stitution for the protection of minorities and the well-being of the mass-majorities can protect themselves. All measures not expressly prohibited in the Constitution, are fair subjects of legislative action. He was opposed to the amendment on these grounds.

Mr. BOTTS wished to know if the gentleman from Sonoma (Mr. Semple) meant to deny the right of the people to maintain their own power? If such a doctrine was maintained on this floor, it should be recorded on the journal. But he (Mr. Botts) thought he knew that gentleman too well in private life, to suppose that up. on calm consideration, he would oppose, by his vote, the principle embodied in the last amendment. The gentleman maintains that all power is in the hands of the people, and if they have not parted with it, it is there still. No, sir; all power is in the hands of the people, whether they have delegated it to others or not. The government is subservient to the Constitution, and the ministers of that government are the servants of the people. They have no power except what they derive from the people. All the power committed to their hands is delegated to them through the Constitution. If it does not come through the Constitution, it does not come all. The Constitution is the message of the people to their ser vants, and what they do not grant in that way, they do not grant at all.

Mr. McCARVER thought it would be very easy to make a constitution here that would take away one man's property and give it to another. The bill of rights declares what powers the people have, and the Constitution of the State consists of restrictions, not of delegated powers. The difference between the Federal Constitution and that of a State, is, that the people of the States in whom all power is inherent, have delegated a certain portion of their State sovereignty to the Ge. neral Government. The Constitution of the United States, therefore, consists of expressed delegated powers. The Constitution of a State is a constituiion of restrictions. By accepting it, the people agree not to exercise the powers therein. expressly prohibited. It is a constitution of restrictions that we should form here. It is not questioned that the people have a right to pass such laws as they please; but the powers not enumerated here, remain in the hands of the people and their agents. He (Mr. McCarver) could see no necessity for the amendment. The bill of rights, already adopted, declares that all power is inherent in the people, and this covers the whole subject.

Mr. GWIN said if he understood the gentleman from Sonoma, (Mr. Semple,) the doctrine broached by him, that the people in their legislative capacity have a right to violate the Constitution, was such as he could not sanction. He would like to see any man go back to his constituents after recording his vote in favor of such a monstrous doctrine.

Mr. SEMPLE claimed to make a few additional remarks. Although he had as high a regard for the will of his constituents as any gentleman on this floor, he wished it distinctly understood that he contended for the doctrine that the people have a right to do anything which is not a violation of the Constitution; and so long as he could record his vote against any declaration to the contrary, he would do so. Whenever he was refused that liberty, he would resign his seat and tell the people he could serve them no longer. He held that whenever the State of California is admitted as a State, her right to legislate for herself is beyond the reach of any other power; that it is beyond the reach of Congress; that Congress is infe rior to the State Legislature, because the Legislature is the direct emanation of the people; that Congress is limited in its powers, while the Legislature is no further limited than by the desire of the people. He would glory in recording his vote upon the principle that the Legislature of California, when formed, is the superior power, and not to be dictated to by any other power than that of the people who constituted it. The difference between the Constitution of the United States and that of a State is exemplified in the very article under discussion. The Fede ral Constitution is a limited Government, granted by certain sovereignties-that is to say by the sovereign people in their sovereign capacity. The State Legis

