Restricted Debate The creation of West Virginia

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#21
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!
Since Virginia never seceded, all Congress had to do was pick which citizens constituted the government of Virginia. The basis of separation was that the western counties had wanted out of Virginia for a considerable time, and did not want to be part of united Virginia, if the US won the Civil War.
 

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thomas aagaard

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#22
Have not read all the text, but plan to tomorrow.
Anyway, Having more than one government of the same area... like a government in exile is not unknown.
The federal government in this case have the right to recognize the loyal government over the rebellious one.

That State government then gave its consent to the partition of the state and so did the other states in the union, with their elected people in congress voting on the issue.

To me that give us a process that is done within the letter of the law (Constitution) ... but not the spirit of the law.
 

jgoodguy

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#23
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!
The trouble with your reasoning is that states seceded, the war happened, the Confederacy failed, and the Union was restored.
Let us agree that rebels held most of VA territory. The US recognized loyalists in the territory not held by rebels as the true government of VA.
 

jgoodguy

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#24
Have not read all the text, but plan to tomorrow.
Anyway, Having more than one government of the same area... like a government in exile is not unknown.
The federal government in this case have the right to recognize the loyal government over the rebellious one.

That State government then gave its consent to the partition of the state and so did the other states in the union, with their elected people in congress voting on the issue.

To me that give us a process that is done within the letter of the law (Constitution) ... but not the spirit of the law.
Hard to determine the spirit of the law during a rebellion.
 

James N.

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#25
The trouble with your reasoning is that states seceded, the war happened, the Confederacy failed, and the Union was restored.
States attempted to secede, allegedly an illegal act according to the Executive, and war indeed happened as they were prevented from doing so; but there was no restoration because nothing had happened! (I realize this sounds silly, especially in light of the truth of the matter, but Lincoln's attitude caused many tortuous things to occur such as his refusal to treat with Confederate envoys, lest it appear that he was somehow recognizing their right to secede in the first place.)
 

Eric Wittenberg

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#26
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.
It will, yes. I'm doing it with a friend who is the Chief Judge of the United States District Court for the Southern District of Ohio. We just had lunch today to discuss the project.
 

James N.

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#27
It will, yes. I'm doing it with a friend who is the Chief Judge of the United States District Court for the Southern District of Ohio. We just had lunch today to discuss the project.
Legal matters like this fail to interest me in the way battles and leaders always have, but I've also always considered the wartime creation of W. Va. to be hypocritical at best and downright illegal at worst.
 

Eric Wittenberg

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#29
Legal matters like this fail to interest me in the way battles and leaders always have, but I've also always considered the wartime creation of W. Va. to be hypocritical at best and downright illegal at worst.
That's why there are different flavors of ice cream, I suppose. That way, everyone gets to study things that interest them.
 

James N.

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#30
All fair in love and war. As SCOTUS says it is legal it must be legal.
As I seem to recall, the SCOTUS also said that Dred Scott was NOT a citizen of the U.S. and therefore could not sue for his freedom in court.
 
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archieclement

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#31
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.

Not sure how it can be a question best left to Congress, when the Constitution clearly gave the authority to the parent state, and specifically not congress.

Its best left to Congress if one views the US Constitution merely toilet paper to be used by congress...…..The purpose of the Constitution was to define who had what authority, and this is a case were it clearly went to state to have the consent or denial.
 

ErnieMac

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#34
The subject is one which has been of interest to me for a long time. A number of my ancestor's were from Marshall County in the western panhandle and served in the 3rd West Virginia Mounted Infantry, which morphed into the 6th West Virginia Cavalry. Agree with a good number of the posters that the issue was unconstitutional, but expedient. In much the same way Nevada was admitted just in time for the 1864 presidential election by creative means that were also expedient. I'm looking forward to your final product.
 
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#36
Section 3
1: 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 Legislatures of the States concerned as well as of the Congress.


It seems the founders and subsequent generations considered Congress was the American equivalent of Parliament, and there was no going back to an American form of Monarchy.
 

16thVA

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#37
I think Thaddeus Stevens expressed it best:

Senator Thaddeus Stevens, National Union Convention, Baltimore, June 7, 1864

"It was proposed to admit her upon the ground that Old Virginia had given her consent, and that new West Virginia should come in with that consent. I expressly said that I hoped nobody would consider me so ignorant as to suppose that Virginia was divided according to the principles of the Constitution ; but that West Virginia, being conquered by our armies, according to the laws of war we had a right to do with the conquered territory just as we pleased [applause] ; and I voted for her admission, disclaiming the idea that the division was according to the forms of the Constitution, but under the laws of war and the laws of conquest."
 

jgoodguy

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#38
I think Thaddeus Stevens expressed it best:

Senator Thaddeus Stevens, National Union Convention, Baltimore, June 7, 1864

"It was proposed to admit her upon the ground that Old Virginia had given her consent, and that new West Virginia should come in with that consent. I expressly said that I hoped nobody would consider me so ignorant as to suppose that Virginia was divided according to the principles of the Constitution ; but that West Virginia, being conquered by our armies, according to the laws of war we had a right to do with the conquered territory just as we pleased [applause] ; and I voted for her admission, disclaiming the idea that the division was according to the forms of the Constitution, but under the laws of war and the laws of conquest."
Although really, the loyalists held the territory and no one conquered it, but old Thaddeus had a way with words.
 

16thVA

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#39
Actually, JG, they didn't really hold it, only on paper. This is what John Jay Jackson, a Unionist from Parkersburg, said of the Wheeling government in 1862.

029392_john_jacksonp_large.jpg


"Is it not obvious that it is only the bayonets of the United States that can give it any respectability as a legislative body-nay, that can even rescue it from contempt? Is it not clearly a usurped Government- a Government founded in force?"

"I say nothing about the time of this division, in the midst of revolution, the fact that the body acting upon it does not represent one-fifth of the State-the further fact that the delegates do not represent one-third of their constituents-the fact that the portion of the State contemplated to be erected into the new State, is in the armed occupation of the United States, and a large portion, and I believe a majority of the voters are afraid to go to the polls-the fact that the boundaries of the proposed state are not only to restricted, but are repugnant to the almost unanimous wishes of some of the included counties-the fact that the Convention as a body is not composed of those who have heretofore had the confidence of the people, and are not such as would be selected by them in a time of peace and free and untrammeled action."
 

David Knight

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#40
This is all very interesting and clearly if this was done in peacetime the creation of West Virginia would never have happened. The Constitution was not written to be a 'catch all' especially in a civil war with states claiming that they have by unilateral left the Union.

Politics is described as "the art of the possible" and the agreement of a state that has voluntarily left the Union is definately not possilbe. Therefore the loyal counties of NW Virginia were always going to be admitted giving that the Union armed forces also occupied the terrritory.

This a case where reality was always going to win over a constitution that was never going to be capable of being able to resolve a real world issue rather than in the theoretical legal world that did not exist in 1861-1865.
 



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