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Mr. McCARVER. I am in favor of this provision in the Constitution. I have contended in this House, not only upon that subject, but many others, that the Bill of Rights was not the proper place for it. I therefore opposed putting it there, with the view of having it inserted in the body of the Constitution, where it should remain, and where it is a part of the organic law of the State. I believe that no man, who has been either directly or indirectly engaged in the murder of his fellow man, should be permitted to represent a great free people, or enjoy the elective franchise in a civilized country.
The CHAIR reminded the House that any motion to amend the paragraph would take precedence of a motion to strike out. If there were any amendments to be offered, therefore, they must be offered before the vote was taken on striking out.
Mr. Dent. I should be perfectly willing to introduce a clause to this effect : that no man shall be entitled to hold office under the Government, who gives an insult to his fellow man; for where insults are given, duelling is the inevitable result. The proudest names on the roll of American statesmen are proof of this fact. Such men as Hamilton and Clay, and others whom I have named, are men possessed of sufficient credit to back out of fighting, if it was necessary. I
say that under peculiar circumstances a man would be damned in the estima. tion of the public if he did not fight. Who is to reap the disadvantages of refusing these men who have participated in duelling the right to hold office? We are ourselves—the people of the State. The gentleman from San Francisco, (Mr. Gwin,) has declared his surprise that such a motion should emanate from me. Now, sir, I here pledge my honor, that if such a clause is introduced in the Constitution of California, and I should be upon the bench, I shall, to the very best of my ability, carry out that provision of the Constitution. I do not think the gentleman was right in alluding to me in my official capacity. I say there are cir. cumstances which may render a duel necessary. A large man may impose upon a smaller one, in such manner that he can obtain no reparation in law. I have sworn to support the Constitution of the United States, and I find no provision there to sanction the principle of depriving a man of the right of suffrage be. cause he fights a duel. I deem it but just that such a clause should be expunged from the Constitution of this State. Besides it will not prevent the practice. A man who is willing to risk his life when his honor is assailed, will risk all the rights of citizenship under this prohibition. If death, or the prospect of death, has no influence upon him, certainly the prospect of being deprived of the rights to hold office will not.
Mr. STEUART. I regret, very much, sir, that this clause has been introduced at all in the provisions of the Constitution. I need not say that I am always dis. posed to prevent an evil practice, and that I detest most heartily the practice of duelling ; but I would be a hypocrite if I did not say that there are circumstances which compel men to resort to this mode of contest. I deem it entirely useless to attempt to restrain men by mere laws from engaging in duels, as long as they are not restrained by the general feeling of the community. Public opinion must be the restraint, and it is the only effectual restraint. I have always thought that laws of this kind have a baneful tendency—that they only add to the difficulty; but if it should be the determination of the Convention to introduce this provision in the Constitution, I most certainly desire, under the decision of the Chair, that an amendment shall be made to the section. I see no reason why the words “ with any citizen of this State” should be adopted. Why a citizen of this State ? I would move, therefore, that they be stricken out. If he is restrained from raising his arm in defence of his honor against a citizen of this State, I see no reason why he should not be prohibited from wreaking vengeance against a foreigner.
