Benjamin Lundy on The War in Texas 3

SONS OF DEWITT COLONY TEXAS
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I will leave it to the decision of every candid reader, whether the attempt to organize a State government, without the consent of the national Congress, and after that body had refused its sanction to the measure, can be fairly construed into a "zealous endeavor to procure the acceptance" of the instrument! I have before stated, particularly, the course he pursued in this case, and need not repeat it. Proceeding with the enumeration of their "grievances," the colonists charge the government, in their Declaration of Independence as follows:

"It has failed and refused to secure and refused to secure on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty and property of the citizens."

We do not learn that the general government ever officially declared, either by the Constitution or otherwise, that the "trial by jury" would be introduced in their code of laws. Yet the Mexican statesmen have evinced a disposition to establish their institutions upon the most liberal basis that the intelligence of the people and the state of things generally would permit. One of the articles of the Federal Constitution is in these words:

160. The judicial power of each state shall be exercised by the tribunals that the Constitution may establish or designate, and all cases, civil or criminal, which appertain to the cognizance of those tribunals, shall be terminated in them to final judgment and execution.

The Spanish colonists had never been familiar with that excellent provision in the English code, the trial by jury: and as a substitute for it, the Mexican Federal Government adopted a system of arbitration, which it was supposed would better comport with the habits and understandings of its citizens, at the period of the organization of the Republic. Regular Courts were established for the transaction of all business connected with the judiciary and the following articles of the Constitution guarantee the privilege of arbitration as aforesaid.

155. No suit can be instituted, neither in civil nor criminal cases, for injuries, without [the plaintiff] being able to prove, having legally attempted the means of conciliation.

156. None can be deprived of the right of terminating his differences by means of arbitrators appointed by each party, whatever may be the situation of the controversv.

It was understood that the States were at liberty to establish the trial by jury when, in the opinion of the Legislatures the state of society should warrant it. And by the Constitution of Coahuila & Texas, the principle was recognized. The two following articles of that instrument relate particularly to arbitration and trial by jury:

178. Every inhabitant of the state can terminate his differences, be the state of though case what it may, by the medium of arbitrators, or in any other extra-judicial manner; the agreement in this particular shall be religiously observed, and the sentence of the arbitrators executed if the parties who have made the compromise do not reserve the right of appeal."

192. One of the principal subjects for the attention of Congress, [State Legislature,] shall be to establish in criminal cases, the Trial by Jury, extending it gradually, and even adopting it in civil cases, in proportion as the advantages of this precious institution, may be practically developed.

In order to carry out the principle alluded to in the last article here quoted, the Legislature passed an act in the year 1834, (I believe), instituting the trial by jury, and appointed a gentleman of legal acquirements, formerly a citizen of the United States, one of the judges to carry it into effect. A series of essays, written in the Spanish language, were also published in the newspaper at the seat of the State Government about that time, elucidating the nature and advantages of the trial by jury. Thus we perceive that measures were taken---probably as soon as the state of things would admit---to incorporate this institution in the code of laws. And, in the alterations proposed for the Constitution of the Republic, no mention has been made relative to this particular subject. The reader will, therefore, judge with what truth the assertion has been made, that the government "refused" to establish the trial by jury.

One of their grievances is declared to be, "that the government has failed to establish any public system of education."&c." Nations are not ---born in a day---neither can their institutions, when newly modeled, be matured instantaneously. "Public instruction" was considered a measure of paramount importance in defining the powers and duties of the government, and was enumerated with others in the constitutional provisions, but various causes prevented the adoption of a systematic plan of operations. The unsettled state of the country at particular times, and the lawless acts of the colonists themselves, were the principal causes that retarded the establishment of public schools and other seminaries of learning, as the government proposed, and fully intended to have done.

They further charge the Federal Government with having acted tyrannically, as follows:

"It has suffered the military commandant stationed among us to exercise arbitrary acts of oppression and tyranny, thus trampling upon the most sacred rights of the citizens, and rendering the military superior to the civil power."

In what respect these" arbitrary acts" have been exercised, is not specified. But, as I have before stated, they themselves refused to carry into effect the laws, or render obedience to the civil authority, in numerous instances; and, of course, the Executive was obliged to resort to the use of military force, to cause the due observance of legislative enactments.

Again, they say:

"It has dissolved by force of arms the State Congress of Coahuila & Texas, and obliged our representatives to fly for their lives from the eat of government thus depriving us of the fundamental political right of representation."

But they do not tell us that the State government had previously nullified the acts of the general Congress, in the sale of immense tracts of land, contrary to the provisions of the colonization laws. They keep out of view the fact, that it assumed the privilege of selling four hundred leagues, (1,771,200 English acres,) even to foreigners, in direct violation of the Federal statutes---and that one hundred leagues or more were actually thus disposed of to the New York land speculators. Even the provisional government" of Texas, established on the return of Austin from the Mexican Capital, declared these proceedings of the state government illegal and void. Instead of being necessitated , "to fly for their lives," the members of the Legislature fled (it may rather be presumed) to avoid impeachment, or imprisonment and legal punishment for their misdeeds.

They also assert, that the government "has demanded the surrender of a number of [their] citizens, and ordered military detachments to secure and carry them I into the interior for trial, in contempt of the civil authority, and in defiance of the laws and the constitution."

We do not learn, however, that measures of this nature had been adopted, until it had been sufficiently ascertained that the "civil authority" was prostrated, and the laws were wholly disregarded, in that section of the republic, so far as they chose to consider them inconsistent with their views and pretensions.

The following charge, too, is gravely preferred:

"It has made piratical attacks upon our commerce, by commissioning foreign desperadoes, and authorizing them to seize our vessels, and convey the property of our citizens to far distant ports for confiscation."

The Mexican government is yet in its infancy, and has a very small marine. Of course, it has but few experienced naval commanders. Foreigners, in whom the government can repose confidence, are therefore occasionally appointed to the command of its armed vessels. I have before stated that the colonists were extensively engaged in contraband trade, the introduction of slaves, &c. The customhouse regulations were completely "nullified" by them, when the Mexican troops were expelled in 1832. I believe that not a single revenue establishment was kept up, except in those interior towns where the native population was numerous. When the government vessels did succeed in capturing those engaged in smuggling, &c., it was necessary to take them to ports guarded by troops, to prevent their being retaken by the smugglers and lawless "desperadoes" among the colonists themselves, in places where they could effect it with impunity. Possibly, some abuses may have existed under this regulation: but had the colonists consented to aid in the execution of the revenue laws in the Texas ports, such abuses (if there even were any) might have been obviated.

Another apparently serious "grievance" is stated thus:

"It [the general government] denies us the right of worshipping the Almighty according to the dictates of our consciences---by the support of a national religion, calculated to promote the temporal interests of its human functionaries, rather than the glory of the true and living God."

The institution of an established religion is a grand defect in the organization of the Mexican Republic. But this is nothing more than what may be said of the English, and many other European, as well as American governments. The colonists well knew that none but the established religion was ever tolerated, constitutionally, by the Mexican government, when they took the oath of allegiance to it. Many of them formally embraced the predominant faith, were baptized, renewed their marriage contracts, &c. according to the rites of the Catholic Church. But a disposition very generally prevailed among the Mexican people, to tolerate the public exercise of all other professions of the Christian religion; and both Methodists and Presbyterians held their meetings, openly, in the colonies, without the least degree of molestation from the government or individuals. Even laws were enacted, by Mexicans, providing for their protection in the enjoyment of their religious privileges. Had they shown a disposition to unite with the native inhabitants in supporting the laws of the country, there can be no doubt that these privileges would eventually have been guarantied them by permanent constitutional regulations.

I omit the notice of sundry items in the list of grievances, set forth by the framers of their "Declaration of Independence' " as aforesaid. Many of them are merely incidental to the state of war, in which they have designedly involved themselves. But before I conclude my remarks, I must ask the attention of the reader to one more important specification, which they dwell on with particular emphasis, viz.---that "the whole nature of their government has been forcibly changed, without their consent," (meaning without the consent of the Mexican people at large); and that their "rulers" have established "a consolidated central military despotism, in which every interest is disregarded but that of we army and the priesthood," &c.

This sweeping, wholesale assumption is embodied in their preamble; but in the sequel, they admit that--- the Mexican people have acquiesced in" what they are pleased to call "the destruction of their liberty, and the substitution therefor of a military government." A few extracts from the Decree of the general Congress, relating to the proposed changes in the Constitution of the Republic, will throw some light upon this part of our subject, which is so completely involved in gloom by the "Declaration" of these revolutionists.

The articles of the Decree, aforesaid, from the third to the ninth, read thus:

3. The system of government of the nation is a republican, popular, representative one.

4. The exercise of the supreme national power will continue to be divided into Legislative, Executive and Judicial, which cannot be united in any case nor for any pretext. There shall be established, moreover, means sufficient to prevent the three powers from transcending the limits of their attributes.

5. The exercise of the legislative power shall reside in a Congress of the representatives of the nation, divided into two Chambers, one of Deputies, and the other of Senators, who shall be elected Periodically by the people. The constitutional law will determine the qualifications which the electors and the elected must possess; the time, manner, and form of their elections; the period of the elect; and every thing relative to the essential organization of these two parts of the aforementioned power, and to the circle of their prerogatives.

