Stephen F. Austin to Junta Instituyente, 01-16-1823

Summary: The nature of government. The Junta has no authority to frame a constitution. Suggests constitutional congress.

The objects of the war which has raged within the limits of this extended Empire, since the ever memorable and glorious cry which was raised in Dolores, in favor of the rights of Man, and the independence of Anahuac, has undoubtedly been the happiness of the Mexican people. Unfortunately, the arbitrary power of Spain, a power founded in its origin in usurpation dessolation and blood, and continued by injustice and oppression, to [by] intrigue and corruption, prolonged the struggle for independence untill the Hero of Iguala devised a plan, which uniting all interests and all parties effected the long desired emancipation in a few months.

All that then remained to complete the happiness of the Mexican people, was the establishment of a system of Government, which would effectually secure to them and their posterity, the rich reward of so many years of toil, so many sacrifices and the ... [A line is lost here.]

Although the Empire has been absolutely independent for two years, this great and paramount object of all their labours remains yet uncompleted. This delay in the organization and consolidation of the Government, if unavoidable is one of the greatest misfortunes that could have befallen the nation; short of the total loss of its independence ; and if it has been produced by intrigue, corruption, force, ambition, or any other means tending to blind the people, or usurp their rights for the purpose of individual agrandisement and the establishment of despotic power; it is a crime which merits the execration of every honest man, and the vengence of the injured and insulted nation. The most pernicious concequences have already resulted from this illtimed procrastination the nation has even approximated to the very brink of ruin, civil war threatens us with all its horrors; it is even proclaimed, and unless speedily checked, may spread like a desolating ... [A line is lost here.] to a state of ruin and Misery, the bare contemplation of which overwhelms every reflecting and philanthropic mind with sorrow.

In this state of things it is the duty of all, and more especially of the Junta Instituyente to avert the impending evils, [if practicable and rescue the nation from the dreadful anarchy which threatens it. The individual interest and safety, as well as the collective happiness and prosperity of the Mexican people imperiously call upon the Junta Instituyente, if they consider themselves to be the representatives of the People, to take that firm and [decisive stand which the high and sacred responsibility of their stations as legislators imposes upon them. If they are not the legal representatives of the People, they can have no legislative powers except provisional ones, in which case the only justification for the exercise of them at all, is the force of circumstances and the necessity of the case. But in either situation they are charged with duties of the most sacred and serviceable nature, duties the violation of which may involve crimes of the deepest die, for it may involve the ruin and dessolation of their country, the loss of its liberty, and the misery and slaughter of its inhabitants.

New Governments are established either [by] force, or by common consent. In the former case the result is despotism, for it must be evident that the only object of employing force in the formation of the Government, after all foreign enemies are expelled, and independence secured, is to establish a particular system in opposition to the wishes of the nation and the will of the People. In the latter case, where the Government is formed by common consent, it must be free, for we cannot suppose that a whole people, when left to their own free will would ens [lave] themselves. Which of these two would be most just or most condusive to the Gel good?

It is a principle founded in natural justice, and natural law, and which therefore originated at the creation as an imprescriptable inheritance given by the great God of truth and justice to man and can only cease when all [subl] unary things shall have been swept from existence and lost in the vast ocean of eternity. " That all Government of right originates "from the People—is founded on consent—and is instituted " for the general good and happiness of the whole"

The people then, and they alone, have the right, and the sole right of electing their form of Government, and forming their Constitution, and any intervention of force or power in opposition to their will, is an unjust usurpation of their rights. Taking this principle for a basis, let the question be asked have the Mexican People chosen their form of Government?—have they formed their Constitution?

The Congress Constituyente, declared that the form of Government should be a Constitutional, limited, hereditary Monarchy. And that Don Agustín de Iturbide should be Emperor of the Empire of Mexico—But it is a principle, universally- recognised, that nothing produced by undue and improper coertion is valid. Supposing therefore this act of the Congress to have been free, Spontanious and uninfluenced by fear or force, the mexican nation have legally chosen their form of Government: and supposing the election of his Majesty Don Agustin 1st to have been equally free and uninfluenced by improper force or power, the election of the Emperor is the legal act of the nation.

