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:
Gentlemen of the Cabinet: