Critics of the state argued that creating West Virginia would be unconstitutional, as the United States Constitution required any change in state border to be approved by the legislative bodies of all states involved and the legislative body in Richmond, presently at war with the United States certainly did not approve of chopping off its western border — especially considering the fact that roughly half of that region’s fighting men were staunch southerners giving their lives for places such as Logan County, Virginia.
Wearied by the constitutionality of creating the Mountain State, two days before Christmas, President Lincoln asked his Cabinet for written opinions on two questions regarding the act of admission:
First, Is the act constitutional? Second, Is it expedient?
Upon receiving the submitted letters from his Cabinet, the President’s dilemma worsened. Rather than receive a clear cut answer, he received word of a hung jury. Half of his most trusted advisers assured him that the act was constitutional, whereas the other half stated that creating The State of West Virginia would be anything but constitutional.
When Lincoln had weighed the opinions pro and con thus furnished him, he found reasons of his own to justify him in signing the bill and he put them on paper as a sort of deciding opinion in the case. Below are his words regarding the Constitutionality of West Virginia:
“The consent of the Legislature is constitutionally necessary to the bill for the admission of West Virginia becoming a law. A body claiming to be such Legislature has given its consent We cannot well deny that it is such unless we do so upon the outside knowledge that the body was chosen at elections in which a majority of the qualified voters of Virginia did not participate. But it is a universal practice in popular elections in all these States to give no legal consideration whatever to those who do not choose to vote as against the effect of the votes of those who do choose to vote. Hence it is not the qualified voters, but the qualified voters who choose to vote that constitute the political power of the State. Much less than to non-voters should any consideration be given to those who did not vote in this case; because it is also a matter of outside knowledge that they were not merely neglectful of their rights under and duty to this government, but were also engaged in open rebellion against it. Doubtless among these non voters were some Union men whose voices were smothered by the more numerous Secessionists; but we know too little of their number to assign them any appreciable value.
“Can this government stand if it indulges constitutional constructions by which men in open rebellion against it are to be counted man for man the equals of those who maintain their loyalty to it Are they to be counted better citizens and more worthy of consideration than those who simply neglect to vote? If so their treason against the Constitution enhances their constitutional value. Without braving these absurd conclusions, we cannot deny that the body which consents to the admission of West Virginia is the Legislature of Virginia. I do not think the plural form of the word “legislatures” and “states” in the phrase of the Constitution “without consent of the Legislatures and of the States concerned,” etc., has any reference to the New State concerned. That plural form sprang from the contemplation of two or more old States contributing to form a new one. The idea that the New State was in danger of being admitted without its own consent was not provided against because it was not thought of, as I conceive. It is said the devil takes care of his own. Much more should a good spirit–the spirit of the Constitution and the Union — take care of its own. I think it cannot do less and live.
“But is the admission of West Virginia into the Union expedient? This, in my general view is more a question for Congress than for the Executive. Still, I do not evade it. More than on anything else it depends on whether the admission or rejection of the New State would under all the circumstances, tend the more strongly to the restoration of the National authority throughout the Union. That which helps most in this direction is the most expedient at this time. Doubtless, those remaining in Virginia would return to the Union, so to speak, less reluctantly without the division of the old State, than with it, but I think we could not save as much in this quarter by rejecting the New State as we should lose by it in West Virginia. We can scarce dispense with the aid of West Virginia in this struggle, much less can we afford to have her against us in Congress and in the field. Her brave and good men regard her admission into the Union as a matter of life and death. They have been true to the Union under very severe trials. We have so acted as to justify their hopes and we cannot fully retain their confidence and cooperation if we seem to break faith with them. In fact, they could not do so much for us if they would.
“Again, the admission of the New State turns that much slave soil to free and this is a certain and irrevocable encroachment upon the cause of the rebellion.
“The division of the State is dreaded as a precedent. But a measure made expedient by war is no precedent for times of peace. It is said that the admission of West Virginia is secession and tolerated only because it is our secession. Well if we call it by that name, there is still difference enough between secession against the Constitution and secession in favor of the Constitution. I believe the admission of West Virginia into the Union is expedient.”
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