have the most effectual, tendency to establish and secure the royal power and dignity.

Are we deficient in loyalty to his majesty? Let our conduct convict, for it will fully convict, the insinuation, that we are, of falsehood. Our loyalty has always appeared in the true form of loyalty--in obeying our sovereign according to law; let those, who would require it in any other form, know, that we call the persons who execute his commands, when contrary to law, disloyal and traitors. Are we enemies to the power of the crown? No, sir; we are its best friends: this friendship prompts us to wish, that the power of the crown may be firmly established on the most solid basis; but we know, that the constitution alone will perpetuate the former, and securely uphold the latter. Are our principles irreverent to majesty? They are quite the reverse: we ascribe to it perfection, almost divine. We say, that the king can do no wrong we say, that to do wrong is the property, not of power, but of weakness. We feel oppression; and will but we know-for our constitution tells usthat oppression can never spring from the throne. We must, therefore, search elsewhere for its source: our infállible guide will direct us to it. Our constitution tells us, that all oppression springs from the ministers of the throne. The attributes of perfection, ascribed to the king, are, neither by the constitution, nor in fact, communicable to his ministers. They may do wrong: they have often done wrong: they have been often punished for doing wrong.

oppose

it;

Here we may discern the true cause of all the impudent clamor and unsupported accusations of the ministers and

1 Rebellion being an opposition, not to persons, but authority, which is founded only in the constitution and laws of the government, those, whoever they be, who by force break through, and by force justify the violation of them, are truly and properly rebels. Puffend. 720, 721, notes.

of their minions, that have been raised and made against the conduct of the Americans. Those ministers and minions are sensible, that the opposition is directed, not against his majesty, but against them: because they have abused his majesty's confidence, brought discredit upon his government, and derogated from his justice. They see the public vengeance collected in dark clouds around them their consciences tell them, that it should be hurled, like a thunderbolt, at their guilty heads. Appalled with guilt and fear, they skulk behind the throne. Is it disrespectful to drag them into public view, and make a distinction between them and his majesty, under whose venerable name they daringly attempt to shelter their crimes? Nothing can more effectually contribute to establish his majesty on the throne, and to secure to him the affections of his people, than this distinction. By it we are taught to consider all the blessings of government as flowing from the throne; and to consider every instance of oppression as proceeding, which in truth is oftenest the case, from the ministers.

If, now, it is true, that all force employed for the purposes so often mentioned, is force unwarranted by any act of parliament; unsupported by any principle of the common law; unauthorized by any commission from the crown-that, instead of being employed for the support of the constitution and his majesty's government, it must be employed for the support of oppression and ministerial tyranny-if all this is true-and I flatter myself it appears to be true-can any one hesitate to say, that to resist such force is lawful: and that both the letter and the spirit of the British constitution justify such resistance?

Resistance, both by the letter and the spirit of the British constitution, may be carried farther, when necessity requires it, than I have carried it. Many examples in the English history might be adduced, and many

authorities of the greatest weight might be brought, to show, that when the king, forgetting his character and his dignity, has stepped forth, and openly avowed and taken a part in such iniquitous conduct as has been described; in such cases, indeed, the distinction above mentioned, wisely made by the constitution for the security of the crown, could not be applied; because the crown had unconstitutionally rendered the application of it impossible. What has been the consequence? The distinction between him and his ministers has been lost: but they have not been raised to his situation: he has sunk to theirs.

NOTE A.1

WHO ARE THE PEOPLE?

Men imagine that their reason governs words, whilst in fact words re-act on the understanding, and this has rendered philosophy and the sciences sophistical and inactive. Hence the great and solemn disputes of learned men often terminate about words and names in regard to which it would be better to proceed more advisedly in the first instances, and to bring such disputes to a regular issue by definition."-BACON, Novum Organum.

In an address read before the Congress on Jurisprudence and Law Reform of the World's Congress Auxiliary, written by David Dudley Field (published in 25 CHICAGO LEGAL NEWS, 438), he asserts that at the time of the Declaration of Independence, "The People" meant the adult white males. He states that our forefathers began by asserting the sovereignty of the people.

It is, he says, under the influence of these great principles that our political society, State and National, has been built.

That such an assertion could pass unchallenged, is sufficient evidence that it was not generally understood to be incorrect. It may be that the assertion is based upon a proposition enunciated by Judge Cooley in the 6th edition, his work upon Constitutional Limitations, p. 40 (it did not appear in the earlier edition), that "as a practical fact, the sovereignty is vested in those persons who are permitted by the Constitution of the State to exercise the elective franchise."

While this expression does not go to the same extent as that of Mr. Field, it is open to criticism. "Permitted to exercise" materially modifies the expression of “ vested,” but the statement is verbally inaccurate.

The case cited by Judge Cooley does not warrant so strong a statement as that suffrage is vested. Vested is the language of right; entrusted is the language of delegation. In that case the court holds that the voters are only entrusted with a delegated power. In matters of this kind words are things. It is im

1 This note was originally published in the Chicago Legal News, Nov. 4, 1893, and is but slightly changed. 566

portant that the germs of error be not allowed to lurk at roots of the Constitution. If one overlooks the fundamental principle of the Constitution he may learn many rules of constitutional law, but he will never understand the theory and science of republican institutions. The mere statement of Mr. Field's proposition leads one to inquire whether such a government is republican and free, or despotic. It has been asserted that the test as to whether a government was free or despotic, is not how the laws are administered, but what powers might legally be exercised by those in whose hands the reins of government are placed. This is not to be determined by the number who exercise power, for if a large class of citizens are, according to the form and theory of the Constitution of a nation, legally vested with complete power over another large class of citizens, what element of despotism is lacking? If such is true of our government, wherein, so far as universal equality before the law, has it any advantage over that of the mother country?

At the time of the Declaration of Independence, every man, woman and child owed allegiance to the king of England, i. e., they were his subjects, and had a right to expect from him in return protection against violence and wrong; but in a constitutional sense, according to Blackstone, there were no people. The Parliament was the body politic. When allegiance was renounced, what was obtained instead? The privilege merely of being governed by an unknown number possessing uncontrolled power, and from whose action there is no appeal? "That worst of tyrants an usurping crowd?" Intelligence has not yet been required as a qualification of membership in the sacred order of electors.

Is any such theory borne out by the situation, assertions, opinions or acts of our ancestors who obtained our independence and established our constitution? Most assuredly, such was not either the theory or political fact, and fortunately, there is no lack of contemporaneous evidence upon the subject. Our political and judicial history furnishes abundant and conclusive authority upon the question.

The ancient land-marks of our forefathers, though somewhat obscured by the (falling and one might say, decaying) leaves of commentators, still exist and are easily discoverable.

In the Constitution of New York, adopted in 1777, is this clause: "This convention therefore, in the name of and by the authority of the good people of this State, doth ordain, determine and declare, that no authority shall, on any pretence whatever, be exercised over the people or members of this State but such as shall be derived from and granted by them. The words are over the people" (collectively) or "members" (individually). Mr. Field should have shown that the free blacks and females were not members of the State.

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