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rather this amendment of the gentleman, say that in cases of felony, and in all cases, if you like, the right of trial by jury may be expressly waived; not that the Legislature may take that right away from a man by implication, as they do in civil cases. Under this provision proposed the Legislature may do precisely what they do in civil cases. We may say, in arguing this case, that we must place some confidence in the Legislature. If so, let us leave the whole matter to them. I do not believe in leaving a matter of this kind, fraught with so much consequence, in such a condition as that. The whole right may be taken away. Leave the Legislature either full discretion, or leave them none at all in this matter. I do not believe that any of our American Constitutions have ever yet gone so far, have ever yet taken a step as far as this seems to go, in criminal cases.

I agree with Judge McFarland entirely, that we should not permit a party charged with crime to waive his right to a trial by jury, for various reasons. The reasons are numerous why we should not permit a party to waive that right. In the first place, as has been suggested by the gentleman from Sacramento, Judge McFarland, the first person who interviews a party accused of crime is the police officer or some detective officer who may take an interest in securing a conviction for their own personal ends, and who may so advise a party, and make him believe that it will be better for his own interests to submit to a trial by the Court, instead of calling on a jury of his peers. And the very object which the officer may have in view may be the conviction of the party accused.

and decisions of Courts and I remember one gentleman said here the other day that if the law library could be locked up and all these books that the members bring here thrown out of sight, we could go to work and build a Constitution out of our heads, out of our own inner consciences. I believe he said that would represent the common sense of the present day. As far as these ancient rights and privileges are concerned, I am not of that opinion. I have a reverence for the opinions of the world's greatest men on these subjects. Now, the Court of Appeals say, in regard to this case:

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It is conceded on the part of the people, and it is very clear, that but
for the consent of the plaintiff in error, he could not lawfully have been
tried by eleven jurors."
Recollect that a jury consists of twelve persons, and our Constitution
declares that a trial by jury in all cases shall remain inviolate forever,
and that twelve persons shall constitute a jury. The Court goes on to
say:
"A legal jury, according to the common law, consists of twelve persons.
Our Constitution (article one, paragraph two,) declares that 'the trial by
jury, in all cases in which it has heretofore been used, shall remain invio-
late forever,' and the revised statutes provide in reference to trials in
criminal cases, that the twelve first jurors who shall appear on being
called, and be approved as indifferent, shall constitute the jury* * *.
"But it is insisted that the plaintiff in error might waive his right to a
trial by twelve persons, and that having done so, the trial and conviction
in this case were valid. The researches of the counsel have not enabled
them to refer the Court to any case directly in point, either in favor of or
against the proposition, nor are the Court aware of any such case; and
hence it must be examined and decided in the light of principle, and

Again, the prisoner may be led to believe, by various arts, that his
interests would be better protected if he be tried before the Court than
they would be to submit his case to a jury. Some gentlemen related to
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
out of the Court-room, after the case had been submitted to the jury,
and after they had been deliberating on the case for some time-the
Judge said: "I don't see why the jury is out so long: I would render
a verdict in a few minutes for the plaintiff." The plaintiff immediately
went to the defendant and said he would be perfectly willing to try the
case before the Judge on the next trial, upon the testimony already
taken. The defendant consented, and they did so, and the Court ren-
dered a verdict against the plaintiff. Now suppose a Judge, in times of
great political excitement-it would be an easy thing for him to drop
some remark which would lead the prisoner to believe that the Court
was favorable to him, for the purpose of entrapping the prisoner. Now,
it is true that our Judges are too honorable to do anything of that kind,
but such Judges as Jeffries have existed, and may exist again. While
our Judges are honorable men, and no man on this floor has a greater
respect for an honest Judge than I have, but unfortunately there have
been bad men placed on the bench, and it is to guard against cases of
that kind that our legislation is now aimed.

There is, obviously, a wide and important distinction between civil suits and criminal prosecutions, as to the legal right of a defendant to waive a strict and substantial adherence to the established, constitutional, statutory, and common law mode and rules of judicial proceedings. This distinction arises from the great difference in the nature of such cases, in respect to the interests involved and the objects to be accomplished.

