The Convention met at the appointed hour and was opened with prayer by Reverend Gordon Battelle, a member from Ohio county.
The minutes of the preceding day were read and approved.
MR. BATTELLE. Mr. President, I hold in my hand a proposition which I wish to submit to the Convention, with the request that it be read, laid on the table, printed and referred to the Committee on General and Fundamental Provisions.
The following is the proposition presented by Mr. Battelle, which was ordered to be disposed of as requested.
1. No slave shall be brought into this State for permanent residence, after the adoption of this Constitution.
2. The legislature shall have full power to make such just and humane provisions as may be needful for the better regulation and security of the marriage and family relatives between slaves; for their proper instruction; and for the gradual and equitable removal of slavery from the State.
3. On and after the 4th day of July, eighteen hundred and slavery or involuntary servitude, except for crime, shall cease within the limits of this State.
MR. BROWN of Preston. I offer a resolution, which I desire to have referred. The resolution, which was referred, is as follows:
RESOLVED, That the Committee on the Schedule be instructed to enquire into the expediency of making provision for the per diem and mileage of the members of the General Assembly of West Virginia, at its first session under the new Constitution.
THE PRESIDENT. When the Convention adjourned it had under consideration the 13th section of the report of the Committee on Fundamental and General Provisions.
MR. HERVEY. I move that when this Convention adjourns at half past 12 o'clock it be to meet Monday morning at ten o'clock.
THE PRESIDENT. The Chair would remark to the gentleman that it is meeting now at ten o'clock.
MR. HERVEY. It is to avoid the afternoon session.
MR. VAN WINKLE. The object of the gentleman is simply that there be no afternoon session held today.
THE PRESIDENT. I understand it now. The question is on the adoption of the motion of the gentleman from Brooke.
The motion was agreed to.
MR. PARKER. I have a few authorities which I would submit now.
THE PRESIDENT. The Chair was going to state the question. It is on the motion to strike out the whole section.
MR. PARKER. I had not the authorities at hand in the remarks which I made last night, and I propose to submit a few now and the gentlemen on the other side can have a chance to answer.
Mr. Parker afterwards furnished to the reporter the following paper, embodying his views on treason against a state, with the authorities on which he relied:
In our peculiar system of government can treason be committed against a state?
To determine this question, we should look to the origin of our system, the source of power and the distribution which the people have made of this power.
Previous to the separation of the thirteen colonies from Great Britain by the establishment of their independence, these colonies owed allegiance to the Crown of Great Britain. By the establishment of that independence this allegiance was dissolved and the power became vested in the people of the several colonies. Each of these colonies formed for itself a state government. Virginia formed hers in 1776 and other colonies theirs soon after. These 13 peoples became then 13 independent state governments in 1777 or 1778, during the war, these 13 independent state governments entered into a league or compact called "Articles of Confederation." The powers of this confederation were vested in a Congress, solely composed of delegates elected by the legislatures of the states. There was no executive, no judicial department then; no president nor Federal courts nor marshals then. The Congress could enact laws but had no co-ordinate branches to expound and carry its laws into execution. It could only recommend to the 13 state governments, asking them to carry its laws into execution. The state governments, as a general thing did this, whilst pressed by the arms of Great Britain. But when this outside pressure was removed by the Peace of 1783, they ceased to comply with the request of Congress. No money could be raised to pay the debts created by the war, and its laws were set at defiance. Rivalries and disputes were springing up between the several states in relation to commerce, imposts and the like; and the whole fruits of the great struggle were threatened with immediate ruin. Amid these stern necessities it was in 1787 the delegates chosen generally, I think, by the legislatures of the several states, with George Washington at their head, met in Philadelphia and drafted the Federal Constitution. It begins "We the people of the United States, in order to form a more perfect Union, etc.," Art. 6th, Sec. reads thus:
"This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Article 9 (Amendment) reads thus:
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others held by the people."
Article 10 (Amendment)
"The powers not delegated to the United States by this Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people."
Article 7th. Sec. 4th:
"The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."
This Constitution was submitted to the people convened through their delegates in each state, who ratified the same and thereby became consolidated into one people and government to the extent of the powers granted in that constitution, but no further. The powers reserved respectively to the states and the people remained in the respective states and in the people the same as before the adoption of the Constitution of the United States. Before the adoption of that Constitution, each state was sovereign and supreme, and the adoption of that instrument by the people only abridged that state sovereignty to the extent of the sovereignty expressly transferred to the Federal Government by the Federal Constitution. Now, that residuum of sovereignty which remained in the states after the people had resumed sufficient to construct the Federal Government, is the sovereign power to which the people owe an allegiance separate and distinct from their allegiance to the Federal Government to the extent of its powers; and against this residuum of state sovereignty treason may be committed. The state is as sovereign and supreme outside the bounds of the Federal powers as it ever was.
As seen through the Federal Government, the people of the 34 states are but one people, making one great nation; and the powers conferred upon the Federal Government were with this view. It has the exclusive management of our intercourse with foreign nations with the outside world and with such internal interests as are general and require uniformity, as the post office department, internal commerce, etc. Coextensive with the constitutional exercise of its delegated powers, the Federal Government is supreme; and if the due exercise of its powers is obstructed anywhere in any state, it has the unquestionable right to march its armies and remove the obstructions without any invasion or infraction of the rights of the state; for it is an exercise of its constitutional rights only but if it transcends the powers granted, it is an invasion and aggression upon the rights reserved to the states or people. To the states and people are reserved all powers of a local nature, to be exercised as the people and peculiar wants of each state shall require. Here the rights of persons and the rights of property are mainly defined and protected, with the modes of acquiring and disposing of property. In these local matters the state is sovereign and supreme. If a murder should be committed in the county of Ohio today by killing one of its citizens, the Federal Government would have no jurisdiction in the case, no more than the queen's bench of England. The indictment would conclude against the peace and dignity of the Commonwealth of Virginia; and in case the culprit should be convicted and sentenced to be executed, and 10, 20 or 100 citizens owing allegiance to the commonwealth should organize and arm themselves for the avowed purpose of rescuing the culprit, it would be levying war against the lawful authority of the state and treason against that authority. Any resistance to lawful authority (according to Noah Webster) is rebellion; but it requires organized and armed resistance to lawful authority, or the actual organizing and arming with intent to such resistance, to constitute the levying of war within the meaning of the Constitution. It is not necessary that the armed conspirators should contemplate at the time the upturning of the entire government, for their example if generally acted upon would soon destroy it by piece-meal. This does not invade any right of the Federal Government; nor does it immediately affect the state in thfe discharge of its duties to that government. But if upon requisition from the proper state authority, the Federal Government should interpose to assist the state government and should meet with this organized and armed resistance it would then become treason against both governments as it would be an organized and armed resistance to the lawful authority of both; and whether in each case the offense against the state would become merged in that against the United States is a question not now necessary to be discussed.
We are citizens of and owe allegiance to two governments, the Federal and the state, each equally original and springing from and resting on the people; each is self-acting and supreme within the scope of the powers granted by the Federal or state constitution. The constituency of the Federal Government are the citizens of the 34 states. The constituency of the state government are the citizens of the state. The Federal Government is the supreme law of the land; and wherever there is a conflict the state must yield to the Federal power. To decide the question of conflict that may arise in the last resort, is the province of the Supreme Court of the United States, which represents all the citizens of those states. This is the keystone of the arch, without which the whole must sink into anarchy. It is a system that seems to have generated and produced by the circumstances that surrounded and its great founders, who were but fit instruments in a divine hand.
