Rogue State:

The Unconstitutional

Process of Establishing

West Virginia Statehood

By

Richard Owens

INTRODUCTION

Rogue State: The Unconstitutional Process of Establishing West Virginia Statehood is a study of the constitutionality of West Virginia statehood. It focuses on events leading to West Virginia’s application for and admission to the Union, and the constitutional issues related to those developments.

Rogue State seeks to address several questions, including the following:

How and why did West Virginia become a state?

How and why did “Virginia” consent to the separation of fifty of its western counties to create a new state?

What were the key military, political, legal, and constitutional issues involved in this process?

Who were the principal leaders of the separatist movement, and why did they seek separation from Virginia?

What were the roles of President Abraham Lincoln, his cabinet, and the United States Congress in the process of creating and accepting a new state for the Union in 1863?

Why has Virginia never sought to recover those western counties?

Rogue State: The Unconstitutional Process of Establishing West Virginia Statehood includes text, sources, and documents following the text and endnotes. Endnotes are found at the conclusion of the text. They are indicated in the text by parenthetical notations, i.e. (Note 1), (Note 2), etc.

Richard H. Owens, Ph.D.,

Powell, Ohio

May, 2012

1

OVERVIEW

West Virginia entered, and remains, in the Union under unconstitutional circumstances. West Virginia’s severance from Virginia and reincorporation as a new state in 1863 occurred outside the bounds of constitutional legality. West Virginia statehood resulted from a unique but sadly hypocritical series of developments by which the United States government, while pledged to prevent the secession of eleven states from the Union, nevertheless condoned, abetted, supported, and ultimately affirmed the secession of fifty [West Virginia today contains fifty-five] counties from one of those states without the permission of the original state, i.e. Virginia.

Although President Abraham Lincoln abetted the process under his war powers and the federal government acting through the United States Congress conveniently employed the necessary political fig leafs, the reality of the unprecedented and unconstitutional process by which West Virginia was created marks the only time in American history that a state was created and admitted to the Union outside the boundaries of the prescribed constitutional process.

Following implementation of the U.S. Constitution in 1789, Vermont [claimed by New York and New Hampshire], Kentucky [from Virginia], Tennessee [from North Carolina], and Maine [part of Massachusetts] became states with the consent of the states that claimed those areas. Even Lincoln’s own Attorney General, Edward Bates, declared that the process by which West Virginia was admitted was unconstitutional.

The United States government produced a façade of legality and constitutionality to create a rationale to justify secession of one part of a sovereign state to form another.

Yet secession correctly was not condoned by United States recognition of the eleven Confederate states. Nor was it permitted for states or parts of states by the U.S. Constitution. Their secession had no constitutional provision or precedent.

Lincoln and the U.S. Congress consistently denied the legality of secession of any state. Yet, in the case of West Virginia, the secession of part of the sovereign Commonwealth of Virginia was permitted to produce another state.

The United States Constitution, Article IV, Section 3, states:

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).

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

The meaning is clear and immutable. Neither President Lincoln nor Congress ever acknowledged, admitted, certified, or affirmed that any of the states that sought to secede from the Union actually or in fact had done so. Secession was impossible in an inviolable Union. Prima facie, it could not be allowed and could not happen. The legally constituted and elected jurisdictions of Virginia [its legislature, governor, and judiciary] never dissolved themselves, even though they attempted to dissolve their bonds with the federal Union.

Nor did the duly constituted authorities of the State of Virginia ever consent to the separation or severance of any part of the Commonwealth of Virginia for the purpose of forming a new state.

The only times that Virginia did consent to such a separation under the aegis of the U.S. Constitution, were its donation of land for the new Federal City in the 1790’s [a donation rescinded some years later with no opposition or resistance from the United States government] and the 1870 ex post facto and coerced recognition of the removal of two counties to a new state called West Virginia. Finally, the counties that formed West Virginia in 1863 were not federal territories. They were part of an existing [original] state. Congress had no constitutional authority to sever them or countenance their separation. In 1861-1863, Virginia granted no such allowance to the fifty counties in the west that separated from it, or to the federal government in Washington. Yet, as a result of West Virginia statehood, Virginia lost nearly thirty five percent of its land area and about twenty five percent of its population.

Through it all, according to the rules and mandates of the U.S. Constitution, the Federal Congress, and the President of the United States, Virginia had never left the Union. Lincoln and Congress always insisted on that maxim. Therefore, Virginia constitutionally could not be compelled to forfeit any of its lands without its own consent. And that consent was never granted.

The U.S. Congress and President Lincoln were creative and persistent, as well as hypocritical, by imposing a double standard on Virginia. Although according to both Lincoln and the Congress the Old Dominion never left the Union in 1861, strangely in 1863, it was no longer protected by the bonds of that Union and the Constitution.

Although Virginia never dissolved its own government and state constitution, the United States still went forward with recognition of a group of self-appointed representatives of the “Restored” or “Reorganized” State of Virginia. They then allowed dissolution of that state’s territory and territorial integrity in order to form a new state from the remnant counties in the west.

In abstract debate, either position is defensible, to a point. But in no logical interpretation could fail to detect the inconsistency, irregularity, and unconstitutionality of the process by which West Virginia entered the Union.

Additionally, Article IV, Section 4, of the U.S. Constitution states:

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).

That means that the U.S. government had no constitutional or legal right, including those implied in the war powers of the president acting as commander-in-chief, to abridge the rights of the duly elected republican government of the Commonwealth of Virginia, despite the fact that the state, as so often stated by President and the Congress, was in rebellion. Nor should federal protection of the states against “invasion” preclude internal rebellion or dissolution.

Again, the salient point is that at no time did Lincoln or Congress ever acknowledge that Virginia and the other ten states of the Southern Confederacy ever left the Union. Thus, before and after the attempt of its western counties to secede, 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 security included freedom from dissolution of the elected governments within and the territorial boundaries of those states.

Regarding the First Reconstruction Act (titled: “An Act to Provide for the More Efficient Government of the Rebel States”) enacted on March 2, 1867, there was no provision even then for severance or separation of any parts of the former Confederate states. The act stated: “Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established.”

No lands were confiscated from any of the seceded states in the post-war Reconstruction of the Union (unlike major portions of Indian lands west of the Mississippi which were confiscated by the federal government as punishment for several tribes siding with the Confederacy during the Civil War). The only exception was made for the truncation of Virginia in 1863.

Even if one accepts the reality of the absence of effective government in the defeated Southern states in the years 1865-1867 [per the Reconstruction Act of 1867], that clearly was not the case during the years 1861-1865 when Virginia’s state government was intact, functioning, and free from federal military control. Yet the period 1861-1863 was the time when West Virginia was created and admitted [1863] to the Union. Moreover, since the U.S. Constitution prohibited then and still forbids ex post facto laws, neither the Reconstruction Acts nor other legislation could justify or make constitutional after the fact the illegal separation of part of Virginia from the Commonwealth without the consent of Virginia itself.

That consent was never granted. The process that resulted in the creation of West Virginia was born of wartime expediency, not constitutional scruple.

And, that process in 1861-1863 created a “rogue state.”

2

BACKGROUND

Division and controversy had old roots in Virginia. From the formation of the earliest English colonial communities in America, sectional differences existed between western and eastern areas. That was especially true in Virginia as early as the seventeenth century. Bacon’s Rebellion of 1676 was a classic example of tidewater-frontier [east-west] friction and dispute. Those political, economic, and cultural differences became more acute after greater numbers of new settlers moved west of the Appalachians.

Physical, economic, political, and cultural differences between the two areas of the state continued to diverge throughout the eighteenth and nineteenth centuries. There were also religious differences, with many settlers west of the mountains participating in a more individual and emotional style of Christianity typical of the Second Great Awakening, and adhering to a strict Calvinist spirituality, with its strong strain of determinism. But by far, economic and political issues separated east from west in the Old Dominion.

Finally and of greatest significance, slavery was and remained deeply rooted in the eastern areas of Virginia, especially in the coastal and tidewater regions. Although the nature of Virginia’s slave economy evolved from eighteenth century tobacco plantations to nineteenth century slave breeding for export to the burgeoning cotton plantations farther south and west, the very existence and centrality of slavery to the political, economic, and social life of eastern Virginia marked the most significant difference and point of political divergence with the western region of the state. Yet it was less slavery per se than the political and economic issues resulting from it that created substantive differences between eastern and western Virginia [as well as the northern and southern portions of western Virginia].

At the same time independence was declared by the fledgling United States of America, a new Virginia state constitution was adopted in 1776. It granted voting rights only to white males who owned at least twenty five acres of improved land or a minimum of fifty acres of unimproved land. This provision reflected the interests and dominance of the eastern areas of the state, especially the coastal and Tidewater areas. Those were the areas of greatest slave prevalence.

The effect of the suffrage provision was a real and perceived political discrimination against the emerging class of small land owners in the western areas of the state. Most residents of western Virginia either did not own the land on which they lived, or they owned only small, less valuable parcels. Therefore, they did not have the right to vote. Due to climate, terrain, and their small farms, they owned very few slaves. Incrementally, between the American Revolution and the Missouri Crisis of 1819-1821, the issue of slavery and the related economic, political, and cultural issues that attended it became more important in Virginia and the nation.

Delegates from the Shenandoah Valley and other western regions of the state convened local conventions in Staunton in 1816to address east-west differences. Although these failed to produce any long-term answers to the area’s problems, they were symptomatic of long-standing differences between east and west. Following the 1816 convention, the Virginia General Assembly passed a number of acts for the benefit of western Virginia. New reapportionment of the Virginia State Senate based on white population gave western regions somewhat greater representation. Prior to that, representation had been based on the total population, including slaves [like the United States Constitution allowed for representation to the U.S. House].1

Due to the large s lave population of eastern Virginia and the general absence of slaves in western Virginia, representation in the General Assembly traditionally favored the east. Responding to western interests, complaints, and pressure, pressure, the General Assembly also created a Board of Public Works to legislate internal improvements, offered future development of more roads and canals in the west, and established the first state banks in western Virginia at Wheeling and Winchester. But despite some changes in 1816, representation, and political power remained weighted in favor of the eastern region of the state.

In response to a referendum, another convention gathered in Richmond on October 5, 1829. It was attended by such prominent Virginians as James Madison, James Monroe, John Marshall, and John Tyler. Its goal was to develop a new constitution. Eastern Virginian conservatives, advocates of the status quo,2 defeated every major reform, including all of the most significant issues-granting the vote to all white men regardless of whether they owned land, and the direct election of the governor and judges by the people.3

Statewide, the new constitution was approved by a margin of 26,055 to 15,566. However, voters in the counties of present-day West Virginia rejected it 8,365 to 1,383.4 Calls for secession of western counties from the Old Dominion began immediately, led by newspapers such as the Kanawha Republican. Over the next twenty years, the Virginia General Assembly eased some of this sectional tension by organizing nineteen new counties in the west. This resulted in greater representation in the General Assembly for the west. Also, state funded internal improvements were continued in the west to aid economic development there.

The issue of slavery came to the forefront following Nat Turner’s rebellion in 1831. The revolt resulted in the deaths of sixty-one whites in Southampton County, Virginia. Hundreds of African-Americans, including women and children, died during the revolt and the retribution that followed in its aftermath. Also in 1831, William Lloyd Garrison began publication of The Liberator.

The establishment of this paper marked the beginning of an organized national movement called abolitionism to end slavery. Most abolitionists disapproved of slavery on a moral basis. Others, however, including prominent western Virginia political leaders, supported abolition not because they sought to elevate the slaves to freedom, but rather because they felt black slaves were performing jobs white laborers should be paid to do and that slavery gave eastern slaveholders undue political power in Richmond.

The most significant outcome of the 1831 Nat Turner rebellion was the decision by the Virginia General Assembly to decline proposals for gradual abolition in the state. The issue was under discussion in 1831 when the Nat Turner revolt occurred. However, it never was raised again in the Virginia General Assembly or in any other southern state after that.

The U.S. Congress adopted extensive compromises in 1850 to ease growing tensions between North and South. Following passage of the Compromise of 1850, Virginia delegates once again met in Richmond to settle problems between eastern and western areas of the state. In the face of increased pressure from westerners, conservatives finally acquiesced on many major issues remaining from the 1829 convention. All white males over the age of twenty-one were given the right to vote regardless of whether they owned property.

The 1850-1851 state convention also approved election of the governor and judges by the people. However, although delegates agreed to a provision allowing for property to be taxed at its total value, an exception remained for slaves, who would be valued at rates well below their actual worth. That allowed many eastern Virginia slaveholders to pay less in property taxes than before, placing a greater burden on the western counties.5

At this so-called Reform Convention of 1850-1851, western interests were represented by an entirely new group of delegates who had not participated in the 1816 or 1829 conventions. New political leaders such as Joseph Johnson (the first Virginia governor from trans-Allegheny Virginia), Charles J. Faulkner, Gideon D. Camden, John Janney, John S. Carlile, Waitman T. Willey, Benjamin Smith, and George W. Summers were among the delegates to the Reform Convention. Those men later rose to political prominence in the new state of West Virginia. But despite some changes, the essential imbalance of political and economic power in the state still weighed heavily in favor of the eastern counties.6

3

DESIGNS FOR DIVISION AND DISMEMBERMENT

Serious divisions between western and eastern sections of Virginia had persisted for two centuries prior to the U.S. Civil War. Debates, discussions, publications, newspaper articles, and correspondence relevant to the 1829 Virginia Constitutional Convention and the 1831-1832 debate over the emancipation, colonization, and/or deportation of blacks both illustrated longstanding differences between eastern and western regions of the Old Dominion. Those divisions and issues remained after the 1851 revisions to the state constitution.

Few in either section were abolitionist or sympathetic to the plight, condition, or future of the enslaved. Each sought political influence, leverage, or domination of the Commonwealth for the men and interests of its own section. That salient fact was reprised in 1861-1863, with pro-Union feelings followed by anti-slavery sentiments in support, not in advance, of forces in favor of western separation from the Tidewater and Piedmont sections of the Old Dominion.

Several plans for division or dismemberment of Virginia actually appeared in the years between the 1829 convention and Virginia’s act of secession in 1861. The white population in the western counties was growing. And it grew at a faster rate in that period than it had prior to 1829. By 1850, western counties contained fifty five percent of the state’s white population but only secured about 42% of House and Senate seats in the General Assembly. That eastern disposed legislature also elected the state’s governors and judges prior to 1851. Easterners, richer and more powerful, but fewer in number than western Virginians, controlled the state, its key offices, its institutions, its policies, and its political power.7

Additionally, those western Virginians were developing economically along lines different than the plantation and slavery dominated Tidewater. And, they were becoming more politically aggressive. Typical of the ‘haves,’ eastern leaders were committed to the status quo. That included eastern preeminence in state politics, including control of the state legislature and most crucial state offices. Westerners saw the east declining economically, with the waning of plantation agriculture and transformation of slavery into an industry of human propagation producing slaves for export to the burgeoning agricultural cotton states to the southwest. But easterners had the political leverage and power, and they were unwilling to grant too many concessions to the non-slaveholding western counties of Virginia.

In 1851, the Virginia Reform Convention recognized that the white population of the western part of the state outnumbered that of the east, and it made significant changes in the state’s political calculus. Universal white suffrage was granted and the governor was elected by direct popular vote. But not everything changed. Although the lower house was apportioned strictly based on population, it still counted slaves by the old three-fifths formula. Thus, legislative representation, which determined the key axes of power in the Commonwealth, continued to use a system of apportionment that combined population and property in determining electoral districts and representation. That, despite some systemic changes, in turn sustained traditional eastern dominance.8

The changes wrought in 1851 were not sufficient to satisfy all western grievances or end eastern political dominance. After the ordinance was passed by the 1851 convention, Chester T. Hub bard wrote to Waitman Willey: “I should like to show those traitors at Richmond ... that we are not to be transformed like the cattle on the hills or the slaves on their plantations, without our knowledge or consent.”9

Most western grievances had nothing to do with anti-slavery principles or humanitarian concerns related to slavery. Their issues centered on eastern legislative representation [disproportionately based on representation formulae that included counting slaves in the population for purposes of apportionment] and the share of taxes and state revenues allocated between east and west. Thus, the issues were related to slavery, but much more in the way slavery impacted the political priorities, economies, and power structures of the state, not a concern for the slaves themselves or the institution per se.

Ironically, Virginia’s eastern leaders justified their dominance because of their dependence on slaves, “the possession of which could be guaranteed and secured only by giving to masters a voice in the government adequate to the protection of their interests…Talk about Northern oppression, talk about our rights being stolen from us by the North; it’s all stuff, and dwindles into nothing when compared, to our situation in Western Virginia. The truth is the slavery oligarchy, are impudent boastful and tyrannical. It is the nature of the institution to make men so; and tho [sic] I am far from being an abolitionist, yet if they persist, in their course, the day may come, when all Western Virginia will rise up, in her might and throw off the Shackles, which thro this very Divine institution, as they call it, has been pressing us down. 10

Fighting the slaveholding interests and their political dominance in the state was the principal issue in the western region, not emancipation or humanitarian concern. Many Western Virginians intended for the creation of a new state to free them from historic domination by the Tidewater and slave owning interests in Virginia, not to help restore the integrity of the Union following 1861, and not to emancipate slaves from their masters.

During the 1850’s, the state government in Richmond once more tried to gain support from western counties by promising or completing various internal improvements. However, progress was limited, far below western expectations. Moreover, in the western view, the projects required disproportionately high taxes on their region in deference to the political domination of the east.

The Panic of 1857 and the nationwide economic downturn and financial depression that followed ended most federal and state subsidies for internal improvements, and thus ended most projects and efforts to improve the western Virginia economy through infrastructure development. [Republicans took up the challenge of federally funded internal improvements in the 1860’s]. Reflecting problems caused by the Panic of 1857 in the North and Midwest, to which the western Virginia economy was increasingly tied [by the Ohio River, canals, and the emerging railroads], the Panic forced many businesses, banks, mills, factories, and some farms throughout the area of present-day West Virginia to close. Superficially, the new 1851 Constitution appeared to tie eastern and western Virginians closer. But essential economic, social, political, and cultural differences remained and became deeper.

4

PRECIPITATION: THE CRITICAL EVENTS OF 1859 AND 1860

By 1859 there were still strong sectional tensions at work within the state of Virginia as well as nationwide. Additionally, by that date, the western region of Virginia itself was increasingly divided between north and south portions of that region of the state on economic, social, and political issues. Some of the issues mirrored the larger national differences between North and South in the United States. Reflecting the state in general, western Virginia’s south-most citizens, less tied to the Ohio Valley and the Midwest, were generally satisfied with changes made in 1851. They were less threatened by slavery, which was more evident there than in the northwest part of the state and the Ohio Valley area. Their social and economic outlooks were more similar to those in the east.

However, citizens in the north and northwest sections of the state, around the Wheeling area, complained that they were treated as the vassals of eastern politicians. They believed their taxes were levied and increased for the benefit of easterners. Internal improvements, such as canals and railroads to connect western areas to eastern markets or as links to the Ohio Valley and Western states, were always a divisive issue and usually more important to the west. The improvements remained more planned, promised, and largely un-built than realized or actual. Moreover, property valuation for purposes of taxation remained a divisive issue. For tax purposes, slaves were usually valued around $300. But by the decade of the 1850’s, a prime field hand typically brought four to five times that amount at sale. The east continued to dominate politically.

Regarding population, by the 1850’s, despite eastern cities such as Richmond, Alexandria, and Norfolk, the western areas of Virginia had 135,000 more whites than the eastern part. Yet the east still controlled the State Senate by virtue of apportionment criteria that linked property to the allocation of State Senate seats. In the United States House of Representatives, application of the ‘three-fifths’ rule resulted in only five of Virginia’s thirteen representatives coming from western districts.

However, those areas contained more than half of Virginia’s white population. Westerners resented counting slaves in apportionment at both the state and federal level. But it had essentially nothing to do with regional anti-slavery feeling per se.

Rather, people in the western regions possessed few slaves, and had little compassion for the slaves themselves. Leaders in western Virginia typically considered slavery not as an immoral and inhuman institution, but as an obstacle to their political leverage and control of Virginia politics. However, they also saw slavery as a highly effective means of racial control, as did virtually all white Southerners, whether slaveholders or not. Thus, western Virginians simply wanted to reduce the political domination of the eastern slaveholders. They were hardly of an abolitionist persuasion.

In Virginia’s 1859 gubernatorial elections, western disenchantment with both political parties was evident in newspaper articles and public discourse. Effectively, politics in the region focused only on Democrats. Just a few voters claimed a Whig affiliation. After 1854, the new Republican Party was barely a factor in the region’s politics.11 Historically, politicians of both the Whig and Democratic parties routinely had seemed to ignore western concerns. It was a traditional response for the east and standard grievance in the west. However, in the 1850’s in Virginia, including its western areas, both the Democratic Party and the remaining southern Whigs all pressed pro-slavery arguments.

While the few antislavery Whigs in the western areas of Virginia had begun to gravitate toward the Republican Party after 1854, in the 1860 presidential election, Abraham Lincoln received just 2,000 votes from the western panhandle. Their Whig ideas were more economic, harkening back to Henry Clay’s American System. And their economy was tied to and based on the area’s commercial ties to the Ohio Valley. Western Virginians hardly appeared concerned with restricting slavery in the western territories of the U.S. as much as simply disallowing slavery as a factor in Virginia state politics.

