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capital as a matter of course, or some other prominent point, for the hearing of appeals. Now, sir, a judge, under this regulation, must necessarily leave the lower, or it may be the upper part of California, and travel a great distance. Suppose he leaves the southern part of the State and has to travel to this point, or farther north. It would be a journey of fourteen to eighteen days; and it would take the same length of time to return. There would be more than one month lost by that judge going to and returning from the point where he is to hear the appeal. Should your court meet once, twice, or three times a year, there would be from three to six months every year lost in travelling to and returning from the court; and if half the time of these judges is lost in travelling, the other half can only be left to the trial of original cases. In the system which I propose, it will not be necessary for the same judges to sit in the two different courts; consequently, when the judge tries his case, he does not have to travel. His salary may be less. But it may be argued that there are more officers in the court which I propose. There may be one or two more ; but the majority saw the failure of their plan in relation to these judges acting in both courts, and to meet the advantages of my system they inserted, after the articles were drawn up, a provision that the Legislature, whenever it deems it expedient, may provide by law for the separation of the Court of Appeals from the Circuit Court, and for the election of the circuit judges by the qualified electors of each judicial district. This, when brought into effect, is similar to the system embodied in the minority report. The fact that they have introduced it shows that it must become the permanent judicial system. It is to be organized and brought into effect by the Legislature at some future period. Now, sir, I conceive it to be of the highest importance that our judicial system should be made permanent in the first instance; that it should not be established with any view to a change at some future period; that when prac. titioners in these courts bring in their cases they may know where they are to end. This will prevent endless litigation, which would be the consequence if you have the courts vascillating; here to-day and there to-morrow; different judges on the same Court of Appeals, and the prospect of a change at any moment it may suit the wishes of the Legislature. I do not desire, 'Mr. Chairman, to trespass upon the patience of the Flouse. I shall be satisfied with the decision of the Conven. tion on this subject.
Mr. Crosby. I hope the substitute of the gentleman from San Jose (Mr. Dimmick) will be adopted, for I am clearly of opinion that it is a more advantageous plan than that reported by the majority. I consider it, as the gentleman remarks, of the highest importance that, in the organization of this new State, our judiciary should be fixed and permanent; that we may know what to rely upon in bringing our suits. It has been my fortune, or misfortune, to see the practice un. der the new Constitution of the State of New York. From June to December we had more conflicts of decision in the Supreme Court, (which was precisely organized like this, with the exception that it was extended a little further, having eight circuits,) in that short space of time, more conflicts of decision than we had for years and years before, under the old system, where there were separate judges for the different courts. I think the proposition of the gentleman from San Jose is more feasible and advantageous in every respect, and I shall vote for its adoption.
Mr. Borts. We are considering the first section of the report of the Committee. I am quite at a loss to vote. If I vote for the substitute of the gentleman from Monterey, (Mr. Ord,) which, as I heard it read, struck very favorably upon my ear, under the rules of this House, it is not open for amendment. I would like that proposition with certain amendments.
Mr. ORD. I should be pleased to receive amendments.
The CHAIR stated that, according to the rules, amendments could not be made to it at this time.
Mr. SEMPLE moved that the Committee suspend the rules, and take up all three propositions at once.
A discussion here arose as to the rules, in which various points of order were raised, but without coming to any decision. The Committee, on motion, rose and reported progress.
On motion, the House then took a recess till 8 o'clock P. M.
NIGHT SESSION, 8 O'CLOCK P. M.
Mr. CROSBY offered the following resolution :
Resolved, That a committee of five be appointed with instructions to report upon the three plans for a judiciary now before this body.
He moved this for the purpose of uniting those different propositions, and so concentrating the best points of each, as to have a system reported to the House which would combine these advantages, and be liable to none of the objections urged against them now. He thought this might be the means of facilitating the action of the House, and would probably prevent much confusion and avoid a long debate, which seemed likely to arise if the propositions now before the House were all taken up and discassed.
