These issues were not addressed. What about the arguments against West Virginia statehood articulated in Congress and Lincoln’s own cabinet? In any event, neither the vast majority of the people or the elected [seceded] legislature, governor, or courts of the state of Virginia itself ever consented to separation of the western counties, let alone separate statehood for them.
So occurred the breach birth of the rogue state of West Virginia.
8
ROGUE STATEHOOD
According to Article IV, Section III, of the United States Constitution, “New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.” (Author’s italics).
West Virginia’s statehood leaders should have had to obtain permission from Virginia in order to satisfy this constitutional restriction. That was hard to do given Virginia’s status as a ‘state in rebellion’ and the likelihood that such permission would have not been forthcoming had it been sought in Richmond. So they conveniently created their own “Restored” Government of Virginia and then gave themselves permission to leave! The convenient creation of a “Reorganized Government of Virginia” allowed those seeking separation of the western counties to seek consent from this anti-Tidewater, pro-Union body instead of the pro-Confederate Virginia government in Richmond.
On May 6, 1862, the General Assembly of the Reorganized Government of Virginia was convened by Governor Francis Pierpont. One week later, that General Assembly passed an Act Granting Permission for the Western Counties Assembled in Wheeling to Create the New State.59 This proved to be the ‘legal’ basis for separating the western counties from Virginia with its ‘assent.’ But was it legal? Was it constitutional? Did Virginia debate the issue or assent? Or was the creation of a new state named West Virginia a political expedient that Virginia was powerless, then and after the war, to halt?
On May 29, 1862, U.S. Senator Waitman T. Willey, representing, like U.S. Senator John Carlile, “Virginia,” presented a formal petition to the United States Senate for admission of West Virginia to the Union. Willey’s petition was referred to the Committee on Territories. Senator John Carlile, who was a member of that committee, was assigned the task of writing the statehood bill.60 Apparently no one was concerned about a potential conflict of interest in this regard, since Carlile [and Willey] technically “represented” the state of “Virginia.” That, however, was the political point. It was part of the legal fiction and subterfuge by which the “State of Virginia” assented to its own amputation and the separation of fifty of its western counties to form a new rogue state.
On June 23, Benjamin Wade, who chaired the Committee on Territories, reported the bill to the Senate. Carlile personally added fifteen counties to the new state, provided only for gradual emancipation, and required a new constitutional convention. The “old” Virginia constitution had to be replaced, even though Virginia was supposedly represented by the “Restored” government of Virginia and its creature, the constitutional convention in Wheeling.61
When the West Virginia statehood bill was introduced, Senator Charles Sumner of Massachusetts, an abolitionist, called for an amendment requiring emancipation of all slaves in West Virginia on July 4, 1863. This proposal was defeated.
Eventually, the Senate agreed on a compromise. Senator Willey offered a substitute that called for admission of West Virginia upon approval of gradual emancipation by its constitutional convention [in Wheeling]. The Willey Amendment, which provided for gradual emancipation, passed; and on July 14, 1862, the West Virginia statehood bill also passed the U.S. Senate by a vote of 23-17, with eight abstentions.62
Had even seven of those eight abstaining Senators cast their votes as negative votes against the statehood bill with the Willey Amendment, it would have defeated the proposal. [Abstaining from a vote is often a way of saying no without being recorded in opposition].West Virginia statehood would have been delayed. And an impasse over the issue of emancipation, clearly a sensitive topic in both the Senate and in the western counties, might have created an insurmountable roadblock for admission of West Virginia.
Carlile’s effort to secure admission of West Virginia to the Union without conditions [including any conditions related to abolition, which was the key issue] failed. Ironically, Carlile then opposed the Willey Amendment and voted against the statehood bill, ruining his political career.
For decades, historians have questioned Carlile’s actions. He had long been one of the region’s most prominent advocates for statehood, but eventually fought and voted against its creation. Although it is unclear what motivated Carlile, it appears that as a strict constructionist of the Constitution, he did not believe that Congress had the right to impose conditions in the new state’s constitution. And since he had originally supported no provision for emancipation in West Virginia, the addition of the Willey Amendment to the West Virginia statehood bill apparently was the political tipping point for Carlile.
Emancipation, either on principle or as a restriction on the new state, was a crucial factor. But then Carlile was flexible enough in his constitutional construction to allow consideration of the severance of the western counties and application for admission for statehood in the first place. So the questions remain.
Debate in the U.S. House of Representatives over admission of West Virginia as a state also was contentious. However, on December 10, 1862, the U.S. House passed the West Virginia statehood bill by a vote of 96 to 55. The two to one majority was substantial but far from overwhelming. Clearly, many in the North had reservations.63 The West Virginia statehood bill was signed by President Lincoln on December 31, 1862. At that point, it appeared that West Virginia was on the verge of attaining its notorious rogue statehood.
9
LINCOLN’S CONCERNS AND CONGRESSIONAL INTENT
President Abraham Lincoln received the West Virginia statehood bill on December 15, 1862. Lincoln had serious concerns and reservations. As was his style, the president asked the six members of his cabinet for written opinions on the constitutionality and expediency of admitting West Virginia to the Union. They divided evenly.64
President Lincoln had supported creation of the Reorganized Government of Virginia. However, he recognized that the West Virginia statehood bill was being forced upon him by so-called Radical Republicans 65 in their effort to use the war and West Virginia statehood to weaken Virginia an d expedite an end to slavery in the United States. President Lincoln recognized the questionable nature of the state’s creation, noting that “a measure made expedient by a war is no precedent for times of peace.”66
Abraham Lincoln was the greatest president in American history. He was also its most eloquent and inspirational. He has been mythologized beyond repair, however, often to the detriment of those who seek to find and enjoy the splendid human being who served as the nation’s sixteenth president. In the case of West Virginia, however, Lincoln clearly let his “Whig” political instincts get the better of his usually sound judgment by allowing Congress to steamroll West Virginia statehood into existence.
Lincoln himself had reservations pertaining to statehood for West Virginia, both stated [see above] and implied in his search for cabinet opinions on the matter. Had he truly believed in the constitutionality of West Virginia statehood, he could have and almost certainly would have pushed ahead in tandem with statehood advocates in Congress. Throughout the war, Lincoln did not shirk from assuming authority and power in the name of h is role as commander in chief. Those actions sometimes took the form of temporarily dissolving state legislatures [i.e., Maryland in 1861] and abrogating personal liberties and constitutional rights, which he deftly and unilaterally did as necessary.
Yet the key to the aforementioned actions is the word temporary. In the case of West Virginia statehood, the outco
me was permanent. Thus, Lincoln hesitated, equivocated, and demonstrated by such reticence his own lack of confidence in the constitutionality of the matter.
Despite his reservations, on December 31, 1862, President Abraham Lincoln signed the West Virginia statehood bill. It was a matter of political expediency. Lincoln believed that he could not afford to lose support from loyal West Virginians in the midst of the Civil War, although that contention is of mixed validity given the lack of military action in that region after 1861 and the inability of western Virginians to influence affairs in Richmond.
More importantly though, Lincoln also could not risk potentially alienating abolitionists in the North or the “Radical” Republicans in Congress, especially if his more lenient ideas for reconstruction after the war were to have a chance. Whether or not the calculus of that support for the Union in West Virginia at that stage of the war was militarily or logistically substantive or important by mid-1863 is another issue. It was not articulated in an evaluable form at the time. In his opinion, however, based on political considerations, Lincoln wrote optimistically and somewhat inaccurately.
“Doubtless those in remaining Virginia would return to the Union, so to speak, less reluctantly without the division of the old state than with it; but I think we could not save as much in this quarter by rejecting the new state, as we should lose by it in West Virginia. We can scarcely dispense with the aid of West Virginia in this struggle; much less can we afford to have her against us, in Congress and in the field. Her brave and good men regard her admission into the Union as a matter of life and death. They have been true to the Union under very severe trials. We have so acted as to justify their hopes; and we cannot fully retain their confidence, and co-operation, if we seem to break faith with them.”67
It was that, but more. As a philosophical Whig, Lincoln routinely deferred to Congress on most matters of domestic policy. While foreign affairs and the war were clearly areas for presidential leadership and initiative, the politics and philosophical underpinnings of the effort to create the new state of West Virginia were, to a ‘Whig’ politician like Lincoln, issues best left to the Congress. This was especially true if the separation of the western counties and admission of West Virginia to the Union served to advance Union war aims and efforts. And certainly, as Lincoln knew, the arguments in that regard were clearly on the side of creating the new state of West Virginia.
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The Congressional statehood bill required West Virginia to submit its revised constitution containing the Willey Amendment to the Constitutional Convention in Wheeling for approval.68 Delegates reconvened in Wheeling on February 12, 1863. Senator Willey presented the case to his fellow delegates for approval.
“Why should we hesitate to accept the great advantages before us? We have complied with every requisition of the law. We have fulfilled every constitutional obligation,” Willey asserted. “And now wealth and popular education, and material and moral progress and development, and political equality, and prosperity in every department of political economy, so long withheld from us, are all within our grasp.”69 So much for consideration of either preservation of the Union or emancipation!
A committee was appointed to consider the Willey Amendment. The committee was directed to study the possibility of compensating loyal slave owners for their financial losses. Never a popular solution in the western counties, the committee’s resolution for compensation was tabled. Then, on February 17, 1863, the Wheeling convention delegates unanimously approved the Wiley Amendment and the full revised state constitution for West Virginia.70
Despite efforts by Senator John Carlile and others to convince West Virginians to oppose the Willey Amendment [essentially opposition to the pro-emancipationist language of the Willey Amendment with which Carlile and his supporters took issue], voters in the emerging new state ratified the revised constitution for the state of West Virginia on March 26, 1863. The vote was a lopsided tally of 28,321 votes to 572.71 Upon receiving the results, President Abraham Lincoln issued a proclamation on April 20, 1863, declaring that in sixty days, on June 20, 1863, West Virginia officially would become the thirty fifth state of the American Union.
Two days later, West Virginia voters went to the polls on May 28, 1863, to elect their new state’s “permanent” government officials. Arthur I. Boreman of Wood County, was elected as the state’s first governor. Additionally, citizens of Jefferson and Berkeley counties [in the eastern panhandle, adjacent to Maryland] voted to become part of West Virginia. The federal government affirmed the latter action, another de facto secession of territories from the Commonwealth of Virginia without its assent.72
On June 20, 1863, West Virginia became the thirty-fifth state in the Union. Inaugural ceremonies were held in Wheeling, the initial capital of the new state. In his inaugural address, Governor Boreman referred to West Virginia as “the child of the rebellion.” He stated that “to-day after many long and weary years of insult and injustice, culminating on the part of the East, in an attempt to destroy the Government, we have the proud satisfaction of proclaiming to those around us that we are a separate State in the Union.”
10
WEST VIRGINIA CONSTITUTIONS AND POLITICS
The process by which West Virginia was created marks the only time in United States history that a state was created outside the boundaries of the prescribed constitutional process. The government of the United States abetted and created an illegal and unconstitutional façade to develop a rationale to justify secession, in this case secession of part of a sovereign state from another.
According to the United States Constitution, Congress, and the President, the Commonwealth of Virginia had never left the Union. Therefore, Virginia could not be compelled to forfeit any of its lands without its own consent. That issue of never recognizing the right or legitimacy of state secession was made consistently and adamantly by Lincoln, Congress, and the Republican Party prior to, during, and following the U.S. Civil War. Therefore, Virginia really never left the Union. And thereafter, Virginia never granted its consent.
Article IV, Section 3, of the U.S. Constitution states: “… no new states shall be formed or erected within the jurisdiction of any other state ; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress ….and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.” (Author’s italics).
Article IV, Section 4, continues: “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.” (Author’s italics).
The government of the United States had no constitutional or legal rights, including those implied in the war powers of the president acting as commander-in-chief, to abridge the rights of the duly elected government of the Commonwealth of Virginia, despite the fact that the state, as so often stated by President and the U.S. Congress, was in a state of rebellion. The crucial fact is that at no time did Lincoln or Congress ever acknowledge that Virginia and the other ten states of the Confederacy ever left the Union.
All of those points, and more, were made in the detailed opinion rendered for Lincoln by his Attorney General, Edward Bates. Bates concluded firmly that there were no legal or constitutional grounds for the admission of West Virginia.73
A contrary point of view from Treasury Secretary Salmon Chase carried the political perspective to the president’s desk. Chase’s key point, and the legal fictions on which the entire affair hung, was that West Virginia in effect was Virginia, had the right to truncate itself, and could allow the amputated portion to apply for separate statehood.74
Despite Chase’s contentions, there was and is no provision in the United States Const
itution to permit the federal government without due process of law to dissolve or replace the elected government, representatives, or officials of a state, even if those officials have violated an oath of office. Overall, the Cabinet split three and three. Attorney General Bates, Secretary of the Navy Gideon Welles, and Postmaster General Montgomery Blair were against the measure. Treasury Secretary Chase, Secretary of State William Seward, and Secretary of War Edmund Stanton were in favor of the statehood proposal.75
The United States Constitution requires that any new state formed from an existing state or states must gain approval from the original state[s] for separation. Following adoption of the U.S. Constitution and its implementation in 1789, West Virginia was only one of three states formed by separation of part of one state to form another. Vermont was formed from areas claimed by both New York and New Hampshire with the consent of both states. Massachusetts allowed Maine to form a separate state. Other lands west of the Appalachians that became future states [such as Kentucky, Tennessee, and the states of the old Northwest Territory] were formed from lands ceded earlier by the states under the Articles of Confederation prior to adoption of the Constitution.
Legal approval by Virginia for separation of its western counties never occurred in the formation of West Virginia. But since the “Restored Government of Virginia” was determined by President Lincoln and the Congress of the United States to be the legal government of Virginia, it literally granted permission to itself on May 13, 1862, to secede from the Old Dominion and form the new state of West Virginia.76
Thus, before and after their attempt to secede from what Lincoln correctly termed an ‘inviolable’ and permanent Union, Virginia and the states of the Southern Confederacy were entitled to the full protection of the U.S. government and the Constitution of the United States. That included freedom from dissolution of the elected governments in those states or severance of a state’s territories without the state’s consent. The process by which West Virginia was created and ‘admitted’ to the Union was unconstitutional and invalid. From birth, West Virginia was a rogue state.
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