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Mr. Gwin. All I have to say in favor of the minority report is, that it is the same precisely as the preambles of the Constitutions of Arkansas, Louisiana, and Florida, territories which were acquired under nearly the same circumstances as California, by treaty or purchase.
Mr. NORTON. I have but a single word to say in behalf of the report of the majority. It was desired by nearly all the members of the Committee, that we should adopt some preamble that would be short and expressive, and at the same time contain every thing that would be absolutely necessary. I do not think my. self that it is necessary in a preamble to refer to the treaty of peace between the United States and Mexico. It should not be in the Constitution any more than any other part of the history of the State of California. Neither do I think we should put in anything in regard to the protection of life, liberty, and the pursuit of happiness-a long rigmarole which everybody knows. They are contained in our declaration of rights. For these reasons the majority of the Committee agreed upon the report which has been presented here ; which I believe expresses all that need be said in a preamble.
Mr. Gwin. The gentleman's opinion may pass for what its weight may be. Three States have adopted the plan which I have presented in becoming members of the Union. The main point with the gentleman is, that the preamble which he presents is from the Constitution of New York.
Mr. NORTON. And a very good one it is, Mr. SHANNON. We are told that the preamble of the majority is from the Con. stitution of New York. In my opinion it is the most butt-ended one that could be found. She commenced under the new Constitution as a State ; we commence as a Territory, and we have no right to assume that we are a State until we are formed as such. I think both propositions are objectionable ; and I offer the following as a substitute :
We, the representatives of the people of the Territory of California, in Convention assembled, at Monterey, on Saturday, the first day of September, A. D. 1849, and of the Independence of the United States the seventy-third, in order to secure to ourselves and our posterity the enjoyments of civil, religious, and political liberty, form a more perfect government, establish justice, ensure do. mestic tranquility, provide for the common defence, and promote the general welfare, do mutually agree to form ourselves into a free and independent State, by the style and title of the “State of California," and do ordain and establish this Constitution for its government.
Mr. Hastings. I cannot see the necessity of a preamble at all. I think it is quite enough to say " the Constitution of the State of California.”
Neither can I see the necessity of inserting in an instrument of this kind a prayer to Almighty God. I shall vote for any preamble that comes the nearest to being no preamble at all.
Mr. NORTON. I must protest against the gentleman from Sacramento, (Mr. Shannon,) calling this a butt.ended proposition. He does not show much rever. ence for the State from which he came. I have seen nothing from any of the States that exceeds this in beauty and simplicity. The other gentleman from Sa. cramento, (Mr. Hastings,) does not seem to think it necessary to be grateful to Almighty God. I hope some of the members of this House perceive that neces. sity. I think it is proper, doing so solemn an, act, that we should make a due re. ference to the Supreme Being. This preamble I consider as appropriate as any that we could adopt. The gentleman (Mr. Shannon) says we have no right to call ourselves the people of the State of California. . The argument will not stand. This Constitution is nothing until ratified by the people ; but from the moment it is ratified we are the State of California.
Mr. McDougal. I hope this House has originality enough about it to form a preamble of its own, without referring to New York, or any other State. I desire io see in this Constitution a few lines at least of our own manufacture.
Mr. McCARVER. The preamble of the gentleman from Monterey (Mr. Botts) suits me better than any I have seen, because it is the shortest. There is no ne. cessity for a long preamble ; neither is it necessary that we should go to the différent States for a model. The very fact that the proposition of the Committee is from the Constitution of New York would induce me to reject it. If we sit here much longer we will have a resolution to annex New York, Constitution and all.
On motion, the Committee then rose and reported progress.
It appearing that a quorum was not present, on motion, the House adjourned till to-morrow at 10 o'clock.
SATURDAY, OCTOBER 6, 1849. In Convention. Prayer by Padre Ramirez. Journal of yesterday read and approved.