Among the authorities produced were the following: United States Constitution Art. 4, S. 2; Mass. R. S. Ch. 123. Sec. 1; N. Y. R. S. Vol. 2, p. 656; Act passed by the Legislature of Pa., 11th of Feb. 1779, Sec. 3; Also Act 1829, Sec. 3, R. C. of Va., Ch. 162, Sees. 1, 2, 3, declaring what acts shall constitute treason against these states and prescribing the penalties. He then read from the opinions of Judge Tucker, of Va., 4 Tucker's Blackstone, app. p. 22; Judge King, of Pa.; in the case of the Kensington riots. The Supreme Court of N. Y. in the case of Lynch, and the opinion of the Supreme Court of Rhode Island, in the case of that state against Dorr, for treason in 1842, in which case Dorr was convicted.
The point was distinctly made in Dorr's defence; and, in deciding it, the court said: "Treason against the state and treason against the United States are to be distinguished; the one from the other, by the immediate objects and designs of the conspirators. If th,e blow be aimed only at the internal and municipal regulations or institutions of the state, without any design to disturb it in the discharge of any of its functions under the Constitution of the United States, it is treason against the state only - though, if the object be to prevent it from discharging those functions, as the election of senators, or electors of presidents, and the like, it becomes treason against the United States. The power to provide for the punishment of this crime, the legislature derives not from the United States or the people thereof, but from our own people, from the organized sovereign people of the state."
He also referred to the Shay rebellion in Massachusetts, soon after the revolutionary war, where sixteen persons were convicted of treason against the state. He also read from Wharton, Am. Criminal Law, page 582, title: Treason; and the cases there referred to.
During the reading of the concluding extracts from these authorities.
Mr. Van Winkle (Interrupting). I must call the gentleman to order. He is entirely out of order. What he is reading is all aside from the question. Those things cannot be read without special leave of the house. But to sit here - I make the point of order.
MR. PARKER. Mine is something more than a grammar of the -
THE PRESIDENT. The point of order is raised. The Chair -
MR. PARKER. A moment. The question as I understand now before the Convention is whether treason can be committed against a state.
MR. VAN WINKLE. The question now is, whether the gentleman is in order.
MR. PARKER. That is the question raised by the chairman making that report: can treason be committed against a state?
MR. VAN WINKLE. No, sir; I don't make that question.
THE PRESIDENT. The gentleman from Cabell will take his seat. The point of order has been raised here. The Chair was very well aware he was giving the gentleman from Cabell a very wide latitude in reading, but was expecting every moment that it would terminate and disposed to be as liberal as possible and permitted the reading to go on until he was satisfied it had been too extended, and the Chair thinks the point of order raised by the gentleman from Wood ought to be sustained and so decides this question. The gentleman will, of course, have a right to appeal from the decision of the Chair, or can resume the floor if he does not choose to appeal and argue the case not with the extent of reading which he has drawn into this debate.
The question is alone upon striking out the 13th section, which covers the whole ground of treason, and the Chair would distinctly urge the members to apply closely to the question at issue. The gentleman would have the election of taking an appeal from the decision of the Chair or resuming the floor and confining himself.
MR. VAN WINKLE. The floor belonged to the gentleman from Marion, and the gentleman from Cabell had leave to read, so that the gentleman cannot resume the floor for the purpose of discussing the merits of this question. The floor belonged to the gentleman from Marion.
MR. PARKER. If the gentleman from Marion claims the floor, I did not so understand it. I yield it. I would not have occupied it a moment if I supposed it had been so.
THE PRESIDENT. The gentleman from Marion did not claim the floor.
MR. HALL of Marion. I was entitled to the floor, but was not disposed to deprive any gentleman who desired to speak on this question. As I intimated last night, whilst I had an opinion on this question, it was not my purpose to occupy the time of the Convention by arguing the legal question before us but to make a single suggestion which conceived would be a sufficient reason for our proceeding with the case and refusing to strike out. I will state my view on that question in brief. Do not design to occupy the time of the Convention by any argument.
Whilst it is the opinion of the gentleman from Wood, whose legal opinions have and will have weight everywhere, that the offence of treason cannot be committed against a state, we do know that whatever the fact may be that opinion is not an original idea with the gentleman but has been understood and insisted upon by some of the very best legal talent we have had anywhere, whilst equally able legal men have held the opposite opinion; so that I do not believe that this is a question that is all on one side or new to any man who has been led to investigate the legal questions or quibbles in question. But it occurs to me that on this question we need not investigate with a view to ascertain whether treason can or cannot be committed against a state, but it is eminently proper - and does seem absolutely necessary - that we have some provision either in the Constitution or by legislative enactment to punish certain offences against the state. Whether we call this offence treason, believing that treason may be committed against the state, or whether we call it insurrection, that is really the difference between the parties holding the different opinions. One party insists on calling that offence treason which the other insists is only insurrection. Now, whether we call it one name or the other, I conceive it is important that we have some provision to punish offences against the State either in the Constitution or by legislative enactment. I, like some gentleman, who spoke on this question last evening, am in favor of having some provision in the Constitution, and for this reason, as remarked by the gentleman, from Monongalia, in slating a matter, I shall urge on this body the broad of the very character of the offence "we call treason - or insurrection, if you please to so call it. The very character of the offence is such that we are called on to act upon it at times and under circumstances that have really disqualified the public mind and public journals from acting calmly, cooly and justly and with discretion on these matters. The public mind when offences of this sort are committed or exist is almost invariably - and inevitably so - excited. Legislative bodies and courts of justice are very likely to be carried away with the exciting scenes that surround them and will be led to hasty, injudicious and improper action. Thus I think there is propriety in fixing some limit, in prescribing some rule of action and in defining in the Constitution, the organic law, something with reference to this offence that shall control for the time during excitement both legislative and judicial tribunals. Thus it is that I am opposed to striking out. I think we admit - I am decidedly of the opinion of the gentleman from Kanawha and other gentlemen who have spoken on this question - that treason can be committed against the state. If we describe the offence and what shall be the punishment of that, we shall have accomplished the very object that it is necessary we should do in this Constitution.
MR. VAN WINKLE. I said a while ago that the point stated by me was not that stated by the gentleman from Cabell. The point I made is that the treason described in the Constitution of the United States cannot be committed against the state - that is levying war; not that a state cannot call a riot treason and punish it.
MR. HALL of Marion. There is no doubt of that position, and that where the offence does come within the character and description of the offence described, that would make it an offence against the United States and we as a state have nothing to do with it. I understand the gentleman from Wood also takes that position and I am satisfied there can be no dispute on this question. I only design to suggest, without entering into argument, the propriety of; our proceeding and calling and defining the offence, say by whatever name the Convention see fit. Call it - and it is perfectly competent that we may call it - treason. We may give it any name we like. And when we define a certain offence and say that offence shall be known as treason against the state and punished as prescribed, then it is treason. We have made it so, although it cannot be of the same character and description as that defined by the government of the United States thus it is unnecessary to argue the question of names. In that of itself there is nothing which should occupy our time.
I therefore am opposed to striking out because that would preclude us, as I understand, unless there are amendments to be offered, from prescribing the penalty and defining the offence that we design and which should be prescribed in the Constitution.
MR. BROWN of Kanawha. Mr. President, if I understood the remark of the gentleman from Wood a moment ago, he had rather abandoned the ground he assumed yesterday.
MR. HALL of Marion. I wish to make a suggestion. I do not claim to be any more quiet than the rest, but I propose we form ourselves into a Committee of the Whole and that we keep our feet more quiet so we can hear - into a Committee of the Whole to be quiet.
MR. BROWN of Kanawha. The proposition now is, to insert in the Constitution a provision declaring what shall be treason against the state. We are not here to deal with treason against the United States, to alter, amend or reform the Constitution of the United States. That is an instrument established by pact. It is an instrument that cannot be violated or broken nor amended save in the way it itself prescribes - save by the powers that created it. That fact growing out of the very nature of its existence as a compact. We are determining what shall be treason against a state. If there can be no such thing as treason against a state, it would be idle, it would be actual stupidity, to put in a provision in the Constitution declaring what treason is against the state. Now, sir, I shall not attempt to repeat the argument I urged upon the house last evening.
The member from Kanawha being apparently about to read, the Chair interposed.
