power here must go to the aid of the existing government?  Look at the law of 28th February, 1795.[2] Its words are, “And in case of an insurrection in any State, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.”  Insurrection against the existing government is, then, the thing to be suppressed.

But the law and the Constitution, the whole system of American institutions, do not contemplate a case in which a resort will be necessary to proceedings aliunde, or outside of the law and the Constitution, for the purpose of amending the frame of government.  They go on the idea that the States are all republican, that they are all representative in their forms, and that these popular governments in each State, the annually created creatures of the people, will give all proper facilities and necessary aids to bring about changes which the people may judge necessary in their constitutions.  They take that ground and act on no other supposition.  They assume that the popular will in all particulars will be accomplished.  And history has proved that the presumption is well founded.

This, may it please your honors, is the view I take of what I have called the American system.  These are the methods of bringing about changes in government.

Now, it is proper to look into this record, and see what the questions are that are presented by it, and consider,—­

1.  Whether the case is one for judicial investigation at all; that is, whether this court can try the matters which the plaintiff has offered to prove in the court below; and,

2.  In the second place, whether many things which he did offer to prove, if they could have been and had been proved, were not acts of criminality, and therefore no justification; and,

3.  Whether all that was offered to be proved would show that, in point of fact, there had been established and put in operation any new constitution, displacing the old charter government of Rhode Island.

The declaration is in trespass.  The writ was issued on the 8th of October, 1842, in which Martin Luther complains that Luther M. Borden and others broke into his house in Warren, Rhode Island, on the 29th of June, 1842, and disturbed his family and committed other illegal acts.

The defendant answers, that large numbers of men were in arms, in Rhode Island, for the purpose of overthrowing the government of the State, and making war upon it; and that, for the preservation of the government and people, martial law had been proclaimed by the Governor, under an act of the legislature, on the 25th of June, 1842.  The plea goes on to aver, that the plaintiff was aiding and abetting this attempt to overthrow the government, and that the defendant was under the military authority of John T. Child, and was ordered by him to arrest the plaintiff; for which purpose he applied at the door of his house, and being refused entrance he forced the door.