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Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

December 6, 1861

Prayer by Rev. D. W. Fisher, of the Presbyterian Church.

Journal read.

MR. CALDWELL. Mr. President, so far as my experience is concerned, it is rather unusual for the Chairman of a committee to make a report, and also a minority report. I did not design, sir, in offering the paper which was read here yesterday, anything more than a substitute for one of the sections of the report of the committee. I did not look upon it as a minority in fact of the committee itself. It was a proposition made by two members of the committee, as a matter of individual opinion merely, that it should be embraced as a substitute for the ninth section of the report; and I merely asked that it should be laid on the table and printed so that the members of the Convention should have the benefit of it. I would rather it should appear that it was offered by those two gentlemen as a substitute for the ninth section of the report of the Committee.

MR. STEVENSON of Wood. Mr. President -

THE PRESIDENT. What alteration would the gentleman from Marshall suggest in the record?

MR. CALDWELL. I would suggest it should read that Mr. Ruff- ner and myself offered the ninth section as a substitute for that clause. It was submitted by me but not as chairman of the committee, but merely in my privilege as a member of the committee on behalf of myself and the member from Kanawha as a substitute for the ninth section, and not at all as chairman of the committee.

MR. STEVENSON of Wood. I did not pay very particular attention to the reading of the minutes, but I would suggest that I presented a petition yesterday from a number of citizens of my county and I believe it is customary to make a brief notice of such presentations on the record in such conventions as this. And I would like it to be done if it is consistent with the duties of the recording officer.

The corrections desired by the gentleman from Marshall and the gentleman from Wood were made in the Journal by the Secretary and it was approved.

MR. WARDER. Mr. President, I desire to offer the following resolution:

"RESOLVED, That this Convention will meet in this hall on Saturday at 2 o'clock, p. m. and in a body visit the Fifth Ward Public School of this city, in compliance with the invitation received and accepted on Wednesday; and that the Secretary of this Convention immediately inform the officers of said School of the proposed visit."

The resolution was adopted.

MR. WARDER. Upon a moment's reflection, perhaps it would be better to change that from Saturday till Monday. The School will not be in session on Saturday. I would ask to recall it and change it to Monday.

The suggestion was concurred in and the resolution so altered.

Mr. Ruffner offered the following proposition:


"To the report of the Committee on Boundary, to be inserted between lines 34 and 35.

RESOLVED, That if from any cause a full and free expression of the popular will in the counties embraced in the tables, B, C, and D, in the report of the Committee on Boundary or any of the said districts on the said third Thursday of April, 1862, provision shall be made for eliciting the same on some other day."

Mr. Wilson, the following:

"RESOLVED, That it shall be the duty of the Legislature of this State to make suitable provisions to District and lay off the counties of this Commonwealth in School Districts for Free Schools, to be supported by such portion of the Literary Fund of the State of Virginia as the State may be entitled to, all moneys accruing to the State by fines, penalties, forfeitures, &c., and all moneys accruing to the State from confiscation of property of rebels residing within the boundaries of this State, and two-thirds of the capitation tax to be levied and collected annually according to the provisions of the Constitution, shall be applied to the establishment and support of Public Free Schools."

Mr. Dolly submitted the following resolution:

"RESOLVED, That the people of West Virginia now in Convention in the city of Wheeling to revise and frame a Constitution for the proposed new State, do, before further proceeding in the annexation of counties, repeal the act of the former Convention, on boundary."

MR. POMEROY. I would move that that be laid on the table.

MR. CALDWELL. I second the motion. It can be called up any time.

THE PRESIDENT. The next business in order is the unfinished business of yesterday, the consideration of the report of the Committee on Boundary. The question is on the first section, on the amendment of the gentleman from Preston to the amendment of the gentleman from Harrison.

MR. DERING. Mr. President, I made a motion for an adjournment last evening. It was after having heard my colleague say that he was perplexed and that it was a great question we had under consideration. Sir, if a gentleman of his legal attainments and of his long experience in public affairs was perplexed with this question, then what could you expect of others of us who do not enjoy the advantages in that respect that he does? We find here, sir, lawyers, differing as to the legality of the question involved in this ordinance; and, sir, in the absence of any positive testimony from the counties alluded to in this ordinance in reference to the difficulties of holding an election, I say the presumption is a fair one, sir, that they do not desire to be admitted into our new State, and participate with us in its advantages. The fair presumption is, sir, if they had a desire to hold an election - if there had been insurmountable difficulties in the way - if the rebel soldiery were there to prevent them - they would, at least, sir, on the present occasion have had some representative here in some form to express their wishes on this subject. But, sir, we have no representative from any of those counties, either formal or informal. We have no one here, sir, from any of those counties expressing a desire to come in and take part with us in this grand movement. I say, sir, then, in the absence of all testimony of a positive character in reference to these counties, my opinion is we should not embrace them within the boundaries of our new State.

Sir, I hold, this morning, although I have been perplexed on this question of boundary, that we should break away from the technical bearings of this case and look at the question in the light of expediency. The question it seems to me comes up before us this morning, is it expedient to embrace these counties in the boundaries of our new State? And in the first place, sir, I think it is inexpedient. We have got no evidence of their desire to participate with us or to come in amongst us. If you open this boundary question, sir, there is no telling where it will end. I think there is danger in opening the door upon this vexed question. Sir, we will never have any fixed boundaries if we leave the door open and leave counties to come in now and then as they may want to do hereafter. They, sir, in these counties spoken of have not expressed any desire - have not complied -with the provisions of this ordinance. They have given us no positive evidence of any difficulties in the way of an election, having sent no delegates here, sir, in any manner to express their wishes on that subject.

Sir, the presumption is a fair one that in these counties there are a great many rebels. The presumption is a fair one, sir, that a large proportion of the inhabitants of these counties are of the secession stripe; and, sir, I for one am not willing to embrace any people in the bounds of our new State who do not desire to come with us. I for one do not desire to embrace any more of this rebellious element of secession within the bounds of our new State than we already have. What will be the result, sir, if you go to Congress with your State boundaries undefined and unfixed? Do you think they will admit us into the Union? Sir, with the many difficulties surrounding this question in presenting our claims to Congress, I think that in going to Congress without our boundaries fixed and defined, we will be placing an insurmountable barrier in the way of our admission into the Union. Let us fix and define our boundaries well. Let us go to Congress and ask them to admit us into the Union. The people, sir, within the bounds of this new State everywhere have expressed their loyalty by large majorities, and desire to emerge from this anomalous position which we now occupy. Our allegiance is claimed by two States on the part of two different national governments. Let us, sir, define our position; let us, sir, define our boundaries; comply with the requirements of the Constitution of the United States; and go to Congress and ask them to take us into the Union. Our people, sir, the people in Monongalia are desirous of seeing this new State formed and inaugurated. They are desirous, sir, of emerging from this state of uncertainty in which we now exist. They want to know, sir, whether we are to be a state in this Union. They want to know, sir, whether we are to belong to those arch traitors in the South, or whether we are to take our position under the Stars and Stripes in this glorious Union of ours, or whether we are to remain in this uncertain and unhappy condition any longer. Sir, the people are clamorous for a new State. They are clamorous to be admitted by the Congress of the United States into this Union; and they never will rest satisfied until they are admitted. And, sir, let me say to the delegates to this Convention that the people within the boundaries of this new State will hold them to a strict responsibility, if they let anything delay them from marching right on to that desired end. Sir, we have thirty- nine counties now - forty-one, I believe with Hampshire and Hardy - that have expressed their desire to be formed into a new State by an overwhelming majority. We, sir, have in our midst all the resources and elements of a great State, and if we will inaugurate this new State and develop our resources, I think, sir, we will have a State that for prosperity will challenge comparison with any of the sister States of this Union. Why, sir, look at the New England States - look at little Rhode Island and New Jersey and Delaware and Connecticut, and a number of others that I might mention - smaller in point of territory than West Virginia; but, sir, they are the most prosperous States of this Union. They, sir, challenge comparison with the other States and show a degree of thrift and prosperity that the larger States cannot exhibit in proportion to population and territory and resources.

I say, sir, then, that I am for defining our boundary. I am for bringing our new State, with all its elements of wealth into existence and inviting emigration from abroad of the loyal citizens of this Union. Sir, we have a capital now of two hundred and seventy odd thousand inhabitants; and I predict here this morning, sir, that before five years we will have a million. We will go on in that ratio for years to come, and our hills and valleys shall be dotted with a thrifty, prosperous and numerous population.

Let us then, sir, here at the very threshold take the bull by the horns, go into the expediency of this question, leave the technical and legal bearings of it as the lawyers themselves differ upon them and decide at once, sir, that we will define our boundaries as they have been defined and adhere to them, and so present our Constitution to Congress and ask to be admitted with it into this glorious Union of ours.

Sir, I desire to claim allegiance to the Stars and Stripes. I desire to live under and I desire to die under them. And I do not want to be claimed, sir, by Jeff Davis and his minions, or occupy this position of uncertainty any longer. Let us at once define our boundaries, decide this question, and march on to our high destiny.

MR. BROOKS. Mr. President, it is an old adage, sir, and a true one that "doctors will differ," and I have learned from observation that lawyers will differ also. I am neither a doctor nor a lawyer, nor posted on the technicalities that seem to govern some men in debates specially touching law points. But I have got it somehow on my mind that I do know a little about consistency, and when a thing presents itself whether it really bears the aspect of consistency or inconsistency; and therefore I feel disposed this morning to make a few remarks in support of the amendment offered by the gentleman from Preston, and touching the legality of the report under consideration and which he offers to amend.

It has been more than intimated, sir, on this floor that the ordinance that gave us power and being (or being and power) does not bind us. There are views I take that present to me the conclusion that expediency will do away with some items of that ordinance, while it presents itself to me that no expediency can do away with other items. In the first place that ordinance requires us to present to our people a constitution for their ratification by the fourth Thursday of the present month. Judging from the aspects of things this morning, that amounts to an inexpediency, to say, the least of it, from the fact that we shall be incapable of maturing our work here and letting it pass out sufficiently early for the people to examine and consider it by that time. Hence driven we are to supercede that part of the ordinance. But on the part under consideration this principle of boundary, there is presented to my mind no such appearance of necessity. The Convention in the passage of that ordinance prescribed principles to govern the whole matter. They gave us a boundary of thirty-nine counties. They named conditions upon which other counties might come in, connect themselves to and form part of the new State. Those conditions went abroad; those conditions were understood; but up to the present hour we have no information whatever, no intimation in the least, that those counties spoken of in that part of the report which the gentleman proposes to amend, availed themselves of the opportunity thus afforded, or have the smallest desire to make a part of our new State. The fact is that during the interval that has transpired since the passage of that ordinance, I have been conversant with some, at least, of the citizens of some of those counties, who have informed me that the spirit there is that we are rebels and should be treated as such; that this Federal force by which we are protected and enjoy liberty we this day enjoy are intruders, and hence an overwhelming majority of the citizens of those counties when they speak of us speak of the "rebels" and "intruders."

