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kind. The members in the immediate vicinity of a speaker can hear what he says, but the others can hear the racket but not the words. It strikes me that we have been long enough here together, and these propositions have been printed long enough, and the reports have been printed and considered long enough, for every member to have read and digested them, and made up his mind. I do not think that we want any more long speeches by members of the Convention.

MR. BLACKMER. Mr. President: I desire to offer an amendment to the amendment.

THE PRESIDENT. There are already two amendments.
MR. BEERSTECHER. I move that this whole matter be laid upon
the table. I do it because nearly one half of this Convention are absent.
MR. LARKIN. I call for the ayes and noes.
MR. MURPHY. Ayes and noes.

MR. MCCALLUM. Ayes and noes.

MR. DUNLAP. Ayes and noes.

MR. HUNTER. Ayes and noes.

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MR. MCCALLUM. It takes two thirds to change a rule, and it will Condon, take only a majority to lay on the table. It takes two thirds to change Cowden, a rule.

MR. BEERSTECHER. I withdraw the motion, with the consent of the Convention.

THE PRESIDENT The question is on the adoption of the motion made by the gentleman from Los Angeles, General Howard. THE SECRETARY read:

"Amend by striking out the words 'that the previous question shall not be moved,' and insert in lieu thereof the words, that the previous question shall not be moved until after the twentieth of November."" THE PRESIDENT. That is the amendment to the amendment, on which the question comes first. Lost.

Huestis,
Hughey,

Hunter,

Rhodes,

Chapman,
Charles,

Jones,

Rolfe,

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Crouch,
Davis,
Dean,
Dunlap,
Edgerton,

Larkin,

Larue,

Shurtleff,

Smith, of 4th District,
Soule,

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Estee,
Estey,
Evev,
Filcher,
Finney,
Freeman,
Garvey,

Martin, of Santa Cruz, Stuart,

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MR. BLACKMER. I desire to offer an amendment, which I have Glascock, sent up.

THE SECRETARY read: "Strike out all after the word 'taken,' in the last line, and insert the following: but the previous question may be moved by a two-third vote of the members present.'

reasons.

MR. BLACKMER. Mr. President: I offer this amendment for two First, because I think there should be more liberty in a discussion in Committee of the Whole than in the Convention. This will secure it, because it will take a two-third vote to move the previous question. For another reason, that the phraseology will be such as ought to be in a rule of this house. As it reads now with the amendment offered, we couple the time for speaking and the ayes and noes shall not be taken with a provision that the previous question may be moved. That is not what the Convention wishes to do. For these reasons I offer this amendment. It will give further liberty in the Committee of the Whole for discussion than we have in Convention, where the previous question may be called by a majority.

Gorman,
Graves,
Gregg,

Barbour,
Barton,
Beerstecher,
Bell,

Blackmer,
Brown,
Dowling,
Farrell,
Grace,

Herrington,

Morse,
Murphy,
Nason,
Nelson,
Ohleyer,

NOES.

Howard,

Kleine,

Lindow,

McCallum,
McFarland,

Noel,
Reddy,

Ringgold,

Shoemaker,

Smith, of San Francisco,

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MR. NOEL. Mr. President: I hope that the amendment will not prevail, and that the rules of the Convention in this particular will not be changed. If the previous question may be moved in Committee of the Whole, the Convention may then very well dispense with the Com-his feet, and distinctly called, "Mr. President," before the vote was mittee of the Whole altogether. The only object that there can be in announced. resolving the Convention into Committee of the Whole is to allow the utmost freedom of debate. If the debate in Committee of the Whole is to be cut off, we need have no Committee of the Whole. If the very purpose of it is taken from it we certainly will not need it.

MR. CONDON. I voted in the affirmative for the purpose of giving notice of a motion to reconsider, and I now give that notice.

PARDONING POWER.

MR. MURPHY. As the previous question is under discussion, I now itself into Committee of the Whole, Mr. Tinnin in the chair, for the move the previous question.

MR. WATERS. I second the motion.

MR. DOWLING. I call for the ayes and noes.

The question was put, and the Chair declared it carried, on a division, by an affirmative vote of eighty.

THE PRESIDENT. The first question is on the amendment offered
by the gentleman from San Diego, Mr. Blackmer.
The amendment was lost.

THE PRESIDENT. The Secretary will read the next amendment.
THE SECRETARY read:

"Substitute the word 'may' for the words' shall not.'"
MR. VAN DYKE. It ought to be stricken out and insert.
MR. TERRY. I accept the amendment.

THE SECRETARY read:

"Strike out the words 'shall not,' and insert the word 'may." The amendment was adopted, on a division, by a vote of seventy-three ayes to twenty-four noes.

THE PRESIDENT. The question now recurs on the adoption of the

rule as amended.

MR. FREEMAN. Mr. President: I move that the Convention resolve purpose of further consideration of the report of the Committee on Pardoning Power.

Carried.

IN COMMITTEE OF THE WHOLE.

THE CHAIRMAN. The question is on the amendment offered by the gentleman from San Diego, Mr. Blackmer. The Secretary will read it. THE SECRETARY read:

"Strike out all after the word 'impeachment,' in the fourth line, down to and including the word 'pardon,' in the seventh line, and insert the following: And such power shall be exercised only in case where new evidence is discovered after judgment establishing the innocence of the convicted party or the injustice of the sentence."

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MR. BLACKMER. Mr. Chairman: This discussion has already occupied considerable time. I do not wish to detain the committee for any length of time to further discuss the proposition, but I desire to say a few words upon the question, and perhaps this will be as good a time as I can take. I believe, sir, that all will agree, that we must have some powers that of restraining and punishing those who transgress the laws made for the protection of its citizens. It will be admitted that a government without such authority could not exist. Now, sir, this being conceded, it follows that the laws, or the enforcement of such authority, should be uniform in their operation; and the restraint and punishment should be effective and certain in its application. The uncertainty of THE PRESIDENT. We are acting under the previous question. The arrest and conviction could not be entirely eliminated from the problem, ayes and noes have been demanded by the gentleman from San Francisco, because it was beyond the reach of the authority that provides for the Mr. Beerstecher, the gentleman from San Francisco, Mr. Dowling, the punishment; but the uncertainty of punishment after conviction should gentleman from Monterey, Mr. Wyatt, the gentleman from Santa Clara, be reduced to the lowest minimum, both for the protection of society at Mr. Herrington, and the gentleman from San Francisco, Mr. Bell. The large and for its influence on the criminal classes. A very large proporSecretary will call the roll. tion of our criminals are educated to the profession. They are not the victims of some sudden impulse that carries them away, but they start

MR. EDGERTON. Will the Chair state the positon of the question. THE PRESIDENT. Notice was given of a motion to amend Rule Fifty-government, and that that government must embrace among its other six, by striking out the words, "that the previous question shall not be moved." The gentleman from San Joaquin, Mr. Terry, moved to amend the amendment, by striking out the words "shall not" and inserting the word "may." That amendment was adopted. The question now recurs on the adoption of the rule as amended."

MR. STEDMAN. I call for the ayes and noes.

The roll was called.

MR. BARBOUR (when his name was called.) Mr. President: I wrong in the beginning, and their whole lives have been a school of ask leave to explain my vote.

iniquity, from which they have graduated as outcasts and criminals.

The object of the law is two fold: first, to restrain and punish for the I am in favor of the amendment offered by the gentleman from San crime committed; and second, to deter others from committing like Diego, Mr. Blackmer, because, sir, the question of the pardoning power offenses; and no system can be effective unless these things are kept in is one of essential importance to the people of California. We have view. The first ought to be done by the conviction, and the punishment to-day in this country-in this State-thousands of men running determined upon by law. So long as the convict be retained he is pun-rampant through the land that ought to be ornamenting a rope, or in ished for his crime. The second can only be effected when the punish- San Quentin. We have them in San Francisco by the hundred. Why? ment determined upon is sure to follow, without hope of pardon or On account of the laxity of our laws; because we are not inflexible abridgment. No one who has committed a crime against the peace of enough. We want the best welded iron in order to keep down criminals society should have reason to hope that he may escape the consequence nowadays. of that crime after being convicted of it.

Now, Mr. President, I see no way to accomplish this very desirable object without making the punishment sure to follow the conviction, except where evidence is discovered that establishes the innocence of the convicted party or the injustice of the sentence passed upon him. This does not, as has been contended, abolish the pardoning power. It simply restricts the exercise to that class of cases where alone it should be exercised. The criminal who has been justly convicted of a crime has no claim upon executive clemency, and he ought not to be encouraged to expect it. Society has a right to protection from the injuries inflicted upon it by this dangerous class, and especially so if it has taken the necessary steps to protect itself by procuring a conviction and a sentence. It is not supposed that by any system we can adopt every case will be met exactly, but under the present system many are released while it is yet unsafe to allow them to go at large, and this is a case where there must be a judgment upon the basis of what is right as near as may be. We cannot consistently with our duty overlook the wrongs likely to be done society by an indiscriminate use of the pardoning power. I do not believe, nor would I be understood to say, that the Executives of this State have ever been influenced by money or by the hope of political preferment to exercise this power in favor of any criminal or class of criminals. The cases in which they are urged to exercise it are made up with a view to enlisting sympathy in favor of the convict, and to make it appear that an injustice has been done him in the sentence, and they are so successfully managed that it is often impossible to determine the true inwardness of the application. Many of the honorable gentlemen in this Convention know by experience or observation how easy it is, after a criminal has been convicted and served a portion of his time in the State Prison, to get a petition signed for his pardon. It is not an uncommon thing for the Judge before whom he was tried and the entire jury that convicted him to petition for the pardon through sympathy for his family, who are the innocent sufferers for his crime. This has become so common that it is endangering society. I heartily agree with the sentiment that justice should be tempered with mercy, but we have no right to carry that sentiment so far in its application as to forget that mercy should also be tempered with justice. Sympathy for the guilty should not blind us to the right of society to be protected. Now, let us examine this proposition, and see what its effects would be if adopted. The first condition on which a pardon could be granted would be where evidence may be found after judgment establishing the innocence of the convicted party. This does not establish a new rule in regard to such cases. Pardons ought to be granted under such circumstances. It is thought by some that the word "establishing' there is too restricted; that it compels applicants for pardons to prove too much; and if this was the only class to which this provision might apply there would be some point in the objection, but this goes farther and includes every criminal who can produce evidence discovered after judgment, going to prove that the sentence was unjust. Now, if we take the whole proposition, it seems to me that it includes all who are entitled to pardons. If the convicted party be guilty, he has still an opportunity to prove the injustice of the sentence.

think it is safe to say that there are many in whose favor this power has been exercised who would have been as well off to remain where they were, and that society would have been more secure, while much needless expense would have been saved if they had not been pardoned. I have for many years believed that one of the needed reforms in our criminal jurisprudence was the making the prescribed punishment sure to follow upon conviction. I see no way of bringing about such a result except by restricting the pardoning power. I have no particular pride in this amendment, and do not object to its amendment if it can be improved, but I believe in the principle of it. I believe there is a demand for it, and I do not think we should hesitate to take this step in advance, and I believe, because we do not find a precedent behind which to shield ourselves, we should accept it or reject it upon its

merits.

REMARKS OF MR. STEELE.

Mr. President, the reason that men should be more honest and more noble in this country than anywhere else, is because we have liberty here. We have liberty everywhere; liberty to rob, liberty to plunder, liberty to steal, liberty to do as we like, liberty to violate our laws. That is not liberty; for, Mr. President, liberty lies in obedience to just laws equitably administered and sternly executed. There is an invisible ligament binding liberty to justice, and if that is once severed, liberty is very vague-very capricious, I should say--and it may depart forever. But if we do not allow justice to have its course and hold the scales, and deal out justice to every offender of the law, why, we will never have what we call peace and tranquillity in the State.

Why, sir, if a man commits a crime and is tried by an impartial jury, before a just Judge, the jury has time to deliberate. They are called from all the walks of life; they are called from the plow, from the workshop, and from the counting house. When they pronounce a verdict of guilty on a criminal, I say that the eternal words should be written over the gates of San Quentin : "He who enters here leaves all hope behind;" and out of those doors he should not go until the last hour, until the last minute has expired. When once we do that, why, we will not have the gates of San Quentin opened every now and then by the good and philanthropic Governor. I saw an account of a man, in the Sacramento Union, that assaulted and murdered a woman in San Francisco, and he has confessed that he has been half a dozen times in the State Prison. This thing of the pardoning power is getting to be used too freely. We have got to punish crime or we will never have an end of crime, and I hope that that amendment will pass, for it is the very thing we want in California.

SPEECH OF MR. BELCHER.

MR. BELCHER. Mr. Chairman: I hope that the amendment will not pass. I do not believe that there has been any serious abuse of the pardoning power in this State. We have at this time one thousand five hundred men in the State Prison. We have had a large number at all times. Instead of the pardoning power having been abused, I think it might have been exercised more freely than it has with advantage. It is true, probably, that now and then a man has been pardoned who ought not to have been. But it is human to err, and it must be possible, with any system, that sometimes the Governor may be mistaken in the exercise of clemency. But there are, in my judgment, a hundred men in San Quentin now that would be better out than there, and no danger would be incurred by the State if they were pardoned. Now, it is said by the gentleman last on his feet that the State is running over with criminals, and that may be. There are a great many traversing the country who are criminals. It is said that one has been found lately in San Francisco who is charged with murdering a woman, and who has confessed to having been twice in the State Prison. That I saw, but it does not appear that the man had ever been pardoned. There are criminals sent to the State Prison that never ought to be turned loose upon society, but there are men sometimes in the State Prison who ought to be pardoned. There are boys, such as were spoken of by the gentleman from San Joaquin. There is a large number of boys there. If the object of sending them there is reform, you will never reform them if you keep them there. And it may be that many of those boys might be reformed if let out and taken by their friends.

I read yesterday of a boy some eighteen years of age, who came from Missouri less than a year ago, and has just been sentenced in Colusa County to four years in the State Prison. This boy was the son of an eminent physician in Missouri. He came to this State and tried to get work, but finding difficulties in his way at every step, and being unable to obtain work, he finally committed a crime, which was proven upon him, and he is sentenced to the State Prison. Now, that boy might not be really lost. It may be that the boy can be saved, not by keeping him four years in the State Prison, but by turning him over to better influences outside. Now, while it is true that one object of punishment is to deter others from committing like offenses, still you must strive, as far as may be, to save those who have already committed crimes. Now, I say that instead of the Governors having abused this power, they have not exercised it enough, in my judgment. It ought ought to be exercised freely. Out of the one thousand five hundred men and boys in the State Prison, there are many of them that might be pardoned and the State be all the better off for their being pardoned. Diego, Mr. Blackmer, would practically abolish the pardoning power. Now, I hold that the amendment offered by the gentleman from San innocent. Of course such a one ought to be pardoned. Or, when it say that pardon may be granted when the party is proved to be appears that the judgment is unjust. What is meant by a judgment being unjust? Here is a man who is called up and tried for a homicide, and the jury find him guilty of manslaughter, or murder in the offense under the law. What is meant by saying that the judgment is second degree. There was evidence tending to show him guilty of an unjust? One Judge might sentence him for life, and another Judge might sentence him to five or ten years. Which one of these judghas been found guilty of the homicide. It is a just judgment, unless ments is unjust? They may say it is just in any case, because the man the party was convicted wrongfully. There ought to be a place where this question can be considered. There ought to be a man or a Board MR. DOWLING. Mr. Chairman: I am not a sentimental man, and that can consider it. There are many cases where the judgment of the

MR. STEELE. Mr. Chairman: "To err is human; to forgive, divine." I am opposed to the adoption of the amendment, because it is too cast-iron, too inflexible, too relentless in its scope to be incorporated in the Constitution. It has been well said, I think, that the laws which a people or a nation enacts for its self-government furnish the best criterion by which to judge of its intellectual and moral status. I do not believe that the people of the State of California are willing to incorporate into their Constitution a provision virtually abolishing the pardoning power, or, at least, so curtailing and crippling as to render it almost ineffectual. I believe there should be some room left for the exercise of mercy. Mercy blesses both the giver and receiver. I have no doubt that the object of the gentleman in pressing the amendment is a good He wishes to relieve the Executive from this great pressure that is brought to bear upon him; and, in the second place, to protect society more effectually against criminals. Those objects are good, but we ought not to do it in such a manner as to render the pardoning power ineffectual, or abolish it almost entirely.

one.

