Lead Opinion
delivered the opinion of the court.
This case has arisen out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842.
It is an action of trespass brought by Martin Luther, the plaintiff in error, against Luther M. Borden and others, the defendants, in the Circuit Court of the United States for the District of Rhode Island, for breaking and entering the plaintiff’s house. The defendants justify upon the ground that large numbers of men were assembled in different parts of the State for the purpose of overthrowing the government' by military force, and were actually levying war upon the State; that, in order to defend itself from this insurrection, the State was declared by competent authority to be under martial law ; that the plaintiff was engaged in the insurrection; and that the defendants, being in the military service of the State, by command of their superior officer, broke and entered the house and searched the rooms for the plaintiff, who'was supposed to be there concealed, in order to arrest him, doing as little damage as possible. The plaintiff replied, that the trespass was committed by.the. defendants of their own proper wrong, and without any such cause; and upon the issue joined on this replication, the parties proceeded to trial.
The evidence offered by the plaintiff and the defendants is
This is a new question in this court, and certainly a very grave one; and at the time when the trespass is alleged to have been committed it had produced a general and painful excitement in the State, and threatened to end in bloodshed and civil war.
The evidence shows that the defendants, in breaking into the plaintiff’s house and endeavouring to arrest him, as stated in the pleadings, acted under the authority of the government which was established in Rhode Island at the time of the Declaration of Independence, and which is usually called the charter gov-eminent. For when the separation from England took place, Rhode Island did not, like the other States, adopt a new constitution, but continued the form of government established by the charter of Charles the Second in 1663; making only such alterations, by acts of the legislature, as were necessary to adapt it to their condition and rights as an independent State. It was under this form of government that Rhode IslantJ united with the other Statés in the Declaration of Independence, and afterwards ratified the Constitution of the United States and became a member of this Union; and it continued to be the established and unquestioned government of the State until the difficulties took place which have given rise to this action.
In this form of government no mode of proceeding was pointed out by which ameñdments might be made. . It authorized the legislature to prescribe the qualification of voters, and in the exercise of this power the right of suffrage was confined to freeholders, until the adoption of the constitution of 1843.
For some years previous to the disturbances of which we are^ now speaking, many of the citizens became dissatisfied witlT the charter government, and particularly with the restriction upon the right of suffrage. Memorials were addressed to the legislature- upon this subject, urging the justice and necessity of a more liberal and extended rule. But they failed to produce the desired effect. And thereupon meetings were held and associations, formed by those who were in favor of a maro extended right of soffrage.,which finally resulted in the election
Upon the return of the votes, the' convention declared that the constitution was adopted and . ratified by a majority of the people of the State, and was the paramount law and constitution of Rhode Island. And it communicated this décision to the governor under the charter government, for the purpose of being laid before the legislature; and directed .elections to be held for a governor, members of the legislature, and other officers under the new constitution. These elections accordingly took plaee, and the governor, lieutenant-governor, secretary of state, and senators and representatives thus appointed assembled at the city of Providence On May 3d, 1842, and immediately proceeded to organize the new government, by appointing the officers and passing the. laws necessary for that purpose.
The charter government did not, however,. admit the validity of these proceedings, nor acquiesce in them. On the contrary, in January, 1842, when this new constitution was communicated to the governor, and by him laid before the legislature, it passed resolutions declaring all acts done for the purpose of imposing that constitution upon the State to be an assumption ot the powers of government, in violation of the andJ, nat n would maxntam its authority anddel'end tlwPlegal and constitutional rights of the peopled ~~
iirsdopting this measure, as well as in all others taken by the charter government to assert its authority, it was supported by a large number of the citizens of the State, claiming to be a majority, who regarded the proceedings of the adverse party as
But, notwithstanding the détermination of the charter government, arid of those who. adhered to it, to maintain its authority, Thomas W. Dorr, who had been elected governor under the new constitution., prepared to assert the authority of that government by forcé, and many citizens assembled in arms to support him. The charter government thereupon passed an act declaring the State under martial IawTand at the same time proceeded to call out, the militia, to repel, the threatened-attack and. to subdue those who were engaged in it.. In this state of the contest, the house of the plaintiff, who was engaged in supporting the authority of the new government, was broken and entered in order to arrest him. The defendants were, át the time, in the’ military service of the old government, and in arms to support its authority.
It appears, also, that the charter government at its session of January, 1842,_took measures to call a convention to revise the existing form of government; and after various proceedings; which it is not material to state, a new constitution was formed by a convention elected under the authority of the charteiT government, and afterwards adopted and ratified by the people; the times and places at which trie votes were to he given, the persons who were to receive and return them, and the qualification of the voters, having all been previously authorized and provided for by law passed by the charter government. This new government went into operation in May, 1843, at which time the old government formally surrendered all its powers ; and this constitution has continued ever since to be tne admitted and estahiisbpfl gnwrnment of'Rhode Island:---‘—
•The difficulties with the government of which Mr. Dorr' was the head were soon over. They had ceased before the cori-stitution was framed by the convention elected by the authority of. the charter government. For after an unsuccessful attempt made by Mr. Dorr in Ma^, 1842, at the head of a military force, to get possession of the State arsenal at Providence;, in which he was repulsed, and an assemblage of some hundreds of armed men under his command at Chepatchet in the June following, which dis >ersed upon the approach of the troops of the old government, no further effort'was made to establish it; and until the constitution of 1843 went iiTttrrrpera— tiomfhe. charter government continued to assert its authority
Wmio not understand from the argument that the constitution under ■which the plaintiff acted is supposed to have been in force after the constitution of May, 1843, went into operation. The contest is confined to the year preceding. The plain* tiff" contends that .the charter government was displaced, afid ceasécftohhyeanv lawful power, alter the organization, in May, 1844¿. oí the government which he supported, and although thaUgovernmenc never was able _to_ exercise any authority-in the State, nor to command obedience to its laws or .to its officers yet Tjé~rnRÍKts that, it. was thelawiul and established govern nTent^npan^ftfa^gEaMnd — that it was ratified by a large ma-■forifyTffthe male people-jo£-the_State of the age of twenty-one and upwards, and also by a majority of those who were en~ titled to vote for yon eral officer~slimder”theTKeti .existing laws of-the-Siate. The fact that it was so ratified was not admitted ; and at the trial in the Circuit Court he offered to prove it hy the production of the original ballots, and the original registers of-the persbns voting, verified by the oaths of the several moderators and clerks of the meetings, and by the testimony of all the persons so voting, and by the said constitution ; and also offered in evidence, for the same purpose, that part of the census of the United States for the year 1840 which applies to Rhode Island ; and a certificate, of the secretary of state of the charter government, showing the number of votes polled by the freemen of the State for the ten years then last past.
The Circuit. Court rejected this evidence, and instructed the jury tha^ the charter government and laws under which the defendants acted were, at the time the trespass is alleged to have been committed, in full force and effect as the form of government and paramount law of the StateT'and constituted a justification of the acts of the defendants as set forth in their pleas. " ' ' " " ' “■
ItiFtETs opinion of the Circuit Court that we are now called upon to review. It is set forth more;at large in the exception, but is in substance as above stated; and the question presented is certainly a very serious one: For, if this court_ig,. authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, —if it had been annulled by the adoption of the opposing government, — then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and com
When ,the decision of this court might lead to such results,. it becomes its duty to examine very carefully,its_own powers before- it_undertakes to_exercise jurisdiction.
Cértainly, the question which the plaintiff proposed to raise by the testimony ne eneren nas not heretoiore been retyrgrriyad-as a In. forming the
constitutions of the different States, after the Declaration of Independence, and in the various changes and alterations which have since been made, the political department has always de-_. termined whether the proposed constitution or amendment was ‘ ratified or not by the people of the State — and-4he~Turl'LciaI power has followed its iecigion.. In Rhode Island, the question has been directly decided. .Prosecutions were there instituted against some of the persons who had been active in the forcible opposition to the old government. And in more than one of. the cases, evidence was offered on the part of the defence similar to the testimony offered in the Circuit Court, and for the samé purpose ; that is, for the purpose of showing that the proposed constitution had been adopted by the people of Rhode Island, and had, therefore, become the established. government, and consequently that the parties accused were doing nothing more than their duty in endeavouring to support- it.
But the courts uniformly held that the inquiry proposed to be made belonged to the political power and not to the judicial'; that it rested with the political power to decide whether the charter government had been displaced or not; and when . that decision was made, the judicial department would be hmmrj t.o take notice of it as the paramounfTaw of the State,'' without the aid of oral evidence o ttiPPiraminatinn nf wit, nesses; that, according to the law;s and institutions of Rhode Island, no such change had been recognized by the political power; and that the charter government was the lawful and established government of the State during the period in con-■''fest, and that those who were in arms against it were insurgents, and liable to punishment. This doctrine is clearly and forcibly stated in the opinion of the Supreme Court of the State in the trial of Thomas W. Dorr, who was the governor elected under the opposing constitution, and headed the armed force which endeavoured to maintain its authority
Indeed, we do not see how the question could be tried and
It is worthy of remark, however, when we are referring to the.authority of State decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who decided that case held their authority under that constitution; and it is admitted on all hands that it was adopted by the people of the State, and is the. lawful and established government. It is the decision, therefore, of a State court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either, party to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the courts of Rhode Island. The question relates, altogether, to the constitution and laws of that State ; and the well settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern-merely. the constitution and laws of thejState
Upon what ground could the Circuit Court oTthe United States which tried this case have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts of the United States-have certain powers under the Constitution and-Jaws^of-the-United States which do not belong t,o*'the-State courts. Butthe power of determining that a State government has beén^law-fully established, which the courts of the State disown and repudiate, is not one of them. IJpon sucliaquestion the courts of the United States' are bound tcTToHow the decisions of the State tribunals! and must therefore regard the charter government as the lawful and established government during the time of this contest. * """- ‘
And-if the then existing law of Rhodc/Island which confined the right of suffrage to freeholders is to govern, and this question is to be tried by that rule, how could the majority have been ascertained by legal evidence, such as a court of justice might lawfully receive ? The written returns of the moderators and clerks of mere voluntary meetings, verified by affidavit, certainly would not be admissible; nor their opinions or judgments as to the freehold qualification of the persons who voted. The law requires actual knowledge in the witness of the fact ip which he testifies in a court of justice. How, then, could the rqajority of .freeholders have been determined in a judicial proceeding ?
The- court, had not the power to order a census of the freeholders to be taken; nor would the census of the United States of 1840 be any evidence of the number of freeholders in the State in 1842. Nor could the court appoint persons to examine and determine whether- every, -person who had voted possessed the freehold qualification which the law then required. ' In the nature of things, the Circuit Court could not know the name and residence of every citizen, and bring him before the court to be examined. Arid if this were attempted, where would such an inquiry have. terminated ? And how long must the people of Rhode Island have waited to learn from this court under what form of government they were living during the year in controversy ?
But this is not all. The question ■ as to the majority is a question of fact. It depends Upon the testimony of witnesses, and if the testimony offered by the plaintiff had been received, the defendants had the right to offer evidence to rebut it} and there might, and probably would, have been conflicting testimony as to the number of voters- in the State, and as to the legal qualifications of many of the individuals who had voted. The decision would, therefore, have depended upon the rela
Moreover, the Constitution of the United States, as far' as it has provided tor an emergency of this kind, and authorized the general government to interfere in tne domestic concerns ~of a State, has treated the subject as -political in~its natureTand placed the nower m the hands of that department.
-"v The fourth section of the fourth article of the Constitutionof the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence. Under this article of the Constitution it rests with Congress to decide"what government is the established one in a State. For -gsttorUmted States guarantee to each~Sfafe a republican government. Congress must necessarily decide what government is established in the State before it can determine whether it is republican oiTrEot And.when~the senators "and representatives'Of a State are admitted into the councils of the Union,~tholTuthority of the government imder which they are appointedTas well as its republican character, is recognized by--the-pfoper constitutional authority. Anfftts~d5cision'is"binding on every other department of the government, and couk not be questioned in a judicial tribunal. It is true that the cm .test in this case did not last long enough to bring the mat;or -to this issue ; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head,- Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in' the courts.
So, too, as relates to -the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence.
By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the, government cannot alter the case, for both cannot be entitled to it. If t..iere is an armed conflict, like the one of which we are speak-, ing, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President .must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress.
After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right ? Could the court, while the parties were actually contending in arms for the.possession of the government, call witnesses before it and inquire which party represented a majority of the people ? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the. troops in the service of the United States or the government which the President was endeavouring to maintain. If the judicial power extends soJhx^-the guarantee.. contained in the (Jonstiñítimi-of the United States is a guarantee of anarchy, and not of order. Yet ifthis right doesTioTresicie in The, courts when the conflict is raging, if thppñhcial power is at that time bound to follow the, decision_Qf the political, it must be equally bound wheiT~ the contest is overi It cannot, when peace is restored, punish as offences and crimes the acts which it before recognized, and was bound to recognize, as lawful.
It' is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if. placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, arid at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United ■States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him' by the Constitution and laws of the United States,, and must therefore be resDected and enforced in its judicial tribunals.
. A question very similar to this arose in the case of Martin v. Mott,
The remaining question is whether the defendants, acting under military-orders issued under the authority of the government, were justified in breaking and entering the plaintiff’s house. In relation to the act of the legislature declaring martial law, it is not necessary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by a State. Unquestionably a military government, established as the permanent government of the State, would' not be a republican government, and it would be ttie duty of Congress to overthrow it,. . But the- law of "Rhode"Island evidently contemplated no such..government. It whs intended merelyTdr the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the State, authorities. And, unquestionably, a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other- government. The State itself must determine what degree of-force the crisis demands. Andif the government, of Rhode Island deemed the armed opposition so formidable, and so ramified throughout^ the Stqt.e, as to require the use of its military force and the~deciara-' tion of martial law, we see no ground unon which this court can question its authority. It was a state of war; and the established government resorted to the rights and- usages of war to maintain itself, and to overcome the unlawful opposition. And •in that state of things the officers engaged in its military ser
We forbear to remark upon the cases referred to in the argument, in relation to the commissions anciently issued by the kings of England to commissioners, to proceed against certain descriptions of persons in certain places by the law martial. These commissions were issued by the king at his pleasure, without the concurrence or authority of Parliament, and were often abused for the most despotic and oppressive purposes. They were used before the regal power of England was well defined, and were finally abolished and prohibited by the peti-' tion of right in the reign of Charles the First. But they bear no analogy in any respect to the declaration of martial law by the legislative authority of the~State, made for the purposes of self-defence, when assailed by an armed force; and the cases and commentaries concerning these commissions cannot, therefore, influence the construction of the Rhode Island law, nor furnish any test of the lawfulness of the authority exercised by the government.
' Upon the whole, we see -no reason for disturbing the judgment of the Circuit Court. The admission of evidence to prove that the charter government was the established government of the State was.an irregularity, but is not material to the judgment. - A Circuit Court of the United States sitting in Rhode Island is presumed" to know, the constitution and law of the State. And in order to make up its opinion upon that subject, it seeks information from any authentic and available source, without waiting for the formal introduction of testimony to prove- it, and' without- confining itself to the process which the parties mar^ offer. But this error of the- Circuit Court does not affect the result. For whether this evidence was or was not received, the Circuit Court, for the reasons herein before stated, was bound to recognize that government as the paramount ,and established authority of the State.
Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the
The judgment of the Circuit Court must therefore be affirmed.
Rachel Luther v. Luther M. Borden et al.
delivered the opinion of the court. This case has been sent here under a certificate of division from the Circuit Court for the District of. Rhode Island. It appears, on the face of the record^ that the. division was merely formal, and that the whole case has been transferred to this court, and a multitude of points (twenty-nine in number) presented for its decision. We have repeatedly decided that this mode of proceeding is not warranted by' the act of Congress, authorizing the justices of a Circuit Court to certify to the Supreme Court a question of law which arose at the trial, and upon which they differed in opinion. And many cases in which, like the present one, the whole case was certified, have been dismissed for want of jurisdiction. The same disposition must be made of this! The material points, however, have been decided in the case of Martin Luther against the same defendants, in which the opinion of this court' has been just delivered, and which was regularly brought up by writ of error upon the judgment of the Circuit Court. The case before us depends mainly upon the same principles, and, indeed, grew out of the same transaction; and the parties will understand the
This case is removed to the Circuit Court.
Martin Luther v. Luther M. Borden et au.
Dissenting Opinion
dissenting.
The writ in this case charges the defendants with breaking, and entering the plaintiff’s dwelling-house, on the 29th of June, 1842, and doing much- damage.
The plea in justification alleges, that, on June 24th, 1842, an assembly in arms had taken • place in Rhode Island, to overawe and make war upon the State. And therefore, in order to protect its government, the legislature, on the 25th of that month, passed an act declaring the whole State to be under martial law. That the plaintiff was assisting in traitorous designs, and had been in arms to sustain them, and the defendants were ordered by J. Child, an officer in the militia, to arrest the-plaintiff, and, supposing him within the house named'in the writ, to break and enter it for the purpose of fulfilling that order; and, in doing this, they caused as little damage as possible.
The "replication denied all the plea, and averred that the defendants did the acts complained of in their own wrong, and without the cause alleged.
To repel the defence, and in vindication of the conduct of the plaintiff,- much evidence was offered; the substance of which will be next stated, with some leading facts proved on the other- side in connection with it.
The people of Rhode Island had continued to live under ,their charter of 1663 from Charles the Second, till 1841, with some changes in the right of suffrage:by acts of the legislature, but. without any new constitution, and still leaving.in force a requirement of a freehold qualification, for voting. By' the growth of the State in commerce and manufactures, this requirement had for some time been obnoxious; as it excluded so many adult males of personal worth and possessed of intelligence and wealth, though not of land, and as it made the ancient apportionment of . the number of representatives; founded on • real estate, very disproportionate to the present population and personal property in different portions and cowhs of the State.
This led to' several applications to the legislature for a change in these matters, or for provision to. have a convention of the people called to. correct it ■ by a new constitution. These all failing, voluntary scctóties were tried in 184-1.
Political officers for the executive and legislative departments were then chosen under it hy those in its favor, which officers assembled on the 3d of May, 1842, and took their respective oaths of office and appointed several persons to situations under the constitution, and among them the existing judges of the superior court.
After transacting some .other business the next day, — but the old officers in the State under the charter not acknowledging their authority, nor surrendering to them the public records and public property, — they adjourned till July after, and never convened again, nor performed any further official duties. Nor did they institute actions for the possession of the public rec-’ ords and public property; but T. Dorr, the person elected governor, at the head of an armed force, on the 25th of June, .1842, in his supposed official capacity, made some attempt to get possession of -the public arsenal; but failing in it, he dismissed the military assembled, by a written order,-on the 27 th-of June, and left the State. He stated as a reason for this, -“.that a majority of the friends of the people’s constitution disapprove of any further forcible measures for its support.”
In the mean time, the officers under the old charter, having, as before suggested, continued in possession of the public records' and property, and in the discharge of their respective functions, passed an act, on the 24th of June, placing the State under martial law. A proclamation was then issued by the' governor, warning the people not to support the new constitution of its officers, and another act was passed making it penal to officiate under it. An application was made to the President of the United States for assistance in quelling the disturbances apprehended, but was answered by him on the 29th of Mayr 1842, not complying with the request, though with .expressions of willingness to do it, .should it, in his opinion, afterwards bee cne necessary!
Nothing further seems to have been done by him-in the
It was next shown by the respondents, that Dorr, the governor elect under the new constitution, was, in August, 1842, indicted for treason against the State, and being apprehended in 1844, was then tried and convicted.
It further appears that the court, at the trial of the present causé, ruled out the evidence offered by the plaintiff in support of his conduct, and admitted that which went to justify the defendants, and decided that the old charter, and not the new constitution, was in force at the time the act passed declaring martial law, and that this law was valid, and, as pleaded, justified the defendants in their behaviour.
Without entering here at more length intó details concerning the unhappy controversy which agitated Rhode Island in 1842, it is manifest that it grew out of a political difficulty among her own people, in respect to the formation of a new constitution. It is not probable that the active leaders, and much less the masses, who were engagéd on either side, had any intention to commit crimes or oppress illegally their fell-, w-citizens. Such, says Grotius, is usually, in civil strife, the ». ue, liberal view to be taken of the masses. (Grotius on War, B. 3, ch. 11, sec. 6.) And much more is it so, when, in a free country, they honestly divide on great political principles, and do not wage a struggle merely for rapine or spoils.' In this instance each side appears to have sought, by means which it considered lawful and proper, to sustain the cause in which it had embarked, till peaceful discussions and peaceful action unexpectedly ripened into a resort to arms, and brother became arrayed against brother in civil strife. Fortunately, no lives were destroyed, and little property injured. But the bitterness consequent on such differences did not pass off without some highly yienal legislation, and the extraordinary measure of the establishment of martial law over the whole State. Under these circumstances, it is toó much to expect, even at this late day, that a decision on any branch of this controversy can be received without some of the leaven of former political excitement and prejudice, on the one side or the other, by those who were engaged in its stirring scenes. Public duty, however, seems to require each member of this court to speak freely his own convictions on the different questions which it may be competent for us to decide; and when one of those members, like myself, has the misfortune to differ in any respect from the rest, to explain
This difference, however, between me and my brethren expends only to the points in issue concerning martial law. But that being a very important one in a free government, and this controversy having arisen in the circuit to which I- belong, and where the deepest interest is felt in its decision, I hope to be excused for considering that point fully; and for assigning, also, some additional and different reasons why I concur with the rest of the court in_ the opinion, that the other leading question, the validity of the old charter at that time, is not within our constitutional jurisdiction. These tyro inquiries seem to cover the whole debatable ground, and I refrain to give an opinion on the last question, which is merely political, under a conviction'that, as a judge, I possess no right to do it, and not to avoid or conceal' any views entertained by me concerning them, as mine, before sitting on this bench and as a citizen, were frequently and publicly avowed;
It must be very obvious, on a little reflection, that the last is a mere political question. Indeed, large portions of the points subordinate to it, on this record, which have been so ably discussed at the bar, are .of a like character, rather than being judicial in their nature and cognizance. For they extend to the power of the people, independent of the legislature, to make constitutions, — to the right of suffrage among different classes of them in doing this, — to the authority of naked majorities,— and other kindred questions, of such high political interest as during a few years to have agitated much of the Union, no less than Rhode Island.
But, fortunately for our freedom from'political excitements m judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. Thr adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matters not to be .settled on strict legal principles. They are adjusted rather by inclination, — or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. There being so different tastes as well as opinions in politics, and especially in forming constitutions, some people prefer foreign models, some domestic, and some neither; while judges, on the contrary, for their guides, have fixed constitutions and laws, given to them by others, and not provided by themselves. And those others are no more Locke than an Abbé Sieyes, but the people. Judges, for constitutions, must go to the people of then own country*, and must
Another evil, alarming and little foreseen, involved in regarding these as question's for the final arbitrament of judges would be, that in such an event all political privileges and rights would, in a dispute among the people, depend on our decision finally. We would possess the power to decide against as well as for them, and under a prejudiced or arbitrary judiciary the public liberties and popular prif ileges might thus be much perverted, if not entirely prostrated. But, allowing the people to make constitutions and unmake them, allowing their representatives to make laws and unmake them, and without our interference as to their principles or policy in doing it, yet, when constitutions and laws are made and put in force by others, then the courts, as empowered by the State or the Union, commence their functions and may decide on the rights which conflicting parties can legally set up under them, rather' than about their formation itself. Our power begins after theirs ends. Constituí’ons and laws precede the judiciary, and we act only under and after them, and as to disputed rights beneath .them, rather than disputed points in making them. We speak what is the law, jus dicere, we speak or construe what is the constitution, after both are made, but we make, or revise, or control neither. The disputed rights beneath constitutions already made are to be governed by precedents, by sound legal principles, by positive legislation, clear contracts, moral duties, and fixed rules ; they are per se questions of law, and are well suited to the education and habits of the bench. But the other disputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves, and popular will, and arising not in respect to private rights,— not what is meum and tuum, — but in relation to politics, they belong to politics, and they are settled by political tribunals, and are too dear to a people bred in the school of Sydney and Russel for them ever to intrust their final decision, when disputed, to a class of men who are so far removed, from them as the judiciary; a class, also, who might decide them erroneously as well as right, and if in the former way, the consequences might not be able to be averted except by a revolution, while a’wrong decision by a political forum can often be peacefully "corrected by new elections or instructions in a single month. And if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgments as
Hence the judiciary power is not regarded by elementary writers on politics and jurisprudence as a power coordinate or commensurate with that of the people themselves, but rather coordinate with that of the legislature. Kendall v. U. States,
But how would this superiority be as to this court, if we could decide finally on all the political claims and acts of the people, and overrule or sustain them according only to our own views'?. So the judiciary, by its mode of appointment, long duration in .pffice, and slight accountability, is rather fitted to check legislative power than political, and enforce what the political authorities have manifestly ordained. These last authorities are, by their pursuits and interests, better suited to make rules; we, to expound and .enforce them, after made.
The subordinate questions which also arise here in connection with .the others, such as whether all shall vote in forming or amending those constitutions who are capable and accustomed to transact business in social and civil life, and none others; and whether,- in great exigencies of oppression by the legislature itself, and refusal by it to give relief, the people may not take the subject into then: own hands, independent of -the legislar
Non nostrum tantas componer e lites. Where, then, does our power, as a general rule, begin ? In what place runs the true boundary-line? It is here. Let the political authorities admit as valid a constitution made with or without previous provision by the legislature, as in the last situation Tennessee and Michigan were introduced into the Union. (See Federalist, No. 40, and 2 Ell. Deb. 57; 13 Regis by Y. 95,1164, and Cong. Globe, App., 78, 137, 147.) Let the collected will of the people as to changes be so strong, and so strongly evinced, as to call down no bills of pains and penalties to resist it, and no arming of the militia or successful appeals to the general government to suppress it by force, as none were in some cases abroad^ as Avell as in America, and one recently in New York, which might be cited beside those above. (See A. D. 1846, and -opinion of their judges.) In short, let a constitution or law, 'however originating,- be clearly acknowledged by the existing political tribunals, and be put and kept in successful operation. 'The judiciary can then act in conformity to and under them. (Kemper v. Hawkins, 1 Virg. Cas., 74, App.) Then, when the claims of individuals come in conflict under them, it is the true province of the judiciary to decide what they rightfully .are under such constitutions' and laws, rather than to decide whether those constitutions and laws themselves have been rightfully or wisely made.
Again, the - Constitution of the United States enumerates specially the cases over which its . judiciary is to have cognizance, but nowhere includes controversies between the people of a State as to the formation'or change of their constitutions.
If it he asked what redress have the people, if wronged in these matters, unless by. resorting to the judiciary, the answer is, they have the same as in all other political matters. In those, they go to .the ballot-boxes, to the legislature or executive, for the redress of such grievances as are within the'jurisdiction of each, and, for such as are not, to conventions and amendments of constitutions. And when the former fail, and these last are forbidden by statutes, all that is left in extreme cases, where the suffering is intolerable and the prospect is good of relief by action of the people without the forms of law, is to do as did Hampden and Washington, and venture action without those forms, and abide the consequences. Should strong majorities favor the change, it generally is completed without much violence. In most states, where representation is not unequal, or the right of suffrage, is not greatly restricted, the popular will can be felt and triumph through the popular vote and the delegates of the people in the legislature, and will thus lead soon, and peacefully, to legislative measures ending in reform, pursuant to legislative countenance and without the necessity of any stronger collateral course. But when the representation is of a character which defeats this, the action of the people, even then, if by large majorities, will seldom be prosecuted with harsh pains and penalties, or resisted with arms.
