Chapter XI: Part II: , 2 Sess. 38th Cong., p. 555 (2)

Mr. Stanton responded more briefly than either Secretary Seward or Secretary Chase, observing, among other things: “I have been unable to perceive any point on which the act of Congress conflicts with the Constitution. By the erection of the new State, the geographical boundary heretofore existing between the free and slave States will be broken, and the advantage of this upon every point of consideration surpasses all objections which have occurred to me on the question of expediency. Many prophetic dangers and evils might be specified, but it is safe to suppose that those who come after us will be as wise as ourselves, and if what we deem evils be really such, they will be avoided. The present good is real and substantial, the future may safely be left in the care of those whose duty and interest may be involved in any possible future measures of legislation.”[194]

One or two excerpts from the opinion of Mr. Welles will indicate the course of his argument in the negative: “Under existing necessities, an organization of the loyal citizens, or of a portion of them, has been recognized, and its Senators and Representatives admitted to seats in Congress. Yet we cannot close our eyes to the fact that the fragment of the State which, in the revolutionary tumult, has instituted the new organization, is not possessed of the records, archives, symbols, traditions, or capital of the Commonwealth. Though calling itself the State of Virginia, it does not assume the debts and obligations contracted prior to the existing difficulties. Is this organization, then, really and in point of fact anything else than a provisional government for the State? It is composed almost entirely of those loyal citizens who reside beyond the mountains, and within the prescribed limits of the proposed new State. In this revolutionary period, there being no contestants, we are compelled to recognize the organization as Virginia. Whether that would be the case, and how the question would be met and disposed of, were the insurrection this day abandoned, need not now be discussed. Were Virginia, or those parts of it not included in the proposed new State, invaded and held in temporary subjection by a foreign enemy instead of the insurgents, the fragment of territory and population which should successfully repel the enemy and adhere to the Union would doubtless, during such temporary subjection, be recognized, and properly recognized, as Virginia. When, however, this loyal fragment goes farther, and not only declares itself to be Virginia, but proceeds by its own act to detach itself permanently and forever from the Commonwealth, and to erect itself into a new State within the jurisdiction of the State of Virginia, the question arises whether this proceeding is regular, legal, right, and, in honest good faith, conformable to, and within the letter and spirit of the Constitution.... Congress may admit new States into the Union; but any attempt to dismember or divide a State by any forced or unauthorized assumption would be an inexpedient exercise of doubtful power to the injury of such State. Were there no question of doubtful constitutionality in the movement, the time selected for the division of the State is most inopportune. It is a period of civil commotion, when unity and concerted action on the part of all loyal citizens and authorities should be directed to a restoration of the Union, and all tendency towards disintegration and demoralization avoided.”[195]

Mr. Blair, likewise in the negative, added little of importance to what Secretary Welles had adduced on that side.

The first and rather hastily formed opinion of Attorney-General Bates has already been given together with an account of the circumstances attending its publication; upon longer reflection he did not greatly change the ground of his original convictions and in an elaborate discussion still reasoned in the negative.[196]

Between these evenly balanced and conflicting opinions of his advisers Mr. Lincoln argued as follows:

The consent of the legislature of Virginia 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 the 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 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 accounted, man for man, the
equals of those who maintain their loyalty to it? Are they to be
accounted even better citizens, and more worthy of consideration,
than those who merely 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 words “legislatures”
and “States” in the phrase of the Constitution “without the consent
of the legislatures 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 into the Union of West Virginia 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 in remaining 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 scarcely 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 coöperation 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 thus is a
certain and irrevocable encroachment upon the cause of the
rebellion. The division of a State is dreaded as a precedent. But a
measure made expedient by a 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.[197]

The bill passed by the House on the 10th was approved by the President on the 31st of December, 1862; after naming the forty-eight counties to constitute the new State the act declares, among other things, that since the convention framed the constitution for West Virginia its people had expressed a wish to change section seven of the eleventh article by inserting the following in its place, _viz._: “The children of slaves born within the limits of this State after the fourth day of July, eighteen hundred and sixty-three, shall be free; and that all slaves within the said State who shall, at the time aforesaid, be under the age of ten years, shall be free when they arrive at the age of twenty-one years; and all slaves over ten and under twenty-one years, shall be free when they arrive at the age of twenty-five years; and no slave shall be permitted to come into the State for permanent residence therein.”[198]

The constitution thus amended was unanimously ratified by the convention, which on a summons of the commissioners reassembled February 18, 1863, and also by the people, to whom it was submitted at an election held on May 26 following.[199] President Lincoln on April 20 issued a proclamation declaring that the prescribed conditions having been complied with, the constitution would go into force in sixty days from that date; the formation of the new State was complete and it became a member of the Union on the 20th of June, 1863.[200]

Daniel Webster, in an address delivered thirteen years before, at the laying of the corner-stone of an addition to the Federal Capitol, had asked: “And ye men of Western Virginia, ... what benefit do you propose to yourself by disunion? If you ‘secede,’ what do you ‘secede’ from, and what do you ‘accede’ to? Do you look for the current of the Ohio to change, and to bring you and your commerce to the tide-waters of the eastern rivers? What man in his senses can suppose that you would remain part and parcel of Virginia a month after Virginia should have ceased to be part and parcel of the Union?”[201] The remarkable prediction of the great orator was fulfilled; his inspired vision had pierced the future. The Old Dominion had separated forever along the line of the Alleghanies.

