we unfortunately know at this time that it is only the poor, the downtrodden, those who cannot employ the necessary means of defence, that run any risk of punishment for murder in the first degree.

Again, I am opposed to the principle because it tends to harden the community; it tends to make human life less valuable in the estimation of men, to make us careless with respect to human life, and so counteracts itself. Nothing will protect human life so much as for society to say that it shall be sacred against even society itself, sacred against everything but the fiat of the Almighty. I object to it again because of the uncertainty of human testimony. Men have been hanged who were afterwards found to be innocent. I know instances within my own knowledge of men who have been hanged who were afterwards found to be innocent, and could relate them here if there were time. If you stop short of death you can do away with the great wrongs done by the improper conviction of men for horrible crimes, but when you have killed the supposed criminal your remedy is gone.

For these reasons, and for still anotherthat society is supposed to be based upon an implied compact between all the members of it, by which each man gives up something for the sake of getting something, so that if he has no right to give up his life the part of the compact that permits capital punishment is void, and I think that no man has a right to barter away his own life-I am opposed to capital punishment.

The yeas and nays were taken and were as follow, viz:

YEAS.

Messrs. Ainey, Beebe, Brodhead, Broomall, Carter, Darlington, De France, Green, Heverin, Knight, Lilly, Mann, Mantor, Simpson, Stewart and White, David N.

-16.

NAYS.

Messrs. Achenbach, Alricks, Armstrong, Baily, (Perry,) Bailey, (Huntingdon,) Baker, Bannan, Bartholomew, Biddle, Bigler, Black, Chas. A., Black, J. S., Bowman, Boyd, Brown, Buckalew, Bullitt, Calvin, Campbell, Collins, Cronmiller, Curry, Curtin, Cuyler, Dallas, Dodd, Dunning, Elliott, Ewing, Fulton, Funck, Gibson, Gilpin, Guthrie, Harvey, Hay, Hazzard, Hemphill, Horton, Howard, Lamberton, Landis, Lear, MacConnell, MacVeagh, M'Clean, Metzger, Minor, Mott, Niles, Palmer G. W., Palmer, H. W., Patterson D. W., Pughe, Purviance, John N., Purviance, Samuel A., Reed, Andrew, Reynolds, Rooke, Ross, Runk, Russell, Sharpe, Smith, Henry W., Smith, Wm. H., Stanton, Struthers, Temple, Turrell, Van Reed, Walker, Wetherill, J. M., Wetherill, J. Price, Woodward, Worrell and Wright—76.

So the amendment was rejected.

ABSENT.-Messrs. Addicks, Andrews, Baer, Barclay, Bardsley, Carey, Cassidy, Church, Clark, Cochran, Corbett, Corson, Craig, Davis, Edwards, Ellis Fell, Finney, Hall, Hanna, Hunsicker, Kaine, Lawrence, Littleton, Long, M'Camant, M'Culloch, M'Murray, Mitchell, Newlin,

The PRESIDENT pro tem. The question is on the amendment of the delegate from Delaware.

Mr. BROOMAL. I call for the yeas and nays on this question.

Mr. ALRICKS. One word. Will the gentleman accept a modification of his amendment, adding "except murder in the first degree?" I will vote for it if so modified.

The PRESIDENT pro tem. The yeas and nays are called for. Members seconding the call will rise.

Messrs. Biddle, Brown, Bullitt, Carter, Collins, Cuyler, Calvin, Dallas, De France, Horton, Knight, Mantor, Mott, Ross, Russell, Beebe and Brodhead rose to second the call.

ter, Purman, Read, John R., Smith, H. G., Wherry, White, Harry, White, J. W. F. and Meredith, President-41.

The PRESIDENT pro tem. The question recurs on the section.

Mr. SIMPSON. I propose to amend the section, and in offering the amendment I will state to the Convention that the reason I present it is that I believe it will secure more certainty in the punishment of crime than we now have in cases of murder in the first degree. I believe that frequently criminals are permitted to escape on the pretext of insanity or some other side issue, on account of the effect of the verdict. I propose to amend the section by adding to it the following words:

"In trials for homicide the jury may render a verdict of guilty of murder in

I have reason to believe, Mr. President, that if the jury have this power given them, there will be convictions of murder in the first degree where there are now acquittals. Jurors are now desirous, anxious to find some loophole to prevent the taking of human life; and if they could render a verdict of murder in the first degree, and at the same time assign that it should be without capital punishment, there would be more convictions, and it would tend to the prevention of that crime. For that reason I offer the amendment and shall vote for it.

The question being put, the amendment was declared to be rejected.

should be taken from him for any private use or quasi public use without the necessity for such taking being first ascertained by an indifferent tribunal. I do not believe that my property or the property of any other citizen of this Commonwealth should be taken away at the will of any other citizen or of any combination of citizens, whether called a corporation or a partnership.

The Committee on the Declaration of Rights in reporting the article that is now before us reported a provision that was somewhat similar to this but which was stricken out while the article was under consideration in the committee of the whole. Its exact language was to add

out the necessity for such taking being

Mr. SIMPSON. Yes, sir. The PRESIDENT pro tem. The call does not seem to be seconded. The amendment of the gentleman from Philadelphia is not agreed to. The question is on the ninth section.

The section was agreed to.

The tenth section was read as follows: SECTION 10. That no person shall for any indictable offense be proceeded against criminally by information, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger, or by leave of the court for oppression or misdemeanor in office. No person shall for the same offence be twice put in jeopardy of life or limb; nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being first made or secured.

Mr. HAY. I offer the following amendment: Strike out the word "and" in the the seventh line of the section and insert: "Nor by any private corporation or person, without the necessity for such taking being first ascertained in a manner to be prescribed by law, nor."

I have offered this amendment, Mr. President, for the simple reason that I believe that no man's property should be taken away from him for any public use without the consent of his representatives or his own consent, nor without just compensation therefor being first made or se

sition was voted out of the report of the committee, probably for these two reasons: That in the first place it provided that no property should be taken for any public use whatever without the necessity for such taking being first ascertained; which extended to the case of all takings, whether by the State directly, for solely public purposes, such as to afford room for the erection of school buildings, as well as for the taking of property for the building of railroads and for other corporate and business purposes. It also included the provision that the necessity should be ascertained only by a jury. I believe that that provision is an impracticable one in many cases, while most wise and necessary in many others, that it would obstruct the course of public improvements very seriously, as in the case of the building of a railroad. Certainly railroads ought to be built. We ought not to adopt any measures that will unjustly restrict the progress of public improvements; but I believe that the individual citizen has rights which are sacred as well as corporations; and I do not believe, as I said before, that private property should be taken from the citizen at the mere will or whim of a company of men who happen to want it. Certainly there need be no difficulty in providing some just mode in which the necessity for the taking of property can be ascertained. That matter can be very properly provided by the Legislature.

A company propose to build a railroad from one point to another, of say ten or twelve miles in length. Let them have the route of their road first surveyed; let

competent engineers make careful plans of the route to be pursued; let accurate drawings be made of the property which it is proposed to take for so-called public purposes; let those surveys, plans and drawings be submitted to a competent board chosen under the authority of the Legislature or designated by them, or submitted to the legislative body itself if it is deemed necessary; and let it first be approved and confirmed before any private property can be taken. After it is approved and the necessity is properly ascertained for the taking of that property for public use and the building of the road, let the company go on and take it as they now can do, and pay the damages which may be justly required for the property; but until by some means-and I leave the means altogether to the Legislature, for I do not think that this body is competent to devise the particular methods of ascertainment of the necessity of taking private property for public use-but after it has been ascertained, under the authority of the Legislature, that it is necessary that certain private property should be taken for the use of the public, or by corporations which the State has authorized to seize it, then let it be taken, but not before.

I hope, sir, that this amendment or some similar amendment, in its spirit, will be adopted. I only want here to see the principle incorporated into the Constitution of the State that private citizens have some rights that are sacred and secure against the overweening power of corporations. I ask for the yeas and nays on this amendment

The PRESIDENT pro tem. Gentlemen seconding the call for the yeas and nays

will rise.

Messrs. Buckalew, Campbell, Clark, Cuyler, Cochran, Ewing, Dallas, Gilpin, J. N. Purviance, Sharpe and Woodward

rose to second the call.

The PRESIDENT pro tem. The yeas and nays are ordered on the amendment.

Mr. RUSSELL. I hope, Mr. President, that this amendment will be adopted. I am satisfied of my own knowledge that some restraint ought to be placed upon railroad companies in their appropriation of the lands of individuals. In the town in which I reside, the Bedford and Bridgeport railroad company located its road, and the owner of a tract of land there conveyed to them six acres of land for a certain amount of their stock, worth to-day I suppose, if anything at all, about fifteen

cents per share. Soon after this conveyance was made, the railroad company requested the gentleman who had owned this property to give them an adjoining piece. He declined on the ground that he had already given them all that he ought to be asked to give. The president of the company then telegraphed, as I understand, to his superintendent to go there and take the land, and he went there with his engineers and laid off four acres, or very nearly four acres, of the ground and applied it to the use of the railroad company, without the consent of the owner of the land. 1 think there ought to be some restraint upon the power of any company to appropriate the land of individuals in that way. They ought not to be permitted to take the land of private individuals without compensation, because no compensation has been made for this property. They can come into court and swear that the owner of the land is vastly benefited by the land having been taken, by the railroad being made, and he can get no damages for his land.

Mr. CUYLER. Mr. President: In the individual instance alluded to by the gentleman who has just spoken, a bargain must have been made between the owner of the land and the corporation, or the corporation could not have acquired title. It does not, therefore, lie in the mouth of the individual to complain because he received in compensation for his land that which he agreed to take. No power could have compelled him to take the stock of the company in payment for his land except his own free will, and he must have exercised his own free will and given the land and received the stock as full pay

ment.

Again, I have to say to the gentleman, with some knowledge, not of the individual instance to which he alludes, but of the particular corporation of which he speaks, that when he estimates the stock of the Bedford and Bridgeport railroad as not worth fifteen cents a share, he must have derived his knowledge of values from some source very different from that which I have. I believe that stock will be worth at a very early day a hundred cents on the dollar; I have no doubt about it, and I think I understand the subject.

Now, Mr. President, to adopt this amendment is practically to kill any public improvement, because if it is to depend upon the vote of a jury of the neighbors of the individual whose land may be pro

posed to be taken for public uses as to whether the improvement shall be made, nine times out of ten the improvement never will or can be made.

The PRESIDENT pro tem. The Chair is obliged to rule that the discussion now going on is out of order. The yeas and nays have been ordered and must be taken. When the delegate from Bedford rose the Chair supposed he was going to make some explanation. The Clerk will call the yeas and nays.

Mr. RUSSELL. I have only to say in answer to the gentleman from Philadelphia

The PRESIDENT pro tem. The Clerk will call the yeas and nays.

ABSENT.-Messrs. Addicks, Baer, Barclay, Bardsley, Bartholomew, Beebe, Carey, Carter, Cassidy, Church, Corson, Craig, Curry, Dallas, Davis, Ellis, Fell, Fulton, Hall, Hanna, Heverin, Horton, Howard, Hunsicker, Kaine, Lawrence, Littleton, Long, M'Camant, M'Clean, M'Culloch, M'Murray, Metzger, Mitchell, Parsons, Patterson, T. H. B., Patton, Porter, Purman, Read, John R., Rooke, Van, Reed, White, Harry, White, J. W. F. and Meredith, President-45.

The PRESIDENT pro tem. The vote being a tie the amendment is not agreed to. The question recurs on the section.

Mr. STRUTHERS. I move to an end by striking out the words "consent of his

Mr. LILLY.

it cannot be withdrawn.

Mr. RUSSELL. I merely want to say to the gentleman from Philadelphia that he can have the stock at fifty cents on the dollar if he wants it. ["Order." "Order."] The question was taken by yeas and nays with the following result:

YEAS.

Messrs. Achenbach, Alricks, Baily, (Perry,) Baker, Black, J. S., Buckalew, Bullitt, Calvin, Campbell, Cochran, Collins, De France, Dodd, Elliott, Ewing, Finney, Funck, Gibson, Gilpin, Guthrie, Harvey, Hay, Hazzard, Hemphill, Landis, Lilly, MacConnell, Mantor, Mott, Newlin, Purviance, John N., Purviance, Samuel A., Reynolds, Ross, Russell, Simpson, Smith, H. G., Smith, Henry W., Smith, Wm. H., Wetherill, J. M., Wherry, Woodward, Worrell and Wright

-44.

NAYS.

Messrs. Ainey, Andrews, Armstrong, Bailey, (Huntingdon,) Bannan, Biddle, Bigler, Black, Chas. A., Bowman, Boyd, Brodhead, Broomall, Brown, Clark, Corbett, Cronmiller, Curtin, Cuyler, Darlington, Dunning, Edwards, Green, Knight, Lamberton, Lear, MacVeagh, Mann, Minor, Niles, Palmer, G. W., Palmer, H. W., Patterson, D. W., Pughe, Reed, Andrew, Runk, Sharpe, Stanton, Stewart, Struthers, Temple, Turrell, Walker, Wetherill, John Price and White, David N.-44.

mean his representatives in the Legislature who enact laws, it would be better to say at once "authority of law," because consent is made, in the shape of a law. If that is the way the expression of their it is intended to mean his personal repre

sentatives it would be better to say "by his agent or attorney." If it is his personal consent or the consent of his personal representative that is to be given there, these words are unnecessary altogether, because anything may be done by the consent of the parties. The party owning the property may sell it, or transfer it, or give it in any manner he may see proper, or he may authorize his agent to do so.

I presume what is meant by the expression is, his representatives in the Legislature. If the meaning is, his representatives in the Legislature, it would be better to say at once that by authority of law it shall be done. It would then read:

"No person shall for the same offence be twice put in jeopardy of life or limb; nor shall any man's property be taken or applied to public use without authority of law and without just compensation being first made or secured."

I think that would make the section read very much better and it would be more clear and understandable.

Mr. ANDREW REED. I submit to the delegate from Warren that if he would change the word "and," in the seventh line, to "or," it would preserve his meaning.