Changes, thus demanded and thus supported, will usually be allowed to go into peaceful consummation.. But when not so allowed, or when they are attempted by small or doubtful majorities, it must be conceded .that it will be at their peril,, as they will usually be resisted'by those in power by means of prosecutions, and sometimes by' violence, and, unless crowned by success, and thus subsequently ratified, .¡they will often be punished as rebellious or treasonable.
If the majorities, however, in favor of changes happen to be large, and still those in power refuse to yield to .them, as in the English revolution of 1688, or in our own of 1776, the popular movement will 'generally succeed, though it be only by a union of physical with moral strength; and when triumphant, it will, ás on those occasions, confirm by subsequent forms of law what may have begun without them.
There are several other questions, also, which may arise naá der our, form of government that are not properly of jo
Looking, to all these considerations, it appears to me that we cannot rightfully settle those grave political/ questions- which, in this case, have been discussed in connection with the new constitution; and, as judges, our duty is to take for -a guide the decision made on them by the proper political powers, and, whether right or wrong according to our private opinions, enforce it till duly altered. But it is hot necessary to rest this conclusion on reasoning' alone. Several precedents in this court, as well as in England, show the propriety of it.
In Foster et al. v. Neilson,
In Massachusetts v. Rhode Island,
In Barclay v.' Russel, 3 Ves. 424, in respect to confiscations, it was held to be a political question, and a subject of treaty, and not-of municipal jurisdiction, (p.434.) .
In Nabob of the' Carnatic v. The East India Company, 2 Ves. jun. 56, the court decided that political treaties between a foreign state and subjects of Great Britain, conducting as a state under acts of- Parliament, are not a matter of municipal jurisdiction, and to be .examined and enforced by the*-judiciary, k Another class of political questions, coming still nearer this, ^^Which must be regarded as the rightful government abroad
The doctrines laici down in Palmer’s case are as directly applicable to -this in the’ event of two contending parties in arms in á domestic war as in a foreign. If one is recognized by the executive or legislature of the Union as the de facto government, the judiciary can only conform to that political decision. See also, The Santissima Trinidad,
. This is no new distinction in judicial practice any more than in judicial adjudications. The pure mind of Sir Matthew Hale, after much hesitation, at last consented .to preside , on the bench in administering the laws between private parties under a government established and recognized by other governments, and in full possession defacto of the records and power of the-kingdom, but without feeling satisfied on inquiring, as a
These conclusions are strengthened by the circumstance, that the Supreme Court of Rhode Island, organized since, under the second new constitution, has adopted this principle. In numerous instances, this court has considered itself bound to follow the decision of the State tribunals on their own constitutions and laws. (See cases in Smith v. Babcock, 2 Woodb. &o Min.;
Starting, then, as we are forced to here, with several political qitestions arising on this record, and those .settled, by political tribunals in the State and general government, and whose decisions on them we-possess no constitutional authority to revise, all" which, apparently, is left, for us to ’decide is4he
To decide a point like this last is clearly within judicial cognizance,- it being’ a matter of private personal authority and right, set up by the defendants under constitutions and laws, and not of political power, to act in relation to the making of the former.
Firstly, then, in order to judge properly whether this act of Assembly was constitutional, let us see what was the kincLand character of the law the Assembly intended, in this instance, to establish, and tinder which the respondents profess to have acted.
The Assembly says: — “ The. State of Rhode Island and Providence Plantations is hereby placed under martial law, and the sáme is hereby 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.” Now, .the. words “ martial law,” as here- used, cannot be construed in any other than their legal sense, long known and recognized in legal •precedents as well as political history.. (See it in 1 Hallam’s Const. Hist., ch. 5, p. 258; 1 MacArthur on Courts-Martial, 33. The legislature evidently- meant to be understood in that sense by using words of such well-settled construction, without any limit or qualification, and covering the whole State with its influence, under a supposed exigency and justification for such an unusual course. I do not understand" this to be directly combated in the opinion just delivered by the Chief Justice. That they could mean no . other than the ancient martial law often used before the Petition of Right, and sometimes since, is further manifest from the fact, that they not only declared “ martial ” law to exist over the State, but put their militia into the field to help, by means .of them and' such a law, to suppress the action of those denominated “insurgents,” and this without any subordination to the civil .power, or any efforts in conjunction and in cooperation, with it. The defendants do not aver the existence of any civil precept which they were aiding civil officers to execute, but. set up merely military orders under martial law. Notwithstanding this, however, some attempts have been made at another construction of this act, somewhat less offensive, by considering it. a mere equivalent to the suspension of the habeas corpus, and. 'another still to regard it as .referring only to the military code used in the armies of the United States and England. But when the legislature enacted
Had the legislature meant merely to suspend the writ of habeas corpus, they, of course, would have said that, and nothing more. A brief examination will show, also, that they did not thus intend to put in fojce merely some modern military, code, such as. the Articles of War made by Congress, or those under the Mutiny Act in England. " They do not mention either, and what is conclusive on this, neither would cover or protect them,- in applying the provisions of those laws to a person situated like the plaintiff. For nothing is better settled than that military law applies only to the military; but “martial law” is made here to apply to all'. (Hough on Courts-Martial, 384, note; 27 State Trials, 625, in Theobald Wolfe Tone’s case.)
The present laws for the government of the military in England, also, do not exist in the vague and general form of . martial law, but are explicitly restricted to the military, and are allowed as to them only to prevent desertion arid mutiny, and to preserve good discipline. (1 Bl. Com. 412; 1 MacArthur on Courts-Martial, p. 20.) So, in. this country, legislation as to the military, is usually confined to the. general government, where the great powers of war and peace reside. And. hence, under those powers, Congress, by the act of 1806 (2 Stat. at Large, 359), has created the Articles of War, “by which the armies of the United States shall be governed,” and the militia when in actual service, and only they. ." To show this is not the law by which other than those armies shall be governed, !fc has been found necessary, in order to include merely the d) ivers or artificers “in the service,” and the militia after mus'ered into it, to have special statutory sections. (See articles 96 and 97.) Till mustered together, even the militia are not subject to martial law. (
So it is a settled principle even in England, thát, “ under the British constitution, the military law does in no respect either supersede or interfere with the civil law of-the realm,” and. that “the former is in general subordinate to the latter” (Tytler on Military Law, 365); while “martial law” overrides them all. The Articles of War, likewise, are hot only authorized by permanent. rather than temporary legislation, but they are prepared by or under it with punishments and rules before promulgated, and known and assented' to by those few- who - are subject to them, as operating .under established legal principles and the customary military law of-modern times. . (1 East, 306, 313; Pain v. Willard,
The prosecution of Governor Wall in England, for causing, when he was in military command, a. soldier tó be seized and flogged so that he died, for- an imputed offence not clearly military and by a pretended court-martial without' a full trial, and executing Wall for the .offence after a lapse of twenty years,
How different in its essence and forms, as well as subjects, from the Articles of War was the “ mártial law ” established here over the whole people of Rhode Island, may be seen by adverting to its character for a moment, as described in judicial as yrell as political history. It exposed the whole population, not only to be seized without warrant or oath, and their houses broken open and rifled, and this wheie the municipal law and its officers and courts remained undisturbed and able to punish all offences, but. to send prisoners, thus summarily arrested in a civil strife, to all the harsh pains and penalties of courts-martial or extraordinary commissions, and for all kinds of supposed of-fences. By it, every citizen,-instead of reposing under the shield of known and fixed laws as to his liberty', property, and life, exists with a rope round his neck, subject to be hung up by a military despot at the next lamp-post, under the sentence of some drum-head court-martial. (See Simmons’s Pract. of Courts-Martial, 40.) See such a trial'in Hough on Courts-Mártial, 383, where thp victim on the spot was “ blown away by a gun,” “ neither time, place; nor persons considered.” As an illustration how the passage of such a law may be abused, Queen Mary put it in force in 1558, by proclamation merely, and declared, ' “ that whosoever had in. his possession any heretical, treasonable, or seditious books., and -did not presently burn-them, without reading them or showing them to any other person, should be esteemed a rebel, and without any further delay be executed by the martial law.” (Tytler on Military Law, p. 50, ch. 1, sec 1.)
For convincing reasons like these, in every country which makes any claim tp political or civil liberty, “ martial law,” as here attempted and as once practised in England against her owii people, has been expressly forbidden there for near two centuries, as well as by the principles of every other free constitutional government. (1 Hallam’s Const. Hist. 420.) And it would be not a little extraordinary, if the spirit of our institu-■tutions, both State and national, was not much strongér than in England against the unlimited exercise of martial law over a Whole people, whether attempted by any chief magistrate or even by a legislature.
It is true, and fortunate it is that true, the consequent actual evil in this instance from' this declaration of martial law was smaller than might have been naturally, anticipated. But we 'must be thankful for this, not to the harmless character of the law itself, but rather to an inability to arrest many, or from the
Having ascertained the kind and character of the martial law established by this act of Assembly in Rhode Island, we ask next, how, under the general principles of American jurisprudence in modern times, such a law can properly exist, or be judicially upheld. A brief retrospect of the gradual, but decisive, repudiation of it in England will exhibit many of the reasons why such a law cannot be rightfully tolerated anywhere in this country.
