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Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

February 13, 1863

The Convention was opened with prayer by Rev. Moses Tichenell, member from Marion.

Following the reading and approval of the journal,

Mr. Van Winkle presented two petitions several yards long from the soldiers of the loyal Virginia regiments in the neighborhood of Winchester praying the Convention to provide for holding an election in their camps on the question of adopting the Constitution. One of these petitions was signed by the officers of the 9th Virginia regiment; the other by 577 members of the 10th Virginia.

The President presented a petition to the same effect signed by 126 citizens of Tyler county; Mr. Stuart of Doddridge, one signed by 656 members of the 14th Virginia.

The petition from the officers of the 9th regiment prayed that the Convention would "adopt and ratify the amendment suggested by what is called the Willey Bill' for the admission of West Virginia, and make provision for the Virginia troops to vote on the ratifications of that amended Constitution."

The petition presented by Mr. Stuart said:

"At the call of the President, thousands of the citizens of West Virginia left their homes to do battle for the integrity of the Union and the sanctity of the Constitution. It has been suggested that this class of our citizens will be deprived of the privilege of voting on the fundamental law of the government under which they will live. Would it be asking too much of your honorable body to grant to the men now in the service of their country the same rights and privileges and immunities that are accorded to other citizens? Does any soldier forfeit any right simply because he happens to be beyond the territorial limits of the State?"

MR. BROWN of Kanawha. I would move reference of these petitions to the Committee on Schedule. That committee, I believe, has the question of the submission of the Constitution to the voters under consideration; and I take this occasion to express the opinion that it seems to me if any persons can be entitled upon principle to the right of determining or voting upon the fundamental law of the State it is those men especially who are by their arms and lives defending and sustaining it. I imagine there will be no difficulty on the subject. It is only a question of preparation in submitting it.

MR. CALDWELL. I hold in my hand a certificate of the election of Samuel Griffith from Mason county. I do not concede there is any necessity of referring it to the Committee on Credentials. I ask it be read.

MR. SINSEL. The committee has already considered that case, and are ready to report it.

MR. CALDWELL. I withdraw it.

MR. HALL of Marion. With reference to the motion of the gentleman from Kanawha, as chairman of the Committee on Schedule, without having had an opportunity of conferring with the other members of the committee, I would make a suggestion which will perhaps expedite the business. One great object will be to have the business of the Convention matured at as early a time as possible in order to make our session as brief as the circumstances and business will enable us to do. The Convention at its former session having passed through and had reports from the various committees, assigned the whole work then to a Committee on Revision, and I propose that for the consideration of the gentleman as a substitute for his motion in order that the matter be referred to the Committee on Revision in lieu of the Committee on Schedule, as it will supercede the necessity of a double reference and let it go to what was regarded before as the "Lamb Committee." The questions that may arise on these petitions I suppose will detain no time in the committee. I do not know how other men may regard it. There can be but one opinion as to the rights of these men; that they have not ceased to be citizens, and legal restrictions that are sometimes construed to exclude soldiers have reference only to the members of the regular army and have no application at all to the persons in the service as volunteers. I think that is the construction of the present law, and thus arises the idea that seems to have prevailed in some quarters that without some action here they might be excluded. But the Convention will take pleasure, I am satisfied, in putting any question of doubt at rest. But I suggest this reference. Perhaps I should have conferred with the Committee on Schedule before making the motion; but I think the reasons will be apparent and I apprehend it will meet with the concurrence of the whole committee.

MR. BROWN of Kanawha. Without having the statute before me, I believe from memory and I have ever regarded that the volunteer in the service is not precluded from voting or holding office by the provision of our Constitution; that it only refers to the regular standing army of the Union and not to volunteer citizens who are mere militia and are so entitled. You will see on their knapsacks "Volunteer Militia of Virginia", of Ohio, etc. But even if it were otherwise, I should be prepared to go a step further. This is a Constitutional Convention, which is preparing to submit the fundamental law, the basis and groundwork of a new state, and in submitting that we are about to determine to whom it is to be submitted; and we do in this very instance submit it to the individuals who are voters under the laws of Virginia; who are to be voters under this Constitution; and we provide in this schedule to whom this Constitution shall be submitted and whether it shall be in the territory or out of it makes no difference. It is not a submission that is to affect men hereafter in the; ordinary elections of the State, and by any provision which we may submit to men on the farthest shores of the continent or wherever they may be on the day of the election, it cannot be pleaded as any precedent to enable other voters hereafter to vote when out of the territory. It is a provision to meet the exigencies of the case. It is fully competent for us to provide for it and justice demands that we should do so.

Mr. Hall's amendment was accepted by Mr. Brown and agreed to by the Convention.

MR. SINSEL. The Committee on Credentials is prepared now to make a final report. They report as follows:

"The Committee on Credentials, through its chairman, beg leave to report that it has had under consideration the credentials of David W. Gibson and Samuel Young, both claiming seats in this Convention from the county of Pocahontas, and that the members of the committee present were equally divided in opinion as to the claims of the aforesaid gentlemen to seats in this Convention, and ask that the said credentials be submitted to the Convention for its consideration and action in the premises.

"Your committee further reports that Samuel T. Griffith is duly elected a member of this Convention from the county of Mason, in the room of John Hall, resigned, and that said Griffith is entitled to a seat therein.

"HARMON SINSEL, Chairman."

MR. SINSEL. In reference to the contested seats from Pocahontas, the facts are something like these: On the 29th day of October last, some refugees from that county drew up a petition to this body to admit Samuel Young as a delegate to represent that county in this Convention. It is true the committee did not call the Convention together at that time but they were aware the Convention would be called together and felt confident Congress would admit us and it would be necessary to revise the Constitution, and they embraced that opportunity that they might be ready. There were 25 petitioners; and this Mr. Gibson, the getter-up of the petition, signed it with the others and asked this Convention to receive this gentleman; but from that time until the election, Mr. Gibson could not hear from Mr. Young and they were fearful that they might still be unrepresented; and on the day of the election, the 5th of February, in the county of Upshur there were many refugees there at that time and they opened a poll for election and elected Mr. Gibson to this Convention, not knowing where this other gentleman was at the time, and in that way they both appear as applicants for the seat in this body. Mr. Young and a part of the committee thought they had compiled with the forms of an election all except holding it in the county of Pocahontas. One half the committee thought his claims were more in accordance with the requirements; the other thought as this gentleman was here not by any fault of his own but through the agency and influence in part of this Mr. Gibson he was entitled to the equitable seat; and so we differ, and now we submit it to you for your decision.

On suggestion of Mr. Stuart of Doddridge, the report was received and Messrs. Griffith and Boggs were allowed to come forward and take the prescribed oath.

MR. VAN WINKLE. I wish to offer a couple of resolutions.

MR. SINSEL. I would ask to dispose of this contested case, first.

MR. VAN WINKLE. O, certainly, sir.

MR. SINSEL. I move to take up this contested case and let the Convention dispose of it.

The motion was agreed to and the Convention proceeded to consider the Pocahontas case.

MR. SMITH. There are two gentlemen here, and I have heard the facts, and I think it is the most difficult case I have ever had to decide on; so much so that I am at a loss to know how to vote. But to get rid of it I am making another proposition which I think is just and fair. Those gentlemen are both from the county of Pocahontas. There is Webster and Greenbrier, there is Monroe and other counties in that section wholly unrepresented. This Convention it must be recollected is omnipotent so far as the admission of members is concerned; have perfect power to dispose of it at their pleasure; they are governed by no law but the Constitution of the United States. That is the only thing that inhibits them from doing whatever may seem pleasant to them. And I therefore recommend that these gentlemen each be admitted as representing that section of the country. There is a large portion there wholly unrepresented, and the power that is in us to admit each of them and let them stand as the representatives of the whole country where there is no representation at all. I merely state this fact that they should take charge because they live in that country, and in representing Pocahontas they would completely represent the other portions. I think it will relieve the Convention of the difficulty of voting between these gentlemen. Both came here to serve the public interests and from motives of patriotism; and I therefore earnestly recommend to the Convention to receive both.

MR. LAMB. I should be very glad to see both these gentlemen members of this Convention; but are members to be appointed by this Convention or by the people? Can we undertake to say that either of these gentlemen shall represent a district of country which has not seen proper to send its own representatives here? Will it be putting this Convention in a proper position before the great public if they undertake to decide that a gentleman not appointed by the people for that purpose shall be understood as representing a portion of our people? I think, sir, we cannot escape, difficult as may be the question, we cannot escape deciding between these two gentlemen which of the two is entitled to the seat they claim. We cannot undertake to make them the representatives of another section or another people. "Omnipotent" as this Convention may be, we have no authority to represent the sovereignty of the people in that respect.

MR. POMEROY. I understand there is a proposition made by the gentleman from Logan to admit both these members. That proposition is open, I suppose, to amendment. I move that Mr. Gibson be admitted as the representative from Pocahontas.

MR. STUART of Doddridge. I really think the proposition made by the gentleman from Logan ought to be accepted by this body. If they do not represent those counties, let them be members here representing the refugees. I was one of that committee, let me say for the information of this body, who favored this expedient. Both gentlemen are very intelligent, respectable men; both been engaged in the service of our government fighting the rebels; they are here and their equity is almost identically the same. They have no legal evidence here entitling them to a seat; but I would like very much if the gentleman from Hancock would withdraw the amendment until we test the other question; because the question which your amendment brings up I desire to be heard before this body as to the rights of these two gentlemen. But I don't want to go into that matter until we test the other question. If it is the will of this body to receive both - which I hope it will be - it will be necessary to investigate and discuss which has the preference one over the other.

MR. POMEROY. I would do anything to accommodate my friend from Doddridge, but my understanding is that Pocahontas is entitled to one member and is not entitled to two; and it is a question for this Convention to decide whether she is in accordance with the provisions of the proclamation issued by the commissioners for the holding of elections and whether she elected one man or not; and if she is, that man is entitled to a seat on this floor. We cannot take it for granted that Greenbrier wishes to be represented here. We have no call to infer that Monroe wishes to be represented in this body. But the great objection I have to this is just this: I don't want to give those rebels any ground on which to find fault with this Convention. I want everything they state against this Convention without any foundation in it, and therefore I want this Convention to proceed in that way that will give them no opportunity to quibble and find fault without departing from the truth - and that will not hurt anybody. The amount of the milegae of these men is a very little thing; but the world is made up of little things, and we are to be careful of the funds entrusted to us belonging to the people. I think I am prepared to say that Dr. Gibson is the man entitled to this seat without saying a word disrespectful of this other gentleman. It may be both are the best men in the country. One of them is entitled to a seat and two are not; and therefore if the gentleman from Doddridge wants this naked question to discuss we will have to show that two men ought not to be received here, and then we will have to discuss which of them is. I am not desirous to be tenacious about this question. I don't believe we ought to admit two from Pocahontas any more than we ought to admit two from any other county that is entitled to but one. If entitled to two, why not entitled to ten? Why, gentlemen, better let all these refugees over in Upshur come down here in a body and represent their section, to carry out the idea of the gentleman from Logan. His proposition would establish a bad precedent. I have the kindest feeling towards these men. I sympathise with them as refugees. I hope they will not be refugees always.

MR. VAN WINKLE. I would suggest that the request of the gentleman from Doddridge is that the gentleman from Hancock simply withdraw his motion for the present. He will see that in voting for his amendment gentlemen must exclude Dr. Gibson, for they must vote that in and thereby throw out the gentleman from Doddridge from any opportunity of having a vote on his amendment.

MR. POMEROY. I am very willing to withdraw.

MR. VAN WINKLE. And if the amendment of the gentleman from Hancock should fail -

MR. POMEROY. I withdraw it.

MR. WILLEY. We should be as regular in our proceedings here as the nature of the case will admit. It cannot be expected in these times of revolution and disorganization that we can be altogether regular. It strikes me there is a great deal of force in the remarks of the gentleman from Hancock; but I very much like the suggestion of my friend from Doddridge. Now, sir, these gentlemen are both of them refugees, I understand. Why cannot we have a representative here of refugees in general? If I were in place of one of these gentlemen I should very much hesitate to assume upon myself, not living in Greenbrier or any of the other counties, to take it upon myself without any knowledge of the wishes of people there to represent them on this floor. But it occurs to me the refugees have a fellow-feeling. It is said a fellow-feeling makes us wondrous kind, and if there is any portion of our community that deserves our consideration I think it is the refugees driven from those counties. I believe, sir, in the Congress of the United States are delegates from the territories. They can speak, they can be heard, can bring forward measures, but they cannot vote. Well, here are hundreds of refugees all from that county. I do not know how I shall vote finally on the proposition but it occurs to me to suggest that to my friend from Logan.

MR. VAN WINKLE. My understanding of the proposition of the gentleman from Logan, is this, not that you should appoint a delegate from Greenbrier but that you should admit the two delegates from Pocahontas in consequence of other neighboring counties being unrepresented.

MR. WILLEY. That is what I understand; that he should be admitted as the representative of Greenbrier.

MR. SMITH. I meant for both to be admitted as representatives from Pocahontas, and the reason is that a good many counties in the vicinity are wholly unrepresented and there would be propriety in it.

MR. WILLEY. Rather being understood as admitting him from all that country that is not represented here.

MR. SMITH. That is a reason why they should both be admitted.

MR. WILLEY. Well, then, sir, there is not so much difference between us as I had supposed.

MR. STEVENSON of Wood. I feel myself disposed to vote for the proposition of the gentleman from Logan, if it can be put in a shape that might satisfy my conscience. I am afraid that if the gentleman is admitted as suggested by the gentleman from Monongalia to represent any of the unrepresented territory in that country it might lead to a difficulty if any other portion should turn up in the meantime and should come here properly authenticated to represent any particular portion of that territory. I see a difficulty there that might arise.

MR. WILLEY. My main objection was to fixing as the representative of Greenbrier; and if that were the case - if a representative from Greenbrier duly elected should present himself, we should be in rather an awkward predicament.

MR. STEVENSON of Wood. I am supposing a representative should come here with proper documents from any one of those unrepresented counties and we should have admitted one of these gentlemen as representing all that territory, a difficulty would grow out of that, of course. If the matter could be put in a shape, as suggested, to make one of these gentlemen represent the refugees who have been driven from those counties, I think it would remove that objection at least. I understand that both these gentlemen are very worthy men and have suffered somewhat in the way of persecution and loss of property for the cause of the loyal people in that portion of the state. I believe there is no difference of opinion about that; and both come here honestly with the intention of representing the people in that particular county. There is no charge made, as I understand that either of these gentlemen is actuated by any but pure motives in this matter. Now, we have gentlemen upon this floor who have made very able and efficient and excellent members who it seems to me were admitted upon conditions to say the least as much objectionable as those proposed here. If there is a possibility of admitting both these gentlemen to participate in the proceedings of the Convention without any glaring violation of the propriety in such cases, I confess that I feel disposed to support it and vote for it. I have a little difficulty, however, in my mind as to exactly what I shall do and would like to hear a further interchange of opinion on the matter.

MR. SMITH. It seems I have been misunderstood, that I had used the county of Greenbrier for Pocahontas. It was not my purpose to recommend the admission of either as the representative of any other county than Pocahontas; and my remarks were made for the purpose of showing that we had power to admit two members from Pocahontas; although it would be an unequal representation, we have the power to do it. There is no question about our power. We have no constitutional powers to take such action at all. We have perfect power to give inequality of representation; but as a reason for giving that inequality of representation in the county of Pocahontas I suggested that there is a surrounding country there wholly unrepresented; and those gentlemen whilst taking charge of the interests of Pocahontas might also be watchmen in behalf of the people of the surrounding counties; and I offer that as a reason for giving to these gentlemen a representation for the county of Pocahontas, of two instead of one. We have the perfect power. Our consciences are not involved in it at all, because this Convention is omnipotent on that subject. We did say in a former day that the county of Pocahontas should be entitled to one representative; but may we not pro hac vice, undo that and say that now, although we have provided as a general principle that they shall have one, we may now declare they shall have two. And the reasons for so declaring now I think are potent. These gentlemen have come here honestly and from a spirit of patriotism and for the public good. It is a small amount we will have to pay, and I don't think we ought to quarrel on that subject; and if it is so, we ought to make up a pony-purse. But I don't think that is necessary. And that is not the question at all. These gentlemen have come here and ask to be represented. They ask to be represented on principles which we cannot admit. And by admission, we are taking the sovereign power of the country into our hands; and although they have not been elected according to the law as before provided, yet we assume the prerogative here, and which we have a right to do, to undo the law for the occasion. We abrogate the law in this particular case. So we have done in other cases where members came in by petition. We abrogated the law for that occasion; we abrogate it here. There is no sort of legal difficulty in the way. I, therefore, think it is just towards these gentlemen who have come here from honest purposes and such equal claims that we will cut the Gordian knot by admitting both.

MR. HALL of Marion. I confess, Mr. President, I do not see this as the gentleman from Logan and some other gentlemen indicate. I know that no one on this floor would sympathize more with refugees or extend a larger liberty to those who may have been so situated that they are represented with difficulty here. But I wish to answer the suggestion of the gentleman from Logan that there are persons - and I believe another gentleman also - that there are persons on this floor as representatives that are here by an abrogation of law: I do not so understand it. I do not believe it. Under the circumstances in which we found ourselves placed, we were bound to provide ways and means of getting a representation that under ordinary circumstances were regarded as irregular, they were legitimate and proper. And when all was done, in order to be regular, that could be done under the circumstances, they have done all that should be required. I know of no petition on this floor that comes here except by the best expression of the will of the people it is proposed he shall represent that could be had under the circumstances. Now, I am like the gentleman from Logan, I have a jealousy for the fair fame of this Convention. The monied consideration, as suggested by the gentleman from Logan, is a very small matter; but it is a matter of importance that in what we do here we shall do legally and right; and let us not, in order to avoid the responsibility that it is our duty to meet and discharge of deciding between these two men, let us not in this eleventh hour in our Convention put a cudgel in the hands of our enemies that they can say a convention not gotten up to represent the people, but a few of them, got together and appointed persons without consulting the people; appointed them to represent whom? Counties? Not exactly so; sections or districts or different classes of people, without their knowledge or consent.

MR. SMITH. A man in a glass house cannot throw stones. I believe this very town and country is represented in the Confederate Congress, and they are represented in the Legislature of Virginia.

MR. HALL of Marion. But two wrongs do not make a right; and when we simply answer our accuser by telling him he is "another" it does not exculpate us. We regard all their acts as illegal, and we set ourselves up in distinction and say we are legal. Let us keep our record so that we can stand on it and show the difference between the rebellion and loyalty - between the ignoring of laws and their observance. I shall not be content to place myself on an equality and say to a rebel, we are as good as you are. I am better than any rebel that treads on God's earth, and I am not willing to make myself the peer of any man in any particular who is a rebel.

Now, here is the simple point. It is suggested that they may represent a class of persons - refugees. I would be willing they should all be represented; but there was provision made by which they might have been represented, and that provision is the very same that Pocahontas has availed herself of to be represented here. But this proposition involves this question: You propose to introduce a representative of a people that have not requested or indicated these men as their representatives. I ask by what authority this Convention makes itself the constituency of any people? What right have we to say these men shall represent refugees more than Monongalia has a right to say that because my colleague, Mr. Tichenell and myself happen to be away they shall represent the county of Marion? It is said every tub shall stand on its own bottom, and every county must look out for itself, and every people must. Otherwise this is not a republic and we are getting beyond the bounds of our power, and right when we attempt to appoint for a people who have not appointed for themselves. I want to know which gentleman represents Pocahontas. How will the Clerk and Reporter report them? Will they have to say the gentleman from Pocahontas who represents Pocahontas, or the gentleman from Pocahontas who represents the surrounding country? Without this we cannot tell in reading after the Convention who represents Pocahontas and who represents the rest of mankind. Now, I am opposed to that proposition in toto. On personal grounds, I would very gladly have both gentlemen here. I wish one of them did come properly accredited from some other county; but until he does I cannot know him. I must know one of them. It is my duty and the duty of all members to know which one does represent Pocahontas county, and admit that one to the privileges of this body. I know both come here from worthy impulses, and it matters not which of them is excluded. So far as they are concerned they will respect this body the more for doing its duty and they will be content, either of them - I know it. It is my pleasure to have known one of the gentleman personally for some time. The other I have met since coming here and I have looked in his face and know he is an honest man and will be content with the decision of this Convention, so it does its whole duty.

There is something in the idea of our setting a precedent and making a mark here so that the world could say we were not regularly appointed to represent the people we do profess to represent. There would be that cloud on our title; gotten up without reference to the regular principles of government. No man could meet our record and say we were a properly organized and regular body of representatives of the people. I want that our record shall go out the work of masters' hands and all that we do shall be above suspicion, and beyond question or quibble. Let us meet this matter and decide between these men, taking one and rejecting the other according to our best judgment of which has the best title to the seat. I trust we will not adopt the method proposed here of going to work and appointing delegates.

And, now, here is another point. Suppose we appoint the delegate now to represent the refugees, or suppose you say the rest of the territory there, and we will remain in session a few days - how many men may come here as representatives from that territory? How many representatives is that territory there entitled to? And what portion of it will each one represent? Why you open up a field here and set a precedent which may compel you to stultify yourselves or throw open the gate and tell all the people not here to come in and participate; and the result is your Convention is swallowed up and you can draw no lines to tell what is convention and what is mass-meeting.

MR. SMITH. What part of Marion do you represent?

MR. HALL. We represent it all over, and it takes all our might and main. I represent twelve thousand people. How many does the gentleman from Logan represent? How many will the delegate from Pocahontas represent? The proposition as I understand the gentleman's question is that Pocahontas county should have two delegates because Marion has two. If the circumstances were the same, she would be entitled to it; but the case is very different. I would not be willing to set the precedent that a county should have the same power in this body as a county with four times the number of people in it even if the manner of choosing delegates had been equally fair and regular. I trust we will render unto Caesar the things that are Caesar's; that we will be just to all the other counties; and whilst I apprehend it would not benefit a particle whether they had one or two - for I expect they would vote right on every question - yet, for the sake of avoiding a wrong precedent, so that all we do may be legal and above reproach, I must hold to the position taken against this proposition.

