The question now is upon the adoption of the amendment to section four, offered by the gentleman from San Francisco, Mr. O'Sullivan. The amendment was adopted, on a division, by a vote of 43 ayes to 36 noes. THE CHAIR. The question is on the section as amended, upon which the Secretary will call the roll. The Secretary called the first three names. MR. ROLFE. Mr. President: I rise to a point of order. My point of order is, that it must be read twice in Convention, on two several days. It has been amended now and cannot be acted upon the same day. THE CHAIR. The Secretary has commenced calling the roll. MR. HILBORN. The section should be read as amended before being adopted. THE CHAIR. The Chair is of the opinion that it is not necessary, but, by unanimous consent, it could be read now. MR. HERRINGTON. Mr. President: Parliamentary law requires that the section should be read, with all the amendments, before it is finally put to the Convention for adoption. THE CHAIR. The Secretary will read the section as amended. SEC. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience, hereby secured, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. THE CHAIR. The Secretary will call the roll on the adoption of the section as amended. The roll was called, and the section, as amended, adopted by the following vote: Barbour, Barry, Herold, Andrews, Barton, Herrington, Beerstecher, Hilborn, Ayers, Barbour, Herrington, Belcher, Huestis, Bell, Hughey, Blackmer, Jones, Boucher, Joyce, Prouty, Rhodes, Rolfe, Belcher, Howard, of Mariposa, Shurtleff, Bell, Huestis, Soule, Biggs, Hunter, Smith, of Santa Clara, Smith, of 4th District, Blackmer, Jones, Davis, Lewis, Stuart, Doyle, McCallum, Waters, Condon, Cross, Evey, McCoy, Weller, Dean, Lampson, Larue, Lavigne, Freeman, McFarland, West, Dowling, Lewis, Smith, of San Francisco, Soule, Stedman, Swing, Freud, Doyle, Wilson, of Tehama-65. Edgerton, McConnell, Vacquerel, Evey, McCoy, Walker, of Tuolumne, Murphy, Filcher, NOES. Freeman, Freud, Ayers, Hunter, Stedman, Garvey, Biggs, Glascock, Brown, Kleine, Glascock, Heiskell, O'Sullivan, Prouty, Walker, of Tuolumne, Wyatt-25. Holmes, THE CHAIR. The amendment is adopted. The Secretary will read section four. RELIGIOUS WORSHIP. THE SECRETARY read: SEC. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. MR. O'SULLIVAN. Mr. President: I send up an amendment. Strike out the word 'allowed,' in the second line, between the words 'be' and 'in,' and insert the word 'guaranteed' in lieu thereof." MR. O'SULLIVAN. Mr. President: I propose this amendment, because it is quite evident that the word "allowed" conveys the idea that the right to disallow or deny exists. Now, sir, I deny that any Government or any power on earth has a right to grant or deny freedom of religious belief. No such power exists, and where it is attempted to be enforced, it is simply despotism. Freedom of thought is inalienable. Our Government, being republican, should guarantee full liberty to the citizen in his actions. "Guarantee," therefore, is the proper word to be used in this case, because its meaning is in full accord with the genius of our institutions, which recognize the inalienable rights of all men. MR. HERRINGTON. Mr. President: I desire to call the attention of the Chair to the fact, that when the last vote was taken the Chair stated that the amendment was adopted. Did the Chair mean that the amendment was adopted? THE CHAIR. The Chair meant that section three was agreed to by the Convention. We were voting upon the section. The section is agreed to as reported by the Committee on Preamble and Bill of Rights. SEC. 5. The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its suspension. MR. AYERS. Mr. President: I send up an amendment. "Substitute for the word 'privilege,' in the first line, the word 'right."" MR. AYERS. Mr. President: I offer that amendment for the reason that the "right" of habeas corpus should be inserted in place of "privilege," because it is a right, and not a privilege. MR. BROWN. Mr. President: As there seems to be some attention turned to this section, I would barely state that the word "when," in the second line, appears to me to be meaningless. If the gentleman would omit that in his amendment MR. AYERS. It would not read right then. MR. BROWN. You are right. It is correct as it is. THE CHAIR. The question is on the adoption of the amendment offered by the gentleman from Los Angeles. Vacquerel, Walker, of Tuolumne, Wilson, of Tehama, Wyatt-92. MR. BIGGS. I wanted to make a point of order. THE CHAIR. The gentleman did not state that he rose to a point of order. MR. BIGGS. My point of order was this, that under Rule Sixty-five all members shall vote unless excused by the Convention. I want to make that point of order. MR. AYERS. Mr. President: I rise to offer an amendment to section five. THE CHAIR. The Chair is of the opinion that it is too late. Section five has been agreed to. MR. HILBORN. Mr. President: I move that we take a recess until two o'clock. The next section is the famous whipping-post section, which was got through the Committee of the Whole. I see that Mr. Campbell is not here, but he probably will be after recess. We ought to allow him to be here, and I make that motion, that we take a recess until two o'clock, when the train will arrive. I do not state positively that he will be here. MR. TULLY. He will be here on the train, so he told me. This is a very important question. The motion was lost, on a division, by a vote of 44 ayes to 48 noes. THE CHAIR. The Secretary will read section six, as reported by the committee, and then section six as proposed to be amended by the Committee of the Whole. THE SECRETARY read: PUNISHMENTS. SEC. 6. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted; nor shall witnesses be unreasonably detained, or confined in any jail or room where criminals are usually imprisoned. The following amendment was reported by the Committee of the Whole: "SEC. 6. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted. But nothing herein contained shall be construed to prohibit the infliction of corporal punishment for crime. Witnesses shall not be unreasonably detained, or confined in any jail or room where criminals are actually imprisoned." MR. MURPHY. Mr. President: I move to strike out, in lines four and five, the words, "but nothing herein contained shall be construed to prohibit the infliction of corporal punishment for crime." MR. AYERS. I second the motion. Upon the amendment the ayes and noes were demanded by Messrs. Ayers, Filcher, Shurtleff, O'Sullivan, and Murphy. The roll was called, and the amendment adopted by the following Larkin, Lavigne, Lewis, Rolfe, McCallum, McCoy, Moffat, Morse, Murphy, Stedman, Stevenson, Shurtleff, Tully, Vacquerel, Walker, of Tuolumne, Waters, Smith, of Santa Clara, Weller, Smith, of 4th District, Wellin,. Smith, of San Francisco, White, Soule, Wilson, of Tehama, Wyatt-59. "Strike out the words 'jail or,' in the sixth line." THE CHAIR. The question is on the adoption of the amendment offered by the gentleman from San Joaquin, Mr. Lewis. The amendment was adopted, on a division, by a vote of 50 ayes to 34 noes. MR. JONES. Mr. President: I desire to give notice that I will, on to-morrow, move to reconsider the vote by which the amendment of the gentleman from San Joaquin was adopted. THE CHAIR. Gentlemen who have given these notices are all requested to send their notices up in writing, and there will be no mistake. The question is on the substitute reported by the Committee of the Whole, as amended. The Secretary will read it as amended. THE SECRETARY read: "SEC. 6. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted. Witnesses shall not be unreasonably detained, or confined in any room where criminals are actually imprisoned." MR. ROLFE. Mr. President: I rise to a point of order. It is the same point I raised before. I read Rule Forty-nine: Every resolution proposing any alteration in the Constitution, shall be read on two several days before it is finally acted upon and adopted by the Corvention." This section six has been amended some now, and before we can finally adopt it, it will have to be read on to-day, as amended, and then on some other day. THE CHAIR. The point of order is not well taken in the pending question. The ultimate question will be on the passage of the substitute after agreeing to it. We have not yet reached the ultimate question. At that time the gentleman can make his point. MR. WEST. I move that the further consideration of section six be postponed until to-morrow. [Cries of "No," and great confusion.] THE CHAIR. The question is on agreeing to the substitute. The amendment of the Committee of the Whole as amended was adopted. MR. WELLER. I move to strike out in section six the words " nor shall cruel or unusual punishments be inflicted." THE CHAIR. The Chair is of the opinion that the amendment is not in order. MR. BEERSTECHER. Mr. President: I give notice that I will move to reconsider the vote by which the section as amended was adopted. [Cries of "Call the roll."] MR. GRACE. Mr. President: I move that the Convention take a recess until two o'clock. It is within ten minutes of the time. THE CHAIR. The Secretary will read the substitute as amended. This is the ultimate vote. THE SECRETARY read the section amid great confusion. THE CHAIR. The hour having arrived, the Convention will take a recess until two P. M. AFTERNOON SESSION. The Convention reassembled at two o'clock P. M., President pro tem. Belcher in the Chair. Roll called, and quorum present. RESOLUTION-COMMITTEE ON ADDRESS. MR. TINNIN. Mr. President: I wish to offer a resolution. Resolved, That the President of this Convention is hereby authorized to appoint a committee of five members of this body, whose duty it shall be to draft and publish a memorial to the people of this State, such recommendations as they may think proper in regard to the adoption of the Convention [Constitution?] formed by this body. Said memorial or recommendation to be ratified by this Convention before publication. MR. TERRY. Mr. President: I move that the resolution be laid upon the table. Carried. NOTICE. MR. WILSON, of Tehama. Mr. President: I wish to send up a notice. THE SECRETARY read: "I hereby give notice, that on the twenty-eighth instant, I will move to reconsider the vote by which the Convention adopted section three, of article one, of the Constitution, as reported by the Committee on Preamble and Bill of Rights." RECONSIDERATION. MR. ROLFE. Mr. President: Pursuant to notice heretofore given, I now move to reconsider the vote by which the Convention last Saturday refused to adopt the amendment to Rule Twenty-four, offered by Mr. McCallum. MR. HARRISON. I rise to a point of order. The gentleman voted in the negative, and is not entitled to make this motion. MR. ROLFE. It will be observed that this is a motion which requires a two-third vote to carry. I voted with the losing side. There were sixty-three ayes and thirty-nine noes, and I was one of the sixty-three. It will take more than sixty-three to carry. THE PRESIDENT pro tem. The motion is made to reconsider. MR. MCCALLUM. I wish to say, that the gentleman who makes this motion THE PRESIDENT pro tem. The Chair has entertained the motion. The question is upon the motion to reconsider. MR. WATERS. Mr. President: I move that this motion be made the special order for two o'clock to-morrow afternoon. By that time, we can see whether it is necessary to amend the rule or not. Carried. PETITION. MR. FILCHER. Mr. President: I wish to present a petition from citizens of Newcastle, requesting the exemption of certain property used for charitable, educational, and church property, from taxation. THE PRESIDENT pro tem. If there is no objection, it will be received and laid on the table, to be considered with the article on revenue and taxation. REPORT. MR. HILBORN. Mr. President: I rise to a point of order. I don't think that these notices of motions to reconsider an amendment that was adopted or rejected are in order. I think the only motion that can be made to reconsider is on a section that has been adopted or rejected. THE PRESIDENT pro tem. Those are questions that will rise to-morrow when the notices are called up. MR. HILBORN. What will be done with this? MR. JONES. I hope the President will decide now. THE PRESIDENT pro tem. Not being very well acquainted with this matter I have been speaking to others about it, and it strikes me that the motion ought to go to the section. But I cannot pass upon it now. The section before the Convention is section six as amended. The Secretary will call the roll. The roll was called on section six, as amended, and it was passed by the following vote: AYES. Herrington, Hilborn, Howard, of Mariposa, Huestis, Hughey, Hunter, Jones, Joyce, Larkin, Lavigne, Lewis, Mansfield, O'Sullivan, Reddy, Rhodes, Rolfe, Shurtleff, Smith, of Santa Clara, Smith, of 4th District, Smith, of San Francisco, Soule, Stedman, Steele, Stevenson, Stuart, Swenson, Swing, Terry, MR. HUESTIS. I move that the recommendation of the committee MR. HILBORN. Mr. President: I will say this, that the Journal Clerk has shown to us conclusively that he will not be able to get out the Journal for to-morrow morning. Throughout the session we have we have been working most of the time in Committee of the Whole. where the roll was not called, and where the amendments offered were not recorded, hence the Journal has been very light; but now we have got back into Convention where we will have roll calls, not only upon the main propositions, but upon amendments. There are some ten or twelve to-day, and whenever there is an amendment proposed it must be reported in the Journal, and it will at once become very much larger, and it will be impossible for one man to complete the Journal in time for it to go to the printer that night. I believe, from the information we have, that it is a necessity. It has been suggested that one of the Clerks at the desk might be detailed to do it, but the work of the Clerks will be increased also, and it will be hardly fair to take a Clerk who has worked hard all day and detail him for night work. It seems to me the very best kind of economy. MR. BARBOUR. This provides that the President shall appoint a Journal Clerk. It seems to me, if I remember rightly, the rules of this Convention provide that the Convention shall elect. I make the point that it is not in order. The resolution was adopted. NOTICE OF RECONSIDERATION. MR. JONES. Mr. President: It was held by the President that motions to reconsider should be sent up in writing. I wish to send up the following notices. THE SECRETARY read: "I give notice that to-morrow, January twenty-eighth, I will move the Convention to reconsider the vote by which the Convention voted to strike out from line five, of section six, of declaration of rights, the words 'jail or.'" "Also: I give notice that to-morrow, January twenty-eighth, I will move the Convention to reconsider the vote by which the Convention has to-day voted against the amendment offered by me to section two, of article on declaration of rights, viz.: to amend said section by inserting in line, between the words 'same' and 'whenever,' the following words: by proceedings in accordance with law.'" MR. TERRY. My recollection is that the gentleman voted with the minority. MR. JONES. I voted for the express purpose of moving a reconsideration. Caples, Glascock, Heiskell, THE PRESIDENT pro tem. The Secretary will read section seven. THE SECRETARY read: inviolate; but in civil actions, and in cases of misdemeanor where the SEC. 7. The right of trial by jury shall be secured to all, and remain punishment does not exceed six months' imprisonment or a fine of five hundred dollars, or both, three fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, in open Court expressed, and in civil cases by the consent of the parties, signified in such manner as may be prescribed by law. In civil cases, and cases of misdemeanor, the jury may consist of any number, less than twelve, that the parties may agree upon in open Court. NOTICES. MR. JONES. I am uncertain as to what will be the ruling of the Chair, so I will give notice that on to-morrow I will move to reconsider the vote by which section six was adopted. MR. TERRY. Mr. President: I wish to send up a written notice. "I hereby give notice that on the twenty-eighth instant I will move to reconsider the vote by which the Convention decided to adopt section six, of article one, of the proposed Constitution." THE PRESIDENT pro tem. The Secretary has read section seven, as adopted by the Committee of the Whole. There is nothing else before the Convention. The Clerk began to read the original section, as reported by the Committee on Preamble and Bill of Rights, and the Chair rules that the section as reported by the Committee of the Whole is the one to be read and acted upon. MR. LARKIN. I appeal from the decision of the Chair. My ground is this: that section seven, as reported from the Committee on Bill of Rights, has never been acted upon in Convention. Section seven, as reported by the Committee of the Whole, was considered in Convention, and reported back. The section as amended is before the Convention. I hold that that is the section to read, and then the amendment proposed by the Committee of the Whole. MR. TINNIN. Mr. President: I think in the present instance only the report of the Committee of the Whole is before the Convention. If any gentleman desires to substitute the other section it is an easy matter to offer it. MR. WEST. Mr. President: The Convention originally appointed regular standing committees. Those committees reported to the Convention, and the Convention accepted their report, and referred these reports to the Committee of the Whole. The Committee of the Whole had under consideration these reports, and recommended substitutes therefor. The question now properly before the Convention is, shall the Convention concur in the recommendation of the Committee of the Whole? If the Convention refuses to concur in the recommendation, then the question comes on the original section as reported by the standing committee. MR. ESTEE. Mr. President: This strikes me as being a very clear proposition, and the only question before the Convention now is: Shall the recommendation of the Committee of the Whole be concurred in and adopted by the Convention? This Convention resolved itself into Committee of the Whole for the purpose of such legislation, and after having acted on the reports, reported them back to the Convention with the recommendation that they be adopted by the Convention as amended. This is the usual course in legislative bodies. Now, the question before the Convention is: Shall the recommendation of the Committee of the Whole, as to section seven, be adopted by the Convention? That is the first and only proposition. But any gentleman has a perfect right, under the rules, to move an amendment. That is the privilege of any gentleman on this floor. But the original section is not before the body, because it was disposed of by the Committee of the Whole. The Committee of the Whole refused to adopt it, and did adopt another one. MR. WEST. Can the Committee of the Whole dispose of anything. MR. ESTEE. Yes sir, they have that right. MR. WEST. Their action has to be passed upon in Convention, and if the Convention concurs, then that disposes of it. MR. ESTEE. Certainly, and that is the first question-shall the action of the Committee of the Whole be adopted by the Convention, as to section seven. If it is so adopted, that disposes of it. If it is not, then it is either stricken out or amended. I appeal to any of the old members who have served in the Legislature, if that has not been the rule always. I understand that it is the rule in other bodies. If it was not, the action of the Committee of the Whole would have no binding force upon this body. This is a matter of some importance, and I think we should settle it right now. I think my friend Larkin is clearly in error. MR. ANDREWS. Mr. President: If I understand the question correctly, it is not as