The Federal Government, as already observed, was constrained at an early stage of the Civil War to define its attitude toward loyal citizens of the seceding States. The earliest indications of the policy adopted may be discerned in the case of Virginia, which presents the only instance of a people in any of the insurrectionary States organizing open resistance to revolution. All departments of government in that Commonwealth having gone over to rebellion, the loyal minority were left without any organization for the conduct of domestic affairs. In these circumstances they called a convention which by an original act of sovereignty reconstituted the government. The progress of the conflict was attended in that State by consequences not elsewhere observed, and it is chiefly because of this fact that a slight departure from exact chronological order is believed to be justified. The principles which guided the Administration will be easily comprehended by considering their application to the novel and somewhat embarrassing questions that arose before rebellion was finally crushed within the borders of that once glorious Commonwealth.

“The Convention of Virginia” which, by authority of the Legislature, assembled at Richmond, February 13, 1861, passed on April 17 following an ordinance of secession from the United States.^[154] Though the injunction of secrecy was never removed from this proceeding, the tally, discovered soon after among the private papers of a member, shows that 88 delegates favored and 55 opposed the measure; one was excused from voting, eight were either absent or silent.^[155] This strong opposition is explained in part by the physical characteristics of the State.

The principal chain of the Alleghanies formed in the western portion of the Old Dominion a lofty range which parts the streams finding their way into the Ohio and the Potomac from those that reach the lower waters of Chesapeake Bay or the sounds of North Carolina. The country southeast of this ridge, including the Shenandoah Valley, the Piedmont district, the middle division and the tide-water region, contained about three fourths of the white inhabitants, and something less than three fourths of the area, of Virginia. In this section were found many large tobacco plantations cultivated almost exclusively by negroes. Indeed, it was in the light soil of the tide-water counties of Virginia that English settlers in America first attempted, nearly two and one half centuries before, the memorable experiment of African slave labor. Soon after 1808, when their importation was prohibited by act of Congress, slaves were bred in Virginia to supply the demand of Southern markets, and by 1860 the bondmen in that Commonwealth had become almost two thirds as numerous as the master race.^[156] It is sufficiently accurate to say that the triangular district bounded on the north by the winding course of the Potomac, by the parallel of 36° 31' on the south and stretching from the Atlantic to the crest of the Alleghany mountains, comprised all that part of “the good old commonwealth” which was then either historically important or interesting. This prolific soil was the birthplace of many of America’s most illustrious sons; its inhabitants for the most part were proud to trace their descent from the earliest settlers along the James; many were wealthy, and all had long been distinguished for their hospitality.

Beyond this favored region the country, which slopes gradually down to the upper Potomac and the Ohio, is marked by a succession of parallel ranges separated by fertile valleys; but like the large tract which encircled the Adirondacks and a similar one in northern Pennsylvania, the Virginian wilderness remained untouched by the ceaseless tide of immigration which at the close of the Revolution swept westward from the Atlantic seaboard. For this uninviting region the second Federal census indicates less than two inhabitants to the square mile; by 1810 pioneers from the line of the Ohio river encroached on its silent forests. At the next census, however, a portion was still unoccupied, but in the succeeding decennial period it received from various points, chiefly from Pennsylvania, Ohio and New England, many enterprising and thrifty settlers. The sixth census, that of 1840, represents the entire tract as sparsely inhabited.^[157] Its abundant resources, then but little developed, subsequently gave rise to a great variety of profitable industries, and it advanced rapidly in population. Extensive plantations, however, were few; the number of slaves, owing somewhat to the facility for escape, had always been small, and in the ten years preceding the outbreak of hostilities had actually diminished by upwards of two thousand.^[158] Though it then contained nearly one fourth of the whites, it included no more than one thirtieth of the negroes in the State. Their labor, too, except in other than agricultural occupations, afforded little remuneration. In consequence of its productions as well as its location both the interests and sympathies of the people were with the adjoining States of Ohio and Pennsylvania.

But, apart from geographical considerations, northwestern Virginia had a grievance of long standing: for years its inhabitants had complained that they were not fairly represented in the Legislature, and the immunity from taxation enjoyed by their fellow-citizens east of the mountains was a discrimination too gross to escape attention. The slave oligarchy, they declared, possessed and wielded for its own advantage the political power of the State. The question of its dismemberment had been discussed as early as 1829–30, when the mountain sons of Virginia were on the verge of revolution. The East then yielded a pittance of power, which, though far short of the demands of justice, reconciled western Virginians for the time. In 1850 they were again on the point of insurrection. On this occasion adequate representation was conceded in the lower though withheld in the upper chamber of the General Assembly, the dominant party thus retaining control of that body as well as the benefits of a constitutional provision by which slaves under the age of twelve years were exempt from taxation, and of those liable to assessment none could be valued at more than three hundred dollars even if worth in the market a thousand dollars or upwards.^[159] Moreover, much of the public revenue was expended upon internal improvements for the eastern section of the State. The Shenandoah Valley, at one time showing signs of discontent, was bound by the construction of railways, in social as well as in commercial life, more firmly to Richmond. In short, the Alleghanies formed a barrier almost completely cutting off intercourse between the two divisions. Their relations were well expressed by Governor Pierpont, who told Senator Wade that there was no communication whatever between the people except the furnishing a few members to the Legislature and a few inmates of the penitentiary.^[160] Their different interests tended to alienate the sections; the hand of nature had traced the line of separation.

Now, however, that a crisis was impending, the Richmond authorities, to harmonize every element within their Commonwealth, were willing to forego this privilege; to share the burdens of State administration, to meet State liabilities, and generally to place themselves on a footing of equality with their fellow-citizens along the Ohio. This concession, by a majority of 50,000, was actually extorted in an election from the prudence or the fears of disunionists whose magnanimity was duly emphasized by Governor Letcher in an appeal to the people of the northwest.^[161] The latter refused, notwithstanding, to acquiesce in the action of the secession convention which, so far as it was able to do so, carried their State, as a political organization, out of the Union.

It may be affirmed generally that the professional politicians and large property owners of this region were disloyal;^[162] State officials with surprising unanimity were ardent advocates of secession and active in committing their Commonwealth to its support. An overwhelming proportion of the plain people, however, were devotedly attached to the Union and determined on its preservation. Therefore when the Richmond State government attempted to execute its laws in these parts it encountered the most spirited resistance. Especially was this true in the Pan Handle counties, where opposition was promptly organized.

Probably the first consultation upon the grave questions that had arisen was held at the Court House in Wellsburgh, Brooke County, where a large number of citizens from that and the adjacent county of Hancock assembled to hear the report of Mr. Campbell Tarr, their delegate to Richmond. From Harrison came Hon. John S. Carlile, who, like Mr. Tarr, narrowly escaped with his life from that city, where he had represented his county in the convention. They reported the proceedings of that body and urged immediate preparation to resist. As a result of this discussion a committee of four was appointed to procure arms and ammunition in Washington. En route thither they had an interview at Harrisburg with Governor Curtin, who not only expressed sympathy with their object, but promised assistance if necessary. On arriving at the national capital they called upon Hon. Edwin M. Stanton, who was a native of Steubenville, Ohio, and a warm personal friend of each member of the committee. They were immediately presented to Mr. Cameron, Secretary of War, who, on learning the purpose of their visit, manifested some hesitation as to his legal right to comply with their request. Upon this Mr. Stanton declared with emphasis that “the law of necessity gives the right,” and added, “let them have arms and ammunition; we will look for the book law afterwards.”^[163] Two thousand rifles with suitable ammunition were then furnished, and as security for their proper use Mr. Stanton tendered his own name. From Wellsburgh, where they were temporarily kept in expectation of a rebel attack, these arms were sent for distribution to Wheeling.

United States troops from Ohio and Indiana together with local volunteers soon drove the Confederate forces from this region, and subsequently, though often menaced, it was almost exempt from the ravages of war.^[164] Thus encouraged, Union men resolved to form a political organization coextensive with Virginia or to establish a separate and distinct State. Preliminary movements toward that end were promptly inaugurated, and, April 22, 1861, five days after the passage of the ordinance, nearly 1,200 citizens of Clarksburgh denounced in a public meeting the action of the secession convention and recommended the people of northwestern Virginia to assemble on May 13 at Wheeling. On the 4th a Union mass meeting had been held at Kingwood, near the northern border. The separation of western from eastern Virginia was declared by this body to be essential to the maintenance of their liberties. They also resolved to elect a Representative to Congress. On the following day there convened at Wheeling another assemblage, which considered the question of separating from that portion of the State in rebellion. About the same time other gatherings were held in different localities.

