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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.
Entered according to act of Congress, by J. Ross BROWNE, in the Clerk's office of the District Court of the District of Columbia, 1850.
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 deems 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
rior Court (Tribunal Superior) of the Territory, consisting of four Judges and a Fiscal. 5th. A Perfect and sub- Perfects for each District, who are charged with the preservation of public order and the execution of the laws; their duties correspond in a great measure with those of District Marshals and Sheriffs. 6th. A Judge of First Instance for each District. This office is by a custom not inconsistent with the laws, vested in the 1st Alcade of the District. 7th. Alcades who have concurrent jurisdiction among themselves in the same district, but are subordinate to the higher judicial tribunals, 8th. Local Justices of the Peace. 9th. Ayuntamientos or Town Councils. The powers and functions of all these officers are fully defined in the laws of this country, and are almost identical with those of the corresponding officers in the Atlantic and Western States.
1. In order to complete this organization with the least possible delay, the undersigned, in virtue of power in him vested, does hereby appoint the first of August next as the day for holding a special election for Delegates to a general Convention, and for filling the offices of Judges of the Superior Court, Prefects and sub-Prefects, and all vacancies in the offices of 1st Alcade (or Judge of First Instance,) Alcades, Justices of the Peace, and Town Councils. The Judges of the Superior Court, and District Prefects are by law executive appointments, but being desirous that the wishes of the people should be fully consulted, the Governor will appoint such persons as may receive the plurality of votes in their respective districts, provided they are competent and eligible to the office. Each District will therefore elect a Prefect and two sub Prefects, and fill the vacancies in the offices of 1st Alcade (or Judge of First Instance) and of Alcades. One Judge of the Superior Court will be elected in the Districts of San Diego, Los Angeles and Santa Barbara; one in the Districts of San Luis Obispo and Monterey; one in the Districts of San Jose and San Francisco; and one in the Districts of Sonoma, Sacramento, and San Joaquin. The Salaries of the Judges of the Supe rior Court, the Prefects and Judges of First Instance, are regulated by the Governor, but cannot exceed, for the first, $4,000 per annum, for the second, $2,500, and for the third, $1,500. These salaries will be paid out of the civil fund which has been formed from the proceeds of the customs, provided no instructions to the contrary are received from Washington. The law requires that the Judges of the Superior Court meet within three months after its organization, and form a tariff of fees for the different Territorial Courts and legal officers, including all Alcades, Justices of the Peace, Sheriffs, Constables, &c.
All local Alcades, Justices of the Peace, and members of Town Councils elected at the special election, will continue in office till the 1st January, 1850, when their places will be supplied by the persons who may be elected at the regular annual election which takes place in November, at which time the election of members to the Territorial Assembly will also be held.
The general Convention for forming a State constitution or a plan for Territorial government, will consist of 37 Delegates, who will meet in Monterey on the first day of September next. These delegates will be chosen as follows:
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, it may elect supernumeraries, who, on the organization of the convention, will be admitted or not at the pleasure of that body.
The places for holding the election will be as follows: San Diego, San Juan Capistrano, Los Angeles, San Fernando, San Buenaventura, Santa Barbara, Nepoma, San Luis Obispo, Monterey, San Juan Baptiste, Santa Cruz, San Jose de Guadalupe, San Francisco, San Rafael, Bodega, Sonoma, Benecia; (the places for holding election in the Sacramento and San Joaquin Districts, will be hereafter designated.) The local Alcades and members of the Ayuntamientos or Town Councils, will act as Judges and Inspectors of elections. In case there should be less than three such Judges and Inspectors present at each of the places designated on the day of election, the people will appoint some competent persons to fill the vacancies. The polls will be open from 10 o'clock, A. M. to 4 P. M., or until sunset, if the Judges deem it necessary.
Every free male citizen of the United States and of Upper California, 21 years of age, and actually resident in the district where the vote is offered, will be entitled to the right of suffrage. All citizens of Lower California who have been forced to come to this territory on account of having rendered assistance to the American troops during the recent war with Mexico, should also be allowed to vote in the district where they actually reside.
Great care should be taken by the Inspectors that votes are received only from bona fide citizens actually resident in the country. These Judges and Inspectors previous to entering upon the duties of their office, should take an oath faithfully and truly to perform these duties. The returns should state distinctly the number of votes received for each candidate, be signed by the Inspectors, sealed, and immediately transmitted to the Secretary of State for file in his office.
The following are the limits of the several Districts:
1st. The District of San Diego is bounded on the south by Lower California, on the west by the sea, on the north by the parallel of latitude including the mission San Juan Capistrano, and on the east by the Colorado river.
2d. The District of Los Angeles is bounded on the south by the District of San Diego, on the west by the sea, on the north by the Santa Clara river, and a parallel of latitude running from the head waters of that river to the Colorado.