Herald of the times, and Rhode Islander. [volume] (Newport, R.I.) 1846-1849, 1848-02-10

unuer the same RudfuS dBdiiist ioiSc anu iiduu,
colluslon and misrepresentation, that are ap-
Piled in voting for State or United States oiil-
GERS
4 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
changcs 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 automatically
| In the next place, may II please your honors,
il become very important t0 consider what bear
ing the constitution and laws of the United
States have upon he Rhode Island question:
OF course the constitution of the United States
recognizes the existence Of States. One branch
of the Legislature ofthe United States is com
posed of Senators appointed by the States, IN
their State capacities. The constitution of the
United States, (Act ~. A. says that " the
United States shall guarantee to each State
republican form Of government, and shall pro-
tect the several St'tes against INVASION, and on
The application of the IL islature, or OF the exc
cutiye when the Legislature cannot be con,
yened, against domestic violence Now
cannot but think this very strh1ehl ar'cie'
drawing after 1t the most important cot Ne1uch-
ccs and all goOd consequences. The conFu'u
tion in the section cited, speaks of States h~V-
ing existing legislatures and existing eXccu-
tves and it speaks of cases in which violence
\ is prlclis ID or threatened against the State
|. - domestic yiolcnce;' and II says the State
shall be protected. 1t says then, does 1t not,
hat the existing government OF State shall
! BE- protected My adversary says, If so, and
| if the Legislature would not call convention,
and il, when the people rise To make constl-
tuition, the United States step IN and prohibit
them, why the rights and privileges ofthe peo-
/ pie are chccked-controled Cndoubtedly!-
4 The constitution does not proceed on the ground
/ of revolution but 1t does go on the idea that
within and under the constitution, no new con-
/ stution can be established in any State with,
, out the authority of the existing government.
/. This cannot help the gentleman's argument
much, because his own case falls within the
range. lie has proved, he thinks, that there
was an existing government, paper govern
| ment at least-a rghiful government as he al
1 leges. Suppose it to be righiiul. Suppose
three-fourths of the people of Rhode Island to
have been engaged in 1t and ready to sustain
il. What them How is it to be done with
out the consent of the existing government =
Because If that government holds on and VIII
not surrender tlll displaced by force, and II 1t Is
threatened by force, then the case OF the constl-
tuition arises, and the l.. states must and the
government that is in, because an attempt To
displacc "A Government bv force Is =" domestic
violence" Ii is the case provided for by the
constitution ifthe existing government hold
on maintain It's post, though thrcc-iourths OF
the Stale have adopted the new constitution
is il not evident that the eXigcncy arises IN
which the constitutional power here must go
to the aid of the existing government Look
al the law of Feb. 2Sth, l795-m Vol. OF
the Statutes at large, page l2l "and III case
of instruction against any State, or against me
gore,n0,cat hcrcof, it shall be lawful for the
President. on application of the Legislature, to
call out the militia of other States as he may
Judge sufficient to suppress such insurrecuon.
Insurrection against the etiSt'Rg government Is
to BE- suppressed.
\ But the law and The constitution the whole
! system of American institutions, do not con-
/ template case as likely to arise under our sys-
/ tenn. in which resort will be necessary topro-
/ cecdings aliuJtde. or outside of the law and the
! constitution, for the purpose OF amending a
| constitution. Ii goes on the ground that The
! States are all republican, that they are all rep
| rcsentative in their forms, and that these pop
! ular governments in each state, the annually
! created creatures Of the people, will give all
! proper facilities and necessary aids to bring
! about changes that the people may Judge nee
! cssary in their constitutions. 1T takes that
| ground and acts on no other supposltion. IL
assumes that the popular will be accomplished
in all particulars. And history has proved that
/ the presumption is well founded.
\ Now this is the view take of what have
called the American system. These are the
Il l. a -, ,,l,, t,.l,a IN
/ ment.
! Now it is proper to look into this record and
I see what the questions are, that are presented
| by it, and consider,
Il /. Whether the case is one for judicial in
/ yestigation at all-that is, whether this Court
| can try the matters which the plaintiff has of
fred Ia prove in the Circuit Court below -
and
/ ,. 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 crininality, and therefore no justification ;
and
\ 3. Whether all that was offered to be proved
would show that, i'll point OF fact there had been
;, established and put in operation any new con-
stituton TO displacc the old charter government
of Rhode Island.
1 III u''ldldllpu II III l''p'S'' = l' Nv
was issued on the Sth of October, 1912, IN
which Martin Luther complains that Luther
Borden and others broke into his house in
Warren, Rhode lsland on the 29th Of June,
I 1912, and disturbed his family &c.
The defendant answers that large numbers
ofmen. III arms in Rhode Island for the pur-
pose of overhrOwing the government OF the
state, made war upon i; ; that for the preser-
vation of the government and people the mar
tial law had been proclaimed by the Governor,
under AN act of the Legislature on the 25th of
June. 1912. The plea goes on to aver that the
plaintiff was aiding and abettng the attempt
To overthrow the government, and that the de-
iendant was uuder the military authority of
John +. Child, and was ordered to arrest the
plaintiff. for which purpose he applied at the
door of his house, and being refused hc forced
the door.
The action is for trespass and the plea is JUS
tfcation under the law of Rhode Island. The
plea and rcplcatons are as usual in such cases
\ The plea was filed at the November term Of
1912 and the case was tried AT the November
term Of 1913, in the Circuit Court IN Rhode
Island And in order to make out defence,
the defendant offered the Charter of Rhode Is