"Civil suits relate to and affect-as to the parties against whom they are brought-only individual rights which are within their individual control, and which they may part with at their pleasure. The design of such suits is the enforcement of merely private obligations and duties. Any departure from legal rules in the conduct of such suits, with the consent of the defendants, is, therefore, a voluntary relinquishment of what belongs to the defendants exclusively; and, hence, there is manifest propriety in the law allowing such consent to have the effect designed by it, in most cases, as to matters within the jurisdiction of the Courts. The law does recognize the doctrine of waiver to a great extent; in some instances, even to the deprivation of constitutional private rights. * * But it is settled that even in civil cases consent will not confer jurisdiction of the subject-matter; and where such jurisdic

*

It is proposed here to permit a party accused to waive his right to a trial by jury. He should not be permitted to do so in any case. But if he may waive it at all, let us, in the fundamental law of the land, saytion 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 manauthorize 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 by continual contact with crime, and it is the very object of the law that a man accused of crime shall be tried by such men. There are a number of other equally potent reasons why the right of trial by jury should remain inviolate without the power of being waived. MR. WICKES. Mr. Chairman: I do not believe in submitting this matter to the Legislature. I would rather stand by the usages handed down to us by our fathers in the course of human progress. The principles involved are these: the office of the jury is to acquit, not to convict. In law, a person charged with a crime is supposed to be innocent until his guilt is undoubtedly proven, and I do not believe that a criminal should be allowed to waive a jury trial.

*

*

*

"Criminal prosecutions involve public wrongs, 'a breach and violations of public rights and duties,' which affect the whole community, considered as a community, in its social and aggregate capacity.' * The end they have in view is the prevention of similar offenses, not atonement or expiation for crime committed. The penalties or punishments, for the enforcement of which they are a means to the end, are not within the discretion or control of the parties accused; for no one has a right, by his own voluntary act, to surrender his liberty or part with his life. The State, the public, have an interest in the preservation of the liberties and the lives of the citizens, and will not allow them to be taken away without due process of law,' when forfeited, as they may be, as a punishment for crimes. Criminal prosecutions proMR. BARNES. Mr. Chairman: As far as civil cases are concerned, Iceed 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. Blackwaive 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. Ition 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 notions 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, I 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 safeguard to the public interests. But when issue is joined upon an indictment, the trial must be by the tribunal and in the mode which the Constitution and laws provide, without any essential change. The public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant.

"Applying the above reasoning to the present case, the conclusion necessarily follows, that the consent of the plaintiff in error to the withdrawal of one juror, and that the remaining eleven might render a verdict, could not lawfully be recognized by the Court, at the circuit, and was a nullity. If a deficiency of one juror can be waived, there appears to be no good reason why a deficiency might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the Court alone. It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the Constitution and laws establishing and securing that mode of trial, for the Court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated.

"The opinion of the Court of King's Bench, in the case of Lord Dacres, tried in the reign of Henry VIII for treason, strongly fortifies the conclusion above expressed. One question in that case was whether the prisoner might waive a trial by his peers and be tried by the country; and the Judges agreed that he could not, for the statute of magna charta was in the negative, and the prosecution was at the King's suit. *** Woodeson, in his lectures (vol. 1, 346), says, the same was again resolved on the arraignment of Lord Audley, in the seventh year of the reign of Charles I, and that the reason was that the mode of trial was not so properly a privilege of the nobility as a part of the law of the land, like the trial of commoners by commoners, enacted, or rather declared, by magna charta. In 3 Just., 30, the doctrine is stated that a nobleman cannot waive his trial by his peers and put himself upon the trial of the country, that is, of twelve freeholders; for the statute of magna charta is that he must be tried per pares, and so it was resolved in Lord Dacres' case.' "It is unnecessary to pursue this discussion further; and it remains only to add, as the result of the foregoing views, that in the opinion of the Court the judgment below should be reversed, and a new trial ordered."

Now, sir, I apply that argument to our Constitution. We are to say whether we will make an innovation upon these ancient privileges, that whenever a man is accused of crime he shall be brought face to face with twelve of his peers, who shall pass upon the question of his guilt after hearing all the evidence, and after mature deliberation; and I know of no reason why, if you can try a case with eleven jurors, you cannot just as legally try a case with six jurors, or why you could not do away with the jury altogether. Sir, I know of nothing that is more essential to the rights of the people of these United States than the right of trial by jury, where twelve good men and true stand between the man accused of crime and the officers of the law. I say again, I can see no reason why any such change should be made with reference to the criminal law. It is a right that is sacred to the people, and they will guard it with a jealous eye. It is a right which has been recognized ever since the existence of free government, and I hope it may continue to exist as long as time shall last. I hope no change will be attempted in our organic law that will affect the right of trial by jury in any case that may affect the life or liberty of the citizen.

MR. HALE. Mr. Chairman, would it be permissible to offer an

amendment.

THE CHAIRMAN. No, sir, not at the present time. MR. HALE. The Convention, or rather the Committee of the Whole, has not had an opportunity to express its judgment upon the broad proposition involved here, and I would like to have a chance to test the sense of the committee upon a proposition a little broader than that covered by the amendment to the amendment offered by the gentleman from Santa Clara, Mr. Laine. For the purpose of illustrating my argument, I desire to read an amendment which I have prepared, and which I shall offer at the proper time:

"The right of trial by jury shall be secured to all, and remain inviolate forever, but in all cases whatever, except criminal cases, where the punishment may be death, or imprisonment for life, a jury may be expressly waived by the parties with consent of the Court. The jury shall consist of twelve persons, except that in all civil cases and criminal cases not amounting to felony, the parties may agree upon a less number, and in all cases except criminal cases punishable by death or imprisonment for life, a verdict may be rendered by the concurrence of three fourths of the jury."

Now, it will be recognized by all that the number of cases of felony tried in our Courts is exceedingly large as compared with the whole number of criminal cases; whereas, the number of criminal cases punishable by death or imprisonment for life are comparatively few. I take it that the committee has practically expressed its judgment against extending these provisions to cases which may involve the taking of life or imprisonment for life. But I would like to test the sense of the committee on the question of extending this right of waiver to less than all of the jury in criminal cases not punishable by death or imprisonment for life. If the committee should reject the present proposition I shall offer this to test the sense of the body.

MR. ESTEE. This section as reported by the committee reads as follows:

"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."

As I construe that, sir, in all cases except felony, the Legislature may fix the number of the jury. Now, what are they going to do in cases of

felony? We are not making criminal law, we are making a Constitution. It strikes me that the language is very peculiar, and very susceptible of a different construction, and very uncertain, and I move that the committee now rise, and report it back to the Convention, with the recommendation that sections seven, eight, nine, thirteen, and fourteen be referred to the Committee on Judiciary and Judicial Department. I certainly think that such a grave and important question should receive more careful consideration.

MR. MCCALLUM. I rise to a point of order. It is that the motion that the committee rise is debatable, as I learned a few moments ago. MR. HALE. I second the motion that the committee rise. Division having been called for, the motion was lost by a vote of fiftyeight ayes to seventy-two noes.

MR. EDGERTON. Mr. Chairman: I am altogether opposed to any innovation on the right of trial by jury, as far as it affects a criminal case. And I am also opposed to any change in the law with regard to civil cases, that shall not be accompanied with the condition that the Legislature may at any time restore it to the old plan. I have found in the Constitution of Nevada a provision covering this subject that commends itself to my judgment, and I shall vote against the amendment, and also against the provision as it now stands, for the purpose of offering that clause in the Nevada Constitution, if I am permitted so to do. That clause reads as follows:

"The right of trial by jury shall be secured to all, and remain inviolate forever. A jury trial may be waived by the parties by the consent of the Court in all civil cases, as provided by law. In civil cases, if three fourths of the jury agree upon a verdict, it shall stand and have the same force and effect as a verdict of the whole jury, provided the Legislature, by a law passed by three fourths of all the members elected, may require a unanimous verdict, notwithstanding this provision." This obviates the objections made by some of the gentlemen, by providing that it must be by consent of the Court, and in the mode prescribed by law. It preserves to every man charged with any kind of crime the sacred right of trial by jury. Farther, if, after actual experience, the people should discover that it is unwise, the power is lodged with the Legislature to restore it as it stood before. I think it is a good provision.

THE CHAIRMAN. The question is on the amendment to insert the words "except felony."

MR. HAGER. Mr. Chairman: I regret, sir, that the proposition before the committee has not been referred to the Judiciary Committee. It relates to the administration of justice; it is a very important matter, one that we cannot very well manipulate in this large body. The report of the committee I disagree with, and I presume three fourths of the Convention will oppose the radical change proposed by the committee that make this report. That would substantially do away with a jury altogether, except in criminal cases amounting to felony. But perhaps public sentiment is undergoing a change in regard to the so-called jury system as known to us under the common law. At common law a jury consists of twelve persons, and every Constitution contains a provision in relation to trial by jury, which means a jury of twelve men, and any attempt to evade it of course would be a mistrial, when it comes before the Court. But, notwithstanding all this, we have a right to engraft in our Constitution a provision making six, or ten, or eighteen men a jury in criminal or civil cases, because it is the fundamental law, the organic law, and we have a right to prescribe rules, and as I said before, it is not a question which can be very readily settled in so large a body as this. It requires the consultation of some clear-headed men, otherwise we will become muddled over it.

Now, the proposition of my friend from Santa Clara, Mr. Laine, proposes that three fourths of a jury shall render a verdict. I am in favor of that proposition. The proposed amendment embodied that proposition, which I have here before me. But the last clause of the proposition says that the jury shall consist of any number less than twelve, if the parties agree. Well, suppose they agree upon a jury of ten; the question comes in, what number constitutes three fourths of ten? If you have a jury of twelve, and you get eight out of the twelve to sign a verdict, you have it.

Now, in Scotland, the jury system that has prevailed there for years is this: In criminal or civil cases the jury is composed of eighteen members, and twelve of the eighteen are required to render a verdict. That is a very good system, according to my opinion. It has been in force there for years, and has operated very well, while in England it is still a unanimous verdict of twelve men. I believe here in these United States, in various of the States, they have changed their jury system, and some of them have abolished jury trials in certain cases, even in criminal cases. A great many of them have made changes. The party undoubtedly waives a jury trial; but it is said here that a party ought not to be allowed to waive a trial by jury. Well, sir, when he comes before the Court and pleads guilty, is not that a waiver of jury trial? He may come before the Court and say, "I wish to waive a jury, and simply wish the Court to look into this matter." Well, if I was the Judge, I would say no; I will not consent to a waiver of a jury; I shall not consent to have this burden thrown upon me. Neither would a Judge consent, where the damages are of an uncertain character, to have a jury waived; and I do not think this burden should be imposed upon the Court where the damages are so uncertain that it can only be arrived at approximately any way, or in a case where the judgment may be in the nature of exemplary damages.

Now, since we have this matter here, I will refer to some of the objections. Now, take the Constitutions of Arkansas, of Minnesota, and Wisconsin, which read:

"The right of trial by jury shall remain inviolate, but a jury trial may be waived in all cases.'

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As I understand it, it relates to criminal as well as civil cases. Again, take the Constitution of New York:

State.

"The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law." MR. WINANS. That is the language of the Constitution of this MR. HAGER. Now I pass again to the Constitution of Maryland: "The parties to any cause may submit the same to the Court for determination without the aid of a jury; and the Judge or Judges of any Court of this State, except the Court of Appeals, shall order and direct the record of proceedings in any suit or action, issue or petition, presentment or indictment, pending in such Court, to be transmitted to some other Court (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases, whenever any party to such cause, or the counsel of any party, shall make a suggestion in writing, supported by the affidavit of such party, or his counsel, or other proper evidence, that the party cannot have a fair or impartial trial in the Court in which such suit or action, issue or petition, presentment or indictment is pending, or when the Judges of said Court shall be disqualified under the provisions of this Constitution to sit in any such suit, action, issue or petition, presentment or indictment," etc.

Then we take up the Constitution of Michigan: "The right of trial by jury shall remain inviolate. "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the vicinage; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to have the assistance of counsel for his defense; and in all civil cases, in which personal liberty may be involved, the trial by jury shall not be refused."

And this is the Nebraska Constitution:

"The right of trial by jury shall remain inviolate; but the Legislature may authorize trial by jury of a less number than twelve men, in Courts inferior to the District Court."

The point I wish to illustrate is, that we may change the jury system by a constitutional provision; that we are not bound strictly to adhere to the old common law rule of twelve men; that we may depart from that rule. Then we have the Constitution of Nevada, which was referred to by the gentleman from Sacramento, Mr. Edgerton: "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 all civil cases in the manner to be prescribed by law; and in civil cases, if three fourths of the jurors agree upon a verdict, it shall stand and have the same force and effect as a verdict by the whole jury; provided, the Legislature, by a law passed by a two thirds vote of all the members elected to each branch thereof, may require a unanimous verdict, notwithstanding this provision."

Then we have the Constitution of North Carolina:

"In all issues of fact, joined in any Court, the parties may waive the right to have the same determined by a jury, in which case the finding of the Judge upon the facts shall have the force and effect of a verdict of a jury."

I simply read these various provisions in order that the Convention may understand that we have the right to change the jury system, and make it not only different from what it now is, but in conflict to what has been known to be the principles of the common law. In other words, we may say that a jury shall be composed of six men, in all civil actions; or, in criminal actions we may say that two thirds or three fourths of a jury may render a verdict. And now the matter to be determined is, what is the sentiment of this Convention in regard to these different propositions? If we should offer a resolution that a jury shall consist of twelve men, that would get at the sentiment of the Convention, and all amendments could be formulated on that decision. If we should offer a resolution that a verdict might be rendered by two thirds or three fourths of a jury, that would be a decision as to that part of it. But we are here struggling over various propositions without arriving at the judgment of the Convention on any one of them.

tion, notwithstanding that they admit in private conversation that it is a delusion, desire to perpetuate it. But there is one proposition in which I am particularly interested, and that is the reduction of the number of jurors. If gentlemen are determined to perpetuate the jury system, I at least, in the interest of the citizens, and of the taxpayers, demand that the number shall be reduced. I have the figures here showing the cost of the jury system in Sacramento County, and multiplying that by twenty-four, which is the difference between Sacramento County and the State of California, shows that a reduction of the number of jurors from twelve to seven would be a saving of three hundred and eighty thousand dollars a year. And when the time comes I propose to offer a substitute, that the number be reduced to seven, and I shall demand to know why and wherefore seven jurors are not as good as seventy, if the interest of the public is considered. I assert that seven jurors are as good as seventy or seven thousand. For the present I am not at liberty to offer an amendment, but I will make the suggestion, simply to confirm what Judge Hager has said, that there is a very great change in popular sentiment, and I think the people are demanding relief from one end to the other of the country.

