A Dreadful Precedent

The American Civil War spawned a new state in a way that the founding fathers could never have imagined.

It was all so unconventional; a good many believed unconstitutional and illegal. Legal scholars today still debate whether those who acted had the moral and legal authority to do so. Under normal circumstances they clearly would not have, but the circumstances at the time were anything but normal. The division had its roots four score and seven years earlier, but it had taken a great civil war for the split to be made official. On the Twentieth of June, 1863, the region which would forever forward be known as West Virginia formally seceded from its parent state of Virginia, entering the Union as the thirty-fifth state.

The seeds of dissent had been planted when the constitution for the Commonwealth of Virginia was adopted in 1776. The issue was voting rights. Only white males who owned at least twenty-five acres of improved lands or fifty acres of unimproved lands were afforded the right to vote, a provision that favored the large landowners in the east and discriminated against small landowners in the more mountainous west. There had been calls for separation as early as 1829 when wording proposed for a revised state constitution upheld the controversial land ownership provision. Much to the chagrin of their western cousins, the eastern majority ratified the updated constitution, ignoring the fact that the westerners voted against the measure by a margin of six to one.

The injury was greatly alleviated when the requisite land ownership provision was struck in 1851, and all white males twenty-one years of age and older were granted the right to vote, but resurfaced when talk of secession from the Union over the states’ rights issue came to the forefront. It was apparent to most that the real issue was the right to own slaves, and there were relatively few slave owners west of the Allegheny and Shenandoah Mountains. Residents of the western counties saw no valid reason for Virginia to secede from the Union. Two-thirds of the western delegates attending the state’s 1861 Secession Convention voted against secession, ultimately walking out of the session vowing that their counties would subsequently secede from the state of Virginia and remain in the Union.

And this is when matters became complicated and confusing, the lines between what was legal, what was constitutional, and who had proper authority becoming blurred. The resolution to secede from the Union prepared at Virginia’s Secession Convention clearly required the approval of the state’s voters through a special election before secession could be made official. However, in his haste to move forward, Virginia’s governor initiated measures to join the Confederacy about a month before the special election, completing the process and formally joining the Confederacy about two weeks before the voters had a chance to cast their ballots. It would later be argued that, because the state’s secession preceded the special election, it did not reflect the will of the people, rather that these were the actions of a rogue government taken over by rebels bent on insurrection.

Meanwhile, representatives of the western counties convened separately and prepared an ordinance repudiating the state’s secession from the Union, asserting that the offices of the state government in Richmond had been vacated as a result of the declared secession. Subsequently, their convention established what they claimed to be the true “Restored Government” of Virginia, actions which were later endorsed through a general referendum of voters in the western counties. Because the government in Richmond had officially joined the Confederacy prior to its special election, President Lincoln surmised that it had acted without the support of its electorate, justification to recognize the Restored Government as the true and rightful state government. The Restored Government was even allowed to send two representatives and two senators to Washington to replace those who had vacated their seats when Virginia seceded.

So…..now there were two state governments in Virginia, one claiming loyalty to the Confederacy, the other claiming loyalty to the Union, and both claiming to be the official government of the state, a “house divided” within a “house divided”. At a subsequent convention of the western representatives, it was decided that the “break away” counties should completely sever all ties with the rogue government in Richmond and form their own state, finally settling on the name of West Virginia. There was some uncertainty regarding which counties would be encompassed within this new state, specifically a number of counties straddling the demarcation that had not originally been represented at the conventions or had been unable to conduct elections due to armed Confederate occupancy but had been invited to join the new state and remain in the Union.

While there had been much emotional debate over what was admittedly a very radical move, the rationale for action seemed sound. If a state had the right to secede from the Union, a cluster of counties should have the right to secede from the state and form a state of their own. The only problem was that there was this document called the Constitution of the United States in which Article IV, Section 3 states “…no new States shall be formed or erected within the jurisdiction of any other State…without the consent of the Legislatures of the States concerned as well as of the Congress.” Clearly a request for statehood had to be forwarded and approved by Congress. But when it was, it created quite a conundrum.

It was one thing to temporarily recognize the Restored Government as representing Virginia until the rogue state could be brought back into the fold when the rebellion was suppressed, but quite another to permanently rupture the state. If there was no likelihood that the North would prevail and the Union once more restored, perhaps it made sense. But if the President and Congress still held hope that the Union would be restored, why permanently tear apart one of its states?

The greater question centered around the first part of Article IV, Section 3, “…no new States shall be formed or erected within the jurisdiction of any other State…without the consent of the Legislatures of the States concerned…” Which legislature? The legislature of the Restored Government, or the legislature in Richmond? Or both? “…the consent of the Legislatures of the States concerned…”, the plural form of State possibly implying the legislatures of both the original and the proposed splinter state. Both claimed to be the true and rightful legislature representing the State of Virginia, and the legislature in Richmond would never consent to the formation of West Virginia. But Virginia had seceded from the United States and joined the Confederate States of America. Since it was operating under the Confederate States Constitution, did it have any authority under the United States Constitution to grant or disavow approval? The most brilliant minds in Washington were philosophically divided on the question.

When the bill for West Virginia statehood was presented before and passed by Congress, the vote was largely along partisan lines, no Democrats voting in favor in the House and only one Democrat voting in favor in the Senate. Despite its sixty percent majority in Congress, President Lincoln was still wrangling with the bill’s legality under the constitution. His own cabinet was equally split, three to three, in their opinion of whether the bill was or was not legal within the Constitution.

The President finally reasoned that the use of the plural form of “state” applied not to the division of one state but to another condition contained within Article IV, Section 3, “…nor any state be formed by the juncture of two or more states or parts of states…” It would not be practical to believe that an area such as that of the proposed state of West Virginia had to seek further consent from itself for statehood when its proposal to splinter from the original state already represented such consent. So, if the consent of both legislatures, that of the Restored Government and that in Richmond, was not needed, which of the two was legally authorized to give consent? The answer to that question was and is a matter of conjecture and the reason scholars continue to debate the constitutionality of West Virginia’s bid for statehood.

After wrestling with the question, President Lincoln finally concluded “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…”, that body being the Restored Government. And besides, at a time when the country was torn asunder, he was not about to turn away those who wished to maintain their loyalty to the Union. “I believe the admission of West Virginia into the Union is expedient.” Despite his desire to return at least a part of the Virginia Commonwealth to the Union, President Lincoln lamented that the exercise had established “a dreadful precedent”.

The President signed the bill that would carve out fifty counties to form West Virginia, but he had one condition: the new state must agree to an amendment for the gradual emancipation for those enslaved within its borders. The amendment to the bill became known as the Willey amendment, so named for its author, and was passed with an overwhelming majority of ninety-eight percent of its voters, and West Virginia was admitted to the Union, officially seceding from Virginia to become the thirty-fifth state.

Controversy did not die with the stroke of the President’s pen. Some in Congress, mostly Democrats, refused to recognize Senators or Representatives of the newly formed state. They maintained that legally and constitutionally no such state existed; therefore, its representatives could not be considered legitimate. The war that had torn the country apart had now left one of its states torn asunder, a physical rupture that would never be mended.

Ironically, at war’s conclusion, the Virginia Legislature repealed the actions of the Restored Government claiming it had no authority to secede from the state. A dispute that centered on whether two particular counties should remain in West Virginia or returned to Virginia was argued before the United States Supreme Court, the court siding with West Virginia, implicitly affirming that it had received the necessary consent under the Constitution to form a new state and explicitly agreeing that the two counties in question remain in West Virginia.