One object of Parliamentary inquiry, as early as 1620, was to check the abuse of martial law by the king which had prevailed'before. (Tytler on Military Law, 502.) The Petition of Right, in the first year of Charles the First, reprobated all such arbitrary proceedings in the just terms and in the terse language of that great patriot as well as judge, Sir Edward Coke, and prayed they might be stopped and never repeated. To this the king wisely replied, — “ Soit droit fait come est desire, — Let right be done as desired.” (Petition of Right, in Statutes at Large, 1 Charles 1.) Putting it in force by the king alone was not only restrained by the Petition of Right early in the seventeenth century, but virtually denied as lawful by the Declaration of Rights in 168SV. (Tytler on Military Law, 307.) Hallam, therefore, in his Constitutional History, p. 420, declares that its use by “ the commissions to try military offenders by martial law was a procedure necessary- within certain limits to the discipline of an army, büt unwarranted by the constitution of this country.” Indeed, a distinguished English judge has since said, that “ martial law,” as of old, now “ does not exist in England at all,” “ was contrary to the constitution, and has been for a century totally exploded.” (Grant v. Gould, 2 Hen. Bl. 69; 1 Hale, P. C. 346; Hale, Com. Law, ch. 2, p. 36;
Lord Coke says, in 3 Inst. 52: — “ If a lieutenant, or other that hath commission of martial authority in time of peace, hang or otherwise execute any man by cojor of martial law, this is murder.” “ Thom. Count de Lancaster, being taken in open insurrection, was by judgment of martial law put to death,” and this, though during an insurrection, was adjudged to be murder, because done in time of peace, and while the courts of law were open. (1 Hallam’s Const. Hist. 260.) The very first Mutiny Act, therefore, under William the Third, was cautious to exonerate all subjects except the military from any punishment by martial law. (Tytler on Military Law, 19, note.) In this manner ■ it has become gradually established in England, that in peace the occurrence of civil strife does not justify individuals or the military or the king in using martial law over the people.
It appears, also, that nobody has dared to exercise, it, in war or peace, on the community at large, in England, for the last century and a half, unless specially enacted by Parliament, in some great exigency and under various restrictions, and ther under the theory, not that it is consistent with bills of rights and constitutions, but that Parliament is omnipotent, and for sufficient cause may override and trample on them all, tempe rarily.
After the civil authorities have become prostrated in particular places, and the din of arms has reached the most advanced stages of intestine commotions, a Parliament which alone furnishes the means of war — a Parliament unlimited in its powers —has, in extremis, on two or three occasions, ventured on martial law beyond the military; but it has usually confined it to the particular places thus situated, limited it to the continuance of such resistance, and embraced in its scope, only those actually in arms. Thus the “ Insurrection Act ” of November. 1796, for Ireland,'passed -by the Parliament of England, extended only • to let magistrates put people “ out of the king’s peace,” and subject to military arrest, under certain circumstances. Even then, though authorized by Parliament, like the general government here, and not a State, it is through the means of the civil magistrate, and a clause of indemnity goes with it against prosecutions in the “ king’s ordinary courts of law.” (Annual Register, p. 173, for A. D. 1798; 1 MacArthur, Courts-Martial, 34.) See also the cases of the invasions by the Pretender in 1715 and 1745) and of the Irish rebellion in 1798. (Tytler on Military Law, 48, 49, 369, 370, App. No. 6, p. 402, the act passed by the Irish Parl.; Simmons’s
•In the Annual Register for 1775, p. 133, June 12th, it may be seen that General Gage issued his proclamation, pardoning all who would submit, except Samuel Adams and John Hancock, and further declaring, “ that, as a stop was put to the due course of justice, martial laxo should take place till the laws were restored to their due efficacy.”
Though the engagements at Lexington and Concord happened on the 19th of April, 1775, though Parliament had in February previous declared the Colonies to be in a state of rebellion (Ibid., p. 247), and though thousands of militia had assembled near Bunker Hill before the 12th of June, no martial law had been- established by Parliament, and not till that day did General Gage, alone and unconstitutionally, undertake, in the language of our fathérs, to “ supersede the course of the common law, and, instead thereof, to publish and order the use and exercise of martial law.” (Ibid., p. 261; Journal of Old Cong., 147, a declaration on 6th July, 1775, drawn up .by J. Dickenson.)
Another of these outrages was by Lord Dunmore, in Virginia, November 7th, 1775, not only declaring all the slaves of rebels free, but “ declaring martial law to be enforced throughout this Colony.” (Annual Register for 1775, p. 28; 4 American Archives, 74.) This was, however, justly denounced by the Virginia Assembly as an “ assumed power, which the king himself cannot exercise,” as it “ annuls the law of the land and introduces the most execrable of all systems, martial law.” (4 American Archives, 87.) It was a return to the unbridled despotism of the Tudors, which, as already shown, one to two hundred years before, had been accustomed, in peace as well as war, to try not only soldiers under it, but others, and by courts-martial rather than civil tribunals, and by no settled laws instead of the municipal code, and for civil offences no less than military ones. (2 Hen. Bl. 85; 3 Instit. 52; Stat. at Large, 1 Charles 1; Tytler on Military Law, passim.)
Having thus seen that “ martial law ” like this, ranging over a whole people and State, was not by our fathers considered proper at all in peace or during civil strife, and that, in the country from which we derive most of our jurisprudence, the king has long been forbidden to put it in force in war or peace, and that Parliament never, in the most extreme cases of rebellion, allows it, except as being sovereign and unlimited in power,
At the outset it is to be remembered, that, if Parliament norv exercises such a power occasionally, it is only under various limitations and restrictions, not attended to in this case, and only because the power of Parliament is by the English constitution considered as unlimited or omnipotént. But here legislative bodies, no less than the executive and judiciary, are usually not regarded as omnipotent. They are in this country now limited in their powers, • and placed under strong prohibitions and checks. (
This court has declared that “ the legislatures are the creatures of the Constitution. They owe their existence to the Constitution. They derive their powers from the Constitution. It is their commission, and therefore all their acts must be conformable to it, or else they will be void.” (Vanhorne’s Lessee, v. Dorrance,
The genius of our liberties holds in abhorrence all irregular inroads upon the dwelling-houses and persons of the citizen,
Again, the act of June 24th, 1842, as an act of-legislation by Rhode Island, was virtually forbidden by the express declaration of principles made by the Rhode Island Assembly in 1798,; and also by the views expressed through the delegates of their people upon adopting the Federal Constitution, dune 16th, 1790. These may be seen in 1 Elliott’s Deb.' 370, declaring, in so many words, “ that every person has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property,” and warrants to search without oath and seizures by general warrant are “oppressive,” and “ ought not to be granted.”
But as these views were expressed in connection with jhe constitution of the general government, though avowed to be the principles of her people generally, and as the doings in 1798 were in the form .of a law, and. not a constitution fit was' subject to suspension or repeal; and hence it will be necessary to-look into the charter to Rhode Island of 1663, her only State constitution till 1842, to see if there be any limitation in that, to legislation'like this, establishing martial law.
So far from that charter, royal as it was in origin, permitting
■ This, so far from countenancing the establishment of martial law in Rhode Island, contrary to the Petition of Right in England and her Bill of Rights,, regulated it by the same restrictions, “as near as may be.” Nor did our Revolution of A. D. 1776 remove that restraint, so far as respects' what was then the body of English laws. For although Rhode Island chose- to retain that charter with this restriction after the Revolution, and madé no new constitution with other limitations till 1842 or 1843, yet probably “ the laws of England ” forbidden to be violated by her legislature must be considered such as existed when the charter Avas granted in 1663, and as continued down to 1776. After that, her control over this country de jure ceasing,- a conformity to any new laws made would not be required. But retaining the charter as the sole guide and limit to her legislature until she formed a new constitution; it seems clear': that her legislature had no right, on the 25th of June, 1842, to put the whole State under martial law by any act of Parliament in force in England in 1663 or in 1776, because none such was then in force there, nor by any clause whatever in her charter, as will soon be shown, nor by any usages in her history, nor by any principles which belong to constitutional, governments or the security of public- liberty.
To remove all doubt on this subject, the charter does expressly allow “ martial law ” in one way and case to be declared, and thug impliedly forbids it in any other. Expressio unius est exclúsio alterius. But so far from the martial law allowed by it being by permission of the legislature and over the whole State, it was to be declared only in war Avaged against a public enemy, and then by the “ military officer ” appointed to command the troops so engaged; and then not over their whole territory. and all persons and cases, but he was to “ use and exercise the law martial in such cases only as occasion shall necessarily require.” (p. 15.)