Mr. MCDOUGAL. I was about submitting a proposition of the same kind. My views differ slightly from those of my colleague. I move to amend his resolution so that instead of a committee of five we make a committee of ten, to be composed of the lawyers of this House. There is a fine large room below in which they can discuss all the legal technicalities, settle all the knotty points, and then bring in something upon which we can act without further difficulty. I am always in favor of letting the lawyers fight these abstruse points alone.
Mr. McCarver. I cannot conceive what advantage we are to derive from this proposition. The members of this committee may adhere to the different plans, and we may have as much confusion and trouble as ever. For my part, unless the gentleman shows me some better grounds for creating such a committee, I shall go for the House fighting this battle themselves.
Mr. Gwin. I have great respect for the gentleman's (Mr. Crosby's) opinions, but I do not think it advisable to appoint this committee. Five lawyers have al. ready had this subject in hand. I think the House will be better able to settle it than any committee.
Mr. ÁALLECK. This whole subject was before the Committee of twenty. The result is the different systems presented. Finally, this majority report was agreed to by all the members except one. I think the House had better go on and determine on these reports. If we appoint the committee it will require a delay of at least a day before we can proceed with the consideration of this subject.
Mr. Borts. I tell you what was done in the Convention that formed the Con. stitution of the United States. Members of the Convention offered resolutions on the subject, which were voted upon, expressive of the sense of the House. Many sets of resolutions were offered in this way, and after the subject had been fully debated, it was referred back to a Committee. After we have seen these various propositions, they might be referred back to the Committee, which might then make such a report as they had reason to believe would meet the sanction of the House.
The question was then taken on the resolution, and it was rejected.
On motion, the House then resolved itself into Committee of the Whole, Mr. SHANNON in the Chair, on the report of the Committee on the Constitution.
COMMITTEE OF THE WHOLE.
The article on the Judiciary being under consideration
Mr. Borts said: My choice lies between the first section of the minority report and the first section of the report of the Committee. I shall detain the House but a few moments in stating my views--raising my objections upon each particu. lar paragraph as it comes up for consideration.
Mr. McCARVER. I rise to a point of order. My understanding is, that the first section alone is under consideration.
Mr. Borts. I believe the point of order which the gentleman is about to raise is, that the gentleman from Monterey is about to be out of order. Mr. Chairman, it is to exactly that first section that I am about to object; and if the gentleman had only waited, I would have told him, in my own poor way, the reasons why I prefer the first section of the minority report in lieu of it. It will not do for gen. tlemen to attempt to trammel us within a narrow limit of debate. It is necessary, in discussing this subject, that I should refer to other parts of the report.
Mr. Gwin. If the gentleman will give way, I will offer a suggestion by which I think the question may be opened entirely." It seems to me that the whole dif. ficulty turns upon a single point. If the decision of the House is to strike out the fourth section of the majority report, with a view to adopting the minority report, the system falls, because that is the section combining the Supreme and District Courts.
