which we have sworn to support is to be the rule of our action, I ask you, in all calmness and all sobriety of feeling, is not the rule plain?

There was a Virginia once by that simple name—a great name at one period of our history, and one of the original formers of the Constitution. She made it. She never was admitted into the Union; she formed it; she is a part of the original creation and being. Does she ask to be admitted? No. But a part of that State wishes now to be formed into a new State, and to be admitted into the Union as an independent State. Is not that so? Is there any ingenuity or any technicality which can change the face of the facts?

"You say that old Virginia no longer exists, and therefore can give no consent. Is there one man here who can be misled and blinded by such hypercriticism? We know the fact to be otherwise. We know that at this time old Virginia is in a state of rebellion, which we are endeavoring, by all the means in our power, to put an end to; a rebellion which once put an end to, will restore her to her constitutional place in the Union just as she existed before. You cannot admit a new State out of her boundaries without her consent, says the Constitution. That is the limit of your power, and that is enough to settle the question. You are appealed to and your power is invoked now to make this a new State. It seems to me that you cannot do it. I do not presume to argue with you on this question, because it seems to me that the very statement of it is an argument stronger than anything that I can urge. We have heard a great deal of imagination and of sympathy. That does not make constitutions. That does not sustain empire. It is not out of such stuff as that that the great, the majes tic pillars have been reared that support the mighty fabric of this republic. This question is to return to you. Remember that! Look to the future. Is there a man here who does not contemplate the restoration of this Union, and the restoration of all these States to it? If Virginia were to-morrow to lay down the arms of her rebellion and to ask to be admitted into our councils, to be part of us, as she is by the Constitution to-day, to be actually what she is constitutionally, what could you say to her if you had created a new State out of her territory? What could you say to her? Do you believe that with the pride which ought to belong to one of the States of this Union, the State would agree to come back, not as she was, not with the boundaries she had, but cut up and divided and made into different States, to come back with circumscribed and diminished power as a State? Can you expect such a thing?"

Mr. Blair, of Virginia, now rose to say: "I take it, from the gentleman's argument, that he is not aware that the Legislature of Virginia has given its consent to the formation of this new State. It is probable, however, that he

does not recognize the government at Wheeling as the government of Virginia. If that Legislature be the Legislature of the State, and it has given its consent, then the whole people of Virginia have given their consent, and the constitutional requirement is fully met."

Mr. Crittenden, of Kentucky, in reply said: "This is one of the arguments to which I had a general allusion when I spoke of the strange arguments and fancies which had been employed upon this question. The gentleman's argument supposes that the government at Wheeling is the government of Virginia. Does he not know that the contrary is the fact? Do we not all, in point of fact, know the contrary? Do we not know that the Legislature of the old State of Virginia is sitting, for aught I know, at this very moment, in the city of Richmond, and has never discontinued its sessions there?

"What does it amount to but that here is an application to make a new 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."

Mr. Blair, of Virginia, further said: "I would remind the gentleman from Kentucky, that there were counties besides those embraced within the boundaries of the proposed new State, represented in the Legislature of Virginia, that gave this consent. It was not composed exclusively of counties included in the new State; and if it was the Legislature of the State, it spoke the voice of the people of the whole State, and the constitutional requirement is complied with."

Mr. Crittenden, in reply, said: "Is the party applying for admission consenting to the admission. That is the whole of it. If that is not clear in itself, nothing that I can add to it will make it clearer."

Mr. Edwards, of New Hampshire, in favor of the bill said: "It seems to me that the only question that exists is the single one of whether the State of Virginia, by its legislature, has consented to the formation of this new State within its boundaries? The Constitution of the United States clearly contemplates the formation of a new State out of the territory of an existing State. Its language presupposes that a case of this kind would be likely to occur in the progress of the country, and therefore provides for it. This is the clear and admitted interpretation of that provision. That being the case, the only question now relating to the question of power is whether the State of Virginia, through her legislature, has consented to the formation of this State. On that subject I do not intend to go through the history of the proceedings in Virginia, eastern or western, but shall rest my vote on these grounds: first, that there was no legal legislature or government in Virginia after that govvernment put itself in the attitude of rebellion against the United States, and refused to conform to the constitutional provisions necessary

to constitute it a government, without which the legislature of a State can have no legal existence; secondly, that in the absence of any legal government in Virginia, a convention of the whole people of Virginia was called, which convention framed a government for the State, and that the legislative branch of the government thus established consented to this admission of Western Virginia as a State. If these premises are true, they certainly show the consent of Virginia, by her constituted authorities as created by that convention in the absence of any State government legally and constitutionally organized.

