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Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

December 13, 1861

The Convention was opened with prayer by the Rev. Henry C. Sanford, of the M. E. Church.

The minutes of the preceding day were read.

MR. VAN WINKLE. I notice it is stated on the minutes that the gentleman from Monongalia had leave of absence for eight or ten days. That is rather indefinite. I think it had better be made for ten days. It had better be stated ten days.

The Secretary made the correction suggested.

MR. CALDWELL. I hold in my hand a proposition which I desire to offer for the consideration of the Convention, to be taken up hereafter by the Convention. It would necessarily, I think, sir, form a part of the business of the Committee on the Fundamental Provisions. I merely ask that it be laid on the table and printed.

The proposition was read as follows:

No debt whatever shall be contracted by, or on behalf of the State, except to meet casual deficits or failures in revenues, or for expenses not otherwise provided for, but such- debt or debts, direct and contingent, singly or in the aggregate, shall not at any time exceed $3,000,000.

In addition to the above limited power, the State may contract debts to repel invasion, suppress insurrection, defend the State in war, or to pay the State's equitable proportion of the public debt of Virginia existing on the first day of January, 1861.

The general assembly shall never on behalf of the State guarantee or assume the debts of any county, city or town within this State, or any corporation whatever - nor shall the credit of the State be in any manner given, or loaned to, or in aid of any individual, association or corporation whatever - nor shall the State become a joint owner or stockholder in any company or association in this State or elsewhere, formed for any purpose whatever.

MR. VAN WINKLE. That would go, I apprehend, to the Committee on Taxation and Finance.

MR. CALDWELL. I have no objections, sir.

The proposition was accordingly referred to the Committee on Taxation and Finance.

MR. STEVENSON of Wood. I do not see the chairman of the Committee on Education present, yet I would just take leave to present to the Convention - or rather through them to the Committee on Education - a communication from Professor Martin, of Allegheny College, at Meadville, on the subject of education. I do not ask it to be printed. It is already published in the public journals; but I would just call the attention of the members to the fact that it may be difficult to obtain the same communication printed hereafter, and it will be a very important document to be referred to even after this Convention have adjourned. I would suggest to them the propriety of obtaining it in the paper. I do not want it printed. I merely wish to call the attention of the committee and the Convention to it.

MR. STUART of Doddridge. Mr. President: I have a resolution to offer this morning in regard to the boundary question, sir; and I do it representing certain parties from Loudoun and Fairfax who insist that their claims shall be brought before this Convention. The following resolution is offered as an amendment to the report of the Committee on Boundaries. I ask for its adoption.

RESOLVED, That the counties of Loudoun and Fairfax shall also be included in and constitute a part of the State of West Virginia: Provided, a majority of the votes cast in the said counties, on the third Thursday of April, in the year 1862, be in favor of the new State, and also in favor of the Constitution that may then be submitted to them, by this Convention: and provided, further, that the said counties of Loudoun and Fairfax are not to become a part of the new State except the district composed of Jefferson, Berkeley, Morgan, Hampshire, Hardy, Pendleton and Frederick, become a part of the proposed State.

The President stated the question to be on the adoption of the amendment to the report of the Committee on Boundary.

MR. STUART. I would merely say, not to enter into an argument, that there are a good many persons now in our city from the county of Fairfax, and the county of Fairfax is represented in our legislature. They are exceedingly anxious that this thing should be submitted to their people. They say they want to come, and that there is no less than 500 citizens in the county of Fairfax driven into the city of Washington. If we have a new State they are exceedingly anxious, and they want an opportunity of expressing it, to go with us. I hope it will be the pleasure of this Convention to give them the opportunity. We do not propose to take the county unless the district composed of Jefferson, Berkeley, Morgan, Hampshire, Hardy, Pendleton and Frederick be received as part of the State, because then they would be disintegrated from the State of West Virginia. But if this district comes in, then if the counties of Fairfax and Loudoun vote for the adoption of the Constitution to be submitted to them, then we have a continuous boundary which includes the Capital of the United States, or within a stone's throw of it; while if Fairfax county is included in the old State of Virginia, there is within a stone's throw of the Capital - and I presume it will not be looking with any idea of the contingency that a Southern Confederacy will ever prevail; but I say that we should always look to the contingencies that may possibly arise. I do not say that there is even a probability of it, but such a thing might happen, and if it does, why then, sir, the enemy would be within gunshot of our Capital. And I think it would be prudent to include those two counties for our self-protection and for the protection of our Capital. My attention has been called to the City of Alexandria. I have no doubt in the world but what that would be included in the boundaries of the District of Columbia. I understand that it is moved now, that congress and government down there wants it receded again - want it back; and I have no doubt the legislature of Virginia will grant that district the City of Alexandria including the old boundaries of the District of Columbia. And consequently, it is not necessary, it seems to me, for us to take any notice of that at present. I believe the Convention understands all about this matter, the reasons that influence the motion. It is done, I say, at the instance of my friends and of your friends who are representing you here in the state legislature, who are doing everything they can to sustain you, who are voting and will vote to give their consent to the formation of the new State; and they are friends, too, in every particular and in every instance; and they want it done for the relief of, they say, from 500 to 1000 fugitives driven from their homes. And if they ever are permitted to go back, there will be such legislation towards them by eastern Virginia that they cannot remain at their homes unless they be included.

MR. DERING. Mr. President: I shall be constrained to vote against the amendment to the report. It seems to me, sir, that the gentleman from Doddridge is upon a roving expedition to include all the territory around about us. Yet, sir, as I said in the commencement of the discussion on this boundary question, I am opposed to the annexation of a single foot of territory except what is absolutely necessary, as I deem, to our prosperity. Sir, we took in five counties the other day arbitrarily, nolens volens, as the gentleman from Marion says, and included them in our territory. We have gone on from that step and we have taken in five other counties that border on the Baltimore and Ohio Railroad. And now, sir, encouraged by the advances we are making for the annexation of territory, the gentleman from Doddridge asks us to go right down into the very heart of old Virginia and take Fairfax and Loudoun.

Now, Mr. President, this asking for more territory is only increasing, in my estimation, our complications - only tending to increase our embarrassments and to delay the formation, as I believe, of a new State. That will be the effect of it, sir. It seems to me, sir, that it becomes this Convention to pause before they take in these counties; and it seems to me, sir, that the gentleman by asking for these additional counties is endangering, in my opinion, the passage of the whole report. Sir, there must be some place at which we will have to stop; there must be some pause in this addition of territory. Sir, it seems to me that we should not include the counties of Loudoun and Fairfax. Sir, the gentleman wants this Convention to take Mannassas - for I believe it is in the county of Fairfax. I do not presume he wants to embarrass the inauguration of a new State but it seems to me the inevitable effect of including these two counties tends only to embarrassment and delay. All the information we have, sir, goes to prove that it will be difficult to get our new State through Congress and every complication of this kind only increases the embarrassment and delay. Sir, I want nothing to stand in the way of our onward progress towards a new State, and I shall oppose every amendment that will have that effect while, sir, I have the honor of having a seat in this Convention.

MR. BROWN of Kanawha. Mr. President: the motion to include the counties of Loudoun and Fairfax appeals very strongly to my prejudices, and I confess a very strong desire to accomodate those people, and extend to them the right-hand of fellowship; but at the same time it seems to me it is a wide departure from the propriety of the case and that it ought not to be done. We come here to make West Virginia a new State. We profess to be the people of West Virginia. We have assumed the name of West Virginia, and the eastern border of that territory ever has been the Blue Ridge. But having marched up to it in a hypothetical case, to extend our limits and cross beyond it and pillage the territory of the old Dominion - and that too that territory which is about as old as almost any in the limits of the state - a little behind Jamestown - is going a little too far and it will subject us to the condemnation of being a little too grasping.

There is another consideration that moves me. We have undertaken to restore the Government of Virginia - the Loyal Government. If we succeed in the establishment of the new State, of course that Loyal Government must immediately upon the recognition of the new State terminate within its boundaries. The Loyal Government of Virginia, however, is still supposed to be in existence; and if there is any restoration of the Loyal Government for the security and protection of the Loyal men of the State it must continue to exist and extend itself over the residue of the State. Otherwise all the Union men are left at the mercy of a government as hostile against them as is possible. Take away Fairfax and Loudoun and you have left that Loyal Government with not one foot of the territory to stand upon in its dominion. You must leave that territory for it to stand upon as a base of operations, in order that under the influence of the general government it may be restored to the rightful control of the entire soil of the state south of it. If we do not do that, we have the Union men all over east Virginia, who are now silent as the grave, who are beneath the tread of tyranny, ,who are looking wishfully to the progress of the Union cause and for its speedy coming to their relief - without a solitary ray of hope, and they have no other alternative but to yield at once and take part in that rebellious government that is seeking to destroy us all. It seems to me that considerations of regard and fellowship for the Union men there forbid us trampling on one foot of the territory east of the Blue Ridge; and with this view I must vote against the amendment.

MR. STUART of Doddridge. Just one moment, sir, in reply to my friend from Kanawha. He seems to think that we ought to leave the counties of Loudoun and Fairfax as a kind of Union nucleus around which the old state is to be reorganized and brought into the Union. Now, sir, I do not understand that there is a Union man permitted to stand upon the soil of Fairfax and Loudoun; and if he wants a nucleus around which such a government can be gotten up, I understand that Accomac and Northampton are the only counties in the possession of Union men. I sometime since took leave of my friend from Kanawha. But I want to point out to him just a minute further an inconsistency, and that is this: you know how strenuously he was in favor of including Randolph, Mercer, Monroe and Greenbrier from the fact that it was necessary for our protection - necessary for our defense - because it would give us a natural defense that we did not have. Now, the same reasoning, if the gentleman will only look at it, at least as I view it - the very same reasoning that influenced him to urge upon this Convention the adoption of the resolution including those counties, would carry him to the conclusion that we ought to include the counties of Loudoun and Fairfax, because they, sir, are equally necessary for the protection of our Federal Government. Equally!

But I did not intend to enter into an argument but to refer to one remark made by the gentleman from Monongalia (Mr. Dering) and that is that it militates against our chances of getting this new State. Now, look, Mr. President! Remember that there is now 500 men of the county of Fairfax - or maybe 1000 - in the city of Washington and who are appealing to you to come into the new State. Those men have influence, and they are right around the Cabinet at Washington and the Congress; and if you say they shall not have the opportunity to come, they will band together and effect more against our interest than including possibly effects. Now, reflect upon this. Now, mind what I tell you, if you don't see these Union men - fighting for our cause, standing in our legislature to-day - if it don't band those men together against our interest and prospects of getting a new State.

The President stated the question to be on the adoption of the amendment.

MR. PARKER. Mr. President: One moment, no one feels more gratified than I do, Mr. President, that our friends there should recollect and even wish to join us. It has given me great pleasure. What little I could do, if I could do it consistently, I would be glad to do in their behalf. But from the reasons stated by the gentlemen already, it strikes me that I cannot. There is this view, which seems to me important and which we ought to understand fully: whatever territory we take in, of course the State assumes the expenditures for. That is a point, it seems to me that should not be lost sight of, particularly if the policy of the new government is to be to divorce the State from the work of internal improvements. West of the Alleghanies we have very few internal improvements. The state has invested comparatively but little. The internal improvements in the west of the Alleghanies, in the main, are now to be built up. If the new State is to stop contributing to any part, why then of course, it is to devolve on the people of each section. It has got to be done by your children without any aid of the State. Well now, if we take in any sections where the old State of Virginia have largely expended three-fifths in building up all the roads, railroads and the necessary improvements and conveniences which make a country, why what is to be the result? Why the new State has got to pay three-fifths. All living west of Alleghany, which in fact have comparatively no railroads compared with that section, have got to be taxed to pay for these improvements. They do not want any more. We have got to go in in fact and help pay up what they have cost and then we have got to go to work and build up our own, and if the divorce takes place between internal improvements and the State, they are not to help us to contribute one dollar towards it. Whenever we get a railroad here we have got to put our hands into our pockets and get some capital to go in and do it.

