Umpire. with the approbation and consent of the senate. The said commissioners, thus appointed, shall, in the presence of each other, take an oath to examine and decide impartially the claims submitted to them, and which may lawfully be considered, according to the proofs which shall be presented, the principles of right and justice, the law of nations, and the treaties between the two republics. ARTICLE V. 79. All claims of citizens of the United States against the government of the Mexican Republic, which were considered by the commissioners, and referred to the umpire appointed under the convention of the eleventh April, 1839, and which were not decided by him, shall be referred to, and decided by, the umpire to be appointed, as provided by this convention, on the points submitted to the umpire under the late convention, and his decision shall be final and conclusive. It is also agreed that, if the respective commissioners shall deem it expedient, they may submit to the said arbiter new arguments upon the said claims. Character of General Riley's administration. Mexican laws in force. Proclamation to the People of California. I. PROCLAMATION, CALLING A CONVENTION TO FORM A STATE CONSTITUTION FOR CALIFORNIA. 80. 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 until 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. Convention. As congress has failed to organize a new territorial government, it becomes our im- Administration perative duty to take some active measures to provide for the existing wants of the of laws. 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 government, 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 uninter- Character of esting. It consists: 1. Of a governor, appointed by the supreme government in de- presentgovfault 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 power 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 offices in the Atlantic and western states. In order to complete this organization with the least possible delay, the undersigned, Elections. 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 salaries and fees. 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 jadges 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 pecial 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 Installation of officers. Delegates to Number of delegates. Places for holding elections. Officers of elections. Right of suffrage. Duties of election officers. Limits of districts. elected at the regular annual election, which takes place in November, at the election of members to the territorial assembly will also be held. The general convention for forming a state constitution or a plan for terri ernment, will consist of thirty-seven delegates, who will meet in Monterey day of September next. These delegates will be chosen as follows: The district of San Diego will elect two delegates, of Los Angeles four Barbara two, of San Luis Obispo two, of Monterey five, of San José five, of cisco five, of Sonoma four, of Sacramento four, of San Joaquin four. Should trict think itself entitled to a greater number of delegates than the above may elect supernumeraries, who, on the organization of the convention, w mitted or not at the pleasure of that body. The places for holding the election will be as follows: San Diego, San Ju trano, Los Angeles, San Fernando, San Buenaventura, Santa Barbara, Nep Luis Obispo, Monterey, San Juan Baptiste, Santa Cruz, San José de Guada Francisco, San Rafael, Bodega, Sonoma, Benicia (the places for holding e the Sacramento and San Joaquin districts will be hereafter designated). alcaldes and members of the ayuntamientos or town councils, will act as j inspectors of elections. In case there should be less than three such judge spectors present at each of the places designated on the day of election, the p appoint some competent person to fill the vacancies. The poles will be open 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, tw years of age, and actually resident in the district where the vote is offered entitled to the right of suffrage. All citizens of Lower California who have be to come to this territory on account of having rendered assistance to the troops during the recent war with Mexico, should also be allowed to vote in trict where they actually reside. Great care should be taken by the inspectors that votes are received only fr fide citizens actually resident in the country. These judges and inspectors, pr entering upon the duties of their office, should take an oath faithfully and trul form these duties. The returns should state distinctly the number of votes for each candidate, be signed by the inspectors, sealed, and immediately transi 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 west by the sea, on the north by the parallel of latitude including the miss 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 Sar on the west by the sea, on the north by the Santa Clara River, and a parallel tude 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 Angeles, on the west by the sea, on the north by Santa Inez River, and a par latitude existing from the head waters of that river to the summit of the Coast of mountains. 4. The district of San Luis Obispo is bounded on the south by the district o Barbara, on the west by the sea, on the north by a parallel of latitude includ 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 Sa Obispo, and on the north and east by a line running east from New Year's Point summit of the Santa Clara range of mountains, thence along the summit of tha to the Arroya de los Leagas, and a parallel of latitude extending to the summit 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 Carquen bay of San Francisco, the arroya of San Francisquito, and a parallel of latitude summit of Santa Clara Mountains, on the west and south by the Santa Clara tains 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 so the districts of San José and Monterey, and on the east and north by the bay Francisco, including the islands in that bay. 8. The district of Sonoma includes all the country bounded by the sea, the b San Francisco and Suisun, the Sacramento River and Oregon. 9. The district of Sacramento is bounded on the north and west by the Sacra River, on the east by the Sierra Nevada, and on the south by the Cosumnes Rive 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. lamation. The method here indicated to attain what is desired by all, viz., a more perfect Object of procpolitical 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, B. RILEY, Brevet Brig. Gen. U. S. A., and Governor of California. Brevet Capt. and Secretary of State. II. PROCLAMATION TO THE PEOPLE OF CALIFORNIA. ratification. 81. THE delegates of the people assembled in convention have formed a constitution, Constitution for which is now presented for your ratification. The time and manner of voting on this constitution, and of holding the first general election, are clearly set forth in the schedule; the whole subject is therefore left for your unbiased and deliberate consideration. The prefect (or person exercising the functions of that office) of each district will Duties of designate the places for opening the polls, and give due notice of the election, in ac- prefects. cordance with the provisions of the constitution and schedule. The people are now called upon to form a government for themselves, and to des- Change of ignate such officers as they desire to make and execute the laws. That their choice government may be wisely made, and that the government so organized may secure the permanent welfare and happiness of the people of the new State, is the sincere and earnest wish of the present executive, who, if the constitution be ratified, will, with pleasure, surrender his powers to whomsoever the people may designate as his successor. Given at Monterey, California, this 12th day of October, A. D. 1849. B. RILEY, Bvt. Brig. Gen'I U. S. A., and Governor of California. Brev. Capt. and Secretary of State. III. PROCLAMATION TO THE PEOPLE OF CALIFORNIA. 82. A NEW executive having been elected and installed into office, in accordance with Resignation of General Riley the provisions of the constitution of the State, the undersigned hereby resigns his as governor of powers as governor of California. In thus dissolving his official connection with the California. people of this country, he would tender to them his heartfelt thanks for their many kind attentions, and for the uniform support which they have given to the measures of his administration. The principal object of all his wishes is now accomplished-the people have a government of their own choice, and one which, under the favor of Divine Providence, will secure their own prosperity and happiness, and the permanent welfare of the new State. Given at San José, California, this 20th day of December, A. D. 1849. B. RILEY, Brevet Brigadier-General U. S. A., and Governor of California. Brevet Captain and Secretary of State. [ORDERS, No. 41.] HEAD-QUARTERS TENTH MILITARY DEPARTMENT, 83. 1. The brigadier-general commanding the department has this day relinquishe the administration of civil affairs in California, to the execution of the government o ganized under the provisions of the constitution, ratified by the people of California the recent general election. 2. Brevet Captain H. W. Halleck, corps of engineers, is relieved from duty as secr tary of State. By order of GENERAL RILEY. ED. U. S. CANBY, Assistant Adjutant-General. Inalienable rights of men. Popular govern ment. Jury trial. Religion. Liberty of conscience. Habeas corpus. Constitution of the State of California. Adopted by the Convention, 10th October, 1849. Ratified by the People, 13th November, 1849. Proclaimed, 20th December, 1849. Amended, 4th November, 1856, and 3d September, 1862. 84. WE, the people of California, grateful to Almighty God for our freedom, in ord to secure its blessings, do establish this Constitution. ARTICLE I. DECLARATION OF RIGHTS. 85. SECTION 1. All men are by nature free and independent, and have certain i alienable rights, among which are those of enjoying and defending life and libert acquiring, possessing and protecting property; and pursuing and obtaining safety a happiness.(") 86. SEC. 2. All political power is inherent in the people. Government is institut for the protection, security and benefit of the people; and they have the right to alt or reform the same, whenever the public good may require it. 87. SEC. 3. The right of trial by jury shall be secured to all, and remain inviola forever; but a jury trial may be waived by the parties, in all civil cases, in the mann to be prescribed by law.(') 88. SEC. 4. The free exercise and enjoyment of religious profession and worshi without discrimination or preference, shall forever be allowed in this State;(") and 1 person shall be rendered incompetent to be a witness on account of his opinions matters of religious belief; (d) but the liberty of conscience, hereby secured, shall n be so construed as to excuse acts of licentiousness, or justify practices inconsistent wi the peace or safety of the State. 89. SEC. 5. The privilege of the writ of habeas corpus shall not be suspended, unle () The "Sunday Law" of April 10th, 1858, held to be in violation of this section, Ex parte Newman, 9 Cal. 502. The "Sunday Law" of May 20th, 1861, held to be not in violation of this section; and the dissenting opinion of Justice Field in Ex parte Newman adopted, Ex parte Andrews, 18 Cal. 678. () The right to a jury trial cannot be waived by implication, Smith vs. Pollock, 2 Čal. 92, A reference to ascertain the damages sustained by reason of an injunction does not violate this section: the party availing himself of the stringent and extraordinary process of injunction is considered as waiving his constitutional right to a jury trial, Russell vs. Elliott, 2 Cal. 245. The words "prescribed by law" look to actual legislation upon the subject, and cannot be extended to a permission of the exercise of the power to others than the legislature, Exline vs. Smith, 5 Cal. 112. The language of this provision was used with reference to the right as it exists at common law. The right cannot be claimed in equity cases unless an issue of fact be framed, Koppikus vs. State Capitol Commissioners, 16 Cal. 248. Failure on the part of a party to appear on the trial of a civil cause operates as a waiver of a jury trial under the 179th section of the practice act; but if a jury is called, it must consist of twelve persons: a less number does not constitute a le jury without express consent, Gillespie vs. Benson, 18 Cal. 4 A court has no power to send an ordinary suit at law t referee for trial against the objection of either party; and th whether the suit involves the examination of a long account not. Our statute as to referring cases (except in cases of co sent) applies solely to equity causes, Grim vs. Norris, 19 C 140. () The "Sunday Law" of 1858 held to violate this provisi on the ground that it involved the enforced observance of a d held sacred by a religious sect and was a discrimination in fav of that sect and a violation of the religious freedom of other Ex parte Newman, 9 Cal. 502. The "Sunday Law" of 1861 (substantially similar to that 1858) held purely a civil regulation, not designed to subser any religious purpose. Held further, that the constitution do not make void legislation, the effect of which is to promo religion or even advance the interests of a sect or class of r ligionists, Ex parte Andrews, 18 Cal. 678. (4) A witness is competent without respect to his religio sentiments or conviction-the law leaving his competency! legal sanctions or at least to considerations independent of r ligious sentiments or convictions, Fuller vs. Fuller, 17 Cal. 60 |