Martin Luther, Plaintiff In Error v. Luther Borden Et Al Defendants In Error Rachel Luther, Complainant v. Luther Borden Et Al Defendants

• Decision Date: 01 January 1849
• Citation: 7 How. 1,12 L.Ed. 581,48 U.S. 1
• Parties: MARTIN LUTHER, PLAINTIFF IN ERROR, v. LUTHER M. BORDEN ET AL. DEFENDANTS IN ERROR. * RACHEL LUTHER, COMPLAINANT, v. LUTHER M. BORDEN ET AL., DEFENDANTS
• Court: U.S. Supreme Court

48 U.S. 1

7 How. 1

12 L.Ed. 581

MARTIN LUTHER, PLAINTIFF IN ERROR,v.LUTHER M. BORDEN ET AL. DEFENDANTS IN ERROR.^*

RACHEL LUTHER, COMPLAINANT,

v.LUTHER M. BORDEN ET AL., DEFENDANTS.

January Term, 1849

THESE two cases came up from the Circuit Court of the United States for the District of Rhode Island, the former by a writ of error, and the latter by a certificate of division in opinion. As the allegations, evidence, and arguments were the same in both, it is necessary to state those only of the first. They were argued at the preceding term of the court, and held under advisement until the present.

Martin Luther, a citizen of the State of Massachusetts, brought an action of trespass quare clausum fregit against the defendants, citizens of the State of Rhode Island, for breaking and entering the house of Luther, on the 29th of June, 1842. The action was brought in October, 1842.

At November term, 1842, the defendants filed four pleas in justification, averring, in substance,——

An insurrection of men in arms to overthrow the government of the State by military force

That, in defence of the government, martial law was declared by the General Assembly of the State.

That the plaintiff was aiding and abetting said insurrection. That at the time the trespasses were committed, the State was under martial law, and the defendants were enrolled in the fourth company of infantry in the town of Warren, under the command of J. T. Child.

That the defendants were ordered to arrest the plaintiff, and, if necessary, to break and enter his dwelling-house.

That it was necessary, and they did break and enter, &c., doing as little injury as possible, &c., and searched said house, &c.

To these pleas there was a general replication and issue.

The cause came on for trial at November term, 1843, when the jury, under the rulings of the court, found a verdict for

the defendants. During the trial, the counsel for the plaintiff took a bill of exceptions, which was as follows:

RHODE ISLAND DISTRICT, sc.:

MARTIN LUTHER }v. } LUTHER M. BORDEN ET ALS. }

Circuit Court of the United States, November Term, 1843.

Be it remembered, that, upon the trial of the aforesaid issue before said jury, duly impanelled to try the same,——

The defendants offered in evidence, in support of their first, second, and third pleas:——

1st. The charter of the Colony of Rhode Island and Providence Plantations, and the acceptance of the same at a very great meeting and assembly of all the freemen of the then Colony of Rhode Island and Providence Plantations, legally called and held at Newport, in the said Colony, on the 24th day of November, A. D. 1663.

That on the 25th day of November, A. D. 1663, the former lawful colonial government of the said Colony dissolved itself, and the said charter became and was henceforth the fundamental law or rule of government for said Colony. That, under and by virtue of said charter, and the acceptance thereof as aforesaid, the government of said Colony was duly organized, and by due elections was continued, and exercised all the powers of government granted by it, and was recognized by the inhabitants of said Colony, and by the king of Great Britain and his successors, as the true and lawful government of said Colony, until the 4th day of July, A. D. 1776.

That the General Assembly of said Colony, from time to time, elected and appointed delegates to the General Congress of the delegates of the several Colonies of North America, held in the years 1774, 1775, and 1776, and to the Congress of the United States of America, in the years 1776 and 1778. And that said delegates of said Colony of Rhode Island and Providence Plantations were received by, and acted with, the delegates from the other Colonies and States of America, in Congress assembled, as the delegates representing the said Colony and State of Rhode Island and Providence Plantations; and that on the 4th day of July, A. D. 1776, said delegates of the said Colony of Rhode Island and Providence Plantations united with the delegates of the other Colonies as representatives of the United States of America, and as such assented to and signed in behalf of said Colony the Declaration of the Independence of the United States of America.

That afterward, to wit, at the July session of the General Assembly of said State of Rhode Island and Providence Plantations, said General Assembly, by resolution thereof, did approve the said Declaration of Independence made by the Congress aforesaid, and did most solemnly engage that they would support the said General Congress in the said Declaration with their lives and fortunes.

That afterwards, to wit, on the 9th day of July, 1778, the said State of Rhode Island and Providence Plantations, by her delegates duly authorized thereunto, became a party to the articles of confederation and perpetual union between the States of New Hampshire. Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia, and ratified and confirmed the same; and, as one of the United States of America under said articles of confederation and perpetual union, was received, recognized, and acted with and by the other States of the said confederation, and by the United States of America in Congress assembled, during the continuation of said confederacy.

That after the dissolution of said confederacy, to wit, on the 29th day of May, A. D. 1790, said State of Rhode Island and Providence Plantations, in convention duly called, elected, and assembled under an act of the General Assembly of said State, ratified the Constitution of the United States, and under the same became, and ever since has been, one of the said United States, and as such, under the Constitution and laws of the United States, and of the said State of Rhode Island and Providence Plantations, hath ever elected and sent, and doth now send, Senators and Representatives to the Congress of the United States, who have been since, and now are, received and recognized as such by the said United States, and in all respects have ever been received and recognized by the several States, and by the United States, as one of the said United States, under the said Constitution thereof.

That from the said 4th of July, A. D. 1776, to the present time, the said charter and the said government of the said State of Rhode Island and Providence Plantations, organized under the same, hath ever been acted under and recognized by the people of said State, and hath been recognized by each of the said United States, and hath been recognized and guaranteed by the said United States as the true, lawful, and republican constitution and form of government of said State; and that the said charter continued to regulate the exercise and distribution of the powers of said government of said State, and except so far as it hath been modified by the Revolution and the new

order of things consequence thereon, continued to be the fundamental law of said State, until the adoption of the present constitution of said State, and the organization of the government under the same.

That all the officers of the said government of said Colony and State of Rhode Island and Providence Plantations, organized under said charter as aforesaid, were elected in conformity with said charter and with the existing laws, from the first organization of the government under the said charter until the organization of the government under the present constitution of said State, and were and continued to be in the full exercise of all the powers of said government, and in the full possession of all the State-houses, court-houses, public records, prisons, jails, and all other public property, until the regular and legal dissolution of said government by the adoption of the present constitution, and the organization of the present government under the same.

2d. That the General Assembly of said State, at their January session, in the year of our Lord one thousand eight hundred and forty-one, passed resolutions in the words following, to wit:——

'Resolved by this General Assembly, (the Senate concurring with the House of Representatives therein,) That the freemen of the several towns in this State, and of the city of Providence, qualified to vote for general officers be, and they are hereby, requested to choose, at their semiannual town or ward meetings, in August next, so many delegates, and of the like qualifications, as they are now respectively entitled to choose representatives to the General Assembly, to attend a convention, to be holden at Providence, on the first Monday of November, in the year of our Lord one thousand eight hundred and forty-one, to frame a new constitution for this State, either in whole or in part, with full powers for this purpose; and if only for a constitution in part, that said convention have under their especial consideration the expediency of equalizing the representation of the towns in the House of Representatives.

'Resolved, That a majority of the whole number of delegates which all the towns are entitled to choose shall constitute a quorum; who may elect a president and secretary; judge of the qualifications of the members, and establish such rules and proceedings as they may think necessary; and any town or city which may omit to elect its delegates at the said meetings in August may elect them at any time previous to the meeting of said convention.

'Resolved, That the constitution or amendments agreed upon by said convention shall be submitted to the freemen in open town or ward meetings, to be holden at such time as may be

named by said convention. That said constitution or amendments shall be certified by the president and secretary, and returned to the Secretary of State; who shall forthwith distribute to the several town and city clerks, in due proportion, one...