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by the Deputy Sheriff, and I think there is no jail in the State that and inserted some other words. The gentleman from Santa Clara now has not apartments of that kind.
moves to strike out these words that the committee have already MR. LÄINE. As I understand it, the amendment is to insert the inserted. The Chair rules that it is out of order. words" or persons charged with crime."
MR. HERRINGTON. I do not insist on it if that is so. The CHAIRMAN. The amendment which the Chairman of the com- THE CHAIRMAN. It is precisely the same language Judge Campbell mittee now offers is to strike out the words "jail or," and the word moved to strike out. “usually."
MR. HAGER. Mr. Chairman: If I understand the section as it now MR. LAINE. Then there are two propositions, an amendment and reads, after the word "crimes" it says: “Witnesses shall not be unreaan amendment to an amendment. Now, Mr. President, it seems to me sonably detained, or confined in any jail or room where criminals are that we ought to abolish this matter of imprisoning witnesses altogether. usually imprisoned." It should read: “Witnesses shall not be unreaAt the present time we have laws, and we should stick to them, provid- sonably detained, nor shall they be confined in any jail.” As it stands, ing that witnesses may be examined and not imprisoned. Hence, I am it means witnesses shall not be unreasonably confined. I presume that in favor of voting down this amendment, and then striking out the the intention is that they shall not be unreasonably detained, and shall words" or confined in any jail or room where criminals are usually con- not be confined in any jail or room where criminals are usually imprisfined,” so that it will read that they shall not be unreasonably detained oned. It should read : “ Witnesses shall not be unreasonably detained, or imprisoned. I do not believe in imprisoning witnesses at all. nor shall they be confined in any jail or room where criminals are usually
MR. NOEL. Mr. Chairman: I have an amendment which I would imprisoned." We should strike out the word “or," and insert the like to offer.
words "nor shall they be." THE CHAIRMAN. There are two amendments already.
MR. VAN DYKE. We cannot get to it until we get back into the MR. JONES. Mr. Chairman: The gentleman from San Joaquin, Convention. Judge Terry, says there are no jails in which there is not a room in THE CHAIRMAN. When the article is taken up in the Convention, which criminals are never confined. I do not know how many there every amendment made in Committee of the Whole will come up in its are. I am not so well acquainted with the jails of the State as the gen- order. You can then vote down the amendment if desired. tleman from San Joaquin, but we have in my own county a very good MR. REYNOLDS. I now again offer my amendment, and I do so for jail, a very strong one, and there is no place whatever of the description the purpose of calling the attention of the Chair to the fact that the comof which he speaks. No Sheriff or Deputy Sheriff ever remains there mittee, on yesterday, adopted the amendment offered by the gentleman longer than to take care of the prisoners and feed them. I think that is from Alameda, Judge Campbell, and upon that ground, I understand, the case in several of the counties.
the Chair ruled my amendment out of order. Now, as another amendMR. NOEL. Mr. Chairman: I think the section sufficiently guarded ment has been adopted this morning that strikes out the whole of the as it is. That would exclude them from being confined in a jail at all, amendment and adopts a substitute or in any room whatever in which criminals are usually confined, and THE CHAIRMAN. The gentleman is mistaken. No amendment if they are to be confined at all they must be confined somewhere else. whatever has been adopted this morning. I think that the section as it reads now sufficiently protects the rights of MR. REYNOLDS. İt is my misfortune to be seated so far from the witnesses without any further amendment or any amendment whatever. center of business as not to be able to understand what is going on at the
MR. VAN DYKE. I withdraw my amendment to strike out "jail or." desk.
TAE CHAIRMAN. The next amendment is to insert, “or persons THE CHAIRMAN. The Secretary will read section seven. charged with crime.”
THE SECRETARY read: MR. VAN DYKE. The object of that amendment is this: it might SEC. 7. In criminal cases the right of trial by jury shall remain. In be understood to mean convicted persons, and I wish to make it apply all cases, except felony, the Legislature may provide by law the number to persons charged with crime.
necessary to constitute a jury, and in all civil cases the number necessary THE CHAIRMAN. The Chairman of the committee seems to forget to render a verdict. that the Committee of the Whole yesterday adopted the amendment of MR. WILSON, of First District. I move that this committee rise and Judge Campbell. The amendments are both out of order.
report back to the Convention sections seven and eight of the draft for a MR. NOEL. I move to amend by adding after the word "crime” preamble and declaration of rights, with the recommendation that they the following words: “But criminals when punished by whipping shall be omitted from the declaration of rights, and that the subject-matter not be stripped naked; nor shall married women ever be whipped by thereof be referred to the Committee on Judiciary and Judicial Departany one except their husbands."
ment to report upon the same in connection with the judicial departTHE CHAIRMAN. The amendment is out of order.
ment. I do this, Mr. Chairman, from the fact that the question of juries MR. WYATT. I move to add to section six the following words: and Grand Juries have been very considerably discussed in the Com“ Provided, corporal punishment shall only be inflicted on male persons mittee on Judiciary. It is an important subject, and one which I preconvicted of the crime of felony."
sume the Convention is hardly prepared at this time to act upon. It THE CHAIRMAN. The amendment is out of order. The committee seems to me that the subject belongs more properly to the judicial has determined already what that portion of the section shall contain. department than it does to the bill of rights. When that is reached the
MR. REYNOLDS. I offer an amendment to the amendment adopted committee will be prepared to act upon the subject of juries and Grand by the committee.
Juries. Of course, the committee, after it shall report to the Convention, THE CHAIRMAN. The amendment is not in order.
will resolve itself back with the Committee of the Whole for the purMR. REYNOLDS. I appeal from the decision of the Chair. I desire pose of considering the balance. to offer this amendment: * But nothing herein contained shall be con- THE CHAIRMÂN. The gentleman from San Francisco, Mr. Wilson, strued to prohibit the infliction of corporal punishment for the crime of moves that the committee rise and report back to the Convention sections embezzlement."
seven and eight of the draft, for a preamble and declaration of rights, MR. WYATT. I second the appeal.
with the recommendation that they be omitted from the declaration of THE CHAIRMAN. It requires three members to appeal from the rights, and that the subject matter be referred to the Committee on decision of the Chair.