There were thousands of eager and earnest patriots in the city of Wheeling on May 13, when nearly four hundred delegates, mostly appointed by primary meetings, and representing twenty-six counties, assembled to deliberate on the situation. The best method of organizing opposition to treason was the question: how to inaugurate a government which the Federal authorities would recognize and protect?^[165] On this important subject there is said to have been considerable diversity of opinion; the decision finally reached was based upon a suggestion by one of the members that since Governor Letcher and other State officers, by adhering to the pretended ordinance of secession, had forfeited their powers, and the existing constitution made no provision for such an emergency, the only way was to ask the people, the source of all political power, to send delegates to a convention authorized to supply their places with loyal men. This proposal was presented to the meeting and adopted with great unanimity.^[166] A General State Committee, empowered to appoint sub-committees in all counties where practicable, was then named, and a stirring address put forth. It announced their purpose and urged all loyal citizens to elect representatives to a second convention. Copies of this appeal were sent to influential citizens throughout the State, and it was agreed after a session of three days to choose on May 26 delegates to the proposed convention.

This election having been held at the time appointed, representatives from nearly forty counties assembled at Wheeling on June 11. The convention, numbering 98 members, organized by selecting for its president Hon Arthur I. Boreman. Before proceeding to business the following oath was administered to the delegation from each county: “We solemnly declare that we will support the Constitution of the United States and the laws made in pursuance thereof, as the supreme law of the land, anything in the Ordinance of the Convention that assembled in Richmond on the 13th day of February last to the contrary notwithstanding, so help us God.”^[167] The State government was reconstituted on the 13th by an ordinance declaring vacant all places, whether legislative, executive or judicial, whose incumbents had espoused the cause of secession. This class, as already observed, included nearly every official in Virginia. These vacancies the convention supplied by the appointment of loyal men. In the constitution they made an important alteration which prescribed the number of delegates necessary to constitute a quorum in the General Assembly. All State, county and town officials were required to take an oath of allegiance which pledged support of both the Federal Constitution and the restored government of Virginia. On June 17 a declaration of independence was adopted without one dissenting voice; it denounced the usurpation of the Richmond convention, which had assumed to place the resources of Virginia at the disposal of the Confederate Government, to which power it repudiated allegiance. Resolutions expressing a determination never to submit to the ordinance of secession, but to maintain the rights of Virginia in the Union, were then passed. All persons in arms against the national Government were commanded to disband and to return to their allegiance. Though the members seriously endeavored to reorganize their government, it was with an express declaration that a division of the Commonwealth was a paramount object of their labors, and they decided, June 20, by a unanimous vote in favor of ultimate separation.

Under an ordinance previously adopted Hon. Francis H. Pierpont was chosen Governor on the same day; a lieutenant-governor, an attorney-general and an executive council of five were also appointed. Other administrative offices were subsequently filled. The new incumbents were to exercise their functions for six months or until successors should be elected and qualified. The convention on June 25, subject in an emergency to be reassembled by the Governor and Council, then adjourned to August 6, 1861.

Before concluding this session the convention directed all members willing to swear fealty to the Union, who were elected to the assembly on May 23 preceding, to meet on the 1st of July at Wheeling. At the time of their election these representatives were destined for Richmond. In addition to those regularly chosen under the old law of the Commonwealth, others pursuant to an ordinance of the convention were elected to fill vacancies. All were to qualify themselves by taking an oath or affirmation of allegiance to the United States and to the reorganized government of Virginia. These members, chiefly from the western counties, were to compose the law-making body, which was invested with all the powers and duties pertaining to the General Assembly.

The new Governor was inaugurated on June 20, and, after taking the oath of office, said: “We have been driven into the position we occupy to-day by the usurpers at the South, who have inaugurated this war upon the soil of Virginia, and have made it the great Crimea of this contest. We, representing the loyal citizens of Virginia, have been bound to assume the position we have assumed to-day for the protection of ourselves, our wives, our children, and our property. We, I repeat, have been driven to assume this position; and now we are but recurring to the great fundamental principle of our fathers, that to the loyal people of a State belongs the law-making power of that State. The loyal people are entitled to the government and governmental authority of the State. And, fellow-citizens, it is the assumption of that authority upon which we are now about to enter.”^[168]

“It was not the object of the Wheeling convention,” he declared on a later occasion, “to set up any new government in the State, or separate, or other government than the one under which they had always lived.”^[169]

From these utterances his hearers must have concluded that the reorganized government was not for a part but for the whole of Virginia. Indeed, it was to the discernment of Mr. Pierpont that Virginia loyalists were chiefly indebted for a legal solution of the intricate problem that confronted them. While Carlile and others were urging a counter-revolution, Mr. Pierpont was carefully studying the provisions of the Federal Constitution. The clause of that instrument which guarantees a republican form of government was designed, he believed, to meet just such an emergency as had arisen. Though this conservative suggestion was not at first received with much favor, it continued gradually to win adherents until its propriety was universally recognized.^[170] By thus proceeding along constitutional lines a State government in all its branches was soon established in every county not occupied by an armed foe.

The Legislature of the restored State assembled, July 2, at Wheeling and assumed the full exercise of its powers. Two United States Senators, Waitman T. Willey, whose fidelity many considered doubtful, and John S. Carlile, an able, eloquent and then a trusted leader, were elected, July 9; the former to fill the vacancy occasioned by the withdrawal of James M. Mason, the latter to succeed Robert M. T. Hunter, who also had abdicated his seat in Congress. Both were admitted, though not without a vigorous protest from the minority, to seats at the first session of the Thirty-seventh Congress, which met on July 4, 1861.

Their certificates were presented, July 13, by Andrew Johnson. Senator Bayard entered a protest. Their admission, he said, would be a recognition of an organization that was not the regular government of the Commonwealth. Mr. Letcher was still Governor of Virginia, his term not having expired. The Senate had no authority to create a new State out of a part of an existing one. He then moved to refer their credentials to the Committee on the Judiciary. His colleague, Mr. Saulsbury, objected, that Mason and Hunter were not expelled until July 11, whereas the claimants were appointed two days previously, at a time when no vacancies had occurred. To this Senator Johnson replied that the vacancies did in fact exist at the time of their election, July 9, and that the expulsion of Mason and Hunter was not merely a declaration that vacancies existed, but their seats were regarded as filled, and the occupants expelled from the floor of the Senate.

Mr. Bayard denied that, even if Mason and Hunter were guilty of the alleged crimes, there was any power in either the Governor or Legislature to terminate their appointments; they might die, they could be removed by expulsion, but vacancies could not be anticipated by the Legislature of Virginia. The name of Mr. Pierpont could convey no authority to their credentials. On the question of reference five Senators voted in the affirmative, thirty-five in the negative. The oath was therefore administered and they took their seats, July 13, at the special session which began on the 4th.^[171]

A resolution was passed by the House of Delegates of the reorganized government instructing the Senators and requesting their Representatives in Congress to vote the necessary appropriation of men and money for a vigorous prosecution of the war, and to oppose all compromise. A stay law was also enacted by the Legislature, and a bill passed which authorized the Governor to organize a patrol in such counties as might require it; two hundred thousand dollars were appropriated for military purposes.

On August 6, 1861, the Wheeling convention reassembled. Hitherto in all its proceedings relative to a reorganization there had been great unanimity, but when the delegates returned they were conscious of a strong popular sentiment in favor of erecting a new State, a subject that had been introduced, though not much discussed, before adjournment. This determination among their constituents seriously troubled many of the members. Political aspirations had been awakened; many of them had enjoyed the benefits of the humbler offices under the mother State; the Union forces, it was confidently expected, would soon crush the insurrection in Virginia, and the reorganized government, with themselves at its head, would be acquiesced in by their recent oppressors. To their ambition this hope was far more flattering than the prospect of administering the affairs of a comparatively small State on the western frontier of the Old Dominion. Then, too, the idea of dismemberment was certain to wound Virginia State pride. Moreover, the movement to form an independent commonwealth, when the reorganized government itself had been scarcely recognized, would look premature. Sentiments of this nature had begun to possess the minds of many delegates about the time of their return.

In compliance with what appeared to be a popular demand, however, these considerations were disregarded, and the convention by a vote of 50 to 28 passed an ordinance authorizing the formation out of the Commonwealth of Virginia of a new State to be called Kanawha, which was to embrace thirty-nine counties between the Alleghanies and the Ohio, provided the people thereof, at an election to be held on October 24, should express themselves in favor of such a measure; on certain prescribed conditions other contiguous counties could be annexed. At the election which was to decide this important question delegates to a constitutional convention were also to be chosen, and, if separation was approved by the people, these representatives were to assemble at Wheeling on November 26 and organize themselves into a convention. Any constitution which they might adopt was to be submitted to the qualified electors of the counties concerned. The new commonwealth was to assume a just proportion of Virginia’s public debt as it existed prior to January 1, 1861; private rights derived from her laws were to be valid under the proposed State, and were to be determined by the laws then existing in Virginia.^[172]

The convention, as previously noted, reassembled on August 6. Three days later one A. F. Ritchie, a member from Marion County, forwarded to Attorney-General Bates at Washington a letter which requested and received an immediate reply. Mr. Ritchie published the response, of which this is the important part:

The formation of a new State out of Western Virginia is an original, independent act of revolution. I do not deny the power of revolution (I do not call it right, for it is never prescribed; it exists in force only, and has and can have no law but the will of the revolutionists). Any attempt to carry it out involves a plain breach of both the constitutions—of Virginia and of the Nation. And hence it is plain that you cannot take such a course without weakening, if not destroying, your claims upon the sympathy and support of the General Government, and without disconcerting the plan already adopted by both Virginia and the General Government for the reorganization of the revolted States and the restoration of the integrity of the Union.

That plan I understand to be this: When a State, by its perverted functionaries, has declared itself out of the Union, we avail ourselves of all the sound and loyal elements of the State—all who own allegiance to and claim protection of the Constitution—to form a State government as nearly as may be upon the former model, and claiming to be the very State which has been in part overthrown by the successful rebellion. In this way we establish a constitutional nucleus around which all the shattered elements of the commonwealth may meet and combine, and thus restore the old State in its original integrity.

This, I verily thought, was the plan adopted at Wheeling, and recognized and acted upon by the General Government here. Your convention annulled the revolutionary proceedings at Richmond, both in the Convention and the General Assembly, and your new Governor formally demanded of the President the fulfillment of the constitutional guaranty in favor of Virginia—Virginia as known to our fathers and to us. The President admitted the obligation, and promised his best efforts to fulfill it. And the Senate admitted your Senators, not as representing a new and nameless State, now for the first time heard of in our history, but as representing “the good old commonwealth.”

Must all this be undone, and a new and hazardous experiment be ventured upon, at the moment when dangers and difficulties are thickening around us? I hope not.... I had rejoiced in the movement in Western Virginia, as a legal, constitutional, and safe refuge from revolution and anarchy; as at once an example and fit instrument for the restoration of all the revolted States.

I have not time now to discuss the subject in its various bearings. What I have written is written with a running pen and will need your charitable criticism.

If I had time to think, I could give persuasive reasons for declining the attempt to create a new State at this perilous time. At another time I might be willing to go fully into the question, but now I can say no more.^[173]

Mr. Ritchie, who had opposed a dismemberment of the old Commonwealth, was anxious, no doubt, to justify his vote by the endorsement of an eminent public character, and it is not improbable that before finally determining his action in so important a matter he was desirous of the opinion of some member of the Administration. Mr. Bates’s communication is dated the 12th; the convention did not adjourn till the 25th of August. At any time prior to January 1, 1862, it was subject to be reassembled by its president or by the Governor.

The election of October 24, by a vote of 18,408 to 781, decided in favor of a division of the Commonwealth.^[174] At the same time fifty-three delegates, representing forty-one counties, were chosen to frame a constitution for the proposed State. Of this convention John Hall was elected president and Ellery R. Hall secretary. The task before it, by no means an easy one, was to draft a fundamental law that would secure the approval of the people of western Virginia, of the Legislature of the restored State and of Congress. After a session of nearly three months it adjourned, February 18, 1862. Commissioners to convoke this body, should its work be recognized by Congress, had first been appointed. On December 3 preceding the name of the new State was changed to West Virginia.

In the convention were many members who desired silence on the subject of slavery; others saw clearly that to ignore the cause of their present troubles would ensure a rejection of their work by Congress. This element felt assured that the temper of the national Legislature would not indulge the slave power by giving it two additional Senators besides an increase of strength in the Electoral College. There was also a sentiment which desired a postponement of the disturbing question until all others had first been determined. The friends of gradual emancipation were warned by leading Republicans in Congress that the constitution would not be recognized without a satisfactory provision on this subject. The “peculiar institution,” however, still possessed influence enough to defeat such a purpose, and the convention adjourned without inserting any expression concerning slavery. Still, the friends of emancipation did not despair. Mr. Parker, one of these, caused to be printed in Ohio instructions to their assemblymen to make the following provision a part of their constitution if the speedy admission of the new State into the Union should appear to require it: “All children born of slave mothers in this State, after the constitution goes into operation, shall be free, males at the age of twenty-eight years, and females at the age of eighteen years, and the children of such females to be free at birth.”^[175]

This unauthorized action of Mr. Parker, in connection with appeals through the newspapers, was not without effect. At their county-seat the citizens of Upshur passed, among other resolutions, the following: “That we, the citizens of Upshur County, do endorse and accept the policy recommended by the present Chief Magistrate of the United States, (Abraham Lincoln) in his message of the 6th of March, 1862, to Congress, in regard to the emancipation of the slaves of the border States, as the policy that should be adopted by the people of West Virginia; and we do now pledge ourselves to advocate, defend and carry out the said policy, as the most promotive of our liberty, safety and prosperity in the Union.”^[176] Another resolution, adopted on this occasion, declared that the meeting expected the convention would have given the people an opportunity of expressing their sentiments on slavery in the proposed State. The convention, they complained, did not reflect the popular will.

The Union men and the loyal press of other counties followed the example of Upshur by approving the measure or copying the “Instructions.” Thus at the time of voting on the constitution an informal poll on slavery was obtained in twenty counties.

A faction in the convention proposed to annex the Shenandoah Valley with its large negro population; the success of such a plan, it was well understood, would ensure a rejection of the new State by Congress. To anticipate somewhat the events presently to be narrated it may be remarked at this point that the adversaries of the measure in Washington employed precisely the same tactics to defeat the movement for erecting an independent State.

The new establishment under Pierpont was regarded as representing the old Commonwealth. On December 2, 1861, the reorganized Legislature again assembled. The Governor recommended a repeal of the stay laws and confiscation of the property of secessionists. He congratulated the people that they had contributed their full quota, about 6,000 men, to the Union army.

The adversaries of slavery endeavored to obtain the consent of the restored Legislature to the condition that the gradual emancipation clause should become a part of the constitution as soon as ratified by the people. If Congress at its present session would give its consent and admit the new State on the same condition, the people, they declared, could be trusted to ratify afterward.

An election held April 3, 1862, gave, including the soldiers’ vote, 28,321 for and 572 against the constitution, no returns being received from ten counties.^[177] The vote for gradual emancipation, where an expression was had, was almost equal to that given for the constitution, both being nearly unanimous. The former received 6,052 for and 610 against it. How far this informal expression of opinion influenced Congress will presently be noticed.

At an extra session of the Legislature, convoked by Governor Pierpont, an act, in almost the identical language of that assenting to the formation of Kentucky, was passed, May 13, 1862, giving consent to the erection within the jurisdiction of Virginia of a new State to include forty-eight named counties; the second section of this act provided that Berkeley, Jefferson and Frederic counties could be annexed whenever a majority of their votes, at an election to be held for that purpose, should ratify the constitution. The act, together with a certified original of the constitution, was to be transmitted to their Senators and Representatives in Washington, who were requested to use their endeavors to obtain the consent of Congress to the admission of West Virginia into the Union.

On June 23, 1862, Mr. Wade, from the Committee on Territories, reported to the United States Senate a bill for the admission of West Virginia into the Union, and three days later requested its consideration. It stipulated, among other things, that “the convention thereinafter provided for shall, in the constitution to be framed by it, make provision that from and after the fourth day of July, 1863, the children of all slaves born within the limits of the State shall be free”; it also allotted to the new Commonwealth as many Representatives in Congress as her population would justify under the apportionment then existing.

Charles Sumner observed that the former was the imposition of a condition which proposed to recognize the existence of slavery during that generation. “Short as life may be,” he declared, “it is too long for slavery.” By the admission of West Virginia a new slave State would be added; he moved, therefore, to substitute for this requirement the Jeffersonian interdict that “within the limits of said State there shall be neither slavery nor involuntary servitude, otherwise than in punishment of crime whereof the party shall be duly convicted.”

Mr. Hale justly remarked that after consenting to the admission of so many States with pro-slavery constitutions it would be a singular fact if the first that ever applied with a provision for prospective emancipation should be rejected.

Senator Collamer believed that if West Virginia was to enter on a footing of perfect equality with other members of the Union she should, like them, have the right to regulate domestic questions, including slavery, in her own way. The condition imposed by the bill denied her that right.

Mr. Wade disliked the proposition as it stood, because it was very objectionable to him “to say that a man born on the 4th day of July, 1863, shall be free, and one born the day before shall be forever a slave.” “I should much prefer,” he added, “to have it graduated so that all born after the adoption of this constitution shall be free, and that all between certain ages shall be free at a certain period.” At this point Sumner’s amendment was lost by a vote of 24 to 11.

Mr. Carlile, of Virginia, who was foremost in organizing resistance to secession, had from the beginning assumed the appearance of a friend, but, after giving direction to the movement for separation, acted as an adversary to the new State; he opposed all conditions on its admission and expressed a preference that it be permitted to enter on the constitution submitted by its people. He would never “consent to have the organic law of a State framed for its people by the Congress of the United States.” There were 47,000 voters in the counties to be embraced within the proposed State; of that number only about 19,000 had voted on the constitution. At the last moment he delivered with his usual eloquence a strong argument against admission. An amendment which he submitted would have the effect certainly to postpone, perhaps altogether to defeat, the measure in the Senate. Failing to secure its adoption, he urged a postponement till December following; this motion, however, was voted down.

So surprised were his associates at this unexpected opposition that they inquired pointedly why these belated arguments had not been presented to the Committee on Territories when the measure was before them. Mr. Wade, its chairman, was especially severe in his condemnation of Carlile’s extraordinary course, for it was the reasoning of the Virginia Senator that had won their support; he had searched the precedents and submitted cheerfully to all the labors imposed by the Committee. Now by his opposition he brought everything to a stand-still.

His colleague, Mr. Willey, who had been converted in a rather advanced stage of the movement, declared that it was not the desire to be free from that part of the Commonwealth in rebellion that was responsible for the present attitude of western Virginia; the insurrection only precipitated the attempt to settle a controversy which was older than he. To enforce his remarks he added that great numbers of her citizens had determined to fix their abodes elsewhere unless West Virginia became an independent State. During this discussion the Senate had before it the constitution framed by the convention which met November 26, 1861, in the city of Wheeling.

After a vigorous address by Benjamin F. Wade, who had recently investigated the subject, and whose ardor had been aroused by a deputation of West Virginians then in Washington, the bill by a vote of 23 to 17 passed the Senate, July 14, 1862.^[178]

By Mr. Brown, of Virginia, a similar measure had already been introduced into the House on June 25. It was read twice and referred to the Committee on Territories.^[179] When called up on July 16 succeeding it was agreed to postpone consideration of the bill until the regular session in December,^[180] and on the 9th of that month, when Representative Bingham asked that it be put on its passage, discussion of the subject was resumed.

Representative Conway said that if the application of West Virginia came in the proper manner he would be happy to vote for its admission; he regretted, however, that at the beginning of the rebellion a territorial government had not been organized there; Congress could then have passed an enabling act, and the State could be received in a manner to admit of no dispute. The question turned, he declared, on whether the State of Virginia, of which a Mr. Pierpont was Governor, was the lawful State. This he denied. A number of persons without authority met at Wheeling and organized a government. This establishment the President had recognized; one branch of Congress by admitting its Senators had also conceded its legality. These precedents, however, should not be binding on the House. Neither mobs nor mass-meetings, he asserted, make laws under our system, and such bodies had no authority to appoint Mr. Pierpont.

The President intended, Mr. Conway believed, to form similar organizations in all the seceded States. “A policy seems about to be inaugurated,” he added, “looking to an assumption of State powers by a few individuals, wherever a military or other encampment can be effected in any of the rebellious districts. The utter and flagrant unconstitutionality of this scheme—I may say, its radically revolutionary character—ought to expose it to the reprobation of every loyal citizen and every member of this House. It aims at an utter subversion of our constitutional system. Its effect would be to consolidate all the powers of the Government in the hands of the Executive. With the admission of this new State, the President will have substantially created four Senators—two for Virginia and two for West Virginia.” In referring to an extension of this system he declared that the President and a few friends could exercise Federal authority in all those States. “The true policy of this Government, therefore, with regard to the seceded States, is to hold them as common territory wherever and whenever our arms are extended over them. This obviates the terrible dangers which I have alluded to, and is in harmony with the highest considerations of public utility, as well as with sound legal principles.”^[181]

Mr. Conway directed his criticisms against the President because he believed the Executive was first to recognize the new government. The action of the Senate was based upon this precedent, it being assumed that recognition was an Executive function.

Mr. Brown, who introduced the bill at the preceding session, related concisely the essential facts already placed before the reader. He reminded Representative Conway that, though a State could not commit treason, or any other crime, the officials of government could do so; that the legislative powers, being incapable of annihilation, returned to the people; that the spontaneous assembly at Wheeling merely organized and proposed a plan by which regular elections were to be held to fill vacancies caused by the withdrawal of disloyal representatives. A day was fixed, and wherever throughout the State loyal citizens chose to hold an election they could do so. The body thus elected assumed the legislative functions of the people.

In answer to an inquiry he replied that about five counties outside of West Virginia were represented in the Legislature which consented to the erection of the new State, and all the counties in the State were expressly invited to send representatives to the General Assembly. If they were loyal they should have coÖperated; if not, they should have no voice in either the State Legislature or Congress. He referred in his remarks to a telegram which he had that morning received from Wheeling. It contained a resolution passed by the Assembly asking the House of Representatives to approve the bill for the admission of West Virginia, which had been favorably acted upon by the Senate at the preceding session.

“It has been asserted,” he said in conclusion, “and understood in some quarters, that the organization of the government at Wheeling was for the purpose of forming a new State. I am prepared to say that when the convention originally met in Wheeling, although there were a few radicals there who wanted to form a new State without reinstating the old State of Virginia, we voted them down, and commenced the exercise of our original rights as freemen to build up the loyal government of Virginia; and although we designed eventually to ask for this separation, and it was what we anxiously desired, yet we determined to be a law-abiding people, and ask for what we desired through the forms of law.”^[182]

Representative Colfax in giving the reasons which should govern his vote stated that the restored government had been recognized by the Senate, by the President as well as other executive officers, and that the House, by admitting Mr. Segar, elected pursuant to a proclamation of Governor Pierpont, had also recognized the reorganized State. Even the political party in opposition voted for that member’s admission. He also remarked that the new State came knocking at the door for admission with the tiara of freedom on her brow.^[183]

Mr. Olin, who opposed the bill at the preceding session, said: “I shall vote for it now with reluctance. I shall vote for it mainly upon the ground that the General Government, whether wisely or unwisely I will not undertake to say, has encouraged this movement to create a division of the State of Virginia.”^[184] The people of West Virginia, with their experience of the evils which slavery brought on them, should not have permitted that institution to exist for an hour in their new government. For this deficiency, however, the bill provided a partial remedy.

Crittenden observed that it was the party applying for admission that gave its consent to a division of the State.^[185] To this objection Representative Blair replied that there were counties outside of West Virginia which had assented to dismemberment. Other members, who had hitherto been hostile, now consented to support the measure from a conviction that it would weaken rebellion.

Representative Dawes said that the primary elections which sent delegates to the Wheeling convention discussed not a reorganization of the Virginia government, but the formation of an independent State in western Virginia. To accomplish that, he said, the only way was to restore the government of the entire Commonwealth. That government then had two things to do: to set up a new State within itself and secondly to give its consent thereto. This suggestion, he understood, emanated from Washington.^[186]

In reference to the admission, Thaddeus Stevens said:

I do not desire to be understood as being deluded by the idea that we are admitting this State in pursuance of any provisions of the Constitution. I find no such provision that justifies it, and the argument in favor of the constitutionality of it is one got up by those who either honestly entertain, I think, an erroneous opinion, or who desire to justify, by a forced construction, an act which they have predetermined to do.

Now, to say that the Legislature which called this seceding convention was not the Legislature of Virginia, is asserting that the Legislature chosen by a vast majority of the people of a State is not the Legislature of that State. That is a doctrine which I can never assent to. I admit that the Legislature were disloyal, but they were still the disloyal and traitorous Legislature of the State of Virginia; and the State, as a mere State, was bound by their acts. Not so individuals. They are responsible to the General Government, and are responsible whether the State decrees treason or not. That being the Legislature of Virginia, Governor Letcher, elected by a majority of the votes of the people, is the Governor of Virginia—a traitor in rebellion, but a traitorous governor of a traitorous State. Now, then, how has that State ever given its consent to this division? A highly respectable but very small number of the citizens of Virginia—the people of West Virginia—assembled together, disapproved of the acts of the State of Virginia, and with the utmost self-complacency called themselves Virginia.

I hold that none of the States now in rebellion are entitled to the protection of the Constitution, and I am grieved when I hear those high in authority sometimes talking of the constitutional difficulties about enforcing measures against this belligerent power, and the next moment disregarding every vestige and semblance of the Constitution by acts which alone are arbitrary. I hope I do not differ with the Executive in the views which I advocate. But I see the Executive one day saying “you shall not take the property of rebels to pay the debts which the rebels have brought upon the Northern States.” Why? Because the Constitution is in the way. And the next day I see him appointing a military governor of Virginia, a military governor of Tennessee, and some other places. Where does he find anything in the Constitution to warrant that?

If he must look there alone for authority, then all these acts are flagrant usurpations, deserving the condemnation of the community. He must agree with me or else his acts are as absurd as they are unlawful; for I see him here and there ordering elections for members of Congress wherever he finds a little collection of three or four consecutive plantations in the rebel States, in order that men may be sent in here to control the proceedings of this Congress, just as we sanctioned the election held by a few people at a little watering place at Fortress Monroe, by which we have here the very respectable and estimable member from that locality with us. It was upon the same principle.

... I say, then, that we may admit West Virginia as a new State, not by virtue of any provision of the Constitution, but under our absolute power which the laws of war give us in the circumstances in which we are placed. I shall vote for this bill upon that theory, and upon that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding.

The Union, he declared, could never be restored as it was. His consent would never be given to restore it with a constitutional provision protecting slavery. An additional reason for giving his vote in favor of the bill was that there was a provision which would make West Virginia a free State.^[187]

“No right of persons, no right of property,” said Mr. Noell, “no social or domestic affairs, could be regulated or controlled by the people of western Virginia, under the circumstances in which they were placed, without recognizing the ordinance of secession, and acting as a State within the Southern Confederacy.”^[188] This showed both the necessity of reorganizing the government of Virginia and the recognition by Federal authorities of the establishment so constituted.

Mr. Segar declared that eleven of the forty-eight counties to comprise the new State had not participated in its establishment, being represented neither in the reorganized Legislature nor the Wheeling convention; three others were unrepresented both in the House of Delegates and the conventions; ten cast no vote on the constitution and three had interests, social and commercial, which bound them up with the East. Then, too, the people of West Virginia made a fundamental law recognizing slavery; an anti-slavery constitution was to be imposed on them as a condition of admission.^[189]

An able argument by Representative Bingham, of Ohio, who had charge of the bill, concluded the debate on December 10, 1862, when it passed by 96 yeas to 55 nays.^[190]

With the President rested the fate of this important measure; if he vetoed it there would, probably, not be found a two thirds majority in its support. Many members, as will be seen from the preceding abridgment of the debates, yielded only a reluctant support.

On December 23, 1862, Mr. Lincoln sent to his constitutional advisers the following note:

A bill for an act entitled “An act for the admission of the State of West Virginia into the Union and for other purposes” has passed the House of Representatives and the Senate, and has been duly presented to me for my action.

I respectfully ask of each of you an opinion in writing on the following questions, to wit:

1st. Is the said act constitutional?

2d. Is the said act expedient?^[191]

To this request six members of the Cabinet responded by submitting their written opinions. Three—Seward, Stanton and Chase—answered both questions in the affirmative. Bates, Blair and Welles replied in the negative; the remaining place in the Cabinet was vacant owing to the resignation of Caleb B. Smith, Secretary of the Interior, who had been raised to the Bench in Indiana. His successor had not yet been appointed.

Upon the constitutional point Mr. Seward said: “It seems to me that the political body which has given consent in this case is really and incontestably the State of Virginia. So long as the United States do not recognize the secession, departure, or separation of one of the States, that State must be deemed as existing and having a constitutional place within the Union, whatever may be at any moment exactly its revolutionary condition. A State thus situated cannot be deemed to be divided into two or more States merely by any revolutionary proceeding which may have occurred, because there cannot be, constitutionally, two or more States of Virginia.... The newly organized State of Virginia is therefore, at this moment, by the express consent of the United States, invested with all the rights of the State of Virginia, and charged with all the powers, privileges, and dignity of that State. If the United States allow to that organization any of these rights, powers, and privileges, it must be allowed to possess and enjoy them all. If it be a State competent to be represented in Congress and bound to pay taxes, it is a State competent to give the required consent of the State to the formation and erection of the new State of West Virginia within the jurisdiction of Virginia.”

“Upon the question of expediency,” he wrote, “I am determined by two considerations. First. The people of Western Virginia will be safer from molestation for their loyalty, because better able to protect and defend themselves as a new and separate State than they would be if left to demoralizing uncertainty upon the question whether, in the progress of the war, they may not be again reabsorbed in the State of Virginia, and subjected to severities as a punishment for their present devotion to the Union. The first duty of the United States is protection to loyalty wherever it is found. Second. I am of opinion that the harmony and peace of the Union will be promoted by allowing the new State to be formed and erected, which will assume jurisdiction over that part of the valley of the Ohio which lies on the south side of the Ohio River, displacing, in a constitutional and lawful manner, the jurisdiction heretofore exercised there by a political power concentrated at the head of the James River.”^[192]

Mr. Chase, in discussing the constitutional question, said in part: “The Madison Papers clearly show that the consent of the Legislature of the original State was the only consent required to the erection and formation of a new State within its jurisdiction. That consent having been given, the consent of the new State, if required, is proved by her application for admission.... The Legislature of Virginia, it may be admitted, did not contain many members from the eastern counties; it contained, however, representatives from all counties whose inhabitants were not either rebels themselves, or dominated by greater numbers of rebels. It was the only Legislature of the State known to the Union. If its consent was not valid, no consent could be. If its consent was not valid, the Constitution, as to the people of West Virginia, has been so suspended by the rebellion that a most important right under it is utterly lost.”

Relative to the question of expediency, he writes: “The act is almost universally regarded as of vital importance to their welfare by the loyal people most immediately interested, and it has received the sanction of large majorities in both Houses of Congress. These facts afford strong presumptions of expediency.... It may be said, indeed, that the admission of West Virginia will draw after it the necessity of admitting other States under the consent of extemporized legislatures assuming to act for whole States, though really representing no important part of their territory. I think this necessity imaginary. There is no such legislature, nor is there likely to be. No such legislature, if extemporized, is likely to receive the recognition of Congress or the Executive.”^[193]

Mr. Stanton responded more briefly than either Secretary Seward or Secretary Chase, observing, among other things: “I have been unable to perceive any point on which the act of Congress conflicts with the Constitution. By the erection of the new State, the geographical boundary heretofore existing between the free and slave States will be broken, and the advantage of this upon every point of consideration surpasses all objections which have occurred to me on the question of expediency. Many prophetic dangers and evils might be specified, but it is safe to suppose that those who come after us will be as wise as ourselves, and if what we deem evils be really such, they will be avoided. The present good is real and substantial, the future may safely be left in the care of those whose duty and interest may be involved in any possible future measures of legislation.”^[194]

One or two excerpts from the opinion of Mr. Welles will indicate the course of his argument in the negative: “Under existing necessities, an organization of the loyal citizens, or of a portion of them, has been recognized, and its Senators and Representatives admitted to seats in Congress. Yet we cannot close our eyes to the fact that the fragment of the State which, in the revolutionary tumult, has instituted the new organization, is not possessed of the records, archives, symbols, traditions, or capital of the Commonwealth. Though calling itself the State of Virginia, it does not assume the debts and obligations contracted prior to the existing difficulties. Is this organization, then, really and in point of fact anything else than a provisional government for the State? It is composed almost entirely of those loyal citizens who reside beyond the mountains, and within the prescribed limits of the proposed new State. In this revolutionary period, there being no contestants, we are compelled to recognize the organization as Virginia. Whether that would be the case, and how the question would be met and disposed of, were the insurrection this day abandoned, need not now be discussed. Were Virginia, or those parts of it not included in the proposed new State, invaded and held in temporary subjection by a foreign enemy instead of the insurgents, the fragment of territory and population which should successfully repel the enemy and adhere to the Union would doubtless, during such temporary subjection, be recognized, and properly recognized, as Virginia. When, however, this loyal fragment goes farther, and not only declares itself to be Virginia, but proceeds by its own act to detach itself permanently and forever from the Commonwealth, and to erect itself into a new State within the jurisdiction of the State of Virginia, the question arises whether this proceeding is regular, legal, right, and, in honest good faith, conformable to, and within the letter and spirit of the Constitution.... Congress may admit new States into the Union; but any attempt to dismember or divide a State by any forced or unauthorized assumption would be an inexpedient exercise of doubtful power to the injury of such State. Were there no question of doubtful constitutionality in the movement, the time selected for the division of the State is most inopportune. It is a period of civil commotion, when unity and concerted action on the part of all loyal citizens and authorities should be directed to a restoration of the Union, and all tendency towards disintegration and demoralization avoided.”^[195]

Mr. Blair, likewise in the negative, added little of importance to what Secretary Welles had adduced on that side.

