II

ence in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union; and can only flow from a misapprehension of the nature of the provision itself. It would be no impediment to reforms of the State Constitutions by a majority of the people in a legal and peaceable mode. This right would remain undiminished." [P. 78, Ed. of 1845.]

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

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

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

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

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

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

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

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

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

These preliminary suggestions embrace within the issue three general propositions.

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

2. That the issue was properly before the Court below, and it is necessary for this Court to pass upon it, in order to determine the rights of the parties on the record in this cause. 3. That it is a judicial power, and not a political power, which the Court is called upon to exercise in applying the rule of decision that is to govern this case.

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

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

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

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

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

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

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

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

2

2. That this is pre-eminently their right, in the absence of any provision in the existing frame of government for its amendment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Now how do we show it?

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

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

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

Island, in order to apply the rule of law that shall determine where the source of power was, at the time of the change in government under the new constitution.

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

Government before the Revolution.

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

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

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

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

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

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

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

It secured religious freedom to the people and inhabitants of the colony-that no person within the colony should be molested for any differences in opinion in matters of religion. It ordained that William Brenton and others, and all "such others as now are or hereafter shall be admitted and made free of the Company and Society of the said colony, shall he a body corporate and politic."

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

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

At this time there were about 2500 inhabitants. [2 Bancroft's Hist., p. 64.]
The charter was held up to all the people at Newport, and approved by them.

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

The last charter was more in the form of a close corporation, and new members were to be admitted only by the voice of the company.

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

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

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

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

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

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

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

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

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

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

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

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

The second section provides

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

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

It was then enacted

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

ing of competent estates and of civil conversation, and acknowledging and paying obedience to the civil magistrate, shall be admitted freemen, and shall have liberty to choose and be chosen civil and military officers within the State, any exception in said act to the contrary notwithstanding."

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

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

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

Mr. HALLETT The learned counsel is mistaken. That act, which I deny ever was law, imposed both penalties without mitigation, and the Supreme Court of Rhode Island sentenced Mr. Luther to both. He suffered the imprisonment, and the friends of freedom in Rhode Island and other States raised the fine by subscription, in which no man, I believe, was allowed to give over ten cents, and that money has gone into the Treasury of Rhode Island. Thus early began the restriction of civil and religious rights. In 1665 the Quakers were laid under certain disabilities.

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

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

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

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

In 1723, the first land qualification was enacted, viz. freeholders of lands of 100 pounds value, or 40 shillings rent, or the oldest son of such freeholder. In 1729, raised to 200 pounds and 10 pounds per annum. In 1742, an act was passed to increase the restrictions, and so little did the Assembly know of their own charter, that in the preamble to this act they actually recite, in justification, a "whereas that it is provided in the charter that none shall be admitted freemen but such as are of competent estates," &c., when, in fact, there is no such provision, nor anything like it, in the charter! [See Leg. Doc., p. 23.]

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

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

The Revolution in 1776.

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

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

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

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

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

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

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