REMARKS OF MR. CROSS. damage to the land that is taken is very small while the damage to other and if any man desires to have the benefit of the railroad he can have property not taken is very large. It seems to me that this amendment it by paying just what the railroad company asks him for enjoying the places it beyond question. How can it be said that there are any other privilege. This is one difference, or one reason why the rule for laying benefits than the benefit to the whole community? What particular out a public road and for damages in such a case is not a good rule for benefit is it to a man to have a railroad run directly through his place? damages in the case of these quasi public corporations who may take It seems to me that this amendment will put that question at rest and private property for their public use. As was suggested here, these settle it. prospective damages can be taken into consideration as well as the prospective benefits, and I will give you a true example of it from the words of one of the gentlemen who spoke on the other side. It was MR. CROSS. Mr. Chairman: This right of eminent domain is per- said that under these provisions a farm might be taken to be used as a haps the highest right exercised by government; a right under which place to deposit tailings. Suppose that can be done under the princione individual really gets the benefit of taking away the property of ples which they want left in the Constitution, whenever parties propose another without the consent of the owner. Now, if that is the highest to take a farm as a place to deposit tailings upon, the man who proposes to prerogative of this goverement, it ought to be guarded, and pretty well take it as a field to dump his tailings on has the right to say to the guarded too. In framing a Constitution, we should put into it such pro-man whose land is taken, “Sir, tailings will improve your land. True, visions as we think will protect private rights, and the proposition of I take your land to deposit tailings on, but in five years the tailings will the gentleman here that it is not the proper place to guard these rights make better soil than you have to-day." Then the jury take into in Constitutions, is disputed by the fact that a large number of Constitu- consideration the fact that at some future time the soil will be better tions have incorporated similar provisions. One of them has almost the than it is now. That is an illustration of the result of what the genwords in which Mr. Dudley has proposed it. The Constitution of the tlemen want to engraft upon this system. But if, as they say, to put State of Iowa has a provision which I will read: this provision in here will have no effect, I ask why it is that since this "Private property shall not be taken for public use without just com- question has been up certain gentlemen, whose motives and intentions pensation first being made, or secured, to be paid to the owner thereof, are not known, are standing about the doors of our Convention, and -as soon as the damages shall be assessed by a jury, who shall not take sending in for gentlemen to come out and talk with them on this very into consideration any advantages that may result to the said owner on provision? I ask, if this has nothing to do with these matters, why it account of the improvement for which it is taken." is that gentlemen who have been guardians of these rights for some Now, the proposition clearly stated, as I understand it, is this: The years back are excited, and make such eloquent speeches on these matproposition first proposed to the committee amounts to this, that if the ters? I wish that some abler man than I could deal with this question, railroad company means to take half of my land, and takes it in such a some man who could rivet the attention of this body to the real way that not merely the land is taken but adjoining lands are injured,question at issue for a moment, would stand up here and advocate this then the question will take the shape stated by Mr. Barnes. If the rail-matter. But the principles we advocate are right and we must stand road runs between my house and my barn they pay for the acreage for them. That is what we are here for, and if we cannot talk--well, taken. They may also be assessed for the damage which it is to me to we know how to vote right on such propositions. [Applause.] have a railroad between the house and barn, but they may offset against that the fact that I may derive some advantage by having the railroad so located. Now the objection to leaving the definition in the shape that the benefits may be offset against the damages, is illustrated by a case like this, which came within my personal knowledge. The railroad which runs from the City of Chicago to the City of Joliet, in condemn-opposed to this amendment, but they will put this safeguard in the ing a right of way, had to take from a large building the ground upon which a wing of the building stood. Now the community were greatly interested in having that railroad constructed. Their minds were inflated with ideas of the great advantages to be derived. So they took the ground upon which the wing of the house stood and the railroad track run within thirty feet of the side of the building. When the jury came to assess the damages the evidence introduced as to the benefit which would result was to this effect: that this building was a large building; that it could be turned into a boarding-house or a place for the traveling public to put up; people would put up at the house on account of its proximity to the railroad; and that the advantages to accrue in that way would more than offset the increased danger of fire and the inconvenience of alarms at unreasonable hours, and other prospective damages. And the jury brought in no damages on account of the proximity of the railroad track to the building. But when the man came to try it on and make a boarding-house out of it, he found the station located at another place, MR. HITCHCOCK. Mr. Chairman: My reason for offering that and the result was that the man's property was ruined. The danger in amendment is to cover an interest in the county in which I live, and I this class of cases is this--and I refer to General Howard for the expe- think the same interest exists in a large portion of the State. It is to riences of southern California during the late construction of railroads in secure the right of drainage. During the Winter our land is subject to that country-that when men hear of a railroad coming they almost overflow, and now we have no means by which we can get drainage. One think that it is heaven come down to earth. Land worth five dollars individual can block up a country of ten or fifteen thousand acres of an acre is going to be worth fifteen or twenty dollars an acre. Some-land, and you cannot buy a right of way from him. There was a bill times that happens and sometimes it don't. But the ordinary jury, as to cover our case, but it was inoperative because it was considered unconto the question of benefits, do become inflamed until they give unrea-stitutional. We think there should be some way provided in this Consonable benefits, and that will be the observation and experience, I stitution by which we could have the power, by paying for the right, to think, of men who have seen the thing. I have seen railroads con-reclaim our lands. That is all. structed in a certain town where a man could hardly get the government price for his land, on account of the inflamed sentiment of the public as to benefits. But what is the fact? The land adjacent that is not taken is benefited even more. The men whose lands are immediately adjacent do not get the benefit. Who does not know that the lots one or two or three blocks off are even more benefited? Then the result of the rule amounts to this: that the man over whose ground the railroad is constructed receives really no benefit from the construction of the road, because they take from him the measure of damages, or take it in such a way that he receives no benefit. But other men, through whose land the railroad does not run, get the benefit of the railroad and stand no part of the damage. MR. BARTON. Mr. Chairman: I do not intend to make a speech upon this proposition at all; but, Mr. Chairman, I desire to say a few words. If the members of this Convention desire to do the people of this State a good-if they desire to render the people of this State a safeguard-they will not listen to the sophistries of the gentlemen Constitution in behalf of the people. I shall support this amendment, and these are the reasons why I shall support it: because I believe that it is the only safeguard that can be placed in this connection. THE CHAIRMAN. The question is on the adoption of the amendment offered by the gentleman from Solano, Mr. Dudley. The amendment was adopted. THE CHAIRMAN. The question recurs on the amendment offered by the Committee on Judiciary as amended. MR. HITCHCOCK. Mr. Chairman: I have an amendment to offer. "Private property shall not be taken for private use, with or without compensation, unless by the consent of the owner, except for right of way for drainage ditches across the lands of others for agricultural, mining, and sanitary purposes, in such manner as may be prescribed by law." MR. TERRY. Mr. Chairman: I offer an amendment to that, to follow after the last word of that. THE SECRETARY read: "Provided that any resident of this State who is, or who has filed his declaration of intentions to become, a citizen of the United States, and who is not the owner of one hundred and sixty acres of land, may enter upon, take, and hold, for the purpose of cultivation or residence, any unoccupied or uncultivated land in this State, not exceeding one hundred and sixty acres, upon his paying the owner thereof, or depositing to his credit in a solvent bank, the value of such land, as the same is entered upon the assessment roll for State and county taxes made last before such entry, with twenty per cent. in addition to such assessment Now, as to this legislative provison, it seems to me that in the main it value, and from the time of such payment or deposit the party so enteris a very good one. But we have not merely to inquire as to the qualitying shall be the owner of, and be entitled to the exclusive possession of the present legislative enactment. We have to inquire as to the cer- and use of such land." tainty of its being a permanent provision. If this enactment of the Legislature is in that shape that no railroad influence can shake it; if it is in that shape that twenty-five years from now it will stand just as it does to-day, it might answer the purpose very well. But who is not familiar with the fact that not only in this State, but in every State in the Union, the railroad power has been strong enough, whenever it took the matter thoroughly in hand, to control legislation, and to get such legislation as it seemed to want. Now, sir, we have a duty to perform here in making such a permanent provision in regard to this matter as seems to us necessary and right. The question is asked, what difference is there between the method of assessing damages for laying out a public road and for laying out a railroad? My idea of the matter is this: when you have laid out a public road every man has a right to I will state briefly the object of my offering this amendment. The the benefits of that road without cost or expense, and it is maintained reason is this: the amendment proposed by the Committee on Judiciary by the public taxes. But when we come to talk about a railroad, rail-is good, with the one exception that it allows the property to be taken roads are not built for the public good. They are built for private gain, when the complaint is first filed in the suit, by making a deposit in MR. TINNIN. Mr. Chairman: I rise to a point of order. It is that the amendment is not germane to the subject before the house. THE CHAIRMAN. This amendment was only read for information. It was offered as an amendment to the amendment offered by the gentleman from San Joaquin, Mr. Hitchcock. The Chair is of the opinion that both are in violation of Rule Twenty-eight, which says: "No subject different from that under consideration shall be admitted under color of amendment." MR. WATERS. Mr. Chairman: I move to amend section fourteen so that it will read: "Private property shall not be taken for public use without just compensation having first been made to, or ascertained and paid into the Court for the owners." That would stand as reported, and that the amendment of the gentleman from "Amend section fourteen, by adding the following, namely: No right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law." Court. Now, it seems to me that is not the object of this Convention, but that is the way it reads, and it has been adopted. In other words, it says the taking shall be when the money is paid into Court as security. Now, as I understand it, the Convention does not wish the deposit put there as security. It seems to me that this Convention adopted that amendment without consideration, or without understanding it. is its effect, unless I have mistaken its reading. Now, the reason why I support this amendment in preference to that part of the old Constitution upon the same subject is this: this clause, as Judge Cooley says, is liable to construction, one way or the other, and while we are sitting here we should do away with the chance of misconstruction. I think we should make the terms so plain that the Supreme Court, or the Supreme Court lawyers, may not be able to get around it. It says that the damages shall first be ascertained and paid into Court, where they can get them, after being ascertained by the jury; that he can receive his pay, if he desires to receive his pay, or he can let it remain there until the final termination of the case. I think that that is all we could ask, and it seems to me that the Convention should adopt it. But the amendment you have already adopted, although it allows them to take the property of that man, he may not have the right to go there and draw down the money. I think that is a mistake you have made. MR. BARNES. Mr. Chairman: During the remarks of the gentle-made in money, or secured by a deposit of money to the owner, irreman from Nevada, Mr. Cross, I had occasion to speak to a member in another part of the room, and I went there and did not hear his speech, at least not all of it. But following that the amendment was adopted. I think that there should be some little care about the adoption, and certainly about the phraseology of an article that is to stand for so long a time. [Cries of "louder."] A very distinguished gentleman was once making a speech and somebody kept halloing "louder, louder," and he said he doubted not that at the last day, when the heavens should be rolled away as a scroll, and the elements were melted away with fervent heat, and men should be summoned to the judgment, there would be some fellow from that part of the hall halloing louder, louder." I think if the gentlemen wish to listen they can hear. But with reference to this amendment, I wish it to be understood that I desired, and I so stated, to see the results of the statutes and the decisions of the Supreme Court crystallized into this Constitution, so that they will stay there. That was my idea, and I supposed that the debate would continue long enough to enable us to effect that object. I would suggest now that this section be referred back to the committee for to-night, to present to-morrow a properly phrased amendment to the section, if the committee so desire, which shall fix it so as to conform to the statutes as now determined by the Courts of the State. MR. HAGER. Mr. Chairman: I ask that the proposition be read as amended. The Secretary reads the amendment. I want the proposition read as amended. THE SECRETARY read: SEC. 14. Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner. No right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first spective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law. MR. HAGER. It reads as I suppose it was intended to be. That is the first proposition as reported by the Committee on Judiciary stands as it was reported by them: "Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner." In that it is provided that private property shall not in any case be taken without compensation being made to or paid into Court for the owner. That stands as it is. Then comes the succeeding amendment about the right of way. Now, there may be a little conflict between the two propositions. The one relating to the right of way seems to adopt a rather different rule in order to ascertain the damages from what the first proposition does in regard to private property. That is, that one must be paid to the owner, or into Court for the owner, and that the other seems to squint at the idea that it may be in some way secured. It would open the door for a bond, or something of that kind. I think it should read right; that compensation being paid to the owner, or being placed in Court for him, he could be able to obtain it; and so that those who wish to make improvements shall pay it after the jury has made the award of the proper compensation. It ought to be secured beyond a peradventure that he should have a right to get the money out whenever they are put in possession. The author of this amendment, in his zeal to wrestle with a question MR. EDGERTON. Mr. Chairman: I have but one word to say. that has exercised the finest jurists in this country, who have sought to MR. DUDLEY, of Solano. Mr. Chairman: That amendment that I offered is couched in the identical language contained in the Constitution of Alabama. I did not trust my own ability to express ideas in language to suit the gentlemen here. MR. BARNES. Mr. Chairman: I did not mean to reflect on his lan-place this right of eminent domain on a footing that would be just to the guage or upon the law of it as it stands, only to put it together properly. I was not criticising any particular thing. MR. DUDLEY, of Solano. Mr. Chairman: I do not know what objection there is to it. The first part of the section stands exactly as reported by the Committee on Judiciary. The latter part of the section reads: "The right of way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money, or secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation; which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law." Now I have no pride at all with regard to the manner in which the ideas shall be expressed. I only ask that this Convention shall stand by the decision it has made. I have no objection to its being couched in other language. But I believe, that considering the fact that it is expressed in English, that one part is written by the Committee on Judiciary, and that the balance is expressed in the language that has been adopted in the Constitution of the State of Alabama, you might as well stand by it. people and to those who want to condemn, has run off to a foreign Constitution and abstracted a provision which restores the whole question to the place where it was before this last legislation was had. The gentleman from San Bernardino, Mr. Waters, is entirely right when he says that it robs the owners of private property of the benefit of every beneficent provision as contained in the laws as they stand. Any railroad corporation, under this amendment, can walk into any man's farm and file a bond and take his property and go ahead with it. A deposit of money or security MR. DUDLEY, of Solano. Secured by a deposit of money. MR. ESTEE. Mr. Chairman: I certainly think that this thing is a little mixed, and I think that in order to clearly express the views of this Convention, as indicated by the adoption of the amendment offered by the gentleman from Solano, that it would be wise to re-refer it to the committee to formulate it so that it will express the idea desired. Certainly, I hope it will not be adopted in its present shape. In that respect I agree with the gentleman from San Bernardino, Mr. Waters, and to some extent with the gentleman from Sacramento. I move that the Committee on Judiciary, with instructions to formulate it so as to contain the ideas expressed in the amendment. THE CHAIRMAN. The question is on the adoption of the amend-committee rise and recommend that this section be re-referred to the ment offered by the gentleman from San Bernardino, Mr. Waters. MR. DUDLEY. Mr. Chairman: I would like to ask whether, if this amendment is adopted, my amendment will stand as a part of the section. THE CHAIRMAN. No, sir; it will not. If this is adopted it will strike out the amended section. MR. ESTEE. I rise to a point of order: that there can be no amendment made to it that strikes that amendment out. If I understand that the amendment proposed by the gentleman from San Bernardino will entirely wipe out the amendment that was presented by the gentleman from Solano, I hold that it is out of order. MR. WATERS. If that is the case, in view of the fact that I do not think the Convention desires to put in a clause that this is a mere security to be placed in Court, and as that seems to be the evident construction, I move that the vote by which that amendment was adopted be reconsidered. MR. HERRINGTON. I second the motion. MR. ROLFE. Mr. Chairman: I think the same object can be accomplished in a different way, if the gentleman will change his amendment by simply moving to insert the two words "ascertained and" between the words "or" and "paid." MR. WATERS. I would state to the gentleman that only having heard it read, and not having it before me, I cannot put in the amendment MR. EDGERTON. Mr. Chairman: I have one word to say in regard to the reference. I wish to advise the Convention of this fact, that this subject was most maturely considered in the committee. I do not see any use in sending it back to the committee, because it would undoubtedly come back from them with the same recommendation that they have made. MR. ESTEE. Let it come; but we do not want that section as it now is to go into the Constitution. THE CHAIRMAN. The question is not debatable. THE CHAIRMAN. The gentleman from San Francisco, Mr. Estee, moves that the committee rise and report this section to the Convention, and request that it be referred to the Committee on Judiciary. The motion was lost. THE CHAIRMAN. The Chair will state the precise condition of the question: Section fourteen, as reported by the Committee on Judiciary and Judicial Department, is reported as an amendment. It has not been adopted by the committee. It stands as an amendment offered. The gentleman from Solano moved an amendment to that amendment, and MR. HAGER. Mr. Chairman: I would like to hear the proposition it was adopted. The gentleman from San Bernardino, Mr. Waters, read in a way that we can hear it. I am unable to tell what it is. I moves to strike out and insert a substitute which he has offered, and thought that the amendment as reported by the Committee on Judiciary | which is as follows: "Private property shall not be taken for public use there. without just compensation having been first made to or ascertained and paid into Court for the owner." Andrews, Ayers, Barbour, Barry, Barton, Beerstecher, Belcher, Bell, Blackmer, Brown, Burt, THE CHAIRMAN. The question now recurs on the adoption of the Caples, amendment offered by the Committee on Judiciary, as amended. Casserly, MR. LAINE. I move to reconsider the vote by which the last amend- Charles, ment was adopted. It seems to me that the word "secured" has crept Condon, in there. It will drive us back to the place we have been laboring out Cowden, of for the last ten years. Crouch, MR. HOWARD. Mr. Chairman: He is entirely mistaken. The lanDavis, guage employed in the amendment of the gentleman from Solano is: Dean, Until full compensation therefor be first made in money, or secured by Dowling, a deposit of money." It is secured by the money paid into Court. All that any of the provisions which have been adopted or proposed will effect is simply that. The money is paid into Court, and the money remains in Court for security. There is no ambiguity about it. There MR. MCCALLUM. I understand that the question is on the motion to reconsider. MR. WATERS. I withdraw that motion to reconsider. MR. BARBOUR. I would like to know how on a question of order that amendment was withdrawn? THE CHAIRMAN. The amendment is not withdrawn. The question is on the adoption of the amendment offered by the gentleman from San Bernardino, Mr. Waters, to strike out the whole of this section as amended, and insert this substitute, which I have just read. The amendment was lost. is no trouble about it. MR. WHITE. I think that word "secured" is most objectionable, and I trust the Convention will reconsider it. MR. DUDLEY, of Solano. I ask leave to amend it by striking out the words, "secured by a deposit of money," and inserting the words, "or deposited in Court." Then it will conform to the section as reported by the Committee on Judiciary; that is, in that respect it will be just like their report. THE SECRETARY read: "Until full compensation there for be first made in money, or deposited in Court for the owner." THE CHAIRMAN. It will require unanimous consent of the committee. MR. WATERS. I move to amend that so that it will read: "Until full compensation therefor be first made in money, or ascertained and paid into Court for the owner." MR. DUDLEY, of Solano. I am willing to accept that amendment if the committee is willing. THE CHAIRMAN. It cannot be done except by general consent. Doyle, Grace, Overton, Porter, Thompson, Tinnin, Tully, Turner, Tuttle, Van Dyke, Van Voorhies, Walker, of Marin, Walker, of Tuolumne, Waters, Webster, Weller, Wellin, West, Wickes, White, Wyatt, MR. SHAFTER. Mr. Chairman: I call attention to the fact that this provision of the Alabama Constitution has been repealed for several years. THE CHAIRMAN. The question recurs on the adoption of the SEC. 14. Private property shall not be taken for public use without just compensation having been first made to or paid into Court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into Court for the owner, irrespective of any benefit from any improvement proposed by such corporation; which compensation shall be ascertained by a jury in a Court of record, as shall be prescribed by law. The amendment was adopted. MR. MCCALLUM. I move that the committee rise and report this article to the Convention as amended. Carried. IN CONVENTION. THE PRESIDENT. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the Article on Preamble and Declaration of Rights, have adopted sundry amendments thereto, and ask the Convention at what time it will receive and act upon the report of the Committee of the Whole. MR. VAN DYKE. I move that four hundred and eighty copies of the amendments adopted in Committee of the Whole, together with the plan as reported by the Committee on Preamble and Bill of Rights, be printed, and that the amendments be printed in brackets so that they can be distinguished. MR. EDGERTON. I hope the gentleman will withhold that motion for the present. MR. VAN DYKE. I wish to state that the copies are all exhausted. We want some printed with the amendments adopted in Committee of the Whole. The motion prevailed. ADJOURNMENT. Dudley, of San Joaquin, Miller, LEAVE OF ABSENCE. Mr. President. Mills, O'Donnell, Rhodes, Smith, of Santa Clara, Townsend, Wilson, of Tehama, SECTION. The Legislature shall, at its first session after the adop tion of this Constitution, pass all necessary laws to submit to a direct vote of the qualified voters of this State, the proposition, that the State shall take possession by condemnation and purchase, at a fair and just valuation, of all railroads, their franchises, rights, and privileges, which may be in operation in this State, paying therefor in bonds of the State, bearing six per cent. interest, and payable in full in thirty (30) years or sooner if the State desire. Said railroads so purchased to be thereafter MR. GRACE. I move that the Convention adjourn. FORTY-THIRD DAY. SACRAMENTO, Saturday, November 9th, 1878. The Convention met in regular session at ten o'clock A. M., President Hoge in the chair. The roll was called, and members found in attendance as follows: duly appointed Superintendents and officers. UNITED STATES CURRENCY. MR. BARTON introduced the following proposition, relating to United States currency: Resolved, That a clause be inserted in the Constitution declaring that all moneys issued by the Government of the United States of America shall be a legal tender for all debts, public and private, and that no law shall ever be enacted by the Legislature of this State to discriminate against the currency of the National Government. Referred to the Committee on Legislative Department. gen SECTION 1. A Superintendent of Public Instruction shall, at the eral election for Judicial, State, and county officers, to be held in the year eighteen hundred and seventy-nine, and every four years thereafter, at such general elections, be elected by the qualified voters of the State, and shall enter upon the duties of his office on the second Monday of January ensuing his election. The following shall be prefixed to section two: "The diffusion of knowledge, as well asof virtue, among the people, being essential to the preservation of their rights and liberties, it shall be the duty of the Legislature to promote public schools, and to adopt all means which they may deem necessary and proper to secure to the people the advantages and opportunities of education." Referred to the Committee on Education. NOTICE TO AMEND RULE FIFTY-SIX. MR. TINNIN. Mr. President: I give notice of a motion to amend tion shall not be moved.' REPORT OF COMMITTEE ON PRINTING. SEC. 13. The Governor shall have the power to grant reprieves, and the Governor and Chief Justice of the Supreme Court shall have power to grant pardons and commutations of sentence, after conviction, for all and with such restrictions and limitations as they may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, the Gov MR. SHOEMAKER. Mr. President: I ask leave to make a reporternor shall have power to suspend the execution of the sentence until the from the Committee on Reporting and Printing, out of order. THE SECRETARY read: THE PRESIDENT. The report will lie on the table. The Convention has now gone through the order of business, what is the further pleasure of the Convention? MR. VAN DYKE. Mr. President: I move that the consideration of the article on Preamble and Bill of Rights in Convention be set for Monday next, at two o'clock. MR. LARKIN. I desire to hear some reasons. MR. VAN DYKE. There is nothing set for Monday, and they cannot be printed in time for the morning session. THE PRESIDENT. The question is on the motion of the gentleman from Alameda, Mr. Van Dyke. Lost. MR. VAN DYKE. I move, then, to set it for ten o'clock on Monday, immediately after the reading of the Journal. MR. LARKIN. I ask if it is not printed now. case shall be reported to the Legislature at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The Governor shall communicate to the Legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, the date of the pardon and reprieve, and the reasons for granting the same. Neither the Governor and Chief Justice, nor the Legislature, shall have power to grant pardons and commutations of sentence in any case where the convict has been previously thrice convicted of felony. THE CHAIRMAN. The amendment is that of the gentleman from Alameda, Mr. Campbell, to strike out "Chief Justice of the Supreme Court," and insert in lieu thereof, "Attorney-General." MR. BLACKMER. Mr. Chairman: At the time this article was under discussion I had offered an amendment to the amendment. THE CHAIRMAN. That will come in after this amendment. MR. MCCALLUM. Mr. Chairman: Is another amendment in order? THE CHAIRMAN. An amendment to an amendment is in order. MR. MCCALLUM. I move to amend so as to make the Governor, the Chief Justice, and the Attorney-General, the Pardoning Board. I will write it out. That is one of the improvements in other Constitutions that I read here the other day. MR. MCFARLAND. Mr. Chairman: My recollection is that I offered an amendment, so as to strike out the word "Chief Justice," so as to leave it exactly as it was in the old Constitution. THE CHAIRMAN. The amendment pending is that offered by the gentleman from Alameda, Judge Campbell. MR. MCFARLAND. I certainly offered an amendment so as to leave it to the Governor. THE CHAIRMAN. The gentleman simply offered a verbal amend MR. VAN DYKE. No, sir, it has been ordered printed, but has not ment. The Chair directed him to send it up in writing, and before the gone to the printer yet. written amendment was sent up the Convention adjourned. MR. MCCALLUM. I send up my amendment now in writing. THE SECRETARY read: MR. FILCHER. Mr. President: It seems to me to be a bad idea. Generally, the Convention is very thin on Monday morning. Last Monday morning there was only just a quorum here. There will be a "Add after the word Chief Justice,' in line two, and before the word small number present on next Monday morning. I think this report of'shall,' in same line, the words and the Attorney-General."' the committee should be considered when the Convention is full, or MR. MCCALLUM. Mr. President: The section will then read as nearly so. Monday morning is a very bad time to set it. follows: MR. VAN DYKE. The greater portion of it will be acted upon with- SEC. 13. The Governor shall have the power to grant reprieves, out any discussion. If any of the sections produce discussion and pro-and the Governor, Chief Justice of the Supreme Court, and the Attorneyvoke amendments, then action upon them can be postponed. I would | General, shall have power to grant pardons and commutations of senlike to have it set down for Monday. tence, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as they may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, the Governor shall have power to suspend the execution of the sentence until the case shall be reported to the Legislature at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The Governor shall communicate to the Legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, the date of the pardon and reprieve, and the reasons for MR. HAGER. Mr. President: I voted against the motion, for the reason that I thought we might consider it to-day. If it has gone to the printer I do not think we can act upon it to-day. We have gone through it once in the Committee of the Whole. If it be not printed, I do not think we can act upon it to-day, and therefore I move to reconsider the motion for setting it for Monday, at two o'clock. The printer should have had it here this morning, as the order to print was made yesterday. I understand it is against the rule to reconsider, and I move that it be postponed until Monday, at half-past two o'clock. MR. MCCALLUM. I voted against the motion to make it a special order, because I didn't see where we would accomplish anything by doing so. If the report should be printed and upon the tables on Mon-granting the same. Neither the Governor, Chief Justice, and Attorneyday morning, or if it should come in to-day, we can take it up when-General, nor the Legislature, shall have power to grant pardons or comever it comes. We have a number of special orders, and there is no mutations of sentence in any case where the convict has been previously necessity in making this the special order. Take it up when it comes thrice convicted of felony. in is the best way. MR. VAN DYKE. It was on the file this morning, and my purpose was to get rid of it. My colleague moved to strike out "Chief Justice" and