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The dismemberment of Virginia.

An article with this title was printed in the Publications of the Southern Historical Association, January, 1898. It has since been revised by the author and, as now presented, is much amplified.—Ed.

Rightly considered, all narratives of past events are, or should be, ‘written for our instruction,’ and there are few in the long and varied annals of the English-speaking race more pregnant with warning and suggestion than the one which it is the purpose of these pages briefly to recall. The circumstances attending it are plain matter of record, and the time which has elapsed since their occurrence is favorable to an impartial examination of their nature and tendency, while, imbedded as they are in official archives, it has in no degree impaired their historical certainty. Nevertheless, though not forgotten, more than three decades of trying and eventful years have not passed without pushing them sensibly into the background, and obscuring to a considerable extent their true importance. An attempt will here be made to present them with as much brevity as may be consistent with clearness, and at the same time to direct attention to their real character and significance.

In April, 1861, after hostilities between the North and South had actually commenced, and Virginia had been called upon by the Federal Executive to furnish troops to be used against the seceding [40] States, the Convention of that Commonwealth which had hitherto been engaged in persistent efforts to preserve peace and restore harmony, all hope of this having disappeared, at length adopted an ordinance of secession. Immediately on its passage a majority of the members from the northwestern part of the State withdrew from the Convention, and a movement was at once set on foot in that section to resist and nullify an act which, whether wise or unwise, was at all events undoubtedly that of the people of Virginia, acting as an organized commonwealth, through the highest representative body known to our institutions.

At a meeting held in the town of Clarksburg, in Harrison county, a call was issued, addressed exclusively to the people of the northwestern counties, inviting the appointment of delegates to a convention to be held at Wheeling, on the 13th of May. There was no pretense even of a regular election of delegates to this Convention. They were appointed in some cases by public meetings, without reference to the number of qualified voters composing them, in others by papers to which were appended a few signatures requesting certain persons to act as representatives, in yet others without even this faint show of respect for the principle of popular choice. A number of the residents of Wheeling and of Ohio county, in no way more entitled to seats than any similar number of private citizens from any other locality, together with the delegates thus irregularly appointed, composed the motley gathering. Out of one hundred and forty counties and three cities the Committee on Credentials could report representatives from no city and only twenty-six counties. The greater or smaller degree of irregularity in these proceedings is, however, of the less consequence, as it is abundantly evident that there was no shadow of legality in the whole movement from its beginning to its close.

On the recommendation of this assemblage, a Convention, claiming at different stages of its existence to represent a varying number of counties never exceeding thirty-six, met at Wheeling on the 11th of June, 1861. This body, even nominally representing scarcely more than a fourth of the counties of the State, in some of which there were strong minorities, in others probably actual majorities in favor of abiding by the action of the regular Convention at Richmond, assumed nevertheless to speak in the name of the whole people of Virginia, and at once proceeded to alter the State Constitution in important particulars, to vacate, and re-fill all the State offices, and to prescribe new oaths and qualifications for their holders. [41]

Its next step was to inaugurate measures looking to the dismemment of the Commonwealth. On the 20th of August, 1861, it passed an ordinance to provide for the erection of a new State within the territory of Virginia. This ordinance enumerated certain counties which should form the new State, and certain others—among them Berkeley and Jefferson—which, or any of which, the Constitutional Convention of the proposed State was authorized to include within its boundaries, if the said counties, or any of them should, by a majority of the votes cast on the question, declare their wish to form part of the commonwealth so proposed to be erected, and should elect delegates to the Convention.

Within the same month of August, too short a period having intervened to allow adequate time for consideration and discussion, or even for proper notice on so grave a question, the vote was taken, and resulted, as it was intended, and indeed inevitable, that it should result. Hardly more than one-fourth of the voters took part in the election, most of those opposed to the movement regarding the whole proceeding as a farce which it would be alike unworthy and impolitic for them to countenance by participating in. A handful of ballots were cast on the other side, but the great mass of those who went to the polls voted, as, of course, in the affirmative, the numbers standing 18,408 to 781.

The Convention met on the 26th of November, 1861, and adopted a constitution to be submitted to the people on the 3rd of the following April. Mutatis mutandis, this election was a copy of the preceding. The same causes produced the same effects, but, having had a longer time to operate, in a somewhat intensified form. The great majority did not appear at the polls; of those who did almost all voted for the constitution, the respective numbers, in this case, being 18,862 in favor of to 514 against it. So stand the records on their face, no attempt, be it noted, having been made here to go behind them, or to reach even a conjectural estimate as to the proportion of these affirmative votes obtained by illegitimate methods—by corruption of various kinds, by fraud, by intimidation.

The Legislature of what was called the reorganized government of Virginia, sitting within the limits of the proposed State, and representing, so far as they could properly be said to represent any at all, substantially the same people with those therein included, gave their consent, in the character of legislators of the old State, to what they themselves had done, as agents in the formation of the new. [42]

The Constitution thus adopted and ratified was then submitted to Congress. The same clause of the Federal Constitution, however, which requires the consent of that body to the erection of a new State within the jurisdiction of any member of the Union, requires not less clearly the consent of the Legislature of the latter also. The two provisions are contained in the same sentence, and expressed in the same words, are equally obligatory, and must stand or fall together. Nevertheless, the assembled ‘ambassadors of the States,’ to use the apt phraseology of a distinguished Massachusetts statesman in reference to the Senate, specially designed, in the complex plan of the government, to guard their rights and uphold their dignity, on the 14th of July, 1862, passed the bill of admission.

But, strong as was the disposition of the Senate at this time to regard the instrument, to which it owed its existence as ‘mere filigree, pretty to look at, but too brittle to bear the slightest pressure,’ such a breach of one of its plainest provisions did not pass without strenuous protest. John S. Carlile, holding a seat as Senator from Virginia, under the Wheeling government, called attention to the fact that eleven of the counties included in the proposed State had never been represented at all, ‘either in the convention that authorized a vote of the people to be taken upon the question of a new State, or in the Legislature of the State, or in the convention that formed the constitution of the State,’ that three others had only been represented by a Senator, ‘never having a single member of the House of Delegates in the General Assembly,’ and that among the counties having nominal representation there was one polling from 800 to 1,000 votes, the delegate to the Convention from which had received only 76, and another polling from 1,200 to 1,500 votes, the delegate from which had received less than 400. He affirmed that these were not the only instances of a like character that could be adduced in justification of his opposition to the bill, and closed by declaring it to be his sincere belief that if the disposition to interfere with the rights of the States exhibited by that Congress was persisted in, the Constitutional Union formed by the ‘fathers’ would be lost forever.

Mr. Wilkinson, of Minnesota, said that if Mr. Carlile's argument had been addressed to the Committee on Territories, of which they were both members, he would never have assented to the admission of West Virginia.

Mr. Trumbull, of Illinois, thought it in every point of view inopportune [43] to attempt to force Western Virginia at that time as a separate State into the Union, and trusted that the bill might not pass.

Mr. Willey, Mr. Carlile's colleague under the ‘restored’ government of Virginia at Wheeling, while advocating the bill, stated that he did not believe, much as he regretted to have to say it, that a single county east of the Blue Ridge would acknowledge the authority of the Wheeling government if the United States soldiers were withdrawn.

Mr. Powell, of Kentucky, did not believe that it was ever contemplated by the Constitution that less than one-fourth of the people constituting a State should ‘give their consent to themselves to form a new State within the limits of one of the States of this Union.’ It was ‘inaugurating a principle’ which was, in his judgment, ‘radically destructive of the great principles of the Constitution,’ and to which he could never assent. ‘If,’ said he, ‘the cities of New York and Brooklyn and the counties in which they are, were to get up a little bogus legislature, and say they were the State of New York, and ask to be admitted and cut off from the rest of the State, I would as soon vote for their admission as for the admission of this new State. No Senator pretends to claim that a majority, that even a third of the people of the State of Virginia have ever had anything to do with rendering their assent to the making of this new State within the territorial limits of that ancient Commonwealth.’

In spite of every remonstrance, the bill passed the Senate by a vote of 23 to 17, but the House of Representatives failed to act upon it before the close of the session. Thereupon, the Wheeling Legislature passed a joint resolution expressing ‘the greatest anxiety and interest in the successful issue of the movement,’ and another, rebuking Mr. Carlile for his opposition to it, and alleging such opposition as one of the grounds for requesting his resignation. Meanwhile, as if determined to leave no possible doubt as to their real animus toward the State they assumed to represent, they had already, some time previous to this, initiated measures (happily never consummated) looking to the transfer of the counties of Accomac and Northampton to Maryland. If these facts are fairly considered the conclusion to be drawn from them is clear and unavoidable. Is it credible, is it even conceivable, that the chosen representatives of a proud and ancient commonwealth, whose people, throughout their entire history, have been eminently distinguished for intense State pride and patriotism, should have been thus eager to rend her limb from limb, and to mar at once her territorial completeness and her historic unity? [44] This alone, like the test, identical in principle, applied in the famous Judgment of Solomon would of itself be enough to settle, beyond the possibility of cavil, a point already, indeed, sufficiently clear without it. The body which performed these acts was, in no possible sense, legal or moral, the Legislature of Virginia, and had no shadow of right in law or fact, to speak in her name or with her authority.

Early in the next session the bill for the admission of West Virginia was taken up in the House of Representatives, and here again the palpable infraction of the Constitution involved in its passage gave pause to some even among the staunchest Republican partisans.

Mr. Conway, of Kansas, went directly to the root of the matter, and declared plainly that the ‘restored’ State of Virginia was in his judgment no State at all. ‘I do not,’ he said, ‘regard this proposed division of Virginia as having received that assent from the Legislature of the State which the Constitution requires. * * * A number of individuals met at Wheeling and without any legal authority whatever, arranged a plan for a government. * * * The utter and flagrant unconstitutionality of this scheme—I may say its radically revolutionary character—ought to expose it to the reprobation of every loyal citizen and every member of this House.’

Mr. Colfax, of Indiana, had had grave doubts during the preceding session as to the propriety of passing the bill, but in view of the recognition of the Wheeling government by the President, by various heads of departments, and by the two Houses of Congress, he considered the question of the legitimacy of that government as settled by authority,1 and would give the bill his support. Mr. Olin, of New York, while expressing his disposition to vote for it, confessed that he did not fully understand upon what principles of constitutional law it could be justified. ‘It can not be done, I fear, at all,’ he said. ‘It can be justified only as a measure of policy2 or of necessity.’3

Mr. Crittenden, of Kentucky, held that the Wheeling government could be regarded as the government of Virginia only by a fiction. ‘We know,’ he said, ‘the fact to be otherwise.* * * What does it amount to but that here is an application to make a new [45] State at the instance of the parties desiring to be made a new State, :and nobody else consenting, and nobody else left to consent to it? * * * It is the party applying for admission consenting to the admission. That is the whole of it.’ Language could hardly be more emphatic or more accurate.

Mr. Dawes, of Massachusetts, was equally decided in his opposition to the scheme. ‘So far as I know,’ he said, ‘I do not believe there is a single person representing any portion of that part of Virginia which is left who ever consented to the erection and admission of this new State. Not one.’ And again. ‘It is trifling with the spirit of the Constitution to say that any portion of the State of Virginia which is left has consented in any way, in any form and substance to the dismemberment of the State.’

Mr. Segar, from the Norfolk district, in Virginia, protested earnestly against the passage of the bill. ‘I must say,’ he said, ‘that according to my judgment the legal argument is altogether against the admission of the new State.’

Of the forty-eight counties of which it was to be composed, eleven had never, he declared, had even the semblance of representation. It would be found that ‘there was not only not a majority of the people, but a singularly small proportion of them that voted for the new State and its new constitution.’ Ten counties with a population of 50,000 ‘did not cast a vote on the new State and constitution.’ In three counties, he was prepared to assert, on his personal knowledge of the sentiments of the people, that they were ‘as unanimous against this measure as any people ever were or ever can be against any measure whatsoever.’ The tyranny of the mother country to her colonies was no worse than the tyranny embodied in this bill. ‘I will only add in conclusion,’ he said, ‘that my constituents, one and all, shudder at the idea of the dismemberment of the Old Dominion.’

Space hardly admits of further quotation, but the utterances of Mr. Stevens, of Pennsylvania, are too remarkable to be passed over. ‘I do not,’ he declared bluntly, ‘desire to be understood as being deluded by the idea that we are admitting this State in pursuance of any provision of the Constitution. I find no such provision that justifies it. * * * * Now, sir, it is but mockery, in my judgment, to tell me that the Legislature of Virginia has ever consented to this division. * * * * I am grieved when I hear men high in authority sometimes talking of the constitutional difficulties about enforcing measures against this belligerent power (the Confederate States), and the next moment disregarding every vestige and semblance [46] of the Constitution. * * If he (the President) must look there (to the Constitution) alone for authority, then all these acts are flagrant usurpations.’

With such cool contempt does he brush aside the flimsy pretexts by which it had been sought, in striking fulfilment of Gouverneur Morris' famous prediction to avoid the ‘shame if not the guilt of perjury,’ by affecting to reconcile acts like this with the provisions of the fundamental law. Better, in his view, not to attempt it; better that the ‘legislative lion’ should burst at once and boldly through the ‘meshes’ of the constitutional net. The attempt, indeed, by whatever abilities sustained, could not but end in failure; for it was a task beyond the power of human accomplishment. The Constitution, in letter and in spirit, from the first line to the last, looks solely to a voluntary association of co-equal commonwealths. There is no point in the whole instrument so jealously guarded, so fenced in by precaution on precaution as the absolute equality of the States, and it is utterly impossible, in accordance with its provisions, to discriminate between them, to lay down one law for Massachusetts and another for South Carolina; to retain New York by consent and Georgia by constraint; to govern Ohio by the ballot and Mississippi by the bayonet. Once embarked in the essentially unconstitutional enterprise of coercion, day by day and hour by hour, such insuperable obstacles arose in the way of prosecuting it within the limits imposed by the Constitution, that human ingenuity strained and tortured in vain, at length, in sheer despair, abandoned the hopeless attempt. Of what avail laboriously and painfully to dispose of one constitutional difficulty by skilful evasion, and of another by forced construction, merely to find oneself immediately confronted by another, and another, and another, in endless succession? The process could not go on indefinitely; from the beginning it was apparent that, sooner or later, it lust inevitably break down. All the subtlety displayed by the ingenious brothers of Swift's famous satire in affixing to their father's will a meaning directly opposed to its obvious intent, would hardly suffice to wrest the organic law of the Union so far from the purpose of its framers as to render it applicable to a condition in which one portion of the States are invaded, subjugated and governed as military districts by the other portion. So manifest, indeed, was this that the Congress at Washington, impelled by an unacknowledged, but not the less imperative sense of it, felt constrained, while in the very act of prosecuting a war as distinctly one of conquest as that which Xerxes waged against Greece, or Edward [47] I against Scotland, to disclaim in words ‘any purpose of conquest or subjugation, or the overthrowing or interfering with the rights or established institutions of those (the seceding) States,’ and to declare by solemn resolution its object to be simply the preservation of the Union, ‘with all the dignity, equality, and rights of the several States unimpaired.’ This is in the very spirit of the scriptural son, who ‘answered and said, I go, sir; and went not.’

It would be hard to find language more exactly and comprehensively descriptive of all that the policy actually pursued was not. Every statement of this declaration was contradicted, every pledge broken, while, in the words of an English writer (Professor Goldwin Smith), whose systematic Northern bias, unphilosophical and misleading as it is, could not wholly blind him to the patent facts of the case, ‘the stronger’ of the ‘two separate nations’ ‘proceeded to attack, conquer and re-annex the weaker.’ It is matter of history, the whole world knows, how the ‘established institutions’ and ‘all the dignity, equality and rights’ of the latter fared in this process. Congress might, indeed, as well have passed a resolution that the war should be waged without inflicting the slightest injury upon person or property. The one would have been as practically effective, as much regarded, as the other.

In truth there were but two practicable and consistent courses open for adoption—either to adhere to the Constitution and abandon coercion, or to abandon the Constitution and adhere to coercion. Between these, and these alone, lay the choice.

And so, at length, the theory of Mr. Stevens, while not, as in his case, candidly avowed, became the one generally accepted and acted on, though expressed, it is true, in somewhat more euphemistic language, as, for example, in that which fell from Mr. Noell, of Missouri, during the debate on this bill. ‘* * * * we cannot afford, while the nation is trembling upon the brink of destruction, to split hairs on technical constitutional points. If I had power I would save the nation's life by the exercise of all powers necessary to the result.’ Or in the passage from Mr. Blaine's ‘Twenty Years of Congress,’ in which he sums up as follows: ‘The organic law would not have been strained, legal fictions would not have been invented, contradictory theories would not have been indulged, if a great national interest had not required the creation of West Virginia.’

Translated into plain English, this will be found to differ in no way substantially from Mr. Stevens' doctrine. The whole transaction, indeed, is a forcible and even startling illustration of the persistent [48] survival, as a vital factor in modern politics, of the much-denounced Machiavellian ‘reason of State.’ Without the need of further search, the distinguished lecturer, who not long since delivered at Oxford, England, so interesting and suggestive a discourse on the Florentine statesman of sinister memory, might have found in this transaction alone, abundant illustration of the power it still retains to obscure the ‘awful difference’ between ‘right and wrong.’ Stronger evidence could hardly be required that the author, or at least the most prominent literary exponent, of the doctrine in question ‘is not a vanishing type, but a constant and contemporary influence,’ though it is probable enough that those who, on this occasion, acted so completely in his spirit, had never read a line of his works, and were but poorly acquainted with the events of his life.

The bill for the admission of West Virginia finally passed the House (December 10th, 1862), by a vote of 96 to 55, the Democrats voting solidly in opposition, as did also a number of prominent Republicans, including Mr. Dawes, with a majority of his colleagues from Massachusetts; Mr. Conkling, of New York; Mr. Thomas, of Maryland, and Mr. Conway, of Kansas. The act thus passed required an amendment to the Constitution of West Virginia on the subject of slavery, as a condition precedent to admission. This condition was complied with, and the Constitution as amended was ratified at an election in which only a very small vote was cast. But the act of mutilation was not even yet fully consummated. In the bill, as passed, admitting the State, and prescribing its boundaries, the counties of Berkeley and Jefferson were not included; nor were they in the clause of the Constitution of West Virginia itself, enumerating the counties of which it was to consist. It was, however, provided, in the event of certain other counties (with which we are not here concerned), being included in the new State, that then the district composed of the counties of Berkeley, Jefferson and Frederick, should also become a part of it, if a majority of the votes therein were cast in favor of the adoption of the Constitution at an election to be held on the first Thursday in April, 1863.

On that day there was no election at all held in these three counties. But it was further provided in the schedule to the Constitution that ‘if from any cause the said election be not held in and for any of the said counties at the time named, the same may be held at such subsequent time or times as the commissioners hereby appointed may approve, if so done as not to delay the submission of the result to the Legislature for its action.’ No such vote was taken prior to the [49] meeting of the next Legislature. There was, however, a provision in the act of January 31st, 1863, by which the consent of the so-called Legislature of Virginia was given to the transfer of the county of Berkeley to the new State, authorizing the Governor, if in his opinion the election could not be safely and properly held in that county on the day first designated, to postpone it to another day to be by him appointed. Similarly, in the act of February 4th, 1863, giving consent to the admission of certain counties, of which Jefferson was one, into the newly-formed Commonwealth, it was provided that if the condition of the country would not permit, or from any cause the election to decide the question of annexation could not be fairly held on the appointed day, the Governor should, as soon as it could be safely and fairly held, issue a proclamation ordering such election.

It is notorious that at the time fixed for submitting the question, the condition of the counties of Berkeley and Jefferson rendered the opening of the polls impracticable, and that the voters, a large majority of whom were opposed to the transfer, could not attend, and had, indeed, no proper notice of the election. In Berkeley there were nine precincts, and in Jefferson eight, yet, so far as appears, at only two of the seventeen were any votes cast. At these precincts the election was held by commissioners disqualified under the laws of Virginia, while no commissioners were appointed, or, at all events, notified of their appointment, and no polls opened ac the other fifteen precincts. Jefferson county, in which were located the precincts above mentioned, where alone, any ballots were cast, had more than 1,700 votes; less than 100 were polled, not a few of these being fraudulent and illegal. Anything like a free and fair election was indeed obviously impossible while the country was intersected by military lines, and the citizens often strictly confined to their own premises.

In the face of these facts the so-called Governor of Virginia officially certified the result of the election as being in favor of the annexation of Berkeley and Jefferson to West Virginia, the Legislature of which in its turn passed the acts for the admission of these counties, and this shameful travesty of solemn constitutional proceedings was complete.

As has been already observed, however, the Congress of the United States, the assent of which is by the Constitution made indispensable to the transfer of territory from one State to another, in the act [50] admitting West Virginia, did not include these counties within its limits. In addition to this, and as evidence that Mr. Peirpoint was not sustained in his position even by the most extreme class of Unionists (so-called)4 in Virginia, it should be noted that the convention which met in Alexandria, on the 13th of February, 1864, consisting of, and representing, that class alone, entirely ignored his proclamation announcing the transfer of Berkeley and Jefferson to West Virginia, and recognized these counties in every possible manner as integral parts of the old State.

On the removal of the Alexandria government to Richmond, at the close of the war, the first General Assembly which met there, reconstituted and transformed by the addition of members from the the counties——an overwhelming majority——which had adhered to the Richmond authorities, lost no time in appealing to the people of West Virginia to co-operate with them in the ‘restoration of the ancient Commonwealth of Virginia, with all her people, and up to her former boundaries.’ Indeed, the effect of this infusion of new blood, the difference between a real and a mock representation of the people, had made itself sensibly felt at a still earlier period. Previous to the effort now made towards a complete reunion of the divided Commonwealth, the Assembly had passed resolutions declaring that the conditions prescribed in the several acts intended to give consent to the transfer of Berkeley and Jefferson had not been complied with; that, as the consent of Congress had not yet been given to the transfer, the proceedings being still inchoate, the State's consent might properly be withdrawn, and that it was thereby withdrawn.

In the teeth of these measures on the part of a body recognized by themselves as the lawful Legislature of Virginia—recognized, too, in the most solemn of all possible modes by inviting and accepting its ratification of an amendment to the Federal Constitution—the two Houses of Congress adopted a joint resolution consenting to the transfer of these counties to West Virginia.

To test the question of jurisdiction a suit was brought in 1867 by [51] the Commonwealth of Virginia before the Supreme Court of the United States. Notwithstanding the exasperation of feeling incident to the period, and the strong pressure in favor of the new State's claim, the Court was equally divided, which must, under the circumstances, be regarded as a decided moral, though of course not a legal victory for Virginia. On the reconstruction of the Court, and the appointment of two new justices in 1871, the case came up again, and on a demurrer filed by the counsel for West Virginia, was decided in her favor.

The dissenting opinion delivered by Justice Davis, and concurred in by Justices Clifford and Field, states the case tersely and clearly: ‘To my mind there is nothing clearer than that Congress never did undertake to give its consent to the transfer of Berkeley and Jefferson counties to the State of West Virginia until March 2nd, 1866. If so, the consent came too late, because the Legislature of Virginia had, on the 5th day of December, 1865, withdrawn its assent to the proposed cession of the two counties. This withdrawal was in ample time, as it was before the proposal of the State had become operative as a concluded compact, * * *.’

It should be noted here, as making the case of Virginia still stronger, that this opinion proceeds on the assumption that there had been a real and valid assent previously given on her part to the proposed cession, an assumption utterly at variance with the facts.

Thus, in spite of the protest of the dissenting judges, the unconstitutional, violent and revolutionary proceedings of the executive and legislative branches, commenced, at all events, if not completed, flagrante bello, were sanctioned and confirmed by the judicial department, in a time of profound peace, when it might have been hoped that the voice of the laws, silent amidst the shock of arms, would be heard again, at least, in what should have been their ultimate refuge and inviolable asylum.

If further proofs are desired of the utter incompetence of the Supreme Court to act as a barrier against popular passion, and to guard the Constitution from the encroachments of a victorious and dominant party, they are deplorably abundant. Without stopping to dwell upon the case involving the constitutionality of the Reconstruction Laws, which, while actually under advisement by the Court, was violently snatched from its grasp by an act hurried through Congress and passed over the President's veto, or upon the still more notorious Legal-Tender cases, in which the Court was deliberately packed for the purpose of obtaining the reversal of a decision disagreeable to the [52] Government, it will be sufficient to recall the treatment it experienced in two memorable instances during the late war, as recorded by a leading Republican ‘after the most straitest sect’ of that political faith.

“The Dred Scott decision,” says Mr. Blaine, ‘received no respect after Mr. Lincoln became President, and without reversal by the court was utterly disregarded.’

And again, almost immediately afterward, on the same page, ‘When President Lincoln, in 1861, authorized the denial of the writ of habeas corpus to persons arrested on a charge of treason, Chief Justice Taney delivered an opinion in the case of John Merryman, denying the President's power to suspend the writ, declaring that Congress only was competent to do it. The executive department paid no attention to the decision.’ (Twenty Years of Congress, Vol. I, page 137.)

The reader will not fail to observe the naive unconsciousness with which it is here assumed by implication that the obligation of the constitutional oath, when particularly inconvenient or disagreeable to comply with, may be quietly set aside. As regards the Supreme Court itself, ‘Weighed in the balances and found wanting,’ must be the solemn verdict of History upon this tribunal, however admirable in its appropriate sphere, when viewed as the final arbiter of those high constitutional questions to which the real parties are not individuals or corporations amenable to process, but governments and commonwealths. For this function, as was long since pointed out by Mr. Calhoun with characteristic clearness and force, it could never have been intended, and is, from its organization, nature and limitations, essentially unfit. Brought face to face with questions like these, the Court, if it does not yield submissively to the sentiment of the party dominant for the time being, and place the dictates of its will, however ill-considered, intemperate or unjust, above the authority of the organic law, must stand helpless and without remedy, while it sees its decisions contemptuously set aside by the other branches of the Government, or, still worse, reversed by a bench re-constituted for that purpose. The subject cannot, in this place, be pursued further, but it is surely sufficiently evident that to trust political rights of the most vital character to the guardianship of a body such as this would be mere fatuity.

Justification of course there can be none; it remains only to inquire what palliation, if any, can be found, from the point of view of the actors themselves, for an outrage which in the case of political [53] communities is analogous to the maiming of the human body in that of individual members of society. Had the State, thus mutilated, evinced in her previous history a cruel, sordid or selfish spirit towards her sister States? Were her services to the Union slight and inconsiderable, her contributions to its history trivial and inglorious? Did she not at the period of the Revolution promptly take up a quarrel not primarily her own, and hasten to place herself, without waiting to count the cost, by the side of imperiled Massachusetts? Did she not, by her own unaided efforts, achieve the conquest of a vast domain, and afterward, with a more than imperial generosity, cede it as a free gift to the Confederation? Let the answer be taken from the lips, not of devoted sons or partial friends, but of eminent representatives of the geographical section and the political school most opposed to her. ‘There is,’ says Senator Hoar, of Massachusetts, ‘no more touching story of the munificence and bounty of one people to another than that of Virginia to Massachusetts when the port of Boston was shut up by Act of Parliament and by a hostile English fleet. * * * * * Little had happened which bore hardly upon Virginia. * * There was no personal suffering here. It was only the love of liberty that inspired the generous people of the Old Dominion to stand by Massachusetts. * * * * * * But saving, therefore, my allegiance to her (Massachusetts), I affirm without hesitation that the history of no other civilized community on earth, of like numbers, since Athens, for a like period, can be compared with that of Virginia from 1765 or 1770 down to 1825. What her gallant soldier, Henry Lee, said of her most illustrious son may well be said of her: First in War, first in Peace. * * * The list of her great names of that wonderful period is like a catalogue of the fixed stars. For all time, the American youth who would learn the principles of liberty protected by law; who would learn how to frame constitutions and statutes; who would seek models of the character of the patriot, of the statesman, of the gentleman, of the soldier, may seek instruction from her,—may study her history as in a great university.’ And elsewhere, in commenting upon the cession of her northwestern territory to the Union in 1784, he says in a similar vein: ‘The cession of Virginia was the most marked instance of a large and generous self-denial.’

“I never,” said Webster, in one of his last great speeches in the Senate, ‘reflect upon it without a disposition to do honor and [54] justice, and justice would be the highest honor, to Virginia, for the cession of her northwestern territory. I will say, sir, it is one of her fairest claims to the respect and gratitude of the country, and that perhaps it is only second to that other claim which belongs to her; that from her counsels and from the intelligence and patriotism of her leading statesmen, proceeded the first idea put into practice of the formation of a general Constitution of the United States.’ And on another occasion, in the same place. ‘* * I here acknowledge the Commonwealth of Virginia to be entitled to the honor of commencing the work of establishing this Constitution. The honor is hers; let her enjoy it; let her forever wear it proudly;——.’

“Nor should it be forgotten,” says Blaine, ‘that the State of Virginia might well be regarded as the creditor, and not as the debtor of the National Government. One of her earliest acts of patriotism as an independent5 State was the cession to the General Government of her superb domain on the north side of the Ohio river, from the sale of which more than $100,000,000 have been paid into the National Treasury. * * * It may surely be pardoned if Americans shall feel a deep personal interest in the good name and good fortune of a State so closely identified with the early renown of the Republic—a State with whose soil is mingled the dust of those to whom all States and all generations are debtors—the Father of his country, the author of the Declaration of Independence, the chief projector of the National Constitution.’

“Perhaps the only thing,” says Fiske, ‘that kept the Union from falling to pieces in 1786 was the Northwestern territory, which George Rogers Clarke had conquered in 1779, and which skilful diplomacy had enabled us to keep when the treaty was drawn up in 1782.’ And again, in reference to the gift by Virginia of this territory to the United States for the common benefit of all. ‘—— Virginia gave up a magnificent and princely territory of which she was actually in possession. She might have held back and made endless trouble, just as, at the beginning of the Revolution she might have refused to make common cause with Massachusetts; but in both instances her leading statesmen showed a far-sighted wisdom, and a [55] breadth of patriotism for which no words of praise can be too strong.’

‘In the making of the government under which we live,’ says the same writer, ‘these five names—Washington, Madison, Hamilton, Jefferson and Marshall—stand before all others.’ Four out of the five, as it is hardly necessary to remind the reader, were Virginians.

But why accumulate testimony? The warmest of partisans could not desire, could not select himself, stronger terms of admiration and gratitude than have been bestowed by those at whose hands this flagrant wrong was suffered, upon the State which was first dismembered, and then—the torn and bleeding fragment that remained—stripped of every vestige of rights, every shadow of freedom, reduced to a ‘geographical expression,’ ticketed like a galley-slave as District No. 1, and placed under absolute military rule, as no other English-speaking community had been for centuries. Judged by what they themselves have admitted, nay, loudly proclaimed, no plea in mitigation is to be found here.

Was she then, lastly, peculiarly responsible for the occurrence of the late war between the States? On the contrary, as is known to all, at every crisis in the country's history her voice had been consistently and earnestly raised for peace. In 1832, when the ground of quarrel was not even nominally slavery, but, as in 1776, purely a question of taxation, she had stood as mediator between the exasperated parties which hung suspended on the verge of strife, and solemnly protested, not then in vain, against an appeal to the bloody arbitrament of arms. In 1850, for the sake of that Union which she had been foremost in founding and preserving, she had acquiesced, though reluctantly and with the gravest misgivings, in measures which were, in her deliberate judgment, not only wrongful, and oppressive in themselves, but in the highest degree injurious to her interests and menacing to her safety. What was her course in 1861? As long as a shadow of hope remained, even indeed, after the last shadow might well have been thought, by an impartial observer, to have vanished, she did not cease, by every means in her power, to ‘seek peace and ensue it.’ She inaugurated a ‘Peace Conference,’ invoking ‘the spirit in which the Constitution was originally formed’ to settle ‘the present unhappy controversy;’ patiently, unweariedly, she labored to avert the impending conflict. The last great effort of her most distinguished contemporary statesman, speaking, as her ambassador and representative, on the floor of the United States' Senate, was an eloquent and forcible appeal [56] to those who alone possessed the power, ‘in the sacred names of humanity and of Christian civilization; in the names of thirty millions of human souls;’ —‘in the name of the great American experiment’ to ‘give time for the play of reason,’ and ‘prevent the effusion of blood.’ Believing fully in the right of secession, and keenly alive to the cogency of the motives impelling the farther Southern States to exercise it, she, nevertheless, forebore to join them, and still, hoping against hope, persisted in spite of every discouragement, in earnest efforts for peace and reconciliation until President Lincoln's proclamation demanding troops for the invasion of the seceding States appeared, and the choice was abruptly presented to her of fighting either for her convictions or against them. These were the alternatives; other course, middle ground there was none.

Her construction of the Constitution was known of all men; it had been embodied in her ratification of that instrument; it had been solemnly reaffirmed by her General Assembly at a momentous crisis in the early history of the Government; it had been formulated and made the corner-stone of a great political party by some of her most illustrious sons. Moreover, it was sustained, not only by individual statesmen and jurists of the greatest eminence at the North, but by resolutions of Northern Legislatures and Conventions, by decisions of Courts, State and Federal, including the highest of all, and by the recorded judgment of the United States Senate, pronounced in solemn form upon two different occasions. As to the views of the framers of the Constitution and founders of the Government themselves, language could not be stronger or more comprehensive than that of Senator Lodge, of Massachusetts. ‘When,’ says he, ‘the Constitution was adopted by the votes of States at Philadelphia, and accepted by the votes of States in popular conventions, it is safe to say that there was not a man in the country, from Washington and Hamilton, on the one side, to George Clinton and George Mason, on the other, who regarded the new system as anything but an experiment entered upon by the States, and from which each and every State had the right peaceably to withdraw, a right which was very likely to be exercised.’ Speaking to the same effect, Woodrow Wilson declares that ‘the men of that time would certainly have laughed at any such idea’ as that of ‘a national government’ constituting ‘an indestructible bond of union for the States.’ ExPresi-dent Adams, in an address delivered in 1839, said that should alienation of feeling take place, it would be far better ‘for the people of [57] the dis-United States to part in friendship from each other than to be held together by constraint.’ ‘Then,’ said he, ‘will be the time for reverting to the precedents which occurred at the formation and adoption of the Constitution, to form again a more perfect Union, by dissolving that which could no longer bind, and to leave the separate parts to be re-united by the law of political gravitation to the centre.’

