THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, AT JANUARY TERM, 1849. MARTIN LUTHER, PLAINTIFF IN ERROR, v. LUTHER M. BORDEN ET AL., DEFENDANTS IN ERROR.* RACHEL LUTHER, COMPLAINANT, . LUTHER M. BORDEN ET AL., DEFENDANTS. At the period of the American Revolution, 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, making only such alterations, by acts of the Legislature, as were necessary to adapt it to their condition and rights as an independent State. But no mode of proceeding was pointed out by which amendments might be made. In 1841 a portion of the people held meetings and formed associations, which resulted in the election of a convention to form a new constitution, to be submitted to the people for their adoption or rejection. This convention framed a constitution, directed a vote to be taken upon it, declared afterwards that it had been adopted and ratified by a majority of the people of the State, and was the paramount law and constitution of Rhode Island. Under it, elections were held for Governor, members of the Legislature, and other officers, who assembled together in May, 1842, and proceeded to organize the new government. But the charter government did not acquiesce in these proceedings. On the contrary, it passed stringent laws, and finally passed an act declaring the State under martial law. In May, 1843, a new constitution, which had been framed by a convention called together by the charter government, went into operation, and has continued ever since. The question which of the two opposing governments was the legitimate one, viz. the charter government, or the government established by the voluntary convention, has not heretofore been regarded as a judicial one in any of the State courts. The political department has always determined whether a proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision.' *Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice McKinley were absent on account of ill health when this case was argued. 1 CITED. Phillips v. Payne, 2 Otto, 132; Keith v. Clark, 7 Id., 474; United States v. Lee, 16 Otto, 209. Luther v. Borden et al. The courts of Rhode Island have decided in favor of the validity of the charter government, and 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 the State.2 *2] *The question whether or not a majority of those persons entitled to suffrage voted to adopt a constitution cannot be settled in a judicial proceeding. The Constitution of the United States has treated the subject as political in its nature, and placed the power of recognizing a State government in the hands of Congress. Under the existing legislation of Congress, the exercise of this power by courts would be entirely inconsistent with that legislation.3 2 CITED. East Hartford v. Hartford Bridge Co., 10 How., 539. 3 CITED. Murray v. Hoboken Land &c. Co., 18 How., 285; White v. Hart, 13 Wall., 649. The argument of Mr. Webster may be found in his works, Vol. VI., p. 617. See also North American Review for April, 1844, p. 371. The views, on this case, of Mr. Calhoun may be found in his works, Vol. VI., 219; also those of Mr. Reverdy Johnson in a note in 2 Story, Const., 567, n. 1 (4th ed.). "It is not to be denied that, under the fourth section of the fourth article of the constitution of the United States, 'it rests with Congress to decide what government is the established one in a State' (citing this case), and whether such government is republican. These are political, and not judicial questions. So, too, are those relating to the admission of senators and representatives." 2 S. C. (N. S.), 283, 294. The admission of a State into the Union as one of the States is a direct and positive declaration by Congress that the government created by its constitution was republican in form, and that its constitution is not inconsistent with that of the United States. Blair v. Ridgely, 41 Mo., 63. The approval by Congress of a constitution of a State, at the time it is admitted as a State, does not give it the force and effect of an act of Congress. 2 Rich. (S. C.), 216; The Home stead Cases, 22 Gratt. (Va.), 266; Hardeman v. Downes, 39 Ga., 425, 443; Marsh v. Burroughs, 1 Woods, 463, 472; Hatch v. Burroughs, Id., 439. There is no power in the Federal constitution to compel a State to organize courts, and afford remedies to enforce contracts. Cutts v. Horder, 39 Ga., 350; Ogden v. Saunders, 12 Wheat., 350; Shorter v. Cobb, 39 Ga., 285, 287. The When a State forms a constitution, which is approved by Congress, it is estopped to deny its validity. action of Congress cannot be inquired into, for the judicial is bound to follow the action of the political department. White v. Hart, 39 Ga., 306; Powell v. Boon, 43 Ala., 459. The question as to whether the adoption of the constitution of Georgia, of 1868, was the act of the people of the State, is a political one in which the courts must follow the action of the political department of the government; but this statement has reference only to the United States courts and the United States government. Marsh v. Burroughs, supra. The question whether a State constitution was regularly and legally adopted, after the same has been acted upon, and the State government is, in fact, being administered under it, is a political rather than & judicial question. A court organized under a constitution would be felo de se if it should declare such constitution null for