The Journal of Negro History, Volume 6, 1921

That this prophetic message from the Intelligencer reflected the opinion of the people of Western Virginia and the state of mind of the Congress, was clearly shown by subsequent events. On the nineteenth day of the Convention an adroit attempt was made to have West Virginia become a slave State.200 Thomas Harrison, of Harrison county, offered a resolution providing that the making of a new constitution be dispensed with for the present, and that the Virginia Constitution be referred to a Committee of Five with instructions to modify it to suit the needs of the proposed new State. Significant among the provisions of the Virginia Constitution was one altered at the Richmond Secession Convention to the effect that the General Assembly should have power to prohibit the future emancipation of slaves. By its provisions, therefore, the slave could never become free during his residence in the State. On motion of Mr. Van Winkle, the Convention voted that action on the resolution be indefinitely postponed.201

Battelle, persistent in his efforts to make some provision in reference to the freedom of the slaves, decided to submit emancipation to the people. Accordingly, therefore, on the twelfth of February, 1862, he offered the following:202

(1) "Resolved. That at the same time when this Constitution is submitted to the qualified voters of the proposed new state to be voted for or against, an additional section to article–, in the words following: 'No slave shall be brought or free person of color come into this state for permanent residence after this constitution goes into operation, and all children, born of slave mothers after the year 1870 shall be free, the males at the age of twenty-eight years, and the females at the age of eighteen years; and the children of such females shall be free at birth'. Shall be separately submitted to the qualified voters of the proposed new state for their adoption or rejection, and if the majority of the votes cast for and against said additional section are in favor of its adoption, it shall be made a part of article—of this constitution and not otherwise."

(2) "Resolved that the committee on schedule be and they are hereby instructed to report the necessary provisions for carrying the foregoing resolution into effect."

Mr. Sinsel moved that the resolutions be made the order of the next morning at ten o'clock; Mr. Hall, of Marion county, moved to amend the motion to the effect that it be laid on the table. Mr. Battelle deplored the application of the gag rule. The question not being a debatable one, the vote was taken. By a majority of one vote of the forty-seven cast, the resolutions were indefinitely laid on the table.203

On the thirteenth day of February, after the disposition of other important business, Mr. Pomeroy, of Hancock county, suggested that the questions raised by the resolutions offered the day before by Mr. Battelle might be compromised, either by adopting one of the propositions already presented, or by referring the whole matter to a representative committee of conference. Many members of the convention shared the views of Mr. Pomeroy and so stated their convictions to the body. Indeed they favored the settlement of the question then and there, without reference to a committee. Mr. Hall, of Marion, was of the opinion that its reference to a committee might carry abroad the idea that a division existed there; that that which was done, was accomplished only through a committee of compromise. Mr. Hervey was convinced that the new State must be a free State and therefore desired to vote the proposition as it stood, without the committee. Mr. Dille was of the opinion that there would be no objection to a constitutional provision forbidding the entrance into the State for permanent residence, of free Negroes or slaves, after the adoption of the Constitution. Mr. Brown, of Kanawha, sustained the view of Mr. Dille. Mr. Pomeroy made a motion to the effect that the first clause of Mr. Battelle's resolution be acted upon by the body. Mr. Battelle favored the reference of the question to a committee, thus opposing a vote that morning because he had assured a colleague of the opposite side that the question would not be brought up that morning and he wanted that all the proponents and opponents of the measure be present at the taking of the vote.

Mr. Stewart, of Doddridge, the gentleman to whom Mr. Battelle referred, having just entered, stated that he understood the motion before the House to be a compromise measure that would settle the question. Thereupon, Mr. Battelle served notice that while he would support the pending motion, he had entered into no compromise. It was his plan, therefore, to prosecute the case before the public forum. The question was put and it was agreed with one dissenting vote that there should be incorporated into the Constitution the first clause of Mr. Battelle's resolution; namely: "No slave shall be brought or free person of color come into this State for permanent residence after this constitution goes into effect."204

On the third day of April the vote on the question of the adoption of the constitution was taken; 18,862 votes were cast for adoption and 514 for rejection. A significant incident to the general election was the informal vote taken, at the suggestion of The Wheeling Intelligencer, on Mr. Battelle's emancipation proposition which had been rejected by the Convention. Despite the irregular and unauthorized manner in which this was done, by the several counties holding such extra election, the count showed that six thousand votes were cast for emancipation and six hundred against.205 It is not improbable, therefore, that the constitution would have been adopted without difficulty had the emancipation clause been included. The politicians and not the people were on the wrong side of the issue.

Pursuant to the call of the Governor, the general assembly met in its second extra session on the sixth of May.206 On the thirteenth day of the same month it passed "An Act giving the assent of the Legislature of Virginia to the Formation of and Erection of a New State within the jurisdiction of this State."207 Everything was now in readiness for the presentation of documents and credentials to Congress, by the proposed new State, in support of its application for admission into the Union.

