From the time the treaty of peace was signed with Mexico, California had been practically without government, except that provided by the local alcaldes, and yet Congress adjourned for the third time without having made any provision for a government for California. After gold had been discovered, even the few soldiers who remained under the control of the military governor and the sailors on the ships deserted, and conditions became so bad that there were scarcely men enough to guard the few military supplies." The population had increased from 10,000 in the summer of 1846 to 26,000 by the end of 1848, and to 50,000 by August of the next year.87 The new settlements usually elected alcaldes and when drastic action became necessary "miner's courts" convened and took such summary action as the conditions appeared to require.88 General Riley Calls the Constitutional Convention General Riley proved to be more energetic than his predecessors and upon receipt of news that Congress had adjourned without provision for a government in California, he immediately asserted his authority by issuing a call for a constitutional convention. The people through local meetings in the various communities had already recommended the calling of a convention, and were inclined to dispute the authority of General Riley.89 The difficulty was adjusted by the local organizations changing the date of their proposed convention to the date fixed by General Riley in his proclamation. The convention was called to meet at Monterey on September 1, 1849. THE FIRST CONSTITUTION The Constitutional Convention On September 1, 1849, 10 delegates to the constitutional convention met at Colton Hall in Monterey. They elected a temporary chairman and secretary and adjourned until Monday, September 3. On Monday there were 28 members present. The first matter taken up was the eligibility of members and the distribution of the representation. In the proclamation calling the convention General Riley had directed that "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 Jose 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, they may elect supernumeraries, who, on the organization of the convention, will be admitted or not at the pleasure of that body." 40 In order to make a proper adjustment for the increasing population in some of the districts and possibly to adjust an unequal apportion ment, the convention provided that the districts should be entitled to the following representation: "San Diego, two; Los Angeles, seven; Santa Barbara, three; San Luis Obispo, two; Monterey, five; San Jose, seven; San Francisco, nine; Sonoma, six; Sacramento, fifteen; and San Joaquin, fifteen."' 41 The Delegates The persons who actually took part in the convention were the following: 12 It will be noticed that the original number of delegates called by General Riley was 37; that the representation as apportioned by the convention was 73, but that only 48 members attended the convention. The northern districts in particular did not send the number of delegates allotted to them. 41 Browne, Debates, 4. Most of the members were young men, more than thirty of them were less than 40 years of age, nine were less than 30 years of age, and the oldest was 53. The occupations were varied. There were 14 lawyers, 11 farmers and 7 merchants. It is probable that a large number of the members were, temporarily at least, miners. Fifteen of the members may be considered as from the southern states and there were 23 members from the northern states. The northern members had also on the average been in California for a greater number of years. There were seven native Californians, and five foreign-born members, one from France, one from Scotland, one from Switzerland, one from Ireland and one from Spain. Organization of the Convention The convention was organized on September 4th. Robert Semple, delegate from Sonoma, was elected president and William G. Marcy was elected secretary. W. E. P. Hartnell was elected translator for the Spanish-speaking members and various other lesser officers were elected. J. Ross Browne was elected reporter. There are several of the members who deserve particular mention. The president, Dr. Semple, who had been a resident of California for five years, proved to be a tactful and capable presiding officer, although technically, many of his decisions on procedure were not correct. He had been the founder of Benicia and had taken an active part in the revolt of the American settlers in 1846. H. W. Halleck was acting as Secretary of State under General Riley, in addition to being a member of the convention and appears to have served both offices very well. He later received some note as a general during the Civil War. William M. Gwin, a southerner, who had last resided in Louisiana, was one of the leading members of the convention. He had been a member of Congress, had recently sat in the constitutional convention in Iowa and had come to California but four months before in order to become a Senator from the new State. Thomas O. Larkin had been the United States Consul to California and had taken an active part in the occupation. Edward Gilbert, publisher of the Alta Californian, was a leading member from San Francisco. Foster, Crosby, Dimmick and Hastings were leading northern men. Botts, a Virginian, was one of the most capable southern members and a lawyer of ability. James M. Jones was also another capable lawyer and supporter of the south. The more prominent Spanish members were Carrillo, De la Guerra and Vallejo who appears to have been strongly pro-American in spite of humiliating treatment received during the revolt in 1846. Of the foreign-born delegates Captain Sutter stands out very prominently. State vs. Territoriai Government Before the convention proceeded with the drawing up of the Constitution, Halleck secured a direct vote on the question of whether a state 48 The descriptions of the members are taken from Bancroft XXII, 285, 287. or territorial government was to be organized. The only opposition to a State Government came from the southern part of the State. The vote favoring a state government was 28 to 8.44 Procedure in the Convention When the convention proceeded to the formation of the new Constitution, McCarver moved that the committee take the Constitution of Iowa as a basis for the proposed Constitution. Mr. Gwin explained that he had selected the Constitution of Iowa to be used as a basis for the new Constitution "because it was one of the latest and shortest” and that he had secured several copies for the use of the convention.15 The method of procedure adopted was that proposed by Mr. Gilbert, of appointing a committee of two members from each district who should propose the new Constitution article by article. The first article, the "Bill of Rights," was reported on September 7th and the committee reported additional articles as each article was disposed of. Important Problems of the Convention The Bill of Rights as submitted by the committee made no reference to the question of slavery, but on motion of Mr. Shannon a section prohibiting slavery was adopted without opposition. The first question upon which there was much debate was as to the matter of excluding free Negroes. It was finally decided to leave that question to the Legislature. Another matter of controversy arose as to the right of a judge in charging juries to "state the testimony and declare the law." Yet finally the convention adopted the report of the committee giving the judges that power. Violent opposition was shown to corporations and particularly to banking corporations. Reference was frequently made to the panic of 1837, which was still fresh in the minds of many of the members. It was finally provided that "corporations may be formed under general laws, but shall not be created by special act," and "that no corporate body shall be created, renewed or extended with the privileges of making, issuing or putting in circulation any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank to circulate as money. 1946. In providing for a school system it was expected that the Government of the United States would allot considerable land to be used for school purposes and so no other provisions were made for financing the schools, but it was provided that "the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvements" and schools were required to be maintained for at least three months each year. 44 Browne, Debates, 23. 46 Browne, Debates, 119. 47 Constitution of 1849, Art. IX. Questions of taxation were generally left to the Legislature, except that it was provided that assessors shall be elected by the local districts. This was a concession to the southern part of the State where most of the taxable property was located. The Legislature was authorized to secure a loan of not to exceed $300,000. A section was adopted which provided that married women might have separate property. This was adopting a principle of the civil law in preference to the common law and continuing in effect the law as it had previously existed in California.48 The Boundary Question The problem of the convention over which there was the most controversy was the fixing of the eastern boundary. One group wished the eastern boundary to be the Sierra Nevada Mountains, while another wished to include the entire region ceded to the United States by Mexico, and which would include Utah and Nevada. After much heated discussion the present boundary was decided upon as a compromise, though it is scarcely east of the mountains. The arguments against the larger state were that the State would be so large that it could not be fairly represented in the Legislature nor the laws efficiently or effectively administered; that the large size would probably cause the State to be divided later, in which case it might lose some of its most valuable territory; that Congress would hesitate and might delay or deny the admission of the entire territory as one state. But the argument which appeared to finally settle the dispute was that there was in Utah a population of about 30,000, who had no representation in the convention, and the convention had no right to include them in the proposed State without their consent. The Government Provided The government provided for California by the convention was very similar to the present State Government. There were to be a Governor, Lieutenant Governor, Secretary of State and certain other elective executive and administrative officers. The Legislative Department was to consist of two houses to be called the Senate and the Assembly. The Governor was given the usual veto power. The Judicial Department, while very similar to that of the other states, was a continuation of the Mexican courts established by the law of 1837 with the one modification, that the Justices of the Supreme Court did not sit separately as judges of the district courts as the corresponding judges had done under the Mexican system. The Committee on the Constitution recommended that the Mexican system of courts be continued but the proposed article was amended to provide that Judges of the Supreme Court should not sit separately as judges of the courts of second instance, which were to be called district courts. 48 Art. XI, Sec. 13. 49 Browne, Debates, 154, 123-124, 167-169, 418-461. |