"But it is said that the whole State was not represented in the convention. To this it may be answered, it is enough if the whole people of the State were properly warned to be present. Notice, it is understood, was given to all. If all did not choose to be present and act, then the action of those who did assemble and act is just as legal and constitutional as if all had assembled and acted. If any notified were prevented from being present, it is not alleged that they were prevented by those who ask the creation of the new State and are to be comprised within its limits."

Mr. Dawes, of Massachusetts, in opposition to the bill, said: "I affirm that nobody has given his consent to the division of the State of Virginia and the erection of a new State, who does not reside in the new State itself. When it must be admitted that there is nobody in Virginia, in that part which is left, that has consented, I submit that this question assumes a different form from that which gentlemen give it. It seems to me that this bill does not comply with the spirit of the Constitution. If the remaining portions of Virginia are under duress, and while under duress this claim of consent is made, it seems to me that it is a mere mockery of the Constitution."

Mr. Brown, of Virginia, replied: "I do not understand the gentleman from Massachusetts. Do I understand him to say that nobody representing counties outside of the new State gave consent to the formation of the new State? Is that what the gentleman means to assert?"

Mr. Dawes answered: "There is no use misunderstanding ourselves in this matter. It is true that a representative was picked up-I say it with all respect-in Fairfax, and that two or three gentlemen in other parts of the State were procured; but they protested that they did not pretend to represent the counties from which they hailed. So far as I know, 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."

Mr. Stevens, of Pennsylvania, followed, saying: "Sir, it is but mockery, in my judgment, to tell me that the Legislature of Virginia has ever consented to this division. There are two hundred thousand, out of a million and a quarter of people, who have participated in this

proceeding. They have held a convention, and they have elected a legislature in pursuance of a decree of that convention. Before all this was done the State had a regular organization, a constitution under which that corporation acted. By a convention of a large majority of the people of that State, they changed their constitution and changed their relations to the Federal Government from that of one of its members to that of secession from it. Now, I need not be told that that is treason. I know it. And it is treason in all the individuals who participated in it. But so far as the State municipality or corporation was concerned, it was a valid act, and governed the State. Our Government does not act upon the State. The State, as a separate and distinct body, was the State of a majority of the people of Virginia, whether rebel or loyal, whether convicts or freemen. The majority of the people of Virginia was the State of Virginia, although individuals had committed treason."

Now, to say that the legislature which called this seceding convention was not the legislature of Virginia, is asserting that the legis lature chosen by a vast majority of the people of a State is not the legislature of that State. That is a doctrine which I can never assent to. I admit that the legislature were disloyal, but they were still the disloyal and traitorous Legislature of the State of Virginia; and the State, as a mere State, was bound by their acts. Not so individuals. They are responsible to the General Government, and are responsible whether the State decrees treason or not. That being the Legislature of Virginia, Governor Letcher, elected by a majority of the votes of the people, is the Governor of Virginia-a traitor in rebellion, but a traitorous Governor of a traitorous State. Now, then, how has that State ever given its consent to this division? A highly respectable but very small number of the citizens of Virginia-the people of West Virginia-assembled together, disapproved of the acts of the State of Virginia, and with the utmost self-complacency called themselves Virginia. Now, is it not ridicu lous? Is not the very statement of the facts a ludicrous thing to look upon-although a very respectable gentleman, Governor Pierpont, was elected by them Governor of Virginia? He is a most excellent man, and I wish he were the Governor elected by the whole people of Virginia.

"The State of Virginia, therefore, has never given its consent to this separation of the State. I desire to see it, and according to my principles operating at the present time, I can vote for its admission without any compunction of conscience, but with some doubt about the policy of it. My principles are these: we know the fact that this and other States have declared that they are no longer members of this Union, and have made, not a mere insurrection, but have raised and organized an army and a power, which the governments of Europe

have recognized as a belligerent power. We ourselves, by what I consider a most unfortunate act, not well considered-declaring a blockade of their ports-have acknowledged them as a power. We cannot blockade our own ports. It is an absurdity. We blockade an enemy's ports. The very fact of declaring this blockade recognized them as a belligerent power, entitled to all the privileges and subject to all the rules of war, according to the law of nations.

