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 horses the full value of them. It is so here on all kinds of property. If we take the population, it will give us a large excess that we have paid towards the current expenses. We are to pay our just proportion of the current expenses of the government. Now if we have been paying on this under-valuation in the east, if we make the population the basis, we have been paying a great deal more than our just proportion of the ordinary expenses of the government and hence there would be a large balance on that score now our due. But suppose we take the valuation; well, it is to be a just valuation. The word "just" which the people have ordained and put in there, means just valuation, just proportion. Now, I say to put it on the valuation of property there is an excess in our favor, because a just valuation will require, of course, that property will have to be assessed up to its value. The effect will be it will raise their valuation on the east side of the mountains very much; so far as the valuation of the negro is concerned, nearly double it. As that is raised up to its proper standard, of course, their proportion of the ordinary expenses of the government is raised up just as it is raised when we take population, per capita, as the basis. Precisely. It seems to me very clear that it would bring us to that conclusion, and that the legislature of the mother state if we shall be fortunate enough to get set up for ourselves she must be bound by this ordinance in that settlement. Now comes the question of what has been expended. I merely mentioned this as touching the ordinary expenses of the government. Now, how much has been expended in our territory? I know it is very little.
THE PRESIDENT. The Chair would remind the gentleman that he should confine himself as near to the subject as he can.
MR. PARKER. I will come to it in a moment. Every gentleman knows what has been expended. Therefore it seems to me that in taking what has been expended and then crediting us with all the taxes we have paid and deducting our fair proportion of what would be the ordinary expenses of the state government that it must leave a large balance on settlement due from the old state to the new.
The gentleman from Kanawha spoke rather lightly of my humble efforts to keep out Allegheny. I did it and that on the principles there laid down. I kept from the new State, which we should inevitably have had to pay, seven millions. I find that sum was expended there, and the expenditure would have been of no value to us at all. If the gentleman is proud of his efforts to have that seven millions saddled on the new State, I have no reason to be ashamed of my effort to prevent it. But that I care not for.
Now the particular question, being the amendment of the gentleman from Kanawha, I was for striking out this bank stock. We must have some money to get along, and it will not do to give everything to the school fund. We must take care of other things if we expect to get along with our new State. Many things are wanted; cash is wanted. There is no doubt you are right in fostering the free public schools, and we cannot do this better, nor better provide for the future growth and support of the State, than by devoting the amount to be derived from these bank stocks as a permanent school fund. On looking the whole matter over I was first impressed the other way, before I had made the examination which I had adverted to. I thought we were going to be short and could not spare it. But in view of the facts stated by me, I feel it will be my duty to vote for the amount of the stock, which amounts to about a half million, being appropriated as a permanent school fund for the new State, and do think it will do us more good in Congress - increase our prestige there and in fact everywhere; that it is the best thing we can have is that placed in our Constitution.
MR. BROWN of Kanawha. I desire to confine my remarks to the simple question of striking out the words "or other corporations" in the 6th line. My motive is that, if it stands here it is a blow directly at the whole system of internal improvements, that it is, in other words, fixing here a direction given to the proceeds of all works of internal improvement, which would have the effect of preventing the State from ever embarking in it and thereby leaving us a State of mountains land-locked until the wealthy people should endeavor to find a way out. Now, sir, one of the very operations, I feel one of the wrongs, under which the western people have groaned for long years past has been that we have been denied the privilege of appropriating the proceeds of our taxes to our own internal improvements, levied on us and spent in the east, and our western portion of the state is now where it was fifty years ago, standing, sir, in the forest, and although the wild man does not tread the hills the white man has not yet been able to clear the fields. I wish to see in this State instead of a constitutional law prohibiting the State from exercising its power to develop the resources of the country, I wish to see this exercised for the very purpose of entering into that forest and opening to the country the resources that are here, lie hidden, locked up. And I confess it does grieve me to see the opposition coming to the system from those gentlemen who live along the lines of the only railroads in the western part of the state; that those who have received benefits and have sections of the country developed by internal improvements shall be the first to forbid in the organic law the state every right on the part of the state to open and develop the resources of the state. Adopt this system and where does three-fourths of the territory of the state find itself? Without any works of internal improvement, without any hope of obtaining any, without the means themselves to make it, with a country rich in all that constitutes wealth if only brought to light by the fostering hand of the state government. It is upon the simple question that this looks to the locking up the Constitution of the State against developing the resources and wealth of the State by internal improvements, that I wish it stricken out. I hope that every gentleman that represents any section of the state participating in the blessings that they have been bearing their portion of the burdens of the whole state will stand by me in that effort and to stand there also when the question shall come up on taxation and finance; to strike out in that section the very similar provisions that are to be made to manacle the State before it starts. I shall not enter here on the discussion of the other topics; I only seek to strike out the clause of this section for the reasons I have indicated.
MR. VAN WINKLE. The gentleman is under a misapprehension if he supposes we have ever received one dollar of state money - if our railroad ever got one dollar. We have sunk our own money - absolutely sunk - in our quarter in the Baltimore & Ohio Railroad that is now getting to pay something. But as for our own railroad, we have never had one dollar from the state; and it was with the greatest difficulty we could even get the privilege of building it with our own money. Every gentleman knows how long the east resisted every effort of the west to get a charter authorizing the Baltimore and Ohio Railroad to come west of the mountains. As to the improvement of turnpikes, I think that thing has been about as fairly distributed in one section of the west as in the other. As I have said certainly fifteen or twenty years must elapse before the State may be able to appropriate one dollar for such purposes however much disposed. Certainly a state that starts out loaded with debt cannot expect to; and if the gentleman from Cabell is right in his figures - and he is, no doubt - 1 underrated that debt instead of over stating it this morning. He has called to my attention the facts that we have about four hundred thousand inhabitants and are about one-third of the state.
MR. PARKER. Three hundred and forty-eight thousand.
MR. VAN WINKLE. Well, sir, if the debt is to be apportioned according to white population - and the chances favor that mode - we have about one-third of that debt to shoulder. They estimate it at thirty-four millions January 1, 1860. The interest on the same is $1,008,000, a year and a good deal unpaid interest since last fall - perhaps three payments. There is another million at least of that debt already. And that interest will go on, and before we can get this new State into operation three or four millions of interest will be added to that debt. Where is the use of talking about appropriating for internal improvements when we commence with a debt as heavy as we can stagger under? When I showed that Pennsylvania, with a debt not so large as Virginia's, had to repudiate. The debt of Pennsylvania at that time was $44,000,000, and she had paying works of internal improvement to show for it - which we have not. Her population was much greater. The consequence is that Virginia has been hovering over the volcano; and even if it had been nothing but a financial panic or disturbance, such as we had in 1837-8, Virginia might have been in the same situation as Pennsylvania was at that time. Then what is this State, in its unprepared situation - without public buildings, which have to be provided, and many other things - is it possible that she can go on and raise money by taxation to be applied to internal improvements? To me, sir, the idea is most preposterous that within twenty years such a time would arrive when she could with justice to her creditors appropriate one dollar for any such purpose. It is an additional reason why we should seek this separation that we could manage our affairs better; but we must acknowledge, to ourselves at least, that we start with a heavy debt. I am not deterred from pursuing what we are doing here, going on and building this Constitution, and asking its adoption by the people; I am not deterred from asking the assent of Congress, by this. I am more than ever impelled to pursue and act and succeed if we can in erecting this new State; but I am not going to shut my eyes, as many gentlemen have been doing ever since August last to the fact that it is no child's-play setting up a new State under the circumstances that surround us. There is going to be no child's-play for some years after we get into operation to maintain its credit and standing. It will need the united exertions of almost every citizen if we are enabled to maintain ourselves at all without repudiation. I do not mean by that term the actual denying of the debt, the saying that we will not pay it; but I look to the possible circumstances of being left unable to meet the interest on it as it accumulates. Taking that debt at even the low amount of six millions, as I stated it, take the taxation that will be rendered necessary, if it is to be done by taxation, to buy our public buildings and put the new State into operation; take our annual outlay for the maintenance of such government as we must have, the taxes which will inevitably come from the national government, and you will see at once that our people will be harassed enough by taxes without paying anything to it unnecessarily; and as I said before, we will be utterly unable to do any such thing.