stated by Mr. Estee; but the question is, whether the section, as reported by the committee, shall be read first. That is the question. MR. ESTEE. If it was not read, then it will have to be read. I cannot say whether it has been read or not. MR. ANDREWS. I understand the Secretary was about to read the section as reported by the committee-not the section as reported by the Committee of the Whole. The Chair ruled that he should not read that, but the amended section, as reported by the Committee of the Whole. I contend that the recommendation of the standing committee ought first to be read; then that the amended section, as reported by the Committee of the Whole, should be read. MR. MCFARLAND. Mr. President: It seems to me, sir, that the ruling of the Chair is perfectly correct. The original section seven is not before the Convention at all. This Convention appointed a Committee on Preamble and Bill of Rights, to present to this Convention their suggestions as to what should be adopted. When the Convention got hold of these reports what did they do with them? They referred them to the Committee of the Whole. The Committee of the Whole took charge of them, and they have reported them back to the Convention. Now all there is before the Convention is what the Committee of the Whole reported. They reported section seven as amended, and the original section is not before us at all. It has been disposed of by another committee. It was stricken out and an amended section reported in its place. The question, then, before the Convention is that amended section. MR. JONES. Mr. President: I don't undertake to say what the precise effect of the step taken will be, but there was another step in the proceeding. The Committee on Bill of Rights made their report to the Convention. Now the Convention, upon the earnest solicitation of the Chairman of the Judiciary Committee, referred to the Judiciary Committee sections seven, eight, nine, thirteen, and fourteen, and that committee made a report on these sections, which will be found under date of November first, eighteen hundred and seventy-eight. Now I do not remember precisely the action that was taken on the report of the Judiciary Committee, but my recollection is that the report was adopted and substituted in lieu of the report of the Committee on Bill of Rights, as to these four sections. If we did adopt that report, that will alter the case. My impression is it was adopted. MR. STEDMAN. I shall vote to sustain the Chair. I hold that the report of the Committee on Preamble and Bill of Rights was disposed of by the Convention when it referred it to the Committee of the Whole, and this is the report of the Committee of the Whole. I hold that the report of the Conimittee of the Whole is now before this Convention for action. In support of that I wish to read from Cushing's Law and Practice, paragraph two thousand and fourteen MR. TINNIN. I rise to a point of order. There is no appeal from the decision of the Chair. THE PRESIDENT pro tem. I will state to the gentleman from Trinity that there is no second to the appeal. The Chair decides that the report of the Committee of the Whole is before the Convention for action, and that the original sections will not come up for action unless offered in the shape of amendments. tee. MR. LARKIN. I wish to ask you a question. Suppose we take up an amended section as reported by the Committee of the Whole, and the Convention refuses to concur in the recommendation of the commitWhat is our position then? Then you will have to take the original section. This Convention may perfect the section, may it not? MR. ESTEE. Then the original section comes up. There is no doubt MR. CAPLES. Mr. President: I confess I am heartily sick of this discussion -sick of it. If it had been proposed here how many two and about that. three make, and should have gone into a discussion to determine what the sum total of two and three were, I should have been about equally ashamed. Now, in all reason and common sense can there be any question about what is before the Convention. Is there anybody here who can doubt what is before the Convention? Certainly there is not. The report of the Committee of the Whole is before the Conventionnothing else. Why, do you propose to set aside the amended section for the original section, which was rejected? Why, I never heard of anything so preposterous in my life. There is nothing before the Convention but what was reported by the Committee of the Whole, and everybody knows it, or ought to know it. THE PRESIDENT pro tem. There is nothing before the body except the appeal. MR. LARKIN. I withdraw the appeal. THE PRESIDENT pro tem. Then the question comes on the adoption of section seven, as amended and recommended by the Committee of the Whole. MR. HERRINGTON. Mr. President: I wish to offer an amendment. THE SECRETARY read: "Strike out all after the word 'actions,' in line two, down to and including the word 'both,' in line four." REMARKS OF MR. HERRINGTON. MR. HERRINGTON. Mr. President: That will