There must be limits to quotation, or it would be easy to cite utterances of prominent Northern politicians and leading Northern journals down to the very eve of the actual conflict, protesting in the strongest terms against the coercion which Virginia was thus peremtorily called upon to take part in. Coolly and impartially considered, indeed, the doctrine of State-sovereignty will be found, logically speaking, absolutely irrefragable, since sovereignty must of course reside somewhere, and it will be admitted by all that, according to the fundamental principle of American polity, it cannot reside in any government whatsoever, Federal or State, governments, under this system, being viewed as simply the creatures and agents of the people, wholly without original power or authority in themselves. Obviously, then, in the United States, sovereignty resides in the people alone. The sole question remaining is, in what people? This admits of but one answer, since there exists no such body politic as the people of the United States, considered as a single consolidated whole, the conclusive proof being that it has never, as is easy to verify historically, performed one solitary act in that character, and indeed cannot, having no organ through which it could so speak or act. There is no representative body, standing to it in the relation in which a Convention stands to the people of a State, by means of which sovereignty might be exercised, nor is there even any possible mode of taking its sense as a whole. In the United States, therefore, the ultimate seat of sovereignty is to be found in the peoples of the several States, acting as political communities, through such bodies (in the nomenclature of politics called Conventions) as they may empower to act in their name and behalf.

Men are not apt to be cool and logical in a crisis like that which preceded the great conflict of 1861, yet it would seem, whatever their constitutional views, that the dominant party might have better recollected, not only the traditional American doctrine so closely interwoven with the life and history of the country, but the comparatively recent declarations of the man whom they had just placed at the head of the Government. ‘Any people anywhere,’ Mr. Lincoin [58] had said, ‘being inclined, and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can, may revolutionize and make their own of so much of the territory as they inhabit.’ Well might the English historian, Goldwin Smith, in spite of his strong partiality for the North, say of this passage, ‘Southern revolution could not have asked for a clearer sanction.’

Not the Constitution alone, but the whole spirit of the American Revolution, and of the institutions founded on it, was palpably violated and set at naught by the war undertaken against the seceding States. If governments were still to be imposed by force upon reluctant peoples, fitted for freedom, and capable of self-rule, the principles of 1776 were abandoned, and their work nullified. The Declaration of Independence might as well follow the Constitution into the political lumber-room. This was too evident to escape the observation of many even among the party in power at the North, but the old despotic theories, while discarded in name, had sunk deeply into the souls of men. The precedents of century on century had so thoroughly associated the idea of unquestioned power with ‘government,’ and unquestioning submission with ‘governed,’ especially among that large class who,—immigrants themselves or the sons of immigrants,—had not yet shaken off the traditions and influence of the old world, and comprehended very imperfectly, if at all, the complex and highly developed polity under which they lived, that it seemed impossible to disjoin them. Of the one people on earth which possessed a government resting solely upon consent the greater part were so little capable of realizing and acting up to the principles which formed the justification, the very reason for existence, of their institutions, that they blindly destroyed it, and erected on its ruins a successor of the old type, built on the old barbarous foundation of physical force, the ‘right divine,’ of the strongest. It was a distinct and long step backward in the evolution of society, and would hardly have been taken, had the decision depended exclusively upon the descendants of the men of 1776. Should it be alleged that the end which sanctified such means, in the eyes of those employing them, was the swift and certain destruction of slavery, the conclusive answer is to be found in their own repeated and emphatic disavowals [59] of any such design, and in the course which they actually pursued with regard to it.

It is tempting and would be easy, did circumstances allow, to add proof to proof and illustration to illustration, but this is not the place to pursue the subject farther. Strictly speaking, indeed, it is not necessary, for the vindication of Virginia's course, to enter upon the question of right at all. For this purpose it is amply sufficient that the constitutional views which she has consistently supported in the forum and on the field, semper et ubique, were honestly entertained. No mind, not blinded by passion and prejudice to such an extent as to be proof against any force of evidence, could doubt this. The strongest motives that can appeal to the lower and more material side of human nature concurred to impel her to their abandonment. Neither states nor men court martyrdom in defence of opinions insincerely professed, or even laxly and superficially held. So patent was this that it has actually been made a subject of reproach to her by Mr. Blaine. ‘Virginia,’ says he (Twenty Years of Congress, Vol. I, page 301,) ‘could not be restrained though she was warned, and ought to have seen that, if she joined the rebellion, she would inevitably become the battle-ground, and would consign her territory to devastation and her property to destruction.’ Unquestionably, in whatever way the contest on which she was entering might end, it could not but bring to her incalculable loss and suffering. Even if victorious, she must, as a border State, be left in a most exposed and dangerous situation, while a large portion of her property would in any event be lost or rendered utterly insecure.

All this she saw in full prospect before her, yet she ‘could not be restrained’ by any fear of consequences, however certain and terrible, from standing firmly in adversity by the principles she had professed in prosperity. So far Mr. Blaine was right, and he has unconsciously pronounced the highest of eulogies on her conduct. At the ‘parting of the ways’ she did not choose the broad and gently sloping high-road of safety and self-interest, but the narrow and painfully ascending path marked out by duty. She proved herself still the same commonwealth which nearly a century before, in the cause of Massachusetts, had braved the power of Great Britain. When the choice was placed before her, she deliberately elected rather to suffer wrong than to inflict it, to take the incalculably weaker side which she believed to be just rather than the stronger which she believed to be unjust. History records no nobler act of any people. To the latest generation of her children it will descend as a proud [60] memory, and a source of heroic inspiration. Nor will honest and candid adversaries withhold their tribute of hearty admiration, for they can not doubt that she acted strictly in accordance with her conscientious convictions, however widely these may have differed from their own. Whenever there is a failure to recognize the moral grandeur of her attitude, it is simply an instance of ‘the eye seeing in all things what it brought with it, the faculty of seeing,’ and that only. The natural consequence of a complete lack of the heroic element is a lack also of faculty to discern it in others. A more paltry, pitifully ignoble view of a great question than that indicated in the extract from Mr. Blaine given above could hardly be conceived.

The constitutional doctrine supported by Virginia at this crisis had been constantly maintained by her from the date of her accession to the Union downward. To have abandoned it now, the moment her faith was put to a practical test-still more, to have aided in coercing others by force of arms to abandon6 it also-would have left an indelible stain upon the brightest of shields.

It was inconsequence of her refusal to be guilty of this act of baseness, to ‘cry craven’ and desert her flag, when called upon to sustain with the sword the principle she had so long advocated with tongue and pen that she was subjected to an outrage similar to those which have left the foulest blots on the pages of European history, Alone among the States, she, the oldest of them all, the mother of so many of them, who had labored far more than all the rest to avert the conflict, suffered, in the loss of a large portion of her territory, the last calamity of foreign conquest, a calamity inflicted on no new and half-formed community, scarcely conscious as yet of its separate existence, but on an ancient and renowned Commonwealth whose record, even as presented by her enemies, may challenge comparison with that of any society known to us in proportion to numbers and duration as an organized body politic.

Those who, in the energetic language of Burke, ‘think there is nothing worth pursuit but that which they can handle, which they can measure with a two-foot rule; which they can tell upon ten fingers,’ may scoff at the notion of a wound inflicted upon such ‘airy nothing’ as the pride and sensibility of a State, but the narrowest [61] and most stubborn of materialists cannot deny the immense effect produced by her dismemberment upon the financial and industrial prosperity of Virginia, und upon her relative weight and position in the Union. It is easy to bring this to the test of figures.

If the State had remained undivided she would, by the census of 1890, have had 2,418,770 instead of only 1,655,980 inhabitants; $532,350,328 of assessed property instead of only $362,422,741,; fourteen instead of ten members of the House of Representatives, and sixteen instead of twelve votes in the Electoral College. She would have ranked sixth instead of fifteenth in the list of States; her area would have been 67,230 square miles instead of 42,450, and her resources of all kinds, especially mineral and timber, would have been enormously increased, while the negroes—the most objectionable and embarrassing element of her population—would have formed not much more than 25, instead of, as now, nearly 40 per cent. of the whole.

Neverthless, great as they are, to those capable of judging by a different and higher standard, the injuries thus specified will not appear the only, or the greatest wrongs she has suffered. These, indeed, are, in their nature, incapable of such specification; cannot be weighed, or measured, or numbered.

It is, as it seems to us, a radically false and deeply injurious view of the subject which, in the supposed interest of harmony, would soften down, and pare away the truth until so little remains that it is virtually suppressed. Deep wounds need not to be covered up and hidden away, but to be fearlessly probed, and thoroughly exposed to light. History weighing with impartial hand the events and characters of the past would but ill discharge the duty of her high office if she shrank from setting the seal of solemn reprobation upon acts like this. Hers is the court of last resort to which the injured, failing of redress in their lives, should be able to appeal with full security of obtaining at least posthumous justice. The innocent may receive no vindication, the guilty no punishment in life, but, as the ages roll onward, her verdict acts with ever-increasing force to deter from similar offences. Her late, but sure retribution should await the crimes which escape all other earthly penalty, and bearing, as she does, no fleshly weapon, but a sword of far keener edge and wider sweep, it deeply concerns the future of mankind that she bear it not in vain.

“None,” says a statesman of the deepest insight into the nature of man and of society, ‘can aspire to act greatly but those who are of force greatly to suffer,’—a profound and pregnant saying, the truth [62] of which will be most fully realized by those to whom, as to Virginians, it has come, ‘borne,’ in very deed, ‘with bier and pall.’

Yet in spite of an experience so bitter, true sons of the stricken commonwealth will say of her, as was said of Athens, in language the noble simplicity of which touches and thrills us, even now, through the veil of translation, and after the lapse of more than twenty centuries, with something of the feeling it must have inspired in its hearers, ‘I affirm that if the future had been apparent to us all * * * nevertheless the State ought not to have deviated from her course, if she had regard to her own honor, the traditions of the past, or the judgment of posterity.’

‘No heroic sacrifice is ever lost; the characters of men are moulded and inspired by what their fathers have done—treasured up are all the unconscious influences of good deeds. It was such an influence that led a young Greek to exclaim, two thousand years ago, when he heard the news from Marathon: “The trophies of Miltiades will not let me sleep!” ’

1 The words ‘authority,’ ‘policy,’ ‘necessity,’ are italicised in this. paragraph in order to call attention to the kind of arguments, or rather pretexts, it was found necessary to resort to, for the purpose of excusing so direct a breach of the Constitution.

2 The words ‘authority,’ ‘policy,’ ‘necessity,’ are italicised in this. paragraph in order to call attention to the kind of arguments, or rather pretexts, it was found necessary to resort to, for the purpose of excusing so direct a breach of the Constitution.

3 The words ‘authority,’ ‘policy,’ ‘necessity,’ are italicised in this. paragraph in order to call attention to the kind of arguments, or rather pretexts, it was found necessary to resort to, for the purpose of excusing so direct a breach of the Constitution.

4 With regard to this assumption of the name of ‘Unionists’ by those whose whole course tended constantly to the destruction of the real Union framed by the founders of the government, the following sentence from Mr. Calhoun's last great speech in the Senate will be found strikingly just and appropriate: ‘But surely, that can with no propriety of language be called a Union, when the only means by which the weaker is held connected with the stronger portion, is force.’

5 Note the admission marked by the word ‘independent’ italicised here, and compare the utterances of Mr. Blaine himself elsewhere, and those of others belonging to the same political school, especially the extraordinary misstatements of notorious historical facts contained in Mr. Motley's letter to the London Times in 1861.

6 The word ‘abandon’ is of course used here only in reference to the immediate practical application of the doctrine in question. To refrain or desist from putting a doctrine in practice on a particular occasion is one thing; to renounce the doctrine itself quite another. Force may indeed restrain from the exercise of a right, but further than this it cannot affect it.

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