Here, for instance, we have at the present time a law requiring that jurors shall be drawn by the County Judge, and serve one year. About two thirds or three fourths are exempt, from some cause or other, and this expense is all saddled upon the taxpayers. Farmers are taken away from their farms, and they are complaining loudly and bitterly, for their time is taken from them without any compensation. True, they receive two dollars per day, and that pays their board, but their time is a total loss, and, as I said before, they demand of us that we give them some relief; if not entire relief, at least a partial relief, such as would be afforded by the reduction of the number.

MR. ANDREWS. Mr. Chairman: I am in hopes that the amendment offered by the gentleman from Sacramento, Mr. McFarland, will be voted down. I also prefer the present Constitution to any Constitution I have heard quoted. The jury system is plain and simple. This jury system has been in existence for ages, and I think time has vindicated the wisdom of ages. I differ with the gentleman from San Francisco, Mr. Hager, when he says that public opinion is against the jury system. I am not in favor of an innovation which I believe to be dangerous to society. In regard to this matter of allowing less than the whole of the jury to bring in a verdict, in any case, I say this, as has been well said by the gentleman from San Francisco, that I believe in requiring a unanimous verdict; and I hope that the amendment of the gentleman from Sacramento, Mr. McFarland, will be voted down. I will merely say that I will offer this amendment at the time when it will be in order, so as to make the present constitutional provisions conform to the old Constitution:

"SEC. 3. 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 all civil cases, in the manner to be prescribed by law."

THE CHAIRMAN. The question is on the amendment of the gentleman from Sacramento, Mr. McFarland.

MR. WILSON, of First District. Mr. Chairman: I do not intend to speak at length upon this subject. I am satisfied that the Convention is ready for the question, and was ready for it some time ago, and the debate has satisfied me still more upon the truth of that proposition. That this section should have gone to the Judiciary Committee I am satisfied. The proposition that was presented this morning should have prevailed. The section here which has been reported by the Committee on Preamble and Bill of Rights, I will say, without any disrespect to that committee, is not as neatly drawn, not as compact and clear as it should be. I will call attention to the reading and construction of it: "In criminal cases the right of trial by jury shall remain." Remain where? It remains in criminal cases and nowhere else. It practically abolishes jury trials in civil cases. It especially reserves it in criminal cases alone, leaving the Legislature untrammeled on that subject, having the power to adopt or not adopt a jury for civil cases. The language is not as good in that respect even as section three of the old bill of rights: "The right of trial by jury shall be secured to all, and remain inviolate forever," is much stronger and better language; and then it follows on: "In all cases," that includes criminal cases, essary to constitute a jury." They are not obliged to have a jury at all, but they may provide by law the number necessary to constitute a jury, except in case of felony; there they cannot. In cases of felony there would be a right remaining to the old common law jury of twelve and a unanimous verdict; but in any other case the Legislature may provide by law the number necessary to constitute a jury, but it is not obliged to have any jury at all. And then in any civil case it says the Legislature may prescribe the number to render a verdict, but they are not required to have a jury at all in any of these cases.

As I said before, at the commencement, public opinion is to some extent undergoing a change. I think it is. A great many men who have reflected upon this subject have serious doubts about the jury system as it now exists as a proper mode of administering justice. There 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 man who is being tried may have a friend among the twelve who is able to defeat the ends of justice. Cases are often seen where one man hangs the jury. This practice is used over and over again. Again and again we see men of influence and wealth evading punishment in that way, and these things have a tendency to cast a doubt on the wisdom of retaining the present jury system. Now, let some man of great wealth be indicted for some crime, and he is put upon trial before a jury of twelve men, and if it turns out that one of the jurors, or two or three of them, stand out persistently for acquittal, that is sufficient to create a suspicion that they may have been tampered with. That is what we do not know. I am inclined to the conclusion that we will have to dispense with this unanimous verdict on the part of the jury, and take something less than that; and I hope this Constitution will be so framed as to meet public opinion on this subject. MR. CAPLES. Mr. Chairman: Mr. Hager has aptly said that public opinion is undergoing a change in regard to the jury system, and he has expressed a great deal of truth in a very few words. Mr. Chairman, for forty years I have been a doctor, and I have learned something in regard to the change he refers to. Forty years ago the popular idea with Americans was the palladium of our liberties. To-day the popular idea, even among the legal profession, is that the jury system is the bulwark of thieves. That is illustrative in some measure of the change of popu

lar sentiment.