make the section read, that in civil cases three fourths of the jury may render a verdict. There are a vast number of criminal actions that are less than felonies in magnitude, but equal in their disgraceful effects upon human character, and I submit that the rule that there shall be a unanimous verdict in all criminal cases should not be departed from, unless there is some stronger reason presented than was presented before the Committee of the Whole. It was argued upon that proposition, that crimes of the character of misdemeanor were not of sufficient magnitude to require a verdict in all cases to be unanimous. In criminal cases, a man's liberty is just as dear to him when considered in connection with the County Jail as with reference to the State Prison. In either case he is deprived of his liberty, and it is equally disgraceful in the eye of the law and in the sight of humanity as when he is sent to the State Prison by the unanimous verdict of a jury. Their effects are oftentimes equally destructive of character and upon society. There should not be any distinction made with reference to the punishment, when the liberty of the citizen is at stake. I do submit that this change from the old rule ought not to be made. There out to be a unanimous verdict in all criminal cases. MR. ANDREWS. Mr. President: I suppose it is unnecessary for me to say to this Convention that this is the section of the present Constitution. I do hope, sir, that the Convention will take this matter into serious consideration, and not make this innovation upon the jury system which is contemplated in the section reported by the Committee of the Whole. I am in hopes that this Convention is not prepared to try any such experiment as this, or to incorporate into the Constitution any such section as this proposed section. It is really, sir, virtually doing away with the jury system. It is a sacred system, which has been handed down to us through the wisdom of ages. If there is anything more dear to the American heart than another, it is that a man shall not be deprived of life or liberty without the unanimous verdict of twelve good men. And, sir, I do not believe that we are prepared to depart from this rule, so far as any grade of crime is concerned. I do not believe we will provide in the Constitution that any citizen of the State of California may be convicted of any crime except upon the unanimous verdict of twelve men. I believe we are ready to adopt the amendment as proposed by the gentleman from Santa Clara; but it does not go far enough. Why make the departure in relation to civil cases? Why depart from a perfect verdict? and a perfect verdict can only be obtained by having a unanimous verdict. I say, the idea of a perfect jury has been handed down to us through centuries, and that is the unanimous opinion of twelve good and true men. I would rather you would reduce the jury to six men and make their verdict unanimous, than to make the jury consist of twelve men, and allow three fourths of them to render a verdict. I wish to call your attention to the position in which we have placed ourselves. I say, it is a dangerous innovation, and one we should thoroughly consider before we adopt it. I do hope that the Constitution as it stands now will remain the Constitution of California in this regard. REMARKS OF MR. CAPLES. MR. CAPLES. Mr. President: I desire to correct the gentleman from Shasta. He alludes to this section as having been reported by the Coinmittee on Preamble and Bill of Rights. Now, if the gentleman will look back and reflect, he would recollect that the first section here which some gentlemen wanted to have read, was the section reported by that committee. That section was rejected. After having discussed it for some time it was referred to the Judiciary Committee, and the Judiciary Committee took several days to consider it, and did thoroughly consider it, and reported it, after several days, to the Convention. Now, the second section seven, as read from the desk, is the section that was formulated by the Judiciary Committee, and not the section reported by the Committee on Preamble and Bill of Rights. Now, sir, in regard to the merits of the proposition, I cannot but reflect how the gentleman from Shasta, being a lawyer, could think it so necessary, so essential to the rights and liberties of the people of this State, that a man who follows put upon trial under this system, he must have a unanimous verdict. But when it comes to a question involving a man's property, we propose to allow a three-fourths verdict. I hope that few gentlemen on this floor have come to value property more highly than individual liberty. They don't realize that there is a great difference between taking a man's liberty away unjustly, and taking his property. We must remember that in civil cases if the jury make mistakes now there is a higher tribunal which can pass upon the mistake and correct it. But, sir, in criminal prosecutions, if the jury makes a mistake as to facts, I take is without a remedy. There