Was West Virginia Secession Legal?

[frenger]

The Section 3 of teh Artivle 4 of the constitution states that:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Since the Virginia legislature never gave it's consent, is West Virginia actually an illegal state?

[ilikeverin]

Yes, it's legal.  Somehow.

[??????????]

The Section 3 of teh Artivle 4 of the constitution states that:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Since the Virginia legislature never gave it's consent, is West Virginia actually an illegal state?

No, it is not constitutional. Lincoln did not recognize the southern states as ever seceding therefore the creation of WVA was unconstitutional.

[frenger]

The Section 3 of teh Artivle 4 of the constitution states that:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Since the Virginia legislature never gave it's consent, is West Virginia actually an illegal state?

No, it is not constitutional. Lincoln did not recognize the southern states as ever seceding therefore the creation of WVA was unconstitutional.

I meant secesion from Virginia.

[frenger]

Oh, nvm.

[Harry]

Hmmm, VA wasn't trying to be a part of the US, didn't consider itself to be part of the US.  So it seems legit to me.

[??????????]

Hmmm, VA wasn't trying to be a part of the US, didn't consider itself to be part of the US.  So it seems legit to me.

But Lincoln and the federal government never considered any southern state to have left. Thats why 35 stars were kept on the flag.

[jimrtex]

Since the Virginia legislature never gave it's consent, is West Virginia actually an illegal state?

See STATE OF VIRGINIA v. STATE OF WEST VIRGINIA, 78 U.S. 39 (1870)

"A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called 'ordinance of secession' to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles-'the Pierpont government'- and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia."

This true government of Virginia then granted the right the people of the western part to form a new state.  The people in the western areas held a convention to produce a constitution which was subsequently ratified in a referendum.  Virginia again gave permission as did Congress, and West joined the Union in 1863.

The particular issue in the above court case was not over the legality of the formation of West Virginia per se, but rather over the transfer of additional territory (Jefferson and Berkeley counties in the Harper's Ferry area).

[??????????]

Since the Virginia legislature never gave it's consent, is West Virginia actually an illegal state?

See STATE OF VIRGINIA v. STATE OF WEST VIRGINIA, 78 U.S. 39 (1870)

"A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called 'ordinance of secession' to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles-'the Pierpont government'- and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia."

This true government of Virginia then granted the right the people of the western part to form a new state.  The people in the western areas held a convention to produce a constitution which was subsequently ratified in a referendum.  Virginia again gave permission as did Congress, and West joined the Union in 1863.

The particular issue in the above court case was not over the legality of the formation of West Virginia per se, but rather over the transfer of additional territory (Jefferson and Berkeley counties in the Harper's Ferry area).

Was that a civil war Virginia Legislature or post war that gave permission? I don't recognize the legality of a civil war state legislature in which the federal government had its hands in.

[jimrtex]

Was that a civil war Virginia Legislature or post war that gave permission? I don't recognize the legality of a civil war state legislature in which the federal government had its hands in.

You weren't in the Congress at the time, so whether you recognize the legislature's action is moot.

An issue in the court case was that the 1866 Virginia legislature had repealed legislation passed by the 1862 Viriginia legislature that had authorized a referendum in Jefferson and Berkeley counties to tranfer them between the States, and whether Congress had also endorsed the action.

There was not an issue whether the legislature could pass the legislation in 1862, or repeal it in 1866, but only whether Congress had formally recognized the 1862 action.

[PBrunsel]

Depends, if you think secession is legal, then yes it was legal. If you think secession is illegal, than the answer is no.

It just depends on you interpretation of the Constitution.

[jimrtex]

Depends, if you think secession is legal, then yes it was legal. If you think secession is illegal, than the answer is no.

It just depends on you interpretation of the Constitution.

If secession was illegal, then the "legislature" in Richmond was an insurrectionist cabal, and the people in the areas of Virginia not under rebel military control had a right to form a goverment and seek federal intervention under terms of Article IV Section 4.  

The newly organized legislature elected senators, and certainly had the right to determine whether a new state could be formed in its territory.  It doesn't matter if this area was the one that most of them came from.   When Maine split off from Massachusetts in 1820, it represented 36% of the population and this would grow to 40% before immigration and industrialization came to Massachusets in a big way.  Clearly the legislators from the district of Maine in the Massachusetts legislature would be able to participate in the decision to release Maine.

If secession was legal, then there has be an underlying principle of popular sovereignty, which means if the people of Virginia had the right to form a new government and ally itself with the confederacy, then the people in other areas had the right to form a new government and ally itself with the Union.  So while the secessionists may not recognize the manner in which West Virginia was formed, they must accept that it was the right of the people of that area to form a new government.

[Vasall des Midas]

Since the Virginia legislature never gave it's consent, is West Virginia actually an illegal state?

See STATE OF VIRGINIA v. STATE OF WEST VIRGINIA, 78 U.S. 39 (1870)

"A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called 'ordinance of secession' to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles-'the Pierpont government'- and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia."

This true government of Virginia then granted the right the people of the western part to form a new state.  The people in the western areas held a convention to produce a constitution which was subsequently ratified in a referendum.  Virginia again gave permission as did Congress, and West joined the Union in 1863.

The particular issue in the above court case was not over the legality of the formation of West Virginia per se, but rather over the transfer of additional territory (Jefferson and Berkeley counties in the Harper's Ferry area).

Was that a civil war Virginia Legislature or post war that gave permission? I don't recognize the legality of a civil war state legislature in which the federal government had its hands in.

A civil war legislature. Consisting of those Legislators who hadn't joined the secession.

[jimrtex]

A civil war legislature. Consisting of those Legislators who hadn't joined the secession.

After the western delegates had opposed secession, they met in Wheeling and declared the ordinance of secession was an illegal attempt to overthrow the federal government.  A second conventin in Wheeling  pronounced the Richmond government void, and decided to establish a restored government with new officers.  Congress recognized this as the legitimate government of Virginia.

[Vasall des Midas]

A civil war legislature. Consisting of those Legislators who hadn't joined the secession.

After the western delegates had opposed secession, they met in Wheeling and declared the ordinance of secession was an illegal attempt to overthrow the federal government.

They did have a point.

[??????????]

Since the Virginia legislature never gave it's consent, is West Virginia actually an illegal state?

See STATE OF VIRGINIA v. STATE OF WEST VIRGINIA, 78 U.S. 39 (1870)

"A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called 'ordinance of secession' to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles-'the Pierpont government'- and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia."

This true government of Virginia then granted the right the people of the western part to form a new state.  The people in the western areas held a convention to produce a constitution which was subsequently ratified in a referendum.  Virginia again gave permission as did Congress, and West joined the Union in 1863.

The particular issue in the above court case was not over the legality of the formation of West Virginia per se, but rather over the transfer of additional territory (Jefferson and Berkeley counties in the Harper's Ferry area).

Was that a civil war Virginia Legislature or post war that gave permission? I don't recognize the legality of a civil war state legislature in which the federal government had its hands in.

A civil war legislature. Consisting of those Legislators who hadn't joined the secession.

Ok, so legally it was a illegitamite legislature, thus making the creation of WVA unconstitutional. No government was trying to be overthrown. The states were using their right to secession (a right which is still held today).

[Bandit3 the Worker]

Since the Virginia legislature never gave it's consent,

It did. The real legislature met in Wheeling, not Richmond, and this legislature approved the formation of West Virginia.

[True Federalist]

We've had at least one previous thread on this question.  Since this thread has brought up all of the relevant issues, Iand I don't feel like looking up the old thread, I'll just repeat here what I said there.  While irregular, the creations of West Virginia met all the legal requirements.

[??????????]

We've had at least one previous thread on this question.  Since this thread has brought up all of the relevant issues, Iand I don't feel like looking up the old thread, I'll just repeat here what I said there.  While irregular, the creations of West Virginia met all the legal requirements.

The civil war Virginia Legislature was a fraud and illegitimate.

[jimrtex]

We've had at least one previous thread on this question.  Since this thread has brought up all of the relevant issues, Iand I don't feel like looking up the old thread, I'll just repeat here what I said there.  While irregular, the creations of West Virginia met all the legal requirements.

The only irregularity was that the rebels may have prevented elections from occuring in the eastern part of the state, or if they were elected, from reaching the capital in Wheeling, Virginia.

[jimrtex]

Ok, so legally it was a illegitamite legislature, thus making the creation of WVA unconstitutional. No government was trying to be overthrown. The states were using their right to secession (a right which is still held today).

The legislature was elected by the citizens of Virginia.  Some citizens chose not to participate in the election, and others may have been prevented from voting by insurrectionists.  That does not delegitimize that legislature nor its actions.

[Vasall des Midas]

Ok, so legally it was a illegitamite legislature, thus making the creation of WVA unconstitutional. No government was trying to be overthrown. The states were using their right to secession (a right which is still held today).

The legislature was elected by the citizens of Virginia.  Some citizens chose not to participate in the election, and others may have been prevented from voting by insurrectionists.  That does not delegitimize that legislature nor its actions.

But if the secessionist Va. legislature was also elected, earlier, then where's the need fo new elections if you acknowledge (as these guys of course did not, and as I don't, but as States does) the legitimacy of the secession? That seems to be the root of the problem here.

[jimrtex]

But if the secessionist Va. legislature was also elected, earlier, then where's the need fo new elections if you acknowledge (as these guys of course did not, and as I don't, but as States does) the legitimacy of the secession? That seems to be the root of the problem here.

As far as I can figure out from the web, the legislature called for a convention after Lincoln election in November, 1860.  The convention met in February and was still meeting in April when Fort Sumter happened, which triggered the convention to pass an ordinance of secession (88:55) subject to subsequent ratification by the people.

When the time western Virginian got around to forming the restored government, they declared that the legislature would be formed by those elected on May 23, which is the same date as the secession referendum.  So either there was a regular election at the time of the referendum, or a special election was held coincident to it.  Given that the secessionists claimed that a right to secede was a reserved right of the people (not the state), then arguably the people in the western part of Virginia had a right to create a government that remained within the Union.  If secession was legal, then formation of the Wheeling government was also legal.

Further, the resolutions of Wheeling convention suggest that the manner in which the purported secession was effected was invalid.  They claim that the legislature did not have a right to call a convention, but only the right to call a referendum on having a convention; and that government between the time of the convention's resolution and the referendum had acted as if the referendum had passed, violating the right of the people solely to determine the question of secession.  So even if Virginia could secede, it didn't, and those acting on the basis of a secession, had no right to do so.

[Dr. Cynic]

I would have to say it became legal the moment VA seceeded from the Union. WVA wanted to stay. It seems legit to me.

[??????????]

I would have to say it became legal the moment VA seceeded from the Union. WVA wanted to stay. It seems legit to me.

But Lincoln said the Southern states never left the union. Meaning that the laws of the constitution still applied to them. Of course you would deny that secession is legal Lewis because it's to easy to look over New Englands threats to secede, Daniel Webster preaching the right of secesssion and West Point teaching the right of state secession up until 1861.