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rather this amendment of the gentleman, say that in cases of felony, and decisions of Courtsand I remember one gentleman said here the and in all cases, if you like, the right of trial by jury may be expressly other day that if the law library could be locked up and all these books waived; not that the Legislature may take that right away from a man by that the members bring here thrown out of sight, we could go to work implication, as they do in civil cases. Under this provision proposed and build a Constitution out of our heads, out of our own inner conthe Legislature may do precisely what they do in civil cases. We may sciences. I believe he said that would represent the common sense of say, in arguing this case, that we must place some confidence in the the present day. As far as these ancient rights and privileges are conLegislature. If so, let us leave the whole matter to them. I do not cerned, I am not of that opinion. I have a reverence for the opinions believe in leaving a matter of this kind, fraught with so much conse- of the world's greatest men on these subjects. Now, the Court of quence, in such a condition as that. The whole right may be taken Appeals say, in regard to this case: away. Leave the Legislature either full discretion, or leave them none * It is conceded on the part of the people, and it is very clear, that but at all in this matter. I do not believe that any of our American Con- for the consent of the plaintiff in error, he could not lawfully have been stitutions have ever yet gone so far, have ever yet taken a step as far as tried by eleven jurors." this seems to go, in criminal cases.
Recollect that a jury consists of twelve persons, and our Constitution I agree with Judge McFarland entirely, that we should not permit a declares that a trial by jury in all cases shall remain inviolate forever, party charged with crime to waive his right to a trial by jury, for various and that twelve persons shall constitute a jury. The Court goes on to reasons. The reasons are numerous why we should not permit a party say: to waive that right. In the first place, as has been suggested by the “A legal jury, according to the common law, consists of twelve persons. gentleman from Sacramento, Judge McFarland, the first person who Our Constitution (article one, paragraph two,) declares that the trial by interviews a party accused of crime is the police officer or some detective jury, in all cases in which it has heretofore been used, shall remain invioofficer who may take an interest in securing a conviction for their own late forever,' and the revised statutes provide in reference to trials in personal ends, and who may so advise a party, and make him believe criminal cases, that the twelve first jurors who shall appear on being that it will be better for his own interests to submit to a trial by the called, and be approved as indifferent, shall constitute the jury *** Court, instead of calling on a jury of his peers. And the very object “But it is insisted that the plaintiff in error might waive his right to a which the officer may have in view may be the conviction of the party trial by twelve persons, and that having done so, the trial and conviction accused.
in this case were valid. The researches of the counsel have not enabled Again, the prisoner may be led to believe, by various arts, that his them to refer the Court to any case directly in point, either in favor of or interests would be better protected if he be tried before the Court than against the proposition, nor are the Court aware of any such case; and they would be to submit his case to a jury. Some gentlemen related to hence it must be examined and decided in the light of principle, and me a few days ago a circumstance where a party in a civil case was mis- such analogies as reported decisions afford. led in that way. The party overheard the Judge remark, as he came “ There is, obviously, a wide and important distinction between civil out of the Court-room, after the case had been submitted to the jury, suits and criminal prosecutions, as to the legal right of a defendant to and after they had been deliberating on the case for some time—the waive a strict and substantial adherence to the established, constituJudge said : "I don't see why the jury is out so long: I would render tional, statutory, and common law mode and rules of judicial proceeda verdict in a few minutes for the plaintiff.” The plaintiff immediately ings. This distinction arises from the great difference in the nature of went to the defendant and said he would be perfectly willing to try the such cases, in respect to the interests involved and the objects to be case before the Judge on the next trial, upon the testimony already accomplished. taken. The defendant consented, and they did so, and the Court ren- “Civil suits relate to and affect—as to the parties against whom they dered a verdict against the plaintiff. Now suppose a Judge, in times of are brought-only individual rights which are within their individual great political excitement-it would be an easy thing for him to drop control, and which they may part with at their pleasure. The design some remark which would lead the prisoner to believe that the Court of such suits is the enforcement of merely private obligations and duties. was favorable to him, for the purpose of entrapping the prisoner. Now, Any departure from legal rules in the conduct of such suits, with the it is true that our Judges are too honorable to do anything of that kind, consent of the defendants, is, therefore, a voluntary relinquishment of but such Judges as Jeffries have existed, and may exist again. While what belongs to the defendants exclusively; and, hence, there is maniour Judges are honorable men, and no man on this floor has a greater fest propriety in the law allowing such consent to have the effect respect for an honest Judge than I have, but unfortunately there have designed by it, in most cases, as to matters within the jurisdiction of the been bad men placed on the bench, and it is to guard against cases of Courts. The law does recognize the doctrine of waiver to a great extent; that kind that our legislation is now aimed.
in some instances, even to the deprivation of constitutional private It is proposed here to permit a party accused to waive his right to a rights. * But it is settled that even in civil cases consent will trial by jury. He should not be permitted to do so in any case. But if not confer jurisdiction of the subject matter; and where such jurisdiehe may waive it at all, let us, in the fundamental law of the land, say tion exists, a change, by consent, of the mode of proceedings, may be how it shall be waived, and not leave it to the power of the Legislature so extensive as to convert the case from a judicial proceeding into a to do away with the right entirely upon some technicality with which mere arbitration. * The substantial constitution of the legal the party is not familiar. The jury is the proper party to try a man tribunal, and the fundamental mode of its proceeding, are not within accused of crime, any way, for reasons well understood by every lawyer. the power of the parties. It was deemed necessary to insert in our It is a well understood fact that the Judge, who is charged with the present Constitution a provision that 'a jury trial may be waived by administration of criminal justice, becomes, like other officers, like the parties, in all civil cases, in the manner prescribed by law,' to executive officers, calloused, so that it is only necessary to accuse a man authorize even the Legislature to confer a right to dispense with that and immediately his feelings incline against his innocence, while a jury, mode of trial. This is a solemn judgment of the organic law, that, selected from the various callings and professions, not in continual without such a provision, the trial by jury, in cases where it had therecontact with criminals, their minds are freer and in better condition tofore been used, could not be dispensed with. to administer impartial justice. Their sympathies are not already frozen “Criminal prosecutions involve public wrongs,' a breach and violations by continual contact with crime, and it is the very object of the law of public rights and duties,' which affect the whole community, considthat a man accused of crime shall be tried by such men. There are ered as a community, in its social and aggregate capacity.'
