Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

December 17, 1861

The Convention assembled at the appointed hour.

The minutes were read without objection.

MR. LAMB. Mr. President -

THE PRESIDENT. If the gentleman will wait a moment until the President signs the Journals.

MR. LAMB (after an interval). I am instructed by the Committee on the Legislative Department to submit their second report.

In submitting this report I trust the Convention will indulge me in a remark or two. I cannot say - and I suppose there is no member of the committee can say - that I approve entirely of everything contained in the report; but we have found during the progress of the consideration of this subject the necessity for compromise. If each one were to adhere rigidly to his own motion, it would be impossible in any reasonable time - if at all - to propose a constitution to the people of West Virginia. We have found another thing: The great difficulty which is inherent in the very nature of the subject. Our constituents are perhaps not duly advised of this matter. Every one almost would consider that he could form a constitution for the State with very little difficulty. Yet without consideration. To take to pieces the frame of government and put it together, each one in its proper place, and each provision to operate properly, is a work of immense difficulty. Another consideration I mention in regard to this report: we have appointed a Committee on Fundamental Principles, a Committee on the Legislative Department, a Committee on the Executive, and other committees, to whom the various branches of the Constitution have been entrusted. It is impossible to define with any precision, in many instances what comes more properly within the sphere of one committee or the other. There is nothing, in one sense of the term, which is to be provided in the Constitution but what must involve some fundamental and general principles and may affect the executive, judiciary or other department so it is in regard to the matter of this committee and the other several committees. In this state of the case, it will necessarily be found that our reports are overlapping each other. Provisions will be reported by different committees on the same subject, nor do I suppose that there will be found any inconvenience in this. The Convention will have where this occurs different projects upon the same matter submitted for their consideration. Whatever is adopted will be finally referred to the Committee on Revision, whose main duty it will be to render everything consistent and put everything in its proper place in the Constitution. It will then come up at last for final revision by the Convention itself.

With these remarks I submit the report.

Mr. Lamb then sent the report to the desk of the Secretary as follows:

The committee respectfully recommend that the following provisions be inserted in the Constitution of West Virginia:

1. The legislative power of the State shall be vested in a Senate and House of Delegates. The style of their acts shall be, "Be it enacted by the Legislature of West Virginia."

2. The senate shall be composed of eighteen, and the house of delegates of forty-six members. The term of office for senators shall be three years, and that of delegates one year, commencing, in each case, on the first day of October next succeeding their election. The regular elections for members of the legislature shall be held on the fourth Thursday of May. But vacancies in either branch shall be filled by election, for the unexpired term, in such a manner as shall be prescribed by law.

3. For the election of senators, the state shall be divided into nine senatorial districts, as nearly equal as possible in white population; each district to choose two senators. Every such district shall be compact, formed of contiguous territory and be bounded by county lines. After each census hereafter taken by authority of the United States, the legislature shall alter the senatorial districts, so far as may be necessary to make them conformable to the foregoing provisions.

4. Until the senatorial districts shall be differently arranged after the next census taken by authority of the United States the counties of Hancock, Brooke and Ohio shall constitute the First senatorial district; Marshall, Wetzel and Marion, the second; Monongalia, Preston and Taylor, the third; Pleasants, Tyler, Ritchie, Doddridge and Harrison, the fourth; Wood, Jackson, Wirt, Roane, Calhoun and Gilmer, the fifth; Barbour, Tucker, Lewis, Braxton, Upshur and Randolph, the sixth; Mason, Putnam, Kanawha, Clay and Nicholas, the seventh; Cabell, Wayne, Boone, Logan, Wyoming, Mercer and McDowell, the eighth; and Webster, Pocahontas, Fayette, Raleigh, Greenbrier and Monroe, the ninth.

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

6. After each census hereafter taken by authority of the United States, the delegates shall be apportioned as follows:

The ratio of representation for the house of delegates shall be ascertained by dividing the whole white population of the State by the number of which the house is to consist, and rejecting the fraction of a unit, if any, resulting from such division.

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

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

7. Until a new apportionment be declared under the next census to be taken by authority of the United States, the counties of Calhoun and Gilmer shall form the first delegate district; Clay and Braxton the second; Pleasants and Wood the third; McDowell, Wyoming and Raleigh the fourth; Tucker and Randolph the fifth; and Webster and Nicholas the sixth. And the apportionment of delegates shall be as follows:

To the third delegate district, two delegates; and to the other five, one each.

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

To Harrison, Kanawha, Marion, Marshall, Monongalia and Preston counties, two delegates each. And to Ohio county, three delegates.

8. The arrangement of the senatorial and delegate districts, and apportionment of delegates, shall hereafter be declared by law as soon as possible after each succeeding census. When so declared, they shall apply to the first regular election for members of the legislature to be thereafter held; and shall continue in force, unchanged, until the districts be changed and delegates reapportioned under the next census.

9. No new county shall be formed having an area of less than four hundred and fifty square miles. Nor shall a new county be formed if another county be thereby reduced below that area; or if any territory be thereby taken from a county containing less than four hundred and fifty square miles.

And no new county shall be formed containing a white population of less than four thousand. Nor shall a new county be formed if the white population of another county be thereby reduced below that number; or if any county containing less than four thousand white inhabitants be thereby reduced in area. But the legislature may, at any time, include any county containing less than four thousand white inhabitants within an adjoining county or counties as part thereof.

10. Additional territory may be admitted into and become part of this State, with the consent of the legislature thereof. And in such case, the legislature shall provide by law for the representation of the white inhabitants thereof in the senate and house of delegates, in conformity with the principles set forth in this Constitution. And the number of members of which each branch of the legislature is to consist, shall thereafter be increased by the representation assigned to such additional territory.

II. The legislature shall have power to provide for a registry of votes, and to prescribe the manner of conducting and making returns of elections, and of determining contested elections. They shall have power to pass all laws necessary or proper to prevent intimidation, disorder or violence at elections, or corruption or fraud in voting.

12. No person shall be a senator who shall not have attained to the age of twenty-five years; or who was not, at the time of his election, entitled to vote in the senatorial district for which he was chosen. And no person shall be a delegate who was not, at the time of his election, entitled to vote in the delegate district or county for which he was chosen.

Nor shall any person holding an office of profit under this State or the United States; any minister or priest, of a religious denomination; any salaried officer of a banking corporation or company; or any attorney for the State, be a member of either branch of the legislature.

No person who may have collected, or been entrusted with public money, whether State, county, township or municipal, shall be eligible to the legislature, or to any office of honor, trust or profit, under this State, until he shall have duly accounted for and paid over such money.

If a senator or delegate remove from the district or county, for which he was chosen, his office shall be thereby vacated.

13. Any citizen of this State, who shall, after the adoption of this Constitution, either in or out of the State, fight a duel with deadly weapons, or send or accept a challenge so to do; or who shall act as second, or knowingly aid or assist in such duel, shall ever thereafter be incapable of holding any office of honor, trust or profit under this State.

14. The legislature shall meet once in every year, and not oftener, unless convened by the governor. Unless another time be prescribed by law, the regular session shall begin on the first Monday of December.

15. The governor may convene the legislature by proclamation, whenever in his opinion, the public safety or welfare shall require it. It shall be his duty to convene them, on application of a majority of the members elected to each branch.

16. The seat of government shall be at the city of Wheeling, until the legislature shall establish a permanent seat of government by law.

17. When by reason of war, insurrection, contagious or epidemic diseases, or for other causes, the legislature, in the opinion of the governor, cannot safely meet at the seat of government, the governor, by proclamation, may convene them at another place.

18. No session of the legislature, after the first, shall continue longer than forty-five days, without the concurrence of three- fifths of the members elected to each branch.

19. Neither branch, during the session, shall adjourn for more than two days, without the consent of the other. Nor shall either, without the consent of the other, adjourn to any other place than that in which the legislature is then sitting.

20. Each branch shall be the judge of the elections, qualifications and returns of its own members.

21. A majority of each branch shall constitute a quorum to do business. But a smaller number may adjourn from day to day, and compell the attendance of absent members in such manner as shall be prescribed by law.

22. The senate shall choose from their own body a president, and the house of delegates one of their own number as speaker. Each branch shall appoint its own officers and remove them at pleasure; and shall determine its own rules of proceeding.

23. Each branch may punish its own members for disorderly behavior; and, with the concurrence of two-thirds of the members present, expel a member; but not a second time for the same offence.

