Loe raamatut: «The Journal of Negro History, Volume 6, 1921», lehekülg 12
Slavery and the Admission of West Virginia
Waitman T. Willey, a member of the Senate from Virginia, having obtained the permission of that body to do so, presented on May 29th a certified original of the constitution together with a copy of an Act of the General Assembly of Virginia, of May 13, 1862, under the Restored Government, giving its permission for the formation of a new State within the commonwealth of Virginia. He presented at the same time the memorial of the General Assembly requesting Congress to admit the State of West Virginia into the Union. Following the receipt of these documents they were referred to the Committee on Territories, of which B. F. Wade, of Ohio, was the Chairman.210
On the twenty-third of June Senate Bill No. 365 providing for "the admission of the State of West Virginia into the Union" was reported, read and passed to a second reading.211 On the twenty-sixth day of June, on motion of Mr. Wade, the bill was taken up for immediate consideration in a committee of the whole. The bill proposed to admit West Virginia into the Union on equal footing with the original States in all respects whatever, subject, among other conditions, to the following: "That the convention thereinafter provided for shall in the constitution to be framed by it, make provision that from and after the fourth day of July, 1863, the children of all slaves born within the limits of the said State shall be free."212
Following the action noted, Mr. Sumner, Senator from Massachusetts, quoted that provision of the bill relating to the emancipation of slaves and raised the following objections, namely: (1) that by the passage of the bill a new slave State would be admitted into the Union and (2) that the existing generation of slaves would remain such throughout the course of their lives. He was unalterably opposed to the measure so long as it contained these features; and he, therefore, sought to remove them by means of the same policy that Jefferson applied to the territories of the Northwest. Accordingly, he offered an amendment to the effect "that the convention hereinafter provided for, in the Constitution to be framed by it, make provision that from and after the fourth day of July, 1863, within the limits of said State, there shall be neither slavery nor involuntary servitude otherwise than in the punishment of crime, whereof the party shall be duly convicted."213 A vote on the amendment was requested and ordered but not then taken.
Dissatisfied with the purport of the proposed amendment, Senator Willey expressed his intention to amend the same; whereupon the presiding officer of the Senate proposed that he offer an amendment to the bill rather than to the proposed amendment of Senator Sumner. In the meanwhile, Mr. Hale, of New Hampshire, a member of the committee that framed the bill, affirmed his intention to sustain it. His remarks were suspended by order of the chair for the purpose of considering another matter which had priority to the one then being discussed.
On the motion of Senator Willey the bill was again considered on the first day of July, the question pending being the amendment of Mr. Sumner.214 In support thereof, Mr. Sumner asserted that from statistics of Mr. Willey it appeared that twelve thousand bondsmen in Western Virginia were doomed to continue as such for the remainder of their lives, and that consequently the Senate must, for a generation, be afflicted with two additional slave-holding members. He quoted from Webster's speech of December 22, 1845, on the admission of Texas into the Union and rested his case on its arguments. Briefly stated, Mr. Webster opposed the admission of other States into the Union as slave States, and at the same time granting to them the inequalities arising from the mode of apportioning representation to Congress, as granted by the Constitution to the original slave-holding States. He held that the free States have the right to demand the abolition of slavery by a commonwealth seeking admission with a slave-holding constitution.215
During the continuation of the debate, Mr. Hale asserted that Mr. Webster abandoned the position just attributed to him when in 1850 he voted against any restrictions upon any territory coming into the Union with a slave-holding constitution and when he voted exclusively against applying the "Wilmot Proviso" to these States. Mr. Hale added tersely that since Congress had consistently admitted States with slave-holding constitutions providing for perpetual slavery, it would be the merest folly to refuse to admit the first State whose constitution provided for gradual emancipation.216
A new issue was injected into the debate when Mr. Collamer, of Vermont, while reviewing what is implied in being a sovereign State and a State in the Union, argued that the imposition by Congress of any condition precedent to the entrance, whether or not that condition be the abolition of slavery, is an unwarranted interference with the internal affairs of that State. Under such circumstances the proposed new State would not come into the Union on equal footing with other States. He did not wish, however, to be understood as saying that he would not vote against a State desiring to come in as a perpetual slave-holding State; but he failed to see the wisdom or justice in making the abolition of slavery a condition precedent to entrance. On the other hand, he saw no difference, in principle, between the provision in the bill as reported and the amendment offered by Mr. Sumner, since both of them failed to reflect the will of the Convention that framed the State's constitution.217
Thereupon Mr. Willey announced that he would offer the following amendment: "That after the fourth day of July, 1863, the children born of slave mothers within the limits of the said State shall be free, and that no law shall be passed by the said State by which any citizen of either of the States of this Union shall be excluded from the enjoyment of the privileges and immunities to which such citizen is entitled under the Constitution of the United States; provided that the convention that ordained the constitution aforesaid, to be reconvened in the manner prescribed in the schedule thereto annexed, shall by a solemn public ordinance declare the assent of the said State to the said fundamental condition, and shall transmit to the President of the United States on or before the 15th of November, 1862, an authentic copy of the said ordinance; upon receipt whereof the President by proclamation shall announce the fact; whereupon and without any further procedure on the part of Congress the admission of the said State into the Union shall be considered as complete."218
Throughout the debate that followed there were found many supporters of the program of gradual emancipation for the proposed new State. Chairman Wade, of the Committee of Territories, made thereupon the following important remarks: (1) that the proposed new State had voluntarily fixed the marks of extermination of the institution of slavery; (2) that the principal men of the commonwealth had told him that the first legislature to convene would do away with the whole institution, as fast as the nature of the case would permit; (3) that he believed the efforts of West Virginia were constitutional; (4) that it was just and expedient to admit her; (5) that he did not favor the inclusion in the commonwealth of the pro-slavery counties of the Valley; (6) that he did not want a provision saying that a person born one day should be a slave forever, and that one born the next day should be free; and finally (7) that he would like to see an amendment, providing that "all children who, at the time this constitution takes effect, are fifteen or sixteen years of age, shall be free upon arriving at the age of twenty-one or thirty-five years," i.e., a provision for gradual emancipation that will enable some of those born before as well as all of those born July fourth, 1863, to obtain their freedom.219
Mr. Fessenden, of Maine, prefacing his remarks with the statement that he had not examined the question, proceeded to make the following observations: (1) that he wished to be assured that the State could be admitted constitutionally; (2) that considering the position of the State, the feeling of the people about the matter, the small number of slaves there at the present time, he believed it not only the duty, but the entire right of the body (Congress) to prescribe before the State comes in that she shall put herself in a proper and irreversible position on the subject of the gradual abolition of slavery; (3) that when a definite and fixed date is given for the termination of slavery, the State becomes in point of fact a free State; (4) that he was glad to know (according to Mr. Wade) that the people of West Virginia concurred in opinion with the principles sponsored by himself; and (5) that the interests of the State itself and those of all of the States in the Union demanded an irreversible agreement on the whole matter.220 Further consideration of the bill was then postponed.
Shortly after an unsuccessful attempt on the part of Mr. Willey to have the consideration of the bill continue,221 it was brought up again on the fourteenth of July by Senator Wade. The pending question was the amendment of Mr. Sumner. The vote was taken and the amendment was rejected.222 Mr. Willey then offered the amendment already herein noted. He was followed by Mr. Wade, who, expecting the State to be admitted, if at all, under the amendment of Mr. Willey, moved to amend the amendment by inserting at the proper place the words: "And that all slaves within the State who shall at the aforesaid time be under twenty-one years, shall be free when they arrive at the age of twenty-one years."223 Despite the anti-slavery principle here involved, Mr. Wade was convinced that some provision was necessary to facilitate the running of the bill in the Senate and in the House. He thought, too, that the harshness and abruptness of the bill would be thereby smoothed down, softened and rendered harmonious.224
It was no easy task, however, that the Senator from Ohio had essayed to accomplish. His proposal brought from Mr. Willey the personal conviction of the man. Mr. Willey preferred that the State be admitted under the constitution precisely as submitted by the people. That not being possible, he wished that his amendment (which was not to his personal tastes) be carried. He deplored the situation that would follow should the amendment of Mr. Wade be passed. He pointed out: (1) that the majority of slaves were in counties contiguous to what would be the borders of the old State of Virginia; (2) that many of them ranged in age from one to twenty-one years; (3) that when they should arrive at a convenient age for sale, they would be silently transferred across the border into Kentucky or Virginia or the further South, if needs be, and there sold into the cotton fields of the South or the tobacco plantations of the East, where slavery was admittedly at its worst; (4) that many of the slaves were females, the offspring of whom would be free, were the mothers allowed to remain in the State, but upon the passage of the amendment even those would be doomed to the perpetual slavery of the far South. Replying to an inquiry made by Mr. Lane, of Kansas, as to whether or not public sentiment would condone such action, he asked if public sentiment would be likely to influence those slave owners who lived in territory contiguous to Virginia. The loyalty and fidelity of West Virginia should, in Mr. Willey's opinion, guarantee the safe manner in which the commonwealth would handle the question. Never before in similar situations, he argued, had slaves in esse been freed; freedom extended only to those unborn at the passage of the constitution or to those born on or after a date therein designated.225
Again joining issue with Senator Willey, Mr. Lane pointed out that the same situation arose in Kansas when in February, 1856, the people adopted a constitution providing for the emancipation of the slaves on the fourth of the following July. The slaves, however, handled the situation. They told their masters that since they should become free after the date designated, they would not permit themselves to be taken out of the State prior to that date.226 Mr. Lane did not doubt the capacity to do likewise on the part of the slaves then being considered.
An interesting spectacle presented itself when the two Senators from Virginia engaged in spirited debate. Mr. Carlile desired that the State be admitted under the terms of the constitution framed at Wheeling, the alternative being that the people of the State should have the new terms submitted to them for approval. He believed that Mr. Willey's amendment was incomplete as it stood, and that an amendment in conformity with the one presented by Mr. Wade was necessary, providing, of course, that it was the sense of the Senate to admit the State only upon conditions. He took issue with Mr. Willey's assertion that the passage of Mr. Wade's amendment would be followed by a wholesale delivery of slaves to purchasers further South.227 In the meanwhile Mr. Wade's amendment was agreed to.
Mr. Carlile now began overtly his campaign of obstruction and opposition to the admission of the State into the Union. He offered as an amendment to that of his colleague to be inserted at the end of the sixteenth line, the following words: "After the said ordinance shall be submitted to the vote of the people in the said State of West Virginia and be ratified by the vote of the majority of the people thereof." The sinister motive underlying his proposal was clearly perceived and ably met by Mr. Willey. He opposed the measure: first, because of the unusual requirement of the majority vote of the people, and, second, because of the new convention that would be required to assent to the fundamental proposition, and the consequent new election and additional costs to the people. The constitutional convention, he argued, was still in existence, was still a legal body, and that, therefore, there was no sufficient reason for the reference of the matter beyond the jurisdiction thereof.228
Dissatisfied but not discouraged, Mr. Carlile explained away the objection to the words "majority of the people." He maintained, however, that the changes contemplated would affect the fundamental law and that they should, therefore, be ratified by the people subsequent to being assented to by the Convention. It was, he argued, a departure from and in derogation of the customs and ideas of Virginia to change the organic law without first submitting the proposed new law to the people. Setting forth more clearly his position on the whole matter Carlile said: "Supposing—as I suppose, I will see when I move this test amendment, which I shall, to this proposition—that the Senate is unwilling to admit us without conditions, I shall vote against any bill, if it is pressed, exacting conditions, for the purpose of going home to my people asking them to assemble a Convention between this and the first Monday in December, and act upon the suggestion which we have received here from the Senate, if they desire to do so and come here with a constitution that will enable Congress, without such arbitrary stretch of power to admit us at once without delay."229
It was evident that Carlile was committed to a proslavery program and that his plan, if adopted, would result in the indefinite postponement of the admission of the new State. His colleague, therefore, with an apparently sincere effort to meet the wishes of the Senate and to satisfy the objections of Mr. Carlile, read the bill which was presented in the House by Mr. Brown, of Virginia. At the same time he announced that that bill, if agreeable to the Committee and to his colleagues, would be acceptable to him as a compromise.230 This assented to, Mr. Willey withdrew his original amendment and offered the Brown bill as a substitute for the whole bill, striking out all after the word "whereas" in the preamble and substituting this measure in lieu of the Committee's bill.231 The bill as finally presented follows:
"Section 1. 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 until the next general census shall be entitled to three members in the House of Representatives of the United States: Provided always that this act shall not take effect until after the proclamation of the President of the United States hereinafter provided for.
"Section 2. It being represented to Congress that since the Convention of the 26th of November, 1861, that framed and proposed the 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 the said Constitution by striking out the same and inserting the following in its place, namely, 'The children of slaves born within the limits of this State after the fourth day of July, 1863, shall be free, and no slave shall be permitted to come into the State for permanent residence therein.' Therefore be it enacted, that whenever the people of West Virginia shall, through their said convention, and by a vote to be taken at an election to be held within the limits of the State at such time as the Convention may provide, make and ratify the change aforesaid and properly certify the same under the hand of the President of the Convention, it shall be lawful for the President of the United States to issue the 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."232
It will be observed that the terms of the amendment made no provision for the subsequent freedom of those slaves in esse. It was the sense of the committee of the whole, expressed in its action on Mr. Wade's amendment, that a specified class of slaves in esse should be given their freedom upon their arrival at a designated age. In conformity with this view, Mr. Lane, of Kansas moved to amend the second section by inserting after the word free the following: "And that all slaves within the State who shall at the time aforesaid be under ten years of age shall become free when they arrive at the age of twenty-one years, and all slaves over ten years and under twenty-one years of age, shall become free when they arrive at the age of twenty-five years."233 This amendment was accepted.
After the passage of the above amendment, Mr. Carlile, persistent in his policy of opposing admission, proposed to amend Mr. Willey's last proposition. His amendment was to the effect that the proposed new State be admitted without conditions. In speaking thereupon, Mr. Willey affirmed that this amendment conformed to his personal views, but that as a matter of good faith and honor he was precluded from espousing its cause.234 The amendment was rejected.
Following the report of the bill to the Senate and the concurrence of the latter in the compromise amendment of Mr. Willey as amended by Mr. Lane, Mr. Sumner advised that he had proposed to offer to the Senate his amendment lately rejected in Committee. Referring to this proposal, Mr. Lane asserted his assurance that the insertion of the provision in question would cause the bill to fail before the House of Representatives and to merit the disapproval of the people of West Virginia. He urged, therefore, that it would be the better policy to vote for the bill as already amended and to endure slavery in the State for another generation, if need be. Despite the conformity of this view with those of a majority of his colleagues, Mr. Sumner, though declining to offer the amendment, stated his irrevocable opposition to the admission of another slave State, even though the term of slavery be for but twenty-one years. He considered it his duty, therefore, to vote against the measure as it then stood.235
The engrossment of the bill for a third reading found its opponents still unweary in their efforts to obstruct or defeat its passage. Senator Trumbull, of Illinois, summed up his opposition to the bill in two objections, namely: (1) since all persons over twenty-one years of age were thereby doomed to perpetual slavery, the new State would be in theory and in practice a slave State; and (2) he failed to see the necessity for or wisdom in dividing any of the old States until the situation could be seen as a whole. He let it be known, however, that this statement should not be construed to commit him to the position of opposing the admission of a slave State under all circumstances whatever. In conformity with his conviction, he moved that all consideration of the bill be postponed until the first Monday of December next. The Senator from Illinois was ably supported by Mr. Carlile, who, failing in his last attempt to amend the bill to the effect that the State should come in without conditions, affirmed his opposition to any proceedings whereby the organic law of a State is framed by Congress and asserted that he would support the Trumbull motion at the risk of misconstruction.236
Those Senators who favored the immediate passage of the bill were not unprepared for the most determined attacks of its opponents. Mr. Howard, of Michigan, requested of the Senators from Virginia, whether the Wheeling Legislature had taken any action on the "Joint Resolution passed by Congress suggesting that the so-called border slave States take some action in reference to the final emancipation of their slaves." Replying thereto, Mr. Willey asserted that the Legislature was entirely favorable to a program involving final emancipation. He took occasion, moreover, to add that "his colleague, Mr. Carlile, was misrepresenting the attitude of the legislature that sent him there in interposing the objection that was calculated to thwart the whole movement."237
Agreeing with the remarks of Mr. Willey, Mr. Wade, while opposing the motion of Senator Trumbull, explained that Mr. Carlile had penned all the bills and drawn them up; that he was the hardest worker and the most cheerful of them all, that he was the most forceful among them in pressing his views upon the Committee. "Whence," asked he, "came this change of heart? For indeed his conversion was greater than that of St. Paul." "Now," said Mr. Wade, "is the time for West Virginia to be admitted into the Union." "Let us not postpone the action for the next session, but let us reject the motion of the gentleman from Illinois and pass the bill."238
Continuing the debate, Mr. Ten Eyck affirmed the legality and the expediency of admitting the new State. His arguments were substantially as follows: (1) that the legal question, that is, the right of the legislature to give assent to the division of the State, was settled when the Senate accepted as members the two men appointed by the said legislature; (2) as a matter of policy he urged that the people of Western Virginia should not be forced to run the risk of having the whole State, because of the collapse of the rebellion, repeal the act of the legislature and thereby continue a domination of tyranny over them. The vote was taken and the motion to postpone was rejected.239
The final objection prior to the passage of the bill, came from Mr. Powell, of Kentucky. Asserting, in substance, that since ten of the forty-eight counties to be included in West Virginia were unrepresented in the Convention and in the Legislature, and since less than one-fourth of the people gave their consent to the formation of a new State, he held that there was no constitutional right to act. He was, therefore, unalterably opposed to the admission of the new State. Unswerved from his position, by the assurances of Mr. Willey, that (1) the absence of ten thousand men under arms, and (2) the foregone conclusion that separation would be effected jointly accounted for the small number of nearly nineteen thousand votes, Mr. Powell called for the yeas and nays. The motion was put and the bill to admit was passed.240
Even the passage of the bill did not cause Mr. Carlile's opposition to cease. Determined in his efforts to make a final plea for the slave-holding interests, he introduced Senate Bill No. 531241 supplemental to the act for the admission of West Virginia into the Union and for other purposes. This bill sought, of course, to make effective his plan that the whole work of the Constitutional Convention be reenacted. The bill was reported with amendments and adversely from the Judiciary Committee, whereupon Mr. Carlile sought to have it considered in the Senate. This effort, like his previous ones, was wholly unsuccessful.242
While this battle was in progress in the Senate the House also was considering the question. The debate in the Senate on the admission of the proposed new State of West Virginia into the Union hinged largely upon the consideration of the question of slavery. Was the new State to be admitted as a slave State, providing for gradual emancipation? Was it to be admitted on a program of immediate emancipation, or was it to come in with no conditions relating to the disposition of this all-absorbing matter? These were the questions to be determined. They were not altogether the chief considerations in the House.
On the twenty-fifth day of June, 1862, Mr. Brown, of Virginia, by unanimous consent, introduced before the House a bill for the "Admission of West Virginia into the Union and for other purposes." After the first and second readings it was referred to the Committee on Territories.243 On the sixteenth of July the bill as passed by the Senate was read a first and second time. Mr. Bingham demanded previous question on the passage of the bill; whereupon Mr. Segar, representing a district in Eastern Virginia, objected to a third reading and moved that the bill be laid on the table. On a call for the vote the motion was defeated. On the motion of Roscoe Conkling the consideration of the bill was postponed until the second Tuesday in December, 1862.244
The bill came up again for consideration in the House at the time designated, December 9, 1862. Mr. Conway, of Kansas, obtaining the floor through the courtesy of Mr. Bingham, remarked that he had no objection to the erection of a new State in Western Virginia; that he understood that the inhabitants were thoroughly loyal; that they were opposed to slavery; and that they would make a powerful and prosperous State. Despite these considerations, he was not prepared to adhere to the program of admission. He objected, therefore, that the application had not come up in the proper constitutional form. The commonwealth was not organized into a territorial form of government, and so, said he, no enabling act could be passed. The constitutional provision that no State may be divided without the assent of the legislature thereof was not, in his opinion, adhered to. He questioned the legitimacy of the so-called "Restored Government of Virginia" after a part of the State had seceded from the Union.245 It was his contention that the failure of the State government caused the sovereignty of the State to accrue to the Federal Government. Any application for admission into the Union, on the part of West Virginia, should proceed on this theory.246
Replying to these arguments, Mr. Brown, of Virginia, claimed constitutional regularity of procedure in forming the new State and in seeking to have it admitted into the Union. He referred to the case of Kentucky as a precedent, attempting thereby to show the competency of Congress to admit a State formed within the jurisdiction of another. He pointed out that the Senate, the House, the Executive Department of the United States Government and a State Court in Ohio had, all, by their several acts and relationships with the Wheeling Legislature recognized it to be the legal legislature of Virginia. Discussing the original powers of the people, Mr. Brown asserted "that the principle was laid down in the Declaration of Independence that the legislative powers of the people cannot be annihilated; that when the functionaries to whom they are entrusted become incapable of exercising them, they revert to the people, who have the right to exercise them in their primitive and original capacity." "When, therefore, the government of old Virginia capitulated to the Confederacy," said he, "the loyal people of Western Virginia acted in accordance with the directing principle of the Declaration of Independence."247
Conforming to the opinion of Mr. Brown, Mr. Colfax urged the admission of the proposed new State, "because in their constitution, the people provided for the ultimate extinction of slavery."248 Among other speakers urging the admission of the new State were Edwards, Blair, Stevens, and Bingham. Edwards asserted that the two questions presented had to do with (1) the constitutional power of Congress to admit the State and (2) the question of expediency. Blair, while urging the admission of the new State, took occasion to inform Mr. Crittenden, of Kentucky, that the people of the proposed new State of West Virginia had bound themselves to pay a just proportion of the public debt owed by the State of Virginia, prior to the passage of the Ordinance of Secession. Thaddeus Stevens held that the act of the legislature of Virginia assenting to the division of the State was invalid as such, but that West Virginia might be admitted under the absolute power that the laws of war give to Congress under such circumstances. "The Union," he said, "can never be restored under the Constitution as it was," and with his consent, it could never be restored with slavery to be protected by it. He was in favor of admitting West Virginia because he "found in her constitution a provision which would make her a free state."249
