The report of the majority provides for a Supreme Court, a District Court, a system of County Courts, and Justices of the Peace. To avoid expense, the District Court judges are to act as Supreme judges. Here we make judges act as supreme judges and circuit judges. I think this is good policy at this time. It is adequate to the present wants of the country, and more economical than the others proposed. In the next place, we provide for a system of County Courts-a county judge who is to set as surrogate or judge of probate. The proposition of the gentleman from Monterey (Mr. Ord) requires that the clerks of the Circuit Court shall be elected by the people, and not appointed by the judge. We provide, on the other hand, in this report, that the clerk of the County Court shall act as clerk of the Circuit Court in the district in which that court is held. If the gentleman's system prevails, it will be very necessary that we should have in each county a judge of probate or surrogate. That will be another office created, because, in the report of the Committee, the county judge fills and discharges the duties of that office. I wish to look at this thing calmly and dispassionately, and to avoid unnecessary delay. If the proposition of the majority of the Committee possesses these advantages over the others, which I think it does, let us adopt it at once. Let us, at all events, confine ourselves to the point at issue, and not branch out into unlimited debate on incidental or extraneous subjects. I regard this as the only difference. We have labored long and arduously to form a judicial system adequate to the present wants of California, combining simplicity and economy, and at the same time calculated to meet the increasing wants of the community.

As

Mr. DIMMICK. I agree with the gentleman last up in some respects; but, for one, I am in favor of the plan reported by the minority of the Committee. far as it goes, it changes nothing in the lower courts. It is proposed as a substitute for the first six sections of the majority report. I consider it accomplishes something which in the majority repcrt is incomplete. That system was formerly adopted by many of the old States. It was the manner in which they first established courts; but it was found insufficient and incompetent to do the business in an effectual and permanent manner. The whole of the States except one, so far as my knowledge extends, have changed from the old system to another; and in one State at least it was the cause of their calling a Convention to alter the Constitution. Let us examine it for a moment. Suppose we have four judges for the trial of cases. As this system provides, three judges of the Supreme Court constitute a Court of Appeals. Now we have four judicial districts in California. Suppose a case is tried by one of those judges in the northern district, and a decision is had in that trial. The case is appealed, and the second judge in the northern district agrees with the first. The two other judges, being the majority reverse, that decision. Suppose I bring another similar case in the Southern district, and I get a decision exactly as that case was decided by each of the northern judges. That case is carried up, and comes before the two judges in the north, who reverse that decision. I have then two decisions reversed. Such a system as that would give rise to endless delay and litigation. There is no stability in it. I therefore felt bound as a member of the Committee to introduce a different system. That is not all; there are many other objectionable features in it; one of which is the union of the two courts with the same judges. It is a system which has been exploded in all the States except one. I now move an amendment to the amendment of the gentleman from Monterey, (Mr. Ord,) to substitute the first section of the minority report in lieu of his amendment.

Mr. SHANNON proposed to amend that section by inserting: "The Legislature may also establish such municipal and other inferior courts as may be deemed necessary."

Mr. DIMMICK. I accept the amendment. The phrase municipal and other inferior courts pleases me. I was about to remark upon the economy of this system. The objection on that point, in regard to the system proposed by the majority, is this: Judges from the north and south are to be convened at the

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 House. I shall be satisfied with the decision of the Convention 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 under 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. BOTTS. 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 discussed.

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 already had this subject in hand. I think the House will be better able to settle it than any committee.

Mr. HALLECK. 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. BOTTS. I tell you what was done in the Convention that formed the Constitution 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. Borrs 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. BOTTS. 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 gentlemen to attempt to trammel us within a narrow limit of debate. in discussing this subject, that I should refer to other parts of the report.

It is necessary,

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 difficulty 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. BOTTS. 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 principle. 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 before the court. What is the case with respect to a District Court? It is very true, sir, that 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 very 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 system 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 system, the cheaper does not weigh a feather in my mind. I have fought this cheaper 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 Monte. rey, (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 today 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 general 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 understand it myself, but should like every member of the House to understand it; and

: