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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.

{263 - MOTIONS}


FRIDAY, March 22, 1895.

The Convention was called to order at 2 o'clock p. m. by President Smith.

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

Evans, Utah

Kimball, Salt Lake
Larson, L.
Larson, C. P.
Lemmon Lewis
Low, William
Low, Peter
Low, Cache
Murdock, Beaver
Murdock, Wasatch
Murdock, Summit
Peterson, Grand
Peterson, Sanpete
Robinson, Kane
Robison, Wayne
Van Horne
Mr. President.

Mr. MURDOCK (Beaver). Mr. President, Mr. Coray wished to be excused; he was obliged to be away.

Prayer was offered by Rev. Joseph McClain, of the Presbyterian Church.

The journal of the eighteenth day's session was read and approved.

Mr. Call then presented a petition, signed by 1875 citizens of Davis County, praying for the adoption of the first article of the committee report on elections and right of suffrage.

Mr. Bowdle presented a petition, signed by 250 citizens of Salt Lake County, for the submission to the legal voters at the same election at which the proposed Constitution is submitted, an article on prohibition.

Referred to committee on manufactures and commerce.

Mr. BUYS. Mr. President, under the ruling of the chair the other day, this is not the proper place to introduce that resolution. It is a resolution or proposition for insertion in the Constitution. It is exactly the same thing that was presented from Wasatch County and it was ruled that day that it should come in under the head of propositions for insertion in the Constitution.

Mr. BOWDLE. Mr. President, that is not a proposed article for the Constitution; it is simply a memorial, as I understand it. I have not read it over.

Mr. BUYS. Mr. President, it is the same article that was presented the other day from the citizens of Wasatch County, and under the rule that time it was laid over to come up under the head of propositions and the next day the presentation of it under this order of business, was stricken from the minutes.

The PRESIDENT. I think it will have to be ruled out to come in under propositions. It is a proposition for legislation.
Mr. IVINS. Mr. President, I do not wish to detain this Convention with unnecessary questions, but I do maintain that this petition which has just been introduced, signed by a large number of citizens of this city or county, or a petition coming in that form from the citizens of any other

county, is a petition. They petition and ask that we take such action as will result in the insertion of an article similar to this in the Constitution. I claimed the other day, and I claim now, that this is a petition, and this is the proper time to dispose of it. A proposition for insertion in the Constitution comes from some member of this Convention, and it comes in the form of a petition which the citizens of this Territory have a right to make. They may petition for any action and this properly comes under the order of business we are now considering.

The PRESIDENT. There is nothing before the house. The chair has ruled on that.

Reports of standing committees.

Mr. CHIDESTER. Mr. President, the committee on elections and rights of suffrage have a report. If it is proper at this stage of the proceedings, I would ask to have that made a special order for Tuesday next.

Mr. KIESEL. Mr. President, I move that this report be not received just now, until the minority report is ready. This is the report of elections and right of suffrage, is it not?

Mr. CHIDESTER. Yes, sir.

Mr. KIESEL. Under the rule he will have to wait until the minority report is ready.

Mr. CHIDESTER. I desire to state that a minority report will be presented and in my opinion that will give them ample time to prepare their minority report, and I would like to have it made a special order for Tuesday next at 2 o'clock p. m.

Mr. KIESEL. Mr. President, the gentleman is out of order. I made a point of order. My point of order is this: that if we give notice that there will be a minority report, the majority report cannot be acted upon. I believe that was the rule.

Mr. ROBERTS. Have you given such notice to the committee?

Mr. KIESEL. I have given that notice to the committee.

Mr. THURMAN. Mr. President, I do not know whether the suggestion advanced by the gentleman from Weber is in order or will be entertained or not, but I trust not. The committee_a majority of them_are here with their report. If the minority of that committee who have known all the time everything that the majority have done and propose to do, are not ready with their report, that is their fault. We want this report read to-day. I want this made a special order as quickly as the business of this house will permit, and the matter disposed of. This minority may never report for all we know. They are not bound to.

Mr. VARIAN. Mr. President, under the rules, the report of the committee is referred, first, of course, to the committee of the whole. I do not understand that this Convention as such will undertake to regulate the sitting of that committee.

But there is still another proposition underlying. It does seem that it would be a matter of grave discourtesy to the members of any committee, who have not been able to express their views in writing, on the request made not to extend that privilege, if it be a privilege, but a suggestion that there is nothing to do under the rules but to refer this report to the committee of the whole, without an order.

The PRESIDENT. There is no order necessary. It goes there under the rule.

Mr. VARIAN. Mr. President, I would like to send up a report from the committee on rules. I call attention of the chair to the fact, that I believe there is a report laid over from yesterday, {265} which, under the rules, would come up to-day.

Mr. CHIDESTER. Then I understand that to be the case, but I understand also, that this committee is not obliged to lie still and wait for a minority report; we simply ask to have this made a special order for Tuesday_if this is the proper time. I did not understand the chair's ruling upon that.

The PRESIDENT. This is the proper time. Reports of the committees are in order, and under the rule, it has gone to the committee and there is nothing before the house.

Mr. VARIAN. I understand, under the rule, it goes to the committee of the whole, and there it will be brought up again probably.

Mr. THURMAN. Mr. President, we think the report ought to be read and referred.

The report was read by the secretary as follows:

Convention Hall, Salt Lake City,

March 22, 1895.


Your committee on elections and right of suffrage, appointed to draft and present an article on that subject, to whom was referred:

File No. 1, introduced by Evans, of Weber.

File No. 2, introduced by Eichnor, of Salt Lake City.

File No. 3, introduced by Evans, of Weber.

File No. 17, introduced by Page, of Sanpete.

File No. 24, introduced by Thoreson, of Cache.

File No. 37, introduced by Strevell, of Weber.

File No. 69, introduced by Thurman, of Utah.

File No. 109, introduced by Stover, of Tooele.

And also divers memorials and petitions presented by the ladies of Weber, Utah, Juab, Wasatch, Salt Lake, and Davis counties, and the Woman Suffragists Association of Utah Territory, respectfully report that we have carefully considered all of said propositions and memorials and hereby return the same, together with a draft of an article upon the subject referred to us and recommend it as a substitute for said propositions and as the responses to the said memorials.

Your committee do not claim absolute perfection for the draft herewith presented, but state that such as the instrument is, it is an expression of the best judgment and most candid deliberation of the majority of the committee. The committee in performing their labors have endeavored to be governed and controlled by the principle that in a republican form of government every citizen of the United States of reasonable intelligence, not convicted of crimes which strike at the foundation of popular government, should be eligible to vote, and exercise in addition thereto such political privileges and honors as their fellow- citizens see fit to confer upon them, keeping in mind that taxation without representation is not only unjust but contravenes and comes in conflict with the very genius of our political institutions. The committee by this article have conferred upon women the right to vote and exercise political privileges equal with men. The difficulty with the committee in considering this subject has been to find a reason why women should not have this privilege, rather than why they should. Not being able to find any logical reason why they should not, and deeming the political discriminations heretofore existing in this respect as unreasonable and unjust, a majority of the committee strongly favor the adoption of that portion of the article which in terms establishes the political equality of the sexes; upon this subject we have adopted literally the language of the Wyoming constitution, in which state woman suffrage, after twenty-five years' experience, has been demonstrated to be a pronounced success. Upon all other portions of the article herewith presented the committee have been and are practically unanimous.

Respectfully submitted,

J. F. CHIDESTER, Chairman,












Members of the Committee.

Mr. KIESEL. Mr. President, I wish to state that the committee_that part of it which intends to bring in the minority report, has not had time to make their minority report, because this matter was only acted upon in our committee this morning a little before {266} noon. We have not had time to prepare our minority report. I venture to say that there is much to be said upon this subject, and that the conclusions that are embodied in the report are confusing to my mind. For this reason I want to bring in, together with my colleagues, a minority report, and I ask in all

fairness that we shall be given ample time. There has been a great deal of time used in other matters. I do not see why we should not have time to prepare a minority report.

Mr. VARIAN. Mr. President, I arise to a point of order. This whole matter is out of order unless you suspend these rules, and there is no rule preventing this gentleman from bringing in a minority report. There is going to be plenty of time. I don't suppose we are going to consider all of these questions in an hour or a minute.

(Reads rule 19.)

The committee has a calendar. Another rule provides that when that committee reports it goes back upon the Convention calendar for a third reading and then is the time to make special orders. I now call, under the rule, for the reading of the report of the committee on rules which went over from yesterday. It has precedence.

The PRESIDENT. The point of order of Mr. Varian is well taken.

Mr. THURMAN. Just one moment. I did not understand one thing the gentleman said, and that was, when is the proper time to make a special order?

Mr. VARIAN. Propositions are read in the Convention a first and second time and referred to the standing committee. then to the committee of the whole; after which they go on the Convention calendar for a third reading. I submit to the gentleman from Utah.

Mr. THURMAN. Mr. President, permit me to say one thing in relation to the matter.

The PRESIDENT. There is nothing before the house, gentlemen. This matter has gone to the committee.

Mr. THURMAN. Well, Mr. President, is there anything wrong in having an understanding about the matter?

The PRESIDENT. No; if there is a misunderstanding it is perfectly legitimate.

Mr. THURMAN. Of course there is a misunderstanding, or I would not ask. I want to understand the time for this reason; I want to make a special order if now is the proper time.

The PRESIDENT. It was fixed for Tuesday after we get through the regular order.

Mr. VARIAN. I did not understand that order passed the Convention.

The PRESIDENT. No; the gentleman asked that it be fixed for Tuesday directly after the regular order.

Mr. VARIAN. I did not understand that order passed the Convention.

The PRESIDENT. No, the gentlemen asked that it be fixed for Tuesday direct after the regular order.

Mr. VARIAN. Who suggested that? That was a violation of the standing rule. No motion was put and it was not carried,

The PRESIDENT. All right.

Mr. RICHARDS. Mr. President, I move that the consideration of this article may be the special order before the committee of the whole for Tuesday.

Mr. VARIAN. Mr. President, I make the point of order that it is not in order for this Convention to make special orders for the committee of the whole without suspension of the rules.

( Reads rule 21.)

There is a standing rule. There is no pressing necessity for exigency in this matter.

Mr. CHIDESTER. Mr. President, I move an amendment to the motion by suspending the rules and making it the special order for Tuesday at 2 o'clock p. m.

Mr. RICHARDS. I accept the amendment.

Mr. CANNON. Mr. President, I see no reason why we should attempt at {267} this time to make this a special order. I think we should go on with our business and when we have considered the bills that are before the committee of the whole_two bills are already there_we then would consider what time would be the most convenient to take this matter up. I am opposed to the motion for that reason.

Mr. THURMAN. Mr. President, the reason we want the matter determined now is this, that these reports will be coming in every day; as fast as they come in they take their regular place in the committee of the whole, and this matter would be crowded to the background. Now, we want it disposed of. I can speak freely on this for it is not a party question. All of us want this thing. We have agreed to have it and let us dispose of it.

Mr. ROBERTS. Mr. President, I am opposed to making this a special order for Tuesday next at this juncture. I think that if the majority of this committee making this report has any due regard for the rights of the minority of that committee, since they only concluded this morning to make that report, and have had notice served upon them that the minority desired to make a report, I think the majority are treating the minority with scant courtesy, to say the least of it, when they do not permit that minority to make its report and accompany their majority report, which could doubtless be done at an early date; and if they are so sure of their position, I think they would manifest a little more confidence in it, if they would grant this privilege asked for on the part of the minority. There seems to be unusual haste in rushing this. I understand also, sir, that the question includes not only the suspension of the rules but the fixing of this matter for Tuesday,

and I am trying to argue that part of the proposition that it ought not to be done, and this report of the majority ought not to be placed here until a reasonable time at least has been granted to the minority of that committee to make its minority report, and have these two propositions or these two reports come together and not separate them. And I take it the gentlemen manifest undue haste in refusing to grant to the minority an opportunity to make their report to stand side by side with the report of the majority. Therefore, I am opposed to the proposition.

