Debates and Proceedings
of the
First Constitutional Convention
of West Virginia

January 14, 1862

Prayer by Rev. Josiah Simmons, member of the Convention.

The Minutes were read and approved.

The question was stated by the President to be upon the adoption of the amendment offered by Mr. Brown, of Kanawha, to the amendment of Mr. Lamb to the second section of the report of the Committee on the Legislative Department.

And the question being upon this amendment to the amendment the yeas and nays were demanded, and being seconded, the motion was decided in the negative - yeas 11, nays 33.

MR. HALL of Marion, moved that the vote be recorded, which was done as follows:

YEAS - Messrs. John Hall (President), Brown of Kanawha, Chapman, Hansley, Haymond, McCutchen, Ruffner, Stephenson of Clay, Soper, Taylor, Walker - 11

*See note. Volume II, page 219.

NAYS - Messrs. Brown of Preston, Brooks, Brumfield, Battelle, Dering, Dille, Dolly, Hall of Marion, Harrison, Hubbs, Hervey, Irvine, Lamb, Lauck, Montague, Mahon, O'Brien, Parsons, Parker, Paxton, Pomeroy, Robinson, Sinsel, Simmons, Stevenson of Wood, Stewart of Wirt, Sheets, Stuart of Doddridge, Trainer, Van Winkle, Warder, Wilson - 33.

The hour of 12 1/2 o'clock arriving, the Convention took a recess.

Upon the reassembling of the Convention,

The President stated the question as being on the motion of Mr. Lamb to substitute 54 for 46 as the number of the house of delegates.

MR. VAN WINKLE asked for a division of the question.

MR. SINSEL. If it would be in order, I would ask for a division of the question, first on striking out 46.

THE PRESIDENT. The question, then, will be first on striking out 46.

MR. POMEROY. I would like to know what we are going to insert afterwards. If we are going to insert 54, with a fair apportionment, I will go for striking out.

MR. SINSEL. The question is already settled. After striking out we will insert 54, and give each county a delegate.

THE PRESIDENT. The Convention has indicated very clearly its purpose to fill the blank with 54, if 46 is stricken out. That is the only reply that could be given to the gentleman from Hancock.

MR. HERVEY. I would ask the Chair whether a motion for reconsideration of the vote of last evening would now be in order by which the Convention decided to give to each county a delegate?

The Chair would have some doubt as to the peculiar way it stands now. The proposition is to strike out.

MR. VAN WINKLE. The whole amendment is before the Convention.

MR. LAMB. I moved to strike out 46 and insert 54 simply. That motion was amended on the motion of the gentleman from Doddridge by adding to my amendment a provision giving to each county a single delegate. Now if a motion is made to reconsider the motion of the gentleman from Doddridge to amend my amendment, according to authority which was read by the gentleman from Wood a motion to reconsider takes precedence to every thing else except a motion to adjourn. So if that motion is made, we have got to decide the matter.

MR. HERVEY. Do I understand the Chair to allow a motion of reconsideration ?

THE PRESIDENT. The Chair remarked that he had doubts about the motion being in order. Will the gentleman from Wood refer to that rule again.

MR. VAN WINKLE read the rule from Jefferson's manual: "When a motion has been once made and carried in the affirmative or negative, it will be in order for any member of the majority to move for a reconsideration thereof on the same or succeeding day; and such motion shall take precedence of all other questions except a motion to adjourn."

THE PRESIDENT. The motion will be in order.

MR. HERVEY. I move, sir, to reconsider the vote of yesterday by which each county was to be allotted a delegate. I voted with the majority.

The motion to reconsider was agreed to, ayes 20, noes 16.

MR. SINSEL. I move to amend the amendment of the gentleman from Ohio by inserting 47, and give that one to Greenbrier.

MR. STUART of Doddridge. The gentleman must recollect that there is an amendment pending to the amendment.

MR. LAMB. The motion of the gentleman from Doddridge is pending now. That has not been disposed of - the original motion the vote on which has just been reconsidered.

THE PRESIDENT. You are now just where you were previous to taking the vote on the motion of the gentleman from Doddridge. The question is now on the motion of the gentleman from Doddridge.

MR. PAXTON. I believe, sir, I have not occupied the time of this Convention on this question, and I shall now say only a few words in explanation of my position and my votes. I have cared very little from the first what number might be determined on as the number of the house of delegates, if the number was kept within reasonable bounds, provided the principle which we have heretofore adopted by an unanimous vote, I believe, of representation according to population be fairly and honestly applied. For that principle I do care. I voted for it and I desire also to vote for its fair and honest application. I cannot vote for a proposition that I think does not fairly carry out the principle. I have listened with a good deal of interest to the discussions on this question, and have listened particularly to the arguments of the gentlemen who have stood up here as the advocates of the smaller counties. I have listened to their remarks to ascertain why it was, what reason they could give for urging upon us the giving to these counties arbitrarily and without regard to population a delegate to which their numbers do not entitle them. Well, now, sir, what is the reason for the distinction? Was it urged on the score of justice to those counties? I think not, sir. Has it been urged upon us as a right to which they are entitled? I have not so understood the argument. What then has been the argument? Well, sir, simply an appeal to the magnanimity of the members of this Convention. We are appealed to be magnanimous. I would inquire of gentlemen whether or not that is a fair consideration to present to us in considering questions of such vital importance, when we are making the organic law of the State, making rules that ought to be founded in simple justice, to govern the future legislation of the State for a long period to come, as we hope. I do not desire to say that I do not wish to be magnanimous, but I wish to be just - not to one class of counties, but to all. I will not, if I know it, be magnanimous at the expense not only of justice but of principle. I cannot persuade myself that I have the right to be magnanimous to the few at the expense of the many. This is a constitutional convention; a convention of gentlemen assembled for the purpose of framing a constitution for the people of West Virginia. It appears to me, sir, that a question of magnanimity ought to have no influence whatever on our action. We have not the right to be magnanimous in these matters. It is our duty I think, to do equal and exact justice to all, without undertaking to exercise magnanimity either to this section or the other section, to this county or the other county.

Entertaining these views, I have uniformly voted against propositions that I thought did violence to the principle we have heretofore adopted, and adopted unanimously.

MR. SOPER. I do not put this right of the counties on magnanimity. I claim it to be a just right arising from their local organizations as counties.

MR. PAXTON. Will the gentleman allow me to ask whether he claims that it is right that Tucker, with a population less than 1400 should have a representation equal to a county of 7000?

MR. SOPER. I insist that this is a right because we have organized this Convention by admitting a delegate from Tucker claiming an equal right with every delegate on this floor. The right of the delegate from Tucker to be here is because the county of Tucker had an organization before this Convention was called. I remarked yesterday, sir, that the whole course of our proceedings on the part of committees with reference to counties was to treat them as equals. I will not repeat what I said yesterday on the subject; but by merely referring to it gentlemen will recollect what I said; and I now rise, sir, to assert that so far as my experience has gone in the formation of a legislature, of what they term the lower house, it has ever been the practice to have representation by counties - has ever been the practice. There may occasionally have been an exception to the general rule; but that would be a very extraordinary circumstance. Now gentlemen have argued this question apparently. If I have understood that argument, they argued it on the ground and supposition that we are to remain here as a State just as we are; that there is to be no alteration in the population of those counties when in our State; and hence they say here, you are, with your 300,000 inhabitants and your 44 counties, some of them containing a large and some a small population. Now let us take and put these small counties on anything like an equality of representation with your large counties. I beg gentlemen to bear in mind that when you fix the number of your delegates, that number will not be varied by any increase of population hereafter; and while gentlemen express a desire to have all the counties represented and while they are stretching, as they say, what they consider to be the rule that ought to govern on occasions of this kind - that they stretched it so far that if we have 54 it will only leave four counties out in the State - it does look to me that four ought not to detain this Convention a moment, particularly so when we recollect that these counties will be continually increasing in population and it will be but a short time before they will be up to what you admit would be a ratio that you would be willing to adopt.

There is another view on this subject. Many gentlemen have turned their attention to their own individual counties. I speak of gentlemen here from Mason, from Lewis and probably some other have been named, as having large fractional parts, and they talk about injustice. Well, now that is not really so. It would be injustice if we were now fixing a representation for all coming time. But gentlemen will recollect that another apportionment will probably be made in about eight years, and what will be the condition of things then, judging from past experience? Why the small counties, to which we now give a delegate will have such an increase of inhabitants as would entitle them to a delegate on the score of representation according to population. But where will these counties that have now a large fraction be? They would be the first to be provided for at the next apportionment. So you will see that what they now consider would be a disadvantage here, when the next apportionment takes place will prove an advantage. So that I apprehend if we look at it in the light of organizing our State there is no hardship that can be incurred on the part of the county having a large fraction, because she will get the benefit of that fraction at the very next apportionment.

Well, now, another reason why these counties ought to have a voice in your lower house. I remarked yesterday, gentlemen will bear in mind, that these additional members of counties apportioned according to representation would always protect the different interests of the State that wanted protection against any combination on the part of the small counties; and I also cited another check residing in the senate where the apportionment would be strictly in accordance with the financial interests of those concerns who seem to be putting such great stress on the wealth of the country. I do not want to repeat what I said yesterday on this subject; but I want to say this, that if you adopt the apportionment according to the ratio contained in the report of the committee, unless these small counties now get a delegate they never will get a delegate. Unless you are willing to believe, gentlemen, and which may prove true in your estimation, that all portions of the State will increase on the same ratio. If one portion of your State is to increase more than another, that portion that increases most will receive greater advantages when it comes to another apportionment on this principle here contained in the report of the committee. And I am confident that after every subsequent apportionment if the counties are not secured here now in a delegate, there will be more of them thrown out than there are now. That I apprehend will be an irresistible consequence.

Now, why should we not get right down and do the thing which gentlemen say they are desirous of doing if they can without violating principle, that is giving to every county a delegate? Particularly when we know that every county in the State must necessarily increase. There is, if we increase, counties that will be a matter of our own hereafter. I apprehend that no legislature that will assemble under our Constitution will get to the erection and creation of new counties without properly considering the rights and consequences that would result from it under our Constitution. And then again gentlemen will bear in mind that we have fixed a ratio of population which will entitle a county to admission. I hope, therefore, Mr. President, that gentlemen will look at this matter and see the consequences that will result from it and they will find that if we are to form a legislature out of delegates from counties for the purpose of distributing them all over the State, so that each portion of the State, rich and poor, can be equally represented in this way - if that is the true principle on which we ought to apportion our delegates - then most clearly we ought to give these counties that are now asking for it; and in doing that gentlemen will find that there will be no danger result from it.

Now, gentlemen have talked about representing their counties - how should they feel to go back and talk to their people if they should have to take a proposition here to give each county a delegate? Why, gentlemen, I represent a county that within my recollection has never had a delegate that I know of of its own. We are connected with Doddridge, and together we have a population of 12,000. Counties around us that have that population have got a delegate. Now, I say to you, gentlemen, that so far as the popular voice is to be ascertained in my own county, those gentlemen that have spoken here on this subject before, it is to see that Tyler county has a delegate and to see that every county in the State has a delegate. It is something we have always claimed here as a right, and we think it is a right due and belongs to all the counties. That will be the point of view in the county where I live. Instead of decreasing the vote in support of the Constitution it would increase it; because I believe the opinion there universally prevails that such a distribution of representation ought to be that every county should receive a delegate. Now, gentlemen, eight years hence, if we should be as prosperous as some gentlemen seem to think we should be, the ratio of a delegate if you fix the number at 46 or even 54 would be something like eight or ten thousand. And if you take one-half of that number, you would have to require - every county of the four that are now before us would get a delegate. Is there any gentleman representing a small county who supposes they will not have an increase of population to that amount? I offered an amendment some days since I would have been willing to have suffered our present Constitution to have gone into operation and effect according to the basis reported by the committee provided I could only be assured that at subsequent apportionments, taking a supposed number set forth in the Constitution which would authorize the counties that had that number to a delegate. I proposed four thousand, I did that because I wanted to avoid the inevitable conclusion that at every apportionment that we shall add more and more of these counties. To avoid all those difficulties, I again repeat the true course for us is to give every county a delegate. Increase your number if you please. I do not care how high you go for it. I am willing to go to the highest number any gentleman has named on this floor. I find there is a great dread and fear of getting an excessively large house of delegates. That cannot take place in a Convention of this kind. Gentlemen are too cautious on this subject. Bear in mind that if a house here containing sixty delegates should be considered large now, ten, twenty, thirty, forty or fifty years hence it will be considered small. Every year it will be considered smaller. Well, now, gentlemen that stick here so much for this principle of representing population, would make your apportionment this year. What will be the state of the case next year and the year after, and five years hence? Every year, as we grow, that difference is becoming greater and greater; and if you fix it to-day, tomorrow or next year it will be altered. It is impossible to have your lower house strictly according to this principle of representation by population. Now, I grant, gentlemen if we could do an act that was to remain stationery for all coming time, then there might be some propriety in sticking out for this equal and exact representation according to population; but we cannot do it, and the nearest and most equitable way of getting at it is to give to every county a delegate, knowing the fact that the increase of population will obviate all the difficulties that appear to be in the way of it now. I hope every gentleman that wishes to give to every county a delegate will adhere to this amendment and vote for it; and I hope they will continue to vote for it; and if it fails, to vote for the highest number of delegates proposed. I regretted extremely when I saw many of these gentlemen who wished to have the smaller counties represented voting against any proposition to have 59, because the more we increase the house of delegates, the less this difficulty will be borne upon those smaller counties. I shall vote for the amendment.

MR. LAMB. The gentleman from Tyier said the amendment would affect only four counties. This is a mistake. It will affect seven counties.

MR. SOPER. At 46 it does; but not at 54.

MR. LAMB. I think in either case it affects seven. Your amendment applies to seven, does not it (to Mr. Stuart) ?

MR. STUART of Doddridge. No, sir, five. Adopt your amendment without the amendment, it embraces three small counties and leaves five.

MR. DILLE. Mr. President, I do not desire to occupy any considerable length of time in the discussion of the question that I think has been very elaborately discussed already. I feel an indisposition to do so. But entertaining the views I have always entertained in regard to representation, I cannot let this opportunity pass without uniting my voice and what little influence - I know it is little - that I may possess in favor of that great and fundamental principle of free government, the representation of her people. It was a principle that was inculcated in my early life; and if my prejudices, if my feelings had even been against it when I came to the old commonwealth, the investigation of her history, the course of the distinguished statesmen from the West upon this great and fundamental principle of government would have induced me to have changed my principles, if I had previously entertained them. The wisdom and the importance of sticking closely to the principle of representation upon numbers, as I have always felt, is indispensable. And, really, it is astonishing to me that there can be found in this Convention a single individual who is willing to depart from this fundamental principle without it is impossible under any circumstances to follow it without violating some right which we are unable to accomplish altogether without doing so. Now, personally I am in favor of representation upon the white population of the State; but I am in favor of a small body. I hold that it is the proper kind in a legislative or republican government; that it is a theory that holds good not only in the ordinary business affairs of life but in all representative assemblies, that where you create a large body you have a less efficient body as a general rule. In other words, if you would increase this body to one hundred members you would not have that efficiency; you might embody a greater amount of talent but you would not have that efficiency and energy in the body that you would have in a smaller body. But that is not really the question under investigation at this time. The question purely is whether we shall depart from this great principle that we have engrafted on our Constitution already by an almost unanimous vote that representation not only now but in every future apportionment of representation equality of representation according to numbers shall be preserved as nearly as possible. Now, I want to appeal to the gentlemen who may entertain this position in reference to county representation what they mean - whether they meant what they say in this provision or whether they intended when they voted upon that to make the idea of representation of the people subservient to county organizations. Or, in other words, did you mean that when you said each individual should be represented so far as possible in the State of West Virginia, or did you intend to have an exception, to except county organizations, and that when county organizations interfered or interrupted the practical application of the provision here engrafted, then it was that numbers had nothing to do with the question - nothing to do with the proposition. I don't believe that they ever entertained such an idea. Upon the contrary, I believe that at that period in the history of the deliberations of this body every member who voted upon it intended to carry out in the very substance and spirit of that provision the principle there entertained. But some mysterious and incomprehensible idea to me has come over the spirit of their dreams; the lust for power, the desire, is natural with us all - the desire to get more than belongs to us is too natural in us all. I am willing to concede it; yet, really, when we are establishing a fundamental law, a constitution, not only for us but for our children after us, we ought to lay aside any such groveling, any such mean and unworthy principles, because those who may come after us may be our children and they may reap the reward of our misdoings here.

Now, sir, I hold that so far as county lines are concerned it does not change the character of a single man. I hold that a mountaineer in Preston is just as much a man, just as much a freeman, and should have just the same weight in this body or in any representative body that may be established as the favored son of the county of Ohio or the citizen of the county of my friend from Tyler. But when I say this, I ask nothing more for my people, I desire nothing more for them than I am willing to accord to the constituents of my friend from the county of Tyler and I hold that county lines do not change the relative character or the relative conduct and weight which any man should exert anywhere; nor will I say here or any place will I take the position that a man who possess a few paltry dollars, who can scarcely view his territory, who can scarcely manage his estates, is entitled, so far as government is concerned to any more weight as a citizen in the choice of representatives, in the power that they represent or shall possess than I or the poorest constituent in my county. I say that I discard such principles. I disown them, because they are neither republican nor democratic, nor are they consistent with the advanced spirit of the age. They are in violation of every teaching that I have received from the best and purest statesmen that have adorned this country. No, sir, I tell you when these gentlemen from the little counties will look at this question, when they will weigh it, as I am satisfied they will, when they feel that the larger counties of this State have no desire to deprive them of a single right - you have the same representation as we have, we have given you the same weight in legislation relatively that the larger counties possess; each one of your citizens counts for just as much in the legislation of the State as the citizen in any of the larger counties counts - and really, if you will examine the report of this committee you find an inclination not only in reference to you so far as the fractions are concerned to go a little farther that strict equality would require; and this disposition is extended, and in fact whenever your population increases to half this ratio, then they become magnanimous to you. They have been generous in this report, but they become magnanimous and give you a representation when you are really only entitled to a half of a representative.

But, says my friend from Tyler, unless we give it to these people now, they will never get it. I do not believe it. I am a friend of these little counties. I know some of them. I know their people. I know their territory. I know that they have capacities, and I would patiently look forward to the period in the history of West Virginia when these little counties, with a population from 1300 to 2000 will be numbered amongst the large counties of the new State. Why, sir, I have in part the honor to represent here on this floor the county of Preston. It has only been a few years with all the difficulties, with all the embarrassments connected with oppressive legislation and unjust course of the eastern portion of the State of Virginia against us - that with all that the county of Preston now in point of population, in point of numbers her old mother; and I feel satisfied when I think of this that it will only take a few revolving years to make the little county of Tucker larger than good old Randolph. You have only to look forward, you have but to be patient and you will get your rights and you will realize that this Convention has been more than just to you, has been magnanimous.

Such is my attitude in reference to this question. Although it may be a pleasant theme to discuss I am satisfied the members have so investigated the question before us that it is unnecessary for me to make any further remarks upon the subject.

MR. VAN WINKLE. Mr. President, I have not occupied any of the time of this Convention since this week commenced, neither yesterday nor to-day, until now, partly, sir, because I was somewhat mortified to witness what direction this debate is assuming. My recollection, sir, of the convention of 1850-51 and of the year that preceded it is very vivid. I was among those who were most active in fighting that battle and I well remember what was the war-cry and what was the object of the fight. I have besides, sir, had my recollection refreshed since I have been here by the object of the fight in 1830, when our great man Phillip Doddridge, for whom one of our counties has been named, stood up manfully and boldly to defend the rights of western Virginia, placing it upon that ground, contending for it in that name and triumphing; for he did triumph although the apportionment then made professes to be arbitrary but literally as between the two great sections of the State it is on the white population and nothing else. Between the two eastern districts, it is according to white population. Between the two western districts, the Valley had one more than it should have had; the trans-Allegheny district one less. But, sir, that was directly against the idea of county representation; and while I do not accuse my friend from Doddridge of attempting to renew that old doctrine, yet, sir, I am sorry that an advocacy of it as come from any quarter. It is in vain, sir, in vain for the people to contend and toil for the establishment of principle if when the first case arises in which the principle seems to inflict a seeming injustice, the old abuse is to be brought up again; to correct a supposed injustice in the case of some four or five counties a repudiated principle, one that has been condemned by the whole of western Virginia is to be revived for the time being. And, now, sir, what is that principle? I have to-day heard for the first time an attempted explanation of its propriety and justice. We heard that there was some principle on which it stood, but did not hear what the principle was unless it is that there is something sacred in the name of a county organization. Now, sir, we all know that counties are not an integral part of a state. They do not hold that relation to the State which the different states hold to the Union. You may abolish all the county lines and yet the State would remain; but attempt to interfere with the lines of the states, and you lose the very distinguishing feature of our national government.

Sir, the county of Tyler was within my recollection represented for many years by its own delegate and by a gentleman who was in this house this morning. The county of Tyier had its separate representation and enjoyed it; and until this furor for making a lot of counties to serve the purposes of one or two individuals, Tyler retained her separate representation. If the yielding of anything to the small counties depended on any recognition of this principle of county representation I should consider myself bound to oppose it even by way of a compromise, and that is what I fear we shall have to come to in the end. But, as I said before, I do not understand the gentleman from Doddridge as holding up the principle of county organization. He puts it entirely on other grounds - on magnanimity. That is what he calls it. I shall call it favoritism. Names are nothing, sir; things are everything; and about a matter of taste as we may say there is no disputing; but so far from considering that there is any magnanimity here in depriving - I was going to say ninety-nine hundreths, for it is nearly that, of the people of the State of a fair representation and give it to the other one-hundredth - that instead of there being any magnanimity in depriving the larger number of their rights and giving them to the smaller, the magnanimity would lie, it seems to me, in doing as nearly as you can exact justice to all. Gentlemen argue this matter as if these small counties were deprived of representation. That everybody knows is not so. The only question is, are they for their limited numbers to be entitled to the same privileges with other counties that have greater numbers? State the case and it ought to be enough to defeat such a claim. It carries on its face iniquity and injustice. You cannot give to them unless you deprive others. But that is what is proposed. I trust, sir, however, that there is no disposition here, except in the one instance where it has been advocated, to revive this old idea of county representation. For I do not believe the gentleman from Doddridge nor many of those who voted with him have that in view when they opposed this, but the effect is similar so far as the small counties are concerned.

But, sir, I now want to come back to see what we struggled for in 1850 - what there was that threw this whole state into a turmoil. To my knowledge, every member from the west had drawn his pay; and if the first act of the convention when it assembled on that date had not been the appointment of a committee of compromise giving the west a majority, every member would have left. Sir, it was as near revolution as we have ever approached until we fell on these evil days, since the revolution of 1776; and that is what western men were willing to do and risk to maintain the principle which was compromised with them. Now, sir, what was that principle? What was contended for by the men of the east in reference to representation in the assembly? It was that representation should be founded on a combined ratio of property and of persons; of property as represented by taxation, and of free white persons. And what did the west contend for? They contended very explicitly - there is no possibility of a mistake about it; there is no possibility of saying we do not know what they contended for. It is patent in all the papers of that day; it is patent in the present constitution of the state; and what they contended for was this: that representation should be founded on the white population of the state, and upon nothing else. They were not willing that some $478 (I think that was the amount) of property should count as much as one free citizen. Yet that was the iniquitous rule proposed to us. We contended until we obtained that compromise committee and the compromise they brought in was that the house of delegates should be apportioned precisely on the "white basis" as nearly as possible while the senate was to be continued for a time on the "mixed basis," and in 1865 the question was to be submitted to the people. And who has had any doubts that if our relations with eastern Virginia had continued and the year 1865 had arrived and the three alternatives, I believe there were, submitted to the people - who has any doubt, at any rate among those who made the struggle of 1850-51, that every one which proposed to put the senate also on the basis of white population of the state would have succeeded?

Now, will any gentleman tell me that a principle that excited all that feeling in this commonwealth in 1851 - a principle in vindication of which your fellow citizens of the west and of the Valley were willing to have left that convention and to have risked the consequences of such an act, believing as they did most certainly that they would have been justified before the people - is any one to tell me that principle has lost anything in value since that day? Is any one to tell me the circumstances of this state have so changed that the principle is no longer valuable? Is any one to tell me in setting up a new state here, to be composed only of the west that the principle is not as well worth preserving for the new State as it was for the old? O, sir, it may be said in reply to this, we only propose a small departure from it. There is the very point to which I would ask the attention of gentlemen. Instead of proposing a small departure from it, in my opinion you are proposing a very wide departure from it, because if this amendment now under consideration prevails, you are going to perpetuate in your Constitution this rule of county apportionment founded on something less than the white population; you are going to perpetuate it in your Constitution as long as the Constitution shall last, if it ever comes into existence with such a clause in it. Aye, sir, ten years hence - or as some gentlemen have wished to introduce an intermediate period of five years - whenever a census is taken so that a new apportionment is necessary, there stands the principle still and there a bait held out to cut up and subdivide your counties until the same difficulty we experience now will grow still greater. Sir, when we have a principle, if we are satisfied with the correctness of that principle; if, especially, that principle has been approved not only by our own judgment but by that of those who have preceded us and surround us everywhere; if it is such a principle of government as has been approved by our fathers; if it is a principle that is cherished through the breadth and length of this nation; if it is a principle that has been approved wherever free government prevails, and wherever there is an effort to establish free government - let us not think it is a light or trifling matter when we talk about tampering with it. Sir, I want some stronger argument than the mere gratification of gentlemen who want to be "magnanimous" - at somebody else's expense. I should like to gratify them, or the people of these small counties. But I want a stronger argument than the mere temporary, momentary, gratification, if you please, of these no doubt highly respectable fellow-citizens, to induce me to step aside one iota from this principle beyond what is rendered necessary by the very circumstances in which we are situated.

Our county organizations, sir, are for convenience. They are not so much for convenience for our representation in the legislature as for many other things. It is necessary for the convenience of the people that they exist as subordinate divisions of territory. And, sir, if we go back to the true theory of government that of the people themselves, it is only for their convenience that the intervention of a representative becomes necessary. That convenience is an argument, or a fact, to which some attention I admit must be paid; and therefore we have, in assigning these representatives, have done it as far as possible by county lines; and, sir, if the number fifty-four or a greater number is chosen here the variations or fractions that will be left after the representation has been assigned in the counties entitled to representatives, will not vary greatly - will not be so large as to do any great injustice. They will hardly be greater than the population of these small counties which it is proposed to vest with a representative. We must adapt ourselves, in some way or other, to circumstances, it is true, and therefore the rule is that we will follow out the principle as nearly as possible. Now, gentlemen must understand a principle is not a rule and a rule is not a principle. The principle here is equal representation, and the rule is to apportion representation according to population as nearly as possible. One is the principle; the other the rule that is derived from it. Now, I would not be too strenuous about small fractions; about a small departure here and there which the convenience of the people here and there may demand, or which the stubbornness of figures may render necessary; but when it comes to avowed abandonment of principle - for I believe the principle has been treated as a light matter by some of the gentlemen who have spoken here - an abandonment, a setting aside or a depreciation of principle - 1 cannot consent to it. Sir, to speak of what may be said out of doors, or whether the course taken here may be approved or not, is not an argument that should weigh greatly upon us. We should know we are sent here to establish a government in accordance with republican and democratic principles. I do not mean the principles of the parties designated by these names; but I mean those fundamental principles of government which we describe by those words. We have been sent here to establish a government with principles that have been cherished by our nation ever since it was a nation; by our ancestors ever since the English revolution and by others even previous to that. That is our guide. We are sent here, absolutely under the Constitution of the United States, to make a government republican in form. Our theory of construction is precise enough and broad enough. It tells us we are to establish a government here in accordance with those cherished principles of liberty in which our forefathers delighted; and, now, sir, if we find the principle sanctioned by them that was engrafted by them on our national Union, that stares us in the face at every page of the Constitution they made, can we doubt that we are in the right path when we are following in their footsteps? But, sir, if even the strictest adherence to this principle should lead to some seeming injustice in this quarter or that, with no better justification when we go back to the people who have sent us here than to say, we admit it does work some hardship here and it does seem to work hardship there, but we have followed the principle which was set before us as our guide and chart in erecting this government and could not see a better way than for you to submit to some inconvenience - to some seeming injustice, if you please, better even to submit to that for a while until the circumstances of a new apportionment shall right the matter and make it more in accordance with your wishes; better to submit to that - aye, better to submit to ten times that than to do anything that would seem to cast even a slur on a principle that has been so sacredly established among us.

Now, if this matter could end with the present apportionment, I should have less objection to it; but as it stands here it remains engrafted in this Constitution so long as the Constitution shall last; and when will be the day - when will that time come - when a human institution can be so framed as to be perfect in every respect? Sir, we are seemingly trying at impossibilities; we are trying to make a constitution here that is to satisfy everybody in every particular, and we find that the first step we take in avoidance of principle brings up an injustice on the other side. Give to these counties that are not entitled by the rule that has been adopted a full representative and that representation must be taken from somewheres else. There is no escape from that. Because if you fix a number of representatives and divide them and then make an addition to it and give these remaining counties each one after you have assigned each county its relative proportion of the whole, the addition thus made reduces the power exercised by the other counties just that much. If there were fifty representatives and my county had one, it is one-fiftieth; but when you raise the whole number to 56 and give me but one I am but one fifty-sixth of the whole. And thus whenever you attempt to rectify an apparent hardship in one direction, you are just inflicting the same hardship in another direction.

Now, what shall we do? How can we reconcile this conflict of interests and circumstances? What shall we do to avoid this inflexibility of figures to county lines? Sir, there is but one course for wise men to adopt under these and all other circumstances. It is, sir, alongside the great maxim that under all circumstances we do right and leave the results to Providence. In this case, we should follow our principle as far as it will go - as far and closely as it is possible to follow it; and if it does inflict seeming injustice here or a seeming injustice there, we may be very certain of this that any departure from it will render greater injustice than by adhering to it. The principle's results will unquestionably prevent that injustice. If the principle should be wrong, the closer you stick to it the worse it will be. But we all recognize that representation according to population is the correct principle. We have already certified that by our votes here two or three times. Now, what we should have done is this. All this matter should have been considered under another section. There is a section here that is lower down, I believe it has been before us, however, which provides how this representation shall be apportioned. The rule is there given - if it is a rule and not a principle, is an effort to adapt itself to these very circumstances of these inflexible county lines and these inflexible figures. That rule says that you shall ascertain a divisor, and you shall work with that assigning to each county its one, or two, or more members as that divisor gives it; and then you have remainders and fractions, and what will you do with them? You will take the remaining number of representatives and assign them one to each county whose fraction is over one-half of the divisor. If that would work injustice, say it shall be to all whose fraction is over a third. But fix your rule, and do that apart from these personal considerations. If we could have done that without saying how it was to apply to any county - if we could have settled the rule free from any bias of that kind, would it not have been the part of wisdom, rather than to have adhered inflexibly to that? We would have settled the rule according to our best ideas of right and justice according to a principle of our government. And will it not be well in all cases that arise hereafter in the debates of this Convention wherever rivalry of different counties or territories of any kind, with different interests are to come up here, to settle the rule as derived from those principles before us and then apply it inflexibly and let it work as it may? Sir, we are not perfect. We are not in many cases perhaps free from bias. So far as we know the bias is upon our minds we can cast it off. But every man who has tried a case before a jury knows that there are biases on the minds of almost every man of which the man is sensible. He does not know how far they control his opinions in reference to many matters. But if the other course is adopted - if we are settling the rule according to principle; if we do not know how the rule is going to work in particular cases, there is enough love of justice in man perhaps to make a rule as good as it could be made. If that is once understood; if we know we have adopted a good rule; if that rule satisfies our own best reflection, the best examination we can give it, then is it not the part of wisdom to carry it out inflexibly? Now, sir, this is what we may do here. We may now, even at the stage we have got it, when we do know the operation of any form of apportionment, we may go back in our minds and canvass there and ascertain what is the basis of the rule of apportionment, and having ascertained that - I mean always under the principle which we have adopted and which we mean to adhere to generally - having ascertained that, ought we not, out of a sense of justice, knowing that a departure from the rule in any direction inflicts an injustice in another - will it not be the part of wise men, of men determined to do their duty and knowing no outside or improper influences, to discard if possible from our minds those secret biases which are in the mind of every men - will it not be proper even now to go back and review the whole ground and see that our rule is correct and then adhere to it and the principle on which it is founded?

MR. STUART of Doddridge. I am sorry, sir, that this question is again before us; and I must be permitted to say because I have differed with some gentlemen in this Convention I do so with the kindest feelings and because I cannot just see as they do. It seems to me we might be likened to the unjust judge. The gentleman from the county of Wood, you know. He was disposed to do justice to the widow; but, at last, by her continually coming he became wearied of her. I presume the gentleman from Wood and Ohio think we will do justice after a while because they will weary us into it. I am pretty nigh wearied now, and if it was not that I made this motion to amend I would not even make a suggestion. I do not intend to argue the case because it has been so fully argued by my friend from Tyler. The argument adduced is forcible and sufficient to convince my mind that the amendment proposed by me should be adopted. But it will be understood, Mr. President, that I am not opposed to principle and I was willing to take the principle as reported by the committee. It was not on any motion of mine that that report is sought to be disturbed; and I never sought to offer an amendment until the amendment of the gentleman from Wood was proposed; to which I offered an amendment. I was willing as one member of this Convention to be governed by the principle adopted in our fundamental rules and by the rule as carried out by the committee report. But when I see an amendment proposed here that proposed to disturb this report which had adopted the rule as far as practicable to be governed by the principle, then I was not willing to see the principle carried to a certain extent until it reached a certain result and then stop. Now, principle may be abused, it appears to me, at least this can. You can carry out this principle by the amendment of the gentleman from Ohio until it reaches a certain result and then stop there. But that result operates favorably, I must insist, towards the large counties. If gentlemen are so much in favor of carrying out the principle, why do they seek to disturb the report of the committee that was based on the principle. If they sought to disturb it for the purpose of carrying out the principle to effect a certain result, then, sir, you see there is a motive. It was purely a principle as embodied in the report of the committee; but now it is sought to be managed for a motive. That is the way I look at it; and looking at it in that way, I can see no good reason for this amendment unless we could make it reach the smaller counties, because all the other counties were represented.

MR. LAMB. So are the small ones.

MR. STUART of Doddridge. Why seek to disturb it unless, as I before remarked, to reach a certain result, and that result to operate favorably to the larger counties. Then why stop? If this principle was to be carried out to reach a certain thing, it was time to offer my amendment to the amendment; that if we vote to disturb this thing we may reach what I think is the proper motive that should influence the minds of this body. Now, the gentleman from Ohio was turned over by the gentleman from Wood. They have dropped the figures and gone solely on the principle. The gentleman from Wood alluded to an argument that I submitted, I believe yesterday or two or three days ago, or some time since. And excuse me for another remark, that unless we are governed here by our action, unless we proceed and do things and go on with them and not be changing eternally what we have done, changing our opinions, turning over again - I will begin to think the legislative action up here is beginning to look to proper results also. I do not see why we cannot come to a conclusion at once, and when we have adopted a certain proposition or rule and go on with it. I have not changed my mind since I have commenced the argument. I was willing to support the report of the committee. I am willing now to support it; but if it is to be amended at all, I want the amendment to the amendment too adopted.

But the gentleman said he had been fighting for this principle down in eastern Virginia, in Richmond, in 1850. What was the principle he there fought? Let us make a comparison and see whether the gentleman is right or whether I am right. The principle the gentleman from Wood fought in Richmond in the year 1850 was that the majority was forcing on a minority an inequality. Here it is the majority giving to the minority. We have it in our power. Down there, the gentleman was fighting against the majority in the convention, a majority in the legislative halls, a majority that had a right to dictate their own course and their own views. Here we have a right to adopt our own views and dictate the course that shall be followed out; and simply because I used the word "magnanimous" to give to the four or five little counties when we had it in our power to exclude them exception is taken. They do not have the power to force this doctrine on us; but if we give it, we give it as a gratuity, while the question he fought there was against the majority forcing it upon the minority.

MR. VAN WINKLE. Will the gentleman allow me to make a remark.

MR. STUART of Doddridge. Certainly.

MR. VAN WINKLE. Well, then, if I should take a dollar out of my pocket and give it to somebody who needs it, that may pass for magnanimity; but if I put my hand in your pocket and take a dollar and give it to him I don't think that is any great magnanimity.

MR. STUART of Doddridge. But we are putting our hands into our own pockets.

MR. VAN WINKLE. No, sir; into mine.

MR. STUART of Doddridge. I do not think so, because it is certainly a majority of the counties represented on this floor and they have a right, upon the principle that has been adopted to allot a representative to any county. Then if a majority has this right, we are putting our hands into our own pockets and voluntarily giving it to the small counties. I want the gentleman from Wood to help us. If he wants to depart from principle and carry out this principle to result, I want it to reach my result and not his result, if it can be carried out. If the amendment to the amendment is not adopted, the question will recur on the amendment of the gentleman from Ohio; that is, to strike out 46 and insert 54. I must go back to figures just a few minutes. I don't intend to detain you. The number 54 gives a ratio of 5637, a fraction of 2618; that is, 2820 would be a fraction exceeding one-half the ratio. Well, sir, the number 54 will give to Barbour, with a fraction of 3092 an additional representative. I want you all to understand it. Greenbrier will get an additional representative, with a fraction of 5154. Monroe will get one with a fraction of 3889. Pleas- ants would get a representative with a fraction of 2926. Raleigh will get one with a fraction of 3291. Mason will get a representative with a fraction of 3115. Ohio will get another representative, making four, with a fraction of 5285. And then Wyoming will get a delegate with a fraction of 2796. That I believe embraces the eight. If it does not, my neighbor's county of Kanawha comes in next, and I believe it will. I have not made the figures to know exactly but I believe Kanawha for a fraction of 2513 will get an additional representative, which makes three. Well, sir, let us look at the result. The principle I desire to carry out till it reaches a certain result, and let us examine the result for a few moments I want to reiterate an argument I made yesterday or the day before - which I do not like to do - and call your attention to figures. It is hard to recollect figures, and harder to make them sometimes.

Well, sir, then we will give to Kanawha for a fraction of 2513 a delegate, which will be three delegates to Kanawha. She gets one delegate for a fraction of 2513. Now, sir, the reiteration. Here is the district of Calhoun and Gilmer, with a population of 6177, almost three times as much as the fraction that gives Kanawha an additional delegate. Well, now the result I want to reach. I want to give to each of those two a delegate for a fraction larger than the fraction which gives Kanawha one. Is there anything unfair in that? Because it will operate unfairly and the unfairness will result to these small counties which I am disposed, if possible, to lean towards. And I have stood and fought for them until I find the representatives of the small counties themselves forsaking me. And I am not going to fight much more. But I want gentlemen to understand distinctly the extent and see the effect and operation of it. If I was satisfied you understood it, I would not trouble you with a solitary word more, because it is not for the pleasure of speaking. I speak because I think it is right this thing should be distinctly understood and not for any other purpose. I am governed in this thing from principle, I must say to the gentleman from Wood, not viewing these matters lightly. Then, sir, you give to Kanawha for this small fraction of twenty-five hundred inhabitants one delegate and say you will not give it to the delegate district that has six thousand and something, nearly three times the number of the fraction you give it to. Well, now, that is not a case where it will operate unfairly in carrying out the amendment of the gentleman from Ohio. It gives, sir, to Jackson an additional delegate, as I remarked, for a fraction of 2800, while Clay and Braxton with a population of 6646 have but one delegate.

But you turn round and carry out the principle, in order to reach your result that will give a delegate to Jackson for a small fraction below one-third the population of the delegate district of Clay and Braxton instead of giving it to those counties, in order that the county might have a representative. Well, sir, here is another district, Webster and Nicholas; here is Tucker and Randolph with 6189, while the amendment of the gentleman from Kanawha will give it for small fractions, below one-third the amount of that delegate district they will give it to the larger counties. I can see nothing in it that is fair.

Now, sir, if the report of the committee had been 54 and they had allotted it according to the rule which should govern them, dividing the number, being governed by a certain ratio, I would not have complained and never would have offered an amendment to the number 54. But when I see it coming in here reported 46, then an amendment is made to reach such and such a result, operating as it does, I feel like offering the amendment I have offered. I stand here vindicating the amendment to the amendment in opposition to the amendment. But, sir, I do not want to allude to the argument of my friend from Tyler because it was forcibly put and conclusive; but I must say to the gentleman from Wood that we propose to adopt a proposition here which will stop difficulty in the future, and the only thing we look to now is merely the five small counties, which we propose to remedy and reach by the amendment to the amendment. We propose to adopt a principle that no county shall be hereafter of a less area than so much nor a less population than 4,000 and it shall not be taken off of any county which is thereby reduced below the same area and the same population. Even if we adopt this principle this question can never come up again. It is simply looking to the four or five little counties now and we never will have the trouble in future. The gentleman intimated that if it was to stop here he might be willing to adopt that amendment to the amendment. Let me say to him in my honest opinion that will stop here, and we will have no difficulty in the future.

Now, Mr. President, I believe that I have said all that I ever expect to say in this body in favor of giving separate delegates to these small counties. Let me say to the gentlemen who feel interested in this question that the only way you will get it will be by adopting the amendment to the amendment. If you vote that down, sir, you lose it, and also I believe the number 54 will go over, for I feel even now rather inclined to vote against it if the amendment to the amendment is not adopted.

MR. SOPER. A word of explanation. My friend from Wood has addressed the Convention apparently under the impression that I am in my view of representation violating a solemn principle adopted in the report of the committee upon fundamental principles. I wish to explain and show that I recognize that principle as a general one; and I am only acting within the exception contained in that principle. The difference between myself and the committee who have made this report is this, sir, the principle contained in the report of the Committee on Fundamental Provisions is violated probably by both of us, or we both seek to take advantage of the exception there. In doing it I begin by giving every county a delegate and after every county has a delegate the additional delegates are to be apportioned strictly according to the number of the white population. On the other hand, the gentlemen on the other side began by apportioning according to representation, and then they violate the principle by throwing away one-half of it. Now, there is the only difference between us. We both of us, I suppose, intend to adhere to that general principle, that representation, as near as may be, shall be according to the free white population. I wish to make that explanation, and then it will be seen whether or no there is any violation of that principle, yet the violation on my part is not more in accordance with justice and principles of right than that on the other side. I leave that for the Convention to determine.

MR. VAN WINKLE. I certainly understood the gentleman as defending the county scheme, that is to say: that by reason of county organization they were entitled to have representation. That is what I understood him to say. That is what I combat. I am very glad to hear him make the remarks he does now in explanation.

I will say another thing as well in reply to the remarks just made as some that I incidentally omitted when I was up. That is, why I prefer 54 to 46. In accordance with the rule we have adopted, the apportionment of representation according to white population as near as possible, 46 leaves an aggregate fraction of 138,000; 54 leaves an aggregate fraction of only 90,000. So there is one-half lesser number in favor of 54 over 46. Again, sir, I cannot persuade myself that there can be anything like an approach to justice in giving to five counties with an aggregate population of a little over eight thousand (8700 it may be) five delegates when several counties in the State having an equal population will get but one. Whatever system is pursued in a house of any given number by giving to those who are not entitled to it according to their white population you rob others who are entitled by their population. Now, gentlemen may take any horn of the dilemma they please but they cannot escape that. You cannot give it in one place without taking it from another. Now, that is injustice; it is plain, palpable injustice according to my conception of things. I would not object to a good scheme of compromise, by which I do not understand giving the whole on one side and getting nothing on the other, but some intermediate plan that could be adhered to that was fair and did not make our present apportionment arbitrary; but I cannot consent to engraft into our Constitution as a rule for future action one which I believe to be so unjust in its operation and one which we must all admit violates our accepted principle. There are some evils attending it now, which the adoption of this arbitrary plan would only perpetuate and perhaps increase in the future. If we could read the future and tell what will be the state of things when the next apportionment is made, we might by some rule that would work right provide against danger. But we cannot do that; and, sir, as I remarked when I was up the other day if we suppose a new apportionment is to be made in ten years and could tell what the population would then be, or five years hence, we might take that as a fair average and assign from that. It might be a very just and equitable plan. We can, however, say, in anticipation that the inequalities as to numbers will be greater probably at the end of five years than they are now. Because - this I showed the other day - with the same ratio of increase all over the State a positive number giving a representative must be greater for a county of ten thousand than for one of 2000. The first if it increases one-fourth becomes 12,500; the other 2500. The injustice, the inequality, the discrepancy are all likely to increase.

I do not wish to allude more particularly to the situation of some of these small counties, but in the nature of things a rapid increase of population cannot be expected in those counties that are to be devoted mainly to grazing purposes; whereas the manufacturing and commercial counties increase their numbers almost always in a very rapid ratio.

Therefore, I said before, I am prepared to adopt something like an intermediate compromise, provided it is not engrafted on the Constitution as a rule for the future; to make the proportion arbitrary, but not to leave it on the Constitution.

MR. PARSONS. I would feel truly glad if this question could be dispensed with. It appears Tucker has been the text of the Convention for several days. As one of the reasons why I should be glad if we could dispense with that question it has been so ably discussed. I would feel truly glad if this Convention could feel that it should give us a representative. We never have been represented, sir, when we belonged to Randolph. We lived in the extreme end of the county. The result was a representative was always selected from the town of Beverly or above that. We had to go some thirty miles for our county seat. One gentleman stated on this floor that new counties were made frequently to favor some rich man. That was not the case in Tucker. It was to benefit a number of citizens that they might not have so far to go to their county seat. Since we have been formed into a county the result has been that we never have had a representative from our end of the county. It has been by a man living some thirty, forty, or fifty miles south of us; and the result has been they have never favored our county whatever. We have never got any of the advantages of the legislature. But yet we think it is just. My friend said he did not intend to go any further with us; believed I had left him. I for one feel like going no further. I am favorable to a new state. I want a new state under any circumstances. But I am prompted by the rule to do justice. I do hope that we may get through with the question, that Tucker may not be the text any longer.

