text:
Prayer by Rev. Gideon Martin of the M. E. Church.
Journal read and approved.
MR. STEVENSON of Wood. Before the special order which was set apart for this morning, I would like to offer a resolution in reference to a standing hour of adjournment for the morning session.
THE PRESIDENT. The Chair understands the order is not printed and there will be some time for business, before it is called up.
MR. STEVENSON of Wood then offered the following:
"RESOLVED, That hereafter the standing hour of adjournment shall be at half past 12 o'clock until otherwise ordered."
MR. STEVENSON of Wood. My reason for offering that is this: After this time I think we are likely to have a good deal of discussion, and it will prevent interference with the proceedings by motions to adjourn by having an hour set apart for that purpose. If the Convention see fit to adjourn before that, it can be done on a motion; but to extend the time, it can only be done by general consent.
MR. BROWN of Kanawha. There are several members of this body who are members of the legislature and that body has fixed the hour for their sittings at 2 o'clock for the very purpose of accommodating those who are members of this body. The arrangement would defeat that very object. It is desirable that we should make our sittings so that we can all attend as far as possible.
MR. STEVENSON of Wood. At the suggestion of the gentleman from Ohio I will alter the phraseology of the resolution so as to read:
"RESOLVED, That hereafter the Convention will take a recess from half-past twelve o'clock until half-past two o'clock P. M."
MR. BROWN of Kanawha. Mr. President, I will amend that proposition by insteading ten o'clock instead of the present hour of meeting so as to give more time in the forenoon.
THE PRESIDENT. The proposition now before the house is half-past twelve o'clock till half-past two. What is the amendment?
MR. BROWN of Kanawha. My amendment is that the hour of meeting shall be ten o'clock instead of the present hour.
THE PRESIDENT. The proposition now before the house is not to appoint an hour of meeting but the hour of recess and meeting after recess.
MR. STEVENSON of Wood. The gentleman from Kanawha can accomplish this object by a separate resolution after this is done.
MR. LAMB. I doubt, Mr. President, whether the proposition to meet early would expedite the business. It would cut off the possibility of the committees acting effectively in the morning session. The present hour allows the committees, to meet and remain in session two or three hours. They can meet in the evening adjournment, and they have time allowed them in the morning to consider the subjects before them.
MR. BROWN of Kanawha. It would be a proper time of meeting at nine in the morning and let the committees meet in the afternoon. My whole object is to so arrange the sittings of the two bodies that members who are members of both can attend to the duties of both.
THE PRESIDENT. The hour for meeting in the morning has been provided for by a resolution passed some days ago. Your object would be to amend that resolution so as to change it?
MR. BROWN of Kanawha. If we could meet at nine I do not think there would be any necessity to meet in the afternoon because that time could be appropriated to the action of the committees.
MR. CALDWELL. I think, sir, the hour of meeting in the morning in order to give an opportunity to the committees to meet previous to the session is better than the time suggested by the gentleman from Kanawha, and for this reason: the object is to expedite business and if the committees meet in the morning and be enabled to make a report at eleven o'clock during the morning session, that report can be laid on the table and be printed so that it may be taken up and acted on the succeeding day; while if they do not meet until afternoon it would defer the business until another succeeding day. I think generally the opportunity is given for the committees to act in the morning and let them lay their action before the Convention, so that in case of urgency or necessity the action of the committee is before the Convention sooner than in the other case it could be had. I am satisfied the present arrangement, meeting at eleven o'clock, with the sessions of the committees in the morning, is better than any yet suggested. I will oppose, sir, any change.
MR. BROWN of Kanawha. I would suggest to the gentleman this consideration; whether instead of meeting in the afternoon at all, it would not be better to meet earlier in the morning and appropriate all the afternoon to the committees. Then the legislature could sit in the afternoon and give the morning to its committees. There is no small inconvenience in our meeting in the forenoon, adjourning to dinner and then meeting again. I think we can accomplish more by one session a day and the balance appropriated to the committees, as, by meeting here, going to dinner and then coming back again. My object is not at all to delay the body or accommodate myself only to have the action of the body adopted as far as possible to that of another. That would avoid the difficulty suggested by the gentleman and I think accomplish everything I propose to attain.
MR. STUART of Doddridge. It does seem to me, sir, the motion looks to an excessive labor on the part of the members of this body. This thing of meeting in committee in the morning, assembling here at eleven, running home to get your dinner, and assembling here again is, I think, most excessively laborious. I would move by saying a recess to be taken until half-past three. I think we are poorly qualified to come in here immediately after our dinners. It does not suit myself; I do not know how it is with the rest. But that will accommodate some members who belong to the legislature. I understand they have made their sessions to commence at two o'clock to accommodate certain members of this body. Now certainly we should have the courtesy to extend the same indulgence to their members who compose a part of this body. Now, sir, I presume an hour and a half of a session will accommodate the members of this body who are members of that for some time to come. That would be imposing great labor, it is true, but we are willing to endure it.
I suggest, sir, the gentleman's motion be amended, to take a recess until half after three.
The amendment was adopted, as was the amended resolution.
MR. LAMB. Mr. President, I move the postponement of the order, which is the report of the Committee on Boundary, until the afternoon session, with the hope that we will then have the document before us, as it has not been returned printed.
The motion was agreed to.
MR. DILLE offered the following proposition:
"1. The counties of this State shall be divided into townships as nearly equal in territory, and in the number of electors qualified to vote for members of the legislature, resident therein, in each of which shall be elected by the voters therein on justices of the peace, an overseer of the poor, one surveyor of roads, and one constable, who shall reside in the township during their term of office, and continue in office for two years, provided no county shall contain less than nor more than townships.
"2. There shall be elected for each county, by the qualified voters residing therein a register, sheriff, surveyor, and county commissioner, who shall, at the time of their election, reside in the county, and during their term of office shall not remove therefrom, and shall hold their offices as follows: The registrar for the term of six years; the sheriff for the term of four years, and shall not be re-eligible until the expiration of a full term after that for which he was elected; the county surveyor for the term of four years; and the commissioner of the revenue for the term of two years.
"3. The justices of the peace of the respective townships of each county, shall meet at the court house of their county, on the first Monday in June of each year, to audit and settle all claims against the county, lay the county levy, and transact such other county business as shall be authorized by law, and the register of the county shall keep a record of the proceedings of the said justices of the peace.
"4. Justices of the peace shall hear and determine all matters in assumpsit, debt, detinue and trover against all persons residing in their respective townships, wherein the demand, or subject in controversy, exclusive of interest, shall not exceed in value dollars. They shall exercise all such criminal jurisdiction against all persona residing within the county as may from time to time be required by them by law, or authorized by this Constitution.
"4. The jurisdiction, duties and compensation of the register, sheriff, surveyor, commissioner of the revenue, justices of the peace, overseers of the poor, surveyor of roads, and constables, except so far as the same is conferred by this Constitution, shall be regulated by law.
"5. Each of the officers mentioned in the first and second sections of this article, shall continue in office until their successors shall have been qualified.
"6. Vacancies occurring by death, resignation, removal or otherwise, in any of the offices mentioned in this article, shall be filled by elections held by the voters of the county or townships in such manner as shall be prescribed by law.
"7. The offices of coroner and escheater in the several counties, shall devolve upon one of the justices of the peace, who shall be elected by the votes of a majority of the votes of the justices of the peace of the county, at their June meeting in each year, under such rules and regulations, with such powers and compensation as shall be prescribed by law.
"8. The circuit court of each county of this State, at its first session after this Constitution shall go into operation, shall appoint three discreet commissioners, (one of whom shall be the surveyor of the county) whose duty it shall be, to divide the county into townships and number the same, under the first section of this article, and return a plot of such division to the register, to be by him recorded. Until such divisions shall have been made, the existing divisions shall be the townships of the county."
MR. O'BRIEN, the following:
"There shall be established in every county a court to be called the county court, for which a presiding officer shall be elected, who shall be called a county judge. His qualifications shall be the same as that of a lawyer admitted to practice law in the circuit court. He shall have appellate jurisdiction and shall try all cases, whether civil or criminal, that may arise in his court. He shall have monthly courts, four of which shall be grand jury courts; at each of which he shall show plainly to the jury the law, and point out their duty. He shall hold his office for four years, and receive a salary prescribed by law. He may be indicted and tried for malfeasance, misfeasance or gross neglect of official duty, in the circuit court. His punishment and penalties shall be prescribed by law."
MR. BROWN of Preston, the following:
"RESOLVED, That the Committee on the Legislative Department inquire into the expediency of requiring the legislature to provide by general laws, for the creation of corporations, within the State."
MR. SOPER, the following:
"RESOLVED, That it be referred to the Committee on the Judiciary, to inquire into the expediency of electing a county or probate judge in each of the counties of this State, with jurisdiction in cases for the proof of wills, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians - in cases from justices' courts - in criminal cases of less degree than felony, and in such other matters of law and equity, as the legislature might deem safe, convenient and cheap to the parties interested. The judge to be paid out of the county treasury, by a salary, or by fees paid by the parties, or by both salary and fees."
MR. POMEROY. I move we proceed with the consideration of the section before us when we adjourned last night. The vote has not yet been taken on it, but on the amendments offered.
MR. VAN WINKLE. I would move that we take up the report of the Committee on Fundamental Provisions.
MR. POMEROY. I will accept the suggestion.
The motion to take up was agreed to.
MR. LAMB. Mr. President, I move the adoption of the sixth section.
MR. DILLE. I desire to submit an addition to the sixth section, or an amendment rather. It is in the shape of an addition. I move to amend by striking out all after the word "offer" in the seventh line, and inserting the following: "or who has not within two years paid a State or county tax, which shall have been assessed at least thirty days before the election, shall enjoy the right of an elector, provided, that white freemen, citizens of the United States, between the ages of 21 and 22, and having resided in the State one year and in the county thirty days, shall be entitled to vote, although they shall not have paid taxes.
This proposition, I think is an important one taking into consideration the action of the Convention upon yesterday, giving, as I thought, a very extended suffrage. I think, really, that parties who desire to wield the elective franchise should manifest some degree of interest in the affairs of their county and State; and I think no better way can be found, at least in these times, to manifest that interest than in the way of paying their taxes.
MR. VAN WINKLE. I should like the resolution to be reported from the clerk's table.
The Secretary reported it.
MR. VAN WINKLE. There are so many limitations and provisions about a simple proposition. I am not sure I understand it distinctly; but I move to amend that by inserting before the words "before the election" the words "and done one day's work on the public roads."
Now, sir, if the right of suffrage in this new State is to be bought and sold for money, I think working on the roads is much more meritorious. As I understand it, sir, we are in want of good roads, throughout this part of the Commonwealth, as it is now. It is very desirable that we should have them, and if these things are to buy the right of suffrage, I propose we barter it for good roads rather than enabling the sheriffs to do their duty. I think, sir, if we do consider the right of suffrage anything it is a great right, and one that is not to be bought nor sold for money nor for services. It involves a principle that lies at the very foundation of all government. But by the terms of this amendment, citizenship is circumscribed by the non-payment of twelve and a half cents taxes, and unless he has paid it that man who is a citizen and has the same rights in a community as the one who has paid it is denied the exercise of the franchise. Now, as for the payment of a petty tax being an evidence of attachment to the State, or of a capacity to know how to vote, or that he will exercise the right of suffrage with judgment and discretion, I am utterly unable to see it, and I am opposed and always have been and always shall be, to connect with the exercise of any of these sacred rights - any of these fundamental rights lying at the very foundation of every political community - and such two-penny consideration as whether he has paid a tax or not. It belittles it; it degrades the right of suffrage.
