by the Deputy Sheriff, and I think there is no jail in the State that has not apartinents of that kind. MR. LAINE. As I understand it, the amendment is to insert the words "or persons charged with crime." THE CHAIRMAN. The amendment which the Chairman of the committee now offers is to strike out the words "jail or," and the word "usually." and inserted some other words. The gentleman from Santa Clara now moves to strike out these words that the committee have already inserted. The Chair rules that it is out of order. MR. HERRINGTON. I do not insist on it if that is so. THE CHAIRMAN. It is precisely the same language Judge Campbell moved to strike out. MR. HAGER. Mr. Chairman: If I understand the section as it now reads, after the word "crimes" it says: "Witnesses shall not be unreasonably detained, or confined in any jail or room where criminals are usually imprisoned." It should read: "Witnesses shall not be unreait means witnesses shall not be unreasonably confined. I presume that the intention is that they shall not be unreasonably detained, and shall not be confined in any jail or room where criminals are usually imprisoned. It should read:" "Witnesses shall not be unreasonably detained, nor shall they be confined in any jail or room where criminals are usually imprisoned." We should strike out the word "or," and insert the words "nor shall they be." MR. LAINE. Then there are two propositions, an amendment and an amendment to an amendment. Now, Mr. President, it seems to me that we ought to abolish this matter of imprisoning witnesses altogether. At 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 in favor of voting down this amendment, and then striking out the words "or confined in any jail or room where criminals are usually confined," so that it will read that they shall not be unreasonably detained or imprisoned. I do not believe in imprisoning witnesses at all. MR. NOEL. Mr. Chairman: I have an amendment which I would like to offer. are. THE CHAIRMAN. There are two amendments already. MR. JONES. Mr. Chairman: The gentleman from San Joaquin, Judge Terry, says there are no jails in which there is not a room in which criminals are never confined. I do not know how many there I am not so well acquainted with the jails of the State as the gentleman from San Joaquin, but we have in my own county a very good jail, a very strong one, and there is no place whatever of the description of which he speaks. No Sheriff or Deputy Sheriff ever remains there longer than to take care of the prisoners and feed them. I think that is the case in several of the counties. MR. NOEL. Mr. Chairman: I think the section sufficiently guarded as it is. That would exclude them from being confined in a jail at all, or in any room whatever in which criminals are usually confined, and if they are to be confined at all they must be confined somewhere else. I think that the section as it reads now sufficiently protects the rights of witnesses without any further amendment or any amendment whatever. MR. VAN DYKE. I withdraw my amendment to strike out "jail or." | THE CHAIRMAN. The next amendment is to insert, "or persons charged with crime." MR. VAN DYKE. The object of that amendment is this: it might be understood to mean convicted persons, and I wish to make it apply to persons charged with crime. THE CHAIRMAN. The Chairman of the tommittee seems to forget that the Committee of the Whole yesterday adopted the amendment of Judge Campbell. The amendments are both out of order. MR. NOEL. I move to amend by adding after the word "crime" the following words: “But criminals when punished by whipping shall not be stripped naked; nor shall married women ever be whipped by any one except their husbands." THE CHAIRMAN. The amendment is out of order. MR. WYATT. I move to add to section six the following words: "Provided, corporal punishment shall only be inflicted on male persons convicted of the crime of felony." THE CHAIRMAN. The amendment is out of order. The committee has determined already what that portion of the section shall contain. MR. REYNOLDS. I offer an amendment to the amendment adopted by the committee. THE CHAIRMAN. The amendment is not in order. MR. REYNOLDS. I appeal from the decision of the Chair. I desire to offer this amendment: "But nothing herein contained shall be construed to prohibit the infliction of corporal punishment for the crime of embezzlement." MR. WYATT. I second the appeal. THE CHAIRMAN. It requires three members to appeal from the decision of the Chair. MR. MCCALLUM. If no further amendments be offered to section six, I wish to raise the question that the proper way would be to take a vote on section six, and see if we agree to it after being amended. Now, my judgment is that we should take a vote on section six as amended, and I call for that vote. THE CHAIRMAN. There is no such thing as such a vote in Committee of the Whole. No such question can be presented in Committee of the Whole. The sections are read, and if amendments are made they are all sent back to the Convention, and then amendments can be offered if desired. But no such vote is taken in Committee of the Whole. MR. REYNOLDS. I am striving to arrive at an understanding, as to whether it is in order to amend section six. THE CHAIRMAN. It is in order to amend section six in any other portion of it than that which the Committee of the Whole has already adopted. MR. REYNOLDS. I have no difference to discuss with the Chair, but I do desire a distinct understanding, that there may be a ruling of the Chair, or by the house, and no misapprehension. I desire to amend section six as it now stands, and upon that proposition I offer an amendment. Now, if the Chair rules that amendment out of order, I respectfully take an appeal, and ask the sense of the Convention. THE CHAIRMAN. There was no second to your demand for an appeal. The gentleman is out of order. It takes three to call for an appeal under the rule. MR. VAN DYKE. We cannot get to it until we get back into the Convention. THE CHAIRMAN. When the article is taken up in the Convention, every amendment made in Committee of the Whole will come up in its order. You can then vote down the amendment if desired. MR. REYNOLDS. I now again offer my amendment, and I do so for the purpose of calling the attention of the Chair to the fact that the committee, on yesterday, adopted the amendment offered by the gentleman from Alameda, Judge Campbell, and upon that ground, I understand, the Chair ruled my amendment out of order. Now, as another amendment has been adopted this morning that strikes out the whole of the amendment and adopts a substitute THE CHAIRMAN. The gentleman is mistaken. No amendment whatever has been adopted this morning. MR. REYNOLDS. It is my misfortune to be seated so far from the center of business as not to be able to understand what is going on at the desk. THE CHAIRMAN. The Secretary will read section seven. THE SECRETARY read: SEC. 7. In criminal cases the right of trial by jury shall remain. In all cases, except felony, the Legislature may provide by law the number necessary to constitute a jury, and in all civil cases the number necessary to render a verdict. MR. WILSON, of First District. I move that this committee rise and report back to the Convention sections seven and eight of the draft for a preamble and declaration of rights, with the recommendation that they be omitted from the declaration of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department to report upon the same in connection with the judicial department. I do this, Mr. Chairman, from the fact that the question of juries and Grand Juries have been very considerably discussed in the Committee on Judiciary. It is an important subject, and one which I presume the Convention is hardly prepared at this time to act upon. It seems to me that the subject belongs more properly to the judicial department than it does to the bill of rights. When that is reached the committee will be prepared to act upon the subject of juries and Grand Juries. Of course, the committee, after it shall report to the Convention, will resolve itself back with the Committee of the Whole for the purpose of considering the balance. THE CHAIRMAN. The gentleman from San Francisco, Mr. Wilson, moves that the committee rise and report back to the Convention sections seven and eight of the draft, for a preamble and declaration of rights, with the recommendation that they be omitted from the declaration of rights, and that the subject-matter be referred to the Committee on Judiciary and Judicial Department. MR. HAGER. Mr. Chairman: I would suggest that section thirteen be taken into that category. MR. WILSON, of First District. I accept that amendment. MR. MCCALLUM. I would suggest to the gentleman that there is no necessity of the committee rising. We can pass the sections, and when we do rise we will report to the Convention that these sections be referred. THE SECRETARY read: "That the committee rise and report back to the Convention sections seven, eight, and thirteen of the draft for a preamble and declaration of rights, with the recommendation that they be omitted from the declaration of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department, to report on the same in connection with the judicial department." MR. BARBOUR. I will also suggest that section nine ought to be referred, because that involves a very great legal question. That ought to go to the Judiciary Committee to report upon. MR. VAN DYKE. Mr. Chairman: I have no choice as to where this matter of the jury system goes in the Constitution, and I have no pride of opinion about this matter, but I would suggest to the Chairman of the Committee on Judiciary and Judicial Department, that the bill of rights is the place where the declaration of the right to a jury is contained in all the Constitutions, I believe, without exception. Now, it is 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 imprisoned after sufficient time and opportunity has been given for taking their depositions." I submit that that amendment ought to be made. I am opposed to imprisoning witnesses at all. THE CHAIRMAN. The amendment is out of order. On motion of Judge Campbell the committee struck out all after the word "inflicted" to the trial by jury, it is contained in the declaration of rights, and it strikes me that that is the proper place for it. If it is determined by the Convention to strike out the right of a Grand Jury, why, then, the matter of regulating the practice in criminal cases can be put in the judicial department. But here the reference to a trial jury, in section '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 the citizen, and is so recognized in the National Constitution, and in the various State Constitutions. The proper place for that declaration is in this bill of rights. If the gentlemen are not prepared now to go on with that section, we can pass it and go on with others. It does seem to me that we should not go contrary to the principles in every other State in reference to this declaration of the right of every citizen to a trial by jury. That is its proper place here. Now in reference to the suggestion-I do not know whether it was seconded or not-to transfer the ninth section also. That is in regard to the freedom of speech and of the press. If that is not the place for that, in the bill of rights, I do not know where the place is. So in regard to the right of a citizen accused of crime on his trial of meeting his accuser face to face; having counsel; having the right of answering; having the cause and nature of the accusation. All these things are fundamental rights of the citizen, and the proper place for them, evidently, is in the declaration of rights. Therefore I am opposed to the course suggested by the Chairman of the Judiciary Committee in transferring this declaration of the rights of the citizen to a trial by jury, from the declaration of rights to any other part of the Constitution. MR. HAGER. Mr. Chairman: I do not understand that the motion here is to displace these propositions from the declaration of rights, but to have them considered by the Committee on Judiciary and Judicial Departments, in connection with the system which they propose before they shall be finally adopted by this Convention. That is my understanding of it. MR. VAN DYKE. Then I misunderstood it. MR. HAGER. The proposition I submitted was not to include section thirteen in the plan for a judicial system, but to have it considered by the Judiciary Committee. These propositions are frequently taken from the Constitution of the United States, or other Constitutions, and in the course of printing and reprinting errors have crept in. MR. VAN DYKE. I have no objection if that is the motion of the Chairman of the Judiciary Committee. MR. HAGER. That is the intention. It might as well be understood now as any other time that all these propositions, when it comes to the final adjustment of the Constitution, may be changed from one place to another into their proper places. The same proposition may come before the Convention, and the same proposition may be adopted from different committees, but when it comes to be adjusted into one complete whole, why, whenever they are duplicated only one proposition will be put in, and that under its proper head. There is a committee appointed for that purpose. MR. VAN DYKE. I am aware of the fact suggested by Judge Hager, that if one proposition should be adopted, and should be ascertained to be in an inappropriate place, it would be changed by the Committee on Revision and Adjustment; but the point was that the declaration of the right of the citizen to a trial by jury, that this was the proper place for it. But if the Chairman of the Committee on Judiciary wishes