be regularly done by the people or Government of the Union, for, by the Federal Constitution, the right of founding and amending Constitutions for the State of Virginia had been delegated to the people of that State, acting by and through their State organization, subject merely to the federal guaranty that such Constitutions should be republican which State organization had ceased to exist. The work of reconstruction, therefore, must be inaugurated irregularly, since a government must be forthwith established. Of the only two modes of effecting this work, at that time practicable, namely, that by a spontaneous movement of the loyal citizens of Virginia, and that by an enabling Act to be passed by the Congress of the United States, both irregular, the former was adopted, as I have said, with the countenance and under the protection of the United States.1 The steps taken to this end were as follows:

§ 179. On the 11th of June, 1861, a Convention of loyal Virginians met at Wheeling upon the call of influential persons in different parts of the State, with a view to reconstruct the State government. Taking their stand upon the Virginia Bill of Rights, framed in 1776, and reaffirmed in 1830 and 1851, they assumed to themselves the powers of government, forfeited by the treason of their rulers, and pronounced the Act of the General Assembly calling the Convention of February, 1861, without the previously expressed consent of the people, to be an act of usurpation. After denouncing the acts of that Convention as abuses of the powers intrusted to it, stigmatizing especially its attempt "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 ordinances treason against the former," they solemnly declared, "in the name and on behalf of the good people of Virginia, that the preservation of their dearest rights and liberties, and their security in person and property, imperatively' demanded "the reorganization of the government of the Commonwealth, and that all acts of said Convention. . . . tending to separate this Commonwealth from the United States, or to levy and carry on war against them," were "without authority and void; and that the offices of all who" adhered to "the said Convention . . . . whether legislative, executive, or judicial,” were "vacated." The Convention then, by an Ordinance, passed 1 See $ 251-253, post.

on the 19th of June, 1861, provided for the appointment of a governor, and other State officers, to continue in office six months, or until their successors were elected and qualified, and for a General Assembly, to consist of the members elected in May preceding, and such as might be elected under the Ordinances of the Convention, and to hold their offices until the end of the terms for which they should be elected. The General Assembly was required to meet on the 1st of July, 1861, and to proceed to organize themselves, as prescribed by existing laws, in the respective branches.

§ 180. Thus far the proceedings of the Convention related to the reconstruction of the State government. Now commenced those having for their object the dismemberment of the State. On the 20th of August, 1861, the Virginia Convention passed an Ordinance, entitled, "An Ordinance to provide for the formation of a new State out of a portion of the territory of this State." The material portions are as follows:

The

"Whereas, it is represented to be the desire of the people inhabiting the counties hereinafter mentioned, to be separated from this commonwealth, and to be erected into a separate State, and admitted into the Union of States; people of Virginia, by their delegates assembled in Convention at Wheeling, do ordain that a new State, to be called the State of Kanawha, be formed and erected out of the territory included within the following limits" (describing the territory in the main afterwards embraced in the State of West Virginia); that "all persons qualified to vote within the boundaries aforesaid, and who shall present themselves at the several places of voting within their respective counties, on the fourth Thursday in October next, shall be allowed to vote on the question of the formation of a new State;" and that the commissioners conducting the election at the several places of voting shall "cause polls to be taken for the election of delegates to a Convention to form a Constitution for the government of the proposed State." The Ordinance further provided (sec. 6) that it should be the duty of the Governor, "on or before the 15th day of November next, to ascertain and by proclamation make known the result of the said vote; and, if a majority of the votes given within the boundaries" prescribed, "shall be in favor of the formation of a new State, he shall so state in his said proc

lamation, and shall call upon the said delegates to meet in the city of Wheeling on the 26th day of November next, and organize themselves into a Convention; and the said Convention shall submit, for ratification or rejection, the Constitution that may be agreed upon by it, to the qualified voters within the proposed State, to be voted upon by the said voters, on the fourth Thursday in December next." By sections 8 and 10 it was required of the Governor to lay before the General Assembly, at its next meeting, "for their consent, according to the Constitution of the United States, the result of said vote," if a majority should appear to have voted in favor of a new State, and of the proposed Constitution; and that, when the General Assembly should have given its consent to the formation of such new State, it should forward to the Congress of the United States such consent, together with an official copy of such Constitution, with the urgent request that the new State might be admitted into the Union.

§ 181. In pursuance of this ordinance, a vote of the people within the territory mentioned was taken on the question of forming a new State and for delegates to a Constitutional Convention, should the vote favor the formation of such State. The election was held on the fourth Thursday in October, 1861, as prescribed in the ordinance, and resulted largely in favor of forming a new State. The delegates elected on the same day, accordingly, on the proclamation of the Governor, convened at Wheeling on the 26th of November, 1861, the day fixed by the ordinance, and during their session framed a Constitution, which was adopted by the people at a general election held on the 3d day of April, 1862.1 A few days thereafter, on the 6th of May, 1862, an extra session of the legislature of the State of Vir ginia, as reconstituted by the Convention, was held at Wheeling. Its first Act, passed on the 13th of May, was entitled "an Act giving the consent of the legislature of Virginia to the forma

1 Such is the date contained in the preamble to the Act of Congress admit ting the State conditionally into the Union. The day required by the ordinance of the Convention for the vote on the Constitution was the fourth Thursday in December, 1861. The address, to their constituents, of the delegates composing the Convention, called in 1863 to consider and pass upon the amendment to the Constitution of the new State, required by Congress to be made before the State should be admitted into the Union, on the other hand, speaks of the ratification of the Constitution as having been made in April, 1862. For a more detailed statement of the facts, see Preface to 1 W. Va. R., 72–78.

tion of a new State within the jurisdiction of this State." It purported to give the consent of the State to the erection of certain counties, named in the Ordinance above referred to, into a new State, to be called West Virginia instead of Kanawha, and that to them might be added four other counties specified in the Act, whenever the voters thereof should ratify and consent to the Constitution, at an election held for that purpose. It also required the Act, together with the Constitution, to be transmitted to the Senators and Representatives of Virginia in Congress, and requested those officers to use their endeavors to obtain the consent of Congress to the admission of the State of West Virginia into the Union.

Here, then, after a sort, were two of the three requisites to the legitimacy of the new State; the consent of the people to be embraced within its jurisdiction and that of the parent State, given first by its Convention and then by its so-called legislature, in apparent conformity to the letter of the Federal Constitution.

§ 182. Copies of the Act of the Virginia legislature and of the proposed Constitution of the new State having been trans. mitted to the Virginia delegation in Congress, a bill was introduced into that body giving its assent to the separation. Objec tions were entertained, however, to one provision of the Constitution, that relating to slavery. The Convention which had framed that instrument had been about equally divided as to the propriety of inserting in the Constitution a clause providing for gradual emancipation. Some desired to avoid the contention the agitation of the subject would inevitably engender, while others thought that without the insertion of such a clause the consent of Congress would not be given to the separation from the parent State. Under these circumstances a compromise clause had been agreed on, which had received the unanimous vote of the Convention and been inserted in the Constitution. It provided simply that no slave should be brought, nor free person of color be permitted to come, into the State for permanent residence. This Constitution, as we have seen, was ratified by the people. This is the clause to which, when the Constitution was considered in Congress, exception was taken, and the result of the action of that body was, that the proposed State was constrained to substitute for the clause in question another, pro

viding for gradual emancipation. On the 31st of December, 1862, an Act was passed by Congress entitled, "An Act for the Admission of West Virginia into the Union, and for other purposes," which, after reciting the proceedings I have before consid. ered, and that both the Convention and the legislature of Virginia had requested that the new State should be admitted into the Union, declared the consent of Congress, that the forty-eight counties named in the Act should be formed into a separate and independent State, and admitted as such into the Union, provided, that said Act should not take effect until after a proclamation of the President of the United States should be issued, stating the fulfilment of the following condition, viz., — the people of the proposed State, by their Convention, were to insert in the Constitution, in lieu of the compromise clause, the following section:

"The children of slaves, born within the limits of the State after the fourth of July, eighteen hundred and sixty-three, shall be free; and all the 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."

This provision was, by the Convention, on the 18th of February, 1863, substituted for the one objected to by Congress, and the Constitution, as thus amended, was thereupon submitted a second time to the people for ratification or rejection. The election for that purpose was held on the 26th of March, 1863, and the result was that it was ratified by a very large majority.

As required by the Act of Congress, this result having been certified, under the hand of the President of the Convention, to the President of the United States, the latter issued his proclamation announcing the fact, and West Virginia, sixty days thereafter, is supposed, according to the terms of the Act, to have become a State in the Union.

§ 183. Whether the erection of West Virginia into a separate State was a constitutional act or not, depends on the question whether the so-called legislature of Virginia, which met at Wheeling on the 6th of May, 1862, and passed the Act purporting to give the consent of Virginia to its own dismemberment,