insert "Attorney-General." My proposition is to add the Attorney-General to the Board. In looking over the Constitutions of the different States, I have found no place where there was anything in the nature of a Commission or Board of Pardons where it did not consist of more than two persons. general feature, that the Board shall consist of the Governor, Chief Justice, and Attorney-General, and that any two of these, of which the Governor must always be one, shall have power to grant pardons. MR. MCCALLUM. It will come up in its regular order. THE PRESIDENT. The question is on the motion of the gentleman from San Francisco, Judge Hager, to make it the special order for half-I think the section requires some further amendment, but that is the past two o'clock on Monday. MR. FREEMAN. Mr. President: I find that nearly a week ago we had printed all the report of the Committee of the Whole except these sections which were referred to the Judiciary Committee. I see no reason why we cannot take up and consider those sections which were printed a week ago. The motion was lost. MR. NOEL. Mr. President: I now move that it be made the special order for Monday morning, at ten o'clock. It seems to me that the THE CHAIRMAN. The Chair is of the opinion that the amendment is not now in order. It will be in order if this amendment of the gentleman from Alameda, Judge Campbell, is voted down. The question is now on that amendment, to strike out "Chief Justice" and insert "Attorney General.” Lost. THE CHAIRMAN. The question is now on the amendment of the gentleman from Alameda, Mr. McCallum. MR. MCFARLAND. I ask the gentleman to allow me to offer my amendment. MR. MCCALLUM. I give way temporarily. for pardons, but also as to the manner of granting pardons. If you do MR. MCFARLAND. The committee will notice that my amendment strike out this whole clause, and insert other words in the place. I simply leaves the matter in the hands of the Governor. THE SECRETARY read the amendment: "Amend by striking out the words 'Chief Justice of the Supreme Court,' in the second line, and the word 'they' in the fifth line, and insert the word 'he' and strike out the words and Chief Justice' in the fifteenth line." MR. MCFARLAND. It will then read: SEC. 13. The Governor shall have the power to grant reprieves, and the Governor shall have power to grant pardons and commutations of sentence, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, the Governor shall have power to suspend the execution of the sentence until the case shall be reported to the Legislature, at its next meeting, when the Legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The Governor shall communicate to the Legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence, and its date, the date of the pardon and reprieve, and the reasons for granting the same. Neither the Governor nor the Legislature shall have power to grant pardons, or commutations of sentence, in any case where the convict has been previously thrice convicted of felony. leave it where it is. I argued this amendment the other day. I still think it is safer to MR. TERRY. Mr. Chairman: It occurs to me that the Chief Justice is the very last person to be on that commission. The complaint is made that the Court is not able to keep up, and it requires the attention of one of the members of the Court in listening to cases of pardon. It seems to me that he should be the very last person to be put on that commission. THE CHAIRMAN. The question is on the amendment. MR. MCFARLAND. If that is adopted it leaves it as it is in the old MR. TULLY. What is the question before the house. THE CHAIRMAN. There is nothing before the committee. MR. HAGER. I was going to offer an amendment, and I was explaining the amendment which I intended to offer. I will offer it first. THE CHAIRMAN. The gentleman must offer his amendment and get it seconded before he can debate it. Send up your amendment. THE SECRETARY read the amendment: "In line seven, before the word 'pardon,' insert the words, and granting.' SPEECH OF MR. HAGER. would like to ask what position my amendment is now in, whether it should not now come up under this head. THE CHAIRMAN. The amendment offered by the gentleman from San Francisco, Judge Hager, is the first amendment. MR. BLACKMER. This amendment does not touch the question as brought up by Judge Campbell, but it is in reference to the section proposed to be amended. My amendment, if it should prevail in the committee, would strike out the clause proposed to be amended by the gentleman from San Francisco, and insert other words. THE CHAIRMAN. The amendment offered by the gentleman from San Francisco, Judge Hager, comes up first, and then your amendment to strike out the whole of it. The question is on that amendment. Is it MR. SHAFTER. Mr. Chairman: I did not just exactly understand the explanation made by the gentleman from San Francisco, Judge Hager. I think the language is equivocal in regard to terms. intended to confine the Act of the Legislature to simply regulating the manner in which the pardon shall be granted-the language in which it shall be couched, and the particular circumstance under which it shall be made, or is it intended to cover the grounds of pardon. It seems to me that the language admits of both constructions. I shall object to the Legislature passing laws to fix and define the grounds upon which a pardon shall be granted. The whole theory of our government is to leave that entirely with the Governor. Perhaps the Legislature might say there shall be no pardons at all. I do not propose to trust that power with the Legislature. It seems to me the amendment is not plain. If it does not touch the power and right to grant pardons, then it cannot affect that part of it. But as to letting the Legislature specify what that power shall be, and under what circumstances it shall be exercised, seems to me is going entirely too far. We MR. HAGER. Mr. Chairman: I do not think there is anything