USA > West Virginia > Randolph County > The history of Randolph County, West Virginia. From its earliest settlement to the present, embracing records of all the leading families, reminiscences and traditions > Part 12
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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 ques- tion 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 Legisla- ture 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
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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 be- came apparent that a sentiment in that body was in favor of electing many or all of the County 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 leadership 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 increase of power there was an increase also in their responsibility, Both are wholesome stimu- lants for the citizens of a commonwealth who are rising to new ideas and higher principles. The constitution of 1850 is remarkable for the general advance embodied in it. The experience of nearly half a century has shown that many improvements 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 became the foundation for State gov- ernment in Virginia. The Bill of Rights, passed in 1776 and adopted with- out 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 required 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 suf- frage was not placed in the constitution. Although a provision was made to foist a property clause on the State to take effect in 1865, the great and unexpected change made by the Civil War before the year 1865 rendered this provision of no force. The leading features of the "mixed basis" and "white basis," as contemplated by the constitution, were: In 1865 the peo- ple, by vote, were to decide whether the members of the State Senate and Lower House should be apportioned in accordance with the number of voters, without regard to property, 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 appor- tionment 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 Senators 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 Vir- ginia 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 popu- lous 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 separated 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
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members of the Senate might be apportioned solely on the basis of taxa- tion, if the people so decided by vote.
Under the constitution free negroes were not permitted to reside in Vir- ginia unless free at the time the constitution went into effect. Slaves there- after manumitted forfeited 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 Governor 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 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 pro- vided 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 consti- tution of 1850 the Auditor, Treasurer and Secretary were selected by the Legislature.
The first constitution of West Virginia was a growth rather than a crea- tion 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 Vir- ginia, which had refused to follow the old State when it seceded from the Union. Elsewhere in this volume will be found a narrative 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 the 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 presi- dential 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 slipping away, and the North was in the ascendancy with its doctrines of no further extension of slavery. There were four can- didates in the field, and the Republicans elected Abraham Lincoln. 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 South- ern States hastened the crisis, and in its result slavery was stamped out. South Carolina led the revolt by a resolution December 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. Gov- ernor Letcher, of Virginia, called an extra session of the Legislature to 7
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meet January 7, 1861, to consider public affairs. The Legislature passed a bill calling a convenion of the people of Virginia, whose delegates were to be elected February 4, to meet in Richmond, February 13, 1861. A substi- tute 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 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 some time, 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 deter- mination among the people not to be transferred to the Confederacy. Meetings were held, delegates were chosen to a convention in Wheeling to meet June 11 for the purpose of re-organizing the government of Virginia.
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 re-or- ganization 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 was greater 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 they seized the helm and made for the harbor.
The constitution of Virginia did not apply. The Wheeling Convention passed an ordinance for the government of the re-organized State. This ordinance could scarcely be called a constitution, yet it was a good tempo- rary substitute 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 that con- vention could change it. The Senators and Assemblymen who had been chosen at the preceding election were to constitute the Legislature. A Council of Five was appointed by the convention 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 Consti- tution of 1850 still in force, so far as it was applicable to the changed condi- tions. There was no general and immediate change of county and district officers provided for, but an oath was required of them that they would sup- port the Constitution of the United States. Provision was made for remov-
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ing 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 delegates to frame a constitution for the 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 Conven- tion assembled in Wheeling November 26, 1861. The purpose at first had not been to form a new State, but to re-organize and administer the govern- ment of Virginia. But the sentiment in favor of a new State was strong, and resulted in the assemblimg of a convention to frame a constitution. 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; Ephraim B. Hall, Marion: John Hall, Mason; Thomas W. Harrison, Harrison; Hiram Hay- mond, 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. McCutch- eon, 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 Robinson, Calhoun; A. F. Ross, Ohio; Lewis Ruffner, Kana- wha; Edward W. Ryan, Fayette; George W. Sheets, Hampshire; Josiah Simmons, Randolph; Harmon Sinsel, Taylor; Benjamin H. Smith, Logan; Abraham D. Soper, Tyler; Benjamin L. Stephenson, Clay; William E. Steven- son, Wood; Benjamin F. Stewart, Wirt; Chapman J. Stewart, Doddridge; G. F. Taylor, Braxton; M. Titchenell, Marion; Thomas H. Trainer, Mar- shall; Peter G. Van Winkle, Wood; William Walker, Wyoming; William W. Warder, Gilmer; Joseph S. Wheat, Morgan; Waitman T. Willey, Mononga- lia; A. J. Wilson, Ritchie; Samuel Young, Pocahontas.
There were two sessions of this convention, the first in the latter part of 1861, the second beginning February 12, 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 required a change of one section regarding slavery, and the convention was re-con- vened 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 Alle- ghany, 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 senti- ment 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
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constitution dismissed the slavery question with the provision 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 mem- ber of the United States. When this constitution was framed it did not regard Hampshire, Hardy, Pendleton and Morgan as parts 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 that there should be freedom of the press and of speech, and the law of libel was given a lib- eral 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 matter charged as libelous was true, and was published with good intentions, the judgement should be for the defendant in the suit. The days of viva voce voting were past. The con- stitution provided that all voting should be by ballot. The Legislature was required to meet every year.
A clause was inserted declaring that no person who had aided or abet- ted the Southern Confederacy should become citizens of the State unless such persons had subsequently volunteered in the army or the navy of the United States. This measure seems harsh when viewed from after years, 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 judgment of the people at a later day struck out that clause. 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 sympa thizers of the Southern Confederacy. The overbearing spirit of the politi- cians of Richmond found its echo west of the Alleghanies. Horace Greeley had been deterred from delivering a lecture in Wheeling 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 ma- jority, 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 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, be- cause 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 un-
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der which West Virginia's first constitution was made, and to give an in- sight 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. Retaliation is never right as an abstract proposi tion and seldom best 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 Virginia'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 Delegates was in pro- portion 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, including all judges.
The constitution provided for free schools, and authorized the setting apart of an irreduceable fund for that purpose. 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 exemption from military duty; such sums as the Legislature may appropriate, and from other sources. This is invested 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 ratification 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. convention which formed the constitution. With the close of the war Vir- ginia 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 Virginia. It was at one time considered that the counties of North- ampton and Accomack on the eastern shore of Virginia 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 proposed-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.
Under the constitution of 1863 the State of West Virginia was governed nine years, and there was general prosperity. But experience demonstra- ted that many of the provisions of the constitution were not perfect. Amendments and improvements were suggested from time to time, and there gradually grew up a strong sentiment in favor of a new constitution. On February 23, 1871, a call was issued for an election of delegates to a constitutional convention. The election was held in August of that year, and in January, 1872, the delegates met in Charleston and began the work. They completed it in a little less than three months.
The following delegates were elected by the various senatorial and assembly districts of the State: Brooke County, Alexander Campbell, William K. Pendleton; Boone, William D. Pate; Braxton, Homer A. Holt; Berkeley, Andrew W. McCleary, C. J. Faulkner, John Blair Hoge; Barbour, Samuel Woods, J. N. B. Crim; Clay, B. W. Byrne; Calhoun, Lemuel Stump; . Cabell, Evermont Ward, Thomas Thornburg; Doddridge, Jeptha F. Ran-
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dolph; Fayette, Hudson M. Dickinson; Greenbrier, Henry M. Mathews, Samuel Price; Harrison, Bejamin Wilson, Beverly H. Lurty, John Bassel; Hampshire, J. D. Armstrong, Alexander Monroe; Hardy, Thomas Maslin; Hancock, John H. Atkinson; Jefferson, William H. Travers, Logan Osburn, William A. Morgan; Jackson, Thomas R. Park; Kanawha, John A. Warth, Edward B. Knight, Nicholas Fitzhugh; Lewis, Mathew Edmiston, Black- well Jackson; Logan, M. A. Staton; Morgan, Lewis Allen; Monongalia, Waitman T. Willey, Joseph Snider, J. Marshall Hagans; Marion, U. N. Ar- nett, Alpheus F. Haymond, Fountain Smith; Mason, Charles B. Waggener, Alonzo Cushing; Mercer, Isaiah Bee, James Calfee; Mineral, John A. Rob- inson, John T. Pearce; Monroe, James M. Byrnsides, William Haynes; Mar- shall, James M. Pipes, J. W. Gallaher, Hanson Criswell; Ohio, George O. Davenport, William W. Miller, A. J. Pawnell, James S. Wheat; Putnam, John J. Thompson; Pendleton, Charles D. Boggs; Pocahontas, George H. Moffett; Preston, William G. Brown, Charles Kantner; Pleasants, W. G. H. Care; Roane, Thomas Ferrell; Ritchie, Jacob P. Strickler; Randolph, J. F. Harding; Raleigh, William Price, William McCreery; Taylor, A. H. Thayer, Benjamin F. Martin; Tyler, Daniel D. Johnson, David S. Pugh; Upshur, D. D. T. Farnsworth; Wirt, D. A. Roberts, David H. Leonard; Wayne, Charles W. Ferguson; Wetzel, Septimus Hall; Wood, James M. Jackson, Okey Johnson.
The new constitution of West Virginia enters much more fully into the ways and means of government than any other constitution Virginia or West Virginia had known. It leaves less for the courts to interpret and decide than any of the former constitutions. The details are elaborately worked out, and the powers and duties of the three departments of State government, the Legislative, Judicial and Executive, are stated in so pre- cise terms that there can be little ground for controversy as to what the constitution means. The terms of the State officers were increased to four years, and the Legislature's sessions were changed from yearly to once in two years. A marked change in the tone of the constitution regarding per- sons who took part in the Civil War against the government is noticeable. Not only is the clause in the former constitution disfranchising those who took part in the' Rebellion not found in the new constitution, but in its stead is a clause which repudiates, in express terms, the sentiment on this sub- ject in the former constitution. It is stated that "political tests requiring persons, as a pre-requisite to the enjoyment of their civil and political rights, to purge themselves, by their own oaths, of past alleged offenses, are repugnant to the principles of free government, and are cruel and op- pressive." The ex-Confederates and those who sympathized with and assisted them in their war against the United States could have been as effectively restored to their rights by a simple clause to that effect as by the one employed, which passes judgment upon a part of the former constitu- tion. The language on this subject in the new constitution may, therefore, be taken as the matured judgment and as an expression of the purer con- ception of justice by the people of West Virginia when the passions of the war had subsided, and when years had given time for reflection. It is pro- vided, also, that no person who aided or participated in the Rebellion shall be liable to any proceedings, civil or criminal, for any act done by him in accordance with the rules of civilized warfare. It was provided in the con- stitution of Virginia that ministers and priests should not be eligible to seats in the Legislature. West Virginia's new constitution broke down the bar-
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