Now, then, sir, these rebellious States being a power, by the acknowledgment of European nations and of our own nation, subject and entitled to belligerent rights, they become subject to all the rules of war. I hold that the Constitution has no longer the least effect upon them. It is idle to tell me that the obligations of an instrument are binding on one party while they are repudiated by the other. It is one of the principles of law universal, and of justice as universal, that obligations, personal or national, must, in order to be binding, be mutual, and be equally acknowledged and admitted by all parties. Whenever that mutuality ceases to exist, it binds neither party. There is another principle just as universal; it is this: when parties become belligerent, in the technical sense of the word, the war between them abrogates all compacts, treaties, and constitutions which may have existed between them before the war commenced. If we go to war with England to-day, all our treaty stipulations are at an end, and none of them bind either of the parties. If peace is restored, it does not restore any of the obligations of either. There must be new treaties, new obligations entered into, before either of the parties is bound.

"Hence I hold that none of the States now in rebellion are entitled to the protection of the Constitution, and I am grieved when I hear those high in authority sometimes talking of the constitutional difficulties about enforcing measures against this belligerent power, and the next moment disregarding every vestige and semblance of the Constitution by acts which alone are arbitrary. I hope I do not differ with the executive in the views which I advocate. But I see the executive one day saying, "You shall not take the property of rebels to pay the debts which the rebels have brought upon the Northern States." Why? Because the Constitution is in the way. And the next day I see him appointing a military governor of Virginia, a military governor of Tennessee, and some other places. Where does he find anything in the Constitution to warrant that?

If he must look there alone for authority, then all these acts are flagrant usurpations, deserving the condemnation of the community. He must agree with me or else his acts are as absurd as they are unlawful: for I see him here and there ordering elections for members of Congress wherever he finds a little collection

of three or four consecutive plantations in the rebel States, in order that men may be sent in here to control the proceedings of this Congress, just as we sanctioned the election held by a few people at a little watering place at Fortress Monroe, by which we have here the very respectable and estimable member from that locality with us."

Mr. Ashley: "As I understand it, when the new State is admitted, Governor Pierpont is to move over into Alexandria and remain the Governor of the old State of Virginia; while the two senators who are now in the other end of the capitol, from Virginia, will, by the same proceeding, still remain the senators from that State."

Mr. Stevens: "Certainly. We shall have four senators, instead of two. I wish they would bring Mason back instead of one of them. But, sir, I understand that these proceedings all take place, not under any pretence of legal or constitutional right, but in virtue of the laws of war; and by the laws of nations these laws are just what we choose to make them, so that they are not inconsistent with humanity. 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."

Mr. Segar, of Virginia, followed in opposition to the bill. He said: "I believe it is a fundamental maxim in our political system, dating as far back as the Declaration of Independence, that all government derives its authority from the consent of the governed; in other words, from that source of all legitimate power, the sovereign people. Now, sir, this bill is in the very teeth, in direct subversion of this cardinal principle of republican, popular government. This new State proposition has not received the sanction of the people upon whom the new government is to operate. Casting out of the calculation the whole rebel portion of the State, I propose to show that the consent of the northwestern people themselves has not been had. It is not founded on the consent even of the people whose government it is claimed to be, and who are to come within its rule. There has not been that general, close representation of the people included within the limits of the proposed new State, which is absolutely necessary to impart legality to all governments among us. A very large portion of the people that were never represented at all, neither in the Legislature which called the convention that ordered a vote to be taken on the new State question, nor in the Wheeling Legislature, nor in the convention that framed the constitution of the proposed new State.

