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___________________

THIRTY ‑ NINTH DAY

MONTGOMERY, ALA., Monday, July 8th, 1901.

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

O Lord God, our Heavenly Father, we are brought under renewed obligations to Thee, to praise Thy great name, for that kind providence that has been over us and above us, that our health and lives have been preserved, and we are permitted this morning to assemble here, to prosecute the business pertaining to this work. Accept the gratitude of our hearts, and the praises of our lips, for all the blessings Thou hast vouchafed to us. And we invoke Thy presence this day to give us divine light and wisdom, to transact the business pertaining to this day, in the fear of God, and in the interest of our commonwealth. Bless the homes and families of these Thy servants during their absence. May


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their lives, and their health, be precious in Thy sight, and we pray Thee to command Thy blessings upon all the people. May Thy kingdom come in all of its righteousness and purity, and pervade the hearts and lives of all Thy people. Forgive us our sins, and prepare us for every good word and work, and may we so live as individuals and as representatives, that when the end of life shall come with us, we may have the consciousness of knowing we have done the best we could. May we meet Thy divine approbation at last. May we so have lived that Thou wilt say to us, well done, good and faithful servants, and in Heaven's bright and happy home be gathered at last, and we pray forever in Christ our Redeemer, Amen.

Upon the call of the roll, ninety ‑ five delegates responded to their names.

The report of the Committee on Journal was read, stating that the journal for the thirty ‑ eighth day of the convention had been examined and found to be correct, and the report was adopted.

Leaves of absence were granted, as follows: Indefinite leave for Mr. H. W. Cardon, on account of sickness, Mr. Brown of Talladega for Monday and Tuesday, Mr. Inge of Hale for today, Mr. Moody for today on account of sickness, indefinite leave for Mr. Studdard on account of sickness in his family indefinite leave for Mr. O'Rear on account of sickness, Mr. Tayloe for today, Mr. Coleman (Greene) for today, Mr. Locklin for today.

The roll of delegates was called for the introduction of ordinances. resolutions, etc.

Ordinance No. 413 by Mr. Burns:

Amendment to article on taxation.

Amend by adding ‑ section or proviso ‑ That no license tax shall be required by State, county or municipality of any veteran or ex ‑ soldier of the Civil War of 1861 ‑ 65, who is unable to perform manual labor, and whose taxable property does not amount to the exemptions allowed by this Constitution. Provided, That this ordinance shall not apply to the sale of malt or spiritous liquors.

Referred to Committee on Taxation.

MR. BURNS ‑ I am requested by several delegates to offer a resolution which has been sent to the clerk's desk, and I shall move a suspension of the rules in order that it may be passed.

The resolution was read as follows:

Resolution No. 231 by Mr. Burns:


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Resolved, That Resolution No. 184, introduced by Mr. Cunningham, proposing to regulate leaves of absence, be and is hereby rescinded.

MR. BURNS ‑ That resolution has reference to the resolution offered by the gentleman from Jefferson, a few days ago‑

TH E PRESIDENT ‑ The question is not debatable.

MR. BURNS ‑ I was going to move a suspension of the rules.

Upon a vote being taken the rules were suspended.

THE PRESIDENT ‑ The question is on the passage of the resolution.

MR. BURNS – I suppose each delegate here understands what resolution the present resolution has reference to.  The other resolution passed by the house I consider not at all complimentary to the members of the House, that they shall not be entitled to pay for services unless absent on account of sickness.  I think every delegate on this floor should be the judge for himself of the necessity, and should answer back to his constituents and not to the members of this Convention, for any leave of absence he may desire.  I hope that the resolution will pass.

MR. COBB– Just one word.  I believe that the passage of that resolution the other day was an error, not only for the reason just given, but for the additional reason, there are causes which call men away from this Convention other than sickness of themselves or their families, and which justifies their going. They only go for a short time.  They have some important matters to look after, and no harm comes because of their absence.  There is always enough here to go on with the business and not enough members leave at one time to prevent the business of the Convention being transacted.  A man that wants to go, who is called away on necessary business, generally regards the time and sees when he can go without any danger to any pending matter before the Convention, and I think that it is a matter that ought to be left just as it was before the passage of the original resolution, and I support the proposition now pending before the House.

MR. CUNNINGHAM ‑ The propriety of being paid for services not rendered is a matter of individual conscience. I presume that any member of this Convention could refuse when granted leave of absence for business reasons, to accept the $4 a day, and in that way satisfy what conscientious scruples he may have upon the question.

But as a matter of business I believe that this Convention has jurisdiction of this question, and I believe it should not permit a delegate to go home to attend to his private business and at the same time receive his per diem. We are not on a salary by the month. We are here on a per diem, and for that reason I believe


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that the resolution introduced by myself, about two weeks ago, is a good resolution.

MR. JENKINS ‑ I would like to ask the gentleman a question.

THE PRESIDENT ‑ Does the gentleman yield to the gentleman from Wilcox?

MR. CUNNINGHAM ‑ Certainly.

MR. JENKINS ‑ Does he not think as a matter of fact we could get along faster when a fewer number is here than when there is a full attendance.

MR. CUNNINGHAM ‑ I am very glad the question has been asked, because that has been privately urged as a reason for the repeal of this resolution.

MR. WHITE ‑ Will the gentleman allow a question?

MR. CUNNINGHAM ‑ The gentleman will wait until I answer the other question. If it had been in the interest of the people of the State of Alabama to have a smaller number in this Convention, the probability is that those who are responsible for the enabling act would have put a smaller number in it. Therefore I believe that the gentlemen who have been elected to this Convention should come forward and do their duty, unless there is a providential reason why they should not do it. That is my honest conviction upon the subject.

MR. WHITE ‑ Does the gentleman yield for a question?

MR. CUNNINGHAM ‑ Certainly.

MR. WHITE ‑ The gentleman from Wilcox asked if you did not think we would get along better without some of the members here----

MR. JENKINS ‑ I rise to a question of privilege. I did not say that, but I said that we would get along faster.

MR. WHITE ‑ Faster, yes. I would ask the gentleman from Jefferson if it is not a fact that the gentlemen who have business at home are probably the most desirable members?

MR. CUNNINGHAM ‑ Mr. President, I must say that I am not competent, nor is it my duty to pass upon the efficiency of individual members of this Convention, of those who are present, or of those who are absent. But I will say this much, that it strikes me that in the discharge of this very great and sacred duty, that we have, assumed, we should do so or at least not accept compensation for our negligence or indifference. I do not care to


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prolong the discussion. I move to lay the resolution on the table, and on that I call for the ayes and noes.

The requisite number of members not rising, the call was not sustained.

THE PRESIDENT ‑ The question is on the motion to table the resolution.

Upon a vote being taken the motion was lost.

MR. OATES ‑ I do not wish to prolong the time consumed with this matter at all, or to take any active part in the discussion, but I desire to say that the resolution which was offered by the delegate from Jefferson and adopted is not unprecedented at all. It was once found that absenteeism was so great in the House of Representatives of the United States, that a rule of that kind was adopted. I recollect distinctly when I was away from there, canvassing in this State for Governor, that I lost my pay. I did not get any during that time, and I am inclined to think it is a very healthy rule. If a man cannot discharge the duty of an office, he ought to resign and get out. That is the true doctrine. If he gets compensated, if it is worth anything to him, he ought to stay and perform the duties. Wherever a gentleman is called away by sickness of his family, or himself, under the rule adopted, I believe it does not affect his compensation at all. But wherever he has business of such importance as to draw him away from here, then we can well afford to lose the little $4 a day he would otherwise get, and when he don't do anything to earn it I don't think he ought to get it.

MR. REESE ‑ I move the previous question.

MR. O'NEAL ‑ There is no second to the motion.

MR. COBB ‑ I ask the gentleman to withdraw the motion.

THE  PRESIDENT ‑ Does the gentleman yield?

MR. REESE ‑ Yes sir.

MR. COBB ‑ Just a moment. I want to say that I am not affected by this, so far as I am personally concerned, and it is not on that account I make the point that I now do before the Convention, but the gentlemen are in error in supposing that because a man goes home on a sudden call, it may be on some private business, that he is not discharging his duty as a delegate to this Convention. It does not necessarily follow that he is avoiding his duty when he goes home for a day. The mere question of losing three or four dollars, supposing a man's house should burn up, as a gentleman suggests to me, or a matter of that sort calls him away, it struck me at the start, and strikes me now, as rather too small a matter to be dealt with by this Convention in this


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way. It is not the matter of a little amount, which no delegate probably cares anything about, but it is a kind of reflection upon the members of this Convention, confessedly a patriotic, conservative and faithful body of men. Therefore I think this resolution ought to be rescinded, and I want to say when my friend (Mr. Oates) failed to get his pay in Congress, he did not do so because it was demanded of him, but because he voluntarily gave it up. Because it was expressly ruled in Congress that when a man was absent by leave, or absent any way, his pay could not be taken from him, except by his consent. It was so ruled by the Speaker. If you remember, when Bailey made the fight‑

MR. OATES ‑ Yes, I know the Speaker who ruled so there, Thomas B. Reed.

MR. REESE ‑ I now renew my motion.

THE PRESIDENT ‑ Does the gentleman call for the previous question? The Convention seems ready to vote on the resolution.

MR. REESE – I withdraw the motion, then.

MR. CUNNINGHAM ‑ I call for the ayes and noes and I hope the Convention will sustain the call.

MR. BULGER ‑ I make the point of order that the call for the ayes and noes was made and not sustained.

THE PRESIDENT ‑ On the motion to table. A call is made for the ayes and noes; the question is, is the call sustained?

THE PRESIDENT ‑ On the motion to table. A call is made for the ayes and noes; the question is, is the call sustained?

A sufficient number not rising, the call was not sustained. Upon a vote being taken, the resolution was thereupon adopted.

MR. GREER (Calhoun) ‑ I rise to a question of personal privilege. When I left Wednesday afternoon I paired with a gentleman, Judge Stewart from Perry, in favor of the Weakley amendment. I have been informed he is not present, but that he stated to the Convention he was paired with some member and did not know who, and he declined to vote. I would like, Mr. President, to be recorded as being paired in favor of the Weakley amendment.

MR. GRANT ‑ I have been requested to ask that this petition be read and referred to the Committee on Printing, etc.

The motion to read the petition was carried and the same was read as follows:


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Anniston, Ala., July 3, 1901.

To Calhoun's Representatives in Constitutional Convention:

Gentlemen ‑ In view of the contemplated printed matter to be given out by the Constitutional Convention now in session, we, the printers of Anniston Typographical Union, No. 419, under International rule, submit the following resolutions for your consideration:

Resolved, first, that we request our representatives in Convention to insist that the Allied Printers' Union Label be used in the execution of all printed matter given out by said Convention, and,

Be it further resolved, That every effort put forth by our representatives to this end will be considered as a token of high respect to the laboring men; and

Be it further resolved. That such action on the part of the Constitutional Convention would be not only an encouragement to the laboring element in the State, but would be the means of strengthening unionism and co ‑ operation among working men; and we will regard such action as a fitting recognition of the right of labor and be a guarantee that our representative men recognize the laboring element of our population and their value to the State. J. H. Church, J. K. Smith, J. F. Ruddisill,

Committee, T. A. Moore, President, J. R. Ayres, Secretary,

Referred to Committee on Stationery, Printing and Incidental Expenses.

MR. SPRAGINS ‑ I send a petition to the clerk's desk and ask that the body of it be read and the petition referred to the Committee on Taxation.

The petition was as follows:

Petition No. 15, introduced by request, by Mr. Spragins of Madison:

We, the undersigned business men and citizens of the city of Huntsville, Madison county, most respectfully petition our delegation to the Constitutional Convention, Hons. R. E. Spragins, R. W. Walker, A. S. Fletcher and J. W. Grayson and the members of the Constitutional Convention, not to enact any law in our Constitution for the collection of a privilege tax. We believe that such a tax is unjust.


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J. A. Anderson & Co., W. L. Halsey, Van Valkenberg & Matthews, Luke Matthews, treasurer; Huntsville Cotton Mills, J. A. Wallace, Jr., D. C. Monroe, W. T. Chofin, J. W. Kingler & Co., Cantrell & Young, George T. Marsh, agent Merrimack Mfg. Co., Huntsville Furniture & Lumber Co., James A. Ward, Jr., secretary; W. H. Rowe Knitting Co., by Charles E. Shaver; Dallas Mfg. Co., by J. S. Davidson, superintendent.

Referred to Committee on Taxation.

On the call of the standing committee, the chairman of the Committee on Executive Department submitted the following report:

The report and ordinance were read as follows:

MR. PRESIDENT' ‑ The Committee on the Executive Department, to whom was referred the resolution introduced by the gentleman from Montgomery (Mr. Watts) as to the advisability of framing and reporting an ordinance to provide for the succession in the office of Governor, have had the subject under consideration and direct me to report the accompanying ordinance, the passage of which the committee respectfully recommend.

Thomas G. Jones, Chairman.

An ordinance to provide for the succession in the office of Governor, in event of his death, resignation, removal from office, disability, or absence from the State, occurring prior to the next election of a President of the Senate and Speaker of the House.

Section 1. ‑ Be it ordained lay the people of Alabama, in Convention assembled, that in event the Governor dies, resigns, is removed or under disabilities, or absent from the State for more than twenty days prior to the next election of a President of the Senate and a Speaker of the House, the power and duties of the office shall devolve in the order named, upon the Honorable D. J. Meadors, the last President pro. tem of the Senate ; next upon Hon. A. M. Tunstall, the last Speaker pro tem of the House; next upon the Attorney ‑ General; next upon the Auditor; next upon the Treasurer; but the powers and duties of the person exercising the office of Governor in lieu of the Governor shall cease and terminate whenever a President of the Senate and a Speaker of the House shall be elected at the next meeting of any General Assembly.

Sec. 2. ‑ Be it further ordained, that this ordinance shall go into effect immediately.

MR. JONES ‑ If I am in order I will state that this is an ordinance looking to what might be an emergency. We have no president of the Senate and no Speaker of the House, and the


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committee reported an ordinance to cover a contingency of that sort, and it covers it only until the General Assembly meets, when there will be a president of the Senate and Speaker of the House. That is the reason they have provided it should become effective immediately.

THE PRESIDENT ‑ The rule will require it to lie on the table and be printed.

The Committee on Executive Department submitted a further report and resolution as follows:

Mr. President, the Committee on Executive Department direct me to report the accompanying ordinance for the relief of E. L. May and to recommend its passage.

Thomas G. Jones, Chairman.

An ordinance for the relief of E. L. May.

Be it ordained by the people of Alabama, in Convention assembled, that the sum of $35 be and the same is hereby appropriated to by E. L. May for his services as clerk for attending the meetings of the Committee on the Executive Department, and transcribing the article on the Executive Department as finally adopted and reported by the committee.

THE PRESIDENT ‑ The ordinance will lie on the table and be printed.

MR. JONES (Montgomery) ‑ I do not think it is necessary to print it, unless somebody desires to have it printed.

THE PRESIDENT ‑ The rule requires it shall be printed.

THE PRESIDENT ‑ The next order of business is the report of special committees, of which there are none, and next unfinished business, the report of the Committee on Preamble and Bill of Rights.

MR. PETTUS ‑ I move to reconsider the vote by which Section 10 of the report of the Committee on Preamble and Declaration of Rights was passed. I desire to state, Mr. President, that it ought to be either amended or stricken out in the second and third lines.

In the old Constitution Section 10 reads "that no person shall twice be put in jeopardy of life and limb," and the Convention adopted on Saturday and additional clause which says courts may for reasons fixed by law discharge juries from the consideration of any suit, and no person shall gain any advantage by reason of such discharge of the jury.

MR. WATTS ‑ I rise to a point of order.


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THE PRESIDENT ‑ The gentleman will state the point of order.

MR. WATTS ‑ That this Convention has under consideration Section 12, and about to take a vote whether or not the minority report shall be adopted.

MR. PETTUS ‑ Under the rules a motion to reconsider can be offered at any time within one hour after the reading of the Journal.

THE PRESIDENT ‑ Rule 27 says "when a vote has passed, except on the previous question, or on a motion to lay on the table, or to take from the table, it shall be in order for any delegate who voted with the majority to move for a reconsideration thereof, on the same day, or within the morning of succeeding day, and such motion, if made on the same day shall be considered immediately after the approval of the Journal on the day succeeding that on which it is made," etc.

The chair will inquire if the gentleman voted in favor of the adoption?

MR. PETTUS ‑ There is no record of the vote, and I don't remember just now how I voted, and I submit that where there is not an awe and no vote anybody can make a motion to reconsider.

THE PRESIDENT ‑ The ruling of the chair has been the other way.

MR. LOMAX ‑ If the gentleman from Limestone is not able to state how he voted I submit his motion to reconsider is not in order.

MR. WILLIAMS (Marengo) ‑ I voted aye on the proposition, and I now move to reconsider the vote by which Section 10 was passed.

THE PRESIDENT ‑ The chair will make a ruling that delegates can understand. The chair ruled the other day on a similar question that while the rule is as referred to by the gentleman from Limestone, it is the opinion of the chair and the general parliamentary authorities hold that a motion to reconsider must be made by one who voted in favor of the proposition, and it must affirmatively appear that he did so vote.

MR. WILLIAMS (Marengo) ‑ I voted aye on the passage of the section, and I now desire to make a motion to reconsider the vote by which Section 10 was passed on Saturday, and I yield the floor to the gentleman from Limestone.

MR. PETTUS ‑ The old Constitution provides that no person shall twice be put in jeopardy of life and limb, and I see no


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reason why an additional clause should be adopted authorizing the courts to discharge jurors from the consideration of any cause, and if the section is adopted that could be done over the protest of the defendant as the practice is and as has been stated by the gentlemen who have advocated the adoption of the section. When a court now discharge the juries it is by the consent of the defendant, and the defendant will not insist on forcing a verdict in an improper case. I think this should be an improper case. I think this should be amended so that the jury may be discharged on the request of the majority of the jury as suggested by one of the delegates, or else it ought not at any rate to be done over the protest of the defendant. And if the amendment is not adopted, making it necessary for the majority of the jury to concur in the request there ought to be a time limit, and it ought not to be in the discretion of the judge to discharge the jury until it has been sitting for at least the limited time, and has made an earnest effort to agree on a verdict.

MR. O'NEAL (Lauderdale) ‑ This would apply to civil as well as criminal cases?

