Tuesday.] NOURSE-KINKEAD-TOZER-PRESIDENT-CHAPIN-FITCH-EARL-DELONG. [July 5.

from Humboldt is concerned, therefore, there home to attend to my private business; and need be no hesitancy on the score of courtesy Mr. NOURSE. If there are any others who desire to explain their votes, I suggest that they be allowed to do so in the columns of the Carson Independent.

Mr. KINKEAD. After the explanation which has now been made by the gentleman from Humboldt, I desire to change my vote to the affirmative.

Mr. GIBSON. I desire to do the same. Mr. CROSMAN. I wish to change mine also. Mr. TOZER. I wish to explain before changing my vote. I voted "uo" only as a matter of courtesy to the gentleman, and now I vote in the affirmative.

then let every man who wants to present arguments for or against the Constitution which we shall have adopted, go home, and work and talk as long as he pleases. Those are my sentiments, and those are the reasons why I wanted the resolutions laid on the table and allowed to remain there.

Mr. FITCH. I would like to explain my vote. I have only this to say that I raised the question of order upon the motion to lay on the table, not out of any discourtesy, but solely because I believed it to be important that we should enforce the common parliamentary rules in the outset.

Mr. DELONG. Now, I am compelled to rise to a point of order, because these gentlemen who put the gag on me are themselves making long speeches. My point of order is, that there is no question before the house.

The PRESIDENT. The gentleman from Storey (Mr. Fitch) asked leave to explain, and leave was given him, by the assent of the Convention, to proceed.

order.

The PRESIDENT. I will state, with the permission of the Convention, that I am not prepared to refer to the gentleman's explanation as a reason why I should change my vote. I voted in the negative, because I wanted to have the matter discussed. I wanted to hear from some gentlemen whom I knew had hither to opposed the adoption of a State Government, and who are now the ardent friends of Mr. FITCH. I only want to say that I that policy. I desired to hear from them an raised the question of order, not out of disexplanation of the reasons which, in their judg-courtesy to any one, nor from any desire to ment, now exist in favor of a State Govern- stifle discussion, but simply because I saw that ment which did not formerly appear, and I the discussion was flagrantly and clearly out of wanted that explanation to go forth to the people, to show them the reasons why we desire how to adopt a State Government. I wanted the subject ventilated, and believed there was no better time for this discussion than at the initiatory stage of our proceedings, in order that the people may be instructed, so far as the views of their delegates are concerned, as to the reasons and arguments in favor of the formation of a State Government. I do not change my vote, therefore, and I hope the matter will still be discussed, and possibly I may participate Mr. EARL. I offer this resolution, thinkin such discussion. I will repeat, however, my ing it will do no great hurt at least, to ascerformer statement, that I am opposed to every-tain what the feeling is amongst delegates from thing in the resolutions, save and except their loyal and patriotic sentiments.

Messrs. Parker and Hawley changed their votes from the negative to the affirmative.

The result of the vote was again announced, as follows:-

Mr. EARL offered the following resolution, which was read by the Secretary :

Resolved, That we now enter into a Committee of the

whole, and ask of Congress to give us a change in our Judiciary, and that this body now propose such change necessary to be made, and forward the same to Conwill grant our prayer; that we say to the people of gress. That we then adjourn, hoping that Congress this Territory that if this change is granted us, we think it better for the present to remain as we are, under a Territorial Government.

different parts of the Territory in relation to our passing now from a Territorial to a State form of government: I offer it for that purpose wholly.

Mr. DELONG. Mr. President, I am frank to confess that if the recommendation in that resYeas-Messrs. Ball, Banks, Belden, Brosnan, Brady, olution could be carried into effect immediChapin, Crosman, Crawford, Collins, Earl, Fitch, Friz-ately, and we could be assured that the desired ell, Folsom, Gibson, Hudson, Hawley, Hovey, Kinkead, Kennedy, Murdock, Nourse, Parker, Proctor, Sturtevant, Tagliabue, Tozer, and Wetherill-27. Nays-Messrs. De Long, Dunne, Lockwood, and Mr.

President-4.

So the preamble and resolutions were laid on the table.

Mr. CHAPIN. I desire to say that I voted aye for an entirely different reason from any that has yet been stated. I voted to lay the resolutions on the table for the simple reason that I believe we are here for business, not for the presentation of arguments for or against the adoption of a State Constitution. I came here to work, and I want to go to work, and work every hour till I get through, and go

change in our judicial system would be effected in that mode, I would certainly favor it, and it would be all I should ask. I went into the canvass and opposed the adoption of the Constitution last year, and the main grounds of my argument were, that in my opinion, we, as a people, were too young; that the amount of public property in this Territory which would be taxable under that Constitution was too small to warrant this people in assuming the responsibilities and obligations of a State Government, the support of which must fall so onerously upon the small amount of property which was then within our confines. I proposed that we should wait until we had the

Tuesday,]

NOURSE-PRESIDENT-CHAPIN-DELONG.

[July 5.

or ill. I would like to have that understood. The PRESIDENT. I suppose it would be entirely competent for the Convention at any stage to raise a committee to consider any portion of it.

Mr. CHAPIN. I will explain my view of it, Mr. President. I notice that the committee which was appointed before we took a recess did not report a recommendation that we should have any standing committees; consequently, as we must bring up our business in some manner, I think that this would be the best method. We can take up the Constitution, adopting it as a basis, and consider it in Committee of the Whole. Let us go on with it there, until we come to a disagreement, or until discussion arises, and then, if it should seem to be necessary, we can appoint a special committee of five or any other number, to which may be referred any particular section or article in regard to which there may be differences of opinion. I think it would be the better way to take up the Constitution in the manner the resolution proposes, and then as we see the necessity of appointing committees upon any particular portions, let them be appointed to report at subsequent meetings. I believe we can expedite business in that way much more rapidly than we can by referring the whole matter to various standing committees.

material wealth on which to base a State Gov-not prepared to say whether it would be well ernment, so far as property was concerned, so that our revenues might be sufficient to meet our expenses. But, sir, since that time, in the short space of less than a year, I have seen so many of the evil workings of a Territorial Government like ours, situated so far distant from the central Government, to which men are looking for appointments; I have seen, in our judicial department, such an extraordinary lack of ability to come up to the requirements of our condition, in the men who have received appointments in that department, that I have come to the conclusion that some remedy is absolutely demanded. Nor is it alone a lack of ability on the part of our judges. Of our three judges at nisi prius, at this time, one is sick and the others have absented themselves, and thus blocked the wheels of justice; so that in reality we have no Courts at all; although I know, and every lawyer knows, that we have interests in litigation so vast in importance that the parties interested in them could almost afford to pay the expenses of a State Government for one year if by that means they could have their rights judicially determined. This is what impels me to favor a State organization. It is to obtain the power of electing our own judges, and just as many of them as we want, to transact our criminal and civil business. But I feel sure that if this resolution should pass, or one embodying the same propositions, and we should petition Congress for this change of judiciary, the petition would hang there and probably never be acted upon; or even if it were acted upon we should not be sure of obtaining any relief whatever; consequently, I have made up my mind to vote for and support a State Government, and I shall vote against this resolution.

Mr. NOURSE. It seems to me that this is not the place to discuss the question whether or not we should adopt a State Government, and therefore I am opposed to the resolution. We are here to make and submit to the people a Constitution and form of State Government, and then let them say whether or not they will have a State Government. I move that the resolution be indefinitly postponed.

The question was taken on the motion to postpone the resolution indefinitely, and it was agreed to.

Mr. DELONG. I wish to offer an amendment to that resolution. I move to strike out the words-" The Constitution adopted by the late Convention," and insert the words "The amended Constitution of California; 99 so as to read: "Resolved, That the amended Constitution of California be taken as a basis," etc.

Mr. BANKS. I second that motion. Mr. DELONG. I trust, Mr. President, that the Convention will bear with me in the few remarks which I desire to make on this subject, because, whether successful or unsuccessful in the enforcement of the views which I present, it will propably be the last occasion on which I shall make any lengthy remarks in the Convention. I hope, therefore, that I may be heard patiently. Now, sir, I came here with this as a particular pet object which I had in view-that this Convention should adopt the amended Constitution of California as the basis of the one which they were to frame for submission to the people of Nevada. My reasons for wishing that are these I know that this Territory is peopled almost exclusively by Californians-by men that have lived and acquired property there for years past who have lived under and are acquainted with the Constitution of that State as it has been construed from time to time by the Supreme Court of that State. They have come into this Territory and found that here the leading and paramount interests of our TerriMr. NOURSE. I would inquire in relation tory are similar to those which they left behind to that, Mr. President, whether that will pre- them in the State of California. This importvent the examination of different portions of ant fact renders the Constitution and laws of the Constitution by committees? If so, I am California peculiarly applicable to us; for if

BASIS OF THE CONSTITUTION.

Mr. CHAPIN. I now call up my resolution, and ask that the Secretary read it as modified. The Secretary read as follows:—

Resolved, That the Constitution adopted by the late Convention be taken as the basis of the Constitution to be adopted by this Convention, and that the same be taken up in Committee of the Whole, and acted upon section by section.

Tuesday,]

DELONG.

July 5.

trouble of going to our Supreme Court to ascertain the true construction. If we find that Judge Field and other eminent judges have thrown the light of their genius upon any clause of the Constitution, we shall be willing at once to accept that construction.

they were applicable to the wishes and wants of Californians at home, they are equally applicable here, so long as our leading and paramount interests are the same. These men have acquired interests here under a knowledge of the laws as they are established there. They have regulated their intercourse with each other here as Another thing: the California Reports are in it is regulated there, to a greater or less ex-nearly every lawyer's library here, and they tent. In fact, they have brought with them the are familiar to every business man; and they peculiar customs and usages which prevail would become standard authorities on questions there, under the Constitution and laws of that of law, because they are reports of decisions State, and they have been governed by them in upon the same instrument which we would the acquirement of property here. Now no have as our fundamental law. I think it would other State in the Union, and no other land on save a world of expense, and a vast amount of the globe, except perhaps some of our remote litigation. And I think also-and in my opinTerritories, have those peculiar interests which ion this is worthy of consideration-that when we have in common with California, and conse- the question is presented before the people, quently the Constitution and laws of any other whether or not we are to have a State GovernState would be decidedly more inapplicable to ment, this action would prevent many men us than would the Constitution and laws of from doubting the wisdom of the instrument California. The people of that State have gone submitted for their approval or rejection. It on under their Constitution for fifteen years, would prevent men from going into the canand have been pleased with it. It has worked vass and telling the people, who do not always well, and as a truly loyal, energetic, enterpris- stop to consider or to study, that the Constiing, and intelligent people, they are fully tution proposed contained some new-fangled satisfied with it. Then why should we desire machine that would blow them all up. [Laughor expect to obtain anything better than that? ter.] The reply to that would be that we Then, another thing, if you adopt any other had adopted the same instrument that CaliConstitution, I care not whether it be better fornia has, and under which that State has or worse than the one I propose by my lived and prospered for fifteen years, and if amendment, and if in any single clause of that California has got a good Constitution, then we Constitution there is a difference in the reading, have a good one also. if any case arises which involves a construction of that clause of the Constitution, parties litigant will not rest content with a trial in the court of first instance, but in all cases, advised by their attorneys, they will appeal, and there will be the necessity of a construction of that clause. The opposing counsel on either side will always desire to have the Supreme Court of the State construe the clause for them. That is what led to that multifarious system of litigation in California. Perhaps the Supreme Court of California has had more business before it during the last twelve or fifteen years than the first appellate court of any other State in the Union, within the same period of time. And why? Because simply the people never will rest content with the decisions of the lower courts, but always appeal to the Supreme Court upon every possible Constitutional question, until they get the entire instrument construed by the court of last resort. Now, if we adopt the Constitution of California we have the benefit, without cost to us, of fifteen years of jurisprudence there, and all the litigation of I say, also, that there were many objectiontheir courts and the constructions which the able things contained in this instrument which Supreme Court have given to that instrument. were not brought to the attention of the people The Supreme Court of that State has been during the canvass, as they would have been, presided over by men of marked ability. Such if there had not been more salient points to be men as Stephen J. Field, and other eminent jurists whom I might name, have adorned that bench with their learning and legal talent, and their decisions would be received here by our courts, and by parties litigant, with scarcely ever a question, and without the expense and

Now, I know, Mr. President, how much men become attached to their own works--to the things of their own creation. I know that a large and respectable number of gentlemen in this Convention were members of the last Constitutional Convention-gentlemen who framed this Constitution which I now hold in my hand; and it is natural for them to believe that in the framing of it they had framed a wise fundamental law. But they will agree with me when I state that on that point they and the people disagreed. That Constitution was repudiated. They may say it was not on account of any inherent defects in the instrument itself; but I say this, that there were defeets, and glaring defects, which met with disapproval at the hands of this community, and which, if they were reiterated to-morrow, would secure to the work of our hands the same popular condemnation. It would be a fatal error, which would blast all our hopes that the people will adopt what we here shall construct.

assailed-things which were never mentioned by those who opposed this Constitution and State Government before the people. I know that, for I was one of the number that opposed it, and I was in most of their conferences. know that the Constitution was assailable in

Tuesday,]

DELONG-CHAPIN-DUNNE.

[July 5.

many other points than those which we saw fit make. I hope the amendment offered by my to submit to the people. colleague, (Mr. DeLong.) will not prevail. Now in following the line of the California The resolution which I offered admits of every Constitution, we are only following in that of facility for amending every section, and every the Constitution of a still greater State; a Con-line throughout the whole document. And stitution which received the indorsement of now I would like to inform my colleague that, many wise men. I speak of the Constitution as the President very well knows, this Constiof the State of New York; a State which has tution which I offered as the basis for us to act given her Constitution to very many of the western States of this Union. The Constitution of California was derived from that of New York, and from California it comes to us, and then we have a Constitution which all may understand and upon which there need be no dis

agreement.

I hope no feeling of personal pride, or desire to uphold that which they have themselves created, will prevent any gentlemen on this floor from selecting, as the basis of our new Constitution, that which is the best. We desire to give this people a fundamental law which will be wise, and which all may understand, and one also which they will adopt when called upon to vote upon it. We desire to remove as many as possible of the grounds of opposition, and of the arguments against a State government by those who are opposed to it, and who would naturally in the canvass attack the instrument itself as being unwise.

Now, sir, with these views, submitted hastily, I leave this proposition with the Convention. Is it not better to take that Constitution that

upon now, was framed under a resolution offered by Judge Bryan in the late Convention, that the Constitution of California should be the basis of the Constitution there to be framed. Under that resolution we went to work, and this Constitution was framed and adopted by

that Convention.

Now I believe it will facilitate the business very much, to take up this document which was passed by the last Convention, and let us proceed under that as a basis; so that we will not have to begin, and do the whole work over again, which was done by the last Convention. This document is already a remodelling of the Constitution of California, so as to adapt it to our own peculiar circumstances, and our own local divisions and subdivisions, geographically, with reference to our courts, and every thing else; and it would require at least four times as much labor to go back and adapt the Constitution of California to all these things, over again, as it would to proceed under this Constitution. I hope the amendment will not prevail.

Mr. DUNNE. I conceive that the manner in

think in two months we shall not have finished

I

not determined on this simple question, and I the entire Constitution, if we attempt to do the whole work in Committee of the Whole. think well of the proposition to accept the last Constitution as the basis of our action, for that tion on the part of the best talent in the TerriConstitution was the result of grave deliberatory, and I think for that reason it is entitled to our respect. At the same time, many persons here do not feel I know it from the remarks made about me here-like taking up with old clothes. Still, I think we had better take the last Constitution as our basis. But I think, however, that we cannot get along with the work with advantage in Committee of the Whole, and I will therefore offer this resolution as a substitute :

we know to be a good one, because it fully pro- which this resolution itself operates, is a suffitects the people in their lives, in their liberty. cient illustration of the fact that we shall in their property, and in the pursuit of happi- hardly ever get through with the Constitution, ness; a Constitution that is better understood if we attempt to discuss every one of its prothan any other one could be in this State, and visions in Committee of the Whole. Large one that is more applicable than any other, be-bodies move slowly. In half an hour we have cause our interests are more nearly identical with those of California than with those of any other State in the Union? Why should we not, for these reasons, take up that instrument which has received this thorough trial, and which has been found to be good and beneficent? Why not take that up and make it the basis of our action? And if in any particulars we see grounds of objection, we can offer amendments, and improve upon that which has been adopted and acted upon so long by the people of California. Let us improve upon it if we can, but let us assume it as the basis of our own fundamental law, and then we will have a fundamental law which originates not with us, not with a few men assembled here who may be, and probably are, less wise in their generation than many of the men who have thrown the light of their minds upon the Constitutions of California and of New York; but we will have the benefit of the wisdom of the past, the benefit of the jurisprudence of the past, the benefit of past experience; and I candidly believe that we shall then present to the people an instrument which they will be more ready to adopt than any new or untried experiment which could possibly be brought forth by us.

Mr. CHAPIN. I have a few remarks to

Resolved, That there be appointed a Standing Committee on Declaration of Rights, whose duty it shall be to report upon the first three Articles of the late Constitution of Nevada; a Standing Committee on Legislative Department, to report on Article IV; also on Executive Department, to report on Article V; also, on Judiciary, to report on Article VI, which shall also report upon Article VII of last Constitution; also, on Municipal and other Corporations, to report on Article VIII; also, on Finance and State Debt, to report on Article IX, which committee shall also report on Articles X and XI; also, on Education, to report on Article XII; also, on Militia, to report on Articles XIII, XIV, and XV, and that

BROSNAN-FITCH-KENNEDY-PRESIDENT.

Tuesday,]

[July 5.

the balance of the late Constitution be reported from considerate regard which the subject demands, Committee of the Whole; and that the several committees appointed be requested not to consider themselves limited in their powers to the consideration of the Articles referred to them, but are requested to present any amendments thereto they may deem advisa

ble.

Mr. BROSNAN. I second the substitute, in order to get it before the house.

to pass upon the varied subjects treated of, without having them, in some form, presented for our inspection, and this City cannot furnish, in sufficient number, copies of the Constitution of California to supply each member of the Convention; to say nothing of the facilities which would be required for making amendments, and placing them properly before the Convention, so as to be understood. But, on the contrary, if we take the Constitution of the State of Nevada, as adopted by the late Convention, as the groundwork and base of our action, we have it already in print. Several hundred copies of it are accessible, and when the necessity of amendments arises, as doubtless it will, we can use those printed copies, separating the different parts, and so obviate the necessity of any expense in the item of printing, and, at the same time, furnish all needed information. I speak without any pride of opinion in this matter, although, as most of you know, I had considerable hand in the framing of that document. I care nothing for that; I want the Convention to adopt a good, loyal Constitution, and one which will receive the indorsement of our respective constituencies; and I care not whose handiwork it may be. If it is such as to assure us a good State Government I am content.

Mr. FITCH. I trust that the substitute offered by the gentleman from Humboldt will not be adopted. We have now before us, under the resolution of the gentleman from Storey (Mr. Chapin), the Constitution adopted by the last Convention, and if the amendment of the other gentleman from Storey (Mr. De Long) be adopted, we shall then be in exactly the same condition that we would be if we were to adopt the resolution offered by the gentleman from Humboldt (Mr. Dunne), so far as our practical work is concerned. You take, for instance, the Constitution of Nevada or the Constitution or California, and bring it into Committee of the Whole, and you can there take up the propositions advanced, seriatim, and pass upon them without difficulty. But if committees are appointed upon the different provisions in either of those Constitutions, and consider them, and bring them into the Convention, then, after that, we have got to consider them in Committee of the Whole. We can just as well proceed in the first place in Committee of the Whole, without Again, as has been correctly remarked by the considering them in a standing committee first, gentleman from Storey, (Mr. Chapin), the Conand then in Committee of the Whole after-stitution of California was adopted as the basis ward. I do not see that anything would be of action of the late Convention which framed gained, but, on the contrary, it seems to me the Constitution referred to in the original momuch valuable time would be lost, by adopting tion. The gentleman from Storey, (Mr. Dethe suggestions of the gentleman from Hum- Long,) has referred to the Constitution of New boldt. York. I have had occasion, perhaps more than he has, or if less, then his memory is more at fault, to compare the Constitution of New York with that of California, and I cannot perceive that twenty sections of the one earlier framed, that of New York, has, without some material alterations, been incorporated in the Mr. JOHNSON (the President). It is not Constitution of California; and I think it would my purpose to unreasonably detain the Con- be within the bounds of truth to assert that not vention in the course of this discussion, but even ten consecutive sections of the California some views have been expressed which seem to Constitution are to be found in the fundamental me to call for a reply, and are entitled to the law of New York. There, the Judicial system respectful consideration of the Convention. is entirely unlike that of California. The same First, it is proposed to adopt the Constitution may be said of their Legislative and Executive of Nevada, framed by the late Convention, and departments. The Declaration of Rights of rejected by the people, as the basis of our ac- California contains not three consecutive lines tion; and the pending amendment is that the as embodied in the Constitution of New York. Constitution of California be substituted as Indeed, in all its essential features, the differsuch basis of action. We well know that no ences are important and essential. So that, to appropriation has been made to pay the ex- my mind, the gentleman's argument should penses of this Convention, and no inconsider- have no possible weight. But, on the contrary, able part of the expenditures of the late Con- the embodied labors of the late Convention has stitutional body, and, I may say, in all bodies section following section, without the substituof like nature, assembled under ordinary cir- tion of a word, or change of a single clause, cumstances, has been the item of printing. copied from the Constitution of California as it Now, if we secure the California Constitution now exists. In all essential features of the Juas a basis of action for this body, we will neces-dicial department, it is word for word with that sarily require a considerable amount of print- of California. In the Legislative department ing, as it will be impossible for us, with that it proceeds further, and provides annual sessions

The question was taken on the substitute proposed by Mr. Dunne, and it was rejected.

The question recurred on the amendment proposed by Mr. De Long.

Mr. KENNEDY demanded the yeas and nays. [Mr. Fitch in the chair.]

B