the present population and personal property | as were in arms to be "insurgents," and com in different portions and towns of the State. This led to several applications to the Legislature for a change in these matters, or for provision to have a convention of the people called to correct it by a new constitution. These all failing, voluntary societies were formed in 1841, 49*] *and a convention called by them of delegates, selected by the male adults who had resided one year in the State, with a view chiefly to correct the right of suffrage and the present unequal apportionment of representa manding them to disperse. It was next shown by the respondents, that Dorr, the governor elect under the new constitution, was, in August, 1842, indicted for treason against the State and being apprehended in 1844, was then tried and convicted. It further appears that the court, at the trial of the present cause, ruled out the evidence offered by the plaintiff in support of his conduct, and admitted that which went to justify the defendants, and decided that the old char tives. This, though done without the formaliter, and not the new constitution, was in force ties or recommendation of any statute of the State, or any provision in the charter, was done peacefully, and with as much care and form as were practicable without such a statute or charter provision. A constitution was formed by those delegates, a vote taken on its ratification, and an adoption of it made, as its friends supposed, and offered to prove, by a decided majority, both of the freehold voters and of the male adults in the State. at the time the act passed declaring martial law, and that this law was valid, and, as pleaded, justified the defendants in their behavior. Without entering here at more length into details concerning the unhappy controversy which agitated Rhode Island in 1842, it is manifest that it grew out of a political difficulty among her own people, in respect to the formation of a new constitution. It is not probable that the active leaders, and much less the Political officers for the executive and legis-masses, who were engaged on either side, had lative departments were then chosen under it by those in its favor, which officers assembled on the 3d of May, 1842, and took their respective oaths of office and appointed several persons to situations under the constitution, and among them the existing judges of the superior court. After transacting some other business the next day-but the old officers in the State under the charter not acknowledging their authority, nor surrendering to them the public records and public property-they adjourned till July after, and never convened again, nor performed any further official duties. Nor did institute actions for the possession of the public records and public property; but T. Dorr, the person elected governor, at the head of an armed force on the 25th of June, 1842, in his supposed official capacity, made some attempt to get possession of the public arsenal; but failing in it, he dismissed the military assembled, by a written order, on the 27th of June, and left the State. He stated as a reason for this, "that a majority of the friends of the people's constitution disapprove of any further forcible measures for its support." any intention to commit crimes or oppress illegally their fellow-citizens. Such, says Grotius, is usually, in civil strife, the true, liberal view to be taken of the masses. Grotius on War, B. 3, ch. 11, sec. 6. And much more is it so, when, in a free country, they honestly divide on great political principles, and do not wage a struggle merely for rapine or spoils. In this instance each side appears to have sought, by means which it considered lawful and proper, to sustain the cause in which it had embarked, till peaceful discussions and peaceful action unexpectedly ripened into a resort to arms, and brother became arrayed against brother in civil strife. Fortunately, no lives were destroyed, and little property injured. But the bitterness consequent on such differences did not pass off without some highly penal legislation, and the extraordinary measure of the establishment of martial law over the whole State. Under these circumstances, it is too much to expect, even at this late day, that a decision on any branch of this controversy can be received without some of the Heaven of former political excitement and preju(lice, on the one side or the other, by those who were engaged in its stirring scenes. Public duty, however, seems to require each member of this court to speak freely his own convictions on the different questions which it may be competent for us to decide; and when one of those members, like myself, has the misfortune to differ in any respect from the rest, to explain *with frankness, and undeterred by con- [*51 sequences, the grounds of that difference. In the mean time, the officers under the old charter, having, as before suggested, continued in possession of the public records and property, and in the discharge of their respective functions, passed an act, on the 24th of June, placing the State under martial law. A proclamation was then issued by the governor, warning the people not to support the new constitution or its officers, and another act was passed making it penal to officiate under it. An application was made to the President of the United States for assistance in quelling the disturbances apprehended, but was answered by him on the 29th of May, 1842, not complying | controversy having arisen in the circuit to with the request, though with expressions of willingness to do it, should it, in his opinion, afterwards become necessary. This difference, however, between me and my brethren extends only to the points in issue concerning martial law. But that being a very important one in a free government, and this which I belong, and where the deepest interest is felt in its decision, I hope to be excused for considering that point fully; and for assigning, also, some additional and different reasons why I concur with the rest of the court in the opinion, that the other leading question, the validity of the old charter' at that time, is not within our constitutional jurisdiction. These two Nothing further seems to have been done by 50*] him in the *premises, except that on the 29th of June, the day of trespass complained of in this action, a proclamation was prepared under his direction, but not issued, denouncing such of the supporters of the new constitution inquiries seem to cover the whole debatable It must be very obvious, on a little reflection, that the last is a mere political question. Indeed, large portions of the points subordinate to it, on this record, which has been so ably discussed at the bar, are of a like character, rather than being judicial in their nature and cognizance. For they extend to the power of the people, independent of the Legislature, to make constitutions to the right ht of of suffrage suffrage among different classes of them in doing this to a people bred in the school of Sydney and to the authority of naked majorities and other ground, and I refrain to give an opinion on the last question, which is merely political, under a conviction that, as a judge, I possess no right to do it, and not to avoid or conceal any views entertained by me concerning them, as mine, before sitting on this bench and as a citizen, were frequently and publicly avowed. dicere, we speak or construe what is the constitution, after both are made, but we make, or revise, or control neither. The disputed rights beneath constitutions already made are to be governed by precedents, by sound legal principles, by positive legislation, clear contracts, moral duties, and fixed rules; they are per se questions of law, and are well suited to the education and habits of the bench. But the other disputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves, and popular will, and arising not in respect to private rights-not what is meum and tuum-but in relation to politics, they belong to politics, and they are settled by political tribunals, and are too dear Russel for them ever to intrust their final de kindred questions, of such high political in-cision, when disputed, to a class of men who are terest as during a few years to have agitated much of the Union, no less than Rhode Island. But, fortunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. so far removed from them as the judiciary; a class, also, who might decide them erroneously as well as right, and if in the former way, the consequences might not be able to be averted except by a revolution, while a wrong decision by a political forum can often be peacefully The adjustment of these questions belongs to corrected by new elections or instructions in a the people and their political representatives, single month. And if the people, in the diseither in the State or general government. | tribution of powers under the Constitution, These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination-or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. There being so different tastes as well as opinions in politics, and especially in forming constitutions, some people prefer foreign models, some domestic, and some neither; while judges, on the contrary, for their guides, have fixed constitutions and laws, given to them by others, and not provided by themselves. And those others are no more Locke than an Abbé Sieyes, but the people. Judges, for constitutions, must go to the people of their own country, and must should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgments as *belong to [*53 mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way-slowly, but surely-a new sovereign power in the republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times. Again, instead of controlling the people in political affairs, the judiciary in our system was designed rather to control individuals, on the one hand, when en 52*] *merely enforce such as the people them- | croaching, or to defend them, on the other, But how would this superiority be as to this | under such constitutions and laws, rather than court, if we could decide finally on all the to decide whether those constitutions and laws political claims and acts of the people, and themselves have been rightfully and wisely overrule or sustain them according only to our made. own views? So the judiciary, by its mode of Again, the Constitution of the United States appointment, long duration in office, and slight | enumerates specially the cases over which its selves, whose judicial servants they are, have been pleased to put into operation. Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be, that in such an event all political privileges and rights would, in a dispute among the people, depend on our decision finally. We would possess the power to decide against as well as for them, and under a prejudiced or arbitrary judiciary the public liberties and popular privileges might thus be much perverted, if not entirely prostrated. But, allowing the people to make constitutions and unmake them, allowing their representatives to make laws and unmake them, and without our interference as to their principles or policy in doing it, yet, when constitutions and laws are made and put in force by others, then the courts, as empowered by the State or the Union, commence their functions and may decide on the rights which conflicting parties can legally set up under them, rather than about their formation itself. Our power begins after theirs ends. Constitutions and laws precede the judiciary, and we act only under and after them, and as to disputed rights beneath them, rather than disputed points in making them. We speak what is the law, jus under the Constitution and the laws, when they are encroached upon. And if the judiciary at times seems to fill the important station of a check in the government, it is rather a check on the Legislature, who may attempt to pass laws contrary to the Constitution, or on the executive, who may violate both the laws and Constitution, than on the people themselves in their primary capacity as makers and amenders of constitutions. Hence the judiciary power is not regarded by elementary writers on politics and jurisprudence as a power co-ordinate or commensurate with that of the people themselves, but rather co-ordinate with that of the Legislature. Kendall v. United States, 12 Peters, 526. Hence, too, the following view was urged, when the adoption of the Constitution was under consideration: "It is the more rational to suppose that the courts were designed to be an intermediate body between the people and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority." Federalist, No. 77, by Hamilton. "Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both," etc., etc. accountability, is rather fitted to check legislative power than political, and enforce what the political authorities have manifestly ordained. These last authorities are, by their pursuits and interests, better suited to make rules; we, to expound and enforce them, after made. The subordinate questions which also arise here in connection with the others, such as whether all shall vote in forming or amending those constitutions who are capable and accustomed to transact business in social and civil life, and none others; and whether, in great exigencies of oppression by the Legislature it self, and refusal by it to give relief, the people may not take the subject into their own hands, 54*] independent of the Legislature; *and whether a simple plurality in number on such an occasion, or a majority of all, or a larger proportion, like two thirds or three fourths, shall be deemed necessary and proper for a change; and whether, if peacefully completed, violence can afterwards be legally used against them by the old government, if that is still in possession of the public property and public records; whether what are published and acted judiciary is to have cognizance, but nowhere includes controversies between the people of a State as to the formation or change of their constitutions. *See article 3, sec. 2. [*55 Though at first the federal judiciary was empowered to entertain jurisdiction where a State was a party in a suit, it has since been deprived even of that power by a jealous country, except in cases of disputed boundary. Article 3, sec. 2; Amendment 11th; Massachusetts v. Rhode Island, 12 Peters, 755. If it be asked what redress have the people, if wronged in these matters, unless by resorting to the judiciary, the answer is, they have the same as in all other political matters. In those, they go to the ballot boxes, to the Legislature or executive, for the redress of such grievances as are within the jurisdiction of each, and, for such as are not, to conventions and amendments of constitution. And when the former fail, and these last are forbidden by statutes, all that is left in extreme cases, where the suffering is intolerable and the prospect is good of relief by action of the people without the forms of law, is to do as did Hampden and Washingon as the law and constitution of a State were ton, and venture action without those forms, made by persons duly chosen or not, were en-and abide the consequences. Should strong rolled and read according to certain parliamen- | majorities favor the change, it generally is comtary rules or not, were in truth voted for by a pleted without much violence. In most States, majority or two thirds; these and several other questions equally debatable and difficult in their solution are in some aspects a shade less political. But they are still political. They are where representation is not unequal, or the right of suffrage is not greatly restricted, the popular will can be felt and triumph through the popular vote and the delegates of the peo too near all the great fundamental principles ❘ple in the Legislature, and will thus lead soon, in government, and are too