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If he (Mr. Botts) understood the origin of a bill rights, it was this. When the colonies, which now compose a portion of the United States of America, felt themselves aggrieved by the arbitrary action of the British Government, they started questions that were then new in the world, with regard to the great rights of mankind. They promulgated these important truths in the form of a declara. tion of rights, embodying the principles which they avowed. The object of the Constitution was to sustain those rights. Their design was to lay down a great, broad principle of human government. The first, or general declaration, is called a bill of rights; and the second, embracing a special system of government, is known by the term Constitution. It is the true meaning of these two terms that this Convention should recognise. Perhaps it is altogether unnecessary that we should refer to these general principles of government here. Do not forget them. Cherish them as you would your heart's blood; but why append them to this Con. stitution ? If it is the wish of the House, there is no objection to promulgating them still further, and giving them the sanction of this Convention, but let the bill of rights be kept to its legitimate object. The proposed bill is objectionable. It embraces legislative enactments. The crime of duelling, for instance, is taken up, and, instead of a general declaration that duelling is an evil and ought prohibited, leaving it to the people to prohibit it in such manner as they may deem proper, we undertake to prescribe the mode for them. They do not require us to perform this duty. We are sent here to prepare for them a system by which they can enact laws for themselves. No civilized people pretend to pass laws without at least making them run the gauntlet of two Houses, differently consti. tuted—often requiring them to pass through the final revision of a single indi. vidual, called a President or Governor. When a Convention assumes to pass laws and impose them upon the people, it constitutes itself an oligarchy. If you take notice of one species of crime, can you neglect another? Do you not usurp the power of designating crime? Where will be the end ? If you undertake to prohibit duelling, will you have no reference to gambling? Or, if you entertain these two minor evils, will you omit the great crime of murder ? You go, then, through all the evils of society. If you entertain crime, will you not entertain the subject of usury ? Gentlemen may refer to Constitutions without number, adopted in the United States, with these very features engrafted on them, but that is no reason why we should adopt the faults of others. We should rather profit by their experience. By the adoption of this resolution, instructing the committee to confine itself to the legitimate object for which it was appointed, some hopes may be entertained of progressing wiih the business of the Convention ; but if we undertake to enact laws on all subjects, it will be impossible to get through in less than four months.
Mr. SHERWOOD called for the special order of the day; and, after debate, it was decided by the Chair that the special order was the first business before the Con. vention.
Mr. Borts moved a reference of his resolution to the Committee of the Whole. The motion was decided in the negative.
COMMITTEE OF THE WHOLE.
On motion of Mr. Gwin, the Convention resolved itself into Committee of the Whole, Mr. Lippett in the chair, and took up the special order of the day, being the “Declaration of Rights,” yesterday reported by the Select Committee appointed to report " a plan or part of a plan of a State Constitution."
Mr. SHANNON moved the following as the first and second sections of the bill of rights:
Sec. 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.
Sec. 2. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people ; and they have the right at all times, to alter or reform the same whenever the public good may require it.
Mr. Norton stated, on bebalf of the Committee, that in making this report, they did not intend that it should comprise the whole bill of rights. The Commit. tee was forced, by the action of the House, to come in without proper time for deliberation and reflection, and report something. It was the understanding of every member that they were to have the privilege of introducing other sections. The first and second sections, introduced by the gentleman from Sacramento, (Mr. Shannon,) he believed the committee had agreed should be incorporated in the bill of rights. It was the proper place for them. The declaration of the sovereignty of the people, emanates from the foundation of our Republic. It has been adhered to ever since, and, he trusted, would be adhered to in all time to come.
Mr. HALLECK suggested whether it would not be expedient, as the bill of rights introduced by the Committee was imperfect, and new sections must come in, to proceed to act upon those reported. Such additional sections as were deemed ne. cessary, might then be moved. It would afterwards remain to determine upon the relative order in which they should appear.
Mr. Joxes proposed, as an amendment, to strike out the first section of the bill now before the Committee, and insert the first section of the Constitution of lowa.
The Chair observed that an amendment to any part, except what was directly before the House, was not in order.
The question recurring on the first section, proposed by Mr. Shannon,
Mr. Borts was in favor of the amendment suggested by Mr. Jones, He con. sidered the first section superfluous. It merely secures to the citizens of the State certain privileges, of which this Convention has no power to deprive them. It is only by their own act that they can be legally dispossessed of those privileges.
Mr. Semple rose barely to say, that he was opposed to striking out this article. He considered it an essential principle to be incorporated in a bill of rights. It takes precedence of all others, and places those that follow it in a higher
point of view. He trusted it would be retained.
After some discussion on the order of amendments, the question was taken on the first section proposed by Mr. Shannon, and it was adopted; the question then being on the second section,
Mr. Ord moved an amendment, which he stated was a literal copy of the second section of the bill of rights of Virginia. There was some difference between the phraseology of this section and that of the section before the Committee. It was in the following words :
2. That all power is vested in, and consequently derived from the people ; that magistrates are their trustees and servants, and at all times amenable to them.
Mr. SHANNON had carefully examined the Constitutions of the different States, Virginia included, and had been unable to find a more terse, comprehensive, and appropriate section than that which he had proposed. He did not perceive what Mr. Ord's amendment added to it, or in what respect it was superior.
Mr. Ord explained the difference.
Mr. Borts ihought Iowa had the advantage in this case. She said all in one clause that was contained in the two clauses proposed. He would vole against the amendment of his colleague (Mr. Ord.)
The question then being on Mr. Ord's amendment, it was rejected.
The question was then taken on the second section proposed by Mr. Shannon, and it was adopted. The next question was on the first section of the report of the committee, viz :
3. No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.
Mr. Borts moved to strike out the word "member," and insert “ citizen." He considered the whole section superfluous, but desired that it shouid appear in the most acceptable form.
Mr. Norton suggested the word "inhabitant," which amendment was accepted by. Mr. Botts.
Mr. HALLECK observed that the clause was properly worded. The term “inhabitant” would apply to a certain class of people who were not entitled to the rights of citizens, but who were entitled to protection as inhabitants.
Mr. JONES objected to any such interpretation. The reading of the section is, * no member of this State shall be disfranchised.” That is to say, no citizen having certain rights, such as the right of voting, shall be deprived of them. You cannot deprive an Indian of a right to vote, when he has no such right. It applies to the full rights of a citizen. A citizen cannot be partly a citizen. This section requires to be analyzed. "No member," &c. Now a member of a State must have the rights and privileges of a citizen thereof; because if he has not, the article gives them to him. An Indian cannot be deprived of the rights secured to a white man without due process of law. The word disfranchised is applied to citizens in contra-distinction to foreigners. A man who is not franchised cannot be disfranchised; a foreigner in the United States, who is not a citizen, cannot be disfranchised. The provision is superfluous, and he (Mr. Jones) would not support it.
Mr. SHERWOOD supposed the word “member” referred not only to Indians, negroes, and Africans, but to citizens; and that the word disfranchised referred par. ticularly to citizens. “No member," either a citizen or a foreigner, Indian, negro, or African, “shall be disfranchised.” A citizen being the only member who who could be disfranchised, is therefore referred to by that word. A citizen of the State of New York, by the commission of certain crimes specified, in the statute books, is disfranchised by law. This is intended to secure to him all the rights to which he is entitled, unless by his own act he is disfranchised.
Mr. HASTINGS. There is another view of this question. Whether it is designed or not, the adoption of this section of the bill of rights would secure to certain clas. ses, Indians and Africans, (if Africans are ever introduced here,) precisely the same rights that we ourselves enjoy. There is no clause in relation to the introduction of slaves or any other class of men. If you provide that no member of this State shall be deprived of the rights and immunities of a citizen, it is to be presumed that such member enjoys those privileges and immunities. If you declare that no man shall be decapitated for a certain crime, it may reasonably be presumed that he has a head. It must be clear, therefore, that that section proposed to be amended, was not designed by the mover to produce an effect of this kind. The word “ inhabitant" would not be proper. Indians are inhabitants, but they do not enjoy those privileges in any portion of the United States; they are dis. franchised. Yet we declare here, that they shall not be disfranchised without due process of law.
Mr. Borts thought the objections of the gentleman who had just taken his seat, to the word "inhabitant,” were based upon an erroneous impression of the word “disfranchised.” Every inhabitant of this State is franchised. It is not the elective franchise that is meant. The term embraces the general rights of a freeman. All classes of men possess rights and privileges. An Indian has rightshe has a right to his life. There can be no objection to the word " inhabitant." If the gentleman is correct, and the inhabitant has no rights, of course he cannot be deprived of them. He (Mr. Botts) would vote against the whole section, be. cause he considered it entirely superfluous.
Mr. Ord could not agree with his colleague (Mr. Botts) as to the meaning of the word " disfranchise.” The popular meaning of the word "franchise” is the right of suffrage. It is derived from the French, and it would be well to be sure of the precise meaning. Words are things. If this is true, we are giving to all inhabitants, whites, Indians, blacks, and mulattoes, the right of suffrage. The Constitution of New York has the word "member.” Member and inhabitant mean different things. A member of a State, is a citizen. If gentlemen had left the word citizen, it would be more appropriate, and he would be disposed to vote for the amendment.
Mr. JONES said that, in France the word franchise is used to express a political right. In the Constitution of Louisiana it is used in the same sense. It refers to the right of suffrage.
Mr. Ord quoted from Webster's dictionary: Franchise, s. Exemption from any onerous duty; privilege ; immunity; right granted; a district to which a privilege or exemption belongs ; v. To enfranchise-to make free. It is a word derived from the French, and means simply the right of suffrage, and nothing more. This amendment, which it is proposed to substitute for the first article of the re. port of the Committee, is, therefore, out of place here. It relates to certain rights which come properly under the provisions of the legislative department. It should be left to the Committee to be inserted in that part of the Constitution. He moved to lay it on the table.
Mr. Dent differed from his colleague (Mr. Ord) on one point. If the word “disfranchised” has reference to the right of suffrage and nothing more, what is the meaning of the words following or deprived of any of the rights or privi. leges secured to the citizens thereof.” It appears from this, that the word must have reference to the whole community, and not to a particular class entitled to special privileges; for this class is afterwards defined by the term citizen.
Mr. Botrs rose to rescue a good old English word from the hands of the enemy. In the days of the Anglo-Saxons, a man who had been a serf, was made frank or free. The word has reference to freedom. It may be well enough to declare, that we shall not deprive the inhabitants of this State of their franchise or free. dom, except by the law of the land ; but there does not appear to be any necessity for making such a declaration, inasmuch as they cannot be deprived of such rights in any other way. The gentleman from San Joaquin (Mr. Jones) refers to the word as used in Louisiana. Does he mean to say, that because a man fights a duel in that State, he is deprived of the privilege of voting, and no other privi. lege? Is that the only punishment? The meaning must extend beyond the right of suffrage ; for the man who commits crime is not only deprived of that right, but of many others.
Mr. Gwin had some doubts as to the propriety of using this word. He thought the shortest way of settling the question was to reject the amendment.
Mr. Borts suggested that if a gentleman was obliged to take a dose of physic, he had a right to make it as palatable as possible. He intended to vote against the whole section. To save time, however, he would withdraw his amendment.
Mr. Gwin moved to reject the first section.
Mr. HallECK. This is a very excellent provision. It is drawn up to cover certain rights. The object is this. There are two members of a communityone has several rights, another but a single right. Neither of these members shall be deprived of the one right or of the several rights, unless by the law of the land or the judgment of his peers. The person possessing but a single right cannot deprived of it except in the same way with the individual who has several rights.
Mr. Gwin could not see how a man could be disfranchised of any of his rights except by the law of the land or the judgment of his peers.
Mr. WOZENCRAFT would vote for Mr. Botts' amendment, and against the whole. He thought it was the shortest way of accomplishing the object.
Mr. Borts stated that he had withdrawn his amendment.
Mr. Price could see no necessity for telling people in a bill of rights that their rights are secured to them by law. They understand that very weli
. Mr. Gwix asked if there was any Constitution, of all the States, containing anything about franchise, except that of New York.
ORD had looked over the whole thirty Constitutions, and had found none.
Mr. Norton said it was taken verbatim from the Constitution of New York.
Mr. McCARVER thought it a matter of no importance where it came from. He was opposed to its adoption. We designate in this Constitution who are entitled to the right of franchise. Having given that right, no one under our system of government can be deprived of it except by law.
Mr. SHANNON was of opinion that the section defined itself.—“No member shall be disfranchised or deprived of any of the rights or privileges secured to any citizen.” This does not refer to the single right of voting or the elective franchise. It includes all the rights and privileges secured to citizens. There can be no understanding here as to the previous existence of those rights. It is for the very purpose of creating a fundamental law of the land to determine them, that this Convention is now assembled.
Mr. Norton had but a word to say in regard to this section. It is admitted that there is nothing improper in it. Objection is made to it on the ground that all American citizens know they possess these rights and privileges, without a formal statement of the fact. It is necessary, however, that not only citizens should be protected in the enjoyment of their rights, but all who are inhabitants of the State. Besides a large proportion of the citizens of California have had no opportunity heretofore of knowing so much about the rights and privileges of American citizens, and the protection given to all classes under our laws, as they are now about to have. It is necessary that they should see upon the face of this Constitution that their rights are to be secured to them. It will be a guarantee that they will not be deprived of such rights except by the law of the land or the judgment of their peers. There are foreigners in this country who are entitled to the protection of our laws. That of itself is a consideration of great importance. If there is no harm in this provision, and it can do the least possible good, it should be permitted to remain in the Constitution.
Mr. Gwin objected to it, not because it was improper, but because everything inserted in this Constitution should be proper, and not negative. Louisiana had the same descriptive population unacquainted with our laws. He would also refer to Arkansas, Missouri
, and Florida. Is there anything of the same kind in their Constitutions ? Because it happens to be in one Constitution, it is not necessary to put it in ours. It is a precedent that should not be established.
Mr. SEMPLE. Suppose we pass this provision in the bill of rights, will it not cramp our action hereafter? Other sections must come up defining who are entitled to certain rights. Here you declare that no citizen shall be deprived of any of his rights or privileges unless by due process of law. Particular classes must necessarily be deprived of the right of suffrage. You proceed in another sec. tion to deprive them of that right. This is not due process of law. If such a provision is necessary at all, it cannot properly be introduced in this part of the Constitution. It must be incorporated in that portion which defines the classes entitled to the right of suffrage. He (Mr. Semple) would therefore vote for the rejection, with the view of considering the proposition in its appropriate place.
Mr. DIMMICK was in favor of having this in the bill of rights, and for this reason. That nothing should be introduced into the Constitution or the laws of this country, which would disfranchise any person, who, under a particular law, has the right of citizenship. He had heard gentlemen say that under the Mexican law, there is a class who have the right of elective franchise, and he knew they were in favor of prohibiting them from the enjoyment of this right. He considered the bill of rights the proper place for this section. In another part of the Constitution it would be easy to determine who were entitled to the right of suffrage, without reference to this.
Mr. GWIN wished to know what class under the Constitution of Mexico did the gentleman refer to. Was it the Indian population ?
Mr. DIMMICK stated that the Indians could not vote ; but that there was a por. tion of the population having Indian blood in their veins who were entitled to that privilege.