The Convention was opened with prayer by Rev. Samuel Barnes, of the Methodist Episcopal Church.
After reading and correction of the journal,
MR. LAMB. Mr. President, I desire to offer resolutions referring certain subjects to the Committee on Revision and Engrossment with a view that matters necessarily coming before this Convention be prepared so as to expedite our proceedings and enable us to adjourn as soon as possible. I presume there will be no objections to the resolutions. I will read them for information:
"RESOLVED, That the Committee on Revision and Engrossment be instructed to report on ordinance regulating the first election under the amended Constitution for members of the legislature, and state and county officers, and fixing the time when such election shall be held, and when the legislature shall assemble.
"RESOLVED, That the Acts of the General Assembly of Virginia, passed at their recent session in this city, relating to the proposed State of West Virginia be referred to the said committee, with instructions to report what action, if any, of this Convention may be necessary in respect to the same.
"RESOLVED, That the said committee report and address on behalf of the Convention to the people of West Virginia, explaining the principal measures adopted by us, and the reasons for the same, and examining the objections made to the erection of the new State."
The resolutions were adopted.
MR. LAMB. There is a vacancy in that committee. Gordon Battelle was one of the members. I move - or would suggest, rather, to the chairman, I believe the Chair makes the appointment - that my colleague, Mr. Ross be put upon the committee in place of Mr. Battelle.
MR. VAN WINKLE. Mr. Battelle was chairman of the Committee on Revision and also one of the standing committees. I would add the suggestion that Mr. Brown of Kanawha, be restored to his place on his old committee.
MR. HALL. I believe Mr. Willey was chairman proper until by reason of his absence Mr. Brown was substituted.
Mr. Stevenson of Wood said the Committee on Education had had no meeting since the assembling of the Convention and had no chairman unless some name now on the committee would take precedence. Of course there is a vacancy until the committee elect a chairman or until the Convention appoint one.
MR. LAMB. Perhaps it would be better to put my motion to the Convention simply with reference to the Committee on Revision. Mr. Willey said it was very uncertain how long he would remain and if this were not so, the Convention would do well anyhow to appoint Mr. Brown of Kanawha.
The Chair announced the appointment of Mr. Brown of Kanawha as a member of the Committee on Revision.
Mr. Dille presented the resignation of the Sergeant-at-Arms, James C. Orr, which was accepted.
MR. McCUTCHEN. I hold in my hand, sir, a petition of some fifty signers, constituting a man from Greenbrier as delegate from that county and submit it to the Convention.
The petition was read as follows:
"We, the undersigned, citizens of Greenbrier county, do respectfully request and petition the Wheeling Convention that is to assemble, to receive Andrew W. Mann to represent the county of Greenbrier."
MR. MCCUTCHEN. I would just remark that I know a good many of these men and I know them to be good loyal men of the county.
MR. STEVENSON of Wood. I move it be referred to the Committee on Credentials.
Mr. Van Winkle suggested to his colleague to so modify the motion as to allow the matter to be taken up now and the member admitted.
Mr. Stevenson said if the Convention were satisfied with the paper he was willing.
The petition was taken up and Mr. Mann admitted to a seat, and being present he came forward and assumed the oath of office.
MR. STEVENSON of Wood. I have a resolution which I desire to offer, and have referred to the Committee on Revision. I will read it:
RESOLVED, That each person before voting for or against the amended Constitution shall be required to take the following oath:
"I solemnly swear (or affirm), that I will support the Constitution of the United States, and the laws made in pursuance thereof as the supreme law of the land, anything in the Constitution and the laws of Virginia, or in the ordinances of the convention which assembled at Richmond on the 13th day of February, 1861, to the contrary notwithstanding; and that I will uphold and defend the Government of Virginia as vindicated and restored by the Convention which assembled at Wheeling on the 11th day of June, 1861, So help me God: Provided, that persons who have before taken said oath shall not be required to do so again."
The resolution was received and so referred.
Mr. Brown of Preston moved to proceed to the election of Sergeant-at-Arms.
The motion was agreed to.
Mr. Parsons nominated Henry Startzman, of Preston county. Mr. Hall nominated William M. Dunnington, of Marion county.
On a roll-call the vote resulted:
For Mr. Startzman. Messrs. Soper (President), Brown of Kanawha, Boggs, Chapman, Caldwell, Carskadon, Cook, Dering, Dille, Dolly, Gibson, Harrison, Hubbs, Hervey, Hagar, Hoback, Irvine, Lamb, Lauck, Montague, Mahon, McCutchen, Mann, O'Brien, Parsons, Powell, Parker, Paxton, Pomeroy, Pinnell, Ruffner, Ryan, Ross, Sinsel, Simmons, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Sheets, Smith, Taylor, Tichenell, Trainer, Van Winkle, Willey, Walker, Wilson and Wheat - 49.
For Mr. Dunnington. - Messrs. Griffith, Hall, and Warder - 3.
Mr. Startzman, being present, assumed the obligation of the office and its functions.
MR. VAN WINKLE. The Special Committee have directed me to make the following report:
The Special Committee to whom was referred a resolution making the change in the Constitution proposed by Congress, with instructions to "inquire and report whether any provision looking or having reference to the compensation of the owners of the slaves freed by the proposed amendment of the Constitution, should, or can with propriety, be inserted in that instrument or adopted by the Convention," having had the subject under consideration respectfully report as follows:
The committee are not aware, nor can they learn after such inquiry as they have been able to make, that any state which has passed laws for the gradual emancipation of its slaves, has emancipated those in being at the time of the passage of such laws. It is conceded on all hands that no prospective or other right of property attaches to the children of slave mothers until actually born, who cannot, therefore, be the subjects of compensation. The committee are therefore without a precedent occuring in this country to serve as a guide in forming their opinions, as to whether the owners of slaves in being at the time the Constitution goes into operation, and then under the age of twenty-one years, should be compensated for the loss of their services.
Within a few years England, France, Denmark and Holland have provided for the emancipation of the slaves in their colonies, but not without adequate compensation to the owners. The Emperor of Russia has actually decreed the liberation of the serfs of that empire, but has also provided for the compensation of the owners of the lands to which they were attached, to whom their services were due. It would seem that a republic always careful of the acquired, as well as the natural rights of its citizens, should not be less just than the monarchies referred to.
The committee find in the fifth amendment of the Constitution of the United States the following clauses:
"No person * * * shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."
Similar provisions are found in the constitutions of all, or nearly all of the states of this Union, and have not been omitted from that prepared by this Convention. They occur in the latter in the sixth section of the second article, entitled "Bill of Rights," in the following form:
"Private property shall not be taken for public use without just compensation. No person in time of peace shall be deprived of life, liberty, or property, without due process of law."
To what extent these provisions are applicable to the case before them, the committee now proceed to inquire. The first question that presents itself is, whether slaves, or the right to their services, constitute such property as is contemplated by the clauses quoted? Among the subjects of property it may be briefly stated, are all such things as have a money value, or which may be bargained and sold, or for the injury or deprivation of which damages in money may be recovered. Slaves in the United States have all these characteristics, and are, in fact, recognized as property by the laws of all the states where slavery exists, and of the United States. This is true of the laws of Virginia, which will become the laws of the State of West Virginia at the very moment the emancipation section of the Constitution becomes operative. Whether the property in them consist of their thews and sinews, or in the right to their labor or service, is not material. If freed, the owner is deprived of his property in them, whatever may be its nature.
The next inquiry arising under the first clause above cited is, whether when slaves are freed by act of law, they are taken for public use? They are certainly taken from the owners for a public purpose, which word is equivalent to "use" in the connection in which the latter is found. The use or purpose for which they are taken, in the case under consideration, is the expected benefit of the people of the State by the substitution of free for slave labor. It will not, however, be pretended that the State can deprive the owner of them or their services for any other than a public purpose.
The second clause has relation to fines, forfeitures or confiscations for criminal offences. Even in these extreme cases property cannot be taken in time of peace, unless the commission of the offence to which the penalty is annexed, is clearly established by legal proceedings. The clause is cited to show with what carefulness the law protects private rights and particularly the right of property. It is manifestly against the spirit of both clauses, that any citizen should be deprived of his property by the state, without compensation. Chief Justice Marshall placed this restriction of legislative power on grounds higher than law or constitution.
He said - "It may well be doubted whether the nature of society and government does not prescribe some limit of the legislative power; and if any be prescribed, where are they to be found, if the property of an individual fairly and honestly acquired, may be seized without compensation?"
The committee are of opinion, that by the express terms of the Constitution, the owners of slaves in being at the time it goes into operation, and emancipated by the proposed amendment, will be entitled to compensation at the time such emancipation takes effect. It may therefore seem that the instrument which emancipated, should also direct that compensation be made. This, the committee are of opinion it does, in the clause forbidding private property to be taken for public use without just compensation. Certainly if the emancipation takes effect, such owners would have a valid claim against the State, which any competent judicial tribunal would enforce. The clause referred to will be as obligatory on the legislature, as would a clause specifically directing compensation to be made, inserted in the Constitution. That body cannot deny the binding force of the instrument to which they owe their own existence, nor give it a construction which will make its parts inconsistent with each other.
As to the mode, time and other details, those matters are more proper for the consideration of the legislature than the Convention.
It has not been necessary for the committee to inquire as to the propriety of inserting additional provisions in the Constitution. While they do not believe that mere emendations not making substantial alterations, would be objected to in any quarter, they nevertheless recommend that no changes whatever, except that indicated by the first of the resolutions referred to them, be attempted; as, however, proper in themselves, they might delay the accomplishment of the great object in view.
The committee unanimously recommend the passage, by the Convention, of the said first resolution, which they herewith report back without alteration, and also of the resolution subjoined.
P. G. VAN WINKLE, W. T. WILLEY, JAMES H. BROWN, DANIEL LAMB, G. PARKER, Committee.
"RESOLVED, That in the opinion of this Convention, the owners of slaves in being at the time the Constitution goes into operation, and emancipated under its provisions, will be constitutionally and legally entitled to recover from the State the actual value of such slaves at the time of emancipation, if they have not forfeited that right by disloyal acts."
The resolution referred to the committee and reported back with the foregoing report with unanimous recommendation that it be adopted is as follows:
"RESOLVED, That the seventh section of the eleventh article of the Constitution be stricken out and the following inserted in its place:
"7. The children of slaves born within the limits of this State after the fourth day of July in the year one thousand eight hundred and sixty-three, shall be free; and all slaves within the limits of said State who shall, at the time aforesaid, be under the age of ten years, shall be free when they arrive at the age of twenty-one years; and all slaves over ten and under twenty-one years shall be free when they arrive at the age of twenty-five years; and no slave shall be permitted to come into the State for permanent residence therein."
MR. STEVENSON of Wood. I should like in voting on these resolutions to have them divided so we can take a vote on each one separate.
MR. VAN WINKLE. I would make the formal motion that the resolution reported and reported back by the committee be adopted.
MR. POMEROY. The object of the gentleman from Wood is simply to have the resolutions divided. I move to take the vote on the first resolution.
MR. STEVENSON of Wood. That was the motion I had made but gave way to my colleague. I do not see any necessity for having the first resolution printed. I think the whole Convention are ready to vote on that. The other I would like to have printed. My motion is to divide so as by a single vote we can strike out our own section and insert the amendment of Congress.
MR. VAN WINKLE. I would suggest whether the second resolution may not be considered dependent on the first. The discussion might come on both and whenever we come to voting, any gentleman has the right to have the question divided.
MR. STEVENSON of Wood. I presume there will be no difference of opinion. I do not understand that there is, on the first resolution, the business for which the Convention has been assembled. There will be some difference of opinion I presume on the second, and that ought to be printed and a fair expression of sentiment on the part of the members given. But I would insist, unless there is some valid objection, some difference of opinion among members that requires it to be printed, that we postpone that and that the vote be taken on the main resolution now. The Convention is ready to decide on that question.
THE PRESIDENT. On the adoption of the first resolution, is that, sir?
MR. HERVEY. I understand the motion to be to strike out and insert?
MR. STEVENSON. Yes, sir.
THE PRESIDENT. Striking out the 7th section and inserting the Congressional amendment. I would like to inquire the effect of the adoption of the report of the committee; whether it is appending an additional section to the Constitution? (A member: "No, sir.") It strikes me if we adopt it in this form it would be adding another section.
MR. POMEROY. I will endeavor to state the motion pending before the house. It is simply to strike out the 7th section.
MR. STUART of Doddridge. I understand decidedly what that is, if he will just indulge me. I simply wanted to know what would be the effect if we adopted the report of the committee. Members might be disposed to vote against his proposition perhaps to divide the question unless they knew what effect would be of adopting the report of the committee. I want to understand from the authors of the report whether if we adopt the report it will not be appending an additional section in the Constitution besides the section proposed by Congress.
MR. VAN WINKLE. I did not move the adoption of the report. You have part of it in the resolution subjoined and the recommendation of the committee. I moved the adoption of the resolution - that is, the one making the change in the Constitution and the one reported by the committee; not the adoption of the report itself.
MR. STUART of Doddridge. Then does not the adoption of your motion add an additional section to the Constitution?
MR. VAN WINKLE. No; no additional section; it only makes the change required by Congress; it takes out the section now there and puts another in the place of it. The resolution subjoined by the committee to their report is simply declaratory of the opinion of the Convention as to the obligation of the State to make compensation. Simply an expression of opinion on the part of the Convention; and I understand that would be accepted by those who are anxious on this subject as a settlement of the question.
MR. STUART of Doddridge. I would like to have it printed.
MR. WILLEY. Mr. President, I think my friend from Doddridge may rest assured the adoption of both resolutions would not do anything to the Constitution except to incorporate the amendment passed by Congress. The adoption of the first resolution would strike out the 7th section and insert the amendment proposed in the act of Congress. That is all that would be added to the Constitution. That amendment would become the 7th section in lieu of the one we take out. That is the only extent to which the Constitution would be affected by the adoption of both resolutions. If we adopt both of them, the first one would make the condition in the act of Congress a part of our Constitution. If we adopt the second, it would simply be an expression of the opinion of this Convention and no more. It would have no constitutional effect; no legal obligation upon any man on the face of the earth. It would be simply an expression of what this Convention believes to be the legal construction and effect of emancipation; nothing more; binding on nobody; a mere expression of opinion. And it is understood that those who desire that there should be an additional section to the Constitution making it mandatory upon the legislature that may be elected in the new State to provide compensation to the owners of slaves emancipated would be satisfied if there was a simple expression of the opinion of the Convention that the obligation did exist in the instrument itself and therefore waived any effort or desire to append one jot or tittle, one iota, to the Constitution beyond what Congress requires. Well, sir, believing that to be the effect of the Constitution as it is, I feel very much disposed to satisfy gentlemen who have some anxiety on this subject by giving my opinion upon that. It will not embarrass us in any degree at all. Our opinion does not go to Congress; not involving the necessity of sending the Constitution back to Congress at all. We will have satisfied completely the requisition of the act of Congress; and as I understand, we will have satisfied our friends who have some doubts whether the Constitution as it stands does contain within it an obligation that the owners of emancipated slaves should be compensated. I think my friend from Doddridge need have no apprehension that the adoption of both these resolutions would add anything to the Constitution. Certainly not, sir.
MR. POMEROY. If I understand the position of the matter before the Convention, the report made by the special committee which reports two distinct and separate resolutions. The gentleman from Wood (Stevenson) moved that we take the vote first upon the first resolution; which is simply the amendment proposed by Congress. Now, in regard to that resolution, if I am correctly informed there is no division of opinion in this Convention. We are about united; and therefore I want the vote to go forth to the people of this proposed new State and to the world that we were united, that there was no division of sentiment on that question whatever; that the new State is of such paramount importance to us that we are willing to accept of an amendment proposed by the Congress of the United States.
Now in regard to this other resolution, there may be discussion; but I ask as a matter of information is it a proper time to discuss the propriety of the resolution when there is a division? You take the vote on the first. Then, if we take the vote on the first the other can be printed and it will come into the hands of the members of the Convention. Then the whole discussion, if there is to be a discussion, on the point, can come up. Now, I am well apprised of the fact that there is a difference of opinion on the second resolution; there appears to be none on the first, and I hope sincerely there is none.
MR. WILLEY. Allow me to say to my friend from Hancock that I think he will find himself right as to there being no division on the first resolution, once the second is also adopted. If the second is adopted, I can assure him, so far as I am concerned, I think there will be no division as to the first; but unless it is there may be division as to the first resolution.
This division of the question is a matter that any member of the Convention has a right to require; any member; does not require a motion or vote of the Convention. The motion that is made by the chairman of the committee and instructed by the committee is the adoption of the two resolutions. The gentleman may separate my motion on discussion or any other way. That is the motion. They can vote it down if they choose; but when it comes to the voting any member has a right to require a division of the question if the question is divisible; and most certainly I do not anticipate when we come to vote we cannot vote the two resolutions together. I take it for granted they will be voted on separately. But I think the discussion had better be on both.
MR. STEVENSON of Wood. I would like to understand one thing: If the motion of the gentleman from Wood is to adopt both resolutions? Now, it seems to me if we take a vote here without having a division of his motion the effect will be either to adopt or reject both the propositions. What I want to get at is, in taking the vote on the two resolutions, we shall vote on each separately. I don't care how you get it, so the vote is taken in that way. I certainly understand his motion to be to adopt both resolutions. Now, sir, how can I vote on both at once and express my opinion?
MR. VAN WINKLE. The time to ask a division is when the vote is coming on; and then any gentleman on the floor has a right to a division. There can be no question about it. The motion as at present is as instructed by the committee, to adopt both resolutions. That brings up that motion for consideration.
THE PRESIDENT. I would suggest the report be printed.
MR. STEVENSON of Wood. I can see no necessity for printing the first resolution.
MR. PINNELL. I am in hopes it will not be the pleasure of the Convention to delay the action of the Convention on these resolutions by requiring them to be printed. It seems to me the propositions are so plain each gentleman has the matter fairly and fully before his mind. If I understand the motion of the chairman of the committee from the county of Wood, it is that any member has the right to have the votes taken separately on the two resolutions; to require us to take it in broken doses; and in the present instance I am in favor of taking this in broken doses.
MR. VAN WINKLE. The motion before the house is the adoption of this resolution and until that is disposed of -
THE PRESIDENT. A division is called for.
MR. VAN WINKLE. A division does not apply to the motion at all. It applies to the vote only.
MR. PINNELL. If the gentleman insists on the motion to take the vote upon both propositions and the question cannot be divided I have another motion that I wish to submit, and that is to have it referred back to a committee of fifteen of this body selected from different portions of the proposed new State. I have a plain duty here to perform. I am here as the representative of my constituents, and that duty I understand and will perform without dotting an "i" or crossing a "t".
MR. STUART of Doddridge. There need be no discussion.
MR. HERVEY. With a view of testing this question, sir? Very true, as the gentleman from Wood remarks, that there is a motion before the house. That motion is amendable. I move therefore to amend the motion of the gentleman from Wood by taking a vote on the first proposition.
MR. VAN WINKLE. The gentleman is out of order. It has no reference to the subject of the motion.
MR. HERVEY. That is a question for the Chair and the house. I make the motion therefore to amend the motion of the gentleman from Wood by taking a vote on the first proposition. As I understand the gentleman from Wood objects that the motion is out of order. I therefore during the pendency of this motion and objection, if the Chair decides me out of order, then I will sit down.
MR. POMEROY. I yielded the floor to my friends from Monongalia and Wood but I really believe I had the floor afterwards. I hope the gentleman from Brooke is through. If he is not I will wait on him.
MR. HERVEY. I have made a motion to amend, to which the gentleman from Wood objects. I desire to know whether that motion is in order.
THE PRESIDENT. The Chair understands the gentleman from Wood to move the adoption of the two resolutions, upon which a division is called and the vote will be taken on the first resolution first.
MR. STEVENSON of Wood. That is the way I understand it. No amendment is necessary.
MR. HERVEY. That is all I desire.
That is what I have conceded from the first.
MR. POMEROY. I understand that a division can be called for, and if the body does not see proper to discuss the first resolution and the vote can be taken on that resolution it does not cut off discussion when it comes up. I think the decision of the Chair is right on that point. We are all prepared to vote for the first resolution.
MR. STUART of Doddridge. I think the gentleman is entirely mistaken in saying there need be no discussion on the question. Whenever the vote comes to be taken, any gentleman has a right to call for a division of the question. The discussion will come up on the whole. Whenever a vote is taken any member has a right to call for a division of the question and then you vote on the different divisions of the question; but there can be no further discussion after you have entered into a vote.
THE PRESIDENT. The Chair thinks to take a vote whether or not - we are not bound to go through and take a vote and close discussion. We can entertain a motion to send that report and resolution to be printed.
MR. POMEROY. If there is no difficulty on the mind of the Chair upon that subject then the amendment of the gentleman from Brooke would certainly be in order. Because if there is a report presented here with two or more resolutions, we can move an amendment to take up a section in the Constitution, and it is moved to adopt a section; some gentleman moves to adopt the first clause of the section, and we have voted on that.
MR. STUART of Doddridge. The way to reach that is to move to strike out the second section. The gentleman from Brooke is certainly mistaken in the motion he made, and his motion should be to strike out the second section in the motion of the gentleman from Wood.
MR. POMEROY. Why not move to adopt the first as well as to strike out the second. In regard to that we anticipated there would be no discussion and we would all harmonize and agree. Now, if the gentlemen wish to agree to bring on the discussion before we vote on the first, I am not going to be very strict on that.
MR. LAUCK. Would it be in order to move that the report of the committee be laid on the table and printed?
THE PRESIDENT. Yes, sir.
MR. LAUCK. I move, then, that the report be laid on the table and printed.
MR. SINSEL. The effect of that motion will be to delay us another whole day and I shall vote against it. I think we can act upon it without further delay.
MR. GRIFFITH. I move to amend that resolution laying the second resolution on the table.
THE PRESIDENT. I do not know if discussion should be allowed.
MR. BROWN of Kanawha. This question is one of serious importance. This committee was raised to represent the Convention, contained within perhaps all the elements of conflict supposed to exist in the body. That committee have investigated the subjects committed to them; but I believe I may conscientiously say no committee have ever been more impressed with the important seriousness of the subject or have more conscientiously and earnestly entered on a discharge of their duty with a more sincere desire to accomplish a result and meet the approbation of the Convention, preserve fundamental principles and enable every member of this Convention to go forth to the people and defend this Constitution before the world now and forever. And we in doing it have presented the case here first with a view to avoid all difficulty and complication hereafter with Congress; presenting it that by the adoption of the resolution amending the 7th section as proposed by Congress that no further reference to Congress can be had upon any excuse or pretense whatever, but at the same time meeting fully and harmonizing the views of other gentlemen who may apprehend, as the enemies of our Constitution and State are declaring, that they may give a misconstruction to this Constitution and thus prevent our adversaries from having an argument against us of an outrage and injustice only practised by a barbarous people.
MR. STUART of Doddridge. I rise to a question of order. I do assure the gentleman I do not desire to cut off discussion; but on a motion to lay on the table it is not proper to go into a discussion of this question at present and it is not proper to discuss the motion to lay on the table.
MR. BROWN. I believe the gentleman is right in the point of order.
MR. LAMB. Is it in order to move to lay upon the table a motion to lay upon the table?
THE PRESIDENT. No, sir. The motion of the gentleman from Wetzel is to lay the report and resolution on the table and print them.
MR. LAMB. There is another motion to lay that upon the table; to lay the second resolution on the table.
MR. STUART of Doddridge. The motion to lay on the table is not amendable at all and cannot be discussed.
MR. LAUCK. The motion was to lay on the table and order to be printed. I am not prepared to vote on it until I consider it further.
MR. CALDWELL. I merely rise to express the hope that my friend from Wetzel will withdraw his resolution. I think, with one exception made by the gentleman himself, I candidly entertain the opinion that every member of this Convention is ready now as much as he will be at any future day at least to discuss, vote upon and decide these several questions coming up on the two resolutions. If the gentleman is not prepared to enter into the discussion and determine what vote he shall give on either of these resolutions, I think before the discussion shall have ended he will be ready to decide how he shall vote. If he will listen to me a moment I will hope the reasons I have assigned, that he will consent to withdraw his proposition to lay on the table and print. I do not see any propriety in printing at any rate a great portion of this report. It is all before the members of the Convention, has been in the hands before the people of West Virginia. I hope for the reasons I have assigned he will withdraw his motion.
MR. LAUCK. I withdraw the motion.
MR. WHEAT. I move to lay on the table and print.
THE PRESIDENT. Will the gentleman wait a moment?
MR. GRIFFITH. I move the second resolution be laid on the table and printed.
MR. VAN WINKLE. To lay part on the table takes the whole of it.
THE PRESIDENT. It carries the whole.
MR. SMITH. I hope the two propositions will go together and let us examine them together. Gentlemen seem to be impressed with the idea that there will be no difficulty at all in getting an unanimous vote upon this Constitution - upon the first clause of it. They entertain that opinion and therefore we should vote upon that. There is no objection to voting for it, and therefore we ought to adopt that now and leave the other for future discussion. Now, I tell the gentlemen that there is not a man in this house that has taken more interest in his Constitution than I have; more anxious it should receive the sanction of this body than I have been. I have been from the beginning its sincere friend; I am now its friend; but before I vote upon that I want to ascertain what is the opinion of this house on the other. Conscientiously, I cannot vote for that alone. I stand here sworn to support the Constitution of the United States and without some declaration on the part of this house that the clause in the constitution -
MR. STUART of Doddridge. I have again to rise. I want to know what is the question?
MR. SMITH. I am now giving a reason why they should be printed.
MR. STUART of Doddridge. I understand the motion made carries the whole and of course, the motion is not debatable.
MR. SMITH. This is a motion to print one part of it.
MR. STUART of Doddridge. The Chair has decided that the motion takes all.
THE PRESIDENT. I so decided, sir.
MR. STUART of Doddridge. Well, sir, it is not debatable at present. If the motion prevails, both resolutions go on the table.
MR. SMITH. That being so, I do not so understand it.
MR. PINNELL. I would ask whether it would be in order to amend the motion?
MR. HALL. Cannot amend.
MR. PINNELL. I wish, if it is, to offer an amendment to recommit the report of the committee to a select committee of 15 members of this Convention.
MR. POMEROY. I would like if the Chair would decide this point, if it carries the whole of the resolutions.
THE PRESIDENT. I think it does.
MR. HERVEY. If it is necessary this house can take up and act upon any proposition it sees proper. Our mode of doing business has been about this: committees make their reports; house rules require us to take those reports up section by section. We can do it; have a perfect right to do it. We can take up this report, now, sir.
MR. VAN WINKLE. If there is such a rule, I ask for the reading of it. That only refers to constitutional provisions.
MR. HERVEY. Such was the practice of our last session.
MR. STUART of Doddridge. I again arise to a question of order. The gentleman cannot argue against the decision of the Chair except he takes an appeal from that decision.
MR. BROWN of Kanawha. What is the proposition before the house?
THE PRESIDENT. It is to recommit report and resolution to the same committee and increase the number to 15.
MR. BROWN. I would have no objection to it.
MR. POMEROY. I cannot conceive any advantage to be gained by recommitting. If it is a disposition of certain gentlemen that you must necessarily commence at the lower end of a report and discuss that part of it before a vote on the first part, we are just as well prepared for the discussion now as we will be next week. I thought that upon this one resolution we could vote unanimously. I thought on the other we would be divided in opinion. Therefore where we could act unanimously together I wanted to stand upon the record so and all vote for the first resolution. While we could not vote for the second, what advantage would come from recommiting, I cannot understand. I can imagine that where a report is brought in and then sent to an entirely new committee they may bring in a very different report. But if we are to discuss this whole matter before we take a division of the question, cannot divide until we come to the point of voting, no division to be made until we come to a vote, then we might as well enter into the discussion now as at any future time. I am prepared to vote for the amendment of Congress. It has been before me for weeks past. I knew something of that kind would have to come before this Convention if ever we got a new State. Therefore, I am prepared to accept the amendment proposed by Congress. This other is a matter sprung upon us suddenly. We have not time to investigate. We have heard a little said about it; but it is a question that requires calm deliberation; and as every gentleman knows that I might perhaps differ with him on this question that I am only one man on this floor who has always stood for free and open discussion. I am willing a man who differs with me shall have a fair opportunity of expressing his opinions as candidly and patriotically as he pleases, and I claim the same privileges myself. If gentlemen wish to discuss this matter, we are not perhaps prepared to discuss it but we will endeavor to do the best we can. I hope we will differ honestly and with the best of motives. I do not impugn the motives of any man that differs with me. I have never thought the wisdom was all embodied in me and that if I left the world the world would not go on. I know some people think that is the case when they die. I don't allude to any member of this Convention. But I do conceive this motion might be divided and a vote taken on the first part. But if it is the decision of the Chair to open up the discussion why not open it up today? What better opportunity than at the present time. I would like we could go harmoniously together and all see alike, all believe alike. I believe we can in regard to the amendment of Congress. I may be deceived in regard to that, but I do not think so; and I cannot therefore see the importance of recommitting this report. If there is anything to be gained by it, any further light gained of the amendment, if we would be better prepared to discuss it then, if the new committee can make a report that will better accord with the sentiments of the Convention, then I have no objections. But then if we are simply to bring in a similar report and one that will lead to as much discussion as this, why delay the action of this body until Monday?
MR. PINNELL. I would say to my friend from Hancock, the object I have in view is to divest the report of the committee from what seems to me to be objectionable; that is, to divide the proposition and let the Convention vote upon the first and second propositions contained in the report separately and in their order. If the motion to lay on the table and print had prevailed we would have had the very same thing before the Convention again after it was printed; but if we refer to a judicious committee they will see the difficulty that presents itself to this body and they can possibly bring in a report that will divest it of this objection and let the Convention proceed upon it. I am prepared now to vote on both these propositions without a particle of argument. My mind is clear, and I would to God we could all, as representatives of our constituents proceed to vote oftener and say less. I will withdraw my motion if we can bring the Convention to act right on these propositions. I know my friend from Kanawha; I have every respect for his judgment and experience; but it does look to me if the argument of the gentleman from Monongalia is correct there is nothing binding and valid in this second resolution in point of law; and if it is not worth anything, I cannot see why he insists with such tenacity upon its being acted on and why he cannot vote for the first proposition unless the second carries. There is a considerable bowl of meal, and it may be a rat. At least it creates suspicion in my mind. If the gentleman will withdraw and let us take the vote on the first and second propositions I am prepared to support the previous question on it.
MR. PAXTON. Would a motion to lay on the table be in order?
THE PRESIDENT. To lay the motion of the gentleman from Upshur?
MR. PAXTON. No, sir, to lay the report of the committee on the table?
THE PRESIDENT. I should suppose not, sir, until we dispose of that motion.
MR. POMEROY. I think the gentleman withdraws.
MR. PINNELL. I do not unless I can be satisfied we will take it in broken doses.
MR. PAXTON. I was going to make a motion to lay the report on the table; and if that prevailed, I proposed to move the adoption by the Convention so as to bring the matter directly before them of the substitute proposed by Congress for the 7th section of this Constitution.
MR. PINNELL. With that understanding, I withdraw.
MR. PAXTON. I then move the report be laid on the table.
MR. PINNELL. I have no objections at all.
The motion to lay on the table and print was agreed to.
MR. PAXTON. If it be in order I now move that the substitute proposed by Congress for the 7th section of this Constitution be adopted. I will just make this remark. This thing has now been before this Convention and before the people for six months at least. The bill passed the Senate in July last, or August. From that day to this it has been a subject of discussion; it has been before the people and the members of this Convention, and we are as well prepared to act now as at any future time, and there appears to be a disposition on the part of a large number of members that we should take prompt action on this. I make the motion, therefore, with that object, that the substitute proposed by Congress for the 7th section be adopted.
MR. LAMB. Mr. President, I simply rise to require the motion to be reduced to writing. The matter of form in this case may be of the highest importance. A motion in the form in which this is put is not in proper form to be adopted by this Convention. I want to see it reduced in writing as it is the all-important question which we are to decide, to understand exactly the shape in which it is to be presented to us, in order that I may see and judge for myself whether it is.
THE PRESIDENT. That is right, sir. It must be so. Have to reduce it to writing.
MR. STEVENSON of Wood. Let me suggest to the gentleman from Ohio to move to strike out the 7th section of the 11th article and insert in its place the amendment made by Congress.
MR. PAXTON. That is the motion I desire to make.
MR. VAN WINKLE. It cannot be taken up without taking up the whole of it.
MR. PAXTON. Then I move to take up the first resolution of the committee.
MR. STUART of Doddridge. The only way to get at that thing is to move a reconsideration of the vote laying the report on the table. I make that motion.
MR. POWELL. Would not a vote to take up the first take up the whole resolution?
THE PRESIDENT. Yes, sir.
MR. STEVENSON of Wood. Do I understand the gentleman from Doddridge to move to reconsider?
MR. STUART of Doddridge. Yes, sir.
MR. STEVENSON of Wood. If the Chair would decide this point first. My own impression is that the motion of the gentleman from Ohio was made to take up the resolution separately and distinct; that this report is entirely new matter.
THE PRESIDENT. I would suggest the discussion on this question appears to be inevitable. If the Convention are going into the discussion, it is proper to take up the report now on the table and have the discussion.
MR. PAXTON. The report, on my motion, was laid on the table and ordered to be printed. I now offer the following resolution:
RESOLVED, That the seventh section of article eleven be stricken out and the following inserted in its place:
"7. The children of slaves born within the limits of this State after the fourth day of July, in the year one thousand eight hundred and sixty-three, shall be free; and all slaves within the limits of said State who shall at the time aforesaid be under the age of ten years, shall be free when they arrive at the age of twenty-one years; and all slaves over ten and under twenty-one shall be free when they arrive at the age of twenty-five years; and no slave shall be permitted to come into the State for permanent residence therein."
I offer that as an independent resolution.
THE PRESIDENT. Does the gentleman withdraw his motion to reconsider?
MR. STUART of Doddridge. Not by any means, sir. It must be apparent this discussion must come up, and I do not want to get up a factious opposition and compel gentlemen to vote on a certain proposition which they do not desire to until other propositions have been before this Convention. I hope it will be put and carried.
MR. STEVENSON of Wood. I am willing, and trust the members have so regarded me to extend the largest investigation upon this matter embraced in this entire report; but what I would like, and what I think would conduce to the harmony of both the members of the Convention and of the people, would be to discuss these propositions distinctly and separately, each one by itself, and let it fall or let it be adopted on its own merits. Now, can there be an objection in the mind of any reasonable man to that? Is it right to bring important questions into this Convention about which there is very little difference of opinion and attach other questions in order to embarrass these and thus imperil the success of this entire movement? Is there any fairness about that? The proposition of the gentleman from Ohio is an honest one. It proposes to the Convention to accept this amendment of Congress. The gentleman will observe it is on a motion to reconsider.
MR. DILLE. Is a motion to reconsider debatable?
MR. STEVENSON of Wood. Yes, sir.
MR. STUART of Doddridge. I hope the gentleman from Wood will pardon me for making one suggestion. There is no possible way to avoid the entanglement of this thing. The parties can offer their amendment to the proposition of the gentleman, and it can come up.
MR. STEVENSON of Wood. Then where is the advantage of reconsidering? Then why not do it in this shape just as well?
MR. STUART of Doddridge. It is not proper to take it up in any other shape.
MR. STEVENSON of Wood. It comes up here, and if anything is attached on to this simple proposition to embarrass it, let the responsibility rest on the parties who do it. It will not rest on the friends of this new State measure.
MR. BROWN of Kanawha. The remarks of the gentleman from Wood demand a reply. He gravely says that this move is made to embarrass this thing. I say that is incorrect, and if he intends to speak of the motives of those who act, he has misstated those motives. I understand the motives of these parties who seek to bring up this question and discuss it and to present these propositions to this house is to secure the adoption of this other in a spirit of harmony and concession, and preserve a principle, and whoever impugns to the contrary utters that which is not true. I speak for myself; and I believe every other gentleman who coincides with me entertains the same sentiment. It may be a rather an adroit move to throw upon us who ask the open discussion of this question entire that we are seeking to avoid the fair discussion of the question now. Let facts speak for themselves. We propose to open the door and discuss the whole question on its merits. Who is it that asks to cut off and confine the discussion to part only and obtain the adoption of that part and then say to the other you have no alternative. I can well see a gentleman may entertain very serious doubts on the subject how he will vote on the first proposition in this house unless he has some assurance what is to be the action on the other. I am sent to labor for you and we have no difficulty about the labor; but the reward, the remuneration is a subsequent consideration which is well to be understood before the work is begun. The gentlemen say it is very fair to discuss the question of the work but I think it is well to discuss the question on both sides. Now, what is the whole effort made here in every shape and form on the other side? It has been to gag, to cut off, to take up a part, to allow but one clause in this whole matter to be considered and exclude the other from consideration. The gentlemen on our side have said at every step of this case they were willing to discuss this question on the whole merits of this question on the motion to adopt it, and when the vote is taken the party may call for his division of the vote; but every man who has listened to the discussion, has heard the whole case brought before his mind. Some gentlemen say they have not even considered the subsequent proposition. Why, sir, that is the very reason why we should discuss it, that it may be considered, and that it may be considered all together; that when you come up to vote on the proposition you have considered both so that you know how to vote. Suppose when you come to consider - those gentlemen who say they have not considered the subsequent proposition - suppose when you come to consider that subsequent proposition you shall come to the conclusion some gentlemen have come to and that some gentlemen announced, that this Constitution does not provide a security against taking private property for public use without just compensation; that it makes the people adopt the nefarious and infamous doctrine that you may take away the rights of the people and give them no compensation for it.
MR. STUART of Doddridge. I am under the necessity of ruling the gentleman down on that subject. Let us have this discussion on the fair and legitimate discussion.
MR. BROWN of Kanawha. I am confining myself to the remarks of the gentleman from Wood. He has rendered it necessary to make this reply.
MR. STEVENSON of Wood. Did the gentleman understand me to say that I had not examined this other proposition?
MR. BROWN of Kanawha. No, some other gentleman.
MR. STEVENSON of Wood. Then let your reply be to some other gentleman and not to me. (Laughter.)
MR. BROWN of Kanawha. But your remarks were on the same side. I think it was therefore highly important when we had considered the subject that we should consider it equally. But I believe I hope it more sincerely than the gentleman from Wood that we shall have harmony on this subject because I believe there are circumstances in which I have more at stake in it than he has - infinitely more, representing the people I do than he does. My whole soul is in this matter; and however predicated on fundamental principles that are right in themselves I cannot defend before the world if I were willing to sustain that proposition which my judgment and conscience condemn as infamous and an outrage and violation of fundamental principle. I would not even purchase the state I desire above everything else at such a price. I desire therefore to have this matter set plainly and fairly before the world in order that when I go back to my constituency I can say, here is what I have done; I have faced the world, and there is nothing I shall blush to own. And I hope every other gentleman in this Convention will return to his constituents with the same sentiment and feeling.
THE PRESIDENT. The question is on the motion to reconsider the vote laying the report on the table.
MR. HERVEY. I hope the motion to take up will not prevail. This Convention has met for the purpose of incorporating into the Constitution of the proposed State an amendment required by the Congress of the United States as a condition precedent to its admission into the Union. That amendment has been before the country and members for weeks and months. What is proposed here ? Why, sir, that the action of a committee, of high-minded and honorable gentlemen, I am free to confess - no gentleman doubts it; but that is not the question - but that the action of a committee asking the Convention to express an opinion on the liability of the State for the value of slaves emancipated under this amendment shall be tied on to what is intended to be the acceptance of this amendment by proper constitutional provision. Is it sought, sir, to incorporate the whole of this thing in the Constitution of the proposed State ? Not at all, sir. But it is sought to force this Convention - yes, sir, I will use that expression; I mean to use it in this qualified sense, to compel an expression of opinion on the part of this Convention with reference to a particular fact which is not necessarily connected with the provision you are required and seek to incorporate in this Constitution. Now, sir, whatever rights may be involved in it - whatever rights of property may be involved in the Constitution of our proposed State, they are established there. The courts will declare them. Of what effect or force is a declaration of opinion on the part of this Convention?
MR. STUART of Doddridge. I must again appeal to the gentleman to confine himself to the subject.
MR. HERVEY. I do not desire to infringe any right. I am certainly replying to the arguments which have been used here. I say it is sought by the report of this committee to compel the Convention to take up propositions which have no connection with the Constitution, to annunciate what? A fact, as they allege, and nothing but a fact; which fact more properly belongs to the courts of the country and the declaration on the part of this Convention of any such fact does not confer any right nor detract from any right of any citizen of the State.
MR. DERING. I would ask the gentleman from Brooke what motion he is discussing?
MR. HERVEY. Reconsideration.
MR. DERING. You are going into a general discussion of the subject, and I hold you are out of order.
MR. HERVEY. The discussion has been gone into.
MR. STUART of Doddridge. I would like that discussion stopped. Let us go at this thing rightly.
MR. HERVEY. I do not desire to trespass on the rule of this body; but I do not desire that argument shall be forced upon this Convention by the other side and those arguments not replied to.
THE PRESIDENT. The whole matter will come up if the report is taken from the table.
MR. POMEROY. I understand the motion to be the motion of the gentleman from Doddridge to reconsider. Now, if there was any advantage to be gained by that reconsideration, I would vote for it; but I cannot see what advantage is to be gained. Then you have the whole matter before you and the division will arise again whether we will lay the whole or part on the table. Let us vote down the motion to reconsider. I will submit it to the Chair. It is a legitimate rule laid down in all manuals that where a report is laid on the table a member can offer a resolution identical with a portion of that report and can have it acted upon while that report lies upon the table. Look at the propriety of the matter. A committee brings in a lengthy report and it lies on the table. That does not cut off all other members from offering resolutions embodying the same ideas of a part of that report. Suppose the committee has purposely connected with their report matters which the Convention does not approve of? Is it in the power of a committee to tie up the body so it cannot execute its will? The motion of the gentleman from Ohio is a legitimate and proper motion. It will if adopted accomplish the one object for which this Convention has been recalled. I therefore am opposed to taking this report from the table and hope the motion to reconsider may be voted down and that we will take up the motion offered by the gentleman from Ohio and dispose of it.
MR. WILLEY. I beg leave to submit a few suggestions. I think it is obvious to every one that during the progress of this matter this discussion must come up. It will come up. We cannot prevent it unless we succeed in adopting some parliamentary tactics by which, in the language of the times, we may succeed in gagging those that wish it to come up. I am satisfied there is not a member wishes to do that. Well, sir, we all conclude this discussion must take place. Why not let it come up on the report of the committee? Why not reconsider? Suppose we do, what then? We discuss the matter to our heart's content from the whole report. It may be that a very large majority of the Convention are opposed to the adoption of the second resolution. That may be. Why, sir, after we discuss that; been fully heard; are done with discussion, we come to vote. What then? Any member can move a division of the question and they can have the vote taken on the first resolution distinct and separate from the other, and can vote on that without voting on the second resolution at all - as distinctly as you would vote on the proposition of the gentleman from Ohio, while we shall have heard the discussion of the whole subject. If it is adopted, and a majority of the Convention are opposed to the second resolution, they can vote it down. The vote has come up on the second resolution some time or another. Now, what do we gain if we refuse to reconsider and take the vote upon the resolution of the gentleman from Ohio? What do we gain? Why, sir, it is perfectly competent for the gentleman from Kanawha to move an amendment to that by a distinct resolution incorporating the very same principle we are seeking to avoid. That must be done by way of amendment. Then you see we are just where we started. Why not, then, take up the report of the committee. It presents the question in full and fair manner; discuss the whole field; and when we come to vote, if it be the pleasure of the Convention to decide the questions and take the vote on each separately, it seems to me that would be the fairer and better way.
MR. PAXTON. What has become of my resolution?
MR. PRESIDENT. This proposition was before the house before that was offered.
MR. PAXTON. I will withdraw the resolution I offered in order that this whole matter may come before the house.
The motion to reconsider was agreed to.
MR. PINNELL. Now, for the sake of consistency and harmony, I will renew my motion to recommit. I think we can harmonize this whole matter better in committee than here. I renew the original motion to recommit to an enlarged committee of fifteen.
MR. STUART. The question is still pending on the motion to lay on the table.
MR. WHEAT. I intend to amend the second resolution. I promise the gentleman who seems to have special care of the second, and I will vote for every word in it provided I succeed in having the amendment I propose passed and carried. But, if it is their pleasure, I will vote an indefinite postponement of it afterwards. But, sir, I will withdraw my motion to lay on the table.
THE PRESIDENT. It was moved by the gentleman from Ohio, Mr. Paxton.
THE SECRETARY. The gentleman is mistaken. Mr. Paxton made the last motion to lay on the table and print.
MR. PAXTON. It was my motion. Then I offered a resolution which I have since withdrawn, the Convention having reconsidered the vote on the motion to lay on the table. My motion is therefore before the house and I now withdraw that motion.
THE PRESIDENT. Now, the whole question is before the Convention.
MR. VAN WINKLE. I rise not to argue the case but only to explain what is involved in the resolutions reported by the committee. In the first place, the resolution contemplates making the change required by Congress, in which is involved emancipating not only slaves to be born after a certain day, but slaves that are now in existence. In that report the committee have informed the Convention that according to their best knowledge on the subject, as the result of all the inquiries they were able to make, it was an entirely new case in this country; that no states had got rid of their slaves by emancipation by law; that no state has ever ventured to free slaves in existence; provision being made for only those to be thereafter born. It has been conceded that the state being involved, of course no right of property are attacked. It is therefore thought proper - I do not know but there has been a decision of the Supreme Court of the United States to that effect - but I am sure that it is entirely competent for the legislature to pass a law saying children born of slave mothers after a certain day shall be free. That requires no compensation because the theory is that it does not take from the owners of the mothers any property, because they could have no property in that which does not exist. There comes up therefore this case in reference to those under ten years and those between ten and twenty-one. We propose to introduce into the Constitution an amendment by which we give freedom to those slaves now in being or that will be in being on the day on which this Constitution goes into operation. All slaves between ten and twenty-one years of age, though they make two classes, the first to be free at twenty-one, the other at twenty-five.
Now, this, in the opinion of the committee, as they have reported here to the house, is taking private property; and on that branch of the proposition, I suppose there can be no difference of opinion. It is divesting persons of what by the laws we are acting under now and the laws we shall act under the moment this Constitution goes into operation; laws which are parallelled by the laws of all the states - I believe no exceptions except some of the new states - and under the laws property in slaves is a legal right and that slaves are therefore the subject of property. Now this proposed amendment to the Constitution that we have made proposes to divest the owners of this property. There can be no doubt about that. No voice here I am sure that can dissent from that proposition, that this amendment does propose to divest persons of what by the laws to which we are all subject is property. Now, we find in the United States Constitution, and in the constitutions of all the states, I believe - I do not think there is an exception; and in our own Constitution it is perhaps more to the purpose, a clause declaring that private property shall not be taken for public use without just compensation. Now, sir, it would be only a quibble to say this property was not taken for public use, because nobody here or elsewhere can with any plausibility maintain the position for a moment that the legislature or the constitutional convention of a state, the latter representing the whole body of the people in the direct way - no one will contend for one moment that they can divest private persons of their property under any other pretense than that it is forfeited to the laws or taken for a public purpose. It is precisely the case when ground by the acre is condemned for the building of an abutment or a mill-dam when the necessities of the country require any property to be taken. It has been illustrated in the movement of our armies, not within the states where war was existing but where it did not exist. It was done in 1812. Much private property was taken and in the very neighborhood of this Ohio river. Horses were pressed very near our vicinity to go to Detroit to drag the cannon out there, after, I think, the surrender of Hull. But the principle is so well established it needs no argument. The government may take private property for public use by making compensation. It results then in this, that we do propose by this amendment to divest persons of what our own laws acknowledge as property; and we are met by the words on the face of our own Constitution that this is not a legal proceeding unless we make compensation.
We have shown in the report, to call to the recollection of members, what must be in the minds of others, that four European kingdoms, whose colonies held swarms in slavery have within a very few years freed their slaves, some in one manner, some in another; most of them retaining them as apprentices for a few years until they could learn a little about taking care of themselves. But not in a single case have these monarchical governments, to which we consider our system of government, especially in its protection of private rights, infinitely superior, has even proposed to take the slaves and property of their citizens, their colonists, unless they make compensation for them. England paid, I believe a hundred and fifty millions sterling, and the others have paid in proportion for their slaves; and here recently, in the despotic empire of Russia, the edict of a man whom we are accustomed to regard as one who can say to every citizen of his empire not only go, and he goeth, come and he cometh, but go to Siberia - to death - and he goeth without judge or jury - by this decree in freeing the serfs the empire of Russia did not venture to make that move without providing for the compensation of the owners of the land to which, by their system of slavery, were attached, who were virtually the owners of the serfs.
The question is asked whether with a free republic professing an especial regard for the just rights of all our citizens, we shall stand behind these monarchies in our regard for the rights of our citizens. I cannot but suppose the answer to that question can be but one way. I am sure every member of this Convention will say that the owners thus deprived of their property ought to be paid. They must either do that or repudiate the section they have already introduced into the Constitution by a free and unanimous vote of the Convention and ratified by the whole vote of the people who voted for the Constitution, and the time - sanctioned and time-honored principle; one which was part of the common law of the country from which we are descended, which was imposed on us and which our ancestors thought important to place in the Constitution of the United States. It was not in the original instrument but in one of the amendments proposed afterwards. There is a series of propositions all having regard to the rights of the citizens which Chief Justice Marshall in one of his decisions pronounced the bill of rights of the people of the United States. And, sir, this clause in our Constitution is very properly placed in that article which we have entitled the "Bill of Rights."
MR. POMEROY. I would like to make an inquiry of the Chair. We had a standing rule that no member should speak more than ten minutes, and while I always voted against that rule, if that rule is claimed to be in force the gentleman cannot proceed further with his remarks. I do not say that I wish him to quit, but that when others come to speak, we shall all have the same liberty.
MR. VAN WINKLE. I think that rule was intended to be only temporary. It only applied to the remainder of that session. I only claim, sir, no other extra privilege than is permitted the chairman of a committee, to explain action of his committee.
I want to show upon what the conclusion of the committee is founded, and the inducements to them to offer this resolution. I have, I believe, shown, as the report shows in briefer language that it is incumbent on this State to make the compensation. The report goes so far as to say that the tribunal before which a citizen thus deprived could bring his suit for compensation against the State - he could only do it by permission of the State - but when he does bring it there could be no doubt under that clause of the Constitution and under the interpretation of it which the similar clause in the Constitution of the United States has received at the hands of the Supreme Court - I say in my own mind and in that the committee are unanimous, that that citizen can recover that money from the State.
Now, sir, the committee, after they got at their business, deprecating, as any member here did, that any necessity should arise which might make it incumbent on us to insert one word in the Constitution other than the proposed amendment by Congress, were glad to find that we could escape entirely from that difficulty because the matter was already provided for in the Constitution by the clause which I have cited. The committee, therefore, in concluding their report, after expressing their opinion on that subject and that it would be incumbent on the legislature to make provision for the compensation of these owners, have said that they do not find it necessary in this case and that they earnestly recommend that no change whatever be made in the Constitution except the proposed amendment even if that would not in their opinion be obnoxious to objection. If it is a mere amendment, they would not make it, a change merely of form of expression meaning substantially the same thing to make it, because advantage might be taken of us in quarters where it would do us injury. And what do the committee? In order to satisfy those who are most interested in this question, in order to obtain a larger vote, for that certainly would be its effect, for the Constitution before the people, believing that it is not only important that the vote should be as nearly unanimous as possible but that the vote should be extraordinarily large vote if it could be obtained, and believing it would be the best refutation against all the objections to the erection of this new State, this committee are desirous that something should go forth from this body to the world that would tend to secure such a vote as that. Not only so, but they are extremely desirous - for myself it is almost the dearest wish of my heart - that when the day could come as a people or a new State - and I hope and believe the day is not far off - when we will be the really independent citizens of a free State, a free republic in act and heart, and thought and deed, no taskmasters burdening us with improper legislation, with our improvement in population and increase in wealth - I say when that occurs, glorious as it will be for all of us, and especially those of us who have striven for it in this body, I wish we may come together with perfect harmony. I do not mean differences of opinion but that we shall all come feeling that this State is to be indeed and henceforth our mother; one that will be entitled to our dearest affections and feelings and one that, rejoicing in our lot, will induce us to extend the same fraternal feeling to every citizen of the State. That is the desire of my heart; and if I can see the people of this State come together that way, I have no hesitation in predicting, what with my sanguine temperament I have already prophesied, that the blessings to be showered down on us will be multiplied and multiplied again. And much of it will depend on that harmony. Now, is not it worth while for gentlemen of this Convention to yield something of their prepossessions to secure such a state of harmony. What harm can the passage of this resolution do? If it be said it will be used as a bugbear at the polls to frighten the people with taxation, that has been done already. Attention has now been called to the fact and the obligation to make this compensation is there upon your Constitution and every legal mind must know it; and if it is not there, it is upon the Constitution of the United States.
Well, sir, this committee have contented themselves with proposing a simple declaratory resolution of that which is upon the Constitution already. The committee were glad to find that in order to satisfy gentlemen who are most interested and constituents most interested, it was not necessary to place any additional clause in the Constitution, and the resolution simply declares as the opinion of this body that these parties thus to be deprived of their property are constitutionally and legally entitled to receive compensation from the State. It does not venture to dictate to the legislature what they should do; does not venture to dictate to anybody what he shall do; it comes here as a compromise proposition by which the vote of both sections of the new State can be secured. It offers itself in the character and spirit in which compromises must be offered and in which if they are offered in good faith ought always to be received; and in that way, and in that way only, asks by passing the simple declaratory resolution - which after all is but their own opinions - to satisfy the few remaining objections made by true Union and loyal citizens - by our brethern, as we are proud and happy to call them, just to satisfy the slight objections made from a certain quarter.
Now so far as the motives of this committee are concerned - so far from its having any disposition to embarrass the proceedings of the Convention or encumber the main proposition with another - so far from there being a want of relevancy between the two propositions - so far from being any dependency one upon another - I think the remarks I have made must have convinced every one that there is not a dependence, and that it is well we should by the expression of this opinion give the assurance which will be accepted in good faith and unite all parties in the cordial support of our Constitution when it is submitted to the people.
In conclusion, sir, I do appeal to every member here to banish from his mind all preconceptions in favor of a fair consideration of the proposition now made. I ask nothing more than this that every member will take this matter into serious consideration. It is not offered here in the spirit of party. It is not offered here by any clique or party that exists in this Convention; not from any who are likely to form a party by themselves when the new State is put in operation. It is those who have shared the toil and burden of the day who offer it to you; whose desires are as anxious towards this new State as those of any of you can be. It is those in part, and only in part who would suffer by the deprivation of their property if compensation is not made. It appeals to your sense of justice; it appeals to your honesty; it appeals to every better feeling of your natures and asks you to give them the slight satisfaction they are asking for.
In reference to this question of payment, whatever the amount may be, to be paid, it is not to begin until four years after the adoption of the Constitution, and it will be spread over seventeen years, and that an annual appropriation so small that the people could scarcely feel it will be unquestionably sufficient for the purpose. Some estimate the number of slaves at not more than one-half the number in 1860. I should not wonder if they are reduced to, at most, eight thousand. I have heard at second hand the expression of one of the public officers of the State that in his opinion there are not more than three thousand. But out of that it is only the single class between the ages of ten and twenty-one on which this would have any operation. I cannot say what the proportion would be. Take it at one-fourth or one-third, if you please, and make the calculation yourself. But remember that under the age of twenty- one. All statistics show the greatest number of deaths happen between those ages; and that many of those in the very ordination of Providence will die long before the time will expire. Again, some will be moved away; some will take themselves away; and it is very doubtful to me whether at the end of ten years a slave will be found in the State except some old one who, from attachment will remain. Again, there is a prospect, as we have seen, from the passage of the Missouri bill through the Senate, that the policy of President Lincoln may obtain a wider scope than it has yet had; that in his anxiety to free the country from slavery, unless slaves are to be freed as the act of war, he is preparing the way for compensated emancipation by the states. Even in his proclamation he reserves that if the slaves of loyal men are taken they are to be compensated. But in his scheme to apply particularly to the border states he proposed the freeing of the slaves but that compensation should go with it. I was going to say there is no doubt a similar bill can be procured to be passed with the concurrence of the people of the State or the legislature when it meets; that a bill will pass Congress providing for compensation not only for slaves under twenty- one years of age but for every slave in the State when it agrees to emancipate them within such period as the act may fix. Here is a sum of money necessarily small but distributed over seventeen years and not beginning for four years. It seems to me when this matter is explained to any real friend of the new State he will place himself in the same category which we are applying to those who resist the new State on account of the emancipation clause: He will be willing to forfeit a great good for the sake of positively nothing.
I am much obliged to you, sir, and the Convention for the attention given me.
The hour having arrived, the Convention took a recess until 2 P. M.
The Convention re-assembled at the appointed hour.
The President announced that the question was on the adoption of the first resolution reported by the special committee.
MR. STEVENSON of Wood. I would like to ask now whether this would be the proper time to ask for a division of the question?
Several members, "Yes, sir."
MR. STEVENSON of Wood. I ask that it be divided.
MR. POWELL. On this question I ask for the ayes and noes.
MR. BROWN of Kanawha. I have understood the Chair to decide that when we have got through the discussion and we come to the vote, any gentleman will have a right to call for a division of the question.
THE PRESIDENT. That is my decision.
MR. BROWN of Kanawha. This, then, seems to be going back to the very difficulties from which we were extricated.
MR. DILLE. It was understood the discussion had closed.
MR. STEVENSON of Wood. The gentleman from Kanawha will understand me. I waited, because there seemed to be no disposition to speak and the question was about to be taken and I then made my inquiry of the Chair if this was the time to divide.
MR. BROWN of Kanawha. Yes, sir; I understand. I had hoped the other gentlemen would have given their views on this subject. I confess I feel a very deep interest in this subject. In the depth of interest and feeling upon this subject, in the success of this measure, I yield to no man in this house, or in this State - none; I care not who he is nor whence he comes. I have labored for it from the beginning with all my might, in season and out of season. I have staked everything that I have and all that I am. I have done it from the conscientious belief that we were right in doing it and had a right to go on and organize a state in the manner undertaken. But I have ever believed in another fundamental principle, that in doing that we could do justice to all, secure to ourselves our rights and the rights of every individual in the land, every right to all that he has; that we would do violence to none - never would taint any of our actions with injustice. It is with that view, I think, this Constitution contains provisions which I conscientiously believe reach this case. And other gentlemen - 1 do not know of a single man I can say I know in this house who believes the contrary. But gentlemen out of this house intimate as much, and really it may be some gentlemen in the house may entertain different views. If they do, certainly it is but right we should know it. In the matter in which gentlemen do entertain different views, I do desire, as an honest man, that whatever we do shall be put beyond all misconstruction. I would have our action like Caesar's wife, above suspicion when we come before the world and our constituents who will examine our conduct.
What is it we are proposing to do? We are proposing to take from a portion of our people property which belongs to them under the laws of the land; which is guaranteed to them by the Constitution of the country and the laws of our State. Virtually that is the exercise of one of the highest functions of sovereignty, and the one ground on which it has ever been pretended to be justified before any people in the world is that it is done for the public good. The taking of private property for any other purpose is simply nothing more nor less than simple larceny and broken moral doctrine as old as property itself; that meum and tuum, mine and thine and that I cannot touch my neighbor's without a violation of that fundamental principal in the decalogue that we shall not covet our neighbor's wife, nor his man servant, nor maid servant, nor his ox, nor his ass, nor anything that is our neighbor's. It is the exercise of that sovereign power which every community may exercise under this fundamental principle and restriction, that what we take is for the public good, and that the public in the taking makes due compensation to the party that it injures. That is a principle which Chief Justice Marshall says runs through all laws and constitutions in America. It is one of the principles that, even, as the gentleman showed you before dinner, not a monarchy on earth has ever undertaken to violate; that the most absolute governments acting on this principle have always honorably exercised that sovereign power, carried the antidote with the poison. Why, the very same thing has been done in our government. When England liberated the slaves in the West Indies, they voted them a hundred millions of dollars to indemnify the losses, and then took upon themselves the education and provision of keeping up that community until it could stand on its legs as a free people. The French government made a similar provision, and report shows that Holland did in her colonies, and that even the absolute and despotic monarch of all the Russias has carried the same principle into his action in freeing the serfs; and that Congress when it passed the bill conferred it on the owners of slaves in the District of Columbia over which the Constitution gives Congress absolute power. In the very act that carries emancipation it provides indemnity for the owner. They would not put upon the record a stain. And that too by the most ultra men, who deny the right of property in human beings. Could it be supposed then that in the assembly of the sovereign people of West Virginia a member should express the sentiment of a readiness to take his neighbor's property without a compensation? I hardly think it would. I will not do any member of this Convention the injustice to believe that there is a man here that would; that there is an individual here that would be willing to put his hand into his neighbors pocket and take from him his property without compensation at the hands of the public that does the act. Well, this question stands upon a principle of high and acknowledged right of a recognized law and constitution as applicable to the old world and its monarchies as to the new world and its republics. We have adopted a Constitution which in express terms asserts that proposition, that no private property shall be taken for public use without just compensation. There it is, written as plain as possible for the hand of man to write it, but we are not the authors of it. We have not the honor of its origin, because our fathers penned and placed it there. We only copy it out of one instrument into another. That Constitution has been adopted and ratified by the people of West Virginia, and they have therefore ratified and approved that doctrine as their doctrine, whether re-asserted by this Convention or not and re-adopted by them in their votes at the polls. Who then can say that the people of West Virginia were willing to violate this fundamental principle or to sustain any construction that would violate it?
You appoint a committee on this question to present to you the most mature and deliberate consideration and investigation and opinion upon it as to the bearing and effect of that provision in the Constitution under the proposed amendment; and they, after investigating the subject have given you a deliberate report and opinion, reaffirmed in the resolution they have presented for the adoption of the Convention, stating the fact unequivocally, plainly and explicitly that this Constitution does provide that in the case of property proposed to be emancipated under it and by it, the owners whose property shall be taken will be entitled to indemnity from the state that takes them; and then the proposition comes up, the resolution simply asserting the simple fact; no proposition to make any amendment to the Constitution other than to meet the requirement of Congress, of course, but simply a declaration of the fact, just, they say, as the Constitution reads, and that is that no misconstruction hereafter can be put upon it and so our adversaries cannot rise up and say, here this Convention has assembled and adopted a Constitution which does deprive the people of the right of property without compensation, and this declaration meets them in the face, for there it is written in the Constitution and here is the declaration that we believe and understand it does so contain that provision.
I ask, then, what good, reasonable objection can be urged against saying what we believe? Why, sir, if you could only show to me by any reason that this Constitution does violate this fundamental principle, I would sever that arm from this shoulder before I would vote for it; live in serfdom before I would vote for any constitution that would found its fundamental law in wrong and outrage and robbery of its own people. I will vote for this Constitution because I believe, and upon full examination and investigation of it and comparison with the views of other gentlemen who concur in the solemn belief that it does contain the provision we here seek to express and because I therefore do believe it I will vote for it. But I ask in saying so that like honest men we shall say to the world that this is the fact and that we will not attempt before the world to palm this Constitution on our people under the pretense that a doubtful construction can be given to it and ask men to support it in the belief it does not provide compensation to the owners. And I ask honest men, my fellow-members, any and all of you, are you unwilling to state before the world and upon record the simple truth, and fact? I can see no reason why any gentleman should hesitate. We make no alteration in the Constitution. We declare, though, in express terms just what we understand it to mean, and that hereafter no man that comes here and charges us with injustice can meet us fairly because we here declare the purpose and opinion of this Convention, which will be entitled to respect all over the State. And, then, gentlemen - pardon me, Mr. President, there are some of us who come from districts and constituencies who are more deeply interested in the subject than other constituencies and other gentlemen. Would not you regard me as recreant to my trust if I were to stand here representing a constituency more deeply interested in the subject than any other in the State, if I should not desire whatever was done to be done openly and fairly, and if it was the intention to take away our property that we should know it and it should not be done by a provision of doubtful construction? And then I charge with having done that which I intended purposely not to do? I ask this Convention to do justice to these constituencies. I ask no more; to come up and do justice to us the representatives of these people by the adoption of that resolution - just what you all say to me privately, that this is the identical meaning we understand it to have and upon which we vote. Let us say it to the world, and there can be no disputing it hereafter. That when I go back to my people and take this Constitution I take this declaration of the Convention and show that all these members concur with me in the sentiment. It does contain to you, my fellow citizens, this guaranty and security that your rights have not been outraged, that no injustice has been done you, and that you have become part and parcel with the people who are unwilling to outrage the rights of a single citizen of the State. We are as loyal today as you are. We have borne more of the burdens and desolations of this war than you have; we have stood here for the new State and the Union amid the horrors and desolations of three or four campaigns that have rolled over us and rolled back and back again and you have been left undisturbed by the hostile foe. I want to go back to my people and say I can stand on principle and justify them and assure them of their rights have not been outraged and they are in no danger in the co-partnership they are about to engage in. And I ask this, in returning at the hands of this Convention; and I have not heard any gentleman give to me an excuse that will answer the demands and expectations of that people for not doing it. What objection, then, can be urged against it? Do you say it will complicate us when we get to Congress? That cannot be the case because the report of the committee expressly declares no amendments shall be made. We take it as Congress has presented it - nothing more, nothing less. We only declare our interpretation of it, exactly what we understand it to mean and did when we adopted it. And here I might say when that proposition was adopted, when we were assembled here last winter, I do not remember ever to have heard from the lips of any an opposition to the principle there laid down, that private property shall not be taken for public use without just compensation. I want to know if that which was a fundamental high and holy and simple principle has become rotten and corrupted now so that it would be an outrage to carry it into effect or even to make the declaration on the record that we believe now as we believed and acted then.
