Slike strani

Mr. Botrs rene

newed his amendment. Mr. Price moved to strike out the latter clause--"except by the judgment of his peers.”

Mr. Ord was not quite satisfied that the meaning of the word franchise was thoroughly understood. It seemed to him that the latter part of the clause covered the whole ground. The word " disfranchised" might be stricken out altogether, leaving the other portion of the section to stand. He therefore moved the follow. ing:

3. No inhabitant of this State shall be deprived of his rights or privileges, unless by the law of the land or the judgment of his peers.

Mr. Jones expressed surprise at one argument urged in favor of this section ; that the original citizens of this country require to be told that they are entitled to the rights of citizenship. He believed it was no more necessary to tell them that than it was to tell him. It might be a very charitable concession to award to them in a bill of rights the privileges of citizenship; but he would remind gentlemen that these privileges were already guarantied to them by the treaty of peace and by the Constitution of the United States. It was unnecessary to patent their rights by a declaration of this kind.

The question was then taken on the amendment of Mr. ORD, and it was re. jected.

The question was then taken on the amendment of Mr. Borts, and it was re. jected.

The question recurring on the first section as reported by the Committee,
On motion of Mr. Gwix, it was stricken out.

The Committee then rose, reported progress, and asked leave to sit again. Report accepted and leave granted.

Mr. Shannon, from the Committee on Rules of the House, submitted a written report, which, on motion of Mr. GILBERT, was laid on the table, subject to call on Monday morning at 10 o'clock.

Mr. Borts desired to draw the attention of the House to a state of things that existed with regard to the Secretaries. They were up until twelve o'clock every night, preparing manuscript copies of the reports for the House. There was no printing press. This was a burden that ought not to fall upon the shoulders of ihese gentlemen. He therefore moved the following resolution :

Resolved, That when copies of reports are ordered by this House, that the Secretary shall be authorized to contract for the same, making an immediate report of the terms of the contract to the President of the Convention for his approval.

The resolution was adopted.
On motion of Mr. Gwin, the House then took a recess till 3 o'clock.

AFTERNOON SESSION, 3 o'CLOCK, P. M. The Convention met pursuant to adjournment.

The House then resolved itself into Committee of the Whole on the special order of the day.

The question came up on the second section of the report of the Committee, and it was adopted, viz:

3. The right of trial by jury shall be secured to all, and remain inviolate forever. But a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law.

Mr. Borts thought this the place in which Virginia might appear most appropriately. One of the most eloquent and beautiful clauses in the Constitution of Virginia, was the following, in the bill of rights. He proposed it as a substitute for the third section reported by the Committee :

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are

equally entitled to the free exercise of religion, according to the dictates of conscience ; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.

Mr. Halleck remarked that this left out a very important provision contained in the article from the Constitution of New York, in regard to witnesses appear. ing in court.

Mr. Norton was decidedly opposed to the amendment. He could see ob. jection to the section as reported by the Committee. It is plain and explicit. It not only guarantees to every man his rights in matters of religion, but protects the community from any violation of the peace, and from all acts of licentiousness calculated to impair the well-being of society, or infringe upon the dignity of the State.

Mr. Borts remarked, that under the clause reported by the Committee, a de. claration might be made that the Roman Catholic religion is inconsistent with the safety of the State. He wanted to prohibit the Legislature from making such a declaration. He wanted a bill of rights to declare, what the bill of rights of Virginia does, in the most appropriate and beautiful language-the right of man to worship in his own way. The one does it—the other does not.

Mr. SHERWOOD said that the gentleman from Virginia, (Mr. Botts,) was evi. dently not acquainted with the history of the new sects in the State of New York, or he would see the propriety of the restrictions contained in the section reported by the Committee. There have been sects known there to discard all decency, and admit spiritual wives, where men and women have herded together, without any regard for the established usages of society. It was for this reason that the clause was put in the Constitution of New York. No such thing as an attempt to limit the Roman Catholics to any fixed rules of worship was intended; but it was deemed necessary that society should be protected from the demoralizing influence of fanatical sects, who thought proper to discard all pretentions to decency.

The question was taken on the amendment of Mr. Botts, and it was rejected. The question was then taken on the proposition of the Committee, and it was adopted, as follows:

4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed, in this State, to all mankind ; and no person shall be rendered incompetent to bear witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

The question being on the fourth section reported by the Committee,

Mr. Borts moved to amend it by introducing, after the words "public safety," the words in the opinion of the Legislature," as follows:

The privilege of the writ of habeas corpus, shall not be suspended, unless when in cases of rebellion or invasion, the public safety, IN THE OPINION OF THE LEGISLATURE, may require its suspension.

