OF THE Supreme Court of the United States, AT JANUARY TERM, 1849. 1*] *MARTIN LUTHER, Plaintiff in Error, that it had been adopted and ratified by a majority V. LUTHER M. BORDEN et al., Defendants in 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 exigencycertificate 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. Martial law has been confounded with military law, but the two are very different. The latter consists of the "rules and articles of war," and other statutory provisions for the government of military persons, to which may be added the unwritten or common law of the "usage and custom of military service." It exists equally in peace and in war, and is as fixed and definite in its provisions as the admiralty, ecclesiastical, or any other branch of law, and is equally, with them, a part of the general law of the land. Halleck's International Law and Laws of War, 373. Martial law is quite distinct from military law. 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. The courts of Rhode Island have decided in fa vor 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 pro ceeding. 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. 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. It is from its very nature an arbitrary power, and extends to all the inhabitants of the district where it is in force. Military law extends to all military persons, but not to those in a civil capaсity. De Hart, Ch. 2; Hough on Courts-Martlal, 384; Harwood, Naval Courts-Martial, 7, 8. The right to declare, apply and enforce martial law, is one of the sovereign powers, and resides in the governing authority of the State, and it de pends upon the constitution of the State whether restrictions and rules are to be adopted for its application, or whether it is to be exercised according to the exigencies which call it into existence. Halleck's International Law and Laws of War, 373. |