Mr. Gwin. As I was in some degree instrumental in having this section drawn up, I feel bound to defend it. Although I have been often twitted upon this floor as having a great deference for precedents, still I adhere to this : that when we have the deliberate judgment of those who have great experience on any subject, we are bound to pay deference to their opinions ; and I say that there is no State which has had more experience on the subject of duelling than Louisiana. That is the great point of the southern portion of the Union where citizens of all the States assemble, and it was believed that, inasmuch as this Constitution was made for the State of Louisiana, that it should contain this restriction, and after a great deal of discussion and deliberation, this section was inserted. California being a point to which the citizens of all nations will be directed, it is peculiarly desirable that we should have a provision of this kind in our Constitution; and it might materially effect this article, if, in their collisions with the citizens of other countries, they should not be left entirely to the Legislature ; for this does not prohibit the Legislature from making enactments on the subject. Let us confine our operations to the people of California, inasmuch as we are forming the Constitution for them. It is intended to operate upon our own citizens. I am sorry that the gentleman from Monterey (Mr. Dent) should have supposed that my reference to his bringing in this proposition to strike the section out, should be of a personal character. It was a mere matter of taste, in my view, and I thought, as what he says here and what we do here, will go elsewhere, that it would not look so well that a judge of the Supreme Court should be the first to move that a provision prohibiting duelling should be stricken out. I believe he is perfectly honest in his opinions on this subject. And inasmuch as it has been stated that this is a proper subject of legislation, I wish to make this statement: that when it was supposed this legisla. tive restriction would prohibit duelling in Mississippi, we have seen instances where men in high positions have been enabled, by the influence that they could bring to bear upon the Legislature, to relieve themselves from the effects of the law. There is now a gentleman from that State, a Senator in Congress, who, by an act of the Legislature, was relieved from the disability. I want a man when he fights a duel with a citizen of California, or aids or abets in a duel, to be forever prohib. ited from holding office here. When that provision was carried into effect in Mississippi, they all went over to Louisiana ; but whether a citizen of California fights a duel here or elsewhere, he is prohibited from holding office. At this advanced period of the world, it is not necessary to say a word against this remnant of the dark
ages. It is no evidence of bravery, for the greatest cowards engage in it. I say it should be discountenanced and put down"; and I know that law does put it down, for I have seen it. When you insert this provision in your Constitution, the fundamental law of the land, that a mån is branded when he fights a duel, he quits it. In Tennessee, where it was made a penitentiary offence, it was abandon. ed. We have the best evidence that the law has a beneficial influence in sup. pressing this great evil; and I hope the deliberate sense of the House will be in favor of incorporating this section in our Constititution.
Mr. SHANNON. There is certainly no better way of striking at the practice of duelling, than that contained within this section, because it strikes at the very root of the evil. This deprivation of a citizen of all political rights, touches directly that honor which incites him to fight a duel. But my argument against this section has been upon the propriety of introducing it in the Constitution at all. There is now another matter before the House—the amendment of the gentleman from San Francisco, (Mr. Steuart.) I shall vote for that amendment. I think if we adopt such a provision at all, we should make it do full justice to other men-to the citi. zens of other States, who are our common fellow.citizens. Let us not say that the citizens of our sister States can be shot down, can be murdered with impuni. ty, or at least without the guards here imposed upon the citizens of this state.
Mr. MOORE. There is one advantage to be derived from this provision, if you place it in the Constitution. It will at least afford men a prétext for not engaging in duels.
Mr. McCARVER. I do not think it right that the citizens of California should be deprived of all the rights of citizenship, and persons who come within our State should have the right to call out any of our citizens and shoot them down-that
they should have the right to hold 'office, when our own citizens do not possess that right.
Mr. Jones. It appears, Mr. Chairman, that the whole House is in favor of the amendınent, (Mr. Steuart's,) and therefore it would be very useless for me to say any thing against it. But I must add my mite to oppose a proposition which would throw a citizen of this State, hand and foot, at the mercy of any stranger of any nation who. chooses to come among us. I do not want to see them put upon an unequal footing. We are making a Constitution for the advantage of our own citizens, and not for the advantage of foreigners. I do not want foreigners to have the right to insult our citizens with perfect security and impunity ; that we should lose our dearest rights of citizenship, and they lose nothing. They may hereafter become citizens of this State after having, in duels, slain its citizens. There is no prohibition against them. They may sit in our Legislature, and even at the head of our Government. I consider that it would be doing injustice to the citi: zens of this State to establish any such distinction. We should stand upon the same footing with them that they stand upon with us. If they lose no rights or franchise, we should lose none; and I should hesitate long to vote for a proposi. tion that binds us hand and foot.
Mr. WOZENCRAFT. The provision now before the House strikes alone at those yen who aspire to office ; at the same time it leaves the great mass of the citizens the privilege of fighting duels whenever they please. Why should you put. restrictions alone upon men who occupy, or aspire to occupy, certain positions ?
