By Stephen Smoot
On June 20 every year, West Virginia celebrates its independence from the Old Dominion. While most states approach the date of their creation with indifference, West Virginians view it as a holiday and an occasion to feel and express pride in their home state – wherever they happen to live now.
Many times over the history of its creation, West Virginia has seen its share of those criticizing its creation as unconstitutional. In 2002, for example, California Law Review called the process “a classic story of legal formalism in which legal fiction triumphed over reality.”
Though a move of desperation by those in Western Virginia and also seen by President Abraham Lincoln as, chiefly, a war measure on the lines of the Emancipation Proclamation, the creation of the State did follow the letter of the law.
The Baron de la Brede et de Montesquieu may have a concern or two about whether it followed the “Spirit of the Law,” however.
The story of West Virginia begins at settlement where differences emerged immediately between the Anglican worshiping and ethnically English areas in the Piedmont and Tidewater and the North English/Scottish Lowland peoples and Germans migrating into the Shenandoah Valley (originally called the Euphrates) and points west.
Differences in religion and ethnicity expanded into those of economics and politics by the 1800s.
At the outbreak of the Civil War, the Commonwealth of Virginia had two governments claiming the legal authority to govern the state and represent it in a national government. Leaders favoring the Confederacy controlled the government in Richmond while Unionists gathered first in Clarksburg, then Wheeling, to establish a system that Lincoln and Congress could legally recognize.
Lincoln had larger problems in the first few years of the war, even besides conducting the fighting. In addition to his role as commander-in-chief, the President also functions as diplomat-in-chief. He knew full well that the European Great Powers of Great Britain and France favored any development that would split the rising power and strength of the United States. They were restrained, however, by the presence of slavery in the Confederacy and, more importantly, by international law and tradition that respected a nation’s right to handle its own internal affairs.
So long as Lincoln could credibly hold to his position that Southern state governments did not secede from the Union, but were hijacked by criminal organizations, he could hold the Western European empires at bay.
Union Virginia’s ability to muster leaders from the western counties and organize a government in Wheeling helped to drive the legal notion that the Old Dominion never left the Union and still functioned fully within the federal system. They maintained their congressional delegation and also contributed men to the Union Army.
Few consider today the fact that Union victory was not inevitable. It certainly did not appear that way in 1862 and early 1863. Robert E. Lee, Thomas “Stonewall” Jackson, Albert Sidney Johnston, and others gave the Confederacy firm military leadership as Lincoln sifted through his generals to find anyone who met his standard of aggressiveness.
Those in western Virginia understood full well the penalty for treason against the Commonwealth. Should the Confederacy win, Unionists who remained in place could face the same fate as John Brown, who was hanged at Charles Town. The Wheeling Intelligencer’s editor, Archibald Campbell, plead with Lincoln to consider forming a new state.
“The expectation of a new state keeps thousands from falling away” from the Union cause, he told the President.
Supporters of a new state came from every section of the western counties and all walks of life. John Boggs Jr., an Irish immigrant, represented Pendleton County in the West Virginia Constitutional Convention. His brother Aaron led the notorious (to the Confederates, anyway) Swamp Dragon Home Guard unit that terrified Confederates throughout the South Branch region.
Another kinsman of John Boggs, however, served as chief justice on the Pendleton County Court and held a commission as an officer for the Commonwealth of Virginia.
The main debate as delegates forged a new state government lay in how much of “old Virginia” should remain in the new state system. Peter van Winkle, future US Senator from West Virginia, feared that “several gentlemen” in the Convention “intend to be Virginians after we have separated from Virginia.” These men, van Winkle contended, argued against every innovation that “we are to be told, they did not do so in old Virginia.”
At first in seriousness, then in jest as it quickly turned into a cliche, those favoring old ways were said to be “hankering after the fleshpots of Egypt,” a line drawn from Exodus 16:3.
In 1863, the final draft of the State Constitution looked much like an amalgamation of various Northern state and local political ideas, most of which were jettisoned by the new Constitution of 1872.
The United States Constitution states clearly the limited condition under which a new state may be carved from the boundaries of an existing state. Article IV Clause 1 says no “State may 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.”
Although the Union Virginia Legislature, composed mostly of those looking to create a new State, would certainly approve of the creation of West Virginia, Congress and the President still had to approve.
The sticking point lay in the democratic votes that had taken place since May 1861. Pendleton County, for example, voted on May 23, 1861 696 to 131 to leave the Union. Fairfax County voted 942 to 288 in favor of leaving. Yet Pendleton County elected Boggs to serve as delegate to the State Constitutional Convention 60 to six, all votes coming from the northernmost district of Seneca. Occupied Fairfax County even voted to join West Virginia by 53 to 25.
Eastern Panhandle counties, such as Berkeley and Jefferson, came in due to the presence of the Baltimore and Ohio Railroad. That vital transportation system to Union arms feared being in even a postwar Union Virginia. Thomas Carskadon, delegate from Hampshire County, successfully argued that the new State must include Pendleton County, due to its riverborne trade connections with counties downstream and to the north.
Lincoln said of the decision to allow West Virginia that “What I do, I do because I believe it helps to have the Union, and what I forbear, I forbear because I do not believe that it would help save the Union.”
Like a good lawyer, however, Lincoln understood that the legal case for creation had to not only be airtight in itself, but also not contradict the legal basis for the war itself, or any of its other measures. Here, the President showed himself as the greatest American legal mind outside of John Marshall.
The President’s entire philosophy on this and other Civil War measures that served the letter of the law, but not always the spirit, was summed up in his communication to Chief Justice Roger B. Taney on another major Constitutional question.
Lincoln wrote to Taney “are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?”