MR. PETTUS ‑ I am speaking of the effect it has on criminal cases, and I don't think the other is a matter of so much importance. As the rule now stands, I can see there may be cases in which a hardship may be worked upon the jury, that a defendant might insist on keeping a jury for a long time on account of the will of one of twelve men on the jury, but it seems to me that he would do so at his own risk, and that he would prefer a mistrial and to take his chances again before another jury, but as this section now stands, as adopted Saturday, reported by the committee, the judge is authorized to discharge the jury before they have made an attempt to reach a verdict, and it seems to me that it is rather too much arbitrary power to give him in this matter, and it ought to be limited so the jury will not be discharged before a certain tine has elapsed after the case has gone to the jury, or ought to be done at the request of a majority of the jury sitting on the case, and I do not see, I do not know of any instance of abuse under the old section. It seems to me after the case goes to the jury and the jury is discharged when they might have reached a verdict acquitting the defendant that he has been twice put in jeopardy under this section. While I have no argument to make on it, I submit it is a dangerous innovation and this Convention ought to reconsider the section for the purpose of striking it out, and leaving it as it was in the Constitution of 1875. As the law is now, it may be, as I said before, that it sometimes works a hardship on the jury. But if you leave it as it is now in this section it may work a hardship on the defendant, and the defendant's interest ought to be protected and safeguarded, as is the policy of our laws.


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MR. JONES (Montgomery) ‑ Mr. President. I am in hearty sympathy with the purpose which the committee had in view in giving the judge some power to discharge a jury in a criminal case, but I am in favor of reconsideration, because I think on a reconsideration we may better the article. Now it is known in United States courts the judge can discharge the jury whenever he sees proper in a criminal case.  The rule has been otherwise in Alabama, but we know that judges are human, like the rest of us.  I do not think the judge ought to have it in his power simply if the jury stays our beyond what he thinks they ought to, to say to them: “I will discharge you; you have had time enough to find a verdict.” I am in favor of reconsidering it for the purpose of an amendment, that the judge on the request of six of the jurors may discharge them.  I think that would accomplish everything the committee had in view and be in improvement on the present.

MR. LOMAX ‑ Will the gentleman allow me to call his attention to the fact that the language is that the “court may for reasons fixed by law, and that leaves it to the Legislature to say what shall authorize the discharge of a jury; the fixing of the particular reason for the discharge is a matter of detail that ought not to go into the Constitution.

MR. JONES ‑ I see the force of that, but I would not wish the Legislature to pass on it at all.  My idea would be that whenever half of the jury ask to be discharged and the judge in the exercise of his judicial functions, thinks they ought to be discharged, to give him the power to do it.  It will be difficult to frame reasons which would cover cases satisfactorily, and I think it will be better left to the conscience of the judge on the request of six jurors.

MR. WEATHERLY (Jefferson) ‑ Mav I inquire if this would become operative without legislative action?

MR. LOMAX ‑ No:  the Legislature would have to make provision.

MR. WILLETT ‑ This seems to me to be a dangerous innovation. I agree with what the gentlemen from Limestone says. The Legislature may prescribe for what reason a jury may be discharged when they are apparently not going to agree, but the judge may act arbitrarily, and what is the provision that immediately follows, however arbitrarily that judge may act, however much the defendant may object to the discharge of that jury, whatever reason the Legislature may prescribe whereby the judge may discharge that jury, he may go out and get reasons of his own and act arbitrarily, and it expressly says no one shall gain any advantage by reason of the discharge of the jury. Isn't that a dangerous Constitutional provision, isn't that dangerous in this


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State to say that a judge shall act as he pleases, that the Legislature can prescribe reasons, and yet with the defendant sitting there protesting against the discharge of jury trying him for his life or liberty that the Constitutional provision says that he shall not take advantage of the fact of the arbitrariness of the judge or get the benefit of it in the supreme court. It is too dangerous and I am in favor of the motion to reconsider.

MR. WATTS

MR. WEATHERLY (Jefferson)

MR. WATTS

MR. O'NEAL

MR. WATTS

MR. O'NEAL

MR. WATTS

MR. O'NEAL

MR. WATTS


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hours, or a juryman takes sick, or a juror called from the jury room by necessity.  The idea is to prevent setting up in a subsequent trial the fact that the jury was discharged in accordance with the forms prescribed by law.

MR. LOMAX ‑ As stated by the gentleman from Montgomery, Mr. Watts, the sole purpose of this amendment to the bill of rights is to enable the Legislature to fix certain rules which shall govern judges in discharging juries, and to provide that when a judge acting under the rules prescribed by law does discharge a jury that the defendant nor the State can take any advantage of that discharge, but that the case go on and be tried de novo. Now the matter as suggested by my friend from Montgomery (Mr. Jones) was purely a matter of Legislative detail, but so far as I am concerned, in my practice of the law, I have never yet seen a jury come out and say, six of us want to be discharged, or five of us want to be discharged, but invariable come out after considering the case and say to the court that they ask to be discharged because it is impossible to agree on a verdict.  Now, under the operation of the law in some counties of the State, notably in this county, in Mobile and Jefferson county, a juror can be kept in that court three solid months considering a verdict where it is impossible for them to agree.  Now that power ought not to be in the hands of anybody, that is a power of condemning the jury to hard labor for the county just as much as if they went to the coal mines.  That don’t interfere with any right of the defendant, except his right to sit there and refuse to permit men who have given a fair, a just and an earnest consideration to his case, who are unable to agree, to be discharged, to prevent him from keeping those men there an interminable length of time, and we do not put in it in the discretion of the judge, but say the Legislature, the General Assembly shall fix the rule which shall govern the judges in the exercise of their power.  Now if the judges overstep those rules, the defendant has the right to appeal as he had before.

MR. WEATHERLY ‑ Could not the Legislature under that leave it to the judgment of the judge?

MR. LOMAX ‑ I think not, because the section expressly says that he shall have the right to do it for reasons fixed by law, and consequently the Legislature would have to fix reasons for the judge to act upon.

MR. PETTUS ‑ Do you object to this amendment: Insert after the word "case" in line three "after a jury has had a case twenty ‑ four hours, and a majority report that they cannot reach a verdict–

MR. LOMAX ‑ Yes, I object to it, because it is purely a matter of legislative detail and has no business; in the Constitution.


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I think gentlemen, we ought not to insert in the Bill of Rights of the Constitution any matters of Legislative enactment, and I submit that all of these propositions made in reference to this section are simple matters of detail under the provisions of the Constitutional enactment which we propose. It can work no harm to anybody, it simply makes the defendant go through another trial and that is all without taking away a single right, it enables juries to be discharged that ought to be discharged, and the section ought to be adopted in my judgment. I move Mr. President, that the motion to reconsider be laid upon the table.

A division was called for on the preposition to lay on the table.

MR. REESE ‑ On that I call for the ayes and noes.

The call for the ayes and noes was not sustained.

MR. REESE ‑ I make the point of order that a motion to reconsider cannot be laid upon the table.

THE PRESIDENT ‑ Does the gentleman refer to a rule?

MR. REESE ‑ Yes, to Rule No. 27.

THE PRESIDENT ‑ The point of order is overruled.

A vote being taken the motion to reconsider was laid upon the table by 52 ayes to 37 nays on division.

THE PRESIDENT ‑ When the Convention adjourned on Saturday, it had under consideration the minority report on Section 12, and the gentleman from Dallas sent up an amendment which was not read as the time for adjournment had arrived.

MR. BURNS ‑ I ask unanimous consent to withdraw the amendment.

THE  PRESIDENT ‑ The Chair hears no objection.

The question is on the adoption of the minority report on Section 12, that in civil actions three ‑ fourths of the jury may render a verdict.

MR. LONG (Walker) ‑ I am not a corporation lawyer, but I want to talk to this Convention a moment on a plain business proposition. I can see no good reason why three ‑ fourths of the jury should be entitled or allowed to bring in a verdict. We all know very well and we had as well be frank among ourselves that this is but a step of some men who are hostile to corporations, in order to get large verdicts and unjust verdicts against corporations in the State of Alabama. That is true, because I can cite instances, and I have in mind now an instance that happened in a sister county of mine where a preacher riding on a half fare


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ticket got jolted a little and brought a suit against a railroad company and eleven men wanted to give him a verdict for $7,500, but one man alone held that jury and afterwards that preacher gladly compromised the case for $150, and he was not entitled to one hundred and fifty cents.  Now I will tell you what the farmers of this country will think about this.  In my humble judgment they will say: Do you know what they have down there in Montgomery?  Another one will say no, I have not heard what they have done.  Well they have fixed it so the fellows in town can get a verdict agin us with just nine men.  We are poor folks and cannot get but three of our friends on the jury, and those fellows round town know them and can pick the jury agin us.  The farmers and people of this State are not clamoring for this.  Nobody wants it except men who are hostile and who are our after corporations in this State.  This question was not discussed before the people of Alabama.  Nobody claimed that we were going to fix a three-quarter clause so far as juries were concerned.

MR. WILLIAMS ( Marengo ) ‑ Was it not discussed to this extent, that we were not to tamper with the jury system?

MR. LONG – I cannot answer that.  I don’t know, but I do know there was no three-quarter clause advocated in this State so far as I know.  It was not in the Democratic platform. Here we are asked to give up a system that has existed for centuries. If there is merit in this question there should be power given to the Legislature to do this, so if it proves a bad thing it can be undone.  But there is no sensible reason why it should be put in the Constitution of Alabama.  The people will rise up and rebuke it, you will invite the hostility of the corporations in Alabama. The farmers themselves will rebuke it, and believers in fair play will rebuke it.  I am opposed to the three-quarter clause in the insurance laws of this State, and to the three-quarter clause in the jury laws.  Why, when the lawyer comes to select the jurors in a murder case, or in an important case, they select some sap headed fellow who has got nothing himself and wants nobody else to have anything, and puts him on the jury.  Nine times out of ten you cannot get over three smart men on the jury on an average in this State.  You know that is a fact.  I have heard arguments made in the jury room myself that so and so has plenty of money, this corporation is rich, this poor fellow is poor, let us take it away from them.  Everybody knows that that has happened in the jury box.  I think this minority report will do a great deal of harm in Alabama. I want the Convention to look at this thing fair in the face, and I ask is it right to put a three-quarter clause in our Constitution which will invite the antagonism of everybody in the State, that wants fair play, corporations, and everybody else?  The people don’t want it, and I hope and believe this Convention will not have it done.


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MR. THOMPSON ‑ The proposition of the minority admits that it is a danger. Gentlemen of the Convention, if it is good in civil cases why is it not good in criminal cases?  By every rule it ought to come in criminal cases because as you all know the burdent of proof in a criminal case beyond all reasonable doubt makes it harder to get a unanimous verdict than it does in civil cases, where the plaintiff only has to make out his case to the reasonable satisfaction of the jury.  I say if it is good in a civil case, it ought to apply in a criminal case.  I don’t believe there are three men in the Convention who for a moment would think of taking a man’s life or his liberty except upon a unanimous verdict.  Then I submit that a man’s property or his homestead ought to be just as sacred as his liberty.  It is not right to take his land in an ejectment suit, for those cases often turn upon questions of fact and are submitted to the jury.  That his subsistence ought not to be taken; that his hard-earned dollars should not be taken upon the whim of nine men.  As has been mentioned by the gentleman from Walker, it is rarely the case in an average county in Alabama that you have over two men out of twelve who are of such intelligence as they can weigh the evidence and apply the charge of the court to it.

Then if you put it in the power of nine men belonging to the average hoodlum element, if they know they are not bound to sit there and listen to the statements and arguments of a man on that jury who they recognize is superior in intelligence to themselves, that they have not got to be governed by or listen to him at all, they will stand there bull-headed and bring in a verdict regardless of law, justice and right.  Then, I submit that if three-quarters is a good rule, if we are going to depart from ancient landmarks and leave out a unanimity verdict, if they believe in majority rule, let us have majority rule.  Let us have it in criminal cases, too. I submit no man would think of that for a moment.  It is entirely too revolutionary, and I submit to the gentlemen of the Convention this is the most revolutionary subject yet introduced in this Convention.  It is fraught with more danger and will stir up more opposition to the ratification of this Constitution than anything yet, unless, perhaps, it was the talk taken on the subject of sheriffs. This certainly equals that, and , as has been said, no man ever discussed this on the stump, except to promise that the jury system should not be interfered with.  Gentlemen of the Convention, remember that two years ago in the manifesto issued as one of the causes assigned why the act calling a Constitutional Convention should be repealed, it was said that there was no pledge then given that the jury system should not be interfered with. Then if it was not discussed, and there is no claim that anybody asked for it except as has already been said by gentlemen interested in holding up corporations for big verdicts, why should it be adopted.  I will make the admission that I have never tried a case for a corporation submitted to a jury.  I have never tried a


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case before a jury in which I represented a corporation. I am not interested in the matter in any sense.

MR. BOONE ‑ Would you say that I and Governor Oates and Mr. Murphree and Governor Jones of Montgomery are engaged in holding ‑ up corporations?

MR. THOMPSON ‑ I do not mean that every man of the 43 who voted for this proposition is engaged in such a business. I do not individualize.

I submit, Mr. President, we ought not to depart from a system that has been a part of our law so long, a part of our American system that has existed for so long ought not be broken down except for good reasons, and if we are going to break it down in one instance, break it down in all.

MR. MARTIN ‑ I can not get my consent to vote in favor of this amendment that proposes to alter a rule of law of such long standing in this country.  Why it has been so long that the memory of man runneth not to the contrary.  It has been endorsed by the learned jurists and the most experienced and capable practitioners; and, above all, it has been sustained and upheld and endorsed by the people of the country.  Constitutional Conventions in this State have assembled for the purpose of amending the Constitution. They have assembled for the purpose of revising the Constitution. They have assembled for the purpose of making Constitutions; yet this grand and this true law has remained unshaken and unmolested.  Now, gentlemen, why is it that this law has remained for so many hundred years? Why is it that it has been endorsed by this wisdom of men all along the line? Why is it that there has been no demand among the rank and file of the people for its alteration or its change? Other things have changed. Other laws have been departed from; but this one has been held up so long that the memory of man runneth not to the contrary, at least in this country. There is but one way to answer it; and that is, that it has been found useful.  It has been found efficient. It has been found serviceable to the people in the administration of justice.  Gentlemen of the Convention, I am opposed to cutting loose from these ancient moorings and departing from the land-marks of our fathers without a good and cogent and an overshadowing reason can be given for it.  You may alter it, you may tear down the ancient landmark, but at once you will place upon yourself in the necessity of giving your reasons for it, and , take my word for it, you will find more men differing with you than men on your side.

Now it has been said upon this floor that these gentlemen are standing by these ancient laws and these ancient practices simply because they were indulged in by our fathers. In many cases that is true. But, gentlemen, I contend here today that it


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would be better for the people of this country, and it would be better for the State of Alabama, if many cases, if we would walk in the foot ‑ prints of our fathers. God speed the day, and I think I catch the first days of its dawning, when the people of Alabama can return to the ancient practices and customs of these good men who have gone before us, at least in some respects.

Now, what is it you propose to do? You propose to allow nine men, instead of twelve, to render a verdict. Will this encourage litigation? Will it stimulate litigation? Gentlemen, I insist that it will stimulate litigation. I insist that its tendency will not be to quiet litigation. Why?  Here is a man has a case in court. Twelve men render a verdict against him. There is not a man, woman or child in all this land who knows anything about courts, but what knows that it requires the concurrence of twelve minds to render a verdict in a civil or criminal case. I say, when a man has a case in court and twelve men render a verdict against him, he begins to think, and he says, "There are twelve men– twelve intelligent citizens, and they say there is no merit in my cause ‑ there is no strength in my position; and, therefore. I must be mistaken in my contention." But let that man believe that there are three intelligent men standing up to him, three men who saw the facts as he saw them, and just nine men against him, he will say, There were three men for me, and I will renew my fight and I will strengthen up my line and I will present the case, and these three perhaps will be multiplied.

MR. BOONE ‑ Can he do that without reversing the case?

THE  PRESIDENT ‑ The gentleman will please address the chair when he desire. to interrupt a speaker.

MR. BOONE ‑ Very well, sir, I will do so.

MR. MARTIN ‑ I say it will simply be when twelve men rise up and say there is no virtue in your case, will put a quietus upon it; but when only nine men rise up and say there is no virtue in your case because three men stand up and contend for it, it is not calculated to quiet litigation. Ah, but they say you can bribe one juror. Probably one juror may be bribed and it is possible to bribe three jurors and it is possible, perhaps, to bribe the Judge. All these things may occur; but I say that is no reason for altering this rule of long standing, which is well founded in the jury system of this country.

I would say to the gentlemen of this Convention, in the language of some eloquent man upon this floor, we had better pursue the course of our fathers and travel and use the oar with which they steered.

MR. WHITE ‑ It seems to me that on a matter which should be decided from the standpoint of reason, the motives of


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men on the other side should not be assailed; but it has been said here that it is being urged by men who want to “hold up” corporations. Forty-three of them voted here who, I am as sure were as patriotic as the gentlemen who voted on the other side. I might just as well and with just as much force say, if I were inclined to do it, though I am not, that the only opposition comes from the corporations, who are afraid of the jury.  I say it would be as equally fair for me to say that as for the gentlemen to say what they have said. Now remember this is not an extreme thing. Nine men out of twelve must concur in a verdict.  Surely threequarters of any body united upon one thing carries with it conservatism.  It can not be said that is extreme when three-fourths of a body agree to it and must agree to it before a result can be reached; but they tell us it is ancient.  I admit that it has around its neck and over its form a cob-webb of centuries.  It had its birth in the land of our fathers at a time when true men and fair women were carried to the stake and burned for witchcraft. It it just as old as that.  Yes, it is ancient.  It dates back to a time when tender women and light-bearded men were carried to the scaffold and died because they imagined the death of the king. Imagined the death of the king.  Yes, it is ancient.  It dates back to a time when men and women were burned at the stake because they would not admit and confess that the bread and wine was the body and blood of the Savior.  Yes, it has all of that; but does that make it right?  It dates back to that time when it was declared that the King could not do any wrong, yet, our ancestors more than 100 years ago said that kings could do wrong; and could do such grave wrongs that it justified a colony in rebellion. Now they say it is ancient.  I concede it; but these other things I have mentioned are ancient along with it.  Is that your argument? Do you meet the proposition on nothing but that? My friend says it has not been considered by the people. Neither was the proposition which you adopted on Friday and defused to reconsider this morning ever discussed before the people, i.e., that a Judge could discharge a jury, or a legislature could authorize him to do it, upon whatever cause the legislature might say they founded it.  We have there broken down a provision that stands in every Constitution almost in the American Union and has stood in every Constitution Alabama has ever had.  My friends suggests why it took so long after the decision in the Dartmouth College case to reach the proposition that the legislature had the right to amend or repeal a private charter. All these things are hedged about with these ancient things.  But I want to put the question to you upon its merits: Why have twelve men all the virtue and it don’t abide in one?  If there is virtue in the twelve, it must be conceded in the greatest number of things that there is eleven times as much virtue in the eleven as there is in one.  Then what right has one man possessed with no more intelligence and with no more knowledge and no better information, what right has he


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to stand up and thwart the will of the eleven. Now we are advancing. W e are in the noon ‑ day of the Twentieth Century. As civilization and light falls upon the earth, men advance. So we only know it is a thing of the past simply because it had its origin in the dark ages. We know, those of us who have practiced law, we know that in many cases one man defeats the will of the eleven, either because he is corrupt, or because he sometimes has been prejudiced by some tale of woe poured into his ear. It is easier to reach one man than three or four. It purifies the channel of justice and the stream that flows from that channel. It makes it practically impossible for a man with money or prejudice to tamper with the jury. He can't tamper with four men. He takes too many chances. Do you think it is as wild a theory as some of our friends would make you believe, when such men as Justice Brewer of the Supreme Court of the United States declared in its favor, and when one of your Supreme Court Justices says it is right? Now let us look at it as thoughtful, reasonable and dispassionate men, without regard to who advocates it or who does not. If it is right, let us keep it there. If it is wrong let us take it away.

The President called the attention of the gentleman speaking, Mr. White, that his time had expired. On motion, by unanimous consent his time was extended.

MR. WHITE ‑ I am very much obliged to my friend (Mr. Cunningham) but I have about concluded my remarks.

MR. WEATHERLY ‑ In the short time allotted by the Convention, I will do something that I do not often do, request the members not to interrupt me, I mean by asking questions:

Mr. President, when it was charged by the ex ‑ Governor of the State, then the Governor, and I use the word distinguished in good faith and mean what I say, that there was danger of the Constitutional Convention tampering with the Bill of Rights and disturbing the right of trial by jury, as an argument against the calling of a Constitutional Convention, I treated the suggestion with ridicule. But here we are deliberating soberly upon a question of whether or not the right of trial by jury shall be so impaired that one of its most essential constituents shall be taken away. I have a great deal more regard for the judgment and foresight of the distinguished Governor now than I had then.

MR. WHITE ‑ May I interrupt the gentleman?

MR. WEATHERLY ‑ I decline to be interrupted.

The argument for a change in this right of trial by jury is utterly fallacious. The minority ask, 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 propo‑


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sition in the organic law or rejects it:" I deny it. It may put it tentatively in this Constitution, but it must go to the people to be affirmed or rejected. “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.” I deny it. It must be passed on by the other house and passed on again by the Chief Executive of the State. “A majority of the Senate of the United States ratifies or refuses to consent to a treaty with a foreign power.” In one sense that is true. But how do they act upon it?  They act upon it as a check upon what has been done by the Executive; and it takes. two ‑ thirds, as has been suggested. “A majority of a single vote in a half million in a pivotal State, may elect a President of the United States, change the policy of the Government and bring prosperity or ruin to seventy millions of people.”  On its face that looks like it is true, but it is not.  Under our peculiar form of elections whereby elections are had by States, a minority of the people of the United States may elect a President, and have done it.  The system was devised for the express purpose of putting a check upon majorities, and , Mr. President, there is not a single institution in our republican government that is so constructed that it is left without a check, without some other power to check its operation. Our system of checks and balance in the operation of our Republican form of government is one of the chief sources of the admiration which other nations accord to us.

"So in the Supreme Court of the United States, five of the Justices against four held the income tax unconstitutional.” They held it upon an appeal from another court.  And I am not sure but what the very gentleman who raised this question will agree that it is always safe to leave the decision of those questions to a bare majority, even of the Supreme Court.  I have heard more dissent and dissatisfaction expressed on the score of those decisions. Besides there is a natural check to the action of the court. It is composed of trained lawyers who have months in which to deliberate upon a question, but in the case of jury trials, they are required to be speedy and all the facts are taken before the jury. They act on the spur of the moment. They act sometimes under excitement. They act under the stress of popular prejudice; and to authorize them to bring in a verdict by a bare majority, is to give speed to hasty and ill-considered verdicts in disposition to truth, and right, and justice.  What are the real reasons on the other hand for requiring a unanimous verdict? I quote from Proffatt on jury trials, using it in preference to any language of my own devising:

"Each member of the jury is sworn to declare the truth according to his conscience. A single member, if conscientiously impressed with a view of a statement of facts, different from the


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others, is as much entitled to have that view considered as the view of the majority; that when unanimity is required, the facts in the case are more thoroughly and fully investigated, with the view of bringing this unanimity about ‑ for if a mere majority are agreed at the first consultation there would be no necessity to deliberate and reason together with the view of making a unanimous verdict is required, each member, however insignificant, has a right to explain his views and to compel the majority to listen to him; for it has been well said, truth is established by investigation and delay, but falsehood prospers by precipitancy. That the verdict of twelve men if rationally obtained, is more likely to be correct than that of nine out of twelve. It is calculated on the doctrine of probabilities that the probability of error in a verdict where a majority of nine out of twelve is sufficient for a decision. is about one to twenty ‑ two, while unanimity is exacted it is one to eight thousand, and that a decision of twelve men, when unanimous, will command more respect and weight than nine out of twelve, or than the decision of a mere majority."

The time of the gentleman here expired, and on motion of Mr. Samford, was extended ten minutes.

Now, in addition to that, I want to present this fact to this view of this Convention. My own idea about the real essential value of a jury trial which requires unanimity is this, it protects those who are unpopular in the community and who would otherwise ,be oppressed under the laws of God ; but there is always one man at least can be found who will stand up for the right, though the heavens fall. Talk about corporations. Yes, of course, corporations are weak in public opinion and it is a protection to them ; but there are others for the Convention to consider. Any man of wealth in the community may be unpopular, not so much on account of his wealth, but the way he got it. That is no reason why he should not have a fair jury trial. Corporations have the right to exercise the right of eminent domain. They can come to the gentleman of Washington or they can come to vote and take your land from you but they would have to pay you for it: but maybe you don't want to give up your land. You go to a jury to try that question ; and under this ancient law, which is being ridiculed here today, your rights are protected, because it takes twelve men to say whether or not you shall give it up and how much shall be paid for it. Whereas, under the amendment here proposed, this corporation could go in there and submit its case and on the first constitution  nine men out of the 12 would be against you ; and they would not reason and they would not deliberate but they want the railroad to come in or the rolling mill to be established or the cotton mill in their midst, they want the public improvement and the whole town is against you and your only protection is the one or two men on that jury.


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The time has. been, Mr. President and gentlemen of this Convention, when the minority representation on the jury in the Federal Court was worth its weight in gold ‑ in gems of the most priceless value, in the South. Recall the days of reconstruction and you can recall them. When you were before the Federal courts the only barrier that stood between you and utter humiliation was the minority on the jury. If there is anything in the world that inspires ‑ I was almost about to say disgust, but I won't say that; but it inspires indignation for men to come here and attempt to overthrow an ancient institution having elements in it which were put in it for the express purpose of protecting the weak against the strong. What can we foretell as  to what conditions will confront us in this country, especially if we undertake the suffrage law or even if we do not? How can any man predict the conditions that will arise which will require the protection of this jury institution, as we have it now?

MR. BURNS ‑ Will the gentleman permit an interruption?

MR. WEATHERLY ‑ I must decline to be interrupted. Mr. President. Now they ridicule it because it is ancient. The gentleman has said that it was contemporaneous with the doctrine that the King could do not wrong, yet the English people cut off Charles First's head and destroyed that doctrine and left the jury system intact. Why the English people and the system, gentlemen, are ten centuries old. Think of it, one thousand years old: and the English people have progressed and lived upon it. The highest social body in the world today. the English people, and they have gone through their court procedures and reformed them root and branch. The English system of law is nothing today like it was one hundred years ago. They  have changed and reformed it entirely, but no Englishman has dared to lay his hand on this great institution.

You might as well say a jury should be reduced to eight. Why have twelve instead of eight. That would require less deliberation. They would do it quicker but the reason is it was put there for a purpose, it is a goodly number of men and it adds deliberation in the formation of a verdict.

MR. BROOKS ‑ The proposition that two ‑ thirds of a jury may render a verdict is, as has been well stated lay the gentleman who has taken his seat, a radical departure from our system of trials; but it is not a new proposition by any means. It has been discussed for many years, and has received the favorable consideration of some of the strongest men in this country. It is an innovation and it is true that innovations are not always improvements, but a blind adherence to a system consecrated by time merely will make it impossible ever to have innovations that are improvements.


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Now, the gentlemen who oppose this proposition talk about its overturning the theory and policy of centuries, that it is a removal of the ancient landmarks. But, sir, well settled principles as well settled precedents and customs must sometimes be modified by changed conditions and they must yield to the demand of an enlightened public sentiment. The conversation to reject merely because they overturn precedent and custom handicaps progress, and if we will apply to well settled precedents and customs and test existing conditions we may promote development and we may as individuals and as a people, if we profit by experience, make stepping stones of our dead selves to better things. When this matter was up for discussion, I listened in vain for argument from those who are opposed to it, and not one word was said in debate. This distinguished convention, which has always been so generous in its views in respect to any matter before it, so far as the opposition to this proposition is concerned, was as dumb as an oyster.

MR. LOMAX ‑ Will the gentleman permit a question?

MR. BROOKS ‑ Yes, sir.

MR. LOMAX ‑ Is it not a fact that after the gentleman from Macon and the gentleman from Washington and the gentleman from Jefferson had each spoken in favor of the minority report that the motion was made to lay on the table so that all the debate from the majority was cut off?

MR. BROOKS ‑ Yes, and the motion was made by the gentleman himself, the chairman of the committee.

MR. LOMAX ‑ No, sir. I think it was made by Mr. Barefield of Monroe.

MR. BROOKS ‑ The chairman of the committee first made the motion to table and then withdrew it, but up to the time the chairman had made that motion no argument from that side had been made.

MR. LOMAX ‑ I stated on Saturday and I desire to state again, that I sat in my seat for half a minute waiting for some gentleman from the minority of the Committee to make some motion, or to discuss the question, and they failing to do it, I made the motion to table and as soon as they indicated a purpose or a desire to discuss the matter, I withdrew the motion to table and it was then renewed before the majority of the committee had an opportunity to discuss the proposition.

MR. BROOKS ‑ I think the chairman of the committee understands the point I make. There is no inconsistency between what he says and what I say. My contention is that up to the time the motion was made to table this resolution, no gentleman


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on behalf of the committee had opposed this minority report by any argument to the Convention, and the stenographic report will bear me out in that statement. Now I state as a fact and I am glad at this late moment after we have only had an expression from the opponents of the measure by 43 votes recorded Saturday, that they have at last come forward and put up some champions to defend the cause.

Now, Mr. President, my own reflections lead me to believe that this language embodying the principle of unanimity of the jury in civil cases ought to be modified not only in the interest of the parties litigant but of the counties, cities and generally for the public interest. I do not propose to go into any elaborate argument why this change should be made because much has been said pro and con, but I do say there are several reasons which it seems to me ought to address themselves to the general good sense of the people of this State in behalf of the change proposed by the minority.

It has been said that one trouble is that a single juror may be fixed, and the result is a mistrial. If that is true, it is no worse for corporations than it is for individuals. If it is true, the honest litigant is at the mercy of the dishonest litigant, the poor but honest suitor is at a disadvantage with a well ‑ to ‑ do opponent who is unscrupulous enough to use his means unworthily.

But leaving out the question of corporations, there are other reasons. There is scarcely a jury in the land upon which there is not one or two or perhaps more men who are governed by their prejudices, and who are incompetent, for that reason, to brink in any just and proper verdict. Those men are generally governed by their admiration for one of the counsel in the case, and they will vote for a verdict, or against it, just as desired by the counsel for whom they have that admiration so deeply imbedded in them.

I remember on one occasion ex ‑ Senator Pugh told an anecdote about an old gentleman of Alabama during the reconstruction days. He was so strong in his prejudices that he refused to be reconstructed ever so little and his friends argued with him and they said to him "You ought to lay aside your prejudices." but said the old gentleman, "my prejudices are my principles." So it is with many men on the jury. Their prejudices are their principles.

MR. JACKSON ‑ If it is wrong to allow three ‑ quarters of the jury to deprive a man of his liberty, why is it not likewise wrong to allow three ‑ quarters to deprive him of his property?

MR. BROOKS ‑ That is a very pertinent question at the right time and occasion, but we are not discussing that now.

THE PRESIDENT ‑ The gentleman's time has expired.


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MR. WHITE ‑ I move that the time of the gentleman be extended.

MR. BROOK S ‑ I and very much obliged to the gentleman and to the Convention but I prefer to abide the rule.

MR. CUNNINGHAM ‑ Mr. President, I believe with the exception of Mr. Brooks, nearly all the delegates on this floor who have discussed this question are lawyers. I though it was about time that you heard from the people, and with the indulgence of this Convention I will make a few remarks. I want to say, Mr. President, I myself believe that the world do move; and I am free to confess that ancient customs and traditions should not exercise an absolute and uncontrollable influence upon enlightened parliamentary bodies at the beginning of the 20th century.  We should look upon this question very largely in my judgment in the light of the present day, and the first question or proposition to which I desire to call your attention is the disposition to impugn, to suspect or to criticise the motives, not only of attorneys anti delegates who may appear in a parliamentary body, but also of witnesses who appear upon the stand.

Now I believe that a change of this jury system from a verdict that is unanimous to one that is three ‑ fourths, will not be to the best interests of the people of the State of Alabama. I believe primarily it will work hardship upon the corporations of the State of Alabama. I have not a doubt of that proposition. Rightfully or wrongfully there is a bias and a prejudice against property invested in corporations in the State of Alabama. I do not believe that anybody will question that proposition. And if that be true, it therefore follows that in the selection of a jury to try cases in which corporations appear as defendants in damage suits. the plaintiff has primarily the advantage. If fifty per cent. are more or less biased and prejudiced in advance, it therefore follows that this bias or prejudice, though it may be unconscious, will have a tendency to make up a verdict prior to the hearing of testiniony, and the hearing of argument. Not only is this true in my judgment, but those here who have had the misfortune to testify upon the witness stand as experts and as to matter of fact, are familiar with the fact that if your testimony is to the benefit and interest of the plaintiff, the lawyer for the plaintiff is very easy in the cross examination. If it appears to be in the interest of the defendant then the lawyer with the defendant is very easy, but if your testimony is against one side or the other then the purpose is to degrade the character of that witness, though he may stand in every relation in life, socially, in business and politically, and in every way unchallenged for honesty and integrity, yet they will undertake to besmirch his honor and character by asking questions which to my mind are clearly out of order.


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Mr. President, sympathy has no place in a court in my judgment, and yet it plays an important part. Now, I undertake to say that if this amendment is adopted ‑ I am not afraid to say itit will redound to the interest of plaintiffs in damage suits in Jefferson county. I say it boldly, but I do not want here to interpret the motives of the gentlemen who usually appear for plaintiffs in these cases as having that as a primary motive. I am opposed to that proposition, but I undertake to say it will add thousands and hundreds of thousands of dollars to those who bring suits for damages and imaginary damages, and of that fifty or twenty ‑ five per cent. will find lodgment and properly, no doubt, in the pockets of those who appear for them in courts of justice. Now who bears the burden? Is it the corporations? Does not the corporation take into consideration the amount of money they have to pay the insurance companies when they are considering these questions with the committees that appear for labor. Don’t they take into consideration the amount of money they will  probably have to pay, considering the doctrine of chances in adjusting the wages with their labor. Why, Mr. President, about that there cannot be a question, and while it will apparently cost the corporations of Jefferson County thousands of dollars, in reality it comes out of the pocket of the man that earns the money. It comes out of the labor because it will be a charge and a charge that is properly made against the cost of operating these great industries. Now, Mr. President, I believe on the floor of this Convention gentlemen should be permitted to say what they have to say, and exercise the privilege of voting without questioning their motives. I do not believe it is the proper place, and, therefore. I do not approve of all that has been said on the question I am advocating. I am opposed to this three ‑ fourths proposition, and I sincerely hope, in the interest of justice, and fair play, right and propriety, that we do not disturb this great independent and fundamental question of the right of trial by jury.

MR. COLEMAN (Greene) ‑ Mr. President and delegates of the Convention, I have listened to the argument Saturday and today, pro and con, with a great deal of interest, and at the risk of being considered as consuming too much of your time by appearing too much on this floor, I conceive it to be a duty to make some suggestions to you as have occurred to me in regard to the question now under consideration. It cannot be denied that there has been great merit and force in the argument of the gentlemen who contend for the unanimous verdict, nor can it be denied that there has been much merit in the contention of those advocating verdicts by three ‑ quarters of the jury. If, therefore, there is a plan of solution which will facilitate trials as insisted upon by those who favor the minority report, and at the same time protect those who, chiefly, the argument has contended, would be injured by the adoption of the three ‑ quarter verdict, it does seem to me it


1717

CONSTITUTIONAL CONVENTION, 1901

would be wise for this Convention to consider that question. No man who has appeared in the courts of this country but knows full well that in every trial by an individual against a corporation, whether city, county or railroad corporation, or express company, or any character of corporation, however honest and sincere the juies may be in their desire to do justice, their sympathies are with the plaintiff, the one single suitor against the corporation. But because that exists, does not appear to me any sufficient reason why three ‑ fourths should not be sufficient in cases purely ex contractu. If there is a case between an individual and an individual, or an individual and a corporation, founded upon contract purely, juries will be just between those parties and it seems to me from the argument we have had, that the sole trouble grows out of cases sounding in tort in which cases the attorney having the closing argument can, by a skillful speech, secure the sympathies of the jury to such all extent that no court can overcome it. Any man who has watched trials in the courts in this country knows that it is true. Having had this matter under consideration, and having considered the matter since Saturday afternoon, it has occurred to me wise and proper to offer the amendment which I now send up and ask the clerk to read.

The amendment is to read as follows : Amend the minority report of the committee by striking out said minority report, and adding to the section as reported by the committee the following: “Provided, that the General Assembly may authorize the returning of verdicts upon the agreement of three ‑ fourths of the jury in all civil cases, not including actions in tort."

MR. COLEMAN ‑ I use the phrase "in tort" because it has a comprehensive legal definition. All courts and lawyers know their meaning. This has been suggested by those who are in opposition to the minority report, and the amendment of itself will facilitate trials in all actions founded upon contract, express or implied, and this Convention by that amendment does not take upon itself to decide arbitrarily that a verdict may be returned by three ‑ quarters. The matter is left to the General Assembly. As it is said this matter was not discussed when we were elected to these positions, but it can be discussed, and the members to the General Assembly will be in a position to know the desires of the people upon the subject.

MR. WEATHERLY ‑ Is it not a fact that the only difference between the amendment offered by you and the report of the committee is that the whole matter is relegated to the Legislature?

MR. COLEMAN ‑ There is one other difference. The matter is not left to the Legislature so far as actions in tort are concerned. They remain exactly as reported by the committee. I will say to the delegate to the Convention that upon reading this report it met with my approval, but after hearing argument pro


1718

OFFICIAL PROCEEDINGS

and con, and seeing where hardship would result, and where protection could be afforded, I came to the deliberate conclusion that there should be protection given to those parties against whom we know from experience, however just and honest juries may be, their sympathies are altogether upon one side and not upon the other. I do not believe, as has been suggested, that corporations stalk abroad in the State and the jury trials and the body politic are festering sores from beginning to end. There are exceptional cases which should give rise to severe criticism, but upon the whole, I maintain the rights of property are as well preserved in this State as in any other State, and I believe a provision such as embraced in the amendment I have offered will quiet these people who are apprehensive of injustice being done to them, and you will raise up no opposition to the ratification of the Constitution because they are protected in the only particular where injury can be done to them. Upon contracts they are willing to go before the juries of the country because there the law determines the measure of damages that ought to be recovered, but in trials in tort cases there is a great latitude left to the jury, and there is no way to correct an abuse.

MR. SAMFORD ‑ It seems to me that this discussion has been protracted long enough for every delegate upon this floor to come to a satisfactory conclusion. I, therefore, move the previous question upon the section and both amendments.

MR. WHITE ‑ Will the gentleman allow me to discuss the amendment to the amendment?

MR. SAMFORD ‑ No sir, I decline to withdraw the motion for the previous question.

A vote being taken, on a division the previous question was carried by a vote of 57 to 46.

MR. LOMAX ‑ I do not care to unnecessarily consume the time of this Convention in the discussion of this proposition.

MR. ROGERS (Sumter) ‑ I rise to a point of order. The question is on the adoption of the amendment offered by the delegate from Greene and is not on the original proposition. I think the gentleman will have his time to close the debate when the question is on the original proposition.

THE PRESIDENT PRO TEM (Mr. Graham) TalladegaIn response to the point of order, the Chair will state that the main question is ordered on the proposition and all amendments. The question is in order.

MR. LOMAX ‑ Mr. President, I do not believe any question has yet come before this Convention which more involves the essential liberties of the people of Alabama than the question now


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CONSTITUTIONAL CONVENTION, 1901

before you, and, therefore, it has not seemed to me that an attempt ought to ire made to cut off a full and a fair discussion of it, but I believe now every view of this question has been presented and I believe this Convention is ready to say what shall be done with the original proposition and both amendments. Hence, I shall not detain you long in the discussion of the question.

The very fact that the amendment offered by the minority and the amendment offered by the gentleman from Greene are in such direct antagonism, is to my mind evidence that these amendmerits ought not to be adopted and that the section should stand as reported by the Committee.

The complaint made on Saturday was that by reason of the fact that bribery stalks at noon time and sitteth in the court house in the evening hour, we should make a verdict of nine men control a jury, because the men who are injured by these great corporations could not get at them as long as they had the power to bribe one man on a jury. I do not believe with all due deference to my friends that the people of Alabama are as corrupt and venal as they are painted in that declaration. I do not believe that bribery runs rampant over the hills and valleys of Alabama. I believe that in the matter of morals, in the matter of honesty and in the matter of integrity, the people of Alabama today compare with its people in any period of its history and will compare with the people of any time in the future. If it be true that in some portions of Alabama there is bribery of jurors, gentlemen who represent that portion ought to go home and punish the bribe ‑ givers and takers, and not seek to strike down the monuments of liberty of all the rest of the State to accomplish it.

Now, I have no sympathy with the idea that one side or the other of this proposition is interested because of peculiar interests they happen to represent in court. But I want to call the attention of the Convention to one particular proposition in connection with that idea about the verdict of juries being controlled by corporations by securing one man. Most of the actions for damages which are brought in this State for personal injury are brought against railroad corporations. Every single large railroad corporation in Alabama is chartered under the laws of a foreign State. Pass this amendment, provide for a jury of nine men, bring your suits in the State court against the corporations, and all these corporations would have to do is to move to transfer that case to the Federal Court and entrench themselves forever behind a verdict of twelve men and the result will be‑

MR. BOONE ‑ Is it not the law that on the law side of the Federal Court, under express statute, the proceedings conform to the proceedings of the State court?


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OFFICIAL PROCEEDINGS

MR. LOMAX ‑ Yes; but that does not affect the guaranty of the Federal Constitution of a jury of twelve, and the result will be, if you adopt this provision, you will drive the corporations into the impregnable fortress of the Federal Court and make this rule only to affect the common people of Alabama. Are you prepared to do it?

MR. BLACKWELL ‑ Does the gentleman tell the Convention that when the amount involved is less than $2,000 that you can transfer that case?

MR. LOMAX ‑ Certainly not; but who ever heard of a damage suit for less than $2,000 where there was an injury as much as the loss of a finger. I would like to be pointed to one on the records of the courts of Alabama.

So I say by the adoption of this proposed amendment vote absolutely entrench these corporations in the Federal Court and you don't accomplish the purpose you desire.

Now, they say this provision has cobwebs on it. I have heard that the best wine has cobwebs on its bottles.

It is said that this provision had its origin in the days when the doctrine prevailed that kings held by divine right. It did and upon the field of Runnymede from the throat of a king who claimed by divine right the people of England wrung this concession and it stands to this day untouched in English law. It was not only in Magna Charta but it was in the declaration of rights at the restitution of Charles II. It was put in the act of settlement when William and Mary came to the throne. It was imbedded in the American Constitution and there it ought to stand until time shall be no more.

But we are told that some of the great States have adopted this reform. What States do they cite us to?  The States of Colorado, Florida, Idaho, Iowa, Louisiana, Missouri, Michigan, Montana, Nebraska, New Jersey, North Dakota, Washington and Wyoming.

MR. WEATHERLY ‑ Will the gentleman allow me to ask if North Dakota is the State where you can get a divorce in twentyfour hours?

MR. LOMAX ‑ Yes, and Wyoming is a woman suffrage State and Colorado is another and all of the States, with the exception of three, have not got the swadding clothes of statehood off yet.

MR. WHITE ‑ How about California and Connecticut and Texas?

MR. LOMAX ‑ I am reading from the States cited in the argument of my learned friend, Mr. Blackwell. If there are others,


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CONSTITUTIONAL CONVENTION, 1901

I don't know it. I suppose he cited them all. But when you refer us to the great reform in the jurisprudence and judicial system of a State why don't you refer us to some of the great States that have been the leaders in public thought for a century?  Why don't you refer us to New York which, only a few years ago had a Constitutional Convention?   Why don't you carry us to Massachusetts. where the law has always been executed in all the perfection of detail for one hundred years.  Why refer us to these little children that have grown up here like mushrooms in the last twenty years?

Now my learned friend from Jefferson read on yesterday from an elaborate report that was made by a Committee.  I believe it was said of seventy to the English Parliament, in which they advocated the reform of the jury system.  This very reform that is proposed here now, the reduction of the number of the jury to make a verdict to make nine men.

I tell you gentlemen of the Convention, I do not believe that even in these United States is the doctrine of constitutional liberty more deeply engrafted than it is upon the soil of England, and yet, notwithstanding that report of the Committee in favor of this reform, England stands today upon a verdict of twelve men and in it she is followed by the most progressive, the most populous, the most prosperous, and the most enlightened States of the American Union, and the American Government itself. Ah, Mr. President, but these gentlemen that talk about reform, my friends, the reformers, have not got the true metal of reform about them; it does not ring like the toosin calling the people to awake. If it be true that this is a reform which is demanded, if it be true that it ought to be done, because in the Congress of the United States, in the Legislature of Alabama, in a great national election, a majority of one decides all questions, and I believe in looking over the list of citations which they have made, they cite but one single instance where a majority of more than one is required, and that is in the United States Senate, on the question of your ratification of a treaty between the United States and a foreign power, where it requires two-thirds– but if the majority rule is so good, if, by it, we can decide the question of who shall be the President of the commonwealth and of our country, if by it we can decide what shall be the rule of our Supreme Courts, why don’t they come up to the full measure of their duty; why have you not the courage of your convictions, and come out and say that a majority of one on a jury shall decide the rights of property in Alabama?  That does not sound like reform. If it is good to have nine to decide the case, it is better to have seven.  We know it because these gentlemen have said it, and we knew before they said it that in these other matters, a majority of one decided ques-


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OFFICIAL PROCEEDINGS

tions, even to the election of a president of the United States. If it be such a great reform, why, gentlemen, do you not apply it to criminal cases? Why do not you say that the jury shall have a right by a majority of one to determine that a man's life or his liberty shall be taken? Oh, they reply, that it is a different thing. Is it different? Do you know a man, gentlemen of the Convention, that will not defend his property with his life, and it the man himself is so careless of his life, that he will defend his property with it, why should you be so careful of it as to take his property away, by less than twelve, and yet retain the twelve to keep him out of the penitentiary or away from the gallows?

I submit to you, gentlemen of the Convention, if you adopt this proposition another thing will happen. You absolutely destroy the chances for deliberation, in a jury box. If a jury goes in the box, and they are divided in opinion, and they must be unanimous, those men will sit down and reason together, they will discuss the evidence, talk about the law as the Court gave it to them, and in a majority of cases, in the large majority of cases, they will find where the truth is, and declare it in their verdict : but once say that nine men shall decide a case and they walk into a jury room, and the first thing is "let us take a vote and see who has got a majority," and nine of the jurors say the plaintiff or the defendant should have the verdict, deliberation is gone, and you have what you seem to be hunting for, quick and speedy justice, without sale, denial or delay, but you have not got it as the result of the deliberate conviction of the jury, as you ought to have it, if our laws are to be properly executed in this country.

Now, gentlemen, the proposition of my learned friend from Greene is based upon another hypothesis. He says, and his view of it is that if a man brings an action of damages against a corporation, the sympathy of the jury goes out to the plaintiff, and it is so strong that it will overcome, (I don't mean that is his argument), but I take it it would be so strong that it would overcome the bribe ‑ bought juror, my friend, the gentleman from Jefferson (Mr. Beddow) talks about, and so the gentleman from Greene puts it that in cases of tort, a majority verdict of nine shall not prevail.

I tell you, Mr. President, and gentlemen of the Convention, if you go amongst the people of Alabama, (and I tell you you have got to have a fight to get this Constitution adopted, you all know it and realize it), and let some man get up before them, that has the power of speech on the stump, and let him tell the people of this State that this Convention has passed a statute which absolutely guarantees to the corporations a verdict of twelve men, but if a man sues you, for your little forty acres of land here, nine men can take it away from you ‑ You cannot defend it on the stump, and you put your Constitution in peril.


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CONSTITUTIONAL CONVENTION, 1901

And if, on the other hand, you leave out this proposition and adopt the proposition contained in the minority report of the Committee, the same power lies in the hands of designing and unscrupulous men to go to the men who own their little farms all over Alabama, and say to them, this Constitution has done what it was predicted it would do, it has tampered with the jury system of Alabama. It has put it in the hands of this fellow that has got a mortgage on your property, to get it from you by a verdict of nine men, when the Constitution since the dawn of time has said twelve men, and that proposition would give you trouble world without end in securing the adoption of the Constitution.

I appeal to this Convention not to tamper with the bill of rights. I do not care if it is old. If the proposition I submit to you does not appeal to you by reason of its virtue and its merit, God knows I do not ask you to vote for it by reason of its age, but it is part and parcel of the rights reserved to the people, and I appeal to this Convention not to touch them, but to let them stand as they have stood since the dawn of Alabama's history, the bulwark of the people against oppression of all sorts.

THE PRESIDENT PRO TEM ‑ The previous question has been ordered upon the amendments and the main proposition. The question now is upon the amendment ordered by the gentleman from Greene.

MR. WHITE ‑ I call for the ayes and noes.

THE PRESIDENT PRO TEM ‑ The ayes and noes are demanded ; shall the call be sustained?

The requisite number of delegates rising, the call was sustained.

THE PRESIDENT PRO TEM ‑ The question is upon the amendment offered by the gentleman from Greene. As many of you as favor this amendment will make it known by saying aye as your names are called, and those opposed will make it known by saying no as your names are called.

Mr. Banks asked for a reading of the amendment and it was again read.

MR. JONES (Montgomery) ‑ On this question I am paired with the delegate from Mobile (Mr. Smith)

I do not know how he would vote on this proposition. If I were free to vote, I would vote no, because I want the minority report or nothing.

MR. HEFLIN (Chambers) ‑ It is my understanding that a delegate cannot pair with another delegate unless he knows how


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OFFICIAL PROCEEDINGS

that delegate would vote, and there is an understanding that one will vote in the affirmative and the other in the negative–

THE PRESIDENT PRO TEM ‑ To what purpose does the gentleman rise? To require that the gentleman from Montgomery should vote?

MR. HEFLIN ‑ I rise to a point of order that the gentleman is not paired, and he should vote.

MR. JONES (Montgomery) ‑ A delegate cannot vote after he pairs on a proposition, and I would like to say that I consider the point of order as entirely frivolous.

THE PRESIDENT PRO TEM ‑ The Chair so holds, under the statement made. The roll call will proceed.

MR. OATES ‑ I am paired with the delegate from Monroe (Mr. Morrisette), but I do not know how he would vote on the question; therefore I vote aye.

MR. PALMER ‑ I am paired with Mr. Locklin. If he were here I reckon he would vote aye and I would vote no.

And upon the call of the old roll the vote resulted.

AYES

Ashcraft,

Dent,

Rogers (Lowndes),

Banks,

Macdonald,

Rogers (Sumter),

Brooks,

Oates,

Wilson (Washington).

Coleman, of Greene,

Reynolds (Henry),

 TOTAL ‑ 11 NOES

Messrs. President,

Cunningham,

Haley,

Almon,

Davis, of DeKalb,

Harrison,

Barefield,

Davis, of Etowah,

Heflin, of Chambers,

Bartlett,

Duke,

Heflin, of Randolph,

Beavers,

Eley,

Henderson,

Beddow,

Eyster,

Hodges,

Bethune,

Ferguson,

Hood,

Blackwell,

Fitts,

Howell,

Boone,

Fletcher,

Howze,

Bulger,

Foshee,

Jackson,

Burnett,

Foster,

Jenkins,

Burns,

Freeman,

Jones, of Bibb,

Byars,

Gilmore,

Jones, of Hale,

Carmichael, of Colbert,

Glover,

Jones, of Wilcox,

Carnathon,

Graham, of Montgomery,

Kirk.

Chapman,

Graham, of Talladega,

Kirkland,

Cobb,

Grant,

Knight,

Craig,

Greer, of Calhoun,

Kyle,


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CONSTITUTIONAL CONVENTION, 1901

Ledbetter,

Parker (Elmore),

Smith, Morgan M.,

Leigh,

Pearce,

Sorrell,

Lomax,

Pettus,

Spears,

Long ( Butler),

Phillips,

Spragins,

Long (Walker),

Pillans,

Thompson,

Lowe (Lawrence),

Pitts,

Vaughan,

McMillan (Wilcox),

Porter,

Walker,

Martin,

Reese,

Watts,

Maxwell,

Reynolds (Chilton),

Weatherly,

Merrill,

Samford,

White,

Miller (Wilcox),

Sanders,

Whiteside,

Murphree,

Sanford,

Willet,

NeSmith,

Searcy,

Williams (Barbour),

Norman,

Selheimer,

Williams (Marengo),

Norwood,

Sentell,

Wilson (Clarke),

O’Neal (Lauderdale)

Sloan,

Parker (Cullman),

Smith, Mac. A.,

TOTAL ‑ 103

ABSENT OR NOT VOTING

Altman,

Inge,

Palmer,

Browne,

Jones, of Montgomery,

Proctor,

Cardon,

King,

Renfro,

Carmichael, of Coffee,

Locklin,

Robinson,

Case,

Lowe (Jefferson),

Smith (Mobile),

Cofer,

McMillan (Baldwin),

Sollie,

Coleman, of Walker,

Malone,

Stewart,

Cornwall,

Miller (Marengo),

Studdard,

deGraffenreid,

Moody,

Tayloe,

Espy,

Morrisette,

Waddell,

Grayson,

Mulkey,

Weakley,

Greer, of Perry,

O'Neill (Jefferson),

Williams (Elmore),

Handley,

Opp,

Winn,

Hinson,

O'Rear,

So the amendment was lost.

THE  PRESIDENT PRO TEM ‑ The question recurs upon the minority report.

MR. BLACKWELL ‑ And on that I call for the ayes and noes.

THE PRESIDENT ‑ The ayes and noes are demanded; shall the call be sustained?

The requisite number rising, the call was sustained.

During the call of the roll:

MR. BURNS ‑ I desire to state that on Saturday I made a pair conditionally with Mr. Carmichael of Coffee. I have just


1726

OFFICIAL PROCEEDINGS

heard his name called and he is not present to vote, and consequently the pair ought to stand, and I would vote no and he would vote aye.

MR. JONES (Montgomery) ‑ I am paired with the delegate from Mobile (Mr. Smith.) If he were here he would vote no and I would vote aye.

MR. JONES (Wilcox) ‑ I am paired with Mr. Cofer of Cullman; if he were present he would vote aye and I would vote no.

MR. MCMILLAN (Wilcox) ‑ I am paired with Mr. Moody. If he were present he would vote aye and I would vote no.

MR. PALMER ‑ I am paired with Mr. Locklin. If he were present he would vote no and I would vote aye.

Upon the call of the roll the vote resulted as follows:

AYES

Ashcraft,

Dent,

Reese,

Banks,

Fletcher,

Reynolds (Henry),

Bartlett,

Foshee,

Rogers, of Lowndes,

Beddow,

Freeman,

Sanford,

Blackwell,

MacDonald,

Selheimer,

Boone,

Murphree,

Smith, Mac A.,

Brooks,

Norwood,

Spears,

Byars,

Oates,

White,

Cobb,

Pettus,

Wilson, of Washington,

Craig,

Pitts,

 TOTAL ‑ 29 NOES

Messrs. President,

Ferguson,

Hood,

Almon,

Fitts,

Howell,

Barefield,

Foster,

Howze,

Beavers,

Gilmore,

Jackson,

Bethune,

Glover,

Jenkins,

Bulger,

Graham, of Montgomery

Jones, of Hale,

Burnett,

Graham, of Talladega,

Jones, of Bibb,

Carmichael, of Colbert,

Grant,

Kirk,

Carnathon,

Greer, of Calhoun,

Kirkland,

Chapman,

Haley,

Knight,

Coleman, of Greene,

Greer, of Calhoun,

Kyle,

Cunningham,

Haley,

Ledbetter,

Davis, of DeKalb,

Harrison,

Leigh,

Davis, of Etowah,

Heflin, of Chambers,

Lomax,

Duke,

Heflin, of Randolph,

Long, of Walker,

Eley,

Henderson,

Long, of Butler,

Eyster,

Hodges,

Lowe, of Lawrence,


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CONSTITUTIONAL CONVENTION, 1901

Martin,

Pillans,

Thompson,

Maxwell,

Porter,

Vaughan,

Merrill,

Reynolds, of Chilton,

Walker,

Miller, of Wilcox,

Rogers, of Sumter,

Watts,

NeSmith,

Samford,

Weatherly,

Norman,

Sanders,

Whiteside,

O'Neal, of Lauderdale,

Searcy,

Willet,

Parker, of Cullman,

Sentell,

Williams, of Barbour,

Parker, of Elmore,

Sloan,

Williams, of Marengo,

Pearce,

Sorrell,

Wilson, of Clark,

Phillips,

Spragins.

 TOTAL ‑ 81

ABSENT OR NOT VOTING

Altman,

Jones, of Montgomery,

Proctor,

Browne,

Jones, of Wilcox,

Renfro,

Burns,

King,

Robinson

Cardon,

Locklin,

Smith, of Mobile,

Carmichael, of Coffee,

Lowe, of Jefferson,

Smith, Morgan M.,

Case,

McMillan (Baldwin),

Sollie,

Cofer,

McMillan, of Wilcox,

Stewart,

Coleman, of Walker,

Malone,

Studdard,

Cornwall,

Miller, of Marengo,

Tayloe,

deGraffenreid,

Moody,

Waddell,

Espy,

Morrisette,

Weakley,

Grayson,

Mulkey,

Williams, of Elmore.

Greer, of Perry,

O'Neill (Jefferson),

Winn,

Handley,

Opp,

Hinson,

O'Rear,

Inge,

Palmer,

And by a vote of 81 noes to 29 ayes the minority report was lost.

THE PRESIDENT PRO TEM ‑ The question recurs upon the adoption of the original Section as reported by the Committee.

MR. BOONE (Mobile) ‑ I offer an amendment.

THE PRESIDENT PRO TEM ‑ It is too late, the previous question has been ordered.

And upon a vote being taken the Section as reported by the Committee was adopted.

The hour of 1 o'clock having arrived, the Convention stood adjourned until 3:30 p. m.

__________

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being eighty ‑ seven delegates present upon the call of the roll.


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OFFICIAL PROCEEDINGS

MR. HEFLIN (Chambers) ‑ I rise to a question of personal privilege.

THE PRESIDENT ‑ The gentleman will state the question of privilege.

MR. HEFLIN (Chambers) ‑ On this morning, during roll call, upon the last roll call before adjournment, when the gentleman's name from Montgomery was reached, he stated to the Chair that he was paired with the gentleman from Mobile, and that he did not know how that gentleman would vote and proceeded to explain his vote, saying that he would vote for the minority  report, as he wanted that or nothing. I rose to the point of order that the gentleman could not state a pair unless the other gentleman would vote in the opposite from himself. Then the President pro tem asked me for what purposes I rose, and I said to have the gentleman from Montgomery to cast his vote  without reference to a pair. The Chair ruled. when the distinguished gentleman from Montgomery said that it occurred to him that the point of order was frivolous, and the Chair said that the Chair ruled, that my point of order was frivolous. I want to set myself right before this Convention, Mr. President, by reading rule 38 of this Convention: "Every delegate may be required to vote on any question before the Convention." Further, rule 40: "After a vote has been ordered upon any question no delegate shall be permitted to explain his vote, without the unainmous consent of the Convention."

The gentleman from Montgomery stated something with reference to a pair, without stating a pair with the gentleman from Mobile upon the pending question, and without obtaining the consent of the Convention he stated that he would vote against the amendment, because he wanted the minority report or nothing, thereby explaining his vote to this Convention, by permission of the chair, but without the consent of the Convention. I rose to the point of order, and I think the President of the Convention will sustain me, for all parliamentary law does, that a gentleman cannot pair with another gentleman, unless the other gentleman would vote directly opposite from the way the gentleman himself would vote. I merely want to suggest, Mr. President, under the ruling of the President pro tem, the Convention was not very wise in passing these two rules. I just wanted to call attention to the matter.

MR. JONES (Montgomery) ‑ I rise to a question of personal privilege. The point made by the gentleman from Chambers arose in this way: I stated that I was paired with the gentleman from Mobile, upon this question, and that I did not know how he would vote, and if he was present I would vote so and so. My friend from Chambers misapprehended the phase of the case in which the matter came up. When the amendment offered by the gentleman


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from Greene came up, I then stated to the Chair that I did not know how the gentleman from Mobile would vote on that, but that I was paired with him on the general question, but if he was present I thought he would vote so and so, and I would vote so and so. That is not an explanation of a vote.

MR. HEFLIN (Chambers) ‑ I will ask the gentleman a question before he sits down. Did you not state while you were on your feet, that you would vote against the amendment, because you favored the minority report or nothing?

MR. JONES (Montgomery) – Which amendment do you speak of?

MR. HEFLIN (Chambers) ‑ The amendment of the gentleman from Greene.

MR. JONES (Montgomery) ‑ I think I did.

MR. HEFLIN (Chambers) ‑ Was not that explaining your position without leave from the House?

MR. JONES (Montgomery)  ‑ I don't think it was.

MR. HEFLIN (Montgomery) ‑ I think it was.

THE  PRESIDENT ‑ It seems to the Chair there is nothing for the Chair to rule upon.

MR. GRAHAM (Talladega) ‑ Just one word, not to prolong the matter.

THE PRESIDENT ‑ Does the gentleman rise to a question of personal privilege?

MR. GRAHAM (Talladega) ‑ I do.

THE PRESIDENT ‑ The gentleman will state the question of personal privilege‑

MR. GRAHAM (Talladega) ‑ I wanted to correct the statement of the gentleman from Chambers in one particular. The President pro tem did not hold that this point of order was frivolous, but the Chair mentioned in the announcement that it was not well taken.

MR. HEFLIN (Chambers) ‑ I dislike very much to call the distinguished gentleman's attention to the fact that the gentleman from Montgomery said that it seemed to him to be frivolous and the gentleman from Talladega said, "and the Chair so rules."

THE PRESIDENT ‑ The special order will be the consideration of the report of the Committee on Preamble and Declaration of Rights. The Secretary will read the next section of the report.

Section 13 was read as follows


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Thirteenth– That in all prosecutions for libel for or the publication of papers investigating the official conduct of officers, of men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court.

MR. LOMAX – There is a verbal error in the printed copy which might mislead some gentlemen.  In the first line, after the word “for” is placed before “or;” it ought to be “or for the publication of papers.”

The only change in this Section, Mr. President, is that the words “for libel” are inserted before the words “for the publication of papers investigating the official conduct of public officers,” and it permits the truth of the charge to be given in evidence in prosecution for libel. I move the adoption of the Section.

MR. CUNNINGHAM – But before taking that vote, I desire to ask the Chairman of the Committee if it is the rule of practice in most civil suits or suits for damages, slander, etc., that the jury has to determine the law or does that apply to this special character of suits?

MR. LOMAX – That has been in every bill of rights in reference to libel, that I know anything about.  In reality it is a legal fiction , but it has been there so long, nobody ever disturbs it.  The jury in reality, in a libel case, decides just like they do in any other case.

THE PRESIDENT – The question is on the motion to adopt the Section.

Upon a vote being taken the Section was adopted.

Section 14 was read as follows:

Fourteenth– That all courts shall be open; and that every person for an injury done him, in his lands, goods, person or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or delay.

MR. LOMAX – There is no change in that Section and I move the adoption of the Section.

Upon a vote being taken the Section was adopted.

Section 15 was read as follows:

Fifteenth – That the State of Alabama shall never be made a defendant in any court of law or equity.

MR. LOMAX – The same proposition applies to that Section, and I move the adoption of the Section.


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Upon a vote being taken the Section was adopted.

Section 16 was read as follows:

Sixteenth ‑ That excessive fines shall not be imposed, nor cruel nor unusual punishments inflicted.

MR. LOMAX ‑ There is no change made in that Section.

MR. PILLANS ‑ I offer an amendment.

The amendment was read as follows:

Amend Section 16 of the Declaration of Rights, Article I. of the Constitution, by adding thereto the words following, to wit: And that it shall not be lawful to use the lash upon or whip or flog any person held to labor under conviction for crime or misdemeanor in this State.

THE PRESIDENT ‑ The question is on the adoption of the amendment proposed by the gentleman from Mobile.

MR. PILLANS ‑ It is with great reluctance that I offer an amendment to an old Section of the Bill of Rights, and did I not take it that there was a serious need for protection to be afforded by this Constitution to an unfortunate and unhappy class of our fellow beings in this State, I would not have offered it. But I think that the history of the present administration of the convict camps in this State justifies the amendment. It is a fact, known to all observant men, that not only are those who are convicted of felonies, either grave felonies or the lesser felonies, hired out as slaves, treated as slaves, whipped sometimes like dogs, but that this is done with those who are guilty of the most ordinary misdemeanor. It seems to me that it would appeal to any man of good feeling and humanity to do something to prevent this evil from continuing in this State. Now, Mr. President, I will say, and I say it without the fear of successful contradiction—

MR. COLEMAN (Greene) ‑ Let me ask you a question. Does not Section 16 apply to punishments inflicted after sentence upon conviction, and none other?

MR. PILLANS ‑ I think it does.

MR. COLEMAN (Greene) ‑ Don't you propose to reach assaults and batteries committed in the punishment inflicted by parties in control?

MR. PILLANS ‑ That is precisely what I propose to reach and I am not particular about where it comes in.

MR. COLEMAN (Greene) ‑ One more question. Are not these parties in control as much guilty of assault and battery under


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the law now as if your provision were incorporated in the bill of rights?

MR. PILLANS – I am very much obliged to my distinguished friend for asking the question.  I was of the opinion as a lawyer that they were guilty, up to the time that the legislature of Alabama was seduced into passing an act that validated it.  Up to the time that the legislature of Alabama passed an act for the protection of these unfortunates and provided for this whipping to be done only under the supervision of inspectors, it was without doubt an assault and battery, punishable by civil damages and criminal prosecution, and I am surprised that the able bar of Birmingham, and of Jefferson County, had not found it worth their while to bring damage suits for these slaves for the flogging which took place in their mines and works such a number of times.  But they did not do it. It became a common practice in those mines and in those establishments, as far as I can learn.  It became the common habit for those who were handling these gally slaves to inflict this punishment and the legislature of Alabama deeming it necessary to protect these people, passed laws, which, while intended for their protection, really only gave validity, I fear, to this evil, which ought never to have been done.

Now, not getting away from the line I was arguing, I will come back to it.  The putting of this clause at the end of Section 16 as an amendment may be criticised by some of my friends. When it was first offered by me, I offered it as an independent ordinance.  Members of the Committee were of opinion that if it came in at all, that it should come in as a part of this section. If it is not made a part of this section it may well come in as an independent section, but there is no impropriety in adding it to Section 16 as it is for the protection of the citizens of the State, which is really the object of the section.

I am aware from personal observation of how a white man has been crushed to earth and made a mere animal of, by being flogged, flogged like a dog, and there is  not one man of you here who would have endured the agony of having one who was kind to you, or connected with you, flogged in such a manner who was guilty of nothing but a common misdemeanor. A man convicted of the crime of selling a lottery ticket. We all object to lottery, but the selling of lottery tickets is not a crime in itself. It is a crime because it is made so by law. That man was a man of excellent family. A man of excellent rearing, but a man of no force and he was put in a convict camp and flogged and that man ceased to    be a man except in semblance.

Now it is that sort of thing which seems to be a charity to prevent, and which I seek to have prevented by this section of the Constitution. You may say it is very well to flog negroes if you


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choose, but does it do gentlemen to flog white men.  Apply it to yourself, and take it to yourself, and is there one of you who would do anything but take the life of the man that put the lash upon him, if such a misfortune should ever fall to your lot.  I ask you to protect these people, as you would protect yourself, or your son or brother, and that is all.  I do not care to make any lengthy speech upon this subject and I will submit the matter to this Constitution and its conscience.

MR. CUNNINGHAM – I yield to no man in his desire to be both philanthropic and humane, and upon the question that is under discussion, I think my public record shows that I am in the line of humanity.  If the gentleman from Mobile had introduced an amendment prohibiting any person convicted of a criminal offense in this State, from being leased or hired to any contractor I would have cheerfully voted for it and perhaps, would have asked for additional time over and above the ten minutes to present the argument as to why it should be done.  The matter under discussion, however, is a mere question of discipline.  I speak not from theory, from newspaper hearsay or from any abstract principles of philosophy or science, but as an observer of the matter of discipline in the management of convicts in the State of Alabama, and I want to say, and I say it deliberately, that the lash is the most humane, and at the same time the least degrading method of maintaining discipline that the present authorities can possibly devise or allow.

MR. JONES (Montgomery) ‑ How about bread and water, I will inquire of the gentleman?

MR. CUNNINGHAM ‑ The gentleman offering the amendment offers no substitute for the lash and the gentleman from Montgomery asks how about bread and water.

MR. WHITE ‑ Will the gentleman from Jefferson allow a question ?

MR. CUNNINGHAM ‑ As soon as I answer the question of the gentleman from Montgomery.

THE PRESIDENT ‑ We have fallen into a rather informal way of carrying on the discussion. I believe the usual rule is when gentlemen desire to interrogate the speaker, that they address the chair. Does the gentleman consent to be interrupted ?

MR. CUNNINGHAM ‑ I will answer the gentleman in a moment, as soon as I answer the question of the gentleman from Montgomery.

According to my personal observation of the various methods that have been tried, bread and water, with or without a dark cell, and anyone at all familiar with the laws of physiology knows that


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the continued use of bread and water is not merely a punishment, but results in a change of the bodily conditions of the man in such a way as to invite disease. In the first place, if continued for a sufficient length of time it will produce scurvy, and even if stopped short of that time, it invites especially the invasion of contagious diseases, and more especially tuberculosis. Indeed, any condition that is thrown around the convict that takes away from him the very best nourishment and the very best possible hygenic surroundings, invites the invasion of that particular disease. Not only that, but the records of your penitentiary will show that notwithstanding the precaution taken in regard to these matters, that from forty to sixty per cent of the mortality of your convict population is due to tuberculosis. A few years ago the dark cell was adopted for the purpose of trying to control certain very unmanageable convicts. That was found to be unavailing and ineffectual. Carrying out the instructions of State officials, their arms were suspended in this position above their heads, and I deliberately, on my own authority, after a short time, had them removed, for the reason that it would undoubtedly have resulted in death. My experience has shown that particular order of punishment, the suspension of the hands above the head is not only ineffectual, but it is the reverse, and, in reality, it renders the convict still harder to manage, and, as a rule, more or less damages his physical condition.

Now, I agree with the gentleman from Mobile that to delegates upon this floor, without being convicted, a flogging would probably mean death, but they recognize the fact that convicts are there in obedience to the law, and that there are certain rules of discipline which they must observe. They recognize the fact that if this discipline is violated that there must be some method or some means of punishment. Now, I undertake to say from my observation that ninety ‑ nine out of a hundred would prefer the punishment now allowed by law, than to either the dark cell or to the bread and water treatment. It would not be out of place to say there has been a wonderful revelation upon this subject so far as my observation goes. The time was when an unlimited number of lashes could be placed upon the naked bodies of convicts. That was not only inhuman and brutal, but possibly in some instances it may have resulted in death. But that has all been changed. The law today is fifteen licks with a strap of a certain width and weight, applied over the clothes usually  worn, which, I will say, in the winter season embraces about two pairs of pants at any rate. A convict cannot be whipped upon his naked body except by order and in the presence of a State official. State officers are not always particular upon this question. Sometimes they get very humane and perhaps they have not correct ideas upon questions of discipline, and they become careless upon this question. The result of it is fighting among the convicts, and, to my


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personal observation, there are three or four convicts killed almost every year by fellow convicts, and it results because there is not a proper enforcement of discipline. Then, again, a State officer will come along and he will make up his mind to break up this condition to affairs, and he does it with his presence and by his order inflicting the punishment with the lash, and the infliction of this punishment by some properly constituted authority immediately results in a great reformation and stops the fighting among this class of men.

Now there is a question that appeals, I presume, to the business men upon this floor. Your convict system, Mr. President, is not what it ought to be, nor will it be what it ought to be so long as the lease system is continued, there is a practical business proposition is this: If you adopt a dark cell, or if you adopt bread and water, or some other form of punishment, humane in appearance, but actually inhumane in its application, who is going to pay for these men while they are undergoing this milk and cider punishment. There can be but one answer to that proposition. It must come out of the treasury of your State or out of the treasury of your county. I believe, Mr. President, that the amendment of the gentleman from Mobile ought not to be adopted. I believe it is an injury to the convicts themselves. I believe no effectual substitute can be offered that will take the place of an ordinary humane lashing. So far as its mental effect is concerned upon the delicate, refined, cultivated white man. I am willing to admit it might prove somewhat depressing and demoralizing, but it is very rare that we get a man of that character in the penitentiary, and when he goes there, Mr. President, his pride in observing discipline controls him, so that it is the exception when a man of that character has to be punished in any way. This is all that I have to say upon the amendment.

MR. WHITE ‑ I want to ask the gentleman a question.

MR. CUNNINGHAM ‑ I ask the gentleman's pardon. I had forgotten.

MR. WHITE ‑ I ask the gentleman from Jefferson if it is not a fact that these convicts are beaten because they do not comply with the tasks that have been allotted to them in the mines?

MR. CUNNINGHAM ‑ There are various things, Mr. President, for which whipping is done in the penitentiary. That is one, but statistics can be obtained upon this subject accurately, by referring to the Convict Department in this building. I can state from my personal observation that a majority of the whipping is done for the violation of discipline in regard to conduct, such as fighting, gambling, and things of that character.

MR. LOMAX ‑ This is a matter which, if one will observe the argument of the gentleman from Mobile, is purely one of Legis‑


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lative detail. It is a matter that can be corrected in the Legislature and I do hope the Convention will not burden this bill of rights with legislative enactments. I move to lay the amendment of the delegate from Mobile on the table.

MR. PILLANS ‑ Of course I can make no response. I trust it will not be laid upon the table–

MR. LOMAX ‑ Of course, if the gentleman desires to have an opportunity to reply, I do not want to cut off debate or move to table. In order to give the gentleman an opportunity to speak, I will move the previous question on the amendment.

THE PRESIDENT ‑ Does the gentleman withdraw the motion to table?

MR. LOMAX ‑ I will with the leave of the Convention. I do not care to cut off debate.

MR. BEDDOW ‑ Mr. President, again I heartily agree with this amendment offered by the gentleman from Mobile to amend the Bill of Rights, and again am glad to hear the gentleman from Jefferson say if an ordinance had been introduced before this Convention to prevent the hiring of convicts under the lease system that he would heartily favor such a proposition, and I say before this Convention adjourns, we will probably give him an opportunity to assist us along that line.

The gentleman from Jefferson says that the lash is the most humane manner by which discipline can be enforced in a convict camp. If it is the most humane, Mr. President, I know of nothing, that to my experience and to my observation can be worse. I say authoritatively that three ‑ fourths of the whipping that is done in convict camps in this State, is done by reason of the failure of the convict to come up to the high task that is put before him in the performance of his daily work. For 365 days in the year he is expected to work, Sundays, Christmas Day, and the Fourth of July excepted. He works in the mines, where free labor has the opportunity to take a little respite from its labor in case of sickness, where in case he is worked down, he can go home and stay with his family a day or two, but to these poor unfortunate individuals that are being sent to Jefferson County, and worked in its mines, 365 days in the year no such right or opportunity is given. They are sent there, they are hired out to a class of people whose profit comes from the hardships of the convict. The less they give him to eat, the more they make. The most days he works in the year, the more it is in their pocket book, and so it is that they are punished to the extent that I speak of for the failure to come up to their daily tasks. It may be said that these men cannot be whipped unless the inspectors are present. I know that that is not true, because the only time at which the inspector is required to be present when these men are punished, is when they are asking


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that they be punished by twenty ‑ one lashes upon the bare skin. There is not a night that passes in Jefferson County, but what from twenty ‑ five to 300 of these unfortunates are whipped without the presence of anyone except the officers of the company, whose money comes through the labor of those poor unfortunate creatures.

MR. CUNNINGHAM ‑ Will the gentleman permit a question?

MR. BEDDOW ‑ Yes.

MR. CUNNINGHAM ‑ How many did you say?

MR. BEDDOW ‑ I say all the way from twenty ‑ five to 300.

MR. CUNNINGHAM ‑ I want to emphatically contradict that as far as the Pratt Mines are concerned—

MR. BEDDOW ‑ But what do you say about the county?

MR. CUNNINGHAM ‑ I ‑ I have no personal knowledge outside of Pratt Mines.

MR. BEDDOW ‑ I would like for gentlemen who interrupt me to speak of matters within their personal knowledge.

MR. BAREFIELD ‑ I will ask you if the State don't appoint the man who does this whipping?

MR. BEDDOW ‑ I say to you that the State appoints them on the recommendation of the company  which pays him. That is the way it is done. The company selects the man that they want to inflict the punishment, and they recommend him and he is almost always appointed.

MR. SAMFORD ‑ If you do away with the punishment now permitted, will you suggest some punishment that will take the place of it ?

MR. BEDDOW ‑ If you had seen the poor unfortunate creatures that I have, with the blood whipped out of them, with their backs bruised and mangled, you would say to me that any other punishment would be preferable. If you had seen like I have seen, men sick going to the company's physician pleading his illness and telling him he was sick and unable to do his work, and then to be scourged into a mine where he had to crawl on his hands and knees to get to his work, and then be brought out dead, then you would agree with me.

MR. SAMFORD ‑ Will the gentleman permit an interruption?

MR. BEDDOW ‑ I will.

MR. SAMFORD ‑ If you had been so humane then as you are now, why did not you prosecute that official before the grand jury of your county.


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MR. BEDDOW ‑ It was not my business to prosecute people before grand juries of the county, and I will say that all of those who were present were not State officials or other persons, but were employes of the company, and in the pay of the company, and they were not hunting prosecutions of that kind.

Now, Mr. President and gentlemen of the Convention, these men are often sent up on short sentences, and it is not an unusual thing for a man having a short sentence of thirty days to go to the mines for some petty offense, and when he gets there a chunk of slate may fall on him and crush his leg.  A man may suffer death for a petty offense, and I say the best way to meet this condition is according to the suggestion of my friend from Jefferson.  Let us inaugurate a system here that will not only prevent inhuman punishment to these unfortunate individuals, but let us, while we are assembled, pass an ordinance that will require the State of Alabama within the next three or four years to take every convict out of the mines and not allow them to be hired to people whose monetary considerations control their treatment of these unfortunate convicts. I heartily concur in the amendment proposed by my friend from Mobile and hope this Convention will adopt it.

MR. ROGERS (Sumter) ‑ I think perhaps the gentlemen who are picturing the evils of the convict system are overdrawing it to some extent. The man I left at hone in charge of my negroes, is a negro himself, and an ex ‑ convict, and I have talked with him some times upon this question, and asked him about this whipping. He says, "Yes, boss, they do whip them up there and they ought to be whipped." He says they whim them because they will not work, and because they fight and because they steal and gamble, but he says if a man goes there and tries to do his duty he is treated just like he is everywhere else. They expect him to do his work and no more. Now everybody knows that the great bulk of convicts in this State are negroes.  Everybody who knows anything about the character of a negro, knows that there is no punishment in the world that can take the place of the lash with him. He must be controlled that way. He inherited that peculiarity from his ancestors when he came from the shores of Africa, where they provide that kind of punishment, and if we take away the lash from this convict system, we will destroy the efficiency of the system. I do not know what these humane gentlemen want to do with the convicts, in case we cannot control them. There is certainly nobody who is going to take them that cannot control them, and this bread and water business, and dark cell puts me in mind of a system of something of that kind down in Mexico.  A friend of mine who goes there frequently, says that there is no punishment on earth that is so awful as the kind of punishment they have in Mexico. There they put the convicts in a hole, where the sun can shine on him, instead of whipping him. The law in


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Mexico does not allow the convict to be whipped, but they take these people and dig a hole out where the sun can shine on them, and they let them stay there until they are conquered. I think it is infinitely better to whip these negroes or white men than to have such punishment as that. And gentlemen, let me tell you, this maudlin sentiment about a man that gets into the penitentiary is all foolishness. That is all there is to it. A man that goes to the penitentiary ought to be punished if he deserves it, and he won't get the punishment unless he does deserve it.

MR. PILLANS ‑ Suppose he plays cards in what is denominated a public place. which may be a very private place under the decisions of our court, and he cannot be fined but must go to the penitentiary.

MR. ROGERS (Sumter) ‑ Yes, a man that violates the law ought to go to the penitentiary. I play cards myself and may be convicted for it some time and have to go to the penitentiary, but I will never get up and grunt about it  when I am violating the law. You respect the laws of this country and you stay out of the convict camp; you break the laws, and you go there and receive the punishment that you would expect to have inflicted upon you.

MR. WILLIAMS ‑ I now move the previous question but will give way to the gentleman from Mobile if he will agree to withdraw it.

MR. HOWELL ‑ Before that is done. I want to ask the gentleman from Jefferson (Mr. Beddow) if I understood him to say they worked 365 days in the year?

MR. BEDDOW ‑ I excepted Sundays, Fourth of July and Thanksgiving.

Mr. Pillans here arose.

The Chair will call the attention of the gentleman from Mobile to the rule.

MR. PILLANS ‑ Only speak one time on a subject?

THE PRESIDENT ‑ Yes, sir.

Mr. O'Neal asked unanimous consent for the gentleman from Mobile to submit a few remarks and the consent was given.

MR. PILLANS ‑ I thank the Convention and the gentleman for the opportunity. I have never been a convict nor has any kinsman of mine ever been a convict. Certainly I have never known a white man of my blood to be whipped. If I had instead of being a member of this Constitutional Convention I should be confined in the penitentiary as a murdered. For with the blood in my veins and with the spirit that actuates me, I would have had the irresistible desire to spill the blood of any man who would visit


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such a disgrace upon any of my blood. It is so with all of us. We are all Southerners. And if the poor negro can stand the flogging better than we can it does not make us any the less restive under it. Is it possible that we who have gone beyond the Russian knout and the Delaware whipping post, who are unwilling to use the lash as part of our methods of criminal punishment, I was about to say to the introduction of a system of gally slaves, but I will say to continue such a system. And I have been amazed to see men of as much refinement as myself from Ensley stand up and tell you that men like to be flogged.

MR. CUNNINGHAM ‑ I certainly did not state such a thing and I cannot conceive how the gentleman should interpret my remarks in that way. I said as compared with other forms of punishment which, under my personal observation, had been prac ticed, it was better.

MR. PILLANS ‑ Did the gentleman say better or that they liked it better?

MR. CUNNINGHAM ‑ Better.

MR. PILLANS ‑ This matter of flogging has come before the American people, and has been abolished in our State codes. It has been abolished in the American navy, mercantile and martial. It has been abolished by all of the great States of the Union except a few of us who are occupying a backward position and have stood on a mere matter of dollars and cents. For that is what it amounts to. The knout is a well known method of punishing and correcting persons in this age. Did any of you read the article by Kellond, printed in Harper, I think, describing the punishment by the knout in Russia? And did you ever read an article which described the Alabama system more perfectly? Did you not feel indignant that such things could be tolerated in this age. Why, only a few weeks ago a Governor of this State sent an inspector. I think it was Dr. Bragg, to look into an affair called a convict camp in Monroe County. His report was printed in the newspapers and doubtless every gentleman of you read it. He stated that there were some sixty odd men in a single pen and a house with four walls and no openings for ventilation except a door which had to be locked at night. Think of human beings being confined in such a place. Without the ordinary conveniences which are necessary where men are gathered. They lay along the two sides of the house without air in the midst of the foulest and most unmentionable things. That is the result of the conditions in Alabama. I remember one instance which I can cite to you as to the effect of this system. There was a man to whom I was talking once, and he was the first one to call my attention to the flogging of white men ‑ in a conversation with him I asked him why he flogged the convicts. I knew it was unlawful and I said why do you flog these negroes, and he said. "Oh, we flog them, and white men too."


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That man afterwards stood his trial in Arkansas for murdering a prisoner. Graduated from Alabama schools, he went to Arkansas and finally reached the penitentiary for manslaughter. He escaped from the penitentiary and went on his career of taking care of people, I suppose. That man was a product of the Alabama system. I take it that nobody who knew that man would come to the conclusion that he was innately a bad man, that all that was the matter with him was the result of being afflicted with the power given to him by the unfortunate state of affairs that existed in Alabama.

We are asked  how we can punish them. It has been stated by the gentleman from Jefferson that all these cases of flogging are for failure to perform some task. The man I had in mind was a man unable to perform a task that the negro from Sumter County performs.

MR. ROGERS ‑ I thought these convicts were numbered as to their capacity and that certain classes were given certain tasks and certain others given others, I would not expect your friend to perform the task my negro performs.

MR. PILLANS ‑ He is not my friend.

MR. CUNNINGHAM ‑ Does the gentleman from Mobile understand that these convicts are classed and tasked by the State?

MR. PILLANS ‑ That was just stated by the gentleman from Sumter.

MR. CUNNINGHAM ‑ Does the gentleman also understand that notwithstanding the classification by the State that the records of Pratt City will show that from fifteen to thirty are monthly taken from the mines by the company's physician notwithstanding the State says they are able to work?

MR. PILLANS ‑ I know nothing of the details of that matter, but I am happy if the humanity of my friend has been penetrating enough to perform such noble work. I am not an encyclopedia of convict management. I have never burdened my mind and have never sought to learn how to manage convicts, but there can be no doubt that if other States manage convicts without the lash, we can do it, and it appears by the speech of one gentleman who is opposing the report that down in Mexico the peon is protected by law from the lash.

MR. LOMAX ‑ I move the amendment offered by the gentleman from Mobile be laid upon the table.

A call for the ayes and noes by Mr. White was not sustained, and a viva voce vote being taken, the amendment was laid on the table.


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Section 17 was read as follows:

17. That all persons shall before conviction be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.

MR. LOMAX ‑ That is the same as the old Constitution, and I move that it be adopted.

A vote being taken, the section was adopted.

Section 18 was read as follows:

18. That the privileges of the writ of habeas corpus shall not be suspended by the authorities of this State.

On motion, the section was adopted.

Section 19 was read as follows:

19. That the treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and that no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or his confession in open court.

MR. LOMAX ‑ The word "the" following the first word "that" is incorrectly inserted, and I ask that it be stricken out by consent. I also ask to insert the word "own" before the word "confession."

The consent was given, and both amendments made the section adopted.

Section 20 was read as follows:

20. That no person shall be attainted of treason by the General Assembly; and not no conviction shall work corruption of blood or forfeiture of estate.

On motion, the section was adopted.

21. That no person shall be imprisoned for debt.

MR. OATES ‑ I desire to offer an amendment.

The amendment was read as follows: Amend Section 21 by adding thereto "except for willful and flagrant fraud."

MR. OATES ‑ I have but a few words to offer in support of that amendment. I remember well when we used to have a law which imprisoned a man for debt, and I remember very well when it was abolished, and I have observed how it has worked since, and, as a general proposition, I am decidedly in favor of it. But there are cases of the most flagrant fraud in which parties have


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no remedy against the perpetrators, and this provides that in cases of willful or flagrant fraud, there may be imprisonment for debt. Of course that leaves it to the Legislature. And they might provide proper penalties.

MR. CARMICHAEL ‑ I move to lay the amendment on the table.

A vote being taken, the motion was carried, and, on motion, the section was adopted.

Section 22 was then read as follows:

22. That no power of suspending laws shall be exercised by the General Assembly.

On motion, the section was adopted.

Section 23 was read as follows:

Twenty ‑ third ‑ That no ex post facto law, or any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the General Assembly; and every grant of a franchise, privilege or immunity, shall forever remain subject to revocation, alteration or amendment.

MR. LOMAX ‑ There are two changes made in that Section. One is by inserting the word "exclusive" after the word "irrevocable."   The other is by adding at the end of the Section that all franchises, privileges or immunities shall be subject to revocation, alteration or amendment. I move the adoption of the amendment.

MR. SAMFORD ‑ May I ask what was the object of that?

MR. LOMAX ‑ The object of the word "exclusive" was to prevent the Legislature from granting any exclusive or irrevocable franchises to any one. And the object of the other is to make more specific and definite the proposition that all franchises granted are revocable by the will of the General Assembly.

GENERAL HARRISON ‑ What was the reason of the Committee putting in that latter clause?

MR. LOMAX ‑ Simply to make more specific and definite the proposition that franchises are revocable at the pleasure of the power that grants them.

Upon a rote being taken the Section was adopted.

Section 24 was read as follows:

Twenty ‑ fourth ‑ That the exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the


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General Assembly from taking the property and franchises of incorporated companies and subjecting them to public use the same as individuals. But private property shall not be taken or applied for public use, unless just compensation be first made therefor; nor shall private property be taken for private use or for the use of corporations, other than municipal, without the consent of the owner; provided, however, that the General Assembly may by law secure the persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by person and corporation of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner, and, provided that the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporation, other than municipal or for the benefit of any individual or association.

MR. LOMAX ‑ There is no change in that section and I move that it be adopted.

Upon a vote being taken the section was adopted.

Section 25 was read as follows:

Sec. 25. That all navigable waters shall remain forever public highways, free to the citizens of the State, and of the United States, without tax, impost or toll, and that no tax, poll, impost or wharfage shall be demanded or received from the owner of any merchandise or commodity for the rise of the shores, or any wharf erected on the shores, or in or over the waters of any navigable stream, unless the same be expressly authorized by law.

MR. LOMAX ‑ There has been no change in that section and I move that it be adopted.

Upon a vote being taken the section was adopted.

Section 26 was read as follows:

Sec. 26. That the citizens have a right in a peaceable manner to assemble together for the common good, and to apply to those invested with the power of government for redress of grievances or other purposes, by petition. address or remonstrance.

MR. LOMAX ‑ There has been no change in that section and I move that it be adopted.

Section 27 was read as follows:

Sec. 27. That every citizen has a right to bear arms in defense of himself and the State; and it shall be the duty of the General Assembly to define, by law, small arms, and regulate the bearing of the same.


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MR. LOMAX ‑ The latter part of that section as added "and it shall be the duty of the General Assembly to define by law, small arms and regulate the bearing of same," was adopted at the suggestion of some gentleman who introduced an ordinance to that effect in the Convention with a view of calling the attention of the Legislature to the evil and practice of carrying concealed weapons and to adopt more stringent remedies than exist today.

MR. O’NEAL (Lauderdale) ‑ State whether they would have the right to prevent a man from carrying a pistol?

MR. LOMAX ‑ I am inclined to think they have. But it was the view of some of the members of the committee who introduced the ordinance, to put this in the Constitution with a view of attracting the attention of the Legislature more particularly to the practice of carrying small arms and perhaps of carrying small arms night to some degree check the practice of carrying concealed weapons, which makes it the duty of the Legislature to do it.

MR. SAMFORD ‑ I ask if the committee don't object that the last part of the section be stricken out.

MR. LOMAX ‑ The only difference is, while the Legislature has the power now, it makes it the duty of the Legislature to define small arms and regulate the bearing of the same, and the idea was that putting it in the Constitution and the Legislature having the power to define what a small arm is, it might in some way adopt some measures by which the evil of carrying concealed weapons would be remedied.

MR. PETTUS ‑ I can understand what the committee means to do by making it the duty of the General Assembly to regulate the bearing of small arms, but I cannot understand what it hopes to get at by making it the duty of the General Assembly to define small arms.

MR. LOMAX ‑ The idea was that the legislature might include some small arm that is now a dangerous weapon to carry about the country that is not in the statute against carrying concealed weapons.

MR. O'NEAL (Lauderdale) ‑ Under that provision could not the legislature have the right to define an air ‑ gun a concealed weapon?

MR. REESE ‑ I offer an amendment.

The amendment was read as follows: "Strike out all of the section after the word "State" in the first line:"

MR. REESE ‑ The purpose of that amendment is to leave this section where it was in the old Constitution of 1875.  Mr.


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President, it would be well to leave some of these provisions like they used to be. It would be well to send some of the sections back to the people so they can see an old friend with which they are acquainted. I fail to see where the explanation given by the Committee comes in. The legislatures have legislated along this line since I have been recollecting anything about it. Judges have charged grand juries, and the Circuit Court Judges of the State have charged the communities in which they held their courts about the evil practice of bearing small arms. I hardly conceive that the explanation that has been given explains. It looks to me like there is a nigger in the woodpile somewhere.

MR. PETTUS ‑ I would like to ask the gentleman a question.

THE PRESIDENT` ‑ Does the gentleman yield?

MR. REESE ‑ Yes, sir.

MR. PETTUS ‑ I would like to ask if this question is in relation to the "razoo" that the nigger in the woodpile has?

MR. REESE ‑ I expect it is, but the legislature can reach this question without this provision in the Constitution.

MR. O'NEAL (Lauderdale) ‑ Under this provision it shall be the duty of the General Assembly to define by law "small arms." Would not they have the power to define an air gun or small rifles as a small arm and prevent the carrying of the sane by the people of the State?

MR. REESE ‑ I expect they have the right to do that now under the law. Under this provision they may prescribe that when you carry a pistol you must carry it in your hand, or when you carry any other gun, they might prescribe which hand you would carry it in, and they might make you do all sorts of things. Mr. President, why not act honestly and squarely with the people. If this Convention desires to stop the people from carrying arms and desires to strike the clause out of the Constitution of Alabama, let us come up like men and say so, and I believe I would vote for it, but do not let us deceive them. Do not let us stick a thing in there which may be susceptible of different meanings, but let us say candidly what we mean. I for one, oppose this, because I do not know what it means. After all of the explanation that has been here, as it happened on this floor on one other occasion before, in the consideration of this report, we were requested to put in something that we did not know the meaning of and the distinguished and able lawyer who is the Chairman of the Committee did not know the meaning of it, and I object to putting this thing in because I do not know what the meaning of it is.


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MR. LOMAX— Under the present Constitution do you think you can levy a privilege license can the right to carry a pistol?

MR. REESE– I cannot say.

MR. JENKINS– Under this clause in the present Constitution, if the legislature was to levy a license of say $25 or $50 for carrying a pistol, do you believe that they could do it, under this provision saying that a man has a right to bear arms?

MR. REESE– I have not investigated that subject.  I assume that you could not levy a tax on it, because the last Legislature levied a tax on everything they could, and they did not levy a tax on the carrying of pistols.

MR. JENKINS – I will say to the gentleman from Dallas– I see he takes his seat– but I will say to him anyhow, that the only reason they didn’t put a tax upon carrying pistols was because the Constitution did not allow it, and I believe that if we ever can get a tax on pistols, in the shape of a privilege license, that you will abolish the carrying of concealed weapons, and not until you get that license will you ever do it.

MR. WHITE ‑ That would give a man with money the right to carry a pistol and a poor man could not carry it.

MR. REESE ‑ I am willing to abolish it.

MR. JENKINS– No man should be allowed to carry it without a license.

MR. GREER (Calhoun) ‑ I move to lay the amendment offered by the gentleman from Dallas on the table.

MR. REESE ‑ I will state to the gentleman that it is not my amendment. It is the amendment of the gentleman from Chambers who desires to speak on it, and I will ask him to withdraw the motion.

MR. GREER (Calhoun) ‑ If I withdraw the motion, will the        gentleman from Chambers renew it?

MR. HEFLIN (Chambers) ‑ I hate to renew a motion to lay my own amendment on the table, but I will do it.

MR. GREER (Calhoun) ‑ I withdraw it if you will renew it.

MR. HEFLIN (Chambers) ‑ I thought that the section as reported by the committee ought to be amended. I thought it should be left as it is in the old Constitution. I thought, and think now, that the reasons given by the committee for the amendment were not good. I see no reason why the section in the old Constitution should be changed. It reads after this manner: Sec‑


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tion 27, That every citizen has a right to bear arms in defense of himself and the State. We have had this section in the Constitution since 1875, and I have never seen any evil growing out of this right being lodged in the fundamental law of the State. I can see no good which is to come from the report of the committee changing this section. The section is short. As the gentleman from Dallas has said, let us go back to the people of the State with something that they may recognize as an old friend in the Constitution when we go before them and submit this Constitution for their ratification. I do not desire to speak further on the question. The gentleman from Calhoun has requested that I make a motion to kill my own amendment. I therefore do so, Mr. Chairman, and move to lay the amendment on the table.

Upon a vote being taken upon the motion to table the amendment of the gentleman from Chambers, a division was called for, and, by a vote of 47 ayes and 47 noes, was announced.

MR. HEFLIN (Chambers) ‑ I call for a verification of the vote.

THE PRESIDENT ‑ The chair has not voted, and has a right to vote. The chair will vote against the motion to table.

MR. REESE ‑ I move the previous question on the amendment.

MR. GREER (Calhoun) ‑ On that I call for the ayes and noes.

THE PRESIDENT ‑ The gentleman from Dallas moves the previous question, and the question is, shall the main question be now put?  

The main question was ordered.

THE PRESIDENT ‑ The question is on the adoption of the section as amended.

MR. REESE ‑ I move the adoption of the section as amended, and I move the previous question.

THE PRESIDENT ‑ Does the gentleman insist upon the previous question? The Convention seems ready to vote.

The call for the previous question not being insisted upon, a vote being taken, the section was adopted.

Section 28 was read as follows:

28. That no standing army shall be kept up without the consent of the General Assembly, and, in that case, no appropriation for its support shall be made for a longer term than one year; and the military shall in all cases and at all times, be in strict subordination to the civil ower.


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

Upon a vote being taken, the section was adopted.

Section 29 was read as follows:

29. That no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in  manner to be prescribed by law.

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

Upon a vote being taken, the section was adopted.

Section 30 was read as follows:

30. That no title of nobility or hereditary distinction, honor, privilege or emolument, shall ever be granted or conferred in this State : and that no office shall be created, the appointment to which shall be for a longer time than during good behavior.

Upon a vote being taken the section was adopted.

Section 31 was read as follows:

31. That immigration shall be encouraged, emigration shall not he prohibited, and that no citizen shall be exiled.

MR. JONES (Montgomery) ‑ I have an amendment.

The amendment was read as follows: Amendment to Section 31 of the report of the Committee on Declaration of Rights. Aniend Section 31 by adding at the end thereof, the following words: "No well person shall be compelled to exile himself from the State to secure refuge from disease, when the health authorities of any County are willing to allow him refuge in its borders.

MR. JONES ‑ Before making any remarks on the amendment, I would like to inquire of the Chairman of the Committee whether the Committee is opposed to its adoption. If they are not, I do not wish to speak. If they oppose it, I do.

MR. LOMAX ‑ The Committee is opposed to the amendment. At least as Chairman of the Committee I am opposed to it. Of course I have not the authority to speak for the balance.

THE  PRESIDENT ‑ The question is on the amendment of the gentleman from Montgomery to the section as reported by the Committee.

MR. JONES (Montgomery) ‑ I cannot conceive of any plausible objection to the amendment, unless it falls under this head in the preliminary report under which it says "Some of the ordinances rejected by the Committee failed of adoption because it was evident that the object sought to be obtained could be se


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cured by legislative action, and hence they were not proper matters for Constitutional enactment."

That is true of nearly every declaration in the Bill of Rights. A prudent legislature could and would always secure these rights there announced by legislative enactment. There are some matters which the people always wish to withdraw from legislative control. There are matters paramount and fundamental in their nature, which it is always deemed proper to give a permanent place in the Constitution of a State. This, and not whether legislation could effect the object determines whether the Declaration of Rights is the proper place for them.

Now, why do men love their government? Is it altogether because of the soil or its fertility, the mountains and the valleys, its rivers, the beauty of its scenery, or the climate?  Is it altogether for its history? Is it altogether for its people? These and each of them add much to love of country, but at last the paramount consideration in every man's heart when he loves his government is, the measure of protection it affords to life and liberty.

We have had in recent years a flagrant example of the need for some such provision in the fundamental law. I will not say who was the author of the principle I condemn because I am not sure ‑ it is of doubtful paternity. Here in Alabama, ever since the seashore was settled, when God in his providence allowed epidemics to come among the people the people of stricken cities have been allowed to go among their friends and neighbors for refuge, wherever it would not imperil the public health. There never was a day or an hour in Alabama before 1897 when a citizen of Alabama before 1897 lawed by the State of Alabama and turned over to the charity of strangers in other States when he sought refuge from a city in which there was an epidemic or contagious disease. Kindred and friends in localities where his presence would not harm had always been allowed to succor him in times of distress. We had yellow fever in Montgomery time and time again, and in Mobile, and there never was a day before 1897 when the State of Alabama declared all avenues of refuge in Alabama are closed to you. Every spot in Alabama is liable to infection. It matters not what the experience of communities may have been, and it matters not that they may know by, actual experience that no danger could come to the public health or to its people by aiding you. I put the strong arm of Alabama upon you, and tell you if you are poor you may die where you are with the pestilence. If you are rich I will carry you through the State, and leave you a dependent upon the good will or the charity of strangers in neighboring States. Now, I ask if there is any wisdom in that? Is there any right in it? Is there any humanity in it? Is there any religion in it? For a brave people, a noble people, a people who have suffered so much as the Southern peo‑


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ple, and surmounted with such heroism so many trials, we have presented a most piteous spectacle to the people of the world, whenever some man has cried out "yellow fever." It seems then that society and government and christianity are all forgotten, and we become a set of savages. Much of that is due to men who claim to know most about it and who may know least, because they discovered what they call the theory of "portable yellow fever," and forthwith every little place sprung up with a shot gun quarantine. They would not bury the dead. They would not even give to the sick a cup of cold water or a piece of bread. We resolved ourselves into a set of heathen and savages and turn on our own flesh and blood. I have known a Board of Health in this good town of Montgomery to decide that a great mass of pig iron from Leake's foundry in New Orleans, which had been out in the country for three weeks on the cars, and reeking with carbolic acid, might endanger the health of this city, but that two intelligent physicians whom the city council sent to Louisville to inquire whether there was yellow fever there and who found it might come back here with impunity. In the last epidemic, Mr. President, with all this foolishness, and I think that is a soft term for it, when they would not let a man stop in the State, the Health Officer of Alabama was going in and out from the Capitol every day in actual contact with yellow fever, and then coming back here and mingling with our wives and children.

The thing was nonsensical. What is the good of such action? Take that blessed town of Opelika, and I say God bless her, for her people have never closed its doors.  They know that yellow fever does not spread there and they opened wide their arms, as they also did in Tuskegee and other places in years gone by, to refugees; and yet the fiat of the State said you shall not stop there, you must go over to Georgia.  What was the practical result? People went over to Georgia and came back to Opelika and stayed there.  They spread all over Alabama.  It was nonsense, it was worse than nonsense, it was crime, because it was the State of Alabama warring on women and children.

Only a few years ago a cry went up all over this continent, that finally brought on a war in spite of some of the most eminent statesmen in this country, because a foreign people here concentrated in cities to starve; and yet here in Alabama in 1897, the population of the three chief cities in Alabama were, by the dictate of the State of Alabama.,compelled to stay here, men, women and children, and take whatever fate awaited them at the hands of a dread disease, if they could not go to other States, though shelter was offered in Alabama. Was not that worse than Spanish cruelty? They had the justification there that the government was warring upon its enemies, but here were the wives and children of our people and the citizens of Alabama, and it cruelly warred on them.


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I do not propose to add but a few words more. I remember well when my friend on my right (Mr. Lomax) and some of the rest of us here were trying to do what we could for the people who remained in Montgomery. There was a young widow with two children, whose husband could not get to her. She had no employment here, and she had no place to stay. She wanted to get to her friends in the country and could not. Finally the money was gotten for her, so that she could get out of the State. She was a bright woman, a sensible woman and an emotional woman. I tried to find her letter in which she described her pride in Alabama and how she steamed through its borders in the night, with all the windows down, a brutal guard at the door to keep them from getting air. She said when she got into Columbus, Georgia, that though she had always loved Alabama she got down on her knees, Alabamian as she was, and "thanked God that she was out of Alabama."

I want to put this amendment in the Constitution, so that such a condition of affairs can happen no more. It is right and it is proper. It is not a mere legislative declaration. It is an utterance in defense of liberty, and for the protection of the defenseless people who have suffered these persecutions and these outrages. They will rise up and call you blessed, if you put it in the fundamental law, whether it is legislative or not.

THE PRESIDENT ‑ The question is on the amendment offered by the gentleman from Montgomery.

MR. CUNNINGHAM ‑ Here at the eleventh hour ‑‑

MR. JONES (Montgomery) ‑ I beg the gentleman's pardon. but I offered that ordinance and the committee rejected it.

MR. CUNNINGHAM ‑ At any rate, without any official notice that this Convention would be called upon to consider so serious a question, we are brought face to face with an amendment which proposes to destroy the efficiency of the quarantine system of our State. That amendment is presented by a gentleman of profound learning in the law, of unquestioned patriotism, of boundless sympathy for the oppressed and the unfortunate everywhere. With a heart whose every impulse is prompted by sentiments of the highest conception of humanity and benevolence, it strikes me that before voting upon the proposition we should give it the wise and serious reflection that the subject demands.

I want to say, and I say it deliberately that the introduction of yellow fever, of the plague, of cholera, or typhus fever (not typhoid understand me, but typhus fever) and other forms of contagious and infectious diseases that have been met with in this country, is the result of one of two things, an inefficient quarantine at the point of departure, or an efficient quarantine at the point of landing.


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MR. JONES (Montgomery) ‑ Will my friend permit a question?

THE PRESIDENT ‑ Will the gentleman yield to the gentleman from Montgomery?

MR. CUNNINGHAM ‑ If the gentleman will note his questions, I will answer them in the last two minutes of my ten.

Now, Mr. President, the mouth of the jug to the State of Alabama in the matter of the introduction of foreign diseases, is the city of Mobile, and if this amendment is adopted, if I properly interpret it, the special Quarantine Board of Mobile Bay, which consists of commercial interests largely, with one or two members of the Board of Health upon it, will have the authority, notwithstanding the fact that the Board of Health prohibits it, to raise any quarantine that may have been established in the city of Mobile by the State Board of Health, and if there should be an epidemic of yellow fever, starting anywhere in the State of Alabama, there should be a county in this State in which there is no County Board of Health, and there are such counties, who will receive persons from infected places, then refugees from these infected districts, sorrowfully and distressed as they may be would have the right to go into these communities, and introduce yellow fever with their persons and with their baggage.

It is well that this Convention should know, and I will briefly inform them as to organization of the Board of Health of this State. The Board of Health of the State of Alabama consists of the Medical Association of the State. This has a Committee on Public Health consisting of a certain number of gentlemen, elected by the Medical Association. These gentlemen in turn elect a State Health Officer, who is paid out of the State Treasury of Alabama. The County Board of Health consists of the county medical societies in each county. Those county medical societies elect a Committee of Public Health, and also a County Health officer, who becomes the executive officer of the County Board of Health. Now I undertake to say, with all due respect to the County Boards of Health of the State of Alabama, that they have not the knowledge neither theoretical or practical in matters of quarantine. The State Board of Health, on the contrary, and especially its State Health Officer, has not only an opportunity and privilege, but it is his duty to study and post himself upon all of these questions, and thereby to qualify himself for the discharge of these delicate duties.

Now if the State Board of Health declares quarantine against any county or city in the State of Alabama, the Governor has to order it. It must be done through the Chief Executive Officer of the whole State of Alabama, and if he does not approve it, then it falls to the ground and does not become operative as a


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matter of fact. The question now is, shall the County Board of Health, consisting of five censors in each county, override the State Board of Health, and the State Health Officer and the Chief Executive of the State of Alabama. That is exactly what this amendment amounts to. Though all of these may declare a quarantine, and may show the reasons why it should be adopted, and the Chief Executive may order it, yet a little County Board of Health can throw open the doors of any county in the State to this unfortunate woman with her two children, and she may become the source of infection and destroy the lives of a thousand women and children that otherwise would be protected.

Therefore, I say while it appears inhuman to the unfortunate refugee, that it is an inhumanity to the unfortunate citizen in that community which has no protection from these infectuous and contagious diseases, and for that reason I think that this amendment should not pass.

I am perfectly willing to leave the doors wide open for the General Assembly to regulate these matters as they see fit, but I am opposed to placing in the Constitution an inhibition that will forever prevent, or will prevent until amended, which in all probability would not be for many years to come, any progress in the prevention of disease in this State. There is nothing better established in medical science than that these diseases are produced by microbes or bacteria scientifically speaking, and that they can be communicated from person to person, and by articles that have come in contact with the person. Some of them can be communicated through the atmosphere, such as la grippe: dengue and relapsing fevers, over which quarantine has no control. Then I say that we should not tear to pieces the system and regulation and law which has been the result of the study and experience of the medical profession not only in Alabama, but of the whole world, for centuries, by the impulse of an honorable, sympathetic and great hearted ex ‑ Governor of the State of Alabama, who knows nothing more about the principles of quarantines and disease than the present speaker knows about the law.

MR. JONES (Montgomery) ‑ Will you allow me to ask you a question ?

MR. CUNNINGHAM ‑ Sure. I think I have about two minutes left.

MR. JONES ‑ I will yield to the gentleman from Mobile.

MR. PILLANS ‑ I desire to ask the gentleman, he says that the ex ‑ Governor knows nothing of how that yellow fever is carried from place to place; can the State Board of Health be asserted to know any more about it as a certainty than the ex ‑ Governor?


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MR. CUNNINGHAM ‑ In answer to that question I will say that the question itself shows a patent want of appreciation of the advances of civilization. We were told today on this floor that the jury system has existed for centuries and the legal profession has failed to change it. I want to tell you that modern medicine is of recent origin and it stands today almost as an exact science. And upon these great questions the profession is not divided as our great legal lights are as to what constituted the rights of citizens of Porto Rico or the Philippines, or the carrying of concealed weapons. The medical profession is practically unanimous upon the question, and I will be pardoned for saying that the medical profession has produced brains equal to that of any other profession. They seldom have as much money because they deal with the misfortunes of humanity while the lawyers deal with the rascalities of life.

MR. HARRISON ‑ Will the gentleman allow a question?

MR. CUNNINGHAM ‑ Yes, sir.

MR. HARRISON ‑ I understood you in your remarks to say that one of your objections was that the County Boards would overrule the State Board. If there is no difference of opinion amongst you, then is there any danger to apprehend from this source?

MR. CUNNINGHAM ‑ I will answer that question of the gentleman by saying that the County Boards of Health, like every other set of public officials and every other relation in life, may be more or less influenced by certain circumstantial conditions; the influences of local environment address themselves to their consideration the same as other men. Doctors are not particularly exempt from these collateral influences and incidental circumstances any more than the legal profession.

I will not answer the question of the gentleman from Montgomery.

MR. JONES ‑ I would like to ask my friend if there is any great State in Europe or in this country which now maintains a quarantine against places; do they not maintain quarantine against individuals and isolate them if they are found suffering with contagious diseases?

MR. PILLANS ‑ Yes, I will suggest that Turkey does.

MR. JONES ‑ I meant to say civilized countries.

MR. CUNNINGHAM ‑ In answer to that question the quarantine system of European States is so good that it is very seldom indeed that there is an introduction of disease prevailing in any other State, and therefore the question of local quarantine is practically a matter of no importance.


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MR. JONES ‑ How about the city of New York?

MR. CUNNINGHAM ‑ I do not know anything about the city of New York except that it is perhaps, beyond the yellow fever line. I would say this much to the gentleman, however, that if the plague was prevailing in Montgomery he would find himself unable to land in the city of New York.

THE PRESIDENT ‑ The time of the gentleman from Jefferson has expired.

MR. LOMAX ‑ I do not care to consume much of the time of this Convention upon this proposition. I do not know exactly how to characterize it, but the almost contemptuous way in which my distinguished friend from Montgomery, spoke of propositions being advanced here upon ordinances or amendments which contained matters of legislation, I insist before this Convention that the proposition contained in the amendment of my friend from Montgomery is absolutely in the control of the General Assembly, and needs no constitutional enactment in order for the legislature to control it. The whole matter of quarantine is in the hands of the legislature. There is no necessity of putting in this Constitution anything about a quarantine. Either quarantine laws are wrong, if the eminent, able and distinguished physicians who have made a lifetime study of this question have shown that they are absolutely without brains and do not know what quarantine is when they see it, then it is in the power of the General Assembly to say that the Board of Health shall be abolished, and that there shall be no more quarantine, and men shall not be required to stay out of the State after they have run out of it away from an epidemic.

Now how did these people get out of the State that my distinguished friend talks about? Were they forced to go? They were not forced to go except that other quarantine rules which says that the more people you get out of a community at a time of epidemic, the less you leave for the disease to feed upon, and therefore the quicker you can stamp out the disease. But they do not have to be told that. Let the cry yellow fever come up in any community in Alabama and a mad, wild rush begins for other places and for other States, and nothing but an army with gatling guns could stop it, and when you have thus voluntarily carried them out of the State, because the quarantine is kept in force, and they say for a certain period of time you shall not come back into the State, we are told that that man is exiled and that we must put a clause in the Constitution to forbid it. It is a common practice and custom amongst quarantine officers, that at certain periods of an epidemic, after the quarantine has been in force for some time, and the necessity for extending it to the whole State may cease to exist they establish a marginal line at the edge of the dangerous districts, and let the people come into the non ‑ in‑


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fected districts, and thereby reduce the extent of districts from time to time until the end of the quarantine comes. Now I do not pretend to know anything about quarantine. The result has been that the concensus of the highest authority is that the best way to prevent the spread of infectious and contagious disease is by quarantine. You have just heard a statement from a distinguished gentleman who understands the proposition. I do not.

