The Convention assembled at the regular hour and was opened with prayer by Rev. T. H. Trainer, a member.
Minutes were read and approved.
MR. VAN WINKLE. The resolution offered by the chairman of the Committee on Expenditures yesterday was laid on the table at my instance. It proposes to authorize the Sergeant-at-Arms to give up the committee rooms, and as explained refers to the end of the time for which they were hired. I apprehend, sir, the rooms will not be wanted after that time; but it is only fair the proprietor should have this early notice of it. I will therefore ask that that resolution be taken up and considered.
The resolution was taken up and reported as follows:
"RESOLVED, That the Sergeant-at-Arms be authorized to give up the rooms at present used by the committees of the Convention."
MR. HERVEY. That I think should specify the time when the rooms are to be given up.
MR. STEVENSON of Wood. Of course, we cannot give them up before the end of the present term.
The resolution was agreed to, with the added words: "At the end of the current month for which they were rented."
THE PRESIDENT. The Convention when it adjourned yesterday evening had under consideration the Report of the Legislative Committee. The forty-third section would be the next question for consideration. Will the Secretary report it?
The Secretary read the section as follows:
"43. No convention shall be called, having authority to alter the Constitution of the State, unless it be in pursuance of a law passed by the affirmative vote of a majority of the members elected to each branch of the legislature, declaring distinctly the powers and objects of such convention, and providing that polls shall be held throughout the State, on some day therein specified, which shall be not less than three months after the passage of such law, for the purpose of taking the sense of the voters on the question of calling a convention for the purpose and with the powers set forth in such law. And such convention shall not be held unless a majority of the votes cast at such polls be in favor of calling the same; nor shall members be elected to such convention, until at least one month after the result of the polls shall be duly ascertained, declared and published. And all acts and ordinances of said convention shall be submitted to the voters of the State for ratification or rejection, and shall have no validity whatever until they are ratified; and in no event shall they, by any shift or device be made to have any retrospective operation or effect."
MR. STEVENSON of Wood. Mr. President, I have not had time to examine this section much but it seems to me that it would be better to have a two-thirds vote of the members elected to the legislature to call a convention instead of a majority. I shall therefore move to strike out of line 282 "a majority" and insert "two-thirds."
MR. BROWN of Kanawha. Mr. President, I must oppose the amendment made by the gentleman. I shall desire to give the reason for doing so. I cannot free my mind from the apprehension that the gentleman's proposition was superinduced by the surroundings, by the state of the country and the very recent history of it. Now, sir, we are here adopting a Constitution under peculiar and extraordinary circumstances, the like of which has never been witnessed on this continent before. We are proposing a Constitution representing according to the election returns here the very meagerest minority; a Convention whose actual constituents are comparatively few compared with the people of this proposed State. We are prescribing the terms in this clause of the Constitution which is proposed to chain and firmly bind those people in any future alterations. We come here not advised and not from anything that has transpired or that could have transpired in our intercourse with our constituents, agitating and discussing new and extraordinary provisions that are brought into this Convention. We are making changes radical and deep that are wholly new and wholly unknown to most of the people even that we represent. And we are doing it, too, when under every human probability this Constitution is to be submitted back to those people for ratification or rejection, under circumstances that they will be compelled in almost every emergency to take it whether it be good or bad. If we had a constituency free to act, free to discuss the question, impelled by no corrupt influence and power to adopt whatever this Convention shall give them, then it might be fair to present any proposition to the community that they might act upon it. But, sir, that is not so. We are here embarked in an effort to form a new State; that effort is superinduced by the circumstances that surround us. It can only be carried successfully forward by the very circumstances that are upon us; and if under such circumstances you present the people a constitution with features in it, that they may be opposed to root and branch, but under the circumstances may be constrained to adopt what they hate and detest, then is it not an outrage to trammel them by saying that a majority of the people shall not restore and amend it - to say that it shall require two-thirds of the people to alter this Constitution when, sir, less than one-fifth, perhaps, are fixing and adopting it? Already are we introducing into this Constitution provisions new and unknown to the people of Virginia - provisions, sir, which in the course of a history of two hundred years have never been introduced to my knowledge into the legislative halls at the request of any delegate representing the people of the State; and yet this Constitution adopted by a few is to be put upon the people and then nothing but two-thirds ever can get rid of it. I am one, sir, that expect to vote for this Constitution, whether it contains provisions I approve or disapprove, because there are higher and more pressing considerations that impel us to take it, good or bad, as the least of evils. But when it is presented under such circumstances, I do demand in behalf of the people I represent and every other people in the State that it should not be attempted by this body or any other under those circumstances to trammel the majority of the people in their endeavors to restore their rights and liberties if this is to take them away. It is very much like the Constitution of Kansas that was adopted at Lecompton and submitted to the people of Kansas. They were to vote for the constitution with slavery, or for the constitution without slavery. But no matter how they voted, it was for the constitution all the time. And, sir, the statesmen of the country repudiated it, sent it back, because they said it was at war on republican principles. And I contend it is nothing more than this case; because when this Convention presents this Constitution to this people, it is a dernier resort: there is no alternative but to take it and then if you bind their hands when they have tried it, they cannot get rid of it or cure its defects save and except by a vote of two-thirds, you are placing the whole power of the people in the hands of a meager minority and that is at war with republican institutions. I hope therefore this amendment will not be made
MR. VAN WINKLE. Mr. President, I am opposed to this whole section, sir, to any such provision in the Constitution, I am willing, however, that those who are friendly to it should perfect it by such amendments as they may see fit to offer and pass and expect to offer a few amendments to it myself in the hope that they may be adopted and in the case the section should pass it would be more in accordance with my ideas on the subject. This is not as it stands a proposition to limit the power of the legislature over the sub- ject but a proposition to limit the power of the people; and to that, like the gentleman who last addressed us I am decidedly opposed.
In the present Constitution of Virginia there is no provision in reference to amendments of the constitution nor calling conventions for the purpose. If this provision had existed, sir, the convention that assembled in June last would not have been constitutional, because it would have been impossible to get a legislature to call a convention. It is very true, sir, that the circumstances in which we were placed in June last, even with such a provision in the Constitution would have justified us in overriding it - circumstances such as would have justified any step on the part of the people to reinstate themselves in possession of their government. But even then if we imagine no such a state of things is again to arise, this is crippling the power of the people over the subject more than it ought to be. It may be desirable, sir, that the legislature should be somewhat restricted in its action in reference to this matter; and among the amendments I propose to suggest is one to introduce at the beginning that no convention shall be called by the legislature except under these circumstances that are provided for. There is another very objectionable feature in it, sir. That is, that the legislature, the inferior body, is to prescribe to the superior body the people assembled directly in their majesty, what it shall do. It is very similar to an attempt that is now making elsewhere to define and limit the act of the direct representatives of the people, to think for us, to prescribe for us our duties and even assuming a censorship because we did not do precisely in accordance with the whims - for it is nothing better - of two or three gentlemen who seem to be monomaniacs on the subject. I should not wonder if some of them went crazy before the week is out. It is now to be determined whether this body sitting here as direct representatives of the people of the new State if it is ever made, whether they are to place their successors, a similar body elected by the people, or in the case supposed here, sent to alter a constitution - whether they are to send to their high mightinesses sitting in another body to know what they are to do. Now, sir, I am against all that. In reference to the call of the convention in 1850, in the State of Virginia, it was called, sir, in pursuance of the wishes of the people. It is true, it was not called as soon as it should have been. But the voice of the people was coming up - and coming up - and coming up! And as they sent representatives they were instructed that at last the convention was called. Sir, I took the ground there, as I take it here, in the very opening, in the speech I had the honor to make there on the basis question, I started out with the idea that we were there with a blank sheet of paper on which to write a constitution, not bound by anything that preceded us nor anything else than a just regard to the wishes and will of the people we represented. When, sir, you give to the legislature a power to alter a constitution, the power to initiate alterations to the Constitution - that is, if you give to them the sole power - no doubt, provisions of this kind are necessary; but I can see no reason to confide it to that body or enable them to place restrictions on those whom the people will send there to make it. It is against principles advocated on this floor already from every section. Every man here is instructed, as it were, by his own constituents; and the very beauty, the system and efficiency of republican government is in this; that while every man here is the representative of his own peculiar constituents he is also acting for the whole. Every man comes here in favor of the wishes of his constituents, and he will endeavor to carry them out as far as possible. He is controlled, if not in his own opinions and acts finally by the majority of opinions here, and in that way the will of the people, which is always the will of the majority of the people, is fully ascertained and determined. Who knows, sir, when a convention of this kind meets, what exigencies may arise? Who knows until they assemble and compare notes and learn the views and feelings of the different portions of the State what it may be necessary for them to do. Here, sir, some person or persons having objection to some particular clause of the Constitution as it stands, and desiring to introduce some provision beneficial if you please, have got this Convention called; and as nothing occurred at the moment in reference to other provisions, this Convention, called, of course, at the same expense as if there for other purposes, this Convention is limited to the one thing that happened to be in the minds of the legislature when they called it. But when we come together we find that from one section of the State one amendment is desired, and from another, another, and so on. How is it to be supposed, with these members met here to represent the will of our constituents and with the condition always that the Constitution goes back to their constituency for approbation, that they are to be tied up and trammeled by an anticipatory provision of this kind? There can be no necessity for it.
I am, perhaps, sir, rather wandering outside of the record on the precise amendment before us. I would say, sir, as a general rule I am opposed to requiring any more than a majority of the whole number of members elected to each house for hardly any purpose. I would be in favor, for instance, in reference to these heavy appropriations of money that I was getting the will of the people, because so many private interests enter into that that you cannot be sure that all the members are voting precisely as they should. But in reference to ordinary matters of legislation I think the fair republican principle is that if a majority are in favor of it, it ought to prevail.
MR. LAMB. Mr. President, I should be opposed to the amendment which has been offered by the gentleman from Wood because I think that if a majority of the members elected to each branch of the legislature should be in favor of calling a convention, there would be a very just inference that a majority of the people wanted the convention also. But for another reason, that even if a majority of all the members proposed the section still requires that that proposition shall be submitted directly to the vote of the people themselves before it receives vitality. I think that these are perhaps guards enough in reference to this matter. The people, I am satisfied, are pretty well tired of conventions. But if the majority of all the members elected to the legislature propose to the people to call a convention and a majority of the people approve that proposition where is there any power in this body or any other that can prevent a convention being held? The objections however of the gentleman from Wood (Mr. Van Winkle) strike me as most extraordinary. What is this proposition that is submitted to this convention? That a majority of the members of the legislature may propose to the people to call a convention; that if they do propose it, they shall give distinct notice to the people of what this convention is to assemble for; that the people shall know when they vote on that proposition what this convention is called for, whether it is to pass an ordinance of secession or to amend the Constitution of the State. Is there anything improper in this? Is there anything at variance with republican principles in this? The objection does strike me as most extraordinary. Ought not the people to know when a proposition is made to them to call a convention why and for what purpose that convention is to be called? Ought not the people when a proposition is made to call a convention to have the right to say by their own votes whether that convention shall be called or not? And yet these are the provisions to which these extraordinary objections are made. I must confess, sir, in regard to this question that I have no such anticipations that we shall be able to make so perfect a constitution that no amendment will be necessary. I want, and have prepared, a proposition for the purpose of amendments without reference to a convention which I will submit when the Convention acts on this proposition. But I do want to provide that unless a majority of the people having full notice of the objects for which a convention is to be called shall approve, there shall be no convention; that we shall be done with it.
MR. STEVENSON of Wood. Mr. President, I do not propose to take more than about two minutes to reply to the arguments which I think have been presented against this motion to strike out. Besides, I intend to make my speeches generally about that length and I hope the members generally will not exceed that.
A good deal has been said that has no relevancy to the amendment under consideration. And what has been said in reference to the amendment, it seems to me, has been based on a wrong supposition to begin with. The premises upon which the gentleman started out to argue are wrong. It is like the man in Scripture who built his house on sand. When the winds rose and the floods came it fell and great was the fall thereof! I do not know that I can say that about the house these gentlemen have built here. It is not a very big one. Now, sir, it is asserted here by the gentleman from Ohio on my left that when a majority of the members of the legislature are in favor of calling a convention it is a correct inference that a majority of the people are in favor of it. Now, sir, I take it that that is, to some extent, a mistaken argument - a mistake of the fact in the case. It is not likely, sir, as a smaller body of persons are more likely to be mistaken than the great mass of the people if they have had time to investigate it. And therefore it is very possible that under many circumstances a majority of the members of the legislature should be in favor of calling a convention while the great mass of the people are opposed to it. But says the gentleman, suppose the legislature had passed an act authorizing the people to decide the question of whether they shall have the convention or not, is not the question still left with the people? To be sure it is. But if you will read the section you will discover that that act is to make provision by which the polls shall be opened in every district of the State and therefore the people must go to an expense of many thousands of dollars to vote on the question of having a convention. They are sure to vote against it, but in order to have that vote you have an excited canvass all through the State and you add to the expenses of the people many thousands of dollars. Now, sir, you could have avoided that probably, by having a provision that instead of a majority of the members of the legislature having the right to call that convention, or at least authorize the people to vote upon it, it should require two-thirds. I think that argument is answered.
