son, Craig, Cronmiller, Curry, Cuyler, Ross, Runk, Smith, Henry W., Smith, Davis, Dodd, Dunning, Ellis, Ewing, Fell, Wm. H., Stanton, Stewart, Temple, TurFinney, Fulton, Funck, Green, Hall, Har- rell, Van Reed, Wetherill, J. M., Wethvey, Hay, Heverin, Horton, Hunsicker, erill, John Price, Wherry, Worrell and Knight, Landis, Lear, Lilly, Littleton, Wright-72. Long, MacVeagh, M'Camant, M'Culloch, Metzger, Mitchell, Palmer, H. W., Parsons, Patterson, T. H. B., Purviance, John N., Reed, Andrew, Reynolds, Rooke, So the motion was agreed to, and at ten o'clock and forty minutes A. M. the Convention adjourned till Monday at halfpast nine o'clock A. M. ONE HUNDRED AND FIFTY-THIRD DAY. MONDAY, September 29, 1873. The Convention met at half-past nine o'clock, A. M., Hon. John H. Walker, President, in the chair. The Journal of the proceedings of Friday and Saturday last was read and approved. LEAVES OF ABSENCE. Mr. HAY asked and obtained leave of absence for Mr. W. H. Smith for a few days from to-day. Mr, PATTON asked and obtained leave of absence for Mr. Horton for a few days from to-day. Mr. GUTHRIE asked and obtained leave of absence for Mr. Curry for Saturday last and to-day.; REPORTS OF REVISION COMMITTEE. Mr. D. W. PATTERSON. I am directed by the Committee on Revision and Adjustment to report the article on the Judiciary and also the article on Impeach ment and Removal from Office. Under a general order heretofore passed, the reports of the committee are directed to be printed. I will state that we have had these reports printed, and I suppose they will be ready sometime to-day for the use of the Convention, if it should get through with other business. The reports were laid on the table. BILL OF RIGHTS. The PRESIDENT. The next business in order is the further consideration on third reading of the article on the Declaration of Rights. When it was last under consideration, the question was on the motion of the delegate from Indiana (Mr. Harry White) that the Convention resolve Mr. D. W. PATTERSON. The question is simply whether we will go into committee of the whole or not. Mr. BROOMALL. The yeas and nays have to be taken over again, do they not? The PRESIDENT. Certainly they do. Mr. LAWRENCE. Before the vote is taken, I would like to make an inquiry. I think there is a majority of this Convention who would be willing to put Bill of Rights, although they do not desomething like this proposition into the sire to do so in the exact language in which it is framed. MANY DELEGATES. "Question." "Question." Mr. LAWRENCE. I merely want to make an inquiry, and suggest that if we now go into committee of the whole, we shall have to adopt the proposition as it is introduced or else to vote it down. Mr. SHARPE. We are not going to put it in. The PRESIDENT. The yeas and nays will be again taken and the Clerk will proceed with the roll. The CLERK proceeded to call the roll. Mr. LILLY. [When his name was MacVeagh, M'Camant, M'Culloch, Metzcalled.] Listening to what what read, I desire to state that I do not know how to vote. If this means female suffrage, I do not want to vote for it. If it does not, I do. Does it mean female suffrage? MANY DELEGATES. Yes. Mr. BROOMALL. It does not mean female suffrage. Mr. LILLY. If it means female suffrage, I want to know it. ger, Niles, Palmer, H. W., Parsons, Patterson, T. H. B., Purviance, John N., Reed, Andrew, Rooke, Runk, Simpson, Smith, William H., Stanton Stewart, Turrell, Van Reed, Wetherill, J. M., Wherry, White, Harry, Worrell and Wright-66. The PRESIDENT. The question recurs on the final passage of the article. Mr. DE FRANCE. I move that we go into committee of the whole, for the pur The PRESIDENT. How does the gentle- pose of making section six read as fol man vote? Mr. LILLY. I do not know how to vote. The PRESIDENT. The Clerk will call the name of the gentleman from Carbon. "Mr. Lilly." The CLERK. lows: "Trial by jury shall remain inviolate." Mr. President, if I can get the attention of the House, I will state the reason why I propose that we shall go into committee Mr. LILLY. Does this mean female of the whole for this amendment. suffrage? Mr. BROOMALL. It does not. MANY DELEGATES. Yes, it does. Mr. LILLY. I vote "aye." The CLERK proceeded with the call of the roll, which was completed with the following result: YEAS. Messrs. Armstrong, Baker, Beebe, Bowman, Broomall, Calvin, Campbell, Darlington, Edwards, Ewing, Hanna, Hazzard, Howard, Lawrence, Lear, Lilly, Littleton, M'Michael, M'Murray, Mann, Mantor, Newlin, Patterson, D. W., Porter, Purviance, Samuel A., Russell, Wetherill, John Price, White, David N. and White, J. W. F-29. NAYS. Messrs. Achenbach, Baily, (Perry,) Barclay, Biddle, Bigler, Black, Charles A., Boyd, Brodhead, Carey, Carter, Corbett, Curtin, Dallas, De France, Gilpin, Guthrie, Hay, Hunsicker, Kaine, MacConnell, M'Clean, Minor, Mitchell, Mott, Palmer, G. W., Patton, Pughe, Purman, Read, John R., Reynolds, Ross, Sharpe, Smith, H. G., Smith, Henry W., Struthers, Temple, Woodward and Walker, President-38. The Supreme Court has decided that the word "heretofore" amounts to the same thing as "before," so that in regard to all crimes which have been created since 1776, all statutory crimes, it is not necessary (provided the Legislature do not so direct) that they shall be tried by jury. I want the Convention to understand just how this is precisely. If we strike out the word "heretofore," it will not change the trial by jury. The Supreme Court have decided this: "It is scarcely necessary to remark that a trial by jury means a jury of twelve men, who must unanimously concur in the guilt of the accused before a legal conviction can be had. No less number can satisfy the requirement in the Bill of Rights." It is necessary to have a jury of twelve men. That is a jury; the only legal jury; there must be twelve men. Now, is it necessary to preserve trial by jury for ali offences (except summary convictions) that are made by statute? That is the only question now before us. I will read what the Supreme Court has decided: "The Legislature may create new offences and prescribe what mode it pleases of ascertaining the guilt of those charged with them." So the motion was not agreed to. The Legislature may prescribe a new ABSENT.-Messrs. Addicks, Ainey, Al- mode of trial for all offences not triable ricks, Andrews, Baer, Bailey, (Hunting- by jury by Constitution of 1776. They don,) Bannan, Bardsley, Bartholomew, may prescribe a new mode, a different Black, J. S., Brown, Buckalew, Bullitt, mode from jury trial. Cassidy, Church, Clark, Cochran, Collins, Corson, Craig, Cronmiller, Curry, Cuyler, Davis, Dodd, Dunning, Elliott, Ellis, Fell, Finney, Fulton, Funck, Gibson, Green, Hall, Harvey, Hemphill, Heverin, Horton, Knight, Lamberton, Landis, Long, In the Mercer district we have a case in point under what they call the iron-clad law, and Judge Trunkey, in delivering the opinion of the court, said: "Below the grade of murder in the first degree, it is difficult to find any other crimo named in our statutes, where the maximum of fine or imprisonment is not fixed by law." In this case the maximum is not fixed at all by law. tion; it has passed through committee of the whole; it has passed through second reading; it has passed through the Committee on Revision and Adjustment, and I hope there will be an end to this kind of amendment. If the Convention are not satisfied with matter that has gone through five several revisions by competent bodies of this Convention, we shall never get through. Let there be an end Let me read what the minimum pun- of litigation, and let there be an end of ishment is: "Mercer county is favored with a singular exception. So highly penal a misdemeanor is no petty offence. As we have seen, it is not one created since the adoption of the Constitution," &c. "By this local act the minimum for the first offence is a fine of one hundred dollars, and for the second a fine of two hundred dollars and imprisonment for ninety days. The maximum is in the discretion of the court or a justice of the peace." Now, Mr. President, I merely mention this because it is a local law which is made very penal and the offence not triable by jury. Do we think that trial by jury is of enough account so that penal offences, except summary cases, shall be triable thereby, or do we think it safe to leave for futurity that question for thirty or forty years? Might it not be that the Legislature would make mistakes in this case? Might it not be in times of political excitement that there would be mistakes made? I have not the strength to argue this question fully, but I merely want to call for the yeas and nays on my motion, so that my protest may stand, for the question was argued very fully by the distinguished legal gentleman from Allegheny county (Mr. J. W. F. White.) He argued very fully the deficiencies of our jury system and showed them very clearly; but when little attention was paid to his very able and eloquent argument in this Convention on that subject, certainly I could hope to receive very little consideration. strife and discussion on questions of this kind. I suppose the gentleman desires to get in an amendment of this kind to suit Mercer county and nothing else. Mr. DE FRANCE. No, sir. Mr. KAINE. I hope we shall stand by the old landmarks as near as we can. Mr. Woodward. I think I understand the object of the gentleman from Mercer, and if he would bring forward an amendment that would really cover the ground, I do not know that I would object to it; but I do not like this present proposition. The word "heretofore" in this clause is a word of limitation. It limits the universal right of trial by jury; that it shall not be unlimited, but shall be "as heretofore." "Heretofore" to have a jury has never extended to chancery cases, and it has never extended to those summary convictions which the peace and welfare of society have often found to be necessary. We have a whole class of cases, such as violations of the Sabbath day, profane swearing, vagrancy, and divers offences that are disposed of by being brought before an alderman or justice of the peace upon view without a jury at all. Men are sent to the lock-up and punished more or less, fined or inprisoned without a jury at all. This has always been the practice of Pennsylvania. Mr. DE FRANCE. I should like to ask the gentleman, supposing this amendMr. WOODWARD. What is your amend- ment should be adopted, will not trial by ment? jury remain precisely as it is except as to Mr. DE FRANCE. I will ask that it be the limitation? read. Mr. WOODWARD. But I understand The PRESIDENT. The amendment will the gentleman proposes to strike out the word "heretofore." be read. The CLERK. In the sixth section it is proposed to strike out the words "be as heretofore and the right thereof shail," so that the section will read : "Trial by jury shall remain inviolate." Mr. KAINE. I hope the motion of the gentleman from Mercer will not prevail. This section has passed through one of the standing committees of this Conven Mr. DE FRANCE. I think the gentleman does not understand me yet. The Supreme Court has decided that the word "heretofore" means before the Constitution was made, and that is all it means. It does not mean anything about the mode of trial. Mr. WOODWARD. It means, as I understand it, that everything that was triable S., Brown, Buckalew, Bullitt, Calvin, by jury when our Constitution was first nan, Bardsley, Bartholomew, Black, J. adopted, shall remain triable by jury, but those offences that were triable by other means than juries before our Constitution are still capable of being disposed of in that way. I understand that to be about the force and meaning of that word. In that respect, it is a very essential word. It is one that we cannot afford to part with unless, indeed, we mean to say that all criminal proceedings, big and little, shall be before juries. If the gentleman means that and brings forward an amendment of that sort, that will be worthy of consideration; but unless we mean just that, unless we mean to take away from magistrates this power of summary convictions, the amendment ought not to prevail. Mr. DARLINGTON. It struck me when the gentleman from Mercer proposed his amendment that if we were to adopt it, we might hereafter find ourselves with a jury of three or five or seven or less than twelve as a constitutional jury, not such as we have heretofore had, but still a legal jury. I am opposed to that. I want it "as heretofore," a jury of twelve. The PRESIDENT. The Clerk will call the names of the delegates on the motion of the gentleman from Mercer (Mr. De France.) The question being taken by yeas and nays resulted as follows: YEAS. Messrs. De France, Guthrie, Lilly, Read, John R., Reynolds and White, J. W. F.-6. NAYS. Messrs. Achenbach, Addicks, Armstrong, Baily, (Perry,) Baker, Barclay, Beebe, Biddle, Bigler, Black, Charles A., Bowman, Boyd, Brodhead, Broomall, Campbell, Carey, Carter, Corbett, Curtin, Cuyler, Dallas, Darlington, Edwards, Elliott, Ewing, Hanna, Hay, Hazzard, Howard, Hunsicker, Kaine, Lawrence, Lear, Littleton, MacConnell, M'Clean, M'Michael, M'Murray, Mann, Mantor, Minor, Mitchell, Mott, Newlin, Niles, Palmer, G. W., Patterson, D. W., Patton, Pughe, Purman, Purviance, Samuel A., Ross, Runk, Russell, Sharpe, Smith, H. G., Smith, Henry W., Struthers, Temple, Wetherill, John Price, White, David N., Woodward and Walker, President-63. So the motion was not agreed to. ABSENT-Messrs. Ainey, Alricks, Andrews, Baer, Bailey, (Huntingdon,) Ban Mr. DALLAS. I move to go into committee of the whole for the purpose of offering to section ten an amendment, which I will indicate. It is to add after the word "property," in the eighth line, the words, "be injured or." Mr. NEWLIN. How will the section read as amended? The CLERK read as follows: "Nor shall private property be injured, or be taken or applied to public use without authority of law, and without just compensation being first made or secured." Mr. DALLAS. I am aware that the Convention is not unreasonably averse to going now into committee of the whole upon any amendment; but if there is anything upon which a large number of the members of this Convention can be induced to unite, it is in the opinion that wherever it is possible to attain a desired purpose and still to reduce the extreme length of our article, such reduction should be made. Now, in the article on railroads and canals, at page fifty-four of the printed pamphlet containing the articles upon second reading, we have section twelve in these words: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction." I believe that that entire section can be rendered unnecessary by the insertion of the three short words that I have proposed as an amendment to section ten of the Bill of Rights. The people of Pennsylvania have always looked to that section for the protection of their right of property against unjust exercise of the |