"And we further resolve and declare, for ourselves, and in behalf of the people whom we represent, that we will establish said constitution, and sustain and defend the same by all necessary means.

"Resolved, That the officers of this convention make proclamation of the return of the votes upon the constitution, and that the same has been adopted and become the constitution of this State; and that they cause said proclamation to be published in the newspapers of the same.

"Resolved, That a certified copy of the report of the committee appointed to count the votes upon the constitution, and of these resolutions, and of the constitution, be sent to his Excellency the Governor, with a request that he would communicate the same to the two houses of the General Assembly." A copy of which resolutions and proceedings is annexed, marked L c.

And he further offered to prove that the same was sent to said Governor, and by him communicated to the said General Assembly, and by them laid on the table; and that, by a subsequent resolution of the House of Representatives in said General Assembly, the further consideration thereof was indefinitely postponed. All these matters he offered to prove by the production of the original minutes or records of the convention aforesaid, verified by the oaths of the president, vice-presidents, and secretaries thereof; by the report of the committee appointed by said convention to count said votes, verified by the certificate of the secretaries of said convention, and by the oaths of the members of said committee, and by the certificate of Henry Bowen, Secretary of State under the then acting government, and of Thomas A. Jenks, one of the clerks of the then House of Representatives. And he further offered to prove, that, at the same session of said Assembly, a member of the House of Representatives submitted to that body, for their 16*] *action, a resolution referring all the matters connected with the formation and adoption of the aforesaid constitution to a select committee, with instructions to them to ascertain and report the number of votes cast, and the number of persons voting for the same, with full power to send for persons and papers; which resolution was rejected by said House of Representatives, as appears by copies of the records of the said House for said session, hereunto annexed, and marked L a, and the exhibit hereunto annexed, marked L b, and the testimony of witnesses.

19th. The plaintiff then offered to prove that the officers of said convention did make the proclamation required by the said resolution of the said convention; and he offered to prove this by a copy of said proclamation, certified by said officers, the oaths of said officers, and the testimony of other witnesses. See form of proclamation annexed, marked X.

20th. The plaintiff then offered to prove that the said constitution was adopted by a large majority of the male people of this State, of the age of twenty-one years and upwards, who were qualified to vote under said constitution, and also adopted by a majority of the persons entitled to vote for general officers under the then existing laws of the said State,

and according to the provisions thereof; and that so much of the same as relates to the election of the officers named in the sixth section of the fourteenth article of said constitution, on the Monday before the 3d Wednesday of April, A. D. 1842, to wit, on the 18th day of said April, and all the other parts thereof on the first Tuesday of May, 1842, to wit, on the 3d day of said May, and then and there became, and was, the rightful and legal constitution of said State, and paramount law of said State; and this he offered to prove by the production of the original votes or ballots cast or polled by the persons voting for or against the adoption of said constitution, by the production of the original registers of the persons so voting, verified by the oaths of the several moderators and clerks of the meetings held for such votings, by the testimony of all the persons so voting, and by the said constitution.

21st. The plaintiff produced a copy of said constitution, verified by the certificates of Joseph Joslin, president of said convention of delegates elected and assembled as aforesaid, and for the purposes aforesaid, and of Samuel H. Wales, one of the vice-presidents, and of John S. Harris and William Smith, secretaries of the same; and offered the said Joslin, Wales, Harris, and Smith, as witnesses to prove the truth of the matters set forth in said certificates; which said copy, upon the proof aforesaid, he claimed to be a true and authenticated copy of said constitution, and which constitution he claimed to be the paramount law of the said State.

*22d. The plaintiff offered to prove, [*17 that, by virtue of, and in conformity with, the provisions of said constitution, so adopted as aforesaid, the people of said State entitled to vote for general officers, senators and representatives, to the General Assembly of said State, under said constitution, did meet, in legal town and ward meetings, on the third Wednesday of April next preceding the first Tuesday of May, 1842, to wit, on the 18th day of April, 1842, and did elect duly the officers required by said constitution for the formation of the government under said constitution; and that said meetings were conducted and directed according to the provisions of said constitution and the laws of said State; and this he offered to prove by the evidence of the moderators and clerks of said meetings, and the persons present at the same.

23d. The plaintiff offered in evidence that the said general officers, to wit, the Governor, Lieutenant-Governor, Secretary of State, senators and representatives, all constituting the General Assembly of said State under said constitution, did assemble in said city of Providence on the first Tuesday of May, A. D. 1842, to wit, on the 3d day of May, 1842, and did then and there organize a government for the said State, in conformity with the provisions and requirements of said constitution, and did elect, appoint, and qualify officers to carry the said constitution and laws into effect; and, to prove the same, he offered exemplified copies of the acts and doings of said General Assembly, hereunto annexed, and marked N a, N b, N c.

24th. The plaintiff offered in evidence a duly certified copy of that part of the census of the

to the District and State of Rhode Island, etc., hereunto annexed, and marked O.

25th. The plaintiff offered in evidence a certificate signed by Henry Bowen, Secretary of State of the then existing government of the State of Rhode Island, etc., showing the number of votes polled by the freemen in said State for ten years then last past; a copy of which is hereunto annexed, marked P. Also, under the same certificate, an act marked Q. purporting to establish martial law.

26. And the plaintiff offered in evidence an authenticated copy of an act of the General As sembly under the charter government, passed at their June session, A. D. 1842, entitled "An Act to provide for calling a Convention of the People," etc., and an act in amendment thereto; which said copy is hereunto annexed, marked Q &. And also a copy of- -from the records of the House of Representatives (under said government), at their March session, A. D. 1842, hereunto annexed, marked R. 18*] *Whereupon, the counsel for the plaintiff requested the court to charge the jury, that, under the facts offered in evidence by the plaintiff, the constitution and frame of government prepared, adopted, and established in the manner and form set forth and shown hereby was, and became thereby, the supreme law of the State of Rhode Island, and was in full force and effect, as such, during the time set forth in the plaintiff's writ and declaration, when the trespass alleged therein was commit. ted by the defendants, as admitted in their pleas.

That a majority of the free white male citi: zens of Rhode Island, of twenty-one years and upwards, in the exercise of the sovereignty of the people, through the forms and in the manner set forth in said evidence, offered to be proved by the plaintiff, and in the absence, under the then existing frame of government of the said State of Rhode Island, of any provision therein for amending, altering, reforming, changing, or abolishing the said frame of government, had the right to re-assume the powers of government, and establish a written constitution and frame of a republican form of government; and that having so exercised such right as aforesaid, the pre-existing charter gov. ernment, and the authority and the assumed laws under which the defendants in their plea claim to have acted, became null and void and of no effect, so far as they were repugnant to and conflicted with said constitution, and are no justification of the acts of the defendants in the premises.

And the court, pro forma, and upon the understandings of the parties to carry up the rulings and exceptions of the said court to the Supreme Court of the United States, refused to give the said instructions, or to admit in evidence the facts offered to be proved by the plaintiff, but did admit the testimony offered to be proved by the defendants; and did rule that the government and laws, under which they assume in their plea to have acted, were in full force and effect as the frame of government and laws of the State of Rhode Island, and did constitute a justification of the acts of the defendants, as set forth in their pleas.

To which refusals of the court so to instruct

tions so as aforesaid given by the court to the jury, the plaintiff, by his counsel, excepted, and prayed the exceptions to be allowed by the court. And after the said instructions were so refused, and so given as aforesaid, the jury withdrew, and afterwards returned their verdict for the defendants.

And inasmuch as the said several matters of law, and the said several matters of fact, so produced and given in evidence on the part of the said plaintiff and the said defendants, and by "their counsel insisted on and objected (*19 to in manner as aforesaid, do not appear by the record and verdict aforesaid; the said counsel for the plaintiff did then and there propose the aforesaid exceptions to the said refusals and opinions of said court, and requested them to put the seal of said court to this bill of exceptions, containing the said several matters so produced and given in evidence for the party objecting as aforesaid.

And thereupon the judges of the aforesaid court, at the request of the counsel for the party objecting, did put their said seal to this bill of exceptions, the same being found to be true, pursuant to the law in such cases provided, at the term of said court and the trial aforesaid. Joseph Story. [seal.]

The papers referred to in the above bill of exceptions, and made a part of it, were so voluminous that it is impossible to insert them. They constituted a volume of 150 pages. Clifford for the plaintiff in error, although the The case was argued by Mr. Hallett and Mr. Mr. R. J. Walker, and Mr. Clifford. On the brief was signed by Mr. Turner, Mr. Hallett, part of the defendant in error, it was argued by Mr. Whipple and Mr. Webster.

The brief filed on behalf of the plaintiff in error recited the facts contained in the bill of

exceptions and documents attached thereto, in chronological order, and concluded thus:

Points.