Judiciary and Judicial Department. Mr. MCCALLUM. If no further amendments be offered to section MR. HAGER. Mr. Chairman: I would suggest that section thirteen six, I wish to raise the question that the proper way would be to take a be taken into that category, vote on section six, and see if we agree to it after being amended. Now, MR. WILSON, of First District. I accept that amendment. my judgment is that we should take a vote on section six as amended, Mr. MoCALLÚM. I would suggest to the gentleman that there is no and I call for that vote.
necessity of the committee rising. We can pass the sections, and when THE CHAIRMAN. There is no such thing as such a vote in Com- we do rise we will report to the Convention that these sections be mittee of the Whole. No such question can be presented in Committee referred. of the Whole. The sections are read, and if amendments are made THE SECRETARY read : they are all sent back to the Convention, and then amendments can be “ That the committee rise and report back to the Convention sections offered if desired. But no such vote is taken in Committee of the Whole. seven, eight, and thirteen of the draft for a preamble and declaration of
MR. REYNOLDS. I am striving to arrive at an understanding, as to rights, with the recommendation that they be omitted from the declarawhether it is in order to amend section six.
tion of rights, and that the subject-matter thereof be referred to the THE CHAIRMAN. It is in order to amend section six in any other committee on Judiciary and Judicial Department, to report on the same portion of it than that which the Committee of the Whole has already in connection with the judicial department.” adopted.
MR. BARBOUR. I will also suggest that section nine ought to be MR. REYNOLDS. I have no difference to discuss with the Chair, referred, because that involves a very great legal question. That but I do desire a distinct understanding, that there may be a ruling of ought to go to the Judiciary Committee to report upon. the Chair, or by the house, and no misapprehension. I desire to amend MR. VAN DYKE. Mr. Chairman: I have no choice as to where section six as it now stands, and upon that proposition I offer an amend this matter of the jury system goes in the Constitution, and I have no ment. Now, if the Chair rules that amendment out of order, I respect- pride of opinion about this matter, but I would suggest to the Chairman fully take an appeal, and ask the sense of the Convention.
of the Committee on Judiciary and Judicial Department, that the bill of THE CHAIRMAN. There was no second to your demand for an rights is the place where the declaration of the right to a jury is conappeal. The gentleman is out of order. It takes three to call for an tained in all the Constitutions, I believe, without exception. Now, it is appeal under the rule.
true, that in the National Constitution there was not any declaration of MR. HERRINGTON. Mr. Chairman: I move to amend section six rights. That was afterwards discovered to be a great omission, and as follows: Strike out all after the word " inflicted,” and add “the Leg- amendments were at once proposed and adopted which really constitute islature shall provide for taking the depositions of witnesses to be used a declaration of rights. But in all the State Constitutions in reference in criminal cases. Witnesses shall not be unreasonably detained or to the trial by jury, it is contained in the declaration of rights, and it imprisoned after sufficient time and opportunity has been given for tak- strikes me that that is the proper place for it. If it is determined by ing their depositions." I submit that that amendment ought to be the Convention to strike out the right of a Grand Jury, why, then, the made. I am opposed to imprisoning witnesses at all.
matter of regulating the practice in criminal cases can be put in the THE CHAIRMAN. The amendment is out of order. On motion of judicial department. But here the reference to a trial jury, in section Judge Campbell the committee struck out all after the word “inflicted” l'seven, is the declaration of a right: “In criminal cases the right of trial by jury shall remain.” Now that is one of the fundamental rights of MR. MCCALLUM. Mr. Chairman: In the whole number of sections the citizen, and is so recognized in the National Constitution, and in the which fall to the judicial department-from number one to number various State Constitutions. The proper place for that declaration is in nineteen-the subject of juries is not included. All the propositions this bill of rights. If the gentlemen are not prepared now to go on with which have been introduced in this Convention have been very properly that section, we can pass it and go on with others. It does seem to me referred to the Committee on Preamble and Bill of Rights. That is the that we should not go contrary to the principles in every other State in only committee to which they could be properly referred. This proporeference to this declaration of the right of every citizen to a trial by sition, in plain English, is to refer to the Judiciary Committee that jury. That is its proper place here.
business which belongs to the Committee on Preamble and Bill of Now in reference to the suggestion—I do not know whether it was Rights. The plain English of it is that the Committee on the Bill of seconded or not-to transfer the ninth section also. That is in regard to Rights were not competent to advise the Convention sufficiently upon the freedom of speech and of the press. If that is not the place for that, this subject, and that it ought to be referred to the Judiciary Committee. in the bill of rights, I do not know where the place is. So in regard to I have not the fortune, or misfortune, to belong to either of the comthe right of a citizen accused of crime on his trial of meeting his accuser mittees, but I do not believe in this practice. If I correctly understand, face to face; having counsel; having the right of answering; having the the Judiciary Committee itself has not yet reported its own business, cause and nature of the accusation. All these things are fundamental and it has had an extension of one week's time in which to do it. rights of the citizen, and the proper place for them, evidently, is in the They have a great amount of business before them, and the crowding declaration of rights. Therefore I am opposed to the course suggested by of business is not going to be in the committees hereafter, but in the the Chairman of the Judiciary Committee in transferring this declaration Convention. I am opposed to this idea of a committee rising for the of the rights of the citizen to a trial by jury, from the declaration of rights purpose of reporting the business of one committee to another. I do to any other part of the Constitution.
not remember of a single proposition on this subject-or if there is, it is MR. HAGER. Mr. Chairman : I do not understand that the motion exceptional—which has ever been referred to the Judiciary Committee. here is to displace these propositions from the declaration of rights, but if they have taken action-as reported in the papers the other morningto have them considered by the Committee on Judiciary and "Judicial | taking up the report of the committee on their own motion, it does Departments, in connection with the system which they propose before appear to me that that committee ought at least to have waited until they shall be finally adopted by this Convention. That is my under this Convention asked it for its opinion as to the work of any other standing of it.
committee. MR. VAN DYKE. Then I misunderstood it.
