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THIRTY - EIGHTH DAY

___________

MONTGOMERY, ALA.,

Saturday, July 6, 1901.

The Convention met pursuant to adjournment, was called to order by the president, and the proceedings opened with prayer by the Rev. Mr. Patterson as follows:

O Lord, our Heavenly Father, we once more come into Thy presence and as we come we acknowledge that we are Thy creatures. That in Thee we live and move and have our being, and that without Thee we can do nothing. We are grateful unto Thee that Thou hast revealed Thyself as the source of all wisdom, and as willing to impart that wisdom unto those who come humbly unto Thee and ask for it, and we pray that Thou wilt make good unto Thy servants here today all of Thy promises, and that Thou wilt grant them that wisdom that cometh down from above. We pray that Thou wilt look upon us with Thy mercy and loving care. Pardon our sins and grant we may be led by Thy holy spirit in the pathways of righteousness, and that our lots may be cast in the pleasant places. Be with us during the hours of this day, strengthen us for every duty. Guide us in every undertaking, and at last when Thou has served Thy will with us here upon earth, receive us and own us as Thine in Heaven, and to Thy name, Father, Son and ever blessed Spirit, shall be the praise, world without end. Amen.

Upon the call of the roll of delegates 111 responded to their names.

Leave of absence was granted to Mr. Searcy of Tuscaloosa for today.

MR. WADDELL - I have a resolution which I wish to have unanimous consent to introduce, and I will ask a suspension of the rules and that the resolution be put upon its passage.


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The resolution was read as follows:

"Resolved, That this Convention remain in session until 2 o'clock p. m. today, and that it then adjourn until Monday."

MR. WADDELL- I move a suspension of the rules.

Upon a vote being taken the rules were suspended.

MR. SANFORD - I move to amend by inserting 12 o'clock Monday instead of 9:30, so there may be a quorum present.

MR. O'NEAL (Lauderdale) - I move to lay the amendment on the table.

Upon a vote being taken the motion to table was carried. And upon a further vote the resolution, as read, was adopted.

MR. MERRILL - I have a resolution.

Ordinance No. 412, by Mr. Merrill:

An ordinance relating to the bonded indebtedness of the State-

Be it ordained by the people of the State of Alabama in convention assembled:

That an act of the General Assembly of Alabama, entitled "An act to consolidate and adjust the bonded debt of the State of Alabama," approved February 18, 1895, and an act amendatory thereto, entitled "an act to amend Section 6 of an act to consolidate and adjust the bonded debt of the State of Alabama," approved February 16, 1895, which said last named act was approved February 16, 1899. Be and the same are hereby made valid. The Governor is authorized and empowered to act under the same and carry out all the provisions thereof.

Referred to the Committee on Amending Constitution and Miscellaneous Provisions.

MR. O'NEAL - I have a resolution.

Resolution No. 226, by Mr. O'Neal of Lauderdale:

Whereas, This Convention has shown its ability to limit the debate, taxes and municipal indebtedness, but seems utterly powerless to limit the heat, and

Whereas, There seems to be a strong limitation upon the prospects of this Convention reaching the snowy summits of Monte Sano and

Whereas, we must remain for a time beyond which the memory of man runneth not to the contrary, in this hot but classic hall,

therefore be it


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Resolved, That the Sergeant at Arms be instructed to place two additional fans in this hall.

Referred to the Committee on Schedule, Printing and Incidental Expenses.

MR. WHITE - I would like to amend that by knocking out the preamble and putting in two more fans.

MR. O'NEAL (Lauderdale) - I would accept the amendment.

"Resolution No. 227 by Mr. Sentell: "Resolved, That the rule of this Convention as embodied in resolution No. 184, be amended so as to read as follows: That from and after the passage of this resolution, no per diem will be allowed to the delegates of this Convention who are absent, except those granted leave of absence on account of the sickness of themselves or members of their family, or other good cause."

Referred to Committee on Rules.

MR. SPRAGINS - I have a petition which I ask to be read and referred to the Committee on Schedule and Printing.

The petition was read as follows:

Huntsville, Ala., June 21, 1901.

To the Alabama Constitutional Convention, Montgomery, Ala.:

In order to procure individual protection and to give to us and our families a wage that will maintain us, we have voluntarily entered into an organization known as the Huntsville Typographical Union, No. 422. We have at heart the interests of similar unions throughout the country, and we believe that organized labor should be recognized in every section of the Nation. There fore be it

Resolved, That Huntsville Typographical Union, No. 422: hereby memoralizes the delegates composing the Alabama Constitutional Convention to give preference to the union printing establishments when consistent with the duties and obligations in the exalted and distinguished capacity in which they have been called to serve the people of Alabama.

Adopted this the 29th day of June, 1901.

H. L. Pollard, President.

Geo. C. Patterson, Secretary.

Resolution No. 228, by Mr. White:

Resolved, That the President of this Convention appoint a committee of five whose duty it shall be to see that all articles


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adopted by this Convention are properly engrossed. Said committee to be known as The Committee on Engrossment.

Referred to the Committee on Rules.

Resolution No. 229, by Mr. White:

Resolved, That when any article has been adopted, 300 copies thereof shall be printed for the use of the members of this Convention.

Referred to the Committee on Rules.

MR. HARRISON - When my name was called I did not have this resolution ready, and I ask unanimous consent to offer it now.

The resolution was read as follows:

Resolution No. 230 by Mr. Harrison:

Resolved, That the Secretary of this Convention be, and is hereby instructed to deposit a copy of the stenographic report of the Convention in the libraries of the following institutions in this State, to wit: One at the University of Alabama; one at the Alabama Polytechnic Institute; one at the Southern University; one at Howard College; one at Spring Hill College and one at the Normal College at Florence.

MR. O'NEAL (Lauderdale) - I ask permission to add the Normal School at Florence.

MR. GRAHAM - I ask permission to add the Alabama Girls' Industrial School at Montevallo.

MR. PETTUS - I rise to a point of order. The resolution is not before the House for amendment at this time.

MR. O'NEAL - I did not make a motion to amend.

The resolution was referred to the Committee on Rules.

Upon the call of the standing committees, the Committee on Exemptions submitted their report and the accompanying ordinance, which was read as follows:

Reports of the Committee on Exemptions:

Mr. President:

I am instructed by the Committee on Exemptions to make the following report:

The Committee considered carefully all ordinances and resolutions submitted to it, several of which contain valuable suggestions, but the Committee has deemed it best not to make any change in the Article on Exemptions in the present Constitution,


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and direct me to report said Article to be incorporated in the new Constitution.

All ordinances and resolutions referred to the Committee are herewith returned.

A. C. Howze, Chairman

ARTICLE —.

Exempted Property.

Section 1. The personal property of any resident of this State to the value of $1,000 to be selected by such resident shall be exempted from sale on execution, or other process of any court, issued for the collection of any debt contracted since the 13th day of July, 1868 or after the ratification of this Constitution.

Sec. 2. Every homestead, not exceeding 18 acres, and the dwelling and appurtenances thereon, to be selected by the owner thereof, and not in any city, town or village, or in lieu thereof, at the option of the owner, any lot in a city, town or village, with the dwelling and appurtenances thereon owned and occupied by any resident of the State, and not exceeding the value of $2,000 shall be exempt from sale on execution or any other process from a court or any debt contracted since the 13th day July 1868, or after the ratification of this Constitution.  Such exemption, however, shall not extend to ay mortgage lawfully obtained, but such mortgage, or other alienation of said homestead by the owners thereof, if a married man, shall not be valid without the voluntary signature and assent of the wife to the same.

Sec. 3. The homestead of the family, after the death of the owner thereof, shall be exempt from the payment of any debts contracted since the 13th day of July 1868, or after the ratification of this Constitution, in all cases, during the minority of the children.

Sec. 4. The provisions of Sections 1 and 2 of this Article shall not be so construed as to prevent a laborer’s lien for work done and performed for the person claiming such exemption, or a mechanics lien for work done on the premises.

Sec. 5. If the owner of a homestead die, leaving a widow, but no children, such homestead shall be exempt. and the rents and profits thereof shall inure to her benefit.

Sec. 6. The real or personal property of any female in this State, acquired before marriage, and all property, real or personal, to which she may afterwards be entitled by gift, grant, inheritance or devise, shall be and remain the separate estate and property of such female, and shall not he liable for any debts, ob-


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lizations, and engagements of her husband, and may be devised or bequeathed by her, the same as if she was a feme sole.

Sec. 7. The right of exemption hereinbefore secured, may be waived by an instrument in writing, and when such waiver relates to realty, the instrument must be signed by both the husband and the wife and attested by one witness.

MR. HOWZE - I move that the report be printed, together with the accompanying ordinance.

The motion was carried.

THE PRESIDENT - The next order of business will be the special order which is the consideration of the report of the Committee on Preamble and Declaration of Rights. The matter before the Convention is section two of the Article reported by the Committee to which is pending an amendment by the gentleman from Montgomery, and an amendment to the amendment offered by the gentleman from Limestone.

Is the Convention ready for the question on the amendment to the amendment?

MR. LOMAX - I believe at the adjournment of the Convention last evening the gentleman from Greene had the floor. If the gentleman from Greene will yield to me, I think perhaps we can settle this matter without further controversy. I ask the unanimous consent of the Convention to make a statement, however, prior to stating what the action of the Committee will be upon this matter. I will say that the statement will probably cut off debate, and settle the matter in controversy between us, and I ask leave to make that statement.

THE PRESIDENT - The Chairman of the Committee on Preamble and Declaration of Rights asks unanimous consent to make a statement explanatory of the position taken by the Committee.

To which there was no objection.

MR. LOMAX - Now, Mr. President, on yesterday, I think it is due to myself and to the Convention. I should state that having fully satisfied myself from the decisions of the Supreme Court of Alabama, notably the case of Washington against the State, in the Seventy - fifth Alabama, that the words "political rights" in this section had no bearing upon the question of suffrage whatever, I had not taken the trouble to investigate the question of political rights in such a way as to be able, off hand, to give a definition of thet words "political rights." not believing that the question could possibly arise in connection with any matter of suffrage before this Convention. I am still, from a further investigation of


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the authorities, convinced that if those words “political rights” might remain in this section. and that it would have no bearing upon any suffrage proposition which might be adopted by us, and I am sustained in that position, not only by the Supreme Court of Alabama, but in my judgment by the Supreme Court of the United States, and by the meagre definitions which I find in the law books of the term “political rights;” but the Committee is not disposed to have any great pride of opinion as to this particular matter.  We do not desire to get up a heated discussion about the meaning of words in the declaration of rights.  We believe that everything in that particular section of the bill of rights is covered already by the Fourteenth Amendment and we could not change or alter it if we undertook to do so.

We are not informed of the reasons why the Convention of 1875 adopted the bill of rights with this section in it without a dissenting vote, as the journal of that Convention show.  But, entertaining the opinions which I have expressed, that the striking out of the words political rights, or the striking out of the words “any person who has legally declared his intention to become a citizen of the United States” are not material to be declared in the declaration of rights, the Committee are willing and ask the unanimous consent of this Convention to accept the amendments, and I will state, Mr. President, that when this Convention has granted its consent to accept the amendments, I shall on my own responsibility, move to strike out the entire section.

MR. BEDDOW - I would like to ask the Chairman of the Committee a question.  What effect would the striking out of those words, as proposed by the amendment, have on those citizens of the State who have declared their intention, and who have been voting in the last few elections.

MR. LOMAX - I do not think it will have any effect, provided they have the right to vote under the suffrage article adopted by this convention.

THE PRESIDENT - Is the Convention ready for the question on the amendment offered by the gentleman from Limestone?

MR. COLEMAN (Greene) - I understood the Chairman to say he is willing to accept both amendments, and I think unanimous leave will be granted.

MR. LOMAX - We will accept both of them, by the consent of the Convention.

THE PRESIDENT - Does the gentleman ask unanimous consent?

MR. LOMAX - Yes, sir.

To which objection was made.


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MR. LOMAX - As the Convention refused to grant unanimous consent, I move that the section and the amendments be laid on the table.

MR. PILLANS - Will the gentleman allow me to call his attention to one thing that may be material to be considered before that is done. Will he withdraw?

MR. LOMAX - Yes.

MR. PILLANS - It is simply this, the section as we find it in our last Code of this State, has appended to it a note, stating "the effect of this section is to place all persons natural and artificial on a basis of equality in the courts." Citing the case of South and North Railroad against Morris, 65th, 75th, 85th, 87th and 106th Alabama, etc., and see also citations to another section : "there can be no discriminative advantage bestowed by law between the parties to the same suit," citing other authorities. "The statute against miscegenation is not a denial of equal civil and political rights to the races." Now if it appear from that, very likely that is a clause that has some efficacy and meaning, and has force in protecting investments and corporate rights and perhaps individual rights in this State, against hasty and ill advised legislation.

MR. WALKER - Will the gentleman allow a suggestion?

MR. PILLANS - Yes.

MR. WALKER - Isn't that purpose completely effected by the provision of the Fourteenth Amendment to the Constitution of the United States.

MR. PILLANS - It is, possibly. I only wanted to say that I expect to vote against laying the section on the table for the reason that it can be amended and preserved.

MR. LOWE (Jefferson) - I desire to state the grounds of my objection, and why I declined to agree to unanimous consent upon this question. It merely grows out my indisposition to mutilate our old constitution more than is necessary. I doubt if any gentleman on the floor has suggested a single instance or particular, in which any harm has come from the declaration contained in the old constitution. To my mind I can find no good reason for changing that language, or modifying it in any respect. Therefore, acting upon the principle, and upon the belief, that unless a necessity exists for a change we should adopt not only the spirit, but the letter of the old Constitution, I hope that the amendment will be voted down, and that the report of the Committee will be adopted.

MR. LOMAX - In reply to the suggestion of the gentleman from Mobile, I will state that an investigation which I made last night demonstrated the fact that this provision is not contained


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in any Constitutions at all, in the language in which it appears in our Constitution.  It appears substantially in the following Constitutions: New York, Connecticut, Indiana, Minnesota, South Carolina and Virginia, and does not appear in the Constitution of any other State, except those named, and, as I say, it does not appear in this language in those Constitutions.  I have no doubt, however, that everything contained in that section is covered by the Fourteenth Amendment, as I said before, and we could not possibly alter it if we undertook to do so.  I think the section ought to stand as it is written, and as it was adopted unanimously by the convention of 1875, or else it ought to go out altogether, and therefore I renew my motion to table both the amendments and the section.

MR. PETTUS - I would like to ask the gentleman a question. If you strike out Section Two, will there appear any where in the Constitution of Alabama a section declaring who are citizens of the State of Alabama?

MR. LOMAX - There will not appear in the bill of rights any statement of that sort.  I do not know what the subsequent committees may do.  It is not necessary in any event.  I now renew my motion to table.

Upon a vote being taken a division was called for, and by a vote of 49 ayes to 42 noes the section and the amendments were laid upon the table.

THE PRESIDENT - The Secretary will read the next section.

The Clerk read Section Three as follows:

Sec. 3. - That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalienable right to change their forth of government it, such manner as they may deem expedient.

MR. LOMAX - Mr. President, I will state that section is in the precise language of Section 3 of the Declaration of rights in the Constitution of 1875, and I move its adoption.

Upon a vote being taken the section was adopted.

Section Four read as follows:

Sec. 4. - That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination or mode of worship; that no one shall be compelled by law to attend any place of worship ; nor pay any tithes, taxes or other rate for the building, or repairing of any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust,


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under this State, and that the civil rights, privileges and capacities of any citizen shall not be in any manner affected by his religious principles.

MR. LOMAX - I move the adoption of that section.

Upon a vote being taken the section was adopted.

Section Five was read as follows:

Sec. 5. - No law shall ever be passed to curtail or restrain the liberty of speech or of the press; and, any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.

MR. LOMAX - I ask leave to make a verbal correction in that section, by inserting the word "that" in the beginning of the section, so as to make it read "that no law."

There being no objection, the amendment was allowed.

MR. LOMAX - I will state that the committee has amended that section or added to the section in the Constitution of 1875, the first clause of the present section "that no law shall ever be passed to curtail or restrain the liberty of speech or of the press." Those words have been added by the committee. The original section reads in the present Constitution. "Any person may speak, write or publish his sentiments on all subjects, being responsible for the abuse of that liberty." I move the adoption of that section as read.

MR. ASHCRAFT - I would like to ask the chairman of the committee. It seems in the original it was "any citizens" may speak. What was the design of the committee in changing the word "citizen" to the word "person"?

MR. LOMAX - There was no special design at all, but I should think that the right to speak and publish his sentiments ought to be enjoyed by everybody, whether he is a citizen or not.

MR. ASHCRAFT - I ask for information. There must have been some design in the original framers, for limiting it to the citizens as distinguished from a person. We might have an alien in an alien undertaking to stir up sedition and strife, and it might be possible in the interest of the country to prevent aliens from speaking and writing.

MR. LOMAX - I will state to the gentleman from Lauderdale in the event of such a thing as that taking place, as an alien may undertaking to stir up sedition, he would be chargeable with and liable to be convicted of treason.


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MR. BOONE - Was not the purpose of the committee to allow the women of the State the right to express their views, also ?

MR. LOMAX - Women are citizens any how, but every person within the commonwealth ought to be permitted to write, speak and publish his sentiments whether he be a citizen of the commonwealth or not, and be responsible for the abuse of that liberty as every one else is.

MR. CUNNINGHAM - What would be the status of an alien? Could he be indicted and tried for treason?

MR. LOMAX - No, sir, but he could be tried for something else that would be equally as bad.

Upon a vote being taken the section was adopted.

Section Six was then read as follows:

Sec. 6. - That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrant shall issue to search any place or to seize any person or thing without probable cause, support by oath or affirmation.

MR. LOMAX - I move the adoption of that section.

MR. DUKE - I would like to ask the chairman a question. What was the object of changing the word home to house?

MR. LOMAX - To correct a misprint in that copy you have in your hand. The word in the Constitution was house, and in printing that particular copy it was printed home.

Upon a vote being taken the section was adopted.

Section Seven was read as follows:

Sec. 7. - That in all criminal prosecutions, the accused shall have a right to be heard by himself and counsel, or either; for either; to demand the nature and cause of the accusation; to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf if he elects so to do, and in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed; and that he shall not be compelled to give evidence against himself, nor be deprived of life, liberty or property, but by due process of law, but the General Assembly may, by a general law, provide a change of venue for the defendant in all prosecutions by indictment, and that such change of venue on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor.


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The minority report thereon was then read as follows:

The undersigned, member of the Committee on Preamble and Declaration of Rights, concurs in the majority of said report save as to portions of Section 7, and he offers as an amendment to portions of Section 7, the following:

And in all prosecutions by indictment the place in the county or district in which the crime was committed shall be stated with reasonable certainty as to enable the defendant to know the particular place where the criminal act is alleged to have been committed.                                                       J. H. Barefield.

MR. BAREFIELD - I ask unanimous consent to amend the minority report.

The amendment was read as follows:

Amend minority report, Section 7, by inserting after the word "indictment" the words "time and."

THE PRESIDENT - So as to read time and place. The question will be upon the adoption of the minority report.

MR. HEFLIN (Chambers) - I move its adoption.

MR. BAREFIELD - I do not care to take up much of the time of the Convention on a proposition that it seems to me ought to, be in the organic law of this State. It has been argued by some, Mr. President, that the minority report is a question that can be handled by the Legislature. I admit that, gentlemen of the Convention, and will go further and say that the question of the indictment is a question that can be left to the Legislature of the State of Alabama. We have, Mr. President, a defendant brought before the bar of justice in the various courts of Alabama, and he comes in with an indictment against him that reads as follows: The Grand Jurors of said county charge that before the finding of this indictment, A. B. carried a pistol concealed about his person. We all known that the question of selling liquor and the question of carrying concealed weapons is one of the hardest of all offenses for a defendant to defend in a court of law. When he is charged with selling liquor or with carrying concealed weapons, he is not put on any notice whatever as to what he is expected to defend when he comes into court. He goes into court charged with violating the laws of Alabama, and he does not know the nature of the offense, he does not know the place where this alleged offense occurred. Now, Mr. President, in justice to a defendant, he ought, at least, to know what he is expected to defend, so that he may be able, Mr. President and gentlemen of this Convention, to summon his witnesses and to prove, if possible, that he is not guilty of the alleged offense.


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Now, Mr. President, it has been argued by the gentlemen composing the committee on the Declaration of Rights that it opened wide the doors to perjury, but I say that if this Convention inserts this as a guarantee to a defendant, you had better open the doors to perjury rather than to have one innocent man convicted under the laws of Alabama. It is a known fact, Mr. President and gentlemen of this Convention, that men who lack the backbone to confront a man that he does not like, or a man that has done him a wrong, and the natural result is that he concocts a plan, he gets his witnesses and goes into court, and perjures himself and thereby causes the downfall of possibly an innocent man, and yet, gentlemen of the Convention, the majority of the committee says that that man shall not be put on notice as to what he is expected to prove or to defend. Let us see the other side. The State of Alabama brings an ejectment suit against a man. The complaint is filed and served upon the defendant. He is put on notice as to what he is expected to defend against. Why should the State not be so generous as to criminals? I say, Mr. President, that if this is inserted, that many a man who is innocent of any offense will have the right and the privilege of summoning witnesses that will prove to the courts that he is innocent.

Now, let us take another proposition, gentlemen of the Convention, and I dare say there is not a practicing lawyer in this Convention who has not gone up against the same proposition. A man is charged with an offense, and when he gets into court he has possibly one or two absent witnesses. He is forced to a trial by being put on a showing. He makes his showing, and he submits it to the solicitor, who accepts it. In that showing it contains a statement of one time and place, and the solicitor, gentlemen of the Convention, will prove another time and another place. What is the result? There is a man that stands before the bar of justice without a single witness to speak in his behalf, and the result is he gets upon the stand to speak in his own behalf, and the law says that his testimony shall be weighed in the light of the interest he has in the result of the trial.

I say gentlemen, that it is an injustice to force a man to go into court, and not allow him to know what he is expected to defend.

MR. SMITH (Mobile) - Upon theory it looks as if there were merit in the minority report, but any lawyer who has had experience in the criminal courts for any considerable length of time knows that to put that section in there will be a stumbling block to the prosecution in at least two - thirds of the cases. I am now interested in the criminal practice. I have had no connection with that practice since 1893, but prior to that time I was in the criminal court, I believe, almost every day that it was open. I was the representative of a number of defendants, but never prosecuted


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a man in my life, and I unhesitatingly say that if that law had been in effect I should, regardless of every other question of evidence, have been able to have acquitted at least 50 per cent. of the men I defended, upon that and that alone. It matters not what question arises, there will be a divergency between witnesses as to minute particulars. There will be a divergency between the witnesses especially as to a question of time, and although the testimony may satisfy those that hear it that each witness is really speaking in regard to the same occasion, yet when you come to fasten their testimony upon the particular time, there will be such a divergency that the testimony will not be considered. Now, when the question is before the Grand Jury there are several witnesses, and those several witnesses testify substantially to the same transaction, but they do differ in the detail as to the particular circumstances, or the particular place, or the particular time. Under this rule the Grand Jury must locate upon that hearing, the particular time. After the Grand Jury has heard the case, found the indictment, and the man is put upon trial, the several witnesses get together, under the rule or not, and discuss the matter, and the man upon whose testimony the particular time has been fixed is convinced by the other witnesses that he is in error as to that particular instance, or that particular minute, and upon the trial the case is thrown out. Now, in defending, while there have been a few cases of innocent men tried where it was impossible for me to locate the particular time and place of the charge, those instances were so very very few that I do not now recall a single one that occurred during my practice. Certainly where that was the case, there was not sufficient evidence of the substantive facts to get a conviction. I certainly never represented a man that was convicted of a crime, the time and place and circumstances of which he did not know in advance. Once or twice, as I said before, I have defended men who did not know exactly what they were charged with, but the result always was that the witnesses did not know either and the man was readily acquitted, without more than the form of a trial.

I believe therefore, that while the rule as here laid down is apparently reasonable in practice, it will tend to defeat justice and enable more men to be cleared upon technicalities than already avoid the law upon such grounds, and my experience is that there is now an abundance of those who are guilty, and know they are guilty, that avoid conviction upon technicalities, which serves no good purpose to the State?

MR. WILSON (Washington) - The reason for alleging the time and place in any prosecution, criminal or civil, grew up centuries ago. Sprung up when the juries were selected from a particular vicinity out of which the litigation came under the idea that the men from that community knew more about it than anybody else, and they were selected not to try the case on the evi-


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dence impartially, but to try it from their personal knowledge of the facts, hence the necessity for alleging the place. It was essential to allege the time in order to enable the sheriff to select jurors, who were in the community at the time that the litigation sprung up. Mr. President, that reason has ceased to be for over 300 years. In addition to this, Mr. President, coming down to the present day, why should a defendant be served with a notice of the exact time and place of the commission of the alleged offense? It is said in indictments for carrying concealed weapons that the State may simply allege one carrying and may prove another, but as said by the gentleman from Mobile, a cases of that kind will not arise in one case out of a thousand. Mr. President, the solicitor is as often put on a showing as the defendant, and when once the solicitor is placed on a showing, that showing is as binding on the State’s witnesses as it is on that of the defendant. To adopt this provision means in substance and of necessity, carries with it the requirement that the State shall furnish the defendant an abstract of the evidence it proposes to use upon the trial. It opens the gates of fraud, and makes it almost impossible to ever get a conviction, it is a slap in the face of fair trial, it clogs justice, it retards law and order, and, Mr. President, the provision carries on its face a license to crime and a premium can perjury. Where is the defendant, if you will tell him the identical time and place where he engaged in a game of cards - I will ask the gentleman how many convictions there will be for card playing in this State, I will ask the gentleman how many of these gambling dens in Montgomery or any other place could be reached if you come up and cite them the time and place and the very night. How many of them cannot get up and prove that it was some other night, and there goes your case. Mr. President, I have seen a good many glass bottles, whiskey bottles and such truck as that turn men loose, that everybody knew were guilty of carrying concealed weapons. I have had men walk up to me and tell me right in the face of court that the defendant is guilty, but you cannot prove it, and if you do I am prepared to prove that he was somewhere else, and I have seen it several times wind up by the threat being verified. It is too often the case as the matter now stands, and if you engraft this provision in the Constitution there won't be one conviction out of ten indictments.

MR. BAREFIELD -- I would like to ask the gentleman a question.

THE PRESIDENT - Will the gentleman consent to be interrupted ?

MR. WILSON - Certainly.

MR. BAREFIELD - I would ask the gentleman if I withdraw the word "time" will you support the word "place"?


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MR. WILSON - No sir; one is bad as the other, an alibi is as easily proved against the place as against the time. Mr. President, I hope that this Convention will not place any such license on crime in violations of law, as proposed by this minority report.

MR. BAREFIELD - I ask unanimous consent to withdraw the amendment as to time.

THE PRESIDENT - The gentleman desires to withdraw the amendment; is there objection?

MR. HOWZE - Yes; I object.

MR. WILLIAMS (Marengo) - I trust my friend will leave the word "time" in there for a short while, any how, to get the sense of the Convention, there may be a good many of us who like the word "time" in there, and let us get the sense of the Convention before we decide if we cannot get a whole loaf, let's get a part of it.

I dislike to differ from my distinguished friend, the solicitor from the county of Washington, and I would say in differing from him that I look at this matter entirely from the opposite side. My friend has argued here as if he were in the trial of a criminal case, and as if there were only one side to this question. I will admit that there are possibly too many safeguards thrown around one charged with the commission of a criminal act, but I submit that the English - speaking people desire safeguards thrown around those who are charged with the commission of criminal acts, and if you gentlemen talk about opening the doors to bribery and perjury it is better to have them thrown wide open than that the doors of the penitentiary be closed upon too many innocent men as in my opinion they have been in the past. Now the argument of those who oppose this amendment is upon the grounds that the solicitor or Grand Jury practically the solicitor, would have a hard time in determining the time and place at which the offense was committed. I submit to the Convention that when the matter is before the Grand Jury that the Grand Jury has before them the State's witnesses and the State's witnesses are the ones who saw the thing done. Now what is the most natural result? The question that follows? When did you see it done, where did you see it done? I submit to the Convention that on the trial of every criminal case that you have heard, the first question asked by the Solicitor is: Where was this offense committed? Some of them say in the county of Montgomery, why not have it say in the city of Montgomery, if it happened at Jack's Mill, why not say at Jack's Mill? At what time? Why, last week. My understanding of the amendment is that the time must be charged with reasonable certainty. Is there anything unreasonable about saying on or about the 15th of June, near Jack's Mill over here in Lowndes county, near Hayneville ? There is a murder down here near the Federal


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building. Say near the Federal building, or at the intersection of two streets, or at King's Cross Roads, and describe it with some degree of accuracy. As it is now, you have the whole county of Montgomery, the whole county of Walker, or of Jefferson, and you have twelve months, and as to a felony, you have three years, in which to say when the felony happened, and in civil cases the place and time to be fixed. The best illustration of the case are numerous railroad. They say you must fix the time and place with reasonable certainty, where the particular injury complained of happened. Let us have it so in the criminal courts. The worst illustration that my friend could have presented is this question of carrying a pistol, but let us take up the question of carrying concealed weapons.

MR. REESE - Did you ever know of a case of indictment for murder where any injustice was done by failure to allege the place where the man was murdered?

MR. WILLIAMS - Oh, no; I did not mean to say that I can recall a particular case. Not in a murder case, but certainly the State’s witnesses know that time and place and why not give the defendant notice of the time and place charged at the time the indictment is brought.  Gentlemen on the opposite side will say when witnesses come into court, where did it happen?  Down at the coss roads.  Won’t it fix the place?  And when they say, when did it happen? On the 20th of June.  That fixes the time, it is true.  The defendant will have to send out and get his witnesses, when possible he came into court prepared for a different defense at a different time.  They might say if a fellow is so bad, going around committing offenses at different times, he ought to be convicted, but that is not the policy of our law, prosecute him for the one offense or the other, but put him on notice of the time and place.

MR. WILSON (Washington) - Is it not the custom to prove the time and place more definitely than to say a particular county and within one year before the finding of the indictment?

MR. WILLIAMS - It is ordinarily done, and that is what I condemn. In the trial of a case where the time and place is brought to the defendant, he has not time to go out and get witnesses. Take the gambling cases in Montgomery mentioned by the gentleman from Washington. If anybody sees gambling going on down town, he knows between what two streets, on Commerce or Dexter, or which side of Dexter he saw it. He certainly ought to know with that much particularity and whether last week or last month, and not place the defendant within a limit of twelve months, and give him the whole limit of Montgomery County. I am in favor of having the time and place, and if we cannot have both, let us have the place by striking out the time.


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MR. DUKE - For the life of me, I cannot see any good reason why this amendment should not be adopted. I cannot see, Mr. President, why it is that a man on trial for a criminal offense should not have the same right and have the same information given him in the indictment that he would be entitled to if he was defending an action on a contract or any other kind of civil action. A man who is on trial in which his life or his liberty may be taken from him, tell me, Mr. President, that he should not have the right to know the time and the place at which he is charged with the commission of an offense? Some of the gentlemen, and I was surprised at my distinguished friend froth Mobile, say it will prove a stumbling block in the way of the administration of the law, if you will let the defendant know the time and the place of the offense that he is charged with committing. In other words, Mr. President, if you will let the defendant know what you are prosecuting him about, you cannot convict him, because he can get up his evidence. Has it come to this in this country, that lawyers will argue that we have to slip up on these defendants in order to convict them? How is he going to know except from this indictment? You have the indictment. The grand jury of said county charged that before the finding of this indictment, that John Jones sold spirituous, vinous or malt liquors without a license and contrary to law. That is a good indictment under the present law. He goes to his attorney and employs him. He tells his attorney, I never sold a drop of liquor contrary to law in my life. His attorney says, well, where is your evidence? He says, Well, I don't know - I don't know the time that he alleges; I don't know the place; I don't know anybody that can swear that. His attorney says, Yes, but somebody has sworn it; somebody has gone before the grand jury and testified that you are guilty of this offense. Then what is the man going to do? He is innocent and he goes on trial. The indictment is read and the witness is put upon the stand and testifies that at a certain time and certain place he did sell spirituous, vinous or malt liquors without a license. Then what is he to do?

MR. PROCTOR - I would like to ask the gentleman a question.

THE PRESIDENT - Will the gentleman consent to be interrupted for the purpose of being asked a question?

MR. DUKE - Certainly.

MR. PROCTOR - I would like to ask the gentleman how he is going to manage - to allege the time and place in crimes which are continuous in their nature - he readily understands that.


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MR. DUKE - I don't think there will be any difficulty in that at all, I do not see why he cannot allege that it was continuing in a certain place.

MR. WILLIAMS (Marengo) - I wish to ask Mr. Proctor a question.

THE PRESIDENT - The gentleman from Chambers has the floor.

MR. WILLIAMS - The gentleman from Chambers will yield.

MR. DUKE - Certainly.

MR. WILLIAMS - I would like to know what offenses you call the "continuing" offenses?

THE PRESIDENT - It seems to the Chair that colloquy is out of order, he may be permitted to ask the gentleman from Chambers a question.

MR. WILLIAMS - I beg to ask the gentleman from Chambers what the gentleman from Jackson meant by the word “continuous" offense.

MR. DUKE - I am unable to answer the question, but in answer to the gentleman from Jackson, I desire to say if it is a continuous offense there is no reason why he could not say how long it continued if it was continuous at a certain place. There is no reason why he could not put that in the indictment. Now, I am not surprised at my friend in opposing this. You will find that most of the solicitors -  and I believe my friend who asked the question happens to be a solicitor- most solicitors do not wish to have their toes tread upon, and they like to convict.

MR. O'NEAL (Lauderdale) - And we like to acquit.

MR. DUKE - Yes, sir.

MR. PROCTOR - How many gentlemen of this Convention, except Mr. Smith, who have been on the floor defending the amendment, who are not defending attorneys?

MR. DUKE - I will answer the question of the gentleman. I do not know in what capacity the different lawyers in the Convention practice.

MR. WILSON (Washington) - Are you an attorney, may I ask ?

MR. DUKE - Well, yes sir.

MR. WILSON - Are you a prosecuting attorney?


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MR. DUKE - I do both, it depends on the character of the pocketbooks of my clients.

MR. WILSON - Are you a solicitor?

MR. DUKE - No, sir.

MR. WILSON - Do you defend more than you prosecute?

MR. DUKE - Yes, sir; I do.

MR. WILSON - And so do the rest of the gentlemen I take for granted.

MR. DUKE - I have frequently prosecuted and I have been a solicitor. And right here, I was a special solicitor a good many years ago, when I could afford to quit my lucrative practice for such a position. (Laughter.) I had a case, prosecuting a man in an adjoining county, and the case was one against a man for carrying a concealed pistol. After investigating that matter the attorney came to me and he said my client says that he don't know anything about this, he never carried a pistol in his life, and he don't know anything about it, and the prosecutor won't tell me anything about it. Contrary to the usual custom of solicitors, I agreed with him that he might have a continuance in order that he might get up his evidence. I have been in the same position myself in defending cases, and I have never yet found one of the regular solicitors that was so accommodating as I was on that occasion. Now what is the harm, what is the harm, gentlemen, in having the indictment state the time and place? Gentlemen, suppose an indictment is brought against my friend Proctor for carrying a concealed pistol, of course he never carries one - he takes the indictment and looks at it, he says, well that offense must have been committed in Montgomery County, I have been living here for several months, twelve months. I never carried a pistol, but what am I to do about the proof? Somebody is going to get upon the stand and swear that I did it, and perhaps two or three swear that I did it. If I knew the time and place, I could go to the witnesses that were there and perhaps prove my innocence, but instead of that I cannot do it because I do not know the time and place.

MR. PROCTOR - If a witness would perjure himself by swearing that I carried a concealed pistol, wouldn't he likewise perjure himself by alleging the time and place?

MR. DUKE - Yes, sir, and that is the point, if he perjure himself in alleging the time and place, I would look at the indictment and seeing the time and place I would go to the time and place and get my witnesses, and I would show that the gentleman's prosecution was founded upon perjury. That is just the point.


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THE PRESIDENT - The time of the gentleman from Chambers has expired.

MR. O'NEAL (Lauderdale) - I move that the time of the gentleman from Chambers be extended.

MR. DUKE - I am much obliged to the gentleman, but I will not take up any further time of the Convention.

MR. PROCTOR - I believe that the question has been sufficiently discussed, and I therefore move the previous question.

MR. WILSON (Washington) - The Chairman of the committee has not yet been heard.

MR. REESE - I move to lay the amendment on the table.

MR. ESPY - I rise to a point of order. The previous question has been ordered.

THE PRESIDENT - The previous question has been moved but not ordered.

A division was called for and by a vote of 56 ayes and 36 noes the amendment was laid upon the table.

MR. REESE - I desire to offer an amendment.

The Secretary read the amendment as follows: Amend Section 7 by inserting at ter the word "committed" in the 6th line the following: But in prosecutions for rape, adultery, fornication, sodomy or the crime against nature, the court in its discretion may exclude from the court room all persons except such as are necessary in the conduct of the trial."

MR. REESE - The amendment does not admit of much discussion.

MR. BAREFIELD - I move to lay the amendment on the table.

THE PRESIDENT - The gentleman from Dallas has the floor.

MR. REESE - The amendment is not one that admits of much discussion, but I must say that it is one that recommends itself to the common sense and delicacy of every delegate upon the floor. It is a provision that occurs in a great many Constitutions - it occurs in the recent Constitutions that have been adopted, and the phraseology is copied bodily from the Constitution of Mississippi. Mr. President, the excuse that is made for mob law and lynch law in this country is the difficulty and embarrassment of attending the trial in this kind of cases. The prosecutrix - and it is a terrible ordeal to put one through - to compel the prosecution in this sort of a case to go into a court house and


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face a large and interested audience of idlers and people prompted there by curiosity to tell a tale that is more painful than anything that could be imagined. Mr. President, I think the amendment is a most reasonable one and a most proper one for the protection of the prosecutrix, and for the protection of the young boys and idlers that attend this character of cases, out of idle curiosity.

MR. BAREFIELD - I would like to ask the gentleman if the Legislature cannot provide for that.

MR. REESE - No sir, not with this provision in the Constitution.

The provision of Section 7 here, is that trials must be public, and unless this amendment to the provision is put in here all trials must be public.  It has been suggested to by some gentlemen on the floor that in some parts of the State Judges have adopted the suggestion made in this provision.  If it has been done, it was contrary to the Constitution of Alabama.  This same idea is embodied in an ordinance that has been introduced here and sent to the Judiciary Committee, but in examining the Constitution of other States, I find that it appears as a proviso in the preamble and bill of rights.

MR. ESPY - I move to table the amendment offered by the gentleman from Dallas.

A vote being taken the amendment was tabled by a vote of 57 aver to 34 noes on division.

MR. LOMAX - I desire to state to the Convention that in the section as reported by the committee two changes have been made. One is by inserting in the 4th line the words: "to testify in all cases in his own behalf if he elects so to do" and by adding at the end of the section: "but the General Assembly may by general law provide for a change of venue for the defendant in all prosecutions by indictments, and that such change of venue may be heard and determined without the personal presence of the defendant so applying. The first change merely puts into the Constitution what is now the established law, the right of the defendant to testify in his own behalf, and the second is merely intended to permit changes of venue to be granted in those cases in which, owing to great public excitement in reference to the crime committed. the person charged with the crime may be in danger of lynch law if carried to the scene of the crime shortly after its commission. This permits courts to hear and determine applications of that sort without the personal attendance of the defendant. I move the adoption of the section as reported by the committee, and on that I call for the previous question, unless some gentleman desires to speak. I don't care to shut off debate at all.


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MR. WALKER (Madison) - I wish to offer an amendment.

The clerk read the amendment as follows: "Amend by striking out all of Section 7 after the words ‘Due process of law’ on line 8."

MR. WALKER - The words proposed to be stricken out by this amendment allow an application by an attorney for a change of venue without the presence of the defendant. It occurs to me that that is a very considerable innovation upon the established rules of law, and is a dangerous one. The result of it would be that a defendant, especially if he had obtained bail before the change of venue was made and gone to Texas, could remain in Texas until it was determined that the change of venue be allowed, and might elect to remain in Texas, if it were refused. It has been an established rule in the administration of criminal law as far back as we have any knowledge, that the personal presence of the defendant in criminal cases shall always be required, and the purpose of that requirement is that the defendant may be in the hands of the court, so that the visitation of the law upon him shall not be escaped. A provision of this kind would defeat that purpose of the law, I realize the danger that was in the minds of the members of this committee in putting this provision in here, but it is a recognition of the powerlessness of the law as now administered. I do not think that recognition itself should go into the Constitution. The thing to be done, is to provide such safeguards that a recognition of the powerlessness of the law shall not be necessary to provide for the safety of the defendants to make an application of this kind under the conditions referred to by the chairman of the committee. Why, gentlemen, it is an established rule of law that a defendant cannot be heard in a criminal case by any court unless he is practically within the custody of the court, and if he is convicted and takes an appeal, and pending that appeal gives a bond, why the appeal falls to the ground if he forfeits his bond and gets out of the State. Courts heretofore have always refused to hear anybody addressing them from across the border. That is a good old rule in the common law, and I do not think that we have reached the point that it should be abandoned. It is a recognition that the powers of the law have been faulty: that we cannot protect persons in the custody of the law. That is the only excuse that can be given for this innovation. I submit that it is a dangerous innovation, and that the Convention should pause before it adopts it.

MR. FITTS - The amendment offered by the distinguished gentleman from Madison seeks to strike out all of the last portion of Section 7, seeks to strike out these words, "But the General Assembly may, by general law, provide for a change of venue for the defendant in all prosecutions by indictment, and that such change of venue on application of the defendant, may be heard


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and determined without the personal presence of the defendant so applying therefor." Mr. President, the committee gave very serious and careful consideration to this addition. It is an innovation, it is an addition to the bill of rights of 1875, and nothing was put into the bill of rights by the Committee, except after the most serious consideration, but it was thought to be a step in the right direction. It is not open to the criticism offered by the gentleman, and if he had maturely considered, I do not believe that he would have made the criticism quite so broad. It does not provide for the court's hearing anything from any one accused who is across the border, nor does it provide for hearing anything from an accused who is not in custody. It does not seek to provide that an alleged criminal can secure a change of venue while a fugitive from justice or while not in custody, but it seeks to provide a wholesome safeguard against what we know from experience is the time of action when the mob forms and when the heat is up, and when if there is going to be a lynching, it is most likely to occur. Lynchings are most likely to occur at the first appearance of the freshly arrested criminal when he is being carried to the court house for the first time to have the first orders made in his case. It does not mean that these orders could or should be made while he is a fugitive or while he is not yet in custody, but it does seek to provide that as that is a mere order in which he has no reason to be present to testify at which there is no reason or necessity for his presence that the application can be presented in open court without bringing him out of jail and incurring the chance of his being seized and taken from the officers of the law, and without incurring the necessary expense to send a military company there to guard him on his first appearance in the court house, while this order is being made.

MR. WEATHERLY (Jefferson) - Will the gentleman permit a suggestion.

THE PRESIDENT - Will the gentleman permit an interruption ?

MR. FITTS - Certainly.

MR. WEATHERLY -- Would there be any objection to amending the Section something like this: "Provided, such application shall not be heard or determined where the defendant in whose behalf the application is made is a fugitive, or is not in custody of the law.

MR. FITTS - I would have no objection as a member of the Committee, but it is not necessary. It simply provides when one of those crimes have been committed which excites peoples, which disturbs the quiet of the community, which stirs them up that you need not carry that man in person to the court house, but that he can make his application for a change of venue through his au-


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thorized attorneys and have it heard and determined by the court without his personal attendance in the court house. This is a common sense proposition. What is our experience and observation in this State, in this Southland? When is it, and what time is it, in the progress of criminal agitation that men are seized and taken out of the hands of the officers of the law? The time is always immediately after he is first arrested, either while the sheriff is getting his prisoner to the jail, and if not at that time almost always at the time when carried out of the jail to petition for some such order as this.

MR. WALKER - Will you permit me to make a suggestion ?

MR. FITTS - Certainly, sir.

MR. WALKER - Wouldn't it be entirely within the power of a defendant when he has given bond to make this application from New York or anywhere else?

MR. FITTS - Well, if he had obtained bond, then there would certainly be no objection to his making it from New York or anywhere else, because it is the bond that is looked to to have him returned to the court house for trial.

MR. COLEMAN (Greene) - May I ask a question.

MR. FITTS - Certainly, Judge.

MR. COLEMAN - I propose to offer the following amendment.

The Secretary read the amendment as follows: Amend Section 7 by adding thereto, the following words: Provided, that at the time of the application for change of venue the defendant is imprisoned in jail or some legal place of confinement."

MR. FITTS - As a member of the Committee, I would have no earthly objection to that, though I think it is sufficiently covered as it is.

MR. LOMAX - If the gentleman from Tuscaloosa will permit me, while I do not see any necessity in the world for those words, on behalf of the Committee, I am willing to accept them. I believe, following the case of Warwick vs. The State, any court would refuse to hear an application from a defendant who is a fugitive. The Supreme Court did in that case; but I am perfectly willing to accept that.

THE PRESIDENT - The Chairman of the Committee asks unanimous consent to add the amendment offered by the gentleman from Greene.

MR. WALKER - I withdraw my amendment.


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THE PRESIDENT -  The gentleman from Madison asks unanimous consent to withdraw the amendment offered by him. The Chair hears no objection to the withdrawal by the gentleman from Madison of the amendment proposed by him, and the ordinance by the Committee, the amendment proposed by the gentleman from Greene, and it is so ordered.

MR. WADDELL- I have an amendment.

The Clerk read the amendment as follows: Amend Section 7 by adding on the fifth line after the word “do,” the following words, “And the wife or the husband may be allowed to testify for or against each other where the charge is infanticide.”

MR. FITTS— I make the point of order that that amendment is not germane to the pending amendment which has been accepted by the committee and has not yet been put to the house, and covers an entirely different subject.

THE PRESIDENT- It has been absorbed into the section by unanimous consent of the Convention. I overrule the point of order. The gentleman from Russell has the floor.

MR. WADDELL - There were two cases in Russell County that have gone unwhipped of justice, because the wife could not testify against the husband. In one case, where the mother stood and saw her child's brains beaten out before her eyes, and the law would not allow her to give evidence in the case. The man was convicted on circumstantial evidence and sent to the penitentiary for ten years, but he ought to have been hanged.

MR. FOSTER- May  I ask the gentleman a question?

MR. WADDELL - Yes, sir.

MR. FOSTER - Isn't it within the legislative power to enact laws to that effect?

MR. WADDELL - I think not.

MR. LOMAX - Mr. President, I think it is clearly within the domain of legislation rather than Constitutional enactment, consequently I move to lay the amendment of the gentleman from Russell upon the table.

A vote being taken viva voce, the amendment was tabled.

MR. LOMAX - I move the adoption of the section, as amended, and on that I call for the previous question.

The previous question was ordered by a vote of the Convention and the question then recurred on the adoption of the section as amended, and the section was adopted.


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The clerk here read Section 8: "That no person shall be accused or arrested, or detained, excepting cases ascertained by law, and according to the form which the same has prescribed. and no persons shall be punished, but by virtue of a law established and promulgated prior to the offense and legally applied."

MR. LOMAX - I move the adoption of Section 8. as read.

A vote being taken, the section was adopted.

The clerk read Section 9 as follows:

Nine - That no person shall, for any indictable offense, be proceeded against criminally, by information, except in cases arising in the military and volunteer forces when in actual service or by leave of the court, for misfeasance, misdemeanor, extortion and oppression in office otherwise than is provided in this Constitution; provided, that in cases of misdemeanor the General Assembly may, by law, dispense with a grand jury, and authorize such prosecutions and proceedings before Justices of the Peace or such other inferior courts as may be by law established.

MR. OATES - I desire to offer an amendment to that section.

MR. LOMAX - Will the gentleman permit me to state to the Convention the changes in the section before the amendment is read ?

MR. OATES - Certainly.

MR. LOMAX - The only change in this section consists in striking out the named misdemeanors and inserting the word "misdemeanors," without naming those particular offenses.

PRESIDENT PRO TEM. (Mr. Willett) - Does the gentleman from Montgomery insist on his amendment?

MR. OATES - I do.

The clerk read the amendment as follows: "Amend Section 9 in line 2, after the word "information," insert the following, "except when the felony has been committed and the grand jury at its first term thereafter fails to find a bill of indictment, the court may order such a prosecution."

MR. OATES - I will briefly explain that amendment. After the insertion of these words, the gentlemen will see in the second line that no person shall, for any indictible offense, be proceeded against criminally by information; then follows, except certain cases. This amendment is except when a felony has been committed, and the grand jury fail to find an indictment at the first term thereafter. Then it will read "and except in cases arising in the military and volunteer forces," etc. The reason why I offer this amendment, gentlemen of the Convention, is that the grand


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jury is supposed to be the fountain of administrative justice, and our Constitutions from the first having required that felonies or charges of felonies must pass to the grand jury and by that body an indictment be returned before one could be put upon his trial on such a serious charge. That was conceived and intended to protect men against fictitious charges of such grave offenses. But what is the condition today? It is a notorious fact that in more localities than one in the State of Alabama bribery is at times practiced upon this body in order that rascals may escape punishment. Cases have come within my knowledge in more counties than one where, under our law, the grand jury, you know, may be composed of fifteen men and it requires twelve of them to concur and find a bill, and where a murder has been committed and person charged therewith has friends and means which can be used, it has been found that they have succeeded in obtaining a sympathy and inaction, or rather a negative action upon the part of enough of the grand jury to reduce the number who are disposed to find a true bill, and none can be found, and then the greatest of crimes goes unwhipped of justice. Now how are you going to remedy it? It is a great evil, and if any gentleman in this Convention will show me a better way to remedy it I will cheerfully support it. Why, gentlemen, it has been the custom, or rather it has grown into a practice, that wherever a man who has any friends or any money, has murdered nobody but a negro, there is scarcely any danger of his being indicted. Step by step crime always progresses until we see instances now where a white man has murdered a white man and in more cases than one where the grand jury refused to find a bill.

MR. BAREFIELD - I would like to ask a question.

THE PRESIDENT PRO TEM. - Will the gentleman consent to be interrupted?

MR. OATES - Certainly.

MR. BAREFIELD - I would like to ask the gentleman if a judge is any better morally than the citizens that compose the juries of the county, and if a judge could not be bribed about as easy as twelve men, or as eighteen men who are supposed at least to be good citizens of the county?

MR. OATES - If he can, Mr. President, he ought to be impeached, and if not the good citizens in the community ought to rise and kick him out of there. If there is the kind of the judges you have, farewell to the administration of justice and triumph of law.  Now, gentlemen, I have not the time to give you my observations in extense upon this subject. It is not one that is new to me. I have been observing it for some time, and it is a growing evil. How can you remedy it, that is the question. How can you? Now I could mention instances. I could give you names


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and state to you cases where this has occurred of a horrifying character, but that I presume is not necessary to impress you with the importance of it. Where I have heard the evidence adduced in one or two cases myself, a case of willful murder, murder in the first degree, and grand jury after grand jury sat there and although the evidence was presented to them and not questioned no bill was ever returned. When did any of you ever hear, with one single exception, of anybody in Alabama being indicted for lynching and taking the lives of people? The only instance of which I am acquainted occurred in Washington county, where they found the lynchers and prosecuted them, and sent some of them to the penitentiary. Not another instance, not another one. And it is not a single offense, the outrage committed by a negro upon our white women, assaults upon them is something most difficult to suppress, men will - relatives and neighbors feeling indignant get hold of such a wretch soon after it occurs, they are very apt to lynch him. But it is not confined to that at all.

In many, many cases of charges of murder and some of much less gravity a party is taken out and lynched. Gentlemen, it tends to degrade our community. It renders life safe to no one and it ought to be broken up.

I will relate one instance which occurred within my own knowledge where some white men went in pursuit of a negro man who had offended them, not by any crime, but they event into a town or village and went into a barroom, which was kept by an old negro, a man of such character that the authorities allowed him to open a bar and dispose of liquor. In talking about the matter, the old negro ventured to remark that the negro they were pursuing had not committed an offense sufficient to warrant them in killing him and that he hoped they would not do it. My information is that soon after taking a drink or two and feeling lively, they took that old negro out in front of his bar and shot the life out of him. That is but one case. There are numerous occurrences and some worse than that.

The time of the gentleman here expired, and on motion of the delegate from Cleburne (Mr. Howell) his time was extended ten minutes.

MR. OATES - I thank the Convention and my friend, the delegate from Cleburne, and I shall finish my statement as soon as I can. This is an intelligent body and I wish merely to state what is involved in the amendment.

Now this, unlike other crimes, does not stalk forth from one to another and don't extend to taking the lives of white people. Suppose that nobody is killed by white men but negroes, and they manage in many cases not to be indicted. Now go with me in a plain practical statement of facts. Those people are an in-


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ferior race. We do not believe the most of them are entitled to a place in the administration of the State affairs along with and equal to the white men. We are taking steps here to elevate the suffrage and to cut out the masses of these people, not all because some of those people have qualified themselves by the establishment of a good character and intelligence enough so as to give them a respectable standing as citizens and give them sufficient knowledge to cast a ballot, but we know they are dependent upon the white people, that we are practically their guardians. There is not a negro in office in the State of Alabama, except a few appointed by the President and very few of them, and when they do not take any part in making or administering the laws, is it not the bounden duty of the white men to give them the full protection of the law? I tell you, gentlemen, the responsibility is on us and it is a fearful one. It is a weighty one and as sure as a just God holds men accountable for their acts in this world that responsibility is on us and when we allow the red - handed murderer of these people to go unwhipped of justice, it is a fearful thing that we are responsible for. Will you like men discharge your duty to these people who are dependent for their protection upon us, or will you allow the lawless to maltreat them and shed their blood and act towards them in some cases most inhumanely and deny him the protection of the laws. If you do you degrade our people and our institutions. It is unworthy of a noble race, and we should convict the perpetrators without any reference to anything in our past history. Take hold of this thing and guard their rights and protect their lives as we do our own.

These are the objects I seek to attain by offering this measure so that after giving the grand jury an opportunity to find an indictment soon after the crime is committed and if they do not at the first session act, the judge or court may order the prosecution instituted. Not that he must but that he may. That shifts the responsibility to him and if he is what he ought to be, if he is a true judge, and is satisfied that a crime against nature has been committed, any felony, which should by all means be investigated, he will order it. Sometimes felonies don't require such action as that and if the judge is satisfied that public good and common justice don't require it he will not take the responsibility of making the order; but presuming he is what he ought to be. whatever a judge should be, can we not risk him and let him say whether proceedings shall be had against the suspected party by information filed. It seems to me that the case is exceptional because of practices that have been inaugurated to dodge responsibility and because of the course that has been pursued which has diverted grand juries from noble purposes and converted them by means of bribery into a shield to protect the guilty.

MR. PITTS - Will not the adoption of your amendment amount to the abolition of the grand jury?


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MR. OATES— I think not. But I will say furthermore, if the grand juries cannot be relied on to indict the crimes to which I have alluded, they ought to be abolished.

MR. PITTS —  Will it not put the prosecution within the hands of the families and friends of those injured?

MR. OATES - Not necessarily.  It will be in the hands of the officers of the law.

MR. PITTS - Suppose the crime of burglary has been committed and the grand jury ignores it, won’t this put it in the power of those back of the prosecution to proceed against a suspected person?

MR. OATES - Not at all. They would have to deal with the judge, and if the judge don’t see proper to order it, they cannot proceed.

MR. SANFORD— How do you propose, that the information shall be filed, at the request of the solicitor?

MR. OATES - On the order of the court and not in the absence of such order.

MR. PITTS - On what information would the judge act?

MR. OATES - You would have to ask the judge.

MR. PITTS - How would it be brought to the knowledge of the judge?

MR. OATES - These things are generally  known.

MR. PITTS - But would he proceed on his own motion?

MR. OATES - If he is satisfied a felony has been committed he would order an investigation.

MR. BOONE - And would not the legislature have the power to regulate all that?

MR. OATES - Yes.

MR. REESE - Where the conditions in a locality are such as to protect a man from indictment by the grand jury, will not the same influence protect him from conviction, by a petit jury ? Is not there a great deal more trouble about petit juries turning men loose than about the failure of grand juries to indict and would you not have to abolish petit juries in the classifications you speak of to get justice?

MR. OATES - Fortunately we have not reached that stage of degradation yet and I trust to God we never shall.


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MR. BULGER - If I understand the amendment offered by my friend from Montgomery and its influence, it would be very unwise  to put it in the fundamental law. It is clearly a departure from a time honored practice and custom under our theory of government that has proved so satisfactory for many, many years. The gentleman in support of his position cites exceptions to the general rule. He cites cases in which the grand juries have not indicted men who in his judgment ought to have been indicted. It is always unsafe to bade a rule of action on exceptions to the general rule. Is the judge a better man than the grand juries are ? If so, why so? The grand jurors under our system are selected from the body of the county on account of their integrity, intelligence and high standing among their fellows. A  Judge is selected from a larger body on the same ground and for the same reasons. Gentlemen have failed to tell this Convention why a Judge is safer to indict a man than a grand jury is. In the one case the matter in controversy is left to eighteen men to judge, in the other to only one, and I maintain it is eighteen times as safe in the hands of the grand jury as it is in the hands of the Judge.

Now, Mr. President, while there are exceptions and cases in which men should have been indicted when they actually were not the exceptions to which the gentleman refers never go out of date and if the first grand jury in session after the crime fails to do its duty because of bribery or other cause as the gentleman seems to intimate, we only have to wait six months under our practice to have another grand jury.  I believe no citizen of Alabama ought to be put upon a final trial unless a grand jury of the community in which the crime is committed says by an indictment that he ought to be put upon trial before a court and a traverse Jury.  I am unwilling to depart from the time honored practice that has proven healthy not only to our system of government but to all civilized governments that a man should first be indicted before he is put on trial.

MR. JENKINS - One of the prime principles in all governments instituted among men is for the protection of life, liberty and property of the citizen and when the machinery  we have devised fails to accomplish that purpose, I maintain there ought to be some resort to extreme means so that you could say to any plan "In the name of justice and of God you must come up to the bar and stand your trial for this offense of which it is said you are guilty."

There is not a county in the State of Alabama in which members on this floor do not know of instances time after time - I could name them in Wilcox, Monroe, Butler and adjoining counties - where not through bribery but through influence and power of position men have been stricken to death and grand juries through fear or favor have refused to do their duty. There have


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been murders committed, arson and the darkest crimes that blackens the statute books, and through fear or favor there have been no indictments. I have known a case - I won't call the name- where the terror of one man prevented witnesses from going before a grand jury and swearing to what they knew, and when every man in that county, you might say, knew the fact and yet the grand jury could not get a man to come in before them and swear as to the facts. But now in our circuit we happen to have on the bench a judge who is as fearless as the most undaunted and with the power placed in his hand by this amendment. I do not believe any one man or any set of men or any power or influence under the sun could deter him from doing his duty under the law.  And I say no man has a right to sit upon a bench unless he has the physical courage to resist all improper influences. I think we have such judges now, but if we have not we will have them.

I have talked with delegates on this floor and they have mentioned many cases in their county where the grand juries have failed to do their duty.

We cannot calculate the deterrent influence on crime that this will have when you say to everyone, be they never so high, “It matters not how great is your influence, or how much money or how much political influence you have, if you commit a felony of any kind you have to come up and face a petit jury and be tried for it.” That will serve to create a sentiment of respect for the majesty and greatness of the law and serve to put the law in that high place it ought to occupy in the minds of the people. But when people see murder and arson and other felonies committed in the light of day and the men committing them walk around unwhipped of justice with no indictment, the feeling is fostered that they can do anything likewise. There is not a white man who lives in the Black Belt that does not feel that he can kill a negro and come clear. That is the condition of things that should be changed and we can change it if we will and I say it is our duty to make every man come strictly under the law.

MR. BAREFIELD - Are there not more indictments than convictions?

MR. JENKINS - Yes, and if there were more indictments there would be still more convictions and less crime in Alabama. And because that a certain twelve men have failed to do their duty or because the State happens to have a weakling in the place of a solicitor or because of some technicality of some judicial procedure, some guilty man has been let go scott free is no reason to continue such a procedure and make it unchangeable and iron bound, as it were. So when the whole machinery of justice falls and breaks to pieces and when the public conscience is outraged and justice stands degraded, let there be a place somewhere to which the outraged citizen can go and say "I want justice." I


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know a man living in South Alabama whose boy was shot in the back as he sat talking to his family at their fireside. The grand jury failed to indict the assassin and this man moved away. I asked him about it and fie said I did not get justice. I felt like taking my shot gun and if it had not been for my wife and children I would have done it. Gentlemen, there are others who feel like taking personal vengeance because grand juries failed to do what ought to have been done. I expect I have consumed my time but I have often thought about this thing and prepared a bill for the Legislature along these very lines and found when I examined the Constitution that that wouldn't do because the Constitution has this plain provision that every felony should be proceeded against by indictment. As Governor Oates said this does not force the Judge to do it, he is simply allowed to do it, and I believe he will do it where the necessity exists.

MR. DUKE - I offer an amendment.

The amendment was read as follows: Amend amendment by inserting immediately after the word "felony" the words "which may be punished capitally."

MR. OATES - So far as I am concerned the amendment is acceptable to me.

MR. DUKE - I am opposed to giving the judge the power of a grand jury in all these felonies. I think the object intended by the gentleman from Montgomery will be reached by making it apply only to felonies that may be punished capitally.

MR. PETTUS - The amendment offered by the gentleman from Montgomery, as amended by the gentleman from Chambers, seeks to remedy a recognized evil which has been eloquently portrayed by the distinguished gentleman from Montgomery; but I do not believe that the remedy that is proposed will be adequate. It has been said here in debate upon the floor that influence reaches a grand jury and may prevent it from discharging its duty to the State and to the people. I agree with what the distinguished delegate from Montgomery has said about a high and exalted judiciary, but we are forced to admit that judges are human beings, and that they are as liable to be reached by public opinion and by influence, and perhaps as much so as the twelve or eighteen men composing the grand jury. It seems to me this is a very radical departure from well established principles of law that a judge who is to be the trial judge in a case shall set in motion the machinery of the law for prosecution of offenses of this character. It seems to me that is a very unwise departure from long established principles of law.

Another result from the adoption of this amendment would be that you take from the grand jury the responsibility which rests


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upon them to discharge their duty to the State if you divide the responsibility, the whole of which now rests upon their shoulders.

MR. FITTS - Speaking of the long established use of the grand jury, I ask if the prophet of old did not make this announcement: "Seek out and find the old ways and walk therein and ye shall find rest for your souls?"

MR. PETTUS - I take it for granted that the question carries its own answer. The very fact that this amendment seeks to divide the responsibility that rests upon the shoulders of the grand jury will have a tendency to make that body more lax in the discharge of its duty than it now is. If the grand jury has any doubt about whether public opinion will uphold the finding of an indictment, it will put it off on the judge these capital cases and make him shoulder the responsibility which they shirk. I believe in that way this amendment will do more to defeat its end than it will do to remedy the evil it seeks to stop.

Another thing is public opinion after all, must justify and enforce the law before the law can be effective, and whether you put the machinery of the law in the hands of the grand jury or in the hands of the judge, it is public opinion that enforces it in the end. The law is merely a lever and unless it rests upon the fulcrum of a solid and well - founded public opinion, it will be ineffective and useless on the statute books - it will be a dead letter. For that reason, I move to lay this amendment on the table.

The motion to table was withdrawn at the request of the delegate from Greene (Mr. Coleman).

MR. COLEMAN - I have had the honor to represent the State as prosecuting attorney as long or longer than any man in the State.  These questions have occurred to me often, and I have considered frequently the troubles which arise such as have been suggested by the delegate from Montgomery.  But remembering that this is a free country and that there should stand some palladium between the law and the prosecuting attorney, and the rights of the people, I have refrained and do now consider it a most dangerous innovation to strike down the power and authority afforded to the grand juries of our country.

The gentleman has referred to cases in Montgomery, and my friend to the left has referred to cases within his knowledge. The evil does not arise from the fact as stated by them.  Who is it that forms the grand juries of this county? And who is it that selects and provides for the selection of the petit juries?  The jury system of Montgomery County was established by the representatives of Montgomery County, and if they were not satisfied with the plan adopted or if, under the law, proper and competent grand jurors are not selected, the fault does not lie with the law,


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but in the statutes under which the grand and petit jurors are drawn.

MR. OATES - I desire to correct the gentleman. My remarks did not apply alone to Montgomery, but were general.

MR. COLEMAN (Greene) - The gentleman referred to cases in Montgomery and I say the delegates to this Convention must remember that if competent jurors are not selected it is not a deficiency in the organic law of the State but is owing to a defective plan of selecting grand and petit jurors and shall we admit of this innovation, this striking down of the protection between the power of the courts and the liberties of the people because the statutes of the State are not remedied or improved?

That is a matter wholly within the discretion of the Legislature. They can select and provide for the selection of fit and competent persons. As it is now, names are put in some box and are drawn out at random, and that is the defect not in the organic law, but from the fact that in drawing them out, they are not able to reject any of the names, and thus you get incompetent grand jurors and petit jurors to try the cases. I trust the delegates to this Convention will consider well before they put the power in the court or the prosecuting attorney to start these prosecutions. I have time and again felt the desire to exercise this power, but as I grow older and have retired from interfering or practicing in that kind of cases and consider the condition of our country, I realize it is better to suffer the ills we bear than to fly to others we know not of.

MR. OATES - I would like to ask the gentleman this question: Notwithstanding we have had a great many lynchings in Alabama, does the gentleman know of any case where the grand jury ever returned an indictment, except that single one in Washington County.

MR. COLEMAN - If the gentleman will go and look at the rolls of the penitentiary, he will find there a number of men that I had sent there for that offense.

MR. OATES - For lynching?

MR. COLEMAN - For whitecapping.

MR. OATES - I asked for lynching.

MR. LOWE (Jefferson) - Does not the gentleman think that whatever influence might be brought to bear to prevent witnesses from appearing before a grand jury and securing an indictment, would also prevent them in general trials and that prosecutions under this system would be a failure after all in most cases?


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MR. COLEMAN - I do not doubt it but I look at this question from a broader standpoint. It is whether the poor man without money has the protection afforded to him by the intervention of a grand jury. It is manifestly unjust to trust a prosecuting attorney with his association and influence with the judge to say when and who shall be proceeded against by information.  Where does the judge get his information? Is he to examine the witnesses and have an ex parte investigation of the case?  Must not he necessarily derive his information from the prosecuting attorney or else institute proceedings ex parte or have a preliminary trial. Even in the Federal Court the information filed by the district attorney proceeds upon a finding by a grand jury. I do not say it positively, but I do not think there is a State where the liberties which are secured to the people by the intervention of a grand jury are not recognized and it is a most dangerous innovation and I protest against this Convention striking down this palladium for the people of this State.

MR. PETTUS - I now renew the motion to table the amendment.

MR. HOWELL- On that I call for the yeas and nays.

The delegate from Cleburne withdrew the call and the call was renewed by Mr. Oates and was sustained, and the roll call resulted as follows:

AYES

Barefield,

Haley,

Parker, of Elmore,

Bartlett,

Heflin, of Chambers

Pearce

Beavers,

Hodges

Pettus

Beddow,

Hood,

Phillips,

Bethune,

Inge,

Pitts,

Blackwell,

Jackson,

Proctor,

Brooks,

Jones, of Hale

Reese,

Bulger,

Jones, of Wilcox,

Renfro,

Byars,

Knight,

Reynolds (Henry),

Cardon,

Long, of Butler,

Rogers, of Lowndes,

Carnathon,

Lowe, of Lawrence

Rogers, of Sumter,

Chapman,

MacDonald,

Sanders,

Cobb,

McMillan, of Wilcox,

Sentell

Coleman, of Greene

Martin,

Sloan,

Cornwall,

Merrill,

Smith, Mac A.,

Ferguson,

Miller, of Wilcox,

Smith, Morgan M.,

Fitts,

Moody,

Sorrell,

Fletcher,

NeSmith,

Spears,

Foster,

Opp,

Spragins,

Freeman,

O’Rear,

Stewart,

Glover,

Parker, of Cullman,

Thompson,


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Willet,

Williams, of Barbour,

Wilson, of Washington,

Walker,

Williams, of Marengo,

 Winn,

Weatherly,

Wilson, of Clarke,

 TOTAL - 71 NOES

Messrs. President,

Grayson,

Maxwell,

Ashcraft,

Harrison,

Murphree,

Banks,

Henderson,

Norman,

Boone,

Howell,

Oates,

Browne,

Howze,

O’Neal of Lauderdale,

Burns,

Jones, of Montgomery

O’Neill (Jefferson),

Cofer,

Jenkins,

Palmer,

Cunningham,

Jones, of Bibb,

Porter,

Dent,

Kyle,

Sanford,

Duke,

Leigh,

Selheimer,

Eley,

Locklin,

Studdard,

Espy,

Lomax,

Waddell,

Foshee,

Long, of Walker,

Watts,

Graham, of Montgomery

Lowe, of Jefferson,

White,

Graham, of Talladega

Malone,

 TOTAL- 44

ABSENT OR NOT VOTING

Almon,

Greer, of Calhoun,

Pillans,

Altman,

Greer, of Perry,

Reynolds, of Chilton,

Burnett,

Handley,

Robinson,

Carmichael, of Colbert,

Heflin, of Randolph,

Sanford,

Carmichael, of Coffee,

Hinson,

Searcy,

Case,

King,

Smith, of Mobile,

Coleman, of Walker,

Kirk,

Sollie,

Craig,

Kirkland,

Tayloe,

Davis, of DeKalb,

Ledbetter,

Vaughan,

Davis, of Etowah,

McMillan (Baldwin)

Weakley,

deGraffenreid,

Miller, of Marengo,

Whiteside,

Eyster,

Morrisette,

Williams, of Elmore,

Gilmore,

Mulkey,

Grant,

Norwood,

So the amendment was laid on the table.

During the roll call:

MR. JONES (Montgomery) - This morning the gentleman from Mobile (Mr. Smith) asked me to pair with him on the proposition to authorize nine jurors to find a verdict. It may be that he considered that that was a general pair on this report. If he


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were here I would vote no. I don't know how he would vote, but having made the pair I do not like to be put in the attitude of breaking it.

THE PRESIDENT - This is an entirely different question.

MR. JONES (Montgomery) - Then I will vote no.

After the roll call had been finished and the result announced:

MR. JONES (Montgomery)- I have an amendment to offer.

The amendment was read as follows: Amend Section 9 by adding after the words "actual service" in the third line of the printed bill the words “or when assembled under arms as a military organization."

MR. JONES (Montgomery) - I will state briefly the object of the amendment. Under the law and the Constitution the members of the volunteer organization are liable to a court martial only when they are called on duty, in the enforcement of law, which they, are organized in a camp of instructions and possibly when they are ordered to the drills that the statute provides for. There are a good many cases where the organizations are not in actual service such as when they go to attend trial drills or some fete or celebration and it often happens that offenses are committed that for the good of the organization and discipline ought to be punished by court martial. The object of my amendment is to allow the military authorities to deal with a man who, when he goes to a picnic under arms, gets drunk and raises a row, and not allow him to escape punishment by court martial under the plea that he was not in actual service. I was a long time connected with the sanitary service and I offer this for the good order of military discipline.

MR. LOMAX- Are these offenses provided with proper punishment in the military law?

MR. JONES - Yes, but without this you cannot proceed against them.

MR. ROGERS (Sumter) - Would this take the punishment out of the hands of the civil authorities?

MR. JONES - I think not. A private might slap an officer and he could be court martialed and still could be proceeded against in a civil court just like he could for murder.

A vote being taken the amendment was adopted.

MR. FERGUSON - I have an amendment.


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The amendment was read as follows: Amend Section 9, line 5, after the word "misdemeanor" by adding the words "and grand larceny."

MR.- FERGUSON - I wish briefly to explain to the Convention the purpose of this amendment. In the first place it means a great saving of money to the tax - payers of Alabama. That ought to commend itself to the watchdogs of the treasury upon this floor.

It furthermore guarantees, Mr. President, a speedy trial to many people that are charged with the crime of grand larceny in this State that should commend itself to the guardians of civil liberty upon this floor.

MR. FOSTER - Does that authorize justices of the peace to sentence a man to the penitentiary?

MR. FERGUSON - Not at all. By the report of the Attorney General, Mr. President, for the last preceding two years grand larceny was a predominant crime in the State of Alabama. There were 937 cases of grand larceny prosecuted in the State of Alabama for the two years ending the first of last September. By the report of the Attorney General for the two years ending September 1, 1896, there were more than fifteen hundred cases of grand larceny prosecuted in the State of Alabama. Take it year in and year out, there is an average of eleven or twelve hundred cases of grand larceny prosecuted within the confines of this State.

MR. OATES - I desire to ask the gentleman a question. Would not that amendment leave the offense of grand larceny to be tried and disposed of by justices of the peace?

MR. FERGUSON - Not at all.

MR. OATES - Do you think they should be allowed to try and dispose of the cases finally?

MR. FERGUSON - Not at all. Now the gentleman is a lawyer and he must know the law. This Section 9 as it stands now and as it has stood heretofore permits the legislature to dispense with the absolute necessity of indictment in all misdemeanor cases. Now then under that law the jurisdiction of justices of the peace is confined to certain offenses. I mean the final jurisdiction of justices of the peace are confined to what? According to my recollection I will briefly state them. To vagrancy, assaults, assaults and batteries, affrays, in which no stick or other weapon is used, cruelty to animals, public drunkenness, and perhaps one or two other little offenses.

Now, then, all the other misdemeanors of the State are not within the final jurisdiction of justices of the peace. Upon the same principle as the statute law fixes what the final jurisdiction


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of Justices of the Peace is, you can not say that the Legislature will give them a final jurisdiction of grand larceny cases. I believe that is, an answer to the question of the gentleman from Montgomery.

MR. PITTS - What is the punishment for grand larceny?

MR. FERGUSON - I was coming to that later.

MR. PITTS - Well tell us what it is  now?

MR. FERGUSON - From one to ten years.

MR. PITTS - You propose to send a man to the penitentiary for ten years on information?

MR. FERGUSON - That will be at the election of the defendant. He will lose no rights in the premises. He can still demand his trial by jury.

MR. PITTS - Why limit this to grand larceny, why not put in all the other felonies?

MR. FERGUSON - I was satisfied this Convention would not consent to the putting in of all felonies but I believe after I have explained the purpose for which I offer this amendment the Convention will vote for it.

Now bear with me patiently just a moment longer. There is not a man upon this floor but who knows that the distinction between grand and petit larceny is shadowy, purely technical. The only thing that makes the distinction is the value of the property. Under the present statute to steal a hog worth $5 is grand larceny, if the hog is only worth $4.50 it is petit larceny.

MR. PITTS - What about the punishment, what is the difference between grand and petit larceny?

MR. FERGUSON - The extreme punishment for petit larceny is twelve months in jail and $500 fine. The lowest punishment for grand larceny is one year in the penitentiary.

MR. PITTS - What is the highest penalty?

MR. FERGUSON - Ten years, but the gentleman is bound to know from his experience as a prosecuting attorney in this State for many years that the extreme punishment is rarely visited in that class of cases. I can safely say that the average punishment for grand larceny in Alabama is not exceeding three years. It would be a most extraordinary case to warrant a judge in giving more than three years' punishment for the offense of grand larceny. So I say the distinction is shadowy and purely technical. A man convicted of petit larceny loses his political rights just the same as a man convicted of grand larceny.


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Now coming to the second ground to which I referred, the amendment is really in the interest of civil liberty and carrying out the principle you have adopted in Article 7 of this ordinance guaranteeing a speedy trial. If a man is charged with grand larceny he must remain in jail until the grand jury convenes and an indictment is returned into court before he can he put upon trial for it.

MR. O’NEAL - This authorizes that a grand jury can be dispensed with in proceedings and prosecutions before justices of the Peace and such other inferior courts as may be established? Why not amend that by inserting the words "Circuit Court" before justices of the Peace so that parties could be proceeded against in the Circuit Court on information without indictment.

MR. FERGUSON - Being a solicitor, I did not want to come in the attitude of a Greek bearing gifts, I come in the interest of economy. In the interest of speedy trials in this sort of cases.  As I was proceeding to say, if a man has committed grand larceny it may have been within two or three days after the grand jury has adjourned and he will have to lie in jail six months until another grand jury convenes before he can be put on trial. That means $9 a month, or $54 for his feed. He may want to plead guilty. I have in my own experience known where men were committed to jail on the charge of grand larceny and they desired to plead guilty but could not do so because they had not been indicted, and they had to lie in jail many weary months until a grand jury convened before they could plead guilty. With such a provision as this amendment in the organic law those men could go before any court of competent jurisdiction and enter their plea of guilty.

MR. ROGERS - Before what tribunal would the accused be tried in those counties where there are now no courts of competent jurisdiction, when the Circuit Court is not sitting?

MR. FERGUSON - I am glad the gentleman asked that question, because in nearly every court we have a County Court that has jurisdiction of all misdemeanor cases that the Justices of the Peace have not final jurisdiction of. There is not a county in the State but what has a County Court or some court having jurisdiction of all misdemeanors, like the City Court of Montgomery. the City Court of Mobile, and the Criminal Court of Birmingham.

MR. BOONE - And the Inferior Court of Mobile.

MR. FERGUSON - And there is one at Gadsden and one at Talladega. In all these courts these men could immediately plead guilty if they desired or they could get a speedy trial without the intervention of the grand jury.


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MR. JONES (Wilcox) - I am satisfied, Mr. President, that the delegates on this floor would not entertain for a moment a proposition to allow all felony cases toy be proceeded against by information.

MR. FERGUSON - I do not ask that.

MR. JONES (Wilcox)- I can see no reason why an exception should be made in the case of grand larceny. There is no reason that presents itself to my mind why we should pick out that single offense and make an exception of it and say that with regard to that offense an information shall be allowed and that an indictment by a grand jury is not necessary. I do not want to take up the time of the Convention and if no gentleman cares about speaking particularly, I move to lay the amendment on the table.

A vote being taken the amendment was tabled.

MR. O'NEAL - I offer an amendment.

The amendment was read: Amend Section 9, line six, by adding the words "the Circuit or City Court, or" before the word, "Justices of the Peace."

MR. LOMAX - I move the adoption of the section and on that I call for the previous question.

A vote being taken the main question was ordered and a further vote being taken the section was adopted.

Section 10 was then read as follows:

Sec. 10. That no person shall, for the same offense be twice put in jeopardy of life or limb; but courts may, for reason, fixed by law, discharge juries from the consideration of any case,  and no person shall gain any advantage by reason of such discharge of the jury.

MR. LOMAX - The amendment to that section proposed by the committee is to allow courts, for reasons fixed by law, to discharge juries from the consideration of any case. I can see no reason why a court should not have the power after a jury has fully and fairly and honestly for a long time considered a case, to discharge the jury under proper conditions and circumstances that may be prescribed by law. There is no reason why a jury should be tortured by one or two men holding that jury until their patience is exhausted and until they are altogether weary and worn out. For that reason the committee thought it was best to say in this section that courts may for reason; fixed by law, discharge juries from the consideration of any case, and that this discharging the jury should not be held to have put the defendant in jeopardy.


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MR. CUNNINGHAM - I desire to ask the Chairman what is meant by “limb.’

MR. LOMAX - It means an arm or a leg or an eye or a nose.

MR. BOONE - Does it not mean mayhem?

MR. LOMAX - Yes; it means his life or grievous bodily harm.

On motion of Mr. Lomax the section was adopted and Section 11 was then read as follows:

Sec. 11. That no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

On motion of Mr. Lomax this section was adopted and Section 12 was read as follows:

Sec. 12. That the right of trial by jury shall remain inviolate.

The minority  report for Section 12 was also read as follows:

Minority reports:

The undersigned members of the Committee on Preamble and Declaration of Rights do not concur in the foregoing report of the committee so far as it relates to Section 12, Article I, for the following reasons:

In every relation of life in Alabama, where the result is dependent upon the opinions and decisions of a number of persons, the principle of majority rule governs, with the single exception of a verdict of a jury. Why should a unanimous verdict on a question of fact be required and enforced from a jury? A majority of one vote in this Convention either puts a proposition in the organic law, or rejects it. A majority of one vote in each House of the General Assembly creates, repeals or modifies a positive law, regardless of the magnitude of the interests involved. A majority of the Senate of the United States ratifies or refuses to consent to a treaty with a foreign power. A majority of a single vote in a half a million in a pivotal State may elect a President of the United State, change the policy of the Government and bring prosperity or ruin to severity millions of people. And yet the majority of the committee deny that it would be sensible to apply this principle to a verdict of a jury in a civil suit at law. When a judgment is entered on a unanimous verdict, if an appeal is taken to the Supreme Court of the State it can be then finally adjudicated by a bare majority of the Justices. So in the Supreme Court of the United States, five of the Justices against four held the income tax unconstitutional ; and in the same court five of the Justices held that Porto Rico was not under the Constitution, and four that it was.


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Again in all ministerial and executive bodies the  majority rules, and the will of the minority must give way to that of the majority when lawfully expressed.  For these reasons we think that the provisions authorizing three - fourths of a jury to render a verdict in a civil case should become a part of our Constitution as it is of several other important States of the Union.

We therefore recommend as a substitute for Section 12, Article I, as reported by the committee, the following:

Art. I, Sec. 12: The right of trial by jury as heretofore enjoyed, shall remain inviolate; but in civil actions three-fourths of the jury may render a verdict.

Respectfully submitted,

Samuel Blackwell,

E. P. Wilson.

T. J. Cornwell.

MR. LOMAX - I move that the minority report be laid on the table.

MR. BLACKWELL - I hope that no such gag law will be adopted.

MR. BEDDOW - I ask the gentleman to withdraw that.

MR. LOMAX - Don't call it “gag law.”  I sat in my seat nearly a half a minute waiting for something and nothing was done, and then I made the motion to table. I withdraw the motion, however.

MR. BLACKWELL - As one of the minority that made this report, I desire to be heard in regard to the matter.

Mr. President, and gentlemen of the Convention, it is a fact that is known without the stating of it to this body that in a great many cases that are constantly being tried in our courts, cases of great importance that consume considerable amount of time, the tendency is growing to have mistrials, and those mistrials frequently result from one man refusing to agree with eleven others. And it is charged in many localities that influences are brought to bear to "fix" juries in order that mistrials may be had. There are cases being tried and constantly, where one party has no hope of a verdict, and yet as the law requires a unanimous jury, if that party can succeed in fixing one member of the jury he can secure a mistrial and a delay which makes it harder to have the witnesses there at a succeeding trial. As I say frequently those trials are of important cases and there are a great many witnesses and a considerable amount of time consumed and great expense incurred by the county. And yet under our present system, if you can fix


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CONSTITUTIONAL CONVENTION, 1901

it so that one man on the jury will not agree, the whole expense has to be gone over, the whole matter retried and frequently the delay of the retrial renders it impossible to get as many witnesses present as were at the first trial.

Every gentleman here has seen the growing tendency to have mistrials. Every man knows the expense incurred. While as I say these mistrials are frequently in the larger cases, cases of great importance, any case involving $20 may be tried by a jury and a mistrial result and in these cases more time and money, multiplying the money many times the amount involved by this requirement of a unanimous verdict.

Now the argument as presented in this minority statement prepared by Mr. Wilson from Clarke, sets forth the case very clearly. In every relation of life in Alabama as it is there stated, where the result is dependent upon the decision of a number, the principal of a majority rules. Then why should we have a unanimous verdict in civil cases?

MR. WILSON (Clarke) - You are crediting my brother's minority report to me.

MR. BLACKWELL - I beg pardon for the mistake. Why should a unanimous verdict on the question of fact be required and enforced from a trial jury?

There will be no answer to that except the statement that we have had this for a long time, that the present system is time honored, and, therefore, it ought not to be abandoned. If that principle were to govern none of the improvements of the nineteenth century that are demanded by our development ought to have been recognized and accepted. If everything of antiquity must be preserved and retained, we should have never had the splendid system of electric lighting we have today, but we ought to have retained and should now go back to the old tallow candle. We should go back to the stage coach or the ox team as a means of transportation rather than the splendid system of railways we have today. We should go hack to the dug - out and the tom - tom rather than the ocean steamers of today if antiquity alone is what shall recommend a thing to us.

MR. WEATHERLY - Is not the fact that an institution is old some evidence that it is good?

MR. BLACKWELL - Some evidence that it is good, but no evidence that there is not something better, no evidence that there cannot be an improvement. Men are constantly progressing, mind is constantly developing, surroundings are constantly changing and the result is we adapt our methods to the conditions surrounding us and thus create improvement.


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This system made its appearance in England soon after the Norman conquest.

Remember we are not proposing to abolish this system or to apply this amendment to criminal cases. We apply it only to civil cases.

As I say the system of a jury appeared in England soon after the Norman conquest in the Seventh Century, but at that time the jury was not required to be unanimous. Prior to the time of Edward IV. majority verdicts had been sufficient. We are not here dealing with the jury system, but simply with a unanimous verdict as to a matter of fact.

Now the jury was originally called to give evidence, and one of the reasons for having a jury of twelve was, as history shows, that that was considered the amount of evidence necessary to establish the guilt or innocence of parties to a very large extent. The jurors were taken from the immediate community in which the offense was committed and were supposed to he entirely familiar with all the facts and issues involved in the trial of the case. As civilization progressed and communities enlarged it became apparent that you got men on the jury now and then who were not competent to give evidence. But they were still legally summoned jurors and when such were brought in it became necessary to go out and get others on the outside as the jurors did not know all the facts.

MR. STEWART- Why not apply this to criminal as well as civil cases?

MR. BLACKWELL - For the same reason that was suggested by my friend Mr. Ferguson, that it is harder to accomplish a reform that is sweeping than a reform that just touches one little subject. If we had proposed to apply it to all trials, gentlemen would have risen and exclaimed. "You are absolutely proposing to try a man where his life is involved with a less number of jurors than heretofore required," so we preferred first to say to the gentlemen of the Convention that we are applying it to a $20 trial rather than to the trial of a man for his life.

MR. CUNNINGHAM - Does the gentleman apply this only to cases involving not more than $20?

MR. BLACKWELL - Twenty dollars and up.

MR. CUNNINGHAM - Not twenty dollars and down.

MR. BLACKWELL - Now there are many constitutions that have this provision: Colorado, Florida, Idaho, Iowa, Louisiana, Missouri, Michigan, Montana, Nebraska, New Jersey, North Dakota, Washington and Wyoming, and I think there are some others.


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Some gentlemen cite us in opposition to our contention to sections of the United States Constitution, but those sections do not apply to the State courts and the State Constitutions can absolutely fix any number that they feel inclined to as a jury. The number of jurors is limited in these States I have just mentioned. In Montana in civil cases two - thirds of the jury can render a verdict. In Idaho in all cases of misdemeanors five - sixths can render a verdict. In Iowa the legislature may, authorize a verdict by less than twelve jurors in any of the inferior courts of the State.

As I say, some have objected to this, claiming there is some conflict with the rights guaranteed by the Constitution of the United States. But the rights not delegated to the United States by the Constitution nor prohibited by the States are reserved to the States, and while the first six or seven amendments to the Constitution of the United States concede the right of trial by jury as they are not to be understood as restricting the powers of the State, and the States if they choose can provide for trials for all offenses against the State.

MR. BULGER - Does this section reported by the Committee prevent the legislature from providing for a majority verdict?

MR. BLACKWELL -  Yes. Heretofore the opinion has been that where no number was mentioned a jury meant twelve and that is unquestionably the result of everything that I have read on that subject.

MR. BOONE - Has it not been decided by the Supreme Court of the United States that the first ten amendments to the Constitution of the United States apply to Federal power and not to States.

MR. BLACKWELL - We are not talking about Federal power in this matter.

MR. BOONE - But I say that is the limitation upon Federal power and not the power of the State, so that the State has the power to make this amendment?

MR. BLACKWELL - There are cases in which juries are not used now, such as contempt of court and it is doubtful if a jury is aright in a contested election case as shown in our Alabama decisions and in damages to property taken for the public, the party is not entitled under many decisions to a trial by jury unless the Constitution of the State provides a tribunal for that purpose. The courts have said, where they have held that, that it is no more essential to have unanimity than the common law qualifications of jurors which have been continued in force-

THE PRESIDENT - The gentleman's time has expired.


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MR. BEDDOW - I rise to endorse the report of the minority of this committee. As the gentleman who has just taken his seat has truly said, in all lines and in all departments of life great progress has been made except in this one feature of our government - trial by jury. A number of States have already made some progress along this line, but Alabama is still in the rear.

MR. BOONE - She has not had the opportunity.

MR. BEDDOW - This is the first opportunity she has had. As I say, great progress has been made along all lines except this. I know there are gentlemen in this Convention who will say that the trial by a jury of twelve men is a matter that conies to us from ancient days, and is consecrated by precedent and cemented by time, but all this argument has been fully answered by the gentleman who has just taken his seat.

Because a thing is old is no reason why improvement cannot be had. Under that argument, the boy was right who was going to mill with a bag of corn to be ground and in one end of the bag he had corn and in the other a rock. He asked why he didn't put a peck of corn on the other side and carry a half bushel instead of just one peck. He said his father always carried a rock in one end of the bag and corn in the other, and he was going to keep that up.

This is the argument that the opposition used. Now we have some great men and some good men who are advocating this doctrine that a majority - even a majority of the jury - shall be able to render a verdict. One of our Justices of the Supreme Court of the United States, David J. Brewer. in a recent lecture to the students of Yale College advocated the abolition. of the system of unanimous verdicts by juries.

Judge A. B. Grace shows the ridiculousness of requiring unanimity in a jury. He says "This is an error that should not continue to exist. The majority system would practically remove the temptations of bribery. Under our law now one juror can dictate to all of the eleven others or make a mistrial. All a litigant now has to do is to fix one juror. Then he can have one of these mistrials, but with the majority system, he would have to bribe six jurors instead of one to even get a mistrial, which would always most surely leak out, and to get a verdict he would have to bribe seven jurors, and to keep his bribe a secret would be practically impossible."

Then he calls attention to facts that show the impractibility and the ridiculousness of enlightened States continuing the system of unanimous juries. He says "In every relation of life in America where the result is made to depend on the opinions and decisions of a number of persons, the principle of majority rule has been adopted with the sole exception of the verdict of a jury."


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CONSTITUTIONAL CONVENTION, 1901

A majority of one vote in each house of a General Assembly of Congress suffices to create, repeal or change a positive law, regardless of the magnitude of interests involved, as in the case of a currency bill, a tariff bill or a declaration of war.

A majority in the National Senate ratifies or refuses to consent to a treaty with a foreign power.

A majority of a single vote in half a million in a pivotal State may elect a President of the United States, change the entire policy of the Government, and bring prosperity or ruin to 70,000,000 of people. Yet lawyers, good lawyers, honest and patriotic lawyers, will roll their eyes in horror at the very suggestion that it would be sensible to apply the same principle in deciding a replevin suit of a “tickey” calf or a “pestle-tiled pony,” and yet again this calf or pony case when it has ascended by appeal from the Justice of the Peace court to the Circuit Court, and thence to the Supreme Court of the State, is decided by a bare majority of the judges, if they should happen to differ.”

Mr. President and gentlemen of the Convention, this is no new question.  It has been agitated for a hundred years.  I hold in my hand Forsyth’s History of Trial by Jury, a man known to the entire legal fraternity.

A hundred years ago it was advocated by men like those, that it was ridiculous to adhere to the old principles of unanimity in the verdict of a petit jury.

MR. WEATHERLY - Will the gentleman allow me to ask him a question?

MR. BEDDOW - I decline to yield for questions. I have but ten minutes and I want to talk during that time. The gentleman no doubt will have an opportunity to answer what I have to say.

On page 245 of Forsyth's History of Trial by Jury, he says: “In a valuable note in his Middle Ages, Mr. Hallam, speaking of the grand principle of Saxon polity, the trial of facts by the country says, from this principle, except as to the preposterous relic of barbarism, the requirement of unanimity, may we never swervemay we never be compelled in wish to swerve."

He like myself believed in the verdict of a jury, and it is one of the greatest institutions that the country was ever blessed with, and by this improvement upon it, there can be nothing on earth that can replace it. lout with it as it is. it permits one man to corrupt the jury and to throttle the will of eleven.

THE PRESIDENT - The gentleman's time has expired.

A DE LEGATE - 1 move that the gentleman's time be extended for ten minutes.


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OFFICIAL PROCEEDINGS

The motion was carried.

MR. BEDDOW - I thank the gentleman. Under the present system, all that has to be done is that some friend to some lawyer be upon the jury and he will decide with him right or wrong. Some person who has some interest in it, apart from justice and right, may purchase him before he enters upon the trial of the cause. You cannot tell me that is not the case. We see it every day in the week. In Birmingham not long ago there sat upon a jury a man who had said before the evidence had been heard, and before the charge of the court had been given to the jury, that he had come there for the purpose of hanging the jury, and that he has his money in his pocket, and he was going to sit there to make it a mistrial, unless the case was decided according to the way he desired it decided. The case went to trial, and in that self same case, that man did hang the jury and produce a mistrial, when there were eleven men who had agreed upon the verdict. You tell me that in an enlightened age like this, that cases like that should be permitted? That it should be within the power of such persons to prostitute justice? I say nay, nay, the time has come when we should rise up in our might and purify the jury system, by putting it beyond the reach of corrupt practices to produce mistrials, when justice is on the one side or the other.

Mr. Forsyth further says: “when the House of Lords sit as a court of appeal, or as a criminal court to try a peer or in the case of impeachment of a commoner, a bare majority of one is sufficient to determine the judgment, and it may be fairly asked why the rule should be different for twelve jurors, and why if there be a single dissentient amongst them, no verdict can be given?”

And gentlemen of the Convention, as early as seventy years ago, a commission in England, the place we get our jury system, investigated the question of the unanimity of the verdict of the jury, in the year 1830, and in their report at that time they say, "it is essential to the validity of a verdict that the jury should be unanimous, and regularly they are not allowed to be discharged unless by the consent of the parties, until such unanimous verdict has been returned. It is difficult to defend the justice or the wisdom of the latter principle. It seems absurd that the rights of a party in question of a doubtful and complicated nature, should depend upon his being able to satisfy twelve persons that one particular state of facts is the true one. As it is notorious that upon such questions a body of men so numerous are often found to differ irreconcilably in their views, it is obvious that the necessity of returning in every case a verdict, and a unanimous one. before they separate, must frequently lead to improper compromise among the jurors of their respective opinions. There is reason also to apprehend that where any of them happen to be actuated by partial motives, it must tend to produce a corrupt verdict. Indeed no one can


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have been much conversant with courts of justice, without frequently having heard the remark, where the verdict has been very long in suspense, that one or other of the contending parties has a friend upon the jury."

And acting upon that report, and in the light of the present age, numerous States of this Union have fallen into line and have adopted the salient feature that was recommended by that commission seventy years ago. In concluding his remarks in this chapter, the author says, "the time is fast approaching, if it has not already come, when trial by jury, like every other part of our legal fabric, will become the subject of the public criticism, and I feel persuaded that then it will be found impossible to justify or retain a rule which is both opposed to justice and expediency."

Now, Mr. President, and gentlemen of the Convention, in my count, there are at least 25 per cent. of the cases that go to the jury that result in a mistrial. It amounts to thousands and thousands of dollars to be paid out by the tax payers of this State, for no other purpose than of perpetuating a system that has been condemned by the wisest and best men that this or any other nation have ever known. Why should we stand back? We are here for the purpose of amending the Constitution, making it better, building it up, increasing its field of operation, and perfecting a system of law and of justice.

If you will make this amendment to this trial by jury, by reducing it in civil cases to three - fourths, instead of the unanimity rule, it will produce great good to your State. It will prevent fraud and corruption in the temples of justice, and under its beneficent influences this State will continue to grow and to prosper and the temple of justice will not be prostituted once where it is a thousand times at present.

MR. BOONE - Mr. President and gentlemen of the Convention. I wish to occupy your time only about two or three minutes further, on one suggestion that has not been made in the arguments of the gentlemen that have preceded me. Nearly all of the reasons have been shown why the minority report should be adopted, but one, which it occurs to me is of very great importance, showing, as it does, the system of jurisprudence in Alabama, where certainly as much property, as many rights are involved. This applies only in civil cases as proposed by the minority report, and if the arguments of the opponents of the measure are sound, why should a Chancellor have the power to decide questions involving thousands of dollars' worth of property in equity suits and pass on questions of fact, which are often the main questions in the case, and when an appeal is taken from his decree to the Supreme Court, where the judges also pass upon the facts, should the majority of those judges. three against two, affirm or reverse that decree ?


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Now let us look at the progress of the law in Alabama in the equity field: For years it was the law in this State that when the Chancellor rendered a decree on a question of fact, and an appeal was taken to the Supreme Court of Alabama, there was a presumption, mind you, a presumption, indulged in by the Appellate Court in favor of the regularity and the correctness of the decree below. But the Legislature saw there was no reason for that, there was no sense in indulging in that presumption, and that was stricken down and the Supreme Court now tries the case when it comes up de - novo. Now, why, should this one man, as some one has said on this floor today, this judge, who is but a man, and, as Stephen J. Field said in an opinion once in a case before the Supreme Court of the United States, because he sat on the bench, he did not fail to have the senses, he saw, he heard, and the sentiments, the same views, that a man had, were there with him. He tried to be perfectly impartial and to smother it all out, but he did not cease to be a man. Now, why should the Chancellor be able to pass on a question where there are hundreds thousands of dollars involved, and his decision be affirmed by a bare majority of a court, when in a damage suit against a railroad company you have got to have the unanimous verdict of the jury? I say, gentlemen, that we are in line with this amendment, with progress, with the thoughtful men of all nations, and we should not claim that all the wisdom of the Union is here in Alabama; but we can profit by what has been found to be good in other States, and there is not a single State which has ever adopted this proposition (some of them having adopted it more than forty years ago), that have ever abandoned it, and I do hope that the Convention will adopt the minority report.

MR. GRAYSON - I desire to offer an amendment.

The amendment was read as follows: Amend by striking out "three - quarters" and insert "five - sixths."

THE PRESIDENT - The question will be upon the amendment proposed by the gentleman from Madison to the amendment proposed by the minority report.

MR. GRAYSON - This is an entirely new departure in our courts and to require a three - quarters majority verdict may be too radical a change. I am satisfied, though, it will be to the best interest of the State, and to the best interests of the litigants, not to require a unanimous verdict, because it so often results in mistrials, brought about by corruption, but the change to three - fourths is too great, and therefore I move this amendment, making it fivesixths. In that case it will require ten jurors, whereas under the amendment of the minority of the committee, it would require only nine.


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CONSTITUTIONAL CONVENTION, 1901

MR. BAREFIELD - I move to lay the amendment, and the report of the minority of the Committee on the table.

MR. REESE - I ask for a division of the question.

THE PRESIDENT - A division of the question is called for. This question will be upon the motion to table the amendment offered by the gentleman from Madison.

The motion to table was carried.

THE PRESIDENT - The question recurs upon the amendment offered by the minority report.

MR. BLACKWELL - Upon that I call for the ayes and noes.

THE PRESIDENT - The ayes and noes are called for. The question is, is the call sustained.

The requisite number  rising the call was sustained.

THE PRESIDENT - As many as favor the motion to table the minority report will vote aye and those opposed no, as their names are called.

During the call of the roll:

MR. JONES (Montgomery) - I am paired with the delegate from Mobile (Mr. Smith) ; if he were present he would vote aye and I would vote no.

MR. WILSON (Clarke) - I am paired with the delegate from Mobile (Mr. Pillans.) If he were here he would vote no and I would vote aye.

The call of the roll resulted as follows:

AYES.

Messrs. President,

Jackson,

Opp,

Barefield,

Jones, of Hale,

O'Rear,

Beavers,

Jones, of Wilcox,

Parker (Cullman),

Bethune,

Leigh,

Parker (Elmore),

Byars,

Lomax,

Porter,

Cardon,

Long, of Walker,

Rogers (Sumter),

Carnathon,

Lowe, of Jefferson,

Sanders,

Cunningham,

Lowe, of Lawrence,

Spragins,

Espy,

Martin,

Stewart,

Foster,

Maxwell,

Thompson,

Glover,

Merrill,

Waddell,

Graham, of Talladega,

Miller (Wilcox)

Walker,

Henderson,

NeSmith,

Weatherly,

Hood,

Norman,

Willet.

Howze,

O'Neal (Lauderdale),

 Total - 43. HRHRHR 1688

OFFICIAL PROCEEDINGS

NOES.

Ashcraft,

Grayson,

Pitts,

Banks,

Haley,

Reese,

Beddow,

Hodges,

Reynolds, of Henry,

Blackwell,

Inge,

Rogers (Lowndes),

Boone,

Jones, of Bibb,

Sanford,

Brooks,

Kyle,

Selheimer.

Bulger,

Macdonald,

Smith, Mac. A

Burns,

Malone.

Smith, Morgan M

Chapman,

Moody,

Spears,

Cobb,

Murphree,

Watts,

Cofer,

Oates,

White,

Dent,

O'Neill, of Jefferson,

Wilson (Wash'gton),

Eyster,

Palmer,

Winn,

Fletcher,

Pearce,

Foshee,

Pettus,

 Total - 43.

ABSENT OR NOT VOTING.

Greer, of Calhoun,

Norwood.

Almon,

Greer, of Perry,

Phillips,

Bartlett,

Handley,

Pillans,

Browne,

Harrison,

Proctor,

Burnett,

Heflin, of Chambers,

Renfro,

Carmichael, of Colbert,

Heflin, of Randolph,

Reynolds (Chilton).

Carmichael, of Coffee,

Hinson,

Robinson,

Case,

Howell,

Samford,

Coleman, of Greene,

Jenkins,

Searcy,

Coleman, of Walker,

Jones, of Montgomery,

Sentell,

Cornwall,

Kirk,

Sloan,

Craig,

King,

Smith (Mobile),

Davis, of DeKalb,

Kirkland,

Sollie,

Davis, of Etowah,

Knight,

Stoddard,

deGraffenreid,

Ledbetter,

Tayloe,

Duke,

Locklin,

Vaughan,

Eley,

Long, of Butler,

Weakley,

Ferguson,

Lowe, of Jefferson,

Whiteside,

Fitts,

McMillan, of Baldwin,

Williams (Barbour),

Freeman,

McMillan (Wilcox),

Williams (Marengo),

Gilmore,

Miller (Marengo),

Williams (Elmore),

Graham, of Montgomery,

Morrisette,

Wilson (Clarke),

Grant,

Mulkey,

By a vote of 43 ayes and 43 noes the motion to table was lost.

THE PRESIDENT - The question recurs upon the adoption of the minority report.

MR. BURNS - An amendment.


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CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT - The gentleman from Montgomery has the floor.

MR. LOMAX - I yield for an amendment.

MR. BURNS - It is too late to call for a verification of that last vote I suppose?

THE PRESIDENT - It is too late now.

MR. SANDERS - I rise to make a motion to adjourn. I think that a question of so much importance should be voted upon when more delegates are present. I therefore move that the Convention do now adjourn.

The motion to adjourn prevailed.

Leaves of absence were granted to Mr. Carmichael (Coffee) for today, Mr. Stoddard for Monday and Tuesday on account of the illness of his father, Mr. Opp for Monday, Mr. Norwood for today, and Mr. Cofer for Monday.

MR. PROCTOR - I ask unanimous consent to submit the report of the Committee on Journal.

There being no objection, the report was read, stating that the journal for the thirty - seventh day of the Convention had been examined and found to be correct, and the same was adopted.

And thereupon the Convention adjourned until 9:30 o'clock, a. m.  Monday.

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