received. He tells you that this is the only thing he has to regret, as it may seem to be an evasion, as he doubts whether it was entirely correct. If it was an evasion, if it was a deviation, if it was an error, it was an error of mercy, an error of kindness,—an error that proves he had no hostility to the prisoner at the bar. It does not in the least vary his testimony or affect its correctness. Gentlemen, I look on the evidence of Mr. Colman as highly important; not as bringing into the cause new facts, but as confirming, in a very satisfactory manner, other evidence. It is incredible that he can be false, and that he is seeking the prisoner's life. through false swearing. If he is true, it is incredible that the prisoner can be innocent.

Gentlemen, I have gone through with the evidence in this case, and have endeavored to state it plainly and fairly before you. I think there are conclusions to be drawn from it, the accuracy of which you cannot doubt. I think you cannot doubt that there was a conspiracy formed for the purpose of committing this murder, and who the conspirators were; that you cannot doubt that the Crowninshields and the Knapps were the parties in this conspiracy; that you cannot doubt that the prisoner at the bar knew that the murder was to be done on the night of the 6th of April; that you cannot doubt that the murderers of Captain White were the suspicious persons seen in and about Brown street on that night; that you cannot doubt that Richard Crowninshield was the perpetrator of that crime; that you cannot doubt that the prisoner at the bar was in Brown street on that night. If there, then it must be by agreement, to countenance, to aid, the perpetrator, and, if so, then he is guilty as principal.

Gentlemen, your whole concern should be to do your duty, and leave consequences to take care of themselves. You will receive the law from the court. Your verdict, it is true, may endanger the prisoner's life, but then it is to save other lives. If the prisoner's guilt has been shown and proved beyond all reasonable doubt, you will convict him. If such reasonable doubts of guilt still remain, you will acquit him. You are the judges of the whole case. You owe a duty to the public, as well as to the prisoner at the bar. You cannot presume to be wiser than the law. Your duty is a plain, straightforward one. Doubtless we would all judge him in mercy. Towards him, as an individual, the law inculcates no hostility; but towards him, if proved to be a murderer, the law, and the oaths you have taken, and public justice demand that you do your duty. With consciences satisfied with the discharge of duty, no consequences can harm you. There is

no evil that we cannot either face or fly from but the consciousness of duty disregarded. A sense of duty pursues us ever. It is omnipresent, like the Deity. If we take to ourselves the wings of the morning, and dwell in the uttermost parts of the sea, duty performed or duty violated is still with us, for our happiness or our misery. If we say the darkness shall cover us, in the darkness, as in the light, our obligations are yet with us. We cannot escape their power, nor fly from their presence. They are with us in this life, will be with us at its close; and in that scene of inconceivable solemnity, which lies yet farther onward, we shall still find ourselves surrounded by the consciousness of duty, to pain us wherever it has been violated, and to console us so far as God may have given us grace to perform it.

ARGUMENT IN THE CASE OF LUTHER AGAINST BORDEN, IN THE SUPREME COURT OF THE UNITED

STATES, 1848.

STATEMENT.

This controversy arose out of what is known as "Dorr's Rebellion,"a name given to the internal strife and violence in the state of Rhode Island over the adoption of a constitution in place of the charter granted by Charles II. The facts are fully stated in the following argument. The case was argued by Attorney General Clifford and Mr. Hallett for the plaintiffs in error, and by Daniel Webster and Mr. Whipple for the defendants. The court (Mr. Justice Woodberry alone dissenting) declined to take jurisdiction, on the ground that it was purely a political question, lying beyond the reach of judicial authority.1

ARGUMENT.

May it please your honors, there is something novel and extraordinary in the case now before the court. All will admit that it is not such a one as is usually presented for judicial consideration. It is well known that in the years 1841 and 1842 political agitation existed in Rhode Island. Some of the citizens of that state undertook to form a new constitution of government, beginning their proceedings towards that end by meetings of the people, held without authority of law, and conducting those proceedings through such forms as led them, in 1842, to say that they had established a new constitution and form of government, and placed Mr. Thomas W. Dorr at its head. The previously existing, and then existing, government of Rhode Island, treated these proceedings as nugatory, so far as they went to establish a new constitution, and criminal, so far as they proposed to confer authority upon any persons to interfere with the acts of the existing government, or to exercise powers of legislation or administration of the laws. All will remember that the state of things approached, if not actual conflict between men in arms, at least the "perilous edge of battle." Arms were resorted to, force was used, and greater force threatened. In June, 1842, this agitation subThe "new government," as it called itself, disappeared from the scene of action. The former government—the “charter government," as it was sometimes styled-resumed undisputed control, went on in its ordinary course, and the peace of the state was restored. But the past had been too serious to be forgotten.

17 Howard, 1.

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

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

However difficult it may be, and I suppose it to be wholly impossible, that this court should take judicial cognizance of the questions which the plaintiff has presented to the court below, yet I do not think it a matter of regret that the cause has come hither. It is said, and truly said, that the case involves the consideration and discussion of what are the true principles of government in

our American system of public liberty. This is very right. The case does involve these questions, and harm can never come from their discussion, especially when such discussion is addressed to reason and not to passion; when it is had before magistrates and lawyers, and not before excited masses out of doors. I agree entirely that the case does raise considerations, somewhat extensive, of the true character of our American system of popular liberty; and although I am constrained to differ from the learned counsel who opened the cause for the plaintiff in error, on the principles and character of that American liberty, and upon the true characteristics of that American system on which changes of the government and constitution, if they become necessary, are to be made, yet I agree with him that this case does present them for consideration.

Now, there are certain principles of public liberty which, though they do not exist in all forms of government, exist, nevertheless, to some extent, in different forms of government. The protection of life and property, the habeas corpus, trial by jury, the right of open trial, these are principles of public liberty existing in their best form in the republican institutions of this country, but, to the extent mentioned, existing also in the constitution of England. Our American liberty, allow me to say, therefore, has an ancestry, a pedigree, a history. Our ancestors brought to this continent all that was valuable, in their judgment, in the political institutions of England, and left behind them all that was without value, or that was objectionable. During the colonial period they were closely connected, of course, with the colonial system; but they were Englishmen, as well as colonists, and took an interest in whatever concerned the mother country, especially in all great questions of public liberty in that country. They accordingly took a deep concern in the revolution of 1688. The American colonists had suffered from the tyranny of James the Second. Their charters had been wrested from them by mockeries of law, and by the corruption of judges in the city of London; and in no part of England was there more gratification, or a more resolute feeling, when James abdicated, and William came over, than in the American colonies. All know that Massachusetts immediately overthrew what had been done under the reign of James, and took possession of the colonial fort in the harbor of Boston in the name of the new king.

When the United States separated from England by the Declaration of 1776, they departed from the political maxims and examples of the mother country, and entered upon a course more