The form of Government therefore admitting the above suppositions to be facts has been elected by the People, and the Emperor chosen: but the foundation, the soul of all free political institutions, the Constitution is still wanting. This, the people have not yet made—they have not yet declared how the Monarchy shall be constituted, how the powers of the different branches of Government shall be divided, distributed and limited, and in fact what powers are given up to the Government by the People, and what are reserved. The great work then of making and adopting a Constitution conforming to the system of Government already elected proclaimed and sworn to is yet to be done and the want of this constitution is the great cause of the present evils which afflict the nation.

The Law of nature, of reason, and of truth, is the law of God; and that law declares that " all Government of right originates from the People"—The People therefore have not only a right to elect the form of their Government and chuse their Emperor, but also to prescribe laws to that Emperor and consolidate that form of Government into a system by a Constitution, which is the paramount law of the nation and the foundation of all other laws—But the People collectively cannot assemble and debate and vote on the Constitution, the only legal manner therefore in which it can be decreed and sanctioned, is by the legal Representatives of the People in Congress assembled—

A free Congress of the nation unites all parties and all interests, except those which tend to the distruction of its independence, or the usurpation of its liberties—No real friend of his Country therefore ought to oppose the immediate convocation of a general Congress- Such a measure ought at once to satisfy all parties, and thus suspend the further progress of the civil war, which like the warning thunders of a volcano previous to its irruption, now threatens the nation—It is therefore the duty of the Junta, if they have any authority to use it in calling a General Congress of the nation, and if they are only councellors of the Emperor in the provisional administration of the Government, they ought to advise his Majesty to order a new Congress immediately.

But the Junta are directed by the organic basis decreed by the Emperor at their formation to form a project of a Constitution. If they do so, are the future Congress bound to adopt it whether they approve of it or not? Agreeably to the golden rule herein stated the People alone have the right of forming their Constitution: and will any one say, that the People of this nation created the Junta, or authorised them to form a Constitution for them?

All then that the Junta can legally do is to call a General Congress—The only thing that can unite the conflicting interests of the nation, is a general Congress—The only legal mode of consolidating and firmly establishing the Government, is by a General Congress— The only power that has, or can have legal authority to form the Constitution, is a General Congress—And all that can save the Nation from the horrors of a civil war is a General Congress.

The voice of your Country, therefore, a voice which none but Tyrants disregard, and one which every true patriot considers as sacred as that which spoke in thunder from Mount Sinai, calls upon you for a General Congress. With this sacred appeal souning in your ears, will your consciences permit you to waste away time so precious to the nation, in debating the project of a Constitution which you have no right to sanction, when by so doing you jeopardise the peace of your country and perhaps involve it in Civil war by delaying the Convocation of Congress?

Let the Junta therefore adopt the following propositions in order to shew the nation how far the Government is legally constituted, what rights appertain to the people, and what they have yet to perform

1—That all Government of right originates from the People—is founded in consent—and is instituted for the general good—

2—That the People by their legal representatives in Congress assembled have declared that the Government of the Mexican Nation should be a Constitutional, limited, hereditary Monarchy, which declaration was made freely without the influence of force or fear—

3—That the People by their legal representatives in Congress assembled, did on the 19th of May last elect Don Agustin 1. Emperor of the Mexican Nation, and that said election was freely made without the influence of force or fear

4—That therefore the form of Government of the Mexican Nation is legally adopted and the Emperor legally chosen

5—That the people have not yet formed their Constitution, and they, and they only, have the sole and absolute power of forming it—

6—That as the People cannot all assemble and debate and vote on the Constitution, the only legal mode of doing it is by their representatives, freely chosen and assembled in a General Congress—

7—That said Congress cannot execute the duties intrusted to them by the People, without the secure and inviolable guarantee of liberty of speech, and personal security—

8—That to insure the observance of said guarantee all the troops within the city where Congress sits ought to be under their direction, and commanded by a General of their nominating—

9—That the junta have no authority to form a Constitution, and that it is therefore inexpedient to spend time debating a project of a Constitution which they have no authority to sanction—

10—That the immediate convocation of Congress is necessary to save the Nation from a civil war—

These principles being established let the Junta pass a decree immediately for the new Convocation, and send it to the Emperor for his approbation—

S. F. A— [Rubric]

City of Mexico

January 16. 1823