SPEECH OF MR. DOWLING.

You

selected-either the Governor and Attorney-General, or the Governor, Attorney-General, and the Chief Justice-if gentlemen object to the Supreme Court being associated with it. I believe that with the Chief Justice, with his ability, with his calm judicial mind, exercising the power with the Governor and Attorney-General, it would be a wise provision. I think that with such a Board of Pardons where the interests of justice required that a man should not be pardoned the pardon will be refused." I think, therefore, that I shall vote against this proposition.

Governor can be exercised properly when those who do not understand his reasons may wonder why parties should be released from prison. A man is sometimes convicted under such circumstances that there is almost a general feeling of sympathy for him. Take some of these cases that have been spoken of, where there are some family disturbances. Somebody has entered into the family circle; the man is generally acquitted by the jury; but suppose the jury convicts? Now, the Judge cannot help himself. If the jury says "guilty," the Judge must pronounce the sentence, because it is the law. The man has committed a homicide and is guilty before the law; he must go to the State Prison for life, or for ten years, or for such time as the law prescribes, unless the Governor interposes his power and releases him from his imprisonment under consideration removes the word "pardon," in its proper ment. I say that the Governor ought to do it, and if I were Governor I would do it if I had the power. I would be willing to put more power in the hands of our Governors in this respect. They have not betrayed this trust; they have not abused this privilege; they have exercised it fairly and well. I hope the amendment will be voted down.

SPEECH OF MR. BARRY.

I

MR. BARRY. Mr. Chairman: I do not agree with the gentleman from Yuba, that the Governors have not abused this power. I believe that it has been abused, not in one case, but in a great many cases. will not charge any particular Governor with exercising the executive clemency improperly, but cases have been too frequent where it has been exercised to the detriment of justice. Nor will I hold that they have been governed by political influence, or by money. I would not lay any such charge at the door of any Governor. But it has been done by sympathetic appeals which they could not withstand. No wonder, is it, that the Governor will hie himself away to the mountains and remain away for weeks, when a wife or sister will be knocking at his door and pleading to him with the powers of speech and all the love that they have for a brother, son, husband, or father, as the case may be, until he is finally overpowered by the importunities on the part of friends or relatives of the prisoner, until he is finally compelled to grant a pardon.

Now, sir, as gentlemen have intimated, pardons are frequently recommended by the jury and sometimes by the Judge, which I am sorry to say is against the interests of justice. When a man is convicted of a felony, sometimes the whole community feels that he ought to be punished severely; but I care not how great that feeling is at the time, in a very short time it is removed, and gradually sympathy takes the place of it. Yet, at the same time, that will be abused. It is often carried too far, and it is so that men forget the perpetrator of the crime in the desire to have him pardoned, through sympathy.

There is another objection to this amendment. I think that it places too great a restriction upon the power of pardon in this: that if a prisoner was taken sick, or when they are liable to die within a short time, there will be no power to pardon them. That is the case in a number of instances. Men who have been confined for five, ten, fifteen, or twenty years will fall into consumption, and it is evident that they can not live but a short time unless removed from there. There are times, in cases like that, when the executive clemency should be interposed; when mercy and humanity calls for it; that a person in that condition should be removed, especially when he has relatives that are willing to take charge of him; where in a short time he will answer before the Judge of all. I hold that in a case of that kind, where a man has relatives and where his time on earth is short, and there is no fear that the case will be abused, it is right that those who are relatives of his should take charge of him. It is right that his eyes should be closed in death by the mother who looks upon him as fondly as when she rocked him as a baby; she who never thinks that her boy was guilty, or son, or father, or husband, no matter what the crime may be. No matter how others look upon him; though he may be an object upon whom all look with disdain; though he may be ostracised from society, yet there is still one and sometimes others whose hearts beat as warmly towards him as they ever did, and who cannot think him guilty.

MR. BLACKMER. Mr. Chairman: Is it not true to-day that the prison discipline allows this class of convicts to be out as trusties in different parts of the place or near by? It would be unlikely that a man would be denied that privilege of being put out in that way.

MR. BARRY. Mr. Chairman: I believe that under this amendment the Governor would be denied the exercise of the pardoning power even in a case of that kind. While that class of prisoners could go out in the yard, they could not go to their relatives. I do not think if the Pardoning Board had this power they would abuse it. If a man was simply sick temporarily, for a short time, I do not believe that the Board would say that he should be pardoned, but only in those cases where the interests of humanity required it. When men become sick so that it is certain that they will die, then is the time for executive clemency.

MR. BLACKMER. If the gentleman will propose an amendment to cover that point, I will accept it.

MR. BARRY. Mr. Chairman: My idea is that this pardoning power should be placed in a Board of two, or three or more. Probably the best would be the Governor, Attorney-General, and the Supreme Court constituting a Board of Pardons. I have heard that with them the power has not been abused; that it has been used wisely; and I think that if we had it in this State it would be much better. The argument is used that the Supreme Court is overworked now. Well, I think that with the provisions that we shall put into the Constitution, their labor will not be so great as in the past, and that they could attend to this duty. But we might allow the Governor to use the power in cases of misdemeanor, and in cases of felony leave it be decided by the Governor, Attorney-General, and Chief Justice, or a majority of them. I do not think anything less will satisfy the people of this State, than to have a Board of Pardons. So amend the Constitution that they shall be

SPEECH OF MR. FREEMAN.