Prior to this Mr. Battelle, in pursuance of his earnest efforts to make the proposed new State free, had prepared a masterly address on the subject of the emancipation of the slaves, to be delivered in convention to his colleagues. The sense of the convention was such that the courageous gentleman was unable to engage its attention for that purpose. Accordingly, therefore, he had printed in pamphlet form the address that he intended to deliver, and distributed it throughout the counties of Northwestern Virginia. Among the salient points therein set forth the following are noteworthy: first, that since the institution of slavery as it existed within the bounds of Western Virginia was the mere creature of law, the law was competent to remove it; and that, therefore, it was fairly and properly a subject for the consideration of those in convention assembled; second, that the gradual emancipation of the slaves was both fundamental and vital to the success of the new State, and in consequence thereof the question should be settled in the organic law. Mr. Battelle discussed the question from two points of view, that of principle, and that of expediency. It was developed that the principle of slavery was wrong and that the system, therefore, should be abolished. "While discrimination must be made between the system and the acts of individuals, the former," he said, "is always bad, is always inconsistent with the obvious requirements of either justice or morals."208

Considering the proposition in the light of expediency, the question was asked: "What do the best interests of the people of West Virginia require from the persons assembled to frame the organic law?" In reply thereto there was developed the theme that labor was fundamental to the material prosperity of the commonwealth; that slave labor and free had always been and would doubtless always be unharmonious and inconsistent in purpose. Since slave labor, it was pointed out, was competent to perform only the crudest work and most menial tasks, it followed that free labor was indispensable to the material progress of the new State. "Slave labor," Battelle said, "drove out free labor and tended to make all labor undignified and despised. It should, therefore, be dispensed with." In reply to the assertion that since the system was destined to die a quick and certain death no action on the part of the State was necessary, Mr. Battelle urged that "if that be true, it furnished an additional reason for the incorporation into the constitution of a provision terminating slavery." "Such action would be but just to all parties—to both the proponents and the opponents of the present system." The argument closed with an exposition, first, on slavery as the fundamental cause of the then current distress in Virginia and in the nation; and second, on the propriety of such an act at that particular time. This argument doubtless had an unexpected effect in preparing the minds of the people of the State for the acceptance of the plan of gradual emancipation, the condition on which West Virginia was finally admitted.209

Slavery and the Admission of West Virginia

Waitman T. Willey, a member of the Senate from Virginia, having obtained the permission of that body to do so, presented on May 29th a certified original of the constitution together with a copy of an Act of the General Assembly of Virginia, of May 13, 1862, under the Restored Government, giving its permission for the formation of a new State within the commonwealth of Virginia. He presented at the same time the memorial of the General Assembly requesting Congress to admit the State of West Virginia into the Union. Following the receipt of these documents they were referred to the Committee on Territories, of which B. F. Wade, of Ohio, was the Chairman.210

On the twenty-third of June Senate Bill No. 365 providing for "the admission of the State of West Virginia into the Union" was reported, read and passed to a second reading.211 On the twenty-sixth day of June, on motion of Mr. Wade, the bill was taken up for immediate consideration in a committee of the whole. The bill proposed to admit West Virginia into the Union on equal footing with the original States in all respects whatever, subject, among other conditions, to the following: "That the convention thereinafter provided for shall in the constitution to be framed by it, make provision that from and after the fourth day of July, 1863, the children of all slaves born within the limits of the said State shall be free."212

Following the action noted, Mr. Sumner, Senator from Massachusetts, quoted that provision of the bill relating to the emancipation of slaves and raised the following objections, namely: (1) that by the passage of the bill a new slave State would be admitted into the Union and (2) that the existing generation of slaves would remain such throughout the course of their lives. He was unalterably opposed to the measure so long as it contained these features; and he, therefore, sought to remove them by means of the same policy that Jefferson applied to the territories of the Northwest. Accordingly, he offered an amendment to the effect "that the convention hereinafter provided for, in the Constitution to be framed by it, make provision that from and after the fourth day of July, 1863, within the limits of said State, there shall be neither slavery nor involuntary servitude otherwise than in the punishment of crime, whereof the party shall be duly convicted."213 A vote on the amendment was requested and ordered but not then taken.

Dissatisfied with the purport of the proposed amendment, Senator Willey expressed his intention to amend the same; whereupon the presiding officer of the Senate proposed that he offer an amendment to the bill rather than to the proposed amendment of Senator Sumner. In the meanwhile, Mr. Hale, of New Hampshire, a member of the committee that framed the bill, affirmed his intention to sustain it. His remarks were suspended by order of the chair for the purpose of considering another matter which had priority to the one then being discussed.

On the motion of Senator Willey the bill was again considered on the first day of July, the question pending being the amendment of Mr. Sumner.214 In support thereof, Mr. Sumner asserted that from statistics of Mr. Willey it appeared that twelve thousand bondsmen in Western Virginia were doomed to continue as such for the remainder of their lives, and that consequently the Senate must, for a generation, be afflicted with two additional slave-holding members. He quoted from Webster's speech of December 22, 1845, on the admission of Texas into the Union and rested his case on its arguments. Briefly stated, Mr. Webster opposed the admission of other States into the Union as slave States, and at the same time granting to them the inequalities arising from the mode of apportioning representation to Congress, as granted by the Constitution to the original slave-holding States. He held that the free States have the right to demand the abolition of slavery by a commonwealth seeking admission with a slave-holding constitution.215

During the continuation of the debate, Mr. Hale asserted that Mr. Webster abandoned the position just attributed to him when in 1850 he voted against any restrictions upon any territory coming into the Union with a slave-holding constitution and when he voted exclusively against applying the "Wilmot Proviso" to these States. Mr. Hale added tersely that since Congress had consistently admitted States with slave-holding constitutions providing for perpetual slavery, it would be the merest folly to refuse to admit the first State whose constitution provided for gradual emancipation.216

A new issue was injected into the debate when Mr. Collamer, of Vermont, while reviewing what is implied in being a sovereign State and a State in the Union, argued that the imposition by Congress of any condition precedent to the entrance, whether or not that condition be the abolition of slavery, is an unwarranted interference with the internal affairs of that State. Under such circumstances the proposed new State would not come into the Union on equal footing with other States. He did not wish, however, to be understood as saying that he would not vote against a State desiring to come in as a perpetual slave-holding State; but he failed to see the wisdom or justice in making the abolition of slavery a condition precedent to entrance. On the other hand, he saw no difference, in principle, between the provision in the bill as reported and the amendment offered by Mr. Sumner, since both of them failed to reflect the will of the Convention that framed the State's constitution.217

Thereupon Mr. Willey announced that he would offer the following amendment: "That after the fourth day of July, 1863, the children born of slave mothers within the limits of the said State shall be free, and that no law shall be passed by the said State by which any citizen of either of the States of this Union shall be excluded from the enjoyment of the privileges and immunities to which such citizen is entitled under the Constitution of the United States; provided that the convention that ordained the constitution aforesaid, to be reconvened in the manner prescribed in the schedule thereto annexed, shall by a solemn public ordinance declare the assent of the said State to the said fundamental condition, and shall transmit to the President of the United States on or before the 15th of November, 1862, an authentic copy of the said ordinance; upon receipt whereof the President by proclamation shall announce the fact; whereupon and without any further procedure on the part of Congress the admission of the said State into the Union shall be considered as complete."218

Throughout the debate that followed there were found many supporters of the program of gradual emancipation for the proposed new State. Chairman Wade, of the Committee of Territories, made thereupon the following important remarks: (1) that the proposed new State had voluntarily fixed the marks of extermination of the institution of slavery; (2) that the principal men of the commonwealth had told him that the first legislature to convene would do away with the whole institution, as fast as the nature of the case would permit; (3) that he believed the efforts of West Virginia were constitutional; (4) that it was just and expedient to admit her; (5) that he did not favor the inclusion in the commonwealth of the pro-slavery counties of the Valley; (6) that he did not want a provision saying that a person born one day should be a slave forever, and that one born the next day should be free; and finally (7) that he would like to see an amendment, providing that "all children who, at the time this constitution takes effect, are fifteen or sixteen years of age, shall be free upon arriving at the age of twenty-one or thirty-five years," i.e., a provision for gradual emancipation that will enable some of those born before as well as all of those born July fourth, 1863, to obtain their freedom.219

Mr. Fessenden, of Maine, prefacing his remarks with the statement that he had not examined the question, proceeded to make the following observations: (1) that he wished to be assured that the State could be admitted constitutionally; (2) that considering the position of the State, the feeling of the people about the matter, the small number of slaves there at the present time, he believed it not only the duty, but the entire right of the body (Congress) to prescribe before the State comes in that she shall put herself in a proper and irreversible position on the subject of the gradual abolition of slavery; (3) that when a definite and fixed date is given for the termination of slavery, the State becomes in point of fact a free State; (4) that he was glad to know (according to Mr. Wade) that the people of West Virginia concurred in opinion with the principles sponsored by himself; and (5) that the interests of the State itself and those of all of the States in the Union demanded an irreversible agreement on the whole matter.220 Further consideration of the bill was then postponed.