In October, 1859, darker storm clouds appeared on the horizon. John Brown and a handful of followers attacked the United States Armory and Arsenal at Harpers Ferry, Virginia. Beginning in Virginia, Brown hoped to attract slaves to his banner, establish a colony for runaway slaves in Virginia, and use it as a base from which to march south along the crest of the Appalachian Mountains. His goals were to free and arm more slaves, overthrow state governments in the slave states, reconstruct them, and eventually impose a new Constitution on the United States. The impact of the raid was momentous.

Brown and his men succeeded in seizing the Harpers Ferry Armory. But news of the raid resulted in townspeople resisting Brown’s assault and a summons to U.S. government officials in Washington. [Brown and his men failed to cut all the telegraph lines!]. The federal government responded to the raid by sending Marines under the command of Colonel Robert E. Lee to defeat the John Brown insurrection at Harper’s Ferry. Brown and his band were forced Rogue State 15 to withdraw to an engine house at the arsenal, where surviving members were captured. They were subsequently indicted and tried at Charles Town, Virginia.

John Brown’s infamous raid brought national attention to the emotional divisions concerning slavery to a crescendo. In Virginia itself, the affair also served as a reminder of the continued east-west rift over the institution of slavery in the state, as well as the broader national issues of slavery, slavery expansion, free soil, and abolition. When John Brown was hung on December 2, 1859, he was mourned as a martyr by many in the North. Southerners, however, including most Virginians, were outraged by his actions. Nationally, John Brown’s raid brought emotions over slavery to a fever pitch. It clearly was one of the key events that led to secession in 1860-1861 and the outbreak of the U.S. Civil War in April 1861.

But between John Brown’s raid and the secession of the first seven Southern states in late 1860 and early 1861, politics also played a role in the deepening national divide over slavery. John Brown’s raid 1859 on Harpers Ferry brought the debate over slavery and its westward expansion to the forefront of the nation’s political agenda and debate as never before. The differences were palpable, and the consequences for the nation of the political decisions and actions of 1860 were crucial.

In 1860, the Republican Party, which opposed the expansion of slavery [but did not advocate abolition], nominated a moderate, Abraham Lincoln. Lincoln opposed the expansion of slavery but pledged not to interfere with the institution where it existed. To Southerners, however, Lincoln’s views were tantamount to barely disguised abolitionism. They didn’t believe him or any other Republicans.

By that time, to Southerners, free soil views were tantamount to abolitionism in the eyes of most Southerners. Southerners feared that Lincoln’s election would lead to the decline and demise of slavery and the South itself. As a result, Southern fire-eaters vowed to leave the Union if Lincoln was elected, a result that many anticipated from reading the 1856 electoral math and continuing growth of Republican Party strength in the North since then.

The Democratic Party split during its April 1860 national convention. The Southern delegation walked out in protest against the party’s failure to endorse a federal slave code for the western territories. Northern Democrats reconvened in Baltimore later that summer. They nominated another moderate, Stephen A. Douglas.

Douglas, like Lincoln, also was from Illinois. The Southern faction of the Democratic Party that had bolted the original convention refused to attend the Baltimore conclave. It held its own convention in Richmond and nominated the sitting Democratic Vice President of the U.S., John Breckinridge, for president. The Democratic split virtually guaranteed a Republican victory in the Electoral College in 1860.

A fourth party, the Constitutional Union Party, was another moderate party composed primarily of former Whigs, remnants of the American [Know-Nothing] Party, and other unattached groups. It drew its strength principally from the border states of the South. The Constitutional Union Party was organized just before the election of 1860, principally as a last ditch effort to bridge the gap between North and South.

The Constitutional Union Party had no greater purpose than continuing to paper over the widening crack in the Union caused by slavery. It had no substantive platform other than maintaining national unity through continued compromise [the time for which had definitely ceased for many in the North and especially the South]. The Constitutional Union Party nominated John Bell of Tennessee. It had little chance in the national canvas and took no effective position on slavery. Although it did fairly well in Virginia and a few other border states, it never stood a chance to capture the presidency, and nationally both pro and anti-slave advocates saw it as inconsequential. It disappeared thereafter.

Reflecting divisions in the state of Virginia over the issues of slavery and disunion, Bell carried Virginia overall [as well as the border stat es of Tennessee and Kentucky]. Representing hard core status quo, secessionist, renegade Democrats, Breckinridge ironically won most of his Virginia votes in the western areas of the Old Dominion.12 Lincoln won the national election without carrying a single Southern state. The limited support he received in Virginia came almost exclusively in the Northern Panhandle around and north of Wheeling. And it was minor.

It is difficult to understand the apparent anomaly of western Virginians favoring the most ardently pro-Southern and pro-slavery candidate of the four in 1860, or even why some western Virginians would have favored Lincoln over the Southern moderate in the race, John Bell. Be that as it may, almost immediately following Lincoln’s election, beginning with South Carolina on December 20, 1860, Southern states began the process of seceding from the Union. Those actions set the stage for civil war and eventual creation of the new state of West Virginia.

5

THE FIRST ACT OF SECESSION: VIRGINIA

Virginia seceded from the Union in May1861. That action set the stage for the eventual creation of West Virginia. The latter would not have occurred without the first action.

On November 15, 1860, Virginia Governor John Letcher called the General Assembly into an extra session scheduled to begin on January 7, 1861.However, although Abraham Lincoln had been elected, he was not yet inaugurated. And South Carolina had not yet seceded when Letcher issued the call. The Palmetto State passed its ordinance of secession on December 20, 1860.

Clearly, despite remaining officially in the Union until May 1861, there were leaders in Virginia who were moving toward secession long before it actually became reality. In response to the governor’s request, the Virginia General Assembly in January 1861 subsequently called for a state convention to determine Virginia’s course in the crisis.

One hundred fifty-two Virginia convention delegates were elected. They convened in Richmond on February 13, 1861. During the first two months of the convention, moderate sentiment prevailed and the general mood of many of the delegates appeared to be against secession. However, on April 13, 1861, Fort Sumter surrendered to Confederate forces. Within days, President Abraham Lincoln issued a call for 75,000 volunteer troops to put down the Southern rebellion. That changed everything among the populace in Virginia and much of the border South.

The events of April 1861 convinced the majority of Virginia’s convention delegates to leave the Union. Again indicative of hesitancy for some and continued advocacy of secession of others in the Commonwealth, the convention had remained in session for three months awaiting events. Since it had only one purpose, and in the process did not ever choose to affirm the state’s loyalty to the Union, it was more a matter of time before it conceded an eventual commitment to the South and to slavery.

On April 17, 1861, delegates passed an Ordinance of Secession for Virginia by a vote of 88 to 55. Twelve delegate votes either were not counted or were cast as abstaining.13Led by John Carlile, western delegates withdrew from the convention. They returned to western Virginia and began planning opposition to the ordinance and secession itself. That momentous issue was scheduled for statewide vote by the citizens of the state on May 23, 1861.

Citizens met throughout western Virginia in support of or in opposition to actions taken by their delegates at the Richmond Convention. The majority of westerners opposed the Ordinance of Secession, but that varied from county to county. In response to an unofficial call issued two days prior, on Monday, April 22, 1861, nearly twelve hundred Harrison County citizens gathered at the courthouse in Clarksburg to respond to the Ordinance of Secession. Most of those in attendance criticized actions taken by the Virginia government and convention. John Carlile submitted resolutions calling for delegates from northwestern Virginia to gather at Wheeling on May 13, 1861 for a larger convention.14

On May 13, 1861, delegates from twenty-seven western Virginia counties duly assembled at Washington Hall in Wheeling to consider responsive action in response to the Ordinance of Secession.15 William B. Zinn^16 of Preston County was appointed temporary chairman of the convention, and George Latham of Taylor County was selected as temporary secretary. Virginia’s April 1861 actions had precipitated consequential counter measures in May in the west.

Debate immediately ensued over which delegates should be allowed to participate in the proceedings. General John Jay Jackson of Wood County favored seating all attendees from the northwestern regions of Virginia. But John Carlile’s influence was apparent in most actions by the western counties in 1861. Carlile urged that the convention should be “composed only of gentlemen who come clothed with the authority conferred upon them by the people of their counties when they appointed them.” Adoption of a compromise proposal by Chester D. Hubbard of host Ohio County to create a committee on representation and permanent organization ended the debate.17

After resolving that issue, delegates focused on the proper response they should take to the Virginia secession crisis. General Jackson, Waitman Willey, and most other delegates believed that any steps taken prior to the May 23 statewide vote on the Ordinance of Secession would be premature and “altogether unwise.” Others, however, including John Carlile, sought immediate action. “Let us act,” Carlile declared. “Let us repudiate these monstrous usurpations; let us show our loyalty to Virginia and the Union; and let us maintain ourselves in the Union at every hazard. It is useless to cry peace when there is no peace; and I for one will repeat what was said by one of Virginia’s noblest sons and greatest statesmen, ‘Give me liberty or give me death!’”18

Carlile resolved not to await the May 23, 1861 statewide canvass on Virginia’s proposed secession. On May 14, Carlile proposed a resolution for creation of a new state. Proposed names for the new state included New Virginia, Kanawa or Kanawah or Kanawha, and West Virginia, among others.19 Opponents of such a move deemed the separate statehood proposal premature and even revolutionary. A majority of delegates supported resolutions offered by the Committee on State and Federal Resolutions. Those resolutions recommended that if the people of Virginia approved the Ordinance of Secession on May 23, 1861, western Virginians then would elect delegates to a Second Wheeling Convention to begin on June 11, 1861.20

The voters of the Commonwealth approved Virginia’s Ordinance of Secession on May 23, 1861. In substance, approval by that date was merely a technicality. The state government of Virginia already had passed an ordinance of secession, proceeded to align itself with the Confederate States of America [still then headquartered in Montgomery, Alabama], and already was preparing for war even prior to the May 23 vote. During the month following passage of the secession ordinance in April by delegates at the Richmond Convention, citizens of western Virginia gathered in their communities to discuss the issue. Some voiced opposition to secession, while others supported Virginia’s decision to leave the Union. The May 23, 1861 vote confirmed things and made Virginia’s course of action final.

When Virginia’s Governor John Letcher announced that the ordinance had been ratified by Virginia’s citizens by a vote of 125,950 to 20,373, many western Virginians were outraged by news that most of the votes from western Virginia apparently had not been delivered to Richmond for tabulation. Due to the fact that many vote totals were lost, it is unclear how western Virginians voted. Some historians believed that the overwhelming majority in the west voted against secession.21

But regardless, just as Virginia prepared to separate from the Union, there also was already initiative and momentum pointed in the direction of efforts to separate many western counties of Virginia from the rest of the state. Virginia’s secession from the Union had provided a pretext. However, the rationale had been building for decades, even centuries. The May 23, 1861 vote for Virginia’s secession from the Union only served to solidify the preference for separation among citizens of the western counties. And, it led to the next phase.

6

CONSTITUTIONAL LEGERDEMAIN:

SECEDING FROM A SECEDED STATE

President Abraham Lincoln was inaugurated on March 4, 1861. Despite his oft-repeated pledge, reiterated eloquently in his first Inaugural Address, not to interfere with slavery where it already existed, seven states remained, in their view, not Lincoln’s, outside the Union, with more to follow.

Following creation of the Confederate States of America in February 1861 and a subsequent Southern assault on Fort Sumter in April 1861, a convention of Virginians on April 17, 1861 approved secession and voted to submit a secession bill to the people. Led by Clarksburg’s John S. Carlile, western delegates marched out of the Secession Convention, and vowed to form a separate state government loyal to the Union. This was the eventual pretext and seed for creation of the state of West Virginia.

Many delegates who abandoned Virginia’s secessionist convention gathered in Clarksburg on April 22. Like Carlile, they called for a pro-Union convention, which met subsequently in Wheeling from May 13-15, 1861. That conclave occurred even before the official vote for secession throughout the Old Dominion.

Just as Virginia essentially had decided to desert the Union well in advance of the statewide vote on secession, western dissidents already had determined to fulfill their desire to separate from the Old Dominion. However, and contrary to West Virginia mythology, the principal forces at work to lead the separation of western counties from the rest of Virginia were more anti-Tidewater than pro-Union, just as they were more anti-black than emancipationist.

On May 23, a majority of Virginia voters approved the Commonwealth’s Ordinance of Secession. It was not possible to determine accurately the vote total from present-day West Virginia. Vote tampering and destruction of records in western counties precluded an accurate tally of the vote for or against secession in western Virginia, although historians presume it was against. But by how much remains unknown.22

In other words, there is no way to tell from that May 1861 vote how deeply the anti-secession [from the U.S.] feelings of the region ran, or how strongly at that moment the pro-secessionist counties were considering the possibility of subsequently leaving the state of Virginia. Specifically, one of the points at issue was whether the strength of the forces advocating separation from Virginia was ebbing or running stronger at that point.

Twenty counties within present West Virginia supported the Confederacy and opposed separation from the Old Dominion. Thirty western counties apparently were opposed to national disunion an d Virginia’s act of secession. The pro-Confederate minority ran as high as forty per cent in a few pro-Union counties, but in some the reverse also was true.23

Because the northwestern Union counties contained about sixty percent of the total population of those western counties and the Confederate-leaning counties only about forty per cent, a 60-40% ratio existed overall, with a majority of apparent Unionists within the future state of West Virginia. Nevertheless, the May 23, 1861 vote in the constitutionally re cognized Commonwealth of Virginia clearly was for secession.24 Meanwhile, the western counties remained divided on both Virginia’s secession from the Union on the one hand and the proposed separation of the west from the rest of Virginia on the other.

Some analysts argue that anti-Union, pro-Confederate secessionists were in the majority in western Virginia. Others feel the Unionists had greater support. That is a separate issue from the later plan for western Virginia to secede from the state of Virginia. But it is relevant to the strength of support for western Virginia’s secession from the rest of the state.

Was that state-splitting constituency a small, vocal, influential, and ultimately decisive minority, as opposed to a majority? Which western counties should be considered: the pro-separation northwestern ones, the counties less inclined to separation and more closely tied to the eastern region, or all the fifty or so counties west of the Blue Ridge? Finally, at what time, if ever, were the numbers of western separatists either more or less than half of the total population of the western counties? Secession had proponents and opposition throughout the South. The same was true both for the state of Virginia as a whole and also within its western counties.

Through all these deliberations and processes of 1862-1863, while all of the officials and delegates considering separation from the rest of Virginia were from the western counties in question [although not the other areas of Virginia] the majority, including those with the most significant roles and influence, were from the northern panhandle region.

Following and precipitated by ratification of Virginia’s Ordinance of Secession, delegates from western counties gathered at Washington Hall [now called Independence Hall] in Wheeling on June 11, 1861, to determine a course of action for northwestern Virginia.25 It was about as far from Richmond and the Tidewater area as one could get within the boundaries of the Old Dominion.

Committees on Organization, Rules, and Credentials were immediately established. The Committee on Credentials ruled that eighty eight delegates, representing thirty two counties [not fifty!], were entitled to seats in the convention. Other delegates were later admitted as members during the course of the Wheeling convention.26 The Committee on Permanent Organization selected Arthur I. Boreman to serve as president of the convention.27

Boreman acknowledged that “in this Convention we have no ordinary political gathering. We have no ordinary task before us. We come here to carry out and execute, and it may be, to institute a government for ourselves. We are determined to live under a State Government in the United States of America and under the Constitution of the United States. It requires stout hearts to execute this purpose; it requires men of courage, of unfaltering determination; and I believe, in the gentlemen who compose this Convention, we have the stout hearts and the men who are determined in this purpose.”28 The fact that Virginia was still and always remained a state and a part of the federal Union in the eyes of the government of the United States despite passage of an ordinance of secession by a portion of Virginia’s population mattered naught.

On June 13, John Carlile, representing the Committee on Business, presented “A Declaration of the People of Virginia.” The document called for reorganization of the government of Virginia on the grounds that, due to Virginia’s decision to secede from the United States, all state government offices had been vacated. On the following day, Carlile’s committee reported a draft ordinance for this purpose, and the debate began. This was the seed from which the eventual “Reconstituted Government of Virginia” grew.29

Several members of the convention, including Dennis Dorsey of Monongalia County, initially opposed the reorganization plan. Opponents of “Reorganization” called instead for immediate and permanent separation from eastern Virginia. Carlile, who had advocated the same approach in the First Wheeling Convention, now persuaded delegates that constitutional restrictions made it first necessary to form a loyal government of Virginia in lieu of the Richmond government. He proposed that new state legislature could then give permission for creation of a new state from the territory of the Commonwealth of Virginia, in other words, from itself.30

Carlile stated: “I find that even I, who first started the little stone down the mountain, have now to apply the rubbers to other gentlemen who have outrun me in the race, to check their impetuosity.”31 In reality, the separatists were creating a fiction from the start in order to secure their goals. And, in truth, both groups [reorganizers and immediate separatists] wanted a new, separate state for the west. The differences were procedural, not substantive.

Despite disagreement regarding how actually to create a legal and permanent division of the state [they failed in the first and realized the second], nearly all the delegates noted that differences between Virginia’s eastern and western counties were irreconcilable and argued for that separation. This notion of “irreconcilable” differences with the east fit well with the other extreme words, ideas, and actions of the separatists. In addition to “irreconcilable,” the vocabulary included: “nullification,” “separation,” “secession” [from a state, but not from the Union!], “revolution,” and “reconstitution” [i.e., replacement] of the legally elected and functioning government in Richmond.

On June 19, 1861, members of the convention voted unanimously in favor of the proposed ordinance for reorganizing the government of Virginia. This took place despite the fact that the duly constituted government of Virginia remained in office, in control of the apparatus of the state, physically unhampered, and legally uncontested in Richmond.32

On June 20, maintaining the fiction that the real government of the Commonwealth of Virginia had simply ceased to exist, when in reality everyone knew that it was alive and well in Richmond, delegates selected officials to fill the offices of the “Restored” Government of Virginia. Francis Pierpont of Marion County was elected governor. Daniel Polsley became lieutenant governor. James Wheat of Wheeling was elected Attorney General.33

In a speech to the delegates, Governor Pierpont defended the actions of the Convention. He argued that “we are but recurring to the great fundamental principle of our fathers, that to the loyal people of a State belongs the law-making power of that State.”34 He said nothing about the other people of that state, those outside the western counties, or the elected officials and government still sitting in Richmond. On June 25, 1861, the convention adjourned until August 6 of that year.35

During that period in which the Second Wheeling Convention was out of session, Governor Pierpont called the legislature of the ‘Restored’ [Reorganized] Government of Virginia into an extra session. Actually, it was its first. The meeting was scheduled to convene in Wheeling on July 1, 1861.36

The two legislative bodies [Senate and General Assembly] elected to office on May 23 consisted of persons who remained loyal to the Union. Approximately eight senators and thirty-two delegates participated in the proceedings. The House of Delegates met in the federal courtroom in the Wheeling Custom House; the Senate gathered at a nearby school, The Linsly Institute. Attendance was so sparse on the first day that proceedings were adjourned for lack of a quorum 37

On the following day, July 2, Daniel Frost of Jackson County was elected Speaker of the House. The newly elected Lieutenant Governor, Daniel Polsley, presided over the Senate. In an address read to legislators, Governor Pierpont revealed that President Lincoln had pledged “full protection” to the people of western Virginia.38

The governor called on the “Restored” legislature to establish “an efficient system to protect the loyal people of the Commonwealth against the intrigues, conspiracies and hostile acts of those who adhere to our enemies.” He also declared opposition to any tax increases and requested that the Board of Public Works be abolished, with its powers to be conferred on the governor.39

Moving forward, on July 9, legislators elected a number of state officials, including Lucian Hagans as Secretary of the Commonwealth, Samuel Crane as Auditor of Public Accounts, and Campbell Tarr as State Treasurer. The legislature then proceeded to select two United States Senators. John Carlile was unanimously elected to fill the slot of R. M. T. Hunter, who, like his other Confederate counterparts in the U.S. Congress, was deposed for leaving his seat. Three candidates were nominated to replace the deposed James M. Mason. They were Waitman T. Willey, Peter Van Winkle, and Daniel Lamb.40 The Wheeling Intelligencer newspaper voiced editorial opposition to the selection of Willey, presumably reflecting some pool of opinion in that regard. But despite opposition to Willey due to his perceived conservatism, he was elected to fill the other U.S. Senate seat for Virginia.

On July 13, there was a bitter debate in the U.S. Senate over this issue, since new Senators were not seated to represent other seceded states. Some presecession Senators had stayed in their seats, most notably Andrew Johnson of Tennessee, and thus did not forfeit those seats. But those who left following secession were not replaced, except for the two new men from “Virginia.” That was a major advantage to the Republicans, who overwhelmingly dominate d Congress throughout the war. Finally, Carlile and Willey were formally recognized and seated by the U.S. Senate. They were seated as United States Senators from Virginia!41

Most actions taken by the new “Restored” legislature of “Virginia” related to financial and military affairs for this “Reorganized Government of Virginia.” Late in the session, House Bill No. 21, giving legislative approval for creation of a separate new state under certain specific terms and conditions, was introduced and debated. The Reconstituted House eventually voted against the bill, while the Restored Senate chose to table the proposed legislation.42

It was hardly an overwhelming show of support for the idea of allowing a permanent separation by a portion of Virginia from the rest of the Old Dominion. The extra session at Wheeling concluded on July 26, 1861. However, all of the legislators except one [George Arnold of Lewis County] returned on August 6, 1861 as delegates to the Second Session of the Second Wheeling Convention.43

Delegates of the Second Wheeling Convention reassembled on August 6, 1861. They passed a number of resolutions, including an ordinance to nullify proceedings of the Richmond Convention in April 1861 that had produced Virginia’s Ordinance of Secession. The Convention also assumed that resolution and all other actions of the Richmond Convention were “illegal, inoperative, null, void, and without force or effect.”44

This was a clear effort at nullification, albeit on the state level, a doctrine whose validity was denied by President Lincoln himself, as well as such predecessors as Andrew Jackson in 1832. It was indicative of the expediencies and double standards at work. Nullification and secession were rightfully inappropriate for a state vis a vis the United States of America, but allowable as expedient for a segment of a state in “war time.” Yet Lincoln and Congress always insisted the Civil War was a rebellion and not legally a war. So went the reasoning in Washington.

The Wheeling Convention formed a Committee on a Division of the State. That occurred despite earlier votes in the newly constituted ‘Restored’ legislature tabling or opposing a separation from Virginia.45 The convention appeared to be circumventing or usurping the powers of the “Restored” Legislature and Government of “Virginia.”

On August 13, after a week of deliberations, the Committee on a Division of the State formulated and presented to the convention a dismemberment ordinance. Delegates debated boundaries of the proposed state for five days, without input from the regular Virginia state government in Richmond or the counties in question. They then referred the question to another committee.46

On August 20, this committee proposed that the new state, which no w was slated to be named Kanawha, would consist of thirty-nine counties. Seven other counties (Berkeley, Greenbrier, Hampshire, Hardy, Jefferson, Morgan and Pocahontas) were to be added, making it forty-six counties, if the majority of voters in those counties approved. The convention offered no provision for a preliminary plebiscite to affirm the decision in the first thirty-nine counties. Their consent to inclusion in the proposed new state was presumed by virtue of those counties being represented in Wheeling.47

The Wheeling Convention adopted the committee’s recommendations by a vote of fifty to twenty-eight, about two to one, but far from unanimous. Affirmation by voters in all counties of the proposed state in regard to the broader issues of separation from the rest of Virginia and separate statehood was scheduled for October 24, 1861.48

“You have taken the initiative in the creation of a new State,” convention president Arthur Boreman remarked in adjourning the convention. “This is a step of vital importance.” He continued: “I hope, and I pray God it may be successful; that it may not engender strife in our midst, nor bring upon us difficulties from abroad, but that its most ardent advocates may realize their fondest hopes of its complete success.” From there, it went to the people. However, it did not go to all the people of the State of Virginia. Rather, it was submitted only to the people of the western counties.49

On October 24, 1861, voters from the thirty-nine counties of the proposed new state of Kanawha (plus voters in Hampshire and Hardy counties, but not the other five under consideration) went to the polls to determine the fate of the proposal for a new state. Considering the importance of the vote, turnout was surprisingly low. Moreover, the vote occurred in only forty one, not forty six, counties. Only about thirty-seven percent of eligible voters chose to cast ballots.50 Perhaps they recognized a fait accompli; perhaps they were ambivalent; perhaps they opposed separation from Virginia but were intimidated when it came to standing publicly against the proposal. Still, given its import, participation was low.

When the ballots were counted, 18,408 votes were cast in favor of the new state, while only 781 were opposed. At this election, voters also elected delegates to represent them in a new constitutional convention to design the framework of government for the new state of, as it was still then proposed to be named, Kanawha.51

On November 26, 1861, delegates met in Wheeling to create a Constitution for the new state. This was the [West Virginia] Constitutional Convention. Issues included the name of the new state, setting its boundaries, and the issue of slavery.52

Although voters had approved creation of the new state of “Kanawha,” many delegates were opposed to the name. Opposition was based on the existence of a county and river already named Kanawha or Kanawa. Newly minted U.S. Senator Waitman T. Willey, who was in attendance, provoked laughter when he observed that some of his constituents might find ‘Kanawah’ [or any of its variations] difficult to spell. Willey then added, “I have no objection to any name that is convenient, though I will say that in this case I think the rose would smell sweeter by some other name.”53

The comments and issue hardly merited such levity, however. The country was engaged in a bloody civil war. Nevertheless, there was a lengthy debate regarding the best name for the new state. A number of delegates spoke strongly either in favor of or against inclusion of the word “Virginia” in the new state name, but “West Virginia” eventually was selected.

Of much greater import, the issue of slavery constantly hung over the convention. On November 30, 1861, Robert Hagar of Boone County called for creation of a “free” state and proposed gradual emancipation within its boundaries. Gordon Battelle of Ohio County, a Methodist minister, proposed forbidding additional slaves from entering the state as well as gradual emancipation for slaves currently located in the new state. But while Battelle and a few others pressed for gradual emancipation, they were unable to convince a majority of delegates to support inclusion of that option in the new state constitution. The final document simply stated, “No slave shall be brought, or free person of color be permitted to come, into this State for permanent residence.” Yes; no slaves or free blacks were to be allowed.54

That was hardly a ringing endorsement for the principles of emancipation or racial equality, in contrast to growing sentiment among the dominant so-called ‘radical’ Republicans^55 who controlled the United States Congress, or the opinion of President Lincoln who was moving in favor of steps to emancipate the slaves. Again, neither slaves nor free blacks would be allowed.

Yet the rhetoric as well as subsequent mythology underlying the case for West Virginia’s separation from its parent Commonwealth included reference to the region’s opposition to slavery, an institution so prevalent in the eastern areas of the state, and, more importantly, the Tidewater politicians who so strongly upheld the “peculiar institution” in the Old Dominion. Ambivalence or opposition to emancipation or racial equality did not prove to be permanent obstacles to eventual admission of West Virginia to the Union.

Determining boundaries of the new state was an equally difficult issue. The Committee on Boundary proposed that an additional thirty-two counties be added to the thirty-nine already included [or, alternatively, forty one, per the referendum; the numbers of proposed counties for the new state fluctuated continuously]. It was politically aggressive and highly unrealistic from both a political and military perspective. Debate ensued nonetheless. Some proposed counties were rejected. Reasons for rejection included those counties having large numbers of slaves, harboring secession sentiment, or carrying excessive financial debt.56

On December 13, 1861, the convention determined that West Virginia would include the thirty-nine original counties and five additional, making forty-four, with seven more counties potentially to be added if their voters approved. The final tally in the 1860’s was fifty, not fifty one, with five additional counties later added or created from existing ones subsequent to West Virginia statehood, making the present total of fifty-five counties in the Mountain State.57 Nevertheless, the separatists from western counties of the Commonwealth of Virginia had taken several critical steps toward the creation of their rogue state.

7

ON THE BATTLEFIELD

Military events during the American Civil War had an important effect and parallel influence on politics in the emerging anti-Virginia secessionist movement in the western counties of the Old Dominion. Following a Union victory led by young General George McClellan over a small Confederate force at the Battle of Philippi on June 3, 1861 and McClellan’s subsequent occupation of northwestern Virginia, the second convention to consider separation met in Wheeling between June 11 and June 25, 1861. From that point forward, there was no Confederate military force or compulsion to prevent western Virginia’s separatist leaders from proceeding with their aspirations for their removal from Virginia.

Union military occupation of much of western Virginia was thus a critical factor in subsequent political developments and the eventually successful moves to separate many counties in the western region of Virginia and form a separate state. On October 24, 1861, residents of thirty-nine counties in western Virginia approved the formation of a new Unionist state. The accuracy and legitimacy of those election results were questionable. Union troops were stationed at many of polls to prevent Confederate sympathizers from voting. It was hardly a free, open, democratic process. But it formed the basis for what followed.

At the Constitutional Convention in Wheeling from November 1861 to February 1862, delegates selected counties for inclusion in the new state of West Virginia. Ambitious politicians ran the proceedings and sought to consolidate as much territory as possible within the new state. Many counties were included, but the majority of them were not consulted in this matter. They were, however, under Union military control or devoid of any significant C.S.A. military presence or pressure. From the initial list, most counties in the Shenandoah Valley were excluded due to their control by Confederate troops and those areas having a large number of local Confederate sympathizers.

Again, military circumstances helped dictate political actions. In the end, fifty counties were selected. All of present-day West Virginia’s counties except Mineral, Grant, Lincoln, Summers, and Mingo, which were formed after statehood, became part of the new Union’s new rogue state.

Most of the eastern and southern counties west of the Blue Ridge that were included in the new state of West Virginia did not support separate statehood. They were included by the Wheeling delegates for political, economic, and military purposes. The wishes of the citizens of those counties were largely disregarded. But the areas were under federal military influence or lacked C.S.A. military pressure.

The Blue Ridge mountain range became a geographically and historically logical eastern border for West Virginia. Counties west of that line [ironically almost identical to the 1763 Proclamation Line] were conveniently included. In addition to an historical and symbolic division between eastern and western Virginia, the line of the Blue Ridge also provided a defense against potential [albeit unlikely] Confederate invasion. That line also corresponded to the line of United States military influence and control, or the lack of Confederate military influence or interest.

One of the most controversial decisions in creating West Virginia as a separate state involved the Eastern Panhandle counties. Those were the counties located along the Virginia-Maryland border and the Potomac River. They centered on the cities of Martinsburg, Charles Town, and Harper’s Ferry. They were largely east of the Blue Ridge, more appropriately part of the Shenandoah Valley region then “western” Virginia.58

Those areas, like the rest of the lower [northern] Shenandoah Valley, supported the Confederacy [although there was a fair amount of Union support in the area around Winchester and Frederick County early in the war, in contrast to the lower, or southern, Shenandoah Valley]. But those eastern counties were strategically located and economically important. The Baltimore and Ohio Railroad, running through the Eastern Panhandle, was vital for the region’s economy, Union communications with the Midwest, federal troop movement, and the future of a s eparate state of West Virginia. Inclusion of those three eastern counties in the new state of West Virginia nominally removed the railroad and those counties from Virginia’s jurisdiction and Confederate control. It also enhanced West Virginia’s economic future.

Subsequent to withdrawal of Virginia’s military forces from the western regions after the Battle of Philippi and later decisions not to contest an area of questionable military value to the Confederacy, formal military hostilities in the western counties of Virginia were minimal for the rest of the Civil W ar. However, there were brutal guerilla activities. Much of those focused on local issues and old regional and clan hostilities rather than the larger military issues of the Civil War. Again, there were far fewer pro-Union or emancipationist interests in those areas than local, economic, traditional, and clan issues at stake in the western counties in the 1860’s.

After 1861, federal troops were stationed in critical areas throughout West Virginia, a.k.a. the areas of Virginia west of the Blue Ridge, largely to secure rail lines and other important features. They also provided a semblance of [not complete] military stability for the separatist movement based in Wheeling. During the Civil War, however, the “Reorganized Government of Virginia” never effectively controlled more than twenty or twenty-five counties in the region that became West Virginia.

Even where Union troops were present, maintaining law and order was inconsistent and precarious. Guerilla warfare was commonplace and violent. But there was no more major fighting between Union and Confederate regular forces. That state of affairs allowed political events leading to West Virginia statehood to proceed unimpeded by Virginian or Confederate military forces. That situation was aided by a federal troop presence that had visible effect on elections and the direction in which political events evolved in West Virginia in 1862 and 1863.

Against that military backdrop, with Confederate forces driven from the state, convention delegates in Wheeling formed the Restored, or Re organized, Government of Virginia in 1861. In a strictly political move rationalized under his war powers as commander in chief, President Lincoln immediately recognized the Restored Government as the legitimate government of Virginia. It was a crucial decision. John Carlile and Waitman T. Willey became U.S. Senators. Jacob Blair, William Brown, and Kellan Whaley became Congressmen representing pro-Union Virginia, a.k.a. the “Restored” Government of Virginia or West Virginia, in lieu of the disenfranchised senators and representatives of the original and seceded state of Virginia. Military decisions and circumstances affirmed all those political actions.

Without question, the Wheeling convention and subsequent “Restored” Government of Virginia represented and contained only several dozen western counties. As discussed previously, it was not necessarily representative of a significant majority of the people of those counties, let alone the entirety of Virginia.

That point was addressed in Salmon Chase’s December 29, 1862 letter to President Lincoln on the topic of the constitutionality of admitting West Virginia to the Union (See Appendix B). The number of counties included in the separatist movement was itself subject to change. About thirty counties in the west had opposed secession. Thirty-nine counties voted to approve a new state. Composition of the new state fluctuated, ultimately comprising fifty counties of the Commonwealth of Virginia. [The present tally of fifty-five counties resulted from post-statehood county realignments].

All this occurred with Union forces in control of, or Confederate forces absent from, the areas in question. It also occurred without sanction, approval, or recognition from the constitutionally recognized government of Virginia, which, according to President Lincoln and the U.S. Congress throughout the Civil War, never left the Union in the first place. Nor were the citizens of Virginia ever asked directly through election or plebiscite to determine this crucial issue of severing a portion of their state and agreeing to its separate statehood.

Precedents for creating new states from existing ones already existed under the Constitution of 1787. New York and New Hampshire resolved a territorial dispute by acceding to the formation of Vermont. The people of Maine were allowed by Massachusetts to form a separate state. The people of those existing states determined and resolved those issues. Not so for Virginia.

The basic questions remained. Did Virginia consent to the creation of West Virginia? Did the “Restored” Government of Virginia (West Virginia) represent Virginia and its citizens? All of Virginia, all of its citizens? Regarding the issue of presidential and Congressional consent to severance of the western counties, the apparent answer was yes.

But was it? Why were Congressional seats for a “restored” Virginia [a.k.a West Virginia] not more numerous and representative of Virginia’s entire population which the “Restored Government” purported to represent? Why were there were only three new members in the House of Representatives rather than the much larger delegation that the larger population of Virginia warranted, if the “Restored Government” really represented “all” of Virginia?

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 outcome 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.

________________________________________

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 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.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.

________________________________________

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.77

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.78 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.79 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.80

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.81

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.82 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.

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.

11

EPILOGUE

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.

APPENDIX

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.

That was and is the plain constitutional duty of this government; and all that this government has yet done, by legislation, by executive action, or by actual war, has been done with that avowed and only object. When all the governmental officers of the state of Virginia acting in organic form, had renounced their allegiance to the Constitution, and had risen, in armed revolt against the nation, carrying along with them, into flagrant war, a great majority of the people of the State, this government found itself in a strange and anomalous condition. It was charged with duties which could be neither denied nor evaded; and constrained to the use of powers, which undoubtedly exist in contemplation of law, and yet the modes of their action had not been prescribed, only because the necessity to put those powers into practical exercise had not been foreseen.

In this state of things, we took the only course which lay open before us - a course of prudence, of moderation, and of conformity to the principles and objects of the Constitution. It was our sacred duty to suppress the insurrection, to repel the invasion, to put down the official treason in Virginia, which had perverted all the organic powers of the state, into active hostility against the nation. And in performing this duty, we could do no less than recognize all of Virginia which remained faithful to the Constitution, and which demanded the protection and support of the national government.

In this view, and only in this, we advised and consented to the organization of a new government for Virginia, seated, for the present, in the northwest, where alone it could act in safety. Those who organized that government were a small minority, but they were all that remained to us and to the Constitution. And we all know (certainly I did) that such a government could not be organized by such a people, at such a time, and under such circumstances, in exact conformity to all the minute requirements and particulars of the Virginia Constitution. But, for that reason-for the crimes of a comparatively few individuals which render an exact compliance with forms impossible, shall a nation be allowed to perish, a State be blotted from the map of the world? No, God forbid. The substance must not be sacrificed to the forms. (Author’s italics).

Our first great Constitutional duty is to save the nation, and the States: and, if possible, we must save them according to law. But if the two duties conflict, still the greater must be performed, and the lesser must yield, even as a conflicting act of Congress must yield to the Constitution. We all know - everybody knows - that the government of Virginia recognized by Congress and the President, is a government of necessity, formed by that power which lies dormant in every person, which though known and recognized, is never regulated by law, because its exact uses and the occasions for its use, cannot be foreknown, and it is called into exercise by the great emergency which, overturning the regular government, necessitates its action, without waiting for the details and forms which all regular governments have. It is intended only to counteract the treacherous perversion of the ordained powers of the State, and stands only as a political nucleus around which the shattered elements of the old commonwealth may meet and combine, in all its original proportions, and be restored to its legitimate place in the Union. (Author’s italics).

It is a provisional government, proper and necessary for the legitimate object for which it was made and recognized. That object was not to divide and destroy the State, but to rehabilitate and restore it. That government of Virginia, so formed and so recognized, does not and never did, in fact, represent and govern, more than a small fraction of the State - perhaps a fourth part. And the legislature which pretends to give consent of Virginia to her own dismemberment, is, (as I am credibly informed) composed chiefly if not entirely of men who represent those forty-eight [sic] counties which constitute the new State of West Virginia. (Author’s italics).

The act of consent is less in the nature of a law than of a contract. It is a grant of power, an agreement to be divided. And who made the agreement, and with whom? The representatives of the forty-eight [sic] counties, with themselves! Is that fair dealing? Is that honest legislation? Is that a legitimate exercise of a constitutional power, by the legislature of Virginia?

It seems to me that it is mere abuse, nothing less than attempted secession, hardly veiled under the flimsy forms of law. Fortunately, however, even that flimsy veil foes not cover the substantial wrong. I think I have already shown that under either construction of the clause of the Constitution above cited, the forms of the Constitution have not been fulfilled. The bill was introduced and has been thus far pushed forward towards its completion, under the erroneous idea that it was in verbal and technical conformity to the Constitution, and therefore, and only therefore, that it could ever ripen into a binding law. (Author’s italics).

That was its only foundation; for I think that no reflecting man will seriously affirm that the legislature of Virginia, which, at Wheeling, on the 13th of May, 1862, gave its consent (not the consent of Virginia) to the dismemberment of the Old Commonwealth, was in truth and honesty, such legislature of Virginia as the Constitution speaks of - a legislature representing and governing the whole, and therefore honestly and lawfully speaking for the whole, in a matter which concerns the fundamental conditions of the State, and its organic law. (Author’s italics).

In proceeding to answer the second question - “Is the said act expedient?” - it becomes necessary to look into the bill itself. It is a strange composition, bearing upon its face, unmistakable marks of haste and in consideration. The preamble, after various recitals, gives the consent of Congress, “that the forty-eight [sic] counties (which may be formed into a separate and independent state).”

The first section declares “that the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States, in all respects whatever,” and allows three representatives, until the next general census. But this [is] immediately followed by a provision, “That this act shall not take effect until after the proclamation of the President of the United States hereinafter provided for.” Which proclamation, very possibly, may never happen, for there is no after-provision in the bill, making it the duty of the President to issue it.

Then follows a paragraph (which seems to be only a preamble to § 2) to the effect that “it being represented to Congress that, since the convention of the 26th of November, 1861, which framed the proposed Constitution for the said State of West Virginia, the people thereof have expressed a wish to change the seventh section of the eleventh article of said Constitution by striking out the same and inserting the following” - giving the exact form of what Congress chooses to have inserted in the State Constitution!

The bill does not inform us when, how, or by whom it was “represented to Congress,” that the People wished to change their Constitution so recently made by their convention, and ratified by their own votes, as stated with exact particularity in the preamble.

If the people of West Virginia had a right to call a convention and make a Constitution for themselves, what is to hinder them from amending the one or making another by the same means and without waiting for Congress to instruct them what to do and how to do it? It looks hardly. However pure the motive, it lays Congress open to the suspicion of assuming unconstitutional powers, by dictating to a State, in a matter so important and so enduring as its Constitution.

And the second section brings no relief, but strengthens the suspicion and magnifies the evil. “Therefore, Sec. 2. Be it further enacted, That whenever the people of West Virginia shall, through their said convention, and by a vote,” etc. “make and ratify the change aforesaid, and properly certify” etc. “it shall be lawful for the President of the United States to issue his proclamation stating the fact, and thereupon this act shall take effect and be in . . . force from and after sixty days from the date of said proclamation.”

In view of this section, it is manifest that the very existence of the Act, even after you have signed it, is made to depend upon the implicit obedience of the people of West Virginia. They must “make and ratify the change aforesaid,” and in the precise manner prescribed. They cannot choose new agents to amend their own constitution. They must do it “through their said convention”- the same which sat at Wheeling on the 26th of November 1861.

None other can be trusted! Perhaps that convention is no longer in existence. It was called for a particular purpose, and having done its work, and the people having ratified it-perhaps the convention is functus officio, dead and gone. Surely, it was not intended as a permanent institution, to last through all times. Yet that seems to be the idea of the bill, for it fixes no limit of time-whenever the people shall do it, through their said convention. Again, when all this is done, as ordered, still, the Act may fail and the new State perish in the birth, for want of a proclamation. The bill declares that “it shall be lawful for the President to issue his proclamation;” but it is not his duty to do whatever may be lawfully done. By Act of Congress it is lawful for the President, by proclamation, to close all the Southern ports, but he has not found it expedient to exercise the power.

I need not trouble you with many remarks upon the very awkward shape and inconvenient geographical relations of the new State, and the still greater awkwardness and inconvenience in which the old state would be left, by the proposed division. Such a division, if now made by force of untoward circumstances, could not long stand. Its evils would not be long endured. I consider this proceeding revolutionary, all the more wrong, because it is needlessly begun at a moment when we are strained to the uttermost, in efforts to prevent a far greater revolution. If successful, it will be at once an example and fit instrument for tearing into pieces the regions further south, and making out of the fragments, a multitude of feeble communities. And, for what good end? We may thereby stimulate the transient passions and prejudices of men in particular localities, and gratify the personal ambition and interest of a few leaders in those sections. We may disjoint the fabric of our national government, and destroy the balance of power in Congress, by a flood of senators representing a new brood of fragmentary States. (Author’s italics).

And now, Sir, I give it as my opinion that the bill in question is unconstitutional; and also, by its own intrinsic demerits, highly inexpedient. And I persuade myself that Congress, upon maturer [sic] thought, will be glad to be relieved by a veto, from the evil consequences of such improvident legislation. (Author’s italics).

All which is, most respectfully submitted, by your obedient servant,

Edward W. Bates

Attorney General.

3. Letter from Salmon P. Chase to President Abraham Lincoln, Washington, D.C., December 29, 1862.

Treasury Department

December 29, 1862

Sir,

My most thoughtful attention has been given to the questions which you have proposed to me as the Head of one of the Departments, touching the Act of Congress admitting the State of West Virginia into the Union.

The questions proposed are two:

1. Is the Act constitutional? 2. Is the Act expedient?

In my judgement [sic] the Act is constitutional. In the Convention which Framed the Constitution, the formation of new States was much considered. Some of the ablest men in the Convention, including all or nearly all the delegates from Maryland, Delaware and New Jersey, insisted that Congress should have power to form new States, within the limits of existing States, without the consent of the latter. All agreed that Congress should have the power, with that consent. The result of deliberation was the grant to Congress of a general power to admit new States; with a limit on its exercise in respect to States formed within the jurisdiction of old States or parts of such, to cases of consent by the legislatures of the States concerned.

The power of Congress to admit the State of West Virginia, formed within the existing State of Virginia, is clear, if the consent of the legislature of the State of Virginia has been given. That this consent has been given cannot be denied, unless the whole action of the Executive and Legislative branches of the Federal Government for the last eighteen months has been mistaken, and is now reversed. (Author’s italics).

In April, 1861, a Convention of citizens of Virginia assumed to pass an Ordinance of Secession; called in rebel troops; and made common cause with the insurrection which had broken out against the Government of the United States. Most of the persons exercising the functions of State government in Virginia joined the rebels, and refused to perform their duties to the Union they had sworn to support. They thus abdicated their powers of government in respect to the United States.

But a large portion of the people, a number of members of the Legislature, and some judicial officers, did not follow their treasonable example. Most of the members of the Legislature who remained faithful to their oaths, met at Wheeling and reconstituted the Government of Virginia, and elected Senators in Congress who now occupy their seats as such. Under this reconstituted Government, a Governor has been elected, who now exercises Executive authority throughout the State, except so far as is excluded by armed rebellion.

By repeated and most significant acts, the Government of the United States has recognized this Government of Virginia as the only legal and constitutional Government of the whole state. And, in my judgement [sic], no other course than this was open to the National Government. In every case of insurrection involving the persons exercising the powers of State Government, when a large body of the people remain faithful and that body, so far as the Union is concerned, must be taken to constitute the State.

It would have been as absurd as it would have been impolitic to deny the large loyal population of Virginia the powers of a State Government, because men whom they had clothed with Executive or Legislative or Judicial powers had betrayed their trusts and joined in rebellion against their country. It does not admit of doubt, therefore, as it seems to me that the Legislature which gave its consent to the formation and erection of the State of West Virginia was the true and only lawful Legislature of the State of Virginia. The Madison Papers clearly show that the consent of the Legislature of the original State was the only consent required to the erection and formation of a new State within its jurisdiction. (Author’s italics).

That consent having been given, the consent of the new State, if required, is proved by her application for admission. Nothing required by the Constitution to the formation and admission of West Virginia into the United States, is, therefore, wanting; and the Act of admission must necessarily be constitutional. Nor is this conclusion technical as some may think.

The Legislature of Virginia, it may be admitted, did not contain many members from the Eastern Counties. It contained, however, Representatives from all counties whose inhabitants were not either rebels themselves or dominated by greater numbers of rebels. It was the only Legislature of the State known to the Union. If its consent was not valid, no consent could be. If its consent was not valid, the Constitution as to the People of West Virginia has been so suspended by the rebellion that a most important right under it is utterly lost. It is safer, in my opinion to follow plain principles to plain conclusions than to turn aside from consequences clearly logical because not exactly agreeable to our views of expediency. (Author’s italics).

And this brings me to the second question. Is the Act of admission expedient? The Act is almost universally regarded as of vital importance to their welfare by the loyal people most immediately interested, and it has received the sanction of large majorities in both Houses of Congress. These facts afford strong presumptions of expediency. It is, moreover, well known that for many years, the people of West Virginia have desired separation on good and substantial grounds; nor do I perceive any good reason to believe that consent to such separation would now be withheld by a Legislature actually elected from all the Counties of the State and untouched by rebel sympathies.

However this may be, much-very much-is due to the desires and Convictions of the loyal people of West Virginia. To them, admission is an object of intense interest; and their conviction is strongly expressed that the veto of the Act and its consequent failure would result in the profound discouragement of all loyal men and the proportionate elation and joy of every sympathizer with rebellion. Nor is it to be forgotten that such a veto will be regarded by many as an abandonment of the views which have hitherto guided the action of the Government in relation to Virginia; will operate as a sort of disavowal of the loyal Government; and may be followed by its disorganization.

No act not imperatively demanded by Constitutional duty should be performed by the Executive, if likely to be attended by consequences like these. It may be said, indeed, that the admission of West Virginia will draw after it the necessity of admitting other States under the consent of extemporized Legislatures assuming to act for whole States, though really representing no important part of their territory. I think this necessity imaginary. There is no such Legislature, nor is there likely to be. No such Legislature, if extemporized, is likely to receive the recognition of Congress or the Executive. (Author’s italics).

The case of West Virginia will form no evil precedent. Far otherwise. It will encourage the loyal by the assurance it will give the national recognition and support; but it will inspire no hopes that the National Government will countenance needless and unreasonable attempts to break up or impair the integrity of States. If a case parallel to that of West Virginia shall present itself, it will, doubtless, be entitled to like consideration; but the contingency of such a case is surely too remote to countervail all the considerations of expediency which sustain the Act. My answer to both questions, therefore, is affirmative. (Author’s italics).

Salmon P. Chase,

Secretary of the Treasury.

ENDNOTES

Many of the primary source archival materials, whether in collections or print versions, are presented in chronological order, regardless of the varying forms, formats, or pagination schemes of the material. Therefore, references to the dates of various events, statements, debates, or other developments chronicled in those documents usually are made in Rogue State’s notes to the dates and document[s] related to specific activities, rather than to specific page numbers in the documents themselves.

________________________________________

1. Virginia. Constitutional Convention, 1829-1830. Proceedings.

2. Richard H. Owens. The Neutrality Imperative. Lanham, Maryland: University Press of America, 2008. The terms SQ or SQ’s refer to the status quo and those who seek to maintain it. Common SQ characteristics include keeping the current economic, social and power structures and leadership in place. The SQ perspective [as opposed to a progressive perspective] places self-interest over community interest; values material goals over ideals; supports opposition to change and preference for the established; shows lack of or less tolerance of differences; favors the haves [themselves] over the have-nots [others]; has an aversion to taxes and tends to share or donate less in relation to wealth than progressive sorts; and a tendency to employ unilateralism and use of force in foreign affairs, as opposed to collective action and -or more peaceful strategies to achieve security for the U.S.

3. Virginia. Constitutional Convention, 1829-1830. Proceedings.

4. Ibid.

5. Virginia. Reform Convention, 1850-1851. Proceedings.

6. Ibid.

7. William Freehling. Road to Disunion. Vol. One: Secessionists at Bay. New York: Oxford, 1990, p. 512. [Also see Vol. Two: Secessionists Triumphant. New York, Oxford, 2007].

8. Virginia. Reform Convention, 1850-1851. Proceedings.

9. Richard O. Curry, “A Reappraisal of Statehood Politics in West Virginia.” Journal of Southern History. 28. 4 (1962), p. 406.

10. Henry Dering (Morgantown) to Waitman T. Willey; March 16, 1861.

11. One can make a case in the 21st century that many West Virginia Democrats are often only nominally so. Presidential voting patterns and attitudes on a number of national issues leaning strongly toward Republican, perhaps even libertarian, views, values, and votes.

12. Otis Rice and Stephen Brown. West Virginia: A History. Lexington: University of Kentucky Press, 1985, 1993, p. 112. Rice and Brown suggest that western Virginians believed that Breckinridge supported both the Union and the South, and thus supported him in 1860 (p. 112). Such a contention again raises the issue: Did Western Virginians truly lean to the Union, or to states’ rights and the South?

13. Virginia. Ordinance of Secession; Votes.

14. Clarksburg [Virginia] Convention of 1861. Resolutions. Also, see Rice and Brown, pp. 113-117 for details regarding some of the various other gatherings in Western Virginia.

15. First Wheeling Convention. Proceedings.

16. Roy Zinn, DVM. Zinn Family Chronology and Genealogy. Tiffin, Ohio. Unpublished manuscript, 2011. According to Dr. Zinn, one of William Zinn’s descendants who has studied the Zinn family intensely for decades, there was no doubt that William B. Zinn was a Union man. In fact, he was typical of many local community leaders caught up in the geographic, moral, social, and political issues and dissensions of the Civil War era in western Virginia.

William’s grandfather emigrated from Germany in the 1760s. He was a farmer, ultimately owning 1,100 acres, and mill owner in Preston County, VA. Zinn was well read and especially knowledgeable in foreign affairs. He had owned about a dozen slaves but sold them at some point before the Civil War. The slaves had originally come through his wife's family (the Franklins) along with $8,000 in gold and other property.

William Zinn was sixty five years old in 1861 when he became a delegate to the first Constitutional Convention in Wheeling. He had been a member of the Virginia Legislature for eight years between 1823 and 1853, so he knew the state and the political arena well. He was a Major in the militia. Later, William Zinn served as a member of the “Restored” Virginia legislature in 1863, and in the West Virginia legislature from 1866 to1868.

17. First Wheeling Convention. Proceedings.

18. Ibid. Carlile ironically quoted Patrick Henry, a fervent states-righter and defender of both slavery and the socio-political status quo in the state.

19. Ibid.

20. Ibid.

21. However, a detailed study by historian Richard O. Curry, A House Divided: A Study of Statehood Politics and the Copperhead Movement in West Virginia (Pittsburgh: University of Pittsburgh, 1964), concluded that a sizeable minority in western Virginia voted for the Ordinance of Secession. The war that was splitting the nation also permanently divided the state of Virginia, and even caused great dissention in its western counties.

22. Virginia. Ordinance of Secession; Votes.

23. Ibid.

24. Ibid.

25. First Wheeling Convention. Proceedings.

26. First Wheeling Convention. Delegates List.

27. First Wheeling Convention. Proceedings.

28. Ibid.

29. Ibid. Most references in the documents cite the term “Reconstituted” Government of Virginia, but the term “Restored” Government of Virginia also was used now and then. hey are virtually interchangeable.

30. Ibid.

31. Ibid.

32. Ibid.

33. Ibid.

34. Ibid.

35. Ibid.

36. Reorganized Government of Virginia. General Assembly. Proceedings.

37. Ibid.

38. Ibid.

39. Ibid.

40. Ibid.

41. United States Senate. Debate on the Acceptance of [WV] Senators Carlile and Willey.

42. Reorganized Government of Virginia. General Assembly. Proceedings.

43. Ibid.

44. Second Wheeling Convention. First Session. Proceedings.

45. Ibid.

46. Ibid.

47. Ibid.

48. Ibid.

49. Ibid.

50. West Virginia First Statehood Referendum.

51. Ibid.

52. West Virginia. First Constitutional Convention. Debates and Proceedings.

53. Ibid.

54. Ibid.

55. The term “Radical Republicans” was a disparaging name directed against Republicans who demanded some punishment of the South for the war, and also required full acceptance of the 13th, 14th, and 15th Amendments by former Confederate states and citizens. The “Radical” agenda included abolition o f slavery and racial equality. Those were truly “radical” notions to Southerners and to most West Virginians.

The “Radical Republicans” also supported emergence of modern industrial-finance-capitalism in the U.S. That agenda was similar to the other “radical” [to Southerners] economic visions for America that had been espoused in the 1790’s by Alexander Hamilton and the Federalists, and later under the Whig “American System” advocated by Henry Clay and John Quincy Adams. To Southern and Northern S.Q.’s [see Note 1], those were “radical” notions. But not so to millions in the North and over four million emancipated slaves.

56. West Virginia. First Constitutional Convention. Debates and Proceedings.

57. Ibid.

58. Ibid.

59. Reorganized Government of Virginia. General Assembly. Proceedings.

60. United States Senate. Debate on the Admission of West Virginia.

61. Ibid.

62. Ibid.

63. United States House of Representatives. Debate on the Admission of West Virginia.

64. See Appendix for these documents.

65. See Note 55.

66. Abraham Lincoln. The President’s Opinion on the Admission of West Virginia.

67. Ibid.

68. United States House of Representatives. Debate on the Admission of West Virginia.

69. West Virginia. First Constitutional Convention. Debates and Proceedings.

70. Ibid.

71. Ibid.

72. United States Congress. Congressional Recognition and Consent to the Transfer of Berkeley and Jefferson Counties to West Virginia.

73. See Appendix for full text.

74. See Appendix for full text.

75. Chase’s argument is highly inaccurate and disingenuous. Most northern political leaders abhorred the idea of five potential new states emerging from Texas. His reference to the composition of the WV legislature contradicts his contention that the Wheeling Convention represented the entire state. That the issue never was resolved by the Supreme Court may be in part related to the fact that Mr. Chase served as Chief Justice from 1864 to 1873, the time during the crucial post-war era when such a case would have most likely been presented.

The essential argument was and remains one of fair representation. Did the legislature of Virginia ever consent to the Commonwealth’s division and the creation of a new state?

76. Reorganized Government of Virginia. An Act Granting Permission for Creation of A New State; and, Reorganized Government of Virginia. Ordinance for the Reorganization of the State Government [of Virginia], 1863.

77. West Virginia. First Constitutional Convention. Debates and Proceedings; and, West Virginia. Revised State Constitution.

78. Ibid.

79. Ibid.

80. Ibid.

81. United States Senate. Debate on the Admission of West Virginia.

82. Ibid.

BIBLIOGRAPHY

I. Primary Source Materials from the West Virginia State Archives and Other Primary Sources.

Ambler, Charles, et.al., eds. Debates and Proceedings of the First Constitutional Convention of West Virginia, 1861-1863. 3 vols. Huntington, WV: Gentry Brothers, 1942.

Boreman, Arthur I. Governor’s Inaugural Address.

Clarksburg [Virginia] Convention of 1861. Resolutions.

First Constitutional Convention of West Virginia. Debates and Proceedings.

First Wheeling Convention. Proceedings.

———. Delegates List.

Guyandotte [Virginia]. Meeting of April 20, 1861. Proceedings.

Kingwood Chronicle. “Letter To the People of North-Western Virginia,” May 25, 1861.

Lincoln, Abraham. Cabinet. Opinions on the Admission of West Virginia.

———. The President’s Opinion on the Admission of West Virginia.

Newspaper Editorials on the Declaration of the People of Virginia, 1863.

Pierpont, Francis. Governor’s Address to the Reorganized Government of Virginia, May 6, 1862.

Reorganized Government of Virginia. An Act Granting Permission for Creation of A New State.

———. List of Delegates and Senators.

———. General Assembly. Proceedings.

———. Ordinance for the Reorganization of the State Government [of Virginia], 1863.

Second Wheeling Convention. First Session, Proceedings.

———. List of Delegates.

———. Second Session , Proceedings.

Staunton [VA] Convention of 1816. Proceedings.

United States Congress. Congressional Recognition and Consent to the Transfer of Berkeley and Jefferson Counties to West Virginia.

United States Senate. Debate on the Admission of West Virginia.

———. Debate on Acceptance of [WV] Senators Carlile and Willey.

United States House of Representatives. Debate on the Admission of West Virginia.

Van Winkle, Senator Peter. Speech on the Reorganization of Virginia and the Admission of West Virginia to the Union.

Virginia. 1860 Presidential Votes.

———. 1861 Ordinance of Secession.

———. Constitutional Convention, 1829-1830, Proceedings.

———. Ordinance of Secession; Votes.

West Virginia. Constitution, 1863.

———. Constitutional Convention. List of Delegates.

———. First Constitutional Convention. Debates and Proceedings.

———. First Statehood Referendum.

———. Legislative Act Making Berkeley County a part of West Virginia.

———. Legislative Act Making Jefferson County a part of West Virginia.

———. Map of the New State of West Virginia.

———. Resolution of the Committee to Seek Compensation for Loyal Slaveholders.

———. Revised State Constitution. Votes of the Delegates.

———. Revised State Constitution.

———. Statehood Proclamation.

Whaley, Kellan V. Speech in Congress on the Admission of West Virginia to the Union.

Wheeling. Mayoral Proclamation, April 19, 1861.

Willey, Senator John. Willey Amendment [The].

II. Other Bibliographical Materials & Sources: alphabetical order by author or source.

Ambler, Charles. Francis H. Pierpont. Chapel Hill: University of North Carolina, 1937.

———. Sectionalism in Virginia from 1776 to 1861. Chicago: University of Chicago, 1910.

———. The Makers of West Virginia and Their Work. Huntington, WV: Gentry Brothers, 1942.

———. Waitman Thomas Willey. Huntington, WV: Standard Printing, 1954.

Ambler, Charles, and Summers, Festus. West Virginia: The Mountain State, 2nd ed. Englewood Cliffs, NJ, Prentice Hall, 1958.

Blair, Jacob Beeson. “Lincoln's Approval of the Statehood Bill.”

Curry, Richard O. A House Divided: A Study of State Politics and the Copperhead Movement in West Virginia. Pittsburgh: University of Pittsburgh, 1964.

———. “A Reappraisal of Statehood Politics in West Virginia.” Journal of Southern History. 28. 4 (November 1962), pp. 403-421.

First Constitutional Convention of West Virginia. Debates and Proceedings.

———. "What's In a Name: The Naming of West Virginia.” Dec. 3, 1861.

Freehling, William. Road to Disunion. Volume One: Secessionists at Bay. New York: Oxford, 1990, p. 512. [Also see Volume Two: Secessionists Triumphant. New York, Oxford, 2007].

Gerofsky, Milton. “Reconstruction in West Virginia.” West Virginia History. 6 (July 1945), pp. 295-360; and 7 (October 1945), pp. 5-39.

Gray, Gladys. The Presidential Campaign of 1860 in Virginia and Its Aftermath Lexington: University of Kentucky, Ph.D. dissertation, 1941.

Owens, Richard H. The Neutrality Imperative. Lanham, Maryland: University Press of America, 2008.

Randall, J.G. Constitutional Problems Under Lincoln. Urbana: University of Illinois, 1951.

Rice, Otis and Brown, Stephen. West Virginia: A History. Lexington: University of Kentucky Press, 1985, 1993.

Shaffer, Dallas. “Lincoln and the ‘Vast Question’ of West Virginia.” West Virginia History. 32 (January 1971), pp. 86-100.

Shanks, Henry. The Secession Movement in Virginia, 1847-1861. Richmond: Garrett and Massie, 1934.

Winston, Sheldon. “Statehood for West Virginia: An Illegal Act.” April 1869.

Woodward, Isaiah A. “Opinions of President Lincoln and His Cabinet on Statehood for Western Virginia, 1862-1863,” West Virginia History 21 (April 1960): 161-62, 17-76, 177-79.

Zinn, Roy. Zinn Family Chronology and Genealogy. Tiffin, Ohio. Unpublished manuscript, 2011.

Table of Contents

INTRODUCTION

1 OVERVIEW

2 BACKGROUND

3 DESIGNS FOR DIVISION AND DISMEMBERMENT

4 PRECIPITATION: THE CRITICAL EVENTS OF 1859 AND 1860

5 THE FIRST ACT OF SECESSION: VIRGINIA

6 CONSTITUTIONAL LEGERDEMAIN: SECEDING FROM A SECEDED STATE

7 ON THE BATTLEFIELD

8 ROGUE STATEHOOD

9 LINCOLN’S CONCERNS AND CONGRESSIONAL INTENT

10 WEST VIRGINIA CONSTITUTIONS AND POLITICS

11 EPILOGUE

APPENDIX

ENDNOTES

BIBLIOGRAPHY