The result is we pay the improvements in their country and they reciprocate to us nothing. Now I find the Alexandria, Loudoun and Hampshire road is entirely within these two counties. It runs from Alexandria to Leesburg. The State has expended in stock $841,748; and then the loan besides of $400,000, I think. No, there

is no loan. $841,741 is the state stock subscribed. Now, the other road is the Orange and Alexandria. That goes out towards Manassas Gap, as I understand. Well, that has been $862,316.08 is the stock. The loan to that road is $400,000. Eight and four is twelve. Well, that road is not all in Fairfax. That goes on to Mannassas Gap, and I think on to Richmond. About $70,000 a mile is the general estimate of the cost of these railroads. And whatever there is in Fairfax that cost would fall upon us.

MR. BROWN of Kanawha. My friend from Doddridge seems to think that there is some inconsistency in the course I have pursued arising out of the fact, I suppose, that he and I voted together sometimes and sometimes we have not. I have endeavored, sir, in the support of propositions before the house, and in opposition to them, to pursue a course that I deemed for the best interests of the State and my constituents, and I have pursued the idea of securing the best boundary that I thought possible to the safety and prosperity and permanency of this new State we are forming. I have not succeeded in getting it all precisely as I wanted it. But one policy has been to enable us to have a boundary that really was defensible. Whether in pursuing that idea I have been inconsistent or not is a question I must submit to my constituents and not to the gentleman from Doddridge.

In reply to the argument of the gentleman as to this boundary that is now proposed to be taken, it does seem to me it is at war with all the doctrines and ideas we have both been urging upon this Convention for fixing a mountain barrier between us and what may be, or would be, a hostile state or republic. If we are to take the territory proposed in these two counties, we are departing from that great principle of mountain barriers nature has constructed for the defense of those on either side, and leaving nothing but an air-line between two populous peoples - a line, in a military point of view, that is almost indefensible. Why, the whole State, men, women and children, that we shall form are scarcely equal in numbers to the armies now on that very territory to keep back those that are seeking to over run it. It seems to me that it is the weakest point - that it ruptures every argument he has urged in behalf of the territory we have heretofore included. If we are to undertake the defense of the government of the United States, then indeed we shoulder a Herculean task. I have not been actuated in my course by any such motives. My object has been to obtain a state border that was the most easy of defense and would render us the most secure. While we would expect in every difficulty the government of the United States would be with us to aid us in maintaining that boundary, yet to assume for ourselves the high position of defending the Government of the United States and throwing ourselves by a border between it and the Confederate forces - if such a thing shall be hereafter established - had not entered my mind before. I had not supposed before the gentleman announced it that he had even dreamed of such a proposition.

MR. DERING. I was unfortunately led into an error in supposing that Mannassas was in Fairfax. My friend from Marion who had the map before him told me it lay in Fairfax. It lies in Prince William.

The argument of the gentleman from Doddridge is that there are 500 Union men in Washington who desire to come in. Now, sir, I sympathize with them as much as the gentleman from Doddridge. I sympathize with them deeply; but if our sympathies for Union men are to control us in making a boundary for the new State, where shall we stop ? There are Union men, I have no doubt, in every county of the whole State; and many of them in many of those counties would desire to come with us and help form this new State. Therefore, sir, we must not be controlled by our sympathies but our interests and what is due to the new State. But yesterday, sir, they wanted the Blue Ridge for the line. Now they are for traveling on, and after while, sir, they will give us the whole State of Virginia. Let us not take these pills in broken doses but let the gentleman come up with all the territory he wants at once, and let us know what we are to depend upon in that respect.

MR. HALL of Marion. I desire to add but a word. I confess, sir, I have been an advocate for natural boundaries and still am. There are many considerations that lead me really to desire to include these counties; and many reasons - good reasons, so far as my judgment goes - why we should not include them. There is one fact that I deem a matter of importance to us. If we had a natural boundary between these counties and the counties from which we propose to dissever them, it would be a matter of the very first importance that these counties should be included in and made part of our State. It is the nearest point at which we can reach ocean navigation. The water is deeper in that channel by considerable than it is at Baltimore; and it is much nearer to us. We can reach it through these counties more readily than at any other point. It does occur to me that that would be a consideration that would weigh - ought to weigh - considerable in the scale of importance. I have no doubt at all in my mind that the people of those counties desire to come in, that if they had an opportunity to do so they would vote to be part of our new State. I know that was the sentiment expressed by every one with whom I met during the conflict at Richmond. They were identified with us in our every movement; they stood by us on the question of Union; and were really with us in our movements in looking to the protection of western interests, and they have always been identified with us in interest and in feeling. But whilst I would take some persons in who did not want in with us, I would be bound for the same reason to leave out, under some circumstances, those who wished to go with us. I must confess, sir, that I can see nothing in the argument of my friend from Cabell with reference to the debt we would incur by taking these within our boundary. There are railroads built there at considerable expense, but at the same time they are worth all they cost, and more, too. But suppose we are preparing to divorce ourselves, according to a resolution offered for the consideration of the Convention this morning, it ought not to influence us in our action because the railroad would be of some good to us if we are to take these counties. The railroad that leads from Leesburg, if extended - which, of course, it would be necessary that it should be - would be an improvement that all the people of the entire State would demand and require should be completed; and it would be one of the most important improvements for us - not for them locally, but for us - as forming a line and channel by which we could connect with the deep channel of water there - the shortest and most direct and best point at which we could reach it.

These are considerations. I confess, whilst I have been termed a fillibuster, that there are several reasons why I do not so much favor this proposition, though I feel very much inclined to extend to them the hand of fellowship; and at the same time I am very much inclined to think it will not be for any good at present. I have no objection to including Mannassas Junction. It is about as short a way as we can take to capture Beauregard and his troops, and I would be willing to surround them with our line. I do not see very well how we can include these two counties unless we take Clarke in order to make a straight line, because Clarke will lie right between one of these and the ones we have already proposed to take, and it would stand out, as some one remarked, in reference to another, like a wart, an excresence of the old State, protruding itself right into our territory. However, I shall not move to amend. But these are considerations that are entitled to weight and consideration here. The very fact that by this line of communication with that deep channel of water will give us an opportunity to build up there that that we now have in the city of Baltimore whenever anything may occur that would make it to our interest or make it necessary that we should have a port of our own and be independent. It would be to our interest at any time. That, it occurs to me, is an idea and consideration that should influence us here.

The question on the amendment proposed by Mr. Stuart of Doddridge was taken by ayes and noes, and the amendment was rejected.

MR. SHEETS. I have a resolution here which I desire to offer. It was read by the Secretary as follows:

"RESOLVED, That, inasmuch as the counties of Hampshire and Hardy have complied with the provisions of the June Convention, they be included in the State of West Virginia."

MR. VAN WINKLE. Is that offered as an amendment to the report, sir? He had better just make his motion and withdraw that part of the resolution which states the reason. It is not in form to go into the report as an amendment. It begins with a preamble.

MR. SHEETS. I will state the reason that induces me to offer the resolution. The ordinance calling this Convention provided that a vote should be held in those counties and the sense of the people should be taken as to whether they were in favor of forming part of the proposed new State or not - those two counties, Hampshire and Hardy. The question was submitted to our people. The vote taken was a small one; but a majority of the votes cast at that election - a majority of the voters who cast their votes at that election, were in favor of connection with this State. According to the resolution passed yesterday, we are to come upon the same footing as those who have not taken any vote at all - Morgan, Berkeley, etc. In the counties of Hardy and Hampshire we have taken a vote, and we have declared by that vote that we are in favor of coming into the new State. I consider, sir, that I am not here to represent my own feelings in regard to that matter. I am here representing the wishes of my constituents - those who sent me here; and in justice to those people I consider it my duty to try to have those two counties added to the list of the 44 including the five we annexed the other day; and with this view I offer the resolution that those two counties may be included in the list of the 44, without submitting the question to them again as to whether they are in favor of forming part of the new State or not.

THE PRESIDENT. Will the gentleman accept the amendment suggested by the gentleman from Wood?

MR. VAN WINKLE. I do not suggest any amendment. I said this resolution was not in form to be acted on. If the gentleman wants to amend the report, he himself will have to put his amendment in shape to be acted on. If he wants to offer an independent resolution he must reserve it until the report is disposed of.

Mr. Sheets modified his resolution, which was again read by the Secretary as follows:

"RESOLVED, That the counties of Hampshire and Hardy be included in the State of West Virginia."

MR. DERING. If I understand the gentleman, his motion now is to amend the report?

MR. SHEETS. That was my object - to offer it as an amendment.

MR. VAN WINKLE. If he will make a motion to insert the resolution as the Clerk read it just now in the report, that will answer the purpose.

MR. SHEETS. I accept the suggestions, of course.

MR. CARSKADON. I am sorry to take issue with my colleague on this subject; but I consider it my duty and shall not shrink from it. I do not wish to occupy the attention of this body, being too young to assume to occupy much time before men of age and experience. Neither do I wish to reiterate the argument that I made when I first stated my position as a member from Hampshire. That was that I believed it to be the desire of my constituents, the Union men of Hampshire, to come into the new State, providing the adjoining counties did the same. I am of the same opinion yet; and I rise for the purpose of objecting to the amendment of the gentleman from Hampshire. If we are to be included at any rate without a chance, he will claim that it is not peremptory, that we have complied with the ordinance of August. I do not believe that met the approval of our voting population. A gentleman claimed the other day that that was not a fair expression of the views of the people of Hampshire, and so I think too. We have about 14 precincts in our county. We opened polls at two precincts, and there was less than sixty votes cast at the two precincts. At the precinct at which I was elected - for they did not know at the other that I was a candidate - there was but 39 votes cast, I think. Seventeen were against the division of the state. And, why, will be naturally asked by the Convention. Because they were afraid of this very thing that the gentleman from Hampshire now proposes, that we would be included without a chance to go to the Blue Ridge. That, sir, was the expression of the people of that part of the county that voted for me; therefore, I feel it my duty to oppose the amendment. They were anxious to come in and have expressed a desire to come in the new State. They knew well their interest was with the new State, and so I know and believe it to be; but, sir, they knew it was to the interest of the State, and vastly to their interest, that the adjoining counties should be included, and they were not, if I understand them, willing to come into the new State unless some of the counties east of us came in. They objected to being the border, the tail end, of the new State. Because the Alleghany mountains is the natural line of the new State as proposed in the ordinance of August; because if you don't go further, you have no natural boundary. The people of Hampshire know this to be the fact; therefore they are extremely desirous that the counties beyond should come in. Therefore, I shall object to the amendment under the present circumstances; and if it seems to be the pleasure of the legislature, as I said on yesterday, to include us of Hampshire and Hardy, the circumstances are all before them and it will be for them to decide. Then we know all the circumstances after voting - the action of the adjoining counties; whether it would be wisdom to include the counties of Hampshire and Hardy without the others. And I hope it may be the pleasure of this Convention to give them a chance, to vote, as we voted at but two precincts out of about 14.

MR. SHEETS. Mr. President: I am very sorry, indeed, that my friend should oppose that resolution. I am sorry to have to differ with him on that question. The gentleman says that a majority of his constituents - or those who voted for him to come here as a member of this Convention were in favor of the county coming in and forming a part of the new State if we also include the counties lying East of us. Now, I call upon the gentleman to produce

the evidence that there were any such votes cast in the county of Hampshire. The question was . . .

MR. CARSKADON. I can do it, Mr. President; but I think any such remarks out of order.

MR. SHEETS. I have, sir, before me the ordinance of August last, calling this Convention, and that ordinance provides that polls should be opened in the several counties therein named, and if the majority of the votes cast at the time was in favor of the division of the state and so reported on, that they should elect tickets to represent them in this Convention. My worthy colleague and myself are here representing that people. A majority of the votes cast in that county were in favor of the division of the state and according to that vote we are here to represent the county.

The gentleman alludes to there only being polls opened at two precincts in the county. It was not because there was no Union men in the other part of the county, but it was simply because the polls could not be opened on account of military hostilities. At the precinct at Piedmont there was but very few votes polled and but one against the division of the state; and the gentleman who cast that vote didn't vote for any delegate to go to this Convention - didn't vote to be represented in this Convention; and I hold that any man who cast a vote at that election unless he was in favor of the division of the state had no right to cast votes for delegates to come here to represent him in the Convention. If a majority of the county that cast her vote in October last said she was in favor of a division of the State, I can see no necessity for submitting the question again - the very same question they have once taken a vote upon. I hold we are justly entitled under the ordinance here, having complied with that ordinance, that we are a part of the proposed new State and that we should be included on the same terms as the other counties and the five that were added the other day.

MR. LAMB. Mr. President: it strikes me the whole matter is out of order. The 8th rule is that a question once determined must stand as the judgment of the Convention and shall not be again drawn into debate. Certainly if we did determine anything by the resolution that was adopted yesterday, it was the precise question here presented that Hampshire and Hardy should have an opportunity of coming in if they came in with these other counties; that they should be admitted as a whole. That was the resolution

we adopted yesterday. If the gentleman wants to get at this question it must be by a motion to reconsider that vote and bring up the whole subject again before the Convention. But without reference to any question and with no desire to tie any gentleman down to a strict observance of the rule, I will say that I am fully satisfied that this is the district, if it is to be annexed at all, should be annexed as a whole and not these two counties separately. I do not intend to argue that question again, for it has already been fully discussed and I think directly decided. But there is one question which is raised by the motion and to which I would direct the attention of the Convention. It is said that Hampshire and Hardy have voted under the ordinance of August 20th; that a majority of the votes cast were in favor of the new State; that they have elected delegates to this Convention; that having therefore fully complied with the conditions set forth in the ordinance, they are entitled to admission here. Mr. President, this is not the ordinance of August 20th. The ordinance of August 20th says that if these conditions are complied with, then this Convention may admit them. It doesn't say they shall have a right to be admitted; but the matter is then addressed to the power and discretion of this Convention, whether they shall be admitted or not. Look at the section of that ordinance. It doesn't say the Convention shall; it says the Convention may. That was right and proper. It was no slip of the pen. It was right and proper that the ordinance should be as it is. It was right and proper, and the circumstances under which the application is made shows the propriety of it. The ordinance spoke of the majority of the votes cast. A majority of the votes cast might be but a very small portion of the voters of the county; and therefore it was proper that although a majority of the votes cast on this question might be in favor of the new State, that the matter should be addressed to the discretion of this Convention and not made mandatory and imperative on them, in order that if the majority of the votes cast did not represent a substantial portion of the voters of the county, the Convention might say it is not proper upon that motion to admit the people of that county. It was proper for considerations that it should not be made imperative on this Convention - the very considerations which led the Convention yesterday to decide that if we admitted these two counties, it was expedient that the neighboring counties should come along with them. There were in Hampshire county 16 votes against at Piedmont precinct and 179 votes at the other precinct in favor of the new State, amounting to 195. The voters of that county include two thousand, I have been told, but I cannot state it as a fact - it is merely what I have heard - that of the 179 votes which were cast at New Creek precinct 100 were cast by a company of soldiers stationed there.

MR. CARSKADON. Will the gentleman allow me to make an explanation? I was at New Creek during the whole two days' election. The polls, in consequence of Kelley's arriving there were kept open two days; and if I am not mistaken - of which I have now no doubt - but that I am correct in this assertion - there was not over 39 votes cast of citizens of that vicinity who had a right to vote for delegates for this Convention. The rest were soldiers.

MR. LAMB. Well, that is about the information that I had. Then, gentlemen, this question is addressed - even by the strictest construction that can be put upon the ordinance of August 20th - to your sound discretion; nothing in it imperative upon you. Have you such an indication of the sentiment of Hampshire county as enables you to say that they have come properly within that condition? Or if they have come properly in that condition, it is still for you to say, as you did say yesterday, according to your best judgment, whether it is proper that those counties should be admitted by themselves.

THE PRESIDENT. The gentleman from Ohio having raised the point of order...

MR. LAMB. I am not particular about the point of order.

THE PRESIDENT. Well, the Chair had some doubts himself about the propriety of the motion, but was disposed to give the gentleman from Hampshire and opportunity to test the opinion of the Convention, and now entertains strong doubts whether the vote ought not to be put on the amendment as offered or whether it would be proper to move a reconsideration.

MR. STUART of Doddridge. If I understand it, this question never has been submitted to this Convention, in reference to the admission of Hampshire and Hardy. There has been no resolution offered that has decided the sense of this Convention on this before and I admit that it is now raised by the gentleman from Hampshire. If any gentleman can call my attention to an opportunity to vote on that question, I stand corrected. I have not had the opportunity to give my vote that way. No question has ever brought it up in this form, to include Hardy and Hampshire peremptorily.

But while I am talking to the question of order, let me just remark that I am now undecided. I find the two gentlemen representing the county of Hampshire differing; and let me say to the gentleman from Hardy that my vote will be influenced by whatever his views are on this subject. It is the first time I have been undecided.

MR. DOLLY. Mr. President, I am here to represent Hardy, and my constituents wish to come into the new State. I was sent here to answer for them; and I would wish the vote to be taken according to the amendment.

MR. HERVEY. My recollection coincides with the recollection of the gentleman from Doddridge. The proposition to strike out certain counties - five or six - was before the Convention, leaving out Hampshire and Hardy . . .

MR. STUART of Doddridge. With the conditions attached.

MR. HERVEY. But the proposition now up never was before this Convention. In regard to the vote alluded to by the gentleman from Ohio, I do not see from the last clause of the 3rd section of the Ordinance of August 20th that the soldiers would be prohibited from voting. They are not prohibited. The vote in those counties stands upon a different footing from the vote to be taken in the other counties named. "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 new State, and shall elect delegates to the said Convention, at elections to be held at the time and in the manner herein provided for." Not confined to the votes of one county but to all the votes given. I do not think that that will prejudice. If we are going according to the law and testimony, let us stick to it. If they are not excluded they have a right to vote. However much I might doubt the propriety of their voting, still if they are not excluded, they have a right to vote under the ordinance.

MR. VAN WINKLE. I am very sorry to note that whenever we depart from the rules we are consuming time unnecessarily; and I know of no better way, sir, to economize time than to stick closely to the rules, and I do not believe any of the motions made are going to help it. The rules that govern this house are founded on the experience of centuries, and on a few days experience here it would be hardly wise to change them. I throw that out for general consideration. Now, sir, that this is strictly out of order, as the question has been stated here, I can make apparent to every member. This report was to be taken up and proceeded in section by section and then the whole question was to come up on the adoption of the whole report, when motions to strike out and insert would be in order. We passed from the section, sir, containing these two counties. The Convention had expressed itself not on this precise resolution but on what ought to be done with these counties: and if they did not the opportunity was afforded to the gentlemen while the third resolution was under consideration to offer the present amendment. Substantially, sir, this was defeated; because a motion was made by the gentleman from Doddridge to strike out the whole proviso, leaving not only Hampshire and Hardy but others in the same category to come in absolutely. Well, sir, I do not know how the Chair stated the question, or whether he stated it at all; but the only question before us this morning was on the adoption of the whole report. We not only passed upon or finished the third resolution, but took up the fourth and defeated it and took up the fifth in reference to the application to be made to the legislature to provide for elections, and passed that; that completed the report. Now, there was no other question before us this morning but just: shall this report be adopted as a whole? Then, sir, this having been placed in the same category as motions from the standing committees, a motion to strike out or insert would be in order. But the gentleman moves to add to the report, not to substitute - to make an independent proposition, leaving it, in the first place, in the report that Hardy and Hampshire and these other counties are to vote on a certain day according to the terms of the resolution, and then another that Hardy and Hampshire are to come in anyhow, making the report entirely inconsistent with itself. It is then, sir, - unless the Chair decides that the report was taken up and that there is a proper question before the Convention - it is out of order absolutely. If we were upon the question of the adoption of the report, then if the motion had been in proper form it might have been in order. I think, sir, we had better start again and say the question before the Covention is upon the adoption of the whole report then if the gentleman will move to strike out what is already in the report concerning Hampshire and Hardy and move to insert in place of it what is in his resolution, that would be in order, sir.

THE PRESIDENT. The expression of the President was distinct. Upon the announcement of the fact, the gentleman from Doddridge moved to amend or add thereto. After the disposition of the question on that amendment, the gentleman from Hampshire introduced an amendment which is now up. The Chair had very strong doubts at the time that it was introduced whether it would be in order. The Chair recollected distinctly two things that had occurred in the Convention. One was that while this reviewing was proceeding on this report, the Convention without completing a section would pass over to another and make such amendments ...

MR. VAN WINKLE. If the question is now on the adoption of the whole report, then the gentleman from Hampshire's motion would be this: to strike from the third resolution so much as relates to the counties of Hampshire and Hardy, and to include the counties of Hampshire and Hardy in the first resolution. The effect of that would be to leave the other counties included with them to vote and decide the question for themselves, but to take these in as Greenbrier, Pocahontas, etc. were taken in. If that can be understood to be the question before the house, the Clerk can easily make it right and then we will know what we are doing.

THE PRESIDENT. I may be wrong; but that is my recollection.

MR. HALL of Marion. I have hastily prepared what I propose to offer as a substitute, provided it meets with the views of gentlemen and will not lead to any discussion. I have written it so hastily that I will read it. The proposition is an amendment to and substitute for the motion of the gentleman from Hampshire:

"Provided, also, that though the said district comprised of the counties of Pendleton, Hampshire, Hardy and Morgan, Jefferson, Berkeley and Frederick may not vote to constitute part of the four counties first named" - that is Pendleton, Hampshire, Hardy and Morgan - "Herein shall give a majority of votes at the proposed election in favor of the new State, then that the district composed of the said four counties be included."

I do not know whether it will meet the views of the gentleman or not.

THE PRESIDENT. Does the gentleman from Hampshire accept the amendment?

MR. SHEETS. No, sir. My object simply is to have those two counties stricken out of the third resolution and added to the first.

MR. HALL of Marion. I withdraw it if the gentleman does not accept it.

MR. VAN WINKLE. I would suggest, with all respect to the members of the Convention, that everything that pertains to these two counties has been thoroughly discussed, that the questions that relate to them are thoroughly understood, and that we might take this vote, I think, without more discussion, unless there is something new. We have spent a good deal of time on this.

THE PRESIDENT. The question is on the motion of the gentleman from Hampshire to strike out.

MR. HERVEY. As I understand the form of the motion, it is that they will not be included in this resolution but attached to the list of counties in the first resolution?

MR. SHEETS. Yes, sir.

The Secretary reported the proposed amendment as follows:

"RESOLVED, That the counties of Hampshire and Hardy be stricken out of the third resolution and inserted in the first."

MR. CARSKADON. I wish to be distinctly understood in this matter. On yesterday the Convention fixed this matter as I thought best for the interests of the State and of our county, and it will be with reluctance that I see the thing changed, if it must be so; but I shall bow to the will of the Convention. But I hope it may be the pleasure of gentlemen here, as the thing, I think, was fixed in the most wise and very best shape and in the shape that suited me - it does not my colleague; he has a right to have his opinion - but suited me, and which I thought for the interest of the whole district, therefore I hope these counties will not be stricken out. As I said before, the legislature will have the whole circumstances before them and if they see proper to include Hardy and Hampshire peremptorily then it is within their power. But I see no reason - 1 think no sufficient reason at least - to affect the mind of any member of this Convention, why those counties should not have a chance to vote again. Does any member of this Convention say that less than sixty votes out of 800 or 900 Union votes, to count nothing else, out of a community that sometimes polls between 2200 and 2500, can be called an expression of the people of Hampshire county? If they do I disagree with them.

Therefore I hope it may not be the pleasure of this Convention to strike out Hampshire and Hardy from the resolution.

The question was then taken on the motion of Mr. Sheets to strike out and it was rejected by the following vote:

YEAS - Messrs. John Hall (President), Brown of Kanawha, Chapman, Cassady, Dolly, Hansley, Haymond, Irvine, Montague, O'Brien, Parker, Pomeroy, Ruffner, Simmons, Sheets, Stuart of Doddridge, Walker, Wilson - 18.

NAYS - Messrs. Brown of Preston, Brooks, Brumfield, Gald- well, Carskadon, Dille, Hall of Marion, Harrison, Hubbs, Hervey, Hagar, Lamb, Lauck, Mahon, Parsons, Powell, Paxton, Sinsel, Stevenson of Wood, Stewart of Wirt, Soper, Taylor, Trainer, Van Winkle, Warder - 25.

The question recurred on the adoption of the report.

MR. RUFFNER. I understand, sir, it is in order to offer an amendment to the first resolution, or rather to move a reconsideration of a vote taken to amend that resolution. My motion, sir, is to reinstate the counties of Buchanan and Wise in the first resolution. I shall give but one reason . . .

MR. LAMB. Excuse me for one moment. On what side did the gentleman vote?

MR. VAN WINKLE. Mr. President, I know the gentleman from Ohio does and I do attach some little importance to the order of proceeding a resolution was brought in by the Committee on Business that,

"Every report made by a standing committee shall in its turn, be considered and be open to amendment, section by section; but the vote on the passage of any section or clause shall not be final. The question shall recur on the passage or adoption of the whole report as amended and motions to strike out and insert shall be in order."

If I recollect rightly, sir, the chairman of the committee, the gentleman from Doddridge, when this report was taken up moved that it be considered by that resolution. As chairman of the Committee on Business, sir, I endeavored to explain both the object and operation of that resolution. I said that the Committee on the Order of Business had had under consideration the matter of referring these resolutions to the committee of the whole; that there were disadvantages attending that; and to get the benefit of the committee of the whole this course had been adopted. I have had occasion once or twice during the progress of these debates on the amendments that have been offered to the different resolutions to state to gentlemen that what we were doing was not final and that certain amendments would come in better on the question of the whole report. We are now through the report, section by section - that is, it is now in precisely the situation as if it had been committed to the committee of the whole and that committee had risen and reported to the house. That report would be this that the committee of the whole had had the subject referred to them under consideration and had made the following amendments or alterations. Then the whole question comes right up before the house. Now, sir, we are in that stage of the business as we shall be on every report before the Convention; and it is to be hoped, sir, that when gentlemen have seen the disposition of the house manifested strongly, they will not for factious purposes merely introduce the same amendments already once disposed of. It is now precisely the state of the case that was contemplated by this resolution when a general amendment might come in before the report is finally disposed of. I consider therefore the motion made by the gentleman from Kanawha is in order - that it is not, as the gentleman from Ohio supposes, a reconsideration. But I trust that gentlemen will not consider it necessary to go over the same ground we have gone over.

MR. LAMB. The first question we decided in reference to the report on boundary was how Buchanan and Wise should be disposed of.

That was the very first question. We decided numberless questions since in regard to the matter and we have got through and the question now comes up on the final disposition of the report. We are now going back to begin at the beginning and go over the whole thing again from the start, I suppose. If this motion is to be entertained, we have got back precisely to the starting point; and I suppose from the disposition that is exhibited this morning that we will go through regularly and decide over again what we have decided already. The gentleman from Kanawha, if he voted with the majority upon that question has a perfect right to move a reconsideration. Any member who voted with the majority who has changed his opinion and desires to change his vote has a right to move a reconsideration, but not one who voted the other way. And the reason of the rule is apparent - that unless some member has changed his opinion on the subject it is useless to bring the subject up again for consideration. I do think that under the eighth rule, which says that matters once determined must stand as the judgment of the house. If this rule properly applies anywhere, it properly applies here. This question has certainly been once decided. The judgment of the Convention has been expressed upon it; and it ought not to be brought up again unless it is upon the motion of some member who tells the Convention that he voted wrong before and wants an opportunity to have that matter reconsidered.

MR. BROWN of Kanawha. It seems to me unless the construction given by the gentleman from Wood is the true one in this case, that this rule is a trap and a delusion. We have acted on it with the continual declarations of the gentleman who perhaps more than any other was conversant with this subject, that this action of the house on these propositions separately was not final and that the liberty under the rule would be reserved to every individual to amend the report when it came up for final action. In regard to the argument of the gentleman from Ohio, that it is going over the same ground precisely the second time, I do not conceive that to be correct. It is very possible for a gentleman who voted when we were on the question of striking out these counties from the first section of the report to have voted with that view - with the expectation that perhaps two or three counties that have since been voted in would also be stricken out, and would therefore vote to strike out with that expectation. But it perhaps may be that finding himself disappointed by the inclusion of two or three that he did not want taken in, unless these too were taken in, he may now choose to take in these.

MR. LAMB. I do not deny that Mr. Ruffner if he voted to strike out these counties has a right to have a reconsideration.

MR. BROWN of Kanawha. I will not put it on that ground. I maintain the right he has to make this motion without any consideration. It is a new and distinct proposition by a gentleman who will now vote for it. With the whole action of the Convention before him, showing what counties have been taken in and what excluded, he will be prepared to vote for or against it. I confess it might make a very material difference in a man's vote to know exactly what would be the action of the Convention as to other counties. Now that action has been determined, and you can now vote understandingly.

MR. PAXTON. It appears to me if the views of my colleague should be sustained in the decision of the Chair, it would place us in rather an embarrassing position. The gentleman will recollect probably that yesterday evening I made a motion to amend one of the sections of this report by striking out the date. It was then stated, as has been stated time and again, that this was not final, that at any time in the future when we came to consider the whole report it could be amended in that particular as in every other. Now, I do not suppose that the presumption is that after you have amended in that particular or in any other a motion for reconsideration is necessary. If it should be, it would preclude our own amending or changing anything that we have done. The decision of the Chair yesterday evening was that when the report came up for final action - as it has been declared time and again - that then amendments were in order of any character. And this has been the uniform action of the Convention on the matter up to this time.

THE PRESIDENT. I think the Chair can satisfy the Convention of the propriety of his decision in this case. There is no doubt on the mind of the Chairman as to what has been continually understood during the proceedings upon the report of the committee and upon other committees; and the Chair distinctly recollects that when the question was pending on these two counties they were told that they might be stricken out and inserted in the other resolution.

A Member said: I supposed that was lost. I think I recollect distinctly it was then lost.

THE PRESIDENT (Continuing). On this report a motion could be made to reinstate them with the counties of Monroe, etc. Well, to prevent any misunderstanding hereafter, the Chair is disposed to make the statement more fully. The Chair recollecting when the gentleman from Ohio put his motion last evening as to striking out, told him he could at any time move to effect his object after the report was passed upon first, the various sections. He has no other recollection at present but that; but again the Chair is under the impression that it would not require a motion to reconsider even if it had not these other advantages. There are other considerations connected with these counties then that do not exist now. There was another resolution proposing to place a body of counties adjacent to us within the boundaries of the new State on certain conditions. That resolution has since been divided. Those counties would have been to some extent provided for had that resolution passed. But that resolution has been divided and the precise question that now is raised by the gentleman from Kanawha has never been before the house in the opinion of the Chair. Therefore the Chair would hold the motion of the gentleman from Kanawha in order; would with pleasure give the Convention the opportunity to decide it by appeal if they choose. He may be wrong.

MR. LAMB. I can assure the Chair it will be a very extreme case when I appeal from its decision on a question of order.

MR. VAN WINKLE. Does the Chair decide that the principle involved here - not in the particular case - but after a report from a standing committee has been gone over section by section and the question recurs on the adoption of the report as amended, that then it is still in order for a gentleman to propose to strike out and insert? That is substantially the resolution. That is the decision of the Chair? Well, now, sir, to relieve the gentleman from Ohio from the delicacy he feels, I will appeal from the decision of the Chair and let us have the decision of the Convention upon it, although I am in favor of it.

MR. LAMB. There is no doubt whatever about the question. The simple question was not whether it was in order to move to strike out but whether it was in order to move to reverse the decision that had been had before. These counties, Buchanan and Wise, were inserted in the first resolution. They were stricken out of the first resolution and now the motion again is, not a simple motion to strike out and insert new matter but to reverse, as I supposed, the decision that was made before. The Chair has decided that the motion is in order and there is no use of an appeal.

MR. STUART of Doddridge. Do I understand the appeal as having been taken?

MR. VAN WINKLE. I took it to accommodate the gentleman from Ohio.

MR. LAMB. I raised no question of that sort.

MR. VAN WINKLE. I thought it was as well. I will withdraw it if such is the wish of the Convention. I thought it was just as well to have the opinion of the Convention on it now and then it would not be drawn into question hereafter. I would add the single remark that a permission to strike out and insert - the greater always includes the less - does authorize a motion to strike out simply and insert simply.

MR. RUFFNER. I was going to make a single remark in support of the motion I had made; and I trust those gentlemen who are here taking notes will not put before the public what I say.

In the progress of this debate, sir, and in the consideration of this question of boundary great changes have taken place. A decision of the Convention has enlarged the original boundary considerably on both sides. They have added on the eastern side - at least in the opinion of the Convention - a considerable extent of territory which is' to be added to the territory of the new State. That extension assumes a form which might be called a horn. We have already on our northern border a horn and I think it eminently proper to extend the spinal column to the other extremity; and the names of the two counties to be added are peculiarly appropriate to suggest that caudal extremity I therefore make that motion (Laughter).

MR. PARKER. I would move an amendment. I believe that would be in order. The amendment is, as I now understand it, to add the counties of Buchanan and Wise. Would an amendment to that be in order.


MR. PARKER. I propose as an amendment to that amendment to include so much of the county of Buchanan as lies west and northeast of the Tug Fork of the Sandy river - making the boundary: beginning at the corner of Logan county and running up by the Tug Fork of the Sandy river until it intersects the line of McDowell. Looking upon the map gentlemen will see that there is a small piece of Buchanan in that situation that it would seem ought to come within our bounds. So far as the balance of the two counties is concerned, we have discussed them fully, and my mind is not, from anything that has since transpired on the subject, changed on the subject. But that small piece lying in there it seems to me would make a much better boundary than running from the corner of Logan up by Logan line until it comes to Wyoming and then from Wyoming to McDowell and then back again until it strikes the Tug Fork of the river. Gentlemen will see by referring to the map.

THE PRESIDENT. The Chair would suggest that amendment would hardly be understood in that form; that it had better come in as a substitute.

MR. PARKER. I put it in that form.

MR. LAMB. The gentleman has got the wrong fork of Sandy.

MR. PARKER. Tug Fork, I said.

MR. LAMB. No, sir; not the Tug Fork.

MR. PARKER. I may be wrong, but I think not - with the greatest respect for the gentleman.

MR. LAMB. The Tug Fork is the northern boundary of McDowell.

MR. PARKER. Well, it is upon my map Tug Fork of Sandy, that is from this crossing down to the Ohio river. It runs up through Buchanan, then up into McDowell county, and in McDowell is the head waters of Tug Fork of Sandy.

MR. LAMB. The Tug Fork of Sandy is the boundary between Kentucky and Virginia. Louisa Fork is on my map.

MR. PARKER. Well, I think it is a mistake. I have two maps here.

MR. BROWN of Kanawha. I would suggest that the gentleman from Cabell reserve his proposition; that it is embraced in the other, which if adopted it would then be proper to take action on his proposition.

MR. PARKER. I propose to offer it as a substitute.

MR. HERVEY. I think, sir, the difficulties in the way of the gentleman from Cabell could be obviated by getting another map. I was led into that error myself. I think the gentleman from Ohio has a map that shows more clearly the boundaries of these two counties; and it will be seen from that that Buchanan county does not cross Tug Fork of Sandy at all. If the other map is the correct one, I suppose the amendment would be unnecessary.

MR. PARKER. I have two here - one of 1858 which was made with great care by the authority of the state and I believe that corresponds with the small maps which we have here. If I am in error in that particular, I do not wish now to offer any substitute.

