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.