such sacred rights as life and liberty should be carefully guarded, and not be allowed to be put in jeopardy by anything less than the unanimous verdict of twelve of a man's peers-that unless a jury of twelve impartial men all agree that he is guilty, the man shall not go to the scaffold or the dungeon--that the case should be so clear as to convince the minds of the whole twelve, or that mercy should intervene with a doubt, and snatch the accused from the impending danger. But no one questioned, during that canvass, the propriety of the threefourths verdict in civil cases, because it is well known that there is no place under the canopy of Heaven where, in the experience of men, it has been found so difficult to prevent one man at least, on a jury, from being tampered with, as in this country; and especially in these mining cases, involving immense interests. One man stands out, and thus enables a company to continue in possession of a rich mine, administering its proceeds, and enjoying its revenue, to the detriment of the proper owners, all through the trickery, and dishonesty, perhaps, of that one man, until, in the course of time, perhaps a year or two, the case comes up on the calendar for a new trial. I think this is an innovation to which the people will consent, and that the verdict by three-fourths or more of a jury, will be found in practice fully as safe, and even more likely to be right, than where one single juror has the power to stand out and "hang" the jury. Mr. EARL. I hope the section will be allowed to remain as it is. I have heard in Virginia City of cases of this kind, where men have been known to say in advance that such and such cases could never come to trial, because, as they said, "we can hang the jury." I think it is necessary for the general interest and good of the country, and for the progress and development of our mines, that we should retain that section as it now stands. The civil cases which come before our Courts are of great importance, differing in that respect from those of California, or of any other State in which we have had any experience. I think we certainly should adopt this provision for a three-fourths verdict. Mr. WARWICK. I perfectly agree with the gentleman from Storey, (Mr. DeLong,) in regard to the amendment proposed, providing that a unanimous verdict shall be required in all criminal cases. But there is surely less danger of injustice being done by a two-thirds verdict of a jury in civil cases than there would be under the requirement of a unanimous decision. As the gentleman has urged upon the Convention, it is the easiest matter in the world, in cases pending before the Courts with probably a million of dollars, more or less, in the balance, to get at least one individual on the jury who can be improperly influenced. It would certainly be easier to do that than it would if a verdict could be rendered by eight or nine out of the twelve. The [July 6. object, undoubtedly, of all trials in the Courts is to secure justice to all parties, and that being done, it is all the law requires. The important point is to get at the readiest and surest means of securing justice, and if any gentleman can prove to me that a unanimous verdict will be more likely to secure that end than a two-thirds or three-fourths verdict would, then I certainly should vote for the former proposition. Still, in a criminal case, where the life of an individual may be trembling in the balance, I should be in favor of requiring a unanimous verdict, preferring rather to allow ninety-nine guilty men to escape than that one innocent man should suffer. But in a civil case, and, sometimes, perhaps, one of the utmost importance, involving millions, or, at all events, hundreds of thousands of dollars, I certainly think that a three-fourths verdict would be more apt to secure justice to all parties than a unanimous verdict would be likely to do. I suppose that there is no gentleman, either exercising any judicial functions or engaged in practising law in Nevada, but is fully aware of the manifest injustice which time and again litigants are subjected to, and the sometimes immense expense to which they are put, on account of there being some improper persons on the jury. Perhaps, while the party thinks that he has carefully guarded every avenue of approach, he finds that still, by some means or other, some one man out of the twelve has been secured to the adverse interest, and he loses the verdict. The man who is thus secured by the artful policy of one or other of the litigants, is enabled to defeat the ends of justice. I hope the proposition contained in this section will carry, however much it may be deemed to be or proved to be an experiment. But, sir, it is not altogether an experiment. I believe that it has been tried in the State of Louisiana, or elsewhere, and that it is not, certainly, altogether confined to