And upon these facts the plaintiff in error will maintain, that, by the fundamental principles of government and of the sovereignty of the people acknowledged and acted upon in the United States, and the several States thereof, at least ever since the Declaration of Inde pendence in 1776, the constitution and frame of government prepared, adopted, and established as above set forth was, and became thereby, the supreme fundamental law of the State of Rhode Island, and was in full force and effect, as such, when the trespass alleged in the plaintiff's writ was committed by the defendants.

That this conclusion also follows from one of the foregoing fundamental principles of the American system of government, which is, that government is instituted by the people, and for the benefit, protection, and security of the people, nation, or community. And that when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or [*20 abolish the same, in such manner as shall be judged most conducive to the public weal.

But that, in the case at bar, the argument is sufficient, even should it limit the right (which

the plaintiff disclaims) to a majority of the voting people, such majority having, in fact, adopted and affirmed the said constitution of Rhode Island.

To sustain this general view, the following proposition is submitted as the theory of American government, upon which the decision of this cause must depend.

The institution of American liberty is based upon the principles, that the people are capable of self-government, and have an inalienable right at all times, and in any manner they please, to establish and alter or change the constitution or particular form under which that government shall be effected. This is especially true of the several States composing the Union, subject only to a limitation provided by the United States Constitution, that the State governments shall be republican.

In order to support this proposition, we have to establish the following points:

1st. That the sovereignty of the people is supreme, and may act in forming government without the assent of the existing government. 2d. That the people are the sole judges of the form of government best calculated to promote their safety and happiness.

3d. That, as the sovereign power, they have a right to adopt such form of government.

4th. That the right to adopt necessarily includes the right to abolish, to reform, and to alter any existing form of government, and to substitute in its stead any other that they may judge better adapted to the purposes intended. 5th. That if such right exists at all, it exists in the States under the Union, not as a right of force, but a right of sovereignty; and that those who oppose its peaceful exercise, and not those who support it, are culpable.

6th. That the exercise of this right, which is a right original, sovereign, and supreme, and not derived from any other human authority, may be, and must be, effected in such way and manner as the people may for themselves determine.

7th. And more especially is this true in the case of the then subsisting government of Rhode Island, which derived no power from the charter or from the people to alter or amend the frame of government, or to change the basis of representation, or even to propose initiatory measures to that end.

Upon the foregoing hypothesis, then, the following questions arise:

1st. Had the people of Rhode Island, in the 21] month of December, *1841, without the sanction or assent of the Legislature, a right to adopt a State constitution for themselves, that constitution establishing a government, republican in form, within the meaning of the Constitution of the United States?

2d. Was the evidence of the adoption by the people of Rhode Island of such a constitution, offered in the court below by the plaintiff in this cause, competent to prove the fact of the adoption of such constitution?

3d. Upon the issuing of the proclamation of the convention, by which it had been declared duly adopted, namely, on the 13th day of January, 1842, and the acts under it, did not that constitution become the supreme law of the State of Rhode Island?

If these questions are answered in the nega

tive, then the theory of American free governments for the States is unavailable in practice. If they be answered in the affirmative, then the consequences which necessarily follow are

1st. The charter government was, ipso facto, dissolved by the adoption of the people's constitution, and by the organization and proceed. ings of the new government under the same.

2d. Consequently, the Act of March, 1842, "in relation to offences against the sovereign power of the State," and the Act "declaring martial law" passed June 24, 1842, were both void.

3d. The Act of June, 1842, being void, affords no justification of the acts complained of in the plaintiff's declaration.

4th. Those acts, by the common law, amount to trespass, the facts being admitted by the defendants.

It has already been said that Mr. Hallett alone argued the case on behalf of the plaintiff in error, but the reporter is much at a loss how to give even a skeleton of the argument, which lasted for three days, and extended over a great variety of matter. The following points were discussed, and authorities read: 1st. What is a state?

Sidney on Government, pp. 15, 24, 349, 399; Locke on Government, B. 2, ch. 8, secs. 95, 96, etc.; Burgh's Pol. Dis. Vol. I. pp. 3, 4, 6; Vattel, L. N. p. 18; Virginia Convention, 1775; Wilson's Works, Vol. I. pp. 17, 304, 305; Federalist, No. 39, p. 150; 2 Dall. Rep. 419, 463, 464; 3 Dall. Rep. 93, 94; 1 Tuck. Bl. Com. App. p. 10; 1 Story's Com. on Const. p. 193, sec. 208; 1 Elliott's Deb. Gilp. ed. p. 65. 2d. Who are the people?

The early political writers indiscriminately use the words "community," "society," "State," "nation," "body of the community," and "great body of the people," to ex- [*22 press the same idea, and sometimes the words "the governed” are used in the same sense.

Sydney on Government, ch. 1, 2, 3; Locke on Government, B. 2, ch. 8, sec. 95 et seq., ch. 13, etc.; Burgh's Pol. Dis. Vol. I., ch. 2, 3, Vol. III., pp. 275-278; Vattel, L. N. p. 18; Virginia Convention, 1775, pp. 16, 27, 42, 78; Declaration of Amer. Ind. etc.; Trevett v. Weeden, Varnum's Argument in 1787; Wilson's Works, Vol. I., pp. 17, 20, 25, 417, 420, Vol. II., p. 128, Vol. III. p. 291; Federalist, Nos. 1, 7, 14, 21, 22, 39, 40, 63; Virginia Convention, 1788, pp. 46, 57, 58, 64, 65, 67-70, 79, 87, 95, etc.; 2 Dall. Rep. 448, 449, 452, 454, 458, 470472; 3 Dall. Rep. 86, 92-94; 1 Tuck. Bl. Com. Pt. 1, note at p. 89, App. pp. 4, 9, 87; 1 Cranch, Rep. 176; Helvidius, p. 78, by Mr. Madison; Rayner's Life of Jefferson, 377, 378; John Taylor, of Car. pp. 4, 412, 413, 519, 447; Rawle on the Const. pp. 14-17.

He cites Vattel, and uses the word "people" in the same sense Vattel had used the word "State."

4 Wheaton's Reports, p. 404; Story's Com. on the Const. Vol. I. B. 2, secs. 201-204, etc.; Virginia Convention, 1829, 1830; Debates in Congress, Michigan Reg. Deb. Vol. XIII. pt. 1; Everett's Address, Jan. 9, 1836; Burke's Report.

All the American political writers, etc., use the term "people" to express the entire numer

ical aggregate of the community, whether State or national, in contradistinction to the government or Legislature.

Mr. Burke, in his report, cited above, says, that "the (political) people include all free white male persons of the age of twenty-one years, who are citizens of the State, are of sound mind, and have not forfeited their right by some crime against the society of which they are members."

3d. Where resides the ultimate power or Sovereignty:

Sydney on Government, pp. 70, 349, 436; Locke on Government, p. 316; Burgh's Pol. Dis. I. pp. 3, 4, 6, Vol. III. pp. 277, 278, 299, 447; Paine's Rights of Man, p. 185; Roger Williams on Civil Liberty; Virginia Convention of 1775; Dec. of Amer. Ind.; Wash. Farewell Address; Trevett v. Weeden, Barnum's Argument; Wilson's Works, Vol. I. pp. 17, 21, 25, 415, 417, 418, 420, Vol. II. p. 128; Vol. III. pp. 277, 278, 299, 447; Federalist, No. 22, p. 87, No. 39, p. 154, No. 40, p. 158, No. 46, p. 188; Virginia Deb. of 1788, pp. 46, 65, 69, 79, 187, 230, 248, 313; Chisholm v. Georgia, 2 Dall. Rep. 448, Iredell, 454, 457, 458, Wilson, 470472, Jay, 304, Patterson; Vanhorne's case, 3 Dall. Rep. 93, Iredell; Doane's case, 3 Dall. Rep. 93, Iredell; 1 Tuck. Bl. Com. App. pp. 4, 9, 10; 1 Cranch, Rep. 176; Rayner's Life of 23*] Jefferson, pp. 377, 378; John Taylor, of Car. pp. 412, 413, 489, 490; 4 Wheaton's Rep. p. 404, Marshall; Rawle on the Const. p. 17; 1 Story's Com. on the Const. pp. 185, 186, 194, 195, 198-300; Virginia Convention of 1829, 1830; Admission of Michigan, Buchanan, Benton, Strange, Brown, Niles, King, Vanderpoel, Toucey; Everett's Address, p. 4; 4 El liott's Deb. 223; R. L. Declaration of Rights, art. 2 and 3.

4th. The right of the people to establish government.

