Luther v. Borden et al.

I., pp. 17, 21, 25, 415, 417, 418, 420, Vol. II., p. 128, Vol. III., pp. 277, 278, 299, 447; Federalist, No. 22, p. 87, No. 39, p. 154, No. 40, p. 158, No. 46, p. 188; Virginia Deb. of 1788, pp. 46, 65, 69, 79, 187, 230, 248, 313; Chisholm v. Georgia, 2 Dall., 448 (Iredell), 454, 457, 458 (Wilson), 470-472 (Jay), 304 (Patterson); Vanhorne's Case, 3 Dall., 93 (Iredell); Doane's Case, 3 Dall., 93 (Iredell); 1 Tuck. Bl. Com., App., pp. 4, 9, 10; 1 Cranch, 176; Rayner's Life of Jefferson, pp. 377, 378; *John Taylor, of Car., pp. 412, 413, 489, 490; 4 Wheat., p. 404 (Marshall); Rawle on the [*23 Const., p. 17; 1 Story, Com. on the Const., pp. 185, 186, 194, 195, 198-300; Virginia Convention of 1829, 1830; Admission of Michigan (Buchanan, Benton, Strange, Brown, Niles, King, Vanderpoel, Toucey); Everett's Address, p. 4; 4 Elliott's Deb., 223; R. I. Declaration of Rights, Art. 2 and 3.

4th. The right of the people to establish government. Sydney, Locke, Burgh (cited ante); Dec. of Amer. Ind.; Wash. Farewell Ad.; Virginia Convention of 1775; Roger Williams; Wilson; The Federalist; Virginia Deb. of 1778; 2 Dall.; 1 Tuck. Bl. Com., App.; 1 Cranch; Rayner's Life of Jefferson; John Taylor, of Caroline; 4 Wheat.; Rawle on the Constitution; 1 Story, Com. on Const.; Virginia Convention of 1829, 1830; Admission of Michigan; 2 Elliott's Debates, 65 (Pat. Henry).

5th. The mode in which the right may be exercised.

The English authors already cited, although they all assert the right of the people to change their form of government as they please for their own welfare, do not in any instance come nearer to pointing out any specific mode of doing it than by saying that "they may meet when and where they please, and dispose of the sovereignty, or limit the exercise of it."*

Sydney on Government, ch. 3, § 31, p. 399.

In the Virginia Declaration of June 12, 1776, Art. 3, they say it may be done "in such manner as shall be judged most conducive to the common weal."

Declaration of American Independence; Wilson's Works, Vol. I., pp. 17, 21, 418, 419, Vol. III., p. 293; Federalist, No. 21, p. 78, No. 39, p. 154, No. 40, p. 158, No. 43, p. 175; Virginia Convention of 1788, 2 Elliott's Deb., pp. 46, 65, 67; 2 Dall. Rep., p. 448 (Iredell), p. 464 (Wilson, Jay); 1 Tuck. Bl. Com., part 1, p. 89, n.; Appendix, pp. 92-94; Rayner's Life of Jefferson, pp. 377, 378; 4 Wheat., p. 404 (Marshall);

*For the reason, see Madison, 2 Ell. Deb., 95, and Pinckney, 4 Ell. Deb., 319, that for our system "we cannot find one express example in the experience of the world."

Luther v. Borden et al.

Rawle on the Const., p. 17; 1 Story, Com. on the Const., pp. 198, 300, 305, 306; Virginia Convention of 1829, 1830, p. 195.

The anti-republican doctrine that legislative action or sanction is necessary, as the mode of effecting a change of State government, was broached for the first time, under the United States government, by one Senator in the debate in Congress upon the admission of Michigan, December, 1846. See Congressional Globe and Appendix for 1836, 1837. *24] It was opposed in the Senate by Mr. Buchanan, pp. 75,

147, Mr. Benton, pp. 78, 79, Mr. Strange, p. 80, Mr. Brown, p. 81, Mr. Niles, pp. 82, 83, Mr. King, p. 85; in the House by Mr. Vanderpoel, p. 131, Mr. Toucey, p. 185.

See Kamper v. Hawkins, 1 Va. Cas., 28, 29, 36, 37, 46, 47, 50, 51, 57, 58, 62, 64, 65, 67-74.

The instances of Tennessee, Michigan, Arkansas, and the recent case of New York.

So far as the foregoing authorities are proof of any thing they establish the following positions, viz. :

1. That in the United States no definite, uniform mode has ever been established for either instituting or changing a form of State government.

2. That State legislatures have no power or authority over the subject, and can interfere only by usurpation, any further than, like other individuals, to recommend.

3. That the great body of the people may change their form of government at any time, in any peaceful way, and by any mode of operations that they for themselves determine to be expedient.

4. That even where a subsisting constitution points out a particular mode of change, the people are not bound to follow the mode so pointed out; but may at their pleasure adopt another.

5. That where no constitution exists, and no fundamental law prescribes any mode of amendment, there they must adopt a mode for themselves; and the mode they do adopt, when adopted, ratified, or acquiesced in by a majority of the people, is binding upon all.

6th. When and by what act does a State constitution become the paramount law?

A constitution, being the deliberate expression of the sovereign will of the people, takes effect from the time that will is unequivocally expressed, in the manner provided in and by the instrument itself.

The Constitution of the United States became the supreme

Luther v. Borden et al.

law upon its ratification by nine States, in the mode pointed out by the Constitution itself.

A similar rule of construction has been adopted by the several States ever since.

Constitution of New York, p. 123 of Amer. Const.; Pennsylvania, p. 139; Delaware, p. 157, § 8; Kentucky, p. 241; Louisiana, p. 300, § 7; Mississippi, p. 316, § 5; Michigan, p. 392, § 9.