momentous, ever to have been intrusted by our jealous fathers to a body of men like judges, holding office for life, independent in salary, and not elected by the people themselves. Non nostrum tantas componere lites. Where, then, does our power, as a general rule, begin? In what place runs the true boundary line? It is here. Let the political authorities admit as valid a constitution made with or without previous provision by the Legislature, as in the last situation Tennessee and Michigan were introduced into the Union. See Federalist, No. 40, and 2 Ell. Deb. 57; 13 Regis by Y. 95, 1164, and Cong. Globe, App. 78, 137, 147. Let the collected will of the people as to changes be so strong, and so strongly evinced, as to call down no bills of pains and penalties to resist it, and no arming of the militia or successful appeals to the general government to suppress it by force, as none were in some cases abroad as and peacefully, to legislative measures ending in reform, pursuant to legislative countenance and without the necessity of any stronger collateral course. But when the representation is of a character which defeats this, the action of the people, even then, if by large majorities, will seldom be prosecuted with harsh pains and penalties, or resisted with arms. Changes, thus demanded and thus supported, will usually be allowed to go into peaceful consummation. But when not so allowed, or when they are attempted by small or doubtful majorities, it must be conceded that it will be at their peril, as they will usually be resisted by those in power by means of prosecutions, and sometimes by violence, and, unless crowned by success, and thus subsequently ratified, they will often be punished as rebellious or treasonable. If the majorities, however, in favor of changes happen to be large, and still those in power refuse to yield to them, as in the English rev well as in America, and one recently in New ❘olution of 1688, or in our own of 1776, the pop ular movement will generally succeed, though it be only by a union of physical with moral strength; and when triumphant, it will, as on those occasions, confirm by subsequent forms of law what may have begun without them. York, which might be cited beside those above. See A. D. 1846, and opinion of their judges. In short, let a constitution or law, however originating, be clearly acknowledged by the existing political tribunals, and be put and kept in successful operation. The judiciary can There are several other questions, also, which then act in conformity to and under them. may arise under our form of government that Kemper v. Hawkins, 1 Va. Cas. 74, App. Then, are not properly of judicial *cognizance. [*56 when the claims of individuals come in conflict They originate in political matters, extend to under them, it is the true province of the ju- political objects, and do not involve any pecundiciary to decide what they rightfully are liary claims or consequences between individ uals, so as to become grounds for judicial in- | de facto government, the judiciary can only quiry. These questions are decided sometimes conform to that political decision. See, also.. circumstance, that the Supreme Court of Rhode | tice. That they could mean no other than the Island, organized since, under the second new ancient martial law often used before the Peconstitution, has adopted this principle. In tition of Right, and sometimes since, is further by Legislatures, or heads of departments, or by public political bodies, and sometimes by officers, executive or military, so as not to be revisable here. See Decatur v. Paulding, 14 Peters, 497. Looking to all these considerations, it appears to me that we cannot rightfully settle those grave political questions which, in this case, have been discussed in connection with the new constitution; and, as judges, our duty is to take for a guide the decision made on them by the proper political powers, and, whether right or wrong according to our private opinion, enforce it till duly altered. But it is not necessary to rest this conclusion on reasoning alone. Several precedents in this court, as well as in England, show the propriety of it. In Foster et al. v. Neilson, 2 Peters, 309, where the title to the property depended on the question, whether the land was within a cession by treaty to the United States, it was held that after our government, legislative and executive, had claimed jurisdiction over it, the courts must consider that the question was a political one, the decision of which, having been made in this manner, they must conform to. See, also, 6 Peters, 711, and Garcia v. Lee, 12 Peters, 520; 13 Peters, 419. In The Cherokee Nation v. The State of Georgia, 5 Peters, 20, the court expressed strong doubts whether it was not a political question, not proper for their decision, to protect the Cherokee Indians in their possessions, and to restrain the State of Georgia and construe and enforce its treaty obligations. Justice Johnson seemed decisive that it was. In Massachusetts v. Rhode Island, 12 Peters, 736, 738, it was held that the boundaries between States was a political question per se, and should be adjusted by political tribunals, unless agreed to be settled as a judicial question, and in the Constitution so provided for. Garcia v. Lee, Ib. 520. In Barclay v. Russel, 