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1 Opening Argument of Mr. Whipple, In the Supreme Court of the United States, in the Case of Martin Luther, against Luther M. Borden, and Others, in Behalf of the Defendants 1842

handle is hein.trials/acce0001 and id is 1 raw text is: OPENING ARGUMENT OF MR. WHIPPLE, In the Supreme Court of the United States, in the case of MAR- TIN LUTHER, against LUTHER M. BORDEN, and others, in be- half of the defendants. This is an action of trespass, for breaking and entering the plaintiff's dwelling house in the town of Warren and State of Rhode Island, in the month of June, 1842. The defendants admit that they broke and entered the plain- tiff's dwelling house on the day stated in the plaintiffs declara- tion, but they state in their Pleas, that they were authorised so to do by the existing governiment of Rhode Island-in fact, that they were obliged so to do. To show this authority on the part of the existing government, and this obligation to obey on their part, the defendants state in their Pleas: 1st.-That at the time of the supposed trespass, there existed in the State of Rhode Island a domestic rebellion, the object of which was to overthrow the existing government by force of arms. 2d.-That Martin Luther, the plaintiff, was one of the insur- gents in arms againiit the State. 3d.-That Martial Law h ad been declared by the General As- .sembly of Rhode Island, acting under the Charter of 1663. 4th.-That John T. Childs was an officer, and the other de- fendants, soldiers in the militia service of the State of Rhode Island. 5th.-That the said defendants received an order from the said John T. Childs to arrest the plaintiff. The plaintiff replied to these Pleas, by simply stating that the defendants acted in their own wrong, and without any such au- thority as is set forth in their Pleas. The plaintiff does not deny that a domestic rebellion existed he does not deny that he was one of the insurgents, nor does he deny that the defendants acted under the government, or what professed to be the government of the State of Rhode Island. What he does deny, is, that the government under which the de- fendants acted, had any authority to give such an order. He contends that the old Charter government, as it is sometimes called, had expired; that the people of Rhode Island had adop- ted a new and written Constitution, and organised a new govern- ment under it, previous to June, 1842,-and that as the old gov-

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