislatures of
States. This was fully settled during the war of 1812 with England.
3 Story's Com. on Const. § 1206; 11 Johns. 150. He may then issue
his proclamation for those in insurrection to disperse, and, if not
dispersing, he may afterwards call out the militia to aid in
effecting it. Martin v.
Mott , 12 Wheat. 30. But not till then do any
belligerent rights exist against those even in arms, and then only
by or under him. It is a singular coincidence that, in England, it
is held to be not "lawful" for the chief magistrate to order out
the militia in case of "rebellion and insurrection" without "the
occasion being first communicated to Parliament, if sitting, and,
if not sitting, published by proclamation." 1 MacArthur 28; 12
Statutes at Large 432, 16 George 3, ch. 3; 8 Stat. at Large 634,
sec. 116. And here, under the act of 1793, the President himself
could not call out the militia from another State to assist without
consulting Congress, if in session, much less could he declare war.
1 Stat. at Large 264, sec. 2.

															When the President issues his orders to assemble the militia to
aid in sustaining the civil authorities of the State to enforce the
laws, or to suppress actual array and violence by counter force,
obedience to those orders by the militia then undoubtedly becomes a
military duty. 25 U. S. 12 Wheat. 31. So in England. 8 Stat. at Large sec. 116; 11 Johns. 150;
4 Burrows 2472; 12 Johns. 257. And a refusal to obey such a
military summons may be punished in due form, without doubt, by a
court-martial. Houston v.
Moore , 5 Wheat. 1, 18 U. S. 20 , 18 U. S. 35 , 18 U. S. 37 ; 3
Story's Com. on Const., § 120. When such troops, called out by the
general government, are in the field on such an occasion, what they
may lawfully do to others who are in opposition, and do it by any
mere belligerent rights, is a very different question. For, now, I
am examining only whether any Page 48 U. S. 78 belligerent rights before this event existed on the part of the
State, as matters then stood, commensurate with this strong measure
of putting martial law in force over the whole State. The
precedents, as well as the sound reasons and principles just
adverted to are all, in my view, the other way.

															Under our present Constitution, the first, if not nearest,
precedent in history as to the course proper to be followed in any
State insurrection is Shays' rebellion in Massachusetts. Having
occurred in 1787, before the formation of the Federal Constitution,
and having been suppressed by the State alone under its own
independent authority, Minot's History of Shays' Insurrection, p.
95, it was untrammeled by any of the provisions now existing about
war and insurrections in that Constitution. But the course pursued
on that occasion is full of instruction and proof as to what was
deemed the legal use of the militia by the State when thus called
out, under the old Confederation, and the extent of the rights of
force incident to a State on a rebellion within its limits. We have
before shown that the provisions in the old Confederation as to war
were much the same in substance as in the present Constitution. Now
in Shays' rebellion, the resort was not first had at all to the
military, but to civil power, till the courts themselves were
obstructed and put in jeopardy. And when the militia were finally
called out, the whole State, or any part of it, was not put under
martial law. The writ of habeas corpus was merely suspended for a
limited time, and the military ordered to aid in making arrests
under warrants, and not by military orders, as here. They were
directed to protect civil officers in executing their duty, and
nothing more, unless against persons when actually in the field
obstructing them. Ibid., 101.

															The language of Governor Bowdoin's orders to Major-General
Lincoln, January 19th, 1787, shows the commendable caution deemed
legal on such an occasion:

															"Consider yourself in all your military offensive operations
constantly as under the direction of the civil officer, saving
where any armed force shall appear and oppose your marching to
execute these orders."

															This gives no countenance to the course pursued on this
occasion, even had it been attempted to be justified in the
pleadings as a right of war, though in a domestic insurrection, and
not yet recognized as existing so as to require countenance and
assistance through the interposition of force by the general
government. Even General Gage did not, though illegally, venture to
declare martial law in 1775 till the fact occurred, as he averred,
that the municipal laws could not be executed. Much less was it
unlikely here that these laws could not have Page 48 U. S. 79 been executed by the civil power, or at least by that assisted
by the militia, when the judges of the Supreme Court of Rhode
Island had been appointed their own judges, and been approved by
those who were considered in an insurrectionary condition.

