by Mark Stein
The wait lasted twelve years. In 1872, under arbitration headed by Germany’s Kaiser Wilhelm, the San Juan Islands were deemed to lie within the boundaries of the United States. The decision was based on the records of the original 1846 boundary negotiations, during which England had sought to have the boundary along 49th parallel turn south through the channel only to keep Vancouver Island in British possession, never mentioning any possession of the San Juan Islands.
Today this segment of Washington State’s boundary remains on the map, an artifact of Lyman Cutler’s triggering the Pig War, the only casualty of which was the pig.
· · · COLORADO · · ·
ROBERT W. STEELE
Rocky Mountain Rogue?
Gov. Steele informs his constituents … that “the eyes of the Union are upon them.” … The eyes of the Union, we venture to say, have not even discovered the Territory.… Not one man in five hundred, we presume, in the country at large, is aware of the existence of any such political community as the Territory of Jefferson. In point of fact, it has as yet no legal existence.
—NEW YORK TIMES, NOVEMBER 26, 1859
In the winter of 1859, a group of gold prospectors and miners in the Pikes Peak region of the Rocky Mountains idled away the time until the snow melted by deciding to take the law into their own hands and form a territory. No matter that they were already in a duly constituted U.S. territory, that being Kansas (which at the time extended west to the crest of the Rockies). The boundaries the mining men stipulated for their “Territory of Jefferson” went beyond the western region of Kansas, extending into the Nebraska Territory, Utah Territory, and New Mexico Territory.1
Territory of Jefferson, 1859-61
The idea had originated a year earlier and spread rapidly among the men working in the gulches and ravines. Spending the upcoming winter making their own territory would be a welcome alternative to drinking, brawling, and shooting each other. When the snows began, they held a convention, sent a proposal to Congress, and, when Congress did nothing, elected as their governor Robert W. Steele, a man who had been in the region less than a year. He and the legislature elected along with him then proceeded to write themselves a constitution and laws. Legally speaking, it was all very woolly.
Robert W. Steele (1820-1901) (photo credit 33.1)
Were these just a bunch of bewhiskered varmints thinking they could simply take control? One need only glance at their legislation. Take, for example, their law for evicting some scoundrel or squatter from one’s property. “Judgment of forfeiture and eviction,” it began, “may be rendered against the defendant whenever the amount of damages so recovered is more than two-thirds the value of the interest such defendant has in the property wasted, and when the action is brought by the person entitled to the reversion.” That sounds like lawyer talk, and indeed it was. Steele was a lawyer, and he had been a member of the Nebraska territorial legislature.2 While he was serving in that legislature, word came of gold in the foothills of Pikes Peak. After his term expired, Steele set out for the region, established a stake and a homestead, and was soon joined by his wife and children.
Steele was clearly not a woolly varmint. Indeed, he and his cronies were trying to rein in the woolly varmints. Being hundreds of miles from the nearest Kansas sheriff, the region’s bandits, disputants, and liquored-up miners were misbehaving with impunity in the settlements that had sprung up in a matter of months. In lieu of threats, assaults, murders and vigilantes, Steele and his cohorts sought to substitute due process of law.
The Territory of Jefferson, which at first glance appears to have been a wild and rebellious creation, was actually the opposite. Its founders were seeking to create a government only because the established governments—both in Kansas and Congress—had failed to do so.
In fairness to Kansas, only a year earlier this western region of its sprawling territory had been nothing but desolate hills, described in an earlier military exploration as “uninhabitable by a people depending upon agriculture for their subsistence.”3 When the discovery of gold suddenly brought hordes of inhabitants, Kansas, itself only four years old, had its hands full with the much bloodier issue of slavery.
Kansas struggled during its first four years to decide whether or not to permit slavery, as permitted in the Kansas-Nebraska Act. Among the thousands of advocates, pro and con, who entered the state to vote on this issue, many joined paramilitary armies that attacked each other’s settlements in pitched battles. Flattered as Governor James Denver may have been to have a gold rush town named after him, deciding whether to deploy his overwhelmed resources toward the suppression of paramilitary armies close to home or brawlers and gun slingers in the western mountains was a no-brainer.
Congress too could have stepped in by acting upon the proposal sent by the men who had convened at Denver. Indeed, Congressman Alexander Stephens proposed the creation of a Territory of Jefferson in January 1859. But Stephens, a Southerner, had been the floor manager for approval of Kansas’s first proposed constitution, which was proslavery. That effort failed. This one was relegated to a committee. Slavery continued to paralyze Congress.
The mining men responded by simply declaring themselves a territory and holding their first election. Governor Steele deftly navigated the legal white water. To avert conflict with Kansas or Congress, should they seek to act upon their jurisdictions, his administration always included the word “provisional” in its territorial documents. Although its provisional laws specified the taxes it would levy and the salaries it would pay, Steele received no compensation nor authorized payments to anyone. Likewise, his administration collected no taxes, since Steele knew that any revenue they received could be challenged—probably successfully—in federal court.4 When elections for the legislature were held again the following year (after Congress again failed to act), Steele cautioned the candidates, “All persons who expect to be elected to any of the above offices should bear in mind that there will be no salaries or per diem allowed from this territory.”5
Steele and his colleagues also averted conflict regarding the ad hoc miners’ courts that had previously sprung up in various camps. While the provisional laws of the Jefferson Territory established county courts, district courts, and a supreme court, they also included the miners’ courts. This provision limited the miners’ courts to disputes regarding “mining claims and miners’ interests.” But no effort was ever made to assert the jurisdiction of a county court over a miners’ court—though litigants often disputed which of the two illegally created venues was the appropriate venue.6
On January 30, 1861, Congress again took up a motion to create the Jefferson Territory. This time, rather than being relegated to a committee, the motion was subjected to debate, with ensuing arguments over whether to name the territory Jefferson or Idaho or Colorado. Colorado won out, and three weeks later President Buchanan’s signature turned the less-than-legal Jefferson Territory into the fully official Colorado Territory.
Why was it suddenly so easy? Earlier that month, Mississippi, Florida, Alabama, Georgia, and Louisiana had seceded from the Union and were no longer participants in the issue. South Carolina, too, was gone, having left in the previous month.
Steele had achieved his goal, but it cost him his job. The national crisis caused by secession, which enabled Congress to create Colorado, also caused outgoing President Buchanan, a Democrat, to put country above politics and leave the appointment of a territorial governor to his Republican successor, Abraham Lincoln. President Lincoln appointed William Gilpin, a Republican, to replace Steele, a Democrat. Party affiliation, however, was only one element in the decision. Though Steele had legal and governmental expertise, that contribution was now in place. Gilpin had a military background and a wide-ranging knowledge of the western territories. If war commenced, his military skills would be of more value.
Steele, for his part, recognized this. He issued a proclamation dissolving the Jefferson Territory and urging the citizens of the Colorado Territ
ory to remain “loyal and true” to the U.S. government.
Robert W. Steele’s days in the limelight were over. He returned to his work in the mining industry and, four years later, moved with his family to Iowa to secure better educational opportunities for his children. But he had been a father of Colorado as well, and he later returned to his out-of-wedlock territory, living to see it become the nation’s thirty-eighth state. He passed away in Colorado Springs in 1901 at the age of eighty-one, surrounded by his family.
· · · WEST VIRGINIA, VIRGINIA · · ·
FRANCIS H. PIERPONT
The Battle Line That Became a State Line
The consent of the legislature of Virginia is constitutionally necessary to a bill for the admission of West Virginia becoming a law. A body claiming to be such legislature has given its consent. We cannot well deny that it is such, unless … [it] was chosen at elections in which a majority of the … voters of Virginia did not participate. But it is a universal practice … to give no legal consideration whatever to those who do not choose to vote.
—ABRAHAM LINCOLN1
In the U.S. Capitol’s Statuary Hall, Francis H. Pierpont stands commemorated in marble as “the Father of West Virginia.” Yet, technically, he never lived in West Virginia until five years after it became a state. “Technically,” however, is no small matter in this instance. It is what gave birth to West Virginia: a technicality discovered, and put to use, by Francis Pierpont.
West Virginia became a state in the midst of the Civil War. Previously, it had been part of Virginia, which encompassed the Tidewater region (its flat coastal lands), the Piedmont (its rolling hills leading west to the Blue Ridge mountains), the Shenandoah Valley (between the Blue Ridge and the Alleghenies), and western Virginia (the Alleghenies and the land beyond to the Ohio River).
One could say that after Virginia seceded from the Union, western Virginia seceded from Virginia. Legally, that was precisely what it did not do. Since the federal government considered it illegal to secede from the Union, it would have also considered it illegal for western Virginia to secede from Virginia. Thus, for western Virginia to secede from Virginia, it had to devise an approach rooted in the illegality of secession.
Francis H. Pierpont (1814-1899) (photo credit 34.1)
Virginia at the onset of the Civil War
But why would western Virginia have wanted to secede from the revered and influential Old Dominion? The short answer is that the region opposed slavery, but there was more to it than that. Most of its residents did oppose slavery, though their righteousness was likely buttressed by the fact that most could not afford them. The region’s mountainous topography was poorly suited to agriculture. Its mountains, moreover, were ideally suited for escape.
But western Virginia’s wish to secede resulted more directly from an issue at one remove from the slavery conflict. Slaves in Virginia were counted as three-fifths of a person for purposes of apportioning representation in the state legislature (though, of course, slaves could not vote). This formula reflected that which had been used in the U.S. Constitution, and it resulted in slave regions having greater representation than nonslave regions. Western Virginians repeatedly sought to abolish the use of that formula in the Virginia state constitution.
Disproportionate representation was made even more disproportionate by the fact that the authors of Virginia’s constitution (among them, Thomas Jefferson, James Madison, and George Mason) had embedded a property-value requirement for voting in the document. Because many western Virginians barely eked out a livelihood in their hardscrabble terrain, this requirement created a further disparity in representation.
The anger of western Virginians would have been among Francis Pierpont’s earliest memories. As far back as 1817, when he was a three-year-old on the family farm and tannery, the region’s discontent was surfacing in newspapers. Washington, DC’s National Advocate quoted one of the region’s residents: “Western Virginia is ruled with a rod of iron; and unless … we can obtain a change in some manner, our castigation will be so severe that we shall not be able to bear it. We are treated … as a deserted step-child, instead of the legitimate offspring of Virginia.”
Virginians who supported the property requirement for voting feared that giving voting representation to those without a certain level of wealth would “transfer power into entirely new hands,” resulting in “many evils and inflict crying injustice.”2 In 1830, however, the mounting discontent in western Virginia over the issue of representation caused the state to hold a new constitutional convention. Ironically, the property requirement for voting resulted in western Virginians being as underrepresented at the convention as they had been in the legislature. As a result, only marginal changes were made in the 1830 constitution, and they backfired. As the National Journal commented, “That section of the state will never be satisfied to remain a portion of the Old Dominion unless there shall be a still further extension of the right of suffrage.”
Ten years later, the 1840 census introduced a new element into the equation—one that riveted the attention of the nation’s antislavery movement. The Liberator reported in March 1842:
The recent census develops the fact that a majority of the white population [of Virginia] lies west of the Blue Ridge, in the free labor part of the State. Yet the eastern counties have nearly three-fourths of the political power by the amended constitution.… The subject is now before the legislature, and the [antislavery] Richmond Whig advises the Western Virginians to demand either concession to their demands or the formation of a new State, bounded east by the Blue Ridge.
Though the abolitionist press focused exclusively on the slavery aspect of the dispute, underrepresentation continued to spark complaints among western Virginians regarding inequitable schools, roads, and railroads.3
Pierpont was, by this time, a successful attorney in western Virginia. With only intermittent months of education available at a local one-room school, his parents had encouraged him to read what books they had and to seek a college education. But no college existed in western Virginia until after Pierpont had entered Allegheny College in northwestern Pennsylvania. After graduating with honors, he became a schoolteacher near his home in Fairmont. Many Americans were migrating westward at the time, and Pierpont too chose to relocate. He, however, went south, becoming a teacher in Pontotoc, Mississippi, for reasons no longer known. Whatever the reasons, the choice displayed a recurring pattern in Pierpont’s life: his willingness to embark with others on a major move, yet moving in his own direction.
During his years as a teacher, Pierpont was also learning law. After returning home in 1841, he became a licensed attorney. His keen legal mind won him the Baltimore and Ohio (B&O) Railroad as a client, representing its interests in nearby counties. After the Virginia legislature yielded in granting the B&O permission to lay track in western Virginia, the railroad’s main line ended up passing through Fairmont, near to which he opened a coal mine. By the early 1850s he was a wealthy and prominent man, married to a well-bred, abolitionist wife from the North.
Also by the early 1850s, the next census had shown that over 10,000 more whites now lived in western Virginia than in the rest of the state. At the same time, the conflict between western Virginia and the rest of the state regarding slavery had also grown by leaps and bounds (as it did nationwide following the tumultuous Compromise of 1850). In 1851 presidential aspirant Daniel Webster cast his strongly pro-Union gaze on western Virginia, in a speech closely followed nationwide. “Ye men of Western Virginia … what course do you propose to yourselves by disunion? If you secede, what do you secede from, and what do you secede to?” Webster asked, imploring the people of the region to consider that their economy was more connected to the nation’s hinterland than to the rest of Virginia. “Do you look for the current of the Ohio to change, and bring you and your commerce to the tide-waters of eastern rivers? What man in his senses can suppose that you will remain part and parcel of Virginia a month after Virginia should
have ceased to be part and parcel of the United States?”4
Four months later, Virginia sought to consolidate the loyalty of its western residents by ratifying yet another constitution, this one extending voting rights to all white male residents over twenty-one, regardless of whether or not they owned any property. But it was too late. Though it resolved the conflict over representation, the conflict over slavery now dominated the political landscape, and the new constitution did not move that mountain.
The equation changed yet again on November 6, 1860, the day Lincoln was elected president. One month after his inauguration, Virginia voted to secede. Pierpont, a delegate to that April 1861 convention on secession, hurried home with the news. His longtime friend Alston G. Dayton later recalled:
The people stood and listened dumbfounded.… They gathered in knots on the streets and corners in the towns and villages, at the country stores and crossroads, and with bated breaths whispered to each other, “What does it mean?” … [But then] they began to ask … why should they be menaced, devastated, destroyed, because the seashore planters will it so? … Their anger rose to fever heat.… They would protest. They would have another convention.… They would secede from the seceding Virginia.5
Within a month, western Virginians did indeed convene in Wheeling to decide upon a course of action. Leading the effort to secede from Virginia was John S. Carlisle. Pierpont opposed Carlisle’s proposal. He pointed out that, because the federal government maintained that states could not secede from the Union, it could not then recognize a state that had seceded from its parent state. Moreover, he cited the clause in the U.S. Constitution that declares, “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.” Since Carlisle’s proposal would erect a new state within the jurisdiction of Virginia, Virginia would have to consent, and that was not going to happen.
