Statehood for West Virginia: An Illegal Act?
By Sheldon Winston
Volume 30, Number 3 (April 1969), pp. 530-534
The admission of West Virginia in the midst of a war was an unusual event in the history of our nation. The circumstances of its admission leaves doubt as to whether the granting of statehood to West Virginia had a basis in law.
A relatively unknown political entity played a key role between June 17, 1861, and October 24, 1861, in the creation of West Virginia. We must look to the history of that government to determine the legality of West Virginia statehood. The restored Union-oriented government of Virginia lived briefly and with little notoriety during the War Between the States. Its fragile existence, however, was crucial in the dismemberment of Virginia and the admission of West Virginia to the Union.
The original State of Virginia was a state zealously sought by both the Federal Government and the emerging Confederacy prior to the outbreak of hostilities at Fort Sumter, South Carolina.
Under the impact of events at Fort Sumter, however, and President Lincoln's request for 75,000 troops, Virginia cast its lot with the Confederacy.1
During the debate prior to the vote on secession, Waitman T. Willey, who became a United States Senator from the Restored Government of Virginia and later United States Senator from West Virginia enunciated the position of those delegates from the mountainous western counties of Virginia.
I am for Virginia, as she is and was; as our forefathers created her, one and indivisible . . . . But if we are to be dragged into secession or dissension; become a mere appendage of a southern confederacy . . . . our oppression may become intolerable, and I for one will be ready to accept the only alternative.2
Once the convention voted to leave the Union many delegates from the northwest counties left. Out of the 47 delegates from the territory that ultimately formed West Virginia, 32 voted against secession.3 The pro-Union delegates returned to their homes and then assembled in Clarksburg on April 23. The hastily formed gathering recommended that each dissident county have five representatives meet in Wheeling on May 13.
On May 13, 1861, the first Wheeling Convention convened in Washington Hall for the purpose of reorganizing the government of Virginia and remaining in the Union.4 Delegates from 25 counties were represented but no one individual led the convention.5
A Committee of State and Federal Relations chaired by Francis H. Pierpont, who later became Governor of the re-organized Virginia government, was established. Under his leadership the committee submitted a report to the rebellious northwest counties.
1. Policy of state authorities was unwise and utterly subversive and destructive of our interests and efforts should be made to defeat the ordinance of secession in the special referendum.
2. If people of the state should ratify secession, a special election should be held in the northwest counties to choose delegates to meet at a second Wheeling Convention.
3. People of northwest counties might appeal to Virginia to let them leave peacefully.6
Shortly thereafter, on May 23, 1861, the Secession Ordinance was ratified overwhelmingly by the people of Virginia. Only 20,373 Virginians voted to stay with the Union, while 125,950 cast votes to join the Confederacy.7
The dissident group of Virginians met again in Wheeling on June 11, 1861 and selected Arthur Boreman as chairman. He later became West Virginia's first governor. Delegates to the second Wheeling Convention signed a declaration of rights on June 17 calling all state offices of Virginia vacant, and all actions by the General Assembly in Richmond to be null and void. Its acts of attempting to force "the people of Virginia to separate from and wage war against the government of the United States and against citizens of neighboring states, were therefore declared to be without authority."8
This same convention, on June 20, called for the government of Virginia to be restored to the people and elected Francis Pierpont as the new governor until such time as a new election could be held. In order to have a "restored legislature," all loyal individuals who had been elected the previous May were declared to be "The Legislature of the State."9
The second Wheeling Convention assumed power, in an arbitrary fashion, by calling the existing government in Virginia illegal! The government of Virginia, in the eyes of the second Wheeling Convention, had been restored to the Union even though Virginia as a state had overwhelmingly voted for secession.
The question arises. Was this new government a sincere effort on the part of loyal Virginians, or was it a subterfuge to enable separatists to set up an entirely new state separate from the parent state?
The connection between the Union-oriented Virginia government and the emergence of West Virginia becomes very clear when one considers the fact that four of the five restored Virginia representatives in Congress later served in West Virginia's first Congressional delegation.
On October 24, 1861 the inhabitants of the Restored State of Virginia approved statehood for those living in the counties that were to become West Virginia. Loyal Virginians approved West Virginia statehood by a vote of 18,408 to 781!
In order to give West Virginia statehood a legal ediface (sic), the consent of the Restored Government was of paramount importance. Article 4, section 3 of the Federal Constitution provides that "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 legislature of the states concerned, as well as of the congress."
Actual statehood did not occur until June 20, 1863 but the creation of West Virginia was just about assured three and one-half months after the formal birth of a loyal Virginia government.
Most of the individuals consenting to the creation of West Virginia would later live in and be actively involved in its affairs. The overwhelming majority of individuals voting for the separation lived in that area that was to be torn from the "Old Dominion."
The dubious constitutional authorization for West Virginia came up often during the debate leading to statehood. Senator Powell of Kentucky questioned whether the Restored Legislature of Virginia represented the will of loyal Virginia.
Out of the 160 counties that comprise the state of Virginia, less than one-fourth have assumed to act for the entire state, even within the boundaries of the new state more than half of the voters have declined to take part in the election. No Senator could pretend to claim that even a 3d part of the people of Virginia ever had anything to do with rendering their assent to the making of this state within the territorial limits of the ancient commonwealth.10
Representative Joseph Segar of Virginia was alone in his delegation opposing West Virginia statehood. He maintained in a House debate that "there is no evidence that the majority of people within the counties which were to compose the new state had ever given its assent to its formation."11 He called the statehood bill a punitive measure chastening Virginia.
In the same theme Representative James Blaine of Maine argued that "essentially the government of West Virginia was giving permission to the formation of a new state of West Virginia."12
Representative Thaddeus Stevens of Pennsylvania expressed an opinion held by many.
We may admit West Virginia as a new state, not by virtue of any provision of the constitution, but under an absolute power which the laws of war give us. I shall vote for this bill upon that theory, for I will not stultify myself by supposing that we have any warrant in the constitution for this processing.13
Even after West Virginia was admitted to the Union, Senator Davis of Kentucky objected to seating its Senators in the upper house.
I hold that there is, legally and constitutionally no such state in existence as the state of West Virginia and consequently no senators from such a state. My object is simply to raise a question to be put upon the record, and to have my name as a Senator recorded against the recognition of West Virginia as a state of the United States. I do not believe that the Old Dominion, like a polypus, can be separated into different segments, and each segment become a living constitutional organism in this node. The present state of West Virginia as it has been organized, and as it is seeking representation on the floor of the Senate, is a flagrant violation of the Constitution.14
To the present day Virginia does not recognize the Restored Government of Virginia in its list of state administrations, or the validity of the secession by West Virginia.15
Virginia had lost a third of its area when in entire violation of the Federal Constitution, its western part had been torn away, organized and admitted to the union as the state of West Virginia.16
Jefferson Davis in his memoirs wrote, with considerable bitterness, on the creation of West Virginia:
When the state convention at Richmond passed an ordinance of secession, which was subsequently ratified by a 60,000 majority, it was as valid an act for the people of Virginia as was ever passed by a representative body. The legally expressed decision of the majority was the true voice of the state. When, therefore, disorderly persons in the northwest counties assembled and declared the ordinance of secession "to be null and void," they rose up against the authority of the state. . . . The subsequent organization of the state of West Virginia and its separation from the state of Virginia were acts of secession. Thus we have, in their movements, insurrection, revolution and secession. . . . To admit a state under such a government is entirely unauthorized, revolutionary, subversive of the constitution and destructive of the Union of States.17
Even President Lincoln had doubts about the legality of admitting West Virginia to the Union.
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 many severe trials. The division of a state is dreaded as a precedent but a measure expedient by a war is no precedent for times of peace.
It is said that the admission of West Virginia is secession, and tolerated only because it is our secession. Well, if we 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.18
The Restored Government of Virginia existed for a brief time as a weak impotent political entity. This fragile government did make it possible, however, for West Virginia to eventually enter the Union with a modicum of constitutionality. The people of West Virginia had utilized a national crises to acquire statehood.
The legality of West Virginia's creation and admission was obviously in doubt. Perhaps granting statehood to West Virginia was illegal, but its existence today attests to the durability of that very disputed decision.
1. Beverly Munford, Virginia's Attitude Toward Slavery and Secession (Richmond, Va.: L. H. Jenkins Inc., 1909), 271.
2. John T. Favio, Romance of the Boundaries (New York: Harper & Bros., 1926), 265.
3. Homer F. Fansler, History of Tucker County West Virginia (Parsons, West Virginia: McClain Printing Co., 1962), 129.
4. Ibid., 130.
5. Edward Smith, Borderland in the Civil War (New York: MacMillan Co., 1927), 194.
6. Ibid., 198.
7. Charles H. Ambler, Francis H. Pierpont (Chapel Hill: University of North Carolina Press, 1937), 94.
8. Charles H. Ambler, West Virginia (New York: Prentice Hall, Inc., 1940), 331.
9. Ibid., 333.
10. James G. Blaine, 20 Years of Congress (Norwich, Conn: Henry Bill Publishing Co., 1884), 462.
11. Ibid., 465.
12. Ibid., 458.
13. Favio, 266.
14. U.S., Congressional Globe, 38th Cong., 1st sess., 1863, Part 1, p. 1.
15. Hornbook of Virginia History (Richmond, Virginia: Division of History of Virginia Department of Conservation & Development, 1949), 8.
16. Ibid., 116.
17. Jefferson Davis, The Rise & Fall of the Confederate Government, 2 vols. (New York: D. Appleton and Co., 1881), II, 306.
18. Abe Lincoln, ed. John C. Nicolay, 2 vols. (New York: The Century Co., 1894), II, 286.