Scotland." Of this, however, I will not be positive. But, whether it is or not an experiment, I do not believe in sacrificing to any time-honored evil, simply because it has the sanction of time. If our present circumstances demonstrate to us that a new condition of things would be better for us, that a new system would work better in our country than the system of injustice to which we have submitted in the past, I am not, for one, certainly, afraid to try the experiment. Any melioration you might attempt to make, either in law or ethics, would meet with this same opposition in behalf of anything which has the sanction of time. You are always met with this old-time cry of "innovation!" No, sir! although I am in favor, where right guides the way, of treading in the beaten path, still, if innovation is necessary, I am not afraid to innovate. Why, sir, our government was an experiment in the past, but it has now the sanction of a great nation. Wednesday,] CHAPIN NOURSE-FITCH-DELONG-BROSNAN. I hope in this case we shall not fear to innovate where the ends of justice demand the adoption of this change in our judicial system. Mr. CHAPIN. The amendment proposed by my colleague, (Mr. Fitch), is to prevent this experiment, or this innovation, and to adhere to the old law, or rule of practice, of requiring a full verdict by a jury of twelve men. I hope that amendment will not prevail, because I want to try that experiment, or that innovation. This is the very country to try it in. Our circumstances are not like those of any other people in these United States. We are, as my friend from Washoe, (Mr. Nourse), remarked yesterday, mostly immigrants here. We are from all parts of the world, unknown to each other. We have our juries sitting upon cases where millions of dollars are at stake, and we are obliged to take men for such juries who are unknown to us, whose integrity has never had a test; and we know that it has been proved, time and again, that some of those men can be approached that they can be bribed to stand out-and verdicts have, in that manner, been prevented in cases where the greatest injustice has thereby been done. I have resided more than four years in this Territory, and I can go out into this community and count up scores of men who have been ruined in that very manner; simply because twelve men were required to find a verdict, and perhaps one single man who stood out would prevent it. The result has been, that where poor men have been engaged in litigation with rich companies, they have been utterly unable to come into Court to try their causes over again. I see a great deal more safety in depending upon a verdict of three-fourths of a jury, than in requiring a unanimous verdict from twelve men whom you do not know. Therefore I hope the amendment will be voted down, and we shall adhere to the section as it stands. It will not apply to criminal cases, but to civil cases alone. And again, there is another safeguard in the fact that we leave it to the Legislature, so that if they, in their wisdom, think that the experiment does not work well, they can, by a vote of two-thirds, at any time alter the law, and require a unanimous verdict. I say, let us try it. Mr. NOURSE. I am opposed to the amendment, for the reason that I like exceedingly this provision for a three-fourths verdict in civil cases. The reason for my objection to the present sytem is, that where interests of enormous magnitude are in litigation, it is quite easy to tamper with some one of the jurymen; but where a verdict can be rendered by threefourths, it make the number to be tampered with larger, and therefore increases the difficulties in the way of such tampering. I can see no great difficulty or danger in it, for when we go into the Supreme Court, and two judges out of three decide against us, we do not complain. But the gentleman from Douglas, (Mr Hawley), presents an argument against it on the score of humanity. Now I suppose that if a [July 6. verdict by three-fourths of the jury is required, and a larger number than three-fourths should agree to it, it would not vitiate the verdict. The gentleman seems to think it would, and that, in such a case, instead of juries being "hung." they would have to be drawn and quartered. [Laughter.] I would like to know, if in the Scottish authorities, there are any cases mentioned of the division of jurymen in that way. Mr. FITCH. Men who are engaged in the profession of the law do not naturally respect the jury system. They come so much in contact with the evils of that system that they are willing to do anything in order to mitigate them. But, nevertheless, the people are wedded to the jury system, and I do not think we could adopt any clause which would be so hurtful to the chances of the adoption of our Constitution as this proposed innovation. My colleague, (Mr. DeLong,) called our attention to the fact that nobody objected to this three-fourths verdict modification of the jury system, except in so far as it applied to criminal cases. Now, the gentleman's memory is certainly very much at fault. I can remember of hearing the gentleman's eloquent and most sonorous periods, and his loftiest flights, during the last canvass, over in Dayton, and Silver City, and Como, where he made speeches, in which he called particular attention to this terrible innovation upon our jury system; a system, he said, which had been handed down to us from King John, from whom it was wrested in magna charta by the barons of Runnymede. That sacred guarantee of our liberties, he told us, had been interfered with by the Constitutional Convention of Nevada, and that innovation on our chartered rights he repudiated and denounced with all the force of his invective and sarcasm. Now, while I did not altogether indorse the entire accuracy of all my colleague's historical allusions, I do think that this is an innovation of at least doubtful propriety. So far as bribing jurors, is concerned, I presume that if a man can "bang" a jury by bribing one man, he can, with a little more effort, accomplish the same thing by bribing three or four men. Mr. DELONG. Will the gentleman allow me to correct him? I do not remember the rounded periods and lofty flights to which he refers [laughter]; but if I did indulge in that style of argument, I must be pardoned for acting on the same principle as the man up in Kentucky. who, as the story runs, turned his jacket in order to save his life. But, Mr. Chairman, as all the delegates here are supposed to be politicians, I imagine that nobody is going to hold me to account for not recollecting all that I ever said on the stump. [Laughter.] Mr. BROSNAN. I am not disposed to say much on the question now before the Convention, but I cannot see, for the life of me, why men are so wedded to the system of requiring a unanimous decision by twelve men. In the last Convention I introduced this innovation, Wednesday.] BANKS-HAWLEY-FITCH-WARWICK. [July 6. as it is called, and I suppose I may be consid- all experience of human conduct, passions and underered, to some extent, bound to give the reason standing, that it could hardly in any age have been why I did so. I am, however, relieved from introduced into practice by a deliberate act of legisthat necessity by the full explanations given by gentlemen who favor the section as it now stands. Still, I would ask gentlemen who are op Another learned commentator says:- lation." With these comments upon the question, I hope, sir, that the motion of my colleague will not prevail, and that we will maintain and adhere to the plan of a three-fourths verdict of juries in civil cases. The question was stated on Mr. Banks' amendment. Mr. BANKS. I will withdraw my amendment so as to get a direct vote on the amendment of the genleman from Storey (Mr. Fitch). The CHAIRMAN. The Chair is of the opinion that the vote upon that amendment would preclude any further amendment of that portion of the section. Mr. BANKS. Uudoubtedly so. The question was taken on the amendment proposed by Mr. Fitch, and it was not agreed to. Mr. HAWLEY. Inasmuch as this innovation prevails in the Convention, and inasmuch, too, Provided, The Legislature, by a two-thirds vote of each branch thereof, may require a unanimous verdict, in such civil cases, notwithstanding this provision. Mr. FITCH. There is no necessity for that amendment, I think. Mr. HAWLEY. Very well, I will withdraw it. Mr. FITCH. I desire to move to amend that proviso by striking out the words "two-thirds," and inserting "a majority," so as to provide that the Legislature, by a majority vote, may require a unanimous verdict. It may be that I am entirely wrong, and that this innovation in our jury system is entirely right. If that be the case, then of course the State Legislature will indorse the proposition and reject mine. But I think we should be willing to leave all those matters to the people, so far as possible. And if we provide here that the Legislature may abrogate this provision, we give the people an opportunity to express their judgment upon it. I am in favor of doing that whenever it can be done without inconvenience. The question was taken on Mr. Fitch's amendment, and it was not agreed to. Mr. WARWICK. I move to amend, by inserting, after the words "civil cases," where they first occur, the words, "in all criminal cases where the offense amounts only to a misdemeanor." My reason is this: as it stands at present, a Wednesday,] JOHNSON-NOURSE-EARL-DELONG. [July 6. person charged with a small offense, as assault was disposed to place on this provision-a litand battery, for example, has no right to waive a jury, even though he may be willing to plead guilty to the offense. Therefore I offer the amendment with a view to expedite the administration of justice. The question was taken, and on a division, the amendment was not agreed to-ayes, 9Does, 14. The CHAIRMAN. There is one matter here, in regard to which I desire to make a remark, and it is a matter which I discussed and thought of much in the previous Convention. This section seems to establish a different rule for the passage of a law than is contemplated in other parts of the Constitution, and I suggest whether it would not be well to have uniformity in that respect. The Legislature, by a twothirds vote, may over-ride the veto of the Governor, and it occurs to me that this provision, allowing the Legislature, by a two-thirds vote, to make the change, would differ with the general system adopted for the passage of laws by the Legislature. Mr. NOURSE. If it is passed by a two-thirds vote originally, then of course, if it is vetoed, the Legislature will pass it again. The CHAIRMAN. But it might happen that the bill would pass by a two-thirds vote, and then after it is vetoed it might not receive a two-third vote. The question is, then, under the language of the proviso, would the bill, notwithstanding, become a law? It seems to me that it will be better to give a definite meaning and construction to our labors, as we progress, so that if hereafter any question should arise, it may be determined by a reference to the reported Debates and Proceedings of the Convention. Mr. EARL. I understand, from the reading of the section, that a two-thirds vote of the Legislature is all-sufficient to make the change. Mr. DELONG. I think that the plain construction of the article is, that the bill shall be passed by two-thirds of the Legislature before it can become a law by the signature of the Governor, and then it must be signed by the Governor and returned in order to become a law. In any event, if the Governor should veto it and return it, although it is passed by a two-thirds vote of the Legislature, it could not be contended that it became a law unless it was again passed by a two-thirds vote, over the Governor's veto. For instance-in order that I may be clearly understood-if it is passed by a majority vote, and approved by the Governor, it is not a law that would affect a change in the jury system. It must be passed, in the first place, by a two-thirds vote of the Legislature, and then it is immaterial whether it is approved by the Governor or not, because if it is returned with his veto, the same vote can pass it again, and it becomes a law over his veto. That is my construction. tle out of place, perhaps, when occupying the Chair-was intended to obviate any difficulty which might possibly arise hereafter, in view of differences of opinion in this body. Now, as I understand the gentleman from Storey, (Mr. DeLong,) he contends that such an enactment would require the approval of the Governor, or if not so approved, would need a two-third vote of the Legislature to pass it over his veto. And my other friend from Storey, (Mr. Earl,) seems to entertain a different opinion. It is for this reason that I now call the attention of the Convention to the subject. I want the language so framed that there can be no possible misconception as to what we do mean. Here are two diverse views, or constructions, given by members of this body-and to my mind, that fact is suggestive of the great need of changing the language of the section in such manner that our views may be harmonized, so that hereafter there may exist no misconception of our meaning. Now, sir, I differ entirely with the gentleman from Storey who last spoke to this question, in the construction he has given to this proviso. As a proposition of law, it must be conceded that it is competent for this body to lodge the law-making power solely in the Legislative branch of the Government; and if we possess this unlimited power, is it not most assuredly within the province of the Convention to confer on them a part of this authority? Most assuredly so. Mr. DELONG. If the Chair will excuse the interruption, I will ask if this amendment will remove the doubt,-to insert after the word "Legislature," the words, "by a law passed;" so that the proviso will read :— 66 Provided, The Legislature, by a law passed by a twothirds vote of each branch thereof, may require a unanimous verdict, notwithstanding this provision. Mr. JOHNSON. Any words will do, that will render definite our meaning. If we require it to be done by an act requiring the same formalities that are observed in reference to other laws, then let us express it in such language as shall leave it certain. That is all I desire. I do not suppose it was the intention of the Convention to bestow the power solely on the Legislature. I think the amendment of the gentleman from Storey will obviate all difficulty. I have no objection to the section, as it is proposed. I know that the reasons urged, in the late Convention, for the incorporation of this proviso, were, that it might possibly be found, being but an experiment, unadvisable to retain the three-fourths verdict clause, and that power should be lodged somewhere, otherwise than in the general mode pointed out for amendments to the Constitution, to reenact the old rule of requiring a unanimous verdict. It was thought that the experiment might prove a failure, and if so, then the requisite two-thirds vote of the Legislature could be readily obtained to effect the change. Something has Mr. JOHNSON. The construction which I been said about a majority; but that having [Mr. CHAPIN in the Chair.] Wednesday,] COLLINS-DELONG-BANKS-BROSNAN-PROCTOR-NOURSE-FITCH. [July 6. been voted down, I think it is not advisable to The question was taken on the adoption of lodge the power with a mere majority of the the section, and it was adopted. Legislature to change a prominent feature in our Constitution. [The PRESIDENT in the Chair.] The question was stated on Mr. DeLong's amendment, to insert the words, "by a law passed," and the amendment was agreed to. Mr. COLLINS. I desire to offer a mere verbal alteration. I move that between the words "jury," and "agree," be inserted, by way of amendment, the word "shall," so as to read, "if three-fourths of the jury shall agree upon the verdict." I think the propriety of the amendment will suggest itself to every mind. The question was taken, and, on a division, the amendment was not agreed to,-ayes, 10noes, 10. Mr. DELONG. I move that the section, as now amended, be adopted. SEC. 6. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel nor unusual pun. The question was taken, and the motion was ishment be inflicted, nor shall witnesses be unreason. agreed to. ably detained. RELIGIOUS TOLERATION. Section 4 was read, as follows: Section 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. Mr. COLLINS. I will state that we have had before us an ordinance drawn by authority of the Enabling Act, which embodies the same general principles in regard to religious liberty and toleration. It appears to me to be entirely unnecessary, therefore, to incorporate this in the Constitution itself. I do not see that it will add any strength or force whatever to the Constitution, or to the principles set forth in this section. Mr. DELONG. It shuts up the bars, though, against polygamy. Mr. BANKS. It seems to me that wherever else this provision belongs, it ought certainly to be here, in the regular order of consttational arrangement. That ordinance is something which we are not likely to be very familiar with in the examination of the Consti tation, but as it seems to have been required separate and apart from the Coustitution, it may be well to pass it separately, as an ordinance; but, at the same time, it seems to me very well to pass this provision in this section, just as it is, in the regular order of arrangement. Mr. BROSNAN. There is a further reason why it should be retained, and that is, there is a provision here in relation to the competency of witnesses, and also a prohibition of acts of licentiousness, etc., neither of which are provided for in the ordinance referred to. Mr. CHAPIN. I do hope the section will pass as it is. No amendment being offered, the section was adopted. Section 7 was read, as follows: SEC. 7. All persons shall be bailable by sufficient sureties; unless for capital offenses, when the proof is evident or the presumption great. No amendment being proposed, the section was adopted. THE GRAND JURY SYSTEM. Section 8 was read, as follows:ital or otherwise infamous crime, (except in cases of impeachment, and in cases of the militia when in actual service, and the land and naval forces in time of war, or which this State may keep, with the consent of Congress, in time of peace, and in cases of petit laron presentment or indictment of a grand jury; and in ceny, under the regulation of the Legislature,) except any trial, in any Court whatever, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall compensation having been first made or secured, exprivate property be taken for public use without just cept in cases of war, riot, fire, or great public peril, in which case compensation shall be afterwards made. SEC. 8. No person shall be held to answer for cap Mr. NOURSE. I wish to inquire as to the effect of that first clause. It would seem that that might shut out the authority for binding over by a justice by a preliminary examination, and yet my recollection is that it is the wording of the Constitution of the United States. If so, it is all right. Mr. DELONG. It is the language of the California Constitution. Mr. NOURSE. I guess we can trust it, then. Mr. FITCH. I would like to inquire in what portion of the Territory—I ask for information we are likely to find men engaged in the naval forces of the United States." Several voices-" Carson river!" "King's Cañon!" "Humboldt Lake!" "Lake Tahoe!" [Laughter.] |