A friend of mine posed a question for discussion the other night about the constitutionality of the statehood of West Virginia during the Civil War. I have thought about this subject periodically in the past and I thought that it might be a good topic to discuss and I will attempt to do so now.
Before we go into the subject matter, I think that it might be a good idea to look at the demographics of both West Virginia and Virginia at the time. It is my belief that both states have very different peoples and in my view they were two very distinct states long before West Virginia seceded and formed their own separate state.
For simplicity, I will refer to West Virginia as western Virginia and Virginia as eastern Virginia prior to the actual split.
Eastern Virginia can trace it’s origins to the Colony of Jamestown which was the first English settlement that was established in 1607. Jamestown is on the banks of the James River and was named for King James I.
The topography of eastern Virginia was perfect for farming and Europe at the time had an unquenchable thirst for tobacco.
This area was settled primarily by the English and to solve the labor shortage a large number of African slaves were imported and a lot of indentured servants were also utilized to eliminate the labor shortage. At one time, 75% of all the settlers of eastern Virginia were indentured servants.
Needless to say this built up a class structure similar to that in England. You had the upper classes, the gentry who owned the tobacco plantations and the lower classes who were the laborers. Below that were the slaves.
The gentry of eastern Virginia are all names that we know like Washington, Jefferson, Lee and Madison. There were more but you get the idea.
These families were all of English descent, were members of the Church of England and the entire society was basically an extension of the class based society back in England.
According to the 2000 US Census, Virginia still has 22% of its citizens that claim English ancestry even though the demographics have changed a lot over the years.
The area of western Virginia is completely different. The geography is significantly different than eastern Virginia. Western Virginia is located entirely within the Appalachian Mountain Range. About 75% of the State of West Virginia is located within the Cumberland Plateau and the Allegheny Plateau regions.
There is little farmland in western Virginia, most of its interests are mining and was not significantly developed until after the Civil War.
The settlement of western Virginia is different too. It was not English as was the case in eastern Virginia. A significant number of the settlers were people that moved from Pennsylvania and were of German descent. Another large block of settlers were Ulster-Scots also known as Scots-Irish.
Because of this the English styled society did not develop and many of the residents of western Virginia had anti-British sentiments.
During the American Revolution there was a movement to form a separate 14th Colony named “Westsylvania.” It would have comprised the entire state of West Virginia, part of western Pennsylvania and eastern Kentucky.
The residents of this are believed that their concerns were different then the concerns of eastern Virginia and eastern Pennsylvania; and they felt that they were being ignored by their respective state governments.
In 1776 they petitioned the Second Continental Congress to become the 14th Colony but their petition was ignored.
Now let’s take a look at the secession movement in western Virginia during the Civil War. Before we do that, let’s take a look at what the U.S. Constitution actually says about the subject.
Article IV, Section 3, Clause 1 reads as follows: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
Basically what this is saying is that western Virginia could not secede and form its own state without the approval of the Legislature of the Commonwealth of Virginia. After that the U.S. Congress had to approve.
Let us not take a look at what transpired. On April 17, 1861, the Virginia legislature met to vote on an Ordinance of Secession from the United States.
Of the 49 delegates from western Virginia, 17 voted in favor, 30 against and there were 2 abstentions. The Virginia legislature as a whole voted for secession. Now it was going to be up to the voters in a plebiscite as to whether Virginia was going to secede.
Almost immediately after the vote, the delegates from western Virginia met at Clarksburg where it was decided that each county in western Virginia were going to send delegates to a convention in Wheeling on May 13, 1861 to determine if they would be able to secede from Virginia and form their own state.
At this convention some of the delegates favored immediate secession and formation of a new state but others wanted to wait until the plebiscite decided the secession issue once and for all. They also felt that since Virginia had not yet seceded, their secession movement from Virginia might be construed as a rebellion against the United States.
It was decided at this point to hold off on voting for secession until the results of the plebiscite were made public.
