Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871), is a 6–3 ruling by the Supreme Court of the United States that held that if a governor has discretion in the conduct of the election, the legislature is bound by his action and cannot undo the results based on fraud. The Court implicitly affirmed that the breakaway Virginia counties had received the necessary consent of both the Commonwealth of Virginia and the United States Congress to become a separate U.S. state. The Court also explicitly held that Berkeley County and Jefferson County were part of the new state of West Virginia.
Background When the American Civil War started, Virginia seceded from the United States in 1861 over slavery,As one historian has noted: "[Southern soldiers] entered military service to defend rights that the Constitution bequeathed to them, the very same basis upon which their home states of Virginia and Alabama seceded from the Union: They acted to protect the institution of slavery. The Army of Northern Virginia fought for many reasons, but the events that led to its formation clarified the key factor of the Civil War: It was fought over slavery." Glatthaar, 2009, p. 10. James M. McPherson agrees: "The claim that [Lincoln's] call for troops was the cause of the upper South's decision to secede is misleading.... Scores of [pro-secession] demonstrations took place from April 12 to 14, before Lincoln issued his call for troops. Many conditional unionists were swept along by this powerful tide of southern nationalism; others were cowed into silence." McPherson, 1988, p. 278 (emphasis in original). See also Freehling, 2007, p. 511–513, 526 (discussing pro-secession majority in the Virginia secession convention prior to U.S. President Abraham Lincoln's call for troops). but many of the northwestern counties of Virginia were decidedly pro-Union..McPherson, Battle Cry of Freedom: The Civil War Era, 1988, p. 298. At a convention called by the governor and authorized by the legislature, delegates voted on April 17, 1861 to approve Virginia's secession from the United States.. Although the resolution required approval from voters at an election scheduled for May 23, 1861, Virginia's governor entered into a treaty of alliance with the Confederate States of America on April 24, elected delegates to the Confederate Congress on April 29, and formally entered the Confederacy on May 7. For U.S. president Abraham Lincoln, those actions proved that rebels had taken over the state and turned the machinery of the state toward insurrection. The individuals had not acted with popular support and thus Lincoln later felt justified in recognizing the Reorganized Government.
Unionist sentiment was so high in the northwestern counties that civil government began to disintegrate, and the Wheeling Intelligencer newspaper called for a convention of delegates to meet in the city of Wheeling to consider secession from the Commonwealth of Virginia.. Delegates duly assembled, and at the First Wheeling Convention (also known as the May Convention), held May 13 to 15, the delegates voted to hold off on secession from Virginia until the state had formally seceded from the United States..Randall, Constitutional Problems Under Lincoln, 1951, p. 438-439. Concerned that the irregular nature of the First Wheeling Convention might not democratically represent the will of the people, formal elections were scheduled for June 4 to elect delegates to a second convention, if necessary.
Virginians voted to approve secession on May 23. On June 4, elections were held and delegates to an elected Second Wheeling Convention. Those elections were irregular as well. Some were held under military pressure, some counties sent no delegates, some delegates never appeared, and voter turnout varied significantly..Randall, Constitutional Problems Under Lincoln, 1951, p. 441. On June 19, the Second Wheeling Convention declared the offices of all government officials who had voted for secession vacant and reconstituted the executive and legislative branches of the Virginia government from their own ranks.Randall, Constitutional Problems Under Lincoln, 1951, p. 443-444. The Second Wheeling Convention adjourned on June 25 with the intent of reconvening on August 6..
The new Reorganized Governor, Francis Harrison Pierpont, asked Lincoln for military assistance, and Lincoln recognized the new government. The region elected new US Senators, and its two existing US Representatives took their old seats in the House, which effectively gave congressional recognition to the Reorganized Government as well.Randall, Constitutional Problems Under Lincoln, 1951, p. 453.
After reconvening on August 6, the Second Wheeling Convention again debated secession from Virginia. The delegates adopted a resolution authorizing the secession of 39 counties, with Berkeley, Greenbrier, Hampshire, Hardy, Jefferson, Morgan, and Pocahontas Counties to be added if their voters approved, and it authorized any counties contiguous with them to join the new state if they so voted as well.. On October 24, 1861, voters in the 39 counties, as well as voters in Hampshire and Hardy Counties, voted to secede from the Commonwealth of Virginia. In eleven counties, voter participation was less than 20%, and Raleigh and Braxton Counties had a voter turnout of only 5% and 2%.Curry, Richard O., A House Divided, Statehood Politics & The Copperhead Movement in West Virginia, Univ. of Pittsburgh Press, 1964, pgs. 149-151McPherson, Battle Cry of Freedom: The Civil War Era, 1988, p. 298–299; Randall, Constitutional Problems Under Lincoln, 1951, p. 451-452. The ballot also allowed voters to choose delegates to a constitutional convention, which met from November 26, 1861 to February 18, 1862..
The convention chose the name "West Virginia" but then engaged in lengthy and acrimonious debate over whether to extend the state's boundaries to other counties that had not voted to secede.. Added to the new state were McDowell, Mercer, and Monroe Counties.. Berkeley, Frederick, Hampshire, Hardy, Jefferson, Morgan, and Pendleton Counties were again offered the chance to join, which all but Frederick County accepted. Eight counties, Greenbrier, Logan, McDowell, Mercer, Monroe, Pocahontas, Webster, and Wyoming Counties, never participated in any of the polls initiated by the Wheeling government, but they were still included in the new state. A new constitution for West Virginia was adopted on February 18, 1862 and was approved by voters on April 4..
Governor Pierpont recalled the Reorganized state legislature, which voted on May 13 to approve the secession and to include Berkeley, Frederick, and Jefferson Counties if they approved the new West Virginia constitution as well.Randall, Constitutional Problems Under Lincoln, 1951, p. 452. After much debate over whether Virginia had truly given its consent to the formation of the new state, the US Congress adopted a statehood bill on July 14, 1862, which contained the proviso of freeing all blacks in the new state under the age of 21 on July 4, 1863.McPherson, Battle Cry of Freedom: The Civil War Era, 1988, p. 303–304; Randall, Constitutional Problems Under Lincoln, 1951, p. 460-461 Lincoln was unsure of the bill's constitutionality, but pressed by northern senators, he signed the legislation on December 31, 1862.
The West Virginia constitutional convention had not adjourned sine die but was rather subject to recall. Every county except Webster and Monroe Counties sent representatives to the session that convened on February 12, 1863 with Abraham D. Soper as its president. After spirited debate concerning compensation for slaveowners whose slaves were freed (the matter ultimately being tabled), the convention amended the state's constitution on February 17 to include the congressionally-required slave freedom provisions and adjourned sine die on February 20.. The state's voters ratified the slave freedom amendment on March 26, 1863. On April 20, Lincoln announced that West Virginia would become a state in 60 days.
Since they were then under the military control of the Confederacy, Berkeley, Frederick, and Jefferson Counties never held votes on secession or the new West Virginia state constitution.Virginia v. West Virginia, 78 U.S. 39, 42. On January 31, 1863, the Restored Government of Virginia passed legislation authorizing the reorganized governor to hold elections in Berkeley County on whether or not to join West Virginia.Virginia v. West Virginia, 78 U.S. 39, 44-45. The Reorganized legislature similarly approved on February 4, 1863 an election for Jefferson County and others.Virginia v. West Virginia, 78 U.S. 39, 46. The elections were held, voters approved secession, and Berkeley and Jefferson Counties were admitted to West Virginia.Virginia v. West Virginia, 78 U.S. 39, 47-48.
On December 5, 1865, the Virginia Assembly in Richmond passed legislation repealing all the acts of the reorganized government regarding secession of the 39 counties and the admission of Berkeley and Jefferson Counties to Virginia.Virginia v. West Virginia, 78 U.S. 39, 48.
On March 10, 1866, Congress passed a resolution acknowledging the transfer of the two counties to West Virginia from Virginia.Virginia v. West Virginia, 78 U.S. 39, 49.
Virginia sued, arguing that no action had taken place under the act of May 13, 1862, requiring elections, and that the elections in 1863 had been fraudulent and irregular. West Virginia filed a demurrer, which alleged that the Supreme Court lacked jurisdiction over the case because it was of a purely political nature.
Decision Majority holding Associate Justice Samuel Freeman Miller wrote the decision for the majority, joined by Chief Justice Salmon P. Chase and Associate Justices Samuel Nelson, Noah Haynes Swayne, William Strong, and Joseph P. Bradley.
Justice Miller first disposed of the demurrer. He concluded that the demurrer could not be granted "without reversing the settled course of decision in this court and overturning the principles on which several well-considered cases have been decided."Virginia v. West Virginia, 78 U.S. 39, 53. He noted that the court had asserted its jurisdiction in several cases before, including The State of Rhode Island and Providence Plantations v. The Commonwealth of Massachusetts, 37 U.S. 657 (1838); State of Missouri v. State of Iowa, 48 U.S. 660 (1849); Florida v. Georgia, 58 U.S. 478 (1854); and State of Alabama v. State of Georgia, 64 U.S. 505 (1860).Virginia v. West Virginia, 78 U.S. 39, 54-55.
Justice Miller then posed three questions for the Court to answer: :"1. Did the State of Virginia ever give a consent to this proposition which became obligatory on her? 2. Did the Congress give such consent as rendered the agreement valid? 3. If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State."Virginia v. West Virginia, 78 U.S. 39, 56. Justice Miller then reviewed the various acts taken to reorganize the government of Virginia in 1861 and the various acts that the Reorganized Government and the United States took to create the state of West Virginia and extend its jurisdiction over the counties in question.Virginia v. West Virginia, 78 U.S. 39, 56-58.