Even this power, thus limited, as before shown, related to the troops of the State, and those liable to serve among them in an exigency, and Avhen in arms against an enemy. They did not touch opponents, over whom they could exercise only the municipal laws if non-combatants,- and only the laAV of nations and belligerent rights when in the field, and after war or-rebellion is recognized as existing by the proper authorities. Again, it would be extraordinary indeed if in England
- Beside this, it may well be doubted'whether, in the nature of the legislative power in this country, it can be considered as any where rightfully Authorized, any moré than the executive, to suspend or abolish the whole securities of person and property at its pleasure;. and whether, since the Petition of Right was granted, it has not been considered as unwarrantable for •any British or American legislative body, not omnipotent in theory like Parliament, to establish in a whole country an unlimited reign of martial law over its whole population; and whether to do this is not breaking up the foundations of all sound municipal rule, no less than social order, and restoring the reign of the strongest, and making mere physical force the test of right.
All our social usages and political education; as well as our constitutional checks,, are the other way. It would be alarming-' enough to sanction here an unlimited power, exercised either by legislatures, or the executive, or courts, when all our governments are themselves governments of limitations and checks, and of fixed and known laws, and the people a race above all others jealous of encroachments by those in power. And it is far better that those persons should be without the protection of the ordinary laws’ of the land who disregard them in an emergency, and should look to a grateful country for- indemnity and pardon, than to allow, beforehand, the whole frame of jurisprudence to be overturned, and every thing placed at the mercy of the bayonet.
No tribunal or department' in our system of governments ever can be lawfully authorized to-dispense.with the laws, like some of the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole body of them ; or, in other words, appoint an unrestrained military dictator at the head of armed men.
Whatever stretches of such power may be ventured on in great crises, they cannot be upheld by the laws, as they prostrate the laws and ride triumphant over and beyond them,
In short, then, there- was nothing peculiar in the condition of Rhode Island as to a Constitution in 1842, which justified her legislature in peace, more than the legislature of any other State, to declare martial law over her whole people; but there was much in her ancient charter, as well as in the plainest principles of constitutional liberty, to forbid it. Considering this, then, and that some cases already cited show that domestic violence is still to be regarded, not as a state of war, giving belligerent rights, but as conferring only the powers of peace in a State, through its civiLauthorities, aided by its militia, till the general government interferes and recognizes the contest as a war, this branch of our inquiries as to martial law would end here, upon my view of the pleadings,, because the defendants justify under that law, and because the State legislature alone possessed no constitutional authority to establish martial law, of this kind and to this extent, over her people generally, whether in peace or civil strife. But some of the members of this court seem to consider the pleadings broad enough to cover the justification, under some rights of war, independent of the act of -the Assembly,, or, as the opinion just read by the Chief Justice seems to imply, under the supposed authority of the State, in case of domestic insurrection like this, to adopt an act of martial law over its whole people, or any witr measure deemed necessary by its legislature for the public safety.
It looks, certainly, like pretty bold doctrine in a constitutional government, that, even in time of legitimate war, the legislature can properly suspend or abolish all constitutional restrictions, as martial.law does, and lay all the personal and political rights of the people at their feet. But bolder still is it to justify a claim to this tremendous power m any State,- or in .any of its officers, on the occurrence merely of Some domestic violence- -
We have already shown,that, in this last event, such a claim
. The judgment which the court has pronounced in .this case seems to me, also, to be rested, not on any right of this kind in peace, but, on the contfary, to uphold the act of martial law only as a war measure. But the grounds have not been shown, to my conviction, for supposing that war and war measures, and the rights of war, existed legally in Rhode Island when this act passed. And, finally, it seems to me that the insurrection then existing was not in a stage of progress which would justify any mere belligerent rights; but if any, it was such rights in the general government, and not in the legislature of the State, obtained, too, by mere implication, and, as to so formidable a measure as this, operating.so loosely and recklessly over all its own citizens. '
It is admitted that no war had duly been declared to exist, either by Rhode Island or the United States, at the time this war measure was adopted, or when the trespass under.it was committed. Yet, had either wished to exercise any war powers, they would have been legalized in .our political system, not by Rhode Island, but the general government. (Constit., Art. 1, sec. 8 ; 3 Story’s Com. on Const., <§><§. 215, 217; 1 Bl. Com. by Tucker, App., p. 270.)
. It. may not* be useless to refresh our ' minds a little on this subject. ' The Constitution expressly provides that “the Congress shall have power to declare war.” (Art. 1, sec. 8.) This is riot the States, nor the President, and much less the legislature of a State. Nor is it foreign war alone that Congress is to declare, but “war,” — war of any' kind existing legitimately or according to the law of nations. Because Congress alone, and not the States, is invested with power to use the great means for all wars, — “ to raise and support arinies,” “ to provide and maintain a navy,” “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and -repel invasions,” and “ to provide for organizing, arming, and disciplining the militia.” The largest powers of taxation, too, were conferred on Congress at the same time, and in part for this cause, with authority to borrow money on the credit of the Union, and to dispose' of the public lands. But the States, deprived of these means, were at the same time .properly relieved from the duty of carrying on war themselves, civil or foreign, because they were not required to incur ex
This accorded with the sixth and ninth articles of the old Confederation, which vested in it exclusively the power to declare war, and took the power of waging it from the States, unless in case of sudden attacks by Indians-or pirates, or ufiless actually invaded by enemies, or in such imminent danger of it that time cannot be had to consult Congress. (1 Laws of U. S., 15, 16, Bioren’s ed.)
No concurrent or subordinate' power is, therefore, left to the States on this subject, except by occasional and special consent of Congress, which is not pretended to have been given to Rhode Island; or unless “ actually invaded ” by some enemy, which is not pretended here; or unless “ in such imminent danger as will not admit of delay,” which matifestly refers to danger from a foreign enemy threatening invasion ; or from Indians and pirates. Another circumstance to prove this, beside
It is impossible to mistake the intention in these provisions, and to doubt that substantially the same intention was® embodied by restrictions in the present Constitution, similar in terms, though not entering into so great details. What is, however, decisive as to this intent in the Constitution is the action on it by the second Congress, only a few years after,, and of which some were members who aided in framing the-Constitution itself. That Congress, May-2d, 1792, authorized foree to be used by the President to aid in repelling the invasions here referred to in the Constitution, and they are described in so many words, as “ shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.” (1 Stat. at Large, 264.) So again .in the act of Feb. 28, 1795 (1-Stat. at Large, 424), and still further sustaining this view, the power to aid in suppressing insurrections in a State is given in a separate section, showing that they were not deemed the invasions and the. “imminent danger” of them expressed in different sections of the act of Congress as Avell as of the Constitution. • If, however, this “ imminent danger ” could, by any stretch of construction, be considered broader, it did not exist here so as to prevent “ delay ” in applying to the President-first ; because, in truth, before martial law was declared, time had éxisted to make application to Congress and the President, and both had. declined to use greater force, or to declare war, and the judicial tribunals of the State were still unmolested in
Whoever, too, would justify himself under an exception in a law or constitution, must- set it up and bring his case within it, neither of which is attempted here as to this exception; but the justification isj on the contrary, under this head, placed by ■ the defendant and the court on the existence of war, and rights consequent on its existence.
Some mistake has arisen here, probably, from not adverting to the circumstance, that Congress alone can', declare war, and that all other conditions of violence are regarded by the Constitution as but ordinary cases of private outrage, to be punished by prosecutions in the courts; or as insurrections, rebellions, or domestic violence, to be put down by the. civil authorities, aided by the militia; or, when these prove' incompetent, by the general government, when appealed to by a State for aid, and matters appear to the general government .to have reached the extreme stage, requiring more force to sustain the civil tribunals of a State, or requiring a declaration of war, and the exercise of all its extraordinary rights. Of these last, when applied to as here, and the danger has not been so imminent as to prevent an application, the general government must be the judge, and the general government is responsible for the consequences. And when it is asked, what shall a State do, if the general government, when applied to, refrains to declare war till a domestic force becorhes very formidable, I reply, exert all her civil .power through her judiciary and executive, and if these fail, sustain them by her militia, cooperating, and not independent, and if these iail, it is quite certain that the general government will never hesitate to strengthen the arm of the State when too feeble in either of these modes to preserve public order. And how seldom this will be. required of the general government, or by means of war, may be seen by our unspotted, unbroken experience of this kind, as to the States, for half a century, arid by the obvious facts, that no oc, ision can scarcely ever, in future, arise for such interference, -''hen the violence, at the utmost, must usually be from a minority of one State, and in the face- of the larger power of the majority within it, and of the cooperation, if need be, of the whole of the. rest of the Union.
Carry these constitutional provisions with us, and the facts which have existed, that there had been no war declared by Congress, no actual invasion of the State by a foreign enemy, no imminent danger of it, no emergency of any kind,
Under all these circumstances, then, to imply a power like this declaration of martial law over a State as still lawfully existing in its legislature would be to imply what is forbidden by all constitutional checks, forbidden by all the usages of free governments, forbidden by an exclusive grant of the war power to Congress, forbidden by the fact that there were no exceptions or exigencies existing here which-could justify it, and, in short, forbidden by the absence of any necessity in our system for a measure so dangerous and unreasonable, unless in some great extremity, if at all, by the general government, which alone holds the issues of war and the power and means of waging it.
