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Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

December 20, 1861

The Convention was opened with prayer by Rev. James G. West, of the house of delegates; and the minutes were read.

MR. STEVENSON of Wood. Mr. President, I wish to offer a resolution and have it considered at the present time if the Convention will agree to it.

The Secretary reported:

RESOLVED, That during the session of this Convention the compensation allowed the door keepers for their services shall be two dollars each per day.

MR. STEVENSON of Wood. It might be necessary to give a word of explanation in reference to that matter. The resolution passed here a few days ago fixed the salaries of all those officers at the same they were during the June convention. The amount of two dollars a day was fixed by that convention in June; but I find in looking over the proceedings of that body in August that there was a resolution offered and passed making the compensation three dollars a day. The understanding was, I believe, that these officers should have two dollars a day; but in order to fix the matter certainly, so that all parties will understand it, I thought it would be better to have the resolution adopted. I will state also that the calculations made by the Committee on Expenditures were based on the understanding that it was to be two dollars a day.

MR. VAN WINKLE. I do not remember precisely the reasons that induced the members in August to raise the compensation; I have no doubt, however, they were good ones. I remember the subject received some ventilation, and I would suggest that probably it ought to be continued at that rate for this reason. The reports are either in now or will be within a very few days. After we assemble again most of the committees will be discharged from any further committee business and we shall probably sit here morning, noon and night; in which case I should not think three dollars was too high a compensation. If we hold evening sessions it would not be too high.

To test the sense of the Convention, I move to strike out "two" and insert "three."

The question was taken and the motion was rejected; and the question recurring on the resolution as offered, it was agreed to.

MR. VAN WINKLE. If this report -

MR. BROWN of Kanawha (interrupting). I am instructed by the Committee on the Judiciary to tender the report of that committee this morning, and will ask that it be laid on the table and printed.

Following is the report as submitted and printed:

Report of the Committee on the Judiciary Department.

The Committee on the Judiciary Department, having had the matter referred to them, under consideration beg leave to make the following report:

1. There shall be a Supreme Court of Appeals and circuit courts. The jurisdiction of these courts, and of the judges thereof, except so far as the same is conferred by this Constitution, shall be prescribed by law.

2. The State shall be divided into nine circuits, as follows: (1.) The counties of Hancock, Brooke, Ohio and Marshall shall constitute the first circuit.

(2.) The counties of Monongalia, Preston, Tucker and Taylor shall constitute the second circuit.

(3.) The counties of Marion, Harrison and Barbour shall constitute the third circuit.

(4.) The counties of Wetzel, Tyler, Pleasants, Ritchie, Doddridge and Gilmer shall constitute the fourth circuit.

(5.) The counties of Randolph, Upshur, Lewis, Braxton, Webster and Nicholas shall constitute the fifth circuit.

(6.) The counties of Wood, Wirt, Calhoun, Roane, Jackson and Clay shall constitute the sixth circuit.

(7.) The counties of Kanawha, Mason, Putnam and Fayette shall constitute the seventh circuit.

(8.) The counties of Cabell, Wayne, Boone, Logan, Wyoming and Raleigh shall constitute the eighth circuit.

(9.) The counties of Pocahontas, Greenbrier, Monroe, Mercer and McDowell shall constitute the ninth circuit.

(10.) And in the event that the counties of Pendleton, Hardy, Hampshire and Morgan become a part of the State, then they shall constitute another circuit, to be called the tenth circuit.

(11.) And in the event that the counties of Frederick, Berkeley and Jefferson become a part of the State, then they shall constitute another circuit, to be called the eleventh circuit.

3. The legislature may, from time to time, re-arrange the said circuits; and after the expiration of five years from the time when this Constitution shall go into operation and thereafter, at periods of ten years, may increase or diminish the number of circuits or the number of courts in a year, as necessity may require.

Circuit Courts

4. For each circuit a judge shall be elected by the voters thereof, who shall hold his office for the term of eight years, unless sooner removed in the manner prescribed by this Constitution. He shall, at the time of his election, be, at least, thirty-five years of age. During his continuance in office, he shall reside in the circuit of which he is judge.

5. A circuit court shall be held at least four times a year, unless otherwise provided by law, made in pursuance of section 3, by the judge of each circuit, in every county wherein a circuit court is now, or may hereafter be, established. But the judges may be required or authorized to hold the courts of their respective circuits alternately, and a judge of one circuit to hold a court in any other circuit.

Supreme Court of Appeals

6. The Supreme Court of Appeals shall consist of three judges any two of whom shall be a quorum. They shall be elected by the voters of the State, and shall, at the time of their election, be at least, thirty-five years of age. They shall hold their offices for the term of twelve years, unless sooner removed in the manner prescribed by this Constitution.

7. The Supreme Court of Appeals shall have appellate jurisdiction only, except in cases of habeas corpus, mandamus and prohibition. It shall have no jurisdiction in civil cases when the matter in controversy, exclusive of costs, is less in value or amount than two hundred dollars, except in controversies concerning the title or boundaries of land, the probate of wills, the apportionment or qualification of a personal representative, guardian, committee, or curator; or, concerning a mill, road, way, ferry, or landing, or the right of a corporation or a county to levy tolls or taxes; and except in cases of habeas corpus, mandamus and prohibition, and cases involving freedom, or the constitutionality of a law.

8. When a judgment or decree is reversed or affirmed by the Supreme Court of Appeals, every point made and distinctly stated in writing in the cause and fairly arising upon the record of the case, shall be considered and decided, and the reasons therefor shall be stated in writing and preserved with the records of the case.

9. Special courts of appeals, to consist of three judges may be formed of the judges of the Supreme Court of Appeals, and of the circuit courts, or any of them, to try any case, or cases, which may come before the Supreme Court of Appeals, in respect to which any of the judges of said court may be so situated as to make it improper for him to sit on the hearing thereof.

10. Judges shall be commissioned by the governor, and shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office. The salary of a judge of the Supreme Court of Appeals, shall not be less than two thousand and five hundred dollars, and that of judge of a circuit court, not less than two thousand dollars per annum, and each shall receive a reasonable allowance for necessary travel.

11. No judge, during his term of service, shall hold any other office, appointment, or public trust, and the acceptance thereof shall vacate his judicial office; nor shall he, during such term be eligible to any political office.

12. No election of judge shall be held within thirty days of the time of holding of elections of president and vice-president of the United States, or of governor, or lieutenant-governor, or of attorney general, or of members of Congress, or of the legislature.

13. Judges may be removed from office, by a concurrent vote of both houses of the legislature; but a majority of all the members elected to each house, must concur in such vote; and the cause of removal shall be entered on the journal of each house. The judge against whom the legislature may be about to proceed, shall receive notice thereof, accompanied by a copy of the causes alleged for his removal, at least twenty days before the day on which either house of the legislature shall act thereon.

14. The officers of the Supreme Court of Appeals, shall be appointed by said court, or, by the judges thereof in vacation. Their duties, compensation, and tenure of office, shall be prescribed by law.

15. The voters of each county, in which a circuit court is held, shall elect a clerk of said court, and an attorney for the State. The term of office of the clerk shall be eight years, and that of the attorney for the State, four years. The duties and compensation of these officers, and the mode of removing them from office, shall be prescribed by law; and when a vacancy shall occur in said offices, the judge of the court held in the county when it occurs, shall appoint a clerk, or attorney for the State, (as the case may be) pro tempore, who shall discharge the duties of the office until the vacancy is filled. In any case, or matter arising, in respect to which either the said clerk, or attorney for the State, shall be so situated as to make it improper for him to act as such, the said court shall appoint a suitable person to act in his place.

16. At every election of a governor, an attorney general shall be elected by the voters of the State for the term of four years. He shall be commissioned by the governor, shall perform such duties and receive such compensation as may be prescribed by law, and be removable in the same manner prescribed for the removal of judges.

17. Judges, and all other officers whether elected or appointed, shall continue to discharge the duties of their respective offices after their terms of office have expired, until their successors are qualified.

18. Justices of the peace shall only have jurisdiction of actions of debt, debtinue and trover, and then only where the amount sued for does not exceed fifty dollars, exclusive of interest and costs. They shall be conservators of the peace in their respective counties, have authority to take relinquishments of dower, acknowledgments of deeds and other writings, administer oaths and discharge all other duties appertaining to their office.

JAMES H. BROWN, Chairman.


MR. LAMB. Mr. President. If there is nothing further for the Convention to consider, the subject under consideration at the time of adjournment last evening was the motion of the gentleman from Wood to strike out of the second paragraph of the twelfth section of the report of the Committee on the Legislative Department the words "any salaried officer of a banking corporation or company." It is not necessary I suppose to make a motion to call that up.

THE PRESIDENT. That was the motion before the Convention. The question is on striking out.

MR. LAMB. Mr. President, I have already indicated my views in regard to that matter. I think there is no impropriety in suffering the words to remain. When our houses are on fire, it is very proper for cashiers and bank officers, and all of them to turn out and put out the fire; but in ordinary cases they had better attend to their own business.

MR. BATTELLE. Mr. President, I should have preferred to say what I have to say on this particular clause upon the clause that was stricken out last night but that, possibly, propriety would call upon me at that time to be silent. I believe I will say, however, sir, that I am most heartily in favor of striking out both clauses; and the reasons in reference to one of them were so very forcibly given last night that I need not, perhaps, repeat them this morning. It may be very likely, Mr. President, that in the course of things I should never visit your dwelling or enjoy your hospitality, and there need necessarily be no feeling in the case in that event one way or the other. But I should feel that there was occasion of offence were you, on account of no offence, to get up and proclaim before the world that I never should go to your dwelling. I do not believe in this principle of proscription so applied (and so I regard it) to either class of the persons mentioned here. For one, let me say that it is more than likely that I never shall be a candidate for any political office of any sort whatever. I never was; there is no probability that I ever shall be. And especially would it be an occasion of offence, or at least would it operate proscriptively if after my neighbor had precluded me forever from entering his dwelling he should give as a reason for that preclusion that so elevated and pure was my character that it would be injurious for me to go to see him! I wish to say in reference to this form of exclusion that I suppose gentlemen are aware that in more than (perhaps) half the States of this Union no such restriction exists. I have yet to learn that it operates to the injury that was indicated here last evening. The simple point is in this: that as to the question of the propriety of individuals in the classes here named entering or becoming holders of office, as to the proper constitution of the country saying that they shall not, for very nearly analogous reasons I am opposed -

THE PRESIDENT (interrupting). Will the gentleman give way one moment. The Chair would not wish in any way to restrict the gentleman but will call to his attention a point of order and remark that at some time his purpose could be effected by way of explanation; some gentleman move that he be allowed to explain his vote, which would allow him to pass over the whole ground.

MR. BATTELLE. I accept the suggestion of the Chair, and am aware that my remarks do not apply in strictness to the clause now under consideration though I was on the eve of passing to it.

MR. LAMB. It is obviously proper the gentleman should be allowed to proceed, by unanimous consent of the Convention.

MR. BATTELLE. I have said on that point all I wish to say, except perhaps this additional remark that I wish here now, while entertaining the views I do, to disclaim attributing, either directly or indirectly any but the purest and highest motives to the gentlemen who are disposed to take a different view from what I do. And I wish further to remark in reference to the particular clause now under consideration that I am opposed to this restriction very much on the same ground as my opposition rests to the other restriction. Salaried officers of banking companies are citizens of this Commonwealth. As far as I know, they are honorable citizens and I must hear some reason advanced more than I have yet heard indicated why they are to be restricted from the privilege of holding office should their neighbors see fit to elect them to that office. If it be so, sir, that there are instrumentalities employed by salaried officers of banks - if there are corrupt agencies employed by them which render their membership in either house of the legislature dangerous to the liberties of the people - it seems to me that that is a reason why we should abolish banks altogether; do away with such corrupt institutions. But until I hear some further reasons than have yet been indicated why this restriction should be retained, I must favor its being stricken out and the people themselves left the liberty of choice in reference to this matter. If they ask a bank officer to represent them in the legislature of Virginia, they will say so, and if they do not, they will say so.

MR. BROWN of Kanawha. It seems to me that gentlemen in their opposition to this clause standing in this Constitution predicate it on personal considerations rather than high public policy; and I have been astonished to find that gentlemen seem to wholly fail to discriminate between any personal considerations of any individuals or class of individuals and the high grounds of public policy upon which in framing a constitution it ought to be based. Now, sir, the gentleman tells us that he fails to see any reason why any officer who is a highly honorable and intelligent gentleman, who is receiving a stipulated salary at the hands of a corporation should not be a member of the legislature that is to pass on laws that is to give to that identical corporation peculiar privileges and which is over all the rest of the community; and that corporation, too, one that has in its hands and is emphatically the money power of the State; which wields a power that neither free government nor monarchies have ever yet been able successfully to resist. Now, sir, it is known as a fact in this State that let banks combine with their officers and influence, and you cannot counteract anything they may attempt because of the power that they wield all over the community.

MR. PAXTON. I would inquire if the banks could not wield that influence without having their officers in the halls of legislation, just as well as by having them there?

MR. BROWN of Kanawha. They can wield that influence, unequivocally and unquestionably; and they do do it, but not so effectually as if you will give the officer who is engaging and exercising the influence the right to cast a vote. Now the whole tendency is to place the man who is thus situated in a position in which he is not free from bias. In other words, in the language of the law, he is "not a competent witness." Why, sir, upon a matter of general policy, why would you exclude a witness who comes before you the most worthy and honorable man in your community who offered to testify in a matter involving $10.20 between two of his neighbors and who you prove is directly interested to the amount of one cent? Why, sir, if you were to bring George Washington or Nathaniel Macon, a law that has been in force for a thousand years would exclude him from testifying in a case of twenty-five cents if he is interested to the amount of one cent. Would it influence either of the men to misstate the truth? Not at all. But it is from considerations of public policy that you cannot discriminate in this manner and if you once open the door to interested parties to give evidence in every case you cannot tell how long you will have men there that will be honest. It is a matter of public policy and not in derogation of any particular individual. I have as high regard for bank officers as any gentlemen. I have had a good deal of dealing with them and found them the most discreet, intelligent and reliable men. But, at the same time they are not better than other men in other respects. They are men of like passions with ourselves and all mankind and liable to be influenced, and their minds are ever open in the direction of the institutions and interests over which they preside; and unless they are more than mortal they cannot free themselves entirely from that bias. Why will you prevent any particular party who is peculiarly interested in any particular way from occupying a position between the man and community in which his bias is to be directed in one particular way? That is the very object: to have parties that are entirely free from bias. And, sir, it is with that view that I opposed the question on yesterday. It seems to me the gentleman in the remarks he submitted this morning delivered them out of order. I suppose I may be allowed to notice this because it was a reply to my remarks of yesterday. The whole argument is predicated on the fact that his mind is influenced by personal or private considerations not to a man but to a class of individuals; that it is intended as a discrimination against them from unworthy causes; that it wholly fails to rise -

MR. BATTELLE. I especially disclaimed any such intention this morning by the remarks I made. I especially, in terms, disclaimed the desire to impute unworthy motives to any gentleman; and I wish to say, further, with reference to this particular branch of the subject now under consideration, so far am I from having any personal interest in the matter that I never had a cent of bank stock in my life and the probabilities are that I never will. I wish the gentleman to accept as true the statement that my course on this question is governed simply and wholly by what I regard a most sacred and most inestimable privilege, one that is fundamental to the very existence of popular rights.

MR. BROWN of Kanawha. I do not question that in the slightest degree; but the objection I made is that the fundamental principle is that this is a discrimination between citizens and not predicated on public policy; that our object is not to injure or intercept or disfranchise citizens in the slightest degree; but it is from considerations that grow out of the very character and situation the parties occupy. That is the view of the gentleman. It seems to me we can arrive at no other conclusion from the fact that he indicates it by the example of the gentleman who does not invite him to his house; and, first, that he is informed he cannot be received as a visitor because of the presumption that he is not worthy to be received, and, second, by the presumption that he is too high and honorable and too holy to be received; and that in either event it is a discrimination to the prejudice of the party. Now, that is not the object at all. The object is a discrimination for the security of the people, in which these very parties are themselves equally interested with all the rest; because I hold that which guarantees the liberties of the people secures every man whether he be minister or any other officer. There is no distinction. I had not supposed that any gentleman would ever - I profess myself incapable of supposing, that any man would be actuated by a motive that in our course here we were influenced by any personal considerations either for or against any person. I could not bring my mind to the conception of it. I stand here to represent the people whose interests I regard as at stake and to discharge my duty for their welfare and to discharge my duty in laying the foundations of a government; and I intend to do that, sir, fearlessly, conscientiously, firmly and boldly at all hazards, uninfluenced and unbiased by either threats or favors one way or the other. Entertaining the views I do, I must confess that if my father himself were in the ministry I would stand here and vote for that restriction, for the very reason that it was no injury or disrespect to him but was laying strong the foundations of popular liberty and he with the rest would participate in the glorious blessing thus secured. If there is no reason that would warrant us to discriminate against salaried officers, officers of a particular class of corporations, which, unlike all other corporations, banking and monied corporations, wield the power of the State - if there is no reason for discriminating against them and excluding them from the legislative halls, which legislature is to secure to them the blessings they enjoy - why do you exclude, or propose to exclude, persons holding an office of profit under the State or the United States? I can see no reason for excluding them as potent as the influence of a salaried officer of a corporation under these circumstances. Why will you propose to exclude attorneys for the State from either branch of the legislature? Because they represent the government in the prosecution of violations of the laws of the land, with nothing on earth to bias them one way or the other in the action of the government. No such motive can arise to them as would in the case of these gentlemen who are to exercise peculiar privileges granted to them by this very legislature; and which when they enter in every contest with the people, having the money power at their back its officers become utterly irresistible and can ride over the people rough-shod. But, sir, the history of the country shows, in the case of the Bank of the United States, and other moneyed corporations, how powerful they were to control national affairs whenever they choose to enter the lists in the elections. You may exhibit it on a smaller scale; but it is no less effectual in the accomplishment of its ends whenever you hold out inducements to undertake it. We have seen the dissolution of this Union because by our laws heretofore they have been excluded. The only influences that have been exerted by the banks in this Commonwealth have been that indirect influence alluded to by the gentleman from Ohio, against which there is no remedy but in the integrity and resolution of the people. I do not wish to break down that security. I maintain that striking out this restriction has a tendency to break it down. It is, sir, weakening the pillars of the republican fabric and exposing the people who must choose between the few candidates who present themselves, and hazard all things in the cast of the die. I hope, therefore, that this restriction will not be stricken out.