6. The exercise of the Executive power shall reside in a President, to be elected indirectly and periodically by the people, a Mexican by birth, whose other circumstances, as well as those of his election, his term of office, his powers and mode of exercise of them, will be determined by the constitutional law.

7. The exercise of the Judicial power shall reside in a Supreme Court of Justice, and in the tribunals and judges, which the constitutional law shall establish: their prerogatives, their number, duration, radication responsibility, and mode of election, the said law will establish.

8. The national territory will be divided into departments, upon the basis of population and other conducive circumstances: a constitutional law will detail their number, extent, and subdivisions.

9. For the government of the Departments, there shall be Governors and departmental juntas; these shall be chosen by the people, in the mode and in the number, which the law shall establish; and those shall be appointed periodically, by the supreme executive power, on the proposal of the said junta.

These are the principle leading features of the Constitution proposed for the Mexican Republic, under its new organization. It would seem to bear very little resemblance to a mere system of "military despotism," as the Texas colonial insurrectionists assert! The probability is, that the people will possess as much liberty, be equally as well protected in the enjoyment of their inherent, inalienable rights and privileges; and also witness more stability in their political institutions, and tranquillity among themselves, under such a form of government, than that of a more complicated system.

When it was proposed to organize a Federal Republican government in Mexico, after the brief reign of the Emperor Iturbide, delegates were elected by the people to meet in convention for the purpose. This body was denominated a "Constituent Congress," and was invested with authority to frame a Constitution, in much the same way as did the "Convention" which framed that of the United States of the North. But in providing for future amendments or alterations of the Constitution, which was subsequently adopted by the nation, the calling of such conventions was dispensed with; and the necessary power was delegated to the general Congress, to be exercised, should the state of the country require it, under certain formal rules of proceeding.

One of the Articles of the Constitution, granting this authority to the National Congress, is in these words:

"In order to reform or amend this Constitution or the Constitutive Act, shall be observed, besides the rules prescribed in the foregoing articles, all the requisites provided for the formation of laws, excepting the right to make observations granted to the President, in article 10-6."

The Congress was thus constituted a "Convention," for this especial purpose, entirely independent of the Executive. The "right to make observations granted to the President," in the formation of general laws, was the same in principle as that of the Veto power, given to the President of this Republic. In the case before us, it was withheld. It will therefore appear, that the Mexican Congress was duly authorized to "reform or amend" the national Constitution, when the state of the country should require it. Whether the actual state of things did call for it, or not, is a pertinent subject for investigation, before we join the revolutionists in their condemnation of the measure. That body acted upon its constitutional responsibility, and it may be presumed independently of all authority but that of the people, to whom alone the members were amenable for the abuse of their power.

I have previously stated that the principles of "Nullification," as professed by many in this country, had taken deep root, and were often practically exemplified, in the Mexican Confederacy. The Texas colonists, individually, and some of the States, in their "sovereign" capacity, acted them out thoroughly; and not only were the tranquillity and prosperity of the nation thus endangered, but even the stability of its free institutions, and the permanency of the government, were rendered wholly insecure, and liable to eventual destruction. The more intelligent and reflecting among the Mexican people, were fully sensible of this. They found, by an experience of years, that the complicated system of government, adopted by their Anglo-American neighbors, was not sufficiently understood by the mass of their citizens, and consequently not adapted to their state and condition.

In considering the proposal for a change in the Constitution, the municipality of Toluca expressed the following views and sentiments:

Feeling, therefore, the pressing and imperious necessity of terminating and hereafter preventing the abuses which have frequently been made of power by the authorities of the different States using it formerly and at present in several of them to the prejudice of the people, with whose happiness (the prime object of all social institutions) they had been entrusted, but which they sacrificed to their own private interests or to disgraceful passions: convinced, also, that it is indispensably necessary to adopt a mode of government more consistent with the establishment of an administration so economical as to repair the poverty, decay, and ruin, to which the profession and complexions of the present system has reduced the country, and so strong as to extricate it from opprobrious the and oppressive bankruptcy; to supply our internal wants, and restore and conso1idate our impaired credit; opposed to also to tyrannical and absolute power, whether exercised by one or more persons, or by the unbiased multitude; by tired of enduring sometimes heavy and barbarous oppression, sometimes dreadful and bloody anarchy ; desirous at length to see perpetually and irrevocably die secured the peaceable enjoyment of a of moderate national and constitutional the freedom, and of the other social rights which have hitherto been merely nominal, and basely violated." &e.