Under these views and restrictions, the States have succeeded well, thus far, — over half a century, — in suppressing domestic
As before shown, such an appeal had been made here, but not complied with, because, I presume, the civil authority of the State, assisted by its own militia, did not appear to have failed to overcome the disturbance. How, then, let me ask-, had the State here become possessed of any belligerent rights ? how could it in any way be possessed of them, at the time of the passage of the act declaring, martial law, or even at the time of the trespass complained of? Iam unable to discover. Congress, on this occasion, was in session, ready to act-when proper and as proper, and it alone could, by the Constitution, declare war, or, under the act of May 2d, 1792, allow the militia from an adjoining State to be called out. (1 Stat. at Large, 264.) But Congress declared no war, and conferred no rights of war. The act of Feb. 28th, 1795 (1 Stat. at Large, 424), seems to be made broader as to the power of the President over all the militia, and, indeed^ over the regular troops, to assist on such an occasion, by another act of March 3d, 1807 (2 Stat. at- Large, 443). But the President, also, did nothing to cause or give belligerent rights to the State. He might, perhaps, have conferred some such rights on the militia, had he called them out, under the' consent of Congress; but it would.be unreasonable, if not absurd, to argue that the President, rather than Congress, was thus empowered to declare wax, or that Congress meant to construe such insurrections, and the means used to suppress them, as wars; else Congress itself should in each case pronounce them so, and not intrust so dangerous a measure to 'mere executive discretion. But he issued no orders or proclamations. Had he done so, and marched troops, through the action of the Executive under
When the President issues his orders to assemble the militia to aid in sustaining the civil authorities of the State to enforce the laws, or to suppress actual array and violence by counter force, obedience to those orders by the militia then undoubtedly becomes a military duty. (
Under our present Constitution, the first, if not nearest, precedent in history as to'the course proper to be followed in any State insurrection is Shays’s rebellion in Massachusetts. Having occurred in 1787, before the formation of the Federal Constitution; and having been suppressed by the State alone under its own independent authority (Minot’s fílstory of Shays’s Insurrection, p. 95), it was untrammelled by any of the provisions now existing about war and insurrections in that Constitution. But the course pursued on that occasion is full of instruction and proof as to yrhat was deemed the legal use of the militia by the State, when thus called out, under the old Confederation, and the extent of the rights of force incident to a State on a rebellion within its limits. We have before shown that the provisions in the old Confederation as to war were much the same. in substance as in the present Constitution. Now, in Shays’s rebellion the resort was hot first had at all to the military, but to civil power, till the courts themselves were obstructed and put in jeopardy. And when the militia were finally called out, the whole State, or any part of it, was not ■put under martial law. The writ of habeas corpus was merely suspended for a limited time, and the military ordered to aid in ’making arrests Under warrants, and not by military orders, as here. They were directed to protect civil officers in executing their duty, and nothing more, unless against persons when ¿c-tually in the field obstructing them. (Ibid. 101.)
The language of Governor Bowdoin’s orders to Major-General Lincoln, January 19th, 1787, shows the commendable caution deemed legal on such an occasion : — “ Consider yourself in all your military offensive' operations constantly as under the direction of the civil officer, saving where any-armed force shall appear and oppose your marching to execute these orders.”
This gives no countenance to the course pursued on this occasion, even had it been attempted to be justified in the pleadings as a right of war, though' in a domestic -insurrection, and not yet recognized as existing so as to require countenance and assistance through' the interposition of force by the general government. Even. General Gage did not, though illegally, venture to declare martial law in 1775 till the fact occurred, as he averred, that the municipal laws could not be executed: Much less was it unlikely here that these laws could not have
In substantial accordance with these views was, likewise, the conduct of the general- government in the insurrection against its own laws in the only other case of rebellion of much note, except the controverted one of Burr’s, in our national history. It was in Western Pennsylvania, in 1793, and where the rebellion, or violent resistance, and even treason, as adjudged by the courts of law in The United States v. The Insurgents of Pennsylvania,
So far, however, from martial law having then been deemed proper or competent to be declared by Congress, and enforced anywhere, or even the writ of- habeas corpus suspended, the troops were called out expressly to cooperate with - the civil authorities, these having proved insufficient. (-Findley’s Hist., App. 316,317.) But that of itself did not seem to be considered-as per-se amounting to war, or as justifying war measures. The government, therefore, neither declared war, nor waged it without that declaration, .but did what seems most humane and fit on such occasions, till greater resistance and bloodshed might render war measures expedient; that is, marched the troops expressly with a view only to “ cause the laws to be duly executed.”
Nor was this done till Judge Peters, who officiated in that district in the courts of the United States, certified that he had issued warrants which the marshal was unable to execute, without military aid. (1 .American State Papers',' 185.) The acts of Congress then required such a certificate, before allowing the militia to be called out. (1 Stat. at Large, 264.) The marshal also wrote, that he needed “military aid.”' (1 Am. State Papers, 186.) The additional force, authorized by Congress, was expressly for that same purpose, as well as to suppress such combinations. (1 Stat. at Large, 403.) And though with these objects, so fully did it seem proper to reach this last one by means of the first, the orders in the field were to a like effect, and the arrests made were-by authority of the civil officers, and those seized were carried before- those authorities for hearing and trial. (Findley, 181.)
The -Secretary of War, likewise, issued public orders, in which, among other things, it is stated, that “ one object of the expedition is to assist the marshal of the district to make prisoners,” &c. “ The marshal of the District of Pennsylvania will move with you and give you the names of the offenders, their
The- President, throughout the excitement, evinced the characteristic moderation and prudence of Washington, constantly enjoined. a subordination of the military to the civil power, and accompanied the troops in person to see that the laws were respected. (Findley’s- History of the Western Insurrection, p. 1-44.) “ He assured us,” says Findley (p. 179), “ that the army should hot consider themselves as judges or executioners of the laws, but as employed to support the proper authorities in the execution of them.” That he had issued orders “for the subordination of the army to.the laws.” (p. 181.) This was in accordance with the course pursued in England on some similar occasions. (1 MacArthur on Courts-Martial, 28.) • And though some arrests were to be made, fhey were to be in a legal civil form, for he said, “ Nothing remained to be done by them but to support the civil .magistrate in procuring proper subjects to atone for the outrages that had been committed.” (Findley, 187.). The orders or warrants executed seem to have emanated from the federal judge of the Pennsylvania District. (pp. 200, 201, 204, ch. 16.)
The arrests in 1805 and 1806, in what is called Burr’s conspiracy,'furnish another analogy and precedent. They were, not made till an oath and warrant had issued, .except in .one or two cases. And in .those the prisoners were immediately discharged, as illegally arrested, as soon- as writs of habeas corpus could be obtained and enforced. By the Constitution, (Art. 3, sec. 9,) “ the -privilege of the writ of habeas corpus; shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.” ,
And Congress then declined to suspend that writ, much less to declare martial law) even where the supposed rebellion existed. ,Nor was the latter done by the States, in the rebellions of 1787 and 1794, as before explained, but. merely the writ of habeas corpus suspended in one of them. It is further- characj teristic of the jealousy of our people over- legislative action,, Jg, suspend the habeas corpus, though expressly allowed by the Constitution, that, after a bill to do it in 1807 seems to have passed the Senate of the United States, through all its readings in one day, and with closed' doors, the House of Representatives rejected it, on the first reading; by a vote of 113 to 19. (See the Journals of the two Houses, 25th and 27th
So, though a rebellion may have ■ existed in Burr’s case in the opinion of the Executive, and troops had been ordered out to assist in executing the laws and in' suppressing the hostile array, this court held that an arrest by a military officer of one concerned in the rebellion, though ordered by the Executive, was not valid, unless he was a person then actually engaged in hostilities, or in warlike array, or in some way actually abetting those who then were so. (Bollman and Swartóut’s case, 4Cranch, 75, 101, 126; 1 Burr’s Tr. 175.) And if an arrest was made without an order of the commander-in-chief, the court would discharge at once. (Alexander’s case, 4 .Cranch, 75, 76, in note.) It should also be by warrant, and on oath; and, in most cases, these were then resorted to by General Wilkinson. (Annual Register for 1807, p. 84.) And so jealous were the people then oi) abuses, that a neglect by him of obedience to the requisitions of the habeas corpus, in some respects, led ‘ to a' presentment against his conduct by the grand jury of .New Orleans. (Annual Register for 1807, p'. •98.) But here no actual arrest was made, though attempted, and, what was less justifiable, without oath or warrant the house was broken into,, and hence any justification by martial law failing which might be set up for the former would seem more clearly to fail for the latter. Certainly it must
This doctrine of their failing is familiar in municipal law in breaking houses to seize persons and property on legal precept, whén none are found there liable to be seized. (5 Coke, 93, a; Bac. Abr. Execution, W.)
In civil dissensions, the case stands very differently from foreign ones. In the latter, force is the only weapon, after reason and négotiation have failed. In the former, it is not the course of governments, nor their right, when citizens are unable to convince each other, to fly at once to arms and military arrests and confiscations. The civil power can first be brought to bear upon these dissensions and outbreaks through the judiciary, and usually can thus subdue them.
All these principles, and the precedents just referred to, show that the course rightfully to be pursued on such unfortunate occasions is that already explained; first resorting to municipal precepts, next strengthening them by cooperation of the militia if resisted, and then, if'the opposition are in- battle' array, opposing, the execution of such precepts, to obtain further assistance, if needed, from the general government to enforce them, and. to seize and suppress those so resisting in .. aual array against the State.
