WVA creation was a war measure. 30,000 voters created WVA from its parent 1.5 million VA population, 6 counties did not vote at all but where palced in it by virtue of being occupied by the US military and included in WVA.
Lincoln, in direct violation of the U.S. Constitution, sanctioned the carving out of an entire section of Virginia to form the "State of West Virginia.", as a war measure, NOT as in acordance with Constitutional norms. According to the Constitution, "...No new State 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." In order to circumvent this obstacle, ie there being no leagal legislature represented in Congress of the State of VA, a government of "Virginia" was established in Wheeling under Lincoln's guidance with Francis H. Pierpoint acting as "Governor," through an act of secession ordinances, over and against the true State government which already existed at Richmond. The new government then proceeded to give its "consent" to the division of the State, to which Congress assented. Thus, "by assuming the consent of Virginia, which could only be asserted as a technical fact, the makers of the new state offered a kind of sophistry to excuse the non-fulfillment of a constitutional obligation...." The congressional debates on this matter, especially the comments made by Republicans, are most revealing of the prevailing mindset which justified this unconstitutional action. Speaking on the proposed Act of Congress to admit the new "State" to the Union, Thaddeus Stevens stated in the House of Representatives:
I do not wish to be understood as sharing the delusion that we are admitting West Virginia in pursuance of any provision of the Constitution. I can find no provision justifying it, and the argument in favor of it originates with those who either honestly entertain an erroneous opinion, or who desire to justify by a forced construction an act which they have predetermined to do. By the Constitution, a State may be divided by the consent of the Legislature thereof and by the consent of Congress admitting the new State into the Union.
Now, sir, it is but mockery to say that the Legislature of Virginia has ever consented to the division. Only two hundred thousand out of a million and a quarter of people have participated in this proceeding....
But, sir, I understand that these proceedings all take place, not under the pretense of any legal or constitutional right, but in virtue of the laws of war.... I say then, that we may admit West Virginia as a new State, not by virtue of any provision of the Constitution, but under our absolute power which the laws of war give us in the circumstances in which we are placed. I shall vote for this bill upon that theory, and upon that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding.
The views of Abram Baldwin Olin of New York were similar:
Now, Mr. Speaker, I am rather disposed to vote for this bill; but I confess I shall do it with great reluctance.... I confess I do not fully understand upon what principles of constitutional law this measure can be justified. It cannot be done, I fear, at all. It can be justified only as a measure of policy, or of necessity.... This proceeding is sanctioned by the rules and practices of war, which have been sanctioned by all nations through all time. The Constitution gives no authority for it. It does not grow out of any constitutional provision, nor of any right guarantied by it.
Thomas E. Noell of Missouri heartily endorsed the bill with the following words:
We are living in revolutionary times, and he who would undertake to apply measures of relief, such as are expedient in ordinary times of peace, is no statesman. We must apply a medicine suited to the disease, apply a remedy suited to the times; and we cannot afford, while the nation is trembling on 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; for such powers, whether expressed in the Constitution or not, are from necessity implied. I would save the nation, and would march with relentless step towards accomplishing its high and proud destiny.... I am for the exercise of those powers which will accomplish the purpose.... I believe that these people of Western Virginia are entitled to come into the Union as a State. I admit that I have grave constitutional doubts upon this question....
Martin Conway of Kansas, one of the few Republicans who opposed the bill, described the "constitutional convention" of "West Virginia" as a "mob," and then voiced his suspicion that "it is the intention of the President to encourage the formation of State organizations in all the seceded States, and that a few individuals are to assume State powers wherever a military encampment can be effected in any of the rebellious districts." He denounced the proceeding as "utterly and flagrantly unconstitutional, as radically revolutionary in character and deserving the reprobation of every loyal citizen," and added, "It aims at an utter subversion of our constitutional system and will consolidate all power in the hands of the Executive.... I insist that the President of the United States has wrongfully exercised his discretion in this case; and that, if this instance is brought in as a precedent for future action, it will involve the entire subversion of our constitutional system." According to Henry Dawes of Massachusetts, "...[N]obody has given his consent to the division of the State of Virginia and the erection of a new State who does not reside within the new State itself.... This bill does not comply with the spirit of the Constitution. If the remaining portions of Virginia are under duress while this consent is given, it is a mere mockery of the Constitution."
John Crittendon, a Democrat from Kentucky said that the so-called "government of Virginia" set up at Wheeling could be regarded as the true State government "only by a mere fiction. We know the fact to be otherwise...." (emphasis in original) He went on to argue, "If you can do this, can you not also, without the consent on the part of the people of North Carolina, divide that State and make up new States just as your armies progress, setting aside the necessity of consent on the part of the Legislature? If you can dispense with that, you can make States at pleasure.... [T]he Constitution gives us no power to do what we are asked to do."
Over in the Senate, the arguments against the bill were not much different. Garrett Davis, a Democrat Senator from Kentucky, said:
I hold that there is, legally and constitutionally no such state in existence as the state of West Virginia and consequently no senators from such a state. My object is simply to raise a question to be put upon the record, and to have my name as a Senator recorded against the recognition of West Virginia as a state of the United States. I do not believe that the Old Dominion, like a polypus, can be separated into different segments, and each segment become a living constitutional organism in this node. The present state of West Virginia as it has been organized, and as it is seeking representation on the floor of the Senate, is a flagrant violation of the Constitution.
Lincoln's Attorney General, Edward Bates, described the formation of "a new State out of Western Virginia" as "an original, independent act of revolution." He went on to write, "Any attempt to carry it out involves a plain breach of both the constitutions -- of Virginia and the nation." Writing twenty years later, Radical Republican James G. Blaine admitted, "As a punitive measure, for the chastening of Virginia, it cannot be defended. Assuredly there was no ground for distressing Virginia by penal enactments that did not apply equally to every other State of the Confederacy. Common justice revolts at the selection of one man for punishment from eleven who have all been guilty of the same offense." Even the notorious General Butler admitted in his memoirs that the creation of "West Virginia" was a complete farce.
Finally, in affixing his signature to the bill for the admission of "West Virginia," Lincoln himself admitted that it stood on the same dubious legal foundation as his Emancipation Proclamation:
"We can scarcely dispense with the aid of West Virginia in this struggle, much less can we afford to have her against us, in Congress and in the field. Her brave and good men regard her admission into the union as a matter of life and death. They have been true to the union under many severe trials. The division of a state is dreaded as a precedent but a measure expedient by a war is no precedent for times of peace.
It is said that the admission of West Virginia is secession, and tolerated only because it is our secession. Well, if we call it by that name, there is still difference enough between secession against the Constitution and secession in favor of the Constitution. I believe the admission of West Virginia into the union is expedient."
Someone had a brain fart. Besides the northern states, Maryland and Missouri had enacted anti-slavery laws in their new state constitutions before the 13th Amendment.
