USA > West Virginia > Barbour County > The history of Barbour County, West Virginia, from its earliest exploration and settlement to the present time > Part 11
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51
The slave had a still more severe punishment for stealing hogs. For the first offense he received "thirty-nine lashes on the bare back, well laid on, at the public whipping-post." For the second offense he was nailed by the ears to a post, and after two hours of torture, had his ears cut off. For the third offense he was put to death. The law provided that if a negro or Indian were put on the stand as a witness against a person accused of steal- ing hogs, and did not tell the truth, he should be whipped, nailed to a post, his ears cut, and if he still testified falsely, he paid the penalty with his life. It is not provided how the court shall be led to the knowledge whether or not the witness had told the truth. It appears that the judge was presumed to be infallible in separating false from true testimony in trials for hog-stealing. After a hog had been stolen and killed, the relent- less law still followed it to try to discover if some one else might not be punished. If a person bought, or received into his possession, a hog from which the ears had been removed, he was adjudged guilty of hog-stealing,
86
AMONG OLD LAWS.
unless he could prove that the hog was his own property. There was also a law forbidding any one from purchasing pork of Indians unless the ears went with the pork. There would be some inconvenience in retailing pork under this restriction, as it would require a skillful butcher to so cut up a hog that each ham, shoulder, side and the sausage should retain the ears.
If stealing hogs was a crime almost too heinous to be adequately pun- ished in this world, horse-stealing was so much worse that the law-makers of Virginia would not undertake to provide a law to reach the case. They, therefore, enacted a law, December 10, 1792, that the convicted horse-thief must be put to death; and, in order that he should certainly reach eternal punishment beyond death, he was forbidden to have spiritual advice. The language of the law is that the horse thief shall be "utterly excluded."
An Act of unnecessary severity was passed December 22, 1792, against negroes who should undertake to cure the sick. It is reasonable and right that the law should carefully guard the people against harm from those who ignorantly practice medicine; but to us of the present day it appears that a less savage law would have answered the purpose. It was provided that any negro who prepared, exhibited, or administered medicine should be put to death without benefit of clergy. It was provided, however, that a negro might, with the knowledge and consent of his master, have medi- cine in his possession.
The law of Virginia required every county to provide a Court-House, Jail, Pillory, Whipping Post, Stocks and a Ducking Stool. But the Duck- ing Stool might be dispensed with if the County Court saw fit to do so. The Whipping Post was the last of these relics of barbarism to be removed. So far as can be ascertained the last public and legalized burning of a convicted man in West Virginia occurred in July, 1828, in the old Court-House in Hampshire County. A negro slave, named Simon, the property of David Collins, was tried on a charge of assault. The record does not show that he had a jury. The court found him guilty and ordered the Sheriff to burn him on the hand and give him one hundred lashes, chain him, and keep him on "coarse and low diet." The minutes of the court state that the Sheriff "immediately burned him in the hand in the presence of the court," and gave him then and there twenty-five lashes. The remaining seventy- five were reserved for future days.
It is but justice to the law-makers of Virginia, and the people at that time, to state that nearly all of those severe laws came from England, or were enacted in the colony of Virginia many years before the Revolutionary War. Some of them date back to the time of Cromwell, or even earlier. Although the people of Virginia took the lead in the movement for greater liberty, both mental and physical, they could not all at once cut loose from the wrecks of past tyranny. They advanced rapidly along some hnes, but slowly along others. They found those old laws on the statute books, and re-enacted them, and suffered them to exist for a generation or more. But we should not believe that such men as Patrick Henry, Edmund Randolph, Thomas Jefferson, George Washington and the other statesmen and patriots of that time believed that a man should be nailed to a post for stealing a pig, or that the crime of stealing a hymn book from a church should be pun- ished with death without benefit of clergy.
A law passed near the close of the last century, and still in force in 1819, provided Sheriff's fees on a number of items, among which were the following: For making an arrest, sixty-three cents; for pillorying a crimi-
87
AMONG OLD LAWS.
nal, fifty-two cents; for putting a criminal in the stocks, twenty-one cents; for ducking a criminal in pursuance of an order of court, forty-two cents; for putting a criminal in prison, forty-two cents; for hanging a criminal, five dollars and twenty-five cents; for whipping a servant, by order of court, to be paid by the master and repaid to him by the servant, forty-two cents; for whipping a free person, by order of court, to be paid by the per- son who received the whipping, forty-two cents; for whipping a slave, by order of court, to be paid by the county, forty-two cents; for selling a ser- vant at public outcry, forty-two cents; for keeping and providing for a debtor in jail, each day, twenty-one cents.
It was more expensive to be whipped or pilloried by the Sheriff than by a Constable, although there is no evidence that the Sheriff did the work any more effectively. Since the person who received the punishment usu- ally paid the fees of the officer who performed the service, it is probable that such person preferred being whipped or nailed to a post by a Consta- ble, because it was less expensive. Some of the Constable's fees are shown below: For putting a condemned man in the stocks, twenty-one cents; for whipping a servant, twenty-one cents; for whipping a slave, to be paid by the master, twenty-one cents; for removing a person likely to become a charge on the county, per mile, four cents.
Within the past century several important changes have taken place in the laws under which West Virginia has been governed. An Act of As- sembly, passed November 29, 1792, provided that in cases where a person is suspected of having committed a murder, and the Coroner's jury recom- mend that he be held for trial, and he eludes arrest, the Corouer must seize his house and property and hold them until he surrenders himself or is arrested. Where a defendant was found guilty the costs of the prosecution was collected by sale of his property, if he had any property; but he might pay cost and thus save his property. No Constable, miller, surveyor of roads or hotel-keeper was eligible to serve on a grand jury. A law passed January 16, 1801, provided a fine of five dollars as a penalty for killing deer between January 1 and August 1 of each year. A law enacted January 26, 1814, provided that sheep-killing dogs should be killed. If the owner pre- vented the execution of the law upon the dog he was subject to a fine of two dollars for each day in which he saved the life of the dog. The bounty on wolves was made six dollars for each scalp, by a law passed February 9, 1819. But the bounty was not always the same, nor was it uniform through- out the counties of Virginia. Each county could fix the bounty within its jurisdiction. A law of January 16, 1802, provided a fine of thirty dollars for setting the woods on fire; and a law of January 4, 1805, punished by a fine of ten dollars the catching of fish iu a seine between May 15 aud August 15.
There was a severe law passed by the Virginia Legislature February 22, 1819, for the benefit of tavern-keepers. It provided a fine of thirty dol- lars for each offense, to be levied against any person not a licensed tavern- keeper, who should take pay from a traveler for entertaiment given. Not only was this law in force in and near towns, but also within eight hundred yards of any public road. There was a law enacted by the Assembly of Virginia December 24, 1796, which was intended to favor the poor people. It is in marked contrast with many of the laws of that time, for they were generally not made to benefit the poor. The law had for its object the aid- ing of persons of small means in reaching justice through the courts. A
88
AMONG OLD LAWS.
man who had no money had it in his power to prosecute a suit against a rich man. He could select the court in which to have his case tried; the court furnished him an attorney free; he was charged nothing for his sub- ponas and other writs; and he was not charged with costs in case he lost his suit. A law similar to that is still in force in West Virginia.
In 1792 an Act was passed by the Virginia Legislature establishing fer- ries across the principal streams of the State, and fixing the rate of toll. The State was in the ferry business strictly for the money in it. The law provided that no person should operate a private ferry for profit where he would take patronage from a public ferry. The penalty for so doing seems unnecessarily severe. The person who undertook to turn a few dimes into his own pocket by carrying travelers across a river, where those travelers might go by public ferry, was fined twenty dollars for each offense, half of it to go to the nearest public ferryman and the other half to the person who gave the information; and in case the public ferryman gave the informa- tion, the entire fine went into his pocket. It will readily be surmised that the public ferryman maintained a sharp lookout for private boats which should be so presumptuous as to dare enter into competition for a portion of the carrying trade, and it is equally probable that competition with pub- lic service soon became unpopular, when a man might receive five cents for carrying a traveler across a river and to be fined twenty dollars for it.
Messengers and other persons on business for the State were not required to pay toll, and they must be carried across immediately, at any hour of the day or night. But, as a precaution against being imposed upon by persons falsely claiming to be in the service of the State, the ferryman was authorized to demand proof, which the applicant was obliged to fur- nish. This proof consisted of a letter, on the back of which must be writ- ten "public service," and must be signed by some officer, either in the civil or military service of the State. Inasmuch as the punishment for forgery at that time was death, it is improbable that any person would present forged documents to the ferryman in order to save a few cents toll. The men who kept the ferries enjoyed some immunities and privileges denied to the masses. They were exempt from work on the public roads. They were not required to pay county taxes, but whether this privilege was ex- tended only to poll tax, or whether it applied also to personal property and real estate, is not clear from the reading of the regulations governing the business. They were exempt from military service due the State, and they were excused from holding the office of Constable.