Shortly after an unsuccessful attempt on the part of Mr. Willey to have the consideration of the bill continue,221 it was brought up again on the fourteenth of July by Senator Wade. The pending question was the amendment of Mr. Sumner. The vote was taken and the amendment was rejected.222 Mr. Willey then offered the amendment already herein noted. He was followed by Mr. Wade, who, expecting the State to be admitted, if at all, under the amendment of Mr. Willey, moved to amend the amendment by inserting at the proper place the words: "And that all slaves within the State who shall at the aforesaid time be under twenty-one years, shall be free when they arrive at the age of twenty-one years."223 Despite the anti-slavery principle here involved, Mr. Wade was convinced that some provision was necessary to facilitate the running of the bill in the Senate and in the House. He thought, too, that the harshness and abruptness of the bill would be thereby smoothed down, softened and rendered harmonious.224

It was no easy task, however, that the Senator from Ohio had essayed to accomplish. His proposal brought from Mr. Willey the personal conviction of the man. Mr. Willey preferred that the State be admitted under the constitution precisely as submitted by the people. That not being possible, he wished that his amendment (which was not to his personal tastes) be carried. He deplored the situation that would follow should the amendment of Mr. Wade be passed. He pointed out: (1) that the majority of slaves were in counties contiguous to what would be the borders of the old State of Virginia; (2) that many of them ranged in age from one to twenty-one years; (3) that when they should arrive at a convenient age for sale, they would be silently transferred across the border into Kentucky or Virginia or the further South, if needs be, and there sold into the cotton fields of the South or the tobacco plantations of the East, where slavery was admittedly at its worst; (4) that many of the slaves were females, the offspring of whom would be free, were the mothers allowed to remain in the State, but upon the passage of the amendment even those would be doomed to the perpetual slavery of the far South. Replying to an inquiry made by Mr. Lane, of Kansas, as to whether or not public sentiment would condone such action, he asked if public sentiment would be likely to influence those slave owners who lived in territory contiguous to Virginia. The loyalty and fidelity of West Virginia should, in Mr. Willey's opinion, guarantee the safe manner in which the commonwealth would handle the question. Never before in similar situations, he argued, had slaves in esse been freed; freedom extended only to those unborn at the passage of the constitution or to those born on or after a date therein designated.225

Again joining issue with Senator Willey, Mr. Lane pointed out that the same situation arose in Kansas when in February, 1856, the people adopted a constitution providing for the emancipation of the slaves on the fourth of the following July. The slaves, however, handled the situation. They told their masters that since they should become free after the date designated, they would not permit themselves to be taken out of the State prior to that date.226 Mr. Lane did not doubt the capacity to do likewise on the part of the slaves then being considered.

An interesting spectacle presented itself when the two Senators from Virginia engaged in spirited debate. Mr. Carlile desired that the State be admitted under the terms of the constitution framed at Wheeling, the alternative being that the people of the State should have the new terms submitted to them for approval. He believed that Mr. Willey's amendment was incomplete as it stood, and that an amendment in conformity with the one presented by Mr. Wade was necessary, providing, of course, that it was the sense of the Senate to admit the State only upon conditions. He took issue with Mr. Willey's assertion that the passage of Mr. Wade's amendment would be followed by a wholesale delivery of slaves to purchasers further South.227 In the meanwhile Mr. Wade's amendment was agreed to.

Mr. Carlile now began overtly his campaign of obstruction and opposition to the admission of the State into the Union. He offered as an amendment to that of his colleague to be inserted at the end of the sixteenth line, the following words: "After the said ordinance shall be submitted to the vote of the people in the said State of West Virginia and be ratified by the vote of the majority of the people thereof." The sinister motive underlying his proposal was clearly perceived and ably met by Mr. Willey. He opposed the measure: first, because of the unusual requirement of the majority vote of the people, and, second, because of the new convention that would be required to assent to the fundamental proposition, and the consequent new election and additional costs to the people. The constitutional convention, he argued, was still in existence, was still a legal body, and that, therefore, there was no sufficient reason for the reference of the matter beyond the jurisdiction thereof.228

Dissatisfied but not discouraged, Mr. Carlile explained away the objection to the words "majority of the people." He maintained, however, that the changes contemplated would affect the fundamental law and that they should, therefore, be ratified by the people subsequent to being assented to by the Convention. It was, he argued, a departure from and in derogation of the customs and ideas of Virginia to change the organic law without first submitting the proposed new law to the people. Setting forth more clearly his position on the whole matter Carlile said: "Supposing—as I suppose, I will see when I move this test amendment, which I shall, to this proposition—that the Senate is unwilling to admit us without conditions, I shall vote against any bill, if it is pressed, exacting conditions, for the purpose of going home to my people asking them to assemble a Convention between this and the first Monday in December, and act upon the suggestion which we have received here from the Senate, if they desire to do so and come here with a constitution that will enable Congress, without such arbitrary stretch of power to admit us at once without delay."229