The case of Luther v. Borden,8 decided by the Supreme Court in 1845, arose out of Dorr's Rebellion. Borden, acting under authority of the old government of Rhode Island, had broken into the house of Luther, who was at the time engaged in an attempt to establish the new government provided for by the Constitution that had been adopted in the popular, extra-constitutional manner spoken of above. Upon being sued in trespass by Luther, Borden justified himself by the plea that he was acting under the authority of the legal government of the State. Luther, upon his side, denied the de jure character of that government, and, therefore, its legal competence to empower Borden to exercise the authority he had exercised.

Upon behalf of Luther it was argued "that, by the fundamental principle 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 Independence 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 right to reform, alter, abolish the same, in such a manner as shall be judged most conducive to the public weal."9

8 7 How. 1; 12 L. ed. 581.

9 In support of this position, the following propositions were urged:

1. " That the sovereignty of the people is supreme, and may act in forming government without the assent of the existing government.

2. That the people are the sole judges of the form of government best calculated to promote their safety and happiness.

In behalf of Borden, the defendant in error, Daniel Webster, who was one of the counsel, argued that, granting that the people are the source of political power, the American principle is that they can exercise this power only through their constituted representatives, and through the votes of properly qualified electors. "The right to choose a representative," he declared, "is every man's portion of sovereign power. .Suffrage is a delegation of political power to some individual. Hence the right must be guarded and protected against force or fraud. That is one principle. Another is, that the qualification which entitles a man to vote must be prescribed by previous laws, directing how it is to be exercised and also that the results shall be certified to some central power so that the vote may tell. We know no other principle. If you go beyond these, you go wide of the American track. . . . Our American mode of government does not draw any power from tumultuous assemblages."

The question as to which of the two governments was at that time the legal government of the State thus seemed squarely presented to the court. That tribunal, however, did not feel itself obliged to pass upon the point, holding that the power to determine such a matter had been given by the Constitution to Congress, and by that body had been handed over, to the extent at least of determining when the Federal Government should interfere, to the President. In the case at bar the President had recognized the legality of the old government and the propriety of this decision the court declared it could not consider.10

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

4. 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.

5. That if such a 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 these who oppose its peaceful exercise, and not those who support it, are culpable.

6. 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 a way and manner as the people may for themselves determine.

7. 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."

'"After the President has acted, and has called out the militia," continued the court, "is a circuit court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people X If it could. then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President is endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging, if the judicial is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offenses and crimes the acts which it before recognized, and was hound to recognize, as lawful." As to the point that a discretionary power thus placed in the hands of the President might be abused, the court said: "All power may be abused if placed in unworthy hands. But it would be difficult to point out any other hands in which this power would be more safe, and at the same time equally effectual. . . . At all events, it is conferred upon him by the Constitution and laws of the United States, and must therefore be respected, and enforced in its judicial tribunals."

10" Under this article of the Constitution," said the court, speaking through Taney, C. J., "it rests with Congress to decide what government is the established one in the State. For as the United States guarantees to each State a republican government, Congress must necessarily decide what government is established in the State before it can be determined whether it is republican or not. And when the Senators and Representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. . . . So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfil this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. But Congress thought otherwise. ... By this act (Feb. 28, 1795) the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. . . . And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by act of Congress."

As regards the point that had been raised that by the declaration of martial law and the use of military force, the old government of Rhode Island had ceased to be a republican one, the court said: "Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the state authorities. And, unquestionably, a State may use its military authority to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government,"11