FIRST COURT-HOUSE IN WEST VIRGINIA, Hampshire County.
63
79
80
64
37
36
65
59
35
58
15
14
42
67
57
27
2
25
5.
50
--
.0
.
75
74
MEMBERS OF THE CONSTITUTIONAL CONVENTION OF 1872.
1 Samuel Price, 2 Wm. K. Pendleton, 3 James S. Wheat, 4 Charles J. Faulkner 5 Samuel Woods, 6 Nicholas Fitzhugh, 7 James M. Jackson, 8 William H. Travers, .A. F. Haymond, 10 Benjamin Wilson, 11 James D. Armstrong, 12 A. J. Pawnell, 13 J. M. Byrnside, 14 D. D. Johnson, 15 W. T. Willey, 16 Logan Osborn, 17 Alexander Campbell, 18 W. W. Miller, 19 C. W. Ferguson, 20 E. B. Knight, 21 B. F. Martin, 22 Okey Johnson, 23 C. B. Waggener, 24 Evermont Ward, 25 H. M. Dickenson, 26 H. M. Mathews, 27 James M. Pipes, 28 Thomas Maslin, 29 John Blair Hoge, 30 John Bassel, 31 Thomas Thornburg, 32 William Haynes, 33 Isaiah Bee, 34 Lewis Allen, 35 John A. Warth, 36 G. H. Moffett, 37 U. N. Arnett, 38 Septimus Hall, 39 Wm. Price, 40 H. A. Holt, 41 D. D. T. Farnsworth, 42 J. F. Harding, 43 A. H. Thayer, 44 J. J. Thompson, 45 B. W. Byrne, 46 D. A. Roberts, 47 Fountain Smith, 48 Charles D. Boggs, 49 D. H. Leonard, 50 George O. Davenport, 51 William G. Brown, 52 John H. Atkinson, 53 Wm. D. Pate, 54 Blackwell Jackson, 55 A. W. McCleary, 56 Wm. A. Morgan, 57 Charles Kantner, 58 John T. Pearce, 59 Joseph Snyder, 60 Hanson Criswell, 61 J. P. Strickler, 62 J. M. Hagans, 63 Alonzo Cushing, 64 James Calfee, 65 M. A. Staton, 66 Thomas R. Park, 67 Alexander Monroe, 68 Lemuel Stump, 69 J. A. Robinson, 70 Thomas Ferrell, 71 J. N. B. Crim, 72 David A. Pugh, 73 J. F. Randolph, 74 J. W. Gallaher, 75 W. G. H. Core, 76 Wm. McCreery, 77 B. H. Lurty, 78 A.J.Cunningham, Sergeant-at-Arms, 79 B. H. Butcher, Clerk, 80 Barney Galligan, Assist- ant Clerk, 81 D. J. Wetzel, Door-keeper.
41
3
CHAPTER X,
- -: 0:
CONSTITUTIONAL HISTORY.
The territory now embraced in the State of West Virginia has been governed under five State constitutions, three of Virginia's and two of West Virginia's. The first was adopted in 1776, the second in 1830, the third in 1851, the fourth in 1863, the fifth in 1872. The first constitution was passed by the Virginia Convention, June 29, 1776, five days before the signing of the Declaration of Independence. Virginia had taken the lead in declaring the United States independent and capable of self-government; and it also took the lead in preparing a system of government for itself. The consti- tution passed by its convention in 1776 was one of the first documents of the kind in the world, and absolutely the first in America. Its aim was lofty. It had in view greater liberty than men had ever before enjoyed. The document is a masterpiece of statesmanship, yet its terms are simple. It was the foundation on which nearly all the State constitutions have been oased. It was in force nearly fifty years, and not until experience had shown wherein it was defective was there any disposition to change it or form a new constitution. Viewed now in the light of nearly a century and a quarter of progressive government, there are features seen in it which do not conform to the ideas of statesmen of today. But it was so much better, at the time of its adoption, than anything gone before that it was entirely satisfactory.
A Bill of Rights preceded the first constitution. On May 15, 1776, the Virginia Convention instructed its delegates in Congress to propose to that body to declare the United Colonies independent, and at the same time the Convention appointed a committee to prepare a Declaration of Rights and a plan of government for Virginia. On June 12 the Bill of Rights was passed. The document was written by George Mason, member of the com- mittee. This state paper is of interest, not only as being one of the earliest of the kind in America, but because it contains inconsistencies which in after years clung to the laws of Virginia, carrying injustice with them, un- til West Virginia, when it became a State, refused to allow them to become part of the laws of the new Commonwealth. The chief of these inconsis- tencies is found in the just declaration at the outset of the Bill of Rights, "that all men are by nature equally free and independent;" and yet further on it paves the way for restricting the privilege of suffrage to those who own property, thereby declaring in terms, if not in words, that a poor man is not as free and independent as a rich man. Here was the beginning of the doctrine so long held in Virginia by its law-makers, that a man without property should not have a voice in the government. In after years this doctrine was combated by the people of the territory now forming West
90
CONSTITUTIONAL HISTORY.
Virginia. The inhabitants west of the Blue Ridge, and especially west of the Alleghanies, were the champions of universal suffrage, and they labored to attain that end, but with little success until they were able to set up a government for themselves, in which government men were placed above property. Further on in this chapter something more will be found on this subject.
The Bill of Rights declares that the freedom of the press is one of the chief bulwarks of liberty. This is in marked contrast with and a noticeable advance beyond the doctrine held by Sir William Berkeley, one of Virginia's royal governors, who solemnly declared, "I thank God we have not free schools or printing, and I hope we will not have these hundred years, for learning has brought disobedience and heresy and sects into the world, and printing has divulged them and libels against the government. God keep us from both." This solemn protest of Virginia's Goveruor was made nearly forty years after the founding of Harvard University in Massa- chusetts. It has been sometimes cited as an illustration of the difference between the Puritan civilization in Massachusetts and the Cavalier civiliza- tion of Virginia. But the comparison is unfair. It was no test of Virginia's civilization, for the Governor was carrying out instructions from England to suppress printing, and he did not consult the people of the colony whether they wanted printing presses or not. But when a printer, John Buckner by name, ten years after Governor Berkeley asked divine protec- tion against schools and printing, ventured into Virginia with a press he was promptly brought before the Governor and was compelled to give bond that he would print nothing until the King of England gave consent.
In view of this experience it is not to be wondered at that the Virgin- ians were prompt in declaring in their Bill of Rights that the press should be free. But they did not embrace that excellent opportunity to say a word in favor of schools. Nor could they, at one sweep, bring themselves to the broad doctrine that property does not round off and complete the man, but that "a man's a man for a' that," and capable, competent and trustworthy to take full part in the affairs of government. This Bill of Rights was brought into existence in the early part of the Revolutionary War, and at that very time the bold, patient, patriotic and poor backwoodsmen from the frontiers were in the American armies, fighting and dying in the cause of liberty and equal rights; and yet, by laws then being enacted, these same men were denied the right to take part in the management of the govern- ment which they were fighting to establish. It was for no other reason than that they were not assessed with enough property to give "sufficient evidence of permanent common interest with and attachment to the com- munity." This notion had been brought from England, and had been fast- ened upon the colony of Virginia so firmly that it could not be shaken off when that State severed the political ties which bound it to the mother country. The idea clung to the constitution passed in 1776; to that of 1830; to that of 1851; but sentiment against the property qualification for suffrage constantly grew, and particularly among the people of Western Virginia, until it manifested itself in striking the obnoxious clause from the consti- tution when the State of West Virginia came into separate existence.
If the War of the Revolution did not teach the statesmen of Virginia that the poor man can be a patriot, and if the thirty-five or more years inter- vening between the adoption of the constitution of 1776 and the second war with England had not sufficed to do so, it might be supposed that the new
91
CONSTITUTIONAL HISTORY.
experience of the War of 1812 would have made the fact clear. But it did not convince the law-maker. Virginia was speedily invaded by the British after the declaration of war, and some of the most valuable property in the State was destroyed, and some of the best territory was overrun by the enemy. The city of Washington, just across the Potomac from Virginia, was captured and burned. An ex-President of the United States was com- pelled to hide in the woods to avoid capture by the enemy. In this critical time no soldiers fought more valiantly, none did more to drive back the invader, than the men from Western Virginia, where lived most of those who were classed too poor to take part in the affairs of government. It is said that sometimes half the men in a company of soldiers had never been permitted to vote because they did not own enough property.