Now, sir, since I am up, I have read from the present Constitution of Virginia in which they say that if any of these stocks are sold, they shall go to the sinking fund which is formed for the redemption of this debt. If there can be a specific pledge of anything, it is to be found in that section of the constitution. The legislature here is still the Legislature of Virginia. Imagine for one moment that every part of Virginia is represented. If you obey this provision here the plainest dictates of duty, of interest, would lead them to refuse their assent to your Constitution. And I can tell gentlemen that perhaps there may be some other influences that will be attempting to get things into this Constitution that will not pass that body. They have duties and responsibilities to the whole State of Virginia, and we must satisfy them that we are not doing injustice to the whole state. Looking to Congress, we shall perhaps have the slavery question to contend with. We shall have some refusing on that account and some on account of what they will call setting a bad precedent of allowing states to be cut up and divided and bringing a disproportionate representation in the Senate. Remember our State will claim as many senators there as New York with its four millions. Again, others may think it is setting a precedent that may induce other old states to separate its territory with a view of getting more influence in the Senate. If the question comes up between east and west, well then we come up here, as it were, applying the means that are intended for the payment of this debt to another object. And there is New York with her fifteen millions of interest in the debt of Virginia; then comes the northwestern states with their banks holding for the securities of their people these very bonds of Virginia as security for the circulation of their banks; and if you go to do anything of this kind, there will be some more votes against you. Now, just combine all these elements of opposition when you go to Congress, some on one account, some on another - but a few in each case perhaps; but in that body, which consists now of 244 or 246 members, it does not take a great many votes to defeat it; and if you array against you eleven or twelve states you would be defeated.
These things, sir, have got to be considered. This thing is not going right through without difficulty. We must conform this Constitution, as nearly as possible to the things around us, and when we go before these bodies we must endeavor to get before them in such way that there will be no real tangible objection to the Constitution we are forming. If we do not do that, if we are careless about that, if to carry out any private views or any public views we do what may breed dissatisfaction in either of these bodies, why, sir, our Constitution is rejected and assent is refused, and we are just where we were before we began this movement. Now, I ask gentlemen to examine for themselves; to look into this question seriously and steadily. First, whether the State is pledged by the Virginia constitution against any such depository of these funds or property? If it is, that ought to be sufficient cause. If we set out in the very beginning by exercising bad faith towards the creditors of the State of Virginia, who are our creditors - who would be - we should be condemned in the public estimation; and of course we need look for no favors - if it is a favor - from Congress.
Now, I would ask the attention of the Convention again to the precise terms of the provision of the Virginia constitution read by me directly after the recess:
"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."
Now, that sinking fund is constituted for the payment of that debt. Under this very Constitution the legislature are pledged annually to put one per cent of the debt as it existed at the time that Constitution went into operation into that fund. This one per cent will be sufficient, if the fund is properly managed to pay off the whole debt in 34 years; but a good deal of that debt is due before 1870 and some of it the legislature has reserved the right to pay at its pleasure; and some of that is, possibly, I think, before 1870, and possibly a large portion of the then existing debt. In order now to give credit to the state to raise money for various purposes I believe some bonds came out very shortly after that time and new ones had to be issued. That clause was put into the constitution for that express purpose. It went forth to everybody who thought of taking and purchasing bonds of the state, and it said to them there is a fund with this view and these were pledged to go to that sinking fund for the redemption of the debt; and I repeat that in every report from the auditor's office I have seen - and I believe I have seen them annually, or as often as they were issued - a statement of the finances of the state is made up and these are always set out as against the debt. The available stocks thus paying dividends and those not are separated; but both are put down as among the means of the state; and in circulars and other things issued from the auditor's office for the information of the people this same fact is stated. If this clause was not in the Constitution, there is nothing in that to show that people have been compelled to lend their money on the strength of those resources of the state in part. I contend therefore, sir, that there ought to be no hesitation about striking out this clause entirely. I contend there is some danger in leaving it there, danger of having our creditors and both the legislature of Virginia and the Congress of the United States refusing their assent to the introduction of this new State.
These are my views, sir, about the same as I expressed this morning; but I repeat them now because I have that provision of the Constitution to base them upon, which I had not at that time. I spoke then that there was something pledging the stocks but I did not assert it, because I did not know it certain. I assert it now without fear of contradiction that that clause in the Constitution is an express pledge to the creditors of the state of this property, these stocks, for the payment of that debt; and if we divert it from that the purpose no matter how worthy the other purpose may be - and I said enough this morning to show that I am as far as any of you in desiring to have a good school fund; but I would be just before I am generous; I would be just even to the stranger even before I am just to ourselves. I would see that the credit, and I may add the honor, of this State is not tarnished by any act of ours here. I would place those funds where they have been already appropriated. I would leave them as the committee on taxation, I understand, reported, that they shall be appropriated to the sinking fund; but I have said, and say again, that we ourselves will be under the necessity of borrowing money before we are a year old in our new State, and unless we have the credit of good faith to back us, unless we can show that our means are or will be ample for the redemption of our portion of the state debt, not one solitary cent will we get in the market unless it is at an immense discount. We ought to be able, as other states are, to borrow at something near par. But to do this, our record of good faith must be clear. No people was ever so much in the hands of providence as we are, for we do not know how even to guess at the future. If our armies are successful tomorrow, if the foe is defeated and put down, why the complications of this time would only have about commenced. Imagine the best way you possibly can, yet there are behind it complications which may make us all shudder and tremble for our fate. Our country is in danger. There is no use of disguising it. Our Constitution is in danger; our institutions are in danger; everything that is dear or should be dear to men is in danger, so far as it may depend on human efforts, but depends it is true very little in the grand complication of affairs upon ourselves. But only so much the more is it the duty of every one of us to approach all these matters cautiously and be sure that we do right. If there is a doubt, room for any hesitation about adopting any measure as grave and important as this, we had better leave it, set it aside, not venture upon it in this state of things. If this State shall be in a situation to appropriate this property to the school fund, it can be done hereafter by the legislature; but if we do it in advance we block the game upon ourselves. We shut out the power to borrow money. And I think no man can hesitate in believing we shall have to borrow money before we go far into this business, or else we must tax our people worse ten times, or at least a great deal worse than they have ever been taxed under the rule of the State of Virginia. What might be their condition by remaining in the state, even if peace were restored, I need not say. I believe it will be worse than in the new State. And that is another argument for the new State. Btit we will not act from any other motive than strict justice and right to place ourselves in a position we shall hereafter regret.
MR. STUART of Doddridge. This discussion, sir, has taken a very wide range. I would say to my friend from Ohio that if he will look at this subject as I look at it he will find he attains nothing by his motion. There are two positive ways by which the public debt can be settled between West Virginia and Virginia: on the principle as laid down in the ordinance last August or on the principle that public property - all the property held by the state - shall be exposed to sale and sold for whatever it will bring and be applied to the payment of the public debt. I for one never will be willing to tax my people with an equal portion of this debt according to the white population unless we have a credit with the amount of improvements the eastern portion of the state has got and for which this debt was incurred. Never in the world. It would be unjust and unfair, and I for one never would agree to it. Never! I am for paying the public debt; but surely it will not be asserted here that we should pay "a just proportion" of this debt taking the white population as a basis and leaving all the public property in the hands of the State of Virginia.
MR. BROWN of Kanawha. I would like to know what is the estimation of the value of all the public property in the State of Virginia.
THE PRESIDENT. I do not know anything about the correct amount.
MR. STUART of Doddridge. But I know one thing, sir, and it is a question that has not as yet properly been raised and I desire to give my views on it: that there is no public property in Virginia, only the state's own stocks, but what is worth something. It would pay a dividend to the state; but if it is exposed to sale it will bring something; and whoever is the purchaser, he will bid and pay for it, looking to the revenue he will receive from it, not what the state receives from it. Now, would not that be reasonable? You see public property in a great many instances is not paying a revenue to the state because they were large investments and cost the state a great deal, but whoever becomes purchaser will pay only to that extent in which he will expect to derive revenue from the amount of money he invests. Now that is very plain to me, and that West Virginia should never agree in this world to make a settlement on any other principle whatever. We will not pay our proportion according to the white population, unless we have an interest incurred in making this debt or we will have the principle as laid down in the ordinance, I will fight against any other as long as I can stand on top of the ground. I am not going to tax my people ungenerously and unrighteously. I am willing to say we will pay our just part of the debt but if we leave all these improvements to old Virginia she ought to have to account for them in some way. If they are not worth much, let them go for what they will bring. And that is why I am opposed to striking out these stocks. But I must say to the gentleman from Kanawha, I am sorry. I am an internal improvement man; and I believe, sir, this will perhaps block up this thing very much, from the fact that some pending railroad and other charters granted by the legislature and we may want to pledge this improvement for the payment of the money we will have to borrow for the purpose of building those roads, and if it is encumbered in this way we cannot do it.
I think there has been enough discussion in this matter, and it strikes me it is better to strike out this provision as there can be nothing got by it. Because the State of West Virginia would have no stocks at the time she becomes a State, and if she ever has it will have to be after she has become a State; and if she has any old stocks it must be by some understanding with the old state and that never will be done except they go to the payment of the public debt. That is my opinion of it. If, as the gentleman from Wood remarks, it is a constitutional provision.
MR. BATTELLE. I beg leave, very deferentially, to suggest in reference especially to the argument of the gentleman from Wood, that it would be best - at least I very much desire - in reference to this report, that we settle one thing at a time. I believe the question now before the house is the amendment offered by the gentleman from Kanawha to strike out the words "or other corporations." I may say, however, in reference to a remark dropped by the gentleman from Wood regarding our future, it strikes me as highly probable that the Constitution this Convention may adopt and recommend will be approved by our legislature, whatever Congress may do with it afterwards. But the proposition now is to strike out these words. I wish to say to the gentleman from Kanawha that the committee had no design whatever in settling the question at all whether this State should or should not embark in internal improvements. We had no intention or expectation that the insertion of this clause here would or would not necessarily raise that question in the Convention. We did not design to indicate any opinion or wish on that subject, but simply to provide that property the State may now or hereafter own shall be devoted to the work of education. And I yet fail to see how the insertion of that clause can operate unfavorably to internal improvements. It may be for my own want of perception. If, for example, the State of Virginia lends its pledge of credit to the construction of a railroad which pays the State no revenues at all from year to year, of course it will have no effect at all on the interests of education; does not affect the question whether the State shall embark in these enterprises or not; but if that railroad does become a paying institution, those revenues accrue to the benefit of the common school system throughout the State. Well, now the question is whether any other direction the people at large would prefer that the proceeds of their money would take, would benefit them as much as education. Is it not just as likely that the people would give their consent to the State embarking in works of internal improvement when it was stipulated the proceeds should go for general education as though it was provided in the Constitution they should go to some other object? That it seems to me is the only question; and that does not affect the other question whether it is wise for the State to make its investments in works of internal improvements. It is only a question of how the profits of such investments, if made, shall be directed. I repeat the committee had no design at all to touch the question of state policy regarding such works. I do not think it was even hinted at in the committee. The clause does not commit the State either for or against internal improvements. But that it would prejudice the interests of internal improvements for the Constitution to appropriate the proceeds of the net revenues paid to the State to the purposes of education, I fail to see. Now that to my mind is just the whole thing.
MR. BROWN of Kanawha. I think I can show him in half a minute. I will suppose this gentleman to be an enemy to the common school system and the question is put to him the State is about to embark five millions in the construction of some railroad which he is satisfied will be a profitable one in the improvement of the State but will not immediately return a revenue of ten per cent on the money borrowed at six per cent to make it. He is an enemy of the common school system. Would he vote for such a scheme? No. Because he would be raising, inaugurating, a liability to make a railroad, the revenues of which when made were to go into the common school system, and he was opposed to it. You would just immediately make enemies to giving the earnings of the railroad system to your school system. Add the two, they might defeat the measure.
MR. BATTELLE. My argument proceeds on the supposition that there is no interest in the State the benefits of which would be so wide-spread and pervasive as those of general education.
MR. VAN WINKLE. The adoption of the motion made by the gentleman from Kanawha defeats my motion, if I understand it.
THE PRESIDENT. No, he divides the question.
MR. BROWN of Kanawha. I desire to say that if the amendment I offer is not carried, I will be compelled to vote for the amendment of the gentleman from Wood.
THE PRESIDENT. The gentleman from Kanawha does not comprehend the effect of the motion made by the gentleman from Wood. If the amendment of the gentleman from Kanawha fails and the proposition of the gentleman from Wood prevails, he effects both purposes.
MR. BROWN of Kanawha. Yes, sir, I understand that; but I am content that the words shall stand if I strike out what I propose; but if I cannot get them stricken out, then I am driven to the necessity of striking all out, so that I desire the vote taken first on my amendment.
The question was taken on Mr. Brown's motion to strike out "or other corporations" and it was rejected.
The question recurred on the motion of Mr. Van Winkle, to strike out the clause.
MR. HAGAR. I certainly feel much interested in the cause of education. I represent counties that certainly need some system of free schools established in their midst. I well recollect when talking to my people on the subject of a new State that one of their great hopes was that we would get a good free school system. My notion is that the common people are the backbone of the nation. If so, education might be termed the sinews. Perhaps as far as natural ability is concerned we have a common share of that down where I live. Like a rich soil uncultivated, it produces nothing profitable - very little at least. If we can get a school system that will cultivate the natural abilities or mother wit there, I feel free to say I believe we will come up some day in the future; that the people will not have to be represented in the legislature and convention, if we should have another from that part of the State by me who have never had perhaps a day or week's schooling in their lives. I have been traveling through that country for the last seven or eight years and where I have entered family circles saw intelligent boys and girls 14 to 15 years old whose countenances testified to good natural ability not able to know their alphabet; and some of the parents of these children did not know their letters - many of the men who could not write their names. I certainly, if I feel interested in any subject that has come before this Convention, am interested in the subject of education. It is true it is a little better now than when I was growing up; but while I have contrasted the privileges and advantages of the people that have been raised up here and the children that are growing up here, compared with the children growing up there, I certainly feel greatly interested in this subject. I hope the motion of the gentleman from Wood may not pass; and I think we have got it about as good as we can get it. I had no serious objection to the amendment of the gentleman from Kanawha; but as I did give my vote to incorporate in the report, I could not consistently vote to strike it out, I do want some permanent fund, some principle laid down by which we may as soon as possible secure a fund that our free schools may get into operation. The people there complain about their taxes - poor men, common laborers, men with a hundred acres or two of land, a little property - about being burdened with taxes; but let them know that there is a free-school system and that their children will be educated and I tell you they will begin to come up with money to pay their taxes with the hope that their children will be educated. It can do me no good as an individual; but while I have seen the privileges enjoyed by the rising generation here, I would rather than all I am worth that my family could have enjoyed the privilege the people do here. Schools are far between there. There are men and women there who never saw a school house. I know we will strain a point, using my homely phrase, in order to secure funds whenever we may have started a fund to carry out the object of this free school system. I hope the amendment will fail and then the sentence will be maintained.
MR. STEVENSON of Wood. I said before we took a recess that I was in favor of passing by the consideration of this sentence for the present and I believe so now; that there would be propriety in that, because as we go on in the discussion of this matter of raising revenues to support the schools probably the matter will become clearer; and if we should happen to get on to the report of the committee on taxation and discuss this whole matter of the State becoming a joint stockholder in public improvements or lending her credit for purposes of that kind, we may get some additional light on the subject; and I feel now, sir, because there are several matters here that it seems to me have not been touched, one that I intended to later allude to, but if the question is pressed now and if it is in order, I believe a motion to postpone has precedence, I will make the motion to pass by this sentence for the present.