Now, sir, I base my principal argument - and I think it is a good one - in favor of this proposition upon the fact that in many eases particularly in a state of great public excitement such as we had at the termination of the last Presidential election a majority of the members of a legislature may be induced to call a convention and then tax the people with the expense of holding these elections for no purpose whatever but to get a vote on that question which was probably unnecessary at the time. Now, sir, there is a further consideration. Any man who will look at the history of this country for the last year must see that the calling of these conventions under such circumstances as I have alluded to have been the principal cause of plunging this great country into the red sea of secession and civil war. And so, if the legislature is to have this power, I am in favor of restricting them to the utmost limit at least within the degrees of propriety; and I do think, sir, that a provision requiring two thirds of the members of the legislature to call this convention or to authorize people to vote on it, will accomplish that purpose.
In regard to one other argument which was urged by the gentleman (I think) from Kanawha, that it would be a restriction on the people, now I think not. If there is a necessity for calling a convention, it does seem to me if there is any great public question that is to be decided upon and the people think and believe it to be such there will be no difficulty if the emergency is such as that, to get two thirds of the legislature to call that convention; and if there is such an emergency and the legislature does authorize the people to vote on the question of a convention then they will have a convention and the expense of an election and the canvass through which they will have passed will not be for no purpose.
These are considerations, sir, which induce me notwithstanding what has been said against the proposition to insist upon striking out a majority and inserting two-thirds.
MR. STUART of Doddridge. Mr. President, I shall be even shorter than my friend from Wood. I only want to give the Convention one illustration. If this provision had been in our Constitution of 1830, we never would have got a convention - never! It would have required two-thirds of the legislature to submit the question to the people. It will be recollected that the whole northwestern country and the valley of Virginia were unanimously in favor of the calling of a convention, which was pretty near an equal division of the eastern portion of the State in favor of and against it. Under these circumstances, one-fourth of the people of Virginia would have controlled the action of the state legislature and we never would have had a called convention. The same state of things may arise again. We should avoid this thing. Adopt this amendment of the gentleman from Wood and a little over one fourth of the people of the State may hold on to the present Constitution we frame in opposition to three-fourths of the people and they never can change or alter it. Because there will be local interests. One half the State may be unanimous While the other half may be pretty equally divided and the one-fourth will control the action of the legislature and will hold on to a constitution that three-fourths will be opposed to.
MR. BROWN of Kanawha. The gentleman from Doddridge has given us one illustration of the bad effect that a provision of the kind proposed in this amendment would have had, and it is a practical one too, of a practical bad effect. Now I propose to give him another practical illustration of the total failure of his amendment to meet the difficulties in the emergency to which I had supposed the gentleman alluded in making the amendment. Now, sir, will any one remember what was the vote by which the Convention was called by the legislature in 1860-61? I do not precisely remember but if I am not very much mistaken, it was very largely over two-thirds. That there was no difficulty at all in carrying it no matter what had happened the prohibition in your constitution. And I am free to say if it had required unanimity I have no doubt they would have accomplished it then. So that while this amendment only trammels the people in obtaining any necessary amendment to the Constitution in ordinary times of peace, when they are seeking to get rid of evils that experience has proved to exist in the Constitution, in these times of excitement, of revolution, of determination amongst the most of men to tear up and tear down the government of the country, then, sir, your Constitution and all your restrictions are like chaff. They never stop the mandates of the people when they rise in their might or even large proportions of them. So that restrictions intended to stop the very evils we have been witnessing lately wholly failed to accomplish the end. They furnish trammels against illegal action in ordinary times of peace but fail to relieve the very difficulty they are intended to reach. Whenever you find a people rising to the position our people attained to very recently, then, sir, no paper constitutions, no power or government or anything of the kind but absolute physical force by numbers and by steel can maintain the government in its organized course and provisions. Constitutions are as nothing before maddened men and they in numbers sufficient to execute their designs by force. It is idle and useless for us to frame a Constitution predicated on the position that a restriction to two-thirds of the legislature is going to prevent such evils as we are now passing through. I therefore cannot go for this amendment.
MR. RUFFNER. Mr. President, I rise merely to dissent from one doctrine announced by my colleague here, that the people of this new Commonwealth are going to adopt whatever constitution may be prepared by this Convention for them with all its errors and defects and its total changes in our accustomed institutions whether they approve them or not. I for one, sir, dissent from any doctrine of that sort, and I say the people will be free to canvass this Constitution and accept or reject it according to its merits.
MR. BROWN of Kanawha. I rise for an explanation. I do not desire to be understood as my colleague has understood me, that we are going to adopt this Constitution with every error in, but I intended to present this idea that under these circumstances we are much more liable and likely to do it. This Constitution I admit may be made so bad that with all my disposition to adopt it, I may be compelled to reject it and thousands of my fellow citizens likewise. But the idea is that we are much more likely under this pressure to adopt than if we were entirely free to discuss these questions.
MR. RAYMOND. I am in favor of the motion of the gentleman from Wood. I do think, sir, that to call a convention we should have two-thirds. Our legislature, Mr. President, is generally filled up with politicians whom I and the people have very little confidence in. I think therefore, sir, it would be best to require two-thirds of them to call a convention.
The question was taken, and the amendment was rejected.
MR. STUART of Doddridge. I move to amend by striking out all after the word "legislature" in the 283 line the words: "declaring distinctly the powers and objects of such convention and," I think, Mr. President, it must be apparent to members of this Convention that this should be stricken out. I cannot understand the object of it. If in declaring the powers and objects of such Convention it is the object of the framers of this section to confine the action of the Convention to specified objects and that we shall not go outside of it, it does seem to me we have not got that power; and if that is not the object, I can see no use in it at all. The act that called us into existence, I believe, started out by declaring our powers and duties. Still we certainly fall very short of being governed by the ordinance that called us into existence. I understand that when a convention is called that that convention is supreme in power, that it knows no power above it, that it is equally true of our successors, that we cannot pass a law that will bind a future convention, who has as much power and control as we had. And I understand, when a convention is called as the gentleman from Wood remarked (Mr. Van Winkle) that our constitution is as a sheet of blank paper and the people have a right to frame and adopt a constitution new and entire without any reference whatever to the constitution they have formerly been living under. We are bound in our action by no constitution, by no legislative body defining our powers and duties. If so, sirs, we had better adjourn. Quit our labors at once, because we have far exceeded the powers that have been given to us if a legislature can control our action. It does appear to me, sir, that these words ought to be stricken out of this section unless we are governed now by the action of our present legislature. Who seems to think that we ought to be controlled and dictated to by them? They do not consider that we are legislating for the new State and adopting a constitution for West Virginia and that they are a legislature for the State of Virginia and they have nothing in the world to do here. And when a legislature calls up the subject to know whether they will have a call for a convention, it does appear to me that legislature has no right to define the power and duties of the people; and that people have a right to speak in this thing; and that their delegates whom they select ought to have the power to control this matter and will know what the people want and not the legislature. The legislature is the mere servants of the people. The Convention is the people themselves. They come up by convention; and when they go there it is just as though a blank piece of paper was laid down before them and they know no other power or authority but the people. Merely submitting the question to the people and we defining the powers of the convention which the people may desire to call together and elect seems to me is perfectly absurd.
MR. LAMB. Mr. President, I have been laboring, if the gentleman's doctrine is correct, under an entire misapprehension in regard to this subject, from the commencement. I started on the principle that all power rests with the people, is derived from the people; that the people can confer such power as they please on a convention or legislature or any other body. If it is proposed to the people, it is not the legislature limiting the power of that convention at all. If it is proposed to the people to call a convention with limited power, to call a convention under a law which specifies the objects for which that convention is to assemble, and the people do call a convention for that purpose, then, sir, the convention has no more power than the people have conferred upon them. That is my doctrine on the subject; and I do utterly repudiate the doctrine that it is impossible for the people themselves to call a convention unless that convention is an unlimited tyranny. I say the people have a right to call a convention for this purpose or for that purpose; and you look into the law under which the convention is called and you see the purpose for which the convention has been assembled. Still there is one consideration which induces me to say that I have no particular attachment to the words that are stricken out and it is this: that put what provision you may in your constitutions as a declaration of your opinion in times of great excitement, and is not a practical limitation unless that opinion is ratified by the people. The gentleman (Mr. Brown) has said very truly, that in times of great excitement your paper constitutions do not stand in the way of an excited part of people. Still it may be right to put upon record, it may be right that the people that are to vote on this Constitution should record their sentiments, that such and such principles even in such times ought to govern the action of this Convention.
The gentleman from Doddridge, it seems to me, puts the matter entirely upon a false basis -when he supposes that this clause is intended to confer on the legislature the power of limiting the convention. If it has been proposed to the people to call a convention for a particular purpose, if a proposition is made to the people that a convention shall be called for one object or two objects and that convention the people approve of, call the convention for such objects, are we to be told that that convention when assembled has unlimited powers? Have the people - the fountain from which all power flows - have they conferred - can you properly say they have conferred - upon that convention unlimited powers? Did the people ever confer upon the convention which assembled at Richmond the right to pass a secession ordinance? Did they intend to do it? Is it a correct doctrine that these conventions when assembled must necessarily have unlimited power? I say not, most decidedly not. They are called for such objects and such purposes as the people intended when they assented to the call.
MR. BROWN of Kanawha. Mr. President, I wish to say, sir, that I regard this as a very important section, indeed, and therefore must beg the indulgence of the Convention for the pertinacity with which I shall adhere to its provisions. I have considered this with some care and I am unable after an examination of it to see that I can propose anything better than this section contains as it stands. Whether we look to the right or to the left we will find difficulties but the real question is: on which side will we find the least? We have witnessed in these recent struggles evils resulting, I think from what I consider a fundamental error, and that error, I regret to say, I think is still lingering in the minds of not a few in this Convention. That is, that a convention once called by the people in pursuance of law is clothed with complete sovereignty to do as it pleases. There are a few fundamental principles, sir, that formed the basis and guide of my life in a political course as near as I am able to carry them out, and one is that all power is vested and originally was in the people, and from them alone derived. And another is that all officers and representatives are but the agents and the public servants of the people. Is it at all strange that he who has the unlimited power in himself to do as to him seems best and he chooses to appoint an agent that he is so stripped of power that he cannot control and guide and determine the conduct of that agent? Why, sir, the very possession of power unlimited in myself to appoint also includes the power to control and restrain that agent in conformity to my will, not his; and it is to give him in the way-bill in which I gave him the appointment also the rule that is to guide his conduct, beyond which he shall not go. This Convention - men assembled in pursuance of the mandate of the law, by the order of the people, are as much the agents and public servants of the people, who alone are the sovereigns as is the delegate in the legislature controlled and trammeled by the constitutional provisions he has been sworn to support. And if the legislature, in pursuance of the law, have laid down and prescribed the way-bill, the powers that are to be conferred on this Convention - on these members of the Convention - that act of the legislature has given to these parties no powers whatever. It is only making the legislature an amanuensis to write down the way-bill which is to be ratified and confirmed by the people; and they see when they vote with their eyes open what powers they are delegating to these agents and are thereby enabled to determine whether they will place their powers in the hands of these agents or not, to be abused or used. You call a convention generally, and then having to go it blind, they give themselves to these home-made tyrants. For, sir, tyranny is as complete in the hands of untried men as in the hands of one emperor. I maintain, in the convention that has assembled, that has brought us into these difficulties now, one of the very evils we are suffering from is the fact that they disregarded and departed from the rule that is prescribed to them in their conduct. They were assembled for a specific purpose and have disregarded it and assumed all powers to do as they pleased - not only to override the wishes of the people but even the constitution. It was started in South Carolina and it has been asserted in every newspaper that has advocated secession, that when a convention has once assembled it is absolutely sovereign and even the people who elected it cannot control its action. I repudiate the doctrine. When the people elect a convention, its purpose is prescribed by law. The only authority appointed by the constitution to prescribe the powers of a convention is the legislature. It ought to be distinctly prescribed for what this Convention assembled; and if it is the intention of the people to have a convention with unlimited powers, why then they will say so in the law. If they do not choose to trust these people with these powers, they will say no at the polls.
There is another objection that strikes my mind. If you prescribe plainly, so that the people can understand when they vote for a convention or no convention what powers are to be delegated to it, then. they are more competent to decide, and then if that convention assumes to itself sovereignty and disregards those powers and does acts at war with delegated powers - in contravention of the directions of the people - why, .sir, when you come back to the people and ask them to ratify it and affirm it, it can do as the Richmond convention did: well, sir, the Convention have adopted it and therefore it must be right and the people ought to yield to what their delegates have done. Now, sir, we can say, there is a specified power granted which they have violated and therefore they ought not to be regarded and trusted at all. That they have violated these powers is the strongest reason you can urge why you should not ratify and confirm the action of such faithless agents. It is for the security of the people, therefore, that you define specifically the powers you intend to delegate. And ever hereafter a free people will be cautious how they trust their rights and liberties in the hands of an irresponsible convention. It is putting everything at stake in the hands of a few men; and the only thing that has been reserved to us was to vote upon it when it came back; and then when they get the power into their hands they will give you no opportunity to vote as freemen. They will cover your land with soldiers from foreign states, and they will accomplish by unlawful means the ratification of their designs when they violated the trust reposed in them by the people. Let us therefore restrict them in declaring specifically what their powers shall be and if they violate them they will hold them accountable.
MR. VAN WINKLE. Gentlemen have felt themselves free to say that other gentlemen have mistaken this whole matter; and perhaps it may justify me in saying that some other gentlemen have mistaken this matter.
Now, sir, in reference to this question of secession, the convention that assembled at Richmond and which did the deed was authorized by the legislature to do it. The act of the legislature calling that convention authorized them to do whatever they might deem expedient for the safety and welfare of the state. The fullest and most unlimited power was placed in their hands by the legislature. So far, then, according to the doctrines that have been advanced here and embodied in this section, that convention was all right and had the power it exercised. But they failed in this, sir. The question of convention or no convention, never was submitted to the people. There was the first wrong step; and I say that such a submission of the acts of that convention was nugatory. Suppose, however, that the question of convention or no convention, had been submitted to the people, and then the people had voted in favor of that convention? I ask whether that convention had not, so far as they could derive it from the legislature the right to commit the act of secession? Plainly they had, sir, but for this: the language of the compact, the language of the constitution denied the right of secession, and therefore the people themselves had not retained the power to secede except as a revolutionary measure; and every pretense that was set up in the convention at Richmond or any other of those states that they were doing a legal act, a constitutional act, that they were withdrawing from the Union under the constitution - all that, sir, is false and hollow pretense; and there is where the act of secession becomes an enormity. But if this section had been in operation in the State of Virginia at this time - with this simple exception, that the question of convention or no convention, was not submitted directly to the people. If the people elected delegates to that convention, with that single omission - if that had been there, then unless there was something in the Constitution of the United States itself to forbid secession, then secession was right. Or, rather, while it was not right, the power to do it was properly reposed, according to this section, in that convention. But then it would require another ratification, according to my doctrines. But this is not a matter, in reference to the power of conventions, that is to be decided now - not a matter to be decided by our preconceived notions. It is settled if precedent can settle anything. We have our legislative and our executive to which we confide the administration of certain powers of the State, proclaiming everywhere, in the Constitution of the United States, and in the very language of the constitutions of the several states, that all other power is reserved to the states and to the people. And now how is the expression of the people to be had on these grave subjects? By a convention. It is the settled mode. It has the precedent of every State in the Union and of the United States itself, that conventions called for the purpose are those that are to exercise the reserved powers of the State and of the people. A convention, then, is called without restriction on its powers. It is called to deliberate on those matters which lie behind the legislation of the State. It is called to deliberate on those matters which are embraced in the constitution of the State. It is called to debate upon matters which are far higher and above all ordinary legislation. And is a convention which meets in that way, without any distinct definition of its powers, by the act of the people themselves, to be so trammeled that it cannot perform the very act for which it was called? A state of things has arisen from which the people need relief. They are not to be trammeled by some legislative provision of the inferior body - a power that is against the very theory of a legislative body. They are to act in obedience to the written constitution. That is the doctrine on this side of the Atlantic, at all events; and the convention that is to assemble is to act over and above the constitution if the constitution itself gives any power. Always their acts are to be submitted to the people for ratification.
But I think the gentleman from Ohio is under a wrong impression also. He seems to think it will be simply set forth that this convention is to assemble for an amendment to the constitution or to perform the act of secession. That is not my understanding. If that was all, I do not know that I should object to it. But, sir, some person wants an additional circuit perhaps, and then the legislature calls a convention for the purpose of making an additional judicial circuit. The convention, clothed with the authority of the people, coming direct from the people, meet together; and although it may be represented to them that there are a hundred other evils existing that ought to be remedied they are confined to providing the additional circuit. That is what I object to. We do not want these conventions called every day. They are, of course, expensive. They take men away to attend the polls at extraordinary elections interfering to that extent with the ordinary pursuits of the people, and they should not be held every year or every five years if it could be avoided.
My doctrine is, therefore, that when this convention does come together, clothed with the authority of the people to look into the constitution to see whether it does not need amendment, that they shall be free to act within the scope of their powers; that they have power to recommend such amendments to the constitution as they may see fit, and the people can adopt or reject them at their pleasure. But my friend from Ohio must remember the people have not the right to propose amendments. Or if they have the right (as they have unquestionably) they have not the means of doing it. I mean the people in the country. They have that power and the means of exercising it through the instrumentality of a convention; and it is the only way in which they do have it. And, sir, what harm would ensue if when a convention is once called it takes the whole subject into consideration. I have seen it where two successive legislatures in some states recommending an amendment, that amendment goes to the people to be voted on. That may be a way and convenient in some cases to provide for the assembling of a convention but it is a very slow way, and I do not know that it is a very efficient way. It might be well enough perhaps if some error had been committed by the representatives of the people in convention and had been equally promoted by the people themselves that there should be some way of proposing amendments to the constitution as is vested in the two houses of Congress and in some states is vested in the legislature. That might be well to guard against an oversight of that kind. But when a convention is clothed with the authority of the people it is contrary to every principle on which these bodies are organized, to all precedent in the history of this country, to the very nature of the case, that they should be confined to deliberating upon single amendments which happen to be picked out by the legislature for their action. Let them take up the whole subject and the necessity for a convention every two or three years will be obviated. There is not too much haste. Constitutions have been freely altered throughout the country, but few alterations have been radically or materially changed under at least twenty years. In the great progress that ;has been making in the science of legislation, as in all others, our material enlargement, such as railroads and other facilities, has no doubt required meetings of the people in convention oftener than would be required under other circumstances. These great inventions that the awakening of the nineteenth century has witnessed .have made it necessary frequently to introduce provisions in the constitutions that were utterly unknown before. These great works of internal improvements have called for many restrictions in our Constitution to safeguard others that would have been unknown in the previous century. "We must keep pace with the times," as Jefferson said, and a few years of experience in reference to these matters are worth more than all the book learning ever made on the subject. I maintain, again, that when the people do assemble in convention by representatives directly from them they should be free to act within the proper limits of such bodies. Circumstances often do impose a limit even on conventions. They cannot be a tyrannical body when their acts are of no force until ratified by the people. The argument drawn from that consideration is a nullity here. No one proposes that a constitution be made by a convention is to go into operation until it has received the sanction of the people. If the seceded states had dared at the time when they first seceded to submit their acts to the people of their states, it is doubtful whether one of them would have assented to it. If the act of secession had been fairly submitted to the people of Virginia - although I deny that we have any evidence that a majority did sustain it - I am very certain if it had been submitted and the people had been free to vote on the subject, that act never would have been sustained by the people of Virginia themselves. Sir, from the beginning it was a usurpation; it was a continued usurpation; it was intended as one; and those who framed the law which the members of the house of delegates voted for, with the exception of four members - I do not know how it was in the senate - but they voted to put in the hands of the convention the power to commit the act of secession if they had not been restrained by the Constitution of the United States. They were to do whatever they deemed expedient. Not, as in the case of the June convention, to do what the welfare of the people might require. Their powers were unlimited, and they cheated the people by refusing to submit the question to them in a proper form. Before that question was submitted they had sold us to the Confederate states; and while the legislative act required that everything they did relating to the fundamental law - the relations of the state - should be submitted to the people, they did not even pretend to submit that convention with the Confederate states to the people; and they simply declared that if the people voted in favor of secession they were understood to vote in favor of joining the Confederate states. It was just as great a cheat as the case of Kansas, to which the gentleman from Kanawha alluded.
I do think, sir, there is a principle lying at the bottom of this. When the people do assemble in these conventions, the mode in which the reserved powers of the people have always been expressed, that power above all others should be free to act in the premises as the good people may require it. We are controlled, and will be, by the Constitution of the United States, and what we have assented to there we cannot gain-say that. We cannot overthrow it. We cannot separate ourselves from it unless by revolution. And with that single restriction. When the people do meet in convention, they will have - for they cannot be deprived of it by legislative restrictions at all events - the power and will exercise it to do whatever may seem to them good. And I do most solemnly declare if I were elected a member of a convention with these restrictions placed upon me that I would not regard them and would advise others to disregard them, believing them nugatory. That is my opinion, that any restriction placed on a body of that kind except by those who are the constituents of it would not be binding upon them. Certainly any one knows that unless the legislature was clothed by the constitution with power to restrict, they could not in the nature of things restrict such a body. But whether we could - as one gentleman here has observed, a Convention sitting here today representing the power and majesty of the people, have the right through a constitution or otherwise to bind another convention constituted precisely in the same manner is very doubtful. I know, sir, we hold that one session of a legislature cannot bind its successors. One session of any public body cannot bind its successors. Congress cannot; the legislature cannot do it. There is no act that the legislature can do within its constitutional power that the next legislature cannot repeal. And is it different in regard to this? Can one convention of equal power only bind another of equal power? To me the idea is preposterous; and therefore I am inclined to say that as I think even with such restrictions placed in the Constitution the subsequent convention would not be bound. There would be no authority there to bind it except one co-equal with its own. If one convention place their restrictions, the other convention having equal power, having the same constituency, coming together in the same way must have power to repeal what the former has done. Therefore I think that any restriction of this kind should be erased from this section, if I am right in my understanding of it, that they are not to prescribe the general scope of the Convention but to prescribe what amendments the new convention is to make. That is my understanding, that when the legislature passes an act calling a convention, it does prescribe the precise amendments which the convention is to consider; and then, as I have already hinted, when that act of the legislature is submitted to the people there is no means by which the people can say; we wish also another subject considered.
MR. LAMB. The gentleman from Wood, in showing the mistakes into which I have fallen, laid down this fact in regard to the Richmond convention, that so far as the act of the legislature was concerned which called that convention there was ample authority in that act for all the Richmond convention did. I think he will find - and, in fact, another part of his address admitted it - that he was wrong and I was right in this: that the act under which that convention assembled did not authorize the action of the Richmond convention. There was certainly a provision in that act under which the Richmond convention was assembled that no action of theirs changing the relation of the state towards the Federal Government should be of any effect until it was submitted to and ratified by the people; and what did they do? Was their secession ordinance of any effect until it was submitted to and ratified by the people? No. One of the grossest and most outrageous acts of tyranny which that convention perpetrated was that they put that secession ordinance in force before it was ratified by the people and that they placed the people in a position in which they could not exercise their own free judgment in saying whether that action should bind them or not. Even upon the law of the legislature which called them together, they were guilty of a gross usurpation of power in a most essential particular. In defiance of the very law to which they owed their existence, they fastened by military force that secession ordinance and the laws of the Confederate states, so far as was in their power, upon the people of Virginia, making the provision in that law that secured the people the right to vote a mere mockery.
MR. VAN WINKLE. Will the gentleman permit me to say simply that I say the whole subject of secession - everything connected with it - was forbidden by the Constitution of the United States.
MR. LAMB. That is not what the gentleman said. He said the law under which that convention was called was sufficient of itself to authorize their acts. I say the law itself under which it was called was violated, as they violate every other principle of republican government.
MR. VAN WINKLE. I said it was sufficient provided they were not restrained by the Constitution of the United States.
MR. LAMB. I say, in addition to that, that they violated the very act under which they were called in its most essential particulars. There is a radical difference of principle in regard to this matter between the gentleman from Wood and me. The gentleman contends - and it is the principle on which his whole argument is based that a convention cannot be assembled but what it becomes vested at once with all the reserved powers of the people. This is the principle upon which he bases his whole argument. My principle is radically different. I say the people have the right to vest in the convention what powers they please, as they can do in any other public agent. I say the convention is necessarily the agent of the people, the servant of the people, and vested with just such authority as the people have seen proper to confer upon them. It is not one convention pretending to bind another. It is the people who bind both. It is not a legislature pretending to bind a convention or to limit their powers. The act of the legislature that proposes a convention derives all its force from the vote of the people who approve of that act. It is nothing more than a mere proposition of the legislature until the people act upon it. If the people so act upon it as to authorize the call of a convention under that act, then that action becomes power of attorney to this agent, becomes the constitution, in fact, of this body, which is called under and in pursuance of it - their limit to the purpose and objects which are declared in that convention. If I supposed that the clause which is now under consideration was to operate in the way the gentleman from Wood represents that it will, I should be very willing to give up this clause. If the legislature are to frame a particular amendment to change a judicial district and then call a convention to act on that, do any of us contemplate that conventions will be called on such subjects? I suggested before and I think it will be necessary to adopt as a part of this Constitution some provision for making occasional amendments without resort to conventions. I have examined the constitutions of the different states in reference to that matter and I find in no less than twenty-seven out of the thirty-four they adopt some plan or other of obtaining occasional amendments without the necessity of resorting to conventions. The provision which was mentioned by the gentleman from Wood is a very common one that a particular amendment which it is desirable to make to the Constitution should be proposed by one legislature after a new election intervened and a new legislature is chosen by the people, the people having full notice that such amendment has been proposed and electing new members to each house with reference to that particular subject. Then a subsequent legislature acts upon it, and, if they approve it, it goes to the people for ratification at the next general election. Some provision of this kind it will be necessary to have in the Constitution; for I do not imagine we are going to make so perfect an instrument that it will not be necessary to amend it in some particulars. It is necessary to have some provision of that kind for another reason. These conventions ought to be reserved for great and pressing emergencies. They are not the sort of a body to assemble for the purpose of considering whether a judicial district shall be altered. It is not for purposes of that kind that they should be called.
I must confess the greatest objection I have to see this section stricken out is that it may be regarded as expressing the sentiment of this Convention in favor of the doctrine that has been here advanced that no convention can be called unless it is ipso facto necessarily invested with all the reserved powers of the people. I do protest against that doctrine. I repudiate it entirely. It is the doctrine which has led us and the other states into secession. Had the convention at Richmond regarded even the act under which they were called, the people of the State of Virginia would have been secured at least a fair vote on the ordinance of secession if nothing else. But they held, and it was the current doctrine there that these conventions were unlimited; that they possessed, they represented, the sovereignty of the people. No, gentlemen, No! These conventions are like every other body that is elected by the people, and every officer that is elected by the people, they are the agents and servants of the people, invested with such authority and such authority only, as the people have conferred upon them.
I wish before I sit down to make an explanation of the section, which may be misunderstood. It proposes nothing but this - this is, in short, the effect of the section: That the legislature, by a majority of all the members elected to it, may propose to the people to call a convention, specifying the purposes for which that convention is to assemble, that that proposition has no further effect than to secure a vote upon it by the people; that if the people ratify it, then the convention is to assemble for the purpose, with the powers, which the people acting under that act have conferred upon them; and, further than this, that after they have assembled their ordinance must be submitted to the people for ratification. That is the simple object of the section.
MR. STUART of Doddridge. Mr. President, I do not want it understood by any means in the world, sir, that I look upon a convention as having supreme power. I want it distinctly understood that I hold that a convention is limited and controlled by the Constitution of the United States, and that all powers not denied to the people by the Constitution of the United States are held by the convention. Of course, we do not pretend to say that a convention called by the people, a state convention would have the power to act in conflict with the Constitution of the United States. We deny that right.
MR. LAMB. Excuse me one moment. I did not suppose the gentleman did advocate that doctrine, nor did I say he did.
MR. STUART of Doddridge. Yes, sir.
MR. LAMB. The Constitution of the United States itself says that the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people. But I did suppose the gentleman was contending for this doctrine that all these reserved rights of the people - the whole sovereignty which the people have under the Constitution of the United States - is necessarily conferred upon the convention. That doctrine I deny.
MR. STUART of Doddridge. It is not necessary to bring up the ordinance of secession passed by the Richmond convention last winter as an argument against striking out these words. Because it was not entertained there even by a majority of the Richmond convention that they had the right of secession but exercised it as a revolutionary measure. And we can do nothing here in the world that would restrict the people in exercising what they call their revolutionary rights. It makes no difference what kind of a constitution we frame - whether we say the power shall be distinctly declared by the legislature to call a convention or not - when that convention assemble, we can do nothing here in the world if they propose to take upon themselves revolutionary rights, because that is a power above all other if they choose to exercise it. There is no necessity of trying to legislate against a matter of that kind. There could have been no danger had the convention at Richmond last winter respected the provisions of the constitution of 1850-1. That would have prevented them doing what they did. They exercised what they called their revolutionary rights and took the power into their own hands, disregarding the will of the people.
But I want to avoid this difficulty, declaring distinctly the powers and objects of such convention. If the legislature sees proper to submit the question to the people whether they will have a convention for some particular purpose that we do not want, the people shall be confined simply to the action of the legislature. Then the people cannot have a convention unless it is restricted and confined to certain powers that the legislature may see cause to present to them. There would be no way by which the people could have a call for the convention if we adopt this only by the legislature restricting and defining what powers it may exercise. They cannot get it. The people may want other amendments to the constitution. That would be defined by the legislature. They could not do it if the legislature sees fit to restrict the people, if it is the option with them to do; that it is the people who have the right to say what they want done, and if they want to call a convention their delegates know what the people want and they will conform to it and not be restricted by any legislative action on the subject. There is no power of calling a convention at all if the legislature has to define and restrict it. Let the legislature do it. Let the legislature adopt it if they have the framing and forming of the acts of the convention, why not give them the power at once? There is no propriety in calling a convention. I cannot see the object and purpose of it, calling a body here who are restricted and confined and whose labors are pointed out and whose acts are to be confined to the action of the legislature. Give us the power to complete the work when we are collected together.
MR. POMEROY. I am in favor of the motion of the gentleman from Doddridge to strike out this clause because the clause is unnecessary. No practical benefit is to be derived from it. I concur with the gentleman who has just taken his seat that if the legislature is to define all the objects and all the powers of the convention that is afterwards to assemble, why not go on and do the business themselves? If they know exactly all the amendments that ought to be made to the constitution - what the desire and wish of the people is - why trouble the people with voting for new men and voting upon the subject of whether they will call a convention or not. If they know all these affairs, why not transact the business themselves? Then besides, I imagine that with all the wisdom that may be found embodied in the legislature at a particular time, when they pass this act calling and specifying that there shall be a convention at a certain time, how do they know of the questions that the people may wish acted on months afterwards? It provides that some three months after the act shall pass the vote of the people shall be taken. How many evils among the people in the different counties labor under, would these members of the legislature be aware of at the time they pass this act? The question of a convention has not been agitated and brought before them in the way that you can determine what the wishes of the people are at that particular time. And after the act is passed and the people begin to look into their old constitution to see what amendments they wish made. And therefore I believe that the convention is the people assembled. Not all the people in the mass, because that would not be convenient, but they have delegated to the members of the Convention the powers that belong to the people themselves. They come up there. Why should they not have power to take up any legitimate subject that may come before them? Not to violate the Constitution of the United States, which is the supreme law of the land and which we ought to recognize as such, and do, and which all men ought to that live under this Constitution. But to adopt such amendments as the people may demand at their hands. And they will be held responsible by the people. And I believe these powers ought to be lodged in the convention itself and not in the hands of the legislature. And, therefore, without making any lengthy remarks - for I think the subject has been very fully - I might say without any flattery, very ably - discussed, why I am in favor of striking this clause out; and I would indicate that I wish the yeas and nays on this question when it is taken.
MR. PAXTON. It appears to me the question we are called to decide by the motion of the gentleman from Doddridge, to strike out, is a very simple and plain one. It is merely whether the people in calling a convention - because conventions are called by the people and not by the legislature - whether the people in calling a convention have the right to restrict that convention; or whether in the language of the clause itself, they have the right to declare distinctly what powers and for what objects such convention when called shall exercise and act on; or whether, on the other hand, in calling a convention, they surrender entirely their sovereignty into the hands of that body - create, in fact, a body of despots; because that is what they are when the entire sovereignty is surrendered into their hands. Viewing the question in that light, I cannot hesitate a moment as to my vote on that question. I cannot believe the members of this Convention can hesitate in regard to it. I hope it will by an overwhelming vote repudiate the principle which at least seems to be implied by the motion to strike out this part of the section.
MR. HERVEY. I shall vote to strike out. I have prepared a proposition identical with that proposition now under consideration. The gentleman from Ohio seems to be afraid of despots and despotisms. That is what I propose to avoid; what is proposed to be avoided by the amendment of the gentleman from Doddridge. I maintain that by this proposition the people have merely a negative vote. They have no affirmative vote as to originating propositions. The legislature makes propositions. They are submitted to the people. If the people condemn those propositions, what then? Nothing else. Wait for another little budget of papers from the legislature. I am decidedly in favor of striking out. I am in favor of this power remaining where it is and where it ought to be, with the people themselves, and not delegating it to the legislature and thereby incorporating in one body both powers of legislation and power to make a constitution. I maintain that if this provision is retained the people of the State have merely a negative vote; not a positive or affirmative vote. I shall vote to strike out.
MR. STEVENSON of Wood. Mr. President, I wish to add a very few remarks in reference to one portion of this subject which I think has not been so much spoken of as the subject in general. I may say first, sir, that I regard the provision as it reads as a very wholesome one, and shall vote against the amendment of the gentleman from Doddridge to strike it out. I was in favor of restricting the legislature even beyond the restriction in the section here on this very subject; and I am now in favor of limiting any convention that may be called by the legislature upon any subject, or at least upon some subjects upon which they may be called to act. The idea is conveyed by remarks which have been made that the convention, if this provision is retained, will be necessarily restricted and unable to act as the necessities and public interests of the time might seem to indicate or require. I think that is a mistake; because although the convention thus called by the legislature or proposed to be called by it, although limited, may be said notwithstanding that limit to have almost an unlimited power if the legislature see proper to give it to them. The legislature - if I understand this properly - are to declare distinctly the powers and objects of such convention. If there are great questions at that time in which the public are interested or which public safety may require, the electors to act upon, is it not clear the legislature can give the convention power to act on all such questions; upon any number of questions; upon every question in which the public of the State may be interested at the time that convention is called? I say even if this provision is retained the convention may have almost unlimited power to act on these questions. Hence I am in favor of retaining this restriction. It does not prevent the legitimate and proper and ample action of any convention which may hereafter be called to take into consideration the interests of the people of this State. I think it right, judicious and safe to put some restriction on any convention which may hereafter be called to consider such matters; and I cannot think of any provision that meets the need so well as the section just as it reads. For that reason, I shall vote against striking out.
MR. VAN WINKLE. I would ask the indulgence of the Convention, not to re-argue this question but simply to put myself right. I speak hurriedly and do not always perhaps say what I intend to. How that may be I do not know. I do not suppose any gentleman here would state what I did say except as he understood it. But I wanted to be understood as saying that setting aside the restraints of the Constitution of the United States - which was the great sin of the Richmond convention - the great sin of secession - that the power vested in them by the legislature was entirely sufficient authority to pass the ordinance of secession. That I stated, sir, and I now add that it was also sufficient authority for them to make war. I wanted to show there that the legislature had committed the first error - and a great one - by giving to that convention the power - or pretending to give it - for really they could not - to do whatever they might deem expedient with the full understanding that the question of secession was to come up; and upon the existing relations between the United States and some of those now revolted states, any fair interpretation of the power vested in that body by the legislature would authorize them to pass the ordinance of secession, setting aside, of course, the Constitution of the United States, and would authorize them safety of the state, as they conceived it, to open the ball of war.
I have to regret that that act of the legislature calling that convention met with but four negatives in the house of delegates, and one of them, I think was from my county.
There is another point which I can correct from reference to the remarks of the gentleman from Ohio (Mr. Lamb). I never contended the people were to place their reserved powers in the hands of the convention. I never said that. I never thought of it. I mean to say I did not mean to say it. I am a Dutchman and have a right to speak twice. The whole scope of my argument will show that I did not mean it. I meant to say the convention is the instrument by which the people of the state exercise their reserved power. This is outside of ordinary legislation the only instrument by which they can exercise it. While, therefore, I wish no restriction except those the people may directly impose be placed in this instrument in advance, when a convention assembles and is the instrument of the people in reference to those and after some years another convention assembles with the same powers and authority derived from precisely the same source to determine what is the matter, is to be trammeled by the action of the former; and that I say contradicts a well-known principle in reference to legislative or deliberative bodies, that one cannot of itself, of its own authority, bind its successors.
MR. LAMB. I do not intend to reargue the question. I only want to make an explanation. I am willing myself to accept the gentleman's principle as he has now qualified it, that the convention possesses the reserved powers of the people, subject to such restrictions as the people themselves may impose on that convention. That I suppose is pretty near the correct principle. Now, how are the people to restrict the convention? How is it possible for the people to act on such subjects except just in the way that is pointed out by this provision? Is there any other possible way in which the people can act on a matter of that kind? Except by having a proposition submitted to them by the legislature - their own agents; their own servants; for the legislature is so, and we presume it represents, in some degree, at least, the wishes of the people - by having a proposition submitted to them by that body which they can confirm or reject? Is there any other possible mode in which the action of the people can be had in reference to questions of that kind? The gentleman from Brooke is willing also, I suppose, to admit the doctrine that the people may restrict these conventions; that they do not necessarily as soon as they are assembled possess themselves of all the reserved rights of the people and become, as was correctly said an assembly of despots, invested with unlimited despotism, according to the doctrine here contended for.
MR. VAN WINKLE. I would call the gentleman's attention to the fact that the people must ratify what the convention has done. That is what I have insisted on myself, and that is where the people save themselves.
MR. LAMB. Certainly, the people must ratify what the convention has done, and this is to be the great protection for the people! How was it in reference to the ratification in the case of the Richmond convention? Did not we reserve the right to ratify the acts of that convention? Did not we tell that convention their acts should have no effect until they were ratified by the people? We need some further protection than that. Other conventions may act as they acted and render the ratification a mere fraud upon us. I would ask the gentleman from Brooke who says he is not willing to consent to any restriction on these bodies except what the people propose, what other plan he can devise for the people when they wish to restrict the powers of these conventions than to have a proposition to that effect submitted to vote at an election to approve or reject? Can you assemble the people all together in this hall, or any hall, to discuss these matters, to hear this thing and that thing suggested?