On motion of Mr. GWIN, the House resolved itself into Committee of the Whole, Mr. Gilbert in the chair, on só much of the report of the Comasittee on the Constitution, as relates to the Schedule.
Section 1 being under consideration, as follows:
Sec. 1. All rights, prosecutions, claims, and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, until altered or repealed by the Legislature, shall continue as if the same had not been adopted.
Mr. SHANNON moved the transposition of the third and first sections.
Mr. Price moved to strike out the first section. He could see no necessity for it.
Mr. Dimmick thought there was a good deal of necessity for it. It was to provide that the present officers of the Government, prefects, alcaldes and others,
should perform the duties of their offices until their places were taken, under the new Constitution.
Mr. McCARVER did not think we should make laws with any reference whatever to the laws of Mexico. This was a Constitution for our own State. He was opposed to legalising the acts of any officers under the Mexican law.' This Con. vention was not called upon to say whether there any such officers in existence.
Mr. DIMMICK said it was not to meddle with the existing form of government that this section was proposed. When this Constitution was adopted by the people, it would be the supreme law of the land. But under it, as it stands, the pre. sent officers of the Government have no power to act. Consequently, until these officers were susperseded, there would be no government at all, without such a provision. This only recognizes these officers until the Legislature shall meet and provide for the emergency.
Mr. HALLECK said that the first section was copied from the second section of the Schedule of the Constitution of Louisiana. Section 3d was copied with very -slight alteration from the 4th section of the same schedule, (142 and 144, Consti. tution of La.) Both of these sections correspond very closely with the sections on the same subject in the first Constitution of Louisiana when she was in nearly the same situation with respect to former laws as California now is. It was a - matter of great importance that they should be adopted.
Mr. McCARVER said there was a marked difference between our Constitution and that of Louisiana. Louisiana was an organized Territory, and under territo. rial laws from 1803 to 1805. It was therefore necessary that the authority re. cognized by the Government of the United States should continue in existence un. til the State Government went into operation.
Mr. BOTTS. I have no objection to this section myself, except that it lays down just this proposition : two and two are four. It asserts a doctrine, sir, which I have never yet seen the man to controvert—that the municipal laws continue in existence until they are abolished by the competent authority. All rights, prose. cutions, claims, and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this Constitution that it does not repeal, are not repealed. Who, in the name of common sense, doubts that? If the question is upon the truth contained in this section, where can you find a nega. tive vote ? That these laws continue in force if they are not repealed ; in other words, that a man lives till he dies. There is only one of two ways that they can cease to exist; by the enactment of this Constitution, or by the 'enactment of the Legislature.
Mr. Gwin. I think the gentleman from Monterey is entirely mistaken in one respect. There are some rights under the present laws that this Constitution takes away—those of individuals. The right of suffrage is one. It is proper that they should know it. This Constitution declares who shall vote in California. There were other individuals who could vote under the municipal law ; there may be municipal·laws that are in conflict with the Constitution. No possible harm can: result from such a provision. It makes no declaration what the law is. It is de. signed to tell those who have lived under the existing municipal laws, of what rights they are deprived, and what privileges are conferred upon them..
Mr. Borts. If the object of the clause be what the gentleman from San Fran. cisco says, to tell the inhabitants of this country that this Constitution is the law of the land from the time of its adoption, and that those who are excluded from voting are excluded from voting, I think I could form a section that would answer quite as well. Why, sir, the people know all this. It is not necessary to tell them.
Mr. Jones. I would ask the gentleman (Mr. Botts) to reflect and see if, in the recent history of California, he cannot pick out a spot where this principle has been doubted, and even denied. It may not have been so in Monterey. But, sir, I myself, even with my very limited knowledge of the history of this country, can very well see the importance of asserting this great principle in the Constitution which we have adopted. I have heard it doubted ; I have heard it denied; and there is more than one gentleman in this House who has heard it doubted and denied, and perhaps the gentleman himself, (Mr. Botts,) if he reflects, will see the necessity of it.
Mr. PRICE. I cannot perceive that there is any principle contained in this sec. tion at all. It is a mere declaration that this Constitution goes into effect after its ratification by the people.
Mr. Jones. There is a very important principle contained in it; that the mu. nicipal laws heretofore in force in this country, are in force until they are properly repealed. Perhaps the gentleman from San Francisco (Mr. Price) has come from where the principle has been denied.
Mr. STEUART. If this section is to carry with it the interpretation which has been given to it by gentlemen who have addressed the House, that all laws not inconsistent with this Constitution shall continue in force if not repealed, then, sir, I think it comes in conflict with another section following soon after, which makes it depend upon the happening of another contingency-a contingency that may
In the 7th section you make it the duty of the present Executive of this State, immediately after ascertaining that this Constitution has been so rati. fied, to make proclamation of that fact, and thenceforth this Constitution shall be: ordained and established as the Constitution of California. Now, suppose the present Executive of this State does not choose to make this proclamation, what is going to be the result? I want information as to the effect.
Mr. SHERWOOD. If it conflicts the Constitution, it will not be enforced, as a matter of course.
The question was then taken on striking out the 1st section, and decided in the negative.
Mr. Shannon's motion to transpose the 1st and 3d sections, was also decided in the negative.
The section, as reported, was then adopted.
SEC. 2. The Legislature shall provide for the removal of all causes which may be pending when this Constitution goes into effect, to courts created by the same.
Section 3 being under consideration, as follows:
Sec. 3. In order that no inconvenience may result to the public service from the taking effect of this Constitution, no office shall be superceded thereby; but the laws relative to the duties of the officers to be appointed under this Constitution, shall remain in full force.
Mr. Borts. I hardly know what to say about this section. I do not know if there are any officers in this government-if there be any such thing as a govern. ment here at all. If there be any officers I am perfectly willing that they should remain officers, but I have heretofore endeavored to show that, under the decision of the Supreme Court, the political offices created under the Constitution of Mexi. co have been abolished. I shall, perhaps, be compelled to vote against the section simply because I think, under the decision of the Supreme Court, there is no government in California. Most objectionable as the laws are, which define the powers of those officers, if there be such officers, I would rather have them than none at all. That is the alternative ; but remember, sir, one of these laws is this, if I understand it, and one adopted by your judges in your Supreme Court : that the judge who sits upon a case of life and death shall be entitled to receive $100 if he can procure the conviction of the criminal. That is one of the principles under the Mexican law-a principle most odious and repugnant to the feel. ings of an American. I will not refer to others; I do not want now to show how objectionable many of these principles are, but I contend that the whole of them have been blotted out by the change of government, under the decision of the Supreme Court, and of common sense and common castom. There are no offi. cers, and no laws in existence in California that define and determine the duties of officers. Government is what? It is that power which is authorized to make laws. Does any body pretend to say that there exists in California a power to alter, amend, or abolish any laws, other than that of the people themselves ? No, sir, we are expressly told that no such power exists; and yet we are told that a government exists; a government which cannot amend_cannot reform the laws. Who ever heard of such a government? There are no officers, yet I wish there were, objectionable as are their powers. I would rather have them for the short space of time that intervenes, than have none. But I cannot support the doctrine contained in that section. I shall vote against the section, not because I have any objection to these gentlemen performing the functions of officers, if they had the right to do it, but because they have no such right, under the decision of the Supreme Court. We are required in this clause to run in direct opposition to that decision, and declare that the political law of this country has not been changed, and that their duties and powers are those that the political law of Mexico gave them. It is utterly impossible that I can recognize this doctrine.
Mr. SHERWOOD. I think I see the difficulty under which the gentleman labors, but if he looks over the section it will not prove liable to the objection which he
We neither affirm nor deny the existence of any officers; the section says nothing about the legality of the exercise of these offices. Public custom has permitted them to exercise these duties, and the section merely provides that they shall continue to exercise them as before, until the laws are established. I do not think it would be proper in the Constitution either to affirm or interdict the discharge of these duties; but we say that no officer shall be superseded by the going into effect of this Constitution until the Legislature shall have passed laws and elected, or provided for the election, of officers to supersede those that may exist, if any do exist. I think the gentleman should vote for it, and that the ob. jections which he makes to the exercise of the duties by certain officers under the Mexican law would be very well addressed to the Legislature, and would excite that body to speedy action. If $100 is offered to a judge as a bribe, the sooner he is out of office the better. The argument could very appropriately be addressed to the Legislature.
Mr. Jones. Either one of three things must exist : either there are no officers and none will be superseded, or there are certain offices which do legally exist,
and certain others which do not legally exist, and a part will be superseded and a part will not be superseded; or they all legally exist, and none will be super. seded. The article expresses nothing in regard to the legality of the offices. If an office is an office at all by the decision of the Supreme Court it certainly will not be superseded. But if the gentleman (Mr. Botts) will look to the law of nations he will see that this has always been the case. Such was the case in Louisiana ; such when France conquered Italy; and such has been the case in all conquered countries; that there are certain offices which, from the necessity of the case, do exist until other offices are established to supersede them. It is necessary that there should be some administration of laws—some order and government. This usage is established by the law of nations. Now I apprehend that the decision of the Supreme Court of the United States does not extend to all the offices of this territory. There are certain offices which must be retained until other offices are created in their place. They have nothing to do, per seg with the political law of the land. But, sir, the question has been decided by the people of this territory; they have elected by their voice officers to fill certain stations. How could they elect officers to offices which do not exist ? The gen. tleman from Monterey must see that his argument fails here. The law, as it exists, becomes the voice of the people of this territory; they have adopted it as a part of their municipal law. Then if these offices do exist, we, the Convention of the people of this territory, have no right to abolish and deny the will of the people who elected these officers. Upon the very same day that these officers were elected we were elected. The very same voters that elected the Supreme Judges and Alcaldes elected us their representatives. What power have we to deny this right to the people? I say we have none.
Mr. HASTINGS. I am willing to admit that the gentleman from Monterey (Mr. Botts) understands his own position, but I hope he will admit that he is entirely wrong. The officers alluded to here are officers that may be created under municipal law.
Mr. Borts. I admit it.
Mr. HASTINGS. Then it alludes to some officers whose election is authorized by law. But the gentlemen who sustain this question are more out of the way than the gentleman from Monterey. It seems to me that they do not understand what the purport of this section is. It declares, that “in order that no inconveni. ence may result to the public service from the taking effect of this Constitution, no office shall be superseded thereby.”
It expressly states that no office shall be superseded thereby. At the same time, in their argument, they tell you that these offices shall be superseded. The section does not say so; perhaps there is a mistake in the copy. But, Mr. Chair. man, here I think is where the difficulty arises; the section adds: “but the laws relative to the duties of the several officers shall remain in full force until the entering into office of the new officer”—the new officer to be appointed under this Constitution. But is it at all said, either here or in the first part of the section, that any officers shall be superseded. We are superseding officers now of Prefect, Sub-Prefect and Alcalde, yet we declare positively that no officers shall be superseded, but the laws shall remain in full force regulating the duties of these officers. Now either the section is wrong or the gentlemen are wrong. I shall vote against it as it stands.
Mr. STEUART. I agree entirely with the views expressed by my friend from Monterey (Mr. Botts) upon this occasion, as well as upon a former occasion. I shall not attempt to add anything to an argument which has been so ably and fully presented as this. I merely rise to offer an amendment, without which I cannot vote for that section. I move to substitute for the word "office" the word “officer," and to insert afier the word "shall ” the following, "officer appointed by the existing government,” &c.