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Present-Chief Justice TANEY, and Justices WAYNE, McLean, Nelson, W00DBURY, and Grier. Justices CATRON and Daniel were unable to sit in the cause, being confined by sickness, and Judge McKINLEY was not present.
For the Plaintiffs, Nathan CliFFORD, Attorney General of the United States, and B. F. HallETT.
For the Defendants, Daniel WEBSTER, John Whipple, and Alfred Bosworth.
It being arranged that the two causes should be argued together, Mr. HALLETT opened for the Plaintiffs.
The first of these causes comes before this Court by writ of error to the Circuit Court of the United States for the District of Rhode Island, upon a judgment pro forma against the plaintiff in error.
The second is sent up from the same Court upon a certificate of division of opinion between the two Judges.
Both causes involve similar questions and principles, and therefore may with great propriety be argued together, the distinction between them being, that in the first the distinct issue raised is the validity of the People's Constitution, which the plaintiff claims was in force in Rhode Island ; and in the second the question is definitely raised as to the force and validity of Martial Law, under which the defendants justify their acts of trespass.
If the new constitution, and laws under it, were in force in Rhode Island, and the old Charter Government rightfully superseded thereby, then the justification of the defendants fails in both cases. If, on the other hand, that constitution was not in force, but the Charter Legislature was in fact the law-making power, yet, if they had not the power to declare Martial Law in the manner they did, or if the act itself, and the proceedings under it, were illegal or defective, or if the defendants have failed to show their authority as subordinates, then also the defence in both cases, but especially in the latter, fails.
The first is an action for trespass to the property of the plaintiff, Martin Luther ; the second is an action for trespass to the person of the plaintiff, Rachael Luther.
The facts which appear upon the record, and are to be taken as fully proved, are these :In June, 1842, Martin Luther was living in the town of Warren, in the State of Rhode Island, in his own house, (which was also occupied by his mother, Rachael Luther,) and had lived there for nearly forty years. On the 29th of June, in the night time, the defendants, Luther M. Borden, Stephen Johnson, William L. Brown, John #1. Munroe, William B. Snell, James Gardner, and John Kelly, are charged with breaking into the plaintiff's