MR. HERVEY. I merely wish to prevent the legislature from originating these propositions alone.
MR. LAMB. Who alone ever can originate them? How alone is the matter ever to be submitted to the people for action? Will your governor originate them and submit them? Or will you wait until you can assemble the people all together to discuss the matter and hear amendments proposed and questions of order raised in an assemblage of millions of men? There is no other mode in which the people can act. The propositions must be prepared by their servants and agents. We must not assume that the legislature, if the people want a convention assembled with such and such powers will necessarily set themselves against the will of the people in that respect. They are the servants of the people, elected by the people, elected annually. They will act, and they will submit such matters to the people unquestionably as the people desire to have submitted to them; and it is the only way in which the sense of the people can ever be had in regard to such questions.
The Chair stated the question was on the amendment offered by the gentleman from Doddridge, to strike out the words: "declare distinctly the powers and objects of such convention."
MR. SOPER. I would suggest to the gentleman to modify his motion so as to strike out only the words "powers and" so the clause would read "declare distinctly the objects of the convention."
MR. STUART of Doddridge. I would rather test the sense of the Convention.
MR. SOPER. I then move to amend the gentleman's motion as indicated. The necessity of it is this: We have been entertained here this morning, very much indeed myself, by the discussion; but I apprehend that nothing which has taken place heretofore can be embraced within the object of this section. The object here is to amend the Constitution. Beyond that no power can be conferred upon any convention which will be called in pursuance of this section. But to enable the people to vote intelligently on the subject it is necessary that the legislature should designate generally the necessity or the object for which they are to call this convention. It appears to me they cannot vote understandingly until these objects are plainly put before them; and when the legislature put the objects plainly before them showing the necessity of a revision of the Constitution, its alteration, the people then will elect delegates with that view. But, sir, I am opposed to any restrictions in that law to those particular objects. Those objects of necessity will be included within the powers delegated to the convention; but if in the wisdom of the convention, or of the people, it should become necessary to add or to make some other alterations not authorized by the legislature at the time of calling the convention, I want that convention clothed with the power to remedy those defects. And I apprehend that what we have heard here in relation to the dangers of this Convention assuming unlimited powers, I do not myself apprehend anything of that kind. I think it myself beyond a probability. A convention coming directly from the people whose attention has been called to the object by a previous act of the legislature, and it having reference to altering the organic law of the State, it does appear to me that gentlemen elected to a convention under such circumstances will come here expressly for the purpose of carrying out the views of their constituents; and no radical act or nothing directly in opposition to their wishes will be enacted by this Convention.
If the convention is to be restricted to the alterations prescribed by the legislature, it will be said that they will be restricted in the very language of the act and they will not be permitted to alter even its phraseology or its meaning in any respect. It appears to me you are incurring here an extraordinary expense upon the people for no very particular object. No necessity. We had better adopt at once the proposition to let the people vote directly upon the proposition of the legislature, whether they will have it or not. There is no necessity of calling a convention to come up here if the legislature propose to alter the constitution and designates in what way and to what extent and for what purpose it shall be altered. There is no necessity of having the people go to the expense of assembling a convention to merely reiterate their own desire on that subject. Because the very instant they say there is not a necessity for a convention they adopt the proposition proposed by the legislature - the people do. But if that convention are to come, carrying out mainly the great object avowed in the law with the power of making such alterations and additions as in their judgment may be necessary and beneficial to the people, why they ought to have that authority. Then what would be the necessity for calling a convention? I am satisfied that no convention will be called for the purpose of amending this Constitution unless it be for very important Changes; and if, as suggested by the gentleman from Ohio, he has in contemplation preparing an amendment or authority be given to the legislature to propose one or more amendments to the people for ratification under such restrictions as will enable the people to get a free and unbiased expression of the wishes of the people as to the necessity of that amendment - if he proposes such a clause in the Constitution it will answer, I apprehend, all the necessities that may grow out of such errors or omissions as we here shall give ground for in the Constitution we are about to adopt here, and will attain the object in that way. For instance, it has been stated here that there are some twenty-odd states of the Union which have got provisions of that kind in their constitutions; and I would now like to see something like this: let a distinct amendment be proposed by the legislature. Now, if it is not to be sent down and considered by the people at the next election, they not only will delegate their delegates with a view to that amendment, and if at the second or next succeeding session of the legislature they should adopt the same amendment, let it then be submitted to the people and become a law.
MR. LAMB. That is precisely the amendment I propose to offer as an additional section.
MR. SOPER. I should like to see a section of that kind, and then I would vote for the section now under consideration declaring distinctly the objects to the people. But when they call a convention under this section I want them clothed with all the power necessary in order to remedy defects that may be discovered in the Constitution. I apprehend there is no danger here of a convention undertaking to take away the rights of the people. If they should do it, the inherent power which rests in the people on all occasions, which has been exercised here in the reorganization of the government of this State, the people would rise up in their majesty and hurl those members of the convention out of their midst and repudiate entirely their acts and set up a republican form of government such as they would desire to have. I shall be compelled to vote for the amendment, if my amendment is lost, of the gentlemen from Doddridge, but I prefer my motion. I want it to read "declare the objects" omitting the word "distinctly" also.
MR. PAXTON. Gentlemen appear to discuss this question here as if the adoption of this proposition would operate at once as an absolute restriction on any convention. It is nothing more than simply retaining in the hands of the people the power to impose such restrictions as they please. If they choose to delegate all the power to a convention at that time, they can do so. But it is nothing more than retaining the power to impose such restrictions at the time when a convention may be called. Merely retaining in the hands of the people the power to surrender their entire sovereignty to them or to reserve whatever they may in their judgment think best. That is the whole question.
MR. SOPER. The difficulty between the gentleman and myself is this: If I understand him, he thinks the people have got to reserve to themselves the power of conferring upon the convention all power; that they are not restricted by law. Now, I do not understand it so. That is the object I want to attain. I want them to come clothed with all the powers expressed in the law; but if it be necessary to alter in their judgment in some respect I want them to have that power. If it be necessary to add an additional amendment to the Constitution, I want them to have that power. But I think, after all, it will be but an amendment to the Constitution and then it is very well guarded hereafter; must come back for the ratification of the people; and here are very strong words to show that there shall be no shift or device to frustrate the objects and desires of the people in relation to it. They will have the controlling vote upon it after it comes back; and this Convention will have no power to take it away from the people - their subsequent ratification of it, nor give it any effect until after the people have ratified it. Now, if this law declares distinctly the power of the convention and if the convention shall be ordered for the purpose with the power set forth in such law, I apprehend they cannot go out of them; they are tied up. The amendment that I propose requires the law to set forth the objects or in other words the necessities of the convention, so that the people may act intelligently on the subject. If the people thereafter should call the convention, that that convention shall carry out substantially the objects for which the people have elected them, submitting their acts afterwards for ratification before they can have any effect.
MR. LAMB. Mr. President, I imagine the construction of the section given by my colleague from Ohio (Mr. Paxton) is strictly correct; the effect of the section and nothing else. If the people want a convention assembled for the purpose of amending the Constitution and the law is passed calling a convention for that object, which the people ratify, I take it that is declaring distinctly the power and objects of that convention. Or the convention perhaps might be called - though I know of no example of that kind - for the purpose of amending the Constitution in a single particular, say relating to the legislative department. That would be distinctly defining the powers and objects of the convention; and that may be ratified. Then still, if the people wish it, they have the power of calling a convention with unlimited powers. But it leaves in the hands of the people the power of restricting these conventions as to them may seem proper according to the emergency of the time. Such, I take it, is exactly the effect; and it cannot be misconstrued under operation of the provision as it now stands. It seems to have been discussed, however, throughout by the parties who are opposed to it as if it would require the power of the convention to be limited to making some special trifling amendments. It imposes no such limitation whatever. If the people see proper to ratify it, the convention can be called under this section possessing all the powers reserved to the people under the Constitution of the United States; but it can be called for such other and distinct objects as the people may desire. For I take it for granted that whenever the people do desire a convention to be called, whether for an object where they are possessed of all power or for a distinct object needing only limited authority, if one legislature will not do it they will turn that legislature out and put in another that will. For it is their will, from the beginning to the end, that is to govern in this matter, and not at all the action of their own servants, men under their control, which is to initiate it, simply because it cannot be brought forward in any other manner. After the proposition is made by the legislature, they will have the right to vote direct on the question whether a convention shall be called or not. It is simply reserving the power, if the people see proper to do it, to call a convention, for particular purposes. At the same time they have the same power under it and must have of calling a convention if they see proper, with unlimited powers. the president. the Chair would take this occasion to call the attention of the Convention to the fact that in the consideration of the amendment to the amendment the discussion should be limited, while gentlemen are traversing the whole question. Gentlemen will confine themselves to that amendment.
MR. LAMB. I must apologize to the Chair and to the Convention. I know I have overgone my privileges on this occasion, but I don't do it very often. The general subject was introduced as soon as the amendment was offered. It was not introduced by me. I made no remarks on the general matter except in reply to previous remarks of that character.
MR. STUART of Doddridge. The hour of recess has arrived, sir.
MR. VAN WINKLE. I cannot conceive the propriety of making an amendment without discussing the whole subject. It may be that amendments might be proposed that are not of that character; but when I go to show why a thing should be stricken out, I must go into the whole subject.
THE PRESIDENT. The hour for recess having arrived, the Convention will take a recess.
On reassembling, the President in the chair:
MR. STUART of Doddridge. Mr. President, I rise to know if we cannot have a division of the question in some way. I want to vote for the amendment of the gentleman from Tyler; but in voting for his amendment, if it is adopted I am precluded from voting to strike out the residue, and the friends of striking out are left in rather a peculiar situation.
THE PRESIDENT. The Chair is of the opinion that it would be competent to vote for the amendment of the gentleman from Tyler and afterwards to vote to strike out the whole.
MR. STUART. I think not.
THE PRESIDENT. That would be the opinion of the Chair.
MR. VAN WINKLE. The amendment of the gentleman from Tyler is a substitute for the amendment of the gentleman from Doddridge; and if it is adopted, the amendment offered by the gentleman from Doddridge falls. He offers to amend it by making a different proposition.
MR. STUART of Doddridge. I do not understand the gentleman from Wood.
MR. VAN WINKLE. I say the proposition of the gentleman from Tyler is a substitute for yours.
MR. STUART of Doddridge. If we vote for the substitute, we will not have the privilege of voting for the amendment; and I want to know if we cannot divide the question in some way so that we can have a vote upon striking out the whole.
MR. VAN WINKLE. The way to do would be to withhold the amendment of the gentleman from Tyier until this is tried.
MR. SOPER. I will do so. Mr. President, I withdraw it for the present.
MR. PAXTON asked for the yeas and nays. They were taken and resulted as follows:
YEAS - Messrs. Hall of Mason (President), Brumfield, Chapman, Caldwell, Dering, Dolly, Hansley, Hervey, Irvine, Montague, Mahon, Powell, Pomeroy, Robinson, Ruffner, Stephenson of Clay, Stewart of Wirt, Sheets, Stuart of Doddridge, Taylor, Trainer, Van Winkle, Warder and Wilson - 23.
NAYS - Messrs. Brown of Preston, Haymond, Harrison, Hubbs, Lamb, Paxton, Sinsel, Simmons, Stevenson of Wood, and Soper - 10.
So the amendment to strike out was adopted; and the question recurring on the section as amended, it was agreed to.
MR. LAMB. Mr. President, I rise to offer an additional provision in regard to amendments. Let us take what care we may in regard to this subject, undoubtedly the Constitution which we shall propose will be liable to many defects. It is almost necessarily the case, I may say, for no man and no set of men can pretend to foresee the emergencies which may arise in the life time of a nation and to adopt beforehand an adequate provision for these emergencies. And this is the task which is undertaken in the formation of a constitution, intended at least when it is formed by the convention and ratified by the people to be a permanent instrument. I am so sensible that however carefully we may frame our work it will have many defects that I wish to see a reasonable facility granted for the purpose of amending any errors which in our blindness we may commit. It belongs to Omniscience alone to see all the emergencies, all the trials in the future to which a constitution is to be subjected. Ours will certainly be subject to a severe test. It will take its existence in a time of trouble and of danger, not as the constitutions which have ordinarily been framed and adopted by this people to operate upon a people peaceable and prosperous; but everything will tend to subject our work to the severest test. Let us at least then, while we admit that with our want of experience, want of ability, perhaps, for the task we may commit many oversights and errors on our work - let us at least have it to say that if we present a work of that character to the people, they may at least have a reasonable facility in making amendments. The gentleman from Kanawha, (Mr. Brown), who announced this morning that we need not expect his influence in favor of the new Constitution, I want him to go to his constituents and to be able to say that if there is error in the Constitution it can be readily and without difficulty amended. I want these facilities for amendments to exist without calling upon these tremendous engines, the national conventions, which according to the decision of this body are to possess when called upon the whole reserved rights of the people. I want no convention assembled where this doctrine is maintained in this land.
I have examined with reference to this subject with some care the provisions of the different constitutions. I find, as I stated this morning, that the constitutions of no less than twenty-seven states provide, in one shape or another, for amendments without calling upon conventions to exercise the power. The constitutions of sixteen states have some provision or other on the subject of conventions. The plan which seems to be most generally preferred throughout the different states in reference to amendments is that which has been already spoken of by the gentleman from Tyler and the gentleman from Wood. They allow the legislature, in the first place, to propose amendments, provided the majority of all the members elected to each house concur in making the proposition. Then a general election is to intervene, a new legislature is to be chosen; the proposed amendment stands referred to that legislature; it is to be published from three to six months before the election at which that legislature is to be re-elected. The people elect the new houses with special reference to these amendments - at least know that such subjects will go before the succeeding legislature. When after a new election is had, the attention of the people being directed thus plainly to the amendments which are proposed, a majority of all the members of each branch is required again for the purpose of acting on the amendment previously proposed. If in the second legislature the amendment receives the concurrence of a majority of all the members of each branch, then provision must be made for submitting them to the popular vote, and they receive their sanction and vitality at last only from the vote of the people. The object of this is apparent. It is, as embodied in the Declaration of Independence, that our systems of government shall not be changed for "light and transient causes." It is to secure to us the great safety that if our fundamental systems are to be changed, at least they will be changed by the deliberate will of the people. This is in conformity with republican principle, because a majority of the people will have the power to change them - not two-thirds. If we say that an amendment cannot be proposed unless by two-thirds of the legislature, that proposition has a converse to it. It is in substance saying that when the legislature representing one- third of the people and supposed to express the will of one-third of the people may prevent amendments. I will submit for the consideration of the Convention the following as an additional section:
Any amendment to the Constitution of the State may be proposed in either branch of the legislature; and if the same, being read on three several days in each branch, be agreed to, on its third reading, by a majority of the members elected thereto, the proposed amendment, with the yeas and nays thereon, shall be entered on the journals, and referred to the legislature at the first session to be held after the next general election; and shall be published, at least three months before such election, in some newspaper in every county in which a newspaper is printed. And if the proposed amendment be agreed to, during such session, by a majority of the members elected to each branch, it shall be the duty of the legislature to provide by law for submitting the same to the voters of the State for ratification or rejection. And if a majority of the qualified voters, voting upon the question at the polls held pursuant to such law, ratify the proposed amendment, it shall be in force from the time of such ratification, as part of the Constitution of the State.
If two or more amendments be submitted at the same time to the voters of the State, they shall be submitted in such manner that the vote on. the ratification or rejection thereof shall be taken on each of the proposed amendments separately.
I will say that there is nothing in this that is new. It is a provision substantially as contained in the constitutions of several states. I ought perhaps to remark that there are other plans proposed in the constitutions of different states for the purpose of amending the constitution with reference to a convention. Some of the states have adopted this plan. They allow two-thirds of each house to propose amendments. That amendment lies over - published, of course, so as to give general information to the people - until after another legislature is elected, that legislature being supposed to be elected with reference to the amendment proposed. If two-thirds of that legislature adopt the proposed amendment, it then becomes part of the constitution without any direct vote of the people. That is one plan.
Another plan is that two-thirds of each House are allowed to propose amendments, those amendments being published for the information of the people, and a vote is taken, upon them at the next general election. If then ratified by the popular vote, they become part of the constitution. I have my doubts, however, whether any principle that requires two-thirds of the house to act in reference to a matter of this kind is proper, for it is virtually saying that one-third of the State may prevent any amendment to the Constitution.
There is much the largest number of the states, however, requiring the amendments proposed to pass two successive legislatures before they are submitted.
THE PRESIDENT. What disposition did the gentleman from Ohio propose to make of the section he offered?
MR. LAMB. I have no objection at all to laying it on the table if the Convention wish to have the amendment before them some time before acting on it. Just as the Convention please in reference to that matter.
MR. STUART of Doddridge. I was going to suggest it had better be laid on the table.
MR. VAN WINKLE. And be printed.
MR. LAMB. Very well, sir; I will make that motion then.
MR. HARRISON. Mr. President, I ask leave to call the attention of the Convention to a proposition (No. 33) offered by my colleague some time ago. I suppose it is proper now for the Convention to take action upon it. I will read the proposition for the information of the Convention:
WHEREAS, When the legislatures of some of the states have made laws restraining or forbidding the sale of intoxicating liquors, •the courts have decided that such legislation was unconstitutional.
THEREFORE, RESOLVED, That the Committee on the Legislative Department be requested to take into consideration the propriety of inserting the following, or some similar provision in the Constitution:
The legislature may make laws regulating or prohibiting the sale of intoxicating liquors within the limits of this Commonwealth, or in any of the counties thereof, or in any corporation within the State, when such legislation is demanded by the citizens thereof; and the legislature may submit such laws to the people of the State, county or corporation, as the case may be, for their ratification or rejection, at the ballot box.
I am in favor of the substance of this proposition being incorporated in the Constitution for the reason assigned in the preamble. The form of it perhaps is not such as I would desire. I suppose it is in order.
THE PRESIDENT. I would suggest that the report is under consideration now, and perhaps it would be most proper to move to pass by the report on the legislative department.
MR. HARRISON. I thought we were about through with that.
MR. LAMB. The proposition mentioned by the gentleman from Harrison was under consideration in the Committee on the Legislative Department. The members will recall that it was decided inexpedient to report any provision of the kind. I believe that was the fact. If the gentleman wants a report to act upon, we will consider that as part of the report of the Legislative Committee.
MR. HARRISON. I suppose, of course, the committee had the matter under investigation but thought it inexpedient; but some members of the committee may differ with the committee, as they have an undoubted right to do, as to the expediency of that matter; and with a view of testing it I will offer this as an additional clause to the legislative powers:
"The legislature may make laws regulating or prohibiting the sale of intoxicating liquors within the limits of this Commonwealth, or in any of the counties thereof, or in any corporation within the State."
If it is the pleasure of the Convention to take it up now, perhaps it may as well be done now as any other time.
THE PRESIDENT. The question will be on the adoption of the proposition of the gentleman from Harrison.
MR. HARRISON. It seems to me, for the reason assigned in the preamble to this proposition, that it would be eminently proper for us to provide in our Constitution for a settlement of the constitutional right. It seems that in some of the states heretofore, as the members are aware the legislature has undertaken to regulate the sale and manufacture, and use perhaps, of intoxicating liquors; and the question of the constitutional right of the legislature to pass any such law has been raised and it seems decided against the constitutionality of such acts. It is not necessary that I should say anything this afternoon about the evils of intemperance, I suppose. They are countless - innumerable - and it seems to me in a body forming a constitution, or in a legislature making laws, that with so great an evil as this staring everyone in the face, there can be no objection on the part of any one to authorizing the legislature at least to pass such laws if they think proper.
We have in this report a provision that the legislature may authorize the courts to grant divorces. I do not understand exactly the object of such a clause unless it be to remove some such objection as might be raised to a law of this kind. It seems to me it will do no harm even if it were a useless waste of words to insert a clause like this in this Constitution. If it should be the wish of the body of the people and the will of the legislature to make such laws hereafter, the question which has destroyed the effect of them in some states where they have been passed will be removed by our action here now; and I hope it may be the pleasure of the Convention to insert such a provision in this Constitution.
MR. LAMB. Mr. President, I think the motion of the gentleman from Harrison is entirely unnecessary even to accomplish his own object. We have adopted the first section of this report which provides that the legislative power of this State shall be divided in a senate and house of delegates. If it is necessary to adopt any regulation by law in regard to the sale and use of ardent spirits, the legislature have full power to do so unless there is something in the Constitution to prohibit their action on that subject. I do not see, therefore, that even if the legislation which the gentleman speaks of is desirable that there is any necessity for the motion he has made.
MR. HARRISON. It has been suggested that as the question was offered some time ago and the question was not then called to the attention of the house before, perhaps it would be best to offer this as a resolution to be adopted in this report and let it lie on the table until some future day until we dispose of some other parts of this report, when it can be called up again. I have no objection to its taking such a course as that.
MR. STUART of Doddridge. Offer it as a section of the report.
MR. HARRISON. If there is no objection, I ask that it be laid on the table and I will call it up again.
MR. POMEROY. I hope we will go back to the second section of the report on the legislative department, where we are likely to have a considerable discussion. I suppose we are prepared now to enter on that matter. I move to go back and take up the second section; and to bring the matter before the house, I move the section be adopted.
MR. CALDWELL. I hope my friend from Hancock will withdraw his motion a moment. I hold in my hands propositions for additional sections to this report and ask that they be laid on the table and printed.
MR. POMEROY. Certainly I will do that.
MR. RUFFNER (in the chair). Does the gentleman wish them read at this time?
MR. CALDWELL. I am not particular about it.
MR. STUART of Doddridge. I would like to have them read.
The Secretary read as follows:
The legislature shall pass no special act conferring corporate powers, other than for banking or for municipal purposes, or when the object cannot be attained under general laws; provided that the power of municipal corporations to tax and incur debts may be restricted by law.
Corporations, other than corporations for banking or for municipal purposes, shall be formed under general laws, but all general laws passed pursuant to this section may be altered or amended by the legislature from time to time.
The property of corporations created under general laws shall be subject to taxation the same as the property of individuals.
The right of way may be granted by general laws to corporations, provided the same shall not be appropriated to the use of any incorporation until full compensation therefor be made in money - the amount of compensation to be ascertained in a court of record, in such a manner as shall be prescribed by law.
MR. POMEROY. I renew my motion to take up the second section.
The motion was agreed to and the section taken up and read by the Secretary as follows:
"2. The senate shall be composed of eighteen and the house of delegates of forty-six members. The term of office for senators shall be three years and that of delegates one year, commencing, in each case, on the first day of October next succeeding their election. The regular elections for members of the legislature shall be held on the fourth Thursday of May. But vacancies in either branch shall be filled by election, for the unexpired term in such manner as shall be prescribed by law."
MR. POMEROY. My understanding at this time is that all the clauses of this section were acted on except the first. We acted on the first, also the third. A motion was made to change the time of election, to change the term of senators from three years to two. The matter that would come before us would simply be the first clause: "The senate shall be composed of eighteen and the house of delegates of forty-six members."
MR. LAMB. I do not know whether this statement is exactly correct or not. We acted on the other three clauses and adopted certain amendments to them. I do not think the clauses were adopted.
MR. POMEROY. That is correct - simply amended them.
MR. RUFFNER (in the chair). The whole section then is now open to amendment. If there be no amendments proposed, the question will be on adopting the section.
MR. VAN WINKLE. I move to strike out "forty-six" in the second line and insert "fifty-four." My reasons are: In the first place, I do not think the house as large as it should be even if the valley counties come in at the same rate. That would make it fifty-five. But the stronger reason is this: The small number of delegates owing to the peculiar numbers of the population of the different counties the way they have arranged themselves is, I think, too small to make an equitable distribution of them. That is to say, it leaves the fractions too large. It makes the divisor too great, and consequently fractions are left and difficulties are experienced in assigning them to proper districts. The divisor is 6,618. Well, it will be observed very few counties have 6,000 of a population or multiples of it; some three or four of 12,000; but for the most part neither number would suit. In fact, a still larger number would suit better yet; but in view of the other counties coming in, the house would be full as large. With the number I propose, it would be sixty-six; which would be as large as need be probably. But I think we get some nearer to the subject by increasing from forty-six to fifty-four. There are nine senatorial districts, which are arranged so as to present very nearly equal population. The difference between the greatest and the least is 2500; the difference between the others is of course less. It strikes me the number, at any rate, ought to be a multiple of nine - ought to have forty-five instead of forty-six. I propose to make fifty-four, six times nine, assigning the six delegates to each senatorial district. I intend to move at the proper time that that shall be the mode in which the delegates shall be distributed. Or, if these senatorial districts are retained, to be assigned an equal number to each senatorial district. Gentlemen will observe that the difference between the highest and the lowest senatorial districts as arranged are not equal to one-half the multiplier proposed; and the principle as adopted by this committee, and usually adopted would give a delegate to less than one-half of the divisor; so that there would be nothing growing out of that difference in the districts which would require an additional delegate. If you give six or any other number to each senatorial district and apportion that six between the different counties composing the district you get nearer a fair distribution than by apportioning them throughout the State at large. Because each senatorial district comprising one-ninth of the State will have the same number of delegates; and in apportioning off the fractions, as they will in every district, if a large fraction, less than one-half, of one county of the district does not get directly represented, its interests being to some extent with the other counties of the same district as they are arranged here, it will have a representation from an adjoining county and in matters affecting that section will be just as fully represented as if it had the delegate itself.
I hope the Convention understand the principle that I am endeavoring to get at. I shall propose to give to each, to apportion the delegates among the senatorial districts, giving to each the same number of delegates with a view to the greater equalization of fractions; each senatorial district dividing its own six (or five) members as the Convention may vote, will come nearer to an equality of representation with the other districts than if we divide them throughout the State; for the reason that an unrepresented fraction of one county will be probably represented from the adjoining county, and this certainly is fairer than to take the excess delegates away from the district where the fraction is and give it to some distant district with which it has no immediate connection. Senatorial districts are arranged, as I understand, on the basis of throwing together in a district counties whose commercial interests at least - perhaps other interests - are identical or nearly so; counties that revolve around the same commercial center; whose business looks in the same direction; whose manufacturing interests are the same. And this gives to the senatorial districts a feature which I am very anxious to impress upon you. I stated in some remarks when this subject was up before that we failed to come up to the true principle, to receive the benefit which is derived in other places from the distinctive legislative powers in the two houses, as for instance, in the British Parliament the House of Lords represents an entirely different interest from the Commons, and in the Senate and House of Representatives of the United States different interests are as also represented. One represents the states as such; the other the people. It is not necessary to suppose that even in the British Parliament the interest represented more particularly in the House of Lords is diverse or opposite as regards the safety of each. But every question that comes up, in order to be passed by those houses is looked at by the two houses from different points of view and all the aspects which the question bears are then likely to be regarded. I can see no other way by which we can render the two houses beneficial to the same extent, or nearly the same, except by something like the mode the committee has pursued. It is true, by having a larger constituency for the senator than for the delegate, this is to some extent arranged; because the senator must consider the interest of every county of his district, whereas the delegate will look after the particular interest of his county. You set up, then, not between the senator and the delegate an antagonism of interest, but you do set up so much diversity of interest as to induce a more careful examination by the two houses of all questions presented than would be given them by one house.
I therefore hope that with a view, as well as for the other reasons I have stated, to render this distribution of delegates among the senatorial districts better and more perfect, the Convention will consent to increase the number of the delegates to the number I have indicated, fifty-four. It is but a small addition - only eight additional ones; but I think it will be found to subserve a very useful purpose; will enable us to give better satisfaction to those to be represented. Because the representation will bear more equally than we can make it with a smaller number.
MR. LAMB. I do not understand that the precise question which is made here involves the question of apportionment of numbers to the senatorial districts. If it does - if we are to have the two questions under consideration at the same time, it must necessarily lead to great confusion. I mention this matter because I want the Convention to understand that I think there are some objections of a grave character to the plans of apportionment suggested by the gentleman from Wood in regard to the apportionment of delegates, though I did not conceive that that question is directly involved in the question before the house, and do not at present want to discuss it, while, at the same time, I am in favor of the motion itself which he has made to increase the number of delegates from forty-six to fifty-four; and I will state very briefly the reasons why I am in favor of that particular motion. In the first place, I object to the number forty-six, and for this reason: It is an odd number. It could not be possibly selected for any other purpose than to subserve some particular object for the moment. Why should forty-six be selected unless it happened to fit some particular and special purpose? Now, I do not want our Constitution to go out with that on the face of it. I must say that no man in any part of the country seeing a number of that kind selected as the number of the house of delegates can possibly give any other explanation to it. It bears that on the face. If we select fifty-four, why there is this reason to give for it It is exactly three times the number of senators; and it is a very ordinary provision in the constitutions of the different states to say that the districts shall consist of one-third the number of representatives. Now, I ask the members of this Convention if they can imagine why this particular number (forty-six) is selected? Unless it was that it happened to fit some particular case?
I have no objection to this particular number. You have forty-four counties this side the Allegheny mountains among which to distribute your representatives. You have only to provide therefore for a house of delegates only exceeding the number of counties by two. Now, every county must be somehow or other represented. I do not care what system of representation therefore you devise, you have not a sufficient excess of delegates in order to distribute the numbers of the house of delegates in anything like a fair proportion to population. You cannot do it, and provide that every district of the State should be represented in some way or other. You must have a larger excess in order to enable you to give to those counties which have a large population their proper share of representation according to the principles you have established. You have established unanimously the principle that representation should be apportioned as nearly as possible in proportion to the number of voters. When you come to apply these to numbers forty-six and fifty-four observe the difference of results. Forty-six gives a ratio of representation to one delegate for every 6618 whites; fifty-four one to every 5637. By applying this ratio to the population of the different counties the fractions on the ratio of 6618 amounts to 138,983; on the other ratio to only 90,000. You have therefore to apportion a large number of your delegates among fractions; a much larger number of your delegates among fractions in the one case than in the other; and, of course - for it results necessarily as an arithmetical proposition - your apportionment approaches much less nearly to the principle you have adopted of apportioning representation according to the number of the white population. With forty-six members of the house of delegates and your ratio of 6618, you have fractions not represented - necessarily so - of 3881, 2908, and the like; with the other you have no fraction in any case unrepresented amounting to 2100. Your apportionment, therefore, will certainly approach much nearer the principle you have adopted in the one case than in the other; and you can see it must be necessarily so because with forty-four counties forty-six is too small a number to allow an apportionment according to population. Trace this matter through some of the details. Adopting your house of forty-six and your ratio of 6618, you give to Greenbrier, one of the new counties which you propose to include, in the new State, with 10,499 white population, you cannot give her but one representative. Pocahontas, right alongside of Greenbrier, with a population of 3686, must have a representative too, or her people would be entirely unrepresented.
The number fifty-four presents another advantage to my mind in regard to Mason county. Mason, it has been stated here, complains loudly that the census does not represent her population truly. I do not think that complaint well founded; but I do not propose to discuss that question. But if you adopt a house of fifty-four you give Mason county two delegates with a population according to the census of 1860, (8752) and she will have no more if she has the full population which is claimed for her in the report of the minority of the committee (12,770). The only effect would be that in one case she would be slightly less than double the ratio, and in the other case slightly over double the ratio. But whether injustice was done her by the census or not, if you adopt fifty-four she would get all she would be entitled to in either case. For these reasons, gentlemen, I think the Convention ought to adopt the number fifty-four, which is a change of only eight. It can make very little difference in the matter of expense, and it will operate much more equally; it will enable you much better to shape your practical measures in conformity with your general principle that the members are to be apportioned in proportion to white population.
THE PRESIDENT. Members will address themselves to the Chair and not to the house.
MR. STUART of Doddridge. Mr. President, I yielded the floor to the member from Ohio from the fact that he is chairman of the committee, for the purpose that he might defend the report, I must say if I had thought the gentleman was going to make an attack on it I would not have yielded in that way. I think it is courteous and right that the chairman of the committee should always have an opportunity of defending a report, but I did not know he was going to make an attack.
MR. LAMB. Mr. President, will the gentleman excuse me one moment. The gentleman will recollect that I gave full notice to the committee that I intended to differ with them on this point.
MR. STUART of Doddridge. We are not to speak outside the committee. The gentleman had a perfect right to make a minority report.
I shall not trouble myself with the cube-square-root gentleman from Wood to get delegates into senatorial districts; because I do not think this matter of much importance, whether you square them in or cube them in so you get the people represented and get a sufficient number of delegates. Now, sir, I am very much opposed to this cumbrous body and making our legislature as large as the gentleman from Wood proposes to do it. I would much prefer reducing it to thirty-six from forty-six. Having forty-six as the number, you divide I believe by 6618, or near that figure. The half of that is 3309. Every county adopted here in the report of the committee which has a fraction greater than one-half of 6618 is entitled to a representative. That gives nearly every county in the proposed new State at least one representative. I am satisfied that their need can be attended to if they have a representative, in the legislature without giving two, three or four in order to get a proper county so that the gentleman can divide it into equal portions - thirds, halves and fourths. If the object of the gentleman was to give all the counties a delegate, if his amendment carried out that, I would give it some favor; but, mind you, sir, it leaves these little counties which are not represented by making forty-six members still unrepresented. You do not remedy the evil a particle. Taking the forty-six and giving to the fraction 3309 the right to have a representative will leave some four or five counties not represented, with no members from those counties. If the amendment of the gentleman from Wood by making it fifty-four would give to these little counties a representative, I would be willing to adopt his amendment. But it does not. It is only giving the larger counties more representatives - but giving them more in order that they may be better represented. It would give to Ohio four instead of three. Now I am satisfied - and I think the people of Ohio would be - with three representatives, who could represent them as well as four.
MR. LAMB. Will the gentleman excuse me for one moment. Fifty-four would give Pleasants a representative by herself. It is only one of the counties now included in delegate districts that would then have over half the ratio or anything near half.
MR. VAN WINKLE. Pleasants is a very hard case to understand.
MR. STUART of Doddridge. Yes, it makes a difference in one county but it leaves Clay, Webster, McDowell, Raleigh and Tucker without a representative, and it is all for the purpose of giving these other counties more representatives, giving a larger body to the legislature. My experience is that we can get along much better to make a smaller number. Because I am satisfied we will get along much better with our legislation, with much less expense and much more satisfaction to the people generally. If our present legislature was one-half what it is at present, they would do the business equally well, be at one-half the expense - one-third the expense because the time would not be consumed - and they would get along better. The only object of the amendment of the gentleman from Wood seems to be solely for the purpose of giving more representatives to these larger counties; because it does not add to any of the other counties except Pleasants. I would much prefer, making a special section in order to give Pleasants, one rather than add seven more. Because those seven other representatives would be tacked on to these other counties when they are all well represented, and I see no use in it at all. I am for having a government that will be as little expense as possible; but if I could see any good that would be accomplished by the gentleman's amendment, I would adopt it. But, sir, I move to amend the amendment by making it thirty-six. That gives a divisor of 8431 and a fraction of 4215. We would have a much more manageable body, we would legislate much faster, much less expense, and equal satisfaction to the people of the State.
MR. POMEROY. This, as I understand it, is an amendment to the amendment offered by the gentleman from Wood, to diminish the number of the delegates to thirty-six. The original report of the committee is forty-six; the amendment of the gentleman from Wood, to increase it to fifty-four. I hardly know how to speak to this amendment.
MR. VAN WINKLE. The vote will be taken on the largest number first.
THE PRESIDENT. I would suggest the better way would be to strike out, then fill with the number, voting always on the largest number first.
MR. VAN WINKLE. I understand the rule in such cases is that any member may propose whatever number he pleases; they will be taken down by the Secretary.
THE PRESIDENT. Yes, sir; but there is no blank yet.
MR. STUART of Doddridge. I must insist that the question must be taken on the amendment to the amendment first, smaller or greater.
MR. VAN WINKLE. Not in reference to numbers or time.
MR. POMEROY. There is just where the difficulty arises. A gentleman insists on the vote being taken on his motion first, being considerable of a tactician. He understands there is a great advantage in an affirmative vote and will press that point. I am opposed to thirty-six and in favor of fifty-four, not from the suggestion that if that number is adopted it will classify them by senatorial districts. I am not prepared to say that I will go for that proposition. I would not from this fact: I want every county in this new State to have a representative; I want the small as well as the large ones. I would rather there would be a considerable fraction in a large county than have a county connected with another in a district; and when that matter comes fairly before the house I would like to give my views on that subject to show that the small counties ought to be represented, a man elected by themselves; ought not to be hitched on to a large county which may elect both members if they see proper and leave the other county entirely unrepresented, or represented only by a man who lives in another county. J feel to stand up for the weak and try to defend them - and these counties are weak. I do not mean weak in any sense except in numerical strength; and that is a thing they cannot control. There is another reason for fifty-four. It is just three times the number of the senate. In examining the constitutions of the different states you will find there is a proportion preserved, either four times the number or five times or three times or double the number of the senate, but not a number that is neither one nor the other, aa this number forty-six can be. Having already fixed that the pay of the legislature shall be what I consider low - a fair compensation enough - it will add very little to the expense to have fifty-four representatives; and I think we will be more than compensated for it in the State by having each of these counties represented on the floor of the house of delegates. Every county in the senatorial districts can be represented by the senate but in the lower house I would have each county represented here if possible. I do not know whether it will be possible when we come to fix that; but one thing at a time; let us fix the number. I am opposed to reducing this body to as small a number as thirty- six and am in favor of increasing it to fifty-four; and whatever may be the manner of voting, I hope fifty-four will prevail.
MR. SINSEL. Mr. President, there were great fears apprehended here at the commencement of this Convention that there was a "hankering after the flesh-pots of Egypt." I have never been desirous of returning to flesh-pots of Egypt; but if you increase the places and officers of this new State until they become as numerous as the locusts of Egypt, we may cry out, "Would to God we were back by the flesh-pots of Egypt." Now, within the bounds proposed for the State we only have thirty-eight delegates in the legislature at Richmond - would only have that. We have already increased it to forty-six, and now it is proposed to make it fifty-four, an increase of sixteen. Well, it is argued here that it would operate nearer equally on the counties. Now, let us see how it will be. Here is Pleasants with a population of 2926. They say that Pleasants then would be entitled to a representative of her own, giving to Wood county two, making three then where there is two now. Well, now, here is Cabell with a population of over seven thousand, she could only have one representative, with more than double the population of Pleasants. Is that equality? Here is Taylor, with 7,300. According to the basis laid down for Pleasants she ought to have two - which we do not want. We have a fraction considerably over the ratio already fixed. We are satisfied with it. Well, then, in reference to Greenbrier and Pocahontas, Greenbrier has about ten thousand and Pocahontas only some four thousand. Well, now, there they are together. Their interests are one and the same. The representative from Pocahontas would feel almost as deep an interest in Greenbrier as he would in his own county and he would see that no improper legislation would be passed which would operate unjust towards her. And so with these other counties. Some of them do not have a representative from each county. One of the counties has only 1761, one only 1396 population, yet each must have a representative.
When you add up all these numerous offices - I see the Committee on the Judiciary has proposed to make nine judges. I think that is about right. I do not object to that. Look at the free-school system - the offices that will be created by that. Then take the report of the Committee on County Organization and you will be astonished at the number of officers the people will have to feed and keep up. They will cry out after a while, would God I was at the flesh-pots of Egypt, because we are to be eat out, root and branch, would be the natural cry. Well, how then? It is insinuated that the number forty-six - that there must have been some particular reason for it. Well, now, I can explain that. The Committee on the Legislative Department know all about that. I was in favor of forty-two, and a majority of the committee at one time were in favor of it, but they found upon dividing it out amongst the counties it gave to Marshall with a population of something over twelve thousand but one representative, to Monongalia with a population of twelve thousand but one representative; to Preston, the same. Well, now, they just added in order that these four counties might have two, because the fraction was much more than half, they consented that they might add four more to have those counties fairly represented. Now I do not see what selfishness there could have been in that. Marshall's line was down here next the Panhandle; Monongalia and Preston lie away over yonder in the other corner. Well, if we had given them but one it would have been great injustice - or some, at least; though I do not know that it would have amounted to much in the end. Now, if we increase these offices to the extent proposed here I would not doubt much if the people would vote down this Constitution and we would be forced back to old Virginia. And then, in addition to that, many of these counties away in the mountains after this rebellion is put down - their population will be less than it is now. Many of them will flee the country and never return. So I think they are well enough represented. Many of them have a representative of their own when they have not the number. So I am opposed to increasing and opposed to diminishing it; in favor of forty-six just as it stands.
MR. STUART of Doddridge. I withdraw my amendment to the amendment.
THE PRESIDENT. The question is on striking out forty-six and inserting fifty-four.
MR. SOPER. Will the chairman of the committee instruct us. What will the whole number of delegates in case these counties conditional be taken in - what the whole amount will be? How large the body will be?
MR. POMEROY. Sixty-six.
MR. LAMB. It would add about six.
MR. VAN WINKLE. It will add twelve to fifty-four, or ten to forty-five. It will be fifty-five or sixty-six.
MR. LAMB. Mr. President, I would merely, in addition to the remarks which I have made, call the attention of the house to the number of members which other states have fixed for the house of delegates, or house of representatives. I will state, in general, that if we adopt the number forty-six, we will have the least house of any state in the Union except little Delaware and Florida. Every other house of representatives or house of delegates in the Union, I believe, consists of over the number proposed here in the report of the committee. Maine has 151; New Hampshire 206; Vermont 230; Massachusetts 240; Rhode Island 72; Connecticut 215; New York 128; New Jersey 60 and so on. One hundred is about the usual number which seems to have been preferred by other states for their lower house. The number proposed in the amendment is but little more than one-half of what may be considered the usual number in this country.
I may also mention that another county besides Pleasants, if the number fifty-four was adopted, would have a separate representative. It is not a measure, as seems to be supposed by the gentleman from Doddridge, peculiarly for the benefit of the large counties. It is certainly a measure in which Ohio county has very little interest, for I care not one fig whether we have three or four representatives. Only whatever plan is adopted, whatever principle is adopted, I shall insist, of course that it be fairly applied to my county as it is to the others. But it is really a matter about which I would not care that (snapping his fingers) whether we had three or four representatives any further than it may become a matter of importance that no injustice be done us in the principle on which representation is apportioned to us. Kanawha county will gain a member. Mason will gain her proper representation, and Wood county, with her population of ten or eleven thousand will be put a little in advance of these counties with three or four thousand. Is not that proper and right? Or is there to be no principle in this measure at all? Is it to be simply a scramble among us for so many delegates? Not a contest for principle? I hope the Convention will put the matter on no such footing, that their object will be fairly, honestly, to give to all what we have proclaimed is the right of all, representation as near as possible in proportion to population; that this is not to be a mere idle declaration on the part of this Convention, but it is to be a principle which if possible we are to carry out practically.
MR. HAYMOND. I understand from the gentleman from Ohio if we take the forty-six delegates it would place us by the side of little Delaware. I will say to this Convention that if it will do that it is the very place where I want to be placed. Sir, the little state of Delaware is the star of this Union. She is out of debt and has money loaned out. There is where I want to be.
MR. VAN WINKLE. Before the gentleman wishes to occupy the floor, I should like to say a few words although it is the second time. And, first, in reply to the gentleman from Marion. It is very unfortunate for the little State of Delaware that she has nothing to go in debt for. It is a state of three counties. If the gentleman wants to bring us down to that I cannot go with him.
MR. LAMB. Four counties.
MR. VAN WINKLE. She has not any place where she could make any internal improvements; no commercial interests that would require her to go into debt to any great extent. If merely being out of debt is what we are to strive for, we had better go back to old times when there was no credit or anything else, and cite these hard-money countries of Europe as the glorious country for us. There is some principle about this matter - one that has been sanctioned by a very long experience; one that can be easily traced and designated. It is most certain from the statistics with which the gentleman from Ohio has favored us that in reference to the number of which the lower house in the several states is composed, and it is certain from other circumstances, and from what we know and have read on the subject, that as a general rule there is some standard and some policy, something to be gained by making the lower house comparatively numerous. If the theory of representative government as declared almost in terms in the Federal and other constitutions, if the theory is that there shall be a direct, or nearly direct representation of the people, then sir, that theory most certainly requires that the house should be made as numerous as can be conveniently managed. The interests of the people would doubtless be better represented from this little state of 150 than by the proposed number. But there are limits to these things. We are limited, and other states might be, by the unwieldly character of the body when assembled. I think the British House of Commons has about 700 members, and they despatch business as rapidly as any legislative house of which I have information. The lower house of Congress has 233. The State of Massachusetts, it seems, has more than that. But be this as it may, there is a limit, of course, or the house would become unwieldly and too expensive. Now, sir, fifty-four, in reference to the population and extent of this new State is, in my opinion, a rather small number. I would rather see it increased than diminished; and I think if it were increased it would tend to represent more directly the wishes of the people than the smaller could. There has been in the State of Virginia an extreme division into counties and minute divisions. Counties have been made very small and very diverse, or become so afterwards, in their population. This renders it necessary that the largest number that can be conveniently used in reference to these other considerations should be adopted in order that there may be a satisfaction among the people with the representatives assigned them. I am satisfied that if this forty-six apportionment goes out it will create great dissatisfaction. Counties will not be fairly represented. I favor the lowest number that would at all answer the purpose. As the gentleman from Doddridge showed us, there is not a county excluded from a separate representative that has over 1700 of population. Well, now, as much as we might wish to accommodate those counties, there are but four or five of them and it is to be hoped they will agree against another apportionment. As much as we might wish to accommodate them, it would be utterly impossible without doing infinite injustice to others, with a single representative. The largest of them - or the average - has not more than one-fourth of the divisor that is selected; and to give - as the gentleman from Taylor seems inclined to do, to give to 1700 the same he would be willing to give to Wood county, would be an injustice that I think we would be as unwilling to submit to as I hope this Convention would be unwilling to inflict, because we would then have a fraction of four thousand and a good deal upwards utterly unrepresented. There is an objection and always will be, and it is an objection that these very small counties will have to put up with, much as we regret it. The necessity for it arises out of the circumstances of the case; and unless we extend the house to some 180 we could not give each of them a representative; or if we allowed them one for a fraction over one-half we could not do it with a house of less than one hundred and do justice to the rest. But it is the part of wise men when they cannot do all that is desirable to do the best they can; and I think the chairman of the committee has very certainly shown that although the amendment proposes to add eight members under which more justice will be done than with the forty-six. And I appeal to members now if for the sake of having made a good distribution, for popular applause and for the satisfaction they would feel in their breasts, that they would do much greater justice by giving us the fifty-four members than forty-six. It is important certainly that there shall be a feeling of satisfaction as far as possible, as far as we can by adhering to principle and strict justice, that there should be a feeling of satisfaction throughout the borders of the State, that when we go into operation as a state there should be as little cause for heart-burning as possible. Our prosperity as a state will very much depend on the harmony with which we enter on it. If we can go in satisfied that every portion has had fair treatment in reference to such other measures as may affect them locally, then we may look for that harmony which may build up our State rapidly. But if we go into it with these heartburnings to any extent, I am sure, sir, a state of things will be engendered which every member of this body will regret to see.
Now, as to the mere cost of eight additional representatives, what is it if they do their work well - if they effect this purpose of giving not only the appearance but the reality of more justice to others? What is the cost compared with that? We are not here to make a tuppenny State - of reducing everything to the single purpose of reducing taxes. Everybody knows the expenses of the State could be paid with very low taxes. That is not what foisted this debt on us. We might have had as large a school fund as any other state if it had not been for the accumulation of the debt for internal improvements. And this new State can go into operation now with all these things the gentleman speaks of and yet be managed very economically. And I wish to say, as my opinion - I have not examined as strictly into the subject as I should to pronounce decidedly upon it - 1 am very strongly of opinion that they will find if the government under the systems we devise here goes into operation they will have a cheaper government than they have ever had before. Our complaint is not so much that we have had to pay taxes; it is that we have had no benefit for them. If we can substitute a system that will give us the advantages that are enjoyed in other states of this Union, which we have been deprived of, then I apprehend the cost cannot in any event be more than will be abundantly compensated. But I think, as I have already said, that they will find when we get into operation, with the representation proposed here we really will have a cheaper government than we had before. Gentlemen must not consider, sir, in fixing this number of representatives that if we had so many in the old legislature so many would do to make a separate legislature. That certainly would not be the case. We will want more senators certainly. I might consider in that connection that we have been complaining that we did not have the representation to which we were justly entitled. It was a great complaint previous to 1850, and is to this day in reference to the senate. So that that argument defeats itself and shows that in increasing the number we are only doing what our people have been contending for. They have been contending for greater representation in the counties in which we are about to give them, in a separate State, precisely what they have been contending for. I think upon the whole the proposed increase is so trifling that gentlemen will give it to us in order that these advantages may be realized.
MR. BROWN of Kanawha. I feel some doubt on this subject. I have a strong antipathy to enlarging the number for the main reason that we augment the expense of the government. Still I fully concur with the gentleman who has taken his seat that every extension in the number of the delegates brings the government more directly home to the people and in that view it is a very great advantage. It popularizes it just in that much precisely. And in that view it commends itself to my favor. But this is not the only benefit to be derived from it. In fact, these things are benefits and evils, and we have to balance them. One difficulty we have in voting on this subject is that we have made no division, or attempted none, upon this new number fifty-four. Therefore, I do not know how it will work. I have had no opportunity. I have attempted it on the number forty-six; but there were difficulties to be overcome there. I confess myself content with this report, and I have no objections to attempting it again on the fifty-four, and if the advantages can be found I shall not hesitate to add the additional number. If, on the other hand, I can find them by diminishing to thirty-six, I shall not hesitate. Have no particular preference for forty-six over any other number; and therefore before having this vote, if it is the only subject for consideration, I propose we should suspend this matter until tomorrow that we may have an opportunity of looking over it tonight.
MR. HAYMOND. The difference in results between the two numbers would be about this. Pleasants and Wood are a delegate district in conformity with the numbers embodied in the report and entitled to two delegates. If fifty-four be adopted they would be separate. Pleasants having more than half the ratio would be entitled to a delegate to herself; Wood would be entitled to two delegates. Barbour would have two; Greenbrier two; Jackson two; Kanawha would have three and Mason two. Monroe would have two and Ohio four, being an increase of one delegate in each case. The rest would be the same as now, except that Raleigh would be separated and entitled to a delegate by herself.
MR. BROWN of Kanawha. I move to postpone the subject.
MR. HERVEY. Upon that motion I wish to submit a remark or two. It would be evidently proper to postpone this question. This apportionment is made on a report embracing forty-four counties - apportioning delegates among forty-four counties, population 304,433. Now, there are seven additional counties within our boundary which are not taken into this count.
MR. VAN WINKLE. They will make about two senatorial districts with the same population as the others and would be entitled to the same number of delegates as the other districts.
MR. HERVEY. I wish to call the attention of the Convention to this additional fact, that the senate shall be composed of a certain additional number and it is now proposed to fill that blank, and if that blank is filled there is no provision -
SEVERAL MEMBERS. There is another provision in another place, already adopted.
MR. HERVEY. I speak now of the house of delegates; and if the house proceeds now to fill this blank absolutely without taking in these seven transmontane counties, it will evidently have to do this work over again for it is leaving out a population of 54,059.
MR. VAN WINKLE. The case is provided for in Section 10, passed by.
MR. HERVEY. That may be true, but in our estimates this argument has not been taken into account.
MR. DERING. I move we adjourn.
The motion was put, and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia