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NOTE: You may notice textual errors throughout this document, many of which have been left intact from the original text. Should you want to investigate the integrity of the original report, please refer to the original two printed volumes containing the official report of the proceedings and debates.

The roll was called by the secretary and the following members were found in attendance:

Adams    
Allen    
Larsen, C. P.
Lewis
{243 - REPORTS}
Anderson
Barnes
Bowdle
Boyer
Brandley
Button
Buys
Call
Cannon
Chidester
Christianson
Clark
Coray
Corfman
Crane
Creer
Cunningham
Cushing
Driver
Eichnor
Eldredge
Emery
Engberg
Evans, Weber
Evans, Utah
Farr
Francis
Gibbs
Goodwin
Green
Hammond
Hart
Haynes

Prayer was offered by the Rev. R. Carson, of the African Methodist Episcopal Church.

The journal of the seventeenth day's session was read, corrected and approved.

A communication was received from the Y. M. C. A. Debating Society, inviting members of the Convention to attend the debate of that society on the question of prohibition.

The same was declined with thanks.

The PRESIDENT. Presentation of petitions and memorials are in order.

Reports of standing committees are in order.

Mr. VARIAN. There will be a report from the committee on rules in a moment.

A report from the committee on rules was received and read by the secretary as follows:

The committee on rules, to which the report from the committee on schedule, miscellaneous and future amendments, recommending that the membership of that committee be increased by adding thereto two members from the cities of Salt Lake and Ogden, was referred, beg leave to report the same with the recommendations that said committee be so increased.

C. S. VARIAN,

Acting Chairman.

Mr. VARIAN. I believe that has to lie over one day.

The PRESIDENT. Yes; under the rule it will.

Reports of select committees.

Mr. RICKS. If you will permit me, I would like to offer the report of a standing committee.

The PRESIDENT. If there is no objection, the gentleman may submit his report.

The secretary then read the report as follows:

Your committee on schedule, future amendments and miscellaneous respectfully report for your consideration the accompanying article on future amendments {244 - PROPOSITIONS} to the Constitution. We also report the following propositions and recommend that they be filed:

No. 50, by D. C. Eichnor, of Salt Lake.

File No. 53, by J. F. Chidester, of Garfield.

RICKS,

Chairman.

Mr. BOWDLE. I have a proposition here I wish to offer and have it referred to the committee on legislative. It is a proposition for insertion in the Constitution, and I move that the rules be suspended and the whole proposition be read the first and second time by its title and then referred to the proper committee.

The motion was agreed to.

Said proposition was read a first and second time by its title and referred to the committee on legislative.

Mr. Maloney introduced a proposition relating to irrigation and water rights, which was read a first and second time by its title and referred to the committee on water rights, irrigation and agriculture.

Mr. Bowdle introduced a proposition against lotteries which was read a first and second time and

referred to the committee on legislative.

Mr. Buys introduced a proposition providing for income tax, which was read a first and second time by its title and referred to the committee on revenue, taxation and public debt.

Mr. L. Larson introduced a proposition relating to salaries of public officers, which was read a first and second time by its title and referred to the committee on salaries of public officers.

Mr. Maloney introduced a proposition relating to the election of representatives, which was read a first and a second time by its title and referred to the committee on apportionment and boundaries.

The PRESIDENT. Are there any other propositions for insertion in the Constitution?

Unfinished business is now in order.

Mr. SQUIRES. I move we now resolve ourselves into a committee of the whole.

The motion was agreed to.

COMMITTEE OF THE WHOLE.

The Convention then resolved itself into a committee of the whole with Mr. Squires in the chair.

Mr. EVANS (Weber). Mr. Chairman, I would desire with the consent and permission of my second to withdraw my appeal which I put on yesterday from the decision of the chair. I do it in the interest of hastening business. I think it is unnecessary to carry it to a vote.

The CHAIRMAN. If there is no objection the appeal is withdrawn.

Gentlemen, we still have under consideration section 4 of this article.

Mr. VARIAN. The question before the house is to lie on the table, is it?

The CHAIRMAN. Yes, sir.

The question was then taken on the motion to lie on the table and the motion was agreed to.

The CHAIRMAN. Section 4 is still open for amendment.

Mr. SNOW. I move to strike out the word “is” in the third line, and insert in lieu thereof the following, “the rights of conscience shall never be infringed. Perfect toleration of religious sentiment shall forever be guaranteed.” All through the section the word “shall” is used; for the sake of uniformity and harmony, I think “shall” ought to be inserted there. It does not make it any stronger, but it makes harmonious.

Mr. WHITNEY. I am also opposed {245 - BILL OF RIGHTS} to the motion to amend it. I think it is shorter as it is, and it is on the fundamental law of every state, that it should guarantee that important matter.

The question was then put on a motion to amend, and the amendment was rejected.

Mr. ELDREDGE. I move to strike out all of section 4 after the word “no” in line 12, and insert in lieu thereof, “No public funds or property in this State, whether accruing from taxation or otherwise, shall be apportioned or used for the purpose of founding, maintaining, or aiding, directly or indirectly, any church, religious denominations, religious or secular society, or institution, society, or undertaking, which is wholly or in part under sectarian, ecclesiastical, or secular control.”

Mr. THURMAN. I ask that the resolution or motion to amend be read again for the information of the Convention.

The secretary re-read the resolution.

Mr. VARIAN. I would like to hear the resolution that was laid on the table concerning the same matter read which was offered in yesterday's proceedings.

The secretary then read the resolution referred to.

Mr. BUYS. I would like to ask the gentleman from Summit County if he intends that this will also strike out the amendment that was passed yesterday that no property qualification shall ever be required in order to vote or hold office?

Mr. ELDREDGE. Not being present yesterday, I was not aware there was any amendment offered, but that this section was reached to-day.

Mr. BUYS. The section was amended yesterday as I understand it. I wanted to know whether it carries that with it?

Mr. ELDREDGE. I was not present yesterday. I was not aware there was any amendment attached to that section. My idea was to get the substance of everything in this amendment.

The CHAIRMAN. The chair will explain that yesterday a matter was offered in regard to this section, and it was purposed to add it to this section. Mr. Buys wants to know whether you want to strike out of this section the last sentence as printed. They were printed yesterday.

Mr. ELDREDGE. I will say in explanation my motion was only applied to that portion which is

printed in the original bill of rights.

Mr. EVANS (Weber). Mr. Chairman, I desire to support the amendment offered by the gentleman from Summit; I would like to be permitted to have it so I can refer to it in more detail. I think, Mr. Chairman and gentlemen of the committee, that this amendment is important and will result, if adopted, in very much good to our future State. I have no particular objection to the matter which is sought to be stricken out. All that matter and substance is included within the amendment. But there are additions in the amendment which cover every class of societies and which, if adopted, would prevent the appropriation of any public funds by future legislation to such associations. In order to make myself more clear, the portion which is sought to be placed therein, “No public money or property shall be appropriated or applied to any religious worship, exercise, or institutution [*note*], or for the support of any ecclesiastical association.” It will be observed that the particular class named in the matter sought to be stricken out is ecclesiastical establishments. In fact, it all applies to a particular class of institutions, that is, a religious class. Mr. Eldredge's amendment seeks to go further and to prevent the appropriation of any public funds to secular societies or institutions. It would seem to me that this is right in principle. I see no reason why there should be a restriction upon the Legislature to appropriate public funds for religious institutions, and the Constitution be left {246} open so that such funds may be appropriated to secular institutions. Of course that would cover atheistic and infidelic institutions. If we should happen to have a Legislature in the future, who were of that particular class, there would be no restriction upon the members of the Legislature to appropriate to an atheistic class. Were we to prevent by putting a restriction upon any future Legislature, prohibiting them from appropriating our public funds_these funds drawn from the people by universal taxation, and giving it to a class of that character already named, I can see no harm in this, if we do it; in fact, everything seems to me to be embodied in it in the right direction. It covers church, religious institutions, religious or secular societies, or any institution or society or undertaking which is wholly or in part under sectarian or secular or ecclesiastical control. Now, gentlemen, let me explain to you a little further in respect to this matter. The function of a constitution is to put restrictions upon future legis-tion [*note*]. If this were not true, it would be wholly unnecessary to make any Constitution at all. The Legislature would have the plenary power, and indeed, the Legislature of the State would have supreme power to legislate upon all matters certainly not inhibited in the Constitution of the United States. We say in the latter part of section 4 that the Legislature shall be restricted from appropriating any public funds to religious sects or societies. That is a matter to which we are all agreeing. Now, if that be true, can any gentlemen put forth any reason why there should not also be a restriction upon the Legislature from appropriating its funds to secular institutions_to those who make no pretense of religious sentiment? A secular society might organize, or anti-religious or anti-Christian society might organize and derive the benefits, unless there are some restrictions of this character, and there is nothing I might say in the way to prevent the Legislature from appropriating or making appropriation of public funds for the purpose of supporting such societies. I admire the amendment I think its spirit is right. I think it is right, and I think it ought to be supported and succeed and be carried by our votes.

Mr. VAN HORNE. I think that some of the gentlemen must either have misinterpreted the effect of those words or else I do. I do not know which it is, but it seems to me we should forbid the

appropriation of money to any of the purposes for which money is actually appropriated. For instance, I think the State, if affairs are under secular control_I take in the way this reads in the proposition, that it will forbid the Legislature from ever granting a bounty. Whether that is to be the sense of the Convention or not, I think it should be understood. I think it should be understood thoroughly what we are voting upon. In voting upon such an amendment, if they feel and wish to include bounties and if that carries in the Constitution_I think it does. I think if they do not want to do it, they should not pass such an amendment as that.

Mr. THURMAN. I suggest this, that if any gentleman on this floor sees any danger in the proposed amendment, that can be obviated by amendment to be proposed by himself, he ought to move to amend_ to put in a saving clause; but, gentlemen, if you don't want to do so, don't place yourselves here in the position of desiring to exclude the appropriation of funds to religious organizations and leave it open to be appropriated to anti-religious organizations and societies of secular nature, of a thousand and one kinds, which exist in the country. I think it is just as proper, however, and I want it to be understood, but I deem it as improper to appropriate money to an ecclesiastical organization, as to one which is not of an ecclesiastical organization. {247} I think it is just as proper to appropriate money to an Odd Fellows' society, or to any other society to which one part of the people belong, as to religious societies. I believe in the amendment offered by the gentleman that no society or institution or organization, which is ecclesiastical, religious, or secular, has any right to any appropriation. I am in favor of the amendment. I don't see now in the word secular how the matter suggested by the gentleman of Salt Lake could honestly be construed in the language he puts, unless in what he proposes, he is in favor of making ecclesiastical organizations the only subject to which this legislation is directed. Go on with your amendment, gentlemen, so far as I am concerned. I wish it did include bounties and I would vote for it, but it seems to me that it is not included in the language as it now stands.

Mr. GOODWIN. I reckon there is no great division of sentiment on the principle that Mr. Eldredge is trying to express. It is only a doubt. It is only how the supreme court, for instance, would construe this paragraph as it is put in the bill of rights of Utah. If the resolution is changed, so it would include all benevolent societies making it specific, Odd Fellows, Masons and other societies of that kind, I would very cheerfully support it, and I would hate to vote for something here that, after a little while my friend from Weber, Mr. Evans, would be able to go to the Legislature and when the proposition was made to carry forward some great needed public improvements in which the people would be interested, and in which the people of the State needed help, have this gentleman say, “if you only had your eyes open when the Constitution was being made, you could have fixed it, but as it was you blindly voted for it, and now we have you. It is against the Constitution; if the peo-of this State should not have their own faults on that subject to appropriate their money for a purpose of that kind. I am clear that the language is all right but as I understand the word secular, it means anything besides religious causes. I am free to say that it covers the whole majority of this house and I would like to have the word changed or some explanation put on it, or have it continued for a day or two until we could have time to think it over, or vote it down.

Mr. ELDREDGE. I would say there is no objection to having this proposition continued for a day or two and have it printed for the further consideration of the Convention. The section that is

being considered did not exactly reach my views. While I am sorry to say I was at a loss to be present here yesterday, and hear the argument yesterday, without that I have to express my sentiment as I do relative to this question. Now, considering societies, whether they are under the head of secular or whether they are under the head of ecclesiastical, or whether it may be, all ought to have equal privileges and equal opportunities, and no restrictions should be placed upon one that should not be placed upon the other, and that is what I still have in view. I would favor that the amendment go over until to-morrow to give the gentlemen of this Convention further time to consider the construction of this amendment, and I now move you, Mr. Chairman, if it be in order, to leave the consideration of this until our next sitting.

The CHAIRMAN. It is not in order.

Mr. BUTTON. Is not it in order to make a motion to pass this section and take up the next one?

The CHAIRMAN. I should say not.

Mr. BUTTON. And not act upon it at all?

The CHAIRMAN. No, sir; and we shall have to consider the amendment offered by the gentleman from Summit.

Mr. ELDREDGE. Rather than have it go to a vote while the house seems to {248} be in doubt relative to the full meaning of the amendment, I will ask the privilege of withdrawing it for the time being.

The CHAIRMAN. If there is no objection_

Mr. EVANS (Weber). I second the motion of the gentleman from Summit, and I do object to it being withdrawn. I would like, however, for it to go over a day and it will give everybody an opportunity for considering it.

Mr. VARIAN. I will draw the gentleman's attention to the fact that there can be no objection to letting this matter go over; before the final submission of this article, when it is reported, an amendment can be offered on the third reading, in the Convention.

Mr. CHAIRMAN. If there is to objection the amendment will be withdrawn.

Mr. EVANS (Weber). I do object.

Mr. ANDERSON. I move we lay the amendment on the table.

The motion was agreed to.

Mr. FARR. I call for the ayes and noes on that.

Mr. EVANS (Weber). The chair is right for once.

Mr. FARR. I would propose an amendment to that section. I wish to commence at the word “no” in the twelfth line and have it read in this form: “No public money or property shall be appropriated for or applied to any religious or secular society,” leaving out the word “worship”_“or for the support of any ecclesiastical denominations;” so it shall read in this way, “no public money shall be applied to any religious or secular society for the support of any ecclesiastical society.” I wish to amend it to read in that way which I think covers the main object of the previous motion.

The motion to amend was seconded.
Mr. VARIAN. Not out of any disrepect to my friend from Weber County
in order that the whole matter can be considered, my friend, Mr. Eldredge, has his motion to amend laying on the table. I move to lay this on the table.

The motion was agreed to.

Mr. EVANS ( Weber). I rise to a point of order. That motion to lie on the table is not in order in the committee of the whole, and I make a further point of order that the effort to lay this amendment on the table lays the whole of section 4 upon the table. I read from page 45 of Roberts' rules of order.

Mr. VARIAN. I call the gentleman to order. There is nothing pending before the house now upon which can be based the point of order. He permitted the question to pass the judgment of the chair and it has been determined by a vote which has been executed.

The CHAIRMAN. I think the point of order is well taken.

Mr. EVANS (Weber). I appeal from the decision of the chair upon that question.

The CHAIRMAN. Gentlemen, you hear the appeal, the question is shall the decision of the chair be sustained?

Mr. EVANS (Weber). I desire to make a few remarks. I read from Roberts' rules of order, on page 45, “the effect of this motion is intended to place on the table_

Mr. VARIAN. I again call the gentleman to order. The only matter which he is discussing now is the subject matter of my point of order, which was that the gentleman had no standing. I raised the point of order because there was nothing pending before the house. He is now proceeding to discuss the merits of his original point of order.

The CHAIRMAN. Mr. Varian's point of order is well taken.

The CHAIRMAN. You are out of order.
{249}
Mr. EVANS (Weber). Does the chair refuse to hear me?

The CHAIRMAN. Yes, sir. You are not discussing Mr. Varian's propositions.

Mr. EVANS (Weber). I wish to say again, I desire to read from page 45 of Roberts' rules of order. The effect of this motion is intended to place on the table all that adheres to the subject.

The CHAIRMAN. That is the very argument which Mr. Varian objects to and makes the point of order upon again.

Mr. EVANS (Weber). Does the chair rule me out of order?

The CHAIRMAN. The chair rules you out of order on that line. The question is, shall the decision of the chair be sustained on the point of order of Mr. Varian?

The question was then taken and the decision of the chair was sustained.

The CHAIRMAN. The question is now upon the point of order raised by Mr. Evans. Are you ready for the question upon that point?

Mr. VARIAN. That has been decided. You overruled his point of order.

The CHAIRMAN. All right.

Section 4 is still open for consideration.

Mr. BUYS. In the sixth line, I move to insert after the word “required,” in the sixth line, as a qualification, “No religious test shall be required as a qualification for any office of public trust or for any vote, at any election.” And I think that is necessary to complete the meaning of this clause. It is a qualification to hold office that we are speaking of. No religious test shall be required as a qualification for any person to hold office, and I think the other is a proper amendment to that section.

Mr. JOLLEY. How will that read then? In view of the amendment made yesterday striking ont the words, “property qualification.”

Mr. BUYS. The words were stricken out, “or property qualification;” it read then, no religious test or property qualification shall be required for any office of public trust or for any vote at any election. Now, “property qualification,” was stricken out yesterday and it will read with my amendment now, “no religious test shall be required as a qualification for any office of public trust.”

Mr. VARIAN. I again call the gentleman to order. In another way he is attempting to revive the executed judgment of this Convention. He cannot be permitted to do it. We never would conclude if that can be done. He raises the same point of order that was ruled out and is making it again.

The CHAIRMAN. To facilitate business, the chair decides it is not well taken.

Mr. EVANS (Weber). I appeal from the decision of the chair. I desire to be heard. I now read from page 45 of Roberts' rules of order.                            

Mr. VARIAN. The gentleman must be confined to the question.

Mr. EVANS (Weber). I am going to confine myself to the question.

Mr. VARIAN. The question, if the chair please is this_

Mr. EVANS (Weber). I move to a point of order; Mr. Varian is not in order.

The CHAIRMAN. Mr. Varian rises to a point of order. The gentleman from Weber will take his seat.

Mr. VARIAN. The gentleman is not speaking to the question before the house. It is simply upon this former ruling of the chair. It is simply upon {250} this appeal from the ruling of the chair, which is based upon this fact: That no point of order was made, first, until the judgment of the Convention had been executed. Second, he is making a point of order now after the whole matter raised upon the first point of order was decided, and is going back to that. He is reciting and re affirming the same proposition.

Now, it is utterly unimportant as to what the merits of his proposition might be. It might be important if he got it in in time. The question here is whether the chair was right in ruling that the point of order, however good it might be, should rule.

The CHAIRMAN. I decide the point of order well taken by Mr. Varian. You will confine yourself to the discussion that is before the house.

Mr. EVANS (Weber), May I arise to a point of personal privilege?

The CHAIRMAN. Yes, sir.

Mr. EVANS (Weber). It seems to me that I ought to be permitted at least to state my reasons for

this appeal. If the house does not sustain the chair, of course my point is not well taken. But I never have yet upon the floor of this Convention been permitted to say one word to a conclusion upon the questions which I have raised. I have been trodden upon and oppressed by the majority, simply because they have a right and have the strength to do it. All I ask now is the right to_

The CHAIRMAN. The gentleman must confine himself to the question.

