Extracted from the Congressional Globe
HOUSE OF REPRESENTATIVES
TUESDAY, December 9, 1862
ADMISSION OF WEST VIRGINIA.
HOUSE OF REPRESENTATIVES
TUESDAY, December 9, 1862
The House met at twelve o’clock, m. Prayer by the Chaplain, Rev. Thomas H. Stockton.
The Journal of yesterday was read and approved.
ADMISSION OF WEST VIRGINIA.
Mr. BIDDLE obtained the floor.
Mr. BINGHAM. I demand the regular order of business.
The SPEAKER. The regular order of business is the consideration of Senate bill No. 365, providing for the admission of the State of West Virginia into the Union, which was postponed at the last session to this day.
Mr. BINGHAM. If no gentleman desires to discuss this question, I will ask that it be put on its passage. It is important that it should be passed at this time.
Mr. CONWAY. Let me have the floor for a few moments.
Mr. BINGHAM. I yield to the gentleman from Kansas.
Mr. CONWAY. I have no objection to the erection of a new State in Western Virginia. I believe the inhabitants of that section are thoroughly loyal; that they are opposed to slavery; and would make a prosperous and powerful State. I would be most happy to vote for their admission, if their application came to us in a proper and constitutional form. I wish we had organized a territorial government in Western Virginia at the outset of the rebellion. We could then have passed an enabling act, and the Territory could now come forward and ask to be admitted as a State, in a manner to admit of no exception or dispute.
This bill is not so much for the admission of a new State as it is for the division of an old one. Nevertheless, I would have no objection to that, were it presented under proper conditions. But the Constitution of the United States requires that no State shall be divided unless the assent of its Legislature be first obtained.
While I am willing to palliate, and even justify, at times, a liberal construction of the Constitution, for ends clearly necessary and beneficial, I cannot consent to measures which set at naught unquestionable and fundamental principles. If this Government has any lawful authority, it has it by reason of its constitutionality; and there is no Government at all outside of the Constitution.
I do not regard this proposed division of Virginia as having received that assent from the Legislature of the State which the Constitution requires. Here, of course, however, is a question; and the question turns on whether the State of Virginia of which a Mr. Pierpont is Governor, is the lawful State or not. I do not believe that it is.
This Pierpont State is an institution of very recent origin. It started into existence about two years ago, and is a spontaneous production of the soil. A number of individuals met at Wheeling, and, without any legal authority whatever, arranged a plan for a government. Several persons have since been holding themselves out as officials of this organization, including Pierpont, the Governor; but to what extent it executes the actual functions of a government does not satisfactorily appear.
It is true, the President of the United States has recognized this as the actual State of Virginia; and acting upon his sanction the Senate has admitted its Senators into that body. But this is of no binding force upon us. On the contrary, if the President and Senate are wrong in so grave a matter, it is the more important that the House of Representatives should be right.
The argument in favor of the validity of the Wheeling government is that the original State of Virginia fell into treason and became null and void, and caused a vacuum which could only be filled in this way. Now this is entirely unsatisfactory to me; for, in the first place, I do not see how a State can fall into treason; and secondly, if it should, what right Mr. Pierpont would have to assume the office of Governor over any other individual who might wish it. Where did the law come from which gave him his warrant? From a mob or a mass meeting? Neither mobs nor mass meetings make laws under our system.
It seems to me that this presents a question of the utmost magnitude, as touching other matters than the one immediately under consideration. Eleven States have placed themselves in the same situation as Virginia; and in order to proceed towards them justly and properly, it is necessary to adopt correct legal principles at the outset. I have serious reason to believe that it is the intention of the President to encourage the formation of State organizations in all the seceded States. A policy seems about to be inaugurated looking to an assumption of State powers by a few individuals, wherever a military or other encampment can be effected in any of the rebellious districts. The utter and flagrant unconstitutionality of this scheme – I may say, its radically revolutionary character – ought to expose it to the reprobation of every loyal citizen and every member of this House. It aims at an utter subversion of our constitutional system. Its effect would be to consolidate all the powers of the Government in the hands of the Executive. With the admission of this new State, the President will have substantially created four Senators – two for Virginia and two for West Virginia. He will also have substantially created fifteen electoral votes for President, as belonging to the State of Virginia, and six or eight as belonging to the new State, besides the number of members of this House to which West Virginia will be entitled, and also the number which may come in hereafter from the so-called Virginia itself, under Mr. Pierpont’s certificate.
Now, suppose this scheme is carried into the other seceded States; and if it be right here it is right anywhere; and if it is a good thing across the Potomac it cannot be a bad thing in Tennessee or at Port Royal. Indeed, I am informed that steps have already been taken for similar action in Louisiana, Tennessee, North Carolina, and other parts of the South; and I have recently seen in one of the newspapers a letter signed by the President to one Smith, recommending him for some such work in Tennessee. What will be the undoubted result of all this? Why, that the President, through his particular friends, few in number, and perhaps unprincipled in character, will exercise the Federal powers pertaining under the Constitution to all the seceded States. He will have twenty-two Senators, and nearly one half of the electoral college, to say nothing of this House, and everything else. How much better, pray, would this be than the slave oligarchy itself? Would it, indeed, be anything else than a new slave oligarchy of a most raw and disgusting nature?
The legal principles which set aside all the confused reasoning of the partisans of this projected usurpation are simple and explicit, and need only to be stated to be accepted by all persons conversant with the constitutional law of the country.
No State can commit treason, because treason is a crime, and an individual only can commit crime. No State is responsible for an act of secession, for such an act is contrary to the State constitution, and is of no validity. No traitor can shield himself behind his State from the consequences of his guilt. If the whole personnel of a State abandon its functions, the State organization falls, and the sovereignty necessarily accrues to the United States. The country assumes the condition of ordinary Government territory. This, however, from a necessity which, on principles of public law, would make it valid.
A state without a government is an impossibility. A State is that political organization of a community which invests it with a public faculty; in other words, its governmental establishment, including constitution, functionaries, and laws. Where there is no Government, therefore, there is no State, but an incoherent mass. A State is either in the Union or it is out of it. If it is in the Union it is of course to be respected as such. If it is out, then it is a foreign State, and its territory is liable to be conquered and held as other territory, subject to the sovereignty which has conquered it. Mexico was thus held by the United States. Territory held in this way is properly subject to a military occupancy, as California was, or to an ordinary peace establishment, as most of our Territories are.
The vacation of all the offices of a State, by a due conviction of their incumbents of any crime, and the failure of the people to reelect according to the terms of the Constitution, or any event not provided for in the Constitution by which it would be left without agents to carry it on, would, of course, necessitate its failure. But this would be the end of the State. No man, or set of men, of their own will, would be authorized to assume its functions. The unlegalized mass would have no rights in the premises. It might have power, but this would be to be tested. Of course, the elementary ultimate of every State is simply the power to maintain itself; but we are now speaking of legal rights. In any such case, the territory would belong to the United States, as would any other territory which might fall into its possession through conquest, discovery, or other cause. The United States, as the legitimate sovereign, would take steps for its proper governance.
In my judgment, a State can only be out of the Union (unless through a constitutional amendment) when its people have accomplished a revolution, or, in other words, have by force of arms become either a belligerent Power or absolutely independent. In my opinion, the situation with regard to our seceded States is that they are out of the Union by having acquired at least a belligerent character, thus securing an international status incompatible with their Federal relations. This places them to us in the position of a foreign Power with whom we are at war, and makes their territory subject to our sovereign will whenever we take it from them.
The true policy of this Government, therefore, with regard to the seceded States, is to hold them as common territory wherever and whenever our arms are extended over them. This obviates the terrible dangers which I have alluded to, and is in harmony with the highest consideration of public utility, as well as with sound legal principles. At any rate, I hope that Congress will not fail to set itself firmly against that scheme which looks to a reorganization of southern power on the ruins of our constitutional system.
But the question upon which the case now before us really turns, was raised in Rhode Island in 1842. It was involved in the Dorr rebellion. The constitution of that State was obnoxious to the people, and they adopted another, and tried to get a new government in motion. They elected Mr. Dorr Governor. But the President, instead of recognizing it, very properly sent a detachment of infantry and cavalry to Newport. Dorr, who had set a squadron in the field to approve his right, was met and defeated, without any bloodshed, and the whole thing ended in smoke. But Dorr himself was sent to the penitentiary.
The question came up for argument before the Supreme Court of the United States some time afterwards, and was handled with vast ability. Daniel Webster spoke for the old establishment, and made one of his most powerful and learned arguments. The decision of the court was with him.
The argument and decision in this case throw a flood of light on the principles here involved, and I would respectfully recommend them to the perusal of the President and gentlemen of this House, for “there were giants in those days.”
Mr. BROWN, of Virginia. Mr. Speaker, I propose to make a few remarks in support of the bill under consideration for the admission of the State of West Virginia into the Union. I understand the gentleman from Kansas [Mr. CONWAY] as denying the legitimacy of the Wheeling government. I admit, sir, that there are but two points in the case: First, can this House lawfully, constitutionally, admit West Virginia? Secondly, is it expedient to do so if it has the power?
I propose to show that it is constitutional, perfectly so. I will first go upon the hypothesis that the Wheeling government is the government of Virginia; and then I will reply to the gentleman from Kansas in relation to the government at Wheeling. Certain gentlemen upon this floor – I think they are few in number – deny that Congress can admit a new State into the Union formed out of one or more of the old State. It may be important to advert to the language of the Constitution in relation to the matter. It is very brief and plain. Article fourth, section third, reads as follows:
“New States may be admitted by the Congress into this Union; but no new States 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.”
As an interpretation of that part of the Constitution at an early day, permit me to call the attention of the House to the preamble of the act admitting Kentucky into the Union. It is as follows:
“Whereas, the Legislature of the Commonwealth of Virginia, by an act entitled ‘An act concerning the erection of the district of Kentucky into an independent State,’ passed the 18th day of December, 1789, have consented that the district of Kentucky, within the jurisdiction of the said Commonwealth, and according to its actual boundaries at the time of passing the act aforesaid, should be formed into a new State; and whereas a convention of delegates chosen by the people of the said district of Kentucky, have petitioned Congress to consent that, on the 1st day of June, 1792, the said district should be formed into a new State, and received into the Union by the name of ‘the State of Kentucky:’
“Be it therefore enacted by the Congress of the United States, That the said State of Kentucky be, and the same is hereby, admitted into the Union as an independent State,” &c.
Here, then Mr. Speaker, is an interpretation of that clause of the Constitution by the early statesmen, both in the Legislature of Virginia and in this body. I presume it will not be doubted that there were giants in that day as well as there were in the time of Daniel Webster. They were conversant with the meaning of the clause of the Constitution which I have quoted. I might also advert to other cases. I might refer to Vermont, which was formed out of New York, Maine out of Massachusetts, Tennessee out of North Carolina. It is not necessary, however, to do so. Here, then, is a precedent which I think ought to convince any gentleman who doubts that it is competent for Congress to admit a new State into the Union within the jurisdiction of another State, with the consent of the Legislature of that State. Now, sir, for the question whether the government at Wheeling, and the Legislature at Wheeling, are the government and the Legislature of Virginia. Precedent is worth something. We are told by the gentleman who has just taken his seat, that the Senate of the United States has, after full and fair examination, decided that the Legislature at Wheeling was the Legislature of Virginia. It has decided that it was competent for that Legislature to elect Senators for Virginia to that body. The same thing will be found in the Constitution in relation to the election of Senators – that they shall be elected by the Legislatures of the States. The Senate of the United States decided that the Legislature at Wheeling was the true and legitimate Legislature of Virginia. This House has also done so in the admission of members who have been elected under writs issued by Governor Pierpont. The Executive has acknowledged the government at Wheeling. It will be recollected that the sum of $40,000, the share of Virginia of the proceeds of the sale of the public lands, has never been accepted by that State; that her Legislature has always declined to receive that sum from the Treasury of the United States. The Legislature at Wheeling authorized the treasurer of the State to call for the money. The question was then presented to the Attorney General, the legal adviser of the Executive, and he decided that the Legislature at Wheeling was the lawful Legislature of Virginia. The money was paid under the advice of that officer. Not only has such a decision been made by the Federal Government – it has been similarly decided by the State court of Ohio only a few days ago. The question came up in the city of Cincinnati before the chancellor, upon an application from the State of Virginia at Wheeling to enforce a railroad company to assign nearly two hundred thousand dollars of bonds for the benefit of the State of Virginia. It was argued before the court; and after full and fair investigation – the case being argued upon legal grounds – it was decided in favor of the Wheeling government, and a mandamus was issued out against the railroad company.
I said that precedent was worth something; but the convention at Wheeling can be vindicated upon first principles. If my friend, who is rather inclined to call the convention at Wheeling a mob, will turn to the Declaration of Independence, he will there find the great principle laid down that the legislative powers of the people cannot be annihilated; that when the functionaries to whom they are intrusted become incapable of exercising them, they revert to the people, who have the right to exercise them in their primitive and original capacity.
Now, let us see how the fact was in Virginia, and we shall see how, upon the soundest principles of political philosophy, the government at Wheeling can be vindicated. The government at Richmond, and all the officers under the old government of Virginia, transferred themselves and attempted to transfer their people to a foreign organization. I need hardly detail the particulars of that act, as they must be fresh in the memory of every gentleman. They know that the functionaries at Richmond, immediately after they passed the ordinance of secession, which they were bound to submit to the people, did not wait for the people to act upon their so-called ordinance, but immediately entered into a treaty with the government at Montgomery, and the whole military and civil powers of the State were transferred, so far as they could transfer them, to that government.
The loyal people of Virginia immediately finding that their rulers, those in whom the legislative and executive powers had been intrusted, had betrayed them, and had ceased to be capable of exercising their prerogative, called, in all the loyal counties where they had permission to do so, mass meetings, which sent to Wheeling five hundred of as loyal and good men as live in any portion of the United States, not for immediate action, but for the purpose of consulting upon the emergency of the times.
That convention merely organized and proposed a plan by which regular elections were to be held to fill the vacancies caused by the withdrawal of all disloyal representatives. A day was fixed and elections held, not within the boundaries of the proposed new State, but held throughout Virginia wherever loyal men chose to hold them, from one end of the Commonwealth to the other, and the body thus elected assumed the legislative functions of the people.
