Luther v. Borden

48 U.S. (7 How.) 1 (1849)

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Nature of the Case

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Facts

The charter of the Colony of Rhode Island and Providence Plantations was adopted and accepted on the 24th day of November, A.D. 1663. The charter became and was the fundamental law or rule of government. The delegates of the Colony assented to and signed in behalf of said Colony the Declaration of the Independence of the United States of America. The General Assembly approved the Declaration of Independence. The Colony became a party to the articles of confederation and perpetual union between the States. The Colony then ratified the Constitution of the United States and ever since has been, one of the said United States. The charter of the Colony has been recognized and guaranteed by the said United States as the true, lawful, and republican constitution and form of government of said State. They never framed a new constitution. Rhode Island did not, like the other States, adopt a new constitution, but continued the form of government established by the charter of Charles the Second in 1663. Many of the citizens became dissatisfied with the charter government, and particularly with the restriction upon the right of suffrage. The people were so upset they voted on their own for a convention to form a new constitution to be submitted to the people for their adoption or rejection. This convention was not authorized by any law of the existing government. It was elected at voluntary meetings, and by those citizens only who favored this plan of reform. The convention framed a constitution. The constitution would be submitted to the decision of the people, -- permitting everyone to vote on that question who was an American citizen, twenty-one years old, and who had a permanent residence or home in the State, and directing the votes to be returned to the convention. Upon the return of the votes, the convention declared that the constitution was adopted and ratified by a majority of the people of the State, and was the paramount law and constitution of Rhode Island. New elections were held and officials who were elected assembled and began the new constitutional government. The charter government disapproved and asserted its authority. Dorr, who had been elected governor under the new constitution, prepared to assert the authority of that government by force assembling men in various parts of the state to enforce the new government. The charter government thereupon passed an act declaring the State under martial law, and at the same time proceeded to call out the militia, to repel the threatened attack and to subdue those who were engaged in it. D under proper command of the military of the state was tasked with arresting P. If they were not allowed into P's house, D was ordered to force his way doing as little damage as possible. P was arrested and sued Ds for trespass. P claimed he was the legitimate representative of the new government. P claimed that Ds had no authority as the charter government had been replaced. With no legal authority to break into his house P claimed his action for trespass was valid against Ds. The Circuit Court instructed the jury that the charter government and laws under which Ds acted were, at the time the trespass is alleged to have been committed, in full force and effect as the form of government and paramount law of the State, and constituted a justification of the acts of the Ds as set forth in their pleas. P appealed.