Mr. ELDREDGE. Mr. President, I am opposed to this motion on two grounds. In the first place, I think the majority can consistently wait at the request of the minority, to give them a reasonable opportunity to present a minority report. And, secondly, there will be reports coming in from the committees perhaps each day from this on, until the committees have all reported, and I am in favor of the reports taking their turn upon the calendar just as our rules provide. They provide that every proposition shall be considered and acted upon in the committee of the whole in its order upon the calendar. This will go on to the calendar and let it come up in its turn. There is no such thing as making a delay by letting it go on the calendar, or crowding it to the wall. It simply takes its place in common with other reports. Therefore, Mr. President and gentlemen, I am opposed to the motion.

Mr. ANDERSON. Mr. President, I would like to correct an impression that seems to be had by some of the members. The only section that there is any opposition to is the first section, and this was passed upon by the committee on the second day that we met, which was nearly two weeks ago, and yesterday every section of the article that we proposed to adopt was passed upon separately, and a minority have had the last two weeks to make up a report on this section that they are opposing, and they knew that we were going to make up our report.

Mr. THURMAN. Mr. President, {268} would like to ask one question for information before the vote is taken. I would like to ask the gentleman from Weber when the minority will report?

Mr. KIESEL. We will consume a reasonable time only.

Mr. THURMAN. You cannot give the Convention any satisfaction?

Mr. KIESEL. It depends upon my colleagues. I have not had any conference because this matter was only passed this morning as I stated, and I have not had any time for conference with these gentlemen, and we shall not take any advantage. Mr._

The PRESIDENT. That is all out of order.

The motion was lost by a vote of 37 ayes to 55 noes.

The PRESIDENT. It goes to the committee of the whole in its regular order upon the calendar.

The report of the committee on rules was then read by the secretary as follows:


The committee on rules herewith report and recommend that the standing rule 20 be amended by striking out all after “debate,” in line seven of the printed rule.    


Acting Chairman.

Mr. VARIAN. That lies over one day under the rules. There was another report presented yesterday that ought to be read.

By request Mr. Hatch and Mr. Higginson were granted the privilege of the floor.

The following report from the committee on rules was read:


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 recommendation that said committee be so increased.

Mr. VARIAN. I move the adoption of the report.


Mr. BOWDLE. What is the purpose of this amendment. The report does not show.

Mr. VARIAN. I will state, Mr. President, for the benefit of the gentleman, I do not know except that the committee on schedule and other things made the request of the Convention that it should be done, and out of courtesy to that committee our committee acceded to it.

Mr. BOWDLE. Was there any request stating what subject they were contemplating or discussing?

Mr. VARIAN. Not at all, that I know of. It did not come to my committee. It might be in the minutes.

Mr. EVANS (Weber). Mr. President, that was the reason given in the Convention.

Mr. RICKS. Mr. President, it was before stated they had under consideration an article on prohibition and that Salt Lake City and Ogden were not represented on the committee and we thought it advisable to increase the committee so as to give them representation inasmuch as they were directly interested in that question.

Mr. CANNON. Let me ask the chairman of the committee if the entire committee asked for that increase?

Mr. RICKS. No, sir. It was just a majority of the committee.

Mr. CANNON. Was the minority opposed to the increase?

Mr. RICKS. They were opposed but they made no minority report.

Mr. ROBERTS. I would ask the chairman of the committee if there was any votes against the proposition to so increase the committee in the committee meeting?

Mr. RICKS. I don't recall whether there was any vote against it or not. Mr. MURDOCK (Wasatch). Mr. President, I voted against it.

Mr. RICKS. Mr. President, I did not {269} favor the report myself, but I did not report against it.

Mr. VARIAN. I found that report. I will say that the clerk was unable to find the original document, and we had nothing before us except that this committee had recommended it. I believe it is signed by Ricks, Chairman, as the report of the committee.

Mr. ROBERTS. Mr. President, the committee on schedule, future amendments, and miscellaneous will have before them_indeed they have before them now the question of prohibition. All the resolutions and memorials on that subject have been referred to that committee. We discovered that Salt Lake and Ogden, two locations in the Territory, which will be most affected by the action of this Convention on that subject, had no representation on that committee, and we were of the opinion that in fairness and justice to the proper regard for those whose interests are involved in this question, they ought to have representatives present there to set forth before the committee the reason why this course or that course ought to be taken in that matter, and to have the advantage of their knowledge and information on the subject from these two important localities. I take it that in the discussion of committees and in the discussion of these subjects that are up for consideration nobody desires to take any advantage of anybody else, or take snap judgment upon them, and it is only fair and right that these two localities in this Teritory so deeply interested on this question, ought to be represented on that committee, and for the benefit of the committee itself, that we would have gentlemen there acquainted with the conditions existing in these two localities, to give us the information that the committee required in dealing with the proposition, and for that reason I hope this rule will be adopted and the committee increased as suggested by the committee on schedules, by the appointment of the gentlemen from Ogden and from Salt Lake City.

Mr. CANNON. Mr. President, and gentlemen of the Convention, I am opposed to the increase that is proposed at this time, for the reason that I do not believe that it is a proper thing to do at any time when a measure is presented before the committee, to canvass that committee and find out whether or not the opponents of the measure have sufficient strength to defeat it or not, and if not, to come into a Convention and ask to have the committee increased to such an extent that they may defeat the proposition before the committee. Whether or not I favor this proposition that is up for consideration has nothing to do with the question. I will take the position that I please on that when it comes before the Convention. But I do not think that it is right for the

opponents of any measure to go and find whether they have sufficient strength, and immediately upon discovering that fact, to come in and ask that they may have more members added to the committee. in order that they may smother any bill that may be presented there. For this reason and believing that is a status of the case there, I am opposed to any increase.

Mr. IVINS. Mr. President, looking over the rules I find that this committee on schedule, future amendments and miscellaneous is composed of nine members, all men of ability, all men of good judgment, and I cannot see_I cannot conceive that there is a necessity at this stage of the game to add other members to that committee, in order that this question should have proper and careful consideration. It has been stated that the design is to give opportunity to Salt Lake City and Ogden to be heard upon this important question. I wish to ask, Mr. President, if the fact that there is no member of that committee who is a resident of Salt Lake City or Ogden will debar any {270} citizen from Salt Lake or Ogden from appearing before the committee and giving them the benefit of their views_the benefit of their wisdom? No, they can get all the information they want just as well with a committee of nine as they can with a committee of eleven. I can see this, Mr. President, that to increase this number, placing upon this standing committee a member from Salt Lake and another from Ogden, might have a very material effect on the vote. The knowledge that they have could be used to no better advantage by the committee, than it can be if the gentlemen appear and make their statements before the committee. But it adds two other votes, and I ask myself in a moment, is this a design? It has not been stated here, and if it is not such a design, then I will stand corrected. But information has come to me so direct that I cannot doubt that this is a design to increase the strength of the members of that committee who are opposed to this question of prohibition. It is because of this, gentlemen, that I shall oppose it_that I shall vote against it. And I wish to call the attention of those delegates to the fact that it will require two- thirds vote to add these two members to the committee, and I trust that that two-thirds vote will not be obtained.

Mr. VARIAN. The gentleman is mistaken. It only requires a majority.

Mr. IVINS. I would like to read, in answer to what Mr. Varian says, rule 37. (Reads.)

Mr. VARIAN. Read the next rule.

Mr. JAMES. Mr. President, I arise to a point of order. This matter is not before the house for discussion whether that rule is correct or whether it is not.

Mr. IVINS. Without further reference then to the rules, I simply wish to call attention to that fact. Now, I believe in fairness and I do not see any fairness or any necessity of increasing this committee. I believe the nine men are just as capable of making the report to this Convention as eleven will be, and when it comes here we have got to take action upon it. It is all going to come before the Convention anyhow, and I am opposed to any rule by which this committee may be consistently increased in order that some particular design should be accomplished.

Mr. ELDREDGE. Mr. President, I am in favor of this proposition to concede to those the privilege of adding two more members to that committee and, in brief this is my reason; in the

first place, I believe in a proper representation, and as expressed by the chairman of that committee it was in order to give Salt Lake City and Ogden City a voice in that committee, and with that view I will support the measure, that those may be heard in that committee before it comes to this floor, and I am very pleased to note that my friend from Davis County stands with us for representation.

Mr. RALEIGH. Mr. President, if it was in the interest of fairness, I would be very pleased to accord the opportunity of placing two more members in that committee. But I am persuaded that it is not in the interest of fairness. I think I am posted on this matter and I shall express about the same views as have been expressed by Mr. Cannon and Mr. Ivins. Now, if I had no confidence in the members of that committee, if I did not think they were competent to perform the duties and labors that have been assigned to them by the president, I would accord with pleasure the opportunity for two more members to be added to it, but I do not believe in such doctrines. I do not believe that it is in good faith at all. I believe their design to be to add to that committee in order to defeat that measure that is before the committee. That is my opinion and I think I am well posted on the matter.

Mr. JAMES. Mr. President, I regret to take up the time of the Convention {271} for a moment unnecessarily, but it does seem to me that there has been some things said about this matter that ought to be answered. It has been raised upon this floor that the members of the committee asked to be added to that committee would be prejudiced. Now, I take it for granted that that is not true. I think the president will select gentlemen from Salt Lake and Ogden that will be fair, impartial and just, and that they will truly represent the people of those districts, which are the two great centers we have in our Territory, and for that reason I hope that this motion will not prevail, I do not think that it is done for the purpose of putting on this committee some gentlemen that will defeat the object of a committee. Now I do not think that is just the way to put this question, and I am very much pleased to see the position that some gentlemen have taken on this floor that it is for the purpose of giving representation, and not for the purpose of handicapping a committee.

Mr. EVANS (Weber). I do not desire either to take up the attention of the house, but coming from Ogden which is not represented on that committee, I think I should say a word. It seems to me that no gentleman upon this floor ought to object to such cities as Salt Lake and Ogden having a representation on that committee, at least since the gentleman has asked it. Gentlemen, let us extend the courtesy and vote upon it.

Mr. GOODWIN. Mr. President, a committee of this house have made a request. The house after considering it granted the request. The matter was referred to the committee on rules. The committee on rules took the trouble to investigate and report. There has been considerable said on this subject on the motives of men and prohibition generally, but it is simply a courtesy to that committee. I think it ought not to take one minute to decide. If any other committee was to ask a similar courtesy here I think it would be granted. Why is that committee picked out? I believe the request here includes the chairman. We will discuss the other question when it comes nntil we get tired of it. It is not due here to-day.

Mr. RICHARDS. Mr. President, I am in favor of this motion, but not because I think the addition

of the two members is desired for the purpose of advancing or defeating any particular measure. I am in favor of it because the committee has asked for it, and I think we ought to grant it. It seems to me the question is an unfair one, although I am satisfied my friends who have made it have not made it in the spirit of unfairness; it presupposes either one of two things, either that the president will be partial in the appointment of members from Salt Lake and Ogden, or else there is nobody in the delegates from those two places, that would favor the proposition that is suggested. Now, I suggest in the first place, that we cannot attempt any unfairness on the part of the chair in making these appointments. I desire further to say that if it be true that there is no member of the Salt Lake or Weber County delegation that favors this proposition, no matter what it may be, whether for prohibition or anything else_if it be true that one-third of the population of this Territory are not in favor of the proposition, that itself is a sufficient reason why they should be represented. So I say, that under any consideration, in any view of the case, these two cities should be represented.

The report was adopted.

Mr. Partridge was by his request excused.

Mr. LUND. Mr. President, as the chairman of the committee on accounts and expenses, I would like to ask, if according to the rule, we are only to keep account of the expenses and the vouchers for the same, or if we are to {272} know what expenditures are going to be made and say whether they are or not necessary. I make a motion that it be the sense of this Convention that we be asked whether the expenditures should be made or not.

Mr. BARNES. I second the motion.

The PRESIDENT. That motion is out of order.

Reports of standing committees are in order.

Mr. BARNES. Mr. President, this gentleman who spoke is the chairman of one of the standing committees and I would like it to be considered in the nature of his report. We were undecided to know what our duty is and he has taken this method of reporting.

Mr. RICHARDS. Mr. President, I submit that that is not in order. If the gentleman desires information on this subject he can ask for it at a proper time.

The PRESIDENT. The point of order is well taken.

Mr. LUND. Mr. President, I will say that in the nature of the report from this committee that you accept an oral report that some expense was incurred that we deem unnecessary.

Mr. THURMAN. Mr. President, I move the report be filed. [Laughter.]

Mr. VARIAN. I would like to ask the gentleman if it is the intent to carry the reporter with the

report if it be filed.

Hon. Jacob Johnson, of Sanpete County, was admitted to the privilege of the floor.

Introduction of ordinances and propositions for insertion in the Constitution.

The memorial from citizens of Salt Lake County on prohibition was again presented by Mr. Bowdle.

Mr. CHIDESTER. Mr. President, I move that the rules be suspended and the resolution read a first and second time by its title and referred to the proper committee.

Mr. BOWDLE. It is not a proposition for insertion.

Mr. VARIAN. Mr. President, I move
then as a substitute that it be referred to the committee of the whole with report of the committee on schedule, future amendments and miscellaneous,

The substitute was agreed to.

Mr. Thoreson introduced a proposition concerning first, water rights and privileges; second, state and county water commissioners; which was read a first and second time by its title and referred to the committee on water rights, irrigation and agriculture.

Mr. McFarland introduced a proposition relative to 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. Kiesel introduced a proposition relative to fish and game, which was read a first and second time by its title and referred to the committee on schedule, future amendments and miscellaneous.

Mr. Kiesel introduced a proposition relative to the preservation of forests, which was read a first and second time by its title and referred to the committee on water rights, irrigation and agriculture.

Mr. WELLS. Mr. President, I move we now resolve ourselves into committee of the whole for the consideration of preamble and declaration of rights.


Mr. VAN HORNE. Mr. President, the committee on rules not having yet changed the rule by which the committee can rise and report at any time, I move that we resolve ourselves into committee of the whole until 5 o'clock this afternoon_as an amendment.

Mr. WELLS. I accept the amendment.

Mr. HART. Mr. President, I arise to a point of order. This is not in order under the order we are now considering. The chair has not yet announced that motions and resolutions are in order. I think this motion should come {273} up under that. I do not want to be captious. The reason I make it is that I believe a motion should be made before going into committee of the whole. A special order was made some days ago for consideration by committee of the whole, and if you got into committee of the whole for changing that, we would have to consider that, and I think that the delegates here do not care to break into the work of considering the preamble of rights now, and take up a subject foreign to that. That is the reason I arise to a point of order.

The PRESIDENT. It seems to me that that point of order is well taken.

Special orders.

Mr. PIERCE, Mr. President, as the chairman of the committee on education, I move that the action of the Convention the other day by which they made this bill on education a special order, at this time be reconsidered and come up immediately after the bill of rights.

The PRESIDENT. If there is no objection the request of the committee will be granted.

Motions and resolutions.

Mr. SQUIRES. Mr. President, I understand that the secretary of the Convention has been to some expense under a resolution offered by Mr. Evans, of Weber, regarding the writing of some thousand letters to different parts of the Territory, and as no provision was made to furnish postage, and the Convention voted not to furnish postage, I move now that the secretary's bill for postage be paid out of the funds appropriated.


Mr. LUND. Mr. President, I would say for the information of the gentleman that there are no funds yet that we can lay our hands upon.

Mr. VARIAN. There will be.

Mr. KIESEL. Mr. President, I wish to amend this motion and add that the expense of the several chairmen of committees incurred in that respect also be paid.

Mr. SQUIRES. I accept that.

Mr. HART. Mr. President, I move to refer the motion with the amendments to the committee on accounts and expenses.


Mr. BARNES. Mr. President, I wish to state the condition of matters to-day. I am informed by

the secretary that he requires something like ten dollars' worth of stamps at the present time, in order to properly mail letters in conformity with his duty, and the question is, where shall the money come from to provide him with the stamps.

The motion was agreed to.

Mr. Maloney introduced the following:

Resolved, that it be the sense of this Convention that its labors be completed within the shortest time practicable and consistent with good and efficient work, and that we incur no indebtedness to be paid by the future State of Utah.

The resolution was adopted.

Mr. Ricks introduced the following:

Resolved, that rule 20 be amended as follows:

By striking out the clause “nor a limit to be made as to the number of times speaking,” and inserting in lieu thereof the following: “No member shall speak more than twice on the same subject and no speech shall occupy three minutes.”

The PRESIDENT. It goes to the committee on rules.

Mr. WELLS. Mr. President, I now move that we go into committee of the whole.

Mr. RICKS. Mr. President, I move to amend by adding “until 5 p. m.”

The motion as amended was agreed to.


The Convention then resolved itself into committee of the whole with Mr. Squires in the chair.
The CHAIRMAN. When the committee of the whole arose yesterday, section 10 of the bill of rights was under consideration. The gentlemen will find upon their desks the printed amendments of both sections 4 and 10, as required by the Convention.

Mr. EVANS (Weber). Mr. Chairman, I desire to withdraw the amendment to section 10 which I offered, if it may be done under the rule, with the consent of my second, and would like to introduce a substitute for it, which I will send to the secretary's desk to have read.

The same was read by the secretary as follows:

Section 10. The right of trial by jury shall remain inviolate, but the Legislature may provide a less number of jurors than twelve in prosecution for offences below the grade of felony, and in civil cases. A

verdict in such cases may be found by a concurrence of two-thirds of the jurors, and the jury shall be waived in civil cases when not demanded as the Legislature may provide; provided, that a jury in the district court shall consist of not less than nine, and a jury in the county court shall consist of not less than six, and a jury in the justice's court shall consist of not less than three.

Mr. VARIAN. Mr. Chairman, I would like to ask what becomes of all these amendments then?

The CHAIRMAN. The amendments are all pending.

Mr. VARIAN. Well, to what? I offered an amendment. The amendment that was offered by me applies to the matter that he withdraws, and I certainly would have a right to say whether that could be done or not.

The CHAIRMAN. You have that right.

Mr. VARIAN. Well, I prefer to let the matter stand as it is, and if all these matters are voted down, Mr. Evans will have an opportunity to re-introduce that matter in the shape he desires. It will do away entirely with my amendment and probably with the second amendment, because the amendment was made to the substitute and not to the original section and refers to the substitute offered by Mr. Evans by line and word.

The CHAIRMAN. Under the circumstances the printed amendment will have to stand.

Mr. PIERCE. Mr. Chairman, I rise to say a few words in support of the amendment of Mr. Varian. The only remarks I want to make are upon the question, as to whether a jury in civil actions in courts of record should be twelve or less than twelve. If I understand the amendment of Mr. Varian correctly, it provides for a jury in civil actions in courts of record of twelve, nine of which can render a verdict. I am in favor of this. I do adhere to precedent. I believe in precedent. The reason I believe in precedent is because it contains the wisdom of all ages that have gone before us, that have had the same subject under consideration. This is the provision as it exists all over the United States. There is not a single state in the Union, if I understand the proposition correctly, that provides for a jury in civil cases in courts of record of less than twelve men. The reason constitutions which have been enacted by all of the different states adhere to the old common law jury, many of them, however, providing that a verdict by less than twelve can be rendered_it seems to me that there is some reason why this precedence and why this line of thought are followed by all the states that have recently adopted constitutions. The state of New York during the last year had under consideration amendments to its constitution. If the wisdom of that state in previous years, through all their practice in civil actions, had led that state to believe that a jury of twelve men in civil cases was sufficient to try a case, why was not that question brought before them? And I think, gentlemen of the jury, that we should hesitate [laughter]_ {275} excuse me, gentlemen of the committee, I thought I was addressing a jury of twelve men. Gentlemen of the, Convention, we should hesitate a long time before we take this first important step to our jurisprudence. It seems to me that we are not the ones that have discovered this great secret that nine can render a verdict, but that if it was of great advantage, as it is represented by the gentlemen upon the other side, other men framing their constitutions must have discovered the secret before this. I think if there is any one time when this Convention

ought to follow the precedent of all ages, this is the time. It seems to me that we can not do better than adopt the system that all the states in the Union, following the old common law, have adopted. Now, gentlemen of the jury [laughter], there is a reason why twelve men are better calculated to render a verdict than less than twelve men, and I am going to give you that reason. We were asked to give a reason yesterday for it, and I am going to give it to you. Men's minds are constituted differently. No one man thinks as his neighbor does. Take any twelve men upon this floor, no one will give exactly the same reason for his judgment that another man will give. Now, sir, the experience of men, the experience of courts, have taught us that where there are twelve men together, twelve different minds reasoning upon the same proposition, they will arrive at a better conclusion, and a more satisfactory conclusion, than nine or less than that, and I believe that that is the secret. We have twelve different views of the proposition that is before the court and before the jury and the views of twelve men unite in a concensus of one view upon the final verdict.

The verdict then will express the opinion of twelve men; the twelve men will have different reasons for their views; each man will have his own reason, and it seems to me that this is
a thing that we should follow. I do not believe that we should be the first to take this important step, and I am opposed to it and I am going to stand for the old common law jury system and vote that the jury shall be twelve and that nine can render a verdict; and the reason that I am willing to vote this way is because if we allow nine to render a verdict and not make it unanimous, we remove the three. It is possible sometimes that in any jury there may be corrupt influences brought to bear upon the jury and that influence may affect one or two, or three men, but it is very rarely that it will ever go to affect four men on the jury. And that, I believe, is why the verdict should be by nine and not a unanimous verdict, and I am in favor, gentlemen, of the proposition of Mr. Varian.

Mr. CREER. Mr. Chairman, for information of the gentlemen, I wish to read from the constitution of Wyoming to show that we would not be the first to establish this precedent as indicated by the gentleman from Salt Lake. “The right of trial by jury shall remain inviolate in criminal cases, but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than twelve men, as may be prescribed by law.” So we would not be the first to break the established order.

Mr. PIERCE. Then I take that back.

Mr. WELLS. Mr. Chairman, I desire also to call the gentleman's attention to the fact that that section as reported by the committee is the identical language of the constitution of the state of Washington, that provides for a jury of less than twelve in courts of record, and for a verdict of nine or more jurors in criminal cases in any court of record.

Mr. THURMAN. Well, if I am not mistaken, Mr. Chairman, this is the worst mistake I ever made in my life. If I am mistaken in what I now say, I should be in Provo sure, and, sir, [laughter] a mile east of the bank corner. {276} The fact of the business is I am not mistaken. I have been having hard work for several days trying to get gentlemen, among whom is the honorable gentleman himself, to come up to a jury of nine in criminal cases, to say nothing about civil, and

we reach that point. A jury of nine_in criminal cases a verdict unanimous; in civil cases a verdict by two-thirds in courts of record. In inferior courts a less number of jurors but still a verdict by two-thirds. Somewhere and at some time before the close of this Convention, I would like to know whether gentlemen can stand upon the same propositions and maintain them for two consecutive days.

Mr. Chairman, I am in favor of the amendment proposed by the gentleman from Weber, Mr. Evans. I am in favor of reducing the number of jurors from twelve to nine unless some gentleman can arise upon this floor and give a better reason for continuing twelve jurors than the simple reason that all men's minds are constituted differently. What reason is that for a jury of twelve? If every man's mind is constituted differently from every other man's mind, is that any reason why it takes exactly twelve men to logically, and fairly, and squarely, determine a proposition? Certainly it no more demonstrates the fact that twelve are necessary than that nine are necessary, or, if it be true that the greater number we have the better the jury will be, why not have fifteen, or twenty, or twenty-five, or thirty? Or why not adopt what the gentleman unwittingly expressed when he says, in referring to us, “you, gentlemen of the jury,” why not have one hundred and seven and be done with it? Now, I am inclined to suppose that when the gentleman from Salt Lake calls us gentlemen of the jury, that in his desire to have a great number he had at some time been figuring on a possible jury of one hundred and seven. The fact of the business is this, it has only been a few years since the legislature of any state concluded that it was possible to so far draw away from the old rut as to agree that nine might bring in a verdict. Many states have come to that. All the gentlemen who are contending here for a jury of twelve concede that was a wise innovation. They accept that. By their proposed amendments here, they can see that nine may bring in a verdict. What do they mean by that, and what does that argue to this Convention? That is the first innovation made upon this grand sacred common law jury which has been proved and demonstrated to be a success, and that the very gentlemen here who are arguing now in favor of the old common law jury, conceive that that innovation is good and should be made.

Mr. Chairman, if we are admitted into the Union as a state, we will find upon the very threshold of our admission that we have the burdens of a heavy taxation to bear. It will bear heavily upon the people of the Territory of Utah; they will be admitted into the Union during the hard times through which we are now passing. Let us look something to the economy of this question_let us consider that phase of it. I do not ask you to lay aside principles which are acknowledged to be wholesome and sound and go and accept something that is radical and uncertain simply because of the economy; but I reiterate the question asked by the gentleman from Weber yesterday afternoon, can any man say why the number should be twelve rather than nine? If then it be true that there is no difference that you can point out that is material why the number should be twelve rather than nine, why make this point on our side of the question, that there are three less men for which the State of Utah will have to pay. That of itself is a consideration which I cannot ignore, and I believe that a jury of nine will prove just as effectual, will be {277} just as well calculated to preserve the liberties of the people, and the rights of the people, as a jury of twelve. And, on the score of economy, I am in favor of the amendment as it is now proposed. I was opposed to it as it was yesterday proposed, but favor it as now proposed by the gentleman from Weber.

Mr. PIERCE. May I ask the gentleman a question? Why don't he argue for five instead of nine?

The CHAIRMAN. Just a moment, Mr. Pierce. Is Mr. Thurman speaking to the substitute for the amendment offered by Mr. Evans? This has been declared not in order because it cannot be considered without doing away with the amendment offered by Mr. Varian.

Mr. THURMAN. Very well, then, Mr. Chairman, my remarks may be construed as against the field; if that is out I am against the field.

Mr. RICHARDS. I am in favor of the proposition to have a jury in civil cases of less than twelve. I know that there is great reluctance in the minds of people generally, and particularly of lawyers, to depart from old and long established usage, but there are times when progress and the spirit of the age requires that we should break some of the bands that have bound us for ages past, and human progress requires that some innovation should be made. Now, during the last few years in the constitutions that have recently been made, these matters have been taken into account. Men who have had long experience in the courts, had practical experience, in the operation of juries, have come forward and given their experiences, and the conclusion has been arrived at that the liberties of the people would be safe, the liberties of the citizens would have been safe in the hands of less than twelve men. That is my firm and positive conviction after some experience in these matters. I believe in a less number than twelve. I do not believe in requiring a unanimous verdict. I do not think there is any special reason why twelve should be the number any more than fifteen or twenty. And when we come to consider the reason and conditions that exist now, as compared with those that were existing who first adopted the jury system, and from whom we inherit it, we can see many reasons why these changes should be made and ought to be made, and without entering into those matters, because I realize that the time of this Convention is valuable, and I feel, myself, as though I wanted to resist any temptation that I might feel to indulge in any flights of oratory and spread-eagleism over this great charter of human liberty. I think the thing we ought to do is to get right down to business, and to determine what is practical and what is best for the people of this new State.

We ought to throw aside sentiment, if it is sentiment, and sentiment alone, and not cling to some work of the past simply because of its antiquity, when we concede or ought to concede, if we are honest with ourselves, that it has lost its usefulness and utility. And so I say I am not in favor at this time of the abolition of the jury system. I do not advocate that, but I do say it would be a retrograde movement on our part for us to insert in this Constitution a proposition to require a unanimous verdict of twelve men, or even to require a jury of twelve men with a three-fourths verdict. I think we ought to have a less number. Why should there be twelve men if nine could make a verdict? Without prolonging my remarks, gentlemen of the Convention, I believe that is a principle we ought to adopt in this matter. And while we ought not to be hasty in making innovations on the institutions of the past, we ought not to be afraid when an improvement is pointed out to us to take advantage of it and to find ourselves in the line of progress in these matters with our sister states around us.

Mr. EICHNOR. I would like to ask {278} the gentleman from Salt Lake a little question. Are you in favor of reducing the number of jurors in criminal cases?

Mr. RICHARDS. No, sir; I did not say that.

Mr. EICHNOR. I know you did not. I wanted to know for information. You are not in favor of reducing the jury in criminal cases?

Mr. RICHARDS. If that recommendation were before the Convention I am not sure that I would not vote for it, but I do not believe that it would be popular with the Convention. I doubt if it would be popular with the people.

I say, Mr. Chairman and gentlemen of the Convention, candidly, that in my estimation the people of the country are not educated up to this matter. In my opinion they over-estimate this_what has been denominated on the floor of this Convention, this great bulwark of human liberty. They over-estimate its importance, in my opinion, and I am seeking and shall seek in my labors in this Convention to accomplish that which is practicable. I shall seek to introduce into the Constitution, so far as I have influence, those things only that I believe will meet with the approbation of the people, and while I would like to educate them in these matters as far as we can, I would not favor an innovation that would meet, in my opinion, with disfavor from the people. As to criminal cases, therefore, I think it would be wise to retain twelve jurors and require a unanimous verdict, because I think the sentiment of the people probably would demand that, but in civil cases, no. It is an unnecessary expense. It results in trials and mistrials. It results in the expenditure of vast sums of money in litigation in men trying to determine their rights, that might be saved and the rights of the people preserved, just as well as to require this jury of twelve with the unanimous verdict. That is the result of my experience and my observation.

Mr. VARIAN. Mr. Chairman, I want only to say a few words on this matter. I quite agree with my colleague from Salt Lake that this is a practical question, but I do not agree with the intimation that he throws out that we ought not to be permitted to discuss it, and ought not to take up any time.

We do not all agree with him on the subject, and I am not advised as yet that there has been any spread-eagle sentiment injected into the debate upon this question. There are some things connected with it which have been said and referred to, which it seems to me ought to be considered in a little different light. Allusion was made on yesterday by one of the speakers to a publication addressed to one of the committees of this house from the United States district attorney for this Territory, giving in figures the expenses for the previous year of the administration of justice in the courts here. From that I inferentially argue that the expense of the jury system is something enormous. I want to call attention of the house first to the fact that that report is misleading_not misleading as being intended to mislead, because it details correctly the facts, but misleading in its application to the consideration of this question. There are four districts in this Territory. Necessarily the jurymen and witnesses have to come long distances, some longer and some shorter, of course, and added to the great press of business, the inability of the courts as at present constituted, to dispatch it, long delays are necessitated. Grand jurors and trial jurors, witnesses in criminal cases and in civil cases, have to wait day after day. It is impossible to avoid it. Bills of that kind will accrue and the expense piles up. Then the district attorney's office is so hurried and overworked that they cannot take time to see all the witnesses

in each case. They simply must throw out their subpoena and bring them in and make them await their convenience. As a matter of fact, any gentleman here {279} who has had experience on grand juries or trial juries knows that witnesses wait day after day before the grand jury or trial jury as the case may be, and all the time the expense is going on. And in that connection I call attention to a probable fact that within a week or two it was noted by the public press that the grand jury of the district in which the gentleman, Mr. Thurman, resides, was held by the United States attorney some five or six days to await the determination of a question of law relative to an indictment. All that fifteen men were held, according to that, five or six days, and their per diem went on, in order to await the determination of this question by the court.

Now, I assume that the judicial system proposed in this Convention by the committee on judiciary, will contemplate the holding of court in each county. I find that system in operation west of us now. Every month the judge comes around and holds the court. Sometimes in some of the outside counties there are two cases, sometimes one, sometimes five, as many as there are he disposes of them and goes on to the next county. I was in the court in one of these counties the other day where a trial jury had been called to try a murder case. That was the only case ready for trial. There were two civil cases which did not require juries. The judge immediately called that jury and made the attorneys select the jury and try the murder case and discharged the rest of them. He went on that day and disposed of his civil cases, which did not require juries, and opened up trial of that murder case on the following day. So you see that with such a system this expense, which seems to be put forward here as the most potent argument in favor of these new innovations, does not necessarily reach the proportions that the gentleman would have us believe. It should not do so. But if it did there are ways to economize, it seems to me, in other directions than to economize in this direction. We do not know that the State of Utah will be required to pay the juries at all except in criminal cases. It is very generally the rule in this western country for the litigants to pay the fees of the trial jury. The person who recovers the verdict does not have his verdict recorded until the per diem of the jurors shall have been paid, whereupon they are taxed up in his favor as costs against the losing party. I say we do not know what views this judiciary committee may have upon the question.

Mr. CREER. May I not ask you_would not that be reducing the expenses to the people generally to favor Mr. Evans' proposition, if the jury was smaller?

Mr. VARIAN. I understand it would reduce the expense of the jury system to the people generally, yes; I am only discussing this question from one stand-point now_the standpoint of expense. The question of expense, I hope, will also be considered when this Convention and these gentlemen on these several committees come to determine the question of taxation. I have no doubt, Mr. Chairman, there will be sufficient means to carry on this State government economically administered if all the property in the State shall be subject to its proper burden of taxation_property of corporations and money loaners as well as the property of the resident farmers and others. I do not think either that this question of expense should assume a prominent position in this argument. The question is one of right, upon which, of course, men may differ, but we are asked why it is that we should claim that the jury should remain as a whole_of the number of twelve. I might answer by retorting to the gentleman with the question, why not reduce it to one? How do you fix the number at nine? How do you come to fix that number?

How do you fix it at eight or seven, or five, as may be according with your individual views? {280} Is not it the tendency, gentlemen, and is not that what you had in your mind in accordance with the tendency and the pressure of late years to force out and crowd out the jury system?

I have practiced law for some twenty-three or four years in my feeble way. I have yet to meet the gentleman of sufficient professional standing, learning and ability to receive employment at the hands of large capitalized incorporated institutions, but what in accordance with the general opinion of the people behind him, his ideas have gradually become changed and molded and shaped in that direction_to do away with the jury system entirely with a unity that is perfectly marvelous. They are ready to remodel the whole system, and submit cases for decision in the courts alone. Now, it is true that the jury system is an old one and is venerable and hoary with age, so is the judicial system as a whole.

It is no older than the system of judges; both date back a century or two in the very twilight of antiquity, away back beyond the age of Alfred. I cannot tell you what the origin of the number of twelve was.

Mr. ELDREDGE. I believe I can tell you, Mr. Varian. It was in the Twelve Tribes of Israel.

Mr. VARIAN. That has been suggested by some of the writers on the subject. I do not remember whether it was Mr. Forsythe, in his great work on trial by jury, or whether it was by the English law-writer Glanville. At all events it has been suggested that it was in analogy to the sacred judge_the Savior of mankind and His twelve apostles. I find it so far as I remember now upon what I have read upon the subject that there does not seem to be any definite fixed origin of the number of twelve, but this fact is true that for many, many centuries, not only in England, but beyond and way behind Saxon times in England, in other countries on the continent, in the Scandinavian peninsula, the jury system prevailed and it was always twelve and was always unanimous. I believe that in all European countries to-day where it prevails at all, twelve is the number, but I cannot not inform the gentleman why that number has been selected or determined in all these cases. I do know that is the system that seems to have been embodied and engrafted in the very body of English speaking nations. In England and in America it has gotten a hold upon the affections of the people that it requires no uncertain or indefinite reason to relax it. To-day, for a hundred years ever since the adoption of the Constitution of the United States, the system prevails under that government in all the federal courts_the jury system prevails as it prevailed at common law in criminal and civil cases. I have yet to learn that ever an attempt was made by any state or by any member of Congress to submit to the state a proposition to amend the Constitution in that particular. You will have that system as it now exists under the Constitution side by side in this State with the system you shall adopt.

Much of your business_most I should say of your important business, will find its way by gravitation into the federal courts, at least a very large percentage of it will find its way there. Your own citizens on one side at least, will be dealt with under this system in accordance with its provisions; whereas, if you make this change, you will have in the State courts a radically different system. That does not necessarily furnish any very pronounced argument if it stood alone why you should not adopt this system.

But coming now further down to the question of the people, I have forgotten just how it was presented yesterday, but some suggestion was made of arbitration. The gentleman knew we have always had statutes providing for arbitration. They exist everywhere. You {281} have one here in your code, wherein two citizens, if they so desire, can withdraw the differences in dispute between them and submit them to arbitrators under the law, and I venture to say, that not any one case out of two hundred_nay, three hundred_speaking just generally now without intending to be precise, I have made no estimation of it, but looking back in my own mind as it occurs to me whether_whatever people take advantage of that possibility_they are unwilling to do it, and in the same ratio, too, they decline to submit their cases to the decision of a judge, however learned, however able, however conscientious he may be. It shows to my mind that the people are still clinging to that right of trial by jury; they have an affection for it; they feel that as this government is constructed and as the pressure is growing stronger and stronger every day against them and their acts, and this one of the last holds that they have, it is upon the jury that they rely, not upon the court.

We are informed, and I did not doubt it, and I have thought it would be so, that the committee on judiciary have about concluded unanimously_the committee consisting of five practical lawyers with the rest_nine at least laymen, farmers, contractors, and others from the different businesses and pursuits of life_have in these few days reached a conclusion which is not only an innovation but is a startling innovation affecting the administration of justice in the State of Utah. When that question comes as to constitution of the trial jury in criminal cases I trust that it will receive a prolonged consideration if such is to be the report of the committee.

I would prefer, Mr. Chairman, if it is the sense of the majority of this Convention that the jury law system should be changed, that at least a limitation upon the change should be presented so that the Legislature might be permitted, if the temper of the people should demand it, to make such further change in that particular as they might deem best, either to restore or to still further modify it.

In answer to the gentleman from Salt Lake, I will call attention to the proposition as it would stand if my amendment prevailed. In this event it would read, “the right of trial by jury shall remain inviolate, but the Legislature may provide for a verdict by nine or more in civil cases in any court of record.” On yesterday, it was suggested by the gentleman from Utah, Mr. Creer, that he preferred to have a distinct and specific declaration in the section, as it was originally presented by the committee, that the Legislature might provide for a jury of any number less than twelve in courts not of record. I would have objection myself to its going in there. The reason I did not put it in the amendment offered was because I deem it unnecessary. I think the Legislature has that power anyhow, if they choose to provide for a field where the constitutional jury can be afforded. Also, as to provision for waiving the jury in civil cases. There is no question about that; that has been decided and is acted upon every, day where court sits. Lastly, I want to call your attention to the great sphere which Is practically an object of the trial by jury at all in civil cases. The jurors speak only to questions of fact, the judges only to questions of law. That is the division which has been clearly defined, and as so defined and marked, has been continued through all time, ever since we have any knowledge of the jury system. These men, coming as they do from all the different walks of life_from the neighborhood as we understand

it_which means from the county or the district with all the interests of the people, with the temper of the people, bringing to bear upon this decision that they are about to make of the disputed question of fact that may be submitted to them_they have better qualifications than {282} the judge, trained lawyer as he may be, who, in a measure is isolated by virtue of his pursuits, from the people.

Their judgment is sound, can better be relied upon in the long run than that of the judge. He has_in the very nature of things he becomes exclusive, wrapt up in his studies, inclined to become after a time, arbitrary. This argument would apply to any single juror. He is less apt to understand or comprehend all the field of disputed matter submitted than a number of men. It is a tribunal particularly and peculiarly adapted to determine such questions. It is a tribunal in which the people have confidence, and I do not believe that there is any justice or cause for the intimation that as a rule, or any-wise subject as the extraordinary exception, are the trial jurors corrupt. The trial juries are just as good and no better than the people from which they come. I do not believe the people are corrupt. There are bad men everywhere; they occasionally creep into office; you cannot legislate wickedness of that kind out of the heart of man; you can only, when you discover him, set him aside and stamp upon him. So I say as to the intimation that was made here yesterday in regard to the purchase of jurors, I do not believe that there is any such thing in them as a rule than as to other officers. You hear those intimations here and there but it is unfair to the people, is unjust to the jurors; as a rule they are honest, as a rule they are capable, and as a rule, taking the cases as they come and go, I venture to say that their judgments are really and truly righteous judgments. We may, in the heat and zeal of the professional life, find ourselves unable to make a jury take the same view as ourselves of a particular question we have at heart and are employed to prosecute or defend, yet after all, if upon sober reflections we consider the question, in ninety-nine cases out of one hundred the lawyer who is dealing honestly with himself (at least that is my experience) comes to the conclusion that perhaps after all he has been wrong. So I say if that is the way, all the more necessity for maintaining such a tribunal which is standing between the aggressions of the age of this great civilization of to-day, and the rights and the liberties of the people. I do not speak in a demagogue sense at all. My own views are extremely conservative. I have no design or desire of that kind. I simply look on and try and learn from experience, and as at present advised, I feel that this is a dangerous proposition which I, for one, am not willing to assent to.

Mr. BOWDLE. We have before us four propositions. There is in my mind_

Mr. GOODWIN. At the right time I shall withdraw my proposition and favor the one last offered by Mr. Evans.

Mr. BOWDLE. If the gentleman is going to withdraw it, I would prefer that he withdraw it before I make any remarks.

Mr. VARIAN. What is the proposition?

Mr. BOWDLE. The original proposition and the three amendments_

Mr. VARIAN. I do not want to take the gentleman from the floor, but I merely want to understand. I understand that the proposition of Mr. Evans is a substitute for section 10?

Mr. BOWDLE. Do you understand Mr. Goodwin's proposition is an amendment to Mr. Evans' proposition?

The CHAIRMAN. Mr. Goodwin's proposition is a substitute for both the amendments that were offered.

Mr. BOWDLE. Very well, then I will not withdraw until the Judge withdraws it.

Mr. GOODWIN. Mr. Chairman, I wish to withdraw my proposition in favor of the amendment made to-day by Mr. Evans.

The CHAIRMAN. That cannot be done, Judge. The amendment offered {283} to-day by Mr. Evans is not before the committee.

Mr. GOODWIN. I simply wish to withdraw mine.

The CHAIRMAN. Well, that is all right.

Mr. EVANS (Weber). Now, as that is withdrawn_I move now, as an amendment to the proposition which I last offered in the place of that withdrawn by Judge Goodwin.

The CHAIRMAN. I recognize Mr. Bowdle to have the floor.

Mr. EVANS (Weber). Only for the purpose of getting it before the house so that it may be discussed. That is all I wanted to say.

The CHAIRMAN. Mr. Evans now offers the proposition which he sent up before, which is a substitute for section 10.

Mr. VAN HORNE. Mr. Chairman, I would like to ask for information as to how the motion now stands_what motions are before the house on this subject?

The CHAIRMAN. Gentlemen, as I understand the question, on yesterday Mr. Evans moved to substitute section 10 by offering the printed amendment which you have before you. Mr. Varian moved to amend that as you see by the printed amendment. Judge Goodwin offered a substitute for both those propositions, which is also printed and before you. Judge Goodwin now has asked unanimous consent to withdraw his substitute and there being no objection it stands withdrawn.

Mr. Evans of Weber now offers the amendment which was read by the clerk in the early part of the session, so that his amendment would be a substitute for all.

Mr. VAN HORNE. And I understand no further motion or amendment would be in order?

The CHAIRMAN. I should say not.

Mr. VAN HORNE. I had one, that is a substitute on the line of Mr. Evans' Substitute that I would like to introduce. If there is no objection upon the order of an amendment to the substitute, I would like to introduce it.

The CHAIRMAN. If there is no objection, Mr. Van Horne will state his amendment.

Mr. Van Horne read the following:

The right of trial by jury shall remain inviolate, but the Legislature may provide for a jury of not more than twelve and for a verdict by any number not less than two-thirds of the jury; provided, that until otherwise prescribed by the Legislature, the jury in civil cases in the district courts shall consist of nine, and in the county courts of six, two-thirds of whom may find a verdict.

Mr. VAN HORNE. Mr. Chairman and gentlemen of the Convention, it seems to me that we have strayed somewhat from the purpose of our amendments here in the arguments that have been made. And I take it that it is not that we are fixing a jury other than the people might demand, but that we are not leaving open to the people through their Legislature the right of fixing such a jury as they may demand, the one best fitted for the needs of the community. I think that we may safely trust the people through their Legislature to fix such juries as will secure the liberties of all the citizens, and the just consideration of all the disputes between them. For that purpose, I have introduced the amendment which I have just proposed, which leaves, as I construe it, (and I think there can be no doubt about it) the jury in criminal cases remaining as it is, twelve; the jury in civil cases in the district court until the Legislature shall order differently, consists of nine, with two-thirds necessary to find a verdict. In the county courts of six, with two-thirds necessary to find a verdict. It seems to me the question is not for consideration now, about our saying to the people what that jury shall consist of. It is a question whether we will say, “whether you want it or not, you will never be able {284} to change this jury system without amending the Constitution.” If that is our purpose, if we are so certain of the fact, that people are wedded to the idea of twelve in criminal cases or in civil cases, there can be no harm in letting it lie with the Legislature, as to whether they will make such change or not. In all things where it can be done, it seems to me that our proper province is to leave the people free to choose for themselves, and I think that this amendment does that.

Mr. HART. The idea of the gentleman from Salt Lake, in the last portion in regard to the way this matter is left to the Legislature, I think is correct. I think Mr. Evans' first substitute for No. 10 leaves the whole matter with the Legislature, and I am in favor of doing that. I would be prepared to vote upon cutting down the number of the jury in the district court either in civil or criminal cases, to nine, but we are not doing it in this manner. All we do by passing the resolution as offered by the gentleman from Weber County_one that is in print, would be to leave that matter to the Legislature. I am not in favor of tying the hands of the Legislature on a matter of that character. It is true that we have the precedent of the past from a very early age in favor of twelve jurors, and yet to my mind, there is nothing sacred to that number, there is no good reason why the limit should be fixed at that number rather than a higher or lower number. I do not think that there will be any difference in the judgment of members of this Convention as to a majority

verdict in civil cases. I was also struck by the absurdity and the contradiction of a judge in a civil action, instructing the jury that they must find a certain issue according to the preponderance of the testimony, and at the same time requiring them to find that preponderance of evidence by a unanimity on their part of their verdict. In other words, it seems to me, that the best way to arrive at the preponderance of testimony in a civil issue, would be by a preponderance, or a majority if you please, of the jury passing upon that issue. So, I think, Mr. Chairman, that there will be no difference in the minds of this Convention upon the question of a majority of some sort_two- thirds or more in civil cases, and I think we ought to leave this matter of how many the jury shall consist of to the Legislature. I do not think that the people's representatives assembled in the Legislature will abuse that privilege. I do not think that there is any necessity of limiting the number as Mr. Van Horne's motion would indicate; and my objection to the last two sections proposed by Mr. Evans, and also by Mr. Van Horne, would be, that in the first place the words, “county court” are used. Now we have not determined upon any such court, or court by any such name as that. It may be that they would decide in favor of a superior for each county with the jurisdiction that is now given to the district court. In that case the word that we might use in debating either of these sections would be contradictory, and tie us up to a certain extent, both in the name and as to the character of the report.