24. Each branch shall have the power necessary to provide for its own. safety, and the undisturbed transaction of its own business; and may punish, by imprisonment, any person, not a member, for disrespectful behavior in its presence; for obstructing any of its proceedings, or any of its officers in the discharge of his duties; or for any assault, threatening or abuse of a member for words spoken in debate. But such imprisonment shall cease at the termination of the session; and shall not prevent the punishment of any offence by the ordinary course of law.

25. For words spoken in debate, or any report, motion or proposition made, in either branch, a member shall not be questioned in any other place.

26. Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during the session, and for ten days before and after the same.

27. Senators and delegates shall receive for their services a compensation to be precribed by law. No act changing the compensation shall affect members of the legislature then in office.

28. Bills and resolutions may originate in either branch, to be approved, amended or rejected by the other.

29. No bill shall become a law until it has been fully and distinctly read, on three different days, in. each branch, unless in cases of urgency, three-fourths of the members present dispense with this rule.

30. No law shall embrace more than one object, which shall be expressed in its title.

31. On the passage of every bill, the vote shall be taken by yeas and nays, and be entered on the Journal; and no bill shall be passed by either branch without the affirmative vote of a majority of the members elected thereto.

32. The presiding officers of each branch shall sign publicly, in the presence of the branch over which he presides, while the same is in session, all bills and joint resolutions passed by the legislature.

33. Each branch shall keep a journal of its proceedings, and cause the same to be published from time to time; and the yeas and nays on any question, shall at the desire of one-fifth of those present, be entered on the journal.

34. No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

35. The legislature, in cases not provided for in this Constitution, shall prescribe by law the terms of office, powers, duties, and compensation of all officers of the State, and the manner in which they shall be appointed and removed.

36. No extra compensation shall be granted or allowed by the legislature to any public officer, agent or contractor, after the services shall have been rendered, or the contract entered into. Nor shall the salary or compensation of any public officer be increased or diminished during his term of office, unless the office be abolished.

37. Any officer of the State may be impeached for maladministration, corruption, neglect of duty or any high crime or misdemeanor.

The house of delegates shall have sole power of impeachment. The senate shall have the sole power to try impeachments. When sitting for that purpose, the senators shall be on oath or affirmation; and no person shall be convicted without the concurrence of two-thirds of the members present.

Judgment in case of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit under the State; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment according to law.

The Senate may sit during the recess of the legislature for the trial of impeachments.

38. No act to incorporate any joint stock company, or to confer additional privileges on the same; and no private act of any kind, shall be passed, unless public notice of the intended application for such act be given under such regulations as shall be prescribed by law.

39. No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be enforced, restrained, molested or burthened in his body or goods, or otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess, and by argument to maintain, their opinions in matters of religion; and the same shall in no wise affect, diminish or enlarge their civil capacities. And the legislature shall not prescribe any religious test whatever; or confer any peculiar privileges or advantages on any sect or denomination; or pass any law requiring or authorizing any religious society, or the people of any district within this State, to levy on themselves or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please.

40. The legislature shall not grant a charter of incorporation to any church or religious denomination; but may provide by general laws for securing the title of church property so that it shall be held and used for the purposes intended.

41. The legislature shall confer on the courts the power to grant divorces, change the names of persons, and direct the sales of estates belonging to infants and other persons under legal disabilities; but shall not, by special legislation, grant relief in such cases.

42. The legislature shall pass laws to protect the property of the wife against the acts and debts of the husband.

43. No convention shall be called, having authority to alter the constitution of the state, unless it be in pursuance of a law passed by the affirmative vote of a majority of the members elected to each branch of the legislature, declaring distinctly the powers and object of such convention, and providing that polls shall be held through out the state, on some day therein specified, which shall be not less than three months after the passage of such law, for the purpose of taking the sense of the voters on the question of calling a convention for the purpose and with the powers set forth in such law. And such convention shall not be held unless a majority of the votes cast at such polls be in favor of calling the same; nor shall members be elected to such convention, until at least one month after the result of the polls shall be duly ascertained, declared and published. And all acts and ordinances of said convention shall be submitted to the voters of the state for ratification or rejection, and shall have no validity whatever until they are ratified; and in no event shall they, by any shift or device, be made to have any retrospective operation or effect.

DANIEL LAMB, Chairman.


MR. PAXTON. I thought by an order sometime ago all reports were to be laid on the table without reading.

MR. LAMB. Not reports; propositions.

THE PRESIDENT. That applied to propositions, petitions, etc. Any such papers as were to be referred to standing committees.

MR. LAMB. I believe I will move to dispense with the reading. The paper will be printed and handed to the members in the morning. I will move that it lie on the table and be printed.

The motion was agreed to.

MR. LAMB. I should mention to the members of the committee that I have appended to the report the figures showing the apportionment and arrangement of the senatorial districts.

MR. BROWN of Kanawha. On that subject of apportionment, the committee was not able entirely to agree. I may be wrong, but I have deemed it my duty to bring in a minority report so far as that is concerned. The balance of the report I fully concur with. My object is that the whole subject may be before the Convention. I will make it my duty as soon as I can to furnish a minority report to this report now under consideration so far as apportionment is concerned. That is the difficulty in arranging the districts. It is a matter of a great deal of trouble and calculation. The committee have not been fully able to agree in the arrangement that has been adopted.

THE PRESIDENT. The minority report is now ready?

MR. BROWN of Kanawha. No, sir.

Mr. Hervey offered the following resolution, which he asked to have printed and referred to the Committee on the Judiciary:

Section 1. There shall be established in each county, a court for such county, which shall be a court of record, and holden every two months by one judge, elected by the voters of the county; who shall hold his office for the term of four years, and shall receive such compensation, payable out of the county treasury, or by fees, or both, as shall be provided by law.

Section 2. The jurisdiction of said court shall be the same as that of the existing county courts, except so far as it is modified by this Constitution, or may be changed by law.

Section 3. There shall be elected in each county, by the electors thereof, one clerk of the circuit court, who shall hold his office for the term of four years and until his successor shall be elected and qualified. He shall, by virtue of his office, be clerk of all other courts held therein; but the legislature may provide, by law, when necessary, for the election of a clerk, with a like term of office, for each, or any other of the courts of record, under such regulations as may be directed by law. Clerks of courts shall be removable for such cause, and in such manner as shall be prescribed by law.

MR. STUART of Doddridge. I wish to make an inquiry. We passed a resolution yesterday paying the officers of this body the same compensation as paid at the last convention. I am not informed of the fact whether they had an assistant clerk or not. I understand the duties of the Clerk here cannot be performed by one man; and my inquiry is simply to know whether they had one at the last convention and whether he was compensated, if anybody is informed on that point.

THE PRESIDENT. The Chair has not the information before him.

MR. STEVENSON of Wood. I will state, Mr. President, that I was informed by some person this morning, if I recollect right the sergeant-at-arms, that they had an assistant clerk. If I am mistaken in that, however, I can be corrected.

MR. STUART of Doddridge. Was his compensation fixed?

THE SERGEANT-AT-ARMS. No, sir; the Clerk received so much and he agreed to pay his own assistant.

MR. STUART of Doddridge. Can anybody inform us what the price was?

THE SECRETARY. It was eight dollars, sir. This Clerk doesn't feel like he could employ one at that price.

MR. STUART of Doddridge. I am informed, Mr. President, that duties devolving on our present Clerk cannot be performed by one man, and it is very heavy and laborious; and I am also informed by the present Assistant Clerk that he cannot remain here unless compensated. If his services are expected to be needed here, he will return when reassembles and assist us in our labors. It strikes me that for the duties devolving on our present Clerk there is not sufficient compensation to authorize him to employ a competent assistant clerk. I would like to bring that thing before the Convention and know what are their views on that question. I understand we will not be able to get the labors of our Assistant Clerk unless there is some compensation fixed for him.

MR. POMEROY. Well, I hope the gentleman from Doddridge will suggest the amount he ought to get.

MR. STUART of Doddridge. I merely throw out this.

MR. POMEROY. Well, I am in favor of it, and if the gentleman doesn't feel like making a suggestion, that as it is in the family and they are brothers, that he have three dollars a day.

THE SECRETARY. I would just suggest that I do not ask for much. If you will make it two dollars, I will be satisfied.

THE PRESIDENT. It is moved by the gentleman from Hancock to increase the compensation of the Secretary two dollars a day.

The motion was agreed to.

MR. STEVENSON of Wood. Mr. President, while matters of that kind are up, I wish to state that a person who performs the duties of janitor here gets but a dollar and a half a day according to the resolution passed last night, while the door keepers get two dollars a day. The janitor does more work than any man about the building before the Convention meets and after it adjourns and has to attend to the committee rooms until very late hours at night; and I move that his salary be fixed at two dollars a day. It is certainly worth that if the door keepers are worth that.

The motion was agreed to.

MR. STEVENSON of Wood. Mr. President, the committee appointed to make an estimate of the probable cost of the Convention for a session of sixty-five days have not had much time to attend to the matter not having received all the bills of expenses up to the present time. I have not had time to consult with my colleague from Tyier but I will take the liberty of offering the present report in his absence. I have merely sketched it out, sir, and the phraseology may not be as it should be. I offer it now because there appears to be no other business before the Convention.

The Committee on Printing and Expenditures, having been instructed to "report an estimate of the sum which will probably be required to pay the members and officers, and defray all other expenses of the Convention, based on a probable session of sixty- five days, in order that the same may be laid before the legislature for their government," would respectfully report that they have made such estimate, and find that the probable expenses of the Convention for a session of sixty-five days, will be sixteen thousand, three hundred dollars.

All of which is respectfully submitted.

W. E. STEVENSON, Chairman.

MR. LAMB. I suggest that it had better be made $500 from the fact that we added something to the salaries of officers.

Mr. Stevenson accepted the suggestion and altered the report to read $16,500.

MR. VAN WINKLE. I wish to offer the following:

RESOLVED, That the report of the committee be accepted, and that the President of this Convention inform the legislature that the expenses of this body will probably amount to sixteen thousand, five hundred dollars, and to request that the said sum be placed at the disposal of the Convention. I

The resolution was adopted. I

MR. LAMB. The next business in order will be the report of the Committee on the Executive Department. I saw the gentleman from Marshall come into the Convention. I do not see him now. O, yes, there he is.

MR. CALDWELL. Mr. President, I was going to ask, sir, whether the action of this body on the report on fundamental provisions would not make it necessary that the report of the Committee on the Executive Department should be recommitted to that committee, sir. The course adopted by this Convention in the report on its fundamental business makes it absolutely necessary that material changes should be made in the report of the Committee on the Executive Department. I find also, sir, in the examination of that report as printed that there are errors that make some sections read badly; and in order that the report may conform to the action of this Convention, as I have already mentioned, sir, and these errors corrected, I believe before this body could take action it should be recommitted and printed. I make that motion, sir - that it be recommitted but not printed.

The motion was agreed to.

MR. LAMB. Mr. President, that report being disposed of, there is nothing that I am aware of that is before the Convention. I would move that when this Convention adjourn, it be to meet tomorrow at eleven o'clock, intending to follow it up with a motion to adjourn unless there are some reports or something else to be brought before the Convention that I am not aware of.

MR. HALL of Marion. Might we not be ready to meet at ten tomorrow if we have not much to do in committee? I make the suggestion.

MR. LAMB. I doubt whether we can get the printing done by that time.

MR. VAN WINKLE. I would like to take this opportunity to iState that there will be a report in the morning on county organization; also to request the Committee on Fundamental and General Provisions to meet this afternoon at half past two at the room over the way.

The President stated the question to be the motion by Mr. Lamb in reference to adjournment.

MR. LAMB. The standing rule was originally eleven. The standing rule was altered to make it ten. The motion in regard to meeting this morning only applied to today.

The motion was agreed to.

MR. HALL of Marion. Before the motion to adjourn, I would give notice that the committee will meet at the committee rooms this afternoon at half past two o'clock.

MR. PAXTON. Before a motion to adjourn, I desire to give notice to the Committee on Taxation and Finance to meet at three o'clock in their room.

MR. HALL of Marion. The committee named by me will meet in the room occupied by the Committee on the Judiciary.

MR. CALDWELL. I rise to give notice that the Committee on the Executive Department will meet tonight at seven o'clock. I am inclined to think that seven o'clock will suit that committee better than any other hour, as the other committees meet this afternoon.

MR. STEVENSON of Wood. I would state, Mr. President, that so far as I am concerned three o'clock this afternoon would suit me very well. Either three or seven in the evening. I do not care which as I am on that committee.

MR. CALDWELL. The member from Monongalia will have another committee at three.

MR. STEVENSON of Wood. Very well; make it seven.

MR. DERING. Mr. President, 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