Rogue State (6 page)

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

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

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

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

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

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

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

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

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

These issues were not addressed. What about the arguments against West Virginia statehood articulated in Congress and Lincoln's own cabinet? In any event, neither the vast majority of the people or the elected [seceded] legislature, governor, or courts of the state of Virginia itself ever consented to separation of the western counties, let alone separate statehood for them.

So occurred the breach birth of the rogue state of West Virginia.

According to Article IV, Section III, of the United States Constitution, “New states may be admitted by the Congress into this union; but
no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned
as well as of the Congress.” (Author's italics).

West Virginia's statehood leaders should have had to obtain permission from Virginia in order to satisfy this constitutional restriction. That was hard to do given Virginia's status as a ‘state in rebellion' and the likelihood that such permission would have not been forthcoming had it been sought in Richmond. So they conveniently created their own “Restored” Government of Virginia and then gave themselves permission to leave! The convenient creation of a “Reorganized Government of Virginia” allowed those seeking separation of the western counties to seek consent from this anti-Tidewater, pro-Union body instead of the pro-Confederate Virginia government in Richmond.

On May 6, 1862, the General Assembly of the Reorganized Government of Virginia was convened by Governor Francis Pierpont. One week later, that General Assembly passed an Act Granting Permission for the Western Counties Assembled in Wheeling to Create the New State.
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This proved to be the ‘legal' basis for separating the western counties from Virginia with its ‘assent.' But was it legal? Was it constitutional? Did Virginia debate the issue or assent? Or was the creation of a new state named West Virginia a political expedient that Virginia was powerless, then and after the war, to halt?

On May 29, 1862, U.S. Senator Waitman T. Willey, representing, like U.S. Senator John Carlile, “Virginia,” presented a formal petition to the United States Senate for admission of West Virginia to the Union. Willey's petition was referred to the Committee on Territories. Senator John Carlile, who was a member of that committee, was assigned the task of writing the statehood bill.
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Apparently no one was concerned about a potential conflict of interest in this regard, since Carlile [and Willey] technically “represented” the state of “Virginia.” That, however, was the political point. It was part of the legal fiction and subterfuge by which the “State of Virginia” assented to its own amputation and the separation of fifty of its western counties to form a new rogue state.

On June 23, Benjamin Wade, who chaired the Committee on Territories, reported the bill to the Senate. Carlile personally added fifteen counties to the new state, provided only for gradual emancipation, and required a new constitutional convention. The “old” Virginia constitution had to be replaced, even though Virginia was supposedly represented by the “Restored” government of Virginia and its creature, the constitutional convention in Wheeling.
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When the West Virginia statehood bill was introduced, Senator Charles Sumner of Massachusetts, an abolitionist, called for an amendment requiring emancipation of all slaves in West Virginia on July 4, 1863. This proposal was defeated.

Eventually, the Senate agreed on a compromise. Senator Willey offered a substitute that called for admission of West Virginia upon approval of gradual emancipation by its constitutional convention [in Wheeling]. The Willey Amendment, which provided for gradual emancipation, passed; and on July 14, 1862, the West Virginia statehood bill also passed the U.S. Senate by a vote of 23-17, with eight abstentions.
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Had even seven of those eight abstaining Senators cast their votes as negative votes against the statehood bill with the Willey Amendment, it would have defeated the proposal. [Abstaining from a vote is often a way of saying no without being recorded in opposition].West Virginia statehood would have been delayed. And an impasse over the issue of emancipation, clearly a sensitive topic in both the Senate and in the western counties, might have created an insurmountable roadblock for admission of West Virginia.

Carlile's effort to secure admission of West Virginia to the Union without conditions [including any conditions related to abolition, which was the key issue] failed. Ironically, Carlile then opposed the Willey Amendment and voted against the statehood bill, ruining his political career.

For decades, historians have questioned Carlile's actions. He had long been one of the region's most prominent advocates for statehood, but eventually fought and voted against its creation. Although it is unclear what motivated Carlile, it appears that as a strict constructionist of the Constitution, he did not believe that Congress had the right to impose conditions in the new state's constitution. And since he had originally supported no provision for emancipation in West Virginia, the addition of the Willey Amendment to the West Virginia statehood bill apparently was the political tipping point for Carlile.

Emancipation, either on principle or as a restriction on the new state, was a crucial factor. But then Carlile was flexible enough in his constitutional construction to allow consideration of the severance of the western counties and application for admission for statehood in the first place. So the questions remain.

Debate in the U.S. House of Representatives over admission of West Virginia as a state also was contentious. However, on December 10, 1862, the U.S. House passed the West Virginia statehood bill by a vote of 96 to 55. The two to one majority was substantial but far from overwhelming. Clearly, many in the North had reservations.
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The West Virginia statehood bill was signed by President Lincoln on December 31, 1862. At that point, it appeared that West Virginia was on the verge of attaining its notorious rogue statehood.

President Abraham Lincoln received the West Virginia statehood bill on December 15, 1862. Lincoln had serious concerns and reservations. As was his style, the president asked the six members of his cabinet for written opinions on the constitutionality and expediency of admitting West Virginia to the Union. They divided evenly.
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President Lincoln had supported creation of the Reorganized Government of Virginia. However, he recognized that the West Virginia statehood bill was being forced upon him by so-called Radical Republicans
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in their effort to use the war and West Virginia statehood to weaken Virginia an d expedite an end to slavery in the United States. President Lincoln recognized the questionable nature of the state's creation, noting that “a measure made expedient by a war is no precedent for times of peace.”
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Abraham Lincoln was the greatest president in American history. He was also its most eloquent and inspirational. He has been mythologized beyond repair, however, often to the detriment of those who seek to find and enjoy the splendid human being who served as the nation's sixteenth president. In the case of West Virginia, however, Lincoln clearly let his “Whig” political instincts get the better of his usually sound judgment by allowing Congress to steamroll West Virginia statehood into existence.

Lincoln himself had reservations pertaining to statehood for West Virginia, both stated [see above] and implied in his search for cabinet opinions on the matter. Had he truly believed in the constitutionality of West Virginia statehood, he could have and almost certainly would have pushed ahead in tandem with statehood advocates in Congress. Throughout the war, Lincoln did not shirk from assuming authority and power in the name of h is role as commander in chief. Those actions sometimes took the form of temporarily dissolving state legislatures [i.e., Maryland in 1861] and abrogating personal liberties and constitutional rights, which he deftly and unilaterally did as necessary.

Yet the key to the aforementioned actions is the word temporary. In the case of West Virginia statehood, the outcome was permanent. Thus, Lincoln hesitated, equivocated, and demonstrated by such reticence his own lack of confidence in the constitutionality of the matter.

Despite his reservations, on December 31, 1862, President Abraham Lincoln signed the West Virginia statehood bill. It was a matter of political expediency. Lincoln believed that he could not afford to lose support from loyal West Virginians in the midst of the Civil War, although that contention is of mixed validity given the lack of military action in that region after 1861 and the inability of western Virginians to influence affairs in Richmond.

More importantly though, Lincoln also could not risk potentially alienating abolitionists in the North or the “Radical” Republicans in Congress, especially if his more lenient ideas for reconstruction after the war were to have a chance. Whether or not the calculus of that support for the Union in West Virginia at that stage of the war was militarily or logistically substantive or important by mid-1863 is another issue. It was not articulated in an evaluable form at the time. In his opinion, however, based on political considerations, Lincoln wrote optimistically and somewhat inaccurately.