Before relating the subsequent history of the restored government, it is proper to notice a few important events in the early career of the new Commonwealth. On January 31, 1863, an act passed the General Assembly of Virginia giving consent to the transfer of Berkeley County to the State of West Virginia. The preamble of this act affirms that its people desired to be annexed to the proposed State. The question of transfer, however, was to be decided by a majority of voters at an election to be held on the fourth Thursday of May. If, however, the polls could not be safely opened on that day, the Governor was empowered to postpone the election by proclamation. The commissioners who superintended the polling were to certify the results to the Executive. On February 4 succeeding another act made it lawful for voters in certain districts including twenty-three counties to declare, at a general election to be held on the fourth Thursday of May, whether these specified counties should be annexed to West Virginia. The consent of the Legislature of that State was, of course, made a condition of the transfer, after which the jurisdiction of Virginia over such counties was to cease.

West Virginia statutes of August 5 and November 2, 1863, in words, admit Berkeley and Jefferson counties, and they have ever since been under her jurisdiction. When admitted into the Union it was with a provision in her constitution that she might acquire additional territory; therefore Congress gave its consent in advance and it was not afterwards withdrawn. In brief, West Virginia accepted the transfer and it was authorized by the General Assembly of the Commonwealth of Virginia.[202]

State officers were elected on May 28, when the following unconditional Union candidates, receiving a vote of about 30,000, were chosen without opposition: Arthur I. Boreman, Governor; J. E. Boyers, Secretary of State; Campbell Tarr, Treasurer; Samuel Crane, Auditor; A. B. Caldwell, Attorney-General; also three judges of a court of appeals.

The inauguration of the new State, which was marked by imposing ceremonies, took place at Wheeling, the capital, on June 20, 1863. Mr. Pierpont, the retiring executive of reorganized Virginia, briefly addressed the assembled citizens and urged them not to forsake the flag; he then introduced his successor, whom he pronounced “true as steel.” Governor Boreman in his short speech said that the only terms of peace were that the rebels should lay down their arms and submit to the regularly constituted authority of the United States.

The Legislature of West Virginia convened on the same day. Waitman T. Willey and P. G. Van Winkle were elected United States Senators.[203] In his first message Governor Boreman recommended to the General Assembly the immediate passage of laws effectually to extirpate slavery, and also the enactment of a law that no man should be permitted to vote or to hold office until he had taken the oath of allegiance.

In the Presidential election of 1864, the first held since the adoption of the Constitution in which any State deliberately neglected to appoint electors, 33,680 votes were polled in West Virginia; of this number the Union ticket received 23,223 and the McClellan electors 10,457.[204] Elections had also been held in Louisiana and Tennessee by authority of the governments established there under Mr. Lincoln’s plan of reconstruction; the Republican majority in Congress, however, denied the validity of the organizations in the two States last named and refused to count the votes which they presented. This question will be fully considered when we come to trace the development of the Congressional plan. At the regular State election Governor Boreman was chosen without opposition, receiving 19,098 votes. With the subsequent history of the new Commonwealth the subject of reconstruction is not much concerned.

By the formation of an independent Commonwealth the counties beyond the Alleghanies were withdrawn from the jurisdiction of the restored government, which after the inaugural ceremonies at Wheeling selected for its capital the city of Alexandria, where it continued till May 25, 1865, to exercise its functions in those parts of the Old Dominion within the lines of the Union army. A State government was promptly organized by the election of a legislature and of executive officers. In this establishment the loyal eastern counties participated. Mr. Pierpont was elected Governor for the term of three years beginning January 1, 1864. A Lieutenant-Governor, a Secretary of State, a Treasurer, an Auditor, an Adjutant-General and an Attorney-General were also chosen.

The Governor in his message to the Assembly mentioned slavery as doomed, and recommended the calling of a convention so to amend the State constitution as to abolish the institution forever. In compliance with this suggestion the Legislature, on December 21, 1863, passed an act directing a convention to be held at Alexandria on the 13th of February succeeding to amend the constitution and prohibit slavery in the counties of Accomac, Northampton, Princess Ann, Elizabeth City and York (including the cities of Norfolk and Portsmouth). These with Berkeley County had been excepted from the operation of the Emancipation Proclamation.

None but loyal citizens who had not assisted the insurgents since January 1, 1863, were allowed to take part, and those whose right to vote might be challenged were required to swear support of the Constitution and to declare that they had not in any way given aid or comfort to the enemy.

The convention, consisting of sixteen members, assembled in the new capital at the appointed time and remained in session till April 11 following, when a constitution was adopted.[205] Various amendments, relating chiefly to the regulation of the elective franchise and to the abolition of slavery, were discussed and agreed upon. The work of this miniature convention was ordered to be proclaimed without a submission to the people. It was not, however, recognized by Congress, though the civil government which authorized its formation was permitted to continue under it, provisionally only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, or supersede.

Though the bill for the admission of West Virginia passed both Houses, yet Congress was by no means unanimous in giving its consent to that measure. In the debates, of which a synopsis has been given, the hostility of Thaddeus Stevens and other influential members is scarcely concealed. This opposition to executive policy slowly gathered strength, and by 1863 had become formidable enough to defeat the admission of Representatives from the Alexandria government. The Senators, however, remained, Lemuel J. Bowden till his death, January 2, 1864, when his successor was refused admission, and John S. Carlile till the expiration of his term in 1865.

On the assembling of the 38th Congress, which commenced its first session December 7, 1863, Joseph E. Segar, Lucius H. Chandler and Benjamin M. Kitchen appeared as Representatives from Virginia. On May 17 succeeding Mr. Dawes from the Committee of Elections reported a resolution to the effect that Joseph E. Segar, from the First District of Virginia, was not entitled to a seat in that Congress. The case of Mr. Chandler, regarded as precisely similar, was considered at the same time.

The district which Mr. Segar claimed to represent was composed of twenty counties; of these, Chairman Dawes asserted, only four participated in the election. Polling places were not opened in any other part of the district, the Confederate authorities being in possession of the remaining counties. As there could be no free exercise of the franchise in this situation Mr. Segar, it was contended, was not properly chosen, and, therefore, was not entitled to a seat. The vote cast, though not accurately ascertained, was estimated at 1,677, of which the claimant received 1,300. Because of his loyalty and the sacrifices he had made, the Committee regretted the necessity of deciding against him.

Mr. Segar, speaking in his own behalf, reminded the House that in a preceding election, when he received 559 out of 1,018 votes polled in three counties, he was admitted after a delay of seven or eight weeks; but when he was sent by a larger constituency and came as the choice of four counties he was informed that he had no right to a seat, and some of his colleagues who favored his admission in 1862 voted to exclude him. The Committee’s report, he asserted, admitted the existence of such a State as Virginia. He asked Chairman Dawes a rather embarrassing question when he inquired how a State could have two Senators and no Representative in Congress. In conclusion he pronounced restored State organization and gradual accretion to be the best method of reconstruction.

Concerning the title of Mr. Chandler, from the Second Congressional District, Chairman Dawes stated that of the 779 votes polled in the election 778 were cast for the claimant. For the same reason as in the case of Mr. Segar only a small part of that District was free to participate in the election, and nearly all the votes were polled in the city of Norfolk. The committee reported against his admission on the same ground taken in Mr. Segar’s case.

Chandler, who was permitted to state his case to the House, cited a resolution introduced by his former school-mate, Owen Lovejoy, the well-known abolitionist, authorizing the names of the three Virginia claimants to be enrolled as Representatives. That resolution, however, was tabled and their credentials referred to the Committee of Elections.

In 1860 the Union vote in his District was only 6,712; of that number 2,900, he said, were in Norfolk and Portsmouth; the latter city had cast more votes against secession than the remainder of his District. Great numbers of loyal men, however, left there at the beginning of the war. Electors being under no obligation to vote may allow an election to go by default when one citizen could return a member to Congress. Territorially restored Virginia was larger than Delaware and possessed twice the area of Rhode Island.

The case of Benjamin M. Kitchen, on which the Committee had previously made an adverse report, differed from those of the other two claimants in that he had received nearly all of his vote in Berkeley County, which possessed a sort of wandering character, for it was somewhat uncertain whether it was under the jurisdiction of the new or the old State. What action was taken on the Committee’s report does not appear, but it may be inferred from a facetious remark of one member who observed that, like Segar and Chandler, Kitchen had been privileged to retire to private life. The two former were refused admission by the decided vote of 94 to 23.

Besides endeavoring to win back the wavering, Governor Pierpont was occupied in taking measures for the relief of the distressed. In the vicinity of Norfolk and Portsmouth there was a large number of destitute persons whose natural supporters were still following the declining fortunes of the Confederacy or had been killed in its service. While it was universally agreed that their necessities should be relieved, the military and civil authorities were in conflict as to the mode of providing for them. The President in his efforts to establish amicable relations between the officers of the army and those of the State invoked the assistance of the Governor. As the restored Commonwealth could not be consistently recognized while its capital was in a state of blockade the President by proclamation, September 24, 1863, declared that the interdiction of trade with the port of Alexandria had ceased.

General Butler with headquarters at Fortress Monroe took command of the Department of Virginia and North Carolina November 2, 1863. His predecessors, he asserted, had endeavored to recruit a regiment of Virginians; but after several months of energetic trial their efforts were abandoned. As eastern Virginia claimed to be a loyal and fully organized State, Butler renewed the attempt, whereupon Governor Pierpont protested vigorously. One and a half companies were all the recruits that the Commonwealth would furnish, and these, Butler asserts, were employed to defend lighthouses and protect Union inhabitants from outrages at the hands of their disloyal neighbors.[206] This experience, it may be supposed, did not tend to raise the Alexandria government in the esteem of the Department Commander. We find accordingly that differences soon sprang up between the civil and military authorities. An attempt to regulate the liquor traffic in Norfolk and vicinity was the occasion of an open rupture. Civil officers continued to collect the payments imposed by law on those engaged in the business; the military power, to keep the traffic under better control, undertook to give to a few firms a monopoly of the importation. In this situation many small retailers refused to pay their licenses and were indicted in the local courts. To foil this purpose, General Shepley issued, June 22, 1864, an order providing that “on the day of the ensuing municipal election in the city of Norfolk a poll will be opened at the several places of voting, and separate ballot-boxes will be kept open during the hours of voting, in which voters may deposit their ballots, ‘yes’ or ‘no,’ upon the following question: Those in favor of continuing the present form of municipal government during the existence of military occupation will vote ‘yes.’ Those opposed to it will vote ‘no.’”

Governor Pierpont resented this action and promptly issued a proclamation protesting against it as a revolutionary proceeding in violation of the Federal Constitution, adding, “No loyal citizen, therefore, is expected to vote on the proposed question.” In a vigorous pamphlet discussing the “abuses of military power” he repeated his criticism.

Butler at this point took up the cudgels for his subordinate and in a general order, dated June 30, 1864, discussed the incident at some length. Pierpont was alluded to as “a person who calls himself Governor,” and as one “pretending to be the head of the restored government of Virginia, which government is unrecognized by the Congress, laws, and Constitution of the United States.” The order further recited that as the loyal citizens of Norfolk had voted against the further trial of the experiment of municipal government “therefore it is ordered that all attempts to exercise civil office and power, under any supposed city election, within the city of Norfolk and its environs, must cease, and the persons pretending to be elected to civil offices at the late election, and those heretofore elected to municipal offices since the rebellion, must no longer attempt to exercise such functions; and upon any pretense or attempt so to do, the military commandant at Norfolk will see to it that persons so acting are stayed and quieted.”

A memorial to Mr. Lincoln enlisted his sympathy and secured for Pierpont the assistance of Attorney-General Bates, who on July 11 wrote the President a long official letter setting forth his sense of the serious military encroachment by General Butler upon civil law and the authority of Mr. Pierpont as Governor of Virginia. The Department Commander replied in a communication of forty pages in sharp criticism of the Alexandria government, which he characterized as a “useless, expensive, and inefficient thing, unrecognized by Congress, unknown to the Constitution of the United States, and of such character that there is no command in the Decalogue against worshiping it, being the likeness of nothing in the heavens above, the earth beneath, or the waters under the earth.”

The Attorney-General, who was accused of a design to create a conflict between the civil and the military power, also came in for a share of rather violent criticism. In this altercation each party accused the other of being assisted by only secessionists and traitors.[207]

It was relative to this controversy that Mr. Lincoln, December 21, 1864, addressed to General Butler the following communication:

On the 9th of August last, I began to write you a letter, the
enclosed being a copy of so much as I then wrote. So far as it goes
it embraces the views I then entertained and still entertain.

A little relaxation of the complaints made to me on the subject,
occurring about that time, the letter was not finished and sent. I
now learn, correctly I suppose, that you have ordered an election,
similar to the one mentioned, to take place on the eastern shore of
Virginia. Let this be suspended at least until conference with me
and obtaining my approval.

[Inclosure.]

=Executive Mansion, Washington=, _August 9, 1864_.

_Major-General Butler_:

Your paper of the —— about Norfolk matters, is received, as also was
your other, on the same general subject, dated, I believe, some time
in February last. This subject has caused considerable trouble,
forcing me to give a good deal of time and reflection to it. I
regret that crimination and recrimination are mingled in it. I
surely need not to assure you that I have no doubt of your loyalty
and devoted patriotism; and I must tell you that I have no less
confidence in those of Governor Pierpont and the Attorney-General.
The former—at first as the loyal governor of all Virginia, including
that which is now West Virginia, in organizing and furnishing
troops, and in all other proper matters—was as earnest, honest, and
efficient to the extent of his means as any other loyal governor.

The inauguration of West Virginia as a new State left to him, as he
assumed, the remainder of the old State; and the insignificance of
the parts which are outside of the rebel lines, and consequently
within his reach, certainly gives a somewhat farcical air to his
dominion, and I suppose he, as well as I, has considered that it can
be useful for little else than as a nucleus to add to. The
Attorney-General needs only to be known to be relieved from all
question as to loyalty and thorough devotion to the national cause,
constantly restraining as he does my tendency to clemency for rebels
and rebel sympathizers. But he is the law-officer of the Government,
and a believer in the virtue of adhering to law.

Coming to the question itself, the military occupancy of Norfolk is
a necessity with us. If you, as department commander, find the
cleansing of the city necessary to prevent pestilence in your army;
street-lights and a fire department necessary to prevent
assassinations and incendiarism among your men and stores; wharfage
necessary to land and ship men and supplies; a large pauperism,
badly conducted at a needlessly large expense to the government; and
find that all these things, or any of them, are not reasonably well
attended to by the civil government, you rightfully may and must
take them into your own hands. But you should do so on your own
avowed judgment of a military necessity, and not seem to admit that
there is no such necessity by taking a vote of the people on the
question.

Nothing justifies the suspending of the civil by the military
authority but military necessity; and of the existence of that
necessity, the military commander, and not a popular vote, is to
decide. And whatever is not within such necessity should be left
undisturbed.

In your paper of February you fairly notified me that you
contemplated taking a popular vote, and, if fault there be, it was
my fault that I did not object then, which I probably should have
done had I studied the subject as closely as I have since done. I
now think you would better place whatever you feel is necessary to
be done on this distinct ground of military necessity, openly
discarding all reliance for what you do on any election. I also
think you should so keep accounts as to show every item of money
received and how expended.

The course here indicated does not touch the case when the military
commander, finding no friendly civil government existing, may, under
sanction or direction of the President, give assistance to the
people to inaugurate one.[208]

On the same general subject the President one week later wrote General Butler this brief note:

I think you will find that the provost-marshal on the eastern shore
has, as by your authority, issued an order, not for a meeting, but
for an election. The order, printed in due form, was shown to me,
but as I did not retain it, I cannot give you a copy. If the people,
on their own motion, wish to hold a peaceful meeting, I suppose you
need not hinder them.[209]

It has elsewhere been observed that a Legislature representing what remained of the restored government was chosen at the time of Mr. Pierpont’s election. This body, however, was but the merest shadow of the Assembly of that once proud Commonwealth. Seven Delegates responded to the roll call when the House convened in December, 1863. They adjourned from day to day and on the 9th of that month organized with eight members in the popular branch. Precisely how many Senators composed the upper House does not appear in any notice of their proceedings accessible to the writer; the aggregate number in both chambers, however, is said not to have exceeded 16.[210] This estimate is probably correct; for in the election, February 4, 1864, of a Secretary of State and a Treasurer the total vote on joint ballot was only 14.[211]

It is probable that neither Mr. Lincoln nor Governor Pierpont regarded this organization as anything more than a nucleus around which the loyal elements might rally. Both Congress and the military authorities, however, treated it with scant courtesy. It is not matter of surprise, therefore, that memorials were presented to the United States Senate petitioning for the substitution of a military for this feeble civil government. To offset this movement remonstrances from citizens of Alexandria and from citizens of Loudoun County were offered, January 17, 1865, by Senator Willey, of West Virginia. All the memorials of both classes were referred to the Committee on Territories.

By Mr. Willey credentials of Hon. Joseph Segar, Senator-elect from Virginia, were presented, February 17, 1865, to supply the vacancy caused by the death of Lemuel J. Bowden. Mr. Willey moved that the credentials be read and placed on the files, and that the oath of office be administered to Mr. Segar. The credentials were read and immediately after Mr. Sumner moved that the papers be referred to the Committee on the Judiciary. Senator Willey opposed the reference. The credentials, he believed, were proper on their face; they came to the Senate in due form under the seal of the State of Virginia. Mr. Segar was the accredited successor of Mr. Bowden, who died while a member of Congress. If Mr. Bowden was entitled to a seat his successor was likewise entitled if his credentials were regular and correct.

Mr. Cowan also opposed the reference because he did not think it wise to abandon the policy hitherto pursued in dealing with loyal minorities in the rebellious States. He would be sorry, he said, if these States were repulsed when they were desirous to do all they could to achieve the very end for which the present tremendous struggle was taking place. When Mr. Bowden came to take his seat no such objection was made. A question by Senator Hale developed the fact, however, that Mr. Bowden presented himself before the vote was taken on the admission of West Virginia.

Trumbull believed that a reference of the credentials, just as in the Arkansas case, would bring up the question. Senator Howard, who favored a reference, thought that the entire question of the right of Virginia to be represented in Congress should be gone into. He would thank the committee for a concise account of all the proceedings connected with the election of Mr. Segar and his colleague. He asked whether a State like Virginia, in armed rebellion, could have Senators on that floor.

Mr. Saulsbury pointed out the change that had come over the judgment of the Senate. When Messrs. Willey and Carlile appeared there was, he said, but a corporal’s guard who opposed their right to seats, because Virginia was in rebellion, and it was then held by the minority that Senators should represent the sovereignty of their States. Those who were then most zealous for the admission of the gentlemen claiming to represent Virginia had become most vehement in their opposition to the admission of Mr. Segar.

Senator McDougall believed that to refer the proposition to the committee would be to bury it, and no resurrection, he said, had been proclaimed for any such thing. He had his impressions and was as well prepared to discuss the question then as at any time. Virginia, according to his understanding of the philosophy of the Constitution, was a State of the Union. He believed the Senator-elect, by reason of his credentials, could take the oath, though that was not conclusive of his right to a seat in the Senate.

Henry Wilson, of Massachusetts, believed that Congress because of its action for three years was bound to recognize the existence of both the Governor and Legislature of Virginia. He was disposed, however, to support the motion of his colleague, Charles Sumner, as well as the amendment thereto which authorized the committee to inquire into the election, returns and qualifications in the case of the claimant. Certain parts of Virginia, exempted by the President’s proclamation, were not in rebellion. Every square mile additional over which Federal authority was restored came by the terms of that proclamation into the same condition.

Mr. Willey asserted that the Legislature sneeringly referred to as “the Common Council of Alexandria” represented 216,000 loyal people. He believed that county after county, as fast as they were relieved from the power of the rebellion, would come to the support of the loyal nucleus at Alexandria. It would place the Senate, he said, in a singular position to repulse the claimant while his State was represented by another Senator [Carlile].

Senator Sherman stated that Mr. Segar’s credentials purported to show that he had been elected a member of the Senate on the 8th of December and that they bore date of December 12, 1864. Therefore he had slept for sixty or seventy days on his right to a seat which would, at any rate, expire on the 4th of March. The succeeding Congress, he said, would have ample time to decide the question, for, no doubt, at that time a gentleman claiming to be a Senator from Virginia would present himself. Then it could be deliberately determined. His motion to lay the credentials on the table prevailed by a vote of 29 to 13.[212] When this action was taken Carlile was among the eight absentees.

Pursuant to a proclamation of the President the Senate assembled at noon of March 4 in executive session. Five days later the question of admitting Senators from Virginia came again before the Senate on presentation by Mr. Doolittle of the credentials of Hon. John C. Underwood as Senator-elect from that State for six years from the 4th of March. His credentials were read and after some discussion it was agreed to postpone their consideration as well as those of Mr. Segar until the following session. Henderson and Doolittle spoke in favor of the early recognition by Congress of the local governments in those States which had been brought partly under Federal power. The account of Virginian affairs will be resumed in the final chapter.

-----

Footnote 154:

McPherson’s Pol. Hist., p. 7.

Footnote 155:

McPherson’s Pol. Hist., p. 7n.

Footnote 156:

Eighth Census, pp. 516–522.

Footnote 157:

Density maps in Tenth Census (Population), pp. xii-xiii, xiv-xv,
xvi-xvii.

Footnote 158:

Blair in Appendix to Globe, pp. 327–331, 2 Sess. 37th Cong.; Eighth
Census, pp. 516–522; Seventh Census, pp. 242–261.

Footnote 159:

Parker, The Formation of West Virginia, p. 125.

Footnote 160:

Globe, 2 Sess. 37th Cong., p. 3038.

Footnote 161:

Ann. Cycl., 1861, pp. 743–744.

Footnote 162:

The Formation of West Virginia, p. 36.

Footnote 163:

The Formation of West Virginia, p. 42.

Footnote 164:

Ann. Cycl., 1861, pp. 742–743.

Footnote 165:

The Formation of West Virginia, p. 43.

Footnote 166:

Ibid.

Footnote 167:

Ann. Cycl., 1861, p. 743; The Formation of West Virginia, p. 45, gives
the oath in a form slightly different.

Footnote 168:

Ann. Cycl., 1861, p. 743.

Footnote 169:

Ann. Cycl., 1862, p. 801.

Footnote 170:

Mr. A. W. Campbell in The Wheeling Daily Intelligencer, April 14,
1897.

Footnote 171:

Globe, 1 Sess. 37th Cong., pp. 103–109.

Footnote 172:

The Formation of West Virginia, pp. 47–48.

Footnote 173:

The Formation of West Virginia, pp. 48–50; also Ann. Cycl., 1861, p.
745.

Footnote 174:

The Formation of West Virginia, p. 57.

Footnote 175:

The Formation of West Virginia, p. 79.

Footnote 176:

Ibid., p. 93.

Footnote 177:

The Formation of West Virginia, p. 96, says 16,981 for and 441 against
the constitution. The Annual Cyclopædia for 1862, p. 801, gives the
vote as 18,862 in favor of, and 514 against, the constitution. Poore’s
Charters and Constitutions, Vol. II. p. 1977, is the authority for the
statement in the text.

Footnote 178:

Globe, Part III., 2 Sess. 37th Cong., p. 864; Part IV., pp. 2941–2942,
3034–3039, 3134–3135, 3307–3320.

Footnote 179:

Globe, 2 Sess. 37th Cong., p. 2933.

Footnote 180:

Ibid., p. 3397.

Footnote 181:

Globe, Part I., 3 Sess. 37th Cong., pp. 37–38.

Footnote 182:

Globe, Part I., 3 Sess. 37th Cong., pp. 38–39, 41–42.

Footnote 183:

Globe, Part I., 3 Sess. 37th Cong., pp. 43–45.

Footnote 184:

Ibid., p. 46.

Footnote 185:

Ibid., pp. 46–47.

Footnote 186:

Globe, Part I., 3 Sess. 37th Cong., p. 48.

Footnote 187:

Globe, Part I., 3 Sess. 37th Cong., pp. 50–51.

Footnote 188:

Ibid., p. 35.

Footnote 189:

Globe, Part I., 3 Sess. 37th Cong., pp. 54–55.

Footnote 190:

Ibid., p. 59.

Footnote 191:

Letters and State Papers of Lincoln, Vol. II. p. 283.

Footnote 192:

Quoted in N. & H., Vol. VI. pp. 300–301.

Footnote 193:

Quoted in N. & H., Vol. VI. pp. 302–303.

Footnote 194:

Ibid., p. 304.

Footnote 195:

Quoted in N. & H., Vol. VI. pp. 304–306.

Footnote 196:

See pp. 105–106 _ante_.

Footnote 197:

Letters and State Papers of Lincoln, Vol. II. pp. 285–287.

Footnote 198:

The Formation of West Virginia, p. 152.

Footnote 199:

Ibid., pp. 192–193.

Footnote 200:

Letters and State Papers of Lincoln, Vol. II. p. 326.