Now, I was astonished that a gentleman, apparently so well versed in political and constitutional law as the gentleman from Kansas, should acknowledge the validity of the act of secession. That has been denied by all our statesmen. The power to secede has been denied, and can be most successfully denied. It is not within the power of a State to secede. The Constitution has prescribed the only mode in which a State can be relieved from all the obligations assumed by her; and although the State of Virginia could not commit treason, her functionaries might, and leave the legislative and executive power with the people, to whom they originally and primitively belonged. I deny that any of the States are out of this Union. I maintain that the President is right in the position he takes in his efforts to restore the Union and bring back the States to their allegiance, and to the position they formerly occupied under Constitution; that they do not become Territories; that they are still States bound to this Government by the Constitution of the United States; and that they cannot be released until they are released by the action of this Government under the Constitution.
Mr. MALLORY. I wish to know from the gentleman from Western Virginia whether, in this Legislature which gave its consent to the division of the State of Virginia, and which consented to the admission of Western Virginia into the Union, there were any counties represented except those which compose the State of Western Virginia.
Mr. BROWN, of Virginia. Yes, sir.
Mr. MALLORY. How many?
Mr. BROWN, of Virginia. Alexandria and Fairfax, and two or three more.
Mr. MALLORY. I understand, then, from the gentleman from Virginia, that more than one half of the counties of the State of Virginia, as we have always understood Virginia, were not at all represented in that Legislature.
Mr. BROWN, of Virginia. I presume that a majority of those counties had no representatives there.
Mr. BLAIR, of Virginia. I would like to know if all the counties of the State were not invited to send representatives to form that Legislature?
Mr. BROWN, of Virginia. All were expressly invited.
Mr. MALLORY. Although they were all invited, I wish to ask my friend from Virginia whether they were not so completely under the military control and oppression of a foreign government as to render it impossible to obey that call, and send representatives?
Mr. BROWN, of Virginia. That is a fact about which I cannot speak; they may have been under such intimidation, or they may not have sought opportunity to send representatives. It is sufficient for me to say that they were invited to co-operate, and if they staid away it was their fault, not ours. They were invited to act, and if they were loyal men, they ought to have acted with us. If they were disloyal, they should have no voice either in the Legislature of Virginia, or in this body.
I desire now to read the consent of the Legislature of Virginia, and it will be found to be in almost the identical language of the act of the Legislature giving its consent to the formation of the new State of Kentucky. It is as follows:
“1. Be it enacted by the General Assembly, That the consent of the Legislature of Virginia be, and the same is hereby given to the formation and erection of the State of West Virginia within the jurisdiction of this State, to include the counties of Hancock, Brooke, Ohio, Marshall, Wetzel, Marion, Monongalia, Preston, Taylor, Tyler, Pleasants, Ritchie, Doddridge, Harrison, Wood, Jackson, Wirt, Roane, Calhoun, Gilmer, Barbour, Tucker, Lewis, Braxton, Upshur, Randolph, Mason, Putnam, Kanawha, Clay, Nicholas, Cabell, Wayne, Boone, Logan, Wyoming, Mercer, McDowell, Webster, Pocahontas, Fayette, Raleigh, Greenbrier, Monroe, Pendleton, Hardy, Hampshire, and Morgan, according to the boundaries and under the provisions set forth in the constitution for the said State of ‘West Virginia’ and the schedule thereto annexed, proposed by the convention which assembled at Wheeling on the 26th day of November, 1861.
“2. Be it further enacted, That the consent of the Legislature of Virginia be, and the same is hereby, given that the counties of Berkeley, Jefferson, and Frederick, shall be included in and form part of the State of West Virginia, whenever the voters of said counties shall ratify and assent to the said constitution, at an election held for the purpose at such time and under such regulations as the commissioners named in the said schedule may prescribe.
“3. Be it further enacted, That this act shall be transmitted by the Executive to the Senators and Representatives of this Commonwealth in Congress, together with a certified original of the said constitution and schedule, and the said Senators and Representatives are hereby requested to use their endeavors to obtain the consent of Congress to the admission of the State of West Virginia into the Union.
“4. This act shall be in force from and after its passage.”
There is the consent of the body which I have been endeavoring to show is the loyal Legislature of Virginia – the only Legislature that this Government can have any connection with, and the only Legislature that this Government can recognize. If we do not recognize it, then loyal Virginia has no government, and she has become a Territory, as suggested by the gentleman from Kansas, and the act of secession is a legal act, and the State is gone, and we can only get it back by conquest, when we may impose upon her a new form of government, and not give her the benefit of her anterior constitution.
Now, sir, I propose to enter upon the question of expediency. I want to show that this territory, in point of extent, is large enough to make a respectable and good State. That is conceded, however, by the gentleman from Kansas. Its extent is about twenty-four thousand square miles; and although it does not include quite one third of the inhabitants of Virginia, yet it does embrace largely more than one third of her territory. In point of extent it is larger than any of the New England States…
ADMISSION OF WEST VIRGINIA – AGAIN.
The SPEAKER stated the business next in order to be the consideration of Senate bill No. 365, for the admission of West Virginia into the Union, and for other purposes; on which the gentleman from Virginia [Mr. BROWN] was entitled to the floor.
Mr. BROWN, of Virginia. I was about leaving the question of legitimacy of the government of Virginia, when I was interrupted by the order of the day. I have already referred to the convention of May, 1861; but I beg leave to read some of the resolutions of that convention. I do so because the gentleman from Kansas was pleased to speak of that body as a mob. Sir, I wish the gentleman from Kansas could have looked upon that convention of five hundred men. I have never served in a body more conspicuous in point of talent or appearance. And if gentlemen will only read the resolutions passed by that body, and compare them with the views of the gentleman from Kansas, I think they will find them to compare very well in point of ability.
The first resolution to which I will call the attention of the House reads as follows:
“Resolved, That in our deliberate judgment the ordinance passed by the convention on the 17th day of April, 1861, known as the ordinance of secession, by which said convention undertook, in the name of the State of Virginia, to repeal the ratification of the Constitution of the United States by said State, and to resume all the rights and powers granted under said Constitution, is unconstitutional and void.”
Now, sir, the difference between the gentleman from Kansas and the convention of that people is that the gentleman from Kansas understands that ordinance as having the effect to take Virginia out of the Union, while that convention though otherwise; that is was a usurpation, null and void.
The remaining ten resolutions are as follows:
“2. Resolved, That the schedule attached to the ordinance of secession, suspending and prohibiting the election of members of Congress for this State, is a manifest usurpation of power, to which we ought not to submit.
“3. Resolved, That the agreement of the 25th of April, 1861, approving and ratifying said agreement, by which the whole military force and military operations, offensive and defensive, of this Commonwealth, are placed under the chief control and direction of the president of the confederate States, upon the same principles, basis, and footing as if the Commonwealth were now a member of said confederacy, and all the acts of the executive officers of our State in pursuance of said agreement and ordinance, are plain and palpable violations of the Constitution of the United States, and are utterly subversive of the rights and liberties of the people of Virginia.
“4. Resolved, That we earnestly urge and entreat the citizens of the State everywhere, but more especially in the western section, to be prompt at the polls on the 23d instant, and to impress upon every voter the duty of voting in condemnation of the ordinance of secession, in the hope that we may not be involved in the ruin to be occasioned by its adoption, and with the view to demonstrate the position of the West on the question of secession.
“5. Resolved, That we earnestly recommend to the citizens of Virginia to vote for members of the Congress of the United States in their several districts, in the exercise of the right secured to us by the Constitutions of the United States and the State of Virginia.
“6. Resolved, That we also recommend to the citizens of the several counties to vote at said election for such persons as entertain the opinions expressed in the foregoing resolutions for members of the Senate and House of Delegates of our State.
“7. Resolved, That in view of the geographical, social, commercial, and industrial interests of northwestern Virginia, this convention are constrained, in giving expression to the opinion of their constituents, to declare that the Virginia convention, in assuming to change the relation of the State of Virginia to the Federal Government, have not only acted unwisely and unconstitutionally, but have adopted a policy utterly ruinous to all the material interests of our section, severing all our social ties and drying up all the channels of our trade and prosperity.”
“8. Resolved, That in the event of the ordinance of secession being ratified by a vote, we recommend to the people of the counties here represented, and all others disposed to cooperate with us, to appoint, on the 4th day of June, 1861, delegates to a general convention, to meet on the 11th of that month, at such place as may be designated by the committee hereinafter provided, to devise such measures and take such action as the safety and welfare of the people they represent may demand – each county to appoint a number of representatives to said convention equal to double the number to which it will be entitled in the next House of Delegates; and the Senators and Delegates to be elected on the 23d instant, by the counties referred to, to the next General Assembly of Virginia, and who concur in the views of this convention, to be entitled to seats in the said convention as members thereof.
“9. Resolved, That inasmuch as it is a conceded political axiom, that government is founded on the consent of the governed, and is instituted for their good, and it cannot be denied that the course pursued by the ruling power of the State is utterly subversive and destructive of our interests, we believe we may rightfully and successfully appeal to the proper authorities of Virginia to permit us peacefully and lawfully to separate from the residue of the State, and form ourselves into a government to give effect to the wishes, views, and interests of our constituents.
“10. Resolved, That the public authorities be assured that the people of the northwest will exert their utmost power to preserve the peace, which they feel satisfied they can do, until an opportunity is afforded to see if our present difficulties cannot receive a peaceful solution; and we express the earnest hope that no troops of the confederate States be introduced among us, as we believe it would be eminently calculated to produce civil war.
“11. Resolved, That in the language of Washington, in his letter of the 17th of September, 1787, to the President of Congress, ‘in all our deliberations on this subject we have kept steadily in view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, and perhaps our national existence.’ And therefore we will maintain and defend the Constitution of the United States, and the laws made in pursuance thereof, and all officers acting thereunder, in the lawful discharge of their respective duties.”
If the views, then, of the gentleman from Kansas be correct, I have no right to a seat upon this floor. If Virginia is a Territory, then by the unauthorized and illegal act of secession of that State I have no business to a seat upon this floor. The Wheeling convention resolved that it would hold elections for Congressmen and for members of the State Legislature upon the regular day of election. Upon that day, sir, there was a larger vote given in my district than had ever been given before. I was returned to the House of Representatives by a majority of more than fifteen thousand over all the other persons voted for. The vote was almost unanimous for me. The Delegates to the Virginia legislature were also elected by the people of Virginia by a large vote. But I need not advert to my own district as the only one where this was the case. The adjoining district of my colleague [Mr. BLAIR] voted in the same way. My colleague was also elected by a very large majority. The vote in West Virginia was larger than had ever been given before. The members to the General Assembly were elected on the day fixed by law for their election. They were elected for the very purpose of reorganizing the State government, and maintaining their allegiance to the Constitution and the laws of the United States. They denied the power of the separate action of the Richmond usurpation to sever them from this Government, and to destroy their right to the enjoyment of the laws of Virginia as they were.
I will insert in my remarks, if I should see proper, the resolutions passed by the convention of the 11th of June, 1861, which reestablished the loyal government of Virginia.
Mr. Speaker, I will remark before I take my seat, that the extent of territory of West Virginia is larger than some of the old thirteen States of the Union, embracing some twenty-four thousand square miles. Its population is larger than some of those old States. We have a population of three hundred and thirty thousand, giving us, under the apportionment of 1860, three Representatives upon this floor, which is all we claim in the pending bill, leaving eight Representatives to the remaining portion of old Virginia. So much for that matter.
With regard to our revenue, I will add a word. The revenue collected within the boundaries of the new State in 1859 can be stated. I have no accurate estimates since that year. I hold in my hand the report of the auditor, which fixes the revenue in the forty-eight counties included in the bill of the Senate, for the year 1859, at $620,061.39, a sum larger than is collected in many of the old States of the Union.
Now, sir, there are other considerations why this House should admit West Virginia into the Union. The bill ought to be passed at once as a matter of expediency. It is not a new question with the people of West Virginia. They have been struggling for it for forty years. They were on the point of revolution in 1829-30, when Eastern Virginia yielded a small pittance of the power to them – not what they were entitled to, but enough to reconcile them for the moment. In 1850 we were again upon the point of revolution because we were denied our proper representation in the Legislature of Virginia. They then yielded to us our proper representation in the House of Representatives, but they denied them to us in the Senate. They fixed the Senate upon the mixed basis, as they called it. They gave us our proper weight in one branch of the Legislature, but in the other they held the power to control us. As an equivalent for what they gave us, they retained in the constitution the provision that was most oppressive and unjust. They retained a provision that the Legislature should not tax negroes under twelve years of age at all. I need not tell you, sir, that the negro population is to be found in Eastern Virginia. All that valuable class of property, many of them then worth from a thousand to fifteen hundred dollars – the negroes under twelve years of age – was entirely exempt from taxation, and the remaining portion of negro property was only taxed as property at the value of $300. Although the negroes should bring more than a thousand dollars it was fixed that they should only be valued at $300 each. While every article of our property was taxed at its full value, the negro was almost entirely exempt from taxation. We protested against it, but we were powerless because they retained in the Legislature an undue proportion of the representative power.
But, sir, that is not all. They raised – not upon the property in the negroes – large sums of money for the purpose of constructing railroads. They collected of the $600,000 a large amount for the purpose of constructing railroads in Eastern Virginia – railroads they are not using for our subjugation and for the destruction of the Union. They built them out of our money. They raised revenue in an undue proportion upon us, and then expended it within their own localities. A greater outrage was never committed upon a loyal people.
But, sir, I could assign another reason. Our relations, always unfriendly and unkind in consequence of their oppression, are doubly so now, because of our loyalty. We, sir, are the only people within the limits of a seceded State that declared open resistance to the revolution. The five hundred delegates who assembled at Wheeling to inaugurate the project of reestablishing the government of Virginia upon a loyal basis, went with their lives in their hands. They were threatened with expulsion from the State. They were threatened with the gallows. At the time we assembled there the southern troops were marching with all possible speed for the purpose of intimidating us, and to prevent us from the exercise of our allegiance to the laws. They were, sir, within fifty or sixty miles from Wheeling. A people never did exhibit more firmness and more determination than the loyal people of Virginia on that occasion. So far as we had any intimation from this Government, it was through the last message of Mr. Buchanan, who denied that it had the right to coerce a seceded State. Virginia had seceded and annexed herself to the southern confederacy; and here were about three hundred thousand loyal people of Virginia, without any assurance of aid from this Government, determined that if the policy of the incoming Administration should be the same as that of Mr. Buchanan, and would not give us aid, we would, for the love of the Government of our fathers, take up arms and resist the southern confederacy ourselves. And, indeed, we did not know but that this Government, under the views of Mr. Buchanan, might aid the southern confederacy in suppressing us as in insurrection. It was a new question; but we were resolved upon one thing, and that was, that if we were carried out of the old State of Virginia, and our connection with this Government broken up, it should be done by force and at the point of the bayonet.
