RHODE ISLAND CAUSES,

Present— Chief Justice TANEY, and Justices WAYNE, MCLEAN, NELSON, WOODURY, and GEIER. Justices CATRON and DANIEL were unable to sit in the cause, being confined by sickness, and Judge MCKINLEY was not present.

For the Plaintiffs, NATHAN CLIFFORD, Attorney General of the United States, and B. F. HALLETT.

For the Defendants, DANIEL WEBSTER, JOHN WHIPPLE, and ALFRED BOSWORTH#.

It being arranged that the two causes should be argued together, Mr. Hallett opened for the Plaintiffs.

MAY IT PLEASE YOUR HONORS—

The first of these causes comes before this Court by writ of error to the Circuit Court of the United States for the District of Rhode Island, upon a judgment pro forma against the plaintiff in error.

The second is sent up from the same Court upon a certificate of division of opinion between the two Judges.

Both causes involve similar questions and principles, and therefore may with great propriety be argued together, the distinction between them being, that in the first the distinct issue raised is the validity of the People's Constitution, which the plaintiff claims was in force in Rhode Island; and in the second the question is definitely raised as to the force and validity of Martial Law, under which the defendants justify their acts of trespass.

If the new constitution, and laws under it, were in force in Rhode Island, and the old Charter Government rightfully superseded, thereby, then the justification of the defendants fails in both cases. If, on the other hand, that constitution was not in force, but the Charter Legislature was in fact the law-making power, yet, if they had not the power to declare Martial Law in the manner they did, or if the act itself, and the proceedings under it, were illegal or defective, or if the defendants have failed to show their authority as subordinates, then also the defence in both cases, but especially in the latter, fails.

The first is an action for trespass to the property of the plaintiff, Martin Luther; the second is an action for trespass to the person of the plaintiff, Rachael Luther.

The facts which appear upon the record, and are to be taken as fully proved, are these:—

In June, 1842, Martin Luther was living in the town of Warren, in the State of Rhode Island, in his own house, (which was also occupied by his mother, Rachael Luther,) and had lived there for nearly forty years. On the 29th of June, in the night time, the defendants, Luther M. Borden, Stephen Johnson, William L. Brown, John H. Munroe, William B. Snell, James Gardner, and John Kelly, are charged with breaking into the plaintiff's

They are also charged, in the second suit, with a personal trespass upon the plaintiff, Mrs. Luther, an elderly lady of some eighty years of age, by forcibly, in the night time, breaking into her chamber, in which she was sleeping with her maid servant, driving them from their beds in their night clothes, and with bayonets pointed to the breast and body of the plaintiff and her servant, menacing and threatening to stab and kill them, if they did not disclose where Martin Luther was, and detaining them in their night dress, and not permitting them to dress for more than an hour, to their great terror and alarm.

These trespasses are obviously of a highly aggravated character; a midnight invasion of the rights of domicile, and an outrage upon personal security, under circumstances that would call for the highest exemplary damages. The parties in both suits, by these violent proceedings of armed men against them, were compelled to leave the State, in which they could find no protection from law, and became citizens of the State of Massachusetts. It was vain for them to have sought redress in the State Courts of Rhode Island. Hence this was precisely the case for a resort to the Courts of the United States, contemplated by the framers of the Constitution, in order to lift the questions that might arise between citizens of different States above the partial influences of the local tribunals. And therefore this Court has decided, in the United States vs. Judge Peters, [2 Cond. Rep., 202,] and in numerous other cases, that "it remains the duty of the Courts of the United States to decide all cases brought before them by citizens of one State against citizens of different States, where a state is not necessarily a defendant. And again this Court say [in Elliot vs. Piersol, 1 Pet., 340,] that where a Court has jurisdiction, it has the right to decide every question which occurs in the case." "And in a case so brought to this Court on error to the Circuit Court below, this Court will consider the whole case, and will decide on the facts appearing upon the record." [Sergeant's Con. Law, 43; 3 Cranch, 174; 9 Wheaton, 733.]

It is under this constitutional rule of its jurisdiction and its duties, that the plaintiffs in the two causes now in hearing ask the interposition and the interpretation of this Court of the last and the highest appeal in matter of law.

They became citizens of Massachusetts, and as such commenced suits against the defendents in the Circuit Court for the District of Rhode Island.

Thus was the history of persecution between Massachusetts and Rhode Island reversed. Two hundred years before, Roger Williams had fled from Massachusetts to find protection against the persecution of Church Law; and now Rhode Island drove her citizens back to Massachusetts, to seek redress for outrages committed under the guise of Martial Law.

In the Circuit Court below, the defendants set up a plea in justification. They admitted hat they had committed the trespasses complained of, doing no more damage than they affirm was necessary; but they say they were justified in law, because they were enrolled in a company of infantry, in the town of Warren, under the command of John T. Child, duly appointed and legally qualified to act in that capacity; and that, by order of said military commander, they broke and entered the said dwelling house of the plaintiff in error, in order to arrest and take the said plaintiff, which they aver it was lawful for them to do.

And further the defendants say, that at the time of the alleged trespass, large numbers of men assembled in arms in different parts of said State, made and levied war upon said State, and were attempting the overthrow of the government of said State by military force. That the Legislature of said State, duly and legally chosen and constituted, according to the provisions of the charterer fundamental law, and the ancient and long established usages of said state, and in the exercise of the legislative powers conferred on them by said charter and usages, did enact and establish Martial Law over said State; and that under such authority, and by order of a military commander duly appointed by such authority, the defendants committed the alleged trespass.

To the several pleas of the defendants the plaintiff replied de sua injuria, thus denying the truth of the defendants' plea, which issue was joined, and upon this issue came up the question of the validity of the Charter Government, and the acts thereof, under which the defendants justified, and of the new constitution and frame of government adopted by the people of Rhode Island, called the People's Constitution, and the acts and doings of the Legislature under the same.

Thus far the pleadings in both cases are alike; but at this point, with the permission of the Court, I shall leave for future consideration the subject of Martial Law, and proceed to the argument, upon the record in the case of Martin Luther.

In reply to the justification which the defendants set up, under the authority of the Charter Governor and Legislature, the plaintiff contended that the old charter form of government, and the acts of the Legislature under which the defendants justified, were, at the time of such trespass, superseded and abolished by a new form of government, and invalid so far as repugnant to the same; which new form of government was then in force as to the funda-

The question, therefore, was directly between two forms of government, both claiming to be in force at the same time; and upon the construction of law, as to which of these forms of government was in legal existence at the time, depended the issue, whether the defendant had acted under law, or against all law.

Both parties agreed that up to May, 1842, the old charter government of Rhode Island was rightfully in existence, but the plaintiff maintained that it was then superseded by the new government then organized under the People's Constitution, which had been adopted Jan. 12, 1842, to take full effect in the following May.

It followed that if the charter government then ceased, neither the Martial Law, under which the defendants justify the attempt to break into his house and seize Mr. Luther, nor the military commission and the military orders of their commander, were of any avail.

Plainly, then, the rights of the parties in this cause can only be decided by deciding that issue distinctly and directly; and in the judgment of the plaintiffs' counsel, and I may add of the learned Judge since deceased, who framed the instructions upon the record, that issue was intended to be brought, and is brought before this Court in such form that it must be met, and must be passed upon in the indispensable exercise of the ordinary judicial function of this high tribunal.

I do not say this, may it please your honors, as if there were or could be any doubt that this is the issue here, or that this elevated tribunal will meet it as decidedly and calmly as if it involved the simple question of title to a piece of land, instead of the people's title to their great right of self-government.

But I am not without apprehension that the very eminent counsel employed on the other side will aim to get round the issue, rather than to meet it, and will labor rather to withdraw the cause from your honors than to permit it to be decided on its merits.

They cannot "and will not deny the jurisdiction over the whole cause, but their brief clearly indicates that they intend to treat it as a political and not a judicial question, and therefore, though within the jurisdiction, nevertheless not within the rule of decision.

I apprehend, however, that it will be found impracticable to evade the true issue raised upon the record in that form, and that no ingenuity of counsel can satisfy this Court or the common mind, that if the pretended Legislature that enacted Martial Law, and the pretended military officers who held commissions and acted under it, were in fact and law no Legislature and no officers, there can be any possible justification of breaking into the plaintiff's house, under an utterly void authority.

And I trust, with respectful deference, that however reluctant this Court may be to decide incidentally between the validity of the two governments in Rhode Island, both claiming to be the true one, that nevertheless they will hold, as was held by Chief Justice Marshall, in the much more delicate and exciting case of the imprisoned missionaries, in Worcester vs. the State of Georgia, that the law "imposes on this Court the duty of exercising jurisdiction. in this case, and this duty, however unpleasant, cannot be avoided,"

And to the same point, in Owen vs. Hall, [9 Peters, 607,] this Court say "the Supreme Court of the United States is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the States."

What was the jurisprudence of Rhode Island to govern this case, is the precise question, and no matter whether it be a statute law or a fundamental law. "The Supreme Court may decide all cases between individuals, citizens of different States, and these cases in some form or other involve every kind of State power and sovereignty." [9th Dane's Ab. Appendix, 52.]

Strange then would it be, if this Court can construe State constitutions, as in the case of Groves vs. Slaughter, [15 Peters, 450,] and the like, and cannot inquire whether they exist, have been changed, or are in force as the supreme law for the time covered by the matter in issue to be determined.

This would be to allow conclusions to be drawn, but to deny the power of the Court to inquire whether the premises exist.

The issue here is, what was the subsisting form of government in Rhode Island, to cover the trespass.

Such being the issue, there must be some way of proving which form of government, (when under both conflicting laws are passed,) was in force at the time; in other words, to show what is the law to govern the case.

Ordinarily the Court will take notice, judicially, of the constitution and laws of a State. But this is only where their existence is not denied, and their repeal or nullity is not affirmed.

When this is disputed, it must be determined like any other issue of law and fact. In every case of the adoption of a new constitution by a State, which is constantly occurring,

The plaintiff, therefore, in this cause, proceeded to prove that the justification of the defendants under the old government was unavailing, because that government was superseded by a new constitution and an Executive and Legislature chosen under it.

Possibly he may have offered to prove more than was absolutely necessary; but the question is, was what he offered to prove sufficient to establish the legal fact of the superseding of the old by the new frame of government in Rhode Island.

It all depends on this, because there is and can be no controversy, that if in fact the people's Constitution was the law of Rhode Island in June, 1849, the defendants totally fail in their justification.

