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The people of the forty counties comprising the highlands of the State did not join with those of the lowlands when Virginia seceded, but organized a loyal government, at Wheeling, in June, 1861. Francis H. Pierpoint was chosen Governor; a legislature was formed; United States Senators were chosen, and all the machinery of a loyal State set in motion. Acting both as convention and legislature, the Wheeling delegates, by an ordinance, on the twentieth of August, provided for the organization of a new State. The question was submitted to the people, who answered it, in October, by an overwhelming affirmative vote. On the twenty-sixth of November, the delegates chosen assembled at Wheeling, and in convention during the next sixty days, prepared a constitution of government for the new State; to which the name, West Virginia, was given. The people of the forty counties within the new jurisdiction, ratified the work of the convention in a special election, in April, and the fate of the new Commonwealth was left to Congress. The election on April third, 1862, resulted in the adoption of the Constitution 3

The petition of the people of West Virginia for admission into the Union raised questions for the settleSamuel Shepherd & Co., for Ritchie & Cook, 1830. Also, Journal Acts, and Proceedings of a General Convention of the Commonwealth of Virginia Assembled in Richmond on Monday, the Fifth Day of October, in the Year of Our Lord, One Thousand Eight Hundred and Twenty-nine. Richmond: Printed by Thomas Ritchie, 1829. James Monroe was President of this Convention, and among its members were James Madison, John Marshall, John Tyler, John Y. Mason, John Randolph, Phillip P. Barbour, Abel P. Upshur. Its debates were cited in Southern Conventions for the next twenty years.

1 18,408 for, and 781 against, the proposition.

2 The Convention assembled at Wheeling November 26, 1861, and adjourned February 18, 1862.

8 By 18,862 votes in its favor, and 514 against it.

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ment of which there was no precedent. Kentucky, Tennessee and Maine had been parts of older States. Vermont, while claiming to be a free and independent State, had been claimed by New Hampshire, Massachusetts and New York, but the admission of these four States had been in times of peace. The Constitution of the United States had been observed and Congress and the legislatures of the States concerned, and they included Virginia and North Carolina, had given their consent to the formation of the new Commonwealths. But, in 1861, the question of what constituted the State of Virginia might be variously answered. The supporters of the Southern Confederacy would have said that the true area of Virginia was the same as it had been since the admission of Kentucky; but Union men might answer that the State consisted in its loyal population, and that the government of Virginia convened at Wheeling, which the President had recognized and was supporting, was its true government. Therefore its assent to the division of the State complied with the provision of the national Constitution.

The bill for the admission of West Virginia passed Congress on the thirty-first of December, 1862. The Constitution of the new State provided that no slave should be brought, or free person of color be permitted to come, into it for permanent residence. This provision was eliminated during the progress of the bill through Congress; and, in accordance with the wishes of the people of the State, Congress substituted a clause for the gradual emancipation of slaves, on and after the fourth of July, 1863. All within the State, under the age of ten years, at the time, should be free, at the age of twenty-one; all over ten, and under twenty-one, should be free, at the age of twenty-five; no slave should be permitted to come into the

1 Constitution of West Virginia, 1861, Article XI, Section 7.

CONSTITUTIONALITY.

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State for permanent residence. The clause excluding slaves recalls the famous provision, originating with Benton and inserted in the Missouri constitution of 1820, for excluding free persons of color from that State.2 West Virginia would now exclude slaves. Its constitution was a sign of the changes of forty years. The State of West Virginia should be admitted by proclamation.

This proviso necessarily led the President to a most careful examination of the constitutionality and the expediency of the law. On this point the Cabinet was divided, 3 but the decision rested with the President. His opinion, which doubtless hereafter will be construed as a precedent, resulting as it did, at a critical time, in the admission of a new State, formerly slaveholding, but now abolishing slavery, stands as a practical solution of a new problem and at the same time as a factor of great moment in the final overthrow of the institution. “The consent of the legislature of Virginia," wrote the President, "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 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,

1 Statutes at Large, XII, 634.

2 For account of the Missouri controversy of 1820, see my Constitutional History of the American People, 1776-1850, I, Chapter X.

3 For the opinions of its members, see Nicolay and Hay's Lincoln, VI, 300-309.

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CONSTITUTIONALITY.

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.” Could the National Government stand, if it indulge constitutional constructions by which men in open rebellion against it were to be accounted, man for man, the equals of those who maintained their loyalty to it? Were they to be accounted even better citizens, and more worthy of consideration, than those who merely neglected to vote? If so, their treason against the Constitution enhanced their constitutional value. Without braving these absurd conclusions, it could not be denied that the body which consented to the admission of West Virginia was the legislature of Virginia. Mr. Lincoln did 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,"1 had any reference to the case before him. That plural form used, he believed sprang from the contemplation of two or more old States contributing to form a new one. The idea that a new State was in danger of being admitted without its own consent was not provided against, because, as he conceived, it was not thought of. The Union must take care of its own. It could not do less and live.

The question of the expediency of admitting West 1 Art. IV, Sec. 3, Cl. 1.

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Virginia was, in the President's opinion, more a question for Congress than for the Executive. Yet he did not evade it. More than anything else, it depended 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 helped most in this direction was the most expedient at this time. Doubtless those in the remaining portion of Virginia would return to the Union less reluctantly without the division of the old State than with it, but he thought that the nation could not save as much in this quarter by rejecting the new State as it would lose by it in West Virginia. The aid of West Virginia could not be spared in the struggle going on, much less could the Nation afford to have her people in opposition. Her brave and good men, he said, regarded her admission into the Union as a matter of life and death. They had been true to the Union under very severe trials. The Nation had so acted as to justify their hopes, and it could not fully retain their confidence and co-operation if it seemed to break faith with them. Again, the admission of the new State turned that much slave soil into free, and thus would be a certain and irrevocable encroachment upon the cause of rebellion. The division of a State might be dreaded as a precedent, but a measure made expedient by war is no precedent for times of peace. It had been said that the admission of West Virginia would be secession, and be tolerated only because it was secession carried out by the national party. By whatever name it was called there was still difference enough between secession against the Constitution and secession in favor of the Constitution. For these reasons Mr. Lincoln believed the admission of

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