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By adopting this as a standard, one committee could be appointed, which could accomplish all the work. He was opposed to a number of Committees. He con. sidered one sufficient, and he would prefer a small one. But if gentlemen insisted upon having all the intelligence of the House concentrated in that Com. mittee, he would not object to two members from each district, although he thought a smaller number would accomplish the work sooner. He was in favor of Mr. Gilbert's proposition.
The question was then taken on Mr. Price's amendment, and it was rejected. The question then recurring on Mr. Gilbert's amendment
Mr. Ĝwin rose to a question of order, whether his resolution and that of Mr. Gilbert were not precisely the same in effect.
Mr. GILBERT explained that the Committee proposed by him might report from time to time such articles or sections of a plan as might be passed upon in Com. mittee.
Mr. Gwin asked if his was not precisely the same in effect—to report the plan, or any portion of the plan of a State Constitution. He made it a question of order.
The CAAIR decided that where two resolutions were the same in substance and effect, the amendment could not be properly considered as before the House. It was the opinion of the chair that these two propositions did not vary in effect.
Mr. GILBERT appealed from the decision of the Chair. Mr. HALLECK asked if an appeal could be debated. The CHAIR decided in the negative. Mr. Gilbert called for the yeas and nays on the appeal, which was ordered. Yeas–Messrs. Aram, Carillo, Cabarruvias, Crosby, Dimmick, Dominguez, Ellis, Foster, Gwin, Hoppe, Hobson, Hastings, Jones, La Guerra, Larkin, Lippitt, Moore, McCarver, Ord, Price, Pico, Rodriguez, Reid, Sutter, Snyder, Shannon, Sherwood, Stearns, Vallejo, Woozencraft-30. Nays-Messrs. Gilbert, Halleck, Hollingsworth, Lippincott, Norton, and Teft-6. The question then recurring on Mr. Gwin's resolution, it was adopted. On motion, the blank was filled with the word two.. Mr. SHANNON offered the following resolution : Resolved, That a Select Committee of five members be appointed by the President to frame and report to this House,. at as early a period as practicable, the necessary rules for its government.
On motion of Mr. Gwin, the House took a recess of half an hour to allow the Chair an opportunity of appointing the Standing Committee.
AFTERNOON- SESSION, 1 O'CLOCK, P. M. The Convention re-assembled pursuant to adjournment.
The President announced the following as the Standing Committee on the Con. stitution :
Messrs. Gwin and Norton, af San Francisco ; Hill and Pedrorena, of San Diego ; Foster and Carrillo, of Los Angelos ; De La Guerra and Roderiguez, of Santa Barbara ; Tefit and Cabarruvias, of San Luis Obispo ; Dent and Halleck, of Monterey ; Dimmick and Hoppe, of San Jose ; Vallejo and, Walker, of Sonoma ; Snyder and Sherwood, of Sacramento ; Lippencott and Moore, of San Joaquin.
Committee on Rules and Regulations.-Messrs. Shannon of Sacramento, Butts of Monterey, Price of San Francisco, Jones of San Joaquin, and McCarver of Sacramento.
Mr. Gwin moved that the Secretary of the Convention have power to employ a clerk or clerks, if such are necessary, and to report to the Convention the name or names of the person or persons he proposes to appoint, for its approval. Adopted.
On motion of Mr. PRICE,
Resolved, That the Committee to frame a Constitution is hereby authorized to employ such number of Clerks as may be necessary, and that the Committee are instructed to bring in a copy of their report for each member of the House.
Mr. PRICE offered the following resolution :
Resolved, That the President appoint a committee of three to wait on Gov. Riley, and inform him that the Convention is fully organized and ready to receive any communication from him that he may be pleased to make.
Mr. Gwin objected, and the resolution was laid over.
On motion, the hour of the assembling of the Convention was fixed at 10 A. M. until otherwise ordered.
'The Convention then adjourned.
FRIDAY, SEPTEMBER 7, 1849. The Convention met pursuant to adjournment. Prayer by the Rev. Padre Ramirez.
Mr. E. Brown, from the District of San Jose, appeared, was sworn, and took his
Mr. Borts offered the following resolution. He thought it proper that the offi. cers of this Convention should know precisely upon what they were to depend :
Resolved, That a committee of fivè be appointed to inquire and report to this body the proper mode of providing for the payment of the expenses of this Convention, and that they report the proper per diem, or other allowance, to be made to the officers in the employment of this House.
Messrs. Botts, Halleck, Vallejo, Brown, and Price, were appointed by the Pre. sident as such committee.
Mr. Norton, on behalf of the Committee on the Constitution, begged leave to state that the Committee had had the subject under consideration, and during the brief time allowed it, had not been able to prepare any written report. There had been, in Committee, a great degree of unanimity on the adoption of the first portion of a Constitution ; and it was prepared to report this morning, verbally, if the House desired it, a bill of rights. The Committee were of opinion that the preamble should be postponed until after the form of a Constitution had been agreed upon.
Mr. HASTINGS moved that the Committee be permitted to report, when one copy of their report was ready. Adopted.
Mr. Norton, the Chairman of the Committee, then reported as follows : The Select Committee appointed to report a plan, or any portion of " a plan of a State Constitution,” having had the same under consideration, respectfully report the following proposed articles :
Declaration of Rights. I. No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.
II. The right of trial by jury shall be secured to all, and remain inviolate forever. But a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.
III. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.
IV. The privileges of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.
V. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained.
VI. No person shall be held to answer for a capital, or otherwise infamous crime, (except in cases of impeachment, and in cases of militia, when in actual service ; and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace; and in cases of petit larceny, under the regulation of the Legislature,) unless on presentment, or indictment of a grand jury; and in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions.
No person shall be subject to be twice put in jeopardy for the same offence, nor shall he be compelled, in any criminal case, to be a witness against himself ; nor be deprived of life, liberty, or
property without due process of law; nor shall private property be taken for public use without just compensation.
VII. When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a Court of Record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceedings, shall be paid by the person to be benefitted.
VIII. Every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellious is true, and was published with good motives, and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact.
ix. No law shall be passed, abridging the right of the people peaceably to assemble and to petition the government, or any department thereof ; nor shall any divorce be granted, otherwise than by due judicial proceedings ; nor shall any lottery hereafter be authorized, or any sale of lottery tickets allowed within this State.
X. Any citizen of this Stat who may hereafter be engaged, either directly or indirectly, in a duel, either as principal or accessory before the fact, shall forever be disqualified from holding any office under the Constitution and laws of this state.
XI. All laws of a general nature shall have a uniform operation
XII. The military shall be subordinate to the civil power. No standing army shall be kept up by the State in time of peace, and in time of war no appropriation for a standing army shall be for a longer time than two years.
XIII. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, except in the manner prescribed by law. Po XIV. No person shall be imprisoned for debt, in any civil action in mesne, or final process, unless in cases of fraud ; and no person shall be imprisoned for a militia fine in time of peace.
XV. Foreigners, who are, or who may hereafter become, residents of this state, shall enjoy the same rights in respect to the possession, enjoy ment, and descent of property, as native born citizens.
XVI. This enumeration of rights shall not be construed to impair or deny others, retained by the people. By order of the Committee.
MYRON NORTON, Chairman. Mr. Gwin offered the following resolution :
Resolved, That this House resolve itself into a Committee of the Whole House, at half-past 12 o'clock this day, to take under consideration the report of the Select Committee appointed to report a Constitution, or any part thereof; and that the Secretary and Assistant Secretaries be required to prepare copies of said report for the use of the members.
With regard to this resolution, Mr. Gwin would merely state that the first eight sections of the report submitted by the chairman of the Select Committee, were from the Constitution of New York; all the others were from the Constitution of Iowa. There were several manuscript copies of the first part, and printed copies of the last, which would enable the Convention to proceed to business at the hour designated.
Mr. HALLECK stated that the committee did not consider this article (the de. claration of rights) complete ; but they had agreed upon it in a spirit of compro. mise, and with a determination to go forward with the work this morning. If other members united with the committee in this effort, he thought the object could be accomplished.
Mr. ORD moved to amend Mr. Gwin's resolution by laying the report on the table, and making it the special order of the day for Monday, at 10 o'clock, A. M. Rejected.
Mr. Joxes suggested that a portion of the House did not understand the language of this bill of rights. They required time to have it translated. Besides, it was desirable that the House should have time to examine other Constitutions.
Mr. Gwin stated that a translation had already been made.
Mr. Borts was not, for his part, prepared to cast any vote that this impor. tant committee should dictate to him. He found, this morning, that the whole power of making this Constitution was consigned to the hands of twenty mem. bers; the rest were completely emasculated. No doubt there would be great unanimity here, as there was in committee. They bring in a Constitution which they voted for in committee. As a matter of course they will vote for it again. What object is there, then, in sitting here? Simply to form a quorụm to enable the great committee to make a Constitution. The people of California have sent some forty members here for that purpose, but sixteen or seventeen of them, who are present, are disfranchised. They are to have no part or voice in the forma. tion of this Constitution. Where are the eloquent champions of the rights of San Joaquin and of Sacramento?
Mr. SHERWOOD remarked that this Committee, although composed of twenty members, did not assume to make a Constitution. No such power was delegated to them. In conformity with the resolution under which they were appointed, they merely discharged the onerous duty imposed upon them of reporting to the Conven. tion what they deemed to be the best plan of a government for California. The gentleman from Monterey is one of the members to decide whether the results of the labors of this Committee are worthy to be laid before the people for their sanc. tion. It is for the purpose of giving work to the Convention, that this material is reported by the Committee.
Mr. Gwin then withdrew his resolution and substituted the following in its place:
Resolved, That the report of the Select Committee be referred to the Committee of the whole House, and be made the special order for to morrow, at 10 o'clock.
Mr. SHERWOOD moved to amend Mr. Gwin's resolution, by providing that the House resolve itself immediately into a Committee of the Whole, to take into con. sideration the reported Bill of Rights.
After debate, the amendment was withdrawn.
The question upon the adoption of Mr. Gwin's resolution was then put to the Convention, and carried.
The President then stated that the Secretary had submitted to him for the ap. proval of the Convention, the names of Messrs. J. F. Howe, John E. Durivage, and J. S. Robb,'as Clerks.
The President submitted a communication from J. Ross Browne, Reporter to the Convention, which was referred to the Committee on Reporting,
On their own application, Messrs. Halleck and Vallejo were excused from the Committee of five on Expenses of the Convention, and Messrs. Crosby and Larkin were substituted.
On motion of Mr. SHERWOOD, the Convention adjourned.
SATURDAY, SEPTEMBER 8, 1849. Convention met pursuant to adjournment. Prayer by the Rev. Mr. Willey,
On motion of Mr. Gwin, the daily calling of the roll of members was dispensed with, until otherwise ordered by the Convention.
On motion of Mr. SHANNON, Mr. McDougal, a member from Sacramento, and on motion of Mr. VALLEJO, Mr. Walker, a member from Sonoma, were sworn by the President to support the Constitution of the United States, and took their seats as members of the Convention.
The Journal of yesterday was read, amended on motion of Mr. Botts, and then approved.
Mr. Borts submitted the following resolutions :
Resolved, That a “Bill of Rights,” if appended to a Constitution at all, should only be declaratory of general fundamental principles.
Resolved, That the object of a Constitution is to organize a government, prescribing the nature and extent of the powers of the several departments thereof, and that to engraft any legislative enactment on a Constitution, is anti-republican, and contrary to the character and genius of such an institution.
If he (Mr. Botts) understood the origin of a bill rights, it was this. When the colonies, which now compose a portion of the United States of America, felt themselves aggrieved by the arbitrary action of the British Government, they started questions that were then new in the world, with regard to the great rights of mankind. They promulgated these important truths in the form of a declaration of rights, embodying the principles which they avowed. The object of the Constitution was to sustain those rights. Their design was to lay down a great, broad principle of human government. The first, or general declaration, is called a bill of rights; and the second, embracing a special system of government, is known by the term Constitution. It is the true meaning of these two terms that this Convention should recognise. Perhaps it is altogether unnecessary that we should refer to these general principles of government here. Do not forget them. Cherish them as you would your heart's blood; but why append them to this Con. stitution ? If it is the wish of the House, there is no objection to promulgating them still further, and giving them the sanction of this Convention, but let the bill of rights be kept to its legitimate object. The proposed bill is objectionable. It embraces legislative enactments. The crime of duelling, for instance, is taken up, and, instead of a general declaration that duelling is an evil and ought to be prohibited, leaving it to the people to prohibit it in such manner as they may deem proper, we undertake to prescribe the mode for them. They do not require us to perform this duty. We are sent here to prepare for them a system by which they can enact laws for themselves. No civilized people pretend to pass laws without at least making them run the gauntlet of two Houses, differently constituted—often requiring them to pass through the final revision of a single indi. vidual, called a President or Governor. When a Convention assumes to pass laws and impose them upon the people, it constitutes itself an oligarchy. If you take notice of one species of crime, can you neglect another? Do you not usurp the power of designating crime? Where will be the end ? If you undertake to prohibit duelling, will you have no reference to gambling? Or, if you entertain these two minor evils, will you omit the great crime of murder ? You go, then, through all the evils of society. If you entertain crime, will you not entertain the subject of usury ? Gentlemen may refer to Constitutions without number, adopted in the United States, with these very features engrafted on them, but that is no reason why we should adopt the faults of others. We should rather profit by their experience. By the adoption of this resolution, instructing the committee to confine itself to the legitimate object for which it was appointed, some hopes may be entertained of progressing with the business of the Convention ; but if we undertake to enact laws on all subjects, it will be impossible to get through in less than four months.
Mr. Sherwood called for the special order of the day; and, after debate, it was decided by the Chair that the special order was the first business before the Con. vention.
Mr. Borts moved a reference of his resolution to the Committee of the Whole. The motion was decided in the negative.
COMMITTEE OF THE WHOLE.
On motion of Mr. Gwin, the Convention resolved itself into Committee of the Whole, Mr. Lippett in the chair, and took up the special order of the day, being the “Declaration of Rights,” yesterday reported by the Select Committee appointed to report a plan or part of a plan of a State Constitution.”
Mr. Shannon moved the following as the first and second sections of the bill of rights:
Sec. 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.