The Convention assembled at the usual hour and was opened with prayer by Rev. Robert Hagar, member from Boone.
Journal read and approved.
THE PRESIDENT. When the Convention adjourned, it had under consideration the adoption of the amendment to the amendment, which was the proposition of the gentleman from Hancock to insert $1800, in lieu of $1600, as the salary of circuit judges.
MR. STEVENSON of Wood. I did not intend, Mr. President, to say anything more on this subject until the gentleman from Hancock and the gentleman from Marion jumped on me last evening. I do not know but a few words of reply, if I recollect what those gentlemen said is due to the position I have occupied in reference to salaries. It is very evident from the course those gentlemen pursued that they were conscious they were combating a position which was a strong one; and I believe I shall say but little about the personal allusions which they saw proper to make to myself when they thought it would be more consistent in me to say something about my own salary and reduce myself to living upon weak tea and coffee. I shall not say, sir, that those gentlemen have not been consistent in their course in reference to this matter of salaries. That is a matter to be determined by themselves and by the Convention in their course on these questions and when the votes are canvassed. I will say they have been consistent members so far as I can recollect as far as possible for members of this Convention to be, and I think they have performed their duties as faithfully probably as could be desired. They may have made some mistakes, like the rest of us. I am afraid they are about perpetrating a mistake now. But, sir, the gentleman from Hancock in the course of his remarks undertook to establish here by quoting from scripture that it would be right to give these circuit judges $1600 a year and mileage - about $1800. He quoted something like this. "The laborer is worthy of his hire." Well, now, I suppose on that question we all agree that the laborer is worthy of his hire; and we propose to give him a full compensation for all the labor he performs. But what did the gentleman from Hancock tell us almost as soon as he had made his scripture quotation and applied it as an argument in favor of giving these salaries of $1800 to the circuit judges? Why that one-half the men in the United States did not make $400 a year. And yet, sir, the drift of the gentleman's discourse was this, that this large multitude of people, of honest people, of laboring people, farmers and mechanics of this country, and of men in other occupations who had to support themselves and families, feed, clothe and educate them had to do it upon less than $400 a year, and were to be taxed to pay judges the snug little sum of $1600 or $1800 a year. Now, I put this question to the gentleman from Hancock. If it is true that a judge cannot live upon $1600 a year - and that declaration has been made here, and the gentleman from Hancock seemed to convey that idea, what is going to become of this multitude of men in our nation who live upon $400 a year? If a judge is likely to starve to death on. $1600 a year, I put the question whether this large multitude of working people who get less than $400 had not better be hunting up the grave-digger as soon as possible, if there is anything in that argument? Let me say to these gentlemen, let it be distinctly understood that when they used the words, parsimonious, penurious and stingy that they do not reply to the argument on this side of the question. We do not advocate anything of that kind. We do not wish to maintain the position that this new State shall be parsimonious, or penurious or stingy in regard to its public officers. Nothing of the kind, sir. We maintain that they shall receive a fair compensation for the labor they honestly perform.
Now, sir, that seems to me to have been about all that was said in reference to this matter by the gentleman from Hancock; and I commend to that gentleman the phrase from the Scotch poet. It doesn't apply to his case now; I hope it won't during the progress of this discussion. But at least what I shall quote will be for his advantage.
"E'en
ministers they ha' been kenned
In holy rapture,
A rousing whid at times to vend
And nail it wi' the scripture."
Now, the gentleman from Marion, made a very modest but a less pious allusion to the tea and coffee, and the gentleman from Wood undertook, at great length and breadth to spread himself on this matter of salary, and what does he tell us? Why, sir, that it was necessary to have a pure judiciary; to have men on the bench of good legal abilities, qualified to discharge the duties of that office. Well, who denies that position? Don't we all agree with the gentleman from Marion, who tells us they should have competent and good salaries in order to secure that class of men? We agree with the gentleman from Marion, sir - all of us. There is no dispute upon the questions generally contended for in the very long and eloquent speech which the gentleman gave us yesterday evening. Where do we differ? Why, simply upon this: that $1600 with mileage is or is not a sufficient compensation to pay a judge for the discharge of his duties and to secure the services of competent men on the bench. I submitted yesterday to this Convention a fact which I believe can be established by the history of jurisprudence in this country and probably others: that extravagantly high salaries either in that department of the government or in the legislative department, do not, as a rule, produce any better talent than moderate but proper salaries do. It just narrows itself down to this question after all: is this amount proposed by the gentleman from Doddridge a sufficient amount to compensate a judge for the discharge of his duty; will it secure in this new State such persons to occupy that position and discharge those duties? I alluded yesterday to a fact which had come within my own observation, and since that time I have thought of a number of facts of the same kind or of a similar kind that I had known, of good legal abilities in very populous parts of this country, whose courts sat six, eight or nine months in the year discharging the duties faithfully and well on a salary of $1500 a year, without any mileage attached to it. That was a low salary, I will admit - probably too low; but these were in wealthy and populous portions of the old state. Now $1600 a year is over $5 a day for every working day in the year. If you add to it the expenses of travel, it will probably be $6 a day for the working days. Therefore, if a judge occupied his whole time the whole twelve months in the discharge of his official duties the receipts for every day's labor which he performs is pretty near $6; and if he only occupies half of that time - and I apprehend that in many of these districts which we are making they will not be occupied more than half, he will receive from eleven to twelve dollars per day for the actual labor which he performs. When you take into consideration the condition of our new State, when you consider the fact that we are a new State, a comparatively unsettled State; that our people are poor; that our State is poor, you must take into consideration the fact that the salaries of public officers should be accommodated, at least to some extent, to the ability of our people to pay them. Gentlemen have said here that it is impossible for a man to live respectably and comfortably upon $1600 or $2000 a year. I think that is a mistake. I know it is difficult for some men to live on $16,000 a year; but are we to measure a standard of paying our public men because the vanity and pride and extravagance of the age leads our men in public positions to squander the livings they receive from the people of the State? It is not a correct principle, sir. I maintain that a man can live well and respectably - I think the gentleman from Hancock proved it, for I think more than one-half the men in this country probably live pretty respectably, and I think they live on less than $400 a year. I think a man can live respectably and comfortably, at least, that is as long as wheat is sixty cents a bushel and corn from twenty to twenty-five cents raised by a farmer who thinks he is fortunate when he has any wheat that is not destroyed by the weevil or any potatoes that escape the rot. As I said, we are a plain and poor people; a poor State; and our judges should be plain men, economical men as well as intelligent men - plain and economical, like the people whose business they perform.
But it is said again that the amount between $2500 and $2000, or between $2000 and $1600, so inconsequent it is scarcely worth contending about. Let us see how that works by reducing the salary of the supreme judges from $2500 to $2000. You gain in a single term of this court $18,000 for the people; and in these nine judicial districts which you propose to establish, by reducing from $2000 to $1600 you save $21,600 to the people, or nearly $40,000 in those two courts alone for a single term of the judges. I say we are not to stop here if we are to carry out the wishes of the people. That is what we are here for, not to consult our own private opinions on the matters of this or any other kind that come before this Convention, but to represent the entire people within the limits of this new State; and whatever the people demand, we are in honor and interest bound to incorporate in this Constitution. I want this principle of economy applied to the governor and secretary of the commonwealth, to the state auditor, the state treasurer, the members of the legislature. You have applied it there already with a vengeance. I want it applied then down from the state departments through all the county and township organization in this State; and when you have applied the principle of economy in all these departments, you will find it is no inconsequent sum that is saved to the people; that instead of being $40,000 it will within the longest term I have named be several hundred thousand dollars - a little fund to be kept for these poor men who live on $300 a year or to be appropriated to the treasury of the State.
But we were told by the gentleman from Marion that we were not here to represent the people of the State; and, furthermore, that a man who would not go contrary to the wishes of the people when the opinions of his constituents ran counter to his was not fit to be a representative of the people on the floor of this Convention. In this the gentleman is entirely mistaken. That is the vital life-giving principle of every republic on the face of the earth - the principle of representation. All the people cannot go to the legislature, all the people cannot go to Congress; all the people cannot assemble in state convention. Well, what are they to do? They are to select one or more of their own number to come here into this Convention to represent them (the people) not their own opinions, because my opinion is my own individual opinion and is worth no more than that of any one of my constituents. The representative is a sort of embodiment of the people of his district; and he is not faithful in the discharge of his duties if he undertakes to run contrary to the interests and opinions of the people in that district. Some gentlemen say, if I come to a question on which I differ with my people, what am I to do, go with my people and sacrifice my conscience? No, you need not do that; resign your seat and go home if you cannot act consistently with the opinions and interests of the people who sent you here, and bide your time until the people come up to your standard, and let the people send a man here who will represent their interests. Why, sir, that is the very doctrine that has led to the rebellion in our midst, where the secession doctrine has plunged the country into the red sea of secession and civil war. They did not act upon the opinions of the people. Do you suppose in those states that have seceded, any one out of every half-dozen of them, or probably one in the whole number, would have undertaken to break up this government if they had been consulted? No, sir; the men who met in convention, like my friend from Marion, set up the doctrine that they were to exercise their own judgment, not to represent the judgment of the people on these great questions; and therefore they undertook to break up and destroy the government. We sent to Richmond about a year ago a number of men pledged by the vote of the people - by an overwhelming vote - in favor of the preservation of the Union of these states and opposed to this secession and rebellion on the part of South Carolina. That was the clearly expressed opinion of the people; but when that Convention got there they undertook to say that it was not the duty of a representative to carry out the wishes of the people; that they knew more than the people and they would insist upon their own private judgment of these great national questions in opposition to the people who had sent them there. The result is seen amongst us. The state seceded; the state was plunged into civil war; and now that war is raging and likely to rage within the borders of this state for a long time to come.
I want to be consistent in this matter. I want to know what good reason there is why the judiciary should be made an exception from the working application of this principle. We reduced here in accordance with this principle the per diem of the legislature. But the gentlemen tell us the members of the legislature if they get enough to pay their expenses ought to be willing to go and make laws for the State and leave their families at home, living upon what, if this pays only the expenses of the member? You shut out every poor man in the State from ever being a member of the legislature, if it was true; but I don't believe it is true, because I believe three dollars a day will pay them pretty well. They say this principle does not apply with the same force to the members of the legislature. I want to know why it does not apply with as much force to the men who make the laws as to those who administer or those who interpret the laws? If it applies to the auditor of the state who has the control and watching of the money of the people, to the treasurer of the state, to the secretary of the commonwealth, why doesn't it apply with equal force to the judiciary? If it is true that the salary of the governor must be reduced on this principle, a man who is required to have as good an intellect, as good a head and as good a heart as any other man in public position - the man who is to execute these laws that are made by the legislature and watch generally over the necessities of the people - if this doctrine is to apply to the governor of the state and the other executive officers, and from that down to sheriffs, justices of the peace and constables, throughout the whole ramifications of this township, county and state organization, I want to know why it shall not apply with the same force to the judiciary of the State?
These are the reasons why I am in favor of giving, not a penurious salary, not disposed to be parsimonious or stingy, but taking into consideration the condition of our people, the fact that our farmers have lost their crops for the last three or four years, the civil war now raging in the state for a year past and likely to be for a long time to come, which has paralyzed and in some cases almost destroyed the industries of the state - taking these things into consideration, it seems to me that $5 or $6 or $7 a day ought to satisfy such gentlemen as aspire to fill the position of judge within the limits of this State.
MR. POMEROY. I suppose it would be proper that I should say something in reply to this speech just made by the gentleman from Wood. I might very appropriately quote another passage of scripture: that it is a good thing to be zealously affected always in a good cause. Now the gentleman's cause is good. It is well to be zealous in it; but I have my doubts whether this is a very good cause in which the gentleman from Wood manifests so much zeal at the present time in regard to replying to the argument in reference to the $400 that I stated last evening. I do not think the gentleman made that argument until I admitted, as a man who professes to speak the truth - what I believe to be true - that a majority of the people of the United States does not really make $400 a year; and that therefore I did not see the propriety of making the distinction, to the amount equal to the yearly earnings of more than half the people of the United States, between two officers, the one to whom it was proposed to give the least salary performing more labor and deserving a larger salary than the other. I do not believe and never have been convinced to the contrary by any statement made on this floor, nor anything I have read in the past history of the country, that a court of appeals has a tithe of the labor to perform that a circuit judge has, his jurisdiction extending over a number of counties and being obliged to hold a number of courts in each county each year. I believe that as far as actual labor - by that I mean equal physical and mental labor - because, as has been stated by the gentleman from Kanawha, there is an amount of physical labor in traveling over these circuits so frequently as these judges are obliged to do - far beyond what is required of the judges of the court of appeals; and of mental labor I aver that there is as much in the one case as in the other and it is far more vexatious and trying in the circumstances in which the circuit judges have to do theirs than in the other court where the judges can take their comfortable leisure for their research and study. Therefore I could not see the propriety of making the difference of $400 against the more laborious class of judges. This argument - let it be much or little - that having reduced the supreme court judges to $2000, a corresponding reduction must be made in the others does not appeal to my sense of justice. I voted for the reduction of the appeal judges because I considered $2000 sufficient for them. Now it is proposed that for the mere purpose of showing apparently to the world that there is a great difference between the two courts, we shall make a difference of $400? I do not believe there is any need for that amount of difference. I think $200 is sufficient; hence I proposed to make this salary $1800. The gentleman from Wood appears to think because some of us - and I suppose, of course, he means me - have voted low salaries - that is, to make salaries sufficiently high to give the man a fair and adequate compensation for the services rendered - we ought to be willing to make a general level of compensation that shall be fixed with reference to the low scale of pay which the vast body of agricultural and other laborers are obliged to accept all over the country. I do not believe that to be true. I believe a man ought to have a fair compensation and nothing more for what labor he performs. If a certain service is to be performed and a suitable man who can do the work cannot be employed to do it below a certain price, you have got to pay that price. And here comes in the law of supply and demand, in which we are all bound. The great body of the people who have only rude and unskilled labor for sale, having always a supply of this kind of labor about equal to the demand, are obliged under the inexorable operation of this law to accept a low scale of wages; and since they cannot command a higher, they must adapt their manner of living to that low rate of compensation. They must live on what they earn, whether it be $400 a year or less. They must live simply on coarse food, wear plain clothing and do without luxuries and refinements, travel, fine clothes, music, amusements, expensive food and domestic surroundings, which constitute the greater part of the cost of living for the wealthier classes. If you have work to do that requires special skill or learning, the number who can do the work is comparatively small, and you must pay higher wages; and so on up to the highest requirements, where learning, experience, talents and special mental equipments are required, where you must pay the price or accept a lower grade of service. Because the great body of the laboring people - the people who labor with their hands and bodies - can command only $400 a year, it does not follow that men in the arts of men of education and special skill in the professions like medicine, surgery or the law can be found to work in their line for a similar low level of pay. These things are regulated and graduated by laws that none of us can control - before the edicts of which legislatures and conventions are as powerless as individuals. We can only recognize the operations of these laws and adapt ourselves to their requirements.
But we are told that in the olden time the salaries were less. So was everything else. So was the scale of living at a lower rate. A man could live on far less money than he can now. The advancement of things in the country, the progress in human affairs have raised at the same time the wages of men and the cost of living. What would have seemed extravagant prices twenty or even ten years ago, have become necessities on account of this upward trend. Time was when a man thought he had made a good bargain as a day laborer if he could get a hundred dollars a year. How is it now? A higher scale of prices is established in the country everywhere. The trend is upward, and we cannot foresee how much higher the general level of prices and cost of subsistence may be in the next five or ten years. This ought to be considered when we are naming fixed salaries in this Constitution, which cannot be changed except by amendment or another convention.
Regarding the argument that the judges' salaries ought to be low because we propose to reduce the salary of the governor. Has any governor one-tenth part of the labor to perform that a circuit judge has? In a time of peace he has very little labor of any kind, either physical or mental. The honor of being governor is worth something. While I will not say that I will vote for a low salary for the governor, I believe in time of peace he is one of the merest walking-sticks. The Governor of Rhode Island has not been in the state for months. There is nothing to do; no business to transact. The legislature meets twice a year, and what has the governor to perform? They give him but $400 salary, it is true, because he has no labor to perform. Some wealthy man is generally elected solely on account of the honor. A great many people don't know any difference between the Governor of Rhode Island and the Governor of New York; and he gets as much credit as if he were governor of the greater state with the masses of the people.
Now, I believe we have said it is perfectly right to give the supreme judges $2000. Since then, we ought to give the circuit judges at least $1800, and that is my motion. I have no particular zeal because I made the motion. I thought there was a disposition on the part of my friends to go too low and I wished to come in and compromise between those two numbers and say $1800. You may say $200 is a small difference but it goes a good ways in covering a man's expenses. I believe a man can live on $1800 a year. But that is not the question. The question is having settled on $2000 on a principle which I believe to be correct, that a man ought to be rewarded in accordance with the kind and amount of labor performed, and as a judge would have to break away from his practice of law, cannot practice during the time he is on the bench and cannot immediately resume his practice when he leaves the bench, I say he should be paid accordingly. Every man who lives honestly and uprightly in this land, I don't care what his profession is, ought to make more than a living - ought to lay by something for a wet day, for the time he is unable to work. If a man's mind is harassed with anxieties about the subsistence of his family he is not in condition to prepare and render law decisions, which require a serene and clear head. A man must have good spirits to perform his duties in the best way. I do not want to refer much to the scripture but I can show that by the scripture. When a man is in a jovial state of mind, he can perform his duties right - not when depressed and sunken down. If you want the soldiers to do any good on the field of battle you must have them all in good spirits; think they are going to accomplish something that they are going home to tell their wives and daughters of what they accomplished on the field of battle; and they must be cheered up by their leader and urged that there is a chance for a glorious victory. As the gentleman from Marion (Mr. Haymond) says "the stars and stripes" - and thus you make the man. So with the judge on the bench. He may not be in good spirits. He may feel that he is going along with poverty staring him in the face, and has no heart for his work and cannot do it well. Therefore I say he ought to have more than a bare living while he serves the people - the dear people. Well, I represent a very plain people; I represent a generous people. They never said a word to me on the subject of the judges' salaries; to increase or decrease. There are other subjects they did speak on but never spoke on that subject at all. I do not believe the people are going to find any fault with this provision in the Constitution to give judges $1800. I understand some gentlemen are not satisfied with the amendment of the gentleman from Doddridge but wish it had been even a less sum. Now, I believe a man may be too penurious; he can go too far in the matter of saving; go that far that it is likely to do an injury to him. No necessity of doing that. While there is many a man, as I remarked in a jocular way about drinking weak coffee and tea who allows his mania for saving carry him to extremes of petty economies like that, in the belief that he is economizing. It is a mistake. That kind of thing is not economy. That is not what economy means. Economy is the wise investment of money so that more than you put in will come back to you. It is in buying the thing that will give the best results, not the worst. It is the results we are after. Mere penuriousness is not consistent with this kind of economy. There are families living in this country that are a disgrace to the human family just on account of their penuriousness. They don't take the good of the things of this world as we are commanded to do. We certainly don't want a man on the bench that will violate the plainest rules of the best book in the world for a judge. We want a man of liberal principles, of good intellect, good learning, well qualified to decide the cases that come before him and I wish to give him a suitable compensation; and in my humble opinion $1800 is sufficient and is not too much. Then the mileage comes in, of course.
They say the State is too poor. Well, I am not ready to admit that. I think there is more money in the treasury today than most of the states of the Union. Where is the evidence of our poverty? There is no public improvement that money has been appropriated to; and under the new State Constitution none can be; no waste of money without unwise legislation on our part. If we run into unnecessary expense we may become involved in debt. But go to our treasury: our treasury officers promptly pay all proper demands. We will be a prosperous people if we adopt the right kind of policy; if we be consistent and make a liberal constitution; one that will be beneficial to those that rule and those that are ruled over; make it with wise and suitable provisions to prevent fraud and everything of that kind from being practiced on us as in past legislation. I see no reason why we should be a poor people but do see reasons why we might rise in prosperity and in wealth and become a great people. With the right kind of policies I know we will.
MR. HAYMOND. I always regretted to lose a good friend. The gentleman from Hancock told us last evening he was going to leave us. I bid him good-bye, but I am in hopes he will be with us by Monday. But in losing him, our undoubted friend from Doddridge has taken us by the hand. Mr. President, I am entirely with my friend from Wood on this subject. I agree with him entirely, and I am with my friend from Doddridge in placing this salary at $1600 for the reason that we are not able to pay anymore, which I expect to show. I am for that salary because I believe we can employ the best men in the State of West Virginia for that sum. I am certain of it. Mr. President, we are about to start a new State here, a new government. We have our public buildings to build. It will be expensive. We have a public debt hanging over us. The State of Virginia has now a public debt of about $50,000,000. We shall have our proportion of it to pay. It will be not less than $5,000,000 to $8,000,000. Our taxes are now high. We are unable to pay them. We are at war now and endeavoring to down one of the most unholy rebellions that ever existed in any country. We have an army in the field of upwards of half a million of people with an expense of upwards of $1,000,000 a day. Sir, where is this to carry us? - $1,000,000 a day! Sirs, should we not be looking to economy? This $1,000,000 will lead us we know not where.
It is the argument on the other side that we are for the people and that we cannot get the good men unless we pay them high; that the office lawyers are so great, that they are making so much money that they will not abandon their practice for the judgeships unless we pay them highly. Sir, I have never seen many lawyers in this country become very wealthy. I believe this thing of their getting such high fees and making so much money is all a humbug (Laughter) . I have no doubt I can employ this day any man in West Virginia for $1500 to practice law for me in all cases; and therefore I think he would be willing to accept a judgeship at $1600.
My friend from Hancock said we had more money in the treasury than any state in this Union. That is a strange doctrine here for a man to believe. Virginia got more money in the treasury than any state in this Union - $50,000,000 in debt! And cannot borrow another dollar to save her soul (Laughter). I would like to know where the gentleman got his information from. It is argued on the other side that we are for the people. Sir, whom ought we to be for? Gentlemen, the people sent us here. Whom are we to go for if we do not go for the people? I am proud to say, sir, that I am for the people and nobody else, and when I cease to follow them I wish to be cut out of existence in this session.
I am in hopes, sir, a salary will be fixed at $1600. $1500 was what I desired, but I am willing to go with my friend from Doddridge in putting it at $1600.
MR. HALL of Marion. I do not desire to occupy the time of the Convention but a few moments, and propose to do so solely with reference to the extraordinary - 1 say extraordinary - position of my friend from Wood, and perhaps my colleague, endeavored to make me to have occupied last night. I trusted what I had to say, notwithstanding the remark that I made a very long speech, I can claim for myself that if I do sometimes, if I am justly chargeable with having made a long speech I may say to him, if you will put your pieces together it will make a much longer. I trusted I would have the attention of the members and would be able to make myself understood. But this morning I am characterized, not as a friend but as a hanger-on, a tail-end of this very rebellion, as endorsing the very principles on which it is founded and sought to be carried out. I endeavored, as I trust most of the members of the Convention understood me, to correct what I conceived was a wrong premise upon which representative men should stand. I said then and I say again, and as I shall say in all time, that as a representative man it was not my business and I would not represent the popular whims of my people, or any people; that it was my duty to represent their best interests; and I stated explicitly, as I repeat again - and I cannot understand how it is that the gentleman from Wood understood a part and could not understand the rest. But he must have passed over it by some means. I stated explicitly that whenever my people, or any people, had considered of a question and expressed an opinion that it was the duty of a representative man to represent that opinion or cease to be their representative, just as the gentleman prescribed I should do this morning. The very fact that he prescribes to me just what I declared would be the duty indicates not, however, any wilful misrepresentation of my position. We hear here daily the phrases "our side" and "your side." I do not understand how the lines of that sort are drawn in questions of this sort. The argument seems to be used that because there is a desire that you shall have a cheap government - that is a fact; it does exist and properly; and I concur in that - the idea is that therefore you shall run the thing absolutely in the ground. I draw that distinction. I stand on my position that while I represent the will of a people, that where the people have considered of a question and either instructed me or so expressed it that I know that is their will on deliberation, it is my duty, which I expressed last night and repeat today, to obey the instruction. But I apprehend there are very few members of this Convention whose constituents have such a knowledge of the various questions as they arise here as would enable them to say that they can state what would be their opinion on any particular question, nor have the members here any sufficient means of knowing what are or would be the opinions of their people on unexpected issues that often arise in the course of our proceedings. They may happen to know what opinion is entertained by some particular citizen on some well defined question; but I doubt if even then a member would feel authorized to say that his "people" as a mass, or a majority of them, entertained the same opinion. It is very easy for our own prediliction or opinion to lead us to think the opinion we entertain is the opinion of our "people." The real public opinion is not always a very certain quantity. A few noisy people do not always give expression to the opinion of the majority of people. It is well to be a little cautious about assuming that we are always the exponents of the opinions of our people, in the absence of organized and definite expression. We have a general knowledge that the people have generally expressed that we want to have an economical government; but we all know that does not mean we are to carry what is called economy to the extent that we shall have no government - a government in incompetent hands that does not serve the purposes of a government. It is for us here to judge what is an economical government; and for one I construe it to mean one that will subserve the purposes of a government efficiently and thoroughly for the smallest practicable expenditure. But efficiency is the first consideration, the cost is secondary. The difference amongst us seems to be chiefly a difference of standards - possibly a difference, too, of what constitutes efficiency.
I trust I am understood. I am satisfied the Convention so understood me last night. I may be the fag end, or the tail end of the rebellion. If so, so be it. I will answer for it.
Allow me to notice another suggestion. When we are talking about these salaries, we are told that by the reduction of the salaries as proposed from $2500 to $2000 we have saved $18,000 to the people. $18,000! Now, I beg gentlemen to just look at the fallacy and consider the merits of the case to which such resorts have to make for argument. Well, now. It is just a question of ciphering. I can work out the problem and make it $18,000, or $36,000, or $365,000, or $365,000,000. I can make a saving of one cent figure up more than the gentleman has claimed here. It is only a question of how long a period you cover with your calculation. So I will not dispute his premises. The point is, is that economy? Will we be representing the best interests of the people we represent by making that reduction? That is the question we have got to answer here. We differ, and I have no doubt honestly; I accord to every gentleman in the house as much honesty and sincerity as I claim myself. I endeavor to show that the amount of money represented by these reductions would not be saved when you make a salary that will not command the best capacity and talent to fill and occupy those positions. We should economize, and I desire to economize. I don't want to occupy the time of this Convention long, for if I do the first thing we will know it will cost more than what would lead to the destruction of your whole judiciary system. I say it is a pittance compared with what you propose to secure by it. The judiciary is one of the most important, indispensable branches of our government. Without it you cannot keep in motion any branch of industry within your limits - I mean without the proper operation of its functions. Therefore it is one of the most important branches of your government. It is the pilot of your boat.
The gentleman from Wood took a short turn and undertook to cut across ahead of the gentleman from Hancock as he supposed on the declaration that some men did not make $400 a year while other men could not live on $1600. Let me say to my mind there is a fallacy in the argument. You propose to give to your judges, say, $1600 and $2000, and we are answered with the argument that some men do not make $400. Do the men that you expect to make your judges of make $400? And will the judges who get these salaries make $400? What you get and what you make is a very different thing. When the judge has paid the cost of his living will he have $400 left? Yes, you say, unless they are recklessly extravagant. Why is it you give Abraham Lincoln $25,000, while some men only make $400? Because the position the President is called to occupy demands it, because he must support an expense and style of living that other men need not. I apprehend that Abraham Lincoln or any other President has never saved many of these $25,000. Take your judges. You say they ought to live plainly. So they ought. I do not believe in reckless extravagance. I do not believe it is necessary in order to give us a good judiciary that the judges of our courts shall cut any extras at all. But I ask you if the very fact that he is a judge of the court does not indispensably and inevitably add to the expense of his living unless he makes himself liable to the charge of penurious meanness that will be degrading to the position of the office and degrading to you who have placed him there. The dignities of office impose social obligations that cannot be disregarded, and these involve expenses far beyond the simple necessities of a frugal life. The man in official position is the target for everybody who is soliciting money for charity or other meritorious objects. He is bound to respond to applications of this kind, and to maintain a style of living and hospitality not expected or necessary to an individual in private life. I would want our judges to live as becomes their position, not to encourage them in extravagance. But, further, I want to command the services of the ablest and fittest men we can reach - the man, as I remarked last evening, who has the competency, the learning, the practice and experience and the other qualifications to fit him for the position. A man of such qualifications has been very unfortunate if he has not been appreciated by his people to the extent that he has acquired a law practice which it would be a sacrifice to give up to go on the bench for even the salary that I wish to give him. Well, it is said if this be true, it is because lawyers' fees are too high. Suppose that is a fact, what odds are that? If you want to get a thing done, you must pay the price. The day was when you would only pay nine cents for coffee; now you pay 25 cents, and if we want to be economical we have to weaken it a little. But why do we pay the 25 cents? Because we cannot get it for a lower price. You say you will not pay but 20 cents. Then you must put up with an inferior grade; just as you must do if you want to hire a judge below the market. But if you want to have a court that will be a court, you must pay the market value, and if you fix an unbending figure in the Constitution that is below the market, present or future, you may fail of your object. It is easy for gentlemen to say as my colleague does that a certain price will command the best men in the State. This is mere dogmatism. How do you know that is a fact even today? How do you know it will be true even five years from now? The tendency is already towards a higher scale of prices. Existing economic conditions in the country may greatly increase this movement.
Gentlemen talk about "our side" and the "other side." I suppose there is no part of this Convention that wants to pay enormous fees; that there is but one side on a proposition of that kind. Some gentlemen have been described here as "people's men." Perhaps we have in the Convention a "people's party." It may be the gentleman from Wood is the leader of such a party. They are for reduction and economy in all directions - the gentleman from Hancock suggests even to the quality of their tea and coffee. And that runs back to that other position. I am not afraid to do what I believe to be the best interests of my people; and I am satisfied that while I represent a people who demand at my hands economy, I am sure that I represent no penurious, penny-loving people who will be unwilling to pay what is a fair price for a good article. I know my people well enough to say that they are not of that character.
I am rendering myself liable to the imputation of another long speech. The gentleman from Wood in his zeal to claim to be the discoverer and only exponent of the will of the people represented me as maintaining an attitude that was the germ, the origin and the means by which the rebellion was started; that it was the cry that went forth in the Richmond convention that they were all the wisdom; that the will of the people was not to be consulted; that they did not care what the people desired they were going to pass the ordinance of secession. Now I beg to correct that impression. I tell you the cry went up there always and the argument urged was that the people demanded secession at our hands; that there was a popular clamor for it, and every day came in long petitions from this, that and the other school-house in which members were instructed to secede at once. That was the argument that broke the ranks and drove us into the sea. Yes, it was that cry and popular clamor. Yes, they came up from the southwest, from the counties of Amelia and all around there; and where anybody doubted their position, they were holding men there and were sending up the cry, secede! Secede! By that means the cables were broken and we were plunged into this rebellion.
Popular clamor is a dangerous weapon; and when men ignore their own right of judgment and individual responsibility to listen to it, great mischief may result. My friend from Doddridge knows how we were bored in that convention by these damnable and interminable cries of popular clamor that came up from these little byways all over the country. Now, it is the duty of a representative of the people to know what is the interest of his people; and when a people have deliberated and indicated their wish, to obey it. But in that convention if I had been told that every man in my county demanded that I should vote for secession, and if I had known it to be true, I would never have done it. I would have resigned. I do not care what the demand of my people is, I will never obey if I think it wrong, but when they demand it I will resign and they may send somebody there who will. I say that while we are looking to the will of the people, we are not to be led by mere popular clamor or popular idea that may be supposed to exist or that may really exist unless we know they have considered deliberately of that matter and know what they do.
I know it is very unpopular. You have to meet this idea of a cheap everything; and that a man who dares open his mouth against it places himself in the hands of a demagogue to hold him up as a mark for denunciation. I am very independent in that respect. If I am worthy of patronage, I shall get it in the line of my profession; and if I get that I shall say thank you, gentlemen, and be content. I am willing to meet any of these influences and do what I believe to be my duty; and whenever my people are dissatisfied, it will afford me a great deal of pleasure to lay down my position here and go home.
We are saddled with this idea, that the laboring men, the taxpayers and their interests are to be consulted; that we are proposing to ride over them; that we are endeavoring to tax them for this $18,000 - this $21,000, that is multiplied by running through a series of years. Now, I am not just like the darkey who maintained the President was his servant and sustained his position by claiming that the President was the servant of the people and that he was the people: I know something about work, about manual labor. I have plowed and dug; I have chopped trees, and rafted logs and run them down the river to market; I have dug coal; I have done this hard rough work more than half my life, and I have tried the profession of the law on the other hand; and I tell you that the farm-work, digging coal and rafting and all that sort of thing is nothing compared with the labor required of a circuit judge. I know something about what their labors must be by my connection and business with them; and I know that in digging coal ten hours a day, I should have lighter labor than I have in the calling I now resort to for a living. I know it is severe labor that we demand of a judge; a responsible position; a position in which his expenditures must be greater than in private life. We must conclude that men are men, and that in order to get a man's services you must pay what he could get elsewhere. A man's services are worth what they will command. I have no personal interest in this matter. On my own account I do not care what you make it. But it is a matter of interest to me and every man that you give us an efficient court.
No man can deny that a man's services are worth what they will command. What inducement has a man to leave a practice of $3000 a year and turn aside for $1600; to throw it down for six years on the bench - to do more work and get half pay? But there is honor in it! Not much under those conditions. You will soon rob the post of that, and then where are you? I want an efficient court, and to that end we may well expend whatever is necessary. I do not want to go one cent beyond that.
I have perhaps made another long speech. I had not intended to open my mouth on this question and should not have done so but for the fact that I saw a disposition to follow whatever may be supposed to be a popular demand for what seemed to me inconsistent with a good judiciary. I know, sir, that you can find men in my county and all over this country who would be willing to require a man to occupy the position of judge and yet would not be willing to pay him over $300 a year. They would say he might live on that and let him do it; but I think this is not the general feeling nor does it extend to any great extent; and while it is a popular cry - cheap government! Cheap everything - yet when you talk about the practical workings people will require of you such action as will secure a court.
MR. STUART of Doddridge. I do not desire to weary this Convention. It is known to the Convention that I resisted every motion to reduce the compensation of the judges of the supreme court. I was not afraid to go on the record in that. I vote from sentiment, principle, what I think is right. I am not influenced by any outside pressure, and I don't speak here for buncombe. I am governed by what I think is reason. There is some reason when I insist the judges' salaries shall be reduced to $1600. Whether, when I voted to keep the salaries of the judges of the supreme court at $2500, I represented the wish of my constituents, is something I am not yet posted upon. But what the gentleman terms the "whims" I do not know. If he means by "whims" the wish and desire of his people or mine that the salaries may be reduced to $1600, I know that is the whim of my people. I would be for carrying out this whim or resign my position if I did not do it. The people have a right to be heard as much on this question as on any other; and if I think it is their sentiment, their wish, I should reduce these salaries then I am bound in good faith to carry out their wishes. The gentleman is totally mistaken upon the action he has referred to in our convention at Richmond last winter - totally mistaken. I could name gentlemen who represented various districts in northwestern Virginia who were elected as Union men who said their people were not prepared and were not proper judges on this question and they acted on the principle that they knew more than their constituents. Now that is the reason -
MR. HALL of Marion. Did not every secessionist from the northwest openly declare that the whole sentiment of this country was in favor of secession before the ordinance was passed? Did not Turner and Woods and L. S. Hall openly declare that that was the sentiment?
MR. STUART of Doddridge. These men came there and were the very first to speak in the City of Richmond before there was any popular excitement, when they knew they represented Union constituencies and then at that very stage sought to carry this state out of the Union and voted for it. They said they emphatically stood by their people; that their people were not prepared to judge of the question and that they were there to go for themselves and they would act on the principle that they would do what they thought the necessity of their constituents required at their hands. That is the fact. Had the people not been fooled, there would have been no inducement held out.
