Rogue State (8 page)

On December 10, 1862, the House of Representatives passed the bill to admit West Virginia. On December 31, President Lincoln signed the bill into law, approving the creation of West Virginia as a state loyal to the Union without it actually abolishing slavery. In regard to the issue of emancipation, it is true that such a topic was highly controversial, even after the momentous date of September 22, 1862 on which Lincoln issued the Emancipation Proclamation. But for Congress and-or the President not to require full and immediate abolition in the new state of West Virginia in 1863 suggests several things.

For political and military reasons, Lincoln and the Congress were in a hurry to slip West Virginia away from Virginia and into the Union. The military reasons were stated above. Politically, Republicans likely wanted to ensure West Virginia's electoral votes in time for support in the 1864 presidential election. However, the situation demonstrated that there was still serious division in western Virginia and the nation over the crucial issues of slavery and emancipation. In this case, politics overrode both constitutionality and principle.

Following Congressional and presidential approval, the next step was to submit the statehood issue to a vote by West Virginia's citizens. By that time, those citizens included residents of the fifty counties of the expanded state that had been determined by the ambitious politicians of the Wheeling Convention. On March 26, 1863, the citizens of those fifty counties approved the statehood bill, and the revised West Virginia state constitution, including the Willey Amendment. On June 20, 1863, the state of West Virginia officially entered the Union.

Subsequently, following the end of the war, the ‘Restored' Government of Virginia moved to Alexandria, Virginia and eventually to Richmond. That Reorganized Government of Virginia continued to function as the Union government of Virginia until 1868 when a reconstructed government in Richmond took its place in the remaining portion of the Old Dominion. Virginia governments apparently came and went easily. At that time, the Reorganized Government of Virginia then became the state government solely for the state of West Virginia.

Governor Francis H. Pierpont directed a post-war election to allow residents of Jefferson and Berkeley counties, areas already slated to be part of West Virginia by virtue of their vote on May 28, 1863, to determine whether their counties should remain in West Virginia or Virginia. Union troops were stationed outside polling places to intimidate those who might vote for Virginia. Despite local support for Virginia, residents who actually completed ballots voted overwhelmingly to place both counties in West Virginia. In 1870, in
Virginia v. West Virginia, 78 U.S. 39
, the United States Supreme Court confirmed that decision and awarded Jefferson and Berkeley counties to West Virginia.

That decision, however, did not address directly the actual process or admission of West Virginia to the Union. The Supreme Court did state in the
Virginia v. West Virginia
[1870] opinion that West Virginia's admission resulted from a valid agreement between “a state” [Virginia] and the federal government.

But again, the real questions remained unanswered. Did Virginia, or rather just a small dissident group of western Virginians acting and speaking for the entire population of the Old Dominion, consent to its own dismemberment? And did the government of the United States condone illegal and unconstitutional acts of rebellion and secession by those western counties in 1863?

Deep and serious sectional and political differences continued in the new state of West Virginia. Public demands for separation from Virginia had come primarily from northern towns and cities, especially around Wheeling and Parkersburg, where ties to Midwestern commerce and the Ohio Valley were strongest and desire for independence from the eastern slave establishment of Virginia was greatest. Extension of the Baltimore and Ohio Railroad west to Wheeling in 1853 and southwest to Parkersburg in 1857 made the northwestern area of Virginia less focused and dependent on Richmond and eastern Virginia markets, just as sectional divisions over slavery and states' rights were leading the nation to civil war. Smaller southern communities in West Virginia, however, were more closely tied economically, politically, and culturally to southern ways and Virginia.

Other divisions continued in West Virginia after the Civil War ended. Addition of the Fourteenth and Fifteenth Amendments to the U.S. Constitution reopened the West Virginia debate over slavery and racial equality. And it produced a divisive and dramatic reaction.