I know, Mr. President, that in my section of the country the charge of a construction of this Constitution by the enemies and those who will seek to defeat us, who have embarked and are enlisted with our adversaries and who are in hourly and daily expectation that help will come to them from the other side of the mountains and we yet be driven from this fair field of the western slope of the Alleghanies - that they will use every effort to arouse opposition to this Constitution on the very ground that we make no provision in this Constitution for the indemnity we propose. And I know, sir, that my community are more interested and many examples might be urged with more power and potency against this Constitution which if it could be painted in fair and open discussion would defeat it; for I entertain the honest conviction that if any man can go before the world this day and make the people of West Virginia believe on a discussion of this subject that this Constitution makes no provision and we are taking the private property of people without just compensation or securing the right of compensation, it would be voted down overwhelmingly. Overwhelmingly! Why, sir, I know some examples that might be urged if you could only give that construction and maintain it in my county that would rouse the prejudices of all mankind against it. Why, sir, I know some of my deceased neighbor's little children, little orphans, whose estates consist almost exclusively in the bonds of the State of Virginia and of slaves their ancestors have left them. The rebels have confiscated the bonds of the state by entering in this rebellion, and driving us into this division of the state have cut off their supply and estates in that quarter, and even have confiscated and appropriated to themselves the interest on these bonds. And here it would be proposed - here this paternal government you are proposing to form takes away the remaining portion of their estate. The rebels will take the bonds and the loyal men the negroes and turn these orphans upon the world. I know widows whose only support is the labor of the slaves that belong to them under the laws of the land. Should it be said we were constructing a Constitution that would take from them the only support the laws had granted to them and make no compensation, could we say that the people of justice and honor and integrity would sustain such Constitution? No; never! Never! sir, in the land of old Virginia! Let us then free this Constitution from any such construction by express declaration that what we do cannot be misconstrued. Why, sir, the author of that religion which many worthy and honorable gentlemen in this Convention profess here to be teachers of, tells us you must visit the fatherless and widow. But, 0, sir, would not the fatherless and widow say save me from such visits if they come in the form which will be put on this Constitution if you do not adopt this resolution? Why, then, sir, if we intend to do right - and we say we are doing right - and have written it in the Constitution in words that are plain, why, then, not say so explicitly as in this report with this construction we give it and that is the only true construction, in our humble opinion. Why, sir, what would a gentleman opposing this Constitution, what would his opinion be worth an audience of Virginia people when he should say this means take away property without compensation and another should rise up and show the vote of this Convention adopting the resolution declaring that is not true; that in the opinion of this Convention this Constitution does guarantee and secure the rights of these people. The people would just throw up their hats and shout, "Hurrah for the Constitution, and the new State!" We will go for the opinions they have expressed, these objectors to the contrary notwithstanding. But, sir, vote down that proposition and whatever your private opinions may be you will never let it go to the world that this is a fact, these objectors will go forth with tenfold strength and when they charge it upon the stump that that is the construction, they will say the Convention did not dare to say so; they will say the Convention repudiates that doctrine. And when they come to ask for compensation, they will say, go home; we have taken your property and appropriated it and now help yourselves. We will say it was not so. But they will say there is the vote of the Convention and they will read it on us. We will say we talked to these gentlemen privately and every man of them said that was his opinion. They will say, sir, we don't care what they said behind the door; they would not say it in the face of the world. That is the way they will charge us. How can we answer? I then ask this Convention to do nothing that is wrong and submit to nothing that is wrong. It wrongs nobody but does right us all. It secures us against misconstruction. And then, Mr. President, what more? When this State has been formed, when West Virginia shall go forth in the brightness and glory of her youth and bloom and shine as one of the stars in the national galaxy and the representative shall stand in the halls of the Senate and Congress and shall there claim their parity with their equals of the other states, they will never be taunted with having been parties to the committing of an outrage to property and helpless individuals, and they will always feel the better and greater for the fact that in the peril of this State, honor, justice and integrity has been preserved and that while they have maintained the Constitution of their country and the liberties of the people they have secured a guaranty of the rights of their citizens and it will be a proud day. I am confident, I feel, that whose ever fortune it may be to be the representative of this State will stand six feet taller on the Senate halls than if you vote down this proposition today and hear his adversary charge him from the other old state, your people are robbers. I feel and honestly desire that when West Virginia shall take her place among the states of the Union she shall be if the youngest, the brightest and liveliest of them all. I do not wish her when she comes in the hall of any sister that she shall feel she is in anything inferior to Kentucky or the old state - that the younger shall be the inferior.
I hope therefore that this Convention will not hesitate, not to do anything that is wrong, but will not hesitate to do that which is right and all must admit it. I thank the Convention for their attention and apologize for having tresspassed on their patience so long.
MR. TICHENELL. Will the gentleman from Kanawha answer me one question: I wish to know if it is your opinion that your rights in any sense are in jeopardy if this is not passed. Do you think they are not secure, or do you think they are secure, under the Constitution?
MR. BROWN of Kanawha. I thought I had stated it. I vote for this Constitution under the belief and understanding, as my judgment, and aided and assisted by the gentlemen on the committee who have discussed and investigated this subject, that this Constitution makes secure to every owner whose property shall be taken compensation, as provided in the VI Article, second chapter. And if I did not so believe it I would vote against it and forever. Although I may sacrifice everything to secure the new State, yet I would sacrifice that State even before I would sacrifice my honor. I would not purchase the State at the price of my reputation. I believe the Constitution secures it but others do not. People throughout the country disagree on this subject, and I ask the Convention to put our opinions here on record that we may not be misconstrued. I know that the charge will be made, it will be urged upon us from every quarter, and more potent in our section of the country perhaps than it will be in this. I would scorn to fasten this Constitution upon the people of West Virginia by any other than open and fair dealing that I can defend before the world, so that it shall not be said, you have a new State Constitution procured by keeping back from the people the true state of the case. Let us therefore give to the people the fact, an explicit declaration and understanding of the men who adopt and vote upon it what they understand about it; and there is no question about the fact, it will have a powerful weight on any construction to be given hereafter by any and every people. Why, sir, why is it in the adoption of the Constitution of the United States every jurist, every statesman, every senator, every learned man who undertakes to construe it always looks to the opinions given in the Federalist by Mr. Hamilton and Mr. Jay, who were in the Convention, and who on presentation to the people gave their views and understanding of its principles and meaning. It is ever regarded as the highest evidence by those who expound the Constitution, because it was contemporary at the time - and by those who made the Constitution; made at the time to give the people the understanding of those who framed the instrument; and would not that be precisely the course with the action of this Convention on the subject? But hereafter when the rights of the parties shall arise and be controverted under it, if there was any doubt on the subject, people would turn to the Convention itself and say what did these men at the time they did the act understand about it? They would read that resolution and say we understand this. It expressly provides those whose property is taken by it shall be compensated for it. And don't you think that would end the controversy? What sort of speech would a lawyer make after that was read on him. He would attempt to convince a court or jury that the Convention that made the Constitution really did not know what they were about; that when they adopted this clause and subsequently the amendment, they meant something else than is there expressed. No, sir, the court and jury would send the gentleman away; that he did not understand. They much prefer to rely on the express declaration made at the time by the gentlemen who made the Constitution and who therefore were the best interpreters of it. This is the simple view I entertain.
MR. HARRISON. Before discussion goes further, I offer an amendment to the report. Insert in the second line of the second resolution before the word "owners" the word "loyal."
MR. BROWN of Kanawha. I fully approve of that because that was the idea expressed in the resolution advocated by myself. I have never been the advocate of the rebels and I stand to represent the loyal men and loyal interests, and I shall vote for it with a great deal of pleasure. It never occurred to any of the committeemen that it was not in until it was called to our attention since it was reported here.
MR. CALDWELL. I believe, sir, the 6th section of Article II is not before this Convention for its adoption. If it were and I had been ever so much opposed to its adoption, after the argument of my friend from Kanawha, I would be induced to have gone for it. But, sir, it has been adopted by this Convention at a previous session; it is a part of this Constitution which this Convention affirmed, which was submitted to the people of West Virginia for their ratification, and they have ratified it. It is there, sir, part and parcel of this Constitution. Now, sir, his argument mainly went to the propriety of adopting this provision in the Constitution. So far as it did go there as to that matter, I concur with the gentlemen entirely.
The other branch of his argument I may illustrate in this way, and I do it briefly. An old friend of mine in this city - I will give his name, John McColloch - who for the last thirty years has been clerk of the county court of this county for some months past has been so much afflicted that he has not been able to give his personal attention to the business in his office. He expects notwithstanding his affliction to continue in life for months or years to come, and expects, sir, under operation of this new Constitution of West Virginia to be a candidate for the office of recorder. He sent me a note night before last that he desired to see me. I called upon him, sir, in his sick chamber, and the object in sending for me was to ascertain of me whether the duty of recorder could be performed by a deputy. Not having the Constitution in my pocket I looked it up and found an express provision in the Constitution that the duties of all the county officers are to be performed by the office holders themselves or under their supervision, implying thereby, as I am clearly satisfied, the right of the holder of the office to discharge the duties of that office by deputy. Now, sir, for the satisfaction of my old friend and of some other office holders in the same predicament, I might as well ask this Convention to pass a resolution defining that the duties of the office that I have reference to can be discharged by a deputy. It seems to me there would be as much force in the one as the other. Why, sir, this provision is here -
MR. BROWN of Kanawha. The difference is that in the case we have been discussing we are introducing an amendment to the Constitution which gives the adversary the pretext under which to make this pretense. There is no amendment proposed in the one you suggest. The very difficulty arises that the adversary presents this proposed alteration as ground for misconstruction of the 6th section - that we are now proposing to alter the Constitution in the very particular that is affected by the amendment.
MR. CALDWELL. We are proposing to alter the Constitution and take your private property for public use; but we don't propose under that amendment as proposed by Congress to take it without compensation. Most clearly we do not propose anything of the kind. The amendment as proposed by Congress does not say that private property shall be taken without compensation because there is a provision in the Constitution. That is not proposed to be changed at all. That secures to you compensation for your private property when taken for public use. There is no question of that. Then why because this amendment is required by Congress do you ask us to declare here by resolution? We are not all lawyers, lam part of a lawyer; but what is my opinion worth to go abroad to all these people that there is such a provision in the Constitution. What is the opinion of my friend from Monongalia worth going to my constituents? They say my friend from Monongalia votes for this resolution satisfying you thereby that there is such a provision in the Constitution. Why I would rather go to the attorney of the commonwealth; he is a lawyer, I will consult with him, and I will ascertain from him whether there is any such provision in this Constitution to compensate me for my private property taken for public use. Yes, sir, we go to the lawyers and through the lawyers and tribunals of the country our rights are asserted and will be maintained. There is no question of it.
I regret that this proposition has been introduced. The gentleman from Kanawha thinks it can do no harm. Sir, I am satisfied it will do a great deal of harm. If I thought it would do no harm at all I would most cheerfully go with him. I do not oppose it because I expect my property to be taxed to pay the compensation for his slaves. I do not object to it; willingly, cheerfully, would I incur the tax; but, sir, it will do the harm in this way. Only a few days ago, a German who has lived in western Virginia twenty years in my presence paid to the sheriff of my county a tax on land amounting to over ninety dollars. I had a conversation with him as to this new State and he told me he was a new State man. Yes, and he went further; he was for a free State. "I desire to have a new State, and I want a free State; and they tell me" this simple German said, "you will have to build a capitol, a penitentiary and asylums of one description and another, and the result would be it would increase our taxes." Well, sir, when our enemies have taken the stand, they will go to this poor Dutchman, and they will tell him: "Don't you see by the expression of the opinion of this Convention that there is a provision in this Constitution that our property - we have no interest in slaves - must be taxed to pay these slave-holders for their slaves; and the Convention has gone out of its way to pass a resolution and declare that in their opinion that is what this provisions means." Now, sir, there is the harm; and for these reasons I cannot give my consent to the resolution.
MR. LAMB. I intended to have offered, on consultation with the committee, as I understood there had been some misconstruction with the resolution, to add at the end of it these words: "If they have not forfeited that right by disloyal acts."
MR. HARRISON. I supposed the word "loyal" would accomplish it. I am willing to take anything.
MR. LAMB. I presume the committee will all consent to that being added. It may be added and stand as the resolution of the committee.
MR. TICHENELL. I have a desire to say a few things in regard to this. And, in the first place, I remark that our interests in western Virginia are identified with the free states. I own landed estate for which I paid six thousand dollars in cash and if we do not get a state, I will enter in a bond this day to take one thousand dollars - I am so well satisfied it is worth nothing to me if we do not get a new state. I am equally well satisfied that if we do not get a state under this Constitution and as result of the action of this Convention we will never get one. Mark it. I am as well acquainted with as many people, as many hills - mostly hills and as many rivers, as any man in western Virginia; as any man who now lives in it or who ever did live in it; and I know no man well acquainted with me will call this in question. Since this wicked rebellion has come about I have traveled thousands of miles in public and private conveyances, when I have been watched by guerrillas on both sides of the road, and dodged to miss them, and got out and talked to our people about being loyal; and I now feel prepared to say, as I have not been an idle spectator of this whole thing, that if we prove recreant to our trust, when the high prize that we have contended for for forty years is within our grasp, if we let it slip out of our hands, I tell you we are not secure. I do not believe there is a gentleman on this floor dare get up and say if we now dodge - to use a homely phrase, "flunk" out. President Lincoln will guard us much longer, that the army will defend us and keep the enemy from coming in upon us. We have prosperity and happiness and glory within our reach; we have degradation and poverty before us; and which it is to be will be determined by the success or failure of the great project for the final consummation of which we are assembled here today. I was sorry the gentleman from Kanawha was so vehement in urging their right to be remunerated for their property. I would not own a member of this Convention if he would say publicly or privately that we would take their property from them for nothing. I claim to have as much honor on that score as any man will have; and when it was thrown into my teeth at Kingwood that if we adopted this Constitution we would have the negroes to pay for, I proposed to buy one negro at my own expense, and another proposed to buy another; and I conceive enough gentlemen in western Virginia could be found to take all the poor children of the negroes in the State and make provision for them rather than give up the State. The gentleman from Kanawha plainly intimated that he would rather sacrifice the new State than jeopardize the interest of the slave owners.
If I had been a member of the Convention when that section 6 was adopted, I would have voted for it with both hands and if a proposition now was lawful and was made to strike it out, I would resist it. It is there and I am glad it is. It secures to every loyal man every right he has in slaves which this amendment proposes to take away. We are asked then by the gentlemen from Wood and Kanawha why not say so by the adoption of their resolution? And the latter more than insisted that we had no reason to assign why we would not say so.
