THE DECISIONS OF THE Supreme Court of the United States, AT JANUARY TERM, 1849. 1*] *MARTIN LUTHER, Plaintiff in Error, that it had been adopted and ratified by a majority V. of the people of the State, and was the paramount law and constitution of Rhode Island. Under it, elections were held for Governor, mem LUTHER M. BORDEN et al., Defendants in bers of the Legislature, and other officers, who as Error.1 RACHEL LUTHER, Complainant, V. LUTHER M. BORDEN et al., Defendants. sembled together in May, 1842, and proceeded to organize the new government. But the charter government did not acquiesce in these proceedings. n the contrary, it passed stringent laws, and finally passed an act declaring the State under martial law. In May, 1843, a new constitution, which had been framed by a convention called together by the charter government, went into operation, and has continued ever since. Trespass-justification, martial law, military officer acting under orders-power to recog The question which of the two opposing governnize State government as duly constituted, ments was the legitimate one, viz., the charter gov vested in Congress-decisions of State courts ernment, or the government established by the voluntary convention, has not heretofore been rethereon-President's power under statute-garded as a judicial one in any of the State courts. State government may declare martial law -Legislature judges of necessary exigencycertificate of division of opinion-practice. At the period of the American Revolution, Rhode Island did not, like the other States, adopt a new constitution, but continued the form of government established by the charter of Charles II., making only such alterations, by acts of the Legislature, as were necessary to adapt it to their condition and rights as an independent State. But no mode of proceeding was pointed out by which amendments might be made. In 1841 a portion of the people held meetings and formed associations, which resulted in the election of a convention to form a new constitution, to be submitted to the people for their adoption or rejection. This convention framed a constitution, directed a vote to be taken upon it, declared afterwards 1.-Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice McKinley were absent on account of Ill health when this case was argued. NOTE. What is a State. See note to 8 L. ed. U. S. 25. Martial law, what is; different from military law; extent of; in whom the power to declare resides; when it may be exercised; suspension of writ of habeas corpus practically equivalent thereto, in this country; occasions of such suspension; what is military necessity. The Political Department has always determined whether a proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision. The courts of Rhode Island have decided in fa vor of the validity of the charter government, and the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State. The question whether or not a majority of [*% those persons entitled to suffrage voted to adopt a constitution cannot be settled in a judicial proceeding. The Constitution of the United States has treated the subject as political in its nature, and placed the power of recognizing a State governUnder the existment in the hands of Congress. ing legislation of Congress, the exercise of this power by courts would be entirely inconsistent with that legislation. The President of the United States is vested with certain power by an act of Congress, and in this case he exercised that power by recognizing the charter government. Although no State could establish a permanent Martial law exists only in time of war, and originates in military necessity. It derives no authority from the civil law, nor assistance from the civil tribunals, for it overrules, suspends and replaces both. Idem; 1 Kent's Com. 7th ed. 370; marg. p. 341, note a. It is from its very nature an arbitrary power, and extends to all the inhabitants of the district Martial law has been confounded with military where it is in force. Military law extends to all law, but the two are very different. The latter con- military persons, but not to those in a civil capacsists of the "rules and articles of war," and other ity. De Hart, Ch. 2; Hough on Courts-Martial, statutory provisions for the government of mili-384: Harwood, Naval Courts-Martial, 7, 8. tary persons, to which may be added the unwritten The right to declare, apply and enforce martial or common law of the "usage and custom of mill-law, is one of the sovereign powers, and resides in tary service." It exists equally in peace and in war, and is as fixed and definite In Its provisions as the admiralty, ecclesiastical, or any other branch of law, and is equally, with them, a part of the general law of the land. Halleck's International Law and Laws of War, 373. Martial law is quite distinct from military law. the governing authority of the State, and it de pends upon the constitution of the State whether restrictions and rules are to be adopted for its application, or whether it is to be exercised according to the exigencies which call it into existence. Halleck's International Law and Laws of War, 873. military government, yet it may use its military power to put down an armed Insurrection, too strong to be controlled by the civil authority. The State must determine for itself what degree of force the crisis demands. After martial law was declared, an officer might lawfully arrest any one who he had reasonable grounds to believe was engaged in the insurrection, or order a house to be forcibly entered. But no more force can be used than is necessary to accomplish the object; and if the power is exercised for the purposes of oppression, or any injury, wilfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable. T HESE 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 ar: gued 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 the 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 defense 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, etc., doing as little injury as possible, etc., and searched said house, etc. 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 8*] of the court, found a verdict for the defendants. During the trial, the counsel for the It cannot de despotically or arbitrarily exercised any more than any other belligerent right can be BO exercised. Cushing, Opinions of U. S. Atty'sGen. Vol. VIII. p. 365 et seq.; Wolfins Jus Gentlum, sec. 863; Grotius de Jur. Bel. a Pac. lib. 2, Cap. 8; Kluber, Droit des Gens, sec. 255; O'Brien's American Military Law, 28. The laws of different countries differ in regard to the application and exercise of this power. Block, Dic. de l'Admin. Francaise, passim: Esriche, Dic. de Leg. y Jurisprudientia, passim: Cushing, Opinlons of U. S. Atty's Gen. Vol. VIII. 336, et seq. Hale, Hist. Com. Law, 39. In the state of slege, the place is put under martial law, or under the authority of the military power, where the civil law is suspended for the time being, or at least is made subordinate to the military. Halleck on International Law and Laws of War, 874. There are numerous instances in which martial law has been declared and enforced in time of rebellion or insurrection, not only in India and | plaintiff took a bill of exceptions, which was as follows: Rhode Island District, sc.: Martin Luther V. Luther M. Borden et al. Circuit Court of the United States, November Term, 1843. Be it remembered, that, upon the trial of the aforesaid issue before said jury, duly impaneled 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 gov ernment 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, neld 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 beBritish colonial possessions, but also in England and Ireland. No act of parliament seems to be required to precede such declaration, although it is usually followed by an act of indemnity, when the disturbances which called it forth are at an end, in order to give constitutional existence to the fact of martial law. Stephen, Commentaries, Vol. II. p. 602; Hausard, Parl. Deb. N. S. Vol. XI.; third series, Vol. CXV.; Grant v. Gould, 2 H. Black. 98; 1 Black. Com. 136; Bowyer, Universal Pub Law, 424; Halleck, Internat. Law and Laws of War, 375. The suspension of the writ of habeas corpus is not, in itself, a declaration of martial law; it is simply an incident, though a very important incldent, to such declaration. But practically, in England and the United States, the essence of martial law is the suspension of the privilege of the writ of habeas corpus, and a declaration of martial law would be utterly useless unless accompanied by the suspension of the privilege of such writ. Hence, in the United States the two, |