Sydney, Lock, Burgh, cited ante; Dec. of Amer. Ind.; Wash. Farewell Ad.; Virginia Convention of 1775; Roger Williams; Wilson; The Federalist; Virginia Deb. of 1778; 2 Dall. Rep.; 1 Tuck. Bl. Com. App.; 1 Cranch; Rayner's Life of Jefferson; John Taylor, of Carolina; 4 Wheaton's Reports; Rawle on the Constitution; 1 Story's Com. on Const.; Virginia Convention of 1829, 1830; Admission of Michigan; 2 Elliott's Debates, 65, Pat. Henry.

5th. The mode in which the right may be exercised.

The English authors already cited, although they all assert the right of the people to change their form of government as they please for their own welfare, do not in any instance come nearer to pointing out any specific mode of doing it than by saying that "they may meet when and where they please, and dispose of the sovereignty, or limit the exercise of it."" Sydney on Government, ch. 3, sea. 81, p.

399.

In the Virginia Declaration of June 12, 1776, art. 3, they say it may be done "in such manner as shall be judged most conducive to the common weal."

Declaration of American independence; Wil

1. For the reason, see Madison, 2 Ell. Deb. 95,

and Pinckney, 4 Ell. Deb. 319, that for our system "we cannot find one express example in the ex perience of the world."

son's Works, Vol. I. pp. 17, 21, 418, 419, Vol. III. p. 293; Federalist, No. 21, p. 78, No. 39, p. 154, No. 40, p. 158, No. 43, p. 175; Virginia Convention of 1788, 2 Elliott's Deb. pp. 46, 65, 67; 2 Dall. Rep. p. 448; Iredell, p. 464, Wilson, Jay; 1 Tuck. Bl. Com. part 1, p. 89, note; Appendix, pp. 92-94; Rayner's Life of Jefferson, pp. 377, 378; 4 Wheaton's Rep. p. 404, Marshall; Rawle on the Const. p. 17; 1 Story's Com. on the Const. pp. 198, 300, 305, 306; Virginia Convention of 1829, 1830, p. 195.

The anti-republican doctrine that legislative action or sanction is necessary, as the mode of effecting a change of State government, was broached for the first time, under the United States government, by one senator in the debate in Congress upon the admission of Michigan, December, 1846. See Congres- [*24 sional Globe and Appendix for 1836-1837. It was opposed in the Senate by Mr. Buchanan (pp. 75, 147), Mr. Benton (pp. 78, 79), Mr. Strange (p. 80), Mr. Brown (p. 81), Mr. Niles (pp. 82, 83), Mr. King (p. 85); in the House by Mr. Vanderpoel (p. 131), Mr. Toucey (p. 185). See Kamper v. Hawkins, 1 Virginia Cases, 28, 29, 36, 37, 46, 47, 50, 51, 57, 58, 62, 64, 65, 67-74.

The instances of Tennessee, Michigan, Arkansas, and the recent case of New York. So far as the foregoing authorities are proof of anything, they establish the following posi tions, viz.:

1. That in the United States no definite, uniform mode has ever been established for either instituting or changing a form of State government.

2. That State Legislatures have no power or authority over the subject, and can interfere only by usurpation, any further than, like other individuals, to recommend.

3. That the great body of the people may change their form of government at any time, in any peaceful way, and by any mode of operations that they for themselves determine to be expedient.

4. That even where a subsisting constitution points out a particular mode of change, the people are not bound to follow the mode so pointed out; but may at their pleasure adopt another.

5. That where no constitution exists, and no fundamental law prescribes any mode of amendment, there they must adopt a mode for themselves; and the mode they do adopt, when adopted, ratified, or acquiesced in by a majority of the people, is binding upon all.

6th. When and by what act does a State constitution become the paramount law?

A constitution, being the deliberate expression of the sovereign will of the people, takes effect from the time that will is unequivocally expressed, in the manner provided in and by the instrument itself.

The Constitution of the United States be nine States, in the mode pointed out by the came the supreme law upon its ratification by

Constitution itself.

A similar rule of construction has been adopted by the several States ever since.

Constitution of New York, p. 123 of Amer. Const., Pennsylvania, p. 139; Delaware, p. 157, sec. 8; Kentucky, p. 241; Louisiana, p. 300, sea.

Bec. 9.

This constitution was adopted in convention, 25*] May 11, 1835, ratified by the people on the first Monday of October, a Legislature elected in the same month, held a session in November, organized their judiciary March, 1836, but were not admitted into the Union until January 26, 1837. Validity has been given to her legislative acts passed in March, 1836; therefore her constitution took effect as the supreme law, upon its ratification by the vote of the people, on the first Monday of October, 1835.