The CHAIRMAN. The committee on compilation would arrange that.

Mr. HART. Well, they could possibly reconcile a difference of that kind. Another thing, the matter would not be helped any by the resolution last offered by the gentleman from Weber in the point of economy, by providing that in criminal cases involving an offense lower than a felony, a jury of nine or less number than twelve should be employed, for the reason that the number of talesmen selected in the beginning of the term of court would be selected with a view to the number of jurors that would have to sit on the cases requiring the highest number of jurors. For instance, if there were a case of felony on the calendar, the jury would have to {285} be selected with reference to that, and cases might alternate, first a case of misdemeanor and then a case of felony. In the first you would call nine men to sit and then twelve, but you would have to have your talesmen all there to a certain extent if you would ever wish a jury composed of twelve men. I do not know whether I have made myself clear on that matter, but the point is clear to me at least; and for the reasons I have given I prefer the substitute offered by the gentleman from Weber in the first instance to any other proposition.

Mr. VAN HORNE. Mr. Chairman, I simply wish to state that the reason I drafted the substitute in the form that I did, was that I understand that as far as the labors of the judiciary committee have progressed, they have determined upon district courts and county courts, or courts that would bear that name properly. I simply call them superior courts. The members of the judiciary committee seem to have concluded that misdemeanors should be tried in the lower courts, that felony should be tried in the district courts. The objection that I had to the original substitute offered by Mr. Evans, was that it provided for a jury of any number less than twelve which would not be, in my opinion, providing for a number of twelve, and it provides also for a majority verdict in civil cases instead of concurrence of two-thirds of the jury. The system as it had been outlined by the judiciary committee, was to carry as far as they could to the Convention the idea of the jury in the district court, which would be one of general jurisdiction in civil cases, of nine,

in the inferior court or county court of six, in the justice's court of three, in each case a verdict to be found by two-thirds; and it was in reply to that that I drafted the amendment.

Mr. EVANS (Weber). Mr. Chairman and gentlemen of the committee, I am pleased that the committee is considering this important question with so much patience. It is not a waste of time to calmly and deliberately consider the question and pass upon it with intelligence. It is one of the questions which will come before this Convention, not only in the item of expense, but also upon the question involving the policy of reducing the number of the time-worn jury. But there are some heresies, I take it, in the position taken upon the question of the number that a jury should contain in the trial of civil cases. My genial friend and associate from Salt Lake, Mr. Pierce, stated in his argument against the proposition of reducing the number of jurors, that he believed in standing by precedent, and not overturning a jury which has been established and which had existed from time almost immemorial. I desire to call attention to the fact, gentlemen, that the jury system was not always composed of twelve men. We go back as far into history as we can reach, and we find according to very imperfect history, that in the beginning, when civil differences existed between individuals, or when the person in the locality was charged with an offense in violation of some rule or law, that the sort of jury which tried those questions was the whole community assembled together in mass meeting, who, after consideration, determined the fact alone, first, as to what the result should be, and second, proceed to pronounce judgment. As civilization ruled and the population increased and business interests advanced, it became necessary and expedient to select a less number, and to reduce this question more to legal science. So we find in the days of Greece at the time of Pericles a jury of six thousand people were summoned upon the panel, and they were divided into lots of ten_drawn by lot, and a jury of five hundred people set upon the question of determining the guilt or innocence of individuals or civil difference which existed between {286} individuals, It was found later along the practice in Northern Europe that three times twelve should constitute a jury, making a jury of thirty-six. Later along that number was reduced to twelve, but it varied owing to the particular locality where the administration of justice was carried on. There was no particular number in any, particular place only at particular times and under particular circumstances. Now, the gentleman says, let's follow precedents. Is it his idea that this precedent which I have mentioned should be followed, and the whole community should be gathered together as it was originally in the primitive condition of man, for the purpose of trying civil and criminal cases? If we are to adhere to these old time-worn institutions, why abolish the community as a jury, or we desire to recede from that point to our advanced condition and the great business interests surrounding us, then why not go up a step further in history and have a jury of five hundred people, and if we desire to abandon that, why not then accept thirty-six?

But a long, long time ago, a jury of twelve had been decided upon. The particular reason why a jury of twelve was instituted in civilized nations, is something that I am unable to account for. I have searched for it, and I find no particular reason. It was stated, however, by the gentleman from Summit that the twelve jurors, as I understood him, were constituted because of the existence of the Twelve Tribes. Well if that is true, it is suggested by a friend on my left, that ten of those tribes have been lost. [Laughter]. If that be any particular reason why twelve should continue then the fact that ten of the tribes have been lost, why not abolish ten of the jurors and have two? Although I would not go so far as that. I only cite these things, gentlemen, for the

purpose of showing how it is that through the ages a custom grows up, and having grown up and having been cherished by the people, it is denominated as one of the great bulwarks of liberty of the citizen, and so far as I am concerned, I believe the jury system yet to be one of the bulwarks of human freedom and liberty, which ought not, under any circumstances, to be abolished. I would not have any gentleman believe or entertain the thought that I am one of those who believe in the abolishment of the jury system. We only go to this extent. We see in the substitute that a jury of twelve shall continue inviolate in criminal cases amounting to felony. That is all the substitute means, but in cases of misdemeanor_in the inferior courts only a jury of six or of three as the case might be. The only difference, gentlemen, that this amendment makes the only innovation upon the system in the trial of civil cases in courts of general jurisdiction. The jury system is preserved; it is inviolate; the Legislature under this substitute cannot abolish it. It is beyond its power to do it. But we say that while we hold it inviolate, we are willing that the number of twelve should be reduced to nine. That is all there is in the proposition. I have yet failed to hear any reason why this reduction should not be made.

The gentleman from Salt Lake tells us that the statutes of the Territory provide for boards of arbitration. That is true_quite true, and he says that few people resort to the privilege accorded by the law. Quite true, and yet a notable case exists wherein the people of Salt Lake County, the canal companies and city were in civil litigation with the people of Utah County, claiming an overflow of their land by obstruction placed in Jordan River, and the parties exercised their good judgment and good sense by referring that complicated difficulty to three laymen who, no doubt, before the thing shall have terminated will render satisfactory judgment. Here was a case where tens of thousands of people were upon either side of the controversy. In order to avoid the trial {287} by jury of numerous cases and the expenses, they sought a smaller number of men. I have known this thing in many instances, and I reiterate now, as I repeated yesterday, two gentlemen having civil differences between themselves, no neighbors having civil differences between themselves, would ever dream of selecting even nine men for the purpose of determining that difficulty. Especially would that be the case if those people having these differences were required out of their own pockets to compensate their arbitrators.

But this sacred right of trial by jury of twelve men has taught us that it is a number that should sit upon each particular case_some superstitution or mystery thrown about it, some sort of halo which sanctifies it, and another thing is that the public treasury must pay the expenses of these men who are called to settle our difference. There are fifty men to-day in attendance upon the third district court in the very city where we hold this Convention. The juries are running, and usually there are a larger number than that. We usually have panels of about thirty-six for each court. It would not be an unreasonable number if to-day eighty trial jurors were in attendance upon those two courts, and in many instances we have in addition to that fifteen men sitting as a grand jury. Take the number fifty, and a fourth, we have twelve and a fraction over, $2 a day, amounting to $24 a day in these two juries alone, and in addition to that there is their mileage. I estimate, from some little experience that I have had in the courts with this system, that but a small innovation as this, it will save to the people of the new State at least $70,000 per annum, or $700,000 in a period of ten years. I think my estimation will come far under the amount which will be saved, and the future will demonstrate whether I am right or not. No, gentlemen, it is not the intention to abolish the jury. I will go a little step further than this if I thought it were the

temper of this Convention to do it. I see no reason and believe that none can be furnished, why a smaller number of jurors would not be adequate in a criminal prosecution, but I know the temper of the Convention. I have undertaken to canvass it in a spirit of unselfishness; I have consulted with number of minds in this committee and outside of it, for the purpose when making this step in the walk of progress that no mistake should be made.

I do not believe that this committee would agree if any more radical step were taken than that proposed by the substitute. My friend from Salt Lake, Mr. Varian, fears the entrenchment upon the body politic of powerful corporations, whose tentacles might reach out and suck the life- blood of the citizen. I will guard that as carefully and as jealously as will he. I will not consent that the jury shall be abolished either in civil or criminal cases. This money power, this corporate greed, if permitted, would spawn mischief among the people, and would take away from them in many instances those inalienable and indefeasible rights which are dear to every free man. But, gentlemen, this is not a step in advance which will put ourselves within the jaws of corporate power. If it were, and if I believed it to be, I should be the last man on earth to ever advocate its adoption. My whole heart, my life, my thought, have ever been with the thoughts of the gentleman upon this proposition, and I believe it is the best thought and the sentiment of the age. But permit me to say, and believe it, I am willing to predict it, if this small step be made in advance which we now propose by this substitute, the people of Utah will never retrace their steps in that direction. It will be an example which will be followed not alone by our successors, but it will be followed by other states, eventually by the nation, and long {288} after we are interred perhaps, it will become international. The idea in itself of the correct number of jurors is not tenable to the efficient administration of justice. I have sought to learn the reasons, gentlemen, why this particular number should be retained. The gentleman from Salt Lake, Mr. Pierce, has furnished a reason_that we want a diversity of opinion. Would we not have a diversity of opinion with nine as well as twelve? The old idea has been twelve men with a unanimity of verdict, the idea, I suppose, is to have a diversity of opinion for the purpose of arriving at a unity. I believe in retaining a jury system, and believe in selecting them from the laymen. I believe it is the bulwark of our liberties, and if any gentleman can convince me that those liberties or interests of the people will in any degree suffer, I shall at once recede from the position which I have taken. I have been schooled in this idea of twelve jurors, gentlemen, the same as many of you. History and tradition has taught it to us all. Mankind are working to give up their traditions and their education, their feelings upon any particular subject, but they do it_the world advances. and especially does this western country advance, not only in population and material wealth, but intellectually. It advances also in the science of civil liberty and of governments, and I believe this Convention will take this step in advance.

Mr. WELLS. Mr. Chairman, I move that the committee now arise and recommend to the Convention that section 10, with all the proposed amendments thereto, be referred to the committee on judiciary, with instructions to report a section which will be satisfactory to the majority of that committee as speedily as possible.

The CHAIRMAN. A motion to refer in committee of the whole is not in order.

Mr. WELLS. That the committee recommend that that be done. I am not asking that it be done in


Mr. EICHNOR. Will you withdraw that for one second?

Mr. WELLS. Yes.

The CHAIRMAN. Gentlemen, it is impossible to extend the time.

Mr. EICHNOR. I would like to ask unanimous consent to introduce another amendment.

The CHAIRMAN. By unanimous consent we cannot extend the time. The time is up.

The committee then arose and reported to the Convention, as follows:

The committee of the whole reports that they have had under consideration the preamble and bill of rights and reports progress.

The PRESIDENT. What is the further pleasure of the Convention?

Mr. THURMAN. I move we resolve ourselves into committee of the whole for the further consideration of this business until 6 o'clock.

The motion was agreed to and the Convention then resolved itself into committee of the whole, with Mr. Squires in the chair.

Mr. EICHNOR. Mr. Chairman, I would ask unanimous consent of the committee of the whole to introduce another amendment or substitute, whatever you might call it.