To prove that it was in force, the plaintiff proceeded to put in evidence before the Court below, all the preliminary steps which led to the adoption of the People's Constitution and its adoption the 12th of January, 1842, by an actual majority of all the white male adult inhabitants of Rhode Island, then living in the State, and also by a majority of the whole number of the resident legal voters or landholders, who held the right to vote under the charter government. He also showed that there was no existing provision in the then existing frame of government in Rhode Island for calling a Convention to make a constitution, or for amending the frame of government. In short, the proof went to establish the fact that every form usual or proper to be observed, or that ever had been observed, in framing a constitution in a State of this Union, by a clear majority of the people and of the legal voters, had been observed, in all respects, with the single exception that the old Legislature of Rhode Island, which was chosen by a minority of landholders, who refused to extend suffrage to any person but a landholder, would not and did not pass an act requesting or permitting the people to elect delegates to a Convention to make a constitution; and refused, after the constitution was adopted, and a new government established under it, to surrender the old government to the new organization, but held out against it, and by the promised aid of all the military and naval forces of the United States, at the command of President Tyler, finally succeeded in putting down the new government by force, or rather prevented the Legislature reassembling, and successfully resisted the execution of its laws.

Upon this state of facts, the counsel for the plaintiff requested the Circuit Court for Rhode Island (composed of Judges Story and Pitman,) to instruct the jury "that the constitution and frame of government so adopted and established was and thereby became the supreme law of the State of Rhode Island, and was in full force and effect as such, when the trespass was committed by the defendants. 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 the evidence, (and especially in the absence of any provision for amending, altering, reforming, or changing the old 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 the pre-existing charter government, and the authority and assumed laws, under which that defendants claimed to have acted, became null and void, and were no justification of the trespass committed by the defendants."

This was the plaintiffs' reply to the excuse set up by the defendants, and if admitted by the Court, it left them without justification.

On the other hand, the defendants offered to prove the existence of the charter government from 1663, when granted by Charles the Second; its modification by acts of the Legislature after the American Revolution; and its continuance, notwithstanding the acts of the people in framing a written constitution, as before set forth. They also offered to show that the Charter Assembly, on the 25th of June, 1842, passed an act establishing Martial Law as follows :—

"Be it enacted, &c. 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."

They also offered to prove that the defendants, being members of a military company in the town of Warren, under the command of John T. Child, were ordered by him to arrest the plaintiff, Martin Luther, who was supposed to be concealed in his dwelling house, and in pursuance of that order, they broke into the house and searched the same.

The question of justification under the pleadings was the issue that was made up between the parties. There was no trial by jury, and no argument on either side, (in the case of Martin Luther,) but upon the suggestion of the late Mr. Justice Story, it was resolved into

The instructions were so given and refused, in order that the questions involved in the cause might be originally presented in full bench here, with no one of the Justices having previously adjudicated upon them; and this issue is now here, in the nature of an appeal upon the matters of fact and law set forth in the record, the facts offered to be proved by the plaintiffs being taken and admitted, in this hearing, as fully proved.

Thus, may it please your honors, in its ordinary aspect, this cause is merely an action of trespass in common form between citizens of two different States brought in the Circuit Court for Rhode Island, and rightfully before this Court by writ of error. The parties being citizens of different States upon the record, the jurisdiction cannot be questioned under the constitutional powers of this Court.

Upon this statement of the issue, therefore, we contend that it will become indispensable (as it seems to us,) for this Court, in order to determine this ease, to decide, incidentally to the merits, whether the People's Constitution was in force in Rhode Island as the fundamental law of the State; and hence the importance of this cause, as presenting, in fact, a judicial test, before the highest tribunal in the land, whether the theory of American free government for the States of this Union is available to the people in practice; in short, whether the basis of popular sovereignty is a living principle, or a theory, always restrained in practice by the will of the lawmaking power, and therefore subject and not sovereign.

In this view of the aspect of this cause, it becomes necessary to go back to fundamental principles, to determine which was the existing form of government, which was the Legislature, and what were the laws in force at the time of the trespass. This is apparent from the fact that by the pleadings the defendants admit they have committed a trespass, but justify their acts under the authority derived from the Charter Assembly and the commissions and orders of military commanders, deriving their sole power from that source.

Now, in May, 1842, a Legislature, chosen by the people, under the People's Constitution, were in actual session, enacting laws with all the forms of a constitutional government, and after transacting the business, they had adjourned, to meet again in July.

In June, 1842, the body calling itself the General Assembly of Rhode Island, chosen, as we contend, unlawfully, after the adoption of the People's Constitution, and after the election of general officers and members of the Legislature under that constitution, held a session, as if it were still the law-making power of the State; and on the 25th of June enacted Martial Law; and on the same day commissioned John T. Child as a military officer— by whose order to break into the plaintiff's house, the defendants justify that act.

Here are two conflicting powers that could not lawfully co-exist, and either the People's Constitution and government, and the Legislature chosen under it, were all unlawful, and in fact violence against the old government, or if the people had any right to make a constitution, without the consent of the Landholder's Legislature, then the charter government was superseded, and Martial Law and the commission of John T. Child were null; and in fact the whole authority under which the defendants justify was insurrectionary void, and constitutes no excuse for a violation of the right of the plaintiff to be protected in his property and person against seizures and searches, except under warrant issued by a lawful magistrate.

Here, then, are two bodies of men, both claiming to have been, at the same tune, the law-making power of a State. An act passed by one of them is repealed by the other, and this act is called in question in a suit in the Courts of the United States; citizens of that State and a citizen of another State.

This is precisely the issue over which the Constitution gives jurisdiction to the Courts of the United States, to wit: in all "controversies between citizens of different States."

How can it be tried, except by trying the validity of the assumed law and authority which the defendants set up as their justification, and which the plaintiff denies?

How can that validity be tried, without tracing back the law to the assumed law-making power, and that power to the source from whence it derived its authority? In short, it cannot be decided which law was valid, without finding, first, who made the alleged law, and second, whether it was a lawful subsisting Legislature.

The plaintiff sues for a trespass.

The defendants, admitting the trespass, justify under certain acts of the Charter Assembly of Rhode Island, and the commissions and orders of military commanders, deriving their powers from that source. The plaintiff avers that this power and these acts were supersed-

This is the general scope of the inquiry in the argument, but it is after all only determining what is the law to govern this particular case. The plaintiff has suffered injury, for which the law gives redress. The defendants admit the damage, but deny the injury, on the ground that the common law, under which he claims redress, was set aside, in this particular case, by other and paramount authority.

We deny his intervening law or authority, and the matter resolves itself into the construction of the law upon the facts presented on both sides. Which was and which was not the law? And however general and broad may be the principles, and whether a conflict as to the fundamental law or a statute law, the case is exclusively one between citizens of two States, to be settled by the laws of the State in which the action was brought, in deciding which this Court incidentally is to say what were the laws of that State governing this case, and who had the power of making the law, and giving the license claimed by the defendants.

I have been thus particular in stating the issue, and the points of decision it involves, because in the defendants' abstract of the case it is assumed, and will doubtless be argued, "that the Courts of the United States can recognize no other government in the States of this Union, except the one represented in and recognized by the Congress of the United States; and hence it is to be inferred that this Court can only recognize the old charter government of Rhode Island.

If this proposition of the defendants can have any meaning, it must be intended that the judicial power, in its decisions, must follow the political power; a maxim which no lawyer will deny.

But this maxim of public law relates only to the functions of the general government in its intercourse with foreign governments, and in the exercise of the treaty-making power, by the forms of recognition of independent States, and the establishment of boundaries and diplomatic relations.

Numerous and uniform decisions of this Court (which will hereafter be cited,) settle this point.

It is without precedent and without meaning, if attempted to be applied to the relations of a State to the Federal Government, under the Constitution.

The Executive power can neither recognize nor repudiate, can neither make nor unmake a State of this Union. The President cannot enforce the laws of a State, nor determine what are or what are not the laws of such State. He can only execute the laws of the United States, within the several States.

And in respect to the relations of Congress to the sovereignty of a State, as a member of the Confederacy, it has but a single function to exercise, under the Constitution, namely, "new States may be admitted by Congress into this Union."

When a State is in the Union, as were the original States that framed the Constitution, or is admitted by Congress, the whole political power is exhausted.

There is the State and there it remains, with no power in Congress to exclude it from the Union or to question its existence as a State, and with no authority to pass upon its form of government, or to approve or condemn any changes of that frame of government, which may be altered at will, in the exercise of the power of inherent sovereignty, in determining what shall be the local institutions and the organic law of such State; provided that they are not repugnant to the Constitution of the United States. And even that is to be determined, not by the political power of Congress, but by the judicial power of the Supreme Court, whenever the question of repugnancy arises in a case for its decision.

The State, therefore, once a State, is always a State, whatever may be its changes in the frame of government, provided the form of government be republican. This is the only possible limitation. "The United States shall guarantee to each State in this Union a republican form of government."

But even this, it has been argued, is an unoccupied power, because Congress has prescribed no form of law under which and by whom it is to be exercised. It may well be considered as a power which executes itself, but whether it be so or not, it is conclusive for the purposes of this case, to show that the change of the government of a State is no change of he State, in its federal relations.

When this objection touching the power of guarantee was urged against the adoption of the constitution by its opponents, as sanctioning an interference by Congress with State rights, n respect to their local institutions and organic forms, Mr. Hamilton said, in the 21st No. of he Federalist:—

"The inordinate pride of State importance has suggested to some minds an objection to the principle of a guarantee in the Federal Government, as involving an officious interfer-

To the same point, Mr, Madison, in No. 43 of the Federalist, says (p. 75);—

"The authority extends no farther than to a guarantee of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the Federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guarantee for the latter."

How, then, is Congress to "recognize the existence of a government in the States of this Union," which the defendants lay down with seeming gravity, as if it were a proposition to be argued:?

The only test they propose of such recognition is "the government represented in the Congress of the United States."

The answer is, that the State, and not the government merely, (that is, the old or new frame of government) is represented in Congress. That body can judge of the election and return of its members, as if there were two sets of members chosen, it might determine under which form they were legally elected. But this would determine nothing judicially. If it did, the House might admit under one authority, and the Senate under another, and thus there would be two governments in the same State, recognized by Congress (as far as the two Houses can act at all,) at the same time!

Another and manifest absurdity is involved in this crude proposition of the defendants. If the people of a State had changed their constitution and frame of government, just after the election of Senators and Representatives, that constitution could not take effect, until two or six years after its adoption, when new members should be chosen under it, and be recognised by Congress. Hence, if there be anything in the defendants' proposition, the Supreme Court of the United States could not recognize the existence of the new government, and the laws under it, until members of Congress had been returned and admitted!

Upon this theory, New York is in part now out of the Union, by the change of her government in 1846, and Rhode Island has scarcely got into it, and for a season at least was an alien, until her Senators and Representatives were all chosen under her existing constitution of 1843, and admitted to their seats.

I then submit the preliminary proposition, that upon the pleadings and the record of this case, the Court cannot determine the issue, whether a trespass was or was not committed, without first deciding what were the constitution and frame of government in force in Rhode Island at the time.

And with this view, and under the permission of the Court, I shall proceed to open this cause upon the broad basis of this argument, in its full force and extent, covering the whole ground of rightful changes of government by the people of the States of this Union.

These preliminary suggestions embrace within the issue three general propositions.

1. That the assumed authority, legislative and military, and the acts and orders under which defendants justify, are invalid and insufficient.

2. That the issue was properly before the Court below, and it is necessary for this Court to pass upon it, in order to determine the rights of the parties on the record in this cause.

8. That it is a judicial power, and not a political power, which the Court is called upon to exercise in applying the rule of decision that is to govern this case.

The burden of proof is on the defendants to show their justification, but the plaintiff, doubtless, must show, at least, so far as to sec aside the authority of the defendant's plea, that the new government had superseded the old form.

I propose, therefore, to maintain, in the argument, the following points, which were ruled against the plaintiff, merely formally, in the Court below.

1. That the People's Constitution was in force in Rhode Island in June, 1842.

2. That the Legislature chosen under it was the law-making power.

3. That consequently, the pre-existing Charter Government was superseded; and

4. That the plaintiff need show such change of government only so far as the justification the defendants set up, under the first, is concerned.

In order to sustain these propositions, we must first establish the great basis upon which alone they can rest in the American system of government, viz.:

1.That the majority of the people, or of the legal voters of a State, have a right to establish a written constitution.

3. That this right is independent of the will or sanction of the Legislature, and can be exercised by the right of eminent sovereignty in the people, without the form of a precedent statute law.

In maintaining these positions, I shall not assume to rely upon my own opinions, for it would manifestly be presumptuous to attempt to establish before this tribunal any fundamental theory of government sustained only by the opinions of counsel. This is, of all causes, not one to be carried on either side by eloquence or assertion. It is, pre-eminently, a ease for argument, authority, and constitutional construction.

To present this important cause before your honors, divested of the false impressions that may have been attached to it, I beg permission, at some length, to go into the history of the origin, causes, and details, of the first adoption of a written constitution by the people of Rhode Island, in 1842.

I deem this course essential to a just appreciation of the merits of the cause of popular sovereignty in Rhode Island, and of the men who took the lead in it, with equal right, and with more wrongs, than our revolutionary fathers had to justify and impel them in their work of abolishing old and establishing new forms of government.

I know that this has been slurred as the "Dorr rebellion," and held up to moral condemnation as a mere riotous attempt of lawless men to seize upon and plunder the public property, and to overturn the government by force, without the forms of law.

Hence the opponents of this cause have usurped the title of the party of "law and order," and have proclaimed Governor Dorr, and the Executive and Legislative government chosen by the people, as rebels and insurrectionists.

In this presence, the crimination or recrimination of parties or partizans finds no place. To the extent of my ability, therefore, I shall seek to present the issues alone that belong to the argument. I shall censure or asperse no man or set of men, and I only ask in return, that on the other side the same rule may be observed by one of the distinguished counsel for the defendants, whose local feelings, if indulged, may here as elsewhere, impel him in the argument, to sink the dignity of the advocate in the personal resentments of the individual.

Turning, then, to the record of this case, I will first consider—

What all the plaintiff offer to prove, in order to establish a change of government in Rhode Island, and what is the legal effect of that proof?

The case which makes this inquiry indispensable to the issue, stands thus:—

The plaintiff alleges a civil injury, which is admitted, but the defendants justify, as military men, under the orders of a military commander. Their authority must be traced to a legitimate source or power, or it fails to justify. The plaintiff contends that there was no authority for such military process, and this goes back to the fact as to the validity of the statute law and the fundamental law, upon which both parties claim to stand.

The defendants justify specially, and so far take the burden of proof.

To do this, they allege that the Executive, Legislative, and Military power of the State was at that time in a certain body of men then acting under the charter, laws, and usages of the State.

We deny this, and say it was in another body of men, acting under a written constitution, which had become the supreme law of the State, and superseded the old forms.

It is not the question, what was the State of Rhode Island. The State is permanent, unchangeable. The constitution is the form of government, and may be changed in form, as well as a statute, if rightfully done.

But who were the men acting under forms of law, clothed with the power to make and enforce laws, and what was the law at the time of the admitted trespass, and the authority that alone could justify defendants' acts?

They say there had been no change of the organic law of the State, and that the same forms of organization existed at the time of the trespass, after as well as before the adoption of the People's Constitution.

We offer, then, to show, not a revolution by force, but a peaceful change of the organic law, and the exercise of government under it, as valid and effective as the change of a mere statute law, or the whole body of a code of laws, by a Legislature.

Now how do we show it?

By the peaceful forms of Conventions of the people, and by the votes of a majority of the male adult people and of the legal voters of the whole State, but without any statute law authorizing the meetings and prescribing the mode of voting.

The defendants' counsel will contend that this last deficiency in the process renders the whole void; and on this single point, I apprehend, must rest the whole strength of their argument.

To test it thoroughly, it is necessary to investigate the history of government in Rhode

This will embrace three branches of what may be designated as the historical part of the argument, viz.: 1st, the history of government before the Revolution; 2d, the changes after the Revolution; and 3d, the proceedings of the people in framing and adopting the first written constitution in 1842.

Government before the Revolution.

This was colonial, and was derived from grants by the King or Parliament by Great Britain,

The first charter of 1643 was granted under authority of the Parliament of England, empowering Robert, Earl of Warwick, and Commissioners associated with him, to govern the islands and Plantations upon the coast of America, by virtue of which the Earl of Warwick and his associates granted unto the English inhabitants of the towns of Providence, Portsmouth, and Newport, a free charter of civil incorporation and government, that they may order and govern their plantations in such manner as to maintain justice and peace among themselves and towards all men with whom they shall have to do.

And in this grant the said Earl of Warwick, as Lord High Admiral, &c., gives to the aforesaid inhabitants a free and absolute charter of civil incorporation by the name of the incorporation of Providence Plantations, together with full power and authority to govern and rule themselves, and such others as shall hereafter inhabit any part of said tract of land, by such a form of civil government as by a voluntary consent of all or the greatest part of them, shall be found most serviceable in their estates and condition, and to that end to make and ordain such laws and constitutions as they, or the greatest part of them, shall by free consent agree unto— conformable to the laws of England so far as the nature and constitution of the place, will admit, reserving the final controlling power to the grantors. [See Charters of Rhode Island, and Leg. Doc., p. 3.]

This gave the power to a majority of inhabitants to frame constitutions, and established "a rule of the people." [Address of People's Convention, p. 37, in 1834.]

In March, 1655, Oliver Cromwell, by letter to the president, assistants and inhabitants of Rhode Island, together with the rest of the Providence Plantations, directed them to proceed in their government according to the tenor of their charter. [Ibid. p. 5.]

In 1660, on the restoration of Charles the Second, John Clark, late inhabitant of Rhode Island, then residing in Westminster, was appointed, by the principal Court of the colony, their agent, to secure a continuance of their just rights and privileges. [Ibid. p. 7.]

He obtained the charter of 1663 from Charles the Second, for "the purchasers and free inhabitants of Rhode Island, and the rest of the colony of Providence Plantations." This is the charter which the defendants set up.

It secured religious freedom to the people and inhabitants of the colony— that no person within the colony should be molested for any differences in opinion in matters of religion.

It ordained that William Brenton and others, and all "such others as now are or hereafter shall be admitted and made free of the Company and Society of the said colony, shall be a body corporate and politic."

That for the managing of the affairs of said company, there should be a Governor, Deputy Governor, and ten Assistants, to be elected out of the freemen of said company; and twice a year, or oftener if requisite, the Assistants, and such of the freemen of the company, viz. six for Newport, four for Providence and Warwick, each, and two for each other town or place, elected or deputed by the major part of the freemen of each town, were to meet at Newport, to advise and determine about the affairs of the company.

With power to choose and appoint so many other persons as they shall see fit, and shall be willing to accept the same, to be free of the company, and to elect such officers and make such laws, statutes, forms and ceremonies of government, as seem meet for the government of the lands and of the people that do or shall inhabit or be within the same, provided such laws and constitutions be not repugnant, but as near as may be agreeable, to the laws of England, considering the nature and constitution of the people there, and to regulate the manner of all elections to office. It also secured to every subject of England within the colony, or who should go there to inhabit, and their children born there, or on the sea, all liberties and immunities of free and natural subjects within any of the King's dominions, to all intents and purposes.

At this time there were about 2500 inhabitants. [2 Bancroft's Hist., p. 64.]

The charter was held up to all the people at Newport, and approved by them.

I have cited the substance of these two charters, in order to show that there was no exclusion in either of them of the political rights of the inhabitants. The first expressly gave the power to "a majority of inhabitants to frame constitutions," and was declared to be "a rule of the people," and not of the landholders.

The corporation was also empowered to make laws and constitutions for the government of the people, provided they were not repugnant to the laws of England. And upon this vision, it is only necessary to say, in passing, that the power, whatever it was, existed so long as the corporation existed, under its grantor. Upon that relation ceasing, as it did by the Revolution, and the disclaimer of allegiance to England, a new source of power came in. A corporation never could subsist after the extinction of its grantor, unless it became independent, and then it must have a new source of power within or without itself.

To affirm that the power in the charter to make laws or constitutions conferred a power over the people, which remained after the Revolution, would be to affirm the self-existence a corporation without a grantor, and a republican government without a people.

But there is one provision in that charter which affirms the equal rights of every inhabitant, viz.: that every subject of England, in the colony, or who should go there to inhabit, and their children, should enjoy "all liberties and immunities, to all intents and purposes, of free subjects, within any of the King's dominions."

Hence, if any power given by the charter was inherited therefrom by the landholders of Rhode Island, as some pretend, the people also inherited under it all liberties and immunities belonging to the whole community, as "the free inhabitants of Rhode Island,"

The whole of the difficulties in Rhode Island between the landholders and the people grown out of the restrictions by the former upon the political rights of the latter. In this respect there was a constantly increasing usurpation.

The limitations of suffrage were all, in fact, departures from and violations of the spirit of the charters.

At first the whole people assembled, in mass, at Newport, and enacted laws. It was democracy without representation. In 1663, the voters who could not attend in person gave their votes for general officers in town meeting, and those votes, called proxies, were sent to the assembly to be counted. This is the origin of the term prox being used in Rhode Island to designate the ticket which contains the names of the candidates. In 1760 all voters were compelled to give their votes in their respective towns.

In 1663-4, we find the first limitation of suffrage, and with it a monstrous outrage upon charter, and upon the distinguishing principle of ROGER WILLIAMS, the founder of religious freedom.

In that year, the Assembly expressly excluded all Roman Catholics from the exercise of political rights.

Some doubt has been raised as to the precise date of this enactment, whether in 1663 or 1719, but it appears in the first published revision of the laws, in 1730. Chalmers, clerk in the Plantation Office, in England, who had access to the original documents, affirm it to be of the date of 1664.

Mr. Eddy, the late learned Secretary of State, examined the colonial records, and doubted the existence of this act till 1719. He also suggested the possibility of an interpolation could find no evidence to support it. All that can be urged, in palliation, may be found in Knowles's Life of Roger Williams, p. 321. [See also Address ot the People's Convention, 1834, p. 42, and R. I. Charters and Leg. Documents, p. 23.]

The evidence I hold in my hand is conclusive as to the bigotry of the Assembly under the charter. It is a copy of two acts, certified by Mr. Henry Bowen, Secretary of State. The first is a copy of an act, first published in the first edition of Colony Laws, in 1730 titled "An act for declaring the rights and privileges of His Majesty's subjects within this colony, passed by the General Assembly, holden at Newport, on the first day March, 1663."

The second section provides—

"That all rights and privileges, granted to this colony by His Majesty's charter, be entirely kept and preserved to all His Majesty's subjects residing in or belonging to the same— and that all men professing Christianity, and of competent estates, and of civil conversations, who acknowledge and are obedient to the civil magistrate, though of different judgments in religious affairs, (ROMAN CAtholics Only Excepted,) shall be admitted freemen, and shall have liberty to choose and be chosen officers in the colony, both military and civil."

This disqualification was not removed until the 24th day of February, 1783, seven years after the Revolution.

It was then enacted—

"That all the rights and privileges of the Protestant citizens of this State, as declared in and by an act passed the first day of March, A. D, one thousand six hundred and sixty-three, (1663) be and the same are hereby extended to Roman Catholic citizens; and that they, be-

This last recited act of repeal affirms beyond all doubt the existence and the date of the preceding act, and thus we have the fact, that in the face of the first principle of her charter and her founder, the Assembly of Rhode Island utterly disfranchised citizens on account their religious belief, and this act remained openly published in her statute books from 1730 to 1783, a period of fifty-three years.

With this starting point in the disregard of religious freedom by tho Rhode Island Assembly, we shall be less surprised at the subsequent violations of the civil rights secured in the charter, by the usurpations and encroachments of the same body, from 1663 down to 1842 when they passed what has been called the "Algerine act," under which Martin Luther, the plaintiff in this cause, was actually imprisoned six months, and compelled to pay a fine of five hundred dollars, for the crime of peacefully presiding as Moderator in a town meeting in Warren, under the People's Constitution!

[Mr. BOSWORTH— He was imprisoned but not fined!]

Mr. HALLETT— The learned counsel is mistaken. That act, which I deny ever was law, imposed both penalties without mitigation, and the Supreme Court of Rhode Island sentenced Mr. Luther to both. He suffered the imprisonment, and the friends of freedom in Rhode Island and other States raised the fine by subscription, in which no man, I believe, was allowed to give over ten cents, and that money has gone into the Treasury of Rhode Island

Thus early began the restriction of civil and religious rights. In 1665 the Quakers were laid under certain disabilities.

In the same year, 1665, the qualifications for voters were all men of competent estates a civil conversation.

In 1666, "freemen of the towns as should be by the towns judged deserving." This was another early departure from the charter, which gave the power of admission to the company and not to the towns.

In December, 1686, Sir Edmund Andross, agreeably to his order from King James, dissolved the government and assumed the administration. The revolution of 1688 put an end to his power, and the colony, not without interruptions, resumed its charter. [See 1 Elliot's Debates, Ed. of 1836, p. 23; History of Colonial Government.]

Not until after this did the Assembly impose a landed qualification.

In 1723, the first land qualification was enacted, viz.: freeholders of lands of 100 pounds value, or 40 shillings rent, or the oldest son of such freeholder. In 1729, raised to 200 pounds and 10 pounds per annum. In 1742, an act was passed to increase the restrictions, and little did the Assembly know of their own charter, that in the preamble to this act they actually recite, in justification, a "whereas that it is provided in the charter that none shall be mined freemen but such as are of competent estates," &c., when, in fact, there is no such provision, nor anything like it, in the charter! [See Leg. Doc., p. 28.]

In 1746, the land qualification was increased to 400 pounds, or a rent of 20 pounds, candidate to stand propounded in open town meeting three months.

In 1762, the value of the land required was reduced to 40 pounds and a rent of 40 shilling and in 1798, it was fixed at 134 dollars, clear of all incumbrances, and a land rent of 7 dollars, and in this form it remained until the adoption of the People's Constitution, in 1842.

This review brings us up to the period of the Revolution, in 1776. That movement was the act of the whole people.

And here I can, with pleasure, present a pre-eminent claim on the part of Rhode Island over all the colonies, to the first authentic act dissolving all allegiance to Great Britain.

May 4th, 1776, the Assembly passed an act repealing an act for the more effectually securing to His Majesty the allegiance of his subjects, and altering the forms of commissions all writs and processes in Court, and of the oath prescribed by law. [Charters and Leg. Doc., p. 31.]

In May, 1776, the arms of the State first appeared on the Schedules, and concluded with God Save the United Colonies.

This was a bold act for that little colony, for at one blow it abolished the charter and with all fealty to the Crown.

Where did the Assembly, the creature of that charter, get the power to set up political organization for themselves but from the people, and by the same right of popular sovereignty which was exercised by the people when they adopted their constitution in 1842?

Rhode Island preceded Virginia in this act of independence by twelve days. Virginia pro-

August 26, 1775, the deputies, in General Convention, declared that a causeless, hasty dissolution of the Assembly, by Lord Dunmore, drew the representative body to the unhappy dilemma of either sacrificing the most essential interests of their constituents, or of meeting in General Convention to assert and preserve them. In March, 1775, the delegates of the people met in full Convention, the most numerous assembly that had ever been known in the colony, and made provision for the general safety. Subsequently the Governor called the assembly together, but refused to act with them, and they adjourned, and then met in Convention as private citizens And they say— "to preserve the peace and good order of the community, we are driven to the very disagreeable necessity of supplying the present want of government, by appointing proper guardians of the rights and liberties of our country. But lest our views and designs should be misrepresented, we again publicly and solemnly desire before God and the world, that we do bear faith and true allegiance to His Majesty George the Third, and that we will defend him and his government, as founded on the laws and well-known principles of the Constitution." But, they add, we are determined to maintain our just rights and privileges at every even at the extremest hazard. [See Journal of Convention, Richmond Ed., 1816, p. 17.]

This declaration did not disclaim but affirmed allegiance to the Crown. May 15, 1776, the Convention, acting as delegates, deputed by the several counties and corporations in the colony and dominion of Virginia to represent them in General Convention, "Resolved unanimously, That a committee be appointed to prepare a Declaration of Rights, and such a plan of government as will be most likely to maintain peace and order in the colony, and secure substantial and equal liberty to the people."

This was the first authentic act of the people of Virginia throwing off allegiance to the mother Country. Edmund Randolph, Patrick Henry, Madison, George Mason, and others, were that committee. They reported the celebrated Declaration of Rights, which has formed the basis of nearly every similar declaration since adopted by the Colonies and States, and therein laid the great cornerstone of freedom, upon which the Declaration of Independence the United States and the government of every State in this Union is founded, viz.:—

"THAT A MAJORITY OF THE COMMUNITY HATH AN INDUBITABLE, UNALIENABLE, AND INDEFEASIBLE RIGHT TO REFORM, ALTER, OR ABOLISH GOVERNMENT, IN SUCH MANNER AS BY ALL BE JUDGED MOST CONDUCIVE TO THE COMMON WEAL."

This report was made in the Convention, May 27, 1776, and was debated until June 12th, when it was fully adopted.

June 24th, the same committee reported "a plan of government," or constitution, which was adopted June 29th, aud this was the first written constitution emanating from the people through their immediate representatives, which was ever adopted in the history of government, except, perhaps, the brief but emphatic written Declaration of Rights, that all should be governed by equal laws, which was signed in the harbor of Provincetown, on board the Mayflower, the eleventh of November, 1620.

For a full explanation of these acts, so honorable to Virginia as the pioneer in free government, founded on the collected will of the people alone, reference may be had to the Journal the Convention, before cited, pp. 27, 28, 17, 22, 42, 43, and 78. Also Burke's Hist, of Va. ___, 378, 382, 407, 415, 418, 421, and 429. See also Judge Tucker's opinion, in Kamper vs. Hawkins, 1 Virginia Cases, p. 71, and note. Burke's single volume, however, is but an imperfect chronicle of the great period of the Revolution, and, I am sorry to say, the history of Virginia still remains to be written.

The result of this historical parallel is, that Rhode Island was the first of the colonies that threw off allegiance, and Virginia the first to adopt a Declaration of Rights and a plan of popular government.

The subsequent history of government in Rhode Island will show how the glory of the first act of the assumption of the power of government in the name of the people has been tarnished by the pertinacious resistance of her minority Assembly, for more than sixty years, to a form of government that should be, in the language of her first charter, "a rule of the people."

The first to proclaim a government of the people, she has been the last of all the States in which the people have been able to establish their right to participate in government. And but for the righteous struggle, of those who framed and adopted the People's Constitution of 1842, Rhode Island now, if not forever, would have been in practice, but not in right, mere minority landholders' corporation.

Another and earlier act of her Assembly also condemns all her subsequent history. In June, 1774, the Assembly of Rhode Island passed resolutions, after the Boston port act, respecting the alarming condition of the colonies, in which they complain of the deplorable

They also declared that a firm and inviolable Union of all the colonies, in councils and measures, is absolutely necessary for the preservation of their rights and liberties, and recommended a Convention of Representatives from all the colonies. [Leg. Doc., p. 36.]

The first Congress assembled September, 1774. The General Assembly of Rhode Island appointed delegates in June, 1774; also in 1775, who voted for the Declaration of Independence.

July 18th, 1776, the General Assembly adopted the Declaration of Independence. [Page 39 of Leg. Doc.]

This comes next in order, in tracing the source of power in Rhode Island.

By that act, the sovereignty vested in the people, and the Legislature was divested of all power to define or limit it.

"The Declaration of Independence made a Colony a State in an instant," says Mr. Dane, in his Abridgment, vol. 9, app. 19. "A State changes its form of government when it changes its source of power and absolves its original allegiance."

Thus he says that New Jersey, Virginia, &c., in 1776, made a new constitution and a new organized government solely on American principles, and with a source of power exclusively American. And on p. 25— "The original sovereignty of a whole people must be noticed as the fountain of all delegated power."

Mr. Justice Story, in the 1st of his Commentaries on the Constitution, p. 199, says:—

"The Declaration of Independence has always been treated as an act of paramount and sovereign authority, complete and perfect per se, and ipso facto, making an entire dissolution of all political connexion with, and allegiance to, Great Britain, and this not merely as a practical fact, but in a legal and constitutional view of the matter by Courts of Justice." [See 2 Dallas, 470.]

Where, then, was the sovereignty,— the controlling power over the colony and people of Rhode Island, and over the Legislature?

All legislation up to that time was subject to the King and Parliament. Do the Rhode Island charter party claim as successors to the King? But there can be no succession to sovereignty in free institutions.

See C. J. Jay, in 2 Dull., p. 219. "At the Revolution the sovereignty devolved on the people, and they are truly the sovereigns of the country; but they are sovereigns without subjects, (unless the African slaves among us may be so called,) and have none to govern but themselves. The citizens of America are equal as fellow-citizens and as joint tenants in, the sovereignty."

After this what were the authentic acts of the people, or the nearest to it, establishing form of government?

Washington says: "The basis of our political systems is the right of the people to make and alter their constitutions of government. But the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."

From the Declaration of Independence, which annulled the old source of power, we pass to the next authentic act touching government in Rhode Island— the adoption of the Constitution of the United States.

This is remarkable, as the only action concerning government in a popular form, namely, by a Convention, which ever took place in Rhode Island from the date of the Revolution to the framing of the People's Constitution in 1842.

Rhode Island was the last of the thirteen States to come into the Union. In 1778, she joined the Confederation, but from that period her Assembly indicated want of patriotism and respect to law. The articles of Confederation could not be amended without the consent of all the States, and in a great crisis she interposed her veto against all the other States.

When the Confederation proved ineffective, she refused to send delegates to the Convention to amend it. All this recusancy, which brought down upon her the pungent rebukes of Madison, Morris, Randolph, Lee, Iredell, Pendleton, Gorham, and others of the statesmen and patriots of that day, including her own Varnum and Greene, was the work of her minority Landholders' Assembly, and not of the people.

They sacrificed every possible principle of honesty and sound government in upholding their paper money system. To enforce this as a legal tender, they abolished the trial by jury, and by a summary process, without appeal, despoiled men of their property, deprived them

This violation of all the obligations of contracts went on until the celebrated case of Trevett vs. Weeden, (cited in 1 Story's Comm., p. 469,) occurred in 1787, in which the defendant, a butcher, was arraigned before the Court, for not selling his meat for paper. James M. Varnum, an eminent lawyer, appeared in that cause, and assuming English liberties and common law rights as the unwritten constitution of Rhode Island, he prevailed on the Judges to pronounce the paper money law void. The Judges, for this act, were arraigned before the Assembly, who proceeded to rebuke and depose them; but the eloquence of Varnum in their defence, backed by the silent power of the non-voting people, terrifying the usurpers, and they dismissed the Judges from their bar. The English language has rarely been made to express higher eloquence than is found in the full report by himself of the argument of General Varnum, printed by John Carter, of Providence, in 1787.

In looking back to the early history of the government of Rhode Island under the charter, this and other incidents cannot fail to suggest the singular inappropriateness of the successors of that government, in the Charter Assembly, claiming, in their opposition to American liberties and the rights of the people, to be the party of "law and order."

The opinion which General Varnum held of the General Assembly of his own State is very emphatically expressed in his letter to General Washington, giving the reasons why Rhode Island refused to join the Convention and come into the Union:

"New Port, June 18th, 1787.

"Permit me, sir, to observe, that the measures of our present Legislature do not exhibit the real character of the State. They are equally reprobated and abhorred by gentlemen of the learned professions, by the whole mercantile body, and by most of the respectable farmers and mechanics. The majority of the administration is composed of a licentious number of men, destitute of education, and many of them void of principle. From anarchy and confusion they derive their temporary consequence; and this they endeavor to prolong by debauching the minds of the common people, whose attention is wholly directed to the abolition of debts, public and private. With these are associated the disaffected of every description, particularly those who were unfriendly during the war. Their paper money system, founded in oppression and fraud, they are determined to support at every hazard ; and rather than relinquish their favorite pursuit, they trample upon the most sacred obligations. As a proof of this, they refused to comply with a requisition of Congress for repealing all laws repugnant to the treaty of peace with Great Britain; and urged, as their principal reason, that it would be calling in question the propriety of their former measures."

In the Virginia Convention for the adoption of the United States Constitution, (among other strictures which may be found in 2 Elliot's Debates, pp. 51, 83, 92, 154, 171, and 457,) Governor Randolph said, "Rhode Island has been in one continued train of opposition to national duties and integrity." And Mr. Lee, of Westmorland, said, "that small State has so rebelled against justice, and so knocked down the bulwarks of probity, rectitude, and truth, that nothing rational or just can be expected from her."

By this conduct of her Assembly, Rhode Island became isolated as to the Union, and Congress, by a special act, placed her, in respect to the States, on the footing of foreign nations, as to the duties on her exports.

The Assembly was at last brought to its senses, or better men were chosen, and in January, 1789, the Legislature called a Convention to adopt the Constitution. The act was merely advisory and not compulsory. It recommended to the freemen to elect delegates to a Convention; and thus, so far as the legal voters were concerned, referred the action upon the Constitution to the people.

This was the first Convention on government ever held in Rhode Island. It was the nighest to any authentic act of the people which her history exhibits down to 1841; and hence its action had a higher sanction than that of any Legislative body.

May 29, 1790, the Convention ratified the Constitution of the United States, and at the same time adopted and proclaimed a Bill of Rights. [Elliot's Debates, 223.]

"We, the delegates of the people of the State of Rhode Island, &c., duly elected, and having maturely considered the Constitution for the United States of America, and having also seriously and deliberately considered the present situation of this State, do declare and make known—

"Second. That all power is naturally vested in and consequently derived from the people; that magistrates, therefore, are their trustees and agents and at all times amenable to them.

"Third. THAT THE POWERS OF GOVERNMENT MAY BE RESUMED BY THE PEOPLE, WHENSOEVER IT SHALL BECOME NECESSARY TO THEIR HAPPINESS.

"Fourth. That elections of representatives in Legislature ought to be free and frequent, and all men, having sufficient evidence of permanent common interest with and attachment, to the community, ought to have the right of suffrage,

"Fifth. That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised,

"Sixth. That no freeman ought to be taken, imprisoned, or disseized from his freehold liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the trial by jury or by the law of the land.

Seventh. That every freeman ought to obtain right and justice freely and without sale, completely and without denial, promptly and without delay; and that all establishments and regulations, contravening these rights, are oppressive and unjust.

Eighth. That every person has a right to be secure from all treasonable searches and seizures of his person, his papers, or his property.

Ninth<. That the people have a right peaceably to assemble together to consult for their common good, or to instruct their representatives; and that every person has a right to petition or apply to the Legislature for redress of grievances.

Tenth.That the people have a right to keep and bear arms.

Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, we the said delegates, in the name and in the behalf of the people of the State of Rhode Island, and Providence Plantations, do by these presents assent to and ratify the said Constitution."

Here were four great rights recognized as the fundamental law and constitution of Rhode Island, higher than the charter and beyond the power of the Legislature to abridge or violate, viz.: that the source of all power is the people,— that the powers of government may be re-assumed by the people,— that all men having a permanent common interest in the community are entitled to suffrage,— that the people have a right to assemble and consult for their common good.

On this platform of right we stand, as the basis of popular government in Rhode Island. The same Bill of Rights, with some modifications, was subsequently enacted by the Legislature, and is found in the Digest of Laws of 1798, p. 79. And a higher power than the Legislature had declared that not one of these rights could be abridged or violated, and that no body of men could deprive or divest their posterity of either of them.

Still the people of Rhode Island were without a written constitution, and remained so for more than half a century after this declaration.

It will be contended, on the other side, that there is no legal form of making a constitution but through the precedent action and consent of the Legislature. If such be the doctrine of American liberties, which we deny, then the people of Rhode Island could never have a written constitution, unless the sovereign will and pleasure of the Legislature should give them permission to make one, and prescribe the limitations, rules, and forms of proceeding. With this power, if conceded, the Assembly might limit the grant to a minority or to any class of men they might select; and if suffrage were confined to a minority, no matter how small, compared to the great body of the people, the minority might forever hold the power at their pleasure.

Upon this theory, constitutions would be mere grants to the people by their rulers, like the grants of kings to their subjects, from Magna Chanta down to the concessions of some petty German sovereign.

Even the great Magna Charta was extorted by force from King John, and defended by rebellion against what was then called "divine right," and now "the divinity of government;" and its confirmation by King Henry the Third, when a boy under age, begins in these words:— "Henry, by the grace of God, King, &c., of our meer and free will have given and granted to all freemen of this our realm these liberties following." [Care's English Liberties, p. 10, Ed. of 1774]

Recently, upon the restoration of the Bourbons in the person of Louis the Eighteenth, the French Chambers struggled in vain to compel that vagrant king, who came back from exile a mere beggar, to permit the constitution to be framed as a recognition and not a grant of

The whole struggle in Rhode Island for fifty years to make a constitution has been the same issue as that raised between King John and the Barons, and more modern legitimates and their subjects, namely, whether the people should make a constitution or the Assembly should grant it or not, at sovereign will and pleasure.

God grant that this high tribunal, in the seventy-second year of American independence, may not, by any act of their enlightened judgments, seem to sanction the revival of this exploded dogma of sovereign grants, to a subject people. To do this would be, to the extent of the moral and judicial power of this Court, to command the law, not merely to stand still, but to go backward in the glorious firmament of free institutions.

How, then, were the people of Rhode Island to get a written constitution?

Through the previous consent of the General Assembly, is the answer of our learned opponents.

We will, then, show the persevering petitions, the long suffering, the patient endurance of the people of Rhode Island, by

We begin in the midst of the Revolution, September, 1777, upon application to the Assembly, as appears by the printed Schedules of that year, it was voted and resolved that his honor the Deputy Governor, (William Bradford,) Henry Ward, William Channing; Jonathan Arnold, and Rowse J. Heline, Esquires, be a committee, they or the major part of them, to form a plan of government for this State, and lay the same before this Assembly as soon as conveniently may be.

No report was made. Newport was then in the possession of the British, and the defence of the country occupied the Assembly and the people.

In April, 1782, a meeting of delegates from the towns in Washington County requested the General Assembly to call a Convention, but were refused.

In 1786, a bill, that each town in the State should have two representatives and no more, was sent out to the people by the House of Representatives, and rejected, as it ought to have been. It was a mere pretext of the landholders, to defeat equal representation;

In 1796, delegates assembled from eight towns in Providence and Bristol Counties requested the Assembly to take measures to frame a constitution, of which no notice was taken by that body [Considerations.by E. R. Potter, p. 14.]

In 1797, George R. Burrill, one of the most eminent lawyers Rhode Island has ever produced among her learned and eloquent bar, pronounced a brilliant oration in Providence, on the 4th of July, "in favor of a Republican Constitution."

I shall read some extracts from this authority, first to show the strong appeal made at that period to the minority rulers to give a participation in government to the disfranchised majority, and second to prove that the General Assembly of Rhode Island had no power to propose or frame a constitution;

"Something better than a void, or at most an imaginary, constitution, was to have been expected from the State of Rhode Island. We inhabit a crazy and comfortless mansion, shaken by the winds and pervaded by the storm. The materials are around us of a stable, commodious, and magnificent edifice. The foundation is laid in the independence of our country, let the superstructure, the constitution, perfected from the models of our fifteen States, and the experience of our own numberless necessities, be raised and fixed upon it."

"But if, in a representative government, the smaller number of the people choose the majority of the Legislature, how shall a constitution, or a change in the constitution, be effected? To petition this Legislature for equal representation, is to require the Majority (there) to surrender their power, a requisition which it is not a human nature to grant. But is this evil to be perpetual? Is there not in every government the principle of amendment and accommodation?— a natural constitution, paramount to all positive institutions? If there is not, there may then be, in a given case, a free people, who neither are, nor ever can be, governed by their representatives, and the government, thus corrupt and absurd, may exist, with all its errors and abuse, forever, exhibiting this parodox—a free, sovereign, and independent people, desirous of changing their form of government, without the power of doing it. Such a perpetuity is absurd and repugnant; the power exists, in the State, and in every free State; and that of necessity and independently of any human provision."

"It is absurd to maintain that the people are free in a despotic government, or that the

Again, speaking of the principles and immutable maxims of free governments, by which its people are supreme over constitutions, he says:

"Rebellion, therefore, or resistance to law and order," [the very watchword of the Rhode Island Chartists,] "is not to be imputed to those who maintain this supreme authority, although they act in oppostion to a written constitution, because wherever the two authorities interfere, the subordinate is void, and must give place to the supreme authority. Still less can the charge be alleged where there is no wirtten constitution, or where it was never ratified by the people (the charter) but imposed on them by an authority which they have in the most solemn manner renounced."

As to petitioning the Legislature, he says:—

"The Legislature cannot create a constitution, since the Legislature itself is the creature of the constitution. Neither can the Legislature judge of the necessity of forming a constitution, or dictate when or how it shall be formed. To the court is referred to pronounce judgement, to the Legislature the enacting the laws, and to the people the forming of the constitution. In petitioning the Legislature for a constitution, we are guilty of deserting from the principle and abandoning right. We might as well petition the Court of law. The question is referred to an incompetent tribunal. It is coram non judice. Thee determination of it rests with the people. It is the sole and transcendent act which resides in the people, and that not by representation, by personally and numerically. The Convention which forms the constitution is but a committee of the people. This is a jurisdiction which cannot be transferred. The exercise of it is the resumption of the delegated power, and a recurrence to the elements of government— the exclusive jurisdiction of the people in all questions relating to a constitution."

Fifty years ago this was sound doctrine from the soundest legal mind, even in Rhode Island. How came it rebellion and insurrection and resistance to "law and order" in 1841?

At the June session of the Assembly, in 1797, John Smith, of Providence, (a distinguished patriot in the Revolution, whose hands and means were always open to the friends of liberty, and who carried in his body to his grave a ball received in the old French war.) Moved in the House to have a Convention called to frame a constitution, the Convention to be composed of delegates chosen in the ration of one to every thousand inhabitants. Mr. Champlin, of Newport, seconded the motion, and it was carried by a vote of 44 to 26. It was rejected in the Senate.

Twenty-two years elapsed without further effort. In 1811, a bill was introduced in the Senate, by the Hon. John Pitman, (now Judge of the United States District Court for Rhode Island,) extending suffrage to every white male adult paying a poll or property tax or enrolled in the militia. It passed the Senate and was suppressed in the House.

In 1818, Connecticut abolished her charter and adopted a constitution, and Rhode Island was left alone in the Union without a written constitution. This revived the question, and a series of strong articles appeared in the Manufacturers' and Farmer's Journal, in November and December, 1820, and January, 1821, written by William E. Richmond, and able layer. A few extracts will show the opinions then held.

"A free people have, for more than forty years, submitted to a species of government, in theory, if not always in practice, as despotic as is that of the autocrat of all Russias."

"The General Assembly, which now pretends to a legitimate right to govern us, exists and acts by its own authority alone— a platform of government, which is devoid of all authority from the people, and which, though it gives the whole people supreme power to eighty-four despots, instead of one, is not the less arbitrary and despotic on that account."

"The people of every political community are, under God, the only legitimate source of political power. To them, and to them only, belongs the right of establishing government; they may create, modify, or entirely alter government at their pleasure." "If the people of this State wish to secure the inestimable liberties, which every freeman knows to be his unalienable right, they must make the ordinary legislative power what it ought to be, and in every other State is, the creature instead of the creator of the laws; the work of the people in Convention assembled."

"That omnipotent body (the General Assembly) should consider that the people are competent to form a Convention for themselves, without the authority of their high mightinesses;

Some impression was made by these and other intimations that the people would act if the Assembly did not. Among other movements, the subject was agitated of electing a member to Congress by a majority of all the adult males in the State, who should claim his seat over the minority landholders' candidate, under the guarantee of a republican form of government; but did not come to a head.

In 1824, the Assembly were constrained to meet the demand for a Convention, but it was in bad faith to defeat and not to make a constitution. The minority even of the landholding minority held the power, through unequal representation, and were resolved to retain it. The act provided "that the freemen (landholders) qualified to vote be, and they hereby are requested to choose as many delegates as they are entitled to choose representatives, to attend a Convention for the purpose of frammg a written constitution."

Here again we have "request" and not command, which in itself is an admission of the want of power in the Assembly to call a Convention.

This minority Convention, which excluded the great body of the people, met and manufactured a miserable patch-work of a constitution, "which limited representation to the minority, and retained the odious provision of landed qualification for suffrage.

Hon. Dutee J. Pearce, of Newport, made a cogent speech in the Convention for free suffrage, but the measure received only three votes in that unenlightened body of "freemen" as they boastingly called themselves.

This poor fragment of a constitution was submitted to the landholders alone, and by the landholders was rejected.

Again, in 1829, the patient majority people of Rhode Island approached the self-styled "omnipotent" General Assembly, and humbly prayed for a constitution that should give them a share in the exercise of government as well as in its burdens. 818 citizens, as petitioners, were heard before the Assembly, by their counsel, (of which the speaker was one,) and instead of what they asked, were given a scorpion. The result was the adoption of the bitter report by Benjamin Hazard, Esquire, a man as misanthropic as he was talented. The whole of this report is put in the record of this case, and if words are wrongs, here was enough to have roused resistance and justified revolution by the bayonet instead of the ballot. The non-freeholders in Rhode Island were compared in this report (which was sanctioned by the Rhode Island Assembly) to the slaves of South Carolina. The slaves, said Mr. Hazard, "are a part of the people as much as those of other descriptions, who, on account of other disqualifications, are excluded from the exercise of the right of suffrage."

The extension of suffrage to citizens paying a small property tax without owning land was denounced in this wise:—

"Some article valued at the amount required, a watch for instance, was made to serve for any number of recruits, who thus qualified were marched up to the polls, one after another, attended by a guard to prevent any one of them running off with his qualification! Where the right of suffrage may be thus bought for a mite in the name of a tax, twice the amount of which a dexterous beggar might acquire by his trade every day in the week, this tax qualification is in truth merely a nominal one."

The report proceeds to denounce the naturalization laws, and the admission in other States of citizens of foreign birth to vote; and the war of 1812, for the inviolability of the American flag, is reviled, as a pretended national war to protect the importation of this staple commodity, not only here, but on the seas, against the claims of their native countries, for the prosecution of which the blood and the resources of the people were staked and the nation burdened with a debt of millions!

Another of the evils that would destroy government, if free suffrage were introduced, the report reprobated in the form of the extension of suffrage to the African race. Finally the petitioners were classified with "troublesome demagogues and noisy political agitators, who gave but a poor promise of their suitableness to become freemen, and the longer they continued unqualified the better; "and were told, that if they and those who clamored for an extension of suffrage without land did not like Rhode Island and her institutions, they were at liberty to go elsewhere!

It is worthy of remark, that after these imaginary terrors about free suffrage had served the purpose of the landholders for half a century to exclude the people from the polls, every one of the evils most deprecated by the Assembly in 1829, have since been introduced into the present constitution of Rhode Island, by the charter party themselves, including even the "African race!"

The People's Constitution, which the defendants here denounce as the fruit of "rebellion,"

The constitution now in force in Rhode Island gives suffrage to every white or colored native adult, of two years' residence, who can buy it by paying a dollar, provided he registers his name four months before voting.

It is obvious that this prodigous change in opinion, from 1829 to 1848, could only have been effected in the Rhode Island oligarchy by the cogent arguments the people resorted to in making their constitution; and, when threatened with military resistance, assembling in arms to defend and uphold it as the supreme law of the land. If the Chartists did not surrender in person to Governor Dorr and his men on Acote Hill, history will record that they surrendered all the supposed principles they had pushed to the extremity of a conflict of arms, and thus demonstrated that it was love of power or pertinacity for exploded errors and not sound patriotism that led to their resistance to the right of the people to frame government. All the movements of the people, which they call "rebellion," but which, if the people are sovereign, was fundamental law, were caused, not by the supporters of the People's Constitution, but by the same wrong-headed spirit of opposition to popular rights, in which George the Third refused representation to the colonies until he was compelled to acknowledge their independence.

This is strikingly shown by an examination of the report of Mr. Hazard, which formed a crisis in the attempts of the people to get redress through the Assembly. The argument and the temper of that singular paper are characteristic of the casuistry with which the oligarchy in Rhode Island so long succeeded in excluding the people from participation in government.

It began by denying that the Legislature had any power to extend suffrage, and by consequence to make a constitution. It then maintained that the charter was the constitution of Rhode Island, and by it all power was resolved into the Assembly, and thereupon affirmed that "they are not a free people who hold their rights at the discretion of others, one or more."

This was the logic by which the landholders kept up their minority power. When asked to extend suffrage, they refused it on the pretext that the Assembly could not do it, because it belonged to the people. When asked to call a Convention of the people to make a constitution, they refused to let the people come in to extend suffrage, and thus defeated both suffrage and a constitution. Finally, when the people, finding the Assembly would not act, proceeded to act for themselves, the Assembly charged them with treason, because they had no right to move a step without the consent of the Legislature!

Were it necessary to justify the disfranchised people of Rhode Island for never again approaching the power that had thus spurned them, it would be found ample, conclusive, in the review taken thus far of their attempts to get a constitution through the action of the Legislature.

Another effort, however, was made in 1834, through the organization of the constitutional party, designed to combine all parties in the choice of members of the Legislature friendly to a constitution. Delegates from twelve towns met in Convention, in March, 1834, and suggested the outlines of a constitution, and published an elaborate address. At the June session of that year the Assembly again took up the subject, but with the same error so long and so obstinately persisted in, and "requested" the freemen to choose delegates to a Convention, to he composed of the same exclusive class that for sixty years had withheld suffrage.

This Convention met in September, 1834, and spent several weeks upon the frame of a constitution— then adjourned, met again, and for want of a quorum dispersed. It was well that they did so, for but seven votes could be found in that Convention to extend suffrage beyond the landholders.

May it please the Court, these proofs were offered by the plaintiff and are here shown, to take out of the case all pretence that the people causelessly acted without a form of statute law for holding a Convention to make a constitution. This was the time, and long before, when the advice of Washington in a like case should have been heeded:— "If the constitution be defective, let it be amended."

But the Assembly had resolved that it should never be made or amended to embrace within it any citizens but the minority landholders. It left no alternative but the eternal submission of the majority to the minority, or the preliminary action of the people outside of the forms of legislation.

In an independent State (aside from the federal relations to the Union) it would have justified any form of revolution by violence. Within a state of this Union, and under the principles and forms of American liberties, it justified a revolution by the peaceful usages of Conventions, without regard to any precedent statute of the usurping Legislature.

This was the course adopted by the people, and to show this, we will next consider the proofs in the record of the right and lawful establishment of a new frame of government through the

We start with the great right of the people to assemble. This, in all forms of free government, is inherent. It belongs to citizenship, and can only he denied to serfs and slaves, who have no political rights and can therefore take no step whatever in the organization of government.

By the Bill of Rights, solemnly proclaimed by the Convention which adopted the Constitution for Rhode Island 1790, it was declared "that the people have a right peaceably to assemble together to consult for their common good."

When that constitution was adopted, the non-freeholders of Rhode Island, as citizens of the United States, retained the reserved "right of the people peaceably to asemble."

Under this constitutional right, established by the Convention of 1790, paramount to the General Assembly, the people of Rhode Island assembled together to consult for their common good, and there was no power in the State to interpose to prevent it.

Details here, though not interesting, become of great importance to the argument. In 1840, Suffrage Associations were formed and met together. February 7 and April 13, 1841, a declaration of principles was adopted and published, affirming among other rights, that "whenever a majority of the citizens of this State, being citizens of the United States, shall, by delegates in Convention assembled. Draft a constitution, and the same shall be accepted by their constituents, it will be, to all intents and purposes, the law of the State."

And their reason for this proceeding was, "that by the existing forms of government the control of the Legislature was vested in less than one-third of the free population, and that as the voters in this third are only a third part of the whole male adult citizens, it placed the control of the Assembly and the State in one-ninth part of its adult population, so that three thousand men, out of twenty-five thousand citizens, held the whole power of making the laws." [See printed Record, pp. 70, 71.

This meeting appointed a State Committee to prepare an address, and their proceedings were transmitted to the Governor and the Legislature, who were thus officially informed of the movement.

At this point of time the two relative proceedings of the people and of the Assembly began in reference to a constitution. The first resulted in the People's Constitution, which was adopted, and the second in the Landholders' Constitution, which was rejected.

It has been affirmed and reiterated, that the people were unreasonably and hasty in urging their constitution, and not waiting for that emanating from the Assembly, which was nearly as liberal as theirs. Now it is easy to show that all that was liberal in the Landholders' Constitution was forced from them as Magna Charta was from King John, by the pressure from the people; and that had they paused in their work no constitution reaching beyond the subsisting oligarchy would ever have been formed. To prove this, the following facts in the record are ample.

1841— January session— The petition of Elisha Dillingham and 580 other, praying for a written constitution and extension of suffrage, was presented to the Assembly.

To divert this movement and that of the Suffrage Association, the Assembly resorted to the old expedient, and passed resolutions requesting the charter freemen to choose delegates from the freemen to hold a Convention on the 1st Monday of November, 1841, "to frame a new constitution for this State, either in whole or in part," to be voted for only by freemen. Delegates to be chosen at town meetings in August.

February 7— The Rhode Island Suffrage Association adopted a preamble and resolutions in the nature of a protest against the exclustion of all the non-freeholders, being a large majority of the citizens, from all participation in the formation of the Convention.

April 13— They reiterated the same, and invited "citizens generally to meet" at Providence, on the 17th, for the furtherance of the cause.

April 17— A mass meeting was holden at Providence, re-affirming the same views. Adjourned to meed at Newport on the 5th of May, when the Charter Assembly would be in session at that place.

May 5— The mass convention met at Newport, the State Assembly being than in session. A preamble and resolutions were adopted, asserting the right of the people to vote for delegates to a Convention for framing a constitution, and also for such constitution. A state committee of eleven was appointed. Adjourned to meet at Providence, Monday, July 5.

All efforts at the May session to extend the call beyond the landholders failed. The assembly passed an additional resolution, fixing the delegation to the Convention on a basis of population, but in no respect changing the qualification of electors or members. Mr. Atwell's bill, offered as a substitute, changing the basis of population and fixing qualifications of elec-

Should the people have stopped here?

All experience had shown the folly, futility and want of good faith in attempting to frame a constitution on this false basis; and the people quietly proceeded in their work.

June 11— The State committee published an address; announcing their intention to call a Convention of delegates to form a Constitution.

Still another effort was made to move the Assembly at their June session, 1841; but without effect. At that session Mr. Atwell's bill was rejected; 10 to 51. That distinguished advocate (since deceased) made a fourth attempt to extend the call to those who had paid town or state taxes a year before voting for delegates to the Convention, but this was also rejected.

After, and not before, this final denial of all their rights, the people moved onward to their great purpose;

July 5— The adjourned mass Convention met at Providence, 6000 and upwards being present. Passed resolutions re-affirming the former ones; in the 5th declaring "Inasmuch as the General Assembly have finally denied to the great majority of the people any participation in the Convention for framing a constitution the time had arrived for the action of the people themselves;" and approved of the call of the Convention for the formation of a constitution;

July 24— The State committee published their call for a Convention, delegates to which were to be elected by towns, on a basis of population. The Convention to assemble at the State House, at Providence, on the 1st Monday of October, 1841; every male citizen of twenty-one years and upwards, who had resided in the State one year preceding the election of delegates, to vote therefor. 1000 handbills were distributed, containing proceedings and call. Delegates to be chosen on 28th August, 1841.

August 28, 1841— Delegates to the People's Convention were chosen in town meeting in all the towns of the State; under Moderators and Clerks chosen in the usual forms of law.

August 31— Delegates were chosen by the landholders to their Convention. The only difference here was that the latter was done by request of the Assembly, and limited to landholders; and the former by the call of the people under their organizations.

October 4, 1841— Convention to frame People's Constitution assembled at Providence.

October 9— Articles for the constitution were adopted by the Convention; and the Convention adjourned to meet again at the same place on the 16th of November. The articles adopted to be printed and published for the information of the PEOPLE.

October 13— The articles were published in pamphlet form and distributed.

Forty-three days intervened for deliberate consideration. The October session of the Charter Assembly passed without any action on the subject.

The first Monday in November the Landholders' Convention assembled at Providence to frame the Landholders' Constitution. After sitting a few days, they agreed on articles for a Constitution ordered them printed for information, and adjourned to meet again in February; 1842, to complete the work. These articles proposed to fix the right of suffrage on a qualification of 500 dollars, clear property! The effect of this was to restrict suffrage even below the ratio then existing of 134 dollars in landed property; and demonstrated that the great body of the people could get no participation in government from the oligarchy. Had they paused here, all would have been lost. The people wisely went on.

Novenlber 16— The Convention met at Providence and completed the constitution; and ordered it published.

November 18— The constitution was published and ordered to be voted for On the 27th of' December and five following days, when the Convention adjourned to meet again on the 12th day of January, 1842, to receive and count the votes;

Town meetings were held in all the towns, under Moderators and officers chosen as required by the terms of the constitution. Each person voting wrote his name on the ticket he deposited; describing whether he was or was not a qualified voter, and the votes were duly registered; and the originals returned to the Convention;

January 12— The Convention met at Providence and formally ascertained the result. And on this point; as to a clear majority for the constitution; both of the whole adult male citizens and of the whole qualified voters in the State; the record finds the facts; to every legal effect for the purposes of this trial; The fact is to be taken; to all intents; as a part of the case, and the Court must decide upon this point; with both the majorities in both cases proved;

The result showed that this whole number of adult males in the State was 23,142. For the constitution 13,944— a majority of 4,746, had all voted. The whole number of qualified voters in the State was 8,984— majority, if all had voted, 1,298.

By all majority forms of voting, the majority of those actually voting prevails, and such was the rule adopted both on the Landholders' Constitution which was rejected; and the present constitution of Rhode Island, which was adopted, in 1843. Further than this, in

The fact, therefore, aside from all legal intendment, is demonstrated, and they who would argue down the People's Constitution must argue down the majority principle with it.

On the 13th day of January the Convention formally declared the constitution adopted, and made proclamation, which was published through the State. By order of the Convention, the constitution was sent to the Governor, and by him was communicated to the Assembly, then in session at Providence.

January 11— Mr. Atwell, in the House of Representatives, presented a bill for recognizing the People's Constitution as the paramount law of the State; and

January 14— The People's Constitution, with the report and resolutions of the Convention as communicated by the Governor to the House, were read and laid on the table. Mr. Atwell called up the bill offered by him on the llth, which was read.

January 19— Mr. Atwell gave notice that he should call up his bill the next day.

January 20— Bill called up, debated. Further discussed Jan. 21 and 22, and rejected, 11 to 57. The Assembly also refused to examine and count the votes by which the People's Constitution was adopted.

January 21— At the same session a resolution passed, charging the People's Convention with assumption of power— a violation of the rights of the government and of the people.

This was the first attempt of the Assembly to interpose against the people. It was merely denunciatory, and the people having peaceably made a constitution, through all the forms of Convention, and voting, it was too late for interposition, unless the rulers and not the people are sovereign in framing and establishing government.

At this point of time, the obstinacy of sixty years gave the first indication of concession, and the Assembly, though adhering to the limitation of landholders for delegates, extended the right of voting on the adoption of their constitution to those having the qualifications it should prescribe.

February, 1842— The Landholders' Convention again assembled at Providence; and

February 19— Their constitution, having been amended and completed, was signed and submitted to the electors.

A salutary change had been produced in their views of popular rights by the People's Constitution. They gave up their death grasp upon land, struck out the 500 dollars qualification, and extended suffrage to citizens having a residence of two years.

The vote on this proposed constitution then became the test whether it should supersede the People's Constitution already adopted. A spirited canvass of three days voting was had, and March 28 the Assembly found their constitution rejected by a majority of 676, out of a vote of 16,072, thus reaffirming the adoption of the People's Constitution. In their exasperation at the people for the rejection of the Landholders' Constitution, the General Assembly, at the same session, (April 4,) passed an act of pains and penalties, to prevent the people from carrying their constitution into effect, or of holding any meetings for the choice of officers under it. This act (which has no parallel in legislation, except the paper money act of 1787,) has been usually known as the "Algerine act." Again, March 30th, it was moved in the Assembly, in order to reconcile all dissension, to submit the People's Constitution again to the popular vote; but this was negatived, 3 to 59.

Such were the peaceful, deliberate, regular, and lawful proceedings of the great body of the people in framing a constitution; and had not the Assembly resorted to an appeal to the President of the United States for aid in a military resistance to the new government, there would have been no disturbance of "law and order" in Rhode Island. The constitution which the Assembly afterwards were graciously pleased to "grant" to the people, wholly abandoning the land suffrage, clearly shows that the only point left with the charter party was the point of pride, namely, the content of the Legislature. And the only question here will be, whether the people could not move without that consent, or whether they should have surrendered the constitution already adopted, and taken another permitted to be voted on by the Assembly, after that consent was reluctantly wrung from the ruling minority?

But aside from this, the substantial objection in principle existed with the people, viz.: that the Assembly had never given consent to the people, but only to the minority landholders, to choose delegates to frame a constitution. To have yielded this, and permit minority rulers to make a constitution, excluding all participation in its provisions by the people, and merely calling for the yea and nay this or nothing would have been the entire surrender of the great right of the people to frame as well as to establish government.

The next step was to organize under the People's Constitution. If at this point it was the supreme law, all that followed was lawful.

April 18th, 1842, the general election was regularly held under all the forms of the constitution, without disturbance or interference, and all the officers of government, executive and representative, were voted for by those qualified under the constitution.

By the terms of the constitution, the old government was to continue until the first Tuesday of May, and on that day the constitutional Legislature met together, regularly organized both Houses, counted the votes, administered the oaths to the Governor and other executive officers, chose officers, enacted Laws, and transacted all the business which it had been customary for the Assembly to do, in organizing the government at the May session. On the 4th of May, the Legislature adjourned to meet again the first Monday in July, having provided for the promulgation of its laws; for the continuance of Courts of Justice, and of all laws not repealed; and for the transfer of all the public property and records to the proper officers. These acts and resolves of the session, as published in the Schedule, make a part of the printed record of this case, occupying thirty pages; and this record of the proceedings under the new constitution, duly certified by the officers and by the Secretary of State, appears in all the authentic forms for the judicial notice of this Court, which are recognized by Courts of Law. The Charter Government can offer no other evidence of their existence. The only question that can be raised between the two, lies behind the record, and that is, who were the proper officers, holding power at the time?

The terms of all the officers and members of the Charter Government of 1842 expired in April, 1843. Nevertheless the landholders went on and elected new officers and members, after the adoption of the constitution, and held their Assembly at the same time the People's Legislature were in session.

By an act of the Legislature, Governor Dorr was required to take possession of and cause the public property to be delivered to the proper authorities and officers acting under the constitution and laws of the State. If he had the rights of office, it was his official duty to claim the immunities of title. In pursuance of this authority, he proceeded, on the 17th of May, to take possession of the arsenal in the city of Providence; and here was the first resistance of the landholders to the execution of the laws under the new constitution. That armed resistance would never have been resorted to, and the new government would have been quietly acquiesced in by the original minority who had opposed it, but for the aid which one of the distinguished counsel for the defendants, then Secretary of State, had prevailed on President Tyler, under a contingency, to promise to the defeated charter party; of all the naval and military force of the United States, to put down the people.

True, the President did not send his armies to invade Rhode Island, although he did his officers; but the pledge to do so, if the people did not surrender their government and submit to the usurpation of the minority, had the same effect. It drew the timid, wavering, unresisting, neutral, and peaceably-disposed all from the new government, and forced them to take part on the other side; and thus, after its distinct establishment and organization and action, in all the forms of election and legislation, its officers were driven with violence from the State, and its Legislature prevented from assembling, by the resistance of an organized military force, assuming to be backed by all the military power of the President.

This mode of putting down the new government, without first establishing another form, was either a suppression of rebellion, or it was rebellion itself against lawful government. They say the former. We maintain the latter, and this makes up the issue.

And whether one or the other, depends not upon the fact whether the People's Legislature existed two days or two years. If the constitution, and the Legislature under it, existed at all, though but for a moment, all the rights which accrue and appertain to a being in esse belonged to both. The birth, though but for a breath of life, illegitimate, carried with it all the broadest rights of inheritance and succession.

But a single authority is necessary to settle this point with the defendants.

"The understanding" (says Mr. Justice Story, in his Comm., vol. 1, p. 305, 306,) is general, if not universal, that having been adopted by a majority of the people, the constitution of the State binds the whole community proprio vigore, {by its own innate power,) and is unalterable, unless by the consent of a majority."

Against this, where has American precedent a single respectable authority? In a research of six years, since this cause began, when and where have either of the learned counsel for the defendants found it?

If the constitution was adopted "by a majority of the people," then and from that how it bound the whole community, proprio vigore. No matter who should follow or who should fly, upon the appearance of an armed force to put down the constitution; it was unalterable, "unless by the content of a majority."

Though all who made it had taken up arms against it, they were lawless rebels against established government, unless the majority had first established a new constitution which bad superseded the old.

Between this period of the adoption of the People's Constitution in 1842, and the subsequent adoption of the existing constitution of Rhode Island in 1843, is the point of time that covers the trespass. The defendants claim that the old government continued, notwithstanding the new one.

We contend that it expired and the new government was in force until the people adopted another constitution in 1843, as they had a right to do.

In June, 1842, when Governor Dorr had issued a special proclamation for the People's Legislature to convene at Chepacbet and enforce the Laws, and both parties were in arms, the Charter Assembly passed an act, for the first time, requesting the people, and not the free-holders merely, to elect delegates to a Convention, to frame a new constitution. All were to participate in this choice of delegates, being twenty-one years of age and having permanently resided three years in the State. Under this assumed act, (which the Charter Assembly) even if in legal existence, had no delegated or inherent power to pass,) delegates were chosen, August 31, 1842. The Convention met and framed a constitution, September, 1842, abandoning the whole feudal doctrine of land tenure and primogeniture. The constitution was to be voted on, the 23d of November, 1843. The call for the Convention required that, to take effect, it must be adopted by "a majority of the persons having a right to vote." Fearing this could not be obtained, it was afterwards changed, by the Charter Assembly, to "a majority of the persons actually voting." Under this rule, the whole number of votes given for the constitution was but 6,836, of which all but 59 were yeas. 5,829 voted to admit colored persons as voters.

This diminished vote from 16,702, when the People's Constitution was tested, showed that the new constitution was permitted to pass, rather than adopted, by the majority of the people. The defunct Assembly had no more right to propose a Convention than the Suffrage Association had. But the sanction of the majority of the people actually voting, cured all precedent irregularity; and by the same rule, and no other, by which the People's Constitution became the supreme law, with 14,000 voters, the present constitution superseded it, though by a diminished vote of less than 7,000. Officers were chosen under it in April, and the government organized May 2d, 1843, and this is the subsisting government and constitution of Rhode Island. And this is the government which, unwisely taking up the resentments and prejudices of the dead, imprisoned the plaintiff for acting as Moderator, and sentenced Governor Dorr to a dungeon for life, as if he had really committed treason!

May it please your honors, these details comprise the three branches of the history of government in Rhode Island which I proposed to consider. From these facts embraced in the record as part of the plaintiff's case, we have the material to trace the source of power in Rhode Island in 1842.

We find then—

1st. A constitution peaceably framed and adopted by a majority of all the people, and by a majority of the legal voters under the charter laws.
2d. Officers of government chosen under it peaceably, in due form, and sworn.
3d. The Legislature meeting, and all branches of Legislative and Executive power in operation, peaceably, and without force. Up to this point there is no force, no collision between the old and new forms of government.

It is no answer for the defendants to say, that by the promised military aid of the President, the defunct government, when about to yield, became stronger than the new government, and were able to suppress it by force! This would be a sound argument for the title of William the Conqueror, as the source of legitimate sovereignty in England. But it is no American argument. Every fact by which the defendants assume to deny the existence of our government in Rhode Island, because theirs refused to surrender, and held possession by force of arms, proves nothing, unless it proves that the theory of Hobbes, which founds government on conquest, is the American theory, and not the social compact.

But this question is also settled by Mr. Madison, in the 43d number of the Federalist, p. 176. Discussing this very matter of the rights of majorities, as against physical force, he asks—

"Is it true, that force and right we necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine, that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election."

This embraces precisely the Rhode Island case. The numerical majority was clearly on the side of the people when the constitution was adopted and its officers elected. If left to itself, within the community which alone had a right to determine upon its own local institutions, the majority would have peaceably prevailed. What did the minor party do at this crisis? Just what Mr. Madison contemplated might be lawlessly done, if not restrained by fundamental principle. They had, in the great wealth of their own minority— merchants, manufacturers, and bankers— "a vast superiority of pecuniary resources," and they obtained, through the Secretary of State, and other political influences, a promise of "secret succors from a foreign power," which rendered the minority superior in an appeal to the sword. It was the few of the originally voting majority who were willing to fight for their constitution, against, not the Chartists and the deserters, but against the whole naval and military power or the Union!

And what has that to do with the right of majorities to make government? Must it be by a fighting majority, as well as a voting majority, that American constitutions are to be formed and established in the States of this Union? I therefore throw this element of force, and all the pretended acts of the old Assembly after the adoption of the constitution, entirely out of the question.

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