Opinions of Lincoln's Cabinet
on the Constitutionality of West Virginia

Extracted from
Opinions of President Lincoln and His Cabinet
on Statehood for Western Virginia 1862-1863
by Isaiah A. Woodward
West Virginia History
April 1960

Secretary of State William H. Seward

To the President of the United States

Western Virginia is organized unquestionably with all the constitutional elements and faculties of a State, and with a republican form of government. It, therefore, has a title to be a candidate for admission into the Federal Union. Congress has power to admit new States, but is a power restricted within certain limitations. One of these limitations is that no new State shall be formed or erected within the jurisdiction of any other State without the consent of that State as well as the consent of the new State and the consent of Congress. It is an undisputed fact that the new State of Western Virginia has been both formed and erected within the jurisdiction of the State of Virginia. Has the consent of the State of Virginia to the formation and erection of the State of West Virginia been given, or has it not been given? Upon this point the constitutionality of the Act of Congress now before me turns. The constituted and regular authorities of a State called the State of Virginia sitting at Wheeling, within the jurisdiction of that State, claiming to be the State of Virginia, and acting as such, have in a due and regular manner declared and given the consent of the State of Virginia to the formation and erection of the State of West Virginia within the jurisdiction of the State of Virginia. Thus far the case seems simple and clear. But it is just at this point that a complication begins. If we would unfold it successfully we must first state the existing facts in regard to the constitutional position of the State of Virginia, as well as those which belong to the formation and erection of the new State of West Virginia.

About the month of April, 1861, an insurrection against the Federal Union broke out within the State of Virginia. The constituted authorities, with the seeming consent of a majority of the People of the State, inaugurated a revolutionary war which they have carried to the extreme points of pronounced independence and of the setting up of a pretended revolutionary and belligerent government. The organized political body which has committed this treason, having broken and trampled under its feet the Constitution, and even the Union, of the United States, is still standing in that treasonable attitude within the jurisdiction of the State of Virginia, but it has been dislodged from the portion of that jurisdiction which is contained within ths new State of West Virginia. This organization has not given its consent to the formation and erection of the State of Western Virginia, and in its present attitude it is clear that it neither can nor will give that consent. The State of Virginia having thus fallen into revolution, the people living within that part of its jurisdiction which is embraced within the new State of West Virginia, adhering in their loyalty to the State of Virginia and also to the United States, availed themselves of the fortune of the civil war to discard the treasonable authorities of Virginia, reorganized the State, and with all needful forms and solemnities chose and constituted the public functionaries for the state as nearly in conformity with the constitution of Virginia as in the revolutionary condition of that State was practicable. The State of Virginia, thus organized, appeared in Congress by its representatives in both Houses and was then deliberately acknowledged and recognized by the Executive, as well as by the Legislature of the United States, as the State of Virginia, one of the original members of the Federal Union. This State of Virginia, thus constituted and acknowledged, has given its consent to the formation and erection of the State of West Virginia, within the jurisdiction of the State of Virginia. Why is not this consent an adequate one?

We can object to it only on the ground that the political body which gave the consent is not in fact and in law really the State of Virginia. It is replied with great force that the United States are estopped from assuming that position. I do not think it necessary, however, to rely upon that ground. There is no need of the plea of estoppel when justice can be done without it, and, whatever may be the force of an estoppel in law when it works injustice, it ought not to be allowed in politics when it works in that way. It seems to me that the political body which has given consent in the case is really and incontestably the State of Virginia. So long as the United States do not recognize the secession, departure, or separation of one of the States, that State must be deemed as existing and having a Constitutional place within the Union, whatever may be at any moment exactly its revolutionary condition. A State thus situated cannot" be deemed to be divided into two or more states merely by any revolutionary proceeding which may have occurred, because there cannot be constitutionally two or more States of Virginia. There must and can be, in the view of the Constitution, at all times only one State of Virginia. Here are two distinct political bodies, each asserting itself to be that one Stata of Virginia. Some constituted power must decide this dispute. The point in dispute necessarily affects the Federal Union. No matter whether the one or the other of these two bodies is the real State of Virginia, the Federal Union has authority to maintain within the State, which cannot and must not be left in abeyance, and the body which is truly the State of Virginia has rights and holds obligations upon the Federal Union which must be conceded and fulfilled. The United States must therefore decide for themselves, so far as their rights and responsibilities extend, which of the two political bodies asserting themselves respectively to be the State of Virginia is truly the State, and which is not. The United States are not shut up within a necessity for deciding it in favor of either body. They can say that, although the old organization is for the present moment disloyal, treasonable, and insurrectionary, yet it shall not be deprived of its powers and privileges. Or they may say on the other hand, that this old organization has forfeited and lost" its right to be regarded as a constitutional one, and it shall be suppressed, and a new and loyal one, constituted in its place, shall be acknowledged as the State of Virginia, and dealt with accordingly. It is a practical question, to be decided by the United States upon the grounds of public necessity or expediency, with a view to the best and permanent interests of the State of Virginia and of the United States. As I have already intimated, the question has been heretofore decided by the United States in favor of the new and against the old organization. The newly organized State of Virginia is therefore, at this moment, by the express consent of the United States, invested v/ith all the rights of the State of Virginia, and charged with all the powers, privileges and dignity of that State. If the United States allow to that organization any of these rights, powers and privileges, it must be allowed to possess and enjoy them all. If it be a state competent to be represented in Congress and bound to pay taxes, it is a state competent to give the required consent of the State to the formation and erection of the new State of West Virginia within the jurisdiction of Virginia.

But in reply to this it is said that the new State of West Virginia includes substantially all of the State of Virginia which is actually occupied by and submissive to the re-organized State of Virginia, so that this re-organized State of Virginia must cease to exist the moment that by its consent the State of West Virginia shall have come into the Federal Union. This argument seems to me unsatisfactory and inconclusive. Western Virginia will not then be the State of Virginia, nor will the State of Virginia cease to exist, although, through accidents of Civil War, there shall for the moment be no loyal and constitutional political organization of the state. Within that part of the jurisdiction of the original State of Virginia which will remain, there will still be a State of Virginia, the old State, with its constitutional functions wholly or in part suspended or in abeyance, but capable of complete reconstruction and re-organization by its people, just as the state was re-organized and reconstructed when the government now at Wheeling was organized. If it be said that this is unjust to the State of Virginia, I answer that the constitutional reservation of a right on the part of that State to object to the foundation and erection of a new State within her limits, was a reservation for her benefit. If, through perverseness and disloyalty, a majority of her people, in a revolutionary way, put themselves into a condition in which they cannot and will not assert that right, they cannot by that wrongful and injurious course deprive the loyal people of Western Virginia of their claim to be heard when, in a constitutional manner, they form and erect a new State, or deprive Congress of the power to decide the question as the interests and the safety of the whole country require.

I am therefore of opinion that the Act for the admission of West Virginia is a constitutional one.

Upon the question of expediency I am determined by two considerations. First, The people of Western Virginia will be safer from molestation for their loyalty, because better able to protect and defend themselves as a new and separate State, than they would be if left to demoralizing uncertainty upon the question whether, in the progress of the war, they may not be again reabsorbed in the State of Virginia, and subjected to severities as a punishment for their present devotion to the Union. The first duty of the United States is protection to loyalty wherever it is found. Second, I am of the opinion that the harmony and peace of the Union will be promoted by allowing the new State to be formed and erected, which will assume jurisdiction over that part of the valley of the Ohio which lies on the South side of the Ohio river, displacing, in a constitutional and lawful manner, the jurisdiction heretofore exercised there by a political power concentrated at the head of the James river.

Respectfully Submitted,
William H. Seward

Attorney General Edward Bates

Attorney General's Office
December 27, 1862

The President having before him for his approval a bill passed by both Houses of Congress, entitled an "Act for the admission of the State of West Virginia into the Union, and for other purposes," has submitted to all the members of the Cabinet, separately, the following questions, for their opinion and advice thereon.

1. Is the said act constitutional?

2. Is the said act expedient?

I am of opinion that the bill is not warranted by the Constitution. And, in examining this proposition, I think it will be the more clearly apprehended, if viewed in two aspects: - 1. In the letter of the particular provision, and 2. In the spirit, as gathered from the letter, from the whole context, and from the known object, and

First, the letter - Art. 4, S. 3. "New States may be admitted by the Congress into this Union; but no State shall be formed or erected, within the jurisdiction of any other state, nor any state be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress." I observe, in the first place, that the Congress can admit new States into this Union, but cannot form States: Congress has no creative power, in that respect; and cannot admit into this Union, any territory, district or other political entity, less than a State. And such State must exist, as a separate independent body politic, before it can be admitted, under that clause of the Constitution - and there is no other clause. The new State which Congress may admit, by virtue of that clause, does not owe its existence to the fact of admission, and does not begin to exist, coeval with that fact. For, if that be so, then Congress makes the State; for no power but Congress can admit a State into the Union, And that result, (i.e. the making of the State by Congress) would falsify the universal and fundamental principle of this country, that a free American State can be made only by the people, its component members. Congress has no power to make a State.

It is not very important to my argument whether the last clause of the sentence quoted - "without the consent of the legislatures of the States concerned, as well as of the Congress," do nor do not apply to the case of a new State "formed or erected within the jurisdiction of any other State," as well as to the case of a new State "formed by the junction of two or more States or parts of States." If it do not apply, then, there stands the naked unconditional prohibition of the formation of a new State, within the jurisdiction of any other state - direct, simple, and incapable of being misunderstood.

If, admitting that the clause does not apply, it be claimed that the prohibition is overruled and annuled by practice, in the case of Maine, Kentucky and Tennessee, which were, respectively, "formed and erected within the jurisdiction of Massachusetts, Virginia and North Carolina, I have two, alternative answers - 1. In the absence of proof to the contrary, I assume, that both Congress and the people did obey the Constitution, and fulfill all its requirements, in form and substance. 2. If it be shown that, in those instances, the Constitution was disregarded and broken, still I insist that those abuses, do not absolve us from the duty to obey the plain letter and sense of the Constitution.

But if the clause do [sic] apply, still, in this case, its terms have not been complied with. It speaks in the plural - "the legislatures of the States concerned" - i.e. Virginia and West Virginia. The consent required by the Constitution is not the consent of the State, generally, nor of its Governor, nor its Judiciary, nor its Convention, but "the consent of the Legislatures of the States concerned." And that is not the only instance in which the Constitution vests long important powers in the Legislatures of the States - they choose the Senators absolutely, and they direct the manner in which electors of President and Vice-President shall be chosen. And these are Constitutional functions which cannot be exercised by substitute, nor usurped by any other functionary, The division and allotment of powers, as established by the Constitution is not mere form, but vital substance, dear to our fathers, who designed and used it as a guard against the unity of powers - to prevent the concentration of power in a single hand or a few hands. Here the proposition is to make two states out of one. Each one, of course, must have a legislature, and the Constitution requires the consent of both legislatures, before the thing can be done. Now, it is said that the legislature of Virginia (Old Virginia) has consented; but it is not pretended that the legislature of West Virginia has consented - nor that there is, in fact, any such legislature to give consent.

It is a very grave and important thing to cut up and dismember one of the original States of this nation - for a time, in our national youth, the greatest of all - and if we must do it, it behooves us to know that we are acting within the letter of the Constitution, and with a decent respect for the forms of law.

So much for the letter of the law. Let us now examine a little into the sense and spirit of it.

When the rebellion broke out, all the State authorities of Virginia joined it, and made organized and official, as well as individual, insurrection, against the national government, defying its power, and, in order the more effectually to resist it, inviting invasion from States further South. Still a remnant, chiefly in the northwestern counties, remained faithful; and the duty rested upon this government to protect that remnant; to repel that invasion and suppress that insurrection; and thereby to restore Virginia, as she was before the insurrection, to her proper place in the Union. That was and is the plain constitutional duty of this government; and all that this government has yet done, by legislation, by executive action, or by actual war, has been done with that avowed and only object.

When all the governmental officers of the state of Virginia acting in organic form, had renounced their allegiance to the Constitution, and had risen, in armed revolt against the nation, carrying along with them, into flagrant war, a great majority of the people of the State, this government found itself in a strange and anomalous condition. It was charged with duties which could be neither denied nor evaded; and constrained to the use of powers, which undoubtedly exist in contemplation of law, and yet the modes of their action had not been prescribed, only because the necessity to put those powers into practical exercise had not been foreseen.

In this state of things, we took the only course which lay open before us - a course of prudence, of moderation, and of conformity to the principles and objects of the Constitution. It was our sacred duty to suppress the insurrection, to repel the invasion, to put down the official treason in Virginia, which had perverted all the organic powers of the state, into active hostility against the nation. And in performing this duty, we could do no less than recognize all of Virginia which remained faithful to the Constitution, and which demanded the protection and support of the national government.

In this view, and only in this, we advised and consented to the organization of a new government for Virginia, seated, for the present, in the northwest, where alone it could act in safety. Those who organized that government were a small minority, but they were all that remained to us and to the Constitution. And we all knew (certainly I did) that such a government could not be organized by such a people, at such a time, and under such circumstances, in exact conformity to all the minute requirements and particulars ot the Virginia Constitution. But, for that reason - for the crimes of a comparatively few individuals which render an exact compliance with forms impossible, shall a nation be allowed to perish, a State be blotted from the map of the world? No. God forbid. The substance must not be sacrificed to the forms. Our first great Constitutional duty is to save the nation, and the States: and, if possible, we must save them according to law. But if the two duties conflict, still the greater must be performed, and the lesser must yield, even as a conflicting act of Congress must yield to the Constitution.

We all know - everybody knows - that the government of Virginia, recognized by Congress and the President, is a government of necessity, formed by that power which lies dormant in every people, which though known and. recognized, is never regulated by law, because its exact uses and the occasions for its use, cannot be foreknown, and it is called into exercise by the great emergency which, overturning the regular government, necessitates its action, without waiting for the details and forms which all regular governments have. It is intended only to counteract the treacherous perversion of the ordained powers of the State, and stands only as a political nucleus around which the shattered elements of the old commonwealth may meet and combine, in all its original proportions, and be restored to its legitimate place in the Union. It is a provisional government, proper and necessary for the legitimate object for which it was made and recognized. That object was not to divide and destroy the State, but to rehabilitate and restore it.

That government of Virginia, so formed and so recognized, does not and never did, in fact, represent and govern, more than a small fraction of the State - perhaps a fourth part. And the legislature which pretends to give the consent of Virginia to her own dismemberment, is, (as I am credibly informed) composed chiefly if not entirely of men who represent those forty-eight counties which constitute the new State of West Virginia. The act of consent is less in the nature of a law than of a contract. It is a grant of power, an agreement to be divided. And who made the agreement, and with whom? The representatives of the forty-eight counties, with themselves! Is that fair dealing? Is that honest legislation? Is that a legitimate exercise of a constitutional power, by the legislature of Virginia? It seems to me that it is mere abuse, nothing less than attempted secession, hardly veiled under the flimsy forms of law.

Fortunately, however, even that flimsy veil does not cover the substantial wrong. I think I have already shown that under either construction of the clause of the Constitution above cited, the forms of the Constitution have not been fulfilled. The bill was introduced and has been thus far pushed forward towards its completion, under the erroneous idea that it was in verbal and technical conformity to the Constitution, and therefore, and only therefore, that it could ever ripen into a binding law. That was its only foundation; for I think that no reflecting man will seriously affirm that "the legislature of Virginia" which, at Wheeling, on the 13th of May, 1862, gave its consent (not the consent of Virginia) to the dismemberment of the Old Commonwealth, was, in truth and honesty, such legislature of Virginia as the Constitution speaks of - a legislature representing and governing the whole, and therefore honestly and lawfully speaking for the whole, in a matter which concerns the fundamental conditions of the State, and its organic law.

In proceeding to answer the second question - "Is the said act expedient?" - it becomes necessary to look into the bill itself. It is a strange composition, bearing upon its face, unmistakable marks of haste and inconsideration.

The preamble, after various recitals, gives the consent of Congress, "that the forty-eight counties (which may be formed into a separate and independent state)."

The first section declares "that the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union, on an equal footing with the original States, in all respects whatever," and allows three representatives, until the next general census. But this is immediately followed by a provision. "That this act shall not take effect until after the proclamation of the President of the United States hereinafter provided for." Which proclamation, very possibly, may never happen, for there is no after-provision in the bill, making it the duty of the President to issue it.

Then follows a paragraph (which seems to be only a preamble to 2) to the effect that "it being represented to Congress that, since the convention of the 26th of November, 1861, which framed the proposed Constitution for the said State of West Virginia, the people thereof have expressed a wish to change the seventh section of the eleventh article of said Constitution by striking out the same and inserting the following" - giving the exact form of what Congress chooses to have inserted in the State Constitution! The bill does not inform us when, how, or by whom it was "represented to Congress," that the People wished to change their Constitution so recently made by their convention, and ratified by their own votes, as stated with exact particularity in the preamble. If the people of West Virginia had a right to call a convention and make a Constitution for themselves, what is to hinder them from amending the one or making another by the same means and without waiting for Congress to instruct them what to do and how to do it? It looks hardly. However pure the real motive, it lays Congress open to the suspicion of assuming unconstitutional powers, by dictating to a State, in a matter so important and so enduring as its Constitution.

And the second section brings no relief, but strengthens the suspicion and magnifies the evil. "Therefore, Sec. 2. Be it further enacted, That whenever the People of West Virginia shall, through their said convention, and by a vote," etc. "make and ratify the change aforesaid, and properly certify" etc. "it shall be lawful for the President of the United States to issue his proclamation stating the fact, and thereupon this act shall take effect and be in . . . force from and after sixty days from the date of said proclamation."

In view of this section, it is manifest that the very existence of the Act, even after you have signed it, is made to depend upon the implicit obedience of the people of West Virginia. They must "make and ratify the change aforesaid," and in the precise manner prescribed. They cannot choose new agents to amend their own constitution. They must do it "through their said convention" - the same which sat at Wheeling on the 26th of November, 1861. None other can be trusted! Perhaps that convention is no longer in existence. It was called for a particular purpose, and having done its work, and the people having ratified it - perhaps the convention is functus officio, dead and gone. Surely it was not intended as a permanent institution, to last through all times. Yet that seems to be the idea of the bill, for it fixes no limit of time - whenever the people shall do it, through their said convention.

Again, when all this is done, as ordered, still, the Act may fail and the new State perish in the birth, for want of a proclamation. The bill declares that "it shall be lawful for the President to issue his proclamation"; but it is not his duty to do whatever may be lawfully done. By express Act of Congress it is lawful for the President, by proclamation, as in this case, to close all the Southern ports, but he has not found it expedient to exercise the power.

I need not trouble you with many remarks upon the very awkward shape and inconvenient geographical relations, of the new State, and the still greater awkwardness and inconvenience in which the old state would be left, by the proposed division. Such a division, if now made by force of untoward circumstances, could not long stand. Its evils would not be long endured.

I consider this proceeding revolutionary, all the more wrong, because it is needlessly begun at a moment when we are strained to the uttermost, in efforts to prevent a far greater revolution. If successful, it will be "at once an example and fit instrument" for tearing into pieces the regions further south, and making out of the fragments, a multitude of feeble communities. And, for what good end? We may thereby stimulate the transient passions and prejudices of men in particular localities, and gratify the personal ambition and interest of a few leaders in those little sections. We may disjoint the fabric of our national government, and destroy the balance of power in Congress, by a flood of senators representing a new brood of fragmentary States.

And now, Sir, I give it as my opinion that the bill in question is unconstitutional; and also, by its own intrinsic demerits, highly inexpedient.

And I persuade myself that Congress, upon maturer thought, will be glad to be relieved by a veto, from the evil consequences of such improvident legislation.

All which is, most respectfully submitted,

Ed. W. Bates
Attorney General