THE PRESIDENT. Before the gentleman from Kanawha came in the question was raised to what extent a member might read in the course of remarks to the Convention. I believe it is a very well established principle in all parliamentary rules that extensive reference may be made, authorities quoted and so on, but not read to any extent. Objection has been made here to lengthy reading this morning; and because the Chair was called upon to rule upon that objection in the gentleman's absence, he now mentions the fact just for his information.
MR. BROWN of Preston. I will endeavor to quote within the rule of the Chair. I will not trouble the house with reading any more than three lines from the code declaring that treason is:
"That treason shall consist only in making war against the State or adhering to its enemies."
That is the law that has stood on the Statute Book since the 9th Henning Statutes at Large, I believe. I do not know the number of years before the Revolution. And it has been the law ever since.
MR. PARKER. Seventy-six?
MR. BROWN of Kanawha. Yes, sir.
MR. PARKER. Ninth Henning cannot be a long time before seventy-six.
MR. BROWN of Kanawha. Is not it? Well, it is a very old statute.
I desire to read just two or three lines from the Constitution of the United States:
"A person charged in any State with treason, felony or other crime who shall flee from justice and apprehension in one State shall, on demand of the executive authority of the State from which he fled be delivered up to be returned to the State having jurisdiction of the crime."
Now, the gentleman from Wood reads us authority yesterday evening, citing Judge Story, that a state has no jurisdiction whatever over treason committed against the United States. Well, sir, here this Constitution provides that the governor of the state may demand from the governor of another state any individual charged with treason in this state where there is jurisdiction over that crime of treason. And he shall be delivered up by the Executive of the other state. There is a provision in the Constitution recognizing expressly that treason against a state may be committed over which the courts of that state have jurisdiction; and the testimony of his authority is that the courts have no jurisdiction over treason against the United States and to secure the right on the part of these states, to have the party delivered up. Then we have the authority of the judges of our own State, the Constitution of the United States, the highest authority that can be reached, and the authority of Judge Story that you have no jurisdiction of treason against the United States to show that there is such a thing as treason against the state and that it is the only way you can punish men or preserve its integrity. Rob a government of the right to punish treason against itself, and you strike down the government. Take from the United States Government the right to punish traitors and you have nothing to do to tear it down. Take from the state government the same right and it is at the mercy of any one. It is the very life of the state government, is the right to demand the duty and allegiance of the citizens and compel by the punishment of death the performance of that duty.
Well, sir, when everything concurs so plainly in this case, we can have no hesitation about the fact of our right to put it in the Constitution. The only question is that of propriety.
If you undertake to carry out the letter and hang every man guilty of treason by open rebellion, or by giving aid and comfort to the enemy, you involve such masses of individuals in the one crime as make the law a dead letter. By this clause in the Constitution, we indicate that the legislature may discriminate between grades of this crime and provide punishments to correspond with these grades of the offence, and that you may mitigate it until it will be so abhorrent as that you will fail to execute it; and thereby you will secure a compulsion by many individuals in return to their allegiance that you could not otherwise have done. I say therefore it is a wise provision to be inserted in the Constitution as an indication to the legislature of its duty; for it is only in times that have engendered this new idea in regard to treason. Heretofore when a man started out as a traitor you crushed it at once and had simply to hang him up to deter others. No great injury was done, and that was suppressed. But now you have hundreds and thousands involved in the difficulty and to pass a law looking to the destruction of all is monstrous. It is right therefore that this very provision, while it maintains the right of the State to punish treason, to declare it an offence, also indicates the mode by which it may be mitigated to suit each case, and thus mitigate to a great extent the evils. Your legislature assemble and under the pressure of circumstances they run wild. But with that provision in the Constitution they are restrained and the way is pointed out; the distinctive features of the crime are given; and they will follow in that beaten track.
MR. VAN WINKLE. I do not know that I can add anything to what I said last evening on this subject; but I am satisfied that I either failed to make myself understood or the gentlemen are giving a much wider range to the question than there seems to be occasion for. Now, sir, we are not here sitting as a court of justice to interpret the law; we are not only making law but making fundamental law; and the question does not arise with us whether the states - every one of them, if you please - have in their Constitution or on their statute books laws for the punishment of treason. The question is whether they are properly there. And while we may admit our incompetence as gentlemen please to grapple with questions of that character, yet they are the identical questions which we have to meet. The opinions of learned jurists directly to the point would, of course, have great influence here. But the opinions of jurists who are discussing an entirely different question, or whose attention has not been drawn to the precise point mooted here, are of course of very little value. You may read from Mr. Wharton, whose book is a mere compilation, or you may read from other authorities or state constitution in this Union, but unless the laws in those books were put there with a direct view to the question that is agitated here, it cannot, of course, have much influence on our decision. The relative powers of the United States and the several states were not, it is very probable, understood so well at the time the Constitution was made as they are understood now. It is very evident that men in making that Constitution - as we shall find perhaps in making ours - had not comprehended, or could not at the moment comprehend, the vast ramifications in which everything of this kind runs. We are endeavoring, sir, of course, to provide for all possible cases that may arise under the Constitution we are making; but, sir, any man who flatters himself we shall attain that end would be claiming more for our human nature than human nature generally has been able to accomplish.
Now, sir, there have been long and elaborate arguments and decisions or opinions of courts delivered on various points arising between this supposed conflict of state and United States jurisdiction. It is, if I recollect right - and gentlemen must not hold me for the strict language of the law-books when I am quoting from memory - but there has been a decision which excited considerable argument and lengthy opinions that where a power is confined to the general government and it exercises that power the states are precluded. As for instance, a power is given to the United States to make a bankrupt law. The states make no bankrupt laws. Then if they were forbidden by no clause of the Constitution, the states might make one. Maryland had something in the nature of one; but it was found I believe to be contrary to another clause of the Constitution which forbids the impairment of the obligations of contracts. But it was this: that when the general government exercised any of the powers confided to it, the states must cease. I can remember the instance now, sir. It was in reference to citizenship. The United States Constitution provides that the government of the United States may make laws for the naturalization of foreigners. There is a law on the old statute book of Virginia which provides that a man coming into the State of Virginia and marrying a wife here possessed of property shall become a citizen of Virginia; but the decision is express that the United States having passed a law for the naturalization of foreigners, all state laws on the subject are abrogated. Now, I think that is the decision. Now, sir, I want to state this question, as it appears to me. I have not, of course, a right to make questions for this Convention. I have this right, that when I have raised a question here and gentlemen respond to it, I have a right to state it correctly. I did state, when allowed by the kindness of the gentleman from Marion to interrupt him for a moment, that the State of Pennsylvania, if she chooses, may call a riot treason and punish it. The State of Pennsylvania, or any other state, may make even the counterfeiting one of her bonds treason. That is in derogation of the sovereign majesty of the state, and she may punish it. Well, sir, with that we have nothing to do. Here is the question. It has been stated by one of the first writers upon public law that the very worst kind of despotism is a law punishing treason and not defining what that treason shall be. It appears as early as the reign of Mary the English government had defined treason by a statute passed in that reign; and those very words had received their interpretation from time to time in England, when in seeking for a definition of treason the Convention who framed the Constitution of the United States took the words from that statute. They defined treason, but they put some restrictions on it by which it does not go so far as the statute in England. It is not allowed to work corruption of blood, and things of that kind. But they have declared - and we are proposing to declare the same thing - that treason shall consist only in levying war against the United States and in adhering to their enemies and giving them aid and comfort. That word "enemies" certainly implies armed enemies. It cannot mean that because some person abroad is inimical to the United States - that because some person abroad should have his sympathies drawn in favor of this so-called southern confederacy, a person administering to the want of such a person would be adhering to the enemies of the United States, giving them aid and comfort. So that I take it, although I do not speak now from recollection of authority but from the plain language there, that the whole clause refers to war, to armed enemies, to levying war against the United States and adhering to their enemies, giving them aid and comfort.