But, Mr. Chairman, this is one phase of this question that I particularly feel interested in. It may be that the legal gentlemen in this Conven

I do not believe that a majority of this Convention are prepared to adopt a section into the Constitution which abolishes jury trials in all cases except felonies, or to leave it to the Legislature to determine whether, in that great class of crimes called misdemeanors, there shall be a jury or not, as it sees fit, and in civil cases there may be a jury or not, as the Legislature shall determine. That is my interpretation of section seven, and if I am correct, why it certainly should be expressed in such manner that such a construction cannot be placed upon it. I am sincere in my construction of it, believing as I have stated, that it is capable of this construction-abolishes all right to a trial by jury, except in cases of felony; leaves it to the Legislature to determine whether, in misdemeanors and civil cases, there shall be a jury or not. Now, in regard to the proposition of the gentleman from Santa Clara, it is clearer, but still I do not think it contains exactly what would be the sense of the Convention: "The right of trial by jury shall be secured to all and remain inviolate forever, but trial by jury may be 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 parties themselves cannot control their own case unless by the consent of the Court. I do not see why, in a civil case, where counsel agree, they cannot waive a jury and have the case determined by the Court. But this proposition makes the consent of the Court necessary in civil cases to the waiver of a jury. This brings me back again to my proposition that this section should go to the Judiciary Committee, and be carefully considered and reported upon; and without wishing to be considered obstinate, I renew my motion that this committee now rise and report to the Convention a recommendation that all further action upon sections seven and eight be suspended, and the subject-inatter referred to the Judiciary Committee to report upon the same. However, I will confine it to section seven alone. There are some other questions involved here which I have not discussed at all. If it does not go to the Judiciary Committee it can be discussed in open Convention. I think some of the amendments to the Constitution of the United States are involved in this, but I do not care to discuss them now at this place; therefore I think it should go to the Judiciary Committee in order to examine it as to that matter. And I say it without any disrespect to the members of the committee. I know that anything, however skillfully drawn, when it comes afterward to be carefully looked into and criticised, may be found to be defective; and a person who draws a section may himself see that it is not what he intended it to be; and we have now had a chance to lay bare the defects in this section, and it ought to have a most careful and critical consideration. It is for these reasons that I have renewed my motion without any disrespect to the Convention, or to any member of the Convention.

MR. HAGER. I offer an amendment to the motion, that the committee 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 ask that the committee be instructed to report on Saturday morning, or to-morrow morning.

THE CHAIRMAN. The motion that the committee rise is not debat

able.

MR. VAN DYKE. I haven't heard any objection.
MR. WILSON. I accept the amendment.

THE CHAIRMAN. The motion is that the committee rise, report back the section, and recommend that it be referred to the Judiciary Committee, with instructions to report to-morrow morning.

The motion prevailed on a standing vote: ayes, 73; noes, 43.
IN CONVENTION.

MR. VAN DYKE. Mr. President: Is the motion open to debate

now.

THE PRESIDENT. No, sir; no debate. The report of the Committee of the Whole, with its recommendation, is now before the Convention. It is not a debatable question. The motion is now to refer to the Judiciary Committee, with instructions.

to committees. We have not come to any conclusion yet. For an hour
and a half we have discussed this question, as to what we shall do with
this seventh section. Why not vote upon it? Why not return to the
Committee of the Whole and vote on these two propositions which were
before the committee? What light is this Judiciary Committee going
to give this Convention that they cannot give it now? This matter has
already been to a committee, and the report of that committee is now
before the Convention for action. When will this thing end, if we
take the report of one committee, and without arriving at any conclu-
sion refer it to another committee. In that way every section of every
article in the Constitution might be referred to different committees
before any action has been taken on it. Now, I don't want this whole
matter to be renewed again. I have listened to all this discussion, and
I would like to have an opportunity to vote on this question this evening,
and I believe the gentleman's proposition from Santa Clara will be
adopted, and I make a motion now that we return to the Committee
of the Whole, in order to get a vote on it.
MR. TINNIN. I move the previous question.

THE PRESIDENT. The motion is to return to the Committee of the
Whole.
Division being called for, the motion was lost-ayes forty-seven, not a
majority.
THE PRESIDENT. The motion now is to refer it to the Judiciary
Committee, according to the recommendation of the Committee of the
Whole.
The motion prevailed, on a standing vote-ayes eighty-three, a clear
majority.

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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

MR. CAPLES. I offer an amendment, that the number of all juries be fixed at seven :

"To provide that all juries shall be composed of seven jurors." MR. HOWARD, of Los Angeles. Mr. President: As several of the committees are anxious to sit, I move that the Convention adjourn until 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. The motion prevailed, and the resolution and amendment were tabled. MR. ESTEE. I move that the Convention do now resolve itself into a Committee of the Whole, for the purpose of considering section eight of the article on preamble and bill of rights. The motion prevailed.