MR. HALL of Marion. Mr. President, I do not design to occupy the time of the Convention. I only wish to add one or two suggestions to the able arguments we have had on this question and to say that after the argument and the facts referred to by the gentleman from Wood county - facts that all well remember and know - that are just as well known to every man, woman and child in this part of the State as their alphabet - when you referred to that fact and the feelings that exist throughout this broad country - and when there was not a man, woman or child in the country that did not participate in that - 1 ask you how you dare thrust that thing on them now? Whether you call it "magnanimity" or any other name. I hope gentlemen will bear this in mind. But for the suggestion of my friend from Wood, I should not have added a word to these thoughts and suggestions of compromise. I must, for one - 1 will take any number; I will take any figures that will avoid any hardship; but for compromising one iota of that principle I never will, and my people at home never will. If I grow generous at their expense; if I thrust my hand into their pockets and take their money they would complain. But when I tell them I am bartering away their rights, they will tell me I have more than robbed them. Now, sir, it was suggested by the gentleman from Wood, very properly, too, and I concur in it to the full extent that we should not be influenced here by opinions that might be expressed outside. I concur in that sentiment; but we ought to remember that when we act here what our people outside will demand of us, and do our work so they will approve it when we are done. I, like the gentleman from Tucker, am so anxious to have a new state I will suffer anything that does not sacrifice principle; and we ought to be careful not to send forth our work with the seeds of death in it and thus destroy all our efforts in the past. I say it is on account of that thing that I beg gentlemen to remember. I ask who in northwestern Virginia, until the question was brought up here has ever advocated anything other than the principle of equal representation founded on the white basis? Where were our men to whom we have always looked - the gentleman from Monongalia, who on account of illness was not here - where was he? What was his position in 1850? and at all times since? Where was the gentleman from Kanawha, who is not now with us - the two gentlemen from Kanawha? My friend from Wood, and every man who is in any position of prominence throughout the whole northwest - I ask what was their position? There was but one voice, and that has been caught up by every man throughout this country; and never has there been any opportunity for them to forget it, because the injustice of this thing has been dinned about them until now they conclude we are about to free ourselves from it and by calling it the pretty name of "magnanimity" we are asked to repeat the same thing, to forget all the wrong of it and all our determination to be free from it.

My friend from Tyler says he does not seek to violate this principle more than some other proposition would really violate it. Will two wrongs make a right? It is said in grammar that two negatives are sometimes equivalent to an affirmative; but it is not said anywhere that two wrongs will make one right. It will not do it. But my friend from Doddridge gets disheartened because the little counties are falling off and some other gentlemen that spoke before him intimated as much. I was glad to hear from my friend from Tucker, to see that he was falling off and why he says he wants to be just. Gentlemen, that is the true position. That is what we must be. It is what our people demand of us. And they abate not one iota. We dare not do otherwise. Let us be generous with our own; but let us be just with what belongs to others. Did the people who sent me here authorize me to barter away this principle which is already established, because of which we were sent here? Not a particle of it. I have no more right to do it than I have to put my hand in my neighbor's pocket and take his cash. The offence of taking the cash would be a trifle by the side of it. Bartering away the rights of my people! Now, we have heard throughout this whole argument that there is some hardship in this principle. Now, I ask where and how, and if you are not borrowing trouble. As remarked by the gentleman from Wood, if there is any hardship about the thing it will fall upon us when we come to the question of the rule, the application of the rule. That we have not yet reached in our action if I understand aright. At least if it has been reached . . .

MR. VAN WINKLE. It is passed.

MR. HALL of Marion. It is passed. Well, I will not refer to that then because I do not know the form in which it passed. I did not read closely the action of the Convention before I returned. But this is not the place; this is not the means. If there is hardship in the rule, then correct the rule, but save the principle. That is what you must do. And you can do nothing else unless you shall determine to go to sea. Whenever you propose to go outside of the principle, what is the consequence? Why, sir, how have we agreed here in this house? How have we managed it when we threw away the rudder? And if we could not manage it here in our small body how could this great people reconcile that thing? No, sir, the principle is either right or it is wrong. If it is not wrong, we have wrong and false, clamoring all over this country ever since I can recollect. We have been deceitful or deluded, and have raised a false clamor against the east; and we have held false views as to what was a proper basis of a free government; and we have been under a delusion, lo these many years and all the time. Well, then, if it is right and you apply it by a proper rule, no man can suffer, no injustice can be done to anybody. Now, what has all this thing grown out of? And where is the great importance of adhering to a principle by a fixed rule, a proper rule? It is in order to prevent a continual, unceasing and eternal agitation in a system of log-rolling that will pervade your entire country forever unless it is barred in this manner. And will you presume to say that log-rolling has not opened up this very discussion, this very departure from this rule? If we are to log-roll in the very onset and destroy the very foundation stones of the government, I would not give you a blue bean for it if you succeeded in the destruction of that principle. Now, I do not mean any discourtesy about it; but I take upon myself to say that while that has been the fact - and while I do not claim to be more free from these local influences than any other person - 1 have been so situated that I have not been led into temptation and therefore I have had no cause. I do not say that I am so pure or would be any more virtuous if I were lead into temptation; but I say it has been all this sort of local influences that has led to the proposition to depart from that principle; and we were further ahead and stood in a better position at the beginning of this week than we do now on this very question, and that too at the instance of men who are so very tired of this thing that they do not want to hear any more of it; are going all at once to leave it off; who, by the way, were the very persons who opened the Pandora box and introduced this delay. I have felt disappointed that this thing did not remain fixed as it was. I would spend three months on this before I would have such a destructive error incorporated in the foundation of this Constitution and government as a proposition to ignore the idea that equal representation is the right of our people. And I ask any man now if he will tell me what is to be the basis of representation. You have got some basis, and your people will ask you when you go home. What is the basis of representation, and what will you answer? Is it the white basis? Yes, we have got nothing black in it. It is comfortably white. Well, equal representation? No. Well, why haven't you, what is the influence? Property did not enter into it, did it? No. You don't represent according to numbers, then, and you don't make it equal? No. Then what is it that you represent? You can tell them you have got an "entity." You have found a shadow; you have represented an idea; you have used up 42 in representing an idea, then the rest of the way you went on the white basis, and there was not enough of it to make equal representation, so you just had to scatter it about. Now, that is all you can tell them. You represent the idea of a something called a county - perhaps "county sovereignty"; and you have got the Confederate counties of West Virginia to present to your people. County sovereignty! You cannot make anything else of it. • I defy any man to do it. Now, I ask you if you can go before your people with such a constitution with any hope that you can ever get away from your people with the thing alive? I called upon a very intelligent gentleman from my county this morning and asked him what they would do with a constitution with anything of that sort in it. "We'll fire it back; send somebody back there to make something that will relieve us from that thing and give us what we have been fighting for all our lives." That is what they will do, and what they ought to do. The gentleman from Doddridge says he will not argue this question because the gentleman from Tyler argued it so forcibly that it is not necessary for him to argue it.

MR. STUART of Doddridge. I did not want to reiterate the argument of the gentleman from Tyler. If the gentleman will reflect a moment, he will find there is not much more argument on this question.

MR. HALL of Marion. I may have misunderstood him. I understood him as meaning that the argument had been exhausted. Well I only refer to this to see what was the ground of the argument of the gentleman from Tyler. That thing has been pressed on this body time and again and I admire the courage with which my friend from Tyler holds on to this thing. His argument is invariably, if I have understood him, to be this: that counties always have been and are entitled to be represented. That is the idea of the county, and that we can equalize this thing in the senate. Now that is just topsy-turvey. In the legislature the house is the popular branch; and when you provide a balance- wheel that balance-wheel is found in the senate. Another argument was that if the small counties did not get their delegate now they never would get it. He tells you it will be no great hardship to these larger counties with their larger fractions, because when they come up with other numbers at another apportionment they will get an additional representative. Taking those two points together the gentleman's argument amounts to this: one is a contradiction of the other, or else it amounts to an admission that he is anxious to have the small counties have a representative now, because he is satisfied they never will be entitled to it, and unless they get it now they never can get it, because if the fractions of the larger counties only have to wait until another apportionment and then could be provided for I ask if it is to be expected these small counties will ever be entitled to a representative if they could not as easily, on the same principle, be provided for as these fractions. Now, you see what is fair for one, and the same thing ought to be fair for the other.

The whole thing then resolves itself into this. Here would be some temporary seeming hardships and somebody, unfortunately, in applying this rule would have larger fractions unrepresented for the time than others. And because of that thing, then, you propose to throw away your basic principle, or modify it some in order to remove one thing, and then modify it a little more in order to get somebody else to help you; and then you will both have to get another who will benefit by such modification to help you; and then it is a scuffle for local advantage to the destruction of the rule that must necessarily be incorporated to prevent this scuffle being perpetual. Is not that about the effect of it?

MR. SOPER. Will the gentleman answer me one question? I believe he was in the convention that asked those small counties to send a delegate here. Will he explain to me and say whether he was in favor of that representation or not? If so on what principle?

MR. HALL of Marion. I had almost forgotten that, but I will answer in a moment. We are told this is only to be for the time; that we will not incorporate it; we will never be troubled by it in the future. We will bring a right out of a wrong. I referred to the fact before that if we begin the thing on this false idea, the very precedent will be preached to us and thrown at us in all time, and you never will be able to shake it off by claiming it was an error. But now the gentleman tells us that in the former convention which was looking to this every county was permitted to have a representative. If the gentleman is well informed respecting the composition of that convention he is aware that the basis of representation was not an element in the matter at all. The committee of safety appointed by the May convention or mass-meeting called on the people of Virginia who were loyal to the United States to appoint delegates equal in number to the number of delegates and senators to which the counties and districts were entitled on the 4th day of June, and inviting such members of the house of delegates and of the senate as refused to submit to the Richmond usurpation to also take seats in that convention as delegates. That is the way the June convention, which at its August sitting provided for this Convention, was constituted. It was based on the existing laws of Virginia fixing the representation in the two houses of the general assembly. There is nothing there to support the gentleman's contention for county sovereignty any more than there is in the composition of our legislature; and it is the basis underlying one house of that body that we are fighting to get away from. If this were not true, the June convention was a body called into being to provide for a great emergency, in which any question of the nice division of representation was relatively too unimportant to be thought of. There would be a very great difference between a rule that should govern in assembling such a convention for such an emergency, when the essential thing was only that the loyal communities, wherever they might be should have a voice in its deliberations, and the rule that should govern a body entrusted with the duty of making a rule to regulate and govern the permanent legislation of the State. In the June convention, there was no question of local interests, the laying of revenues, no questions of administration such as continually arise in a legislative body. The questions to be dealt with were temporary but they involved the safety, perhaps the existence, of the whole body of the people. We are here preparing rules and laying down principles which are to determine the details of legislation in this new State for perhaps a generation without change, and which will have all the force of established law and precedent when the time shall come to change this organic law. The rightfulness or the wrongfulness of the principles we embody in this instrument are the vital and enduring things that should appeal to our most careful and conscientious judgment.

I tell you most seriously that unless we be governed by the fundamental principle we have adopted in regard to the basis of representation; if we attempt to make a constitution here by logrolling, by combining to accommodate every locality with an advantage to their localities, whenever you permit a proceeding of that sort, you never can and never will make a constitution that is worthy of you or such as the people demand at your hands. We must rise above that thing. I tell you solemnly I would not support such a measure though it should disfranchise my people absolutely for the next five years. I would not ignore the principle and rule necessary to preserve the principles and prosperity of the country; and I think if gentlemen would reflect but a moment, they would not.

As it regards suggestions of compromise, I am unwilling to compromise a particle of principle. I will not be in the way of taking one number or another, or to adapting the rule by any means that will occasion the least possible hardship on any part of the proposed State; but I cannot compromise the principle in one iota; and I beg that no such thought be entertained; that we will determine either that we will have equal representation or that we will not have it; and that if we are to have anything as a basis except the white population we shall appoint a committee of investigation to ascertain and report what that other thing is, that we may name it and mark it, and brand it and know it when we find it and know it is a part of the foundation of our government. When we have ascertained what our principle is to be, we have nothing in the world to do but to apply a just rule in carrying it out, and I trust we will do that without reference to any temporary or seeming local hardships or advantages. Because there can be no injustice in justice, in absolute equality. There may be seeming hardship, but it cannot be called injustice until it is unjust.

I have urged the effect of departing from our principle would have on our Constitution. I have had opportunities of knowing. Of course we cannot tell what people may do; but if there is anything that we can know, it is that the people have clamored against this very thing as the very origin, the sum total as it were, of the evils of which they have complained; and it is presumption to suppose that they will abandon the ground on which they have stood so long and so heroically and accept contentedly a reinstatement in our new State of the old servitude which they have in the past times found so grievous. We must also remember this fact, that while the Union part of our community are anxious, many secessionists are really anxious to be over here from eastern Virginia. While that has been the common sentiment of all the people of northwestern Virginia for years, it has been already claimed, a cry has gone up and we must recollect it, that when we are called on to vote on this very question there is a portion of the people in this country that are ready to oppose anything or support anything, ready to cry out against anything the Unionmen of the country are in favor of, and that no matter how much they might under other circumstances desire the very thing themselves. They will go naturally for any measure that will beat us down.

MR. STUART of Doddridge rose to say that he waived the courtesy usually accorded the mover of having the last word in the argument. He got up to move the previous question. The President said he would put the question direct, as there appeared to be no disposition to speak further.

MR. BROWN of Preston called for the yeas and nays, and they were ordered and taken, resulting as follows:

YEAS - Messrs. John Hall (President), Brown of Kanawha, Brumfield, Dering, Dolly, Hansley, Haymond, Harrison, Hubbs, Lauck, Montague, McCutchen, Robinson, Simmons, Stephenson of Clay, Stuart of Doddridge, Soper, Taylor, Walker, Warder, Wilson - 21.

NAYS - Messrs. Brown of Preston, Brooks, Battelle, Chapman, Galdwell, Dille, Hall of Marion, Hervey, Irvine, Lamb, Mahon, O'Brien, Parsons, Powell, Parker, Paxton, Pomeroy, Ruffner, Sinsel, Stevenson of Wood, Stewart of Wirt, Sheets, Trainer, Van Winkle - 24.

So the amendment to the amendment was rejected.

MR. VAN WINKLE. I move we adjourn.

The motion was agreed to and the Convention adjourned.

November 26, 1861 November 27, 1861 November 29, 1861 November 30, 1861 December 2, 1861 December 3, 1861 December 4, 1861 December 5, 1861 December 6, 1861 December 7, 1861 December 9, 1861 December 10, 1861 December 11, 1861 December 12, 1861 December 13, 1861 December 14, 1861 December 16, 1861 December 17, 1861 December 18, 1861 December 19, 1861 December 20, 1861 January 7, 1862

January 8, 1862 January 9, 1862 January 10, 1862 January 11, 1862 January 13, 1862 January 14, 1862 January 15, 1862 January 16, 1862 January 17, 1862 January 18, 1862 January 20, 1862 January 21, 1862 January 22, 1862 January 23, 1862 January 24, 1862 January 25, 1862 January 27, 1862 January 28, 1862 January 29, 1862 January 30, 1862 January 31, 1862 February 1, 1862

February 3, 1862 February 4, 1862 February 5, 1862 February 6, 1862 February 7, 1862 February 8, 1862 February 10, 1862 February 11, 1862 February 12, 1862 February 13, 1862 February 14, 1862 February 15, 1862 February 17, 1862 February 18, 1862 February 12, 1863 February 13, 1863 February 14, 1863 February 16, 1863 February 17, 1863 February 18, 1863 February 19, 1863 February 20, 1863

Chapter Eleven: First Constitutional Convention of West Virginia