Talk about legal questions, sir. The greatest legal questions here in MR. HAGER. The proposition I submitted was not to include sec- the Convention are involved in the article called the declaration of tion thirteen in the plan for a judicial system, but to have it considered rights. There are those in the Convention who, perhaps, may be by the Judiciary Committee. These propositions are frequently taken enabled to vote upon these questions, who are not entirely impressed from the Constitution of the United States, or other Constitutions, and with the importance of having the opinion of the Committee on Judiin the course of printing and reprinting errors have crept in.
ciary upon these questions that belong to another committee. This MR. VAN DYKE. I have no objection if that is the motion of the comes up in its regular order. Business proceeds. A distinct, square Chairman of the Judiciary Committee.
proposition is presented to this Convention in section seven: In crimMR. HAGER. That is the intention. It might as well be understood | inal cases the right of trial by jury shall remain.”. There is a plain, now as any other time that all these propositions, when it comes to the distinct proposition. It does not need the action of the Judiciary Comfinal adjustment of the Constitution, may be changed from one place to mittee to tell us what that plain language means. If we are not for it, another into their proper places. The same proposition may come before let us vote against it. It is a change from the old Constitution, the Convention, and the same proposition may be adopted from differ- but there is no necessity for the Judiciary Committee to inform this ent committees, but when it comes to be adjusted into one complete Convention as to how it ought to act. The Chairman of the Committee whole, why, whenever they are duplicated only one proposition will be on Preamble and Bill of Rights says if the object is to restore it back put in, and that under its proper head. There is a committee appointed there, all right. My judgment is that, as it belongs there, and will have for that purpose.
to be passed upon there, that the matter may just as well be disposed of Mr. VAN DYKE. I am aware of the fact suggested by Judge Hager, here and now. I will be very well satisfied if the Committee on Judithat if one proposition should be adopted, and should be ascertained to ciary perform their own duties, and leave the other committees to perbe in an inappropriate place, it would be changed by the Committee on form theirs. Revision and Adjustment; but the point was that the declaration of the MR. BROWN. Mr. Chairman: I do not intend to detain this body right of the citizen to a trial by jury, that this was the proper place for any length of time, but it appeared from the manner in which this subit. But if the Chairman of the Committee on Judiciary wishes his ject was discussed that the proposition was for this matter contained in committee to consider this declaration in reference to trial by jury, as sections seven, eight, and thirteen to go to the Judiciary Committee, and well as the Grand Jury, I have no objection; but I most certainly object for them to investigate the great judicial principles upon which those to its being transferred from this part of the Constitution to some other sections rest, and to have them presented in a proper form before us. part. If the Chairman of the Judiciary Committee will state that that Now upon a close examination it seems when the proposition is read to is the only object I have no objection.
us that the object was that this should be inserted in the judicial departMR. HÉRRINGTON. Mr. Chairman: I understand that the effect of ment of the Constitution. I feel like Mr. McCallum upon this subject, the motion will be to produce precisely the opposite result from that that if every committee is able to do its own part of the business, and stated by the gentleman from San Francisco, Judge Hager. I under- that which comes immediately under its own revision, within the proper stand that it is a recommendation by this Committee of the Whole to the time, it will be doing exceedingly well. I do not see the propriety of Convention that these propositions, embraced in these various sections, referring this matter. be incorporated into the judiciary system. I ask for the reading of it. Mr. ESTEE. Mr. Chairman: I rise to a point of order; that a motion THE SECRETARY read:
that the committee rise shall be decided without debate. “That the committee rise and report back to the Convention sections THE CHAIRMAN. That is the rule, but the Chair has permitted seven, eight, and thirteen, of the draft for a preamble and declaration of some latitude in order that the proposition might be thoroughly underrights, with the recommendation that they be omitted from the declara- stood. tion of rights, and that the subject matter thereof be referred to the MR. BROWN. I am under the impression, Mr. Chairman, that this Committee on Judiciary and Judicial Department, to report on the same should remain in the bill of rights, and that this body, aside from the in connection with the judicial department.”
Judiciary Committee, is competent to decide upon it. I think it has the MR. HERRINGTON. Precisely the result that I anticipated. It is a capacity to investigate and decide every time. I am therefore opposed recommendation on the part of this Committee of the Whole to the Con- to this being referred to the Judiciary Committee, or being placed in the vention that these propositions be referred to the Judiciary Committee, judicial department of the Constitution, with due respect to every memwith instructions that that committee report upon them in connection ber of every committee of this house. with their report upon the judicial system; and that they be omitted- MR. EDGERTON. Is the question debatable ? that is the language of this resolution—that they be omitted from this THE CHAIRMAN. It is not under the rule, but the Chair has perdeclaration of rights. That is precisely the result that we do not desire. mitted some latitude. Individually I do not desire it. I certainly think that it is not a part MR. EDGERTON. I hope the indulgence of the Chair will be of the procedure, so far as this is concerned, in criminal cases. It is extended to me for about two minutes and a half. Mr. Chairman, when attempted by these sections to confer an absolute right upon the indi- the Committee on Rules made their report they named a committee on vidual, as contradistinguished from the mass of society, and to give judicial department, that being one of the departments of the Constituhim the power to determine that he shall be tried by a jury. Now, I tion. Some gentlemen in the Convention moved that that be changed do submit that their proper place is in the declaration of rights, and not to the Committee on Judiciary and Judicial Department, and the in the judicial system.