IN COMMITTEE OF THE WHOLE.

THE CHAIRMAN. The Secretary will read section eight.
THE SECRETARY read:

SEC. 8. No person shall be held to answer for a crime, or other public offense, punishable by death, or imprisonment in the State Prison (except in cases of impeachment, and in cases of militia when in actual service, and in the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace), unless on presentbe prosecuted by indictment, information, accusation, or complaint, as concurrent remedies, as may be prescribed by law. A Grand Jury shall consist of not less than fifteen nor more than eighteen persons, two thirds of whom may find an indictment or true bill. The Legislature, by a two-thirds vote of all the members elected to each house, may abolish and restore the Grand Jury system.

MR. EDGERTON. I move that the committee now rise, and report back to the Convention sections eight, nine, thirteen, and fourteen, with the recommendation that they be referred to the Judiciary Committee, with instructions to report the same back to-morrow morning. As the gentleman well observed, there are ten sections on which we can work. There is enough to do, and there is every reason in the world why these sections should be referred.

MR. VAN DYKE. Mr. President: I wish to say this to the members 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 put it in proper shape-then something would be accomplished by referring it to the Judiciary Committee. But it must be apparent that we have not arrived at any conclusion whatever as to the framing of this section. There is a division of sentiment in this Convention on the question of whether the common law jury shall be retained in all cases of felony, and upon the other question of whether in cases of misdemeanor 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 arrived at any conclusion whatever on these questions, and it will do no good to refer it to the Judiciary Committee. Now, sir, suppose this is referred to that committee-and I understand from the debate here that the members of that committee differ among themselves on these questions—suppose a majority of that committee report a section here, why, we will have to go over this same ground again. We have not advanced a step. It will still be subject to amendment, and we will have just as many amendments here as there are different views upon it in the Convention. Now, as Chairman of the Committee on Preamble and Bill of Rights, I have no pride of opinion in reference to this question. It was a compromise section by our committee. I think, however, it is not subject to the criticisms bestowed on it by the Chairman of the Judiciary Committee. And upon the whole, for myself, I think the best thing this Convention could do is to take the section read by the gentleman from Sacramento, Mr. Edgerton, from the Nevada Constitution. It is certainly an improvement upon ours, and I for one would be willing to adopt it. It leaves the matter somewhat elastic; it provides for a verdict by a two-thirds vote in civil cases, and authorizes the Legislature to restore the old system in case the new one does not give satisfaction. I think that is the best thing the Legislature can do under the circumstances. I think it is a wrong idea, whenever a question comes up here that we cannot immediately agree upon, to rush it off to the Judiciary Committee. We want first to ascertain the sentiments of this body upon 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 ground again. It is simply a waste of time, and the long debate we have had over this section has not in any manner indicated the sentiments of the Convention as to any one of the points involved.

MR. MCCALLUM. I am perfectly willing to sit here and listen to any discussion, if at the end of it we can avail ourselves of the benefit of it and come to a vote upon the propositions involved. Here is a proposition pending, coming from the gentleman from Santa Clara, which seems to meet with general favor in this Convention. My impression is that it will meet with favor in this Convention. Gentlemen say we are not resolved on anything. Well, we can't do anything, because they won't give us a chance to vote. I must enter my protest here, once for all, against these motions to rise and refer these matters

MR. WHITE. I move that the whole bill of rights be sent to the Judiciary Committee, as an amendment.

MR. FREUD. I move as an amendment, that it be recommitted to the Committee on Preamble and Bill of Rights."

THE CHAIRMAN. That is out of order-we are in Committee of the Whole. The question is now on the motion of the gentleman from Sacramento, Mr. Edgerton, that the committee rise and report the sections back, with the recommendation that they be referred to the Judiciary Committee, with instructions to report to-morrow morning. Division being called for the motion prevailed-ayes, 75; noes, 47.

IN CONVENTION.

THE PRESIDENT. Gentlemen: The Committee of the Whole have had under consideration the report of the Committee on Preamble and Bill of Rights, and have instructed me to report back to the Convention sections eight, nine, thirteen, and fourteen, with the recommendation that they be referred to the Judiciary Committee, with instructions to report on them to-morrow morning.

MR. EDGERTON. I move that the Convention adopt the report of the Committee of the Whole.

MR. FREUD. Is the report capable of being amended now. THE PRESIDENT. It is a motion to refer to the Judiciary Committee, and is not amendable.

MR. FREUD. I move, as an amendment, that it be recommitted to the Committee on Preamble and Bill of Rights, and these gentlemen

can have the privilege of coming before that committee and stating their Reynolds,
views. I think this is due, as a matter of courtesy and respect to that Rhodes,
committee. I am willing to concede to the Judiciary Committee a great Ringgold,
deal of learning and knowledge, but there are other committees of just Rolfe,
as much ability.

Schell,
Schomp,
Shafter,
Shoemaker,

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Swing,

Weller,

Terry,

Wellin,

Thompson,

West,

Tinnin,

Wickes,

Townsend,

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Van Dyke,
Van Voorhies,

ABSENT.

Kenny,
Lindow,
Moffat,

Reddy,
Stuart,
Tuttle.

MR. WATERS. I support this motion to refer these sections to the Judiciary Committee. Gentlemen will all recollect that there have been various propositions introduced in this Convention, all of which have been referred to that committee, and are now pending before it, concern- Shurtleff, ing the Grand and trial jury system. These matters are before that Smith, of Santa Clara, Tully, committee, and have been thoroughly considered. Now if this Conven-Smith, of 4th District, Turner, tion desires to treat that committee right, after sending these various Smith, of San Francisco, Vacquerel, propositions before it, after that committee proceeded to consider these Soule, propositions, and before the committee have had time to make a report, Stedman, to take up the subject-matter and finally dispose of it, I think you inay Steele, as well dissolve that committee. There are some debatable propositions concerning this jury system, and I think the committee ought to have Berry, an opportunity to make a report before the subject-matter is finally dis- Cross, posed of. There is nothing whatever that the Committee on Preamble Glascock, 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 report; so I think it is entirely proper that all these sections should go 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 jury systems than a committee not composed exclusively of lawyers. I 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 them in some shape, that this Convention can know how to act.

MR. JONES. Mr. President: It does not seem possible to me that any time can be saved by such a reference. The mover of that reference, I believe, was the author of the motion or resolution which was adopted by this Convention, that so much of the Constitution as pertained to the bill of rights should be referred to the Committee on Preamble and Bill of Rights; that so much of the existing Constitution as pertains to the legislative department should be referred to the Legislative Committee, and so on through the list. Now it seems to me that this is a violation of that rule. We are proceeding to take this matter out of the hands of the Committee on Bill of Rights before even a vote has been taken; in fact, before there has been any expression of opinion as to its merits in the Convention. If this reference would end all controversy I would most heartily accede to it, but it must be discussed and considered when it comes back from that committee. No committee can bind this vention and I do not see how this is going to save any time. MR. FREUD. I call for my amendment.

LEAVE OF ABSENCE.

Mr. Stuart was granted leave of absence, on account of sickness.
One day's leave of absence was granted Messrs. Tuttle and Kenny.
MR. O'DONNELL. I move that the reading of yesterday's Journal
be dispensed with.
Carried.

COMMUNICATIONS.

The following communication was received and laid on the table: "To the Honorable Members of the Constitutional Convention of California:

"The great evils that in our present time are pressing, not only on
the poor but on all classes of society, have their origin not in the fault,
crime, or corruption of single persons, or not even in corporations of
corrupt men, but in the defectiveness of our laws and institutions. The
remedy for said evils can therefore never be gained by a change of per-
sons in office, but only by a radical change of our organizations. This
truth I wish to impress especially upon the minds of the delegates
elected by the Workingmen's party of California. If the leader or Presi-
dent of this party means really to work for the benefit and welfare of
the people, he is certainly on a very wrong line by stumping for Ben.
Butler.
"The defects under which society suffers are only to be corrected by
Con-establishing a real self-government, the Constitution of which is built
on the principles laid down in the following sketch, which, to investi-
gate carefully, I, as the speaker of thousands of well-meaning citizens
"Very respectfully,

THE PRESIDENT. The question is on the motion to refer to the of California, earnestly beseech your honorable body.
Judiciary Committee.

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"SECTION 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, 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 good will of single persons, but must carry on all public affairs and business themselves, and retain all governmental power in their own

hands.

"SEC. 3. All offices of power for single men shall be forever abolished.

"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 do not want to become citizens; d: Persons who cannot become citizens. "SEC. 2. Citizens are-a: All persons born in this State over eighteen years old, without distinction of race or sex; b: All inhabitants of this State who are citizens of the United States by birthright, or who have lawfully acquired the right of citizenship in this or any other State of the United States.

"ARTICLE III.

"CONDUCT OF PUBLIC AFFAIRS.

"All political action, conducting of public affairs, and business, is done: 1. By the whole body politic of citizens; 2. By the House of State Agents of the people; 3. By the Boards of Municipal Agents of the people.

66

"ARTICLE IV.

POLITICAL ACTION OF THE PEOPLE.

"SECTION 1. It shall be the duty of every citizen, and of every aspirant to citizenship, to take an active part in the political action of the 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

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