Here is the speech on the new California Constitution I gave at the Dicken’s Fair as part of the Lecture Hour. This is based on an actual newspaper essay published by JSM in the Daily News on January 2nd, 1850. Original text here: http://oll.libertyfund.org/titles/259#lf0223-25_label_204
The last mail from California, dated november 1849, 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 government, 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; 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,”. 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. They are therefore both capable and desirous of making them “work.”
Let us now shed lights onto the ways in which the California constitution distinguishes itself with regards to slavery, women’s right and education. On the vital question of negro slavery, this constitution is irreproachable. By an express provision, the constitution says, “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. 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 our 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 our laws—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.
Another highly creditable part of the California 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: 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.
I will end with one last amusing but nonetheless important article, which, I find, distinguishes itself by how effectively it roots out the problem it addresses. This 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.
Thank you all and let’s give our warmest congratulations to the brave Californian People.