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And whereas, the said treaty, as amended, has been duly ratified on both parts, and the respective ratifications of the same were exchanged at Querétaro on the thirtieth day of May last, by Ambrose H. Sevier and Nathan Clifford, commissioners on the part of the government of the United States, and by Señor Don Louis de la Rosa, minister of relations of the Mexican Republic, on the part of that government:
Now, therefore, be it known, that I, JAMES K. POLK, president of the United States of America, have caused the said treaty to be made public, to the end that the same and every clause and article thereof may be observed and fulfilled with good faith by the United States and the citizens thereof.
In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
DONE, at the city of Washington, this fourth day of July, one thousand eight hundred and forty-eight, and of the independence of the United States the seventy-third. JAMES K. POLK.
By the President: JAMES BUCHANAN, Secretary of State.
CALLING A CONVENTION TO FORM A STATE CONSTITUTION FOR
CONGRESS having failed, at its recent session, to provide a new government for this country, to replace that which existed on the annexation of California to the United States, the undersigned would call attention to the means which he deems best calculated to avoid the embarrassments of our present position.
The undersigned, in accordance with instructions from the secretary of war, has assumed the administration of civil affairs in California, not as a military governor, but as the executive of the existing civil government. In the absence of a properly appointed civil governor, the commanding officer of the department is, by the laws of California, ex officio civil governor of the country, and the instructions from Washington were based on the provisions of these laws. This subject has been misrepresented, or at least misconceived, and currency given to the impression that the government of the country is still military. Such is not the fact. The military government ended with the war, and what remains is the civil government recognized in the existing laws of California. Although the command of the troops in this department, and the administration of civil affairs in California, are, by the existing laws of the country, and the instructions of the president of the United States, temporarily lodged in the hands of the same individual, they are separate and distinct. No military officer other than the commanding general of the department, exercises any civil authority by virtue of his military commission, and the powers of the commanding general, as ex officio governor, are only such as are defined and recognized in the existing laws. The instructions of the secretary of war make it the duty of all military officers to recognize the existing civil government, and to aid its officers with the military force under their control. Beyond this, any interference is not only uncalled for but strictly forbidden.
The laws of California, not inconsistent with the laws, constitution and treaties of the United States, are still in force, and must continue in force till changed by competent authority. Whatever may be thought of the right of the people to temporarily replace the officers of the existing government by others appointed by a provisional territorial legislature, there can be no question that the existing laws of the country must continue in force till replaced by others made and enacted by competent power. That power, by the treaty of peace, as well as from the nature of the case, is vested in congress. The situation of California, in this respect, is very different from that of Oregon. The latter was without laws, while the former has a system of laws, which, though somewhat defective, and requiring many changes and amendments, must continue in force till repealed by competent legislative power. The situation of California is almost identical with that of Louisiana, and the decisions of the supreme court, in recognizing the validity of the laws which existed in that country previous to its annexation to the United States, where not inconsistent with the constitution and laws of the United States, or repealed by legitimate legislative enactments, furnish us a clear and safe guide in our present situation. It is important that citizens should understand this fact, so as not to endanger their property and involve themselves in useless and expensive litigation, by giving countenance to persons claiming authority which is not given them by law, and by putting faith in laws which can never be recognized by legitimate courts.
As congress has failed to organize a new territorial government, it becomes our imperative duty to take some active measures to provide for the existing wants of the country. This, it is thought, may be best accomplished by putting in full vigor the administration of the laws as they now exist, and completing the organization of the civil government, by the election and appointment of all officers recognized by law; while, at the same time, a convention, in which all parts of the territory are represented, shall meet and frame a state constitution, or a territorial organization, to be submitted to the people for their ratification, and then proposed to congress for its approval. Considerable time will necessarily elapse before any new government can be legitimately organized and put in operation; in the interim, the existing govern ment, if its organization be completed, will be found sufficient for all our temporary wants.
A brief summary of the organization of the present government may not be uninteresting. It consists: 1. Of a governor, appointed by the supreme government: in default of such appointment, the office is temporarily vested in the commanding military officer of the department. The powers and duties of the governor are of a limited character, but fully defined and pointed out by the laws. 2. A secretary, whose duties and powers are also properly defined. 3. A territorial or departmental legislature, with limited powers to pass laws of a local character. 4. A superior court (tribunal superior) of the territory, consisting of four judges and a fiscal. 5. A prefect and sub-prefects for each district, who are charged with the preservation of public order and the execution of the laws; their duties correspond, in a great measure, with those of district marshals and sheriffs. 6. A judge of first instance for each district. This office is by a custom not inconsistent with the laws, vested in the first alcalde of the district. 7. Alcaldes who have concurrent jurisdiction among themselves in the same district, but are subordinate to the higher judicial tribunals. 8. Local justices of the peace. 9. Ayuntamientos, or town councils. The powers and functions of all these officers are fully defined in the laws of this country, and are almost identical with those of the corresponding officers in the Atlantic and western states.
In order to complete this organization with the least possible delay, the undersigned, in virtue of power in him vested, does hereby appoint the first of August next as the day for holding a special election for delegates to a general convention, and for filling the offices of judges of the superior court, prefects and sub-prefects, and all vacancies in the offices of first alcalde (or judge of first instance,) alcaldes, justices of the peace and town councils. The judges of the superior court, and district prefects are by law executive appointments, but being desirous that the wishes of the people should be fully consulted, the governor will appoint such persons as may receive the plurality of votes in their respective districts, provided they are competent and eligible to the office. Each district will therefore elect a prefect and two sub-prefects, and fill the vacancies in the offices of first alcalde (or judge of first instance) and of alcaldes. One judge of the superior court will be elected in the districts of San Diego, Los Angeles and Santa Barbara; one in the districts of San Luis Obispo and Monterey; one in the districts of San José and San Francisco; and one in the districts of Sonoma, Sacramento and San Joaquin. The salaries of the judges of the superior court, the prefects and judges of first instance, are regulated by the governor, but cannot exceed, for the first, four thousand dollars per annum, for the second, two thousand five hundred dollars, and for the third, one thousand five hundred dollars. These salaries will be paid out of the civil fund which has been formed from the proceeds of the customs, provided no instructions to the contrary are received from Washington. The law requires that the judges of the superior court meet within three months after its organization, and form a tariff of fees for the different territorial courts and legal officers, including all alcaldes, justices of the peace, sheriffs, constables, etc.
All local alcaldes, justices of the peace, and members of town councils elected at the special election, will continue in office till the first January, one thousand eight hundred and fifty, when their places will be supplied by the persons who may be elected at the regular annual election which takes place in November, at which time the election of members to the territorial assembly will also be held.
The general convention for forming a state constitution or a plan for territorial government, will consist of thirty-seven delegates, who will meet in Monterey on the first day of September next. These delegates will be chosen as follows:
The district of San Diego will elect two delegates, of Los Angeles four, of Santa Barbara two, of San Luis Obispo two, of Monterey five, of San José five, of San Francisco five, of Sonoma four, of Sacramento four, of San Joaquin four. Should any district think itself entitled to a greater number of delegates than the above named, it may elect supernumeries, who on the organization of the convention, will be admitted or not at the pleasure of that body. The places for holding the election will be as follows: San Diego, San Juan Capistrano, Los Angeles, San Fernando, San Buenaventura, Santa Barbara, Nepoma, San Luis Obispo, Monterey, San Juan Baptiste, Santa Cruz, San José de Guadalupe, San Francisco, San Rafael, Bodega, Sonoma, Benicia; (the places for holding election in the Sacramento and San Joaquin districts, will be hereafter designated.) The local alcaldes and members of the ayuntamientos or town councils, will act as judges and inspectors of elections. In case there should be less than three such judges and inspectors present at each of the places designated on the day of
election, the people will appoint some competent person to fill the vacancies. The polls will be open from ten o'clock, A. M. to four P. M., or until sunset, if the judges deem it necessary. Every free male citizen of the United States and of Upper California, twenty-one years of age, and actually resident in the district where the vote is offered, will be entitled to the right of suffrage. All citizens of Lower California who have been forced to come to this territory on account of having rendered assistance to the American troops during the recent war with Mexico, should also be allowed to vote in the district where they actually reside.
Great care should be taken by the inspectors that votes are received only from bona fide citizens actually resident in the country. These judges and inspectors previous to entering upon the duties of their office, should take an oath faithfully and truly to perform these duties. The returns should state distinctly the number of votes received for each candidate, be signed by the inspectors, sealed, and immediately transmitted to the secretary of state for file in his office.
The following are the limits of the several districts:
1. The district of San Diego is bounded on the south by Lower California, on the west by the sea, on the north by the parallel of latitude including the mission San Juan Capistrano, and on the east by the Colorado River.
2. The district of Los Angeles is bounded on the south by the district of San Diego, on the west by the sea, on the north by the Santa Clara River, and a parallel of latitude running from the head waters of that river to the Colorado.
3. The district of Santa Barbara is bounded on the south by the district of Los Angeles, on the west by the sea, on the north by Santa Inez River, and a parallel of latitude existing from the head waters of that river to the summit of the coast range of mountains.
4. The district of San Luis Obispo is bounded on the south by the district of Santa Barbara, on the west by the sea, on the north by a parallel of latitude including San Miguel, and on the east by the coast range of mountains.
5. The district of Monterey is bounded on the south by the district of San Luis Obispo, and on the north and east by a line running east from New Year's Point to the summit of the Santa Clara range of mountains, thence along the summit of that range to the Arroya de los Leagas, and a parallel of latitude extending to the summit of the coast range, and along that range to the district of San Luis Obispo.
6. The district of San José is bounded on the north by the straits of Carquenas, the bay of San Francisco, the arroya of San Francisquito, and a parallel of latitude to the summit of Santa Clara Mountains, on the west and south by the Santa Clara Mountains, and the district of Monterey, and on the east by the coast range.
7. The district of San Francisco is bounded on the west by the sea, on the south by the districts of San José and Monterey, and on the east and north by the bay of San Francisco, including the islands in that bay.
8. The district of Sonoma includes all the country bounded by the sea, the bays of San Francisco and Suisun, the Sacramento River and Oregon.
9. The district of Sacramento is bounded on the north and west by the Sacramento River, on the east by the Sierra Nevada, and on the south by the Cosumnes River.
10. The district of San Joaquin includes all the country south of the Sacramento district, and lying between the coast range and the Sierra Nevada.
The method here indicated to attain what is desired by all, viz: a more perfect political organization is deemed the most direct and safe that can be adopted, and one fully authorized by law. It is the course advised by the president, and by the secretaries of state and of war of the United States, and is calculated to avoid the innumerable evils which must necessarily result from any attempt at illegal local legislation. It is therefore hoped that it will meet the approbation of the people of California, and that all good citizens will unite in carrying it into execution.
Given at Monterey, California, this third day of June, A. D. one thousand eight hundred and forty-nine.
Official-H. W. HALLECK,
Brevet Capt. and Secretary of State.
Brevet Brig. Gen. U. S. A., and Governor of California.
CONSTITUTION OF CALIFORNIA.
ADOPTED BY THE CONVENTION, OCTOBER 10, 1849; RATIFIED BY THE PEOPLE, NOVEMBER 13, 1849; PROCLAIMED, DECEMBER 20, 1849.
WE, the people of California, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.
DECLARATION OF RIGHTS
SECTION 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.
SEC. 2. All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.
SEC. 3. The right of trial by jury shall be secured to all, and remain inviolate for ever; but a jury trial may be waived by the parties, in all civil cases, in the manner to be prescribed by law. (1)
SEC. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall for ever be allowed in this state; 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.
SEC. 5. The privilege 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.
SEC. 6. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishments be inflicted, nor shall witnesses be unreasonably detained.
SEC. 7. All persons shall be bailable by sufficient sureties; unless for capital offenses, when the proof is evident or the presumption great.
SEC. 8. 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 persons shall be subject to be twice put in jeopardy for the same offense; (2) 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. (3)
SEC. 9. 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 on 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 libelous 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.
SEC. 10. The people shall have the right freely to assemble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances.
SEC. 11. All laws of a general nature shall have a uniform operation. (4)
(1) The legislature cannot delegate the power of waiving jury trial to the courts. Exline e. Smith, 5 Cal. 112. (2) Where defendant was convicted of manslaughter under an indictment for murder, and verdict set aside, he may be again tried under the same indictment. People v. Gilmore, 4 Cal. 376; People v. March, Oct. 1, 1856. (3) The compensation must be made before the citizen can be divested of his rights. San Francisco v. Scott, 4 Cal. 114; McCann v. Sierra County, Jan. T., 1857.
(4) Should, as near as possible, affect persons and property alike. People v. Coleman, 4 Cal. 46.
SEC. 12. The military shall be subordinate to the civil power. No standing army shall be kept up by this 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.
SEC. 13. 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 to be prescribed by law. SEC. 14. Representation shall be apportioned according to population.
SEC. 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud; and no person shall be imprisoned for a militia fine in time of peace.
SEC. 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed.
SEC. 17. Foreigners who are, or may hereafter become, bona fide residents of this state, shall enjoy the same rights, in respect to the possession, enjoyment and inheritance of property, as native born citizens. (1)
SEC. 18. Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state.
SEC. 19. 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 persons and things to be seized.
SEC. 20. 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.
SEC. 21. This enumeration of rights shall not be construed to impair or deny others retained by the people.
RIGHT OF SUFFRAGE.
SECTION 1. 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 treaty of peace exchanged and ratified at Querétaro, on the 30th day of May, 1848, of the age of twenty-one years, who shall have been a resident of the state six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law; provided, that nothing herein contained shall be construed to prevent the legislature, by a two-thirds' concurrent vote, from admitting to the right of suffrage Indians, or the descendants of Indians, in such special cases as such a proportion of the legislative body may deem just and proper. SEC. 2. Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance at such election, going to and returning therefrom,
SEC. 3. No elector shall be obliged to perform militia duty on the day of election, except in time of war or public danger.
SEC. 4. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison.
SEC. 5. No idiot or insane person, or person convicted of any infamous crime, shall be entitled to the privileges of an elector.
SEC. 6. All elections by the people shall be by ballot.
DISTRIBUTION OF POWERS.
SECTION 1. 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 appertaining to either of the others, except in the cases hereinafter expressly directed or permitted.
SECTION 1. The legislative power of this state shall be vested in a senate and assembly, which shall be designated the legislature of the state of California, and the enacting clause of every law shall be as follows: "The people of the state of California, represented in senate and assembly, do enact as follows."
(1) The foreign miners' law is not repugnant to this section. People v. Naglee, 1 Cal. 232, A non-resident alien cannot maintain ejectment. Siemssen v. Bofer, July T. 1856.