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 lot tery tickets allowed within this State.

X. Any citizen of this State 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 he 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.

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, enjoyment, 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.

Mr. GWIN offered the following resolution :

MYRON NORTON, Chairman.

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.

If

Mr. HALLECK stated that the committee did not consider this article (the declaration of rights) complete; but they had agreed upon it in a spirit of compromise, and with a determination to go forward with the work this morning. 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. JONES 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. BoTTs was not, for his part, prepared to cast any vote that this important 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 quorum 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 formation 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 Convention 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 sanction. 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 consideration 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 approval 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 Cone 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 Convention.

Mr. BOTTS 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 ap. pointed to report a plan or part of a plan of a State Constitution."

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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.

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 at all times, to alter or reform the same whenever the public good may require it.

Mr. NORTON stated, on behalf of the Committee, that in making this report, they did not intend that it should comprise the whole bill of rights. The Committee was forced, by the action of the House, to come in without proper time for deliberation and reflection, and report something. It was the understanding of every member that they were to have the privilege of introducing other sections. The first and second sections, introduced by the gentleman from Sacramento, (Mr. Shannon,) he believed the committee had agreed should be incorporated in the bill of rights. It was the proper place for them. The declaration of the sovereignty of the people, emanates from the foundation of our Republic. It has been adhered to ever since, and, he trusted, would be adhered to in all time to

come.

Mr. HALLECK suggested whether it would not be expedient, as the bill of rights introduced by the Committee was imperfect, and new sections must come in, to proceed to act upon those reported. Such additional sections as were deemed necessary, might then be moved. It would afterwards remain to determine upon the relative order in which they should appear.

Mr. JoNEs proposed, as an amendment, to strike out the first section of the bill now before the Committee, and insert the first section of the Constitution of Iowa. The CHAIR observed that an amendment to any part, except what was directly before the House, was not in order.

The question recurring on the first section, proposed by Mr. Shannon,
Mr. JONES moved to strike it out.

Mr. Borts was in favor of the amendment suggested by Mr. Jones, He considered the first section superfluous. It merely secures to the citizens of the State certain privileges, of which this Convention has no power to deprive them. It is only by their own act that they can be legally dispossessed of those privileges. Mr. SEMPLE rose barely to say, that he was opposed to striking out this article. He considered it an essential principle to be incorporated in a bill of rights. takes precedence of all others, and places those that follow it in a higher point of view. He trusted it would be retained.

It

After some discussion on the order of amendments, the question was taken on the first section proposed by Mr. Shannon, and it was adopted; the question then being on the second section,

Mr. ORD moved an amendment, which he stated was a literal copy of the second section of the bill of rights of Virginia. There was some difference between the phraseology of this section and that of the section before the Committee. It was in the following words :

2. That all power is vested in, and consequently derived from the people; that magistrates are their trustees and servants, and at all times amenable to them.

Mr. SHANNON had carefully examined the Constitutions of the different States, Virginia included, and had been unable to find a more terse, comprehensive, and appropriate section than that which he had proposed. He did not perceive what Mr. Ord's amendment added to it, or in what respect it was superior.

Mr. ORD explained the difference.

Mr. BOTTS thought Iowa had the advantage in this case.

She said all in one

clause that was contained in the two clauses proposed. He would vote against the amendment of his colleague (Mr. Ord.)

The question then being on Mr. Ord's amendment, it was rejected.

The question was then taken on the second section proposed by Mr. Shannon, and it was adopted.

The next question was on the first section of the report of the committee, viz :

3. 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.

Mr. Borrs moved to strike out the word "member," and insert "citizen." He considered the whole section superfluous, but desired that it shouid appear in the most acceptable form.

Mr. NORTON Suggested the word "inhabitant," which amendment was accepted by Mr. Botts.

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Mr. HALLECK observed that the clause was properly worded. The term inhabitant" would apply to a certain class of people who were not entitled to the rights of citizens, but who were entitled to protection as inhabitants.

46

Mr. JONES objected to any such interpretation. The reading of the section is, no member of this State shall be disfranchised." That is to say, no citizen having certain rights, such as the right of voting, shall be deprived of them. You cannot deprive an Indian of a right to vote, when he has no such right. It applies to the full rights of a citizen. A citizen cannot be partly a citizen. This section requires to be analyzed. "No member," &c. Now a member of a State must have the rights and privileges of a citizen thereof; because if he has not, the article gives them to him. An Indian cannot be deprived of the rights secured to a white man without due process of law. The word disfranchised is applied to citizens in contra-distinction to foreigners. A man who is not franchised cannot be disfranchised; a foreigner in the United States, who is not a citizen, cannot be disfranchised. The provision is superfluous, and he (Mr. Jones) would not support it.

Mr. SHERWOOD supposed the word "member" referred not only to Indians, negroes, and Africans, but to citizens; and that the word disfranchised referred par ticularly to citizens. "No member," either a citizen or a foreigner, Indian, negro, or African, "shall be disfranchised." A citizen being the only member who who could be disfranchised, is therefore referred to by that word. A citizen of the State of New York, by the commission of certain crimes specified in the statute books, is disfranchised by law. This is intended to secure to him all the rights to which he is entitled, unless by his own act he is disfranchised. Mr. HASTINGS. There is another view of this question. Whether it is designed or not, the adoption of this section of the bill of rights would secure to certain classes, Indians and Africans, (if Africans are ever introduced here,) precisely the same rights that we ourselves enjoy. There is no clause in relation to the introduction of slaves or any other class of men. If you provide that no member of this State shall be deprived of the rights and immunities of a citizen, it is to be presumed that such member enjoys those privileges and immunities. If you declare that no man shall be decapitated for a certain crime, it may reasonably be presumed that he has a head. It must be clear, therefore, that that section proposed to be amended, was not designed by the mover to produce an effect of this kind. The word "inhabitant" would not be proper. Indians are inhabitants, but they do not enjoy those privileges in any portion of the United States; they are disfranchised. Yet we declare here, that they shall not be disfranchised without due process of law.

Mr. BOTTS thought the objections of the gentleman who had just taken his seat, to the word "inhabitant," were based upon an erroneous impression of the word "disfranchised." Every inhabitant of this State is franchised. It is not the elective franchise that is meant. The term embraces the general rights of a freeman. All classes of men possess rights and privileges. An Indian has rightshe has a right to his life. There can be no objection to the word "inhabitant.” If the gentleman is correct, and the inhabitant has no rights, of course he cannot be deprived of them. He (Mr. Botts) would vote against the whole section, because he considered it entirely superfluous.

Mr. ORD could not agree with his colleague (Mr. Botts) as to the meaning of the word "disfranchise." The popular meaning of the word "franchise" is the right of suffrage. It is derived from the French, and it would be well to be sure of the precise meaning. Words are things. If this is true, we are giving to all