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Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

January 29, 1862

The Convention was opened with prayer by Rev. Joseph S. Pomeroy, member from Hancock.

The President stated the question before the Convention as being on the motion of Mr. Brown of Kanawha to limit the tax which the legislature might lay on property for the support of free schools to ten per cent of the amount of such taxation for State purposes.

The question was put and the amendment agreed to.

MR. BATTELLE. I now wish to offer, if the Convention please, a substitute for the second, third, fourth and fifth sections of the report. I will read it and the Secretary can then report it:

"2. The legislature shall provide, as soon as may be practicable, for the establishment of a thorough and efficient system of free schools. They shall provide for the support of such schools by appropriating thereto the interest of the invested school fund; the net proceeds of all forfeitures, confiscations and fines accruing to this State under the laws thereof; and by general taxation on persons and property, or otherwise. They shall also provide for raising in each township, by the authority of the people thereof, a sum not less than one-half the amount required for the support of free schools therein. They may further provide whenever they deem it expedient for the election of a state superintendent of free schools and such state or township boards of education, not specified in this Constitution, as may be necessary to carry out the objects of this article."

THE PRESIDENT. The rule is taking up by sections, but we can only substitute for one section at a time.

MR. BATTELLE. We are about to take, as I understand, Mr. President, the vote on the second section, and I offer it now before we do that, with the presumption also that it may be regarded as a substitute for the remaining sections which I have specified. I move the rule be suspended.

MR. SINSEL. You can just offer this as a substitute for the second section, and then ask to have the others taken out.

MR. BATTELLE. I will take the course indicated by the Chair. The motion to suspend the rule was agreed to.

MR. BATTELLE. I wish to say in regard to this substitute that it is a kind of compromise, so far as I understand it meets the views of gentlemen who are desirous for the establishment of free schools. Well, I suppose everybody in the Convention is desirous of that, but of the framers of this report in all material points, and it concedes at the same time the objections urged here yesterday by the gentlemen on the other side of this discussion. For example, instead of providing, as the 2nd section now does, that the legislature shall provide for a system of free schools without any discretion at all within three years, we say so soon as may be practicable. I think perhaps that extension is due to our peculiar circumstances; I think perhaps it is wise to make that concession. But, on the other hand, we retain the application of the funds specified for the purpose indicated, and that is to my mind the most vital point of this report. I would be glad to have the Secretary report the substitute again.

The Secretary did so, reading with some difficulty.

MR. BATTELLE. The chairman of the committee writes a most miserable hand. Let me make an apology for the Secretary.

MR. POMEROY. This is a substitute for the 2nd section of this report. I could cheerfully vote for it, but I cannot conceive that the provisions made for the 3rd, 4th and 5th are anything like as good as those in the report of the committee. In the 5th section there is provision made on the adoption of which or something similar depends the whole efficiency of this system. If you don't have a state superintendent and county superintendents and township boards, you may as well have no school system whatever. And I am opposed to leaving that to be acted on by the legislature. The result will be that the people will contend that they are paying their money while the schools are under no system of regulation whatever. In all those states where the common schools system is adopted the superintendent receives but a small compensation. So county superintendents and township boards receive no compensation at all; but they are elected by the friends of education in the townships and take charge of school matter. Because they do this the schools are carried on with interest. I think it would be better far to let this be, and substitute for the second section, the only one in regard to which there appears to be any controversy. But I don't see how any man who is in favor of the system at all can be opposed to this 5th section. What does it say? (Reading.)

"5. Provision shall be made by law for the election, powers, duties and compensation of a general superintendent of free schools for the State, whose term of office shall be the same as that of the governor, and for a county superintendent for each county, and for the election in the several townships by the people of such officers not specified in the Constitution as may be necessary to carry out the objects of this article and for the organization, whenever it may be deemed expedient to do so of the State Board of Public Instruction."

This section is a very good one, and I am disposed to think unless a man is opposed to the whole system altogether he could raise no objection to the 5th section. He could not on the ground of pecuniary considerations, because the legislature will determine whether these men will receive compensation or not. I think one wishing to see a good system of schools carried into effect here would be opposed to substituting this for the 5th section, against which I have seen no valid objection raised.

MR. BATTELLE. I may remark, Mr. President, frankly that when this amendment offered by the gentleman from Kanawha obtained I regarded the bottom knocked out of this whole scheme contained in this report, and if any gentleman will look at it a moment he will see that it is so. What is the state of the case? We have here in our Constitution by that a limitation on the taxation of property, with perhaps the least show of a capital for a school fund of any state in this Union. So far as I know, the only single case in the whole Union where a limitation is put on the taxation there on property or persons for the support of schools. I think gentlemen will find that a fact. I beg to repeat it that throughout this entire Union where any provision is made in the constitutions of the states for the establishment of a common school system, there is invariably, either by implication or by express terms coupled with that provision an unlimited power of taxation on persons and property, and that has been done where the school fund provided and accruing from year to year to year is a most munificent fund.

Now, then, we have by this report as amended this state of things in this State, where the capital of our fund is the least of any state in the Union, a provision is introduced in this Constitution alone proposing to restrict taxation on property for school purposes. We have that anomaly, and so far as I know it is without precedent anywhere in the history of our country.

As I have said, I regard that amendment as destroying the vitality of the whole scheme. Now, how will it work? In the second section we provide that no less than one-half the capitation tax, together with the interest on the school fund should go for the support of schools. Well, now let us make a little calculation. I believe the last returns show that we have on account of the amount of revenue accruing in the part of Virginia which will probably constitute the State of West Virginia, say the sum of $480,000. That, so far as I know, is about the amount of the annual revenue at the last return made of which we have any account. Now, there is no probability that for years to come the annual revenue will from the same sources of taxation amount to that sum; but ten per cent on that would give you $48,000. The capitation tax may be fifty cents or one dollar, at the discretion of the legislature. If they should levy one dollar, then if this report should be adopted with that provision in it, one-half of that tax would go to common schools. Perhaps it would be safe to calculate that we have within the bounds of the new State say 60,000 titheables. That is a very hurried calculation; but with three hundred thousand population I am not very far wrong in that. That would give about $30,000 from the capitation tax. The amendment of the gentleman from Kanawha proposes that the taxation on property shall not exceed ten per cent of the revenues of the State, and this capitation tax, as provided for in our report, and as it probably may be provided for in the report of the Committee on Taxation, will just about cover that amount; and you leave the school system with its hands tied up so that it shall not pledge one cent beyond this on the taxation of property, and you destroy the efficiency of the whole scheme.

Now, the substitute proposes what I regard as the vital essence of the whole measure. It provides just what every other constitution in the whole land provides, that these schools shall be supported, in the first place, by the proceeds of the school fund as we have been all along accustomed to it; by the proceeds of confiscations, and fines and by general taxation on persons and on property, or otherwise; but, on the other hand it concedes the objections that were urged yesterday that the legislature shall not feel themselves bound to establish within three years such a system of free schools as shall support, in general, a school in every district three months in the year. It concedes that matter of detail to the exigencies of the times and leaves that entirely an open question; and I am constrained to say that I think it wise so to leave it under our peculiar circumstances. Now I ask gentlemen to look at this matter; and I think I have shown that while the substitute is free from the objections urged here yesterday and formerly, while it is free from any objection of running needlessly into detail, it certainly does meet that objection and removes it. It at the same time maintains the very principle in reference to the direction of the funds for which the committee have all along contended and which they deem vital to the success of the plan. I have no objection that not only the 6th section but the 5th should stand as the committee have reported, and strike from the substitute the points which that provision covers.

I may be allowed to say, I suppose, every one feels a little preference for their own reports. It is with some grief that I have seen it about knocked all to pieces, having a somewhat parental feeling in reference to it; and if these details are to be in it they are gotten up about as well as any gentleman could have done it even if he is disposed to try it. My personal preference would be that the 5th section remain as it is. It is indeed necessary, in form or substance, to carry out the requirements of the school system.

MR. POWELL. I propose an amendment to the substitute, in the first line, after the word "provide," strike out "as soon as may be practicable" and insert "within five years." The object I have in view in offering this amendment is to require the legislature to organize this free school system, within a limited time. The way the substitute is, the time is unlimited. They may put it off ten, fifteen or twenty years if they see proper, deeming it impracticable. I think we should require them to organize a free school system within five years, within a definite time, and five years I think gives them a sufficient time.

MR. SINSEL. Here is a thought that has just occurred to me: We have defeated the only proposition of a real general character that has come before the Convention. This system of free schools operates on every section of the State alike and upon the inhabitants according to their wealth. Now, it has been hinted at here that there would be some propositions offered to this Convention to prohibit the State from engaging in any enterprise to carry on works of internal improvement. Now, it does seem to me that the friends of internal improvements have struck a vital blow at that interest by their vote on this question. How can they expect persons who live where we need no internal improvements to vote for any measure that will operate only in a local point of view while they themselves turn around and vote down and destroy a proposition that will act throughout the State in general? Now, I was aware that this proposition of free schools would meet with some opposition from the wealthy part of the community - those that were very wealthy and had no children to educate. Well, now, what is government constituted for? I have no doubt, Mr. President, if the southern states had had a good and efficient system of free schools throughout their whole border that we never would have heard anything of secession. Not a single state where that has been carried on successfully was there anything like secession. You find it confined, in the loyal states at least to those who wished to lord it over the common people. Now, they talk about the intelligence of Virginia. Well, we may have as much natural mother wit as other countries, but it has been my fortune, or misfortune to be thrown amongst soldiers from the different sections of this state, and to my utter mortification I find in almost every instance the soldiers from the free states are far more intelligent and well informed than those from our state. Those who have mingled amongst them cannot help seeing it. While it may be mortifying, it is true. After having voted this motion of the gentleman from Kanawha for ten cents, you would carry on a system of free schools just like the State of Virginia has carried on a system of internal improvements in many respects. Virginia today owes more than every improvement she has within her borders is worth because that has been made on state account. What has been her policy? In many instances she would commence a grand work of improvement and appropriate just money enough to pay officers to overlook it and superintend it and let the work remain. O, they would say, we must have appropriations to prevent this work from going to destruction. Why, we have been taxed to pay men just to overlook the financing, the works remaining inactive. So it will be with this school system under the amendment just adopted - just money enough to be expended to no use and purpose whatever. Now, ten per cent on the State taxes, how much would that be? Now suppose the Virginia -

MR. HALL of Marion. I raise the question, the motion is not for a reconsideration of the vote.

MR. SINSEL. No, sir; but I reckon I can now show the propriety of adopting this present motion before the house. Unless you permit me to show what you have already done will be inefficient and worthless. Now, if the gentleman can draw these nice lines of distinction I would like to see it laid down. I surely have a right to say that what you have done already is worthless - more than worthless - and that the substitute which we now propose is to correct the error that has been committed.

THE PRESIDENT. The question is really on the propriety of compelling the legislature within five years to establish this system.

MR. SINSEL. We have adopted a provision -

THE PRESIDENT. I was going to remark we have perhaps very little time to finish our work in and gentlemen in discussing all questions would do well to confine themselves as closely as possible to the question at issue. The question raised upon the substitute offered by the gentleman from Harrison is a very narrow one and confines itself really to the propriety of restrictory or compulsion on the legislature to do their work in a certain time. He was rather arguing that the work would not be done.

MR. SINSEL. I would just show, Mr. President, the impossibility of arguing the propriety of adopting the substitute without showing the inefficiency there would seem to me to be, supremely ridiculous. How can I show that this substitute ought to be instituted in place of what we have just adopted?

THE PRESIDENT. The question is not now whether the substituted ought to be adopted or not, but whether the amendment ought to prevail.

MR. SINSEL. That is just exactly what I want to show. That amendment ought to prevail because what we have already done is worthless.

MR. HERVEY. I insist, Mr. President, that the gentleman is out of order. The question is -

MR. POMEROY. This motion of the gentleman from Harrison is merely an amendment to require the legislature to act within five years. After that amendment is voted upon, why then in regard to the substitute I think the gentleman from Taylor will have full latitude, and I for one feel like giving it to him.

THE PRESIDENT. The argument of the gentleman from Taylor would perhaps be in order on the question of adopting the substitute in lieu of the original report.

MR. BATTELLE. I beg leave to suggest, Mr. President, very deferentially to the consideration of the Chair, whether the gentleman from Taylor is not pursuing precisely the course that has been adopted here ever since these discussions opened. Gentlemen get up and talk to us every day by the half-hour on every topic save the question pending before the body.

MR. LAMB. I move the gentleman from Taylor be at liberty to proceed. We lose more time discussing the point of order than we save.

MR. HALL of Marion. I dislike to rise to a point of order, but when I do so I dislike to be placed in an improper position. On several occasions when I have done this, it was with no invidious feelings towards any party. It is very apparent that while his remarks may have been in order on the question of the substitute offered by the chairman of the committee, that they could not have reference to the amendment offered by the gentleman from Harrison; and notwithstanding the remark of my friend from Hancock, I too am for giving persons latitude. But I rise to a question of order with no illiberal disposition but in view of the fact that we do hope to end at some time the business of this body, and we never can do it unless we adhere to the question. It is in no spirit of illiberality but of necessity that I was compelled to suggest that the gentleman from Taylor was not in order.

THE PRESIDENT. The Chair is aware that the gentleman was in idea ranging a little out of order in the address he was making, and that he was making a speech that ought to be made on the question between the substitute and the original proposition. The Chair would remark that he considered it was making so little difference which of the two propositions he was making his speech on that perhaps more time would be saved by permitting the gentleman to go on than by stopping him and in that view he was allowed to proceed as far as he went. If, however, the Convention refuses to extend the privilege, the Chair will take it as an indication that it is the wish of the Convention that the Chair hereafter hold speakers strictly within the rules and will try to govern themselves accordingly. The question is on the motion to allow the gentleman from Taylor to proceed.

MR. SINSEL. I don't ask of this Convention any peculiar privileges. I certainly ask all that is accorded to others. If the Convention think I am out of order, why let them say so and I will be very willing.

Mr. Lamb's motion was agreed to and Mr. Sinsel allowed to proceed in his own way.

MR. SINSEL. I was about to remark when interrupted that probably the Virginia tax payers of this state would not pay more than ten dollars apiece of revenue into the treasury under our present constitution, being about 300,000 inhabitants and that would only raise about $300,000. That would only be really about a dollar to the inhabitant.

Well, now, to levy this tax of ten per cent or ten dollars apiece of revenue, and what our families would pay would be one dollar to the family. Can any one expect to carry on an efficient system of free schools with that amount of money?

In reference to this amendment: the gentleman from Harrison would only be perfecting the substitute of the gentleman from Ohio, which would then fix a definite time and require this to be done within five years. Aa to that I have very little difference so we have a clause in this Constitution under which if the people hereafter demand a good and efficient system of free schools, the legislature may do it without being trammeled in the manner in which the vote just taken would place them. Because I say here that that vote fixing this sum at ten per cent is worse than no system at all. We had better not say a single word about schools in this Constitution than to limit the legislature in that way. Now, governments are established for the good of the governed generally. If a work of internal improvement adds to the benefit of part or all the citizens of a state, how much more would a thorough system of education doit? Is not one just as much a state enterprise as the other? Is not the system of education more even of a national character? It is impossible to enslave freemen who are intelligent and well informed. The nations have found little difficulty in enslaving the African race because they had no education at all. I repeat if the friends of internal improvements expect any aid at all in constitutional provisions in this Convention in order to carry them out they must come up to this work of free schools - the free school system of the republic generally uniform throughout every section of the state. The internal improvements that must be made hereafter must of necessity be local. Many localities have all that they really need or desire. I came here expecting to carry out the broad principle of bringing people everywhere upon a level of equality so far as internal improvements were concerned. We have them in our midst; we need no more; but I was disposed to give a constitutional guaranty to those sections that did not have improvements, that they will have them, and I would be willing to be taxed to help to pay for it. But while I do that I shall expect them to come up and lend a helping hand to this institution which will act uniformly throughout every portion of the State.

MR. HERVEY. I am utterly surprised at the line of argument adopted by the gentleman who has just taken his seat. Why, sir, the vote that has just been taken appears to have unsettled his nerves. He has become alarmed, frightened and he uses threats to accomplish his purpose. That is to say, he says to the internal improvement party of this Convention, if there is such a party, "If you don't come up to this work in this case and vote money for schools we will vote no money for internal improvements." Well, now, sir, he will not get any money out of me for internal improvements at this or any other time when the constitutional question comes up. I am not very familiar with the legislation of this state; but I have conversed with men who make that legislation and I have it from the best authority in the world, the evidence of these men that the present deplorable state of finances of this state has been brought about by just such propositions as has been made by the gentleman from Taylor: "if you vote for my bill, I will vote for yours." Those propositions have been piled up and millions of dollars have been squandered. That is not the kind of an argument to dictate a policy for this Convention. No, sir. He has resorted to some calculations in regard to the question. He has assumed that $300,000 is the amount of the revenues in the new State. Now, why assume it? Are not the reports at hand, and every man can investigate them. I was looking at these reports this morning and you cannot find three hundred thousand dollars in it, nor any sum like it. And my friend from Ohio has run into the same error on that question. The revenues embraced in the bounds of the State is half a million dollars or more. Those counties of Greenbrier, Monroe, Mercer, etc., are absolutely within the bounds.

MR. BATTELLE. My statement was that the amount of revenue derived from taxation in the bounds of the proposed new State was some $480,000 the last time heard from.

MR. HERVEY. That is what I make it, exclusive of licenses, which runs it up to $500,000 or perhaps a little more. But if you include counties lying along the Baltimore & Ohio Railroad you have an additional sum of $180,000. In other words, the revenue of the new State, if it includes those counties on the other side of the Alleghenies will amount to $700,000. That is nigh enough to make a basis of calculation. Now, sir, gentlemen allege that if you lay a tax of ten per cent only upon those revenues, the system of free schools is dead. How much money do you want to carry on a system of free schools in this State?

MR. BATTELLE. If the gentleman please, he certainly is mistaken in his figures. The $480,000 includes the revenues derived from the bounds of the proposed State, licenses and all.

MR. HERVEY. No, sir.

MR. BATTELLE. And my argument is that they will not meet that amount again for years to come.

MR. HERVEY. Well, sir, that is probably a miscalculation. We agree that the revenue is $480,000 - say for the sake of easy calculation, $500,000. Now ten per cent on that is $50,000, and I take his own figures as to titheables. He estimated $1 a head would be raised on the titheables, one-half of that to go to free schools, which would be $35,000 more, making $85,000 on this side of the Alleghenies to go to this purpose of schools alone. But, sir, suppose the transmontane counties come in and become part of this new State, then we have a different calculation. The revenue is then $700,000 and ten per cent is $70,000, with titheables over $45,000, a gross sum of $115,000. Are you going to kill the free school system by appropriating $116,000 in this new State? Kill it dead? Now, sir, I want to know how much money will breathe the breath of life into it. If $116,000 will kill it, how much will make it alive? The gentleman assumes that hereafter in consequence of disastrous loss, the revenues of the new State must diminish. Why? Because of the inability to pay. Now, sir, is not that argument as good against the propriety of levying a heavy tax for schools as anything else? When the gentleman proves that position, he proves mine. If he proves that the people of the new State will by the desolation of war be unable to raise these revenues he also proves that they will be unable to bear this taxation. He assumes that is so. Perhaps it is. I have no objections; care nothing about it.

I think the Convention will not sustain the substitute as offered by the gentleman from Ohio. I take it the action of this Convention will still remain the action of the Convention that stands. And I think further that the sum of either $88,000 or $116,000 is a very heavy sum with which to inaugurate a system of free schools.

MR. POWELL. I hope the vote will be taken on the amendment that I have offered. I don't conceive that the argument of the gentleman last on the floor is applicable to that amendment, and I hope the amendment will prevail. If a free school system is so necessary, which I believe it is and will be so efficient in enlightening the youth of West Virginia the sooner it is in operation the better. Let us then vote on the amendment, adopt it or reject it as the Convention may see proper, and then such arguments as we have just listened to will be in order.

MR. POMEROY. I too hope the vote will be taken, but I have a different view from that of my friend from Harrison. I hope his amendment will not prevail. Why postpone the inauguration of this system five years if it is important?

MR. POWELL. This amendment does not postpone it. The substitute does not fix any definite time; this says they shall not postpone it longer than five years.

MR. POMEROY. I am well aware of that fact. I much prefer the report of the committee fixing three years or as soon as practicable. It will take at the least calculation five to ten years to get this system fully into operation after the action of the legislature is voted, and why should we postpone it for five years or give them the limit to run five years; for they will very likely do nothing until the time is out. I much prefer the report of the committee. I believe if this whole subject should be postponed a few days until these fogs over the city of Wheeling would clear off perhaps some of the darkness would get off gentlemen's minds and they would see the importance of the school system more than they do now. There is no one thing that will induce immigration into this new State so much as this. When men are about to emigrate one of the first inquiries they make is, where can I educate my children? Can I have the same advantages I have here? I know some men will look to the richness of the soil and not to the advantages of education; but the great mass of them will make the inquiry; and therefore I am in favor of inaugurating this system as the best plan possible, at the soonest period possible.

MR. DERING. Mr. President, I would like to hear the amendment read.

Mr. Stuart of Doddridge called for the reading of the substitute.

The substitute was read and Mr. Powell's motion stated.

MR. DERING. That substitute meets with my approbation most decidedly, Mr. President, and I am in favor of the substitute. I am of opinion that the people from abroad will appreciate our situation and circumstances; that they will understand the difficulties under which we labor, will see the amount of taxation that will be upon us; will see that the country has broken down, and that we are not able to jump into being full grown; and it seems to me to be the part of wisdom to leave it to the legislature who in their wisdom will as soon as they deem it practicable put this system into operation. The legislature will be informed of the will of the people. They will defer to that and be guided by it and by the circumstances as they arise, and thus they can act more wisely than we can now. Why, sir, everything is in the vaguest uncertainty. We are struggling for national existence and to put our State into operation in the midst of a national revolution. That is the central idea to all we do or say - to get a new state first, and afterwards as circumstances may dictate put into operation the various measures that shall promote its prosperity, its wealth and its general welfare. It would be the part of wisdom in us to leave this whole thing in the hands of the legislature, who can act understandingly on the subject, and they will as soon as practicable put it into operation. I have no doubt we will all be benefited by this free school system, that it will attract and increase population and we will thereby reap from it the advantages of a development that cannot take place until we get more people. For the next five years I know we will be in a down-trodden condition in West Virginia even if she does arise and get into the Union as a state. It seems to me it will take us at least five years to get a start. We are revolutionizing the whole operations of the State of western Virginia; making a constitution altogether different from the old one, and it will take our people some time to be educated to these new ways. Let the legislature and the people talk over this matter a few years and when they deem it expedient and practicable, and possible, they will put this system into operation. It seems to me, sir, that we ought to leave it to the legislature.

MR. STUART of Doddridge. I hope the friends of this measure will not encumber it by inserting the amendment of the gentleman from Harrison. I am in favor of the substitute; but that would be annulled by the adoption of the amendment of the gentleman from Harrison, and I would necessarily be compelled to vote against the substitute if that amendment is adopted. I am sorry the substitute is not printed, but I hope the amendment to the substitute will not be adopted.

MR. POWELL. I wish to add to the amendment so as to make it read: "within five years after the adoption of this Constitution." I do not regard it as complete without that addition.

I would say, in reply to the remarks of the gentleman from Hancock who is desirous that this system of free schools shall go into operation sooner than five years, that this does not prohibit the legislature from organizing the system at its first session under the direction of this Constitution. On the other hand, if we leave the legislature to choose their own time, it may put it off five, ten or fifteen, or twenty years; and the present rising generation will have passed beyond the age when they could be benefited by the proposed system. I do contend that it is our duty to limit the legislature and compel them to organize a free school system within five years; and if gentlemen think that too soon, let them put it off longer, but let the time be fixed beyond which they shall not postpone. If they find they can organize the system with such school fund as they have, why let them do it. Don't say they shall do it just at that precise period but that they shall do it within a definite specified time. Because we may have old fogies - those who are longing for a return to the "fleshpots of Egypt" in sufficient numbers to control the legislature through their influence and arguments and other influences they may bring to bear on the legislature, and continue to put it off, year after year, until there may be no system ever organized within the limits of the new State. Let us say, gentlemen, you may go so far but no farther; you must do it within the prescribed period; you must put it into operation within a certain time; and then they will begin to prepare for it. The people will be looking for it to come at that time and will be getting ready for it; and men will be preparing themselves to bear whatever burden it may be.

MR. PRESIDENT. I would be willing for the committee to have placed direct on me, I would be willing to pay almost any sum within my power in order that we may have this free school system in operation. We want it; our people want it, and as soon as possible. They want it immediately; and I believe the people as a general thing would be willing to bear the amount required to put it into operation almost immediately. Then if this Convention leaves it optional with the legislature, it may be years before we have a free school system here. We are leaving already sufficient power in the hands of the legislature. We are leaving them, I fear, a little too much to do; we are leaving them too much latitude. Let us bind them up a little closer. Had they been bound up close years ago, we would not have been in our present position. Virginia would not have been in rebellion against the general government. As the Indian says "white man very uncertain." They may put off this - I was going to say, brightest period of the history of Virginia - for years, that period when a thorough system of free schools is organized in Virginia. I do trust the Convention will not give the legislature such unlimited latitude.

MR. HALL of Marion. Mr. President, I trust that if it is ascertained definitely that from this day to all future time our people are to become so corrupt or so stupid that there is no possibility that they can be represented by men who have at heart the interest, and who have the capacity to know what is the interest, of this people, that we will cease our troubling, save the balance of the money that was appropriated, or at least divide it out, and go home. I have heard so much about this thing that I can reduce it to no other conclusion but that with us and in us is to cease all virtue and all knowledge and that when we die all posterity is to live on what they have built up like the laws of the Modes and Persians that it may be beyond the power of those who follow to change or move. Who sent us here, and who are we? How did this revolution turn up all the ability and all the wisdom that ever has existed or ever shall exist? We were sent here by whom? By the very persons who will send persons here to act in the capacity of legislators. I know it is a very pretty theme for us to arraign everybody else, because when we cry stop, they have to stop and look at us. Now, we have just as much confidence in the legislatures that will be assembled hereafter under this Constitution, or under any other as I have in the honorable and dignified body here. Just as much, because the very same people that sent us here will send members of the legislature here from amongst them.

MR. SINSEL. Are you confining yourself to the point before the Convention?

MR. HALL of Marion. Yes, sir; if I am not, I will be called to order. If these things be true, that all the legislatures that meet hereafter are to have no sense or no purity, then there is propriety in the motion of the gentleman from Harrison, to make them do it. But then let me ask one question: will you compel them to make brick without straw? Suppose you say the legislature shall do it, and they don't do it, what will you do with them? Will you hang them?

We are acting here now in a matter of the utmost importance, without any data before us, under circumstances without precedent since the days of the revolutionary struggle. We cannot tell what may be our situation tomorrow or a week hence, a month or next year. We do not know what may be our resources. The proposition as embodied in the substitute by the chairman of the committee looks to that condition and requires of the legislature everything we can with propriety. I was glad to see this thing proposed to be left, to some extent, to the wisdom of the legislature; or, rather, to the wisdom of the people, because they will send here persons who represent their wisdom. I was glad the proposition came from the chairman himself. I hail with pleasure anything looking to that and trust we will not trammel it with this amendment, but that we will vote down the amendment and adopt the substitute.

MR. SOPER. I am in favor of the substitute because I am ready to confess that I have not the data before me by which I can form anything like a probable opinion as to the result of the sections as first reported. I should like this amendment read that the system shall be organized within five years as far as practicable the legislature shall put the system into effect.

MR. BATTELLE. It now reads "as soon as may be practicable."

MR. SOPER. Yes, but refer to the amendment of the gentleman from Harrison.

MR. BATTELLE. With the approbation of the gentleman from Tyler, I suggest to the gentleman from Harrison that he modify his amendment to read "as soon as may be practicable within five years."

MR. POWELL. I accept that.

MR. HALL of Marion. I do not want to have it understood that this shall be put into full operation within five years.

MR. SOPER. Suppose that in three years they should see their way to provide for three months schooling?

MR. BATTELLE. It leaves it perfectly open to do so. It does not compel the legislature at the end of five years to have a school any specified number of months but only that they shall provide as soon as may be practicable within five years for the establishment of a thorough and efficient system. It does not fix any status or condition to which these schools must arrive in five years.

MR. SOPER. With that explanation, I hope the Convention will adopt the measure as now presented.

MR. STUART of Doddridge. I object to the modification, because I want to vote for the substitute as it is.

MR. PARKER. The amendment as I understand it is that the legislature shall do it as soon as practicable, but that they must do it within five years.

MR. SOPER. I so understand it, but wish to have it so that at that time they shall appropriate all the means within their power to be distributed for the benefit of common schools. For that reason I am in favor of the amendment proposed by the gentleman from Harrison.

MR. POMEROY. I can cheerfully vote for the amendment as modified, for that meets my views exactly. I can vote for the amendment of the gentleman from Harrison.

MR. VAN WINKLE. There has been no change made from the proposition as written.

MR. STUART of Doddridge. I object to the modification of the substitute, not the modification of the amendment. The amendment of the gentleman from Harrison is to "as soon as may be practicable" and insert "within five years after the adoption of this Constitution."

MR. VAN WINKLE. I do not know but it is a little like the preacher who announced there would be services on that day week, Providence permitting it whether or no. I am rather inclined to favor the proposition as it stands without the amendment of five years or any other limited time; and for this reason, sir. I drew the attention of the Convention yesterday to what might be the probable state of the finances of the new State, and I have seen nothing to change those views. It may under the circumstances in which we are placed take the whole of that time to establish a credit sufficient to have the money we shall necessarily want for the purpose of public buildings and so on. I may be willing to borrow money for such purposes, because these are things which are to be enjoyed by posterity and they ought to be willing to pay for their portion. This difficulty would arise and might be fatal to the scheme if the five years elapsed without the legislature being able, owing to the condition of the State finances, to take one step towards this school fund. Of course all the constitutional provisions we can put in here will not compel anybody to perform impossibilities. If then it gave them an opportunity to pass it by for all the time allowed in this limit, it would be very difficult to get them to work at it afterwards; and standing as it does the obligation would rest on them to act upon it as soon as the circumstances of the State would permit them to do anything towards it. I am therefore rather inclined to favor the proposition as it stands.

I wish to say one word before I sit down in reply to the remarks of the gentleman from Marion a few minutes ago in reference to the supposition that the legislature is or would be corrupt. Now, I have announced my wishes and views several times that the legislature should be relieved from as much of that kind of business as leads to these things as possible. I do not, however, presume that the legislature is to be necessarily corrupt. But these things expose them to solicitations, solicitations from their constituents, solicitations of those to whom they must look perhaps for further political advancement; from their friends and from other parties; and, sir, a man must be something more or less than human if these things do not tend to operate upon and bias his mind. My object is simply to free the legislature as far as possible from such solicitation, particularly with reference to this proposition. That was one of the objections to the county court, that the men who were to administer justice in the country were subject to these private solicitations with reference to legislative matters in the county; and then instead of requiring a majority of them to act they have elected two, three or four to do the legislative work for the county. If there are any gentlemen here who do not live at county seats, it is the game that is played very frequently at county seats to wait until late in the week until the country magistrates had gone home, and then we could pass what we pleased.

This by the way, sir; but I repeat I favor the proposition as it stands.

MR. BATTELLE. I do not think if this amendment obtains that it will bind the legislature up to an obligation to bring about any specified status in relation to the schools. It only provides that within that time, as soon as practicable, they shall go to work. It is free from the objection urged often yesterday against the scheme; and in reference to one intimation thrown out by my friend from Wood I would say that the legislature - I think this legislature is of that opinion - that the legislature ought not to hold this scheme in abeyance in behalf of any other interest of the State whatever. That is the ground I maintain all the time through this report. They ought not to hamper but be disposed to complete this scheme in preference to any other as being more vital to the welfare of the whole people of the State; and it is just as binding as any other injunction laid on the legislature to provide first for the highest interests of the children of their own people; and merely material facilities like expensive public buildings can wait better than your schools can. Plain accommodations will serve for a few years; but time will not wait for the education and improvement of the rising generation, whose moral and intellectual welfare are immeasurably more vital to the welfare of your State than a costly state house. But still, even if this amendment obtain, as I before said, the Convention will bear in mind that it does not make it obligatory on the legislature to perfect the school system within the time set to any specified status. It is only that they go to work, and at once, and that the system shall be as nearly perfected as practicable within the time named. And now I would ask it as a favor of the Convention without any desire whatever to create any debate, whether long or short, that they do a little solid thinking on this question.

MR. LAMB. The substitute, if amended as proposed would certainly be imperative on the legislature to establish within the five years a thorough and efficient system of public free schools. I would a great deal prefer the substitute as it originally stood. I think the two phrases are entirely inconsistent with themselves: "as soon as may be practicable" in the substitute while the amendment requires them to do it within five years, whether it be practicable or not. That is certainly the way it reads to me. I would have no objection to it, but if you put in a fixed period the legislature are certain to do nothing until that period ends whatever may be the condition of the country. They will put it off until towards the end of the period, if you have a fixed period there. As to fixing the term of five years, it may be or may not be possible and consistent with the condition of the country that an efficient and thorough system could be established within that time; for that is what the provision would then require. Who can foresee what may be the condition of West Virginia five years hence? So far as it is possible, I would be glad to see the legislature go to work at this at once. If you do stick in the term of five years at all, you will have nothing done, whatever may be the condition of the country, until the end of that period approaches. I would a great deal prefer the substitute as it stood originally.

MR. BROWN of Preston. I am not going to say, Mr. President, but just a word, and then humbug the Convention and make a speech half an hour long. All I have got to say about this matter is that lam in favor of this substitute without dotting an "i" or crossing a "t", and opposed to the amendment of the gentleman from Harrison. I was just talking to my friend from Putnam, and he and I came to the conclusion that we want to get home to celebrate the next Fourth of July at home; and we think if we do that we will have to get along a little faster than we are doing.

The question was taken on Mr. Powell's motion to insert after "practicable" the words "within five years," and it was rejected, the question recurring on the substitute offered by Mr. Battelle.

MR. VAN WINKLE. I wish to offer a further amendment. Instead of the clause: "They shall also provide for raising in each township, by the authority of the people thereof, a sum not less than one-half the amount required for the support of free schools therein," I propose to substitute an amendment which changes the principle of the thing to some extent, and to that I will call the attention of the Convention, and instead of the clause I read, insert this: "The sum annually appropriated shall be distributed among the several townships of the State in proportion to the sums levied by each independently of the State tax for the support of such schools within its boundaries." That is to say, it proposes to leave it optional or voluntary with each township to raise such a sum by township tax without interfering with any State tax that may be laid by the legislature for the purpose; but that each township shall raise such an amount as the people in township meeting may think proper; then that in the distribution of the State fund throughout the townships of the State, it shall be in proportion to the amount levied by the township. The effect of this will be, as I think, to produce some degree of emulation among the different townships as to the amount they will raise. They will say if this fund is to be distributed in proportion to what we do for ourselves we will do a little more; and I think in introducing a new system like this, although it has been very successful elsewhere, that to leave it, as it were, optional with the people of each township to do what they think they can afford to do, will tend to make the system popular with the people themselves. Now, there can be no fear after a few years but what each township will do its whole duty with reference to it. There will be some that will understand it from the first who will be willing to tax themselves heavily to get this system inaugurated as soon as possible on a good foundation, a broad and liberal foundation. An adjoining township may not feel so at first, but it will see its neighbor thriving under the system, see its children well clothed and instructed and also have the knowledge that by being a little liberal themselves they would get a more liberal appropriation from the State, it appears they will be induced next year or the year after to raise their own amount. Thus, instead of forcing the people - binding them as a compulsory measure, it will come upon all as a voluntary measure. But, sir, we all know the difficulty of establishing any system of free schools in the western counties here. The population is sparse, and it seemed almost impossible to do anything except by the introduction of the township system. In connection with that system, I think to place the option with each township as I propose, we shall overcome many of the difficulties that would otherwise be encountered. It is very true there may be some townships whose population is so sparse or the features of the country so, that they cannot immediately erect schools in sufficient number to be of convenience to all the inhabitants but if they cannot, why they will ask, for the time being, a portion of the tax. These townships that are so situated that they cannot to any great extent avail themselves of the benefit of the operation of the plan will not be forced, unless by means of a state tax, to raise money for their townships; and if they will, notwithstanding the disadvantages they labor under feel it as they ought to a solemn duty to have their children educated - if they will be willing to cut off some luxuries and to appropriate a little more money to the schools, they will then get this advantage of aid from the State, and may in that way be enabled to institute a beneficial system for themselves. There is this stimulus, then - this reward: if they will be liberal that liberality will be met with corresponding liberality; and on the other hand they will know that if they are inclined to be stingy about it - if they do not recognize the advantages of education and put their hands in their pockets they will find that he who gives little will get little.

I will not detain the Convention with any further remarks. It changes the principle of distribution. I think the Convention from previous remarks and what I have suggested now will be able to clearly see what it is I desire and vote understandingly on it.

MR. BATTELLE. My first objection to the amendment offered by the gentleman from Wood is this: that he proposes to fix a detail which the substitute, I think wisely, leaves to the legislature, if there is anything in his principle.

MR VAN WINKLE. It is no more a detail than what it proposes to substitute for. One says one-half shall be raised; the other says what amount they please.

MR. BATTELLE. The substitute says not less than one-half shall be raised by the people of the township; and as I said before, the amendment seeks to fix a limitation - it seems to me a detail - which the substitute most wisely leaves to the legislature; and it seems to me it will cause a very unequal operation. In one we will have a system; in another none. In one county there will be schools; in another county, not - at least in the beginning. Along with this plan of raising a state fund, I prefer to leave the whole matter of levying the local funds to the people themselves, simply granting the power to the legislature to make such necessary provisions as may be requisite on the subject. I do hope the Convention will stand by this feature of the report.

MR. SINSEL. I am opposed to the amendment of the gentleman from Wood for other reasons than those offered by the gentleman from Ohio. To carry out that principle you would just help those who are able to help themselves - injure the poor people and benefit the rich. Here might be a township that might be wealthy. They could raise a liberal amount, and they would divert the whole of these State revenues into their townships and take it away from the poor districts and give it to the rich ones.

MR. VAN WINKLE. I would just ask if the townships raise one-half where is the other half to come from?

The question was taken on Mr. Van Winkle's amendment, and it was rejected.

MR. HAYMOND. Mr. President, I came here as a free school man. I am one today. The committee brought in their report. I would have been willing to adopt that report at a word, and saved all this trouble. I was for raising this State up, sir, with this free school system. I am satisfied, sir, we never can make this a great state until we establish free schools throughout its length and breadth. All states where they have free schools show us that these are facts. But when that report was brought in, I saw the first day the death-blow struck at it - struck to the heart. I so told my friends, it was gone. I now, sir, am for the substitute of the gentleman from Ohio. I had prepared one which is about the same thing. If his fails I shall offer mine.

MR. POMEROY. I should like to ask the chairman of the committee whether he is willing to let this substitute extend only to the 2nd, 3rd and 4th sections. If so, I will vote for it; but if it strikes out all the provisions in the 5th section by which the legislature is to make this scheme take effect, I shall have to vote against it.

MR. BATTELLE. I have no objections to that at all.

MR. SINSEL. I hope you will not let us vote on it as it is. We will put it there.

MR. BATTELLE. The proposition would be to strike out from the substitute the last sentence in it and except from the matter for which it is to be substituted the 5th section: "They may further provide whenever they deem it expedient for the election of a state superintendent of free schools and such state or township boards of education, not specified in this Constitution, as may be necessary to carry out the objects of this article." The gentleman proposes to leave that out and retain the 6th section which covers the same ground and more fully. The 5th section as it stands now reads:

"5. Provision shall be made by law for the election, powers, duties and compensation of a general superintendent of free schools for the State, whose term of office shall be the same as that of the Governor, and for a county superintendent for each county, and for the election, in the several townships, by the people, of such officers, not specified in the Constitution, as may be necessary to carry out the objects of this article, and for the organization, whenever it may be deemed expedient to do so, of a State Board of Public Instruction."

The Convention, I suppose, now comprehend the idea of the gentleman from Hancock; and I am free to say myself that I think that the 5th provision as it stands is more efficient in its operation and action than the last sentence of the substitute covering the same ground; and if the Convention agree to it, I am willing to so modify the substitute as to leave off the last sentence. I withdraw the last sentence of the substitute.

The question was taken on the substitute with this modification, and it was adopted.

MR. BATTELLE. I move the adoption of the 5th section.

MR. SOPER. I propose an amendment, that "the secretary of the commonwealth shall be the state superintendent of free schools until provision be made by law" to come in at the beginning of the section.

There will be a very little to be done by the state superintendent until this system comes into full operation, and even after it has many years, the secretary of state will be able to transact all the business that will be necessary to give full effect to the system without interfering with his duties as secretary. If it should require an additional clerk, why a small sum may be added by the legislature to his compensation as superintendent of common schools. Now, sir, if we go to work at once and elect one he will want to reside at the capital and will require a sum very near probably what we are now paying the secretary of state. I think it would be an unnecessary draft on this fund at the commencement. I have known some duties to be performed by the secretary of state and I never knew any additional compensation to his salary over $250, saving a full state officer and salary. I believe in Ohio the state superintendent gets $1200. I am satisfied the secretary of state can attend to all the business necessary without increasing his compensation over one or two hundred dollars for a great many years to come. It is with a view of testing the opinion of the Convention on this subject that I have made this motion, as the section may want some alteration in its phraseology if it shall be adopted.

MR. BATTELLE. I do not think that is the proper place for an amendment of that sort, Mr. President, if it is desirable to make it. It will be observed that this provision does not state when a superintendent of common schools shall be elected. I think the whole power in reference to the matter is with the legislature now. "Provision shall be made by law for the election, powers, duties and compensation of a general superintendent of free schools for the State." It does not say when the provision shall be made; does not say when the duties of the office shall begin. It is possible a superintendent will not be needed for five years, and if so the legislature will not provide for his election till that time, I suppose. So far as anything in the article is concerned, there is no obligation on them to make a superintendent any sooner than is needed; but I think every gentleman here will agree that that officer will be necessary just so soon as the legislature is really ready to go to work in this business; and I think the experience of all who have any familiarity with the workings of school systems elsewhere, or indeed of the operations of government on other subjects is that you cannot very well have one man perform successfully the duties of two offices. To be a secretary of state and superintendent of public schools tacked on to it, he will have functions of one office entitled to his first consideration, while the other will be a kind of gratuity, a matter of courtesy. That is the way it strikes me. Indeed, I don't know but we have a constitutional provision somewhere that no man shall perform the duties of two offices.

MR. VAN WINKLE. Two of a different character.

MR. BATTELLE. Well, these would be of a different character. There is no need to attach these duties to another officer, to be performed by him in a merely perfunctory way, until the work of a .superintendent is needed. When it is needed the legislature is authorized to provide for it. A provision of this kind for the temporary imposition of these duties, before any duties exist, is in any case a detail that has no place in the Constitution; it belongs to the legislature. My own idea is that when a superintendent is needed he will be very much needed; that he will be needed to give his whole time and energies to organizing and starting the system to work throughout the State. The secretary in any event could feel but a slight interest in this work; he could not leave his office to travel over the State to give his personal efforts and presence to it. When the time comes we shall want a man who can do this and put his heart and mind wholly into the work. When the legislature finds the time ripe, they can make provision for this.

But all that I now wish to say about this amendment is that I think it is unnecessary. If the legislature wish to adopt that course, they have the power to do it without any amendment. There is no obligation here to provide for a superintendent any sooner than necessary.

MR. LAMB. I would ask the chairman whether there is to be incorporated, say at the commencement of the section something like this: As soon as may be admissable free schools shall be established and provision made by law for the election of a state superintendent and such other superintendents and boards of education as the legislature shall deem expedient?

MR. BATTELLE. I would prefer - as it strikes me at first blush - the amendment of the gentleman from Tyier. If I rightly comprehend the duties of this officer, he will be a very important agent in helping to get the system on its feet - visiting and corresponding with the county superintendents and in suggesting proper measures in the general interest of the system throughout the State. I would prefer the amendment of the gentleman from Tyler.

MR. SOPER. The very first step the legislature will have to take will be to have some officer at the head of the institution in order to give direction to the several counties and receive reports and make representation to the legislature at its next session. I know of no individual so competent and proper as the secretary of state. Now, sir, the duties of that office are not to be compared with those of the auditor, and he can perform this duty under direction of the legislature until it becomes necessary to have a person devote his whole attention to this matter.

The question was put on Mr. Soper's amendment, and it was rejected.

Section 5 was then adopted, and the Secretary reported section 6:

"6. The legislature shall foster and encourage moral, intellectual, scientific and agricultural improvement; they shall make suitable provision for the establishment and maintenance of institutes for the blind, mute and insane; and, whenever it may be practicable to do so, for the organization of such other institutions of learning as the best interests of general education in the State may demand".

MR. VAN WINKLE. I should like the words "whenever it may be practicable to do so" transferred to the beginning of the second clause. It seems now to make it too imperative.

MR. BATTELLE. I accept the gentleman's suggestion.

MR. VAN WINKLE. The State of Maryland has never provided an institute for the insane, blind and mute. Their insane have always been sent to the States of Pennsylvania and Virginia, I think, on an understanding with those states. The restored government of Virginia have been under the necessity of sending its patients to the Ohio side. Whether it would not be better to say that "they shall as soon as practicable make suitable provision for the blind, mute and insane" and for the organization of such institutions of learning, etc.

MR. BATTELLE. I do not think with the other provision, which I very cheerfully accept, there would be any danger in retaining the rest of the section as it is. We cannot hope to have a complete and thorough system of that kind for many years. We have one institution of that kind now. Whether we will be able to complete it in its present proportions or style, we will be able to make some provision; and with the insertion of the especially qualifying words suggested by the gentleman from Wood, I do not think there is any danger to the resources of the State to be devoted to the classes of persons to whom all our hearts are or should be open. I accept the first modification as offered by the gentleman from Wood.

There being no objection, the words were transferred as suggested by Mr. Van Winkle.

MR. VAN WINKLE. I do not wish to be tenacious about words but it strikes me that the clause would be more valuable by making it obligatory on the legislature to provide immediately for the care and education of such persons even before they are able to erect an institute of our own. I do not understand by the word "institute" a building but a corps of instructors or a school of our own.

MR. BATTELLE. But would not the greater include the less?

MR. VAN WINKLE. I think not when the greater is so specific, sir.

Well, sir, I will move that they shall "make suitable provision for the maintenance and education of the blind, mutes and insane," instead of the "maintenance of institutes" for such persons.

MR. BROWN of Kanawha. I wish to offer an amendment to the section. I question very much the propriety of the whole section, and if it is to go in, then I wish to add "agricultural and internal."

MR. BATTELLE. I respectfully submit to my friend from Kanawha whether it is exactly courteous now to seek to saddle our poor report here with this great and overshadowing question of internal improvements? Do let us take one thing at a time. Our committee have confined ourselves to the legitimate sphere of our business. That I think all gentlemen will agree. I suppose, however, the gentleman offers this in mere pleasantry.

MR. BROWN of Kanawha. If this were confined to the necessities of the class of individuals alluded to in the 71st line, I should not have offered it. But it looks to a wider range. But it looks to fostering and encouraging intellectual, scientific and agricultural improvement, and I do not see that agricultural improvements stand on any higher ground than internal improvements; because they are so intimately connected that it is difficult to touch one without the other. I confess, with the gentleman, that as respects the unfortunate I feel with him, if he feels at all, that it is the noblest trait or characteristic of any state to make ample, not niggardly, provision for these unfortunates. I confess, sir, that when I have been in the lunatic asylum it made me feel painfully and melancholy; but when I have been in the other for the deaf and dumb and the blind in this State, I have seen large halls filled with these unfortunates and have seen there the development of mind under the education and tutelage of instructors in every department excelling in the results of their education, and seeing the provision the old mother state had made for them, I love the old commonwealth and am proud of her for that alone if there was nothing else in her history to bind me to her. I am ready to adopt here and everywhere any proper provision for this class of people; but, then, as I said, there are other and different subjects introduced, and looking to all the varied interests of the State when you embark in so wide a range then I do not see why exclude one of the most important intimately and closely connected with the subject that is introduced. I think therefore the section would be improved by introducing the word "internal," which I indicate, or else striking out all the residue.

MR. BATTELLE. As I intimated before, the committee have carefully confined themselves to the legitimate sphere of such a committee. They were appointed a committee on education, not internal improvements. I grant their provisions here are in general terms perhaps, implying nothing very specific; and I may as well say here that they are quoted from the constitutions of several states of this Union both South and West and North. I believe I found them in as many southern states as in other sections. Agricultural improvement, of course, refers to scientific aspects of agriculture, to affording the means of instruction, so far as may be legitimately done, by diffusing agricultural information; and the whole scope embraced here is confined to education in its special aspects. The gentleman proposes to foist into our report a subject that has nothing more to do with it than a disquisition on China.

MR. DERING. I am opposed to the amendment of the gentleman from Kanawha, because it is anticipating that question before the proper time for discussing it. The committee of which I have the honor of being a member have embraced that subject of internal improvements, and it will necessarily come up when the report of the Committee on Finance and Taxation comes up. Sufficient to the day is the evil thereof. I trust we will not mix up internal improvements with our educational system.

MR. BROWN of Kanawha. After the remarks of the gentleman from Monongalia, I will withdraw the amendment; but I confess very candidly to the gentleman from Ohio that the construction he gives to this is different from that which struck me at first; and I am not sure he could maintain this construction unless perhaps it is to be found in. a report on education. But that the legislature should foster and encourage certain improvements -

MR. BATTELLE. Not "improvements" but "improvement."

MR. BROWN of Kanawha. Perhaps his construction is right, and I will not press it.

The amendment offered by Mr. Van Winkle was agreed to and the section as amended adopted.

MR. BATTELLE. Is it in order now to propose the amendment I proposed yesterday, to the first section?

THE PRESIDENT. In passing over the report a second time, it would be fairly in its place.

MR. VAN WINKLE. I stated yesterday, I believe, that I was opposed to this amendment of the gentleman, but as I think it is better to dispose of it, I move he have leave to offer it at this time. The Committee on Revision, who have this to report back, consider it desirable to have the report given to them as complete as possible. I move a suspension of the rule to enable the chairman of the committee to offer his amendment.

The Secretary reported Mr. Battelle's motion:

To amend the 1st section by inserting after the word "specified," in the 5th line, the following: "The revenues accruing from any stock not pledged to the sinking fund hereafter acquired by this State in any bank; and the proceeds of the sale of such stock if the same be sold."

The question was put on the motion and it was adopted.

MR. PARKER. I have examined it more particularly, the next clause, and it seems to me, to place it clear beyond doubt as we would wish to place it, the amendment should be added in the 7th line.

THE PRESIDENT. The gentleman from Cabell can effect his purpose when we are passing over the report again.

MR. PARKER. I thought it was to go to the Committee on Revision.

Mr. Lamb read the rule in regard to the matter.

MR. VAN WINKLE. The precedent has already been established in reference to this matter. The reports as they have progressed and got to the stage that this is in now, have been passed by for this purpose; a copy prepared embracing the amendments and printed again for the use of members. Then they have their second reading, when motions to strike out and insert are again in order. Then they pass to the Committee on Revision. The Convention is then done with them except to supervise the report of that committee. But to give this report our second reading now would be premature. The report of the Committee on Fundamental Provisions was incomplete. It only purported to be a partial report. It was not therefore proper to print that. That committee will present by tomorrow their full report. The report of the Legislative Committee is not completed. The report on County Organization is gone through with, with the exception of the amendment I indicated and asked that it might be passed by. This is the first report that has been completed, to which there is no more to be done as I understand it. The motion properly would be that this report, as amended, be printed and then it will have its second reading, when it will be open to such amendment as may suggest itself on reading. We might have made no objection, but the second reading ought to be a deliberate thing, and after we have had full time to consider the amendments if any are introduced. It is exactly like the second reading of a bill in a legislative body.

THE PRESIDENT. No doubt time would be saved when we have passed through a report if we then adopted it.

MR. PARKER. In that case I reply, most willingly, Mr. President.

MR. POWELL. I move, instead of that, that the report be printed and for the present passed by.

THE PRESIDENT. The adoption of it will send it to the printer.

MR. PARKER. As I understand the rule, after we have been through a report section by section, the question recurs on the adoption of the whole report, and then comes on the right to make the final amendments, so that if it is now ready to go to the house for adoption, of the whole report, why, then, as I understand the .rule, now is the time.

MR. VAN WINKLE. The question now is simply whether we are willing to go it blind on this report. Are you willing to take this up when your minds are absolutely confused by the number of amendments? Is it not better, now that we have gone through the report by sections and amended it, to have it printed as amended and then let it come up on the second reading? This is in accordance with the rule we adopted in the beginning, and it was the intention that the second reading should be a deliberate thing. I trust the Convention will follow the precedent, and that the motion of the chairman to have this report printed as amended will prevail.

The motion to lay the report on the table and print was agreed to.

MR. POWELL. I now move to take up the report of the Committee on the Executive Department.

MR. LAMB. I move we take up the third report of the Committee on the Legislative Department.

MR. POWELL. I will withdraw my motion.

MR. DERING. I offer the resolution I send to the Secretary's table:

The Secretary read:

"Resolved, That after this day no member of this Convention shall be permitted to speak more than twice on the same question, and shall not speak longer than ten minutes the first time and five minutes the second time."

MR. HERVEY. I move to amend that by excepting the chairmen of the standing committees. I will support the resolution. I withdraw my amendment.

MR. BATTELLE. Up to the time of the consideration of the report of the committee of which I am chairman, I think when the proceedings of this house come to be written up, if they ever are, it will appear that I have not occupied on hour first and last of the time of this body prior to the consideration of our report; and I am in favor, both in theory and practice, of short speeches. But I am opposed to this rule. I believe in the right, as a right, of free discussion here, and I am opposed to cutting off at this stage of our proceedings at least, the privileges of any gentleman who may desire to address the house for a longer period than that. It is a matter of taste, about which every gentleman must regulate himself according to his own notions of propriety.

MR. POMEROY. We have a rule already. No gentleman is to speak more than twice on the same subject and only to speak once until all the other members who desire have spoken once. It is true we have not lived up to that. I concur with the gentleman who has just taken his seat, and I am opposed to the resolution because we lose time by it. I do not think there has been a disposition in this Convention to make long speeches. I am certain the operation of this will be just the opposite. Instead of saving time we will lose time.

MR. DERING. I am only doing what they do every winter in the Congress of the United States and every winter in our legislatures very frequently. As the session nears its close they always desire to cut off prolix debate and limiting the time of members, and I think it will be a great saving of time of members if we limit the members hereafter. No gentleman shall speak more than twice. That rule has been frequently violated. Now, sir, I go for sticking it in a resolution that he shall not be permitted to speak more than twice on the same question, and I think 16 minutes is long enough for any member to speak on most any question during the remainder of our session. Sir, I, like the gentleman from Preston, desire to spend my Fourth of July at home.

MR. LAMB. I shall not vote for the resolution, because I think it will embarrass and prolong business rather than expedite it.

The motion was adopted by ayes 28 to 19 noes.

MR. LAMB. I move to take up the third report of the Committee on the Legislative Department. I see the chairman of the Committee on the Executive Department here. If he prefers his report should be taken up now, I give way to that, particularly as some members tell me they are not ready to go into the consideration of the other.

MR. STUART of Doddridge. If there is no motion I move to take up the legislative report.

The motion was agreed to and the third report of the Committee on the Legislative Department was taken up.


(Submitted January 20,1862.)

"The Committee having reconsidered so much of their report as relates to the number and apportionment of members of the legislature, recommend the adoption of the following provisions as part of the Constitution of the State, instead of the 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th sections of the 2nd report:

"2. The senate shall be composed of eighteen, and the house of delegates of forty-seven members, subject to be increased according to the provisions hereinafter contained.

"3. The term of office of senators shall be two years, and that of delegates one year - commencing, in each case, on the 4th day of July succeeding their election; except that the terms of the senators and delegates first elected shall commence twenty days after their election. The senators first elected shall divide themselves into two classes, one senator from every district being assigned to each class; and of these classes, the first to be designated by lot, in such manner as the senate may determine, shall hold their offices for one year, and the second for two years; so that, after the first election, one-half of the senators shall be elected annually. Vacancies, in either branch shall be filled by election, for the unexpired term, in such manner as shall be prescribed by law.

"4. For the election of senators, the State shall be divided into nine senatorial districts; which number shall not be diminished, but may be increased as hereinafter provided. Every district shall choose two senators. The districts shall be equal, as nearly as possible, in white population, according to the returns of the United States census. They shall be compact - formed of contiguous territory - and be bounded by county lines. After every 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.

"5. The legislature may at any time, by law, divide any senatorial district, by county lines or otherwise, into two sections, which shall be equal, as nearly as possible, in white population. If such division be made, each of the sections shall elect one senator, instead of the district electing two; and the senators so to be elected shall be classified in such manner as the senate may determine.

"6. Until the senatorial districts be altered by the legislature after the next census, the counties of Hancock, Brooke and Ohio shall constitute the 1st senatorial district; Marshall, Wetzel and Marion the 2nd; Monongalia, Preston and Taylor the 3rd; Pleasants, Tyier, Ritchie, Doddridge and Harrison the 4th; Wood, Jackson, Wirt, Roane, Calhoun and Gilmer the 5th; Barbour, Tucker, Lewis, Braxton, Upshur and Randolph the 6th; Mason, Putnam, Kanawha, Clay and Nicholas the 7th; Cabell, Wayne, Boone, Logan, Wyoming, Mercer and McDowell the 8th, and Webster, Pocahontas, Fayette, Raleigh, Greenbrier and Monroe the 9th.

"7. For the election of delegates, every county containing a white population of less than half the ratio of representation for the house of delegates, shall, at each apportionment, be attached to some contiguous county or counties, to form a delegate district.

"8. When two or more counties are formed into a delegate district by the legislature, they shall provide by law that the delegates to be chosen by the voters of the district shall be, in rotation, residents of each county, for a greater or less number of terms, proportioned, as nearly as can be conveniently done, according to the white population of the several counties in the district.

"9. After every census hereafter taken by authority of the United States, the delegates shall be apportioned as follows: The ratio of representation for the house of delegates shall be ascertained by dividing the whole white population of the State by the number of which the house is to consist, and rejecting the fraction of a unit, if any, resulting from such di- vision.

"Dividing the white population of every delegate district, and of every county not included in a delegate district, by the ratio thus ascertained, there shall then be assigned to each a number of delegates equal to the quotient obtained by this division of its white population, excluding the fractional remainder.

"The additional delegates which may be necessary to make up the number of which the house is to consist, shall then be assigned to those delegate districts, and counties not included in a delegate district, which would otherwise have the largest fractions unrepresented. But every delegate district, and county not included in a delegate district, shall be entitled to at least one delegate.

"10. Until a new apportionment be declared, the counties of Pleasants and Wood shall form the 1st delegate district; Calhoun and Gilmer the 2d; Clay and Nicholas the 3d; Webster and Pocahontas the 4th; Tucker and Randolph the 5th; McDowell, Wyoming and Raleigh the 6th. The first delegate district shall choose two delegates, and the other five one each.

"11. The delegates to be chosen by the 1st delegate district shall, for the first term be both residents of the county of Wood, and for the 2d term one shall be a resident of Wood and the other of Pleasants county, and so in rotation. The delegate to be chosen by the 2d delegate district shall, for the first term be a resident of Gilmer, and for the second of Calhoun county. The delegate to be chosen by the 3d delegate district, shall, for the first two terms, be a resident of Nicholas, and for the third term of Clay county. The delegate to be chosen by the 4th delegate district shall, for the first two terms, be a resident of Pocahontas, and for the third term of Webster county. The delegate to be chosen by the 5th delegate district shall, for the first three terms be a resident of Randolph, and for the fourth term of Tucker county. And the delegate to be chosen by the 6th delegate district, shall, for the first and second terms, be a resident of Raleigh, for the third term of McDowell, and for the fourth and fifth terms of Wyoming county - and so, in each case, in rotation.

"12. Until a new apportionment be declared, the apportionment of delegates to the counties not included in delegate districts, shall be as follows:

To Barbour, Boone, Braxton, Brooke, Cabell, Doddridge, Fayette, Hancock, Jackson, Lewis, Logan, Mason, Mercer, Putnam, Ritchie, Roane, Taylor, Tyier, Upshur, Wayne, Wetzel and Wirt counties, one delegate each.

To Harrison, Kanawha, Marion, Marshall, Monongalia, and Preston Counties, two, delegates each.

To Ohio county, three delegates.

To Greenbrier and Monroe counties together, three delegates, of whom, for the first term, two shall be residents of Greenbrier, and one of Monroe county; and for the second term, two shall be residents of Monroe and one of Greenbrier county; and so in rotation.

"13. If the counties of Pendleton, Hardy, Hampshire, and Morgan become part of this State, they shall, until the next apportionment, constitute the tenth senatorial district, and choose two senators. And if the counties of Frederick, Berkeley and Jefferson become part of the State, they shall, until the next apportionment, constitute the eleventh senatorial district, and choose two senators. And the number of the senate shall be, in the first case, twenty, and in the last, twenty-two, instead of eighteen.

"14. If the seven last named counties become part of this State, the apportionment of delegates to the same, shall, until the next apportionment, be as follows: To Pendleton and Hardy, one each; to Hampshire, Frederick and Jefferson, two each; and the counties of Morgan and Berkeley shall form the seventh delegate district, and choose two delegates; of whom, for the first term, one shall be a resident of Berkeley and the other of Morgan county; and for the second term, both shall be residents of Berkeley county, and so on in rotation.

"But if the counties of Pendleton, Hardy, Hampshire and Morgan become part of this State, and Frederick, Berkeley and Jefferson do not, then Pendleton, Hardy, and Morgan counties shall each choose one delegate, and Hampshire two, until the next apportionment.

"The number of the house of delegates shall, instead of forty-seven, be in the first case, fifty-seven, and in the last case, fifty-two.

"15. The arrangement of the senatorial and delegate districts, and apportionment of delegates, shall hereafter be declared by law, as soon as possible after each succeeding census taken by authority of the United States. When so declared, they shall apply to the first general election for members of the legislature to be thereafter held, and shall continue in force, unchanged, until such districts be altered, and delegates be apportioned under the succeeding census.

"16. The regular elections for members of the legislature shall be held on the fourth Thursday of May.

"By order of the committee,

DANIEL LAMB, Chairman."

HOUSE of 47 - Ratio, 1 Member to 6,477 Whites.


MR. LAMB. It is proper that I should make some explanation - a brief one, of course, after the indications we have had in regard to the pleasure of the Convention, of the changes we have proposed in the system which is indicated in our former report. I would remark, then, in the first place, that we retain the senatorial districts according to our second report and we report an additional provision, by which any one of these districts may be divided hereafter by the legislature into two sections of equal population, each section electing a single senator, instead of the whole district electing two jointly.

We have reported the number 47 instead of 46 for the house of delegates, an increase of one on our former report; and we give that additional delegate to the counties of Greenbrier and Monroe jointly. We have done so for these reasons: in the first place, the joint population of Greenbrier and Monroe entitles them fully to the representation which we have allotted them in our third report, leaving them a fraction of 594 over. In the next place, because we have taken in these counties without consulting the wishes of that people; have extended our boundary around them without knowing whether they desire it or not; and they are therefore entitled at our hands certainly to the very utmost extent to liberality in the allotment of representation. Lastly because they have nobody in this Convention to represent their interests.

We have changed the delegate districts formerly reported by us in two particulars. We attached Clay and Nicholas together, instead of Clay and Braxton. The connection we are informed is a more natural one. The result of attaching Clay and Nicholas instead of Braxton is that the population of the district comes nearer the ratio than it was. We have attached Webster and Pocahontas together for the same reason. The result of this change in the senatorial districts is that Braxton gets a delegate by herself instead of Pocahontas and Braxton, and Braxton has a population exceeding Pocahontas by over 1200. She is better entitled therefore to a delegate to herself than Pocahontas. We have reported a provision, understanding that it would be more satisfactory to the members of the small counties by which the delegate to be allotted to the district to which they are attached shall be a resident of the small county for a number of terms proportionate to the ratio the population of that county bears to the population of the district. The objection to these delegate districts heretofore has been that the large county by means of its larger vote could always control the election of the member for the district and the small county would never have, except by permission of the larger a delegate a resident of their county. We have understood this provision would render the system much more satisfactory to the members of the small counties.

In addition to this, we have reported in the third report an apportionment of delegates and arrangement of senatorial districts to Hardy, Pendleton, etc., should they become part of the new State. These are, I believe, the only changes we have found necessary from the former report.

The Secretary read the statement of the committee that the changes they now recommended are in sections 2, 3, 4, 5, 6, 7, and 8 of their second report. He reported section 2 as now proposed as follows:

"2. The senate shall be composed of eighteen, and the house of delegates of forty-seven members, subject to be increased according to the provisions hereinafter contained."

MR. VAN WINKLE. I move to strike out "47" and insert "54", with a view of offering to substitute what is here with my scheme for an apportionment of a house of 54, and such modifications (as at the bottom) as to give to every county having over the ratio whatever that should be, one delegate, and one for every fraction over five-eighths; and to give to every county having less than three-eighths also one delegate, and divide the remaining delegates among the remaining counties not having a fraction of three-eighths, in the same manner as here indicated. I have not prepared that in writing; the members have seen the printed scheme. Instead of giving a delegate for every fraction over one-half of those who have already a delegate I only give it when they have a fraction over five-eights, and instead of giving to a county a further delegate where it is less than one-half the ratio; I give them one where they have a fraction equal to three-eights.

I am not going into the argument which I made on a former occasion, certainly when I know this is a compromise. I think the arguments that I used then and on the discussion that preceded it by myself and others, is fresh in the minds of members, and I will not take up further time, simply asking them to give it a fair consideration not only as making what will probably be held by our constituents as a fair and proper adjustment of the subject at the present time but which will give a rule which no county can dispute is entirely fair and equitable for all future apportionments, and to consider at the same time that if such a rule can be made that we do cut off a great deal of trouble and difficulty hereafter. We are unable to see its practical exemplification here, to see how it works out, but I think there can be no doubt it will produce beneficial results. For that purpose it is necessary the number in the section should be raised to 54, and I submit, sir, that 54 would not make a very large house of delegates, or that 66, if that will better express it, will still not be a very large house. Sixty-six is the largest number that will ever constitute the house of delegates. The difference between 47 and 54 for the 44 counties is small if the results proposed to be attained by the change are desirable, as I think they are, and ought not to stand in the way. I think it will be very equitable and in future apportionments will be the same.

MR. LAMB. I did not propose to have introduced in the opening remarks I made the objections which exist in the committee to the plan of the gentleman from Wood, not a compromise. The committee, of course, deliberately considered that; they considered the main subject with reference to that; but they came to the conclusion that they could not recommend it to this Convention. I will state as briefly as I can some of the reasons which influenced them to that conclusion. If we adopt the number 54 for the house of delegates, it involves an increase of seven in the delegates allotted to the 44 counties; will involve an increase of nine if the seven counties over the mountains become part of it. This is objectionable to many members of the Convention. Having that number, 54, and distributing it as far as practicable according to white population, which is the principle we have established and the principle by which we profess to be governed, it would allow to Barbour county two delegates, to Jackson two delegates and to Mason two delegates if distributed on the principle of population. Now the gentleman's compromise simply proposes this: he takes one member from Barbour, one from Mason, one from Jackson and transfers them over to other counties.

MR. VAN WINKLE. You give Jackson but one.

MR. LAMB. I know, we give Jackson but one in a house of 47. I am stating what is the effect if you adopt a house of 54 which the gentleman proposes; what is the manner in which his "compromise," as it is called, works out. And that is the whole result of it; to take one member from each of those counties which were not represented in our committee and transfer those three members to other counties. As a matter of compromise, the gentleman's scheme does not affect Kanawha county; it does not affect Doddridge, which were represented on that committee, or any other of the counties that were there represented. But it does affect these three counties by transferring what would be their rights to other counties. Now, do you call it a compromise to take something from those to give to others? We did not feel at liberty to dispose of the proper representation of these three counties by way of a compromise, retaining ourselves our full representation.

There is another objection - it may be an accidental one - to the scheme of compromise proposed by the gentleman from Wood. I have no doubt it is accidental; and it is this: taking up the senatorial districts, which the Convention will recollect the scheme reported by the committee was very nearly equal in population, the gentleman's plan will give a district composed of Marshall, Wetzel and Marion, 5 delegates; to the district composed of Monongalia, Preston and Taylor, 5 delegates and fraction; to the district composed of Mason, Putnam, Kanawha, Clay and Nicholas, 5 delegates; and 5 delegates and a fraction to a district composed of Jackson, Wirt, Roane, Calhoun and Gilmer, 7 delegates; the population being equal in one case to the other.

There is still another objection to that compromise. According to the gentleman's own figures as printed here the unrepresented fractions amount to over 32,000 in his scheme. According to the plan which is reported here by the committee the unrepresented fractions amount to but 17,400. These two sums express the precise proportion in which one is more equal and more clear than the other. You have in one report - and it is a thing that is inevitable that you must have unrepresented fractions in any scheme - but you have in one seventeen thousand and in the other they amount to thirty-two thousand. These were at least the main reasons why the committee considered the plan which they reported as the fairer one, as in fact more of a compromise than the plan which had been suggested by the gentleman from Wood.

MR. VAN WINKLE. I would like to clear my skirts. The gentleman has announced, as I was not before aware, that this matter would give to my own senatorial district seven delegates and to others but five. Well, now, what was it the Convention wanted to do? It was to do something that would be more favorable to the small counties now, that was the very object of the compromise, to put them as far as possible in a better position than the first report put it. Now, if gentlemen will notice, there are 6 counties in my district; in the 8th district there are seven; in the districts with which he has compared them there are but three counties each. My object was to combine the representation according strictly to the principle of white population with the other idea of a representation by counties. That is to say, that these were the two extremes that were before the Convention, and the compromise must be somewheres between the two. Now if I was willing to yield - if the Convention is willing to yield - something to the small counties, then placing four of those small counties in that district under the ratio - and several of them appear to be considerably under - of course the rule works out just that way. I proposed here, and if it was put now, I would assent just to take the number of delegates, divide by the number of senatorial districts, assign that number to each senatorial district and divide it between those counties. That would be the fairest but it is not practicable. The numbers in the districts being so unequal they could not be apportioned to the several districts. The same thing applies to those three counties that are mentioned. If we have a rule every county must submit to its operation; and if that rule is fair and just it must work out a fair result. I think the feature in my scheme, as it is called, its principal recommendation, is its getting rid of so many of those delegate districts; for I do know that the people of our county would desire not to be connected with another county in voting. We have adopted, it is true, in reference to these delegate districts something like the principle I suggested in reference to the four small counties that could not have a separate delegate under my system. That is an improvement I admit. But I say again that this last report is no compromise at all. It does not meet the question that they intended to be compromised. And therefore I am still inclined to offer this proposition of mine, the modification I have suggested of three-eighths and five-eighths instead of arbitrary numbers, 3500 and 2500. In reference to the fractions I worked out on the ratio of six thousand in the first scheme, to which 3500 and 2500 have reference and there the fractions amount to but 23,186, or only five or six thousand over the fractions produced by this report and perhaps only proportioned to tile additional number of delegates.

MR. IRVINE. Mr. Speaker, the gentlemen here have been defining what constitutes the rule, and they made a distinction between the rule and the principle. Now, the rule and the principle are often synonymous terms. Now, what we call a principle is a rule founded in reason. Sometimes we speak of the reason upon which a rule is founded as distinct from the rule. When we speak of the reason of the rule, we mean the reasons upon which the rule is founded. It is often the case - even oftener the case - that reason and principle mean precisely the same thing. The rule is founded upon reason. Now when we speak of rule and principle as synonymous terms we mean some rule founded in reason. Now what principle have we here to guide us in this case? A rule that is simply arbitrary is no principle. Or a rule that is not founded in reason is based upon no principle. I do not see any rule here to guide us that is founded in reason, that involves any principle. Even if we, no matter in what sense we use the word principle we mean it is synonymous with the word rule. Then we speak of some rule as founded in reason, or if we speak of reasons on which the rule is founded, there is no reason for this arbitrary rule allowing a member for every 3500. This arbitrary rule does great injustice, and the rule itself is not adhered to, because it is proposed to give - it is an arbitrary rule having no foundation in reason. It is not proposed to adhere to it strictly but to give to Calhoun a member when Calhoun has not 3500 though she approximates very near to that number. This scheme has the effect to distribute the members unequally, I think, throughout this State. I would greatly prefer to fix the number at 47. Though it is an arbitrary arrangement, it approximates I think to what is just and right. The plan proposed by the gentleman from Wood gives to Ohio four members, when many counties that have more than one-third of the inhabitants of that county - considerably more than one-third - are only entitled under this arrangement to one member. Why should you give Ohio four members when other counties having more than one-third of the inhabitants have only one member? There is no justice in this.

Mr. President, I know that if you adopt a rule founded in reason and adhere to that reason that that carries you only as far as the reason carries you. But if you adopt a rule that is founded in reason and adhere to the rule it will never work injustice. There is no rule, unfortunately, in this case here that is founded in reason that can be called a principle, nor any that is founded in reason that I can see, because it works injustice. I do not say that 47 would present upon its face any obvious injustice; but the 54 scheme of the gentleman from Wood presents it upon its face, an obvious injustice, as I say, in giving to Ohio four members when other counties having more than one-third the number have only one member. If we resort to an arbitrary arrangement, I am opposed to resorting to any arrangement that will show injustice on its face.

The hour having arrived, the Convention took a recess.


The Convention re-assembled.

Mr. Simmons offered the following:

"Resolved, that no member failing to confine himself strictly to the subject in debate, the President shall immediately call him to order, and that the Convention shall not permit him to proceed in his own way."

The resolution was adopted.

The Convention resumed consideration of the third report of the Committee on the Legislative Department.

MR. VAN WINKLE. Whether I am to confine myself to the subject or not is between me and my constituents. I offered this morning to strike out 47 and insert 54 and stated at that time that I intended to follow it with an amendment to make the other part correspond. I have now reduced that to writing, which I beg leave to read. It strikes out all that relates to delegate districts in the third paragraph of the 9th section, and strikes out the whole of the 4th paragraph and inserts in its place the following:

"One delegate shall then be assigned to each county having a white population less than the ratio but exceeding three-eights thereof and an additional delegate to each county otherwise unrepresented the white population exceeds five-eights of the ratio. The residue of the whole number of delegates shall then be assigned to the remaining counties in such manner that each shall elect a delegate in alternate years."

MR. STUART of Doddridge. Is that in accordance with the plan drawn out there?

MR. VAN WINKLE. Yes, sir; it produces the same results precisely. The figures taken there are taken on a white ratio, and I find it produces precisely the same result.

MR. STUART of Doddridge. Let us try to stick to the question, otherwise I hope the Chair will carry out the rule adopted. The last report of the committee, Mr. President, that is now sought to be amended, I would say that if the Convention are disposed now to break up that arrangement and go into this question again, with loose range, that we are not going to get through this report for some time to come. I apprehend this report of the committee brought in here, the reason it was brought in the way it was was because gentlemen wanted to stick so closely to the principle and the rule, as the gentleman from Lewis remarked. Now, sir, if you know the principle and you must stick to that principle, and not deviate from it, permit me to say that you cannot take any plan which will come near to carrying out the principle than the plan in the report of the committee. No way possible. If we do increase the number of delegates it must be for some object. I can only see one good purpose, that of giving each county at least one delegate. If the principle is to be departed from to carry out that object, then, sir, I am opposed to it. Take the report of the committee that is now before us and you will find that the principle is carried out leaving only 17,891 as the unrepresented fraction. Now, we never can come that near on the plan the gentleman from Wood advocated so strongly. I am glad to say that the gentleman from Ohio and his student in figures are good arithmeticians and their figures are good. I am surprised the gentleman from the county of Wood would venture to come in contact when there is so many figures arrayed against him. Now, sir, if you intend to carry out the principle, let us compare the two propositions; we will see which comes nearest. Under the amendment proposed by the gentleman we have an unrepresented fraction of 32,000 - double that of the committee. Then, sir, if that is a fact, if the principle must be carried out, we have come nearer it by one-half than the gentleman from Wood proposes to do. Now, that is my view of it. But the principle is not exactly right unless it is to carry out some particular result; and if the principle is to be carried out in order to affect certain localities, then I am opposed to it. Now, if these numbers must be increased because they carried it out on the plan adopted by the committee, I insist the only motive that should induce that increase would be to give the smaller counties at least one delegate. Otherwise, it is only increasing the delegation of the larger counties which have already a sufficient representation, and there is no good use in doing that. The only object in departing from the report of the committee, the only good idea that can be carried out, would be to give to every county at least one delegate. I opposed the principle of this report before earnestly because I thought it did injustice; and I opposed 59, and after much difficulty the matter was recommitted. I felt it my duty to go back to that committee and do the best I could to agree; and while I did not exactly approve of this report as it is, we have agreed to it there as the best we could do. We have gained one delegate for Monroe and Greenbrier. As it stands, I shall not oppose it. I expect to vote for it as it stands, but I do so at the same time with the declaration that if it shall be the pleasure of the house, then I shall go back again to the number 59.

MR. LAMB. I ask a division of the question, first on striking out 47. If we strike out that number, we will be all at sea again.

The question was taken on Mr. Van Winkle's motion to strike out "forty-seven" and it was rejected.

MR. LAMB. If there is no other amendment proposed, I move the adoption of the section.

MR. HERVEY. I offer as a substitute for the word "eighteen" in the first line, as the number of the senate, the number "twenty-two." I desire to call the attention of the members of the Convention to the substitute I offered on the eleventh of January. I am opposed to double districts if it is possible to arrange it any other way. The question of impossibility is purely a matter of opinion. Why 18 should be adopted simply because it is the number 18 has never been made apparent. If no other number can be found to operate equally properly so as to give a full, free and fair representation, I cannot see why it would not be adopted. I am opposed to the double districts for the reason that if we had nine districts, why we say nine senators. These two senators represent each a district by the report of the committee; each represents a district; which districts reappear on the report of the committee. I cannot see why the number two should be selected to represent those districts any more than any other number. I am opposed to it on another principle. Equality of representation is claimed to be the basis. Now, I maintain that according to the report of this committee it is very probable that in a great many sections of the new State certain parts of these large senatorial districts must inevitably fail of having proper representation. The larger the district the greater the danger of a concentration of influence, a controlling influence in a particular district. Now, sir, if it is possible, or at all practicable to divide these districts, it seems to me that it ought to be done; and if it cannot be done by taking the precise number 18, why not take some other number. When this question was up before it was argued by some members on this floor that there should be some proportion, say two to one or three to one. But they did not know what that proportion should be. That has never yet been tested by this Convention. I presume, sir, that regarding that matter there is no fixed inflexible rule; but the rights of the case, or the proprieties of the case should control in this question as well as in others. There was a report, minority report, it is true, before with a view of carrying out the principle of single districts; but in consequence of that report having been based on the number 18 it failed to approach anything like equality of representation in the different districts. By changing the number to 22 instead, a diversity of population to the number of (some say) 7,000, as was the case, it has been greatly reduced. The inequalities are greatly reduced. Yet by running out the table to all the counties, taking the number 22, we find these districts are not largely disproportioned in the number of population but sufficiently so for all practical purposes of equality of representation. I know, sir, it is the desire of a large number of the members of this Convention to carry out this principle if it can be done; and I can see no impossibility in connection with it if we come to the conclusion that the number may be changed from the number 18 and increased, say, four. And another fact will be remarked, that while the number is increased four that it will take one county across the Allegheny range, with a population of nearly six thousand (5873). I have done so, sir, with a full conviction of the fact, and the additional assurance of members on this floor who hail from that quarter, and the necessities of those people, which was urged with such potent effect on this floor by members who could not take any question to the people of those counties with the privilege of saying whether they would become a part of this new State. I have therefore felt, especially from those representations, that I would be perfectly safe in taking in the county of Pendleton, on the other side of the Allegheny range, and I have done so. I have done so for the further reason that in the event the county of Pendleton was left on the other side of the Allegheny range, the population, there being some sixty-four thousand, that district would be too large for four senators. The gentleman undertook, in the first place, to run out the calculation at the rate of one senator for every 15,000. The population of those transmontane counties is sixty-four thousand and a fraction; consequently by bringing Pendleton over and attaching her to Randolph and Pocahontas, I have left just population enough on the other side of the Allegheny range to make four senatorial districts. You notice in running over this substitute that a very large number of these districts range about 14,349. There are two districts of 14,460, precisely the same number. There is an error in the addition of one of these districts - large districts - 1 do not recollect which one now it is.

I hope, sir, it will be the pleasure of the Convention, if it is at all practicable, to adopt a portion of this report - I mean that portion of the report coming down to the 4th section. I will state that in consultation with one of the gentlemen delegates from Ohio, he deems this last section here a matter of no importance whatever; he does not desire the revision of the 4th section in connection with this report; and I have changed the 22nd district somewhat in consequence of that fact. The 22nd district will read : "The city of Wheeling and Ritchietown," making the 22nd. I did this, sir, for the reason that the delegate from Ohio county says Wheeling does not contain the population which is set down in this report. He states the population in Wheeling does not reach 18,000, but is about 15,000; consequently I make that change in the 22nd district, "city of Wheeling and Ritchietown."

MR. LAMB. I have already, I believe, announced to the Convention more than once that I would prefer single districts if they were practicable. I tried my hand at them and I found it impossible to make any arrangement to present anything like equality and fairness. The gentleman from Kanawha tried his hand at it, and I do not think he succeeded any better than I did. The gentleman from Brooke has tried his hand at it, and I think if you will carefully examine his proposition, you will find that it is just as unsuccessful as the others. In the first place, in order to make out his twenty-two districts at all he has to import one of these counties which are not yet within the limits of the State. The county of Pendleton is included in his first district. You have not yet declared that that shall be part of the State. I therefore regard this proposition as a declaration, so far as the gentleman from Brooke is concerned, that it is impossible to make out anything like satisfactory districts without bringing in some of those outside counties. I hope members of the Convention have also compared the gentleman's scheme with the arrangement for which it is proposed as an alternative. You will find that the counties of this district stretch across the State just touching at a single corner. I could, indeed, have laid out a scheme of separate districts; and if I had supposed it was admissable at all to take a county here and annex it to another away off there for the purpose of getting these districts. The ingenuity of the gentleman from Wood has not been sufficient to devise a scheme for separate districts that does not (in one instance certainly) adopt that plan of working. The plan, however, proposed by the committee will enable the legislature at any time to divide any of these double districts if the people of the district desire, and to divide it by county lines or otherwise into two sections of equal population; for it will be found that in regard to the double districts which are here proposed a division of them will be impossible if you are confined to county lines; that if the division is to be made so as to secure equality of representation in the two sections of the district into which it is divided, it will be necessary for the legislature to have the power so far to disregard the county lines. We have provision, however, in your Constitution, should it be the pleasure of the Convention to adopt it, substantially to accomplish the object aimed at by the gentleman from Brooke, or by myself, so far as I would prefer single districts, and do perfect justice to all parties.

The proposition of the committee is substantially this: they establish double districts at the outset, but they also report a provision by which the people of any one of these districts can secure its division if they desire to do so, and its division into two equal sections. This is the object of the gentleman that we could accomplish, and that is what is proposed to be accomplished.

In regard to the equality of the districts which have been proposed by the committee, I desire to say a word. Three of the districts which the committee propose will be found to be somewhat deficient in the number of white inhabitants as compared with the ratio; but the whole deficiencies throughout this report will amount to but 3700 taking the whole apportionment together. On the other hand, the excesses in all the districts where there is an excess will amount to 3700.

Now, in regard to the equality of the two propositions, if you will take up the gentleman's proposition for a senate of 22, work out the ratio and compare his defects with that ratio, you will find an excess in a single district equal to all the excesses that are embodied in our plan. You will find in almost every instance much greater variations from the true amount of population than are contained in this plan reported by the committee, except with the plan they have also reported for the election of delegates a fair division of representation is made throughout the State in both houses. Take here the first, second and third districts, which may be called the upper or northern section of the new State; the 4th, 5th and 6th, which may be called the middle section, and the remainder or southern section of the State; you will find when you apply the delegate apportionment to those sections, that the 1st section has 15, the 2nd 16 and the third section 16, as near as it was possible to divide the number 47. The 1st section, the northern section, is entitled to six senators, and it has a small deficiency of population as compared with the ratio; but what it gains in this way is balanced by its having but 15 delegates while the others have 16. Take it all through, and it works out, I say, in conformity with the principles we have established as nearly as possible, representation according to numbers of white population.

MR. STUART of Doddridge. For fear you will take the statement of the gentleman from Brooke I would ask members to note that if they will try it they will see if they adopt 22 they cannot arrange them; that they are bound to take as his first district a white population that is several thousand short, because he cannot include Pendleton county.

Mr. Carskadon called for the yeas and nays, and the vote being taken Mr. Hervey's motion was rejected by a vote of 8 to 38, as follows:

YEAS - Messrs. John Hall (President), Dering, Hall of Marion, Hubbs, Hervey, Mahon, Taylor, Walker - 8.

NAYS - Messrs. Brown of Preston, Brown of Kanawha, Brooks, Brumfield, Battelle, Chapman, Caldwell, Carskadon, Cook, Dille, Dolly, Hansley, Haymond, Hagar, Hoback, Irvine, Lamb, Lauck, Montague, McCutchen, O'Brien, Parsons, Powell, Parker, Pomeroy, Robinson, Sinsel, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Sheets, Soper, Smith, Trainer, Van Winkle, Warder, Wilson - 38.

MR. HERVEY. I move to add at the end of the third line: "but no two senators shall reside in the same county." On that I demand the yeas and nays.

MR. VAN WINKLE. I think that is unnecessary. Every member in the Convention will assent to that proposition.

MR. HALL of Marion. The same object might be better accomplished by inserting in the 20th line of the 4th section after the word "senators" the words "from different counties of the district."

MR. HERVEY. According to the provision of the Constitution already adopted the elections will not take place at the same time, consequently there being one senator elected at a time that language in that place cannot apply. I prefer the original.

MR. STUART of Doddridge. There will be no difficulty about this matter after the first election, and it seems to me it will result in very little difficulty at the first election. I suppose all the senators must be elected at the same time when our State is first organized. Well, it may be so arranged after that, but at the first I do not see how it can be because there might be counties in which there would be several candidates in the same county. There might be other counties in the district in which there would be candidates also. Well it might happen that two would get a majority who were residents of the same county. I do not see how you can possibly arrange it on the first election. You must say - well, that a county shall not have but one candidate and it would be a question who shall be that candidate, because if you say a county is entitled to have as many as they please it might be two in the same county would be elected.

MR. LAMB. There may perhaps be another difficulty at the first election. Some of these districts, I imagine, in which it may be very difficult to hold an election at more than one county at the first election. It will be somewhat difficult in the 9th district to hold a senatorial election at all. I would be inclined to favor the amendment of the gentleman from Brooke; but as I think it is a new proposition altogether it had better lie on the table and let us think of it.

MR. VAN WINKLE. The same objection would arise on any amendment proposed here. I want to show, if I can, to my friend from Doddridge that the difficulty he finds can hardly arise. He does not advert to the fact that each voter votes for two senators, and in nine cases out of ten they will vote for the same ones. And, again, if it should so turn out that two reside in one county, have received more votes than any others residing in any of the other counties, why, of course, the second one being ineligible, he is passed by and the principle that is sought by the gentleman from Brooke is preserved. I think there can be no fairer proposition than this; whether there is any way to carry it out, let it be established. It is on the very principle introduced in the delegate districts. Gentlemen have complained on this account, that one county would control it. Take a district where there is one large overwhelming county and the rest are small. It may be the large county will be able to carry the one senator at every election, but it is not so certain. But the other candidates may get together, as it were, among the remaining counties. Even in such an extreme case as that I don't think there will be any practical difficulty. There is no probability it could arise one in a hundred times.

MR. HALL of Marion. If I understand the gentleman from Wood that if the thing should occur the candidate having the highest vote in the district would be elected If another in the same county should be next. You would pass him by and take the next highest in any other county.

Several Members. There is no difficulty - no question - about that.

MR. SINSEL. The way to avoid that would be to say "after the first election."

MR. VAN WINKLE. No more difficulty at the first election than at any other, I think. These things are always divided by party lines in some way; always will be to the end of the world. Well, now, those who make the ticket will take very good care to prevent any such thing as that occurring; and it can be prevented if it is looked to beforehand. It can be prevented, there is no question.

MR. LAMB. It strikes me gentlemen are mistaken as to the manner in which the thing could be worked out. If there should be two candidates from one county both having a larger number of votes than a candidate from another county, according to the established principle in regard to elections, I take it the man from the second could not be considered elected whether one of the others was eligible or not. I believe that has been an established principle in regard to elections ever since the case of Wilkes. The great objection there was that Wilkes, whom the House of Commons had determined to be ineligible, had amajority of votes; and not satisfied with ordering a new election, the House of Commons declared, finally, that the man who had the smaller number of votes was elected. That decision gave rise to the greatest excitement that perhaps ever existed in regard to any election in England; and I believe that ever since it has been regarded as a settled principle, and the House of Commons were finally obliged to rescind their resolution. I don't know but they expunged it. It has ever since been regarded as a settled principle that if one man has a larger number of votes than another, the second is not elected even though the first may be determined ineligible. If that is correct the thing could not be worked out in the manner here suggested.

MR. HERVEY. If it should occur once in a hundred times it would not occur 99 times in 100, that is clear. Now, sir, in regard to the manner of holding elections in certain localities, how does it occur that nearly every county in the proposed new State is represented on this floor? Elections were held in much more difficult circumstances than will ever occur again, perhaps, in the history of this new State. In some three or four instances perhaps, they have come in by petition, but in the great majority of the counties of this new State, certainly not one-half the counties embraced in these tables have been prevented from holding elections even at the time of the act of August 20th. Those disabilities are being continually removed. These disabilities did not exist before and they certainly will not to the same extent hereafter. I take it the objection has no foundation.

MR. SINSEL. We have just refused to make single districts. Now, here is another proposition pushed on us that is absolutely worse in operation and principle than the one we have just voted down. For instance, the first district - Hancock, Brooke and Ohio; you compel the people, whether they want to or not, to elect one senator from Hancock with a population of 4442, while Ohio, with a population of 22,196, shall have another one. Now, is not that really worse than the other proposition? I think the inequality is greater. We have been contending here strongly for the best material, that you should pay high prices if necessary for certain fitness in order to get the best. Now, if the people want the best, let than. have it. Why compel them to take a man in the county who may not be competent to fill an office under this Constitution? This would compel them to take it, when probably 99 out of every 100 in the district would select a man somewhere else.

MR. STEVENSON of Wood. I would like to hear it read, Mr. President.

The Secretary read Mr. Hervey's motion that "no two senators shall reside in the same county."

MR. STEVENSON of Wood. I was just going to say it would probably be better to say: "no two shall be elected from the same county."

MR. HERVEY. I have no objection to accepting that verbal correction.

MR. STUART of Doddridge. I want to show this Convention that it is more than likely it will happen in a great many instances upon our first election, and I want the gentleman from Wood to attend. Take the district here composed of Hancock, Brooke and Ohio. He says it is not likely there will be two elected from the county of Ohio under this arrangement if the amendment of the gentleman from Brooke is voted. Supposing, as is very apt to be the case and will be, that there will be various gentlemen in Ohio who will offer themselves as candidates. It may be there are two gentlemen in Ohio of nearly equal popularity, of equal qualifications and merits, and the vote will be pretty well divided in that county between those two men. Well, now Brooke and Hancock will have to choose between those men, and it is very likely the same way there the vote will be divided there between those two men, as they stand on equal merits and equal claims before them. Well, here will be two men who will get a vote there and three-fourths of Ohio; and when they come to cast up the vote the man who receives the majority in Ohio and the man who receives a small majority in one of the other counties will be declared senators; and you will disfranchise the man the people want and elect a man they did not want at all. Now, will not that result?

MR. HERVEY. Would an alteration to this effect satisfy the gentleman, "after the first election"?

MR. STUART of Doddridge. I have no objection to that; but I say my opinion is you had better let men and counties stand on their merits, and if a man merits the office and the people choose to elect him, and if he is qualified, don't palm him off on any people simply because he happens to live in a certain locality. I live in a small county, and I have fought for the small counties; yet it does seem to me this is stooping from principle - the principle we have all been fighting for so much and that the gentleman from Wood is advocating so strongly.

MR. VAN WINKLE. I thought the gentleman from Doddridge was very greatly in favor of county representation.

MR. STUART of Doddridge. So I am; but I don't want to see the minority there have the power of electing a senator of West Virginia who shall perhaps receive three or four votes over a man receiving perhaps fifteen hundred who would be disfranchised.

MR. HALL of Marion. This is a very plain proposition, a thing we have all labored to accomplish. The gentleman from Doddridge fought so valiantly and was willing to lay aside every other consideration and principle in order to have a representative from each county. This only seeks to dispose the representation so that as far as possible each part of the district shall be represented with reference to any local interests that may arise—and those things will arise to a certain extent, and minorities are entitled to be represented; and no difficulty can grow out of this matter; and I trust the motion will not be modified at all at the first election. The people generally know something about their candidates and have something to do with arranging who shall be their candidates; and those who are candidates irrespective of pre-arrangement on the part of the people are not generally in the way very much of those who are likely to get a large vote. In the case suggested as to Ohio and Brooke, with the constitutional provision before the people that two senators shall not be elected for the same county, they will arrange accordingly. The suggestion of the gentleman from Taylor that because one is to be elected in Ohio and one in Brooke, that therefore you are placing Brooke on an equality with Ohio, not at all. They will all turn in with Brooke and the people in Ohio will be voting for men there; the candidates will be selected with reference to this very thing. There is great propriety in the provision that is sought to be incorporated here with a view to have representation from the different localities in order to represent local interests and prevent the stronger counties overpowering the weaker and monopolizing, say the county of Ohio to the total exclusion of Brooke and Hancock, and any like cases. That is the very object of that; the object we all labored for; the very principle we have sought to incorporate; and no difficulty can arise out of it. I am really surprised that any one should oppose. I am surprised the opposition should come from a gentleman who lives in a small district and from the gentleman from Doddridge who has been the champion of the small counties and maintained that they needed protection and protected localities in this way. If it did occur the first time it would not occur in any single instance, in very few instances would it occur. I would adhere to the principle though it should become necessary at the first election to order a new election to supply the other senator. I trust the proposition will not be modified and that it will be the pleasure of the Convention to adopt it as proposed.

MR. SINSEL. I did not come here as the representative of the people of Taylor county, to act upon any small and selfish principles such as have been carried out by designing demagogic politicians. I came here to act, as far as I could on principles of statesmanship, on a broader and more national platform. I am aware there is a little county of Taylor, my constituent and home locality.

THE PRESIDENT. The gentleman will please avoid anything personal.

MR. HALL of Marion. Nothing of that kind could be taken as personal,

MR. SINSEL. Surely not intended. It may be, unfortunately, in Taylor that we may not have a very able man there to represent us; it might be in Monongalia or Preston they might have a very able man, a distinguished gentleman, there, fully competent to represent us; and at the election we would vote for such men. I would rather than for a person in my own county unworthy the position.

The question was taken on Mr. Hervey's amendment, and it was adopted.

MR. HALL of Marion. I wish now to say as a personal matter, that it is very apparent because I called the gentleman from Taylor to order this morning, it is evident he has taken offense.

MR. SINSEL. I took no offense in the world at what the gentleman did this morning. I intended none here this evening. Gentlemen thought this thing was a kind of a little compromise, a thing I don't approve of. I did go a little way in regard to the house of delegates in order to satisfy others as a compromise. I did hope when we came to the senate, we would act on broader and more statesman-like principles.

MR. LAMB. I want to see if I understand the amendment now. It was suggested by the gentleman from Doddridge that this rule of apportioning senators could not apply to the first election, and I understood the gentleman from Brooke as acceding to that.

The section as amended was then adopted.

MR. LAMB. There will be no difficulty under this section as it intends nothing but what has been heretofore adopted. But I call the attention of the Convention to an amendment which I think absolutely necessary. It arises out of the amendment which was adopted to the original section on the motion of the gentleman from Wood; "except that the terms of the senators first elected shall commence 20 days after their election." It will be necessary, in some part of the Constitution, to define when the terms of these senators shall expire. I would move to pass the section as it stands reserving the right of reconsideration to amend it so as to designate when the terms of the first senators shall expire.

THE PRESIDENT. That can be done on the next reading.

The 3rd, 4th, 5th, and 6th sections were adopted as recommended by the committee, without alteration and without discussion.

When the 7th was read, Mr. Lamb said: That section, Mr. President, has been so altered as to make the delegate district system more agreeable to the small counties. Our information was that it would relieve that matter of a good deal of difficulty. It is fair, I suppose, in its provisions. It secures to the small counties the certainty that in proportion to their population they shall have representatives elected from the districts who are residents of their own county.

The 7th, 8th, and 9th sections were adopted as reported.

Upon the reading of Section 10 Mr. Lamb: This is somewhat different from the former report and Clay county is annexed to Nicholas. The district contained a population of 6231. In the former report the county was annexed to Braxton with a district of 6646. That district therefore now contains a little over four hundred less population than before. We were informed that the connection between Clay and Nicholas was rather a more natural one than that between Clay and Braxton. Webster county is annexed to Pocahontas. In this 10th section, it was formerly attached to Nicholas. As it now stands, that district contains a white population of 5238. Before, it contained 6022. By making these changes, Braxton elects a delegate separately instead of Pocahontas, and Braxton county has a population of 1200 over that of Pocahontas. The arrangement therefore, gives the separate delegate to that county which is best entitled to it. Other districts remain as they were in the former report.

The 10th section was adopted, and the Secretary reported the 11th.

MR. LAMB. The assignment, Mr. President, of the terms between the different counties here is attempted to be made as nearly as we could in proportion to their population. Take the second delegate district, for instance: That consists of two counties, Gilmer and Calhoun. Gilmer has 3685, Calhoun 2492. It was impossible to do anything else than provide for the election of these delegates alternately; but in order that some advantage might be given to the greater population of Gilmer, we gave her the first delegate. The delegate to be elected from the second district shall for the first term be a resident of Gilmer and for the second of Calhoun. The third delegate district consists of Nicholas and Clay, and it will be found apportioned on the same principle. Clay has 1761, Nicholas 4470. We have given the delegate for the first two terms to Nicholas county, for the third term to Clay. We give it for the first two terms to Nicholas because the population of Nicholas is more than twice that of Clay so that she may have some advantage for the excess of population. So on throughout.

MR. HAGAR. It seems to me that Wyoming should be entitled to a fair representation. I know a little about that country. It is true she has not elected a candidate for years to serve in the legislature. Wyoming and Logan and Boone together elected a secesh and he went off. I don't now recollect that Wyoming ever had a member in the legislature. She gets one, but it is every fourth year.

MR. WALKER. I move to amend by saying "first and second term to Raleigh, third to McDowell and fourth and fifth to Wyoming." First term to Raleigh, second to Wyoming and then return to Raleigh and then to Wyoming and give McDowell the fifth member. Raleigh is the largest county and Wyoming is the next. McDowell is a very small county. I don't know why McDowell should have the preference to Wyoming. I think it would be nothing amiss to give Raleigh the first, then Wyoming and then return to Raleigh, Wyoming the fourth and McDowell the fifth. It will not alter anything particular more than it will give Wyoming and Raleigh rotation, that one county shall not be represented two years.

MR. LAMB. If the Convention will look closely at the provision which is here reported they will find this result: In the first place, we give to Wyoming the representative as often as we do Raleigh, yet Wyoming has a population of 2797 and Raleigh 3291. Wyoming here has a great advantage. To compensate that advantage in some other way we have assigned the delegates to the larger county, Raleigh, in precedence to Wyoming. We have endeavored to give Raleigh this little advantage in compensation of its greater population. Now, between McDowell and Wyoming gentlemen will find that McDowell has a white population of 1535, Wyoming a white population of 2797; yet Wyoming is to have the delegate twice as often as McDowell. Twice the population of McDowell would be 3070, considerably over the population of Wyoming. In giving to McDowell therefore a delegate only half as often as we give it to Wyoming we have endeavored to compensate for this difference, this inequality to which we subject McDowell county by providing that she shall elect a delegate before it becomes the term of Wyoming. We have carried this principle throughout of endeavoring to give these small compensations in the arrangements of these delegate districts to those counties which sustain a loss in regard to population. It is a fair principle and in the manner in which the committee arranged these counties I want the Convention to understand that it has not been done at hazard but as we conceived in carrying out a fair principle. We could not give representation exactly according to numbers at times which would be proportioned to population but when any county was subjected to a loss in that respect we endeavored to give them at least the little advantage of having the first delegates.

MR. SMITH. We endeavored to make an equitable adjustment among the counties. That was the object - to make it as near just as possible. Raleigh has more than double the population of McDowell. In regard to all these counties we have considered the advantages and disadvantages of each and adjusted these as equitably as we could.

MR. WALKER. Give the first term to Raleigh, second to Wyoming, third term a resident of Raleigh, fourth term a resident of Wyoming, fifth term a resident of McDowell, and so on.

MR. VAN WINKLE. I believe all three of these counties are represented, but I am perfectly willing if the delegates from all three can agree on any proposition in reference to this I should very cheerfully vote for it. The gentlemen from the other counties I take it would do the same.

MR. SMITH. Make Raleigh first, Wyoming second, McDowell third and Wyoming fourth.

MR. WALKER. I am perfectly willing to accept of the suggestion of the gentleman from Wood. I have no doubt the members present can agree on this satisfactorily.

THE PRESIDENT. The chair would then suggest the idea of passing the section by and on the second reading -

MR. WALKER. I am willing to pass by.

MR. LAMB. I should object to passing by longer than till tomorrow morning.

MR. WALKER. That will be long enough.

MR. LAMB. The object in passing by is to see whether the gentlemen representing those counties can agree among themselves in reference to this matter. If they can agree and present us a different plan tomorrow morning, that of course will be satisfactory and we will all cheerfully accede to it.

MR. WALKER. Then I move to pass by until tomorrow morning.

MR. BROWN of Kanawha. I think this thing can be arranged now as well as any other time. The committee plan to give the delegate first to Raleigh, second to Wyoming, third to McDowell, and then two years first to Raleigh and then Wyoming, and then McDowell comes in; then go back to Raleigh, McDowell, Wyoming. Every five years it works all the way through and can be arranged to suit the gentlemen without violating principle.

MR. WALKER. I would rather pass by.

Mr. Walker's motion was agreed to and the section passed by.

The 12th section was reported.

MR. LAMB. Mr. President, we have here the extra delegate to Greenbrier and Monroe counties. As to the manner in which the delegates are arranged for these counties I can only say that gentlemen who are much better acquainted than I am in that region supposed this would be the most satisfactory.

MR. VAN WINKLE. I should really like to ask why these are not put in with the rest of the delegate districts?

MR. LAMB. There is this peculiarity. The gentleman will have observed this section in regard to the Constitution of delegate districts does not apply except where a county is less than the ratio of representation.

MR. VAN WINKLE. Satisfactory, sir.

The 12th section was adopted as reported, and the Secretary reported the 13th.

MR. LAMB. The Convention will recollect the provision adopted in regard to the boundary question, by which Pendleton, Hardy, Hampshire and Morgan have come in, rendering it necessary to make these provisions. They are a little inadequate, but I think they are expressed so that the effect of them cannot be mistaken.

The 13th, 14th and 15th sections were successively adopted as reported.

The 16th section was reported.

MR. HERVEY. I move to strike out "the fourth Thursday of May" and insert "the fourth Thursday of October." It has been discussed heretofore and I presume it is not necessary to go into detail on this question; but I hope there will be another vote and the day will be changed.

MR. VAN WINKLE. The Committee on General Provisions have ordered me to report & similar provision providing for the time of holding all these elections. I would simply suggest to leave this here and let the whole question be fixed, the day of election and commencement of terms of the different offices when it comes up on that general provision. Members may be thinking of it meanwhile and be prepared for it. That probably will be the fairest way, to let it come up as in that report.

MR. HERVEY. I accept the suggestion.

MR. VAN WINKLE. We may as well pass by.

Section 16 was passed by, accordingly.

MR. VAN WINKLE. I want to offer an additional section, sir, to which I suppose, in the form in which it is stated, there could be no objection. I should like to have the views of the Convention on it at least. I will read it for information:

"The legislature may provide for dividing any county having more than one delegate into as many districts as delegates, each of which shall elect one delegate."

So that if the people of any county under legislative sanction choose to divide it into two districts and each elect one, they can do so. It simply gives the power to the legislature to provide for it.

MR. BROWN of Kanawha. I confess I think that is carrying the doctrine a little too far. It will produce rivalries among them. The county is a unit, and I cannot approve the policy of splitting up counties in order to produce divisions. The very principle on which we advocated unit representation for each county forbids this. It has been the idea that the county is a unit; that it has an organization in which all the county have a peculiar united interest; and to split the counties in two, and if your county has three or four delegates, into as many parts, is I think decidedly objectionable.

MR. VAN WINKLE. Why does the gentleman speak of three or four parts when he knows there is but one county that has three and no other more than two? That is not a fair way of arguing.

MR. BROWN of Kanawha. Well, I was not thinking precisely of numbers. The division into towns is as far as I can consent to go. Even on that point I have not my mind fully made up.

MR. STUART of Doddridge. If you adopt this amendment proposed by the gentleman from Wood, you get up little county feuds, and have your legislature eternally legislating to district some county in order to suit some particular person that desires it. I think no inducement ought to be held out to counties to get up anything of this kind. I know exactly how it will operate. Some gentleman will desire to have his county divided up into delegate districts in order to accommodate him or a friend who is ambitious to get into the legislature, and his friends will petition the legislature every year to divide the county in some other form to suit some other individual in some other particular locality in the county. That will be the result of it.

MR. LAMB. I would suggest the following as expressing the gentleman's idea in possibly better form than first offered by him.

"The legislature may provide for dividing any county having more than one delegate into as many districts as delegates, each of which shall elect one delegate; and such districts shall be equal, as nearly as possible, in white population."

MR. VAN WINKLE. I accept the suggestion, and will ask that the vote be taken on this as an additional section.

The vote was taken and the additional section rejected.

MR. LAMB. I move we adjourn.

MR. STEVENSON of Wood. Wouldn't it be better to understand before we adjourn what report we will act on tomorrow morning? Then the members can look over it.

MR. LAMB. I withdraw the motion.

MR. STUART of Doddridge. There is still unfinished business - the amendment offered by the gentleman from Marshall.

MR. LAMB. The balance of this report will occupy only a moment, or two in the morning; if the gentlemen from McDowell, Wyoming and Raleigh agree, a motion will be as a matter of course to adopt what they agree upon. We had better have some understanding about what should be taken up in the morning.

MR. POWELL. I would suggest that we take up the report of the Committee on Taxation and Finance. The chairman of that committee expressed a desire yesterday that it be taken up and acted on while he could be here; that he would have to be absent in the near future.

MR. LAMB. I know that the chairman of that committee is exceedingly anxious that that report should be taken up and acted on; but I know, also, that it would be impossible for him to be here tomorrow.

MR. STEVENSON of Wood. I notice the chairman of the Executive Committee is present. I will move to take up the report of that committee in the morning.

MR. CALDWELL. I am willing. I want to remind the members of the Convention that I had the honor some days ago to offer a proposition that I desire to be made part of this report. My friend from Wood offered a substitute, and I believe on examination I have no objection to the substitute for what I propose offering; but I merely give notice that I would like to have the thing disposed of in the morning.

A Member. Take it up now.

MR. LAMB. The gentleman refers to the additional section offered to the report of the legislative department.

MR. BATTELLE. Why not take up the amendment of the gentleman from Marshall this evening?

It was agreed that Mr. Caldwell's amendment to the legislative report be taken up; but as that gentleman had mislaid the paper and could not find it, the Convention adjourned.

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Chapter Eleven: First Constitutional Convention of West Virginia

A State of Convenience

West Virginia Archives and History