lature, under the specified restrictions imposed upon it by the people themselves, is a direct emanation from the people, and is annually or biennially responsible to them at the ballot-box. Here is where the powers of the State Government are limited. This Convention is not called upon to tell the people what they shall do, but what they shall not do. By the adoption of the Constitution, formed by their delegates, impcsing certain restrictions upon them, they make it their act. We are sent here to tell them that because they are a majority they are not to infringe upon great general rights and great general principles. What says your bill of rights? It says, in the first place, that the people are the sovereigns. It then goes on to specify certain inalienable rights, and to provide that those rights shall not be infringed upon. The people agree, by adopting the Constitution, that so long as they are members of the community they will not infringe on those special rights; but they reserve the control over all others not restricted by the Constitution. He (Mr. Semple) was always opposed to the exercise of any power by Congress which is not expressly delegated to it by the Constitution of the United States. No member of this body went further than he did for a strict construction of the Constitution. He went for a strict construction of all Constitutions. He was willing, in forming this Constitution, that the powers not herein expressly delegated should be withheld. But by whom? By the State, or by the people in their individual capacity. It must be by the people in some capacityeither individual or legislative. He would be proud to record his vote against any restriction upon the people of California, except where they chose to impose restrictions upon themselves. In every respect, where restrictions are not made, they possess and have a right to exercise all the power. This is the doctrine of State rights It is the pure doctrine of the right of a sovereign State to enjoy all power which she has not, by her own action, restricted. The will of the sovereign is the law. The people of the State say they will not make certain laws. How do they say it? By this Constitution. Wherever they have not thus restricted their own power, they have a right to enact such laws as they please. He (Mr. Semple) was ever ready to maintain this doctrine on this floor or before his constituents.

Mr. GWIN remarked that all the amendment declares is, that the powers not delegated are reserved. If it went beyond that he would be unwilling to vote for it. This is merely to protect the people from the violation of their rights. The Constitution of the United States has no reference to the question under conside. ration. There is nothing in this clause but a great declaration-that all power not specially delegated to the legislature is reserved to the people. It has nothing to do with Congress-no reference either directly or indirectly to it. It is a declaration embraced in every Constitution in the United States, and he (Mr. GWIN) would be unwilling to vote for a Constitution that did not contain it.

Mr. SEMPLE asked what Constitution contained it?

Mr. GWIN said that he believed that it was in all.

Mr. HALLECK, in behalf of the Committee, (the chairman of which was absent,) stated that the article from the Constitution of Iowa was selected on account of its brevity. It was to be found in four other Constitutions of the States, nearly in the same words. He thought it could not be improved, and hoped that it would be adopted.

Mr. HASTINGS said it occurred to him that there was no necessity for further discussion on this subject, inasmuch as there appeared to be no necessity for the article at all. Why declare that all rights not herein enumerated are reserved to the people? Would it not be true without such a declaration? Does the mere assertion make it any more true? Gentlemen seem to be afraid that if they omit one right the people will loose it altogether. He would not attempt to explain his conclusions, lest they might be misunderstood; and would therefore vote for any amendment to leave the article out.

The question was then taken on Mr. Botts' amendment, and it was rejected.

r. SEMPLE said he was perfectly satisfied to vote for the amendment offered by Mr. Gwin.

Mr. GWIN hoped the gentleman would pardon him. He really thought he was opposed to the amendment.

Mr. Borrs had just that objection to it-that two gentlemen having precisely opposite opinions could consistently vote for the same amendment.

Mr. SEMPLE did not perceive, upon a more careful examination of the amend ment, that there was any difference of opinion after all between himself and the gentleman from San Francisco.

Mr. SHERWOOD thought the report of the Committee covered the whole ground. The question was then taken on the amendment offered by Mr. Gwin, and it was rejected.

The question recurring on the original section, being the 16th, as reported by the Committee, it was adopted.

On motion of Mr. GWIN, the Committee then rose and reported the bill of rights to the House.

The CHAIR stated that the question would be on the adeption of the report.
Mr. GWIN said it was not intended that the bill of rights should be adopted

now.

He proposed that it should be recommitted to the Select Committee for the purpose of having it made complete and perfect for the future vote of the House, section by section, when the votes would be taken by yeas and nays.

Mr. McCARVER thought it necessary to make some disposition of it; and he presumed the proper course would be to let it remain in the House, to be called up at any future time.

On motion of Mr. McCARVER, the report was received and laid upon the table, subject to call.

Mr. BOTTS offered the following resolution, which was unanimously adopted: Resolved, That the officiating clergy of this House be admitted to the privileged seats of the House.

On motion, the Convention then adjourned to 12 o'clock to-morrow.

WEDNESDAY, SEPTEMBER 12, 1849.

In Convention, prayer by Rev. Senor Antonio Ramirez.
The journal of yesterday was read and approved.

On motion of Mr. GILBERT, it was

Kesolved, That an Engrossing Committee, to consist of three members, be appointed by the Chair. The President appointed as the Committee, Messrs. Gilbert, Dent, and Tefft. On motion of Mr. HASTINGS, it was

Resolved, That a Committee of five be appointed by the President, to report to this Convention, what, in their opinion, should constitute the boundary of the State of California.

The President appointed, as the Committee, Messrs. Hastings, Sutter, Reid, La Guerra, and Rodriguez.

Mr. McCARVER submitted the following resolution:

Resolved, That a Committee of be appointed, to report on that portion of the schedule to be appended to the Constitution, which relates to districting, fixing the number of members for both. branches of the Legislature, and for the apportionment of the same.

Mr. McCARVER said it was true the schedule was to be appended to the Constitution, yet it seemed to him there was no reasonable ground for not allowing it to go before a separate committee. It would not conflict with the duties of any other committee, and some of the members of the House not engaged upon the business of the Select Committee already existing, could prepare a schedule for the House.

Mr. DIMMICK desired that the proposed committee should consist of one member from each district. He thought the districts should be all represented.

Mr. McCARVER preferred a small committee.

Mr. SHERWOOD hoped the gentleman from Sacramento (Mr. McCarver) would not press his motion. The Select Committee on the Constitution had already laid over a number of articles for the schedule. He did not think it would be expedient to form another committee.

Mr. GWIN differed entirely from the gentleman last up. The resolution offered by Mr. McCarver had reference to the apportionment which had never come up in the Select Committee. It was no portion of the duty of that Committee to report a schedule. They might report certain provisions to be embraced in the schedule, but he did not think it was their duty to report a schedule, which is a separate and distinct portion of the labors of the Convention. It evidently did not seem proper that one committee should have the whole labor to perform, while other members were going about doing nothing.

Mr. JONES moved to amend the resolution by providing that a committee be appointed to report a schedule for the Convention, without reference to any particular portion. His only object was to make it the duty of this committee to report all the legitimate material of a schedule for the action of the House.

Mr. SHERWOOD said, that as there seemed to be considerable doubt as to what belonged to the Constitution and what should be embraced in the schedule, he thought the schedule should be referred to the Select Committee. If another committee was appointed, the Constitution would be garbled and incomplete.

Mr. GWIN was in favor of the resolution, and opposed to the amendment offered by the gentleman from San Joaquin (Mr. Jones.) The original resolution re. ferred a distinct question to a separate committee. The question of the apportionment was one of vital importance. It should have the fullest consideration from a committee unembarrassed by other duties.

Mr. HALLECK Would merely ask one question, whether the committee proposed could do anything till the number of members was designated in the body of the Constitution.

Mr. McCARVER was not satisfied that the people of his part of the country would be willing to accept any report that the Select Committee might choose to make. It was the largest committee he had ever heard of, in a body of this character. Gentlemen who supported a measure in this committee, would be very apt to support it in the House; and having the majority, it would of course prevail. There could be no impropriety in appointing a small committee, as proposed in the resolution. When that committee made its report, there would be no mem. ber to say, you supported that measure in committee, and, therefore, must go for it now.

Mr. NORIEGO remarked, that the gentleman from Sacramento (Mr. McCarver) founded his argument on the ground, that each member of this grand committee, consisting of two delegates from each district, felt himself bound to sustain in the House whatever had been acted upon in committee; that consequently, having a majority in the House, they would carry any measure they thought proper to propose. He (Mr. Noriego) ventured to assert that the members of that Committee considered themselves as free to give their votes on any subject in the House, as they did in committee. Whatever they objected to there, they would as freely object to here.