Sir, if the sheriffs do not do their duty, let the legislature see to it, and impose proper penalties upon the sheriff. Let them make him accountable himself for the tax and I warrant there is no need of this provision.
I remember how it was in old times when I believe the tax was twelve and one half cents. The sheriffs never attempted to collect it at all. He came to the polls and he actually did make use of the exercise of this right as the means of collecting this petty tax.
And, sir, if we are to withhold the right of suffrage for every petty occasion, I say that working the roads is much more important. There is a great deal more difficulty in getting people to turn out to work the roads than in getting them to pay taxes. You have not the same means or compulsion as for the tax. You can seize their property, but for working the roads it seems you cannot get it done.
Now, sir, I of course do not mean that this amendment of mine ought to be adopted. But this is just as worthy as that.
Sir, I would not disfranchise any man except for grave crimes and misdemeanors, and the only thing that does disfranchise a man is being under conviction of felony or treason. And the gentleman wants to put the non-payment of a petty tax on the same footing! Another thing that forever disqualifies a man as reported here, is that he shall have been proved guilty of bribery in an election. And the gentleman wants to put this in competition with such a grave crime! He wants to put the citizen who is perhaps unable to pay his tax in the same situation precisely as the report puts the man convicted of felony or guilty of bribery in an election. The next thing, sir, we will begin to discriminate and we will get back to the "fleshpots." We will have it, sir, that a man who does not pay taxes shall not be represented. And then we will easily - very easily - get back to the old basis of taxation as the foundation of representation. Why, sir, do you know how much a man was worth under the old Constitution? Not so much as a negro, sir. In the year '50, according to the lists of that year, five hundred and thirty-two dollars of property was the basis of representation; that is to say that there were as many votes cast for five hundred and thirty-two dollars' worth of property as there were for individuals, or the tax on that amount of property had as much weight in this community as a white man. Now, sir, that is where we are coming back to, when we attempt to use this right of suffrage as an instrument for anything except withholding it from those who have committed grave crimes. We are treating that right as though it were one of the smallest provisions ever passed by simple act of a legislature. Why, sir, you do not punish a misdemeanor anything less than a felony with disfranchisement; and yet for the non-payment of a tax of twelve and one-half cents you are about to inflict, so far as the Constitution is concerned, the same punishment as you do for felony, or bribery in an election, or treason. The whole thing to my mind is preposterous. Where is the necessity for it? What evidence is there if he pays his taxes that he is any more fit to vote than if he does not? I can see nothing that ought to weigh with this Convention one moment. We are met here, sir, I think, for the purpose of making a change in the institutions of this State - for the purpose of extending what has never yet been extended entirely through this State, the principle that the citizens of the State are the State. The government is not the State; the people are the State; and, sir, if a man who is a component part of the State is entitled by that principle to this right of suffrage and representation, I would ask whether you do not belittle these great rights - whether you do not diminish their importance - whether you do not degrade them, as it were in the estimation of everybody when you to make their honest exercise to be tested by the small question of whether a man has paid a two-penny tax. I ask the Convention to consider this as a matter of principle. It may be a very convenient way to force people to pay taxes, and it might be convenient to force many other things by denying man his great rights under the Constitution; but how would it look in the eyes of the world? Would it be said we were making progress in free government, extending the application of those principles our ancestors have left us? No, sir, it would be said we were going backwards, retrograding, taking the back track entirely. Let me tell you what existed once in this State. Under the old constitution, sir, (and even under this one we are about to make, if this clause is inserted) this anomalous state of things would arise; here is a gentleman, it might be myself who not having paid his twelve and a half cents of tax is disfranchised; and yet, sir, that very man under the Constitution of the United States is entirely competent to be a representative in Congress. Aye, sir; and that thing existed constantly under the old Constitution. There were men there who were not allowed the right of voting at all, and yet every one of them had all the qualifications to make them competent as representatives in the House of Representatives of the United States. Now how does it sound ? Take that United States Constitution made with more care, more care than any that have been made since - when principles were everything - when we had just come out of that War of Independence, in which we fought for principle - take it from end to end and adopt your Constitution to that, and I will venture to say you will not go astray in a single particular.
Yes, sir, a representative in the Congress of the United States requires no other qualification but a certain age and residence for citizenship; and yet, sir, a man who is declared by the Constitution of the United States competent to represent a district of your State in that body is not to be allowed to vote in the State of West Virginia for our own officers. Now, sir, it is preposterous; and I trust this Convention will show by their votes on this occasion that they have a much higher regard for principle than for enabling sheriffs to collect their taxes. That is all it means - to enable sheriffs to collect their taxes; and if they do their duty the taxes will be collected anyhow. I would have no objection, if it is worth while to say that a man should be assessed for taxes; but we know under the laws every man will be. But because if a man is assessed for taxes, and from some unforseen circumstance - it may be misfortune of some kind - bad crops - or on some other account - is unable to pay his tax, because he is not able to pay a small sum, this great right of suffrage - this great right of voting for the representatives of his choice, is to be denied him. Sir, just take the Crown tax, the smallest that is laid here, say one dollar if you please, just raising it seven hundred percent from twelve and a half cents, and then we have got the value of the right of suffrage in the new State. Now, is not this so? If you say a man shall not exercise the right of suffrage without having paid one dollar, you certainly fix that as the price of suffrage.
Now, sir, I make these remarks to show that there is a principle in this thing; and that it ought not to be tampered with except on the gravest consideration. If you propose a perpetual disfranchisement of a citizen, it might be done in punishment of crime if you choose. It might be a man convicted of felony should be forever deprived of his right but he could not be so far as that. If a man is, as it were, abandoned by the crime let him be deprived, but for nothing else except for some disability of Providence. A deaf or insane person should not, of course, be allowed to vote. A pauper is also deprived because he is in a dependent position; but a pauper does not mean in that sense a poor person, but one that is in the actual care of the overseers of the poor.
I hope that you gentlemen will consider that this is a question of principle and vote accordingly.
MR. STUART of Doddridge. Mr. President -
MR. VAN WINKLE. I withdraw my amendment, sir.
MR. STUART of Doddridge. I would like to insert another condition that those so deprived of a vote should not be required to bear arms to defend their country. If this amendment prevails, sir, it will operate against that class of our community, of all others the most entitled to our sympathy. It is true, sir, there may be persons who refuse to pay their tax who should do it; but if you make this condition they will always do it while you will deprive the poor men who really cannot pay his tax of the exercise of that right - the man who has a family to support and really is unable to pay his taxes. I have heard this thing prated before, that a man who did not pay his revenue ought not to be permitted to vote. The persons who were disposed to do a thing of this kind - and I have seen it done often - would just go around and find out who had not paid their revenue, and when they would come to the polls he would be there with money in his pockets and he would tell them, I will pay your taxes and you vote as I want you to. I do not want to insert anything in this Constitution that will hold out such inducements of this kind. I want every man of sound mind and competent age and residence to have the right of suffrage.
MR. CALDWELL. I am free to say, sir, I felt disposed to favor the amendment of the gentleman from Preston, chiefly, however, on this ground. And I believe my friend from Wood will remember that the times now are not as they were in the formation of the present Constitution of Virginia. They are troublesome times upon us, sir; there is rebellion in our midst, sir; we have rebels all over this land, not confined to the city of Wheeling or the county which I have the honor in part to represent, but, sir, spread all over all the counties proposed to be organized into this new State. Now, sir, I say, sir, that I was inclined to further this amendment for this simple reason; that these rebels in our midst, without a provision of this kind have the privilege of coming up to the polls and voting for the officers in the organization of this government with just the same liberty and freedom that the best Union men in the State would have. I am inclined to favor the amendment, sir, for the reason that I do not wish to see a rebel cast his vote in this government unless he gives some assurance that he is willing to give it a support; and I think will be best tested by requiring him to pay his tax.
MR. VAN WINKLE. Will the gentleman allow me to call his attention to the tenth section, where it is provided that "every citizen of this State may in time of war, insurrection or danger be required by law to make the like oath or affirmation" - that is "that he will support the Constitution of the United State and the Constitution of this State - upon pain of suspension of his right of voting and holding office under this Constitution?" Now, sir, there is a case where the penalty should be very properly inflicted; not for the non-payment of one dollar.
MR. CALDWELL. I had thought, sir, of offering an amendment to restrict the right of suffrage to Union men, that is to say, sir, to go so far as my friend from Cabell, that no one in actual rebellion - no one charged with treason - should have the right of suffrage. And it is, sir, for this reason. Now, sir, in my own county - in several counties that I think I could name - where the secession element prevails, what will be the result in the formation of the new State in those counties. Why, sir, where that element prevails, the secessionists will over-ride the Union party. They may go to the polls - and will undoubtedly - and elect officers, while the result will be that those persons so elected will refuse to qualify; and thus the organization in those counties will be defeated. Now, sir, I am satisfied and I fear very much, that in several counties of this State that will be the result, and therefore, I say, it was that I favored the proposition of the gentleman from Cabell.
But, sir, if it can be reached under this tenth section by requiring every citizen to take this oath - because I am satisfied that although many of us have got tired of this oath being administered to us so frequently, but still I have some confidence in Virginians, and I would be satisfied if the citizens of this State - those who are to compose the State of West Virginia shall be required under this tenth section to take the oath of allegiance to that State, for then my object would be attained.
I am free to say, sir, that I do not wish a poor man to be deprived of the right of suffrage; although I have seen it from year to year, at every election, in my county, that those who do not pay their taxes, who are at the defiance of the sheriff are more noisy and give more "to-do", sir, on election day than any others. I discover, sir, they are the class of people who assemble at the different places previous to the day of election, and on the day of election, sir, they are there in their "sovereign" capacity with the same right of a quiet and peaceable man who pays his taxes - who come up to the polls and vote under the privilege given them, yet are at the same time at the defiance of the sheriff. I do not understand this provision is at all intended to enable the sheriff to collect his taxes but, sir, it would require these individuals who seem to take as much interest in the elective franchise as other parties, to say to them, you must show some attachment to your Constitution and to your laws by doing what others have done, that is to say, the payment of taxes.
Now, sir, men with money in their pockets but with no visible property - how is the sheriff to get at them and require them to pay? If they have nothing the sheriff can levy upon, what taxes can be made? They are at the defiance of the sheriff. It is for this, sir, that I think it just every voter should be required to pay his taxes previous to having the privilege of exercising the right of suffrage; and my main object was to keep out this secession party now in our country. If it is to be reached in the tenth section I will be content.
MR. BROWN of Kanawha. I wish to make one remark before the question is submitted. I understand, sir, that our rights are not given us by the Constitution, but that our rights as citizens exist under the law of nature; that the simple fact of being residents in the community, assembled for a common purpose as a state for his protection secures to a man the right of suffrage; and that the Constitution properly is only a limitation on that right; that I do not derive the right from the Constitution but the Constitution derives its obligation from me; and that the power of the many in the Constitution may restrict the rights of the few for the general good. And, sir, adopting that fundamental principle, the question then arises how far will you undertake to restrain and take from the individual the rights which they have been irrespective of that Constitution and above it, without a sufficient reason? The question then comes up here in that limitation proposed in this Constitution upon the citizens right to exercise that fundamental element of free government, whether the reasons offered are sufficient in this case to justify us in this Constitution to restrain our fellow-citizens who may be in the category supposed. If there is any reason for taking away the right of suffrage from an individual simply because he has failed or was unable to pay his revenue he may be assessed with, for the time being, or proscribe him for that simple delinquency, why not other or greater delinquency be also sufficient? Why, as it seems to me, it enters at once into the inquiry of what delinquencies a man is guilty of, and whether they are not such as. ought to deprive him of the right, and that this must be a question on the day of election before he shall exercise it, whether he is entitled to or not under the law. Your Government is for controlling the citizens and requiring or compelling him to discharge the duties of the citizen as prescribed by the laws; and your officers are paid for making them perform that duty. The sheriff's duty is to collect the revenues, and if he attends to his duty, the citizen will do his; but if the sheriff fails to do his duty it is wrong to deprive the citizen of his right because of the failure. It may be said that there are some instances in which the sheriff cannot accomplish the end. Well, sir, there will be failures in every government instituted by human beings; from the very law of our nature there will be delinquencies; and therefore it is not right that you shall strike out one of the fundamental rights on which the whole institution of government rests.