Mr. McCARVER was opposed to leaving to the Legislature the power to suspend the writ of habeas corpus. It would be very inconvenient, in cases of great emergency, to wait until the Legislature could convene. In most of the States, the sessions are annual, and in some they occur only once in two years. There is not likely to be any abuse of this power. The emergency must be shown. It must be established that the public safety requires the suspension. No executive officer would undertake to exercise the power, unless compelled to do so by the necessity of the case.

Mr. Norton was clearly of opinion that the proposed amendment was no im. provement upon the original section. The only way the writ of habeas corpus can be suspended, is by the Executive of the State. He is the only person who can declare the country under martial law; and this power of suspending the writ is given to him for obvious reasons. It would be impossible, in many cases, for the Legislature to be convened at a proper time. It is only in cases of invasion, or


any sudden emergency, involving the public safety, that the Executive officer is called upon to exercise this power.

Mr. Borts felt that it was a very idle business to attempt to amend the report of this mammoth Committee. He was aware that a majority of those present were always ready to support it. Nevertheless, he begged that gentlemen would consider for a moment what they were doing. Did they know what it was to suspend the writ of habeas corpus ?—to declare martial law, and leave the power in the hands of a single individual ? It is nothing less than to make a Dictator of that indi. vidual. He can at his will and pleasure arrest citizens of the State. It is the bulwark of the British Government. You put every man at the will of the Execu. tive. You disfranchise every man. A few moments ago, you declared every man to be free, and yet, now, at the pleasure of a single individual, he can be deprived of his liberty. This is worse than a monarchy. If an invasion happens, you are that moment a slave, under an absolute monarchy. Is it the desire of gentlemen to place their constituents in this position ?

Mr. Gwin read from the Constitution of the United States the following clause: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Mr. SHANNON thought the gentleman's principles (Mr. Botts') beautiful enough in theory, but he was afraid they would be found rather inconvenient in practice. Instances have occurred where the suspension of the writ of habeas corpus has been actually necessary—as in the case of General Jackson. Circumstances sometimes occur to require the exercise of this power, where nothing but the most extreme emergency would justify it. Above all, it is a provision in the Con. stitution of the United States.

Mr. WoZENCRAFT conceived that the question was not as to the necessity of this power, but as to the propriety of placing it in the hands of the Executive. He preferred giving it to the Legislature, as less liable to abuse it.

Mr. Oro had very serious objections to the section reported by the Committee, and moved the following amendment, which was accepted by Mr. Botts:

The privilege of the writ of habeas corpus shall not be suspended, except in such cases and in such manner as the law shall provide ; and only then in cases of actual rebellion, invasion, or when the public safety may require it.

Mr. DIMMICK considered the last amendment quite as objectionable as the first. He was in favor of fixing this matter definitely in the Constitution, and not leav. ing it to the Legislature. A very serious objection, is the fact that the Legisla. ture cannot provide for emergencies which it knows nothing about. How can it anticipate under what circumstances the public safety may be in danger ? In cases of rebellion or invasion, it would be impossible for the Legislature to be. come acquainted with the facts, and provide proper measures, in time to meet the difficulty. The Executive, from his position, has a better opportunity of acquiring this knowledge in advance, and without waiting for the action of the Legislature, he has power under this provision to take such immediate measures as the public safety may require.

Mr. Tefft urged the necessity of proceeding cautiously in this matter. It was one of incalculable importance, involving the best interests of the people. Were gentlemen willing to strike out upon this new tack, and leave this sacred writ in the hands of every new Legislature that might think proper to alter it. He ap. pealed to their good judgment to let it stand as it stands in the Constitutions of twenty-nine States of the Union.

Mr. Borts remarked that, while he was represented as the enemy of this sa. cred writ, he went further than its dearest friends. They were willing that it should be suspended at the pleasure of a single individual; he was unwilling that it should be suspended at all. He would go for prohibiting any power from suspending it—either the Executive or the Legislature ; but if such a provision was

to be incorporated in the Constitution, he desired to have it in the least objectionable form.

The question was then taken on the amendment, and it was rejected.
The fourth section, as reported by the Committee, was then adopted.
The question being on the fifth section of the report,

Mr. McCarver moved to strike it out. He wanted no legislative enactments in a bill of rights.

The motion to strike out was decided in the negative, and the section was adopted without debate.

The sixth section was then read, and also adopted without debate.
The 7th section, reported by the Committee, being under consideration, viz :

When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to benefitted.

Mr. Ord said he considered such a section entirely out of place in the Consti. tution. It should be upon the statute books. He therefore moved to strike it out and substitute the following:

The power of suspending laws, or the execution of the laws, ought never to be exercised, but by the Legislature, or by authority derived from it, to be exercised in such cases as this Constitution or the Legislature may provide for.

Mr. Jones wished a division of the question on the motion to strike out, and the proposed substitute. He was opposed to the section reported by the Committee. The subject of private roads comes peculiarly within the province of the Legisla. ture. The pages of the Constitution should not be encumbered with regulations in regard to local improvements. It is a subject belonging to the statute books.

Mr. SHANNON was also opposed to interfering with the regulation of private roads.

Mr. Halleck stated that the object of this section was to carry out that of the preceeding section. The two are intimately connected. “ Nor shall private property be taken for public use, without just compensation.” There are cases, such as those enumerated, which it was thought necessary to provide for. He need not tell gentlemen of the abuse of the legislative power in New York. This very article resulted from it. It was there determined in Convention that the abuse of power on this subject by the Legislature, was such as to require this restraint. The section, as reported, may not be well worded ; but there seems to be an ob. vious necessity for some provision of this kind.

Mr. Gwin was of opinion that the section should be stricken out.

Mr. Borts. Is this in the Constitution of New York? If so, I shall vote for it. I have a very great desire to be in a majority, for the novelty of the thing. I confess, however, that I can seen no connexion between a McAdamised road and a bill of rights.

The question being taken on the first clause of Mr. Ord's proposed amendment, it was decided in the affirmative, and the section ordered to be stricken out.

The question then recurring on the second clause of Mr. Ord's amendment, to insert as above, Mr. Ord withdrew the same.

The question was then taken on the following section, and it was adopted, viz :

8. Every citizen may freely speak, write, and publish bis sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact.

The ninth section, as reported by the Committee then came up, viz :

No law shall be passed abridging the right of the people peaceably to assemble and to petition the government, or any department thereof; nor shall any divorce bé granted, otherwise than by due judicial proceedings, nor shall any lottery hereafter be authorized, or any sale of lottery tickets be allowed within this State.

Mr. Shannon moved to strike out all after the word "thereof." He did not approve of mixing up in a bill of rights, lottery tickets, divorces, and the right of the people to peaceably assemble and petition the Government. He objected to the theory of creating a bill of rights to legislate on the future Government of this State. California is yet a Territory. While taking the first step in the first movement to form the first fundamental law of the new State, it would be improper to insert legislative enactments for her government, five, ten, or twenty years hence. He proposed the following (being the 20th section of the bill of rights of Iowa) as a substitute for the entire section :

The people have the right freely to assemble together to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.

Mr. Borts suggested, instead of petitioning for the redress of grievances, that the people have a right to demand it. The bill of rights has already declared that all power is inherent in the people. Shall the people petition their own ser. vants and public trustees? It is high time to discard the phraseology which belongs to the old system of petitioning a superior power. The same power that enables the people to govern themselves, surely gives them a right to remedy their grievances.

Mr. Ord moved to amend the amendment by inserting instead thereof, the fol. lowing as a substitute therefor :

The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.

Mr. ORD subsequently withdrew his amendment.

Mr. Jones moved 10 amend the amendment of Mr. Shannon, by substituting therefor the 20th section of the bill of rights of the Constitution of the State of Iowa, in the words following:

The people shall have the right freely to assemble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances.

Mr. Jones' amendment to the amendment of Mr. Shannon was agreed to, and as thus amended, the substitute for the original section was then adopted.

On motion of Mr. Gwin, the Committee rose, reported progress, and obtained leave to sit again.

On motion, the House then adjourned.

The Convention met pursuant to adjournment. Prayer by Rev. Senor Antonio

Journal of yesterday was read and approved.

On motion, the Report of the Select Committee on “Rules and Orders for the government of the Convention,” was taken up and read.

Mr. Gwin moved to strike out the 30th rule, and to substitute therefor the 127th rule of the House of Representatives of the United States, as follows :

No standing rule or order of the House shall be rescinded or changed without one day's notice being given of the motion therefor. Nor shall any rule be suspended, except by a vote of at least two-thirds of the members present. Nor shall the order of business, as established by the House, be postponed or changed, except by a vote of at| east two thirds of the members present.

The question being taken, the motion was decided in the affirmative.
The report of the Committee, thus amended, was then adopted.
Mr. MOORE submitted the following, which was adopted :

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