Luther v. Borden et al.

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 defend

Luther v. Borden et al.

ants, and by *their counsel insisted on and objected to in manner as aforesaid, do not appear by the record [*19 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.

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.

The case was argued by Mr. Hallett and Mr. Clifford, for the plaintiff in error, although the brief was signed by Mr. Turner, Mr. Hallett, Mr. R. J. Walker, and Mr. Clifford. On the part of the defendant in error, it was argued by Mr. Whipple and Mr. Webster.

The brief filed on behalf of the plaintiff in error recited the facts contained in the bill of exceptions and documents attached thereto, in chronological order, and concluded thus:

Points.

And upon these facts the plaintiff in error will maintain, that, by the fundamental principles of government and of the sovereignty of the people acknowledged and acted upon in the United States, and the several States thereof, at least ever since the Declaration of Independence in 1776, the constitution and frame of government prepared, adopted, and established as above set forth was, and became thereby, the supreme fundamental law of the State of Rhode Island, and was in full force and effect, as such, when the trespass alleged in the plaintiff's writ was committed by the defendants.

That this conclusion also follows from one of the foregoing fundamental principles of the American system of government, which is, that government is instituted by the people, and for the benefit, protection, and security of the people, nation, or community. And that when any government shall

Luther v. Borden et al.

be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish the

*20] same, in such manner as shall be judged most con

ducive to the public weal.

But that, in the case at bar, the argument is sufficient, even should it limit the right (which the plaintiff disclaims) to a majority of the voting people, such majority having, in fact, adopted and affirmed the said constitution of Rhode Island.

To sustain this general view, the following proposition is submitted as the theory of American government, upon which the decision of this cause must depend.

The institution of American liberty is based upon the principles, that the people are capable of self-government, and have an inalienable right at all times, and in any manner they please, to establish and alter or change the constitution or particular form under which that government shall be effected. This is especially true of the several States composing the Union, subject only to a limitation provided by the United States Constitution, that the State governments shall be republican.

In order to support this proposition, we have to establish the following points:

1st. That the sovereignty of the people is supreme, and may act in forming government without the assent of the existing government.

2d. That the people are the sole judges of the form of government best calculated to promote their safety and happi

ness.

3d. That, as the sovereign power, they have a right to adopt such form of government.

4th. That the right to adopt necessarily includes the right to abolish, to reform, and to alter any existing form of government, and to substitute in its stead any other that they may judge better adapted to the purposes intended.

5th. That if such right exists at all, it exists in the States under the Union, not as a right of force, but a right of sovereignty; and that those who oppose its peaceful exercise, and not those who support it, are culpable.

6th. That the exercise of this right, which is a right original, sovereign, and supreme, and not derived from any other human authority, may be, and must be, effected in such way and manner as the people may for themselves determine.

7th. And more especially is this true in the case of the then subsisting government of Rhode Island, which derived no power from the charter or from the people to alter or amend

Luther v. Borden et al.

the frame of government, or to change the basis of representation, or even to propose initiatory measures to that end.

Upon the foregoing hypothesis, then, the following questions arise:

1st. Had the people of Rhode Island, in the month of *December, 1841, without the sanction or assent of the Legislature, a right to adopt a State constitution [*21 for themselves, that constitution establishing a government, republican in form, within the meaning of the Constitution of the United States?

2d. Was the evidence of the adoption by the people of Rhode Island of such a constitution, offered in the court below by the plaintiff in this cause, competent to prove the fact of the adoption of such constitution?

3d. Upon the issuing of the proclamation of the convention, by which it had been declared duly adopted, namely, on the 13th day of January, 1842, and the acts under it, did not that constitution become the supreme law of the State of Rhode Island?

If these questions are answered in the negative, then the theory of American free governments for the States is unavailable in practice.

If they be answered in the affirmative, then the consequences which necessarily follow are,

1st. The charter government was, ipso facto, dissolved by the adoption of the people's constitution, and by the organization and proceedings of the new government under the

same.

2d. Consequently, the act of March, 1842, "in relation to offences against the sovereign power of the State," and the act "declaring martial law," passed June 24, 1842, were both void.

3d. The act of June, 1842, being void, affords no justification of the acts complained of in the plaintiff's declaration. 4th. Those acts, by the common law, amount to trespass, the facts being admitted by the defendants.

It has already been said that Mr. Hallett alone argued the case on behalf of the plaintiff in error, but the Reporter is much at a loss how to give even a skeleton of the argument, which lasted for three days, and extended over a great variety of matter. The following points were discussed, and authorities read.

1st. What is a State?

Sydney on Government, pp. 15, 24, 349, 399; Locke on Government, B. 2, ch. 8, §§ 95, 96, &c.; Burgh's Pol. Dis., Vol. I., pp. 3, 4, 6; Vattel, L. N., p. 18; Virginia Convention,

Luther v. Borden et al.

1775; Wilson's Works, Vol. I., pp. 17, 304, 305; Federalist, No. 39, p. 150; 2 Dall., 419, 463, 464; 3 Dall., 93, 94; 1 Tuck. Bl. Com., App., p. 10; 1 Story, Com. on Const., p. 193, § 208; 1 Elliott's Deb., Gilp. ed., p. 65.

2d. Who are the people?

The early political writers indiscriminately use the words community, society, state, nation, body of the community, and *great body of the people, to express the same idea, and sometimes the words the governed are used in the

*22]

same sense.

Sydney on Government, ch. 1, 2, 3; Locke on Government, B. 2, ch. 8, §§ 95 et seq., ch. 13, &c.; Burgh's Pol. Dis., Vol. I. ch. 2, 3, Vol. III., pp. 275-278; Vattel, L. N., p. 18; Virginia Convention, 1775, pp. 16, 27, 42, 78; Declaration of Amer. Ind., &c.; Trevett v. Weeden, Varnum's Argument in 1787; Wilson's Works, Vol. I., pp. 17, 20, 25, 417, 420, Vol. II., p. 128, Vol. III., p. 291; Federalist, Nos. 1, 7, 14, 21, 22, 39, 40, 63; Virginia Convention, 1788, pp. 46, 57, 58, 64, 65, 67-70, 79, 87, 95, &c.; 2 Dall., 448, 449, 452, 454, 458, 470-472; 3 Dall., 86, 92-94; 1 Tuck. Bl. Com., Pt. 1, note at p. 89, App., pp. 4, 9, 87; 1 Cranch, 176; Helvidius, p. 78 (by Mr. Madison); Rayner's Life of Jefferson, 377, 378; John Taylor, of Car., pp. 4, 412, 413, 519, 447; Rawle on the Const., pp. 14-17.

He cites Vattel, and uses the word people in the same sense Vattel had used the word state.

4 Wheat., p. 404; Story's Com. on the Const., Vol. I., B. 2, §§ 201-204, &c.; Virginia Convention, 1829, 1830; Debates in Congress (Michigan), Reg. Deb., Vol. XIII., Pt. 1; Everett's Address, Jan. 9, 1836; Burke's Report.

All the American political writers, &c., use the term people to express the entire numerical aggregate of the community, whether state or national, in contradistinction to the government or legislature.

Mr. Burke, in his Report, cited above, says, that "the (political) people include all free white male persons of the age of twenty-one years, who are citizens of the state, are of sound mind, and have not forfeited their right by some crime against the society of which they are members."

3d. Where resides the ultimate power or sovereignty?

Sydney on Government, pp. 70, 349, 436; Locke on Government, p. 316; Burgh's Pol. Dis., Vol. I., pp. 3, 4, 6, Vol. III., pp. 277, 278, 299, 447; Paine's Rights of Man, p. 185; Roger Williams on Civil Liberty; Virginia Convention of 1775; Dec. of Amer. Ind.; Wash. Farewell Address; Trevett v. Weeden, Varnum's Argument; Wilson's Works, Vol.