Mr. McDougal. It strikes me that this provision itself puts the matter in all the lights in which it can be viewed. Any citizen of this State, after the adoption of the Constitution shall, if he fight a duel, be deprived from holding any office. It is not clear but that a citizen of this State may fight a duel with a citizen of another State, or of France, or England; or he may go to Washington and fight all the Senators and Representatives, provided they are not citizens of this State ; but if he meets there a citizen of California, they must be friendly. It won't do for them to fight, because if they do they cannot hold office when they get home. A man who commits a crime in this State is to be disfranchized; a man who commits a crime anywhere else is also to be disfranchised. Foreigners may come into this State and fight as many duels as they please among themselves, and with us too, but they may become citizens in twenty-four hours after the duel is fought; and they may occupy the Supreme bench or the gubernatorial chair. But, sir, this thing is carried still further, in another section which follows; the party who has committed the crime is compelled to be a witness against himself, and swear that he has committed the crime. Who ever heard of anything like this? If Louisiana has done it, she has done wrong. It would be a stain upon our Constitution to insert such a provision, when we have declared in another part of the Constitution that no man shall be a witness against himself. Both articles ought to be stricken out, for they are both ridiculous. The Legislature ought to do just what they please about it. No Legislature can make a party a witness against himself; nor can any Legislature pass a law contradicting itself, as this does.
Mr. SHERWOOD. The first article which has been read on the subject of dueling is the one under consideration. The article after that, ompelling a man to take a certain form of oath, is separate and distinct. My own opinion is, that to strike out the words “ with a citizen,” accomplishes the object. It prevents a duel between a person not a citizen and a person who is a citizen of this State ; that is, a citizen of this State is disqualified if he fights with a person not a citizen of the State. It prevents duelling entirely, so far as disqualification to hold office can present it. With that amendment, and without adopting the next section, I think we can cover the whole ground.
Mr. HASTINGS. I pronounce this clause unconstitutional. The article proposed to be introduced produces this effect: The party is tried in the State in
which he fights the duel, and is amenable to the laws; he is acquitted, and returns here to this State, where he is again subjected to punishment without trial. The Constitution provides that no person shall, after acquittal, be tried for the same offence again. Can that individual return here, after having been duly tried and acquitted for this offence in one State, and be disfranchised here without a trial ? The article goes even further; the individual who fights a duel here is not al. lowed a hearing at all he has no trial-he is disfranchised at once. There is no evidence brought to bear upon the case. It is in conflict with the provisions of the Constitution of the United States, and again with the provisions of our own Constitution.
Mr. WOZENCRAFT moved to amend by inserting after the words “ of this State" the words “ who shall have been convicted of fighting such duel.”
Mr. PRICE. I did hope that this question was settled when it came up in the Bill of Rights. It was there objected to, and I regret to see it introduced again. I am clearly of opinion that no clause should be introduced in this Constitution fixing a penalty to an offence. We have here a clause against duelling imposing one of the highest penalties known under our system of Government-disfranchisement, prohibition from holding office. You bring the offender down, sir, to a level with the veries! criminal, whilst the fact of his having fought a duel does not degrade him in the estimation of his fellow-men. I would leave this for your future Legislature. We have not the grave.yard of Louisiana here; we have not yet merited the reproach of being known as a duelling people, and I trust we never will. But it is a stain upon the people of California to engraft upon
this Constitution a prohibition against duelling. It is saying to them that they want this restraint, when they have shown no evidence that they require it. There is an inconsistency in this which I should regret to see our Constitution contain.
Mr. LIPPITT. I am very glad my colleague (Mr. Price) has brought forward these views precisely in the way he has. I do not mean to go into a discussion of the subject, but it is exactly for the reasons stated by the gentleman himself that I shall vote for the section ; and it was for these reasons that the section was introduced. And I presume that, for the same reasons, that a majority of the members of this Convention have made up their minds to vote for it. What does he state ? He says that any citizen who has committed this offence--for I believe there is not a gentleman here who does not admit either directly or indirectly that it is an offence against society and against God
Mr. Moore. I would like to be considered as not in that category.
Mr. LIPPITT. Very good. The gentleman tells you that he does not wish to have any provision made by law punishing as a crime that which does not involve any social degradation. That is precisely why we are called upon to introduce such a provision in our Constitution. It is the reason why ordinary laws passed by the Legislature have not accomplished the object. Owing to these false notions of honor, which have come down to us from barbarous times, the commis. sion of this offence, I am sorry to say, does not involve social degradation ; and as the gentleman observes, one man may in a duel bathe his hands in his brother's blood and still hold up his head as a man--still be considered the same righteous, honorable, just citizen that he has always been. He loses no character by the act; for precisely that reason, owing to the vitiated state of public opinion, the crime of duelling differs from all other offences known to our code, and for that reason we cannot leave it to the Legislature. All other crimes to which a stigma is attached, we can leave to ordinary laws passed by the Legislature; they are sufficient to put a stop to the evil. Why do not constitutions impose certain penalties against murder, or robbery, or any other infamous offence ? Because public opinion stigmatises those offences with infamy, and they are arrested by ordinary laws, which is the object designed to be accomplished.
Mr. Price. It does seem to me that my colleague is misrepresenting his con stituents. He tells them things which must, shall, and will be done ; and he ad. mits in his argument that he is opposing public opinion, and hence he is arguing that we are here to restrict and not to act in accordance with the wishes of our constituents. I contend, sir, that it is our highest duty to carry out public opinion on this and all other subjects.
Mr. LIPPITT. One word with respect to misrepresenting my constituents. I have received no instructions from them to vote against any constitutional provision; and I would only add, that if I had received any such instructions, I should resign my seat in this body before I would carry them out by voting to strike out a clause against duelling.
Mr. SEMPLE. Duelling itself is, so far as I am individually concerned, unconstitutional. My constitution forbids it, and I have resolved never to fight a duel if I can honorably get out of it. A few remarks as to the propriety of such a measure ; In the first place, the penalty here in this clause is the highest punish ment that I know of. Now, I have an instinctive dread of death. I dis. like the idea of dying ; but give me my choice, whether I shall be branded with infamy, prohibited from holding any office from under the Government, from that of governor down to a tax gatherer, and never more have the privilege of chosing at the ballot-box the men who shall preside over me, and I should choose death in preference. The idea of hanging is a little more elevated, but to me more honorable and more to be desired than such a pun. ishment as this. I would dislike very much to fight a duel, because I might be killed. I consider that one of the strongest objections to the practice. To me it is a constitutional objection ; but I think to be shot down, or to be hung, is preferable to disfranchisement. I am opposed to disproportionate punishments. The man who is convicted of the highest crime known to our laws—the murder of his brother-is only hung, nothing more.; barely hung by the neck till he is dead. But for fighting a duel, carrying or sending a challenge, aiding or abetting in any manner-even for knowing that a duel is fought, you inflict a higher punishment than you do
upon the man who has committed murder. I say, Mr. Chairman, that the very object of punishment is to prevent crime. Why wreak vengeance upon a man who has committed a crime, unless it have the effect of preventing it. In all time past, it has been found that an equitable gradation of punishment has had the best tendency to prevent the commission of crime. When Draco made laws, he was called the bloody law.maker. And why? Because even the slightest deviation from right, he maintained, deserved death ; and when he had inflicted death, he could do no more. If Draco had known the privilege of going to the ballot-box--the glorious privilege of exercising the rights of a freeman-he would have made some gradation in hispunishment. He would have made disfranchisement a greater punishment than death. If you em.. body this in your Constitution, it is beyond the reach of the Legislature ; you say to the Legislature and the people of California, we, your representatives in this Convention, have declared that you shall abide by this clausė, and
shall never alter it unless you begin at the foundation and call another Convention.' I am de. cidedly opposed to duelling, Mr. Chairman ; I think it is a wrong mode of settling a difficulty ; but I am opposed, also, to such an inordinate punishment; a punishment so infamous that two generations will not wipe it out. I say, then, pause before you act; reflect upon the stain that you are about to inflict upon your fellow. citizens ; remember that even the crime of treason cannot, under the Constitution, work corruption of blood or forfeiture, except during the life of the person so attainted. I am opposed to both the amendments. The original clause as report." ed is greatly superior to them, but I would like, if it is adopted at all, to have a punishment proportionate to the offence.
Mr. LIPPITT. The gentleman from Sonoma (Mr. Semple) says he is opposed to this provision only for the reason that the punishment proposed is too great for