The creation of West Virginia

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#1
I am presently working on a project that sits at the intersection of two of the most important facets of my life: history and the law. Specifically, it deals with the creation of the State of West Virginia and whether that act was unconstitutional (it clearly was).

Here's a brief recitation of the facts.

The Commonwealth of Virginia passed an ordinance of secession in the late spring of 1861. The northwestern part of the state was opposed to it. Consequently, two conventions were held at Wheeling wherein an ordinance of secession for roughly 49 counties of Virginia was passed--these were loyal to the Union. Voters of those counties passed a referendum that adopted that ordinance of secession. A so-called Reorganized Government of Virginia, complete with a governor, lieutenant governor, legislators, etc., was then formed. That Reorganized Government, claiming to speak for the entire Commonwealth, then passed legislation to apply to Congress to admit a new state.

The problem? This is the pertinent language of the US Constitution, which is Article IV, Part 3, Clause 1:

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.

Here, the fiction was that the Reorganized Government of Virginia, purporting to speak for both the new state and the old state, passed the necessary legislation and submitting the application to Congress. It's all very questionable at best. After a great deal of debate, both houses of Congress passed it in the fall of 1862 and sent the bill to Lincoln for signature.

Lincoln, who was a very able lawyer, had real concerns about the constitutionality of the action despite the political expediency of adding an important new Union state; the B&O Railroad passed through the northernmost counties of the new state and was crucial to the Union war effort, and it was very much in the administration's interest to keep it open. Lincoln asked his six cabinet officers--Seward (State), Stanton (War), Bates (Attorney General), Blair (Postmaster General), Chase (Treasury) and Welles (Navy)--to provide him with their written opinions about the constitutionality and expediency of signing the bill. A seventh cabinet member, Caleb B. Smith, had just resigned as Secretary of the Interior to accept an appointment as a federal judge and no successor had been yet appointed, leaving an even number of cabinet officers. Lincoln then wrote his own opinion. He signed the legislation on December 31, 1862, and West Virginia formally joined the Union on June 20, 1863.

Lincoln's written opinion is readily available in the compiled works of Lincoln, although I will provide it here later. The other six are not readily available. After a great deal of diligent searching, I was unable to find them published in their entirety anywhere. I finally found them in the digitized collection of the Abraham Lincoln Papers at the Library of Congress, including transcriptions of them. I had to look through several thousand documents to locate them, but I did do so.

In the next series of posts, I will provide them here verbatim. The story of the creation of West Virginia is a fascinating exercise of realpolitik.
 

(Membership has it privileges! To remove this ad: Register NOW!)

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#2
From Montgomery Blair to Abraham Lincoln, December 26, 1862

Sir:

On the questions submitted by you relating to the admission of West Virginia into the Union, I submit the following considerations.

1. As to the constitutional question.

The first clause of the Third section of the fourth article of the Constitution provides that “new states may be admitted by the Congress into this Union, but no new 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 States concerned as well as of the Congress.” The objection that this language in the present case requires the consent of both East and West Virginia because it requires the consent of both the States concerned, seems to me not to be well taken, because 'till West Virginia be admitted there are not two States concerned.

The question is only whether the State of Virginia has consented to the partition of her Territory and the formation of that part of it called Western Virginia into a separate State. In point of fact it will not be contended that this has been done, for it is well known that the elections by which the movement has been made did not take place in more than a third of the counties of the state, and the votes on the Constitution did not exceed twenty-thousand.
The argument for the fulfilment of the constitutional provisions applicable to this case rests altogether on the fact that the Government organized at Wheeling (in which a portion of the District in which it is proposed to create the new state is represented with a few of the Eastern counties) has been recognized as the Government of the State of Virginia for certain purposes by the Executive and Legislative branches of the Federal Government, and it is contended that by these acts the Federal Government is estopped from denying that the consent given by this Government of Virginia to the creation of the new State, is a sufficient consent within the meaning of the constitution. It seems to me to be a sufficient answer to this argument to say: First, that it is confessedly merely technical, and assumes unwarrantably, that the qualified recognition which has been given to the Government at Wheeling for certain temporary purposes, precludes the Federal Government from taking notice of the fact that the Wheeling Government represents much less than half the people of Virginia when it attempts to dismember the State permanently. Or, Second, That the present demand, of itself, proves the previous recognitions relied on to enforce it, to be erroneous. For, unquestionably, the 4th Article of the Constitution prohibits the formation of a new state within the jurisdiction of an old one without the actual consent of the old State, and if it be true that we have so dealt with a third part of the people of Virginia as that to be consistent we should now permit that minority to divide the State, it does not follow that we should persist, but on the contrary it demonstrates that we have heretofore been wrong, and if consistency is insisted on, and is deemed necessary, we should recede from the positions heretofore taken.

2. As to the Expediency of the measure

But I do not think it either necessary to recede from these positions or pro per to take the new step insisted on now. There is no positive prohibition in the constitution against the action taken by the Senate and House of Representatives in relation to the recognition of the Wheeling Government, or in relation to the action taken by the Executive, and all that can be said, if we reject the claim of the Wheeling Government to represent the people of Virginia for the purpose now under consideration will be that it admits our previous action to have been irregular. The answer to th is is, that if not regular, it was substantially just, and the circumstances of the case excuse the irregularity. For it was proper that the loyal people and the State of Virginia should be represented in Congress, and the representation allowed was not greater than their numbers entitled them to. But whilst it was just to the people of Western Virginia, whose country was not over-run by the rebel armies, to allow this representation, and for this purpose, and for the purposes of local government to recognize the State Government instituted by them, it would be very unjust to the loyal people in the greater part of the State, who are now held in subjection by rebel armies, and who far exceed in number the twenty thousand who have voted on the constitution for Western Virginia, to permit the dismemberment of their state without their consent. It is no fault of the loyal people of Virginia that they are not in condition to be heard on this question according to the forms of law. The State is held by armies which they could not resist, and which so far the Federal Government itself has not been able to eject from the State. If these armies were driven from the State, and the people still refused to recognize their obligations to the General Government, their wishes might be properly disregarded in the action of that government with respect to the question before us. But until that is done, I think a measure which affects them so greatly should be postponed. If hurried through now, it will probably be the source of lasting irritation between the people of the two sections of the State — and it will I am sure form the only obstacle, but a most serious one to an immediate restoration of the proper relations of the State to the General Government after the rebel armies are driven from it.

But there are yet more important considerations which would induce me to postpone this movement. It has been said with truth that Western Virginia has been a step-child to the Eastern portion of the State where hitherto all political power has resided— And it is the injustice and oppression — the disfranchisement — and unequal taxation which has been exercised by the ruling class in the commonwealth for many long years which has alienated the people of the West. These wrongs have been familiar to me from childhood for among the people of Kentucky they found warm sympathy. It is not therefore from want of sympathy with them that I oppose their wishes at this moment— But it is because in my view of the situation at present the days of their tyrants have passed away never to return and the hour is near when they have but to reach forth their hands & redress not only their own greivances but to restore the old commonwealth to honor & power in the sisterhood of States— Each county as we remove the armed rebel hordes now overrunning the state will affiliate with the free government of the west & of the Union — and the men of the west who have lead the vanguard of freedom in the State will naturally control the policy of the Regenerated State — what a glorious prospect thus opens to a state with one front on the Ocean with such a port as Hampton Roads, and another front on a great tributary of the Mississippi River— Give the people of the west time to consider this subject in the light of events which cannot be distant and which will open to their view the power they will possess to make the State of Virginia one of the greatest of the new world and they will thank the Statesman who refused his sanction to their wishes form ed amidst the exasperations of civil war and a sense of wrongs which they will soon see can never be perpetrated again.

If ever there was a case of hasty legislation calling for the interposition of the Executive this bill is one of that kind— No measure of such importance to the interests of a great people was ever passed through Congress with so little discussion. The condition of the country when the bill was before the Senate & House of Representatives seems to have so occupied the attention of the able men in those bodies, that they seem with rare exceptions not to have appreciated the importance of the measure, and it lead to but little discussion in either house— The only consideration which seems to have invited favor or opposition was the fact that a free state was to be made of the part to be erected into a new State— This consideration would weigh with me if it believed the Union was to be divided and that the eastern portion of the State was to be left the Rebels & to Slavery— But I look for neither result— I do not believe disunion possible & I shrink from a measure which looks like preparing for it—But as the reestablishment of the Federal power in Eastern Virginia extinguishes Slavery there & thus removes the great cause of oppression upon the west & at the same time puts the power of the State in the hands of those who have been oppressed, every ground upon which the measure was advocated will be speedily removed.

The bugbear of the indebtedness created by the Rebel Legislature which is paraded by the friends of the measure, is easily disposed of— It will be repudiated of course by the true Legislature of the State— As respects the old & legal debts of the State the benefits of which it is alleged have not been fairly apportioned between the east & the west, — the new Regime will have the power to regulate the subject fairly & will doubtless do so— The Federal government might aid them greatly in this object & at the same time contribute greatly to the reconstitution of Society in the State upon a healthy basis by turning over to the State the forfeited Estates of traitors within it— The forfeitures will be more thoroughly enforced by such means and the property more rapidly passed into the hands of new men whose tenure will be fealty to the new order of things in the state and to the old flag of the Union— But without any pecuniary help from the Federal government the boon of Freedom which the Federal arms will ere long give to the State will soon bring wealth to it — which will make these old debts light, and all the more rapidly if the old boundaries are preserved so that the enlightened and enterprising men of the west who will rule in the councils of the great commonwealth are not shorne of their power by this measure— The idea that the mountains which divide the sections require the proposed political division has become obsolete by the use of Rail-Roads and Canals— What sane man would propose to divide the state of Pennsylvania which is divided physically by the same ranges of mountains? What irreparable mischief would have been done to that magnificent State if such a sacrafice had been made of her real & permanent interests on account of some temporary wrongs, as is now proposed with respect to the interests of Virginia for reasons not worth a thought to a Statesman— It may it this moment please the Western Virginians to favor a measure so cruel to the great interests of the State— But in my judgment the time is not far removed when no man among them would regard the measure otherwise than a Western Pennsylvania man would now regard a proposition to dismember that State — and I believe if the President refuses his sanction to the measure because it is pernicious to their best interests, the people of West Virginia will soon see in such refusal a thoughtfulness for their welfare which will endear his name to them forever.

