THE RHODE ISLAND GOVERNMENT.*

THE facts necessary to the understanding of these cases are sufficiently set forth in the commencement of Mr. Webster's argument. The event out of which the cases arose is known in popular language as the Dorr Rebellion. The first case came up by writ of error from the Circuit Court of Rhode Island, in which the jury, under the rulings of the court (Mr. Justice Story), found a verdict for the defendants; the second case came up by a certificate of a division of opinion. The allegations, evidence, and arguments were the same in both cases.

The first case was argued by Mr. Hallet and Mr. Clifford (Attorney-General) for the plaintiffs in error, and by Mr. Whipple and Mr. Webster for the defendants in error. Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice McKinley were absent from the court, in consequence of ill health. Chief Justice Taney delivered the opinion of the court, affirming the judgment of the court below in the first case, and dismissing the second for want of jurisdiction. Mr. Justice Woodbury dissented, and delivered a very elaborate opinion in support of his view of the subject.

THERE is something novel and extraordinary in the case now before the court. All will admit that it is not such a one as is usually presented for judicial consideration.

It is well known, that in the years 1841 and 1842 political agitation existed in Rhode Island. Some of the citizens of that State undertook to form a new constitution of government, beginning their proceedings towards that end by meetings of the people, held without authority of law, and conducting those pro

An Argument made in the Supreme Court of the United States, on the 27th of January, 1818, in the case of Martin Luther against Luther M. Borden and others. The case of Rachel Luther against the same defendants was before the court at the same time.

ceedings through such forms as led them, in 1842, to say that they had established a new constitution and form of government, and placed Mr. Thomas W. Dorr at its head. The previously existing, and then existing, government of Rhode Island treated these proceedings as nugatory, so far as they went to establish a new constitution; and criminal, so far as they proposed to confer authority upon any persons to interfere with the acts of the existing government, or to exercise powers of legislation, or administration of the laws. All will remember that the state of things approached, if not actual conflict between men in arms, at least the "perilous edge of battle." Arms were resorted to, force was used, and greater force threatened. In June, 1842, this agitation subsided. The new government, as it called itself, disappeared from the scene of action. The former government, the Charter government, as it was sometimes styled, resumed undisputed control, went on in its ordinary course, and the peace of the State was restored.

But the past had been too serious to be forgotten. The legislature of the State had, at an early stage of the troubles, found it necessary to pass special laws for the punishment of the persons concerned in these proceedings. It defined the crime of treason, as well as smaller offences, and authorized the declaration of martial law. Governor King, under this authority, proclaimed the existence of treason and rebellion in the State, and declared the State under martial law. This having been done, and the ephemeral government of Mr. Dorr having disappeared, the grand juries of the State found indictments against several persons for having disturbed the peace of the State, and one against Dorr himself for treason. This indictment came on in the Supreme Court of Rhode Island in 1844, before a tribunal admitted on all hands to be the legal judicature of the State. He was tried by a jury of Rhode Island, above all objection, and after all challenge. By that jury, under the instructions of the court, he was convicted of treason, and sentenced to imprisonment for life.

Now an action is brought in the courts of the United States, and before your honors, by appeal, in which it is attempted to prove that the characters of this drama have been oddly and wrongly cast; that there has been a great mistake in the courts of Rhode Island. It is alleged, that Mr. Dorr, instead of being

a traitor or an insurrectionist, was the real governor of the State at the time; that the force used by him was exercised in defence of the constitution and laws, and not against them; that he who opposed the constituted authorities was not Mr. Dorr, but Governor King; and that it was he who should have been indicted, and tried, and sentenced. This is rather an important mistake, to be sure, if it be a mistake. "Change places," cries poor Lear, "change places, and handy-dandy, which is the justice and which the thief?" So our learned opponents say, "Change places, and, handy-dandy, which is the governor and which the rebel?" The aspect of the case is, as I have said, novel. It may perhaps give vivacity and variety to judicial investigations. It may relieve the drudgery of perusing briefs, demurrers, and pleas in bar, bills in equity and answers, and introduce topics which give sprightliness, freshness, and something of an uncommon public interest to proceedings in courts of law.

However difficult it may be, and I suppose it to be wholly impossible, that this court should take judicial cognizance of the questions which the plaintiff has presented to the court below, yet I do not think it a matter of regret that the cause has come hither. It is said, and truly said, that the case involves the consideration and discussion of what are the true principles of gov ernment in our American system of public liberty. This is very right. The case does involve these questions, and harm can never come from their discussion, especially when such discussion is addressed to reason and not to passion; when it is had before magistrates and lawyers, and not before excited masses out of doors. I agree entirely that the case does raise considerations, somewhat extensive, of the true character of our American system of popular liberty; and although I am constrained to differ from the learned counsel who opened the cause for the plaintiff in error, on the principles and character of that American liberty, and upon the true characteristics of that American system on which changes of the government and constitution, if they become necessary, are to be made, yet I agree with him that this case does present them for consideration.

Now, there are certain principles of public liberty, which, though they do not exist in all forms of government, exist, nevertheless, to some extent in different forms of government. The

protection of life and property, the habeas corpus, trial by jury, the right of open trial, these are principles of public liberty existing in their best form in the republican institutions of this country, but, to the extent mentioned, existing also in the constitution of England. Our American liberty, allow me to say, therefore, has an ancestry, a pedigree, a history. Our ancestors brought to this continent all that was valuable, in their judgment, in the political institutions of England, and left behind them all that was without value, or that was objectionable. During the colonial period they were closely connected of course with the colonial system; but they were Englishmen, as well as colonists, and took an interest in whatever concerned the mother country, especially in all great questions of public liberty in that country. They accordingly took a deep concern in the revolution of 1688. The American colonists had suffered from the tyranny of James the Second. Their charters had been wrested from them by mockeries of law, and by the corruption of judges in the city of London; and in no part of England was there more gratification, or a more resolute feeling, when James abdicated and William came over, than in the American colonies. All know that Massachusetts immediately overthrew what had been done under the reign of James, and took possession of the colonial fort in the harbor of Boston in the name of the new king.

When the United States separated from England, by the Declaration of 1776, they departed from the political maxims and examples of the mother country, and entered upon a course more exclusively American. From that day down, our institutions and our history relate to ourselves. Through the period. of the Declaration of Independence, of the Confederation, of the Convention, and the adoption of the Constitution, all our public acts are records out of which a knowledge of our system of American liberty is to be drawn.

From the Declaration of Independence, the governments of what had been colonies before were adapted to their new condition. They no longer owed allegiance to crowned heads. No tie bound them to England. The whole system became entirely popular, and all legislative and constitutional provisions had regard to this new, peculiar, American character, which they had assumed. Where the form of government was already well enough, they let it alone. Where reform was necessary,

they reformed it. What was valuable, they retained; what was essential, they added; and no more. Through the whole proceeding, from 1776 to the latest period, the whole course of American public acts, the whole progress of this American system, was marked by a peculiar conservatism. The object was to do what was necessary, and no more; and to do that with the utmost temperance and prudence.

Now, without going into historical details at length, let me state what I understand the American principles to be, on which this system rests.

First and chief, no man makes a question, that the people are the source of all political power. Government is instituted for their good, and its members are their agents and servants. He who would argue against this must argue without an adversary. And who thinks there is any peculiar merit in asserting a doctrine like this, in the midst of twenty millions of people, when nineteen millions nine hundred and ninety-nine thousand nine hundred and ninety-nine of them hold it, as well as himself? There is no other doctrine of government here; and no man imputes to another, and no man should claim for himself, any peculiar merit for asserting what every body knows to be true, and nobody denies. Why, where else can we look but to the people for political power, in a popular government? We have no hereditary executive, no hereditary branch of the legislature, no inherited masses of property, no system of entails, no long trusts, no long family settlements, no primogeniture. Every estate in the country, from the richest to the poorest, is divided among sons and daughters alike. Alienation is made as easy as possible; everywhere the transmissibility of property is perfectly free. The whole system is arranged so as to produce, as far as unequal industry and enterprise render it possible, a universal equality among men; an equality of rights absolutely, and an equality of condition, so far as the different characters of individuals will allow such equality to be produced. He who considers that there may be, is, or ever has been, since the Declaration of Independence, any person who looks to any other source of power in this country than the people, so as to give peculiar merit to those who clamor loudest in its assertion, must be out of his mind, even more than Don Quixote. His imagination was only perverted. He saw things not as they