reason stated then was that that committee should be an advisory comMost of the provisions embraced in these various sections have been mittee to the Convention, and also to other committees of the Convenso long in use that they are familiar to us all, and we never will under- tion. stand them any better, perhaps. Even if their language should be Now, sir, I do not think that the motion of the gentleman from San changed, there would be a necessity for a new consideration of them; Francisco, the Chairman of this committee, implies any discourtesy to and I apprehend that the way they are now proposed is as good as they the Committee on Preamble and Bill of Rights, or anything that need ever will be. If these sections go to the Committee on Judiciary and move the sensibilities of any gentleman upon this floor. It is well Judicial Department, under this motion, they will come back engrafted understood in parliamentary matters that the Committee on Judiciary in the judicial system. Changes will have been made so far as the of every legislative body occupies that position. In the Senate and arrangement is concerned. I do not undertake to say that the Judiciary Assembly of this State, in the Senate of the United States, in the House Committee would not report them back, to be included in this declara- of Representatives, it is a matter of frequent practice for the Chairmen tion of rights, but the recommendation of the Committee of the Whole of other committees to request that certain matters before them be that they be reported upon in connection with the report on the judicial referred for the consideration and action of the Judiciary Committee. system, is an indication that they are requested to so engraft it upon that I think there is nothing improper in the motion at all, and I desire to system. I submit that they are in their proper position, and that they call the attention of the committee for a moment to one of the reasons ought to be kept just where they are.
why this action should be taken. Look one moment at section seven:
“In criminal cases the right of trial by jury shall remain. In all cases, jury. The consequence has been that it was impossible for defendants, except felony, the Legislature may provide by law the number necessary even when they elected to be tried by the Court, in cases of misdeto constitute a jury, and in all civil cases the number necessary to ren- meanor, to be tried that way; and I submit that they ought to be perder a verdict." It is a very serious question in my mind whether under mitted, if they so elect, to be tried by the Court. It is less expensive in that section the right of trial by jury is not limited to criminal cases, such cases. It certainly would be both to the advantage of the State and that it is left entirely a matter with the Legislature to say whether and to the satisfaction of those against whom the law is invoked. I there shall be any jury at all in civil cases. Section eight involves the bave given the subject some little thought, and in my judgment this is question of the abolition of Grand Juries, and then the gentleman from about the only change that would be either to the advantage of the San Francisco, Mr. Barbour, has suggested that section nine be included, State or to the advantage of the defendants who are to be tried by the and I think very properly. If gentlemen will refer to section four- laws of the State. As to the form of its draft, it may be changed or teen of this draft they will find there provisions which are, to say the altered to suit the taste of either the Judicial Committee or any other least, startling. That proposes a reversal of the rules of jurisprudence committee, or this Committee of the Whole. But it embodies the idea as they prevail all over the United States, so far as I am informed, in which, in my judgment, ought to be laid down in this bill of rights. reference to the subject-matter therein set forth, and rules that have THE CHAIRMAN. The Secretary will read the amendment and the prevailed in this state more than a quarter of a century. They are amendment to the amendment. rules that certainly should be considered by the Judiciary Committee. THE SECRETARY read the amendment offered by Mr. Smith, of I move that we add section fourteen, so that the motion will embrace Santa Clara, as follows: sections seven, eight, nine, thirteen, and fourteen.
“The right of trial by jury shall be secure to all and remain inviolate MR. WILSON, of First District. I accept that suggestion.
forever, but a jury trial may be waived by the parties; but in all trials MR. BARBOUR. I called attention to section nine as illustrating the in civil cases, also criminal offenses below felony, two thirds of the jury impropriety of the motion, and showing that almost every proposition shall be competent to find a verdict.” contains matter which requires judicial investigation. I am in favor of THE SECRETARY read the amendment to the amendment offered the Convention judging of this matter, and of every member deciding by Mr. Herrington, as follows: for himself whether he is in favor of abolishing Grand Juries. It is not “ The right of trial by jury shall be secured to all and remain invioa matter necessary to refer to the Judiciary Committee. Here are sixty late forever; but a jury trial may be waived by the parties in civil lawyers in this Convention—or seventy lawyers--and in the Judiciary actions, and the Legislature may prescribe the number of jurors in civil Committee nineteen lawyers. They have their chance here in this cases and the majority required to render a verdict thereunder; in crimiCommittee of the Whole. I am in favor of going on with this article nal cases amounting only to misdemeanor, defendants shall bave the and not referring it here or there.
right of trial by jury, or by the Court, as they shall elect.” THE CHAIRMAN. The Chair must enforce the rule.
The amendment to the amendment, and the amendment, were both Mr. BARTON. As a member of that committee I would like to be lost. heard a half minute. I hope that the gentleman will accept all the MR. DUDLEY, of San Joaquin. I have a substitute for the original amendments, and that the discretion and good sound judgment of this draft which I desire to submit as an amendment. Convention will vote it down accordingly.
THE SECRETARY read: THE CHAIRMAN. The Secretary will read the motion as now “The right of trial by jury shall be secured to all and remain invioamended.
late forever; but in all cases, civil or criminal, except felony, the LegisTHE SECRETARY read:
lature may provide by law the number necessary to constitute a jury "That the committee rise and report back to the Convention sections and to render a verdict; but in all cases except felony the jury may be seven, eight, nine, thirteen, and fourteen of the draft for a preamble waived by the parties.” and declaration of rights, with the recommendation that they be omit- MR. HALE. ` Mr. Chairman: I am well pleased with the draft of this ted from the declaration of rights, and that the subject matter thereof substitute, except in two points-really, one point. I move to amend be referred to the Committee on Judiciary and Judicial Departinent, to the substitute, by striking out the words " except felony ” where they report on the same in connection with the judicial department.” occur. I can see no reason, either founded in experience or otherwise,
Mr. WILSON, of First District. The addition of these several sec- why it should not be competent for parties to waive trial by jury. tions, some of which ought to be in the bill of rights, makes it neces- MR. DUDLEY, of San Joaquin. I accept the amendment. sary for me to reform the original motion, and I ask to modify it so as to Tak CHAIRMAN. The Secretary will read the amendment as it will read in this way: “That the committee rise and report back sections stand then. seven, eight, nine, thirteen, and fourteen, and that the subject matter THE SECRETARY read: thereof be referred to the Committee on Judiciary and Judicial Depart- “The right of trial by jury shall be secured to all and remain invioment, to report in connection with the same, and that further action on late forever; but in all cases, civil or criminal, the Legislature may prothem be postponed until the coming in of the report of the Committee vide by law the number necessary to constitute a jury and to render a on Judiciary."