How does that people now stand? We have in the field, fighting for this Government, sixteen regiments raised almost exclusively within the limits of the new State. We have supplied more than our full quota, and that not by drafting but by volunteering. When the last requisition was made upon us, we furnished the number promptly. In my own county and district nearly every fighting man is now in the Army. Are we to be turned back to the old Commonwealth, there to be oppressed by her to be driven from the borders, if persecution can drive us from our homes? Many of our citizens say they will leave the homes of their fathers and seek new homes in the West unless they can be relieved from this threatened load of oppression and danger. My advice to them has been otherwise. I have told them not to run after liberty in another land, but swear by the God of their fathers that they will bring liberty to their own homes; and we will do it by the aid of this Government and the blessing of God, and we will be a free people.
I received this morning from the Legislature of the State of Virginia, sitting at Wheeling, a dispatch containing a resolution passed by that body, asking this House to pass the Senate bill just as it passed the Senate. I had the honor yesterday of presenting petitions from the people of Virginia, numbering some five thousand, asking the same thing. My colleague [Mr. BLAIR] presented a batch of similar petitions. There is but one voice among our constituents, and that is in favor of a division of the State.
Mr. BINGHAM. Will the gentleman from Virginia allow me to say that I am prepared to make a report upon those petitions which were referred to the Committee on the Judiciary, to the effect that the prayer of the petition be granted?
Mr. BROWN, of Virginia. I desire to put this House right upon one further point, and then I will leave this question to the House for their final action, so far as I am concerned. It has been asserted, and understood in some quarters, that the organization of the government at Wheeling was for the purpose of forming a new State. I am prepared to say that when that convention originally met in Wheeling, although there were a few radicals there who wanted to form a new State without reinstating the old State of Virginia, we voted them down, and commenced the exercise of our original rights as freemen to build up the loyal government of Virginia; and, although we designed eventually to ask for this separation, and it was what we anxiously desired, yet we determined to be a law-abiding people, and ask for what we desired through the forms of law. We think we have brought ourselves within the forms of law, and we think we have conducted ourselves in such a manner as to recommend us favorably to the consideration of this body; and now, in the name of my constituents, and of the loyal men of Virginia, I most earnestly appeal to this body to give us the relief we ask, and grant us the prayer we have made. With these remarks I shall leave the case with the House.
The following are among the proceedings of the convention assembled on the 11th of June, 1861:
A Declaration of the People of Virginia, represented in Convention, at the city of Wheeling, Thursday, June 13, 1861.
The true purpose of all government is to promote the welfare and provide for the protection and security of the governed, and when any form or organization of government proves inadequate for, or subversive of this purpose, it is the right, it is the duty of the latter to alter or abolish it. The Bill of Rights of Virginia, framed in 1776, reaffirmed in 1860, and again in 1851, expressly reserves this right to the majority of her people, and the existing constitution does not confer upon the General Assembly the power to call a Convention to alter its provisions, or to change the relations of the Commonwealth, without the previously expressed consent of such majority. The act of the General Assembly, calling the Convention which assembled at Richmond in February last, was therefore a usurpation; and the Convention thus called has not only abused the powers nominally entrusted to it, but, with the connivance and active aid of the executive, has usurped and exercised other powers, to the manifest injury of the people, which, if permitted, will inevitably subject them to a military despotism.
The Convention, by its pretended ordinances, has required the people of Virginia to separate from and wage war against the government of the United States, and against the citizens of neighboring State, with whom they have heretofore maintained friendly, social and business relations.
It has attempted to subvert the Union founded by Washington and his co-patriots in the purer days of the republic, which has conferred unexampled prosperity upon every class of citizens, and upon every section of the country.
It has attempted to transfer the allegiance of the people to an illegal confederacy of rebellious States, and required their submission to its pretended edicts and decrees.
It has attempted to place the whole military force and military operations of the Commonwealth under the control and direction of such confederacy, for offensive as well as defensive purposes.
It has, in conjunction with the State executive, instituted wherever their usurped power extends, a reign of terror intended to suppress the free expression of the will of the people, making elections a mockery and a fraud.
The same combination, even before the passage of the pretended ordinance of secession, instituted war by the seizure and appropriation of the property of the Federal Government, and by organizing and mobilizing armies, with the avowed purpose of capturing or destroying the Capitol of the Union.
They have attempted to bring the allegiance of the people of the United States into direct conflict with their subordinate allegiance to the State, thereby making obedience to their pretended Ordinance, treason against the former.
We, therefore the delegates here assembled in Convention to devise such measures and take such action as the safety and welfare of the loyal citizens of Virginia may demand, having mutually considered the premises, and viewing with great concern, the deplorable condition to which this once happy Commonwealth must be reduced, unless some regular adequate remedy is speedily adopted, and appealing to the Supreme Ruler of the Universe for the rectitude of our intentions, do hereby, in the name and on the behalf of the good people of Virginia, solemnly declare, that the preservation of their dearest rights and liberties and their security in person and property, imperatively demand the reorganization of the government of the Commonwealth, and that all acts of said Convention and Executive, tending to separate this Commonwealth from the United States, or to levy and carry on war against them, are without authority and void; and the offices of all who adhere to the said Convention and Executive, whether legislative, executive or judicial, are vacated.
An Ordinance for the reorganization of the State Government, passed June 19, 1861.
The people of the State of Virginia, by their delegated assembled in convention at Wheeling, do ordain as follows:
1. A Governor, Lieutenant Governor, and Attorney General for the State of Virginia shall be appointed by this convention, to discharge the duties and exercise the powers which pertain to their respective offices by the existing laws of the State, and to continue in office for six months, or until their successors be elected and qualified; and the General Assembly is required to provide by law for an election of Governor and Lieutenant Governor by the people as soon as in their judgment such an election can be properly held,.
2. A Council, to consist of five members, shall be appointed by this convention, to consult with and advise the Governor respecting such matters pertaining to his official duties as he shall submit for consideration, and to aid in the execution of his official orders. Their term of office shall expire at the same time as that of the Governor.
3. The Delegates elected to the General Assembly on the 23d day of May last, and the Senators entitled under existing laws to seats in the next General Assembly, together with such Delegates and Senators as may be duly elected under the ordinances of this convention, or existing laws, to fill vacancies, who shall qualify themselves by taking the oath or affirmation hereinafter set forth, shall constitute the Legislature of the State, to discharge the duties and exercise the powers pertaining to the General Assembly. They shall hold their offices from the passage of this ordinance until the end of the terms for which they were respectively elected. They shall assemble in the city of Wheeling, on the 1st day of July next, and proceed to organize themselves as prescribed by existing laws, in their respective branches. A majority in each branch of the members qualified as aforesaid shall constitute a quorum to do business. A majority of the members of each branch thus qualified, voting affirmatively, shall be competent to pass any act specified in the twenty fourth section of the fourth article of the constitution of the State.
4. The Governor, Lieutenant Governor, Attorney General, members of the Legislature, and all officers now in the service of the State, or of any county, city, or town thereof, or hereafter to be elected or appointed for such service, including the judges and clerks of the several courts, sheriffs, commissioners of the revenue, justices of the peace, officers of the city and municipal corporations, and officers of militia, and officers and privates of volunteer companies of the State, not mustered into the service of the United States, shall each take the following oath or affirmation before proceeding in the discharge of their several duties:
I solemnly swear (or affirm) that I will support the Constitution of the United States, and the laws made in pursuance thereof, as the supreme law of the land, anything in the constitution and laws of the State of Virginia, or in the ordinances of the convention which assembled at Richmond on the 13 of February, 1861, to the contrary notwithstanding; and that I will uphold and defend the government of Virginia as vindicated and restored by the convention which assembled at Wheeling on the 11th day of June, 1861.
If any elective officer, who is required by the preceding section to take such oath or affirmation, fail or refuse so to do, it shall be the duty of the Governor, upon satisfactory evidence of the fact, to issue his writ declaring the office to be vacant, and providing for a special election to fill such vacancy, at some convenient and early day to be designated in said writ; of which due publication shall be made for the information of the persons entitled to vote at such elections; and such writ may be directed, at the discretion of the Governor, to the sheriff or sheriffs of the proper county or counties, or to a special commissioner or commissioners to be named by the Governor for the purpose. If the officer who fails or refuses to take such oath or affirmation be appointed by the Governor, he shall fill the vacancy without writ; but if such officer be appointed otherwise than by the Governor or by election, the writ shall be issued by the Governor, directed to the appointing power, requiring it to fill the vacancy.
ARTHUR I. BOREMAN, President
G. L. CRANMER, Secretary.
Mr. COLFAX. I desire to state as briefly as possible to the House the reasons which will govern the vote which I shall cast upon the bill which is now pending before this body. At the last session of Congress, in common with other members, I had grave doubts as to the propriety of the passage of this bill, and I have therefore since given it the more careful and grave consideration. My mind is now made up clearly that we ought to pass the bill here and now, and I desire briefly to give the reasons which led me to that conclusion.
Two things are required by the Constitution of the United States for the admission of this new State; first, the assent of the Legislature of the State out of which it is to be formed; and secondly, the assent of Congress. The decision then turns to a great extent upon the question whether the Governor now acting as the Governor of Virginia, and resides at Wheeling, and the Legislature to which he communicates his messages, are really the Governor and Legislature of the loyal people of Virginia. I think they are, and that the history of events in Virginia will prove that fact.
When, in February, 1861, the traitorous authorities of Virginia attempted to take that State out of the Union, the people of Western Virginia nobly resisted that conspiracy; and instead of joining with their fellow-citizens in other parts of the State, they called together a convention elected by the loyalists of that region, and some other counties not included within the boundaries of the new State, and determined to stand, at every hazard and through every persecution, by the Union as it was. That convention, speaking the voice of loyal Virginians, called all the members elect of the Legislature – chosen as they were on the day prescribed by their State constitution – who would take the oath of fealty to the Union, to meet at Wheeling; and thus a loyal Legislature, chosen in accordance with the constitution and law of Virginia, assembled and was organized. This machinery of the State government had been abandoned by Governor Letcher and by the Legislature which participated with him in his treason. It having thus lapsed, the loyal people of Western Virginia took possession of this machinery, in order that all the State might not be driven into this wicked rebellion.
The next question is, has this loyal Legislature been reorganized? There are facts enough in the action of the various branches of this Government to prove to us that they have, one and all, fully, and in various ways, recognized this as the only true and rightful government of Virginia. Allow me to present a few of them:
First. The Senate of the United States has recognized this Legislature as the Legislature of the State of Virginia, and admitted two Senators elected by that body to fill vacancies caused by treason, as the rightfully chosen Senators of Virginia. That was done almost unanimously by that body.
Secondly. The executive department of the Government, and the highest portion of that executive department, the President himself, has repeatedly recognized the Governor and the Legislature of Virginia as the rightful authorities of that State.
Thirdly. The Secretary of the Treasury has recognized that government as the rightful government of Virginia, for he has paid to them out of the Treasury of the Union, without complaint and without protest from any one of all the twenty-odd millions of loyal people of the United States, the $40,000 remaining in the Treasury as the share of the State of Virginia of the proceeds of the sales of the public lands, and which the State of Virginia had hitherto refused to take from the Treasury.
Fourthly. The Secretary of War has recognized this government as the lawful government of Virginia, and Governor Pierpont as the rightful Governor of Virginia, by accepting his commissions to the officers of the noble and loyal volunteer regiments of Virginia, as commissions emanating from rightful and legal authority.
Mr. CONWAY rose.
Mr. COLFAX. My friend from Kansas will excuse me till I complete my allusion to these points, when I will yield to him for a question, with pleasure.
Fifthly. The Secretary of the Interior also has recognized the same thing in his communicating to Governor Pierpont, as the Governor of Virginia, the official notice of the congressional apportionment under the census of 1860, as required by law.
Sixthly. This House of Representatives – and I am glad to say that gentlemen upon the other side of the House largely participated in that act at the last session – recognized Governor Pierpont as the rightful Governor of Virginia when they admitted the gentleman who represents the district around Fortress Monroe, [Mr. SEGAR,] who came here and claimed admission under an election ordered by Governor Pierpont, although that is a portion of Virginia distant from that which is now proposed to be admitted as a State. The loyal people there, however, recognized the Wheeling government as the only legal State government in existence in Virginia; and this House affirmed their conclusion as correct. After a thorough argument, which of course involved the question as to whether the Governor had authority to order the election, Mr. SEGAR was admitted to his seat, and now holds it here; and many gentlemen upon the other side of the House joined with the majority on that occasion in recognizing Governor Pierpont as the rightful Governor, as I hope they will do again to-day.
I say, then, that not only the two legislative branches of the Government, but that the President of the United States and the various members of the Cabinet have, without dissent and without protest, as far as I have heard, by any one up to this day, recognized Governor Pierpont and the Wheeling Legislature as the rightful authority in Virginia, and it therefore seems to be a settled and concluded question; and the consent of this Legislature to the division of the State is sufficient to bring it within the purview of the Constitution.
There is another reason, based not on constitutional right, but on expediency, why I shall vote for the admission of this State. For many years past it has been apparent to the people of the whole Union that the interests of Western Virginia were not homogeneous with those of Eastern Virginia. Divided by a great natural boundary, the Alleghany mountains, the traffic and commerce between the two sections was so insignificant as not to be worth mentioning. They differed in interests, in habits, and to a great extent in institutions, for while Eastern Virginia was largely populated by slaves, in Western Virginia there was a very small portion of that kind of population. The interests of the two sections of the State, as we have seen in the stormy conflicts in the Legislature and in conventions, have always been irreconcilable; and I think it, therefore, fortunate that, by the authority of law and of the Constitution, we can now admit Western Virginia as a State into the Union. I confess, also, that I shall welcome it now with peculiar pleasure when I see that her people have provided for the ultimate extinction of slavery, and when she comes here knocking at our door with the tiara of freedom upon her brow. I think, therefore, that considerations of expediency, as well as of constitutional power, justify me in this vote. This region of Virginia which it is proposed to admit embraces forty-eight counties, with a sufficient population for a State, and with great industrial resources. Its people are almost, if not entirely, unanimous in the desire to be admitted into the Union; and while Eastern Virginia has been surrendered almost entirely to this wicked conspiracy and unnatural rebellion, the people of Western Virginia have, over and over again, and by repeated votes, in spite of threats from the State government at Richmond and of the confederate authorities, maintained their adherence to the Government. I think there is something due to them for their fidelity and patriotism.
