The Convention reassembled at the appointed hour and was opened with prayer by the Rev. T. H. Trainer, a member from Marshall.
The minutes were read and approved.
MR. BROWN of Kanawha. Mr. President, I will now offer the minority report to which I referred yesterday morning of the legislative committee; and I will ask that it be laid on the table and printed.
Mr. Brown accordingly sent to the Secretary's desk the following:
The undersigned, one of the Committee on the Legislative Department, not being satisfied with that part of the majority report of said committee, begs leave to submit the following:
FOR THE ELECTION OF SENATORS
1. The counties of Hancock, Brooke and the county of Ohio, excluding the city of Wheeling, shall constitute one district.
2. The counties of McDowell, Wyoming, Boone and Mercer, shall constitute another district.
3. The city of Wheeling shall constitute another district.
4. The counties of Wayne, Cabell and Logan shall constitute another district.
5. The counties of Preston and Tucker shall constitute another district.
6. The counties of Putnam and Mason shall constitute another district.
7. The counties of Monongalia and Taylor shall constitute another district.
8. The counties of Greenbrier and Monroe shall constitute another district.
9. The counties of Marion and Wetzel shall constitute another district.
10. The county of Kanawha shall constitute another district.
11. The counties of Marshall and Tyler shall constitute another district.
12. The counties of Jackson, Roane and Calhoun shall constitute another district.
13. The counties of Doddridge, Ritchie and Gilmer shall constitute another district.
14. The counties of Wood, Wirt and Pleasants shall constitute another district.
15. The counties of Barbour, Randolph and Pocahontas shall constitute another district.
16. The counties of Fayette, Nicholas, Clay and Webster shall constitute another district.
17. The county of Harrison shall constitute another district.
18. The counties of Lewis, Upshur and Braxton shall constitute one district.
And if the following named counties shall become a part of this State, then -
19. The counties of Pendleton and Hardy shall constitute another district.
20. The counties of Hampshire and Morgan shall constitute another district.
21. The counties of Berkeley and Jefferson shall constitute another district. 22. The county of Frederick shall constitute another district.
One senator to be elected by the voters in each district; or, if double districts should be preferred, then as follows, viz:
1. The counties of Hancock, Brooke and Ohio shall constitute one district.
2. The counties of Wayne, Cabell, Logan, Boone, Wyoming, Raleigh and McDowell shall constitute another district.
3. The counties of Monongalia, Preston, Taylor and Tucker shall constitute another district.
4. The counties of Mason, Putnam, Kanawha and Fayette shall constitute another district.
5. The counties of Marion, Marshall, Wetzel and Tyler shall constitute another district.
6. The counties of Jackson, Wood, Pleasants, Wirt, Calhoun and Roane shall constitute another district.
7. The counties of Harrison, Barbour, Doddridge and Ritchie shall constitute another district.
8. The counties of Greenbrier, Monroe, Mercer, Nicholas and Clay shall constitute another district.
9. The counties of Lewis, Upshur, Randolph, Pocahontas, Webster, Braxton and Gilmer shall constitute another district.
10. The counties of Pendleton, Hardy, Hampshire and Morgan shall constitute another district.
II. The counties of Berkeley, Frederick and Jefferson shall constitute another district.
Two senators to be elected by the voters in each district.
In making the apportionment just stated, the undersigned has kept steadily in view the following considerations, viz.:
1st. Equality of population and territory.
2nd. The geographical features of the territory.
3rd. Compactness in the form of districts.
4th. The homogeniety, social intercourse and business relations of the people of each district and their peculiar and local interests.
Departing from these principles only where it was believed necessity required it, the undersigned has begun at the most remote parts of the State and laid off the districts alternately at the opposite extremes, and so on till they united in the middle, or as near it as could be attained.
JAMES H. BROWN.
TABLE
MR. HARRISON. I have a resolution in my hand to which I wish to call the attention of the Convention this morning, together with some few of the reasons which suggest themselves to my mind at this time for making the proposition. The Secretary can read it, and I will ask that it be laid on the table and printed and I will call it up at some future day of the Convention for action.
The Secretary read the resolution as follows:
RESOLVED, That the Constitution of Virginia be referred to a committee of five, with instructions to modify the same so as to adapt it to the territory embraced within the new State, and to provide for the formation of a new State Constitution at some future time.
MR. HARRISON. I would like to make a few remarks in reference to the reasons which have induced me to offer that resolution at this time. I believe it is my duty, sir, to offer such a proposition. I feel well assured it meets the views of my constituents, and I think that I may say that such a proposition will meet the views of a great many other citizens within the proposed boundary of the proposed new State. If we will look at this ordinance under which we are sitting here, we will find they provided, among other things that the Constitution which should ie agreed upon by this Convention should be submitted to the people for their action on the 28th day of December. They further provided that we should meet here on the 26th of November. Now, did the Convention which framed this ordinance mean that hat was a mere idle thing? That we should meet here and prepare and submit to the people a constitution within a month? I think not, sir. I think it was intended by the framers of that ordinance that we should take speedy action; and it has occurred to the minds of all my people that that speedy action is simply to take this present Constitution of Virginia and so modify it as to adapt it to our circumstances for temporary use. The public mind is not now in that condition to discuss the principles of constitutional government except along the river counties. The counties in the interior, particularly as you go south and southwest, are in a state of the utmost confusion. In many of them there is no law at all prevailing, and in a large number of others one half the people are without any law at all. The action of the various committees has progressed far enough to show us that many important and radical changes are to take place in this Constitution - changes that perhaps the people ought to have time and opportunity to reflect upon and discuss. I hold that the present confused state of affairs will continue beyond the time when we shall have taken this vote in a large majority of the counties embraced in the boundaries of this new State to such an extent that discussion of the present Constitution will be out of the question. There is another thing, sir. When we look at the report of the Secretary of the Commonwealth, we find there that comparatively a small proportion of the people inhabiting this boundary are really represented in this Convention. There are ten counties that have no representation on this floor at all. There are five or six more in which a very small - an extremely small proportion of the inhabitants of the county are represented. It seems to me these are considerations also which should induce us to submit to the people the old constitution simply modified and adapted to the circumstances under which we meet. For instance, diminish the numbers of the members of the legislature, diminish the number of the judges, etc. Now, sir, we can do that in 48 hours. A committee can in 48 hours take this old constitution and prepare it to suit the altered circumstances of our territory if it does that alone. I do not understand that the people of this territory have such very great objection to the principles of the old Constitution of Virginia under which we have been living for nearly a century, but to the policy of the eastern portion of the State, the outrageous action of our eastern brothers and particularly in reference to the question of secession. This is one of the great motives that has prompted our people to seek a severance from the other portion of the State. Moreover, sir, the delegates here assembled are about to return to their respective counties, a large number of them. Of course, we may suppose that, at least privately, the action and proceedings and intention of this Convention will be discussed - not, perhaps discussed publicly but in private conversation. This matter may then be brought before their people. They may discuss it with their people there, and when we shall have returned I propose to call up this resolution and do not propose then to add any additional remarks upon it but simply to take the vote on it after having in a manner consulted with our people.
It seems to me, sir, that provision which I have inserted that at some future time a convention shall be assembled and make a new constitution - that this will also meet the views of our people, because in the existing constitution there is a provision that in 1865 some modification should take place in the arrangement of the constitution under which we are now living. Perhaps that would be a suitable time, because our people are looking to that time. It may be advisable to defer the formation of a new constitution for our people until some such a time as that. I hope in that time the war will be over and the country calmed down and the people will be ready to discuss and think about all these radical changes which perhaps as a new kind of people we may find necessary for our existence.
There is one other consideration, sir. It is in answer to the argument of the gentleman from Wood - an argument that had had heretofore great weight with me. It is this: the argument is that we ought so to frame our Constitution as to invite the emigration of other states. Well, that is true to a certain extent; but it seems to me we must reflect that we are not framing a constitution for the people of other states but for the people who inhabit this territory. But I think, sir, we ought to yield something to the prejudices of our people. It may be that a great many of their views are simply prejudices, but we ought to defer to them and we ought to wait to prepare the public mind for important changes. I cannot say they are not beneficient changes, but by deferring the action of the Convention for the making of a constitution we will have time to canvass this thing before the people and prepare their minds for it.
The fact, it seems to me, sir, that we will have an opportunity of conversing, a great many of us, with our people on this subject would at least merit some consideration. It is true, nothing will be obligatory on any delegate who returns home to mention the subject at all. I have offered the resolution now simply from the fact that we are going home and in the course of conversation it may be our people will have this matter before them and make suggestions to their delegates either favorable or opposed to it.
MR. VAN WINKLE. I believe it is rather unusual for a gentleman to argue the merits of a question on a motion to lie on the table and print. This is a larger exhibition -
MR. HARRISON. I had no idea of taking up debate.
MR. VAN WINKLE. I was going to say this was a rather larger exhibition of a hankering after the flesh-pots than I expected to see. I did think there would be a little of it manifesting itself indirectly; but this open and avowed cry of "would God we were in Egypt, where we sat by the flesh-pots and ate to the full," is more than I looked for. I may suppose the charms of that old constitution, which has now been modified and amended under the auspices of Mr. Stuart in the Richmond convention, by which every poor man is to be deprived of a vote, and by which it is to be asserted that there are classes in society - that one is everybody and the other is nobody; one is everything and the other is nothing - I suppose, sir, that in that gentleman's strong affection for this old constitution he would like to take in those recent amendments. Now, sir, this question may as well be decided now. If it is going to be decided as the gentleman, proposes, the committees must pause here; for it is not to be supposed that if we believe this proposition would be adopted that the committees would offer another report. If there is the slightest danger that this resolution will pass, of course every committee would cease its labors at once. I therefore move to postpone indefinitely.
MR. BROWN of Preston. I call the yeas and nays on the amendment.
The resolution was again reported by the Secretary.
MR. BROWN of Kanawha. I desire to inquire if that proposition does not, under the standing rule, go to the proper committee to be printed? It seems to me the multitude of resolutions we have had have not been even read.
THE PRESIDENT. This resolution does not come within that rule. It is the appointment of a committee and a duty to be performed under it by the Chair, and it would not come under the rule referred to.
MR. VAN WINKLE. I have nothing more to say except on the question of order. This does not propose to be referred to a standing committee. I believe the motion is entirely in order at any stage.
MR. STEVENSON of Wood. I was going to make a remark, sir, if it would be in order. That if the gentleman would modify it so as to refer it to a standing committee, I would have no objection to that. I think as a matter of courtesy he is entitled to a vote.
MR. BROWN of Kanawha. I rise with a view of explaining the vote I shall give on that question. I did not catch as the resolution was read the fact that it required a separate committee. If it were modified so as to be referred to a standing committee, I should have no objection to voting for it. I shall vote against it if it goes to a separate committee.
MR. HARRISON. I have no objection to modify it to suit the views of any member.
MR. VAN WINKLE. I insist on my motion. I submit to no modification.
THE PRESIDENT. Modification would not now be in order, the yeas and nays having been called for.
The question was taken on the motion to indefinitely postpone and the motion was agreed to by the following vote:
YEAS - Messrs. John Hall (President), Brown of Preston, Brown of Kanawha, Brooks, Brumfield, Battelle, Chapman, Caldwell, Carskadon, Cassady, Dering, Dille, Dolly, Hansley, Hall of Marion, Haymond, Hubbs, Hervey, Hagar, Irvine, Lamb, Montague, Mahon, O'Brien, Parsons, Parker, Paxton, Pomeroy, Sinsel, Simmons, Stevenson of Wood, Stewart of Wirt, Sheets, Soper, Stuart of Doddridge, Taylor, Trainer, Van Winkle, Walker, Warder, Wilson - 41.
NAYS - Messrs. Harrison, Powell - 2.
MR. BATTELLE. Mr. President, with the indulgence of the Convention, I wish to correct a word in the beginning of my proposition offered on Saturday last, with a view simply that it may be in a correct form in the hands of the members. I suppose the inaccuracy has been noticed by many of them. I wish that they would be kind enough to change the word "relatives" to "relations."
MR. CALDWELL. Mr. President, the Committee on the Executive Department, sir, having had under consideration the former report of that committee which was recommitted to them on yesterday, have requested me, sir, to submit the embodiment of other provisions in lieu of those contained in that report. I suppose it had better be laid on the table and printed.
I will just observe that at the instance of some members of the committee, the committee all concurred that if there was no other business, that this report might be taken up without printing. The former report has been printed, and by reading the amended report, the first one being in the hands of the members of the Convention - we supposed they might with facility note the changes in this amended report. However, it would be more satisfactory to have the amended report printed. If it is the pleasure of the Convention to dispense with the printing of that report so as to enable the Convention to take it up and act on it today, I would suggest that it do not lie on the table and be printed. I merely advert to the fact that the thing was talked of in the committee. It is for the Convention, however, to determine.
The Secretary read the report as follows:
- Your committee, having had under consideration its first report, recommitted to them, beg leave to submit the following provisions in lieu of those embodied in the said first report, viz.:
1. The chief executive power of this Commonwealth shall be vested in a governor. He shall hold his office for the term of four years, to commence on the first day of January next succeeding his election; but the same person shall not be elected for two successive full terms, nor shall any person who has served as governor for two full terms be again elected to the office. The person acting as governor shall not be elected or appointed to any other office during his term of service.
2. No person shall be elected Governor unless he has attained the age of thirty years, and has resided in a county forming a part of this State for five years next preceding his election.
3. The governor shall reside at the seat of government; shall receive two thousand five hundred dollars for each year of his service, and during his continuance in office, shall receive no other emolument from this or any other government.
4. The governor shall be commander-in-chief of the military forces of the State; shall have power to call out the militia to repel invasion, suppress insurrection, and enforce the execution of the laws; shall conduct in person, or in such manner as may be prescribed by law, all intercourse with other foreign states; and during the recess of the legislature, shall fill temporarily all vacancies in office not otherwise provided for, by commissions to expire at the end of thirty days after the commencement of the succeeding session of the legislature. He shall take care that the laws be faithfully executed; communicate to the legislature at each session thereof the condition of the Commonwealth; recommend to the consideration of the members such measures as he may deem expedient; and convene the legislature in extra session when in his opinion the interest of the Commonwealth may require it. He shall have power to remit fines and penalties in such cases and under such regulations as may be prescribed by law; to commute capital punishment, and, except when the prosecution has been carried on by the house of delegates, to grant reprieves and pardons, after conviction; but he shall communicate to the legislature at each session, the particulars of every case of fine or penalty remitted, of punishment commuted, and of reprieve or pardon granted, with his reasons for remitting, commuting or granting the same.
5. The governor may require information in writing from the officers of the executive department, upon any subject pertaining to their respective offices, and also .the opinion in writing of the attorney general upon any question of law relating to the business of the executive department.
6. Returns of the election of governor shall be made in the manner and by the persons designated by the legislature, to the secretary of the Commonwealth, who shall deliver them to the speaker of the house of delegates, on the first day of the next session of the legislature, who shall, within ten days thereafter, in the presence of a majority of each house of the legislature open the said returns, when the votes shall be counted. The person having the highest number of votes, if duly qualified, shall be declared elected; but if two or more shall have the highest and an equal number of votes, one of them shall thereupon be chosen governor by the joint vote of the two houses. Contested elections for governor shall be decided by a like vote, and the mode of proceeding in such cases shall be prescribed by law.
7. In case of the removal of the governor from office, or of his death, failure to qualify within the time prescribed by law, resignation, removal from the seat of government, or inability to discharge the duties of the office, the said office, with its compensation, duties and authority, shall devolve upon the president of the senate, and in case of his inability, or failure from any cause to act, on the speaker of the house of delegates; and the legislature shall provide by law for the discharge of the executive functions in other necessary cases.
8. A secretary of the Commonwealth, treasurer, and an auditor shall be elected at the same time and for the same term as the governor, their compensation and duties, and the mode of making returns of their election shall be prescribed by the legislature.
9. The legislature shall have power to establish a land office whenever it shall be deemed expedient, assign the duties thereof to a proper officer, and prescribe his compensation, term of, and manner of appointment to, office.
10. The legislature shall have power to vest the management and control of the works of internal improvement of the State, the disposition and investment of the fund arising therefrom, or that may be created for that purpose, in the governor, treasurer, and auditor, and to prescribe their duties as a board of public works.
11. The legislature shall have power to provide for the organization of the militia, and the appointment of militia officers; but no officer below the rank of brigadier general shall be appointed by the legislature.
12. Commissions and grants shall run in the name of the Commonwealth of West Virginia, and bear teste by the governor, with the seal of the Commonwealth annexed.
By order of the committee.
E. H. CALDWELL, Chairman.
MR. BROWN of Kanawha. Mr. President, in looking over this I see the report is substantially the same with a few modifications. I think it is perfectly competent for us to take up this report now without printing again, and I move we proceed to take up the report.
MR. VAN WINKLE. I am willing it should be taken up, with the understanding that if any gentleman desires any section to be passed by that the Convention will so do. A great many of these provisions are plain and simple but there may be cases where some gentleman will desire to offer an amendment and would want time to prepare it. In such cases he would have a right to ask that the section be passed by for the present.
MR. BROWN of Kanawha. I have no objections.
MR. STUART of Doddridge. I do not see in the present printed report how members of the Convention can offer an amendment to any certainty; because there are some sections entirely stricken out. The lines are numbered on the report, and we cannot point out where we want the amendment to come in. It seems to me it would be an inconvenience.
The motion to take up and consider was agreed to.
The Secretary reported the first section as follows:
1. The chief executive power of this Commonwealth shall be vested in a governor. He shall hold his office for the term of four years, to commence on the first day of January next succeeding his election; but the same person shall not be elected for two successive full terms, nor shall any person who has served as governor for two full terms be again elected to the office. The person acting as governor shall not be elected or appointed to any other office during his term of service.
MR. BROWN of Kanawha. Seeing some of the difficulties as the reading progresses in making amendments, I believe we will perhaps be delayed more in attempting to write out these amendments than to have it printed so that we can see the line on the paper before us. I will move to reconsider the vote.
The motion to reconsider was agreed to.
MR. BROWN of Kanawha. I suppose, Mr. President, the report lies on the table and will be printed?
THE PRESIDENT. The report under the rule would be printed as a matter of course without a motion.
MR. LAMB. Mr. President, there are eight sections of the report of the Committee on the Legislative Department ready for distribution. Will it be the pleasure of the Convention to take up that report at present? They will have authentic copies to act upon that far. If you do not take that course, I believe there is nothing else to do.
MR. POMEROY. I move that we take it up. I make that motion because we spent two days that we could accomplish very little. Now this report is before us. It has been read. We have all heard it read and there is a portion of it printed and I understand the other portion of it will be printed in a very short time - be here in the afternoon session; and therefore as the sections are entirely different, I think we can proceed with these first sections until the other is ready, under the rule that we have adopted to take up section by section. This report I judge is one that is not going to be passed in a few hours.
MR. BROWN of Kanawha. Mr. President, in taking up this I desire it distinctly understood whether the report of the minority which I submitted will be printed under the rule without a motion. I took it for granted it would. I desire that printed, to be considered with this report when we arrive at the report when the divergence takes place. There is only a small portion of the report in which there is any divergence.
The Secretary said the report was ordered to be printed.
Mr. Pomeroy's motion to take up the legislative report was agreed to.
The Secretary reported the first section recommended by the committee as follows:
1. The legislative power of the State shall be vested in a senate and house of delegates. The style of their acts shall be, "Be it enacted by the legislature of West Virginia."
MR. VAN WINKLE. I move to strike out the second clause, as is already provided for in the article adopted in the report of the Committee on Fundamental and General Provisions.
MR. LAMB. The clause reported by the Committee on Fundamental and General Provisions is this:
"2. Laws shall be enacted in the name of the State of West Virginia."
I suppose that that would render it necessary that your acts should commence, "Be it enacted by the State of West Virginia."
MR. VAN WINKLE. Precisely.
MR. LAMB. Then I would prefer to have the words "of the legislature."
MR. VAN WINKLE. That has been adopted, but stands so on its first reading. There is to be a second reading of that report, when the gentleman can make that correction. The amendment should have been made there if it was desired. I see there are several encroachments, sir, in this report, and I think, sir, I would meet them at the threshold - two committees that have been very much tampered with.
MR. LAMB. Another thing I may remark in continuation of the remarks I was about to make in reference to this subject is that there is nothing in these provisions which gives a name to the legislative body except this section - nothing which says it shall be called the "general assembly" or the "legislature," and this provision was intended to accomplish both purposes. It in fact gives the name of the body as well as prescribes the manner in which the act should commence.
MR. VAN WINKLE. Well, sir, I would withdraw my objection. We will strike it out of the other when it comes up.
MR. LAMB. As to the question of encroachment, I take it this is strictly a matter within the sphere of the legislative department and it is not - if the gentleman will excuse me in saying - it is not a fundamental provision in any sense of the term.
MR. VAN WINKLE. General provision.
MR. LAMB. Everything in the Constitution must be a "general provision."
MR. VAN WINKLE. I will withdraw my objection and we can strike it out of the other.
MR. LAMB. I wish, Mr. President, to say in explanation of the first clause that I would desire the Convention to understand what the committee intended to be the full purport of that clause. It is the foundation, sir, from which our legislative provisions commence. "The legislative power of the State shall be vested in the senate and house of delegates." Is it, therefore, properly within the meaning of those terms, "legislative power" as vested in the legislature, which is provided for by this report. Bearing this object steadily in view through the consideration of the report, we should recollect that it is not necessary to confer legislative power by express provisions upon the legislative body, for we start upon the principle that all legislative power of the State is vested in that body unless it is actually restricted. It is necessary, perhaps, to call the attention of members of the Convention to the full effect of this clause. It is the foundation stone upon which the Constitution of the legislature of the State rests - different from the constitution of congress, where power is to be sought for in the express provisions of the Constitution of the United States. Here, in the Constitution of the State, the power if it be a legislative power is granted unless there is some other provision in the Constitution which forbids it.
MR. HERVEY. Mr. President, I move the adoption of this first section.
The motion was agreed to and the Secretary reported the second section as follows:
2. The senate shall be composed of eighteen, and the house of delegates of forty-six members. The term of office for senators shall be three years, and that of delegates one year, commencing, in each case, on the first day of October next succeeding their election. The regular elections for members of the legislature shall be held on the fourth Thursday of May. But vacancies in either branch shall be filled by election, for the unexpired term in such a manner as shall be prescribed by law.
MR. LAMB. If the gentleman from Kanawha wishes to bring up the subject presented in his special report, it will be necessary to begin here by laying aside the first clause of this section. It would only be necessary in reference to this section to pass by the first clause, the one that designates the number of members. The balance of the section might be acted upon.
MR. BROWN of Kanawha. I move to pass by, sir, the first clause.
The motion was agreed to.
MR. LAMB. I move the adoption of the rest of the section.
MR. SOPER. I move, sir, to strike out "three" in the eighth line, with a view of inserting "two."
If this motion prevails, sir, it will be followed by another to make single senatorial districts. That, then, will be followed, sir, by an amendment requiring the senators at their first meeting to draw lots, one-half of them will hold for one year; and the other half for two years; so that every year one-half the Senate will be elected, to be composed of two members. That is the object, sir, which I have in making the motion.
The motion was agreed to.
MR. BROWN of Kanawha. I will ask for a division on that vote.
MR. HERVEY. I believe the Chair decided the question.
MR. BROWN of Kanawha. If in order.
THE PRESIDENT. The Chair would be of the opinion that the call was too late.
MR. SHEETS. I move a reconsideration of the vote.
MR. BROWN of Kanawha. Would it be in order to submit a remark on that subject?
THE PRESIDENT. Oh, yes, certainly.
MR. BROWN of Kanawha. It occurs to me, Mr. President, that the Convention in voting on this subject of diminishing the number of years - we have just started into this report and clearly hardly considered the subject. I confess, sir, to my mind three years is the utmost limit we should have reduced it to. My inclinations are very strong that it should be enlarged instead of reduced, but I have determined not to attempt to alter the committee's report in that respect. But it seems to me that if we have any distinction between these two houses - or why have two houses? Why make any distinction at all? They are elected almost by the same constituency - unless we make some distinction in the length of time. It is a departure from the lengthy senatorial term heretofore in coming down to three years; and it seems to me there ought to be in a senate something more durable and permanent than in the house which now we have reduced to one year, and that mutation should not be written upon every line of our Constitution; that we ought to have an eye to something that is permanent and enduring, at least to some degree, in some department of the government. I should be very glad to see the house reconsider this motion and at least stand by the report of the committee if not enlarge it.
MR. SOPER. I hope the vote will not be reconsidered. The house of delegates will probably be composed of a large portion of new members and more or less of the old ones will be continued. The senate under the amendment just made will continue of old members for two years and the elections which will take place yearly to supply the vacancy may result in the re-election of the same individual. It necessarily follows that more or less of the members of the preceding legislature should be in the house. Why, sir, it is secured in the way I have named: One-half the senate certainly; and if we are to take the history of our country more or less members of the house of delegates are re-elected; so that the legislature will not be composed of entirely new members. That I suppose, sir, to be the great object of having the term longer in the senate than in the house. It is universal wherever I have been familiar with the divisions of the legislative department in this respect that senators have always been elected double the time of the house of delegates. It was so in Virginia. We elected our delegates for two years and we elected our senators for four years. In other states, sir, where they elect their house of delegates for one year their senators are usually elected for two.
The great object of it, if I understand it, is to have in the subsequent legislature more or less members who are conversant with the proceedings of the previous legislature and who understand the routine and manner of conducting business, so that I apprehend if we elect our delegates for one year and our senators for two, one half of them each year, every guard in reference to legislation will be provided for. For that reason, sir, I made that motion.
MR. DERING. Mr. President, I move, sir, that we pass by this section as a very important one and give the members time to think about it.
MR. STUART of Doddridge. We will have to settle the reconsideration first.
MR. LAMB. I would suggest to the gentleman from Monongalia the question to reconsider had better be acted on first even if the Convention then. pass by. That will leave the whole matter open.
MR. DERING. I withdraw the motion.
The motion to reconsider was agreed to.
MR. VAN WINKLE. That I understand leaves the motion of the gentleman from Tyier pending.
MR. SOPER. It stands without the amendment.
MR. VAN WINKLE. Yes, sir; but your motion is before the house.
MR. SOPER. I withdraw it.
MR. DERING. I now move, Mr. President, we pass by this section for the present.
The motion was agreed to; and the Secretary reported the third section as follows:
3. For the election of senators, the State shall be divided into nine senatorial districts, as nearly equal as possible in white population; each district to choose two senators. Every such district shall be compact, formed of contiguous territory and be bounded by county lines. After each census hereafter taken by authority of the United States, the legislature shall alter the senatorial districts, so far as may be necessary to make them conformable to the foregoing provisions.
MR. HERVEY. I move to pass by this section for the reason that its adoption depends somewhat on the construction of the previous one. We have determined the second section. The last sentence of the third section makes the senatorial districts conform to the arrangements of the second section. It seems to me we would be getting into difficulty by taking up this section and acting on it and leaving the other open.
MR. LAMB. Mr. President, before the Convention acts on that question, I merely want to make an explanation in regard to it necessary to enable the Convention to act understandingly upon it whenever it shall be considered. It must be taken in connection with the tenth section:
10. Additional territory may be admitted into and become part of this State, with the consent of the legislature thereof. And in such case, the legislature shall provide by law for the representation of the white inhabitants thereof in the senate and house of delegates, in conformity with the principles set forth in this Constitution. And the number of members of which each branch of the legislature is to consist, shall thereafter be increased by the representation assigned to such additional territory.
The nine sections here spoken of within the State are the nine sections constituted by the forty-four counties which according to the resolutions of this Convention are included absolutely in the State. If the counties on the other side of the Alleghany mountains, which are conditionally included, should become part of the State, then under the provisions of this report there would be eleven. Section 10 is a necessary qualification to the other part of the report. The counties on the other side of the Alleghany ridge would constitute two additional senatorial districts upon the same principle and same plan that is adopted throughout this report. There is but one word on that section which is necessarily involved in the minority report, submitted by the gentleman from Kanawha. The Convention, if they saw proper, might strike out the word "nine" and adopt the balance of the section, and leave the blank then to be filled when the minority report came up. The minority report, I understand, contemplates - how many does it contemplate?
MR. BROWN of Kanawha. The same number that the committee contemplated.
MR. LAMB. There are two plans.
MR. BROWN of Kanawha. But they contemplate the same number of senators.
MR. LAMB. The same number of senators but not the same number of districts, by any means.
MR. VAN WINKLE. I make the motion that so much of this report as relates to representation in the senate and house of delegates be passed by, in order that we may get the report of the minority and have time to look into this apportionment.
MR. HERVEY. I withdraw my motion.
MR. VAN WINKLE. Then I move to pass by all that relates to the legislature until we get the whole subject before us.
MR. STUART of Doddridge. I move to amend that by saying, to pass by the whole of it until we get it all before us. I think we can act better by having it all before us.
MR. VAN WINKLE. Well, I think it will end in that. I will accept the amendment.
MR. HALL of Marion. I would inquire what it is we pass to. I would like to know that before voting on this question. If we have any other matter that is brought before us for action, I might vote for the motion; if not, I cannot.
MR. DERING. I am in favor of passing by the whole report, sir, and request that we shall get a vote on that subject.
MR. BROWN of Kanawha. I think, Mr. President, to waste another hour by adjournment, as we did yesterday, is hardly proper. I think there is a large portion of this report that is not involved in anything suggested in the minority report that we can act upon now as well as ever, and on these sections I think we had as well proceed to work, and I am in favor of doing it. I know no better time than now.
MR. BATTELLE. I really think there is very much of this report that can be acted on now just as well as at any time, and I hope the Convention will do so.
MR. CALDWELL. I see that it is within three minutes of the hour of taking a recess. That clock is wrong by one hour. I do not see the propriety of passing it by.
THE PRESIDENT. It is so near the time the Chair should be vacated that the Convention will take a recess until half past three o'clock.
The Convention reassembled at the appointed hour, the President in the Chair, who stated that when the house took the recess the subject of consideration was the motion of the gentleman from Doddridge to pass by the further consideration of the report.
MR. STUART of Doddridge. It was the motion of the gentleman from Wood. He accepted the modification of it I offered. He accepted my modification.
MR. POMEROY. I hope that won't prevail. I see by looking at different sections, I think, if we would pass over to about the eleventh section we could then proceed. I hope the motion to pass by will not prevail.
MR. STUART of Doddridge. It strikes me, Mr. President, we could get along much better if we had our report complete and we could commence with it and take it section by section, as the rule we first adopted. We would make time by doing so. I may be mistaken. I desire to make time.
MR. HALL of Marion. If there was anything else before us, I should not object; but as there is not, I do insist we should be at work, and there is no reason why we shall not proceed with that portion of the report not connected with the proposed minority report, which as I understand has reference to only the matter of districting and the number of districts for senators. A considerable portion of that report before us is as ready for us as it will ever be. I am willing to take it crawfish fashion, or any other fashion, so we go ahead.
The motion to pass by was rejected.
MR. POMEROY. I move we take up the eleventh section.
MR. DILLE. Why not take up the ninth section? I see it is -
MR. POMEROY. Well, I think the committee and the Committee on County Organization are rather in conflict there. We passed something in regard to the formation of counties in the Committee on County Organization. I would rather we would pass to the eleventh.
MR. STUART of Doddridge. Has that report been handed in?
MR. POMEROY. The report is made out but not handed in.
MR. STUART of Doddridge. Well, sir, if we take up some other section it will conflict with some other man's report.
MR. DILLE. Why not the tenth?
MR. LAMB. Mr. President, it strikes me in taking up the report, we had better go back to the second section, omitting that portion which fixes, the number of the senate and house of delegates, and go along as far as possible.
THE PRESIDENT. What is the gentleman's motion?
MR. LAMB repeated what he had said, and added: I suppose there is enough of that section to occupy the house for the balance of this afternoon. I make that motion.
MR. DILLE. I second that.
The motion was agreed to.
The Secretary reported the section (omitting the first sentence) as follows:
2.******. The term of office for senators shall be three years, and that of delegates one year, commencing, in each case, on the first day of October next succeeding their election. The regular elections for members of the legislature shall be held on the fourth Thursday of May. But vacancies in either branch shall be filled by election, for the unexpired term, in such manner as shall be prescribed by law.
MR. SOPER. Mr. President, if it is in order, I renew the motion to strike out "three" in the eighth line and insert "two."
MR. STUART of Doddridge. I would call the attention of the member from Ohio to the fact that this third section was the one reconsidered by the gentleman from Kanawha and we took up the very subject on which he moved the reconsideration. It was made in order that he might present his views on this question and it was passed on his suggestion and he is not therefore present.
MR. SOPER. Mr. Brown is not present, and therefore I think it had better be passed over again.
THE PRESIDENT. Does the gentleman withdraw his motion?
MR. SOPER. Yes, sir.
MR. STUART of Doddridge. I was just calling the attention of the gentleman from Ohio to this fact. I think as a matter of courtesy we ought not to take up this section now.
MR. VAN WINKLE. I can make a motion to amend this, sir?
THE PRESIDENT. The recollection of the Chair is that the gentleman from Kanawha had moved to pass by this section; pending that motion, the gentleman from Wood moved to pass by the consideration of the whole report, and the gentleman from Kanawha accepted that amendment.
MR. VAN WINKLE. The gentleman from Wood moved to pass by all that related to the legislative department, and the gentleman from Doddridge moved to amend by passing by the whole report. But that does not reach the case of the gentleman from Kanawha. He is a member of the legislative committee and he has handed in a minority report, and it seemed proper that the Convention should wait until they got the minority report that they might know what the alternative proposed was. But the gentleman will probably be here in a few minutes.
MR. STUART of Doddridge. What I want to call to the attention of the gentleman from Wood was that the movement to reconsider was made on motion of the gentleman from Kanawha - to reconsider the vote on striking out 2 and 3.
MR. VAN WINKLE. The vote was to reconsider, and the gentleman from Tyler then withdrew his motion.
MR. STUART of Doddridge. The gentleman desired to state his reasons.
MR. SOPER. I have renewed my motion and again withdraw it.
MR. VAN WINKLE. Then there is nothing before the house except to take up the section.
I was going to say, sir, that to save time in a matter in which we do not know that the gentleman from Kanawha has any particular interest, if there is no other motion, that report comes up in order - that I will make a motion in reference to the day fixed for the election. It is fixed for the fourth Thursday of May; and as I understand the Committee on the Legislative Department were of opinion that that time would best suit our agricultural population. The matter was discussed in the committee and they decided that some time in October would be better; and I will move to substitute for the fourth Thursday of May the second Thursday in October. That is a matter, I apprehend, upon which gentlemen could let us know what they suppose would be the wish of their constituents - that is, what time would suit the agricultural population best. The population in the cities and towns of course it doesn't make much difference what you fix. But my own impression is that a day in the fall would suit better than a time in the spring. I will, therefore, move - and any gentleman can move to substitute for my motion another day, unless they prefer the day reported by the committee, the fourth Thursday of May, in the twelfth and thirteenth lines - the second Thursday in October. Thursday seems to be the day for holding elections, and it is better as being farther removed from Sunday.
According to the suggestion of those in my vicinity, I move to strike out the fourth Thursday of May and to insert the second Thursday of October; and, of course, any gentleman, if he chooses, can call for a division of the question, so that the motion may be of striking out; and if the motion to strike out is decided in the negative, it will be indicative of the opinion of the Convention that the fourth Thursday of May is the best day. On the contrary, if it is decided in the affirmative, it does not indicate that they are in favor of the second Thursday of October, for any other day may be named to fill the blank. But if they think the fourth Thursday of May is an inconvenient time for the farming interest -
MR. HAYMOND. I am a farmer when I am at home, and it would suit the farming interest best to have the election on the fourth Thursday of May. We plant our corn the first of May, and the latter part of May is rather an idle time. I am satisfied that is the best time to have the election. In October we are all busy seeding. We could not spare the time. I am in hopes the fourth Thursday of May will be adopted.
MR. LAMB. All I can say in reference to this matter is that the subject was very deliberately considered in the committee. I know nothing at all as to the question which would be the best day to accommodate the farming interest by the object of the committee was to accommodate that interest in the day they fixed. They thought that the day they had reported would better accommodate them than several days that were suggested. I have myself no information on this subject and am not able to speak upon it.
MR. STUART of Doddridge. Mr. President, I am a farmer and sort of a, politician and lawyer. I can view the whole ground (Laughter).
MR. VAN WINKLE. You don't know anything about it.
MR. STUART of Doddridge. And I can say to my friend from Ohio he must not accuse me of hankering after the flesh-pots of Egypt because I want to stick to the old day (Laughter). The gentleman proposes to strike out the fourth Thursday in May and insert the fourth Thursday in October.
MR. VAN WINKLE. The second.
MR. STUART of Doddridge. It strikes me the fourth Thursday of May is a time of more leisure to farmers than any other that can be fixed upon. So much for the farmers; now for the politicians. Election comes on the fourth Thursday of May. The citizens of our country meet in the spring with their musters and their courts and they can examine the qualifications of those who propose to ask them for their suffrages - they can see their candidates. Make it the second Thursday in October, the months of August and July come immediately before October and September. But that is a bad time in the year, sir, when people do not congregate together. We never have any musters; we hardly ever meet at court; a man only goes because he has some special business to attend to. And it does seem to me as a matter of interest and policy that we should fix on a time that the people may have more leisure time to investigate and examine the qualifications of persons who ask for their suffrage. That is my honest opinion about it.
Then, sir, if it is as convenient for the farmers on the fourth Thursday of May, it has other advantages that it strikes me ought to be retained. Now, sir, if you want to start out and see your friends, you know we are districted in some considerable boundary of country here. I would like to see gentleman that would have the courage to introduce himself to the citizens of a large district in the month of July. Meantime our citizens would be called on to vote for men whom they never saw. Well, so far as I am concerned, I am always anxious to see a man before I vote for him. I am not anxious for electioneering, but I like to see a man first. Well, I could not be expected that we would have an opportunity of seeing a man in the months of July and August. Why, sir, if we wanted to have a speech from a gentleman in the months indicated, there is no man that could hardly perform the duty. He could not get a congregation to speak to; people would not be out. There would be none of our musters, none of our attendance at court; and the candidates would not be able to see anybody unless they would ride around under a meredian sun from house to house, and then they are engaged in their harvest and do not want to be bothered now, if it is of no importance for the citizens to know who they are called on to vote for, why, then, it is not of any importance when you fix it. But that is an important matter.
MR. MAHON. I can say too that I am a farmer, and I think, sir, that the resolution offered by my friend from Wood county would meet my views as a farmer, and the argument of my friend from Doddridge is a very good one to support my view in reference to the matter. The election coming off on the fourth Thursday in May, in my section of country, I think is very unfortunate. And so far as fixing a day to suit politicians, I am not willing, at least, to inconvenience the farming interest to accommodate them. In our section of the country I find that our crops at this season of the year are advancing and need work. And if we expect to raise anything in our section we have to work our crops; and I have been exceedingly annoyed in May by our candidates visiting us (Laughter). Very much annoyed. Why, there sometimes in our section of the country you will see them every day in the week, and if you are not very careful and go to church, you may see them on Sundays. But, sir, in the fall - say in October - our work on farms there is pretty well done up. Our seeding is generally over by the second Tuesday of October and from the arguments of our friend from Doddridge and from my own interest I shall vote for the resolution.
MR. SOPER. I would remark that there is not a state in the Union in which its annual election is held in the month of May. There are some in which the election is held in March and April and in June a number; and in the months of October and November there are several states that hold their annual elections. So far as the fourth Thursday in May is concerned, it is a busy month for farmers. I am satisfied, too, from personal knowledge, not from any great experience I have had on the subject. And as for the politicians, if they are as vigilant in their pursuit as my friend from Doddridge is, they do not regard rain or sunshine, heat nor cold; and they will accommodate themselves, sir, let the election be either in May or October. I should prefer myself to see November. Say the first Thursday, if you please, in November. After that all farming work is through. The courts are generally through. It is intimated by some gentlemen that we are to have four circuit courts in every county in the year. If so there certainly will be congregations of the people who can well inform us of the merits of the candidates if the election is held in November as well as if in May. Well, then, again, I would have the legislature here commence on the first of January following, if I had my own preference, waiting till all the holidays were over before the legislature met to engage in their business. If we had the election in the latter part of October or the fore part of November, I would prefer to have the legislative year commence the first of January. For these reasons, sir, I shall vote to strike out.
THE PRESIDENT. Does the Chair understand the gentleman as asking to divide the question?
MR. VAN WINKLE. The motion is on striking out and inserting.
MR. SOPER. I do ask for a division of the question.
MR. VAN WINKLE. I should like, sir, to say that I have no personal interest in the fixing of this day, because living in a town one day is the same to me as another. But I would like very much that this day might be fixed in such way as to suit the farming interest; for I have a very strong desire that whenever we do have an election, no matter what, that there should be a full expression of the opinions of the people who are entitled to vote. And, sir, I would add that I was very desirous to hear all the farming interest had to say on this question. I am not so desirous to hear what the lawyers have to say. My friend from Doddridge - and I am sure other gentlemen will agree with me - when he does express himself, he does it after due consideration and with singleness of purpose and only with a view - as I profess myself - to do that which is best for the whole; but still, sir, he cannot, although he lives in a region of farmers, so we will understand what would suit that class best, which is the one to be accommodated here, as the farming gentlemen themselves; and I hope they will feel free to express themselves on this occasion. Perhaps to a majority of this Convention the day may be a matter of indifference, but to those who represent the great farming interests, in which the bulk of the voters consist, it is important that a day should be fixed that would suit, or on which they could with the least inconvenience to themselves be able to attend the election, so that on every occasion we have a full, free and candid expression of opinion. That is, sir, under the Constitution we have made so far, the principles we have already introduced it is the people who are to govern in this new State, and it is they that are to be accommodated; and I trust hereafter we shall understand at the polls precisely what the wishes of the people are.
MR. HAYMOND. I am still in favor of the fourth Thursday of May. My friend from Jackson says they have to work their corn in the latter part of May. Now, sir, I don't know what time they plant corn in Jackson; but we plant our corn in May and work it in June. The gentleman from Tyier prefers November because farmers have no work to do. I don't know how it is in Tyler, but the people in Marion have to gather their corn in November and that is about as much as they can do.
MR. HAGAR. The gentleman from Wood wished particularly to hear from us that farm. I think there is a better time than May or November either. We usually plant corn in May but sometimes people don't get done against the election and hence they cannot go. Others plant forward and have a piece they are most obliged to work about that time. And then in addition to all this, those who observed several years ago when all the offices were to be filled at the election in May, know that there is a great deal of time lost with the candidates and people in their farming business, and much indeed by the candidates coming; and indeed they were so numerous that it was reported the dogs would not bark at them they got so used to their passing (Laughter). Now, I am of the opinion that August would suit the farmers better - the fourth Thursday in August. The farmers make it a rule to rest in August.
MR. VAN WINKLE. I would simply state the fact that nearly all the southern States elect in August; the western and eastern in the fall - in October. I do not know what the reason is but the fact is that nearly all the southern States from Kentucky down, elect in August. Now, I would like that these farming gentlemen would enlighten us on that subject.
MR. HAGAR. I am surprised that Kentucky hold their election in August. But it seems to me it is the most leisure month. Men get their crops laid by against the last of August and it is too soon to go to cutting up corn or sowing wheat, and I think it would suit the farmers best. Now so far as the politicians are concerned, if they are anxious for office they can go about in the month of August and stop at the farmers' houses under the shade in the yard and they can talk all about it. Hence I shall go for striking out and inserting some other time (Laughter).
MR. SIMMONS. Inasmuch as the gentleman from Wood desires to hear from farmers, I am a farmer and I am really astonished at the gentleman last on the floor for saying that the month of August was the most proper time. I cannot see why it is the case, unless the weather is so extremely warm that they cannot work any there. In our country this is one of the most busy months we have. Our citizens cut little of their hay until after the first of August and during that month there is more made than in any other month of the year. A good many do not finish till the first of September at least. Then their corn is ready to cut and then their seeding comes on and we have no leisure time in the fall of the year whatever. I think the fourth Thursday in May will undoubtedly suit our citizens better than any other month in the year.
MR. STEVENSON of Wood. I don't profess, Mr. President, to be much of a farmer; and I am a good deal worse lawyer; for that I don't know anything about and I know a little about the other. I would just say, sir, that the fourth Thursday of May is the established day of holding the elections in the state. I doubt the propriety of changing it unless for very good and substantial reasons. But if the only one that can be adduced is to accommodate the farmers, I think the reason not sufficiently strong. The fact is that farmers are just about as busy in the month of October as in the latter part of May - at least in the region of country where I live, and I think generally within the limits of the new State. And they are very busy, too, in the month of May. But if the elections are to be held in the spring I think the fourth Thursday in May is about the best day for farmers you could select. The hurry and bulk of the spring work is over about that time, although there is a great deal that follows it. But there is a space of time between the latter end of May and the beginning of June when they have usually a little leisure. I do think, sir, if there are reasons in favor of changing it, they are not sufficient to justify abolishing the usage which has become fixed in the state. I think it better, taking all matters into consideration to retain the old day.
MR. DILLE. Really, I am very much in favor of striking out. Not that I am in any way personally interested. But so far as I have heard an expression from the people that I have the honor in part to represent, it is precisely that they are opposed to spring elections. And, really, if I was to regard my personal observations on that subject, I am satisfied that spring elections do not suit our people. Really, so far as the region of country where I live is concerned, the people plant their corn during the month of May. A great deal of it - especially new ground - is not planted until the latter part of May, and a great deal of oats is sown in the month of May. Our people are extremely anxious on this subject - a great many of them - they are desirous to have a change. They have been talking about this thing for a year. I am satisfied if I was to fix a day - if I was to consult the interests of the people of Preston county, that the fourth Thursday in October would suit them best, or any time in the month of November. It is said that is a busy time, but look at the character of the work at that time. Our harvests are made. Our harvests are gathered, and the farmer can truly say his harvest is over; and he feels glad, especially if he has a good crop; and he feels more disposed then to attend elections than just on the eve of commencing the labors of the season. He has his corn to cut, it is true; but against the second or even the fourth Thursday, corn is all cut up and ready to be husked; and any farmer has his seeding done against that time - in our country, at least - and has nothing to do only to leave his corn and attend the election. It seems to me it is the most favorable season, taking everything into consideration. Further than that, I think it connects more nearly with the year upon which its officers will enter upon their duties. Now, I am like my friend from Tyler; I would suggest that these officers enter on their duties about the first of January. Or supposing they enter on them in October; there seems to be a long interval between the time of their lection and the day they enter on the duties of the offices for which they are elected. I would suggest that, really, it would be better that the space of time between the period when these officers are elected and when they enter upon the duties should be diminished rather than increased. I am satisfied that October is the most favorable time and shall vote for striking out.
MR. SINSEL. So far as I am concerned myself, it would make no difference to me spring or fall; but as I contended strongly for the fourth Thursday of May in the committee, I would fail in the discharge of my duty to say nothing here. I contended for it simply because I believe it suits the farming interests that I represent better than any other time. People in that country, some few of them, all commence planting their corn the last of April and finish sometime in May. Well, there is a little space between the time that they finish planting corn and the time they commence working it that they have a little leisure. It is true, those who plant very early will commence working it before the election; but they are comparatively few. Well, all along that will be the case - all along the mountain regions. The counties bordering on the Alleghanies, they do not think of planting corn there before the 20th or 25th of May and will not commence working until after the first week in June. It may be a little different with the counties lying along the Ohio river. Well then, in the fall they commence in the latter part of August and September to break their fallow, sowing their wheat, getting out their grain, and by the time the second Thursday in October comes round they are busily engaged in cutting up their corn and saving their fodder. It is right in the midst of it. And I think the fourth Thursday of May will meet the wishes of the people I have the honor to represent better than any other time.
MR. VAN WINKLE. I was a good deal anxious, sir, the farming interest should have settled this question for itself, but what we have heard reminds me of an anecdote of an agricultural community that hired a parson to attend to their religious matters. And particularly, they made a bargain with him that he should pray for rain whenever they requested it; and I suppose it was implied in the bargain that he should procure the rain. His wife attempted to dissuade him from entering into such a contract. Nevertheless, he made it. Well, in a week or two there came a dry spell and they called upon the parson. Well, he summoned them to meet him in the church; and he told them as a preliminary that it was necessary they should agree on the day when they wanted the rain. Well, one of them proposed they should have the rain on the following Monday. Well, Jones said on that day he had his hay to haul and it wouldn't suit him at all. Then Tuesday was proposed, but Mr. Smith said Mrs. Smith had arranged to go and visit a family on Tuesday and it would be a great disappointment. Well it went on time to time, and the parson had a very easy time of it for they never agreed when they wanted the rain; and I am afraid it is so with our friends, the farmers, about this election (Laughter). It is said that no kind of weather suits the farmer, and I am afraid it is pretty much the case in fixing an election day and we gentlemen of the Convention who are not farmers and do not understand the thing will have to vote pretty much at random (Laughter). I think perhaps we might as well take the vote (Laughter).
The motion to strike out was rejected.
MR. LAUCK. Would any motion be in order in reference to this matter? I just came in; but I learn from the discussion that it was in reference to the matter of the time of holding the annual elections.
THE PRESIDENT. I would inform the gentleman from Wetzel that the question just disposed of was a motion to strike out the fourth Thursday of May with a view of inserting another period, which motion was lost.
MR. LAUCK. I rise, then, to make this inquiry, can any other motion be made now or is that day settled and fixed?
MR. VAN WINKLE. It could come up when the question comes up on final passage but not now.
MR. LAUCK. I think the holiday times would be a good time to hold elections.
THE PRESIDENT. The report will be passed over again, and there will be other opportunities.
MR. VAN WINKLE. Mr. President, the fourth Thursday of May being now, as I consider, fixed, I will move to change in the second clause - the term of senators shall be so many years and that of house of delegates one year - commencing on the first day of October. It seems to me the interval between the fourth Thursday of May and the first Monday of October is longer than necessary. I would move, sir, in a patriotic spirit, that they commence on the fourth day of July next succeeding their election. The necessity of this is proved by a circumstance of recent occurrence in the history of this State. I think it was in 1857, when the commercial revulsion took place, which commenced with the failure of the Life and Trust Company of Cincinnati - which was a New York institution, however. The banks, many of them, suspended specie payments, including banks in Virginia. Circumstances were such that in the opinion of the executive an extra session of the legislature was required. He undertook to call it and the question immediately arose and was discussed considerably in the papers throughout the State, and it was which set of representatives should be convened. Elections had been held in the preceding spring, and there was nothing in the existing constitution to determine when their terms commenced. It was finally decided that the terms of the first set did not end until the first of October. I do not remember on what ground but probably because the fiscal year ended at that time. The result was that the old legislature were convened to meet at that extra session. Well, if another case of that kind should arise it certainly would seem to be better that those who had been elected most recently and were freshest from the people should constitute the legislature for such a purpose; and that, sir, is the ground of my motion that the fourth of July would not be too soon for their terms of office to commence. The change could take place on that day; and if another case such as I have adverted to arose, the matter would be abundantly settled on the face of the Constitution and if the governor had occasion to call such an extra session, he would call the legislature most recently elected.
MR. LAMB. The explanation in regard to the intention of the committee in fixing a day has already been given by the gentleman from Wood. It was that the term of the legislature might be so fixed in the Constitution that in case it became necessary to convene a special session, there could be no doubt which set of legislators would be convened. It was fixed on the first day of October by the committee with reference to the commencement of the present official year, and with the expectation that some uniform fiscal year would be fixed not merely with reference to the legislature but with reference to all other officers, at which official terms should commence and terminate - the executive officers, judges, etc., to have one uniform and official year. With the present official year the first of October is the best time I cannot say, or what was the special reason for fixing it at that time. But there should be some day at least that we could follow; some uniformity in this matter; and have one day fixed for the commencement of the official year and carry that through if we can.
MR. CALDWELL. My recollection is, sir, that before we took a recess this section was passed by. I did not suppose it was to be taken up until we had the balance of this report before us. I would prefer that we had all the report printed so as to examine it before we acted at all on the report; and that was my understanding this morning.
MR. VAN WINKLE. It was taken up by the Convention. I apprehend, sir, that the naked question now under discussion should not be affected by anything that is in the other report, so far as we have had an intimation of the contents of it, and it is one while we are here we may as well dispose of. I think we will rather save time.
THE PRESIDENT. I would remark to the gentleman from Marshall that when the Convention took a recess it had under consideration the proposition to postpone; that that was not then decided; and it was acted upon in the evening session. The subject now under consideration in the opinion of the Chair would not be affected by the report, as he understands, that is to come in yet. The gentleman, however, could effect his purpose, if he chose, by a side motion.
MR. CALDWELL. I would prefer that this section should pass by. I am with my friend from Wood in the first motion he made, about the day of holding the elections. The evidence before me is that it was a close vote in which the other side decided against the propriety of striking out. I only regret that when my friend from Wood made the motion he did not use the argument he made when last up, because I think it goes to show the propriety of changing from spring until fall. I would therefore ask my friend, sir, if it would suit him to defer this matter until this section comes up regularly again. I want to give the members of the Convention an opportunity to reflect on the subject. I am so strongly inclined to the opinion, sir, that the fall is a better time for holding the election than spring, that I desire an opportunity given to the members to reflect on the subject before it is finally decided; and until that is definitely decided, we cannot, I think, fix the time for the commencing of the terms of these legislators.
MR. VAN WINKLE. My own impression, Mr. President, is that it is of more importance that a time should be fixed in the Constitution than as to what precise time it shall be. I, of course, would be willing to defer to any gentleman who is not prepared to act on the question, though it still seems to me almost isolated and not dependent on other questions not likely to arise. We know that custom, habit and the very condition of things is so arranged that the legislative sessions will be held in the winter undoubtedly. I believe there is not an exception to that unless in a single state that holds two annual sessions of its legislature (Connecticut) in the United States. And it is only in reference to the possibility of an extra session of the legislature that this becomes important.
I, of course, do not want to thwart any gentleman's views; but I am not myself convinced that there is any impropriety in acting on this at this time.
MR. LAMB. Mr. President, I would suggest that after we get through with this, the question comes up on the adoption of the whole report our rules have secured to any member the right to move amendments at that stage of the proceedings. The votes which are taken at present are nothing more than a mere indication of the present sentiments of the members of the Convention. Each man will be, of course, at perfect liberty to alter his opinions on any subject on which he votes and to vote differently next time. The matter is not irrevocably fixed at all by any vote we have taken. But if we are to consider the report at all, I would like to gather in this stage of the proceedings as well as we can what are the sentiments of the members of the Convention about these points about which I myself know very little. I may, perhaps, refer to one fact in this connection: the Committee on the Executive Department, in its report, fixed the first of January as the commencement of the term in that case. Whether it would not be better to have a uniform official year will be for the Convention to decide.
MR. STEVENSON of Wood. I do not know that I exactly understand the amendment of my colleague in reference to the official year beginning on the fourth day of July.
MR. VAN WINKLE. The members of the legislature elected on the fourth Thursday of May will be members on the fourth of July and in case an extra session is called those members would be summoned to the seat of government. As it stood, it was in doubt which, the old members or the new, should attend.
MR. POMEROY. I hope we will pass over this, Mr. President, owing to circumstances now before us. If the Convention, as suggested by the gentleman from Marshall - if when there is a full Convention they should concur and fix some day in the fall of the year instead of May then this motion of the gentleman from Wood would not appear to be appropriate. I notice that the gentleman from Kanawha is in now, and we could take up the other section which we had under consideration, which would consume the remainder of this evening's session no doubt, and then we would be able to take the sections as they go.
MR. STUART of Doddridge. I hope we will not pass it, sir. We have now had it under discussion some time and it does appear we discussed the day of holding the elections as long as we pleased. I confess I was sufficiently used up (Laughter).
MR. POMEROY. The gentleman from Doddridge did not understand me. The question we wish to get at now is a motion made in the forenoon session by the gentleman from Tyler to strike out the word "three"; and that was reconsidered and it was passed by in the afternoon session in order to accommodate the gentleman from Kanawha, at whose instance it was reconsidered, and it was thought proper not to take that matter up in his absence.
MR. STUART of Doddridge. We have progressed with the discussion in this matter, and let us decide it while we are at it.
THE PRESIDENT. The Chair would remark to the gentleman from Hancock that it is the understanding of the Chair that these matters so considered in the report can again be reviewed when we are passing over the report and that the changes that members may now wish to introduce out of place can then properly come in again as they did on the other report. And it is an unfortunate state of things when they call up so many motions as they do; and the Chair would request members of the Convention when they rise while another is on the floor that either the one or the other will give way. The Chair has found it often the case within a few days back that two members are standing at the same time speaking. If the member who has the floor intends to give way, he hopes it will be promptly done. If not so, he hopes the member who rises to the inquiry as soon as he sees that the other does not give way will take his seat. Of course, no complaint is raised in this.
MR. BROWN of Kanawha. I desire to acknowledge the kindness and courtesy shown to me in my absence. I have just learned the subject under consideration, to strike out Thursday of May and insert October, and it strikes me I shall vote for striking out and inserting.
Mr. Van Winkle's motion to strike out first of October and insert fourth of July was then put and agreed to.
MR. VAN WINKLE. I should like to ask the consent of the Convention - I want to introduce what is probably a new rule of order here. I am reminded of it. I had drawn this resolution in the course of the morning and I am reminded of it by the remarks of the President - in reference to another portion of those remarks - that there is a certain responsibility devolved on the President and I should like that he would assume it. When two gentlemen arise, it is the express duty of the President to decide between them; and when it is not very palpable who did rise first, the parliamentary rule is that the gentleman farthest off has the floor. We feel, sir, that we have our responsibilities, and we only want the Chair to encounter his share of the responsibilities. I, however, am reminded by the remarks of the Chair of an opinion that has struck me two or three times, that the members generally do not seem to appreciate the condition of these debates. To those who are familiar with legislative proceedings, there is no trouble; but as many of us are for the first time in a deliberative body, it may be more difficult. We have substituted for the committee of the whole a form of proceeding which answers the purpose - I think a great deal better - and is not liable to many of the objections which attach to it. That is to say, in reference to these reports that are made from the various standing committees, these reports are precisely in the condition of a bill brought into either house of the legislature to be made into an act. They have their three readings in those bodies. On the first reading amendments are in order, on the second reading amendments are in order; and on the third reading amendments are also in order but very seldom offered. We first come up with these reports, crude it may be. The committee no doubt have endeavored to make it otherwise; but with the variety of opinions that must prevail it must not be supposed that any committee is going to hit the mark in every instance. We take it up section by section; gentlemen propose amendments; and, as has been said, it is usually allowed the friends of the measure - the committee and some others probably uniting with them to procure that measure - to add any amendments that circumstances seem to demand. The view in which every gentleman should consider it is this: if this section pass, although I am opposed to it as a whole, yet in what form would I prefer it? I might be opposed to the section we are discussing and yet if there was a possibility that it might pass this body I would still have my preferences as to the form in which it should pass. If these days are to be fixed, I might have a preference for a day and yet I might be of opinion that no day ought to be fixed. But still, if a majority are interested in fixing a day, still I am interested in saying what day shall be fixed. Well, our rule is that it comes up again on the adoption of the whole report; and when it comes up, then any gentleman is at liberty to strike out and insert. Now, sir, on that second consideration of a report there will the test question be; and it is in reference to that, that I wish to offer a resolution that I hold in my hand. A third consideration will be given to it after the committee on revision has acted on it and while only, perhaps such amendments will then be in order as relate to matters of verbiage and form, yet still it will be about equivalent to a third reading of a bill in either house of the legislature. The members, then, have three opportunities to get the report into a permanent shape. Well, sir, as I do not consider that the action on the report on its first reading is of such importance as to call for a great deal of discussion - or feeling, at any rate - on the subject, I have prepared a resolution with the hope of expediting business, considering that on this first reading - what I call what we are now doing - it is not so important what is then done, because the matter is again to be revised by the Convention. That resolution I will read.
"RESOLVED, That on the first reading by sections of a report, from a standing committee, it shall not be in order to call the ayes and noes."
A gentleman offers an amendment to a report on its first reading with a view of perfecting the section. If that section is to become a permanent part of the Constitution, he would like it as perfect as possible, while at the same time he will be opposed to the whole section. I think, therefore, sir, that it is not necessary, nor does not indicate what the ayes and noes are generally called for - in order to test the final opinions of members - that they should be called upon the first reading. I drew up that resolution from finding one in the journal of the convention of 1850. They went into committee of the whole. They prohibited the calling of the ayes and noes in committee. I believed they are not called in Congress when they are in committee of the whole. It will certainly save time to dispense with them on this reading. When it comes up on the second reading, and other provisions have been adopted it will indicate what shape the report will take; and no member can finally make up his mind until the whole report on the subject has been considered. I think the members will find that the resolution I have offered will do injustice to none, it will be a test of their opinions under the circumstances but not a final test of what they would wish. After we have licked it into shape - after we have considered the various items and points, then the report comes up to us as a whole. What may have been objectionable in the first instance, may by the introduction of amendments in other parts of the report have become acceptable to us. What we may not have seen the necessity for as an individual proposition we come to see the need of after other provisions have been introduced. And I think, therefore, sir, the Convention will probably agree with me that as the ayes and noes are only called to test the actual opinions of members, that they will be willing to dispense with that call on this first reading.
THE PRESIDENT. Does the gentleman from Wood propose to lay on the table and take up this resolution?
MR. VAN WINKLE. It is a question of order and I don't know but it is always in order.
MR. HERVEY. I would call the gentleman's attention to the nineteenth rule and inquire whether it could be set aside in that way.
The secretary read rule nineteenth as follows:
"Any member (seven others concurring) shall have a right to demand the ayes and noes upon any question, at any time before it be put, and in such case, the names of the members shall be called by the secretary, and the ayes and noes entered respectively on the journal; and the question decided as a majority shall thereupon appear. But after the ayes and noes are separately taken, and before they are counted and entered on the journal, the secretary shall read over the names of those who voted in the affirmative, and those who voted in the negative, in order that any mistake in the listing of the names and votes may be corrected."
MR. VAN WINKLE. My motion is to amend the rule by inserting this as an exception to that rule. I stated when I first arose that I wanted to amend the rule by introducing this. The rules are always in the power of the Convention.
MR. HERVEY. Yes, sir; but they could not be set aside.
MR. VAN WINKLE. I move to amend the rule by adding, except in such and such cases.
MR. STUART of Doddridge. I desire to call the attention of the Convention, and I think if they will reflect on what has passed they will vote against the resolution. I believe we have taken up but one report and gone through that report. I recollect that was the report of the Committee on Boundaries. Well, sir, after we got through it section by section, we turned back. Well, sir, I believe there was little or no amendment; a great many questions raised, and argument. I for one was very desirous to see the yeas and nays on a great many questions raised which would not have been called out if the yeas and nays had been called only on the final passage of the report. We may be willing to vote for the entire report, when there are many features of it we would vote against and think very objectionable and desire to see the yeas and nays taken upon.
MR. POMEROY. I concur very fully with the gentleman from Doddridge there may be sections in a lengthy report like this that we may all approve of and yet the report, when it has all been gone through with when the yeas and nays would be required, might feel constrained to vote against the whole report, or in favor of it while there were certain sections we did not approve at all. The report having all the sections together might be of such a character that I would feel constrained to vote against it and record my vote; and yet there might be certain sections that I might desire to have my vote recorded the other way. On the boundary question, there were different sections on which we wanted to have our votes recorded, and we will perhaps look back with pleasure to that record. Now, if it was in regard to particular clauses of a section, I would offer no objection to the plan proposed by the gentleman from Wood; but I think members will find they will consume more time if this plan is adopted than by the present; because if a member feels that a certain resolution is contrary to his wishes, when it comes up on the second reading he will feel bound to offer an amendment and on that amendment will feel bound to call for the yeas and nays.
MR. VAN WINKLE. It does not prohibit on the second reading.
MR. POMEROY. But we would consume as much time on the second reading as on the first. After we pass through a section, I think from the past experience of this body, those of us that are out-voted feel disposed to submit and let the thing pass. Sometimes we vote with the majority and sometimes with the minority; but sometimes it is a very difficult matter, and difficult for the Chair, by the saying of aye and no to decide which is the majority. He says he thinks the ayes have it by the sound, or the noes; and it is very easy to be mistaken in regard to that. Different times I listened with all my ears and I could not tell which party was in the majority; and I think the most proper way of taking the vote on an important matter, where there is some great principle at stake, that we ought to require the yeas and nays, provided the constitutional number required by the rules second the demand. And I feel constrained to oppose the motion of the gentleman from Wood.
MR. VAN WINKLE. I think the gentleman from Hancock does not appreciate my reasons. I say that in voting on a first reading the gentleman is voting on a hypothetical proposition. That is to say, a gentleman considers this: if this resolution, or this section, to which as a whole I am opposed, is to pass, I nevertheless wish it to be modified; I wish it, if it is to pass, to be brought into the least objectionable shape possible. Therefore, I say that a gentleman's vote upon the first reading does not indicate his real opinions of the merits of the section. Now, here is a section that a large minority of the Convention may be opposed to, as it turns out in the end. Nevertheless, a member says that that resolution may pass, and if it is to pass there is some feature in it that is more objectionable than it might be made. He therefore moves to strike out and insert something by way of making it more palatable to himself. He votes on the hypothesis that it is about to pass. Nevertheless, it may be stricken out. The gentleman from Hancock seems to misapprehend this; that when we come up on the second reading we have by a rule adopted in the beginning in deciding between the committee of the whole and another form of proceeding, the question is not solely on the adoption of the report as a whole; it is allowable for any gentleman then to move to strike out and insert. Now, we will suppose that a section was in the original report. We will suppose that the gentleman himself was opposed to it but nevertheless that he could make it less objectionable only to him than it was as reported, but on the whole he is yet opposed to it. He then moves to strike out this section. And there they vote their actual opinion as to whether that should be retained as a part of the Constitution or not; and there it is fair that their vote should go on record and be transmitted to remotest posterity. But is it as fair that gentlemen in voting upon expediency simply, or upon hypothetical supposition, that the section may finally be adopted - is it as fair that their votes should be recorded? I make no objection to the recording of any of my votes. But the calling of the ayes and noes occupies considerable time, and it is frequently resorted to for purposes of delay in these deliberative bodies. I object to no delay when a good end is to be attained by it, but when delay is sought for purposes of delay I do object. And as the vote on this first reading actually determines nothing I can see no use in occupying time in calling it. When it comes up on the second reading, any gentleman is at liberty to strike out the whole section, and then we come to the scratch. There, sir, I can see if any gentleman desires the ayes and noes that he should have them. But I only beg leave to say that in the course of my parliamentary experience I never called or seconded the ayes and noes and never called or seconded the previous question; and I do not think I ever shall.
MR. POWELL. I would make this inquiry; if any part of a section is stricken out on the first reading, whether a motion to insert that on the second reading would be in order?
THE PRESIDENT. The rule provides that.
MR. POWELL. That was what I wished to know.
MR. PAXTON. Mr. President -
MR. BROWN of Preston. We ought to keep our rules. I do not think that gentlemen in this Convention should be deprived of the privilege of placing themselves on the record on any question that may be presented for the consideration of this Convention. The rules under which we are acting gives that privilege and I am entirely opposed to changing them. Besides, sir, if we spend our time discussing side questions in this Convention, I do not know but we will be here till next spring; I can not tell when we will get through the labors of this Convention. I think the Convention ought to devote itself exclusively to the matters properly under consideration and observe the rules we have adopted and to let every gentleman on this floor have the privilege at any time and upon every question that may be presented to the consideration of the Convention to call the yeas and nays and place themselves upon the record.
MR. PAXTON. I was about to remark, sir, that I thought the proposition of the gentleman from Wood was liable to some objections. The object, I suppose, in demanding the yeas and nays is to put upon the record the opinions of members of any proposition. Now, it appears to me that it might happen on the first reading of a report that it might contain a section or several that were independent propositions and on a motion to strike out one of these propositions it might be very desirable to have a record of the vote. If members have not the privilege then of calling for the yeas and nays and it is stricken out at the time by the ayes and noes, you will observe that it will be impossible afterwards to put that vote on the record. That is that any proposition that any gentleman is desirous to exclude from any section is before us for action, on a motion to exclude that proposition any member should have the privilege of calling the ayes and noes; otherwise, the proposition carrying, there can be no record afterwards. Of course no one would call it on the second reading on a proposition that had been excluded on the first reading.
MR. STUART of Doddridge. I feel some interest in this matter, and I know that a practical illustration will show this thing. In order to show you, sir - that - I must be permitted to say the motion of the gentleman from Wood is for the purpose of facilitating business and getting along faster than we do now. But still I want to show wherein I think it will operate grievously. Now, for instance, in our first report on boundary we struck out one section embracing a certain section of country by a large vote. Now unless we had the privilege of calling the vote on that, some man would have to have made that motion to have brought in that section again on the second reading in order to place himself on the record.
The vote being taken, Mr. Van Winkle's resolution was rejected.
MR. CALDWELL. I believe the second section is before the Convention.
MR. LAMB. There was an amendment proposed this morning to strike out the word "three" and insert "two".
MR. BROWN of Kanawha. I rise to inquire what is the precise question.
THE PRESIDENT. The proposition is to strike out in the eighth line the word "three" and insert "two".
MR. BROWN of Kanawha. I move, then, to amend the motion by inserting "four" instead of "two".
MR. HALL of Marion. I ask for a division of the question.
THE PRESIDENT. The question will be first on striking out.
MR. LAMB. I can only state that there were different opinions in the committee. Some preferred "four". I myself preferred "two". And the matter was finally fixed at "three" by way of compromise.
The motion to strike out was agreed to.
MR. SOPER. Well, sir, I now move to fill the blank with "two".
MR. BROWN of Kanawha. I move to amend that insertion by inserting "four". I desire to say that in forming a constitution, if it is the purpose to establish any distinction whatever between the two houses of the legislature, a distinctive feature of that difference is in time - the duration of the office.
We elect them by a very little larger constituency. I have no doubt the constituency of the senate will be as closely compacted together, just as the constituency of the delegate is; and there will be then three chosen by the same interests, representing the same interests, coming directly from the people; and the great object of the senate, as I understand, is to furnish a body of mature years, of long experience, and whose term of office by being longer removed from the electors will constitute them something of a check balancing the other house Which is always emphatically influenced by an expression of popular sentiment. Whatever party prejudice has the control at the time is felt in the house. The very object of the senate is to correct that evil. That is always one of the evils in question. The great distinctive feature of English liberty and French freedom is that one has two houses, the other one. France with her 700 members assembled was nothing but a mob; and whatever passion swayed the hour shaped the legislation. But in the English government, freedom was secure, stability was secure, and permanency in all their legislation. Our ancestors, in keeping with that form of government, have established a senate. In doing so, they gave it six years of duration, and they chose to distinguish it by all the characteristics possible to secure to it wisdom and durability and grave consideration, that it might be a check and security to the people on the action of the popular assembly. And experience has shown that it was a very wise provision. Now, sir, we are copying after the same great examples. We are establishing an assembly that is to be more removed from immediate connection with the people; the principal object of which is to be a check, to secure besides the wisdom, a check on the hasty action of the house. Without that we might abolish the senate altogether. The house will always express the popular will. The senate is a mere incubus unless you are seeking to secure durability in a body before which everything must pass in becoming a law. Our ancestors even gave to the President the veto to stop the hasty action of the house; and experience has shown the wisdom of that. Now, when we are attempting to reduce this to two years or three, we are forgetting the lessons of past experience - throwing aside that which in times of excitement we may find essential to the permanency of our institutions.
These are the reasons that induce me to urge the adoption of four instead of two.
MR. SOPER. It is true, sir, the object of electing the senate for a longer term than the lower house is to prevent hasty and improvident legislation; to act as a check upon the body elected annually.
Yet, I believe, sir, so far as my observation has extended that the term of the senate has generally been double that of the lower house.
Now, let us see, sir, whether that arrangement does not effect the object. According to the proposition that I intend to carry out, one half the senators should be elected yearly. The other half will remain in office for two years. The house, I assume, is elected annually. So that you will see, sir, that there will be at all times one half the senate holding over, having the experience of the former years legislation. Being removed from any immediate excitement which might influence the election of the lower house, that part of the senate, being one half, I suppose to be a present safeguard, because it would be improbable to suppose that there would be an entire change in the election of the other half. The same men, probably more or less of them, would be re-elected. If not there would be some holding the same views of those that remain in the senate; so that there would be a majority in the senate to guard against any imprudent measure that might originate in the lower house.
But, then, again, sir, suppose you elect for four years. And suppose, if you please, that at the expiration of the four years, you elect them all at once. You get an excitement in the country in which your house and senate are both under the influence of the hasty excitement. What condition would the country be in then? And, then again, sir, suppose we should be so unfortunate as to elect gentlemen for four years and after we had had the experience of their legislation for two years the whole country would be dissatisfied and would demand an entire change of men and measures, why this senate could defeat the will of the whole people if so disposed. I am satisfied from the observation that I have been able to make in relation to these matters that a senate elected for double the time of the lower house, particularly if one half are elected yearly, is always a safeguard against any improvident legislation and more certainly carries out the public views and interests. Again, you perceive, sir, that if this senate should act improperly, on the second year the whole question would come back to the people and if men representing the same views should try to effect the same object you have an election twice from the people. I insist upon it, sir, that is an expression of the public mind upon the question that ought to be regarded as the law of the land. For these reasons, sir, I hope the amendment will not prevail.
THE CHAIR. The question is on the adoption of the amendment to the amendment.
MR. LAMB. Mr. President, I wish to make a remark or two on the motion before the house. I observe, in looking over the constitutions in the books, that in all the New England states without exception the term of the senate is one year only; in eleven other states, the term is two years. In three states, it is three years. So that in twenty different states it is less than four years. What has brought my mind to the conclusion that four years is entirely too long has been mainly what has occurred recently in Maryland.
I have looked - and we have all looked - with exceeding great anxiety until the late legislature of Maryland could be got out of office. And a majority the other way. If the expiration of their term. had been fixed for a more distant time, Maryland would in all probability have got into the secession ranks unless held back by force. A long term does very well when we have got the right men there; but occasionally that will not occur, and the object should be to fix such a period as will bring the senate, as every other power in the Commonwealth must necessarily be, within the power of the people. It strikes me that two years is long enough. By the constitution of two bodies, one composed of a few members and feeling more sensibly, therefore, in each individual the sense of his own responsibility for correct legislation, we at least accomplish the great object, I take it, which occasions the legislature to be divided into two branches; that every law that is proposed and passes that legislature will be more closely scrutinized in one body or the other, although they cannot have very distinct and separate interests. If we carry out the principle of the gentleman from Kanawha, we must inevitably have distinct interests represented in the two bodies. To carry out that principle to its fair and legitimate result, we must have a house of lords, and then we have a distinct and independent body. But we do accomplish a good deal in securing the careful examination of every law by two distinct bodies of men, one of whom is to be a small body and will therefore feel more sensibly the responsibility the individual incurs should any errors of legislation escape them.
The question was taken and the amendment rejected.
The question recurred on the motion to insert "two years".
MR. DILLE. Mr. President, I propose to fill the blank with "three years". Without discussion, I prefer that period to any other.
MR. VAN WINKLE. I must confess, Mr. President, that I am not prepared to vote on this matter. I wish to know in reference to it what is to be done in other respects. I wish to know more about how this senate is to be constituted before I can vote on the question of how long they are to serve. I agree with the gentlemen who have spoken that there should be a considerable distinction between the members of the two houses. It is entirely useless to have two houses of the legislature if they are both constituted in the same way precisely. There is no chance that you get a different opinion from one from what you get of the other. I have had occasion to think a great deal on this subject. While it is not necessary to constitute a house of lords, or constitute an aristocracy who make a house of lords - while we cannot divide our State into permanent divisions bearing such relations to the whole as the different states bear to the United States - it may be a question, sir, whether we cannot in some way introduce a principle which will make this second house as valuable to us as the principle of the house of lords is in the legislature of Great Britain. If I can understand it at all, sir, the advantage of the second house is not that members of the second house need take a different view of the subject that is presented; because they may arrive - and must if the action of the two houses is consentaneous, they must arrive at the same conclusion - but that they must necessarily look at every question that is presented from a different point of view from the other house. Thus, the aristocracy of England being a distinct class, representing peculiarly the agricultural interest under certain laws and customs that have descended to them from their ancestors, have yet in common with the great mass of the people an interest in promoting the prosperity of the whole kingdom. Yet they have that peculiar interest of their own which insists that they should look at the question in a different point of view. And, now, do not gentlemen perceive at once that if the two houses regard the question from different points of view, the chances that the act thus passed is a wise act are much greater. Again, we send our representatives to the lower house, of course representing limited districts of people, fresh from the people, with a short period after which they return for re-election or reprobation, as the case may be. They represent that great democratic interest, the whole population. But we have another house, the senate, composed of representatives of states; and they, owing to their position being there to protect the interests of state rights, as they are called, against invasion, necessarily also look at every question from a different standpoint; and if the two houses agree we have some guaranty, at least that there is some wisdom in the measure passed. But taking the senate and house of delegates of Virginia, as constituted for years past - of the various states of this Union as many of them are constituted - and what reason is there to suppose that the point of view is different in one house from the other. What benefit is there to induce us to pay the expense of an upper house? Their conclusions will naturally be the same; and we have no benefit from the additional expense except delay in legislation.
But, sir, the question arises - and it will come up in other points besides this - how our senate should be constituted? Cannot we create a senate here for this new State that shall necessarily from the mode in which it is, constituted be compelled to regard these questions which will come up for legislation from a different standpoint from the house of delegates? If we can create such a body we make two houses who must approach the consideration of these questions by different roads; look at them in different aspects; be governed by different but not antagonistic interests; and then when an act passes both houses, we have some guaranty that it is more than the effervescence of the moment; not passed upon from impulse, but well considered and weighed; and that objections that may arise, not only from one point of view but from the other, have been obviated before it was permitted to pass.
I gave this subject much consideration in 1850. I was anxious then that the senate of Virginia should be constituted on a different basis from that of the house of representatives. But I can only say that party politics came up and that was the principle on which it was constituted. And so was the house of delegates - on party principles. It was a perfect gerrymander. Counties were hitched together to produce a majority for one party or the other and not for their interests or what was just and equitable throughout the State. Now there are no very lively party feelings and we can approach this subject without regard to party views; and I wish that in making these distributions we could make a rule that would be permanent and prevent anything like this hereafter. Our State is likely to grow rapidly in population and the committee have fixed the period at ten years - that is when a new census is taken - when a reapportionment can be made. We cannot avoid that; and we cannot foresee that if we constitute districts now that they will remain equal at the end of ten years; and perhaps that is as long as we ought to trust to it. Some counties will increase more rapidly than others and, of course, inequalities will be produced. By making these districts as large as possible, the chances that they will remain more nearly equal will be increased; but changes will be necessary at that time, I have no doubt.
My mind is drawn to this circumstance as inducing or tending to something like that difference with regard to the measures proposed for action in the two houses, which I believe is the benefit of having the two houses. I thought that if these counties were grouped together with some regard to their commercial interests - the governing interests of the country; grouped together with some reference to their centers of trade, to their relative situations as to water-courses, and so forth, that then you might find something like the senate which I have indicated is found in the government of Great Britain and in the government of the United States. Here you would have one district with its commercial center at Wheeling, another at Parkersburg. There would be somewhat of a diversity of interest between these two and between all in the same way; not an antagonism of interest, but a diversity of interest such as would insure you that the representatives from the two districts would at least look at matters from different points of view and different from those of the delegate districts.
I will not take up the time of the Convention, sir, by going fully into this subject as I might. I merely wish to indicate to them now that there are principles involved in this thing that ought to be regarded; and if they fix their mind definitely on the point of so constituting these two houses as to give safety to us in the legislation they are about to enact, it may prove to be a very wholesome arrangement in the future. We must be safe from the peril peculiar to democratic governments of impulsive and hasty legislation. They act like the people they represent - from the impulse of the moment; but if with a conservative body such as the senate may be made, time is given to reflect, their action is revised; and while they are still anxious the measure should succeed, they find it necessary to take from it its objectionable features and then only will the conservative body let it pass. There is great safety in this; and if we have not succeeded in enacting the mode in which this safety may be attained, there may be some other; to which I beg to call the attention of the members of the Convention. Let us see, at least, if we cannot constitute this senate in such a way as that it shall operate as a fly-wheel in the government to hold back when there is occasion and to drive when there is occasion to go ahead. I do not mean that the senate is to stand there as a check on the action of the lower house; but to steady that action; to prevent it from being premature and hasty; from being founded merely upon impulse and to give time for consideration without any unnecessary or extraordinary delay. I think such a thing can be done; and I think it is important we should give to what we are going to call the upper house of the legislature something which will make it distinct from the other body; a character which may be recognized throughout the State that will be known as the conservative body and one on which we can rely to protect us from the effects which are always attributed to a democratic government of hasty and ill advised legislation.
Now, sir, these remarks may seem foreign; but if you constitute this senate and these districts as they seem to be constituted, so far as I can perceive from the hasty glance I have given them, with a view to these different senatorial districts having a common interest; that is to say, that each of these districts, perhaps, has its own interests which may be separate from the rest but yet are not necessarily antagonistic. It has been a great feature heretofore in reference to the perpetuity of our United States Government and the prosperity of the people under it that there is precisely that diversity of interest which has tended to insure us always safe legislation. Louisiana has very different though not antagonistic interests from Maine. They will, of course, look at legislation from different standpoints. And in that very diversity of interests we find our safety. And I believe this form of government for the United States might be adopted over the whole continent with safety. The system is a perfect one. We want to resemble that to some extent in the State. Then, we get not a permanent division of the State into senatorial districts; I wish we could. But we get for the time districts that have this diversity of interest.
Still another thing that tends to give the senate this character is that every senator is elected not by a single county but by a number of counties; that is, a much greater number of voters. The committee have it about five delegates to two senators. But a much greater number of voters must enter into the election of a senator. He therefore represents a much larger district; and he may find pressing upon him in the discharge of his duties a diversity of interest in his own district. Here is some safety. Another is that you go a longer time to the senate. That is important unquestionably, and if united to these other things may constitute such a senate as I desire to see. If a senate is elected for two years, as proposed by one gentleman, for four as proposed by another; the delegates go out every year; a portion of the senate remains. The delegates come in with any popular notion - and permit me to say they are notions which the people themselves will correct if they have the time - but the senators who remain over are not subject so much to the popular pressure; they know and hear and may to some extent share the opinions of the people but they are not so directly affected by them, and may in. that way stand as a barrier against hasty and imprudent legislation.
I wish to add that there is something more to be regarded in the arrangement of senators than how many there are to be; and I trust in the solution of this question members will take this into consideration. Other points are coming up here in reference to the constitution of the senate in which my remarks will be more applicable than they are now; and I conclude with the remark I made that I have a difficulty at this stage of the proceeding in voting as to the length of the term of the senators. But knowing that can be revised when the report comes up on its second reading if other features have been so changed as to change the term as now proposed, I have concluded to vote for the motion of the gentleman from Tyler. But I ask again that members will look into this subject and remember that it is highly important for our own safety as the people who are to be governed by it that it should have somewhat of a different constitution from that of the house of delegates or that otherwise there is no use of more than one house.
MR. BROWN of Kanawha. I desire to know what the motion is.
THE PRESIDENT. It is the motion of the member from Preston (Mr. Dille) to amend the motion of the member from Tyler so as to fill the blank with "three".
The question was taken and the amendment rejected.
And the question recurring on the motion of Mr. Soper to fill the blank with two years, it was agreed to.
MR. STEVENSON of Wood moved to adjourn, but withdrew.
MR. VAN WINKLE. That being disposed of and the hour of adjournment having arrived I would ask before adjourning to submit the report of the Committee on County Organization. It is not necessary that it should be read tonight, sir, and would move that it be laid on the table and be printed.
There being no objection, the report was received, laid on the table and ordered to be printed. The report is as follows:
The Committee on County Organization respectfully submit the following provisions and recommend their adoption as part of the Constitution.
By order of the committee.
P. G. VAN WINKLE, Chairman.
1. Every county shall be divided into townships having an area of not less than thirty square miles, lying compactly, and containing not less than four hundred white inhabitants. Each township shall be designated "the Township of in the county of ," by which name they may sue and be sued
2. The voters of each township, assembled in stated or special township meeting, shall transact all such business relating exclusively to their township as herein, or may be by law, required or authorized. They shall annually on the first Thursday of April for every six hundred white inhabitants, elect one supervisor, one clerk of the township, one surveyor of roads for each precinct in their township, one overseer of the poor, and such other township officers as may be directed by law. They shall also biennially elect one justice of the peace; and if the white population of their township exceeds one thousand in number, an additional justice, and as many constables as justices; but the same person shall not be elected constable for more than two consecutive full terms. The supervisor, or in his absence a voter chosen by those present, shall preside at all township meetings and elections, and the clerk shall act as clerk thereof.
3. The supervisors chosen in the townships of each county shall constitute a board, to be known as "the supervisors of the county of ," by which name they may sue and be sued and make and use a common seal, and enact ordinances and bylaws. They shall transact the business of their county in legislative form, for which purpose they shall meet statedly at least four times in each year at the court house of their county, and may hold special and adjourned meetings. At their first meeting after the annual township election, and whenever a vacancy may occur they shall elect one of their number president of the board, and appoint a clerk of the county whose compensation they shall fix by ordinance and pay from the county treasury, who shall keep a journal of their proceedings and transact such other business pertaining to his office as may be by them or by law required.
4. The board of supervisors of each county, a majority of whom shall be a quorum, under such general regulations as may be prescribed by law, have the superintendence and administration of the internal affairs and fiscal concerns of their county, including the establishment and regulation of roads, public buildings, ferries and wills, the granting of ordinary and other licenses, and the laying, collecting and disbursement of the county levies; but all writs of ad quad damnum shall issue from the circuit courts. They shall from time to time appoint the places for holding elections in the several townships of their county, and shall be the judges of election, qualification and return of their own members and of all county and township officers.
5. The voters of every county shall on the day appointed for electing members of the legislature, whenever it may be necessary, elect one sheriff, one prosecuting attorney, one surveyor of lands, one recorder of deeds and wills, one or more assessors, one superintendent of schools, and such other county officers as the legislature may from time to time direct or authorize, the duties of all of whom shall be prescribed and defined by general laws. All the said county officers shall hold their offices for two years from the first day of October next succeeding their election, except the sheriff, whose term of office shall be three years. The same person shall not be elected sheriff for two consecutive full terms, nor shall the deputy of any sheriff be elected his successor; but the retiring sheriff shall finish all business remaining in his hands at the expiration of his term, for which purpose his commission and official bond shall continue in force. The duties of all the said offices shall be discharged by the incumbents thereof in person or under their personal superintendence.
6. The legislature shall, at their first session, by general laws, provide for carrying into effect, the foregoing provisions of this article. They shall also provide for commissioning such of the officers therein mentioned, as they may deem proper, and may require any class of them to give bond with security for the faithful discharge of the duties of their respective offices, and for accounting for and paying over as required by law, all money which may come to their hands by virtue thereof. They shall further provide for the compensation of the said officers by fees, or from the county treasury; for their removal, in case of misconduct or neglect of duty; for filling vacancies, not herein provided for, and for the appointment, when necessary, of deputies and assistants, whose duties and responsibilities shall be prescribed and defined by general laws. When the compensation of an officer is paid from the county treasury, the amount shall be fixed by the board of supervisors, within limits to be ascertained by law; but no reduction of the compensation of any officer shall take effect during the term for which he was elected.
7. The civil jurisdiction of a justice of the peace shall embrace all actions of assumpsit, debt, detinue, trespass and trover, where the defendant resides, or, being a new resident of the State, is found, within his township, or where the cause of action arose therein, and when the value in controversy, exclusive of interest, does not exceed fifty dollars, subject to an appeal to the circuit court of the county, but a justice of any other township of the same county, may issue a summons to the defendant to appear before the justice of the proper township, which may be served by a constable of either township. Executions issued by a justice may be directed to, and executed by the constable of the township where the judgment is rendered, or in which the property to be levied on is found. In case of a vacancy in the office of justice or constable in any township having but one, or of the disability to act of the incumbent, any other justice or constable of the same county may discharge any of the duties of their respective offices within said township.
8. Every justice of the peace and constable shall be a conservator of the peace throughout his county, and the criminal jurisdiction of the former shall be co-extensive therewith. Criminal and peace warrants may be served by any constable thereof, under such regulations as may be prescribed by law. Every justice shall perform the duties of the former office of coroner within his township, in cases of death by violence or casualty, and may, if required, act as such in any part of his county. The boards of supervisors shall designate one or more constables of their respective counties to serve process and levy executions when the sheriff thereof is a party defendant in a suit therein, and to perform the other duties of the said former office.
9. No county hereafter erected shall have an area of less than four hundred and fifty square miles, and no county shall be reduced to less than the same area, or its white population to a number less than four thousand, by taking territory therefrom to form a new county. The board of supervisors may alter the bounds of a township of their county, or erect new townships therein, with the consent of a majority of the votes of each township interested, assembled in stated township meeting, or in a meeting duly called for the purpose; but the area of no township shall be thereby reduced below the limit mentioned in the first section of this article, unless the number of the white population remaining therein shall exceed one thousand.
MR. STEVENSON of Wood moved to adjourn.
MR. LAMB. If the Convention adjourns, I suppose it is to ten o'clock. The motion for eleven only applied to today.
And thereupon the Convention adjourned.
Chapter Eleven: First Constitutional Convention of West Virginia
