GENTLEMEN OF THE SENATE AND ASSEMBLY:
The circumstances under which you have assembled are most new, interesting, and extraordinary, demanding our devout gratitude to the Supreme Being, the Creator and Father of us all!
You compose the first Legislature of the first free American State organized upon the distant shores of the Pacific. How rapid astonishing, and unexampled have been the changes in California! Twenty months ago California was inhabited by a sparse population – a pastoral people – deriving their main sustenance from their flocks and herds, and a scanty cultivation of the soil; their trade and business limited, and their principal exports consisting of hides and tallow. Within that short period has been made the discovery of the rich, extensive, and exhaustless gold mines of California; and how great have already been its effects! The trade and business of the country have been revolutionized and reversed – the population increased beyond all expectation – commerce extended – our ports filled with shipping from every nation and clime – our commercial cities have sprung up as if by enchantment – our beautiful bays and placid streams now navigated by the power of the energetic, intrepid, and sensible people of California have formed a Constitution for our new State – the Pacific Star.
You have assembled as the Representatives of the People, to put the State Government into practical operation; and the duty you have before you, is a sublime, but difficult task, requiring great unanimity, vigor, and wisdom in your councils.
The first question you have to determine is, whether you will proceed at once with the general business of legislation, or await the action of Congress upon the question of our admission into the Union. The Convention which formed the Constitution under which you have assembled, and the People who have ratified it with so great unanimity, have settled that question for themselves; but they have not settled it for you and me. The same oath that you and I have taken to support the Constitution of California also obliges us to support the Constitution of the United States; and, where the provisions of the two instruments conflict, the Constitution of our common country must prevail. That great instrument that now governs more than twenty millions of inhabitants, and links in one common destiny thirty States, and is to govern the hundred millions that will soon succeed us, and the many Free States yet to be, must claim our purest affections, and our first and highest duty. If, then, it would be inconsistent with the first rights of the Unites States, for you to proceed to put the State Government into full operation, before she be formally admitted into the Union, you should without hesitation forbear, and leave our people still to suffer on, rather than violate one single principle of the great fundamental law of the land.
But I apprehend there can exist no well founded objections to the proposition, that you have the right to proceed, at once, to put the State machine into full and practical operation. The Federal Government is one of limited delegated powers, and although supreme within its appropriate sphere, yet outside that sphere, and in reference to the reserved power of the States or the People, it has nothing to do. So far as their reserved powers are concerned, the States are independent of the General Government, of each other, and of the whole World. The exercise of the power conferred by the Constitution of California can in no way interfere with the rights of the United States, as they only assume to regulate our own internal, social, and business relations with each other.
Perhaps it may be satisfactory to refer to a few examples to be found in the Constitutions of some of the new States. In the Constitution of Missouri, adopted on the nineteenth day of July, eighteen hundred and twenty, there is a provision that than an election shall be held throughout the State on the fourth Monday of August of the same year, f or a Governor, Lieutenant Governor, Members of Congress, Members of the Legislature, and other officers. The Legislature were required to meet on the third Monday of September, and to pass laws of a permanent character at their first session. It is well known that the State was not admitted into the Inion upon her first application, but in the meantime, so far as I am enabled to state from information, having no access to the records of the State, the State Government was put into successful operation. Her members of Congress were not permitted to take their seats, and she was excluded from all voices in the National Legislature. But so far as her mere internal regulations were concerned, she had the same rights before that she after her admission.
In the Constitution of Michigan, adopted in Convention begun and held on the 11th day of May, 1845, it is provided that an election be held for Governor, Lieutenant Governor, Members of the Legislature, and a representative in Congress, on the first Monday of October of the same year; and the first meeting of the Legislature was held on the first Monday of November, 1835. In that year Congress was not in session after the fourth day of March, until the first Monday of December following. So that the State Government of Michigan was in full operation before application could be made to Congress for her admission into the Union.