MR. VAN WINKLE. Mr. President, I think the gentleman who has just taken his seat is very far behind the age; that if we follow his lead we will be going back gradually to all the old fogy principles that the last fifty years has been employed in getting rid of. The idea that grown up men with all their faculties about them and who, unlike puppies, were born with their eyes open, are under the necessity of going to the legislature to protect them against every little thing that may arise in the course of their life and experience! Why, sir, in old times there was a law on the statute books of England prescribing how long people would wear their shoes; that they should not wear long shoes; that they not have but so many dishes on their tables at dinner - and all this class of laws called "sumptuary" - all proceeding on the assumption that people did not know their own business. Now, sir, before any attempt is made to exclude any class of citizens from the exercise of these fundamental rights sacred to all the citizens of the State, there ought to be extraordinarily strong and stringent reasons for doing it. You are proposing nothing less than to deprive a class of citizens of a right which by a provision already adopted here is guaranteed to every citizen of the Commonwealth. Now, sir, if an exception is to be made of this class, something more than the mere apprehension that they may do something wrong ought to be shown. It ought to be shown that they will necessarily do wrong before you can justify it. We are here to make a constitution in which, as I trust, the principles of free government, the principles of the equality of all citizens before the laws, ought to be maintained. And here on this ground, of common right and equality, this argument of "high public policy" - which may mean anything or mean nothing as you please - may be applied to everything whatever - is to come up and stand between a very respectable class of citizens and a right that is sacred to all others! Now, sir, there is a principle in this thing, a principle that I trust that this Convention by votes given here, has already shown that they are not inclined to sustain. The gentleman says that the banks have already done such things! I have been a pretty attentive observer of the history of this State since I have been in it, and I have had occasion to know pretty much what the banks were doing, and yet my recollection fails to serve me with an instance where they have ever attempted even to exercise any such over reaching of legislation. I remember that there was in Richmond a president of a bank by the name of Brockenbrough; and I remember he cut a very wide swarth and exercised considerable influence in legislation. But I also remember that he was a very strong party man and that a part of his exertion was to run these northwestern banks. I remember that distinctly; to deprive these northwestern banks of their privileges and equal rights. And I think, sir, at that time the citizens of this section of the state had they appreciated what was about being done, would have been glad to have been represented there and to have stood up for their banks against these eastern banks. And that is where this whole talk about the danger of banks has come from. It is an attempt to aggrandize the two or three banks in the city of Richmond that has given any color to remarks of this kind. And I will tell you how he was stopped. Two successive sessions, the delegates from my county had to fight this battle in defense of these northwestern banks; and the way they stopped his proceedings both sessions was to offer a resolution that a committee of investigation on the affairs of the Bank of Virginia be appointed! Afterwards it was discovered that there had been a considerable defalcation in the State Bank of Virginia. Now, sir, there was a time when bank officers would have been very serviceable to this part of the State. An attempt was made to ruin, or to render much less useful to the community, the banks in this part of the State.

Now, sir, I am reminded by a proposition I offered yesterday that there may be a much worse class in the community than bank officers - a class, sir, which I know has exercised a very evil and unfavorable influence on the legislation of the State. I mean the speculators. When this law in reference to the sale of land, which it is attempted to renew by the proposition I have submitted here - and which we attempted to renew in the convention of 1850 - but when those laws were in operation, when they had got to be well understood that they gave a good title, lands were bringing fair prices and titles were becoming settled. In the opinion of every intelligent citizen it was thought we had then what we wanted; we were getting our land titles settled, the lack of which had hindered immigration and the growth of the country through the operations of that iniquitious land office. I will show it is iniquitious when that question comes up here. But, sir, if you want to exclude a class, there is evidence that you had better try the land speculators - a far more formidable and injurious body than those that are hit at in this provision. But, sir, unless you will show me that land speculators will necessarily exercise their influence contrary to the interests of the people - that it is not simply because bad men could have got into that business but because there is something in the business itself which necessarily works to the injury of the people. I will not vote to cut off even them. The people will get their eyes open after a while. They will see what is going on. They will know whom to elect to the legislature. Sir, it is the bulwark and defense of our free institutions that these who represent us in the legislative bodies must come back to the people for indorsement; and if their conduct is inimical to the people they will perceive it and turn them out.

"Public policy!" What is Mr. Stuart's argument for taking away the right of voting from one-half the citizens of the Commonwealth? Public policy, and nothing else. Public policy. The prosperity of the state would be built up sooner by these outrageous abominable discriminations between citizens! That is the argument, sir, that Mr. Stuart recently made on the floor of the Richmond convention. I am surprised that it should be introduced here. And here we have the gentleman giving us as' an illustration the other provisions of this same section excluding state officers, those who are in the pay of the State from the legislature - as if there were anything at all analogous in the two cases. Sir, we have a section already passed providing that the legislature, the executive and the judiciary shall be kept separate. And they may, I suppose be excluded under that, and are. If they are really pertaining to the executive department of the State, they cannot sit in the legislature. And why, sir? We are bound to carry on the principle embodied in that article that these departments shall be kept separate and give each branch the power to protect itself against the others. We forbid encroachments by one branch against another. We have said - and cannot alter, I believe - that no person belonging to one of these departments of government should hold any office under another; and that would be sufficient, I apprehend to exclude these salaried officers, but for greater safety it is put in here. So the presidents of the United States have a veto power; and the true interpretation of that is that they might protect their department against encroachment from the others. That may be justified on broad and general principles of government on this very principle of keeping separate the different departments of government. We simply say to each department, confine yourself to your proper functions and do not meddle with those of the others. There is a constant tendency to do so, and we must provide against it.

I trust, Mr. President, that we, in framing this Constitution are to be governed by principle; that we are not constantly to be seeking out exceptional provisions; because if we do, we may fill the Constitution with them; we may point out everywheres where somebody can do mischief. If by passing a law and making a regulation you could prevent crime and sin and all that sort of thing, go ahead and do it; but you cannot. You cannot by any regulation you can make prevent bad men getting into the departments of your government. You cannot by making laws stop the commission of crime. You can punish it and to a certain extent deter others; but you cannot prevent it. Nor can you guard against every apprehended abuse of these powers. Our grand remedy and safeguard is that public servants must come back to the people for endorsement and that at short and stated periods. We have no officers for life, and we want none. They must give an account of their stewardship. And then, we the constituents, the people, being grown up men, with all our faculties about us, capable of discriminating between men and knowing when a man does right and when he does wrong, are capable of saying whether we will send that man back or not. Now I would ask the utility of such a thing? What is it you guard against? We have, sir, in the whole of this new State probably some six banks or branches. Say we had more - suppose we had a dozen, which we have not; and suppose (which will never happen in the world) that each one of these banks should succeed in sending one man to the legislature; and when he gets there, what does he do? Why, sir, they do not make a majority; they do not begin to; and what power can they exercise? Are we afraid of these men, whom the gentleman admits to be among our best and worthiest citizens, will go there and resort to the worst crime in the category in reference to the institutions, of the State, to the crime of bribery? Now, sir, that is the imputation. And now supposing that each of the dozen banks had sent its officer, do gentlemen suppose from what they know of any class of their fellow citizens, not this which has been represented as amongst the best, but if you have sent twelve men from any profession whatever to the legislature, that they would get to be that reckless that they would descend to the crime of bribery. Why, sir, here we are protecting ourselves against an army of straw men, setting up defences, building fortifications with walls nine feet thick and as many high, planting cannon - Dahlgren guns - and all that sort of thing - and here comes a man of straw to take us! Even allow that these men should be corrupt - allow that they will be necessarily corrupt - and the whole thing sinks into insignificance, because there is but one or two of them there or likely to be.

Again, as the gentleman from Ohio (Mr. Paxton) stated, this influence, if it is to be influenced by the banks - if an improper influence is to be exercised, it does not need that they should be represented in the legislature. If the members of the legislature are open to bribery, it can be, and will be, done behind the door. We will never see the money pass. And, therefore, as I have already said, we are providing against an evil that can never have any magnitude, not one that is worthy the deliberations of this assembly for twenty minutes. Take all its possible consequences, sir, and I say it is hardly worth providing against. Nor would this be an effectual provision against it, for the bribery and corruption would still go on if there was not a bank officer in the legislature. And I do not know, sir, but if the Convention failed to strike this out, they might impose on me a very disagreeable necessity. I might be restrained, if this clause is retained, to move the expulsion of the gentleman on my left (referring to Mr. Lamb, of the Northwestern Bank), because I think if bank officers are not good enough to be members of the legislature, they are not good enough to be members of this body.

Chair occupied by Mr. Hall of Marion.

MR. STEVENSON of Wood. I wish to make a very few remarks, sir, in opposition (?) to striking out these few words. It seems to me that one objection to this kind of provision, to inserting them in the constitution, is that you make a discrimination against a particular class. While the same discrimination it is urged, on the score of public policy, should be made against many other classes, and could be with the same kind of argument. Now, sir, we have insurance companies - and should have more of them - who have special interests to attend to; who have special privileges guaranteed to them. Why not exclude the salaried officers of these companies? Are they not just as likely to effect their purposes in the legislature as the others? We have railroad officers; we have railroad companies, and we will have more of them in the State. These men - these companies - have special privileges guaranteed to them; and they can exert as much and more influence, probably, than any other class of men in the legislature. Now, sir, if we are to discriminate against the officers of a particular institution, why not discriminate against all of these likely to effect their purposes in the same way? So I might go on with any other companies that are incorporated or that have special privileges within the limits of the State; but it does not stop there. The same line of argument will apply to manufacturing companies.

MR. CARSKADON. I think this does not cover any incorporation.

Several members expressed dissent.

MR. STEVENSON of Wood. It applies exclusively to salaried officers of corporations or private banks. It would apply with just as much force to large manufacturing companies; because I take it for granted that these banks, incorporated companies, are instituted for a public benefit, because the legislature have thought they were a public necessity. I take it for granted that is one condition of their existence; and public or private manufactures are just as essential to the public welfare; and you might with just as much reason exclude a man who has a large capital in a private manufacturing enterprise as to exclude these men, because they can enter the legislature with their money, and friends and they can carry through special laws for their special protection just as easily as the other classes of men. And so, sir, I could apply the same argument to almost any class of men in the State or any part of the State, with the same force at least as far as these men were capable of wielding an influence over the law making power.

But, sir, there is another consideration, and it seems to me it would be safe if there were no other, that you cannot make a provision of that kind operative. It would be a dead letter. Now, sir, if a man was a salaried officer in any of these institutions specified here and knew he would not be eligible if elected, it is very easy for him to resign and carry his measures, and go back and be reinstated in his position. I think, sir, taking every view of the case, that position should be stricken out.

MR. PARKER. I certainly, Mr. President, agree with the gentleman last up. The great principle, as I understand, Mr. President, which lies at the bottom is that all that are qualified voters in this country (with some few exceptions, for good reasons) shall be eligible to office. That is the general principle that runs through the whole country; that is, that all those that are qualified to exercise the franchise shall also be qualified to receive the office that that franchise can bestow. There are instances where it requires a certain length of residence and acquaintance with the peculiar locality or system of laws, as it does in this case. With that view a residence in this State of some five years for governor, for judges and for some other officers is required. But as a general thing the qualifications, and the right to receive an office is co- extensive with the right of voting. Now, our new State, as it strikes me, in looking forward, we are to hope at least, that it is to have developed in it the various large interests that are encouraged in other prosperous States around us. The great farming interest, the mining interest, the manufacturing interest, the railroad interest: all these great interests when they are developed and come up in prosperity, are, I hope and trust, to build us up into a great State. Banks are to come up as one of them. In every State in prosperity and magnitude banks come up hand in hand with the others, in fact the hand-maid of every other great interest. They are inseparable. Well, now, all these great interests must have their agents, their employes. Are we to say that because a man happens to be an employee or agent of one of these different institutions, they shall all be forever ineligible, disqualified to fill any office in the legislature - have any participation whatever in making the laws? That is, as members of the legislature? Well, now, it seems to me that if we begin to exclude an agent of one of these branches of business, we cannot tell where to stop. Certainly you take the banking system throughout the country and the gentlemen connected with it are as intelligent as any you will find; no man stands higher in a moral point of view than the gentlemen connected with banks. Well, now, I am unable to see any reason why we should exclude the agents or employees of banks and at the same time retain the agents and employees of other branches of the industry of the State. They have something to do with money, it is objected; but if we are to have a people in our new State that are controlled by bribery, and controlled by some five or six banks - if I believed that was all we have in the State, why then I think we had better stop. If some half dozen banks are going to take possession of the legislature representing the body of the people - if that is the character of our people, then I think we had better stop, because if the agents of the banks do not carry them away somebody else will. It seems to me therefore, we ought not to put a disability of this kind on any class of persons, unless in cases where a person is tainted with crime or has been unfaithful in any public office. The next clause here is where he has not paid up. I say exclude him until he does pay up. If he holds a public trust let him be true to it. If he defaults, make him pay before we put him in again. I shall, therefore, feel constrained, as I did yesterday in reference to the clause which disqualified another class of our fellow citizens, to vote against this. I hold unless they are tainted with crime, whoever is a qualified voter, if his business is honest and useful, let him stand on an equal footing with us all. The people will take care of him.

MR. POMEROY. Mr. President, I will offer a very few remarks. I concur very fully in what has been said by the gentlemen that have preceded me in this subject. The reason that I am in favor of striking this out is that I am not in favor of proscribing any one class of our citizens. Besides, as has been very well remarked, any provision that is not practical in its workings is no use and ought never to be in the Constitution. You could not make this practical in its workings. It would do no good whatever. The monied influence of the banks would still be exercised - if they do exercise this pernicious influence, to which allusion has been made. But, in endeavoring to form a constitution for the new State, I think it is wise to look at the constitutions of the States already in existence; and how many of these have any provision of this kind? I have not had time to look over them all, but here I see what is the provision in the State of Pennsylvania:

"No member of the legislature shall receive any civil appointment within the State or to the senate of the United States from the governor, the governor and senate, or from the legislature during the term for which he shall have been elected; and all such appointments, and all votes given for any such member or officer or appointment shall be void, etc."

But there is no provision whatever of the kind that we propose here. The great State of New York has very nearly the same provision:

"No senator or representative shall during the time for which he shall have been elected be appointed to any civil office under this Commonwealth which shall have been created or the emolument of which shall have been increased during such time; and no member of Congress or other person holding such office, except an attorney-at-law, shall be a member of either house during his continuance in such office."

Well, now, it is said that great evils will arise. Why have they not arisen here? Why have these states gone on in their onward career of prosperity? Why have they flourished so under the legislation they have had? And why, when amending their constitutions a few years ago, did they not make this provision? There is not I believe a single state whose constitution contains a provision of this kind except the old State of Virginia. And are we so tenacious to follow the example of that state as to put in this provision? Look at the light the people have received on this subject from year to year. I find in Maryland they do not put in any provision of this kind. They make no such provision. They do not exclude certain classes. Here is all that they say:

"No person shall be a senator or representative who at the time of his election is not a citizen of the United States, nor any one who has not been for one year next preceding his election an inhabitant of the county or district whence he may be chosen. Senators and representatives shall be at least twenty-one years of age."