is no way by which a man unjustly convicted of crime, by a majority of a jury, can have the case raised again. Let us consider these matters. Let us not be too hasty about it. I believe in throwing all the safeguards we can about individual liberty. We do not know how soon this question may come home to us. Innocent men have been accused of crime in the past, and will be again. They have been placed under very adverse circumstances, and will be so placed again. I hope that the amendment proposed, which will result in saying that a man shall not be deprived of his liberty except twelve good and fair minded men are convinced of his guilt, will prevail. If a man is clearly guilty, I believe twelve men can always be convinced of the fact. REMARKS OF MR. MCCALLUM. thieving should be entitled to a verdict of a unanimous jury. But if he be a murderer, and his case comes up in the Supreme Court, why it is not necessary to have a unanimous Supreme Bench to say whether the bill of exceptions shall entitle him to a second trial or not, while the chicken thief must have a unanimous jury of twelve mer-a unanimous verdict. Where is the logic of the thing? I see no sense in it, and if there is any I think the gentleman from Shasta must have a monopoly of it. This proposition was formulated by the Judiciary Committee, with a great deal of care and pains. It was a compromise measure, and having been adopted by the Committee of the Whole should receive the sanc-beg the Doctor to remember that there is no appeal, and that the mistion of this body. Why not? Well, if you take the theory of the gentleman from Shasta, that a chicken thief should have a unanimous verdict, while the man whose life hangs in the scale can only have a majority of the Court-if you accept that theory, I can see where the logic comes in. But I deny that there is any reason or sense, and I maintain that the innovation, if it be such, and it is, is one that is dictated by every consideration of sound public policy. Now, let us see what the result of a unanimous verdict is. Here is a petty larceny thief, tried by a jury of twelve men. There may be one man on that jury, who, through feelings of sympathy for the prisoner, may control the other eleven. They fail to agree, and the result is he must go back to jail and wait for another trial. It may be nothing to him, because his time is of no valne; but in the meantime the taxpayers are footing the bill, to subserve no good purpose, but rather to defeat the ends of justice. I deny that there is any sense, or logic, or sound public considMR. MCCALLUM. Mr. President: As a general thing, all these diserations in this system. It was expected that there would be some inno-cussions should be conducted in Committee of the Whole. I regard the vations upon the old Constitution; hence this Convention was called. pending amendment, however, of the gentleman from Santa Clara, one But, sir, if we are going to tie ourselves down by an iron-bound rule, of such importance as to justify me in saying a few words in favor of and say we will make no innovations, then we do not need any Conven- the amendment. I submit that the proposition reported by the Comtion; we do not need a Legislature once in forty years. But, sir, we are mittee of the Whole is grossly inconsistent in itself, in this: it makes a I submit to every member of this not acting upon that theory. We are acting upon the theory that this distinction between criminal cases. country and this people are progressing, and that new emergencies are Convention, and especially to every lawyer who is familiar with criminal constantly arising. I hope, sir, that the amendment will be voted down, practice, that it will work an injustice. It is making a distinction in forty to one. crimes where there is no sufficient difference. It is a distinction against the humbler class of criminals. I have little to say about the old ConMR. BROWN. Mr. President: I am not one of those who believe institution. This jury system has come down to us for ages, as far as that is concerned. But in this age of improvements and material progress, great innovations, but I am under the impression that this matter has been lawyers will be far short of being even with the age, unless they can studied upon and thoughtfully considered and acted. upon by the Com-devise improvements in the system of jurisprudence. But, sir, mittee on Preamble and Bill of Rights, and then by the Committee of the Whole. We all know that this matter of jury trials has been dis-pose to be consistent. When you propose to make a distinction of this cussed and canvassed before the people of this State before the meeting victed by a part of the jury, while another class shall have a unanimous kind, when you propose to say that one class of criminals may be conof this Convention, and it was the impression adopted long ago that jury, you are making a distinction that is beneath the dignity of a Conunanimous verdicts were hurtful, and did not subserve the purposes for stitution. I have been unable to find