With this understanding of their state and condition, and this desire to improve it, in order to secure the peace and happiness of themselves and the successive generations of their posterity, the change in the constitution was proposed, and sanctioned voluntarily by an immense majority of the Mexican people. It was finally "acquiesced in" by them unanimously, with the exception of a small fractional part of the inhabitants of one of the states---and that fractional part composed almost entirely of foreigners, many of whom had not acquired citizenship in the Republic. This is the ostensible pretext, (though not the real one,) now urged by the Texas insurrectionists, for waging war against the Mexican government. They did not pretend to have sufficient cause of complaint, to adopt measures for their entire independence, so long as the hope existed that on the Federal form of government could be continued. It is evident, therefore, that they were not oppressed. But they deny to the great mass of the Mexican people the right to abrogate such institutions as their own experience teaches them are unsuited to their condition ; unless, indeed' they will give up a large portion of their country, and leave a great number of their brethren to the exclusive control and unapproved government of foreigners. Texas never did exercise the authority of an independent sovereignty. Neither did the colonists ever, exclusively, possess the attributes of a community, clothed with any political power at whatever. When they settled in the country, they took up their abode among native inhabitants, promised obedience to their laws, and were ever legally subject to all the regulations of their government. They never possessed a shadow of legal title to a foot of the soil, there than what a part of them acquired the munificence and liberality of that people and government, and what they obtained by purchase from them. What authority then can they claim, to dictate to the Mexican nation the formula for its political institutions---or demand relinquishment of its right to possess and govern the country in which they have thus been permitted to settle themselves? It was an acknowledged axiom that the founders of this Republic, that whenever any form of government fails to secure to its citizens generally the possession of their inalienable privileges, the "pursuit of happiness," &c. "it is the right of the people to alter or abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such in, as to them shall seem most likely effect their safety and happiness."

Yet they never promulgated the doctrine, that a small minority in a community could exercise the right to prevent the majority from carrying this principle to effect. To elucidate the subject more fully, let us suppose a case, which would be strictly analogous to the one before us. At the close of the American revolution, and previous to the organization of our present form of government, a part the Province of Pennsylvania was settled by a considerable number of Germans. They had migrated from the monarchical principalities of Europe, or least from countries whose political situations were different in their principles and organic structure from ours. We will suppose they did not approve democratic republican form of government which our fathers established under present Constitution. They composed a small part of the population of the province. They were settled among native inhabitants, (or there were a large number of natives in the same part with themselves) whose ancestors had opened farms and built up villages long before these foreigners had asked or obtained permission to fix their residence there. They had declared allegiance to the government under the first confederation; they promised obedience to the laws of the regulations which should in future be enacted by the legal authorities; and they were kindly treated, and in a few instances advanced to stations of honor, trust and profit. But although the native inhabitants in the province outnumbered them, as more than three or four to one, we will assume that they refused their sanction to the government under the federal organization of this Union. The natives were almost unanimous in giving their assent; all, except these foreigners, approved or finally "acquiesced" in the proposed change. Now, let us suppose, that in this state of things, these Germans had declared for the old confederation, taken up arms to resist the authority of the general Congress, called upon their brethren in Europe to aid them in their rebellion, and eventually declared tile independence of Lancaster, Berks, and as many other continuous Counties as they might eventually be able to conquer: nay, suppose they had expressed the intention in their "Declaration," to make themselves masters of the whole State of Pennsylvania, part of Virginia and of Ohio, and nearly all the Territory of Michigan, while they were still dependent upon the Germans in Europe for men, money, and other means to accomplish their object! What, I ask, would the people of the United States have said and done? What would their brethren, "their own countrymen" in Europe, consider their duty in such a case? What judgment would the nations of the civilized world have pronounced upon their daring "usurpation" of power---their ambitious, yet impotent efforts---their total disregard of justice, or their ignorance of fundamental principles of human government? I need not say what the impartial verdict would have been.

Tell me not, that the comparison here fails in the application to our subject. It is strictly correct in every essential particular. If there is any variance in the similitude, the Germans of Pennsylvania would have been more justified than the Texas colonists in raising the standard of revolt, had they objected to had they objected to the change in the form of government upon the principle above stated. Many of the former settled in the country long before the native inhabitants threw off shackles of foreign domination, and helped to fight the battles of national liberty. But the latter (with the exception of a very few) introduced themselves after the independence of the nation had been secured by the establishment of a new government. Those who are acquainted with the history of Texas colonization, well know that I have fairly stated facts and circumstances; and it will be found, in the end, that my inferences are just and my conclusions undeniable.

