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when the civil courts were open for the transaction of business, and it was thereby attempted to extend the arm of the military tribunals over the entire State for the purpose of haling before them persons who had been guilty of acts committed in breach of the public peace and equity. This particularly was the case in West Virginia two years ago where a very serious condition arose, where there was a conflict between the civil and the military tribunals. I regret very much that I cannot go into the details. They can be found in the case of Nance vs. Brown, 71 W. Va. 519. The matter was of such great importance and moment that in an address before the State Bar Association at its annual meeting in New York, on January 13, 1914, Judge Cullen, shortly after he retired from the chief-judgeship of the Court of Appeals called special attention to the situation and sounded a note of warning against what might become a serious abuse in our public life.

It is very interesting to note that this subject has recently been considered in the English parliament in connection with a bill which was before Parliament in regard to courts martial during the present strenuous times which are prevailing in England, and the suggestion was made with regard to extending the authority of courts martial. I cannot read the entire debate. I can only call attention to the remarks made by three great law lords, Lord Loremburn, Lord Halsbury, and by Lord Bryce as well. Lord Loremburn says: "It is a very dangerous thing to take away right of trial and hand it at your own discretion to military officers, even though the penalty of death may not be inflicted. If it could be shown that the courts of law were not available or that they were not deserving of confidence then I could understand this power being asked for, but I do not think you ought to give this power during the time when the courts are available and are quite as able to do justice as they have been at any period during the last hundred years."

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Lord Halsbury said: "I see no necessity for getting rid of the fabric of personal liberty that has been built up for many generations. Although there are rights which should not necessarily be insisted upon in time of war, it seems to me that this wholesale sweeping away of them is greatly to be deprecated. I hesitate very much to surrender all the liberties and protections which have been built up, as I say, for many generations, just because at this particular time there are some things that you may wish to do more quickly than at any other time."

Lord Bryce said: "Your Lordships will remember the remarkable case of Lord Kilwarden and Wolfe Tone. When Wolfe Tone having been taken prisoner as an enemy in the service of France, was tried by court-martial and was going to be put to death, a writ of habeas corpus was moved in the Court of King's Bench in Ireland, and Lord Kilwarden, the illustrious chief justice at that time, said as they were not in a state of civil war and there was no enemy in the country the ordinary courts of law were in control. He issued a writ immediately for the delivery of the body of Wolfe Tone, and declared that he would sit there until a return was made by the court martial in whose custody Wolfe Tone was. I mention this as a remarkable instance of the sense that was entertained 116 years ago of the great value of this right which a British subject has of being tried by the ordinary courts of the land.

The Supreme Court of the United States had occasion to pass upon this question with regard to the case of Ex parte Milliken, 4 Wallace page 43, a case which was decided immediately after the civil war when feeling ran high. There the court laid down the principle that a citizen not connected with the military service and resident of a State where the courts are open and in the proper exercise of their jurisdiction cannot even under a privilege of a writ of habeas corpus, if suspended, be tried or sentenced otherwise than by the ordinary courts of law. As originally drafted, we merely referred to civilians. Attention was called to the fact, however, that there are people in the military and naval service of the State who are civilians but who at the same time are performing functions in connection with the military arm of the government, and for that reason, in order to cover those cases, we have adopted that amendment.

The next proposition is on page 2. "On a conviction for a crime now punishable by death, the jury may by its verdict impose either the death penalty or life imprisonment, and in the latter event no pardon or commutation shall be granted unless the innocence of the person convicted be established." The committee, with practical unanimity, with one dissenting vote, decided against the abolition of capital punishment, but it believed it was desirable to bring before the Convention the question whether there should be any modification of the rule which now exists. By a bare majority it decided that it would be desirable to permit a jury in a capital case to determine whether the death penalty should be inflicted; or, if not, that then life imprisonment should be the penalty of the crime, and that in such a case there should be no pardon or commutation of sentence except in the case of established innoThere is on the statute books of 27 states in the Union a provision which permits a jury, in a case otherwise capital, to determine whether or not the death penalty should be inflicted or life imprisonment should be the punishment for such an offense.

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I shall not devote any time to an elaboration of this proposition except to lay it before the Convention so that it may deal with it as it deems best.

