Mr. GILBERT said he would read from the Treaty of Peace, a couple of sections which explained in full the reasons which induced him to offer the amendment: ART. VIII. Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without being subjected, on this account, to any contribution, tax, or charge whatever.

Those who shall prefer to remain in the said territories, may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But they shall be under obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.

In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy, with respect to it, guaranties equally ample as if the same belonged to citizens of the United States.

ART. IX. The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding article, shall be incorporated into the union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and, in the meantime, shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.

It seemed to him (Mr. Gilbert) that the section, as reported by the Committee, providing that "every white male citizen of the United States shall be entitled to the elective franchise," did not cover the whole ground. We wish to give every Mexican citizen residing in California, who becomes a citizen of the United States, the free right to vote. Under the 9th article of the treaty it would seem that they are not in fact American citizens, but require some further action of Congress to make them citizens of the United States. That article says: "shall be incorporated into the union of the United States, and be admitted at the proper time, (to be judged of by the Congress of the United States,) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution." If the Congress of the United States had done its duty to this country, it would have passed a law at the last session, admitting these citizens to all the powers and privileges of citizens of the United States. But, as it failed to do so, he (Mr. Gilbert) deemed it absolutely essential, in order to prevent any difficulty, that the amendment which he offered should be inserted in this clause. The meaning of the word "white," in the report of the Committee, was not generally understood in this country, though well understood in the United States; but that objection would be removed by the adoption of his amendment.

Mr. BOTTS said he had risen almost at the same time with his friend from San Francisco (Mr. Gilbert) to offer an amendment nearly, but not quite, indentical with that proposed by him. It was clear that by the adoption of the clause reported by the Committee, citizens of Mexico would be excluded from voting before they were made citizens of the United States by the Congress of the United States. His amendment was to insert the word "white" before "male citizens of Mexico." Mr. NORTON said he was instructed by the Committee to introduce an amend ment to the first section. The reason why he did not do so, was because the amendment of Mr. Gilbert seemed to him to accomplish the object. He would read the amendment: after the words "United States," and before the word "of," to insert the words, "and every person who was a citizen of California after the 1st of May, 1848."

Mr. BoTTs said that the Committee had made a report; they could not order it to be altered. If any amendment was made to it, it must be made by the gentleman himself, (Mr. Norton.) He (Mr. Botts) wanted to come to the main princi.

hat unless provision is made for these persons the clause does not admit

them. The gentleman from San Francisco (Mr. Gilbert) had left out an exceed. ingly important word. He (Mr. Botts) proposed to amend the amendment by inserting the word "white" before the words "male citizen of Mexico." He hoped it would be the will of the House that no citizens of the United States should be admitted to the elective franchise but white citizens. All he asked was that citizens of Mexico who had become citizens of the United States should be placed upon the same footing with ourselves; that white citizens alone should be admitted to the right of suffrage. He was sure there would not be any objection on their part to this course.

Mr. NORIEGO desired that it should be perfectly understood in the first place, what is the true signification of the word "white." Many citizens of California have received from nature a very dark skin; nevertheless, there are among them men who have heretofore been allowed to vote, and not only that, but to fill the highest public offices. It would be very unjust to deprive them of the privilege of citizens merely because nature had not made them white. But if, by the word "white," it was intended to exclude the African race, then it was correct and satisfactory.

Mr. Borrs had no objection to color, except so far as it indicated the inferior races of mankind. He would be perfectly willing to use any words which would exclude the African and Indian races. t was in this sense the word white had been understood and used. His only object was to exclude those objectionable races-not objectionable for their color, but for what that color indicates.

Mr. GILBERT hoped the amendment proposed by the gentleman from Monterey (Mr. Botts) would not prevail. He was confident that if the word "white" was introduced, it would produce great difficulty. The treaty has said that Mexican citizens, upon becoming citizens of the United States, shall be entitled to the rights and privileges of American citizens. It does not say whether those citizens are white or black, and we have no right to make the distinction. If they be Mexican citizens, it is sufficient; they are entitled to the rights and privileges of American citizens. No act of this kind could, therefore, have any effect. The treaty is above and superior to it.

Mr. GWIN would like to know from some gentleman acquainted with Mexican law, whether Indians and negroes are entitled to the privileges of citizenship under the Mexican Government.

Mr. NORIEGO understood the gentleman from Monterey (Mr. Botts) to say that Indians were not allowed to vote according to Mexican law.

Mr. Borts said that, on the contrary, it was because he believed they were, that the had offered the amendment. He wished to exclude them from voting. Mr. GWIN asked the gentleman from Santa Barbara (Mr. Noriego) whether Indians and Africans were entitled to vote according to Mexican law.

Mr. NORIEGO said that, according to Mexican law, no race of any kind is excluded from voting.

Mr. GWIN wished to know if Indians were considered Mexican citizens? Mr. NORIEGO said that so far were they considered citizens, that some of the first men in the Republic were of the Indian race.

Mr. GWIN had learned from the gentleman from Santa Barbara (Mr. Stearns) that there were twenty thousand Indians in Mexico. He wished to know whether these twenty thousand Indians were allowed to vote?

Mr. FOSTER said that, according to Mexican law, very few of the Indian race were admitted to the right of suffrage. They are restricted by some property quali fication, or by occupation or mode of livelihood. But they are considered Mexi can citizens according to the Constitution.

Mr. HASTINGS remarked that if, by the treaty of peace, these persons are all entitled to vote, they could not be excluded by this Convention from the enjoy ment of that right. If they are not entitled to vote according to Mexican law, and hence according to the treaty, we should not allow them to vote. It would

be a most injurious measure to permit the Indians of this country to vote. There are gentlemen who are very popular among the wild Indians, who could march hundreds up to the polls. There is no distinction between an Indian here and the remote tribes. An Indian in the mountains is just as much entitled to vote as anybody, if Indians are entitled to vote. But men who have Indian blood in their veins are not for that reason Indians. There are, perhaps, many persons resident in this country who have Indian blood, but who are not considered Indians. If the motion was in order, he (Mr. Hastings) would move to defer further action upon this matter until the law of Mexico on the subject could be procured. There was no necessity for haste in passing this section.

Mr. DIMMICK trusted the motion would prevail, to defer the consideration of the subject. He held different opinions from some of the gentlemen who had spoken, as to the Mexican law in relation to the citizenship of Indians. He had supposed that Indians, in order to be entitled to the rights of citizenship in Mexico, were obliged to go through some form of naturalization, by which they became citizens. He arrived at this fact from having seen papers in the possession of Indians, who had received grants of lands, in which they went through certain forms of natu ralization. He trusted the Convention would not act hastily in this matter; for he would be very unwilling to see the Indians of this country brought to the polls to vote in our elections. At the same time, where there was here and there a good Indian, capable of understanding our system of government, he had no objection to making such provision as would entitle him to vote.

Mr. TEFFT had obtained some information in regard to this matter. He was disposed to differ from the gentleman from San Jose, (Mr. Dimmick.) The Mexican laws define, in the first place, what is a Mexican citizen; "any person born of Mexican parents, or under Mexican laws;" they declare that all Mexicans shall vote, having an income of $100 in labor, lands, &c. He (Mr. Tefft) would like to have further time to look into the Mexican laws, and, therefore, hoped the subject would be postponed. He desired that the House. should act advisedly, and according to the treaty of peace.

Mr. Borts had no objection to deferring the consideration of the clause. He had no doubt in his mind that the statement made by the gentleman from San Luis Obispo (Mr. Teffi) was correct. But there was one doctrine urged here, that really astonished him-that the treaty of peace between the United States and Mexico, or any other treaty, could prescribe to this Convention what persons it should make voters in the State of California! The Congress of the United States could not do it. Were gentlemen not aware of that fact? They ought to be shouting hozannas to liberty, now that they were informed of it. The States of this Union are free and sovereign. They prescribe for themselves the right of suffrage. Gentlemen need not look to the treaty of peace for authority; it is competent for the people of this country to declare that no man, unless he have black hair and black eyes, shall vote. If that treaty had said, that none but the citizens of Mexico should vote, the Constitution of the United States prescribes that you shall fix your own elective qualifications. It particularly guards you against the abuse of the powers exercised by Congress.

Mr. GWIN had been endeavoring to get all the information possible on this subject. He had ascertained the fact, that by the passage of the amendment of his colleague, (Mr. Gilbert,) Indians would be permitted to vote. He found, that in the Constitution of Texas, (a State somewhat similar in the character of its population to this country,) there is the following restriction:

"Every free male person who shall have attained the age of twenty-one years, and who shall be a citizen of the United States, or who is, at the time of the adoption of this Constitution by the Congress of the United States, a citizen of the Republic of Texas, and shall have resided in this State one year next preceding an election, and the last six months within the district, county, city, or town, in which he offers to vote, (Indians not taxed, Africans, and descendants of Africans, excepted,) shall be deemed a qualified elector,” &c.

He did not think the descendants of Indians should be excluded, but the pure uncivilized Indians should not be permitted to vote. It was stated to him, by an officer of the army, that in California there are a hundred tribes of Indians; that a few white persons control them; and that they would vote just as they were directed. He did not wish to limit the portion of the population that was in the habit of voting-those having property qualifications-but the restriction should be distinctly understood and defined. He would be in favor of saying, "Indians, but not the descendants of Indians."

Mr. BOTTS accepted the suggestion of the gentleman from San Francisco (Mr. Gwin;) instead of the word "white," to insert," and every male citizen of Mexico, Indians, Africans, and the descendants of Africans excepted."

Mr. GILBERT rose to say a word or two in reply to the remarks of the gentle. man from Monterey (Mr. Botts.) He was willing to go as far as that gentleman in defence of State rights, and as far as any member in the House to protect the States from encroachments on the part of Congress, but he differed from him in the reading of this treaty, and in the reading of the Constitution of the United States. He would call the gentleman's attention to the 6th article of the Constitution, section 2d:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

This treaty is therefore the supreme law of the land. It appeared to him that nothing could more definitely settle the question. We cannot go beyond this treaty, and disfranchise any man who is admitted under the treaty to the rights of citi. zenship. Ferhaps, so far as regards the election of Governor and State offieers, we might prescribe the rules of voting; but we cannot, in this instance, where the Constitution guaranties certain rights to these persons, who have become citizens of the United States under the treaty, deprive them of those rights. The only question here is in regard to the proper time when they shall be entitled to vote, and the object of the amendment is to fix the time beyond doubt. He wished to make no invidious distinctions as to color, but to abide by the treaty of peace and the Constitution of the United States.

Mr. HASTINGS said that, upon further reflection, he presumed the gentleman. from Monterey (Mr. Botts) would observe that if we do not recognize this treaty, no treaty of peace exists. We are then at war with Mexico. We have no treaty to protect us. We are protected by no authority whatsoever but that of physical force. We came here under this treaty; gentlemen sit in this Convention under this treaty; it is in virtue of this treaty alone that we are possessed of this territory. If we carry our principle of State rights so far as to say we are wholly independent, and need not regard treaties of the United States, why not, with the same propriety, carry it further, and say we need not regard the Constitution of the United States? If we violate the stipulations of this treaty, we violate the Constitution. The gentleman from Monterey (Mr. Botts) asserts that we have a right to declare that no man shall vote unless he have black hair and black eyes. This is a principle of State rights that cannot be maintained in the present case. We must include every citizen of Mexico which the treaty of peace admits to the right of citizenship. It is impossible to arrive at any other conclusion, unless we violate the treaty. If the principle be well founded, that we may exclude certain persons who are made citizens by the adoption of the treaty, and hence who are entitled to be regarded as citizens, may we not, with the same propriety, exclude every native Californian? We cannot do it. being who was a citizen at the time of the adoption of that treaty. Every man We dare not exclude one human who was a citizen then, is a citizen now, and will be while he lives in California, unless he declares his intention to remain a citizen of Mexico. Our Constitution must, therefore, conform to the treaty, or it is null and void.

5

Mr. Borrs thought the doctrines which he had just heard urged were at least novel. He had heard many federal doctrines, but never any like these. He saw plainly, after all that was said about not having Whigs or Democrats here, that it was a shallow device. A new party had come up-one beyond the extreme of federalism; a party that contends that there is a power in the Executive of the United States to make a treaty contrary to the provisions of the Constitution. Were there any three men on this floor ready to record their names in support of this doctrine? But he desired that his own position should be well understood. He maintained that this treaty, so far as he knew, is binding in every clause, because it does not contradict the Constitution of the United States; it does not prescribe who shall be our voters. If it had made those citizens of Mexico directly citizens of the United States, it would not have said that they should be voters of the State of California. He granted, for the sake of argument, that these Indians are citizens of the United States, because they were citizens in Mexico. The question is still open whether they shall be voters. There are thousands of citizens of the United States who are not voters. Gentlemen should not confound the words. It does not follow that if a man be a citizen of the United States he shall be a voter. Was it necessary for him (Mr. Botts) to speak two minutes to put down forever the monstrous doctrine that the treaty-making power can transcend and set at naught the Constitution of the United States; and, least of all, that a citizen of the United States must necessarily be a voter ?

Mr. GWIN said that in Virginia there are thousands who spend their lives and die without ever having the privilege of voting. There is a property qualification required there, as also, he believed, in some other States of the Union. As the gentleman (Mr. Botts) said, we could exclude all these Californians from the privilege of voting; but that is not our intention. It would not be right or just. This is a very important question. If we permit every Mexican citizen to vote, under our free and liberal system of voting, we would enlarge the vote immensely to what it was under the former Government here. For instance, there were certain laws, under the Mexican Government, that no man should vote unless he could read and write. We are to declare who shall have a right to vote. We only exercise the same privilege that was exercised by the previous Government. Indians should be excluded, but not the descendants of Indians. It must be by special enactment if they are permitted to vote.

Mr. HASTINGS asked if the treaty did not design that those citizens referred to should be entitled to all the privileges of free citizens of the United States.

Mr. GILBERT said that according to the principles of the Constitution they should be admitted to all the rights and privileges of free citizens of the United States.

Mr. HOPPE had a different construction of this clause of the Constitution from some of his friends in the House. His friend from San Francisco (Mr. Gwin) observed that there was a property qualification in some of the States. He (Mr. Hoppe) admitted that; but at the same time it should be remembered that the States of the Union, and that of California, were admitted into our Republic in a different manner. California was admitted by a treaty between the United States and Mexico. Now we have taken a solemn obligation that we will support the Constitution of the United States. That treaty gives the right to every Mexican citizen, who becomes thereby a citizen of the United States, to enjoy the freedom and privileges which we enjoy. What does the Constitution say? It says that all treaties made under the authority of the United States shall be the supreme law of the land. Suppose we pass a law prohibiting Mexican citizens from the full enjoyment of the free elective franchise. What will be the effect? When this Constitution is presented to the Congress of the United States it will be rejected, because it is in direct conflict with the treaty of peace and the Constitution of the United States. He (Mr. Hoppe) was prepared to vote in favor of Mr. Gilbert's proposition. He thought the House was fully satisfied on the subject.