The a number of other equally potent reasons why the right of trial by jury end they have in view is the prevention of similar offenses, not atonement should remain inviolate without the power of being waived.
or expiation for crime committed.
* The penalties or punishMR. WICKES. Mr. Chairman: I do not believe in submitting this ments, for the enforcement of which they are a means to the end, are matter to the Legislature. I would rather stand by the usages handed not within the discretion or control of the parties accused; for no one down to us by our fathers in the course of human progress. The prin- has a right, by his own voluntary act, to surrender his liberty or part ciples involved are these: the office of the jury is to acquit, not to con- with his life. The State, the public, have an interest in the preservavíct. In law, a person charged with a crime is supposed to be innocent tion of the liberties and the lives of the citizens, and will not allow until his guilt is undoubtedly proven, and I do not believe that a crim- them to be taken away without due process of law,' when forfeited, as inal should be allowed to waive a jury trial.
they may be, as a punishment for crimes. Criminal prosecutions proMR. BARNES. Mr. Chairman: As far as civil cases are concerned, I ceed on the assumption of such a forfeiture, which, to sustain them, have no objection to that part; that is to say, parties in civil cases may must be ascertained and declared as the law has prescribed. Black waive any constitutional privileges which they may have. But when stone, vol. 4, 189, says: "The King has an interest in all his subjects.' it comes down to a question of administering the criminal law, that is And again, vol. 1,133, that the natural life, being the immediate donaa matter in which the State is interested as well as the individual. I tion of the great Creator, cannot legally be disposed of or destroyed by think it will be a dangerous innovation to put a clause in the Constitu- any individual, neither by the person himself nor by any other of his tion that in any case involving the liberty of the citizen he should not fellow creatures, merely upon their own authority. These considerabe entitled to a fair trial by a jury of his countrymen. I can see no tions make it apparent that the right of a defendant in a criminal prosepossible reason why this change should be made. It is true, it was cution to affect, by consent, the conduct of the case, should be much stated the other day by the gentleman from Alameda, Mr. Campbell, more limited than in civil actions. It should not be permitted to that there had been cases where one man hung the jury. Well, sir, 1 extend so far as to work radical changes in great and leading provisions think if a man is to be hung by a jury he should be hung by the as to the organization of the tribunals or the mode of proceeding prewhole jury, and not by any part of a jury, and he should not be hung scribed by the Constitution and the laws. Effect may justly and safely in any other manner. There is no provision older, or more valuable, be given to such consent in many particulars; and the law does, in than this constitutional provision which says that the right of trial by respect to various matters, regard and act upon it as valid. jury cannot be waived by the prisoner. There is a very celebrated case Objections to jurors may be waived; the Court may be substituted for on that subject to which I call your attention, in the Court of last triers to dispose of challenges to jurors; secondary in place of primary resort, in the City of New York. It was a case of a man accused of evidence may be received; admissions of facts are allowed ; and in murder, and in that case, by the consent of counsel, entered in open similar particulars, as well as in relation to mere formal proceedings Court, one juror was withdrawn and the trial proceeded before eleven generally, consent will render valid what without it would be erroneous. jurors, and when the matter came before a higher Court, they held that A plea of guilty to any indictment, whatever may be the grade of the it was a privilege which he could not waive; that it was not in the inter- crime, will be received and acted upon if it is made clearly to appear est of public justice that he should be allowed to waive it. Now, while that the nature and effect of it are understood by the accused. In such I am aware that some of us haven't much regard for adjudicated cases a case the preliminary investigation of a Grand Jury, with the admis
sion of the accusation in the indictment, is supposed to be a sufficient felony? We are not making criminal law, we are making a Constitusafeguard to the public interests. But when issue is joined upon an tion. It strikes me that the language is very peculiar, and very suscepindictment, the trial must be by the tribunal and in the mode which tible of a different construction, and very uncertain, and I move that the Constitution and laws provide, without any essential change. The the committee now rise, and report it back to the Convention, with the public officer prosecuting for the people has no authority to consent to recommendation that sections seven, eight, nine, thirteen, and fourteen such a change, nor has the defendant.
be referred to the Committee on Judiciary and Judicial Department. I “Applying the above reasoning to the present case, the conclusion certainly think that such a grave and important question should receive necessarily follows, that the consent of the plaintiff in error to the with more careful consideration. drawal of one juror, and that the remaining eleven might render a ver- MR. MCCALLUM. I rise to a point of order. It is that the motion dict, could not lawfully be recognized by the Court, at the circuit, and that the committee rise is debatable, as I learned a few moments ago. was a nullity. If a deficiency of one juror can be waived, there appears MR. HALE. I second the motion that the committee rise. to be no good reason why a deficiency might not be; and it is difficult Division having been called for, the motion was lost by a vote of fiftyto say why, upon the same principle, the entire panel might not be eight ayes to seventy-two noes. dispensed with, and the trial committed to the Court alone. It would MR. EDGERTON. Mr. Chairman: I am altogether opposed to any be a highly dangerous innovation, in reference to criminal cases, upon innovation on the right of trial by jury, as far as it affects a criminal the ancient and invaluable institution of trial by jury, and the Consti- case. And I am also opposed to any change in the law with regard to tution and laws establishing and securing that mode of trial, for the civil cases, that shall not be accompanied with the condition that the Court to allow of any number short of a full panel of twelve jurors, and Legislature may at any time restore it to the old plan. I have found in we think it ought not to be tolerated.
the Constitution of Nevada a provision covering this subject that com“The opinion of the Court of ng's Bench, in the case of Lord Dacres, mends itself to my judgment, and I shall vote against the amendment, tried in the reign of Henry VIII for treason, strongly fortifies the con- and also against the provision as it now stands, for the purpose of offerclusion above expressed. One question in that case was whether the ing that clause in the Nevada Constitution, if I am permitted so to do. prisoner might waive a trial by his peers and be tried by the country; That clause reads as follows: and the Judges agreed that he could not, for the statute of magna charta “The right of trial by jury shall be secured to all, and remain inviowas in the negative, and the prosecution was at the King's suit. * * late forever. A jury trial may be waived by the parties by the consent Woodeson, in his lectures (vol. 1, 346), says, the same was again resolved of the Court in all civil cases, as provided by law. In civil cases, if on the arraignment of Lord Audley, in the seventh year of the reign of three fourths of the jury agree upon a verdict, it shall stand and have Charles I, and that the reason was that the mode of trial was not so the same force and effect as a verdict of the whole jury, provided the properly a privilege of the nobility as a part of the law of the land, like Legislature, by a law passed by three fourths of all the members elected, the trial of commoners by commoners, enacted, or rather declared, by may require a unanimous verdict, notwithstanding this provision." magna charta. In 3 Just., 30, the doctrine is stated that “a nobleman This obviates the objections made by some of the gentlemen, by procannot waive his trial by his peers and put himself upon the trial of the viding that it must be by consent of the Court, and in the mode precountry, that is, of twelve freeholders; for the statute of magna charta scribed by law. It preserves to every man charged with any kind of is that he must be tried per pares, and so it was resolved in Lord Dacres' crime the sacred right of trial by jury. Farther, if, after actual expericase.'
ence, the people should discover that it is unwise, the power is lodged " It is unnecessary to pursue this discussion further; and it remains with the Legislature to restore it as it stood before. I think it is a good only to add, as the result of the foregoing views, that in the opinion of provision. the Court the judgment below should be reversed, and a new trial THE CHAIRMAN. The question is on the amendment to insert the ordered."
words "except felony." Now, sir, I apply that argument to our Constitution. We are to say MR. HAGER. Mr. Chairman: I regret, sir, that the proposition whether we will make an innovation upon these ancient privileges, that before the committee has not been referred to the Judiciary Committee. whenever a man is accused of crime he shall be brought face to face It relates to the administration of justice; it is a very important matter, with twelve of his peers, who shall pass upon the question of his guilt one that we cannot very well manipulate in this large body. The report after hearing all the evidence, and after mature deliberation ; and I of the committee I disagree with, and I presume three fourths of the know of no reason why, if you can try a case with eleven jurors, you Convention will oppose the radical change proposed by the committee cannot just as legally try a case with six jurors, or why you could not that make this report. That would substantially do away with a jury do away with the jury altogether. Sir, I know of nothing that is more altogether, except in criminal cases amounting to felony. But perhaps essential to the rights of the people of these United States than the public sentiment is undergoing a change in regard to the so-called jury right of trial by jury, where twelve good men and true stand between system as known to us under the common law. At common law a jury the man accused of crime and the officers of the law. I say again, I can consists of twelve persons, and every Constitution contains a provision see no reason why any such change should be made with reference to the in relation to trial by jury, which means a jury of twelve men, and any criminal law. It is a right that is sacred to the people, and they will attempt to evade it of course would be a mistrial, when it comes before guard it with a jealous eye. It is a right which has been recognized the Court. But, notwithstanding all this, we have a right to engraft in ever since the existence of free government, and I hope it may continue our Constitution a provision making six, or ten, or eighteen men a to exist as long as time shall last. I hope no change will be attempted jury in criminal or civil cases, because it is the fundamental law, the in our organic law that will affect the right of trial by jury in any case organic law, and we have a right to prescribe rules, and as I said before, that may affect the life or liberty of the citizen.
it is not a question which can be very readily settled in so large a body MR. HALE. Mr. Chairman, would it be permissible to offer an as this. It requires the consultation of some clear-headed men, otheramendment.
wise we will become muddled over it. THE CHAIRMAN. No, sir, not at the present time.
Now, the proposition of my friend from Santa Clara, Mr. Laine, proMR. HALE. The Convention, or rather the Committee of the whole, poses that three fourths of a jury shall render a verdict. I am in favor has not had an opportunity to express its judgment upon the broad of that proposition. The proposed amendment embodied that proposiproposition involved here, and I would like to have a chance to test the tion, which I have here before me. But the last clause of the proposisense of the committee upon a proposition a little broader than that tion says that the jury shall consist of any number less than twelve, if covered by the amendment to the amendment offered by the gentleman the parties agree. "Well, suppose they agree upon a jury of ten; the from Santa Clara, Mr. Laine. For the purpose of illustrating my argu- question comes in, what number constitutes three fourths of ten? If ment, I desire to read an amendment which I have prepared, and you have a jury of twelve, and you get eight out of the twelve to sign a which I shall offer at the proper time:
verdict, you have it. " The right of trial by jury shall be secured to all, and remain invio- Now, in Scotland, the jury system that has prevailed there for years is late forever, but in all cases whatever, except criminal cases, where the this: In criminal or civil cases the jury is composed of eighteen mempunishment may be death, or imprisonment for life, a jury may be bers, and twelve of the eighteen are required to render a verdict. That expressly waived by the parties with consent of the Court. The jury is a very good system, according to my opinion. It has been in force shall consist of twelve persons, except that in all civil cases and crimi- there for years, and has operated very well, while in England it is still nal cases not amounting to felony, the parties may agree upon a less a unanimous verdict of twelve men. I believe here in these United number, and in all cases except criminal cases punishable by death or States, in various of the States, they have changed their jury system, imprisonment for life, a verdict may be rendered by the concurrence of and some of them have abolished jury trials in certain cases, even in three fourths of the jury."
criminal cases. A great many of them have made changes. The party Now, it will be recognized by all that the number of cases of felony undoubtedly waives a jury trial; but it is said here that a party ought tried in our Courts is exceedingly large as compared with the whole not to be allowed to waive a trial by jury. Well, sir, when he comes number of criminal cases; whereas, the number of criminal cases pun- before the Court and pleads guilty, is not that a waiver of jury trial ? ishable by death or imprisonment for life are comparatively few. I take He may come before the Court and say, “I wish to waive a jury, and it that the committee has practically expressed its judgment against simply wish the Court to look into this matter.” Well, if I was the extending these provisions to cases which may involve the taking of Judge, I would say no; I will not consent to a waiver of a jury; I shall life or imprisonment for life. But I would like to test the sense of the not consent to have this burden thrown upon me. Neither would a committee on the question of extending this right of waiver to less than Judge consent, where the damages are of an uncertain character, to have all of the jury in criminal cases not punishable by death or imprison- a jury waived; and I do not think this burden should be imposed upon ment for life. If the committee should reject the present proposition I the Court where the damages are so uncertain that it can only be arrived shall offer this to test the sense of the body.
at approximately any way, or in a case where the judgment may be in MR. ESTEE. This section as reported by the committee reads as fol- the nature of exemplary damages. lows:
Now, since we have this matter here, I will refer to some of the objec“In criminal cases the right of trial by jury shall remain. In all tions. Now, take the Constitutions of Arkansas, of Minnesota, and cases except felony the Legislature may provide by law the number Wisconsin, which read: necessary to constitute a jury, and in all civil cases the number necessary “The right of trial by jury shall remain inviolate, but a jury trial may to render a verdict.”
be waived in all cases.' As I construe that, sir, in all cases except felony, the Legislature may As I understand it, it relates to criminal as well as civil cases. Again, fix the number of the jury. Now, what are they going to do in cases of take the Constitution of New York:
" The trial by jury in all cases in which it has been heretofore used, tion, notwithstanding that they admit in private conversation that it is shall remain inviolate forever; but a jury trial may be waived by the a delusion, desire to perpetuate it. But there is one proposition in which parties in all civil cases in the manner to be prescribed by law.” I am particularly interested, and that is the reduction of the number of
MR. WINANS. That is the language of the Constitution of this jurors. If gentlemen are determined to perpetuate the jury system, I at State.
least, in the interest of the citizens, and of the taxpayers, demand that MR. HAGER. Now I pass again to the Constitution of Maryland: the number shall be reduced. I have the figures here showing the cost
“The parties to any cause may submit the same to the Court for deter- of the jury system in Sacramento County, and multiplying that by mination without the aid of a jury; and the Judge or Judges of any twenty-four, which is the difference between Sacramento County and Court of this state, except the Court of Appeals, shall order and direct the State of California, shows that a reduction of the number of jurors the record of proceedings in any suit or action, issue or petition, present- from twelve to seven would be a saving of three hundred and eighty ment or indictment, pending in such Court, to be transmitted to some thousand dollars a year. And when the time comes I propose to offer other Court (and of a different circuit, if the party applying shall so a substitute, that the number be reduced to seven, and I shall demand elect,) baving jurisdiction in such cases, whenever any party to such to know why and wherefore seven jurors are not as good as seventy, if cause, or the counsel of any party, shall make a suggestion in writing, the interest of the public is considered. I assert that seven jurors are as supported by the affidavit of such party, or his counsel, or other proper good as seventy or seven thousand. For the present I am not at liberty evidence, that the party cannot have a fair or impartial trial in the Court to offer an amendment, but I will make the suggestion, simply to conin which such suit or action, issue or petition, presentment or indict- firm what Judge Hager has said, that there is a very great change in ment is pending, or when the Judges of said Court shall be disqualified popular sentiment, and I think the people are demanding relief from under the provisions of this Constitution to sit in any such suit, action, one end to the other of the country: issue or petition, presentment or indictment," etc.
Here, for instance, we have at the present time a law requiring that Then we take up the Constitution of Michigan:
jurors shall be drawn by the County Judge, and serve one year. About “The right of trial by jury shall remain in violate.
two thirds or three fourths are exempt, from some cause or other, and “In all criminal prosecutions the accused shall have the right to a this expense is all saddled upon the taxpayers. Farmers are taken away speedy and public trial by an impartial jury of the vicinage; to be con- from their farms, and they are complaining loudly and bitterly, for their fronted with the witnesses against him; to have compulsory process for time is taken from them without any compensation. True, they receive obtaining witnesses in his favor; to have the assistance of counsel for two dollars per day, and that pays their board, but their time is a total bis defense; and in all civil cases, in which personal liberty may be loss, and, as I said before, they demand of us that we give them some involved, the trial by jury shall not be refused."
relief; if not entire relief, at least a partial relief, such as would be And this is the Nebraska Constitution:
afforded by the reduction of the number. “The right of trial by jury shall remain inviolate; but the Legisla- MR. ANDREWS. Mr. Chairman: I am in hopes that the amendture may authorize trial by jury of a less number than twelve men, in ment offered by the gentleman from Sacramento, Mr. McFarland, will Courts inferior to the District Court."
