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of its conquered territory, afterwards acquired by treaty. It was competent for the military officer, under the instructions of the Secretary of the Treasury, to collect imposts during the war. From the want of action by Congress after the war closed, the same course was necessarily pursued, and it was perfectly justified by the absence of contrary instructions from the Government; and until there was some direct action of Congress authorizing a different course, it was the duty of the military officer in California to collect the revenue as it was collected during and after the war. About a million of dollars has been thus collected- -a very small portion of which has been expended upon a Government for the people of Cali nia, for they have been without courts, without proper legal tribunals, almost without a form of government. The civil Governor now says to this Convention that he has a fund collected in this way by imposts, and that he has expended it to defray the ne. cessary expenses of the Government, and will continue to do so while he holds the office, until he has contrary instructions from the Departments in Washington. I think in this he has acted wisely and properly, and will be justified not only by the people of California, but by the Congress and people of the United States. Congress neglected, after a protracted discussion on a question with which they had nothing to do, to provide a Government for this Territory. Foreign ships with foreign cargoes have come into our ports here, and the civil Government has received the duties which, under the revenue laws of the United States, must be received on foreign goods. What would have been the result had he decided otherwise, during the interegnum between the termination of the war and the present time, or up to the period when the revenue laws for this Territory were passed by Congress. Your English ships, your Chinese ships, your Chilian and Sandwich Island ships would have cast anchor in the harbor of San Francisco, and their cargoes would have rotted there ; or otherwise those cargoes would have been admitted into this Territory, carried across into other States, and no revenue whatever would have been derived from them. ple of this Territory needed those goods. The merchants paid these duties as they would have done under a law of Congress ; as they do now under the revenue law passed during the last session. They were bound to pay duties by the general laws of the United States, which prohibit the introduction of foreign goods into any part of our territory without the payment of imposts. The people of California, however, paid the duty in the end. The miners, and the people who live throughout the country, who own land and have families--in short the whole population of California eventually paid those duties, not the merchants. The merchant, if he paid 20 per cent. upon his goods, charged the 20 per cent, and his profits besides. It was the people of California that paid this whole fund; and yet, at the same time, they have been furnished by Congress with no laws to govern them. As a necessary inference these duties belong to them. If Congress had furnished a Territorial Government, with officers and courts for the Territory of California, then the duties received here on foreign imports would have gone into the Treasury of the United States, and Congress, by law, would have appropriated them to defray the expenses of a Territorial Government. But, in the absence of law, these revenues belong to the people of California - to the people of the future State-to enable them to carry on their government, to erect their public buildings, and pay all the expenses incident to the organization of a State Government. General Riley has loaned out to the General Government a portion of these revenues If we are admitted as a State; if this Constitution is adopted by the people ; if the proper men are sent to the Congress of the United States, they will insist upon this half million loaned by General Riley being returned to the people of California. The people paid the duties, and it belongs to them. The General Government neglected to provide them with the protection of laws--with any of the advantages afforded by a Territorial Government. In the absence of this action on the part of the home Government, it justly and properly belongs to them as a fund for the accomplishment of that which · the General Government neglected to do. But, after all the discussion on this question, it comes down to the point which I conceive to be that upon which the House is now to decide. I do think that the report of the Committee in regard to the pay of the officers is a little too high. I admit the justice of the remarks made by the different gentlemen, that the cost of living is much higher here than in the United States ; that the cost of labor is higher ; and consequently I would pay them the wages that are paid throughout the country. We must not be governed by the wagęs paid throughout the United States—that is evident. The people of this lerritory would say we had done injustice to these gentlemen if we were guided by that standard. The cost of living, the price of board, rent, lodging, &c., is much higher here than in the old States. I think that the people of California who will adopt this Constitution, as I trust they will, are willing to pay them good fair wages ; but we must not, as has been said, set the example of extravagance here. Though we pay well, we should not squander the public funds. We should not lay ourselves liable to the imputation of having acted from motives which will create distrust with our constituents when we go home, by paying to ourselves and to the officers a higher amount than public opinion will justify; an imputation that would taint even the Constitution that may go from our hands to them. Although I would be liberal and pay them fair prices, yet, I think, with all deference to the opinions of the Committee, we shall be compelled to reduce the estimate. When we come to strike out and fill up the blanks, the Convention can fix upon the amount which they think best. I am in favor of fixing the highest salary at one ounce. It is the value of daily labor in the mines. It is all that can be got here. It is all that can be got ordinarily any where in the country. I trust the other officers will be paid very nearly the same. There is, as I understand,
but little difference in the duties performed ; at any rate not such as to require any great difference in the salaries. It is usual in paying the officers of the older States to pay from the highest to the lowest—those elected by the House as well as those appointed by its authority—about the same price. I think we should not vary from that rule.
Mr. WOZENCRAFT had a word to say to gentlemen who were in the habit of preaching economy. This House was spending day after day at an enormous ex. pense in discussing questions which had no reference to its duties. He was an economist himself, and he thought the best economy would be for the Convention to confine itself to its legitimate business. He believed the estimate of salaries was reasonable enough, and he was prepared to vote for it.
Mr. Gwin said he would give his reasons why the motion of the gentleman from San Joaquin (Mr. Wozencraft,) should be adopted. In the first place, he did not think that this question as to General Riley's power, ever should have come up before this Convention. It was no part of the duty of members of this House to discuss it. Every word that had been said on the subject was out of order. It was to form a Constitution that this Convention was assembled—not lo determine whether the present civil Governor of California had acted in accordance with in. structions, or whether these instructions were in accordance with the Constitution of the United States. If General Riley has a fund out of which he is willing to pay the expenses of this Convention, the fact that he has that money, and is wil. ling to advance it, is sufficient for this Convention. It is not necessary to go be. yond that fact, Before the Convention adjourns, it should be stated by resolution that, if any amount he may advance out of that fund should involve him in difficul. ty, that the faith and honor of the people of California are pledged to protect him. What the delegates of this Convention say as to the legality of the manner in which that fund may have been collected or may be disposed of, can have no effect on the subject. He could assure gentlemen that if they were to vote here that General Riley had exceeded his powers or had not exceeded them, it would not make the slightest difference. It would be looked upon as absolutely nothing by those before whom this question will eventually come. The gentleman from Monterey (Mr. Botts,) was altogether mistaken in saying that the President of the United States had ever committed himself on the subject of these duties. He called upon him (Mr. Botts,) for his authority. It could not be found; it did not exist. For no President of the United States ever would have done, or sanctioned the doipg of what General Riley has been forced by necessity to do. Look to the public documents and to this communication from the Governor, (which is one of the most important documents that has appeared for a long time in this country) and if you will find a single word where the President of the United States has authorized the collection of these duties, you will find a question in the Congress of the United States infinitely more exciting than the removal of the deposites from the Bank of the United States, which convulsed this country some years ago ; for the President has sworn strictly to execute the laws under the Constitution. There is not a man who lives, can pretend that any law of the United States has ever authorized the collection of these duties. But it was no sinecure upon those who collected them. He did not wish to be misunderstood on this question. There was no doubt but that the people of California claimed this fund, and had a right to it; and if justice was done them, they should have it.
Mr. 'Botts threw himself on the indulgence of the House to reply to some of the remarks which had been made. He contended that this money was in the Treasury of the United States ; that without an act of Congress, it could not be paid out; that Congress had never appropriated it to pay the expenses of this civil Government. He had called upon his fellow-members to show him any law for it. When he asked for bread, they gave him stones. Gentlemen asserted that this subject was not properly before the House. He (Mr. Botts,) contended that General Riley himself, by this correspondence, in which he states that his instructións authorize him to make this use of the civil fund, had put the question directly before him, and compelled him to vote upon it. It was said we were not here to
discuss General Riley's action. Such was not the case. If a breach of the Con. stitution is involved in the payment of this money, it properly comes before the House in receiving it. He did not wish to convey any thing disrespectful by the comparison ; but if an individual was to come to him and offer him the use of a hundred dollars which he had stolen, or frauduently obtained, and which fact was known to the receiver, would it be proper to take it? It became this Convention, on the same principle, to consider whether this fund was constitutionally obtained, as in the other case it became him to consider whether the money proffered was honestly gotten. He had taken an oath to abide by the Constitution of the United States, and to defend and adhere to it as a member of this Convention. A direct case of a violation of the Constitution was brought before him in this correspon. dence. Was he not bound by his solemn oath to protest against this fraud upon the people? He would take this money with the greatest pleasure, and say nothing about it, if gentlemen would only show him that it was not a violation of the Constitution. But what were the facts ? The Congress of the United States was directly requested by the President of the United States in July last to take this matter into consideration, and form a government for California. The Congress of the United States solemnly deliberated on this subject, refused to form a govern. ment, and solemnly declared that they would make no appropriation for the support of this Territory. The gentleman from Sacramento (Mr. Sherwood) went into a long discussion to show what would have been the fatal consequences if this money had not been collected as it was, by imposing duties on the foreign cargoes that arrived in the ports of California. He (Mr. Botts) would take Gene. ral Riley's own word for that. It was in the hands of a collecting officer of the Government, and therefore in the Treasury of the United States. It was obtained either legally or illegally ; but it is in the Treasury of the United States, and can. not be paid out without special act of Congress. He was told by the gentleman from San Francisco, (Mr. Gwin,) to quiet his conscience about this matter-to submit to it; that the money was not collected by the authority of the President, or by any authority except that of necessity, and hence it was not in the Treasury of the United States. It was done altogether by the law of necessity. Now he (Mr. Botts) had sworn to support the laws of the United States, not the law of necessity. He had heard enough of that law. It is the tyrant's policy. Take that and the responsibility doctrine, put the two together, and the Constitution of the United States is not worth a cent. He trusted, in conclusion, that it would be the pleasure of gentlemen either to assist him in rejecting the use of this fund, or enlighten him so that he could receive it without violating the oath which he had taken to support the Constitution.
On motion, the House adjourned.
MONDAY, SEPTEMBER 17, 1849.
Prayer by Rev. Mr. Willey.
On motion, the report of the Finance Committee was taken up; the following resolution, submitted by Mr. WOZENCRAFT, being first in order:
Resolved, That the subjects placed before the Committee be so divided that the report be receive ed, and the communication from the Governor be indefinitely postponed.
On motion of Mr. WOZENCRAFT, it was ordered that the vote be taken sepa. rately on the two clauses of the resolution.
The question being taken on the first clause of the resolution, it was decided in the affirmative.
Mr. WoZENCRAFT moved that so much of the report as was included by the clause of his resolution just agreed to, be adopted, with the exception of the per diem allowance to the interpreter, and that that be increased to $28.
Mr. HASTINGS snbmitted the following amendment, as a substitute for Mr. Wo. zencraft's motion:
The per diem pay of the Secretary, Assistant Secretary, Translator, Interpreter, Clerks, and Members, (excepting the President,) be twenty-five dollars ; that of the President and Reporter be fifty dollars ; that of the Sergeant at-arms be twenty dollars ; that of the Doorkeeper, sixteen dol
and that of the Page, four dollars. And the question being on Mr. Hastings amendment, it was decided in the negative.
Mr. SHANNON submitted the following amendment, as a substitute for Mr. Wo. zencraft's proposition :
The per diem allowance, &c., of the officers and members of this Convention shall be as follows: one Secretary, $20 ; one Interpreter, $20 ; two Assistant Secretaries, $18 each ; one En. grossing Clerk, $18; two Copying Clerks, $16 each ; one Sergeant-at-Arms, $16 ; one Doorkeeper, $12 ; one Page, $4 ; one Reporter, $40; one Chaplain, $16; one Interpreting Clerk, $16; forty-three Members, $16 each ; travelling allowance of members, at the rate of $16 for every twenty miles travel.
And the question being on the amendment, it was decided in the negative.
The question recurring on the motion to increase the Interpreter's per diem to $28, it was decided in the affirmative. Mr. Norton moved further to amend by providing that the per
diem allowance of Mr. Howe, in consideration of his performing the duties of Engrossing Clerk, shall be the same as the Assistant Secretaries.
And the question being on the amendment, it was decided in the affirmative.
On motion of Mr. Jones, the per diem of the Reporter was excepted from the report of the Committee, for future consideration.
The question then recurring on the report of the Committee as amended
Mr. SHERWOOD asked the yeas and nays; which being ordered, they resulted as follows:
YEA5-Messrs. Aram, Botts, Brown, Crosby, Dent, De la Guerra, Dominguez, Hill, Hobson, Hastings, Jones, Larkin, Lippett, Moore, McCarver, Ord, Price, Pico, Rodriguez, Reid, Sutter, Snyder, Stearns, Tefft, Vallejo, Wozencraft, President-27.
Nars-Messrs. Dimmick, Ellis, Given, Gilbert, Halleck, Hollingsworth, Lippincott, McDougall, Norton, Sherwood, Shannon, Walker-12.