Mr. EVANS. I yield the floor for the motion the gentleman desires to make.

Mr. VARIAN. I object for the reason that it simply serves to confuse. We can vote on these propositions. In the event of a certain one that I have in mind, a substitute being adopted which will dispose of all, the gentleman can then have another opportunity to still further amend it, but we are getting confused; there are four now. That is the only reason.

Mr. EICHNOR. That is all right. If you object. Some day I might have an opportunity to object.

Mr. EVANS (Weber). Gentlemen, I desire to recur again just for a few {289} moments to the question of our disposition to adhere to the precedent. I would not do this were it not for the fact that I know it is going to be difficult to dislodge in the minds of the members of this committee the idea of a less number of jurors than twelve. If we are to follow the idea of precedent, we would not to-day be enjoying that civil and religious liberty which we have. Would the Stars and Stripes be floating proudly over a Republic? Or would we be living in tribal conditions, where might may be right and where queens and monarchs issued their edicts for the control of the people. Would we have representative government at all? It seems to me, gentlemen, that in

considering this question of precedent we ought to consider it in the light of reason, in the light of the age, and if the precedent cannot be disposed of or abolished retain it, but if no good reason can be given why it should not be changed, and ample and sufficient reasons given why it should be changed, then why not change it? If we want to follow precedent, we might go back into the dark ages and review the method by which testimony was secured against individuals charged with crime. And we might hitch two-dozen plowshares, place them a foot or eighteen inches apart, and require the accused to strip his feet bare and walk across from one end to the other, and if his feet were burned and tortured he was not guilty, but if he escape such punishment, then he was condemned as guilty, and was required to be punished anyway. He might be thrown into a pool of water for the purpose of determining his guilt or innocence, if he floated on the water he would be considered as guilty, if he sank and drowned he would be innocent; or we might resort to a more modern means of securing evidence, which has been practiced in more civilized nations, applying the rack or thumb-screw to the inquisition, if precedent is what we want. But, gentlemen, I only speak of these things, for the purpose of calling your attention to what has been. The catalogue is too long to pursue it further. Let us consider our interests to-day in the light of reason, in the light of common sense and experience, and the surroundings under which we are living, and then determine in this important question what is right. I wish we could go a little further and still not destroy this bulwark between the individual and the state. Perhaps we will take a step further some other time, but, gentlemen, let us try it now. There can be no serious results following from this action. A constitution is something that is always amended by the people, difficult it is true, in many instances, and it ought to be difficult that if this system be shown to be fraught with dangers as the people say, the people are intelligent, the people are awake to their own interest, they have the right to alter or form their government and institute a new one and correct any faults which might exist by reason of their predecessors. I am honest about it, and believe it is right, or I would not advocate it. It is in the interests of economy; it is a step in advance. The law writers of the age are advocating it, intelligent thinking men are talking about it, and I should be proud of the fact if Utah just entering into the galaxy of our Union should take, or would take, the first step in this direction. I would be glad to see the example of Utah followed by other states, and let people understand that we are alive to our duties and sensible of the responsibilities which we have assumed. Thank you, gentlemen, for your attention.

Mr. SMITH. Mr. Chairman and gentlemen of the committee, I presume that there is no question in the mind of any gentleman upon this floor as to the sacredness of the institution of the jury. All of us have grown to manhood under it, and have looked back through the {290} history of the past and rejoiced in it. But we are confronted with the proposition at the present time of great consideration to us as a body of citizens. We seek to establish a new commonwealth. We recognize the fact that the people of the commonwealth are limited in number and limited in means; and while some of us perchance, may have views in our minds that it would be a wise thing to do away entirely with the jury system, still, I believe, that the majority here present are convinced in their own minds that the people of the proposed new State would not tolerate this proposition. Every man can readily see the immense expense attendant upon our courts at the present time if continued would render it impossible to conduct the new State and furnish the means requisite to supply the wants and means of our courts as well as the other departments of government. The purpose, as I understand it, in these proposed amendments, is not striking away

or doing away with the jury system, but in making that proper provision that a wise and prudent people can exercise or permit to be exercised, the right of trial by jury, and that it shall be limited in form so that the State can properly and justly provide this requisite in government, that guards the liberties of the people, and at the same time guards them in another direction and preserves them from exorbitant taxation. I have been in favor myself of this jury system and the experiment of limiting it as far as practicable, and yet maintaining the proper dignity and respect that should be entertained for this sacred body. I realize that there are many of our people who would and have looked forward to the time when they when they can possibly come upon the jury, and secure to themselves the means to pay their taxes by serving in this capacity. But, gentlemen, we must consider possibilities within the reach of the people, and the power that shall be exercised in this direction. While we guard their liberties in this direction, we must guard their responsibilities also in providing means requisite to furnish the supplies by which this may be rendered within their reach.

So far as I am concerned, I am in favor of limiting the number of jury-men, and when I shall cast my vote it will be that we go below the number that has been in common use in the past and seek to limit them within proper lines that justice may be done, that this institution may be maintained and the rights and liberties of the people be guarded in this respect, which I believe it will be if the number is reduced from that of the experience of the past. It seems to me any further consideration of the problem is unnecessary. I believe that every man can recognize the fact that something must be done, or it will be impossible for us to establish a commonwealth and procure the means requisite for the sustainment of it in the manner every citizen should desire to see it maintained.

Mr. EICHNOR. I think this substitute of Mr. Evans should be voted down; I think the amendments offered by Mr. Van Horne should be voted down. Now, as I was refused the privilege of introducing my amendment I have a right to use it in my argument. I shall introduce it afterwards if the amendments are voted down. The right of trial by jury shall remain inviolate; we all agree upon that part, but in civil actions the jury shall consist of nine in district courts. Now, gentlemen, what is the use to leave this to the Legislature? Let us fix the number in the Constitutional Convention. The Legislature will wrangle over it two weeks; we are losing a great deal of time, we are spending here a great deal of money in talking about this matter. Let us do something. Let us not shove this work on the Legislature but let us fix it in our bill of rights. I am in favor of fixing it right here. Fix the number in civil actions in district courts or whatever {291} they may be called, at nine. The verdict in such cases to be rendered by concurrence of two-thirds of the jurors. A jury may be waived in civil actions and in misdemeanors by consent of both the parties expressed in open court.

Mr. THURMAN. Let me ask you a question. Cannot they do that without making a constitutional provision of it or making any law?

Mr. EICHNOR. Correct. But there must be some doubt in the minds of some members of the house, and I put that in as a safeguard to remove any doubt that might exist in the minds of the members_

Mr. EVANS (Weber). If you wlll permit me_I know that you want to get it right. The substitute which I offer provides that a jury shall be waived in civil cases, if not demanded, as the Legislature might provide. That makes a provision that unless a jury is demanded it is waived. That system is in effect now in New York, Michigan, and Tennessee, and in quite a number of other states, and I intend to speak about that. It is adopted in those states and the people are trying a vast number of cases before the courts, without resorting to the jury at all.

Mr. EICHNOR. I will read it again: “The right of trial by jury shall remain inviolate, but in civil actions the jury shall consist of nine in district courts, and in inferior courts of six, or less, as the Legislature may provide; a verdict in such cases, may be rendered by concurrence by two-thirds of the jurors. A jury may be waived in civil cases and in misdemeanors by consent of both parties, expressed in open court.” That fixes it in the bill of rights. We know exactly what we have. We know exactly what we present to the people; there can be no misgivings in the minds of the people when we present the Constitution for their adoption or rejection.

“In civil actions or misdemeanors the jury may consist of any number, less than the number fixed in this section.” I think that comes right down to the root of all this argument. Let us fix it in the bill of rights and fix it such a way that a Legislature in simple aberration of the mind will not endanger the jury system. I believe we ought to show something for our work, ought to show something for the time we are consuming here. Fix it right in the bill of rights, and we know what we have and no one can take it from us. All this talk about bulwark of liberty_what will be the bulwark of liberty in in Utah? The bill of rights will be the main spring of the liberty of this State, and I hope that every amendment will be voted down, and when the time comes I shall introduce this.

Mr. BOWDLE. The bill, as amended by Mr. Van Horne, does not meet my approbation. Neither does the one that was introduced by the gentleman from Weber. There is one trouble with the amendment as I see it introduced by Mr. Evans, that is this: It provides that in offenses less than a felony a person may be tried by a jury of less than twelve; the argument that the gentleman has made against a jury of twelve is broken in my opinion by his concession that in all criminal cases it shall be twelve. If it shall be twelve in all criminal cases of felony, why, if nine is so good, if nine be such an admirable jury, or any jury less then nine be such a great institution, why does he concede that when we come to try a man for his life, it shall be twelve. The very admission is that a jury of twelve is better than nine. He admits it when he makes that argument. I. claim that a man's liberty is not in jeopardy only when the doors of the penitentiary may stand before him, or when his life is at stake. His reputation might be just as sacred, or more sacred than his life. I believe that when a man is on trial for any crime he should have a fair and impartial {292} trial by a jury, as the gentleman concedes the best jury, that is a jury of twelve, and for that reason I am not in favor of that amendment. I am not in favor of a sliding jury system. I believe we ought to know what kind of a jury we are going to have. If we are going to have a jury of twelve men, let us have a jury of twelve, and not leave it to the Legislature. If we are going to have a jury of nine, let us say so, and not have a jury this year of nine, and the next Legislature that meets thinks that is not quite good enough and they make a change, saying we have a jury of twelve. We have a jury of twelve for two years. The next Legislature comes along and says that it is too much expense, let us cut it down to eight, or six, or five. People rebel against it and you keep going

back, and from that one thing to the other all the time, and you do not know where you are. Gentlemen, let me ask you this question. Solve it each one for yourself; if you had grave property interests at stake would you prefer to have a jury of eight, a jury of twelve, or a jury of four? On general principles, everything else being equal, there is not a man in this house, I do not believe, even the gentleman that has argued that the jury system should be cut down, but would say I will take the largest number you give me. Why? Because he feels that in that his interests are more nearly protected than in the smaller number. He feels that the opportunities for the other side to come around and work the jury, are not so good. Therefore, I am not in favor of cutting the jury down to a smaller number.

I can see my way to vote for a jury of nine, but as I now see it, I cannot consent to vote to give it into the hands of the Legislature, to make it any number less than that. Nor, am I in favor of referring it to them to fix any number.

I say let us fix it here now and settle that matter. Why, says the gentleman, we are progressing. Yes, it has taken
five hundred years to come from a jury of twelve down to have this Convention say that a jury of nine will do. If it takes five hundred years to come from the idea of twelve down to nine, I think we can safely fix it at nine and rest easy there for a time at least. We are not going to grow so rapidly at that ratio, that we will need to have a jury of five or six in the age of the gentleman that has just been speaking. One thing further on that same thing. It is said that it is a great saving of expense_a great saving of expense. The gentleman told us yesterday that the jury system in this Territory cost $45,000, a saving of $10,000 or $11,000 a year. There are cases tried every day in the year in this Territory where the verdicts that are asked and sometimes received are far beyond that sum. The paltry expense would not be of any consideration when we come to the weighty importance of the subjects that would be before these juries. Here is another thing, Wheneven the people grow tired of the jury system they will let you know by not trying their cases to the jury. They will let you know it by trying it to the court, and whenever the jury system begins to go out of use and lose its popularity with the people you will find that they will speak and they will speak just in that way. How many cases are there now tried to the courts that could be tried by a jury?

In a whole term you can almost count them on the fingers of your one hand. What does that mean? It means simply this, that the people have more confidence in the opinions of their fellows, with whom they are in direct touch and sympathy, than they have in the courts. The jury comes right down side by side with the litigant. They are in some sense in sympathy with the litigant, not in an unfair or undue sense, but they know more nearly his wants, they know more nearly what the justice that is at stake fs [*note*]. Very often a court gets this kind of an idea. He starts out a {293} little bent in one direction, and all earth and heaven cannot turn him from that bend and he goes right on in that direction. The idea of the jury is, you have twelve men there, or whatever number you decide upon. Those twelve men will look at the thing from as many different standpoints, whatever their number may be, and you will not get the prejudice either for or against that you will in one unfair man upon the bench, and you cannot say with all due deference to the courts that they are at all times fair. And that is the feeling of the people. The feeling of the people is, we cannot always trust them_as you increase the power of the court, you

increase the feeling in the minds of the people. Therefore, I am in favor of fixing the jury at not less than nine, and giving the man a chance to be tried by a jury of twelve whenever he is accused of any crime in a court of record.

Mr. GOODWIN. Mr. Chairman, I will detain the committee but a moment. My heart is touched by the views I have heard expressed here on this subject. The gentleman who last spoke has informed the committee that almost all the cases in court were tried by juries. Why? If he had a case in court that he knew was a just case, he would a great deal prefer to have the judge try it; if he had a client that was a rogue and a case that was not just, he would want a jury, and would want just exactly such a jury as the laws in this country provide for. Men that never read the newspapers; if they in the box declare that they, three or four or five months before, they read an account of a thing, and they think they have an opinion, that is enough. That is, the law offers a premium on utter stupidity for jurymen. And that being so manifest, it was not the sense of the judiciary committee, including myself, and holding the views I do and have for a long time, to continue it as it was. Speaking about precedent, I read the other day, where the Japs took a great fort of the Chinese, and they killed all the men, women and children. They were following precedent the same as their fore-fathers and men indulged in. And on the shores of Africa, they have a fashion in times of great drought of taking little children, little girls preferred, down, and driving stakes at the mouth of the river and tying the children to them, and let them be drowned by the tide when it comes in to propitiate the waters and get a rain, and when the missionaries tried to break it up, they, with just as much persistency and enthusiasm as my friend from Salt Lake argued, were asked that they should not interfere with the precedent. [Laughter.] There is no sacredness in the ordinary jury. The utility of the system has been, in great part, put aside. The only thing is, that a rogue can be tried by a jury of his peers.

We are told that the institution is so time-worn that no new state coming into the Union has dared (or only one or two have dared) to change the the system. Why? Simply because some gentleman has got up and assured the Convention that it would not be following the precedent, which would be dangerous. Let us set the example, and if we will put here in this bill of rights the fact that we believe a jury of nine is as good as a jury of twelve, there will never another state be admitted that won't have the same in their constitution. We are told by this gentleman, my friend from this city, that even in the constitution of New York, that has just been revised, they have left the old number. Why? In the first place, New York is a great empire in itself, exceedingly rich, and the expense of juries does not count for much in the aggregate taxes. But there is another reason; nearly every man in that convention was a politician and he had followers, and those men look on juries as a place to pay political debts. And you go to New {294} York, or any other large city in this country, and go to the court house and look at the men who are jurors, and you will find that they are almost entirely composed of heelers or politicians. And when they can get two dollars a day to sit on the jury, it saves the politicians paying two dollars out of their own pocket. They sit there until they get tired, waiting for a chance to get on the jury. It is said that those advocating this would, if they could, do away with the juries. Mr. Chairman, I answer frankly, that if this young State which is coming in, was financially rich and could afford to pay one gentleman as chief justice, schooled in his profession, and two associates worthy to sit with him, I would prefer it to all the juries in the world. I believe there is less corruption, I believe there is less chance for a judge who has a place that way, who has a fair salary, to be corrupt than there is of corrupting

twelve or twenty-four men who sit around courthouses to get a job at two dollars a day, sitting on the jury.

Mr. ROBERTS. Mr. Chairman, I presume that a proper respect for the learning and deep understanding of this question, that gentlemen of the legal profession profess, requires that laymen should listen in silence to this discussion; and it may be looked upon as a somewhat venturesome undertaking for one who has not had the training that these gentlemen have who have spoken upon this proposition, to undertake to discuss it. But I shall take my chances in that venture, so that the gentlemen of the legal profession and my fellow laymen may understand how this question appears to a layman. I should almost be discouraged in the long delay we are having over this bill of rights, if I were not sanguine that the labor now performed is not to be lost. Because while we are carrying on this discussion under section 10 of the bill of rights, I take it that we shall not find occasion to go over this ground in discussion when the capital committee on judiciary shall present to us their article concerning the judiciary. I would just as lief discuss these questions under the bill of rights as under the report of the judiciary committee; and we are settling in this discussion our convictions in relation to the doctrines pertaining to a trial by jury, and therefore, I think we are making progress, although we seem to be delaying in passing the section of the bill of rights. I make these remarks, Mr. Chairman, in order that the gentleman from Salt Lake on my left who proposed that this whole subject be taken from the committee now and referred to the committee on judiciary will reconsider that proposition of his, for the reason that I believe gentlemen in this committee have about arrived at the conclusion that they wish to express upon this question, and to take it now, that we are about to settle what course this committee and this Convention shall take on this jury system, I think it would be waste of time to throw it back now to the committee on judiciary when we are so near ready to settle upon it. In the interest of saving time, too, I hope that the gentleman from Salt Lake upon my right, who proposed to fix in the Constitution itself, the number of jurors without referring the matter to the Leg-lature [*note*], will also for the present withhold such an amendment, and let the committee come to a vote upon the principles that have been under discussion, and then by amendment fix the number, if that be the mind of the committee. I make this remark too in the interests of economizing our time. And now, sir, with these preliminary remarks, I shall pursue my venturous course in coming to the discussion of the main question at hand. To understand the present status of this question under discussion, the amendment offered by the gentleman from Salt Lake, Mr. Varian, to the original proposition of Mr. Evans, would read as follows:
“The right of trial by jury shall remain inviolate, but the Legislature may provide for a verdict by nine or more in civil cases, and for waiving the jury in civil cases where the consent of the parties interested is given thereto in open court,” So that the force of this proposition by the gentleman from Salt Lake would mean, as I understand it, a jury of twelve in all cases, but that a verdict might be rendered by nine, and that in civil cases a jury may be waived by consent of the parties interested, provided it shall be waived in open court. The preposition of Mr. Evans as it now stands is that the right of trial by jury shall remain inviolate, but the Legislature may provide a less number of jurors than twelve in prosecutions below the grade of felony. And in civil cases, a verdict in such cases may be found by a concurrence of two-thirds of the jurors, and the jury shall be waived in civil cases if not demanded, as the Legislature may provide; provided, that a jury in the district court shall not consist of less than nine, and a jury in the county court shall consist of

not less than six, and a jury in the justice court shall consist of not less than three. The main difference between these propositions is, that in cases below felony the jury may consist of less than twelve.

The CHAIRMAN. Just a moment, Mr. Roberts; you have lost sight of another proposition that is before the committee; the proposition of Mr. Van Horne, of Salt Lake.

Mr. ROBERTS. That comes in as I understand it as an amendment to the amendment.

The CHAIRMAN. As a substitute for the whole.

Mr. ROBERTS. I was remarking, Mr. Chairman, that if I may judge from the course of discussion upon the floor of this committee, that substitute has not found very much favor, and if I may judge by the course of discussion I think the committee will settle upon and choose as between the amendment to the amendment offered by the gentleman from Salt Lake and the substitute offered by the gentleman from Weber; and believing that_and by the way, I wish to cast no reflection upon the proposition made by the gentleman from Salt Lake, Mr. Van Horne_but believing that, I confine myself to a discussion of these two propositions, believing that the committee will make a choice as between those two. I, in common with gentlemen upon this floor, have learned to venerate the jury system, the origin of which seems to have been lost in the twilight of history, so completely that it cannot plainly be discerned, and long ago I learned to entertain a respect for those customs, which have been established for so long a time that, the memory of man learneth not to the contrary, and I am willing to look upon them since they have survived all the struggles and vicissitudes of the past as the crystallization of the wisdom of antiquity, and, gentlemen, in view of propositions that are already foreshadowed in this committee, I have admonished myself to guard very carefully from any departure from customs, but I am not so wedded to the customs of the past, to precedents of the bygone ages, as to refuse absolutely to give them up, if a good and sufficient reason can be given why a change should exist or should be inaugurated; and I believe that in this discussion such reasons have been given, and therefore I shall vote to accept so much of an innovation upon the time-worn jury system as is proposed by the gentleman from Weber. I notice that that innovation is very slight and carefully guarded in the greater crimes of which men may be accused. I understand that the old system of jury trial is guaranteed, and only in cases below felony and in civil cases is the slight innovation proposed, with the exception of those cases that may come up in county {296} courts and before justices of the peace. I am not so indifferent to the saving of expense to the people of this Territory for the government we propose to give them_and while, if there is one department of the government that we propose to change, I would feel more liberally disposed than to another, it would be the judiciary system. I am willing to cut and shave every other department of the government in the matter of appropriations to sustain it. I say, I am willing to cut and shave the revenue of every other department of government more closely than this one. And, sir, I believe in contemplating any policy of economy with reference to this department of government, we ought to take into account the fact that in the new State we will abolish the fee system, so far as those fees go to the officers who charge them, and have the fees go to the coffers of the State, and pay the officers a salary for their services, a policy which will save to the people of this State. And then I would be willing in view of this to be all the more liberal to the judiciary system that

we will establish. But if it can be shown, as I think it has been shown in this case, that even the expense of the jury system can be cut down to the amount of $15,000 or $17,000 per annum, it is an item not to be slightly passed over. And, therefore, in the interest of economy, and believing that the liberties of the people shall not be endangered by the jury system as thus put down, I shall most assuredly support the substitute that is offered by Mr. Evans, of Weber, and then after the principles contended for shall have been accepted by this committee, as I believe they will be, I am ready to join that, gentlemen, but wish to fix definitely the number of jurors in these specified cases, and complete this work which I believe can be done in a very short time.

Mr. VARIAN. Will the gentleman permit me to question?

Mr. ROBERTS. Certainly.

Mr. VARIAN. Where does he get any such figures in the reduction of expenses as $17,000 per year, by cutting down the jury in misdemeanor cases and civil cases by three or four jurors. It seems absolutely impossible to me.

Mr. ROBERTS. In answering the gentleman's question, I must rely upon the investigations and conclusions arrived at by my friend from Weber County as I myself have made no computation, but I accept his computation upon it. I am glad the gentleman asked the question for the reason that it will enable me to point out wherein I think the system can be less expensive. There is at least, in the first place, one-fourth, if you cut down in civil cases to nine, of the expense cut off by the adoption of this system in the matter of salaries to the jury direct. But I apprehend that the saving to the people of this State will consist in this: First, in the saving of time, because I believe that nine men can more quickly unite upon a verdict than twelve men can. It is in that direction that the saving will come to the State. Then again, they are more likely to unite, there is less danger of having what the profession calls a “hung jury,” I suppose, where we have nine than where we have twelve; and in the saving of time in lessening the probabilities of having juries disagree as well as in the matter of saving at least directly the salaries to the men of one-fourth of the aggregate, there will come, I am of the opinion, a considerable saving to the State, and I don't believe that the gentleman from Weber has miscalculated the amount that may be thus saved to the people.

I thank the committee for listening so patiently to the remarks of a layman on this subject.

Calls for the question.

Mr. Van Horne withdrew his proposed substitute.

The substitute offered by Mr. Evans was adopted.
The committee then arose and reported to the Convention as follows:

The committee of the whole having had under consideration the preamble and bill of rights still reports progress.

The President appointed Messrs. Hill and Adams as additional members of the committee on schedule, future amendments and miscellaneous, and Mr. Thoreson in place of Mr. Thatcher on the committee on taxation, revenue and public debt, and also on the committee on compilation and arrangement.

The Convention then at 6:20 o'clock p. m. adjourned.

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