ART. 9. When the pleas alleged by the culprit have no relation to the crime, or cannot în any way diminish its enormity, or are unlikely or improbable, they shall be left out altogether without receiving the cause on proof (a'prueba ;) in which case the trial (sumaria) being concluded, the culprit having been previously cited, and the Attorney General in the superior tribunal, it shall be delivered to the attorney or defender of the culprit for him to answer to the charges in the term of three days, which having taken place the definitive sentence shall be given. ART. 10. When any criminal escapes he shall not be summoned by edicts or by the public crier; but requisitory letters shall be made out for his apprehension and the necessary steps taken for his recovery in the mean time the trial shall be postponed, except as to collecting proof of the crime and its circumstances: but it shall be resumed when the apprehension takes place. : ART. 11. In cases where the plenary judgment has to be renewed, the cause shall be received on proof for a short time, to be postponed, according to its circumstances, as far as forty days; and only in the case of having to examine witnesses or to receive some other proof at such considerable distances as to make that term not sufficient, it may be postponed for sixty days, without any restitution or other recourse taking place in these terms. ART. 12. When the criminals interpose an appeal against any interlocutory proceedings, or any other appeal that has to go to the tribunal of second or third instance, the continuation of the cause shall not be suspended; and, therefore, if the original acts which caused the appeal can not be forwarded, certified copies must be sent. ART. 13. In all civil and criminal causes the interlocutory sentences must be pronounced within the precise term of three days; and the definitive ones shall be dictated by the superior tribunals within fifteen days after the first stage of the suit (vista) be concluded; and by the judges of first instance within eight days after finishing the causes. ART. 14. In trials of property, plenary ones of possession, and any other civil trial wherein the amount disputed shall exceed $4,000, appeal may be made to the tribunal of the third instance if the parties wish it, although the second sentence agree with the first. ART. 15. In the same trials, if the amount in question be less than $4,000, the sentence of the tribunal of second instance will cause execution, if it correspond exactly with the first, that is if the second sentence neither adds nor takes away anything which alters the substance or intrinsic merit of the first instance; so that neither the condemnation to pay costs, nor any other demonstration of a similar nature, can be called in opposition to said agreement. OFFICIAL CORRESPONDENCE. EXECUTIVE DEPARTMENT OF CALIFORNIA, GENTLEMEN: I have the honor to acknowledge the receipt of your communication of yesterday, respecting the mode of providing for the payment of the expenses of the convention now in session. I consider myself authorized by the Executive of the United States to use the "civil funds" now in my hands for defraying the necessary expenses of the civil officers of the existing government. The necessary expenses of the convention will be paid by me from this fund, as far as I may have the means at my disposal; but, as these means may be limited, and as I am held responsible to the government of the United States for the expenditure of the money, I cannot say beforehand whether I shall feel authorized to pay all, or, if not all, what proportion of the expenses incurred bý the convention. Very respectfully, your obedient servant, B. RILEY, Brevet Brig. Gen. U. S. Army, and Governor of California. Messrs. C. T. Botts, E. O. Crosby, T. O. Larkin, Elam Brown, R. M. Price, Committee. EXECUTIVE DEPARTMENT OF CALIFORNIA, Monterey, September 13, 1849. SIR: I have the honor to acknowledge the receipt of your note, (without date,) with a copy of a resolution of the committee, asking if I can place at the disposition of the convention, on or before the first day of October next, the sum of $70,000. I have no authority to place any of the public money now under my control at the disposition of any other person; but, as stated in my letter of the 11th instant, I shall consider it my duty to pay, so far as my means will allow, all the necessary expenses of the convention. I cannot, however, now say positively whether I shall have money enough at my disposal for the accomplishment of this object. In order that your committee may judge of this contingency for yourselves, I enclose a copy of my letter of August 30 to Lieutenant Colonel Hooker. Very respectfully, your obedient servant, B. RILEY, Brevet Brig. Gen. U. S. A., and Governor of California. Hon. C. T. Botts, Chairman, &c. EXECUTIVE DEPARTMENT OF CALIFORNIA, COLONEL: I have the honor to acknowledge the receipt of your letter of the 12th instant, communicating the views of General Smith respecting my acts and duties as governor of California. I must beg leave to dissent from some of these views, and to offer a few remarks in defence of the course which I have pursued in the administration of civil affairs in this country. In the instructions issued from Washington to General Kearney in 1846, for his guidance in California, the establishment of port regulations was assigned to the commander of the Pacific squadron, while it was said "the appointment of temporary collectors at the several ports appertains to the civil governor of the province." It was also directed that the duties at the customhouses should be used for the support of the necessary officers of the civil government. This division of duties and this disposition of the proceeds of the customs were continued during the whole war, except that for a part of one year the duties of collectors in some of the ports were performed by army and navy officers, while in others the civil collectors appointed by the governor of California were retained. On the reception of the treaty of peace, Governor Mason, for reasons which have been communicated to government, determined to continue the collection of revenues in this country, on the authority which has been given him, until Congress should act in the matter, or orders to the contrary should be received from Washington. He, therefore, as Governor of California, again appointed collectors in the ports where military officers had performed those duties, and collected the customs on all foreign goods as directed in the tariff of 1846-the commodore of the Pacific squadron continuing the direction of all matters relating to port reguations. 1 A double necessity impelled the governor to this course: the country was in pressing need of these foreign goods, and Congress had established no port of entry on this coast; the want of a more complete organization of the existing civil government was daily increasing; and as Congress had made no provision for supporting a territorial government in this country, it was absolutely necessary to create a fund for that purpose from duties collected on these foreign goods. It is true there was no law of Congress authorizing the collection of those duties, but at the same time the laws forbade the landing of the goods till the duties were paid. Congress had declined to legislate on the subject, and both the President and Secretary of the Treasury acknowledged the want of power of the Treasury Department to collect revenue in California. The Governor of California, therefore, assumed the responsibility of collecting this revenue for the support of the government of this country-a responsibility which he was fully justified in assuming by the necessity of the case, by the instructions which he had received from Washington, (and which had never been countermanded,) and by the existing laws of the country. It is not pretended that the Governor of California could derive any authority, either from the laws of this country or the instructions of the President, to collect revenue here, after Congress assumed the control of it. But in the interim between the signing of the treaty of peace and the extension of the revenue laws over this country, it is a fair presumption that the temporary regulations established here by executive authority respecting foreign commerce continued in force, so far as they conflicted with no provision of the constitution, treaties, or laws of the United States; at any rate, such was the course which Governor Mason determined to pursue, and, as this determination was immediately communicated to Washington, and the receipt of his despatch acknowledged, without one word of dissent being expressed, it is to be presumed that his action in the case met the approval of the government. The executive departments, though well informed of the course which the governor of California was pursuing in reference to the collection and disposition of this money, refrained from any interference, and, in all their orders, letters, and circulars, they most carefully avoided expressing the slightest disapprobation, or even doubt, as to the propriety of that course. Congress was fully aware that Governor Mason was collecting revenue here for the support of the civil government, and yet that body declined passing any laws for appointing collectors on this coast till the very close of the session, and even then no cognizance was taken of the moneys which had been or might be collected previous to the appointment and due instalment of these officers. The reason of this is obvious: as Congress had failed to organize a territorial government here, all were aware that the existing government must continue in force, and that it must have some means of support; such means were found in the neglected revenues of this coast, and employed for that object, and no one felt disposed to interfere or turn these revenues into the general treasury, until a fund was established sufficient for the more immediate and urgent wants of California. On no other supposition can we account for the action of Congress and of the authorities at Washington. It cannot for a moment be supposed that they would direct the continuance of a government here without the means of defraying its expenses; nor that they would tax, through the custom houses, the people of this infant colony, and at the same time deprive them of all the benefits of a government. Such a course might accord with the policy of the despotic powers of the Old World, but it would never be attempted with impunity in our country. On assuming command in this country as civil governor, I was directed to receive from Governor Mason all his instructions and communications, and to take them for my guidance in the administration of civil affairs. Upon an examination of these instructions, and a full consultation with Governor Mason, I determined to continue the collection of the revenue till the general government should assume that power, and to add the proceeds to the "civil fund"-using that fund for the necessary expenses of the civil government. Indeed, I had no other course left for me to pursue. This fund formed my only means of defraying the expenses of the government, which were already great. These expenses are daily increasing, and, as I have no power to impose taxes in this country, I cannot carry on the government without the moneys belonging to this "civil fund." Under existing circumstances, the necessity of employing civil officers, and paying them the full salaries allowed by law, is too obvious to require comment. I have pledged myself to pay these salaries from that fund, unless forbidden to do so by direct orders from Washington; and I shall redeem my pledge. This "ciyil fund" was commenced in the early part of 1847, and has been formed and used in the manner pointed out in the early instructions to the governor of this Territory. The money has been collected and disbursed by the "Governor of California," and by those appointed by him in virtue of his office. He is, therefore, the person responsible for this money, both to the government and the parties from whom it was collected; and it can be expended only on his orders. Not a cent of this money has been collected under the authority of any department of the army; nor can any such department, or any officer of the army, simply in virtue of his military commission, have any control, direct or indirect, over it. It is true, some of this money has, from time to time, as the wants of the service required; been transferred to the different military departments; but this transfer was in the form of a loan; and the money so transferred is still due to the "civil fund," and should be returned. The increased expenditures for the support of the civil government as it is now organized, and the pressing necessity of constructing prisons for the secu rity of civil prisoners, will soon render this restoration absolutely essential in order to carry on the government, especially as the transfer of the custom-houses to the regular collectors appointed by the general government will now cut off all further means of supplying the civil treasury. Entertaining these views of the correctness of the course which has been pursued by my predecessor and by myself respecting this "civil fund," I was not a little surprised at the ground assumed in your communication, that the collectors in California "are agents of the military authority of the department,” and that "disbursing officers [of the army] are allowed to draw on this deposite [the civil fund] for all expenses for which there are appropriations by law." No collectors in California now hold, or have ever held, any appointments, commissions, or authority from any military department; nor have they ever received any orders or instructions from such sources.. All their powers have been derived from the Governor of California, and they have been subject to his orders only. No disbursing officer of the army or of the general government has ever been allowed to draw upon this "civil fund," except in character of civil agent, or as a loan to a military department. And I am both surprised and mortified to learn that, at this late hour, an attempt is to be made to remove this money from my control, and to place it at the disposition of officers who have had no responsibility in its collection, and who of right can exercise no authority over it. Under the peculiar situation of the country, with an immense floating population collected together from all parts of the world, I thought my position as Governor of California sufficiently embarrassing without having new obstacles placed in my way by any attempts to deprive ine of the only means at my disposal for carrying on the government. If I mistake not, the opinion that the Governor of California has no control over the "civil fund" is of recent origin. I am told that the civil order of General Mason, as Governor of California, dated February 23, to the collector at San Francisco, was shown to General Smith on that day, and received his approbation; and that division orders No. 2, of the same date, were issued at the request of Governor Mason, for the purpose of showing the people of California that the course which had been adopted respecting the revenue on this coast accorded with the views of the general of the division. Moreover, that when informed that all the temporary collectors in California held their authority from the governor, the General expressed no wish or desire that the system should be changed. Granting that the military authorities here had a right to assume entire control of the revenue on this coast, although the President of the United States (if I mistake not) has clearly asserted that no such powers could be exercised by officers of the general government without the authority of Congress, it is nevertheless plain that no such power has ever been exercised. If such a course was intended by General Smith's orders of February 23, these instructions were never properly carried into execution; nor until the receipt of your letter had I any intimation that such a course was at all desired. The commanding general of the division was certainly aware that this whole revenue matter was managed by officers holding their authority from me as Governor of California, and that when money was wanted by the military departments, application was made to me to authorize the loan or temporary transfer from the "civil funds." If, however, it now be the General's wish to assume a military control of the collection of duties on imports into California, I will immediately discharge the collectors appointed by the Governors of California, and surrender the entire direction of the matter to such military department or military officers as he may direct. But for the money which has already been collected by the civil officers under my authority, I alone am responsible; and until further instructions from Washington, I shall continue to hold it, subject to my orders only, and to expend, as heretofore, such portions of it as may be required for the support of the existing civil government. No military officer or military department will be allowed to exercise any control over it. Let me not be understood as claiming for California any authority whatever over the duties on imports after that power was assumed and exercised by the general government. But I do say, that when the general government declined exercising that power, and voluntarily and knowingly permitted the proceeds of such duties to be devoted to the support of the existing civil government, it would be both unjust and ungenerous for military officers to attempt to embarrass the civil authorities by taking from them their only means of carrying on that govern ment. I have but a few words to add respecting that part of your letter which refers to the relations of the civil government with Indian affairs and the public lands. General Kearney, some two years and a half ago, in virtue of his authority as Governor of California, appointed two sub-Indian agents, and immediately communicated these appointments to Washington. The general government was also informed that these agents were paid from the "civil fund," and would be retained in office until the arrival of agents appointed by the proper authority at Washington. No military officer has any control over these agents of the civil government, nor can they interfere in any way with the duties of the military officers. I have never claimed to exercise any authority as civil governor over lands properly belonging to the public domain; it, however, is a question still undecided, whether the missions of California belong to the general government, to the government of California, or to the church. The direction and preservation of this property have for many years been vested in the Governor of California, and this system will be continued till the general government shall see fit to assume control over it. The rents of these missions are paid into the "civil fund," and expended as directed by the laws of California; but the leases are so conditioned as to cease whenever the agents of the United States shall be authorized to take possession of this property in the name of the general government. The authorities at Washington have been informed of this course; and as no dissent has ever been expressed, it is presumed it meets their approbation. I beg leave to remark, in conclusion, that while I shall always be most happy to receive the advice and suggestions of the commanding general of the division respecting my duties as civil governor of California, I must nevertheless be permitted to decide upon the measures of my own government; for as no military officer can be held accountable for my civil acts, so no such officer can exercise any control whatever over those acts. Very respectfully, your obedient servant, B. RILEY, Brevet Brig. Gen. U. S. Army, and Governor of California. Brevet Lieutenant Colonel J. Hooker, EXECUTIVE DEPARTMENT OF CALIFORNIA, GENTLEMEN: I have the honor to acknowledge the receipt of yours of the 17th, asking for information respecting the mode of making out the accounts of the affairs of the convention. Such accounts should in all cases be certified by the president of the convention as just and true, and authorised by the convention; then, on receiving my written approval, they will be paid by the civil treasurer, or his agents. Captain Kane will furnish you with blank form of accounts. Very respectfully, your obedient servant, B. RILEY, Brevet Brigadier General United States Army, and Governor of California. Messrs. E. O. Crosby, J. P. Walker, E. Brown, T. O. Larkin, J. Aram, Committee &c., STATE DEPARTMENT OF CALIFORNIA, MAJOR : I send you herewith a copy of the governor's proclamation of to-day, and of the constitution just formed by the convention. They will be printed together, in pamphlet form, for general circulation among the people. No effort should be spared to have them printed and circulated with the least possible delay. I enclose you a copy of proposals for printing by the proprietors of "Alta Californian;” but, if you can get it done with equal expedition and at less expense by any other press, you will do so. These proposals were made with the understanding that the constitution would be printed in the two languages in parallel columns; but it was afterwards determined to print them separately, viz : 8,000 copies in the English and 2,000 in the Spanish language. You may therefore be able to expedite the printing by contracting with separate presses for the printing, that is, with one for the English and the other for the Spanish. Mr. Tefft has been employed by Captain Kane to take this to San Francisco, and to assist you in superintending the printing. As soon as the work is completed, you will deliver to him the copies intended for the districts south of San Jose, including that district. In distributing the printed copies of the Constitution, you will be guided by the ratio of representation as fixed in the schedule; but in dividing the Spanish and English copies, a larger proportion of the latter should be sent to the northern districts, and most of the former to the south. Extra copies should be retained, on the first distribution, at San Francisco, to be sent south by the steamer, and north by other conveyances, so as to provide for the contingency of the loss of any of those first sent out. Every care should be taken to make the distribution as general as possible, previous to the time of hold the first election. The Spanish translation will leave here on the 14th by express. accordingly for the printing. I will write you again by the express. Very respectfully, your obedient servant, You can make your contract H. W. HALLECK, Brevet Captain, and Secretary of State. Major R. Allen, Civil Treasurer, San Francisco, California. |