not warranted by law, the results of the extension of our limits under such circumstances, and the difficulties, then threatening disruption of the union, which followed. But he dwelt especially upon the fact that, owing to various causes, not least among which was the gradual degradation of statesmanship into the trade of the politician, and the frightful increase of the influence of demagogues, the constitution was no longer regarded with the same reverence as in the earlier days of the republic; and that its beneficent theory and true nature had become forgotten or intentionally ignored by large masses of the people, whose unconsidered whims or unrestrained passions, fomented by unscrupulous leaders for entirely selfish purposes, it thwarted or curbed. His reflections upon these subjects, he said, could not but fill the mind with melancholy forebodings; yet there was hope, he thought, that truth would gradually but successfully struggle, until it freed itself from the mists that obscured it, and that the constitution itself, blazing with meridian splendor, would assert itself, and, by its own light, establish itself as the great luminary by which the nation's path was to be guided. If Mr. Benjamin had written his lecture in these days, and taken for his subject the difference between the new constitution of California as it was intended by its framers and the same constitution as it is now, in the course of less than four years from its adoption, expounded and administered, he would have found contradictions between precept and practice new in the history of constitutional law, and departures from the theories and plain intention of the constitution-makers that are almost startling. It may be doubted whether he would have regarded the delegates to our constitional convention as endowed with the same wisdom and patriotism as the sages and statesmen of 1787, or whether he would have looked up to the instrument which they produced with the same respect and reverence which he manifested for the august document under whose benign influence the United States had grown into a great and happy nation. Nor is it at all certain that he would have viewed many of the departures in practice from the theories and purposes of our constitution-makers with the same melancholy reflections and forebodings with which he witnessed every assault upon the constitution of the United States. But in whatever light he might have viewed the framers of our new constitution, or the instrument which their labors brought forth, or any departures in practice from its theories, it is very certain that, in his study of its practical working and administration, he would have found that hardly a single intention of the framers-that is to say, any of their new or peculiar theories—has been or can be successfully carried out. He would have found that many of its provisions, plain enough so far as the language and intention of the framers are concerned, have come to be administered, and in some cases, unfortunately, have been obliged to be administered, in contradiction to such intention; and that other equally plain provisions, intended by its framers as monuments of their wisdom and statesmanship, have not yet come to be, and never can be, administered at all. He would have found, on account of these differences between the intention of the instrument and the mode in which it is, and in some cases has had to be, administered, that anything like the respect and reverence with which the organic law of a great State ought to be regarded by its people is, in reference to this document, almost if not entirely wanting. He would have found it a thing talked about indeed as the constitution, and in force as such; but in every quarter recognized, even among those who claim merits for it, as full of crudities and mistakes. He would have found-what we are loth to say, though the fact is becoming more and more apparent― that the State constitution under which we are living is not so much a written instrument, plainly framed by a constitutional convention, but a series of constructions by our supreme court, supplemented by a few extra touches from the federal tribunals. The new constitution of California was framed and adopted under peculiar circumstances. There were various causes of complaint among the people, some founded in reason, others based upon entirely mistaken notions, which caused great discontent. The times were out of joint. An aggressive new party had arisen, goaded on partly by its own miseries and partly by skillful fanning of its passions, which proclaimed war upon accumulated wealth and capital; while another party, less aggressive but more wide-spread, suffering under mortgages and monopolistic discriminations and exactions, was groping around blindly for relief. The former of these parties was infuriated to witness Dives luxuriating in his purple and fine linen on Nob Hill, at the same time that Lazarus had to scratch his back and have his sores licked in a hovel; while the latter groaned, first in spirit and afterwards in public resolutions, that on the one hand monopolists and middlemen were eating the greater part of the profits of their labors, and on the other hand money-lending mortgagees held them tight in their clutches for what was left; and that, notwithstanding this accumulation of grievances, the monopolists and moneylenders escaped taxation, while they themselves were obliged to bear all the burdens of carrying on the government. The former, suffering under many of the ills of poverty, in some instances failing to procure work at what was looked upon as living wages, and regarding the cheap labor with which capital built its railroads, ran its factories, and turned out its cheap food and clothing, as a chief enemy, raised the anti-Chinese cry: while the latter, meeting in their lodges, country school-houses and after church gatherings, and warming over the tyranny of the railroad and the injustices of corporations, raised the cry of anti-monopoly. Both parties found many minor grievences to complain of. The former, for instance, complained that land was held in too large quantities, and should be compulsorily distributed with more equality among the people: while the latter, besides the wrongs of corporations, maintained that the taxation of mortgaged land for its full value and exemption of the mortgages imposed upon it was a burning outrage and shame. The former of these parties, it is almost unnecessary to say, was what was known as the Workingman's or Sand-Lot party; the latter was the so-called Granger organization. When the constitutional convention met