The Convention met at the appointed hour. Prayer by Rev. R. L. Brooks, member from Upshur. The journal of the previous day was read and approved.
Mr. Battelle, submitted the following proposition, which was ordered laid on the table and printed, and referred to the Committee on Fundamental and General Provisions:
"1. No slave shall be brought into this State for permanent residence, after the adoption of this Constitution.
"2. All children born of slave parents in this State, on and after the fourth day of July, eighteen hundred and sixty-five, shall be free. And the legislature may provide by general laws for the apprenticeship of such children during their minority, and for their subsequent colonization."
Mr. Brown of Kanawha submitted the following as an additional section to the report of the Committee on the Judiciary.
Laid on the table and ordered printed:
"The circuit courts shall, except in cases confided exclusively by this Constitution to some other tribunal, have original and general jurisdiction of all cases at law, where the amount in controversy, exclusive of costs, exceeds twenty dollars, and of all cases in equity, and of all crimes and misdemeanors, and of all controversies concerning the title or bounds of land, the probate of wills, the appointment or qualification of personal representatives, guardians, committees or curators, and concerning mills, mill dams, roads, ways and ferries, and in cases of habeas corpus, mandamus and prohibition, and cases involving freedom, or the constitutionality of a law, or the right of a corporation, or of a county, or of the supervisors thereof, to levy tolls or taxes.
"The circuit courts shall have appellate jurisdiction in all cases, civil and criminal, wherever judgment has been rendered by any inferior court or other tribunal, or by a justice of the peace, except that no appeal, writ of error, or supersedeas shall lie where the judgment is rendered by a justice of the peace, in assumpsit, debt, detinue or trover, and is for less than ten dollars.
"And the said circuit courts shall have jurisdiction of all such other matters as shall be prescribed by law."
THE PRESIDENT. The unfinished business would be the consideration of section 13 of the report of the Committee on the Judiciary.
The section was reported as follows:
"13. Judges may be removed from office, by a concurrent vote of both houses of the legislature; but a majority of all the members elected to each house, must concur in such vote; and the cause of removal shall be entered on the journal of each house. The judge against whom the legislature may be about to proceed, shall receive notice thereof, accompanied by a copy of the causes alleged for his removal, at least twenty days before the day on which either house of the legislature shall act thereon."
MR. HARRISON. I propose to offer an amendment to the first sentence to insert after the word "legislature" in line 103 the words "for malfeasance, corruption, incompetency, neglect of duty, or on conviction of any infamous offence."
As the sentence now stands, it seems to me the legislature has too much power over the judges, who may be removed from office by concurrent vote of the two houses. It seems to me that exposes the judges to a removal for even frivolous causes, for mere matters of opinion - political opinion perhaps. By looking at the next line or two it will be found that a majority of the members elected to each house have it in their power to remove a judge, and it seems it would be much better to prescribe here the causes for which judges may be removed. You give the legislature judicial powers here, but give it to them without any limit whatever. It is with the view that the judges should be independent of the legislature as long as they pursue an upright course that I offer the amendment.
MR. SINSEL. I have no objection to the amendment, and if it should be adopted I hope the Convention will then vote down the entire section. It is unnecessary here; no use whatever for it.
MR. BRUMFIELD. Will the Clerk report the amendment.
The Secretary complied with the request.
MR. STUART of Doddridge. I cannot see why the gentleman from Taylor wants this section stricken out. It particularly describes for what offences the legislature may remove these officers, and it seems to me it embraces everything for which they should be removed unless you give the legislature power to remove for some political offence - for political opinions. "Malfeasance, corruption, incompetency, neglect of duty, conviction of any infamous crime" - pray tell me for what else you will have these officers removed for unless it is for some political sentiments?
MR. SINSEL. Mr. President, I will just tell the reason: I want the legislature to have nothing in the world to do with it. If we vote down this section, these judges will be amenable to the law and tried like other people exactly, and that is the very reason I am opposed to the section. I want the legislature to have nothing in the world to do with it.
THE PRESIDING OFFICER (Mr. Stevenson of Wood in the chair). The question is on the amendment of the gentleman from Harrison. Is the Convention ready for the question?
The vote was taken and the amendment agreed to.
The question recurring on the first sentence as amended, it was adopted.
Without further amendment, the section was adopted. Section 14 was adopted without discussion, as follows:
"14. The officers of the Supreme Court of Appeals, shall be appointed by said court, or, by the judges thereof in vacation. Their duties, compensation, and tenure of office, shall be prescribed by law."
Section 15 was reported:
"15. The voters of each county, in which a circuit court is held, shall elect a clerk of said court, and an attorney for the State. The term of office of the clerk shall be eight years and that of the attorney for the State four years. The duties and compensation of these officers, and the mode of removing them from office, shall be prescribed by law; and when a vacancy shall occur in said offices, the judge of the court held in the county where it occurs, shall appoint a clerk, or attorney for the State, (as the case may be) pro tempore, who shall discharge the duties of the office until the vacancy is filled. In any case, or matter arising, in respect to which, either the said clerk, or attorney for the State, shall be so situated as to make it improper for him to act as such, the said court shall appoint a suitable person to act in his place."
MR. SOPER. We have provided, sir, for the election of a prosecuting attorney in the report of the Committee on County Organization, which I suppose will answer for the attorney of this court, and I think we had better - 1 move to - strike out, "clerk of said court" here with a view of having it inserted in the report of the Committee on County Organization.
MR. VAN WINKLE. It will be in the power of the committee on revision.
MR. SOPER. Then I move to strike out "attorney for the state," here; we have provided for one already.
The motion was agreed to, and the first sentence adopted as amended.
MR. SINSEL. In the second sentence I move to strike out "eight."
MR. SOPER. That was the motion I was about to make, sir, to strike out "eight" and insert "four", and then strike out "attorney for the State, four years."
THE PRESIDING OFFICER. Had it not better be by two distinct amendments?
MR. SOPER. Very well. Take the motion to strike out eight and insert four.
MR. HARRISON. I hope the Convention will not strike out "eight." These clerks are important officers; their duties are difficult to be learned. The habit among our people since the constitution of 1850 has been to elect a new man almost every term; and it is most frequently the case that they have elected men wholly incompetent to perform the duties of the office. No man can learn to discharge the duties of that office correctly short of four years, and it seems we ought to have some little efficiency in this government. Some of the clerks who know how to discharge their duties may be re-elected, it is true, and put in for one, two or three terms; but it seems there is no good reason why they should be required to be elected every four years, because the great probability is that by the time a man learns to discharge the duties he is turned out. The experience of every member I have no doubt is generally the same as my own in reference to this matter. It is true in some of the counties in the section of country I live in they have very good clerks; but the great majority of clerks know nothing in the world about their business. They are removed at the end of every term and a fresh hand comes in who knows nothing about the business.
MR. MAHON. I would like to ask whether it would be in order to offer an amendment to the amendment?
THE PRESIDING OFFICER. Yes, sir.
MR. MAHON. Well, then, sir, I would move to fill the blank with "six" years. That, if I understand what we have done, is the term the judges serve - six years; and I do not see why their term of office should be longer than the judge of the supreme court.
MR. SOPER. I believe four years will meet the views of the country better than to insert the amendment or leave it as it is. I know that much depends on having an efficient clerk, and with the limited knowledge I have of the performance of those duties in this state they generally have been performed by competent men. In the county where I reside the present clerk has held his office ever since the county was organized. I will tell you what I have discovered, sir. There is a great difference in the attention and the readiness to accommodate when the office was held during good behavior under the appointment of circuit judge, and when it was altered and made an elective office. But I find a great difference in the attention and accommodation afforded by clerks a short time before the election and a very little time afterwards. There is no danger about getting an incompetent man, but if you want to have him attentive to his duty make his election for a short period. I fix the term at four years because it is sufficiently long, and it has this advantage in it, that if you make it six it will expire the same time as the judge's term expires; and if we should be so fortunate as to elect two incompetent men there might a difficulty arise. But if we have a competent clerk who has been in office two years, when we get a judge unaccustomed to the transaction of business he may afford him assistance particularly in relation to that portion of it which relates to keeping the month's report. I am opposed therefore to the amendment and hope it will not be voted.
MR. VAN WINKLE. I had contemplated, though had not decidedly made up my mind the propriety of making this clerk to be appointed by the judge. I prefer electing officers where there is any political power or influence to the office; but under the new arrangement I apprehend the clerk of the circuit court will be directly and entirely a ministerial office. He will not be like the former clerks of the county courts having charge of the county matters generally. I should perhaps have suggested it if I had known that it was the first clause of this section or was under discussion when I came in. I can only make the suggestion now. But as to his being elective, if he is to be I can see no reason why his term should be so much longer than the others. I should therefore be in favor of four years. I wish that we could carry it out entirely that these mere ministerial officers should hold office during good behavior; for I think since no political influence attached to an office, when a man gets into it and makes it a business or profession he ought to be retained in it while he behaves himself. I do not see that the principle of rotation in office applies at all to such officers. I may be mistaken in reference to the clerk of the court being entirely a ministerial officer, but if he is I should have preferred that. It is too late to make that amendment I suppose here; but I am for the shorter term.
MR. BROWN of Kanawha. The committee adopted eight years for the clerk; it will be perceived by reference to the report, the term for which the judges are elected is eight years. It was supposed the judges and clerks being part of the same court, being elected at the same time should hold their offices during the same period. The Convention changed the time from eight to six; and the same reasons induced in the minds of the committee would reduce the term to six years to make them co-equal. The reason suggested by the gentleman from Tyler is different from that which occurred to the committee to some extent in selecting a different time, and I confess there is some weight in it - that a new judge comes in and an old clerk familiar with the business from his preceding experience might have some beneficial effect in conducting the business of the court which an experienced judge might lack. It is certain that this office of clerk is almost or mostly ministerial. The clerk if he is allowed to take acknowledgments of deeds has a judicial function to perform. Whether that is to be continued, I am not advised. The duties though of a clerk are mostly ministerial; although those that require much practice and experience to perfect a man in the discharge of, they are not so easily attained there. A great many people think that to write a good hand is the qualification for a clerk. But I have known very superior clerks who could scarcely write their name. It is the smallest of the qualifications. A business capacity is the great object in a clerk, and that is to be acquired by practice and experience. In regard to length of term, I do not think eight years is at all too long. The only reason that occurs to my mind for changing it is for making it co-equal with the judicial term. In my own county we have had a clerk - 1 do not know when he began but he is one of long experience and without any exception, I believe, is one of the best in the United States. Much of his success and skill is the result of business habits and experience. I am content, sir, whether the Convention adopt the one term or the other; but I think it ought to be six or eight years, not four; that this would be limiting the term too much and increasing the number of elections.
MR. HAGAR. I hope the amendment to the amendment will not be adopted. I like to always express my confidence in a man in some way or another, and I think that is the general wish of the people. If we get a good clerk who serves us four years and is an honest, faithful, upright man, does his duty and comes before the people, we will re-elect him. If the argument introduced in reference to the clerk from Kanawha county (Quarrier) is good, why he will be elected again and then we will have an experienced clerk when the new judges come in. If we get a bad one, we had better get him out and try and get a better one in when most of the new judges come in. The people like to have a good deal to say in this matter, and I think they ought to have. The common laboring class of men have at least an equal proportion to pay in the salaries of these officers. If he is elected for four years and turns out to be a good clerk, faithful and does his duty, why the people will not be very apt to elect a new one inexperienced in his place and turn him out; and if he serves well for four years, like Mr. Quarrier of Charleston, they may elect him four years more. I have no disposition to say that a man should not have an office longer than four years and then be turned out forever; but let the people have some chance to express their wishes. I am in favor of the four-years term.
Mr. Mahon's motion to strike out eight and substitute six was rejected, and Mr. Sopor's motion to strike out eight and substitute four was adopted.
The question recurring on the third sentence of section 15.
THE PRESIDING OFFICER. Does the gentleman from Tyler design offering the amendment indicated by him?
MR. SOPER. Probably it had better be left to the committee on revision.
MR. VAN WINKLE. The adoption of so much as relates to the attorney will be passed by and the question will be on so much of the sentence as relates to the clerk. It has been disposed of. It is fixed in the report of the Committee on County Organization. The term of all the county officers except sheriff is fixed at two years, the prosecuting attorney amongst them. If it is desired to amend that, it will be proper to do so when we get back on the second reading of that report; but if we take this as it stands there would be two contradictory actions on it.
MR. BROWN of Kanawha. I desire to inquire what is the time fixed in the report of the Committee on County Organization for clerk.
MR. VAN WINKLE. Nothing said about that, sir.
MR. BROWN of Kanawha. One is as much a county officer as the other.
MR. VAN WINKLE. It was supposed the clerk would probably be made appointive by the judge during good behavior. I would be willing to do that now if I thought that opinion prevailed among the members. If the officer is to be elected, then there is no other way to remove him and I want the elections to be tolerably frequent. But where an officer is devoid of political influence, I do not see the necessity for any change except at the pleasure of the court for incompetency or misconduct.
THE PRESIDING OFFICER. The proposition is then to come to a vote on so much of this sentence as relates to the election of clerk and pass by the other matter. The question then will be on the sentence as amended in reference to the election of clerk.
The sentence as amended was adopted, and the question recurred on the third sentence.
MR. BROWN of Kanawha. I would suggest the propriety of acting on that other clause, as the attorney is as much a part of the judicial department as the clerk. The commonwealth's attorneys are peculiarly in court their advisers and out of it they are now and then. You will have a vacancy and no way to fill it.
MR. SOPER. The latter clause provides for it.
MR. BROWN of Kanawha. Yes, sir; but the reference of the gentleman from Wood was that the attorney is a county officer; but I think it properly belongs here.
MR. VAN WINKLE. My point only is that it has been passed upon. It may be a matter for the committee on revision in which part of the Constitution it shall appear. But if it is desired to change, to lengthen the term, I, of course, would make no opposition, but it having been already fixed, to go on here and vote this sub silentio and leave it four years would, of course, throw the committee on revision into doubt. The only thing is to have it distinct.
The third sentence as read was adopted.
The last sentence and the section as amended were successively adopted and the Secretary reported the 16th section:
"16. At every election of a governor, an attorney general shall be elected by the voters of the State for the term of four years. He shall be commissioned by the governor, shall perform such duties, and receive such compensation as may be prescribed by law, and be removable in the same manner I prescribed for the removal of judges."
MR. SOPER. I move to strike out "four" and insert "two."
MR. DERING. It seems to me the attorney general ought to serve with the governor and for the same length of term. I do not see the propriety of making the attorney general's term two years and the governor's three or four.
MR. VAN WINKLE. The Committee on the Executive Department have reported the same provisions in reference to this officer; but while we fixed the term of the governor at four years, we did not fix that of the attorney general. I think these officers, constituting the governor's cabinet should hold their terms for the same length of time. It is only fair that the governor should have those around him as State officers who are likely to carry out the policy he directs. I have not a report to refer to see what the provision is there.
MR. HARRISON. Four years.
THE PRESIDING OFFICER. Four years for the governor and four for the other officers.
MR. VAN WINKLE. Would not it be as well if there is a provision for the attorney general, to pass it by here?
MR. DERING. I was going to suggest this amendment, that the term of the attorney general, be the same as that of the governor. Would not that meet the difficulty?
MR. SOPER. I will accept that because my object is to have them elected for the same term. I go in for the election of governor every two years.
MR. DERING. I will withdraw that.
MR. SOPER. I will accept that, Mr. Dering.
MR. VAN WINKLE. I will move to pass it by until we get to the executive report.
MR. HARRISON. I think there is no provision in the executive report for the attorney general.
MR. VAN WINKLE. I will renew then the motion of the gentleman from Monongalia, that the attorney shall be elected for a like term.
MR. STUART of Doddridge. It is not necessary to say anything at all about the length of term. As a matter of course, if you provide for electing them at the same time, the term will be the same.
MR. VAN WINKLE. Then the motion is to strike out all after the word "State" and insert "regular" before "election."
The amendment as prepared was reported by the Secretary as follows:
"At every regular election for governor, an attorney general shall be elected by the voters of the State."
MR. BROWN of Kanawha. The amendment proposed by the gentleman from Monongalia, while you elect them every four years, it does not indicate at all what their term of service is to be. It leaves out this feature which prescribes the term of the office to which a man is elected. It would not necessarily follow that his office was to expire at the next election and in the course of the succeeding fifteen or twenty years you would have a number of attorneys general in the State all claiming to hold the office. I want the old one to end when the four years expire.
MR. SOPER. I think we had better pass this by until we get to work on the executive.
MR. BROWN of Kanawha. I see no objection to passing by unless we discuss both these subjects at once, because it will have influence on the mind of every one in reference to voting. I must say I cannot agree with the gentleman from Tyler in regard to electing governors and attorneys general every two years. In the first place, I feel very confident that no man would be elected attorney general, would leave his practice and go to the capital and attend to the business of the attorney general for two years. He would break up his practice and he would not get enough to pay his board there hardly. I know there is some difficulty in that regard with the office of attorney general in our present State of Virginia. I know that many lawyers would not touch it with a 40-foot pole. It may therefore be a subject to be met with the two offices together, and we had better adopt them both here or both at the other place.
MR. VAN WINKLE. I would suggest that it is only necessary to fix the term time and have it understood here. The committee on revision will certainly have to condense a little and put all these things under the head of "Elections" or "Election of State Officers," or something of that kind. Of course, one committee does not know what the other is doing. This is not the first instance where two committees have reported on the same thing, each taking jurisdiction of it on different grounds. Now, if the amendment I have proposed here will fix the term at four years; and if it should be fixed the same as the governor's, it will be all that is necessary at this time, as we understand with reference to the old constitution, the governor, although he may be elected in the spring, yet the legislature, both houses of the legislature, under the present constitution, are the judges of his election. The legislature elected at the same time will not meet until the following January. So that the term of the governor, as things stand at present - as far as we are advised, at any rate - will not be made to commence at the same time as county officers on account of that difficulty. Under a general provision for the terms of all these county officers and the members of the legislature ought to commence on the 4th of July; though there seem to be some obstacles in the Convention to fixing the elections later and, of course, making the terms commence later. If the elections should be fixed in the fall, all these terms might commence at the same time. But they never could make the terms of governor and legislature commence at the same time if the legislature is to be the judge of the returns of-the election of governor. I do not see how it could be placed in any other hands. It would not be right perhaps to make the retiring governor the judge of the returns of the election of his successor unless he was made ineligible to re-election. But I apprehend the amendment as it stands, to say here at this stage of the business that the term shall commence at the same time as the governor's would be as well as we can do now. All these things have got to come up a second time before they go to the committee on revision. Then after revision, which relates only to verbal changes of style and arrangement, they come before the Convention for approval of such changes as the committee on revision may make. I apprehend, therefore, the amendment I have suggested will be about as far as we can go at this time; and whether it is expressed precisely in the words that is desirable is not I think of so much importance.
Mr. Van Winkle's motion to amend was agreed to, and the sentence as amended adopted; and the question recurred on the second sentence.
MR. BROWN of Kanawha. I move to strike out in the 132nd line the words "shall be commissioned by the governor." I see the propriety, very forcibly suggested by the gentleman from Wood, why since the governor's election must be determined by the legislature it would be out of place, in my opinion, to confide that to the retiring governor, and there is no other State officer in the State to judge of everybody else. County officers are judged by those in the county and that is determined there. They are certified by the officer appointed to determine who is elected in the county; but the governor, of course, has to come from all over the State, and the fact whether he is properly elected or not - the adjudication of his election - must be by the legislature. It is altogether proper then as these other State officers that are elected - and the attorney general will be a State officer - run upon the same ticket, elected by the same constituency - that the legislature when it judged one should judge the other and not leave that officer to be commissioned by the governor who is elected at the same time. I do not see if an officer is declared elected by the legislature any need of giving him a commission. It will then read: "He shall perform such duties, etc."
MR. VAN WINKLE. In the report of the Committee on County Organization, as adopted there is a provision which does not relate to these State officers that the legislature shall provide for commissioning such of these officers as may be deemed necessary. Of course, it is not supposed that every officer needs a commission. I don't know how that is, or whether any of them do - whether the certificate of election is not sufficient. But I should apprehend the governor cannot commission. It would not make the governor the judge of the returns of his election. I do not presume the gentleman meant the governor shall be the judge?
MR. BROWN of Kanawha. That was the idea - that this was to make the governor the judge.
MR. VAN WINKLE. But if all commissions run under the State seal, of course it would be an executive function for the legislature to pronounce the attorney general duly elected, why then the commission issues from the executive office, as a matter of course. If the board of county supervisors return the sheriff as properly elected, then the commission would issue as a matter of course. So that if it is necessary for a commission to issue at all he should be commissioned by the governor, and it would need, it seems, to attain the gentleman's object by some other provision.
MR. BROWN of Kanawha. Believing it could be attained in another form I will change the amendment.
MR. VAN WINKLE. I would call the gentleman's attention to what is here in the 8th section of the executive report, 9th section: "A secretary of the commonwealth, treasurer, and an auditor of public accounts shall be elected at the same time and for the same term as the governor." The attorney general is an officer of the State, he is the governor's law adviser, a member of his cabinet. The returns of his election should be made and judged in the same manner as these other State officers. It appears to me when we get to that section we could insert the attorney general there and it would be such a provision as is necessary, while this might be left. I think we ought at least to have a general provision about what officers are commissioned officers. I don't know whether it has been usual to commission the attorney general, or what officers it has been usual to commission.
THE PRESIDING OFFICER. Does the gentleman from Kanawha withdraw?
MR. BROWN of Kanawha. Yes, sir; I withdraw.
MR. VAN WINKLE. We pass this as it stands, then, and when we get to the executive report it can be conformed to the executive officers.