Now let us look at a few thing dispassionately. If I believed this day to vote this resolution would go farther to carry the State - 1 do not believe it would in fact - 1 would vote for it in a moment. I look at it as victory or death, nothing less and nothing more.
But now let us consider. Take the last census. We had in our county 9,672 white people - about three and one-half hundredths of the population in the whole state. That is about the proportion they bear; and since this war has commenced, I have taken pains to examine and find that about one-half in value of all the negroes in our county are gone. The widows haven't got them, nor the children. They are only comparatively few; and the few that own slaves compared to the many that must vote for this amendment is as a drop in the bucket. It is a small matter. But God forbid that I should drive any voter away from the new State. I hope every loyal man will vote for it from one end of the State to the other. But I do know, and I believe what I know from experience, that if we adopt this measure, I can pledge for my county of Marion and for a dozen counties around us that the Union men, the loyal men, "dyed in the wool," will vote for it under any circumstances. Our sentiment is that we would vote for it if it were a hundred times worse than it is. Then when we come out of the woods and are placed in that honorable position along side Kentucky why then, sir, we will fix it up just as we want it. But now we have but one beaten track to follow. In my county, and in many of the other twenty counties, to my certain knowledge there is a floating population among whom the price of a vote is a big dram of whiskey, or an oath, or the word "abolition." Here they hang on the fence; and these votes will count as much as thousands. These men will be told: "you have nothing to do now but vote for this Constitution and then they will turn round and tax you and make you pay for the rich people's 'niggers' ". Let this Convention come out and formally recommend that the people pay for all the slaves. They will seize that, and we will lose hundreds and thousands of votes; and before God today I am afraid we will lose it if we pass this resolution. The gentleman from Kanawha argues there is probably more in his region of country than we are aware of. Well, now I will admit some few individuals might vote for it that would not if we do not adopt this resolution; but while I am free to admit that thing, if you will compare hands with the whole country and then look at the small proportion of the persons who have this species of property, the argument can be brought to bear upon the masses and used with much greater effect the other way. While a small number of slave holders might be led to vote against the Constitution because the Convention refused to declare their slaves should be paid for, a much greater number of non-slave-holders might be brought to vote against it if the Convention made this kind of formal declaration or pledge. It is a knife that will cut both ways. The question is in which way will it do most harm. I appreciate that gentleman's views and believe him entirely sincere in his wish to promote the success of the new State; but I tell you every one I fear the consequences of this vote. You have the right to hold property and they cannot take it away from you. Do you believe your right secure in the Constitution without this resolution? He frankly admitted he did. My friend from Parkersburg frankly admitted that he did. Then let me tell you, while my judgment is no better, my opportunities of knowing facts bearing on public opinion on this subject has been more than many men on this floor; and I assure you it will be wise to let well enough alone. The adoption of this declaration will be used against us and that the same end can be accomplished. I am willing to vote for any plan that will aid my friends and brethren from the lower end of the State so as we can manage not to do us any harm. I do not want to take advantage of them or their property, and if I were in the legislature I should vote to make provision for paying them for it. It is for the effect on our people. They are not all lawyers; they are governed largely by feeling and passion. Some gentlemen have said since I came to the Convention that there will be no vote taken against the Constitution, and "they will lay very low." Gentlemen, I am prepared to know; I know of some organizations in the hills and mountains, and I know the spies or fellows that have gone there to plan our ruin while we have been sleeping. If they have the least hope of success on the morning of the election they will come forth like the flames of a smothered volcano and overpower us if possible.
I believe this whole subject should simply be subject to the legislature for adjustment. That is where it will belong. As was said by the gentleman from Marshall, my opinion here, that man's and this man's are only opinions; would not have any effect; not be quoted; not be authority; could not affect the right that loyal citizens have to their property in slaves. Let us work together for a new state; and if in your wisdom you can shape this in such form as not to injure the popular vote when you come before the people, I am for it. The new State is my object. We have a very eccentric young man in our neighborhood, and when he thought of being married, he prayed three times a day to be directed. But when he prayed, he always said, "Lord, let it be Becky." So in all our actions I want it to be Becky, or the new State. (Laughter.)
MR. WHEAT. I find before me many legal gentlemen that have got their views in regard to this matter. They have worded the Bill of Rights; they have cited instances where states have used slaves and made compensation; they have gone into Europe to show what England, what Russia and France have done. And while I give credit to all that; while I believe as firmly as any man on this floor that no government ought to take private property for public uses without compensation, I differ with gentlemen widely that this is proper and analagous. If the Congress frees those negroes and appropriates them to public use, that they should do all the servile work that they have done for their masters, then would obligation be in point; then would it have been appropriating private property for public use. But, sir, I know the government cannot deprive a man of private property without compensation. This great charter of ours, the Bill of Rights, does not secure to a man contraband goods from destruction and loss. But while I say this I do not want to be misunderstood, though I am opposed to this resolution, as asserting that private property, even the emancipation of these slaves shall not be paid for. I am perfectly willing they shall be; but, gentlemen, not on the hypothesis that I am compelled under the Bill of Rights to do it. I will do it as you did yesterday: donate it, but not as a right; and I would aid them in fighting for that if that were any sort of guaranty.
I said before the war began if the South wanted any original amendment to the Constitution, ask it as a courtesy; don't demand it of the North as a right. The Constitution of the United States expressly, and if they meant it, well; but if not, abide it. It is the best you can do. I say so here. Yes, sir, we will donate to them every slave freed by loyal persons; and I think, gentlemen, when it is examined critically you will have but a few dollars to pay. In Morgan county we have 48 slaves, 46 free negroes. I can buy the whole 48 for $48.00. (Laughter and applause.) There is not a loyal slaveholder in that county. I would save my $48.00. I have never seen a slaveholder that is loyal. I know, sir, that if this compensation is to be paid to loyal men, you will not lose a dollar. Let us tell them we will donate it. Whenever we appropriate for public uses I am willing to pay. But, sir, to free the negro is to change his status. It is like pouring whiskey on the ground. We are not under obligations to pay it, unless to avoid all difficulty; and then I might vote with the gentlemen who seem to be fostering this second resolution.
I wish to offer an amendment: "provided, however, that the proper compensation thereof be made from moneys arising from the sale of rebel property, not from the taxes imposed on Union slaveholders."
That is in principle in accordance with the gentleman from Kanawha. He has urged upon us that he will not vote for that Constitution, sir, unless this indemnity is made, on the ground we would be wronging our neighbor. I endorse it, sir. Don't take taxes from the non-slaveholder and pay to the slaveholder; because if he loses his slave say it shall be paid out of rebel property and not out of the non-slaveholder, and you will get every German to accommodate the gentleman who is fostering this second resolution.
MR. SINSEL. Mr. President, when I was here last winter I called for this 6th article. I endorsed it then most heartily and I still endorse it. At the same time though I was in favor of treating the subject of slavery nearly as we did treat it, to just let it run and let it be subject to legislation. I believed then the Legislature of the State of West Virginia, if we were admitted, in a few years would prepare for the gradual emancipation of all the slaves within our borders. I believed the good sense of the people would prompt them to do that. And I was fully conscious at the same time, if the thing was done, if the legislature emancipated the slaves, that under this 6th article they would have to prepare for compensation. I am sure of that. I was then; and my opinion has not altered. But, Mr. President, I think this amendment introduced by Congress very materially changes the whole thing. The legal gentlemen here have expressed the opinion that such is the fact. It does seem to me if I believed as strongly as they do I would not ask the adoption of this second resolution. We are not now acting in the capacity of a legislative body. We are, as it were, thrown back into our original elements and forming a new government for ourselves, or at least the organic law under which all the other laws of the State must be made and be made to conform to. We may now, in this organic law if it is adopted by us and sanctioned by the people, we may declare certain articles property or not property, just as we please and from the time of the adoption and ratification it will either be property or not property. This amendment proposed by Congress then declares and if adopted by us and ratified by the people declares that all persons under a certain age shall be slaves, or property if you choose to have it so, until a certain time, and when that time arrives they cease to be property. Hence under this 6th section they could not claim compensation for the public has not taken private property in that case for public uses, because it has ceased to be property under the organic law of the State. Well, then, if I am right in that, you see the thing is materially changed. I believe it is. These men are lawyers, it is true; but great men differ, and surely a small man has a right to differ from them.
MR. TICHENELL. Can they cease to be property until they are paid for?
MR. SINSEL. Yes, sir, the very minute one class of these slaves arrive at twenty-one they cease to be property and they are men and women no longer property, no longer chattels. The very minute the other class arrives at 25, they cease to be property. If they are property after that time, to whom do they belong? Not to the State; the State has never engaged in the speculation in slaves. The law says "shall be free" when they arrive at the age of 21, or when they arrive at the age of 25. They become free the instant the time arrives. Being "free" how could they be slaves at the same time; and if not slaves they cannot be "property." The gentleman from Kanawha remarked that he could not conscientiously and consistently with his honor do a certain act. How could I, while I am in favor of compensation, I believe that resolution does not set forth the facts, and believing this, how could I vote for it? I would be perfectly willing to say every loyal man ought to be compensated. When you confine it to this 6th section, why that means it; but now taken in connection with this amendment required by Congress, I don't agree to it.
MR. VAN WINKLE. The resolution has not struck out the 6th section.
MR. SINSEL. Well, then, if the second resolution is not designed to make it obligatory on the legislature to prepare for compensation, why urge it with so much vehemence. You are aware, Mr. President, that any debates of this Convention cannot be used in judicial tribunals to determine the meaning of this instrument. The judges are to decide from the language used and not from the arguments of the members of the Convention. In the case of referring to the Federalist for interpretation of the Constitution of the United States, the papers in the Federalist contained simply the opinions of the great men who wrote them and had no authority because they were contemporaneous. Well, then, if we are to be governed by these opinions they sometimes have a very pernicious effect. Here is the opinions of a committee on federal relations used in the Legislature of Illinois. You can see from that what our enemies will do - how they will try to use everything against us. They say here:
"This is in accordance with the plan of action of the general government and Congress generally: The attempted enforcement of compensated emancipation, the proposed taxation of the laboring white men to purchase freedom and secure the elevation of the negro, the transportation of negroes into the State of Illinois in defiance of the repeatedly expressed will of the people."
Here is "Imprisonment of Refugees from a Southern State." "The dismemberment of the State of Virginia and erecting within the boundaries a new State." and so on.
MR. PINNELL. What are you reading from?
MR. SINSEL. The Wheeling Press.
MR. PINNELL. Oh! (Laughter.) It is not the text-book of this body.
MR. SINSEL. Here are these opinions as pernicious as any ever uttered by men published to the world. So those that disagree with us will use their opinions to our injury and prejudice. Now, if this resolution is simply to be spread on the journal and not made part of the context of the Constitution in any way, I have very little objection to it. If we could without imperiling our existence or prospects as a state vote for an amendment to the Constitution to allow compensation to every loyal man I would do it - surely I would.
MR. LAMB. I feel that a few remarks from me are due to the position which I occupy on this committee. Most heartily did I give my consent to the resolution there reported. I could not do otherwise. I have no doubt on the subject with the best lights that I could bring to bear on it and the best judgment I could apply to it. That the legislature of the new State will be bound under the Constitution which has already been ratified by the people to make compensation for the property which they thus take for a public benefit - that is all the resolution declares. And I hear from gentlemen on all sides of the house that they agree with this with the exception of the gentleman from Taylor who has just taken his seat. If there is a general agreement upon this subject are we going to ask the people of West Virginia to vote under a misapprehension in regard to the matter? If gentlemen apprehend that the declaration of the opinion of this Convention on that subject is to do this infinite mischief and endanger the defeat of the new State, the mischief is already done. The public will know what will be the result of this matter. Gentlemen may argue it as they please before the people. The mischief is done, if there is mischief to be apprehended from that. I ought to notice the argument of the gentleman from Taylor that there is no property taken away because it ceases to be property. Why didn't you put into your Constitution that private property shall not be taken for public use without compensation and the legislature pass a law not to take a man's property but to say it ceases to be property? I say the legislature cannot do it; this Convention does it. It is the organic law; it is of a different force and effect from action by the legislature. You are commencing a new government.
MR. LAMB. Neither the legislature nor the people can rightly violate the great fundamental principle of justice and truth.
MR. SINSEL. Have not the people whom we represent here the right to make a government to suit themselves?
MR. LAMB. Certainly they have; but they have no right to take my property and apply it for the public benefit without making just compensation to me unless I have forfeited it by treason to the State. If I have done so, I have no right to compensation at all.
MR. STEVENSON of Wood. The gentleman from Taylor denies that slaves coming under operation of this amendment are property; and the gentleman from Ohio asks if they are not property, what then is the use of this section 6? I ask whether there is not other property besides slaves that may be taken for public use? And if there is, that is reason enough for the provision found in the Constitution of the United States as well as in our own Constitution.
MR. LAMB. The gentleman misunderstands my position altogether. He does not state it correctly at all. The argument of the gentleman from Taylor was this that this act did not take private property for public use because it ceased to be property and you thus got rid of the great principle in any case; that by your Constitution or by your law you declared this thing or that thing, or any other, property and could declare that it ceases to be property, for property results from the law and is the creature of the law and you get rid of this great principle of moral justice. Sir, it is not merely as a constitutional principle. This is a principle high above the Constitution, a principle which exists and always will exist entirely independent of all constitutions.
I have here, Mr. President, the Ordinance of 1787, which some gentlemen are fond of quoting. That ordinance was enacted before the Constitution of the United States, and it provides as a fundamental and unalterable principle that should the public exigencies make it necessary for the common preservation to take any person's property or demand his particular services, full compensation shall be made for the same. It is a principle of justice independent of all constitutions, and it is a principle that is recognized everywhere, as much in the empire of Russia where the only constitution is the will of the autocrat as it is in the free republics of North America. Such being the state of the case, however, and I take it that as a constitutional principle and a principle of common right and justice independent of all constitutions, there can be no doubt in the mind of any man who has reflected on this subject. But such being the state of the case, why should we hesitate to say so? Do we intend to deceive the people in this matter; do we intend to carry that Constitution upon false pretenses? Sir, I do not. What I mean I intend the people shall understand. I shall not present that Constitution to them as meaning one thing when I know it means another. I will meet the question fairly, openly and boldly. Nor do I believe, gentlemen, that you endanger the new State by this course. I do believe the danger greatly preponderates on the other side. You here in the northwest are accustomed to confine your vision to your own particular section. You forget the section that you include in the new State towards the south. You forget the counties of Greenbrier, Monroe, Mercer are within your new State - that you intend to force them into the new State although they had nothing to do with forming the institutions which you framed for them; that though their voice has not been heard on this floor, or in any other convention which has been assembled in this State, you make the Constitution for them, not simply for those counties but for a large number of other counties, and say they shall come into the new State; and you will take their property - or what they consider their property and they shall not have any compensation for it. Gentlemen, they will resist you to the death. If I were a citizen of Greenbrier, I would do so. I would submit to no legislation and no constitutional enactments of that character.
MR. SINSEL. I would like to ask a question: What legal effect will this resolution have if it is not made a part of the Constitution?
MR. LAMB. I will speak of that directly.
Look, then, at the other counties to the south of the Kanawha. You expect a vote there upon this question of the new Constitution - at least in some of them. What will be the effect of this matter coming before them upon this position, that their property shall be taken from them? Gentlemen in this Convention deny that they have any right whatever to compensation. If that is to be the impression given by your votes - if you vote down this resolution, that will be the impression given to the people of Greenbrier, Monroe and Mercer, that you never intend they shall receive any compensation. That will be the natural impression not merely to the people in the southern end of the new State but it will be the impression here, that you do not intend ever to make compensation for a single slave. Let this resolution as it has been introduced here, simply declaring that you think they have the right of compensation, be voted down, and what will be the impression in Green- brier and Monroe when you seek to extend your government over them, and in the other counties along the southern border of the State - in Kanawha, Cabell, Wayne and Putnam, and other counties similarly situated? What will be the impression of the people there? I tell you there is ground to apprehend what the gentleman from Kanawha has told you here, that that people will and must vote against the Constitution that you propound to them under such circumstances.
Now, Mr. President, I think the people of the northwest are ready to meet this question fairly. I think they want to understand when they vote on this Constitution what it is they are voting for; and I think you will find, even in the northwest, that instead of increasing opposition to the Constitution, such a declaration as we propose to make will be calculated to quiet all schemes of opposition that are perhaps - though I know not the fact - as stated by the gentleman from Marion, being got up. They will see that this Convention are disposed to do nothing but what is just and right; that they are willing to trust this matter to the people. That they have no such idea of the people as to suppose that it is necessary to deceive and cheat them in order to get them to vote for a measure which is essential to their greatest interests.
Mr. President, there was another view of the case which I wish to present to the Convention; and it is that in respect to the amount of compensation which is here involved. So far as I am concerned, I must confess this is not a consideration which would influence me. The principle is right and I am willing to stand up to it let the amount involved be what it may. But it is a consideration which will influence some, and I want to put it upon a correct footing.
There was by the census of 1860 some 12,600 slaves within the whole limits of the State of West Virginia. In the natural course of affairs, even had not our troubles come upon us, this class of population was decreasing. It would be now, even in the natural state of affairs, less than it was then. Considering what West Virginia has been subject to - that the tread of armed hosts has been upon every part of her territory; that raids of all kinds have taken place throughout it; that most of the large slave holders even in the undisturbed districts have moved their slaves off to the South; that immense numbers have run away - and taking into view all the information which we can gather in regard to it, I feel perfectly warranted in saying that there are not five thousand slaves in West Virginia today.
Then, sir, under the amendment proposed to us by Congress, slaves who are over twenty-one years of age on the 4th of July, 1863, are not affected at all. There is no compensation for them. They are not liberated. They are not liberated by the clause which I hope will be unanimously inserted in our Constitution.
I have the exact figures before me. We do know from the ordinary proportion of ages that of that 5000 slaves now in West Virginia 2000 at least must be 21 years of age on the 4th of July, 1863 - 21 and over. You have 3000 slaves left then, in which perhaps the question of compensation is involved. Now, if the slave on the 4th of July, 1863, is under 10 years of age he is to be manumitted on his arriving at the age of 21. Say that on the 4th day of July, 1863, he is just 10 years old, his manumission takes place 11 years after that. Say that on the 4th of July, 1863, he is one day old, his manumission takes place 21 years after that. These slaves then will be liberated; and if the State is bound to make compensation for them, this class of slaves will be liberated and compensation must be provided for them within eleven to twenty-one years commencing at eleven and ending at 21 years after the 4th of July, 1863.
But let me call your attention to another consideration in this connection. You start with, say, 3000 slaves of which this is one class. All that die before they arrive at the age of 21 are eliminated from the State's liability, you do not have to pay for them. All that run off within that time you do not have to pay for. You would unquestionably reduce the number from these sources more than one-half.
But there is another class to which the emancipation directed in the Congressional amendment is to apply. It is the slaves who will be over the age of 10 but under 21 on the 4th of July, 1863. They are to be liberated at the age of 25. Now, if a slave on that day is 21 years of age, he is to be liberated four years afterwards, on his reaching the age of 25. The compensation for this class then will stretch along beginning at four years after the 4th of July, 1863, and extending until 15 years after that date; and of this class, as of the other, all that die before they arrive at the age of 25 are not to be paid for, and all of this class who escape are not to be paid for.
Am I in error, then, in taking this position, that at the very outside, apply this principle of compensation to the amendment which is proposed to us by Congress, at the very outside you may have some 1500 negroes to pay for. And to pay for them you commence four years after July, 1863, and extend it on to 21 years after that date. You have 21 years after that date, without interest. No interest in this question. You pay for them as they are manumitted. The 1500 negroes - I beg pardon, 1500 slaves - (I have been down. at Richmond two or three times and may have become infected with the wrong term) - the 1500 slaves, I would not put upon them the price which the gentleman from Morgan does; because that would make them worth $1500; but I don't think it would be worth while for us to discuss that question. But suppose they are worth $300 apiece, you have $450,000 to pay in 21 years.
MR. TICHENELL. They only average $100 a head in our county.
MR. BROWN of Kanawha. The value of infant children at $300 is very excessive.
MR. LAMB. I was putting the very extreme case - the very highest price; I wanted to argue the question fairly. I am. very much inclined to think from the present state of the country, the estimate of the gentleman from Morgan is about right; and if a man gets rid of his slaves without anything to pay, he ought to be satisfied.
MR. WHEAT. What I stated is true; they have sold at that; sold at only half a dollar a head.
MR. LAMB. I am not disputing it at all.
Well, sir, if you put the extreme price, it amounts to about $21,000 a year.
Now, gentlemen, I want this understood in regard to this question, for I do not want it to go back to the people that if this motion is to be carried here the people are going to be taxed in the sum of millions to meet this obligation. As a pecuniary question, it is really an insignificant one. Put the slaves at $100 apiece and you have a little over $7000 a year to pay, and not a cent to pay for four years to come. I take it for granted, Mr. President, also that the passage of a resolution of this character - and there is no gentleman who can answer as to that question better than I can - that the passage of a resolution of this character by this Convention saying that they hold the new State bound to make compensation for the slaves which may be liberated under this Congressional provision, will have a vast influence in Washington city in securing to us a similar provision on that subject to what Congress are disposed to offer to other states. Congress may be very willing to say we will give nothing to the new State if the State have nothing to pay; but if the new State in consequence of the requisition which Congress has put upon it do hold themselves bound to pay for the negroes which they liberate, sir, we can appeal to Congress and say it is only just and right you should do so; you are bound by every consideration of fair dealing to do so.
I must confess, Mr. President, that I should regret as a public misfortune - a misfortune to the new State - that this resolution should be voted down. I want merely to add in regard to the calculations which I have submitted, I have omitted one material point. But it will show that the results I arrive at are entirely too large. We do not propose if any of these slaves are held by disloyal people to compensate them at all; and of course the number will be so much reduced and the amount of payment reduced to correspond.
MR. PINNELL. If it is desirable to take a vote, I will yield it. The question under consideration presents an enigma to my mind very difficult to understand. If we take the resolution from its inception to its development before this body for consideration, it appears to me the framers of the resolution have enveloped it in mystery and that mystery has seemed to call forth an opposition which I must confess in my own mind has been improperly construed. It has been a conceded point by the able gentlemen composing that committee that this resolution imposed no new obligation; that the grievance complained of and the justice exacted was provided by a former session of this Convention in every particular; that the 6th section of the II article provides, in accordance with the Constitution of the United States, that no private property shall be taken for public use without compensation. Other gentlemen, some of them of high legal position, whose opinion among their constituents at home I know is regarded as valid, have come forward here, sir, in the very next breath and introduced a resolution requiring this Convention to re-affirm what has been reduced in the organic law of the State to a fixed fact; and they seem by their advocacy of this measure to attach more importance to the validity of this resolution than they do to the clause contained in the second article of the Constitution.
Now, sir, I take it as a settled fact that the Constitution, the work of this Convention at a former sitting, was sent out to the people of the different counties of the proposed new State with this clause of compensation for emancipation in it. In every county where there was a vote taken the people ratified this constitution by a large vote. They did more, sir, for in addition to that they took a vote on what is known as the Battelle resolution, and as far as I notice the statistics of the returns of the election on that the people, with singular unanimity adopted the Battelle proposition, which is nearly identical with Congressional amendment.
MR. BROWN of Kanawha. I would inquire of the gentleman if that resolution touched the slave property at all?
MR. PINNELL. I will explain that when I get to it. The idea I wished to present is this. Here is a Constitution emanating from a Convention and submitted to the people containing a clause that private property taken for public use shall be compensated for. In addition to that there was placed before the people on the day of this election the Battelle resolution, introduced in the Convention, proposing to insert in the Constitution what was virtually this Congressional amendment. The people of my county voted on this Battelle resolution. There were seven hundred votes and only thirteen votes against this Battelle proposition. Did your county (addressing Mr. Brown of Kanawha) cast a majority for this Constitution?
MR. BROWN of Kanawha. Yes, sir; it did.
MR. PINNELL. As I expected. This Constitution, as ratified by the people, went up to Congress for its endorsement; and how was it received there? Congress found no objection to this instrument on the ground of constitutionality or expediency with the exception of the 7th section of article XI. And they proposed an amendment by endorsing, re-affirming the constitutional provision there that personal private property shall not be taken for public use without just compensation. This was a settled fact. That amendment virtually embodied the Battelle proposition which the Convention had refused to entertain or discuss. The Constitution presented to Congress was sent back with this amendment. The commissioners re-convened the Convention for what purpose, sir? To go over and reconsider this here in detail, to pass eulogies on the work of the Convention at its previous sitting; to say the members of this Convention did or did not do right in enacting the 6th section of the second article of this Constitution? No, verily. They were brought back here to perform a specific duty entrusted to us - at least I so understand it with regard to myself. What was that duty? We were sent here for the purpose of incorporating in this Constitution the amendment required to be made by the Senate's bill admitting West Virginia into the Union as one of the states. And what more? We were sent here to make arrangements to fix the earliest period possible for the vote of the people to be taken on the Constitution thus amended and provide for the soldiers to vote, and then return home. That was the duty assigned to each of us. It was to myself and I believe to the representatives of all the loyal constituencies of West Virginia. If we had kept ourselves within the land marks, the legitimate construction of representation, we would not have got into the melee in which we are found this evening. If I understand the true principle of representation, it is for the representative to act as his constituency would act for themselves if they were present to act. And if we had kept ourselves within those bounds and not drawn up resolutions looking to re-affirming and endorsing the action of the preceding sitting of the Convention, we might have finished our work, as confidently expected when I left home, on this evening and returned home. But, sir, here we are, and we are told by men who say they have suffered all for the new State - we are told by them, sir, this morning in attempting to get a vote on the resolution accepting the amendment, that they were not going to vote on that until they were assured the second proposition would pass. There must be a guaranty that the second proposition would pass when the gentleman from Wood county (Mr. Van Winkle) has told the Convention over and over again that the second resolution had nothing binding in it; was worth nothing in point of law, nothing in point of fact, but was simply the expression of an opinion that we wish to do right. I believe, sir, there is not a representative on this floor that would say he would put his hand into his neighbor's pocket and take out the price of a darkey without contributing to pay for it. We never so understood out in my county. I thank God I represent as loyal a constituency as ever the sun of heaven shown upon. We have passed through a fiery ordeal and we are pure on that subject. We want none of our neighbors' property without paying for it, and if we will just send this instrument back to our people with the amendment in it, the difficulty will be quickly settled so far as we are concerned, and then the legislature can pay for these negroes. I belong to that old school of politicians which always understood that the agitation of the slavery question endangered the institution; and I believe it involved our country in the condition in which it is now placed and which has engendered unpleasant feelings in this body.
MR. POMEROY. In order to test the views of the Convention, as well as my own feelings on the subject, as it is Saturday evening, I move to adjourn until ten o'clock on Monday morning.
The motion was agreed to, and the Convention adjourned.
Chapter Eleven: First Constitutional Convention of West Virginia
