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West Virginia’s Civil War–Era Constitution

Loyal Revolution, Confederate Counter-revolution, and the Convention of 1872

John E. Stealey III

Publication Year: 2013

A comprehensive constitutional and political study of a new state’s fiercely contested establishment during the Civil War era

When western Virginians separated from the Commonwealth of Virginia to form West Virginia, the distinctive action reflected five decades of deep dissatisfaction with the Commonwealth’s regressive constitution and the governmental procedures that protected slavery. The westerners’ creation of a new state was revolutionary in the context of U. S. statecraft. New constitutional approaches and laws addressed past wrongs and the realities of war. Grave external and internal forces, sometimes armed, opposed West Virginia’s creation and establishment of civil order and state institutions.

The state-makers resorted to statutory and constitutional measures, often arbitrarily applied, to preserve the state, their legislation, and their political position. Some enactments removed state citizenship and the franchise from the disloyal; enabled the seizure of rebel property; required oaths of past loyalty for voting, suing in courts, and for the practice of professions such as teaching, law, and other pursuits; and established a stringent registration system administered by the loyal to prospective voters. Returning Confederates, along with stay-at-home sympathizers, and opponents of national policies organized a political and legal assault that succeeded.

Rejecting the hackneyed and inaccurate concept of “Reconstruction” as it reflects rebel assertions, author John Stealey reinterprets West Virginia’s post–Civil War constitutional and political development within the counter-revolutionary framework. The Democratic/Conservative opponents of the Republican state-makers rode to power after seven years on the issues of race and the existence of wartime and postwar statutory and constitutional enactments that assured temporary state security and political dominance of the loyal. The torturous and complicated path to counter-revolutionary success and change occurred within the context of national events.

A primary counter-revolutionary goal was drafting a new constitution to replace the state-makers’ original of 1861–1863. The Constitutional Convention of 1872 was the culmination of the quest for power. Stealey presents for the first time a comprehensive account of the debates and acts of the constitutional convention that reflected the Virginia and wartime experiences of delegates as well as the counter-revolutionary aims of the overwhelming Democratic/Conservative majority. This framework still serves as the Mountain State’s fundamental law.

Published by: The Kent State University Press

Title Page, Frontispiece, Copyright

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pp. v-vi


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pp. vii-viii

Tables and Maps

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pp. ix-x


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pp. xi-xvi

Bibliographical Abbreviations

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pp. xvii-xx

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Introduction: Counter-Revolution, Not Reconstruction

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pp. 1-24

For a century and a quarter, the courts, lawyers, and a few historians of West Virginia have been interpreting the thirty-fifth state’s Constitution of 1872 in the absence of convention debates. Legal officers and academic students have attempted to determine the rationale and original intention of the framers from what fallible contemporary...

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1. Republican Professions, an Undemocratic Reality

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pp. 25-36

When various academic and other writers attempt to explain the basic reasons for western Virginia’s estrangement with eastern Virginia and the eventual formation of a separate state, they invariably emphasize sectionalism in its various manifestations as the underlying cause. The obvious importance of sectionalism as a reality...

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2. Virginia’s Extremity, Western Virginia’s Opportunity

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pp. 37-71

After the Virginia Convention of 1850–51, western Virginians stood constitutionally dissatisfied as they watched the national events involving slavery and sectionalism enflame the eastern portion of their commonwealth. In mid-decade, some of them, especially in the Northern Panhandle, began to be attracted by the free labor ideology of the Republican Party. Meanwhile, intrastate issues festered...

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3. The Constitutional Revolution

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pp. 72-106

The act of creating West Virginia was a constitutional process that had to pass muster with all three branches of the U.S. government within the meaning of the Constitution of the United States of America. Western Virginia state makers displayed scrupulous regard in following all appropriate procedures...

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4. The Loyal State Sows the Seeds of Reaction

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pp. 107-125

During the Civil War, West Virginia, lacking stable civil authority in some of its territory, participated fully in the national war effort. The Boreman administration and Republican legislators developed policies and procedures to extend civil order, to maintain internal security, and to cope with militant...

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5. Democratic Stirrings and the Racial Catalyst

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pp. 126-139

Political opposition to the West Virginia Legislature’s proscriptive measures and to Governor Arthur I. Boreman’s administration and enforcement of them was immediate and continuous. Former Confederates had no direct means other than words, the courts, and extralegal acts to oppose various test oaths, the...

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6. The Republican Party’s Banquo’s Ghost

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pp. 140-159

The probable national ratification of the Fifteenth Amendment, the declining Republican victory margins in state elections, and the increasing passage of time since the war caused deep Republican introspection about their course to achieve future political success. The party’s fate, even its survival, in West Virginia...

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7. Controlling Banquo’s Ghost in a Changing Political Wind

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pp. 160-180

Although West Virginia Civil Era politics never knew a dormant season, around 1 September 1869 normal political intensity traditionally magnified preparatory to the annual October legislative elections. Over the previous months, Granville Davisson Hall and Wheeling Republicans, suffering from electoral losses...

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8. Race, the Fifteenth Amendment, and the Flick Amendment

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pp. 181-191

Ever since the U.S. Congress presented the Fifteenth Amendment to the states for possible ratification, West Virginia politicians privately reckoned what the impact of black male voting numbers might have on state politics. West Virginia had been the third state, after Nevada and Louisiana, to ratify the Fifteenth Amendment...

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9. The Counter-Revolution’s Black Path to Electoral Success

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pp. 192-234

Despite Democratic Executive Committee chairman Lewis Baker’s acquiescent editorial that advised Democrats not to fight the fixed facts of ratification of the Fifteenth Amendment and the Flick Amendment proposal enfranchising African Americans, many Democratic leaders and Baker soon abandoned their temperate...

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10. What the Redeemed and Disenthralled Do: The Defining Legislature of 1871

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pp. 235-269

The most enthusiastic public celebration of the West Virginia Democratic/Conservative triumph occurred in Charlestown, Jefferson County, where John Brown had met his fate. Within a week of the election, citizens had erected an eighty-five-foot pole crowned with a crowing rooster in front of the damaged and...

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11. The Referenda

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pp. 270-321

Two days after the Ninth Legislature’s adjournment, West Virginia’s fourth governor and first Democratic one, John Jeremiah Jacob, was inaugurated on a gloomy 4 March on the capitol’s front steps. Incidents at the inaugural’s various social events reflected the sometimes unpolished and rough and tumble nature...

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12. Delegate Elections

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pp. 322-339

Long before the convention referendum on 24 August 1871, partisan Democrats assumed passage and began considering prospective delegates. They also had vindictive goals of rejecting unacceptable individuals. Because of Democratic success in the October 1870 state elections and overwhelming...

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13. The Delegates: A Collective Biography

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pp. 340-391

Any study of a constitutional convention must rest upon the collective biography of its delegates. The delegates’ views, molded by their background and past experiences in all aspects, obviously and collectively created the constitutional and political result. Contemporaries and later historians often characterized...

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14. Democratic Rejoicing, Party Responsibility, and Serious Preparations

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pp. 392-400

After the selection of convention delegates and the state legislature that firmly placed political control into Democratic hands, Lewis Baker, editor of the Wheeling Daily Register and state Democratic Party chairman, counseled fellow Democrats of the heightened responsibility that accompanied rejoicing about their...

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15. The Convention Site at the “Permanent Seat”

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pp. 401-408

Post–Civil War Charleston was a town straining to revive its fortunes. Prior to the war, the Great Kanawha River town had enjoyed a boom-and-bust prosperity based on the extensive salt industry of declining national importance whose production field stretched from the town’s eastern limits up the river...

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16. Convention Organization, Procedure, and the Public Record

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pp. 409-419

At noon on Tuesday, 16 January 1872, the West Virginia Constitutional Convention met in the Court of Appeals room at the new state capitol in Charleston. Delegate Benjamin Wilson of Wilsonburg, Harrison County, called the assembly to order and nominated Charles James Faulkner of Martinsburg as temporary president...

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17. Preliminary and Emotional Convention Action

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pp. 420-429

While the standing committees prepared their reports and issued their recommendations on proposed constitutional provisions for Committee of the Whole and convention consideration, the convention addressed some emotional issues that reflected the dysfunctional aspect of formative-era West Virginia...

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18. Civil War Memories and the Bulwark of Freedoms: The Supremacy of the United States and the Bill of Rights

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pp. 430-445

Despite the war experiences that drove the majority in formulating the bill of rights, the place of the state, and state relations with the government of the United States, modern civil libertarians might well rejoice in the new, detailed bill of rights. Although the defined guarantees were based on tried-and-true English...

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19. Voting, Holding Office, and the Word “White”

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pp. 446-475

The proposed Article 3 of the constitution was part of the Standing Committee on Bill of Rights and Elections report, along with proposed Article 1, “The State,” and Article 2, the “Bill of Rights,” reported by Chairman Samuel Woods on 1 February. Debate on Article 3 began on 10 February after the initial consideration...

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20. Taxation, Finance, Corporations, and the Public Debt

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pp. 476-506

The Standing Committee of Taxation, Finance, and Education’s name indicated its broad jurisdiction over public policy questions, but its formal title did not fully delineate its extensive breadth of responsibility. In addition to the named areas of concern, it developed constitutional provisions that dealt with corporations...

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21. Free Schools, Not Free Common Schools

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pp. 507-531

Universal free schools came to West Virginia with the creation of the new state and the writing of its constitution. The issue of education was intertwined politically with other Civil War era issues. Political separation of constituencies that favored free schools from those who opposed them is difficult because of the...

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22. The Executive Department

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pp. 532-552

The convention delegates devoted much more of their attention and effort to the other two branches of government, the legislative and judicial, than they did to the executive. They expended even more consideration and work in forming county organization. Historical and realistic reasons accounted for this lack...

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23. The Judiciary

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pp. 553-585

Because of the obvious primacy of the law and its judicial interpretation and application in American society, many informed West Virginians considered the Committee on the Judiciary to be the most important of all convention committees. Most lawyers who were delegates aspired to be appointed to the Judiciary...

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24. The Legislative Department

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pp. 586-626

The Committee on Legislative Department considered the greatest volume of resolutions and prepared the most extensive report of any other standing committee in the convention. Although overshadowed by the committee on Judiciary in public impression of importance, the Legislative Department Committee...

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25. County Organization

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pp. 627-634

The work of the Committee on Judiciary and the Committee on County Organization substantially overlapped because the main county governmental body had judicial as well as administrative and legislative functions. Even the referral of delegate resolutions for standing committee consideration was ...

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26. Miscellaneous Provisions, Amendments, and the Thirteenth Amendment Too

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pp. 635-650

The convention Committee on Miscellaneous Provisions, as its name indicated, considered a wide variety of subject matter, some of great interest and importance, for possible inclusion into the new constitution. The plan of the Committee of Eight, adopted on 18 January, set what business would be referred to this...

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27. Amnesty for Civil War Acts

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pp. 651-657

Legal protection for acts committed in wartime and pardon for the political offense of rebellion were urgent issues for former West Virginia Confederates, including those in the Constitutional Convention of 1872. One of the primary legal themes on the local and state level was the tendency of Republican judges to...

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28. Land Titles

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pp. 658-665

From the beginning of European interest, few subjects concerned explorers and traders and later settlers more than issues regarding land tenure and its ownership, tax delinquency, forfeiture, and redemption. And, few matters were more complicated and occupied more lawyers and other agents since the American...

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29. The Schedule, the Racial Serpent, and a Confederate Adjournment

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pp. 666-681

The day before adjournment exposed the last stand on the issues that many troubled delegates saw as deficiencies in the almost-completed constitution. The debate about the schedule of implementation provided delegates—not reconciled to specific constitutional provisions—their last opportunity to...

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30. The Counter-Revolution’s Complicated Constitutional Referendum

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pp. 682-724

Enormous national and state political complexity in 1872 made the question of constitutional ratification extremely complicated, even for the often-murky standard of West Virginia politics. Before the Convention of 1872 began and ended, only one political given could be assumed. All Republicans opposed any proposed...


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pp. 725-786


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pp. 787-811

Back Cover

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E-ISBN-13: 9781612776392
E-ISBN-10: 1612776396
Print-ISBN-13: 9781606351369

Page Count: 1000
Publication Year: 2013

Research Areas


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Subject Headings

  • Constitutional law -- West Virginia -- History.
  • West Virginia. Constitution (1872).
  • Constitutions -- West Virginia.
  • West Virginia. Constitutional Convention (1872).
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