Footnote 201:

Webster’s Works, Vol. II. pp. 607–608.

Footnote 202:

By a joint resolution, approved March 10, 1866, Congress agreed that
both counties formed a part of West Virginia. The parent State,
however, by an act of December 5, 1865, had already repealed both the
statutes of January 31 and February 4, 1863, as well as section two of
the act of May 13, 1862; and on December 11, 1866, a bill in equity
was filed in the Supreme Court of the United States in which it was
contended that it was not the intention of that State to consent to
the annexation of Berkeley and Jefferson counties except upon the
performance of certain conditions; the state of the county on election
day was such as not to permit the opening of all the polls in Berkeley
and Jefferson, nor indeed at any considerable part of the usual
election places. The voters did not have adequate notice. In short, a
great majority of them were then and now, December, 1866, opposed to
annexation. Other irregularities are alleged in the complaint of
Virginia. A decision, however, has been rendered by the Supreme Court
of the United States in favor of the new Commonwealth. [See Virginia
vs. West Virginia, 11 Wall., p. 39; also Transcripts of Records,
Supreme Court U. S., Vol. 152, December Term, 1870.]

Footnote 203:

Notwithstanding the new State had been organized by a law which passed
both Houses of Congress, and was approved by the President, Mr. Davis,
of Kentucky, when the members-elect presented themselves before the
Senate, opposed their admission on the ground that there was legally
and constitutionally no such State in existence as West Virginia. On
his motion to administer the customary oath thirty-six Senators voted
in the affirmative, five in the negative. [Globe, 1 Sess. 38th Cong.,
pp. 1–3.]

Footnote 204:

A History of Presidential Elections, Stanwood, pp. 246–247. Edition of
1884.

Footnote 205:

Ann. Cycl., 1864, p. 809.

Footnote 206:

Butler’s Book, p. 618.

Footnote 207:

N. & H., Abraham Lincoln, A History, Vol. IX. pp. 439–442.

Footnote 208:

Letters and State Papers of Lincoln, Vol. II. pp. 619–621.

Footnote 209:

Ibid., p. 623.

Footnote 210:

Why The Solid South? p. 222.

Footnote 211:

Ann. Cycl., 1864, p. 810.

Footnote 212:

Globe, Part II., 2 Sess. 38th Cong., pp. 845–849.

V
ANTI-SLAVERY LEGISLATION

The efforts of Union minorities in Tennessee, in Louisiana and in Arkansas to establish governments in harmony with the Constitution and laws of the United States, and the agency of President Lincoln in effecting that result, have been somewhat particularly described in the preceding pages. The principal events which marked the progress of secession in those States, the military successes which brought Federal authorities to consider the restoration of loyal governments within their borders, and the operation of those causes which ultimately overthrew rebellion have been more rapidly sketched. To trace the successive steps which led to the emancipation of slaves in the seceding States a somewhat more ample narrative will be required. This subject is not only of intrinsic interest but its culmination in the proclamation of September 22, 1862, marks the introduction into the President’s plan of restoration of an element hitherto left out of account.

In December, 1859, when John Brown, for his rash though courageous attempt to liberate slaves, was hanged by the authorities of Virginia a great majority of even Northern people looked on with indifference or with approval. The inhabitants of the free States, however, were rather law-abiding than pitiless and came in time to revere the memory of that stern old Puritan. Ideas in those times matured with amazing rapidity, and fourteen months had scarcely elapsed when James B. McKean, a Representative from New York, introduced into Congress, three days before the Confederate government was organized, the following resolution:

Whereas the “Gulf States” have assumed to secede from the Union, and
it is deemed important to prevent the “border slave States” from
following their example; and whereas it is believed that those who
are inflexibly opposed to any measure of compromise or concession
that involves, or may involve, a sacrifice of principle or the
extension of slavery, would nevertheless cheerfully concur in any
lawful measure for the emancipation of slaves: Therefore,

_Resolved_, That the select committee of five be instructed to
inquire whether, by the consent of the people, or of the State
governments, or by compensating the slaveholders, it be practicable
for the General Government to procure the emancipation of the slaves
in some, or all, of the “border States”; and if so, to report a bill
for that purpose.[213]

Mr. Burnett, of Kentucky, desiring to discuss the proposition, it was laid on the table and received no further consideration. Whether Mr. Lincoln had much reflected upon the principle of this resolution or the reasoning in its preamble, he had not become on March 4 a convert to its essential idea, for in his inaugural address he was content, in expressing his sentiments on the institution of slavery, to re-affirm a declaration which he had formerly made. “I have no purpose,” said he, “directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”[214] Even if the occasion had not demanded the language of conciliation we might easily credit this solemn assurance. Indeed, for an entire year after this announcement he refrained in his public utterances from taking any attitude hostile to the continuance of slavery. The influences which forced him to adopt other opinions may be briefly related.

On May 22, 1861, General Butler arrived at Fortress Monroe and at once took command of the Department of Virginia; next day he sent a reconnoitering party to Hampton, and in the terror and confusion occasioned by the presence of Yankee soldiers three slaves of Colonel Mallory, a Confederate officer, effected their escape; during the afternoon they remained in concealment and at night reached the Union pickets. The following morning they were brought before the Federal commander, whom they informed of their master’s purpose to employ them in military operations in North Carolina. On the next day Major John B. Cary, also of the Confederate army, and a former delegate with Butler in the Baltimore Convention, came to the fort with a flag of truce, and as a representative of Colonel Mallory demanded the surrender of these runaways pursuant to the provisions of the Federal Constitution under which the Union commander claimed to act. With characteristic readiness came the reply that the Fugitive Slave Law could not be invoked in this case; Virginia assumed to be a foreign State and she must count it among the disadvantages of her position if, so far at least, she was taken at her word. These negroes further informed General Butler or his officers that if they were not returned others would come next day. On the 26th eight slaves were before him awaiting an audience; one squad of forty-seven came early on the 27th and another lot of a dozen arrived during the same day. Then they came by twenties, thirties and forties both to Fortress Monroe and Newport News.[215]

Thus arose an important question on which the Government had yet developed no policy. As the acts for the rendition of fugitive slaves were not repealed till June, 1864, the views of individual commanders temporarily prevailed. Without precedent or instructions General McDowell by an order entirely excluded them from his lines. Caprice, too, entered into a settlement of the problem, and even a whimsical solution was sometimes attempted. A felicitous invention for determining these controversies between master and bondman is ascribed to the colonel of a Massachusetts regiment. Both the claimant and the claimed were put outside his tent for a trial of speed; the negro, proving the fleeter, was never heard of again.[216] An institution which had practically determined both the foreign and domestic policy of the United States for an entire generation was suddenly become the sport of a subordinate officer of volunteers! The wise should have heeded these signs.

While the Federal commander in Virginia was exchanging arguments with Confederate officers, General McClellan at his headquarters in Cincinnati was considering a proclamation which on May 26 he issued to the Union men of western Virginia. This document, among other things, says: “All your rights shall be religiously respected, notwithstanding all that has been said by the traitors to induce you to believe our advent among you will be signalized by an interference with your slaves. Understand one thing clearly: not only will we abstain from all such interference, but we will, on the contrary, _with an iron hand crush any attempt at insurrection on their part_.”[217]

Scarcely less explicit in its announcement concerning slavery was General Patterson’s proclamation of June 3, 1861, to troops of the Department of Pennsylvania. “You must bear in mind,” says its concluding paragraph, that “you are going for the good of the whole country, and that, while it is your duty to punish sedition, you must protect the loyal, _and, should the occasion offer, at once suppress servile insurrection_.”[218]

Butler’s interview with Major Cary had been promptly communicated to the War Department, whose chief, Mr. Cameron, expressed in his reply of May 30 approval of the General’s action. The Secretary, however, endeavored to distinguish between interference with slave property and the surrender of negroes that came voluntarily within Federal lines. The commander was further directed to “employ such persons in the services to which they may be best adapted, keeping an account of the labor by them performed, of the value of it, and the expenses of their maintenance,”[219] the question of their final disposition to be reserved for future determination.

In defence of his attitude toward masters of fugitives who had been employed in the batteries or on the fortifications of the enemy, international law supplied General Butler with an analogy that he skillfully applied to the novel conditions which had arisen. Articles of assistance in military operations cannot in time of war be imported by neutrals into an enemy’s country, and the attempt to introduce such goods renders them liable to seizure as lawful prize. It did not greatly embarrass this versatile lawyer that the term _contraband_ applies exclusively to relations between a belligerent and a neutral, or that the decision of a prize court might be necessary to determine whether a particular article had been so designated. No doubt he believed firmly in the doctrine that the wants of war are contraband of war. In his correspondence with General Scott he had observed that “as a military question, it would seem to be a measure of necessity” to deprive disloyal masters of the services of their slaves, and this, on the pretext that they were contraband of war, he proceeded to do by refusing to surrender any negroes coming inside his lines.[220] This method of settling the difficulty was what Secretary Cameron had approved. But this phase presented the question in its extreme simplicity. A refusal to return the slaves of Confederate officers or of Confederate sympathizers was one thing; similar treatment of loyal slaveholders would not be so readily overlooked by authority. Though such cases were more likely to occur in Maryland, Kentucky or Missouri, that fact did not prevent the subject from assuming very great importance even in Virginia. Whole families escaped from their masters, and General Butler soon had on his hands negroes from three months to almost fourscore years of age.

Attorney-General Bates, writing July 23, 1861, to United States Marshal J. L. McDowell, of Kansas, who had asked whether he should give his official service in executing the fugitive slave law, said in response to the inquiry:

It is the President’s constitutional duty to “take care that the
laws be faithfully executed.” That means all the laws. He has no
right to discriminate, no right to execute the laws he likes, and
leave unexecuted those he dislikes. And of course you and I, his
subordinates, can have no wider latitude of discretion than he has.
Missouri is a State in the Union. The insurrectionary disorders in
Missouri are but individual crimes, and do not change the legal
status of the State, nor change its rights and obligations as a
member of the Union.

A refusal by a ministerial officer to execute any law which properly
belongs to his office, is an official misdemeanor, of which I have
no doubt the President would take notice.[221]

The Attorney-General in this instance merely amplified a suggestion contained in the inaugural.