The Convention was opened with prayer by Rev. R. L. Brooks, member from Upshur.
Minutes read and approved.
THE PRESIDENT. The question is on the adoption of the thirty- second section of the second report of the Committee on the Legislative Department.
MR. STEVENSON of Wood. Mr. President, before the Convention proceeds to the regular business, I would wish to offer a resolution.
The Secretary reported it:
"RESOLVED, That the sergeant-at-arms be authorized to give up the rooms at present used by the committees of the Convention."
MR. VAN WINKLE. I would like to know what the facts are, sir. The rooms were hired for a certain period. There is no use giving them up before the time is out.
MR. STEVENSON of Wood. I will state that I suppose the Convention will still be in possession of the rooms until the expiration of the month - that is, the month which will expire sometime during this month; I think about the twenty-fifth, I believe, and, of course, they will not be given up until that time. I suppose the business of the committees generally is through with. There are some two committees that have not yet reported, but there is a room in connection with this building.
MR. VAN WINKLE. Four have not yet reported.
MR. STEVENSON of Wood. It will throw us into an additional expense of some twenty-five dollars if the rooms are retained after this month expires.
MR. VAN WINKLE. If the time is as long off as the twenty- fifth, I would ask that the resolution lie on the table. The committee on the schedule has a good deal to do; the Committees on Taxation and Education have not reported; the Committee on General Provisions have a further report to make; and I think there is yet another committee. Well, the Committee on Boundary is not through. However, that is but a trifling matter, to report a revision. Well, the Committee on Revision: their work will last to the end. I think it had better lie on the table a few days, with the consent of the mover.
THE PRESIDENT. Does the gentleman consent?
MR. STEVENSON of Wood. I have no objection.
THE PRESIDENT. The delegate from the county of Clay is in the Convention, and I believe is reported entitled to a seat, and if so, he will come forward and be sworn.
Mr. Stephenson of Clay came forward to the Secretary's desk and took the required oath.
THE PRESIDENT. If there are no further resolutions or petitions, the next thing in order will be the thirty-second section of the report of the Committee on the Legislative Department.
MR. LAMB. I move the adoption of that, sir. The Clerk will read it.
The Secretary reported it.
"32. The presiding officers of each branch shall sign publicly, in the presence of the branch over which he presides, while the same is in session, all bills and joint resolutions passed by the legislature."
MR. SOPER. Mr. President, I move to strike out the words: "In the presence of the branch over which he presides while the same is in session." I do this, sir, because I apprehend that it may place the legislature in an unpleasant predicament on the last day at the close of its session. I suppose, sir, that on that day the third reading of bills will occupy the greater part of its time, and amendments may be made; and it will be almost impossible to have those bills which have received their last reading engrossed for the signature of the presiding officer during the session of the legislature. If these words are stricken out the section will then read: "The presiding officers of each branch shall sign publicly all bills and joint resolutions passed by the legislature."
MR. LAMB. I would suggest to the gentleman that if his amendment should pass, whether it would not be necessary that the word "publicly" should go too.
MR. SOPER. Well, sir, perhaps it would.
MR. LAMB. Just leave out that the presiding officer shall sign. I must leave the discussion of the amendment to gentlemen more familiar with legislation than I am. The object of the provision is to secure all possible guards against any mistakes being committed in regard to bills which have been passed by the legislature, to have all possible care taken that only the bills which were actually passed by the legislature shall be signed. For that reason it is proposed he should sign in the presence of the branch. But gentlemen who are more familiar with the course of legislation are better capable of saying what ought to be done with this section than I am.
MR. SOPER. I know it is advisable, sir, to have this done in the presence of the legislature if it can be. If the Convention shall see fit to retain these words, I then propose this as an addition, to come in at the end of the section: "But no bill shall be put on its final passage on the last day of the session."
MR. POMEROY. I think it would be better to strike that out than to substitute what the gentleman proposes if it is retained. I cannot see any necessity of retaining this condition. The presiding officer shall sign all bills and joint resolutions passed by the legislature "publicly in the branch over which he presides." If the legislature were not present when he signs, I do not think it is a matter of any importance. I am in favor of the motion of the gentleman to strike out.
THE PRESIDENT. Does the Chair understand the gentleman as modifying his proposition?
MR. SOPER. No, sir; I merely stated I would offer this addition in case the Convention should be for retaining the words which I proposed to strike out. If it is supposed to be necessary to require that this act shall be done by the speaker or president while the legislature are in session - if this is the wish of the Convention - then I propose that amendment. My motion is just to strike out those words.
THE PRESIDENT. The question is on the motion of the gentleman from Tyler.
MR. STEVENSON of Wood. I would like to hear it read, Mr. President.
The Secretary read the section omitting the words: "Publicly in the presence of the branch over which he presides while the same is in session."
MR. STUART of Doddridge. I am decidedly in favor of the motion, from the fact that I can see no good reason for retaining those words. I suppose these bills will be furnished to the presiding officer by the clerk. Suppose a bill is furnished this morning to the president; he desires to examine it, to satisfy himself that it is a bill that has passed this body. What advantage to say that he shall decide it now there or take it to his room and decide it. We would not know anything more about it. I suppose he would not call our attention to it; and if he did I suppose we would have general contention and every member would want to know whether it was proper to be signed or not. It would lead to delay, trouble and contention.
MR. VAN WINKLE. Will the gentleman from Doddridge tell us what is the practice. My impression is that all bills are signed before the adjournment. I know the President of the United States goes to one of the committee rooms and signs bills as fast as they are brought to him. I presume he could sign either before or after the adjournment, but the bill would not become a law until it was signed. I think that is the construction put on the matter heretofore at Richmond. Whether they had this clause in the constitution or not, I do not remember. I thought perhaps the gentleman from Doddridge could inform us. What is the practice in that respect? My understanding is that the president signs the bill after adjournment.
MR. STUART of Doddridge. There was a committee appointed to examine enrolled bills and that committee signed them - is my understanding.
MR. VAN WINKLE. Certifies them only. My impression is that the practice is to sign them before adjournment.
MR. LAMB. So far as we can derive any information on this subject from the different states we find that provisions, some in the same shape as the one reported, and some in the shape in which it would be if the amendment of the gentleman from Tyler is adopted. I will read: The Constitution of the State of Ohio provides "The presiding officer of each house shall sign publicly in the presence of the house over which he presides, while the same is in session and capable of transacting business all bills and joint resolutions provided by the general assembly." The Constitution of Indiana, on the other hand, provides: "All bills and joint resolutions which shall be passed shall be signed by the presiding officers of the respective houses," without saying either way.
The amendment was agreed to, and the question recurred on the section as amended.
MR. HERVEY. I move to add after the word "legislature" the words: "Prior to its adjournment." It seems to me that bills might perhaps, be retained for weeks after the adjournment of the house before signing; and it would seem to be more proper that the business of the session should be done up before the adjournment. I think this would be a safe condition.
MR. STUART of Doddridge. Will the Clerk report the amendment.
MR. VAN WINKLE. I would suggest to the gentleman that to bring in these words where he proposes, it would seem to refer, if the bills have been passed before the adjournment. I understand his meaning is that they shall be signed before the adjournment. Let the words come in after "sign."
THE PRESIDENT. Does the gentleman from Brooke accept the suggestion?
MR. HERVEY. Yes, sir.
MR. SOPER. This amendment, sir, is equivalent to the words just stricken out.
MR. VAN WINKLE. Only a part of them.
MR. SOPER. Well, to the material part of them. The objection is this, that on the last day of the session, which is occupied mostly in the third reading of bills and to which amendments are made. Now after that those bills that have been read the last time, it may require a large number of clerks to do the engrossing, and if the legislature should keep in session until midnight, at the close of the day, as they oftentimes do on the last day, why here would be bills probably a large amount of them passed just at the close of the legislature when it would be impossible to engross them and have them signed during the session of the legislature. I think the amendment offered by the gentleman from Brooke will involve the difficulty that I suggest.
MR. VAN WINKLE. I do not think, sir, that any particular difficulty about this engrossment. Most of the bills the parties interested in have them engrossed and all right. They have passed probably the stage of amendment. They may put on a "rider" after that stage. But although I have never been in the legislature at the close of the session when I had anything to do with it, yet I have had bills passed through there and where coming pretty close to the close of the session we always got them engrossed and had them ready. I think the amendment of the gentleman from Brooke ought to prevail, because if not required to sign them during the session they may take their own time to do it. The general system is to say that the law shall be in force from its passage. Now, the question is whether it is passed until it is signed. I do not think the law is passed. The legislature may have voted to pass it, but if there is any formality that remains to be complied with, it certainly has not passed, and I think it cannot be considered passed until signed by the officers of the two houses. Well the practice hanging, as it were, on the same words, the interpretation would have already been given. And that would still be held, I presume, to be the rule, that the bills must be signed. But I think the words had better come in, to leave no doubt about the meaning. I think it is entirely proper. If there was no such practice to govern us, it is entirely proper that bills should be signed before the house adjourned. I shall favor the amendment.
THE PRESIDENT. The Chair would remark that they commence signing bills from the very commencement of the session. A bill is got up in the house to meet a contingency that requires prompt action by the legislature; or perhaps on the very first day of the session a bill is passed through and signed. I have certainly known it as early as the fifth day of the session.
MR. VAN WINKLE. Yes, sir; but the point is, the proceedings on the last day. Are not all the bills signed before the actual adjournment? Ten members can stay and make the adjournment.
THE PRESIDENT. Always signed before the adjournment; but he may sign very long before the adjournment. Very many of them are signed and copies sent out and go into effect long before the close of the session. You will find very many bills on your acts that went into effect before the adjournment of the legislature.
MR. RUFFNER. Mr. President, it will be remembered that the usual course in the legislature is that as bills have been passed and they are examined by the committee on enrolled bills and reported upon, they are in a condition to be signed; and that process goes on throughout the session of the legislature.
MR. VAN WINKLE. I would ask the gentleman if the committee on enrolled bills do not sit continuously during the last two or three days of the session?
MR. RUFFNER. Yes, sir.
MR. VAN WINKLE. I want to call attention whether I am right in stating that the bills are all signed before the actual adjournment. I think we had better make it specific, so as not to leave any doubt.
MR. LAMB. I have been in Richmond in the last days of the session. I recollect staying up one night to see it through. Bills after reported on by the committee on engrossment were signed by the speaker before the adjournment. The legislature had to keep in existence until the bills were all regularly signed.
MR. BROWN of Kanawha. Mr. President, I desire to inquire what the question is.
The Secretary reported the motion made by Mr. Hervey to add the words "prior to adjournment" after the word "legislature."
The amendment was agreed to and the section adopted as amended.
The next section was reported as follows:
"33. Each branch shall keep a journal of its proceedings, and cause the same to be published from time to time; and the yeas and nays on any question, shall at the desire of one fifth of those present, be entered on the journal."
MR. POMEROY. I move its adoption.
MR. SOPER. I move to strike out: "and the yeas and nays on any question shall at the desire of one-fifth of those present be entered on the journal." The section will then read:
"33. Each branch shall keep a journal of its proceedings, and cause the same to be published from time to time."
Now, if I understand the object of calling for the yeas and nays on any question it is that they shall appear on the journal.
MR. VAN WINKLE. The gentleman is mistaken. The custom is - although we have not observed it here in the Convention though it was in the convention of 1850. A gentleman would call for the yeas and nays and they were ordered and taken, and then followed another motion that they be entered on the journal. That was the uniform practice there.
MR. SOPER. It was to obviate that that I moved to strike out; because as the whole section reads they would never appear on the journal unless a motion was made that they should be entered there.
MR. LAMB. The section as it stands is an exact copy of the provision in the Constitution of the United States, which is the supreme law of the land, at any rate. A pretty good precedent for us to follow.
MR. SOPER. One moment. We hear a great deal about old constitutions - the Constitution of the United States. That was a most excellent instrument when it was formed; but many people suppose we are living in an age of great progress and improvement, and that at all events they have had the benefit of experience. Now it appears to be the great object here shortening sessions and curtailing expenses, and various other improvements; and in all modern times that appears to be the prevailing sentiment among the people as well as bodies of this description - I mean this Convention, other conventions and our legislatures. Now, if that is so, we had better be very explicit here in forming our Constitution, to see that it will be clearly understood; and if it be true that there can be no object in calling for the yeas and nays upon any question unless it be that it shall go forth to the public how the gentlemen have voted on that question, I insist in every case they ought to be placed on the journal, if that is the object in calling them, in every instance. But the yeas and nays may be called and taken, gentlemen may not be conversant with this provision of the Constitution; there may be no rule before them, and they may omit to make the motion, and the very object they had in view in having the yeas and nays stated, namely to make it public, may not be attained.
MR. VAN WINKLE. I would like to say, sir, through you, to my friend from Tyler, that the question here is not one of authority. It is a question of practice. What is the understanding of these provisions, as the gentleman from Ohio reads the Constitution of the United States to show that the language is the same. Well now, we know that under the Constitution of the United States the Congress of the United States do not enter its votes on the journal unless a motion was made to put them there. I cited the proceedings of the convention of 1850, which was composed of those familiar with the mode of doing business in the legislature of Virginia; and I am very decidedly of opinion, because I have seen it printed in the journal, a copy of which I have had here and have now at my room, that in every case a motion was made to enter the yeas and nays in the journal. Now, sir, here we require that on the passage of a bill the yeas and nays shall be taken and entered on the journal, but the yeas and nays are frequently called on "tuppeny" amendments and very frequently unnecessarily called, for it means nothing. Now suppose we strike this out, will not the interpretation be precisely the same? Will the yeas and nays be entered on the journal going back to the practice that prevails throughout legislative bodies in this country? And the general practice, unless there is something specific on the subject? Will it not be then that that law will do precisely what this clause that is proposed to be stricken out requires them to do? If the object is to prevent the necessity for this, let the gentleman substitute a clause to the effect that the yeas and nays shall be called and shall be entered on the journal. I think one- fifth ought to be the number to require the yeas and nays to be called, but a mere vote should enter it on the journal. I should think perhaps it is susceptible of amendment in that way. If if is not stricken out, it ought to read: "and the yeas and nays on any question shall, at the desire of one-fifth of those present be called and be entered on the journal."
MR. LAMB. "The yeas and nays of the members of either house on any question, shall, at the desire of one-fifth of those present, be entered on the journal." I take it that in this provision there is no such thing as a call for the yeas and nays, distinct from entering it on the journal. If one-fifth of the house rise to a call for the yeas and nays, it is an order to enter them on the journal.
MR. VAN WINKLE. It does not say so.
MR. LAMB. I take it that it does say so. The Constitution of the United States, which is like the provision here, does not contemplate a call for the yeas and nays distinct from an order for entering them in the journal. A call for the yeas and nays is an order to enter them on the journal, and necessarily so under the language used. That has been the construction I have always given to it. Our own rules appear to contemplate the same thing. The call for the yeas and nays is the same as an order to enter them on the journal. "Any member" says the Rule, "seven others concurring, shall have a right to demand the yeas and nays on any question, etc." It is not necessary to make any other order upon it. That is the rule of this body. Such I take it is the clear meaning of the language used in this case.
MR. POMEROY. Mr. President, I am in favor of this section as it stands and the more so with the explanation that has been made. I think there are two objects in calling for the yeas and nays, if I understand why they are called. One is to get the correct vote of the body without any liability to mistake. That is one object. I think it is impossible for the best presiding officer in the world always to decide correctly by the sound of "ayes" and "noes"; and after calling for those who are in favor to say "aye" and those opposed to say "no" it appears that a great number of the members do not vote either way. So there is only the vote of a small part of the members on the subject. But when you call the roll, the members all vote (unless excused). But the great object, I suppose, is that a man may be placed on the record and that it may go out to the world how he voted. I think this provision is wise. A captious individual in the legislature, thinking he was voting right and everybody else wrong might demand the yeas and nays and not get them; but if one-fifth of the body agree with him in the demand, the yeas and nays are called, and I think that number ought to have the right to do so. There is a great deal said just now about votes that have been taken in this body, but I am very glad that our names are on the record. And I think that is right; that the yeas and nays should be called at the desire of one-fifth and entered on the journal. I understand it as the gentleman from Ohio, that the great object is that they may go on the journal. Our other votes do not. It is only said that the motion prevailed or was rejected; but it doesn't say how the members voted; but if the yeas and nays are called, it goes out how we did vote. It gives one-fifth the power to have the vote recorded. I think it is a good provision, and am in favor of the section as it stands.
MR. SOPER. My object, sir, in making the motion was to leave this matter of calling the yeas and nays and putting them on the journal to be regulated by the rules of the body - legislature or convention or whatever it might be; not place it here in the Constitution which probably could not be varied. Now "each branch shall keep a journal of its proceedings and cause the same to be published from time to time." That would require that the yeas and nays taken on every occasion should go on the journal. It would be part of the proceedings. It would be necessary to be published. If, however, the body should see fit to pass such a rule as we have adopted here, or should qualify it in any other way, that a portion of the yeas and nays called should not be placed on the record, why they would have the power of doing so. Indeed, I can conceive very well where a captious individual in a legislative body if he should be displeased and should want to gratify his spleen might demand to call the yeas and nays on almost every question - frivolous and unimportant question - where they never ought to have been called and much less ought to go on the journal. I can conceive that, sir, and there is no remedy to guard against it unless it be by a rule of the body requiring that a certain portion of the body should concur in the call for the yeas and nays, and also requiring that the same number or a larger number should require the yeas and nays to be placed on the journal.
If my motion prevails, sir, then this whole matter of yeas and nays - the taking of them and publishing of them - will be controlled by a rule to be passed by the body.
MR. BROWN of Kanawha. The difficulty with me would be that under the provision in the Constitution of the United States, and it is copied here, a different construction has grown up in the country. Whether one or the other is right is not the matter for us to determine because some other body might determine it differently; but for us it seems to me the duty is to determine upon something definite that will not be changed hereafter if we intend to fix this question in the Constitution at all. It seems to me that whenever the yeas and nays are called by one-fifth of the body - and they ought not to be required unless a fifth did call for them they ought to be entered on the journal at once without any further motion; and inasmuch as I consider it something gained to avoid the necessity of a separate motion to put them on the journal after they have been called for and taken and that is the real thing to be desired in this matter, I propose an amendment as follows: insert after "yeas and nays on any question" the words, "being called for by one-fifth of those present shall be entered on the journal" without any further voting about it. I was not able to catch the amendment of the gentleman from Tyler.
MR. SOPER. My amendment was to strike out and leave it subject to a rule, hereafter.
I have no objection to that proposition.
MR. VAN WINKLE. Well, sir, the form in which it is now proposed to make it will meet my views exactly.
I would take this opportunity to say, Mr. President, that there are none of these matters: about which I would be tenacious. What I want is that they should be clearly expressed, whatever the rules are, and they may be clearly understood either by the current interpretation given to similar principles elsewhere or by additional words inserted here, as now proposed, so that there shall be no mistake about it. I know for myself my experience in legislative matters is exceedingly limited. I have never been a member of the legislature. I have had only the same opportunity of watching their proceedings as others, except that I have been there during several sessions interested in the passage of several bills. But my experience, limited as it is - and we are an inexperienced body - does not seem to be exceeded by that of any other member; and I think we can do no harm by putting down explicitly what we do mean. The amendment of the gentleman from Kanawha will put the section into such a form that I think it cannot be mistaken.
The Secretary reported the section as it would read if the amendment should be adopted:
"33. Each branch shall keep a journal of its proceedings and cause the same to be published from time to time, and the yeas and nays on any question, if called for by one-fifth of those -present shall be entered on the journal."
The amendment was agreed to; and the section adopted as amended.
The next section was reported.
"34. No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money, shall be published from time to time."
MR. LAMB. Mr. President, I am informed that the Committee on Finance will report a section on the subject; and perhaps as their report is not in, it would be but common courtesy to lay this over until their report is presented.
THE PRESIDENT. The question is on passing by the thirty- fourth section.
It was agreed to pass the section by for the present.
The next section was reported.
"35. The legislature, in cases not provided for in this Constitution, shall prescribe by law the terms of office, powers, duties and compensation of all officers of the State, and the manner in which they shall be appointed and removed."
MR. LAMB. Mr. President, it struck me that this section is not sufficiently comprehensive. If we attempt at all in the Constitution to define the powers which the legislature may exercise in reference to the officers of the State will not the construction arise that the expression of one thing is the exclusion of another? May they not be excluded from the exercise of powers in regard to officers that they ought to possess by the fact that we have expressly granted them certain powers, necessarily implying that they are to be excluded from others? I would prefer making the section a little more comprehensive, and putting the eleventh and thirty- fifth sections into one. I have drawn a proposition to that effect; and if it is the pleasure of the Convention that the thirty-fifth section should be passed by for the present and let this proposition be laid on the table and printed, and acted upon as the members can see it in proper form, I move to pass by.
MR. VAN WINKLE. Let it be read.
MR. BROWN of Kanawha. Mr. President, I have no objections to passing by if I thought there was anything to be gained by it; but both those sections are wholly unnecessary and void. We having just provided that the legislature has all power not herein prohibited.
MR. VAN WINKLE. It would be but courtesy to hear the gentleman's amendment read.
MR. BROWN of Kanawha. I was desirous of hearing it.
Mr. Lamb read as follows:
"The legislature may provide by law for the registration of voters in the several counties, cities, toTvns or townships in which they reside; and prescribe the nature of the evidence to be required, in case of a dispute as to the right of any person to vote. They may pass such laws as shall be necessary or proper to prevent intimidation, disorder, violence, corruption, or fraud in elections, and may regulate the manner of conducting and making returns of elections - of determining contested elections, and of filling vacancies in office, in cases not provided for in this Constitution. They may provide by law, subject to the provisions of this Constitution, for the election, appointment, and removal of public officers and agents, and prescribe their qualifications, oaths, terms of office, official bonds and commissions, powers, duties and compensation. But the legislature shall exercise no appointing power except in cases where such power is conferred on them by this Constitution, and in the election of United States Senators, and they shall create no office, the term of which shall be longer than four years, and no persons shall be elected or appointed to any office, within any district, county or township, who shall not have been an inhabitant thereof for one year preceding his election or appointment."
MR. BROWN of Kanawha. The first section we have adopted of this report provides that the legislative power of the State shall be vested in the senate and house of delegates. Now, in that section we have given to that legislature all the legislative power that is inherent in any legislative body absolutely. It can do anything that any legislative body can do, unless after that we go on and restrict and prohibit it from doing the things granted in the first section. Now what object can be attained after having given them the power to make all laws that are not in conflict with the other provisions of the Constitution, to go on and enumerate specifically that it may make a law for this or that, everything of which is within the general provision? Why, it would be just as wise to say that the legislature, after having given it all legislative power, might then make a law. It shall have all power to make laws, and then specify that it may make one law. Now, we stand here in this, totally different from the Congress of the United States and the Government of the United States, which has no powers given to it save and except what are delegated in the Constitution. In this body, the legislature represents all the legislative power in the people not delegated by the Constitution of the United States to the Government of the United States. Unless the Constitution of the State prohibits - makes a further prohibition. Well, in this first section we have given all power to the legislature. Now why is it necessary in sections 11 and 35 to go on and enumerate the very same powers that are included in the general plan? If we enter on that plan, if you undertake to enumerate the particular powers, why it would be wise to go on and enumerate all of them individually; and since no man can ever accomplish that, because time and experience alone can enable any one to do it, you might restrict your legislature unnecessarily in the exercise of the powers properly granted in the first section. It is making the Constitution cumbrous, repeating twice that which is once granted, and if any effect can be had to it, it seems by the repetition of one thing to exclude the exercise of anything not so repeated; but that would be destroying the Constitution (legislature?) itself; because no legislature would be worth calling a legislature if it had no legislative powers more than those specifically granted to it. I therefore prefer to have these two sections stricken out, that the constitution may be restraints on the action of the legislature, not redelegating that which has been once generally granted. I will amend the motion by moving to strike out both.
MR. LAMB. I would suggest to the gentleman to let the subject be passed by.
MR. BROWN of Kanawha. Very well; I yield to the request of the gentleman.
MR. LAMB. One of the two sections to which the gentleman refers was drafted on the idea that the legislative power in regard to elections and in regard to officers; are not necessarily to be restricted by the specific provisions on those subjects that are already contained in the Constitution. The Constitution having made certain provisions in regard to elections, the inference would be necessary that the legislature had no power to go beyond those specific provisions unless you gave it to them expressly. It having made certain provisions in regard to officers - and necessarily doing so - the inference might arise, at least it would present a fair subject of doubt, whether the inference did not arise that the legislature had no authority beyond those specific provisions. Whether that may be a fair construction or not these provisions were rather inserted for the purpose of obviating any doubt that might be created by such a construction than for any other purpose. The Constitution is necessarily full of provisions in regard to elections, who may vote. The mere act of authorizing the legislature to make a registry of voters may be considered a restriction upon the right of voting and therefore out of the power of the legislature unless it is expressly granted in the Constitution; for if the Constitution confers the right of voting in a certain way, the legislature have no right to say voters must be registered unless you confer that power expressly. However, the whole subject will be up when the substitute is pending.
MR. BROWN of Kanawha. Mr. President, I cannot concur with the construction the gentleman gives, that you enter upon the construction of the Constitution in the light as he has given us. It seems to me that in construing a constitution, whenever a power is granted the legislature will certainly have all power not prohibited by the constitution. To carry into effect that power that is delegated - the constitution cannot carry itself into execution, every constitution has to have the aid of the laws made by the legislature to carry its provisions into effect - whatever provision is made in the constitution relative to voters, the legislature must have full and ample power in its discretion, and in times whenever they happen to be most convenient and proper, to carry that power into execution; otherwise your constitution is useless. Now, whatever is specifically granted in the constitution relative to voters cannot be altered, but the legislature must have power to carry it into effect. If you say that voters shall be registered, then the legislature must provide for registering. And so of every other provision. The question arises is not this simply a repetition by particulars of a general power that has been already granted.
MR. VAN WINKLE. The gentleman from Ohio has offered a pretty long amendment which he desires to have printed and submitted to the consideration of the body, and for that purpose he proposes to pass by, temporarily, of course, the article under consideration. I think, sir, that is a courtesy that is due perhaps to any member of the body, and I am therefore in favor of passing by for the present. When this is printed and comes up we shall have the subject before us, and the debate that takes place now will be only repeated then.
The motion to pass by was agreed to.
The question recurred on the thirty-sixth section, which was reported as follows:
"36. No extra compensation shall be granted or allowed by the legislature to any public officer, agent or contractor, after the services shall have been rendered, or the contract entered into. Nor shall the salary or compensation of any public officer be increased or diminished during his term of office, unless the office be abolished."
MR. LAMB. I have found a similar provision in the constitution of many of the states. The Constitution of Maryland was substantially the same: "No extra compensation shall be granted or allowed by the general assembly to any public officer, agent, servant or contractor after the service shall have been rendered or a contract entered into; nor shall the salary or compensation of any public officer be increased or diminished during his term of office." The same provision is in the Constitutions of Ohio, Illinois, Iowa, etc., etc., and with the same terms.
The object of the provision I suppose is sufficiently apparent. This thing of granting extra compensation to contractors and public officers we know is continually subjecting the legislatures to improper influences and to improper solicitations. It is much better when a contract is entered or a man enters the service of the state, it strikes me, that he should know at once that the compensation for which he has agreed to render the service cannot be varied. The legislature will be suffered, then, to attend to their legislative duties without being solicited from day to day for this officer or that officer. Parties will be prevented from entering into contracts - which has "been too frequently the case - at a rate unreasonably low, on the supposition that the presumed hardship of the case would enable them to get the legislature to increase the compensation. Public officers when they enter into office will enter upon the office knowing that they are just to receive the salary which has been previously fixed for that office and that it cannot be either diminished or increased. The influence of public officers about the legislature to solicit increase of salary will be prevented. It strikes me that with the examples we have before us, the fact that the provision exists in the constitutions of many other states, and that we have never heard of any complaint there of injury from the operation of it, and the many witnesses which induce us to suppose that it would operate beneficially, should justify this Convention in adopting that clause.
MR. BROWN of Preston. I move to strike out the words: "unless the office be abolished," for the reason that I can see no applicability at all. If an office is abolished, as a matter of course the salary or compensation is also abolished. It is not a diminution of the salary or compensation when you abolish the office but it is a doing away with it entirely. I can see no effect or force at all in the words "unless the office be abolished."
MR. HERVEY. Mr. President, as the clause now stands, if the office is abolished the salary may be increased or diminished. I presume that is not the purpose of the committee. Still I would be in favor of an amendment to the amendment and will make it. It is to add after the word "abolished" the words "or when it shall cease," making the salary cease when the office is abolished. I make that as an amendment to the amendment.
THE PRESIDENT. Does the gentleman from Preston accept it?
MR. BROWN of Preston. No, sir; I am unable to see the force of it.
MR. BROWN of Kanawha. Mr. President, I shall favor the adoption of the amendment to the amendment; and I will cite an instance in which this very question came up. While I do not really believe it is absolutely necessary it certainly is highly proper to settle a controverted question. Some years ago, when the State of Kentucky altered her constitution and made a new one and put the government under the new constitution, it found all the old judges in office whose terms of office had not expired when the new constitution took effect. An old gentleman contended that there was no power in the state to turn them out of office and it was a question whether there was any court of appeals in the state. The government under the constitution paid no regard to these official dignitaries. It became a very serious controversy, but the people asserted their sovereignty and maintained the new against the old. In just such a case - for these old officers took the ground that they went into office on a contract that they assume the responsibilities of an official station for a particular length of time upon a particular consideration; and as there was no reservation in the constitution expressly to take away that office, that they could not be divested; that they had vested rights secured in the office so long as they discharged their duties; and as they had never been discharged they claimed it was not competent to disfranchise them. Now, this amendment completely answers that objection. That is the only benefit I see to be derived from it; for officers - if they should find it necessary to remodel the constitution - could not say they had taken and held the offices under it for a time that might exceed the date when the people might choose to revoke the whole. It would be a reservation in the constitution of the right to turn them out whenever they please and stop the pay when they turn them out.
MR. LAMB. I do not understand exactly what the question is.
Mr. Hervey presented his amendment to the amendment; and it was reported by the Secretary as follows:
To add after the words which Mr. Brown of Preston proposes to strike out, the words "when it shall cease."
MR. LAMB. It strikes me that can hardly be offered as an amendment to the amendment. I do not see how that can be considered as amending the motion of the gentleman from Preston. The motion of the gentleman from Preston is to strike out the words "unless the office be abolished." This is to add after the word "abolished," "when it shall cease." It is just intended to reverse the effect of the amendment offered by the gentleman from Preston: not merely to retain the words which he proposes to strike out but to give them a more explicit expression. They are two separate motions, it strikes me and ought to be put separately; and probably the amendment offered by the gentleman from Brooke will take precedence over the other.
MR. BROWN of Kanawha. I would suggest to the gentleman from Brooke to substitute the word "salary" or "compensation" for "it." "It" might refer to the office which was abolished.
Mr. Hervey rose.
THE PRESIDENT. "The Chair would have some doubts about the question raised by the gentleman from Ohio and yet would incline to the opinion that the motion to amend the amendment would be in order.
MR. VAN WINKLE. The gentleman from Preston moves to strike out certain words. The gentleman from Brooke moves to add certain words' to those it is proposed to strike out. When a clause is proposed to be stricken out, the friends are allowed to perfect it. An amendment to an amendment is always in order.
THE PRESIDENT. The Chair expressed the opinion that the amendment to the amendment would be in order and said the gentleman from Ohio might have raised some doubt in the mind on the subject but inclined to the opinion that it was in order.
MR. SOPER. I would suggest to both the gentlemen the propriety of altering the clause so that it would read in this way: "Nor shall the salary or compensation of any public officer be increased during his term of office or abolished or diminished unless the office be abolished."
MR. VAN WINKLE. That will do.
MR. HERVEY. That is not precisely meeting the case.
MR. LAMB. Mr. President, it strikes me the suggestion of the member from Tyler will meet the case exactly and put the section in such shape as to meet the object of the gentleman from Brooke and at the same time be a decided improvement in the expression of it.
MR. VAN WINKLE. If the gentleman from Preston will accept the suggestion of the gentleman from Tyler, we shall be able to go ahead. It seems to me to meet the views of all parties.
MR. SOPER. It will read: "Nor shall the salary or compensation of any public officer be increased during his term of office or diminished unless the office be abolished."
MR. BROWN of Preston. I have no objections.
MR. HERVEY. I think that is precisely the proposition that was before the house. I cannot see any difference between the proposition of the gentleman from Tyler and the original one. I therefore cannot accept the amendment, with my understanding of it.
MR. SOPER. I may explain: The salary of the officer shall not be increased during his term of office. We all understand that distinctly. Nor diminished unless the office be abolished.
MR. HERVEY. Precisely the way it reads in the original.
MR. SOPER. No, sir; whenever the office is abolished, then the salary is at an end.
MR. VAN WINKLE. Well, the member from Brooke refuses to accept the amendment, and the member from Preston cannot accept it. The question then comes on the amendment of the gentleman from Brooke.
The question was taken and Mr. Hervey's motion to add the words "when it shall cease" was rejected.
The question recurred on the motion of Mr. Brown of Preston to strike out the words "unless the office be abolished."
MR. SOPER. Do I understand you were willing to accept of my amendment?
MR. BROWN of Preston. I have no objections to the suggestion of the gentleman from Tyler.
The Secretary reported Mr. Soper's proposition: "Nor shall the salary or compensation of any public office be increased during his term of office nor diminished unless the office be abolished."
MR. STUART of Doddridge. I do not exactly understand the phraseology as it stands now. When the office is abolished, it would stand then that the salary may be diminished, but I want the salary to cease; and I think if we strike the whole out here, it will cease. Now, it may be diminished in many ways. I am sorry the gentleman from Preston has accepted the modification of the gentleman from Tyler; because I think if we would strike out the words "unless the office be abolished," the matter would be left in its present form - that when the office is abolished the salary has ceased.
MR. SOPER. Well, sir, that I understand to be the effect of the amendment I propose.
MR. STUART of Doddridge. I am afraid that will not look that way quite.
MR. SOPER. Then we can alter it to make it read as you suggest.
MR. POMEROY. I am decidedly of opinion that the motion of the gentleman from Preston is best; just to strike out those words.
MR. HERVEY. There is no such proposition.
MR. POMEROY. Gentlemen say sometimes it does not cease. I think we ought to make it distinctly understood hereafter that it would cease; and I think to strike out those words is all that is necessary. We will when he goes out of office not only diminish the salary but cut it all off. I should think that was sufficient.
MR. SOPER. Well, sir, I will accept that.
MR. LAMB. Mr. President, the question, I suppose that we are really discussing is whether if the salary ceases entirely it is "diminishing" the salary.
MR. STUART of Doddridge. No, sir.
MR. LAMB. The clause, certainly, as it stands in the printed report does imply that the abolishing of the office and the ceasing of the salary is a diminution. But it is a queer expression. I would merely suggest whether the section could not be improved if made to read this way: Let the first sentence end at the word "office" - "nor shall the salary or compensation of any public officer be increased or diminished during his term of office." Then have a new sentence: "If the office be abolished the salary shall cease." The object of putting it into that shape would be to confer clearly upon the legislature the power to abolish offices and by that means to stop the salary entirely notwithstanding the terms of office were unexpired.
MR. SOPER. I believe, sir, that I will alter the motion: "nor shall the salary or compensation of any public officer be increased during his term of office." That would imply that the legislature would have the right to diminish it. Well, now, if an officer should be so entirely incompetent, or if he should be guilty of any base or immoral act, I believe it would be safe to leave it with the legislature to take away his compensation. This will probably be the easiest and best way to get rid of this.
MR. VAN WINKLE. The salary would be taken away by his being taken out of office, most certainly.
MR. SOPER. I propose to amend the latter clause of that section in that way, sir - strike out all the residue.
THE PRESIDENT. The question was on the motion of the gentleman from Preston. The gentleman from Tyler moved to amend and the gentleman accepted it. Now the gentleman from Tyler offers to amend it again in this way: striking out the words "unless the office be abolished." The question is on the adoption of the amendment to the amendment.
MR. VAN WINKLE. I should object, and then the gentleman from Preston would not have the power. The provision that the compensation shall not be diminished during the term of office is just as important a one, in my opinion, as that it should not be increased. The Constitution provides for the election of certain officers and prescribes their term of office. The legislature might want to get rid of an incumbent; and as they fix the salaries they may go and reduce that compensation to nothing and oust a man. Therefore in the words "increased or diminished," one is equally important with the other. I come back to the original motion of the gentleman from Preston, striking out "unless the office be abolished," as unnecessary. The gentleman from Kanawha alluded to the question in Kentucky about old courts and new courts; and I think (the gentleman will correct me if I am mistaken) we have later received a pretty elaborate investigation legally and otherwise, and it was decided that an office could be abolished during the term for which an incumbent was elected. I do not remember where the decisions were rendered, but it has been held ever since as an opinion. They proposed in Congress, to get rid of some of the judges of the Supreme Court, to abolish the court. Since this present Congress met they have proposed to get rid of some of the district judges in the rebel districts by changing or altering the districts; and there seems to be no doubt about their power to abolish the court. The Constitution of the United States provides for a Supreme Court, the principal functions of which are to be defined by the Congress; but the Congress is allowed to establish courts inferior to the Supreme Court. So the district courts were established by them. They changed the district, and so abolished the court and got rid of the judges. I believe that has been determined and is now in American jurisprudence and American politics an already settled point, that an office can be abolished notwithstanding there is a salaried incumbent, and that his salary ceases when the office is abolished. The section, then, as reported by the committee, by striking out the words proposed by the gentleman from Preston, will be entirely sufficient to meet the case: "nor shall the salary or compensation of any public officer be increased or diminished during his term of office." That is when a man is once elected there you cannot either reward him, make him a partison, by increasing his salary nor drive him from office by diminishing it. The legislature certainly should have no such power. Well, then, unless the office be abolished, that is intended to apply; but I agree with the gentleman from Ohio that is rather awkward even for what it is intended for. It is intended rather to exclude a conclusion, and that is all: the conclusion that in the case of the abolition of an office the salary goes on. That I think is not necessary, for no such conclusion could be justly arrived at, and therefore the words are superfluous. I am, therefore, sir, in favor of the original motion of the gentleman from Preston, to strike out those words. I think then the whole case, according to these gentlemen who have expressed themselves will be reached. A guaranty will be given to the officer that if he has entered on the duties of the office, his salary is not to be diminished during his term; and on the other hand the public have a guaranty that the legislature are not to be allowed to subsidize the public officers by increasing their compensation.
MR. BROWN of Kanawha. Mr. President, since the Convention have refused to add the amendment proposed by the gentleman from Brooke, which explained this sentence and rendered it perfectly plain, I am content to take the proposition of the gentleman from Preston as it is by just striking out the words "unless the office be abolished." It simplifies the sentence; and the country have so far acquiesced in the question that in all human probability it never will be raised again. We have had the same principle in Virginia. When the constitution of 1850-51 went into operation, it found all the officers of the State in office. The whole State acquiesced in it, although it cut their offices right off and in the courts turned the judges right out.
MR. VAN WINKLE. Was it not the decision there that an office in this country is not a franchise? In Europe they are hereditary; and the ground taken by the old judges was that an office was something in the nature of a franchise here; and the decision was that it was not; and that when the office was abolished everything connected with it ceased.
MR. BROWN of Kanawha. I am not able to state precisely the ground on which the question was determined; but that is substantially the position laid down in the Bill of Rights of Virginia, that these offices and franchises are held for the good of the public service and not for the good of the officer and therefore maintained against the power of the people to dispose of the office; and that the people in disposing of the government of which the officer becomes a part absolutely dispose of the office too. So that this whole sentence would be retained perfectly complete by simply striking out the words: "unless the office be abolished," and is then better I think than it can be made.
MR. SOPER. I am satisfied with the remarks of the gentlemen from Wood and Kanawha, and I hope the gentleman from Preston will renew his motion to strike out, and I withdraw my amendment, sir.
MR. LAMB. I am very well satisfied that the proper amendment to the original is the motion of the gentleman from Preston; and particularly satisfied that the word "diminished" is not to be stricken out of this section. I do not think his proposition affects the most important part of the section.
MR. SOPER. It may be, sir; I can see where various reasons would require that word to be retained.
MR. LAMB. Allow the legislature to diminish the salary of an officer during his term of office and a party legislature has all the officers of the State under its thumb and they cannot move for fear their salary will be diminished to nothing and one of the very important objects of the provision would fail.
On request of the President, Mr. Stevenson of Wood took the chair, who stated the question to be on the thirty-sixth section as amended.
MR. SOPER. Mr. President, I want to call the attention of the Convention to the effect of this section. Now, may there not be contracts entered into through ignorance that might prove ruinous to a contractor; and if we pass this provision in the Constitution he would be entirely left without remedy. Let me call your attention to a case that may arise within this State. Suppose in the erection of a canal or railroad, you go over, you look at the surface, you make an examination and you put in your propositions. Well, by-and-by when you come to get through your mountain or some other portion of the ground you discover a hard substance, "hard-pan," a familiar name, or you find some other obstructions in the way that it was almost impossible to discover. Now, sir, where a party has entered into a contract and expended large amounts of money and met with this unfortunate difficulty - difficulties in the way which will prove ruinous for him and render it impossible for him to complete it, ought he not to have some remedy, and would not that remedy be with the legislature in the exercise of its equity powers? In order to do what would be just to the party who had thus been, either ignorantly or in any other way misled into the creation of the contract? If we adopt this section as it now reads, that portion of it which takes away from the legislature the power of granting any equitable relief in any case that might arise might prove ruinous to every person connected with it, and might also prove injurious to the State in consequence of the delay that necessarily would ensue. I throw out this suggestion for the consideration of gentlemen to see whether we had better not strike out the forepart of that section and leave this whole matter to the discrimination and judgment of our legislature.
MR. BROWN of Kanawha. Mr. President, I fear the gentleman from Tyler is too much concerned now for the security of these gentlemen, contractors, who I have no doubt will always take care of their own cases.
THE PRESIDING OFFICER. The Chair would like to suggest to gentlemen unless their remarks are on the question of striking out the whole section, it might be well enough to make an amendment to the particular part under discussion.
MR. SOPER. Well, for the purpose of bringing up the question, I will move to strike out the words in the first, second and third lines - the first clause of the section.
MR. RUFFNER. I would merely make a suggestion, sir - I have been very well aware that the difficulty suggested by the gentleman from Tyler may arise to the disadvantage of the State as well as the contractor. May not his object be attained by striking out the latter words of the clause: "or the contract entered into?" So that it may read "after the service shall have been rendered." So that a contract may be modified before the services are rendered to suit the particular case?
MR. BROWN of Kanawha. I shall look, in the vote I shall give on this section, to the question of general principle - the great principle of security to the public, and not particular cases. I am satisfied that this is an essential security to the public treasury; that the great tendency is in all these contracts, to award them to the lowest bidder, whoever it may be, and the inducement held out is for the parties to obtain the contract by an excessive bid, high or low; and when it has been obtained at ruinous rates to go on and never cease to solicit the legislature until they have been paid twice or thrice the price it could have been obtained at; and that the loss that will continually accrue in such cases will a thousand-fold compensate the occasional individual loss. Because there will be such. But that upon a general principle the great gain is to the public. The private individuals will always be pretty shrewd and take care of themselves. When a man bids for a contract, knowing it will not be altered, he will not put it below living rates. We have seen that in granting increases in all kinds of contracts and in a small degree in our state concerns; and that is the real evil to be avoided. Whenever you have fixed and determined that the party shall not have any more than he has bargained for - and why should not this contractor, like everybody else, be required to live up to his bargain? - then he knows that it will not be altered, and knowing that fact he will take care of himself in managing his own business.
MR. VAN WINKLE. I have had some little experience about contracts and I do not attach much force to the case given by the gentleman from Tyier. I know the fact that these contractors for public works always make allowances for disappointments of that kind. I know, on the other hand, that much abuse grows out of the contract system. Many of these army contracts, now so much complained of, have been done in that way. If a thing is put up to be let to the lowest bidder, the man makes a low bid to shut out all competition. Then he expects to go to Congress and get an extra allowance. That is a sheer injustice to other bidders. He had the same means that they had of calculating, but knowingly and wilfully puts in a bid to insure the contract far below and then hopes to come back and show that he has really lost money and so prevail upon the sympathies of Congress to make it up.
I have had some experience in the different capacities of a railroad man and connected with the government of my own town. We were in the habit in the first place, when I had anything to do with it - "kissing" went "by favor" - they generally gave out the contracts among themselves; but we got in a "reform" board and established the principle of letting to the lowest bidder, and got contracts taken at a remarkably low figure. And sure enough, before the season was over they came back with long faces and asked the council to make it up. I then endeavored to establish a rule that in making it up they should provide what the work had actually cost them; that they should at least lose the profits on it as a punishment for this low bidding. Then we had to make it that the contracts should be let to the lowest and best bidder and make them give security; and finally that no allowance would be made. Of course, we could not govern our successors; but as long as this was known there was none asked for or thought of afterwards. The protection that this gives to the people is a very great one. The thing has been constantly done in the legislatures of the whole country: men entering into engagements they knew they could not fulfill and depriving other and better men, who could really have done it cheaper, of the advantage of their bids by bidding below them and then coming back to have it made up. It is certainly a great injustice to the honest traders in that line. The case the gentleman from Tyier has enumerated is exceptional. One or two cases, at the outside, would be the extent of it. There is nothing here to prevent the legislature rescinding a contract if it is found the contractor cannot carry it out on account of the interposition of some such difficulty as the gentleman has indicated, paying him for what work has been done, instead of giving him an extra allowance. The thing is then put up at public outcry again or the work offered again to the public with the knowledge that has now been obtained that there are greater difficulties in the work than was first anticipated. It is then relet; and then the rule applies again that that man is to have no extra pay. The only difficulty is one that is readily obviated: rescinding the contract and offering it again to the public.
I think, sir, that justice to honest contractors demands that this clause be retained. Justice to the people most unquestionably demands it. For the most outrageous swindles in the purchase of public supplies are being discovered by investigating committees in almost every quarter, by means of underbidding. The dishonest bid is taken, and then it is made up to the contractor afterwards. We ought certainly to stop that kind of game.
MR. SOPER. I never have been a contractor of any description that required a compensation from the public, and never expect to be, sir. My object in making the motion was to call the attention of the Convention to the effect of the section that he proposed to strike out if we leave it to remain here; and I instanced where hardships might arise unavoidably and unexpectedly and without the party being able to discover it before he entered into the contract in which justice and equity would require the individual should be compensated. Now, when we insist upon this clause, in order to guard against contractors, etc., we carry indirectly an imputation upon the individuals who are empowered by the State to enter into these contracts, and we carry the like imputation as to the honesty or competence of the legislature. Now, ought we to do an act of that kind which would be an imputation - cast reflections of this description? Would it not be better to leave this whole matter to be determined upon by each particular case, believing the State officers and the legislature who would have control of this matter would be equally as competent and honest as we ourselves? Let us take another case. Suppose we were about to erect here a state house and it would be let out on contract, and it would be reduced to writing; that it would be thought on the part of the State that you should take and put down every particular -
(The President at this point resumed the chair.)
that would be required in the building. Suppose the man having control of it will find an alteration beneficial, or that "extras" would be done - what under the contract you might consider as extras if you please. Well now you could bring no action against the State after the work is rendered. It might be even at the expense of the person who had control of the building that these alterations take place. The party doing the work would have no remedy legally against the State. He could not prosecute the State. If it was between individuals he could maintain an action on everything that was not embraced in the contract itself, if it had been performed; but as against the State, he would not have that remedy. Ought there be a clause in the Constitution that would prevent the legislature from acting in that case and compensate the individual for what he was honestly entitled to. It is, sir, with a view of calling the attention of the Convention to this state of things that I have been induced to make this amendment. Now, I am fully aware - I know the ingenuity and the contrivances of men who depend on the public by making in order to speculate and who resort to the commission of great frauds. We hear of it constantly, and it is impossible, unavoidable. But yet after all, it comes back to this: we must see that we put honest and competent men into office to guard against these occurrences in spite of all the ingenuity and understanding they can bring to bear on the particular object. Yet if it should turn out that unavoidably, if you please, the parties should sustain a permanent injury, ought there not to be a power somewhere by whom justice could be done to him and he should receive an equitable compensation for this extra loss? And then it comes back, as I before remarked, sir, whether or no a legislature would not be a safe repository and take care of the people in these respects.
MR. BROWN of Preston. Mr. President, I am opposed to any change in the clause before the Convention. I believe, sir, if that change is made there will be "hard-pan" in every contract, and I further believe, sir, that there will be "extra" bills enough to take advantage of this thing. I am utterly opposed to any change in the language of the clause under consideration.
MR. LAMB. We are obliged necessarily in making provisions in the Constitution to adopt general regulations. We cannot adopt any general regulation either in a constitution or any law but what the ingenuity of men can point out some hard case that will arise under it. It is a necessary consequence of all general regulations. There will be some cases in which they will operate with some hardships. It is sufficient for us, therefore, to shape our regulations so that they will be in the general results, in the multitude of cases beneficial to the public. If we have accomplished this end we must overlook the particular hardships which in some individual case will arise under every law that can be enacted. Let us see, however, what is the precise effect of this clause. Suppose a man has entered into a contract with the State under a mistake of fact. Suppose that is apparent: what is the proper course then to be taken? This clause does not prevent the legislature from assenting, if he represents the matter at once to the rescission of that contract. When he has shown to the legislature that the contract was entered upon under mistake of fact, he can apply to them to rescind the contract. Then it would be put up again and all would have a fair right to bid for it again, with the knowledge thus obtained and he would have the right to go on with that contract, having found he had entered into it by mistake and then come forward before the legislature to show that "this appropriation must be made or injustice will be done me." Then again, if you put it into your laws that the legislature cannot grant extra compensation, you do insure that there will be the utmost care in making these contracts. These hardships will very seldom arise, because men knowing that the compensation is a fixed thing and that the legislature itself cannot alter it, that even if they find they made the contract under mistake their only resource is a rescission of it out-and-out and let the public bid fairly for it - they will be very careful to know what they are doing before they enter into these contracts. One great public benefit will be secured by assuring that such care has been taken and that contracts are not bid for except by competent men who honestly intend to perform the work for the price they offer for. I can see that a little ingenuity will enable a man to imagine difficulties under any law. This provision it strikes me will not present any greater difficulties or any more or any greater hardships than most general laws do in some case or other.
The question was taken and the motion to strike out was lost, and the section was then adopted.
The next section was reported:
"37. Any officer of the State may be impeached for maladministration, corruption, neglect of duty or any high crime or misdemeanor.
The house of delegates shall have sole power of impeachment. The senate shall have the sole power to try impeachments. When sitting for that purpose, the senators shall be on oath or affirmation; and no person shall be convicted without the concurrence of two-thirds of the members present.
Judgment in case of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit under the State; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment according to law.
The senate may sit during the recess of the legislature for the trial of impeachments."
MR. SINSEL. Mr. President, I propose in this section to strike out the word "impeached" in line 232 and all after "misdemeanor" in the 234th line and insert in place of impeached "removed from office by indictment and conviction thereof." It would read then thus:
"Any officer of the State may be removed from office by indictment and conviction thereof for mal-administration, corruption, neglect of duty or any high crime or misdemeanor."
Now it does seem to me that in a country like this we should have no privileged classes. The lowest peasant is liable to indictment, conviction and the severest punishment for any crime. Now, if they are liable, why should not persons be in high places. Retain this section as it is: if any officer of the State is guilty of any of the crimes enumerated here, how will the common people get at him? An officer might injure me very much; he might by his corruption or mal-administration wrong me to the amount of a thousand dollars, and I might be able to prove it. Yet I might be worth nothing. How am I to "impeach" that man? It is just saying: go ahead and do as you please. If he should happen to act corruptly with persons in high position, he might be in danger. But the way it stands here, the common people will have no guaranty whatever. Now, if any of these officers should be guilty of any of the crimes enumerated here why not indict him in our circuit courts. Then he would have a regular trial and if convicted by twelve disinterested men, why remove him from office. Then he is come-at-able. But to retain it as it is, it is virtually telling him to go ahead, they can do nothing with him.
The hour having arrived, the Convention took a recess.
MR. BROWN of Kanawha. Is a motion in order?
THE PRESIDENT. When the Convention adjourned it had under consideration the thirty-seventh section. By leave of the house the gentleman can offer it.
MR. BROWN of Kanawha. I hold a letter of credentials in behalf of Benjamin H. Smith as a delegate in this Convention from the county of Logan signed by a number of individuals and accompanied by a letter from Colonel Gilbert who says the enclosed was handed to him by the signers. I move, sir, that Colonel Smith without a reference to the committee be admitted to a seat in this Convention.
The Clerk reported the papers as follows:
WHEREAS, No election was held in the county of Logan for a new State and delegates to the Convention, as prescribed by the ordinance for that purpose, nor could any isuch election be held on the 24th of October last on account of the hostilities of the country.
The undersigned, being citizens and voters of said county, desire to express our wishes for the new State and do hereby appoint Benjamin H. Smith, Esq., (with whom we are well acquainted as a man of character and legal ability and whom we know to be acquainted with the interests of the people of Logan) and request that he shall act as our delegate to said Constitutional Convention for said county, and that he may be admitted to take his seat as such as fully as if duly elected.
Given under our hands, this day of November, 1861.
BENJAMIN W. WHITE JAMES D. PARRY JAMES M. WHITE BALLARD PARRY BALLARD WHITE JASPER PARRY GEORGE CLAYPOLE C. BALLARD WILLIAM CLAYPOLE R. D. BALLARD CALVIN BURGUESS C. BURGUESS LIN BURGUESS A. BROWNING JEPSON BROWNING
Headquarters 44th Regiment O. V. M.
Camp Piatt, 13th December, 1861.
Benjamin H. Smith,
Charleston,
Dear Sir:
The enclosed document was handed me by the signers thereof to be forwarded to you. My experience here leads me to believe that Governor Peirpoint should organize the militia of this part of the State for the purpose of home protecition. The organization of regiments for the United States service draws away from their homes the young fighting men who ought to be organized at home. The 8th Virginia regiment is largely recruited from Boone, Logan and Wyoming; and the result of the withdrawal of so many Union men from that section is to render the opposite party predominant; and they have stripped the families of the Union men who have left and are threatening others. One difficulty I labor under, and which every commander, no doubt, feels is that of discriminating between the active rebels and the sympathizers. I have thought that if the militia were organized we could call upon their officers for guides and scouts; or on making a movement have them called out as auxiliaries. I uniformly refuse to arrest any one unless the proof is in hand. Big charges won't do! If the 8th Virginia regiment had been stationed here, I could have found in its ranks men from every neighborhood. could know who to trust and who to arrest.
With much respect, yours,
SAMUEL A. GILBERT, Colonel.
MR. BROWN of Kanawha. I asked the reading of Colonel Gilbert's letter that it might be seen how it comes to Colonel Smith. Colonel Smith resides in Kanawha county and I know has practiced law in Logan, has been an old practitioner there long before I was at the bar. I presume no man is better acquainted with the people of Logan, a large number of whom are his clients, than himself. I imagine it would be very difficult to get any responsible man to come here from that county to represent them owing to the fact that such a person would have to sacrifice everything he had and invite aggression by small marauding parties. Those are the difficulties the people of Logan labor under and the reason I imagine that drives them to the necessity of selecting a gentleman to represent them who lives out of the county. I hope therefore it will be the pleasure of the Convention to extend to the people of Logan the privilege of being represented in this body.
The motion was agreed to and Mr. Smith admitted to a seat.
MR. LAMB. When the Convention took a recess this morning it had under consideration the thirty-seventh section of the report, or rather the amendment which was offered to that section by the gentleman from Taylor. I think that amendment is founded, in some measure, on a misapprehension in regard to the plan which was contemplated by the committee. It certainly never was contemplated that the removal by impeachment should be the only manner in which officers should be removed. It is one only of the different modes in which officers are to be removed. If you look through the reports which have been presented to the Convention, you will find in the report of the Committee of the Judiciary a mode of removal suggested there. I believe in the report of the Committee of the Executive Department there is also something upon this subject. And in addition to all this, the thirty-sixth section of the report of the Committee of the Legislative Department, which was passed over this morning, provides that in cases not otherwise provided for in the Constitution the legislature shall prescribe by law the manner in which the officers of the State shall be removed. The question is, then, simply whether the impeachment should be preserved as one of the modes, not as the exclusive mode of removal. The manner of removal which is suggested in the amendment of the gentleman will be very appropriate, it strikes me, in certain cases; it might not answer in all. At any rate, there is nothing inconsistent at all with adoption of a provision of that kind as a distinct and separate provision at the same time we adopt the thirty-seventh section.
I have a little to say in favor of the mode of removal by impeachment. It has been adopted in the Constitution of the United States; it is adopted almost universally in the constitutions of the states; and with the experience and knowledge I have in reference to that matter I could not undertake to say that a provision so universally adopted in other states was unnecessary and improper as one of the modes by which delinquents in office should be got rid of. Adopt it as the exclusive mode to the exclusion of all others, and I should be like the gentleman from Taylor utterly opposed to it. But some provision of that kind must be adopted and incorporated somewhere in our Constitution; and a provision which will leave it to the legislature to provide for the appointment and removal of officers in cases that are not otherwise exclusively regulated by the Constitution is an essential and necessary provision. The thirty-fifth section contained that provision. The substitute which I offered this morning for the thirty-fifth and the eleventh sections contains a provision of the same kind. If I were compelled to choose, therefore, between the modes of removal by impeachment and the amendment which was offered by the gentleman from Taylor, I should take the amendment of the gentleman from Taylor. But I do not see that one is, or ought to be considered a substitute for the other.
MR. BROWN of Kanawha. Mr. President, I think there can be no doubt about the fact that this provision in this thirty-seventh section is intended as an additional security against maladministration and bad conduct of officers; but this does not at all prevent the indictment and prosecution of every officer. No individual is screened from prosecution because he is an officer or liable to impeachment for a less offence. But the very object of this section is to secure to the country the means of getting at men whom you find much difficulty in prosecuting and establishing crime against. It places it in the discretion of this body with larger discretion a great deal than a court would be confined to in its adjudication in the fact whether the offence was really committed or not; and all the gentleman proposes in his amendment is fully attained by the provisions of the law and the Constitution and this is but a cumulative and additional one.
MR. SINSEL. You will perceive, Mr. President, from the wording of this section that it has reference to state officers, I presume exclusively; so this will not apply, as I understand to governors (?), any county officers or anything of that character, but simply to the state officers; for instance the governor, the lieutenant governor (if we should have one), the secretary of the commonwealth, the auditor, treasurer and so on embracing all the state officers. I would prefer having this thing settled all under the head of the "judiciary" for I think it properly belongs to the courts; but as it is here and only has reference to the state officers, what other mode will there be suggested or has been suggested to get at these state officers in any of the other reports? None. The judiciary refers to judges there, and so on county organization may refer to county officers, and one department to one and another to another, leaving this kind of officers only to be tried in this manner by impeachment. Well, now, if they are found guilty of either of the offences mentioned in this section by indictment and conviction, they are punished then for this crime as an individual; but what becomes of their office? They still retain this high position in society; have the whole public moneys - the treasurer might at his disposal; the governor might go on with his maladministration and be indicted as an individual but still holding his office; and who would get at him? How would you remove him by this impeachment? Who would arraign that man before the legislature if he was guilty of a crime but a humble citizen in his maladministration or corruption? Where is the humble citizen that could arraign and successfully prosecute him before the legislature? He might have the evidence all around him to convict that man beyond a doubt and he might be convicted and still go. Well, now, if upon this conviction his office should be declared vacant - if the judge in pronouncing judgment, in addition to the penalty prescribed by law for such offences - and if this amendment is adopted here, why the striking out of the balance of the section will follow as a matter of course. That goes on and prescribes the mode in which these high functionaries shall be tried. So I think this impeachment would amount to an impracticability.
MR. LAMB. One consideration which I neglected to mention when I was up: that it may be necessary to preserve the remedy by impeachment. Incapacity is an imaginable offence. You cannot indict a man because he is incompetent. I find that in all these states in which the remedy by impeachment is preserved they provide other modes for the removal from office. I believe it is the case in this State in which the clause we are introducing is contained in the Constitution, providing that "The governor, lieutenant governor, judges and all other offending against the State by maladministration, corruption, neglect of duty or other high crime or misdemeanor, shall be impeached," etc. It is not construed in any case to prevent other modes of removing parties from office. Another constitution I have here contains the usual provisions in regard to impeachment and an additional clause: "The legislature shall provide by law for the trial, punishment and removal from office of all other officers of the State by indictment or otherwise." I should have no objection to have a clause of that kind added as an additional provision and might even consent to the proposition of the gentleman from Taylor as a substantive provision standing by itself but not to that part of his proposition which goes to strike out the remedy by impeachment. It appears to me that the proposition would stand much fairer before the Convention if offered as a distinct and additional proposition.
The question was taken on Mr. Sinsel's amendment and it was rejected.
The question recurred on the adoption of the section.
MR. STUART of Doddridge. I move to amend by inserting the words "or incompetency" after the word "corruption." If a man gets in and is incompetent to perform the duties of that office this section provides no remedy by which he can possibly be reached.
MR. LAMB. I was going to offer the amendment myself. I think the word ought to be there or its equivalent.
MR. STUART of Doddridge. I do not care who offers it, I want to vote for it.
The amendment was agreed to.
The question recurring on the section as amended, it was adopted.
The thirty-eighth section was reported as follows:
"38. No act to incorporate any joint stock company, or to confer additional privileges on the same; and no private act of any kind, shall be passed, unless public notice of the intended application for such act be given under such regulations as shall be prescribed by law."
MR. POMEROY. I move its adoption.
MR. SOPER. Mr. President, I move to strike out the words "joint stock" so that it will read: "No act to incorporate any company or confer additional privileges on the same."
MR. LAMB. I would like to understand more distinctly the bearing of that. Are there any companies except joint stock companies?
MR. SOPER. I suppose there are, sir. I suppose there are. An individual may have a company, an incorporated company, and may have powers to protect him in carrying on banking business or other business. Now a joint stock company is a company where there are several individuals who unite portions of their property for a particular object. I believe the safer way is to have no act of incorporation of any kind passed without proper notice being given for it.
MR. BROWN of Kanawha. I cannot go for the amendment of the gentleman, which seems to be to extend this restriction on the legislature: because I believe the whole section is a restriction that ought not to exist. It seems to me that the tendency is to tie the legislature up until it will have no laws to make and we will have no use for a legislature at all. That you can get along in any country, in this country, without joint stock companies - the history of the country has demonstrated the fallacy of such an idea. They are essential as the sun or the changing seasons almost to our national existence, to our institutions - a part and parcel of our society. The unnecessary restriction of the legislature in granting an extension is certainly an evil. What would be the effect of requiring this notice of intended application? It will be to trammel the legislature and defeat the design we have. The notice will be hidden away, perhaps covered up by some of the many notices stuck up to catch the votes of the people. Who will ever find it? While the honest yeomanry who will come up here for this legislation and the extension of these privileges to meet their wants will always be turned away from the fact that they have not complied with the prerequisites. If you have no confidence at all in the integrity of the legislature, withhold from them every power. If the representatives of the people to whom they are directly responsible every year have any knowledge of the wants of their constituency, why trammel them with this notice? I am satisfied these trammels only defeat the main end, that is the legislation for the benefit of the community, and places the whole of it in the hands of those who are far-sighted enough to see at a distance what is to take place.
MR. LAMB. Mr. President, I hope it will be the pleasure of the Convention to adopt this section, for although I assent to the proposition that joint stock companies are very necessary for many purposes yet this thing of getting them up in private - this thing of getting up joint stock companies without the people in their neighborhood knowing anything about them, and getting them from the legislature privately - I am utterly opposed to it. Suppose they are necessary, what harm is it to require that some notice should be given before the application is made? Is that depriving the legislature of all power? Is it not fair and right? A set of men come before the legislature and ask them to confer on them special privileges. Is it not fair and right that the people who are to be affected by that should have some notice that such an application is to go before the legislature? The legislature will regulate when and what manner of notice shall be given. No doubt they will do that wisely and so as to impose no unnecessary burden on them. What I trust they will have the right to do and will do, but in such manner as to prevent private applications, which as we know has often been the case get through the legislature without the people in the neighborhood knowing anything about them. Such occurrences have been too frequent in this country not to require some corrective and it strikes me it is as moderate a restriction as we can impose on the practice. It is simply that before the application is made such notice shall be given of it as the legislature in their wisdom may think necessary.
MR. PAXTON. I would like to inquire of the chairman of the committee whose report we have before us whether this section does not bring up the whole question of corporations and joint stock companies. It appears to me that it does and that this section would imply that they are to exist by special laws. I apprehend that there may be a disposition on the part of some of the members of this Convention that corporations and joint stock companies shall exist only hereafter by general laws as in other states. I presume the adoption of this would imply that they are to exist by special laws. I rise for information, to know from the chairman whether I am correct in that opinion.
MR. LAMB. I do not know, of course, what propositions may be submitted to the Convention; but until some proposition of the kind indicated by my colleague from Ohio has passed the Convention it is certainly proper to provide that if joint stock companies are to be incorporated by special laws they should only be incorporated after notice of the application has been given. If it should be the pleasure of the Convention hereafter to adopt another system in regard to joint stock companies of course it may or may not supersede this provision. It is sufficient to consider the matter at present before us.
MR. PAXTON. Then I understand the adoption of this provision would imply that joint stock companies are to be incorporated by special act? Whether after this Convention are prepared to adopt that provision -
MR. LAMB. No, sir, I do not think that question necessarily comes up at present.
MR. PAXTON. I should think the adoption of this section would imply that.
MR. HERVEY. I think the Committee on Taxation and Finance has had the subject under consideration and has made provision the kind intimated by the gentleman from Ohio should be adopted as a part of this Constitution, of course it would conflict with that section if we adopt it. I therefore move to pass by for the present.
The motion to pass by was not agreed to.
MR. BROWN of Kanawha. Mr. President, the allusion made by the gentleman from Ohio (Mr. Lamb) to the evils arising from passing private acts: now, sir, this law will accomplish another evil and I think a greater one that whenever parties find themselves by failure to give notice as proposed, they will make a private application under a general cover and you will have your whole legislation for private matters assuming a general form and general laws. I can give an instance of it that occurred yesterday where the member from one of the counties in the legislature spoke of the case of a deputy clerk who had kept the books and had certified and examined them in the place of a clerk who had gone to "Dixie," and he asks for his pay for the performance of his duties that the clerk should have received, and the auditor declines paying him because it is alleged there is no law authorizing him to pay; and the legislature has passed a law authorizing the paying of all deputy clerks who have examined the books and certified them in lieu of the clerks who should have done so. Now, there is a general law made to meet the particular case; and this point the gentleman is seeking will be foiled at every turn by the ingenuity of gentlemen; and instead of your laws having a private they will assume a general character. I think it is better to let the legislature be without any of these trammels.
MR. POMEROY. Did you make a motion to strike the whole section out?
MR. BROWN of Kanawha. No, sir; but I will vote against it, which I consider will be to do the same thing.
MR. POMEROY. There is a question pending on the motion of the gentleman from Tyier, to strike out the words "joint stock."
MR. BROWN of Kanawha. That makes it worse than now.
MR. SOPER. The object I want to get at is this: that the legislature shall not grant any act of incorporation to an individual for any purpose whatever in the State unless notice shall have been given. The kind of notice I think they ought to give would be this: if we have a paper in the State called a state paper a notice of the application ought to be published in that paper for six weeks successively and it ought to be published in every county where there is a newspaper in which the incorporated act is intended to operate. The object of this, sir, is to prevent the giving of privileges at the expense of the community at large - that the people who are to be affected by it either beneficially or otherwise shall have notice of the application and that they shall understand what its probable effect will be on their interests. Now, I believe that the experience of legislation has shown in other states, if not in this, that a notice of this description is of the greatest importance: and it has been followed up I believe more recently by doing away with special applications to the legislature and getting what they call now general laws by which individuals without any application to the legislature at all can combine their capital together and use it for almost any purpose. But we have not got the subject of a general law now before us; but we have got here a very plain proposition that public notice shall be given, such notice as the legislature shall think necessary. It is intended for the protection of all parties and to prevent surprises; and I think it is a wise provision and I am in favor of it but I want it to apply to all acts of incorporation. I know an instance where the legislature refused to grant a village incorporation because certain notices had not been given. I believe that was a notice required by some rule of their body. Notice had been given at the place and at several places where the intended amendment was wanted for operation.
Now, sir, I would strike out these words in this section and I would strike out the word "private acts" too, because I cannot see any necessity of publishing a notice in a newspaper or anywhere else of an individual who wants a private act passed, but in all acts of incorporation, the wisdom of legislation has discovered that it is a necessary precaution to have this notice given. A number of weeks at least before the session of the legislature or before their presentation of a petition of the legislature for the act of incorporation.
MR. STEVENSON of Wood. I only wish to make a remark or two in reference to this subject. I may state that I am in favor of retaining the substance at least of this section. I agree with the gentleman who last spoke - the gentleman from Tyler - that it seems not altogether proper to apply this same principle to private acts that we propose here to apply to joint stock companies. However, upon that I shall not say anything until I hear what may be said in favor of the proposition as it stands. I feel this way, sir, in reference to this whole matter, that if it is possible to adopt a provision in this Constitution by which such matters may be brought under the operation, of general laws, I would prefer it and I think the Convention would. But so far as measures of that kind are concerned they are not yet entirely a success and until they are, until we adopt provisions of that kind that work well and work satisfactorily in a majority of cases we must have the incorporation acts to incorporate companies with special privileges, special laws for the incorporation of companies of this character. In some states they have already general laws for company purposes. They have in Pennsylvania and in some other states what they call a general manufacturing law; and they have in some states general laws under which gas companies operate and under which they organize bodies of men to prosecute that particular business: and so the principle, I think, is working successfully into all the legislation of the different states. But I do not know that there is any state that has abandoned entirely, or even to any great extent, the principle of incorporating by special laws companies for these different purposes; and as long as it is the practice of the different states to grant these special privileges, it seems to me an absolute necessity to accompany that practice with restrictions of this kind. Now, sir, I believe they have adopted them in all the states and I am aware that they are abused, that they are not restricted to the extent which the law intends they shall be restricted. The fault is not with the law. The abuse would be worse, the injury greater, if there were no laws, it seems to me, on this subject. It is in spite of the existing law and not because it does exist, that these abuses take place; and, therefore, sir, I am opposed to striking out the section; and I feel inclined to favor the amendment of the gentleman from Tyler. I am aware, sir, in point of fact it may be said that there is no company that is not a joint stock company; but yet technically or legally speaking there may be companies that are not of that character. It seems to me that an ordinary mercantile firm or a manufacturing company -
MR. LAMB. They are joint stock companies.
MR. STEVENSON of Wood. Not in the sense in which it is used generally. The concerns are not put out in shares and sold in the market; and I do not think it would come strictly in the meaning of a joint stock company although it might be so in reality. But even if there is the least doubt on that subject it seems to me the striking out of these two words will prevent any difficulty on the subject and reach the matter exactly as the friends of this section wish it to be reached. It will then prevent any company from getting special privileges of any character unless they have given the notice that is specified here.
These are considerations, sir, which induce me to favor the adoption of the clause either with or without the amendment.
MR. SOPER. To meet the views of some gentlemen, I will withdraw the motion to strike out the words "joint stock" and add the words "or other company," so it will read: "No act to incorporate any joint stock or other company."
MR. LAMB. I was going to remark that I attach exceedingly small importance to retaining the words "joint stock" company. I doubt after all if those words are stricken out whether the gentleman will accomplish what seems to be his only object. He speaks of an incorporation consisting of an individual. Does not the word "company" include more than one? Can you make a company out of an individual? Have you not got the same difficulty in the section that you had before? However, I have no objections at all that those words should go. I hope the words "private act" will not be stricken out when that question comes up, for there is a variety of private acts in which notice can be given; but we will leave the discussion of this part to the legislature. There have been acts applied for in this State asking that property be exempt from city taxation - church property: they will apply to exempt that from taxation. A variety of acts can be passed conferring special privileges upon particular individuals; and where that is the case the same reason exists for notice that does exist in the other case. A private act will very seldom be asked for unless it is to confer some special privilege on the individual at the expense of the community. The community ought to know that such an act is to be brought up for the consideration of the legislature.
THE PRESIDENT. The first amendment being withdrawn, the question is on the adoption of the amendment last offered by the gentleman from Tyier.
The question was taken and the amendment rejected and the question recurred on the adoption of the section.
MR. SOPER. Now, sir, if I understand the section, no act of the legislature can be passed at all without a notice previously given: no private of any description. And although there may be private acts got through that might be introduced, yet I think this clause is too comprehensive in its meaning and I shall move to strike out "and no private act of any kind." Strike out those words.
MR. STUART of Doddridge. Mr. President, I am in favor of the motion of the gentleman from Tyier from the fact that I think this is an unnecessary restriction and one that will lead to great inconvenience in many instances in which it will be necessary to pass private bills for the relief of private parties, incurring unnecessary expense on the party who applied for it. Now for one or two practical illustrations. There have been one or two private acts applied for before our present legislature - two that I know of. One was for the relief of a gentleman in the county of Upshur who was robbed of his money the other day by the secessionists. He comes on here and makes it appear that the money was taken. It is an unnecessary expense that he shall go on and publish a notice and perhaps the legislature will adjourn and he not be able to get it, when everybody will be willing to afford that gentleman relief. Another is that under an ordinance of our late convention which authorized parties to pay in their taxes against a certain time and receive a discount of ten per cent. Our sheriff went on and collected; he had so many days to pay it into the treasury. He starts the money by express and through misfortune, the railroad breaking up in some way, not being able to make connection he is unable to get his money here at the very hour. Well, sir, it is necessary that he should have an act granting him the percentage which the auditor refused to allow not from any fault of his own but from causes over which he had no control in the world. Now, if you pass this, before a party under circumstances of this kind could obtain relief he must go on and publish a notice that he is going to make an application, making the additional expense to parties, which I suppose ought to be remunerated to them also. I think it is an unnecessary restriction. I shall vote for the amendment of the gentleman from Tyier.
MR. BROWN of Kanawha. The more I think about this subject, the more I am satisfied the only effect in the world this section can have is to annoy, harrass and trammel the legislature in the performance of its duty, which is to make laws to meet the wants of the community. Now, sir, the gentleman who has taken his seat has alluded to one case. There are several others that have come under my observation now transpiring. This legislature have passed bill for the relief of this clerk and that clerk and this officer and that officer that have been elected about the country and who from circumstances over which they had no control have failed to qualify in their offices within the time prescribed by the general law. It is a continual succession of people coming up for bills to relieve them against misfortunes which could not be foreseen. In every case under the operation of this act you have got to go back and publish a notice. When a man goes to bring a suit, he has the law before him; and if there is any intermediate expense he is compelled to bear, he can take his own judgment and get the aid of counsel whether it is worth while to risk his money because if he succeeds he will recover it back. But you give notice and who do you give it to? What boots it to give notice to the people? The legislature will have notice when it comes before them. But you put the parties to the expense of publishing notice to the world of their applications to the legislature and then when they make their application to the legislature, the legislature will just cast it aside from their mere volition. They are under no obligations, and you subject the parties to these unnecessary expenses beforehand to obtain the consent of the legislature in adopting what he asks or which they in their supremacy may choose to refuse. And where is the remedy of the party? It is an injustice to him. Now whenever you by law prescribe a man's rights and prescribe a course of action, he can ascertain whether it would be worth while; but here you are acting on the mere volition of the party. And this notice, when given is only a notice to the people and but a small portion of the people. All they could do would be to communicate the fact to their delegate that they were for this proposition or against it. He is the very man that is to receive the notice before he can vote on the question. You are putting the party to an unnecessary expense, producing the chance of defeat to a measure which ought to be carried, by a failure to give notice, and give it to a constituency when they are not the persons to decide the question. So that in every point of view it seems like public policy requires that this whole section should be stricken out.
MR. POMEROY. The question before us is just to strike out a certain part. I pretty near agree with the gentleman that it ought to be stricken out; but I think this in regard to private acts ought to be stricken out. It certainly will do no practical good but lead to annoyance and trouble; and I can see no good that can be accomplished by it. We ought to be careful to do nothing that has no practical good to result from it. And I can see why this ought to be stricken out and I am in favor of the motion of the gentleman from Tyler to strike this part out.
MR. HERVEY. I shall vote to strike out the words and then the whole section, for the reason that when this report comes up as a whole it can be reinstated and perhaps at a future time the Convention will be better prepared to act on this question than just now.
The question was taken on the motion to strike out the words "no private act of any kind" and it was agreed to and the question recurred on the section as amended.
MR. BROWN of Kanawha. The act now as presented to the Convention is nothing more nor less than this in effect that we have required that all private acts that no notice shall be given by parties applying for private acts; but now the question as it stands requires it for public acts, and if for any, why not for all public acts? Why require parties for a joint stock company in which the public are concerned? If it were to build a railroad, turnpike, canal or any other internal improvement in which the public are concerned, the representatives of the people are there to act and decide on it. Why require you to go through the forms of giving notice beforehand all over the community when the representatives of the people are in the house with a full knowledge of the whole subject does seem to me that it is tying up the hands of the legislature and not tying them effectually but only trammeling them and annoying them, because with all this annoyance they may work it out by delay. But then the wants of the community are suffering in the meantime and all for a mere formality. If there is any place where there should be no trammel it is the legislature. The delegated powers ought to be left free to exercise them. If it is not the intention to give them power to act fully and freely, withhold it from them to act at all. If competent to decide on a question, they are as competent before as after notice. It seems to me in placing it in this attitude, if no notice is required for private acts much less should any notice be required for public acts, and therefore this ought to be stricken out also.
MR. SOPER. Mr. President, it has been a subject of complaint as long as I can remember of this conferring upon individuals special privileges by which they can unite their capital so to use it among the people at large as to enrich themselves at the expense of those people. Take for instance a banking incorporation if you please, or ferries, or any other act that may be required: now the objection that is urged, as I understand it by the gentleman is that you are trammeling the legislature; that you should leave the safety of the people in the hands of their delegates. I apprehend that this is a mistake. I have known, sir, myself where I have lived of applications made year after year for acts of incorporation and they were unable to obtain them. Why? It is to be obtained by so working and managing as to get a friend of your particular object you have in view into the legislature and if you can privately get your friend there and there is no public notice given by his ingenuity in the legislature he may get the very thing which the people in the neighborhood may be very much opposed to. Now, again, sir, talk about the expense; why there is nothing in that. The expense of a notice would not amount to five dollars, and what is that to the advantages to be derived from an act of incorporation? It does not enter into the account at all, sir. You take and retain this section, and if gentlemen by their management get an advantageous act of incorporation which will not prove satisfactory to the people whose business is carried on or upon whom it is to operate - 1 say if there is an act of this kind obtained those people ought never be permitted or would not or could not raise any objections if they had received a full and fair notice of the intention of the parties before the application was made and the act was obtained. Now, sir, the object of this notice is this: If it be for a beneficial purpose that the people may unite in petitioning for it. If it be for a purpose that is beneficial in the neighborhood where it is intended to be, then it enables the people to remonstrate; it gives them time to get up their remonstrances, to get up their meetings, to have resolutions and remonstrances signed and sent on to the legislature at their opening so that they can meet the application at the time it is made and have the whole matter come before the committee at once. I am satisfied, sir, that this is a very wise provision of giving notice; and there are a great many private acts where undoubtedly the notice ought to be given but I made that motion to strike this out because they are few comparatively and the evil resulting from the want of it probably would be less than the inconvenience given to the great mass of the public who want acts passed for their benefit particularly those that require immediate action, and I could not see how to discriminate. But I am opposed to any act of incorporation for any purpose unless this public notice has been given so that the people at large may be apprised of the application and either give their assent or their dissent, or have an opportunity to do so. It certainly can work no evil to the legislature. Gentlemen in applying for this company will know what this provision is. They will have everything prepared for the session of the legislature. It cannot throw any obstacle in the way of the legislature at all. And, sir, this is the object of general laws, as I understand it is to prevent the accumulation of legislation. Now, sir, in the history of states that have adopted these general laws, I believe their legislatures have been run down with these repeated applications for acts of incorporation; and they who have got these acts of incorporation are generally connected with large moneyed capital and they have got their friends to besetting members of the legislature in order to carry their acts of incorporation - got their lobby who are paid from one source or other. And it has been considered a grievous system of legislation, as it excludes the private individuals who could not use the means to operate on gentlemen in the legislature to do their business to the exclusion of these large and rich applications. That has been one great reason, sir, which has led to these laws on private incorporation. And even here since they have been in operation, the ingenuity of men who have managed the capital in this way has got advantages which the people would be very glad to get rid of now in many instances where they exist. I am satisfied no inconvenience to the legislature can occur. They will not be retarded. They will be accelerated and aided in the performance of their duties for the reasons I have before given and the mere expense that is talked of will not be looked at. I am in favor, sir, of retaining the section as it is.
MR. STUART of Doddridge. I am very much in favor of the resolution as it stands now amended. I am more in favor of the latter clause. It recommends itself peculiarly to me on that account. It says "or to confer additional privileges on the same." All gentlemen who have watched the operations of our legislature of Virginia will see, sir, the influence and control the incorporated companies in Virginia have had over our state legislation. Generally about the winding up of the session there has been more champagne and port wine used by these incorporated parties for carrying through their measures at the heel of the session than will perhaps be imported for many years, especially if the blockade is not raised. Now I am in favor that before additional privileges shall be conferred on these companies that they shall give notice of at least six months in order that the people shall know the object and intention of them. Why these incorporated companies, sir, have been almost the ruin of our country. I believe it has been the incorporated companies that have brought upon us the large state debt we now have. If they had been properly restricted and the people had been made acquainted with the bills that have passed for their especial benefit they would have instructed their delegates and it would never have been done. Give the people notice and stop this legislation, this kind of "log-rolling" which is gotten up at the end of the session. I never want to see such a state of affairs inaugurated in the new State of West Virginia. And I believe this will be a great remedy for legislation of this kind. If they desire special privileges, let them give proper notice so that the constituencies of the legislature will know how to instruct them. Now, you all know that it is a fact that these things have used and these incorporated companies have held great influence in controlling our state legislature - a kind of log-rolling system they have had; and I believe the adoption of this provision will have a great tendency to check that thing; and for that reason I will support the section as amended.
The question was then taken and the section adopted.
The next section was reported as follows:
"39. No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be restrained, molested or burthened in his body or goods, or otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess, and by argument to maintain, their opinions in matters of religion; and the same shall in no wise affect, diminish or enlarge their civil capacity. And the legislature shall not prescribe any religious test whatever; or confer any peculiar privileges or advantages on any sect or denomination; or pass any law requiring or authorizing any religious society, or the people of any district within this State to levy on themselves or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make, for his support, such private contract as he shall please."
MR. LAMB. I presume there will be no difficulty in regard to this section. It embodies in the Constitution the act of religious freedom drafted by Jefferson. The same provision in the same words is contained in our present Constitution. It is not often I quote that. I must, however, confess the authority to the Convention.
The section was adopted.
The fortieth and forty-first sections were reported and adopted without comment as follows:
"40. The legislature shall not grant a charter of incorporation to any church or religious denomination; but may provide by general laws for securing the title of church property so that it shall be held and used for the purposes intended."
"41. The legislature shall confer on the courts the power to grant divorces, change the names of persons, and direct the sales of estates belonging to infants and other persons under legal disabilities; but shall not, by special legislation, grant relief in such cases."
The forty-second section was reported as follows:
"42. The legislature shall pass laws to protect the property of the wife against the acts and debts of the husband."
MR. BROWN of Kanawha. Mr. President, I must enter my dissent against this proposition. It is in violation of the law of our land. It is introducing a division of goods and chattels, rights and credits, interest and assets, and I have no doubt, carried into effect, will introduce a division into the household. The fundamental doctrine of law that has come down to us has ever been held in this State that man and wife are one and the same; that all their property is common; that they take each other for better or worse; they cast their fortunes together and their destinies as well as their assets: and I am satisfied, sir, from past experience that it is best. This introduction of this new idea - I believe it is a French one - of separate assets in the wife, in legislation and all that, prevails in the code of Louisiana. I have had some intercourse with gentlemen there as to the way it works (with doctors and lawyers) and one of its operations is that one man sets up to manage the estate of another man's wife. That is one of the highest objects to be attained in a professional character. The tendency of it is to create that state of dependence on the part of the husband towards the wife, if the wife owns the property and wears the "breeches" and is protected in the whole management and supervision of it. That is inconsistent with the relationship they bear. I presume gentlemen of the Convention read the paragraph that appeared not very long ago in some of the Louisiana papers in which there was an account of a gentleman whose wife lived in style, who goes to a tailor to get his breeches patched with an order from her that the tailor can do it and she will pay for it. Now, sir, that is indicating just the state of things this legislation tends to bring about. But again I hold it has another evil tendency. You see a wife with a large property, and the parties live together. To the uninformed portion of the world there is a gentleman of fortune. Business transactions are carried on, debts incurred, liabilities assumed; and the community everywhere who are not conversant with this subject trust to any amount without knowing exactly how the relationships exist between these parties; and when pay-day comes, a suit is brought and judgment rendered; the sheriff goes to enforce the judgment and is informed, "This is not my property; it is my wife's." Now, sir, that is the tendency of this state of legislation. I hold if these parties live together, travel life's road together that whatever one has and enjoys the other participates in. If poverty and misfortune come in at one door and fortune and fame go out at the other, it is best that they both go together. If the husband lives on the wife's property on the one hand and she enjoys all the privileges of his property, it is only right that they should all go together and no distinction in property. I desire to see this clause stricken from this Constitution, that our husbands and wives in this land shall stand as they have stood heretofore, "one and inseparable now and forever." (Smiles.)
MR. SOPER. I am in favor, sir, of retaining it, or something very much like it. The old doctrine on this subject, I believe, at the present day - in many states of this Union, at all events, has gone out of use, and this new proposition for the protection of the private property of a married woman has taken its place and has proved very beneficial. In the first place we all know that the female is a person that requires more protection than the male and if she is so unfortunate as to get a dependent husband, or an unprovident one -
MR. POMEROY (in his seat). Or a secessionist.
MR. SOPER. Or a secessionist - very well - I think, sir, that a provision of this kind protecting the female from such misfortunes is a very beneficial one. Now, there are other circumstances, sir, that I could name - instances which I probably may say I have some knowledge of in Virginia and in some other places. Take if you please young men residing in the city of Wheeling, each having married a wife with $5000 of her own money. Two or three of them unite for the purpose of going into a large manufacturing establishment or a large wholesale establishment. Is there anything wrong by any individual to have the law so fixed and have it understood before even these individuals contract any debts - is there any evil that can result from it, sir, by having the fact incorporated in your Constitution and well known and understood that the wife is the owner of that property and that it is to belong to her individually. I apprehend not. The gentleman then goes into trade upon his own $5000 capital, in connection with a company, immaterial how many. And for some cause or other, if you please unforeseen accidents and misfortune, or if you please improper conduct produces a bankruptcy of that business. Now, is it right, equitable and just that the wife and the children who probably have been remonstrating against the course of the husband shall be left helpless and the property they had received from their parents or some other source shall be taken in order to pay those debts that have been contracted either by misfortune or misconduct? I apprehend not. Suppose here is a number of gentlemen that are prudent and economical men and have gone on with a prosperous business and have been so unfortunate as to trust out their means into the borders of secessia and have lost all their property in this unfortunate and wicked condition of things without any indiscretion of theirs. Here is all the earnings of their lives gone instantly, and will you then take away everything the female has and leave the woman without any protection whatever? I apprehend not, sir. There are thousands of individuals in the United States who if it was not for the property placed in the possession of their wives when they were in prosperous circumstances would be dependent on the charge of the public at large for support. And I believe the experience of many business men has shown the wisdom of this provision and I wish gentlemen to take and reflect upon it and have it so understood. Now, I know very well that where a man and his wife live together, the individual may to a small extent represent that he is the owner of the property and may get some credit, and when pay-day comes he may turn over and say the property belongs to his wife. But, sir, if you incorporate it in your Constitution and have it in the laws passed by your legislature, it will not be long until every person in the community understands what this law is, and then the wife has got the reputation of being the owner of the property - and that will become a matter of general reputation because people in the neighborhood will know it and it will be understood and it cannot be used as a secret combination between the two nor get the advantage of innocent individuals. That difficulty cannot arise, sir. And then it comes back to this proposition: Shall we alter the old common-law doctrine on this subject? Then it makes no difference how unfortunate a man was, or how it came he got in debt that not only his own estate should go but that shall be taken away which is taken for the protection of his wife and children; they may lose that also. I am in favor, sir, of this section as it stands. But I want it to apply to the property that belongs to the wife, property that she receives from other sources than through her husband; or if she receives it from her husband it shall be attended with such public acts, recorded in your county, if you please, so that the public at large shall get it. That it shall come from the husband at a time, shall be liable for all debts he was liable for at the time the property was conferred on the wife. I want to protect the community at large. Gentlemen of the Convention will see that the object I have in view is not to aid and assist in the perpetration of a fraud but to prevent the perpetration of a fraud and at the same time protect that class of women and children of an unfortunate man from poverty and want. That is the object of it, sir, and I think it a very wise and beneficial provision in the Constitution.
MR. STUART of Doddridge. I feel like raising my voice in favor of the protection of the female portion of our country although it even goes to parting man and wife asunder, as the gentleman from Kanawha says. I have seen so much evil grow out of this thing, such griefs and bitter wrongs perpetrated on this class of our community that I feel like it is incumbent on me at least to pass some law here in our Constitution to compel the legislature to pass acts protecting the property of the wife against the debts of the husband. I have never had to encounter what I have seen in other instances and I hope never may but I appeal to all the members of this Convention: I presume most of them are husbands and have children. If one of your daughters should happen to marry a man who should turn out reckless and improvident you would certainly desire to place property in the hands of your daughter and that that property should be protected against the acts of the husband and the acts of your son-in-law. If I should happen to leave any of my children and have means to bestow on them, why I would like to have the assurance that my children and my grandchildren, the offspring, would not come to want if I had the means of relieving or preventing it. Unless there is some law of this kind, sir, though I admit frankly the legislature could pass an act without being so instructed in our Constitution; but I want it to be a constitutional provision because it is for the protection of the weaker class, the female portion of our country, sir, who are not prepared and not so well guarded against the acts and frauds of the stronger. Many times you have seen it. There is nothing like illustrating a thing of this kind in order to see the propriety of this action. There is nothing like an illustration, at least, to enforce an argument on my mind. You have many times seen it, sir, that some reckless, loafing fellow will take it upon himself to hunt around for the purpose of marrying some innocent girl who is unaware of the snares and besetments of the world, who is taken in by this fellow. Well, sir, this fellow will dissipate perhaps in a year or two - 1 have seen it done in six months - all the property of his wife; leave her a charge upon the community and the helpless offspring that perhaps will go to the poor-house or some charitable institution. Is it right? Is it proper? Is it not right that this class should be protected? It can do no wrong. And even I think a husband should have the protection and assurance that he could bestow on his wife certain estate if he desired to do it while he was in circumstances to do so, if he did it publicly so the country would know it. I would like if I had the means and had the intention of entering into any speculation, to bestow a portion of my estate peradventure I might be unfortunate, on my wife in order that she might not come to want from any improvident act of mine; and if I give proper notice such as I think legislation would require, under this section of the Constitution, it can work no harm to any living creature but goes to the protection of the wife and her children, and perhaps save the community from having to support and take care of helpless children. A means, perhaps of educating; otherwise they might be thrown on the community ignorant and uninstructed. But if the father and husband, while he has ample means to do so, will in his discretion lay out the means and set apart something in order to prevent his wife and children coming to want. I would like, sir, that after she obtained this property there should be a law to protect her in it. It would be a general good; result generally for the benefit of the whole community; operate against the interests of nobody. But it will be for the protection of the weaker class who are not here to be heard for themselves. I am decidedly in favor of it; will vote for it.
MR. LAMB. I do not intend to argue this question, presuming the Convention is ready to vote upon it; but there is just one point that I want to refer to. The gentleman from Kanawha asks us to adhere to the old common law in regard to this matter. That common law was evidently made by the men - made by one part of the community only it says the husband and the wife shall be one. What is meant by this? Why, simply that the wife have all rights to the property and everything else that grows out of existence; and the husband takes the whole and says the property shall be common. Does this mean that they shall have equal rights in it? Not at all. The property is made common by transferring everything to the husband and leaving no right to the wife. This is a great abuse of terms as well as an impropriety in legislation. A wife ought to have some rights. Besides, when the law assumes that a wife is nobody I take the liberty of saying it is not a fact.
MR. BROWN of Kanawha. The gentleman meets the argument by saying that the common law which has borne the test of many years and has come down from perhaps a thousand past was made by men. Well, sir, that is a high compliment, in my estimation. That the husband and wife shall be one I think is said in Holy Writ - "and they twain shall be one flesh" - and I think He who spake as never man spake said they should be bone of each other's bone and flesh of each other's flesh.
MR. LAMB. It doesn't say that they shall be one by the wife being nobody and the husband being everything.
MR. BROWN of Kanawha. There is very high authority for this unity - the very substructure and basis of all society. Governments may rise or sink but whenever you sink the basis of society on which the government rests you have gone far to bring disaster on your country. Here we have the experience of the past, with all the wisdom of the past, to uphold and sustain this relation and this right of property between the two as united in one. But I hold, sir, unlike the gentleman on my right (Mr. Stuart of Doddridge) that the individual that may care - because there never was a government in which some hardship will not exist arising out of the bad conduct or the misfortune of individuals; but I hold the great object in framing a constitution is not to look to individual instances but to look to the public good and that, sir, is to be secured by preserving the marriage relationship, the sacredness between the husband and the wife; and when you have done that you have enriched your nation; for if you stripped it of every solitary dime in the realm it would be rich indeed if you preserve this, and if you lose it all is lost. There may be particular hardships in the cases enumerated; but the gentleman's remedy is no remedy. Because every one knows the husband will spend the wife's means and he will sit there like a blackguard and use her property as it is doled out from year to year. He will be the same individual living and existing off the property, and the annual stipend that is paid over by the trustee or person who intervenes between them will be the first to absorb it. If he is a drunkard, he may drink, but unless you put him in jail and appoint a guardian and take him away from his wife, you cannot prevent it. That is one of the evils of the man's conduct. One of the great evils to my mind is this very introduction of this feeling of independence of the wife as between him and her. The very thing that makes sacred the relationship between husband and wife is that between them there is no third party. Fathers, mothers, brothers and sisters may have all different interests; but the husband and wife never should have but one; and if you divide their interests you divide their feelings. But you unite the interests of any two individuals, however hostile they may be and it melts away and they coalesce in feeling. It is the same way in communities. Then our object is to preserve sacredly the relationship between husband and wife from which all the best interests of society spring, by not introducing a distinct interest between them that may grow from day to day. Is it possible the wife can have the same respect for her husband when she feels every day that he receives his bread and has his pantaloons patched at her expense? Cannot do it without an order from her? Can the husband feel the same respect and regard for the wife from whom he receives these benefits? Why, sir, to command respect they must entertain a mutual and high regard for each other. We have seen - we know the fact - that if you give to a married woman large estates and give to a spendthrift or worthless husband who lives in her halls that he will continually dupe the most of the community, the ignorant and unsuspecting and always draw them in and live and fatten on their property, and then answer: this is not my property and you should not have trusted me. The wife says it is my property; you must look to the husband. I think, sir, inasmuch as the wife is entitled to her share of all the husband has, and the inexorable mandate of law says she shall have it, the same community of interest ought to exist, and her property should be put into the common fund out of which the dower is drawn and the creditor should have the rest. I am satisfied this doctrine that has been so long in this land and in England is decidedly preferable to this French idea that is lately introduced. And, now, consider another thing and compare the society of England and the United States and France and see wherein the virtue of the family shines brightest. I maintain where this doctrine prevails the virtue of the woman has no comparison to that in which the common law doctrine is maintained. Where the woman takes the husband for weal or woe, where they rise they grow rich together and if they sink let them go down together. I hope to see that perpetuated in this State. Let those who sigh for an experiment in the marriage relation do it out of their own state. I am satisfied you will find that corruption and jealousies and all kinds of misconduct is existing wherever this doctrine is carried out, and the loss of virtue and self-respect will be the consequence. Give me this good old State and good old society as it has come down time-honored and revered by age and wisdom!
MR. CARSKADON. I entirely concur in the opinions enunciated by the gentleman from Kanawha; and I think we would do very wrong in interfering in any way with the relationship of man and wife; and I am perfectly satisfied that any such legislation is an interference or would have that tendency from the relations of man and wife. I admit, as the gentleman from Doddridge has said, that there are, and I have seen many instances myself in which the property has been squandered by the husband; yet, sir, the evils that would arise out of any such legislation are far greater than the good that will be accomplished thereby. For there is not the least doubt that such a state of things would alienate, the affections of the husband and wife and the social relations of man and wife, the enjoyment of domestic felicity, are not to be compared with dollars and cents. And I agree with the gentleman from Kanawha, giving to the wife one third of the real estate is all the protection and the wisest provision, I think, that has ever been originated for the security of the rights of the wife. She has by the common law her third of the real estate and that is generally sufficient for her maintenance and to interfere in any way, I consider the cure worse than the remedy which is proposed to be effected. The gentleman speaks of making a provision in case through misjudgment of the girl she should get hold of the wrong man. I think that is altogether the duty of the girl herself and her parents to see that she is rightly wedded and not the duty of the legislature or Convention to make laws to suit cases. I am in favor of striking out the provision.
MR. HERVEY. It seems to me this section is unnecessary at least. The objection stated by the gentleman from Doddridge it seems to me is already provided for. If it should be his fortune - and I hope it may be - to be blessed with an abundance of this world's goods and he wishes to provide for his children hereafter, his daughters especially, he can do so without any difficulty at all by a deed of trust or by making his will if he thinks he is going to die; and even if he should himself fail during his lifetime to make any of these provisions and die possessed of large real estates - which I hope also he may - that he may live a long time and die full of lands and riches - the law protects his daughters in this land and houses. They cannot be sold for his debts and his liabilities. Besides that, sir, before parties go into a marriage, they have the privilege of entering into a contract by which all the property, or any specific property, of the wife may be protected from the acts, debts and liabilities of the husband. We already have laws looking to this very state of affairs, providing the means by which the property of the wife may be protected against the acts and debts of the husband; and I suppose when this new State goes into operation we will go into operation with the existing laws so far as they are not in conflict with this Constitution and so far as they may not be altered by this legislature. These same laws will protect the rights of the wife as far under the new Constitution as they protect them now. Moreover, sir, our courts are the best place to settle the rights of the wife and husband. They are wiser, they are more slow in their motion, they give more consideration to all these questions when brought up than a legislature would. I have more confidence in the judiciary supported and sustained by a long course of decisions than I have in the wisdom of the legislature. If it should become necessary, I would not, perhaps, object to the clause if it were optional with the legislature to pass such laws or not; but as it reads now, it is obligatory on the legislature - "the legislature shall pass all laws, etc." There is another thing: if you want to make it obligatory on the legislature, to make it protect the property, you ought also make it obligatory on them to protect the property of the husband. There are many cases where the "gray mare is the better horse," where the wife is extravagant and the husband suffers.
It is true this old commonwealth doctrine may have been made by men, adopted by them for their own peculiar benefit, but it has been modified, enlarged, liberalized if I may use the term, from ancient times down to the present day, until under existing laws and rules of construction in the State of Virginia, the wife's property may be effectually protected against the acts and debts of the husband. Why, sir, the husband's creditors cannot get hold of the husband's property if he happens to die intestate without making a provision for the wife. Our courts are gradually advancing towards a protection of this property of the wife against the acts and debts of the husband. Now, this requires the legislature to take hold of this matter at once and make all the laws that in their judgment shall be necessary to protect them. I believe, sir, heretofore when differences of opinion and difficulties have arisen in the judgments of the supreme court, the legislature, whenever it is thought necessary has taken up the question and indicated it in the form of statute law. Some cause could be cited in which these difficult questions had been settled finally in this way. I think we would have that language plain in a case of that kind. Let it be optional with the legislature. Let them under their general authority pass any law it may hereafter see proper or not pass it if it thinks it not necessary. For these reasons I am opposed to the section as it now stands.
MR. SOPER. The gentlemen that favor this motion I apprehend do not look at it in the way that is intended to operate beneficially. Now, the objection urged is that the profligate husband by means of having a wife with property will obtain credit with unsuspecting individuals; and when he gets the credit he will turn around and say to his creditor, "Why, this property belongs to my wife." Now, sir, the very fact of putting this provision in your constitution prevents this. It gives notice to every man who reads the Constitution, and it gives notice to the legislature to pass laws which will become well understood throughout the whole State; and if a woman has been so unfortunate as to get an intemperate man it is well known in the community that everything depends on the wife. But then up comes another objection. Why, it is demeaning a man that he should have to go to his wife for an order to pay his tailor's bill. Is it demeaning a man living on the charities of his wife, so degraded as not to be competent to take care of himself - who has no character in the community - to say that he can be demeaned by having to ask his wife for an order to pay the tailor? O, but says the gentleman, you are going to produce discord between the man and wife! Is that so? Would not that individual be as humble (amiable) to his wife as to any individual who would support and take care of him. And if he should resent it, would it not be right for the wife who had her own means to pay his board, if she had an affection for him as the father of her children? Would not it be preferable, sir? Well, now, again. What does the gentleman propose by having this old rule here? If it is said that the property of the wife ought to go for the payment of his debts? Still what do you do then? When all the wife's property is gone, could the husband support the wife? Property gone - friendless - where then do you go? Why, they go to some charitable institution for your protection. Now, where is the greater evil, sir? But says the gentleman from Harrison: O, here the laws of the land provide for all that; and so does the gentleman from Kanawha. So we hear a wife has got a right to the house, to one-third of her husband's property. But as long as the husband lives she has no interest in it, and during the miserable existence of this miserable husband this unfortunate wife and children shall be subject to penury and want. Now, sir, if we can guard against such a state of things ought we not to do it? And particularly when we are committing no wrong? But says the gentleman from Harrison, the laws will protect all this thing. The father before the daughter marries can place the property in the hands of a trustee who can hold it permanently for the protection of the daughter. Why is there a father in a thousand who bargains away his daughter in deeds of this description? I know that is the law, but yet it does not reach the case. I have given my views here to show the operation of this law and to show that even in the case now stated here the provision for a trustee does not really provide an adequate protection for the property of a married woman. Another class of cases. Here is a father who suffers his daughter to marry an individual her equal in every respect in character, in property, a man of activity, of energy of sound sense and judgment and of economy in the management of his affairs; a man that is prosperous in the community. And yet, as I stated when up before, owing to this secession which has produced ruin, thousands and thousands of our prudent men in this country are perfectly bankrupt and are now depending entirely and living entirely on the property of their wives which was protected. They are hampered with their debts, they cannot go into business and they are tied down; and unless Congress passes a bankrupt law and relieves them, they must remain dependent and miserable in suffering and want, not only themselves and their families but their whole lives unless their creditors forgive them their debts. Now it is against this class of individuals that this law is intended to protect. And when this law goes into operation, no prudent young man having received property from his wife, no father who wants to bestow property on his daughter or grandchildren, will jeopardize that property; but they will take and fix it in the right of the wife when it can always be used for her protection and for the maintenance of her children. Take as I before remarked: here are the young men starting out in business. The wife's property is protected. The husband has $20,000. He settles $10,000 of it on his wife. It is made public. (No need of your requiring fees.) He retains his remaining $10,000 and goes into business; and if from some unforeseen cause or other, he fails and loses that property, why until he can get relief from his debts he can fall back on that property of his wife and she will be comfortable, and both will be, and the cords of affection will be made stronger. But no individual will be injured, because they have full notice of it before he went into business and it was well known and understood. It was not the basis of any credit which caused his debts. Now will gentlemen look at it, and they will at once see the beneficial provision there is in this law. But now again here comes private influence. The husband wants to be the lord. He wants to lord it not only over the person of his wife, but over her property also; and if I understand the scope of the argument it is, why it is rather belittling a man, degrading him. I apprehend there is no sense in that. Suppose the husband and wife to be one in interests and feeling that he is a prudent man and goes on prosperously and lives pure and grows up with respect and credit in the neighborhood where he lives, who has a right to think that man degraded because his wife happened to be on an equality with him so she could control her own property as he did his? The neighborhood would not find fault because they both had plenty. It would be a mere matter of feeling and pride and no one could be injured. And no one would be particularly benefited by it: because they all had enough. This provision would be unnecessary if all men were of that description. It is the unfortunate that are to be protected. The unfortunate from acts which were unforeseen at the time the wife received the property. Or if you please, suppose the husband had lost everything he had. This law in a very easy simple manner would enable or the relative or friend to bestow on the wife and family the property which would be intended and used for their subsistence. Now, sir, I apprehend in any point of view gentlemen will look at this, when you compare the advantages that are to be derived from this provision in the Constitution and the disadvantages that would arise under the old state of things, every gentleman must see the propriety of retaining it. Well, now, another objection of the gentleman from Harrison is this: if the phraseology of that act was so left as to make it discretionary with the legislature he could have no objection to it. Why, sir, I suppose the legislature would have the right at any time to pass laws for the protection of the married woman without having any constitutional provision about it. But it never has been done, I think in this State. I see from that argument it is merely wanting to give this provision the go by, impliedly admitting its correctness. But gentlemen say we are not competent to decide affirmatively on the proposition. That is the result of the argument. We have not got knowledge and experience enough to say it shall become the law but it shall be left to some future legislature to pass on this subject. I am opposed to anything of that character. I am for meeting the question fairly and squarely and for saying I will support this provision here and take care of the private property of the married woman through all time. If she sees fit to give it to her husband, that is a matter we have no control over. She shall have the absolute disposal of it. I hope the section as it reads may be adopted, and then the legislature will pass such qualifying laws: I mean, now, for instance, the wife, if she receives property from her husband, or has got a further estate, it ought to be subject to all the debts the husband owes at the time it was conferred on her. I have stated a case where the husband gives one-half his property to his wife and trades with the other half. If at the time he commences trading he was indebted one thousand dollars and he should neglect to pay in the course of his business and it should be a debt that existed at the time he conferred the property on the wife, I should say that thousand dollars ought to be paid out of the property of the wife; and it will be for the legislature to see and guard against any emergencies of such a character. Now, sir, while I am maintaining this provision, I utterly repudiate the thought of laying the foundation for the scheme of any fraud whatever. I hope, sir, the section may be adopted.
MR. BROWN of Kanawha. I beg one word in reply to the gentleman who has just taken his seat. He has told us that my friend from Harrison has informed him how the law now stands and avoid the evil the gentleman from Doddridge indicated. Whenever the father wanted to make provision for his daughter he had nothing in the world to do but to convey his property to some friend who would take care of it and the gentleman says not one in a thousand would bargain away their daughters in that style. Well, sir, what is he proposing to do with this thousand fathers who would not bargain away their daughters? He is proposing to make an assignment in this provision - an assignment of all the men to all the married women in the commonwealth. I stand here in behalf of all the women of Virginia to say they desire no such assignment. Their best protection is in the arms of their husbands and their richest treasure in the treasures of their hearts. Give them their fortunes for weal or woe, for thus they have chosen their fate, and they have all they want. Let the men manage the business and be responsible for the management they give it. The gentleman from Ohio thinks the existing laws were made by the men alone and men will manage this thing, and these women ought to be protected in this particular matter. Why not confer on your women the right to go to the polls and vote? And why not call upon them to go into the armies and defend the country? Why not make a man of a woman at once? No; as written in the constitution sex differences that cannot be obliterated, the high and sacred sphere of mother, wife and daughter are in the household guarded by the strong arm and manly heart of the father and husband and brother who are to manage the rougher relations of the world. They look to these as their protectors; and that is the protection that they are interested in. These additional protections are nothing to them. I maintain this constitutional protection is only another way to destroy the rights of the women. Secure the husbands in all these political relations and secure society in these private relations and you have accomplished all the good the laws can give.
MR. STUART of Doddridge. I do not propose to detain this Convention but a very few moments. I am now speaking as I have throughout for the innocent and helpless. I desire to refer to one or two remarks of the gentleman from Harrison, and the gentleman from Kanawha, as they have had their hitches at it. The gentleman from Harrison predicates his argument on the fact that there is a law now in Virginia that does protect the property of wives and whereby the father can protect the property of his daughter. Well, now that law may be in Virginia, but it may not be the law that may be adopted in West Virginia; and I will act here, as the gentleman from Tyler remarks, upon principle dictated to me by what I know to be right and not what may hereafter be right. The future legislature of the State which we are now framing a Constitution for may adopt laws or it may not adopt them. It may adopt the laws of our present State as far as compatible with the Constitution we are now framing or it may not do it. It may adopt the common law and it may not. We are here, sir, starting and we should act not upon what we may possibly suppose the legislature may do but what we think ought to be done. And if we think it ought not to be done, why, of course, we will vote against it. But take the law of Virginia. The gentleman from Kanawha says he does not desire to see a third party come in between man and wife. Well, sir, the object of this section that is now before us under discussion, in my view, is for the purpose of preventing that thing - that very thing - the bringing in of a third party; because under the present laws of Virginia - I believe I am tolerably well posted in that - a father can bestow on his daughter and appoint a trustee and bring in that third party between his daughter and her husband. There is no necessity in passing a law for the protection of the property of the wife and bringing in a third party. If there is any necessity for that thing - if it cannot be done in any other way, then I will oppose it. For I never want to bring in third parties. But take the law of Virginia to which I have always been opposed, though it did mete out ample remedies to the female sex in our community - I am opposed to it. I want some remedy here by which it will not be necessary that the father will have to appoint a trustee but that he may give and bestow upon his daughter the property he desires and she can be protected in that property from the debts of the husband. Now, the gentleman from Kanawha seems to think it may lead to inroads on the virtue of the wives and daughters of our community. Protecting the wives of our country by permitting the husband to squander her property and an officer of the law may come in and throw her out into the streets and highways without a shelter to protect her and her offspring! Is that the way to protect the virtue of our wives? Gentlemen, refer to your own knowledge in this matter, your own experience in these things. Where is it you have seen virtue lost, and this unfortunate class of our community getting lost to all virtue? It is where, sir, they have been robbed of everything, of every comfort, and have been thrown upon the mercies of the cold, heartless world without shelter, aid or protection. There is where I have seen virtue lost and not in protecting the wife in her property. That is not my view of it. It does seem to me the gentleman from Kanawha is mistaken. This is not the way to protect virtue - that where riches and honor leave, the man and his wife march out together - in order to protect her virtue, I suppose! If the father has bestowed on the daughter a home that will shelter her and her children, if the husband through his recklessness becomes indebted and the officer comes and attaches his property in order to protect the virtue of the wife, you may let her go out into the world unprotected, uncared for, with her property gone, her husband careless of her, careless of everything else, leaving the wife and children to be thrown on the community, helpless, uneducated, without the means of education. It does seem to me, sir, there should be a law passed by which this thing could be remedied. But it is not necessary - absolutely necessary - that a man and wife should carry on a separate business, and I do not presume it will happen in one case in a hundred. It will not prevent the wife from permitting her husband to control the use of her property and will not be done in many instances. But where the wife thinks it necessary for her protection and that of her children and that of her home I want to grant it to her. I do not want, as the gentleman indicated, to bring up the wife to the polls to vote, but I want to protect her for the simple reason that she has got this right.
MR. BROWN of Kanawha. I desire to know of the gentleman why in his capacity as senator in the legislature, he has not introduced a bill there for the remedy of this evil?
MR. STUART of Doddridge. Well, sir, I have not much legislative experience, and I would admit frankly here that my legislation at present does not look much to the fact that it will be perpetuated here for my hope and prospect is built up in that of a new State and I hold that Just as little legislation as can be done at present is the most prudent thing; and my course, my action and my influence and my votes will go so far as to legislate on nothing whatever now only what is absolutely necessary to be legislated on although I believe I will be overruled to a great extent. But, sir, I admit if things were different, if we were differently situated and it should be my fortune to be a member of the state senate or legislature, I undoubtedly would feel it a duty to introduce a bill looking to this thing and would do it. But for fear the laws the gentleman from Harrison has referred to would be adopted for the regulation of West Virginia I desire to incorporate something in our Constitution that will make it obligatory on the legislature to pass some law to protect this class of our community. I feel, as I said before, that I am standing here speaking for the innocent and helpless. It is not worth while to refer to what I said in the former few remarks that I made to call the attention of members to cases that have come to their knowledge of cases where grievous wrong has been perpetrated. If we can pass a law let us do it, and if it is right the law should be passed let us so make it obligatory in our Constitution.
Mr. Soper asked for the yeas and nays on the motion to strike out section 42.
The motion was not agreed to, the vote being as follows:
YEAS - Messrs. John Hall (President), Brown of Kanawha, Brooks, Brumfield, Chapman, Carskadon, Dering, Dolly, Harrison, lrvine, Ruffner, Simmons, Stephenson of Clay, Taylor - 14.
NAYS - Messrs. Brown of Preston, Caldwell, Hansley, Haymond, Hubbs, Hervey, Lamb, Montague, Mahon, O'Brien, Parsons, Paxton, Pomeroy, Robinson, Sinsel, Stevenson of Wood, Stewart of Wirt, Sheets, Soper, Stuart of Doddridge, Trainer, Warder, Wilson - 23.
When the roll was called Mr. Montague was asleep. Mr. Stewart of Wirt said, referring to Mr. Montague: Mr. President, the gentleman who was asleep is now awake and desires to vote.
MR. MONTAGUE. I did not hear my name called.
MR. LAMB. Mr. President, I move the adoption of the section and take occasion to remark that there is nothing gained by these motions to strike out, that the ayes and noes may as well have been taken on the motion to adopt.
MR. HERVEY. I move to adjourn, Mr. President.
MR. LAMB. Let us have the vote on the section.
Mr. Hervey withdrew his motion, the question was taken and the section adopted; and on motion of Mr. Stewart of Wirt the Convention adjourned.
Chapter Eleven: First Constitutional Convention of West Virginia
