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Mr. CARVER moved to amend the amendment, by adding thereto the following: Nor shall the introduction of free negroes, under indentures or otherwise, be allowed.
After debate as to the propriety of a division of the two questions, Mr. CARVER withdrew his amendment.
Mr. Shannon's amendment then being first in order, Mr. HALLECK, after debate in reference to the particular portion of the Constitution which the provision should appear in, moved that “a declaration against the introduction of slavery into California shall be inserted in the bill of rights," Mr. Shannon temporarily with. drawing his amendments to enable Mr. Halleck to make the motion.
The motion of Mr. Halleck was decided in the affirmative.
Mr. ŞHANNON then again submitted his amendment, and after further debate as to the expedienry of submitting the question to the people in a separate article, the proposed section was unanimously adopted.
On motion, the Committee rose, reported progress, and obtained leave to sit again.
Mr. WoZENCRAFT submitted the following, which was considered and adopted : Resolved, That a Committee of three be appointed to receive proposals for the printing of the proceedings of this Convention in Spanish and English, with instructions to receive all bids, and report to the House.
The President appointed, as the Committee under this resolution, Messrs. Wo. zerfcraft, Price, and Hastings.
Mr. Norton, from the Committee appointed to report"a plan or a portion of a plan for a State Constitution,” made a further report in writing, being Article II of the proposed Constitution ; which was read, and on motion referred to the Commit. tee of the Whole.
Mr. Borts submitted a resolution, that when Spanish copies are ordered of any papers before the Convention, the Secretary shall be authorized to contract for the same, as in the case of English copies ordered under a previous resolution.
The President decided that the previous resolution referred to, embraced all ne. cessary authority, and that the Secretary was already fully empowered by that res. olution to contract for Spanish as well as English copies.
On motion, the Convention then adjourned.
TUESDAY, SEPTEMBER 11, 1849. The Convention met pursuant to adjournment. Prayer by the Rev. Mr. Willey Journal read and approved.
Mr. Gwin called for the consideration of his resolution offered yesterday, providing for the appointment of a committee to report the ways and means of defraying the expenses of the State Government which might be adopted by this Convention. À question as to the order of business arose, and it being decided that the resolution was in order,
Mr. Gwin said that his sole object in offering the resolution, was to collect necessary and important information. It was absolutely essential that the House should ascertain how the means of supporting this government after its adoption, are to be obtained. Other means must be provided to pay
than by taxing the people of California. The Government of the United States should bear the expenses of the State government for a number of years after its adop. tion. Fourteen of the thirty States of the Union all the new States, except Texas—have had the benefit of territorial government. The expenditure of public money in sustaining territorial governments has been immense. There never was a Territory, except California, that had not large appropriations to sus. tain it. When Louisiana was purchased from France, the first thing after the ratification of the treaty was a territorial government. The same was the case with Florida, a Territory purchased from Spain under very similar circumstances to this country. Florida had the benefit of twenty-four years territorial govern. ment, during which period she received forty millions of dollars. Mississippi had the benefit of seventeen years ; Alabama nineteen ; Louisiana (which was infinitely more capable of paying the expenses of a government) nine years ; Ten. nessee six ; Kentucky ten ; Ohio three; Indiana sixteen; Illinois, nine with Indiana, and nine as a separate Territory, making eighteen ; Michigan thirty-one ; Missouri eighteen ; Arkansas thirty-five, seventeen years alone, and eighteen in connexion with Louisiana and Missouri ; Iowa eight, and Wisconsin twelve. The object of the resolution is, to report upon these facts, and if the statistics can be ob. tained here to ascertain how much has been paid out of the public treasury, to sustain these Territories, and to show that the Congress of the United States is bound to appropriate, out of the tax collected here, sufficient to support this State government, until other means can be obtained, without imposing onerous burdens upon the people. It is not intended that the resolution should, in any way, direct or control the future action of the House. The means of sustaining this government must be procured; and it is desirable, that all the information necessary to be had on the subject, should be obtained at the earliest practicable period.
Mr. HALLECK moved to amend the resolution, by striking out after the word " report,” the words "a plan to defray the expenses," and to substitute therefor the words on the ways and means of defraying the expenses.":
The amendment was accepted by Mr. Gwin, and the resolution adopted.
The President appointed as said Committee, Messrs. Gwin, Hobson, and Stearns.
On motion of Mr. Gwin, the Convention resolved itself into Committee of the Whole, Mr. Lippitt in the Chair.
Mr. HASTINGS moved the following as an additional section : As the true design of all punishment is to reform and not to exterminate mankind, death shall never be inflicted as punishment for crime in this State.
Mr. HASTINGS. I do not know, sir, what favor this question may meet with here-whether it will have a single supporter but myself. It has, however, found many supporters at home, in the United States; I believe, in every State of the Union. And, sir, the time is fast approaching when this great principle will be engrafted into the laws of all the different States. My opinion is, that this new State should adopt it, and that it should be incorporated in the bill of rights. It is evident to my mind that we have not the right to take human life. I arrive at this conclusion from these premises : First, we have no rights, as a Government, other than those derived from the people themselves. If it be true, then, that the people have not that right, they cannot transfer it. What, as individuals of the community, they do not possess, they cannot transfer to the Government. No indi. vidual, sir, has the right to take human life, unless in self-defence. We acknow. ledge this as a starting point. It is conceded as a general principle. If an individual is assailed by an enemy, and his life endangered, he slays his assailant. He is acquitted by the laws; he is justified by the community. But if he take the life of a fellow.man without such provocation, he cannot be pursued by his fellow-man, and, in cold blood, slain. No individual possesses this right, and hence no individual can transfer the right to a Government. Life is taken ; the party is arraigned long after the act is committed. The Government, in cold blood, pursues, arrests, and murders the criminal. Why can the Government, the repre. sentative of individuals, do this, when the individuals themselves cannot do it ?when it is admitted that no right can be delegated by individuals which they do not possess ?
But, sir, I will not detain the House. I merely wish an expression of opinion on the subject, and I hope the article will be adopted. Perhaps I am hoping against hope ; yet I must say, that in practice, as well as in theory, the principle of taking human life, as a punishment for crime, is wrong. Our books are full of instances of innocent persons being executed, who are charged with the crime of murder, and, eventually, it is ascertained, entirely to the satisfaction of the law,
that the party executed was innocent. What remedy has the Government ? What remedy has he? He is dead. This occurs to me as a very forcible argument why this system of punishment should never be introduced into any civilized com. munity. Numerous instances might be given, but I take these general grounds as sufficient for my present purpose, which is to show that the principle is wrong. It will be asked, what substitute I propose ? What are we to do with our crimi. nals? What are we to do with murderers, the highest grade of criminals? Sir, imprison them for life. Let them reform. Do not exterminate your fellow-men; reform them. It is asked, where are your prisons ? I maintain that the absence of prisons does not make the principle right. It is our business to make these prisons. We shall soon have facilities for accomplishing this object.
Then we can carry into practice that which I propose. Until then, we may be subject to some inconvenience. But is it not better that we should be subject to a temporary inconvenience, than to a permanent evil ?
Some would argue, undoubtedly, that the great object of punishment is to deterto prevent the commission of crime. That is true; it is one great object; but a greater one, or at least as great, is to reform. These are the two great objects to prevent the commission of crime, and to reform the criminal. The latter ob: ject is defeated if death be inflicted as a punishment. It may be argued that the infliction of death would deter to a greater extent, from the commission of crime, than imprisonment during life. Sir, I do not conceive this to be the case. Let every man put it to his own heart, and view the subject for himself, and should he ever be so unfortunate as to be convicted of murder, whether innocent or guilty, (for he may be convicted, although innocent,) I venture to say he would greatly prefer the punishment of death to imprisonment during life. I hope this article may be incorporated in the bill of rights. With these remarks, I submit it to the House.
Mr. McCARVER seconded the resolution, not because he believed the House would adopt it, or that it could be adopted here, but because he considered the question entitled to a fair consideration. If the gentleman (Mr. Hastings) would devise a plan by which criminals could be properly punished in this country, he would go with him ; but as California is situated at present, it is imprác. ticable. The construction of penitentiaries would be enormously burdensome. In Iowa, prisons were built, but the State could not defray the expense, and was obliged to set the prisoners at liberty. As to the right to take human life, it is very questionable whether we have that right; but as it has been a practice ever since the world was created, perhaps it would be as well to let it rest awhile longer. It may be that it is a good old principle established by the experience of ages. He would vote against the resolution, not because he was opposed to it, but because he considered it impracticable to accomplish the object under existing circumstances.
The question was then taken on the proposed section, and it was rejected.
Sec. 16. That perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed ; nor shall any hereditary emoluments, privileges, or honors, ever be conferred in this State.
Mr. SEMPLE could not permit the proposed section to pass without a few re* marks. It involves a question of great importance the equal rights of mankind. It should be in the Constitution. Morfopolies should be prohibited. No class of men should continue from generation to generation, to enjoy privileges given to them by the Legislature, which are not conferred under general law. The principle of monopolies includes banking privileges. The Legislature should have no power to grant charters or privileges to certain men to the exclusion of others. He was opposed to the banking system, as not only contrary to repuḥlican principles, but injurious to the people.
Mr. HALLECK thought the subject properly came in another part of the Consti. tution.
Mr. Jones considered the proposed section one of much importance. It con. tains a declaration of great general principles, and involves great consequences. A provision prohibiting banking or other incorporations would come very well under the general provisions. But a declaration of the genius of a Republic in relation to those equal rights which we claim for all citizens, would come more appropriately in the bill of rights. A declaration of principle may be either posi. tive or negative. · There have been introduced into this bill of rights many negative declarations; but this is a great positive principle that no man shall have any rights which are not possessed by the citizens generally.
The question was then taken on the proposed section, and it was rejected.
Mr. McCARVER moved to amend by saying, “ provided they are not concealed arms.”
He did not think, however, that this was a proper subject for the Constitution. No attempt should be made to prevent the Legislature from regulating matters of this kind.
Mr. SHERWOOD was of the same opinion. To make a positive declaration that a man has not this right would be null and void, inasmuch as it would be in oppo. sition to the Constitution of the United States, which provides that “a well regu. lated militia, being necessary to the security of a free State, the right of the peo. ple to keep and bear arms, shall not be infringed.”
Mr. Borts was surprised that the gentleman from New York (Mr. Sherwood) should object to any provision here, because it was contained in the Constitution of the United States. After taking half-a-dozen provisions from that Constitution, word for word, such an objection came with rather a bad grace. He (Mr. Botts) would himself prefer having this provision under the legislative head. A bill of rights is a general declaration ; the Constitution is a specific declaration. It is an admitted rule of construction that the bill of rights, or preamble, is of inferior force, and succombs to the Constitution. If there be in the Constitution à clause which conflicts with the bill of rights, the latter falls to the ground. He (Mr. Botts) desired to see all great principles involving the rights of citizens brought into direct operation in the body of the Constitution. He saw no necessity for mere declarations which could have no force or effect. For this reason he had voted against the subject of monopolies; and for the same reason he would vote against this.
Mr. SHERWOOD was not aware of having voted in the bill of rights for any pro. vision which was directly secured to the people of California by the Constitution of the United States. But if he had done so, it was with the good example before him of the gentleman from Monterey, who had voted for a provision in regard to the law of attainder. That provision he would find in the Constitution under the limitation of the powers of Congress. It was introduced here to limit the powers of the Legislature. But Mr. Ord's proposition directly touches the rights of every citizen.
The question was then taken, and both the amendment, and amendment to the amendment, were rejected.
Mr. Ord submitted the following amendment as an additional section. Sec. 17. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated ; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the papers and things to be seized.
Mr. Jones moved to amend the latter part of the amendment by inserting "persons" instead of "papers,” so as to read, " and the persons and things to be seized.”
Mr. Hastings presumed it was a mere clerical error. Papers and things would just amount to things and things."
Mr. Ord accepted the amendment.
Mr. Gwin said this section, as amended, was word for word from the Consti. tution of the United States, 4th article.
Mr. McCARVER objected to it in the bill of rights. He thought it properly be. longed to another part of the Constitution.
The question was then taken on the proposed amenument, and it was adopted, Mr. Ord offered the following as an additional section :
Sec. 18. Treason against the State shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason, unless on the evidence of two witnesses to the same overt act, or confession in open court.
Mr. Borts proposed to strike out the latter clause, commencing “No person shall be convicted of treason,” &c. He thought treason should stand on the same footing with any other crime, and should be proved to the satisfaction of a jury. It is well known, and is often the case, that circumstantial evidence is the strongest in the world. It was said by one of the ablest jurists, that it is that kind of evidence which cannot lie. By this clause two witnesses are required to prove
the overt act, when it can be proved without any. It is a provision which might often prevent crime from being punished. Besides, if you do not punish a man except upon the evidence of two witnesses, for treason, why will you permit him to go lo the gallows for murder, except upon that evidence ? The principle is either true or false.
If you adopt it in one case, why not adopt it in all ?" Yet is there a member of this House who would be in favor of saying no crime shall be punished except upon the evidence of two witnesses ? It is a strong incentive to crime 10 say in this Constitution, that treason, the greatest of crimes, shall have this advan. tage over all others; and that the prisoner may go scot free, unless this provision is complied with. He (Mr. Botts) would read a sentence from Blackstone in re. lation to the punishment of high treason.-[See Blackstone on high treason.]
Mr. Gwin considered the Constitution of the United States better authority than Blackstone.
The question was then taken on the amendment of Mr. Botts, to strike out the latter clause, and decided in the negative.
The original amendment was then adopted.
Mr. McCARVER had an amendment which he desired to offer as an additional section. It was in the following words :
Sec. 19. The Legislature shall, at its first session, pass such laws as will effectually prohibi free persons of color from immigrating to and settling in this State, and to effectually prevent the owners of slaves from bringing them into this State for the purpose of setting them free.
He deemed this necessary because the House had already made a provision prohibiting the introduction of slavery, the object of which he thought would be defeated by a system already in practice. He had heard of gentlemen having sent to the States for their negroes, to bring them here, on condition that they should serve for a specified length of time. He was informed that many had been libe. rated with this understanding. After serving a few years, they were to be set loose on the community. He protested against this. If the people of this Ter. ritory are to be free against the curse of slavery, let them also be free from the herds of slaves who are to be set at liberty within its borders. He wished to have the sense of the House on this question. If the subject was neglected now, it would soon be necessary to alter the Constitution. In Illinois, this question was laid before the people in a separate article, and a majority of twenty thousand of the voters of that State supported it. Have we not greater reason to fear the in. troduction of free negroes here, than they had in Illinois ? The slave owner, pos. sessed of a hundred negroes, can well afford to liberate them, if they engage to serve him for three years. Mhat is to support them after that ? Are they to be thrown upon the community? He believed that if any State in the Union re. quired protection from this class of people, it was California. It is the duty of gentlemen to make provision in this Constitution against the introduction of negro labor, as well as prohibit the introduction of slavery.