be voted down. I also prefer the present Constitution to any ConstituThe point I wish to illustrate is, that we may change the jury system tion I have heard quoted. The jury system is plain and simple. This by a constitutional provision; that we are not bound strictly to adhere to jury system has been in existence for ages, and I think time has vindithe old common law rule of twelve men; that we may depart from that cated the wisdom of ages. I differ with the gentleman from San Franrule. Then we have the Constitution of Nevada, which was referred to cisco, Mr. Hager, when he says that public opinion is against the jury by the gentleman from Sacramento, Mr. Edgerton:
system. I am not in favor of an innovation which I believe to be dan“The right of trial by jury shall be secured to all, and remain invio- gerous to society. In regard to this matter of allowing less than the late forever; but a jury trial may be waived by the parties in all civil whole of the jury to bring in a verdict, in any case, I say this, as has cases in the manner to be prescribed by law; and in civil cases, if three been well said by the gentleman from San Francisco, that I believe in fourths of the jurors agree upon a verdict, it shall stand and have the requiring a unanimous verdict; and I hope that the amendment of the same force and effect as a verdict by the whole jury; provided, the Leg-gentleman from Sacramento, Mr. McFarland, will be voted down. I islature, by a law passed by a two thirds vote of all the members elected will merely say that I will offer this amendment at the time when it to each branch thereof, may require a unanimous verdict, notwithstand will be in order, so as to make the present constitutional provisions coning this provision."
form to the old Constitution: Then we have the Constitution of North Carolina :
“Sec. 3. The right of trial by jury shall be secured to all, and remain "In all issues of fact, joined in any Court, the parties may waive the inviolate forever; but a jury trial may be waived by the parties, in all right to have the same determined by a jury, in which case the finding civil cases, in the manner to be prescribed by law." of the Judge upon the facts shall have the force and effect of a verdict THE CHAIRMAN. The question is on the amendment of the gentleof a jury;"
man from Sacramento, Mr. McFarland. I simply read these various provisions in order that the Convention MR. WILSON, of First District. Mr. Chairman: I do not intend to may understand that we have the right to change the jury system, and speak at length upon this subject. I am satisfied that the Convention make it not only different from what it now is, but in conflict to what is ready for the question, and was ready for it some time ago, and the has been known to be the principles of the common law. In other debate has satisfied me still more upon the truth of that proposition. words, we may say that a jury shall be composed of six men, in all that this section should have gone to the Judiciary Committee I am civil actions; or, in criminal actions we may say that two thirds or three satisfied. The proposition that was presented this morning should have fourths of a jury may render a verdict. And now the matter to be prevailed. The section here which has been reported by the Committee determined is, what is the sentiment of this Convention in regard to on Preamble and Bill of Rights, I will say, without any disrespect to that these different propositions? If we should offer a resolution that a jury committee, is not as neatly drawn, not as compact and clear as it should shall consist of twelve men, that would get at the sentiment of the be. I will call attention to the reading and construction of it: Convention, and all amendments could be formulated on that decision. “In criminal cases the right of trial by jury shall remain." If we should offer a resolution that a verdict might be rendered by two Remain where? It remains in criminal cases and nowhere else. It thirds or three fourths of a jury, that would be a decision as to that part practically abolishes jury trials in civil cases. It especially reserves it of it. But we are here struggling over various propositions without in criminal cases alone, leaving the Legislature untrammeled on that arriving at the judgment of the Convention on any one of them. subject, having the power to adopt or not adopt a jury for civil cases.
As I said before, at the commencement, public opinion is to some The language is not as good in that respect even as section three of the extent undergoing a change. I think it is. A great many men who old bill of rights: “The right of trial by jury shall be secured to all, have reflected upon this subject have serious doubts about the jury sys- and remain inviolate forever," is much stronger and better language; tem as it now exists as a proper mode of administering justice. There and then it follows on: "In all cases," that includes criminal cases, seems to be an impression prevailing that men on the jury may be tam- "except felonies, the Legislature may provide by law the number necpered with. Where you require a unanimous verdict of twelve men, a essary to constitute a jury." They are not obliged to have a jury at all, man who is being tried may have a friend among the twelve who is able but they may provide by law the number necessary to constitute a jury, to defeat the ends of justice. Cases are often seen where one man hangs except in case of felony; there they cannot. In cases of felony there the jury. This practice is used over and over again. Again and again we would be a right remaining to the old common law jury of twelve and a see men of influence and wealth evading punishment in that way, and unanimous verdict; but in any other case the Legislature may provide these things have a tendency to cast a doubt on the wisdom of retaining by law the number necessary to constitute a jury, but it is not obliged the present jury system. Now, let some man of great wealth be indicted to have any jury at all. And then in any civil case it says the Legislafor some crime, and he is put upon trial before a jury of twelve men, ture may prescribe the number to render a verdict, but they are not and if it turns out that one of the jurors, or two or three of them, stand required to have a jury at all in any of these cases. out persistently for acquittal, that is sufficient to create a suspicion that I do not believe that a majority of this Convention are prepared to they may have been tampered with. That is what we do not know. I adopt a section into the Constitution which abolishes jury trials in all am inclined to the conclusion that we will have to dispense with this cases except felonies, or to leave it to the Legislature to determine unanimous verdict on the part of the jury, and take something less than whether, in that great class of crimes called misdemeanors, there shall that; and I hope this Constitution will be so framed as to meet public be a jury or not, as it sees fit, and in civil cases there may be a jury or opinion on this subject.
not, as the Legislature shall determine. That is my interpretation of MR. CAPLES. Mr. Chairman: Mr. Hager has aptly said that public section seven, and if I am correct, why it certainly should be expressed opinion is undergoing a change in regard to the jury system, and he has in such manner that such a construction cannot be placed upon it. I expressed a great deal of trută in a very few words. Mr. Chairman, for am sincere in my construction of it, believing as I have stated, that it forty years I have been a doctor, and I have learned something in regard is capable of this construction-abolishes all right to a trial by jury, to the change he refers to. Forty years ago the popular idea with except in cases of felony; leaves it to the Legislature to determine Americans was the palladium of our liberties. To-day the popular idea, whether, in misdemeanors and civil cases, there shall be a jury or not. even among the legal profession, is that the jury system is the bulwark Now, in regard to the proposition of the gentleman from Santa Clara, of thieves. That is illustrative in some measure of the change of popu- it is clearer, but still I do not think it contains exactly what would be lar sentiment.
the sense of the Convention: “The right of trial by jury shall be But, Mr. Chairman, this is one phase of this question that I particularly secured to all and remain inviolate forever, but trial by jury may be feel interested in. It may be that the legal gentlemen in this Conven- ) waived by the parties in all cases, with the consent of the Court, in the manner prescribed by law.” Now, according to that, in civil cases, the to committees. We have not come to any conclusion yet. For an hour parties themselves cannot control their own case unless by the consent of and a half we have discussed this question, as to what we shall do with the Court. I do not see why, in a civil case, where counsel agree, they this seventh section. Why not vote upon it? Why not return to the cannot waive a jury and have the case determined by the Court. But Committee of the Whole and vote on these two propositions which were this proposition makes the consent of the Court necessary in civil cases before the committee? What light is this Judiciary Committee going to the waiver of a jury. This brings me back again to my proposition to give this Convention that they cannot give it now? This matter bas that this section should go to the Judiciary Committee, and be carefully already been to a committee, and the report of that committee is now considered and reported upon; and without wishing to be considered before the Convention for action. When will this thing end, if we obstinate, I renew my motion that this committee now rise and report take the report of one committee, and without arriving at any concluto the Convention a recommendation that all further action upon sections sion refer it to another committee. In that way every section of every seven and eight be suspended, and the subject matter referred to the article in the Constitution might be referred to different committees Judiciary Committee to report upon the same. However, I will confine before any action has been taken on it. Now, I don't want this whole it to section seven alone. There are some other questions involved here matter to be renewed again. I have listened to all this discussion, and which I have not discussed at all. If it does not go to the Judiciary I would like to have an opportunity to vote on this question this evening, Committee it can be discussed in open Convention. I think some of the and I believe the gentleman's proposition from Santa Clara will be amendments to the Constitution of the United States are involved in adopted, and I make a motion now that we return to the Committee this, but I do not care to discuss them now at this place; therefore I of the Whole, in order to get a vote on it. think it should go to the Judiciary Committee in order to examine it as Mr. TINNIN. I move the previous question. to that matter. And I say it without any disrespect to the members of THE PRESIDENT. The motion is to return to the Committee of the the committee. I know that anything, however skillfully drawn, when Whole. it comes afterward to be carefully looked into and criticised, may be Division being called for, the motion was lost-ayes forty-seven, not a found to be defective; and a person who draws a section may himself majority. see that it is not what he intended it to be; and we have now had a THE PRESIDENT. The motion now is to refer it to the Judiciary chance to lay bare the defects in this section, and it ought to have a committee, according to the recommendation of the Committee of the most careful and critical consideration. It is for these reasons that I Whole. have renewed my motion without any disrespect to the Convention, or The motion prevailed, on a standing vote-ayes eighty-three, a clear to any member of the Convention.
majority. MÉ. HAGER. I offer an amendment to the motion, that the com
RESOLUTION. mittee be instructed to report at an early day in order that the Convention may not be delayed in the consideration of this article. I would Committee in obtaining the sense of the Convention.
MR. BARBOUR. I wish to send up a resolution to assist the Judiciary ask that the committee be instructed to report on Saturday morning, or THE SECRETARY read : to-morrow morning. THE CHAIRMAN. The motion that the committee rise is not debat- criminal cases of the grade of felony should not be denied or interfered with.
Resolved, That it is the sense of this Convention that the common law jury in able. MR. VAN DYKE. I haven't heard any objection.
MR. CAPLES. I offer an amendment, that the number of all juries MR. WILSON. I accept the amendment.
be fixed at seven: THE CHAIRMAN. The motion is that the committee rise, report
“ To provide that all juries shall be composed of seven jurors." back the section, and recommend that it be referred to the Judiciary MR. HOWARD, of Los Angeles. Mr. President: As several of the Committee, with instructions to report to-morrow morning.
committees are anxious to sit, I move that the Convention adjourn until The motion prevailed on a standing vote: ayes, 73; noes, 43.
to-morrow at ten o'clock.
The motion was lost—ayes, 67; noes, 77.
Mr. TURNER. I move to lay the amendment on the table.
THE PRESIDENT. That will carry the resolution there also. now.
The motion prevailed, and the resolution and amendment were tabled. THE PRESIDENT. No, sir; no debate. The report of the Commit- MR. ESTEE. I move that the Convention do now resolve itself into tee of the whole, with its recommendation, is now before the Conven- a Committee of the Whole, for the purpose of considering section eight tion. It is not a debatable question. The motion is now to refer to the of the article on preamble and bill of rights. Judiciary Committee, with instructions.
The motion prevailed. Mr. VAN DYKE. Mr. President: I wish to say this to the members
IN COMMITTEE OF THE WHOLE. of the Convention, that if we had arrived at any conclusion--if we had arrived at some determination here, so that all that was required was to THE CHAIRMAN. The Secretary will read section eight. put it in proper shape-then something would be accomplished by refer- THE SECRETARY read : ring it to the Judiciary Committee. But it must be apparent that we SEC. 8. No person shall be held to answer for a crime, or other public have not arrived at any conclusion whatever as to the framing of this offense, punishable by death, or imprisonment in the State Prison (except section. There is a division of sentiment in this Convention on the in cases of impeachment, and in cases of militia when in actual service, question of whether the common law jury shall be retained in all cases and in the land and naval forces in time of war, or which this State may of felony, and upon the other question of whether in cases of misde keep with the consent of Congress in time of peace), unless on presentmeanor the matter shall be left to the Legislature, and also upon the ques- ment or indictment of a Grand Jury. In all other cases, offenses shall tion of a waiver of jury, and how far it shall extend. We have not be prosecuted by indictment, information, accusation, or complaint, as arrived at any conclusion whatever on these questions, and it will do no concurrent remedies, as may be prescribed by law. A Grand Jury shall good to refer it to the Judiciary Committee. Now, sir, suppose this is consist of not less than fifteen nor more than eighteen persons, two referred to that committee-and' I understand from the debate here that thirds of whom may find an indictment or true bill. The Legislature, the members of that committee differ among themselves on these ques- by a two-thirds vote of all the members elected to each house, may tions-suppose a majority of that committee report a section here, why, abolish and restore the Grand Jury system. we will have to go over this same ground again. We have not advanced MR. EDGERTON. I move that the committee now rise, and report a step. It will still be subject to amendment, and we will have just as back to the Convention sections eight, nine, thirteen, and fourteen, with many amendments here as there are different views upon it in the Con- the recommendation that they be referred to the Judiciary Committee, vention. Now, as Chairman of the Committee on Preamble and Bill of with instructions to report the same back to-morrow morning. As the Rights, I have no pride of opinion in reference to this question. It was gentleman well observed, there are ten sections on which we can work. a compromise section by our committee. I think, however, it is not There is enough to do, and there is every reason in the world why these subject to the criticisms bestowed on it by the Chairman of the Judiciary sections should be referred. Committee. And upon the whole, for myself, I think the best thing MR. WHITE. I move that the whole bill of rights be sent to the this Convention could do is to take the section read by the gentleman Judiciary Committee, as an amendment. from Sacramento, Mr. Edgerton, from the Nevada Constitution. It is MR. FREUD. I move as an amendment, that it be recommitted to certainly an improvement upon ours, and I for one would be willing to the Committee on Preamble and Bill of Rights." adopt it. It leaves the matter somewhat elastic; it provides for a ver
THE CHAIRMAN. That is out of order-we are in Committee of the dict by a two-thirds vote in civil cases, and authorizes the Legislature Whole. The question is now on the motion of the gentleman from Sacto restore the old system in case the new one does not give satisfaction. ramento, Mr. Edgerton, that the committee rise and report the sections I think that is the best thing the Legislature can do under the circum- back, with the recommendation that they be referred to the Judiciary stances. I think it is a wrong idea, whenever a question comes up here Committee, with instructions to report to-morrow morning. that we cannot immediately agree upon, to rush it off to the Judiciary Division being called for the motion prevailed—ayes, 75; noes, 47. Committee. We want first to ascertain the sentiments of this body upon
IN CONVENTION. certain points; find out if we can what they desire to accomplish, so that when it is reported back we will not have to go over the same THE PRESIDENT. Gentlemen: The Committee of the Whole have ground again. It is simply a waste of time, and the long debate we had under consideration the report of the Committee on Preamble and have had over this section has not in any manner indicated the senti- Bill of Rights, and have instructed me to report back to the Convention ments of the Convention as to any one of the points involved.
sections eight, nine, thirteen, and fourteen, with the recommendation MR. MCCALLUM. I am perfectly willing to sit here and listen to that they be referred to the Judiciary Committee, with instructions to any discussion, if at the end of it we can avail ourselves of the benefit report on them to-morrow morning. of it and come to a vote upon the propositions involved. Here is a MR. EDGERTON. I move that the Convention adopt the report of proposition pending, coming from the gentleman from Santa Clara, the Committee of the Whole. which seems to meet with general favor in this Convention. My Mr. FREUD. Is the report capable of being amended now. impression is that it will meet with favor in this Convention. Gentle- THE PRESIDENT. It is a motion to refer to the Judiciary Committee, men say we are not resolved on anything. Well, we can't do anything, and is not amendable. because they won't give us a chance to vote. I must enter my protest MR. FREUD. I move, as an amendment, that it be recommitted to here, once for all, against these motions to rise and refer these matters the Committee on Preamble and Bill of Rights, and these gentlemen
LEAVE OF ABSENCE.
can have the privilege of coming before that committee and stating their Reynolds,
Walker, of Marin, views. I think this is due, as a matter of courtesy and respect to that Rhodes,
Walker, of Tuolumne, committee. I am willing to concede to the Judiciary Committee a great Ringgold,
Waters, deal of learning and knowledge, but there are other committees of just Rolfe,
Webster, as much ability.
Wellin, Judiciary Committee. Gentlemen will all recollect that there have been Shafter,
West, various propositions introduced in this Convention, all of which have Shoemaker,
Wickes, been referred to that committee, and are now pending before it, concern- Shurtleff,
White, ing the Grand and trial jury system. These matters are before that Smith, of Santa Clara, Tully,
Wilson, of Tehama, committee, and have been thoroughly considered. Now if this Conven- Smith, of 4th District, Turner,
Wilson, of 1st District, tion desires to treat that committee right, after sending these various Smith, of San Francisco, Vacquerel,
Winans, propositions before it, after that committee proceeded to consider these Soule,
Wyatt, propositions, and before the committee have had time to make a report, Stedman,
Van Voorhies, Mr. President. to take up the subject matter and finally dispose of it, I think you may Steele, as well dissolve that committee. There are some debatable propositions concerning this jury system, and I think the committee ought to have Berry,
Reddy, an opportunity to make a report before the subject-matter is finally dis- Cross,
Stuart, posed of. There is nothing whatever that the Committee on Preamble Glascock,
Tuttle. and Bill of Rights can take offense at. There are various subject matters Herold, involved here in this report which properly belong to the Judiciary Committee, and matters involving the same subject matter, in part, have been considered by that committee, and they are nearly ready to
Mr. Stuart was granted leave of absence, on account of sickness. report; so I think it is entirely proper that all these sections should go
One day's leave of absence was granted Messrs. Tuttle and Kenny.
Mr. O'DONNELL. I move that the reading of yesterday's Journal to the Judiciary Committee, and let us have unanimity at least, on the part of those who are presumed to know
a little more about juries and be dispensed with.
Carried. jury systems than a committee not composed exclusively of lawyers. I
COMMUNICATIONS. think it is fitting and proper that these sections should be referred to that committee. It will save a great deal of time, as they will present The following communication was received and laid on the table: them in some shape, that this Convention can know how to act. “ To the Honorable Members of the Constitutional Convention of Cali
MR. JONES. Mr. President: It does not seem possible to me that any fornia: time can be saved by such a reference. The mover of that reference, I “The great evils that in our present time are pressing, not only on believe, was the author of the motion or resolution which was adopted the poor but on all classes of society, have their origin not in the fault, by this Convention, that so much of the Constitution as pertained to the crime, or corruption of single persons, or not even in corporations of bill of rights should be referred to the Committee on Preamble and Bill corrupt men, but in the defectiveness of our laws and institutions. The of Rights; that so much of the existing Constitution as pertains to the remedy for said evils can therefore never be gained by a change of perlegislative department should be referred to the Legislative Committee, sons in office, but only by a radical change of our organizations. This and so on through the list. Now it seems to me that this is a violation truth I wish to impress especially upon the minds of the delegates of that rule. We are proceeding to take this matter out of the hands of elected by the Workingmen's party of California. If the leader or Presithe Committee on Bill of Rights before even a vote has been taken ; in dent of this party means really to work for the benefit and welfare of fact, before there has been any expression of opinion as to its merits in the people, he is certainly on a very wrong line by stumping for Ben. the Convention. If this reference would end all controversy I would Butler. most heartily accede to it, but it must be discussed and considered when “The defects under which society suffers are only to be corrected by it comes back from that committee. No committee can bind this Con- establishing a real self-government, the Constitution of which is built vention and I do not see how this is going to save any time.
on the principles laid down in the following sketch, which, to investiMR. FREUD. I call for my amendment.
gate carefully, I, as the speaker of thousands of well-meaning citizens THE PRESIDENT. The question is on the motion to refer to the of California, earnestly beseech your honorable body, Judiciary Committee.
“Very respectfully, The motion prevailed, and the sections were referred.
SKETCH OF THE FRAMEWORK FOR A NEW CONSTITUTION OF CALIFORNIA. At four o'clock P. M., on motion of Mr. Shoemaker, the Convention the general welfare, and secure our rights and liberties, do ordain and
“We, the people of California, in order to establish justice, promote adjourned.
establish this Constitution for the State of California:
“Article I. THIRTY-FIFTH DAY.
GENERAL PRINCIPLES. SACRAMENTO, Friday, November 1st, 1878. “Section 1. All men are by nature free and independent, and have The Convention met in regular session at ten o'clock a. M. President certain inalienable rights, among, which are those of enjoying and Hoge in the chair.
defending life and liberty; acquiring, possessing, and protecting propThe roll was called, and members found in attendance as follows: erty, and pursuing and attaining safety and happiness.
“Sec. 2. All political power is inherent in the people. The citizens
of a free, republican State must never depend from the qualities and Andrews, Estey, Kleine,
good will of single persons, but must carry on all public affairs and Ayers, Evey, Laine,
business themselves, and retain all governmental power in their own
“Sec. 3. All offices of power for single men shall be forever abol-
“Sec. 4. The whole body politic of citizens, divided into districts,
shall rule all political actions.
“ ARTICLE II.
** THE PEOPLE OF CALIFORNIA.
"Section 1. The people of this State are divided into four classes :
a: Citizens; b: Persons who intend to become citizens; c: Persons who Brown, Hager, McCoy,
do not want to become citizens; d: Persons who cannot become citizens. Burt, Hale, McFarland,
“Sec. 2. Citizens are-a: All persons born in this State over eightCampbell, Hall, McNutt,
een years old, without distinction of race or sex; b: All inhabitants of Caples, Harrison, Miller,
this state who are citizens of the United States by birthright, or who Casserly, Harvey, Mills,
have lawfully acquired the right of citizenship in this or any other Chapman,
State of the United States.
" ARTICLE III.
" COXDCCT OF PUBLIC AFFAIRS.
"All political action, conducting of public affairs, and business, is Holmes, Nelson,
done: 1. By the whole body politic of citizens; 2. By the House of Davis, Howard, Neunaber,
State Agents of the people; 3. By the Boards of Municipal Agents of
Ohleyer, Dudley, of San Joaquin, Inman,
" POLITICAL ACTION OF THE PEOPLE. Dudley, of Solano, Johnson,
“ Section 1. It shall be the duty of every citizen, and of every aspiDunlap, Jones, Porter,
rant to citizenship, to take an active part in the political action of the Eagon, Joyce, Prouty,
people of California. The neglect of this duty shall be fined in several
degrees, in the end, by the loss of the right of citizenship.
* Sec. 2. The State of California shall be divided into districts, each