Chapter VII - Constitutional History

History of Hampshire County West Virginia From Its Earliest Settlement to the Present
By Hu Maxwell and H. L. Swisher
Morgantown, West Virginia; A. Brown Boughner Printer; 1897

PART 1 State History
CHAPTER VII - CONSTITUTIONAL HISTORY
Pages 91-119

The territory now embraced in the state of West Virginia has been governed under five state constitutions, three of Virginia and two of West Virginia. The first was adopted in 1776,, the second in 1830, the third in 1851, the fourth in 1863, the fifth in 1872. The first constitution was passed by the Virginia convention, June 29, 1776. five days before the signing of the Declaration of Independence. Virginia had taken the lead in declaring the United States independent and capable of self government; and it also took the lead in preparing a system of government for itself. The constitution passed by its convention in 1776 was one of the first documents of the kind in the world, and absolutely the first in America. Its aim was lofty. It had in view greater liberty than men had ever before enjoyed. The document is a masterpiece of statesmanship; yet its terms are extremely simple. It was the foundation on which nearly all the state constitutions have been based. It was in force nearly fifty years, and not until experience had shown wherein it was defective was there any disposition to change it or form a new constitution. Viewed now in the light of nearly a century and a quarter of progressive government, there are features seen in it which do not conform to the ideas of statesmen of today. But it was so much better, at the time of its adoption, than anything gone before, that it was entirely satisfactory.

A Bill of Rights preceded the first constitution. On May 15, 1776, the Virginia convention instructed its delegates in congress to propose to that body to declare the united colonies independent; and at the same time the convention appointed a committee to prepare a declaration of rights and a plan of government for Virginia. On June 12 the Bill of Rights was passed. The document was written by George Mason, member of the committee. This state paper is of interest, not only as being one of the earliest of the kind in America, but because it contains inconsistencies which in after years clung to the laws of Virginia, carrying injustice with them, until West Virginia, when it became a state, refused to allow them to become part of the laws of the new commonwealth. The chief of these inconsistencies is found in the declaration at the outset of the Bill of Rights "that all men are by nature equally free and independent;" and yet further on it paves the way for restricting the privilege of suffrage to those who own property, thereby declaring in terms, if not in words, that a poor man is not as free and independent as a rich one. Here was the beginning of the doctrine so long held in Virginia by its law makers that a man without property should not have a voice in the government. In after years this doctrine was combatted by the people of the territory now forming West Virginia. The inhabitants west of the Blue Ridge, and especially west of the Alleghanies, were the champions of universal suffrage; and they labored to attain that end, but with little success, until they were able to set up a government for themselves, in which government men were placed above property. Further on in this chapter something more will be found on this subject.

The Bill of Rights declares that the freedom of the press is one of the chief bulwarks of liberty. This is in marked contrast with and a noticeable advance beyond the doctrine held by Sir William Berkeley, one of Virginia's royal governors, who solemly declared: "I thank God we have not free schools or printing, and I hope we shall not have these hundred years; for learning has brought disobedience and heresy and sects into the world, and printing has divulged them and libels against the government. God keep us from both." This solemn protest of Virginia's governor was made nearly forty years after the founding of Harvard university in Massachusetts. It has been sometimes cited as an illustration of the difference between the Puritan civilization in Massachusetts and the cavalier civilization of Virginia. But the comparison is unfair. It was no test of Virginia's civilization, because the governor was carrying out instructions from England to suppress printing, and he did not consult the people of the colony whether they wanted printing presses or not. But when a printer, John Buckner by name, ten years after Governor Berkeley asked divine protection against schools and printing, ventured into Virginia with a press, he was promptly brought before the governor and was compelled to give bond that he would print nothing until the king of England gave consent.

In view of this experience it is not to be wondered at that the Virginians were prompt in declaring in their Bill of Rights, that the press should be free. But they did not embrace that excellent opportunity to say a word in favor of schools. Nor could they, at one sweep, bring themselves to the broad doctrine that property does not round off and complete the man, but that "a man's a man a' for that," and capable, competent and trustworthy to take full part in the affairs of government. This Bill of Rights was brought into existence in the early part of the Revolutionary war; and at that very time the bold, patient, patriotic and poor back woodsmen from the frontiers were in the American armies, fighting and dying in the cause of liberty, and equal rights; and yet, by laws then being enacted, these same men were denied the right to take part in the management of the government which they were fighting to establish. It was for no other reason than that they were not assessed with enough property to give "sufficient evidence of permanent common interest with and attachment to the community." This notion had been brought from England, and had been fastened upon the colony of Virginia so firmly that in could not be shaken off when that state severed the political bonds which bound it to the mother country. The idea clung to the constitution passed in 1776; to that of 1830; to that of 1851; but sentiment against the property qualification for suffrage constantly grew, and particularly among the people of Western Virginia, until it manifested itself in striking the obnoxious clause from the constitution when the new state of West Virginia came into separate existence.

If the war of the revolution did not teach the statesmen of Virginia that the poor man can be a patriot; and if the thirty-five or more years intervening between the adoption of the constitution of 1776 and the second war with England had not sufficed to do so, it might be supposed that the new experience of the war of 1812 would have made the fact clear. But it did not convince the law maker. Virginia was speedily invaded by the British after the declaration of war, and some of the most valuable property in the state was destroyed, and some of the best territory was overrun by the enemy. The capital at Washington, just across the. Potomac from Virginia, was captured and burned. An ex-president of the United States was compelled to hide in the woods to avoid capture by the enemy. In this critical time no soldiers fought more valiantly, none did more to drive back the invader, than the men from Western Virginia, where lived most of those who were classed too poor to take part in the affairs of government. It is said that sometimes half the men in a company of soldiers had never been permitted to vote because they did not own enough property.

The people of Western Virginia felt the injustice keenly. They never failed to respond promptly to a call when their services were needed in the field; but in time of peace they sought in a lawful and decent manner the redress of their grievances. They could not obtain this redress under the constitution then in force; and the war of 1812 had scarcely came to a close when the subject of a new constitution began to be spoken of. It was agitated long in vain. Nor was the restriction of suffrage the only wrong the people of Western Virginia endured, somewhat impatiently, but always with full respect for the laws then in force.

The eastern part of Virginia had the majority of inhabitants and the largest part of the property, and this gave that portion of the state the majority in the assembly. This power was used with small respect for the rights of the people in the western part of the state. Internal improvements were made on a large scale in the east; but none were made west of the mountains, or very few. Men in the western counties had little encouragement to aspire to political distinction. The door was shut on them. The state offices were filled by men from the wealthy eastern districts. At length the agitation of the question of a new constitution ripened into results. The assembly of Virginia in 1823 passed a bill submitting to a vote of the people whether they would have a constitutional convention called. At the election there were 38,542 votes cast, of which 21,896 were in favor of a constitutional convention. By far the heaviest vote favoring the convention was cast west of the Blue Ridge. The wealthy slave owners of the lower counties wanted no change. The constitution had been framed to suit them, and they wanted nothing better. They feared that any change would give them something less suitable. Nevertheless, when the votes were counted and it was ascertained that a new constitution was inevitable, the representatives of the wealth of the state set to work to guard against any invasion of the privileges they had so long enjoyed.

The delegates from what is now West Virginia elected to this convention were: E. M. Wilson and Charles S. Morgan of Monongalia county; William McCoy, of Pendleton county; Alexander Campbell and Philip Doddridge of Brooke county; Andrew Beirne of Monroe county; William Smith of Greenbrier county; John Baxter of Pocahontas; H. L. Opie and Thomas Griggs of Jefferson; William Naylor and William Donaldson of Hampshire; Philip Pendleton and Elisha Boyd of Berkeley; E. S. Duncan of Harrison; John Laidley of Cabell; Lewis Summers of Kanawha; Adam See of Randolph. The leader of the western delegates in the convention was Philip Doddridge who did all in his power to have the property quantification clause omitted from the new constitution.

The convention met at Richmond, October 5, 1829. From the very first meeting the western members were slighted. No western man was named in the selection of officers of the convention. It was seen at the outset that the property qualification for suffrage would not be given up by the eastern members without a struggle, and it was soon made plain that this qualification would have a majority. It was during the debates in this convention that Philip Doddridge, one of "West Virginia's, greatest men, came to the front in his full stature. His opponents were Randolph, Leigh, Upshur, Tazewell, Standard and others, who supported the doctrine that a voter should be a property owner. One of Doddridge's colleagues was Alexander Campbell, the founder of the church of the Disciples of Christ, sometimes known as the Christian church, and again called, from its founder, the Campbellite church. Here "were two powerful intellects, Doddridge and Campbell, and they championed the cause of liberty in a form more advanced than was then allowed in Virginia. Doddridge himself had followed the plow, and he felt that the honest man does not need a certain number of acres before he can be trusted with the right of suffrage. He had served in the Virginia legislature and knew from observation and experience the needs of the people in his part of the state. He was born on the bank of the Ohio river two years before the backwoodsmen of Virginia annulled the Quebec Act, passed by the parliament of England; and he had grown to manhood in the dangers and vicissitudes of the frontiers. He was but five years old at the first siege of Fort Henry; and was ten years old at the second siege; and the shot which brought down the last British flag that floated above the soil of Virginia during the Revolutionary war, was fired almost within hearing of his home. Among his neighbors were Lewis Wetzel, Ebenezer Zane, Samuel Brady and the men who fought to save the homes of the frontier settlers during the long and anxious years of Indian warfare. Although Doddridge died two years after this convention, while serving in congress, he had done enough to give West Virginia reason for remembering him. The work of Campbell does not stand out in so conspicuous a manner in the proceedings of the convention; but his influence for good was great; and if the delegates from west of the mountains labored in vain for that time, the result was seen in later years.

The work of the convention was brought to close in 1830, and a new constitution was given to the voters of the state for their approval or rejection. The western members had failed to strike out the distasteful property qualification. They had all voted against it, except Doddridge, who was unable to attend that session on account of sickness, no doubt due to overwork. His vote, however, would have changed nothing, as the eastern members had a large majority and carried every measure they wanted. In the dissatisfaction consequent upon the failure of the western counties to secure what they considered justice, began the movement for a new state. More than thirty years elapsed before the object was attained; and it was brought about by means and from causes which not the wisest statesman foresaw in 1830; yet the sentiment had been growing all the years. The old state of Virginia was never forgiven the offense and injury done the western district in the constitutional convention of 1829-1830. If the injustice was partly removed by the enlarged suffrage granted in the constitution adopted twenty years after, it was then too late for the atonement to be accepted as a blotting out of past wrongs; and in 1861 the people of West Virginia replied to the old state's long years of oppression and tyranny.

The constitution of 1830 adopted the Bill of Rights of 1776 without amendment or change. Then followed a long preamble reciting the wrongs under which Virginia suffered, prior to the Revolutionary war, before independence was secured. Under this constitution the Virginia house of delegates consisted of one hundred and thirty-four members, of which twenty-six were chosen by the counties lying west of the Alleghenies; twenty-five by the counties between the Blue Ridge and the Alleghanies; forty-two by the counties between the Blue Ridge and tidewater, and thirty-six by the tidewater counties. The senate consisted of thirty-two members, of which thirteen were from the counties west of the Blue Ridge. No priest or preacher was eligible to the legislature. The right of suffrage was based on a property qualification. The ballot was forbidden and all voting was viva voce. Judges of the supreme court and of the superior courts were not elected by the people, but by the joint vote of the senate and house of delegates. The attorney general was chosen in the same way. Sheriffs and coroners were nominated by the county courts and appointed by the governor. Justices of the peace were appointed by the governor, and the constables were appointed by the justices. Clerks were appointed by the courts. The state treasurer was elected by the joint vote of the senate and house of delegates. It is thus seen that the only state officers for which people could vote directly were senators and members of the house of delegates. Such an arrangement would be very unsatisfactory at the present day among people who have become accustomed to select their officers, almost without exception, from the highest to the lowest. The growth of the republican principle of government has been gradual. It was not all grasped at once; nor has it reached its fullest development yet. The Bill of Rights and the first constitution of Virginia were a great step forward from the bad government under England's colonial system; but the gathered wisdom of more than a century has discovered and corrected many imperfections.

It is noticeable that the constitution of 1830 contains no provisions for public schools. It may be stated generally that the early history of Virginia shows little development of the common school idea. The state which was satisfied for seventy-five years with suffrage denied the poor would not fee likely to become famous for its zeal in the cause of popular education. The rich, who voted, could afford schools for their children; and the father who was poor could neither take part in the government nor educate his children, Virginia was behind most of the old states in free schools. At the very time that Governor Berkeley thanked God that there were neither free schools nor printing presses in Virginia, Connecticut was devoting to education one fourth of its revenue from taxation. As late as 1857 Virginia with a population of nearly a million and a half, had only 41,608 children in common schools. When this is compared with other states, the contrast is striking. Massachusetts with a smaller population had five times as many children in the free schools; New Hampshire with one-fifth the population had twice as many; Illinois had nearly eight times as many, yet a smaller population; Ohio with a population a little larger had more than fourteen times as many children in public schools as Virginia. The following additional states in 1857 had more children attending common schools than Virginia had in proportion to their population: Maine, Vermont, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Indiana, Michigan, Iowa, Wisconsin, Missouri, Kentucky, Maryland, Louisiana, Tennessee, North Carolina, Georgia, Alabama. The states with a smaller percentage of children in the common schools than Virginia's, were South Carolina, California and Mississippi. For the remainder of the states, the statistics for that year were not compiled.

The showing is bad for Virginia. Although the lack of provision for popular education in the convention of 1830 does not appear to have caused opposition from the western members, yet the promptness with which the new state of West Virginia provided for public schools as soon as it had a chance, is evidence that the sentiment west of the Alleghanies was strong in favor of popular education.

When the western delegates returned home after completing their labors in the convention of 1829-1830, they found that their constituents were much dissatisfied with the constitution. The chief thing contended for, less restriction on suffrage, had been refused; and the new constitution, while in some respects better than the old, retained the most objectionable feature of the old. At the election held early in 1830 for ratifying or rejecting the new constitution, 41,618 votes were cast, of which 26,055 were for ratification and 15,563 against. The eastern part of the state voted strongly for ratification; the western part against it. Only two counties in what is now West Virginia gave a majority for it; and only one east of the Blue Ridge voted against it. The vote by counties in West Virginia was as follows: Berkeley, for 95, against 161; Brooke, the home of Doddridge and Campbell, for 0, against 371; Cabell, for 5, against 334; Greenbrier, for 34, against 464; Hampshire, for 241, against 211; Hardy, for 63, against 120; Harrison, for 8, against 1,112; Jefferson, for 243, against 53; Kanawha, for 42, against 266; Lewis, for 10, against 546; Logan, for 2, against 255; Mason, for 31, against 369; Monongalia, for 305, against 460; Monroe, for 19, against 451; Morgan, for 29, against 156; Nicholas, for 28, against 325; Ohio, for 3, against 643; Pendleton, for 58, against 219; Pocahontas, for 9, against 288; Preston, for 121, against 357; Randolph, for 4, against 567; Tyler, for 5, against 299; Wood, for 28, against 410. Total, for 1,383, against 8,375.

Although the constitution of 1830 was unsatisfactory to the people of the western counties, and they had voted to reject it, it had been fastened upon them by the vote of the eastern counties. However, the matter was not to end there. In a republican government the way to reach a redress of grievances is to keep the proposed reform constantly before the people. If right, it will finally prevail. In all reform movements or questions, the right is nearly always in the minority at first; perhaps it is always so. The western Virginians had been voted down, but they at once began to agitate the question of calling another constitutional convention. They kept at it for twenty years. Finally a legislature was chosen which called an election on the subject of a constitutional convention. The majority of the legislature was in favor of the convention, and in May, 1850, an election was held to choose delegates. Those elected from the country west of the Alleghanies, and from districts partly east and partly west of those mountains, were John Kenney, A. M. Newman, John Lionberger, George E. Deneale, G. B. Samuels, William Seymour, Giles Cook, Samuel C. Williams, Allen T. Caperton, Albert G. Pendleton, A. A. Chapman, Charles J. Faulkner, William Lucas, Dennis Murphy, Andrew Hunter, Thomas Sloan, James E. Stewart, Richard E. Byrd, Charles Blue, Jefferson T. Martin, Zachariah Jacob, John Knote, Thomas Gaily, Benjamin H. Smith, William Smith, Samuel Price, George W. Summers, Joseph Johnson, John F. Snodgrass, Gideon D. Camden, Peter G. Van Winkle, William G. Brown, Waitman T. Willey, Edward J. Armstrong, James Neeson, Samuel L. Hayes, Joseph Smith, John S. Carlisle, Thomas Bland, Elisha W. McComas, Henry J. Fisher, and James H. Ferguson.

One of these delegates, Joseph Johnson, of Harrison county, was the only man up to that time ever chosen governor from the district west of the Alleghanies; and in the three-quarters of a century since the adoption of Virginia's first constitution, no man from west of the Alleghanies had ever been sent to the United States senate; and only one had been elected from the country west of the Blue Ridge. Eastern property had out-voted western men. Still the people west of the mountains sought their remedy in a new constitution, just as they had sought in vain nearly a generation before.

The constitutional convention met and organized for work. The delegates from the eastern part of the state at once showed their hand. They insisted from the start that there should be a property qualification for suffrage. This was the chief point against which the western people had been so long contending; and the members from west of the Alleghanies were there to resist such a provision in the new constitution, and to fight it to the last. Lines were drawn upon this issue. The contending forces were at once arrayed for the fight. It was seen that the western members and the members who took sides with them were not in as hopeless a minority as they had been in the convention of 1830. Still they were not so strong as to assure victory; and the battle was to be long* and hard-fought. If there was one man among the western members more conspicuous as a leader than the others, that man was Waitman T. Wiliey, of Monongalia county. An unswerving advocate of liberty in its widest interpretation, and with an uncompromising hatred of tyranny and oppression, he had prepared himself to fight in the front when the question of restriction of suffrage should come up. The eastern members forced the issue, and he met it. He denied that property is the true source of political power; but, rather, that the true source should be sought in wisdom, virtue, patriotism; and that wealth, while not bad in itself, frequently becomes a source of political weakness. The rights of persons are above the rights of property. Mr. Scott, a delegate from Fauquier county, declared that this movement by the western members was simply an effort to get their hands on the pocket books of the wealthy east. Mr. Willey repelled this impeachment of the integrity of the west. Other members in sympathy with the property qualification took up the cue, and the assault upon the motives of the people of the west became severe and unjust. But the members from that part of the state defended the honor of its people with a vigor and a success which defeated the property qualification in the constitution.

It was not silenced however. It was put forward and carried in another form, by a proviso that members of the assembly and senate should be elected on an arbitrary basis until the year 1865, and at that time the question should be submitted to a vote of the people whether their delegates in the legislature should be apportioned on what was called the "white basis," or the "mixed basis." The first provided that members of the legislature should be apportioned according to the number of white inhabitants; the second, that they should be apportioned according to both property and inhabitants. The eastern members believed that in 1865 the vote of the state would favor the mixed basis, and thus the property qualification would again be in force, although not in exactly the same form as before.

The proceedings of the convention had not advanced far when it became apparent that a sentiment in that body was strong in favor of electing many or all of the county and state officers. The sentiment favoring electing judges was particularly strong. Prior to that time the judges in Virginia had been chosen by the legislature or appointed by the governor who was a creature of the legislature. The members from western Virginia, under the leadership of Mr. Willey, were in favor of electing the judges. It was more, in conformity with the principles of republican government that the power which selected the makers of laws should also select the interpreters of those laws, and also those whose duty it is to execute the laws. The power of the people was thus increased; and with increase of power, there was an increase also in their responsibility. Both are wholesome stimulants for the citizens of a commonwealth who are rising to new ideas and higher principles. The constitution of 1850 is remarkable for the general advance embodied in it. The experience of nearly half a century has shown that many improvements could be made; but at the time it was adopted, its landmarks were set on higher ground. But, as yet, the idea that the state is the greatest beneficiary from the education of the people, and that it is the duty of the state to provide free schools for this purpose, had not gained sufficient footing to secure so much as an expression in its favor in the constitution of 1850.

The work of the convention was completed, and at an election held for the purpose in 1852 it was ratified and became the foundation for state government in Virginia. The Bill of Rights, passed in 1776, and adopted without change as a preamble or introduction to the constitution of 1830, was amended in several particulars and prefixed to the constitution of 1850. The constitution, of 1830 required voting by viva voce, without exception. That of 1850 made an exception in favor of deaf and dumb persons. But for all other persons the ballot was forbidden, The property qualification for suffrage was not placed in the constitution. Although a provision was made to foist a property clause on the state in 1865, the great and unexpected change made by the civil war before the year 1865, rendered this provision of no force. The leading features of the "mixed basis," and "white basis," as contemplated by. the constitution, were: In 1865 the people, by vote, were to decide whether the members of the state senate and lower house should be apportioned in accordance with the number of voters, without regard to property; or, whether, in such apportionment, property should be represented. The former was called the white basis or suffrage basis, the latter, mixed basis. Under the mixed basis the apportionment would be based on a ratio of the white inhabitants and of the amount of state taxes paid. Provision was made for the apportionment of senators on one basis and members of the lower house on the other, if the voters should so decide. The members of the convention from West Virginia did not like the mixed basis, but the clause making the provision for it went into the constitution in spite of them. They feared that the populous and wealthy eastern counties would out-vote the counties beyond the Alleghanies, and fasten the mixed basis upon the whole state. But, West Virginia had separated from the old slate before 1865, and never voted on that measure. There was a clause which went so far as to provide that the members of the senate might be apportioned solely on the basis of taxation, if the people so decided by vote.

Under the constitution, free negroes were not permitted to reside in Virginia, unless free at the time the constitution went into effect. Slaves thereafter manumitted forfeited their freedom by remaining twelve months in the state. Provision was made for enslaving them again.

For the first time in the history of the state, the governor was to be elected by the people. He had before been appointed by the legislature. County officers, clerks, sheriff, prosecuting attorney and surveyor, were now to be elected by the people. The county court, composed of not less than three or more than five justices of the peace, held sessions monthly, and had enlarged jurisdiction. This arrangement was not consistent with the advance made in other branches of county and state government as provided for in the constitution. That county court was not satisfactory; and, even after West Virginia became a state, it did not at first rid itself of the tribunal which had out-lived its usefulness. But after a number of years, a satisfactory change was made by the new state. Under Virginia's constitution of 1850, the auditor, treasurer and secretary were selected by the legislature.

The first constitution of West Virginia was a growth, rather than a creation by a body of men in one convention. The history of that constitution is a part of the history of the causes leading up to and the events attending the creation of a new state from the counties in the western part of Virginia, which had refused to follow the old state when it seceded from the union of states and joined the coalition of rebellious states forming the Southern Confederacy. Elsewhere in this volume will be found a narrative of the acts by which the new state was formed. The present chapter will consider only those movements and events directly related to the first constitution.

The efforts of the northern states to keep slavery from spreading to new territory, and the attempts of the south to introduce it into the west; the passage of laws by northern states by which they refused to deliver runaway slaves to their masters; decisions of courts in conflict with the wishes of one or the other of the great parties "to the controversy; and other acts or doctrines favorable to one or the other; all entered into the presidential campaign of 1860, and gave that contest a bitterness unknown before or since in the history of American politics. For many years the south had been able to carry its points by the ballot box or by statesmanship; but in 1860 the power was slipping away, and the north was in the ascendancy with its doctrines of no further extension of slavery. Aware of this, the threat came from the south that the southern states would not abide by the result if a republican president should be elected. There were four candidates in the field; and the republicans elected Abraham Lincoln. The south lost no time in putting into execution its threat that it would not submit to the will of the majority. Had the southern states accepted the result; acquiesced in the limitation of slavery within those states wherein it already had an undisputed foothold, the civil war would not have occurred at that time, and perhaps never. Slavery would have continued years longer. But the rashness of the southern states, and their disregard of law and order, hastened the crisis, and in its result, slavery was stamped out. South Carolina led the revolt by a resolution December 20, 1860, by which that state seceded from the Union. Other southern states followed; formed "The Confederate States of America," and elected Jefferson Davis president.

Virginia, as a state, went with the south; but the people of the western part when confronted with the momentous question: "Choose ye this day whom ye will serve," chose to remain citizens of the United States. Governor Letcher of Virginia called an extra session of the legislature to meet January 7, 1861, to consider public affairs. The legislature passed a bill calling a convention of the people of Virginia, whose delegates were to be elected February 4, to meet in Richmond, February 13, 1861. A substitute for this bill offered in the lower house of the legislature, providing that a vote of the people of the state should be taken, on the question of calling the convention, was defeated. The convention was thus convened without the consent of the people; a thing which had never before bee4 done in Virginia.

Delegates were chosen for Western Virginia. They were nearly all opposed to secession, and worked to defeat it in the convention. Finding their efforts in vain, they returned home, some of them escaping many dangers and overcoming much difficulty on the way. The action of the Virginia convention was kept secret for sometime, while state troops, and troops from other states, were seizing United States arsenals and other government property in Virginia. But when the delegates returned to their homes in Western Virginia with the news that Virginia had joined the Southern Confederacy, there was much excitement, and a widespread determination among the people not to be transferred to the confederacy. Meetings were held; delegates were chosen to a convention in Wheeling to meet June 11 for the purpose of reorganizing the government of Virginia. The government which had existed there had gone over to the Southern Confederacy. The chief purpose was to save as much of Virginia as possible from joining the south, and to take such measures for the public safety as might be deemed necessary.

Owing to the peculiar circumstances in which the state of Virginia was placed, part in and part out of the Southern Confederacy, the constitution of 1850 did not apply to the case, and certainly did not authorize the reorganization of the state government in the manner in which it was about to be done. No constitution and no statute had ever been framed to meet such an emergency. The proceeding undertaken by the Wheeling convention was authorized by no written law, and so far as the statutes of the state contemplated such a condition, they forbade it. But, as the gold which sanctified the Temple was greater than the Temple, so men who make the law are greater than the law. The principle is dangerous when acted upon by bad men; but patriots may, in a crisis which admits of no delay, be a law unto themselves. The people of Western Virginia saw the storm; saw the only salvation, and with promptness and wisdom they seized the .helm and made for the harbor.

The constitution of Virginia did not apply. The Wheeling convention passed an ordinance for the government of the reorganized state. This ordinance could scarcely be called a constitution, yet it was a good temporary substitute for one. It authorized the convention to appoint a governor and lieutenant governor to serve until their successors were elected and qualified. They were to administer the existing laws of Virginia. The general assembly was called to meet in Wheeling, where it was to provide for the election of a governor and lieutenant governor. The capital of Virginia was thus changed from Richmond to Wheeling, so far as this convention could change it. The senators and assemblymen who had been chosen at the preceeding election were to constitute the legislature. A council of five was appointed by the convention to assist the governor in the discharge of his duties. An allusion to the state constitution, made in this ordinance, shows that the convention considered the Virginia constitution of 1850 still in force, so far as it was applicable to the changed conditions. There was no general and immediate change of county and district officers provided for; but an oath was required of them that they would support the constitution of the United States. Provision was made for removing from office such as refused to take the oath, and for appointing others in their stead.

Under and by virtue, of this ordinance the convention elected Francis H. Pierpont governor of Virginia, Daniel Polsley lieutenant governor, and James S. Wheat attorney general. Provision having been made by the general assembly which met in Wheeling for an election of delegates to frame a constitution for the new state of West Virginia, provided a vote of the people should be in favor of a new state, and the election having shown that a new state was desired, the delegates to the constitutional convention assembled in Wheeling November 26, 1861. The purpose at first had not been to form a new state, but to reorganize and administer the government of Virginia. But the sentiment in favor of a new state was strong, and resulted in the assembling of a convention to frame a constitution. The list of delegates were, Gordon Batelle, Ohio county; Richard L. Brooks, Upshur; James H. Brown, Kanawha; John J. Brown, Preston; JohnBoggs, Pendleton; W. W. Brumfield, Wayne; E. Caldwell, Marshall; Thomas R. Carskadon, Hampshire; James S. Cassady, Fayette; H. D. Chapman, Roane; Richard M. Cooke, Mercer; Henry Bering, Monongalia; John A. Dille, Preston; Abijah Dolly, Hardy; D. W. Gibson, Pocahontas; S. F. Griffith, Mason; Stephen M. Hansley, Raleigh; Robert Hogar, Boone; Ephaim B. Hall, Marion; John Hall, Mason; Thomas W. Harrison, Harrison; Hiram Haymond, Marion; James Hervey, Brooke: J. P. Hoback, McDowell; Joseph Hubbs, Pleasants; Robert Irvine, Lewis; Daniel Lamb, Ohio; R. W. Lauck, Wetzel; E. S. Mahon, Jackson; A. W. Mann, Greenbrier; John R. McCutcheon, Nicholas; Dudley S. Montague, Putnam; Emmett J. O'Brien, Barbour; Granville Parker, Cabell; James W. Parsons, Tucker: J. W. Paxton, Ohio; David S. Pinnell, Upshur: Joseph S. Pomeroy, Hancock; John M. Powell, Harrison; Job Robinson, Calhoun; A. F. Ross, Ohio; Lewis RufCner Kanawha; Edward W. Ryan, Fayette, George W. Sheets, Hampshire; Josiah Simmons, Randolph; Harmon Sinsel Taylor; Benjamin H. Smith, Logan; Abraham D. Soper, Tyler; Benjamin L. Stephenson, Clay; William E. Stevenson, Wood; Benjamin F. Stewart, Wirt; Chapman J. Stewart. Doddridge; G. F. Taylor, Braxton; M. Titchenell, Marion; Thomas H. Trainer, Marshall; Peter G. Van Winkle, Wood; William Walker, Wyoming; William W. Warder, Gilmer; Joseph S. Wheat, Morgan; Waitman T. Willey, Monongalia; A. J. Wilson, Ritchie; Samuel Young, Pocahontas.

There were two sessions of this convention, the first in the latter part of 1861; the second beginning February 12, 1863. The constitution was completed at the first session, as was supposed; but when the question of admitting the state into the Union was before congress, that body required a change of one section regarding slavery, and the convention was reconvened and made the necessary change.

When the convention assembled November 15, 1861, it set about its task. The first intention was to name the new state Kanawha, but there being objections to this, the name of Augusta was suggested. Then Alleghany, Western Virginia, and finally the name West Virginia was chosen. Selecting a name for the new state was not the most difficult matter before the convention. Very soon the question of slavery came up. The sentiment against that institution was not strong enough to exclude it from the state. No doubt a majority of the people would have voted to exclude it, but there was a strong element not yet ready to dispense with slavery, and a division on that question was undesirable at that time. Accordingly, the constitution dismissed the slavery question with the provision that no slave should be brought into the state, nor free negroes come into the state after the adoption of the constitution. Before the constitution was submitted to a vote of the people, it was changed to provide for the emancipation of slaves.

The new constitution had a provision which was never contained in the constitutions of Virginia; it affirmed that West Virginia shall remain a member of the United States. When this constitution was framed, it did not regard Hampshire, Hardy, Pendleton, and Morgan as parts of the state, but provided that they might become parts of West Virginia if they voted in favor of adopting the constitution. They so voted, and thus came into the state. The same provision was made in regard to Frederick county, but it chose to remain a portion of Virginia. It was declared that there should be freedom of the press and of speech, and the law of libel was given a liberal interpretation, and was rendered powerless to curtail the freedom of the: press. It was provided that in suits of libel, the truth could be given in evidence, and if it appeared that the matter charged as libellous was true, and was published with good intentions, the judgment should be for the defendant in the suit. The days of viva voce voting were past. The constitution provided that all voting should be by ballot. The legislature was required to meet every year.

A clause was inserted declaring that no persons who had aided or abetted the Southern Confederacy should become citizens of the state, unless such persons had subsequently volunteered in the army or the navy of the United States. This measure seems harsh when viewed from after years when the passions kindled by the civil war have cooled, and the prejudice and hatred have become things, of the past. It must be remembered that the constitution came into existence during the war. The better judgment of the people at a later day struck out that clause. But at the worst, the measure was only one of retaliation, in remembrance of the tyranny recently shown within this state toward loyal citizens and office holders by sympathizers of the Southern Confederacy. The overbearing spirit of the politicians of Richmond found its echo west of the Alleghanies. Horace Greeley had been deterred from delivering a lecture in Wheeling on the issues of the day, because his lecture contained references to the slavery question. In Ohio county at that time, those who opposed slavery were in the majority, but not in power. There were not fifty slave holders in the county. Horace Greeley was indicted in Harrison county because he had caused the Tribune, his newspaper, to be circulated there. The agent of the Tribune tied from the state to escape arrest. Postmasters, acting as they claimed under the laws of Virginia, refused to deliver to subscribers such papers as the New York Tribune and the New York Christian Advocate. A Baptist minister who had taught colored children in Sunday school was for that act ostracized, and he left Wheeling. Newsdealers in Wheeling were afraid to keep on their shelves a statistical book written by a North Carolinian, because it treated of slavery in its economic aspect. Dealers were threatened with indictment if they handled the book. Cassius Clay of Kentucky was threatened with violence for coming" to Wheeling to deliver a lecture which he had delivered in his own state. The newspapers of Richmond reproached Wheeling for permitting such a paper as the Intelligencer to be published there.

These instances of tyranny from southern sympathizers are given, not so much for their value as simple history, as to show the circumstances under which West Virginia's first constitution was made, and to give an insight into the partisan feeling which led to the insertion of the clause disfranchising those who took part against the United States. Those who upheld the union had in the meantime come into power, and in turn had become the oppressors. Retaliation is never right as an abstract proposition, and seldom best so as a political measure. An act of injustice should not be made a precedent or an excuse for a wrong perpetrated upon the authors of the unjust act. Time has done its part in committing to oblivion the hatred and the wrong which grew out of the civil war. Under West Virginia's present constitution, no man has lesser or greater political powers because he wore the blue or the grey.

Representation in the state senate and house of dele gates was in proportion to the number of people. The question of the "white basis," or the "mixed basis," as contained in the Virginia constitution of 1850, no longer troubled West Virginia. Suffrage was extended until the people elected their officers, state county and district, including all judges.

The constitution provided for free schools, and authorized the setting apart of an irreduceable fund for that purpose. The fund is derived from the sale of delinquent lands; from grants and devises, the proceeds of estates of persons who die without will or heirs; money paid for exemption from military duty; such sums as the legislature may appropriate, and from other sources. This is invested in United States or state securities, and the interest is annually appropriated to the support of the schools. The principal must not be expended.

The constitution was submitted to the people for ratification in April, 1863, and the vote in favor of it was 18,862, and against it 514. Jefferson and Berkeley counties did not vote. They had not been represented in the convention which formed the constitution. With the close of the war, Virginia claimed them, and West Virginia claimed them. The matter was finally settled by the supreme court of the United States in 1870, in favor of West Virginia. It was at one time considered that the counties of Northampton and Accomack on the eastern shore of Virginia belonged to the new state of West Virginia because they had sent delegates to the Wheeling convention for the reorganization of the state government. It was once proposed that these two counties be traded to Maryland in exchange for the two western counties in that state which were to be added to West Virginia; but the trade was not consummated.

Under the constitution of 1863 the state of West Virginia was governed nine years, and there was general prosperity. But experience demonstrated that many of the provisions of the constitution were not perfect. Amendments and improvements were suggested from time to time, and there gradually grew up a strong sentiment in favor of a new constitution. On February 23, 1871, a call was issued for an election of delegates to a constitutional convention. The election was held in August of that year, and in January, 1872, the delegate met in Charleston and began the work. They completed it in a little less than three months.

The following delegates were elected by the various senatorial and assembly districts of the state: Brooke county, Alexander Campbell, William K. Pendleton; Boone, William D. Pate; Braxton, Homer A. Holt; Berkeley, Andrew W. McCleary, C. J. Faulkner, John Blair Hoge; Barbour, Samuel Woods, J. N. B. Crim; Clay, B. W. Byrne; Calhoun, Lemuel Stump; Cabell, Evermont Ward, Thomas Thornburg; Doddridge, Jeptha F. Randolph; Fayette, Hudson M. Dickinson; Greenbrier, Henry M. Mathews, Samuel Price; Harrison, Benjamin Wilson, Beverly H. Lurty, John Bassel; Hampshire, J. B. Armstrong, Alexander Monroe; Hardy, Thomas Maslin; Hancock, John H. Atkinson; Jefferson, William H. Travers, Logan Osburn, William A. Morgan; Jackson, Thomas R. Park; Kanawha, John A. Warth, Edward B. Knight, Nicholas Fitzhugh; Lewis, Mathew Edmiston, Blackwell Jackson; Logan, M. A. Staton; Morgan, Lewis Allen; Monongalia, Waitman T. Willey, Joseph Snider, J. Marshall Hagans; Marion, U. N. Arnett, Alpheus F. Haymond, Fountain Smith; Mason, Charles B. Waggener, Alonzo Cushing; Mercer, Isaiah Bee, James Calfee; Mineral, John A. Robinson, John T. Pearce; Monroe, James M. Byrnsides, William Haynes; Marshall, James M. Pipes, J. W. Gallaher, Hanson Criswell; Ohio, George O. Davenport, William W. Miller, A. J. Pawnell, James S. Wheat; Putnam, in John J. Thompson; Pendleton, Charles D. Boggs; Pocahontas, George H. Moffett; Preston, William G. Brown, Charles Kantner; Pleasants, W. G. H. Care; Roane, Thomas Ferrell; Ritchie, Jacob P. Strickler; Randolph, J. F. Harding; Raleigh, William Price, William McCreery; Taylor, A. H. Thayer, Benjamin F. Martin; Tyler, Daniel D. Johnson, David S. Pugh; Upshur, D. D. T. Farnsworth; Wirt, D. A. Roberts, David H. Leonard; Wayne, Charles W. Ferguson; Wetzel, Septimius Hall; Wood, James M. Jackson, Okey Johnson.

The new constitution of West Virginia enters much more fully into the ways and means of government than any other constitution Virginia or West Virginia had known. It leaves less for the courts to interpret and decide than any of the former constitutions. The details are elaborately worked out, and the powers and duties of the three departments of state government, the legislative, judicial and executive, are stated in so precise terms that there can be little ground, for controversy as to what the constitution means. The terms of the state officers were increased to four years, and the legislature's sessions were changed from yearly to once in two years. A marked change in the tone of the constitution regarding persons who took part in the civil war, against the government, is noticeable. Not only is the clause in the former constitution disfranchising those who took part in the rebellion, not found in the new constitution, but in its stead is a clause which repudiates, in express terms, the sentiment on this subject in the former constitutions. It is stated that "political tests, requiring persons, as a prerequsite to the enjoyment of their civil and political rights, to purge themselves, by their own oaths, of past alleged offenses, are repugnant to the principles of free government, and are cruel and oppressive." The ex-confederates and those who sympathized with and assisted them in their war against the United States, could have been as effectively restored to their rights by a simple clause to that effect, as by the one employed, which passes judgment upon a part of the former constitution. The language on this subject in the new constitution may, therefore, be taken as the matured judgment, and as an expression of the purer conception of justice by the people of West Virginia when the passions of the war had subsided, and when years had given time for reflection. It is provided, also, that no person who aided or participated in the rebellion shall be liable to any proceeding's, civil or criminal, for any act done by him in accordance with the rules of civilized warfare. It was provided in the constitution of Virginia that ministers and priests should not be eligible to seats in the legislature. West Virginia's new constitution broke down the barrier against a worthy and law-abiding class of citizens. It is provided that "all men shall be free to profess, and, by argument, to maintain their opinions in matters of religion; and the same shall, in no wise, affect, diminish, or enlarge their civil capacities."

A change was made in the matter of investing the state school fund. The first constitution authorized its investment in United States or West Virginia state securities only. The new constitution provided that it might be invested in other solvent securities, provided United States or this state's securities cannot be had. The provision for courts did not meet general approval as left by the constitution, and this dissatisfaction at length led to an amendment which was voted upon October 12, 1880, and was ratified by a vote of 57,941 for to 34,270 against. It provides that the supreme court of appeals shall consist of four judges who shall hold office twelve years; and they and all other judges and justices in the state shall be elected by the people. There shall be thirteen circuit judges, and they must hold at least three terms of court in every county of the state each year. There tenure of office is eight years. The county court was remodeled. It no longer consists of justices of the peace, nor is its powers as large as formerly. It is composed of three commissioners whose term of office is six years. Four regular terms of court are held yearly. The powers and duties of the justices of the peace are clearly defined. No county shall have fewer than three justices nor more than twenty. Each county is divided into districts, not fewer than three nor more than ten in number. Each district has one justice, and if its population is more than twelve hundred, it is entitled to two. They hold office four years.

There is a provision in the constitution that any county may change its county court if a majority of the electors vote to do so, after the forms laid down by law have been complied with. It is left to the people, in such a case, to decide what shall be the nature of the tribunal which takes the place of the court of commissioners.

The growth of the idea of liberty and civil government in a century, as expressed in the Bill of Rights and the Virginia constitution of 1776, and as embodied in the subsequent constitutions of 1830, 1850, 1863 and 1872, shows that the most sanguine expectations of the statesmen of 1776 have been realized and surpassed in the present time. The right of suffrage has been extended beyond anything dreamed of a century ago; and it has been demonstrated that the people are capable of understanding and enjoying their enlarged liberty. The authors of Virginia's first constitution believed that it was unwise to entrust the masses with the powers of government. Therefore, the chief part taken by the people in their own government was in the selection of their legislature. All other state, county and district officers were filled by appointments or by elections by the legislature. Limited as was the exercise of suffrage, it was still further restricted by a property qualification which disfranchised a large portion of the people. Yet this liberty was so great in comparison with that enjoyed while under England's colonial government, that the people were satisfied for a long time. But finally they demanded enlarged rights, and obtained them. When they at length realized that they governed themselves, and were not governed by others, they speedily advanced in the science of government. The property qualification was abolished. The doctrine that wealth was the true source of political power was relegated to the past. From that it was but a step for the people to exercise a right which they had long-suffered others to hold — that of electing all their officers. At first they did not elect their own governor; and as late as 1850 they acquiesed, though somewhat reluctantly, in the doctrine that they could not be trusted to elect their own judges. But they have thrown all this aside now, and their officers are of their own selection; and no man, because he is poor, if capable of self support, is denied an equal voice in government with that exercised by the most wealthy. Men, not wealth, intelligence, not force, are the true sources of our political power.

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