MR. FREEMAN. Mr. Chairman: It seems to me that the amend

signification, from the Constitution and laws of this State. If it is to be
adopted California will be the first State in the Union to place a consti-
tutional prohibition upon the promptings of mercy and the voice of
humanity. Why talk about pardoning a man who is shown to be inno-
cent? Such a man has done nothing to be forgiven. His release from
punishment is a matter of right and not a matter of grace. Neither is
out so much of his penalty as is just. Such a man, having paid the
it a pardon to relieve a man, though guilty of crime, who has served
equitable penalty of his crime, is released as a matter of justice and not
as a matter of favor. Pardon, as I understand the word, is forgiveness
for a crime committed, and in that sense of the term I defend the exist-
ence of the pardoning power. It is not wise to place even a criminal where
there is no incentive to good rather than to bad conduct. Is there to be no
difference between that convict who obeys all the rules of the prison, who
labors industriously and faithfully, and who, so far as he can, respects
and preserves the interests of the State, and that other convict who
lives in constant defiance of the prison discipline, who is universally an
incorrigible dissolute, and who embraces every opportunity to injure the
State and to take the lives of his keepers? Is it not common, even for
convicts, in time of revolt, to place their services on the side of the State,
and have they not even rescued from death the keepers who are placed
over them? Is it not true that the sentences of several convicts in the
State Prison were commuted a few years ago for their heroic conduct at
the time of the fire there? Would you say to such men," Sir, the State
accepts your services and your devotion, but a provision in our Constitu-
tion prevents us from expressing our gratitude to you. We cannot make
any distinction in your favor.
reward in heaven?""
Your good deeds must await their

And, sir, besides the instances I have just alluded to, there must be
many cases where even after a just conviction, even considering the
guilt of a man, his subsequent demeanor and his subsequent conduct
shows that he ought to be restored to society, and given an opportunity
to make a man of himself. The proposition under consideration would
make the pardoning power simply a Court of appeal, or a place for the
correction of errors.
words," Chief Justice of the Supreme Court," and the word," Governor,"
If that is the purpose, we ought to strike out the
and place it in the hands of the legal authorities. Pardon is intended
to exist as a matter of grace, and there must be some one intrusted with
this power in a civilized country.

But it is said that the pardoning power has been abused. I suppose that no power can exist without mistakes. I suppose that there is no department of our government but what commits errors, and if we are resolved not to do anything that will not always operate correctly, we will stay the operations of every department of government. But I mercy. Why, sir, in the twenty-eight or twenty-nine years during believe that more errors have been committed against than in favor of which California has been a State, it is said that only seven hundred and thirty persons have been pardoned. That is not a large percentage. Do we not know that many of these persons were only set free after their sentences had almost expired, and when they had paid nearly the full penalty due to the State? Do we not know that many were only set free because the sands of life were ebbing low, and it was desired that they might end their days in the presence and care of friends?

and I believe that a limitation, such as is proposed here, would take I deny that this power has been abused to any considerable extent, from every young man their incentive to good behavior and to good conduct. But there is another consideration. It must be remembered It must be remembered that the consideration of the existence of the that the pardoning power has been a part of our system of government. pardoning power has entered into every sentence of every one of those know a number of Judges who have told me that they have sentenced one thousand five hundred men who are said to be serving there. I men to long periods of confinement because they believed that a desire to escape would be an incentive to behave righteously and properly, to suitable time, when the Wardens believed they had been sufficiently so ingratiate themselves with the prison authorities that at the end of a punished, and when they believed it was safe to restore them to society, that they would be restored; and the adoption of this will add to the sentence of these men who have been sentenced with a view to the existence and continuance of this power.

REMARKS OF MR. SMITH, OF SAN FRANCISCO.

MR. SMITH, of San Francisco. Mr. Chairman: I am opposed to the whole section, because in my estimation there are too many pardons entirely. I think that the Governor should be the last man to have any thing to do with the pardoning power. I am in favor of abolishing the pardoning power altogether. It appears to me that when a man has once been convicted of a crime, he should suffer the consequences. It is offering a premium on crime. It is opening the door to corruption. I hope, if we must have the pardoning power at all, it will be vested in a Pardoning Board. I think the Governor should be the last man to hold this power, because he is generally too tender. He would not like to offend any political friends, as it would hinder his chances of elevating himself in political position. I do not wish to leave it in the power of

any Governor of this State to turn loose the bank smashers and political thieves to again rob the people. Therefore, I think it should be in a Board of Pardon Commissioners.

MR. RINGGOLD. Mr. Chairman: I am opposed to all the propositions, so far. I see no improvement upon the original section. For one reason, I should prefer that the Governor should be responsible, and that is that the Governor is anxious to be relieved of it. For that reason

I prefer to keep it there. I would be willing to have the power left right

where it is.

REMARKS OF MR. OVERTON.

THE CHAIRMAN. The Chair rules that the whole section is now before the committee. The gentleman has a right to speak to it. MR. TERRY. I understand that there is no motion to amend. MR. GRACE. If the gentleman will sit downTHE CHAIRMAN. The Chair will rule that the whole section is before the house.

MR. OVERTON. Mr. Chairman: It is a little surprising to me to see gentlemen get up here, some of them, and seem to want to abrogate entirely this pardoning power. One of the reasons that some of the gentlemen assign is that some particular man has got away with the funds of some savings bank, or he has done something which it is true he ought to be punished for, and they seem to think that because of that we ought to close the doors forever against the pardoning of prisoners. There are instances where I think this pardoning power should be exercised, and many of them. So far as I am concerned, I am willing to leave it where it has been, and where it is left in most of the States. I remember a case which illustrates it. I remember when I was prose-Governor to remand him to the District Court from whence he was sencuting attorney, that I tried some eight boys, at one time, for a robbery that they had perpetrated upon a lot of Chinamen-all of them young excepting one. They were led to it by this older head. They were convicted-necessarily convicted-under the law, and had to be sent to San Quentin. Nearly all of those boys, who were young, and many of them I had known from little children, were pardoned by the Governor. Nearly every one of them to-day, and all of them, so far as I know, are doing well. They reformed and became good citizens. There are many cases of this kind, and like that mentioned by Judge Belcher, where the penalty must be inflicted, because it is the law. I say that there should be some way in which executive clemency can be exercised. I am in favor, so far as I am concerned, of leaving the pardoning power just as it is. I do not believe that it has ever been abused, except in very few instances, and then I think it has been by the Executive being imposed upon. If the Executive has been imposed upon, they are just as likely to impose upon other men. I think it is better where there is only one man, because he will be more careful than where you divide the responsibility.

THE CHAIRMAN. The question is on the adoption of the amend

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MR. HUESTIS. I move to strike out the word "previously," in the seventeenth line. As it now stands, the language is equivocal, and conveys the idea that where a man shall have been thrice convicted he can be pardoned.

out.

MR. GRACE. The gentleman from Sacramento says that there has been seven hundred and fifty men pardoned out. Well, let us multiply that by twelve. There has been nine thousand impartial jurors that have said men ought to go to the penitentiary, and seven or eight Governors have pardoned them out. We have their opinions against nine thousand honest jurymen. These jurymen have investigated the cases and rendered impartial verdicts. It was their opinion that they were guilty, and these Governors, for reasons brought to bear by friends, have seen fit, in their wisdom, to say that they should be pardoned. I believe that the Governor should have the right to grant reprieves. I put in a proposition to that effect, and they recommended that it be not adopted. I would like to have had the sense of the Committee of the Whole on that. I believe that there are instances where new facts are developed that would bring into question the justice of the sentence, and that the criminal should have a reprieve. I believe it should be the duty of the tenced, and if he could show anything to bring into question the justice of the sentence, let him prove it before a jury of his countrymen. I claim that there should be no other tribunal, and nothing above a jury of his countrymen. That no Governor should have the power to say that a man should be pardoned after he had been sentenced by twelve jurymen of his country. And then, if you want to come down to exact justice, if you want to meet the ends of justice, say that no man should go unpunished after that opportunity. There is nothing inhuman about hat. It would never affect any poor man. The poor man may go to the penitentiary and the circumstances do not develop. It takes something metallic to show the innocence of a criminal. I say that the bank smashing thieves and stock gambling thieves in this State, and every other State in the Union, can do things with impunity, and can ride roughshod over the law-steal, rob, and murder-and when they are sentenced then the Governor will pardon them out. There are cases in this State, and there have been in others. There is the case of Stokes, who murdered Fisk. He was only up in the penitentiary of New York for a few years and then he was turned loose, though it was in my opinion a cold blooded murder. There is not only a dozen cases in the United States, but hundreds of cases, where men of influence and wealth have been convicted and there is no prison strong enough to hold them. If you give the pardoning power to the Governor there is no punishing the moneyed aristocracy of the land. Put it into the hands of jurymen, who are good men.

MR. HERRINGTON. Mr. Chairman: I have an amendment to offer.
THE SECRETARY read:

"Amend section thirteen, of article five, as proposed by the Committee
on Pardoning Power, by inserting in line sixteen, after the word 'case'
and before the word where' the words of embezzlement or.'"
THE CHAIRMAN. The question is on the adoption of the amend-

ment.

MR. HERRINGTON. Mr. Chairman: I offer that amendment because of the peculiarity of the offense of embezzlement. It is an offense which but few persons, where an opportunity is given to commit it, are able to avoid. The trust that is reposed in these banking corporations, saving and loan societies; the trust that is reposed in trusts that are reposed in persons who have in their hands the estates of deceased persons and those of minors, orphans, and persons committed to the insane asylum, are peculiar cases in my estimation of the law. I think they ought to be exempt from the general rule applicable to pardons, and that is the reason for offering this amendment. It will make that clause of the section read: “Neither the Governor and Chief Justice nor the Legislature shall have power to grant pardons, or commutations of sentence, in any case of embezzlement, or where the convict has been thrice convicted of felony." These are the reasons that I offer that amendment. I think that that amendment presents a case which ought to be exempted from the general rule.

MR. SCHELL. I understand that that word has already been stricken THE CHAIRMAN. The Chair understands that it is not stricken out. MR. ROLFE. Mr. Chairman: It is obvious to any gentleman who will read this that this leaves it equivocal. If I understand the inten-public officers who have committed to their charge public funds; the tion of the committee it was to fix it so that where a person had been convicted of a felony three times, he could not be pardoned. Now, I think this would bear the construction that he would have to get up to his fourth conviction before this inhibition would apply. To prohibit the pardon it would have to appear that he had been convicted three times previously to that conviction for which the pardon was asked. Now, it simply means that if with that conviction he has been three times convicted, a pardon cannot be granted. Therefore, it will read right if this word "previously" is stricken out. I know that is what was intended by the committee. I am on that committee myself, and Judge Shafter called my attention to it before he left.

The amendment was adopted.

MR. GRACE. I wish to submit a substitute for the whole section.

MR. ROLFE. Mr. Chairman: If I understand the amendment corNeither the Governor and Chief Justice, nor the Legislature"-whereas the section does not propose to allow anybody but the Governor to grant

MR. ESTEE. I rise to a point of order. A substitute cannot be rectly, it seems to me that it would make an absurdity on its face. offered, as the committee has already adopted a part of the section. THE CHAIRMAN. The Chair will so rule. The motion is out of any kind of a pardon. order as a substitute for the whole.

REMARKS OF MR. GRACE.

MR. GRACE. Mr. Chairman: I am opposed to this thing of granting the power of pardon to the Governor. I do not think that the Governor knows any more about the sentence of a criminal than a jury of twelve men. When a man has been arrested and tried before a jury of twelve men, who have sat in Court for days, with the best counsel that can be procured in the State; they hear the evidence and they investigate it; they sit there with a disposition only to do justice; when the case goes to the jury they are instructed by a just and impartial Judge that if there remains any reasonable doubt in relation to the guilt or innocence of the prisoner, that the prisoner is entitled to the benefit of the doubt; when he is convicted after the jury has given him the benefit of the doubt, then I am of the opinion that that man is guilty, and when he is sentenced to the Penitentiary, he should stay there until he serves out the last day of that sentence. In relation to one other thing that was said

MR. TERRY. I rise to a point of order. There is nothing before the house.

MR. GRACE. Isn't the pardoning power

MR. HERRINGTON. Mr. Chairman: I ask leave to include in that amendment such an amendment as will make this last sentence conform to the first part of the section. Of course that is the way the section now reads, and it did not occur to me at the time that an amendment had been made to the former part of the section. Of course this last part ought to conform. I overlooked the fact that the amendment to the first part of the section had confined pardons to the Governor. will not vitiate the section if it remains even in the form that it is now presented. If the gentleman will offer that amendment I will accept it; otherwise I ask leave to amend it so as to make it conform in that way. The amendment was lost.

It

MR. SHOEMAKER (at twelve noon). I move that the committee rise, report progress, and ask leave to sit again.

Lost.

MR. WHITE. Mr. Chairman: I offer the following amendment.
THE SECRETARY read:

"The Governor of the State shall have power to remit fines and forfeitures, to grant reprieves, commutations of sentence, and pardons, except in cases of impeachment; but no pardon shall be granted, nor sentence commuted, except upon the recommendation, in writing, of

the Lieutenant-Governor, Secretary of the Commonwealth, AttorneyGeneral, and Secretary of Internal Affairs, or any three of them, after full hearing, upon due public notice and in open session, and such recommendation, with reasons therefor at length, shall be recorded and filed in the office of the Secretary of the Commonwealth."

MR. WHITE. Mr. Chairman: That is the mode adopted in Pennsylvania. I copied it from the late Constitution of that State. Pennsylvania formerly left it to the Governor altogether. When she had her last Convention they adopted this mode. I think it is excellent. Next, to do away with it altogether, which I am in favor of.

THE CHAIRMAN. The Chair will rule that the amendment is out of order, as it seems to be a substitute for the whole matter. MR. GRACE. I wish to offer an amendment.

THE SECRETARY read:

"Insert after the word 'reprieves' the following: But nothing herein contained shall be construed to authorize the granting of pardons or commutations of sentence after conviction; but if it shall appear to the Governor that in the case of any person undergoing sentence, additional testimony mitigating the other circumstances have been developed which bring into question the justice of such sentence, the Governor shall have the power to remand such person to the custody of the Court in which the sentence was passed, for a new trial.""

The hour having arrived, the Convention took the usual recess until two P. M. AFTERNOON SESSION. The Convention reassembled at two o'clock P. M., Mr. Tinnin in the chair. Roll called, and quorum present.

NOTICES TO AMEND RULES.

MR. ESTEE. Mr. President: I wish to give notice that to-morrow I will move the adoption of the following rule, to be known as Rule Seventy-six :

THE SECRETARY read the notice:

"Every section adopted by the Committee of the Whole shall be referduty it shall be to formulate the same and report it back to the Convenred to the Committee on Revision and Adjusting without debate, whose tion before final action thereon."

MR. CONDON. Mr. President: I give notice that I will, on to-morrow, move to amend Rule Fifty-two, by striking therefrom the words, "by title."

to-morrow, move to strike out of Rule Fifty-six the words, "except for a MR. STEDMAN. Mr. President: I desire to give notice that I shall, MR. GRACE. Mr. Chairman: Now, all I have to say to this Con-limited time," and substitute other words. THE PRESIDENT. Send up the notice in writing.

vention is this: that if they want to meet the ends of justice and come down to just exactly what is right, they will adopt this amendment. If any man has been convicted of a crime of which he is not guilty, and facts have been developed since his sentence, why, that leaves a chance that he may still be acquitted of it; and, if he is really guilty, and there has nothing occurred only sympathy and friends and moneyed influence on the outside, he will have to stay in the penitentiary. I tell you that a jury of twelve men ain't going to let them out. It takes evidence. It must be the truth that is sworn to and proved. The same rule should apply to pardons as to trials. It should be the same kind of evidence. If you establish a commission it will be something like the machine that got Mr. Hayes into the Presidential chair. I contend that three Democrats and two Republicans could have decided that just as well as eight Republicans and seven Democrats. [Laughter.] If you want to get justice let it be an even tribunal. And, sir, if it is right for twelve men to send men to the penitentiary, then it will be nothing more than right and fair to submit the question of the justice of a sentence to twelve men. Justice should be blind, and they should look at the evidence instead of the sympathy and the filthy lucre that has been brought to bear upon the Executive. I do not believe that there has been seven hundred and fifty men put in the penitentiary who ought not to have been. If so, you say nine thousand jurymen were not honest, and the Governors were infallible. I do not believe in the infallibility of the Governor. I think he is more liable to err than twelve jurymen. If you are in favor of coming down to a fair, square proposition, whereby no man can be left in the penitentiary unless he deserves to be there, and no man can get out unless he ought to, then vote for this proposition. I am in hopes that this amendment will prevail.

REMARKS OF MR. STEDMAN.

MR. STEDMAN. Mr. Chairman: I do not desire to detain this Con

vention with a long speech. I desire simply to say that in my opinion
the section is now in its proper form. I hope that all amendments will
be voted down, and that the section will be adopted as it now stands.
As I understand our prisons, they are, or ought to be, reformatory in
character. When men are placed in the State Prison, and understand
it, they are placed there in order that they might be reformed and
become better men. Can we not extend to them mercy and charity?
Mr. Chairman, let us put ourselves in their places.
[Laughter and cries of "Oh, no!"]

MR. ROLFE. I move that the gentleman have leave to put himself

in that position.

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ries of Leave!" "leave!"]

AMENDMENTS.

MR. HERRINGTON. Mr. President: I ask leave to introduce, at this time, a proposed amendment to the article introduced by the Committee on Corporations other than Municipal, by adding thereto the following:

THE SECRETARY read:

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this State at the time of the adoption of this Constitution, shall accept
Every railroad company or association existing under the laws of
the provisions of this article in good faith before being entitled to claim
or have any of the benefits of any future legislation thereunder."
four of the report.
MR. HERRINGTON. My intention is to make that section twenty-

THE PRESIDENT. It will be printed and referred to the Committee of the Whole, to be considered with the article on corporations. Committee of the Whole to further consider the report of the Committee on Pardoning Power.

MR. FREEMAN. I move that the Convention resolve itself into

MR. BEERSTECHER. I would like to have leave, before we go into Committee of the Whole, to introduce an amendment in relation to the creation of a State Department of Labor. The amendment was received:

STATE DEPARTMENT OF LABOR AND LABOR STATISTICS.

SECTION 1. There shall be a State Department of Labor and Labor Statistics.

SEC. 2. The duty of the department shall be to collect and publish statistical details concerning every class of labor in this State; also to have general supervision of the commercial, industrial, educational, social, and sanitary condition of the laboring classes.

SEC. 3. Weekly and annual reports shall be made by the department and printed by the State Printer, and gratuitously distributed throughout the State. The chief of the department shall also report to each Legislature, and advise such legislation as may be necessary to encourage and protect labor.

SEC. 4. The officers shall be a General Superintendent, with an office in the State Capitol building; and a Superintendent, with an office in the City of San Francisco. They shall be elected at the general State election, and hold office for four years. Their salary shall be two hundred ($200) dollars per month.

dental expenses, and for employment of clerks, and their compensation.

SEC. 5. The Legislature may provide for traveling and other inci

MR. BEERSTECHER. This amendment was referred to the Com

MR. STEDMAN. Mr. Chairman: I cannot better express my senti-mittee on Legislative Department. I think it was improperly referred. ments than by reading-for I do not remember it-the words of the old Scotch poem, and then I will sit down, and after which I hope the section will be adopted. Here it is:

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Though they may gang

I understand that there will be a meeting of the Committee on Labor
and Capital this evening, and I would like to have this amendment con-
sidered at that time, therefore I move its reference to that committee.
So ordered.

NOTICE TO AMEND A RULE.

MR. STEELE. Mr. President: I hereby give notice that, to-morrow, MR. EDGERTON. Mr. Chairman: I merely rise to suggest that the immediately after the meeting of the Convention, I will move to amend gentleman sing it. Rule Fifty-six as follows: [Cries of sing!" " sing!"]

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And just as lamely can ye mark

How far, perhaps, they rue it."

After the word "applicable" in the second line, strike out all the words down to the word "except" in the third line; in the fourth line, after the word "question," strike out "may" and insert "shall not," and then add to the end of the rule: "Each speaker shall be limited to one speech of ten minutes, except the Chairman of a standing committee, who shall have the closing speech and double time when any scction of the report of his committee is under consideration and discussion." Then the rule will read as follows:

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MR. HOWARD. I move that the committee rise, report progress, and man of a standing committee, who shall have the closing speech and ask leave to sit again. Carried.

IN CONVENTION.

THE PRESIDENT. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Pardoning Power, report progress, and ask leave to sit again.

double time when any section of the report of his committee shall be under consideration and discussion."

PARDONING POWER.

MR. FREEMAN. I now renew my motion that the Convention resolve itself into Committee of the Whole to further consider the report of the Committee on Pardoning Power. Carried.

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