MR. HERVEY. The map which I hold in my hand is of the latest date - 1861, and by that map this stream does not form the boundary line of these two counties. But I cannot say whether the river has changed or the map has changed. But it does seem to me the report of the committee would be much better if it called for these streams - Tug Fork of Sandy and Camp Creek, as marked on my map. I would suggest, however, that the matter be postponed and a little consideration given to the subject. It strikes me from the position of these streams that they would form a much better boundary for the county line.

MR. TRAINER. There seems to be a difference in regard to this river - whether it passes through a part of Buchanan or not. I suggest that you make the river the boundary no difference where it is, in Buchanan or out of it.

MR. POMEROY. What is before the house, Mr. President?

THE PRESIDENT. The question is on the adoption of the amendment offered by the gentleman from Kanawha.

MR. POMEROY. No, sir; we have to take up all that whole question again of adding counties, and we are not ready. I would like that the gentleman from Kanawha would withdraw that motion. My recollection is that these counties were stricken out and inserted with another class; and the motion prevailed to strike them all out. Now there is a motion to bring them in, and if that motion is to be before the house, I desire to be fully heard on that motion, but I hope it will be withdrawn.

MR. RUFFNER. I could not accept that suggestion, having made the motion.

MR. STUART of Doddridge. I wish to draw the attention of the gentleman from Hancock to a certain fact. Under the rule we have adopted, we go through these reports section by section, making many changes. After we pass through them in this way, acting just as in Committee of the Whole, we then look upon the work we have done - the edifice we have built - and it may be necessary that we have an opportunity to correct errors we have fallen into. That avoids the necessity indicated by the gentleman from Wood of going into the Committee of the Whole; and unless we do stick to this rule we will perhaps commit errors here and not have the opportunity of correcting ourselves.

I say as one member of this body, I do not feel disposed to bring up a question that has already been decided. Whether this motion has been having (?) in connection with the whole report passed as amended, I know that my own mind is made up and I think the minds of the Convention perhaps are; but we will have to stick to the rule, sir. If we do not, we will not have that deliberation in our body that is necessary we should have. As I remarked, we have reared an edifice, and if it needs amendments, we ought to have the opportunity of making them.

MR. VAN WINKLE. I venture to say that if any gentleman here would put a motion here that the Convention had decided against, it would have a factious appearance. I consider a motion put in that way could only be for the purpose of creating unnecessary debate, because the inference would be the decision of the Convention would be as it had already been before. But in this case it is free from that objection for these two counties it may be said have not had a fair trial. The committee placed them in the first resolution with the district that was to be admitted absolutely without vote. When the question came up for consideration, the gentleman from Ohio moved to strike them out of the first resolution; and it then was with the understanding that they would be added to the second district, table B. When table B or resolution 2 came up for consideration, I reminded the chairman of the committee of that understanding, and by unanimous consent of the Convention, those counties were placed in the second. The vote was to be taken on them together with Tazewell, Bland, Giles and some others. Well, sir, the question now up is not on the peculiar situation of Buchanan and Wise but on that whole district together and the Convention refuse to admit any of the districts. Now the gentleman from Kanawha simply asks the Convention to consider these two counties separate and reinstate them in their original position, and it may be supposed, sir, that there might be less objection to admit Buchanan and Wise now after this string of counties running along the Alleghanies has been refused; than if all had been taken together. I can imagine such a thing, sir. That while this question is a fair one and is properly made by those who are in favor of their admission, it still cannot require much debate on the mere merits of it. We all understand what is the position of those counties, and the question now presented is a different one

MR. BROWN of Kanawha. Which Fork of Sandy does the gentleman call the Tug Fork.

MR. PARKER. The left hand.

MR. BROWN of Kanawha. Then your object is to exclude the county of McDowell from the first resolution. About four fifths of it is excluded by this.

MR. PARKER. It is to begin at the northeast corner of Logan. We then run up the Tug Fork of Sandy River until that river intersects the McDowell line. Then of course we take that line.

MR. BROWN of Kanawha. I would move to amend the amendment - or the proposition - of the gentleman by beginning at the very point he designates and running with the Cumberland Mountain along the line between Kentucky and Buchanan until you reach the dividing ridge between the two forks of the Sandy, and then follow that dividing ridge until it intersects the great Flat Top Mountain which divides the counties of Tazewell and McDowell. That gives us a mountain barrier instead of a river boundary. The gentleman will observe that the southern boundary of McDowell and Buchanan are the counties of Russell and Tazewell and that boundary line is on the dividing ridge between the waters that flow east and west, or rather those that flow into the Ohio river on the one hand and those that flow into the Tennessee on the other. All the waters of Sandy head in that mountain range and flow from thence - from the back line of McDowell towards the Ohio, in a northerly direction, while the waters on the other side of the ridge run into the Clinch River. My object in making this motion is to secure a mountain instead of a river boundary. That fork of Sandy is a stream of considerable size; but if you take the river you split a neighborhood and you are splitting a county also.

A member suggested that the line was already there.

MR. BROWN of Kanawha. I understand the back line of McDowell is already on a mountain barrier; but the gentleman from Cabell proposes to run up the river, which makes a river boundary instead of a mountain boundary. I propose to make the side line the dividing ridge between the Clinch and Sandy Rivers. We all know that there are no two rivers that have not a divide between them.

MR. VAN WINKLE. There seems to be some difference in maps and differences of opinion about these lines. We all know that to Harpers Ferry and would give us a very respectable line of boundary. With a view to meet what seemed to be the wishes of those counties it occurred to me it would meet their object and it would be what some of the counties would have a right to ask. I therefore offer that as an amendment. That is, to insert at the end of the 26th line, the following:

"But if a majority of the votes in the said counties of Pendleton, Hampshire, Hardy, Morgan, Jefferson, Berkeley and Frederick be not in favor of forming a part of the new State, but a majority of the votes in the counties of Pendleton, Hampshire, Hardy and Morgan be in favor of forming part of the new State, then that the four last named counties be included."

Some of them propose that we should add to it the counties of Berkeley and Jefferson, and that would include all through which the railroad passes. I had only been providing for a tier.

MR. LAMB. Better take them all in.

MR. STEVENSON of Wood. That only leaves one out.

MR. HALL of Marion. This meets the object I had in view.

MR. PRESIDENT. Where does the gentleman propose to have his amendment come in?

MR. HALL of Marion. It has reference to the third resolution.

MR. VAN WINKLE. Might put it at the end. The Committee on Revision have to rearrange it.

MR. HALL of Marion. It would come by just adding it to the end of the section.

The Clerk reported it as follows:

"But if a majority of the votes in the said counties of Pendleton, Hardy, Hampshire, Morgan, Jefferson, Berkeley, and Frederick be not in favor of forming part of said new State, but the majority of the votes in the counties of Pendleton, Hardy, Hampshire and Morgan be in favor of forming part of said new State, then that said last named counties be included."

The amendment was adopted.

MR. STEVENSON of Wood. Mr. President, there is one other matter here that I would like to have amended, although I am precluded by the rules from offering an amendment, or offering a reconsideration. But I will state in a single word, almost, sir, the might defeat us in this project, while we, at the same time would have a majority of the votes in the district. Three counties might give an overwhelming majority in favor of coming in and four might give a majority against and that would keep them out. Well, now, if we strike that out, then we have the benefit of the whole counties - the majority in the three overcoming the majority against it in the four and thus bringing the district in. It would then read concluding in this way: "Also be included in and constitute part of the proposed new State: provided, a majority of the votes cast within the said district at elections to be held for the purpose on the third Thursday in April in the year 1862 are in favor of the adoption of this Constitution."

The question was taken on Mr. Sinsel's proposed amendment and it was rejected.

The question recurring on the adoption of the entire report, Mr. Brown of Preston demanded the yeas and nays.

Mr. Paxton called for the reading of the report as amended.

The report as full amended was read by the secretary in full.

MR. POMEROY. No doubt the gentleman from Marion intended to add a majority of the counties. That only said a majority of the said vote.

MR. HALL of Marion. I did not, because there were four of them.

The roll was then called and the report adopted by the following vote:

YEAS - Messrs. John Hall (President), Chapman, Caldwell, Carskadon, Cassady, Dering, Dolly, Hall of Marion, Haymond, Hubbs, Hervey, Hagar, Irvine, Lamb, Lauck, Montague, Mahon, O'Brien, Parker, Ruffner, Sinsel, Simmons, Stevenson of Wood, Stewart of Wirt, Sheets, Soper, Stuart of Doddridge, Trainer, Van Winkle, Walker, Warder, Wilson - 32.

NAYS - Messrs. Brown of Preston, Brooks, Brumfield, Dille, Hansley, Harrison, Parsons, Powell, Paxton, Pomeroy, Taylor - 11.

MR. VAN WINKLE. Mr. President, it has occured to me since this report was made that as this is a division of the state it would be necessary that the boundary should be set forth in the body of the Constitution; and it will also be necessary, perhaps, to describe in some way the Ohio boundary, in order that we yield nothing there. The ordinance establishing Kentucky, I think, - whether it was anterior to the ordinance erecting the Northwestern Territory or not I do not know - it ceded the territory lying to the northwest of the Ohio river. Under that a claim is made, while the jurisdictions for some purposes are concurrent, to the far bank of the Ohio as the territory of Virginia, at this time by which, of course all the islands pertain to Virginia. If the river was made the boundary, then we take the middle of the channel, and that in most cases would throw the islands to the other side. It may be remembered that this question was before the general court while that court existed and the case arose from the apprehension of some abolitionists on the Ohio side of the river opposite my county. The court was then composed of twenty-one judges I believe. It turned out, sir, that there were three opinions in the court. One went for high water mark; one for running water mark; and the third for low water mark; and as there was not a majority for either, there could be no decision. It was a very singular case, and they had to admit the parties to bail and let them go. Still, the claim is to the other side of the river, and it would be proper for consideration whether we should not in the language in which the old ordinance is couched repeat the claim in this Constitution. I merely mention these things in connection with the motion I am about to make, and that is:

RESOLVED, That the resolutions reported to the committee on the boundary, as passed by the Convention, be recommitted to the said committee, with instructions to report a provision to be inserted in the Constitution embracing the substance of said resolutions and fully defining the boundaries of the proposed new State.

I think, sir, that would be the best way to meet the case.

The motion was agreed to.

Report on Fundamental and General Provisions.

MR. VAN WINKLE. Well, sir, I now move that we take up and proceed further with the report on Fundamental and General Provisions, and that the same be the order of the day until it is completed. That is, the final report. It will not exclude gentlemen from time in the morning to offer propositions and so on if they have any.

The motion was agreed to.

THE PRESIDENT. The question is on the adoption of the 7th section, as amended.

MR. LAMB. I move its adoption.

Several members called for the reading of it.

The Secretary read it as follows:

"In all elections by the people, the mode of voting shall be by ballot."

MR. SOPER. I wish to add to that section the following:

"Except for such local officers as may by law be directed to be otherwise chosen."

I have been familiar with the practice of voting by ballot and have seen some of the inconveniences arising from it. It is to avoid such, sir, that I have offered this addition to the section intended to be applicable more particularly to township and district officers.

Take, for instance, the overseers or surveyors of your highways - your township will be divided into perhaps 15 or 20 districts from which an overseer will have to be chosen. Now, sir, that is an office that will require a large number of names and a good deal of time to be spent in canvassing the vote. But is generally done in this way: one of the inspectors of election would give notice to the people what was about to be done and they would be chosen by motion.

Again, sir, if we introduce the common-school system, which I believe every gentleman here intends, our districts will have to be laid off into school districts probably a mile or two miles square. Every school district would have to have its officers. There will be trustees, school district clerk and probably a collector. Now if they have got to resort to the ballot, it will be attended with inconvenience and there is no benefit to be derived from it. People meet in the school-house and talk this matter over, motion is made and the officers are chosen. Again, when this question was up some gentlemen objected to the ballot in consequence of fraud. There have been frauds, sir, in the system; and one means of guarding against those frauds has been to have a particular kind of ballot box to receive the ballots. Now, sir, these boxes are to be taken out through all the districts. It will be attended with a good deal of inconvenience, and no benefit can result from it.

For these reasons, sir, I have seen fit to deem it necessary to offer the qualification to the section as first adopted.