verdict; but in all cases the jury may be waived by the parties.” MR. VAN DYKE. I understand that they shall be transferred. I MR. HALE. Now, Mr. Chairman, the proposition becomes a very wish to ascertain what the gentleman's proposition now is. I want to simple one on the basis of this substitute, in its present form. It proascertain whether it is to transfer these four sections to the judicial vides that the right of trial by jury is in violate; second, that while this article?
right of trial by jury is thus in violate, it gives to the parties—not to one MR. WILSON, of First District. No, sir; merely that the further party, but to both parties—the right of waiving trial by jury. I should consideration of them be postponed until the coming in of the report of like to hear from some gentleman if this view is not acceptable, and the Committee on Judiciary and Judicial Department, and that they be founded in experience; and I appeal to the members of the legal frareferred to that committee for consideration.
ternity for an expression upon this point. What reason can be given MR. MILLER. I move that section seventeen be included.
why the parties to any litigation, whether it be civil or criminal, should MR. LARKIN. I move to amend, by including the balance of the not have the right to waive a trial by jury and submit the issues for trial bill of rights.
to the judgment and decision of the Court upon questions law and MR. MCCALLUM. I move to include all the other sections of the fact alike. Constitution that are about legal questions.
Mr. Chairman, I believe I express the average opinion of the legal THE CHAIRMAN. The question is on the motion of the gentleman fraternity of the State of California, and I think I may go farther and from San Francisco, Mr. Wilson.
say that I believe I express the average judgment of the legal fraternity The motion was lost.
of the United States, when I say that, while they would preserve the MR. SMITH, of Santa Clara. I move to amend the section so as to right of trial by jury upon the demand of either party, in all cases it is read as follows: “The right of trial by jury shall be secure to all and safe for the ends of justice and the preservation of private rights and the remain in violate forever; but a jury trial. may be waived by the public interest that it shall be competent for the parties to waive the trial parties; but in all trials in civil cases, also criminal offenses below by jury. Now, as lawyers, we know well that the right of trial by jury felony, two thirds of the jury shall be competent to find a verdict." commenced with the Grand Jury, and then running along eventuated
MR. HERRINGTON. I offer the following amendment to the in a system of trial juries. The reasons upon which this system was amendment: “The right of trial by jury shall be secured to all, and established have in a large measure passed away. Not wholly, sir, yet remain in violate forever; but a jury trial may be waived by the parties the moving interests which prompted their institution have, as a matter in civil actions, and the Legislature may prescribe the number of jurors of fact, passed away. in civil cases and the majority required to render a verdict thereunder; Again, it may be said upon the basis of the original resolution, that in criminal cases, announting only to misdemeanor, defendants shall exception is made in cases of felony. Of course that would include have the right of trial by jury or by the Court as they shall elect.” capital cases. Can anybody tell me why a trial might not take place
The amendment to the amendment, as presented, secures the right before the Court-always conceding that the people and the defendant of trial by jury beyond peradventure, in all cases where it has been here-alike consent to it—in this class of cases ? We select our Judges, we tofore used, and from the form of its language it will bear the same constitute our judiciary, with a view first to their learning, next to their construction that has heretofore been put to that section by the Supreme probity, third to their experience in judicial affairs. When, therefore, Court of this and other States. It has the advantage, therefore, of a the parties to litigation in cases of felony, including even capital cases, determined and fixed meaning to that extent. [Cries of " louder!”] If consent that the Court shall try the issue, what substantial reason can you will listen carefully you will hear. The alterations that may be be given why it should not be done. That it will hasten the adminismade by the Legislature has reference to civil cases--empowering the tration of justice is obvious to the mind of every lawyer. I think this Legislature in those cases to determine the number which shall con- will not be questioned. stitute a jury and the majority to render a verdict. In criminal cases it One of the faults of our jury system as it has come to us in our expepermits the defendant, where the offense amounts only to a mis- rience in this state, and all over the United States, is this: that after you demeanor, to elect whether he will be tried by a jury or by the summon a jury, and go through all the work of a trial, the probable Court.
