V.

of the people of the State, and was the paramount law and constitution of Rhode Island.

Under it, elections were held for Governor, mem

Error.1

RACHEL LUTHER, Complainant,

V.

LUTHER M. BORDEN et al., Defendants.

Trespass-justification, martial law, military officer acting under orders-power to recognize State government as duly constituted, vested in Congress-decisions of State courts thereon-President's power under statuteState government may declare martial law -Legislature judges of necessary exigency certificate of division of opinion-practice.

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 II., 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

1. Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice McKinley were absent on account of ill health when this case was argued.

NOTE.-What is a State. See note to 8 L. ed. U. S. 25.

Martial law, what is; different from military law; extent of; in whom the power to declare resides; when it may be exercised; suspension of writ of habeas corpus practically equivalent thereto, in this country; occasions of such suspension; what is military necessity.

sembled 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 ratified or not by the people of the State, and the whether a proposed constitution or amendment was judicial power has followed its decision.

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.

*The question whether or not a majority of [*2 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 governUnder the existment in the hands of Congress. ing legislation of Congress, the exercise of this power by courts would be entirely inconsistent with that legislation.

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 Martial law exists only in time of war, and originates in military necessity. It derives no authority from the civil law, nor assistance from the civil tribunals, for it overrules, suspends and replaces both. Idem; 1 Kent's Com. 7th ed. 370; marg. p. 341, note a.