Those who care to look into the probable origin of this provision will be interested in the examination and comparison of 11 Heming's Statutes-at-Large, pages 569-70 and 326, referring to Virginia's cession of the northwest territory and the conditions she proposed-with two of Mr. Madison's papers in the Federalist, No. 38, page 299, and No. 43, pages 340-41. Our idea is that Section 3d of Article 4th is the guarantee Virginia demanded, though in another form. We think, that is, that the old guarantee demanded by Virginia, is the origin of the clause of the present constitution which Attorney-General Bates' opinion discusses.

2d. In the Reconstruction Acts.

The right to pass these statutes was claimed by Congress under what is termed "the guarantee clause" of the constitution, being Section 4th of Article 4th, which is in these words: "The United States shall guarantee to every State in this Union a republican Form of government, and shall protect each of them against invasion; and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence."

The position and principle are precisely the same as above. The question is a political one, and within the exclusive province of the political department. We will not go into the history of the efforts made to have the constitutionality of these laws tested. Any one who is interested can examine the cases for himself. The most important are State of Mississippi vs. Johnson, 4 Wal., 475; ex parte McCardle, 7 Wal., 506; and Texas vs. White, 7 Wal., 700. The McCardle case was never decided upon its merits, because, after it was argued and submitted, Congress took away the jurisdiction of the court. Some authorities regard Texas vs. White as settling the constitutionality of the acts. We do not regard it as departing at all from the principle of Luther vs. Borden, which it quotes with approval.

Our purpose is not in any manner to suggest the raising of any of these questions in the future. We regard them as settled, upon the distinct and conclusive ground that the courts cannot entertain jurisdiction of them. But, for this

very reason, because the courts never have reviewed and never can review the action of Congress in either of the momentous matters herein discussed, we deem it well the American people should for themselves examine the constitutional provisions involved, and the action of Congress in the premises, and pass their own judgment. We are happy, that, as to one of these questions, they may be aided, if not guided by the opinion of the legal adviser of President Lincoln's Cabinet,

ROBERT STILES.

CHAPTER IX.

RECONSTRUCTION IN WEST VIRGINIA.

HE history of the state of West Virginia during the reconstruction period does not differ greatly from that of the other border states. There was the same display of revengeful legislation, the same struggle of a minority to retain political power, that marked the transition between war and peace in Maryland, Missouri and elsewhere. The State Government being entirely in the control of the Republican party, and a full delegation of Republicans being present in both Houses of Congress, West Virginia was exempted from the operation of the reconstruction laws, and her people were left to deal with the problem of pacification in their own way, without interference by the Federal authorities and without much assistance from the tribe of carpet-baggers. The native Republicans were numerous enough to hold all the offices of value, and they were naturally averse to sharing the feast with strangers who came in after the fray. Hence the adventurers from Northern States, who played so conspicuous parts in the South in the years immediately succeeding the civil war, did not find a congenial field of operations in West Virginia and sought out other localities where the white Republicans were fewer and the negroes more numerous.

At the beginning of the war there was a strong Union sentiment among the people of the counties of Virginia now composing the state of West Virginia. There was a decided majority against the ordinance of secession; but after the war had actually begun, and the state of Virginia became the scene of conflict, very many of those who had voted against secession either enrolled themselves in the Confederate army or remained at home in either active or tacit sympathy with

the Confederate cause, so that in 1863 when the new state was formed, a large majority of the legal inhabitants of the counties embraced within its limits took no part in the transaction. Out of a voting population in 1860 of more than 50,000, the state of West Virginia started upon its career with the expressed consent and approbation of less than 19,000 votes. The Union sentiment was strongest in the counties lying along the Northern and Western borders, or along the line of the Baltimore and Ohio Railroad; it was weaker in the interior counties; while in the counties upon the Southern and Eastern borders it was almost non-existent, the `people being practically unanimous in support of the Southern cause. According to the reports of the Adjutant-General, the state of West Virginia was credited with furnishing to the Union army, from first to last, a total of 31,884 men. Several entire regiments which are credited to West Virginia, were recruited in Ohio or elsewhere, and officered by Ohio men. During the last two years of the war, when large bounties were paid for enlistments to complete the quota of troops called for, the volunteers cane almost entirely from abroad, and when substitutes were secured to take the places of conscripted men, these substitutes were for the most part obtained in Northern cities or were newly-arrived immigrants from abroad. It is now impossible to obtain any accurate figures as to the number of soldiers furnished to the Southern armies by the counties composing West Virginia. The muster-rolls have been lost or destroyed, and it is not known that any record even approaching completeness is now in existence. Recruiting was active in many of the counties at the beginning of the war; but when the Federal armies advanced in 1861, of course enlistment in the Confederate army ceased at all points within the Federal line, though it went on with increased activity and thoroughness in the counties not under Federal control, and it can scarcely be doubted that the total number of West Virginians who served at one time or another in the Confederate army exceeded by several thousands the number who espoused the Union cause.

These facts are mentioned here simply for the purpose of affording some clue to the relative strength of the parties

when the war closed and the era of reconstruction began. The returns of elections held at various times during the continuance of the war afford no trustworthy indication of popular sentiment. They are significantly one-sided, and show only that the people opposed to the party in power did not vote; not that they did not exist. The Constitution of 1863, and the officers elected under it, all derived their authority from a minority composed of scarcely more than one-third of the people of the state.

The Constitution of 1863 was, in the main, a fair, prudent and equitable instrument. True, it was afterwards warped by construction so as to tolerate the most proscriptive and unjust enactments, but that was the fault of the Legislature and the courts; the Constitution was right, but the courts were wrong. The Constitutional provision as to the elective franchise was contained in Section 1 of Article III. in these words:

"The white male citizens of the state shall be entitled to vote at all elections held within the election districts in which they respectively reside; but no person who is a minor, or of unsound mind, or a pauper, or who is under conviction of treason, felony, or bribery in an election, or who has not been a resident of the state for one year, and of the county in which he offers to vote for thirty days next preceding such offer, shall be permitted to vote while such disability contin

ues.

The Constitution declared in Section 6 of Article I., that, "The citizens of the state are the citizens of the United States residing therein."

These provisions are in the main similar to those relating to the same subject in the Constitution of Virginia and of other states, and the restrictions upon the suffrage are only those which are usually imposed. They are prospective in effect and attach to no crime a punishment which had not been ordained before the offence was committed, and the disability to vote is made contingent upon conviction of the crime.

The first Legislature held under the new Constitution adopted a number of "war measures," such as acts for the