So the report, as amended, was adopted, and the per diem allowance of the officers of the Convention fixed at the following rates :
Secretary, $28 ; Assistant Secretaries, $23; Engrossing Clerk, $23 ; Sergeant-at-Arms, $22 ; Copying Clerk, $18; Interpreter, $28 ; Interpreter's Clerk, $21; Chaplain, $16; Doorkeeper, $12; Page, $4.
The question then being on the second clause of Mr. Wozencraft's resolution, he modified the same, so as to provide that the consideration of the correspondence, and not the correspondence itself, be "indefinitely postponed."
The question being taken on the second clause of Mr. Wozencraft's resolution, as modified, it was decided in the negative.
Mr. Ellis moved the following, which was decided in the negative :
Resolved, That the consideration of so much of the reports of the majority and minority of the Committee on Finance, as relates to the ways and means of paying the expenses of this Convention, be laid upon the table.
On motion of Mr. Dent, it was—
Resolved, That so much of the report of the Committee, relating to the communications of General Riley, as relates to the ways and means of obtaining the fund for paying expenses, be referred back to the Committee, and the said Committee be instructed to make the necessary arrangements with General Riley for paying the expenses of this Convention ; and also be instructed to report on the proposition of the Reporter, J. Ross Browne, for furnishing printed copies of his reports.
Mr. Borts, at his own request, was excused from further service on the Fi. nance Committee, and Mr. Walker was appointed by the President to fill the vacancy.
On motion of Mr. JONES, the House then resolved itself into Committee of the Whole, Mr. Botts in the Chair, on the report of the Committee on the Constitution.
COMMITTEE OF THE WHOLE.
The 31st Section of the report of the Committee being under consideration, as followss
31. Corporations may be formed under general laws, but shall not be created by special act, ex. cept for municipal purposes, and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws. All general laws and special acts passe] pursuant to this section, may be altered from time to time, or repealed.
Mr. Jones moved to strike out the 31st section, and if in order, the four following, and to insert in lieu thereof, the section 2d of the 9th Article of the Constitu. tion of Iowa, with an amendment, which he would sulmit in writing.
Mr. Gwin said that, inasmuch as he had made a minority report on this subject, he hoped the gentleman (Mr. Jones,) would withdraw his motion, so as to permit him to offer the following amendment. He moved to strike out from the 31st to the 36th sections, inclusive, of the majority report, and insert as follows :
Sec. I. No corporate body shall be created, renewed, or extended, with the privilege of making, issuing, or putting in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. The Legislature of this State shall prohibit by law, any person or persons, association, company, or corporation, from exercising the privileges of banking, or creating paper to circulate as money.
2. Corporations shall not be created in this State by special laws, except for political or municipal purposes ; but the Legislature shall provide, by general laws, for the organization of all other corporations, except corporations with banking privileges, the creation of which is prohibited. The stockholders of every corporation or joint stock association, shall be personally and jointly responsible for all its debts and liabilities of every kind. The State shall not, directly or indireely, become a stockholder in any corporation. All general laws and special acts passed pursuant to this section, may be altered from time to time, or repealed ; and all corporations shall have the right to sue, and shall be subject to be súed, in all courts, in like cases as natural persons.
Mr. SHERWOOD inquired if it was in order to move to strike out five or six sections, when only one was under consideration.
The CHAIR presumed that the whole report was before the Committee, and that it was in order to propose a substitute for several sections, having direct reference to the same subject.
The point of order giving rise to discussion,
Mr. Gwin said he would simply move to strike out the 31st section, and insert the amendment which he had just read. If adopted, the other sections of the re. port would necessarily be stricken out.
Mr. Jones remarked that the first section proposed by the Committee provided that no corporation should be created by special act, unless the Legislature saw fit to create it. He understood that to be the full scope and meaning of the sec. tion. The clause to which he had reference, was in the following words : “Cor. porations may be formed under general laws, but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Le. gislature, the objects of the corporation cannot be attained under general laws." In any case whatever, where, in the opinion of the Legislature, the object cannot be attained under general law, corporations therefore can be granted. Take this clause on its own bottom, and it would allow, and in fact, soon suggest the incorporation of banks. He wished, for that reason, to introduce the discussion of the whole subject at once. He did not think this article could stand upon its bottom. Every member in the House would at once see the absurdity of prohib. iting the Legislature from passing acts of this kind, unless it thought proper to do
He was willing to submit the article to a vote upon that construction ; it car. ried its absurdity upon its face ; but if the debate was to be opened, it was neces. sary to know how far this clause was to be affected by subsequent sections.