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CONVENTION OF CALIFORNIA,
FORMATION OF THE STATE CONSTITUTION,
IN SEPTEMBER AND OCTOBER, 1849.
BY J. ROSS BROWNE.
PRINTED BY JOHN T. TOWERS.
PROCLAMATION OF THE GOVERNOR,
Recommending the formation of a State Constitution, or a plan of a Territorial Government.
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 deeins 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 recognise 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, were 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 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 uninteresting. It consists 1st, 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. 2d. A Secretary, whose duties and powers are also properly defined. 3d. A Territorial or Departmental Legislature, with limited powers to pass laws of a local character. 4th. A Supe