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 Front Page arrow Titles (by Subject) arrow 388.: THE CALIFORNIAN CONSTITUTION DAILY NEWS, 2 JAN., 1850, P. 4 - The Collected Works of John Stuart Mill, Volume XXV - Newspaper Writings December 1847 - July 1873 Part IV

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388.: THE CALIFORNIAN CONSTITUTION DAILY NEWS, 2 JAN., 1850, P. 4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXV - Newspaper Writings December 1847 - July 1873 Part IV [1847]

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The Collected Works of John Stuart Mill, XXV - Newspaper Writings December 1847 - July 1873 Part IV, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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388.

THE CALIFORNIAN CONSTITUTION

DAILY NEWS, 2 JAN., 1850, P. 4

This article quotes a letter from California announcing the results of the convention that had met at Monterey on 4 Sept., 1849, to draw up a constitution for the new state. The constitution was adopted on 13 Oct., and submitted to the people for a vote on 13 Nov. (See Constitution of the State of California 1849 [San Francisco: printed at the Office of the Alta California, 1849].) The first legislature of the new government met on 15 Dec., 1849. This unheaded first leader is described (twice, in identical terms) in Mill’s bibliography as “A leading article on the California Constitution, in the Daily News of 2nd January 1850”

(MacMinn, p. 72).

the last mail from California has brought intelligence possessing a different kind of interest from that which attaches itself to stories of masses of gold picked up in the beds of rivers and speculations on a possible depreciation of currencies by the cheapening of their standard. The Californians have not been solely occupied with “the diggings.” They have found time also to construct a set of institutions. With the active self-help characteristic of the energetic people from whom they are an offshoot, and of whose broad federation they already form a part, this motley assemblage coming together from many quarters, united by no previous tie, and finding on their arrival no constituted government to protect them, proceeded first to organize and enforce a system of voluntary governent, with the requisite sanctions, sufficient for their protection, and then nominated a convention, after the usual American manner, to prepare a Republican Constitution. It is worthy of remark how instantaneously any body of American emigrants, as soon as they have formed a settlement, proceed to make a constitution; though European authorities of no small account in their own estimation, are never tired of assuring us that constitutions cannot be made. But while these sages are stoutly denying the possibility of motion, the Americans, one after another, like Diogenes, rise up and walk;1 and not one stumble has yet occurred to mar the completeness of the practical confutation. Whatever other faults have been found with the Anglo-American constitutions, no one has yet said that they will not work; a fate so often denounced against all constitutions except those which, like the British, “are not made but grow,”2 or, it should rather be said, come together by the fortuitous concourse of clashing forces. Perhaps the truth is, that the constitutions which will not work are those which are made for the people, while those which do work, such as the American, are made by the people; a fact which is in itself a guarantee that the ideas which they embody are such as the people are already familiar with, and attached to, and are therefore both capable and desirous of making them “work.” It is so with the constitutions which spring into existence in the North American continent at the rate of one in every three or four years, namely, whenever either a new state is added to the Union, or the population of one of the older states resolves (like that of New York recently) on a general revision of its institutions.3 All these systems of government have, as might be expected, a family resemblance, but each new one affords in some one or other of its features a significant indication of the direction in which the general mind of America is tending.

The convention at Monterey, comprising about four-fifths of new settlers with Anglo-Saxon or German names, and one-fifth of old Spanish inhabitants (which is probably not an unfair proportion to the population), has concluded its labours; and the product of its deliberations is about to be submitted for approval or rejection to the general suffrages of the inhabitants. This proposed fundamental law of the state comprises many provisions not usually classed under the department of constitutional or political law: it includes, in fact, everything which is considered too important or sacred to be entrusted to the discretion of an ordinary legislature, and which is therefore inscribed in a sort of charter of rights and liberties, not to be altered except with peculiar formalities, and by an assembly chosen for the express purpose.

On the vital question of negro slavery, this constitution is irreproachable. By an express provision, “neither slavery, nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state.” [P. 4; Art. I, Sect. 18.] California has thus the honour of being the first southern state which has constituted itself free from that curse; and if the example be followed by New Mexico and the other states which will be formed in the newly-acquired territory, the iniquity is doomed. The slave-owners are well aware of this result; they have long ago declared that the question of the extension of slavery is the question of its existence; that once hemmed in within a corner of the confederation, it cannot long survive; that the joint moral and economical effects of closing the new territories to the export of slaves, will be rapidly fatal to the institution. In this point of view, the determined rejection of slavery by the first new state constituted in the territory which was sought and conquered (it is said) mainly for the perpetuation of slavery, is the heaviest blow which that form of tyranny has received in the United States, and is thus no unimportant event in history. In the first draft of the constitution the interdiction of slavery was accompanied by the exclusion of free negroes from settling in the state; but this provision was ultimately rejected by a vote of 31 to 8. Real improvement, however, is a slow process; a considerable remnant of injustice is still left. The negro inhabitant will be free, but not equal; the right of suffrage, otherwise virtually universal, is limited to “every white male:” and though there is a provision, expressed in grudging terms (the result, it is said, of a compromise), which permits the legislature to admit to the suffrage “Indians or the descendants of Indians,” in such “special cases” as two-thirds of the legislative body “may deem just and proper,” there is no such latitude given in favour of negroes. [P. 4; Art. II, Sect. 1.]

On one subject connected with the rights and interests of women, the Californian delegates have afforded an example which legislatures of greater importance in the world must ere long imitate. They have deemed it a fit thing to be not only enacted, but to form a part of the constitution of the state, that women shall have a right to their own property. The laws of most of the American states are on this point less unjust and irrational than those of England and of other countries of Europe. “All property, both real and personal, of the wife,” say the Californians, “owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband.” [P. 13; Art. XI, Sect. 14.] It must be by an oversight that the wife’s earnings are not included in the property which is to be at her separate disposal. As the words stand, she will have (if the phrase “separate property” is to be understood in its obvious sense) exclusive control over what may devolve on her by any mode of acquisition except her own labour. But even thus, how superior to the law of England4 —which on this, as on many other subjects, remains very little altered from what it was in those times of barbarism when the wife was literally the slave of the man by whom she had been appropriated. It is a proof of the ineffectual and unpractical character of the law reform movement that the law respecting the property of married women remains in the state it is: a law of which every one feels the injustice in the case of any women in whom he is himself interested; and consequently, parents or relatives who give or bequeath property to women, almost always endeavour to frustrate the law (which, however, they can only do very imperfectly) by the circuitous, expensive, and often unsafe mode of a settlement in trust. Yet, imperfect as is the protection which this contrivance affords to the woman, and serious as are the hazards incurred by it in case of dishonesty or rashness in the trustee, it never occurs to parliament to render all this in a great measure unnecessary by the simple expedient of doing common justice to the woman—by letting what is hers be hers, and not, as it is by “common law,” the husband’s.

Another highly creditable part of the Californian constitution consists of its provisions for education. A superintendent of public instruction, elected by the people, is to be one of the regular officers of the government. [P. 11; Art. IX, Sect. 1.] All lands belonging to the state, and all property of persons dying intestate and without heirs, together with a tax (to be solicited from Congress), of five per cent on all sales of land within the state, belonging to the federal government, are to be formed into a permanent fund for the support of common schools [pp. 11-12; Art. IX, Sect. 2]; and a grant of unappropriated land is to be solicited from Congress for the support of a university [p. 12; Art. IX, Sect. 4]. This is according to the laudable example of the New England States, which, of all communities existing, have made, in proportion to their population, the most munificent provision for general education:5 and of whose people it has been said, that they would as soon expect to be made to pay individually for the use of the streets, as for that of the common schools.

The Californians have taken precautions against both the burthen of a national debt, and the scandal of repudiation, by prohibiting their legislature from incurring debts or liabilities exceeding in the aggregate 300,000 dollars, “except in case of war, to repel invasion, or suppress insurrection;” or unless expressly “for some specified object or work.” [P. 11; Art. VIII.] In this last case, the law which authorises the work must provide ways and means for paying off the loans, with all interest, within twenty years; and this law must be submitted to the direct suffrages of the people, and is irrepealable until the debt is wholly paid. There will, we think, be few questioners of the justice and policy of this article of the constitution.

There are some other provisions, the policy of which is disputable—such as the entire prohibition of paper money in all its forms, and of all banks, except for the deposit of the precious metals [p. 7; Art. IV, Sect. 34]; and again, the exemption of “a certain portion of the homestead and other property of all heads of families” from “forced sale” by process of law—that is, from the claims of creditors [p. 13; Art. XI, Sect. 15]; a kind of entail, scarcely more defensible than those entails of a more ordinary description which, under the name of “perpetuities,” are prohibited by the constitution. [Ibid., Sect. 16.] By another article, whoever fights a duel, or sends or accepts a challenge, or is concerned as a second or otherwise in the transaction, is to be punished by being deprived of the suffrage, and disqualified from all public offices of profit. [Ibid., Sect. 2.] This looks like a serious intention to put down a practice which in some parts of the United States amounts to an evil of considerable magnitude: and the means used are more likely to be effectual than any others which we have heard proposed, since they attack the offence through motives of the same kind with those which generally prompt it, motives derived from the love of reputation and consideration.

The remaining provisions of the new constitution do not vary materially from the familiar features of representative democracy, as found in the older free states of the Union.

[1 ]When told there was no such thing as motion, Diogenes (400-323 ), the Cynic philosopher, got up and walked about. See Diogenes Laertius, Lives of Eminent Philosophers (Greek and English), trans. R.D. Hicks, 2 vols. (London: Heinemann, 1963), Vol. II, p. 40 (VI, 39).

[2 ]A favourite allusion of Mill’s, deriving from James Mackintosh, The History of England, 10 vols. (London: Longman, et al., 1830-40), Vol. I, p. 72.

[3 ]The revision of 1846 resulted in Constitution of the State of New York, as Adopted in Convention, Oct. 9, 1846 (New York: Burnton, 1846).

[4 ]On marriage a wife became sous couverture, thus losing her legal existence independent of her husband, and consequently was inter alia unable to exercise in her own name any rights connected with property.

[5 ]See, e.g., An Act to Provide for the Support of Common Schools (Montpellier, Vt.: n.p., 1827); An Act of the Commonwealth of Massachusetts, 1827. To Provide for the Instruction of Youth (Boston: Christian Register Office, 1828); and Public Acts Relating to Common Schools in Force in the State of Connecticut, in 1846 (New Haven: Osborn and Baldwin, 1846).