The people of Western Virginia felt the injustice keenly. They never failed to respond promptly to a call when their services were needed in the field, but in time of peace they sought in a lawful and decent manner the redress of their grievances. They could not obtain this redress under the constitution then in force, and the War of 1812 had scarcely come to a close when the subject of a new constitution began to be spoken of. It was agi- tated long in vain. Nor was the restriction of suffrage the only wrong the people of Western Virginia endured, somewhat impatiently, but always with full respect for the laws then in force.
The eastern part of Virginia had the majority of inhabitants and the largest part of the property, and this gave that portion of the State the majority in the Assembly. This power was used with small respect for the rights of the people in the western part of the State. Internal improve- ments were made on a large scale in the east, but none were made west of the mountains, or very few. Men in the western counties had little encour- agement to aspire to political distinction. The door was shut on them.' The State offices were filled by men from the wealthy eastern districts. At length the agitation of the question of a new constitution ripened into results. The Assembly of Virginia in 1828 passed a bill submitting to a vote of the people whether they would have a constitutional convention called. At the election there were 38,542 votes cast, of which 21,896 were in favor of a constitutional convention. By far the heaviest vote favoring the convention was cast west of the Blue Ridge. The wealthy slave-owners of the lower counties wanted no change. The constitution had been framed to suit them, and they wanted nothing better. They feared that any change would give them something less suitable. Nevertheless, when the votes were counted and it was ascertained that a new constitution was inevitable, the representatives of the wealth of the State set to work to guard against any invasion of the privileges they had so long enjoyed.
The delegates from what is now West Virginia elected to this conven- tion were: E. M. Wilson and Charles S. Morgan, of Monongalia County; William McCoy, of Pendleton County; Alexander Campbell and Philip Dod- dridge, of Brooke County; Andrew Beirne, of Monroe County; William Smith, of Greenbrier County; John Baxter, of Pocahontas; H. L. Opie and Thomas Griggs, of Jefferson; William Naylor and William Donaldson, of Hampshire; Philip Pendleton and Elisha Boyd, of Berkeley; E. S. Duncan, of Harrison: John Laidley, of Cabell; Lewis Summers, of Kanawha; Adam See, of Randolph. The leader of the western delegates in the convention was Philip Doddridge, who did all in his power to have the property qualifi- cation clause omitted from the new constitution.
92
CONSTITUTIONAL HISTORY,
The convention met at Richmond, October 5, 1829. From the very first meeting the western members were slighted. No western man was named in the selection of officers of the convention, It was seen at the outset that the property qualification for suffrage would not be given up by the eastern members without a struggle, and it was soon made plain that this qualifica- tion would have a majority, It was during the debates in this convention that Philip Doddridge, one of West Virginia's greatest men, came to the front in his full stature. His opponents were Randolph, Leigh, Upshur, Tazewell, Standard and others, who supported the doctrine that a voter should be a property-owner. One of Doddridge's colleagues was Alexander Campbell, the founder of the Church of the Disciples of Christ, sometimes known as the Christian Church, and again called, from its founder, the Campbellite Church. Here were two powerful intellects, Doddridge and Campbell, and they championed the cause of liberty in a form more ad- vanced than was then allowed in Virginia. Doddridge himself had followed the plow, and he felt that the honest man does not need a certain number of acres before he can be trusted with the right of suffrage .. He had served in the Virginia Legislature and knew from observation and experience the needs of the people in his part of the State. He was born on the bank of the Ohio River two years before the backwoodsmen of Virginia annulled the Quebec Act, passed by the Parliament of England, and he had grown to manhood in the dangers and vicissitudes of the frontiers. He was but five years old at the first siege of Fort Henry, and was ten years old at the second siege; and the shot which brought down the last British flag that floated above the soil of Virginia during the Revolutionary War was fired almost within hearing of his home. Among his neighbors were Lewis Wetzel, Ebenezer Zane, Samuel Brady and the men who fought to save the homes of the frontier settlers during the long and anxious years of Indian warfare. Although Doddridge died two years after this convention, while serving in Congress, he had done enough to give West Virginia reason for remembering him. The work of Campbell does not stand out in so conspic- uous a manner in the proceedings of the convention, but his influence for good was great; and if the delegates from west of the mountains labored in vain for that time, the result was seen in later years.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.