deem it necessary to repose so little confidence in the people. I can discover no objections to permitting our citizens to vote for or against calling a Constitutional Convention, whenever a majority of the members of each House of the Legislature should think it necessary to submit such a question to their consideration. In this particular, our Constitution has strangely departed from that of Iowa, and many, if not all, the recent Constitutions in the eastern States. In former times, when legislators, and other like office holders, were really apt to be more intelligent than the general run of people, their assumed superiority was not without some show of reason. But now, when the weight of worth and intelligence is always out of office, and not in it, I see no necessity for so providing against constitutional reforms that about one third of the members, in either House, can forever prevent them. The third and last amendment proposed by the Legislature, after four years since they first began to give their attention to the subject, is the provision making officials swear they have not fought a duel. It is a thing well enough in itself, but how is it calculated to relieve us from bad government? Of course, we all know it has nothing whatever to do with the government. It is a mere provision for the more effectual suppression of a certain crime, which has been rendered fashionable. Now, ought we to require any further attempts at constitution-making, by the Legislature, before we will even consent to "think "that a convention is necessary for that purpose? But in addition to the experience which this example affords us of this system of constitutionmaking by the Legislature, there are other and perhaps more weighty and conclusive objections to our assuming the task of a Constitutional Convention.

The legitimate duties of the members of the Legislature will not admit of sufficient time or preparation for the proper discussion and consideration of numerous constitutional amendments. No legislators, however able, can possibly bring their minds to the subject, with the same capacity and success, as though they had no other business to engage their attention. Men whose minds are occupied with the thousand and one matters which constantly engage the attention of legislators, cannot be reasonably expected to discharge the duties of a Constitutional Convention, with justice to themselves, or to a subject of such profound importance to the whole people of the country. And besides this, they are not elected for any such purpose, nor are they authorized or even permitted by the Con

stitution to assume any such undertaking. It would be, unquestionably, against the spirit, and, in my opinion, against the express language of the Constitution. It is clearly inconsistent with ordinary human conduct, to expect any one branch or department of a government to be the best calculated to wisely and thoroughly reform itself, and all the other departments of the same government. Undoubtedly, our Constitution never intended to impose such a duty upon the Legislature. The provision for amending the Constitution through legislative recommendation applies only to amendments, and cannot, by any fair or just construction, be made to apply to any general change or amendment of the entire Constitution, but only such amendments as are casual. Whenever the members of the Legislature, or the requisite majority of them, "think" that a revision and change of the whole Constitution is required, the Constitution expressly directs that it be done by a convention, and declares that they shall submit the question of calling a convention to the electors, at the next succeeding general election. And when we do think that such a revision and change is necessary, I do not understand how we can be expected to disregard our oaths, and attempt the task ourselves.

For my part, I conscientiously and sincerely "think it is necessary to revise and change the entire Constitution," and, therefore, neither the advise of friends, nor any other considerations whatever, ought to or shall, deter me from the hearty support of the measure now before the Senate. And I sincerely trust that not even one man will be found in either branch of the Legislature, who does not also think that such a revision and change ought to be made. For I am well aware that there is not one to be found who is any less anxious than I am, to perform his duties faithfully to this country. And it is my firm and sincere conviction that there is no one act so necessary to its welfare as an immediate and thorough constitutional reform.

I will now renew the argument, and endeavor to show still other and more conclusive reasons why every man in these halls ought to feel the same conviction of its necessity. Allusion has already been made to a few entirely new provisions, some of which all will admit the Constitution ought to contain. Many other new provisions might be suggested, some of which might be thought more important than any which have been mentioned. But it would perhaps be necessary to discuss them at length, in order to render their necessity apparent, and I shall

therefore not refer to them; but proceed at once to suggest some of the important defects which the Constitution now contains. And I will endeavor to confine my allusions to those only which have been found objectionable by actual experience, and those which I hope all will admit to be so, without any serious differences of opinion; for I am only anxious to make such suggestions as have, undoubtedly, occurred to every member of this body. God knows that I have no feeling in this matter except to do my duty, and no wishes in regard to it, except such as every sincere man and true Californian must certainly entertain. And I desire the respect and confidence of this body too profoundly and sincerely to knowingly give utterance to any views, concerning so sacred a subject as the Constitution of our country, which would be offensive or even objectionable to a single member of the Senate, many of whom, if not every one of them, I am not ashamed to acknowledge as my superiors. Indeed, had almost any other member of this body devoted all the care, study, and labor to this subject which I have bestowed upon it, I am confident he would convince every one of us that the welfare of this country not only demands that a constitutional convention should be called, but that it should be called in the quickest possible time.

The first objection to the Constitution, which appears in the order of its provisions, and therefore the one perhaps to be first noticed, is the 3d section of the 1st Article-concerning the right of trial by jury.

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The Constitution says, in tolerably distinct terms, the right of trial by jury shall remain inviolate forever, and that it shall be secure to all; but that in all civil cases, not in all of any particular class or kind of civil cases, but in all civil cases whatsoever, the right of trial by jury may be waived, "in the manner to be prescribed by law.' The law has prescribed the manner in which this may be done, and expressly provided that in all cases where issues of fact are to be tried, they shall be tried by a jury, unless a jury trial be waived by the parties. This has been the statute law on the subject of jury trials ever since our State has existed. It has never been changed by legislative action. It has twice passed the Legislature. It is certainly supported by no forced or unfair construction of the Constitution. It is, beyond all reasonable doubt, what the constitutional convention intended, many of whom were in the first session of the Legislature when the law was first passed. It is unquestionably not necessarily an infringement upon the Constitution.

And, in my humble opinion, it is no more fairly and necessarily in violation of the Constitution, in any respect, than every other law in the statute books of this State. But, sir, the law on this subject has been abrogated by another power in this Government, known by the name of the Supreme Court of California.

That Court, although practically constituted of only two men, has discovered, within the past year, that all the men who have been in our legislatures during the past six years, and all (or at least all, so far as I have ever heard) of the lawyers in this State, have been disgracefully ignorant in relation to the right of trial by jury, and in relation to the new and purely judicial discovery, that we have chancellors and chancery courts in California. That Court has decided that the people of this State do not enjoy the right of trial by jury in all civil cases, even though they should demand it. That Court has decided, and declared it to be the law, that, in what it has chosen to call chancery cases, "the parties" (and I now quote its own language) "are not entitled to trial by jury." (See case of Walker vs. Sedgwick.)

Of course we are all aware that the laws of this State, like the laws of many of the other States, do not recognize nor admit of any distinction between cases in equity or chancery, and cases in law. All such distinctions in the trial of causes (which are only injurious where the two systems of law and equity are combined into one), are now, and always have been, entirely abolished by our laws. No Court of Chancery, as distinguished from a Court of Law, has ever at any time existed under the laws of this State. We all know this to be strictly true. But solely by the edict of our Court, our District Judges are made Chancellors, are authorized to open Courts of Chancery, and are directed to try cases, as Chancellors, in direct opposition to the laws of all our successive Legislatures, which have never recognized nor established any such tribunals, and without their having been created, or even named in the Constitution itself. It is true, some of our district and other inferior courts, find it impracticable to pay much attention to this and other vagaries of the Supreme Court, and therefore follow the law made by the Legislature, and not the law made by that Court, in relation to the right of jury trials. But, sir, since our Court of Last Resort has deemed it fit and proper to decide that our Constitution does not secure the right of trial by jury in all cases, and since our Constitution affords us no certain redress against such decisions, except by

changing the Constitution, all will admit that it ought to be changed, and its language rendered so plain that no Court will venture to disregard it. I do not mean to say that all would be in favor of continuing jury trials as juries have been heretofore conducted, and are in the contemplation of the Constitution organized, but I do mean to be understood as saying, that every man in his senses, will prefer jury trials under a reformed jury system, to being left in this country at the absolute mercy of only one single individual.

The next objection to the Constitution, which I will allude to, perhaps only requires to be mentioned, in order to be admitted. It is the provision which declares, that "all the laws of a general nature shall have a uniform operation."

How such a provision came to be inserted in the Constitution of California, some of whose counties are as different in their wants, and actually as far removed from each other, as counties in the States of South Carolina and Massachusetts, it is difficult to determine, except upon the supposition that in copying the Constitution of Iowa, this provision was included among the rest. I have not been able to discover any such provision in the Constitution of the United States, nor of any of the greater States in the Union, where it is often found necessary to give laws of a general nature, a different operation, according to the different wants of the country. Such a provision in the Constitution of our State, is not only unnecessary, but exceedingly mischievous. It interferes with our giving to laws of a general nature, such different local operation, as the best interests of the whole country may actually require. Adopting the loose and merely arbitrary construction which has been sometimes given to other parts of the Constitution, by the Courts, members have been found in the Legislature, who were willing to attempt to construe away the effect of this section altogether. But it still stands there in the Constitution, occupying a whole section by itself, and its full weight and evident meaning must be given to it. Men of easy conscience may give it such a construction as to make it mean just nothing at all, and be willing to pass laws of a general nature, without heeding it. But even if it were not wicked, it would certainly be injurious for men holding office under a Constitution, not to be humbly and truly obedient to every provision which it contains. I certainly most heartily recommend the doctrine of strict and faithful obedience to every syllable of the Constitution.