such a provision, and I may safely which they were intended. After discussing this matter thoroughly in. say there is no Constitution in the civilized world where the right of committee, and then in Committee of the Whole, I have nothing to say. trial by jury has been infringed as it is proposed here. I believe that no new light can be shed upon this question, and I hope the Convention will come to a vote upon it, and adopt it as it was adopted by the Committee of the Whole. REMARKS OF MR. BROWN. REMARKS OF MR. REDDY. pro MR. REDDY. If a man steals forty-nine dollars, nine men may convict him; but, if he steals fifty dollars, it requires a unanimous verdict. MR. MCCALLUM. Yes, sir; the point is well made. MR. HILBORN. Does it not make this distinction, that one is confined in the County Jail and the other goes to State Prison? MR. MCCALLUM. That is no answer to the objection of giving one cases, such as libel, where the punishment is greater than imprisonment. It may be twelve months, or it may be five thousand dollars, and yet be a case which don't blast a man's reputation in the slightest degree, and the verdict must be unanimous. But if it is for stealing forty-nine dollars and ninety-nine cents, involving the character of the man, nine out of twelve can find a verdict. The gentleman proposes to strike out certain words, which will leave the section complete. I hope we will strike out these words, and let it stand as it always has stood in this Constitution and in other Constitutions. I prefer the amendment to the old Constitution, because, in civil cases, there is no wrong to anybody. This is safe enough in criminal cases, and will save costs to the parties oftentimes. MR. REDDY. Mr. President: It has been the habit of Judges to charge juries in all criminal prosecutions that the defendant is entitled to the benefit of all reasonable doubts. It has been a fundamental prin-class of crimes a different mode of trial from another. There are many ciple of criminal jurisprudence that every man charged with crime shall have the benefit of the doubt. Now you propose to not only change that system, but also to change another principle. What will be the use of the Judge charging the jury that the defendant is to have the benefit of all reasonable doubts, when, at the same time, you say that three of the jurors may doubt as much as they please-in fact, may be convinced of the entire innocence of the defendant, and yet not avail anything? That nine of them may be convinced beyond all reasonable doubt, but the other three may doubt as much as they please. In order to change the jury system you will have to change the entire common law rule of evidence, which has been sanctioned by the wisdom of centuries, that if the facts of the case are insufficient to convince the mind beyond all reasonable doubt, the defendant is entitled to an acquittal. Now, it seems to me that we ought at least to be consistent in providing for any change in the system of criminal jurisprudence. It seems to me that this change will not be applicable hereafter. Then what rule will you apply where three fourths of the jury may render a verdict? What sort of a rule will you apply? You must say first, that a preponderance of evidence is sufficient, and having said that, you say how many of them shall determine what is a preponderance of evidence. I am satisfied that we ought to allow the jury system to remain as it is. I shall therefore vote for the amendment offered by the gentleman from Shasta. REMARKS OF MR. HILBORN. MR. HILBORN. Mr. President: I am in favor of the section as reported by the Committee of the Whole. It has met their approval, and I believe it is exactly right. Every lawyer recognizes this fact, that if he has a good case, he will trust to the Judge, and when he has a bad case he always wants a jury called, from the fact that he has a chance to get some one man upon the jury favorable to his side, and thereby defeat the ends of justice. I believe this amendment is clearly in the interest of the people. REMARKS OF MR. CROSS. amendment by the gentleman from Santa Clara, Mr. Herrington. The roll was called, and the amendment adopted by the following vote: Andrews, Dowling, Dudley, of Solano, MR. CROSS. Mr. President: In Committee of the Whole I spoke upon this question. It seems to me that the argument to day does not meet the whole of this question. We have a law to punish the guilty, Herold, but that law is also for the purpose of protecting the innocent. We Herrington, must not forget that innocent men are often accused of crime. Now, I am for the jury system as it has been. I am for that jury system Ayers, because it has worked well. I am for that system because it is a perfect | Barry, barrier against injustice, persecution, and oppression. One gentleman Barton, who spoke so pleasantly, Mr. Caples, said that if a chicken thief was Belcher, AYES. Howard, of Mariposa, Ohleyer, O'Sullivan, Reddy, Rolfe, Shurtleff, Smith, of San Francisco, Hughey, Hunter, Jones, Joyce, Keyes, Kleine, Larkin, Swenson, |