I think the measure will be distasteful to the people generally— The legality of the act will be questioned and the reply we have to give is as I have said technical only— We cannot say truly that the measure has the sanction of the people of Virginia or, even to the majority of the loyal people of that State— We cannot plead necessity for the act as we have for other acts which have been questioned— It will serve therefore to fix upon the dominant party here the charge of disregarding the law & the constitution by which our adversaries have sought to destroy the confidence of the people in the administration.

The subject is one which will engage public attention hereafter if not immediately so that our action on it will characterize the administration in the annals of the country— It is with the rights of the States we are dealing — we have heard indeed something too much of such things lately and some persons may therefore be disposed at this moment to ignore them altogether— But this will be found to be a great error.— The people of all the States have always manifested a wise solicitude for the just rights of the States & have never tolerated the slightest invasion of them— This arises not from mere State pride or vanity so ostentatiously displayed by Coxcombs— It is founded on the knowledge possessed by the thinking & controlling minds that the excellence of our system of government depends on carefully guarding those rights.— In dismembering the State which has still a hold on the hearts of our people as the land of Washington, Jefferson, Madison, Monroe and other immortal names, there should therefore be no room for debate on the legality of the act.

Very respectfully

Your obt sevt

M Blair
P M Genl
P O Dept
Washington Decr. 26. 1862
 

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#3
From William H. Seward to Abraham Lincoln, December 26, 1862

Western Virginia is organized unquestionably with all the constitutional elements and faculties of a State, and with a republican form of government. It, therefore, has a title to be a candidate for admission into the Federal Union.1 Congress has power to admit new States, but it is a power restricted within certain limitations. One of these limitations is that no new State shall be formed or erected within the jurisdiction of any other State without the consent of that State as well as the consent of the new State and the consent of Congress. It is an undisputed fact that the new state of Western Virginia has been both formed and erected within the jurisdiction of the State of Virginia. Has the consent of the State of Virginia to the formation and erection of the State of West Virginia been given, or has it not been given? Upon this point the constitutionality of the Act of Congress now before me turns. The constituted and regular authorities of a State called the State of Virginia sitting at Wheeling, within the jurisdiction of that State, claiming to be the St ate of Virginia, and acting as such, have in a due and regular manner declared and given the consent of the State of Virginia to the formation and erection of the State of West Virginia within the jurisdiction of the State of Virginia. Thus far the case se ems simple and clear. But it is just at this point that a complication begins. If we would unfold it successfully we must first state the existing facts in regard to the constitutional position of the State of Virginia, as well as those which belong to the formation and erection of the new state of West Virginia.

About the month of April, 1861, an insurrection against the Federal Union broke out within the State of Virginia. The constituted authorities, with the seeming consent of a majority of the People of the State, inaugurated a revolutionary war which they h ave carried to the extreme points of pronounced independence and the setting up of a pretended revolutionary and belligerent government. The organized political body which has committed this treason, having broken and trampled under its feet the Constitution, and even the Union, of the United States, is still standing in that treasonable attitude within the jurisdiction of the State of Virginia, but it has been dislodged from that portion of that jurisdiction which is contained within the new state of West Virginia. This organization has not given its consent to the formation and erection of the state of Western Virginia, and in its present attitude it is clear that it neither can nor will give that consent. The State of Virginia having thus fallen into revolution, the people living within that part of its jurisdiction which is embraced within the new state of West Virginia, adhering in their loyalty to the State of Virginia and also to the United States, availed themselves of the fortune of the civil war to discard the treasonable authorities of Virginia, reorganized the State, and with all needful forms and solemnities chose and constituted the public functionaries for the state as nearly in conformity with the constitution of Virginia as in the revolutionary condition of that State was practicable. The State of Virginia, thus reorganized, appeared in Congress by its representatives in both Houses, and was then deliberately acknowledged and recognized by the Executive, as well as by the Legislature of the United States, as the State of Virginia, one of the original members of the Federal Union. This State of Virginia, thus constituted and acknowledged, has given its consent to the formation and erection of the State of West Virginia, within the jurisdiction of the State of Virginia. Why is not this consent an adequate one?

We can object to it only on the ground that the political body which gave the consent is not in fact and in law really the State of Virginia. It is replied with great force that the United States are estopped from assuming that position. I do not think it necessary, however, to rely upon that ground. There is no nee d of the plea of estoppel when justice can be done without it, and, whatever may be the force of an estoppel in law when it works injustice, it ought not to be allowed in politics when it works in that way. It seems to me that the political body which has given consent in this case is really and incontestably the State of Virginia. So long as the United States do not recognize the secession, departure, or separation of one of the States, that State must be deemed as existing and having a Constitutional place within the Union, whatever may be at any moment exactly its revolutionary condition. A State thus situated cannot be deemed to be divided into two or more states merely by any revolutionary proceeding which may have occurred, because there cannot be constitutionally two or more States of Virginia. There must and can be, in the view of the Constitution, at all times only one State of Virginia. Here are two distinct political bodies, each asserting itself to be that one State of Virginia. Some constituted power must decide this dispute. The point in dispute necessarily affects the Federal Union. No matter whether the one or the other of these two bodies is the real State of Virginia, the Federal Union has authority to maintain within the State, which cannot and must not be left in abeyance, and the body which is truly the State of Virginia has rights and holds obligations upon the Federal Union which must be conceded and fulfilled. The United States must therefore decide for themselves, so far as their rights and responsibilities extend, which of the two political bodies asserting themselves respectively to be the State of Virginia is truly the State, and which is not. The United States are not shut up within a necessity for deciding it in favor of either body. They can say that, although the old organization is for the present moment disloyal, treasonable, and insurrectionary, yet it shall not be deprived of its powers and privileges. Or they may say, on the other hand, that this old organization has forfeited and lost its right to be regarded as a constitutional one, and it shall be suppressed, and a new and loyal one, constituted in its place, shall be acknowledged as the State of Virginia, and dealt with accordingly. It is a practical question, to be decided by the United States upon the grounds of public necessity or expediency, with a view to the best and permanent interests of the State of Virginia and of the United States. As I have already intimated, the question has been heretofore decided by the United States in favor of the new and against the old organization. The newly organized State of Virginia is therefore, at this moment, by the express consent of the United States, invested with all the rights of the State of Virginia, and charge d with all the rights, powers, privileges and dignity of that State. If the United States allow to that organization any of these rights, powers and privileges, it must be allowed to possess and enjoy them all. If it be a state competent to be represented in Congress and bound to pay taxes, it is a state competent to give the required consent of the State to the formation and erection of the new State of West Virginia within the jurisdiction of Virginia.

But in reply to this it is said that the new State of West Virginia includes substantially all of the State of Virginia which is actually occupied by and submissive to the re-organized State of Virginia, so that this re-organized State of Virginia must cease to exist the moment that by its consent the State of West Virginia shall have come into the Federal Union. This argument seems to me unsatisfactory and inconclusive. Western Virginia will not then be the State of Virginia, nor will the State of Virginia cease to exist, although, through accidents of Civil war, there shall for the moment be no loyal and constitutional political organization of the state. Within that part of the jurisdiction of the original state of Virginia which will remain, there will still be a State of Virginia, the old State, wit h its constitutional functions wholly or in part suspended or in abeyance, but capable of complete reconstruction and reorganization by its people, just as the state was reorganized and reconstructed when the government now at Wheeling was organized. If it be said that his is unjust to the State of Virginia, I answer that the constitutional reservation of a right on the part of that State to object to the foundation and erection of a new state within her limits, was a reservation for her benefit. If, through perverseness and disloyalty, a majority of her people, in a revolutionary way, put themselves into a condition in which they cannot and will not assert that right, they cannot by that wrongful and injurious course deprive the loyal people of Western Virginia of their claim to be heard when, in a constitutional manner, they form and erect a new State, or deprive Congress of the power to decide the question as the interests and the Safety of the whole country require.

I am therefore of opinion that the Act for the admission of West Virginia is a constitutional one.

Upon the question of expediency I am determined by two considerations. First. The people of Western Virginia will be safer from molestation for their loyalty, because better able to protect and defend themselves as a new and separate State, than they would be if left to demoralizing uncertainty upon the question whether, in the progress of the war, they may not be again reabsorbed in the State of Virginia, and subjected to severities as a punishment for their present devotion to the Union. The first duty of the United States is protection to loyalty wherever it is found. Second. I am of opinion that the harmony and peace of the Union will be promoted by allowing the new State to be formed and erected, which will assume jurisdiction over that part of the valley of the Ohio which lies on the South side of the Ohio river, displacing, in a constitutional and lawful manner, the jurisdiction heretofore exercised there by a political power concentrated at the head of the James river.

Respectfully submitted:

William H. Seward.
Department of State.
Washington. December 26. 1862.
 

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#4
This is Stanton's. Given that Stanton was a former Attorney General of the United States, Stanton's opinion is of remarkable brevity.

From Edwin M. Stanton to Abraham Lincoln, December 26, 1862

Washington City. D. C.
December 26th 1862

Sir,

In conformity with your request for my written opinion in respect to the constitutionality and expediency of the Act of Congress “ for the admission of the State of West Virginia into the Union and for other purposes”, I answer:

1st. That in my opinion the above mentioned Act of Congress is constitutional

2d It is, in my judgment, expedient.

Some of the reasons for the foregoing opinion may be briefly stated.

The Constitution expressly authorizes a new state to be formed or erected within the jurisdiction of another state. The Act of Congress is in pursuance of that authority. The measure is sanctioned by the Legislature of the State within whose jurisdiction the new state is formed. When the new state is formed, its consent can be given, and then all the requirements of the Constitution are complied with. I have been unable to perceive any point on which the Act of Congress conflicts with the Constitution.

By the erection of the new state, the Geographical boundary heretofore existing between the free and slave states will be broken, and the advantage of this upon every point of consideration surpasses all objections which have occurred to me on the question of expediency. Many prophetic d angers and evils might be specified, but it is safe to suppose that those who come after us will be as wise as ourselves and if what we deem evils be really such, they will be avoided. The present good is real and substantial, the future may safely be left in the care of those whose duty and interest may be involved in any possible future measures of legislation.

I have the honor to be

Very respectfully

Your obedient servant

Edwin M Stanton
Secretary of War
 

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#5
From Edward Bates to Abraham Lincoln, December 27, 1862

Attorney General's Office,
December 27, 1862.

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 the members of the Cabinet, separately, the following questions, for their opinion and advice thereon.

1. Is the said act constitutional?

2. Is the said act expedient?
I am of opinion that the bill is not warranted by the Constitution. And, in examining this proposition, I think it well 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, and

First, the letter— Art 4. §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, any 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 that 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, coëval with that fact. For, if that be so, the Congress makes the State; for no power but Congress can admit a State into 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 State concerned, as well as of the Congress” , do or 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 or parts of States”. If it do 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 cases 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 — 1. In the absence of proof to the contrary, I assume, that both Congress and the people did obey the constitution, and fulfil all its requirements, in form and substance. 2. 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 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 very 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 power — 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.

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 knew (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. 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 people, which though known and recognized, is never regulated by la w, 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. 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 the 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 counties which constitute the new State of West Virginia. 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 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 a mere abuse, nothing less than attempted secession, hardly veiled under the flimsy forms of law.

Fortunately, however, even that flimsy veil does 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. 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.

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 inconsideration.

The preamble, after various recitals, gives the consent of Congress, “that the forty-eight counties (which had been named above, without any general boundary) 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 badly. However pure the real 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”,&c, “make and ratify the change aforesaid, and properly certify” &c. “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 time. 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 made his duty to issue it. And surely it is not his duty to do whatever may be lawfully done. By express act of Congress, it is lawful for the President, by proclamation, as in this case, 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, 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 little 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.

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 thought, will be glad to be relieved by a veto, from the evil consequences of such improvident legislation.

All which is, most respectfully submitted,

by your obedient servant,

Edwd. Bates
Attorney General.
 

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#6
From Gideon Welles to Abraham Lincoln, December 29, 1862

Navy Department,
December 29, 1862.

Sir:—

The bill entitled “an act for the admission of the State of West Virginia, and for other purposes,” which has passed the two Houses of Congress, will, if it become a law, divide the commonwealth of Virginia, and erect a new State within its jurisdiction.

The Constitution declares that “new States may be admitted by the Congress into this Union, but no new 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 without the consent of the Legislatures of the States concerned as well as of the Congress.”


While permission is herein granted to Congress and the Legislatures of the States directly interested to create a new State, there is, at the same time, a guarantee that the integrity of the States respectively shall be maintained, and that no new States hall be erected within the limits of any one of them without its consent.

Has such consent of the Legislature and people of Virginia been obtained to the formation and erection within its limits of the proposed new State as to place it clearly and unequivocally, in honest good faith, within the letter and spirit of the constitutional guarantees and requirements?

If the consent of the Legislature of the State of Virginia has been obtained in accordance with the constitutional design and intent, there is not, that I am aware, any constitutional objection to the measure. The decision should not, however, be a forced and mere technical one, for the dismemberment of a State against its wishes and in violation of the spirit of the Constitution will be fraught with evil, now and in the future, to the State and to the Union.

An extraordinary condition of affairs exists at this time in Virginia and the country, and the period is not the most propitious opportunity for a calm and dispassionate consideration and decision of a measure of this gravity and importance. A deep and wide-spread insurrection, having for its object a division of the Union, and taking on the forms of a government, is convulsing the country. Virginia is involved in this conspiracy. A large proportion of its territory is overrun by the insurgents, and the loyal feeling of its inhabitants suppressed by invasion. The Federal Government has failed, thus far, to extinguish the insurrection, or to expel the invaders, or to abrogate the pretended form of Government which they have established; and in the mean time, the loyal citizens of a particular section of the State avail themselves of the occasion to forward a movement for the dismemberment of the commonwealth by proceedings which, having certainly their origin in a revolutionary state of facts, may be deemed in themselves somewhat revolutionary, and which, if carried into effect at this juncture, will be likely to aggravate our national troubles.

Under existing necessities, an organization of the loyal citizens, or of a portion of them, has been recognised, and its Senators and Representatives admitted to seats in Congress. Yet we cannot close our eyes to the fact, that the fragment of the St ate which, in the revolutionary tumult, has instituted the new organization, is not possessed of the records, archives, symbols, traditions, or capital of the commonwealth. Though calling itself the State of Virginia, it does not assume the debts and obligations contracted prior to the existing difficulties. Is this organization then, really and in point of fact, any thing else than a provisional government for the State? It is composed almost entirely of those loyal citizens who reside beyond the mountains, and within the prescribed limits of the proposed new State. In this revolutionary period, there being no contestants, we are compelled to recognise the organization as Virginia. Whether that would be the case, and how the question would be met and disposed of were the insurrection this day abandoned, need not now be discussed.

Were Virginia, or those parts of it not included in the proposed new State invaded and held in temporary subjection by a foreign enemy instead of the insurgents, the fragment of territory and population which should successfully repel the enemy and adhere to the Union would doubtless, during such temporary subjection, be recognised, and properly recognised, as Virginia. When, however, this loyal fragment goes farther, and not only declares itself to be Virginia, but proceeds, by its own act, to detach itself permanently and forever from the commonwealth, and to erect itself into a new State within the jurisdiction of the State of Virginia, the question arises whether this proceeding is regular, legal, right, and, in honest good faith, conformable to, and within the letter and spirit of, the Constitution.

I confess that from the brief examination I have been able to give the subject, it is not, to my mind, entirely divested of all constitutional doubt & objection.

If the act submitted for approval be unconstitutional, or if its constitutionality is susceptible of a doubt, it certainly cannot be expedient that it should be consummated. A dismemberment or division of one of the States is prima facie inexpedient, and it should not be done except with the clear, full, and explicit consent of the State which is to be severed.

To preserve the States in their integrity is an imperative duty of the government and country. It would be no trivial act to break up, even in the most regular and formal manner, and in time of peace, an ancient commonwealth; and unless the people themselves, in the mode prescribed by the Constitution, deliberately and voluntarily consent to the formation or erection of a new State within the jurisdiction of an old one, Congress should not, by any exercise of questionable authority, attempt to enforce a division or separation. An observance of the rights of the States is conducive to the union of the States, and a regard for both should prevent such hasty action as will seriously affect either. The Federal government is not authorized to divide or dismember a State; and yet there is no denying the fact that on the approval or rejection of this act, presented to the Executive at this unfortunate time for calm and deliberate action, depends the division or integrity of the State of Virginia. Can it be said to be the wish of the people of Virginia that a new State shall be erected within its jurisdiction, or that they have duly signified their consent to it?


Congress may admit new States into the Union; but any attempt to dismember or divide a State by any forced or unauthorized assumption would be an inexpedient exercise of doubtful power to the injury of such State. Were there no question of doubtful constitutionality in the movement, the time selected for the division of the State is most inopportune. It is a period of civil commotion, when unity and concerted action on the part of all loyal citizens and authorities should be directed to a restoration of the Union, and all tendency towards disintegration and demoralization avoided. Cannot the people of the forty-eight counties comprising the proposed new state of Western Virginia do more to effect this restoration, to secure peaceful relations, and to give Virginia her rightful position, by remaining with her, a part of her, one and indivisible, than by separation? If such be the case, it is assuredly inexpedient at this time to divide the old Commonwealth and erect Western Virginia, with its proposed objectionable boundaries, into a new State. It would, I fear, if consummated, tend to separation rather than to union, and make more difficult the great object which all loyal people aim to secure.

I do not perceive that injury will be inflicted by postponing for the present the erection of a new State within the limits of Virginia. Those who constitute the present organization and those who would compose the proposed new State are almost identical, so much so, that they can shape the laws and institutions of the community in which they reside. They have their full representation in the national Councils, and their full vote and influence on all national questions. Should this disturbing element of a desire for a division of Virginia remain after the insurrection shall have been suppressed, a peaceful, constitutional, and satisfactory arrangement may then be effected. The consummation of the measure at the present time will, I apprehend, farther complicate and embarrass the Government, and retard its efforts for an effective and speedy adjustment of our national affairs.

Believing as I firmly do in the restoration of the Union and the establishment of the Government on a basis more enduringly satisfactory and correct than ever heretofore, I also anticipate a state of things that will, in the progress of events, make north-western Virginia serviceable in promoting the great cause of State and national regeneration. The loyal spirit of West Virginia will, I trust and believe, infuse itself into the disloyal section, and render the whole united people of that great commonwealth, which has unsurpassed natural advantages, as conspicuous in the future as in the past in support of the Union, the Constitution, and the rights of man. It is undoubtedly the true policy of Virginia to preserve its territorial integrity; and the day cannot be distant when, under an improved dispensation, the people beyond the mountains, no less than those of the valley and of the tide-water section, will be converts to that policy, and satisfied that a division would be unwise and inexpedient.


I do not therefore deem it expedient that West Virginia should be erected into a State, nor advise that the bill be approved.

I have the honor to be,

Very respectfully,

Gideon Welles
Secretary of the Navy.
 

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#7
Finally, this is Lincoln's opinion. It carried the day.

THE CONSENT of the Legislature of Virginia is constitutionally necessary to the bill for the admission of West Virginia becoming a law. A body claiming to be such Legislature has given its consent. We can not well deny that it is such, unless we do so upon the outside knowledge that the body was chosen at elections, in which a majority of the qualified voters of Virginia did not participate. But it is a universal practice in the popular elections in all these States to give no legal consideration whatever to those who do not choose to vote, as against the effect of the votes of those who do choose to vote. Hence it is not the qualified voters, but the qualified voters, who choose to vote, that constitute the political power of the State. Much less than to non-voters, should any consideration be given to those who did not vote, in this case: because it is also a matter of outside knowledge, that they were not merely neglectful of their rights under, and duty to, this government, but were also engaged in open rebellion against it. Doubtless among these non-voters were some Union men whose voices were smothered by the more numerous secessionists; but we know too little of their number to assign them any appreciable value. Can the government stand, if it indulges Constitutional constructions by which men in open rebellion against it, are to be accounted, man for man, the equals of those who maintain their loyalty to it? Are they to be accounted even better citizens, and more worthy of consideration, than those who merely neglect to vote? If so, their treason against the Constitution, enhances their constitutional value! Without braving these absurd conclusions, we cannot deny that the body which consents to the admission of West Virginia, is the Legislature of Virginia. I do not think the plural form of the words "Legislatures" and "States" in the phrase of the Constitution "without the consent of the Legislatures of the States concerned" has any reference to the new State concerned. That plural form sprang from the contemplation of two or more old States, contributing to form a new one. The idea that the new state was in danger of being admitted without its own consent, was not provided against, because it was not thought of, as I conceive. It is said, the devil takes care of his own. Much more should a good spirit - the spirit of the Constitution and the Union - take care of its own. I think it can not do less, and live.

But is the admission into the Union, of West Virginia, expedient. This, in my general view, is more a question for Congress, than for the Executive. Still I do not evade it. More than on any thing else, it depends on whether the admission or rejection of the new State would, under all the circumstances tend the more strongly to the restoration of the National authority throughout the Union. That which helps most in this direction is most expedient at this time. 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 can not fully retain their confidence, and co-operation, if we seem to break faith with them. In fact, they could not do so much for us, if they would.

Again, the admission of the new State turns that much slave soil to free; and thus, is a certain, and irrevocable encroachment upon the cause of the rebellion,

The division of a State is dreaded as a precedent. But a measure made expedient by a war, is no precedent for times of peace. It is said the admission of West Virginia is secession, and tolerated only because it is our secession. Well, if we can call it by that name, there is still difference enough between secession against the Constitution, and secession in favor of the Constitution.

I believe the admission of West Virginia into the Union is expedient. - Abraham Lincoln, December 31, 1862,
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
#8
I am presently working on a project that sits at the intersection of two of the most important facets of my life: history and the law. Specifically, it deals with the creation of the State of West Virginia and whether that act was unconstitutional (it clearly was).

Here's a brief recitation of the facts.

The Commonwealth of Virginia passed an ordinance of secession in the late spring of 1861. The northwestern part of the state was opposed to it. Consequently, two conventions were held at Wheeling wherein an ordinance of secession for roughly 49 counties of Virginia was passed--these were loyal to the Union. Voters of those counties passed a referendum that adopted that ordinance of secession. A so-called Reorganized Government of Virginia, complete with a governor, lieutenant governor, legislators, etc., was then formed. That Reorganized Government, claiming to speak for the entire Commonwealth, then passed legislation to apply to Congress to admit a new state.

The problem? This is the pertinent language of the US Constitution, which is Article IV, Part 3, Clause 1:

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.

Here, the fiction was that the Reorganized Government of Virginia, purporting to speak for both the new state and the old state, passed the necessary legislation and submitting the application to Congress. It's all very questionable at best. After a great deal of debate, both houses of Congress passed it in the fall of 1862 and sent the bill to Lincoln for signature.

Lincoln, who was a very able lawyer, had real concerns about the constitutionality of the action despite the political expediency of adding an important new Union state; the B&O Railroad passed through the northernmost counties of the new state and was crucial to the Union war effort, and it was very much in the administration's interest to keep it open. Lincoln asked his six cabinet officers--Seward (State), Stanton (War), Bates (Attorney General), Blair (Postmaster General), Chase (Treasury) and Welles (Navy)--to provide him with their written opinions about the constitutionality and expediency of signing the bill. A seventh cabinet member, Caleb B. Smith, had just resigned as Secretary of the Interior to accept an appointment as a federal judge and no successor had been yet appointed, leaving an even number of cabinet officers. Lincoln then wrote his own opinion. He signed the legislation on December 31, 1862, and West Virginia formally joined the Union on June 20, 1863.

Lincoln's written opinion is readily available in the compiled works of Lincoln, although I will provide it here later. The other six are not readily available. After a great deal of diligent searching, I was unable to find them published in their entirety anywhere. I finally found them in the digitized collection of the Abraham Lincoln Papers at the Library of Congress, including transcriptions of them. I had to look through several thousand documents to locate them, but I did do so.

In the next series of posts, I will provide them here verbatim. The story of the creation of West Virginia is a fascinating exercise of realpolitik.
I would hesitate to call it fiction, there was a line of logic leading to West VA. Congress gets to determine which States governments it recognizes and it did.
 
Joined
Apr 4, 2017
Messages
7,758
Location
Denver, CO
#9
It is a question best answered by Congress. Under the circumstances of the ongoing Civil War, Blair's opinion that the State of West Virginia had substantial relation to the population of those counties carries the argument. If the formation of the state had a loyal purpose and not a corrupt purpose, it should be allowed. The case was not clear enough to make fighting with Congress about it worthwhile. The example was never repeated.
 

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#10
In 1871, the Supreme Court of the United States, under the leadership of Chief Justice Salmon P. Chase, decided the case of Virginia v. West Virginia. Because it involved a boundary dispute between states, the case fell within the original jurisdiction of the Supreme Court. At issue were two counties--Berkeley and Jefferson--that were not permitted to vote in the referendum of secession from Virginia because they were occupied by Union troops guarding the B&O Railroad, but which were nevertheless included in the new state of West Virginia even though their citizens had not voted for it. The Reconstruction government of Virginia sued to have those two counties returned to Virginia.

Despite a flagrant conflict of interest, Chase did not recuse himself. He sat on the case for nearly five years to ensure a majority, and the Court found in favor of West Virginia.

This is the Supreme Court decision:

ON original bill to settle the boundary line between the States of Virginia and West Virginia, the case as existing in well-known public history and from the record being thus:

A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called 'ordinance of secession' to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles-'the Pierpont government'- and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia-passed August 20th, 1861, an ordinance by which they ordained that a new State be formed and erected out of the territory included within certain boundaries ( set forth) including within those boundaries of the proposed new State [78 U.S. 39, 41] the counties of, &c. [thirty-nine counties being named]. These counties did not include as within the proposed State the counties of either Greenbrier, Pocahontas, Hampshire, Hardy, Morgan, Berkeley, or Jefferson; but the third section of the ordinance enacted that the convention might change the boundaries described in the first section of the ordinance so as to include within the proposed State the counties of Greenbrier and Pocahontas, or either of them, and also the other counties just above named, or either of them, 'and also all such other counties as lie contiguous to the said boundaries or to the counties named,' if the said counties to be added, or either of them, by a majority of the votes given, & c., should declare their wish to form part of the proposed State, and should elect delegates to the said convention, &c. The name of the new State as ordained by the ordinance was Kanawha.

The convention provided for by the ordinance met in Wheeling, November 26th, 1861, and made a 'Constitution of West Virginia.' Certain counties named, forty-four in number, 'formerly part of the State of Virginia,' it was ordained should be 'included in and form part of the State of West Virginia.' No one of the counties of Pendleton, Hardy, Hampshire, Morgan, Berkeley, or Jefferson, were among these forty-four. The constitution proceeded, in a second section:
  • 'And if a majority of the votes cast at the election or elections held as provided in the schedule hereof, in the district composed of the counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this constitution, the said four counties shall be included in and form part of the State of West Virginia; and if the same shall be so included, and a majority of the votes cast at the said election or elections, in the district composed of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia.'
All through the constitution, as, ex. gr., in the fixing of [78 U.S. 39, 42] senatorial and representative districts, and of judicial circuits, provision was made for the case of these two sets of counties coming in, or of one set coming in without the other. A separate section ordained that--
  • 'Additional territory may be admitted into, and become part of this State, with the consent of the legislature.'
And it provided for the representation in the Senate and House of Delegates of such new territory.

By the terms of this constitution it was to be submitted to a vote of the people on the first Thursday in April, 1862; and on a vote then taken it was ratified by the people of the forty-four counties first named, and by those of Pendleton, Hardy, Hampshire, and Morgan. But no one of the counties of Berkeley, Jefferson, or Frederick, apparently, voted on the matter; owing, as was said by the defendant's counsel at the bar, to the fact, 'that, from the 1st of June, 1861, to the 1st of March, 1862; during which time these proceedings for the formation of a new State were held, those counties were in the possession, and under the absolute control, of the forces of the Confederate States; and that an attempt to hold meetings in them to promote the formation of the new State would have been followed by immediate arrest and imprisonment.'

All this being done, the legislature of Virginia, as reorganized, passed, on the 13th May, 1862, an act, in title and body, thus:

An Act giving the consent of the Legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State.
1. Be it enacted by the General Assembly, That the consent of the legislature of Virginia be, and the same is hereby given to the formation and erection of the State of West Virginia, within the jurisdiction of this State, to include the counties of Hancock, &c. [forty-eight counties being named (being the forty-four first mentioned, with Pendleton, Hardy, Hampshire, and Morgan), but the counties of Berkeley, Jefferson, or Frederick, not being included], according to the boundaries and under the provisions set [78 U.S. 39, 43] forth in the constitution for the said State of West Virginia and the schedule thereto annexed, proposed by the convention which assembled at Wheeling on the 26th day of November, 1861

2. That the consent of the legislature of Virginia be, and the same is hereby given, that the counties of Berkeley, Jefferson, and Frederick, shall be included in and form part of the State of West Virginia WHENEVER the voters of said counties shall ratify and assent to the said constitution, at an election held for the purpose, at such time and under such regulations as the commissioners named in the said schedule may prescribe.

3. That this act shall be transmitted by the Executive to the senators and representatives of this Commonwealth in Congress, together with a certified original of the said constitution and schedule, and the said senators and representatives are hereby requested to use their endeavors to obtain the consent of Congress to the admission of the State of West Virginia into the Union.

4. This act shall be in force from and after its passage.

Under this act, no elections apparently were held; and on the 31st December, 1862,1 Congress passed
An Act for the admission of the State of 'West Virginia' into the Union, and for other purposes.

Whereas, The people inhabiting that portion of Virginia known as West Virginia, did by a convention assembled in the city of Wheeling, on the 26th November, 1861, frame for themselves a constitution with a view of becoming a separate and independent State; and whereas, at a general election held in the counties composing the territory aforesaid, on the 3d of May last, the said constitution was approved and adopted by the qualified voters of the proposed State; and whereas, the legislature of Virginia, by an act passed on the 13th day of May, 1862, did give its consent to the formation of a new State within the jurisdiction of the said State of Virginia, to be known by the name of West Virginia, and to embrace the following named counties, to wit [the forty-eight counties mentioned in the above-quoted Virginia act of May 13, 1862, were here set forth by name, and not including Berkeley or Jefferson]; and whereas, both the convention [78 U.S. 39, 44] and the legislature aforesaid have requested that the new State should be admitted into the Union, and the constitution aforesaid being republican in form, Congress doth hereby consent that the said forty-eight counties may be formed into a separate and independent State; therefore,
Be it enacted, &c., 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 whatsoever, &c.

The act contained a proviso that it should not take effect until after the proclamation of the President of the United States, hereinafter provided for. It then proceeded to recite that it was represented to Congress that since the convention of 26th November, 1861, which framed and proposed the constitution for the said State of West Virginia, the people thereof had expressed a wish to change the 7th section of the 11th article of said constitution, by striking out the same, and inserting the following in its place. The article [on the subject of slavery] was then set forth. It was therefore further enacted that whenever the people of West Virginia should, through their said convention, and by a vote to be taken, &c., make and ratify the change aforesaid, and properly certify the same under the hand of the president of the convention, it should be lawful for the President of the United States to issue his proclamation stating the fact, and that thereupon this act should take effect, and be in force from and after sixty days from the date of the proclamation.

This proclamation President Lincoln did issue on the 20th April, 1863, 2 reciting the act, with, however, a condition annexed; reciting that proof of compliance with the condition, as required by the second section of the act, had been submitted to him, and in pursuance of the act declaring and proclaiming that the act should take effect, and be in force from and after sixty days from his proclamation.
Next in the history came certain acts of the State of Virginia; [78 U.S. 39, 45] among them one passed January 31, 1863, and which, with its title, ran thus:

An Act giving the consent of the State of Virginia to the County of Berkeley being admitted into, and becoming part of, the State of West Virginia.

Whereas, By the constitution for the State of West Virginia, ratified by the people thereof, it is provided that additional territory may be admitted into and become part of said State, with the consent of the legislature thereof, and it is represented to the General Assembly that the people of the county of Berkeley are desirous that said county should be admitted into and become part of the said State of West Virginia: Now, therefore,

1. Be it enacted by the General Assembly, That polls shall be opened and held on the fourth Thursday of May next, at the several places for holding elections in the county of Berkeley, for the purpose of taking the sense of the qualified voters of said county on the question of including said county in the State of West Virginia.

2. The poll-books shall be headed as follows, viz.: 'Shall the county of Berkeley become a part of the State of West Virginia?' and shall contain two columns, one headed 'Aye,' and the other 'No,' and the names of those who vote in favor of said county becoming a part of the State of West Virginia shall be entered in the first column, and the names of those who vote against it shall be entered in the second column.

3. The said polls shall be superintended and conducted according to the laws regulating general elections, and the commissioners superintending the same at the court-house of the said county shall, within six days from the commencement of the said vote, examine and compare the several polls taken in the county, strike therefrom any votes which are by law directed to be stricken from the same, and attach to the polls a list of the votes stricken therefrom, and the reasons for so doing. The result of the polls shall then be ascertained, declared, and certified as follows: The said commissioners shall make out two returns in the following form, or to the following effect:
  • 'We, commissioners for taking the vote of the qualified voters of Berkeley County on the question of including the said county in the State of West Virginia, do hereby certify that polls for that purpose were opened and held the fourth Thursday of May, in the year 1863, within said county, pursuant [78 U.S. 39, 46] to law, and that the following is a true statement of the result as exhibited by the poll-books, viz.: for the county of Berkeley becoming part of the State of West Virginia, _____ votes; and against it _____ votes. Given under our hands this ___ day of _____, 1863;'
which returns, written in words, not in figures, shall be signed by the commissioners; one of the said returns shall be filed in the clerk's office of the said county, and the other shall be sent, under the seal of the secretary of this commonwealth, within ten days from the commencement of the said vote, and the governor of this State, if of opinion that the said vote has been opened and held, and the result ascertained and certified pursuant to law, shall certify the result of the same under the seal of this State, to the governor of the said State of West Virginia.

4. If the governor of this State shall be of opinion that the said polls cannot be safely and properly opened and held in the said county of Berkeley, on the fourth Thursday of May next, he may by proclamation postpone the same, and appoint in the same proclamation, or by one to be hereafter issued, another day for opening and holding the same.

5. If a majority of the votes given at the polls opened and held pursuant to this act be in favor of the said county of Berkeley becoming part of the State of West Virginia, then shall the said county become part of the State of West Virginia when admitted into the same with the consent of the legislature thereof.

6. This act shall be in force from its passage.

Then followed, four days later, on the 4th of February of the same year, 1863, an act relating to the admission of several other counties, including Jefferson, thus:

An Act giving consent to the admission of certain counties into the new State of West Virginia upon certain conditions.

1. Be it enacted by the General Assembly of Virginia, That at the general election on the fourth Thursday of May, 1863, it shall be lawful for the voters of the district composed of the counties of Tazewell, Bland, Giles, and Craig to declare, by their votes, whether said counties shall be annexed to, and become a part of, the new State of West Virginia; also, at the same time, the district composed of the counties of Buchanan, Wise, Russell, Scott, and Lee, to declare, by their votes, whether the counties [78 U.S. 39, 47] of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Alleghany, Bath, and Highland, to declare, by their votes, whether the counties of such last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Frederick and Jefferson, or either of them, to declare by their votes whether the counties of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Clarke, Loudoun, Fairfax, Alexandria, and Prince William, to declare, by their votes, whether the counties of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; also, at the same time, the district composed of the counties of Shenandoah, Warren, Page, and Rockingham, to declare, by their votes, whether the counties of the said last-named district shall be annexed to, and become a part of, the State of West Virginia; and for that purpose there shall be a poll opened at each place of voting in each of said districts, headed 'For annexation,' and 'Against annexation.' And the consent of this General Assembly is hereby given for the annexation to the said State of West Virginia of such of said districts, or of either of them, as a majority of the votes so polled in each district may determine; provided that the legislature of the State of West Virginia shall also consent and agree to the said annexation, after which all jurisdiction of the State of Virginia over the districts so annexed shall cease.

2. It shall be the duty of the governor of the Commonwealth to ascertain and certify the result as other elections are certified.

3. In the event the state of the country will not permit, or from any cause, said election for annexation cannot be fairly held on the day aforesaid, it shall be the duty of the governor of this Commonwealth, as soon as such election can be safely and fairly held, and a full and free expression of the opinion of the people had thereon, to issue his proclamation ordering such election for the purpose aforesaid, and certify the result as aforesaid.

4. This act shall be in force from its passage.

Under these two acts elections of some sort were held [78 U.S. 39, 48] and the governor certified the same to the State of West Virginia, and that State thereupon extended her jurisdiction over the counties of Berkeley and Jefferson, and still maintained it.

Next came an act of the State of Virginia, passed December 5th, 1865:

An Act to repeal the second section of an act passed on the 13th day of May, 1862, entitled An act giving the consent of the legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State; also, repealing the act passed on the 31st day of January, 1863, entitled An act giving the consent of the State of Virginia to the county of Berkeley being admitted into, and becoming part of, the State of West Virginia; also, repealing the act passed on the 4th day of February, 1863, entitled An act giving consent to the admission of certain counties into the new State of West Virginia, upon certain conditions, and withdrawing consent to the transfer of jurisdiction over the several counties in each of said acts mentioned.

Whereas, It sufficiently appears that the conditions prescribed in the several acts of the General Assembly of the restored government of Virginia, intended to give consent to the transfer, from this State to the State of West Virginia, of jurisdiction over the counties of Jefferson and Berkeley, and the several other counties mentioned in the act of February 4th, 1863, hereinafter recited, have not been complied with; and the consent of Congress, as required by the Constitution of the United States, not having been obtained in order to give effect to such transfer, so that the proceedings heretofore had on this subject are simply inchoate, and said consent may properly be withdrawn; and this General Assembly, regarding the contemplated disintegration of the Commonwealth, even if within its constitutional competency, as liable to many objections of the gravest character, not only in respect to the counties of Jefferson and Berkeley, over which the State of West Virginia has prematurely attempted to exercise jurisdiction, but also as to the several other counties above referred to:

1. Be it therefore enacted by the General Assembly of Virginia, That the second section of the act passed on the 13th day of May, 1862, entitled An act giving the consent of the legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State be, and the same is hereby, repealed. [78 U.S. 39, 49]

2. That the act passed on the 31st day of January, 1863, entitled An act giving the consent of the State of Virginia to the county of Berkeley being admitted into and becoming part of the State of West Virginia, be, and the same is, in like manner, hereby repealed.

3. That the act passed February 4th, 1863, entitled An act giving consent to the admission of certain counties into the new State of West Virginia upon certain conditions, be, and the same is, in like manner, hereby repealed.

4. That all consent in any manner heretofore given, or in tended to be given, by the General Assembly of Virginia to the transfer, from its jurisdiction to the jurisdiction of the State of West Virginia, of any of the counties mentioned in either of the above-recited acts, be, and the same is hereby, withdrawn; and all acts, ordinances, and resolutions heretofore passed purporting to give such consent are hereby repealed.

5. This act shall be in force from and after the passage thereof.

On the 10th of March, 1866,3 Congress passed a Joint Resolution giving the consent of Congress to the transfer of the Counties of Berkeley and Jefferson to the State of West Virginia.

Be it resolved, &c., That Congress hereby recognizes the transfer of the counties of Berkeley and Jefferson from the State of Virginia to West Virginia and consents thereto.

In this state of things, the Commonwealth of Virginia brought her bill in equity against the State of West Virginia in this court on the ground of its original jurisdiction of controversies between States under the Constitution, in which it was alleged that such a controversy had arisen between those States in regard to their boundary, and especially as to the question whether the counties of Berkeley and Jefferson had become part of the State of West Virginia or were part of and within the jurisdiction of the Commonwealth of Virginia; and the prayer of the bill was that it might be established by the decree of this court that those [78 U.S. 39, 50] counties were part of the Commonwealth of Virginia, and that the boundary line between the two States should be ascertained, established, and made certain, so as to include the counties mentioned as part of the territory and within the jurisdiction of the State of Virginia.

The stating part of the bill was largely composed of the substance of four acts of the General Assembly of the Commonwealth, already presented at large, in the statement, copies of them being made exhibits and filed with the bill.

The bill, in addition to the substance of these statutes, alleged that no action whatever was had or taken under the second section of the act of 1862,4 but that afterwards the State of West Virginia was admitted into the Union, under an act of Congress and proclamation of the President, without including either the counties of Berkeley, Jefferson, or Frederick.

It further alleged that an attempt was made to take the vote in the counties of Jefferson and Berkeley at the time mentioned in the acts of January 31st, and February 4th, 1863,5 but that, owing to the state of the country at that time, no fair vote could be taken; that no polls were opened at any considerable number of the voting places; that the vote taken was not a fair and full expression; all of which was well known to the persons who procured the certificate of such election. It also alleged that it having been falsely and fraudulently suggested, and falsely and untruly made to appear to the governor of the Commonwealth, that a large majority of the votes was given in favor of annexation, he certified the same to the State of West Virginia, and that thereupon, without the consent of Congress, that State extended her jurisdiction over the said counties of Berkeley and Jefferson, and over the inhabitants thereof, and still maintained the same.

The State of Virginia, of course, in coming before this court with this case, relied upon that clause of the Federal Constitution which ordains that 'no State shall, without the assent of Congress, enter into any agreement or compact with [78 U.S. 39, 51] any other State,' and that one also which ordains that 'the judicial power shall extend . . . to controversies between two or more States.'
To the bill thus filed the State of West Virginia appeared and put in a general demurrer. It was not denied that West Virginia had from the beginning continued her assent to receive these two counties.

The case was elaborately argued at December Term, 1866, by Messrs. B. R. Curtis and A. Hunter, in support of the bill, and by Messrs. B. Stanton and Reverdy Johnson, in support of the demurrer; and again at this term by Mr. Taylor, Attorney-General of Virginia, Messrs. B. R. Curtis, and A. Hunter, on the former side, and Messrs. B. Stanton, C. J. Faulkner, and Reverdy Johnson, contra.

In support of the bill it was argued, among other things, that a State was incapable under the Constitution of making any contract with another State; that States might negotiate with each other, might express a mutual willingness to do the same thing, but that this was all; that Congress by the act of 1862, assenting to the admission of a State composed of but forty-eight counties, had not given its assent to a State having in it the counties of Berkeley and Jefferson; that Congress had never assented to the admission of those counties until its joint resolution of 1866; that previous to that time Virginia had withdrawn, as she had a right to do, her once offered assent to what Congress could alone complete; that the transfer could exist only by the concurrent assent of all these parties; that therefore no transfer had been made by the joint resolution. Even if this were not so, and if fair elections under the acts of 1863 would be sufficient, the allegations of the bill as to the character of the elections relied on-allegations of partial and fraudulent elections-which allegations on a demurrer were to be taken as true-concluded the matter; for if no elections had ever taken place, then even the condition upon which as between the two States the counties were to pass to West Virginia, had never taken effect. [78 U.S. 39, 52] In support of the demurrer the principal points were, that although this court had jurisdiction over 'controversies between two States,' it was only over controversies in which some question in its nature judicial was involved. This court could not settle a controversy of arms, or force, such as came near arising between Ohio and Michigan, on the matter of their boundary; nor would it settle a political one. Georgia v. Stanton6 decided that. Now, the main question here involved was the political jurisdiction over two counties, and their inhabitants. There was no land that Virginia claims as her individual land. The question then was a political question; one for Congress. Of the disputed questions of boundary which had arisen in this country, Congress had settled most. 7 In the few cases, where this court had acted, including the case of Rhode Island v. Massachusetts,8 where there was an old colonial agreement of 1710, there had always been some propor subject of judicial action involved; a question of the specific performance of contract, a question of property, or the like. Even in the great English case of Penn v. Lord Baltimore, A. D. 1750,9 before Lord Hardwicke, to settle the lines between Delaware and Maryland, there was an agreement for settling the boundary; a proper head of equitable jurisdiction. The dicta and much of the argument of Baldwin, J., who gave the opinion in the Rhode Island case, were unnecessary to the judgment. Other cases have followed that.

In reply to the other side it was contended that the boundary, as contemplated both by the State of Virginia and the proposed State, was not confined to the limits specifically stated, but was capable of being opened, to the extent provided for, by the two bodies; that this capacity was inherent in the State as constituted; that Congress in 1862 received the State with this capacity; that the right of voting was subsequently exercised by the two counties under the Virginia acts of 1863; that the condition thus became executed, and the two counties transferred to the State of West Virginia; [78 U.S. 39, 53] that the court could not go behind the official returns of the vote; and, finally, that the purpose of one of the clauses of the Constitution, relied on in the argument of the other side, was not to prevent the States from settling their own boundaries so far as merely affected their relations to each other, but to guard against the derangement of their Federal relations with the other States of the Union, and the Federal government, which might be injuriously affected if the contracting parties might act upon their boundaries at pleasure; and that in this case the boundary having been settled by themselves, between Virginia and the new body to which she was in 1862 assisting to give existence, Virginia could not subsequently revoke her assent against the wish of the other party.
 

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#11
Mr. Justice MILLER delivered the opinion of the court.

The first proposition on which counsel insist, in support of the demurrer is, that this court has no jurisdiction of the case, because it involves the consideration of questions purely political; that is to say, that the main question to be decided is the conflicting claims of the two States to the exercise of political jurisdiction and sovereignty over the territory and inhabitants of the two counties which are the subject of dispute.

This proposition cannot be sustained without reversing the settled course of decision in this court and overturning the principles on which reveral well-considered cases have been decided. Without entering into the argument by which those decisions are supported, we shall content ourselves with showing what is the established doctrine of the court.

In the case of Rhode Island v. Massachusetts,10 this question was raised, and Chief Justice Taney dissented from the judgment of the court by which the jurisdiction was affirmed, on the precise ground taken here. The subject is elaborately discussed in the opinion of the court, delivered [78 U.S. 39, 54] by Mr. Justice Baldwin, and the jurisdiction, we think, satisfactorily sustained. That case, in all important features, was like this. It involved a question of boundary and of the jurisdiction of the States over the territory and people of the disputed region. The bill of Rhode Island denied that she had ever consented to a line run by certain commissioners. The plea of Massachusetts averred that she had consented. A question of fraudulent representation in obtaining certain action of the State of Rhode Island was also made in the pleadings.

It is said in that opinion that, 'title, jurisdiction, sovereignty, are (therefore) dependent questions, necessarily settled when boundary is ascertained, which being the line of territory, is the line of power over it, so that great as questions of jurisdiction and sovereignty may be, they depend on facts.' And it is held that as the court has jurisdiction of the question of boundary, the fact that its decision on that subject settles the territorial limits of the jurisdiction of the States, does not defeat the jurisdiction of the court.

The next reported case, is that of Missouri v. Iowa,11 in which the complaint is, that the State of Missouri is unjustly ousted of her jurisdiction, and obstructed from governing a part of her territory on her northern boundary, about ten miles wide, by the State of Iowa, which exercises such jurisdiction, contrary to the rights of the State of Missouri, and in defiance of her authority. Although the jurisdictional question is thus broadly stated, no objection on this point was raised, and the opinion which settled the line in dispute, delivered by Judge Catron, declares that it was the unanimous opinion of all the judges of the court. The Chief Justice must, therefore, have abandoned his dissenting doctrine in the previous case.

That this is so is made still more clear by the opinion of the court delivered by himself in the case of Florida v. Georgia,12 in which he says that 'it is settled, by repeated decisions, that a question of boundary between States, is [78 U.S. 39, 55] within the jurisdiction conferred by the Constitution on this court.' A subsequent expression in that opinion shows that he understood this as including the political question, for he says 'that a question of boundary between States is necessarily a political question to be settled by compact made by the political departments of the government. . . . But under our form of government a boundary between two States may become a judicial question to be decided by this court.'

In the subsequent case of Alabama v. Georgia,13 all the judges concurred, and no question of the jurisdiction was raised.

We consider, therefore, the established doctrine of this court to be, that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated, because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render, affects the territorial limits of the political jurisdiction and sovereignty of the States which are parties to the proceeding.

In the further consideration of the question raised by the demurrer we shall proceed upon the ground, which we shall not stop to defend, that the right of West Virginia to jurisdiction over the counties in question, can only be maintained by a valid agreement between the two States on that subject, and that to the validity of such an agreement, the consent of Congress is essential. And we do not deem it necessary in this discussion to inquire whether such an agreement may possess a certain binding force between the States that are parties to it, for any purpose, before such consent is obtained.

As there seems to be no question, then, that the State of West Virginia, from the time she first proposed, in the constitution under which she became a State, to receive these [78 U.S. 39, 56] counties, has ever since adhered to, and continued her assent to that proposition, three questions remain to be considered.

1. Did the State of Virginia ever give a consent to this proposition which became obligatory on her?

2. Did the Congress give such consent as rendered the agreement valid?

3. If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State.
To determine these questions it will be necessary to examine into the history of the creation of the State of West Virginia, so far as this is to be learned from legislation, of which we can take judicial notice.

The first step in this matter was taken by the organic convention of the State of Virginia, which in 1861 reorganized that State, and formed for it what was known as the Pierpont government-an organization which was recognized by the President and by Congress as the State of Virginia, and which passed the four statutes set forth as exhibits in the bill of complainant. This convention passed an ordinance, August 30, 1861, calling a convention of delegates from certain designated counties of the State of Virginia to form a constitution for a new State to be called Kanawha.

The third section of that ordinance provides that the convention when assembled may change the boundaries of the new State as described in the first section, so as to include the 'counties of Greenbrier and Pocahontas, or either of them, and also the counties of Hampshire, Hardy, Morgan, Berkeley, and Jefferson, or either of them,' if the said counties, or either of them, shall declare their wish, by a majority of votes given, and shall elect delegates to the said convention.

It is thus seen that in the very first step to organize the new State, the old State of Virginia recognized the peculiar condition of the two counties now in question, and provided that either of them should become part of the new State upon the [78 U.S. 39, 57] majority of the votes polled being found to be in favor of that proposition.

The convention authorized by this ordinance assembled in Wheeling, November 26, 1861. It does not appear that either Berkeley or Jefferson was represented, but it framed a constitution which, after naming the counties composing the new State in the first section of the first article, provided, by the second section, that if a majority of the votes cast at an election to be held for that purpose in the district composed of the counties of Berkeley, Jefferson, and Frederick, should be in favor of adopting the constitution, they should form a part of the State of West Virginia. That constitution also provided for representation of these counties in the Senate and House of Delegates if they elected to become a part of the new State, and that they should in that event constitute the eleventh judicial district. A distinct section also declares, in general terms, that additional territory may be admitted into and become part of the State with the consent of the legislature.

The schedule of this constitution arranged for its submission to a vote of the people on the first Thursday in April, 1862.

This vote was taken and the constitution ratified by the people; but it does not appear that either of the three counties of Jefferson, Berkeley, and Frederick, took any vote at that time.

Next in order of this legislative history is the act of the Virginia legislature of May 13, 1862, passed shortly after the vote above mentioned had been taken. 14 This act gives the consent of the State of Virginia to the formation of the State of West Virginia out of certain counties named under the provisions set forth in its constitution, and by its second section it is declared that the consent of the legislature of Virginia is also given that the counties of Berkeley, Jefferson, and Frederick, shall be included in said State 'whenever the voters of said counties shall ratify and assent to said constitution, [78 U.S. 39, 58] at an election held for that purpose, at such time and under such regulations as the commissioners named in the said schedule may prescribe.'

This act was directed to be sent to the senators and representatives of Virginia in Congress, with instructions to obtain the consent of Congress to the admission of the State of West Virginia into the Union.

Accordingly on the 31st of December, 1862, Congress acted on these matters, and reciting the proceedings of the Convention of West Virginia, and that both that convention and the legislature of the State of Virginia had requested that the new State should be admitted into the Union, it passed an act for the admission of said State, with certain provisions not material to our purpose.
Let us pause a moment and consider what is the fair and reasonable inference to be drawn from the actions of the State of Virginia, the Convention of West Virginia, and the Congress of the United States in regard to these counties.

The State of Virginia, in the ordinance which originated the formation of the new State, recognized something peculiar in the condition of these two counties, and some others. It gave them the option of sending delegates to the constitutional convention, and gave that convention the option to receive them. For some reason not developed in the legislative history of the matter these counties took no action on the subject. The convention, willing to accept them, and hoping they might still express their wish to come in, made provision in the new constitution that they might do so, and for their place in the legislative bodies, and in the judicial system, and inserted a general proposition for accession of territory to the new State. The State of Virginia, in expressing her satisfaction with the new State and its constitution, and her consent to its formation, by a special section, refers again to the counties of Berkeley, Jefferson, and Frederick, and enacts that whenever they shall, by a majority vote, assent to the constitution of the new State, they may become part thereof; and the legislature sends this statute to Congress with a request that it will admit the new [78 U.S. 39, 59] State into the Union. Now, we have here, on two different occasions, the emphatic legislative proposition of Virginia that these counties might become part of West Virginia; and we have the constitution of West Virginia agreeing to accept them and providing for their place in the new- born State. There was one condition, however, imposed by Virginia to her parting with them, and one condition made by West Virginia to her receiving them, and that was the same, namely, the assent of the majority of the votes of the counties to the transfer.
It seems to us that here was an agreement between the old State and the new that these counties should become part of the latter, subject to that condition alone. Up to this time no vote had been taken in these counties; probably none could be taken under any but a hostile government. At all events, the bill alleges that none was taken on the proposition of May, 1862, of the Virginia legislature. If an agreement means the mutual consent of the parties to a given proposition, this was an agreement between these States for the transfer of these counties on the condition named. The condition was one which could be ascertained or carried out at any time; and this was clearly the idea of Virginia when she declared that whenever the voters of said counties should ratify and consent to the constitution they should become part of the State; and her subsequent legislation making special provision for taking the vote on this subject, as shown by the acts of January 31st and February 4th, 1863, is in perfect accord with this idea, and shows her good faith in carrying into effect the agreement.

2. But did Congress consent to this agreement?

Unless it can be shown that the consent of Congress, under that clause of the Constitution which forbids agreements between States without it, can only be given in the form of an express and formal statement of every proposition of the agreement, and of its consent thereto, we must hold that the consent of that body was given to this agreement. [78 U.S. 39, 60] The attention of Congress was called to the subject by the very short statute of the State of Virginia requesting the admission of the new State into the Union, consisting of but three sections,15 one of which was entirely devoted to giving consent that these two counties and the county of Frederick might accompany the others, if they desired to do so. The constitution of the new State was literally cumbered with the various provisions for receiving these counties if they chose to come, and in two or three forms express consent is there given to this addition to the State. The subject of the relation of these counties to the others, as set forth in the ordinance for calling the convention, in the constitution framed by that convention, and in the act of the Virginia legislature, must have received the attentive consideration of Congress. To hold otherwise is to suppose that the act for the admission of the new State passed without any due or serious consideration. But the substance of this act clearly repels any such inference; for it is seen that the constitution of the new State was, in one particular at least, unacceptable to Congress, and the act only admits the State into the Union when that feature shall be changed by the popular vote. If any other part of the constitution had failed to meet the approbation of Congress, especially so important a part as the proposition for a future change of boundary between the new and the old State, it is reasonable to suppose that its dissent would have been expressed in some shape, especially as the refusal to permit those counties to attach themselves to the new State would not have endangered its formation and admission without them.

It is, therefore, an inference clear and satisfactory that Congress by that statute, intended to consent to the admission of the State with the contingent boundaries provided for in its constitution and in the statute of Virginia, which prayed for its admission on those terms, and that in so doing it necessarily consented to the agreement of those States on that subject. [78 U.S. 39, 61] There was then a valid agreement between the two States consented to by Congress, which agreement made the accession of these counties dependent on the result of a popular vote in favor of that proposition.

3. But the Commonwealth of Virginia insists that no such vote was ever given; and we must inquire whether the facts alleged in the bill are such as to require an issue to be made on that question by the answer of the defendant.

The bill alleges the failure of the counties to take any action under the act of May, 1862, and that on the 31st of January and the 4th of February thereafter the two other acts we have mentioned were passed to enable such vote to be taken. These statutes provide very minutely for the taking of this vote under the authority of the State of Virginia; and, among other things, it is enacted that the governor shall ascertain the result, and, if he shall be of opinion that said vote has been opened and held and the result ascertained and certified pursuant to law, he shall certify that result under the eeal of the State to the governor of West Virginia; and if a majority of the votes given at the polls were in favor of the proposition, then the counties became part of said State. He was also authorized to postpone the time of voting if he should be of opinion that a fair vote could not be taken on the day mentioned in these acts.

Though this language is taken mainly from the statute which refers to Berkeley County, we consider the legal effect of the other statute to be the same.

These statutes were in no way essential to evidence the consent of Virginia to the original agreement, but were intended by her legislature to provide the means of ascertaining the wishes of the voters of these counties, that being the condition of the agreement on which the transfer of the counties depended.

The State thus showed her good faith to that agreement, and undertook in her own way and by her own officers to ascertain the fact in question. [78 U.S. 39, 62] The legislature might have required the vote to have been reported to it, and assumed the duty of ascertaining and making known the result to West Virginia; but it delegated that power to the governor. It invested him with full discretion as to the time when the vote should be taken, and made his opinion and his decision conclusive as to the result. The vote was taken under these statutes, and certified to the governor. He was of opinion that the result was in favor of the transfer. He certified this fact under the seal of the State to the State of West Virginia, and the legislature of that State immediately assumed jurisdiction over the two counties, provided for their admission, and they have been a part of that State ever since.

Do the allegations of the bill authorize us to go behind all this and inquire as to what took place at this voting? To inquire how many votes were actually cast? How many of the men who had once been voters in these counties were then in the rebel army? Or had been there and were thus disfranchised? For all these and many more embarrassing questions must arise if the defendant is required to take issue on the allegations of the bill on this subject.

These allegations are indefinite and vague in this regard. It is charged that no fair vote was taken; but no act of unfairness is alleged. That no opportunity was afforded for a fair vote. That the governor was misled and deceived by the fraud of those who made him believe so. This is the substance of what is alleged. No one is charged specifically with the fraud. No particular act of fraud is stated. The governor is impliedly said to have acted in good faith. No charge of any kind of moral or legal wrong is made against the defendant, the State of West Virginia.

But, waiving these defects in the bill, we are of opinion that the action of the governor is conclusive of the vote as between the States of Virginia and West Virginia. He was in legal effect the State of Virginia in this matter. In addition to his position as executive head of the State, the legislature delegated to him all its own power in the premises. It vested him with large contro as to the time of taking the [78 U.S. 39, 63] vote, and it made his opinion of the result the condition of final action. It rested of its own accord the whole question on his judgment and in his hands. In a matter where that action was to be the foundation on which another sovereign State was to act-a matter which involved the delicate question of permanent boundary between the States and jurisdiction over a large population-a matter in which she took into her own hands the ascertainment of the fact on which these important propositions were by contract made to depend, she must be bound by what she had done. She can have no right, years after all this has been settled, to come into a court of chancery to charge that her own conduct has been a wrong and a fraud; that her own subordinate agents have misled her governor, and that her solemn act transferring these counties shall be set aside, against the will of the State of West Virginia, and without consulting the wishes of the people of those counties.

This view of the subject renders it unnecessary to inquire into the effect of the act of 1865 withdrawing the consent of the State of Virginia, or the act of Congress of 1866 giving consent, after the attempt of that State to withdraw hers.

The demurrer to the bill is therefore sustained, and the

BILL MUST BE DISMISSED.

Mr. Justice DAVIS, with whom concurred CLIFFORD and FIELD, JJ., dissenting.

Being unable to agree with the majority of the court in its judgment in this case, I will briefly state the grounds of my dissent.
There is no difference of opinion between us in relation to the construction of the provision of the Constitution which affects the question at issue. We all agree that until the consent of Congress is given, there can be no valid compact or agreement between States. And that, although the point of time when Congress may give its consent is not material, yet, when it is given, there must be a reciprocal and concurrent consent of the three parties to the contract. Without [78 U.S. 39, 64] this, it is not a completed compact. If, therefore, Virginia withdrew its assent before the consent of Congress was given, there was no compact within the meaning of the Constitution.

To my mind nothing is clearer, than that Congress never did undertake to give its consent to the transfer of Berkeley and Jefferson counties to the State of West Virginia until March 2, 1866. If so, the consent came too late, because the legislature of Virginia had, on the fifth day of December, 1865, withdrawn its assent to the proposed cession of these two counties. This withdrawal was in ample time, as it was before the proposal of the State had become operative as a concluded compact, and the bill (in my judgment) shows that Virginia had sufficient reasons for recalling its proposition to part with the territory embraced within these counties.

But, it is maintained in the opinion of the court that Congress did give its consent to the transfer of these counties by Virginia to West Virginia, when it admitted West Virginia into the Union. The argument of the opinion is, that Congress, by admitting the new State, gave its assent to that provision of the new constitution which looked to the acquisition of these counties, and that if the people of these counties have since voted to become part of the State of West Virginia, this action is within the consent of Congress. I most respectfully submit that the facts of the case (about which there is no dispute), do not justify the argument which is attempted to be drawn from them.

The second section of the first article of the constitution of West Virginia was merely a proposal addressed to the people of two distinct districts, on which they were invited to act. The people of one district ( Pendleton, Hardy, Hampshire, and Morgan) accepted the proposal. The people of the other district (Jefferson, Berkeley, and Frederick) rejected it.

In this state of things, the first district became a part of the new State, so far as its constitution could make it so, and the legislature of Virginia included it in its assent, and [78 U.S. 39, 65] Congress included it in its admission to the Union. But neither the constitution of West Virginia, nor the assent of the legislature of Virginia, nor the consent of Congress, had any application whatever to the second district. For though the second section of the first article of the new constitution had proposed to include it, the proposal was accompanied with conditions which were not complied with; and when that constitution was presented to Congress for approval, the proposal had already been rejected, and had no significance or effect whatever
 

Jimklag

Lt. Colonel
Silver Patron
Joined
Mar 3, 2017
Messages
9,911
Location
Chicagoland
#12
@Eric Wittenberg , I think Lincoln's last line just about covers it. I believe the admission of West Virginia into the Union is expedient. The expediency lends all the shell games with the state legislature(s) of Virginia some legitimacy. @jgoodguy is right. it is 100% the purview of Congress to recognize a state's legislature for any issue where the relationship of states/territories to the Federal government is concerned. That pretty much settles it.
 
Last edited:

Eric Wittenberg

2nd Lieutenant
Joined
Jun 2, 2013
Messages
3,306
Location
Columbus, OH
#13
@Eric Wittenberg , I thinks Lincoln's last line just about covers it. I believe the admission of West Virginia into the Union is expedient. The expediency lends all the shell games with the state legislature(s) of Virginia some legitimacy. @jgoodguy is right. it is 100% the purview of Congress to recognize a state's legislature for any issue where the relationship of states/territories to the Federal government is concerned. That pretty much settles it.
There is no question that the entire thing was unconstitutional from beginning to end. But the fact that it was politically expedient clearly made it happen. Therein lies Lincoln's brilliance as a politician. I want to get it right, so later, when I'm home and have access to it, I will share Lincoln's own words about this from a letter he wrote to a friend.
 

Jimklag

Lt. Colonel
Silver Patron
Joined
Mar 3, 2017
Messages
9,911
Location
Chicagoland
#14
There is no question that the entire thing was unconstitutional from beginning to end. But the fact that it was politically expedient clearly made it happen. Therein lies Lincoln's brilliance as a politician. I want to get it right, so later, when I'm home and have access to it, I will share Lincoln's own words about this from a letter he wrote to a friend.
Sounds like you are on the right track, Eric. I assume this will end in a book that I would love to read. I am no lawyer, but I love reading about the relationship of historical events to the law. Legal thrillers are also a weakness of mine.
 
Joined
Oct 31, 2017
Messages
522
Location
Bountiful
#15
Here, the fiction was that the Reorganized Government of Virginia, purporting to speak for both the new state and the old state, passed the necessary legislation and submitting the application to Congress. It's all very questionable at best.
I'm certainly not an attorney but it seems to me that common sense says you can't have your cake and eat it too. If Virginia seceded from the United States, then they gave up their rights in their old state and had no more say in any matter concerning Virginia as a US state. How can one argue that Virginia decided to secede yet still use US law as a basis to argue that the new state of West Virginia was not legally able to speak for the old state? It seems to me "old Virginia" would have had to have won the war for any legitimacy.
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
#16
I'm certainly not an attorney but it seems to me that common sense says you can't have your cake and eat it too. If Virginia seceded from the United States, then they gave up their rights in their old state and had no more say in any matter concerning Virginia as a US state. How can one argue that Virginia decided to secede yet still use US law as a basis to argue that the new state of West Virginia was not legally able to speak for the old state? It seems to me "old Virginia" would have had to have won the war for any legitimacy.
I agree, and not the first time a government recognized loyalists as the true government of a breakaway state/province.
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
#18
IMHO the use of 'legal fiction' is a problem. We have Luther v Borden and Texas v White ruling that Congress gets to recognized States' governments with the SCOTUS decisions upholding the creation of West Virginia suggesting something different.
 

James N.

Lt. Colonel
Forum Host
Civil War Photo Contest
Annual Winner
Featured Book Reviewer
Joined
Feb 23, 2013
Messages
10,723
Location
East Texas
#19
I'm certainly not an attorney but it seems to me that common sense says you can't have your cake and eat it too. If Virginia seceded from the United States, then they gave up their rights in their old state and had no more say in any matter concerning Virginia as a US state. How can one argue that Virginia decided to secede yet still use US law as a basis to argue that the new state of West Virginia was not legally able to speak for the old state? It seems to me "old Virginia" would have had to have won the war for any legitimacy.
The trouble with this line of reasoning is that from the start Lincoln's position was that secession was impossible under the constitution and therefore never happened!
 



(Membership has it privileges! To remove this ad: Register NOW!)
Top