of a Legislature, also purporting to be chosen by the people, under the same Constitution. If Mr. Dorr so acted, as we know he did, and as has been again proved here, then we ask to show why he acted and by what authority he acted; and to discuss that authority. We propose to show by most abundant authorities as a foundation for what the people did in their sovereign capacity, that they are by the theory of our institutions, and in fact, the ultimate sovereign power of the State, responsible to no higher authority, except that of their Creator, for the manner in which they have used this sovereign power for their own good, and for that of the State, of which they are the judges and which judgment no other tribunal can call in question. If we cannot go into this proof, what becomes of the full, fair and impartial trial, to which the defendant is of common right entitled? Without the liberty to investigate this vital and momentous question, which involves the liberty of our State and country, this trial degenerates into a merely formal process, a ceremony before conviction; and he is to be deprived of his civil rights and subjected to the extreme infliction of the law, without a hearing, and without an opportunity to justify himself before the jury; who are thus to decide his case without hearing the whole of it, and without the due consideration of all the points and all the arguments, which is necessary to the conscientious and satisfactory discharge of the solemn and momentous duty which has been imposed upon them. And further, this is not the same court that acted upon this question on a former occasion, at the trial of Colonel Cooley in Providence. The Court was then acting under the Charter Government, which has been done away with. This Court sits under a Constitution from which it derives its power. It is different in name, and in the number of its Judges. One of the Judges on the bench has never heard any discussion of the subjects under consideration in his judicial capacity. Under all these circumstances, regarding the entire novelty of this case, both here and in other States, and the careful deliberation to which, in all its

important aspects and bearings, as affecting the liberty and rights of the citizens of the State and country, it is so peculiarly entitled, have we not a strong claim upon the Court to be heard fully and dispassionately and to the whole extent which the investigation may require upon this the main, vital question of the case. We are prepared to show most conclusively upon principle and authority that the people had a perfect right to reorganize their government as they might see fit, and that in the exercise of this right they did in fact so proceed, and did adopt a constitution, under which the defendant was duly elected, and exercised his appropriate power and performed his specified duties according to the oath of office which was administered to him.

STAPLES, J. The admission of this testimony would be permitting the prisoner to show that we are not a court. The authority of this Court is derived from the Constitution of the State; and that constitution itself was formed, according to legal proceedings, originating with the Government under the Charter, which has now ceased to exist. If that was no legal government, as the prisoner proposes to show, then the present is no constitution, having no rightful origin, and we as Judges have no powers under it. Can we permit such a proceeding as this-to have our own existence drawn in question? The acts set up by the prisoner in his justification were revolutionary in their character, and success was necessary to give them effect. In this event the Judges chosen would have recognized the source which created them, and would have treated the acts of the Government as valid. The prisoner asks us to take notice of an organization which not only did not exist rightfully, but did not exist at all.

Mr. Dorr. The defendant in this case claims the right to inquire and show who are the people of this state, what they had a right to do, and what they did, as the basis of justification of his course and conduct in the recent political affairs of this State. He proposes to show that the people in a political sense are the adult male population, including

qualified voters, and those who are not qualified, the men, who do not look for their origin to the State but to their Creator, and who compose the great mass of the community, bearing its burdens, contributing to its support, the authors of its prosperity and the defenders of its rights. In the next place, it will appear, if there be any virtue in the solemn declarations of popular rights, in the Constitutions of the States, in the decisions of courts, in the opinions and arguments of the most eminent jurists and statesmen, and of the greatest and best men who have adorned our historythat the people, as thus defined, are the ultimate, uncontrolled sovereign power, in whose hands is vested, not by grant or transmission, but by the hand of God, the right, the ability, the competency to provide for their own political safety and happiness, by devising and creating such forms of government as in their several communities they shall deem best and most expedient, and by altering, amending, abolishing and renewing the same, at such times, and in such modes as to them shall seem proper and necessary; of the propriety and necessity of all which proceedings they are the sole and exclusive judges. It will also appear, if the defendant be allowed to make out his case, that in a recent exigency, the people of this State so defined, and so empowered, did see fit to put in exercise this original, ultimate sovereign power, and did form and adopt a written Republican Constitution for the government of the State, under which a government was duly elected and qualified, and among the members of which the defendant accepted and exercised the office of the Chief Magistrate. To prove the existence and adoption of this constitution the votes of the people are here, and we are ready to present them to the jury. The people also are not far off, and may be called upon to authenticate their own acts, if they be drawn in question.

Your Honors say that this testimony cannot be admitted. Why not? It will unsettle the foundations of the Court! Is there any justice in this objection? The Court will remain just where it is until changed by competent authority; and

its jurisdiction will remain the same. This objection would have seemed to carry more weight under a state of things that now no longer exists. When the Court sat under the Charter Government, it might have been said that to have that government impugned, and to admit testimony to show that it was set aside and superseded would be virtually drawing in question the existence of the Court. But this Court does not sit under the Charter Government; and it can now look back with equanimity upon a past state of things, and can, for the purpose of justice, inquire what rights were then gained and lost, and upon what principles the actors in the affairs of that period are to be justified or condemned, without questioning their own existence under the present Constitution; which they are bound to regard as a fact, without either admitting or denying other facts present or past. The constitution under which they act has been carried into effect. A government is in operation under it. A judiciary has been elected under it. And by what possible act of the Court or jury can this constitution be changed, or that part relating to the judiciary be abolished? It is not the province of courts and juries to make or unmake constitutions. That is the work of the people. If after examining the votes and the proofs of his election, and weighing the authorities, the jury should come to the conclusion that the defendant is not guilty, what conceivable effect can this opinion have upon the stability of the Court? Another jury may be of the opposite opinion. Does this place the Court back again where they were before and save their authority? The opinion of the jury expends itself in the particular case on trial. It cannot extend beyond it. It convicts or acquits no one else. It is very difficult to comprehend the force of this objection. Why should not a jury be permitted to investigate a question of political rights as well as a question relating to person or property? We wish to ask the jury whether, upon American principles, and upon a survey of all the facts, the defendant is guilty; if they should say not, they look at the facts and law of this case, and not an inch beyond it. They affirm

and deny nothing respecting the failure of the Government under the People's Constitution. They say simply that what the defendant did he had a right to do at the time. What became of his rights, or those of the people; why and how the Government was overthrown; whether another constitution was rightfully or wrongfully set up, and whether this Court are to continue any longer in existence, are all matters with which the verdict has nothing to do.

The present Constitution is a fact which is taken for granted on all hands. It exists and is made effectual by a government operating under it. No other constitution has now any operation; and there is no other government in actual competition. But is this state of facts to decide a question of right? Because the constitution and government under it have been set aside by force, and because through the fault or misfortune of its supporters and by external interference the plan of reform in this State failed of success, is the opposite forcible success the criterion of all our rights? It may be true that the people have been defeated, or have defeated themselves, and have acquiesced, or are disposed to acquiesce in a new order of things, and yet it may be also true that they were in the right; and that those who attempted to serve them in 1842 were in the right. And this is what we now desire the opportunity to prove to a jury of the country.

The Court have taken an oath to support the Constitution under which they act; and they cannot escape from it while they continue to act, and until they are relieved by a competent authority. In what respect then can they be affected by any argument to show that the old Charter Government was two years ago rightfully superseded by that under the People's Constitution? If the Court be convinced by this argument, still they are held by the obligation to the Constitution which they have assumed; and which they have assumed without qualification, or any reference whatever to its origin, or the question whether the Charter Government was valid or not at the time this Constitution was formed.