MR. SINSEL. I do hope the Convention, as they have argued and discussed it three or four hours will dispose of it. I do not think the friends of it ought to be much disturbed whichever way it goes. It does not affect their report in the main. I am willing to strike it out or retain it, and then I am perfectly willing to adopt the balance of this report without crossing a "t" or dotting an "i" or marking a period. Let us dispose of this point now.
MR. LAMB. Mr. President, I trust no one will doubt that I am in favor of a proper system of education. I know the advantages and necessities of it; and if we expect to preserve our republican system we must educate all the people; but I say to the friends of the measure - the committee that have reported this measure here - that I am unwilling that West Virginia should found her system of public education on the abolition of the public faith. That is most certainly done by this clause. I am unwilling that that should go abroad to our sister states, unwilling to so depart in a matter of that kind. I am willing, for one, to pay all necessary taxes in regard to a measure of this kind; I am willing our people should be taxed, but I am not willing to put my hand into another man's pocket and draw from thence the funds on which this system is to be founded. These stocks belong to the public creditor. They have been pledged by the most sacred of all pledges, your Constitution. You have held that out in your Constitution to induce men to take your stocks and that these funds should never be disposed of without being devoted to the payment of the public debt. Now we are asked to take property which legitimately belongs to others and make it the foundation of our school system. I should regret exceedingly, much as I appreciate the advantages of a proper system of schools, that this report does not lay the right foundation for it in West Virginia.
MR. PAXTON. My colleague has anticipated what I was about to say on this subject, and I need only make the single additional remark that I do not see how the striking out of this clause will embarrass the free-school system as appears to be supposed by some gentlemen who have addressed the Convention. It appears to be only a question of diverting from its proper and appropriate use, these particular funds, if we divert this money and appropriate it for one purpose we would only have to levy an additional tax to pay for the other purpose. On the other hand if we apply it to its legitimate purpose, why then we levy a tax for school purposes. The amount of taxes to be assessed will be the same in either case. I cannot see, therefore, that striking this out would really affect the question of taxation in any way. This is specifically pledged in our present constitution. If we divert it from that purpose, we shall have to levy a tax for the payment of that interest. If we retain it, we levy a tax for school purposes.
MR. STEVENSON of Wood. I desire just to say a few words now to show how differently gentlemen may view this subject. I suppose it is a dullness of apprehension on my part, but gentlemen have discussed this clause here, you will notice, as if it related only to the stock which the state has in public improvements or banks. What state? Why the State of old Virginia, not the State of West Virginia. She is making a provision here that is to apply, as I understand it, not to the stocks of the old State of Virginia now in the Northwestern Bank or in the James River Canal, or anything else unless by some arrangement with the companies the State of West Virginia raised bonds to get hold of them. We are making a provision here to apply to the stock which the State of West Virginia shall or may own in public improvements, corporations or in banks. Now, there is a distinction, whether without a difference or not, I am not certain, but it appears so to me. Let me illustrate this if I can. If this is a wholesome provision in itself, leaving out of view the question of the old State of Virginia, or, if you please, the reorganized State, holding stocks in certain banks and improvements is it not necessary to preserve this feature if it is a good one in itself so as to apply twenty years from this time if we should have a new constitution at that time to the investments the State may make under the Constitution we are now making to these improvements? These are distinct and separate questions it seems to me altogether. So far as this provision could be made to apply to the stock on hand at present, I think it might be well enough probably to so modify it as to make it inapplicable to them. That, it seems to me, would meet the objections urged here against this provision. But unless there is something radically wrong in the provision itself, it seems to me only proper it should be made to apply to the stock which the State of West Virginia shall have in such banks or public improvements. Now if there is not a difference there, then I confess I am not capable of understanding the question. Now, for instance this constitutional provision which was read here that these stocks are pledged to the redemption of the public debt. Well, now, what does that apply to? That does not apply to the stock which the State of West Virginia may take in any bank, railroad, bridge or turnpike. It is not possible it can do so.
MR. PAXTON. Suppose in a settlement with the old State of Virginia we should get the stocks owned by the state, would not this provision in the Constitution apply to these stocks?
MR. STEVENSON. Yes; I said so a moment ago; and I said if it was modified in that particular it would meet the objection that is urged against the provision by those who want to strike it out. But that is not an objection to the provision itself; and if it is right, it ought to be kept in there because if we struck it out we might wish afterwards to get the investments the State may make in these improvements. There is the difficulty in my mind; hence
I wanted to pass the matter by until we discuss the whole subject, when we may be able to reconcile these conflicting views and interests and probably modify this provision so as to meet the views of all the gentlemen; because I am satisfied every man who has spoken on this subject is desirous of getting a proper fund to support a system of free schools. Now, I say if you strike that out absolutely you deprive the State, at least until there is an amendment or another constitution, from getting any revenue from these sources.
MR. BATTELLE. I join my colleague on the committee in the request of this morning that this sentence for the present be passed by, and I believe it is a courtesy that has been extended to almost every report that has come in, and I shall ask it as a favor to the members of the committee. For one, I will say before I sit down, by permission of the gentleman from Marion, that if I know myself I not only do not wish but will not consent to the incorporation of any principle in this, or in any other, report that does injustice to any plighted faith in this business; but I wish to have some time for reflection in connection with that before we act. I ask the favor of the Convention to pass this by for the present.
MR. HALL of Marion. I trust the Convention will not pass by; for really such has been the manner of disposing of business that whenever we come to a place where we squabble we pass by, and it will throw us into confusion. This matter has been discussed and one point at least must be apparent in my view, and that one is sufficient to govern the action of this Convention on this motion to strike out. Now, whether we suppose that this provision will have reference only to the interest creating in the State of West Virginia or not, there can be no doubt. But when we incorporate this into our Constitution, it goes forth to the world and the construction placed upon it will be a barrier, a rock in the water that will prevent us reaching a state and, therefore, your proposed system of education. Whenever by this adjustment we cannot go everywhere and tell the people we intend to so adjust our matters with the old state that we will not have any interest in anything derived from these companies and they will regard us as having appropriated all our means and facilities to pay the debt and that we are not likely to act in good faith, it will be in our way when we apply to Congress for admission. It must inevitably do so; and I see nothing if this is stricken out in the way. Whenever we find ourselves in a condition with our affairs to make it judicious, I see nothing to prevent the legislature from making provisions, adding, appropriating, giving direction to this or any other fund. But, as remarked by the gentleman from Ohio and a number of others, there can be no doubt of this fact that the whole world so far as they know anything about this regard themselves as holding a lien on this very thing, and we know everybody would expect that when we had made an adjustment with the old state, we would at least have control of so many of these corporations as are situated within the territory of our proposed state. Then, sir, you have appropriated this in violation of a constitutional provision. I trust we will act on this matter and that we will not by retaining this clause anticipate legislative action in the future. I for one am exceedingly anxious that we shall so frame our Constitution as to steer clear of every corner and get a new state, and this certainly will be a barrier. It will have the appearance of not acting in good faith. Those who are interested in the bonds of the State of Virginia will believe that we propose one thing and intend another when we say we will pay our reasonable proportion of the debt. I trust we will strike out now, and not pass it over.
The motion to pass by was put and it was rejected.
MR. LAMB. Lest my vote might seem discourteous to my colleague, I wish to make an explanation. If this clause should be stricken out, it will not prevent at any stage the offering of an amendment which will make the provision relate exclusively to stocks which will not be affected by this pledge of the public faith; so the gentleman's object can be attained as well, I suppose, in one way as the other.
The motion of Mr. Van Winkle's, to strike out the clause, was then taken, and it was agreed to.
The Secretary reported the next clause: "any sums due this State from any other state on account of educational purposes."
MR. BATTELLE. I suppose the Convention all understand what that means. I do not know but one state from which any such sums are to come. The committee thought it best to use general language rather than specific. If in the final adjustment of matters between us and the old state there ought to be a large share of the literary fund belonging to this State on any just principle of settlement. I suppose no one in the Convention will object to the fact of that being appropriated to the object for which it was raised. I suppose all gentlemen will agree that all sorts of faith will require that that fund, if it comes to us, should be devoted to the use for which it was raised when the state was all together.
MR. PARKER. I agree with the gentleman. I understand that the amount of the literary fund which I suppose this has reference to is about two millions and a half. There ought to be something like five hundred thousand proportion coming to the new State. The way it stands here, it struck me it was not sufficiently clear. The funds are doubtless now gone in the rebellion. Suppose in the adjustment the old state will account to the new State, but these funds will be gone. Well, now, what I suppose the committee meant, what I believe will meet the views of the Convention generally will be that although the literary fund is really gone, the general school fund of our State shall stand credited with the amount, with our just proportion of that fund, on the books of the new State. That, it seems to me, would be right, because we do not receive the money of the new State; but it comes in and the new State receives the benefit in liquidating the debt, settling the account, and it is absorbed in that settlement. Well, as that was purely a literary fund which the old mother has devoted to literary purposes, purposes of education, why, of course, we should want to credit our corresponding fund with the fair proportion which comes to us, for the same laudable purpose, and not use it to pay our debts. I had drawn up an amendment which it struck me would express the meaning more specifically, which I would now offer.
The Secretary reported:
"That just proportion of the literary fund of Virginia which this State shall be entitled to on settlement with that state."
THE PRESIDENT. The Chair would call the attention of the gentleman from Cabell to the language "any sums due," not what we may receive but what was actually due us, would be appropriated.
The question is on the adoption of the amendment.
MR. BATTELLE. It seems to me, Mr. President, that the provision as it stands meets the case. The report says "any sums due this State on account of educational purposes." No difference whether literary fund or school fund or what it is. The fact is that there may be money within the bounds of this new State belonging to one or the other of these funds. We have no money now that belongs to the State of Virginia. I fail to see the particular point to be gained by the amendment of the gentleman from Cabell more than what is here.
MR. PARKER. I will require a moment to indicate. I suppose being "due," it would, as it stands, be credited to the school fund.
MR. BATTELLE. Yes, sir.
MR. PARKER. I would withdraw if it is sufficiently clear. It struck my mind it might admit of some question. I will withdraw it.
The question was taken and the clause adopted, and the Secretary reported next the clause:
"The proceeds of the estates of all deceased persons that may have died without leaving will or heir."
MR. BROWN of Kanawha. I move to amend that clause by striking out the whole and insert: "The proceeds of all estates which may escheat to the State." Under the law of Virginia when persons die in cases precisely stated in this clause, their estates escheat to the state, become the property of the state. I understand the object is to transfer that to the school fund. By the law of escheat, not only those who die without heir or will but also all foreigners, who are prohibited from holding lands within the state, dying without the fee their lands escheat to the state and become public property and should also be transferred in the same condition. No foreigner can hold land in Virginia. It is one of the self-guaranties of every state to prohibit it, and it is only allowed in some partial instances. I do not know whether it was allowed in this state in the case of Lafayette. I believe there was such a proposition but he was allowed lands in the West. If it were otherwise, the real estate of a state might pass into the hands of foreigners and the people of the state be mere tenants of foreign free-holders. So my proposition is much broader.
MR. BATTELLE. I understand the gentleman's amendment to be more comprehensive.
MR. BROWN of Kanawha. And another advantage I wish urge is that this describes a new distinction but that which is and well defined: escheat is a mode prescribed by law to vest the state all the property that belongs to persons who die either without heir or will and foreigners whose children cannot inherit in the state, and it will follow in the same course with persons convicted of treason.
THE PRESIDENT. And murder.
MR. BROWN of Kanawha. No, sir; not in cases of murder.
THE PRESIDENT. Well, but where the murderer runs off and will not stand trial.
MR. BROWN of Kanawha. Yes, there might be a case. But the Constitution of the United States provides that treason against the United States shall not work corruption of blood; but the State of Virginia and none of the states have ever had a provision that I know of, and consequently treason against the state would and the heir never inherit unless there is some provision of the legislature to grant an amnesty. And in such cases the object would be to transfer the title of that property to the school fund; and so, as described here, "the proceeds that may escheat to the state" covers all of them.
MR. BATTELLE. Without opportunity to consult the committee, I accept the amendment.
MR. SOPER. I am apprehensive, sir, that the amendment is too broad. I believe it will be found that there are a great many individuals living now among us that own lands who are aliens; and if a question should arise as to their titles an application would be made to the legislature and the interest of the State would be released to the heirs at law. Now, we ought not to cut off individuals of that kind, sir. I have known it in every place where I have lived and I have no doubt it will be so in Virginia, that there are foreigners here by birth who in Virginia become aliens and who are in possession of lands and probably hold deeds for them. I have known instances of that kind in Virginia and I know the time may come when this land will be declared to be forfeited unless the legislative power comes in and grants an amnesty, which always has been done and I suppose will be done hereafter. I apprehend we had better retain the provision as it is.
MR. BROWN of Kanawha. The gentleman does not understand the amendment. He supposes. I suppose he is fully aware of the law of Virginia that no alien can hold land in Virginia; that is he cannot transmit inheritance. An alien may hold land until a proceeding by the escheater takes it away from him; but by law he has no right to hold it. A foreigner has a right to hold land and his children will inherit it without the escheater ascertains these facts, and the judgment of the court, from those facts, will be; that is true; the land escheats to the State, and it becomes vested by proceeding in the State. It is nothing more than a mode by which you attain the end. The State forfeits land for non-payment of taxes; and they will declare the forfeiture; but until the land by forfeiture becomes vested in the State this fund is not to have any benefit in it. The practice is that after the time the titles vest in the State, she may release her lien on the land. The owner may discharge the taxes and may go free. So it may permit the foreigner to come in and become naturalized but if he has the determination to remain a foreigner and retain allegiance to another state he cannot retain allegiance in Virginia, and his rights are about to be taken from him - and ought to be taken from him - because he is one who has no allegiance and whom you have no right to call on in the event of hostilities. I suppose we are not going to legislate here for foreigners to the disadvantage of our own citizens. Where is there a state in the Union that permits a foreigner to hold land who does not acknowledge allegiance to the state? There is no country in the world that does it. They don't do it in England, and it was only by special legislation they were allowed to hold goods and chattels for purposes of trade; but real estate never was allowed to be held by foreigners only in special cases and for special purposes. Then this land must be forfeited.
MR. VAN WINKLE. Does the gentleman's amendment permit the release by the legislature?
MR. BROWN of Kanawha. Not after it has become vested in the state by the forfeiture, and until that proceeding, is fully done, the state could decline taking it.
MR. SMITH. I would suggest "and proceeds of all escheated lands."
MR. VAN WINKLE. I would suggest to the mover of the amendment that it would better it to say "proceeds of all escheated estates not released by the legislature," or do you mean that they shall forbear to institute proceedings? Whether that had not better go with it, I approve of the amendment decidedly.
MR. BROWN of Kanawha. After the land has been escheated and vested in the state and judgment of the court has been rendered, the property sold and the money placed in the treasury, then I understand it will become a literary fund and pass beyond the power of the state to give it away again. Besides, it is not the same thing. After the money goes into the treasury of the state, it is wholly immaterial whether she takes out the identical dollars or some other dollars deposited there by an actual transfer and the proceeding had which makes the transfer, this section could never operate on it, for up to that time she may choose not to act or release him from the circumstances that make the forfeiture complete. Now, a man who refuses to pay his taxes, she does not forfeit his land for the first year, lets it run on five years, and then she gives him two years to redeem it again, and she may extend the time when the two years is out. But when she does that and it is converted into money and the purchaser has got a complete title, the money in the treasury belongs to the state. Then that is determined how much goes to the literary fund. All these forfeited lands in the law of Virginia go to the present literary fund of the state after paying the expenses and disposition of the property, so that a new person becomes owner of the property, the original forfeiture is cut off and the money goes into the treasury and from that into the literary fund.
MR. VAN WINKLE. I am satisfied with the explanation and will vote for the amendment.
MR. SOPER. Take the case of a foreigner who has acquired property and dies before he has time under our laws to become naturalized, his property would be escheated to the state unless released by the legislature. I think the amendment is too broad.
MR. BROWN of Kanawha. I will alter the phraseology and add after "heir" the words "and all escheated lands."
MR. SOPER. Very well, sir; that may answer the purpose.
MR. BATTELLE. No objections, sir.
Mr. Brown's amendment as modified was adopted and the amended clause agreed to.
The clause next succeeding was read by the Secretary:
"The proceeds of any "taxes that are now or that may hereafter be levied on the property or revenues of any corporation."
MR. BROWN of Kanawha. I move to strike out this clause. I do not think it is proper to be carried into this Constitution. I think when we consider what is the effect of it, it will be manifest. A large portion of the lands of the State are held by corporations, your mining companies, your manufacturing companies. Very few manufacturing establishments in this State that are not corporations. In our country we have mining companies, oil companies and some places where there are lumber companies and salt companies. Some of the largest properties and incorporations in Kanawha county are cannel coal companies who have immense real estates and have erected large oil factories on it which are corporations. The taxes on all these may amount to millions. Their lands are taxed; their personal property is taxed and everything else is taxed. Now, why take all this and appropriate it exclusively to the school fund? Now this is to select the largest tax payers and take the entire taxes of these people and appropriate it to the school fund; and before you are aware of it, you will have all the revenues of your State in this one fund. You cannot get them out; and I think the gentlemen in placing this have not considered duly the limits to which they will go. I am confident some of the largest tax payers in Kanawha would be included in this clause and the whole revenues of their land and estate would go to the school fund. Neither would they go to the county treasury, because by this provision the "proceeds of any taxes that are now or may hereafter be levied on the property of any corporation" are disposed of here.
MR. SMITH. The moment I cast my eye on that, I agreed with my friend from Kanawha that that clause would perhaps cover half the taxable property of Kanawha county. There is one company there that is worth not certainly less than one hundred thousand dollars - an oil company. At forty cents, that would be $400 on them. There are two large companies on Paint Creek whose property has been paying something like $400. There is the White Sulphur Springs, a corporation; and I imagine their taxes will amount to a thousand dollars. It is estimated at $625,000. It was sold for that. There is the Red Sweet and the Old Sweet Sulphur Springs. They are corporated bodies. There is the Salt Sulphur; I don't know whether it is incorporated. The Red Sulphur is, and the Blue Sulphur, and all those springs in Greenbrier, upon which I suppose the taxes are about $3,000. Well, I imagine in the county of Mason, there is Mason City incorporations; there is the West Columbia, a large incorporation, and Hartford City, another large corporation; there is a fourth I know of besides innumerable small ones.
I have no unfriendly feelings towards education. I have always been maintaining it; but I don't want to give all the taxes of the country to it; nothing left for the support of the government. I am sure the draughtsman of this could not have considered the magnitude of the interests he covered by it. As the gentleman from Kanawha has said, these corporations are forming rapidly, there are four or five or six or seven oil companies and it is proposed to incorporate the entire Kanawha Salt Works; and if so, why that would make a tax of $2,000. I believe that is in contemplation now if not in progress. And there are innumerable companies for mining in that county. I am only speaking of those I know. I think my friend (indicating Mr. Parker) was the representative of a large company in Cabell but he says they have not been incorporated, but it will very shortly be, with a property estimated at $800,000. Well, there is a company incorporated in Putnam that have recently paid $625,000 for the land they acquired. And there is Peytonia and Boone. Very large interests incorporated at Smith Rapids; one at Briar Creek and two or three at Peytonia, and I do not know how many others. Coal River is alive with incorporations; so is Elk River. It would be a large portion of the revenues of the State; but I think, while we are making provision for the schools, we ought to leave a dollar or two for the management of the government. I think it is too exclusive in its operations. I shall vote cheerfully for striking it out; at the same time declaring my hearty approval of any measures that may be intended to extend the privileges of education. But I think that is carrying the matter a little too far.
MR. BATTELLE. I propose an amendment in the 11th line striking out "property or" and in the 10th line striking out "are now, or that", and in the 11th line also "hereafter"; so that the clause will read: "The proceeds of any taxes that may be levied on the revenues of any corporation."
MR. SMITH. I do not exactly understand the amendment.
MR. BATTELLE. The effect is merely to strike out what would be superfluous so that it would read: "The proceeds of any taxes that may be levied on the revenues of any corporation."
MR. VAN WINKLE. If the gentleman from Kanawha had not anticipated me I should have made this motion to strike out, on the general ground that these original sources of revenue ought not to be appropriated for the school fund. If money is to be appropriated for that fund by taxation, let it be raised by taxes laid for the purpose. There is no provision for a state tax, unless I am mistaken; and since I have heard the remarks of the gentleman from Logan, I am afraid that apart from the principle that is involved in it we would be robbing the revenue of a portion that we cannot spare. I think the true idea in reference to this school fund is to take these fines, and trusts, escheats and forfeitures and penalties and fees and give them to the school fund, and that the money that is necessary to be raised by taxation for school purposes be raised as this report proposes to do it in the townships or counties, so that it may be better proportioned to the wants of each county. The idea which is embodied in the report I take it is this: That there shall gradually accumulate a fund from these sources; fees, waifs, escheats, forfeitures and fines, and that the annual increase only shall be distributed for school purposes. The fund will thus go on increasing; and if it increases rapidly by so much will the taxation in the townships be relieved until the fund gets sufficient to maintain the schools - as I believe it does in the State of Connecticut. The annual increase only is to be applied; which leaves the inference that the balance of the money has got to be raised by taxation in places where it is needed. As to the features of that taxation, I shall have something to say when it comes up. But I think it is wrong in principle and it would be more wrong and very inconvenient in practice according to what the gentleman from Logan has told us if we appropriate these taxes to the school fund. As I have observed before, everything in the future is dark. We do not know what our revenues are to be from any source. How are taxes of this year, for instance, going to be paid ? We must not strip ourselves of revenues applicable to ordinary purposes. I hope therefore the clause will be stricken out.
MR. BATTELLE. I do not see the application of the gentleman's remarks to the proposition now before the Convention. It does not propose that the revenues of any corporation shall be taxed; it does not settle that question at all but leaves it to the legislature. The legislature may see proper never to impose a tax on the revenues of a single company; but it does provide that should the legislature see proper to levy a tax on corporate revenues, such tax would go to the school fund.
MR. VAN WINKLE. I wanted to state what I intended to, they cannot under our system of taxation lay a tax on both property and revenues, under the Constitution of the United States. The late Attorney General, Mr. Tucker, has, in a long and elaborate opinion, given his opinion that the Baltimore & Ohio Company is not taxable at all. An arrangement was entered into between this attorney general and several railroads in the state from which there is now pending in the court of appeals a suit involving the question of the right to tax these railroads on both revenues and property. One case is being tried in that court; and by consent of the attorney general, the auditor and the rest, the road with which I am connected, are all waiting the decision of that case. That was the state of things when this trouble came upon us, and of course since no progress has been made. Now, it is wrong, of course, to tax both property and revenues.
MR. BATTELLE. To all which I reply that if there is any tax laid and any revenue derived it can do no possible harm to anybody. But it may be the case that hereafter in granting a charter, for instance, for the construction of a railroad, it may be provided that a certain bonus or tax shall be paid to the State from the travel and freight on that road. The object of the provision, whether right or wrong - it strikes me as being right - is that in case the legislature should ever lay any tax on such revenues, it would accrue to the benefit of the school fund. But what I wish to say is this, that this provision here does not at all settle the question of whether there is to be any tax of this sort levied. It does not affect, or settle or touch that question; but merely does provide that in case the thing be done - it is a future contingency altogether, which this does not attempt to settle or even suggest - but that in case it shall be done and there shall be a revenue accruing to the State from a tax on revenues of a road or from any corporation it shall go to the benefit of the school fund.
MR. SMITH. I merely suggest to the gentleman from Ohio that there is another clause in this Constitution that will be in conflict with these taxes. You tax this once as property; and then you tax it again on its revenue; which is another tax upon it, and it would make it unequal to tax corporation property more than other property.
MR. BATTELLE. It seems to me that that would be a line of argument to address to the legislature when they come to the question of imposing the tax.
MR. SMITH. But we ought not to give them power whilst we are prohibiting the legislature to follow an impulse that might be created against the corporation and they would seize the opportunity of taxing their revenue; and that is one of the things that ought to be inhibited; and it is that sort of thing we ought to put in the Constitution. But as we are making a code, I wanted to make that code as perfect as it could be made. I do not think there ought to be anything in the Constitution but that which is an inhibition to the legislature, and leave to them all that we are willing to trust them with. They have the power to do all this without this proceeding we are adopting here; but I do not want to give the legislature power to lay double taxes on a corporation. There, prejudices may grow up against them for some cause or other that may be temporary in its character but which while it does exist will bear heavily on them; and I don't want to give the legislature power to do so. We have said taxes shall be ad valorem, leave them ad valorem. I don't think taxations ought to be taxed any more. But here it is singling our corporations and giving a double tax on them and not a double tax on any thing else. Just come out and say the legislature may levy double tax; but to say it shall be unequal is unjust. I object to it on that ground. The legislature grants powers to a corporation and limits their rates. They are to be taxed in a given way. The arrangement is a contract. If afterwards this contract is changed by the legislature, it is a violation of the contract; and a contract cannot be changed without consent of both parties to it. This was the question that arose in the case taken into the court of appeals by agreement, referred to by the gentleman from Wood.
MR. BATTELLE. If the future legislature of West Virginia should on the application of capitalists from anywhere grant a charter for a railroad from one point to another within the bounds of the new State, would the legislature have power under the general constitutions heretofore, or under that which we are likely to make here, to provide that anything in the shape of a bonus, any percentage on travel, for example, or on freights, should go to the State? Would the legislature have that power?
MR. SMITH. Anything that will not interfere with ad valorem taxation would be constitutional; but any taxation that would make the tax unequal would be violatory of that principle that the tax should be according to value.
MR. BATTELLE. The gentleman does not understand me. Suppose a company of capitalists from New York, Philadelphia or Baltimore, or from any other point, should desire to invest their money in that way by building a railroad say from Parkersburg to Charleston. The legislature grants a charter to that road with this condition, that a certain percentage on the travel a certain percentage on the freight shall accrue to the treasury of the State, would the legislature be competent to make that condition?
MR. SMITH. Yes, sir; it is contract. The legislature can make a contract as well as any one else; and if the companies choose to make a contract of this sort that will bind them to a larger amount, then they are really under the Constitution bound.
MR. BATTELLE. There is only one other question: What would be the proper technical name of that amount of revenue paid by the company to the treasury of the State - taxes, or bonus?
MR. SMITH. They would charge a bonus, as benefits, pay a bonus for charter privileges. That is a bonus; and I believe is decided not to be within the purview of the Constitution which says it should be ad valorem.
MR. VAN WINKLE. A question I would like to ask is, whether this bonus system has been repudiated wherever it has been tried, as leading to corruption of every kind?
MR. SMITH. Yes, sir. It is not a just mode of legislation. They come before the legislature and ask for a charter and they will impose improper terms on them, which they will submit to in their anxiety to get it. It is a bad system of legislation, and one not to be encouraged, because the legislature will take advantage of a man's necessities to force a hard contract on him. But whatever a man contracts to do willingly he is bound by, unless it is against morals. No contract that is against good morals or the policy of the government is a valid contract; but any that is not in contemplation of law against good morals or against public policy is a valid contract although it is a hard one. It takes it outside of the Constitution, as I understand it. But I do not think there ought to be any winking at the right to tax it as property ad valorem.
MR. STEVENSON of Wood. There is one thing that seems to be overlooked by the gentlemen who are opposed to this amendment as offered by the gentleman from Ohio; and that is this: that the bonuses, as they are called sometimes in some other cases called a tonnage tax, sometimes tax on tonnage, and sometimes tax on passengers of railways, and tax upon bank charters, levied in different ways according to agreement made between the party which grants the charter and the party which receives its - and that point which it seems to me they have overlooked is this: that these corporations receiving charters for special privileges - now there's the point. What do they pay the bonus for? What did the great Pennsylvania road pay? Hundreds of thousands of dollars every year ever since its incorporation, on every pound of freight it carried over its road. Why are these roads through Virginia taxed so much on their passengers and so much on their freight? Why is a bank taxed? Why is it made to pay a bonus? The reason is simply this: that it has special privileges, authorized to do certain things that people who own other kinds of property and engaged in other business have not a right to do. Now, I say it is right that where corporations, either railroads or banks, or any other corporations, receive special privileges over and above other persons and other parties and other property, that they ought to be made to pay for it. And that is the very principle upon which these bonuses have been levied. If the principle is not a correct one, why, as a matter of course we should not introduce it here. But I say it is a thing adopted and practiced in all the states, I believe, of the Union. I know, however, that there is a great contest going on now, and has been for the last ten years, for the purpose of striking down this practice. Now, where does it come from? Why, sir, the people of Pennsylvania, by very decided majorities, during the whole history of that corporation, have been in favor of imposing the tonnage tax, while the corporation was making persistent efforts. They had granted special privileges to this railroad company, in consequence the company acquired immense revenues and immense power. On account of the immense amount of stock which was invested in that enterprise they have been enabled to divide the people, to a very great extent, the popular sentiment on this question; and you will find that that is the history of what is said now to be an attempt to overthrow this principle of taxing revenues and of corporations. I think the principle is not as popular as it was, but it is from the fact that within the last ten or fifteen years these great public corporations - particularly railroads - have become more powerful - probably ten times or a hundred times - than at any former period in the history of this country, and it is because of their corporate privileges that they are enabled to operate so as to crush out the operation of this principle. Now, sir, I see every reason for levying these special taxes. I do not care whether you call them tonnage taxes or taxes on passengers, or bonuses. It is the price paid that the corporation may have special privileges, that other companies, other people and capital in other business do not have. It seems to me right that if a number of men engage, for instance, in the banking business and they get the privilege of issuing a hundred thousand dollars in paper when they have but $25,000 of gold and silver, they have the privilege of operating on $75,000 of false capital. It is a special privilege that they have. A dozen members of this Convention cannot do this unless they get a special act of the legislature; and if they get a special privilege which I have not, I say they shall pay for it. Now, sir, if it is right to levy taxes of that kind on these revenues, then it seems to me the most proper place to deposit these taxes after they are collected is for the support of the school fund.
Let me say here that if we go on and strike out everything from which we can raise a fund to support schools, the school system will come out at the little end of the horn. How much revenue will you raise from these escheated lands? How much from fees or fines which are to be put into the school fund? Not enough to keep the schools going in a single county of the State, probably, for a year. Now, what other sources of revenue are to be tapped for the support of this free school system? Why, sir, the alternative is that you must tax property and tax the head. Here then comes the difficulty we have been talking about all day. People are already taxed too much. When we have apportioned this state debt and taxed them more for it and for erecting public buildings that may be necessary to commence and carry on a new State the people will be taxed for that. Now we come in to tax them again for school purposes, because we must do that unless we can raise the revenues to support this free school system from some other source. Now, sir, I want to be as liberal to corporations as possible, but I say, for one, special privileges over and above what anybody else is to have ought to be made to pay for them. And when they are made to pay, it will be, as I think it ought to be, one source from which we are to derive revenues to support this system of free schools.
MR. SMITH. The gentleman's remarks are all well enough if they were now on an act of incorporation. If an applicant was here for corporate privileges, one would say I claim the right when we give you an act of incorporation to tax your revenue for school purposes; but this is to tax any incorporation with its existing charter, and that existing charter does not authorize the taxing of these revenues. This provision if it is to be applied to corporations ought to be to corporations hereafter created by this State. Because there are corporations now existing that you cannot tax; because it is not authorized in the charter, and a charter is a contract. The legislature cannot tax that which it has agreed not to tax. Now if you are taxing a railroad on its freight or passenger traffic, or in the form of a bonus, that is a contract the State has made with the party to whom you are granting the charter of incorporation, and you may well insist on it; but here you are proposing to tax those whose charters may not allow it. That is the objection that will be made to the proposition to tax an incorporated company the charter of which will not authorize it; but if that very company was coming in to ask a renewal of its charter, the legislature might very well say "We have given you this privilege of passing through our country - these extraordinary privileges which do not belong to people generally; and in extending to you this privilege we require you to compensate the State and pay so much on tonnage, so much on passengers." Then the question is, will the incorporated party accept this incorporation on these terms? If they do, it is a bargain, and they are bound by it. But here it is nothing of that kind, but to charge a corporation now existing with a tax on revenues which may not be authorized by its charter. This reads: "The proceeds of any taxes that are now or may hereafter be levied on the property of revenues of any corporation." That is any corporation now existing or hereafter to exist; seeks to charge it contrary to the other branch of the Constitution which says it shall be ad valorem. And then when they come to incorporate or give the charter they will give it on such terms as the legislature choose to give it and such as the other may accept. That is a contract that may be legitimately made, because it is not in violation of morals or of the policy of the State. But we are not incorporating a company now. We are proposing to tax a company already existing, and you are not in condition to impose that sort of a contract upon them.
MR. STEVENSON of Wood. I really think there is no difference after all between the gentleman and myself. This does not make it obligatory on the legislature to tax any company. If they have not the power to do so; if that corporation has a charter exempting them, it is not in the power of the legislature to violate that charter. This provision is simply that where the legislature does have the power to impose such taxes, and see fit to exercise that power, the taxes so laid in their discretion shall go to the school fund. How would this suit the gentleman - to say "any corporation hereafter created"?
MR. SMITH. Well, now, the legislature have the power to do that when they incorporate it.
MR. STEVENSON of Wood. I know, but what they want now. We know the legislature will have that power, but when they levy the tax we want to fix it so that it shall go into the school fund, simply to give the direction to the revenue we are proposing. There is no difference if the gentleman will agree to that. We have got the thing just right: that the legislature may levy a tax on the revenue of corporations hereafter created, and it shall be appropriated for school purposes.
MR. SMITH. There is this objection to it that you take from the ordinary revenues of the country too much. You don't know how many corporations there may be. I think that can be better disposed of by the legislature. They have charge of the interests of the country, and if the people want it and think the revenues ought to be applied to the school fund, they will so apply it. But supposing hereafter, after the inauguration of the State, you levy this tax on every corporation, and diminish the income: I do not know that you would, because it would still be subject to ad valorem taxation, and this would be a risk they assume themselves. But I think it is throwing a difficulty in the way of incorporations, obstructions, I think, in the country like ours where associated capital is so important to its prosperity, that we ought rather to encourage than discourage. The great difficulty of developing the wealth of this country is the want of funds; it is that we have not individual capitalists that are able to start out and develop any of the great resources of the country; and we ought therefore so to direct our legislation and our action as to arouse people to call forth all the energy and power of the State to develop its resources, and I do not like to see measures taken to cripple corporations, which are nothing more nor less than the associated wealth of the people of the country, who unite together their moderate resources to make a capital that will produce a good result. And I think it ought not to be discouraged. Rather, it ought to be encouraged. I do not know any country under the heaven that needs wealth for its development more than western Virginia. I do not know any country having such wealth as it has in proportion to the means of developing it. Why this whole country is a mine of wealth, and we have the people to develop it. And that is the reason why we are now poor. We have wealth in every form, but we lack capital to develop it. Will we therefore at this time when we are framing a government say in our very Constitution a thing that is calculated to alarm those who may call for incorporations which would give us the aid we need? Let us rather encourage than discourage these corporations. I have no prejudice against them. I remember the first time an act of incorporation was passed by the Legislature of Virginia; and all old Virginia was in arms, alarmed because they thought their liberties were gone. But since then Virginia has advanced very rapidly, and would have advanced more rapidly if it had not been for her own folly. In our country we have been neglecting to cultivate our own resources and would still be far in arrears but for the benefit of associated capital which in late years has come to our aid.
I think the provision is objectionable in that form, because it looks like discouragement of corporate capital. I think there is no man in this house more eager to educate the children of the country than I am that will go farther than I will. I will bear taxes upon taxes, but not seek out this subject or that subject for taxation - make this discrimination here and that there. Let us make discriminations against corporations and crush them to the earth. I am against all that sort of thing. I do not want to throw a single thing into this Constitution to discourage the association of wealth for the benefit of the country. My friend from Boone knows how much the corporations have done for the country. They have made it; and but for this rebellion that country would have gone on rapidly in improvements; and it never would have done it but for the association of that wealth there. So it has been in my own county; and I will venture to say wherever these corporations have gone with their wealth united to develop it the country has been in nine cases out of ten a successful result.
MR. HAGAR. I move we adjourn.
MR. VAN WINKLE. I had the floor, I think, sir. I want to say that if either I or the chairman of the committee misconceive this subject of a school fund very much if it is supposed this fund is to be different from like funds in other states. If there is to be accumulated in one year all these things devoted to the fund are to be anticipated, as I believe, then I have misunderstood the subject entirely and I shall vote for no such school fund. In the second place, if this great principle of ad valorem taxation which we contended for in 1850-1 and got apparently is to be sacrificed to the school fund, then I am against the school fund altogether. Now, sir, this talk of valuable property and all that sort of thing - what does it amount to? If you put your tax on property you can reach it in the regular way. If these corporations are so valuable that the property round them rises in value, then you get the increased taxation on them. I oppose this because I do not wish to see ordinary revenues of taxation appropriated to any special purpose. If you will make taxes as soon as the country can afford it to go into this school fund, I will go with you. But I will not go for unequal taxation. We must have ad valorem or equal taxation established in our Constitution. We shall be able to get along and satisfy the public. But to pick out a thing here, to single out this kind of things, to wield the power of the State for an unjust purpose, I never can consent to and never will. Now, sir, let this fund be built up gradually; give to it those things that are coming in; when you want more money raise it; and if you are going to set your schools in operation in three years, as here proposed, you will have to raise it by taxation. If it was a million of dollars, it would be but $60,000 a year to distribute among all these counties; and when will it get to be a million in any circumstances? I think the gentlemen in their eagerness - I do not allow that they exceed me in eagerness to have a good school system - are willing to overthrow the principles of government, which are equally as valuable to the people as their education or many other things.
MR. BATTELLE. The gentleman, I know, does not intend to impute that the committee designed to act dishonestly.
MR. SMITH. I did not so understand it.
MR. VAN WINKLE. The gentleman ought not to be so sensitive. I did not mean that, of course.
MR. BATTELLE. The gentleman said that in our eagerness we were willing to overthrow the principles of our government.
MR. VAN WINKLE. That is the true effect of your act.
MR. BATTELLE. I am very glad the gentleman disclaims, however -
MR. VAN WINKLE. I disclaim here, and forever, any purpose to impugn the motives of gentlemen. That is not courteous, and it is not my business. I have not done it. I am endeavoring to maintain my position and when I point out that the effects of my opponent's position is to work certain injustice it is not to be supposed that I say he meant injustice.
The Convention then adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia