Sources of the Constitution The Constitution of 1849 is rather a compilation of parts of the constitutions of the other states than an original document. The members of the convention were well suited by experience for the work of compilation. Thirty-eight of the delegates had been citizens of 21 different states, and the 14 lawyers had been citizens of 11 of the states. The constitutions of all of the states appear to have been used by the convention. On four different occasions the constitutions were referred to collectively and on one occasion Halleck stated that the committee on the Constitution was working "with the constitutions of every state in the Union before it."' 50 Twenty of the state constitutions and the Federal Constitution were mentioned in the debates, some of them several times.51 It is not always possible to determine the exact influence the various constitutions had on the Constitution of California, but most of the sections can be traced back to the constitutions of particular states. In arrangement, the Constitution follows generally the Constitution of Iowa. Sixty-six of the 137 sections of the original Constitution of California appear to have been taken from the Constitution of Iowa, and 19 from the Constitution of New York. It is clear also that sections from the Constitutions of the States of Louisiana, Wisconsin, Michigan, Texas and Mississippi, and of the United States, were adopted. The sources of the other sections of the constitution are not clear. Some sections appear to be modifications of sections from other constitutions and some sections appear to be original.52 The First Constitution The Constitution was divided into 13 parts consisting of 12 articles and a schedule. Article I-The Bill of Rights 54 The first article was a declaration of rights, which provided that all men were free and independent,58 that political power was inherent in the people, guaranteed trial by jury 55 and freedom of religion, that the writ of habeas corpus should not be suspended,57 that excessive bail should not be required,58 guaranteed free speech," the right of free assembly, provided that laws of a general nature should have a uniform 60 50 Browne, Debates, 25, 27, 36, 40, 221. Browne, Debates, 37, 56, 69, 70, 77, 110, 132, 165, 235, 248, 250, 292, 371, 380, 384. 62 For further information on the sources of the Constitution see Goodwin, The Establishment of State Government in California, 230-243. 61 68 operation. It provided that the military power should be subordinate to civil power,62 and that soldiers should not be quartered in private houses in time of peace. It required that representation should be apportioned according to population. No person should be imprisoned for debt, and no bill of indenture, ex post facto law or law impairing operation of contract should be passed." Foreigners who were residents of the State were granted the same right with respect to possession, enjoyment and inheritance of property as citizens.67 Slavery was prohibited.68 Unreasonable searches were forbidden." Treason against the State was defined. It was provided that the enumeration of rights should not be construed to deny others retained by the people.71 Article II-Suffrage The right of suffrage was granted to "every white male citizen of the United States and every white male citizen of Mexico who shall have elected to become a citizen of the United States under the terms of the Treaty of Peace exchanged at Querétaro on the thirtieth day of May, 1848, of the age of 21 years, who shall have been a resident of the United States for six months preceding the election and the county or district for 30 days in which he claims to vote," and the Legislature was authorized by a two-thirds vote to admit Indians or descendants of Indians to the right of suffrage.72 Electors were privileged from arrest, except for treason, felony, breach of peace, during attendance at elections,78 and were not to be required to perform military duty on election day except in time of war or public danger."4 Residence for the purpose of voting was not gained or lost by the presence in or absence from the district while employed by the United States or in commerce, on the high seas, or as students.75 Idiots, insane persons, and persons convicted of crime were not eligible to vote." All elections were to be by ballot." Article III-Distribution of Powers Article III contained the provision concerning separation of powers and was as follows: "The powers of the government of the State of California shall be divided into three separate departments: the legislative, the executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions pertaining to either of the others, except in the cases hereinafter expressly directed or permitted." Article IV-Legislative Department 79 The legislative power of the State was vested in the Senate and Assembly.78 Sessions of the Legislature " and elections of Assemblymen were to be annually.80 Senators were to be elected biennially 81 and were to be divided into two classes as nearly equal as practicable, one-half of whom were to be chosen each year.82 Members were required to be qualified electors of the district from which elected.88 Each house was to choose its own officers and to be judge of the election of its members,84 to determine its own rules,85 and to keep a journal of its proceedings.86 A majority was to constitute a quorum.87 Members were privileged from arrest and civil process except for treason, felony or breach of the peace, from 15 days before the commencement until 15 days after the termination of each session.88 The Governor was to issue writs of election to fill vacancies.89 The sessions were to be public except when in the opinion of the house secrecy was required."0 Neither house was to adjourn for more than three days without the consent of the other.91 Bills might originate in either house and be amended in the other.92 After a bill had been passed by both houses it was to be submitted to the Governor for his approval; if he disapproved of it he should return it with his objections and the bill should be reconsidered and in case it received a two-thirds vote of the members of each house, it should become a law despite the Governor's objection. In case the bill should not be returned within 10 days, Sunday excepted, it should become a law unless the Legislature by adjournment prevented the return. 98 No Member of the Legislature was to be eligible to an office which was created or the salary of which was increased during the time of his service, nor might he hold any lucrative office under the United States.94 The Assembly was given the power of impeachment and impeachments were to be tried by the Senate." The officers subject to impeachment were the Governor, the state administrative officers and justices of the Supreme and district courts.96 Every person convicted of embezzlement 78 Sec. 1. 79 Sec. 2. 83 Secs. 6, 7 83 Sec. 4. 84 Sec. 8. 85 Sec. 10. 86 Sec. 11. 87 Sec. 9. 88 Sec. 12. 89 Sec. 13. 90 Sec. 14. 1 Sec. 15. 93 Sec. 16. 93 Secs. 20, 24. 94 Sec. 21. 95 Sec. 18. was declared to be ineligible to any office of the State.97 Money might be drawn from the Treasury only in consequence of appropriations made by law.98 Every law was required to have but one subject which should be stated in the title and when any section was amended it was required to be re-enacted and published at length.99 The Legislature was denied the right to grant divorces 100 or authorize lotteries.101 A census was required to be taken in 1852, in 1855 and every 10 years thereafter.102 The Legislature was to divide the State into legislative districts 108 but no county should be divided in the making of such districts,104 "Corporations may be formed under the general laws but shall not be created by special act except for municipal purposes." 105 Each stockholder of a corporation was made personally liable for his proportion of its liabilities, 106 and the corporators were to be liable for fees from corportions 107 and joint stock companies.108 The Legislature was required to provide for the organization of cities. 109 In elections by the legislatures the members were required to vote viva voce and the votes were to be entered in the journal.1 Article V-Executive Department 110 The supreme executive power of the State was vested in the Governor, 111 who was to be elected in the same manner as Members of the Assembly, and to hold office for two years.112 To be eligible to the office of Governor, a person was required to be a citizen of the United States, a resident of the State for two years and to be 25 years of age.118 The election returns for the office of Governor were required to be submitted to the Legislature and to be opened and published in the presence of both houses.114 The Governor was made commander in chief of the militia.115 He was directed to transact all executive business 116 and to see that the laws were faithfully executed.117 Whenever a vacancy in a state office occurred where no provision for a succesor had been made the Governor was authorized to fill the vacancy until the next election.118 The Governor was empowered to call special sessions of the Legis lature,119 and directed to present his message on the condition of the State at each session 120 and in case of a disagreement as to the time of adjournment, he might adjourn the Legislature. 121 No person while holding an office of the United States was eligible to act as Governor.1 122 The Governor was authorized to grant reprieves and pardons, a record of which he was required to transmit to the next session of the Legislature. 123 The Great Seal of the State was to be kept by the Governor 124 and all grants and commissions made in the name of the State were to be sealed by such seal.125 The Lieutenant Governor was to be elected in the same manner as the Governor. He was to be President of the Senate and have a vote in case of a tie.126 In case of a vacancy in the office of Governor, the Lieutenant Governor should act as Governor.127 During any vacancy in the office of Governor and Lieutenant Governor the President pro Tempore of the Senate should act as Governor. 128 A Comptroller, a Treasurer, an Attorney General and a Surveyor General were to be elected in the same manner and for the same term as the Governor. 129 The Secretary of State was to be appointed by the Governor with the advice and consent of the Senate. 180 The other executive state officers to act during the first term were to be chosen by the joint vote of the two houses of the Legislature. 181 The executive officers were to receive a regular compensation but were to receive no fees for the performance of their duties.132 Article VI-Judicial Department The judicial power of the State was vested in a Supreme Court, in district courts, county courts and justices' courts.133 The Supreme Court was to consist of a Chief Justice and two associate Justices,134 who were to be elected by the people for six-year 118 Sec. 8. 119 Sec. 9. 120 Sec. 10. 121 Sec. 11. 122 Sec. 12. 127 Sec. 17. 129 Sec. 18. |