The first and rather hastily formed opinion of Attorney-General Bates has already been given together with an account of the circumstances attending its publication; upon longer reflection he did not greatly change the ground of his original convictions and in an elaborate discussion still reasoned in the negative.^[196]

Between these evenly balanced and conflicting opinions of his advisers Mr. Lincoln argued as follows:

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. We cannot well deny that it is such, unless we do so upon the outside knowledge that the body was chosen at elections in which a majority of the qualified voters of Virginia did not participate. But it is a universal practice in the popular elections in all these States to give no legal consideration whatever to those who do not choose to vote, as against the effect of the votes of those who do choose to vote. Hence it is not the qualified voters, but the qualified voters who choose to vote that constitute the political power of the State. Much less than to non-voters should any consideration be given to those who did not vote in this case, because it is also matter of outside knowledge that they were not merely neglectful of their rights under and duty to this government, but were also engaged in open rebellion against it. Doubtless among these non-voters were some Union men whose voices were smothered by the more numerous secessionists; but we know too little of their number to assign them any appreciable value. Can this government stand, if it indulges constitutional constructions by which men in open rebellion against it are to be accounted, man for man, the equals of those who maintain their loyalty to it? Are they to be accounted even better citizens, and more worthy of consideration, than those who merely neglect to vote? If so, their treason against the Constitution enhances their constitutional value. Without braving these absurd conclusions, we cannot deny that the body which consents to the admission of West Virginia is the legislature of Virginia. I do not think the plural form of the words “legislatures” and “States” in the phrase of the Constitution “without the consent of the legislatures of the States concerned,” etc., has any reference to the new State concerned. That plural form sprang from the contemplation of two or more old States contributing to form a new one. The idea that the new State was in danger of being admitted without its own consent was not provided against, because it was not thought of, as I conceive. It is said, the devil takes care of his own. Much more should a good spirit—the spirit of the Constitution and the Union—take care of its own. I think it cannot do less and live.

But is the admission into the Union of West Virginia expedient? This, in my general view, is more a question for Congress than for the Executive. Still I do not evade it. More than on anything else, it depends on whether the admission or rejection of the new State would, under all the circumstances, tend the more strongly to the restoration of the national authority throughout the Union. That which helps most in this direction is the most expedient at this time. Doubtless those in remaining Virginia would return to the Union, so to speak, less reluctantly without the division of the old State than with it; but I think we could not save as much in this quarter by rejecting the new State, as we should lose by it in West Virginia. 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 very severe trials. We have so acted as to justify their hopes, and we cannot fully retain their confidence and coÖperation if we seem to break faith with them. In fact, they could not do so much for us, if they would. Again, the admission of the new State turns that much slave soil, to free, and thus is a certain and irrevocable encroachment upon the cause of the rebellion. The division of a State is dreaded as a precedent. But a measure made 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.^[197]

The bill passed by the House on the 10th was approved by the President on the 31st of December, 1862; after naming the forty-eight counties to constitute the new State the act declares, among other things, that since the convention framed the constitution for West Virginia its people had expressed a wish to change section seven of the eleventh article by inserting the following in its place, viz.: “The children of slaves born within the limits of this State after the fourth day of July, eighteen hundred and sixty-three, shall be free; and that all slaves within the said State who shall, at the time aforesaid, be under the age of ten years, shall be free when they arrive at the age of twenty-one years; and all slaves over ten and under twenty-one years, shall be free when they arrive at the age of twenty-five years; and no slave shall be permitted to come into the State for permanent residence therein.”^[198]

The constitution thus amended was unanimously ratified by the convention, which on a summons of the commissioners reassembled February 18, 1863, and also by the people, to whom it was submitted at an election held on May 26 following.^[199] President Lincoln on April 20 issued a proclamation declaring that the prescribed conditions having been complied with, the constitution would go into force in sixty days from that date; the formation of the new State was complete and it became a member of the Union on the 20th of June, 1863.^[200]

Daniel Webster, in an address delivered thirteen years before, at the laying of the corner-stone of an addition to the Federal Capitol, had asked: “And ye men of Western Virginia, ... what benefit do you propose to yourself by disunion? If you ‘secede,’ what do you ‘secede’ from, and what do you ‘accede’ to? Do you look for the current of the Ohio to change, and to bring you and your commerce to the tide-waters of the eastern rivers? What man in his senses can suppose that you would remain part and parcel of Virginia a month after Virginia should have ceased to be part and parcel of the Union?”^[201] The remarkable prediction of the great orator was fulfilled; his inspired vision had pierced the future. The Old Dominion had separated forever along the line of the Alleghanies.

Before relating the subsequent history of the restored government, it is proper to notice a few important events in the early career of the new Commonwealth. On January 31, 1863, an act passed the General Assembly of Virginia giving consent to the transfer of Berkeley County to the State of West Virginia. The preamble of this act affirms that its people desired to be annexed to the proposed State. The question of transfer, however, was to be decided by a majority of voters at an election to be held on the fourth Thursday of May. If, however, the polls could not be safely opened on that day, the Governor was empowered to postpone the election by proclamation. The commissioners who superintended the polling were to certify the results to the Executive. On February 4 succeeding another act made it lawful for voters in certain districts including twenty-three counties to declare, at a general election to be held on the fourth Thursday of May, whether these specified counties should be annexed to West Virginia. The consent of the Legislature of that State was, of course, made a condition of the transfer, after which the jurisdiction of Virginia over such counties was to cease.

West Virginia statutes of August 5 and November 2, 1863, in words, admit Berkeley and Jefferson counties, and they have ever since been under her jurisdiction. When admitted into the Union it was with a provision in her constitution that she might acquire additional territory; therefore Congress gave its consent in advance and it was not afterwards withdrawn. In brief, West Virginia accepted the transfer and it was authorized by the General Assembly of the Commonwealth of Virginia.^[202]

State officers were elected on May 28, when the following unconditional Union candidates, receiving a vote of about 30,000, were chosen without opposition: Arthur I. Boreman, Governor; J. E. Boyers, Secretary of State; Campbell Tarr, Treasurer; Samuel Crane, Auditor; A. B. Caldwell, Attorney-General; also three judges of a court of appeals.

The inauguration of the new State, which was marked by imposing ceremonies, took place at Wheeling, the capital, on June 20, 1863. Mr. Pierpont, the retiring executive of reorganized Virginia, briefly addressed the assembled citizens and urged them not to forsake the flag; he then introduced his successor, whom he pronounced “true as steel.” Governor Boreman in his short speech said that the only terms of peace were that the rebels should lay down their arms and submit to the regularly constituted authority of the United States.

The Legislature of West Virginia convened on the same day. Waitman T. Willey and P. G. Van Winkle were elected United States Senators.^[203] In his first message Governor Boreman recommended to the General Assembly the immediate passage of laws effectually to extirpate slavery, and also the enactment of a law that no man should be permitted to vote or to hold office until he had taken the oath of allegiance.

In the Presidential election of 1864, the first held since the adoption of the Constitution in which any State deliberately neglected to appoint electors, 33,680 votes were polled in West Virginia; of this number the Union ticket received 23,223 and the McClellan electors 10,457.^[204] Elections had also been held in Louisiana and Tennessee by authority of the governments established there under Mr. Lincoln’s plan of reconstruction; the Republican majority in Congress, however, denied the validity of the organizations in the two States last named and refused to count the votes which they presented. This question will be fully considered when we come to trace the development of the Congressional plan. At the regular State election Governor Boreman was chosen without opposition, receiving 19,098 votes. With the subsequent history of the new Commonwealth the subject of reconstruction is not much concerned.

By the formation of an independent Commonwealth the counties beyond the Alleghanies were withdrawn from the jurisdiction of the restored government, which after the inaugural ceremonies at Wheeling selected for its capital the city of Alexandria, where it continued till May 25, 1865, to exercise its functions in those parts of the Old Dominion within the lines of the Union army. A State government was promptly organized by the election of a legislature and of executive officers. In this establishment the loyal eastern counties participated. Mr. Pierpont was elected Governor for the term of three years beginning January 1, 1864. A Lieutenant-Governor, a Secretary of State, a Treasurer, an Auditor, an Adjutant-General and an Attorney-General were also chosen.

The Governor in his message to the Assembly mentioned slavery as doomed, and recommended the calling of a convention so to amend the State constitution as to abolish the institution forever. In compliance with this suggestion the Legislature, on December 21, 1863, passed an act directing a convention to be held at Alexandria on the 13th of February succeeding to amend the constitution and prohibit slavery in the counties of Accomac, Northampton, Princess Ann, Elizabeth City and York (including the cities of Norfolk and Portsmouth). These with Berkeley County had been excepted from the operation of the Emancipation Proclamation.

None but loyal citizens who had not assisted the insurgents since January 1, 1863, were allowed to take part, and those whose right to vote might be challenged were required to swear support of the Constitution and to declare that they had not in any way given aid or comfort to the enemy.

The convention, consisting of sixteen members, assembled in the new capital at the appointed time and remained in session till April 11 following, when a constitution was adopted.^[205] Various amendments, relating chiefly to the regulation of the elective franchise and to the abolition of slavery, were discussed and agreed upon. The work of this miniature convention was ordered to be proclaimed without a submission to the people. It was not, however, recognized by Congress, though the civil government which authorized its formation was permitted to continue under it, provisionally only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, or supersede.

Though the bill for the admission of West Virginia passed both Houses, yet Congress was by no means unanimous in giving its consent to that measure. In the debates, of which a synopsis has been given, the hostility of Thaddeus Stevens and other influential members is scarcely concealed. This opposition to executive policy slowly gathered strength, and by 1863 had become formidable enough to defeat the admission of Representatives from the Alexandria government. The Senators, however, remained, Lemuel J. Bowden till his death, January 2, 1864, when his successor was refused admission, and John S. Carlile till the expiration of his term in 1865.

On the assembling of the 38th Congress, which commenced its first session December 7, 1863, Joseph E. Segar, Lucius H. Chandler and Benjamin M. Kitchen appeared as Representatives from Virginia. On May 17 succeeding Mr. Dawes from the Committee of Elections reported a resolution to the effect that Joseph E. Segar, from the First District of Virginia, was not entitled to a seat in that Congress. The case of Mr. Chandler, regarded as precisely similar, was considered at the same time.

The district which Mr. Segar claimed to represent was composed of twenty counties; of these, Chairman Dawes asserted, only four participated in the election. Polling places were not opened in any other part of the district, the Confederate authorities being in possession of the remaining counties. As there could be no free exercise of the franchise in this situation Mr. Segar, it was contended, was not properly chosen, and, therefore, was not entitled to a seat. The vote cast, though not accurately ascertained, was estimated at 1,677, of which the claimant received 1,300. Because of his loyalty and the sacrifices he had made, the Committee regretted the necessity of deciding against him.

Mr. Segar, speaking in his own behalf, reminded the House that in a preceding election, when he received 559 out of 1,018 votes polled in three counties, he was admitted after a delay of seven or eight weeks; but when he was sent by a larger constituency and came as the choice of four counties he was informed that he had no right to a seat, and some of his colleagues who favored his admission in 1862 voted to exclude him. The Committee’s report, he asserted, admitted the existence of such a State as Virginia. He asked Chairman Dawes a rather embarrassing question when he inquired how a State could have two Senators and no Representative in Congress. In conclusion he pronounced restored State organization and gradual accretion to be the best method of reconstruction.

Concerning the title of Mr. Chandler, from the Second Congressional District, Chairman Dawes stated that of the 779 votes polled in the election 778 were cast for the claimant. For the same reason as in the case of Mr. Segar only a small part of that District was free to participate in the election, and nearly all the votes were polled in the city of Norfolk. The committee reported against his admission on the same ground taken in Mr. Segar’s case.

Chandler, who was permitted to state his case to the House, cited a resolution introduced by his former school-mate, Owen Lovejoy, the well-known abolitionist, authorizing the names of the three Virginia claimants to be enrolled as Representatives. That resolution, however, was tabled and their credentials referred to the Committee of Elections.

In 1860 the Union vote in his District was only 6,712; of that number 2,900, he said, were in Norfolk and Portsmouth; the latter city had cast more votes against secession than the remainder of his District. Great numbers of loyal men, however, left there at the beginning of the war. Electors being under no obligation to vote may allow an election to go by default when one citizen could return a member to Congress. Territorially restored Virginia was larger than Delaware and possessed twice the area of Rhode Island.

The case of Benjamin M. Kitchen, on which the Committee had previously made an adverse report, differed from those of the other two claimants in that he had received nearly all of his vote in Berkeley County, which possessed a sort of wandering character, for it was somewhat uncertain whether it was under the jurisdiction of the new or the old State. What action was taken on the Committee’s report does not appear, but it may be inferred from a facetious remark of one member who observed that, like Segar and Chandler, Kitchen had been privileged to retire to private life. The two former were refused admission by the decided vote of 94 to 23.

Besides endeavoring to win back the wavering, Governor Pierpont was occupied in taking measures for the relief of the distressed. In the vicinity of Norfolk and Portsmouth there was a large number of destitute persons whose natural supporters were still following the declining fortunes of the Confederacy or had been killed in its service. While it was universally agreed that their necessities should be relieved, the military and civil authorities were in conflict as to the mode of providing for them. The President in his efforts to establish amicable relations between the officers of the army and those of the State invoked the assistance of the Governor. As the restored Commonwealth could not be consistently recognized while its capital was in a state of blockade the President by proclamation, September 24, 1863, declared that the interdiction of trade with the port of Alexandria had ceased.

General Butler with headquarters at Fortress Monroe took command of the Department of Virginia and North Carolina November 2, 1863. His predecessors, he asserted, had endeavored to recruit a regiment of Virginians; but after several months of energetic trial their efforts were abandoned. As eastern Virginia claimed to be a loyal and fully organized State, Butler renewed the attempt, whereupon Governor Pierpont protested vigorously. One and a half companies were all the recruits that the Commonwealth would furnish, and these, Butler asserts, were employed to defend lighthouses and protect Union inhabitants from outrages at the hands of their disloyal neighbors.^[206] This experience, it may be supposed, did not tend to raise the Alexandria government in the esteem of the Department Commander. We find accordingly that differences soon sprang up between the civil and military authorities. An attempt to regulate the liquor traffic in Norfolk and vicinity was the occasion of an open rupture. Civil officers continued to collect the payments imposed by law on those engaged in the business; the military power, to keep the traffic under better control, undertook to give to a few firms a monopoly of the importation. In this situation many small retailers refused to pay their licenses and were indicted in the local courts. To foil this purpose, General Shepley issued, June 22, 1864, an order providing that “on the day of the ensuing municipal election in the city of Norfolk a poll will be opened at the several places of voting, and separate ballot-boxes will be kept open during the hours of voting, in which voters may deposit their ballots, ‘yes’ or ‘no,’ upon the following question: Those in favor of continuing the present form of municipal government during the existence of military occupation will vote ‘yes.’ Those opposed to it will vote ‘no.’”

Governor Pierpont resented this action and promptly issued a proclamation protesting against it as a revolutionary proceeding in violation of the Federal Constitution, adding, “No loyal citizen, therefore, is expected to vote on the proposed question.” In a vigorous pamphlet discussing the “abuses of military power” he repeated his criticism.

Butler at this point took up the cudgels for his subordinate and in a general order, dated June 30, 1864, discussed the incident at some length. Pierpont was alluded to as “a person who calls himself Governor,” and as one “pretending to be the head of the restored government of Virginia, which government is unrecognized by the Congress, laws, and Constitution of the United States.” The order further recited that as the loyal citizens of Norfolk had voted against the further trial of the experiment of municipal government “therefore it is ordered that all attempts to exercise civil office and power, under any supposed city election, within the city of Norfolk and its environs, must cease, and the persons pretending to be elected to civil offices at the late election, and those heretofore elected to municipal offices since the rebellion, must no longer attempt to exercise such functions; and upon any pretense or attempt so to do, the military commandant at Norfolk will see to it that persons so acting are stayed and quieted.”

A memorial to Mr. Lincoln enlisted his sympathy and secured for Pierpont the assistance of Attorney-General Bates, who on July 11 wrote the President a long official letter setting forth his sense of the serious military encroachment by General Butler upon civil law and the authority of Mr. Pierpont as Governor of Virginia. The Department Commander replied in a communication of forty pages in sharp criticism of the Alexandria government, which he characterized as a “useless, expensive, and inefficient thing, unrecognized by Congress, unknown to the Constitution of the United States, and of such character that there is no command in the Decalogue against worshiping it, being the likeness of nothing in the heavens above, the earth beneath, or the waters under the earth.”

The Attorney-General, who was accused of a design to create a conflict between the civil and the military power, also came in for a share of rather violent criticism. In this altercation each party accused the other of being assisted by only secessionists and traitors.^[207]

It was relative to this controversy that Mr. Lincoln, December 21, 1864, addressed to General Butler the following communication:

On the 9th of August last, I began to write you a letter, the enclosed being a copy of so much as I then wrote. So far as it goes it embraces the views I then entertained and still entertain.

A little relaxation of the complaints made to me on the subject, occurring about that time, the letter was not finished and sent. I now learn, correctly I suppose, that you have ordered an election, similar to the one mentioned, to take place on the eastern shore of Virginia. Let this be suspended at least until conference with me and obtaining my approval.

Your paper of the —— about Norfolk matters, is received, as also was your other, on the same general subject, dated, I believe, some time in February last. This subject has caused considerable trouble, forcing me to give a good deal of time and reflection to it. I regret that crimination and recrimination are mingled in it. I surely need not to assure you that I have no doubt of your loyalty and devoted patriotism; and I must tell you that I have no less confidence in those of Governor Pierpont and the Attorney-General. The former—at first as the loyal governor of all Virginia, including that which is now West Virginia, in organizing and furnishing troops, and in all other proper matters—was as earnest, honest, and efficient to the extent of his means as any other loyal governor.

The inauguration of West Virginia as a new State left to him, as he assumed, the remainder of the old State; and the insignificance of the parts which are outside of the rebel lines, and consequently within his reach, certainly gives a somewhat farcical air to his dominion, and I suppose he, as well as I, has considered that it can be useful for little else than as a nucleus to add to. The Attorney-General needs only to be known to be relieved from all question as to loyalty and thorough devotion to the national cause, constantly restraining as he does my tendency to clemency for rebels and rebel sympathizers. But he is the law-officer of the Government, and a believer in the virtue of adhering to law.

Coming to the question itself, the military occupancy of Norfolk is a necessity with us. If you, as department commander, find the cleansing of the city necessary to prevent pestilence in your army; street-lights and a fire department necessary to prevent assassinations and incendiarism among your men and stores; wharfage necessary to land and ship men and supplies; a large pauperism, badly conducted at a needlessly large expense to the government; and find that all these things, or any of them, are not reasonably well attended to by the civil government, you rightfully may and must take them into your own hands. But you should do so on your own avowed judgment of a military necessity, and not seem to admit that there is no such necessity by taking a vote of the people on the question.

Nothing justifies the suspending of the civil by the military authority but military necessity; and of the existence of that necessity, the military commander, and not a popular vote, is to decide. And whatever is not within such necessity should be left undisturbed.

In your paper of February you fairly notified me that you contemplated taking a popular vote, and, if fault there be, it was my fault that I did not object then, which I probably should have done had I studied the subject as closely as I have since done. I now think you would better place whatever you feel is necessary to be done on this distinct ground of military necessity, openly discarding all reliance for what you do on any election. I also think you should so keep accounts as to show every item of money received and how expended.

The course here indicated does not touch the case when the military commander, finding no friendly civil government existing, may, under sanction or direction of the President, give assistance to the people to inaugurate one.^[208]

On the same general subject the President one week later wrote General Butler this brief note:

I think you will find that the provost-marshal on the eastern shore has, as by your authority, issued an order, not for a meeting, but for an election. The order, printed in due form, was shown to me, but as I did not retain it, I cannot give you a copy. If the people, on their own motion, wish to hold a peaceful meeting, I suppose you need not hinder them.^[209]

It has elsewhere been observed that a Legislature representing what remained of the restored government was chosen at the time of Mr. Pierpont’s election. This body, however, was but the merest shadow of the Assembly of that once proud Commonwealth. Seven Delegates responded to the roll call when the House convened in December, 1863. They adjourned from day to day and on the 9th of that month organized with eight members in the popular branch. Precisely how many Senators composed the upper House does not appear in any notice of their proceedings accessible to the writer; the aggregate number in both chambers, however, is said not to have exceeded 16.^[210] This estimate is probably correct; for in the election, February 4, 1864, of a Secretary of State and a Treasurer the total vote on joint ballot was only 14.^[211]

It is probable that neither Mr. Lincoln nor Governor Pierpont regarded this organization as anything more than a nucleus around which the loyal elements might rally. Both Congress and the military authorities, however, treated it with scant courtesy. It is not matter of surprise, therefore, that memorials were presented to the United States Senate petitioning for the substitution of a military for this feeble civil government. To offset this movement remonstrances from citizens of Alexandria and from citizens of Loudoun County were offered, January 17, 1865, by Senator Willey, of West Virginia. All the memorials of both classes were referred to the Committee on Territories.

By Mr. Willey credentials of Hon. Joseph Segar, Senator-elect from Virginia, were presented, February 17, 1865, to supply the vacancy caused by the death of Lemuel J. Bowden. Mr. Willey moved that the credentials be read and placed on the files, and that the oath of office be administered to Mr. Segar. The credentials were read and immediately after Mr. Sumner moved that the papers be referred to the Committee on the Judiciary. Senator Willey opposed the reference. The credentials, he believed, were proper on their face; they came to the Senate in due form under the seal of the State of Virginia. Mr. Segar was the accredited successor of Mr. Bowden, who died while a member of Congress. If Mr. Bowden was entitled to a seat his successor was likewise entitled if his credentials were regular and correct.

Mr. Cowan also opposed the reference because he did not think it wise to abandon the policy hitherto pursued in dealing with loyal minorities in the rebellious States. He would be sorry, he said, if these States were repulsed when they were desirous to do all they could to achieve the very end for which the present tremendous struggle was taking place. When Mr. Bowden came to take his seat no such objection was made. A question by Senator Hale developed the fact, however, that Mr. Bowden presented himself before the vote was taken on the admission of West Virginia.

Trumbull believed that a reference of the credentials, just as in the Arkansas case, would bring up the question. Senator Howard, who favored a reference, thought that the entire question of the right of Virginia to be represented in Congress should be gone into. He would thank the committee for a concise account of all the proceedings connected with the election of Mr. Segar and his colleague. He asked whether a State like Virginia, in armed rebellion, could have Senators on that floor.

Mr. Saulsbury pointed out the change that had come over the judgment of the Senate. When Messrs. Willey and Carlile appeared there was, he said, but a corporal’s guard who opposed their right to seats, because Virginia was in rebellion, and it was then held by the minority that Senators should represent the sovereignty of their States. Those who were then most zealous for the admission of the gentlemen claiming to represent Virginia had become most vehement in their opposition to the admission of Mr. Segar.

Senator McDougall believed that to refer the proposition to the committee would be to bury it, and no resurrection, he said, had been proclaimed for any such thing. He had his impressions and was as well prepared to discuss the question then as at any time. Virginia, according to his understanding of the philosophy of the Constitution, was a State of the Union. He believed the Senator-elect, by reason of his credentials, could take the oath, though that was not conclusive of his right to a seat in the Senate.

Henry Wilson, of Massachusetts, believed that Congress because of its action for three years was bound to recognize the existence of both the Governor and Legislature of Virginia. He was disposed, however, to support the motion of his colleague, Charles Sumner, as well as the amendment thereto which authorized the committee to inquire into the election, returns and qualifications in the case of the claimant. Certain parts of Virginia, exempted by the President’s proclamation, were not in rebellion. Every square mile additional over which Federal authority was restored came by the terms of that proclamation into the same condition.

Mr. Willey asserted that the Legislature sneeringly referred to as “the Common Council of Alexandria” represented 216,000 loyal people. He believed that county after county, as fast as they were relieved from the power of the rebellion, would come to the support of the loyal nucleus at Alexandria. It would place the Senate, he said, in a singular position to repulse the claimant while his State was represented by another Senator [Carlile].

Senator Sherman stated that Mr. Segar’s credentials purported to show that he had been elected a member of the Senate on the 8th of December and that they bore date of December 12, 1864. Therefore he had slept for sixty or seventy days on his right to a seat which would, at any rate, expire on the 4th of March. The succeeding Congress, he said, would have ample time to decide the question, for, no doubt, at that time a gentleman claiming to be a Senator from Virginia would present himself. Then it could be deliberately determined. His motion to lay the credentials on the table prevailed by a vote of 29 to 13.^[212] When this action was taken Carlile was among the eight absentees.

Pursuant to a proclamation of the President the Senate assembled at noon of March 4 in executive session. Five days later the question of admitting Senators from Virginia came again before the Senate on presentation by Mr. Doolittle of the credentials of Hon. John C. Underwood as Senator-elect from that State for six years from the 4th of March. His credentials were read and after some discussion it was agreed to postpone their consideration as well as those of Mr. Segar until the following session. Henderson and Doolittle spoke in favor of the early recognition by Congress of the local governments in those States which had been brought partly under Federal power. The account of Virginian affairs will be resumed in the final chapter.