"Let us look to the facts. I find that of

the forty-eight counties to compose the new State, eleven never had even the semblance of representation-had no part, nor lot, nor say in the establishment of the new government. The counties of Logan, Calhoun, Nicholas, McDowell, Mercer, Monroe, Greenbrier, Pocahontas, Webster, Morgan, and Pendleton, eleven in number, and containing a white population of 55,400, were never represented anywhere neither in Legislature nor convention-in reference to the formation of a new State. They never cast a vote either for the election of a member of the Wheeling Legislature, or for the convention that submitted the question of the new State to the people, or for the convention that framed the constitution of the new State. Are these eleven counties, with these 55.400 white freemen, to be brought within the operation of a government which they had no part in making, and to which they have in no way consented?

"Again, sir; the three counties of Hampshire, Hardy, and Morgan, holding a population of 27,509, were never represented either in the House of Delegates, or either of the conventions. Is it to be supposed that the people of these counties cared aught for the new government, when they would send representatives neither to the Legislature nor to the conventions acting in the premises? Are they to be bound by this new government under such circumstances? Is it their government? Can it be said that they have given their consent to it through their Legislature, as the Constitution prescribes, when they were not represented there at all?

"Still another test of the absence of popular, constitutional consent: On comparing the ordinary vote of the counties composing the new State with the vote actually cast for the adoption of the new State constitution, it will 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. I submit a few particulars. In 1860, the county of Braxton cast a vote, in the Presidential election, of 754; in 1862, on the vote for the new constitution, only 83, just one ninth of the population; Barbour county, 1,269 in 1860, and 459 in 1862; Boone, 566 in 1860, to 78 in 1862; Hampshire, 1,915 in 1860, to 157 in 1862; Hardy, 1,479 in 1860, to 192 in 1862; Pendleton, 929 in 1860, to 116 in 1862; and this proportion runs through the vote generally. Is the new government to be inaugurated by such a vote as this?

"Yet, again: ten counties, to wit, Logan, Fayette, Wyoming, Mason, Mercer, Monroe, Webster, Morgan, McDowell, and Pocahontas, with a population of 50,000, did not cast a vote on the new State and constitution. Are these counties and their 50,000 population to be bound by a government about which they never cast a vote? Is it their government? Have they consented to it? Is this the way of carrying out the great and revered principle

of civil liberty, that taxation and representation are to go together?

"And I find the aggregate vote of the coun ties composing the new State to be, ordinarily, 48,000; while on the new State question, the entire vote was only 19,000! Does a government formed under such circumstances merit the name of government? I must say that my friend from Massachusetts (Mr. Dawes) was not far from the truth when he said that civil organizations, raised under such imperfect representation, were the merest mockery of the Constitution and of the elective franchise.

"But the most remarkable anomaly involved in the measure embraced in this bill, I have yet to state. There are three counties cmbraced within the limits of the new State, those of Greenbrier, Mercer, and Monroe, with a population of 30,000, which are far removed from the neighborhood of the northwest, and which are totally dissimilar in interest. They are on the line of the great Central Virginia railroad, running through the very heart of Virginia, and extending from the Ohio river to the seaports of Virginia. Their fortunes are indissolubly connected with the fortunes of Eastern and Central Virginia. You can no more separate their interests from those of tide-water and middle Virginia, than you can divide the interests of man and wife. Their market is in the cities of tide-water Virginia; that of the people of the new State is, by nature and by nature's God, in the city of Baltimore.

"Now, sir, upon none of the laws of the human constitution or the instincts of mortal nature, can the people of these three counties assimilate with their fellow-citizens of the northwest. Nor is there one man or woman, in my opinion, in these three counties, who desires to be connected with this West Virginis government."

Mr. Bingham, of Ohio, closed the debate. In opposition to the view of Mr. Stevens, he urged that the Legislature of West Virginia was the Legislature of the State, as follows: "We come now to the great point in discussion here. Who constitute the State of Vir ginia? I beg leave here to thank my friend from Massachusetts (Mr. Dawes) for suggesting what was essential to the line of my argu ment. The gentleman from Pennsylvania (Mr. Stevens) said the majority of the citizens of the United States within any State are the State. I agree to that, sir, subject to this limitation, that the majority act in subordination to the Federal Constitution, and to the rights of every citizen of the United States guaranteed thereby.

"But, sir, the majority of the people of any State are not the State when they organize treason against the Government, and conspiracy against the rights of its citizens. The people of a, State have the right to local gov ernment. It is essential to their existence.

To-day, as the law stands in this country, and by the uniform construction of the powers of this Government, there is no law by which the midnight assassin of a mere private citizen can be brought to judicial trial, to conviction, and to judgment, within any State of this Union, save the law of the State. Your Federal tribunals under existing laws have no cognizance of the crime if committed within a State on a private citizen, and can do nothing in the punishment of it judicially.

"Now, sir, I beg leave to ask, can the minority of the people of the State, by the act of the majority committing treason, and taking up arms against the Federal Government, be stripped of their right within the State of protection, under State laws, in their homes and in their persons, even against the hand of the assassin? Am I to stand here to argue such a question as that with intelligent representatives? I say, that if the majority of the people of Virginia have turned rebels, as I believe they have, the State is in the loyal minority, and I am not alone in that opinion. I repeat, where the majority become rebels in arms, the minority are the State; that the minority, in that event, have a right to administer the laws, and maintain the authority of the State government, and to that end to elect a State Legislature and executive, by which they may call upon the Federal Government for protection 'against domestic violence,' according to the express guarantee of the Constitution. To deny this proposition is to say that when the majority in any State revolt against the laws, both State and Federal, and deny and violate all rights of the minority-that however numerous the minority may be, the State government can never be reorganized, nor the rights of the minority protected thereby, so long as a majority are in the revolt. In such an event, the majority, being rebels, must submit to the law of the minority, if enforced by the whole power of the National Government. That is no new idea, even. It is as old as the Constitution. I ask gentlemen to refer to that remarkable letter of the Federalist, addressed by Mr. Madison to the American people, wherein he discusses the fourth section of the fourth article of the Constitution of the United States, to wit: The United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on application of the Legislature (or of the executive, when the Legislature cannot be convened), against domestic violence.

"As if that great man had been gifted with the vision of a seer, standing amidst his own native hills of Virginia, he foretold that it might come to pass that a majority of the people of a State might conspire together to sweep away the rights of the minority, and break down their privileges as citizens of the United States. In that paper Mr. Madison says:

Why may not illicit combinations, for purposes of violence, he formed as well by a majority of a State as by a majority of a county or a district of the same

State? And if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the Federal authority, in the former, to support the State authority?

"That is precisely the question here to-day. That is precisely the condition of things in Virginia. The majority have become traitors. When the Representatives whom they had elected, who were required by the existing constitution of Virginia, as well as by the Federal Constitution, to take an oath to support the Constitution of the United States, went to Richmond, joined in this conspiracy, lifted up the hand of treason and rebellion against the Government, forswore themselves, and, in short, entered into a deliberate article of bargain and sale with Alexander H. Stephens, vice-president of the Southern confederacy, transferring the State of Virginia to that confederacy, they surrendered all right to represent any part of the people of Virginia; as a Legislature they utterly disqualified themselves to execute that trust. But, sir, what are we told? According to the logic of some gentlemen, it would seem that because the Legislature at Richmond turned traitors, because every man of them, except those few who escaped for their lives from that doomed city-as I trust it is a doomed city-joined in this red-handed rebellion, therefore the people could have no legislation. I appeal to the immortal words of the Declaration in refutation of that conclusion. The legislative powers, incapable of annihilation, have returned to the people at large for their exercise.' No matter, sir, who turns traitor, the legislative powers are incapable of annihilation. Now, what but this power remained to the people of Virginia? Their Governor and Legislature had turned traitor. You say that no special election could be had under the constitution of Virginia without a proclamation from the Governor, in vacation, or without a writ of election issued by the Legislature. What was to be done? I say that the power remained with the loyal people of that State to call a convention and create a provisional government, which they did. On the 23d day of May, 1861, the people of the State of Virginia, invited by an original convention of the people themselves, met at the time and place specified in the existing law of that commonwealth, and elected a Legislature.

"Is it said that a majority of those chosen on that day, including those chosen by the rebels, took the road to Richmond, and took the oath of treason against the Government of the country? Then I tell gentlemen who make that remark that these members elect never became part of the Legislature at all. The original convention of the people declared, in 1861, that only those who were elected, and were qualified, should be the Legislature of the State. I might go somewhat farther with this argument. I say that the ultimate power to decide that question, 'Which of these bodies is the Legislature of Virginia?' is in the Con