The next proposition is this: "Imprisonment in civil actions is forbidden except for contempt of court, on final judgments for a penalty, for fraud, for willful injury to person or property or for domestic servants' wages." Imprisonment for debt in the established sense of the word in cases arising on contract was in large measure abolished in this State by the passage of what is known as the Stillwell act in 1831. It is interesting to know that one of the great men in your history who was most instrumental in the passage of that act was Thurlow Weed. From that time on there has not been in this State imprisonment for debt in the ordinary sense, but there are, nevertheless, a great many cases in which people are arrested and imprisoned for what is really a debt. The committee had its attention called to this subject by a number of gentlemen in the Convention Judge Brenner, Mr. Buxbaum, and Mr. Latson, among others - who proposed in various forms to abolish imprisonment for debt. It also had the matter presented to them by Mr. Francis Lynde Stetson, representing the State Bar Association, which has had this matter under consideration for the last ten years. The subject was first brought to its attention by Jidge Hughes in an address before the Bar Association in 1905. In a most admirable article which analyzed our law upon the subject, the various statutes which pertain to it, he gave good rea

sons why there should at least be a relaxation of the strict rule which was still in force.

The committee decided that there should be no imprisonment for debt by n.An process, that is, by an order of arrest before judgment; that there sho, ld be a hearing and a determination of the case on the merits before there might be imprisonment in any case. It would be a great injustice, and many such cases of injustice have occurred where people have been arrested for the purpose of extorting from them money, and when the case was finally tried the plaintiff either did not appear or was unsuccessful. Our first principle, therefore, is that there must be no arrest except for contempt of court which necessarily speaks for itself, because it is necessary to maintain that right, in order to maintain the jurisdiction of the court and its powers; or on final judgment for certain designated cases. There are cases of action for a penalty; those are cases which are tried in the name of the people for the purpose of enforcing an obligation created by statute and those suits are resorted to in many instances because it is difficult to get a jury to consider cases of misdemeanors seriously but they will consider seriously actions for penalties, and the policy will therefore be enforced. Cases of fraud; that speaks for itself. Cases of willful injury to persons or property; that rule is also clear and reasonable. Then we added "or for domestic servants' wages" in order to carry out a provision which has been on our statute books for many years, especially in the city of New York, where it has been found that there has been much suffering occasioned to servants by the failure of their employers to pay them, and it has been believed that that case should still be recognized. That was added at the instance of Judge Olcott, who is not here to-day, but who was very urgent and eloquent in the enforcement of that fact.

The next amendment is in Section 6. The first change is merely formal, in order that the section will not be as misleading as it now is. I will not dwell upon that, but will go to the part of the section which begins on line 16 and ends in the middle of line 21 on page 2. Having first provided that no person shall be held to answer for a capital or other infamous crime unless on the presentment of an indictment of a jury, it proceeds: "No person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. Any person may, however, in the manner prescribed by law after examination or commitment by a magistrate, waive indictment and trial by jury on a charge of felony punishable by not exceeding five years' imprisonment, all subsequent proceedings being had by information before a superior court of criminal jurisdiction or a judge or justice thereof."

This clause, as well as the one in regard to imprisonment for debt, was considered by the Judiciary Committee in conjunction with the Committee on Bill of Rights and both committees were in favor of these measures.

Now, to explain this clause. It was brought to the attention of the committee that in many, many cases men are arrested on a charge which is a charge of felony. Wherever there is such a charge, it is necessary to find an indictment and the prisoner has a right to trial by jury, but sometimes the grand juries do not sit for months after the man has been arrested, and sometimes the defendant is perfectly willing to have his case tried at once without the formality of an indictment or without a jury.

It is, therefore, in the interest of speedy justice that these cases, which are cases of minor felony, shall be promptly disposed of, and we have provided, therefore, that in such cases where the prisoner has been committed by a magistrate, or has had an examination, that he may waive indictment, and he may waive trial by jury, but in such cases all subsequent proceedings are to be had, not before a magistrate, but before a superior court of criminal jurisdiction, or the judge or justice of such court.

Our attention was called to this proposal by Magistrate Noonan of Buffalo, and by a Board of Magistrates, who had given this matter much consideration, and our attention was called to the fact that in Canada, where indictment and right of trial by jury exist in the same sense as they exist here, that in 90 per cent of the cases there is this waiver of indictment and waiver of trial by jury. And it has worked to the satisfaction of all concerned, that there is speedy justice, satisfactory justice, and men who would otherwise languish in prison for months and months before they could have their cases come up for a hearing are either discharged or sent away on their own recognizance, or let out on probation, or sent to reformatories, are thus saved from the delays and unpleasantness incident to the proceedings which now prevail.

Our attention was called to a case of a young man in Wyoming county, who was arrested and charged with forging a check for three dollars, and who had to wait five months before a grand jury met after his arrest, and that case could have been easily disposed of under such a provision as we have indicated, and every lawyer who has had the experience knows how desirable it is, how much it would aid in the administration of justice if such a provision as we suggest were adopted. The next provision is to be found in lines 23 and 24 and provide that: "In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil action, and shall have the right to at least one appeal ".

Now, ordinarily, a man charged with a crime has a right of appeal, but the difficulty is that in minor courts, magistrates' courts, there is no appeal as a matter of right. It is necessary to have the appeal allowed, and it is in those cases, sometimes, that the greatest injustice is done; where the rules of law are more apt to be overlooked and slighted, where the man, the small man, may be unable to give expression to his defense or to present his case in the proper manner; and it is felt that in such a case, or in any case, there shall be a right to at least one appeal in a criminal case.

That amendment was proposed by Mr. Harawitz and the committee was very much in favor of it.

And then we have also added on line 2, page 3, the provision that, after providing that no person shall be deprived of life, liberty or property without due process of law - we have added the words which are found in the Fourteenth Amendment of the Federal Constitution and in other Constitutions of the States of the Union, nor be denied the equal protection of the laws".

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It has been felt that it was desirable to make our Constitution in this regard uniform with the Constitution of the United States. The next amendment is on page 3, lines 4, 5 and 6.

Mr. M. Saxe - Mr. Chairman, will the gentleman yield for a question? Mr. Marshall - I prefer not to now.

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After providing that nor shall private property be taken for public use without just compensation it is provided "property to the extent damaged by change of grade or the building or maintenance of a permanent structure in, over, or under an abutting highway shall be deemed to be taken ".

In many Constitutions of the States of the Union, the provision of the fundamental law is that "Private property shall not be taken, or injured, or damaged in connection with public use without just compensation". Our Constitution simply uses the word "taken", and that has been held to mean a physical taking.

However, it has been found that a large number of cases arise where more serious damage is done by injury to property, where there is no actual taking, than where there is actual taking.

For instance, there are changes of grade upon streets which have been improved and where the title to the street is in the municipality and not in the adjoining owners. None of his property is, therefore, taken, and he therefore, under the present law, cannot get any damages.

In the city of New York a few years ago there was constructed a viaduct that practically filled up the street; it was the subject of consideration in the Court of Appeals in the case of Sauer against the City of New York, and which afterwards went into the Supreme Court of the United States; where, by a divided court, it was held that no remedy could be had in such instances, and this language is intended by a very carefully framed phraseology, to permit the owner of the property thus damaged by the change of grade or the building and maintenance of a permanent structure in, over or under an abutting highway, to recover as his property shall be deemed to be taken. It is the owner of land whose land abuts upon that highway who can be injured, and, therefore, the classification is necessarily circumscribed.

I might say that when this question was before the Committee, Mr. Chairman, Mr. Jerome J. Squires, representing the corporation counsel of New York city, was before the Committee and he admitted that this was a proper case for constitutional provision..

The next change proposed is to be found on page 3, Section 7, beginning with line 9. That provides, that section, the old part of the section, relates to the manner in which compensation is to be ascertained when private property is taken for public use, and under the present statute, the present Constitution, it is an ascertainment by the Supreme Court with or without a jury, but not with a referee, or by any less than three commissioners appointed by a court of record, as shall be prescribed by law. It has been found that great abuses have arisen, especially in the First and Second Judicial Department, in respect to the proceedings before the three commissioners.

If I had the time I think I could harrow your souls with the recital of the gross wrongs which have been perpetrated in connection with these commissionerships. We have had called to our attention cases in which proceedings have been continued before such commissioners for ten years, during all of which time the owner of property has been kept out of his own; his property has been taken into possession by the public authorities; his house has been razed to the ground; his payment is postponed until the proceedings are terminated. The expenses of these proceedings are terrific,

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