his committee to consider this declaration in reference to trial by jury, as well as the Grand Jury, I have no objection; but I most certainly object to its being transferred from this part of the Constitution to some other part. If the Chairman of the Judiciary Committee will state that that is the only object I have no objection. MR. HERRINGTON. Mr. Chairman: I understand that the effect of the motion will be to produce precisely the opposite result from that stated by the gentleman from San Francisco, Judge Hager. I understand that it is a recommendation by this Committee of the Whole to the Convention that these propositions, embraced in these various sections, be incorporated into the judiciary system. I ask for the reading of it. THE SECRETARY read: "That the committee rise and report back to the Convention sections seven, eight, and thirteen, of the draft for a preamble and declaration of rights, with the recommendation that they be omitted from the declaration of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department, to report on the same in connection with the judicial department." MR. HERRINGTON. Precisely the result that I anticipated. It is a recommendation on the part of this Committee of the Whole to the Convention that these propositions be referred to the Judiciary Committee, with instructions that that committee report upon them in connection with their report upon the judicial system; and that they be omittedthat is the language of this resolution-that they be omitted from this declaration of rights. That is precisely the result that we do not desire. Individually I do not desire it. I certainly think that it is not a part of the procedure, so far as this is concerned, in criminal cases. It is attempted by these sections to confer an absolute right upon the individual, as contradistinguished from the mass of society, and to give him the power to determine that he shall be tried by a jury. Now, I do submit that their proper place is in the declaration of rights, and not in the judicial system. Most of the provisions embraced in these various sections have been so long in use that they are familiar to us all, and we never will understand them any better, perhaps. Even if their language should be changed, there would be a necessity for a new consideration of them; and I apprehend that the way they are now proposed is as good as they ever will be. If these sections go to the Committee on Judiciary and Judicial Department, under this motion, they will come back engrafted in the judicial system. Changes will have been made so far as the arrangement is concerned. I do not undertake to say that the Judiciary Committee would not report them back, to be included in this declaration of rights, but the recommendation of the Committee of the Whole that they be reported upon in connection with the report on the judicial system, is an indication that they are requested to so engraft it upon that system. I submit that they are in their proper position, and that they ought to be kept just where they are. MR. MCCALLUM. Mr. Chairman: In the whole number of sections which fall to the judicial department-from number one to number nineteen-the subject of juries is not included. All the propositions which have been introduced in this Convention have been very properly referred to the Committee on Preamble and Bill of Rights. That is the only committee to which they could be properly referred. This proposition, in plain English, is to refer to the Judiciary Committee that business which belongs to the Committee on Preamble and Bill of Rights. The plain English of it is that the Committee on the Bill of Rights were not competent to advise the Convention sufficiently upon this subject, and that it ought to be referred to the Judiciary Committee. I have not the fortune, or misfortune, to belong to either of the committees, but I do not believe in this practice. If I correctly understand, the Judiciary Committee itself has not yet reported its own business, and it has had an extension of one week's time in which to do it. They have a great amount of business before them, and the crowding of business is not going to be in the committees hereafter, but in the Convention. I am opposed to this idea of a committee rising for the purpose of reporting the business of one committee to another. I do not remember of a single proposition on this subject-or if there is, it is exceptional-which has ever been referred to the Judiciary Committee. If they have taken action-as reported in the papers the other morningtaking up the report of the committee on their own motion, it does appear to me that that committee ought at least to have waited until this Convention asked it for its opinion as to the work of any other committee. Talk about legal questions, sir. The greatest legal questions here in the Convention are involved in the article called the declaration of rights. There are those in the Convention who, perhaps, may be enabled to vote upon these questions, who are not entirely impressed with the importance of having the opinion of the Committee on Judiciary upon these questions that belong to another committee. This comes up in its regular order. Business proceeds. A distinct, square proposition is presented to this Convention in section seven: "In criminal cases the right of trial by jury shall remain." There is a plain, distinct proposition. It does not need the action of the Judiciary Committee to tell us what that plain language means. If we are not for it, let us vote against it. It is a change from the old Constitution, but there is no necessity for the Judiciary Committee to inform this Convention as to how it ought to act. The Chairman of the Committee on Preamble and Bill of Rights says if the object is to restore it back there, all right. My judgment is that, as it belongs there, and will have to be passed upon there, that the matter may just as well be disposed of here and now. I will be very well satisfied if the Committee on Judiciary perform their own duties, and leave the other committees to perform theirs. MR. BROWN. Mr. Chairman: I do not intend to detain this body any length of time, but it appeared from the manner in which this subject was discussed that the proposition was for this matter contained in sections seven, eight, and thirteen to go to the Judiciary Committee, and for them to investigate the great judicial principles upon which those sections rest, and to have them presented in a proper form before us. Now upon a close examination it seems when the proposition is read to us that the object was that this should be inserted in the judicial department of the Constitution. I feel like Mr. McCallum upon this subject, that if every committee is able to do its own part of the business, and that which comes immediately under its own revision, within the proper time, it will be doing exceedingly well. I do not see the propriety of referring this matter. MR. ESTEE. Mr. Chairman: I rise to a point of order; that a motion that the committee rise shall be decided without debate. THE CHAIRMAN. That is the rule, but the Chair has permitted some latitude in order that the proposition might be thoroughly understood. MR. BROWN. I am under the impression, Mr. Chairman, that this should remain in the bill of rights, and that this body, aside from the Judiciary Committee, is competent to decide upon it. I think it has the capacity to investigate and decide every time. I am therefore opposed to this being referred to the Judiciary Committee, or being placed in the judicial department of the Constitution, with due respect to every member of every committee of this house. MR. EDGERTON. Is the question debatable? THE CHAIRMAN. It is not under the rule, but the Chair has permitted some latitude. MR. EDGERTON. I hope the indulgence of the Chair will be extended to me for about two minutes and a half. Mr. Chairman, when the Committee on Rules made their report they named a committee on judicial department, that being one of the departments of the Constitution. Some gentlemen in the Convention moved that that be changed to the Committee on Judiciary and Judicial Department, and the reason stated then was that that committee should be an advisory committee to the Convention, and also to other committees of the Convention. Now, sir, I do not think that the motion of the gentleman from San Francisco, the Chairman of this committee, implies any discourtesy to the Committee on Preamble and Bill of Rights, or anything that need move the sensibilities of any gentleman upon this floor. It is well understood in parliamentary matters that the Committee on Judiciary of every legislative body occupies that position. In the Senate and Assembly of this State, in the Senate of the United States, in the House of Representatives, it is a matter of frequent practice for the Chairmen of other committees to request that certain matters before them be referred for the consideration and action of the Judiciary Committee. I think there is nothing improper in the motion at all, and I desire to call the attention of the committee for a moment to one of the reasons why this action should be taken. Look one moment at section seven: jury. The consequence has been that it was impossible for defendants, even when they elected to be tried by the Court, in cases of misdemeanor, to be tried that way; and I submit that they ought to be permitted, if they so elect, to be tried by the Court. It is less expensive in such cases. It certainly would be both to the advantage of the State and to the satisfaction of those against whom the law is invoked. I have given the subject some little thought, and in my judgment this is about the only change that would be either to the advantage of the State or to the advantage of the defendants who are to be tried by the altered to suit the taste of either the Judicial Committee or any other committee, or this Committee of the Whole. But it embodies the idea which, in my judgment, ought to be laid down in this bill of rights. THE CHAIRMAN. The Secretary will read the amendment and the amendment to the amendment. "In criminal cases the right of trial by jury shall remain. In all cases, except felony, the Legislature may provide by law the number necessary to constitute a jury, and in all civil cases the number necessary to render a verdict." It is a very serious question in my mind whether under that section the right of trial by jury is not limited to criminal cases, and that it is left entirely a matter with the Legislature to say whether there shall be any jury at all in civil cases. Section eight involves the question of the abolition of Grand Juries, and then the gentleman from San Francisco, Mr. Barbour, has suggested that section nine be included, 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 least, startling. That proposes a reversal of the rules of jurisprudence as they prevail all over the United States, so far as I am informed, in reference to the subject-matter therein set forth, and rules that have, prevailed in this State more than a quarter of a century. They are rules that certainly should be considered by the Judiciary Committee. I move that we add section fourteen, so that the motion will embrace sections seven, eight, nine, thirteen, and fourteen. MR. WILSON, of First District. I accept that suggestion. MR. BARBOUR. I called attention to section nine as illustrating the impropriety of the motion, and showing that almost every proposition contains matter which requires judicial investigation. I am in favor of the Convention judging of this matter, and of every member deciding for himself whether he is in favor of abolishing Grand Juries. It is not a matter necessary to refer to the Judiciary Committee. Here are sixty lawyers in this Convention-or seventy lawyers-and in the Judiciary Committee nineteen lawyers. They have their chance here in this Committee of the Whole. I am in favor of going on with this article and not referring it here or there. THE CHAIRMAN. The Chair must enforce the rule. MR. BARTON. As a member of that committee I would like to be heard a half minute. I hope that the gentleman will accept all the amendments, and that the discretion and good sound judgment of this Convention will vote it down accordingly. THE CHAIRMAN. The Secretary will read the motion as now amended. THE SECRETARY read: "That the committee rise and report back to the Convention sections seven, eight, nine, thirteen, and fourteen of the draft for a preamble and declaration of rights, with the recommendation that they be omitted from the declaration of rights, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department, to report on the same in connection with the judicial department.” MR. WILSON, of First District. The addition of these several sections, some of which ought to be in the bill of rights, makes it necessary for me to reform the original motion, and I ask to modify it so as to read in this way: "That the committee rise and report back sections seven, eight, nine, thirteen, and fourteen, and that the subject-matter thereof be referred to the Committee on Judiciary and Judicial Department, to report in connection with the same, and that further action on them be postponed until the coming in of the report of the Committee on Judiciary." MR. VAN DYKE. I understand that they shall be transferred. I wish to ascertain what the gentleman's proposition now is. I want to ascertain whether it is to transfer these four sections to the judicial article? MR. WILSON, of First District. No, sir; merely that the further consideration of them be postponed until the coming in of the report of the Committee on Judiciary and Judicial Department, and that they be referred to that committee for consideration. MR. MILLER. I