															In substantial accordance with these views was likewise the
conduct of the general government in the insurrection against its
own laws in the only other case of rebellion of much note, except
the controverted one of Burr's, in our national history. It was in
Western Pennsylvania, in 1793, and where the rebellion, or violent
resistance, and even treason, as adjudged by the courts of law in The United States v. The
Insurgents of Pennsylvania , 2 Dallas 335, were
committing against the government of the United States.

															So far, however, from martial law having then been deemed proper
or competent to be declared by Congress, and enforced anywhere, or
even the writ of habeas corpus suspended, the troops were called
out expressly to co operate with the civil authorities, these
having proved insufficient. Findley's Hist., App. 316, 317. But
that of itself did not seem to be considered as per se amounting to war, or as justifying war measures. The government,
therefore, neither declared war nor waged it without that
declaration, but did what seems most humane and fit on such
occasions, till greater resistance and bloodshed might render war
measures expedient -- that is, marched the troops expressly with a
view only to "cause the laws to be duly executed."

															Nor was this done till Judge Peters ,who officiated in that
district in the courts of the United States, certified that he had
issued warrants which the marshal was unable to execute without
military aid. 1 American State Papers 185. The acts of Congress
then required such a certificate before allowing the militia to be
called out. 1 Stat. at Large 264. The marshal also wrote that he
needed "military aid." 1 Am.State Papers 186. The additional force
authorized by Congress was expressly for that same purpose, as well
as to suppress such combinations. 1 Stat. at Large 403. And though,
with these objects, so fully did it seem proper to reach this last
one by means of the first, the orders in the field were to a like
effect, and the arrests made were by authority of the civil
officers, and those seized were carried before those authorities
for hearing and trial. Findley 181.

															The Secretary of War likewise issued public orders in which,
among other things, it is stated that "one object of the expedition
is to assist the marshal of the district to make prisoners,"
&c.

															"The marshal of the District of Pennsylvania will move with you
and give you the names of the offenders, their Page 48 U. S. 80 descriptions and respective places of abode, who are to be made
prisoners under criminal process."

															And so exclusively did Congress look to the laws of the land for
a guide that special sessions of the Circuit Court nearer the place
of offence were allowed, March 2d, 1793, 1 Stat. at Large 334, to
be called when necessary to try offenders.

															The President, throughout the excitement, evinced the
characteristic moderation and prudence of Washington, constantly
enjoined a subordination of the military to the civil power, and
accompanied the troops in person to see that the laws were
respected. Findley's History of the Western Insurrection, p. 144.
"He assured us," says Findley, p. 179,

															"that the army should not consider themselves as judges or
executioners of the laws, but as employed to support the proper
authorities in the execution of them."

															That he had issued orders "for the subordination of the army to
the laws." P. 181. This was in accordance with the course pursued
in England on some similar occasions. 1 MacArthur on Courts-Martial
28. And though some arrests were to be made, they were to be in a
legal civil form, for he said,

															"Nothing remained to be done by them but to support the civil
magistrate in procuring proper subjects to atone for the outrages
that had been committed."

															Findley 187. The orders or warrants executed seem to have
emanated from the federal judge of the Pennsylvania District. Pp.
200, 201, 204, ch. 16.

															The arrests in 1805 and 1806, in what is called Burr's
conspiracy, furnish another analogy and precedent. They were not
made till an oath and warrant had issued, except in one or two
cases. And in those, the prisoners were immediately discharged, as
illegally arrested, as soon as writs of habeas corpus could be
obtained and enforced. By the Constitution, Art. 3, sec. 9,

															"the privilege of the writ of habeas corpus shall not be
suspended unless when, in cases of rebellion or invasion, the
public safety may require it."

