[WEDNESDAY,

rescind the order and extend the time. That is the short way. It only involves a change of order by the Committee, and that is an undoubted right which the Committee has, under the rule which the Convention has adopted.

Mr. DORSEY. I hope that this last clause of the proposition will be retained in its present form. The intention of the Committee was to limit the debate, and this is doing it in a manner as little objectionable as can possibly be presented to the Convention. It proposes that the majority of the Convention, or Committee of the Whole, may fix an hour at which all debates shall close, after which the person making the report may speak one hour, as before provided for, and all amendments then pending, or proposed thereafter, shall be voted upon without debate. The gentleman from Hamilton [Mr. HOADLY] seems to think that some important amendment may be proposed, even afterwards, which would demand debate. But it is not very likely that if the proposition has been thoroughly considered as a whole, and after that the proposition has been gone over, section by section, that any very important amendment will be sprung upon the Convention; but if so important a proposition should come up, it is competent for the Convention, by a vote of two-thirds, to suspend the rule, and allow it to be considered. I would much rather, in a case of that kind, trust to the action of twothirds than to have a majority of the Convention allowed to continue debate.

Mr. HOADLY. Will the Delegate from Miami [Mr. DORSEY], allow me to ask whether if the Convention happen to be in Committee of the Whole at that time, he does not know it would have to rise in order to have the two-thirds vote taken?

Mr. DORSEY. Yes; that is so; but it does not seem to me that would make any difference, because if not considered in Committee of the Whole, when the proposition comes up before the Convention, the amendment can be, if necessary, acted upon and the Rule suspended by a two-thirds vote, and then any amendment that seems important can be acted upon. Therefore, I hope the proposition as now printed will be accepted by the Convention.

Mr. BARNET. I desire to say a word upon this subject. There is an objection which has been raised here by the gentleman from Hamilton [Mr. HERRON.] It is that we may arrive at that point when an amendment is offered under this rule that we shall not debate it. He thinks, sir, that that is a great hardship. Now, sir, have we not that rule here in the fact that the previous question may be called for and sustained for the very purpose of terminating debate? So that the gentleman will see, and this Convention will see, that under that rule which we have already adopted, and which all deliberative bodies have adopted, we can put an end

The question being on the motion to insert the words, "unless otherwise ordered by the Convention or Committee of the Whole," Said motion was not agreed to.

The PRESIDENT. The question is now upon striking out the last paragraph of the Rule, as reported.

Mr. ALEXANDER. A single word upon that subject. I think we are all agreed that it is necessary, by common consent or by rule, to properly limit discussion; and I think it is especially desirable that all discussion had upon any subject shall be germain and to the point before the Convention or Committee of the Whole. But while that is true, and while I most heartily endorse and concur in the first, second, third and fourth paragraphs of this report, I cannot say that I concur in the last and concluding one. And it is for this reason: our experience as members of this Convention, and those gentlemen who have been members of parliamentary bodies, members of Congress and the Legislature of the State of Ohio, full well know that it often occurs that the very soul of a proposition is injected into it by way of an amendment, and he who had a particular proposition that he desired to have adopted without general discussion, without thorough analyzation, might well introduce that amendment after all discussion had ceased. For my part, I am unwilling that anything shall be adopted to be submitted to the people of Ohio unless members have at least an opportunity of giving their views upon the subject, be the time ever so short. I could recount to the gentlemen of this Convention now a number of instances wherein questions were pending before it and I had supposed my mind fully made up, when, by a very few remarks explaining the force and effects of some collateral circumstances, my mind was entirely changed, and I am assured there are other gentlemen of the Convention that have had the same experience. For that reason, I cannot consent that important amendments, which may change the entire force and effect of propositions to which the Convention has agreed or is about to agree, shall have the force of a constitutional provision so far as this Convention can make it so, without any discussion whatever. I am willing that the time should be limited, and think it right that it should be limited, but to say that no member should open his mouth on such amendments, I do not think right.

But, it is said that two-thirds of the members of the Convention have the power to open the question, and extend the time. But in reply to that I remark, that in the first place, the subject cannot be hinted at under that rule, because that would be to discuss it. The party must simply ask to open the question, when the delegates present do not know for what purpose he may desire this done. Therefore, I think the motion of the gentleman from Hamilton, [Mr. HERRON], ought to prevail. Otherwise than that, I cannot vote for the adoption of the rule.

And it has been suggested that amendments may be offered, notwithstanding the previous question has been called. According to the

[THURSDAY,

President Constitutional Convention

DEAR SIR: On behalf of the Board of Managers of the Public Library of Cincinnati, I take pleasure in extending, through you, to the members of the Constitutional Convention, the privileges of the Public Library. Very respectfully, 'WILLIAM STRUNK,

President of the Board of Managers. N. B.-Tickets will be prepared and furnished to the members of the Convention, within the next week.

COMMITTEE OF THE WHOLE.

On motion of Mr. COWEN,

The Convention resolved itself into Committee of the Whole upon the order of the day, being Proposition No. 185-the Report from the Committee on the Judicial Department-Mr. HITCHCOCK in the Chair.

The CHAIRMAN. When the Committee rose, it had under consideration Proposition No. 185. The Committee had passed through the consideration of all the sections of that Proposition, except the sixth, seventh, eighth and ninth. The Committee had then been considering section eight, with an amendment proposed to that section by the gentleman from Trumbull [Mr. TUTTLE]; but on motion of the gentleman from Cuyahoga [Mr. GRISWOLD], to accommodate the gentleman from Champaign [Mr. YOUNG], the Committee passed from the consideration of section eight to the consideration of section seven, the question in the consideration of that section being upon the amendment of the gentleman from Allen, [Mr. CUNNINGHAM, to amend by striking out all after the word "and," in line two, and inserting "shall have appellate jurisdiction under such regulations as may be provided by law, over courts of common pleas and superior courts, in all civil cases in which said courts have original jurisdiction, and in said courts either party may demand a trial by jury in all cases triable by jury in the inferior courts."

The question being upon agreeing to this

THURSDAY, DECEMBER 4, 1873.

amendment, a motion was made to perfect the language sought to be stricken out by adding to the end of the section these words: and the General Assembly shall provide for second trials by jury, except in such counties as may be designated by law."

The question now before the Committee is upon agreeing to the motion of the gentleman from Logan [Mr. WEST], to substitute for the amendment of the gentleman from Allen [Mr. CUNNINGHAM],"such appellate jurisdiction to re-examine issues of law or of fact, or both, in one or more counties, as may be provided by law."

Is the Convention ready for the question? Mr. POWELL. Will the Chair be so good as to read the section proposed to be amended, and then read it as it will read as amended by the gentleman from Logan [Mr. WEST]?

The CHAIRMAN. "SECTION 7. The circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law."

The gentleman from Stark [Mr. PEASE], moves to amend by adding at the end of the section, "And the General Assembly shall provide for second trials upon appeals in civil cases, except in such county or counties as may be designated by law." So that if so amended, it will read:

with the supreme court, and such appellate jurisdiction as may be provided by law, and the General Assembly shall provide for second trials upon appeals in civil cases, except in such county or counties as may be designated by law."

"The circuit court shall have like original jurisdiction

Should the amendment of the gentleman from Logan [Mr. WEST], be agreed to, and the section be agreed to in that form, it would read:

"The circuit court shall have like jurisdiction with the supreme court, and such appellate jurisdiction to re-examine issues of law, or of fact, or of both, in one or more counties, as may be provided by law."

The question is on agreeing to the proposed amendment, as last read. Is the Committee ready for the question?

The vote was taken, and the amendment of the gentleman from Logan [Mr. WEST], was not agreed to.

The CHAIRMAN. The question now is upon agreeing to the amendment of the gentleman from Stark [Mr. PEASE].

Mr. HOADLY. I cannot help feeling that a mistake was made by more than one gentleman on the floor, in voting, when the last vote was taken. Therefore, I desire to call attention, before this vote is taken, to the precise form in which the proposition stands. object of this proposition is, by way of a com

The

promise, to reconcile those who desire to avoid any trial by jury in the circuit court-of whom I am one-and those who insist that there should be in the circuit court a repetition of trial by jury, in all cases, at the will of the party giving bond. Now, after an exhaustive discussion last summer, in which it was found we were largely divided in opinion, a proposition was made by the delegate from Stark [Mr. PEASE-Who is a friend of trial by jury in the circuit court to compromise with us by proposing a different practice in different counties, so that in the county of Hamilton, Cuyahoga, Lucas, Montgomery, Franklin, or other counties, where the business is such that, if jury trials were permitted on appeal, the effect would be to load down the court with jury trials, and have the effect simply to destroy the circuit court at its first term, we may escape them. That proposition was to empower the Legislature, if it saw fit to exercise it, to grant the right of trial by jury in some counties, and in others to deny it. For one, am free to say, that I feel that if the right of second trial by jury is given in the circuit court, it will be a boon to the unsuccessful litigant, simply because he is able to give bond. And to attempt to restore the old system of trial by jury on appeal, would be to deny to the poor but successful litigant that right of trial by jury, and to justice within a reasonable time, which he ought to have. I believe it would do this, by loading the circuit court down with business to such an extent as that it will be absolutely impracticable, with three or four or five circuit courts, to do the business at all in this county, and they sitting at the same time. For that reason, I made an earnest appeal, during the summer session, to delegates not to "enforce," as the delegate from Logan [Mr. WEST] called it, "the constitutional right to two trials by jury;" but I am perfectly willing to meet my friend from Allen [Mr. CUNNINGHAM] upon such a compromise as that proposed by the gentleman from Stark [Mr. PEASE]. I am perfectly willing, if the profession and the people in Allen, or in Delaware-where it has found friends-or in other counties, desire two trials as a right secured to them by the Constitution, that they shall have it. And I am willing they shall have it in the language they choose to put it, but I beg them for the sake of the success of this Constitution not to enforce upon the county of Hamilton, where there are four thousand cases pending upon the common pleas docket, a second compulsory trial in the circuit court. Our district court sits three months, and though not a single case can be taken from the superior court, it is now one year behind the docket without jury trials; and if without jury trials, our district court is a year behind, in what condition will it be with a full right of trial by jury in all cases that would be carried to it by those who are able to give bond and have been defeated in the common pleas? I was informed by Judge THURMAN, that when the right of appeal was destroyed by the Legislature in 1854, 5 or '6-I have forgotten the year-there were eight hundred cases pending in the county of Hamilton, and the docket was years behind. Now, I beg my friends not to withdraw the olive branch which my friend from Stark [Mr.

PEASE] tendered, and not to compel us to have such practice in this and other large counties as we cannot live under.

Mr. BARNET. I wish to ask the gentleman from Hamilton [Mr. HOADLY] why we should distinguish between the citizens of different counties upon a question of so much importance as that of trial by jury, one of the dearest rights which every man has at stake? Let us have it all one way or the other.

Mr. HOADLY. I answer that for nineteen years we have had a practice in this county, differing from that of any other county in the State. In two-thirds of the commercial business that has been done here for nearly twenty years, there has been no second trial or appeal whatever; and I have yet to hear the first word from the people or profession against the act creating the superior court of Cincinnati, and denying the right to second trial by giving bond. That is our experience here.

Mr. BARNET. Once more: if it is good for the people of Hamilton county, is it not good for every county in the State?

Mr. HOADLY. I believe it would be better not to have these second trials at all; yet, though so believing, I am unwilling to impose my views upon those who feel so earnestly and so differently. I have that respect for the venerable delegate from Delaware [Mr. PowELL] and for the delegate from Stark [Mr. PEASE] and those who are associated with them in fighting this battle on the other side, that I am willing to meet them fully half way. I do not think there is any question of principle about it. It is a question of facility for doing the judicial business of the State in different portions of the State.

Probate courts throughout the State have not the same jurisdiction in all the counties. This State of Ohio is too big to be made into a little narrow bed, in which you may mold all in the same shape and of the same size. The probate court in some counties has criminal jurisdiction, while in this county it has not criminal jurisdiction. So I might go through the statutes, pointing out wherein we never had a uniformity of practice.

Mr. CUNNINGHAM. So far as I am indi

The

vidually concerned, I am perfectly willing to adjust this amendment to the Constitution to what may be determined to be the need of any part or any locality of the State; and hence, it was Hamilton [Mr. HOADLY] to appeal to those of entirely unnecessary for the gentleman from with appeals; it was unnecessary to appeal to us who insist upon clothing the circuit court us not to withdraw the olive branch. difference, however, is, in the way we read the amendment of the gentleman from Stark [Mr. PEASE]; shall appeals, or the exclusion of appeals, form the exception? The interpretation_given by the gentleman from Hamilton [Mr. HOADLY] to the language of the gentleman from essentially remains just as it is, in so far as this Stark [Mr. PEASE] is, that the Constitution matter of appeals is concerned. We desire that, except in exceptional cases, made by the Legisbe obligatory upon the Legislature to provide lature, the rule shall be general, and that it shall for appeals in the circuit court. That is all.

The county of Hamilton, the county of Cuya

hoga, and, perhaps, some other counties, will have, at any time, influence enough in the Legislature to control any matters of this sort. The gentleman from Hamilton [Mr. HOADLY] has a right to speak of the experience of Hamilton county and of the Bar and of the Courts of his county; and when the county of Hamilton, represented as it always is, numerically, by a large delegation and by men of force, they can see that the exception recognized or spoken of shall be incorporated in the law; and all we ask is, that the general rule shall be, that appeals shall be secured by means of a Constitutional provision, and shall not be left to the Legislature.

I think the gentleman from Hamilton [Mr. HOADLY] will agree that this was substantially the understanding last summer, at Columbus, when we laid aside this subject, and we thought we had arrived at a middle ground. We from the country, simply ask that the rule shall be made general; that we should not be put to the necessity of going up to Columbus to seek an exception, for we have not the influence; and no one knows better than the gentleman from Hamilton [Mr. HOADLY] that those large counties have influence and can successfully accomplish what I undertake to say the State in gen

eral cannot.

If the amendment proposed involves this, and makes the rule general, makes it obligatory upon the Legislature to provide for appeals in the circuit courts, with a further provision that exceptions may be made for any county or district in the State, as the Legislature may see fit, for one, I am perfectly content and acquiesce. I have no pride of opinion about this matter, at all; I have no pride of opinion as to anything I said or did last summer.

Mr. HOADLY. Here or elsewhere? [Laughter.]

Mr. CUNNINGHAM. Well, I confine this to my action in this Convention. I have a good deal of pride as to some other things that occurred-on the 30th of July, for example. I stand by the colors, although I did give up an imaginary sword. [Laughter.]

I came prepared, Mr. Chairman, to yield to whatever the Convention determines upon this matter. That is what I mean by saying I have no pride of opinion on this matter. We ask, in justice to the State generally, that the rule shall be made obligatory upon the Legislature; and then, when the high interests of Hamilton or Cuyahoga county are represented in the Legislature, they will have no difficulty in arranging for the exceptions to the rule.

Mr. LAYTON. I for one, sir, knew just what I was voting upon, and I presume the other thirty-six gentlemen of this Convention, who voted against this amendment, knew equally well, with the gentleman from Hamilton, [Mr. HOADLY], what they were voting for. I was not aware, sir, that this Constitutional Convention had assembled for the purpose of legislating or putting provisions in the Constitution for any particular portions of the State, as against the remainder of the State. I was not aware that we were here for the purpose of discriminating in making this, the fundamental law of the State, for or against any particular portions of the State. I can well see

[THURSDAY,

why Brother HOADLY does not desire that this appellate jurisdiction should be given to the circuit court. It will do for him and other attorneys who have as extensive practice as he, to say they are opposed to second trial, and, Í believe, the gentleman has gone so far as to say that he is opposed to jury trials altogether. Mr. HOADLY. Not at all: I beg to correct the gentleman, if he will allow me: not at all. I appeal to the records of this Convention to show, Mr. Chairman, that I opposed this proposition in the original debate, because I regard it as an attack upon the right of trial by jury. What can, by any possibility, be more in the nature of an attack upon the sanctity of a verdict, or the value of the privilege of trial by jury, than to propose that any unsuccessful litigant may, if able to give bond, set aside a verdict at his caprice. Establish the principle that a bond is of more value than a verdict, and what becomes of the boasted right of trial by jury? On the contrary, I oppose the proposition, because I do believe in trial by jury, and do not wish it trifled away.

Mr. LAYTON. The explanation I am happy to hear. I understood by his remarks at Columbus, that he did not care if trial by jury was abolished. But, sir, I am in favor of appellate jurisdiction in the circuit courts, if second trials are to be abolished in the court of common pleas, as far as may be done,-as it seems to be the general feeling among the members of the bar, and others, who have paid attention to this matter, that second trials by jury are a failure. But, in cases in which judges have not decided according to law in a court below, it certainly is the right of the people of Ohio to demand a second trial.

We are not here to amend the Constitution so as to be alone acceptable to the members of the bar we are here to look to the best interests of the people of Ohio; and I for one, protest, sir, against taking away a single right that one lawyer of Ohio may be accommodated. I, therefore, shall vote against any amendment that takes away or seeks to prohibit the right of trial by jury in appellate courts.

Mr. GRISWOLD. While I favored, originally, the Report of the Committee on this subject, I am perfectly willing that gentlemen who desire it shall have their second trials in appellate courts. But, as Mr. HOADLY has well shown, in this county it would be utterly subversive of justice to allow it. No one circuit court would do it. Second trials in that court would be impossible; and so it would happen in our county.

I took occasion, during the adjournment of this Convention, to ascertain the time required last year for second trials in our county; and I find, on examination, that in the court of common pleas alone, there were one hundred and five days of actual time occupied in the second trials of jury cases. Now, our district court had a term of thirty days, and, during that time, not half the docket was reached; so it would take, at least, more than one hundred and fifty days' session of the circuit court to do no more business than existed a year ago in our county, and there has been a great increase in the business; and if second trials are allowed, as a matter of course, from the common pleas