Mr. Borts. I would agree with the gentleman who proposes to open the way to this question, but the Chairman tells me it is open. I was about to give my reasons why I prefer the first section of the minority to the first section of the majority report. It is because it is the forerunner and introducer of certain other sections which would not so appropriately come up in the majority report. The other contains this proposition : that the final and Appellate Court shall be distinct from the District Court. 'To me that is a most important point. If you will notice the report of the majority, it admits this proposition by a provision for the future separation of the Appellate from the District Court; it sanctions it as a good prin. ciple. I need not enter into the reasons fully why these courts should be distinct, for I conceive they are admitted by all ; but one main substantial reason is this : When I take, a case to the Appellate Court, I want an impartial court. I know, sir, what the law of consistency is. It pervades the mind of man. We all know the obstinate character of man; we all know that upon this principle is founded the objections to a juror who has ever expressed an opinion upon the subject be. fore the court. What is the case with respect to a District Court? It is very true, sir, thàt you acknowledge the principle which I maintain, when in your fourth section, you disqualify a district judge who has given a judicial opinion upon any case in the Circuit Court from sitting in the Court of Appeals upon that case. But do you remember that the other judges have also, in all probability, if not decided the case, decided the principle below? And when I carry such a case up, do I carry it to an impartial court? No, sir; and there are many other reasons why these two courts should be kept separate and distinct. I want for that final court a degree of experience, talent, and wisdom, which I cannot expect to command in the inferior courts. I want the very highest order of legal ability to sit in that court. This great principle is admitted to be the true one by the vêry Committee who brought in that report, and they provide for carrying it into effect in a few years ; but we are told by the gentleman from San Luis Obispo, (Mr. Tefft,) who is a most unflinching supporter of the report of the Committee, that the wants of the country do not require it at present. What am I to understand from that, sir ? That we can afford for the present to do without that sys. tem which the report itself admits, in the abstract, is the best. What is there in the circumstances of the country to destroy the principle ? One principle must be better than the other. What is there that enables us to dispense with this better principle in favor of the worse one? I know none; I cannot understand what grounds there can be for such a proposition. If the gentleman means to say (which is altogether a mere secondary consideration) that it is a cheaper system, that is another matter ; but if the gentleman admits that the other is a better sys. lem, the cheaper does not weigh a feather in my mind. I have fought this cheap. er principle throughout; I have opposed it on all occasions, because I believe it to be the dearest when properly considered. I stand here to ascertain which is the best system ; and, in my opinion, that is the cheapest system of justice which is the best. For these reasons, I prefer the opening clause of the minority to the first section of the majority report; and for these reasons I shall vote for it, intending to vote also for the other clauses that hang upon it.
Mr. Jones. It appears to me that we have a sort of triangular duel here, in which, of course, the supporters of each report have to fight two other propositions. Now, I claim to consider in reference to the whole system of judiciary certain fixed principles and so far as any one of these reports agrees with these princi. ples, I am willing to sustain it. I hold, first, sir, that this is a subject which should not be lightly treated or hastily decided by this Convention. I consider it one of the most important questions yet submitted to the Convention-touching the honor and welfare of the State and the prosperity and happiness of the people in perhaps a greater degree than any other yet discussed. Your Legislative and your Execu. tive departments might be faulty in design, the principles of liberty might be discarded and denied by the despot upon the throne, and the evils would be less felt than those under a bad judiciary system from the despot of the law, at the firesides of the people. I hope the members of this body will discard their usual locomotive speed, and endeavor to consider the propositions before the House with a due sense of their importance; and I claim the right which has heretofore been granted by the Chair, not to consider one section alone, but the whole system as embodied in the different sections. Will you tell me the quality of a watch by examining one of its wheels? We must look at the whole machinery, we must examine into the general principles. In regard to the propositions before the House, what is the first requisite of a system of judiciary? It is not that it should be cheap, but effective. If it is not an effective system it is not cheap; it is no system at all. The requisites of an effective system are simplicity of construction and a speedy administration of justice. I am compelled to differ greatly from the report of the majority of the Committee. I do not think, above all things, that their system is an effective one. It is complicated in its machinery, and will work badly. It has left out a great many wheels that should be there, and has a great many in that should not be there. The minority report is better, but I must differ from that also in certain points. I fall, then, upon the system of my friend from Monterey, (Mr. Ord.) I believe that to be the best yet presented, with the amendments which may be proposed. I have said that the report of the majority of the Select Committee contained a great deal too many wheels. Some gentleman told us to. day that it established four different tribunals. If I am not mistaken there are six: there are general jurisdictions and special jurisdictions, limited and original jurisdictions, supervisory and criminal jurisdictions. The very first section would stagger a systematic lawyer, when it says that the Supreme Court shall have gen. eral jurisdiction. I have heard of a great many jurisdictions ; I have heard of original and appellate, separate and concurrent, of limited and universal, but I never heard of a general jurisdiction. Is it intended to include all the jurisdictions in the category? Does it mean that it shall be original and appellate ; that it shall be universal and special ; that it shall be limited and concurrent? Does it include every thing which comes within the term jurisdiction ? Now, sir, I have a plain way when I wish to say anything of saying it, and I take it that the Committee has the same way. If they say general jurisdiction, I take it at what they said. There are altogether too many tribunals. I see they have a Supreme Court, a Circuit Court, a Court of Appeals, a County Court, a Justices' Court, Courts of Oyer and Terminer, and Tribunals for Conciliation. They give these courts special, limited, general, and universal jurisdiction. By the 11th section they provide for the holding of a Court of Oyer and Terminer, without having provided any where for the establishment of such a court. I should like to know if gentlemen understand what this Court of Oyer and Termines is intended for? wherein its jurisdiction will differ from the other Courts? I should not only like to under. stand it myself, but should like every member of the House to understand it; and I doubt whether such a translation has been presented to the Spanish gentlemen here as they will understand. I am therefore opposed to this report. It contains too many courts ; it asserts a principle which I have always denied—that is, the principle of special jurisdiction. I will not give my vote in favor of any Court having special jurisdiction. The principle is a bad one.