move that section seventeen be included. MR. LARKIN. I move to amend, by including the balance of the bill of rights. MR. MCCALLUM. I move to include all the other sections of the Constitution that are about legal questions. THE SECRETARY read the amendment offered by Mr. Smith, of Santa Clara, as follows: "The right of trial by jury shall be secure to all and remain inviolate forever, but a jury trial may be waived by the parties; but in all trials in civil cases, also criminal offenses below felony, two thirds of the jury shall be competent to find a verdict." THE SECRETARY read the amendment to the amendment offered by Mr. Herrington, as follows: "The right of trial by jury shall be secured to all and remain inviolate forever; but a jury trial may be waived by the parties in civil actions, and the Legislature may prescribe the number of jurors in civil cases and the majority required to render a verdict thereunder; in criminal cases amounting only to misdemeanor, defendants shall have the right of trial by jury, or by the Court, as they shall elect." The amendinent to the amendment, and the amendment, were both lost. MR. DUDLEY, of San Joaquin. I have a substitute for the original draft which I desire to submit as an amendment. THE SECRETARY read: "The right of trial by jury shall be secured to all and remain inviolate forever; but in all cases, civil or criminal, except felony, the Legislature may provide by law the number necessary to constitute a jury and to render a verdict; but in all cases except felony the jury may be waived by the parties." MR. HALE. Mr. Chairman: I am well pleased with the draft of this substitute, except in two points-really, one point. I move to amend the substitute, by striking out the words "except felony " where they occur. I can see no reason, either founded in experience or otherwise, why it should not be competent for parties to waive trial by jury. MR. DUDLEY, of San Joaquin. I accept the amendment. THE CHAIRMAN. The Secretary will read the amendment as it will stand then. THE SECRETARY read: "The right of trial by jury shall be secured to all and remain inviolate forever; but in all cases, civil or criminal, the Legislature may provide by law the number necessary to constitute a jury and to render a verdict; but in all cases the jury may be waived by the parties." MR. HALE. Now, Mr. Chairman, the proposition becomes a very simple one on the basis of this substitute, in its present form. It provides that the right of trial by jury is inviolate; second, that while this right of trial by jury is thus inviolate, it gives to the parties-not to one party, but to both parties-the right of waiving trial by jury. I should like to hear from some gentleman if this view is not acceptable, and founded in experience; and I appeal to the members of the legal fraternity for an expression upon this point. What reason can be given why the parties to any litigation, whether it be civil or criminal, should not have the right to waive a trial by jury and submit the issues for trial to the judgment and decision of the Court upon questions of law and fact alike. 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. The motion was lost. MR. SMITH, of Santa Clara. I move to amend the section so as to read as follows: "The right of trial by jury shall be secure to all and remain inviolate forever; but a jury trial may be waived by the parties; but in all trials in civil cases, also criminal offenses below felony, two thirds of the jury shall be competent to find a verdict." MR. HERRINGTON. I offer the following amendment to the amendment: "The right of trial by jury shall be secured to all, and remain inviolate forever; but a jury trial may be waived by the parties in civil actions, and the Legislature may prescribe the number of jurors in civil cases and the majority required to render a verdict thereunder; in criminal cases, amounting only to misdemeanor, defendants shall have the right of trial by jury or by the Court as they shall elect." Mr. Chairman, I believe I express the average opinion of the legal say that I believe I express the average judgment of the legal fraternity of the United States, when I say that, while they would preserve the right of trial by jury upon the demand of either party, in all cases it is safe for the ends of justice and the preservation of private rights and the public interest that it shall be competent for the parties to waive the trial by jury. Now, as lawyers, we know well that the right of trial by jury commenced with the Grand Jury, and then running along eventuated in a system of trial juries. The reasons upon which this system was established have in a large measure passed away. Not wholly, sir, yet the moving interests which prompted their institution have, as a matter of fact, passed away. Again, it may be said upon the basis of the original resolution, that exception is made in cases of felony. Of course that would include capital cases. Can anybody tell me why a trial might not take place before the Court-always conceding that the people and the defendant alike consent to it-in this class of cases? We select our Judges, we constitute our judiciary, with a view first to their learning, next to their probity, third to their experience in judicial affairs. When, therefore, the parties to litigation in cases of felony, including even capital cases, consent that the Court shall try the issue, what substantial reason can be given why it should not be done. That it will hasten the administration of justice is obvious to the mind of every lawyer. I think this will not be questioned. The amendment to the amendment, as presented, secures the right of trial by jury beyond peradventure, in all cases where it has been heretofore used, and from the form of its language it will bear the same construction that has heretofore been put to that section by the Supreme Court of this and other States. It has the advantage, therefore, of a determined and fixed meaning to that extent. [Cries of" louder!"] If you will listen carefully you will hear. The alterations that may be made by the Legislature has reference to civil cases-empowering the Legislature in those cases to determine the number which shall constitute 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 proportion of civil cases, you get a verdict. The result is that a trial involving immense expense ends in a mistrial and all the work done has to be thrown aside, and you must commence again. Now I submit Heretofore, as I understand the practice-in fact in County Courts it has been held that it was not competent for our County Courts to try any case without the intervention of a jury, both a grand and a petit with the exception of a certain class of cases-a class of frauds which never do get to a jury, and which do not even get into the shape of an indictment. But where indictments are found for crimes actually committed, I appeal to the gentlemen around me if it is not time that, as a general thing, the guilty do not escape. Allusion was made to the fact that we have now a larger proportion of criminals in our State Prison than there are in any State Prison in the Union. Does that show an unwillingness of juries to convict? Does that show that we ought to take from those who are accused the safeguards which they now possess? Now while in civil cases I am perfectly willing to leave this to the discretion of the Legislature, while even in cases of misdemeanor I think it simply a doubtful policy to make any change, yet I feel that in cases of felony, in cases where a man's life and liberty is at stake, that there ought to be, as there has always been, a unanimous verdict of a jury in order to hold him guilty. I do not desire to occupy the time of the Convention, and I merely submit these few remarks upon this subject, expressing the hope that this innovation will not be adopted. that we should preserve the system of trial by jury as a right to be demanded by either party, but we should give the right to a trial by the Court, without the intervention of a jury, when the parties to it consent. This substitute also deals with the question that a less number than a full jury may render a verdict. I need not recount the experience of the bar of the country upon this question. We know, as a matter of fact, in our every day experience, that the ends of justice are not unfrequently entirely defeated by this jury system. You require now a jury of twelve. You must not only have a concurrence of judgment of eight, nine, ten, or eleven, but you must have the concurrent judgment of twelve men to render a verdict. In practical experience it is an almost every day occurrence that in a trial where the popular judgment, the judgment of the Judge upon the bench, the judgment of the bar and of the whole community, knowing the facts, all concur; yet you will find a jury out four, six, ten, twenty, or forty hours, and then come in and be discharged, finding that some one of the twelve men could not be made to concur with the eleven, and all the work is lost. These things, Mr. Chairman, work to defeat the ends of justice. They are the source of great complaint; just complaint too. The defeat of justice and the discontent that exists in the popular mind grows out of this condition of things. I would go farther and would put into this Constitution 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, in place of twelve out of twelve. I am aware that there are gentlemen who will agree with this proposition in part, but would still make an exception in cases of felony or perhaps in capital cases. I see no reason for that distinction. I think that the defeat of justice by reason of the non-agreement or disagreement of juries is more frequent in these cases of felony, and especially capital cases, than in any other. A man is put upon trial for his life, or for felony. He has but one thing to do to defeat justice, and that is to secure some one man on the jury who will not consent to a verdict of conviction. It is a thing of very frequent Occurrence. Can any reason be given why this should be so. Now, sir, if there were some system by which we could make selection of juries in these important cases, and could guard equally against imposition, or incompetency, or interest, or bias, as we can and do with the Judge on the bench and other judicial functionaries, there might be some reason for retaining this clause to apply in criminal cases and certain Courts. But we know how juries are made up. They are drawn from the body of the people. They are examined by the County Judge and the Clerk upon a simple system prescribed by the Constitution. They are required to be taxpayers, citizens, residents, etc. You know nothing more about 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 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 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 wisdom and for their experience. How much more unreasonable is it to expect that on these important questions you shall obtain a concurrence of these twelve untrained men. I trust that this substitute will be adopted in its present form, with perhaps the modification that I have already suggested. MR. CAMPBELL. I would like to hear the amendment read as proposed to be amended. THE SECRETARY read: 66 The right of trial by jury shall be secured to all and remain inviolate forever but in all cases, civil or criminal, the Legislature may provide by law the number necessary to constitute a jury and to render a verdict; but in all cases the jury may be waived by the parties." MR. MCFARLAND. Mr. Chairman: I was entirely in favor of the substitute as offered, but I am opposed to it with the amendment suggested by the gentleman from Placer, Judge Hale, and which was do not object to giving the Legislature the power to say what shall be the number to constitute a jury or find a verdict in all cases except felony. I move, therefore, to reinsert in the proposition offered by the gentleman from San Joaquin, Mr. Dudley, the words "except felony." MR. FILCHER. Mr. Chairman: I rise to second the motion made by the gentleman from Sacramento, Judge McFarland. I have taken upon myself the responsibility of talking about this matter among the legal fraternity, and I have found many of them to be in favor of allowing a certain proportion of a jury, say three fourths, to find a verdict in civil cases and in minor criminal cases, but I have found the lawyers and the people almost unanimously opposed to allowing any fractional part of a jury to render a verdict in cases of felony. I believe, Mr. Chairman, from the remarks I have heard among members of the Convention upon the subject, that the amendment as offered by the gentleman from San Joaquin will be adopted, and I believe it ought to be adopted. MR. LAINE. It is time for the committee to rise. I move that the committee rise, report progress, and ask leave to sit again. Carried. IN CONVENTION. THE PRESIDENT. Gentlemen: The Committee of the Whole have two P. M. directed me to report that they have had under consideration the article MAKING A SPECIAL ORDER. MR. ESTEE. Mr. President: I move that the article reported by the printed and placed on the desks of members, be made the special order Committee on Corporations other than Municipal, that has now been for next Tuesday, immediately after reading the Journal. the other matter? MR. ESTEE. Why? MR. CAMPBELL. Would it not be better to make a special order of house from making special orders. I do not care particularly about MR. CAMPBELL. Mr. Chairman: As I understand it, the amend-the ment proposes that in all criminal cases the Legislature shall have the power to designate the number that must agree upon a verdict; in other 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 criminal cases are concerned, this is not only a departure from all past practice and all past experience, but it is a departure from the very principle upon which the right of trial by jury rests. I think the experience of all lawyers who are familar with the subject will show that it is a most mischievous and dangerous innovation. Why, sir, there are plenty of cases--or there are but comparatively few-but I know of several cases now on the records of our Supreme Court, where men have been convicted by juries of twelve men, under the influence of public prejudice or passion existing in their locality at the time, and where the Supreme Court, though it is extremely careful not to interfere on questions of fact, 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 the judgments. All men of experience in these matters know that it often happens that in a particular case public sentiment is excited and 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 with their prejudices in the case, and although they think they can try it impartially, the impression in their minds is so strong that it is extremely difficult to remove it by evidence. Now, sir, it is against the sentiment of the civilized world to deprive a man of his life or to condemn him as a felon, where there is not sufficient evidence of his guilt to satisfy twelve reasonable men that he is guilty. If you go to diminishing the number, you in that way take from him the safeguards which have always existed-which are really, in my judgment, essential for the protection of innocence. So far as this matter of guilty men escaping through the verdicts of juries is concerned, I undertake to say that, at the present time, criminals, as a general thing of course there are, and always will be, exceptions-but as a general thing the criminal justice of the State is well administered by the Courts when the cases get there, and the guilty are punished, The motion to make it a special order for Tuesday prevailed. MR. VAN DYKE. I move that the Convention now resolve itself into Committee of the Whole, for the purpose of further considering the IN COMMITTEE OF THE WHOLE. BILL OF RIGHTS. THE CHAIRMAN. Section seven, of the article on bill of rights, is before the committee. The Secretary will read the section. THE SECRETARY read: SEC. 7. In criminal cases the right of trial by jury shall remain. In all cases, except felony, the Legislature may provide by law the number necessary to constitute a jury, and in all civil cases the number necessary to render a verdict. MR. LAINE. Mr. Chairman: As I understand the condition of the question, it is this: that section seven of the report of the Committee on Bill of Rights is now before the Committee of the Whole, and the substitute before offered, so there are two propositions. THE CHAIRMAN. Yes, sir, the gentleman from Santa Clara, Mr. Smith, moved an amendment, by way of a substitute, and the gentleman from Santa Clara, Mr. Herrington, moved an amendment to the amendment. MR. LAINE. I thought those two propositions were voted down. THE CHAIRMAN. Yes, sir, and the question is on the substitute moved by the gentleman from San Joaquin. MR. LAINE. So believing I offered a substitute for the two propositions. THE CHAIRMAN. It is not in order. There is an amendment offered by the gentleman from Sacramento, Mr. McFarland, to the amendment. MR. LAINE. Mr. Chairman: As to the proposition reported by the Committee on Preamble and Bill of Rights, I am unable to support it, for reasons which I will state in very few words. The very first line takes away the right of trial by jury in civil cases, because it is a well known canon of law that the mention of one thing is the exclusion of the other, and for that reason I cannot support the proposition. I do not believe in taking away this great right in civil cases any more than in criminal cases. necessary to constitute a jury and to render a verdict; but in all cases MR. LAINE. I now offer my amendment as a substitute to the section as reported by the committee: "The right of trial by jury shall be secured to all and remain inviolate forever, but a trial by jury may be waived by the parties in all cases with the consent of the Court in the manner prescribed by law. Three fourths of the jury in all civil cases and misdemeanors may render a verdict, and in such cases any number not exceeding twelve shall constitute the jury, if the parties so elect." MR. PORTER. I now offer a substitute to the amendment. THE SECRETARY read: "The right of trial by jury shall be secured to all persons, and shall remain inviolate forever, in all criminal cases amounting to felony, and in all civil cases at law involving one hundred dollars in value. In all trials of persons accused of crime punishable with death, the jury shall consist of fifteen persons, but twelve of them shall be sufficient to render a verdict. In all other criminal cases amounting to felony, the jury shall consist of twelve persons, and nine of them shall be sufficient to but the parties may agree upon a less number, or waive a jury; and in all civil cases tried by a jury, three fourths of the jury shall be sufficient to render a verdict. Cases of misdemeanors, and civil cases at law involving less than one hundred dollars in value, may be tried with such a jury, or without a jury, as the Legislature may direct." THE CHAIRMAN. The question is on the amendment to the amendment. Lost. There is a further objection to the proposition, that it leaves it in the power of the Legislature to destroy the right of a trial by jury, in that it leaves it to them to fix the number of the jury. The Legislature could then fix the number at one or two, and thereby destroy the right of trial 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 sustain them. I then desire to say to the Convention that I hope these propositions will be voted down. I believe a majority of this Convention are in favor of securing the right of trial by jury to all, and then we can provide that a jury may be waived in all cases with the consent of the Court. I can see no objections to such a course that can be urged. If this other is voted down, then I shall offer my substitute, which reads in this way: "The right of trial by jury shall be secured to all, and remain inviolate forever; but a trial by jury may be waived by the parties in all cases, with the consent of the Court, in the manner prescribed by law. Three fourths of the jury, in all civil cases and misdemeanors, may render a verdict, and in such cases any number not exceeding twelve shall constitute the jury if the parties so elect.” THE CHAIRMAN. The question is on the amendment offered by the gentleman from Sacramento, Mr. McFarland, to the amendment of the gentleman from San Joaquin, Mr. Dudley, as follows: "The right of a trial by jury shall be secured to all, and remain inviolate forever; but in all cases, civil or criminal, the Legislature may provide by law the number necessary to constitute a jury and to render a verdict; but in all cases the jury may be waived by the parties." Mr. McFarland moves to reinsert the words "except felony." MR. MCFARLAND. Mr. Chairman: The amendment which I offer is simply to reinsert the words "except felony" in two places. Now, the sole purpose and scope of the amendment is simply to take away the right of the Legislature to limit the number of jurymen in a case of felony. It takes away the right to waive a jury in case of felony, and I do not think, sir, that the Legislature should have the power in high crimes to lessen the number on a jury; I do not think it will be safe to allow even the defendant to waive a jury in this high class of crimes. I do not believe that any one man, be he Judge or jury, should have the right to pass upon the liberty or the life of any citizen, and we all know that persons charged with crimes frequently act without due consideration, and without advice, and might frequently be led to waive a jury, when really their own rights would be jeopardized by so doing, and I do not believe any Court would take the responsibility of passing on the life or liberty of a human being. I think a number of men should share the responsibility on an occasion like that. in cases of misdemeanor. MR. MCFARLAND. I move to amend the substitute of the gentleman from Santa Clara, Mr. Laine, by adding after the word "cases," where it first occurs, the words, "except felony." I do not believe that a man should be allowed to waive his right to a trial by jury in any case amounting to the dignity of felony; and this is a more important thing than gentlemen seem to think. Men who are charged with crime first place, they fall in the hands of a policeman, who always think that are not always in a position to know what is for their own interests. In the man is guilty whenever he is arrested, and they are the first ones to counsel and advice, whether guilty or not; and, sir, we all know what influence his conduct. They are the first men from whom he derives insane things men often do under the advice and counsel of these men, when arrested for crime. We know that the judgment is not always clear when men are in a position of that kind, and also that a great many men arrested are innocent men, and even with the usual degree of self-possession hardly know what course to take. We know that criminals are often kept confined, without a chance of consulting with friends, until their minds have become biased and influenced by the blandishments of these policemen. I can understand how men in that way can be induced to waive their right to a trial by jury. I think, sir, that Judges also are liable to be biased to some extent, and I do not think, sir, that we should allow this class of citizens to be induced to give up their right to a trial by jury, and place themselves in the hands of one man. You may say, sir, that they are free agents; that they have the power to do as they please. Sir, they do not do as they please always, and often do not have the judgment to do as they should do, and I do not believe myself that any man ought to be deprived of his life or liberty unless by a verdict of twelve of his peers; and it is no satisfactory argument to say that he can demand a jury. We have all of us known men to confess to crimes of which they were entirely innocent, and we can see very easily how a man might be induced to put his case in the hands of a Judge who is so far above him in position. I do not believe that men charged with high crimes should be allowed to waive their right to a trial by jury. In the case of a misdemeanor I think the defendant should have the right to waive a trial by jury if he so desires. I can see no harm to come of it. It is done in some instances in Justices' Courts; but it is a very 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 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 arise sometimes when a jury may be waived, even in a case of felony, when it would be just as well for the defendant to be tried by the Judge as by twelve men. Now, why the right of the defendant to waive a jury should be denied is more than I am able to see. I would give the right in any case to the defendant to waive a jury with the consent of the Court. Now, in civil cases, cases now very often come before the Courts, when the parties choose to waive a jury, but the Court wants a jury and calls one; and so in these criminal cases the Court will call a jury if there is any question. But if the Court is willing, and the defendant is willing to waive a jury, I am unable to see any good reason why they should not be suffered to do so. The next question is about juries in cases of misdemeanor and in civil cases. Now, I prefer to keep the rule of twelve jurors unless the parties elect to have a smaller number, with the further provision that a less number than twelve may render a verdict. THE CHAIRMAN. The question is on the amendment of the gentleman from Sacramento. Lost. THE CHAIRMAN. The question is on the substitute offered by the gentleman from San Joaquin, Mr. Dudley: The right of trial by jury shall be secured to all, and remain inviolate forever; but in all cases, civil or criminal, the Legislature may provide by law the number a right to consent away his rights, and ought not to be punished except that punishment and the magnitude or degree of his crime be found by a jury of twelve of his peers. This, sir, is a dangerous innovation. I am in no hurry to do away with a system that has endeared itself to the hearts of the American people. The people themselves, as well as the accused, are interested in this matter. I have known one man to bring a whole jury over to his side by showing them wherein they were mistaken. That is the right of the accused, that is a right which belongs to the community, and I hope the amendment will be adopted. MR. REDDY. Mr. Chairman: I believe the object here is to prevent, or rather take some power away from the Legislature with respect to this matter. Now, we say that a party shall have a right to demand a jury trial, and then, in the same breath, say that the Legislature shall have the right to say how that jury may be waived. Then does not the power go right back to the Legislature to say whether a man shall have a jury trial or not? You say he can demand it, and then we say to the Legislature, you can say under what conditions; it is for you to say when a man has waived that right-you can say, if you choose, that, for instance, unless a man sneezes three times before going into the Courtroom, his right to a trial by jury is waived. If you are going to give the Legislature any such power as that over the rights held sacred by the American people, you might as well leave it all to the Legislature. I see how that thing can be remedied, by making the Constitution, or |