On May 23, 1861 the plebiscite was held and Virginia overwhemly approved secession from the U.S. The vote was much different in western Virginia. The vote tally was 19,121 for secession from the U.S. and 34,677 against.
The Second Wheeling Convention met on June 11th and they promptly declared that the Secession Convention that Virginia had called was illegal because it was done without the consent of the people. Therefore all of its acts were void and all of the elected represenatives who supported secession by doing so had vacated their offices.
On June 19th, an act for reorganizing the government was passed. The next day, Francis H. Pierpont was chosen by the delegates to be the Governor of Virginia.
Other officers were appointed and Unionists were appointed to fill other state offices. They even sent two senators to Washington and they were immediately recognized by the Senate as the legal Senators of Virginia. In essence there were two state governments, one supporting the Union and one supporting the Confederacy.
The Wheeling Convention reconvened on August 20th and called for a popular vote on the formation of a new state and to frame a new constitution should that vote be favorable.
On October 24, 1861 the election occurred. The votes were 18,408 for the formation of a new state and 781 against.
There have been accusations of voter irregularity since the vote totals were significantly lower then the secession votes were. The Union Army was in place and they perhaps prevented any Confederate sympathizers from casting a nay vote. At any rate, the election results were certified as valid.
On November 26, 1861 the Constitutional Convention began. A constitution was formulated and approved by the convention on February 18, 1862. The constitution was approved by the people in a plebiscite on April 11, 1862. The vote totals were 18,162 for and 514 against.
On May 13th the state legislature of the reorganized government approved the formation of a new state and an application for admission to the Union was made to Congress.
On December 31, 1862 an enabling act was approved by President Lincoln approving West Virginia’s admittance to the Union with the provision that the provision of the gradual abolition of slavery be inserted into their constitution.
Many people felt that the admittance of West Virginia into the Union was both illegal and unconstitutional.
President Lincoln issued his Opinion on the Admission of West Virginia finding that “the body which consents to the admission of West Virginia, is the Legislature of Virginia, and that its admission was therefore both constitutional and expedient.”
On February 12, 1863 the convention reconvened and President Lincoln’s demand was met. The revised constitution was adopted on March 26, 1863.
On April 20, 1863 President Lincoln issued a proclamation proclaiming that West Virginia will become a state after 60 days (June 20, 1863).
Officers of the state were chosen and the governor moved his capitol to Alexandria where he not only administered West Virginia but all area of Virginia that were under Federal control as well.
After the Civil War, the new Virginia Legislature repealed the Ordinance of Secession in 1866. At that point they filed suit against the state of West Virginia stating that West Virginia’s secession from Virginia and admittance to the Union as a sovereign state was unconstitutional.
Meanwhile while all of this was going on, Congress passed a joint resolution on March 10, 1866 recognizing West Virginia as a sovereign state. Finally in 1870, the Supreme Court sided with West Virginia thereby disallowing Virginia’s claim of sovereignty over West Virginia.
The question remains, is West Virginia’s secession and ultimate statehood constitutional? According to the Supreme Court it was. There were several irregularities in the manner in which statehood was achieved and if this were to happen today I highly doubt that it would occur.
When the Supreme Court sided with West Virginia in 1870, Reconstruction was still a fact of life in the former Confederacy. Congress as well as the Supreme Court was filled with radical Republicans whose main purpose was to punish the South for starting a bloody and costly war. I highly doubt at this period in our history anyone in the Federal Government was going to side with Virginia.
West Virginia was the only state to secede from another state during the Civil War and considering the times and its geographical location President Lincoln probably considered it a military necessity. He was trying to put a lot of territory between Washington, D.C. and the Confederacy and considering the lack of competence of his generals this was probably a very prudent decision at the time.
The only other state in U.S. history to secede from another state was Maine. Maine seceded from Massachusetts in 1820 as part of the provisions of the Missouri Compromise.
I firmly believe that Civil War or no Civil War western Virginia was so different both economically and socially from eastern Virginia secession would have eventually happened. The Civil War merely sped up the process.