want John Smith, whose testimony I cannot
get; he is in New York, and you can only
take his testimony before the court, or send a
commission. You send a commissioner there
and he finds it difficult to find John Smith.
There will be commissions taken Out under
this system as under the other, for you will
always have the right to send abroad. And
under the rules already prescribed in the
code, which can be modified lit any time by
the legislature, when they work hardship,
yon can have all the expedition that the occa-
sion requires.
I know it has always happened, where a
lawyer his lost a cause, he is sure the jury
was corrupt, or stupid, or the judge was
wrong, or something of the kind, and he will
go to the legislature and get a law passed to
apply to his particular case. My colleague
(Mr. Daniel) has met with some hardships,
and lie offers this amendment. My friend
from Howard (Mr. Sands) has met with some
hardships and he thinks this may remedy it
in that divorce case of which lie speaks.
Possibly it might; and then it might operate
injustice in a hundred other cases.
Mr. STIRLING. I agree with my colleague
(Mr. Daniel) as to some of the evils of which
bespeaks. But I would like to know what
this constitutional convention has to do with
this subject? This is a matter regulating the
practice of the courts. And we might as well
go to work till up the constitution with
the whole practice of the courts. And if all
the lawyers would get up here and jaw about
the details we might sit here until kingdom
come.
Mr. DANIEL. The gentleman voted to go
into all the details in regard to the public
schools. I find that whenever it suits mem-
bers to go into) details they always do so;
when it dues not suit then to do so, then
they say it is a matter for the legislature. I
say that we hive the example of New York,
one of the largest States of this Union; and I
suppose they hid as good lawyers in their
convention as ever were ill any convention.
The lawyers there put this ill their constitution
in very short phrase; and I think it is
avery good precedent.
In reference to what has been suggested by
gentlemen in reference to delay, that this
amendment I have offered will cause more
delay than the present practice. Now my
experience has been different in reference to
the trial of causes at law in comparison with
the trial of causes in equity. You generally
get through your case sooner at law than in
equity, for you have ajury there and are as-
signed your time. And I do not see why you
cannot take your testimony, avery point that
is to go up before the court of appeals, before
the judge of the court below, or at the lime
of your trial in equity, just as you do at law.
I know that sometimes in the trial of equity
cases weeks and months are occupied in the |
trial of equity cases; whereas at law a great
number of witnesses are examined in one
day. I do not see any more reason for a long
record in equity than at law. There are a
great many questions and points that lawyers
wo' id waive when they come before, the
court of equity. They would certainly pre-
sume that the court knew something, where-
as they presume that the commissioner
knows nothing. And when these points are
submitted to the court of equity and argued,
they would waive them, and thus they
would nut go up to the court of appeals and
increase the record. There is a section in
this report that you may waive a jury at
common law as well as in equity. And why
should we reverse and alter the whole practice
of the State heretofore, which has always
required all matters of fact to go before a
jury " And yet you think this is an anomaly
and not to be put into the constitution, be-
cause it is properly a matter of legislation.
Mr. STIRLING, if we do not put in the
constitution a provision permitting a question
to he tried without a jury. you cannot do it
at all; fifty thousand legislatures could not
authorize it to be done, because the constitu-
tion guarantees the right of trial by jury;
and you must put such a provision in your
constitution or not have it at all.
Mr. DANIEL. Be that as it may, I think
this will save expense and save delay, and
will give the judge what has always been
considered the very great advantage of seeing
the witnesses and cross-examining them in
his own presence. And I hive no doubt
that very frequently a case would be decided
upon the justice and equity of the case in a dif-
ferent way if the court could see the witnesses
upon the stand, hear them testify, see their
manner, see ahem under the fire of cross-ex-
amination, by which you test not only his
recollection, but his honesty and motives.
LEAVE OF ABSENCE.
Mr DELLINGER asked and obtained leave of
absence until Tuesday of next week.
Mr. RIDGELY asked and obtained leave of
absence for his colleague (Mr. Berry, of
Baltimore county,) on account of indisposi-
tion.
Mr. DAVIS, of Washington, moved that the
convention take a recess.
The question being taken, upon a division
?ayes 30, noes 25?it was agreed to.
And the convention accordingly took a re-
cess.
EVENING SESSION.
The convention reassembled at 8 o'clock,
P. M.
The roll was called, and the following
members answered to their mimes :
Messrs. Goldsborough, President; Abbott,
Annan, Audoun, Belt, Billingsley, Blackis-
ton, Brown, Carter, Crawford, Cunningham, |