Sir, 1 have practised in a state where there was a court of special jurisdiction, where these very County Courts were organized with probate jurisdiction, and I refer to gentlemen here from the State of Louisiana, if there was not a special Convention to abolish that court in that State. Its evils were so great that it was actually deemed necessary to call a Convention for the purpose of getting rid of them the very same courts here proposed having a special jurisdiction. I say this report contains too much and too little. It has omitted very many necessary things in a system of judiciary. There is no provision for a chief justice ; none for impeachment; none for district attorneys, sheriffs, and coroners ; none for the jurisdiction of district courts ; none for the qualification of judges; none for the jurisdiction of justices of the peace ; none for the removal of officers; all impeachments seem to have been placed at the power of the Legislature. Now, I do not wish to place our judiciary at the mercy of the Legislature. I do not believe that the Legislature should have the right to say that a judge of the Supreme Court should be deprived of his office. I think a mode of impeachment should be pre. scribed by the Constitution ; and as to the qualification of judges, shall the Legis. lature say who is to be judge? I think the direct qualification of judges should be established in the Constituiion. Then there is the jurisdiction of the District Courts. I never saw a system which did not establish that jurisdiction in the system itself. I have said that I prefer the minority report. I do prefer it infinitely to the majority report, but at the same time I cannot agree to it entirely. It establishes these same County Courts, with special jurisdiction, against which I fought for years in another State, and against which I hope I will have a majority in this Convention to fight with me. Now, I wish to inquire whether it is intended to try in this special court contested cases. I presume it is not. I have heard that it is merely intended to transact such probate business as is not opposed such as granting letters of administration, setiling accounts, &c. Now, Mr. Chair. man, the first thing we should decide upon is a simple system of courts. Why not say that the clerk of each county shall be empowered to grant letters of administration and settle accounts where there is no contest? The system which, above all others, I would support would be a system of three courts alone--such a system as that of my friend from Monterey, (Mr. Ord.) A Supreme Court with appellate jurisdiction only, a District Court with universal jurisdiction beyond a certain sum, and a Justices' Court with universal jurisdiction to a settled sum. When one wishes to bring a suit, it is easy for him to know whether his account is over or under $300. He can easily ascertain what court he should go before. Let us therefore establish three simple courts, so organized as to hold their jurisdiction within a certain limited sum. You have there all the officers that are necessary. The Supreme Court, which sits the whole year round for the decision of appellate cases, and which can transact all the appellate business of the State. You have district judges who, instead of spending two, three, or four months from their own districts, to transact the business of another court, are distinct and separate. You have for your justices the ordinary conservators of the peace. You have in your clerks, officers of the court amply sufficient to transact all the unopposed probate business of the country. Where is there a single wheel wanting in the machine? When we have enough let us not take any more. When we have tribunals sufficient, do not call up tribunals to complicate the judicial system of the State. want 'simple courts, for, as a population in this country from every portion of the Union and from all parts of the world, we are accustomed to different systems of judiciary and different systems of law. Let us have a system which all the people