7 How. 1, 12 L.Ed. 581 ( 1849)
In 1841-42 Rhode Island was the scene of civil war. In this case, the plaintiff Luther alleged that the defendant had committed trespass in breaking into his house. Borden defended his action by showing that as a member of the state militia he was attempting to carry out lawful orders, one of which required the arrest of insurrectionists. The defendant had received a jury verdict in his favor in the trial court. Luther sought review by a writ of error.
MR. CHIEF JUSTICE TANEY delivered the opinion of the court. . . .
The evidence shows that the defendants, in breaking into the plaintiff's house and endeavoring to arrest him . . . acted under the authority of the government which was established in Rhode Island at the time of the Declaration of Independence, and which is usually called the charter government. . . .
For some years previous to the disturbances of which we are now speaking, many of the citizens became dissatisfied with the charter government, and particularly with the restriction upon the right of suffrage. Memorials were addressed to the legislature upon this subject, urging the justice and necessity of a more liberal and extended rule. But they failed to produce the desired effect. And thereupon meetings were held and associations formed by those who were in favor of a more extended right of suffrage, which finally resulted in the election of a convention to form a new constitution to be submitted to the people for their adoption or rejection. . . . The persons chosen as above mentioned came together and framed a constitution, by which the right of suffrage was extended to every male citizen of twenty-one years of age, who had resided in the State for one year, and in the town in which he offered to vote for six months, next preceding the election. The convention also prescribed the manner in which this constitution should be submitted to the decision of the people, -- permitting every one 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. And it communicated this decision to the governor under the charter government, for the purpose of being laid before the legislature, and directed elections to be held for a governor, members of the legislature, and other officers under the new constitution. These elections accordingly took place, and the governor, lieutenantgovernor, secretary of state, and senators and representatives thus appointed assembled at the city of Providence on May 3d, 1842, and immediately pro-