The Democratic Party secured control of West Virginia's state government in 1870. In 1871, following adoption of the Fifteenth Amendment to the Constitution, the new state of West Virginia actually abrogated its acceptance of the Fourteenth Amendment [originally adopted by West Virginia in 1866].

First steps in this regard already had been taken by West Virginia Republicans in 1870. Thus, critical issues related to emancipation and civil rights showed bipartisan opposition to equality for freed slaves and African-Americans in the state.

On August 22, 1872, an entirely new West Virginia state constitution was adopted that included recognition of the Fourteenth and Fifteenth Amendments, non-recognition of which might have jeopardized West Virginia statehood. But the differences and prejudices continued. In fact, pro-Southern and anti-black aspects of the 1872 West Virginia constitution, as well as the reality of subsequent political behavior and state laws, already linked West Virginia for the next century and a half with the
status quo
, segregationist South.

The long and bloody American Civil War ended with the surrender of General Robert E. Lee to General Ulysses S. Grant at Appomattox Courthouse on April 9, 1865. Nearly two years earlier, on June 20, 1863, the fifty western counties of the Old Dominion joined the Union as the state of West Virginia.

As a result of the Civil War, nearly 500,000 Virginia slaves gained their freedom. Over 600,000 Americans died in the conflict, many from western Virginia, most of them fighting on the side of the Union. The Old Dominion had to accept provisions of the Reconstruction Acts of 1867 in order to regain statehood and reinstatement to the Union. In October 1867, a convention met in Richmond. The resulting constitution contained all the required measures, and on July 6, 1869, the Virginia electorate approved it.

In January 1870, Virginia returned to the Union. It returned minus fifty western counties. Not surprisingly, the Constitution of 1869, frequently referred to as the Underwood Constitution, was never popular among the large numbers of Virginians who cherished their pre-war institutions, and who had not consented to the territorial reduction of their state.

Through that action of approval, however, the state of Virginia gave implied consent to the wartime severance of its western counties and creation of the new rogue state of West Virginia. In the process, the Old Dominion of Virginia lost nearly thirty five percent of its land area and about a quarter of its pre-war population. Virginia in that way appeared to recognize the legality and existence of West Virginia.

The Commonwealth of Virginia has never sought legal relief, constitutional remedy, or the return of the fifty [fifty five] separated counties.

The rogue state of West Virginia remained in the Union.

Documents relating to divisions and differences in Lincoln's Cabinet over statehood for West Virginia.

(Italics within the following documents were added by the author for emphasis).

1. Letter from President Abraham Lincoln to the United States Cabinet, Washington D.C., December 23, 1862.
   
2. Letter from U.S. Attorney General Edward Bates to
   President Abraham Lincoln, Washington, D. C.,
   December 27, 1862.
   
3. Letter from Salmon P. Chase To President Lincoln,
   Washington, D.C., December 29, 1862
   

1. Letter from President Abraham Lincoln to the United States Cabinet, Washington D.C., December 23, 1862.

Executive Mansion
Washington, December 23, 1862
Gentlemen of the Cabinet

I respectfully ask of each [of] you, an opinion in writing, on the following questions to wit:

A bill for an Act entitled “An Act of the admission of the State of ‘West Virginia' into the Union, and for other purposes,” has lst., Is the said Act constitutional?

2nd.

Is the said Act expedient? passed the House of Representatives, and the Senate, and has been duly presented to me for my action.

Your Obt. Servt.
Abraham Lincoln

2. Letter from U.S. Attorney General Edward Bates to President Abraham Lincoln, Washington, D. C., December 27, 1862.

Attorney General's Office

December 27, 1862

1. Is the said Act constitutional?

2. Is the said act expedient?

The President having before him for his approval a bill passed by both Houses of Congress, entitled an “Act for the admission of the State of West Virginia into the Union, and for other purposes,” has submitted to all members of the Cabinet, separately, the following questions, for their opinion and advice thereon.

I am of opinion that the bill is not warranted by the Constitution. And, in examining this proposition, I think it will be the more clearly apprehended, if viewed in two aspects:

1. In the letter of the particular provision, and

2. In the spirit, as gathered from the letter, from the whole context, and from the known object.

First, the letter-Art. 4, S. 3. “New States may be admitted by the Congress into this Union; but no State 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.”

I observe, in the first place, that the Congress can admit new States into this Union, but cannot form States: Congress has no creative power, in that respect; and cannot admit into this Union, and territory, district or other political entity, less than a State. And such State must exist, as a separate independent body politic, before it can be admitted, under the clause of the Constitution- and there is no other clause. The new State which Congress may admit, by virtue of that clause, does not owe its existence to the fact of admission, and does not begin to exist, coeval with that fact.

For, if that be so, then Congress makes the State; for no power but Congress can admit a State to the Union. And that result, (i.e. the making of the State by Congress) would falsify the universal and fundamental principle of this country that a free American State can be made only by the people, its component members. Congress has no power to make a State.

It is not very important to my argument whether the last clause of the sentence quoted - “without the consent of the legislatures of the States concerned, as well as of the Congress,” do nor do not apply to the case of a new State “formed or erected within the jurisdiction of any other State” as well as to the case of a new State “formed by the junction of two or more States of parts of States.” If it do[es] not apply, then there stands the naked unconditional prohibition of the formation of a new State, within the jurisdiction of any other state - direct, simple, and incapable of being misunderstood.

If, admitting that the clause does not apply, it be claimed that the prohibition is overruled and annulled by practice, in the case of Maine, Kentucky, and Tennessee, which were, respectively, “formed and erected within the jurisdiction” of Massachusetts, Virginia and North Carolina, I have two alternative answers: In the absence of proof to the contrary, I assume, that both Congress and the people did obey the Constitution, and fulfill all its requirements, in form and substance. If it be shown that in those instances, the Constitution was disregarded and broken, still I insist that those abuses, do not absolve us from the duty to obey the plain letter and sense of the Constitution.

But if the clause do [sic] apply, still, in this case, its terms have not been complied with. It speaks in the plural - “the legislatures of the States concerned” — i.e. Virginia and West Virginia. The consent required by the Constitution is not the consent of the State, generally, nor of its Governor, nor its Judiciary, nor its Convention, but “the consent of the Legislatures of the States concerned.” And that is not the only instance in which the Constitution vests long important powers in the Legislatures of the States – They choose the Senators absolutely, and they direct the manner in which electors of President and Vice-President shall be chosen. And these are Constitutional functions which cannot be exercised by substitute, nor usurped by any other functionary.

The division and allotment of powers, as established by the Constitution is not mere form, but vital substance, dear to our fathers, who designed and used it as a guard against the unity of powers-to prevent the concentration of power in a single hand or a few hands.

Here, the proposition is to make two states out of one. Each one, of course, must have a legislature, and the Constitution requires the consent of both legislatures, before the thing can be done. Now, it is said that the legislature of Virginia (Old Virginia) has consented; but it is not pretended that the legislature of West Virginia has consented- nor that there is, in fact, any such legislature to give consent.

It is a very grave and important thing to cut up and dismember one of the original States
of this nation-for a time, in our national youth, the greatest of all-and if we must do it, it behooves us to know that we are acting within the letter of the Constitution, and with a decent respect for the forms of law. (Author's italics).

So much for the letter of the law. Let us now examine a little into the sense and spirit of it. When the rebellion broke out, all the State authorities of Virginia joined it, and made organized and official, as well as individual, insurrection against the national government, defying its power, and, in order the more effectually to resist it, inviting invasion from States further South. Still a remnant, chiefly in the northwestern counties, remained faithful; and the duty rested upon this government to protect that remnant; to repel that invasion and suppress that insurrection; and thereby to restore Virginia, as she was before the insurrection, to her proper place in the Union.