result is that in about one third
of the criminal cases, and perhaps a less Heretofore, as I understand the practice-in fact in County Courts it proportion of civil cases, you get a verdict. The result is that a trial has been held that it was not competent for our County Courts to try involving immense expense ends in a mistrial and all the work done any case without the intervention of a jury, both a grand and a petit has to be thrown aside, and you must commence again. Now I submit
that we should preserve the system of trial by jury as a right to be with the exception of a certain class of cases a class of frauds which demanded by either party, but we should give the right to a trial by the never do get to a jury, and which do not even get into the shape of an Court, without the intervention of a jury, when the parties to it consent. indictment. But where indictments are found for crimes actually com
This substitute also deals with the question that a less number than a mitted, I appeal to the gentlemen around me if it is not time that, as a full jury may render a verdict. I need not recount the experience of general thing, the guilty do not escape. the bar of the country upon this question. We know, as a matter of Allusion was made to the fact that we have now a larger proportion of fact, in our every day experience, that the ends of justice are not unfre- criminals in our State Prison than there are in any State Prison in the quently entirely defeated by this jury system. You require now a jury Union. Does that show an unwillingness of juries to convict ? Does of twelve. You must not only have a concurrence of judgment of that show that we ought to take from those who are accused the safeeight, nine, ten, or eleven, but you must have the concurrent judgment guards which they now possess ? Now while in civil cases I am perof twelve men to render a verdict. In practical experience it is an fectly willing to leave this to the discretion of the Legislature, while almost every day occurrence that in a trial where the popular judgment, even in cases of misdemeanor I think it simply a doubtful policy to the judgment of the Judge upon the bench, the judgment of the bar and make any change, yet I feel that in cases of felony, in cases where a of the whole community, knowing the facts, all concur; yet you will man's life and liberty is at stake, that there ought to be, as there has find a jury out four, six, ten, twenty, or forty hours, and then come in always been, a unanimous verdict of a jury in order to hold him guilty. and be discharged, finding that some one of the twelve men could not I do not desire to occupy the time of the Convention, and I merely be made to concur with the eleven, and all the work is lost. These submit these few remarks upon this subject, expressing the hope that things, Mr. Chairman, work to defeat the ends of justice. They are the this innovation will not be adopted. source of great complaint; just complaint too. The defeat of justice and Mr. McFARLAND. Mr. Chairman: I was entirely in favor of the the discontent that exists in the popular mind grows out of this condi- substitute as offered, but I am opposed to it with the amendment sugtion of things. I would go farther and would put into this Constitution gested by the gentleman from Placer, Judge Hale, and which was a provision-the substitute leaves the question with the Legislature- accepted. I move to amend by inserting the words “except felony." I that three fourths of a jury, nine out of twelve, might render a verdict, do not object to giving the Legislature the power to say what shall be in place of twelve out of twelve. I am aware that there are gentlemen the number to constitute a jury or find a verdict in all cases except who will agree with this proposition in part, but would still make an felony. I move, therefore, to reinsert in the proposition offered by the exception in cases of felony or perhaps in capital cases. I see no reason gentleman from San Joaquin, Mr. Dudley, the words "except felony." for that distinction. I think that the defeat of justice by reason of the MR. FILCHER. Mr. Chairman: I rise to second the motion made non-agrgement or disagreement of juries is more frequent in these cases by the gentleman from Sacramento, Judge McFarland. I have taken of felony, and especially capital cases, than in any other. A man is upon myself the responsibility of talking about this matter among the put upon trial for his life, or for felony. He has but one thing to do to legal fraternity, and I have found many of them to be in favor of defeat justice, and that is to secure some one man on the jury who will allowing a certain proportion of a jury, say three fourths, to find a vernot consent to a verdict of conviction. It is a thing of very frequent dict in civil cases and in minor criminal cases, but I have found the
Can any reason be given why this should be so. Now, sir, lawyers and the people almost unanimously opposed to allowing any if there were some system by which we could make selection of juries fractional part of a jury to render a verdict in cases of felony. I believe, in these important cases, and could guard equally against imposition, or Mr. Chairman, from the remarks I have heard among members of the incompetency, or interest, or bias, as we can and do with the Judge on Convention upon the subject, that the amendment as offered by the the bench and other judicial functionaries, there might be some reason gentleman from San Joaquin will be adopted, and I believe it ought to for retaining this clause to apply in criminal cases and certain Courts. be adopted. But we know how juries are made up. They are drawn from the body MR. LAINE. It is time for the committee to rise. I move that the of the people. They are examined by the County Judge and the Clerk committee rise, report progress, and ask leave to sit again. upon a simple system prescribed by the Constitution. They are required Carried. to be taxpayers, citizens, residents, etc. You know nothing more about
IN CONVENTION. them than that. They get there on the roll, and the prosecution, at least, is limited to a few challenges. The truth is that you are compelled directed me to report that they have had under consideration the article
THE PRESIDENT. Gentlemen: The Committee of the Whole have to accept the jury pretty much as it comes. Take our Judges of the Supreme Court, sitting here to pass upon
cases on appeal from the various on preamble and declaration of rights, report progress, and ask leave to
sit again. districts. It is not, at least, over three times out of four that all the Judges concur, and yet these are trained lawyers selected for their wis
The hour having arrived, the Convention took the usual recess until dom and for their experience. How much more unreasonable is it to
AFTERNOON SESSION. expect that on these important questions you shall obtain a concurrence of these twelve untrained men. I trust that this substitute will be The Convention reassembled at two o'clock P. M., President Hoge in adopted in its present form, with perhaps the modification that I have the chair. already suggested.
Roll called, and quorum present.
MR. ESTEE. Mr. President: I move that the article reported by the " The right of trial by jury shall be secured to all and remain in violate Committee on Corporations other than Municipal, that has now been forever but in all
cases, civil or criminal, the Legislature may provide by printed and placed on the desks of members, be made the special order law the number necessary to constitute a jury and to render a verdict;
for next Tuesday, immediately after reading the Journal. but in all cases the jury may be waived by the parties.".
MR. CAMPBELL. Would it not be better to make a special order of Mr. CAMPBELL. Mr. Chairman : As I understand it, the amend the article on Chinese for Monday, and dispose of that before taking up
the other matter? ment proposes that in all criminal cases the Legislature shall have the
MR. ESTEE. power to designate the number that must agree upon a verdict; in other probably not be through with this by that time.
Why? I don't see any necessity for it. We will words, if the Legislature say that if eight men out of twelve deem a man guilty of murder that he shall be hung. Now, sir, so far as crimi
MR. WILSON, of First District. "I move that that be fixed for Tuesnal cases are concerned, this is not only a departure from all past practice day next. I do not believe that the Convention will be ready before and all past experience, but it is a departure from the very principle
that time to take it up. upon which the right of trial by jury rests. I think the experience of
MR. BARBOUR. I make the point, that under the rule the business all lawyers who are familar with the subject will show that it is a most must be taken up in the order in which it is reported. mischievous and dangerous innovation. Why, sir, there are plenty of house from making special orders. I do not care particularly about
There is such a rule, but that does not hinder the now on the records of our Supreme Court, where men have been con-making it for Tuesday; but it can be fixed for that date, and then if we victed by juries of twelve men, under the influence of public prejudice
are not ready, it can be put off. or passion existing in their locality at the time, and where the Supreme
The motion to make it a special order for Tuesday prevailed. Court, though it is extremely careful not to interfere on questions of fact, into Committee of the whole, for the purpose of further considering the
MR. VAN DYKE. I move that the Convention now resolve itself have said that the convictions were such outrages upon public justice that they would not permit them to stand, and for that reason have reversed article on preamble and bill of rights." the judgments. All men of experience in these matters know that it
The motion prevailed. often happens that in a particular case public sentiment is excited and
IN COMMITTEE OF THE WHOLE. public feeling aroused to fever heat, and that often with a jury of twelve men it is extremely difficult to obtain anything like a fair trial. We all know that in a very large number of cases jurymen come into the box THE CHAIRMAN. Section seven, of the article on bill of rights, is with their prejudices in the case, and although they think they can try it before the committee. The Secretary will read the section. impartially, the impression in their minds is so strong that it is extremely THE SECRETARY read: difficult to remove it by evidence.
Sec. 7. In criminal cases the right of trial by jury shall remain. In Now, sir, it is against the sentiment of the civilized world to deprive a all cases, except felony, the Legislature may provide by law the number man of his life or to condemn him as a felon, where there is not suffi necessary to constitute a jury, and in all civil cases the number necescient evidence of his guilt to satisfy twelve reasonable men that he is sary to render a verdict. guilty. If you go to diminishing the number, you in that way take MR. LAINE. Mr. Chairman: As I understand the condition of from him the safeguards which have always existed—which are really, the question, it is this: that section seven of the report of the Commitin my judgment, essential for the protection of innocence. So far as tee on Bill of Rights is now before the Committee of the Whole, and this matter of guilty men escaping through the verdicts of juries is con- the substitute before offered, so there are two propositions. cerned, I undertake to say that, at the present time, criminals, as a THE CHAIRMAN. Yes, sir, the gentleman from Santa Clara, Mr. general thing-of course there are, and always will be, exceptions—but Smith, moved an amendment, by way of a substitute, and the gentleas a general thing the criminal justice of the State is well administered man from Santa Clara, Mr. Herrington, moved an amendment to the by the Courts when the cases get there, and the guilty are punished, amendment.
two P. M.
MAKING A SPECIAL ORDER.
BILL OF RIGHTS.
MR. LAINE. I thought those two propositions were voted down. necessary to constitute a jury and to render a verdict; but in all cases
THE CHAIRMAN. Yes, sir, and the question is on the substitute the jury may be waived by the parties.” moved by the gentleman from San Joaquin.
The amendment was rejected. MR. LAINE. So believing I offered a substitute for the two proposi- MR. LAINE. I now offer my amendment as a substitute to the tions.
section as reported by the committee : THE CHAIRMAN. It is not in order. There is an amendment “The right of trial by jury shall be secured to all and remain inviooffered by the gentleman from Sacramento, Mr. McFarland, to the late forever, but a trial by jury may be waived by the parties in all amendment.
cases with the consent of the Court in the manner prescribed by law. Mr. LAINE. Mr. Chairman: As to the proposition reported by the Three fourths of the jury in all civil cases and misdemeanors may Committee on Preamble and Bill of Rights, I am unable to support it, render a verdict, and in such cases any number not exceeding twelve for reasons which I will state in very few words. The very first line shall constitute the jury, if the parties so elect.” takes away the right of trial by jury in civil cases, because it is a well MR. PORTER. I now offer a substitute to the amendment. known canon of law that the mention of one thing is the exclusion of THE SECRETARY read: the other, and for that reason I cannot support the proposition. I do “The right of trial by jury shall be secured to all persons, and shall not believe in taking away this great right in civil cases any more than remain inviolate forever, in all criminal cases amounting to felony, and in criminal cases.
in all civil cases at law involving one hundred dollars in value. In all There is a further objection to the proposition, that it leaves it in the trials of persons accused of crime punishable with death, the jury shall power of the Legislature to destroy the right of a trial by jury, in that consist of fifteen persons, but twelve of them shall be sufficient to render it leaves it to them to fix the number of the jury. The Legislature could a verdict. In all other criminal cases amounting to felony, the jury then fix the number at one or two, and thereby destroy the right of trial shall consist of twelve persons, and nine of them shall be sufficient to by jury altogether or render it of no value whatever. And these substi- render a verdict. In civil cases the jury shall consist of twelve persons, tutes or amendments are open to the same criticism. Therefore I cannot but the parties may agree upon a less number, or waive a jury; and in sustain them. I then desire to say to the Convention that I hope these all civil cases tried by a jury, three fourths of the jury shall be sufficient propositions will be voted down. I believe a majority of this Convention to render a verdict. Cases of misdemeanors, and civil cases at law are in favor of securing the right of trial by jury to all, and then we can involving less than one hundred dollars in value, may be tried with provide that a jury may be waived in all cases with the consent of the such a jury, or without a jury, as the Legislature may direct.” Court. I can see no objections to such a course that can be urged. If THE CHAIRMAN. The question is on the amendment to the amendthis other is voted down, then I shall offer my substitute, which reads in ment.
Lost. “The right of trial by jury shall be secured to all, and remain inviolate
MR. MCFARLAND. I move to amend the substitute of the gentleforever; but a trial by jury may be waived by the parties in all cases,
man from Santa Clara, Mr. Laine, by adding after the word “cases," with the consent of the Court, in the manner prescribed by law. Three where it first occurs, the words, except felony." I do not believe that fourths of the jury, in all civil cases and misdemeanors, may render a
a man should be allowed to waive his right to a trial by jury in any verdict, and in such cases any number not exceeding twelve shall con
case amounting to the dignity of felony; and this is a more important stitute the jury if the parties so elect."
thing than gentlemen seem to think. Men who are charged with crime THE
CHAIRMAN. The question is on the amendment offered by the are not always in a position to know what is for their own interests. In the gentleman from Sacramento, Mr. McFarland, to the amendment of the first place, they fall in the hands of a policeman, who always think that gentleman from San Joaquin, Mr. Dudley, as follows: "The right of a man is guilty whenever he is arrested, and they are the first ones to trial by jury shall be secured to all, and remain inviolate forever; but influence his conduct. They are the first men from whom he derives in all cases, civil or criminal, the Legislature may provide by law the counsel and advice, whether guilty or not; and, sir, we all know what number necessary to constitute a jury and to render a verdict; but in insane things men often do under the advice and counsel of these men, all cases the jury may be waived by the parties.” Mr. McFarland Clear when men are in a position of that kind, and also that a great
when arrested for crime. We know that the judgment is not always moves to reinsert the words “except felony." Mr. McFARLAND. Mr. Chairman: The amendment which I offer of self-possession hardly know what course to take. We know that
many men arrested are innocent men, and even with the usual degree is simply to reinsert the words “except felony” in two places. Now, criminals are often kept confined, without a chance of consulting with the sole purpose and scope of the amendment is simply to take away friends, until their minds have become biased and influenced by the right of the Legislature to limit the number of jurymen in a case of the blandishments of these policemen. I can understand how men in felony. It takes away the right to waive a jury in case of felony, and that way can be induced to waive their right to a trial by jury. I think, I do not think, sir, that the Legislature should have the power in high sir, that Judges also are liable to be biased to some extent, and I do not crimes to lessen the number on a jury; I do not think it will be safe to think, sir, that we should allow this class of citizens to be induced to allow even the defendant to waive a jury in this high class of crimes. give up their right to a trial by jury, and place themselves in the hands I do not believe that any one man, be he Judge or jury, should have of one man. You may say, sir, that they are free agents; that they have the right to pass upon the liberty or the life of any citizen, and we the power to do as they please. Sir, they do not do as they please always, all know that persons charged with crimes frequently act without due and often do not have the judgment to do as they should do, and I do not consideration, and without advice, and might frequently be led to waive believe myself that any man ought to be deprived of his life or liberty a jury, when really their own rights would be jeopardized by so doing, unless by a verdict of twelve of his peers; and it is no satisfactory arguand I do not believe any Court would take the responsibility of passing ment to say that he can demand a jury. We have all of us known men on the life or liberty of a human being. I think a number of men to confess to crimes of which they were entirely innocent, and we can should share the responsibility on an occasion like that.
see very easily how a man might be induced to put his case in the bands In the case of a misdemeanor I think the defendant should have the of a Judge who is so far above him in position. I do not believe that right to waive a trial by jury if he so desires. I can see no harm to come
men charged with high crimes should be allowed to waive their right to of it. It is done in some instances in Justices' Courts; but it is a very a trial by jury. grave question of law whether, under the Constitution, a conviction MR. BARBOUR. Mr. Chairman: I rise for the purpose of seconding without a jury in any criminal offense whatever would be valid. My the amendment offered by the gentleman from Sacramento, Mr. McFarown opinion as a lawyer is that a man cannot waive his right to a trial land. The proposition itself will be such a one as I can vote for, though by jury. It has been held that it could be done, but it is certainly a I should have liked to have had an amendment to prohibit the Legislavery grave question of law. I do not believe he can under the Consti- ture from making the jury to consist of less than a certain number, say tution. No man will claim that a man being tried for murder could six. But on this proposition of allowing parties in cases of felony, to waive a jury, and there is no possible difference between murder and consent to a waiver of a jury, that is utterly and entirely wrong in princhicken stealing before the law; but I think he should have that right ciple. In civil cases the matter only concerns the parties-only involves in cases of misdemeanor.
a question of dollars and cents, but in criminal cases it involves the punMR. BELCHER. I am unable to see any good reason why a defend-ishment by death or imprisonment in the State Prison, and no man has ant cannot be permitted to waive a jury trial in any case. Cases do a right to consent away his rights, and ought not to be punished except arise sometimes when a jury may be waived, even in a case of felony, that punishment and the magnitude or degree of his críme be found by when it would be just as well for the defendant to be tried by the a jury of twelve of his peers. This, sir, is a dangerous innovation. I Judge as by twelve men. . Now, why the right of the defendant to am in no hurry to do away with a system that has endeared itself to waive a jury should be denied is more than I am able to see. I would the hearts of the American people. The people themselves, as well as give the right in any case to the defendant to waive a jury with the the accused, are interested in this matter. I have known one man to consent of the Court. Now, in civil cases, cases now very often come bring a whole jury over to his side by showing them wherein they were before the Courts, when the parties choose to waive a jury, but the mistaken. That is the right of the accused, that is a right which belongs Court wants a jury and calls one; and so in these criminal cases the to the community, and I hope the amendment will be adopted. Court will call a jury if there is any question. But if the Court is MR. REDDY. Mr. Chairman: I believe the object here is to prevent, willing, and the defendant is willing to waive a jury, I am unable to see or rather take some power away from the Legislature with respect to this any good reason why they should not be suffered to do so.
The next matter. Now, we say that a party shall have a right to demand a jury question is about juries in cases of misdemeanor and in civil cases. trial, and then, in the same breath, say that the Legislature shall have Now, I prefer to keep the rule of twelve jurors unless the parties elect the right to say how that jury may be waived. Then does not the to have a smaller number, with the further provision that a less number power go right back to the Legislature to say whether a man shall have than twelve may render a verdict.
a jury trial or not? You say he can demand it, and then we say to the THE CHAIRMAN. The question is on the amendment of the gentle- Legislature, you can say under what conditions; it is for you to say man from Sacramento.
when a man has waived that right-you can say, if you choose, that, for Lost.
instance, unless a man sneezes three times before going into the CourtThe CHAIRMAN. The question is on the substitute offered by the room, his right to a trial by jury is waived. If you are going to give gentleman from San Joaquin, Mr. Dudley: “The right of trial by jury the Legislature any such power as that over the rights held sacred by shall be secured to all, and remain inviolate forever; but in all cases, the American people, you might as well leave it all to the Legislature. civil or criminal, the Legislature may provide by law the number I see how that thing can be remedied, by making the Constitution, or