Statements in the House of Representatives on the Creation of the State of West Virginia Congressional Globe - 9 December 1862 Mr. CRITTENDEN. I have not much to say upon this subject, and therefore shall speak briefly. I have no feeling upon this matter.... With me, in the consideration I have given to it, it is a matter of principle and constitutional law. These are views which may appear a little stale in this body. From long usage and long habit of regarding the Constitution of the United States as the only safe basis upon which we can act, the only safe rule we can follow in peace or in war, in prosperity or adversity, I must be excused for regarding this subject, not upon the broad and vague ground of my sympathies or my feelings, but upon the ground of the great policy of this nation, and the Constitution of the nation.          I feel for the people of Western Virginia. I appreciate their patriotism and their valor, and I appreciate their wish to become, as expressed by their Legislature, a free people. I have a proper regard for all that; I have a proper respect and a healthy sympathy for them; but when I am called upon to give my judgment and to case my vote, I must look to the Constitution of my country. I see there that no State can be divided and another State made out of its territory without its consent. That is in positive and unequivocal language. Now, what are we asked to do? Make a new State out of Western Virginia.          Sir, can any argument make stronger the case than the mere statement of the question? The Constitution says you shall make no new State within the jurisdiction of another State without its consent. You are asked to make Western Virginia into a State. The Constitution requires that the State of which the new State has formed a part shall give her consent. Where is there room for doubt? If the Constitution which we have sworn to support is to be the rule of our action, I ask you, in all calmness and all sobriety of feeling, is not the rule plain?          There was a Virginia once by that simple name — a great name at one period of our history, and one of the original formers of the Constitution. She never was admitted into the Union; she formed it; she is a part of the original creation and being. Does she ask to be admitted? No. But a part of that State wishes now to be formed into a new State, and to be admitted into the Union as an independent State. Is not that so? Is there any ingenuity or any technicality which can change the face of the facts?          You say that old Virginia no longer exists, and therefore can give no consent. Is there one man here who can be misled and blinded by such hypercriticism? We know the fact to be otherwise. We know that at this time old Virginia is in a state of rebellion, which we are endeavoring, by all the means in our power, to put an end to; a rebellion which once put a end to, will restore her to her constitutional place in the Union just as she existed before. You cannot admit a new State out of her boundaries without her consent, says the Constitution. That is the limit of your power, and that is enough to settle this question. You are appealed to and your power is invoked now to make this a new State. It seems to me that you cannot do it. I do not presume to argue with you on this question, because it seems to me that the very statement of it is an argument stronger than anything that I can urge. We have heard a great deal of imagination and of sympathy. That does not make constitutions. That does not sustain empires. It is not out of such stuff as that that the great, the majestic pillars have been reared that support the might fabric of this Republic. This question is to return to you. Remember that! Look to the future. Is there a man here who does not contemplate the restoration of this Union, and the restoration of all these States to it? If Virginia were to-morrow to lay down the arms of her rebellion and to ask to be admitted into our councils, to be part of us, as she is by the Constitution to-day, to be actually what she is constitutionally, what could you say to her if you had created a new State out of her territory? What could you say to her? Do you believe that with the pride which ought to belong to one of the States of this Union, the State would agree to come back, not as she was, not with the boundaries she had, but cut up and divided and made into different States, to come back with circumscribed and diminished power as a State? Can you expect such a thing? Suppose, then, this question of peace or war, the restoration of the Union or the continuation of hostilities depends upon Virginia coming back, and coming back as she went, coming back as she was when she made this Constitution; coming back whole and entire as Virginia, not as Eastern and Western Virginia, but coming back as Virginia. I warn my friends from Western Virginia to look to the future. You to-day make them a new State, and interests rise up around them. Peace is to come in a few years, and we here are to be appealed to on another side of this great question. You will be told that we had no power to admit this State, and you will be obliged to acknowledge it. Old Virginia will come back and say, “I gave no consent, and there is the Constitution which says that without my consent you shall not do what you have done, and now you cannot deprive me of my rights by any such unconstitutional course of procedure.”          Mr. STEVENS. Without intending to occupy a very great deal of the time of the House... I wish to give the reasons for my vote. I have had great difficulty in determining how I ought to vote upon this bill as a question of policy, and I can hardly say that I have yet made up my mind; but, as at present advised, I shall vote for the admission of this State, and I desire to state the grounds for so doing. I do not desire to be understood as being deluded by the idea that we are admitting this State in pursuance of any provisions of the Constitution. I find no such provision that justifies it, and the argument in favor of the constitutionality of it is one got up by those who either honestly entertain, I think, an erroneous opinion, or who desire to justify, by a forced construction, an act which they have predetermined to do. By the Constitution, a State may be divided by the consent of the Legislature thereof, and by the consent of Congress admitting the new State into the Union.          Now, sir, it is but mockery, in my judgment, to tell me that the Legislature of Virginia has ever consented to this division. There are two hundred thousand, out of a million and a quarter of people, who have participated in this proceeding. They have held a convention, and they have elected a Legislature in pursuance of a decree of that convention. Before all this was done the State had a regular organization, a constitution under which that corporation acted. By a convention of a large majority of the people of that State, they changed their constitution and changed their relations to the Federal Government from that of one of its members to that of secession from it. Now, I need not be told that that is treason. I know it. And it is treason in all the individuals who participated in it. But so far as the State municipality or corporation was concerned, it was a valid act, and governed the State. Our Government does not act upon the State. The State, as a separate and distinct body, was the State of a majority of the people of Virginia, whether rebel or loyal, whether convicts or freemen. The majority of the people of Virginia was the State of Virginia, although individuals had committed treason.          Now, to say that the Legislature which called this seceding convention was not the Legislature of Virginia, is asserting that the Legislature chosen by a vast majority of the people of a State is not the Legislature of that State. That is a doctrine which I can never assent to. I admit that the Legislature were disloyal, but they were still the disloyal and traitorous Legislature of the State of Virginia; and the State, as a mere State, was bound by their acts. Not so individuals. They are responsible to the General Government, and are responsible whether the State decrees treason or not. That being the Legislature of Virginia, Governor Letcher, elected by a majority of votes of the people, is the Governor of Virginia — a traitor in rebellion, but a traitorous Governor of a traitorous State. Now, then, how has that State given its consent to this division? A highly respectable but very small number of the citizens of Virginia — the people of West Virginia — assembled together, disapproved of the acts of the State of Virginia, and with the utmost self-complacency called themselves Virginia. Now, is it not ridiculous? Is not the very statement of the facts a ludicrous thing to look upon — although a very respectable gentleman, Governor Pierpont, was elected by them Governor of Virginia? He is a most excellent man, and I wish he were the Governor elected by the whole people of Virginia.          The State of Virginia, therefore, has never given its consent to this separation of the State. I desire to see it, and according to my principles operating at the present time, I can vote for its admission without any compunctions of conscience, but with some doubt about the policy of it. My principles are these: we know the fact that this and other States have declared that they are no longer members of this Union, and have made, not a mere insurrection, but have raised and organized an army and a power, which the Governments of Europe have recognized as a belligerent Power. We ourselves, by what I consider a most unfortunate act, not well considered — declaring a blockade of their ports — have acknowledged them as a Power. We cannot blockade our own ports. It is an absurdity. We blockade an enemy’s ports. The very fact of declaring this blockade recognized them as a belligerent Power, entitled to all the privileges and subject to all the rules of war, according to the law of nations....          Now, then, sir, these rebellious States being a Power, by the acknowledgment of European nations and of our own nation, subject and entitled to belligerent rights, they become subject and entitled to the rules of war. I hold that the Constitution has no longer the least effect upon them. It is idle to tell me that the obligations of an instrument are binding on one party while they are repudiated by the other. It is one of the principles of law universal, and of justice as universal, that obligations, personal or national, must, in order to be binding, be mutual and be equally acknowledged and admitted by all parties. Whenever that mutuality ceases to exist it binds neither party. There is another principle just as universal; it is this: when parties become belligerent, in the technical sense of the word, the war between them abrogates all compacts, treaties, and constitutions which may have existed between them before the war commenced. If we go to war with England to-day, all our treaty stipulations are at an end, and none of them bind either of the parties. If peace is restored, it does not restore any of the obligations of either. There must be new treaties, new obligations entered into, before either of the parties is bound.          Hence I hold that none of the States now in rebellion are entitled to the protection of the Constitution, and I am grieved when I hear those high in authority sometimes talking of the constitutional difficulties about enforcing measures against this belligerent Power, and the next moment disregarding every vestige and semblance of the Constitution by acts which alone are arbitrary. I hope I do not differ with the Executive in the views which I advocate. But I see the Executive one day saying “you shall not take the property of rebels to pay the debts which the rebels have brought upon the Northern States.” Why? Because the Constitution is in the way. And the next day I see him appointing a military governor of Virginia, a military governor of Tennessee, and some other places. Where does he find anything in the Constitution to warrant that?          If he must look there alone for authority, then all these acts are flagrant usurpations, deserving the condemnation of the community. He must agree with me or else his acts are as absurd as they are unlawful; for I see him here and there ordering elections for members of Congress wherever he finds a little collection of three or four consecutive plantations in the rebel States, in order that men may be sent in here to control the proceedings of this Congress, just as we sanctioned the election held by a few people at a little watering place at Fortress Monroe, by which we have here the very respectable and estimable member from that locality with us. It was upon the same principle....          But, sir, I understand that these proceedings all take place, not under any pretense of legal or constitutional right, but in virtue of the laws of war; and by the laws of nations these laws are just what we choose to make them, so that they are not inconsistent with humanity. I say, then, that we may admit West Virginia as a new State, not by virtue of any provision of the Constitution, but under our absolute power which the laws of war give us in the circumstances in which we are placed. I shall vote for this bill upon that theory, and upon that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding.          This talk of restoring the Union as it was under the Constitution as it is, is one of the absurdities which I have heard repeated until I have become sick of it. This Union can never be restored as it was. There are many things which render such an event impossible. This Union shall never with my consent be restored under the Constitution as it is with slavery to be protected by it; and I am in favor of admitting West Virginia because I find here a provision which makes it a free State, and because of the very worthy men who have been sent here to represent the people of the proposed State. I would almost trust them with the freedom of this Union, and that is saying a great deal, for I find that when you admit men here from the slaveholding States, though they may not represent ten men the owners of slaves, they are constantly going on questions of policy with the friends of slavery, that is, with the Democratic party. They went with them in caucus, and they almost uniformly act with them here. That is the only doubt in my mind. I have no difficulty in respect to the power. That we have it under the belligerent right I have mentioned, I do not doubt. But if I had not almost entire confidence in the people of Western Virginia, and if I had not known their respectable Representatives here, I confess that I should hesitate much in voting for this bill; not because we have not the power under the Constitution to do it, but because I should fear that when once admitted they would use their power, if ever they had it, to re-establish slavery; but I have no fear of it in this instance. I had some hesitation as to how I ought to vote, but I have consulted the acts of the Executive, and I find that while in a great majority of instances in the rebel States he has had but little regard to the Constitution, he has upheld it in only one. In that he prohibits the taking of the property of women and children of rebel men who are in arms with the enemies of the Union.