That this constitution was so considered, see speech of Mr. Morris, in Gales & Seaton's Cong. App. p. 68; Mr. Benton, Mr. King, Mr. Vanderpoel, Mr. Toucey, Congressional Globe and Appendix, 1836-1837.

See also 1 Story's Com. on Const. Judge Nelson says (1 Virginia Cases, p. 28): "It is confessedly the assent of the people which gives validity to a constitution." Judge Henry, p. 47; 9 Dane's Abr. p. 18, sec. 8, p. 26, sec. 14, p. 22, sec. 11, when the United States Constitution became binding, p. 38, sec. 28, p. 41, sec. 32, p. 44, sec. 35.

These authorities establish the position that constitutions take effect and become binding from the time of their ratification by the vote of the people; which, in the language of Washington, is of itself "an explicit and authentic act of the whole people."

7th. The difference between a change of government and a revolution.

2 Dall. Rep. 419, 464, 308; Wilson's Works, Vol. I., pp. 383, 384; "A change of government has been viewed," etc.; Ibid., pp. 20, 21; Federalist, No. 21, Hamilton, p. 78, No. 39, p. 154, No. 40, p. 158, No. 43, p. 175, Madison; Washington's Farewell Address; the several State constitutions; Helvidius, Madison; Rawle on the Const.; 1 Story's Com. on the Const. p. 300; 1 Cranch, p. 176, Marshall; 9 Dane's Abr. pp. 67, 68, sec. 50.

All these go to establish the constitutional right of changing State forms of government. But the right of revolution, in the common and European acceptation of the term, implying a change by force, is nowhere sanctioned, so far as individual States are concerned, in the Constitution of the United States, if it may be in that of any of the States. On the contrary, as such revolution may involve insurrection and rebellion, as in the cases of Massachusetts and Pennsylvania, the Constitution of the United States, art. 1, sec. 8, secs. 14 and 18, makes express provision to resist all such force with the whole military force of the nation, if required, and the Act of Congress of February 28, 1795, for calling out the militia, was passed to carry that provision into effect. So that, 26*] under the American system of government, a revolution and a mere peaceful change of government are entirely distinct and different things-one being provided for, the other, in effect, guarded against.

8th. Why a revolution to change the form of a State government can never be resorted to within the limits of the United States Constitution, while a State remains in the Union.

form of government, and shall protect each of them against invasion, and, on the application of the Legislature or of the executive (when the Legislature cannot be convened) against domestic violence."

Now, therefore, if revolution includes insurrection and rebellion (all of which are attempts to change a subsisting government by force), then they create that "domestic violence" which is contemplated by the Constitution, and which, by the Act of 1795, they have by law provided for suppressing. How, then, can revolution be resorted to, to change a State government? With respect to the Constitution of the United States the case may, I think, be different.

As to the decision of State courts. The rule applies to cases where the decision of a State court has become a rule of property, and to the construction of local statutes. Green v. Neal, 6 Pet. 291. It must be a fixed and received construction. Shelby v. Guy, 11 Wheat. 361; Gardner v. Collins, 2 Pet. 85.

But the Rhode Island court, in the trial of Governor Dorr for treason, refused to consider the people's constitution, or to decide between that and the charter government. They held (p. 38) that, "if a government had been set up under what is called the people's constitution, and they had appointed judges to give effect to their proceedings, and deriving authority from such a source, such a court might have been addressed upon a question like this; but we are not that court."

The rule of State decision does not apply to this case

1. Because it involved no rule of property nor construction of a statute enacted by a Legislature acknowledged by both parties, but related to the existence of a constitution and government under it.

2. The court never decided which was the valid constitution, but refused to take jurisdiction of that question or to hear it at all. 3. The excitement of the times forms an exception.

4. It was made a political question, and not a judicial construction, as far as it entered into the case.

*Mr. Whipple, for the defendant in [*27 error, said, that the question to be decided was, whether a portion of the voters of a State, either the majority or minority, whenever they choose, assembling in mass meeting without any law or by voting where there is no opportunity of challenging votes, may overthrow the constitution and set up a new one. But he would leave the discussion of general principles to his associate, and confine himself to the more minute facts of the case.

The court below ruled out the evidence offered by the plaintiff in error. Were they right? They offered parol proof of a new constitution, which was said to have been adopted by an out-door proceeding, not recognized by any law. No parallel can be found to this case in any government, the freest that ever existed, where it was attempted by such a summary proceeding to bind all those who had no participation in it.