But apart from this, let their spirit be what it may, I cannot see, for my part, the consistency of their adoption as a part of this new State. Looking at the proceedings of this Convention, we find in this report included two more counties. Wise and Buchanan. These counties were stricken out of the report by a vote of this body. The argument now brought up for the inclusion of Monroe, Mercer, Greenbrier and Pocahontas, is that out here is a breakwater that severs them from the valley, and as the streams flow in this direction they should necessarily belong to this State. Well, why were those other counties stricken off? We find by examination that the same breakwater passes on and places Wise and Buchanan in the same category. Their waters flow to the West, and hence they too are connected with us. But they are stricken off, and why is it? What was the argument? Why, sir, we are gravely told the springs of these two counties issued into another river and did not pass right here so we could drink out of them. That is in substance the argument. Therefore they must be stricken off; it is inexpedient to have them; they do not belong to us. But Greenbrier, Mercer, Monroe and Pocahontas must belong to us because of this breakwater which separates them from the valley and eastern part of the state. Now I cannot see the consistency of this difference, when the reason assigned for making the difference seems so simple and so small.

But, sir, I presume the spirit of the question has not been set forth in this matter. These four counties are one of the garden spots of western Virginia for wealth, and the revenues that flow out of that wealth should necessarily flow into the treasury of West Virginia. That is the grand argument, sir, and let us have it barefaced. But an argument has been presented here opposing the motion of the gentleman from Preston, telling us that if they are not loyal we must make them so; therefore we must have them. Now, I ought to be patriotic; both my grandfathers served in the Revolution; my father served in the war of 1812. The same blood ought to run in my veins and the same spirit move my bowels; but J acknowledge today there is not enough of the war-horse in me to take these counties into our boundaries contrary to their wishes - to compel them to come in. If we begin this movement we will extend our borders a little further. Just beyond the valley there is another breakwater that we have looked at for the last thirty years and thought it would rightly divide the eastern and western Virginia so as to make two states. Well then we will extend our boundary to that and say there shall be the line, let matters be a's they may. Let us take the ordinance - what is the spirit of it? Does it breathe the same spirit? No, sir; from the thunder tones that they shall belong to this West Virginia, it softens down to the whisperings of the zephyr and says they may come in upon the concurrence of a vote of a majority of the citizen's and a majority of the counties - requiring a condition for their annexation, that they come in willingly.

Well, that is the principle on which I would like to have it, and the principle I think on which the best governments are based. If I understand anything about the strength of a government it consists in the principle that government is based, and the principle of strength in a government is that which is most voluntary. Compulsion has never produced good .subjects and will not produce good citizens; but where the people voluntarily take upon them the yoke of government, they submit to it willingly, they move harmoniously; and hence the government established by voluntary association appears to me to be evidently the most permanent, the strongest government known.

But we might extend it a little further if this is the spirit of the terms and precedent by which we are to be directed and governed in our deliberation's here and conclusions. Just out yonder lies a territory belonging to Great Britain; we call it Canada; and surely if there is any law of natural boundary by which one territory belongs to another there are natural boundaries by which Canada should belong to this great republic. Then we will rise in the pride of our might and subdue Canada also and push on and grasp the entire new world and call it all this great republic on the same principle.

But I am not in favor, I said, of compulsion. Therefore as we have had no intimation whatever from these counties that they wish to come in, let us look at the principle of action laid down in the ordinance that gives us the power we possess. If they had said by a vote that they wished to come in, they were provided for. If they had said by a vote that they did not wish to come in or made no expression of their desire or wishes on the subject, it remains that we are to pass them by. And notwithstanding some have supposed that this ordinance that has given us being and power could be passed by and disregarded and that we should rise in the strength of our sublimity and do what seemeth to us good, yet I feel for one that until new light is received, until I shall have learned more than I have ever learned, I feel, for one, bound to respect the principle laid down in that ordinance; and if those gentlemen whose heads are clearer than mine and who shine with a little more luster, will produce the argument by which we may see more clearly the consistency of principles for which they contend, we shall be perhaps influenced to go with them; but until that we go with the gentleman from Preston, for the striking out entirely of these counties; having nothing to do with them, but abiding by the principles by which we undoubtedly, so far as I conceive, should be governed in our decisions.

MR. CARSKADON. As the representative in part of the counties lying out of the first proposed boundary of the State, I feel an interest in this question, and shall take this opportunity to give the Convention my views upon the subject.

In the first place I hold that if we confine ourselves to the spirit of the ordinance under which we were called here, we do not violate it in taking in said counties; as my friend from Wood mentioned yesterday, it being impossible for those counties to hold the election which the Convention that called us here anticipated. It is nothing but right in my opinion that they shall have a chance to vote, and say whether they wish to come in or not. Now, in the county which I have the honor in part to represent, we opened a poll at but two precincts, and polled a vote of between sixty and seventy for the candidates to this Convention. There was a vote of about 179, I think, but the residue above what I have mentioned were soldiers, who had a right to vote on the division of the State but not for the candidate to sit in this Convention. And I know that this is not a proper representation of the voters of the Union men of the county; because we have more than sixty Union men, as you doubtless know in the county, for under the pressure of the military power we cast a vote against the ordinance of secession of some eight or nine hundred and I anticipate if the vote could be taken now in the county we could carry it by a Union majority.

Well, by adopting the report which the committee have brought in, we will give the county with those other counties lying contiguous, a chance to vote and say whether they will come in or not. I have seen men from the surrounding counties who say that they believe a majority in the counties surrounding and contiguous to ours within the proposed boundary, are in favor of being included within the new State. Well, look at the vote in Morgan and Berkeley. In Berkeley there was a vote of 800 majority against the ordinance of secession. Their interest is our interest. Their interest is with this division of the state. Therefore I hold that that county and the county of Morgan which gave 571, if I recollect aright, against the ordinance of secession, would I have not the least doubt been anxious to join in the State of West Virginia. And I hold that we are a Convention capable - we are called by an ordinance of the convention which sat in August, but we are not as a convention right from the people. I do not pretend to be of the legal profession, but I think our powers upon this matter are beyond and above the powers of the convention which called us into being. For instance, the legislature may call a convention of the people, and the people in convention may make laws and change the Constitution, as that body could not do that called them into being. Therefore I shall vote for the legality of this Convention having power to admit those counties.

MR. RUFFNER. I rise, sir, merely to protest against the line of argument of those two gentlemen who have addressed you in regard to the non-appearance of delegates from the counties embraced by this resolution. They cannot be ignorant of the fact that the secession armies have continued from the first of this contest to hold possession of the counties in consideration; and it is well known that the power of the southern army has been exerted even to the suppression of loyal sentiment on the part of the citizens; and it is impossible in the nature of things that those counties or any portion of their citizens could have expressed themselves in regard to their disposition upon this subject; and it is unfair to assume from that fact that they do not wish to be represented here. It was upon this point alone that I desired to make this single remark.

MR. STEVENSON of Wood. I have listened with some pleasure and profit to this discussion so far, and my impression from what I have heard is rather in favor of confining our operations to the limits proposed by the ordinance of the convention calling us together. It is possible, sir, that I may change my opinion in reference to three or four counties that are spoken of; but it does seem to me if we are to expand our boundaries to any considerable number of the counties embraced within this report, that we are likely to get into the very difficulty that we profess to be trying to get out of. The general impression here is, sir, although there do not appear to be any statistics that are very reliable on the matter, that a very considerable number, if not a majority, of these counties, are controlled by the very element which has brought our National and State calamities on us - the element of secession. Now, sir, if that be true - and I have not heard it contradicted here in reference to most of the counties - it does seem to me it would be very injudicious to extend the boundaries of this new- State to any considerable number of these counties. If I could be satisfied, sir, that these counties of Mercer, Monroe, Greenbrier and Pocahontas were made up of any considerable number of loyal people - if I thought extending the boundaries to embrace these would not introduce an element of discord - I would favor it. But I have not been and am not satisfied of that fact. They lie, sir, it seems to me, within the boundaries that would be a natural division, so far as it goes, for this new State.

There is another consideration here, Mr. President. The complaints that I have generally heard urged against extending the limits of this new State over any part of the Valley of Virginia are these: That the people there have not a community of interest with us; and if the statement which I made, and which is believed to be true, be really true, that a majority of the inhabitants of these counties are opposed to this new State movement, and are at the present time either in active or sympathetic rebellion against the government, will the extension of the boundaries of this new State to embrace them not be introducing the very element of discord that we are trying to escape, for which the people have assembled this Convention? Let me suppose a case, sir - Suppose we extend the limits of this new State so as to embrace a number of these counties. We submit to them a Constitution, which we create here for the organization of the new State. We of course invite those people to vote upon this Constitution; and suppose, as I think the case at least very probable, that a majority of the people in some dozen or more of these counties reject that Constitution, I know the friends who favor this extension will say that the immediate and only effect would be to put them outside of the pale of this new State - or rather prevent them from coming into it - but that will not be the only effect. We may understand it; we may see it in that light; but I apprehend, sir, that our fellow citizens in other parts of the country will get a different impression - an impression that a large number of counties within the boundaries of this new State are hostile to the organic law which the Convention made for it; and therefore its moral effect would be so far destructive to the best interests of that Constitution and of that new State. I would say this, sir, however, that I have no objection to extending the boundaries of this new State to such counties as we know to be loyal to the government and in favor of this new State measure.

If we know that their people - if we can have any evidence of that fact - if we can have any assurance that a majority of their people are in favor of this new State movement - that they are loyal to this new State, and will be faithful and loyal to their country - and that they have some community and identity of interest with us - 1 would not be opposed to an extension of boundary so as to embrace such counties; but I think, sir, that the limits laid down in the ordinance of that convention which assembled us here will probably be as nearly right as any this Convention can make; and until I am better satisfied, sir, that it will be wisdom and good policy to extend these boundaries, I shall feel inclined to vote for the amendment of the gentleman from Preston.

MR. PARKER. Mr. President, I would say a few words as to the powers of this Convention. Has this Convention, then, the powers to change the boundaries as they have been fixed by the other convention? I have looked over the question and jotted it down to make my remarks as concise as I can and save the time of the Convention.

It is a familiar principle of law and equity that when a thing is to be divided, the existing .subdivisions changed, all parties interested must be represented. That I think all the lawyers, and those that are not lawyers, here will agree to. If three persons are the joint owners of a field all must be represented in order to make a valid division. That we shall agree to. If after the division is made and the bounds fixed one of the parties should attempt to change them without the consent of the other two, he would do an act which human and divine law condemns - he would "remove his neighbor's land marks." If in making the division, however, the two should impose on the portion allotted to the other, a name, as white acre or black acre, or prescribe the manner in which he should cultivate his portion after the interest of the two in it had entirely ceased, these would be restrictions inconsistent with the sale and absolute ownership of the one and of his use of it - his right to use his own as every man has a right to. This great right which attaches to all absolute ownership being understood, those restrictions would be null and void. I believe every legal gentleman here will agree with me in that principle. Therefore such restrictions would not be binding; because thus to attempt to put upon him a thing or a name, or prescribe something about his land, which whether he did it or did not would not hurt them or affect their interests but might very much hamper their neighbor, their former co-owner in that piece of land, would be entirely inadmissible and wrong - well there is no sense nor right in it and therefore the law rejects it. It is one man getting his hand into another man's business.

Such in principle I take to be the case now before us. In the State of Virginia, the subject here to be divided, the people of the whole State are the parties interested; and these people either through a convention or legislature which constitutionally represents them all, can. alone make the division so far as the State is concerned. The Convention that assembled here on the 11th of June last constitutionally represented the people of the whole State. By the treason of its officers, Letcher & Co., abdicated, and the powers of government becoming forfeited reverted to the people, the source of all power. As the disloyal portion were confederated with the traitors, were particeps criminis, equally guilty, they could not take advantage of the forfeiture as it would be taking advantage of their own wrong. I believe the legal gentlemen will agree with me in that respect. The loyal people alone could take advantage of the reversion of power and reorganize the government. The call to this Convention was general - to all the citizens throughout the State - all loyal citizens throughout the State; and it was their fault or their misfortune, which I am as sorry for as anybody, and sympathize with them as deeply as anybody - but it does not touch the question here, if all were not represented. If a county or senatorial district refuse or neglect to send a delegate or senator, there is no power to compel them. Those elected and attending are the Constitutional body and their acts bind all. And so it is with the legislature which met here last summer and are now in session here; it represents the whole people of Virginia.

Now such a Convention and legislature, with the consent of Congress can make any division they choose; and so far as the State is concerned they are like the three men that jointly owned the field. That Convention did authorize a division including the thirty-nine counties, absolutely fixing the boundaries, and by the other section of the ordinance, other counties were to come in on certain conditions. The conditions have not been complied with except Hardy and Hampshire, and I am not certain whether they strictly speaking have complied with them or not. I am on the legal question. The delegates of the thirty-nine counties and of such other counties as complied with the conditions in this ordinance, to be chosen in a mode prescribed were to meet in Convention to form a constitution for the government of the proposed new State - which Convention representing the thirty-nine counties, or forty-one counties, we are, as I understand it.

Now, can this Convention which represents but a small fraction of the whole people remove or alter the boundaries which the whole people, the owners of the thing to be divided, have fixed? It is in principle the third man altering the bounds the three have fixed, without the consent of the other two. The peculiar structure of our government and its name we have full control of; for these belong exclusively to us, the people of the State. The other portion of the people of the old State have no interest in it whatever. But in the boundaries they have a deep and most vital interest that seems to be manifest to us all. Or are you going to remove the boundary and take them all in? Another Convention representing the whole State, or the present legislature which represents all, (See Art. 4, as provided in the Federal Constitution) alone can do it.

The gentleman from Wood, Mr. Van Winkle, inquired yesterday if force had made it impossible for certain counties to comply with -

THE PRESIDENT. The gentleman will recollect that it is out of order to call the name of any member.

MR. PARKER. There being two gentlemen from Wood is my apology. I thank the President for the reminder.

The gentleman from Wood inquired yesterday, if force had made it impossible for certain counties to comply with the conditions, whether that fact would not waive the condition and authorize us to admit them. I say, No. It cannot enlarge our powers at all. Those who imposed those conditions, the whole people of Virginia through their legally constituted convention, or through their legally constituted legislature, can alone waive the conditions imposed and admit them. We have as much power, as it strikes me, over every county in Ohio as we have over these. It is competent and proper it would seem for our Convention here to agree on what we may think to be the wants of our constituents and recommend the same to the proper powers - recommend them to the present legislature or a convention of the whole people of Virginia.

Some gentlemen have suggested that as our whole work of reorganizing the old and forming the new government is revolutionary, this Convention can do what it pleases, even to removing a neighbor's land marks. I deny the premises, in toto. The reorganization of the old State government, and our proceedings thus far in framing the new, are all constitutional and legitimate. When the old government, by treason of its officers abdicated, its powers returned to the loyal people, and the loyal people being all called - as many represented in the Convention as chose to come or as could get here - I sympathize as deeply as any gentleman with those who could not - our question is a legal question entirely. That is the nature of the question, as I understand, now before us; whether in traveling out of the boundaries laid down, we are in view of the conditions of the ordinance, acting with authority or no authority; whether we the creature of the whole people, permitted by them to come up here, can turn round and annul and repeal their acts; whether the inferior. Then and not till then can it be done.

MR. BROWN of Kanawha. Mr. President, it seems to me the remarks of several gentlemen who have favored the striking out of these counties are inhabited by a number of our fellow citizens who have taken the side of secession, and that where they can even find that there is a majority for that idea that that is to be a conclusive ground for the exclusion of the counties and the people inhabiting them, from this fellowship. It seems to me if that idea is to prevail, then we are abandoning the principle in taking the boundary that is prescribed for the thirty-nine counties; for I understood some gentlemen to say in their remarks that they would vote against including any county if a majority of the people in that county were averse to being brought into this State. Now, sir, they have included the county of Braxton - I believe there is none that proposes to exclude it - where they polled some five hundred majority or more for the ordinance of secession, and where but for the armies of the Union a Union man could scarce maintain his residence in the county, because of the hostility of the majority of the people there against the Union. You have included the county of Logan where perhaps a still larger proportion of the people are opposed to the new State. Why? Simply because they favored the doctrine of secession and are resolved if it is in the power of man, to attach and ally themselves to the Southern Confederacy and throw off the galling yoke of the Union. Yet you propose to include them. Go into the county of Boone, and you have the same thing. Go into the county of Wayne - why, sir, you would have to go with an armed force to the court house now to hold an election, and then follow your polls to the Ohio river to save them from capture. And you do not propose to exclude these counties and people, and why? Upon the principle that you adopt they must be inevitably excluded. I want to know, sir, upon what principle you can exclude them. I understand, sir, that the only principle upon which we could exclude these people is that it is not the wish of the Union men of these counties to be in this fellowship. Why, sir, by what authority are you here today? Every man knows that the people of Virginia by a very large majority have voted, if you take the polls at the May election, for casting off the yoke of the Union, as they call it, and allying themselves and their fortunes with another people and another government. We know, sir, that there are two actual existing governments in the State of Virginia today; and that which commands a majority of the people of the State by their suffrages is assembled in another quarter and knows another allegiance. Are we here today representing that people? No, sir. We are here representing the Union men of Virginia. I understand that the very ground on which we claim to be here, is the fact that as citizens of the Union, as loyal men of Virginia, we have a right to hold the government of Virginia in the Union and we are attempting it; and this government by which we are assembled is not an excrescence and outrage on the laws of the land, but only in accordance with them to maintain the rights of the Union people. Then, sir, if that be the reason and ground of this government, though it be in a very large minority of the people of the State - if that be the reason of it, sir, why I ask if there be a minority in the county of Greenbrier who are in favor of sustaining the Union and of uniting in the new State here with the people of these other counties - why should they be excluded on this principle? Why turn them over to the tender mercies of a government that will hang every man who opens his mouth against its authority? These people are under the tread of Confederate armies. Why, you talk about delegates not being here from the counties of Greenbrier, Pocahontas, Mercer and Monroe! Sir, Gen. Rosecrans, with his 28,000 men has not been able to plant his standard within the limits of these counties; and if he cannot go to them, how I ask can the representatives of this people come to us? And yet the gentlemen turn these people over to the tender mercies of these foes. Have we no interest or fellowship or community of feeling with these counties, whose waters from their mountain springs run down to our rivers, and from which we drink daily? Why, sir, have you no interest and community of feeling with them? Have we on the Kanawha no interest with those whose only outlet is through our territory - feeling as much connection with them by everything that makes a people one as with the people in this portion of the State, from whom we are many hundred miles distant, and with whom we have in many respects very little commerce? I want to know, sir, if you are to regard the rights and interests of the Union people upon what principle you exclude these men in these counties now proposed to be embraced? The Creator has built the mountain barriers there and put them on our side of it. He has made the waters flow from them to us. He has planted their mountain country just like ours and covered it with their flocks and farms and herds. They are bone of our bone and flesh of our flesh, for they are our families and neighbors all intermingled. They are not settled by strangers nor people of foreign birth. We have an immediate and constant intercourse and community of feeling with them, and their fortunes and interests are ours, and ours are theirs; and therefore it is that I feel I am compelled to do justice to these people, when they have not been able to be here because the government of the Union has not done its duty and freed these people from the oppressions that now trample them under foot.

If we look at the mountain ranges, there is another view, it seems to me, in which these people have a common interest with us and that a principle of State policy should secure in having them with us; and that is that we stand here, as we may say, on the confines of two great confederacies. We all claim we are citizens within the Union and that they shall never tear asunder the bonds of the Union; but these southern people claim that the Union is already severed and that you never shall spread the flag of the country over them again. The question no longer is a matter of right but of power - can you restore the Union? Sir, you never can do it unless the people of the Union stand by the government and never flinch from the evils and burthens that are necessary to sustain it. We are along its border. Suppose the people of the free States should demur, and the Union was at the end of some two or three years of expensive and ruinous warfare to the whole nation - suppose they should say: we have found ourselves utterly and entirely incompetent to restore this Union as we expected; we are tired of this business; we will drop this thing; we will turn our members out of Congress and send men there who will make a treaty with these Confederates; we will only look for guarantees of self protection. And then I ask you, sir, if such a state of things should take place - and who, Mr. President, that look at the progress of the war can say that such a thing may not happen? Here are five or ten millions of men saying it shall happen. We are attempting to restore it; and if they were attempting to force their government on us we would successfully resist; and I believe we will resist it and put it down, but then, sir, I am no prophet and it may be otherwise. Suppose then, sir, such a state of things and that there should be an acknowledgment - some great victory on their part or misfortune on ours - that these European powers should ally themselves on the side of this Southern Confederacy and cover the whole waters of the ocean with foreign foes - and it should result in an acknowledgment of this Southern Confederacy - where would we be if we are to have a mountain barrier here and that hostile foe on this side of that mountain? Our fellow citizens along the river may feel somewhat secure, but when you go back to the counties of Wyoming and Nicholas within these bounds of the thirty-nine counties - ask those people what security they will have with hostile armies all around their border and in their midst. Bear in mind, Mr. President, that even Gen. Rosecrans' army does not extend to the interior limits of the thirty-nine counties; that these Confederates are now within the limits of your thirty-nine counties; and that if you ever expect to keep them on the other side of the mountains you must march up to the mountains and then plant your standard and there make the defense. And I say, sir, if we are to have security and peace to our homes and firesides except along the border where you can cross the river when the foe shall come; and I have no doubt some of the gentlemen here who are opposing the introduction of these counties as our security, crossed the river recently to save their bacon when the foe was at hand. But those of us too far from the river have too long a race to run at every driving in of the pickets. And so we want these mountain barriers to secure our homes against the depredations of hostile foes. These are high considerations that induce me to go for it, and other considerations connected with the fact that I know something of the sentiments of the Union people of these counties, and that they will vote as unanimous as the people of any county in the new State for its establishment and for their security in it. They, now, sir, cannot open their mouths lest they be carried to Richmond and there incarcerated for treason. We are legislating now for these Union people, for all the secessionists must either give up or leave the territory. There is no alternative. And then, sir, if you are predicating your whole action on security to the Union men of the territory, the safety of us as a people, why hesitate, when you have extended a condition to these people to have a vote when it was utterly impossible to do so, and when we know the feelings of the Union men are all with us - while we know, too, the secessionists are with us nowhere? In my county, although they are in a large minority, I can say candidly they are as honorable as any man anywhere and would not stoop to do an unworthy act upon any consideration. They conscientiously and honestly believe secession is right and that you are doing wrong in attempting to coerce them; and before they would come into this new State now, so hostile are they to it and to the Union, they would rather be allied to Siberia or Turkey or any other government that you could conceive, than be here in our midst. I say, while not representing them, I know their wishes and feelings, and they are opposed to me and mine. I stand here the representative of the Union men of my county and not her foes, I therefore cannot hesitate when I know the feeling and connections of these people; and I know it is impossible in the very nature of things that they should have their representatives here, unless they steal away between two days and run the gauntlet in order to escape.

The Convention then took a recess.


THE PRESIDENT. The Chair has a communication from the Secretary of the Commonwealth which he will proceed to lay before the Convention:


Wheeling, Va., December 4, 1861.

President of the Constitution Convention:
SIR: - I have the honor to submit the following exhibit of the vote on the "Ordinance for the formation of a new State out of a portion of the territory of this State," in the counties prescribed in said Ordinance, prepared under resolution of the Convention, over which you preside.

The returns from many of the counties reached this office in a confused state, but it is believed the result given, is, in the mail correct.

Respectfully submitted,
L. A. HAGANS, Sec'y Commonwealth.


COUNTIES For A New State Against A New State
Barbour 311 7
Braxton 22 0
Boone 68 0
Brooke 357 154
Clay 76 0
Cabell 209 5
Calhoun No Returns. No Returns.
Doddridge 497 10
Fayette No Returns. No Returns.
Gilmer 108 0
Harrison 1148 12
Hancock 263 67
Hardy 150 0
Hampshire 195 18
Jackson 225 16
Kanawha 1039 1
Logan No Returns. No Returns.
Lewis 464 3
Monongalia 1610 18
Marion 663 35
Marshall 1371 37
Mason 804 83
Nicholas No Returns. No Returns.
Ohio 1140 139
Preston 1764 9
Putnam 209 0
Pleasants 198 14
Raleigh 32 0
Randolph 171 2
Roane 131 0
Ritchie 603 7
Tucker 65 0
Taylor 498 10
Tyler 699 15
Upshur 614 0
Wyoming No Returns. No Returns.
Webster No Returns. No Returns.
Wayne 296 10
Wirt 367 11
Wood 1104 48
Wetzel 664 50
Vote of the 3rd Regiment of
Virginia Volunteers, stationed at Beverly


18408 781

Whole number of Votes................19,189
For A New State..........................18,408
Against A New State.........................781
Majority for a New State..............17,627

MR. CALDWELL. I move that the document be laid on the table and printed.

Agreed to.

THE PRESIDENT. When the Convention adjourned it had under consideration the amendment of the gentleman from Preston, to the amendment of the gentlemen from Harrison. The question is on the adoption of the amendment to the amendment.

MR. LAMB. Mr. President, if there is no other gentleman who proposes to occupy the floor upon this question, there are a few remarks on this subject I deem it necessary to make in order to a proper understanding of it.

I would remark in the first place that I regret the mode in which the question is presented by the motion of the gentleman from Preston. It is but the ordinary course, sir, that a resolution should be perfected, that its friends may present it in its best possible shape before the question comes upon its adoption or rejection; yet the motion of the gentleman from Preston is nothing else but a motion to reject the first resolution, and it might be expressed in so many words. It is a motion to reject that resolution before the different amendments and different suggestions which gentlemen in the Convention may be prepared to make in regards to the proper shape in which the question should be presented have been brought forward. There are amendments to this resolution which I know have been contemplated; one to insert the words: "If the consent of the Legislature of Virginia be had" - "Resolved, That if the consent of the Legislature of Virginia be had," that then these counties be added. Another amendment, I know has been contemplated; to add at the close of the resolution the same clause, the same conditions, with which the other resolutions embodied in the series terminate. We ought, whether these amendments would improve the resolution or not, have an opportunity of testing the sense of the Convention upon the proper shape before we are "coerced" into a direct vote upon the question, shall the resolution be adopted or not? This is I believe according to all parliamentary usage. I make no complaint of the gentleman from Preston of any want of courtesy in this respect, but I think he has brought forward the matter in an unfortunate shape.

Still, Mr. President, the question must be met, whether the resolution is now in its proper shape or not, upon a motion to reject it - and the motion before the House is nothing else. The question must be met; ought the House, in this stage of its proceedings to reject the resolution? In regard to that question there are two or three considerations to determine the proper effect which the passage of this resolution would have. Does this resolution undertake to determine the annexation of the people of these counties without the consent of the legislature? Certainly not - most assuredly not. By an authority higher than any that rests in this Convention, by the Constitution of the United States itself, our action here must be submitted to the legislature of Virginia for its approval. If that consent is not given, whatever we may do is utterly unavailable. Every resolution we pass, every act we do, here bears impliedly at least within it that great condition. It shall be utterly unavailing unless the consent of the legislature is had. If you insert this in so many terms into the resolution itself and make the resolution express a condition, upon the consent of the legislature of the State of Virginia, you have done nothing more than what is now the precise effect of the resolution as it stands before this body. More than that, the consent of Congress is necessary to give vitality to your action. Your Constitution - your claim for a new State, must go before Congress. If not ratified by that body again, it falls to the ground utterly without effect. And more than this, gentlemen, your action must be submitted to the people for their ratification or rejection. If they think you have done right they will ratify your acts. If they think you have done wrong they will refuse to ratify them and again your action falls to the ground. Every resolution, every act, of this Convention - even the provision which you passed yesterday that all votes of the people shall be by ballot - bears upon its face those conditions, if the consent of the legislature and of the Congress be had, and if the people shall ratify it, just as much as if it were expressed and repeated over and over again in every clause. Here, then gentlemen, this resolution asks you, if the legislature of Virginia shall consent, if the Congress of the United States shall consent, if the people shall ratify your acts - that these five counties shall be included within the territory of the new State. I assent to the argument of the gentleman from Cabell, that if you take territory from old Virginia the consent of the legislature of old Virginia is absolutely necessary. If we were disposed to seize her territory without her consent, the Constitution of the United States interposes its veto: it shall not be done "without the consent of the legislatures of the States concerned as well as of Congress", is the language of that instrument. In fact, gentlemen, what you may do in reference to this resolution is nothing more than a proposition, and all your acts are nothing more than propositions to be submitted to the legislature of the Commonwealth, to be submitted to Congress, and to be submitted to the people themselves.

Upon the question of a usurpation of power upon our part, it strikes me that these are grave and important considerations. It strikes me that the question is, not that which it has been represented as being by many speakers on the other side: shall this body attempt to seize upon this territory or shall this thing be done if the legislature of Virginia consent to it and if the people ratify it?

If we turn, then, to the third section of the Ordinance of August 20, 1861, as the one which bears most directly on this question, we shall find that that provides that certain territory, which unquestionably, as was said by my friend from Wood, includes these counties, might be included in the limits of the new State by this Convention if the people of those counties at a vote to be held on a certain day should consent to such annexation. Throwing aside all technicalities - throwing aside the provision, the universal provision of law which has been here quoted and which is not merely a provision of law, but which is founded on good strong sense, that when the condition is impossible the performance of it is dispensed with - let us take and construe this section fairly. What did the Convention in August, 1861, when they passed that section contemplate? What state of affairs was in contemplation? Unquestionably, gentlemen, and it is upon the face of that resolution, they contemplated that a vote could be taken within these counties. They contemplated a different state of affairs from that which we found to exist. They contemplated that before this period it would have been possible to obtain a full, free and fair expression of opinion in that section of country. But now, by a strict technicality, we are asked to apply that section to a state of affairs which was not in contemplation of the Convention which adopted it. That third section was adopted, contemplating a different state of affairs from the present. We are asked to enforce it in a condition of things entirely different. Is this fair, or is it reasonable? Is it fair to put such a construction on that section, or any other construction on that section, than that if it was possible to get a fair and proper expression of the opinion of the people of these counties it was to have been had?

However, this may be, if the people ratify our acts - or if the Convention prefers it, they may require special ratification by the people of these counties - this difficulty, it strikes me, could not longer be in force.

I would remark in reference to this subject that it is known I was opposed to the formation of a new State, a division of the State of Virginia, at that time - 1 have always been in favor of it - but I was opposed to going into the subject at the time it was; that along with many others who acted with me, I predicted that if the matter was pushed in such hot haste it would be, among other objections, impossible to obtain a full discussion of this matter or a fair expression of the sentiments of the people respecting it; that it was premature. The gentlemen of that convention - very properly, it may be - it is not for me now to impugn the wisdom or the propriety of their acts - told us that long before this period all these difficulties in western Virginia would be removed, and these votes could be taken without difficulty. But we now find a state of things in which we are compelled to apply that ordinance of August 20, 1861, to a state of things which never was contemplated by that convention or at least a majority of it, for to suppose that that convention in inserting the concluding clause of that third section of that ordinance contemplated that it would be impossible to take a vote in these counties, is to suppose that they intended to perpetrate a mockery upon the people there. That resolution contemplates on its very face that when this Convention came to act it would be in such a state of things as would have allowed a previous fair and full expression of public sentiment in that district, and as a rule of construction it is not fair to the convention of August, 1861, to apply the strict terms of their ordinance to a state of things so apparently different from what they contemplated.

I have very few remarks to make upon the propriety of the boundary proposed. That subject was very well discussed by the gentleman from Kanawha this morning, and I concur with him that the people of the Kanawha Valley - aye, and the people of Little Kanawha Valley, too - will find the boundary that is proposed in the first section of that report is essential to their protection. Who will pretend to say what is to be the result of this state of things? Who will pretend to say what is to be the result of the rebellion which is now pervading the South? Can we usurp the attributes of Providence and pretend to foresee the future? I have no doubt myself, with the best lights that we have before us and with my own feeble capacity of seeing ahead - I have no doubt the rebellion must be put down; but it may not be so. And, then, if that by any possibility should be the case, what would be the condition of the new State? Look at the boundary which is proposed by the ordinance of August 20, 1861. Trace it on the map. It is for a great part of the distance a mere air-line, an imaginary line; following no great river course, resting upon no great mountains for a considerable distance. And this is to be the character of the frontier which you are to defend. You want, anyhow, mountain frontier, if the rebellion is put down and the new State is established. You will have on one side of that line - I speak now of what is to be the practical working of the thing, and not of any action which I am expecting the Convention to take on this subject - you will have, practically, at least, on one side of that line a free State and on the other a slave State. The natural course of things will work out that result, inevitably; at least, as well as I can pretend to see, that must be the case; and I would interpose a more distinct boundary than any imaginary line or any air-line between a slave State and a free State. The escaping of slaves across the boundary would be a continual subject of contention. I would have the mountains between us.

With these considerations, gentlemen, I submit the matter, so far as I am concerned.

MR. WILLEY. Mr. President, I find myself, sir, in rather an awkward predicament in reference to this question. My inclinations and desires are at war with the best exercise of my Judgment in relation to the rights which this body possesses - the power of this body in the premises. I fully accord with all that has been said about the expediency and indeed almost necessity of this mountain barrier as the line between the two States; but, sir, J think it is a principle of law, a principle of morals, and especially a principle of Christian morality, that the expediency must always yield to the law and to the right. Nature indicates as plainly as the hand of the Creator could write it His intention that in a separation of the State of Virginia that portion of her territory lying on this side of the Alleghanies, especially in that direction, should belong to West Virginia. Inconvenience immeasurable must result to the residuum of population left on this side of that mountain barrier, if they are left in the old state. It is not worth while to detain you, sir, by reciting the reasons so much better presented than I could present them by the gentleman from Kanawha and by others in respect to the advantages both to the citizens of that section of the State and to ourselves in every respect. It is not worth while to detain the Convention by reciting again those advantages. I accord entire concurrence with the views of gentlemen in that respect. But, sir, I do not accord with the sentiment - and I am sorry to see that it has. a kind of secret lodgment, a kind of unconscious existence in the mind of any member here - that we are dividing the Union; that we are to exclude the inhabitants of that section of country because they are secessionists, and that in time to come they would be troublesome men within the borders of West Virginia. Sir, West Virginia is in the old Ship of State, and my sentiment is to go down all together and undivided if we are to go down at all. Never, sir, shall such a sentiment find lodgment in my heart; it shall lie cold in the grave before I shall yield to a division of this glorious Republic - a division recognizing the Southern Confederacy - a division destroying the last hope of constitutional liberty - a division burying the prospects of human liberty now and forever in a grave so deep that the long arm reaching from future centuries hence will never be able to disinter it.

No, sir, this Union is never to be divided; the Union is to be reestablished. The Constitution is again to assert its legitimate authority all over this land - all over this Virginia of ours, on the summit of the Alleghanies, on the summit of the Blue Ridge, on the ocean beach and on the Ohio shore - everywhere, Virginia, though she may be divided into two State sovereignties, shall acknowledge a higher sovereignty to the Federal Union and the Constitution of the United States, as members still of the same great Constitutional family.

Let us get rid of the idea, then, of arguing this question upon the remotest contingency that we are to sever from eastern Virginia because peradventure, she may be carried into the Southern Confederacy. There is no "Southern Confederacy", and there never will be (Applause in the lobby) No, sir, no! I admit, sir, that darkness has spread over our political horizon for the time; but I can say to such as harbor in their hearts a hankering for the "fleshpots" of that "Egypt" - for it is in the South - I can say to them as the bard said to our Revolutionists:

"Fond impious man, think'st thou yon sanguine cloud,
Raised by thy power, can quench the Orb of Day?

Tomorrow he repairs his golden flood
And glads the nations with redoubled ray."

And I thank God, sir, that the storm is abating, the "sanguine cloud" is disappearing, and the morrow's sun is soon to pour upon this country his full ray of splendor. He is even now throwing his evening parting radiance upon the receding tempest and there is painted to the patriot's high hope the bow of peace and promise, and of covenant for all ages to come of Union, peace, prosperity and Constitutional liberty, never to be broken or to be disturbed.

Let us get rid of this idea, then, that we are acting now as if the Union were to be dissolved. But, sir, I was somewhat carried away, and I ought to beg pardon for departing from the subject particularly under discussion.

Let us look for a moment, then, what it is we have to do. And first, sir, perhaps we had better consider who is to do it. Who are we? What are we? What are the limits, the extent, of our power and our appointment? Whom do we represent? The convention which passed this ordinance last August was a convention of the State of Virginia. That convention concentrated the sovereignty of the people of Virginia, but we do not, sir. Their jurisdiction was limited only by the boundaries of the whole State. The people of Virginia through their delegates in that convention, passed an ordinance for the organization of this body; and the limits and boundaries within which we were to be chosen, and within which by the very terms of the ordinance itself our power was to be confined. What are those limits? Whom do we represent? What portion of the people of Virginia has sent us here? How much of the voice of Virginia was heard or allowed to be heard in the selection of this body? That portion of the people of Virginia residing in the thirty-nine counties - or rather in the forty-one counties including Hampshire and Hardy - which have delegates upon this floor. They allowed a larger border; they gave permission to certain other counties to send delegates here if they saw proper but they have not done so. Let us look then at the Commission - let us look at the ordinance itself - that we may ascertain the extent of our authority. By referring to the second section we find it provided that "All persons qualified to vote within the boundaries aforesaid, and who shall present themselves at the several places of voting within their respective counties, on the fourth Thursday of October next, shall be allowed to vote on the question of the formation of a new State, as hereinbefore proposed; (that is for the thirty-nine counties) and it shall be the duty of the Commissioners conducting the election at the said several places of voting, at the same time to cause polls to be taken for the election of Delegates to a Convention to form a Constitution for the government of the proposed State."

Now, then, this Convention thus organized and thus authorized had distinct limitation assigned it. It was to operate with and within a distinct and well defined territory of designated counties. Then that Convention in another section of the ordinance went on to provide:

"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 also such other counties as lie contiguous to the said boundaries, or to the counties named in this section."

Well, now, sir, if the ordinance had stopped there, perhaps we in the interpretation of this ordinance and our powers in the spirit of it if not regarding the letter, might have extended our operations; but the ordinance did not stop there. The authority of the people as regulated by the people themselves ordained further the condition by which these counties were to be brought into this body and into the proposed new State. That condition is as follows - and I beg you, sir, and the delegates of this Convention to allow your minds to pause upon this important condition.

It is:

"If the said 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."

These counties named, and the counties lying contiguous to them, might be brought into the new State provided they would express their assent and consent by voting upon the proposition laid down in the ordinance, whether they would have a new State or not; and also providing that they would send to this body delegates to assist the other members of the body representing the thirty-nine counties, in making, preparing and presenting back again to their constituents a Constitution for their adoption. Now, sir, they have not done it. The county of Greenbrier is not here; the county of Pocahontas is not here; none of the counties included in this resolution are here - not one of them. None of those counties took a vote on this subject. They have not declared whether they want a new State or not; they have not sent delegates here to make a Constitution to be sent back to their constituents for their adoption or rejection. They have never indicated any desire to be here; they are entirely unrepresented on this floor. Now the question is, does our authority, organized as we have been under this ordinance, give us power to act for them? That is the question, sir. It seems to me, Mr. President, that our power in the premises is limited; that we have a commission; and that that commission recites the extent of our powers, and the area around which our authority can extend; and that when we go beyond that limit we go beyond our authority, transcend our duty and usurp the rights which neither the ordinance of the Convention nor the people whom we propose to include have ever intended or proposed to give to us. It would, sir, in my humble estimation be an usurpation of the rights of the people within those counties under the circumstances. They were presumed to be represented here in the Convention of the 20th of August, 1861. It must be presumed by every fair implication of law, then, that they expressed their opinion, or allowed it to be done - because they had the right to be heard - they then did retain certain limits to this State, with certain contingent rights of extending the limits of it. They have not availed themselves of the liberty under those contingent rights and the authority given to them by the offer of that ordinance. They are not here, sir; and I repeat again, in my humble estimation it would not only be a violation of our authority directly as having special authority, a special commission under which to act, but a usurpation of the rights of that portion of our fellow-citizens. It is true, sir, they are secessionists, but still they are fellow citizens - still they have rights under the law and under our ordinance and under the Constitution of the United States and that of the State.

Now, sir, let us see if that is not a fact. I admit in its full extent, the argument of the gentleman from Ohio who last addressed us, that a great deal of the difficulty in our way may be avoided by the authority which the legislature has in the premises; but let us see if there would be not an usurpation of rights of the people of those counties if we include them arbitrarily, as proposed in the resolution under consideration. We include them arbitrarily, suppose. They may be as much opposed to being included in the new State as they were in favor of the ordinance of secession. I understand that in. almost every one of these counties the vote was strongly in the majority and in many of them almost unanimously, in favor of seceding from the Union. It is fair to presume, therefore, that they do not want to come into the new State of West Virginia now. We have no evidence of any change of sentiment on their part. We do not know how that is, however; but if they are included and the Constitution which we present shall be adopted, what will be the result? They may every one vote against it; and yet they may be compelled to be included within the State of West Virginia. They may be compelled to live under the Constitution which this Convention ordains although they never had any voice in making the Constitution or in making the new State, because there may be a decided majority in the remainder of the State so as to adopt the Constitution although they may vote against it. Is there no hardship here? If they had been here through their delegates they might have so modified it as to make it agreeable to them; but they are not here. The truth is, it is admitted on all hands, they could not get here if they wanted to come. You do them the double injustice of including them in the new State without their consent and also of imposing on them a fundamental law in the ordination of which they had no voice and in the adoption of which their voice, expressed against it, unanimously it may be, was over-ruled by the remaining voters in the new State. Sir, it is a practical and positive usurpation of their rights; and it does not seem to me that under the ordinance we have a right to include them arbitrarily within our limits. I know it has been said we have already yielded the principle and that we must therefore violate the principle again - that we yielded the principle of having now power outside of the thirty-nine, or forty-one counties, when we changed the name of the State. Sir, the name was our own; is to operate only upon and be for the thirty-nine, or forty-one, counties, included in the State. It is a matter over which the people had supreme power; a matter to operate only on the people of the new State; and they are as supreme here today over their own territory as the convention of August last was over the whole state. Why, sir, if you adopt any other principle we might never get rid of the old constitution at all. The people were supreme when they ordained that, and we are supreme today when we set it aside and make a new constitution. We must keep within the limits in which we have the right to exercise our power. We must not impose a name on territory which is not represented on this floor, and included in the commission under which we act. It is very evident, sir, that unless we get along much more rapidly than I suppose we can or will, we will have to extend the time several months beyond that fixed for the presentation of the Constitution for the people to vote on. We have a perfect right to do that, because we present it to the people we represent, within the limits of the territory included in our Commission, and within which our authority is supreme and our control complete; and because the former Convention had no right to limit or prescribe the length of time this Convention should be engaged in framing a Constitution. Like naming the State, that was something with which they properly had nothing to do. They could not be supposed to know how long a time we might require, for it might be longer or it might be shorter from the interposition of circumstances over which neither they nor we could have any control or which neither could anticipate. I think, therefore, sir, there can be no difficulty on this ground. But, sir, it is a very different thing when you travel outside of the record; it is a very different thing when we begin to include territories not represented here, not specified in our commission. I would be glad to include them; but it seems to me the letter of the ordinance is directly in the teeth of our power to do so; and, sir, we profess to be the friends of law and order; we profess to be the opponents of those revolutionary principles that are turning the world upside down; and professing such principles, and acting under them, Mr. President, however much I would desire to enlarge our boundary and include those counties within the limits of the proposed new State, yet I cannot forego the conviction of my understanding that we have no authority to go there. We may very much desire our neighbor's farm, but ups and downs and confusion and anarchy of revolutionary times will not authorize us, by the laws of God, of nature, of nations, or of men, to seize upon it and appropriate it violently.

Cannot we avoid the difficulty and yet secure the advantage? That is the question. I believe, sir, under the rules, when there is an amendment to an amendment, the privilege of amending is exhausted; but it is perfectly in order to indicate what might be inserted in place of an amendment or amendments if they were all voted down. I acknowledge, sir, that the suggestion of the gentleman from Ohio who last addressed us a short time ago, had occurred to my own mind; and it seems to me it suggests the only practicable mode by which we can escape from this difficulty, that is that we will place these counties upon the same hypothesis we have placed these other counties. Now, sir, we must have these counties. I am free to express my entire dissatisfaction with the boundaries as laid down, including the thirty-nine counties. I am free to say it is not the boundary which nature has prescribed for us. Not at all, sir.

And, here suggests to me the true grounds on which our claims for division are to be predicated: not because there is to be a Southern Confederacy; not because the East is full of secessionists. All these schemes will be put down ere long, I trust, and we will all be in the Union again and all at peace. These are not the grounds on which I think the new State presents its just claims to consideration. Not at all, sir. We will be one people again; and so far as our Federal relations are concerned, I trust the day is not far distant when we will all be in harmony again and all in Union acknowledging the Federal Government as of old time and discharging our obligations dutifully as good citizens of the State and Union. But, sir, the claims are geographical in their character. As a State we have not the same identity of interests; our social relations indicate the necessity of a division; our geographical position indicates the necessity for a division; our industrial interests and commercial connections all unite in declaring an absolute necessity for division of the State of Virginia, for our own local convenience and interest; not because we wish to separate from our brethren in the East - not because we are ready to abandon the government - to acknowledge in our hearts that there will be a Southern Confederacy or even the remote contingent possibility of such a thing. I will never acknowledge that, sir. Through the South everywhere and especially in old Virginia, as I know well, there are this day thousands upon thousands of as loyal men, as loyal to that flag, as any whose eye looks upon those stars and stripes at this moment (Referring to the American flag suspended over the President's desk) and with hearts that beat as true; but they are under durance, they are in virtual imprisonment. We do not want to separate from them, then, Mr. President, because they are secessionists; but because we want to dissolve social, political and municipal relations with them; because our convenience as a State and territory, our interests in a commercial, industrial, social and geographical point of view, have for thirty years past been. a standing, irrefutable, everlasting argument that we ought to be divided as a State, though united as a people under one common Federal head. That is the ground of the argument, sir.

Well, sir, upon that argument we ought to have these counties. I acknowledge that. The question arises how are we to get them? The argument will be urged I have no doubt, if we have no authority to transcend the thirty-nine counties represented here, how can we make even a hypothetical proposition to those counties to come in? I acknowledge that we cannot bring them in; that under our authority we have no power to include them, to bring them in. But the gentleman from Ohio has suggested a plan by which they can be brought in: we can ordain a Constitution and respectfully ask the legislature so to legislate on the subject as to present it to them for their suffrages; and if they come under the contingency presented in the other two resolutions following the one we are now discussing, then the legislature when it takes action on this subject, for it must take action on it before it goes to Congress, can fix and define the limits of the State exactly and according as each county shall vote to come in; and the proposition can go up to Congress without any difficulty. I would say to certain gentlemen that if the legislature acts upon it, boundaries can be fixed and defined. We shall then have included in our new State a willing constituency, a willing people, a people that have voted to come in; and by this arrangement the difficulty which I have suggested in regard to an absolute, unconditional taking of these counties in will be avoided.

Why, sir, if it be true, as my friend from Kanawha has abundantly demonstrated, that it is the obvious interest of the people within these counties contained within the resolution we are discussing now, to come into the new State, have not they intelligence enough to see it? And will they not see it? After the terror of arms is removed from them and they are relieved from their present embarrassments - after it shall have been demonstrated by the success of our arms, now soon to ensue, I trust in God - and I trust this thing will be an argument they have never yet had that the power of the Federal Government is supreme in this land, that the power of the Federal Government is to be supreme, over them and over every inch of our soil now and forever - will they not, seeing the utter hopelessness of a Southern Confederacy, the utter futility of their pretensions in this quarter, will they not then, relieved of their present military embarrassments and terrorism operating on them, and relieved too of all the miserable, cruel hopes that they may have indulged as traitors to the country to break it up - will they not see that their interests are with us on this side of the Alleghany mountains and be willing to interpose that barrier as a state line, casting their fortunes with us with whom they have social, commercial and industrial relations, connections and identity of interest? I understand my friend from Kanawha to say that in Greenbrier, at least, he has good reason to believe that if those forces that are there - the terror of arms, were removed, there is an abundant Union sentiment there yet, that it might be revived, and that the old attachment to the Union would come back again and that those hills and valleys would be loved again with loyal hearts. At any rate, sir, I do not see that we have the right to include them within the operation of our power here unconditionally. Let us make a Constitution for them, and let us request the legislature to present it to them and then submit it to the legislature afterwards, if they shall adopt it to fix the limits of the new State which shall be presented to Congress for its action.

Sir, I have hastily passed over a few items that suggested themselves to my mind in regard to this matter. There are many other considerations, no doubt so obvious that they occur to every member's mind, and I will not detain the Convention by referring to them. But I wish before I sit down to express the hope that we will get rid of this unconscious kind of an expression that somehow or other, there is going to be a Southern Confederacy. That cannot be! No, sir, cannot be! (Applause in the lobby and on the floor). And if there was, what would be the result? Why it would not make any difference to the Alleghany Mountains. If Virginia goes south, she goes south - all goes south. If there is to be a Southern Confederacy, I imagine there will be no division of Virginia unless we take it by force and power; and if this has to be employed, my plan is to preserve all of Virginia. And today, so much do I love Virginia - and my friend's, the "fleshpots of Egypt" to the contrary notwithstanding I do love it (Laughter) - I love old Virginia from her seaboard to her panhandle - the sacred dust in which the Father of his country reposes - the shades that throw their umbrage o'er the Sage of Monticello, and the leaves that grow around the tomb of the Father of the Constitution, and the dust that is carried on the breeze unconsciously over the remains of him who gave the impulse to the ball of the American Revolution - from Norfolk, and loyal Accomack and loyal Northampton, now again returning to their allegiance, to Brooke in the upper extreme, and all the valleys and mountains between - I love her all - 1 love her so well that my right arm shall be palsied in death and my heart cease to beat before I will willingly yield one inch, one iota, one grain, of her eastern sand or one leaf of her laurel mountains, to the fell destroyer. All shall be preserved - preserved forever under the stripes and stars. If not one Virginia, at least one country, one Federal Government. And it will be but a multiplication of Virginias if we get a division of the state - another star upon the azure folds of our flag to cheer the eyes of freemen here, now and forever elsewhere throughout the world. Sir, let us divide Virginia, but for God's sake let us not divide the Union nor entertain any sentiments that could be construed in that way.

MR. STUART of Doddridge. Mr. President, I must say for one citizen of West Virginia, if there is to be a Southern Confederacy, my West Virginia will never be in it although the east is - never be connected with their abstractions, sir, with my consent as long as I stand on the soil of West Virginia.

Mr. President, this question has already been elaborately argued, and I do not propose to detain the Convention but a few moments.

The only question of importance before this body is the legal question; and I am sorry, sir, that we have not got to decide the question between us. It seems to me, Mr. President, we have lost sight of who are the contracting parties here. I understand, Mr. President, there are but three contracting parties to this proposition; the people who propose to form a new State, the Legislature of the State of Virginia, and the Congress of the United States. Now, sir, if any action we propose to take here violates any of these Constitutional provisions, then I am willing to vote for the amendment of the gentleman from Preston and go against the resolution. But, sir, I understand that we are the people - that we are the people that propose to form a new State; that our initiatory steps are that we form a Constitution to be submitted to our people; that we then ask the Legislature of Virginia for their consent, and if we get that consent I do not see how on earth we are violating any constitutional provision. The gentleman seems to stick to the ordinance of last August, and says we are going outside of the ordinance that convened us here. That convention as I understand it was a convention of Virginia, and was no party to this contract at all. Is it so? Could they be? I understand it that the Constitution of the United States, which we all profess to be governed by is this: that if every man in the State of Virginia had come up here and said they wanted to divide the State of Virginia, it was still absolutely necessary to get the consent of the legislature to bring ourselves within the purview of the Constitution of Virginia.

Then, Mr. President, if we are the people, and in our initiatory steps we are forming a Constitution to govern the people of West Virginia, and we submit that Constitution to those people and they adopt it, are we going out of the purview and intent and spirit, and letter, even, of the ordinance of August, 1861. The gentleman seems to object to it from the fact that we may include some persons that are not represented on this floor and that they may have a Constitution forced upon them not of their choice or adoption. Now, sir, see how that rule will work.

MR. WILLEY. I perfectly accord with the resolutions, the hypothetical resolutions, to include these or other counties. It is only this resolution - so much of it as proposes unconditionally and forever -

MR. STUART of Doddridge. I understand the gentleman perfectly and that is that in submitting the Constitution, should these people not be represented on this floor, the Constitution may be adopted with the boundary we lay out here and thus forced upon them although they may vote against it. That I understand to be the proposition of the gentleman. Permit me to say that I was going to show you how the principle would work out. We have lived under a constitution for the last ten or twelve years that a majority voted against. My friend helped to make that Constitution which was forced on the people, and voted against it I understand when it was submitted to the people of western Virginia. The people of my county voted against it. Then sir if we are to include nobody but those who vote to adopt the Constitution why we may have a very meager state, indeed. I understand some of the thirty-nine counties are not represented here on account of the rebellion and rebellious feeling in those counties; and if the question was submitted to the people of those counties whether they would have a new state or not they would vote en masse against it, and will vote against our Constitution. Then, sir, will not the same principle work out towards them, and will they not be compelled to live under a Constitution not of their choosing and not of their adoption, made and formed, sir, when they were not represented - still they were forced to live under it? You see that principle will not do.

Then, Mr. President, if in our initiatory steps before ever we reach this second party to this contract, we lay off a boundary and frame a Constitution and submit that Constitution to the people within these proposed boundaries, we then go to the legislature as one of the parties to this contract and the legislature has it in its power to refuse to admit us or to admit us. Now my friend from Cabell said, that where there were parties to a contract one party would not have a. right legally to change or alter that contract without the consent of the remaining parties. Now, sir, I want to ask that gentleman, who are the parties to this contract, who are to be consulted upon this contract? I insist, under the Constitution of the United States, as I before stated, the people who propose to form and adopt a new state and make a Constitution for themselves are one party, the state legislature is another party, and the Congress of the United States is the third party. Then, sirs, if we get the consent of the people of the first part and the consent of the state legislature of the second part, and the consent of Congress of the third part - I ask the gentleman from Cabell, what party's rights do we infringe. They are all consulted. Without a perfect agreement of the three parties we can never get a new state.

Now, I must say that I would be in favor of the hypothetical proposition as indicated by my friend from Ohio and the gentleman from Monongalia. If I had positive assurance that the people of these proposed new counties to be adopted here would have an opportunity of expressing their views and pleasure on being made a part of our State; but unless I have the positive assurance that this thing is to be submitted to them and they go to the polls and vote on it, then, sir, self-preservation is the first law of nature, and I want to include them because I look upon them as vital to the interest of our new State to be included in the proposed boundaries. I have no doubt in my mind if the proposition be submitted to them that there are to be two states. West Virginia and old Virginia, that these people would vote to go in West Virginia; but unless I could have positive assurance that the question could be submitted to them I should be compelled to go for including them anyhow. Can we assume that the opportunity would be afforded them as soon as it would be necessary for them to have it? We want to press them in here because we wish our proposition to go to Congress during its present session. Now who can give us the assurance? Who can stand up here and say that the people of Greenbrier and Monroe and Pocahontas can have an opportunity of voting on this question before you want to submit your Constitution to Congress and ask admission? After you have done this thing and are once received as a state by the Congress of the United States, then, sir, it is too late. You never, never can get these counties; because you cannot get them without the consent of the legislature of old Virginia, which every man on this floor knows never could be got.

Now another proposition just for one moment. My friend from Upshur seemed to object to taking in these counties - whether it is a legitimate argument or not he makes it, as an objection, and it may be the reason that induces the gentleman to vote against the resolution and for the amendment - and that is, that he is opposed to "coercing" these people into a state not of their adoption or their choice, that it always goes to strengthen a government by the consent and agreement of the parties who are governed. Now, my good friend, that is secession doctrine; and carry out the proposition, sir, and we ought to lay down our arms and say to these people in the South: here, go on, you have a right to choose your own government, and govern yourselves, and we will have nothing to do with you. But I go for a little coercion. The principle, I understand, why the general government is now coercing these states is, because they are of vital importance to the remaining portion of this Union. Now, if we can show - and I think it has been shown to this body by my friend from Kanawha and other gentlemen - that it is of vital importance that these counties be attached to our State, why then, sirs, I hope gentlemen on the principle on which our general government is now acting will go in for trying a little coercion even although they do not like it.

Now, that is my view of it. As I promised I would not detain the Convention but a short time, I have merely thrown out these suggestions with a view to correct some false impressions, as I thought, that had been attempted to be forced upon this body.

MR. HALL of Marion. I do not desire to detain the Convention with a speech. I trust that we shall hear from others more competent than myself to debate or to argue the question of the legal right involved in this case. I would make in addition to the suggestions that have already been made a few suggestions only. I believe it is conceded - at least so far as I have heard any expression of opinion on this floor, it is conceded that there is a necessity, an absolute necessity, that the counties within the proposed boundary should be within the State of West Virginia. My friend from Monongalia - for whose opinions on any question, and for whose legal opinions especially, I have that respect that I would scarcely venture to entertain opinions adverse to them, unless I could see or understand that he had misconceived the effect or position of affairs - as I conceive he has done so in this case. Now, I beg to say, in this matter, as I said once before on this floor I am a coercionist. I would not coerce an unwilling people within our borders whose interests I knew were not identified with ours; but I ask now, on what hypothesis is it supposed that any part of the population of these counties will be opposed to the formation of this new State? We find the answer to that question in the drift of the argument of most of the gentlemen who have spoken on this question. They invariably run off as to the question whether a majority of the people are secessionists or are loyal citizens.

Now, I beg to make one proposition which I believe is a sound proposition, legally, morally, and in any form you may take it, and that is this: if every man but myself in the State of Virginia were disloyal and sought to destroy the government of the United States, I have a right under the Constitution of the United States, to invoke the whole government to come and do - What? Why to protect the State of Virginia - even myself. I say in that case I am the whole State of Virginia. Am I not right? I ask if any but the loyal population of this State are any part of the government or have any right to demand anything at the hands of the government. But I ask you if I be the lone loyal citizen if I am not entitled to demand of the Federal Government to come to my aid and sustain me, and to drive out every other inhabitant of the State and to place me in absolute possession of the State of Virginia? (Laughter) its sole lone inhabitant, "lord of all I survey," if you would have it (Laughter). I maintain now that is a sound principle. We are acting on that very principle when we say that we care not what may be the vote of the people of the State upon the question of secession or loyalty. We say that majorities rule within the Constitution, but that the Constitution is made to protect minorities. Well now let us take that, if that be true. Here we have some four or five counties that are upon our side of this natural barrier, to which reference has been frequently made by most of the gentlemen who have spoken upon this question. Now, sir, if there is any element that would be opposed to us there, it is simply the secession element, growing out of the fact that within this territory they have those pleasant resorts called "the springs" to which each summer have come up the South Carolina gentlemen who have sown their seed of poison there. Now, are we to be required to allow them this foothold on this side of the Alleghany mountains, and to forego our real interests and disregard the interests of the loyal people of those counties, because forsooth there are disloyal persons there? And as remarked by some other gentleman who has already spoken upon the question, if you are going to adopt that principle, what are you going to do with many counties already included. We do include them with the right to include within our limits and lines, counties that have no disposition, not a single man of them, forsooth, that would be willing to go with us; and yet we have a perfect right, and they say because of the necessity we must do it - counties that would not send a representative here, that would vote against any constitution we should make, who would vote against everything but his honor, Mr. Davis, whom they dignify with title of President of the Southern Confederacy. Yet we would include them. Now I say if that be true - and that is true - we are acting on that very principle and recognizing it as right. I ask, then, where is the legal objection to recognizing a similar necessity of extending our lines to the top of the Alleghany mountains. It is all one and the same as though that district proposed to be included here were immediately in the center of the territory out of which we propose to make the State of West Virginia. I think there is no doubt of that.

But it is said that the legal objection arises in this particular; that we are limited, that some power that has gone before us has prescribed what we may do and what we may not do. Well now, I beg to suggest this thing on that point: I ask when was there any convention upon this subject that represented more territory than is now represented on this floor? We may say we had a representative from those counties away down about Alexandria. There, I believe was one. They are not on this floor, and it is not proposed to include them within this boundary. But it is said the other convention was a convention of the whole State and we are only a Convention of particular counties. Well now, I submit this thing: suppose we never had any convention at all; suppose we had never called any convention - have not the legislature of the State of Virginia now in session in this city a perfect right and power to do all that they can do under our conventions? We are here to form a constitution. A constitution must be prepared and submitted to Congress before we can get the consent of Congress, one necessary step. The only parties named in the Constitution are the legislature of the State and Congress. Now this is all. We have our conventions because we choose to consult the people. I think I am right about this. If that then be so, there can be - for this is a mere advisory matter; there was no power in the body by whom we are convoked - no power to limit or prescribe what we should or should not do - if that then be so, in what respect should we feel trammeled in our action now? I referred before to the fact that we are as largely represented now as we would have been had we issued a proclamation calling upon all mankind to meet us here - all mankind within the whole State of Virginia. Who else could get here! Those that we have authorized to come have not all got here. Why? We understand and know perfectly well the reason why these counties are not represented here. Why, sir, it has not been very long since some gentlemen who are here now could not have come, here, and the time is even yet that some gentlemen within counties included here are not here; and we know very well the reason why the very counties in reference to which we are now proposing to take action could not be represented here if they would, unless some one had stolen out, as some of the counties now represented here are represented by a very few votes, or by some means that is not exactly a vote at all. I want to know then if that is to be a great overpowering and controlling reason why we shall or shall not do one thing or the other in reference to them. Now it occurs to me when we know what the interest of that people is; when we know the fact - and there is no controversy about that - that the loyal people of these counties whenever they are permitted to speak on the subject at all will be for forming a part of the State of West Virginia - then we are violating no sentiment or rule of propriety whatever. And I am opposed to any provisos in reference to these counties that are now proposed to be included; because of the necessity of including them I maintain we must do it; and if there are disloyal persons there who do not like our company, let them go beyond the lines; we will have enough who will not go to amuse ourselves with anyhow.

If then there is no legal objection, there is no controversy on the other question. It does strike me that it is impossible that we shall be placed in this case under any necessity of violating any legal rule by doing anything that we see cause to do in this matter. Suppose we draw the line with the Blue Ridge and the legislature should consent and take that Constitution and present it to Congress and ask Congress to make a new State of West Virginia, going to the Blue Ridge - I ask is it not competent for Congress to do it? Though we make the Constitution for only ten counties or one county, have not the legislature power over it? Well, it may be asked, then, if the legislature have that power why are we squabbling about it? For the very reason that I desire we avoid the difficulty there that now exists here, the idea that there is some controlling power, something like a construction. The legislature may feel somewhat trammeled; they may be inclined to think that they are bound to act upon the matter without any .modification or change, just as we present it to them; and I suppose they will want to so act; they will consider that this Convention is more directly from the people - that being the people in legal contemplation (it being an assembling of the people in person) they are the party to act, and they will feel inclined to circumscribe their action to what this Convention may do. Therefore it becomes us to do what is necessary to be done. But I trust we are not to draw a line and form a new State with a line that is like an irregular saw-tooth line, running round counties with all sorts of curves, having no natural lines - but to draw it upon what hypothesis? Why simply to say that at the time a certain portion of the citizens of the State of Virginia were enabled to congregate themselves at the city of Wheeling, and at a time when those in rebellion against the Government held other parts, these few persons seized upon the opportunity, and being very impatient they went to work to form themselves into a new State including a few counties, but presuming that because the other persons whose interests they knew were identical with their own, suffered the armies' of the rebellion to remain in and upon their territory for that reason concluded that those other people were unwilling to come with them. Now, is not that the effect of it? Is it not taking a crumb now, not what you want - not what you need, but with a sort of eager hunger seizing a part of what you want before there is a possibility of those who would come here being with you? And then arguing that very impossibility as evidence that they do not want to come with us? Now, it is unjust. There was a time, sir, when this part of the panhandle could have held a convention and formed itself into a new State, and left the rest of us without cooperation; but would that have been kind of them? There was a time when they might have extended the line further and never have taken in half your thirty-nine counties. Because let me say a fact that is known, that this thing commenced at a time when some of the most prominent movers in the matter dare not go to their homes. The thing has been crowded along rapidly; and now it is proposed to exclude these counties because, simply they cannot be here with us. Now is that just? Is it just to any portion of that people? Why it is an admitted fact, a fact that all know, that 'so long as we had any means of having notice from them at all, a large majority of those people were loyal, and whenever they are permitted again to speak and act, they will give evidence of that loyalty to our government; and as there will be no other influence to lead them in any other direction, they will be ready to come with us. And yet by your hasty action, your red tape, your anxiety not to crowd upon them a constitution that they have not helped to make, you will absolutely turn them out, exclude them, cut them off from you so far as drawing the line would make the difference - exclude them by this action altogether. I think it would be unjust - unjust to them, unjust to ourselves, and I cannot conceive upon what hypothesis when we recognize the fact that it is necessary to include them within the boundary, and recognize that other fact that where it is necessary we have the right so to do. I want to know for what reason they are to be excluded? Simply because they happen to be on the border? If the necessity exists it is all the same as if they were in the center, as I before remarked.

And I have this objection to leaving it to a vote of that people: we must necessarily have a dividing line without waiting until that people may be able to act freely and untrammeled on this question; and therefore knowing their position and their interests and our necessities, it is necessary that we cut this red tape.

MR. WILLEY. Will the gentleman allow me a single remark. In regard to defining the line, the legislature have necessarily to define and fix a line unequivocally before application can be made to Congress for admission; and the hypothetical plan proposes, as I understand it, for the legislature to wait until we get the vote from these counties, and then fix the line according as the vote from these counties shall indicate the desire of the people. So I think there will be no difficulty about the want of a fixed line.

MR. HALL of Marion. I do not know, indeed whether Congress would receive us with a sliding border or not.

MR. WILLEY. That is not the idea. The idea is that our legislature fix irrevocably and definitely the line; which they assent to themselves and send on to Congress for its assent; but will not fix that line until they get the votes of that district and include or exclude it as the people there indicate their desire.

MR. HALL of Marion. Well I do not know whether it would be competent for Congress to accept the State composed of thirty- nine counties with a provision to receive or take in the other counties before a vote or not; but I presume they would not do a thing of that sort.

MR. WILLEY. The gentleman does not catch my idea. The gentleman from Marion and I understand each other. We were raised in the same valley up there and of course we have common peculiarities (Laughter). This is the idea I wish to convey: that there can never be any hypothetical proposition made to Congress; that before the proposition goes to Congress, the State must fix the thing definitely, that is to say, they must fix limits which shall either include these hypothetical districts permanently and irrevocably or exclude them. No hypothetical proposition can be, or I think ought to be, sent by the legislature to Congress.

MR. HALL of Marion. I suppose it is contemplated that it will be determined just what the State is to be before we ask Congress that it may be made a State. I do not know that Congress would not have a right to act otherwise but presume Congress would not; and for that very reason that urge the necessity that this matter shall be fixed definitely now; because if the legislature is to be bound by that vote, and that vote is to be taken as early as we would like action should be had on this by Congress, these counties must be excluded, for it is almost reduced to an absolute certainty that there can be no expression of the will of the people within such time. Then to propose to wait for an expression of that people would just be like ours would be Union men down there at Richmond. They were for the Union with an ultimatum to be laid down by Virginia, to be acted upon and accepted and adopted by the States within a time they could scarcely hear we had presented an ultimatum. I think it would amount to nothing. We see here that the members of this Convention from this region of country are anxious that this thing shall be made as early as possible and submitted to Congress that we may have our State in successful operation at the earliest possible time. And I apprehend that there will be no possibility of opportunity for that people to give an expression of their opinion or vote upon this question until the rebellion has been swept entirely out of the State of Virginia. Whenever they have to give back from these points it will be when Virginia throughout is cleared out. Whether that could be in time we do not know. I hope it may be; I believe it will be before very long; but then we know what our speculations have been and how much they amounted to before. We hope and expect it some time; but I cannot say that I either hope or expect that there will be such a movement of our forces as to enable the people who ought to do so, to cooperate with us by the time fixed. There are persons here who did hope and expect they would be at liberty to act with us at this time. Now we see what the fact is. These war horses move very slowly; and we cannot tell what may be the policy of those conducting these affairs, when they will be permitted to act.

Then, as I before remarked, I would not care whether those people desired to come with us now or not - that is whether they gave any expression. We have the right to include them, and the necessity requires that we should; and there is no objection to the rule; and the very fact that we know they cannot give an expression would be our warrant for acting on our knowledge and their real interest and the identity of their interests with our own. I can see no legal objection whatever. I would not be a revolutionist. I believe in doing everything right, and that we should not act merely from a desire to have what we had no right to or rightful means of obtaining. In view of all this matter I trust, upon the mere absence of representatives from these counties on this floor, when it is a fact known to us that they could not be represented here by any means, we will not thus reason, as has been suggested here, that it was a fair inference because they had not complied with the proposition submitted to them by the August convention, they had by their absence from this floor declared that they had no disposition to come with us. Now, sir, that is unfair. It is unjust to themselves'; when we know that there are other reasons and that they could not get here. And I trust that we will not act upon any such hypothesis. Every evidence that we have from that people indicates that whenever they are relieved from the power under which they are held there that they will be with us. As I before remarked our necessity requires that if they are not with us in sentiment, in all events their territory must be with us, though it should lead to the necessity of a very considerable portion or even all of them going to other territory. There will be ample opportunities for shuffling those who have different views and feelings about these things.

Now, I am like my friend from Monongalia, I am not looking to a line here as being a line between the Southern Confederacy and the United States. If I believed there ever was to be a Southern Confederacy, I would not give you ten cents a dozen for States situated as this is. I would not give you the expenses of the sittings of this Convention a single day for your State. Now, I have no such idea; but this thing will exist; there is a feeling in eastern Virginia, in what will be old Virginia when this new State is formed, just as you will find will exist in those cotton States, more or less of a feeling that will not be the kindest for a time; and for that reason we ought to have natural barriers that we may not be led to increase that feeling, that irritation, that will more or less exist along all these lines and borders. And thus it is we want these well defined lines, drawn by nature and including those whose interests are with us; and that we shall not upon a false supposition, upon a basis that we know it will not do to carry out, of excluding counties that are not represented on this floor, but that we will include absolutely those counties that are proposed. If we are not to do that - if we are to leave these counties to determine what course of policy they will take here, then we have a tier of counties beyond that we also propose may become a part and parcel of us, and they will take action and determine to go with us, and then you have Greenbrier and Pocahontas between you and them. I want that we draw a line by natural boundaries, and as I before remarked, I would not be governed even by county lines. I like the suggestion of my friend from Harrison, to follow the natural boundary through a county. I would not be turned aside by any supposed boundary you could make, but follow straight along after the natural boundary and make a respectable line and work right up to that line, and at a point that would include those whose interests are with us and whom it is necessary we should include with us, and nothing further.

We must do one thing: we must act on this. If we do not the legislature can; but if we attempt now to determine that we are limited in our action by the convention of August, and at the same time declaring we are the people in their majesty, then we hand it over to the legislature, telling them, you are an inferior body; you may pass on it according to the information you may receive relative to the wishes of these counties; and thus you send it down to them trammeled to the prejudice of the interests of the whole people. I trust we will do no such thing - that we will go to the natural line.

MR. BROWN of Kanawha. I beg leave of the Convention to say a word or two upon this question of the power of the Convention. I think, sir, it cannot be questioned that this is not a sovereign Convention - that this Convention is a delegated body for a particular purpose, has a special agency to perform - that we are emphatically a body assembled here to propose, not to enact - that we came here delegated by our constituency to frame and propose to the people a constitution, not to make a constitution - that the Constitution when it shall have passed from our hands will be as powerless and as worthless as the paper on which it is written until it is endorsed and ratified and vitality given to it by the voters of the proposed State. Our business is merely to frame and propose a constitution - for what? First to obtain the right of the suffrages of the people, the endorsement of the people; next to obtain the consent of the legislature for mark you we can form no State until we have received the assent of the legislature of Virginia. The very object, then, is to propose something here that they may look upon and act upon. Now when we are proposing a constitution to the people, is it beyond the prescribed limits for us to propose a boundary to the people to whom we are about to submit it? If we are to ascertain and ask the consent of the legislature to this proposed new State - without which we can have no State - is it not proper that when we ask the legislature for their assent, we should at the same time propose to them something definite - that we ask to define the boundaries that we propose this State to be composed of, and ask their consent to it? Why, sir, are we to suppose the legislature of Virginia will be so anxious that they will propose to us a boundary when we do not ask it ourselves? My idea of the true function of this body is that it is to propose a constitution to the legislature, at the same time prescribing the boundary that we desire it to operate upon and ask their assent to it; and if they approve it, they will give it; if not, they will refuse it. But I cannot conceive the legislature will ever undertake to propose to us any boundary unless we ask it. We should fix it here and ask it; and in no other form could we have a definite answer.

But, now sir, as to this territory proposed to be included. It has been said by my friend that he is averse to taking these people against their consent; and so would I be. It is said by another gentleman that the White Sulphur Springs, the Blue and Red and Sweet Sulphur, and a number of other springs, are located in these counties, and that there these delectable gentlemen come up and luxuriate in the summer evenings, and in the shady bowers during the heated days in summer, around these fashionable watering places. Why, sir, are we not to be allowed to go up there and drink out of those fountains of health and breathe the pure air of the mountains ? That is our accustomed place of resort for the summer. The people of our valley go there every summer. Many of our people are owners of property there. The people of Kanawha own largely in those very springs; and it may be very possible and I think very probable, that my colleague in this house, if not now, has been, an owner of stock in the very springs now to be appropriated by others. Why not go then where we have been accustomed to go, and associate with people whose habits and associations we are familiar with? Gentlemen say they will not vote to come in with us. Why, sir, all we ask is that you give them an opportunity. We say if you propose that they shall not be allowed to come into this State at all unless they cast a vote in favor of it next April: that may be an impossibility as it was before. You said they might vote in October last - but how was it possible for them to vote? You sent no army there to remove the force that was trampling them down; and is it to be any better then? Why, sir, we are proposing to take in the county of Monroe and I understand by the papers that Gen. Floyd is quartered in that county and proposes to stay there in winter quarters until next year. You propose to take in the county of Greenbrier and a rebel army is at Greenbrier until the next campaign shall open. And do you expect your armies will be able to advance before next June into that mountain region? When I was there last, the mountains were all white with snow although there was none in the valleys. I say then you are proposing a thing to these people that is impossible. You do not propose it to the secessionists, because you know they will not vote to come in. They abhor the Union. They abhor all those who hold to the Union. Our message is to the Union men who seek and desire to be with us; and we maintain that there are not a few then. If you would take this boundary in and tell the people to vote themselves out if they choose, then the secessionists would have no difficulty in going to the polls and voting themselves out. They could act, but no Union man could vote. You must have the Union armies in that territory before they can express their sentiments; but as long as you fail to do that it is an absolute denial of every privilege of this people unless you adopt this resolution here and take that territory in. If you find afterwards that the Union men are not with us, then you can let them go; but if ever you close this State and leave this territory in the old state, my word for it no matter how anxious they may be, they will never have the opportunity allowed them.

Well, then, to my mind it is only a matter of policy and interest, and feeling towards these people. It is the last, the ultimate opportunity. It is now or never.

MR. LAUCK. I do not wish to inflict a speech on the Convention at this late hour; but I desire to throw out a suggestion. There are grave questions, and many of them, connected with the question now before this body. When this ordinance was passed, sir, there were thirty-nine counties taken within the limits, but at the same time that convention invited divers other counties to meet with them here in deliberation. It is admitted by all that they were physically prohibited from holding their election and from being here to participate in our deliberations. Sir, under these circumstances, is it fair, is it just, that this body would attempt to decide on their interests in their absence? Is it fair, sir, for us to act in the premises; after having invited them to consultation, and having invited them to come and be a part of our State, for this body to take action upon the presumption that they do not wish to be with us ? Sir, as they have been invited to be with us, and participate with us and be a part of West Virginia, I say is it fair, is it just, for us to jump to the conclusion that they do not wish to be with us? No, sir, I take it, sir, the presumption is when it is admitted that they labored under a physical disability to hold their election, that they wish to be here; and it is admitted by many members of this body that there are many loyal citizens within the territory of those counties.

Now, sir, for this body to act in. the premises after having invited these counties - I say we ought to give them an opportunity before we act in the premises to cut them off from all share and lot in this our new State. I therefore under these circumstances will be bound to vote against the resolution now before the house. I do not feel, sir, willing to cut them off from a privilege - for I believe it would be such - to be connected with us. And I believe if the Convention takes this course and excludes these men, thrusts them out of the pale of the new State, leaves them with the rebellious country - I would prefer the Convention would adjourn and give them time, ample time, so that they may be heard in this body. For I fear if we take action on this and the legislature and Congress act on it, the die will be cast, and they will be left in a country uncongenial with their feelings and not with their interests.

With these remarks I again say that I am bound to vote against the amendment of the gentleman from Preston.

MR. POWELL. I move we adjourn.

MR. POMEROY. I think we can vote.

MR. POWELL. If they are ready to vote, I will withdraw the motion.

MR. POMEROY. Let us take the vote.

Several members. Take the vote.

MR WILLEY. Before that is taken I would ask the Chair: suppose that amendment is lost would it then be competent to amend the original amendment by -

THE PRESIDENT. Yes, sir, the Chair so understands it.

MR. STUART of Doddridge. I call for the yeas and nays.

The yeas and nays were ordered and taken and resulted:

YEAS - Messrs. Brooks, Dering, Dille, Hansley, Irvine, Parsons, Powell, Paxton, Trainer, Willey - 10.

NAYS - Messrs. John Hall (President), Brown of Preston, Brown of Kanawha, Brumfield, Battelle, Chapman, Caldwell, Carskadon, Cassady, Dolly, E. B. Hall, Harrison, Hubbs, Hervey, Hagar, Lamb, Lauck, Montague, Mahon, O'Brien, Parker, Pomeroy, Ruffner, Sinsel, Simmons, Stevenson of Wood, B. F. Stewart, Sheets, Soper, G. J. Stuart, Taylor, Van Winkle, Walker, Warder, Wilson - 35.

So the amendment to the amendment was rejected.

THE PRESIDENT. The question recurs upon the amendment of the gentleman from Harrison, to strike out the county of McDowell.

MR. VAN WINKLE. Well, sir, let us have the question.

Several members. "Question!"

The question was taken and the amendment rejected.

MR. WILLEY. Mr. President, I propose to offer an amendment to this, sir, and the Convention giving an indication to adjourn, I move to do so. I could not dispose of it this evening, but I suppose I will be entitled to the floor when it comes up if we adjourn now. I move the Convention adjourns.

MR. BROWN of Kanawha. I would ask the gentleman to offer the amendment, we might be thinking of it.

MR. WILLEY. I intended to move to retain the other two that were stricken out and put all these counties in the third resolution on the same footing. That will be the purport of it.

The Convention then adjourned.

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Chapter Eleven: First Constitutional Convention of West Virginia

A State of Convenience

West Virginia Archives and History