USA > West Virginia > Hampshire County > History of Hampshire County, West Virginia : from its earliest settlement to the present > Part 8
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One of these delegates, Joseph Johnson, of Harrison county, was the only man up to that time ever chosen gov- ernor from the district west of the Alleghanies; and in the three-quarters of a century since the adoption of Virginia's first constitution, no man from west of the Alleghanies had ever been sent to the United States senate; and only one had been elected from the country west of the Blue Ridge. Eastern property had out-voted western men. Still the people west of the mountains sought their remedy in a new constitution, just as they had sought in vain nearly a generation before.
The constitutional convention met and organized for work. The delegates from the eastern part of the state at once showed their hand. They insisted from the start that there should be a property qualification for suffrage. This was the chief point against which the western people had been so long contending; and the members from west of the Alleghanies were there to resist such a provision in the new constitution, and to fight it to the last. Lines were drawn upon this issue. The contending forces were at once arrayed for the fight. It was seen that the western members and the members who took sides with them were not in as hopeless a minority as they had been in the con- vention of 1830. Still they were not so strong as to assure victory; and the battie was to be long and hard-fought. If there was one man among the western members more conspicuous as a leader than the others, that man was Waitman T. Willey, of Monongalia county. An unswery- ing advocate of liberty in its widest interpretation, and with an uncompromising hatred of tyranny and oppres- sion, he had prepared himself to fight in the front when
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the question of restriction of suffrage should come up. The eastern members forced the issue, and he met it. He denied that property is the true source of political power; but, rather, that the true source should be sought in wis- dom, virtue, patriotism; and that wealth, while not bad in itself, frequenly becomes a source of political weakness. The rights of persons are above' the rights of property. Mr. Scott, a delegate from Fauquier county, declared that this movement by the western members was simply an effort to get their hands on the pocket books of the wealthy east. Mr. Willey repelled this impeachment of the integ- rity of the west. Other members in sympathy with the property qualification took up the cue, and the assault upon the motives of the people of the west became severe and unjust. But the members from that part of the state defended the honor of its people with a vigor and a success which defeated the property qualification in the constitu- tion.
It was not silenced however. It was put forward and carried in another form, by a proviso that members of the assembly and senate should be elected on an arbitrary basis until the year 1865, and at that time the question should be submitted to a vote of the people whether their delegates in the legislature should be apportioned on what was called the "white basis," or the "mixed basis." The first provided that members of the legislature should be apportioned according to the number of white inhabitants; the second, that they should be apportioned according to both property and inhabitants. The eastern members believed that in 1865 the vote of the state would favor the mixed basis, and thus the property qualification would again be in force, although not in exactly the same form as before.
The proceedings of the convention had not advanced far when it became apparent that a sentiment in that body was strong in favor of electing many or all of the county
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and state officers. The sentiment favoring electing judges was particularly strong. Prior to that time the judges in Virginia had been chosen by the legislature or appointed by the governor who was a creature of the legislature. The members from western Virginia, under the lead- ership of Mr. Willey, were in favor of electing the judges. It was more in conformity with the principles of republican government that the power which selected the makers of laws should also select the interpreters of those laws, and also those whose duty it is to execute the laws. The power of the people was thus increased; and with ir- crease of power, there was an increase also in their responsibility. Both are wholesome stimulants for the citizens of a commonwealth who are rising to new ideas and higher principles. The constitution of 1850 is remark- able for the general advance embodied in it. The experi- ence of nearly half a century has shown that many im- provements could be made; but at the time it was adopted, its landmarks were set on higher ground. But, as yet, the idea that the state is the greatest beneficiary from the education of the people, and that it is the duty of the state to provide free schools for this purpose, had not gained sufficient footing to secure so much as an expression in its favor in the constitution of 1850.
The work of the convention was completed, and at an election held for the purpose in 1852 it was ratified and be- came the foundation for state government in Virginia. The Bill of Rights, passed in 1776, and adopted without change as a preamble or introduction to the constitution of 1830, was amended in several particulars and prefixed to the constitution of 1850. The constitution of 1830 re- quired voting by viva voce, without exception. That of 1850 made an exception in favor of deaf and dumb persons. But for all other persons the ballot was forbidden, The property qualification for suffrage was not placed in the constitution. Although a provision was made to foist a 8
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property clause on the state in 1865, the great and unex- pected change made by the civil war before the year 1865, rendered this provision of no force. The leading feat- ures of the "mixed basis," and "white basis," as con- templated by the constitution, were: In 18,5 the people, by vote, were to decide whether the members of the state senate and lower house should be apportioned in accord- ance with the number of voters, without regard to prop- erty; or, whether, in such apportionment, property should be represented. The former was called the white basis or suffrage basis, the latter, mixed basis. Under the mixed basis the apportionment would be based on a ratio of the white inhabitants and of the amount of state taxes paid. Provision was made for the apportionment of sena- tors on one basis and members of the lower house on the other, if the voters should so decide. The members of the convention from West Virginia did not like the mixed basis, but the clause making the provision for it went into the constitution in spite of them. They feared that the populous and wealthy eastern counties would out-vote the counties beyond the Alleghanies, and fasten the mixed basis upon the whole state. But, West Virginia had sep- arated from the old state before 1865, and never voted on that measure. There was a clause which went so far as to provide that the members of the senate might be appor- tioned solely on the basis of taxation, if the people so decided by vote.
Under the constitution, free negroes were not permitted to reside in Virginia, unless free at the time the constitu- tion went into effect. Slaves thereafter manumitted for- feited their freedom by remaining twelve months in the state. Provision was made for enslaving them again.
For the first time in the history of the state, the gov- ernor was to be elected by the people. He had before been appointed by the legislature. County officers, clerks, sheriff, prosecuting attorney and surveyor, were now to
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be elected by the people. The county court, composed of not less than three or more than five justices of the peace, held sessions monthly, and had enlarged jurisdiction. This arrangement was not consistent with the advance made in other branches of county and state government as provided for in the constitution. That county court was not satisfactory; and, even after West Virginia became a state, it did not at first rid itself of the tribunal which had out-lived its usefulness. But after a number of years, a satisfactory change was made by the new state. Under Virginia's constitution of 1850, the auditor, treasurer and secretary were selected by the legislature.
The first constitution of West Virginia was a growth, rather than a creation by a body of men in one convention. The history of that constitution is a part of the history of the causes leading up to and the events attending the creation of a new state from the counties in the western part of Virginia, which had refused to follow the old state when it seceded from the union of states and joined the coalition of rebellious states forming the Southern Confed- eracy. Elsewhere in this volume will be found a narra- tive of the acts by which the new state was formed. The present chapter will consider only those movements and events directly related to the first constitution.
The efforts of the northern states to keep slavery from spreading to new territory, and the attempts of the south to introduce it into the west; the passage of laws by northern states by which they refused to deliver runaway slaves to their masters; decisions of courts in conflict with the wishes of one or the other of the great parties to the controversy; and other acts or doctrines favorable to one or the other; all entered into the presidential campaign of 1860, and gave that contest a bitterness unknown before or since in the history of American politics. For many years the south had been able to carry its points by the ballot box or by statesmanship; but in 1860 the power was slip-
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ping away, and the north was in the ascendancy with its doctrines of no further extension of slavery. Aware of this, the threat came from the south that the southern states would not abide by the result if a republican presi- dent should be elected. There were four candidates in the field; and the republicans elected Abraham Lincoln. The south lost no time in putting into execution its threat that it would not submit to the will of the majority. Had the southern states accepted the result; acquiesced in the limitation of slavery within those states wherein it already had an undisputed foothold, the civil war would not have occurred at that time, and perhaps never. Slavery would have continued years longer. But the rashness of the southern states, and their disregard of law and order, hastened the crisis, and in its result, slavery was stamped out. South Carolina led the revolt by a resolution Decem- ber 20, 1860, by which that state seceded from the Union. Other southern states followed; formed " The Confederate States of America," and elected Jefferson Davis president.