3 Ves. 424, in respect to confiscations, it was held to be a political question, and a subject of treaty, and not of municipal jurisdiction. p. 434. In Nabob of the Carnatic v. The East India Company, 2 Ves. Jun. 56, the court decided that political treaties betwen a foreign state and subjects of Great Britain, conducting as a state under acts of Parliament, are not a mat- | ter of municipal jurisdiction, and to be examined and enforced by the judiciary. Another class of political questions, coming still nearer this, is, Which must be regarded as 57*] the rightful government abroad *between two contending parties? That is never settled by the judiciary, but is left to the decision of the general government. The Cherokee case, 5 Peters, 50; and Williams v. Suffolk Ins. Co. 13 Peters, 419; 2 Cranch, 241; Rose v. Himeley, 4 Cranch, 268; United States v. Palmer, 3 Wheat. 634, and Gelston v. Hoyt, Ib. 246; The Divina Pastora, 4 Wheat. 64; 14 Ves. 353; 11 Ves. 583; 1 Edw. Ad. 1. The doctrines laid down in Palmer's case are as directly applicable to this in the event of two contending parties in arms in a domestic war as in a foreign. If one is recognized by the executive or Legislature of the Union as the The Santissima Trinidad, 7 Wheat. 336, 337; and, further, that if our general government recognizes either as exclusively in power, the judiciary must sustain its belligerent rights, see 3 Sumner, 270. In the case of The City of Berne v. The Bank of England, 9 Ves. 348, it was held that "a judicial court cannot take notice of a foreign government not acknowledged by the government of the country in which the court sits." The same rule has been applied by this court in case of a contest as to which is the true constitution, between two, or which possesses the true legislative power in one, of our own States-those citizens acting under the new constitution, which is objected to as irregularly made, or those under the old territorial government therein. Semb. Scott et al. v. Jones et al. 5 Howard, 374. In that case we held that no writ of error lies to us to revise a decision of a State court, where the only question is the validity of the statute on account of the political questions and objections just named. It was held, also, in Williams v. Suffolk Ins. Co. 2 Sumner, 270, that. where ere a claim exists by two governments over a country, the courts of each are bound to consider the claims of their own government as right, being settled for the time being by the proper political tribunal. And hence no right exists in their judicial authorities to revise that decision. pp. 273, 275; S. C. 13 Peters, 419. "Omnia rite acta. It might otherwise happen, that the extraordinary spectacle might be presented of the courts of a country disavowing and annulling the acts of its own government in matters of state and political diplomacy." This is no new distinction in judicial practice any more than in judicial adjudications. The pure mind of Sir Matthew Hale, after much hesitation, at last consented to preside on the bench in administering the laws between private parties under a government established and recognized by other governments, and in full possession de facto of the records and power of the kingdom, but without feeling satisfied on inquiring, as a *judicial question, [*58 into its leg legal rights. Cromwell had "gotten possession of the government," and expressed a willingness "to rule according to the laws of the land"-"by red gowns rather than red coats," as he is reported to have quaintly remarked. And this Hale though justified him in acting as a judge. Hale's Hist. of the Com. Law, p. 14, Preface. For a like reason, though the power of Cromwell was soon after overturned, and Charles II. restored, the judicial decisions under the former remained unmolested on this account, and the judiciary went on as before, still looking only to the de facto government for the time being. Grotius virtually holds the like doctrine. B. 1, ch. 4, sec. 20, and B. 2, ch. 13, sec. 11. Such was the case, likewise, over most of this country, after the Declaration of Independence, till the acknowledgment of it by England in 1783. 3 Story's Com. on Const. secs. 214, 215. And such is believed to have been the course in France under all her dynasties and régimes, during the last half century. These conclusions are strengthened by the numerous instances, this court has considered itself bound to follow the decision of the State tribunals on their own constitutions and laws. See cases in Smith v. Babcock, 2 Wood. & M. 5 Howard, 139; Elmendorf v. Taylor, 10 Wheat. 