I must acknowledge I was surprised and pained when I saw this morning the Representative from the young State of Kansas opposing the admission of this new State of Western Virginia. In the dark and troublous times, when the heel of the invader was upon the prostrate people of Kansas, and when, with much more irregularity than that which now surrounds this constitution, even according to the argument of the gentleman himself, the people of that State organized and sent to us the Topeka constitution, I was glad to stand by them in this Hall and to say that the spirit of the Constitution having been complied with and the people desiring that relief, we ought to open the door and welcome Kansas into the Union. At last, after years of struggle here, her call was heeded and she is now in the glorious sisterhood of States; and I was therefore the more pained when I saw her talented and eloquent Representative interposing objections which seemed to me to be more technical than of substance to the granting of the petition which the oppressed people of Western Virginia have sent here, following to some extent the example set by Kansas. And now, sir, I will yield to my friend from Kansas to enable him to ask his question.
Mr. CONWAY. I sought to interrupt my friend from Indiana for the purpose of inquiring whether the recognition of the President was not the first given to the new government, and whether the recognition by the Senate and the admission of the Senators from Virginia was not based upon the recognition of the Executive, it being assumed that the recognition of this State was an executive function, and having been performed by the Executive, that the matter was determined. I so understood it, and therefore I leveled my remarks and objections against this proceeding towards the President.
My friend says that this proceeding was not protested against at the time and has not been protested against up to this time. I must correct him in that. I have protested against it for myself from the commencement, both as a citizen and as a member of this House. I presented almost substantially the same views as I have uttered here to-day, at the last session of Congress.
And now, permit me to say further that I have no earthly objection to the people of Western Virginia becoming a State of this Union. I think that they are entitled to be such, and I am only sorry that my judgment interposes itself at this time against my giving my vote for their admission; but I believe that there is a principle involved which affects not only this case of Western Virginia, but which touches more interests, and interests of greater magnitude, than any which have ever been brought to the consideration of this House prior to this great struggle.
Before I conclude, I should like to say further that there is no analogy between the case presented in this bill, and that presented by the people of Kansas, when they solicited admission into the Union under the Topeka constitution. This is not the application of a Territory for admission as a State. This is the application of the people of a portion of a State for its division. There is a most substantial and important difference. If the people of Western Virginia had stood in their relation to this Government as a Territory, as the people of Kansas stood at that time, and they had come forward for admission, however irregularly – if they had even come up spontaneously by the people and solicited admission – I would have been willing to have voted to admit them, on the ground that the action of Congress, in admitting them into the Union, would go back and take effect from the very inception of the movement, and give it legality. It was upon that ground that I maintained the admission of Kansas into the Union under an act of this description. But Western Virginia presents itself in an entirely different aspect. It comes here asking the division of a State, and the point which I make is that it does not show a case in which there is the requisite constitutional sanction for a division. The Legislature of the State has not given its consent to it. It is not necessary for me to go over the reasons why I cannot agree that the Legislature under the Wheeling constitution is the true one.
Mr. SHEFFIELD. I desire to ask the gentleman from Kansas a question.
Mr. CONWAY. I hold the floor only by the sufferance of the gentleman from Indiana.
Mr. COLFAX. Although I think the question of my friend from Kansas rather a long one, I will yield to him further.
Mr. SHEFFIELD. I desire to ask the gentleman from Kansas if the authority of the case which he cited this morning when he was upon the floor was not that the recognition of a government by the Executive alone determined the lawfulness of the character of that government?
Mr. CONWAY. I answer yes, but I impeach the correctness of that decision.
Mr. SHEFFIELD. Oh!
Mr. CONWAY. I insist that the President of the United States has wrongfully exercised his discretion in this case; and that, if this instance is brought in as a precedent for future action, it will involve the entire subversion of our constitutional system.
Mr. SHELLABARGER. I wish to make an inquiry of the gentleman from Kansas. I understand him to take the position that the revolutionary and treasonable action of the members of the state government of Virginia has, in fact and in law, abrogated the government of Virginia; that that government has ceases to be a government, and that thereby the State of Virginia has become a Territory, or a portion of the territory of the United States. If that be his position, and if Virginia has become a territory, then I wish to know, when a portion of the people of that new Territory have formed a constitution, and come asking to be recognized, and admitted as a State of the Union, where there is any constitutional objection to their being recognized and admitted as a State, and whether we have not, again and again, without any enabling act of Congress, admitted States with their constitutions into the Union?
Mr. CONWAY. I will say very briefly, in answer to the gentleman, that this bill does not propose to admit the Territory of Western Virginia as a State. If it did so I should have no objection to urge against it. But the bill proposes to divide the State of Virginia, and to admit that portion of it lying west of the mountains into the Union as an additional State. Now, the point which I make, and which I tried to elucidate, is that they do not come here with the requisite compliance of State legislation as required by the Federal Constitution. I have already briefly discussed the question whether the Legislature that conferred this power is the Legislature of the State, and it is not necessary for me to advert to it again.
Mr. COLFAX. If I remember the question which the gentleman from Kansas rose to ask me some time since, but which he expanded, after stating it, into a speech, it was whether the Senate and the House of Representatives and the Cabinet had been influenced by the executive recognition of the State of West Virginia. I answer him very frankly that I cannot tell. I only know that we have a mass of concurrent testimony proving that at different times and under different circumstances, and, as I said, in nearly all the cases, without any protest from any one being made or heard of throughout the country, the President, the various members of the Cabinet, the Senate, and the House of Representatives have recognized this Governor and Legislature as the rightful authorities of Virginia. My friend from Kansas says that he made protest against it. He never made a protest against the most solemn act, performed by a Cabinet officer, in recognizing that State. That act was the taking of $40,000 out of the national Treasury and paying it to Governor Pierpont as the rightful Governor of Virginia. If this authority is not the rightful authority of Virginia, then the President and the Secretary of the Treasury should be condemned in every part of the Union for daring to assume such power, and to thus squander wrongfully the treasure of the people of the whole Union. But on the contrary, in the opinion of loyal men of all parties and sections, they did right.
My friend from Ohio [Mr. SHELLABARGER] partially anticipated the reply which I had reserved for the question which I knew the gentleman from Kansas would put to me after I yielded to him. The gentleman from Kansas says that if West Virginia had been a Territory like Kansas, the constitutional objection would be out of the way; and he also insists—in which I do not concede the correctness of his argument—that the State of Virginia, the whole of it, is now a Territory. But if that is true, then that Territory, through its Governor and Legislature, has applied for admission into the Union as a State; and the gentleman from Kansas ought to waive his objection to the verbal phraseology of the application. Let me give the gentleman a parallel taken from the history of Kansas herself, and so familiar to both of us. The people of that Territory declared, after they adopted the Topeka constitution, that they were then, in fact, a state, although not yet admitted. They insisted so, and the gentleman stood by them in it. They elected their Governor, and he was imprisoned because he dared to assume the authority of the Governor of Kansas. Nay, more; able jurists insist that a Territory must have virtually become a State before she can apply for admission, because the Constitution says that Congress may admit “new States,” not Territories; and that, therefore, Territories must assume the habiliments of States before they apply for admission into the United States.
Then I come back to the objection of the gentleman from Kansas. This Territory, as he calls it, has done exactly what the Territory of Kansas did. She has assumed the habiliments of a State, and her people insist, as the people of Kansas did at that time, that they are a State, and as such they knock at the doors of Congress for admission. Why not then admit them, even according to his own territorial argument?
A few words more, and I will yield the floor to the gentleman from Kansas. The only Governor whom the loyal people of the Union recognize as the rightful Governor of Virginia, asks for the admission of this State. The only Legislature which the loyal people of the country recognize as the rightful Legislature of Virginia, have given their assent to it. The only President whom the loyal people of the country recognize as President has acknowledged them as the rightful authority of Virginia. The only Cabinet whom the loyal people of the country recognize, has, over and over again, recognized the government which sits at Wheeling. The only Senate recognized as the rightful American Senate has not only assented to it by receiving senators from this State, but by stamping its seal of approval on this bill and so far as it is concerned, admitting this State. And this House, the only rightful House of Representatives, gave its recognition last session to Governor Pierpont and the Legislature as the rightful authorities of Virginia; and all that remains now to be done is for this House to reaffirm what it has already done before, and make this history consistent with itself.
Mr. YEAMAN. Mr. Speaker, I do not desire to debate the question but prefer to avail myself of the kindness of the gentleman from Indiana to ask him a question. I understand the theory on which Virginia is now represented in this House and in the other wing of the Capitol to be this: that the ordinance of secession was null and void, and did not take the State out of the Union; that the government at Wheeling is not merely the defacto government, but is the legal government of the people of the State of Virginia, as she heretofore existed in the Union, and that if those disloyal people east of the mountains do not choose to avail themselves of that government, it is their own fault. Now, the question is, if Virginia is already in the Union and is represented on this floor, and in the other end of the Capitol, what need is there for another act to let her in again? If it is intended to divide the State, what fact takes her case out of the constitutional prohibition that no State shall be divided, and no new State shall be erected in the jurisdiction of another State, without the consent of the Legislature of that State?
Mr. COLFAX. I will answer the gentleman from Kentucky with great pleasure. This is not Virginia that is being admitted into the Union. It is West Virginia, a different State. It does not embrace the whole territorial limits of Virginia, and I am glad to say that it does not even embrace all the loyal people of Virginia. It embraces only forty-eight counties. But there are people left in the old State of Virginia, in the Accomac district, along the Baltimore and Ohio railroad, and fronting Washington city, that are loyal. The loyal people thus remaining are not many, to be sure, as far as we know now; but I trust that in time they will be enough, with the power of the Government aiding them, to leaven the whole mass. These people, loyal as they are, are left with old Virginia; but what we propose to admit by this bill is a different State. It is West Virginia.
Mr. MORRILL, of Vermont. I desire to ask the gentleman from Indiana a single question. He speaks of the new State of Virginia as having been recognized by the President, and all the members of the Cabinet, and especially by the Secretary of the Interior, he having returned the apportionment under the late census to the new State. Now, what I desire to ask is this: whether this House is bound to admit the whole number of Representatives to which Virginia is entitled from this new State of Virginia?
Mr. COLFAX. Mr. Speaker, I will answer that question. By the laws now existing on our statute-book it is provided that a State shall be apportioned for congressional purposes; that members shall be elected by single districts; and that the territory embraced in those districts shall be contiguous. We provide, in this very bill, that the new State shall have representatives, leaving the remainder to old Virginia. I therefore answer the question of the gentleman from Vermont unhesitatingly in the negative. When he makes me say that we recognized the government of Virginia as a new government, I must have been unfortunate in the choice of my language, or else he does not quote me correctly. I said, I am quite certain, that the authorities recognized this as the government of Virginia--as the government, not as the new government.
Mr. HUTCHINS obtained the floor.
Mr. OLIN: With the consent of the gentleman from Ohio, I desire to propound a question to the gentleman from Indiana, [Mr. COLFAX.] The gentleman from Indiana has argued this constitutional question with great ability, but I wish to make of him one inquiry. What will become of the bonds and other obligations which she has issued or incurred as a State, by the recognition of the new State of West Virginia?
Mr. COLFAX. I will answer the gentleman from New York with a great deal of pleasure, but he will permit me to answer his somewhat after the Yankee fashion—we are both of sufficiently Yankee origin to warrant it—by asking another question. I ask the gentleman what became of the obligations of the State of Virginia when Kentucky was cut off from that State and admitted into the Union? What became of the obligations of the State of Massachusetts after Maine was cut off and admitted into the Union?
Mr. OLIN. I will answer the gentleman with pleasure that Vermont, as a State, and Massachusetts, as a State, responded to their obligations; and, in both instances, the division was by the consent of the Legislatures and people of both portions of the territory to be divided.
Now, Mr. Speaker, I am rather disposed to vote for this bill; but I confess I shall do it with great reluctance. I do it mainly because the various branches of the executive Government have recognized and encouraged this attempt to set up a State government in Western Virginia and also because the other branch of the Legislature have recognized such government by admitting to its floor two Senators as members of its body. But I confess I do not fully understand upon what principles of constitutional law this measure can be justified. It cannot be done, I fear, at all. It can be justified only as a measure of policy, or of necessity.
Why, sir, it must be obvious to gentlemen in this House that at the time of this attempted secession, however void that act was, the whole framework of the State government of Virginia was in the hands of those who have taken arms against the Government, including the executive, legislative, and judicial authority of the State. The whole government was unfortunately in the hands of those who have taken up arms against the General Government. Neither the forms of law nor anything else to give a shadow of legal authority was in the hands of the friends of the Union. It was simply a movement of the people without any of the forms of law, when the formation of a State government was attempted by the people of Western Virginia. I do not complain of it, much less condemn it; it was a matter of necessity; I applaud them for it; but it was in every sense, as against the State of Virginia, a revolutionary movement, justifiable only by the necessity of the case, and because of the abandonment of every principle of law, duty, and obligation, which ought to have bound these secessionists to the Union. The people of Western Virginia were justified by that great “higher law” of self-protection and of fidelity to the Union.
Now, the gentleman from Kansas who has just spoken in opposition to this measure, stated, as I understood him, that he regretted a territorial government was not created for Western Virginia. Territorial government! What “in the name of all the gods at once” [laughter] could justify the creation of a territorial government in a part of Virginia, one of the original thirteen States of the Union, with all her rights and immunities guaranteed by the Constitution, never having had since the formation of the Constitution a territorial existence?
While our authority to admit this portion of Virginia into the Union as a separate State may be a doubtful one, and I admit it is; while I am not clear that we have the power legally to do it, yet there are in favor of it a thousand probabilities, in a legal point of view, compared with the authority to create a territorial government in any part of Virginia. It is true, military governments have been erected in various States and in different portions of States; but such military governments are not created or established by virtue of any act of Congress. Congress has no power to create such military governorships. The authority to do it grows out of the exigencies and necessities of war. It is only when the civil authority is silent amidst arms that the executive and military power steps in of necessity and establishes a government. This proceeding is sanctioned by the rules and practices of war, which have been sanctioned by all nations through all time. The Constitution gives no authority for it. It does not grow out of any constitutional provision, nor of any right guarantied [sic] by it.
Mr. CONWAY. I would like to ask the gentleman where Congress gets the authority to create a territorial government in any instance in a territory conquered by the arms of the United States?
Mr. OLIN. Congress has authority under the Constitution, as I understand it, to make all needful rules and regulations for the government of the territories of the United States. That doctrine was never questioned until this new-fangled doctrine of squatter sovereignty was invented about the year 1848. Until that period this interpretation of the Constitution was never questioned by anybody. Now, when the Government of the United States conquers a territory, and it becomes subject to the control of the United States Government, Congress may regulate its affairs just as well as the affairs of any other territory within its jurisdiction, and may establish a territorial government.
Mr. CONWAY. May they not do it in the conquered territory of Virginia?
Mr. OLIN. No.
Mr. CONWAY. That is the point at issue.
Mr. HUTCHINS rose.
Mr. OLIN. Oh, the gentleman shall have his hour. I hope he will allow me to finish what I have to say.
Mr. HUTGHINS [sic]. I merely wanted to inquire whether the gentleman is through with his question to the gentleman from Indiana, [Mr. COLFAX.] [Laughter.]
Mr. OLIN. Nearly through, [laughter.] Now I wish to make myself understood in reference to the power of Congress to create a territorial government within the limits of a State of the Union. There is no question as to its power to create such a government in a mere territory of the Union, whether acquired by purchase or acquired by conquest, but it would not require a very lengthy argument to make the distinction between that case and the creation of a territorial government within a State obvious and plain, certainly to the mind of any lawyer.
Mr. CONWAY. I hope the gentleman will not represent me as asserting that Congress may establish a territorial government in any State of the Union, for I have said no such thing.
Mr. OLIN. If I have misrepresented the gentleman, I should be very happy to be corrected upon that point. I understood him in the opening of his remarks to express his regret that a territorial government was not established by the Congress of the United States over Western Virginia. Perhaps I was mistaken.
Mr. CONWAY. No, sir, the gentleman was not mistaken in that; but the gentleman was mistaken in asserting that I declared Western Virginia to be a State of this Union. On the contrary, I insisted that such was not the fact.
Mr. OLIN. I understand the gentleman, and I am very happy to afford him the opportunity for explanation. I see that I did not misrepresent him. The gentleman is a disciple of that theory which prevails to some extent in this as well as at the other end of the Capitol, that the act of secession passed by the convention of the State of Virginia, although void and treasonable, although an act calling for the condemnation and reprobation of all loyal men, yet it somehow had that peculiar efficiency that enabled it to take the State out of the Union.
Mr. CONWAY. No, sir.
Mr. OLIN. How, then, in the name of God, did Virginia get out of the Union? [Laughter.]
Mr. CONWAY. If the gentleman had done me the honor to pay the slightest attention to the remarks which I submitted to the House an hour or two ago, he would have known better the position I took in this controversy.
Mr. OLIN. I would thank the gentleman from Kansas to make himself better understood. I listened to him with great patience.
Mr. CONWAY. I will, with the permission of the gentleman, and at his request, restate the position which I hold in that regard. I maintain that the act of secession has no virtue or effect whatsoever, of any kind; that it transcends the powers of the State; that is, that it is in violation of the State constitution; that it is as much treason to the sovereignty of the State as to the Federal Government; and that it is treason to the Federal Government because it is treason to the sovereignty of the State. I hold that any proceeding under that act is without law—that the individual is upon his own responsibility in that regard. I maintain that a State can only be released from its obligations to this Union by a revolution; that a State may proceed to the extent of becoming a belligerent Power or an absolute nationality. I maintain that, in this instance, in reference to these rebellious States, they have acquired a belligerent character which gives them an international status which is entirely incompatible with the Federal status. They are beyond the Federal system. I hold that in consequence of this action, in consequence of this process, the States stand where they may be regarded by the House as a foreign Power, and where we can make war upon them as a foreign Power. They are a belligerent Power for the purpose of war, and in dealing with them we are not governed by the Federal Constitution. Our relations are not such as are established by the Constitution, but we are governed by the principles of international law. Standing as they do in this position toward us, when we extend our conquest over them we reduce them to the condition of a territory the same as that we acquired from Mexico when we made war upon that republic. If we took territory from that Government we would have sovereign power over that territory and the right to exercise it as we may think proper. Therefore I maintain, in regard to West Virginia, that it has fallen into our possession by conquest and by the loyalty of the people of that portion of the State of Virginia; and, having fallen into our possession, it is within our power to govern that people as military dependents, and to grant to the inhabitants such privileges and powers as we may think proper. I regretted that we did not institute a territorial government in Western Virginia in the beginning of this war, so that the people there might be able to emerge from the preliminary organization and solicit us to admit them into the Union in the character of a State. Such is the position I hold, and I hope that the gentleman is satisfied.
Mr. HUTCHINS. I hope that the gentleman from New York has got through with his question.
Mr. OLIN. I am nearly through with it. Mr. Speaker, I have now heard the explanation just made by the gentleman from Kansas. The sum and substance of it is this—I will reduce the gentleman’s argument to a nutshell—[laughter]—it is, that the act of secession was void. He is a lawyer, and understands the full force and meaning of that term. But notwithstanding the act of secession is void, he holds that if a certain number of individuals, a majority, if you choose, of the State, make war upon the General Government, the minority which remains in the State of Virginia, and who are faithful to the Constitution and who still claim the protection of the General Government, are nevertheless subject to be governed in all respects by Congress, and have forfeited all the rights which they are entitled to enjoy as citizens of one of the States in the Union. In other words, the gentleman holds that though the act of secession was void, it took the State out of the Union, and crushed to the earth the rights of all who attempted to remain faithful to the Union.
Mr. CONWAY. That is what I want to know.
Mr. OLIN. It was the duty of the General Government to protect those who were faithful to the Union. So long as a loyal man could be found in the State of Virginia it was the duty of the General Government to throw around him the shield of its protection, and secure every right under the Constitution of the United States.
Mr. CONWAY. Undoubtedly.
Mr. OLIN. You are not trying to do that. That is no answer. I do not incorrectly state the gentleman’s position. It is just about equal with the humbug doctrine of secession. I think that the act of secession was one which ought to have brought the most condign punishment upon the head of its authors; but the gentleman from Kansas holds that, although it was void, it works upon every citizen in Virginia who remained loyal to the Union, somehow or other, a forfeiture of all his civil and legal rights as a citizen of that State, and also works a forfeiture of their rights under the Constitution of the United States.
Mr. RICHARDSON. Will the gentleman permit me to ask him a question?
Mr. HUTCHINS. I object.
Mr. OLIN. I cannot yield. I am at the mercy of the gentleman from Ohio. [Laughter.]
Now, while I am up, I wish to say a few words more. I said that I intended to vote for this measure. I voted against it at the last session of Congress. I shall vote for it now with reluctance. I shall vote for it mainly upon the ground that the General Government, whether wisely or unwisely I will not undertake to say, has encouraged this movement to create a division of the State of Virginia. In the other branch of Congress they admitted, as the representatives of the State of Virginia, two Senators elected by the Legislature assembled at Wheeling. We have recognized their acts as those of a de facto government of that State. Perhaps it was a necessity. I admit that it was so. I had hoped, and still cling to that hope, that the old State of Virginia, with the glorious memories which clustered around her in former years, will yet be an honored member of the Union, clothed and in her right mind.
I dislike to enter upon this process of disintegration. Everything which we consider worthy of respect and admiration, everything we cherish in the memories of the past, is clustered around these old landmarks, which define and give point to our early history. Born in Vermont, I recognize her glorious history as a part of my inheritance, and I would not see her ousted out of the Confederacy. When the Confederacy was opposed to her she fought the battles of the Confederacy. She stood alone and fought on her own behalf the battles of the Revolution. She not only did that, but she fought New York upon one side, and New Hampshire upon the other. [A Voice. And whipped them both.] Yes, as my friend says, whipped them both. [Laughter.] She came into the Confederacy, and these landmarks and that history are gloriously identified with the history of this Union. I dislike to see that history broken into fragments.
I dislike to see this measure passed, but I have made up mind to it as a question of necessity, and, a I said upon the floor of Congress at last session, God being my helper, anything I can do, or aid in doing, which is necessary to preserve the Union of the States, I am ready to do. I am ready to suffer, and I hope this House has patriotism enough to be impelled by the same motive.
Thanking the gentleman from Ohio [Mr. HUTCHINS] for his courtesy, I yield the floor.
Mr. HUTCHINS. I shall occupy the attention of the House but a moment; and in the beginning I will answer the question which my friend from New York [Mr. OLIN] put to my friend from Indiana [Mr. COLFAX] in relation to the public debt. Here is the provision of the constitution of West Virginia in reference to that matter:
“An equitable portion of the debt of the Commonwealth of Virginia prior to the 1st day of January, 1861, shall be assumed by this State, and the Legislature shall ascertain the same as soon as may be practicable, and provide for the liquidation thereof by a sinking fund sufficient to pay the accruing interest and redeem the principal within twenty-four years.”
Some gentlemen seem to argue this question as though it were one for the admission anew of the old State of Virginia. That is not this question, though I admit that it would not hurt old Virginia to be born again in this bill, if it sought to accomplish that object. This is simply providing for the division of the State, and the constitutional question did not bother me in my vote. I was bothered last session simply because the constitution of the State did not provide for the abolition of slavery. I thought the people of Western Virginia had seen enough of the evils and bad influences of slavery, and had suffered too much from its iron heel, to permit slavery to exist an hour in their new government.
But there is a provision in this bill which, if it passes, will remedy to some extent that difficulty. It is that all children of slave parents born after the 4th of July, 1863, shall be free; all slaves at that day under ten shall be free at the age of twenty-one; all over ten and under twenty, shall be free at twenty-five; and no slaves shall be brought into the State with a view to a permanent residence. It does provide for the gradual abolition of slavery there; and although I could wish it had been more immediate and direct, I believe that the people are better than the politicians of Western Virginia; for, though the members of that convention failed to submit to the people the proposition whether they would or would not abolish slavery, the people themselves, without being invited to do so, and without any form of law to that effect, by a large majority in most of the counties, voted against slavery. I think this is a guarantee that the new State of Virginia will in process of time be a free State. Therefore, reluctant as I was last session to vote against this bill, I must cheerfully vote for it now.
Mr. BINGHAM. I desire to have a vote upon the bill, and at the suggestion of many friends I demand the previous question on the engrossment and third reading of the bill.
Mr. CRITTENDEN. I desire to make a few remarks upon this subject, and would like an opportunity to do so.
Mr. THOMAS, of Massachusetts. I hope the gentleman from Kentucky will be heard.
Mr. ROSCOE CONKLING. I ask permission to appeal to the gentleman from Ohio a moment. I understand the gentleman from Kentucky desires to be heard upon the bill, and although I do not desire to be heard myself, I appeal to my friend to afford an opportunity to the gentleman from Kentucky for that purpose.
Mr. THOMAS, of Massachusetts. There is another Representative from the State of Virginia [Mr. SEGAR] who certainly ought to be heard before this debate is closed.
Mr. BINGHAM. I will make a proposition to the House, and if they will consent to it I will withdraw the demand for the previous question. It is that all debate upon this bill shall cease at one o’clock to-morrow [sic] that a vote be then taken.
By unanimous consent, the proposition was agreed to.
Mr. BINGHAM. I now withdraw my demand for the previous question.
Mr. CRITTENDEN. I have not much to say upon this subject, and therefore shall speak briefly. I have no feeling upon this matter. I regard it much more calmly than my friend from Indiana [Mr. COLFAX.] With him it is a matter of feeling and a matter of sympathy. With me, in the consideration I have given to it, it is a matter of principle and constitutional law. These are views which may appear a little stale in this body. From long usage and long habit of regarding the Constitution of the United States as the only safe basis upon which we can act, the only safe rule we can follow in peace or in war, in prosperity or adversity, I must be excused for regarding this subject, not upon the broad and vague ground of my sympathies or my feelings, but upon the ground of the great policy of this nation, and the Constitution of the nation.
I feel for the people of Western Virginia. I appreciate their patriotism and their valor, and I appreciate their wish to become, as expressed by their Legislature, a free people. I have a proper regard for all that; I have a proper respect and a healthy sympathy for them; but when I am called upon to give my judgment and to cast my vote, I must look to the Constitution of my country. I see there that no State can be divided and another State made out of its territory without its consent. That is in positive and unequivocal language. Now, what are we asked to do? Make a new State out of Western Virginia.
Sir, can any argument make stronger the case than the mere statement of the question? The Constitution says you shall make no new State within the jurisdiction of another State without its consent. You are asked to make Western Virginia into a State. The Constitution requires that the State of which the new State has formed a part shall give her consent. Where is there room for doubt. If the Constitution which we have sworn to support is to be the rule of our action, I ask you, in all calmness and all sobriety of feeling, is not the rule plain?
There was a Virginia once by that simple name-- a great name at one period of our history, and one of the original formers of the Constitution. She made it. She never was admitted into the Union; she formed it; she is a part of the original creation and being. Does she ask to be admitted? No. But a part of that State wishes now to be formed into a new State, and to be admitted into the Union as an independent State. Is not that so? Is there any ingenuity or any technicality which can change the face of the facts?
You say that old Virginia no longer exists, and therefore can give no consent. Is there one man here who can be misled and blinded by such hypercriticism? We know the fact to be otherwise. We know that at this time old Virginia is in a state of rebellion, which we are endeavoring, by all the means in our power, to put an end to; a rebellion which once put an end to, will restore her to her constitutional place in the Union just as she existed before. You cannot admit a new State out of her boundaries without her consent, says the Constitution. That is the limit of your power, and that is enough to settle this question. You are appealed to and your power is invoked now to make this a new State. It seems to me that you cannot do it. I do not presume to argue with you on this question, because it seems to me that the very statement of it is an argument stronger than anything that I can urge. We have heard a great deal of imagination and of sympathy. That does not make constitutions. That does not sustain empires. It is not out of such stuff as that that the great, the majestic pillars have been reared that support the mighty fabric of this Republic. This question is to return to you. Remember that! Look to the future. Is there a man here who does not contemplate the restoration of this Union, and the restoration of all these States to it? If Virginia were to-morrow [sic] to lay down the arms of her rebellion and to ask to be admitted into our councils, to be part of us, as she is by the Constitution to-day [sic] to be actually what she is constitutionally, what could you say to her if you had created a new State out of her territory? What could you say to her? Do you believe that with the pride which ought to belong to one of the States of this Union, the State would agree to come back, not as she was, not with the boundaries she had, but cut up and divided and made into different States, to come back with circumscribed and diminished power as a State? Can you expect such a thing? Suppose, then, this question of peace or war, the restoration of the Union or the continuation of hostilities depends upon Virginia coming back, and coming back as she went, coming back as she was when she made this Constitution; coming back whole and entire as Virginia, not as Eastern and Western Virginia, but coming back as Virginia. I warn my friends from Western Virginia to look to the future. You to-day [sic ] make them a new State, and interests rise up around them. Peace is to come in a few years, and we here are to be appealed to on another side of this great question. You will be told that we had no power to admit this State, and you will be obliged to acknowledge it. Old Virginia will come back and say, “I gave no consent, and there is the Constitution which says that without my consent you shall not do what you have done, and now you cannot deprive me of my rights by any such unconstitutional course of procedure.”
Mr. BLAIR, of Virginia. I take it, from the gentleman’s argument, that he is not aware that the Legislature of Virginia has given its consent to the formation of this new State. It is probable, however, that he does not recognize the government at Wheeling as the government of Virginia. If that Legislature be the Legislature of the State, and it has given its consent, then the whole people of Virginia have given their consent, and the constitutional requirement is fully met.
Mr. CRITTENDEN. That is one of the arguments to which I had a general allusion when I spoke of the strange arguments and fancies which had been employed upon this question. The gentleman’s argument supposes that the government at Wheeling is the government of Virginia. Does he not know that the contrary is the fact? Do we not all, in point of fact, know the contrary? Do we not know that the contrary is the fact? Do we not all, in point of fact, know the contrary? Do we not know that the Legislature of the old State of Virginia is sitting, for aught I know, at this very moment, in the city of Richmond, and has never discontinued its sessions there? Sir, the argument puts me in mind of one I somewhere read long ago. Pending the war of our Revolution the great principle on which America contended against British taxation was that it was among the privileges and rights of every Englishman and of every freeman to be represented in any assembly that was to have the power to tax him, and that the colonies were not represented in the British Parliament. And suppose that a statute had passed long before that, when we were of little consequence, annexing the colonies which are now the United States to the borough of Old Sarum, and it should have been contended in Parliament that the people of the colonies, through the representatives of Old Sarum, were represented in the British Parliament! Now, we are gravely told that a seceding part of the State of Virginia—seceding, it is true, on the virtuous side, but still a seceding part of the State—is the government of Virginia. All the world knows it is not; and no one knew better than this Legislature that it represented perhaps only thirty or forty counties out of the one hundred and fifty in the State.
Mr. HUTCHINS. I understand the gentleman from Kentucky to argue that the legal Legislature of Virginia is now in session at Richmond. I wish to suggest whether there is not a provision by which every member of a State Legislature is required to take an oath to support the Constitution of the United States; and can there be a legal Legislature in this Union without that? Now, have the members of that Legislature at Richmond taken the oath to support the Constitution of the United States?
Mr. CRITTENDEN. Sir, I will not be drawn into the discussion of such technical questions. I appeal to the broad facts which are known to us all, and upon them I stand. I do not go upon constitutional or legal fictions at all. They are all in the gentleman’s favor. I go upon the facts, upon the truth in the case, and every man here knows it. I agree with the gentleman that in law the Legislature at Richmond is just as illegal as this whole rebellion. I agree to that, but that does not make the Wheeling government the government of the whole State of Virginia, except by a mere fiction. We know the fact to be otherwise.
But now let me examine for a moment the argument founded on that fiction. Suppose that the Wheeling government does represent the whole State of Virginia, as the gentleman from Ohio holds; how does the matter then stand? This Legislature is here applying to be admitted as a new State, and at the same time and in the same character consenting that they themselves shall be so admitted! What does it amount to but that here is an application to make a new State at the instance of the parties desiring to be made a new State, and nobody else consenting, and nobody else left to consent to it?
Mr. BLAIR, of Virginia. I would remind the gentleman from Kentucky that there were other counties besides those embraced within the boundaries of the proposed new State represented in the Legislature of Virginia that gave this consent. It was not composed exclusively of counties included in the new State; and, if, as I remarked before, it was the Legislature of the State, it spoke the voice of the people of the whole State, and the constitutional requirement is complied with.
Mr. CRITTENDEN. Sir, I wish I could understand that the consent of the residue of the State of Virginia had been given to the separation of this portion of it.
Mr. BLAIR, of Virginia. It was given through the Legislature that represents the whole State.
Mr. CRITTENDEN. Well, that is coming back exactly to what I said. It is the party applying for admission consenting to the admission. That is the whole of it. If that is not clear in itself, nothing that I can add to it will make it clearer. These States will come hereafter and ask that this war shall cease, and that they shall be as they were, part and parcel of this Union. Will you continue the war for the purpose of supporting the new States that are made out of the old ones? If you can do this, can you not also, without any consent on the part of the people of North Carolina, divide that State and make up new States just as your armies progress, setting aside the necessity of consent on the part of the Legislature? If you can dispense with that, you can make States at pleasure. And when hereafter the Union comes to be reestablished, will it be, as you say it ought to be, the Union as it was, or will it be a new-made Union—the old, majestic body of the Union cut and slashed up by parties, by passions, by war, coming to form another Government and another Union? Suppose this reunion should take place, and you found that these seceded States themselves have divided themselves up so as to give them a majority of Senators—would you admit them? Though they should come and say, “We have had all the sanctions of the de facto governments; let us come in as we are:” would you admit them in that form? If not, let us not set ourselves the example of this.
Mr. Speaker, there is another question to which I invite your attention. The old State of Virginia, when she embraced east and west, owed a large debt. She owes it to this day. Who is to be bound for that debt? Is the new State? How is this debt to be divided?
Mr. BLAIR, of Virginia. I regret to have occasion again to interrupt my friend from Kentucky, but I do so in order to give him, perhaps, some information on that point.
Mr. CRITTENDEN. I shall be very happy to receive it.
Mr. BLAIR, of Virginia. In regard to the public debt, the constitution framed by the convention of the people of the proposed new State of West Virginia, binds the new State to pay its just proportion of whatever public debt the State of Virginia owed prior to the ordinance of secession. And here let me state—for I do not propose to discuss this question before the House—the feast to which the people of West Virginia will be invited in case Congress refuses to give us this. This pretended government, of which John Letcher is the head and front, has issued, as we are informed and believe, the bonds of the State o Virginia, and lent them to the confederate government, in order to carry on this iniquitous war. Now, sir, when the whole State is restored, if we do not succeed in this measure, what will be the result? The very first Legislature that meets will pass a law binding the whole state of Virginia, east and west, to the payment of this debt loaned to the confederate government for the purpose of breaking up this Government. And what hope have we for the future?
Mr. CRITTENDEN. I only knew, Mr. Speaker, that in this bill there was no provision made for a division of the State debt. The gentleman tells us there is provision made for it in the constitution, and I am satisfied with that. That was only a question of mere expediency which I wished to suggest; but although a matter of expediency it was also a matter of justice. If it has been attended to, I have no more to say about it. All that remains is the constitutional argument, that the Constitution gives us no power to do what we are asked to do. That is my conviction, sir; and I have endeavored to express it. I leave it entirely to the judgment of the House what shall be done, foreseeing that when the restoration of peace shall be made to depend on the reconsideration of this question, the people of the United States will not continue at war for the sake of maintaining, the unconstitutional act as I believe it, which we are going to perform. Being in heart the friend of the people of West Virginia, admiring their course and conduct, my judgment and conviction of public duty forbid me to aid in consummating the act which they desire us to do.
Mr. EDWARDS. Mr. Speaker, I deemed it my duty at the last session of Congress to vote against the admission of this new State; and as it is my purpose to vote in favor of this bill at this time, I desire to give briefly the reasons which influence me in changing my opinion, and which justify me, as I believe, in giving the vote which I shall give whenever the question shall be taken. The reason why I voted against this bill before, was that I then hoped that before this day the whole State of Virginia would have been brought into subjection to the Union, and restored to its place in the galaxy of States. I have been disappointed in that; and I believe now, as a matter of expediency, that this measure is one which is calculated to weaken and do much towards suppressing the rebellion as it exists in that State. Therefore, if it is a constitutional measure, it is one which, in my judgment, it is expedient for this House to pass. I see the rebel armies in Virginia holding in check the armies of the Union. I see them line the banks of the Rappahannock. Eastern Virginia bristles with more than two hundred thousand bayonets and gleams with all the other implements and enginery of war. I see distrust manifested all around us of our ability, before another winter shall pass away, to break the power of those armies and to compel that State into submission. Therefore, if the measure is constitutional, and if it will have, as I believe it will, a tendency to break the power of the rebellion in Virginia, I shall go for it now, and in good faith.
Now, sir, on the question of constitutionality, it was properly said by the gentleman who opened this debate that there were but two questions presented here—one the constitutional power of this Congress to admit the State, and the other the question of expediency. In regard to the first, it seems to me that the only question that exists is the single one of whether the State of Virginia, by its Legislature, has consented to the formation of this new State within its boundaries? The Constitution of the United States clearly contemplates the formation of a new State out of the territory of an existing State. Its language presupposes that a case of this kind would be likely to occur in the progress of the country, and therefore provides for it. This is the clear and admitted interpretation of that provision. That being the case, the only question now relating to the question of power is whether the State of Virginia, through her Legislature, has consented to the formation of this State. On that subject I do not intend to go through the history of the proceedings in Virginia, eastern or western, but shall rest my vote on these grounds: first, that there was no legal Legislature or government in Virginia after that government put itself in the attitude of rebellion against the United States, and refused to conform to the constitutional provisions necessary to constitute it a government, without which the Legislature of a State can have no legal existence; secondly, that in the absence of any legal government in Virginia, a convention of the whole people of Virginia was called, which convention framed a government for the State, and that the legislative branch of the government thus established consented to this admission of West Virginia as a State. If these premises are true, they certainly show the consent of Virginia, by her constituted authorities, as created by that convention in the absence of any State government legally and constitutionally organized.
But it is said that the whole State was not represented in the convention. To this it may be answered, it is enough if the whole people of the State were properly warned to be present. Notice, it is understood, was given to all. If all did not choose to be present and act, then the action of those who did assemble and act is just as legal and constitutional as if all had assembled and acted. If any notified were prevented from being present, it is not alleged that they were prevented by those who ask the creation of the new State, and are to be comprised within its limits.
But it is said, further, that there may be some difficulty about the public debt of Virginia. Well, sir, if Virginia remains in rebellion, if she succeeds, in conjunction with others of the southern States, in establishing the independence of the southern confederacy, where then, I ask, will the creditors of that State, many of them living in the northern States, go for the collection o their debts? What is the market value of the securities of the State now under the circumstances of her rebellion? Sir, if I had bonds of that State in my possession, I should consider them worth far more with the new State of Western Virginia in the union as a free State, with her industrious population, she having provided in her constitution to assume her just proportion of all the debts of the State, than if the old State remained entire and wasting the resources of both its eastern and western portions in supporting the rebellion.
Again, it is said that we should be establishing a bad precedent if, under the present circumstances, we carve out a new State and admit it into the Union. For myself, I do not believe we shall be establishing any precedent at all, except that it may be in the possible contingency of a precisely similar case arising. In such case, it is true there might be a reasonable expectation that we should apply the same rule. But it is not likely that another similar case will arise. And further than that, if one shall arise, it is not at all imperative on Congress to admit the State that should apply. It is merely optional in any case, and should a precisely similar case occur, its decision would and should be governed by the surrounding circumstances, notwithstanding the consent of the Legislature of a State. If, on the question of the propriety of dividing its territory, Congress should deem it inexpedient, it could so decide and there would be nothing in the decision now made to control its action. I cannot see, therefore, that the admission of this proposed State at this time can give rise to any embarrassment to the future action of Congress.
But it is said by the honorable gentleman from Kentucky [Mr. CRITTENDEN] that when a reconstruction of the Union shall take place, if Virginia is to come back into the Union, she must come back entire, and that the action it is now proposed to take will throw embarrassment in the way of her coming back at all. Let me ask the gentleman from Kentucky whether he expects that Virginia, as he regards Virginia, with her Legislature, as he regards that Legislature—I mean the Legislature assembled at Richmond—will ever consent to come back into this Union, unless it is by virtue of the exercise of the extremest power of the Federal Government? And let me ask him whether if she shall come back by virtue of the exercise of that power, thus compelled to return, if he expects she will have the right to claim to be received imprecisely the same condition she occupied before her rebellion, or whether it will not be in whatever circumstances or situation she finds herself when she is compelled to return? It will hardly be admissible for her when compelled to come back to say that a portion of her former territory has been carved out without her consent and has established its allegiance to the Government while she was in rebellion, and therefore she will not come back unless that portion is restored to her.
Much is said about reconstruction of the Union. How this is to take place time alone can reveal. As for myself, I can see no other means than by the exercise of all the powers of the Government. If it cannot be done by such means, it will not in my judgment be done at all. I think, as I have had occasion to remark before, that it will be reconstructed by the power of the States which remain loyal to the Union. It will be done with the assistance of Maryland, of Kentucky, and of Missouri, which now stand firm in their allegiance. Virginia will be compelled to come back as a State, or be reduced to the subjection of a territorial government by the military power of the Federal Government. It may be necessary that she shall be overrun, desolated, depopulated and repeopled—a terrible alternative, and only to be justifiable by inexorable necessity. The Union will be reconstructed by these means, or it will never be reconstructed at all. Sustain the loyal sentiment in North Carolina, sustain the loyal sentiment in Tennessee, sustain the loyal sentiment everywhere, and then, if there is power enough in this Government to do it, the Union will be restored in its integrity, and we shall again become a homogeneous people, and again move on together in our wonted career of prosperity, with rapid strides in the pathway of national wealth and greatness.
Mr. WICKLIFFE. I understood the gentleman from New Hampshire to speak of peopling the State of Virginia with a new people. What does he propose to do with the present population—exterminate them, drive them off, or make them slaves?
Mr. EDWARDS. I answer the gentleman that if it were necessary to exterminate the whole people of Virginia in order to preserve the integrity of the Union, I should go for it without hesitation, if we had the power.
Mr. WICKLIFFE. Women, children, and all?
Mr. EDWARDS. Women and children are not to be found in arms. Women and children are entitled to the defense and protection of every civilized people. My remarks, therefore, had no application to them.
Mr. MAYNARD. This is an application to admit a new State into the Union. It is composed of the territory embraced within the limits of forty-eight counties named in the bill, and known to the geography of the country. It comes with a constitution undeniably republican in form. What objection then to its admission? The most obvious, and indeed the only one seriously urged, is that it is already a part of the Union, constituting a portion of the State of Virginia.
The reply to that objection is that the Legislature of the State of Virginia, as the requirement of the Constitution is, has assented to the proposed division of the State, to the separation of these forty-eight counties from its ancient limits and to their admission as a new State into the Union.
That an old State may be divided has been settled by not one case alone, but by several since the commencement of our Government and the formation of its Constitution. I need only instance the division of North Carolina by the separation of Tennessee, the division of Massachusetts by the separation of Maine, and the division of Virginia herself by the separation of Kentucky.
But it is urged that the Legislature of Virginia which has given its consent to the separation is not the Legislature of the State of Virginia in fact or in law. I shall not argue that question as much length. I should hesitate to do it in opposition to the very high and venerable authority which has addressed us upon the other side of the question from that to which my mind is inclined, were it now presented for the first time. At the last session, I had occasion to discuss this very point at some length upon the proposition to admit the member from the Accomac district of Virginia to a seat upon this floor. If I mistake not my venerable friend from Kentucky [Mr. Crittenden] stood side by side with me upon that occasion. I recollect that, in order to maintain the position then assumed by those in favor of according to the claimant his seat, it was deemed necessary to sustain the present Wheeling government of Virginia as the regular legal or constitutional government of that State. But we are told now that the actual Legislature of the State of Virginia is in Richmond. Can it be that a State shall have two Governors at the same time, or that there shall be two Legislatures going on simultaneously and contemporaneously with each other in the same State, both to be recognized by the General Government? I suppose that will hardly be contended. The question, then, is: both of these Governors and both of these Legislatures professing to represent the State, which shall the Government of the United States recognize as the true and lawful Legislature of Virginia? That is the question; and it is one which, as has been well said, has been settled in every department of the Government; which we ourselves have twice settled in the admission of two members upon this floor coming accredited from the Governor at Wheeling.
Mr. CRITTENDEN. Will the gentleman permit me to interrupt him for a moment? I understand him now as endeavoring to show inconsistency on my part, between the position taken by me in the admission of a member to this floor and that now taken.
Mr. MAYNARD. Not in the least. God forbid that I should take up the time of the House with the matter of personal consistency or inconsistency of any gentleman, and especially for a gentleman for whom I entertain feelings of so profound respect and veneration as for the gentleman from Kentucky.
Mr. CRITTENDEN. The distinction in the two cases is perfectly clear and distinct.
Mr. DAWES. I would like to ask the gentleman from Tennessee a question.
Mr. MAYNARD. I yield to the gentleman for that purpose.
Mr. DAWES: Does the gentleman not know that the authority derived by Governor Pierpont for issuing his proclamation, under which the gentleman from the Accomac district [Mr. Segar] was elected a member of this House, was not derived from any Legislature of Virginia, but from a convention composed of the delegates from thirty-nine counties of Virginia? In every one of the primary assemblies, so far as I have been able to trace them, the question discussed as the object of electing delegates, the declaration of the primary meetings, was that the election was of delegates to a convention, not for the purpose of reestablishing or setting in motion the government of the State of Virginia, but to erect a new State government in West Virginia. That convention, so far as it came up in the primary assemblies, and the act was of a provisional character, assembled for that purpose. It was then, for some reason, which I understand t have emanated from Washington, that they concluded the only practicable way of accomplishing that end, to wit, the erection of a State government in Western Virginia, must be through the action of that convention to set in motion a State government to be called the State government of the whole of Virginia. Then, that that government should have two things to do: first, to set up a new State within itself; and secondly, to give its consent. I want to ask my friend if he does not suppose that the article in the Constitution which provides for the consent of the Legislature of Virginia in order that this new State should be erected, means that the consent of that portion which is left shall be obtained? I now ask him, if in any true sense or spirit of the Constitution he can say that that part of Virginia which is left has consented at all to its dismemberment? I ask him whether he can say more than this: that this new State, within itself, has consented to the doing, by this bill, what is now proposed? He will not pretend that the portion of the old State which is left has consented to the erection of this new State; at least, I do not think he will.
Mr. MAYNARD: The gentleman has asked me a long question. I do not know whether he is yet through with it. If he had waited until I had concluded the remarks I wish to submit, I think he would have been answered.
Mr. DAWES. The truth is, that these answers are in general. I ask my friend from Tennessee, in all courtesy to him—and he will excuse me if I have interrupted him in his remarks—I ask him for a direct answer, for I know the answers have been general heretofore, whether there was a single vote from the portion of Virginia that is left; whether there is the vote of anybody representing the territory that is left in any shape whatever, and in any assembly whatever, consenting to the erection of this new State of Western Virginia? I ask him whether he thinks he is complying with the spirit of the Constitution, when this mere form has been gone through with that is proposed by this bill?
Mr. BLAIR, OF Virginia. I have already stated in answer to the gentleman from Kentucky, that several of the counties not embraced in the new State gave their consent to the formation of the new State of West Virginia.
Mr. DAWES. Let me reply to that. I took some pains to examine this matter. I affirm again that nobody has given his consent to the division of the State of Virginia and the erection of a new State, who does not reside in the new State itself. When it must be admitted that there is nobody in Virginia, in that part which is left, that has consented, I submit that this question assumes a different form from that which gentlemen give it. It seems to me that this bill does not comply with the spirit of the Constitution. If the remaining portions of Virginia are under duress, and while under duress this claim of consent is made, it seems to me that it Is a mere mockery of the Constitution.
Mr. BROWN, of Virginia. The gentleman from Tennessee will permit me. I do not understand the gentleman from Massachusetts. Do I understand him to say that nobody representing counties outside of the new State gave consent to the formation of the new State? Is that what the gentleman means to assert?
Mr. DAWES: There is no use of misunderstanding ourselves in this matter. It is true that a representative was picked up—I say it with all respect—in Fairfax, and that two or three gentlemen in other parts of the State were procured; but they protested that they did not pretend to represent the counties from which they hailed. So far as I know, I do not believe there is a single person representing any portion of that part of Virginia which is left, who ever consented to the erection and admission of this new State. Not one.
Mr. BLAIR, of Virginia. I wish to ask the gentleman from Massachusetts a question: are not the southern States recognized in this Congress? Are the laws which we pass a nullity there, because they have chosen to be unrepresented? I think not. And so it is with regard to the State of Virginia.
Mr. DAWES. When the proportions of this rebellion shall have so increased that we will sit here a minority, and not a constitutional quorum of this body, and attempt to pass laws, then it will be that we will have the question which the gentleman has presented as a serious question for our consideration, but not till then. We are a constitutional body, not only in all of its forms but in all of its substance. I stood up here in reference to the gentleman from Accomac, [Mr. SEGAR,] protesting that the putting anybody into this house without the consent of the people he assumed to represent was trifling with the spirit of the Constitution. As I stood then I stand to-day [sic]. It is trifling with the spirit of the Constitution to say that any portion of the State of Virginia which is left has consented in any way, in any form and substance, to the dismemberment of the State.
Mr. BLAIR, of Virginia. Let me make one more correction of the gentleman from Massachusetts, and it is this: the whole State of Virginia was invited to send delegates to this convention and to send delegates to the Legislature. I suppose that the gentleman from Massachusetts will not deny that the convention represented the sovereign will of the loyal citizens of the State of Virginia. That convention-then representing the loyal people of Virginia – consented to the erection of this new State. I think that is a full answer.
Mr. DAWES. A man is bound hand and foot, he is incarcerated in prison, and yet he is commanded to come forth. This is the stone which we gave to Virginia under the pretense of giving her bread.
Mr. MAYNARD. The gentleman from Massachusetts is very consistent in presenting in a renewed shape the arguments which he addressed to the House against the admission of the gentleman from the Accomac district (Mr. Segar) at the last session-derision, sneering derision at the body of patriotic men of the old Commonwealth of Virginia he had been delegated to represent. He was met with reasons, and was answered upon his reasons, and my friend from the Accomac district is in his seat, ready, at the will of his immediate constituents, to oppose this measure when he shall obtain the floor.
Mr. DAWES. Every argument I addressed to the House upon the admission of the gentleman from Accomac to a seat in this body was sustained by a majority of this House; and he was denied admission at that time. He presented himself here again, more nearly representing the body of his constituents than he did before. When he came here with only five hundred votes, I lifted my voice against his admission, and the House heeded it. When he returned with more votes, I was instructed by the Committee of Elections to submit the facts to the House. I abstained from expressing any sentiments averse to his admission.
Mr. MAYNARD. The House has not forgotten what occurred on those occasions. The gentleman from Accomac came here with a certificate of election from Governor Pierpont, and with a very limited number of votes. His election was held to be irregular and illegal, and he was denied a seat. The same Governor issued another writ of election, and an election was held. Upon presenting himself with another certificate of election, the gentleman was admitted, and he is now here, deriving his authority from the government at Wheeling.
I agree with the remarks of the gentleman from Kentucky (Mr. Crittenden) upon the occasion, with reference to the proceedings of that Governor, when he said:
“Shall we undertake to overrule the decision upon a matter committed to him after he was given, in accordance with the forms of law, under the broad seal of the State, a certificate, under his authority, that this gentleman was regularly and legally elected?”
“I say therefore, that we ought to look with an indulgent eye upon the proceedings of States in a convulsion of revolution, where a few loyal men are bravely struggling to maintain the Union, and where the laws are all in conflict. In this day of rebellion and of anarchy and confusion, we see Virginia making an effort to sustain her relations with this Government, and to maintain the Union and Constitution. One of the first acts of her resurrection from chaos was to order this election.”
I concur now, as I did then, most heartily with those views. As I previously remarked, we have again and again, in every department of the Government of the United States, recognized this Government of Virginia. But further: if he never had recognized it-if the question were up now for the first time, I say we ought to recognize it.
Who are the people of Virginia that the Government of the United States are to recognize? Are they the rebellious and traitorous many, or are they the loyal and devoted few? Even put it upon that ground, and we ought to recognize it.
But it is intimated by the gentleman from Massachusetts that a majority of the Legislature which voted for the separation of the State was composed of people residing within the portion to be cut off. Let me put a case: suppose it were proposed to divide the State of Pennsylvania, and the part which is sought to be erected into a new State is the western portion, and by chance a little the larger portion, and so entitled to a majority of the members in the Legislature; suppose that majority should vote for a separation , while the representatives from the other part of the State voted against it: would that affect the constitutional question whether the Legislature had given its consent? The fact might affect our minds, as a question of expediency, whether with such a consent as that we ought to ratify the action and admit the part cut off as a new State. And if gentlemen think there is anything in the supposition that a majority of Legislature of Virginia which gave its assent in this instance came from that portion of the State proposed to be converted into a new State, let him have the benefit of it as a question.
I do not propose to argue that point any further. But it is said-and it was in view of that position that I sought the floor to make a few remarks-that Virginia is out of the Union, that she is a foreign country, in a state of war with us, and not capable of giving any assent or consent in the premises. That involves a very serious and important consideration. It involves no less than the question of the right of secession, and the legal effect of what we call secession.
Every secessionist says that Virginia is out of the Union, whether he comes from State of Kansas, or from the State of Arkansas. I am not a secessionist, and I hold that secession is illegal, and a nullity, that of itself it amounts to simply nothing, and that no act under it amounts to anything. It is said that physical power may deprive us of any one of our thirty-four States. Undoubtedly that may be so. If, in a war with Great Britain, the State of Maine should be taken from us by physical force, and we were obliged to make a treaty of peace, upon the principal of uti possidelis, of course the State of Maine is gone. But physical power is one thing, constitutional and legal right another. I hold that no act of a Legislature, or of a convention, or of a popular vote, can sunder the relation of any of our States to the present Union, whatever may be done by foreign war or domestic violence.
Take, for example, my own State, where the Legislature, in secret session-by what majority I do not know-passed an ordinance of separation and submitted it to the people upon a canvass of something more than three weeks, which resulted in voting the State out of the Union; in the middle counties by an immense majority, in the western counties by a majority not so large; and against an immense majority in my own portion of the State; I ask whether such action could have any legal effect? Could it change either the government or the constitution of Tennessee, which provided for its own amendment, but in another way; or change the relation of the State to the United States? Did it change the relation of the loyal men? If it did, and Tennessee became a government foreign to the United States, then is every citizen in it an alien enemy; then is every East Tennesseean who, by thousands, sent me here to represent them that I might be instrumental in procuring them assistance and giving them protection, an alien enemy; and every one of them who is now fighting under your flag ought to be seized as prisoners of war, and held as such until exchanged.
Such doctrine as that is monstrous. It is a doctrine I did not suppose was entertained by anybody except the despots in Richmond and those in sympathy with them. Are we foreigners to the flag under which we were born? Are we alien enemies? Have we no rights as American citizens? Those are monstrosities by which men, through their vagaries, and their wild, crude theories, have been carried away from reason and common sense. Virginia is in the Union and has never been out of it. Her Legislature, representing her loyal people, has assented to a division by which this portion of the State shall be admitted as another sister into the beautiful constellation which clusters on our flag.
I admit that I have brought myself to consent to vote for this measure with great reluctance. There are memories clustering about the name of Virginia associated with our earliest recollections. That proud old State has been one of the noblest and most honored of our Confederacy; and if I were to treat of this matter as a sentimentalist, I would say let her remain as she came from the great hands that formed her; let her boundaries extend from the tide-water to the waters of the Ohio. But that us a natter if sentiment, and this is no time to indulge in sentimentality. I am aware of the difficulties under which her people have labored for many long years. They are not unlike the difficulties which have embarrassed my own portion of my own State, the western portion of North Carolina, and the northern portion of Georgia.
There dwell in those regions people whose habits, whose modes of life, and whose pursuits are unkindred and uncongenial with those of the neighboring portions of the States. It so happens that within the last few weeks I have paid a visit to that portion of Virginia now proposed to be formed into a new State. I found there in that mountain region one of the loveliest portions of the United States. I found there a people loyal and devoted to your flag, desiring to be formed into a State by themselves, with power to manage their own local and domestic affairs. They spoke with feeling and with deep entreaty upon this subject. They said, as their Representatives have said here, that if you bind them, or which is the same thing, keep them bound to the dead carcass that lies floating many a rood on the eastern side of the Blue Ridge, their fate for long, long years, if not for generations and ages, is sealed. They begged that they might be disenthralled, and that they might be permitted to go forward in that career of prosperity for which their habits and the peculiar position of their country fit them. I cannot turn a deaf ear to their appeal. Nor do I regard it of grave importance that in some future event, in the reconstruction of this country and the suppression of this rebellion, and the reestablishment of the authority of our Government, the pride of old Virginia may be wounded by seeing her mountain sons set up as rival Commonwealth. Virginia, in common with the other rebellious regions, has earned it all. She has only herself to thank for her fortune. As to standing here and inviting her back, have we not been doing that? Have we not been appealing to her and asking her to come back ever since the 22nd of July, 1861, when, on motion of my friend from Kentucky, (Mr. Crittenden,) we passed a resolution declaring that it was the purpose and the object of the prosecution of this war to reestablish the authority of the Government, and to bring back the States unimpaired, and to bring back the States unimpaired, and with their authority restored as it was?
What has been the response that has come from Virginia? It is no time to mince words with treason or with traitors, whether individuals or communities. We stand here, or we should stand here, to do what is right, and to do justice without reference to whether it may exactly gradate with their sensibilities or with the nicer and finer feelings of State pride. All these States have burdened themselves with a load which they will carry for years, if carry it they do. Treason, rebellion, succession, war, have been brought upon them by their own bad, bold men, and with them be consequences. We are not responsible for them. I am far from thinking that it would be just to the people of Western Virginia to keep them waiting, with scarcely the form of protection, until such time as we may be able by the force of our arms to compel the rest of the State to obedience to our authority, and then to attach to them those portions of the State that have been loyal, and whose sons have been fighting in our ranks ever since the war began. I have no difficulty, sir, upon that point. We talk of restoring this Union. The first thing we have to do is to suppress the men in arms – to put down the hostile armies. Until that is done, we cannot hope to succeed. In order to do that, we must, in my opinion, made a wide, deep, and broad distinction between loyal men and disloyal men. Why, sir, we have been prosecuting this war in such a manner that has been much safer, even within our own lines, for a man to be a rebel and a traitor than to be a loyal man. We have protected the traitor most sedulously and carefully, in the hope that by diligent nursing and assiduity we might coax him back to his allegiance.
What is the result? That he is very safe under the protection of our arms, and quite safe from the rebel forces, but the loyal man is only safe so long as our arms prevail, and when they are obliged to withdraw he must become a fugitive and a refugee. I am tired of this mode of waging war. I am tired of the policy which would say to those loyal men in Western Virginia, these patriots whose sons have poured out their blood like water upon our battle-fields, “you must stand aside until we have drawn into our embrace the rest of your State, and then we will turn you over to them, and let them take care of you, and give you the benefit of their tender mercies.” I am for the policy which says to them, “come into the Union; take your position as one of the sisterhood States; we give you every privilege, every guarantee, every right unimpaired, as you had it before the war began.” That is the policy; that is justice; that is right. And with these views, I shall vote for the bill.
Mr. BINGHAM. I propose to discuss this question briefly, in reply to some of the remarks which have been made.
Mr. STEVENS. I understand that we are to vote upon this bill at some fixed hour tomorrow, and I should like to occupy the floor for a few minutes. I suppose the gentleman from Ohio desires to close the debate.
Mr. BINGHAM. I yield the gentleman a portion of my time.
Mr. STEVENS. Without intending to occupy a very great deal of the time of the House - because what little time I have is by the indulgence of the gentleman from Ohio – I wish to give the reasons for my vote. I have had great difficulty in determining how I ought to vote upon this bill as a question of policy, and I can hardly say that I have yet made up my mind; but, as at present advised, I shall vote for the admission of this State, and I desire to state the grounds for so doing. I do not desire to be understood as being deluded by the idea that we are admitting this State in pursuance of any provisions of the Constitution. I find no such provision that justifies it, and the argument in favor of the constitutionality of it is one got up by those who either honestly entertain, I think, an erroneous opinion, or who desire to justify, by a forced construction, an act which they have predetermined to do. By the Constitution, a State may be divided by the consent of the Legislature thereof, and by the consent of Congress admitting the new State into the Union.
Now, sir, it is but mockery, in my judgment, to tell me that the Legislature of Virginia has ever consented to this division. There are two hundred thousand, out of a million and a quarter of people, who have participated in this proceeding. They have held a convention, and they have elected a Legislature in pursuance of a decree of that convention. Before all this was done the State had a regular organization, a constitution under which that corporation acted. By a convention of a large majority of the people of that State, they changed their constitution and changed their relations to the Federal Government from that of one of its members to that of secession from it. Now, I need not be told that that is treason. I know it. And it is treason in all the individuals who participated in it. But so far as the State municipality or corporation was concerned, it was a valid act, and governed the State. Our Government does not act upon the State. The State, as a separate and distinct body, was the State of a majority of people of Virginia, whether rebel or loyal, whether convicts or freeman. The majority of the people of Virginia was the State of Virginia, although individuals had committed treason.
Now, to say that the Legislature which called this seceding convention was not the Legislature of Virginia, is asserting that the Legislature chosen by a vast majority of the people of a State is not the Legislature of that State. This is a doctrine which I can never assent to. I admit that the Legislature were disloyal, but they were still the disloyal and traitorous Legislature of the State of Virginia; and the State, as a mere State, was bound by their acts. Not so individuals. They are responsible to the General Government, and are responsible whether the State decrees treason or not. That being the Legislature of Virginia, Governor Letcher, elected by a majority of votes of people, is the Governor of Virginia—a traitor in rebellion, but a traitorous Governor of a traitorous State. Now then, how has that State ever given its consent to this division? A highly respectable but very small number of citizens of Virginia—the people of West Virginia – assembled together, disapproved of the acts of the State of Virginia, and with the utmost self-complacency called themselves Virginia. Now is it no ridiculous? Is not the very statement of the facts a ludicrous thing to look upon—although a very respectable gentleman, Governor Pierpont, was elected by them Governor of Virginia? He is a most excellent man, and I wish he were the Governor elected by the whole people of Virginia.
The State of Virginia, therefore, has never given its consent to this separation of the State. I desire to see it, and according to my principles operating at the present time, I can vote for its admission without any compunctions of conscience, but with some doubt about the policy of it. My principles are these: we know the fact that this and other States have declared that they are no longer members of this Union, and have made, not a mere insurrection, but have raised and organized an army and a power, which the Governments of Europe have recognized as a belligerent Power. We ourselves, by what I consider a most unfortunate act, not well considered—declaring a blockade of their ports—have acknowledged them as a Power. We cannot blockade our own ports. It is an absurdity. We blockade an enemy’s ports. This very fact of declaring this blockade recognized them as a belligerent Power, entitled to all the privileges and subject to all the rules of war, according to the law of nations.
Mr. MAYNARD. I would like to ask the gentleman whether, if the city of Cincinnati, or any other city in the Union, rebelled against the Government, it would not be lawful for the Government to surround it and cut it off from all communication, and whether the blockade does anything more than that?
Mr. STEVENS. Ah; but there is a mode of doing it. Declaring a blockade is admitting the power of those you blockade. We should have repealed the law creating these ports of entry, and thus stopped their intercourse with the world.
Mr. SHEFFIELD. I should like to ask the gentleman from Pennsylvania whether Portugal did not blockade her own ports?
Mr. STEVENS. She closed the ports of entry by the repeal of the laws making them ports of entry, as all nations have a right to do. That is what is called closing the ports, as was done once on the Black Sea.
Mr. SHEFFIELD. I should like to know whether Spain did not blockade her colonial ports in South America?
Mr. STEVENS. I never heard of it.
Mr. SHEFFIELD. Perhaps the gentleman will find out the fact.
Mr. STEVENS. After the colonies had become a Power, Spain blockaded their ports, thereby recognizing them as a Power.
Mr. THOMAS, of Massachusetts. I understand the suggestion of the gentleman from Pennsylvania to be, not that we might not blockade these ports, but that if it was not necessary to blockade them, and that we might have shut them up without resorting to an international blockade, as in the case of Russia and the Circassian ports.
Mr. SHEFFIELD. I ask whether Russia and this country did not unite in a protest against Spain attempting to do that with her Spanish-American colonies, and whether they did not say that was a sufficient reason for the recognition of those rebellious colonies?
Mr. STEVENS. I do not recollect the fact, but it may be so. If Spain recognized the colonies as a belligerent Power, she had a right to blockade their ports. If we had repealed the laws making these ports ports of entry, there would have been no need of a blockade. No nation would have had a right to send vessels there, even though we might not have had a ship of war within a hundred miles. That is, I think, where we made a mistake.
Now, then, sir, these rebellious States being a Power, by the acknowledgment of European nations and of our own nation, subject and entitled to be belligerent rights, they become subject to all the rules of war. I hold that the Constitution has no longer the least effect upon them. It is idle to tell me that the obligations of an instrument are binding on one party while they are repudiated by the other. It is one of the principles of law universal, and of justice as universal, that obligations, personal or national, must, in order to be binding, the mutual and be equally acknowledged and admitted by all parties. Whenever that nutrality [sic] ceases to exist it binds neither party. There is another principle just as universal; it is this: when parties become belligerent, in the technical sense of the word, the war between them abrogates all compacts, treaties, and constitutions which may have existed between them before the war commenced. If we go to war with England to-day, all our treaty stipulations are at an end, and none of them bind either of the parties. If peace is restore, it does not restore any of the obligations of either. There must be a new treaties, new obligations entered into, before either of the parties is bound.
Hence 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 on 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 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 if very respectable and estimable from that locality with us. It was upon the same principle.
Mr. ASHLEY. As I understand it, when the new State is admitted, Governor Pierpont is to move over into Alexandria and remain the Governor of the old State of Virginia; while the two Senators who are now in the other end of the Capitol, from Virginia, will, by the same proceeding, still remain the Senators from that State.
Mr. STEVENS. Certainly. We shall have four Senators, instead of two. I wish they would bring Mason back instead of one of them. (Laughter.)
But, sir, I understand that these proceedings all take place, not under any pretense of legal or constitutional right, but in virtue of the laws of war; and by the laws of nations these laws are just what we choose to make them, so that they are not inconsistent with humanity. 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.
This talk of restoring the Union as it was under the Constitution as it is, is one of the absurdities which I have heard repeated until I have become about sick of it. This Union can never be restored as it was. There are many things which render such an event impossible. Thus Union shall never with my consent be restored under the Constitution as it is with slavery to be protected by it; and I am in favor of admitting West Virginia because I find here a provision which makes it a free State, and because of the very worthy men, who have been sent here to represent the people of the proposed State. I would almost trust them with the freedom of this Union, and that is saying a great deal, for I find that when you admit men here from the slaveholding States, though they may not represent ten men of the owners of slaves, they are constantly going on questions of policy with the friends of slavery, that is, the Democratic party. (Laughter.) They went with them in caucus, and they almost uniformly act with them here. That is the only doubt in my mind. I have no difficulty in respect to the power. That we have it under the belligerent right I have mentioned, I do not doubt, But if I had not almost entire confidence in the people of Western Virginia, and if I had not known their respectable Representatives here, I confess that I should hesitate much in voting for this bill; not because we have not the power under the Constitution to do it, but because I should fear that when once admitted they would use their power, if ever they had it, to reestablish slavery; but I have no fear of it in this instance. I had some hesitation as to how I ought to vote, but I have consulted the acts of the Executive, and I find that while in a great majority of instances in the rebel States he has had but little regard to the Constitution, he has upheld it in only one. In that he prohibits the taking of the property of women and children of rebel men who are in arms with the enemies of the Union. I thank the gentleman from Ohio for allowing me time to explain the reason why, with my views, I shall vote for admission of this State.
Mr. BINGHAM resumed the floor, but yielded to
Mr. ASHLEY, who moved that the House adjourn.
Mr. MAYNARD. I see the gentleman from the Accomac district rising to the floor. I hope he will be permitted to speak upon this question before the vote is taken.
Mr. BINGHAM. The gentleman from Virginia has had an opportunity all day to address the House, but has not availed himself of it.
Mr. SEAGAR. I say to the gentleman that I have reportedly sought the floor, but have not been able to obtain it.
Mr. BINGHAM. With the understanding that the gentleman from Virginia submits what remarks he has to make to-night, and that it is not to be taken out of my time in the morning, I will not object.
Mr. ROSCOE CONKLING. I suppose it is understood that no business is to b transacted to-night.
The SPEAKER pro tempore, (Mr. Aldrich in the chair.) The Chair so understands it.
Mr. SEGAR. I am very desirous of being heard upon this bill, but suffering as I am at the present moment with a rush of blood to the head, it would be very disagreeable for me to go on to-night. I hope, therefore, I shall be indulged in what I have to say in the morning. I move that the House adjourn.
Mr. BINGHAM. I desire to know of the gentleman from Virginia if it is his intention to deprive me of my right to the floor altogether by the course he pursues?
Mr. SEGAR. It is not.
Mr. BINGHAM. The House has limited debate on this bill to one o’clock to-morrow. If they will extend the time until two o’clock the gentleman may be heard in the morning, and I will add what I have to say after he is through.
Mr. THOMAS, of Massachusetts. I move to reconsider the vote by which the debate was ordered to be closed at one o’clock to-morrow.
The SPEAKER pro tempore. The order was made by unanimous consent. By unanimous consent it may be extended until two o’clock.
No objection being made, the order closing debate was extended until two o’clock to-morrow.
Mr. ASHLEY moved that the House adjourn.
The motion was agreed to; and thereupon the House (at a quarter before five o’clock, p.m.,) adjourned.
US House Debate on West Virginia Statehood