Martin luther, plaintiff in error



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Luther v. Borden

48 U.S. 1 (1849), U.S. Supreme Court

U.S. Supreme Court

LUTHER v. BORDEN, 48 U.S. 1 (1849)

48 U.S. 1 (How.)

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
[ Luther v. Borden 48 U.S. 1 (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 [48 U.S. 1, 3] 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. [48 U.S. 1, 4] 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 [48 U.S. 1, 5] 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 [48 U.S. 1, 6] 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 thousand printed copies thereof, and also fifteen thousand ballots; on one side of which shall be printed '(Amendments or Constitution) adopted by the convention holden at Providence, on the first Monday of November last'; and on the other side, the word approve on the one half of the said ballots, and the word reject on the other half.

'Resolved, That at the town or ward meetings, to be holden as aforesaid, every freeman voting shall have his name written on the back of his ballot; and the ballots shall be sealed up in open town or ward meeting by the clerks, and, with lists of the names of the voters, shall be returned to the General Assembly at its next succeeding sesson; and the said General Assembly shall cause said ballots to be examined and counted, and said amendments or constitution being approved of by a majority of the freemen voting, shall go into operation and effect at such time as may be appointed by said convention.

'Resolved, That a sum not exceeding three hundred dollars be appropriated for defraying the expenses of said convention, to be paid according to the order of said convention, certified by its president.'

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


'Resolved by this General Assembly, (the Senate concurring with the House of Representatives therein,) That the delegates from the several towns to the State convention to be holden in November next, for the purpose of framing a State constitution, be elected on the basis of population, in the following manner, to wit:-Every town of not more than eight hundred and fifty inhabitants may elect one delegate; of more than eight hundred and fifty, and not more than three thousand inhabitants, two delegates; of more than three thousand, and not more than six thousand inhabitants, three delegates; of more than six thousand, and not more than ten thousand inhabitants, four delegates; of more than ten thousand, and not more than fifteen thousand inhabitants, five delegates; of more than fifteen thousand inhabitants, six delegates.

'Resolved, That the delegates attending said convention be entitled to receive from the general treasury the same pay as members of the General Assembly.

'Resolved, That so much of the resolutions to which these are in amendment as is inconsistent herewith be repealed.'- [48 U.S. 1, 7] And that at their January session, in the year of our Lord one thousand eight hundred and forty-two, the said General Assembly passed resolutions in the words following, to wit:--

'Whereas a portion of the people of this State, without the forms of law, have undertaken to form and establish a constitution of government for the people of this State, and have declared such constitution to be the supreme law, and have communicated such condition to the General Assembly; and whereas many of the good people of this State are in danger of being misled by these informal proceedings, therefore,--

'It is hereby resolved by this General Assembly, That all acts done by the persons aforesaid, for the purpose of imposing upon this State a constitution, are an assumption of the powers of government in violation of the rights of the existing government, and of the rights of the people at large.

'Resolved, That the convention called and organized in pursuance of an act of this General Assembly, for the purpose of forming a constitution to be submitted to the people of this State, is the only body which we can recognize as authorized to form such a constitution, and to this constitution the whole people have a right to look, and we are assued they will not look in vain, for such a form of government as will promote their peace, security, and happiness.

'Resolved, That this General Assembly will maintain its own proper authority, and protect and defend the legal and constitutional rights of the people.'

And that at their January session, in the year of our Lord one thousand eight hundred and forty-two, the said General Assembly passed an act in the words following, to wit:--


'An act in amendment of an act, entitled an act revising the act entitled an act regulating the manner of admitting freemen, and directing the manner of electing officers in this State. 'Whereas the good people of this State have elected delegates to a convention to form a constitution, which constitution, if ratified by the people, will become the supreme law of the State; therefore,--

'Be it enacted by the General Assembly as follows:-All persons now qualified to vote, and those who may be qualified to vote under the existing laws previous to the time of such their voting, and all persons who shall be qualified to vote under the provisions of such constitution, shall be qualified to vote upon the question of the adoption of the said constitution.

'That under and by virtue of the resolutions and acts last aforesaid, a written constitution of government for the said State of Rhode Island and Providence Plantations was framed [48 U.S. 1, 8] by a convention legally called, elected, and assembled, and that said proposed constitution was, in pursuance of the said resolutions and acts, on the 21st, 22d, and 23d days of March, A. D. 1842, submitted for adoption or rejection to all persons qualified by the existing laws of said State to vote, and also to all persons who, under the provisions of said constitution, were qualified to vote, in the legal town and ward meetings of said State and of the city of Providence, legally called and assembled, and was by a majority of the persons so qualified by law to vote thereon, and actually voting thereon, rejected. That the said Martin Luther and his confederates, in causing and fomenting the said rebellion, voted against the adoption of said constitution; a copy of which is hereunto annexed, marked A.

3d. The defendants further offered all the acts, resolutions, and proceedings of the said General Assembly of the said Colony and State of Rhode Island and Providence Plantations, from the organization of the said government under the said charter, until the organization of the present government under the present constitution.

4th. The defendants offered evidence, that on the 24th day of June, A. D. 1842, and for a long time before, and from that time continually, until after the time when the said trespasses are alleged in the plaintiff's said declaration to have been committed, large numbers of men, among whom was the said Martin Luther, were assembled in arms in different parts of the said State of Rhode Island and Providence Plantations, for the purpose and with the intent of overthrowing the government of said State, and destroying the same by military force; and with such illegal, malicious, and traitorous intent and purpose, at and during the times aforesaid, did, in different parts of said State, make and levy war upon said State, and upon the government and citizens thereof, and did attempt and enterprize the hurt, detriment, annoyance, and destruction of the inhabitants of said State, and the overthrow of the government thereof.
5th. That in order to protect and preserve said State, and the government and the citizens thereof, from the destruction threatened by said rebellion and military force, the General Assembly of said State, on the 25th day of June, A. D. 1842, enacted and declared martial law in the words following:--

'An Act establishing Martial Law in this State.

'Be it enacted by the General Assembly as follows:-Section 1. The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is declared to be in full force, until otherwise ordered by the General Assembly, or suspended by proclamation of his Excellency the Governor of the State.'- [48 U.S. 1, 9] And thereupon, on the 26th day of June, A. D. 1842, Samuel Ward King, governor, captain-general, and commander-in-chief in and over said State of Rhode Island and Providence Plantations, issued his proclamation in the words and figures following:--

'By his Excellency, Samuel Ward King, Governor, Captain-General, and Commander-in-chief of the State of Rhode Island and Providence Plantations.

'A Proclamation.

'Whereas the General Assembly of the said State of Rhode Island and Providence Plantations did, on the 25th day of June, A. D. 1842, pass the act following, to wit:--

"An Act establishing Martial Law in this State.

"Be it enacted by the General Assembly as follows:-Section 1. The State of Rhode Island and Providence Plantations is hereby placed under marital law, and the same is declared to be in full force until otherwise ordered by the General Assembly, or suspended by proclamation of his Excellency the Governor of the State.'

'I do, therefore, issue this my proclamation, to make known the same unto the good people of this State, and all others, that they may govern themselves accordingly. And I do warn all persons against any intercourse or connection with the traitor Thomas Wilson Dorr, or his deluded adherents, how assembled in arms against the laws and authorities of this State, and admonish and command the said Thomas Wilson Dorr and his adherents immediately to throw down their arms and disperse, that peace and order may be restored to our suffering community, and as they will answer the contrary at their peril. Further, I exhort the good people of this State to aid and support by example, and by arms, the civil and military authorities thereof, in pursuing and bringing to condign punishment all engaged in said unholy and criminal enterprise against the peace and dignity of the State.

'In testimony whereof, I have caused the seal of said State to be affixed to these presents, and have signed the said with my hand. Given at the city of Providence, on the 26th day of June, A. D. 1842, and of the Independence of the United States of America the sixty-sixth.

'SAMUEL WARD KING.

[L. S.]

'By his Excellency's command.

'HENRY BOWEN, Secretary.'- [48 U.S. 1, 10] 6th. That at the time when the trespasses mentioned and set forth in the plaintiff's said declaration are alleged to have been committed, and at divers other times before that time, the plaintiff was aiding and abetting the aforesaid traitorous, malicious, and unlawful purposes and designs of overthrowing the government of said State by rebellion and military force, and in making war upon said State, and upon the government and citizens thereof.



7th. That at the time when the pretended trespasses mentioned in the plaintiff's declaration are alleged to have been committed, the said State was under martial law as aforesaid, and the said defendants were enrolled in the company of infantry in the said town of Warren, in the fourth regiment of the militia of said State, and were under the command of John T. Child.
8th. That said John T. Child, on the 25th day of June, A. D. 1842, was duly commissioned and sworn as a quartermaster of the fourth regiment of the first brigade of militia of Rhode Island, and continued to exercise such command until after the time when the trespasses mentioned in the plaintiff's declaration are alleged to have been committed; that on the 27th day of June, A. D. 1842, the said John T. Child received written orders from Thomas G. Turner, Esq., lieutenant-colonel commanding said regiment, and duly commissioned and sworn, 'to continue to keep a strong armed guard, night and day, in the said Warren, and to arrest every person, either citizens of Warren or otherwise, whose movements were in the least degree suspicious, or who expressed the least willingness to assist the insurgents who were in arms against the law and authorities of the State.'

9th. That these defendants were ordered, by the said John T. Child, their commander as aforesaid, to arrest and take the said Martin Luther, and, if necessary for the purpose of arresting and taking the said Luther, these defendants were ordered to break and enter the dwelling-house of said Luther.

10th. That these defendants, in compliance with said orders, and for the purpose of arresting and taking said Luther, proceeded to his house and knocked at the door, and, not being able to obtain admission therein, forced the latch of the door of said house, and entered the same for the purpose of making said arrest, doing as little damage as possible.
11th. That at the time these defendants were ordered to arrest the said Martin Luther, as before stated, the town of Warren was in danger of an attack from the said Martin Luther and his confederates, and the inhabitants of said town were in great alarm on account thereof. [48 U.S. 1, 11] And the counsel for the plaintiff, to maintain and prove the issue on his part, offered in evidence the following matters, facts, and things, in manner following, to wit:--
1st. The plaintiff offered in evidence the proceedings and resolutions of a convention of the State of Rhode Island and Providence Plantations, passed 29th May, 1790, a copy whereof is hereunto annexed, marked A.
2d. The plaintiff offered in evidence the report of a committee of the House of Representatives of the State of Rhode Island, &c., made in June, 1829, upon certain memorials to them directed therein, praying for an extension of the right of suffrage in said State, a copy of which is hereunto annexed, marked B.
3d. The plaintiff offered in evidence resolutions passed by the General Assembly of said State, at their session, January, 1841, a copy of which is hereunto annexed, Marked C.
4th. The plaintiff then offered in evidence the memorial addressed to said Assembly, at said session, by Elisha Dillingham and others, a copy of which is hereunto annexed, marked D.

5th. The plaintiff offered evidence to prove that, in the last part of the year 1840, and in the year 1841, associations were formed in many, if not in all, the towns in the State, called 'Suffrage Associations,' the object of which was to diffuse information among the people upon the question of forming a written republican constitution, and of extending the right of suffrage. To prove this, he offered the officers and members of said associations, also the declaration of principles of said associations, passed February 7, 1841, and the proceedings of a meeting thereof on the 13th day of April, 1841; and also offered witnesses to prove that a portion of the people of this State assembled at Providence, on the 17th day of April, 1841, under a call from the Rhode Island Suffrage Association, to take into consideration certain matters connected with the existing state of suffrage in said State, and to prove the proceedings of said meeting; and this he offered to prove by the testimony of the chairman of said meeting, and the clerk of the same, and of other persons present thereat; all of which proceedings and declaration, resolutions, &c., are hereunto annexed, marked E.



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