Rogue State (7 page)

“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.”
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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.
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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.”
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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.
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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.
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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.
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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.”

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.
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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.
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Despite Chase's contentions, there was and is no provision in the United States Constitution 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.
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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.
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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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In regard to the West Virginia constitution, the subject of slavery produced the most controversy. Delegate Gordon Battelle proposed gradual emancipation of slaves already in the state and freedom to all children born to slaves after July 4, 1865. That begged compliance with the Willey Amendment on which West Virginia's admission to the Union was pegged. Nor was it hardly the full and immediate abolition for which, by 1863, the Civil War was being fought and promoted by the North.
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Although some delegates in the Wheeling Constitutional Convention opposed Battelle's position, they knew they could not create a pro-slavery document and gain Congressional approval for such a constitution. And that approval was a condition for statehood.
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Yet the myth of West Virginians' general [as opposed to purely political] opposition to the institution of slavery persisted, as did the largely pro-Union [rather than anti-eastern and anti-Tidewater] political rationale and motivation for separation and statehood.

Following much debate and compromise, the provision written into the Wheeling constitution banned the introduction of slaves
or free African-Americans
into the state of West Virginia.
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It was hardly an emancipatory, egalitarian, or humanitarian statement. Rather, it clearly reflected the politically anti-slave, but racially and culturally anti-black, feelings of most white people in the region, especially in the areas removed from proximity to Pennsylvania and the Ohio River. The West Virginia state constitution did not address the issue of immediate or gradual emancipation, leaving ambiguous the status of several thousand present slaves in the western counties.
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When Congress addressed the West Virginia statehood bill, the U.S. Senate first rejected a statehood bill proposed by Restored “Virginia” Government U.S. Senator John Carlile. In fact, West Virginia's original application for statehood did not propose emancipation. Massachusetts Senator Charles Sumner demanded an emancipation clause to prevent creation of another slave state. Senator Carlile wanted a statewide election to decide the issue.
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Given the record and the attitudes displayed by many in the western counties on racial issues, the result of such a canvas might have been rejection of emancipation. After all, delegates to the constitutional convention in Wheeling chose not to insert emancipatory language in their original draft document. Carlile's disappointment over the U.S. Senate's rejection of a statewide [West Virginia] plebiscite on slavery was a major factor in his opposition to ratification of statehood by the Wheeling Convention after Congress approved it and the Willey Amendment.

On July 14, 1862, the Senate approved a statehood proposal for West Virginia which included the Willey Amendment. Carlile voted against the latter bill.
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The vote made Carlile a traitor in the eyes of many West Virginians, since it appeared that he was willing to forego statehood in defense of slavery. That in itself was a strange situation, for a supposedly anti-slave state to have a ‘Senator' behaving like the northern ‘doughfaces' of the 1840's and 1850's. Carlile himself was never again elected to political office.

Finally, a compromise between Senator Willey and Committee on Territories Chairman Benjamin Wade of Ohio, like Sumner a strong opponent of slavery, determined that, after July 4, 1863, all slaves in West Virginia over twenty-one years of age would become free. This became the Willey Amendment. Younger slaves would become free upon reaching the age of twenty-one. Apparently they would be in better hands if left as slaves with their masters rather than becoming wards of their newly emancipated parents! The Willey Amendment thus prohibited some slavery, but it continued to allow ownership of slaves under the age of twenty-one [some of whom presumably could remain in bondage for nearly twenty-one more years!].

But the larger issue regarding anti-slave sentiment in West Virginia again came to the fore. Anti-slave sentiment in western Virginia was a euphemism for anti-eastern influence and power, not a disposition among most of the region's white residents to favor emancipation or racial equality. The creation of West Virginia was hardly a wholesome element of the anti-slavery crusade.

Provisions to maintain the status of slavery for blacks under twenty-one, and the clear opposition to free African-Americans immigrating to the new state of West Virginia, indicated the racially charged and hostile atmosphere towards blacks west of the Blue Ridge. It also underscored the internal political motivation for separation of the western counties from the rest of slavery-dominated Virginia, as well as their eventual admission to the Union in 1863.