in 1879, it was soon found that the workingmen and the grangers together had a majority of the delegates; and they were not slow in understanding their strength and combining to take advantage of it. Each had its own peculiar object to accomplish, and each substantially consented, in consideration of aid from the other for its own projects, to assist the other in securing those in which it was specially interested. Each thought, or professed to think, that it and it alone had discovered and understood the cause of the public evils, and that the salvation of the country depended upon the accomplishment of the objects which it put forth as the fundamental planks of its platform; and under the circumstances each was willing to sacrifice almost every other interest for the purpose of securing its own purposes. money- purposes. Thus the Workingmen voted for the propositions of the Grangers, because they could thereby secure enough Granger votes to save the country according to the Sand-Lot evangel; and the Grangers voted for the propositions of the Workingmen, so as to secure enough Sand-Lot votes to bring in the golden age when there should be no more railroad tyranny, and city mortgagees, instead of country mortgagors, should pay the taxes. The result was a constitution which, in the plain intention of its framers at least, accomplished all these objects, and which, if it were carried out as it was designed and intended by its framers, would soon make the State of California a spectacle to nations. One of the most obvious purposes of the new constitution, as it was thus intended, was to "cinch" capital of all kinds. This was to be done in various ways; principally by changes in the revenue laws, and by placing such restrictions upon corporations as would make the accumulation of corporate wealth more difficult and precarious. It is not proposed to attempt to interpret the words and phrases used for the purpose of accomplishing these objects, but merely to state the general purposes contemplated and intended by the constitution-makers. They were so manifest at the time that wealth took the alarm; a general feeling of insecurity and uncertainty ensued, improvements and investments stopped; and it seemed for a while that everything was falling into a state of dry-rot. For some time after the adoption of the new constitution, capital, recognizing the spirit that had managed to bring it about, spread its pinions and stood on the tiptoe of readiness to wing its flight from our shores. And it was only by degrees, when it began to be found that the instrument could not be enforced as it was intended; when it began to be seen that the legislative and judicial departments of the government were disposed and determined to construe the new instrument to mean very much the same thing as the old constitution not only meant but expressed; that anything like confidence was restored, and capital, folding its outspread pinions, resolved to remain and wait for better times. There are some, of course, who deny that the constitution-makers intended anything like an attack upon capital, and who claim that the special taxation of all sorts of stocks, credits, dues, and other mere representatives of other property that is separately taxed, or that is not in the State, was not contemplated. But if this were so it would be difficult to tell why any change should have been thought necessary in the old constitutional provisions relating to revenue, or why it should have cost a long, doubtful, and desperate struggle, first in the legislature and then in the courts, to exempt deposits in savings banks from taxation, when it was plain that those deposits were being taxed in the form of cash and mortgages. It has since then been decided that the new constitution does not impose double taxation in any case, and it is obviously right that such ought to be the construction of the organic law; but at the same time it seems clear that in this respect there is a very wide difference between the constitution as it was intended by its framers, and the constitution as it is practically administered. Another purpose of the constitutionmakers, which grew out of the same leveling spirit, was to compel the wealthy holders of large tracts of uncultivated land to divide up and sell out. This was to be accomplished in part by providing that uncultivated land should be taxed at the same value as cultivated land of the same quality and similarly situated. Those who are at all familiar with the history of the country are aware that large tracts of land were, and are still, held under grants from the former government of Mexico, the title and ownership of which were guaranteed by the treaty of Guadalupe Hidalgo. As a general rule these lands, when they are fit for cultivation, are being gradually used for that purpose; and yearly greater and greater areas are being put under the plow. In some cases there are lands of the same character that are as yet used only for grazing purposes; and the owners, looking forward to increase in prices, resolutely refuse to sell: but it must be plain to every considerate person that cultivated lands yield greater returns than waste lands; and that no land is going to remain long uncultivated when it is much more profitable to raise crops on it. The only reason that land remains uncultivated for any length of time is, either that it is not specially fit for cultivation, or that, on account of the remoteness or uncertainty of a market for its produce, or the dearth of laborers, profitable working of it cannot be relied on. It is yet to be learned that there are any ranch-owners in the State who refuse to rent their waste lands to responsible tenants for the purposes of cultivation, or that there has ever been any disposition to thwart the production of breadstuffs, if such production can be shown to be profitable. At the same time, the land that is cultivated and yields a revenue is certainly more valuable than the same quality of land as well situated which does not yet, for any of the reasons above indicated, yield any revenue. There are thousands of acres of hill and mountain land in California that are of as good quality for grapes and as well situated for all purposes as the vineyards of Sonoma and Napa; yet until they come into demand and it will become profitable to plant, them, as some day it doubtless will, they are not and cannot be as valuable as the lands that are planted. There is no good reason why, until that day shall come, they should not be left to lie waste, or to be used, if they happen to have grass on them, for pasturing cattle. Nor is there any good reason why they should be taxed at the same rate as the vineyards per acre. They are not as valuable as the vineyard lands; and it is an absurdity for a constitution to attempt to declare them as valuable. In the same manner there are thousands of acres of desert land in the San Joaquin plains of the same quality and situated similarly to those wonderfully rich fields that are astonishing the world with their golden harvests. Every year more and more of them are being brought under cultivation, and as the country fills up they will all be occupied and yield forth their as yet ungathered wealth; but, until then, the waste that no one is yet ready to use is not as valuable as the same kind of land in another direction that pays its owner his regular rents. ceive what good has been, or could be, accomplished by the so-called mortgage tax imposed by the new constitution. The intention, as has been stated, was to relieve the debtor class and make the moneylenders pay the tax. For this purpose the land mortgaged, instead of being taxed for its full value, is taxed only for such value less the amount of the mortgage, though the mortgage tax still constitutes a lien upon the land. It is very clear that under these circumstances, when the money-lender loans his money on mortgage, he contemplates the fact that he has to pay the mortgage tax, and fixes the rate of interest at such a percentage as will include the mortgage tax over and above what he is willing to take for his money. Thus the mortgagor in It is effect pays the entire tax upon his land just In this case the constitution-makers at tempted, for the purpose of reaching an ulterior purpose, to put an incorrect definition upon the word "value," just as in the former case they attempted, for the same general purpose, to put an incorrect definition upon the word "property." But in neither case is their intention effective, nor can it be carried into execution. The old constitution provided, in as clear and perfect language as could be employed, that all property in the State should be taxed in proportion to its value, and that taxation should be equal and uniform; and it is upon that principle, and not upon the new principles intended by the new constitu- an instant that the money-lender is going to tion-makers, that the revenue laws are part with his money without his quid pro administered. quo. It was ridiculous for the constituAgain: it is somewhat difficult to per- tion-makers to suppose that they could by It is ridiculous to suppose for It is a little singular, and to the ordinary mind unaccountable, that the constitutionmakers, while dealing with this subject of money and finances, did not include in their document a usury law; or, in other words, provide that interest on money should not exceed a certain rate. It would have been a fitting climax to what they did in other respects. There are, perhaps, as many advocates of usury laws in California to-day as of mortgage-tax laws; and yet it must be apparent to everybody who seeks for the reason of the present low rate of interest while there is no usury law to compel it, that the price of money is a matter with which the law has no more warrant to interfere than with the price of wheat or wool. any such provisions accomplish their inten- and towns were to remove them without tions. their limits. Taking all the provisions on the subject of the Chinese together, it is plain that the intention was, by every possible means that could be employed, to deprive them of every right guaranteed them by treaty, and to drive them out. Not only so, but in the address to the people of California above referred to, it was expressly and boldly stated that the anti-Chinese provisions were rendered necessary for the reason that the federal government had refused to grant relief from the overshadowing evil -a declaration, when we come to think of it, not only threatening and aggressive, but treasonable. We use the word "treasonable" not because treason was really intended; but because it is in any case treasonable for a State by its constitution or laws to resist the constitution and treaties It is not the purpose of this article to of the United States in matters over which make a list of all the differences between they have exclusive jurisdiction. The adthe new constitution as it was intended by dress substantially admitted that relief could its framers, and the same constitution as it is only properly be sought from the federal expounded and administered. But there are, government, or if it did not admit it, such as in addition to those above pointed out, two we all know was the fact; yet it declared other important respects in which the con- that because relief was refused, the State, stitution-makers failed entirely in what they by inserting stringent enough provisions sought, and doubtless hoped they had into its constitution, was determined to take accomplished. One of them consists in the matter into its own hands. And what what may be called the anti-Chinese pro- now has been the outcome of it all? Why, visions. The convention met at a time simply to make the new constitution, so when the anti-Chinese feeling was at its far as these provisions are concerned, a height, and the cry of "The Chinese must laughing stock. Not one of them is now go" was a party shibboleth. There was enforced, and not one of them ever can be hardly any kind of a provision aimed at the enforced. Every time one of them comes Chinese, provided it was violent enough, before a court, the new constitution, to use which would not have found advocates. a rowdy expression which is appropriate It was not enough to stop immigration; but enough under the circumstances, gets "a those who were already in the country, black eye." It follows, therefore, that in admitted under treaty stipulations, and en- this respect, also, the practical working of titled to all the rights of other foreigners, the new constitution is in no respect what were to be hunted out of the country. As its framers intended it should be. the constitution-makers stated in their "Address to the People of California," the Chinese in our midst were a nuisance, and the nuisance ought to be abated. They were not to be employed on public works; no corporation was under any circumstances to employ them; and incorporated cities But the preeminent distinction of a constitutional provision being itself expressly declared unconstitutional, was reserved for the section under which it was intended to make the railroad disgorge some of its spoils in the way of taxes. With this object in view, it was provided that while private |