Normally I prefer to write about the military aspects of the war. But it is the 150th birthday of the State of West Virginia and, after reading some comments on how West Virginia came to be, there is one aspect that seems to me generally overlooked.
After the bombardment of Fort Sumter by the confederates, President Lincoln called Congress into session starting on July 4, 1861. Many representatives and senators from southern states did not show up due to what was going on in those states. A notable exception was Senator Andrew Johnson of Tennessee who achieved national fame for his pro-US speeches and the dangerous journey he had to take to make it to Washington from Tennessee. In the Senate on July 13 Johnson presented the credentials of John Carlile and Waitman Willey declaring that they had been appointed to fill Virginia’s Senate seats, made vacant when the Senate expelled the former Senators, James Mason and Robert Hunter, who sided with the Confederacy. The Senate briefly debated the issue, but when it was put to a vote they accepted Carlile and Willey into the Senate. This decision made the creation of West Virginia possible.
Prior to the 17th amendment, adopted in the early 20th Century, Senators from each State were “chosen by the Legislature thereof”. So how had Carlile and Willey been chosen?
After the convention in Richmond voted for secession, loyalists to the US called for there to be an opposing convention. This convention gathered in Wheeling in June and issued “A Declaration of the People of Virginia” which reasoned that since secession was in their view an illegal act and since the Governor has taken other illegal acts, the state government was in disarray and the governor’s office was essentially vacant. The convention then claimed it needed to act on behalf of the people and appoint an interim governor to restore a legal functioning government. The convention picked Francis Pierpont and one of his first actions was to call for a special session of the state legislature.
The legislature normally met in Richmond, but that obviously wouldn’t work for Pierpont. So he called for those who had won the recent state election and who were still willing to pledge loyalty to the United States to meet in Wheeling. On July 1 eight state senators and 32 house delegates gathered (the legislature normally consisted of 50 senators and 152 delegates). This group in Wheeling acted as the legislature of Virginia loyal to the United States of America while simultaneously another group in Richmond acted as the legislature of Virginia loyal to the Confederate States of America. On July 9th the legislators in Wheeling selected Carlisle and Willey to represent Virginia in the US Senate.
By deciding to seat them, the US Senate were validating their credentials and this cleared the way for the formation of the new state of West Virginia. The Constitution gives Congress the power to admit a new state with the restriction that if the new state was formed from part of an existing state then the legislature of the existing state must agree. So in order to create West Virginia, the legislature of Virginia had to agree. By accepting Carlile and Willey in the Senate, Congress was defining the group of legislators gathered in Wheeling to be the legislature of the State of Virginia. For if Senators were “chosen by the Legislature thereof” (in the words of the Constitution) and Carlile and Willey were Senators, then whoever chose Carlile and Willey must be the legislature. Thus when the legislators assembled in Wheeling voted in early 1862 to approve a new state, Congress had to accept this as constitutionally valid because to do otherwise would call into question the status of Carlile and Willey and all the votes and bills they had taken part in.