MR. PARKER. I had the honor to be on the committee and heard the statements of the gentlemen. It seems to me the first question is: Has the Convention the right to admit both of these applicants as representing the people of Pocahontas - the loyal people of Pocahontas? That the Convention should undertake to admit delegates to represent other counties where there is no expression of the sentiments of the loyal people of those counties - it seems to me when done here for this purpose, the power is perfectly manifest. The credentials of other gentlemen who hold seats on this floor based on the same principle have been accepted by the Convention. We have the power, as the gentleman from Logan says and have exercised it in the course we have hitherto pursued in admitting members. We have been liberal, but not too liberal. So far as the right is concerned there seems to be no question. Is it expedient? Can the precedent do us any harm now? At this period of the work of the Convention it is not at all probable the precedent set could work any practical injury; and therefore I hope it will be the pleasure of the Convention to admit them both.

MR. DERING. I desire to say a word upon this question and my object in doing so will be to favor the proposition of the gentleman from Logan. Here are two gentlemen coming from Pocahontas with equal or pretty nearly equal claims. This Convention has set the precedent and made it legal to admit members on petition. It seems to me the proposition of the gentleman from Logan is eminently fair. As to making a record on the part of this Convention, for the rebels to attack I do not care, for one, whether they are pleased or displeased. They are going to oppose the new State and everything that looks like loyalty. I am not like the gentleman from Marion for making a record that shall be irreproachable and not subject to objection on the part of the rebels. We will get independent of them. I think, with the gentleman from Logan we are omnipotent in this respect and can abrogate law and make law here. We are representatives of the people in their sovereign capacity and have a right to admit two members from Pocahontas if we like. Look at that whole section of country overrun by rebels. These gentlemen are both refugees themselves from that county. That whole section is without any representation and shall we refuse; shall we stickle, and stop and halt on this subject because it don't come up exactly and precisely to legal requisitions made by this Convention in the election of delegates? My object will be to do justice, to give Pocahontas two representatives. In the language of the gentleman from Logan, let them be here as watchmen for their whole section. I trust it will be the pleasure of this Convention to give both delegates a seat here.

MR. TICHENELL. I am well acquainted in this country that these men come from. The motion is to admit both gentlemen. I would like to do it - like to vote for both of them. I confess to you that I do not feel clear to do it. I feel that to admit both these gentlemen makes a precedent here from which similar difficulties might arise, and I believe it would be used before the people to our disadvantage. I will tell you what I would like in this case. It is only my own opinion. What I would like under the circumstances in which these men came here would be to admit one as a delegate from Pocahontas and pay the other his mileage going and coming and some three or four days attendance. And if it is in order to amend the motion before the house to this shape, I move we admit the man elected and that in connection we allow Mr. Young his mileage here and return and three or four days per diem. I think this will get us clear of all difficulty; and as these men have come here honestly and as true patriots, and I love patriots wherever I find them. I would not trample on their rights and feelings; and as they have come here honestly to represent that people, either of which would be entitled if both had not come, it would be a hardship in my opinion to send either away on his own expense. I therefore hope we shall take one of them and show respect to the other by providing that he shall not have come and gone at his own expense; and if my friend over the way says we are to pay it out of a pony-purse or any other way, I will pay my share. But I want one of them appointed here. It will get out and I know our people well. We are in the midst of enemies watching us by day and night. If you imagine you have nothing to do but to go home and vote the new State in, you are greatly mistaken. They will burst forth like a smothered volcano whenever they have the opportunity. And they will tell our people there is a class of our people they cannot touch with a 40-rod pole. We have a good many softs hanging on the fence, and a breeze might blow them over. Let us act honorably. Let us say to Pocahontas, we will give you a fair representation. Who knows what county would claim it, if we set the example? I hope we will admit one of these gentlemen and honor the other and respect him and cause that he shall not have the difficulty of coming here at his own expense. This we are compelled to do.

My amendment is this: That we admit Mr. Gibson as the member from Pocahontas, and that we will allow the mileage and three days per diem to the other.

MR. LAMB. I should be very glad, indeed, to be able to vote for the admission of both these gentlemen, the proposition being now, not as I supposed it was originally that we should invent a constituency for them, but to admit them both to represent Pocahontas county if it could be done without the violation of fundamental principles; if it could be done without giving our enemies a handle and weapon, placing in their hands a weapon which they will be able to wield with great effect against the institution of the new State and its validity after it is instituted.

Mr. President, there seems to be a misapprehension in regard to the position in which this question rests here. It is necessary to make some explanation in regard to the exact position of the matter.

A convention was assembled on the 11th of June, 1861, authorized by the people of West Virginia to adopt such measures as the welfare and safety of the people might require. That Convention did represent the sovereignty of western Virginia. That Convention passed an ordinance on the 20th of August, 1861, which fixed by a decree in the name of the people of Virginia which this matter, as I say, beyond the power of this Convention to affect. It is the fundamental law under which this Convention is assembled, as the only authority we have for meeting here; and we are asked by this motion to set aside the action of that Convention assembled here and representing the sovereignty of the people of Virginia; for that Convention has said in that ordinance that Pocahontas shall have but one representative. That Convention prescribed in that ordinance how many representatives should be allowed to each county. It gave Ohio county three, to Marion and some others two and it gives to Pocahontas but one.

Now, what is the authority of this Convention? Here is the fundamental law under which we are organized. The authority given by the people of western Virginia, in the name of Virginia, to this Convention is to prepare a constitution under that fundamental law and submit it to the people for their ratification or rejection. We are a Convention of limited powers. It is a misrepresentation of the whole position of the matter to say we are a sovereign Convention. Sir, we heard something of this sovereignty in regard to the convention down at Richmond. And that Convention undertook to appoint members of Congress to represent us and the State of Virginia in the Montgomery Congress. And what was the universal sentiment, not merely among the loyal people of the land but over the world, wherever republican principles are respected in regard to acts of that character? What will be the sentiment and feeling of the people of West Virginia? With what force can they wield against you a weapon of this character if you undertake, in violation of the fundamental law of this organization to give representatives to the people?

I do hope, Mr. President, that this motion will not carry. I consider that it would be, not a fatal blow, but that it would be a blow struck at the new State which would tell for many a year to come. That this Convention, assembled under this fundamental law of August 20, 1861, do not represent even the people that they profess to represent - we have heard such reports in the Congress of the United States. We have heard this argument even in the Congress of the United States against the admission of the new State under the Constitution framed by this Convention and sent to that Congress; and you are by your acts fortifying and giving ground for reports of this character.

Sir, I should be glad, if we had the power, without the violation of right and without the violation of fundamental principles to admit these two gentlemen as representatives of Pocahontas county; but I feel we have got to decide this question between them. We have got, under the same authority which authorizes us to appear on this floor, we are required to say which one of these gentlemen shall be received as the representative of Pocahontas. Let the other - and that will be perfectly regular and fair and perfectly right - let the other coming here under the circumstances which justified him to come here to put in his claim - let him be entitled - as he is entitled - and it is perfectly regular to give it to him - to his mileage and a reasonable per diem. It strikes me that under the motion which has been made to this effect we can do justice all around; we can protect our character as a convention really representing the people.

And let me say, there has been nothing of a similar character done from the commencement of this Convention; there has been no precedent set; there has been no case in which this Convention has presumed to set aside this article of the ordinance of August 20, 1861, and admit for any county more delegates than it was entitled to. We have governed ourselves heretofore strictly in that respect at least under this ordinance prescribing the manner in which this Convention should be organized.

The gentleman from Logan is mistaken in the position of this matter. He seems to think - and he repeated the remark over and over again - that this Convention had undertaken to prescribe how many representatives there should be here from different counties. If that had been the position of the matter it is true we might have set aside our own regulations and admitted a different number; but it is prescribed to us under the very act that assembles us here, under the very act that gives every authority which we can presume to exercise, that Pocahontas shall have but one delegate: "The counties of Harrison, Kanawha, Marion, Marshall, Monongalia, Preston and Wood shall each elect two, and the other counties named in the first section of this ordinance shall each elect one delegate to the said Convention."

MR. VAN WINKLE. Will the gentleman please inform me whether Pendleton is named there?

MR. SMITH. Pendleton and Pocahontas is not in the ordinance.

MR. LAMB. Pendleton is, Pocahontas is.

MR. VAN WINKLE. Is McDowell? McDowell is.

MR. LAMB. All mentioned and prescribed one delegate.

MR. VAN WINKLE. Some counties not prescribed there.

MR. LAMB. No, sir; not a county. We have acted in strict conformity in that respect to this ordinance. We are bound to so act.

MR. DERING. Have all the delegates? Some are here on petition.

MR. LAMB. Yes, sir; I am perfectly aware of that; but we have never presumed to disregard the section of the ordinance which I have read here; and the members whom we have admitted on petition are virtually here in conformity with this ordinance; for an election, I take it, does not necessarily convey the idea that a poll is to be opened in cases in which it is impossible. It implies that they are to be the choice. The word "election" means nothing but choice - that they are to be the choice of the people whom they represent; and we have admitted no person on this floor who had not virtually been the choice, so voted and presented to us with proper evidence in that respect. But let us adopt this number, and what is going to be the effect? Will it not be said that we have presumed to make a constitution for the people of West Virginia with a convention assembled not by the people whom they assume to represent but by delegates selected by the Convention itself; selected by the Convention in violation of the very fundamental law under which the Convention exists?

MR. ROSS. Mr. President, I desire to say a word or two on the question that is presented before us at the present time. It must be obvious to every member of this Convention that however "omnipotent" the power of this Convention may be, it at least is bound to respect its own acts; and however far as a "sovereign" Convention of the people we may be permitted to wander away from the proper bounds of regularity, it certainly should be the object of this Convention to keep as near to those bounds as possible. Mr. President, the schedule to the Constitution authorized the commissioners to reconvene the Convention if they found it necessary and in that event they were required to take the necessary measures to secure representation from the counties proposed to be included in the state which were not represented in the first session and to fill vacancies which might occur. In exact accordance with that provision of the schedule we have the proclamation issued by these commissioners recalling the Convention, and in that proclamation I find it provided that the county of Pocahontas shall elect one delegate. Now the question comes up before the Convention: Who is the delegate from Pocahontas? Is it the gentleman elected in accordance with the proclamation of the commissioners, in virtue of which we are all assembled today, or is it another individual appointed, as I understand, long before and presented here by petition? Certainly, Mr. President, there can be no doubt in the mind of any member of this Convention as to which of these persons is entitled to a seat on this floor on the score of regularity. The commissioners appointed under the schedule appended to this Constitution, under the power conferred upon them, have issued their proclamation calling this Convention together at the present time, prescribing the number of delegates to be elected from certain counties heretofore unrepresented in this Convention and providing likewise for elections to fill the vacancies that had occurred in the interim. In that it is prescribed that the county of Pocahontas shall have one delegate, and now the question is presented to us, who is that delegate to represent the county of Pocahontas on this floor? In my humble, Mr. President, there can be but one opinion on the subject, and that is that the gentleman who was elected in accordance with the proclamation of the new state commissioners is the individual and no other is regularly a member of this Convention.

Mr. President, both these gentlemen are equally unknown to me. It has been represented that they come here with the purest motives, patriotic gentlemen that have been engaged in sustaining the cause of the country against the present unfortunate rebellion. I have the greatest respect for these gentlemen and for their feelings respectively on this subject; but, Mr. President, we must be bound by our own acts, and it does seem to me that the preceding acts of this Convention utterly preclude any such idea as has been advanced by the gentleman from Logan county and others. It is most assuredly the case that upon every ground of regularity which we can assume here the gentleman who is elected in accordance with the proclamation of the new state commissioners is the delegate to represent Pocahontas county in this Convention.

MR. BROWN of Kanawha. I beg leave to make one remark on this subject. It is one I feel some interest in, and I have been very much edified by the remarks of gentlemen who have preceded me. It is one that addresses itself to the warmest sympathies and to the earnest judgment of the whole Convention. I might remark here that this county seems to be one of the most popular counties in the world, for everybody is in love with it. All seem desirous to give it its representative. All seem anxious to extend to it everything that can be extended to it, and the only question is, who is the better man of the county? One difficulty is suggested by gentlemen, that if they only had the power they have the will. I think I can show to the satisfaction of the Convention that if we have had the power we have got it still, and further that we have had the power to do the like before and have done it, and therefore can do it again. The gentleman from Ohio told us we were assembled under the ordinance of the Convention which represented, as I understand him to remark, the sovereignty of West Virginia and that by that ordinance we were to be governed. Now I understand we assembled under a convention ordinance passed by a convention that represented not the sovereignity of West Virginia, for West Virginia never had any sovereignty until the action of the people and this Convention and the act of Congress have given it vitality, if there is any sovereignty.

MR. LAMB. Excuse me. If I said "West Virginia" the gentleman understood me to mean Virginia.

MR. BROWN. I wanted to say I supposed it was a mistake. Then we assembled under a convention of Virginia which represented the sovereignty of Virginia (not West Virginia) and under the ordinance of that convention, which now is pleaded as the limitation on our powers this Convention was assembled. In express terms in the language of the ordinance the gentleman read from - I haven't it now but it is here - calling up the delegates to frame a constitution for 39 specifically named counties within the territory and prescribed limits of which the county of Pocahontas and the county of Greenbrier, or Monroe, or Mercer, or McDowell constituted no part.

MR. LAMB. Excuse me there again. The gentleman has not lately read the 3rd section of that ordinance which provides that "The Convention hereinbefore provided for may change the boundaries described in the first section of this ordinance so as to include within the proposed State the counties of Greenbrier and Pocahontas, or either of them, and also the counties of Hampshire, Hardy, Morgan, Berkeley and Jefferson, or either of them, and such other counties as lie contiguous to said boundaries or to the counties named in this section, if the counties to be added, or either of them, by a majority of the votes given shall declare their wish to form part of the proposed State, and shall elect delegates to the said Convention at elections to be held at the time and in the manner herein provided for."

MR. BROWN of Kanawha. The gentleman did not read it all. There is further limitation in that very provision, that they may do that upon certain contingencies, which contingencies had not taken place; and therefore it is urged that at that time this Convention had no authority inasmuch as the contingencies did not exist upon which that authority was given to them to add other counties; that therefore they had no such power. But this Convention solemnly determined in that very question that they had the authority to take in although the convention by which that authority was delegated to take in any and every county which they might choose. And they did it; took in other counties even without their consent; and then went beyond that and prescribed a rule by which they would take in other counties still if they should consent to it, and have done that too. And then they have given delegates to those counties. I am not able to state whether any delegates are given to these or not that were not embraced in the 39; but this Convention adding in those counties without any compliance with that ordinance on our part; and they came in under the action of this Convention, not under that ordinance, and being in here they have been represented and their action has gone to the people and has been adopted and ratified by them saying they did right in the matter; and who at last is the party interested but the people?

Now, let us test this question a little further. This Convention then has acted and assumed and exercised that power whether conferred by the ordinance or not, both in enlarging the territory and admitting delegates from the counties they have claimed and even adopting upon another basis and principle that which the ordinance prescribed where it prescribed the mode of the election. Now, the same rule can be applied to Pocahontas as to the rest. This Convention surely has not lost all of its powers that it possessed when it first assembled; because if its assumed powers, not delegated, have been ratified by the people and we now assembled here, ratified and endorsed by the will of the people by an overwhelming majority, surely that cannot diminish the powers it has assumed and exercised. We may go on in the exercise of what they have conferred. The power then it seems to me is within the limits of this Convention. It is assembled here now a Constitutional Convention to represent the unfolding sovereignty of a new people; and this very people to whom you are proposing to give the representation in this instance are a part and parcel of this unfolding sovereignty. Shall we injure the county of Pocahontas by conferring upon her two delegates instead of one? Shall we do her any injustice in that particular? These gentlemen both come here endorsed by the people of that county. Surely she and her people there cannot complain if we admit both. The only question is who can complain? Why, if we the representatives of the other counties are content to concede more than she might demand, can anybody complain? If we have exercised this authority in other instances, and have it still here, our constituencies are not complaining, then who can complain? Are we to be frightened, then, from this matter to our feelings as well as judgments, because rebels may complain that we have acted which they say was not in conformity with the rule under which we assembled? It seems to me that ought not to weigh upon us; and whether we look at this thing in one light or the other on the question of power, we have it amply, and in the conferring of this delegation we do not injure that county but insure its benefit. I do not think the rest of the counties ought to complain. I feel no apprehension my constituents will complain that I have given to Pocahontas more than she might demand. Kanawha has two delegates and Preston has two; and why may not this Convention concede to Pocahontas two delegates.

But these gentlemen come here representing another feature in the case we do not; and that is, I have no doubt, the largest constituency represented in this Convention - and that is the refugees driven from home because of their loyalty and because they cling to this idea of saving this state. And I may say to those gentlemen, although they are strangers to me that I feel a natural and common feeling and sentiment with them. When a man has been driven from his home by the hostile forces of the enemy, he can realize something of the common feeling they have, and that I am confident they will represent; though they may come ostensibly from one county they will have a common sentiment with hundreds and thousands from other counties who cannot vote and cannot have a representative here.

There is another idea. We have gone on and made a constitution with no representatives from either of these counties to aid or assist us. When we have adopted the Constitution and submitted it to the people and they have ratified and adopted it, and even their people have a chance to vote upon it, yet we are intending to put upon them a constitution, to bind them for all time to come. Would it be too much to give them a representative in this tail-end of the Convention? If they had none in the beginning, would it be too much to give them two men to be in the closing scene on the amendment toil? I think not. The rest of us will take care that our constituents are not injured by anything they can do.

Taking this question, then, in any and every aspect, that we have the power and that we have exercised the power and it has been ratified and confirmed in our hands by the action of the people, and now we will give to Pocahontas two delegates as we authorized the counties of Mercer, and McDowell to vote for one on perhaps one-third the population that is contained in Pocahontas. That will do no injustice to anybody, not endanger our constituencies' rights; and we need have no fear to go before the people that when we have done justice and right and what our consciences approve and what all these gentlemen say they would like to do, we need have no fear in any discussion when we can lay our hands on our hearts and say we conscientiously believed we were right. Being sure that we are right, let us go ahead and we need not fear the consequences before the people and before the world; and I can confidently assure gentlemen here that I do feel that in any discussion which may devolve on me to maintain what we shall do, I shall never fear the adversary who charges me with having given Pocahontas at the close of this session two delegates on this floor; and I shall have no fear of defending myself by saying I did no harm to Greenbrier and I a,m sure we did none to anybody else.

I just wish to remind the Convention of a rule we have that no one shall speak over ten minutes the first time and five minutes the second. That is a standing rule of this Convention.

MR. HERVEY. I supposed the question would perhaps be raised and I made up my mind as soon as it was to move the rule be set aside. I therefore move that the rule of this Convention which limits speakers to ten minutes and five be repealed.

THE PRESIDENT. It is hardly in order now.

MR. POMEROY. I wish to make a little speech on this but I will forego that if my friends over the way should be willing to take the vote.

MR. HERVEY. There was a motion made that one of these contestants be admitted to his seat.

THE PRESIDENT. I understand the gentleman from Marion proposed this merely as an argument.

MR. SMITH. There is just one word I want to state. As I introduced this resolution and an attack was made on the constitutionality of our proceedings by a gentleman for whose legal opinions much respect is really due - he says we are not at liberty to depart from the ordinance.

MR. SINSEL. I will have to call the gentleman to order.

MR. SMITH. No, sir, my proposition was misunderstood and I merely want to explain it. I don't like to speak when I have nothing to say.

MR. LAMB. The gentleman will have the advantage of me, for I cannot reply to him.

MR. SMITH. It was only in relation to this ordinance. Well, then, I will not say anything about it.

Cries of "Question!"

The question was taken on the motion to admit both claimants and resulted as follows:

YEAS - Messrs. Brown of Kanawha, Boggs, Chapman, Cook, Dering, Dolly, Montague, McCutchen, O'Brien, Parker, Ruffner, Ryan, Stevenson of Wood, Stephenson of Clay, Stuart of Doddridge, Smith, Taylor, Van Winkle and Wilson - 19.

NAYS - Messrs. Soper (President), Brown of Preston, Caldwell, Carskadon, Dille, Griffith, Hall, Harrison, Hubbs, Hervey, Hagar, Hoback, Irvine, Lamb, Lauck, Mahon, Parsons, Powell, Pomeroy, Pinnell, Ross, Sinsel, Simmons, Stewart of Wirt, Sheets, Tichenell, Trainer, Willey, Warder, and Wheat - 30.

So the motion was rejected.

MR. TICHENELL. I now make the motion to admit one of these gentlemen, and I wish to vote for it with the understanding we will allow the other his mileage and three days per diem. I move the admittance of Dr. Gibson.

I will tell you my reason briefly. I learn one of these gentlemen is here. I was going simply to state that one is here by petition; the other by regular election held under the instructions of the schedule commissioners. My own opinion is that Mr. Gibson is entitled to the seat, and my motion is that he be admitted and the other be allowed his mileage and three days per diem.

MR. STUART of Doddridge. I move as an amendment that Mr. Young be admitted as a member of this Convention.

MR. SINSEL. Mr. President, I call for a division of the question.

MR. WILLEY. I wish to inquire of the chairman of the Committee on Elections whether he will state the number of votes Dr. Gibson received; whether they were certified to. It was stated there were some 40 to 50 refugees there but it does not appear whether all voted. The other by petition was 25. The gentleman before us stated there was some 40 or 50 refugees there but he did not know how many of them cast their votes.

MR. HERVEY. Before the Convention can vote understandingly on the question I presume we should have the evidence in the case. A simple motion here cannot reach the merits of the case. Unless the evidence is produced, how can members vote upon it?

MR. SINSEL. I will call upon the Clerk to read the certificate of Dr. Gibson and then he can read the petition there.

The Secretary read the certificate and the petition asking the admission of Col. Samuel Young.

MR. STUART of Doddridge. I design a few reasons for the amendment. I propose, and I intend to keep myself strictly within the rules. I advocate the admission of Mr. Young because he appears here on petition of citizens of Pocahontas. Appended to that petition I find the name of Dr. Gibson who is seeking to supplant him and take his seat. Mr. Young comes here at the request of Doctor Gibson, himself. Neither gentleman has any legal claims here because no authority was given to any person to open a poll in the county of Upshur. In passing upon these papers I am bound to say Mr. Young has the most equity because he comes here at the instance and request of the very gentleman who is now seeking to supplant him. If we pass upon this thing on the legal construction of these papers, neither would be entitled to a seat perhaps, although heretofore it has been the action of this body to receive members upon petition from counties that could not hold an election. Then, sir, both the gentlemen must appear here as simply asking consideration on the equity of their cases. Neither can claim any right under the law. Cannot be so construed. Mr. Young appears here with 27 names. The gentleman who is seeking to supplant him comes at his instance and having come in good faith I say it is right he should have the seat in preference to Mr. Gibson. It strikes me so. There is nothing here indicating the number of men who voted for Mr. Gibson in Upshur county. It is signed by one or two of the commissioners and those part only of the names, not giving the number of persons who voted. It is true it came out before the committee that there was from 16 to 25 that they thought had voted. I understand it does not exceed that. It strikes me Mr. Young is the man entitled to the seat.

MR. PINNELL. It is due I should make a few remarks in opposition to the gentleman who has just taken his seat and in favor of the gentleman who in my opinion is entitled to the seat as the representative of Pocahontas county. The election of Mr. Gibson took place at the county seat of my county. There has been at various times from one hundred to three hundred Union citizens of Pocahontas, refugees, in the county of Upshur. After the commissioners' proclamation calling the Convention to order and setting a day for an election to be held a number of these citizens refugees from Pocahontas, came to the county seat and made inquiries whether an election for a delegate to represent them would be regarded as valid. Col. Taft, our prosecuting attorney advised them such an expression of opinion would be received by this body. On the 5th day of February there was an election took place at our court-house. I saw on that occasion I think possibly some fifty refugees from Pocahontas in town. They were exceedingly anxious that Dr. Gibson should consent to represent them. He declined; he was busily engaged in his profession and declined and suggested Mr. Young. They replied that they knew not of his whereabouts and did not know if an election was held whether he could get a certificate and be present, and they urged Dr. Gibson to consent to represent them. The election was held. I paid very little attention to it. It was the day on which I was elected myself; and consequently when asked by the committee how many votes were polled it was impossible for me to say. It is not customary for the certificates certifying the return of an election to certify the number of Votes cast. I believe my own credentials do not contain that fact.

It will be observed as the case now stands before this body that here is a petition gotten up and signed by Dr. Gibson - I am credibly informed by Mr. Young himself - gotten up in October, before there was any certainty that this body would be convened at all. That petition was placed in the hands of the contestant. Since that time he has been traveling, wandering about; the citizens of his county had no cognizance of his whereabouts; and when the time came to select an individual to represent them, it was natural, it was to be expected, that they would not confide in Mr. Young, not knowing whether the knowledge of their desire would be made known to him or whether he was actually in the state. Under the circumstances, a petition gotten up before the proclamation of the commissioners, is brought in here to act as a bar to the expressed wish of the people directly from the county of Pocahontas fully and fairly expressed, as near as could be under the circumstances. The gentleman thus selected has come here against his own consent at a financial sacrifice. I may be permitted to add one more remark in reference to this gentleman, because it was at the earnest request of us that he finally yielded. He is a man of pride, of intelligence. His brother was shot down in Randolph, and his own hat shot from his head and he traveled bare-headed through that country to within five miles and then sent a messenger to warn us of the approach of the secessionists. He has stood there ready whenever a squad of 20 men could be raised to go back to Pocahontas. He accompanied it. He is ready to do it any time. I am in hopes it will be the pleasure of this Convention to accord to Dr. Gibson a seat in this body.

MR. DERING. I just desire to say one word. As Mr. Young has been in the county of Monongalia a refugee, I desire to say that he consulted me on this subject, showed me his petition and letters from his county requesting him to be the representative, and he asked me if the Convention would receive him. I told him according to precedent I thought it would; that a number of gentlemen representing various counties had been admitted on petitions and I thought his chance was very good and advised him to come on. In reference to the gentleman's loyalty and soundness, I take it upon myself to say from what I know of him there is no more loyal gentleman on this floor than Mr. Young. He was the guide of Gen. Milroy when in Pocahontas; took him through the country and was his guide. He is loyal, sir, and desires anxiously to establish our new State.

MR. PINNELL. I fully accord that to Mr. Young.

MR. PARKER. As a member of the committee, I agree with the gentleman from Doddridge, it is perfectly clear that Mr. Young starts out here with the credentials with the authority of Dr. Gibson. He writes the paper. Well, now, either one of two things is necessary to show by the document to give him the claim to the seat. Either that Mr. Young since then has been derelict in his duty or that there has been an expression of the people, the constituency on which both depend, either revoking or showing a wish for a change. Otherwise, it seems to me it would be perfectly legitimate after starting Mr. Young out and he having been faithful to his duty, why there should be some reason why the writer of that paper comes in here and asks us to let him to come in and not Mr. Young. I do not see any point where Mr. Young has not faithfully done his duty. Neither is there any evidence showing any change in the minds of the people, his constituency, which, of course, above all other things we are to observe. It seems to me there was no evidence that Mr. Young did not do all that could be done; no evidence that he was notified. Whenever the Convention was reconvened, the contingency they were providing for, he presents himself for his seat, and meets as his competitor the gentleman that drew his petition and signed it. I have been unable to see that the constituency changed. They did not know where Mr. Young was; they were anxious to be represented; and therefore, in order to be sure they went through this election. It seems to me neither party has been in the wrong; but still on the common principle which governs in this case - the familiar principle that where neither party is in the wrong - intentional wrong - it should fall upon the party that took the first step from which as a consequence this damage has accrued; that familiar principle of equity which governs in all such cases. If we come to strict law in settling the matter, my mind is brought to that conclusion.

The hour for recess having arrived, Mr. Stevenson of Wood moved to extend the time half an hour, and it was agreed to.

MR. BROWN of Kanawha. The correctness of the rule of the gentleman from Cabell that if there were a controversy between two gentlemen and their interests were involved in the question at stake, the rule would be a very correct one; but I understand it is between the people, the constituents and not the representatives. Our object is to ascertain who is the representative of the people. Now, as we would not have both, we must take the one who is the representative, and as between the gentlemen I shall feel no partialities one way or the other. I do not think it is anything to the disadvantage of Dr. Gibson that his name is on the other petition. I rather think it is to his credit. I always like to see one man who is contesting for a place to see his name on his adversary's poll. It is an endorsement of the other man but no discredit to the man who gives the endorsement that the other is worthy.

But there is another rule of law more conclusive I think and more applicable in this case and that is this: In the case of deeds the oldest shall prevail; but in the case of liens the last is always that which holds (Laughter). What I want to get at is what was the last "will and testament" of these people of Pocahontas. They may have all voted for Mr. Young in the first instance; but the last will and testament is what I want to ascertain, because they may have changed their minds for reasons satisfactory to themselves. We have nothing to do with their reasons. It may be the men on the petition were voters and in every case voted for the other gentleman. But if the reasons assigned by the gentleman from Upshur rather go to show had the fact in contemplation and changed their minds and votes for the purpose of insuring a representative, and so selected a man they knew was there. The vote is regular, and although not precisely as provided in the 6th section of the schedule, it comes fully up to the substance of it, and is about as near to it as it can be made. It was done, also, we are advised, under the advice of the county commonwealth's attorney as the most legitimate mode in which the people could be represented.

MR. STUART of Doddridge. There was nothing on that committee indicating that these gentlemen on the petition voted for Dr. Gibson or saying that as many men voted for Gibson as are on that petition of Mr. Young or showing that these men had changed their last will and testament.

MR. PINNELL. There was precisely the same before the committee that you have before the house.

Cries of "Question!"

Mr. Lauck inquired whether Mr. Pinnell was acquainted with the list of signatures attached to the petition.

MR. PINNELL. Never examined it.

The roll was called and each member when his name was called voted for Mr. Gibson or Mr. Young according to his preference, the vote resulting as follows:

For David W. Gibson - Messrs. Soper (President), Brown of Preston, Brown of Kanawha, Boggs, Caldwell, Chapman, Cook, Dille, Dolly, Griffith, Hall, Harrison, Hubbs, Hervey, Hagar, Hoback, Irvine, Lamb, Lauck, Montague, Mahon, McCutchen, O'Brien, Parsons, Powell, Pomeroy, Pinnell, Ryan, Ross, Sinsel, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Sheets, Smith, Taylor, Tichenell, Trainer, Van Winkle, Willey, Warder, Wilson, and Wheat - 43.

For Samuel Young - Messrs. Carskadon, Dering, Parker, Ruffner, Simmons, and Stuart of Doddridge - 6.

MR. VAN WINKLE. I move that the remainder of the resolution of the gentleman from Marion be acted on; that the contestant be entitled to his mileage both ways and three days pay and that the Clerk pay him.

MR. SINSEL. I would suggest an amendment: two days; that is all he has been in attendance.

MR. VAN WINKLE. He will be three days before he can get away. We have spent ten times that in discussing it this morning.

MR. POWELL. Would it not be well for Dr. Gibson to come forward and have the oath administered so that he may vote on this?

Dr. Gibson, accordingly came forward to the Clerk's desk and took the prescribed oath and took his seat.

The question on Mr. Van Winkle's motion was put and the order made to allow Col. Young his mileage and per diem.

MR. VAN WINKLE. I now ask leave to offer the resolution I alluded to this morning. I suppose unless we make the change required by act of Congress, there is nothing for us to do but to go home. It is therefore necessary before we initiate any other business that matter should be disposed of. The question has arisen - it probably has come to the knowledge of most of the members - as to the right of the owners to be compensated for the slaves proposed to be liberated by this section, that is, the amendment proposed by the act of Congress - the right of those owners to compensation. I have given the subject some examination and my mind is by no means clear that they are not entitled to it. But in order that the Convention may have the benefit of a deliberate and proper examination of the subject, I have drawn up a resolution which I will read for information:

"RESOLVED, That the seventh section of the eleventh article of the Constitution be stricken out, and the following inserted in its place:

"7. The children of slaves born within the limits of this State after the fourth day of July in the year one thousand eight hundred and sixty-three, shall be free; and all slaves within the limits of the said State who shall, at the time aforesaid, be under the age of ten years, shall be free when they arrive at the age of twenty-one years; and all slaves over ten and under twenty-one years, shall be free when they arrive at the age of twenty-five years; and no slave shall be permitted to come into the State for permanent residence therein.

"RESOLVED, That the foregoing resolution be referred to a special committee of five members, with instructions to inquire and report whether any provision looking or having reference to the compensation of the owners of slaves freed by the proposed amendment of the Constitution, should or can with propriety, be inserted in that instrument, or adopted by the Convention."

MR. VAN WINKLE. This last resolution proposes two questions:

First, Whether any provision under any circumstances in reference to this matter should be inserted in the Constitution; secondly, if the Convention be of the affirmative opinion, then the question of the propriety of inserting it.

Looking to the question whether such an insertion might not be such a variation as would necessitate the matter going back to Congress, I would simply state that the necessity for the insertion of any alteration whatever in the section proposed by Congress or any other part of the Constitution may be avoided. I would like to suggest that the Convention should raise a committee who will take some pains to examine into the subject and give the Convention such information as we all desire when it comes up for action. I believe all the difficulty likely to arise out of it may be avoided to the perfect and entire satisfaction of any member of the Convention. Whether I am right or wrong in this, I shall be better informed after the action of the committee and the Convention.

I therefore offer the resolutions, and I will say now if this committee is appointed, I will make a motion that the adjournment be for the day.

MR. STUART of Doddridge. I would be in favor of striking out that portion of the resolution for the appointment of a committee.

MR. VAN WINKLE. I would suggest to the gentleman that it is hardly courteous to refuse a committee to inquire on any subject.

MR. STUART. I have my reasons for it.

THE PRESIDENT. The question would come up directly after the report of the committee.

MR. STUART. There would be nothing to do until tomorrow. We can do all the business proposed in the resolution very easily. I think the minds of members in this body are perfectly made up on that question. It will delay it unnecessarily. I am, for one, prepared to act, and would rather do it.

MR. WILLEY. This thing ought to go to a committee, sir. My friend from Doddridge cannot be more decided in his opinion on this subject than I am. Still it ought to go to a committee. I should be very much disappointed if you get a committee in this body who will not be prepared to vote distinctly. Still I think it may very properly, however, go to a committee. I am sure a committee will bring in something that will be satisfactory to us. There is no difference of opinion on the question; but the gravity of the subject requires I think that there should be something like a deliberate expression on the part of the Convention. Therefore, I hope my friend will withdraw his objection.

MR. STUART. I will withdraw it at the solicitation of my friend.

The question was then put on the last of the foregoing resolutions, and it was agreed to; and subsequently the president announced the appointment of the special committee as follows:

Van Winkle, of Wood, Chairman; Willey, of Monongalia; Brown, of Kanawha; Lamb, of Ohio; Parker, of Cabell.

Upon the announcement of the committee, Mr. Brown of Kanawha, said:

I wish to offer a resolution, which may be printed and go to the committee. I should have offered it, under our standing rule, to go to the Committee on Fundamental and General Provisions. I will ask that the resolution be printed. I will read it for information before sending it to the Secretary's desk:

"RESOLVED, That the clause accepting and ratifying the Constitution prescribed by Congress for the admission of the State of West Virginia into the Union, ought also to contain a provision requiring the legislature to make just compensation to the loyal owners whose slaves shall be emancipated thereby, or at least be accompanied by an explicit and positive declaration by this Convention, that the ratification and adoption of said condition shall not be construed as changing in any degree, the sixth section of the second article of the Constitution of West Virginia as already adopted and ratified by the people; nor in any wise diminish the rights of persons and property secured thereby any more than if said condition had not existed."

Mr. Harrison moved that 8000 copies of the address delivered by the gentleman from Monongalia be printed in English and 1000 in German for the use of the Convention. Referred on his request to the Committee on Printing.

Mr. Hervey offered the following:

"RESOLVED, That the West Virginia volunteers in the army of the United States should be entitled to vote at all elections during the continuance of the war."

Referred to Committee on Revision.

Mr. Lamb asked that the ordinance submitted by him should go to the same committee. So ordered.

The Convention adjourned, on motion of Mr. Van Winkle, to meet each day at 10 o'clock A. M. until otherwise ordered.

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Chapter Eleven: First Constitutional Convention of West Virginia

A State of Convenience

West Virginia Archives and History