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but to a higher and greater authority. He found, upon glancing at the correspon. dence, that the President of the United States had dared to give orders for the disposal of the civil fund. Every feeling prompted him to repel any proposition founded upon this state of things. Could any man doubt the illegality of such an, order? Is there not a clause in the Constitution of the United States providing that no monies shall be drawn out of the public treasury, except in consequence of appropriations made by law? With such a clause staring them in the face, were gentlemen willing to ask any individual to do an act so clearly illegal? He was told expressly that these are the civil funds of the United States. Every member of this House was well aware that Congress has made no appropriation by which this money can be paid out of the Treasury of the United States for this purpose. It was a violation of the Constitution on the part of the President of the United States to give such an order. Will you aid or abet in this act? Will you have any hand in receiving or disposing of this money, which you can only get by a violation of the Constitution ? The alien and sedition law was nothing to this. In the whole history of our Government, there never has been such a flagrant violation of the Constution, as that which is brought to your knowledge in this correspondence. That fund is, and must of necessity be, in the Treasury of the United States; it cannot be otherwise. He hoped it would not be urged upon him that it had never been in the Treasury. From the moment that money belonging to the United States comes into the hands of a collecting officer, it is in the Treasury. Deny it, and the people's money is at the disposition of every receiving and disbursing officer in the country. There never comes a dollar but comes through their hands. General Riley does undoubtedly what he was ordered to do; but that order was illegal, and you are aiding and abetting in an illegal act when you consent, much more propose to receive any portion of this fund. In the first place, he (Mr. Botts,) could not admit for one moment, that this Convention should appear at the footstool of any individual, and humbly ask that he should dole out to them such expenses as he deemed necessary. In the next place, he considered this whole affair an unclean thing; that the Executive of the United States had violated every obligation he had given to support the Constitution, and that this Convention would be equally culpable in accepting any portion of this fund. He designed to take no part in the difficulties which had arisen' between General Riley and General Smith upon this subject; he had not a word to say about it; but whether it came from General Riley, or General Smith, or the President of the United States, he could not consent to touch one cent of this money. As to the pay of members of this House, it would be more decorous and consistent with the dignity of the Convention, in his opinion, to leave others to fix that matter. It was just and proper that the pay of the officers should be fixed; but with regard to the members, he proposed to introduce in the schedule a clause providing that the first Legislature shall fix the rate and provide for the pay of members of this House. He thought there was no other mode of paying the officers than that usually adopted by similar bodies in the States to refer it to the first Legislature. If it was the opinion of the House that, in consequence of the delay and inconvenience to which they would necessaraily be subjected, their salaries should be increased, he was prepared to allow them more.
Mr. Jones remarked that such was the discursive character of this debate, that he apprehended the original resolution had been forgotten. There was one great objection he had to the course of the majority of this Committee in getting the money from the hands of the civil government here. He thought it a greater objection than that argued by his friend from Monterey, (Mr. Botts.) The objection was this : that it does not appear to be known whether there is any money there
We are told that if you give the officers of this Convention about what they could dig with their picks at the mines, they may in all probability be paid. He (Mr. Jones) did not suppose that an officer representing the Government of the United States here-an officer high in commandmand whose reputation was
above reproach, would attempt to hold the reins of government so far in his hands
to attempt to guide this Convention, by saying that he would regulate the pay
the officers himself, and thereby bring it within such bounds as he deemed proper,
Mr. Borts said he intended no reflection upon the officer high in command. He had simply opposed the principle giving the right to any officer, or any power in existence, to dictate to this Convention what should be its necessary expenses.
Mr. Jones alluded to the general tendency of the gentleman's remarks. The great objection urged in other quarters of the House seemed to be that this was an enormous tariff of prices brought in by the Committee--that it could never be paid. In the estimate made by the Committee, some twenty dollars a day must have been allowed for the pay of members, besides travelling expenses. This he considered altogether too high. As one member of this Convention, he pre. ferred that the Congressional price should be the utmost paid to members of this Convention. A Senator of the United States receives eight dollars a day and eight dollars for every twenty miles. He (Mr. Jones) thought that price amply suficient for members of this Convention. It would greatly decrease the estimate of the Committee. The whole expense for the month would not probably exceed some thirty thousand dollars. When. General Riley, acting as the civil head of this Territory, stated to the Committee that he could not say whether he would be able to pay it all, it was in reply to a communication from the Committee asking whether he would pay the expenses, and was evidently not intended to control the action of this Convention. · In relation to the pay of officers, he (Mr. Jones) con. tended that this House was in honor bound to pay them as much as they could receive in other parts of this Territory; not at the rates they could obtain in the old States, where living is so much cheaper. Any one of these gentlemen, by pursuing his occupation in the mines, might readily have gained sixteen dollars a day; and great expense has been incurred by them in coming here. He considered it quite as hard work leaning over a desk, as wielding the pick and shovel in the mines. These officers must be paid. We cannot do without their services. We, as members, have all the honor and glory, and may possibly submit to serve without any pecuniary consideration ; but there is no particular honor-no extra. ordinary glory attached to the office of a copying clerk. He (Mr. Jones) was willing not to demand one cent for his services, if this State objected to pay it; but it was altogether a different matter with officers of the Convention. There was one gentleman—the Sergeant-at-Armswho had lost from his ordinary occupation some fifteen days in coming here. The pay of that officer would not amount at the end of the session to what he would have earned at his pick and shovel, Here was a copying clerk who had travelled hundreds of miles, by land and water, to get here; his pay was eighteen dollars a day, without anything for his travelling expenses. It was the same case with all the officers. He would, therefore, most heartily support the estimate of the Committee; he thought it very reasonable. But another branch of the subject had been taken up by his friend from Monterey, (Mr. Botts.) Shall we touch this money at all, which we suppose to be in the hands of General Riley ? Won't it burn our fingers, or soil them, or create some extraordinary sensation throughout the community ? Would it be at all proper to pay those gentlemen out of a fund placed at the disposal of the civil Government, by the President of the United States, unless we can find authority in the Consti. tution of the United States to justify the President in adopting this course ? Now he (Mr. Jones) contended that if the Government of the United States does legally possess this Territory it is legally bound to support it.
Mr. Borts asked the gentleman to distinguish between the Government and the President.
Mr. Jones resumed. The only right we can have is the incidental right of the treaty-making power. We are the conquering, power, and make the treaty. If we acquire territory by cession, we do it under the treaty-making power, and not by express grant of the Constitution. He acknowledged this was a nice question, requiring deep reflection. It had come suddenly before the House, and he was altogether unprepared to discuss it ; but he would endeavor to give some idea of the principles which he thought should be recognized by his friend from Monterey as thoroughly democratic. That theory is, that we govern this country not by the Constitution of the United States, but by virtue of the treaty.making power, and by the right of sovereignty. If by virtue of the treaty-making power we (the Government of the United States) came into possession of this territory, and it is left without support, we are bound to provide for it. We cannot, under the law of nations conquer a country, or become the possessor of an entire territory, with. out providing some sort of government for it. We cannot deprive that territory of its legitimate government, and not establish another in its place. Suppose General Riley had received no authority to expend a cent for the support of this territory, what would have been its situation? It would have been a commu. nity without law-without government—without the right to receive a single cent to support a government. Such a policy would have been a high crime against the law of nations. It would have merited the reproach of all mankind. The Congress of the United States failed to perform its duty; the executive branch of the Government, under the treaty-making power, was therefore bound to supply this absolute necessity of a conquered country.
Mr. Borts asked if the gentleman meant to say that a clear and plain clause of the Constitution could be violated by the Executive, or by any other branch of the General Government.
Mr. JONES. A clear and plain clause of the Constitution, and the whole spirit of the Constitution, and the whole spirit of the Government of the United States, were violated when Texas was acquired, and when this country was conquered. He did not think there was a single gentleman in this House who really and can. didly believed that the Constitution of the United States gave the slightest color of authority to the acquisition of any foreign territory whatever to the United States. He did not believe the framers of the Constitution ever contemplated such a thing. But he had no disposition to go into that question. This country was now in possession of the United States. It must be provided with law-with a government. It is necessary to establish some system of government, to prevent the inhabitants from reverting to an absolute state of barbarism. If, therefore, the General Government is bound to furnish us with the protection of laws, it is bound to furnish us with the means to pay for the establishment of a Government. He had en. deavored to answer the arguments of the gentleman from Monterey, merely to show that this was at least a doubtful question, and that it was unwise to bring it up on this floor. It does not pertain to the business of this Convention. It is a question between the Government of the United States and its Executive head; and between that Executive head and the civil officer who has charge of the Go. vernment of California. If it is not plainly a question of receiving stolen money, he had no objection to receive this money. Where it is a matter of doubt, and where the instructions of the Government will sustain its officer here, he did not see that this Convention was called upon to interfere, one way or the other. He did not believe the people required that they should settle the question here, as to whether the Executive was justifiable in giving certain instructions to General Riley. Will the gentleman from Monterey propose a better mode of paying the officers of the Convention? Shall we pay them by subscription, or taxation, or in the schedule? As to the proposition of the gentleman to provide in the schedule that a tax shall be levied at some future time to pay these gentlemen, it is unjust as well as impracticable. The officers are here under heavy expenses, and with. out means. They must be paid. They are working for this Convention, and entitled to their wages as they perform their work; and if members were all as well satisfied as he was that the payment of this money by General Riley would be legal and proper, it would be paid.
Mr. HALLECK observed, in relation to the instructions as to the use of the civil fund here for the payment of officers of the civil Government, that they were in. structions from the former, not the present administration.
Mr. Gwin asked if they did not apply distinctly to the country when it was in a state of war.
Mr. HALLECK was understood to say that their application was not limited to any particular period.
Mr. Price said that, representing as he did, the majority of the Committee that made the report, he felt bound to say a few words in relation to it. The rate of pay fixed in the report for the officers of the Convention, was a matter of a good deal of discussion in the Committee; and in coming to their conclusions, they took the standard of wages which they believed to be usual in this country at the present period, and graduated the pay of these gentlemen in accordance with that standard. They believed that the laborer was worthy of his hire. They wanted the Con. vention first to decide upon the rate of pay that these officers are to receive, that they might be able to make an estimate which they could send to General Riley, so as to get a direct reply from him, stating whether he would be able to pay the amount fixed by this Convention. He (Mr. Price,) did not believe that General Riley wanted any higher voucher for the payment of these officers, than the vote of this Convention. He had some little experience in the settlement of accounts with the Treasury of the United States, and he knew that the Government of the United States never could ask any higher authority—any higher approving power than the vote of this Convention. He could not believe for a moment that Gene. ral Riley would attempt to exercise any authority or control over the vote of this House. He did not believe that he would say these gentlemen shall receive more or less than the amount fixed by the Convention. He did not believe General Riley had ever thought of fixing any oiher rate of pay, by the term pecessary expenses. The meaning intended to be conveyed was, to the limited amount that the civil fund now in his hands might justify. As he (Mr. Price) understood it from the correspondence, he (General Riley) was willing to go to that extent. Now, the wages of a mechanic at this day in California average from $12 to $16 a day—that is an uncontrovertible fact; and it may just as well be, that we en. lighten the Government at Washington upon this point-that we make known to them through this Convention, the high rate of wages here. It will be the most striking mode in which they can receive it. The Committee had had a due sense of economy in fixing these rates ; they believed them to be entirely just and proper, and they hoped the House would sustain them in their estimate. We have nothing to do with the right, or the inquiring as to the right of General Riley to dispose of the civil fund in his hands. The Congress of the United States will pay, and is bound to pay the expenses of this Convention. Now, if the merchants of San Francisco, perchance the clients of the honorable gentlemen from Monterey, (Mr. Botts,) have any claim upon these funds, their rights cannot be impaired in this way, by Gene. ral Riley defraying the expenses of the Convention ; for if the funds have been-il. legally collected, he is the Government officer, and the Government is bound by his acts ; and these funds will be paid back. The course pursued by General Riley cannot change or alter the rights of these claimants. He (Mr. Price,) trusted that this estimate of the Committee might be thought, as a majority of the Com• mittee thought, the proper rate of compensation, and that the House would imme. diately act upon it, and give instructions to the Committee for further action, if it was deemed necessary.
Mr. McCARVER thought gentlemen were taking grounds that should not be taken by this Convention in relation to obtaining the means of defraying its ex. penses. He could not see in what way it devoled upon this body to inquire how General Riley came by the funds which he has in his posssession, or to ascertain by what authority he proposes defraying the expenses of the Convention. The citizens of California sent delegates here for a special object--to form a Constitu. tion. If any individual proposes to come forward and pay
expenses, there is no necessity for entering into any inquiry as to the manner in which he obtained the means, nor is it the duty of this House to discuss questions of that kind. It is enough to know that General Riley is an honest, high-minded gentleman, holding a high position here. If he has acted improperly, or if the President of the United States has acted improperly, it is between him and the President, and between the President and the Congress of the United States to settle it. The proper place to try him for malfeasance in office is in the United States. We have no right to go behind his instructions, and question the Executive authority. He (Mr. McCarver) did not believe that the Governor had any right to exercise any control or authority over this House. Intimation is given to us that, if the expenses are brought within certain limits, they will be paid ; if not, they will not be paid. It mattered not to him (Mr. McCarver,) whether General Riley paid a portion or the whole of the sum necessary for that purpose. The action of this House should be entirely independent of any thing General Riley has said. It should regulate the salaries of its own officers, and is fully competent to do it on its own responsibility: It is not for this Convention to inquire what amount General Riley will pay,
and then graduate the salaries of the officers accordingly. Let the rates of pay be determined unconditionally and directly, so that those gentlemen may know what they are to receive.
Mr. WozenCRAFT said that this report was laid on the table yesterday, with the understanding that that portion should be taken up which relates to the per diem allowance of the officers. If he had supposed that the minority report, or that part relating to the manner of providing for the payment of the expenses of the Convention, would have come up, he would have moved for its indefinite postpone. ment. We have no business to take into consideration here, whether the existing civil officer of this Territory has or has not the power
expenses. This question is foreign to the legitimate object of the Convention, and leads to endless debate. He now moved to divide the question as to the rate of salaries and the subject of the civil fund, and indefinitely postpone the latter.
Mr. Sherwoon. I desire to make a few remarks on this subject, although the question has been very fully discussed. There seem to be two reports from this Committee-the majority and minority report; one assuming the ground, founded upon a correspondence with Governor Riley, that we can obtain the means of paying the expenses of the Convention, mostly, if not entirely, out of the funds now in possession of the civil Government of California. The minority report, on the contrary, assumes the ground that we should not ask Governor Riley for these funds, but leave the payment of the expenses entirely to a future Legislature. Almost necessarily, this minority report opens the question as to the power of Governor Riley to pay out any portion of the money in his possession. For myself, I do not think this question should have been brought up here. There should have been no discussion as to his power in this Convention; and although the minority of the Committee have seen fit to make a report founded upon th's correspondence, I entirely disagree with that report in regard to the question of power ; at the same time I do not think it should have been brought before the House. In the first place, we are the representatives of the people, assembled under a call from the Civil Governor of the Territory. We came here for a specific object—to form a Constitution; and without knowing whether this Constitution will be adoped by the people or not, we cast about us to ascertain how we can pay the ordinary expenses of the Convention.
We have certain officers for whom, if no provision be made now, and the Constitution be rejected by the people, no compensation will be received by them, unless it be defrayed personally by us. The people of California, if they reject our labors here, are not bound by any law to meet the expenses of the Convention. They could make a subscription and pay the necessary sum in that way ; but the question now is, as to the payment of our officers at this time, for I apprehend they would scarcely be willing to look to a future Legislature for their compensation. We have, through our Committee, applied to the Governor. That officer states that he has a civil fund under his control; and for the information of the Convention has laid before us a document in which he defends the right to collect the money in the manner that it has been collected for the purpose of a civil fund. In a state of war we have collected imposts. We did it in the last war with Mexico; California came into the possession of our troops. It is to be pre-supposed that after war shall have ceased, the Government of the mother country will provide a Government for the conquered territory. A year and a half, perhaps, have elapsed ; a long session of Congress has closed, and yet no more than during and after the close of the war has Congress provided for the government