[*25

This constitution was adopted in convention, May 11, 1835, -*ratified by the people on the first Monday of October,—a legislature elected in the same month,-held a session in November,-organized their judiciary, March, 1836, but were not admitted into the Union until January 26, 1837.. Validity has been given to her legislative acts passed in March, 1836; therefore her constitution took effect as the supreme law, upon its ratification by the vote of the people, on the first Monday of October, 1835.

That this constitution was so considered, see speech of Mr. Morris, in Gales & Seaton's Cong. App., p. 68; Mr. Benton, Mr. King, Mr. Vanderpoel, Mr. Toucey, Congressional Globe and Appendix, 1836-7.

See also 1 Story, Com. on Const. Judge Nelson says (1 Va. Cas., p. 28),-"It is confessedly the assent of the people which gives validity to a constitution." Judge Henry, p. 47; 9 Dane, Abr., p. 18, § 8, p. 26, § 14, p. 22, § 11, when the United States Constitution became binding, p. 38, § 28, p. 41, § 32, p. 44, § 35.

These authorities establish the position, that constitutions take effect and become binding from the time of their ratification by the vote of the people; which, in the language of Washington, is of itself "an explicit and authentic act of the whole people."

7th. The difference between a change of government and a revolution.

66

2 Dall., 419, 464, 308; Wilson's Works, Vol. 1., pp. 383, 384, "A change of government has been viewed," &c.; Id., pp. 20, 21; Federalist, No. 21 (Hamilton), p. 78, No. 39, p. 154, No. 40, p. 158, No. 43, p. 175 (Madison); Washington's Farewell Address; the several State constitutions; Helvidius (Madison); Rawle on the Const.; 1 Story, Com. on Const., p. 300; 1 Cranch, p. 176 (Marshall); 9 Dane, Abr., pp. 67, 68, § 56.

All these go to establish the constitutional right of changing State forms of government. But the right of revolution, in the common and European acceptation of the term, implying a change by force, is nowhere sanctioned, so far as individual

Luther v. Borden et al.

States are concerned, in the Constitution of the United States, if it may be in that of any of the States. On the contrary, as such revolution may involve insurrection and rebellion, as in the cases of Massachusetts and Pennsylvania, the Constitution of the United States, Art. 1, Sect. 8, §§ 14 and 18, makes express provision to resist all such force with the whole military force of the nation, if required, and the act of Congress of February 28, 1795, for calling out the militia, was passed to carry that provision into effect. So that, under the American *system of government, a revolution and *261 a mere peaceful change of government are entirely distinct and different things,-one being provided for, the other, in effect, guarded against.

8th. Why a revolution to change the form of a State government can never be resorted to within the limits of the United States Constitution, while a State remains in the Union.

The United States Constitution, Art. 4, Sect. 4, provides that "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence."

Now, therefore, if revolution includes insurrection and rebellion (all of which are attempts to change a subsisting government by force), then they create that "domestic violence" which is contemplated by the Constitution, and which, by the act of 1795, they have by law provided for suppressing. How, then, can revolution be resorted to, to change a State government? With respect to the Constitution of the United States the case may, I think, be different.

As to the decision of State courts.

The rule applies to cases where the decision of a State court has become a rule of property, and to the construction of local statutes. Green v. Neal, 6 Pet., 291. It must be a fixed and received construction. Shelby v. Guy, 11 Wheat., 361; Gardner v. Collins, 2 Pet., 85.

But the Rhode Island court, in the trial of Governor Dorr for treason, refused to consider the people's constitution, or to decide between that and the charter government. They held (p. 38) that, "if a government had been set up under what is called the people's constitution, and they had appointed judges to give effect to their proceedings, and deriving authority from such a source, such a court might have been ad

Luther v. Borden et al.

dressed upon a question like this; but we are not that court." The rule of State decision does not apply to this case,—

1. Because it involved no rule of property nor construction of a statute enacted by a legislature acknowledged by both parties, but related to the existence of a constitution and government under it.

2. The court never decided which was the valid constitution, but refused to také jurisdiction of that question or to hear it at all.

3. The excitement of the times forms an exception.

4. It was made a political question, and not a judicial construction, as far as it entered into the case.

*Mr. Whipple, for the defendant in error, said that the question to be decided was, whether a portion of [*27 the voters of a State, either the majority or minority, whenever they choose, assembling in mass meeting without any law, or by voting where there is no opportunity of challenging votes, may overthrow the constitution and set up a new one? But he would leave the discussion of general principles to his associate, and confine himself to the more minute facts of the case.

The court below ruled out the evidence offered by the plaintiff in error. Were they right? They offered parol proof of a new constitution, which was said to have been adopted by an out-door proceeding, not recognized by any law. No parallel can be found to this case in any government, the freest that ever existed, where it was attempted by such a summary proceeding to bind all those who had no participa

tion in it.

The charter and laws of Rhode Island were liberal and even radical. It was eminently a government of the people. (Mr. Whipple here went into a particular examination of the charter and laws to illustrate this point.) The usage has been always for the legislature to receive and act upon petitions for extension of the right of suffrage, and this usage constitutes the law. All changes must originate with the legislature.

The following proposition is true, viz. :- That no resistance to law is to be countenanced, unless in case of oppression irremediable otherwise. Was this the case here? Difficulties had existed for thirty years in the way of framing a constitution, not consisting in an electoral vote, but in the basis of representation. Towns had grown up and claimed a greater share in representation in the legislature. But in conventions, the allotment of representatives was according to the scale of