159; Bank of U. S. v. Daniel et al. 12 Peters, 32. This, of course, relates to their validity when not overruling any defense set up under the authority of the United States. None such was set up in the trial of Dorr, and yet, after full hearing, the Supreme Court of Rhode Is manifest from the fact that they not only declared "martial" law to exist over the State, but put their militia into the field to help, by means of them and such a law, to suppress the action of those denominated "insurgents" and this without any subordination to the civil power, or any efforts in conjunction and in cooperation with it. The defendants do not aver the existence of any civil precept which they were aiding civil officers to execute, but set up merely military orders under martial law. Not land decided that the old charter and its Legis-withstanding this, however, some attempts have lature were the political powers which they were bound to respect, and the only ones legally in force at the time of this transaction; and accordingly convicted and punished the governor chosen under the new constitution for treason, as being technically committed, however pure may have been his political designs or private character. Report of Dorr's Trial, 1844, pp. 130, 131. The reasons for this uniform compliance by us with State decisions made before ours on their own laws and constitutions, and not appealed from, are given by Chief Justice Marshall with much clearness. It is only necessary to refer to his language in Elmendorf v. Taylor, 10 Wheat. 159. Starting, then, as we are forced to here, with several political questions arising on this record, and those settled by political tribunals in the State and general government, and whose decisions on them we possess no constitutional | authority to revise, all which, apparently, is 59*] left for us to decide is the *other pointwhether the statute establishing martial law over the whole State, and under which the acts done by the defendants are sought to be justified, can be deemed constitutional. To decide a point like this last is clearly within judicial cognizance, it being a matter of private personal authority and right, set up by the defendants under constitutions and laws, and not of political power, to act in relation to the making of the former. Firstly, then, in order to judge properly | whether this act of Assembly was constitutional, let us see what was the kind and character of the law the Assembly intended, in this instance, to establish, and under which the reestabli spondents profess to have acted. been made at another construction of this act, somewhat less offensive, by considering it a mere equivalent to the suspension of the habeas corpus, and another still to regard it as referring only to the military code used in the armies of the United States and England. But when the Legislature enacted *such a [*60 system "as martial law," what right have we to say that they intended to establish something else and something entirely different? A suspension, for instance, of the writ of habeas corpus- a thing not only unnamed by them, but wholly unlike and far short, in every view, of what they both said and did? Because they not only said, eo nomine, that they established "martial law," but they put in operation its principles; principles not relating merely to imprisonment, like the suspension of the habeas corpus, but forms of arrest without warrant, breaking into houses where no offenders were found, and acting exclusively under military orders rather than civil precepts. Had the Legislature meant merely to suspend the writ of habeas corpus, they, of course, would have said that, and nothing more. brief examination will show, also, that they did not thus intend to put in force merely some modern military code, such as the Articles of War made by Congress, or those under the Mutiny Act in England. They do not mention either, and what is conclusive on this, neither would cover or protect them, in applying the provisions of those laws to a person situated like the plaintiff. For nothing is better settled than that military law applies only to the military; but "martial law" is made here to apply to all. Hough on Courts-Martial, 384, note; 27 State Trials, 625, in Theobald Wolfe Tone's case. A The Assembly says: "The State of Rhode Island and Providence Plantations is hereby The present laws for the government of the placed under martial law, and the same is here- | military in England, also, do not exist in the or by declared to be in full force, until otherwise ordered by the General Assembly, or suspended by proclamation of his Excellency the Governof the State." Now, the words "martial law," as here used, cannot be construed in any other than their legal sense, long known and recognized in legal precedents as well as political history. See it in 1 Hallam's Const. Hist. ch. 5, p. 258; 1 MacArthur on Courts Martial, 33. The Legislature evidently meant to be understood in that sense by using words of such well settled construction, without any limit or qualification, and covering the whole State with its influence, under a supposed exigency and justification for such an unusual course. I do not understand this to be directly combated in the opinion just delivered by the Chief Jus dis vague and general form of martial law, but are explicitly restricted to the military, and are allowed as to them only to prevent desertion and mutiny, and to preserve good discipline. 1 Bl. Com. 412; 1 MacArthur on Courts-Martial, p. 20. So, in this country, legislation as to the military is usually confined to the general government, where the great powers of war and peace reside. And hence, under those powers, Congress, by the Act of 1806, 2 Stat. at Large, 359, has created the Articles of War, "by which the armies of the United States shall be governed," and the militia when in actual service, and only they. To show this is not the law, by which other than those armies shall be governed, it has been found necessary, in order to include merely the drivers or arti |