The reasons and precedents would seem to leave no doubt of your right to proceed at once with the great business of legislation, so imperiously demanded by the destitute and confused condition of the country; and I would therefore most earnestly recommend you to set about the great and difficult task before you, without hesitation or delay.
Among the first and most important of your duties, besides the local legislation necessary for the State, will be the adoption of a civil and criminal code of laws for her government. This is an object of supreme importance, and it is the more so from the consideration that the action of the first Legislature will hardly be disturbed by any succeeding one.
What shall be done now cannot be changed or touched hereafter but at great cost and inconvenience. The new State of California is now in a position to adopt the most improved and enlightened code of laws to be formed in any of the States. The science of law is not yet fully perfected, and admits of some improvements; and in our new position we can readily adopt all the improvements that the researches and experience of others have made. I have given this subject my most careful attention for some years past, and as the result of my own convictions, I recommend the adoption of the following codes, so far as they are applicable to the condition of the State, and not modified by the Constitution of the Acts of the Legislature.
1st The definition of Crimes and Misdemeanors, contained in the Common Law of England.
2nd The English Law of Evidence.
3rd The English Commercial Law.
4th The Civil code of the State of Louisiana.
5th The Louisiana code of Practice.
These codes, it is thought, would combine the best features of both the Civil and the Common Law, and at the same time omit the most objectionable portions of each. The Civil code of Louisiana was compiled by the most able of American jurists; contains the most extensive and valuable references to authorities; has undergone no material changes for the last twenty years; and for its simplicity, brevity, beauty, accuracy, and equity, us perhaps unequalled. Its provisions almost entirely relate to general subjects, not local, and would be quite applicable to the condition and circumstances of the State. The Civil Law, the basis of the Louisiana Civil code, aside from its mere political maxims, and so far only as it assumes to regulate the intercourse of men with each other, is a system of the most refined, enlarged, and enlightened principles of equity and justice. So great a portion of the cases that will arise in our courts for some years to come, must be decided by the principles of the Civil Law, that the study of its leading features will be forced upon our judges and members of the bar. The Civil code of Louisiana, being a mere condensation of the most valuable portions of the Civil Law, would greatly lessen the labors of our jurists and practitioners; and from the simplicity and yet comprehensive nature of its provisions, a general knowledge of the leading principles of the law might the more readily diffused among the people. A sufficient number of copies of both the Civil code and the code of Practice could be procured at New Orleans at much less cost than they could be published here.
The grave and delicate subject of revenue is one to which I would call your particular attention. From the best estimate I have been enabled to make, the current expenses of the State Government for the first year will reach half a million of dollars, but most probably will exceed that sum. This large amount can be raised only in two modes: either by loan or by taxation. The first of these modes is objectionable on many accounts. The high rate of interest which money so readily commands in the markets of California, would prevent the State from negotiating a loan, except at such exorbitant rates as would be ruinous to her future prosperity. There can be no policy perhaps more injurious to our young State, before her credit is established or her resources developed, than the system of borrowing which has proved so disastrous to so many new States. As between individuals, it is exceedingly doubtful whether the credit system, upon the whole, has produced most good or most evil; and the objection applies with much greater force to organized States of communities. There is something very wrong in principle in the very idea of entailing our burdens upon posterity.
When a State borrows money to construct some great and permanent improvement, and leaves future generations to pay the debt, she also leaves them the work itself as some sort of compensation. The violation of principle consists in the present generation assuming to act for and to bind the next without their consent. But the case is still worse when a State borrows money to defray the ordinary expenses of her civil administration, because she bequeaths a debt to prosperity, without any means to pay it. It would be similar to a father borrowing money for his own purposes, during his life, and expending the same upon objects transitory in their character; and when he makes his will, to put in a clause that his children shall pay the debt, while, at the same time, he leaves them nothing to pay with. The only available and just mode of procuring the indispensable means of supporting the State Government, is by a system of direct taxation – the most fair, simple, and just mode of taxation ever resorted to. The people then know distinctly what the blessings of government cost them, and which is the more desirable, a plain Republican Government, administered upon economical principles, or a more extravagant system of expenditures; and if they should not be willing to pay enough to carry on an economical government, it would at once solve the great problem, whether they are capable of self-government or not.
The people of California may be safely trusted upon this subject; for there are no people more able and willing to pay the just taxes necessary to support the government than they. What property they have commands a high and ready price, pays in the precious metals; and labor meets such ample reward, that no healthy man can complain of poverty.
The law protects every man in his person and property. For the protection it gives his person and property. For the protection it gives his property he ought of right to pay a tax in proportion to its amount and value. I recommend, therefore, the imposition of a poll tax, and a tax upon real and personal property in proportion to its value. I also recommend that provision be made, that no individual who shall refuse to pay his taxes, being able, when they shall be legally demanded, shall be permitted to bring a civil suit in any court in this State for the period of one year, and not then until all arrearages are paid. This may seem a harsh measure, but it is not. The honest individual who pays his taxes will not feel it, and he who wished to evade the payment of the just dues of this State ought to feel it. There are some individuals in California who intend to remain here only while they extract her gold, and enjoy the protection of her laws, and who would willingly return without paying anything. This is particularly the case with respect to the great mass of foreigners in the country. In remote sections of the State, it may be very difficult to enforce the collection of the revenue by levy and sale. Many individuals perfectly able to pay, would find means to avoid the collector. But the silent and sure operation of the provision I recommend, would insure the collection of the revenue promptly, and with but little expense. There are few men who would, by their own voluntary act, exclude themselves from the courts of justice. I recommend that the collectors be authorized to receive the taxes in California gold, at the usual rate of sixteen dollars per ounce troy. Were the State revenue to be collected in coin, it would greatly increase the demand, already so great for the Custom House; and would thus operate still more injuriously upon the laboring miner. Besides it would be almost impossible for persons in the mines to provide themselves with the coin. I would also recommend that the revenue law be so framed as to require the collector to go around with the assessor; otherwise one half the revenue in some districts would be lost, in consequence of the frequent change of residence.
The operation of a reasonable and sound system of taxation upon the agricultural resource of the country, would be most decidedly beneficial in a very short period.
Most of the fine agricultural lands of California are now in the hands of a few persons, who suffer them to remain wild and uncultivated. A few months ago, when the population was small and the wants of the community few and simple, the natural pasturage of the country, with a limited cultivation of the soil, was ample for all the purposes of life; but under the changed circumstances, when our country teems with people who must be fed, and when the population is so rapidly augmenting, it is unreasonable, if not impossible, that the country should remain in a state of nature.
In the last fifteen months, the number of cattle in the country has been rapidly decreasing, while our population has increased in the same ratio. Fresh meats are indispensable to our health, and cannot be imported; and if this state of things should continue only a few years longer, the increased expenses of living will be so great that mining and other kinds of business must cease to be profitable.
The Constitution makes it the duty of the Legislature to encourage agriculture, that first and noblest of all industrial pursuits, but I am not aware of any other means at present within your power, than those I have suggested.
That portion of our people resident in California before it cession to the United States, have not been accustomed to a system of direct taxation; and being the principal owners of the landed property of the country, may not at first understand the justice or necessity of the revenue system our Constitution and condition make it indispensable for you to adopt.
The Mexican government derived no revenue from California, except that produced by a high tariff upon imports. These taxes were paid by the people in the shape of extravagant prices for the merchandise they purchased. But this portion of our people will soon learn, that under our system, the Federal government can alone levy duties upon imports – that the State cannot do so, and has only left to her a resort to a system of direct taxation, to raise those means indispensable to the very existence of the government itself. They will also see that our Constitution establishes the just principle, that all property shall be taxed in proportion to its value; and that the Legislature has no power or right either to favor or oppress any class of person, but must look to the property itself, in whose hand soever it may be found. They will also learn, that the same American manufactures, upon which they were accustomed to pay such high duties, now come into our ports duty free: and that they are compensated for the direct taxes they pay, in the increased value of their property, and the decreased prices of the merchandise they consume. It has been as truly as beautifully said, that a wise legislator adapts his action to circumstances. These he cannot create or remove, he can only conform to things he cannot control. He must take mankind and society as he finds them, not as he would make them.
He may so shape his laws as to produce a gradual improvement; but he cannot expect at once to reverse or overcome even the prejudices of a community.
Our Constitution has wisely prohibited Slavery with the State; so that the people of California are once and for ever free from this great social and political evil. But the Constitution has made no provision in reference to the settlement of free people of color within our limits, but has left the Legislature to adopt such legislation upon this delicate and important subject as may be deemed most essential to the happiness of our people. The Constitution excludes this class of persons from the right of suffrage, and from all offices of honor or profit under the State.
For some years past I have given this subject my most candid and serious attention, and I most cheerfully lay before you the result of my own reflections. There is, in my opinion, but one of two consistent courses to take in reference to this class of population, – either to admit them to the full and fee enjoyment of all the privileges guaranteed by the Constitution to others, or exclude them from the State. If we permit them to settle in our State, under existing circumstances, we consign them, by our own institutions, and the usages of own society, to a subordinate and degraded position, which is in itself but a species of slavery. They would be placed in a situation where they would have no efficient motives for moral or intellectual improvement, but must remain in our midst, sensible of their degradation, unhappy themselves, enemies to the institutions and the society whose usages, have placed them there, and for ever fit teachers in all the schools of ignorance, vice, and idleness.
Our position upon the Pacific, our commercial and mineral attractions, would bring swarms of this population to our shores. Already we have almost every variety of human race among us; a heterogeneous mass of human beings, of every language, and of every hue. That period is rapidly approaching, when the natural increase of population in the States East of the Rocky Mountains will render Slave labor of little or no value, and when investments in that species of property will cease to be remunerative. If measures are not early taken by this State, Slaves will be manumitted in the Slave States, and contracts made with them to labor as hireling for a given number of years, and they will be brought to California, in great numbers. Our State is now in a position to take an efficient stand upon this subject. A few years’ delay will make it almost, if not quite, impossible to do that which can be so easy accomplished now. If California will take a decided stand now, and firmly maintain it, a few years’ experience will demonstrate the practical utility of the measure. That weak and sickly sympathy – that misplaced mercy – that would hesitate to adopt a salutary measure to-day, but would suffer all the inevitable consequences of to-morrow, may consider the policy I propose as harsh in its character; but if it is calculated to produce the greatest good to the greatest number, it is the best humanity.
It could be no favor, and no kindness, to permit that class of population to settle in the State under such humiliating conditions, although they might think otherwise; while it would be a most serious injury to us. We have certainly the right to prevent any class of population from settling in our State, that we deem injurious to our society. Had they been born here, and had acquired rights in consequence, I should not recommend any measures to expel them. They are not now here, – except a few in comparison with the numbers that would be here, – and the object is to keep them out. I, therefore, call your most serious attention to this subject, believing it to be one of the first importance.
The Constitution provides that the sessions of the Legislature shall be annual on the first Monday of January. It also provides that members of the Legislature shall be chosen on the Tuesday next after the first Monday in November, unless otherwise ordered by the Legislature. The Legislature, at its first session, is required to appoint the Comptroller, Treasurer, Attorney General, Surveyor General, Three Justices of the Supreme Court, and Judges of the District Courts; but Judges of the County Courts, Clerk of the Supreme Court, County Clerks, District Attorneys, Sheriffs, Coroners, Assessors, Collectors, Justices of the Peace, and other officers, must be elected by the People. These officers are most important, and the Government cannot be put into operation without them. The question then arises, will the Legislature make provisions for the election of these officers at as early a day as practicable, or shall their election be deferred to the general election in November next? I would most respectfully recommend that a general election be held throughout the State for these officers, at the earliest convenient period.
It will be necessary to pass a general Act in reference to the Judiciary. I recommend that a Criminal Court be established for the City of San Francisco, and also for the City of Sacramento. The business of those Cities is so great that it becomes necessary to separate the Civil and Criminal Jurisdiction, and to place them in separate and distinct Courts.
I would call your attention to the thirty-seventh Section of the fourth Article, and to the fourth Section of the eleventh Article of the Constitution, having reference to the “Organization of Cities and Incorporated Villages,” and the establishing “a System of County and Town Governments throughout the State.” The objects contemplated in these Sections are very important to peace, beauty, and health of our commercial Cities. Great distress and inconvenience have already been experienced by the inhabitants of our growing Towns for want of some efficient System of City Government; and until some general and comprehensive system can be adopted, applicable to all places in the State having a certain number of inhabitants, there will be no permanent improvement in the present unfortunate condition of the things.
I have now suggested to you, Gentlemen, such of the more important measures I have thought it my duty to recommend, and the limits of a Message would allow; but there are many other and important subjects to which only a very brief allusion can be made. It will be necessary to pass an Act in reference to Crimes and Misdemeanors, affixing such punishment to each as may be in just proportion to the offence and in the power of the Sate to inflict under the existing circumstances. It would also be highly useful to pass an Act to prevent the Desertion of Seamen from merchant vessels visiting our ports. By the laws of all civilized countries, the contracts of seamen are regarded as peculiarly sacred, and are, therefore, rigidly and specifically enforced. I would also recommend the establishment of an inspection for provisions at San Francisco, that our people may note hereafter suffer so great losses from the purchases of injured or spoiled provisions. It will be necessary to divide the State into Counties – to determine the number of Justices of the Peace – to make acknowledgment and registration of deeds, and the registration of the separate property of wife – and to protect from forced sale a certain portion of the Homestead and other property of all heads of families. It will also be necessary to make provision for early construction of suitable Public Buildings, such as will answer for present purposes, and may be useful for Public Offices hereafter.
You before you a great amount of labor, and you will have to assume great and might responsibilities. The first legislators of a new State, under ordinary circumstances, have a difficult duty to discharge; but our position upon the Pacific Ocean, the relation we bear to the other States of the Union, and to the civilized and semi-civilized World, impose upon us peculiar responsibilities. We have to develop the great resources of our new country. Our commercial advantages are greater than our mineral, great as these are; the latter will supply us the necessary capital to build our commercial cities, and to carry on the most extended commerce. We shall soon be in close commercial intercourse with the teeming population of the Old World.
The rich and cheap productions of Asia are already pouring into our ports; and a few years will give us the wholesale trade of the entire Northwest Coast. We have a new community to organize, a new State to build up. We have also to create and sustain a reputation, in the face of the misconceptions of our character that are entertained elsewhere. But we have the most ample and the most excellent materials, out of which to construct a great community and a great State. The emigration to this country from the States East of the Rocky Mountains consists of their most energetic, enterprising, and intelligent population, while the timid and idle, who had neither the energy nor the means to get here, were left to remain at home. Either a brilliant destiny awaits California, or one of the most sordid and degraded. She will be marked by strong and decided characteristics. Much will depend upon her early legislation. To confine her expenditures within due bounds – to keep the young State out of debt – and to make her punctual and just in all her engagements, are some of the sure and certain means to advance and secure her prosperity. I hope we may be able to build up for her a reputation that will bear the just criticisms of the sensible, fair, and candid of all parties, as well as the vindictive assaults of her enemies, and the errors and indiscretions of her friends. In all of your efforts to accomplish this great object, you may depend upon my most cordial co-operation in all such measures as I can conscientiously approve; and protection of the Supreme Ruler who governs our nations as well as individuals, I subscribe myself,
Peter H. Burnett