MR. PILLANS ‑ Will the gentleman allow me to ask him to name the authorities whether they are American authorities or European.

MR. LOMAX ‑ I cannot name an authority because I have read them from time to time, and do not know what they are, but I think that I can name one who knows as much about quarantine as either the distinguished gentleman from Mobile or my distinguished friend from Montgomery, and that is Dr. Russell M. Cunningham of Jefferson County. (Applause.)

Now, I have gone beyond what I wanted to say. What I wished to say was this: I do not blame people from running from yellow fever. I wanted to run mighty bad in 1897, but I felt like it was my public duty to stay here, and I stayed side by side with my distinguished friend there, and did what I could, but I wanted to run. I do not blame them from running, but when they do go, I say do not let us put into the Constitution a provision that shall say that we cannot keep them out until the health of Alabama is secure against infection. We owe a duty to our State more than we do to any supposed exile that has gone from her borders. I say, gentlemen of the Convention, that this is purely a question of legislation; that the whole matter embraced in this amendment can be enacted by the General Assembly of Alabama, and there is no reason why we should put into this Convention an amendment which gives to the word "exile" an entirely different meaning from what it has always had before, and which puts into the Constitution a matter that is purely, absolutely and exclusively a subject of legislative action. I think the amendment should be laid upon the table.

MR. HEFLIN (Chambers) ‑ I want to say a word against the Convention usurping the functions of the Legislature of Alabama. I favor the report of the committee to leave this section as it is in the old Constitution. I believe, Mr. President, the amendment which says any well man or able ‑ bodied man, I do not remember exactly how it reads, that by the consent of the health officer in any county, may go into that county, although he may come right from disease and may carry smallpox right into the community, should not be adopted. It may be that the health officer is related to those who live in the city, and who would like to get out among the hills, and these health officers,


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by reason of their relation, or their friendship, against the will of the sovereign authority of the county, might extend an invitation to these gentlemen who live in the city where disease may be located, when the people of that county might rise up and say we do not want them to come into our hills and our homes nestling there, among our wives and children, because we want them free from this disease, and we do not want you officers to let these people come in here and run the risk of spreading disease in our county. Under that amendment, there is no power by which this can be regulated. The health officers can invite the city of Montgomery into Chambers County, and five thousand voters in that county might rise up, but they have got no relief whatever under that amendment, and I am opposed to it. I do not think that it ought to be incorporated in this Constitution. If the gentlemen insist that there ought to be any further law upon this question, let them submit it to the General Assembly of this State, let them take it up with the legislative bodies, as it is purely and wholly a legislative question. We ought not to take up the time of this convention with the consideration of legislative questions, and, Mr. President, in the hope that we will get through with this report this evening, I make the motion to lay the amendment upon the table.

And upon a vote being taken, the motion to table was carried.

THE PRESIDENT ‑ The question recurs upon the section as reported by the committee.

MR. CUNNINGHAM ‑ I move its adoption.

And upon a vote being taken, the section was adopted.

Section 32 was read as follows:

32. That temporary absence from the State shall not cause a forfeiture of residence once obtained.

MR. SANFORD (Montgomery) ‑ I desire to offer an amendment.

The amendment was read as follows: Insert the words "or county" after the word "State."

MR. HEFLIN ‑ I move the adoption of the amendment.

MR. LOMAX ‑ I move to lay the amendment on the table. The section is just as it was in the previous Constitution and as it ought to remain.

MR. SANFORD (Montgomery) ‑ I offer this amendment because the rights of the man in a State depend upon his residence. They depend upon his residence in the county, and if it is necessary to say that he shall not forfeit his residence in the State, it should be equally right to say he shall not forfeit it in the county


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by a temporary absence. His right to be sued depends upon his residence in the county. Therefore, I say it is just as necessary to say that a temporary absence shall not forfeit his residence in the county as that a temporary absence shall not forfeit his residence in the State. It is his residence in the county that enables him to exercise his political right, and also the burdens of taxation are imposed upon him by reason of such residence. He is taxed in the county where he lives, and he votes in the county where he lives.

MR. LOMAX ‑ I move that the amendment be laid upon the table ?

Upon a vote being taken, the motion to table was carried.

MR. LOMAX ‑ I move the adoption of the section as reported.

Upon a vote being taken, the section was adopted.

Section 33 was read as follows:

33. That no form of slavery shall exist in this State; and there shall not be any involuntary servitude, otherwise than for the punishment of crimes, of which the party shall have been duly convicted.

MR. LOMAX ‑ I move the adoption of the Section; it is unchanged.

Upon a vote being taken the Section was adopted.

Section 34 was read as follows:

34. The privilege of suffrage shall be protected by laws regulating elections, and prohibiting, under adequate penalties, all undue influences from power, bribery, tumult or other improper conduct.

MR. LOMAX ‑ The only change, Mr. President, made in that Section is the striking out of the word "right" and inserting the word "privilege" ‑ the privilege of suffrage, instead of the right of suffrage.

MR. HEFLIN (Chambers) ‑ I move the adoption of the Section.

Upon a vote being taken the Section was adopted.

MR. LOMAX ‑ Before the next Section is read in the Committee's report, I desire to call the attention of the Convention to the fact that Section 35 in the Preamble and Declaration of Rights of the Constitution of 1875 is stricken out by the Committee and does not appear.


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Section 35 was read as follows:

35. Foreigners who are, or who may hereafter become bona fide residents of this State shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property, as native ‑ born citizens.

MR. SANFORD (Montgomery) ‑ I have an amendment. The amendment was read as follows: Amend Section 35 by inserting in the first line the word "naturalized" before the word "foreigner."

MR. SANFORD ‑ The same reasons apply to that, that were offered in the argument the other day in regard to the suffrage question and to the individuals having declared bona fide, their intentions to become citizens.  While we invite emigrants to ths State we want them to come as citizens, and not as transitory marauders. The amount of real property that is owned in the United States today is astounding. In Texas, in Mississippi, in West Virginia, in Tennessee, the amount of property is estimated at 27,000,000 of acres. nearly two ‑ thirds of the whole State of Alabama, owned by foreigners, residents of England, Germany and France, and therefore I say that if these people are to own land, let them be citizens so they can bear the burdens of citizenship as well as enjoy the benefits of the rights of such a position. I will mention some of these that own lands in this country. Three millions of acres in Texas, to show you the character of that ownership, are owned by Earl Cardigan, Duke Buford, William Alexander, Louis Stephenson, Douglas Hamilton, Duke of Borden, Duke of Rutland, and others of that character. So, in Mississippi, Florida, Tennessee and Texas, I say these people reap the benefits from these lands, they should also bear something of the burdens of State. It is said in Texas thousands of tenants pay their rentals to people living abroad, who have never set foot on the American shore. This results in the impoverishment of this country for the benefit of foreign nations and therefore in Alabama let them be naturalized citizens, that shall own property and enjoy the rights of such proprietorship of lands in this State. It is for that I move that the words "naturalized citizen" be placed before the word "foreigner."

MR. BOONE ‑ I move to table the amendment.

Upon a vote being taken the motion to table was carried.

THE  PRESIDENT ‑ The question recurs upon the adoption of the Section as reported by the committee.

MR. LOMAX ‑ I move the adoption of the Section.

Upon a vote being taken the Section was adopted .

Section 36 was read as follows:


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36. That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty and property, and when the Government assumes other functions, it is usurpation and oppression.

MR. LOMAX ‑ There is no change in that Section, and I move its adoption.

Upon a vote being taken the Section was adopted.

MR. LOMAX ‑ I will ask the indulgence of the Convention and prefer a request, in as much as I have not consumed much of the time of this Convention, certainly no more than I have felt was my duty to consume as Chairman of this Committee. There are but three more Sections to the report of the Committee on Declaration of Rights and if we can finish the consideration of this report this evening it would give me the opportunity to leave here for a few days to answer a very urgent and important call which I have upon me and I ask the indulgence of the Convention to finish the consideration of this report, and I trust it will be granted.

Upon a vote being taken the rules were suspended.

Section 37 was read as follows:

37. That no restraint upon the privileges of suffrage on account of race, color or previous condition of servitude, shall be made by law.

MR. PETTUS ‑ I offer an amendment.

MR. SAMFORD (Pike) ‑ I move to lay that section upon the table.

MR. LOMAX ‑ Don't do that. Do not cut off all debate. I want to state the reasons why this section should remain.

MR. PETTUS I will state to the gentleman from Pike that I have the floor and I have offered an amendment.

MR. SAMFORD ‑ I beg your pardon.

The amendment was read as follows: Amend the report of the Committee on Preamble and Declaration of Rights by striking out Section 37 on Page 10 of the proposed ordinance.

MR. PETTUS ‑ In regard to that I want to say that I do not see why the State of Alabama should perpetuate the Fifteenth Amendment in its Constitutions. Some of us have a hope that some time in the dim and distant future that the light of reason will dawn upon this continent, and that the Fifteenth Amendment will be repealed in the Federal Constitution, and if that be true we do not want our hands shackled by the State Constitution so


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that we may not regulate our suffrage in such manner as it may seem best to us. I therefore move to strike out the section and on that I call for the previous question.

The previous question was ordered.

MR. LOMAX ‑ Mr. President, I desire for the Convention to understand the reasons of the committee for leaving that section in the Bill of Rights. As I understand the report of the Committee on Suffrage there is no change or restriction upon suffrage, on account of race, color or previous condition of servitude.

MR. BOONE ‑ I would like to ask the gentleman a question.

THE PRESIDENT ‑ Does the gentleman yield?

MR. LOMAX ‑ Yes, sir.

MR. BOONE ‑ Is not that limitation put upon the State of Alabama by the 15th amendment and has not the Supreme Court of the United States repeatedly held that the amendment because a part of the law of the land including the law of the State?

MR. LOMAX ‑ I will say that this is imposed upon the people of Alabama by the 15th amendment, and that the Constitution of the United States and the amendments thereto are the supreme law of the land and govern Alabama as well as every other State, but what I propose to say is this, there is not a line or a syllable in the majority or minority report of the Committee on Suffrage which undertakes to say, or which pretends to say that there will be any restriction of the privilege of suffrage on account of race, color or previous condition of servitude. Now, it is apprehended and in fact, Mr. President, it is threatened, that whatever suffrage amendment this Convention sees fit to adopt, will be carried to the Supreme Court of the United States for review. So far, as I have been able to read the report of the majority of the Committee on Suffrage, I believe that provision is constitutional and I do not believe that the Supreme Court of the United States can declare it unconstitutional.

MR. COBB ‑ Do you hold that the declaration of rights is simply an announcement of the great fundamental principles of government in Alabama? Is that true?

MR. LOMAX ‑ I hold that the declaration of rights consists of three things: First, the rights reserved to the people; second, the rights delegates to the Legislature, and third, restrictions upon the power of the Legislature. These are the three consistent elements of a bill of rights.

MR. COBB ‑ One more question, please.

MR. LOMAX ‑ Certainly.


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MR. COBB ‑ Do you believe that the people of the State of Alabama believe that the 15th amendment of the Constitution of the United States is a great fundamental political principle?

MR. LOMAX ‑ I do not know that they do.

I want to say that so far as I am concerned, I am rather inclined to think, as Bourke Cochran expresses it, we seldom go by the 15th amendment, but however it may be that amendment stares us in the face as the fundamental law of this land.

What I was going on to say, Mr. President, was this: It is apprehended and threatened, as I say, that the Constitution which we adopt will be carried to the Supreme Court of the United States for review, and that the question of the constitutionality of our suffrage amendment will be passed on directly by that court.

Now it has been declared in some cases, though I do not recall the title now, that in deciding questions of this sort that the court will look at contemporary history, and they will look at the reasons of this Convention, based upon which the constitutional provision was adopted, when the court passes upon these questions; and when the Supreme Court of the United States looks at the debates of this Convention and sees that we have stricken out of the bill of rights the declaration which was in the Constitution of 1868, and in the Constitution of 1875, and has been in the Constitution of Alabama up to this moment, the Supreme Court of the United States will say these men stand before us self ‑ confessed violators of the 15th amendment.

MR. O'NEAL ‑ Is it not a fact that this provision was incorporated into the Constitution of 1868 by force, and by threats of Federal power?

MR. LOMAX ‑ I do not think that the Constitution of 1868 was ever really binding upon the people of Alabama, because it was not adopted by the people.

MR. PETTUS ‑ I desire to ask the gentleman if he does not think a legitimate construction that can be put upon our action in striking out this section, is that we hoped that the Fifteenth Amendment would sometime or other be repealed and that this Convention wants to leave it in the power of the General Assembly at such a time to restrict the suffrage as they think proper?

MR. LOMAX ‑ I do not think the court in passing on the question would come to that conclusion.

MR. COLEMAN (Greene) ‑ If we put it in our Constitution does it not appear as if we approved and endorse the Fifteenth amendment?

MR. LOMAX ‑ Not necessarily.


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MR. COLEMAN (Greene) ‑‑ Would it not be said everywhere that we framed our suffrage law confronted with the Fifteenth Amendment and that we are not only bound by it, but that we adopted it voluntarily, and made it a part of our fundamental law, and we thereby endorse it and accept the reasons for it?

MR. LOMAX ‑ I don't think so. Any reasonable man in the light of contemporary history and in the light of the history of Alabama, could come to no such conclusion about any man who is a true, square out citizen of the State of Alabama.

MR. WALKER ‑ Would the striking out of this provision as contained in the report, strike out anything from the law at all?

MR. LOMAX ‑ Certainly not.

MR. WALKER ‑ The law will be just the same whether it is in the Constitution or not?

MR. LOMAX ‑ Precisely, but I wanted this Convention to understand the reasons that actuated our Committee. We thought it better to leave these words in here, than subject this Convention to the criticism, that while in your suffrage article you pretend not to make any discrimination on account of race, color, or previous condition, you show by your conduct and action in your bill of rights that you did intend to make a discrimination on account of race, color or previous condition of servitude.

Now I think it is better to leave it in there. So far as the Fifteenth Amendment is concerned I think it is wrong in principle, it was wrong in morals, and I regard it as one of the political crimes of the nineteenth century, but as it is the law, as we cannot get around it, as it may have influence upon the question of upholding our suffrage amendment in the United States Supreme Court, I think it better that we should bear the ills that we have than to fly to others that we know not of.

MR. BOONE ‑ I ask you, in the event that our suffrage article is attacked, and that the case is carried to the Supreme Court of the United States, would not the court pass upon that question as to whether or not it infringed the Constitution of the United States, whether it was incorporated in the Constitution of Alabama or not.

MR. LOMAX ‑ Yes, sir; but has not it been repeatedly held that the court looks to the legislative intention.

MR. CHAPMAN ‑ A point of inquiry. Is there anything before the Convention?

MR. LOMAX ‑ I will state to the gentleman from Sumter that I am before the Convention, but I will be down in a few minutes.


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MR. CHAPMAN ‑ But my friend is not a thing. I hope he will not consider himself a thing.

MR. WATTS ‑ Is it not a fact that the State of Alabama in fact did ratify the Fifteenth Amendment?

MR. LOMAX ‑ I think so.

MR. WATTS ‑ Would not this in effect be a ratification of it ?

MR. LOMAX ‑ If this would be a ratification of it it was ratified in 1875, because this is the identical language of the Constitution of 1875.

Now gentlemen of the Convention, those are the reasons that actuated your Committee. They believed it was better to leave these words in, and they believed that it would have a better effect to do so, but if it is the deliberate judgment of the Convention that they be stricken out. I want to say to you that the Committee on Preamble and Declaration of Rights will have no tears to shed.

THE PRESIDENT ‑ The question is on the amendment of the gentleman from Limestone.

Upon a vote being taken the amendment was adopted.

MR. WHITE ‑ I think the next in order is to adopt the section as amended.

MR. LOMAX ‑ Yes, Mr. President, I move ‑ no, the section has been stricken out. My parliamentary friend came very near getting me into an error.

Section 38 was read as follows:

38. In the government of this State, except in the instances in this Constitution hereinafter expressly directed or permitted, the Legislative Department shall never exercise the Executive or judicial powers, or either of them; the Executive shall never exercise the legislative and judicial powers, or either of them;  the judicial shall never exercise the legislative and executive powers, or either of them;  to the end that it may be a government of laws and not of men.

MR. HEFLIN (Chambers) ‑ I move the adoption of the section.

Upon a vote being taken, the section was adopted.

Section 29 was read as follows:

39.       That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against


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any encroachment on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.

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

Upon a vote being taken, the section was adopted.

MR. LOMAX ‑ Now, Mr. President, I believe the proper course is to move that the article be engrossed and ordered to a third reading.

MR. HOWZE ‑ I rise to a question of parliamentary inquiry. I do not understand where they get that rule from, that it must be ordered to a third reading and engrossed. It semis to me that this article is ready for its passage now, and when it passes it has to be engrossed under Rule 52, as I understand it. After its passage it has to be engrossed, but not before.

THE PRESIDENT ‑ Rule 47 reads as follows:

Rule 47 ‑ When any ordinance is introduced it shall be read at length and be referred by the President without a vote being taken, unless otherwise ordered by a two-thirds vote of the Convention, to the appropriate committee.  No ordinance shall be reported back from any committee until after the lapse of one entire legislative day.  When any committee shall have reported to this Convention any article or section of the proposed Constitution, said article or section shall again be read at length and three hundred copies thereof printed for the use of delegates; and such article or section shall lie on the table at least one day and until in regular order it shall be taken up for consideration by the Convention.

and rule 52 says : Rule 52– All Articles of the Constitution after their adoption by the Convention, shall be engrossed before their delivery to the Committee on Order, Consistency and Harmony of the Constitution and after the report of said Committee has been adopted by the Convention said Constitution shall be correctly enrolled.

MR. HOWZE ‑ Is not the Article ready to be passed?

THE PRESIDENT ‑ Not until it is read a third time.

MR. HOWZE ‑ The reading just had is the third reading.

THE PRESIDENT ‑ This is the second reading.

MR. LOMAX ‑ Does the gentleman make a point of order?

MR. HOWZE ‑ I rise to a question of parliamentary inquiry. I cannot find any rule for anything of that kind.


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MR. LOMAX ‑ I do not desire to detain this Convention. I will move that the Article be ordered to be engrossed and read a third time after engrossment.

MR. O'NEAL ‑ I rise to a parliamentary inquiry. If engrossed and ordered to a third reading, is it open for debate on the third reading?

THE PRESIDENT ‑ It is open for debate but not for amendment.

The question being upon the motion of the gentleman from Montgomery, the same was carried.

MR. LOMAX ‑ I desire to return my thanks to the Convention for the consideration they have shown me in completing the report of the Committee this evening.

Leaves of absence were granted to Mr. Kirkland for tomorrow and Mr. Carmichael of Coffee for today.

Thereupon the Convention adjourned until tomorrow morning.