irregularity and illegality in its adoption. Brittle v. People, 2 Neb., 198. But the State courts have full power to declare that an amendment to the constitution has not been properly adopted, even though it has been so declared by the political department of the State. Secombe v. Kittleson, 29 Minn., 555; s. c., 12 N. W. Rep., 519; State v. Young, 29 Minn., 474; State v. McBride, 4 Mo., 305; State v. Swift, 69 Ind., 505; Collier v. Frierson, 24 Ala., 100. In the Opinion of the Judges, 6 Cush. (Mass.), 573, it was held, that if the legislature should submit to the people the expediency of calling a convention of delegates for the purpose of revising or altering the constitution of the commonwealth in any Luther v. Borden et al. The President of the United States is vested with certain power by an act of Congress, and in this case he exercised that power by recognizing the charter government. Although no State could establish a permanent military government, yet it may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The State must determine for itself what degree of force the crisis demands.4 After martial law was declared, an officer might lawfully arrest any one who he had reasonable grounds to believe was engaged in the insurrection, or order a house to be forcibly entered. But no more force can be used than is necessary to accomplish the object; and if the power is exercised for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable. THESE two cases came up from the Circuit Court of the United States for the District of Rhode Island, the former by a writ of error, and the latter by a certificate of division in opinion. As the allegations, evidence, and arguments were the same in both, it is necessary to state those only of the first. They were argued at the preceding term of the court, and held under advisement until the present. Martin Luther, a citizen of the State of Massachusetts, brought an action of trespass quare clausum fregit against the defendants, citizens of the State of Rhode Island, for breaking and entering the house of Luther, on the 29th of June, 1842. The action was brought in October, 1842. At November term, 1842, the defendants filed four pleas in justification, averring, in substance,— An insurrection of men in arms to overthrow the government of the State by military force. That, in defence of the government, martial law was declared by the General Assembly of the State. That the plaintiff was aiding and abetting said insurrection. That at the time the trespasses were committed, the State was under martial law, and the defendants were enrolled in the fourth company of infantry in the town of Warren, under the command of J. T. Child. That the defendants were ordered to arrest the plaintiff, and, if necessary, to break and enter his dwelling-house. specific part thereof, and the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of so altering the constitution; the delegates would derive their whole authority and commission from such vote, and would have no right, under the same, to act upon and propose amendments in other parts of the constitution not so specified. The Luther e. Borden et al. That it was necessary, and they did break and enter, &c., doing as little injury as possible, &c., and searched said house, &c. To these pleas there was a general replication and issue. The cause came on for trial at November term, 1843, when the jury, under the rulings of the court, found a verdict for *the defendants. During the trial, the counsel for the plaintiff took a bill of exceptions, which was as fol *3] lows. RHODE ISLAND DISTRICT, sc.: MARTIN LUTHER v. LUTHER M. BORDEN ET ALS. Circuit Court of the United States, November Term, 1843. Be it remembered, that, upon the trial of the aforesaid issue before said jury, duly impanelled to try the same, The defendants offered in evidence, in support of their first, second, and third pleas: 1st. The charter of the Colony of Rhode Island and Providence Plantations, and the acceptance of the same at a very great meeting and assembly of all the freemen of the then Colony of Rhode Island and Providence Plantations, legally called and held at Newport, in the said Colony, on 24th day of November, A. D., 1663. That on the 25th day of November, A. D., 1663, the former lawful colonial government of the said Colony dissolved itself, and the said charter became and was henceforth the fundamental law or rule of government for said Colony. That, under and by virtue of said charter, and the acceptance thereof as aforesaid, the government of said colony was duly organized, and by due elections was continued, and exercised all the powers of government granted by it, and was recognized by the inhabitants of said Colony, and by the king of Great Britain and his successors, as the true and lawful government of said Colony, until the 4th day of July, A. D., 1776. That the General Assembly of said Colony, from time to time, elected and appointed delegates to the General Congress of the delegates of the several Colonies of North America, held in the years 1774, 1775, and 1776, and to the Congress of the United States of America, in the years 1776 and 1778. And that said delegates of said Colony of Rhode Island and Providence Plantations were received by, and acted with, the delegates from the other Colonies and States of America, in Congress assembled, as the delegates representing the said |