Virginia east of the Alleghanies and contained a clause for the gradual extinction of slavery, upon the adoption of which as a part of the Constitution the State was to be admitted. The amendment was in these words: "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 all slaves within this 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." The amendment killed Carlile's bill; but he stubbornly opposed the new State to the end. The debates show many conflicting views upon the question of admitting the State, some of which sound strange at this day in the light of subsequent events.*

38. Passage of the Bill, The bill passed the Senate by a vote of 23 to 17. In the meantime, and prior to the submission of the Willey Amendment, William G. Brown of Kingwood had offered a bill in the House for the admission of the State, meeting the objections which had threatened to defeat the measure in the Senate. The Willey Amendment contained the essential features of the bill offered by Mr. Brown, and, when the measure was passed in the Senate, the House bill was dropped. The Senate bill was not called up in the House until the Congress met again in December after the summer adjournment, when it was passed, after much opposition, by a vote of 96 to 55. The President called for the opinion of his Cabinet in writing, touching the constitutionality and expediency of the act. Only six members were present in the city. Seward, Chase, and Stanton approved the bill; Wells, Blair, and Bates disapproved it. Lincoln has left his own

* An excellent summary of the views expressed may be found in Blaine's Twenty Years of Congress. Ch. XXI.

opinion in writing: "Without braving absurd conclusions we cannot deny that the body which consents to the admission of West Virginia is the Legislature of Virginia."* The West Virginians at the Capital were very anxious to learn whether the President had signed the bill. He had not done so at a late hour in the evening of December 31, which was the last day upon which the President might act. Jacob Beeson Blair, the member from the Parkersburg district, called at the White House on New Year Day, and was shown the bill with the familiar signature of "A Lincoln" attached. The President is quoted as having said afterwards that a telegram he received from Archie W. Campbell, editor of the Wheeling Intelligencer, largely influenced him in signing the bill.

39. The President's Proclamation of Admission. The admission of the State was subject to a condition: the people must ratify the amendment proposed in the act for the gradual extinction of slavery. Fortunately the Convention which framed the constitution, as if anticipating some emergency, had adjourned subject to the call of its chairman. It was reassembled, the amendment was adopted, and submitted to the people, by whom it was ratified. In accordance with the act of Congress the result of this action was certified to the President of the United States by the President of the Convention, and on April 20, 1863, President Lincoln issued his proclamation, that at the expiration of sixty days from the date of the proclamation the act admitting the State would be in effect. Accordingly on the 20 day of June, 1863, West Virginia became the thirty-fifth State in the Union.

40 The Reorganized Government of Alexandria and Richmond. On May 23, 1863, Governor Pierpont, who had theretofore held the office of Governor of Virginia under the Restored Government by virtue of election by the Wheeling Convention, was elected Governor by a vote of the people for

*John Nicolay and John Hay's Abraham Lincoln. A History V. II., p. 285

the term of three years beginning January 1, 1864. Upon the organization of the new State the records and archives pertaining to the Old Dominion were removed to Alexandria on the Potomac opposite Washington, and within the Federal lines. After the subtraction of West Virginia only four counties were left which had been represented in the Reorganized Government, namely, Accomac and Northampton on the Eastern Shore, and Fairfax and Alexandria just opposite Washington. In May, 1865, the seat of government of the Reorganized Government was again removed from Alexandria to Richmond, after which the organization that had given its adherence to the Confederate States Government ceased to exist, and the authority of the Pierpont government was recognized by the Congress and by the President as the legitimate government of Virginia, and was accepted as such throughout the Commonwealth. Pierpont continued in office until 1868, when he was succeeded by Henry H. Wells.

41. Constitutionality of the Act. The question is often asked, Was the admission of West Virginia constitutional? Its answer depends upon the answer to another question, was the Reorganized Government formed at Wheeling the legitimate government of Virginia? Prior to the formation of West Virginia two rival authorities, each with a Governor and other officers, and a Legislature, simultaneously exercised the powers of a state government within the territorial limits of Virginia; the one was at Richmond, and the other was at Wheeling. John Letcher was Governor at Richmond; Francis || H. Pierpont at Wheeling. The government at Richmond exercised control over about two-thirds of the area of the State; it was supported by a preponderance of the wealth, power, and people of the State; it disavowed any allegiance to the Government at Washington, which claimed to be the legitimate Government of the whole United States; it acknowledged allegiance to the Confederate States of America, which were at war with the Government at Washington; it had no

representation in the Congress at Washington, and did not desire to have any; it promulgated an act purporting to release the officials from their oaths taken to support the Constitution of the United States; it claimed to be the government of all Virginia. The government at Wheeling exercised jurisdiction over less than one-third of the area of Virginia; it represented a minority of the wealth, power, and population of the State; it acknowledged allegiance to the Government at Washington; it repudiated the Confederate States of America; it was acknowledged as legitimate by the Government at Washington, by the admission of Senators elected by its Legislature, by the admission of its Representatives in the House, and in many other respects; its Senators, Carlile and Willey, were elected to fill vacancies caused by the resignation of Hunter and Mason; its three members in the House were elected from the three western districts of Virginia at the regular election held under the laws of Virginia on May 23, 1861; vacancies in its executive, legislative, and judicial offices were filled in the same way in which those vacancies would have been filled, had there been no secession and no war; its legislature was composed largely of members of both Houses regularly elected at the May election, 1861, together with a number of holdover Senators elected in 1859, about whose right to sit in the Virginia Legislature no question would have been raised but for the war; it also claimed to be the government of all Virginia. Was either of these organizations in point of law the government of Virginia? If so, which one? And who, or what authority, shall decide the fact? John Randolph Tucker, in his commentary on the Constitution of the United States, says: "When there are rival governments and the demand is made by either or both (for recognition) it has been decided

that when the application is made the President may have the authority to decide which is the legitimate government. President Lincoln recognized the Reorganized Government at Wheeling as the legitimate government of all

Virginia. The Congress recognized it in many ways, and gave it the real seal of its sanction by the admission of West Virginia, which was the real test of its legal authority. The Supreme Judiciary in time recognized it when the question was raised in the suit brought by the State of Virginia against West Virginia to recover jurisdiction over Berkeley and Jefferson counties. So whatever finespun constitutional theories may have prevailed in the past or may be advanced in the future, the fact remains that in the erection and admission of West Virginia the forms of law in such cases prescribed by the Federal Constitution were strictly observed, and the act has received the official sanction of every department of the Federal Government. To dispute the fact now is but to quarrel with fate. If it be true that the act was accomplished by the invention of a legal fiction, its binding force is none the less potent on that account; for the whole history of the administration of justice under English law, from time immemorial, is crowded with instances of the invention of legal fictions in order to attain the ends of justice. West Virginia asked no more than justice, and was unwilling to take less: "indeed got only what was equitably due, and what she was entitled to claim by the natural right of self-government."

42. Present Conditions. The attainment of what West ginians conceived to be their natural and political rights removed the cause of all estrangements that had ever existed between the sections east and west of the mountains. It fell to the lot of Virginia to suffer the horrors and penalties of a war, which her ablest statesmen would gladly have avoided, had it been possible from their point of view. But Virginia was caught between two compelling forces, and yielded to the pressure of the South. The end of that conflict left her territory practically identical with that of the old Colony, which embraced the region of the Tidewater and the Valley, between the Chesapeake and the Alleghanies. The last quarter of a century has brought its possibilities in the progressive devel