who are backed by large means, or by rich and powerful associations, use the Grand Jury to escape the punishment of their crimes. They have all the time used it. Where the District Attorney, for his own purposes, or for their purposes, sees fit to do so he can make an engine of oppression out of that very institution. I myself was concerned, and these delegates elected from San Francisco, in a case that distinctly illustrates that proposition. Denis Kearney, Dr. O'Donnell, Wellock, and various parties, as is well known, were arrested in San Francisco upon numerous charges. Among other charges preferred against them was one that they had committed a riot, by holding a meeting on Nob Hill, within the sacred precincts of the magnates of the railroad corporation. They were taken before a committing magistrate. It was fully examined before the committing magistrate. I myself appeared as one of the associate counsel for the defense, and after a full and complete examination of the foundationless and groundless charge against these men he discharged them. Now he did not send it before the Grand Jury. That ought to have been the end of that charge. What happened? Hostility existed between that magistrate and the District Attorney. After the sitting of the next Grand Jury the District Attorney presents that very identical case, that very identical charge, in the shape of an indictment, before the very identical Court which had discharged them. They were compelled to undergo the expense of a trial all over again about the very identical matter, and which resulted in the fiasco, the history of which is well known.

see.

66

It is called a Grand Jury. What there is grand about it I am unable to It is one of those relics of antiquity, of by-gone civilization, and I suppose that the word grand" is brought in as a part of the splendor which used to surround that institution. And it is anything but grand, Mr. Chairman, especially in its character of a smelling committee. It goes around, after due and sufficient notice has been given that it will appear at a certain time before the public institutions, and they are very diligent in preparing for the reception. They wash out all the filth that is not too thick to be gotten out of the way, and by the use of chlorate of lime make it as clean as possible, and the Grand Jury goes smelling around there and perhaps gets something to drink. They do not go and talk to the prisoners; they do not go and talk to the paupers, and find out whether they are suffering. Not at all, sir. They go back and flatter and tickle one another. They put in a report lauding the fidelity and zeal of these officers. When they get through, the District Attorney rises in Court and praises the Grand Jury for the arduous services they have rendered, and the Grand Jury, in return, tickles the District Attorney with resolutions about his promptitude, and give him a lift for the next election. They have accomplished nothing; achieved nothing; done nothing that in any manner can be one particle of use in the administration of criminal justice. Therefore, I am in favor of its total abolition. The gentleman from Alameda, Mr. Campbell, has given the subject careful consideration, and I consider the reasons which he gave as being conclusive.

SPEECH OF MR. ESTEE.

say

right here that I disagree entirely with the gentleman from Alameda
and the gentleman from San Francisco, relative to the corruption of these
Grand Juries. The gentleman from Alameda says that the Grand
Jury system in San Francisco is a shield for rich scoundrels. I deny it.
Standing here in this presence, responsible for every word I say,
that the Grand Juries of San Francisco, for the last twelve or fifteen
years, have generally been the purest men in the community. The
petit jurors are the ones who let the most scoundrels free. The Grand
Juries of San Francisco have always been the best class of our people,
representing every interest, representing every impulse of the people,
representing every emotion, if I may so speak, of the people. Coming
together with no motive to oppress and every reason to see that punish-
ment is awarded, if any crime has been committed. Sir, with some
very rare exceptions, no case of a Grand Jury can be pointed out where
they have let rich scoundrels out.

Look at all these rich scoundrels that the gentleman might refer to. Look at the Fair case. She was indicted by a Grand Jury. Look at all these cases that have become historical in San Francisco. Indictments have been found against the proper parties, and under the peculiar operations and machinations of counsel, by the circumstances of witnesses being got out of the way, and all this various modus operandi that is so familiar to gentlemen who defend criminals, they have gone clear. Criminals have been cleared by petit juries, not by Grand Juries. I am not here in this respect, however, to argue that Grand Juries have never done wrong. I am not here to say that there are not instances in San Francisco where they have done wrong, but I want to see the man, the public officer, or the institution that has never done any wrong. But if we are going to tear down the pillars of this institution that has come to us by so many years of experience, recommended by the wise men who lived before us, let us have some tangible reason for it. Let us find some abiding precedent for it. Let us find a reason that the people can see and understand and that we can point to and say, "there is a wrong that has been committed on the people and here is the remedy we are going to give the people in exchange." I disagree also with the gentleman from San Francisco, Mr. Barbour, about the recent action of Constitutional Conventions. I find, sir, so far as I have been able to observe, not in a single instance have they changed the Grand Jury system. The last Constitutional Convention was in Missouri, where they say:

"That no person shall for a felony be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger," etc.

Again, in Pennsylvania they lay down the same doctrine in their Constitution of eighteen hundred and seventy-three. The Illinois Constitution I have not yet examined on this point, but I understand that it is the same.

MR. BARBOUR. I would like to call the gentleman's attention to the Constitution of Georgia in eighteen hundred and seventy-seven, where it is left out altogether; and to the Constitution of Colorado of eighteen hundred and seventy-six, where they provide that the general assembly may abolish it.

MR. ESTEE. Mr. Chairman and gentlemen of the committee: So far MR. ESTEE. I do not have them before me now. If the gentleman as I am concerned, individually, I recognize that I have some reverence has found those cases he is entitled to that precedent. But let me say for the institutions of the past. I recognize that there have people lived right here, that in the rural districts-that is, in a State like Wisconsin in the past who were as wise as we are. I believe, sir, that the institu- or Minnesota, or even Georgia, where there are no large cities-the tions that have existed for hundreds of years and have met the necessities reasons for Grand Juries are not so strong. I confess that in some of of the times and wants of the people are precedents by which we may the counties of this State, where every man knows every other man in be guided. I believe that this Convention cannot, if it tries, reform all the county, where there are no large places, there is no necessity for a the evils that are recognized throughout the world. I do not believe, Grand Jury very frequently. I understand that perfectly. What I sir, that the two last gentlemen-or rather the gentleman from Alameda, claim is, that it would be bad policy, that it would be contrary to the Mr. Campbell, and the gentleman from San Francisco, Mr. Barbour-best experience of the wise men that have lived for one hundred years, have stated in their arguments any good reason for changing this great, to strike at this great institution, and say that from this on the Grand and, what I believe to be, glorious system-the Grand Jury system. Jury system shall be abolished. One or two reasons have been given, it is true. One is a purely financial one, namely, that it is expensive. The other is that the Grand Juries are corrupt. These are the only two reasons that have been submitted to this Convention for its consideration. As to its expense I have nothing to say. Liberty is expensive. Anything by which the rights of life, liberty, and property is secured is attended with expense and inconvenience to the people, and if you propose to measure these sacred rights by the amount of money it costs, then I will leave the further consideration of that question to the gentleman who first opened this debate. For one, I think that there are certain interests that are worth protection, even if they are expensive. But I deny that they would be more expensive.

We will suppose you have an honest District Attorney in a city like San Francisco. A charge is brought before him, and what is his position? It hardly matters how frivolous the charge. There is some responsible party says that a man is guilty of some offense, and he is almost placed in a position where he is bound to bring the man before a jury and have him tried.

MR. CAMPBELL. The proposition is merely this: that the District Attorney may file an information after the party has been examined and committed by a committing magistrate,

MR. ESTEE. I will come to that. This is the essence of the thing, because the committing magistrate merely says that a public offense has probably been committed, but the District Attorney passes upon it. He decides whether that man shall be tried or not. Take San Francisco, with its population of three hundred thousand-probably in ten years five hundred thousand-and let one man-I care not how pure he is, I care not how brilliant he may be in his profession, I care not how exalted his position-have the power to say that he will try you for felony, or me for felony, or this man for misdemeanor, or that man for misdemeanor, bring him before a jury of his peers and try him-see what a power he has got. See what a position it would place the District Attorney in. I claim that this is not the remedy for the evil, if there be one. I confess

But they tell us, you may have a little of both. A little of both means not much of either. You may have a Grand Jury once a year. Better abolish it at once, for that amounts to nothing. Either take the whole thing, if it is right, Mr. Chairman, or abolish the Grand Jury system altogether, and adopt this system offered by the gentleman from Alameda. If it is wrong, let us abolish it. Let us not divide the responsibility between the Grand Jury and the District Attorney.

I believe that the Grand Jury system has worked well in the past, and for one, where I find in the old Constitution a provision which seems to have worked favorably for the whole people I do not propose calmly to consent to its abolition. For one, I recognize that men have lived before us whose experience may be worthy of our imitation, and whose advice and counsels we may safely follow. For one, I recognize that that old Constitution, or much of it, is among the best written organic laws adopted by any State in the Union, and I hope, sir, unless for the very gravest reasons, that this Convention will not feel it to be its duty to destroy whatever there is that is valuable and good in the old Constitution merely to make a change. Unless there is some marked evil, some great wrong to be perpetrated on the people, and some remedy enforced to remove it, I say that we owe it to ourselves, we owe it to the dignity and honor of the past, we owe it to the law, which it is the duty of every citizen to obey, that we should make no change merely for the sake of change. I hope if you are going to abolish the Grand Jury system you will take it as a whole. Instead of lopping off a part of it, let us abolish the whole of it. If it is wrong to keep it, let us take the whole of it, and let the people try the new system, pure and simple.

MR. HUESTIS. Mr. Chairman: I move that the committee rise, report progress, and ask leave to sit again. Carried.

IN CONVENTION.

THE PRESIDENT. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the report

of the Committee on Preamble and Bill of Rights, report progress, and ask leave to sit again.

The hour having arrived, the Convention took a recess until two o'clock P. M.

AFTERNOON SESSION.

have not been found. Yea, the men against whom they should have been found, who should have been pounding stones at San Quentin for years and years, are to-day free in the streets of San Francisco.

The Convention reassembled at two o'clock P. M., President Hoge in rington, has advanced an argument-citing cases from the time of Henry

the chair.

Quorum present.

PETITION.

MR. ESTEE. Mr. President: I ask leave to present a petition from a large number of citizens of San Francisco, asking that a certain day be set apart by this Convention as a day of rest, and ask to have it referred to the Committee on Miscellaneous Provisions. THE PRESIDENT. If there is no objection it will be so referred, without reading.

THE GRAND JURY SYSTEM CONTINUED.

MR. VAN DYKE. Mr. President: I move that the Convention do now resolve itself into Committee of the Whole, for the purpose of resuming the consideration of the report of the Committee on Preamble and Bill of Rights.

The motion prevailed.

IN COMMITTEE OF THE WHOLE.

I deny the fact that the Grand Jury is a protection to the poor man, to the laboring man. The Grand Jury to-day is useless, or only acts as a shield to the rich rascal. The gentleman from Santa Clara, Mr. HerIV of England, showing how Grand Jurors were brought before the Chancellor of England and fined because they had neglected their dutyfailing to indict. Is not this an argument against Grand Juries-a conclusive argument? As far back as the time of Henry IV of England, Grand Juries have been subject to bribery and outward influence. This does not show to me that they are the grand bulwarks of liberty. One objection, above all others, that I have to the Grand Jury system is this: the system removes individual responsibility-divides the responsibility among many. If the magistrate before whom a complaint is made is individually responsible to the public; if the Prosecuting Attorney, whose duty it is to prosecute, is individually responsible to the public, they will be more vigilant, more careful in the discharge of their duties, than when the responsibility is spread among so large a number as a Grand Jury.

THE CHAIRMAN. Section eight and amendments are now before The more individual responsibility the more security of life, liberty, and

the committee.

SPEECH OF MR. BEERSTECHER.

The trouble with this government to-day is the shifting of individual responsibility from men who, occupying official stations, ought to be directly responsible to the people. What we must do to cleanse and purify the public service is to render every man individually responsible. the rights of property. I revere the ancient, I believe in the antique, but in order to retain the ancient among the institutions of the living MR. BEERSTECHER. Mr. Chairman: I have three reasons for present, more should be urged in its behalf than age. Age is no argument. They must show that it is of practical living utility to-day. If speaking upon this question. First-I differ with the gentleman from San Bernardino, Mr. Waters, who says this was not an issue in the recent age were an argument we might go back to the right of trial by battle, campaign. It may not have been an issue in the gentleman's district. by ordeals. I have no doubt that the people once believed the right of trial by battle or ordeal as essential and necessary a guarantee of the but as aptly stated by the gentleman from San Francisco, Mr. Barbour, liberties of old England as the gentleman from San Bernardino believes it was a matter that was actively canvassed in San Francisco in the the Grand Jury system to be necessary to guarantee the liberties of the political meetings prior to the election of the nineteenth day of June citizen of California to-day, but the people have discarded those antilast, and the almost unanimous verdict was that the Grand Jury system, if not abolished, should at leas the modified. Second-The gentleman quted beliefs, because having no other recommendation than age. Institutions with no other recommendation than age had better fall and from Alameda, Mr. Campbell, has referred to myself as having lived in be buried in the closets of the past. We can look upon them with reva State where the Grand Jury has been abolished-namely, Michigan, and having personally seen the workings of the criminal code without erence, looking down the vista of years, but they must not stand as a the aid or assistance of the Grand Jury for over nine years, during the stumbling block in the pathway of the living present. greater part of the time being actively engaged in the practice of law. It has been urged that if the Grand Jury system be abolished it will Third-As a member of the Judiciary Committee who have made the inaugurate a one-man power. I deny the assertion, as was aptly said report recommending the abolition of the Grand Jury system. by my colleague from San Francisco, Mr. Barbour. His statement shows Mr. President, for these reasons, and because I consider the Grand but one case, but, were it necessary, citations might be multiplied until Jury system as useless in the present age and condition of government. thousands of cases might be shown. I am willing to let it stand upon Certain gentlemen in San Francisco were arrested for If a crime is committed and an arrest made, an examination results. the one case. The person accused is either held or discharged-gives bail or is sent to inciting riot, and brought before Judge Ferral for examination, who, jail-sent to jail not to await his trial-not to be placed before a jury after hearing the evidence, discharged them. Mr. Murphy, the proseof his countrymen, but to have his case passed upon by a secret tri-cuting attorney, actuated by personal motives, brought the matter before bunal without the privilege of being heard in his defense. He lies in the Grand Jury, and, by exercise of "one-man power," procured an jail one, two, or three months. His case is at last brought before the indictment. He brought these gentlemen to trial before Judge Ferral's Grand Jury, who, after a one-sided examination, determine whether he Court, where a petit jury acquitted them. The Grand Jury, in every is to remain in jail and eventually be tried, or to be discharged. In case of doubt, rely wholly upon what the prosecuting attorney tells this way men are confined in prisons for months without being tried by them as to finding or ignoring bills. a jury of their countrymen. It has been stated that the Grand Jury is the bulwark of the liberties of the people, that unless the Grand Jury exists it will be impossible to convict criminals. Mr. President, I deny the assertion. In conversation with one of the eminent jurists who occupies a seat on this floor, some weeks ago, the gentleman expressed himself upon the Grand Jury system by stating that a client of his committed a crime, for which he was about to be proceeded against by the Grand Jury.

I here call particular attention, Mr. President, to the fact that a person whose case is about to be examined by a Grand Jury has a right to challenge the Grand Jury as an array or as individuals, if he is financially able to secure men of sufficient shrewdness to work upon the Grand Jury. He can stave off indictments for an indefinite period. Section one hundred and eighty-three of the Penal Code provides for challenges to Grand Jurors upon the ground, among others, "That the Grand Juror has formed or expressed an unqualified opinion or belief that the defendant is guilty or not guilty of the offense charged," and "that a state of mind exists on the part of the juror in reference to the case of either party, that satisfies the Court that he cannot act impartially without prejudice to the substantial rights of the party challenging." The gentleman to whom I referred, when he ascertained that his client was about to be indicted, used the means necessary to render a sufficient number of Grand Jurors incompetent to find a bill. When the time came to examine into the case of his client, the gentleman went before the Grand Jury and challenged the several men composing that Grand Jury until he reduced the number of Grand Jurors below twelve, the number necessary to find a verdict. The same method was used for two years, and the client went free.

Mr. President, I take up the San Francisco papers of to-day, and I find therein a list of the Grand Jurors summoned to set upon the jury just called. How easy a matter it is for a man of wealth to so use his means as to form a bias of opinion in the minds of the men whose names have been published to-day. The gentlemen of whom I have spoken made use of means of that character. It can easily be done. It is not necessary to influence the whole Grand Jury, it is only necessary to prejudice, and by representations, so to form a bias in their minds, that when the attorney for the person about to be indicted appears before the Grand Jury and questions them concerning their opinions of the man about to be indicted, they say they have formed opinions. In that way in San Francisco, numberless indictments that should have been,

But gentlemen have said, this may all be so, but there yet remains a something, that if you wipe out the system there will be nothing to supply, and that is the power of visitation and examination into public departments. These visitations remind me of my schoolboy days. The Directors came visiting once in three months; the scholars all upon good behavior, drawn up in dress parade, for a week before drilled upon certain questions and their answers. The gentlemen came into the school room, the teacher handed them a printed document upon which were the questions which we were drilled to answer. Of course no honorable gentleman would go outside the printed questions. Everything went off smoothly, we were the best and wisest scholars in the blessed land of Pennsylvania. That is just the way with the Grand Jury visitations. All preparations are made to receive them. Everything is put upon a dress parade footing. It is just no visitation at all. But there are other methods of getting at this matter. There is no reason why the Board of Supervisors of every county should not resolve themselves into a Board of Visitations. That is the method in the State of Michigan. The Grand Jury system has never in my opinion been the bulwark of liberty. The petit jury has always stood between the encroachments of capital, the encroachment of the Crown, and the rights of the people. I challenge the gentleman who spoke so favorably for the retention of the Grand Jury system, to tell me why, if the Grand Jury has been such a bulwark of liberty, the petit jury was called into life. The Grand Juries were always willing to find indictments for the corrupt monarchs of England, but it was the petit jury that stood between the Crown and the people. In this State, having counties as large as many Eastern States, if a man enters a corral and steals a horse, being seen by a dozen men in the act, if caught the Sheriff must scour the country for hundreds of miles to secure a sufficient number of qualified persons to act upon a Grand Jury, to find an indictment allowing the law to proceed against the scoundrel. This does not seem to me justice or economy. The State should be allowed to try-to punish malefactors without the intervention of a Grand Jury. The people are loudly calling for redress.

Mr. President, I do not care for buncombe speeches about liberty, and how the people are going to rise up in anguish and denounce men who are trying to wipe out this vestige of antiquity. I do not believe it. The people of California are a people of progress, and demand that the Grand Jury system be wiped out. Taking into consideration the fact that an examination results in incarceration until the meeting of a

Grand Jury. Then, after finding of a bill, there is a further incarcera- stay for several days, all at their own expense, and finally, when the tion until the meeting of a petit jury, the expense of the unnecessary keep-case comes up for trial, they are again subjected to the same hardship. ing of prisoners, and of the Grand Jury-it costs the State of California In other words, Mr. Chairman, large numbers of the people are comhundreds of thousands of dollars yearly-uselessly thrown away on a pelled, at least four times a year, in the different counties of this State, system that has lost its usefulness. The system as practiced in the State to enter an appearance at the county seat, without subserving any useful of Michigan is simply this: If a party knows that a crime has been purpose which could not be accomplished under any other system which committed he proceeds to an examining magistrate. He states his case. If did not impose this onerous and unnecessary burden. And, sir, I subthe magistrate believes a sufficient case exists, he reduces that statement mit that to maintain that all this trouble and expense and loss of time to writing, and has the person making the statement subscribe it and are necessary in order to subserve the ends of justice, is simply tantaswear to it, and upon that statement he predicates an order for arrest. mount to saying that the American people have lost all their inventive The person believed to have committed the offense is sent for. The genius and power. To so maintain is to stultify ourselves, and, for one, examining magistrate, with the aid and assistance of the Prosecuting I repudiate the idea as utterly unworthy of the serious consideration of Attorney, inquires into, first-whether an offense has been committed; this honorable body. second-whether there is reasonable cause to believe that the party under arrest has committed the offense. If he finds both of these things, in his opinion, he orders the person to be sent to jail or admitted to bail. Then, on the first day of the succeeding term of the Court, the prosecuting attorney files an information against the prisoner, to which information the prisoner pleads. If, however, the prosecuting attorney, upon reading over the evidence, should determine that there was not sufficient evidence to warrant the detention, he states to the Judge that, in his opinion, he does not believe the prisoner can be convicted upon the evidence. The Judge then makes an examination of the evidence-sufficient, they do not indict. They are, in the very nature of things, but he does not examine the evidence unless the prosecuting attorney makes the statement that he believes the testimony to be insufficient. The Judge examines the evidence, and if he holds with the prosecuting attorney the prisoner is discharged. If, on the other hand, the Judge believes there is sufficient evidence to warrant the detention of the prisoner, then the prisoner is detained and is tried. If a person is arrested and the examining magistrate discharges him, he is subject to rearrest. A discharge is no bar to a rearrest. This system has been in vogue in the State of Michigan for almost thirty years, as was stated by the gentleman from Alameda, Mr. Campbell, and as I have observed personally for nine years. The system has worked well; it has worked exceedingly well; it has saved millions of dollars to the State of Michigan, and they do not desire to return to the Grand Jury system. They are very well satisfied. They can punish their criminals without aid or assistance from this cumbersome, useless machine.

I am in favor of the resolution as presented by the Judiciary Com mittee it allows a restoration of the system if found necessary by the Legislature. Seven States have virtually abolished the system and others are following in the wake and sweeping away the old cobwebs, allowing direct proceedings against criminals, making the prosecuting officers in each judicial district individually and directly responsible for the misuse or abuse of power, allowing no Grand Juries to intervene as a screen for the prosecuting attorney to creep behind and say, "It was not my fault-it was the fault of the Grand Jury." The voice of the people rings in my ears, calling upon us to modify or wipe out this useless system.

SPEECH OF MR. HUESTIS.

But, Mr. Chairman, in order to get a more distinct idea of this matter, let us for a moment briefly consider the functions and duties of Grand Juries; and, as I understand it, their main duty is to examine the record or witnesses, or both, and come to a conclusion as to whether persons accused of crime ought to be tried or not. This they do under the advice of the District Attorney. In many cases they are, in whole or in part, composed of persons ignorant of the law; and in a majority of cases, if the District Attorney tells them that the evidence is sufficient to convict they indict, and, on the contrary, if he tells them the evidence is not almost entirely under the control of the District Attorney, in all matters coming up in the Grand Jury room, and merely echo his opinions. The whole thing, then, practically viewed, merely amounts to a roundabout and very expensive method of getting the opinion of the District Attorney. And I submit that if this be necessary in order to insure the ends of justice, then, in the name of common sense, why not get the opinion of the District Attorney directly, and thus curtail the enormous expense attending the present system. This morning's Record-Union, in an editorial opposed to abolishing the Grand Jury system, after admitting that there is a strong current of opinion in favor of the abolishment, says: "But the first inquiry to be made, when it is proposed to abolish an institution, refers to the contemplated substitute."

Well, Mr. Chairman, in reply to this I have simply to say, that if it can be a question, whether any plan can be devised in lieu of the present system, which will not come in conflict with true governmental science, so far as the same is applicable to the subject under consideration? I hold that we can, with the utmost propriety and degree of safety, trust its solution to the legislative branch of the Government. I have no fears, sir, that the Legislature would sanction any system which would in the least disturb the rights or the liberties of the people. Nor can I for a moment doubt that the Legislature would, if intrusted with the power, call into existence in lieu of the present antiquated, burdensome, and expensive Grand Jury system, some less expensive system which would be more acceptable to the people, more conducive to the ends of justice and the peace and dignity of society, and more in accord with the spirit of the age.

Mr. Chairman, the question under consideration is one in which the MR. HUESTIS. Mr. Chairman: After all that has been said upon people feel a great interest, and, as far as an expression of their views the question now before the committee, I would be perfectly willing to and wishes have come to the surface, it is evident enough that a very let the matter come to a vote at once, were it not for the fact that I feel large majority of the taxpayers of California are of the opinion that the impelled from a sense of duty not to let the opportunity go by, now Grand Jury system has outlived its usefulness, and that it should no offered, to reflect public sentiment so far as I am able to judge, upon longer constitute a feature of the organic law of this State. A revision the question under consideration, and to raise my voice in favor of of the organic law, with the view of rendering the judiciary system less economy and reform in the administration of government. If I could cumbersome, more expeditious in administering justice, and at a far less have supported the report of the honorable Judiciary Committee before, cost than under the present system, is a reasonable demand of the peoI certainly cannot now, after hearing the able argument of the gentle-ple which we, as their representatives, cannot in justice to them or to man from Alameda, Judge Campbell; for to my mind, he has in a ourselves ignore. One of the principal obstructions in the way of these masterly manner refuted and demolished the recommendations of that desirable ends is the Grand Jury system. Then, sir, why not place ourreport. The Judiciary Committee have reported in section eight, a selves upon this question in full accord with public sentiment at least provision that offenses shall be prosecuted by indictment or informa- to the extent of placing the matter under legislative control? In other tion, and each county shall have a Grand Jury at least once a year. States where the change has been made the results have been highly But the argument of the gentleman demonstrates that the Grand Jury satisfactory. I grant that its origin can be traced far back into the dark system is the most useless, expensive, absurd, dangerous and pestilent ages of history, and that it was supposed to be, and possibly may have institution in our whole system of government. been at that time, and for centuries afterward, a protection of the people I agree with the gentleman to a great extent, and therefore I am in favor of the aboli-against kingly prerogative and power; and I also grant that its Star tion of the system-at least, to the extent of placing the matter, where Chamber proceedings were supposed to be hidden even from the peneI think it properly belongs, under legislative control. And, sir, incident-trating knowledge and power of royalty. ally, I would just here give it as my opinion that when gentlemen on this floor assume that this proposed change is not in accord with public sentiment, and that the great expense of the present system should cut no figure in the consideration of the question, they are simply wrong in their premises.

Mr. Chairman, I respectfully submit that this is simply a question of public policy, or expediency, and as such, it is eminently proper that it should only be considered from a moral and practical standpoint. And, sir, I am in favor of the abolishment of the Grand Jury system, at least to the extent of placing the matter under legislative control, because it is a source of enormous expense to the people of this State, without corresponding benefit. And while I shall not detain the committee with a detailed statement of the expense of this system, I feel authorized in saying that it annually costs the people of California considerably over one hundred thousand dollars. And, sir, in response to the question which next presents itself to my mind, to wit, "What benefits, if any, accompany this enormous outlay?" I do not hesitate to answer, none, absolutely none, which cannot otherwise be fully attained, and at an expense of not more than one fourth of that which the present system

entails.

Under the present system, in cases of the commission of crime, those of the people who are known to be cognizant of it are first compelled to appear before the committing magistrate as witnesses. They are again compelled to appear before the Grand Jury and in many cases having to travel a long distance to the county seat, where they will have to

But, Mr. Chairman, suppose they were, how ought that affect us in this, the nineteenth century, with no worse despot to fear than ourselves? But, Mr. Chairman, almost every agency made use of by our fully improved upon, but this one. forefathers has either been superseded by something better or wonderThat it is the antiquated, ponderous, and lumbering machinery of our ancestors I concede, but I also claim that to provide for its further continuance would be as unreasonable as it would be to provide for the resurrection and continuance of the whipsaw, the wooden plow, the sickle, or the hand printing press. That it is a greater power for evil than for good, I firmly believe. We all know the facilities it affords to a man's enemies to stab him in the dark, and the protection that it gives to the assassins of character. And, therefore, without further detaining the committee, I am prepared to vote for the abolishment of the Grand Jury system, or for any measure looking to

that end.

REMARKS OF MR. BROWN.

MR. BROWN. Mr. Chairman: I never have, at any time, I believe, taken up the time of this Convention for an hour or so, and I will only occupy your attention now for a few moments. I have been careful in that respect, for I know that time is precious. I am free to confess that this matter of Grand Juries has been before the people of this State for a long time. It has been before this Convention, and now it appears that we are in doubt about whether to retain the old system or to adopt a new one. I am under the impression that we have reason to doubt whether the Grand Jury system has served the grand purpose for which it was

intended. The principles of justice have not been reached. Indict-well as he does, and that they also desire this Grand Jury system to be ments have been found, expenses incurred, and yet the cases amount to modified to the extent, at least, that the Committee on Bill of Rights nothing oftentimes when they come to be tried before the Court after- have recommended. ward.

Now I would say with regard to my portion of the State, which I more especially represent, the subject has been before them, and they have had a chance to investigate it; they have had experience in the matter, and that experience has brought them to give it more than passing consideration; and they are in favor of quite a radical change in the Grand Jury system. Now, as a matter of course, it should always be considered whether a thing is legal or not; and the next thing is, does the sentiment of the people back the proposition-is it sustained by the people? And if it is, I hold that it is our duty to try and answer their demands, and to suit them with such laws as they require.

We hear a great deal on this floor about certain principles of the Constitution being sacred, and that they must not be trampled upon; that sacrilegious hands should not reach forth to touch certain great principles; and the Grand Jury system is held out to be one of that kind. Now, Mr. Chairman, we understand that the great principles of carrying out the wishes of the people lie back of all this, and is the foundation of all this; and if we find it to be the sentiment of the people to change this portion of our Constitution, I hold that it is our duty to do so. I am, therefore, in favor of the report of the Judiciary Committee. I think it will about answer the purpose of the people I represent more immediately, and I think will be indorsed by the people of the State.

SPEECH OF MR. BARRY.

MR. BARRY. Mr. Chairman: So much has been said on this important question, and there are so many other important questions to come before this body, that time is precious. But this is as important a question as any that we will be called upon to consider, and it is right and proper that gentlemen should give the reasons for the faith which is in them. And, sir, while a great deal has been said on both sides of this matter; while a great deal has been said in support of the report of the Committee on Bill of Rights; while a great deal has been said in advocacy of it by eminent gentlemen who are able to give their reasons for the faith that is in them; while I agree with Mr. Campbell-as they are views I have entertained for years-believing that this jury system should be changed, not simply the trial jury system, but the Grand Jury system-I think this is one of the necessities of the times; one of the things that requires to be changed-it is for that reason I now ask to be heard for a few moments; and I trust this matter will not consume as much time as the others have.

Now, sir, the question before this body is this: would it be a wise departure, would it be beneficial to the people of this State, to remodel the Grand Jury system, as provided in this Bill of Rights, so that the complaints which are now made may be done away with, so that now a complaint may be made as now made, before a Justice of the Peace, as was suggested by other gentlemen, giving a mode of procedure for the examination of criminals. With this new system of bringing criminals to trial, there will be a prompt administration of justice; the guilty will be punished, as they now are, and a vast saving will be made to the State. When gentlemen speak of economy, I say this is a move in the right direction. I say that a vast expenditure made in the other case all over the State, will be saved, and furthermore, that the power that one or two men have now, and often used corruptly, will be abolished. The gentleman from San Bernardino, Mr. Waters, has stated that it would be placing a dangerous power in the hands of one man; that he might allow his spite and spleen to find vent upon the defendant. Well, I say if there is any case where spite and spleen on the defendant can and has been used, it is under the present jury system, the star chamber proceedings, as it has very properly been termed, where a man is brought before them and charged with a certain offense, at least without the privilege of being heard, though the law says he may introduce witnesses before the Grand Jury if he so desires. But how seldom do they ever do that, and when they do there is no chance for any defense. He may be allowed to be heard, but how seldom do they allow even the defendant himself in the star chamber which serves to smirch and blacken the character of an individual. It is corrupt in its very nature, and to that extent is the product of ancient barbarism. I say, sir, there is every reason why the Grand Jury system should be modified as recommended in the report of the committee. That it is necessary; that the public interests will be better subserved by it; that if a man is guilty I believe he would be punished under this system, and if he was innocent he would not be held by the District Attorney and Justice of the Peace, provided you elect men who are governed by a sense of duty, and it is presumed that in all cases the people will elect men who are capable and honest. True, there have been exceptions, and they are likely to arise again, but this very matter incorporated into the Constitution will cause the people to be more watchful, and men are presumed to be honest and conscientious in the discharge of their duties. It may be the case-it may possibly be in some instances-that the District Attorney will have used the power placed in his hands I will say that personal experience has convinced me that some change improperly. There may be exceptional cases, but I hold that where the is necessary in the system. Having filled the office of District Attorney abuse may arise in case this becomes a law, and this is inserted in the for a considerable time, I am aware of the evils that exist in the Grand Constitution, that it will not be as great as it now is, and will continue Jury system. I am aware that a man may, through, spite, or personal to exist so long as the present Constitution of the State stands. I believe, feelings, work an injury on his fellows without any good cause, without sir, that, as was suggested, when the responsibility is left with one or legal reasons attempt to bring a matter before the Grand Jury which two individuals, in the case of the Justice of the Peace, or District never should have been brought before it, and the case presented for Attorney, or the Judges of the Superior Courts, which we will probably trial, when, in fact, investigation shows that the charge was wholly have, as recommended by the Judiciary Committee-that when this is unfounded. This is not an exceptional case, and I believe there is no done, that each one will recognize the power with which he is vested, gentleman who has had any experience as a prosecuting officer but and that each will strive to do his duty honestly and fearlessly. As to knows that the Grand Jury system is greatly abused like the trial jury any abuse of power, I do not think it will be as likely to arise as under system, and always will be. I claim that it is public opinion which the present system. And believing that this is a necessity; that this asks for this change, as much so as it does for a change in the trial jury change is needed; that it would promote the public interest; that crimisystem. Gentlemen may speak of the ancient and time-honored insti-nals would be more likely to be convicted than now; that the ends of tutions of our fathers, which have been so long before the people, and justice would be better subserved, I therefore give it my support, and I been honored so much. I will say to them, as before intimated, that trust that in the spirit that the trial jury system was acted upon yesterwhile I have all respect for the views and opinions that were worthy to day-that the same spirit will govern this body in incorporating this be respected, this is an age of progress. We are moving forward to a matter into the Constitution. This will not be a work of barbarism, it higher sphere, learning more and more by experience, and that we should will be in accordance with the spirit of the age, this progressive age. It not be governed by the opinions and laws of our fathers when it is is what the people demand at this time, and there is no danger, as the proven by experience that they were wrong. Times have changed. gentleman from San Bernardino, Mr. Waters, seemed to intimate, that There was once such an institution in this country as slavery, and there the Constitution would be swamped, or that it would be placed in jeopwere those who defended it upon the same ground that it was one of ardy. I can safely say, that if these two provisions are incorporated into the institutions of our fathers, handed down to us; that it had been in the Constitution, the people will gladly indorse them. I believe, existence so long it ought not to be touched. So with this, you must sir, that the sense of this Convention is that this provision shall be incornot lay violent hands upon it because it has been in existence so long.porated into the Constitution. And I believe that this will be better for But, sir, unanswerable logic has determined that slavery was wrong. the interests of the people; the ends of justice will be better subserved if The people rose in their humanity and wiped that stain from the Con- we adopt this proposed system. stitution. It had existed long enough, and a freedom-loving people, those who believed in the Declaration of Independence, arose and said that it should exist no longer. Such a stain had existed long enough; and in the same manner they declare now that this Grand Jury system, this grand old humbug, shall be no longer tolerated.

THE CHAIRMAN. The question is on the amendment proposed by the gentleman from San Bernardino, Mr. Waters.

SPEECH OF MR. LAINE.

This may strike the gentleman from San Bernardino as being very irreverent, as being very strong language, but, sir, I believe that three fourths of the people of this State will say I am right when I make that remark. I believe they demand this change. I believe they are unwil-speak, a change of the government, and before we act upon a proposiling to reverence our fathers to the extent of maintaining this system any longer.

Now, sir, I believe that the deliberate judgment of this body, in its assembled wisdom, believing that they were sent here to express the will of the people on this and other questions of great importance, whether on issues of the campaign or not, matters not. It is true that there are other important issues before the people - taxation and restricting our corporations, making taxation more equal and uniform, which is one of the great questions we will be called upon to consider. As the gentleman from San Francisco, Col. Barnes, said a few days ago, all other questions sink into insignificance beside it. This is a great question which the people demand shall be fully considered, and when he said he was with us on that question, I know that when he gave us that assurance he meant every word he said, for he is not a man to go back on what he says. I know that he knows that the people of this State desire these things to be done, and I believe I understand the people as

MR. LAINE. Mr. Chairman: There has been a great deal of discussion upon this question, but it is a question of no ordinary importance. The question before this Convention is this: Shall we stand by the strongest and oldest institutions of our country? It involves, so to tion of this sort, we should be very sure that we are right. We should be governed by sober judgment and by solid reason. I know that men are often carried away by things of this sort. Now, I have not been able to agree with the Judiciary Committee, or with a majority of them, because this discussion must have developed the fact to this body that the Judiciary Committee were divided on the proposition. Of course, a majority of the committee were in favor of the proposition as reported back to the Convention. There were gentlemen on that committee, however, who did not agree in that report. It was not thought necessary to submit to the Convention a minority report, because, upon a question of this magnitude, of this importance, we all very well knew there would be discussion, and in that discussion the views of the various members of the committee would be brought out and the matter fully considered by the Convention.

Now, sir, I do not agree with any of the propositions now pending before this body. I am in favor of retaining the Grand Jury in all its