Mr. EVANS (Weber). May I proceed to do that?

The CHAIRMAN. If you proceed to do that, yes.

Mr. EVANS (Weber). The question which I desire to state is this: Mr. Varian made a motion to lay an amendment to section 4 upon the table, it was carried. Then an amendment was made by the gentleman from Wasatch County to section 4, and I then made the point of order that section 4 could not be considered under the rules. To that question Mr. Varian rises to a point of order and the chair sustained him. I appeal from the decision of the chair and I now desire to state my appeal, so that the house may intelligently vote upon it, that is all I ask, and nothing else. May I be permitted?

The CHAIRMAN. Go ahead.

Mr. EVANS (Weber). I desire to state that we have a precedent for this matter, not only in the rules, but one which came from the gentleman from Salt Lake himself. At the time when the report of the committee on printing came before the Convention a portion of it was read and upon motion of Mr. Varian it was laid upon the table. He then declared that that laid the whole subject matter upon the table, and he was sustained by the Convention. Then the Convention had seen that a mistake was made_that the intention was not to lay it all upon the table; he moved a reconsideration of the vote by which it was laid upon the table, and the Convention again took it up. Now, this question was to the exact point. We have adopted Roberts' rules of order, which expressly state that that is the mode of procedure. Mr. Varian was right then. Now, in Roberts' rules of order it provides on page 45, the effect of a motion of that kind is generally to place on the table everything that adheres to the subject, so that if an amendment be adopted to lay on the table, the subject itself goes there with it. I was proceeding to try to read from page 45 of Roberts' rules of order_I don't like to say it again, for I fear I might be called to order. Now, Mr. Chairman, in all good will to the chairman and to the gentleman on the other side of the house, I submit if I am not right, upon this position. Mr. Varian was right when he made the same point and we all conceded he was right.

The CHAIRMAN. The motion stands like this: The gentleman from Wasatch offers an amendment to section 4. Mr. {251} Evans of Weber raises the point of order that section 4 lies upon the table, because an amendment which was offered was laid upon the table and carried section 4 with it. The chair ruled that the amendment did not carry section 4 on the table. The question comes now whether the decision of the chair shall be sustained.

Mr. THURMAN. I desire to say just one word in reply to Mr. Varian, on one point, which Mr.

Buys did not touch. Mr. Varian made the point that this was an indirect way of trying to reconsider a point already ruled upon by the chair. Now, I only wish to call the attention of the Convention to this fact, that the new point may be raised every time there is a new proposition presented. Since the chair ruled upon the question referred to by the gentleman from Salt Lake, the gentleman from Wasatch proposed another amendment, so it is not an indirect way of getting at the question at all. It is simply raising it for the first time upon a question presented to this Convention for consideration. So far as that is concerned in other respects, it seems to me the gentleman from Weber is right in his position.

Mr. VARIAN. Perhaps I misunderstand the situation. I understood Mr. Evans raised his point of order after the Convention had tabled the amendment_after the decision had been made.

The CHAIRMAN. That is his first point of order.

Mr. VARIAN. And I had in mind he was renewing that same point of order in another way and was not considering the question at all_that is the effect of laying the amendment on the table. I called Mr. Evans to order upon that question. I do not understand that I presented any other question, any other point of order. It was simply that he had raised the point of order when it was too late.

The CHAIRMAN. The reason the chair has made this ruling is, if Roberts' rules of order apply to the committee of the whole no motion to lay on the table would be proper at all. Now, the committee have decided for that reason that only the proposition of Mr. Buys of Wasatch will go the table, and not the whole section.

Mr. HART. I did not understand we passed upon the question that a motion to lay on the table was in order in a committee of the whole. We simply permitted it. I understand that question had not been raised. Roberts' rules of order, so far as they are applicable to the matter, are certainly in force in a. committee of the whole the same as in the Convention. Of course there are some provisions which are not applicable to the committee of the whole. While I am on my feet, I desire to understand the question before the house. I understood the question to be that we voted on and the one upon which I voted to sustain the chair was that the point of order was not properly raised. As I understand it, this is the first time this question has been before the house. As to whether an amendment, if laid on the table, takes with it the main proposition. On that proposition I shall have to vote in the negative. My reason for voting in the affirmative before was, I thought the point of order made by Mr. Varian was that the point of order
raised before was not raised at the proper time.

Mr. VARIAN. Does the chair rule upon the motion that the amendment going to the table did not carry the section?

The CHAIRMAN. That was the ruling of the chair, and I stated when I made it, it was to facilitate business. I would like to cut off some of these points of order business. Shall the decision of the chair be sustained?

The CHAIRMAN. Section 4 then lies upon the table.
{252}
Mr. THORESON. I move that we take section 4 from the table.

No second.

The secretary then read section 5, as follows:

Section 5. The privilege of the writ of habeas corpus shall not be suspended, unless, when in case of rebellion or invasion, the public safety imperatively demands it.

Mr. VARIAN. That will have to be done by reconsidering the vote. I hope that will not prevail, It is taking from the table these amendments, and we would be in the situation that we were a few minutes ago. My friend, Mr. Eldredge, desires to have this amendment lie over a sufficient length of time, in order to give the members an opportunity of considering it, and it will doubtless be printed and published to-morrow and it can be taken from the table then and also these amendments, to be considered.

Mr. EVANS (Utah). May I be permitted to give the reasons for the motion? When it is desired to take up the question, a motion is made either to take the question from the table, or to now consider such and such a matter. I simply wanted to put myself right.

Mr. CORAY. I hope we will vote this question down, so we may proceed to attend to the work before this committee. It seems to me there can be no possible objection raised to having the question brought before the house tomorrow.

Mr. EVANS (Utah). By permission, and with that view, I am perfectly willing to withdraw the motion.

The CHAIRMAN. If there is no objection, the motion to take section 4 from the table will be withdrawn.

The secretary again read section 5.

Mr. BUYS. To section 5, I move to amend it by striking out the words
“imperatively demands it,” on the third and fourth lines, and inserting in lieu thereof, “may require its suspension.”

Mr. EVANS (Weber). I move an amendment to that amendment, that the word, “imperative” be stricken out: It is an unusual word there. It is not found in the other constitutions.

The question was then taken on the amendment of Mr. Evans and the same was agreed to.