MR. BROWN of Kanawha. I see it will be necessary to make some harmonizing when they are all voted, to make them all harmonious.
There is an idea embraced in the latter part of this section that is not in the executive report - an officer that is to aid the financial department in prosecuting claims of the State; he also will advise the governor and the other officers relative to the rights of the State in any controversies liable to arise, and it is necessary that there shall always be supervision over him. We have provided that which has just been voted in relation to the judges - "to be removable, etc." which I deem a very essential feature; and I therefore think it most proper that the section to be voted has this in, in the harmonizing the executive department where officers of a similar character where there is any conflict.
MR. VAN WINKLE. The gentleman will remember that there is also a provision in the legislative report about impeachments.
MR. BROWN of Kanawha. This is different from impeachment, which refers only to judges. This provides not for impeachment, because that always implies a crime, and then the legislature may remove an officer without any crime by merely stating the reasons on the record. It may be the reason stated is that he is the best and most competent officer in the commonwealth, if he becomes obnoxious to them they may remove him.
MR. VAN WINKLE. I concur with the gentleman. I had forgotten the concurrent vote.
The 16th section was adopted, and the question recurred on the 17th.
"17. Judges, and all other officers whether elected or appointed, shall continue to discharge the duties of their respective offices after their terms of office have expired, until their successors are qualified."
MR. VAN WINKLE. I move to pass this by on this ground, that when the report of the Committee on General and Fundamental Provisions was up, it contained some provisions which gentlemen thought were not full enough, and at the time it was suggested that it go back to the committee for the purpose of introducing a general provision of this kind. I have prepared one which will be proposed to the committee at the meeting tonight and probably be reported by the committee tomorrow or next day. It embraces all the officers of the State and is very nearly in the same language, that all officers shall continue to execute their duties until their successors are elected and qualified. I will therefore move to pass it by here because this coming in connection with the judiciary might be supposed to refer to judicial officers only, while it is proper to have a general provision covering all the offices in the State. It will probably save time.
The motion was agreed to and section 18 (the last) was reported:
"18. Justices of the peace shall only have jurisdiction of actions of debt, detinue and trover, and then only where the amount sued for does not exceed fifty dollars, exclusive of interest and costs. They shall be conservators of the peace in their respective counties, have authority to take relinquishments of dower, acknowledgments of deeds and other writings, administer oaths and discharge all other duties appertaining to their office."
MR. VAN WINKLE. I move to pass by the 18th section. It has been all acted on. It has been provided for in the former report.
MR. BROWN of Kanawha. If the gentleman will allow me but a moment, I was going to make a motion to pass by the residue of the report except the question of arranging the circuits and that section on the question of jurisdiction. I will read the section I have drawn, but from consultation with other gentlemen I thought it best, and it was suggested as this was a matter which if it failed to meet the whole of the jurisdiction here it would be a difficult matter to remove afterwards, to postpone it for further consideration.
Mr. Brown then read his proposed additional section as follows:
"The circuit court shall, except in cases confided exclusively by this Constitution to some other tribunal, have original and general jurisdiction over all cases at law, where the amount in controversy, exclusive of costs, exceeds twenty dollars, and of all cases in equity, and of all crimes and misdemeanors, and of all controversies concerning the title or bounds of land, the probate of wills, the appointment or qualification of personal representatives, guardians, committees or curators; and concerning mills, mill-dams, roads, ways and ferries; and in cases of habeas corpus, mandamus, and prohibition; and cases involving freedom, or the constitutionality of a law, or the right of a corporation or of a county, or of the supervisors thereof, to levy tolls or taxes.
"The circuit courts shall have appellate jurisdiction in all cases, civil and criminal, wherever judgment has been rendered by any inferior court, or other tribunal, or by a justice of the peace, except that no appeal, writ of error or supersedeas shall lie where the judgment is rendered by a justice of the peace in assumpsit, debt, detinue or trover, and is for less than ten dollars.
"And the said circuit courts shall have jurisdiction of all such other matters as shall be prescribed by law."
That covers my opinion of the course that can be taken with any cases that arise; and still if there is any oversight it will be well to consider it before it is passed.
MR. VAN WINKLE. I think it had better lie on the table and be printed. We can have it here by tomorrow morning. Just from hearing it read, we might not take the idea. I would like to say in connection with that, I had notified the Convention once or twice, while on the subject of justices of the peace, of my intention to offer a provision to fix that so a case could be tried by a jury before the Justice of six men. Somehow in the hurry of other matters I have omitted to do so. I will offer the provision to the effect that the legislature may provide for having a jury to aid the magistrate - which I have not yet prepared - I will also move in that case, I think, especially, that the minimum of jurisdiction should be $50. I do not see that in cases that are not confided, except in cases not cognizable by the justice, the necessity of that class of cases, which are plain summary matters of fact that we need to confide to the justices of the peace, it is necessary to travel the circuit with them when the amount is below $50 except by way of appeal. It seems to me it would relieve the circuit of a good deal of small business, and that a sufficient tribunal is created for their trial. I mention this merely as an amendment that I shall probably offer. I notice gentlemen have fixed their minimum jurisdiction at $20, but so as to confine it to cases that are cognizable by justices of the peace to $50. I merely rise to give notice that this being the judiciary report and it coming in jurisdiction of the circuits, I will offer it here; and of course it will be, like everything else when the Constitution is re-arranged, put in its proper place. But I wish to have the sense of the Convention on the propriety of letting the legislature provide a jury before justices of the peace, and with a view that the jurisdiction of the minor class of misdemeanors may also, if the legislature deem wise, be submitted to the justices; leaving the whole subject to the legislature, simply giving them permission to do it. That in connection with the proposition which it is proposed to print.
The motion to pass by the 18th section was agreed to, and the second section, which had been passed by early in the discussion was taken up.
MR. BROWN of Kanawha. As we have necessarily to return this report again, I move to pass by the second section also. We then would get to another subject. I have not looked over this since it was first passed by, and would rather have a little time to look it over, what I thought then having passed out of my mind.
By general consent section 2 was not taken up.
MR. VAN WINKLE. I move to take up the report of the executive committee. I see, however, the chairman of that committee is absent.
MR. SINSEL. He is away a good deal of the time. Second the motion to take it up and go on with it.
MR. STUART of Doddridge. I hope it will not be taken up. Let us complete the legislative report. The chairman of the executive committee is not here.
MR. BROWN of Kanawha. The chairman of the legislative committee is not here.
MR. VAN WINKLE. All the chairmen are absent.
MR. STUART of Doddridge. Well, we have his report, and I think he would be satisfied to have it taken up.
MR. BATTELLE. I think I can relieve the Convention. The Committee on Education have a report in and the chairman is present, but did not come here this morning with the remotest expectation of acting upon it today; but if the Convention feel disposed to pitch in, sir, I am ready. I move to take up the report on education.
MR. VAN WINKLE. I withdraw my motion to take up the executive report.
The motion to take up the report of the Committee on Education was agreed to.
The 1st section was reported as follows:
"1. All money, being the proceeds of forfeited, waste and unappropriated lands; all grants, devises or bequests that may be made to this State for the purposes of education, or where the purposes of such grants, devises or bequests are not specified; the revenues accruing from any stock owned by this State in any bank or other corporation, or the proceeds of the sale of such stock; any sums due this State from any other state on account of educational purposes; the proceeds of the estates of all deceased persons that may have died without leaving will or heirs; the proceeds of any taxes that are now, or that may hereafter be levied on the property or revenues of any corporation; and all monies that may be paid as an equivalent for exemption from military duty, shall be set apart as a separate fund, to be called the school fund, and invested under such regulations as may be prescribed by law, in the interest bearing securities of the United States, or of this State; and the annual increase thereof shall be sacredly devoted and applied to the support of free schools throughout the State, and to no other purpose whatever. But any portion of said increase remaining unexpended at the close of a fiscal year, shall be added to, and remain a part of, the capital of the school fund."
MR. VAN WINKLE. There are a great many separate and independent propositions in this section. I think it would save time to take them up by clauses, from semi-colon to semi-colon, and I move they be taken up in that order. These we will determine step by step. They are all relative to the clause commencing in line 13.
The motion was agreed to.
MR. HAYMOND. I am in favor of taking the whole section. It pleases me very well.
MR. BATTELLE. As I said when I moved to take up this report, I did not come to the Convention with the remotest expectation of its being considered today. I suggest it now merely as a time-saving instrumentality. I have not made any special preparation in reference to its consideration. I do not know, indeed, that it needs any. I certainly am not disposed to weary the Convention with any protracted remarks. I hope that the report will speak for itself.
This report is fuller perhaps than the provisions in the constitutions of some states in which very thorough and expensive school systems prevail. It seemed to be necessary to make the provisions here rather more full than obtains in some of the states where this system is of long continuance and has come to be understood everywhere as a matter of usage and does not, where it has existed so long, require such exact constitutional provisions. We have designed here, as far as we could, the means on hand, which is the great trouble, the great obstacle to be overcome in this scheme. We have designed to make as liberal appropriations as practicable for the use of a thorough common-school system in the State. The committee were of the opinion that there is no one subject perhaps upon which our people all agree so entirely as it does in reference to this one of providing such a system for the whole people. And I may further remark that there is no appropriation of means, no setting apart of money by the proper authority that so exactly and entirely reaches the whole people as does this. In the towns and average country, in our remotest as well as our most thickly settled neighborhoods this is a question that affects vitally and fundamentally the interests of the whole people. From the very nature of things, there is nothing local or partial in it. It comes home to the necessities of all our people and I think meets the desire, and very general desire of the community. I may remark further that the committee in limitations and grants, and in other respects, indeed, have borrowed as far as any precedent exists the present limitations, grants and usages as fixed in the present constitution and laws, departing therefrom only when it seemed necessary to the same full completion and organization of the system. In reference to the first provision, I do not know that I need say anything. We labor in this State under this disadvantage, that while other states have large appropriations of public lands and handsome revenues accruing, this State has yet nothing of the sort, and in the way of lands is dependent alone upon what may arise from the disposition of forfeited, waste and unappropriated lands that may hereafter and by the operation of the laws of the State be disposed of. I should hope that this provision will meet the unanimous concurrence of the Convention.
MR. VAN WINKLE. Mr. President, I think it is probably very appropriate that the proceeds of any forfeited, waste and unappropriated lands, if there are any such within the limits of the State, should go to this school fund; and I had the honor to submit a proposition on the manner of disposing of it which I am informed by the chairman of the committee will be subsequently reported here. I think we need a school fund. It will take some years to accumulate one. I can make no estimate of what the proceeds of these forfeited lands will be; but they will be constantly accruing it is true, and they do not seem in any way or shape to be appropriated for any other purpose. We act on the presumption, of course, that when the state is divided that what waste and unappropriated lands lie within the boundaries of the new State will become the territory of this State; that though there may be provisions in reference to it, or in reference to them, in the articles of separation, if ever drawn up, it may be a matter when we come to adjust the matter with Virginia what part of our debt and the assets will fall to us. But I apprehend we would be anxious to retain the control of these things on our own territory, and under any circumstances they will come to us to control. These forfeited lands consist in many respects not of recent forfeitures, but of lands that have perhaps for many years never paid one cent of taxes; that in the meanwhile have been entered, portions of them, and appropriated by individuals whose rights, of course, where they have paid the taxes and incurred no forfeitures would be saved. There may be a great deal of such lands in some counties, and there may be very little. But whatever it is, it can go to no better place than the school fund. It will afford some considerable sum toward paying off the debt of the State; and as a school fund is a thing that must be accumulated gradually I think the obligation would do as well to put the avails of these lands there as any place else. There is something to some people harsh in the very form of forfeiture, but it ought to reconcile them to it that it is to be applied to such a very useful purpose as disseminating education throughout the new State. I therefore trust this clause will be adopted.
The question was taken on the first clause, and it was adopted, and the second clause read.
MR. BATTELLE. I do not know that this needs any explana.tion. It is designed to cover both private bequests or devises or donations from individuals for the purposes of education in this State: that is to say, where these donations are made to the State and also to cover the cases that may arise of public grants to the State for the same purposes or where the purpose is not specified.
The second clause was adopted and the third reported.
MR. VAN WINKLE. I must move to strike that out. While, sir, as heartily desirous as any member can be that the school fund be rapidly accumulated that we might at the earliest possible period have the benefit of education disseminated throughout our boundaries, yet there are circumstances of clear and sheer justice in those who will be the creditors of the State that demand that this be stricken out.
MR. BATTELLE. I ask if any gentleman in the house has a copy of the constitutions of all the states. I omitted to bring mine and have to borrow one for a minute.
MR. VAN WINKLE. It will be remembered that the debt of this state - 1 am speaking now of the State of Virginia - a fair share of the debt was contracted for the purpose of taking in these banks in the various internal improvement companies in which the state is interested. Now, it may be remembered - I do not know whether it is by special act - that certain of these stocks whether inbanks or improvement companies are pledged. They are morally so if not so by the very words of the statutes, for the redemption of the debt. Again if we take what debt of the state we will have in proportion to our population, we will have about eight millions of dollars to shoulder. We may get a similar proportion - I estimate about one-fifth, that is about our proportion - of the population of the state. If we may get a similar proportion of the assets, which would, of course, reduce the debt when they could be converted; but those assets will be, for the most part unavailable, and we will therefore have to commence operations under an interest of some $480,000 a year; or, if some of these debts are seven per cent, it will exceed a half million. This would be a dollar and a quarter on the head of every white man, woman and child within the boundaries of the new State. But I consider the argument I have already used as sufficient to settle this question. I consider that morally, if not legally, these stocks are pledged for the redemption of the debt, and the dividends from those stocks are as sacredly appropriated to the payment of the interest. It is well known, sir, that the stocks would be worth as much as the debt, as the banks perhaps maintain their stocks. Those banks here in the northwest at least so far do; but it is a very complicated question. The State is a stockholder in eastern banks and these banks. Well, when we are about to settle with Virginia, the question will come up whether the amount of stock here is equal to one-fifth of the whole bank stock of the state. Now, my apprehension is - and I speak of it with a due regard to the responsibilities that such a declaration involves - that every bank east of the mountains is broken. I do not care what the circumstances may be in which this war shall terminate, but that is my conviction. I believe their cash funds have been drawn from them and that the scrip of the confederate states, so-called, is substituted for it; and that this will be worthless in any event, I can have no doubt. If the conflict should end in a temporary agreement to divide, the dividing line between the so-called confederate states and the loyal states, that line would run where we fix our boundary between the new and the old state. It will be an object, of course, for this State to retain the stock of the banks, within our own limits, and she may have to take it at par, as she probably will, when there will be no equivalent there, whether she will not or will have to sustain the loss that these banks have sustained. In my own opinion, sir, there is also a question which time only can determine: on what terms this division of property can be made. The old state is, of course, already in the clouds. Now they have been legislating about this bank, the Weston, which is a branch of an eastern bank, endeavoring to make something there to save it. But the difficulty there is this: that the bank is a stock bank and it has only a portion of the capital. The residue of your stock is pledged here at Weston, and the stockholders residing in the neighborhood are considered as owning stock in the Exchange Bank of Virginia and not in that particular branch. If the bank goes, that must go with it. We would then have only the northwestern bank and franchises and the merchants' and mechanics' branch and branches within this State. Now, whether we should have to retain the complete jurisdiction of them and the ownership of them among our own citizens; whether we should not have to make an allowance, because the interest in these banks is pretty large. This is a question, therefore. It is not certain that there is a dollar to come from it; but if there is, as I have already said, I consider that this bank stock is sacredly pledged to the public creditor. And more than that: to preserve the credit of our State we must retain these stocks applicable to the discharge of the public debt.
Now how is it with internal improvements? There is not one foot of railroad within our boundaries that belongs to the State Of Virginia. The state has not one dollar of interest in the Baltimore & Ohio or Northwestern Virginia Railroad - not one dollar. They have refused even to aid Wheeling which had taken half a million stock of the Baltimore & Ohio, which was paying dividends at the rate of six per cent per annum and had made an extra dividend of 33 per cent, and had the promise of paying more than six per cent. It was in fact paying more, because it was rapidly augmenting its sinking fund. But so strong was the dislike to do anything that might benefit this section of the state that when Wheeling applied to the legislature to take that dividend-paying stock off their hands with a view to reducing the capital of their debt and thereby enabling them to raise their credit and diminish their taxes, in order that their place might have a chance to grow and progress, it was refused. Not only have they not voluntarily done anything in our part of the state; but in the course of this when a city comes before them asking for such aid, under pressure of such a necessity as would have existed if it had suffered from a conflagration, they could not have refused without "Shame!" being cried on them from all the world. But when a dividend-paying stock is offered them, simply to relieve this section of the state, they refuse it. But these internal improvement stocks are all over the other side of the mountains. Some of them were indeed, paying dividends; but I believe I can assure this Convention that these dividends were nominal. I know a little about railroads. I know that a railroad is not finished when it is done - that is, put in operation; and I know the reason why these railroads have been lingering and lingering along is just that reason, they never were finished. The Baltimore & Ohio Railroad is hardly finished to this day. They make no construction account. They pay for present construction out of their annual earnings; but if they did, it would be accumulating every year. There are many things yet to be done on that road which is operating with as much certainty and capable of doing as large a business as any other in the whole country. Yet I pronounce that railroad unfinished. I do not think, therefore, that these internal improvements, even if we could come in for our share of them, are likely to afford us anything for many years, and the dividends will be very light. They may go on declaring dividends, but I tell you the thing cannot last. Some of these railroads in southwestern Virginia have but one cross-tie, where the northwestern has four or five. These roads here are well constructed; but there they are just precisely in that condition, and if you will turn to the report of the Board of Public Works, where is shown the number of cross-ties to the mile you will see I have not exaggerated. I am certain there are few or none of these roads that have more than one cross-tie where the northwestern road has three. Now, then, sir, these roads - this property - will all lie on the other side of the mountains; and if they do allow us a share in it - and that is all they can do - they will not pay out money for the purpose, and we have got to look to selling the stock in these roads with a view to applying it to the debt of the new State. It will be many years before there will be anything derived from them that is worth while. These subjects will have to be thought of. Perhaps they may come up when the report of the committee on taxation is considered, and more information than I am able to give may be thrown before the Convention. But you will see that is one thing to be provided for - that debt. It is coming on us do what we will. Whether I state the amount correctly is not of so much importance; but take half the amount, and who would ever relieve us of the stocks and public works to which we might be entitled, and the portion of the literary fund - if that had not all been wasted. But with all these things, we shall have no immediately available means for the payment of that interest, and we shall have to go - it is very possible - immediately into taxation to meet the interest, for beyond the dividends on the bank stock we shall have nothing towards it. Now if it shall ever come to these banks and railroads proving profitable - if the debt by these or other means is discharged - and there should be a surplus left, I should be perfectly willing that that should be turned over to the school fund. But in the present circumstances, however, desirable to increase that fund, whether if we do it at the expense of the State, we can justify it to ourselves hereafter, is a question. These things need a great deal of consideration and a better knowledge of the facts than I am able to impart at this time. But I think what I have said is reliable and it must enter into this consideration. I am willing to give to the school fund everything that can be justly or properly given it; but this taking it away from where it belongs to bestow it as it were a gratuity, is a thing I cannot consent to.
MR. BROWN of Preston. I feel very much like the gentleman from Wood in reference to the rapid accumulation of a fund for educational purposes in the State. And yet, sir, in view of the facts that he has stated, that these bank stocks belonging to the State have in many instances been pledged for the redemption or payment of the state debt, I think it is highly improper that we should direct them in the way indicated in the report. I do not know the precise amount of bank stock held by the State, but I understand it will probably exceed half million dollars, and that is held by the two banks in this city. Whether in view of this fact that these stocks are pledged or the redemption of the State debt the committee on finance, of which I have the honor to be a member, have given that direction to these stocks, the gentlemen if they will refer to the 8th section of the report of that committee, they will find that they have given that direction. "The legislature may at any time direct a sale of the stocks owned by the State in banks and other corporations, but the proceeds of such sale shall be applied to the liquidation of the public debt." I think any other course in the diverting of this pledge for the redemption of the state debt would be flagrant injustice to the creditors of the State of Virginia; and therefore I am in favor of the motion of the gentleman from Wood to strike out those words.
MR. BATTELLE. Mr. President, I will say frankly that there are gentlemen on the floor here - among them the gentlemen who have spoken - who are much better informed in relation to this question of stocks than I am. I will say, further, that there is no one here who is more anxious, and determined, indeed, that this State, so far as my vote goes, shall meet to the full extent its just and reasonable responsibility in the way of debt; and the point made by the gentlemen that these stocks, if it be so - and I do not presume for a moment to question it - have been set apart heretofore or pledged for that purpose, is certainly one deserving of very grave consideration. I may remark, however, that the committee copied this provision almost verbatim from one found in the Constitution of Kentucky, in which they specified that some seventy-odd thousand dollars of stock owned by the state in a certain bank (I think the Bank of Kentucky) should be set apart for school purposes; and a similar provision, though not so precise, is found in many other constitutions of the country. I would ask the Convention, however, without giving up this point yet, to pass it by for the present. I would like to have more time to consider it. The argument of the gentleman from Wood was a little singular, that these stocks were not worth anything in the first place; that they are to be set apart to pay debts. That seemed to be the ground of his objections. I may have misunderstood him. But if it is to be in discussion or doubt - there is some doubt in my own mind in reference to it - I would ask the Convention to pass it by for the present.
MR. BROWN of Kanawha. I cannot coincide with the gentleman from Ohio on the motion to pass by this subject. I do not know that we will have any better time to study it than now, and we are compelled to meet this issue. I have no doubt it will be the pleasure, however reluctant it may be, of this State to assume a fair, just and reasonable proportion of the state debt. That I cannot question. If I could, I am very certain of another thing, that if we refused we would have no state to assume anything. I think there can be no question about the fact that whenever we shall turn our backs on the debt we justly and honestly owe, we will receive no favor in any legislative body in the land, whether state or national. Why, sir, Virginians would cut a pretty figure in the halls of Congress asking for the formation of the new State and its recognition by Congress when they were refusing to assume their just proportion of the debt of the state, and the creditors of that state being their representatives in that Congress and all representatives of the creditors in these northern states. Why, sir, in New York alone I doubt not $15,000,000 of the debt of Virginia is held; and would a Virginia representative ask a representative of New York to acknowledge this new State proposing a negation of the debts we honestly owe? If not, gentlemen seeking a new State and at the same time seeking escape from the payment of his honest debts, would have to return whence they came. So we may lay it down as a fixed fact that in the formation of this new State we have got to do justly as well as act wisely; be honest, be just to all men. While I do think that, sir, I cannot agree with the gentleman from Preston that these bank stocks are any peculiar fund to pay that indebtedness.
MR. VAN WINKLE. When this State has applied for a loan - I think I am rightly informed - perhaps the gentleman from Doddridge may be able to confirm it or otherwise - but whenever they have applied for a loan or for the selling of bonds, this fact of their ownership of bank stock and internal improvement stocks has always been put forward in the proposal; and in every estimate of the state finances, these are always put to the credit of the debt. The debt is reported at so much, and these stocks, so far as they are interest-bearing or dividend-paying are deducted from it, so that we seldom know really what the amount of the debt is. In the same way I conceive the literary fund is invested in these internal improvement bonds and interest is paid; and these stocks of the internal improvement companies are in fact pledged as a security for the capital of the literary fund.
MR. BROWN of Kanawha. I do not understand the State of Virginia has pledged anything she has got except her honor for the payment of her debts except in the case of the James River and Greenbrier Company, of which she is the main owner as mortgagee; that she has by mortgages on the works pledged the works for the payment of the bonds that she has guaranteed the payment of. That is rather a pledge of property to the creditor of which she is guarantor, and therefore it is indemnity to her and it is not her pledge.
MR. VAN WINKLE. I said morally if not legally pledged.
MR. BATTELLE. I find I misunderstood the gentleman from Wood. I understood him to say these things had been specifically and specially pledged by Virginia to the payment of her debts.
MR. VAN WINKLE. Morally, if not legally.
MR. BROWN of Kanawha. I am satisfied it is incorrect, and the gentleman will admit as above, is wider than the precise facts will warrant. I understand that Virginia has dealt upon her honor; has pledged nothing but that. When she goes into the market to borrow money she offers her state bonds. Those are authorized by law and backed by her integrity. The buyer presents the state debt, and there is charged everything she owes, and then on the other side they set out their assets, banking stock, etc., and deduct that from the debt; and it shows the balance she has got to raise by taxation to provide for the indebtedness. But the great ground of credit is the taxation of the people, and the great ground of security is the honor of the state, that she will not repudiate her obligations for that which she has borrowed. Because whenever she will repudiate, she will have used the stocks. Whenever people refuse to pay by taxing people for the debts they owe, they will take away the stocks appropriated to it. No, the great point with the creditor always is, what is your ability to pay? If I say, our people are wealthy and will bear the taxation, they will lend to your government as long as you ask. If you have myriads of bank stocks and they doubt your integrity, they will not lend to you. Nothing but the honor of the state, because there is no power in the nation to sue the state. Whoever deals with a state has no power to compel it. It is mere volition; and whenever they say they will not pay, that is the end of it: except to wage war and collect by force. Now, this debt we owe, and our part we are bound to assume. And here I may notice, in reply to the gentleman from Wood, that in laying off our territory we have cautiously guarded ourselves against taking in any portion of these public improvements that we are going to assume the debt that is engendered for the making. Now, it was a singular sort of argument to my mind, the argument of the gentleman from Cabell, who favored excluding Allegheny which actually lies right in the line of our boundary and people identified with us in everything and in which some five or six millions of state treasure had been spent in internal improvements. It was to be excluded, and was excluded because the state had put that money there and if we received Allegheny we were bound to foot the bill of five or six millions of dollars. We have to foot the bill anyhow.
MR. PARKER. The ordinance provides -
MR. BROWN of Kanawha. I don't care anything about the ordinance. That can never justify us in dishonesty.
MR. PARKER. I speak in reference to the provision of the ordinance of last summer.
MR. BROWN of Kanawha. But I speak in reference to existing realities, the ordinance apart. The ordinance undertakes to prescribe what amount of indebtedness this State is to assume; that it is to balance accounts and charge the west with all that we have received and credit us with all that we have paid. Well, that is a very fair accounting as between us and the east, and if there was nobody else in the matter there would be no difficulty in settling the thing - particularly when it is all in our hands. But the creditors of the state, rather a large number of them are out of it, and even those who are living in the state, will never give their assent to it; and I imagine, no matter where the creditor lives, we can never juggle between the west and east so as to cheat the creditors.
Now by the hypothesis employed in forming this new State the east will be broken as fine as powder. Then the creditor - take a New York creditor - whose delegate in Congress, comes up to vote on this question and asks his constituent at home, how about this thing? This creditor will say: the fifteen million of old Virginia state bonds the Richmond convention has passed an ordinance that there shall not be one dollar of interest paid to any Union men or their representatives; and if you vote to admit the new State, which is the only part of it that would assume any of this debt, then you take out the only portion that is able to pay anything and turn me over to the eastern part which will be broken and repudiate the debt too. Do you suppose New York delegates will ever vote for the admission of your State on such grounds as that? You are compelled to meet the world. While under the necessity of assuming a just proportion of this debt, no matter how much the amount, I am satisfied it is wise, and will be found out hereafter to be, to take in as much of the territory as you can as will include these improvements that will prove your indemnification for that debt which we will have to pay if it takes the last button on Gabe's coat and the shirt off of our back.
The State of Virginia has a number of bank stocks, and they have always been paying stocks. I am not aware of a solitary bank in the state in which the state held an interest that has never paid a dividend to the state. I concur in the sentiment that it is proper to transfer this stock to the school fund - the proceeds of it. I believe when managed for the benefit of that fund it relieves the people to that extent from taxation for the school fund. Everybody will have an immediate and direct interest in seeing that these stocks are properly and economically and profitably managed. The debt of the state ought to be met by direct taxation to meet this interest and a certain per cent, either one per cent or half, or whatever would serve to discharge the debt as a sinking fund, I cannot question. That ought to be met fairly by a direct tax on the people, and meet it annually. Of these bank stocks, all the stocks owned by the state are not pledged at all - only obligated in the honor of the state that if she applies any of these stocks to any other purpose than with the paying of the public debt, you have the honor of the state to substitute in its place an indemnity by direct taxation. I do not believe, sir, that the people, unless I am greatly deceived will ever flinch when you tax them no more than necessary to raise the fund and discharge the public debt. They may be forced to augment that debt, but they will not repudiate. If they do, then I shall repudiate them.
I do not see any objection to this application of these stocks. I do not look in this operation to the stocks the new State will assume by this operation. I imagine whenever you form this new State we have got to have an entire reorganization of our banking system, placed on such a footing as that the money that is issued from those banks will circulate at par all over the state. The state will necessarily be compelled in sustaining and preserving a judicious banking system to be a stock-holder in that system; otherwise, if you committed this entirely to private capital your increase will affect values and you will have every kind of currency in every particular locality. The only way you can have a permanent, established and safe banking system will be to retain in the state, as a large stockholder, a considerable control, and that the proceeds shall go to this school fund. I hope therefore that the section will be voted as provided, and that it will be a permanent and prosperous fund.
MR. STEVENSON of Wood. I would prefer myself if this paragraph or clause was not considered final at this time. As it stands now, I confess I have a little difficulty in my mind in determining exactly what would be the proper course to pursue; but upon hearing the matter discussed so far I am rather inclined to think that the provision ought to stand as it is or probably with some modification, and for these reasons. It has been, I believe, admitted - at least it has been asserted with certainty that these particular stocks in banks and corporations are specially pledged for the redemption of the state debt or any part of it - that it is a mere moral obligation. Well, now, I will admit that. If there is no special pledge given by these stocks that they shall, be used for the purposes of redeeming state debt, there is a moral obligation, of course, resting upon the state with not only these stocks but all the other property of the state has, if she has any, and all the property of every citizen of this state as a levy until the time comes when that debt is wiped out will be morally bound for the payment of our portion of that state debt. Now, why should the argument apply to these stocks particularly? Is not all the money we propose to collect and appropriate from any other sources as strongly bound in the moral point of view for the redemption of the state debt?
MR. VAN WINKLE. Better strike them all out.
MR. STEVENSON of Wood. Now, I say so. That is my argument. That is simply a moral obligation; then you cannot raise any revenue for school purposes on that principle. You cannot tax a man's property because that property is already morally pledged that this debt shall be redeemed. I do not consider the argument a sound one because it proves too much. If it were true that this bank and corporation stock is specially bound, why then there would be more force in the argument. Even then, I do not think it would be conclusive, because I say whether the property of the people of this new State is pledged by any special contract or consideration for the redemption of the state debt, it is just as much bound and every man is as much bound to see the debt paid as if he had entered into a personal contract for that purpose, if we assume any part of the state debt, which of course we will. I think that disposes of that portion of the argument. It seems to me it does.
Now, there is another consideration. The provisions of this Constitution which we are making is not to apply to special cases. They are to apply to the condition of the people of this State, to this system of education as it shall exist in this State until the time comes when the people will require this Constitution to be altered. Now it might be true that the argument would apply to this particular case, to the stock now held by the state; that it should be held for the purpose of liquidating the state debt. But suppose hereafter, when we have this new State, the State shall become a stockholder in railroads, bridges, banks and other corporations - I do not think she will do it with my vote; not if I can help it - but I do not know what course the Convention will pursue on that matter; and if they give the State the liberty of hereafter taking stock in these corporations, why, sir, this principle will then apply to that stock, and very properly I think. Because I cannot conceive any purpose for which the revenues arising from such public improvements in which the State shall have stock to which it could be so properly applied as in educating the children of the State. Now, that is a strong argument, it seems to me. Even if it were true that the stocks held now by the state appropriated to the liquidation of this state debt, it does seem to me after that stock has been appropriated for that purpose that if the state should hereafter see proper to invest her means or lend her credit to the purposes of other public improvements or corporations, that that money properly belongs to the school fund and should be appropriated for that purpose and no other purpose.
These are considerations that strike my mind as very forcible ones in favor of the retention of the provision as made. But it might be possible it can be modified so as to meet the views of gentlemen on both sides of this question. That the stocks at the present time owned by the state should be set apart and go as far as they will towards wiping out this state debt, but that the stocks hereafter owned by the State in any of these institutions or public improvements shall be dedicated for the purposes of public education. If the vote is pressed now, I shall have to vote for retaining the clause as it is; but I would prefer it should be passed by for the present.
MR. BROWN of Kanawha. There is another view that struck me after taking my seat. The suggestion of the gentleman from Wood who has just taken his seat, would be, as I think he will perceive in a moment, entirely futile. The stocks at present owned by the state are nothing, and therefore the transfer of any such to the school fund would be useless. These stocks belong to the State of Virginia. How can we deal with them and dispose of them? We are making a Constitution for the State of West Virginia, and we are not invested with the powers of the State of Virginia as the August convention was. West Virginia as yet has no stocks; in fact, West Virginia does not yet exist. It is stocks that the State of West Virginia may have that we are talking about, not what they have got for they have got none. The suggestions I made before were entirely in reference to bank stocks. I did not observe at that moment that this clause included stock in other corporations. In reference to bank stocks I think there is a high propriety in appropriating the proceeds of them to the educational fund. They have nothing to do with internal improvements. They are the commercial transactions of the community; and I can see very much propriety in appropriating the proceeds of the state's stock in them to the school fund. But in regard to corporations for internal improvements, there is manifest injustice. In the first place - and before I sit down I will move to amend the motion of the gentleman from Wood so as to strike out only the words "or other corporations." Now suppose the state charters a company to construct a railroad through the length and breadth of the state; from some point in one end of the state to some at the other end, to supply a link between the commerce of states on one side with those on the other; by which railroad the state becomes the line of transit between the commerce of several states and foreign nations; the proceeds of which when made may run into the millions. I have no doubt there are channels which may be constructed through the state the proceeds of which would make the corporation have a profit of four, or five, or six millions a year - some five or ten millions - equal to the whole revenues of your state. Now that is made by a corporation. Because if the state sees the individuals cannot do it, it will see the necessity to aid in the public work and accomplish the great end. If that indebtedness has been incurred by the state for the benefit of the public and is then actually thereafter returning immense sums to the treasury that will be over and above any fund required for the school fund, and would it not be right and just that that money should go to the liquidation of the debt incurred. It seems to me not only just and wise, and proper that all the proceeds of internal improvement companies should go to the public debt that has been engendered by the state in order to make these internal improvements. I therefore hope that clause in the section will be stricken out, because it at once results in the inevitable defeat of the whole section; for I am certain the people of the State would tear this Constitution into ribbons if we adopt a provision that all the proceeds from internal improvements shall be turned over to the educational fund for it may prevent a sum five or ten times as great accruing to the revenues of the State. Take for instance, the revenues arising from the Erie Canal that goes to the treasury of the State of New York: who would think of appropriating the whole of the revenues of that work to their school fund? Or to turn over such revenues to the educational purposes of a state as small as this. Why, it would be to not only give a classical education to every child in the State but to keep some of them eight or ten years in the universities of Europe.
MR. BATTELLE. I wish to withdraw my request for postponing this, as the request was made under a misapprehension. I misunderstood the gentleman from Wood, as I before indicated, as stating that this fund had been specifically pledged for the purpose he indicated. I feel the force of the arguments made by the gentlemen who have spoken since in establishing this point, that this fund is no more pledged - I now mean specifically; the bank stock - to meet the debt of the state than any other property the state owns; and, indeed, as Mr. Stevenson showed, if we permit that to obtain, I do not see how the State can turn a wheel to any purpose or devote a cent of taxation to any object whatever; would have to wait for everything until we go to work and tax the people to pay the debt. At the same time, I wish it understood that I am for recognizing and providing to the full extent for our just proportion of the debt, whatever it may be - whether something or nothing.
In reference, however, to the pending amendment, I feel, I say, the force of the objections made by the gentleman from Kanawha to that phrase which he has moved to strike out. It seems not likely to me that the State of West Virginia will become a large stockholder in any work of internal improvement. There is, I believe, a provision in the report of the committee on taxation, which I judge from the indications, will meet with favor, that the state shall contract no debt for that purpose anywhere. It strikes me that the tendency here, that the State of West Virginia will not on any terms become a large stockholder in any work of internal improvement. So there is no danger, it seems - hardly a possibility, that the State of West Virginia will ever hold a fund of that kind yielding large revenues. But whatever the fund may be, from the nature of the case, the high probabilities are, and the almost certainty, that that fund will be limited. It seems to me precisely the same principle obtains in reference to it as in reference to any other property of the State; and it being a matter of public concern for same reasonings would apply for its being put into this fund whereby it would better be husbanded and its benefits more widely diffused. The same principles apply as in reference to the case of the stock held by the State in any bank. I really can see no ground for the apprehension that there is to be any great plethora of the school fund, any uncomfortable fullness from suffering this clause in the report to remain.
MR. VAN WINKLE. I am afraid we are at least going to take a leap in the dark. I have never had my attention very closely drawn to the finances of the state. I have never had anything to do with it in a public way; and it is only as a citizen, informed the same as others, of what was going on in the state in which he is concerned, that I know anything about it. Incidentally noting the laws that are passed and what is done. I remember one little incident when I was written to by a monied man in New York, while I was residing in Baltimore, the time that Virginia had begun to sell her bonds in the New York market and was, under the policy of Governor Floyd endeavoring to establish a credit. I think she did not trust wholly to her "honor" about that. The New York gentleman was not an acquaintance of mine but my name had been given to him by some friend at Baltimore as one who could give the information he sought. I had nothing specific, but I wrote to the auditor to send me one of his statements of the resources of Virginia; and I am very certain that those bank stocks were put down as an offset to the debt Virginia owed. Now, sir, people do not claim their money on "honor" - capitalists, at any rate. They lend it on the credit of the person proposing to be their debtor, in which honor may be an ingredient but is a very indefinite term outside of the duelling law, and is not a thing that enters very largely into the calculations of merchants and capitalists. They take it for granted that any southern community will pay their debts if they are able, although some instances exist in the history of one or two states of this Union which would seem to contradict that supposition. But they look solely to the resources. Properly that means whatever a man can command in an emergency. They look to all these things; and their willingness to loan, or their intention to withhold their money, is based upon considerations of that kind. I do not think, sir, Virginia ever went into the market to borrow money on her honor alone. I should think the state officers would not feel it any degradation to descend into particulars to show her ability as well as good intentions. It is that, after all, that comes into the question; and it is the ability of this new State to do what she may have to do that capitalists will consider also when it comes to our turn. That we shall have to assume a considerable portion of the debt there can be no question. Even on the plan set forth in the ordinance of charging to the new State all state expenditures within the limits thereof and a just proportion of the ordinary expenses of the state government since any part of the debt was contracted, and deducting from this the moneys paid into the state treasury during this period, if you go back to the time when the debt of the State of Virginia began to grow, you will find there will be some debate in the beginning of it. How it is going to be adjusted, it is utterly impossible for me to say; because even when I have been disposed to make the calculation I have found I did not have the data on which to base it, nor do I think it exists in this section of the state - nowhere in the state but at Richmond. We have therefore to go on what we do know and what we can with some certainty anticipate. I look upon it that it cannot be possible that we shall have to assume less than six million of it. I put it at eight, as a rough calculation; but take it at $6,000,000, and then with seven per cent - six for interest and one for sinking fund - it is $420,000 to be raised only, as the gentleman proposes by special taxation. That is equal to the whole amount that is raised in all these counties that are to be erected into a new State - all the state tax. Here then is at once a doubling of the taxes. And yet those taxes, as we are paying them now, have been adjusted to the fact of a debt. Is it to be supposed that if these taxes, as they are now adjusted, yield four hundred thousand dollars, we can spare more than one-half of it to apply to the payment of old debts? And if we could, sir, have we nothing else to do? Why, sir, the first act of this new State must be to borrow money; not only to assume the debt, but to go in debt further. You have not a public building. You have not a penitentiary; you have not anything - nothing whatever. All this has got to be provided and provided at once; and for that purpose, you certainly will have to borrow money. I cannot remember figures, and I would not pretend to give on mere recollection. I can only make an approximation. I do not know what amount of bank stock previous to twenty years ago; but at that time the state resolved to increase the banking capital and money was borrowed for that purpose: no question about that. Bonds of the state were issued and sold especially to increase the banking capital of the state. A certain amount was assigned to banks here - quite certainly to the Northwestern Virginia Bank, because the branch at Parkersburg was then authorized on the strength of this increased subscription, and most certainly money was borrowed for that purpose. Now, sir, the United States, and perhaps other governments, come into the market and say they want to raise one million or two million or more millions of dollars. The United States have pledged the proceeds of the public lands at one time for the redemption of money they borrowed, and some states have pledged particular revenues; and it is no unusual thing to make special pledges of property for the redemption of debt. They are crying out now that the treasury is almost exhausted. If you want to borrow money you must lay on the people equal to the payment of this money, the ordinary expenses of government and a sinking fund, or you cannot borrow it. We believe they will reason that the United States is good enough; the fact of eventual payment, we do not doubt. We hold the securities of the United States Government to be as good as gold, so far as ultimate result is concerned; but these matters become matters of daily sale in the market. As soon as these bonds are issued by the government, they are sold in all the money markets of the world from day to day and every day. Their value in the market depends on the permanence and certainty with which the interest is paid more than on the ultimate security. They are sold and bought - bought with a view of selling them again for a little profit and not for investment in them. In order to give them currency in the markets or a rapid and certain sale it must be shown that means is provided for meeting the interest regularly and certainly. That is what is required in reference to a proposed U. S. loan. Not that we doubt the solvency of the United States; but they want it fixed definitely that the money will be provided for the interest on these loans. Now, sir, if we have to go into the market as a new State to raise, if you please one million dollars we have got to show our ability. We may tell them that we intend to pay, that we are not repudiators, that we hold our obligations to be sacred; but the reply will be, let us see what your means are. These things sound very pretty to talk about honor and all that sort of thing; but it is not what is going to satisfy the public when you go into the market to borrow money.
Well, sir, notwithstanding what has been said, this hairsplitting, as it may be called, though not so intended, between moral obligation and legal obligation, I am not disposed to recognize any difference. I say if the State of Virginia held out to the world that among her means of payment were these bank stocks, these internal improvement stocks, that these were some of the items on which she relied for the ultimate payment of that debt, I insist the obligation is perfect whether moral or legal. Let us remember that by the very act of this operation, every dollar of this debt of Virginia is a moral obligation on us, a legal obligation on us. When two men are in partnership and wish to discontinue it, the dissolution of that partnership does not relieve the party going out from liability for the whole debt; and we have two things to do whenever this question comes up for practical adjustment. The first thing is to make the best bargain we can with the old state as to what proportion we shall pay, and then to getting the creditors to agree that if we pay that portion which we assume to pay we shall be relieved from the rest. How that is to be done, I am at a loss to conceive; and the only thing in which we are in any way favored is that we would stand as a sovereign State, and cannot be sued as a sovereign State. If we can succeed in effecting as much as that, we relieve ourselves greatly, but it is on the assumption that we can succeed in doing at least that much that my previous remarks have been based. We will not be held accountable for more than our fair proportion of this whole debt. If we are then to assume our place among the states of this Union; if we are to have and preserve in our hands the means of bettering our condition, the means of building up our State and providing for those public institutions we shall certainly need - a penitentiary and a state-house, at least - then it behooves us even at this early period in the matter to be looking carefully to see that we do not do anything to prejudice our credit in advance. It is possible - very possible that I may be overanxious on this subject. It is possible that circumstances may turn out better than I anticipate. But I do very much apprehend that the whole assets of the state - 1 mean the public property of the state - that can be sold, such as its stocks in banks and in railroad companies, and canal companies, will be worthless. I do not mean to say - for I do not fear - that the stock of these banks here will be worthless; but then if the others are worthless and these the only ones worth anything, we would get our one-fifth of these. The subject is one that is going to cause much perplexity. It occasions perplexity enough whenever we look into it and think of it; and my impression is that we had better leave a fund like this where it can be applied to sustaining the credit of the State and not put it out of the hands of the legislature in this way and of those financial agents who will have to encounter the debt and provide for it. We are, as I said, at last, about to take a leap in the dark; and I think it is the better plan not at this time to appropriate any of these funds in this way. Gentlemen may talk about probabilities and improbabilities of this State aiding in the construction of works of internal improvement. That may be virtually an impossibility. When will the day arrive, in the present state of things, that begins saddled with a debt can borrow money so that she can be distributing it about in internal improvements? To say nothing of the fact that public opinion ev- erywhere is setting most strongly against states being concerned in these works and probably it may be the opinion of the citizens of the State when the subject comes to be considered. To say nothing about that, it appears to me as an absolute impossibility that this State will for 15 or 20 years at least be able to appropriate one dollar in aid of internal improvements. I say so, sir, because I believe the demands on the State which will be made - the demands arising out of the original debt, out of the cost of those necessary State institutions which we must have - will absorb all the revenues that the State is able to raise.
Again, sir, we see now that this state is in debt now to the tune of some forty millions exclusive of their war debt, which we do not have to assume - some forty millions. Pennsylvania, a state, I believe, of greater resources - that is of greater natural resources and whose resources were more developed - was obliged to repudiate in the hard times a few years ago on a debt of forty-four millions. She struggled hard and long. She finally funded her interest, paying interest on interest. The State of Maryland was placed in the same fix. She also is now extricating herself. But for several years both these states sat in the light of repudiating states. If forty millions is, as there is every indication to believe, as much as the whole state ought to bear, then, sir, most certainly any fair proportion that may be assigned to this new State of forty millions will be as much as we can stagger under. Because, whatever may be our natural resources - whatever may be the wealth that is lying waiting for somebody to pluck it, as it were, it is a well-known fact that our portion of the state is not as well developed as the eastern or any of the other states I have mentioned. The prospect to me, sir, is a gloomy one; and nothing but harmony and a disposition among our citizens to carry out what they have begun and submit to inconveniences for a number of years in order that we may establish on a firm basis this new State, will carry us through. We will need the combined exercise of a generous and liberal support of every citizen to establish ourselves in such way that we may derive from its operation the benefits it is calculated to confer when we can place ourselves in a proper position in reference to it.
Again, sir, the gentleman from Kanawha alluded to the effect this may have on the acceptibility of our proposition in Congress. He tells you perhaps fifteen millions of this debt is held in New York. Well, sir, how much of this debt is held here in the northwest? I am not able to fix the amount; but in the States of Indiana, Illinois, and Ohio and I believe Michigan - in all these states where the banks are founded on the deposit of stocks, there are large amounts of the bonds of Virginia held by those banks, unless they have disposed of them since the ordinance of secession went into force. There are large amounts held in these states, and I do not know but others. And what is the consequence? If this goes to Congress, if there is anything that looks like - even if they think it looks like - unfairness in reference to this debt, if we could satisfy them of the ability of this western portion of the state to meet her share, whatever that may be, of the debt; satisfy them that she is husbanding, as it were, her resources for that purpose, we shall meet no opposition there. Remember that in the Senate of the United States, as at present constituted, 21 or 22 states, having about 40 Senators, states coming in there of 8, 10, or 12 Senators directly interested in this question of the debt, will use their power to enforce upon us such provisions in reference to this debt as they will think just and right. Nobody who knows my sentiments on these subjects will accuse me of any want of a disposition to aid this school fund to the utmost of my ability. Personally, I am ready to submit to almost any kind of taxes necessary for the purpose. I know that the welfare of this State, and every state, is bound up in this subject of education. I know if you allow population to grow up in ignorance it will grow up also in vice; and I know that while education does not of itself furnish those moral restraints, which must come from a higher source, yet we all do know that intimately connected with the legitimate education given to children in our public schools at this time is the teaching of moral obligations of men from the higher source. We know also that to give them the ability to see for themselves and learn from the Book of all books what are their duties is placing in his hands a great advantages. I am as sure as any man can be that the highest and most binding duty of any community is to provide for the education of its children. I may be told that my money is to be spent in the education of other people's children. That is not the reason, for the State owes it as a duty to the children themselves who are to become its future citizens. That is not an argument that can be established in the case. I trust the great majority of this Convention are disposed to do the best they can for the creation of a school fund; but strong as my disposition is to aid in that object, I must take that view of the whole ground and consider our duty in other quarters which the circumstances demand. If we do start this State in a crippled condition, if we are not able to place it at once on such a basis in reference to the popular credit, as will enable her to go on, all the provisions you can make with reference to education of children or anything else will be futile and inoperative. Because, at the very foundation of it all must lie the ability of the State to maintain itself.
Now, sir, I hold that moral obligation is of a higher character than legal obligation. You cannot enforce moral obligations when they are only that in courts of justice. You can enforce legal obligations in courts of justice; and in that very fact I find when it is left to my individual sense of right and justice the obligation stronger than when it is a mere legal obligation. The moral philosophy of Paley lays it down as a fact that when the law imposes a penalty for that which is not wrong in itself but simply arises out of the condition of the government the man is justified by paying the penalty in doing the act just forbidden. I do not coincide with him in his doctrine by any means, but it seems when there is a legal obligation we are all inclined to go so far as that obligation compels us to go and no farther. But in moral obligation we look to something underlying the letter of the law, and a man of right conscience will endeavor to go to the full extent of the obligation. We all shirk it; slip aside from it by any manner of means. And if I am right in this, we by the fact that whenever loans have been applied for and is offered in the market by the State of Virginia, these have always been put in the circulars that have been issued - circulars we never saw in the west - but issued under the authority of the state, always have these bank and internal improvement stocks put down as among the resources of the state applicable to the payment of her debts.
I have gone further into this matter than seems to be called for by the particular question that is pending; but it does involve great principles and it is necessary we should look into the matter which would have come up more properly under the report of the Committee on Taxation and Finance. That committee have had the charge of looking into our present situation as far as the means in hand permit, and I have no doubt if the chairman was here he could give us valuable information. But I am so persuaded that there is a moral pledge of these bank stocks and internal improvement stocks to the redemption of the debt that I am not willing to give them any other disposition; and as I have already stated, if that obligation rests on the State of Virginia at large, qualifies the whole debt, it rests on this new State just as much in reference to the portion of the debt it will be compelled to assume. I think it is risking something to put these here. I think it is risking perhaps the assent of Congress to this separation. I think it is risking something more than that, sir. It may be placing out of our hands perhaps the only cash fund to which we will have any access if you confine it to the banks in this city; for in order to assume the debt we must provide for a state sinking fund. We ought to have something at our command to go upon. If you place these stocks into the education fund they take a permanent position and the dividends will go into that fund; and unless those dividends are actually distributed for school purposes the residue will go into that fund. Not a dollar would be applicable to the meeting of this interest. We will want these funds, and if we can rely on these banks to be paying us something from the start, then it is very meet we should keep that cash means where we will have within control of the authorities of the State one that can be applied to this interest.
I say again, that if we go into this matter it is like taking a leap in the dark. I am satisfied our proportion of the debt will be much larger than many persons have supposed; much larger than those supposed who were rushing matters in August last; because I know many then did suppose we were going to get rid of the old debt by setting up a new State. But that cannot be. I trust therefore that this clause will not be adopted.
MR. BATTELLE. I have one suggestion to make, and that is that to my mind there is no data upon which the gentleman can give us anything like an approximation to accuracy in reference to what is to be the debt of this new State. It may be what he estimates and it may be much less. Of course, we all agree that whatever it is to be, it is to be paid. But there is such an unprecedented state of things in this part of Virginia and throughout Virginia that it is absolutely impossible for anybody to arrive at anything like an approximation of that debt. But be it much or little, the gentleman's argument, as before shown, fails in this, that this bank stock owned by the state is no more responsible, no more pledged, than any other property owned by the state; and as has been shown, his argument would apply against the expenditure of money for school purposes derived from any source whatever as effectually as against this.
There is one other suggestion I wish to make. How do you derive means to pay your state debt atall? By taxation. By taxation of what? Persons and property. Just, then, in proportion to the number of persons and the value of property in the State will be our ability to pay our debts. If we have a great many people and a great deal of property, it makes no difference whether you have any bank stock or not; we can pay our debts. But if we are to have a sparse population and limited resources, capitalists as well as other people will take this into account in the proposed estimate of state condition. Now, there is one point we may as well look square in the face right here and now - and that is, we must have a system of free schools provided for. I believe that is now, simply as a practical question and simply in the same vein and line of thought of gentlemen who have spoken before. When we have the means of paying our debts at all - be they much or little - to meet our responsibilities, we must have some means provided for the education of the people at large. We have free schools in Ohio, Pennsylvania, in Indiana, Illinois, Iowa, Wisconsin, Minnesota, and all throughout the broad plains of the West. The people have been leaving West Virginia in droves, to my certain knowledge in great part influenced by the fact that elsewhere they could educate their children, and here they could not do it. Now, this is a matter that comes home to every citizen, to all our families, to all our communities. For to a parent loving his children there is no interest on earth, nothing beneath the heavens, next to his soul, that so intimately and nearly concerns him as providing the means of instruction for his children; and every day and every year, in the advancement of these times, that feeling is increasing, and unless this Convention does something that shows we are in earnest and mean to do something more than mere brutum fulmen, a mere "tub to the whale," unless we make a provision which means business on this subject, we may depend, sir, our ability to pay our debts will go on lessening and decreasing because we have not the people and the wealth to do it from the fact that under existing conditions our people are seeking homes and business in places where they can educate their children. Now, when emigrants propose to come here, what will be the first question the emigrant asks? It is a question that comes up every day. When a man proposes to buy a farm and move from one county to another, if he be a parent, the head of a family, in making his selection of a farm, other things being equal, he always has reference to the means of his condition in this respect. In some sections of our country we have had schools; perhaps in all of them we have occasionally. But this question in reference to the provision in the neighborhood, the facilities in the neighborhood, for school purposes, is one that always enters into his calculations if he be a parent, in selecting his locality.
I say, then, sir, that as a question of political economy - as a simple practical question as to means of increasing our ability to meet all obligations against us as a people, we need to do something vigorous, not extravagant. There is nothing extravagant proposed in this section, but to do something to satisfy the people we are in earnest in providing the means as soon as may be, and as effectually as may be, for the purpose of meeting that felt want all over our country. If we do not, sir, it will be one of the defects that will cause us to lose population and capital, and taxes - and all. These capitalists are very shrewd men, sir, and if you propose to borrow money, if they saw here a provision for a wasteful extravagance, of course they would decline; but if they saw a provision such as, from the admitted all over the states of this Union was well calculated to provide for filling up the State with population and energy, numbers and capital, they would find - and sensibly find - in that a basis on which to predicate sufficient loans to meet the wants of the State.
MR. DILLE. I have listened during the progress of this discussion with a great deal of pleasure. I am delighted with the disposition manifested by all who have spoken not only on the subject of education, but the subject of great importance, that interests us all, the taxation and finances of the State. I think that both of these subjects should be met not hastily, not with rashness, but with a disposition to view both of them as practical questions with which we are all individually interested. I was delighted to listen to the remarks of my learned and distinguished friend from Wood (Van Winkle) although I differ with him as to the place when his remarks would properly come up. I may be mistaken, but it seemed to me that the question upon which he very truly remarked that we ought to approach so carefully and cautiously, that it was not properly before the Convention. It seems to me that really the question here is a practical question that must come up in the future action in the State, that the question as to the disposition of the bank stock or the stock held by the State of Virginia in the different corporations of the state, has nothing to do with the question here before the Convention; that the State of West Virginia has no bank stocks; would have no bank stocks; if she were admitted into the Union tomorrow, she would not have a single dollar of bank stocks nor a single dollar of corporation stocks; that all the bank stocks she ever will have will be acquired through the act of her legislature and that legislature can act with reference to the disposition of any fund that she may have in these banks, and if she is disposed to invest money in bank stock or in any corporation that when she makes that investment the profits arising therefrom will be diverted to the purposes of education; that when the stocks are sold they will also be diverted to the same purpose.
Now, this provision here seems to me to amount almost to nothing; and my objection to it would be that it does not reach far enough. It does not take the proper position in reference to it. Now, my motion - and I will throw it out merely as a suggestion to the chairman of this committee - is this: that there ought to be a fund drawn from the banks of this State and diverted to the purposes of education. The banks having received certain peculiar and exclusive privileges as corporations ought, after they have made a fair and proper profit - a profit beyond what any individual not investing in bank stocks can make - that surplus when it amounts to say eight per cent should be diverted and the State should have the benefit of one-half per cent.
MR. BATTELLE. Will the gentleman allow me a moment?
MR. DILLE. Yes, sir.
MR. BATTELLE. The suggestion of my friend from Preston I think needs a subsequent provision.
MR. DILLE. What? I have not examined it carefully.
MR. BATTELLE (reading). "The proceeds of any taxes that are now or that may hereafter be levied on the property or revenues of any corporation." It does not provide the absolute requirement that such taxes should be laid, but should they be, provides their direction.
MR. DILLE. Now, so far as concerns any bank stocks that this State may hereafter have, I have no idea that ever this State will invest a dollar, in any future action, in the stocks of the State of Virginia; nor unless the disposition of our people changed very materially, and unless our future grows bright very rapidly, I fear she will never be able to. And I may say I do not desire that she may invest money in corporations for purposes of internal improvement; but were she to do so, why this whole subject comes up; and if she invests money in it here is a constitutional provision that she knows at the time she makes that investment in bank stock or in any work of internal improvement that the proceeds arising from that investment will be diverted for the purposes of education. Now, I agree with every word that my friend from Wood has said in reference to the bank stocks in the State of Virginia - every single word he has uttered on this subject, I most cordially agree. I am as free to agree with him on that subject as I am on any other subject, that so far as the bank stocks of the state are concerned, so far as concerns the works of internal improvement of the State of Virginia wherever located, in whatever locality they may be, that it being a part of the assets of the state it properly should be directed to the payment of the debt; and I further agree with him that wherever capitalists have invested money in the stocks of the State of Virginia, wherever the State of Virginia has contracted debt, that capitalists have always looked to the bank stocks as well as any other of the assets they may have. As he remarks, almost every auditor's report that I have any recollection of observing for the last ten or fifteen years showed the bank stocks set down to the credit of the state, and the works of internal improvement, wherever they pay, are set down as an asset of the state, and the condition at any time of the finances of the state is ascertained in that way. Whilst that is the case, I think we would be acting unfairly, I think we would be acting dishonestly, that we would be acting in bad faith as a state - that is, as the State of Virginia, not the State of West Virginia, but as the State of Virginia - in these different banks, if I recollect aright, amounting to nearly a half million now, should be applied to that portion of the debt of the state to which they properly belong. If the debt was contracted in receiving money that was invested in those banks, it ought to be directed in that channel which would liquidate that debt. And it seems to me, as we agree in reference to that thing the only question that may arise, that could properly arise, in the investigation of this matter before us is this: suppose in a final settlement between the State of West Virginia and the old State of Virginia that those bank stocks that the State of Virginia may own may fall to us, lying and being included within our territory, then what disposition should we as a State make of those funds? Now, I think it would be right, viewing the question in that light should the stocks of the State of Virginia in the Northwestern Bank here fall to us, that having taken that amount of stock that originally belonged to the State of Virginia we ought to assume so much of the debt of the State of Virginia; and when that bank goes into liquidation that fund ought to be diverted and not taken possession of by the State of Virginia but diverted to its proper channel and applied to the payment of the debt - that portion of the debt that we assume as a State - and thereby release us from that portion of the obligation that we may have been compelled to assume. It is only with that view of the question that this matter can arise. But it seems to me that whenever this becomes a State, she does not thereby get the assets, the stock of any bank within her boundaries as a portion of her assets at all; that it belongs to the State of Virginia; and that it should be applied strictly to the payment of the debt of Virginia. So with any other stocks that she may hold in corporations within our boundaries that belong to the State of Virginia; and we do not thereby, by being taken into the Union acquire any control over it further than the State of Virginia may transfer that fund to this portion of the state if she assumes her portion of the debt of Virginia. All that, of course, will be a matter of arrangement if ever an arrangement takes place between the State of Virginia and the State of West Virginia.
Now, I think, viewing the question in the light I do, and looking at it in that way, that really the provision here may amount to nothing. We may never get one single dollar as a school fund in this way without the legislature may determine in its wisdom to invest money in a corporation or a bank for that particular purpose, because as she makes an investment for that particular purpose, that this provision in the Constitution will show the direction that that investment shall take; and it is only with that view, and I can see no danger to be apprehended from the operation, because if she makes that investment, at the time she makes it she knows what is the effect of the investment, and she may conclude to do it; in her wisdom, she may conclude to make such an investment. She may conclude to make an investment in an incorporated company for the construction of a railroad. She may have surplus funds for that purpose and do it with a view of making such an investment as may add at some future period in her history to the school fund of the State. Should she do so, she does it knowing that that is the channel that she intended that fund to take. With that view of the case, I am disposed to vote for the provision as it is. I can see no reason for discriminating; I can see no reason why we should draw a distinction between a bank and a corporation - replying particularly to the amendment of the gentleman from Kanawha; because if she makes that kind of an investment, she may make it for that specific purpose. If she concludes to make the investment in bank stock, why it takes that channel. If she makes it in a corporation for the construction of works of internal improvement, why it takes that channel. Hence, I shall vote against the amendment in this instance and in favor of the proposition and against the motion to strike out.
At the usual hour, the Convention took a recess.
The Convention re-assembled at the appointed hour.
MR. VAN WINKLE. Mr. President, before this matter is proceeded in, I am not going to make any remarks - 1 will read a paragraph from the Constitution of Virginia and leave it with the remarks I made this morning. I read from the 30th section of the 4th article of the Constitution of Virginia:
"The general assembly may at any time direct a sale of the stocks held by the commonwealth in internal improvement and other companies; but the proceeds of such sale, if made before the payment of the public debt, shall constitute a part of the sinking fund, and be applied in like manner."
There is a specific pledge the gentlemen were waiting for this morning.
THE PRESIDENT. When the Convention took a recess, it had under consideration section I of the report of the Committee on Education, the question being on the motion of the gentleman from Wood to strike out the second clause and the amendatory motion made by the gentleman from Kanawha to strike out only the words "or other corporation."
MR. PARKER. Mr. President, during the recess I looked up some documents that I had to ascertain as near as I could the indebtment of the old state and to form some estimate of how we were to come out on the settlement with her.
A settlement on the principles which are laid down in the ordinance passed by the convention last summer, I take to be binding upon us and upon the legislature of the State of Virginia, now and at all times, and likewise binding on the legislature of West Virginia when we arrive at that point. The terms on which the settlement shall be made are laid down there, and those terms must bind all of us for the reason, simply that it is the ordinance of the whole people of Virginia in their sovereign capacity, binding the legislatures of fractional parts, as we are - the legislature and the Constitution this Convention shall ordain, and the legislatures of Virginia.
I find the indebtment to be on the 1st day of January, 1860 - the ordinance dates, I think, to the 1st day of January, 1861, one year after this date - the whole amount of indebtment at that time, taking the guaranteed bonds, was $34,439,659.63; registered and coupon bonds $31,679,659.63; guaranteed bonds, which the state would have to pay as an absolute levy, $2,670,000, making $34,439,659.63. Then there is what the state owes to the literary fund, with which I suppose we need not encumber our calculations. Consider that as an indebtment of the state it is $1,279,679. Then the liabilities which was a guaranty for several of the railroads, amounted to $1,138,500. Then the session of 1859-60. This calculation was made in March, 1861. The session of '59-'60 made appropriations as is well known, to the amount of $9,611,857.37. I suppose that is from that time prior to the 1st of January, 1861. A very large amount of that had been expended and probably the bonds had not issued - a very great amount.
That is now the exact standing. I get it from a report of a select committee which was made in March, 1861, to the legislature - reliable, I presume. We standing about one-fifth of the population, as remarked by the gentleman from Wood, about 360,000, I think is our population; the whole population of the state is 1,500,000; so about one-fifth would be -
MR. VAN WINKLE. White population?
MR. PARKER. The whole white population is, I think, a little over a million. We are to pay then a just proportion, taking the ordinance, of the ordinary expenses of the government from the time this debt commenced to accumulate. That is, first, a just proportion and the amount that state has expended within our limits. That is another sum which is definite and clear. We can look round and see what has been expended. And then we are to be credited with all the taxes that we have paid from the counties lying within the limits of the new State since the debt commenced to accumulate.
Now, a just proportion. The question is, on what basis are we to arrive at the "a just proportion." The ordinance there leaves it - does not indicate what basis, whether of population or valuation, but a "just proportion." Now, if our share is to be determined by the population, including slaves who have not been assessed for their value, we have paid a large excess over our proportion. If we take the population per capita and include the slaves and what their valuation would have been during all this period, or most of it, I do not know precisely how we could arrive at a valuation. It was very low when the debt commenced and has always been very much below real values. Our valuations west of the mountains have been on our cows and