Mr. SHANNON said it appeared to him that this matter of the apportionment properly belonged within the body of the Constitution itself, and should not, therefore, be taken out of the hands of the Select Committee and consigned to another. He contended that even if the House thought proper to appoint another committee, this subject should be embodied in the Constitution, and not in the schedule. It would be impossible to know what to do, or what to place in this schedule until the Select Committee had reported. He called the attention of the gentleman from San Francisco (Mr. Gwin) to some precedents on this subject, as he seemed so extremely anxious to follow precedents. In the Constitution of New York, the

districting of the State forms the 5th article. It is not placed in any schedule. In the Constitution of Louisiana, the boundaries of the State form the very first arti cle. In the Constitution of South Carolina, the State is districted in the third article. He believed the rule was almost universal. It was the case in most of the constitutions throughout the States. A majority of them, or if not a majority, (because in some States there is not a word said about establishing the limits,) at least in those States which he presumed would be the best authority with the gentleman from San Francisco, (Mr. Gwin,) the boundaries, as well as the districting of the State, are embraced in the body of the Constitution itself, and not left to the schedule.

Mr. JONES. The gentleman from Sacramento (Mr. Shannon) has made one unfortunate quotation at least, for the Constitution of Louisiana contains a schedule in which the first representation is a portion. It is in the 8th article of the the schedule. The gentleman has most strangely hit upon, perhaps, the only two Constitutions which do not apportion the first representation in the schedule, where there is any apportionment made. He refers to the different constitutions of the States, and asks if a majority of them do not contain the clause districting the States and apportioning the representation, in the body of the Constitution. I have myself looked over the constitutions slightly within the past few minutes, and I find that Maine, Pennsylvania, Delaware, Kentucky, Tennessee, Indiana, Louisiana, Illinois, Alabama, Missouri, Michigan, and Arkansas, all have formed these schedules, and all have temporarily apportioned the representation of the State in the schedules. I admit that this is a mere temporary thing that the schedule has nothing to do with the organic law of the State. Its object is well expressed by the schedule of Louisiana, that "no inconvenience may arise from the change from a Territorial to a State Government." These sudden changes are always apt to produce confusion and inconvenience, and it is deemed necessa ry to make some provision for them, in the form of a schedule. The organic law of the State is the Constitution, properly so called. In the meaning of terms, then, the schedule is not the Constitution, or a part of the Constitution, and does not fall within the province of the Select Committee. By the resolution appoint. ing that committee, they were instructed to report upon a plan, or any portion of a plan, of a State Constitution. The schedule is not a part of a State Constitution; it is not the organic law. If the gentleman will examine one or two of these Constitutions, he will find that the first portion of the schedule is under the head of ordinance. No man will say an ordinance is a part of the Constitution. It falls peculiarly within the schedule. The districting of the State, perhaps, would fall within the limits of the Constitution; but the first apportionment should be within the schedule. Certainly, I do not wish to deprive this Committee of any of the powers which have been delegated to it by this Convention. I am not disposed to find fault even with my friend from Sacramento, (Mr. Shannon,) who clamed fifteen votes for his district. Yet, though I am willing to listen to the suggestions of this Committee on the general provisions of the Constitution, when it comes to the apportionment of the State, I want the eight votes of Sacramento on this floor; I want the six votes of San Joaquin, and the eight votes of San Francisco. It is for that reason that I support the proposition to make a small committee, which will not consider itself bound to support its own propositions, to the exclusion of all others; but which will come before the Convention with any sug gestions it may think proper to make, as a very small portion of this body. I have heard members of this Committe call upon members on this floor to support every measure reported by the Committee, and I have heard them denounced because they did not think proper to do so. I have one great reason to give for the position which I shall take here. That reason is contained in a statement which I hold in my hand. Without pressing it upon the attention of the House, I would merely state, that by it I am prepared to prove that 740 votes will rule this House, against 4,429 votes, which are entitled to be represented here. I am prepared to