Now, sir, the question arises that I endeavored to lay before the Convention I should have stated last evening that the committee - although this appears under the head of their report - when the section was passed upon in committee, the views of the members of the committee were divergent, as they are here. But it was concluded that the best way was to report it to the Convention to state our views and let the Convention dispose of it.
The question is this: can the levying of war with the purpose of overthrowing the state government - for nothing else is treason than the overthrowing of a government - can this be treason against a state, or is it simply treason against the United States? Now, that is the question - at least the question which I wish to raise - the doubt which is on my mind and which I sought to have the aid of the Convention about. Now, we want no technical definitions of treason nor decisions of courts that had not this question before them. In order to answer the question whether there may be treason in the acceptation of the word which the word receives in this country, we come to the question whether war can be levied against a state that is not war against the United States. Then, sir, the same arguments which I adduced last evening apply and come in. In the very moment that an armed force is put on foot for the overthrow of one of these state governments, it is war against the United States. If an armed force is put on foot for the purpose of obliterating Ohio county, it is certainly war against the State of Virginia. That county is a part of the state; and you cannot attack a part without attacking the whole. These states are integral parts of this Union. That is they are complete parts. They do not hold the relations to it that counties do. But they are the integers that make up the Union, and if you attack one of the states, don't you attack the United States? It appears to me there is nothing plainer. That if you attack any portion of one of these states for the purposes which make treason when it is accomplished you attack the United States. Therefore, no war can be made against a state which is not war against the United States. Now, then, if that is so, then the John Brown raid was unequivocal war against the United States; and had the United States at that time refused to take part in the suppressing of that raid, if their assistance had really become necessary, the United States would, as every member of this Convention must admit, have been derelict of its duty. I do not know, sir, or remember enough of those trials. It got to be pretty much of a farce - to know whether he was tried for treason or murder or both. But I would not hold that as tending to settle this question. The whole thing was done under great excitement, and there was enough to convict him of murder without convicting him of treason. I am indebted to the gentleman from Kanawha for his statement of it. I think, though, indictments were preferred for both treason and murder. However, I don't consider that what was done there would weigh much in settling this point.
But I want to call the attention of the Convention to the question as I have propounded it. Can war be levied against a state which is not war against the United States? If so, then the levying of war under the circumstances supposed is a levying of war directly against the United States. The Constitution declares that the levying of war against the United States is treason, and provides for its punishment. Now, sir, this is not in derogation of state rights, if it is as I have reported it. When the states have surrendered anything to the United States, it is but folly to claim it as a state right. When they have conferred any power on the United States for its exclusive exercise, of course no argument can be drawn or no assertion can be made that it is anything in derogation of the state. Our forefathers who made our Constitution considered well what they were about; and bygiving the United States these powers, they carried out the principal object for which they had assembled. The old confederation had been found too weak for its purposes - -wrongly constructed, made in a hurry during the pressure of war, and it is not surprising that it should have been found defective. The very theory upon which the United States Government was established, and upon which, permit me to say, it differs from every other government that ever was established - for I don't think that even in the South American Republics the principle is recognized to the same extent; and, sir, it was a grand discovery in politics - is that we should have separate state governments, acting entirely within their own sphere; acting directly upon the people within their limits; enforcing their laws - their state laws - by the immediate operation of their administration and punishing for offences against them; operating directly on the people; levying their taxes directly from the people; and doing all these other acts of sovereignty and operating in every one of them directly on the people themselves. When the confederation was set up, it was to operate on the states, and when money was wanted Congress made a requisition on the different states for so much money from each. Well, they paid the money or not as suited them - and it generally did not suit them to pay it. But, sir, when this general government was made by the Union of these states, the principle was engrafted on the Constitution that it will also operate directly on the people. When offences against it are committed, its own officers execute its own laws. When a tax is to be levied direct, it is levied on the people the same as a state and collected by United States officers. The direct tax of 1812 was collected in that way. There were United States assessors, or corresponding officers, and the tax was collected direct from the people. That is the grand distinction between our government and perhaps all others - certainly all others that preceded it. Now, sir, that distinguishing feature must be preserved everywhere; and therefore whenever an offence is treason against the United States, it ceases to be treason against a mere state. And if it is treason only against the United States, the United States only can operate for its punishment. And if we give up this principle, where do we stand? I told you the ground had been taken by the executive power of the restored government that every dollar that was expended by this restored government for the purpose of suppressing this rebellion - no matter where, when, how, under what circumstances, - we claim it to be a debt to be refunded by the United States Government; and upon this very principle whoever aids in levying this war against the United States, whoever adheres to their enemies, giving them aid and comfort, is an enemy of the United States; and whatever is done to put down this rebellion is done in aid of the United States for that purpose. In the same way, as has been already stated, the United States by the Constitution, which deprives the states from equipping armies and ships of war in time of peace, so that a thing of this kind might constantly break out when they were unprepared for it - is to keep both a standing army and ships of war in time of peace as well as war. These clauses which have been referred to show that it is the duty of the United States to suppress any insurrection in the states, whether these are armed riots that break out in the cities, led and controlled by men banded together to effect some purpose, to destroy a flour store in one case or a convent in another, or for some purpose like that - whether these are levying war against the United States, may admit of question. Whether they are levying war, in fact against anybody in the technical sense of those words, is a question. But a parcel of men, with their passions excited, go to work and commit depredations upon the property and persons of their neighbors. When this is the case in the cities, the police interfere and that is the last we hear of it. Some- times the mob is too strong for the police, and then the aid first of state troops and volunteer companies is called in, and if insufficient, as in the Dorr Rebellion, in Rhode Island, and it may be in the Kensington Riots, in Philadelphia, United States troops are called in. But to guard the rights of states, the government is to be the judge in all cases whether the cause for interference has arisen. To protect the states from being invaded under pretence of suppressing insurrection, it is made the duty of the legislature if in session, and if not in session of the governor, to apprise the United States when these difficulties arise.
Now, there may be, as I have already stated, many things which are in derogation of the state government. There might be something - though I think it is hardly possible - that looked directly to the overthrow of the state government and which might be treason and yet not levying war against the state or United States. And certainly we may suppose that these mobs where the troops have been called in to put them down had no well formed idea that they were going to carry matters so far as to overthrow the government; but because their movements are in that direction, they may come to be treason before those who engage in them get through with them.
I think, therefore, sir, that this question is a narrow one, and that is, simply, whether treason, as defined by the United States, can be committed against a state - not whether the overthrow of a state government may not be plotted and acted for and that exertions may not be made to overthrow a state government, but, simply, whether when those exertions are made - when a band of armed men are organized, levied, for that purpose, it does not immediately become an attempt to overthrow the government of the United States itself; because you cannot destroy or obliterate one of the states of this Union without striking at the Union itself; and in the same way the mob that were destroying the property of their neighbors may be construed to be an attack on the state sovereignty. So any attack on the smallest portion of any of the states of this Union is within the principle which would make it an attempt to destroy and overthrow the government of the Union.
So that in any way I can consider it, I cannot imagine the levying of war for purposes inimical to the state which is not at the same time inimical to the United States. And then, if I am right in the principles I have laid down or cited, from others, whenever it is intended for the injury or overthrow of a state it is as well intended for the injury or overthrow of the United States government. The offence is against the United States; and when we get as far as that, when we admit that the offence can only be committed against the United States, then we admit that the United States alone has power to punish it.
MR. BROWN of Kanawha. One word in reply to the gentleman. He predicates his argument on an assumption which I think false in itself and therefore leads the gentleman into continual error. He lays out as his groundwork the proposition that no injury or attempt to overthrow a state government can exist without being an injury or attempt to overthrow the government of the United States - that it must be levying war against the United States. Well, now, let us consider that for a moment.
Some years ago France was indebted to the citizens of the United States which assumed and France acknowledged the debt. After a long negotiation the king of France declined to pay; and General Jackson, who was president at that time, just said if they did not pay he would make them pay. And suppose, now, he had carried it into execution and attempted to make France pay: there would have been no attempt to overthrow the French government but only to compel by physical force the performance of a duty which they refused to do.
MR. VAN WINKLE. Might not the result of any war commenced against the government for any purpose be the overthrow of that government?
MR. BROWN of Kanawha. The overthrow of the government may follow or may not. That has nothing to do with the fact of levying war. It very often follows, but much more rarely than that war exists. Every government in the world almost of any standing in time has had a war and yet has not been overthrown. Parties and governments fight until they get tired and then make peace. War is a thing that can exist without overthrowing the government. Well, now, I only want to show that real, actual levying of war may exist in the case here as well as in the case I supposed. Suppose the State of Virginia, finding herself pressed for money, goes into the State of Ohio and borrows a million or two of dollars. Now, it is a just debt and she owes it. Now, I want to know when Ohio asks for that money how she is going to get it. Has the Constitution provided any way by which she can sue and obtain the money? When the Constitution was formed there was a clause in it which gave the Supreme Court jurisdiction to enforce the collection of debts against the states, but the people of the United States rose in their might and denounced it, and in a short time after its execution they put an amendment in that no suit should be brought and held against a state. - That no state should be arraigned at the Bar of the Federal court or be held to answer a charge of either a state or individual. Well, now, sir, you could not sue the State of Virginia. You could not arraign her, issue execution and collect the money.
MR. VAN WINKLE. I have here the Constitution. Will the gentleman point me out the provisions to which he refers. It only prohibits the citizens of one state from suing another state.
MR. BROWN of Kanawha. Very well, I take that. The citizens of one state, Virginia, borrow of the citizens of Ohio. Now, sir, how can those citizens get their money when they ask for it? The State of Ohio will see that her own citizens are rectified and the State of Ohio will stand by and maintain the rights of her citizens. And they come to the federal courts. The Constitution says they shall not sue the State of Virginia and she cannot be compelled to answer before any tribunal, and she repudiates the debt. Have not states repudiated? But did you ever hear of a suit in Federal court to make them pay? Mississippi repudiated her honest debts because there is no power in the Constitution nor in court that can make her pay. She just declines and stands on her reserved rights. Well, sir, supposing Ohio feeling aggrieved, and feeling the obligation to protect the rights of her citizens, says to Virginia, "If you don't pay, we will make you pay! We will test this question at the point of the bayonet." And they send the Ohio militia over here and undertake the collection by force of arms by taking the property from your farms. Do you call that levying war against the State of Virginia or not? You meet them on the other side with armed force and drive them across your border. And do you say that is no war? Now, sir, can there be more actual war than that made under authority of two state governments and lay waste the country? That is war of the strongest kind, and that is no war against the United States. There is no attempt or no purpose to uproot or destroy or break down the government of the United States. The other states are not embarked in it. Why, if you say that because Ohio comes over and wages war on Virginia that Virginia is a part of the United States and therefore it is waging war on the United States, why, sir, Ohio is as much a part of the United States as Virginia, and therefore it would be the United States waging war on the United States.
MR. VAN WINKLE. It is so now.
MR. BROWN of Kanawha. I maintain it is not so now. It is the United States waging war against those citizens in rebellion against the United States and those only; and its obligation is to defend and protect those who maintain their allegiance to the United States government. But here is a case where war can exist to attempt to break down the government of a state, for they may carry it that far. But then this war of Ohio against Virginia would be no treason. Treason can only exist by hostility of a citizen who owes obligations to this government. And if Virginia should join in that raid from Ohio against their own state then they would be in treason against their government, or aiding their enemies to destroy the state government and be within the dominion of this very provision we are proposing to insert.
But the gentleman argues that whatever Congress are authorized to legislate upon is prohibited to the states - that the Constitution secures to Congress the right to legislate on the subject of bankruptcy and that the courts have held that the states cannot pass a bankrupt law. Now, there are clauses in the Constitution which conferring power on the general government excludes the exercise of any such right by the states because they have granted it away. But there are other grants the states have given and reserved some grants to themselves and they can exercise it. Congress can legislate on taxation, and so can the states. Congress can legislate for the punishment of the passage of counterfeit money and coin of the United States and so can the states legislate to punish the individual who passes the same coin. You find every day trials in your state courts not only for passing counterfeit bank-notes but Federal coin; but in the Federal courts they prosecute men for passing counterfeit specie of the United States; but you never hear of such a thing in the Federal courts as prosecution for counterfeiting bank-notes. Because that has nothing to do with the government. The states issue these bank-notes. The government only prosecutes those who counterfeit its coin, and the Constitution secures the government the right to issue a government currency; so that these jurisdictions legislate on the same thing. They are not in conflict because the state is as much interested in prohibiting the counterfeiting of its currency as the general government is.
Then, sir, the fact that because some act might be in some given case treason against the state and treason against the United States, it does not at all prohibit by the state the same action as may be taken by the general government; and the state in punishing that act punishes it as treason against the state and not against the United States; and if in any particular case a man should commit an act which was treason against both, then he would be liable to be hung by both parties. It would present precisely the case of John Brown that Wise alluded to when he said there would not be much left for the others when he was through with him. The question would be only which would get hold of him first. But there may be a case of hostility and treason against the state that would not be treason against the United States at all. And therefore there may be no conflict of jurisdiction whatever. Now, in that very case at Harper's Ferry the only question that arose about treason against the United States was because John Brown committed his raid inside of the armory of the United States in the territory that had been ceded by the states for the purposes of that armory. He took the arms of the nation and expelled the employes of the government and killed some of them who were citizens of the state outside of that armory and not within the jurisdiction of the United States so there was a case where a man was guilty of both treason to the United States and treason to the state; and he was tried and convicted of treason to the state; and I have no doubt that he would have been convicted of treason to the United States after the State of Virginia was done.
MR. LAMB. Mr. President, I have been very much instructed by the argument, but I must say there is very little of it to the precise point which was raised by the motion that was made whether it was necessary to have such a provision in the Constitution. The State of Virginia, for instance, has had in operation a treason law, which the gentleman from Kanawha cited, ever since 1776, and she has never had any provision of that subject in her constitution. I understood the gentleman from Cabell as quoting from his book that Massachusetts had some provision in her constitution on the subject of treason. That I believe is not the fact. Here is the Constitution of Massachusetts. The quotation he makes is from a law of Massachusetts and enacted independent of any provision in the constitution. So it is in the State of New York. They have the law of treason which was cited by the gentleman from Cabell, but you can find nothing in the constitution of the state on that subject. So it is in the State of Ohio. I have been unable, as I stated before, though I have not looked over the constitutions of all these states, to find in any one of them, so far as I have examined them, except the little State of Delaware, a constitutional provision on the subject of treason. The legislature will have full control over this subject without any provision in the Constitution; and it strikes me it is well to pause here. Are you going to put a criminal code in your Constitution? Where will you draw the line, if you begin? If you involve yourselves in the question of treason, how many provisions have you got to insert in your Constitution defining and deciding whether this or that offence shall constitute treason or whether it shall be punished under some other name. The provision which was inserted in the Constitution of the United States was inserted for a different object entirely from what this provision is inserted here. It was inserted for the purpose of restricting, not of extending, the definition of treason. Where it is inserted in the constitution of any state, it is for an entirely different purpose from what seems to be contemplated by the section now under consideration. It is inserted for the purpose of restricting legislation on such subjects and not for the power of extending it. But if we do insert a provision in our Constitution in regard to the subject of treason, I am, so far as that particular offence is concerned, decidedly of opinion that we should adhere to the old land marks which have stood unaltered for a thousand years and have come down to us from the early days of our jurisprudence and settled an acknowledged principle in regard to that particular offence. The law of treason which is contained in this clause will give rise, gentlemen, if you see proper to adopt it, to many nice questions upon which the ingenuity of lawyers may be exercised. If you will have a provision on the subject in your Constitution, adhere to what has been settled on that subject by the wisdom of ages. For this law of treason as it stands in the Constitution of the United States, was adopted many hundred years before that Constitution was put in force. It has undergone investigation, and has met t)ie approval of the jurists of all times from its first adoption to the present. I do not want to interfere at all in the discussion which has taken place in regard to the question whether the levying of war against a particular state, which is of that class properly under the definition of the term "treason," is necessarily a war against the United States. It may be, or it may not be; but in either event it strikes me the wisest course for us to adopt is to leave our Constitution in that respect, as we find it, without any provision on the subject. If we attempt to increase this particular branch of the criminal code in our Constitution - if we go out in that direction - we will never know where to stop. Mr. Lamb's motion to strike out the 13th section of the report was then put and rejected, by a vote of ayes 15, noes 23.
MR. DILLE. Mr. President, I am free to say, although I voted against the motion to strike out, that there are some things in this 13th section that are not entirely acceptable to me; and I would suggest the propriety of recommitting the section to the committee. It seems to me we might obtain the object better by so doing.
MR. VAN WINKLE. The gentleman can offer an amendment.
MR. DILLE. I am not prepared now to offer an amendment. It was in reference to this grade of punishment. It seems to me that is something that might be introduced by legislation more properly than by a provision in the Constitution.
MR. BATTELLE. Mr. President, I offer this amendment; that this section be recommitted to the committee.
MR. VAN WINKLE. With instructions?
MR. BATTELLE. No.
MR. VAN WINKLE. There is no use in recommitting it unless you indicate in what way they are to revise it.
MR. BATTELLE. If that motion is in order, I would simply move to recommit.
MR. PAXTON. I would suggest that probably the views of members may be met by a motion of this sort; to strike out the second clause. I make that motion, sir - to amend by striking out the second clause - the one beginning:
"Every attempt to justify and uphold an armed invasion of the state, or an organized insurrection within the limits thereof, by publicly speaking, writing or printing, or the publishing or circulating of any such writing or printing, during the continuance of such invasion or insurrection, shall be deemed an adhering to the enemies of the state."
MR. VAN WINKLE. I have already stated that the committee have some doubt as to the propriety of the whole thing but prepared the section. If the Convention decides - as it has - that treason of this kind can be committed against the state, I wish to say that there has been some difficulty in ascertaining what was such an adhering to the enemy, giving them aid and comfort, as should make a person obnoxious to the first clause; and it was the opinion of the committee that what they have there described should be considered such an adhering. It is carefully drawn, sir, as the Convention will notice. It must be an armed invasion, or it must be an organized insurrection, and then every attempt to justify and uphold it during the continuance of such invasion or insurrection shall be deemed such an adhering. Now, sir, controversies constantly arise, differences of opinion are manifested, among the citizens of this country on what are considered by some political measures. Many think this would tend to restrain expression of opinion against, perhaps, oppressive acts of the government which have led to insurrection. That is to say, sir, the insurrection or invasion must be actually on foot; and then I apprehend no one will say, unless it is intended to carry it out to the extent of revolution that it should be in any wise justified or upheld. However great the grievances we may experience under our Republican form of government, we have yet a remedy in the laws. But if that is not ample enough, we have it in the frequent recurrence of elections, in the influence which public opinion is always sooner or later to exert on the government. We have many sufficient remedies without the resort to an armed insurrection or an organized insurrection. Therefore, whenever such an insurrection takes place it ought to be frowned down by every good citizen. However great the grievance, however oppressive the burdens that may have been fastened on us by government, if such should be the case, yet while there is a possible remedy, while by the operation of the laws; by the change in our representatives; by the action of public opinion a remedy may be had, certainly, sir, insurrection cannot be justified. Well, sir, when the insurrection ceases; when the foe is put down; when peace is restored, every citizen is again at liberty, as he was before, to canvas the causes which produced it; to find fault with the government; to condemn the action that he considered oppressive; and to write and speak as fully and publicly upon the subject as he may choose. But while it continues; while the state or country is exposed to danger, as it always is from anything like an armed insurrection within its borders - while that public danger continues, people are not to justify or uphold it in any way. Whenever war is thus levied against the state, the duty of every good citizen, no matter what may have been his previous opinions - no matter how much the man may have suffered from what he considers the oppressive acts of the government, he must join and unite with the government of the country and other good citizens to crush out this rebellion. Would it have done during Shay's insurrection, or the whiskey insurrection, to permit people to justify and uphold that while it continued? - to permit people to write and publish that the government was wrong and the rebels were right? I think not, sir, but if those excise laws in which these insurrections originated were oppressive, there was a remedy without resort to insurrection. But when the insurrection is conquered then the citizens were at liberty, as far as was proper and right, to speak and publish their opinions on the subject.
I think, therefore, that there is a propriety in this second clause, if anything on the subject is retained - a propriety in defining at least so far as what may constitute such an adhering to the enemies of the country as the first clause of this section contemplates.
MR. LAMB. I must confess, for one, I must protest against this second clause. The Convention has entered upon dangerous ground. An armed insurrection does exist. Then the publishing or circulating of any writing or printing that may be regarded as an attempt to justify or uphold that insurrection, is made by this treason. During the existence of this insurrection, the press may find it necessary to criticise, perhaps freely, the measures of the government. They are to exercise that privilege with a halter around their necks. A mere slip of the pen, if a disposition to arbitrary government is to go on in this country, may be construed into an upholding of this insurrection. The circulating of any such writing or printing becomes treason. I tell the Convention that they are treading here upon dangerous ground. I would much prefer, if the provision is to be retained, that we retain it as we find it in the Constitution of the United States. It does not prevent the punishment of a particular offence, gentlemen, if an offense has been committed, that you are not at liberty to call it treason. If it is necessary to suppress publications, it does not prevent you from putting a proper guard on the press that you are not at liberty to consider the publication of an article, or the handing of the article to another man to read after it has been published - that you are not to regard that as treason. If that can be construed into an upholding of the insurrection, I think it would be very unfortunate for the Convention to adopt this clause.
MR. BROWN of Kanawha. I think the gentleman who has just taken his seat has misconceived the object and effect of this clause. I regard this, sir, as the citizen's safety rather than the toil into which he may inadvertently fall to his own ruin. The first clause declares what treason is: that it shall consist only in levying war against the State, or in adhering to its enemies, giving them aid and comfort. Now, sir, suppose a case. Here is an insurrection, or here is a rebellion, in the State. I am an individual about to take action, and I read there that treason is levying war. Well, I can understand that. I have some general knowledge of what levying war is and I can keep out of it. But then the second - the adhering to its enemies, giving them aid and comfort. That puzzles me and I do not know what I am doing that gives aid and comfort, and cannot. There are so many things that a man may do which in the eye of the law, or in the language of the law, as it stands, or in the Constitution of the United States using the same language. That treason is making war or giving aid and comfort - that the question is to the citizens, he wants to know what it is that constitutes giving aid and comfort. If you tell him, he will not do it. But if you leave it to his ignorance, he doesn't know until he finds the halter around his neck and arraigned before a tribunal for doing an act which he did not know at the time was giving aid and comfort. Now, this undertakes to explain to the citizens, telling him what is aid and comfort! "Every attempt to justify and uphold an armed invasion of the State, or an organized insurrection within the limits thereof, by publicly speaking or writing or printing, or the publishing or circulating of any such writing or printing during the continuance of such an invasion or insurrection shall be deemed adhering to the enemies of the State." It explains to the individual just exactly what the words "giving aid and comfort" mean, that he may understand what the treason is; that instead of misleading and getting him into difficulty it is the way to keep him out of it. I have no doubt thousands in this state have already asked themselves, what is this giving aid and comfort that I may avoid the crime? Why, you go to the courts and the lawyers and they will tell you it means almost anything and everything and that the individual can scarcely turn hither or thither without committing some act or offense under this statute, without knowing what it means. Now, this section just tells him what it is, and if he keeps out of that he will know how to keep out of the clutches of the law. Now, there has to be legislation to carry this into effect. Therefore I vote for this to give the citizens an intelligent definition of what the crime of treason that he is to commit.