															And Congress then declined to suspend that writ, much less to
declare martial law, even where the supposed rebellion existed. Nor
was the latter done by the States in the rebellions of 1787 and
1794, as before explained, but merely the writ of habeas corpus
suspended in one of them. It is further characteristic of the
jealousy of our people over legislative action to suspend the
habeas corpus, though expressly allowed by the Constitution, that,
after a bill to do it in 1807 seems to have passed the Senate of
the United States, through all its readings in one day, and with
closed doors, the House of Representatives rejected it on the first
reading by a vote of 113 to 19. See the Journals of the
two Houses, 25th and 27th Page 48 U. S. 81 Jan., 1807. And this although the bill to suspend the habeas
corpus provided it should be done only when one is charged on oath
with treason or misdemeanour affecting the peace of the United
States, and imprisoned by warrant on authority of the President of
the United States, or the Governor of a State or Territory. It was
not deemed prudent to suspend it, though in that mild form,
considering such a measure at the best but a species of
dictatorship, and to be justified only by extreme peril to the
public safety. And Mr. Jefferson has left on record his opinion
that it was much wiser, even in insurrections, never even to
suspend the writ of habeas corpus. 2 Jefferson's Cor. and Life,
274, 291. But what would have been thought then of a measure of
"martial law," established over the whole country, acting too
without oath or warrant, and under no grant by the Constitution,
instead of a mere suspension of a writ, and which suspension was
permitted by the Constitution in certain exigencies? Again, if only
to repeal or suspend the habeas corpus requires a permissive clause
in the Constitution, how much more should the repeal or suspension
of all municipal laws? Indeed, the Mutiny Act itself, as for
instance that of 53 George 3, ch. 18, sec. 100, does not allow the
military to break open a house to arrest so bad a culprit as a
deserter without a warrant and under oath. 38 Stat. at Large
97.

															So, though a rebellion may have existed in Burr's case in the
opinion of the Executive, and troops had been ordered out to assist
in executing the laws and in suppressing the hostile array, this
court held that an arrest by a military officer of one concerned in
the rebellion, though ordered by the Executive, was not valid
unless he was a person then actually engaged in hostilities, or in
warlike array, or in some way actually abetting those who then were
so. Bollman and Swartout's
Case , 4 Cranch 75, 8 U. S. 101 , 8 U. S. 126 ; 1
Burr's Tr. 175. And if an arrest was made without an order of the
commander-in-chief, the court would discharge at once. Alexander's
Case , 4 Cranch 75, 8 U. S. 76 , in
note. It should also be by warrant, and on oath, and, in most
cases, these were then resorted to be General Wilkinson. Annual
Register for 1807, p. 84. And so jealous were the people then of
abuses that a neglect by him of obedience to the requisitions of
the habeas corpus in some respects led to a presentment against his
conduct by the grand jury of New Orleans. Annual Register for 1807,
p. 98. But here, no actual arrest was made, though attempted, and,
what was less justifiable, without oath or warrant, the house was
broken into, and hence any justification by martial law failing
which might be set up for the former would seem more clearly to
fail for the latter. Certainly it must Page 48 U. S. 82 fail unless the latter was proper in this way, under all the
circumstances, though no one was there liable to be arrested, and
none actually arrested.

															This doctrine of their failing is familiar in municipal law in
breaking houses to seize persons and property on legal precept,
when none are found there liable to be seized. 5 Coke 93 a ;
Bac.Abr. Execution, W.

															In civil dissensions, the case stands very differently from
foreign ones. In the latter, force is the only weapon after reason
and negotiation have failed. In the former, it is not the course of
governments, nor their right, when citizens are unable to convince
each other, to fly at once to arms and military arrests and
confiscations. The civil power can first be brought to bear upon
these dissensions and outbreaks through the judiciary, and usually
can thus subdue them.

															All these principles, and the precedents just referred to, show
that the course rightfully to be pursued on such unfortunate
occasions is that already explained: first, resorting to municipal
precepts; next, strengthening them by cooperation of the militia if
resisted; and then, if the opposition are in battle array, opposing
the execution of such precepts to obtain further assistance, if
needed, from the general government to enforce them, and to seize
and suppress those so resisting in actual array against the
State.

															But affairs must advance to this extreme stage through all
intermediate ones, keeping the military in strict subordination to
the civil authority except when acting on its own members, before
any rights of mere war exist or can override the community, and
then, in this country, they must do that under the countenance and
controlling orders of the general government. Belligerent measures,
too, must come not from subordinates, but from those empowered to
command, and be commensurate only with the opposing array, the
persons, places, and causes where resistance flagrante
bello exists of the reckless character justifying violence and
a disregard of all ordinary securities and laws. It is not a little
desirable that this doctrine should prove to be the true one, on
account of its greater tendency to secure orderly and
constitutional liberty instead of rude violence, to protect rights
by civil process rather than the bayonet, and to render all
domestic outbreaks less bloody and devastating than they otherwise
would be.

															There having been, then, no rights of war on the part of the
State when this act of Assembly passed, and certainly none which
could justify so extreme a measure as martial law over the whole
State as incident to them, and this act being otherwise
unconstitutional, the justification set up under it must, in Page 48 U. S. 83 my opinion, fail. If either government, on the 24th of June,
possessed authority to pass an act establishing martial law to this
extent, it was, of course that of the United States, the government
appointed in our system to carry on war and suppress rebellion or
domestic violence when a State in unable to do it by her own
powers. But as the general government did not exercise this
authority, and probably could not have done it constitutionally in
so sweeping a manner and in such an early stage of resistance, if
at all, this furnishes an additional reason why the State alone
could not properly do it.

															But if I err in this, and certain rights of war may exist with
one of our States in a civil strife like the present, in some
extreme stage of it, independent of any act of Congress or the
President recognizing it, another inquiry would be whether, in the
state of affairs existing at this time, such rights had become
perfected, and were broad enough, if properly pleaded, to cover
this measure of martial law over the whole State and the acts done
under it in the present instance. The necessities of foreign war,
it is conceded, sometimes impart great powers as to both things and
persons. But they are modified by those necessities, and subjected
to numerous regulations of national law and justice and humanity.
These, when they exist in modern times, while allowing the persons
who conduct war some necessary authority of an extraordinary
character, must limit, control, and make its exercise under certain
circumstances and in a certain manner justifiable or void, with
almost as much certainty and clearness as any provisions concerning
municipal authority or duty. So may it be in some extreme stages of
civil war. Among these, my impression is that a state of war,
whether foreign or domestic, may exist, in the great perils of
which it is competent, under its rights and on principles of
national law, for a commanding officer of troops under the
controlling government to extend certain rights of war not only
over his camp, but its environs and the near field of his military
operations. 6 American Archives 186. But no further, nor wider.
Johnson v. Davis et al., 3 Martin, 530, 551. On this rested the
justification of one of the great commanders of this country and of
the age in a transaction so well known at New Orleans.

															But in civil strife, they are not to extend beyond the place
where insurrection exists. 3 Martin 551. Nor to portions of the
State remote from the scene of military operations, nor after the
resistance is over, nor to persons not connected with it. Grant
v. Gould et al., 2 Hen.Bl. 69. Nor, even within the scene, can
they extend to the person or property of citizens against whom no
probable cause exists which Page 48 U. S. 84 may justify it. Sutton v. Johnston, 1 D. & E. 549.
Nor to the property of any person without necessity or civil
precept. If matters in this case had reached such a crisis, and had
so been recognized by the general government, or if such a state of
things could and did exist as to warrant such a measure,
independent of that government, and it was properly pleaded, the
defendants might perhaps be justified within those limits, and
under such orders, in making search for an offender or an opposing
combatant, and, under some circumstances, in breaking into houses
for his arrest.

															Considerations like these show something in respect to the
extent of authority that could have been exercised in each of these
cases as a belligerent right had war been properly declared before
and continued till that time, 6 American Archives 232, neither of
which seems to have been the case. It is obvious enough that,
though on the 24th of June, five days previous, Luther had been in
arms at Providence, several miles distant, under the governor
appointed under the new constitution, in order to take possession
of some of the public property there, and though in the record it
is stated that the defendants offered to prove he was at this time
in arms somewhere, yet, the fact not being deemed material under
the question of martial law, on which the defence was placed, it
does not seem to have been investigated. How it might turn out can
be ascertained only on a new trial. But to show it is not
uncontroverted, the other record before us as to this transaction
states positively that Mrs. Luther offered to prove there was no
camp nor hostile array by any person in the town where this
trespass was committed, on the 29th of June, nor within twenty-five
miles of it in any part of the State, and that Dorr had, on the
27th instant, two days previous, published a statement against "any
further forcible measures" on his part, and directing that the
military "be dismissed."

															The collection which had there happened in relation to the
disputed rights as to the public property under the new
constitution seems to have been nothing, on the evidence, beyond a
few hundreds of persons, and nothing beyond the control of the
courts of law, aided by the militia, if they had been wisely
resorted to, nothing which, when represented to the Executive of
the United States, required, in his opinion, from its apprehended
extent or danger, any war measures, the calling out of the militia
of other States, or aid of the public troops, or even the actual
issue of a proclamation; and the persons who did assemble had, it
appears, two days before the trespass, been disbanded, and further
force disclaimed, without a gun being fired or blood in any way
shed on that occasion. Page 48 U. S. 85 Under the worst insurrections, and even wars, in our history, so
strong a measure as this is believed never to have been ventured on
before by the general government, and much less by any one of the
States, as within their constitutional capacity, either in peace,
insurrection, or war. And if it is to be tolerated, and the more
especially in civil feuds like this, it will open the door in
future domestic dissensions here to a series of butchery, rapine,
confiscation, plunder, conflagration, and cruelty unparalleled in
the worst contests in history between mere dynasties for supreme
power. It would go in practice to render the whole country -- what
Bolivar at one time seemed to consider his -- a camp, and the
administration of the government a campaign.

															It is to be hoped we have some national ambition and pride,
under our boasted dominion of law and order, to preserve them by
law, by enlightened and constitutional law, and the moderation of
superior intelligence and civilization, rather than by appeals to
any of the semi-barbarous measures of darker ages and the
unrelenting, lawless persecutions of opponents in civil strife
which characterized and disgraced those ages.

															Again, when belligerent measures do become authorized by extreme
resistance, and a legitimate state of war exists, and civil
authority is prostrate, and violence and bloodshed seem the last
desperate resort, yet war measures must be kept within certain
restraints in all civil contests in all civilized communities.

															"The common laws of war, those maxims of humanity, moderation,
and honor," which should characterize other wars, Vattel says, B.
3, ch. 8, sec. 294 and 295, "ought to be observed by both parties
in every civil war." Under modern and Christian civilization, you
cannot needlessly arrest or make war on husbandmen or mechanics, or
women and children. Vattel, B. 3, ch. 8, sec. 149. The rights of
war are against enemies, open and armed enemies, while enemies and
during war, but no longer. And the force used then is not to exceed
the exigency, not wantonly to injure private property, nor disturb
private dwellings and their peaceful inmates. Vattel, B. 3, ch. 8,
sec. 148. Much will be allowed to discretion if manifestly
exercised with honesty, fairness, and humanity. But the principles
of the common law, as opposed to trials without a jury, searches of
houses and papers without oath or warrant, and all despotic
invasions on private personal liberty, the customary usages to
respect the laws of the land except where a great exigency may
furnish sufficient excuse, should all limit this power, in many
respects, in practice. 2 Stephens on Laws of England 602. The Page 48 U. S. 86 more especially must it be restrained in civil strife, operating
on our own people in masses and under our system of government in
distributing authority between the States and the Union, as the
great powers of war are intrusted to the latter alone, and the
latter is also to recognize when that which amounts to a rebellion
exists, and interfere to suppress it if necessary with the
incidents to such interference. Under the right of war, the defence
must also rest not only on what has been alluded to, but, as before
suggested, on the question whether the insurrection at the time of
this trespass was not at an end. For if one has previously been in
arms, but the insurrection or war is over, any belligerent rights
cease, and no more justify a departure from the municipal laws than
they do before insurrection or war begins. If any are
noncombatants, either as never having been engaged in active
resistance or as having abandoned it, the rights of civil warfare
over them would seem to have terminated, and the prosecution and
punishment of their past misconduct belongs then to the municipal
tribunals, and not to the sword and bayonet of the military.

															The Irish Rebellion Act, as to martial law, was expressly
limited "from time to time during the continuance of the said
rebellion." Tytler on Military Law, 405. And in case of a foreign
war, it is not customary to make prisoners and arrest enemies after
the war has ceased and been declared abandoned, though the terms of
peace have not been definitely settled. And if any of them
voluntarily, like Bonaparte, abandon the contest or surrender
themselves as prisoners, the belligerent right to continue to
imprison them after the war is at an end, much less to commit
violence, as here, on others, with a view to capture them, is
highly questionable, and has been very gravely doubted. Vattel, B.
3, ch. 8, sec. 152, 154. Circumstances like these make the rule of
force and violence operate only to a due extent and for a due time,
within its appropriate sphere, and secure beyond that extent and
time the supremacy of the ordinary laws of the land. Much more in a
social or civil war, a portion of the people, where not then in
arms, though differing in opinion, are generally to be treated as
noncombatants, and searched for and arrested, if at all, by the
municipal law, by warrant under oath, and tried by a jury, and not
by the law martial.

