The Convention was opened with prayer by Rev. Samuel Barnes of the M. E. Church.
After reading of the journal,
Mr. Lamb remarked that the secretary of the commonwealth, who was also acting as secretary of the new State commissioners, had informed him that if they could check up and pass the ordinance providing for the submission of the amended Constitution to the people, he could have the poll books all ready by the time the Convention would adjourn, so they could be distributed to the counties by the returning members. If this is not done, continued Mr. Lamb, it will be almost impossible to get the poll books into many sections of the State. With a view therefore of expediting the business before the Convention that we have to attend to, although it is somewhat out of the regular course, and with the expectation, too, that we can pass this ordinance without too much discussion, or take much time, I will ask to report it on behalf of the special committee and that it be taken up and acted upon. If it leads to discussion and difficulty, we will have to lay it on the table and go on with the other subject.
MR. VAN WINKLE. The commissioners feel that it is highly important that these poll books should be got to their proper destinations if it is possible and that if they be got ready so the members can take them with them, it will not only ensure that result but save a monstrous deal of expense. With that view the commissioners have had, I believe, the ruling done and they can go no further until the Convention acts upon this ordinance before the printing part is done. This must be added, and I have no hesitation in saying that if we keep the Convention in session several days to effect that result, it will cost the commonwealth less than if they should go home leaving these poll books behind them. In the former elections we sent poll books to every county where elections were to be held without any regard to expense of sending them. A part of them never reached their destination. I hope therefore the motion of the gentleman from Ohio will prevail. It may take a half an hour to go through this ordinance, and there may be something in it to excite debate and take longer. In either case I think it had better be disposed of and let the other discussion be postponed until we dispose of this and then it can be resumed.
The ordinance reported back by Mr. Lamb from the committee was then taken up by the Convention, read by sections, some few amendments made and adopted in complete form as follows:
An Ordinance to Provide for Submitting to the People of West Virginia the Amended Constitution adopted by this Convention.
Sec. 1. Poll books, with the proper forms of oaths and returns attached, shall be prepared under the direction of the executive committee hereinafter named, for every place of voting in the forty-eight counties proposed to be included in the State of West Virginia; which books shall contain two columns, one to be headed "For the Amended Constitution," and the other "Against the Amended Constitution"; and the names of all qualified voters, who vote in favor of the ratification of the amended Constitution of West Virginia, shall be written in the first column, and those who vote against such ratification in the second column, under the respective headings aforesaid.
Sec. 2. The executive committee shall appoint three persons in each of the said forty-eight counties, (any two of whom may act, and who may fill vacancies in their own body) as superintendents of the polls hereby directed to be taken in the county; and shall furnish them with the proper poll books for every place of voting in said county at which a separate poll is to be taken. The superintendents for each county shall appoint three commissioners (any two of whom may act) and a conductor for every place of voting in such county, to superintend and conduct the polls to be held at such place, and shall distribute to them the proper poll books.
Sec. 3. In default of such appointment for any county or place of voting, the officers who superintendent and conducted the polls in April last on the question of the ratification of the Constitution of West Virginia, at any place of voting in said forty-eight counties, shall attend at such place and superintend and conduct the polls hereby directed to be taken.
Sec. 4. If there be at any place of voting, at the time the polls should be opened, but one commissioner willing to act, he may associate with himself as a commissioner any freeholder of the county then present; and if there be no commissioner present willing to act, then any two freeholders of the county present and agreeing to act, shall be commissioners.
Sec. 5. The commissioners superintending the polls at any place of voting, are hereby authorized to administer the proper oaths to each other, and to the conductor and clerks. If there be no conductor present willing to act, they may appoint one, and they may also appoint clerks to record the votes. They shall admit all persons to vote entitled to do so, and shall reject the votes of all not entitled, and in all respects have the polls taken fairly according to law. They may swear any person to answer questions in relation to any right to vote which is claimed; and the name of every person offering to vote, but rejected by them, if required by such person, shall be entered in a separate list on the poll book, showing the vote he desired to give.
Sec. 6. The said polls shall be taken on Thursday, the twenty-sixth day of March next. They shall not be opened sooner than sunrise, and shall be closed at sunset. But if it shall appear to the commissioners superintending the polls at any place of voting, that the persons present entitled to vote thereat cannot all be polled before sunset, or that many of those entitled to vote were prevented from attending by rain, rise of watercourses, or just apprehension of their personal safety, they shall keep the polls open for three days, including the first. And if on the day appointed for taking the polls there be a rebel force rendering it dangerous to hold the same at any place of voting in the said forty-eight counties, the voters may hold the said polls at any place within, or convenient to, their respective counties; and any voter prevented from voting on the said question in the county where he resides, by just apprehension of personal danger, or any other cause, may vote in any other county upon making oath that he is entitled to vote on the question of the ratification of the amended Constitution of West Virginia, and that he has not voted, and will not vote, elsewhere on that question.
Sec. 7. Every superintendent, commissioner, conductor and clerk, shall before entering on the discharge of his duties take the following oath or affirmation: "I do solemnly swear (or affirm) that in the polls about to be taken, I will faithfully, impartially and fairly discharge the duties pertaining to my office, according to law; and that I will support the Constitution of the United States, and the laws made in pursuance thereof, as the supreme law of the land, anything in the Constitution and laws of the State of Virginia, or in the ordinances of the Convention which assembled at Richmond on the thirteenth day of February, one thousand eight hundred and sixty-one, to the contrary notwithstanding."
Sec. 8. Immediately after the polls at any place of voting shall be closed, the commissioners superintending such polls, and officers conducting the same, shall make and subscribe a certificate to the following effect: "We A B and C D, commissioners, and E F, conductor, for taking the polls at..................................., in the county of ....................................., do hereby certify that we have fairly and impartically taken the said polls this................................day of........................., according to law, and that the result thereof, as more fully shown by the poll books hereto attached, is.......................votes for the amended Constitution of West Virginia, and.............. votes against the same." In the said certificate the number of votes shall be written out in words at length; and the commissioners and conductor shall within six days after the polls are closed, cause the poll books and certificates to be delivered to the superintendents of the polls of the county, who shall, as soon as possible thereafter, transmit their certificates of the number of votes cast within the county for and against the amended Constitution to the President of this Convention at the city of Wheeling, and deliver the poll books to the clerk of their county court, to be held subject to the order of the executive committee.
Sec. 9. All persons qualified to vote under the amended Constitution shall be entitled to vote on the question of its ratification. And the executive committee shall provide for taking at any time from the twelfth to the twenty-sixth day of March, next, including both of said days, and for certifying and returning the votes of such persons qualified as aforesaid, as may, at the time the polls are to be taken on the said question, be in the armies or service of the United States, whether within or beyond the boundaries of the proposed State of West Virginia; but any votes so taken beyond the said boundaries shall be distinctly so stated in the certificate of the returns thereof.
Sec. 10. The returns made as aforesaid to the President of this Convention, shall be opened by him and the result ascertained in the presence of the executive committee. And if it shall appear that a majority of the votes cast at the polls to be taken as aforesaid within the limits of the State of West Virginia, be in favor of the ratification of the said amended Constitution, then the President of this Convention shall, under his hand, certify to the President of the United States that the people of West Virginia, through this Convention, and by a vote taken at an election held within the limits of said State, at the time for that purpose provided by this Convention, have made and ratified the change in the Constitution of the said State of West Virginia proposed in the act of the Congress of the United States, approved December 31, 1862, entitled "An Act for the admission of West Virginia into the Union and for other purposes," which certificate shall be countersigned by said executive committee.
Sec. 11. It shall be the duty of James W. Paxton, Peter G. Van Winkle, Elbert H. Caldwell, Ephraim B. Hall, and Daniel Lamb, who are hereby appointed a committee, for the purpose, to be called the executive committee* of this Convention, and who may fill vacancies in their own body, and a majority of whom may act, to take such measures and do all such things not inconsistent with this ordinance, as they may deem expedient to cause the said polls to be fully, fairly and impartially taken in every part of the proposed State of West Virginia, and to procure the admission of the said State into the Union if the amended Constitution thereof be ratified by the people. And the said executive committee shall have power in their discretion, to re-convene the members of this Convention on such day as they shall prescribe; and if it be so re-convened, shall adopt proper measures to secure a representation therein from the counties proposed to be included in the said State not at present represented, and to fill any vacancies that may occur.
*For "Minutes of The Executive Committee appointed by The Constitutional Convention" see Appendix.
Respectfully submitted by order of the committee, February 14,1863.
In reference to the provisions for taking the vote of citizens then in the Union army outside the limits of the State, in the consideration of section 9,
MR. LAMB said: This is the section which provides for certifying and returning the votes of the soldiers. It is the same in substance which was contained in the schedule formerly adopted by this Convention. It is the understanding, I believe, that the executive committee must appoint persons to visit the several regiments and take the vote and not send out a mere commission to a military officer which may never reach him, and in half the cases probably would not, and which might not be executed. It is contemplated, therefore, that the executive committee will appoint persons and provide them with the necessary poll books, forms, etc., to visit the regiments and take the vote. If the regiment is in a body, they can perhaps do it in a day; if scattered in detachments, it may take much longer. I propose therefore for the purpose of facilitating the operation that as a section which is already passed prescribes a fixed day, the 26th day of March, next, for taking the vote, and as that provision is to apply to this Union soldiers' vote as well as to the other ones, that we alter it in the ordinance and I propose to add after the word "taking" in the 100th line these words: "at any time from the 12th to the 26th day of March, next, including both of said days, and for." This provision, I may remark, is, in substance at least, already in the schedule which we have adopted, and if there were any possible objection to it on other accounts, this Convention cannot undertake to submit the amended Constitution to any others than those to whom the original Constitution was submitted. The soldiers had the right to vote there; they must necessarily have the right to vote on the amended Constitution. The last clause: "but any votes so taken beyond the said boundaries shall be distinctly so stated in the certificate of the returns thereof," is rendered necessary by the act of Congress. That act of Congress requires the President of the United States before issuing his proclamation to be satisfied that the people of West Virginia, by a vote taken at an election held within the limits of the State of West Virginia, have ratified the change which Congress proposes."
MR. VAN WINKLE. It will not do for us to be putting an interpretation on that clause which would seem on its face to be antagonistic to the words as they stand, and this report is so constructed in reference to taking the vote of the military who may be outside the limits of the State that we shall have all the benefit from it that can possibly be had from it under any circumstances if we had means to do so. I have no doubt in my own mind the gentleman who drew that section intended by saying simply "within the limits of the new State" to say those living within the counties embraced in the State. He has unfortunately, however, chosen a form of words which might seem to mean that no vote shall be taken outside of those limits. Again, it would be a very fair construction of the words as they stand that if the votes of these soldiers might be taken under the authority of the new State, the place would not be of so much consequences. These are interpretations that we might venture to put upon it; but our interpretation is not authority. The only power that is to interpret it is the President of the United States. If he does not think that votes taken beyond the limits of the State are proper under the act of Congress he will of course reject it. On the other hand, I apprehend if he thinks they are proper, if he takes the view I have just been taking and chooses to count those votes, I suppose he has the right to do so. The language is not that the President "shall" issue his proclamation but that he "may" issue it. This shows conclusively that it was intended to leave the whole matter in his discretion. But the Convention will observe that the votes taken outside the State are to be kept separate, and if we should have sufficient votes within the limits of the new State they would add nothing to it. If we should not get a majority of the votes cast within the limits of the State, we then take these votes of our own citizens who are in the service of the United States and happen to be beyond the limits, who being in the public service cannot control their motion, and present that vote with the vote taken within the State to the President and submit the question to his discretion whether with the two together, making a majority we are not entitled to have the proclamation issued. Well, if we do get sufficient votes - as I have no doubt we will - 1 would say to the members of this Convention that each should go to work most heartily in order to bring out every vote within their counties favorable to the new State; and if we do get the handsome majority possible within the limits it will be very gratifying to us for its effect everywhere where this question comes up to be able to say that besides that majority at home, if they could have been legally received we had these thousands of other votes in reserve of the men who are at the front defending their firesides and their government. I think therefore in the action proposed under this ordinance we are not to put an interpretation on the words of the act of Congress that will militate against us, but put on the one most in accordance with our views. We simply provide for taking the votes of the military under state authority wherever we can reach them, beyond the limits of the State from force of circumstances which neither can control. As they cannot get to their counties to vote, we take their vote with due care and formality where they are, and submit the matter to the President of the United States. Now, that is the most we can do under the circumstances. We are not to say the votes are not proper votes any more than we are to say they are. All we have to do is to ascertain what the vote would be and then submit the question as far as necessary to the President. In proposing to take that vote, we cannot be accused of endeavoring to interpret that act of Congress for ourselves against what seems to be the plain reading of its face, because on the face of this ordinance it says that vote shall be kept separate; nor can it be said on the other hand that we have given it an interpretation which would militate against ourselves. In fact by passing this ordinance we give it no interpretation whatever. We simply provide that the vote shall be taken and kept separate, and if there should be a necessity for it they may be submitted to the President for his decision.
MR. WILLEY. I am happy to be able to relieve any apprehension that may exist upon the mind of any member of this Convention in regard to the clause suggested. This bill, in its general frame work was a bill reported to the House of Representatives in consequence of unexpected difficulties from an unexpected quarter in the last session of Congress. Our arrangements and propositions for the admission of the State made in the Senate were interfered with, and to expedite the matter the bill that had been reported in the House was modified. My attention in the Senate had not been directed specially to this clause. We were in the exigencies of the moment more interested in getting that modified - the question in regard to striking out the 7th section and inserting that which Congress requires us to insert. Now, my impression is, sir, that under the spirit of the law we would have a right to take the votes of the soldiers outside of the limits of the proposed State. It was not an exigency contemplated at the time that citizens should be called to the field when this question should be submitted to them; and I believe upon a fair legal interpretation of the act of Congress in connection with the circumstances, interpreted, as it would be, by those circumstances, the exigencies surrounding us, it would be legal and competent to take and count the votes of the soldiers fairly ascertained outside of the limits of the proposed State. But I rose specially to relieve the minds of gentlemen in regard to the term "may" in the act of Congress. The President has already decided that. One of the members of his cabinet, I happen to know, Mr. President, interposed that objection, and I happen to know that Mr. Lincoln decidedly said that he understood "may" in such a connection as that to mean "shall," and if he signed the bill he would consider himself obliged to issue the proclamation provided the people of West Virginia ratified the amendment.
MR. VAN WINKLE. The President, nevertheless, must judge whether the certificate contains the information required. I am well aware the gentleman from Monongalia is not accountable in any respect for the language in which this act was couched. The Convention need not have any apprehension as it respects the discretion of the President, provided he should be satisfied the sense of the people of West Virginia has been ascertained in the mode prescribed. Of course, the doubt may exist on the part of gentlemen over the way. But I have the most perfect reliance on the abstract sense of justice of President Lincoln; and if he is satisfied the will of the people has been fairly ascertained you need have no apprehension at all - none whatever - that he will not issue the proclamation required.
MR. BROWN of Kanawha. Is it in order to offer a resolution at this time?
THE PRESIDENT. If there is no objection.
MR. BROWN of Kanawha. I propose to offer this resolution, which I will beg leave to read:
WHEREAS, by the ratification of the amendment imposed by Congress to the Constitution of West Virginia, slavery is gradually abolished therein; but under the operation of which provision it will not finally disappear during the lifetime of the slaves now in being - thus continuing an anamolous condition, neither wholly slave, nor wholly free - having the evils of both, without the benefits of either; AND WHEREAS, the troubles and complications which press upon us as a people in the condition of an embryo state, are in no small degree superinduced by the action of Congress in imposing upon us the necessity of adopting the said amendment to our Constitution; and WHEREAS, it is believed, under the circumstances which surround us, that it would be greatly to the present peace and future welfare and prosperity of the State and country if slavery could be abolished absolutely and at once within our borders, provided it can be done in strict accordance with justice and the Constitution and without depriving any loyal citizen of his property without just compensation; AND WHEREAS, the express policy of the President of the United States and the resolutions of Congress have given assurance and pledge of aid to any state that shall desire and request it, to enable such state to emancipate its slaves and abolish forever the institution within its jurisdiction. Therefore,
RESOLVED BY THIS CONVENTION, That Congress be and is hereby requested to appropriate two millions of dollars, which we believe moderate, just and reasonable, to the State of West Virginia, to enable the legislature to effect the desired object, which sum may be paid in bonds of the United States, bearing six percent interest, to be delivered to the Governor of the State of West Virginia upon the passage by the legislature thereof, of an act of immediate emancipation within the first year of our formation, abolishing absolutely and completely forever, the institution of slavery in said State, and making just compensation to the owners thus deprived of their property under the Constitution and laws of the State.
Mr. President, I offer that resolution with a view to meet what I understand to be the exigencies of the occasion, and with a view further to harmonize - for I believe it can be done - every sentiment in this Convention. The resolution sets forth the grounds and circumstances that surround us; the reasons that bring us to this present position. We adopted a constitution in which we provided upon this subject of slavery, leaving it entirely in the control of the legislature without undertaking to affect the institution in any way by the Convention, and the people ratified that Constitution with a unanimity hardly equalled in any constitution ever ratified by the people of Virginia. Congress imposed upon us a condition we are now here to consider and which it is proposed to adopt and ratify as part of the organic law of the State, which manumits one-half the slaves in the State and provides for the freedom of their posterity; and it is that fact that brings us into this difficulty and complication in which we find ourselves, and that too in the midst of a civil war. We have the highest motives, it seems to me, that can be presented to a people to secure our independent and complete organization to secure to our people their rights and their property, to secure to our country peace and harmony; to restore order, to restore law, to restore to the government the affections of the people. The events and circumstances that surround us we have not brought upon ourselves. They were brought on us by the agency of others in which we have been but little actors. These things are produced by circumstances over which we have no control, and it therefore becomes us to meet the issues as they are and provide for the contingencies as best we may. Under the provisions of the Constitution as adopted by the ratification which I take it will be carried by the people, and considering ourselves therefore in this embarrassed condition yet, destined to come forth invigorated and regenerated as a state, yet we come in this anomalous condition as the resolution declares of being neither wholly free nor wholly slave with many inconveniences and annoyances belonging to either condition and to a great extent the blessings of both, these are things we have not brought upon ourselves and cannot help. The question is then, how can we secure the benefits of the greater good. The only way proposed to us and do equal and even-handed justice to all. It seems to me every rational mind that looks at this subject must say, as every rational mind must have seen from the beginning, that whenever we cut loose from the old state the institution of slavery is as certain under the laws of nature to disappear as all the legislation you can make can accomplish; and that every attempt to intermeddle with it to hasten it has only a tendency to interfere and complicate ourselves, as we now find ourselves complicated; does not make the result more certain. Looking then to these realities in order to rid ourselves of this thing at the earliest possible moment and secure to ourselves and posterity all the blessings of a state, we are pressing to promote, it seems to me now is the time to take advantages of these circumstances and act like men. What is the condition of things? One of the very difficulties that is now agitating us today, is this question of compensation, of doing injustice to our citizens by depriving them of property without compensating them. Here is the policy of the United States, adopting a policy clearly declared by the President, in more than one way, and argued at length; a policy pledging the government to aid and assist every state that shall undertake to rid itself of this difficulty and inconvenience; and there is a resolution of Congress adopted with unanimity without parallel, saying that they will do it. And here are members of Congress in the Senate and House of Representatives with bills, one just reported and other bills not reported, asking Congress to do just what they have proposed to do. And they meet the difficulty at every turn: Why, sir, your people and state don't ask us to do what you are asking. There is no request from your legislature or convention or any organized body of your people saying that thing would be acceptable to you or that you require and demand it under this declared policy of the President and Congress. There is a body now assembled to represent the sovereignty of the people of West Virginia in this Convention to frame the organic law; and it seems to me if it could come properly from anybody it could come directly from this body and enable our representatives in the House and Senate to say that they are speaking the sentiments of the people, they are speaking the declaration of an organized Convention representing the people when they say, make that appropriation, and the first legislature that shall assemble will then take into consideration this very subject and leave the lawyers to act and determine the whole question and thus settle forever that which is now a source of irritation and evil and difficulty and danger in our midst.
I hope therefore that every member of this Convention will find himself willing to vote for this resolution, which if once adopted takes away the very objections urged against the resolution of the committee already pending and removes all the grounds of objection urged against it. I hope, therefore, it will be the pleasure of this Convention to consider and adopt the resolution.
MR. DERING. When I came to this Convention it was with a view of sitting and voting alone, not with any view, sir, of making any speeches or uttering any word except yea or nay on the questions that might be propounded to us. What was the object, sir, for which we were convened? It seems to me clear we were convened to incorporate the amendment required by the act of Congress into our Constitution, to prepare for our election and to go home. But, sir, we are met with new questions thrust upon this Convention and we are called upon to give some new action to the people for their consideration. Have we met here for the purpose of incorporating the "Willey Amendment" in the Constitution and preparing for an election by the people on that Constitution, or have we met to construe our work and to pass paper resolutions that will have no effect or validity at all in law? The gentleman asks us if we are willing to adjourn as a Convention and refuse to do justice to the slaveholders of West Virginia. I have never doubted that our Constitution provided amply for the compensation of the slave owners until I came into this room the other day, and I saw various able and legal gentlemen getting out resolutions and asking us to re-affirm just exactly what is in the Constitution. I must confess it has produced some doubt in my mind whether our Constitution does make the provision the gentlemen ask and which they say is so just. The language is plain and simple, so simple that any one that runs may read and understand it effectually. What is the provision for compensation? I am in favor of compensation, and I doubt not every member of this Convention is, at least every one who voted for the 6th section of article II of the Constitution. What is the language? "Private property shall not be taken for public use without just compensation." Is not the language, plain, clear and explicit? Is there any ambiguity whatever in it? To my mind it was as clear as that the sun shines.
MR. STUART of Doddridge. I ask the gentleman from Monongalia to yield the floor to permit me to move to lay the resolution of the gentleman from Kanawha, on the table to be printed. I hope there will not be any discussion on a resolution of that length and importance until it is printed.
MR. STEVENSON of Wood. I would like to get leave of the Convention, if the gentleman will yield the floor a moment, to submit a report in reference to a matter referred to the Committee on Printing a day or two ago.
THE PRESIDENT. If there is no objection, the gentleman can proceed.
MR. VAN WINKLE. I believe reports from committees always take precedence.
Mr. Stevenson of Wood submitted the following report, which was read and laid on the table on motion of Mr. Brown of Kanawha.
The Committee on Printing and Expenditures having referred to them the following resolution, "RESOLVED, That 8,000 copies of the address of the gentleman from Monongalia to the Convention, be printed in English, and 2,000 in German, for the use of the Convention," would respectfully report that they have had the matter under consideration, and find that it will be impossible to get a translation of the address in German in time for distribution. They are of opinion that the publication of the address would promote the success of the new State. They therefore offer the following resolution:
RESOLVED, That 10,000 copies of the address be printed in English for use and distribution by the members of the Convention.
All of which is respectfully submitted, W. E. Stevenson, Chairman of Committee.
MR. DERING, (resuming) I said before we had passed, in a solemn and emphatic form, a provision in this Constitution for compensation for private property taken for public use; and I say, sir, that any resolutions that may be passed in relation to this subject will be nugatory, of no effect, so far as concerned their validity in law. We have done in our organic law what the gentlemen ask us to re-affirm and reiterate in the paper resolution, and it will be admitted by all that any paper resolution passed by this body cannot be used in any procedure hereafter in a legal sense.
MR. RUFFNER. I would inquire, sir, what is the subject before the Convention?
THE PRESIDENT. The report of the special committee was passed by only, as I understand it, and the Convention has resumed consideration of it.
MR. DERING. It does not pertain to our business to pass declaratory resolutions. We might as well go out in the street and hold a mass meeting and re-affirm the doctrine the gentlemen want us to re-affirm as to do it in convention. We have had convention upon convention, legislature after legislature, until the patience of our people is entirely worn out. The call upon us from every quarter to do the legitimate business of the Convention, prepare to hold the election and go home and inaugurate the new State. The doctrine of compensation is not denied by any except by one gentleman on this floor that I know of - not called in question at all. Gentlemen have first the organic law passed by us last winter, adopted and ratified by the people, and they have the constitutions of other states around and the Constitution of the United States to cite as precedents; and the laws of Europe have precedents all in favor of giving compensation. Suppose my venerable friend from Wood had twenty negroes who would come under the operation of this emancipation act as they arrive of age. Suppose his negroes when they arrive at the age should go to him and tell him, sir, you must emancipate these slaves. He would point to the organic law of our State which says private property shall not be taken for public use. He could say the State has failed to fulfill her part of the contract, therefore, I will not emancipate and set my slaves free. Suppose, sir, they will take his slaves off and endeavor to emancipate them by force, why he could go into the courts and get my friend from Kanawha, Judge Brown, and say they are endeavoring to force this emancipation when the State has failed to make compensation; and if Judge Brown would refuse a remedy, he could go into the higher courts of the State and there enforce this provision of the Constitution. He could claim compensation before emancipation would take place and the courts would give him the remedy. Sir, I have no fears but the Congress of the United States or the legislature will make compensation. A bill is now pending before the present Congress, or it will be introduced perhaps today, I see from the papers of yesterday to give a compensation of a million and a half to West Virginia. Why, then, take this useless and premature action on our part. Let us wait to see whether the United States fail to comply with the provision laid down in our Constitution, or the State, before we decide prematurely to give them these resolutions. It resolves itself all into this. It is a question of expediency and that alone in reference to the adoption of the second resolution which the gentleman has presented for our consideration. I hold it will be entirely inexpedient to pass any such resolution. I hold it is our duty to pass the first resolution and then vote down the second. By passing the second resolution, what do we do? We put in jeopardy the existence of our work here and the new State, too. Gentlemen say, why it is in your Constitution that private property shall not be taken without compensation. Why not then, they say, pass it and incorporate it in the resolution and let it go out to the world in that shape? We have done so, sir, in the most emphatic form we can and ample provision is made and every one can understand it. But gentlemen want us to reiterate it in the resolution and give it into the hands of our enemies a club by which they can bruise us.
I admit their loyalty; I respect their opinions; but in this case, when the interests of the new State are in jeopardy, I take the liberty of thinking for myself and my constituents on this occasion. I say you will lose votes for the new State; throw before the community a fire brand and the enemies of the new State will magnify and misinterpret and will lose for us many votes for the new State. I am not so certain we are going to carry the new State by such overwhelming majority as the gentleman from Hancock intimated this morning. Our enemies are on the alert everywhere and forming secret organizations to defeat the prospects of this new State. They are arranging their forces in battle array and on the day of the election they will come up to our surprise with a tremendous vote against the organization of this new State. Let us give them no chance. The provision is there in the Constitution. If they want to handle anything, let them handle that. But I am not for sending forth to the world an empty resolution which has no force in law and reiterating the work we have already done. Gentlemen say by voting down this resolution will be to negative the very proposition we have incorporated in the Constitution; will be saying we do not provide for compensation, and we are not willing our people shall compensate for these negroes. Sir, I emphatically protest against any such construction as that. We have said it where it is effective. We don't come here to construe our work again or negative what we have already done. There it is and there it will remain. It has been ratified by the people, and they will not be called upon to act again upon that clause of the Constitution for they have already ratified it. All they will be asked to do will be to ratify the amendment made by Congress to the Constitution, to vote for that. The people have already passed upon it then. I say it is law to all intents and purposes; and if we get our new State that law will exist and can be enforced by the gentleman from Kanawha. But, sir, shall we endanger this new State, jeopardize this whole movement, all our legislative action on the same, and everywhere else will be set at naught by passing the second resolution, by re-affirming what we have already done in its most solemn and emphatic form. They tell us in Europe and everywhere the compensation principle in reference to negro property, as we have manifested by the Constitution has been lived up to. I do not deny it. I am a compensationist as well as the gentleman from Kanawha, and I have there affirmed it in the most solemn form as a member of this Convention. I have no desire to retract it in the least; and when the time comes for the members of the legislature, if that subject should be before the legislature, I would be for instructing the members from my county to give just payment to those whose slaves will be taken by this emancipation act.
It is right we should do our work speedily, send it before the people and have a vote. Our new State should be inaugurated. I for one will not dot a single "i" nor cross a single "t" in the Constitution or re-affirm what we have done; but I am willing to go home with the Congressional amendment and say vote for that simply and we will have a new State. Sir, we are met with embarrassments on every hand as we progress. During the sessions of the last Convention we had embarrassment enough connected with the negro. Here, sir, we are again met with the embarrassment, again thrown into excitement and the same thing which operates in this Convention to excite and distract it will excite and distract our people; will produce heart-burnings and dissensions and give our enemies a club to break our heads. We have a war going on all around us in our midst and we have sometimes seen the vessel of state billowing in. the storm, floundering like a drunken man, almost ready to plunge beneath the waves never to rise again. So with western Virginia. I have seen the new State matter progressing slowly, but then I have seen it checked and surrounded by storms. I have sometimes realized in fancy that this State will be inaugurated and we will go on a free and happy people; but, sir, my hopes have been almost blasted sometimes by our own friends in reference to this matter. Sir, let us put this matter through, as we have assembled for that purpose, do our legitimate business and go home and see the new State inaugurated. We have not time to debate paper resolutions. The people are impatient, and all they ask of us is that we do the work assigned us and go home and let them manage the matter hereafter. Slaveholders will have compensation for their "property." This Convention is willing to abide by what it has done and they do not desire to be compelled to re-affirm or reconsider their work.
MR. SMITH. Mr. President, I regret as much perhaps as any one in this house that this subject has been brought before us. So far as I am concerned I can conscientiously say I had nothing to do with it. I had no part nor lot in it. I look around and see the members of this Convention, my friends, with whom we entered into what is regarded as a compromise and as an adjustment of this whole question. We did it for the very purpose of preventing excitement not only among ourselves but national excitement. This slave question was one that was, it may be said, in some respects has been, the cause of the difficulties of our country. But it certainly was at the time producing a very high state of excitement throughout the country and every measure that touched the subject was calculated to increase the excitement. I was one of those who have believed for twenty years that nothing could be more imprudent, more improper than the controversies that arose in our legislative halls in relation to the slave property. For twenty years I have refused to read what I have vulgarly called "negro speeches." No man in Congress could make a speech unless he introduced the question of slavery abolition on the one hand and extreme pro-slavery views on the other. I predicted ever since, by mingling in the community and mingling with politicians, that unless this was stayed it would lead to most unfortunate results to the country. I recollect with what pleasure I changed my whole opinions on this subject upon reading the great speech of Mr. Clay, and I believe the greatest speech of his life where he condemns the rejection of petitions and said all they had to do was to let the petitions come in and be laid aside and there end. In the House of Representatives, this subject was very near creating infinite excitement throughout the country, whilst in the Senate everything was calm. The mere simple adoption of that proposition of Mr. Clay's presented an argument of great force the power to quiet the whole of it. The difficulties that exist in the country have arisen there. I opposed and was denounced in my own country as an abolitionist for doing so, the repeal of the Missouri compromise. I denounced it then; I denounce it now, and for that very denunciation I am called an abolitionist and here I believe I am called a pro-slavery man. I, who have been moderate in my views in all time; I who was in favor of a gradual abolition of slavery in 1832; sustained that measure in the Legislature of Virginia. I have sustained it at all times. I have been in favor of it at all times. Yet I am called a pro-slavery man and looked upon with suspicion by those around me. Most unwarrantable and most unjust. It is a violation of every sentiment of my heart and every principle I have entertained for years so long as I had ability to think. I learned it from my father, from the early friends of my father, who, more than many abolitionists have done, liberated his own slaves and removed to Ohio where he said that labor was respectable. He removed to that state that he might raise his sons to habits of industry and to labor. All my friends entertain those views; yet I am looked upon here as a pro-slavery man. And why? Because I am a constitutional man, determined that justice shall be done so far as my voice is concerned. Whilst I am not a pro-slavery man I hope and trust I am a just man and ready to do justice to mankind and ready to do justice to the Constitution and to the great principles upon which that Constitution is founded.
I say I had nothing to do with bringing this question in here. Who brought it in here? It was Congress, not me. And who moved Congress ? I know not. It was a compromise here; settled here; fully adjusted here, and every one was satisfied with it. My friend from Hancock joined heartily in it; my friend from Brooke joined heartily in it; my friend from Preston (Dille) rejoiced most heartily that it had been accomplished. But it has been disturbed. I never took any part in it after it left our hands. I never inquired what was doing. I understood there was some dissatisfaction somewhere, and I understand there was an informal vote taken in the country, not in my county, for it stood fast and firm on that Constitution as I stood firm and fast upon the Missouri compromise. But it was disturbed and that disturbance I have understood, it must be true, was carried into Congress and was the moving cause of the provision we are now called upon to adjust. I therefore say I am clear of that charge - say not I did it.
Well, that proposition now is before us, and there is a new provision introduced into this Constitution. I have examined into the principles of that amendment and I have endeavored to arrive at a just conclusion and my duty under all the circumstances, with a sincere desire to carry this Constitution, with a sincere desire to act justly, with a sincere desire to act fairly by the people. Having this purpose in view I do favor the resolution that is offered. I think it would be better for us, as I will proceed to show that we should have adopted it in a different form. I take for granted that every man of this Convention desires that this resolution of Congress should be made effective. Does it do what it purports to do as it stands? Does it bring about that which it purports to bring about? It says these slaves shall be free. How? I say this resolution has not the power to free them only in the way which I shall point out before I sit down. There is a principle in the Constitution which provides that no state shall pass a bill of attainder, an ex-post facto law or a law impairing the obligation of contracts. That is the Constitution of the United States; and when I wilfully and knowingly violate it, I wish my right arm may be taken off. I never will depart from it. I value it highly. Now what is the effect of that clause of the Constitution which provides that no state shall pass a law impairing the obligation of a contract? That is an inhibition. You cannot do it knowing that it impairs a right growing out of a contract. You have no power to rescind or alter. This question has undergone the examination of the Supreme Court of the United States in a number of instances. In this case this very question has been brought up before the Supreme Court of the United States and it has received the construction of a Marshall, of a Story, of a Washington - all have decided the effect and meaning of the words "impair the obligation of a contract." I will beg leave with the permission of the Convention to call their attention to two cases that have been decided. One of the great and prominent cases was Fletcher v. Peck, 2nd Condensed Reports U. S. Supreme Court 320 (man's goods property) paragraph beginning with the words: "If the legislature felt, etc." to the end of it and the whole of the next two paragraphs. In the same book p. 321 beginning with the words: "When a law is then in its nature a contract, etc." to the close of that and the next paragraph. Same page beginning with the words "The Constitution of the United States declares that no state shall pass any bill, etc." or law impairing the obligation of contracts and thence consecutively to the conclusion of the paragraph ending with the words: "a bill of rights for the people of each state." Page 323, the whole of paragraph beginning with the words: "It is then the unanimous opinion, etc." These references will enable my legal friends to look up the case. (NOTE - The reporter is not now able to complete the quotations made by Col. Smith in this argument, not having the authorities within reach; but they can be verified and completed by any one having a good law library.)
The State of Georgia conveyed to some New England company a tract of 500,000 acres of land. It was alleged that that conveyance was procured from Georgia by fraud on the part of the grantees; that they bribed members and others; that the grant was secured by bribery. This thing was subsequently ascertained; and Georgia at the next sitting of the legislature enacted a law repealing the law making the grant. These people who received the grant had made conveyances of the land, and they attempted to enforce their rights under that grant. Those that sold the land attempted to enforce the payment, and payment was resisted upon the ground that the title was destroyed by the repeal of the law under which the grant was issued. These people plead to it: I know nothing in the world about the fraud; I am an innocent purchaser; I hold under a grant, that grant executed, I hold the property, and that property is conveyed to me in fee simple by the grant, and if you disturb that you do it only by impairing the obligation of a contract. Well, the question came up. It was derived from a grant of the state; and the same question arose in the threshold - the preliminary question arose; Did this principle apply to a state as well as to a contract between individuals? Did it arise in the case of a state as much as it did in the case of individuals? They say it was not intended to control the action of the state in her own grant but it was intended to prevent the state passing a law that would enable one individual to impair his obligation with another; that it was a matter only between individuals; did not affect states.
This question then was before Chief Justice Marshall. He says:
"If the legislature felt itself absolved from those rules of property which are common to all the constitutions of the United States and from those principles of equity which are acknowledged in all our courts, its act is to be supported by its power alone; and the same power may divest any other individual of his lands if it shall be the will of the legislature so to exert it."
If the state is to be excluded from the inhibition of the constitution, then, he says "the will of the state is the only rule of property." He proceeds further:
"It is not intended to speak with disrespect to the Legislature of Georgia. Far from it. The question is a general question and is treated as one; for although such powerful objections to a legislative grant as are alleged against this grant can exist under the principle on which alone this rescinding act is to be supported may be applied to every case to which it shall be the will of any legislature to apply it. The principle is this: That a legislature may by its own act divest the vested estate of any man whatever for reasons which shall by itself be deemed sufficient."
That is the principle, he says, involved here, that a legislature may at its own will and pleasure divest the estate that has been vested in property.
"In this case the legislature could have had ample proof that the original grant was obtained by practices which can never be too much reprobated and which would have justified so far as it respected those to whom the crime was imputable. But the grant when issued conveyed an estate in fee simple to the grantee, clothed with all the which the law can bestow. This estate was transferable, and those who purchased parts of it were not stained by that guilt which infected the original transaction. Their case is not distinguished from the ordinary case of purchasers of legal estate without knowledge of any mere fraud which might have laid. According to the well known course of equity their rights could not be affected by such fraud. Their situation was the same, their title was the same with that of any other member of the community who holds lands by regular conveyance from the original patentee. But if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. Conveyances having been made those conveyances are vested legal estate; and if those estates may be seized by the sovereign authority, still that the legislature vested is a fact and cannot cease to be a fact. It may well be doubted whether the nature of society and government does not prescribe some limits to the legislative power, and if any be prescribed where are they to be found if the property of an individual fairly and honestly acquired may be seized without compensation?"
There is the whole case: Where are the limits to the legislative power to be found if the property of an individual, fairly and honestly acquired may be seized without compensation?
So he says that a state is as much subject to the inhibition of the Constitution of the United States forbidding the impairment of the obligation of a contract as they are from impairing a contract between man and man; that a state is within the inhibition as well as an individual. He goes on further. I cannot talk more wisely and learnedly than when I talk in the language of Chief Justice Marshall - 1 think the greatest jurist not only in this country, but in any other, I think he has no equal.
"In considering this very interesting question we immediately ask ourselves, what is a contract? Is a grant a contract? A contract is an agreement between two or more parties, and is either executive or executory. An executory contract is one in which a party binds himself to do or not to do a particular thing, that is where there is an obligation existing between parties that he will at a future day do something else."
And the other will do something in place of it.
"A contract executed is one in which the object of the contract is performed."
After you make a conveyance of land, it is an executed contract, for it is performed. You sell a negro and deliver him; there it is an executed contract, for the property is delivered over, and the contract is completed. That is an executed contract. But where I make a contract to buy a negro and there is to be a delivery, that is an executory contract. The contract between Georgia and the purchasers was executed by a grant. A contract executed, as well as one which is executory, contains an obligation binding on the parties. Since then in fact a grant is a contract executed, the obligation of which still continues although it is executed, as when you convey land you bind it by a fee simple forever. That contract gives you the land forever. You buy a negro, you buy him for life. That contract gives you a life estate in the negro, gives it to you as long as he is property. It may be a contract for a month, purchase his services for a month; it may be for a year; it may be for the life of another or it may be for the life of the slave. But it is a contract that determines the question of use; it is a contract that determines how long you are to hold him. And when you attempt to take any part of his time, as when you attempt to take my land, you impair my contract; you destroy it. I hold under the contract. Under the contract I have the services of the slave and if you take from me that service you violate that contract and impair it; you destroy it.
"And since the Constitution uses the general term 'contract' without distinguishing between those which are executory and those which are executed, it must be considered to comprehend the latter as well as the former."
(Quotation beginning "A law annulling conveyances between individuals, etc.," and ending: "If contracts made with the state are to be exempted from their operation, the exemption must arise from the character of the contracting party, not from the words which are employed.")
Now I call the attention of the Convention most respectfully to this next section which I shall read. Coming from the mouth of Judge Marshall, it is an admonition to us all, and I invoke every member to listen to it and let it control his conduct. There never was an occasion in which there was a more direct and palpable obligation of the law.
"Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which grew out of the feelings of the moment; and that the people of the United States in adopting that instrument had manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions of the legislative power of the state are obviously founded on this sentiment; and the Constitution of the United States contains what may be deemed a bill of rights for the people of each state."
The Constitution is intended to guard the people against sudden ebullition of passion, violent sentiment, strong impulses to do a thing; and it is to be regarded, this very clause of the Constitution, as a great bill of rights which the people themselves have inserted in the Constitution for the protection of this and other property. Bear that in mind, gentlemen. Here is a case in which the strong feeling is manifest to us all; that we are under strong impulses here and just in the condition to ride over and trample under foot constitutional law - a thing deeply to be deprecated; and you are warned here that you have a great shield and protection in that bill of rights of the Constitution which provides that the obligation of no contract shall be violated by state law. Now, I will read another section from this same author. "The state legislatures can pass no ex post facto law." An ex post facto law is one which alters the grade of punishment and makes it punishable in a manner different from that in which it was punishable when the offense was committed.
"The legislature is thus prohibited from passing a law by which a man's estate or any part of it shall be seized for any crime which was not declared by some previous law to render him liable to that punishment. Why then should violence be done to the natural meaning of words for the purpose of leaving to the legislature the power of seizing for public use the estate of an individual in the form of a law annulling the title by which he holds it? You cannot do it for crime. The Constitution guards your property from confiscation by crime, unless there is a law at the time the act is committed."
You cannot do it for crime; then under which laws, says Chief Justice Marshall, can you seize the property of a citizen who has committed no crime, done nothing but live an honest and loyal citizen, and confiscate that estate? How can you do it? This rescinding act would have the effect of an ex post facto law. It invalidates the estate of Fletcher for a crime not committeed by himself and of those who purchased. This can be effected in the form of an ex post facto law or bill of attainder. How then undertake to do it by annulling the contract by which the property is held? And here:
"It is then the unanimous opinion of the court that in this case the estate having passed into the hands of a purchaser for a valuable consideration without notice, the State of Georgia was restrained by the general principles which are common to our free institutions or by the particular provisions of the Constitution of the United States from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void."
There is the unanimous opinion of the Supreme Court of the United States and that opinion delivered by Chief Justice Marshall.
I will, Mr. President, call the attention of gentlemen to another case - a more prominent and leading case - the Dartmouth College, New Hampshire, case where there was an attempt made by the Legislature of New Hampshire to seize and convert to her own use what is called eleemosynary corporation, a corporation got up for charitable purposes by Dr. Wilcox* and his friends, by which they made a great deal of money and established Dartmouth College, which was chartered by the King of England.
* Reference is probably to Rev. Eleazer Wheelock, founder of Dartmouth College.
The hour having arrived, the Convention took the usual recess.
On the re-assembling of the Convention, Mr. Smith resumed his remarks.
MR. SMITH. Mr. President, in the forenoon I introduced to the Convention the decisions of Judge Marshall in the case of Fletcher vs. Peck, which contained my views most emphatically and clearly enunciated. I could not do justice to the subject or myself unless I introduced one other authority to the consideration of the Convention. The principle which I enunciated I wish to demonstrate beyond the question of doubt, that there may be no question about it, a solemn decision of the supreme court, in the only tribunal before whom a final decision can be had. It is the final tribunal on every question of constitutional law.
There is another leading case with which I imagine you yourself must be somewhat familiar. Almost every lawyer in the United States has some knowledge respecting it; and in New England particularly it was a question that aroused the whole public mind. One of their principal institutions was attempted to be seized by the legislative power and confiscated to their use - the Dartmouth College case. Dartmouth College was an eleemosynary institution resting upon the benefactions of individuals. It rested upon private gifts, private donations made to Dr. Wheeler, a man who has stamped his name on the records of fame, which I imagine as long as learning lasts will not be erased. On the first institute and school in New Hampshire for the instruction of Indians. He afterwards extended his purpose and also made it embrace white as well as Indian, and he sent his agent, a Mr. Whitaker, to London to ask grants of money for the furtherance of his purpose to enable him to establish a college. Those donations were made; and I imagine the founder of the Dartmouth was the principle man in granting means for the establishing of the institution. After it was established, after he had procured the necessary grants of money, he applied to the Crown and the Crown incorporated the institution with Dr. Wheeler (See footnote page 616) as its founder and gave him the right to hold real estate and to take further benefactions from the country and to build up a college to be called Dartmouth College. It has twelve trustees and they had the power of perpetuating themselves. This all transpired long before the revolution; and after the revolution, the State of New Hampshire conceived the idea that she, as a state, had a right to take charge of this college and appropriate it to the public use that it was a public college, got up for public purposes and did not come within the clause of the Constitution that forbid the seizure of private property for public use. These gifts had been executed; it was an executed contract; and nearly every one of the grantors - at least many of them - were dead at the time she took this matter in hand. She appointed twenty-five trustees by the legislature and made it completely a civil and political institution, and took it out of the hands of the founder. Well, sir, the whole country of New England was aroused. It was considered a most unwarrantable and wanton attack on the vested rights of the trustees of that institution. They said the trustees had no beneficial interest in the property. They were simply the trustees to manage the funds without beneficial interest; that the grantors were dead; they had no interest in it for they had given it away. The question came up before the United States court; and I imagine the legal reputation of Daniel Webster rests on the argument made by him in behalf of the college in that cause. His friends say it is the greatest legal argument ever made. He had been a student in that college; his whole feelings and sympathies were enlisted in its behalf. It then came before the lucid mind of Chief Justice Marshall, and he discussed the question like a giant; and he made the whole question as clear as the noonday sun, and in a very brief opinion, too; for that is one of the great distinguishing characteristics of that great man's mind, that he expressed the idea in a few words and made it clear to the understanding of any one.
The proposition of the state was that this institution could be taken for the benefit of the State, because if the State had not a right to confiscate it why, then, they say, what power have they over the corporation of a county? Every county is an incorporation; it is a civil institution; they cannot touch that; they cannot touch a municipal corporation; they cannot touch any public municipal regulations in the country, and you destroy entirely the power of the legislature to carry on the government by the aid of these municipal institutions.
Chief Justice Marshall discusses that. He says: "It is admitted that the state legislature have power to enlarge, repeal and limit the authorities of public officers in their official capacities, in all cases where the constitutions of the states respectively do not prohibit them, and this, among others, for the very reason that there is no express or implied contract that they shall always during their continuance in office exercise such authorities, they are to exercise them only during the good pleasure of the legislature; and when the legislature makes a contract with a public officer, as in the case of a stipulated salary for his services."
But I am not reading the authority I intended. That, "The framers of the constitution could never have intended to insert in that instrument a provision so unnecessary, mischievous and repugnant to its general spirit that the term 'contract' must be understood in a mere limited sense. They could not understand it as controlling the legislature in their action against towns, counties and municipal corporations that are to be used by states in the management of the government. It could never be understood in that sense; that it must be understood as intended to guard against the power of at least doubtful authority the abuse of which had been extensively felt and to restrain the legislature in future from violating the right of property. That anterior to the formation of the Constitution a course of legislation had prevailed in many, if not in all the states which weakened the confidence of man in man and embarrassed the transactions between individuals by dispensing with the faithful performance of engagements. To correct this mischief, the state legislatures were forbidden to pass any law impairing the obligation of contracts - that is, the contracts respecting property under which some individual could claim a right to something beneficial to himself. We see what this contract was introduced for. It was to protect the rights of property in those who had a beneficial interest in it and by depriving no damage would ensue to them; and that since the clause in the Constitution must in construction receive some limitation, it may be and ought to be confined to causes of this description where it involves property. That is the matter which it was intended to remedy. The general correctness of these observations cannot be controverted that the framers of the Constitution did not intend to restrain the states in the regulation of their civil institutions adapted for internal government and that the instrument we have is not to be so construed may be admitted. The provision of the Constitution never has been understood to embrace other contracts than those which respect property or some object of value and confer rights which may be asserted in a court of justice. That is what the term 'impairing the obligation of a contract' in the Constitution, has meant, to protect its property which a party holds and in which he has an interest and in which a state legislature may seek to confiscate it."
I will call the attention of the Convention to another paragraph taken from Chief Justice Marshall's opinion that I think is worthy of consideration here. Now, about six hundred years ago Magna Charta was enacted in England. It was drawn from King John, who had been lording it over the country, traveling over the country with his cavalcade, three, four or five thousand people and his purveyors of provisions riding through the country and seizing supplies wherever they could find them without compensation; confiscating the property of all citizens within his reach to support his retinue he had with him, and it consisted of two or three thousand. The people became so indignant they would bear it no longer; and they had the Magna Charta enacted at Runnymede. Among other things this was provided for; and Mr. Blackstone has said that:
"If there was not another provision on Magna Charta, then that which guarded against the confiscation of property so entitled it to that distinguished appellation 'the great charter'; and in it it is provided that no man shall be deprived of property or liberty without process of law. It must be condemned by the courts and by forfeiture, confiscation for crime."
That was six hundred years ago, extracted by the spirit of liberty that then prevailed in England from the then ruling King of Great Britain; and since that day - since that hour - England has never dared to violate that noble, glorious principle that was included in Magna Charta. Never has been violated unless it is in the hour of revolution. In civil life, in civil bodies, no one has ever had the hardihood to attempt to violate that sacred, that invaluable principle.
Well, the Parliament of England is said to be omnipotent; and notwithstanding that Magna Charta she, in the exercises of that omnipotent power might have disregarded it, for she has no written constitution to guide her; only the opinions of the world and the sentiments of justice as a check upon her. But here is what Chief Justice Marshall says:
"According to the theory of the British constitution, their Parliament is omnipotent and only corporate mights might give a check to popular opinion, which your government has chosen to avoid. But this power is not questioned; and Parliament, immediately after the manufacture of this Dartmouth College charter, the execution of those functions which followed it, annulled the instrument, so that the living donors would have witnessed the disappointment of their hopes. The perfidy of the transaction would have been universally acknowledged. Had Parliament, although she had the power, attempted to put in force such a principle as this, the perfidy of the transaction would have been visited universally upon all concerned in it. Yet then, as now, the donors would have had no interest in the property. Those who might be constituents would have had no rights to be violated. Then, as now, it might be said the trust confided to their protection under the contract would at that time have been deemed sacred by all. What has since occurred to strip it of its inviolability? No reason in justice or law. It is now what it was in 1769."
After the coming in of the Constitution of the United States, which forbids a state to make a law impairing the obligation of a contract, they have not the omnipotence of Parliament, because the Constitution is a check upon them. As Marshall said in the case of Fletcher vs. Peck, "a great public act that is a security against the violation of property." It is a "bill of rights."
I will call the attention of the Convention again to what Mr. Marshall says in this place:
"Before the Constitution was enacted, unless there was some prohibitory clause to the Constitution of New Hampshire, she had just the same right that the Parliament of England had to repeal this charter." Before the enactment of the Constitution, unless the Constitution of New Hampshire or in some other there was something prohibitory to the repeal of it, she had the power then, but he says the power of the government was also the same to repeal this charter at any time prior to the adoption of the present Constitution of the United States; but it would have been an extraordinary and unprecedented act of power but one which could not have been contested only by the state. But the Constitution of the United States has imposed this additional provision, that the legislature of a state shall pass no act impairing the obligation of a contract, and since the adoption of that Constitution they had no power to impair the contract or rights of the trustees in that property in which they had no beneficial interest. It had been placed in their hands by Dr. Wheeler, the founder, and it must remain in their hands in perpetuity, otherwise you impair their rights.
Now, I will come to Judge Story, not equal in mind but equal in purity, and distinguished as a lawyer, distinguished as a jurist; and perhaps he stands along side of Kent, and Parsons and Spencer - Kent and Spencer of New York and Story of Massachusetts. He stands in that class of jurists, and no one transcends him unless it is the great and glorious light of Marshall, of which we all ought to feel proud. They did homage to Chief Justice Marshall. Yes, sir, when I was in Richmond, they visited Marshall there as the great and learned man of the country - the great jurist of the country - made visits to him of respect, Kent and Spencer and Story, in his later days. They visited him as they would a patron saint; and he deserves the consideration of every man in this country; for he has laid the principles of the Constitution on the soundest basis they ever could have been laid by living man, and now they stand confirmed under his decisions and no man is so bold as to question them. When I find Marshall sustaining the construction I seek, I may look no further; I want no other light; it is sufficient for me. But I will call the attention of those who have as much respect for Story as for him:
"But when the legislature makes a contract with a public officer, as in the case of a stipulated salary for his services during a limited period, it is just as much a contract within the purview of the constitutional prohibition as a like contract would be between two private citizens."
Now, you must bear in mind that the contract between citizens is a concession in all the argument. Lawyers who argue these causes never contested that fact; but the question was in the case of Peck and Fletcher whether a state would come within the purview of that prohibition. And now in this case, the question comes: Does a corporation come within the purview; and those gentlemen in arguing this case also say that it is just as binding on a corporation as between individuals. But when the legislature makes a contract, it is just as much a contract within the constitutional prohibition as a like contract would be between two private citizens. Will it be contended that the legislature of a state can diminish the salary of a judge holding his office during good behavior? Such an authority has never been asserted to our knowledge. It may also be admitted that corporations for mere public government may be subject to legislative control, in some matters, but it will hardly be contended that in respect to such corporations the legislative power is so transcendent that it may at its will take away the private property of the corporation or change the uses of its private funds acquired under the public faith. You may deal with the civil corporation and change its constitution, but will any man be so hardy to declare that if they have acquired property you may take and confiscate that property? Can the legislature confiscate to its own use the private funds which a municipal corporation holds under its charter without any default or consent of the corporators? If the municipal corporation be capable of granting donations for charitable uses, then the legislature, under our forms of limited government possess the authority to seize on those funds and appropriate them to other uses at its own arbitrary pleasure against the will of the donors or donees. From the very nature of our government the public faith is pledged the other way, and that pledge constitutes a valid compact and that compact is subject only to judicial inquiry, construction and direction. The state legislatures have no power over it. And here, in 579, the same author, is another objection growing out of and connected with that we have been considering: "No grants are within the constitutional purview except such as respect property. No grant respecting property they admit is within the prohibition except such as respect property in the strict sense of the term - that is to say, beneficial tenements, hereditaments, etc., which may be sold for the grantees for the benefit - (quotation ended with "purview)."
(NOTE: References and quotation used by Mr. Smith in his remarks on the Dartmouth College case are as follows:
Dartmouth College vs. Woodward, 4th Cond. Reports U. S. Sup. Court 547 - the whole of paragraph in p. 547, beginning "According to the theory, etc."
Page 552, whole of paragraph beginning "By the Revolution, etc."
Page 538 from the words "That it must be understood etc." to the words in next paragraph "in a court of justice" inclusive. This quotation precedes those on pages 547 and 552.
Story, 576, beginning with the words: "But when the legislature making a contract with, etc." to the word "abrogation" in same paragraph.
In page 579, beginning: "Another objection growing out of, etc." to the word "purview" in same paragraph.
Journals of Congress from 1782 to 1788, p. 753; the whole of 2nd article, p. 754; the whole of 6th article; Ordinance of 1787.
None of these authorities being at present within reach of the reporter, he is unable to complete these quotations; and in transcribing, in absence of the books, he is not always able to distinguish between the speaker's own matter and matter read by him.)
MR. SMITH. These are the authorities in the case of the Dartmouth College. I might quote a great many other matters from them but I confine myself to them.
Now, I ask you here, if you buy a tract of land, you take a conveyance for it, you hold that land under that conveyance, and that conveyance is for life, for years or in fee. Well, now, suppose before the termination of that estate, where it is a less estate than the fee, the legislature confiscated that without offense. You take it to your use without compensation. Can you doit? I say not without compensation. However, of that I will speak again. But if you do take it, is it not impairing a contract? By the contract you hold it for the term for which it is granted to you. By the contract you are entitled to it for the term for which it is granted, and the State legislature passes a law, or makes an ordinance, or a constitutional provision, which is just as much prohibited as the state law; that they stand in the same category as far as the Constitution is concerned, for the Constitution of the United States is the supreme law over state constitutions and state laws. Now if the state interposes by convention or by legislature to divest that property before the contract is expired, you not only impair but you destroy that contract - utterly defeat it for the residue of the time. Say I buy a negro for a year; I buy him for ten years; or I buy him for his own life. It is an executed contract that these decisions have said is as much within the operation of the Constitution of the United States as an executory contract; one just as much as the other within it; and I buy a negro for life, and here comes the legislature or the convention and declares that I shall not have that property for the balance of his life; that they will take it from me and give it to the negro. Where is my contract in the meantime? By that I am entitled to the slave for his life; by the act of the legislature I am deprived of that life estate. Is not that an impairing of the obligation of a contract; doing violence to a contract? Unquestionably it is. You cannot do it. The state cannot do it in any form or shape whatever, unless you repeal that great charter of liberty, the Constitution of the United States. I fall back upon that as a shelter and security against the violence of legislative action. I have heard it said that a man was not sound as a politician; he was sound as a Union man, if he said one word about maintaining the Constitution. There is some such doctrine as that, and God deliver me from such politicians. Whenever the Constitution is to be wilfully violated and a man is to be denounced because he stands up resolutely, firmly and determinedly for the maintenance of the Constitution of the United States, then I wish to live no longer under this government. It is the Constitution of the United States that gives value to the government. It is the Constitution of the United States that makes me adhere to the Union and stand forth for it and firmly; and whilst there is a shred of that Constitution existing I will hang on to it, and I will fight those who resist that Constitution whether he comes from West Virginia, or whether he comes from the South, or whether he comes from the North. I hold him equally a traitor who attempts to prejudice the public mind in behalf of that great and glorious instrument. Never on earth give up one single star or stripe; never give up one letter or portion of that great instrument. Hang on to it. It is the great charter of liberty and when it is gone, we are little worthless German principalities, in constant war with each other, exterminating each other and making us a disgrace and shame to the whole civilized world. And I say to hold every principle. Before I would yield one inch to secession, to rebellion, I never will give one inch or ask for peace or submit to peace short of submission to the Constitution. We are in the war. Let it go on, and fight on until the nation is destroyed or that government is re-established. I want none of your peace patched up by giving to that rebellious portion of the country an independent confederacy. When you permit that, you destroy your government and there is no hope left for constitutional liberty. None whatever. It is gone. Hence it is let us stand by this Constitution and halt and hesitate, cut off your right arm before you will violate one principle of it. Stand to it in evil and in good report and it has power enough in itself to carry you through the present trials; and there is no necessity of violating anything or of impinging upon it to carry on this country. Within itself it has all the power necessary to put down this rebellion. Sometimes you want to jump a short way to produce a legal result and want to stride over the Constitution. Follow it. Our fathers were wiser than we are and they framed a Constitution which thus far has met every requisition which is made on it. It is capable of meeting every exigency that may arise. Stand by it. We have not as much honesty as we had then; we have not as much patriotism - unselfish patriotism - as we had then. Selfishness has mingled all through in our affairs. Stand to it; that is my doctrine. Stand firmly to it.
Well, I say, I have here established by the decisions of the supreme court, who are the legally constituted body to decide the meaning of the Constitution and the laws and treaties made under it. The interpretation of these belongs to the supreme Court. They have taken up this very Constitution and they have declared that no state shall pass a law which in its effect shall confiscate private property. Cannot do it. As germane to this subject, I beg leave, for the purpose of showing the sentiment that pervaded this whole community in 1784, when Nathan Dane, who has been made distinguished and illustrious for having drawn up this document which was alluded to by my friend from Wheeling (Mr. Lamb). He drew up this and I do think there is more comprehended in it - more of the principles of liberty involved in a small space than I have ever seen connected together.
MR. LAMB. 1787?
MR. SMITH. Passed in '84 I believe.
MR. LAMB. No, sir.
MR. SMITH. Well, perhaps - yes, it is '87. The land of Virginia was ceded in '84, and this was an ordinance made in '87. Now I wish to call attention to these principles of liberty which those wise ancestors of ours incorporated in this ordinance, which is made a compact between the states then existing and those new states to be formed and cannot be altered. It is a compact. After going on and making provisions, he says that "the following articles shall be considered as articles of compact between the original states and the people and states in the said territory."
"Article II. The inhabitants of said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury; and of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law."
That was denied to us a long while; that and proportionate representation. But in the beginning it is secured by this ordinance by this wise man to those states across the river.
"All persons shall be bailable, unless for capital offenses where the proof shall be evident or the presumption great. All fines shall be moderate, and no cruel and unusual punishments shall be inflicted. No man shall be deprived of his liberty or property but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same."
Wherever a public exigency requires you to take it, you shall make full compensation.
"And in the just preservation of rights and property, it is understood and declared that no law ought ever to be made or have force in the said territory that shall, in any manner whatever, interfere with or affect private contracts or engagements bona fide and without fraud previously formed."
Now, there are the great fundamental principles of liberty put in a few words into this ordinance; and it is guaranteed to these states across the river. Haven't we the same right, same guaranty here ? We made this contract with them; we were a party to that contract. I want to call attention while I am at it to another thing in this ordinance:
"Article VI. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes, whereof the party shall have been duly convicted: Provided, always that any person escaping into the same from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid."
Now, who makes this ordinance? It is adopted by the votes of: Massachusetts, aye; New York, aye; New Jersey, aye; Virginia, aye; North Carolina, aye; South Carolina, aye; Georgia, aye.
But one negative - one of three from New York in the negative. Now, under this compact we have a perfect right, it is secured to us in Virginia, should slaves escape and go into this territory across the river for which this contract was made, we have a right to go there and reclaim our slaves and they who resist us in doing so violate this solemn compact. Nathan Dane was the author of that compact - a Massachusetts man, whom Daniel Webster commended so highly for so noble an instrument, as it was; and it is the escutcheon now which is printed upon his tomb that he was the author of this great ordinance; and so great was it that in the Western Reserve some few years ago they had a convocation of the people to celebrate the passage of the ordinance. Well, I am one of those who take the whole. I say that ordinance gives back to the southern people their negroes when they run off. I want the whole to be executed according to its letter, according to its spirit and intent; and I do not want any violation of this law. Why, they will not allow them to take them in Ohio; but as I understand the opposition here you come right into our midst and take them. Ohio is secured against this taking of private property but we may not be secure against it. We were unfortunately better off under the law in Ohio than we are in the State of Virginia. Great God! Can such a sentiment as this be tolerated in this community for one moment? Can this Constitution of the United States be utterly disregarded and ignored by Virginians, citizens? And can this infamous doctrine of confiscation - I may use the language of the judges, of taking private property without just compensation - be tolerated for one moment in any civilized community? I call it a crime to attempt it or intimate that you are ready to do it. It is in violation of all the principles of our Constitution. It is in violation, says Marshall, of the spirit of our institutions. It is against everything that is held sacred and inviolable in this country. I then take it for granted that there can be no man - I lay it down as a concession that there can be no man who has a right to adopt a doctrine so abhorrent to the citizen as that this property may be taken from the owners without compensation. He cannot be tolerated in any community. He is a hissing serpent and a reproach to civilization who will adopt it. So says the authority everywhere.
Then I think we clearly established the first proposition with which I set out, that it is not possible to take property without compensation. Now let us look at the position we occupy and see where we stand. Here is a proposition that declares that slaves over ten and under 21 shall be free at 25 and that slaves under 10 shall be free at 21. It is mandatory that they shall be free. Well, are we to presume the men who adopted this provision of the Constitution did not know what they were about; did not understand the force and effect of their own provision? Are we so to understand it, that they did not know that President Lincoln, who is a great constitutional lawyer, as my friend from Monongalia said this morning, an honest and upright man - and I endorse it with all my heart - and determined if he understands it to enforce the Constitution? He loves the Constitution. He is an old line Whig and cannot help loving it. He learned it from his infancy; drew it in with his mother's milk, and he cannot help loving the Constitution. And he adopted this kind of an understanding when he amended it. Did he contemplate such a result as this that these negroes should be confiscated without just compensation? Did not he contemplate that you yourselves who are eager for this new State that we who are eager for this new State, would not let so paltry a sum as the value of these negroes interfere with the carrying out of this principle ? Did they intend this thing should not be so? Do you say now the Congress intended that this should be a mere brutum fulmen; that their declaration should be of no effect? For I tell you without some action on the part of the State or some one else this thing don't free the negroes. It don't free one of them. Not one. Now, do you intend to free them? Is it your desire to free them and leave it beyond doubt that they are to be free? Is that your object? If it is what these men who sent you this thing to vote on intended and if you do not free them you defeat that object, and you do not free them unless you make provision for compensation for them. You can do this. So far as I am concerned I do not care three straws about this because this brutum fulmen it has no effect and don't liberate the slaves. And here you propose to do that which you don't do. That is the amount of it. You cannot take this property. You cannot take this property without impairing the contract only by the purchase of it. Cannot do it. Here is the Supreme Court of the United States has decided you cannot do it. You cannot impair the obligation of a contract. You cannot take from these men the right to the service of this property. Now, my opinion is - it has been the trouble with me all the while, you have been looking to the making of this State - this was your secret object. Have never thought that if there is nothing done here to satisfy Mr. Lincoln that this compensation in some shape or other is to be made that he had implied by his act that this was to be done, and nothing been done towards it that he would not interpose his objection? I know the attorney general considered this proposition. I do not know whether he did in his expressed opinion or not but in private conversation and I answered him by telling him this provision would be made; there would be no difficulty on that point. But suppose you go back to Abraham Lincoln. We all admit he is an honest man; and you take back this Constitution to Mr. Lincoln. You know he is a great man for compensation. Nearly all his last message was taken up with the necessity of making recompense for slaves - a necessity arising out of the unconstitutionality of taking them without it. Says he, "Have you made a provision on this subject?" Have you? Why, we say it is there in the Constitution. But, says he, "I want to see, like an old neighbor of mine who was going to be dragged into a mock duel. He didn't want it to be mockery; he would not let them load the guns unless he was present, and that spoiled the fun. He said he wanted to see the bullet go down." Mr. Lincoln may want to see the bullet go down.
Now, whilst we are guarding against one difficulty, let us shield ourselves against the other. Is not there just as much probability that Mr. Lincoln will send it back for some express provision satisfactory to him? And if you make a resolution showing your determination to do so take that with you and take it to Mr. Lincoln and he will be satisfied. But you don't do it. You vote this resolution down, and Mr. Lincoln hears you have voted it down. He says the resolution in your speeches was winged and floating through the air, never to be caught hold of again. He says I look at your acts. Here is your resolution in which that thing is brought expressly before you, and when you are brought to the test you refuse to vote on it, and that may be quoted against you; that may be a great difficulty in the way of getting a state. Now I apprehend more difficulty in that than the big club you talk of that is to be ruinous to us. Well, they say if you vote this resolution, and, lo, it is to be very disastrous; we have a very illiberal people. They are told that here is a constitution that is to be carried and perhaps fifty cents or a dollar is all you will have to pay on it; and that is so alarming to them it will intimidate them from the execution of the contract. They will not vote for it. You will drive them off, and for fear of having to pay a little money. Now, I might say to my friend from Marshall, that his German constitutent that he had a conversation with, suppose you go to the German and tell him that here is the Constitution. Yes, but says he you all said there in the Convcaition we have to pay for the negroes. Will you deny it to the German and say there was no such thing said? No, as an honest man, you cannot deny it. Well, then, if you said so, we will have it to pay. Yes, that is what we will have to do. There is no mistake about it. But you cannot. We tried to manage it very adroitly; and if it be so we could cheat you and we could conceal it and drag you into it by the very concealment you propose to carry it through; by committing a fraud upon those constituents, you expect to carry it through. Now, it is a settled principle of law that there is no distinction whatsoever in criminality between a suppression of the truth and the affirmance of a falsehood. In legal acceptation the criminality is precisely the same, and either is enough to set aside a contract. You invalidate a contract by the suppression of the truth and by the affirmation of a falsehood; and in morality and in law there is no distinction. So with a convention, who are set apart to form a constitution for the government of a great state. Are we to inaugurate this under a falsehood - apparent, flagrant falsehood and suppression of truth? Are we not doing it? You all say that if the fact as set down stares you in the face your constituents will not vote for it. We must conceal it from them. If they know the fact they will not vote for it. Therefore, we must be guilty of fraud and draw them into it. But suppose you are pressing this fraud upon them; you are exerting it upon them, and here comes up an adversary, one we are always looking to, speaking to. You are afraid of some enemy lying in ambush to seize you at some point or other and make assaults upon you. Now suppose one of these enemies meets you when you are out on the stump and he tells you whilst you are endeavoring to conceal the fact that they will have to pay for the negroes, he comes out and says you all averred the fact here on the floor but you had not the boldness and the magnanimity to come up and declare in writing what you affirm in speech. Hadn't the boldness to do it; and he will tell them that if they vote for this Constitution they will have to pay for these negroes. You will have all the injury of the allegation that you pay for the negroes and then you will have it superadded to that allegation that you attempted to commit a fraud upon them. Now, to talk about keeping this from the public, concealing this from the public mind. You say it is in the Constitution. Yes, I know all about that. But you are. afraid to declare it is so, and the reason you assign is that your people will not vote for it. You cannot get rid of it. You yourself said so (referring to Mr. Dering) ; said you were furnishing a club to break your head. So my friend from Marshall (Mr. Caldwell) said so; told us the instance of the Dutchman who would not vote for it. So all have told us. My friend from Marion said so; and when he finds he is a participant in the falsehood I believe he will retract his position. And I hope my friend, however deeply he may be steeped in this subject and deeply impressed against everything that may relate to the purchase of a negro, I believe he will in his honest convictions come out and say it is wrong. I have faith in his improvement; and I believe he will come out and maintain the sound doctrine, the honest truth. You will thereby furnish an evidence of integrity towards the Congress who have sent this to you. You will furnish evidence of integrity to the President who sent this to you; and this report and this resolution ought to accompany the vote that is sent on and let them see we have not worked in the dark; we have not worked by concealment, under fraud, but we have worked honestly, nobly, fairly. But I hope my friend when he comes to reconsider and see the position in which he has placed himself, I believe him to be honest, I think he will retract that false position which he has taken.
I would a great deal rather he would come out and say: I oppose it because I don't intend to pay, sir. That is the manly ground; not taking the ground that throws you into the position of attempting to practice a fraud upon your constituents. Cannot do it. No man can take a just position here and place himself right before the country and take any other than the fact that he is willing to declare here that which many respectable and intelligent and worthy and honest gentlemen have reiterated here to be our duty.
I have references to various other authorities to prove the proposition with which I originally set out. I have not availed myself of them because I do not wish to occupy time unnecessarily. I judge from what my friend an old and cherished acquaintance from Upshur (Dr. Pinnell) said, he is laboring under some great alienation (Laughter). I hate to say that, for I always think old line Whigs are sound in all things; but he says he is a little suspicious; don't like the way this thing has been worked; there is something that is sinister in it, and he proposes fifteen. Well, I told him I was content with it. He wants some of the bone and sinew of the Convention added to this committee. He seems to lose confidence in the respectable gentlemen who framed this report. He is not satisfied with them; and I think he has indulged more in suspicion than he has in substance. Substantially there is nothing to complain of; but it rests in a vivid imagination, and when it is aroused up to belief that some sinister purpose is underlying, his imagination goes to work and like rumor, reaches to the skies. I know he is open to conviction, and I believe that he will throw aside all unwarrantable suspicions of that sort and not attempt to make the Convention believe that there is some improper movement going on to delude and deceive the unwary. That seems to have been the drift of it; but I know his better judgment and his kinder feelings have long since overcome that idea of suspicion, and now he has got all right. I am satisfied of it.
Well, my friend here from Taylor - I hardly know what to say to him. He has taken a position which to me is more novel than any I ever heard in the world. If his doctrine be true why all you have to do is to steal a man's horse and then say he had no property in him and therefore there was nothing to take. The very moment you lose the property he ceases to be yours and you cannot take him. That is his doctrine. I have no doubt he has retracted it before now. It is a hasty opinion he has taken, and he is right to surrender. I know he will surrender because he is a just and honest man. I know he wouldn't take a false opinion and stick to it against the belief of everybody else.
MR. STEVENSON of Wood (in his seat). Is he an old line Whig, too?
MR. SMITH. I do not know; I should doubt it.
Well, my friend from Morgan - (Mr. Wheat). He has said there is no taking of property for public use; that therefore we are not subject to the charge of violating the Constitution; we don't take it for public use. What do we take it for? Whose use do you take it for?
MR. WHEAT. You don't take it at all.
MR. SMITH. But you do. You say it shall be free. I will tell you who you take it for. You take it for the use of the negro. You take the service from me and give it to the negro.
MR. WHEAT (in his seat). He has the best right to it.
MR. SMITH. Why do you do it? Because you say there is a public exigency now that requires that this property shall be set free. I concur in the statement made by the chairman of the committee in the very able, and eloquent and learned speech he made here, when he said if this thing prevailed, our Constitution was carried into effect and our government got into operation property would be doubled in value, every sort of improvement would advance; we would have literature also sustained that would make us a growing and glorious state. What is all that? You take the negro for the purpose of effecting that end. Is not that taking for the public use? There is a public exigency. You take the negro to promote that great public interest. If so, what sort of propriety is there where all unite in the enjoyment and benefit - all have their share of the benefit where is the propriety of taking the price it costs off a few slaveholders? Now, it will not do to tell us that slavery is a curse; that we cannot hold property in slaves. Here, this very ordinance we have read from signed by every state in the Union has declared that there is property in slaves. The Constitution has declared it, and it has been declared by the laws of our country that slavery has been regulated for 240 years in this country. To come now and tell me that what has been so long regulated and has so long existed in this country and which all our country has been accustomed to and dealt with for that length of time - to tell us we cannot hold property in slaves! But you don't say so. I beg your pardon for intimating it. But I ask dare any one say so in the face of the truth. I can see how it is gentlemen coming from another state where slavery has not existed and where they have what are called the benefits of a free country and where popular prejudices run very high, and great excitement has been produced and abolition has been existing to prove that slavery was a curse to the dominion of God and man - I can see how they may come to that conclusion; but for a Virginian, born and raised, accustomed to all the habits of Virginians, accustomed to the use of slaves all their life and seeing how it is used - for them to raise the charge here in Virginia where there is now a law of the land at this moment fixing a penalty of $500 for the man who denies that there is property in slaves! Any man denying that fact now is liable to a prosecution and incurring a penalty of $500. This very day, and this very hour, this is the law of Virginia!
Well, I have read a little history in my life; and in early times in the midst of passion and fury amidst great religious excitement, I recollect the time when they burned Servetus - I believe it was - for entertaining some free principles of religion. I believe it was the great founder of our church (I address myself to the gentleman from Hancock). In our church I believe there was a time when - who is the other Presbyterian gentleman? (A voice "Calvin") Calvin burned Servetus, and burned him for the glory of God. Servetus, I believe, held liberal doctrines. I believe the doctrine of the old church, the Methodist - Calvin come up and burned him. Now I hope my friend from Hancock has not come here with any such sentiments as Calvin, that it will be for the glory of God to burn the slaveholders.
MR. POMEROY. I don't think it would be to burn the gentleman from Logan.
MR. SMITH. Don't think it would; we are too great friends; members of the same church, and therefore have more respect for each other. However, an outside member. My wife is a member of the church. I belong to the Methodists; but man and wife are one, and she is the one, so I am in the church with her.
MR. POMEROY. Yes, and I have no doubt in that case she is the best man of the two.
MR. SMITH. I have no doubt of the fact. All the neighbors say so.
Now, I want to deal with this thing seriously. It seems to have got up a growing sentiment here that slavery was to be thrust out; no sort of respect for it; it was not a property that should be paid for; and the whole community would be aroused and excited if you attempt to make them pay for negroes. Suppose my friend from Wheeling should have been more unfortunate than he is now (apparently referring to Mr. Paxton) and as banks in times past were obnoxious to the public censure and they were going to burn up the United States bank. Now suppose there had been a public furor here against banks and the crowds should have taken it into their heads that it would have been beneficial to them to have the banks of Wheeling and all their funds. What resistance and what an outcry there would have been over such a seizure of the bank. This poor helpless creature that has no friends. How he would have invoked these authorities. You cannot impair the obligation of a contract, in the language of Story and Marshall. Although it may be regarded in some sense a public corporation; if they have funds in it, you cannot wrest it from them. But I do insist upon it that if any cases are to be dealt with harshly, I insist upon it my friend should make a voluntary donation of half his bank. Some gentlemen who have a good large quantity of land, we will confiscate some land too. We will not confine ourselves entirely to negroes. Let us confiscate some land to help pay for the negroes. We might as well do one thing. You can just confiscate land as well as negroes; banks as well as you can negroes. I do not know now in the public estimation that negroes are any more obnoxious to the public censure than banks.
I have a few words more to say as a reason why I have a right to claim at your hands as an act of justice to these slave holders that this resolution should pass. There is a good, a valid and substantial reason. You want them to vote for you; you desire it. Why are constitutions submitted to the people? Recollect according to this provision that an election is to be held to vote upon the ratification of this Congressional amendment, and that the proposed change is the only thing to be voted on. You are not to vote on the Constitution according to the provisions of this act of Congress. It is the change alone. Well, now, we will present this proposition on the face of which it is declared that the slave shall be free. No matter about that clause of the Constitution that says it shall be paid for. But this thing is submitted to the people for their consent to it; their consent to this other article; and if they give their assent to it they give it by vote and never afterwards can repudiate their assent. Now, you cannot impair a contract where you consent to it. It is not impairing a contract when you agree to it. You cannot impair it because the party who is entitled to the benefit of the contract has entered his consent by his vote. Now, there is my condition. I do not fear the effect of this proposition on my property. I have not the slightest fear of its effect upon it. You cannot take a single negro from me till you do pay me for it. Suppose when this proposition comes up and I am called upon to vote for it before the people and I either give my assent that my negro shall be free and my negro seeks his freedom by suit and the question is brought into court. He will bring a suit; that suit will be prosecuted in court. The negro will say under that clause, I am free. I say under the provision of the Constitution you cannot impair the obligation of a contract. The negro says there was no contract to impair because you assented to it and therefore it is not violated; brings my vote, brings the vote of every slaveholder; and for his own protection, lest he might give assent to that clause of the Constitution, he is compelled to vote against it to secure his property; every slaveholder in the country is compelled to do it. People who have property are more sensitive on that than almost everything else. It is a sensitive nerve, the pocket nerve, and you cannot touch it; and there is none of us here but is sensitive. You think we ought not to make any fuss if we lose all our negroes; but you are all very unwilling to let your people pay fifty cents apiece for the negroes. But some could have $20,000. I know one man who has no other property, a family; they are old Virginians that have been out in this country twenty-odd years, and I know my friend here knows -
MR. PINNELL. Are they in Dixie now?
MR. SMITH. No, sir, they are living, good Union people, and through their negroes. There's children dependent on it for support. You involve in a lawsuit about it. You involve the country about it.
Here is another thing. Here is Greenbrier; considerable holders of slaves; they have to be invited here; they have never been in this Convention; they have never yet been in our legislature; never participated with us at all; and we have never been able to learn what their sentiments are. We want to win them over. How do we do it? We take our Constitution and take this provision here, and they will say at once, you have involved their negro property in trouble; and with all that trouble you have thrown around our negro property you ask us to come in and be part of you and live honestly and peacefully with you. Well, now, we place ourselves in a very awkward position, to invite them in. Say it is Pocahontas, Pendleton and Hardy is in that condition. Morgan, I do not know what her slave population is. Hardy had a good deal of that population.
MR. WHEAT. Morgan, 48, sir.
MR. PINNELL. What is the slave population of Logan?
MR. SMITH. I suppose 150; a good many men there that own slaves; and in Wyoming there is a good many slaves. But we are going there with the olive branch asking them to come in and participate with us in this Constitution and this government; and we go to them and tell them that the Convention - that they all spoke it in words; they all said they were willing to pay, but no one would put it down in writing. They want us to take their verbal obligation. Now, if you would give us your written obligations as an expression of your determination, we would take that and it would be a most beneficial thing in winning them over to us. But everything is subject to misconstruction and we are in doubt upon the legal effect of any measure. Why, if property is concerned, he will not trust an inch, he will not yield to doubt at all. He wants the thing certain. He wants to know what is to be the end of it. Therefore I say that if you want to get support you had better do this. You will not lose. I would volunteer if it was not venturing too much on the confidence I have in the honest community, but I will venture that where you would lose one vote you will gain two by adopting this resolution. Now, that resolution answers, is equivalent to me and to every man that holds slaves, as a protest to declare a contemporaneous exposition of the Constitution. You must recollect the Constitution and this provision was adopted before; but if there be anything of doubt resting upon the minds on whom we have to operate - we have to operate on slaveholders and satisfy them that there is no doubt, and according to the decisions of the supreme court and what state courts and contemporaneous exposition of a law is most potent authority in giving construction to the law. That is decided in the case of Edwards, lessee, vs. Barbee, about the city of Nashville. There the exposition of it by those who were about to perform, and the approval of that performance by the state, was received as evidence in the construction of the constitution. So it is everywhere.
MR. POMEROY. How many votes did Logan county give on the ratification of the constitution in April last?
MR. SMITH. I do not know. The army was there and could not hold a poll.
MR. POMEROY. Any probability of opening a poll on the submission of this amendment?
MR. SMITH. I hope so.
MR. BROWN of Kanawha. I would ask whether it gave half as many votes against it as his county did?
MR. POMEROY. The fact is Logan county gave no vote at all.
MR. SMITH. That is the reason it needs defense. Your county has had no oppression. Your county has known nothing but prosperity, and our country has been overrun and desolated, and you want to desolate it more. Logan and Boone, and all those counties, Wyoming, Kanawha, Fayette, Nicholas - they have all been desolated. I don't complain of that. They have borne more than any other part of the state, and it illy becomes the county of Hancock which has had nothing but prosperity to raise a question of that sort. She has had peace and plenty and been protected by Pennsylvania on one side and Ohio on the other. She is in the little panhandle and that runs up there and is like a sword in the scabbard, you cannot approach it. Not so with us. We are liable to assault from all quarters; to be overrun.
Now, I tell you this: I would have more faith in you if you had said this and given evidence of it; but when you say this and without any cause refuse to put it upon paper, it makes me distrust your people hereafter. You distrust your own constituents; you are afraid of them. If you are afraid to trust them, do you want us to do it? Gentlemen, I ask it as a favor to myself, to that portion of the community in which I reside - which I represent - to pass this resolution, which is nothing but just notice; and although you may entertain the opinion that it is offensive; that it ought not to be and is necessary to be done, we think it ought to be done; and in the spirit of compromise we ask you to do it; to give us the assurance of your pledge by a resolution that may be used here, that may be used at home, and which can do you no harm but may do good to us, we ask you as a favor to us, in the spirit of harmony we ask it as we desire that our whole State should harmonize, for we will have trials and difficulties to encounter a plenty without having quarrels among ourselves. Our State will have difficulties to encounter with old Virginia, and we should endear the State to every inhabitant as much as possible. We should do nothing to fret and provoke them; to drive their affections from the State. We should unite as a band of brothers and where one is unwilling to do this and the other is unwilling to do the other, we harmonize on middle ground. I thought and still think and believe that there should have been a different proposition. I have yielded my objection. I think they ought to take it yet; but I propose to add to it this: "To enable this Convention constitutionally to give effect and validity to the foregoing clauses which relate to slaves under ten and twenty-one and harmonize the same with the 6th section of the Constitution, it shall be the duty of the legislature of the said State, and they are hereby required, to provide by law a just compensation for the owners of the slaves so liberated. Now, that I think would have a very beneficial effect with Mr. Lincoln; it would have a beneficial effect with the slaveholders in our section of the country; it would induce them, most probably, to vote for it, and I have no doubt a great many would vote for it. And without it I fear you cannot get the slaveholder to vote for it; and you are driving them off by your every action.
I have submitted my views on this subject, and I believe I have nothing more to say.
MR. SINSEL. As the gentleman is a legal man, acquainted with the decisions of the courts, I want to know how the State of New York liberated her slaves.
MR. SMITH. I do not know whether she liberated antenati or postnati. But I understand they were all gone but a few lame and blind that people did not want. She just told them they might go. Mr. Jefferson, the most advanced friend of emancipation proposed to act on the postnati; but he never dreamed of coupling the act on the antenati. No one has ever pretended so, and if any one has done so I am not aware of it. I do not know a single case; and if they did attempt it was where there was some old lame, halt and blind that it was a God's blessing to get rid of.
MR. STUART of Doddridge. I have been a very patient, and I hope honest, listener for the past two days. I was listening to the arguments on both sides. Permit me to say now, I have heard very little said on this floor that I cannot fully endorse; but before proceeding in the discussion of this matter for a very short time - and I would propose to be very brief - let me say to your Honor, I am exceedingly sorry this thing should have been agitated at the present time, although it was proposed to us by perhaps the wisest men of our Convention, those to whom I am disposed to give great respect. The gentleman from Logan before he entered into the discussion of the subject which he proposed to discuss desired very much to place himself right before this Convention; that his status heretofore had always been right; that he was one of the conservative party, an "old line Whig," that he was neither a slavery propagandist nor an anti-slavery man; that he opposed those parties who agitated; that it had been his course through life. I am willing to give the gentlemen full credit for that; but, Mr. President, it seems to be ordained - not ordained by this Convention, but ordained by a higher power that this slavery agitation shall never cease; that there must be some party to stir up matters. You will recollect, gentlemen of the Convention, that the slavery propagandist was not satisfied with the Constitution of the United States, and the anti-slavery men were not satisfied with the Constitution of the United States. They have kept up an eternal dispute over that matter, and that very cause has brought upon us our present calamity. I am one of the men who say I can meet my friend from Logan and say I am one of those men opposed to these agitators; that I was willing to take the Constitution of my country as the heart Magna Charta, as spoken of, and I was willing to abide by and be governed by it; that I want no interpretations, I want no additions, but am willing to take it as security to me for my property, life, liberty and property; that I am satisfied with it. But these gentlemen, you know who went off into the rebellion were not satisfied with it. They were afraid that harm was going to be done with them; and when we appealed to them and told them the Constitution of the United States was sufficient guaranty to them for all their rights, that they had nothing to complain of, they said they were afraid something would be done and they wanted further guaranties and securities. That was the position they took; and now, Mr. President, as I desire, like my friend, to place myself correctly here before this Convention, let me say to you, as I ha