But enough of that question. Now, I must be permitted to say that I am somewhat familiar with the labors of these judges, and it seems to me the gentleman has entirely dodged the real question at issue. The real question involved, the one that we should look at, has not been met by the opponents of the motion I have made here - not the least. Let me say, sir, the labors of the judges of the supreme bench are three times as great as the others. With this fact every lawyer who is acquainted with the facts certainly feels willing to testify. The labors of the circuit judges are not nearly so great. The judges of the supreme court day in and day out have to examine and pry into the musty records and revise the decisions of the other courts. Their labors are mental labors continually and they have no release from it, not even after they are off their duties on the bench. When they retire to their homes, they are there continually and perpetually investigating these rules of supersedeas and other motions made, sir, day in and day out, and I never found an idle moment these judges have had. Their labors are enormous, labors that wear out the constitution of any living man. That is not on the argument, it may be said why not increase their salaries? I was willing to do so; but when you have reduced their salaries to $2000 you must look at this fact: it is necessary to get the best men on the supreme bench, or where will we stand? Absolutely necessary. Unless this Convention now agree to reconsider the vote fixing the salaries of the supreme judges at $2000, it is absolutely necessary that you reduce the salaries of the circuit judges to $1600. Now, unless you want to reconsider that - and I have not heard that question argued here - or have never referred to it - if you fix the salary of circuit judges at $1800 or $2000, do you suppose you will get your best men who will run the risk of going before the entire State and getting their judgeship and assuming labors double those of the circuit judges? No, sir, they will offer their services where there is the least labor and the best pay. Men of reputation, standing and learning would have no difficulty in getting a circuit judgeship while there might be some difficulty in the way if he offered himself for judge of the supreme court. And yet there is no additional compensation to induce him to take this responsibility on himself. It is absolutely that we have a good supreme court bench because we have the very best judges on the circuit, the decisions of the higher court would not command influence or respect. It would not do to have the lower court better than the higher. This is why I would vote for $1600. Then if you conclude to raise the salaries of the others I would vote to increase the salaries of the circuit judges; but until you do that, I am satisfied the salaries of the circuit judges should be $1600. It has been asserted here that the judges who go upon the bench are entirely dependent upon their salaries for a living. Just the reverse is the case.
MR. HALL of Marion. In reference to the salary when it was $1500. Was not that when they held it at that salary?
MR. STUART of Doddridge. I have not reached that subject at all. You have no right to correct me on that. This motion appears to be predicated on the fact that judges when they are elected are entirely dependent on their salaries for their wants. I say that is not the fact. It is a mistake in nine cases out of ten. When a man is sought for the office of judge, he is a man who has raised to eminence through his practice. His practice has made him independent in almost every case - wealthy and independent. He accepts this for the honor more than for anything else. It is not for the compensation but from the fact that he knows he is qualified and can do honor to the station. It is argued that $1600 will be no inducement; we will not be able to get the services of our best men. Our prosecuting attorney gets no salary at all scarcely - a more pitiful thing. I have in almost every instance found it commands the services of our very best men. Your very best lawyers have heretofore in the State of Virginia been willing to accept the office of prosecuting attorney of your county, when perhaps in many instances they would obtain one fee greater than the pay for an entire year. I was struck with amusement last winter when I was told in Richmond that Robert E. Scott offered his services for prosecuting counsel in his county. He was absolutely defeated - the best lawyer, the soundest and purest mind, I believe, that lives in the borders of Virginia. He would retain a fee one-fourth greater than his entire salary for the year. And why? The reason is that these men are willing to serve the public. They do not feel dependent on a little salary. They do not look at it in that way. They look at the matter of honor and they want to carry out the interest of the people of their country. That is my experience, sir. Now, I am for reducing these salaries as low as possible to reduce them and command the services of your best men. Salaries of $1500 or $1600 have commanded the services of the best men in Virginia. Why will not it do now? The gentleman says because living has become so expensive. You can live here in West Virginia now much cheaper than you could in east Virginia prior to 1860. I believe we always will be able to do it. Get these services of the ablest and best men. I am not for giving these men such salaries as will induce them to run into luxury and high living. My experience is a man who is judge should live prudently without running into these luxuries. I am not niggardly in my views on this matter. I should think a man should live right but there is no necessity for running into these luxuries and high living. I am for curtailing it if possible, not holding out this inducement to the people to believe that these officers can live better and that they will follow the example of men with high salaries. Why, sir, the officers of the City of Richmond have been paid high salaries, and they have prostituted the morals of our country more than any other. John Letcher and Wise in the last ten years have done more to destroy the morals and injure our country more than any living men I know of - more luxury; more high living; more drinking, and want of attention to public business than I knew any place in my life. These men were given salaries that they were bound to look after these affairs and use economy. Such inducements should not be held out.
Mr. President, I am certainly in favor if the salaries of the judges of the supreme court are to be $2000 of reducing those of the judges of the circuit courts to $1600; unless, gentlemen, you reconsider that motion it is absolutely necessary if you want your best men on the supreme bench.
MR. SOPER. I had expected to give nothing more than a silent vote on this question. So far as the vote has been taken it has been seen that I am with that portion of the house who are for reducing the salary of judges below what is reported by the committee. Perhaps it may be necessary I should offer a word of explanation so as to have it seen what my motives are in the course I have pursued. We all agree it is important for the interests of the country we should have an independent and intelligent judiciary. We are now met with the objection, and it is said, that unless we give the men we wish to elevate to these positions a salary that will be what they consider an equivalent for their services, you cannot get them. I believe the experience of most men who have had an opportunity of witnessing the class of individuals who filled these several positions in the community, will tell you that you will never find any difficulty in getting men of the necessary capacity to fill your offices. We have provided in this Constitution that no man shall be eligible to these offices until he arrives at the age of 35, and we are told here by gentlemen that they have got practice, that there are lawyers in the community that have a practice worth - I have heard one gentleman name; the gentleman from Marion speaks of a practice worth $3000, and that such an individual would not accept of the office. If a man at the age of 35 years, with all the vigor and energies of a good constitution and with a rising family has got a practice of that kind worth double the salary offered, he may feel it for his interest for a few years longer to continue in the practice of the law; but when he arrives at the age of 45 or 50, if he has had such a successful practice as gentlemen speak of here, he will have accumulated a competency sufficient for any man who is not so avaricious as to render life uncomfortable. We all know there is not a more honorable position than that of judge on the bench of our court of appeals, and even of our circuit courts. There is no more honorable position within the state and successful men at this age have no right, surrounded with all the comforts of life to refuse. Gentlemen talk about the lucrative practice of the law. I know there are a few individuals who have this in every state, but it is confined to a very few. Very often men who stand high before the juries of our country and who command the whole range of practice on one side or the other within their counties before the circuit courts - who in the estimation of the people are very learned men in consequence of their fluency and ingenuity and their manner of working on the feelings of the people - I have known men of that description to be considered the most prosperous and flourishing at our circuits. But let me say they are the least competent. You may have a humble individual among you, who may have been living with you eight or ten years who may have been estimated in the eyes of the community far from being a learned man, who from his modesty and industry may have accumulated a store of learning that would well fit him for the bench; and I venture to say our most learned men on the bench were not men who stood high in their practice before juries. I know there is a great difference between men whom our people at large esteem of great capacity and who perhaps are successful men before a jury and when they come before a high court their inefficiency is seen; but it is this man of a clear logical mind and industrious habits, who understands his case and prepares his brief, who has his authorities in hand, who can get up and in a few words addressed to the court present his case in a clear and logical manner. That class of individuals, so far as I have known anything of them have been men of but moderate practice, who if requested would be very glad to take a position on the bench with a salary of $2000 a year in a matter like this. And they would make the best judges. Just so, sir, in relation to the circuit courts. There are a great many young men - we have in our report provided they shall be eligible at 35 - there are a great many young men in the State of Virginia whose minds are not yet developed but who are men of honesty, of purpose, industrious and steady habits, who are probably well-read in the law. Well, now, suppose you place an individual of that kind on the bench. You are putting him in a school of law that will fit and prepare him for the most elevated position in the judiciary of your State; and there are I have no doubt within this State many individuals that will be very glad to assume that position and think themselves well compensated.
Well, now, another thing, I have met and heard a great many lawyers of the best, of very extensive practice, and how much money they are earning, but I have never discovered but one single rule on that subject. A young lawyer - a young man, particularly a lawyer - ought not to consider that he has earned so much money in a year until he has got it in his pocket. He ought not to assert his practice in that way; until he gets the money in his pocket he never knows what he has earned. You place a man on the bench and give him two thousand dollars a year. He goes to the treasury of your State every quarter and draws his money. He is in no ways perplexed or harassed about getting it, or put to any trouble about it. There are many men within the State of Virginia who would give away a practice, fluctuating as it is at the bar, of $3000, with the uncertainty of getting his money for a position on the bench when he could receive without any trouble $2000 in cash in quarterly payments rather than run the risk of getting $3000 scattered all over the country. The same remark applies to the judge of the circuit bench.
In regard to the immense labor of the judges of the court of appeals, when a man goes there his mind is disciplined; it has been his every-day work for years. I know gentlemen are very apt to take up a book of reports and they see a great list of authorities cited, and the superficial reader will say what a wonderful learned man; how much labor that man has expended; only see the number of authorities he cited, I have seen young men who would make the same remark in regard to a lawyer's practice. Well, now, when they get a little more experience they will find these learned men are not working themselves to death or so hard as many men think. When you go to the rules of our court, you will find in every cause that is presented there for argument the lawyer who appears must have his brief printed. All the judge has to do is to go back to his library and take up the briefs and see which of these gentlemen has been the nearest perfect in his statement of the law that should govern. It is all laid out to his hand. I mean now in almost every case. Now, these gentlemen in this high and elevated position have a regard for their comfort and their health. They know that there is no power upon earth that can compel them to endanger either. And what is the result? Why, you find both in the court of appeals in Virginia and in every other state where you have a man on the bench an accumulation of cases there that it will take probably years to dispose of. Now, how do these gentlemen on the bench proceed? Why, they will hear arguments in cases until they think they have enough to occupy their minds during vacation; and the presiding judge, the chief justice, whoever he may be, after they have a little consultation will hand out to one gentleman and say, "You take that cause," and to another, "You, that and prepare your opinion on the subject," and we will then compare notes and determine the case. Well, now, do you find these men rising early in the morning and going to work, or sitting up at midnight to get at the true points of the case? Why, sir, if that is the character of Virginia judges they are an exception over all other men I ever knew in such position. We say they would decide the cases as fast as they could, and they would have them decided rightly. Now, there are two classes of cases. Probably in one of them the points are so palpable and plain that the judge decided them right off at once, unless the law of Virginia requires that in every case the opinion be written. If so, it is necessary that even in one of those clear cases they hear the argument on one side without hearing counsel on the other. A case is often so plain it is often decided without hearing both sides. And unless there is some statute law in the state which prohibits these quick decisions - unless there is something to prevent it, a great number of cases will be decided in that way. I apprehend a great many of these lawyers who accumulate a sufficiency in life when they get to be 50 years of age would be willing to take a position on the supreme court of this State as one of ease and comfort. Because I lay it down as a rule that a man who has been in the habit of work all his life could not break off and do no work without being most uncomfortable. He must have something to occupy his mind continually. I apprehend we shall have no difficulty in this State to get men to fill our bench in the supreme court. With the circuit court it may be different. I understand the lawyers in a great many of these counties have entirely left it and it may be some time before we can get good competent men in all the benches of the circuit courts. But if we get difficulty there, we will most assuredly have our court of appeals to correct it.
Something has been said about the will of the people. We ought to represent the wishes of the people. I have got a word or two to say on that. In the county I represent here, the most objection I heard to the new State is this: why, sir, I would like very much to have a new State, but our taxes are heavy and you cannot reorganize a new government here unless you make a very expensive government; and that is in the mouth of every man of secession proclivities, and they are frightening a very great many honest Union men with this plea of expenses that the friends of the new State will necessarily bring upon them. Well, sir, that objection, of public opinion, is entitled to a great deal of respect and it becomes us to be careful to see how we act so that we do not give the enemies of the new State this weighty argument to act against us. Now suppose we are met by the people below, and we go to them on the subject of the judiciary. Why, sir, we will be told, here is the whole State of Virginia, a million and a half of people, and here are five judges of a court of appeals and you give those judges $3000 a year - $15,000 a year. You have taken less than one-third the territory of Virginia, with less than one-third the population or wealth. You have given us three judges of appeals. It is true you give us but $2000, but that amounts to $6000, whereas, the one-third of the court of appeals of the old state would only amount to $5000. Gentlemen, you see the argument before the people will be against us. Come to your circuit judges. We had under the old arrangement within the territory of this new State four circuit judges, at $2000 apiece, amounting to $8000. We have now nine circuits and we propose to give these judges $2000 each - $18,000. You see what an advantage they are going to get over us; and unless we can get the aid of the people we never can get our Constitution ratified. I want gentlemen to look at this thing. The people thought one-half of these circuit courts would have been sufficient to do the business. I go further. If I could carry out my views, I would have about five or seven judges on the bench of the supreme court and give them $2000 apiece and would have required these gentlemen to hold the circuits as well as decide cases on an appeal. I believe where that system has been adopted fewer cases are taken up; the people are more satisfied with the decision of them at the circuit, and when they are taken up they are as well disposed of as they will be under the system we are about to initiate. Aside from all that, sir - which is not before the Convention - I am now meeting it just as we have got it, and I call the attention of gentlemen to the extravagant arrangement of the judiciary we have got here under our new State organization compared with what it was under the old constitution. We may be told that the only ground that we can stand upon is that we have throw aside our county court and organized justices of the peace and that we have given them jurisdiction to $100 if the people wish it. Well, we will be told you have got concurrent jurisdiction to the circuit court, or more probably that the people will have their choice on this subject and they can go into which court they please, and it will greatly reduce the business of our circuit courts, and we will then be able to say we have dispensed with the expense, to some extent, of the county court but which we will account for in this increase of the salaries. There is no other argument we can resort to, sir. But how will we be met on that subject? Why, we will be told that instead of taking, in Tyier, 16 judges out there, $3 a day, we ought to have taken and curtailed their expenses, and instead of having five judges at each quarterly term you ought to have had a less number, and instead of monthly terms you ought to have had them, probably, quarterly. We will be told all this. We have got difficulties on every hand to put it in the most favorable point of view that gentlemen can before the people. I wish, sir, there could be some discretion given to the legislature on this subject; so that if our system should be found not to work well - and if this matter of dollars and cents is to be the controlling influence in order to get competent men, if the people at large learn that it is - they would have an opportunity of doing it. We must not forget that we have not got a wealthy country. If the resources are here, buried in the earth, they have never been brought out. It will require great labor and expenditure of money before these rich physical resources which we suppose are buried in our mountains are developed. But I tell you, from present appearances, take the territory of western Virginia and it is a very poor country and hard to live in. It is an unfavorable country on first view, and we have men that want to leave the farms, and leave there. I say we are comparatively a poor people and ought to economize; and I believe if men had the real and proper feelings in order to bring out the resources of this country, our best men would be willing to fill these places at even half those prices. I grant you, sir, the grasping man, the penurious man, the avaricious man, would not do it; but the man who possesses the arts to live by using economy if he has got the love of his country and wants to develop the resources of his State would be willing to make the sacrifice, particularly as he advances in years. We have also got to look at the unfortunate condition in which we are now placed. We must not lose sight of that. Even now there are gentlemen sitting here who can attest to the fact that many portions of our country, not very rich at best, have become almost destroyed. The people, we are told, are unable to pay their taxes now. We have got to look at another thing. If we get our new State, there is no telling what amount of debt will be encumbered on it in our settlement with the old state. I am not so sure we are going to be a new State free from debt. I am not in possession of statistics enough to arrive at a conclusion. I hope it will turn out that on an equitable adjustment of this matter we will be free from debt; but there is another point of view in which we must look at it. We have got to pay our proportion of this rebellion and it is constantly increasing and we are told by high authority that the expenses are incurring at the rate of two millions of dollars a day. Well, now, with the depreciation of property in the midst of the prosperous parts of our country, this enormous daily increase of expense - we have got to look at it; and while we hope it may be favorable to us, in its most favorable aspect it will be a burthen on the people and require a great deal of love of country to bear up under it cheerfully. Well, now, sir, we ought not, if our Creator has blessed some men with superior minds and position and has placed them in comfortable circumstances, one of the great objects is to do good to his fellow men; and are we to be told that because those men have been so highly favored by the Creator that the more humble individual shall not ask his services in taking care of the cause of the country? Away with this sort of argument. There is love of country and patriotic feelings where you find the hard hand and willing heart that takes up the musket; but besides, there is an intellectual order of men in the community who will take care of the best interests of this people who are taking care of the liberties of your country. It is for reasons like these that I am for saving these large sums in the salaries of our judges. I would rather vote $1600 than $1600 for the circuit judge; and I believe I have as great a respect as any man for the independence, honesty and integrity of your judiciary. In these trying times I insist upon it the best men in our country are ready to make sacrifices in any position they can do it and at the same time benefit the country at large. I am for the lowest amount of salary that has been named yet; and I will repeat that if we emerge from the difficulties with which we are surrounded and we become a populous and flourishing and wealthy people, I should like the legislature to have the power of compensating every man and particularly those men who come forward in our day of trial and make sacrifices for the purpose of building up the new government and new State.
MR. VAN WINKLE. Mr. President, it seems to me we have spent an extraordinarily long time on so simple a proposition as this. It seems to me that there could be said all that has been said two or three times over and we ought to be prepared at least to come to a vote. We have expended 45 of our 65 days. Gentlemen can calculate how many we have left. If we go in this way we shall have to make a large addition to the session. I am afraid, sir, there is a little prejudice against my friends, the lawyers, in all this. Now I said against them myself all that can be said against them, and they are not as bad always as I represented them. I know, sir, a great many people have the habit of talking against them as a class who do not mean the half they say. Intellectual abilities are always high-priced in the market, and I think we ought to be willing to give the market price for them. They command the highest prices everywhere; and I do not think there is any place calling for the exercise of more intellectual ability that are so poorly paid as judges of the state courts. Judges of the Supreme Court of the United States get, I believe, $6000 a year. That may serve to help raise the ideas of gentlemen a little. But in reference to the question now pending before us: here is $2000, $1800 and $1600 now proposed. I propose we take the medium sum and get rid of the question. If the vote is taken as I understand it, as it stands now, the first vote will be on $1800. Let those who think we may spend as much money in discussing this court as would be saved, if we discuss it two or three days longer, consider whether they may not be willing to leave their present ideas and come up to this, which is an average. I think, in the first place, that $2000 was sufficiently low, even taking into consideration the present state of the times and the condition of the State. Other gentlemen think with me, that $2000, as reported by the committee, is as low as it ought to be. Other gentlemen think we might go down to $1500. A third proposition has been made to fix it at $1800. I propose and even solicit the members to let this vote be taken on the $1800. There is no other way to compromise these differences of opinion. A compromise does not mean to go to either extreme, but to go somewhere in the middle. I think we had better vote this question - at any rate come to a vote on it.
MR. BROWN of Kanawha. I beg leave to say a word in conclusion as chairman of the committee. I believe all the gentlemen who have spoken have agreed that the real object is to give a competent salary. I believe all have agreed on that. I have listened to the arguments on both sides and have not heard one that seemed to controvert the proposition that judges, like every other officer, should have a competent salary for the services rendered. The only difference, as the gentleman from Wood remarked, is as to what that competency is. One part of the Convention takes one view; another the other. Now, in adopting a fundamental rule, let us see if we cannot act without making either buncombe speeches or ranging beyond the limits of the question; cannot reach the real question at issue. How are we best to arrive at that fact? Is it to ascertain what men ordinarily receive who are to be called to this office or by looking around seeing what other states give for similar service? Now, I imagine other people do as we do. If Ohio give $3000 and Pennsylvania and Virginia give $3000, and Kentucky the same, I take it this is some evidence to show that the little State of West Virginia, right in the middle, should have some guide. Unless we are wiser than all our neighbors. Well, I presume another thing, that although this little State may be smaller than any of those states, yet a judge under this Constitution will have exactly as much labor to perform as one on any of those states; and therefore on a question of simple remuneration for services rendered would have the identical same claim on his State for a salary that the others would have. Again, I suppose this little State, although she will be small in numbers compared with those larger states, yet she will have a little character and reputation from that glorious commonwealth of which we form a part. I suppose that we are not intending to lay down all that has ever rendered the Commonwealth of Virginia glorious among the commonwealths of this Union. And I imagine there is another thing, that when we West Virginians shall get together with our neighbors over the river, on one side, or Pennsylvania and Maryland, on the other, or Kentucky on the other, and talk about our officers, these gentlemen will say, "We give these our officers so and so because we think their services are worth it, the West Virginian would feel a little shame crimson his cheek to be compelled to say: "my State gets on with more economy and saves money on her judiciary by requiring the same services for a little less money." I would think the West Virginian would like to stand up and say: "although my State is small she gives a big salary; we do not go on the plan of trying to squeeze out of our officers the same labor for a less price than other people do."
There is another and good argument, economy. I have practiced economy all my life and expect to do it as long as I live. If any gentleman lives plainer than I do, I should like to see him. If any gentleman has a greater contempt for extravagance I should like to have him come forth. But at the same time, gentlemen, there is a principle I have ever acted on, and one that I have never yet seen cause to cast away; and that is, whenever I undertake to do anything, first to determine whether or not the thing was worth doing at all, and if it was then to do it well. If I have anything to get, the first inquiry is, is it worth getting at all, and if it is then to get the best. If I go to buy an article I require, I don't buy until I need it. If I need the article, I want the best of the kind. I have no doubt if my friend from Wood would go up the street into a shoe-shop and ask for the best article and the merchant handed him out a pair of split-leather brogans, he would say, sir, that does not exactly suit me. But, say the merchant, this is the best article, right from the factory. What is the price? A dollar and a half. I will look a little farther. At the next store he tells the merchant he wants the best kind of a shoe. Very well, sir. The merchant shows him a pair just such as he wants, price two dollars and a half. Why, sir, I have just had offered me a pair of the best quality at a dollar and a half, and how is it you propose to ask me a two dollars and a half for the very same kind of an article? Well, now, the man may say, I have made those shoes of the best material and have put on them two days of honest labor and I must have something to live upon; and if you will not give two fifty I will have to take two and a quarter, and if you will not take them at that, I will have to take a dollar and a half. Now, will you in the formation of a constitution deal with your people on this principle? If you do what is the result? You will soon beget in the minds of your whole people that same kind of a spirit that will be continually impinging on the rights of others - constantly seeking to get everything for a little less than it is worth. Now, I do not understand that is the way a good, magnanimous state - although a small state, and however poor a state - will deal with those whom it calls to the public service. My idea is not to tolerate extravagance anywhere. I utterly repudiate it and have warred against it all my life. At the same time, that same principle which reprobates extravagance always, with an eye single to economy and justice requires me to pay that which is a fair and liberal compensation for services rendered or duties required to be performed. And when you have acted on this principle neither your officers nor people will ever have cause to blush. I can even remember when I was a little child hearing a little coterie of children at school looking through their books and commenting on the salaries paid to officers in the public service, the comments of the little fellows indicating the national spirit of pride in the liberality with which public officers were paid for their services. You will find that feeling in the very lowest orders of society; it grows up with the growth of the people, and the children in the primary schools catch the idea that characterizes the public spirit as exhibited to the world in your constitutions and your manner of dealing with your public officers. Would you prefer to cultivate in the public mind a spirit of niggardly meanness? I trust not. On the contrary I think we should cultivate that which is liberal but reasonable, just and right. The main argument here has been, not what is right, but what will suit the people - what will please them when you go home; not to fix salaries on any recognized principles and exercise your discretion to make your Constitution provide for what is just and right as between the public and its servants. When it comes back to my people they will judge whether I have done my duty; and if I have spoken that which is nearest right, I have that respect for their judgment and their intelligence and justice to believe that they will approve the right; and that when I go back, I will not have to say that I tried to make a constitution that would please my people but to make one that was right, believing they would endorse it because it was right. That is the principle on which I act, and if gentlemen cannot go with me on that principle, then I must go without them. I have had clients employ me on many occasions, and have had some undertake to tell me how to arrange their business. I have said, sir, if you know how to do this business better than I why not do it yourself. I have had others say, I employ you to do that business to avail myself of your experience and professional services. Don't ask me how to do it; do the best you can. That is what we employ a man for. Then the question arises, what is the price? We have the experience of your committee. It was composed of the usual number of seven gentlemen from all parts of the State, representing perhaps all the interests of the State; who have calmly, deliberately, carefully considered this question and have given you the best judgment they have on the subject. Apart from that, we have detailed to you the experience of all these states around us. Apart from that, look at the labors the judge has to perform. I put the question to the people of West Virginia, is this Convention to act on the principle of the bargain hunter going from shop to shop, trying to jew down the merchants and shop-keepers below a living price, with the idea that we will be "saving" something? Are not we willing to do honestly and right and to be just? I do love Virginia, with all her faults. Everything I have on earth is in Virginia, and with them I expect to live and die. And I have never yet - and I am intimately acquainted with a large portion of the people of Virginia - 1 have never yet found that people, when put to the test, that they ever failed to give that which was fair and just and right and honest before the world; and I do not believe they will ever flinch under such circumstances. You may call us poor, and in some respect we are poor; but, sir, we are not depraved; and in this case as in every other; and not only in regard to this office but every other office in the State, I do not go on the idea that the low-priced thing is the cheapest; that mere cheapness in price is economy. We want the best article, and if is the public interest to get it and pay a fair price for it. Indeed, it is almost certain - it is certain in nearly all cases - that if you pay a low price you will get a low-priced service, for the valuable men whose services we need will not give you the best years of their life, after long years of preparation and labor to fit them for the work, for inadequate pay. They cannot afford it; we have no right to ask it. I have given you my experience, and the conclusions I derive from it. You are welcome to these for what they are worth.
The question on the adoption of $1800 as the salary for the circuit judges was taken, under a call for the yeas and nays by Mr. Hansley, and resulted as follows:
YEAS - Messrs. John Hall (President), Brown of Kanawha, Brumfield, Battelle, Chapman, Caldwell, Carskadon, Hall of Marion, Harrison, Hervey, Irvine, Lamb, Montague, McCutchen, Parker, Robinson, Ruffner, Stephenson of Clay, Stewart of Wirt, Sheets, Van Winkle, Walker, Warder - 23.
NAYS - Messrs. Brown of Preston, Brooks, Cook, Dering, Dille, Dolly, Hansley, Haymond, Hubbs, Hoback, Hagar, Mahon, O'Brien, Parsons, Powell, Sinsel, Simmons, Stevenson of Wood, Stuart of Doddridge, Soper, Taylor, Wilson - 22.
So the amendment to the amendment was adopted.
MR. VAN WINKLE. I suppose as the salaries are fixed permanently, the words "and shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office" ought to come out. I suppose these words might be taken out by general consent.
MR. BROWN of Kanawha. I have no objection at all.
There being no objection it was understood the suggestion was adopted.
MR. BROWN of Kanawha. Then I believe the 12th section is in order.
The Secretary reported the section:
"12. No election of judge shall be held within thirty days of the time of holding of elections of President and Vice- President of the United States, or of governor, or lieutenant- governor, or of attorney general, or of members of Congress, or of the legislature."
I wish to propose there, sir, this:
"The regular elections of judges shall be held on the day of the fall township elections," and make it read that "No special election," shall be held within thirty days, etc.
Mr. Van Winkle's amendments were agreed to.
MR. SOPER. I now move to strike out the whole section. I believe it is entirely unnecessary. Leave the elections to be disposed of by the legislature. I have in the course of my life known something of holding those judicial elections, and there is some objection to holding them at the annual elections. The ground on which it was advocated was this: that we ought to be careful to have our judiciary elected without political preference; so far as our judges are concerned they ought to be kept out of the political contests of the day. But, sir, it was found, and I think it will be found everywhere, that while we are desirous of having our judges elected independent of political considerations, yet it will be almost impossible to do it; and if you have an election for judges who are disconnected from political considerations, you will get very few people out to your election. If you have it on a day separate and distinct from the other elections. In the present state of the country, all party predelictions have been merged into love of country. I do not believe there is a gentleman in this Convention who has not laid aside all former political considerations, looking to the welfare of the country; and when we are going to elect the officers, we will look for the most competent men to fill them. But this state of things will pass away. We shall have peace again, whoever lives to see it, and prosperity in our country, and party lines will be drawn again, in more or less degree, in the election of our judges. The result will be you will find between contending political parties looking forward to fill these vacancies on the bench; and instead of its having a bad influence the influence will be beneficial, because each party will strive to get the most prominent and fit man to fill the office. Therefore, I believe, sir, as far as I can look from experience on this subject, I am certain it is best to have the election of judges at your annual election for State officers, because some of your judges are State officers; others district officers, and you are sure to have the people out at that election. They will then express their opinions on this subject, as intelligently as they will if you have a day set apart exclusively for the election of judges. I should like to see the Convention reconsider the vote fixing these annual elections in the spring of the year and fix it in the forepart of November, so that whenever it comes around it should take place at the same time as the presidential election. It will insure a full attendance of the people. You will therefore upon such elections get the expression of the people much better than you can at any other time. As to the frequency of elections, they ought to be dispensed with whenever they can be. If our new State goes into operation, we will not trespass on the wishes of the people if we have two elections, one in the fall and one in the spring; one for the election of town officers, the other for the election of all other officers. I believe it is best and safest to strike out this section and leave this whole matter to the legislature as they may see fit hereafter.
The motion to strike out section 12 was agreed to.
MR. CALDWELL. I ask permission of the Convention before we proceed further to offer a resolution for the consideration of the Convention.
The Secretary read it:
"Resolved, That from and after this day the per diem of the members of this Convention shall be three dollars."
MR. CALDWELL. I was going to say I think it is evident to all of us that we will not be able to get through with our labors and the discharge of our duties in the forming of this Constitution within the sixty-five days. This suggests to me, what will be our remedy in that event. I have the assurance of members of the legislature that in all probability - and I might go further and make the immediate declaration that there is no probability at all - of the legislature contributing one dollar further towards the expenses of this Convention. Well, sir, if that is the fact and the members of this Convention seem satisfied that within the sixty- five days we cannot complete our labors, what redress have we? I am, sir, not disposed to cut off free discussion on questions that arise of so much importance in the formation of this organic law. I would not be disposed to limit the discussion at all. I have not attempted to do it any way. I think we should have free discussion and it is for the benefit of us all that we may get to right and proper conclusions. Well, sir, this discussion must go on; and from the evidence we have had of the time it takes, and the fact that almost every proposition is contested, that sixty-five days will not be sufficient to complete our labors, the only method then by which we may avoid sitting here after the expiration of the 65 days without any compensation at all will be to reduce our per diem from $4 to $3. It is entirely competent to do it. We may agree, I suppose, to sit here without any compensation, but I think it would be more wise on our part to meet this contingency. The session of the Convention must exceed sixty-five days, and in order that we may not be sitting here without any compensation at all, I trust this resolution will be adopted.
MR. BROWN of Kanawha. I have no doubt, sir, that we have spent in the discussion of the questions before us quite as much as we can save by the proposition for reduction. I am one that desires to practice what I preach. While I have been setting an example in regard to others I think it is but right to begin with ourselves; and I will very heartily concur with the proposition of the gentleman from Marshall and shall go for it with a great deal of pleasure.
MR. VAN WINKLE. I think I am in favor of this proposition. I do not feel that it would be right for us after having fixed the pay of the members of the legislature hereafter at three dollars a day - having thus given in our verdict that three dollars is sufficient - to exact more ourselves. The thing did not occur to me until the resolution was offered, but now that it has been I could not vote against it conscientiously; and I hope, sir, also in view of the charges, things that have been said elsewhere, about us, we will generally be glad to avail ourselves of this opportunity to show that our object is not a sordid one; that our desire is only to take as much time as may be necessary to perfect this Constitution and not, as has been charged, for the sake of the per diem. By reducing we are consistent with ourselves in coming down to the basis we have passed upon and have set an example for the legislature hereafter, and also giving evidence that we are serious in our votes; that the object is to make and perfect a good constitution, and that we are not seeking for private benefit.
MR. STUART of Doddridge. I want to bring this right home to the gentleman from Marshall; and as I know there are certain gentlemen who this thing operates on more rigidly, I move to amend the motion to say that all members living within one hundred and fifty miles from this place shall be three dollars a day - and that includes myself. These gentlemen who come here a long distance and get no mileage, I do not feel like curtailing them. They have been here but a short time. I will go for even two dollars if the gentleman wants it.
MR. DERING. I am decidedly in favor of the resolution. I don't believe any member of this Convention has come here for the sake of the pay; and I think three dollars a day will pay our expenses and let us go home.
MR. BROWN of Preston. I, too, am heartily in favor of the proposition of the gentleman from Marshall. I think, sir, it is not very consistent for us to preach one thing and practice another. I have no doubt of the fact that after this reduction is made we will still have perhaps enough to pay our board and get home without getting in debt very much. I shall heartily support the resolution.
MR. HERVEY. I want to know whether the proposition before the house is designed simply to use up the $16,500, and in order that we may use up that $16,500 whether we prefer staying here to sitting any place else. And if that is the conclusion, I think we had better put it to vote. If the proposition is just to use up the appropriation without reference to the formation of a constitution, and occupy as much time in Wheeling as possible, why two dollars will accomplish it better than three. But has the fact been demonstrated that there is any propriety in making the proposition now? I was not in when the resolution was offered. I am in favor of economy, but has it been demonstrated that we are not going to have money enough at four dollars per day to make this Constitution, and that it is consequently necessary to reduce the pay in order to string out the time? It strikes me there is no economy in it. If we reduce it to two dollars, the enticements and allurements are so strong they will keep us here until the appropriation is used up at all events. I believe if the resolution is adopted, it will result in loss to the State in the end with ill consequences. I am still of the opinion we can complete this Constitution within the specified time. At all events, the passage of the resolution does nothing more than simply hold out an inducement to the Convention to remain - a longer delay. There is the legislature, sir. Suppose you prolong the time for one, two or three weeks. Is it not a good point to get this Constitution before the people as soon as possible in order that it may be acted on by the people and then presented to Congress? This is just holding out a bait to the Convention - not designedly - not at all, but it must result in that - to prolong the time and finally defeat the Constitution perhaps. I have never thought about it. I have never made the calculation. We have got nearly thirty days to finish up this work. I believe it can be done in that time.
THE PRESIDENT. We have three weeks to-day of working time. I am satisfied the work would be done in that time, but if the pay is reduced the work will not be done within that time, and there is no principle of economy in it. It will not work that result. The appropriation will be used up on the $3 principle, and it will be used up on the $4 principle. That should not be the motive which actuates members here, and I do not suppose it does; but I do think the passage of the resolution will prolong the labors of this Convention, and just in so much tend to defeat the Constitution itself.
The hour having arrived, the Convention took a recess.
The Convention reassembled at the appointed hour.
THE PRESIDENT. When the Convention took a recess it had under consideration the resolution offered by the gentleman from Marshall, with the amendment offered by the gentleman from Doddridge.
MR. STEPHENSON of Clay. I propose to offer a resolution as a substitute for the amendment:
"Resolved, That the President and Secretary of this Convention proceed forthwith to issue certificates to members and officers of the Convention dividing the amount of money appropriated by the legislature for the expenses of the Convention between the said parties without regard to the number of speeches made, and that the Convention hereby pledge themselves to remain and complete the work for which we were convened." (Merriment.)
If any gentleman has any proposition to offer that would be more likely to get the votes of a majority of the Convention - as the object seems to be that there is a certain amount of money and that amount must be expended and that it must be made to last as long as possible - now, if any gentleman has a proposition that will more readily effect the object -
On call from several members, the Secretary read the resolution again.
MR. VAN WINKLE. I think the resolution should be printed - for the information of the Convention, and the rest of mankind.
MR. SOPER. I move to lay the whole subject on the table.
MR. BATTELLE. I move, as an amendment, that the resolution last offered be laid on the table.
MR. STUART of Doddridge. You cannot lay an amendment to an amendment on the table without laying the whole subject on the table, because you cannot consider the amendment until you first consider the amendment to it. Consequently if you lay the substitute on the table, the whole subject goes with it.
MR. BATTELLE. It is perfectly competent for the Convention to lay not only an amendment but an amendment to an amendment on the table. My motion is to lay the amendment to the amendment, viz: the proposition last offered, on the table.
MR. VAN WINKLE. A resolution was pending before this body, and now another resolution is offered and received by the Chair. I say that is out of order.
THE PRESIDENT. This is offered as a substitute, of course, and the motion of the gentleman from Ohio is to lay the motion of the gentleman from Clay - lay the whole - on the table.
MR. VAN WINKLE. That is an indispensable motion.
THE PRESIDENT. Then the gentleman from Ohio moves to amend that by just laying the substitute on the table.
MR. VAN WINKLE. It is certainly in order to amend the motion to lay on the table.
THE PRESIDENT. That is what the Chair had decided, and the gentleman from Doddridge, however, raised the point of order.
MR. HALL of Marion. I am not a parliamentarian, but I have always understood that when you carry any addition to a proposition to the table it all necessarily goes with it. Otherwise you defeat the proposition by indirection. That is the inevitable consequence. The vote to lay this on the table carries the whole subject to the table. There can be no doubt of that proposition.
THE PRESIDENT. This it is supposed is an independent paper.
MR. HALL of Marion. The substitute is an amendment, and if you propose to lay an amendment on the table and leave the subject - the original motion and other amendments before the Convention, it is equivalent to laying an amendment on the table and proceeding with the rest of the subject. I meant in my former remark, with all due deference, that it is not a new proposition but is an amendment proposed to the original motion although you may call it a substitute.
MR. BATTELLE. I do not profess to be a very skillful parliamentarian but I must insist that where a proposition is pending before a deliberative body and an amendment to that proposition is made, it is perfectly competent for the body without touching that proposition at all to lay the amendment on the table. If a substitute is offered for that amendment as in this case - it is competent to lay the substitute on the table, without affecting the original proposition.
MR. HALL of Marion. If a substitute is an amendment and if it is in order by motion to lay that substitute on the table - which motion is not debatable - is not that equivalent to cutting off debate on an amendment in order to avoid discussion on the merits of the amendment?
MR. BATTELLE. No doubt at all; but in fact the motion to lay on the table cuts off debate and can be made with reference to any question pending whatever.
MR. HALL of Marion. It is entirely proper to cut off debate by such a motion when the subject is thus put aside or disposed of either temporarily or permanently. But here it is proposed not to dispose of the subject in this way, for the subject is to remain before the Convention and be acted on - to be disposed of in some other way; but this particular amendment, which may or may not have merit, we are to be forbidden to discuss by an unparliamentary use of the motion to table. This expedient is to be used to cut off debate on a germane proposition while the consideration of the original and all other propositions in reference to the main subject is to go on. That will not do.
THE PRESIDENT. The Chair would remark and hopes it will not be taken unkindly that this question seems to be one in which the house is rather disposed to joke and would be pleased to see them vote without talking to the subject much, which it does not matter very much about.
The question is on the adoption of the motion of the gentleman from Ohio.
MR. BROWN of Kanawha. If I vote for laying the question on the table I should like to know whether that lays the substitute on the table or the whole subject?
THE PRESIDENT. The effect will be to lay the substitute on the table and leave the balance of it.
MR. STUART of Doddridge. Let me further inquire whether the original proposition would then be pending. If you adopt that resolution and there is a pending amendment on the table, not disposed of, it could not be a permanent resolution of this body - rather not a conclusive one - while that amendment was there on the table.
THE PRESIDENT. The question then would be on adopting the motion of the gentleman from Tyler, to lay the whole subject on the table.
MR. STUART of Doddridge. Suppose the motion of the gentleman from Tyler is not carried?
THE PRESIDENT. It would leave the resolution just where it was before.
MR. STUART of Doddridge. Then if the amendment to the resolution is voted down, the question comes up on the subject of the proposition. Then suppose that proposition would be adopted with an amendment pending yet lying on the table?
MR. BATTELLE. If you please, it is on the table and will lie there till doomsday.
MR. STUART of Doddridge. It would derange the entire order of things if that substitute was finally adopted.
MR. STEPHENSON of Clay. Having attained my object in consuming a considerable amount of debate, I withdraw the substitute.
MR. BROWN of Kanawha. Let us have the ayes and noes on that. I understand the proposition is to lay this whole subject on the table.
The vote was taken and resulted as follows:
YEAS - Messrs. Brumfield, Chapman, Carskadon, Hansley, Hoback, Irvine, Parsons, Powell, Simmons, Stuart of Doddridge, Soper, Taylor, Warder - 13.
NAYS - Messrs. John Hall (President), Brown of Kanawha, Brown of Preston, Brooks, Battelle, Cook, Dering, Dolly, Hall of Marion, Haymond, Harrison, Hubbs, Hagar, Lamb, Lauck, Montague, Mahon, McCutchen, Parker, Paxton, Robinson, Ruffner, Sinsel, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Sheets, Van Winkle, Walker, Wilson - 30.
So the motion to lay on the table was lost.
MR. BATTELLE. I should like to have the resolution reported now, if you please.
The Secretary reported Mr. Caldwell's motion as follows:
"Resolved, That from and after this date the per diem of members of this Convention shall be three dollars."
THE SECRETARY. The amendment of the gentleman from Doddridge is to exclude from the operation of the resolution members whose homes are one hundred and fifty miles from Wheeling.
MR. BATTELLE. I move, as an amendment to the amendment, after the word "three dollars per day" to insert "and the mileage allowed to members of the legislature."
MR. STUART of Doddridge. I suppose the object of the resolution was to save money; was for the purpose of economy; saving money it would keep ourselves in the bounds of the sixteen thousand and so many dollars. The amendment to the amendment now offered will increase the expenses greater than if just left alone. The mileage for a great many of these gentlemen will be more than the additional dollar from this to the end of the session. If gentlemen will make the calculations, they will see it is so. I am willing to do justice to these men and am perfectly willing to vote them mileage but if your object is to economize and save money by the operation, you are making a mistake.
MR. SOPER. My own individual opinion is that we are not adding anything to the dignity and respect of our body by introducing resolutions of this description. A convention representing the State of Virginia called us into existence; they directed what we should receive as our allowance. We have not interfered with the per diem of the legislature in any respect whatever. Some gentleman remarked before dinner that inasmuch as we had been striving that the legislature should receive but $3 per day hereafter under our new State organization, conveying the idea that we were interfering with the per diem of the existing legislature. That is not so, sir. We are interfering with the per diem of nobody. Well, sir, the amendment that has been added to take and add mileage to the pay of the members present - there is no authority for that, sir. If we should go to the legislature with a proposition of that kind, they would say to us: the authority that gives you your per diem does not embrace this subject and therefore it cannot be done. I would as willingly as any gentleman on this floor give these gentlemen a mileage allowance provided we were authorized by law to do it. But when I see no authority for doing it, I know the legislature would not undertake to do a thing they have no authority for. I have noticed a considerable deal of interest outside of this body as to what we were doing and how we were spending our time; and there are those petulant, meddlesome kind of people in every community and they appear to be about and around, probably within our body. Now, I submit that it does not become the character and dignity of a body like this to be talking on these subjects. I again say we had no hand in fixing our per diem allowance. True we cannot draw it from the legislature except the legislature gives us the power. The legislature will do justice in this matter, and if we only perform our duty here we shall complete a work of the kind that has never been accomplished in so short a period in the history of this nation. You may go to every state that has ever formed or amended a constitution and you will find that men have devoted more time than we shall if we get through in the allotted time. If we find it necessary to stay here longer, that legislature will provide for us. I am confident it will because I believe a large majority of them are honorable men who seek to perform their duty fearlessly. Suppose they do not, however, and we draw the money allotted to us, what can we do? Why, go on, like high- minded men, and perform our work, and if we are in a community that is so mean that they will not give us our per diem allowance which the August convention intended, why let them take it and keep it. We are here perplexed with these motions, spending more time discussing them probably than many gentlemen realize; and I cannot see the motive nor the object to be attained by it or the benefit to be derived. I hope therefore the motion will be voted down.
MR. HARRISON. I call for the previous question.
MR. BATTELLE. I think perhaps the suggestion of the gentleman from Doddridge will meet the case, equalizing this thing, and therefore withdraw my amendment.
THE PRESIDENT. The question is on the adoption of the resolution.
MR. HAYMOND. I will offer an amendment to the amendment of the gentleman from Doddridge:
"Resolved that after the 65 days are out, the Convention do agree to stay until the business of the Convention is through, for nothing."
MR. SOPER. While on this subject, sir, there are a number of gentlemen in this house who are here hardly one hour in two. Some of them days and days away; but whenever you adopt a resolution of that kind you will have a quorum to transact business. That is the opinion I have about it.
THE PRESIDENT. The gentleman from Harrison will perceive that the proposition on which his previous question was called has been withdrawn.
MR. HALL of Marion. I am free to say that if I knew what would make this session earliest to its close, doing properly its business, I would vote for that. I am at a loss to know whether if we reduce it to $3 and extend the time whether that will have a tendency to prolong the session or whether if we adopt the other course we would or would not be left without a full body; and we desire that all should participate in the deliberations of this body. So far as I am concerned, I care nothing about the thing in any form or manner. If we could ascertain and come to a conclusion what would be the effect of one or the other, I should know better how to vote.
MR. DERING. I, for one, sir, will agree to stay in this Convention without being hurried by any motions whatever; and, so far as I am concerned, will go for perfecting the work of this Constitution without any motions either outside or inside of this Convention. We were sent here to make a constitution, and I hold it is our duty to do it, whether we get any pay or not. I am for the original resolution. Let us have but three dollars a day. Let us all act consistently. We have been for reducing the wages of our state officers, and likely there are members in this Convention who will go on for this reduction. I trust we will act consistently and vote for the resolution of $3 per diem. If we have not got the money appropriated, I vote for staying here two months more without a single cent paid.
MR. PARKER. I am unable to see how it is that the Convention has anything to do with this question. I have been listening to the remarks of gentlemen. It is clear that the whole people of Virginia, in their convention last summer, representing the whole people of Virginia, ordained on the 20th of August that a Convention should be called and that delegates should be chosen. This was the whole people of Virginia, those only who had a right to ordain and prescribe these things. And they went further and ordained that a certain per diem should be paid to delegates. That is the act of the whole people of Virginia assembled in sovereign capacity in convention; which overrides and overrules this Convention - overrules the legislature and all other state powers. They have ordained it and put it into the 7th section, I think, of the ordinance for dividing the state. Well, now, how do we stand? The delegates in pursuance and by virtue of that ordinance, were elected and sent here with power to act within the provisions of that ordinance. Our constituents said nothing, and had no right to say anything about our compensation. That belonged to the sovereign people of the whole of Virginia and they had spoken in their ordinance and prescribed it. Well, now, this is the stand. I have come here under the contract that that ordinance prescribed, $4 per day. Whether the State of Virginia is ever going to pay me or not is entirely another question. I am here on that contract in the performance of my duty, carrying out the work I was sent here to do. For each day I so spend, the State of Virginia owes me, and every other gentleman present, $4. Can this Convention qualify it? Can a majority get together here and take away from the minority? It is perfectly self-evident they cannot. Our contract is with the State of Virginia, over which this Convention has no control whatever. The legislature, which is subject to the Convention, made an appropriation of a sum sufficient for 65 days session. If we complete the work in 65 days, we are paid in full. If we do not, what then? The State of Virginia will keep its contract with us. I have no fear of it. I could work a year on her credit. Let us go on as true men, in earnest to do this great work which our constituents are now pushing at our backs. Let us not stop to play truant by the way. That is what our constituents want, not a little tinkering about whether we will knock off nine-pence or ten cents - a matter we have nothing whatever to do with. I am ready to go on. I will go on, and let them pay me what they are a mind to. When the 65 days are out, I will go on faithfully and do what is in my humble power to complete the work; and if the State of Virginia doesn't want to pay me I will give them a receipt in full. That is the way I feel. I am against the whole of it.
MR. RAYMOND. My object in offering the resolution which I offered was that I doubted very much whether this Convention had the power to change this contract. Men are here by contract for $4 a day, and I offered that amendment to try gentlemen. Now, if they are in earnest let them stick up to the bargain. I am here to walk the chalk.
MR. SIMMONS. I am willing, for my part, to stay here as long as any other gentleman after the 65 days is out and work on my own credit. When I consented to come here, I told my constituents that it was not with any desire to make money; nor did I expect to make any, but merely to comply with their wishes I consented to come. But there is one thing that strikes my mind, and that is this: I do not see how we are ever to complete this work unless we apply ourselves to it. There has been a great deal of time lost unnecessarily, and we are now consuming time unnecessarily; and I am sorry to say within the last few days I have seen a principle working in this Convention that does not suit my mind at all; and I am sorry to think that there is an aristocratic principle at work in the last few days. There is a number of gentlemen who have been advocating high salaries, and now they have attained that object, and it seems to strike my mind that some of these gentlemen have obtained an object which seems to suit their minds precisely, and some of them perhaps expect to retain some of those offices; but it seems to me they have got the balance of power in their hands and they wish to hold it. I wish to ask the members of this Convention, while they have the balance of power in their hands to hold it and never let the iron shoe be put on them. If they will remind themselves a moment of the principle that worked in old Virginia, and has been working there for many years, and apply it to western Virginia, they will plainly see what it has brought them to: that they have paid their taxes for many years, and where have they ever received a dollar's worth of it? Never, and never would unless we cut ourselves loose from them. As that has been my object in coming here, to try to cut loose from old Virginia, in order to obtain our rights, I am sorry to think that a principle that worked there is beginning now to work here. I ask the members of this Convention that have the balance of power in their hands to keep it and never suffer those influences to come upon them.
MR. WALKER. I have listened to the arguments and I have thought there has been a good deal of time consumed unnecessarily in regard to the question now before us. I think it wholly unnecessary. There seems to be a disposition now that because the salaries sought for circuit judges was not carried, they will now seek to reduce the pay of the members of this Convention, which I do not think is right at all. I do not think it is proper for the Convention to vote down the salaries and that it should remain as it is. A certain specific sum was allowed to every man who was elected a member of this Convention and it does not seem proper to change it without his consent. I do not think it is right to decrease the pay of members who come here at $4 a day.
MR. BRUMFIELD. I don't deny but what I want my pay (Laughter). I was at the convention in June on my own expense. I was here in August and had to travel about 600 miles to get here, and paid my own way. I want my $4 a day for 65 days; and if we sit longer, I want the legislature to make an appropriation to pay the balance.
MR. HAGAR. Circumstances always are said to alter cases. I am satisfied the Convention has no power to change this if they were a mind so to do. Also that if we cannot get through in 65 days, the legislature will appropriate enough to pay us on. But I am opposed to these long speeches. There has been hour after hour, almost unnecessary, spent here, and then men will talk about time wasted. Perhaps the convention that called us here understood we were worth the same the legislature received, and the probability is the legislature will not give us a cent of mileage. I don't care whether they do or not. I reckon we will keep the $4 a day until the Convention is done if Virginia is worth it and willing to pay; and if not we will do without it.
The vote was then taken on the resolution, as follows:
"Resolved, That on and after the 65 days are out, we the Convention will agree to stay until the business of the Convention is through, for nothing."
YEAS - Messrs. John Hall (President), Brown of Preston, Brown of Kanawha, Brooks, Chapman, Cook, Dering, Hall of Marion, Haymond, Harrison, Hagar, Lamb, McCutchen, Paxton, Stevenson of Wood, Stephenson of Clay, Walker, Wilson - 18.
NAYS - Messrs. Brumfield, Battelle, Carskadon, Dolly, Hansley, Hubbs, Hoback, Irvine, Lauck, Parsons, Powell, Parker, Robinson, Sinsel, Simmons, Stewart of Wirt, Stuart of Doddridge, Sheets, Soper, Taylor, Van Winkle, Warder - -22.
So Mr. Haymond's motion to amend was lost.
MR. STUART of Doddridge, in casting his vote said: I would like to explain my vote. I do not want to be placed in a false position. I am willing to remain here after the 65 days, but I do not want to compel any man to do the same against his will; and for that reason I shall vote no.
MR. BATTELLE, when his name was called: I will do the same; that is just my case.
MR. SINSEL, when his name was called: I will do the same.
MR. POWELL, when his name was called: the same reason that caused others to vote no will cause me to vote no.
MR. STUART of Doddridge. I suppose the question now comes up on the amendment to the resolution offered by myself. I am perfectly willing to fix up the resolution so as to commit myself at least to the mover of the resolution. I am sorry this thing has been mooted here. It has taken up considerable time and I see no good likely to result from it. Like several gentlemen who have spoken on the question, I do not believe it is in the power of this Convention to change the compensation of the members who came in under the ordinance of the convention; but still I am perfectly willing as one of the members living within 150 miles of this place to say that I am willing to bestow one dollar a day in order that the session of the Convention may be extended. Now, sir, it comes very unfairly - very unfairly. Come up to this thing, now, gentlemen, with clean hands. Here are some members of this Convention who have traveled three hundred miles and they will pay for it out of their per diem - a good portion of it in supporting them while here, while other members who have not been expending one dollar yet are seeking to curtail these men. They will not release a dollar a day while other members will receive a greater amount. It is right and fair to pay mileage because that equalizes the rewards for the labor performed. If one has to travel 300 miles and pay $60 for it, he ought to have some compensation for it. Four dollars a day for many members is a pretty good compensation, while it does not pay other members of this body. I feel like doing justice; and if you want to come up and toe the mark let us wash our hands and do what is right and pay these gentlemen what they ought to have and curtail our own wages. If the gentleman was here, I would propose $2, but he is not here.
MR. SOPER. I want gentlemen to understand it. We are now, gentlemen, all entitled to $4 a day, and you gain nothing by voting for this resolution. It is an unnecessary resolution entirely. No man can get any benefit from it. Because it is voting only what is given to you.
MR. STUART of Doddridge. If you don't vote for this amendment, very likely you will force the resolution upon you and you had better have the amendment than the resolution.
MR. SOPER. Very well; let the resolution come; and I will stay here for the 66 days and if the State of Virginia doesn't pay me I will say nothing about it.
MR. POWELL. I do not consider that this body has the power to take it out of the hands of those who wish to hold it, and I cannot look at it in that way. I am willing to remain here until the Constitution is made, and if I get anything for it I will be very thankful for it; but if I get nothing for it I shall consider that the State of Virginia owes me that sum whatever it may be. Of course it is optional with an individual whether he relinquishes his claim or not. Even if the majority say it shall be $3, I don't believe they have the power to vote it out of another man's hands. I agree it is optional with each individual whether he relinquishes or not.
MR. LAUCK. When I vote I wish to vote advisedly. I desire the clerk will read what the amendment is.
The Secretary read:
"Resolved: That from and after this day the per diem of the members of this Convention shall be three dollars."
Mr. Stuart of Doddridge moved to amend so as to include only those living within 150 miles of Wheeling.
MR. HAGAR. It would be found to my advantage and the advantage of some others to vote for the amendment. I expect to vote against it. It is unfair. I have ever since I have been here to go on the principle of justice. I shall vote against the amendment and then against the resolution, for I think this Convention has nothing to do with it.
MR. SIMMONS. This does not give you any mileage.
MR. HAYMOND. I discover that the mover of this resolution is not in the house. For some cause or other he has disappeared.
A MEMBER. Let us settle it.
MR. STEPHENSON of Clay. I cannot see any necessity for discussing this question, as it must be a settled fact that this sixteen thousand dollars we must have. What is the difference whether we have it now, or in 65 days, for we are determined to have it (Laughter). It does not matter how long we stay here, if we stay eighty days. I cannot see any good that can arise from the discussion of this subject.
MR. HAGAR. What is the question? I don't understand it.
THE PRESIDENT. The very thing you said you would not vote for.
The Secretary reported the amendment.
MR. STUART of Doddridge. If the amendment is voted, the members living within 150 miles of Wheeling will draw only their three dollars a day, and those living beyond this will draw their four dollars a day. I will vote for the amendment and then vote against the resolution as amended if it carries.
The vote was taken on the amendment and it was lost by 18 ayes to 19 noes.
The question recurring on Mr. Caldwell's resolution, Mr. Simmons called for the record of the vote. The vote was taken and resulted:
YEAS - Messrs. Brown of Preston, Brown of Kanawha, Brooks, Dering, Hall of Marion, Harrison, Hubbs, Lamb, Paxton, Stewart of Wirt, Van Winkle - 11.
NAYS - Messrs. John Hall (President), Brumfield, Battelle, Chapman, Carskadon, Cook, Dolly, Hansley, Haymond, Hagar, Hoback, Irvine, Lauck, Montague, McCutchen, Parsons, Powell, Parker, Robinson, Sinsel, Simmons, Stevenson of Wood, Stephenson of Clay, Stuart of Doddridge, Sheets, Soper, Taylor, Walker, Warder, Wilson - 30.
So the resolution was rejected.
MR. IRVINE. I make the motion that hereafter instead of meeting at half-past three o'clock, P. M., we meet at two o'clock.
MR. VAN WINKLE. I have two or three times on similar motions opposed them for one reason that I had no doubt there is a gentleman here who is a member of the senate, and a very useful member there, whose time is fully occupied. He has but this hour and a half to attend the senate or must lose his place here. The legislature will perhaps adjourn in eight or ten days. I hoped this might be kept up until that time. I allude to the gentleman from Doddridge. He is chairman of two or three committees there and he is doing a great deal of work there and he has such positions here that his presence might be more desirable than members occupying the same position. I submit to members whether we cannot afford to hold on to the half-past three a few days until that gentleman is relieved from attendance on the senate. I do not think we gain much by the change.
MR. LAUCK. I move to lay the resolution on the table.
MR. IRVINE. I ask for the yeas and nays.
The vote on the motion to table was taken and the Convention refused by 16 to 24.
MR. STUART of Doddridge. I desire to offer an amendment. I am ready and willing and desirous to work. There is no man in the State more disposed to do it than I am. I move to amend the resolution by saying that we shall take a recess here at half past twelve and meet at half past three and to take a recess at six and meet again at seven, and I don't care if you extend the session to midnight. My labors at present are divided. All I ask is an hour and a half, if you will impose the labor on me when I can get the time. It seems to me the evening will be just as pleasant as the hour and a half after dinner. I am willing to meet at seven. My position in the senate is a very peculiar one. I know my motives would be appreciated. It may not be understood. I cannot perhaps give much light on it, but if my position was understood it would be I know satisfactorily appreciated by this body. I am astonished at my friend from Kanawha. He has had a great deal of courtesy extended towards him and I find I not only voted to extend that courtesy, but to pass by everything he was interested in in his absence in all cases. I have a deep interest in the proceedings of this body, and if we adopt the time of meeting proposed, I shall have to leave the senate entirely. My people are more concerned than I, and I cannot see any necessity at all for the change. I ask this as a favor for a few days at the hands of this body.
MR. BROWN of Kanawha. The gentleman from Doddridge has alluded to myself. I appreciate the position of the gentleman and feel very sensibly the importance of his presence in the senate. I do not know how he arrived at the supposition that I have not been as courteous to him as he has to me.
MR. STUART of Doddridge. I might have been mistaken. The gentleman voted against laying the resolution on the table.
MR. BROWN of Kanawha. Not at all. I want this question settled. I will vote for the three and half-past sessions.
MR. IRVINE. I am fully aware of the fact that the gentleman from Doddridge is a useful member of this house and likewise a very useful member in the senate; but we are very much pressed for time, and he is the only gentleman I believe that is incommoded at all by this new arrangement. I think while under the circumstances I was justified in making the motion, I shall not make any remarks in support of it. I just wish to test the sense of the house on the proposition.
MR. VAN WINKLE. I hope the gentleman from Doddridge, whom I have been trying to relieve is not going to put the burden on me by compelling us to hold night sessions. My Committee on Fundamental Provisions is still acting; the committee on boundary has got some matter to report; we are not through the report of the legislative committee, and we have recently recommitted a part of it. We may recommit a part of the judiciary report. That already I know. The time will soon come for the Committee on the Schedule to go to work. But if the house is to sit all day, when is this business to be done? I have never known any good in the world to come of night sessions. We are here three hours and a half in the morning and two and a half in the afternoon. That is as many hours a day in my opinion as we can devote to the transaction of business to any profit. My belief is that six hours a day is as long as we ought to be required to sit in the present stage of the business. When the committee get through, we may sit then for a few days morning, noon and night; and that may be more the way when the reports of the committee on revision begin to come in. Everything has got to be run over. Now, all these reports are to come up on their second reading. There is no one yet that is finally passed; but I am satisfied that at this stage of the game we are sitting hours enough. When the gentleman from Doddridge is relieved, which will be in a few days, if the Convention are willing to extend to him the courtesy, we can then meet at half-past two, which will then make seven hours. I do not think long hours in open session is necessarily the best way to promote the transaction of business. We need to do less talking and more thinking. We need to work in committee to prepare the details of our work before we come into Convention to talk about it. Discussion in session is the least important part of our labors. Some of the members who are not heavily burdened with the committee work may feel that they are not earning their per diem and that if they are not continually in session nothing is being done. They are mistaken. Let our work be carefully matured before it is brought in, and then it can be dispatched all the more rapidly when the Convention takes it up in open sitting. I am satisfied business will progress more rapidly in this way than if you attempt to keep us sitting here all day long and night too.
The question was taken on the amendment of Mr. Stuart and it was rejected; and the question recurring on the adoption of Mr. Irvine's resolution, it also was rejected.
On motion of Mr. Parsons, the Convention adjourned.
Chapter Eleven: First Constitutional Convention of West Virginia