Virginia, as a state, went with the south; but the people of the western part when confronted with the momentous question: "Choose ye this day whom ye will serve," chose to remain citizens of the United States. Governor Letcher of Virginia called an extra session of the legislature to meet January 7, 1861, to consider public affairs. The leg- islature passed a bill calling a convention of the people of Virginia, whose delegates were to be elected Feburay 4, to meet in Richmond, February 13, 1861. A substitute for this bill offered in the lower house of the legislature, providing that a vote of the people of the state should be taken, on the question of calling the convention, was defeated. The convention was thus convened without the consent of the people; a thing which had never before been done in Virginia.
Delegates were chosen for Western Virginia. They were nearly all opposed to secession, and worked to defeat
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it in the convention. Finding their efforts in vain, they returned home, some of them escaping many dangers and overcoming much difficulty on the way. The action of the Virginia convention was kept secret for sometime, while state troops, and troops from other states, were. seizing United States arsenals and other government property in Virginia. But when the delegates returned to their homes in Western Virginia with the news that Virginia had joined the Southern Confederacy, there was much excitement, and a widespread determination among the people not to be transferred to the confederacy. Meet- ings were held; delegates were chosen to a convention in Wheeling to meet June 11 for the purpose of reorganizing the government of Virginia. The government which had existed there had gone over to the Southern Confederacy. The chief purpose was to save as much of Virginia as possible from joining the south, and to take such measures for the public safety as might be deemed necessary.
Owing to the peculiar circumstances in which the state of Virginia was placed, part in and part out of the Southern Confederacy, the constitution of 1850 did not apply to the case, and certainly did not authorize the reorganization of the state government in the manner in which it was about to be done. No constitution and no statute had ever been framed to meet such an emergency. The proceeding undertaken by the Wheeling convention was authorized by no written law, and so far as the statutes of the state. contemplated such a condition, they forbade it. But, as the gold which sanctified the Temple wasgreater than the Temple, so men who make the law are greater than the law. The principle is dangerous when acted upon by bad men; but patriots may, in a crisis which admits of no delay, be a law unto themselves. The people of Western Virginia saw the storm; saw the only salvation, and with promptness and wisdom they seized the helm and made for the harbor.
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The constitution of Virginia did not apply. The Wheel- ing convention passed an ordinance for the government of the reorganized state. This ordinance could scarcely be called a constitution, yet it was a good temporary sub- stitute for one. It authorized the convention to appoint a governor and lieutenant governor to serve until their successors were elected and qualified. They were to administer the existing laws of Virginia. The general assembly was called to meet in Wheeling, where it was to provide for the election of a governor and lieutenant governor. The capital of Virginia was thus changed from Richmond to Wheeling, so far as this convention could change it. The senators and assemblymen who had been chosen at the preceeding election were to constitute the legislature. A council of five was appointed by the con- vention to assist the governor in the discharge of his duties. An allusion to the state constitution, made in this ordinance, shows that the convention considered the Virginia con- stitution of 1850 still in force, so far as it was applicable to the changed conditions. There was no general and immediate change of county and district officers provided for; but an oath was required of them that they would support the constitution of the United States. Provision was made for removing from office such as refused to take the oath, and for appointing others in their stead.
Under and by virtue of this ordinance the convention elected Francis H. Pierpont governor of Virginia, Daniel Polsley lieutenant governor, and James S. Wheat attorney · general. Provision having been made by the general assembly which met in Wheeling for an election of dele- gates to frame a constitution for the new state of West Virginia, provided a vote of the people should be in favor of a new state, and the election having shown that a new state was desired, the delegates to the constitutional con- vention assembled in Wheeling November 26, 1861. The purpose at first had not bee i to form a new state, but to
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reorganize and administer the government of Virginia. · But the sentiment in favor of a new state was strong, and resulted in the assembling of a convention to frame a con- stitution. The list of delegates were, Gordon Batelle, Ohio county; Richard L. Brooks, Upshur; James H. Brown, Kanawha; John J. Brown, Preston; John Boggs, Pendleton; W. W. Brumfield, Wayne; E. H. Caldwell, Marshall; Thomas R. Carskadon, Hampshire; James S. Cassady, Fayette; H. D. Chapman, Roane; Richard M. Cooke, Mercer; Henry Dering, Monongalia; John A. Dille, Pres- ton; Abijah Dolly, Hardy; D. W. Gibson, Pocahontas; S. F. Griffith, Mason; Stephen M. Hansley, Raleigh; Robert Hogar, Boone; Ephaim B. Hall, Marion; John Hall, Mason; Thomas W. Harrison, Harrison; Hiram Haymond, Marion; James Hervey, Brooke; J. P. Hoback, McDowell; Joseph Hubbs, Pleasants; Robert Irvine, Lewis; Daniel Lamb, Ohio; R. W. Lauck, Wetzel; E. S. Mahon, Jackson; A. W. Mann, Greenbrier; John R. Mccutcheon, Nicholas; Dudley S. Montague, Putnam; Emmett J. O'Brien, Barbour; Granville Parker, Cabell; James W. Parsons, Tucker; J. W. Paxton, Ohio; David S. Pinnell, Upshur; Joseph S. Pomeroy, Hancock; John M. Powell, Harrison; Job Robin- son, Calhoun; A. F. Ross, Ohio; Lewis Ruffner Kanawha; Edward W. Ryan, Fayette, George W. Sheets, Hampshire; Josiah Simmons, Randolph; Harmon Sinsel Taylor; Benja- min H. Smith, Logan; Abraham D. Soper, Tyler; Benja- min L. Stephenson, Clay; William E. Stevenson, Wood; Benjamin F. Stewart, Wirt; Chapman J. Stewart, Dod- dridge; G. F. Taylor, Braxton; M. Titchenell, Marion; Thomas H. Trainer, Marshall; Peter G. Van Winkle, Wood; William Walker, Wyoming; William W. Warder, Gilmer; Joseph S. Wheat, Morgan; Waitman T. Willey, Monongalia; A. J. Wilson, Ritchie; Samuel Young, Poca- hontas.
There were two sessions of this conventior, the first in the latter part of 1861; the second beginning February 12,
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1863. The constitution was completed at the first session, as was supposed; but when the question of admitting the state into the Union was before congress, that body re- quired a change of one section regarding slavery, and the convention was reconvened and made the necessary change.
When the convention assembled November 15, 1861, it set about its task. The first intention was to name the. new state Kanawha, but there being objections to this, the name of Augusta was suggested. Then Alleghany, Western Virginia, and finally the name West Virginia was chosen. Selecting a name for the new state was not the most difficult matter before the convention. Very soon the question of slavery came up. The sentiment against that institution was not strong enough to exclude it from the state. No doubt a majority of the people would have voted to exclude it, but there was a strong element not yet ready to dispense with slavery, and a division on that question was undesirable at that time. Accordingly, the constitution dismissed the slavery question with the pro- vision that no slave should be brought into the state, nor free negroes come into the state after the adoption of the constitution. Before the constitution was submitted to a vote of the people, it was changed to provide for the emancipation of slaves.
The new constitution had a provision which was never contained in the constitutions of Virginia; it affirmed that West Virginia shall remain a member of the United States. When this constitution was framed, it did not regard Hampshire, Hardy, Pendleton, and Morgan a sparts of the state, but provided that they might become parts of West Virginia if they voted in favor of adopting the constitution. They so voted, and thus came into the state. The same provision was made in regard to Frederick county, but it chose to remain a portion of Virginia. It was declared the itt freedom of the press and of speech,
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and the law of libel was given a liberal interpretation, and was rendered powerless to curtail the freedom of the press. It was provided that in suits of libel, the truth could be given in evidence, and if it appeared that the mat- ter charged as libellous was true, and was published with good intentions, the judgment should be for the defendant in the suit. The days of viva voce voting were past. The ' constitution provided that all voting should be by ballot. The legislature was required to meet every year.
A clause was inserted declaring that no persons who had aided or abetted the Southern Confederacy should be- come citizens of the state, unless such persons had subse- quently volunteered in the army or the navy of the United States. This measure seems harsh when viewed from afteryears when the passions kindled by the civil war have cooled, and the prejudice and hatred have become things of the past. It must be remembered that the constitution came into existence during the war. The better judg- ment of the people at a later day struck out that clausc. But at the worst, the measure was only one of retaliation, in remembrance of the tyranny recently shown within this state toward loyal citizens and office holders by sympathizers of the Southern Confederacy. The over- bearing spirit of the politicians of Richmonnd found its echo west of the Alleghanies. Horace Greeley had been deterred from delivering a lecture in Wheeeling on the issues of the day, because his lecture contained references to the slavery question. In Ohio county at that time, those who opposed slavery were in the majority, but not in power. There were not fifty slave holders in the county. Horace Greeley was indicted in Harrison county because he had caused the Tribune, his newspaper, to be circulated there. The agent of the Tribune fled from the state to escape arrest. Postmasters, acting as they claimed under the laws of Virginia, refused to deliver to subscribers such papers as the New York Tribune and the
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New York Christian Advocate. A Baptist minister who had taught colored children in Sunday school was for that act ostracized, and he left Wheeling. Newsdealers in Wheeling were afraid to keep on their shelves a statistical book written by a North Carolinian, because it treated of slavery in its economic aspect. Dealers were threatened with indictment if they handled the book. Cassius Clay of Kentucky was threatened with violence for coming to Wheeling to deliver a lecture which he had delivered in his own state. The newspapers of Richmond reproached Wheeling for permitting such a paper as the Intelligencer to be published there.
These instances of tyranny from southern sympathizers are given, not so much for their value as simple history, as to show the circumstances under which West Virginia's first constitution was made, and to give an insight into the partisan feeling which led to the insertion of the clause dis- franchising those who took part against the United States. Those who upheld the union had in the meantime come into power, and in turn had become the oppressors. Re- taliation is never right as an abstract proposition, and sel- dom best so as a political measure. An act of injustice should not be made a precedent or an excuse for a wrong perpetrated upon the authors of the unjust act. Time has done its part in committing to oblivion the hatred and the wrong which grew out of the civil war. Under West Vir- ginia's present constitution, no man has lesser or greater political powers because he wore the blue or the grey.
Representation in the state senate and house of dele- gates was in proportion to the number of people. The question of the "white basis," or the "mixed basis," as contained in the Virginia constitution of 1850, no longer troubled West Virginia. Suffrage was extended until the people elected their officers, state county and district, in- cluding all judges.
The constitution provide 1 for free schools, and author-
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ized the setting apart of an irreduceable fund for that pur- pose. The fund is derived from the sale of delinquent lands; from grants and devises, the proceeds of estates of · persons who die without will or heirs; money paid for ex- emption from military duty; such sums as the legislature may appropriate, and from other sources. This is in- vested in United States or state securities, and the interest is annually appropriated to the support of the schools. The principal must not be expended.
The constitution was submitted to the people for ratifi- cation in April, 1863, and the vote in favor of it was 18,862, and against it 514. Jefferson and Berkeley counties did not vote. They had not been represented in the conven- tion which formed the constitution. With the close of the war, Virginia claimed them, and West Virginia claimed them. The matter was finally settled by the supreme court of the United States in 1870, in favor of West Vir- ginia. It was at one time considered that the counties of Northampton and Accomack on the eastern shore of Vir- ginia belonged to the new state of West Virginia because they had sent delegates to the Wheeling convention for the reorganization of the state government. It was once pro- posed that these two counties be traded to Maryland in exchange for the two western counties in that state which were to be added to West Virginia; but the trade was not consummated.
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