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Texas was erected into a state by the act of Mexico, originally illegitimate, but made legal by the subsequent acknowledgment of Mexican independence by Spain, the mother country, and she became an independent state by the revolution which subverted the Mexican union or federal government. All our governments may, then, plead a legal, in distinction from a popular origin.

Against us, some may allege the American revolution, the declaration of independence, and the prevalent theories and speculations of American statesmen and politicians. The theories and speculations of many of our statesmen and politicians assert the popular origin of government, we grant; but these theories and speculations are precisely what we are controverting, and their authors cannot assert them as American, on the authority of our institutions, unless necessary to explain and justify their existence. The existence of these institutions does not require them for their explanation or justification, as we have shown, in showing that they are explicable and justifiable on legal principles.

The declaration of independence, in the preamble, asserts the popular origin of government, it is true; but that document is of no legal force or value, forms no part of the public law of either the states or the Union. The act of the congress which drew it up, declaring the colonies absolved from their allegiance to the crown of Great Britain, has entered into the modifications institutions have received; but the principles of government they asserted, and the reasonings by which they justified it, enter for nothing. Moreover, the congress which drew up the document had received from the states whose agent they were no authority to promulgate a theory of government, or a political code, and in doing so exceeded their powers. Consequently the political doctrines they published are to be treated simply as the private opinion or speculation of the individual delegates. Furthermore, the assertion of the popular origin of government was a mere obiter dictum. The essential issue between the colonies and Great Britain was, not whether the people have or have not the right to institute government for themselves, but whether the crown of Great Britain had or had not committed illegal and unconstitutional acts, and if it had, whether it had forfeited its rights over the colonies. The colonies decided that it had, that the king had proved himself a tyrant, and having so


proved himself, they were absolved--by his act, not by theirs—from their allegiance. The real assumption of the colonies was, not the right of the people to originate government, but that the tyranny of the prince absolves the subject. If it had been otherwise, there would have been no necessity for attempting, as they do in the document in question, by a recital of his acts, to prove that George III. was a tyrant.

What is called the American revolution, properly speaking, was no revolution at all, and no man, in order to maintain the legitimacy of our institutions, is obliged to assert the right of revolution, and therefore the popular origin of government; because it was not the act of the people as population, out of or antecedent to the state, but of the people acting in subjection to the colonial governments,—the constituted authorities; because all our institutions originally or by legal derivation date from beyond it, and not one of them can be said to have originated in it; because the authority of the mother country was not resisted, till it had forfeited its rights, and ceased to be a legal authority; and because, whatever illegality there may have been in the declaration and war of independence, the stain was wiped off, and the whole legitimated, by the subsequent acknowledgment of the independence of the United States by Great Britain. A just appreciation of what we improperly call the American revolution would show that in it the American people were far from intending to declare themselves revolutionists on principle. The whole controversy which preceded the struggle for independence proves that they held themselves bound to obey legitimate authority, and that they did not resist the British government till they had convinced themselves-rightly or wrongly is nothing to our present purpose—that it had ceased to be legitimate, and by its own acts absolved them from their allegiance. But in resisting the crown of Great Britain, they did not resist their own governments; at least, never asserted their right to subvert them, which they must have done in order to have asserted the sacred right of insurrection as it is called, and the strictly popular origin of government.

That there is much confused thinking on this subject among our countrymen at present, and that men with fanciful theories and lawless passions, for which they wished to obtain free scope, have seized upon the American revolution and tortured it entirely out of its original shape, we do not deny. That there were at the time individuals—perhaps prominent individuals—affected by the mischievous theories of their times, and carried away by the Utopian dreams of liberty, equality, the perfectibility of human nature, and the realization of a paradise on earth, then so common, and the bitter fruits of which France and all Europe were soon to reap, and that they sought, in season and out of season, to introduce their insane imaginings, and to make it appear to all the world that they had the sanction of the American people, and that individuals of this description, of whom the author of Common Sense, subsequently, of the Age of Reason, was an associate and a sample, were able to direct and color too many of the proceedings of the time, is but too true; but instead of regarding what they said and did as the rule, we should, as true Americans, regard it as exceptional, to be forgotten, not continued, and exaggerated. The less we have of Jean Jacques Rousseau and his school, Thomas Paine and his protectors and followers, and the more we have of the strong old Anglo-Saxon sense, and old Anglo-Saxon loyalty, the better. Massachusetts was foremost in the struggle for independence, and it, perhaps, is some proof that the patriots did not intend to be revolutionists, that she has always been foremost among the states in contending for the supremacy of the law,—though she may not have always maintained it, or been as faithful as we could wish to her principles.