															Our own and English history is full of such arrests and trials,
and the trials are held not round a drum-head or cannon, but in
halls of justice and under the forms of established jurisprudence. See State Trials, passim. The writ of habeas
corpus, also, unless specially suspended by the legislature
having Page 48 U. S. 87 power to do so, is as much in force in intestine war as in
peace, and the empire of the laws is equally to be upheld, if
practicable. Ibid., 532; 8 U. S. 4 Cranch
101; 2 Hen.Bl. 69.

															To conclude, it is manifest that another strong evidence of the
control over military law in peace, and over these belligerent
rights in civil strife, which is proper in a bold and independent
judiciary, exists in this fact that whenever they are carried
beyond what the exigency demands, even in cases where some may be
lawful, the sufferer is always allowed to resort, as here, to the
judicial tribunals for redress. 4 Taunt. 67, and Baily v.
Warder, 4 Maule & Selw. 400. See other cases
before cited.

															Bills or clauses of indemnity are enacted in England, otherwise
officers would still oftener be exposed to criminal prosecution and
punishment for applying either belligerent rights or the military
law in an improper case, or to an excess in a proper case, or
without probable cause. 1 MacArthur on Courts-Martial 33, 34;
Tytler on Military Law 49 and 489; see last act in
Appendix to Tytler and Simmons. And when, in an insurrection, an
opponent or his property is treated differently from what the laws
and constitution, or national law, sanction, his remedy is sacred
in the legal tribunals. And though the offender may have exposed
himself to penalties and confiscations, yet he is thus not to be
deprived of due redress for wrongs committed on himself.

															The plaintiff in one of these records is a female, and was not
at all subject to military duty and laws, and was not in arms as an
opponent supporting the new constitution. And if the sanctity of
domestic life has been violated, the castle of the citizen broken
into, or property or person injured without good cause, in either
case, a jury of the country should give damages, and courts are
bound to instruct them to do so unless a justification is made out
fully on correct principles. This can and should be done without
any vindictive punishment when a party appears to have acted under
a supposed legal right. And indeed such is the structure of our
institutions that officers, as well as others, are often called on
to risk much in behalf of the public and of the country in time of
peril. And if they appear to do it from patriotism, and with proper
decorum and humanity, the legislature will, on application, usually
indemnify them by discharging from the public treasury the amount
recovered for any injury to individual rights. In this very case,
therefore, the defence seems to be by the State, and at its
expense. It shows the beautiful harmony of our system not to let
private damage be suffered wrongfully without redress, but, at the
same time, not to let a public agent suffer Page 48 U. S. 88 who, in a great crisis, appears to have acted honestly for the
public, from good probable cause, though in some degree mistaking
the extent of his powers, as well as the rights of others. But
whether any of the rights of war, or rights of a citizen in civil
strife, independent of the invalid act of the Assembly declaring
martial law over all the State, have here, on the stronger side
against the feebler, been violated does not seem yet to have been
tried. The only point in connection with this matter which appears
clearly to have been ruled at the trial was the legality or
constitutionality of that act of Assembly. I think that the ruling
made was incorrect, and hence that there has been a mistrial.

															The judgment should, in this view, be reversed, and though it is
very doubtful whether, in any other view, as by the general rights
of war, these respondents can justify their conduct on the facts
now before us, yet they should be allowed an opportunity for it,
which can be granted on motion below to amend the pleas in
justification. Orders MARTIN LUTHER v. LUTHER M. BORDEN ET AL This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Rhode Island, and was argued by counsel. On consideration whereof,
it is now here ordered and adjudged by this court that the judgment
of the said Circuit Court in this cause be and the same is hereby
affirmed, with costs. RACHEL LUTHER v. LUTHER M. BORDEN ET AL. This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Rhode Island, and on the questions and points on which the judges
of the said Circuit Court were opposed in opinion, and which were
certified to this court for its opinion agreeably to the act of
Congress in such case made and provided, and was argued by counsel.
On consideration whereof, and it appearing to this court, upon an
inspection of the said transcript, that no point in the case,
within the meaning of the act of Congress, has been certified to
this court, it is thereupon now here ordered and decreed by this
court that this cause be, and the same is hereby, dismissed, and
that this cause be, and the same is hereby, remanded to the said
Circuit Court to be proceeded in according to law.