Treating this, then, sir, as a question of principle, I find myself constrained to vote against the amendment. But there are reasons of policy that would induce us to vote it down. While I admit that there are evils arising from the fact that a large number of people in any community will be non-taxpayers although properly assessed, and that they will go up and exercise the right of suffrage, and that this is an element that may be improperly used in the community - yet the question is whether you do not increase the evil by depriving them of it.
Now, sir, admit that the payment of tax is to be the condition of voting - and this will be the case if this amendment is made - and a hundred individuals come to the polls, and it is ascertained by some candidate that a hundred votes will be necessary to secure his election, and he is a man of more than ordinary means and these men are from the very circumstance of their being unable to pay their tax, poor men, and whose morals by the hypothesis are so very loose that you are now willing to exclude them - for this is to be the code of their morals, that they are unable to pay - that the poor man is so corrupt in his morals that he will prostitute the vote and therefore should be excluded - do you not see that the wealthy candidate if he chance to be an unscrupulous man will pay these men's taxes if they will vote for him, and thus in reality buy their votes for the amount of their taxes? It is true you have saved the sheriff the trouble of collecting the taxes, but it is prostituting the franchise of an elective officer. We have seen this thing under the old order of things when it was requisite the voter should have been assessed and have paid his tax before voting; a large number had their taxes paid on the day of election by the friends of the candidates who did not stand on a few dollars to secure an election. Well now, sir, when you adopt the same rule the same evil will follow; for we are no better than we were then. I think therefore while the object of this amendment is to purify the ballot box or right of suffrage, it fails to accomplish that end and while it violates a great principle; and failing in both, it is the more proper we should vote it down.
MR. WILLEY. The third section of this report, already adopted declares that "the powers of government reside in all the citizens of the State, and can be rightfully exercised on in accordance with their will and appointment."
Whilst I appreciate fully the purpose contemplated in this amendment I am upon reflection forced to think if the restriction is an injury on the fundamental rights of the citizen, it is in conflict virtually if not strictly with this fundamental principle which we have already recognized and adopted. Now, sir, it seems to me the act of a default in payment of taxes is predicated upon the fact that he is absolutely unable to pay them. The sheriff may properly say, we return delinquent only when in point of fact he is unable to pay his taxes; nevertheless, sir, he may be subject to the requisitions of the Government; he will be required to work on the roads; he will be required to carry arms; he will be required to defend with his life and person and property the existence and interests of the government under which he lives, which perhaps is the highest duty that devolves on the citizen. Every man acknowledges the obligation. The brave boys who are now standing up for their rights in the Union are in the majority of instances composed of that class of our population which would be made subjects of this restriction if the amendment should be adopted. I cannot conceive that there is any necessary or logical connection between the payment of taxes and the exercise of this fundamental right; and it seems to me there should be a fundamental change in the exercise of it before citizens should be thus deprived. Now the mere inability to pay taxes - for that is what is contemplated, nothing more - is not an objection, a sufficient objection, to prevent the exercise of this great primary fundamental right, lying as the very foundation stone of free and republican institutions.
MR. DILLE. In presenting this proposition or amendment, to the Convention, I had no idea that I was violating any fundamental principle of government, or any provision that has been passed upon by this Convention previous to this time. The third section to which the gentleman has just referred, that the power of the government resided in all the citizens of the State, has already as I understand it been violated by the provision before us as it now stands. Because, according to this section there are several classes of persons excluded already from the right of suffrage, and in violation of the provisions found in the third section. A party convicted of treason against his government is deprived of it. Why? Because he has committed an act against his government that renders him unworthy of exercising this invaluable right. A party who is convicted of a felony, is deprived of it; and yet he remains a citizen of the State. A party who has been convicted of bribery in an election continues a citizen of the State; and yet for reasons, and for sound and logical reasons, he is deprived of the right of wielding the elective franchise.
And I hold further than this that there ought to be other restrictions in addition to these. I might go further and say the citizen who has not resided within the State for twelve months and in the county, according to our amendment, one month, he is deprived of the right of voting. Now I hold that we ought to go further upon this point and that we ought to deprive a man from voting who contributes nothing in material support for the government. Governments are instituted by us not only for the protection of our property, but our lives and everything we hold dear; and to keep up these governments it requires money. Without it we cannot have a successful government. Now I hold that the man who does not make his arrangements in such way as to be able to contribute something towards the support of that State, or that county, government that gives him everything he holds dear - if he makes no arrangement whatever to contribute a small amount, whatever, it may be, towards the support of that government, I hold that he is not of that class of citizens in our midst that ought to wield the elective franchise, and dispose of my rights and dispose of my labors and my property. I hold that it is a violation of a fundamental principle, an indispensable principle, in government. Why, how does it work out? Suppose that one fourth of the legal voters of each county refuse to pay their taxes; although they may have the dollars in their pockets, although they may have money at their command; yet from causes which may arise, as for instance, a rebellion, they may refuse to contribute one dollar from their funds to support a provisional government or any government that may be instituted for the protection of the loyal citizens, and say, I am at your defiance - I have the money in my pocket - I have the means wherewith I could pay that - yet, I am unwilling to contribute towards the support of that government. What is the effect? Why, here in each county you may find five hundred men against whom taxes have been assessed who have the money in their pockets to pay these taxes, and yet refuse to pay one dollar.
Upon the matter in regard to those who may be engaged in the service of the United States, who may be fighting the battles of our country, I have one word to say. I feel as kindly towards them, as warmly and as deeply interested in their welfare as any gentleman in this Convention, and I will do as much for them and contribute as much as any other man, yet I am unwilling that they should control my life, my liberty, my property, when they contribute nothing towards the means of keeping up county expenses or State expenses.
Now so far as the matter in regard to the sheriff is concerned, I care nothing about that. I care nothing. I offer not this proposition because I wish to aid the sheriffs in collecting the revenues of their county. They have a duty to discharge. They discharge that duty as faithfully as they can and as they are required by law to discharge it. But I hold that so far as that is concerned - so far as this proposition is concerned, it is not for the purpose of aiding them; but it is to reach a class of men that cannot be reached through any powers that can be conferred upon a sheriff.
Now I do not say in my proposition at all that they must pay five dollars or that they must pay ten dollars; but they must pay something into the county treasury towards paying some portion of the county expense, or they shall pay something into the State treasury by which they shall bear a proportion of the State taxes. I do not look at them as paupers. I do not look upon them as men who are unable to pay; because I hold that any able-bodied man in the State of Virginia, who is not a pauper, can by industry and proper application to his business contribute something towards the support of his government.
Mr. President, I feel somewhat deeply interested in this proposition. I have been traveling over the hills of West Virginia for several years. I have noticed the delinquent lists in the different counties during probably fifteen or eighteen years; and I have been acquainted with a great many of those individuals who have been turned delinquent; and I know a great many of them that yet have the dimes at any time to go to a tavern upon an election day and treat to bring about a certain result desired in the election. They have money to do that, but they are delinquent so far as the State and county treasury is concerned. And I wish to check this thing. I wish to bring about a different state of things. I wish not that I may aid the sheriffs; I wish not to deprive any poor man but I wish to deprive that class of men from voting who manifest no attachment to or interest in their government and hence I have introduced this proposition.
MR. HAYMOND. Mr. President, I understand the gentleman from Marshall to say that those who are in rebellion should not have a vote unless they paid so much tax before the election. To obviate the necessity of the objection of the gentleman, I would ask him if it would not be better to make them all Union men before they have the right to vote?
Sir, it has ever been my opinion, and is at this time, that no man should have a vote in this government unless he is willing to follow the flag of his country; that flag, sir, that waves over you in this house.
Sir, it is the same flag with which your Washington led your armies through the Revolutionary War, and fought and won the liberties of this country; and, sir, it is the same flag - the same stars and stripes under which your Scott, the great captain of the world, led your armies to Lundy's Lane, and there fought and conquered the British lion on his own soil; it is the same flag with which your Taylor led his noble little band of soldiers to Buena Vista, and there fought and conquered Santa Anna with his legions; and, sir, it is also the same flag that your Scott planted on the Capitol of the Mexican empire, and by the gods, it is the same flag - the same stars and stripes under which your McClellan and Kelley shall march your armies to Richmond, and there immortalize themselves by pulling down the rattlesnake flag from the Capitol of the Old Dominion, and plant there the glorious stars and stripes. Sir, when that day comes I would like to be by their sides; it will be a day of the downfall of would-be tyrants; and the rising of civil liberty on high to bid defiance to the world.
Sir, my country is on fire - our America is on fire, from the blaze of cannon. May the last torch-lighter be speedily laid in the ditch.
Gentlemen, I am opposed to the amendment.
MR. DERING. I would ask that the amendment be reported again so that I may vote understandingly.
The Secretary reported it.
MR. BRUMFIELD. I call for the yeas and nays.
They were ordered.
MR. BROWN of Kanawha. I desire to offer an amendment to the amendment. It says "the citizens" shall vote. In language affecting any voting in State elections, it seems to me we ought to be providing for the citizens of the State. It is true we have provided in the fourth section that citizens of the State are citizens of the United States; but in providing now in a section for the voting in a State election, it seems to me that it should be "citizens of the State" voting.
MR. DILLE. Yes, sir; I accept the amendment.
The vote was then taken and resulted.
YEAS - Messrs. John Hall (President), Brown of Preston, Caldwell, Carskadon, Dering, Dille, Dolly, E. B. Hall, Harrison, Irvine, Montague, Parsons, Parker, Paxton, Pomeroy, Ruffner, Simmons, Walker - 18. NAYS - Messrs. Brown of Kanawha, Brooke, Brumfield, Battelle, Chapman, Cassady, Hansley, Haymond, Hubbs, Hervey, Hagar, Lamb, Lauck, Mahon, O'Brien, Powell, Sinsel, Stevenson of Wood, B. F. Stewart, Sheets, Soper, C. J. Stuart, Taylor, Trainer, Van Winkle, Willey, Warder, Wilson - 28.
So the amendment was rejected.
MR. VAN WINKLE. I move that the section be now adopted.
MR. HALL of Marion. Before the motion is put I wish to offer an amendment. I hesitated a little about it. I have not been in the Convention for two or three days and am not exactly aware of what has been offered and considered; but I will propose it, however, and if it has not been considered by the Convention, it may be; that is to say, amend the fourth line of the sixth section so as that it shall read: "or who has been. convicted of treason or is under conviction of felony". If I understand the -
THE PRESIDENT. The Chair would remark to the gentleman that the hour for adjournment has arrived and it will perhaps take some time to discuss the proposition.
So the Convention took a recess.
The President laid before the Convention the following:
Wheeling, December 4,1861
To the President of the Convention:
Sir: In response to the call of the Convention, requesting a statement of the public debt of the State on the first day of June, 1861, I have the honor to transmit to the Convention a statement showing the State debt up to the first day of April, 1861.
The actual outstanding public debt of the State, as shown by the Biennial Report of the Auditor of Public Accounts, on the first day of December, 1860, was ................................................................................. $31,452,159.63 Appropriations by the Legislature since the first day of December, 1861, as follows: To the Covington and Ohio Railroad, February 29th, 1860 ................................................................................. 2,500,000.00 Richmond and Danville Railroad, February 10th, 1860 .......................................................................... 350,000.00 Alexandria, Loudoun and Hampshire Railroad, February 9th, 1860 ............................................................. Manassas Gap Railroad, February 10, 1860.......... Virginia Central Railroad, February 9, 1860 .................. Norfolk and Petersburg Railroad, March 2, 1861 .. Survey for Railroad from Grafton to White Sulphur Springs March 3, 1860 ..................................................... James River and Kanawha Canal Company, March 23, 1860 ......................................................................... Kanawha River Company, March 8, 1860 .................. Monongahela Navigation Company, February 9, 1860 .............................................................................................. Ravenna River Improvement, February 9, 1860 ...... Kempsville Canal Company, March 26, 1860 ................ Little Kanawha Navigation Company, February 8, 1860 ...................................................................................................... For the purpose and manufacturing of arms and munitions of War, January 21, 1860 ................... Appropriations for turnpikes during the same Session, in the aggregate .................................................. Appropriation in February, 1861, to purchase arms for the defense of the State, as the Legislature was pleased to call it ........................................ 1,000,000.00 600,000.00 350,000.00 600,000.00 300,000.00 4,000.00 200,000.00 300,000.00 54,000.00 60,000.00 18,000.00 15,000.00 500,000.00 166,800.00
Making an aggregate of ......................................................$ 38,469,959.63
The above statement may be relied upon as a part of the State debt due on the first day of June last, as requested to be furnished to the Convention. How much more there may be the Auditor has no means of knowing; but the Convention can form their own estimates of the debt since that time by the spirit of rebellion that has pervaded the eastern section of the State since the 1st day of April last.
Auditor of Public Accounts.
MR. WILLEY. I move that it be laid on the table and printed for the use of the Convention.
The motion was agreed to.
The President also laid before the Convention the following:
To the Honorable, the President and members of the Virginia Convention, now sitting in Wheeling.
The undersigned, the commissioner trustees, and principal of the Fifth Ward Public School of this city, having seen with pleasure the movements that have recently been made in your honorable body with a view to the adoption, of a general system of public schools in the proposed new State of West Virginia, thinking it might in some degree facilitate the object in view, would respectfully and cordially invite you either as a body or by committee, to visit our school in the fifth ward of this city, working under a general law by no means perfect, and under other disadvantages which can only be removed by the operation of time.
We cannot, of course, claim for our school anything like the perfection which pertains to those of some other States; yet under all the circumstances we may be allowed to indulge the belief that we would bear a favorable comparison with the schools in most of the western cities which have been in operation a longer time and under much greater advantages than our own. Of this however, we would leave you to judge, our object in the present communication being merely to offer you such facilities as are within our reach for the purpose of enabling you to accomplish more effectually the great educational purposes indicated by recent movements in your body. With this view we would cordially repeat our invitation to favor our school in the fifth ward with a visit from your honorable body.
With Great Respect
We are, Gentlemen
Your Obedient Servants
Mathew Reed, Commissioner
Robert Pratt, Lorenzo Wait, John Goudy, Trustees
James H. McMechen, Principal.
MR. STEVENSON of Wood. I move that the communication be received, and printed; and that the invitation of these gentlemen be accepted.
MR. WILLEY. I would inquire whether it is necessary to print the document. I move to amend by laying it on the table and directing the Secretary to reply to these gentlemen that we accept the invitation with pleasure and will avail ourselves of opportunities to visit their school.
MR. STEVENSON of Wood. I accept the amendment.
The motion was agreed to.
The following reply was transmitted by the secretary:
Hall of the Convention,
Wheeling, December 4,1861.
Messrs. Mathew Reed, Commissioner, Robert Pratt, Leonard Wait, John Goudy, Trustees, James H. McMechen, Principal, of the Fifth Ward School.
The Convention has received -with pleasure the invitation to visit your school which you have so politely and appropriately extended to them; and have instructed me to say to you that they cheerfully and most cordially accept the invitation and will certainly avail themselves of the opportunity thus afforded them of seeing the practical workings of your school.
Please accept the thanks of the Convention for this expression of your respect and consideration; and be assured the Convention will not forget, in the formation of the new State Constitution, the great subject of education.
I have the honor, gentlemen, to subscribe myself
Yours very truly,
ELLERY R. HALL, Secretary.
MR. STUART of Doddridge. The order of the day before the Convention is the report of the Committee on the Boundary of the State. I presume it does not come up under the rules, and I would make the motion, sir, to take it up and consider it as we have the other report, section by section, and that we now proceed with the order of the day.
MR. DILLE. I would ask, Mr. President, if the report from the Committee has been printed? I have not yet had the pleasure of seeing a copy.
MR. VAN WINKLE. It has not been distributed, I believe.
MR. BATTELLE. I would suggest further, that as this report has not yet come into the hands of the members, would it not be better to lay this on the table for the present and resume the business of the morning.
MR. STUART of Doddridge. What is the motion?
THE PRESIDENT. None has been made.
MR. STUART of Doddridge. Then I move it be laid on the table and made the order for tomorrow at twelve o'clock. I think this report should be considered, because many matters to come before the Convention cannot be reported on until action is on this report.
The motion was agreed to.
THE PRESIDENT. The gentleman from Marion (Mr. Hall) had the floor on the unfinished business.
MR. HALL of Marion. Mr. President, I was about to say - or did state, I believe, before proposing my amendment - that I did so without a knowledge of what consideration had been given this subject already. My amendment, in line fourth of section six, looks to a change in this particular only: that persons who have been convicted of treason shall not by any contingency, by the clemency of a power that may exempt them from the extreme penalty, ever again be permitted to exercise the right of voting. I believe, sir, it is proposed that persons who resort to such practices as will be detrimental to the safety of elections - any member of the bar, or anything of that sort - are disqualified perpetually. It occurs to me that there is even more propriety in excluding persons who have been convicted of treason against the government, from ever again by any contingency exercising that right, and thus it is, I make that proposition to so amend. As I understand the language of the section as it now reads a party who has been convicted of treason and yet received executive clemency would at once be restored to the privilege of the citizen and again be permitted to take part in the elections the same as other men. I would forgive a man when he had repented, but I never would trust a man who was. guilty of treason; and I think there is but one safe course; and though it might in individual cases seem to be a harsh rule, yet the safety and good of all requires that even in cases where it might appear harsh, the individual must for the general good submit to any hardship or harshness the rule might impose upon him. I therefore make the motion to amend in that particular, by inserting in the fourth line in the clause beginning, "but no person who is a minor, or of unsound mind, or a pauper, or who is under conviction of treason or felony" - there I propose to say "or who has been convicted of treason or is under conviction of felony".
MR. VAN WINKLE. The one would include the whole - "has been convicted."
MR. HALL of Marion. Yes, "has been convicted". The term here is, "who is under conviction." I apprehend if a party received executive clemency, he would no longer be "under conviction"; so that by the present reading the party thus convicted who may in the case of felony have served out his time or received the pardon of the Executive, or who in the case of treason may have been the recipient of Executive clemency, would then cease to be under conviction. I propose to change that and say that in case of treason, if he has been convicted at all, and in case of felony, if he is under conviction.
MR. LAMB. Will the gentleman from Marion allow me to make a suggestion.
MR. HALL of Marion. Certainly.
MR. LAMB. Would it not be a better shape to put the motion in to strike out the word "treason" from the fourth line and insert it before "bribery" in the next line?
MR. HALL of Marion. Yes, sir; that will accomplish my object; and I accept the amendment.
THE PRESIDENT. You will accept?
MR. HALL of Marion. Yes, sir.
MR. VAN WINKLE. Mr. President, I think it is very apparent that the rule which requires motions to be reduced to writing should be enforced, especially here, where words are proposed to be changed and other words substituted.
I would like to ask the gentleman how he would get along, supposing this amendment prevailed in a case of this kind: here in the exasperation of feeling that prevails, and will continue to, against those guilty of treason, it is entirely probably that some convictions will be had undeservedly. Now, sir, there have been numerous instances in the history of the criminal law of this and other countries where persons have been improperly convicted, although at the time the evidence seemed of the highest and most reliable character. Nevertheless, sir, even in such cases, it has been found afterward that the wrong person was convicted. Now, under the amendment the gentleman proposes to put in here, that person, wronged as he has been by the administration of the criminal law - deprived of the right of personal liberty - incarcerated in the penitentiary - his case aggravated by everything that can aggravate the case of an innocent man, unjustly convicted of a great crime - and yet the gentleman's amendment will shut out such a man forever from the privilege of holding office, voting, or anything else as a citizen.
Now, sir, this form of expression was introduced here by the committee on purpose to permit a man who had been illegally and improperly convicted and who had been pardoned by the executive in consequence - to admit him again to all his civil rights. I presume, sir, that such a case ought at least to be provided for. But now, let us take the other branch of it. Here is the law of the land that affixes a penalty to treason and felony. The penalty for treason has always been death, but by a subsequent section here it is proposed to allow the legislature to modify it in some cases - that is, degrees of treason, as they make degrees of murder and other high crimes; so that a person will not necessarily lose all his privileges if he is convicted of treason. He may be subject to the other punishments mentioned there, as provided for.
Well, sir, it is true the law fixes the penalty. That penalty is in almost the very language of the law the expiation of the crime. If the law does not fix a sufficient penalty, it should be made sufficient. If found that imprisonment is not sufficient, the penalty should be death. You can go no further in this civilized day. Well, sir, if the party expiates his crime - after he has served out his time of imprisonment - paid his fine - done what the law says is a sufficient penalty - I would ask, gentlemen, is that man to be still punished and punished forever? It strikes me, sir, there is a degree of injustice about the whole matter that ought to be fatal to this proposed amendment. I do not think, sir, either, that is the purpose or within the power of the law to become vindictive. One above us all has said "Vengeance is mine, and I will repay;" and any man, sir, who would attempt to form a theory of crimes and punishments based on the idea of vindictiveness would go very far from what I consider to be the true principles of government. The punishment of treason by death is justified by the national safety; but the rights of person are as sacred as the rights of a nation; and the right to punish only arises from the principle of self-defense. The community may punish to prevent the commission of crimes. It punishes for self defense, to protect itself against, in the language of your indictments, "all others in like cases offending." And, sir, I pray most heartily while ever I have anything to do with the infliction of punishments for these crimes of our erring fellow citizens that I may be actuated by a principle other than vindictiveness. I hope after I have discharged that duty I may appeal to my Maker and say that I did it merely in the discharge of a high and holy duty, I owed my country, - that it was my duty to see that these crimes were properly punished, in order that the country might be free from such in the future. If I can ascribe it to such a motive, I am justified in the sight of God and man. But, sir, if I do allow the lightest particle of vindictiveness to enter into my judgment, to take into my hands the thunder-bolts of the Almighty and deal out damnation round the land on each I judge a foe, I have done that which I cannot justify in the sight of God or man.
Now, sir, I trust gentlemen will look at this matter and satisfy themselves that which would deprive a person who has either been illegally convicted or a person who has expiated his crime by undergoing the punishment of the law - I would not ask to go one step, aye, one iota beyond - does not partake of the character of vindictiveness. And I hope, sir, now giving a start to our new State that we will not be anxious only to embrace in the principles which shall govern our state those important political principles which the greater experience of mankind since the formation of our Constitution, the greater experience of our country as sanctioned and recommended, but will also endeavor to be governed in fixing whatever we may have to fix by a not higher principle of morals than existed before, but by better defined moral principles than were extant in a former generation. I have, sir, truly stated according to the writers on the subject the object of all punishment - that it is the protection of the community, literally the right of self defense and self-preservation which the Almighty has given to his animate, and much of his inanimate creation. If so, sir, I think this provision as proposed by the committee goes far enough.
Now as to bribery in an election, that goes farther. It taints an election; it introduces a principle which if carried out would be fatal to all free government. In its effect the crime is perhaps as great as that of treason; and it appears to me that in the one case I would go no further than in the other. It might remain as it is, but I would have no objection to putting them on the same footing.
MR. WILLEY. There is I conceive, sir, a principle of importance involved in this proposition. Perhaps there is no class of offences liable to greater abuse, than the crime of treason - no class of offences in the prosecution of which there is greater liability of injustice and injury being done. And I regard the right of suffrage of such high importance, so fundamental in its character, the very life of free institutions, that I think the old legal maxim might be well applied to it, that it is better that ninety and nine guilty persons escape than that one innocent should suffer. I recur again to repeat the fact that there is no class of prosecutions in which from the nature of the case there will be so much liability to error of judgment, under the influence of prejudice and passion and excitement, and especially in view of the difficulties of ascertaining the facts upon which a conviction could be properly founded. And therefore, I feel disposed to oppose the amendment of the gentleman from the county of Marion.
Now, sir, take an illustration: suppose we were the Union men of east Virginia today, instead of occupying the favorable position which we do at present, and there were a clause in the constitution, of east Virginia such as the gentleman from Marion would have inserted in this. Why, sir, what is Mr. John Letcher doing and what is east Virginia doing at this time? - indicting for treason, convicting of treason and for aught I know, hanging for treason. It is to be hoped, sir, that in the progress of events this tyranny and oppression will be taken from these Union men in east Virginia, and the true and legitimate government; and yet before that takes place or at the time it does take place the jails of eastern Virginia may be full of Union men convicted of treason and condemned to death; and when the loyal governor takes the executive chair, and a proclamation of amnesty is published, these men are let out of prison with the privilege peaceably to exercise the functions of free men. In the progress of events we may be placed in such a predicament for aught that I know. It is a supposable case at any rate. I merely mention this as an illustration of the injury that may be done.
Now, sir, it is fair to presume that when a man is pardoned he is pardoned because he is innocent, because he is not deserving of the death to which he was condemned. That is the logical conclusion to be drawn from the exercise of executive clemency in that behalf. And shall the innocent man suffer - a man who by the laws of the country has been declared to be innocent - shall he suffer the deprivation of the greatest right of a freeman, the right of suffrage? The fundamental right of a freeman, and the polar star in popular institutions? I think not, sir. If the traitor is guilty, why I should have no objection of making the disability perpetual; but the very idea of pardon presupposes innocence; and being innocent, he ought not to be deprived of the right of suffrage. If he is guilty, he will be hung - and he ought to be hung; and I suppose the amendment of the gentleman does not extend beyond the grave. It can only extend to cases of pardon. But conviction and pardon presuppose innocence, and the result of the amendment of the gentleman from Marion would be to deprive an innocent man declared to be so by the laws of his country of the high and invaluable right of suffrage.
I shall be constrained, sir, to oppose the amendment.
MR. BROWN of Kanawha. Would it be in order to amend the amendment?
THE PRESIDENT. Yes, sir.
MR. BROWN of Kanawha. Then I propose to amend the amendment by striking out the language proposed to be inserted in the amendment and the word "or" in the fourth line of the sixth section before "felony" and the last word "who" in the same line; and on page two, the first four words of the first line "has been convicted of".
THE PRESIDENT. Those amendments - it is almost impossible for the Secretary to keep them properly in mind to get them on record properly, if not committed to writing.
MR. BROWN of Kanawha. I propose to make it so read that "no person who is a minor", etc., - the point is, sir, that I oppose depriving a man any more in case of bribery than of felony but that in one case no more that in the other should it be executed; and it seems to me the remarks of the gentleman last on the floor apply as well to one case as to the other - to felony, bribery and treason all alike.
MR. LAMB. I would ask the gentleman from Kanawha to withdraw his amendment. I do not think it can properly be proposed as an amendment to the amendment of the gentleman from Marion. It is only confusing the matter. The gentleman from Marion wants to accomplish one object and the gentleman from Kanawha another and entirely distinct object. Let us take the vote on the amendment first proposed, and then the amendment of the gentleman from Kanawha will be properly before the Convention.
MR. BROWN of Kanawha. I withdraw.
MR. HALL of Marion. Allow me, sir, in response to the arguments of the two gentlemen who have last spoken upon this question to say that I was unable when I submitted this amendment to understand how it was that the committee who prepared that report had made the offence of bribery in an election a disqualification to the party ever after to vote under any circumstances; and yet they would nurse that treason that is so common throughout our land by saying that if it becomes so common that it becomes a sort of public necessity, we will restore you again and make you citizens as we are. I say I was struck with that feature of the report. The very fact that a party convicted of treason was not perpetually thereafter prohibited, but that a party convicted of bribery in an election was prohibited for all time under all circumstances struck me, and I could not help thinking if there was any offense in the whole catalogue of crimes for which a man should be perpetually deprived of the privilege of exercising the elective franchise, the offence of treason against that government under which he proposed to exercise it was that offence.
I trust, sir, that I offer this in no vindictive spirit. Like my friend from Wood, I would hope that we would indulge in nothing vindictive. That we would be influenced by that only which would accomplish the human objects of the law; that our only purpose should be to prevent crime; but I respond again, what more successful method can we adopt to prevent crime than to put upon the traitor the stain - the mark of Cain - and let him carry it to his grave?
My friend from Monongalia suggests that he supposes the amendment does not propose to follow the party to or beyond his grave. There was a time, and there were offences, the penalties for which did follow a man into his grave. I have no such feelings that I submit this. But in response to the suggestion of the gentleman from Monongalia that the fact that a party has received executive clemency - has received a pardon - presupposes that he was not guilty - well, we may look at the thing, and we may talk about legal presumptions and legal deductions, but when we look abroad we know that that is not the fact, we know that of parties who have been convicted - it is not in a majority of cases - no, verily, I believe not in one case in ten - that a party receives executive clemency because he was not guilty. No, sir, his wealth and influential relatives come to his aid - the plea that his health is waning - that he can do no more injury abroad - that an example has already been made of him - that he has already suffered enough - and our human feelings rise up, and we say readily, release him, turn him from your prison with your executive clemency. That is in cases where the penalty is imprisonment. Where it is the death penalty all these influences are brought to bear in a shorter time; and I do not believe in a majority, or any considerable number of cases where the executive clemency is extended, it is because they have not been proven guilty. All these extraneous influences are brought to bear.
Well, now, sir, it is suggested that this thing may fall heavily on so many, that the Union men in Eastern Virginia would come under the ban of this law, convicted of treason, to "honest" John Letcher's administration over there.
MR. WILLEY. I only used that as an illustration.
MR. HALL of Marion. I had misunderstood the gentlemen; I thought he was arguing that this would operate to the prejudice and detriment of our true Union men over there who are in prisons. They have a sweeping treason clause over there, which originated in the fertile brain of John Tyler, at a midnight hour; and I don't know what they may be doing under it. I am advised that it has caught me - except that it has not caught me. But I do not think this would effect anything there, nor do I suppose it would effect anything anywhere unless the party were really convicted of actual treason. Well now if he is convicted it is argued that there is no class of offence where convictions are so liable to take place when a party may possibly be innocent. We will admit that when offences of this sort exist or occur in our land, the public mind is excited; that it does require care to see that we do not be carried away, that we should look at things calmly, and act on the evidences without prejudice. We admit that fact; but I ask that you go a little further, and ask why this is a fact. I ask why it is that whole communities are so wrought up when offences of this sort come before our tribunals. I ask what response can be given to that but this; that here is a party seeking to destroy our very interest - our lives, property and everything - and thus it is that whole communities are stirred to the utmost and so excited that gentlemen tell us they are really disqualified for meting out justice to the guilty party. Now I just ask gentlemen to look at the thing in this light. When the offence is of that grave character that it dethrones the reason of the citizens of the whole community, I ask ought you not to erect some barrier between them and the recurrence of the crime - ought you not to put the mark of Cain upon the guilty parties that men may be deterred at the very threshold before they have involved themselves in this ruin, is it not wise? The very object as stated by my friend from Wood, and admitted by everyone - the object of punishments is simply to prevent crimes by others in the future. We do not execute a man with a view to restore to life again the party he has murdered, but to prevent him from repeating the crime and to prevent others from committing like offences. Now, sir, if this is that crime that stirs up communities until they are so maddened that those appointed for the purpose are incapable of meting out justice, I ask that you put a mark on this thing in advance that men may be warned, that we may prevent the necessity, as well as the crime, of having the reason of our community dethroned by accusations of the crime. I trust that I have no vindictive feeling that will prompt me or influence me in my action in any matter. If I have, I am unconscious of it. I trust none of us entertain such a feeling. But I ask now, if situated as we are, if there is not a danger upon another hand? I ask if there is not danger now when treason has become so common in our land as to be found upon every hill and in every valley, so common that we are ready to say that we would apply the remedies of the law but it will fall upon so many persons we will forbear? Is there not a feeling of that sort stealing over the minds of gentlemen? If there be such a feeling, let me say that unless we want a repudiation we must say although the number be legion you are guilty and shall pay the penalties of the law. We must do it. Unless we enforce the law it ceases to be of any force whatever; and unless we prescribe penalties for offences that are commensurate, that are sufficient to deter persons from committing those offences, we may expect them to be committed whenever occasion may offer.
I do not know what effect this thing might have. I suppose we do not retroact. Nor do I care. I am ready to say to all mankind you know the penalties prescribed; you know the wickedness of the act - and I would impose such penalties - I would not care how severe the penalties might be - I would lay a mark there. I would not object if it could be provided that where it was afterwards proved that a party under conviction was really and absolutely not guilty, then I would be willing to restore him; but I think there would be very few cases of the sort, and do not think it worth while to attempt to provide for them. Therefore, it is that I propose to place the crime of treason, at least upon the same footing and with an equal penalty with bribery in an election; and if there is anything vindictive in proposing to disfranchise a party who has been convicted of treason, I ask how the gentleman himself, my friend, from Wood will vindicate himself as a member of the Committee submitting the report for suffering that vindictive feature against a party who has seen fit to engage in bribery at an election? Is there not something equally vindictive in that? And that too without the necessity that does exist at least in the other. I believe it is an old-feature. I think that provision disfranchising parties who have been convicted of bribery is a feature of our present Constitution. I think that is right, because the man who would wilfully corrupt the ballot-box never should be permitted to go near it. I think it right. And then I think a little more than that: I think a man who would coolly and deliberately lay the axe to the tree of government, ought never to be permitted to more than live under it - never to participate in the management of its affairs. I would forgive him but I never would trust him. Show me a man who has been guilty of treason and while I had a lingering doubt as to his innocence I would not trust him; and while the rule might fall harshly sometimes - while there might be cases, as there are, in the administration of justice under any circumstances where parties innocent would be convicted yet the good of the greater number requires that these should suffer. I ask if the same reasoning would not require us to abolish capital punishment for murder? Do we not know that innocent men have been executed for murder, of which they were innocent and the fact came to light after they were executed? And yet can we on account of that thing forbear to execute for murder? No, verily; the public good demands in order to prevent the commission of such offences that we continue to do the best we can to judge whether they are innocent or guilty and execute where the testimony shows there is guilt though we may execute innocent men. Are we not bound to take that course with reference to this felony? I want not to be vindictive, but I want to give no bounty to those who have treason - I want to meet them with the halter and the word, and tell them I will hang them upon every occasion if they attempt again to make war on our government. That is my feeling. If that is vindictive, then I am vindictive. It is not against a person but against treason that I am vindictive, and to point it out I would set a mark on them they would carry to their graves, though it would even mark their posterity.
I believe I would vote for the amendment of the gentleman from Kanawha, because I believe that is right. I believe a man who would pollute the ballot box ought not to be permitted to participate in the privilege of it. But while I might be willing to vote for that I would yet insist on leaving this mark for this highest, this greatest of all offenses - to leave a mark there to warn them and deter them in the future from treading on this ground.
I really cannot comprehend the force of the argument of my friend from Wood - while he would retain the one and yet exclude it as to felony. Nor do I conceive the argument of the gentleman from Monongalia can be of force unless he will carry it out to an it should be so; that where there are strong extenuating circumstances thrown around the case, the court should have a right to inflict a penalty according to the degree of the offence. Now, sir, extent that will leave us without any penalties to secure order, enforce law, or protect life or property in any case. His argument proves too much. It goes to say that because it is harsh in some cases, therefore you must not punish. That would be a destruction of all law, to remove all penalties. We have long since learned the fact that without penalties to enforce the requisition of law we cannot have peace or good order, or security of person or property.
I therefore trust it may be the pleasure of the Convention to adopt the amendment, the effect of which will be to place the offence of treason upon the same footing as bribery in an election has stood heretofore and as it is proposed to stand in the present report of the committee.
MR. STUART of Doddridge. Mr. President, if our courts and juries like Infinity were never liable to err, and were always correct in their judgments, then I would be willing to support the amendment of the gentleman from Marion. But they are all human and all liable to err. And if an innocent man should be convicted for treason and through the clemency of your executive should be pardoned, sir, I really think we should not at least enact a constitutional provision to deprive that person of the right of suffrage.
Now in looking to another section of this report -
MR. HERVEY. Will the gentleman give way a moment?
MR. STUART of Doddridge. Certainly, to oblige the gentleman.
MR. HERVEY. It was a remark that was dropped by the gentleman from Marion. I had drawn a few words to which he said he would have no objection to having inserted. With your permission I will read those words: "Or who is under conviction of felony or who has been convicted of treason, unless it can be shown that such conviction is erroneous."
MR. HALL of Marion. I have no objection to that. I accept that.
MR. STUART of Doddridge. I understand, sir, the amendment is accepted by the gentleman from Marion.
I was just calling the attention of the Convention to section thirteen of this report. I find there are different grades of punishment attached to the crime of treason, and I think it is right as I before stated our courts are liable to err; and I for one do not wish to anticipate that our executive will be corrupt, but that he will always be pure, high exalted above motives of the kind; and when he exercises his clemency, I for one will be inclined to think it will be for good cause and for good reasons. It has been admitted that many an innocent man has been punished to death. Well, sir, if it be ascertained before the party is punished for treason, where the penalty is death, that he is not at all guilty, and the executive interposes and pardons him, why should he not be entitled to the right of suffrage. As remarked by my friend from Monongalia, it is better that ninety and nine guilty persons go unpunished than that one innocent person should suffer. That is a maxim that is tolerably old and one that I feel disposed to follow. And if I can see the amendment is like to inflict punishment upon an innocent man I feel like interposing, and give our law makers power to repeal so far as it extended towards an innocent man; but I cannot see the necessity of placing him in the same category of a man who has been convicted of treason in its highest character.
I really think, sir, we should not adopt this amendment; and I, for one, will vote against it.
MR. LAMB. I do not rise for the purpose of occupying the time of the Convention with an argument on this subject; but simply to direct the attention of the Convention to what I conceive would be the true practical operation of the amendment of the gentleman from Marion. A man is convicted of treason; he is subject to the penalty for that offence, that penalty is; death: dead men do not offer to vote. In the first place then it has no application whatever except to those who are convicted but upon whom the penalty of treason is not executed. It may not be executed upon the party because he may escape. Neither in this case will the amendment of the gentleman from Marion have any operation, for if he is convicted of treason and escapes he will never offer to vote. There is but one solitary case, then, to which the amendment of the gentleman from Marion would apply and that is the case in which a party is convicted of treason and is pardoned. There seems to be a misapprehension existing in the minds of the Convention upon this subject of pardon. The executive cannot pardon for treason; at least under the Constitution and laws of Virginia that is the case, and will undoubtedly be the case under the Constitution of the new State. The pardon for treason is to be by the action of the legislature.
Here then we come at the precise question presented by the amendment of the gentleman from Marion. A man has been convicted for treason; the legislature, the representatives of the people of this Commonwealth have seen fit to pardon him; shall we say that that pardon shall be ineffective, that they cannot remove the penalty? Shall we embody this declaration of want of confidence in our legislature in the Constitution of the new State? They may have found that he was guiltless of the offence. They may have found that he had acted in the matter which led to his conviction under compulsion which he could not avoid; and yet, gentlemen, though the legislature may be satisfied that he is entitled to pardon - though the legislature may be satisfied that he is really guiltless of the offence charged against him - though the legislature may be satisfied he has acted under such a compulsion that no reasonable man could be expected to act otherwise - yet the penalty of the offence is to be fastened upon him forever. I cannot vote, gentleman, for the amendment.
MR. HALL of Marion. Will the gentleman allow me to ask him a question? From whence would clemency proceed when a party is convicted of treason against the United States - tried in the United States Court - a citizen of Virginia?
MR. LAMB. We have nothing to do with treason against the United States. If the act for which a man is arraigned for treason against your State government involves treason against the United States, he cannot be tried for treason against the State. The law says you cannot inflict any penalty for an act which is treason against the United States. You cannot act at all in such a case. That matter is not, however, up for the consideration of the Convention.
MR. HALL of Marion. If the gentleman will allow me - he does not comprehend the question. A citizen of Virginia may be indicted, tried and convicted for treason against the United States, and nevertheless is a citizen of Virginia. Suppose that he receives clemency and is still a citizen of the United States - are we not entitled to say he shall not vote?
MR. LAMB. No, sir, as I understand, the law most distinctly declares that if it is treason against the United States, you jurisdiction of the government of the United States, and the State cannot impose a penalty for it. That whole subject is within the government has no right to interfere with it one way or the other. You cannot punish for offences against the United States. You can punish offences against your State government and your own authority. But not merely as to the question of conviction, but as to the mode of punishment, treason against the United States is to be punished only according to the laws of the United States. I read that, sir, in a work that the gentleman has here, but a few minutes ago.
MR. WILLEY. I would suggest to the gentleman from Marion this fact -
MR. LAMB. One moment: "A State cannot take cognizance of, or punish, the crime of treason against the United States." (Story's Commentaries, 173.)
MR. WILLEY. Of course, Mr. President, I do not suppose the gentleman contemplated going that far. But here is the thing - and you will excuse me, Mr. President, for the more I reflect on this matter the greater seems to be its importance - it rises in magnitude. Now, sir, how many citizens, loyal at heart, within the State of West Virginia and especially within the territory we propose to embrace in the enlargement of this State, are this day in the Confederate ranks under compulsion and at the point of the bayonet? And yet, sir, they are guilty of the overt act and the fact could be established by a multiplicity of witnesses. You arrest such a man, or such men - multiplied hundreds of such men - and indict them and convict them of treason, and these facts come to the knowledge of the pardoning power, to the knowledge of the legislature. Every principle of loyalty to the State, every sentiment of mercy and justice would demand at the hand of the pardoning power an act of clemency. And you turn these men abroad again - whose hearts have always been with us, who in the hour of battle rather than fire on their friends - not those who would be arrested, but those of a similar class have been found bleeding and dying and dead, with their touchholes filled up with plugs of wood, and their muzzles half full of bullets, rather than fire on their friends. Such men as these would be liable to disfranchisement, and have the highest distinguishing attribute of a freeman taken from them; and, according to the policy of the gentleman from Marion, the mark of Cain branded on their foreheads, as a thing at which the "slow moving finger of scorn" would be pointed, as unworthy the rights of a freeman.
Sir, I fear we carry this matter too far; and I do trust the remarks of the gentleman from Wood, to beware in times of excitement, and in laying the foundations of a great and Christian State, we do not incorporate in the fundamental law principles of vindictiveness. Let us err, if we err at all, on the side of mercy and generosity. I fear, sir, that a provision of this kind might lead to great injustice and great hardship; and I hope it will be the pleasure of the Convention not to adopt the amendment of the gentleman from Marion.
MR. HAGAR. I live in the midst of rebellion when at home. As loyal citizens as are perhaps in the State of West Virginia, have been ordered out - belonged to the militia - and had to join the Confederate army, and have perhaps shot their guns while there. Some have been killed and others narrowly escaped. These men according to law are guilty of treason. There are numerous cases - many of them from Logan, Boone, perhaps Raleigh and other cases. I think the Divine code is, do justice and love mercy. That is about all I have to say.
MR. HALL of Marion. I should ask pardon for troubling the Convention further about this matter, but beg the indulgence of the Convention one moment.
I am sorry to differ with the distinguished gentlemen, who seem to be a unit in opposition to it, but I cannot help it - it is my misfortune. Allow me to say in reply to an argument of my friend from Monongalia, that a party who is driven to take up arms, that he should slay his thousands commits no offence whatever. Should I take the life of my friends on the left under compulsion, I ask am I guilty of murder or manslaughter, or any offence?
MR. WILLEY. The gentleman misconceives my argument which was that there would be great liability to conviction of such parties in these circumstances.
MR. VAN WINKLE. They might not be able to prove the compulsion.
MR. HALL of Marion. I do not see that it would be a more difficult fact to prove than others at all. It occurs to me these facts would be above all others most easily proven.
MR. LAMB. Will the gentleman allow me to interrupt him one moment. You would have to bring witnesses from the Confederate States.
MR. VAN WINKLE. The land of Secessia.
MR. HALL of Marion. We have them in our midst and all over our land.
MR. LAMB. There is where compulsion is exercised, and there is where the evidence must come from.
MR. HALL of Marion. There is no difficulty in getting the evidence of anything that occurs there. We have among us - and if we have not, we are going to go over where we will be among them - where we will know all about them. The idea of modifying a penalty because there is a possibility of your not being able to arrive at the fact is to me new and novel. It occurs to me that when you provide penalties you provide them according to the offence; and if you are apprehensive that parties will be convicted who are not guilty, you must throw safeguards around the administration of your laws, and not attempt to provide against it in the laws themselves in making them. Is not that the point at which to guard? If you are going to tell me because there is a possibility that a man may be convicted of a crime of which he is innocent that no penalty shall attach to the crime at all? Do we not when we provide penalties provide them with reference to the offence; and then when we administer the laws do we not throw around the administration of them the safeguards that will prevent persons from being punished who are not guilty? Now I have no idea of being influenced here by the cry that we must not "seize the thunderbolts" here and deal out "vengeance" for it is not ours. I am not so sure of that.
MR. VAN WINKLE. It says so in the Bible; there is where I got it.
MR. HALL of Marion. Individually vengeance is not ours; but if we are men, to maintain that which our forefathers have given us is ours, and if we are worthy descendants of those sires we will do it at all hazards. Nothing is cruel that is necessary in order to secure the government, the lives and property and honor of our people. I say nothing that is necessary for that purpose is cruel. The gentleman says here, we may be carrying this thing too far. Now I find in cooler times when we had a convention which assembled at Richmond and sat there for some months and then went in the warm weather to the Springs and luxuriated there - when they had everything quiet around them and nothing to excite - I find (will the page bring me that Constitution?) that the provisions of that same Constitution are that: "No person shall have the right to vote who is of unsound mind, or a pauper, or a non-commissioned officer, soldier, seaman or marine, in the service of the United States, or who has been convicted of bribery in an election, or of any infamous offence;" and in the name of Heaven, if treason is not an "infamous offence," what is? Yet this is what was done before we dreamed of this treason - of this rebellion! Then the villainy of Aaron Burr stood out like a single granite rock on the mountain. Now when treason rises up all around us until it is like a forest, shall we slack our hands and modify the offence? No, verily.
I feel some interest in this question, and I am just like my friend from Monongalia, the more I think about it the more I think there is in it, and the more necessity I see for us adopting this provision. I feel somewhat timid when I look and see the gentlemen who seem a unit in opposing me in this view; but when I hear their arguments I cannot appreciate their force or cogency, and, therefore, I must act from the best judgment I have in the matter. I do not find argument in a proposition to do away with the penalty, lest somebody may be punished who is not guilty. Nor do I comprehend the objection urged, that we are distrusting the legislature of the State, from whom alone can come the clemency that can release a party who is convicted of treason from the penalty of death. My friend from Ohio county I believe did not, with others, faintly catch the idea I sought to convey, but read to me what I very well knew before and very readily admit that where a party is guilty of treason against the United States we cannot take cognizance of that offence in a State capacity. We concede that very readily. As prosecuting attorney in my own county I so instructed the grand jury. But it is nevertheless competent for us to say that persons who have been convicted of treason to the United States and who reside within the State of West Virginia shall not be permitted to vote and to control our State matters. Why, you take it upon yourselves to say paupers shall not vote; you take it upon yourselves to say that persons guilty of bribery in an election shall not vote; yet because he is not convicted of treason to your own State authorities, though he is covered all over with treason against the United States - though he has involved you in all the troubles that were possible for men to bring upon you, and with all his wickedness today - yet you, say because your treason was against Abraham we will take no note of it - we will treat you as a loyal citizen - take you by the hand and meet you at the ballot box. No, verily. We do not propose to punish but to disqualify, so far as that is a punishment. We had that in the other case I named. To a certain extent, disqualification is a penalty; and to that extent it is competent. We have a right to say who may and who shall not vote in our State. Now, I want to know if a party guilty of treason or any other infamous offence is the less guilty because that offence may have been committed in the State of Ohio and be convicted in Ohio courts? Are we to give him the hand of fellowship and turn our backs on a man who has been convicted of a less offence in our own State? I think not. I cannot, therefore, understand that argument. And I do not think that in urging this matter I am influenced by any vindictive spirit. I think I feel nothing of the sort; but I do see, as I before remarked - and I do not mean to speak of having seen it particularly here, because I have seen it elsewhere - but for sometime past. I have seen a disposition to lower the standard because of the universal prevalence of this guilt when in truth and fact we ought to rear it. But because the penalty will fall upon so many, the general impulse - it is a very kind impulse of our nature - the inclination, is to say, because it will fall harshly on so many, let us modify it, let us make it a little less and a little less, until finally, it does occur to me there is some danger of our running into an invitation to parties to go and do so more - not to do so no more but to go and do so more. It does strike me so.
I trust I am understood in this matter and that it may be the pleasure of the Convention to adopt the amendment.
MR. PARKER. Mr. President, if we were here prescribing a penalty that was to operate now at this time upon the guilty as well as the deluded portion of our fellow citizens, no one in this Convention I trust would be more tender than myself. I believe that a great portion of those that are engaged in the present rebellion are deluded. I believe that a great many of them are there per force and against their will. No treason can ever reach them. No conviction by the American people anywhere can ever be procured against them. They are safe. We are here trying to inaugurate a new government, and if we can get it started by sometime next summer we shall do well. I trust in God before next summer this war will be through with. This treason, this rebellion is new matter as my friend from Marion remarks. Aaron Burr! The American people - a great many of them - have no appreciation of what treason is. It hangs over our hills in West Virginia. We find men committing treason with as little compunction or idea as to the wrongfulness of the offence as they have in shooting squirrels. No man will be more tender than I am towards those deluded men. We all feel the awful state our country is now in. What has brought it here? It is treason. Now for Heaven's sake when we start a government we cannot pass laws retrospective. New Virginia can pass no laws to act on the rebel citizens of Virginia. We are fixing up for something that is beginning to live and act; and I trust when it does begin treason will have passed away. Then I say my feeling is to hang around, in our new government, that terrible offence which strikes at the vitals of government, - that offence which has brought us to the terrible condition we are now in - to hang around it, Mr. President, all the terrors the human mind can devise or imagine - I do not care how much; it is a preventive; it is to deter others forever and forever from repeating it. It is not to act on anyone now. That belongs to somebody else. It is not our business, I do say let it hang about it, I would not magnify it. I would make it so terrible that no man would dare to expose himself to be convicted. That is what I would have it. For that reason, I shall vote for the amendment. If it was to act in the present, I would vote against it. As it is prospective and to hold up in terror of all future rebels, I am for it and I wish we could conjure up something ten times as terrible to hang upon it.
MR. BROWN of Kanawha. The gentleman from Marion urges upon the consideration of the Convention the fact that treason against the United States is the treason that is to constitute the disability to be prescribed by us. The gentleman last on the floor tells us the object is, future and not past, and that nothing that will be in the Constitution is to affect or have an application to that which is past. But, now, sir, let us see how far the view of the gentlemen are correct. Treason against the United States we are told is to be a prohibition to the exercise of the right of suffrage in the State of West Virginia under this Constitution; and now, sir, let us see. When this goes into operation in the coming years, the whole courts of the State are crowded - or the Federal Courts that may be within the State are crowded - with the five hundred indictments at every single court for the next five or six years to come, of these very deluded peoples, and upon which conviction in every instance must take place, because the proof is so very clear and simple that those who run may read; and by that very provision while you are convicting not with a view of punishing, yet you are excluding them from the right of suffrage. When this Constitution will be in operation and a man is convicted of treason, then he is within the prohibition and must be excluded from the right of suffrage. But we will find the number to exclude will be almost legion. I would simply narrate an instance of hardship as gentlemen have been speaking of the character of individuals in their counties. At the battle of Boone Courthouse a prisoner was taken, a respectable, good, honest and humble citizen - for I had occasion to know him - with a worthy family, depending entirely upon his labors and exertions. He was taken in battle with his gun in his hand and with a load in the gun; and when he was carried to Kanawha a prisoner by the Federal troops, I was sent for to see him; and as the tears streamed down his cheeks he detailed to me the circumstances in which he was brought into this calamity; with his family helpless and almost houseless, and without the means of sustenance in his absence, he doomed to a long incarceration at Camp Chase, Ohio, until the fortunes of war may return him to his family. He said he was a Union man and had been a Union man. He lived in a secession neighborhood; the colonel of the county had called upon the militia under the law of the State to come forth to rally against these invaders; and these leaders called him, and they further told him if he did not rally to that call and did not obey the law he might expect as the penalty to be shot. He, like many hundreds of others were called into the crowd and fell a victim to the misfortune of the country. But he is as innocent of guilt as any man in the world. And yet, sir, in this very identical case, this man must be condemned not only to the penalty of treason for which he might be pardoned by your executive and freed by your legislature, but under this inexorable law he would be forever prohibited from exercising the right of a freeman.
Are you prepared then to adopt a Constitution which will disfranchise a large number of Union men in the country and I dare say many in this very house; for I have no doubt there are those in this house who have given "aid and comfort" to the rebellion by furnishing provisions and shelter to their friends and relatives in the rebel army. Then, sir, would you turn all these people away because under the circumstances they might be tried for treason - for this treason is one of those crimes that you can make almost anything treason when you get the jury on your side. I think we ought to show some magnanimity in choosing the laws of the country. I do not think it is a time for us to enter into that spirit that would reopen the inquisition. It is better for us to adopt a policy to heal the bleeding wounds, and to restore peace and harmony and peace and union again among our people and that we may unite in brotherly kindness in supporting the government of the State and country.
This is all I have to say.
MR. WALKER. In drawing an idea from the question which has just been spoken of by my friends on this subject, it seems to me my friend from Kanawha has not understood the secession principles as well as other men who have been more concerned with them. It seems as though one gentleman has spoken to him with tears in his eyes in regard to his being a Union man and that he was brought into that condition against his will. I want to refer this Convention to the fact that that is the voice of every secessionist you get. Every single one you bring before the authorities tells you, I am a Union man; I am a good Union man. I want to know if that kind of a spirit is going to rule this Convention. I say such doctrines as that would certainly cheat us out of our rights at any time. Is it possible to think that there is any gentleman here that will rely upon single word of the party that is arrested and brought up as a prisoner and believe what he says? What is the evidence worth? They will, every man of them, tell you for the truth, I have done nothing, that they are Union men. They will do it to extricate themselves from the punishment. In regard to the question, I do not see why it is possible that the gentlemen who have argued this case will dread a fair administration of the law by your loyal citizens. It seems to me there is a fear in the minds of every man of them that our loyal citizens will not administer justice and regard the oath they will have to take. I am astonished to see such fears in regard to the loyal men who have stood up so well and so long for the Constitution and laws.
MR. BROWN of Kanawha. I now wish to propose the amendment I indicated before to strike out the word "or" before "felony" in the fourth line, also the word "who" at the end of the line, and the words "has been convicted of" in the fifth line, so that it will read: "but no person who is a minor or of unsound mind, or a pauper, or who is under conviction of treason, felony, or bribery in an election, or who has not been a resident of the State," etc. The only remark I propose to submit is that the sentence is then rendered harmonious with the same disability for each offence.
MR. VAN WINKLE. Although I conceive the matters are entirely distinct and different principles apply to them, yet I am willing, so far as I am concerned, to accept or adopt the amendments suggested by the gentleman from Kanawha.
MR. WILLEY. I do not know whether I comprehend exactly their operation.
MR. VAN WINKLE. It is to put them all on the same footing.
MR. WILLEY. But what will be its operation on the party guilty of crime under conviction of bribery? How long will the penalty last?
MR. VAN WINKLE. If it is punishment by imprisonment, to the end of the imprisonment; if by fine, till the fine is paid.
MR. WILLEY. We do not know what the penalty will be. Is it to extend until the fine is paid or the imprisonment has expired? I am disposed to favor what I suppose to be the object of the amendment, but really I do not see exactly what is to be its effect on the guilty party; how far he will be punished by it. It can have no effect at all until he is found guilty and convicted; and then what is to be the penalty? How far is it to go? I do not understand it exactly.
MR. HARRISON. I feel constrained to oppose the amendment as proposed by the gentleman from Kanawha. I voted for the amendment of the gentleman from Marion. I would vote for still further enlarging the operation of the proposed section. And I will say here, sir, as the gentleman from Wood remarked yesterday, I do not feel disposed to disregard the experience and wisdom of the past thirty years in the history of our Commonwealth. I do not feel disposed to lay aside all we can learn from the lessons of Jefferson and Madison or Marshall, or the founders of our first Constitution or all the old worthies from that day down to this. If there is anything good in it, and I think there is, let us have the benefit of it. If the proposition of the gentleman from Kanawha prevails, sir, it seems to me you have removed all restrictions of the character of "infamous offences," as termed in the Constitution from the elective franchise, because, sir, I believe all the crimes there mentioned are punished by confinement in the jail or penitentiary; and as the party is so confined he has not the power to vote while "under conviction" anyhow; and, sir, when this restriction is removed, when he is released from. the bonds of the prison, he comes out, as the gentleman from Marion stated, a criminal still. The punishment does not wipe out the crime. The punishment does not make him a better man; and I for one feel no disposition, in inaugurating this new State of ours, to hold out to men who have no regard for the law and none for the rights of their fellow citizens - I feel no disposition to hold out to them a full fellowship in all the rights of citizenship of the Commonwealth. If a man so far forgets himself as to disregard the rights of his fellow citizens, so far as to violate the laws by the commission of any infamous crime, I for one do not feel disposed to extend to him the hand of full fellowship ever afterwards. It may be a vindictive and harsh feeling, but I feel constrained to entertain it; and I think when this Convention throws away all restraints of this character on the elective franchise, we might as well blot out the whole provision, so far as that is concerned.
I hope, therefore, the amendment of the gentleman from Kanawha will not prevail.
MR. LAMB. Mr. President, let us understand distinctly if we can the effect of the motion upon which we are voting. There is a great deal of force in the suggestion of the gentleman from Har- rison. To my mind, it is conclusive on the subject. If the amendment be adopted, as soon as the party who has been convicted has suffered the penalty which is inflicted by the law he will be under conviction no longer. The penalty may be a light imprisonment in the jail, and in thirty days or three months he comes out authorized to exercise with all the good people of this Commonwealth the elective franchise. It may be a fine, and he pays the fine and is restored at once to his competency. I do not think we can contemplate this result. It would be much better that the words should be retained and that in cases of bribery in elections the disfranchisement should be imposed upon him as a permanent penalty. If it is proper to impose it at all, - if it is proper to impose this as part of the penalty, it is making a mere sham of it to relieve him from it as soon as he suffers the punishment which the law may impose on the offence.
MR. WILLEY. Mr. President, I took my seat for the purpose of eliciting the view of gentlemen as to the operation of this amendment, more especially as to what "under conviction" would mean, what operation it would have on the offence. Now, sir, it occurred to me when I made the remark, that the penalty fixed by the law upon convictions of the offence of bribery in an election would be very slight, and its operation comparatively speaking would be very short. In the case of treason, the penalty is death unless the pardoning power is interposed to save him from it. If he suffers that penalty he will never vote again. But a man guilty of bribery may suffer the penalty and vote again in a month or two, at the next election. Now, sir, I hold that bribery at an election is virtual treason - treason of the meanest character. It is an effort to subvert the government; an effort to destroy the foundation stone upon which every free and republican government is erected. Corrupt the elective franchise, destroy its purity and its sacred character, and I would rather have a despotism; I would rather have officers appointed by the throne; I would rather owe allegiance to a, crown. It is the great palladium of free institutions, and when it is corrupted or destroyed or impaired, the government is virtually overthrown. And I repeat again, it is virtual treason, treason of the deepest dye and of the meanest character. There should be some commensurate penalty annexed to such a crime; and the man who is guilty of assailing in that way this great fundamental safeguard of republican liberty, ought not to be allowed to exercise it. A restriction should be imposed upon him. He well deserves to be disfranchised. Perpetual disfranchisement is a most proper punishment for the offence. He seeks to assail and destroy the freedom and purity of elections; the freedom and purity of elections, an essential to the security of the government and our institutions; and no man is a safe man in the community who will attempt to do any such thing; and we ought to have the power taken out of his hands.
Now, sir, the same reason which I urged a while ago against the gentleman from Marion does not apply here. The principle reason that influenced me in opposing that motion was as I mentioned, that the prosecutions for treason would be in times of excitement when the foundation of society was upheaved, when the public mind would be unbalanced, when the passions would be on fire and party spirit running high, and a thousand other circumstances that might be mentioned all increasing the liabilities of conviction where the party was in fact innocent. Now this will never be the case in a prosecution for bribery. It is a small fact, and the great difficulty will be to get a conviction even where the party is guilty. And, sir, it is of all other treason, the most despicable and the most dangerous. And I am very much inclined, sir, to let the section stand just as it is and let men know that they are not to defile this great shrine of liberty with their pestilent presence for the purpose of corrupting the freedom of voters when they come to the polls.
MR. STUART of Doddridge. I am glad the gentleman from Monongalia has found out the unpardonable sin. (Laughter) It has always been a question, sir, a mystery to me, what that was. The gentleman has at last found it and it is bribery at elections. (Renewed merriment.) Well, sir, if it is such a heinous offence and one that is so grave a matter that treason would attach to it, I pray you why should we not inflict a punishment coequal to it - even assigning the punishment of death to it, if it is so grave, or confinement in the penitentiary? But after the party has paid the penalties the law assigned for it, why I hold he ought to have a right to come in as a citizen and as a freeman. I have even said and heard it said, and I believe it is a generally received opinion that -
"While the lamp holds out to burn,
The vilest sinner may return." (Laughter)
Now, we are making a Constitution that we do not expect to remodel tomorrow. This is a provision in our Constitution that may last for a century. I hope our work here may be handed down to posterity. Then, sir, here is the unpardonable sin that we have found out; we attach a penalty to it during life, although a man may become a good citizen and the community may be satisfied he is a good citizen. He has repented of his evils, he has paid the penalty attached to the crime; yet, sir, there is no mode by which this man can be relieved as long as a Constitutional provision debars him.
I will vote for the amendment; and then if the crime is so great, and I fully concur it is a grave offence, I am willing to attach to it a large penalty of imprisonment, say a year, or two years, or five years - but let that be decided hereafter.
MR. VAN WINKLE. I believe I will have to back what I said just now. The reasons assigned by the gentleman from Monongalia, which are pretty much the same as those that influenced the committee to report this as it stands, have satisfied me that if it was only during the conviction it would be of no effect. Now, it is certain that the legislature will fix penalties to it whether this clause stands here or not; but it seems to mark the contrast in it of an offence of this kind; it is proper it should be retained, the more so because it is depriving the offender of the very privilege which he has abused, and by abusing it has shown himself unworthy to hold. In this case, sir, it seems to rest on a very different principle from the other cases which are punished by the severest punishments, and which last, if they are less than death, for a great portion of the lifetime of the offender.
On the question of the adoption of the amendment of the gentleman from Kanawha, Mr. Hall of Marion called for yeas and nays.
MR. VAN WINKLE. I hope gentlemen will not call the yeas and nays on every amendment. We will not get through until next summer, if we are going to call the roll upon every amendment here while we are in fact in committee of the whole when the whole thing has got to be gone over again. It seems to me it is unnecessary.
MR. HALL of Marion. I want to test this matter and see what we are about. I must ask, sir, for the ayes and noes.
The yeas and nays were granted and being taken, resulted:
YEAS - Messrs. Brown of Kanawha, Dolly, Montague, Simmons, Soper, C. J. Stuart - 6.
NAYS - Messrs. John Hall (President), Brown of Preston, Brooks, Brumfield, Battelle, Chapman, Caldwell, Carskadon, Cassady, Dering, Dille, Hansley, E. B. Hall, Haymond, Harrison, Hubbs, Hervey, Hagar, Irvine, Lamb, Lauck, Mahon, O'Brien, Parsons, Powell, Parker, Paxton, Pomeroy, Ruffner, Sinsel, Stevenson of Wood, B. F. Stewart, Sheets, Taylor, Trainer, Van Winkle, Willey, Walker, Warder, Wilson - 40.
So the amendment was rejected.
MR. STEVENSON of Wood. I move we adjourn.
MR. VAN WINKLE. Let us take a vote on the section.
MR. STEVENSON of Wood. I will withdraw if gentlemen wish to stay here longer. I have an amendment to offer myself. Mr. President, I wish to offer this amendment: "but a citizen, who has previously been a qualified voter of the State, and removed therefrom, and returned, and who shall have resided in the county, and be free from the disabilities, as aforesaid, shall be entitled to vote, after residing in the State six months."
MR. VAN WINKLE. I have no objection really to the substance of the amendment or the object of my colleague. But if we undertake to provide in this Constitution for every exceptional case, we shall have a document as long as the moral law. Now it is utterly impossible that you can make any general rule - and these must be general rules, or else the Constitution must be a code - but it is impossible to make any general rule that will not perhaps do some little injustice to some one. You cannot possibly anticipate all these exceptional cases. It is only when a thing is of frequent occurrence that it is worthwhile to provide against it. Where a thing happens only now and then - happens, indeed, very rarely - it does seem it is hardly worthwhile to take up the Constitution anticipating them; for when you have anticipated twelve you will be sure to find the thirteenth. We must adopt some practical rule in reference to these matters.
MR. STEVENSON of Wood. I can state very briefly, sir, my reasons for offering the amendment.
In the first place, I think the principle involved of sufficient importance to have it incorporated in the Constitution. It is but an act of simple justice to persons who may have been citizens of the State heretofore, and it requires but a few more lines, sir, to have it incorporated in the Constitution. Now it is wrong in principle to apply the same conditions to a man who has resided in the State that you apply to a man who first comes into the State. Now, sir, a person having been a citizen of this Commonwealth must have resided in the State at least a year and he may have resided in the State five years, or ten years, or twenty years; and yet you put him in the same position that you do a man who has never lived in the State before at all.
There is another consideration that seems to me of very considerable importance. It is reasonable to suppose that a man who has resided in the State heretofore for a year or upwards, must be tolerably familiar with the affairs of the State and with the working of its institutions. Very well; now, sir, if you give that man the right of citizenship within the period of six months you do no injustice to the people in the State; there is no wrong done to any one; and it may be a very considerable advantage to that man, and a strong inducement for persons to return to the State to wherever they find they may acquire all the privileges of citizenship within that short period of time.
I think, sir, there is every consideration in favor of the incorporation of that principle in the Constitution.
MR. HAGAR. It seems to me under the present circumstances as was said, there is need for that to be embodied in the section. Perhaps there are more than a hundred men who have moved from the State of Virginia, compelled to do it. I know a great many myself. Their lands are there and it is the place of their nativity, and they would love to be back there, but they are driven away; they have taken up their abodes in other States; and now for them to have to come back here and stay here two years or one year, before they have a right to vote, it seems to me under the circumstances it would be unreasonable. I am for inserting that in the resolution. Gentlemen think we have no room. It would not take much paper, and but little time to do it.
MR. LAMB. I imagine the gentleman from Boone misunderstands perhaps the operation of leaving the State. If the persons he has spoken of left with the intention of returning they do not lose their residence. If they have left the State with the intention of changing their place of abode permanently, from thenceforth, they ought to be considered as anybody else.
I would remark, too, in regard to the hardship of the case, that with a little ingenuity in imagining hard cases in reference to general provisions of this kind, I can keep up motions of this character for three weeks on almost any section of great importance. Any law that is to operate in general terms on a whole community must necessarily be frequently accompanied by cases in which they will operate hardly. It cannot be otherwise. Yet a Constitution must be necessarily composed of general rules. We cannot descend into all that infinite variety of detail in regard to particular subjects that you can when you go to make out a code - when you go to work and spread out the legislation that is necessary into one or two large volumes.
It strikes me, however, that even in this case there will be very little hardship, when we take into consideration the principle that a man who moves with the intention of returning is a citizen of the Commonwealth.
The amendment was rejected.
MR. POMEROY. I move we take a vote on the whole section.
MR. O'BRIEN. Mr. President, I wish to insert after the word "pauper" in the fourth line these words: "or who is under the influence of ardent spirits when he offers to vote." (Laughter.) I shall leave the question to the house without debate.
The amendment was rejected.
MR. SIMMONS. I move that the Convention adjourns.
SEVERAL MEMBERS. Let us take a vote on this section.
MR. SIMMONS. I withdraw the motion.
MR. HALL of Marion. I would ask that the section as amended be reported before the vote is taken.
The section was reported and afterwards adopted.
Mr. Simmons renewed his motion and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia