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provide such punishment as it sees fit. With that view, I shall vote for that decision many years ago. I do not know what their decision might this amendment.
be now; but I do know that I do not propose, so far as my vote goes, that Mr. LARKIN. I regret to hear a Judge that has a right to sit upon the Constitution of California shall be the first to invite corporal punishthe bench in this State express the views that he does upon this occasion. ment. This has been a great question in these United States. In the I regret that any man occupying the position of Judge of the one of the Congress of the United States an amendment was adopted to the Conhighest Courts should not have one particle of the milk of human kind stitution of the United States prohibiting cruel and unusual punness in his veins; whose sternness would crush the poor criminal, and ishments. Some years ago, I remember, that this question of such give him the whip, and disgrace him forever. I regret that such men punishment in the navy was the subject of discussion there. I believe as this are sitting upon the bench of this state. It is unfortunate. And for a time it was abolished. I am unable to state the condition of the why?. In the history of this states we find that the greater criminals-. question now, but for a time it was abolished. The tendency of the age this kind who rob the people, who have robbed the State and the United bas all been in that direction. Now it is proposed that we return to it; States have gone free through the connivance of Courts. They have but the whole argument is that the punishment is not sufficient. The escaped. And yet a Judge rises here and recommends the lash if a petty argument seems to prove it, but no argument has been presented here offense is committed. I say it is a pity that these men do not find some to show that it is the only kind of punishment that will inake the way means to protect the people against these men who rob the people. of the transgressor more hard. Why don't some of the gentlemen sugMR. FAWCETT. I would like to whip them, too.
gest some means by which crime may be lessened by a greater certainty Mr. LARKIN. Why don't you say so? My friend from Sacramento of punishment which would be secured by some proposition pending would like to imprison a man in the penitentiary for stealing a small before this Convention? Is there anything cruel or unusual in conlamb he has got, a lamb that is not worth a bit ; but there is no way in demning a criminal to hard labor? It is not cruel or unusual, and at our laws and our Constitution to catch some of these large thieves. It the same time it is not brutal. Might not the criminal be condemned is the fault of the administration of the government, you will say, that to a diet of bread and water, and then not even given that if lie does this bank robber or this treasury thief has escaped justice. You will not labor? If the punishment is not great enough seek some other see plenty of lawyers ready to take fees to free him. No inatter what means, but not return to this brutal system. I have heard it said that crime he has committed he can always get a lawyer to attend his case if the worst thing you can do with a man is to hang him. I deny it. he is rich, and a Judge to hear his case. It has become fashionable to rob The worst thing is to publicly whip him, and turn him loose upon the people, and to-day the people regard these men who have been suc- society. You had better hang him in the first instance. cessful thieves as model men in society. There is the fault. It is not in MR. GORMAN. I can remember, when a small child, of a picture in the administration of justice. It is not that our laws are not strict about the first book I ever studied in-a picture of whipping at the enough, but it is the leniency of the Courts to these men who are rich. post in Delaware. It was in a geography. From that moment I always Throughout the State and the United States the men that are rich can- was against whipping, for it seemed to be a cruel and unusual mode of not be punished in our Courts. You gentlemen sitting on the bench, punishment. I hope that it will not be introduced into this state. The you attorneys attending causes before our Courts, see that you do not picture of that criminal has taken hold of my mind from that day, turn away a man who has got money to escape.
small boy as I was, until the present time; and I shall always be against Again, our laws—both the laws of this State and most of the States, the adoption of that system of punishment. They say that the laws are are so framed to protect the criminal that it is almost impossible to con- not efficient to prevent crime in this state. I believe they are if rightvict. None knows that better than the distinguished gentleman from fully carried out. Alameda, Mr. Campbell. He knows that legislators have sought in Now, who are the criminals that are brought before the bars in this every way possible by legislation to provide for the escape of criminals. State? A great many of them are from foreign countries, as this is Here is the misfortune. Let laws provide to punish the great criminal a great center. As San Francisco is a great commercial center, they come and we will not have much complaint about these parties stealing little from all countries; consequently we have more criminals, and we expect things.
more than places that are inland and are not great commercial centers. MR. BARTON: Mr. Chairman: I do not really know or understand. We get them from all portions of the world. This State has been a the temper of this Convention upon this very important matter; but if flourishing State. It is a place where money has been plenty, and conby any word that I in my feeble way might utter I could prevent the sequently criminals have been attracted here in great numbers. We intelligence of this Convention from voting in favor of the adoption of have had crimes committed here in Sacramento very lately. We have the amendment offered by the gentleman from Alameda, I should cer- had steals to an unusual amount in banks and other institutions here, and tainly feel a thousand times thankful in behalf of humanity, in behalf, the men have gone free and are not punished. We see the same in San Mr. Chairman, also of the honor of the State of California. I do not Francisco. Whose fault is it? The laws are there if they are carried believe the people of this State are ready to see her representatives in a out, and I believe that they are not carried out as they should be. constitutional body take a step backwards towards the dark ages of bar- Now, a great many of the criminals of the State come from the boys barism, and erect upon the free soil of America the whipping-post-and of the State. Boys growing up in this country are almost without a if you please the guillotine. These, my fellow countrymen, are things means of gaining a living. They are crowded out by a certain class of of the dead past, and it is not for you or me to resurrect them.
people. I am a mechanic and I know that the boys come to all the Mr. Chairman, the fault is in another direction. It is not the fault shops of the State asking for work-boys that are really good; brought of the laws so much as it is in the administration of the laws. Look, up by good parents. If they go to any part of the State they find a if you please, at our Marcuse, our Davis, and the untold number of class there ahead of them that takes away their chance of earning a criminals in the City of Sacramento to-day that have become embezzlers, living. They cannot get work. They will not starve, and they steal and have stolen the people's money and have gone unpunished, and before they will starve. They have no work in the daytime, consewhat is the trouble? The trouble is, sir, that the very men who to-day quently they stay around nights, and the first thing get into low dives are the men of fees, who by education and by nature are men of fees, and cellars, and from that they very soon get to be criminals, first on a have interest that these criminals shall go unpunished before the law; small scale, and then the great criminals of the State. These are facts and it is for us not to take a step backwards in this dark and terrible known to every one that lives anywhere around the City of San Frandirection, but to insist upon the indiscriminate execution of the law. cisco. They cannot get anything to do, and they have got to commit Let the people have officers to enforce the law, and I think, Mr. Chair- crime to make a living. man, we will not need the lash. I hope and trust in God's name that They speak about capital punishment as though it should be abolthis Convention will not sanction any such unheard of thing in the ished.' it has been abolished in a great inany States, and reënacted. nineteenth century, that when a man beats his wife there will be a They talk about this in the same light, but I cannot see that capital proper law to provide for his punishment; but to return to the dark punishment can be compared to it at all. I should be in favor of capiages, to bring men to the whipping-post, is something that my nature tal punishment but not in favor of this, for capital punishment is where revolts from. hope the amendment will not be adopted.
life is taken, and this is for petty offenses. Let any one examine the Mr. MCCALLUM. The way of the transgressor is hard, and for criminal records of this state and they will very soon decide where the protection of society it should be, too. Perhaps it ought to be the criminals are educated, and how this system can be changed so harder than it is now. I think the argument of the gentlemen who are that there will not be so many criminals
in this State, and that will be in favor of restoring corporal punishment has proved that proposition, on the question of Chinese. but I cannot admit that they have proved, that the way to make it MR. LINDOW. Gentlemen of the Convention: I am very sorry to harder is by returning to the dark ages. Two or three States of the see that this is introduced, but I am glad that Mr. Campbell did it. Union have such laws, says my colleague. I hope California will not be Here we are represented from the whole State, and we discuss this for the second, nor the third, especially in view of the fact that of all the an hour and a half, and if it goes wrong we soon see on which side we Constitutions I have before me here, not one contains what is proposed have got the good men. The parties that will vote for a bill they say it that ours shall contain, an invitation to return to corporal punishment; is a good one, and the ones that vote against it of course they say it is many of them, at least some of them, expressly prohibit corporal pun- bad. That is my idea. It settles it just as plain as anything. The ishment, and say it shall not be inflicted. But two or three States have gentleman from San Francisco says the boys want work. That is all tried it, they say. The gentleman from Santa Barbara, Judge Fawcett, very well to say. They say, “ Well, we can't get work; we have to tells us that in Ohio there are but one third as many criminals in pro- steal.” I have got five children myself, and if they ever make an portion to the population as we have here. I waited to hear the point attempt to steal I go and gives them the lash. I never let them go to of the argument; whether they had the whipping post in Ohio, and I the whipping post. It seems to me that some gentlemen are afraid of it. am happy to say they have nothing of the kind there. Having once You can keep out of it if you like. Keep straight forward and you lived there for many years I am glad, for the credit of the State, that never get at the whipping post any. they have not. Delaware is the only one where I have heard of it, but Now, the boys they come into mine store, and I could give them work I understand that they have it in Virginia and Kentucky. But it if I could have control of them, but you have got no control of a boy seems to me that the provisions of their Constitutions are substantially here. There is work, but the boys wants
to work when he likes, and he the same as ours, and if the difficulty is in the word “unusual,” then it leaves you when he is some account. Nobody wants to beat the boy. is a sufficient answer to say that if it is to become fashionable, let it It would be a beast of a man that would raise his hand to a strange become fashionable elsewhere first, and the objection that it is unusual child to give him the lash. I was a man, twenty-two years of age, and will cease to apply to our Courts.
I have got a lickiu' from my mother. I never was before a Court in my The gentlemen say that the Courts decided wrong, and they rendered life, but still I always got to work. If the master had the control of a child as he would of his own, I would take a boy to learn the trade ; but aling by officers of corporations, I shall propose them myself. I shall you have got to take the boy and support him and pay him, and some do all in my power to repress crime in all states and conditions of society, of these days his temper will get up, and he goes off. Now, if we have but at the same time I do not desire to shackle the hands of the Legiscontrol of children fourteen or fifteen years of age, to train them up to lature. This particular kind of punishment has proved immensely learn the business, we would not have so much hoodlums. Because beneficial in Great Britain, where experience shows that a man who has why? You have got the coutrol of them. But if this whipping post received one whipping rarely comes back for a second. I say, if the would come in they would get whipped if they go to steal, and they Legislature can, by establishing that punishment in the future, repress would go to work, because they would not like it. Now, a man spends crime, I am in favor of it, and opposed to that sickly sentimentality his time on these boys to learn them the trade, and they want to be paid which sees a fellow knock you down and nearly kill you, to rob you, right off big wages. Now, I have learned a trade at seventy-five dollars but says it will be very inhuman to let him have lashes on his back. a year, and furnished everything except food, and I was very glad to Why, sir, there would be a discretion in these Courts if the Legislearn it that way. Now, gentlemen, it is no use to talk. Let us go and lature should pass any Act of this description. It would be applied vote on this question and see how this case stands.
where offenses were of such a description, and showed such a degradaMR. SHOEMAKER. I move that the committee rise, report progress, tion of manhood, that the infliction of the lash would be no additional and ask leave to sit again.
degradation to the offender--where he was lost to all sense of shame The motion was lost, on a division-ayes, 60; noes, 88.
and decency before;, where he was a public enemy, and where it was MR. VAN DYKE. Just one word, Mr. Chairman. I hope this necessary to resort to the infliction of that physical suffering which amendment will not be adopted. I think that the members of this would prevent him from committing crime if he had lost all moral sense. Convention do not see the scope which it embraces. Now, it includes MR. WICKES. I have been compelled in my profession to use the all corporal punishments. The gentleman from San Francisco, Mr. rod; and it has been thought that members of my profession are partial Stedman, said he was in favor of flogging wife beaters. The gentleman to its use; but, sir, it is a laceration to the feelings of any one to use the from Santa Barbara, Judge Fawcett, gives statistics in reference to State rod. There is nothing dignified in its use whatever. În the adminisPrisons. Now, wife beaters do not go to the State Prison. So that if the tration of school discipline, perhaps, it may be necessary: An ancient gentleman from San Francisco wishes to confine it to them, of course savant says, “spare the rod, and spoil the child,” but he never says the statistics of Judge Fawcett do not support his argument at all. All "man” once. I do not believe that man is in a pupilage, or that he it proposes is to return to the old repudiated plan of corporal punish- can be benefited by the whip. The older nations in the dark ages ment. Now, we can reform the prison system in this state. Put the resorted to all kinds of brutal punishments; but I think we should avoid ball and chain to these confirmed criminals, and put them to work, and copying after such uncivilized and barbarous peoples. I do not believe not disgrace the State by returning to barbarism in this age of the world. that we should give the Legislature all this power. I know that the I am opposed to the amendment.
practice of flogging obtained in the navy, but through Commodore StockMR. JOYCE. The gentleman from Santa Barbara, Judge Fawcett, ton it was abolished, and the discipline of the navy has been better ever says that if there is anything that can be done by this Convention to since. I am opposed to the amendment, because I know the improstop crime, we should do it. In that I agree with the gentleman. But priety of using the lash. In regard to capital punishment, there is why has not this learned gentleman of so many years' experience given something dignified in that which deters from crime. us some idea of what can be done? Now, the fact is patent, Mr. Presi- MR. KLEINE. I think the punishment of criminals is too severe to dent, to yourself, as being a practitioner before the Courts, as much as the small criminals. I know of one boy, nine years of age, that snatched any other living man, that to-day in the State of California there is a the purse of a lady, containing five cents, was sent five years to State premium on grand larceny, while petty larceny thieves are punished. Prison, whilst men who have stolen five or six millions of the earnings These men pretend to say that petty larceny thieves ought to be punished of the people have gone scot free. I hold that this amendment is going more, while such men as Ralston go unpunished. Why don't they back three hundred years ago. I say that the punishment is too severe. picture out this class of crime as the others were pictured by our friend, I never knew a case yet-I never knew a criminal yet in my life that Judge Campbell. It is a mild term to call this fraud grand larceny. was reformed by the whipping-post. For my own part, the man that Flood, Sharon, and others, rob men of their hard earnings, and then would lay the whip upon me I am sure I know what I would do with leave them without a dollar to get their families food to eat. If they him. Mr. President, I say as I said before, we should take compassion show us any practical way to lash them, I will say lash them, and lash upon the poor criminal. If these State Prison keepers were men of every inch of their bodies off'; but until they do that, I am opposed to lash- humanity, if they would treat prisoners more like human beings, I ing one class of criminals and grant a premium to another. Our friend assure you we would not have half the prisoners that we have to-day. from Sacramento wants to protect society. What form of society is it? THE CHAIRMAN. The question is on the adoption of the amendWhy, it is these grand larceny thieves who have built themselves up by ment offered by Judge Campbell. plundering the people under the pretense of law. What has built up The amendment was adopted, on a division : ayes, 69; noes, 63. the millionaires of the City and County of San Francisco and the State MR. GARVEY. I move that the Committee rise, report progress, and of California? Why, it is their manipulations in stocks of various ask leave to sit again. descriptions--mining stocks, water stocks, railroad stocks, and land Carried. grabbing. This is what forms society here, and this is the class that
IN CONVENTION. wants the lash. They want to lash the petty larceny criminal, but not
THE PRESIDENT. Gentlemen, the Committee of the Whole have the grand larceny thieves. Mr. FAWCETT. I beg to correct the gentleman. I said nothing of article on preamble and bill of rights, report progress, and ask leave to
instructed me to report that they have had under consideration the the kind, and entertain no such opinions. I believe in making a law to
sit again. bear perfectly equal upon all classes, and in whipping all classes who
ADJOURNMENT. show by their crime that they are deserving of that punishment. MR. JOYCE. We know that the laws are there, but these men do
MR. LARKIN. I move we adjourn. not get punished. Mr. Wilson told us that we had no right to legislate
The motion prevailed, and at five o'clock P. M. the Convention stood for a coming generation. I know that the laws are optional with the adjourned until to-morrow, at ten o'clock A. M. Judges, and we all know that some counsel have great influence on the opinions of Judges, as we read from the decisions of late in this State. If these gentlemen can show us that this worst class of criminals in this State, these grand larceny thieves, will be lashed, I will go for giving
THIRTY-FOURTH DAY. the lash to them. MR. CAMPBELL. Mr. Chairman: I desire to say but a very few
SACRAMENTO, Thursday, October 31st, 1878. words. I do not think that this amendment is thoroughly understood The Convention met in regular session at ten o'clock A. M., President by some gentlemen who have spoken upon this floor. My colleague Hoge in the chair. says that this term means any kind of torture. The language is plain. The roll was called, and members found in attendance as follows: It means the whipping-post, and nothing more or less. This amendment does not reëstablish the whipping-post. It merely gives the Legislature the power, if such a state of things shall be found to exist Andrews,
Graves, as to render the reëstablishment of the whipping-post necessary, to do Ayers,
Gregg, 80. Of course the natural feeling of all of us is against undue severity Barbour,
Hager, of punishment, but if you find that other means of repressing crime are Barnes,
Hale, not effectual, you must remember that the very first object of punishing Barry,
Dudley, of San Joaquin, Hall, crime is to protect society. The reformation of the offender is a mere Barton,
Dudley, of Solano, Harrison, secondary object. Those laws which are necessary to preserve the peace Beerstecher,
Harvey, and order of society ought to be reënacted; and if in the future it shall Belcher,
Heiskell, appear that other punishment will repress crime you can abolish it alto- Bell,
Herold, gether; but if it shall appear that it will have an influence in repress- Biggs,
Herrington, ing and preventing crime, that it will save our citizens from outrage, and Blackmer,
Hilborn, protect them from wrong and personal violence, and from fraud-if the Boggs,
Hitchcock, Legislature shall find it necessary in the future, why not do that which Boucher,
Holmes, may be necessary for the protection of society.
Howard, This does not specify any particular species of crime. That is neces- Burt,
Huestis, sarily left to legislative discretion. I do not think myself that it would Campbell,
Hughey, be a bad exercise of legislative discretion if the men who robbed the Caples,
Hunter, people of millions were triced up to the whipping-post. I have no Casserly,
Inman, objection to it. And let me say this, sir, that certain gentlemen speak Chapman,
Johnson, here as if we were endeavoring to oppose all reforms. I do not oppose Charles,
Jones, any reforms here. In the course of this Convention, if no other gentle-Condon,
Joyce, man shall propose measures which are calculated to repress the swin-Cowden,
DRAFT OF AMENDMENTS TO THE CONSTITUTION, PRESENTED BY THE
COMMITTEE ON CHINESE.
Section 1. The Legislature shall have, and shall exercise the power,
to enact all needful laws, and escribe necessary regulations, for the Larue, Pulliam, Townsend,
protection of the State, and the counties, cities, and towns thereof, from Lavigne, Reddy, Tully,
ihe burdens and evils arising from the presence of aliens, who are, or Lewis, Reed, Turner,
who may become vagrants, paupers, mendicants, criminals, or invalids Mansfield, Reynolds, Tuttle,
afflicted with contagious or infectious diseases, and aliens otherwise Martin, of Alameda, Rhodes,
dangerous or detrimental to the well being or peace of the State, and Martin, of Santa Cruz, Ringgold,
to impose conditions upon which such persons may reside in the State, McCallum, Rolfe, Van Voorhies,
and to provide the means and mode of their removal from the State, McComas, Schell,
Walker, of Marin, upon failure or refusal to comply with such conditions, provided, that McConnell, Schomp, Walker, of Tuolumne,
nothing contained in the foregoing shall be construed to impair or limit McCoy, Shafter, Waters,
the power of the Legislature to pass such other police laws or regula-
tions, as it may deem necessary.
SEC. 2. Any corporation incorporated by or under the laws of this
State, or doing business in this state, shall forseit its franchises and all Mills, Smith, of 4th District, West,
legal rights thereunder, if it ever employs, in any capacity whatMoffat, Smith, of San Francisco, Wickes,
ever, foreigners who are not eligible to become citizens of the United Moreland, Soule, White,
States under the laws of Congress. This section shall be enforced by
Wilson, of Tehama, appropriate legislation.
Wilson, of 1st District, SEC. 3. No alien ineligible to become a citizen of the United States
shall ever be employed on any State, county, municipal, or other public
work in this State after the adoption of this Constitution.
Sec. 4. All further immigration to this State, of Chinese, and all Noel,
other persons ineligible to become citizens of the United States under
the naturalization laws thereof, is hereby prohibited. The Legislature ABSENT.
shall provide for the enforcement of this section by appropriate legislaBerry, Dean, Lindow.
Sec. 5. No person who is not eligible to become a citizen of the LEAVE OF ABSENCE.
United States shall be permitted to settle in this State, after the adoption One day's leave of absence was granted to Mr. Cross, and two days' of this Constitution. leave to Mr. Herold.
SEC. 6. Foreigners ineligible to become citizens of the United MR. HILBORN. I move that the reading of the minutes of yesterday States, shall not have the right to sue or be sued in any of the Courts be dispensed with.
of this State, and any lawyer appearing for or against them, or any Carried.
of them, in a civil proceeding, shall forfeit his license to practice law. PETITION—LOCAL OPTION.
No such foreigner shall be granted license to carry on any business, MR. HAGER presented the following petition, signed by a large num- trade, or occupation in this state, nor shall such license be granted to ber of citizens of San Francisco, asking for a provision in the Constitu- any person or corporation employing them. No such foreigner shall tion for a local option law :
have the right to catch fish in any of the waters under the jurisdiction
of the State ; nor to purchase, own, or lease real property in this State, To the honorable Constitutional Convention of the State of California:
We, the undersigued, respectfully petition your honorable body to insert in the and all contracts of conveyance or lease of real estate to any such fornew Constitution of this State a clause similar to that now in force in the State of eigners shall be void. Texas, to wit:
Sec. 7. The presence of foreigners, ineligible to become citizens SECTION - The Legislature shall, at its first session, enact a law whereby the of the United States, is declared herein to be dangerous to the well from time to time, may determine whether the sale of intoxicating liquors shall be tion by all the means within its power. qualified voters of any county, voting precinct, town, or city, by a majority vote, being of the State, and the Legislature shall discourage their immigra
It shall provide for their prohibited within the prescribed limits.
exclusion from residence or settlement in any portion of the State it Referred to Committee on Legislative Department.
may see fit, or from the State, and provide suitable methods, by their taxation or otherwise, for the expense of such exclusion. It shall pre
scribe suitable penalties for the punishment of persons convicted of MR. BLACKMER. The Committee on Future Amendments desire to introducing them within forbidden limits. It shall delegate all necesreport progress, and ask for further time.
sary power to the incorporated cities and towns of this state for their THE PRESIDENT. If there be no objection, further time will be removal without the limits of such cities and towns. granted. Hearing none, it is so ordered.
SEC. 8. Public officers within this State are forbidden to employ Chinese in any capacity whatever; violation of this provision shall be
ground for removal from office; and no person shall be eligible to any MR. MILLER, from the Committee on Chinese, presented the follow- office in this State who at the time of election, and for three months ing report:
before, employed Chinese. The Committee on Chinese, to whom was referred certain
Sec. 9. "The exercise of the right of suffrage shall be denied to any proposed amendments to the Constitution, relating to Chinese, beg leave to report person employing Chinese in this State; and it shall be a sufficient back to the Convention the following propositions, with the recommendation that challenge that the person offering to vote is employing Chinese, or has no further action be taken thereon, viz.: Proposition number one, introduced by Mr. employed them within three months next preceding the election. Dowling; number seventeen, introduced by Mr. Joyce; number seventy, introduced by Mr. Barry; number one hundred and thirty, introduced by Mr. Kenny; number
MR. MILLER. I move that the amendment lie on the table, and be two hundred and sixty-six, introduced by Mr. Kleine; number eighteen, introduced ordered printed. by Mr. Joyce; number sixty, introduced by Mr. O'Donnell; number seventeen, THE PRESIDENT. So ordered. introduced by Mr. Murphy; number one hundred and seventy three, introduced by. Mr. Wellin; number three hundred and twenty-one, introduced by Mr. O'Donnell;
PROPOSED AMENDMENTS. number three hundred and ninety, introduced by Mr. Joyce; number three hundred and eighty-eight, introduced by Mr. O'Donnell; number four hundred and
THE PRESIDENT. The next order of business is the introduction twenty-three, introduced by Mr. Estee; number forty-four, introduced by Mr. of resolutions and propositions relative to the Constitution. Turner; number one hundred and thirty-one, introduced by Mr. Kleine; and the MR. WILSON, of First District. I desire to send up a proposition, at second and third sections of number two hundred and ninety-two, by Mr. Tuttle.
The committee has carefully considered the foregoing, and adopted, in substance, the request of the Committee on Judiciary and Judicial Departments, sach portions as have been deemed of practical value, and included the same in the and ask that it be printed out of its order, and referred to that comamendments to the Constitution herewith presented for the action of the Convention. mittee : Your committee also begs leave to report back the amendment number three
JUDICIAL DEPARTMENT. hundred and fifty-two, proposed by Mr. Miller, amended as the same appears in sec. tion one of the draft of amendments accompanying this report, with the unanimous Section 1. The judicial power of the State shall be vested in the recommendation that the same be adopted as amended.
A majority of the committee has agreed to and instructed me to report to the Con- Senate sitting as a Court of Impeachment, in a Supreme Court, Superior vention the first section of proposition number two hundred and ninety-two, by Mr. Courts, Justices of the Peace, and such inferior Courts as the Legislature Tuttle, amended as the same appears in section two of the draft of amendments here may establish in any incorporated city or town. with, with the recommendation that the same be adopted as amended; also, propo- Sec. 2. The Supreme Court shall consist of a Chief Justice and six sition number twenty-three, by Mr. Nelson, which furnishes section three of the Associate Justices.The Court may sit in departments and in bank, and accompanying draft of amendments, with like recommendation; also, proposition number sixty-four, by Mr. Ayers, amended as the same appears in section four of the shall always be open for the transaction of business. There shall be accompanying draft of amendments with the recommendation that the same be two departments, denominated, respectively, Department One and adopted as amended; also, the first section of proposition number nineteen, by Mr. Department Two. The Chief Justice shall assign three of the AssoLarkin, which
forms section five of the accompanying draft, with the recommenda- ciate Justices to each department, and such assignment may be changed In addition to the foregoing, a majority of the committee has agreed to and by him from time to time. The Associate Justices shall be competent to instructed me to present, for the consideration of the Convention, the four sections, sit in either department, and may interchange with each other by agreenumbered six, seven, eight, and nine, respectively, in the draft of amendments here- ment among themselves or as ordered by the Chief Justice. Each of with, with the recommendation that the same be adopted.
the departments shall have the power to hear and determine causes and Your committee begs to submit the result of its labors without comment, it being all questions arising therein, subject to the provisions hereinafter conreserved, by common consent, for each member of the committee to sustain or tained in relation to the Court in bank. The presence of two Justices oppose, in Convention, the whole or any portion of this report. Respectfully submitted.
shall be necessary to transact any business in either of the departments, JNO. F. MILLER, Chairman. except such as may be done at chambers, and the concurrence of two
REPORT ON CHINESE.
MR. PRESIDENT :
Justices shall be necessary to pronounce a judgment. The Chief Justice ratification of this Constitution. If a vacancy occur in the office of shall apportion the business to the departments, and may, in his discre- Judge of a Superior Court, the Governor shall appoint a person to hold tion, order any cause pending before the Court to be heard and decided the office until the election and qualification of a Judge to fill the by the Court in bank. The order may be made before or after judgment vacancy, which election shall take place at the next succeeding general pronounced by a department; but where a cause has been allotted to election, and the Judge so elected shall hold office for the remainder of one of the departments, and a judgmet pronounced thereon, the order the unexpired term. must be made within sixty days after such judgment, and concurred in Sec. 8. The salary of a Judge of the Superior Court in the County by two Associate Justices, and if so made it shall have the effect to of San Francisco shall be the same as that of an Associate Justice of the vacate and set aside the judgment. If the order be not made within Supreme Court of the State. (Here provide for salaries in other the time above limited, the judgment shall be final. No judgment by counties.] a department shall become final until the expiration of the period of Sec. 9. A Judge of any Superior Court may hold a Superior Court sixty days aforesaid, unless approved by the Chief Justice, in writing, in any county, at the request of a Judge of the Superior Court thereof, with the concurrence of two Associate Justices. The Chief Justice may and upon the request of the Governor it shall be his duty so to do. convene the Court in bank at any time, and shall be the presiding Sec. 10. The Legislature of the State may, at any time, two thirds Justice of the Court when so convened. The concurrence of four of the members of the Senate and two thirds of the members of the Justices present at the argument shall be necessary to pronounce a judg- Assembly voting therefor, increase or diminish the number of Judges ment in bank; but if four Justices, so present, do not concur in a judg- of the Superior Court in any county in the State; provided, that no such ment, then all the Justices qualified to sit in the cause shall hear the reduction shall affect any Judge who has been elected. argument, and judgment may be pronounced by a majority thereof; and Sec. 11. The Superior Courts shall have original jurisdiction in all if they are equally divided in opinion, the judgment or order appealed cases in equity, and in all cases at law which involve the title or possesfrom shall stand affirmed. In the determination of causes, all decisions sion of real property, or the legality of any tax, impost, assessment, toll, of the Court in bank or in departments shall be given in writing, and or municipal fine, and in all other cases in which the demand, exclusive the grounds of the decision shall be stated. The Chief Justice may sit of interest, amounts to two hundred dollars, and in all criminal cases in either department, and shall preside when so sitting, but the Justices amounting to felony, and cases of misdemeanor not otherwise provided assigned to each department shall select one of their number as presid- for; also, in actions of forcible entry, and detainer, of proceedings in ing Justice. All sessions of the Court, whether in bank or in depart-insolvency, of actions to prevent or abate a nuisance, of divorce, and ments, shall be held at the capital of the State. In case of the absence for annulment of marriage, and all such special cases and proceedings of the Chief Justice from the place at which the Court is held, or his as are not otherwise provided for; also, of all matters of probate. And inability to act, the Associate Justices shall select one of their own num- said Courts shall have the power of naturalization, and to issue papers ber to perform the duties and exercise the powers of the Chief Justice therefor. They shall have appellate jurisdiction in such cases arising during such absence or inability to act.
in Justices and other inferior Courts in their respective counties on Sec. 3. The Chief Justice shall be appointed by the Governor, with questions of law only as may be prescribed by law. Said Courts shall the advice and consent of the Senate, and shall hold office during good be always open (legal holidays and non-judicial days excepted), and behavior. The Associate Justices shall be elected by the qualified their original jurisdiction shall extend to all parts of the State. Said electors of the State at large, and the term of office shall be twelve Courts, and their Judges, shall have power to issue writs of mandamus, years, from and after the first Monday of January next succeeding their certiorari, prohibition, quo warranto, and habeas corpus, on petition by election; provided, that the six Justices elected at the first election or on behalf of any person in actual custody, in their respective shall, at their first meeting, so classify themselves, by lot, that two of counties. them shall go out of office at the end of four years, two of them at the Sec. 12. Justices of the Supreme Court, and Judges of the Superior end of eight years, and two of them at the end of twelve years, and an Courts, may be removed by concurrent resolution of both houses of the entry of such classification shall be made in the minutes of the Court Legislature, if two thirds of all the members of the Assembly and a in bank, signed by them, and a duplicate thereof shall be filed in the majority of all the members elected to the Senate concur therein. All office of the Secretary of State. If a vacancy occur in the office of Asso- other judicial officers, except Justices of the Peace, may be removed by ciate Justice, the Governor shall appoint a person to hold the office until the Senate on the recommendation of the Governor, but no removal the election and qualification of a Justice to fill the vacancy, which shall be made by virtue of this section, unless the cause thereof be election shall take place at the next succeeding general election, and the entered on the Journal, or unless the party complained of has been Justice so elected shall hold the office for the remainder of the unex- served with a copy of the complaint against him, and shall have had pired term. The first election of the Associate Justices shall be at the an opportunity of being heard in his defense. On the question of first general election after the adoption and ratification of this Consti- removal, the ayes and noes shall be entered on the Journal. tution.
THE PRESIDENT. The Chairman of the Committee on Judiciary Sec. 4. The salary of the Chief Justice shall be ten thousand dollars and Judicial Department presents this proposition, and asks that it be per annum, and the salary of each Associate Justice shall be eight thou- printed out of order and referred to that committee. If there be no sand dollars per annum.
objections it is so ordered. SEC. 5. The Supreme Court shall have appellate jurisdiction in all MR. STEDMAN. Mr. President: By request of Mr. Lindow, I send cases in equity; also in all cases at law which involve the title or up the following proposition : possession of real estate, or the legality of any tax, impost, assessinent, toll, or municipal fine, or in which the demand, exclusive of interest,
ARTICLE or the value of the property in controversy, amounts to three hundred dollars; and also in all criminal cases amounting to felony on questions Section 1. All elections shall be conducted openly and free from of law alone. The Court shall also have power to issue writs of man- restraint. damus, certiorari, prohibition, and habeas corpus, and also all writs Sec. 2. All elections shall be by ballot. necessary or proper to the complete exercise of its appellate jurisdiction. Sec. 3. Electors shall in all cases, except felony or breach of the Each of the Justices shall have power to issue writs of habeas corpus peace, be privileged from arrest on the day of election during their to any part of the State, upon petition on behalf of any person held in attendance at such election, and in going to and returning from the actual custody, and may make such writs returnable before himself, or same. No elector shall be obliged to do military duty on the day of the Supreme Court, or before any Superior Court in the State, or before election, except in time of war or public danger. any Judge thereof. Any Justice of the Supreme Court may allow Sec. 4. For the purpose of voting, no person shall be deemed to have alternative writs and orders to show cause, with or without a temporary gained or lost a residence by reason of absence while employed in the restraining order. In cases of which the Court has original jurisdiction, service of the United States, nor while engaged in the navigation of the all issues of law and fact shall be determined by the Court in bank, or waters of this state or of the United States, or of the high seas, nor one of the departments, in such manner as may be provided by law or while a student in any institution of learning, nor while kept at any the rules of the Court.
almshouse or other asylum, nor while confined in any public prison; SEC. 6. There shall be a Superior Court in each county of the State. but no person, while confined in any prison, shall have any right to vote
Sec. 7. In the County of San Francisco there shall be twelve Judges during such confinement. No person who shall have been convicted of of the Superior Court, any one or more of whom may hold Court. any crime which is punishable by imprisonment in a penitentiary shall There may be as many sessions of said Court, at the same time, as there be entitled to the privileges of an elector. are Judges thereof. The said Judges shall choose, from their own num- Sec. 5. No soldier, seaman, or mariner in the army or navy of the ber, a presiding Judge, who may be removed at their pleasure. He United States shall be deemed a resident of this state in consequence of shall distribute the business of the Court among the Judges thereof, being stationed therein. and prescribe the order of business. The judgments, orders, and pro- SEC. 6. No person shall be elected or appointed to any office in this ceedings of any session of the Superior Court, held by any one or more State, civil or military, who is not a citizen of the United States, and of the Judges of said Courts, respectively, shall be equally effectual as who shall not have resided in this State one year next preceding the if all the Judges of said respective Courts presided at such session. election or appointment. (Here provide for the number of Judges for the Superior Court in each Sec. 7. No idiot or insane person shall be entitled to the privileges of the other counties.] The term of office of Judges of the Superior of an elector. Courts shall be six years, from and after the first Monday of January SEC. 8. Every male citizen of Mexico, who shall have been elected next succeeding their election; provided, that the twelve Judges of the to become a citizen of the United States under the treaty of peace estabSuperior Court, elected in the County of San Francisco at the first elec- lished and ratified at Queretaro, on the thirtieth day of May, eighteen tion held under this Constitution, shall, at their first meeting, so classify hundred and forty-eight, shall be an elector and citizen of this state, themselves, by lot, that four of them shall go out of office at the end of and entitled to all the privileges of a native-born citizen of the United two years, and four of them shall go out of office at the end of four States. years, and four of them shall go out of office at the end of six years, and Sec. 9. Every person shall be disqualified from holding office during an entry of such classification shall be made in the minutes of the the term for which he may have been elected, who shall have given or Court, signed by them, and a duplicate thereof filed in the office of the offered a bribe, threat, or reward, to procure his election. Secretary of State. The first election of Judges of the Superior Courts Sec. 10. No person who shall hereafter be a collector or holder of shall take place at the first general election held after the adoption and public money, or receiver of money as an officer, shall be eligible to any
ELECTIVE FRANCHISE AND PRIVILEGES.
CLAIMS AGAINST THE STATE.
STATE BOARD OF EDUCATION.
office of trust or profit until he shall have accounted for, and paid accord
IN COMMITTEE OF THE WHOLE. ing to law, all money for which he is or may be liable.
MR. GREGG. I will withdraw the substitute that I offered to section SEC. 11. General municipal elections shall be held biennially on the
six yesterday. first Tuesday after the first Monday in November. At all elections by the people, the polls shall be open from six A. M. to seven P. M.
THE CHAIRMAN. The Secretary will read section six as amended.
THE SECRETARY read: Referred to Committee on Privileges and Elections.
SEC. 6. All persons shall be bailable by sufficient sureties, unless for ELIGIBILITY OF JUDGES.
capital offenses, when the proof is evident or the presumption great. MR. BARBOUR introduced the following proposition to amend sec- Excessive bail shall not be required, nor excessive fines imposed; nor tion sixteen of article six :
shall cruel or unusual punishments be inflicted. But nothing herein SEC. 16. The Justices of the Supreme Court, and the District Judges, contained shall be construed to prohibit the infliction of corporal punand the County Judges, shall be ineligible to any other office than a ishment for crimes. Witnesses shall not be unreasonably detained or judicial office, or to any public employment whatever, other than of a confined in any jail or room where criminals are usually imprisoned. judicial character, during the term for which they shall have been
MR. VAN DYKE. I move to amend the section by inserting after elected.
the word “criminals,” in the sixth line, the words “or persons charged Referred to Committee on Judiciary and Judicial Department.
with crime," so that it will read; “Witnesses shall not be unreasonably
detained, or confined in any jail or room where criminals or persons CORPORATIONS.
charged with crime are usually confined." Mr. McCONNELL introduced the following proposition, relating to M2. TERRY. There is no jail in the State that has a separate buildcorporations other than municipal:
ing for witnesses who are detained. If he is confined at all he must be SECTION No corporation organized outside the limits of this state confined at the jail, though he need not be confined in the same room shall be allowed to transact business within this State on more favorable with the criminals. conditions than are prescribed by law to similar corporations organized MR. VAN DYKE. Strike out "jail or." under the laws of this state. The Legislature shall enforce this section MR. WILSON, of First District. I would suggest that they might be by appropriate legislation.
confined with criminals then unless the word “usually" is stricken out. Referred to Committee on Corporations other than Municipal.
Mr. VAN DYKE. I accept the amendment.
THE CHAIRMAN. The Chairman of the committee moves to strike Constitution, in relation to claims against the State, or any county, city section is adding on after the word “detained” the balance of the clause. MR: BARNES introduced the following proposed amendment to the out the words - jail or” and the word “ usually;"
MR. VAN DYKE. Mr. Chairman: The only amendment to the old and county, town, or municipal organization :
We have added on, “or confined in any room where criminals or persons ARTICLE
charged with crime are imprisoned.” The purpose is very obvious. As SECTION Every person having a disputed claim against the State, to witness the commission of a crime is imprisoned in an unfit cell or room
the law now is it frequently occurs that a party who is so unfortunate as or any county, city and county, town, or municipal organization, shall and herded with criminals, while the criminal himself perhaps may be have a judicial remedy therefor, to be provided by general laws by the able to give bail and go at large upon the streets. We think that is all Legislature; and no appropriation of money for the payment of any wrong. Any city or county that is not able to build a proper and suitadisputed claim shall be made by the Legislature, or by any county, city ble place for the detention of witnesses should not be allowed to hold and county, town, or municipal organization, except in pursuance of them, if they are to be herded with criminals. and in obedience to the judgment of a Court of competent jurisdiction, duly had and obtained.
MR. JONES. Mr. Chairman: I hope the amendment will not be Referred to Committee on Legislative Department.
adopted. I think the object aimed at might be attained and preserve the protection that was designed for witnesses detained. The object was,
as stated by the Chairman of the committee, to protect innocent men MR. WICKES introduced the following proposition, to amend amend- whose testimony may be needed upon the trial of cases at a future time, ment to article sections entitled “ Constitution and powers out means, are unable to give bail. Now the section as it first stood was
and who, by virtue of being strangers and in a strange land, and withof State Board of Education :"
To amend amendment to article sections entitled “Consti- designed to secure those persons in that condition, who were detained in incorporated cities," wherever such clause occurs, making its powers them; that they should not be put into the place where such criminals tution and powers of State Board of Education,” by striking out “except for a considerable length of time, perhaps, should not be put into the
attitude of common felons--of common criminals—and herded with general and complete. Referred to the Committee on Education.
are confined. As it stood it would have attained that end. But the
gentleman from San Joaquin suggests that there may not be any other CORPORATIONS.
place than the jail in the county. I submit that if there be none they
should provide one. The striking out of the word “jail” and leaving in MR. VACQUEREL introduced the following proposed amendment to the word "room” will have just simply this effect, that the witnesses the Constitution, relative to corporations other than municipal: detained will be taken to the common jail, to a place where felons are
Resolved, That each and every corporation now formed, or may be taken and persons charged with crime, and there will be incarcerated in formed in this state, shall be and they are hereby prohibited from per- the building, in a room which the public do not know from the room mitting any person or persons, company or corporation, to solicit for any that the criminals are occupying. business or occupation whatsoever on board of any car or cars, steam- Now, I fancy that it is not so much the hardship of occupying a room boats or steamers, or any other conveyance owned or controlled by such with a criminal, as it is the disgrace, to a private citizen, without offense, corporations now formed or may be formed as aforesaid. Any violation to be incarcerated in a place, in a jail, in a prison, in an institution of this section, in any manner whatsoever, shall be punished, upon which is used for the purpose of confining criminals and persons charged conviction of the offender, whether it be the corporation, or the employë with crime. It seems to me the amendment loses the whole salutary or servant thereof, by the total and absolute forfeiture of any charter or benefit of the section as it stood, so far as it is designed to protect honest franchise that the corporation so offending and violating may now citizens who simply have the misfortune to be witnesses; and if that possess or obtain hereafter.
amendment be not carried, I am certain that an amendment can be Referred to Committee on Corporations other than Municipal. made that will accomplish the purpose designed. It may be true that
they might not have the means in some counties of providing suitable
buildings, but I submit that in such cases they have seldom occasion to MR. DOWLING introduced the following proposed amendment to the detain a witness, and when they do, it should be the duty of the public Constitution, to prohibit bigamy and polygamy;
to provide a place—I do not care, though it might be some expense and SECTION The Legislature of this state shall provide that bigamy some trouble-rather than sacrifice the right of a citizen. I understand nor polygamy shall never be tolerated in the State of California. that by the amendment the room shall not be one in which criminals or Referred to Committee on Legislative Department.
persons charged with crime are confined, but I submit that is not enough for the protection of the citizen. It ought to be a place not connected
with any infamy at all. MR. MARTIN, of Santa Cruz, offered the following resolution :
MR. TERRY. Mr. Chairman: It is a fact, I believe, that in every Resolved, That the President of the Board of Regents of the University of the used by the Deputy Sheriff or the Jailer in charge of the institution.
county of the State which has a jail there are apartments usually respecting the annual expenses paid for salaries of all officers, employés, and attachés Prisoners are never confined therein. The object of the amendment of said University; also all incidental expenses connected with said institution; also was that these persons who were detained as witnesses might be kept in to give full detailed information of the amount of money received from the State, that portion of the building, and not compelled to herd with prisoners from individuals, and from all other sources, for the maintenance of said institution, or persons charged with crime. It seems to me that a witness would and the disposition made of such funds.
not be any more disgraced in being detained in the rooms usually MR. HAGER. I would suggest that the resolution be amended so as occupied by the Deputy Sheriff than in any other building, and it to read “President and Secretary.” The Secretary has charge of all would be a very considerable expense to any county to be compelled to the books and archives.
provide a separate place every time a witness was detained for a few MR. MARTIN, of Santa Cruz. I accept the amendment.
days—for I hope that this Convention will provide a means whereby it The resolution as amended was adopted.
will be unnecessary to detain any witness more than a few days, by haring the deposition of witnesses taken before an examining magistrate for
use in case the witness is absent or cannot be procured on the trial. MR. VAN DYKE. I move that the Convention resolve itself into a But it would be putting the counties to unnecessary expense to require Committee of the Whole, President Hoge in the chair, to further con- them to provide outside accommodations for men for the three or four sider the report of the committee on preamble and bill of rights. days occupied in the examinations. I do not understand that there will Carried.
be any particular hardship in detaining a man in a room usually occupied
BIGAMY AND POLYGAMY.
PREAMBLE AND BILL OF RIGHTS.