Restricted The creation of West Virginia

Eric Wittenberg

1st Lieutenant
Keeper of the Scales
Joined
Jun 2, 2013
Location
Columbus, OH
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.
 
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