Our readers, of course, will understand that in denying the popular origin of the American governments, we do not deny, or wish to deny, their popular administration. We merely assert the legal order against the revolutionary order, and maintain, that, notwithstanding the popular forms of our government, the broad popular basis of their administration, the state is as sovereign with us as it is elsewhere, and that loyalty to the state is as much a virtue here, and made as obligatory upon the people by our institutions, as it is under any other form of government. We recognize all the freedom in the people, as the state acting according to law, that the most zealous radical among us contends for; but in the people, regarded as population, in their capacity, not of sovereigns, but of subjects, no other freedom than the law grants and guaranties to them. In the ordinary routine of government, in all its ordinary functions, there is no perceptible difference in the practical working or results of our governments, whether we suppose their origin to be legal or to be popular. But there is an immense practical difference, when it comes to the interpretation of their powers, and the allegiance of the subject. If the theory of their popular origin is adopted, they can be assumed to have no powers not granted in the constitution, and the obedience of the subject can never be lawfully enforced. Nay, they have no right of self-preservation; and the people, without reference to law, may abolish them at will, and set up any government or no government in their place, as they please.

Mr. Dorr's movement in Rhode Island, sincere and philanthropic on his part, and undertaken, we have reason to believe, in a pure, disinterested spirit, shows clearly the danger of the theory we denounce. He adopted the theory of the popular origin of government, and held 'that an instrument drawn up and proposed by a body of men assembled without authority of law, if sanctioned by the votes of a majority of the people, would be the fundamental law of the state, and might be lawfully enforced as such by sword and bayonet against the regularly constituted authorities. He reasoned, it is true, fallaciously; for he was obliged to assume the legality of the existing government in order to determine who were the people of Rhode Island, which was necessary to enable him to determine how many votes he must have in order to have a majority; and when he had assumed the legality of that government, he had conceded his obligation to obey it, and therefore denied to himself all right to resist it, at least so long as it continued in the legal discharge of its legal functions ; that is, unless it ceased, by its own act, to be legitimate. But, waiving this consideration, his conclusion was logical, if the popular origin of government was conceded, as it was, for the most part, by his opponents. He certainly had the advantage in the argument of the chief justice of Rhode Island, and of the learned president of Brown University. Yet there was no sober, thinking man, who reflected on his movement, that did not see that it was wholly subversive of all legitimate rule, of the essential principle of government itself. It is unquestionably true, that the legal people, legally convened, have the right to alter or amend the constitution, and equally true, that the new or amended constitution in most cases, though not in all, will not go lawfully into operation unless sanctioned by a majority of the voters voting on it; but not because the constitution derives its authority from the people antecedent to government, but because the law so ordains. The law could, if the sovereign so willed, dispense with the popular vote, and also with the convention ; nay, deny the right altogether, under any circumstances, by any methods whatever, to alter the fundamental law; and experience will yet prove that the facilities provided by law for altering or amending the constitution are incompatible with the safety and stability of our political institutions, if indeed it has not done so already.

We have dwelt at length on the legal origin of our state governments, in opposition to the popular fallacy that they derive from the people as population, because we wish to present our institutions in their true character, and guard, as far as possible, against the false and dangerous theories afloat concerning them. The danger with us is not likely to come from the side of law; but it will come through the corrupting theories of the enemies of all legal order. We have an abundance of politicians,—demagogues, more properly,—but, unhappily, a great dearth of statesmen, and no good school of politics. The ambition of our politicians is, not to serve the country, consolidate and perpetuate our institutions, and secure the practical enjoyment of the blessings they promise, but to rise to place and power; and only that which best enables them easily and speedily to rise are they very likely to study. As to rise one must secure the votes of the electors, as these are with us a numerous body, the easiest and speediest way is to make constant appeals to the popular element, to flatter the people, to exalt their majesty, and exaggerate their sovereignty, their wisdomn, intelligence, and virtue. Hence the tendency is to undervalue and neglect law, and to prize and consult only popularity. We have seen, during the last twenty years, this tendency growing stronger and stronger, till the bulk of our fledgling politicians have become hardly able to recognize any real distinction between the convention and the caucus, the state and the mob, republicanism and ochlocracy. The man who contends for law and order, by a singular misnomer, is termed an Algerine, and he who declaims lustily for the people, sneers at all legal distinctions and legal forms as dry and barren technicalities, unworthy a freeman, is regarded as magnanimous and noble, eloquent and profound, wise and sagacious, the true friend of his country, the man of his times, worthy of universal honor, and the highest offices in the gift of a free people. What

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