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]]