MR. STEVENSON of Wood. I was going to ask, Mr. President, if we are certain we have the section as amended. I think the amendment offered by the gentleman from Hancock was a substitute for this.

The Secretary stated that it was offered as an amendment: to strike out all the words after "in all." The section as it would read if the amendment offered by Mr. Soper were adopted would be:

"In all elections by the people, the mode of voting shall be by ballot, except for such local officers as may by law be directed to be otherwise chosen."

MR. VAN WINKLE. I would suggest to the mover of the amendment whether his object would not be attained by reinserting the words "state and county"? - "In all state and county elections by the people, the mode of voting shall be by ballot."

MR. SOPER. I had thought in the first place of putting it "in all township elections."

MR. VAN WINKLE. We have not acted on the township yet.

MR. SOPER. I know; and for that reason I put it "local."

MR. VAN WINKLE. "In all state and county" - make those two positively by ballot.

MR. SOPER. Very well, sir, that will do.

MR. DERING. That would not embrace district elections, would it, for constables, magistrates, etc.?

MR. VAN WINKLE. That is what the gentleman proposes to leave out, sir, and it is for the Convention to decide whether they will or not.

MR. PARKER. It seems to be in doubt whether it should embrace Presidential and Congressional. "State and county" - is that confined to officers purely state, leaving out the election of Federal officers?

MR. VAN WINKLE. We are here at a loss from a circumstance that we cannot obviate at present but which may be obviated before long. There has been as yet no report from the Committee on County Organization. No report from the Judiciary Committee. We do not know what provision is to be made - whether a constable is to be a county officer or a township officer. I therefore suggest, sir, that we pass by this section for the present. When we have gone through this present report of the committee, I shall necessarily ask to let it lie on the table before taking a vote on the whole until the balance of the report is made. By that time it is probable reports from other committees will be in and be acted on, and then in the final adoption these corrections can be made.

I therefore ask that by general consent this section be passed by for the present.

MR. SOPER. I will consent to pass by but I intended my motion to be applicable to the township and district officers, meaning county overseers of the poor and the various officers whatever they may be.

Mr. Van Winkle's proposition to pass by the section for the present was put as a motion and agreed to.

The question recurring upon the 8th section of the report, the Secretary reported it as follows:

Sec. 8. No voter during the continuance of an election at which he is entitled to vote, or during the time necessary and convenient for going to and returning from the same, shall be subject to arrest upon civil process; or be liable to attend any court or judicial proceeding as suitor, juror or witness; or to work upon the public roads; or, except in time of war or public danger, to render military service.

MR. VAN WINKLE. This is about what is in the Constitution of Virginia. There is one addition. The old one reads: "or be liable to attend any court as suitor, juror or witness." This adds "judicial proceeding" - intended to cover the taking of testimony.

Mr. Van Winkle read the corresponding provision in the Constitution of Virginia and said:

That leaves the voter liable to perform military service during the time necessary to go and return. It is probably an oversight there. He has the same privileges of exemption from military service during the time he is going and returning home as while he is at the election. That is the way it obviously ought to be made. Also that says time necessary. This adds and convenient. Now our polls close at sundown and if a man starts off he could get to the distant parts of his county by midnight. This would imply that he might wait until he gets his breakfast next morning and be protected during that time. They are verbal corrections and I think make the thing more explicit and better understood and are not unimportant.

The section was put to vote and was adopted.

The 9th section was reported by the Secretary as follows:

Sec. 9. All citizens entitled to vote, and no other persons, may be elected or appointed to any state, county, or municipal office, but the governor, lieutenant governor, attorney general, judges and senators must at the beginning of their terms of service, have respectively attained the age of twenty-five years and have been a citizen of the State for five years next proceeding, or at the time of the adoption of this Constitution.

MR. VAN WINKLE. I would state again, as chairman of the committee, that this is an attempt to embrace in one single provision, in one article and section of the Constitution, what is now scattered through several articles and sections. There is a provision where you speak of the executive and legislators, a provision about age and so on. This reduces them all to one; and I do not know but they may require a greater age for the governor, but otherwise they require seven years residence instead of five. The United States Constitution requires seven years citizenship for a member of the lower house and nine years for the senate. It strikes me for the purposes here he must have been a citizen of the State for the five years next preceding. They must, of course, be citizens of the United States and citizens of this State, which implies that they have been citizens for five years next preceding. I think the time is long enough.

MR. LAMB. I would suggest a difficulty that may arise out of the general terms in which this is expressed. As this is here expressed, any of the citizens entitled to vote could be elected a member of the house of delegates. Now, it is very probable the legislative committee may report to the Convention that the party should be entitled to vote in the county from which he is chosen. I take it if it rests upon this clause alone, a citizen entitled to vote in Kanawha county could be elected to the house of delegates from Ohio county and the reverse.

If that is the intention of the committee, all right. But the legislative committee may perhaps report that they ought to be entitled to vote in the county from which they are elected - members of the house of delegates - and that senators ought to be entitled to vote in the district from which they are chosen.

I want merely to direct the attention of the Convention to the question that may be involved in the general phraseology which is used here.

MR. PARKER. As to the provision requiring the governor, lieutenant governor, attorney general and judges to be residents for five years to be eligible, I notice that they vary in different states; some require for these offices a longer time and some a shorter time. It strikes me the time set here is reasonable. Of course for these high offices they should be resident in the state long enough to understand its peculiar interests and its laws; but when we come to senators I do not see how it applies. I see that for a member of the house of delegates a year's residence is all that is required. I see also by the present Constitution of Virginia, if I am not mistaken - 1 was looking at it this forenoon - the same residence is required for a senator as for a delegate. There is no distinction whatever. It is two years. I think I am right. There is no distinction between a senator and a delegate to the house. I do not see why there should be that difference. The senate has a little more dignity we know; but why a person to be qualified to be elected to that house should require a five years' residence and to the lower house of our legislature but one year - I do not see any reason on it. In looking at the provisions in many of the states, I see the same time is required for the house as for the senate. I like to see the judges and governor taken from old residents, but if we are going to open our new State to immigration, why we should be liberal to all classes. It seems to me that this so far as senators are concerned is going backwards instead of forwards. It is making a five years' residence when in 1850 at Richmond they made it two for a senator. No more than for a delegate. They must be a legal voter at elections, two years in the State and one in the county. That made them eligible to either house of the general assembly. I should therefore move, Mr. President, to amend by striking out the word "senators" in the fourth line of the Resolution.

MR. LAMB. For the information of the Convention I will read the provision in the present Constitution: "Any person may be elected senator who at the time of election has attained the age of 25 years or is actually a resident within the district and qualified to vote for members of the general assembly according to this Constitution." Any person may be elected a member of the house who at the time of election has attained the age of 21 and is actually a resident in the county, city, town or election district, and qualified to vote for members of the general assembly according to the Constitution. The qualification to vote for members of the general assembly according to the Constitution requires a residence of two years in the State and twelve months in the county, city or town where he offers to vote. I move, Mr. President, we pass by the ninth section for the present to allow us to think a little more closely on these matters.

MR. CALDWELL. Before any action is taken on that motion, sir, I call the attention to the chairman of the committee to the phraseology of the latter part of this section. This matter, sir, was before the Committee on the Executive Department and it occurred to myself as well as other members of that committee that in view of the fact that the State of West Virginia is not in existence as yet, sir, and will not be until we are recognized by Congress and that the date of our existence will commence then, that no one will be eligible to these several offices until five years after the expiration of that period. Now, sir, to obviate this difficulty the Committee on the Executive Department used something like this "who have been citizens of any of the counties forming a part of this State five years next preceding or at the time of the adoption of the Constitution."

MR. VAN WINKLE. There's a word or two left out. It might read: "Who have been citizens of the State for five years next preceding or were so at the time of the adoption of the Constitution." The Convention will introduce those words by general consent, I suppose.

MR. POMEROY. I hope the motion will prevail that we will pass by. I hope we will just pass by for the present. When this matter comes up I would like to say something.

The motion to pass by the ninth section for the present was agreed to.

The Secretary reported section ten as follows:

Sec. 10. Every person elected or appointed to any office or trust, civil or military, shall, before proceeding to exercise the authority or discharge the duties of the same, make oath or affirmation that he will support the Constitution of the United States and the Constitution of this State; and every citizen of this State may in time of war, insurrection and public danger, be required by law to make oath or affirmation, upon pain of suspension of his right of voting and holding office under this Constitution.

MR. VAN WINKLE. I would suggest a division of the question on the first and second clauses of this. From the beginning down to the word "State" where it occurs in the fifth line is the old provision. The latter part is a new provision and may induce some discussion. I ask that the vote may be taken on the first clause, and I presume there will be no objection, and then on the second.

MR. HERVEY. I move to add to the words "To support the Constitution of the United States and of this State" the oath of office required.

MR. VAN WINKLE. That will be required, I suppose, by the legislature. I do not know that it is necessary here. It can be put in though. If it is' not, I apprehend it would not preclude the legislature from requiring that oath. I do not think the Constitution is exactly the place for that. I make no objection to it, however, if gentlemen insist on it. It is better as it is. This is providing what is considered as a fundamental thing. It is to require this oath to the Constitution of the United States as well as to the State. By the very terms of the Constitution of the United States all state officers are bound by it; and although we have had these repeated examples of perjury by men in high places in violating that official oath, yet I think it had better be retained. If gentlemen think there is anything here to prevent the legislature from prescribing the oath of fidelity, a clause had better be inserted. You might say "in addition to such oaths as shall be prescribed by law" or something of the kind. Yet I do not think it necessary.

MR. HERVEY. I have no particular desire to press my motion, but it would occupy but very little paper. I withdraw it.

The Chair put Mr. Van Winkle's motion to divide the question, and it was agreed to, and the first clause was thereupon adopted.

MR. VAN WINKLE. This second clause is a new one, and is particularly drawn from the necessities of the case as they seem to be existing around us. They are perhaps even at this time requiring this oath from the various officers, and some propositions I have seen there and in the previous convention have been making an ex post facto law. It is an extraordinary thing, it is true, for the legislature to require every citizen to take an oath of allegiance. It is done, no doubt, in other countries. It is a common thing in them under certain circumstances. But this does not propose to vest the legislature with power to make this a permanent law; but from our recent experience, it is believed there are circumstances when such a clause ought to be there. It entitles the legislature in time of war or insurrection and public danger only to require the like oath or affirmation to be taken by every citizen of the State. I apprehend if such a law had been enforced in the early part of this rebellion we would have been able to discriminate very soon between friends and enemies; and we would by the subsequent clause to which I shall advert presently have been able to reach them.

Now, sir, the penalty of disfranchisement - the deprivation of the most important rights of the citizen - is reserved for this grave offense. For certainly it is a grave offense to refuse when required by public authority in time of war to come and make an open profession before his God and his country of his allegiance to the State. It is punished by deprivation of the right of voting and holding office. So that a person who under those circumstances, whether a foreign or domestic enemy is on the soil, refuses to pledge himself in that solemn way to uphold the Constitution of the United States and of his own state, will be punished by this deprivation. It will have this effect. If he is in office, his office ceases instantly by the refusal. If he is out of office, he will not have the power to put a man there who is like himself. In such time, sir, the right of voting will be confined to those citizens who retain their allegiance to their country and to the State, which is a part of the country.

I therefore think, sir, that while this is a novel provision - And I am not aware that such a provision has been introduced into any of the states - yet that there are abundant reasons growing out of our recent experience commending this to us, because the necessity has shown itself, and which cannot be construed as invading private rights in any respect - cannot be construed as harsh or as requiring of a citizen more than his' plain duty requires of him. Nor do I think that it can be considered that the punishment which is affixed to it is any too severe for the occasion. It is, sir, not upon the pain of having this right taken away from him forever; it is not that he is to find no place for repentance; it is not that he may have no benefit from returning to his allegiance, but upon pain of suspension of this right by law. The law will fix the time and circumstances during which it shall continue. In this form, sir, I think while the Convention will acknowledge that some such provision is highly necessary, they will acknowledge that under the circumstances it is intended to reach, this is certainly unobjectionable in itself.

MR. CALDWELL. I do not like the word "may," sir, in this section so well as the word "shall." What I mean, sir, is that those who offer to vote shall be required instead of using the word may be required.

MR. VAN WINKLE. It says that they may be required by law. The legislature is to judge of the necessity of putting this test. The law may be made as imperative that they shall as the legislature pleases. But it is not to be a standing provision. The legislature is to judge when the necessity for enforcing this provision arises. While up, sir, I will just state what I have just had my attention called to. It reads "In time of war, insurrection and public danger." It should read "or" as in the following section.

MR. CALDWELL. I do not insist on the amendment.

The question was then taken on the second clause of the tenth section and it was adopted.

MR. VAN WINKLE. The next section, sir, is a sort of omnium gatherum and contains several provisions. But from the suggestions of several gentlemen I propose to move that they be referred back to the Committee with a view of extending it. It is thought that while the United States Constitution confers no other power but what is expressly granted, yet when legislative power is conferred here in a state constitution it carries the legislative power that is not expressly withheld. That has induced me to ask that this may be referred back to the committee in order that they may consider whether they will not report additional provisions, in which case it may have to be subdivided into other sections. I will therefore ask that the eleventh section may be referred back to the committee.

The motion was agreed to.

The Secretary reported section 12 as follows:

Sec. 12. The legislative, executive and judicial department of the government shall be separate and distinct. Neither shall exercise the powers properly belonging to either of the others. No person shall be invested with, or exercise the powers of more than one of them at the same time.

MR. VAN WINKLE. This, sir, is about what is in our Bill of Rights except that that says "ought." This is made imperative - made the rule.

Now, sir, notwithstanding we had it in the bill of rights and, I believe, in the constitution also but in that form that it never amounted to anything as a rule of government except to tell people it ought not to be so, the constitution itself provided for the exercise of all three of these powers by one set of officers. Justices of the peace while sitting as a county court were invested with all three, sir. They sat as a court of justice - which made them judiciary. They arranged the fiscal and other matters of the county - which made them legislative; and they directed many other matters connected with the county - which made them administrative. If not in fact executive. The principle is most certainly a good one. It is in the Constitution of the United States as a fundamental principle that the three ought to be kept distinct and adding that neither shall exercise the powers properly belonging to the others there shall be no encouragement of one to the detriment of another and no person shall be vested with the exercise of the powers of more than one at a time. That, sir, in plain language, means that a justice shall not be a member of the legislature. I think if he wants to go very bad he had better resign his justiceship. I mentioned that one case peculiarly legislative. That has been constantly the thing, that a man without resigning the judicial office may go and act in a legislative capacity. I think the rule is a good one and that it ought to be practically applied and carried out to the full extent. A man, therefore, who holds an office in the executive cannot at the same time hold one in the legislative department, nor can he act as justice or judge or prosecuting attorney. That is the intention of the committee; to keep these three departments of the government entirely distinct. Not merely to keep one department from exercising the powers of the other - a court from assuming executive functions, the legislature from attempting to encroach on the proper duties of the executive - but that no person who holds an office in one of these departments shall assume to hold an office in any other of these departments.

MR. CALDWELL. I only wish to remark that I altogether approve of this section, sir, its provisions; and I rise merely to observe that one of the committees of this body went so far as to deprive the lieutenant governor, the second officer in the executive department, of the privilege of presiding over the legislative body in the present Constitution of Virginia. Sir, he is made the presiding officer of the senate without the right even to vote. The Committee on the Executive Department thought he ought not even to be the presiding officer of that body and I have so reported to this Convention. It met with my views heartily. So every provision in this section does and I hope we will adopt it.

Well, sir, the point might as well be decided now as at any other time whether an executive officer shall be a component part of the legislature. Now, sir, it is very easy to provide that the senate shall elect a president and that in case of any difficulty with the governor that the president of the senate shall act as governor for the time being or where the necessity continues, or that in the death of the governor he shall become the governor. He ceases to be a legislative officer then and takes the place of governor.

I hope a vote on this section may be considered as an instruction to the executive committee on that head.

MR. CALDWELL. The committee have so reported.

MR. VAN WINKLE. I beg your pardon; I thought you had reported the other way. Well, sir, I am glad to hear it.

MR. STUART of Doddridge. The committee also reported to recommend the election of a lieutenant governor.

MR. CALDWELL. To do nothing until the governor dies (Laughter).

The question was taken on the 12th section and it was agreed to. Section 13 was reported by the Secretary as follows:

Sec. 13. Treason against the State shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort. Every attempt to justify and uphold an armed invasion of the State, or an organized insurrection within the limits thereof, by publicly speaking, writing or printing, or the publishing or circulating of any such writing or printing during the continuance of such invasion or insurrection, shall be deemed an adhering to the enemies of the State. Treason shall be punished, according to the character of the acts committed, by the infliction of one or more of the penalties of death, imprisonment, fine or confiscation of real and personal property of the offenders, as may be prescribed by law.

MR. VAN WINKLE. Mr. President, I will ask here before I sit down that this section may be considered in clauses. The first is that "treason against the State shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort." The second is "every attempt to justify and uphold an armed invasion of the State, or an organized insurrection within the limits thereof, by publicly speaking writing or printing, or the publishing or circulation of any such writing or printing, during the continuance of such invasion or insurrection, shall be deemed an adhering to the enemies of the State." Third, "treason shall be punished according to the character of the acts committed, by the infliction of one or more penalties of death, imprisonment, fine or confiscation of real and personal property of the offenders, as may be prescribed by law." The first defines the crime of treason, the second makes certain acts the proof of treason, and the third enables the punishment to be less than death.

There have been great doubts - and I think very good and well founded - whether there is such a thing as treason against a state. The United States Government undertakes the conduct of the war that is to be conducted in or on behalf of the states. States are not permitted by the Constitution of the United States to keep armies or ships of war in time of peace. The United States is bound to repel the invasion of any state, and is bound, upon proper application, to suppress any insurrection arising within any state. There is a qualification that application shall be made, but I shall only construe that as being to prevent the necessity of the United States forces being called forth on trivial occasions. It is very hard perhaps at some times to distinguish between a mere riot and an insurrection within its borders; but whenever a state notifies the general government in a proper way that there is an insurrection within its borders, then the United States Government is bound to send and suppress that insurrection. It is true it may use the state militia, but then it is put under control of the United States Government in time of war. Now, who can be enemies of the State, therefore, unless they are at the same time enemies of the United States? And if enemies of the United States, then the act of treason is an offense not against the state but against the United States. The first official recognition of this restored government was an application to the President on the information that the state was in a state of insurrection, and was a call on the United States Government for aid in those respects The reply was almost immediate from the War Department that that aid would be furnished. That was the first formal recognition of the restored government. The documents accompany the governor's message. We hold, sir, from the first that all expenses incurred by this restored government or by the government of any of the loyal states in suppressing this rebellion, in defending even their own territory against the rebels or the insurrectionists - every dollar of expense that may be incurred in that way must be reimbursed to the state by the general government - and upon this very principle: that the war was the war of the general government. It was only the war of the states so far as they were part of the United States, and being their war they must be liable for the expenses. If this is correct, sir, then the other conclusion follows, of course, that treason can only be committed against the United States. There is not and has not been in the Constitution of Virginia any such clause. There is a statute, however, which defines treason in this way and makes other acts, for instance the setting up of another government treason against the State. I am not, sir, not anticipating that this question would arise here this evening, as fully prepared to give my views on it as I might have been, but I think I have given the leading principles which must govern in this discussion. I have conferred with legal gentlemen outside of the Convention on the subject, and I believe they are of the same opinion. I think a similar decision has been made by the Supreme Court of the United States although I have not recently seen the decision itself nor cannot say precisely how far it goes. But I should like, of course, to hear from any gentleman who is familiar with the subject or can throw any light on it. I am sorry the member from Monongalia has been compelled to leave us. I had some conversation with him on the subject and I think he was very clear that there could be no treason against a state of this nation.

MR. LAMB. It does seem to me, I must confess, that it is entirely unnecessary for us to put any provision on this subject in the constitution of the state. I believe there is no provision on the subject of treason in the present constitution of the state. There is no provision in the constitution of the state on the subject of murder. Yet it does not prevent the legislature from enacting proper laws to prevent that offense. Why not leave this on the same footing as other crimes?

MR. BROWN of Kanawha. I acknowledge, sir, I must differ in toto with the gentleman from Wood in regard to the doctrine he lays down, that no treason can exist against the state. Wherever allegiance is owed, there the obligation of protection is a correlative and wherever the two exist, treason is the result. Treason is that violation of a man's allegiance to the country that he owes it to; and to the extent of the powers reserved by the states a man's obligations of obedience are as complete and perfect as they were before to the entire powers that the state had before any Confederation or United States was ever formed; and the states now forming the general government of the United States only conceded such powers as are delegated expressly in the Constitution, and it is expressly declared in that same Constitution, to preclude a contrary conclusion, that all the powers not delegated are expressly reserved to the states and the people. Every power, therefore, that is reserved - and that is a great residuum of power not delegated - is perfect and complete. There is nothing wanting in it; but to the extent of those reserved powers every citizen owes his allegiance direct and perfect to the state. To that extent he can commit treason; and it is as perfect an offense against the state as against the United States wherever the individual violates the obligations he owes to the United States where the powers have been delegated. Why, sir, I owe no allegiance to the United States beyond the powers delegated. The government of the United States is a perfect government within its prescribed limits. Outside of them I owe it no obedience. None whatever. Outside of those limits all my allegiance is to the State. The whole powers of sovereignty in this government, in this country, are carved out and distinct.

To the general government is conceded one part; to the State the other part; and it requires the two to make it complete. A citizen owes a divided and double allegiance; and it is never in conflict as long as these two governments keep within their prescribed boundaries. It is only when one undertakes to invade the rights of the other that there can be a conflict, and then it is that this question arises. And this question is not a one-sided one in Virginia. Why, sir, in the case of John Brown, at Harper's Ferry, they were indicted for treason against the State of Virginia, and convicted for it and sentenced for the same; and they were executed for the same; but as Governor Wise said to the President, when Virginia was done with them the United States could have the residue for any treason against the United States. It is a decided question; so far as I am aware, an undisputed question. I have never before heard it raised or mooted. Our statute books from the beginning of the commonwealth have defined and declared what treason against the state was, and the language used is the same that is used in the laws of the United States and in the Constitution of the United States: that treason against the state shall consist in levying war and giving aid and comfort to its enemies, and treason against the United States is levying war against the United States and giving aid and comfort to their enemies.

Well, sir, I differ with the gentleman in another particular materially: that whenever an insurrection arises in a state that it is an insurrection against the United States and that the United States can assume upon itself to put it down without first being called upon by the state government. I deny in toto any such proposition. I maintain within the borders of the state the jurisdiction of the state when a local insurrection arises within that border it is against the state government not against the United States Government. Mark you, against the state government. The United States has no right to enter the territory with her army or interfere with the local regulations of the state until, as prescribed in the Constitution of the United States, the governor or the legislature of the state calls upon the President to aid us; and whenever that is done then the Constitution makes it obligatory on the President to render the aid that is required, and that is one of the guaranties to secure every state for its protection against this insurrection. So that the entry of the general government to interfere with the state concerns is no part of its duty. It is a violation of the Constitution. We have provided against any such encroachment. The state manages its own affairs; and because the general government has no authority for interference is one of the reasons why the state has a right to claim the allegiance and obedience of the citizens, and if he refuses to render it, he commits treason against the state.

Again the gentleman alludes to some decision of the Supreme Court of the United States. I confess I am aware of none, and I think the gentleman is mistaken. I think he will find that the Supreme Court have never uttered any sentiment of the kind - that no decision of the kind has ever been made. If it has it is new to me. I have neither heard of it through the press nor have the law books reported it. I confess I do not feel the necessity of including this clause in the Constitution, for I believe all this is legitimate action for the legislature; and as the legislature of a state, unless prohibited has all power delegated to it to do as it pleases, that this would be fully within the purview of legislation, and heretofore it has been in our state the subject of legislation. I hold it is wholly immaterial whether it be in the Constitution or submitted to the legislature. Here it defines and describes, and it is as well done here as there. It is not so easily altered. That is the only objection, I conceive that could be taken to it.

MR. VAN WINKLE. The authority I refer to is Story's Commentaries. I have sir, a little book here which has a few words on this subject which I would like to read to the Convention, confirming, to some extent at any rate, the remarks I have made.

Mr. Van Winkle then read from a Constitutional Manual, which he held in his hand, which referred to 1 Story's Commentaries 171, and regretted that he had not at hand the authority cited:

"A State cannot take cognizance of or punish the crime of treason against the United States. As treason is a crime whose object is to overthrow the government, and the government of the State is guaranteed by that of the United States, it follows, there can be no treason against a State which is not also treason against the United States, and consequently the crime of treason cannot be punished by the States."

MR. VAN WINKLE. Of course, there can be no doubt of that. That I presume is not a question that is mooted anywhere.

MR. PARKER. What authority is that?

MR. VAN WINKLE. I do not offer the book as authority. It is only argumentation. It refers to Story as authority for that much; that a state cannot punish treason against the United States, and I think it is very obvious that it cannot, and I presume that is granted without any difficulty. Well, it then goes on to say - and there I certainly coincide with it, and it was what I was endeavoring to illustrate to the Convention in my former remarks - that anything in the nature of opposition to a state - in the nature of levying war against a state, is at the same time levying war against the United States and is therefore treason against the United States, and if treason cannot be punished by a state, the state cannot justly punish that treason which is even committed against itself or that treason which consists in levying war against itself. If the principle is a good one that no state can punish treason against the United States then although that treason consisted in levying war against the state itself, it is still precluded from the right to punish it. I cannot take the John Brown case as much authority, especially if accompanied with that declaration of Gov. Wise, that when the state was done with John Brown and his confederates the general government could have what was left of them. I should think, sir, it was only the first act of rebellion. I do not know how it happened that the United States officers did not claim jurisdiction in that case. But I cannot think the case as tried before the circuit court there decides anything in reference to the matter in question.

MR. BROWN of Kanawha. The gentleman, perhaps, has but little regard for the authorities of Virginia, as I should infer from the last remark he made, and may have a good deal for Judge Story or the book from which he reads. Surely the remarks of Gov. Wise could not affect the validity of a judicial decision.

MR. VAN WINKLE. I say that the language in which that remark was couched, and the spirit in which it was conceived, indicated a rebellious spirit against the United States, and the whole transaction might be in the same spirit. They claimed a right to punish where they had no right.

MR. BROWN of Kanawha. I must deny that. That is begging the question. The question here was whether treason could be committed against a state. That was a matter to be decided. That was decided by a judicial tribunal, the proper one the law had referred the case to; and, sir, the ablest counsel in the country were there. The most learned lawyers came there to test this very question. Every question that could be made in it, almost, and many more, were made. I recollect Mr. Gushing took a very active part in the discussion of that question in public assemblies; and I believe the attorney general was very strenuous that if anything wrong was done to that man the power of the nation should be brought to his rescue, but that everything was legitimate; and it was carried to the Court of Appeals of Virginia and they refused a supersedeas to it. And could it be supposed, if it were the plan, an easy matter that a man and his Confederates were taken up and tried for a crime they never committed, and they all citizens of other states anxious to secure his release and all the anxieties of a great Nation anxious to relieve him if he were not guilty, and the Supreme Court of the United States ready to issue its mandamus? And would it be possible that these men would be allowed under this plain state of the case to be tried and sentenced to hang for an offense that could not be committed? The authority cited by the gentleman is a mere ratiocination of some writer whom I know not, and for whom - without any disrespect to the gentleman or his book - I care less. Ratiocination upon this fact that the United States Government guarantees to every state the state government. That is a misconstruction. The guaranty is not in a state government. The Constitution of the United States guarantees a republican form of government.

MR. VAN WINKLE. The gentleman is misquoting me. The authority is merely as to the fact that the state cannot punish treason against the United States.

MR. BROWN of Kanawha. Very well, sir, there is no question that a state government cannot undertake to exclude the laws of the United States. The United States is a perfect government of itself, and that was the very object of its creation. It is a distinguishing feature of the old Confederacy that it executes its own mandates on the citizens; and we are citizens and therefore liable to obey its orders. And it depends not on the state government and it cannot therefore try and convict a man under a law the state government did not pass and under an offense that is due to another government.

But the question is, can treason be committed against the state? We know that treason exists against the state and it is everywhere recognized and understood that the state cannot exclude the laws of the United States; but the question is, cannot a state declare what is treason against itself? And try and execute a citizen for disobedience to its mandates and violation of that allegiance? I show the authorities are that they can do it. The reason is because treason is that violation of the obligation which the citizen owes to the sovereignty to the extent of the powers that that sovereignty has a right to claim his obedience. If the state, therefore, has the power to demand my obedience and I refuse to obey, it can punish me; and if I seek to break down the government that makes its laws, it is treason against the government. And the government of the United States, in guaranteeing to the states a republican form of government, does not guarantee to the state, therefore, the government that is in it now and does not undertake to assume to set its foot in the borders of Virginia until it is called on. Why, sir, in the very case of John Brown, Gov. Wise complained of President Buchanan because he did not send the army there to put him down. What was his reply? Why, sir, if you show that there is an insurrection in Virginia, and you want the army of the United States, you shall have them in 20 minutes. But until you call for them, I cannot send them to put down insurrection against the government that you do not require. He sent the Marines there to take care of the arsenal and to assist the marshal in the execution of his duties at Harper's Ferry, but never sent any armies into the state until the governor calls for them or the legislature requires it. There can be no question about the fact to my mind of the existence of treason against the state.

MR. VAN WINKLE. I desire to ask the gentleman a question and that is, whether, in his opinion, the government of the United States could have punished John Brown?

MR. BROWN of Kanawha. I have no doubt about it.

MR. VAN WINKLE. If they could, then it was treason against the United States. And if it is treason against the United States, my point is simply that the state cannot punish him.

MR. LAMB. Mr. President, I do not want, for one, in this Convention, to undertake to decide grave legal questions between the two gentlemen. If we do our authority may get into the books; and I want more light on it before I, for one, undertake to give an opinion on that subject. However, we can get rid of the difficulty very easy. My friend from Wood argues that it is doubtful at least whether the state can punish treason, because treason against the state must be necessarily treason against the United States. Hence this state of the case: it is certainly improper to insert this provision into the Constitution. The gentleman from Kanawha argues, on the contrary, that the state has unquestionably the right to punish treason against herself, but he tells us at the same time that is unnecessary to insert this provision in the Constitution. The State of Virginia has punished John Brown without a provision on the subject, and the legislature will have full authority to legislate on the subject, if a state can do it, without our putting anything in the Constitution about it just as much as it will have authority to legislate on the subject of any other crime. I have been looking at the constitutions of the different states. I have not, of course, been able to give them that thorough search which I ought to give in attempting to speak in reference to them; but I have not found, as yet, any constitution of a state that contains a provision similar to this except the Constitution of the State of Deleware. In the other states it is generally omitted; and I think it would be the much better course for us to take in this case.

I move to strike out section 13.

MR. PARKER. I am not very much prepared to speak on this question; but I must say it is the first time in my life that I ever heard it questioned by anybody, whether judicial, lawyers, judges, that treason could not be committed against a state government. I agree with the gentleman from Kanawha throughout. I supposed it a fact just as perfectly settled in this country that treason could be committed against a state government as the fact was established that state governments exist. Government is government. A state government has the allegiance of its citizens. Every government has the allegiance of its citizens or it is no government at all. Wherever allegiance exists, a violation of that allegiance is treason. No doubt of it. I never heard it questioned in any state of this Union.

MR. VAN WINKLE. I was only quoting what Judge Story says about it.

MR. PARKER. Judge Story says that treason against one government cannot be punished by another government. Well, I suppose that is very clear. I do not suppose any of us want to argue that question. The government that is assaulted and injured is the government that punishes. What has that to do with this question? The question is here simply, under our system of government can treason by its citizens be committed against a state government? I say if we deem that such a thing as a state government exists, then we admit that treason is capable of being committed against it. Admit the one, the other goes with it. Government is protection on the one side, duty and allegiance on the other. As I understand the theory of our government in the people, from the people all power originally arises and in them is vested. I am a part of the Constitution of Virginia. They have made the government of Virginia. As an American citizen, I am also a part of that great constituency which has erected the Federal government. Therefore, I am a citizen of two governments. They are both amenable to me. The people are the source of power for them both. Both governments spring from the people and rest upon them. The people have invested the one government with certain powers and called them agencies, if you choose. They are our agents. They have that in common. The people of Virginia, in common with the rest of the people of the United States, have conferred certain powers - we will describe them as limited - upon the Federal Government. Now, so far as we have clothed these two governments with power, we owe allegiance to those two governments so long as they keep within limit of those powers which we have delegated. We are amenable to them. If the two powers should come in conflict of course the state power gives way to the Federal power, for that is the supreme law of the land. That is the point. Where they come in conflict, then the state law gives way to the Federal law, and we cannot violate them both because the state law being in conflict with the Federal law it is a nullity. We do not break it. But there is ample field for the state legislation outside of Federal legislation. If we violate our allegiance to the state where it is legitimate allegiance, why, then, it is treason to the state. The Federal Government has nothing to do with it - nothing unless the act that we do violates our allegiance to the Federal Government acting within its legitimate and prescribed powers. If it is without those powers, we have nothing to do with it. It is an agent without any authority the power the people have not granted to these governments is still reserved and we hold ourselves. What we have given to the Federal Government is the supreme law of the land. If we violate that, then to that government we are alone amenable. If outside of those powers, we violate our duty and the powers we have put upon the state agent, failing in our allegiance to that, in case of rebellion or resistance to the execution of a state law - suppose a state court of equity in and chancery should issue an injunction to deliver up such and such property, and force should meet the power, the officer, that was executing it, why that would be a resistance to lawful authority; it would be rebellion; if carried out, it would be treason. Suppose it is to put A. B. in the possession of a piece of land, that does not touch any power -

MR. LAMB. I would suggest to the gentleman that he addresses his remarks to the President, as he should under our rule. I don't know whether he is speaking at me or the gentleman from Wood (Laughter).

MR. PARKER. Thank you. Therefore, in that case - I thank the gentleman from Ohio; I thank him again - (Laughter) - the resistance to that officer when executing a state law, Mr. President, would be rebellion; if the resistance was large, covering a sufficient force, it would raise itself into treason - not treason against the Federal Government, for it has not violated a law of the Federal Government, but against the State of Virginia. By the Federal Constitution, the State of Virginia has a right to call upon the Federal Government to come and help her put down that rebellion. The Federal Government acts not that it is struck or wounded or touched but because in fulfillment of an obligation she is under to every state she is bound to come in and help them when called on. Just as President Buchanan said to Governor Wise: When you call for me, I will send forces. Through every state in this Union, in its constitution and statute books, you will find treason against the state; and treason being a fact, I want it in the Constitution. Treason has now become a common and very troublesome matter; and so far as I am concerned, I want to see it put in the Constitution, not leave it to the legislature. In regard to the terms which I would like, I thought it was very well expressed. The chairman of the committee expressed it except one word "adhere" there. It should be "adhering," giving aid and comfort; for adhering to the enemy merely mentally, without some overt act, without giving aid and comfort, does not constitute treason in this country.

MR. HALL of Marion. I feel very anxious to see some provision in regard to this matter engrafted in the Constitution; and this is a question that considering the hour tonight and the time it has been under consideration in this body, I apprehend we might all profit by sleeping on it till morning. I have an opinion on it; I am ready to act on it; I have thought of it; and I have a decided opinion that I shall not trouble the Convention with any remarks; now in consequence of the hour. I do not know that I shall in the morning. But I move we adjourn.

The motion was agreed to and the Convention adjourned.

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Chapter Eleven: First Constitutional Convention of West Virginia

A State of Convenience

West Virginia Archives and History