No restriction put upon them at all. Whenever they are qualified voters, the people have the privilege of voting for them. They are eligible to office as soon as they become voters. What influence have these banks ever exerted in any state? Look at Rhode Island, one of the most prosperous states in the Union. It is a remarkable fact that the city of Providence has somewhere between eighty and ninety banks at the present time. They have more banks than they have school houses. Yet there is no clause in their constitution preventing these men from going into the legislature at all. We never heard of any evil resulting from it. I do not suppose many of these men will be in our legislature; and if they do, they are just as safe men as any other class of men. Besides, will not the people correct all these evils? If a man is unfaithful will the people return him? Will they do it if they do not believe he is a trustworthy man? If their confidence is misplaced, they can rectify it. As has been well said, there are many institutions as dangerous as banking institutions. I go against this principle of excluding certain persons, or saying that they must bear certain burthens and must be excluded from certain privileges that belong to other men. I believe in making it free to the people, if you want to make this a prosperous state. Let the people say who their public servants shall be. Let them by their own reflection on the subject decide who are the proper men to represent them in the halls of legislation. I am not going to speak of the other clause that was stricken out; but it is salaried officers of banks that we are now striking. I am decidedly in favor of striking out upon the great principle that we have no right to exclude these men any more than any other class. Besides, if you will examine every constitution of the thirty-four states there is no provision except in our constitution of Virginia like that proposed here. Well, does the history of Virginia show that she has outstripped all the other states in a career of prosperity? Has her legislation been more pure than that of any other legislature under the canopy of heaven? If so, I wonder why it is that there should be such a general desire that Richmond should be burned and salt sown on the ground where it stands? A desire to obliterate the city that has been so pure! I will venture to say it was not the banks that made the impurity; neither money banks nor clay banks. It may have been impure men made out of clay!

MR. DERING. I do not rise, sir, with the expectation of adding any arguments to the side of the question which I shall take, or addressing any considerations that will be as cogent and pertinent to the side of the question which I shall advocate as the gentleman from Kanawha has done. I merely rise, to say, sir, that I shall oppose this amendment. This whole clause, sir, commends itself to my favorable consideration and I should have been happy had it been the pleasure of the Convention to retain it in its original form. But, sir, I bow with cheerfulness to the decision of the question in reference to striking out the first clause. But, sir, lest they should think I was partial and that I desire to admit the salaried officers of banking institutions and to exclude the clergy from the legislature, I desire to say that I wish to see the salaried officers of banking institutions also excluded from the legislatures of our State. Yesterday evening by my vote I endeavored to protect the cloth from the contaminating influences of the legislature. This morning by my vote I desire to protect the legislature from the monied influences of the country. So far as bank officers are concerned, as a class, there are no men that are more respectable or stand higher in the community for integrity than the banking officers of the country. But, sir, money is power; and if you connect the monied power of the country with the legislative power of the country you have a great power that will override everything else and make everything else subservient to it. I am opposed to this alliance of the banking power and the legislative power of the country. I go for keeping them separate and distinct; and am opposed to the striking out of this clause. Why, sir, the gentleman from Kanawha alluded to the United States Bank and the influence it exerted and the excitement that it produced throughout the whole country; and the old hero of New Orleans, sir, with a determination and a will that was decisive to down this monster, as he termed it, that was controlling the political destinies of this great country. Sir, if you admit that doctrine this same monied influence within the states will control the political destinies of the states if you will bring the principals into conjunction with the legislature. By admitting salaried officers of the banks to be members of your legislature, you make them accessible to that legislature, you make them a part of it; and it is natural that they should legislate for the benefit of their particular institutions. It is but natural, sir, that they should throw their influence and their votes to protect and maintain the interests of the particular institutions which they represent. They will, sir, in their action conform to the interests of their banks and not to the interests of the community. The banks, sir, created by legislation, are the creatures of law and they ought to be held subject to law; and I would have no influences in the legislative bodies of the country that would interfere with that subordination to law which they should always be kept in. Sir, I protest this morning against the conjunction of these two powers - against this unholy alliance! I protest against it, sir, in the name of the people! I say let the banks move on in their spheres and be subject to the legislative powers of the country, and let the people control their legislature and keep their banks within a proper sphere. Make such enactments as will keep them healthy, protect their monied interests, as it is the duty of the legislature to do and as they will do should they be left untrammeled by the monied interests of the country. Why, sir, suppose our half dozen banks in this State were to endeavor to elect the governor in this commonwealth. Let that governor be favorable to banking institutions; let a great question arise in reference to banks and of the two candidates let one take the side of the banks, the other in opposition, and, sir, which will be elected? You bring a half dozen banks into the field, with all the monied power and influence and they will control, very likely the election of governor. This only would limit the power of money. Give me money enough and I will rule the world. Give these institutions the control of legislation, and they will be able to subject to their influence, and they will control the matter of banks and give it such direction as these bank officers may desire.

I, sir, did not rise for the purpose of making a speech but only of showing that I am an advocate for this whole clause as it stands, and particularly for the third clause.

I shall vote against the amendment.

MR. BATTELLE. I wish to say again in reference to myself that I not only never owned any bank stock but it is almost absolutely certain that I never shall. I never borrowed any money of them; I do not owe them anything and they do not owe me anything. That last part, however, I am a little sorry about. And let me say in reference to my friend from Monongalia that if banks are corrupt let us clear them out; and I am free to say here, for one, that if when the time comes you are opposed to putting on any restrictions in reference to their right of suspension of specie payment, in reference to any question of that sort, if they be needed, additional guarantees, you will find me on hand all the time to vote for them. The question before us, however, is a different one. My opposition to the clause which it is now proposed be stricken out, I will not say is a matter of "high" policy; it is deeper than that. It is with me a matter of high principle; and I intend to go where my principle leads me all the time; and it is the only interest I have in this. I am opposed to these class restrictions; to putting into your fundamental law any provision that will operate to the exclusion of gentlemen who by the concession of everybody are high-minded and honorable men in all the business and social relations of life, having, of course, sir, their frailties as individuals that pertain to us all. But if we are to follow out this principle, why not carry it to its logical conclusion? Why not prohibit the people from electing railroad officers? Why, sir, you have a great railroad which has been represented as the artery through which flows the life-blood of our new State. Why not lay restrictions on them? But dropping the subject of mere corporations, why not restrict all the classes of the community? Here is the farming interest, the fundamental interest in this State, is now and destined so to be. Nearly all the legislation you enact has direct reference to the farming community. It might combine together so as to prohibit, or lessen or minify taxation to such an extent as to bring the wheels of your government to a stop. Why, I say this in reference to the merchants, who according to the credit system that is universally diffused all through the State - the merchants of the country hold the destiny of the people in their hands. Why not say in your fundamental law here that merchants shall not be voted for to represent the people. But we need not stop there, sir. The gentleman on my left remarks "ledger influence." We all know what that means. It is a potential power in the administration and councils of the nation. There is no class of our citizens, sir, against whom it is popular to join in clamor as our fellow citizens of the legal profession, who wield a most potent influence in the destinies of any community in which they reside. I say, sir, it is popular to join in clamor against lawyers; and I am glad of an opportunity here in my place in this body of saying that, for one, from my acquaintance with these gentlemen, I am prepared to say that it is, as a general rule, a very idle clamor, and unworthy of consideration of intelligent gentlemen. We all know, sir, that that profession embraces much learning and intelligence and integrity and worth in our community. And yet there is nothing more popular than to join in denunciation of the legal profession. But, aside from all this, we do know it to be a fact that these gentlemen do wield and can wield a most potent influence in the councils of our State in our legislature. No measure of public policy could pass if the gentlemen of the legal profession saw fit to combine against it, and almost any other measure could pass were they corrupt enough to combine for its passage. Now, because that is a fact - and it cannot be denied - shall we put it in our fundamental law that no lawyer shall be voted for. Shall we yield to what we all conceive to be a mere idle, futile clamor?

And so, by the way, sir, you might go through with all interests and all classes, and, by the way, there would be nobody to represent us in the legislature, because some one of these classes, or the classes all together, might combine to do wrong; and the exclusion of one after another would in the end exhaust the whole material from which representation was to be had.

Now, as I said before, this is not a matter of policy "high" or low, but it is a matter of principle; and so long as I am entrusted with position here, I intend to follow my principle wherever it leads me; and it leads me to this result (as I announced yesterday) of leaving the selection of men to represent them to the people themselves, regarding the right, as I do, as fundamental in the structure of our civil liberties, to select their own public servants and their own public agents. If they approve of this man or that, they will choose him; but if he does not suit their purpose, they will not choose him, and they will act wisely and justly. Let me say, sir, that this is no mere demagoguist sentiment with me. The experience and reflection of months and years of my life lead me - and even the events in the midst of which we are groping our way up to the light lead me - to have an abiding and steadfast confidence in the integrity of the masses of our community in this regard. In our own western Virginia the whole people have led the leaders in this whole movement for loyalty to the integrity of the Union. So long as that is the case, I am willing to abide with them.

MR. HARRISON. Seems to me, sir, the question to be decided upon the motion before us resolves itself into this: How far ought we to go in forming this Constitution, in restraining the natural rights of the people? If I correctly understand the views of gentleman, who has just taken his seat, it is that he has confidence in the people; that if the exercise of all these rights which pertain to them shall be left to themselves they will do it right all the time. It seems to me, sir, if that principle is carried to this extent that we might as well do without any constitution at all; that you will eventually bring us to that thing, because if they will do right all the time there is no need of law to restrain them. But, sir, the remarks of the gentleman from Wood in reference to the land speculators illustrates the principle remarkably well in this. He finds it necessary by experience of the past that some legislation should be had by which the powers and the evils arising from land speculation should be abridged or prevented. Well, now, have not the people for the last seventy years had that power in their hands? Have not they had the right to send such men to the legislature as would abolish the laws that have been injurious to us and they have not exercised it? It has become so deleterious to public interests that gentlemen now think it is necessary for this Convention to interfere and protect the people against this class of persons against whom they have been able to protect themselves. There was another proposition, which has been voted upon already by this house, which seems to me also illustrates the necessity of protecting the people against their own indiscretions. Now, while I have great confidence in the judgment of the people, yet I do not believe that they are not liable to err; that they may not be led away by their passions or prejudices. Why, sir, we voted that a pauper should not have the right to vote. Why? Simply because he has had the misfortune to be so poor he cannot support himself and family. Now, sir, he may have the brightest intellect in the land, the most excellent judgment; he may have served his country well for forty or fifty years; yet, sir, the improvidence of the man, some defect in his financial capacities, has reduced him so low the public has to support him, and that man is not allowed a vote simply on account of his misfortunes.

MR. BATTELLE. Mr. President, permit me to ask the gentleman a question: whether he does not see a reason in the case of a man whose very bread and meat - whose life - comes from the public treasury without rendering any adequate compensation therefor, as a beneficiary of the public funds - a reason for excluding such a person that does not pertain to a citizen who earns his own livelihood and contributes his share to the support of the government?

MR. HARRISON. I am inclined to think the banks live off the public as well as the pauper.

MR. VAN WINKLE. They had better come under the pauper clause then.

MR. HARRISON. I do not know much about banking operations, but I was using the illustration to show that there is a necessity for restraining the action of the people themselves. Now, as has been argued by the gentleman from Kanawha, prudential motives indicate to us that the powers of the banks became so great - their influence over the people - that it is impossible for the people alone to resist them, and it is necessary for us to throw some strong restrictions on their privileges and powers to protect the people against them. The people, .sir, is conceded - at least it has been laid down by some great politicians and statesmen that as money will control the world and it does happen somehow or other that banks, being monied institutions do acquire immense influence over the public mind - that by means of the debtor influence - the "ledger" influence - I am not prepared to say, because I am not sufficiently versed in their methods to know from what it does arise. I have always heard that in the legislature of Virginia there has always been complaint of the banks of Virginia; that they have always been endeavoring to limit the powers of the banks, to restrain their action, to restrain them to certain prescribed limits. Well, now, it is true that other corporations must also, perhaps, be considered as having great influence. In answer to that, when the influence of the railroad companies and insurance companies becomes so great as to be oppressive to the rights of the people, then it will be necessary to interfere by legislation to protect ourselves by constitutional provision. It does not happen so at this time. If said railroad interests come inconflict, as they generally do, one would serve to check the other; but the banking influence is always the same; and it is to protect the people against the influence and power of the banks that this provision is put in here, not that particular individuals or members of banking companies are not as upright and honest and capable as other men, but because the experience of the past indicates to us that the power of money is so great that the people are not able to protect themselves against it. It is necessary that provision should be made to this end in the fundamental provisions for government. Believing as I do that this influence has immense power - could have unlimited power - I think it is judicious and wise to put such a restriction in our Constitution.

MR. BROWN of Kanawha. Mr. President, the gentleman from Ohio has instanced several instances in which he seems to indicate a similar reason for the exclusion that would exist in this case. And they are specious; but I really think there is nothing in them. In his allusion to lawyers, he pays the bar a compliment. Well, sir, I shall not undertake to say whether they deserve it or not. I leave them to stand on their own merits, to rise or fall as they may. But that the same reason that would exclude bank officers would exclude the bar, I cannot agree. Now, sir, there is a very marked distinction. Whether the lawyers have the qualifications that are ascribed to them or not, wherever they are they are but a part and parcel of the people. They have no distinctive interest that is not in common with the masses. The distinction is not against bank officers to be excluded while others are admitted but it is bank officers who receive salaries at the time they are exercising the legislative function. Your lawyer is receiving no salary. He is but another individual pursuing his vocation in life just as any other man. There is no peculiar reason to come in his vocation that does not affect all the community that he could legislate for his own benefit to their prejudice, if that is the ground of the exclusion - no motive or inducement to bias him to the prejudice of the masses. His interests are homogeneous with them whether for weal or woe; but it is not the case with the bank officer who receives a salary. He exercises a function and franchise that is a peculiar gift by the legislative power to that corporation and it is a corporation to control the monied interests of the country - the currency of the land - which is the highest interest that controls the bread of every man. Your railroad, turnpike and internal improvement companies have nothing to do with controlling the masses of mankind. They but pursue the "even tenor of their way" - some of them a very rough one, "without money" and some of them "without price" - to make roads for the public good. They have no distinctive interest. They are not money making machines for profit. They are instituted and created for the purpose of the public good, and it is for its interest not theirs. But not so with a bank. A bank is so in the main, but is always governed by those who own and hold the stock for the private benefit of the private owners. The public only derives its incidental benefits as it controls the legalized currency. But we know the currency of a country controls everything in a country. It controls the returns of the farmer, the lawyer, the doctor and every other man, for who can buy his bread without this currency; and this currency comes through the banks. The individual can only get it from these banks by obtaining accommodations at their hands, and the individual or the corporation that controls this influence is almost omnipotent. Now if any gentleman who is a bank officer and desires to go to the legislature let him resign the office that controls the salary that can control his bread and free himself from the peculiar objection that is raised against him. This Constitution does not exclude him. It is not a discrimination against the officer, but against the influence that can hold and command his services against his better judgment and even bias it when he thinks it is right.

Well, sir, there is another gentleman - I believe from Hancock - who instanced by running comparison between Virginia and several other states that have not this provision in their constitutions; and he traces that comparison - I think rather an invidious one, with their prosperity and glory. But does he instance the facts to show that their legislation has not been corrupt, while insinuating that ours has been, and because this provision was in our constitution and was not in theirs, and might have the distinctive features he indicates have been the result of this. It does seem to me from some quarters in this Convention that is almost a mark of degradation, a word of opprobrium, for a man to say or feel that he is a Virginian, or allude to anything that is Virginian. Why, sir, to look to the lights and the past joys of our country it seems to me almost an offence. I must say it reminds me of the old proverb that it is a foul bird that always befouls its own nest. I intend nothing disrespectful; but I desire to say that that which is Virginian commends itself to my approval first and foremost, and I desire to know that it is not best before I repudiate it; and I say take the legislation of Virginia from the first house of burgesses down to the last legislature before the last vote calling the Convention, and it stands comparison with all the legislation of the land or of the world. I defy comparison with any country in the world to the prejudice of this commonwealth. I maintain that take our legislation and the men that have legislated, and all the glorious periods that have gone before in the history of this state, and no Virginian need ever blush by comparison with any state of this Union, or any other Richmond in the world. Then you bring no reproach to my mind when you say, this clause has been in our state constitution for years, compare it with as many as you choose. And I would say to the gentleman from Wood, when he brings up Senator Stuart and his argument, that to answer a question that has nothing to do with this, but an argument that if I remember right he has repeated several times - if he has not a higher regard for Senator Stuart than I have, he would never repeat it again. I wonder if the time has not been when he did not regard the views of Senator Stuart in this way?

MR. VAN WINKLE. Never! Never! I repudiated him in 1851.

MR. BROWN of Kanawha. I am glad to hear it.

MR. VAN WINKLE. I never voted for him and never would.

MR. BROWN of Kanawha. I am glad to hear this from the gentleman. He is with me still. I have never stood up for Senator Stuart; but there are principles of Virginia's - there are men in Virginia, whose name and reputation and advocacy of things stand high in my estimation and I am not to be at all bothered or frightened from the propriety and reason of this thing because Senator Stuart has advocated some measure that is foreign to our feelings and prejudices and opinions of principle or public policy. This principle and public policy, I maintain, require the preservation of this clause. It is not intended to discriminate against individuals but only against those holding a position or a salary at the hands of a corporation that has to ask aid of the body of which its employe is to be a member. And that is a very good reason; does not impute to that integrity than to other men; does not attempt to punish men for crimes they have never committed but only to secure the community against the dangers of temptation. We know that all men are liable to this. Why, sir, gentlemen seem to argue this question as though they were making a constitution for angels. I stand here to make a constitution for men who are in their very natures prone to do evil as the sparks to fly upward; and it is to guard and guarantee the public body that is to control the land against these things that I expect to secure that restriction in this body.

MR. VAN WINKLE. Mr. President, I feel I must claim the right to answer the gentleman so far as he has alluded to me personally especially to what my opinions may have been "out of doors" - which I took the liberty to correct at the time.

MR. BROWN of Kanawha. There was nothing taken to be offensive to the gentleman.

MR. VAN WINKLE. If I am the person who was alluded to as attempting to strike Virginia, the gentleman is entirely mistaken and the Convention will justify me. Why, Mr. President, did I not know -

MR. BROWN of Kanawha. I did not allude to the gentleman. I alluded to the gentleman from Hancock, and not that he said so but that it was an inference I drew from the argument which he made.

MR. VAN WINKLE. Let me set myself right, whoever the gentleman is that was alluded to, I know, sir, that no community of the same size, ancient or modern, produced so many great men in the same time as this commonwealth, no matter where it is. I would be the last man to attempt to injure her reputation. Sir, this is not the first time I have made this remark, but I have constantly made it on every occasion. No man has been prouder of his citizenship in Virginia than I have, although born elsewhere. But we are here for the purpose of setting up a government for ourselves. We have been complaining justly for years that these institutions of Virginia were not adapted to our case in this section of the commonwealth; that the other section has had the power to do what they please. And the gentlemen will remember that for myself that I expressly have relieved them from invidious imputations in regard to what we consider oppressive legislation. I have said that they had adopted their legislation to the own condition, as they naturally would; and their condition being different from ours, that legislation did not suit us.

But, now, sir, in reference to any of these particular provisions, I confess that this matter of excluding cashiers (if my friend Mr. Lamb was not included in the exclusion), I might think . very little consequence as to the mere fact that these gentlemen might be excluded. But, sir, it is because there is a principle involved in it that I have any great interest in the subject. If there was no principle I might think it a hardship to my friend on the side but would let it pass.. But when we are here in this early stage of our debates and when the question is one of principle when as that question of principle may be decided one way or the other it may govern our future action all through this Constitution it becomes even in this case a matter of lasting importance And so far, sir, am I to being hostile to Virginia; so far from attributing a disposition to waken popular rights to Virginia exclusively, I had the pleasure of reading here yesterday extracts from the writings of one of the very greatest men that Virginia has produced, (Jefferson) a man who has given a name to a large party in this country; for we have all heard of Jeffersonian Democrats, particularly; and I cite him here in favor of these very popular rights. And, sir, there is no one thing that we complain of as oppressive in all this legislation to which we have been subjected that the true friends of equality of citizenship and the rights of the citizen are disposed to contend for that they will not be justified in contending for by the writings, still extant, of Jefferson, and not only of him but of others who were his cotemporaries - Beverly Tucker and some others. Sir, there have always been differences of opinion in Virginia. In the convention we had Phillip Doddridge, and for a while Mr. Cook, who stood up for these popular rights, for the white basis of representation, at that time. If Virginia precedents are to be cited, if you give me time I will bring you as many precedents from distinguished Virginians in favor of the expansion of popular rights to the almost popular limits, as you can bring of Virginians against it. I do say, sir, that in reference to this subject of popular legislation in Virginia, we are rather going backwards. I think that cannot be contradicted. We have fallen upon evil times and we are seeing the results of it now in the position in which the commonwealth has placed herself. Why, sir, look back to the last four governors, Floyd, Wise, "Billy" Smith and John Letcher. Are these the distinguished men of Virginia to whom I am to bow down and yield my opinions? Not one of them, sir; not one of them! Not one of them has ever done anything that I know of in the course of his life that would lead me to consider him a great man at all upon a par with the elder fathers of the country. And it is they, and such as they, who have controlled the legislation of this state for many years past.

And, sir, I go back to where I started: if we are here for the purpose of reforming this constitution, of making a better constitution than the former one - that is the purpose, I believe for which we are here - I cannot be convinced that a thing is right simply because it is found in the constitution we are here to correct. It is no argument that a provision is found there, when we are here for the purpose of correcting it. We are here with a blank sheet of paper on which we are to write a constitution. We are not to do as was suggested in a resolution offered yesterday, to take the old constitution and patch it here and there and make it do for the present, and then for a few years still going on under this system of which we so much complain as heaping enormous outrages on us under this wretched instrument when applied to our condition - then, sir, we are to go to work and make a constitution. Why not do it now? Why not do this work completely at once? Why not make the best Constitution now that we are capable of making? And why shall we not regard, as suggested by Mr. Jefferson in the extract I read yesterday, that fifty years experience in government was worth more than all the theories that could be written on the subject? We have the light of that experience not only in our sister states but in our own. Doubtless there are many good things in the Virginia Constitution which will be retained in ours; but if we do it will be because they are in themselves good features to be introduced in any constitution and not because they are in that constitution.

Then, sir, to go back to the question before the house, I ask members to vote for this now and test this question: Are you disposed - do you consider yourselves as vested with authority - do you consider that, sitting here to make this Constitution, you have the slightest authority to disfranchise and disqualify any citizen except for crime committed? Why, sir, what was the excuse for the tyrannies of the English "Star Chamber" and the French revolutionary tribune, by which a man without trial or examination was sent to prison or the scaffold? The pretence was not that he had done something but that he might do something. Here it is: these two respectable classes of citizens - among the most respectable, irreproachable in private life as any other - are to be, without trial by judge or jury, punished with the same punishment which we declare shall attach to him who in time of insurrection or invasion refuses to take an oath of allegiance and to come out and manifest his allegiance to the State. But these innocent and irreproachable classes of men are to be punished in advance, not because they have committed anything but lest they might! Sir, the principle is a wrong one. Any principle that looks to punish a man before the offence, is wrong. Any principle that for insufficient cause, for a mere suspicion, for a mere threat, would deprive any citizen of this State of his birthright must be a wrong principle.

MR. BROWN of Kanawha. I would like to ask the gentleman a question with his permission.

MR. VAN WINKLE. Certainly, sir.

MR. BROWN of Kanawha. If the gentleman had a lawsuit involving half that he owned with a banking corporation, I want to ask him whether he would like to have the judge the president of that bank, who received a salary from that corporation, or whether he would move a change of venue in such a case?

MR. VAN WINKLE. Well, sir, if he was an honest man I think I would take him. However, I do not think the case at all a parallel. The judge has to declare the law, as in the facts he may have a secret bias of which he is himself unconscious. If we are to proscribe the judge in such a case, we are to proscribe juries, because there may be a bias unknown to them resting upon their mind. But let me say to the gentleman that even this is old-fogyish now. The tendency of modern jurisprudence, even in England, is not to exclude the witness, not to prevent his being examined, but the jury are to judge as to his credibility. Under the old rule a witness is brought before the court - as he says, General Washington - and having an interest of one cent in the result of the suit he is excluded from giving testimony; but the tendency of modern jurisprudence elsewhere is to let him be examined and let the jury judge how far this interest is influencing his mind; and, of course, if it was General Washington testifying in such a case as cited by the gentleman no jury would be found who supposed it would influence his mind in the slightest degree. Again, sir, in some States of this Union and in England, it is proposed the parties themselves are to be examined. In every suit that comes up the party himself gives his evidence - the defendant and the plaintiff, and the jury are left to judge how far they have been affected in giving their evidence by their private ends. The idea that such things lead to perjury is discarded.

I can only conclude by hoping that gentlemen will consider this a matter of principle; that in voting on this we shall know how they are inclined to regard this great principle of equal rights among citizens. That is the principle for which we contend: that every citizen should be equal before the law; that you should not take from one, unless for crime committed, any right which you give to another citizen. When a man enters into the service of the State - becomes, for instance the auditor of public accounts, makes himself a member of the executive branch of the government, there is a peculiar and recognized propriety why he should not walk into your legislature halls and exercise legislative functions - it being one of the fundamental principles of our government, state and national, that the executive and legislative branches must be kept distinct. If there is any reason of that nature and character, give force to it; but do not act upon any class of your fellow citizens on the supposition or the mere suspicion that they may do wrong. Human nature as the gentleman says, is fallible. I know it and I feel it. I had half a mind to have voted the ministers out yesterday because they tell us of it and make us feel bad sometimes. But, sir, fallible as we are, we know that every human institution is liable to abuse; and that is a corollary which you may draw from our fallibility. We know that every man is liable to abuse any trust or power; and on that ground, sir, even in this case we may well ask ourselves whether this class of citizens are any more liable to abuse it than we ourselves. If any of us is sent to the legislature, we may have no reason that the public can have access to, but we may have private ones hidden away in the recesses of our breasts and act accordingly. Therefore, to say that you can by any human provision correct this fallibility of human nature and make it infallible is more than we are warranted in saying. We cannot do it. We must take men as they are. What they are is a fact, and no fact should be disregarded: But why should we conclude that one class of citizens - and only a class, because they are of a certain profession; they are precisely the same as all our fellow citizens - that that class is more likely to abuse power than any other. We know with our politicians - notwithstanding their way of talking out of doors, judging them by what they say - we know this: After we have elected say to the presidency of the United States, there is a "still small voice" that comes up to him and tells him that he has a conscience; and he feels he has assumed responsibilities about which he could talk lightly during the canvass but which talk he is not disposed to act upon - unless he is, indeed, a bad man, after he comes to have responsibilities of office laid upon him. And so it may be with the class of fellow citizens now proposed to be stricken out. We should have the charity to believe that they, like ourselves, when they have assumed a public trust will be aware that they assume a responsibility for which they are answerable not only to their constituents, not only to the State at large, but answerable to Him who made them. Should we not be willing to believe that under these responsibilities, by their oath of office, unless they are the worst of men, they will act as nearly in accordance with those obligations as the rest of us. Sir, it is unjust and ungenerous to attribute to any man on account of his profession a weaker conscience than we claim to have ourselves.

MR. BROWN of Kanawha. The argument of the gentleman seems predicated on the supposition -

MR. VAN WINKLE. The gentleman has already occupied the floor twice, I believe, Mr. President.

THE PRESIDENT. The gentleman has spoken twice.

MR. BROWN of Kanawha. I only desire a word of explanation in reference to myself.

MR. VAN WINKLE. Well, sir, if this matter has become so narrowed down, I must claim some rights for myself, sir.

MR. BROWN of Kanawha. I only wish to set myself right before the Convention. I hope I have not been understood as complaining at all of any gentleman citing the constitutions, laws and prosperity of other states, comparing them with the constitution and laws of Virginia; but only to say that there seemed to be a reflection at the citation of our constitution and state; and I desire to set myself right. The argument of the gentleman in reply to mine seems to be predicated on that hypothesis. I disclaim any objection to the style of argument or anything of the kind. I have cited other constitutions. I only have to say, sir, that I do not like the feeling that exhibits itself. If I cite from the Constitution of Virginia and if this is to be the subject of reprobation - and I must confess that I have heard on more occasions than one the reference to the fleshpots of Egypt: the "flesh- pots" seemed to be connected with a reference to the Constitution of Virginia. Now that does not come agreeably to me. I hold that when I cite that constitution it is as high a record and instrument as any that can be found. I am prepared to attack that constitution at every point from one end to the other; but always with respect and admiration for all its provisions that are admirable; for it has things in that are admirable, and I do not think a reference to them, as I have a right to refer to them, ought to subject me or any one to the invidious and sneering comparisons that gentlemen have seen fit to indulge. That is the only explanation that I desire to make.

MR. HAYMOND. Mr. President, I am for striking out. I desire to say to this Convention that I came here as a liberal man. I came here to assist in forming a liberal constitution. I did not come here, Mr. President, to say that any man or set of men shall not have a voice in this government. Mr. President, I would like to know what banks are for and who they belong to. I have always understood that banks were to loan money to help carry on the trade and commerce of the country. That is the understanding I have always had. Gentlemen say they are not stockholders in our banks. Let us inquire. Sir, we have in western Virginia, about $500,000 stock in the banks. It belongs to us, the people. Therefore I presume that every man here is a stockholder of the bank. The cashier of the bank is only our agent; and are we not willing to trust him in our legislative halls? I have seen the day when a cashier was greatly needed in our legislative halls; for every man who knows any thing about banking knows that a great majority of these men who go to the legislature know nothing about a bank; nor you cannot learn them! The gentleman from Monongalia appears to be alarmed about our banks if the cashiers get into the legislature. I will say to the gentleman that neither he nor his constituents need be alarmed. They shall not be hurt. The banks and cashiers shall be their best friends. I shall vote, Mr. President, for striking out.

The vote being ordered on Mr. Van Winkle's motion to strike out of the second paragraph of the twelfth section the words "any salaried officer of a banking company or corporation," Mr. Brumfield demanded the yeas and nays.

When his name was called,

MR. LAMB said: I shall not vote, of course, on that question.

Mr. Lamb was excused from voting.

The record of the vote was as follows:

YEAS - Brown of Preston, Battelle, Chapman, Caldwell, Cassady, Hansley, Haymond, Hubbs, Hervey, Hagar, Irvine, Lauck, Mahon, Parsons, Powell, Parker, Paxton, Pomeroy, Stevenson of Wood, Stuart of Doddridge, Taylor and Van Winkle - 22.

NAYS - Brown of Kanawha, Brumfield, Carskadon, Dering, Dille, Hall of Marion, Harrison, Montague, O'Brien, Sinsel, Simmons, Sheets, Walker, Warder and Wilson - 15.

Absent or not voting - Brooks, Dolly, Ruffner, Stewart of Wirt, Soper, Trainer and the President.

So the words were stricken out.

MR. VAN WINKLE. I move that we now adjourn until the seventh of January. I apprehend there will be some business to do and I understand many gentlemen will be accommodated to go in a steamboat tonight. I shall not leave myself. It is not personal to me.

MR. LAMB. I think we had better adopt the amended clause.

MR. VAN WINKLE. I withdraw it to take the vote on the section.

MR. LAMB. I move the clause be adopted.

MR. CALDWELL. In regard to the first part of this clause, I wish to ask whether salaried officers of a state is intended to include all county officers.

MR. LAMB. The language is not "of the State" but "under this State." I take it that is the same expression found in the present constitution. I would take it to include all county officers that hold offices "of profit."

MR. CALDWELL. Then the consideration would be for the Convention to determine whether another clause which follows that in our present constitution, giving authority to justices of the peace to sit in the legislature -

MR. LAMB. If there is any other amendment desired we had better adjourn, perhaps.

MR. CALDWELL. As this discussion can be reached at another stage, after the recess, I will withdraw any amendment.

MR. VAN WINKLE. By an article adopted in another report, it is provided that no justices of the peace are excluded, absolutely.

THE PRESIDENT. The question is now upon the clause as amended.

MR. BROWN of Preston. I move, sir, to strike out "or any attorney for the State" - not for the reasons that were urged for striking out the other clauses but because I believe that officers of this kind are embraced under the first clause of the sentence:

"Nor shall any person holding an office of profit under this State or the United States." They are officers - made so - and they are paid officers. I presume it amounts to nothing more than tautology. That is my understanding of it.

MR. LAMB. That provision is adopted from the present constitution, altering the word "Commonwealth" to "State." It applies only to prosecuting attorneys, of course. The object of the provision was simply to settle a doubt whether an attorney for the Commonwealth was a person holding an office of profit under the State. If he does receive a salary from the State, no doubt he is included in the first clause and the words are entirely unnecessary. I believe that is a fact.

MR. VAN WINKLE. We do not know what the Judiciary Committee are going to do with prosecuting attorneys. If they shall, as now, receive a compensation from the State, they will be excluded under the general provision in this clause. If they do not, why then we do not want to exclude them by these specific words. Unless they are excluded as judicial officers, they are excluded then either way.

MR. LAMB. I suppose it may as well be stricken out by general consent; and make the clause read merely, then:

"Nor shall any person holding an office of profit under this State or the United States, be a member of either branch of the legislature."

MR. VAN WINKLE. Does a committee make an alteration in its own report?

THE PRESIDENT. I doubt the power of the committee to make an alteration when it is before the house.

The question was taken on the motion to strike out and it was agreed to.

MR. LAMB. I move the adoption of the paragraph as amended. The motion was agreed to.

MR. VAN WINKLE. I will now, sir, unless a gentleman wants to offer a proposition, or introduce some matter-of-course business, or make any remarks, move that we adjourn until the seventh of January at ten o'clock.

THE PRESIDENT. It is necessary that some understanding may be had with reference to reports printing. It would be well if we had all the reports of the committees.

MR. VAN WINKLE. There are some members so far off that the reports would hardly reach them before they would have to come back; and I suppose the mails would be slower. I was going to suggest that gentlemen desiring to have these papers sent to them should indicate their wishes to the clerk or sergeant-at-arms.

The Convention then adjourned to January 7, 1862, at 10:00 A. M.

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Chapter Eleven: First Constitutional Convention of West Virginia

A State of Convenience

West Virginia Archives and History