Mr. VARIAN. I have not examined the subject of the several constitutions of the states in reference to this particular thing. I would like to ask the chairman of the committee who reported this, whether the word “war” was intentionally omitted from the third line of this section? Its provision is in case of rebellion or invasion. My impression was it was usual to include the word war.

Mr. WELLS. I have not seen it in any of the constitutions I have examined, and I have before me Montana, Idaho, Washington and other states, and it is just the same as this. In case of rebellion or invasion. I have never seen the word war in that connection.

Mr. MALONEY. I wish to amend section 5 by adding “in such manner as shall be prescribed by law.”

Mr. VARIAN. I do not think that amendment ought to prevail. That is, unless there is some reason for it that does not occur to us now. The writ of habeas corpus is an extraordinary matter. It only ceases in times of danger and public peril. It is only permissible at all when the public safety requires it. It is an extraordinary invasion or, perhaps, I might say suspension of the rights of the citizens which are made to yield, because of the exigencies of the occasion, for the good of the whole people. Now, this amendment, as I understand it, will contemplate the Legislature in advance seeking out and prescribing the conditions and the limitations surrounding and restricting the {253} exercise of this writ. Its efficacy would be certainly impaired if not done away with. Why cannot it be safely left to such occasions and to be exercised in accordance with the general precedent and history of its exercise in this country? As I said before, unless there is some reason, I cannot see why this should prevail.

Mr. MALONEY. The section is taken literally from the Idaho statute. The privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion, or, unless the public safety requires it, and then only in such manner as shall be prescribed by law. By what Mr. Varian says, the Legislature ought to prescribe by law how the writ of habeas corpus shall be suspended. That is all I ask.

Mr. EICHNOR. I will state to the gentleman from Weber County, that I have examined the provisions in forty-four constitutions and the majority of the states do not require the Legislature to make the provision. As the section has been amended, it is in strict accordance with the provisions in Washington, Wyoming, California, and many other states. I think the section ought to stand as amended. I think the amendment offered by the gentleman from Weber County should not prevail under any circumstances.

Mr. VARIAN. I question the accuracy of the gentleman from Weber County in the statement that it is in nearly all the constitutions. It certainly is not in the Constitution of the United States. It is not in the constitution of the State of New York.

Mr. THURMAN. I favor the amendment. I think it ought to be made the duty of the Legislature to determine by law in what manner and by whom the suspension of this extraordinary privilege shall be made. Who is to determine it now? Take it without law? We have the declaration here that it shall not be suspended except in case of rebellion or invasion. When the public safety requires it. Who determines that condition? A time and under circumstances in which the citizen may be deprived of his liberty and there is no redress. It is an extraordinary thing to deprive an American citizen of his rights to demand by what authority he is detained in prison, and I say that it is a right that ought to be regulated by law. Let the Legislature in time of peace determine how this deprivation of this privilege may take place, and how it may be done. It is not a convincing argument to my mind the fact that some other constitutions may not have this provision. We are legislating or framing fundamental law for the people of Utah. If every time we have the question of the rightfulness of your incarceration determined, it is a matter we can regulate by law and then the citizen will know and will understand under what circumstances this extraordinary writ or power to deprive him of his liberty without that particular redress can exist. I am in favor of it.

Mr. VAN HORNE. It seems to me that the amendment should not prevail. We provide only two instances in our Constitution under which the writ of habeas corpus may be suspended. Those two are rebellion and invasion. It is well known, it could not escape {254} the notice of anybody, or any person in the city or State when there was rebellion, or when the State was being invaded by foreign enemies. The object of providing that in those two cases the writ of habeas corpus may suspend, is that those may be imprisoned who are secretly giving aid and comfort to the enemy. The reason for it is the safety of the State. The safety of the people also. If we put in a provision that the Legislature shall provide in what way and in what manner the writ of habeas corpus may be suspended, the action of that Legislature will limit the suspension of the writ in all other cases than those specified by the Legislature. It destroys the whole object of the suspension of the writ of habeas corpus by specifying special cases and leaving nothing open to the authorities of the State when a case arises that is not within the special laws of the Legislature. The object is the perpetuation of the State, the maintenance of its local government. We trust something to the people and to the men whom the people put in charge of the State. It is the genius of our country that when the people have chosen their officers they lay them under the duty of protecting the public welfare and entrust in their hands in the two special instances of invasion and rebellion the power to suspend the writ. That is right in every case, a right of freemen; it is done for the welfare and safety of the State and that welfare and safety is endangered when you leave it to the Legislature to fix certain cases only in which the writ of habeas corpus may be suspended, and leave open possibilities of the enemies of the State who are still citizens of the State in rebellion to the same; that it is not one of the cases that the Legislature has provided for, and consequently you cannot suspend it in this case.

Mr. VAN HORNE. Yes, sir.

Mr. THURMAN. Who did you understand has the right to suspend the use of this writ?

Mr. VAN HORNE. I understand the executive department suspends it. It usually precedes the declaration of martial law.

Mr. THURMAN. One further suggestion to explain my question. If it is still provided here that the Legislature may not suspend it except in certain cases, I am willing to vote for it, without the amendment of the gentleman, but if the executive may do it, or if the judiciary may refuse to act when it appears to them there is a case of rebellion or invasion, I am opposed to such a power being exercised.

Mr. VAN HORNE. I think I said all that I care to say. I think still the amendment is one that is against the genius of our institutions. I think the executive of the State, when, if it comes necessary in case of invasion or rebellion, has the power entrusted in his hands to suspend it and it is the genius of our institutions to entrust in his hands the temporary suspension of that right.

Mr. EVANS (Weber). I am opposed to the amendment and I desire to call attention to the provision in that respect in the Constitution of the United States, “The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion public safety may require it.”

This section, which the committee has recommended, is in the exact language of the Constitution of the United States with the exception of “demands it,” instead of “requires it.” The word imperatively having been stricken out, the section now stands without the amendment just as it ought to stand and just as many of the states of the United States have adopted it. I cannot share in the opinion of my friend from Utah County upon this question and use of the writ of habeas corpus to the extent {255} to which he carries it. It is quite true that this principle is one of the jewels taken from the casket of liberty, wrung from tyrannical old John at Runnymede, but when that principle was secured by barons upon that battlefield, it was not only for the safety of the individual, but it was also applied and became necessary for the safety of the state, as well as the individual. When the individual rebels against the state, or in case of invasion, he ought not, under those circumstances, to have the same right that he has when he is loyal to the state, and in those exciting moments when conspiracies might be formed, at times when rebellion may be rife, this high prerogative secured and handed down to us through posterities and ages should only be given in times when there is peace and quiet and not in times when there is invasion, rebellion, or conspiracies, but only at such times as when the public safety may require a suspension of the writ should it be suspended. Now, gentlemen of the committee, suppose we were to have rebellion in the State; suppose it should be determined that some people were conspiring against the interest of the State? Suppose war were rife? Suppose it were utterly impossible for the authorities of the State to determine what would be the result and support, the public safety required that this high prerogative should not be exercised upon the part of the citizen? Then,

under such circumstances it ought to be taken away. But not in time of peace when those conditions of things do not exist. Then it is one of the highest prerogatives and one of the highest rights which the individual citizen may have.

In times of war, in times of public danger, when the government itself is struggling for its supremacy, it becomes necessary to take away this high prerogative from the individual and it ought to have that right; it ought to have that authority. It has it by the Constitution of the United States, one of the grandest ever drawn or adopted. It has it by a majority, in fact nearly all of the constitutions of the Union. It is not necessary that the Legislature should prescribe the method by which this writ should be suspended. They may do it, I believe, under this section, that the Legislature in times of peace might prescribe a method by which this right should be suspended and in this time of danger it might be considered inadequate upon the part of the Legislature. New amendments or provisions might be necessary to be obtained and the Legislature could not be convened for that purpose. This is not a mere experiment. It has been tried by so many states and by the great government of which we are a part; to make the amendment would be an innovation upon other constitutions or a majority of them all, at least which have been adopted by the states of the Union. I therefore do not support the amendment.

Mr. GOODWIN. Mr. Chairman, this is supposed to be a perfectly free country, but this country has a nucleus at least of an army and all the rules that govern that army make them simply an imperial machine as strong as any in the world could make It. When, in times of great peril, it is necessary for the chief officers of the state to use their best judgment, they being under oath, the men entrusted by the people of the state to protect and defend that state, when war comes or invasion, there are then times when these men in that position cannot afford to explain why they act. It would excite unnecessary fear among the people or it would give unnecessary notice. It is for that reason that all the laws of this country through all the constitutions of the states, have reached that point where they in fact say there may be times when those in charge of the state must for the safety of the state use absolutely their own judgment. They must use their judgment, and it is for that purpose that {256} this provision is made and to add to it simply neutralizes the intention of the preamble. Some of us are old enough to remember that when for four years through all of the northern states, and for all I know through the southern states, there was a great class of newspapers who declared the governors of the states usurpers, and the courts as executing laws in a way never intended by the Constitution. Now, the position of my friend from Ogden would fix this State in the same way. The Legislature would put in some clause, and then, if it was necessary to suspend this writ, it should be done arbitrarily as it always is. There would be a low class of men sympathizers with the men in rebellion who would be declaring that the governor was a usurper, and that we might just as well be given over absolutely into the hands of some pirate.

The object of this is to give those in authority the use of their best judgment, and if the emergency is grave enough, not to be forced to give any reason for their acts. That is an imperial government or military government for the time being. The article is all right as it is. There is no occasion for the coming statesmen of this Territory to fix on the statute what will be in the way of governors and others who may have charge of this State by and by in case there is an invasion or rebellion here. We elect men to office; they take the oath; if we do not elect the best men it is

our mistake. When they are in that position, their best judgment sometimes has to be used. That is in time of great danger. The gentlemen who formed the Constitution of the United States had been through very trying times for a good many years. They fixed it and considered it sufficient. Without being at all sarcastic, I do not believe we, as a body, can, without at least a day's consideration, improve on that original instrument. I oppose the amendment.

Mr. MALONEY. If Mr. Van Horne's idea is correct, then I hold no imperial or any power of that kind should be placed in the hands of the governor of Utah or any other state. If the right is to be left to the Legislature then I withdraw the amendment, but I do not believe in centralizing power in the hands of any one man. Now, I regret to hear my friend from Weber talk so. I supposed he was lawyer enough to know that the writ of habeas corpus provided for in the Federal Constitution was not in any way applicable to the state authorities. In reply to my friend from Salt Lake, Mr. Varian, in regard to the provisions in the various constitutions of the various states, I shall simply call attention to a few of them that have it in them. Connecticut for instance; there the legislature has the power, and I would not object to leaving it that way. Georgia has it; Michigan has it also; Massachusetts has it also; Missouri has it also; Nebraska has it also; North Carolina has the same provision; Rhode Island has it. I might go on and cite some others. I submit, gentlemen, that this amendment is proper and right, and I submit that it ought to carry.

Mr. ROBERTS. I think that we are all agreed upon the proposition that the suspension of the writ of habeas corpus is perhaps the highest power conferred upon the governor, and is more likely to interfere with individual liberty, and that it is susceptible of very grave abuses. Those considerations convey to my mind the conviction that above all power this is one which ought to be most carefully guarded by the provisions of the law. If I have got the spirit or genius of the American government, its first consideration is to preserve the liberty of the individual and guard against the abuse of power, and I can see no objection, after listening to all the gentlemen have said upon this proposition, to conferring or guarding the exercise of this very high power of suspending the writ of habeas corpus {257} by the provisions of the law, and I certainly do not believe in granting to the officers of the government arbitrary powers unless you shall very carefully guard against the abuse of those powers. And I think, above all provisions in these constitutions, that the exercise of this power should be guarded by regulations of law and not leave it to moments of peril and excitement to determine under what circumstances this writ shall be suspended, but, in cool judgment, and when men may be governed by reason and not by passion, fix the limitations of their power, and for that reason, I favor the amendment that has been offered by the gentleman from Weber.

The question was then taken on the amendment and the same was rejected.

Mr. WHITNEY. I have a slight amendment to offer to the same section in line 2 of section 5; the word “when” seems to be unnecessary. I move it be stricken out as surplusage, so it shall read, “shall not be suspended unless in case of rebellion or invasion or the public safety demands it.”

The question was taken on the amendment of Mr. Whitney and same was agreed to.

Mr. EVANS (Weber). I now move to strike out the words, “demands it,” and insert in lieu

thereof “requires it.” I just want to say that is the exact language of the Constitution of the United States and this might be considered in a different way. The words, “requires it” have a well understood meaning by the construction of the courts. Now, it may be considered differently if we use the words “demands it,” because it might be that there should be some demand made upon the authorities whenever the public safety requires it. For that reason, I think it would be better to use the usual language.

The question was taken upon the amendment of Mr. Evans, and same was agreed to.

Mr. BUTTON. I move that this section pass.

The CHAIRMAN. That is not necessary.

The secretary then read section 6, which was adopted without amendment.

The secretary read section 7 as follows; [*note*]

Section 7. No person shall be deprived of life, liberty, or property, or be outlawed or exiled without due process of law.

Seconded.

Mr. WELLS. I will state that that clause was copied from one of the constitutions, I don't remember which, but I think it is covered in the liberty clause, and I have no objection to it being stricken out.

The question was taken on the amendment to strike out and was agreed to.

The secretary then read section 8, which was agreed to without amendment.

The secretary read section 9 as follows:

Section 9. Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishment be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor.

Mr. WELLS. The object to protect persons in jail if they shall be treated inhumanely while they

are in prison.

Mr. THURMAN. I would like to ask {258} the chairman of that committee if this is copied from any other constitution?

Mr. WELLS. I will answer the gentleman that I don't think it is, in that language, but there are plenty of provisions in regard to the humane treatment of prisoners.

Mr. THURMAN. I don't think we ought to adopt this unless it is copied from some other constitution; for that reason I shall favor the motion to strike out.

The motion to strike out was agreed to.

The secretary then read section 10 as follows:

Sec. 10. The right of trial by jury shall remain inviolate, but the Legislature may provide for a jury of any number less than twelve, in courts not of record, and for a verdict by nine or more jurors on civil cases in any court of record and for waiving the jury in civil cases where the consent of the parties interested is given thereto in open court.

Our jury system in this Territory costs us somewhere in the neighborhood of about forty-five thousand dollars per annum. I think that expense can be very materially lessened, and at the same time, that the efficiency of the jury system shall not be impaired. Why is it, I may ask you, gentlemen, we retained in the trial of our civil cases twelve men in courts of record? Can any gentleman give you any reason for {259} it? Doubtless there will be many reasons given, but let me ask you this one question, if you or I, or any of our neighbors or friends were to take it upon themselves to refer their matters of contentions to some board of arbitration, how many men are usually selected? Scarcely ever more than three, many times one, but when it comes to the question of juries sitting in court we cling to the old idea that we ought to have twelve. The public pays the expense anyway, and we all like to have twelve men sit in judgment upon our matters of civil differences. The idea of the committee, I think, will be that in civil cases a jury of nine will be sufficient, any six of whom may render a verdict. If this amendment, which I have proposed, be adopted, then such an article would be in order in the judiciary article; otherwise it would have no place in it. If we succeed in reducing the number of the jurors in civil cases, we thereby save one-quarter of the expense which we have heretofore had, and wouldn't it be just as well to do that, if the efficiency of the service would not be impaired? In other words, gentlemen, can any sufficient reason be advanced why nine men cannot sit in judgment upon our civil differences and determine as correctly our rights as twelve men can do it? I believe that you will all agree that the majority of the jury may render a verdict, because, in my opinion, it is nothing more nor less than absolute barbarism to require nine or twelve men to arrive at a unanimity of opinion upon any particular question. Even when they are required to do it, in our present system, a time-honored system we have had for so many years, we know that a few strong-minded, intelligent men upon a jury control the balance of them, and the verdict after all is but the verdict of a few jurors. I think that has been the experience of every man. Another idea I have with respect to this jury system, requiring a majority verdict in courts of record, which I think will be agreed to, and that is that the opportunity for corruption in our judicial system is largely removed. In a unanimity verdict, where all jurors are required to find the same, some unscrupulous client or attorney or some one interested in the cause might secure quietly the attention of one of the jurors; if so, the trial might be continued for weeks. Its importance might be such that such time would be required and that in the end, this individual, whose services have been secured, makes it so that the entire expense of a re-trial is necessary and incurred. On the question of the trial of a person accused of crime, I see no sufficient reason so far as I am individually concerned, why there should not always be a less number than twelve. I am in favor of that only. I believe with that kind of a jury there ought to be a unanimous verdict, because the liberty of the individual is so sacred and ought to have so many safeguards placed around it; then, when there is required to be a unanimous verdict, the jury will stop and think and inquire into every particular and circumstance surrounding this. But I see no reason why in the trial of ordinary criminal cases, there might not be a jury of nine, as well as in civil cases, with a unanimous verdict, except possibly in the case where the punishment might be capital. A case so grave as that, some provision might be made why the time-honored system of the jury might be unchanged. I introduce this amendment, so it will raise these questions, and I doubt not but that it will be discussed with calm deliberation, but for the best interest of the new State, and also from a point of economy, if the service can be retained the same. I hope it will be carried.

Mr. VARIAN. I wish to offer an amendment to that amendment by striking out, commencing in

line 2 of the substitute, the words, “a jury of any {260} number less than twelve,” and for a majority of verdict in civil cases and to insert “a verdict by nine or more in civil cases in any court of record.” I move the adoption of that amendment, if some gentleman will second it.

Seconded.

Mr. THURMAN. Will the gentleman from Salt Lake have it read as it will read?

Mr. VARIAN. I will. If it shall be carried as amended it will read in this wise. “The right of trial by jury shall remain inviolate, but the Legislature may provide for a verdict of nine or more in civil cases in any court of record.” Now, I call the attention of the committee to the fact that there are several propositions in the section as reported by the committee on preamble, which are unnecessary. First, the provision that the Legislature may provide for a jury of any number less than twelve in courts not of record. There is no need of that provision being in the Constitution. It is a matter of settled law under all the constitutions that they can provide for a jury of six, or two, or ten, in courts not of record, under constitutional provisions similar to those provided. The right of appeal exists and the trial on appeal can be had. Neither is it necessary to provide for the waiving of jury in civil cases. That is a matter that has been determined and become the settled law of the land. The Constitution of the United States_I was going to say_from the time the judiciary act of 1792 went into force, it goes as without saying in all federal courts where the constitutional provision is ever strict requiring a jury of twelve, and a unanimous verdict, in both civil and criminal cases, a stipulation by the parties in open court always does away with the constitutional requirements; that is, you say upon the theory that it may be waived, as being for their benefit, of course that is not necessary to declare in this Constitution, which is designed to be only a limitation upon the power of the Legislature. What is the purpose or use of interpolating in every section after section the matter that will exist or be recognized, whether it is there or not.

But, on the motion principally involved in this amendment I have a decided opinion. I do not believe that the jury system is a work of barbarism in any sense. I believe it has been a part of the bulwark of human liberty from the days in which our English forefathers battled for human rights down to the present time.

It is the only branch of the judicial system which is in touch with the people. It is the only voice that the people have in the administration of justice; it is the only security that the common people have. It is the jury drawn from the body of the people, who, in times past, have stood out against the aggressiveness of courts and executive, in the defense of liberty, and for the protection of human rights. In that view, I would not vote to reduce the jury by one man in criminal cases; never. In civil cases I shall never vote to reduce the number of the panel by one man.

I am willing to concede in my own mind, in accordance with the experience and history of modern times, that it is in aid of justice that in civil cases nine of the jurors may be permitted to find a verdict. They still have the benefit of the argument, and the contention and division of those who do not agree with them. The jury, as a jury, is still there as a whole jury, representing

the people in the jury box. I fear, Mr. Chairman, that this tendency in the last few years towards the abolishment of the entire jury system comes from certain influences; from certain quarters, which are in the nature of things antagonistic to the rights of the people.

The tendency in modern times is in all of the great litigation involving vast corporate interests; involving vast capital; and sometimes that money carries them before the tribunal of the judge_ {261} a single judge sitting as a tribunal. I have no objection to that, if they care to do it by their own consent_the consent of both parties where their interests are conflicting, and they are fighting, and the contest is between them. If they choose to do that, and waive the constitutional privilege, it is their right, but I would not put a word either in the Constitution or upon the statute book that in any degree would impair the efficiency of the jury system, against the will of a single citizen of the commonwealth when he is brought into court there, either as a plaintiff or as a defendant, that he be given the right which his father had and their fathers before him, to demand under the Constitution the right that he has that his claim should be decided by twelve men coming from his own people; in touch with humanity, and representing its thought, and that he should be given all the protection that he ought to have. It is in that view that I present this amendment. I want the trial by jury to remain inviolate. You may do away with your grand jurors if you please. You may reduce them in numbers. You may give the prosecution of criminal cases to magistrates, or to district attorneys, but when you come to a trial jury, that last safeguard, that last barrier, that has always stood and always will, I believe, between the people and oppression, whether of executive power or corporate wealth; I say, when we come to that, we should act slowly, and wait, I think, long before we invade in the slightest degree or particular. We are consuming so much time that we can do no more than to allude in passing these various questions, making suggestions. There are a good many of the people here who have a right to talk. I could not pursue this argument as I would like to do. I can only say that this matter should not be hastily passed upon, but I hope that it will be duly considered by this Convention, and that this amendment may find favor with the members of this body.

Mr. GOODWIN. I would like to offer a substitute for both amendments, to strike out all after the word “provide” in line second, and substitute the following: “In all civil cases for a jury of nine or less, two-thirds of whom may find a verdict,” I wish to say to the house a few words. It is a question that I have thought over a good deal. I never saw a gentleman when he wanted to plead his case go and pick out twelve men. I do not believe they would have ever have thought of thinking of it if it had not been established away back. I do not think you, Mr. Chairman, or any other gentleman here, would care to have more than five men decide a case for you; but the main object is to save expense to the State. If the gentlemen read the report of District Attorney Judd, published in the papers two or three days ago, they will get an idea how burdensome the jury system has been on the Territory, and how burdensome it will be in the new State. We have had that matter under consideration. We have thought in all civil cases, if the jury was honest, that nine men would be just as good as twelve. If they were dishonest there is no occasion to compel either the plaintiff or defendant to purchase over nine of them. I have great reverence for the system. It was founded at a time when the people had very few rights and when those in power were very arbitrary. It was founded at a time when there were not many free schools in the country, and it is venerable with age and deserves the same respect that a broken-down old wall covered with ivy demands. At the same time, what we want in the framing of the Constitution of

this new State, is to do exact justice by the people, if we can, and do it at the least possible expense.

Taking that view, the committee believe that in the most important civil {262} cases, nine jurors would give a cause just as deliberate and careful attention as twelve, and it would be better not to bind the jury to all agree to what the majority thought, but to give them some free exercise of their minds and their judgment all around, and to let the majority find a verdict, and that is more in accord with the genius of our country and our institutions, because majorities rule; they rule in the election of officers; they rule all the world over. There is no reason on earth why the the same principle should not apply in the jury system. The chief object, however, over all is, without reducing in the slightest the protection upon the citizen, it will save the expense of a great host of jurors to the State.

Mr. ROBERTS. This is a question, it seems to me, of very great importance and it is one upon which I have some very decided views. But we are now in position that I don't think we can intelligently discuss the amendment that we have here before us. We have here, first, the section_section 10, and it appears in print. There are three amendments proposed to this section and I move that the further consideration of this section be postponed until the next meeting of this committee, and that in the meantime the propositions that have been presented for amendment be printed and furnished to the members so that we may discuss it intelligently and be able to arrive at a proper conclusion.

Seconded.

Mr. IVINS. I would like to ask the gentleman from Salt Lake, if he will include in his motion any other amendment that might be proposed?

Mr. ROBERTS. That we postpone it? I am willing to withdraw this if any gentleman has a further amendment to propose. Of course, I realize it would be out of order, but in the form

I suggest I think the committee might receive it.

Mr. VARIAN. I offer an amendment to his substitute.

The CHAIRMAN. Mr. Goodwin offers an amendment to the original article as printed.

Mr. VAN HORNE. I would like to ask a question for information, from Mr. Varian. I understood this amendment included to strike out waiving a jury by consent of parties?

Mr. VARIAN. I simply called attention to that because if left my amendment, if adopted with the other portion of Mr. Evans' substitute, would leave out this provision, found in the original section as reported by the committee.

Mr. THURMAN. I would like to ask the gentleman a question for information, whether or not the effect of the amendment that he proposes is not merely to require a jury of twelve in all cases,

but a unanimous verdict in criminal cases and a verdict of nine or more in civil cases?

Mr. VARIAN. Yes, sir; I so understand it. If the section stopped in the first line that would be considered to mean a jury of twelve and require a unanimous verdict. It is not neeessary to provide for a unanimous verdict in criminal cases. That would be so only when expressly provided otherwise.

The question was then taken on the motion of Mr. Roberts to postpone, and the same was agreed to.

The committee of the whole then rose and reported as follows:

Mr. President, your committee of the whole have had under consideration the preamble and declaration of rights, and beg to report progress, and recommend that the pending amendments to sections 4 and 10 be printed.

The report was adopted.

The Convention then, at 5 o'clock p. m., adjourned.