MR. LAMB. The gentleman will excuse me: this second section is cumulative, to borrow a word from the law book. The first clause declares that treason against the State shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort. That clause is not limited by the second clause at all. You retain all the difficulties of the present treason law, if there are any; but the gentleman knows, and I know we cannot get a very precise definition of what is adhering. This section is specially directed at the publishing or circulating of any writing or printing which may be construed as an upholding of the insurrection.
MR. STEVENSON of Wood. Mr. President, I have but a word to say in reference to this matter. The Convention having decided to retain the section, it seems to me the next best thing is to get it as perfect as possible. And I am very decidedly, sir, opposed to retaining this part of the section which it is proposed now, by the motion of the gentleman from Ohio, to strike out, and for the reasons urged particularly by the other gentleman to my left from Ohio. I think if there is any fact that the world has learned and ought to profit by it is that it is dangerous to hang any loose words about this subject of treason - anything that is capable of receiving a double meaning or a different interpretation from that conveyed by the words precisely as they read. And I think, sir, that this paragraph, or number of paragraphs, proposed to be stricken out are capable of different interpretations. If we were certain that no abuse would be made of this portion of the section under any circumstances, it might be well enough to retain it; but I think it highly probable, sir, that it will be abused to the same extent that ambiguous language has been abused on this subject of treason if not in this country at least in almost every other country on the face of the globe.
There is another matter, sir, I wish to state here. I do not know that it would be strictly speaking to this amendment. I believe it would. That is, if we are to retain this section on the subject of treason I would like to see the wording of that same provision in the Constitution of the United States on the same subject added, as the crime is one that is punishable with death and proposed here to be punished with death, and if not, with other penalties that are very severe. I should like that clause added. I forget precisely the words, but the purport of it is that before the person can be convicted of treason some overt act shall be proved by two witnesses or the person shall make an open confession in court. I think that necessary to protect the rights of citizens when party prejudice should run high or strong local or sectional excitements be produced in the community.
I am in favor of striking out the part proposed by the amendment.
MR. PAXTON. Other gentlemen have already stated the reasons that influenced me to make the motion. I will only add that I object to this clause not on account of its entire novelty but because it appears to have special reference to the present peculiar condition of things. I do object to introducing into our Constitution anything that appears to have in view the present peculiar and unfortunate condition of things in our country.
The object of the Constitution is simply a declaration of plain, fundamental principles, and leaving to legislation to carry out the details.
MR. SINSEL. Mr. President, I am opposed to the whole section. I voted in favor of striking it all out; for it is well known we owe allegiance to two governments, first to the government of the United States and second to the state government. It seems to me from the language in which this section is couched that the two governments may come in conflict with each other. The question involved in our present national difficulties is only that the states claim to be sovereignties and the United States claims to be sovereign. Well, now, this is the way it stands here, just as the present insurrection has proved. Here is the government at Richmond claiming our allegiance. With a clause in the Constitution like this, if they could catch us it would hang every gentleman in this Convention. We owe, they say, allegiance to the State of Virginia and we are now adhering to the enemies of the state. Now, if they had it in their power to catch us, what would be the result? Well, if this section is retained there ought to be an exception showing that the armies of the United States should not be regarded as the enemies of the state, as in the first clause here of this report, the first section, we have adopted this: "The State of West Virginia shall be and remain one of the United States of America. The Constitution of the United States, and the laws and treaties made in pursuance thereof, shall be the supreme law of the land."
THE PRESIDENT. The question is upon striking out.
MR. SINSEL. There is a treason clause in the Constitution of the United States we are incorporating in our Constitution and it does seem to me it will be sufficient to meet every emergency that is likely to occur.
MR. HALL of Marion. Allow me to ask the gentleman from Taylor what worse condition we could be in under that provision of the Constitution than we are in now by the statute it is proposed hereafter may pass in reference to this thing - whether we have not statutes on the book now that would hang every one of us without any constitutional provision; and what he proposes to ask here is to keep it out of the Constitution and leave the legislature to hang us. I would as soon be hung constitutionally as by legislation.
MR. BROWN of Kanawha. The gentleman on my left (Mr. Sinsel) seems to be somewhat alarmed at the apprehension of our neighbors over at Richmond hanging us. Now, sir, whether we would be hung for treason under the law of Virginia would depend entirely on who the judges were. If they were our foes, they certainly would hang us. But just reverse the case and suppose we catch them and we have the same identical law to try them by. We maintain we are the State of Virginia and they imagine they are. If we catch them and it is tried and decided before one of your judges, he decides that they are guilty of treason against the State of Virginia and the law fixes the sentence of death. Now, the question all depends on the judge and we claim as much to be the state as they. They are in precisely the same category as he supposes ours if they should catch us. Why, what is it that gives us authority here today but this state government that you are now upholding and maintaining? Against which treason can be committed just as effectually, unless it is a bogus government. Now, if you acknowledge your whole concern is bogus, you ought to abandon it at once. But I understand we stand here maintaining the fundamental principle that we are the only true, lawful and legitimate government, and that these men whom he seems to think would hang us are only usurpers of the government and attempting to usurp the rights and freedom of the people and that they are amenable to the law he is seeking to try us by. It is this very doctrine of treason that secures us against the attacks and violence from this very quarter, and it is the only manner you can maintain and uphold the government you are embarked as the rightful one. I do not acknowledge that we are traitors either against the Union or against the state, but that we are here lawful citizens of both, and not the perpetrators of a crime, engaged in a high and holy cause in restoring the government and maintaining the principles of freedom.
MR. PARKER. Mr. President, it seems to me that the second section here which is proposed to be stricken out is a particularizing explanation, as was remarked by the gentleman from Kanawha, which it is certainly well to give to the people. The first sentence, copied from the Federal Constitution, says the levying of war or adhering to its enemies, giving them aid and comforts - either of those will constitute treason. Well, now, adhering to the enemy, giving them aid and comfort, is a matter of uncertainty in the minds of a great many people, and this explanation thus particularizing would enable them to know how to avoid the offence. It is not cumulative - that is this second clause. It is included in adhering to the enemy, giving them aid and comfort. This speaking and writing is giving aid and comfort to the enemy. And I think the opinions of the eminent judges throughout the country, so far as they have given their opinions, are to that effect. Well, now, if there is an armed invasion - in reply to my friend from Taylor - an armed invasion is necessarily a hostile invasion. It is a trespass; and more than that, it is an aggression - an armed aggression upon the constitutional rights of our state. Therefore, it seems to be not practicable that there could be a marching in of Federal soldiers but would be legitimate. They come for a legitimate purpose, to protect the Federal law and the Federal Government. That is not an armed invasion but it is a rightful coming upon their own soil if within the scope of their power. That seems to me would cover an armed invasion. It must necessarily be a hostile, warlike aggression on the rights of the State. So also is an organized insurrection, which implies an armed insurrection an association of citizens of Virginia - an association organized, armed, rising up against the government, the legitimate and due execution of the government of Virginia. Well, now, where either of those exists, speaking or advocating certainly can do very much. What I mean is it is well to particularize what giving aid and comfort is, because I believe there are a great many people who do not know anything about it. Well, as I understand, these particular things shall be deemed such an adherence, as to cover the aid and comfort. I do think where we have such treason going on as we have now we should put it on the book on clear plain letters that everybody can understand it; and then if they violate it, punish them. I shall, for these reasons be against striking it out.
MR. SINSEL. I just want one remark. The gentleman from Kanawha goes upon the supposition, founds his argument on the supposition, that the state government will ever remain loyal. Now, if they were to do that, I would have no objections to the section; but what has been the history of the past year? It is the disloyalty of these governments that has brought us into all this trouble and danger. I deem the government at Wheeling as the government of Virginia; but we were without it for a while. What position did we occupy in Taylor county before this government was restored and when the armies of the state were there threatening that they would hang us if we did not shut our mouths. What did the commonwealth's attorneys do? But go around and tell us if we talked so and so it was treason against the state and that before ten days we would be thrust into prison for it if we didn't close our mouths. I admit if the state government was always to remain loyal we would have nothing to fear from that section, but the reverse of that has proved the case.
MR. LAMB. It is very seldom I occupy the floor twice on one matter; but I do feel an interest in the Convention coming to a proper decision on this subject. I do feel that they are treading here on dangerous ground. As to the advantage which is supposed to exist in this section, that it is a definition of what is meant by adhering to the enemies of the commonwealth, if you want to accomplish that advantage, gentlemen, you have got to insert a little book here in addition to this. There are a hundred, a thousand, acts that are included in these terms that may need definition and decision just as much as the one act that you see proper to add to the long one that already exists. The difficulty that strikes me here in this is: during the existence of an armed insurrection against the government, any opposition to the measures of that government may be considered as upholding the insurrectionists. How are you to distinguish? The government in the suppression of this insurrection sees proper to adopt a certain set of measures which we are utterly opposed to and we do everything in our power to defeat those measures. The government will tell you, gentlemen, that in taking this course you are upholding insurrection. How are you to distinguish between an opposition to measures which the government has adopted for the purpose of suppressing that insurrection and acts of upholding that insurrection? If you publish anything containing too free a criticism of the acts of the government are not you running a risk of being considered to have published something that upholds this armed invasion or this organized insurrection? If you improperly oppose, gentlemen, any measures of the government that are intended this insurrection, is not it in fact upholding the insurrection? These are the risks which we are running by introducing this clause. The gentlemen of the Intelligencer, the gentlemen of the Press, must be careful with this clause in existence how they criticise, or denounce, if you please, any measures that the government may adopt for the purpose of suppressing the insurrection. Even the circulation of an article that may be construed so will be perilous. If I, having got a copy of the Press that contains an article liable to this unfortunate construction - if I hand it to my friend from Taylor to read, I am guilty of circulating an article that may be construed to uphold this organized insurrection.
I do not think, Mr. President, in any view that this section is proper. And striking it out doesn't prevent your legislature from providing any punishment that may be necessary. You are, in fact now, gentlemen, undertaking not to make a constitution but you are undertaking to legislate in regard to this matter. Leave it out, and if any punishment is proper or necessary the legislature can still provide for it. You run no risk on that side of the question. You are running very great risks on the other.
The difficulties that have occurred to the gentleman from Taylor also occur to me. Yet before I vote on the question, I should like to have it explained. It has not yet been explained to my satisfaction. Suppose, sir, that a law of the United States shall be resisted by citizens of the State of West Virginia, and the United States to secure the execution of its law sends in an armed force, are we authorized to resist that? Have we not already provided that the laws of the United States shall be the supreme law of the land? And if we attempt to resist that invasion by forces of the United States, are we not guilty of treason against the United States? And then if we do not resist - if we encourage it; if we give it any aid and comfort; if we attempt to justify and uphold it - are we not guilty of treason against the state under this provision? Which horn of the dilemma shall we take? Why, just as we are doing now. We will take the strongest. We will take that which we believe to be the supreme law. The two will conflict.
I am not willing, I believe, sir, to vote for the provision as it now stands. That is, I will vote for the motion to strike out unless I can have it explained how we are to avoid coming in collision with one or other of these powers.
MR. HALL of Marion. I confess, sir, that I have not made up my own mind on this question and I do not rise with a view of arguing it. It is a very difficult matter. As the gentleman from Ohio says, it is dangerous ground, when we speak of trammeling the expression of free thought and free opinion by a free people. I do not labor under the difficulty of my friend from Harrison and my friend from Taylor. I do not think we are to legislate or so arrange our laws as to leave loop-holes to do the very thing which the laws contemplate shall not be done. I want no way of escape from anything under the language of this section and we should leave none. If we are to leave the door open for insurrection against the government we then destroy the government. And when such a case occurs as suggested by the gentleman from Harrison - when we are placed in a position where one part of the state maintains they are the government and we maintain we are the government, as remarked by the gentleman on the motion that preceded this, we are placed in a position then of being liable to be hung either by the forces in the east or by those in the west. That is one of the things that no legislation can free us from. We are placed in that position without any Constitutional provision. Now, I ask - I suggest this thing because I really want to elicit information that will satisfy my own mind: suppose we adopt the suggestion of the gentleman from Ohio and we make no provision whatever in the Constitution for the suppressing, trammeling or restricting the press or persons, and we leave that whole thing open to the legislature. It was so under the old Constitution; and eastern Virginia a long time since, looking to the fact that our interests would drive us some day to separate ourselves from her, went to work and prepared the legislation - she dug the pit into which she has now fallen in order to prevent any uprising or any government looking to that end of this country. Now, suppose we strike it out. What trammel have you on the legislature that they will not do this very thing? You leave them without any restriction of power; and they may make any provision they may be pleased to do and place you in the same position that you are to be placed in by incorporating this section.
But then it occurs to me that there is a propriety, as I remarked on the former motion, in these matters that are so difficult and that are to be acted on when the public mind will be so much excited, when there seems to be no sober intelligence left to manage and control - there is an eminent propriety in our fixing land marks and saying to those who are to be called to legislate "Thus far shalt thou go and no farther."
As was remarked by the gentleman from Kanawha, it is for the benefit of the people. The enforcement of all penalties looks to the object of preventing crime in the future. When we prescribe in our organic law, which will be a permanent mark, not to be changed by every year's legislation - when we prescribe and define the penalties and describe the character of the offence that shall constitute a felony, it stands then as a warning to every citizen and he is notified that that is forbidden matter and he is warned at his peril to abstain from it. I regard that as a benefit to the people - a warning, notice and definition and it avoids that old objection to the laws that were posted so high that they could not be read by the people for the very purpose of interpreting them.
These are thoughts that I have on this question. I confess I have yet my difficulty what we ought now to do notwithstanding these ideas. I do not know whether under all the circumstances it is judicious for us to retain or reject the clause. But we cannot certainly, as would seem to be indicated by my friend from Taylor, and suggested by my friend from Harrison, leave the doors open simply because it may be in our way; because whenever these things occur - whenever circumstances like the present arise, we must have laws; they must be enforced; and if the government, as the gentleman from Harrison says, becomes disloyal, we cannot go to work and legislate to adopt remedies against that. Whenever that thing occurs, the majesty of the people is their only remedy. They have got to take the responsibility of acting and act, not in derogation of law, in violation of law but by their strong arms to thrust from places of power those who are trampling on that or upon all law. I must insist that whatever we do or do not do, we shall not provide any way of escape for any parties who may place themselves in a position of rebellion against the State.
MR. CALDWELL. This is a very grave and important matter, sir. It occurs to my mind that the chief objection to this portion of section 13 which it is proposed by the gentleman from Ohio shall be stricken out, is an attempt to declare what acts shall be deemed an adhering to the enemies of the State. Now, sir, as it has been truly observed there might be very readily conceived in the mind of any member many other acts than those named in the resolution that would be an adhering to the enemies of the country. Therefore, it has occurred to me, sir, that by striking out all after the word "thereof" - that is to say I mean the words "by publicly speaking, writing or printing, or the publishing or circulating of any such writing or printing," that the particular objection made by the gentleman from Ohio, with so much force, might be obviated. It would read then that "Every attempt to justify and uphold an armed invasion of the State or an organized insurrection within the limits thereof during the continuance of such invasion or insurrection, shall be deemed as adhering to the enemies of the State." It occurred to my mind the objection might be obviated in that way. But I confess it is a very grave and important matter; and that we may have further time to consider it upon proper principles, I move, sir, we now adjourn.
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Chapter Eleven: First Constitutional Convention of West Virginia