in the objections urged by my friend from Marin, Judge Shafter, except the general distrust of the legislative power. He might as well say he distrusts the Governor, or that he distrusts the judicial power. must confide in the legislative power of the State. I can see no harm in lodging with them the power to say, in case the Governor did abuse his power, that he should be restricted in the exercise of that power. I do not think there is any danger of the Legislature passing a law that will do an injustice and take away the power of pardoning any man. On the contrary, the inclination is always on the side of mercy. If mistakes are made they will always be found upon the side of mercy. Where appeals have been made to the Legislature, and errors have been made, they have always been made on that side. There is no difficulty on that ground. In some States the Legislature has the entire pardoning power, and in that view of the case I do not see why we need hesitate about saying that both branches of the Legislature may pass a law regulating the mode of granting pardons, especially when the Governor has the veto power on that as in all other cases. I fail to see the objec tion. ARGUMENT OF MR. SHAFTER. MR. SHAFTER. Mr. Chairman: He proposes to have the Legislature exercise the pardoning power. That is the whole proposition. To take it away from the Governor virtually by giving the Legislature When it comes to a difference between the Legislapower to control it. ture and the Governor in regard to the grounds upon which a pardon shall be granted, the Legislature will control. The whole proposition is, that the Legislature is to have the pardoning power, and to that I object. If this Convention thinks it worth while to change the whole system, and put this pardoning power into the hands of this Boardthis town meeting-I have nothing to say against it. But let us MR. HAGER. Mr. Chairman: That amendment I will read and understand this matter. I protest against it. My friend from Alaexplain it. It is a matter of discretion as to where we shall lodge the par- meda, General McCallum, gives an epitome of the Constitutions of doning power. In some cases it is left to the Governor simply, and in the various States on this subject. I have looked over the Constituother States the Governor and Senate, and in other States, which I think tions and I do not get exactly the same result that he does. In Alais the better way, they form a sort of Court of Pardons. Here, with the bama, Arkansas, Colorado, California, Indiana, Illinois, Iowa, Kansas, report of the committee, I do not suppose we can undertake to establish Missouri, Minnesota, Nebraska, North Carolina, Ohio, Oregon, Texas, a Court. I am therefore inclined to adhere to the present provisions, Virginia, West Virginia, and Wisconsin, the pardoning power is conthat it shall be left to the Governor, subject to such legislation as the fined to the Governor. Now, in Louisiana it is by and with the Legislature may pass, not only to the mode of applying for pardons, but approval of the Senate. In Maine, Massachusetts, and New Hampthe mode of granting pardons. The Governor shall have power, in case shire, it is with the Senate. In Nevada it is with the Legislature. it rest with him alone, to grant pardons and commutations of sentence, They simply allow the Governor to reprieve within sixty days, and the etc., upon such conditions and such restrictions and limitations as may Legislature operates directly. In Rhode Island the Governor and Senbe thought proper, subject to such regulations as may be provided by ate pardon. In Georgia the Governor pardons, except in cases of trealaw, in the matter of applying for and granting pardons. As it now son and murder. There are twenty States where the Governor exercises reads, the Legislature can only regulate the matter of applying for pardons. unlimited authority. But the committee here thought that a CommisThis is the purpose of the amendment, to regulate the manner of applying sion would be preferable, and we compromised and put the Governor for pardons, and the manner in which they shall be granted. They may and Chief Justice together. I do not think that the majority of the say, for instance, that it shall be upon consultation with the Judge that Convention are satisfied with it. They wanted a more numerous Comtried the case. They may put in any provision of that kind, and the mission, and the gentleman from Alameda proposed adding the AttorGovernor must confine himself to the provision of the statute. I am of ney-General, the Commission to be appointed by the Governor, by and the opinion that the first person for him to advise with would be the with the consent of the Senate, to consist of three members. As far as Judge who tried the case. Not that the advice so obtained should be my opinion goes, the three should concur, and not a majority act. There binding, but I think the pardoning power should always consult about exists to-day too much leniency, too much regard for the feelings of the the facts. I have known cases of pardons being obtained through criminals, and too little for the rights of the community. That is a misrepresentations; cases where the Governor has been imposed upon. thing we should all try to avoid. It is a fair difference of opinion as to Most everybody will sign a petition as an act of courtesy. But some- whether this power should be left with the Governor and two other times misrepresentations have been made, letters have been presented to persons, or with the Governor alone. I have prepared an amendment the Governor which have turned out afterwards were not true in fact. in case a Commission is decided upon, to make their decision unaniThe Legislature, therefore, might impose certain rules and regulations mous. As to the amendment giving the Legislature any control, I am upon the acts of the Governor, not only as to the matter of applying | most decidedly opposed to it, and I trust it will not prevail. |