I have stated that a vast combination entered into, (though not formally organized) having in view the re-establishment of slavery in the Texas country, &c. I might rest the assertion on the evidence already adduced in proof of this; but in order to illustrate it more clearly, ask the reader's attention to some facts and observations connected to the subject. This design was openly manifested a time after the settlement of the "Missouri Question," by which it decided that slavery should never be extended to any portion of the territory of the United States, above the line of 36 degrees and 30 minutes of north latitude. When the treaty, defining the western boundary of Louisiana, was ratified by our government, many of our citizens were dissatisfied, because the Texas Country was not included within its limits. To some of these the question of slavery, in that region, did not then occur; but soon after the colonization commenced under Austin, it became a subject of general conversation and newspaper remark, in our Southern states. All the writers for the papers, period, contemplated the annexation of the territory to that of the United States. Among the first who publicly advocated the measure, particularly in particularly in reference to the extension of the system of slavery, were the writers of two or more series of essays, originally published at St. Louis, in Missouri, over the signatures of "Americanus," and "La Salle." [By a reference to the Speech of John Quincy Adams, some extracts from which have heretofore been given, it will be perceived, that our government actually claimed the Texas country, and other parts of the territory adjoining, as far as the Rio Bravo del Norte, when Louisiana was ceded to the U. States; and it will also be found, by a reference to the same Speech, that this claim could not be sustained, by diplomatic effort, and was formally abandoned. Mr. Adams so forcibly depictures the grasping designs of our slaveholding, land-speculating gentry, that his statements have attracted the attention of thousands in this country, and also in Mexico. His Speech has been translated into the Spanish language, and published in a pamphlet at the Mexican Capital---a copy of which we have received]

These essays were attributed to the pen of the Hon. T. H. Benton, now a Senator in the Congress of the United States. To give the reader a correct idea of their drift, and the manner in which the doctrines they inculcated were received in different parts of the Union, I submit a few extracts from sundry publications, issued soon after they made their appearance. It may be proper, however, to premise, that our government (then completely under the influence of the slave-holding interest) was endeavoring to obtain a cession of the territory in question, and that it was at the period of the last invasion of Mexico, by the armies of Spain.

The first quotation which I shall make is from the Edgefield Carolinian, a newspaper said to be then under the control of the present Governor M'Duffie, of South Carolina:

The acquisition of Texas, relinquished by the government of the United States to the magnanimous Ferdinand VII by the Florida treaty of 1819, is now a subject of much interest in the western states. This valuable territory has now devolved on the republic of Mexico, and from the condition of that country, suffering under invasion and civil war, and with scanty finances, it is supposed that the retrocession might be obtained for a reasonable equivalent. Great confidence is expressed that the administration wilt embrace the present favorable occasion of regaining an extensive and fertile region of country within the natural limits of the United States. Some imposing essays originally published in the St. Louis Beacon, with the signature of 'Americanus,' and attributed to Col. Benton, of the Senate, explaining the circumstances of the treaty of 1819, and displaying the advantages of the retrocession, have operated upon the public mind in the west with electrical force and rapidity. The writer produces strong circumstantial proof that the surrender of Texas resulted from the subserviency of our negotiator to Spain, in her contest with Mexico, together with the powerful subsiding motive of hostility to the southern and western sections of our own country.

This large fragment of the Mississippi valley, affording sufficient territory for four or five slave-holding states, was unceremoniously sacrificed with scarcely a pretext of a demand for it on the part of Spain. The time of the negotiation was during the heat of the debate on the Missouri Question---the place was Washington, whither the negotiation had been unnecessarily removed, while it was proceeding prosperously at Madrid, and where the restrictionists were then assembled in all their strength, and the negotiator was Mr. Adams, the friend and associate of the most thorough---going among thorough-going restrictionists. 'Americanus,' exposes the evils to the United States of this surrender under twelve distinct heads. Two of them of particular interest to this section of the country, are that it brings a non-slave---holding empire in juxtaposition with the slaveholding southwest, and diminishes the outlet for the Indians, inhabiting the States of Georgia, Alabama, Mississippi, and Tennessee.

A Charleston paper also then observed:

"It is not improbable that he [President Jackson] is now examining the propriety and practicability of a retrocession of the vast territory of Texas, an enterprise loudly demanded by the welfare of the west, and which could not fail to exercise an important and favorable in upon the future destinies of the south thereby increasing the votes of the slaveholding states in the United States senate."

The Louisiana papers entered warmly into the discussion of the question, about the same time. One of them openly asserted that Gen. Houston had then gone to the Texas country, for the purpose of revolutionizing it, and observed: ---"We may expect, shortly, to hear of his raising his flag."

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