If the Court be not convinced, then they remain just as they were before. But whether convinced or not, they still remain a court; and the defendant, if heard, has the advantage and the justice of a full hearing, in what he deems the most vital portion of his case. In addition to this, it may be remarked that the question of the effect upon the Court of the People's Constitution, could not be a practical one, even if the Court were now sitting under the Charter Government; for, by the People's Constitution, the Judges were continued in their places until a new election should take place; and the Legislature under this Constitution made no such election; so that, in the case supposed, the Court would be as much the Court of the Constitution as of the Charter.

But beyond all this, taking for granted that the Court, by permitting the defendant's justification to go to the jury, would be permitting its own legal existence to be drawn in question, what right have the Court to regard any real or supposed consequences, or to interpose them as barriers to a full investigation of all the principles and facts of the case? The Court sit to do justice, let what will come of it; and let justice be done, though the heavens fall. What reason is there why a court should not hear all objections, in good faith, not only against the soundness and legality of their decisions, and against their jurisdiction, but against their own qualifications or legal competency or existence as Judges? Some years ago there was a controversy concerning what was called the "Perpetuation Act," relating to the holding over of a part of the Government, till a new election should be effected by the voters. Now suppose this Court not to have held over by operation of law, but by act of such a perpetuated Government, and the question had arisen whether the Court had a valid existence, and its powers were legally continued; would not Your Honors have listened to such a question? If you had entertained any serious doubts as to your legal competency, and the validity of your powers under such an act, would you not have hesitated to proceed, or have postponed your proceed

ing until the difficulty could be removed? Suppose that it should be now suggested that Your Honors are sitting here under an election, in which the prescriptions of the Constitution were not complied with, or without being properly qualified and without commissions, would not such a suggestion deserve and require your attention; and, if well founded, would not your action as a Court be at once arrested? This doctrine that a person accused of treason can not be permitted fully to defend himself, because, if he do, certain consequences may follow, and the jury may take a different view of the constitutional or legal question proposed from that of the Court has no limitations, and may be carried out, in their discretion, so as to work an entire denial of justice, and a defeat of the trial by jury. If one consequence is to be regarded, why not another? A learned Judge has recently observed, that "insanity and the alibi have become the Castor and Pollux of the Criminal Court," so that the guilty have often escaped improperly under these forms of defense. Why not say at once that hereafter those grounds of defense shall be no longer permitted in this Court, because they have been, and may be, employed to the defeat of public justice?

As to the proof of the People's Constitution, and the elec tion of the Governor under it, by parole, which is deemed objectionable, the difficulty will be at once removed, by presenting a copy of this Constitution and a certificate of the election of the defendant as Governor, under the hand of the person who was Secretary of State under said Constitution, in 1842. These, Your Honors, of course will not admit; and being thus deprived of the shortest and easiest mode of reaching the Court and jury, we will proceed with parole proof, if we are permitted, in the way that foreign laws. are sometimes proved; Your Honors not regarding the Constitution and election as any part of the legal record of the State. This difficulty is not of our own making.

It has been already submitted to your consideration, that this is not the same Court that before decided the question

The

now in argument. This Court derives its origin from a different source; and there is a new member on the bench. question before you may be regarded as new.

But it is said that the people of this State did not succeed in 1842. They did not permanently establish their constitution and government. And what of this? Is might the standard of right in a country of republics like this? Does the existence of a right cease with the establishment, possession and enjoyment of it? Does success create rights or confirm them? In despotic countries, where rights are only concessions from the hand of force, this doctrine of contingent rights may meet with some countenance from the state of affairs, and the long suffering patience of the people; but it has no application here. If the defendant had a right to proceed as he did, in the discharge of his appointed duties, defeat did not take it away; and he ought to be permitted to assert it in his defense against the aceusation which here rests upon him. It will not do to say that this is a political question, which has been settled elsewhere. This is not an answer to the present application. One party carried the day, and the other lost it. Is it to be asserted that the party which ought to succeed is always successful, and that which does not succeed is always in the wrong? If not, then, so far as this case is concerned, the question has not been settled; and, if as Your Honor says, it be political, then political facts and arguments are appropriate to it, and more especially as addressed to a political jury.

To say that the People's Constitution was formed without authority from the government then existing, and was consequently null and void, and that therefore it would be of no benefit to the defendant to admit the proof of the facts, which show that this constitution was actually the work of the people is begging the question. We deny the assertion. that the people cannot act for themselves in the construction and change of government, without the permission of that government. The Court cannot take this for granted with our consent. We strenuously assert and stand ready to prove

precisely the contrary, and by a weight of authority and opinion that has never yet been successfully resisted. The defendant does not ask as a favor or indulgence, but claims as the citizen of a free country, the right to show to the Court the entire validity of all the proceedings of the people in the adoption of their constitution; and the same right to exhibit the evidence of their votes and of his own election. There is no conjecture in a proof like this. The people set their hands to the work of the constitution. The prisoner offers their signatures to the jury. To refuse this inquiry of law and this examination of facts. is to cut off the right arm of his defense.

DURFEE, CH. J. We have decided this question. I am astonished that men of high intellect can take such views of it as they have. We cannot admit this testimony. In this stage of the proceedings, we cannot hear the argument to show its admissibility. After verdict we shall be disposed to entertain the question.

Mr. Dorr inquired whether this decision to hear no argument, and to reject the testimony offered, was the decision of the whole Court?

BRAYTON, J., said that it was.

Mr. Dorr. I have sought to conceal nothing in this case, I deny nothing except the falsehoods with which it has been sought to surround it. I should be the last man, I trust, to make any such denial, believing as I did, and as I now do, that I was in the right, and that my opponents were in the wrong. I have accordingly claimed here the right fully to justify myself to the jury, both in law and fact. Your Honors have come to a different conclusion, but not more honestly than I have to the opposite of it. As you refuse to permit me to justify myself, I shall now once more offer the same testimony, in a more general form than when Mr. Harris was called upon the stand, to repel the charge of treasonable intentions. Levying war is not enough. In the language of Chief Justice Marshall, the levying war must be with the intent to commit treason; and treason is not to be

inferred from an assemblage in arms without an examination of all the circumstances and reasons that led to it.

Mr. Turner then made a third offer as follows:

"The defendant offers to prove, by the votes of the people, to be produced and verified, that a large majority of the whole resident, adult, male population of the State, being citizens of the United States, gave their votes for the adoption of the constitution, called the People's Constitution of Rhode Island, in the month of December, 1841; and also to prove that under the said constitution, the defendant was elected Governor of this State, in the month of April, 1842. And this testimony he now offers, to repel the imputation of malicious and treasonable motives and intentions, as charged in the indictment, and urged by the prosecution, in behalf of the State."

The COURT overruled the offer of the testimony, and the defendant excepted as before.

Mr. Turner then proposed to offer to the jury a copy of the People's Constitution, to show that the government provided under it was republican in its form, agreeably to the requirement of the Constitution of the United States.

The offering was overruled by the COURT, as being immaterial, irrelevant and inadmissible. Defendant excepted.

Mr. Turner then offered the Message of Governor Dorr, delivered May 5, 1842, before the General Assembly under the People's Constitution, to explain the motives and objects of the defendant.

Ruled out and exception taken by defendant.

Mr. Turner then claimed of the Court, in behalf of the defendant, the right of defendant and his Counsel to address the jury on all matters of law involved in the case, as their undoubted privilege; inasmuch as the jury, in all capital cases, are the judges both of the law and of the fact, the province of the Court being, in such cases, to lay before the jury their views of the law, and of the jury to judge of them, as they do of the testimony.

DURFEE, C. J. The Court entertain a different opinion.