Chapter 100

2. The second is, that its exercise shall be prescribed by previous law; its qualifications shall be prescribed by previous law; the time and place of its exercise shall be prescribed by previous law; the manner of its exercise, under whose supervision (always sworn officers of the law), is to be prescribed. And then, again, the results are to be certified to the central power by some certain rule, by some known public officers, in some clear and definite form, to the end that two things may be done: first, that every man entitled to vote may vote; second, that his vote may be sent forward and counted, and so he may exercise his part of sovereignty, in common with his fellow-citizens.

In the exercise of political power through representatives we know nothing, we never have known any thing, but such an exercise as should take place through the prescribed forms of law. When we depart from that, we shall wander as widely from the American track as the pole is from the track of the sun.

I have said that it is one principle of the American system, that the people limit their governments, National and State. They do so; but it is another principle, equally true and certain, and, according to my judgment of things, equally important, that the people often _limit themselves_. They set bounds to their own power. They have chosen to secure the institutions which they establish against the sudden impulses of mere majorities. All our institutions teem with instances of this. It was their great conservative principle, in constituting forms of government, that they should secure what they had established against hasty changes by simple majorities. By the fifth article of the Constitution of the United States, Congress, two thirds of both houses concurring, may propose amendments of the Constitution; or, on the application of the legislatures of two thirds of the States, may call a convention; and amendments proposed in either of these forms must be ratified by the legislatures or conventions of three fourths of the States. The fifth article of the Constitution, if it was made a topic for those who framed the "people's constitution" of Rhode Island, could only have been a matter of reproach. It gives no countenance to any of their proceedings, or to any thing like them. On the contrary, it is one remarkable instance of the enactment and application of that great American principle, that the constitution of government should be cautiously and prudently interfered with, and that changes should not ordinarily be begun and carried through by bare majorities.

But the people limit themselves also in other ways. They limit themselves in the first exercise of their political rights. They limit themselves, by all their constitutions, in two important respects; that is to say, in regard to the qualifications of _electors_, and in regard to the qualifications of the _elected_. In every State, and in all the States, the people have precluded themselves from voting for everybody they might wish to vote for; they have limited their own right of choosing. They have said, We will elect no man who has not such and such qualifications. We will not vote ourselves, unless we have such and such qualifications. They have also limited themselves to certain prescribed forms for the conduct of elections. They must vote at a particular place, at a particular time, and under particular conditions, or not at all. It is in these modes that we are to ascertain the will of the American people; and our Constitution and laws know no other mode. We are not to take the will of the people from public meetings, nor from tumultuous assemblies, by which the timid are terrified, the prudent are alarmed, and by which society is disturbed. These are not American modes of signifying the will of the people, and they never were. If any thing in the country, not ascertained by a regular vote, by regular returns, and by regular representation, has been established, it is an exception, and not the rule; it is an anomaly which, I believe, can scarcely be found.

It is true that at the Revolution, when all government was immediately dissolved, the people got together, and what did they do? Did they exercise sovereign power? They began an inceptive organization, the object of which was to bring together representatives of the people, who should form a government. This was the mode of proceeding in those States where their legislatures were dissolved. It was much like that had in England upon the abdication of James the Second. He ran away, he abdicated. He threw the great seal into the Thames. I am not aware that, on the 4th of May, 1842, any great seal was thrown into Providence River! But James abdicated, and King William took the government; and how did he proceed? Why, he at once requested all who had been members of the old Parliament, of any regular Parliament in the time of Charles the Second, to assemble. The Peers, being a standing body, could of course assemble; and all they did was to recommend the calling of a convention, to be chosen by the same electors, and composed of the same numbers, as composed a Parliament. The convention assembled, and, as all know, was turned into a Parliament. This was a case of necessity, a revolution. Don't we call it so? And why? Not merely because a new sovereign then ascended the throne of the Stuarts, but because there was a change in the organization of the government. The legal and established succession was broken. The convention did not assemble under any preceding law. There was a _hiatus_, a syncope, in the action of the body politic. This was revolution, and the Parliaments that assembled afterwards referred their legal origin to that revolution.

Is it not obvious enough, that men cannot get together and count themselves, and say they are so many hundreds and so many thousands, and judge of their own qualifications, and call themselves the people, and set up a government? Why, another set of men, forty miles off, on the same day, with the same propriety, with as good qualifications, and in as large numbers, may meet and set up another government; one may meet at Newport and another at Chepachet, and both may call themselves the people. What is this but anarchy? What liberty is there here, but a tumultuary, tempestuous, violent, stormy liberty, a sort of South American liberty, without power except in its spasms, a liberty supported by arms to-day, crushed by arms to-morrow? Is that _our_ liberty?

The regular action of popular power, on the other hand, places upon public liberty the most beautiful face that ever adorned that angel form. All is regular and harmonious in its features, and gentle in its operation. The stream of public authority, under American liberty, running in this channel, has the strength of the Missouri, while its waters are as transparent as those of a crystal lake. It is powerful for good. It produces no tumult, no violence, and no wrong;--

"Though deep, yet clear; though gentle, yet not dull; Strong, without rage; without o'erflowing, full."

Another American principle growing out of this, and just as important and well settled as is the truth that the people are the source of power, is, that, when in the course of events it becomes necessary to ascertain the will of the people on a new exigency, or a new state of things or of opinion, the legislative power provides for that ascertainment by an ordinary act of legislation. Has not that been our whole history? It would take me from now till the sun shall go down to advert to all the instances of it, and I shall only refer to the most prominent, and especially to the establishment of the Constitution under which you sit. The old Congress, upon the suggestion of the delegates who assembled at Annapolis in May, 1786, recommended to the States that they should send delegates to a convention to be holden at Philadelphia to form a Constitution. No article of the old Confederation gave them power to do this; but they did it, and the States did appoint delegates, who assembled at Philadelphia, and formed the Constitution. It was communicated to the old Congress, and that body recommended to the States to make provision for calling the people together to act upon its adoption. Was not that exactly the case of passing a law to ascertain the will of the people in a new exigency? And this method was adopted without opposition, nobody suggesting that there could be any other mode of ascertaining the will of the people.

My learned friend went through the constitutions of several of the States. It is enough to say, that, of the old thirteen States, the constitutions, with but one exception, contained no provision for their own amendment. In New Hampshire there was a provision for taking the sense of the people once in seven years. Yet there is hardly one that has not altered its constitution, and it has been done by conventions called by the legislature, as an ordinary exercise of legislative power. Now what State ever altered its constitution in any other mode? What alteration has ever been brought in, put in, forced in, or got in anyhow, by resolutions of mass meetings, and then by applying force? In what State has an assembly, calling itself the people, convened without law, without authority, without qualifications, without certain officers, with no oaths, securities, or sanctions of any kind, met and made a constitution, and called it the constitution of the STATE? There must be some authentic mode of ascertaining the will of the people, else all is anarchy. It resolves itself into the law of the strongest, or, what is the same thing, of the most numerous for the moment, and all constitutions and all legislative rights are prostrated and disregarded.

But my learned adversary says, that, if we maintain that the people (for he speaks in the name and on behalf of the people, to which I do not object) cannot commence changes in their government but by some previous act of legislation, and if the legislature will not grant such an act, we do in fact follow the example of the Holy Alliance, "the doctors of Laybach," where the assembled sovereigns said that all changes of government must proceed from sovereigns; and it is said that we mark out the same rule for the people of Rhode Island.

Now will any man, will my adversary here, on a moment's reflection, undertake to show the least resemblance on earth between what I have called the American doctrine, and the doctrine of the sovereigns at Laybach? What do I contend for? I say that the will of the people must prevail, when it is ascertained; but there must be some legal and authentic mode of ascertaining that will; and then the people may make what government they please. Was that the doctrine of Laybach? Was not the doctrine there held this,--that the _sovereigns_ should say what changes shall be made? Changes must proceed from them; new constitutions and new laws emanate from them; and all the people had to do was to submit. That is what they maintained. All changes began with the sovereigns, and ended with the sovereigns. Pray, at about the time that the Congress of Laybach was in session, did the allied powers put it to the people of Italy to say what sort of change they would have? And at a more recent date, did they ask the citizens of Cracow what change they would have in their constitution? Or did they take away their constitution, laws, and liberties, by their own sovereign act? All that is necessary here is, that the will of the people should be ascertained, by some regular rule of proceeding, prescribed by previous law. But when ascertained, that will is as sovereign as the will of a despotic prince, of the Czar of Muscovy, or the Emperor of Austria himself, though not quite so easily made known. A ukase or an edict signifies at once the will of a despotic prince; but that will of the people, which is here as sovereign as the will of such a prince, is not so quickly ascertained or known; and thence arises the necessity for suffrage, which is the mode whereby each man's power is made to tell upon the constitution of the government, and in the enactment of laws.

One of the most recent laws for taking the will of the people in any State is the law of 1845, of the State of New York. It begins by recommending to the people to assemble in their several election districts, and proceed to vote for delegates to a convention. If you will take the pains to read that act, it will be seen that New York regarded it as an ordinary exercise of legislative power. It applies all the penalties for fraudulent voting, as in other elections. It punishes false oaths, as in other cases. Certificates of the proper officers were to be held conclusive, and the will of the people was, in this respect, collected essentially in the same manner, supervised by the same officers, under the same guards against force and fraud, collusion and misrepresentation, as are usual in voting for State or United States officers.

We see, therefore, from the commencement of the government under which we live, down to this late act of the State of New York, one uniform current of law, of precedent, and of practice, all going to establish the point that changes in government are to be brought about by the will of the people, assembled under such legislative provisions as may be necessary to ascertain that will, truly and authentically.

In the next place, may it please your honors, it becomes very important to consider what bearing the Constitution and laws of the United States have upon this Rhode Island question. Of course the Constitution of the United States recognizes the existence of States. One branch of the legislature of the United States is composed of Senators, appointed by the States, in their State capacities. The Constitution of the United States[1] says that "the United States shall guarantee to each State a republican form of government, and shall protect the several States against invasion; and on application of the legislature, or of the executive when the legislature cannot be convened, against domestic violence." Now, I cannot but think this a very stringent article, drawing after it the most important consequences, and all of them _good_ consequences. The Constitution, in the section cited, speaks of States as having existing legislatures and existing executives; and it speaks of cases in which violence is practised or threatened against the State, in other words, "domestic violence"; and it says the State shall be protected. It says, then, does it not? that the existing government of a State shall be protected. My adversary says, if so, and if the legislature would not call a convention, and if, when the people rise to make a constitution, the United States step in and prohibit them, why, the rights and privileges of the people are checked, controlled. Undoubtedly. The Constitution does not proceed on the _ground_ of revolution; it does not proceed on any _right_ of revolution; but it does go on the idea, that, within and under the Constitution, no new form of government can be established in any State, without the authority of the existing government.

Admitting the legitimacy of the argument of my learned adversary, it would not authorize the inference he draws from it, because his own case falls within the same range. He has proved, he thinks, that there was an existing government, a paper government, at least; a rightful government, as he alleges. Suppose it to be rightful, in his sense of right. Suppose three fourths of the people of Rhode Island to have been engaged in it, and ready to sustain it. What then? How is it to be done without the consent of the previous government? How is the fact, that three fourths of the people are in favor of the new government, to be legally ascertained? And if the existing government deny that fact, and if that government hold on, and will not surrender till displaced by force, and if it is threatened by force, then the case of the Constitution arises, and the United States must aid the government that is in, because an attempt to displace a government by force is "domestic violence." It is the exigency provided for by the Constitution. If the existing government maintain its post, though three fourths of the State have adopted the new constitution, is it not evident enough that the exigency arises in which the constitutional power here must go to the aid of the existing government? Look at the law of 28th February, 1795.[2] Its words are, "And in case of an insurrection in any State, _against the government thereof_, it shall be lawful for the President of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection." Insurrection against the _existing_ government is, then, the thing to be suppressed.

But the law and the Constitution, the whole system of American institutions, do not contemplate a case in which a resort will be necessary to proceedings _aliunde_, or outside of the law and the Constitution, for the purpose of amending the frame of government. They go on the idea that the States are all republican, that they are all representative in their forms, and that these popular governments in each State, the annually created creatures of the people, will give all proper facilities and necessary aids to bring about changes which the people may judge necessary in their constitutions. They take that ground and act on no other supposition. They assume that the popular will in all particulars will be accomplished. And history has proved that the presumption is well founded.

This, may it please your honors, is the view I take of what I have called the American system. These are the methods of bringing about changes in government.

Now, it is proper to look into this record, and see what the questions are that are presented by it, and consider,--

1. Whether the case is one for judicial investigation at all; that is, whether this court can try the matters which the plaintiff has offered to prove in the court below; and,

2. In the second place, whether many things which he did offer to prove, if they could have been and had been proved, were not acts of criminality, and therefore no justification; and,

3. Whether all that was offered to be proved would show that, in point of fact, there had been established and put in operation any new constitution, displacing the old charter government of Rhode Island.

The declaration is in trespass. The writ was issued on the 8th of October, 1842, in which Martin Luther complains that Luther M. Borden and others broke into his house in Warren, Rhode Island, on the 29th of June, 1842, and disturbed his family and committed other illegal acts.

The defendant answers, that large numbers of men were in arms, in Rhode Island, for the purpose of overthrowing the government of the State, and making war upon it; and that, for the preservation of the government and people, martial law had been proclaimed by the Governor, under an act of the legislature, on the 25th of June, 1842. The plea goes on to aver, that the plaintiff was aiding and abetting this attempt to overthrow the government, and that the defendant was under the military authority of John T. Child, and was ordered by him to arrest the plaintiff; for which purpose he applied at the door of his house, and being refused entrance he forced the door.

The action is thus for an alleged trespass, and the plea is justification under the law of Rhode Island. The plea and replications are as usual in such cases in point of form. The plea was filed at the November term of 1842, and the case was tried at the November term of 1843, in the Circuit Court in Rhode Island. In order to make out a defence, the defendant offered the charter of Rhode Island, the participation of the State in the Declaration of Independence, its uniting with the Confederation in 1778, its admission into the Union in 1790, its continuance in the Union and its recognition as a State down to May, 1843, when the constitution now in force was adopted. Here let it be particularly remarked, that Congress admitted Rhode Island into the Constitution under this identical old charter government, thereby giving sanction to it as a republican form of government. The defendant then refers to all the laws and proceedings of the Assembly, till the adoption of the present constitution of Rhode Island. To repel the case of the defendant, the plaintiff read the proceedings of the old legislature, and documents to show that the idea of changing the government had been entertained as long ago as 1790. He read also certain resolutions of the Assembly in 1841, memorials praying changes in the constitution, and other documents to the same effect. He next offered to prove that suffrage associations were formed throughout the State in 1840 and 1841, and that steps were taken by them for holding public meetings; and to show the proceedings had at those meetings. In the next place, he offered to prove that a mass convention was held at Newport, attended by over four thousand persons, and another at Providence, at which over six thousand attended, at which resolutions were passed in favor of the change. Then he offered to prove the election of delegates; the meeting of the convention in October, 1841, and the draughting of the Dorr constitution; the reassembling in 1841, the completion of the draught, its submission to the people, their voting upon it, its adoption, and the proclamation on the 13th of January, 1842, that the constitution so adopted was the law of the land.

That is the substance of what was averred as to the formation of the Dorr constitution. The plaintiff next offered to prove that the constitution was adopted by a large majority of the qualified voters of the State; that officers were elected under it in April, 1842; that this new government assembled on the 3d of May; and he offered a copy of its proceedings. He sets forth that the court refused to admit testimony upon these subjects, and to these points; and ruled that the old government and laws of the State were in full force and power, and then existing, when the alleged trespass was made, and that they justified the acts of the defendants, according to their plea.

I will give a few references to other proceedings of this new government. The new constitution was proclaimed on the 13th of January, 1842, by some of the officers of the convention. On the 13th of April, officers were appointed under it, and Mr. Dorr was chosen governor. On Tuesday, the 3d of May, the new legislature met, was organized, and then, it is insisted, the new constitution became the law of the land. The legislature sat through that whole day, morning and evening; adjourned; met the next day, and sat through all that day, morning and evening, and did a great deal of paper business. It went through the forms of choosing a Supreme Court, and transacting other business of a similar kind, and on the evening of the 4th of May it adjourned, to meet again on the first Monday of July, in Providence,

"And word spake never more."

It never reassembled. This government, then, whatever it was, came into existence on the _third_ day of May, and went out of existence on the _fourth_ day of May.

I will now give some references concerning the new constitution authorized by the government, the old government, and which is now the constitution of Rhode Island. It was framed in November, 1842. It was voted upon by the people on the 21st, 22d, and 23d days of November, was then by them accepted, and became by its own provisions the constitution of Rhode Island on the first Tuesday of May, 1843.