But affairs must advance to this extreme stage <gh all intermediate ones, keeping the military in strict subordination to the civil authority except when acting on its own members, before any rights of mere war exist or. can override the. community, .and then, in this country, they must do that under, the countenance and controlling orders of the general government. ‘ Belligerent measures, too, must come, not from subordinates, but from those empowered to command, and be commensurate only' with the opposing array, — the persons, places, and causes where resistance flagrante bello exists of the reckless character justifying violence and a disregard of all ordinary securities and laws. It is not a little desirable that this doctrine should prove to be the true one, on account of its greater tendency to secure orderly and constitutional liberty instead of rude violence, to protect rights by civil process rather than the.bayonet, and to render all domestic outbreaks less bloody and devasting than they otherwise would be.
There having been, then, no rights of war on the part of the State when this act of Assembly passed, and certainly none which could justify so extreme a measure as martial law over the whole State as incident to them, and this act being otherwise unconstitutional, the justification set' up under it must, in
But if I err in this, and certain rights of Avar may exist with one of our States in a civil strife like the present, in some extreme stage of it, independent of any act of Congress or the President recognizing it, another inquiry would be, whether, in the state of affairs existing at this time, such rights had become perfected, and were broad enough, if properly pleaded, to cover this measure of martial law over the Avhole State, and the acts done under it, in the present instance. The necessities of foreign Avar, it is conceded, sometimes impart great powers as to both things and persons. But they are modified by those necessities, and subjected to numerous regulations of national law and justice, and humanity. These, when they exist in modern times, while allowing the persons who conduct war some necessary authority of an extraordinary character, must limit, control, and make its exercise under certain circumstances and in a certain manner justifiable or void, with almost as much certainty and clearness as any provisions concerning municipal authority or duty. So may it be in some extreme stages of civil war. Among these, my impression is that a state of war, Avhether foreign or domestic, may exist, in the great perils of which .it is competent, under its rights and on principles of national law, for a commanding officer of troops under the controlling government to extend certain rights of war, not only over his camp, hut its environs and the near field of his military operations. (6 American Archives, 186.) ^ But no further, nor wider. (Johnson v. Davis et al.,
But in civil strife they are not to extend beyond the place where insurrection exists. (
Considerations like these show something in respect to the extent of authority that could have been exercised in each of these cases as a belligerent right, had war been properly declared before and continued till that time (6 American Archives, 232), neither of which seems to have been the case. It is obvious enough that, though on the 24th of June,, five days previous, Luther had been in arms át Providence, several miles distant, under ,the governor appointed under the new constitution, in order to take possession of some of the public property there, and though in the record it is stated that the defendants offered to prove he was at this time in arms somewhere, yet, the fact not being deemed material under the question of martial law, on which the defence was placed, it does hot seem to have been investigated. How it might turn out can be ascertained only on a new trial. ■ But to show it is not uncontroverted, the other record before us as to this transaction states positively that' Mrs. Luther offered to- prove there was no camp nor hostile array by any person in the town .where this trespass was committed, on the 29th* of June., nor within twenty-five miles of it in any part of the State, and that Dorr had, on the 27th instant, two days previous, published a statement against “any further forcible measures ” on his part, and directing that the military “be dismissed.”
The collection which had there happened, in relation to the disputed rights as to the public property under the new constitution, seems to have been-nothing, on the evidence, beyond a few hundreds of persons, and nothing beyond the control of the courts of law, aided by the militia, if théy had been wisely resorted to, —nothing which, when represented to the Executive of the United States, required, in his opinion, from its apprehended extent or danger, any war measures, — the calling out of the militia of other States, or aid of the public troops, or even the actual issue of a proclamation; and the persons ■ who did.assemble had; it appears, two days before the trespass, been disbanded, and further force disclaimed,, without, a gun being fired, or blood in any way shed, on that occasion.
It is to be hoped we have some national ambition and pride, under our boasted dominion of law and order, to preserve them by law, by enlightened and constL_:' ~nal law, and the moderation of superior intelligence and civilization, rather than by appeals to any of the semibarbarous measures of darker ages, and the unrelenting, lawless persecutions of opponents in civil strife which characterized and disgraced those ages.
Again, when belligerent measures do become authorized by extreme resistance, and a legitimate state of war exists, and civil authority is prostrate, and violence and bloodshed seem the last desperate resort, yet war measures must be kept within certain restraints in all civil contests in all civilized communities.
. “The common laws of war, those maxims of humanity,, moderation, and honor/'’ which should characterize other wars, Yattel says (B. 3, ch. 8, sec. 294 and 295), “ought to be observed by both parties in every civil war.” Under modern and Christian civilization, you cannot needlessly arrest or make war pn husbandmen or mechanics, or women and children. (Yattel, B. 3, ch. 8, sec. 149.) The rights of war are against enemies, open and armed enemies, while enemies and during war, but no longer. And the force used then is not to exceed the exigency, — not wantonly to injure private property, nor disturb private dwellings and their peaceful inmates. (Yattel, B. 3, ch. 8, sec. 148.) Much will be allowed to- discretion, if manifestly exercised with honesty, fairness, and humanity. But the principles of the common law, as opposed to trials without a jury; searches of houses and pápers without oath or warrant, and all despotic invasions on private personal liberty, — the. customary usages to respect the laws of the lend except where a great exigency may furnish sufficient excuse, — should all. limit this power, in many respects,'in practice. (2 Stephens on Laws of England, 602.) The
The Irish Rebellion Act, as to martial law, was expressly limited “from time to time during the continuance of the said rebellion.” (Tytler on Military Law, 405.) And in case of a foreign war it- is not customary to make prisoners and arrest enemies after the war has ceased and been declared abandoned, though the terms of peace have not been definitely settled. And if any of,them voluntarily, like Bonaparte, abandon the contest, or surrender themselves as prisoners, "the belligerent right to continue to imprison them after the war is at an end,' much less to commit violence, as here, on others, with a view to capture them, is highly questionable, and has been very gravely doubted. (Vattel, B. 3, ch. 8, sec. 152, 154.) Circumstances like these make the rule of force and violence operate only to a due extent and for a due time, within its appropriate sphere, and secure beyond that extent and time the supremacy of the ordinary laws of the land. Much more in a social or civil war, a portion of the people, where not then in arms, though differing in opinion, are generally to be treated as noncombatants, and searched for and arrested, if at all, by the municipal law, by warrant under oath, and tried by a jury, and not by the law martial. ~
Our own and English history is full of such arrests and trials, and the - trials are held, not round a drum-head or cannon, but in halls of justice and under the forms of established jurisprudence. (See State Trials, passim.) The writ of habeas corpus, also, unless specially suspended by the legislature hav
To conclude, it is manifest that another strong evidence of the control over military law in peace, and over these belligerent rights in civil strife, which is proper in a bold and independent judiciary, exists in this fact, that whenever they are carried beyond what the exigency demands, even in cases where some may be lawful, the sufferer is always allowed to resort, as here, to the judicial tribunals for. redress. (4 Taunt. 67, and Baily v. Warder, 4 Maule & Selw. 400. See other cases before cited.)
Bills or clauses of indemnity are enacted in England, otherwise officers would still oftener be exposed to criminal prosecution and punishment for applying either belligerent rights or the military law in an improper case, or to an excess in a proper case, or without probable, cause. (1 MacArthur on Courts-Martial, 33, 34Tytler on Military Law, 49 and 489 ; see last act in Appendix to Tytler and Simmons.) And when in an insurrection an opponent or his property is treated differently from what the laws and constitution, or national law, sanction, his remedy is sacred in the legal tribunals. And though the offender may have exposed himself to penalties and confiscations, yet he is thus not to be deprived of due redress for wrongs committed on himself.
The plaintiff in one of these records is a female, and was not at all subject to military duty and laws, and was hot in arms as an opponent .supporting the new constitution. And if the sanctity of domestic life has been violated, the castle of the citizen broken into, or property or person injured, without good cause, in either case a jury of the country should give damages, and courts are bound to instruct them to do so, unless a justification is made out fully onreorrect principles. This can and should be done without any vindictive punishment, when a party appears -to have acted" under a supposed legal right. And, indeed,, such is the structure of our institutions, that officers, as well as others, are often called on to risk much in behalf of the public and of the country in time of peril. And if they appear to do it from patriotism, and with proper decorum and humanity, the legislature will, on application, usually indemnify them by d charging from the public treasury the amount recovered for any injury to individual rights. In this very case, therefore, the defence seems to be by the State, and at its expense. It shows the" beautiful harmony of our system, not" to let private damage be suffered wrongfully without redress, but, at the same time, not to let a public agent suffer;
The judgment should, in this view, be reversed; and though it is very doubtful whether, in any other view,-as by the general rights of war, these respondents can justify their conduct on the facts now before us: yet they should be allowed an opportunity for it, which can be granted on motion below to amend the pleas in justification.
Orders.
Martin Luther v. Luther M. Borden et al.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this cour.t, that the judgment of the said Circuit Court in this cause be and the same is hereby, affirmed, with costs.
Rachel Luther v. Luther M. Borden et al.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island, and on the questions and points on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, and it appearing to this court, upon an inspection of the said transcript, that no point in the case, within the meaning of the act of Congress, has been certified to this court, it is thereupon now here ordered and decreed by this court, that . this cause be and the same is hereby dismissed, and that this cause be and the same is hereby remanded to the- said Circuit Court to be proceeded in according to law.