In order for a new state to be carved out of the territory of an existing state, there had to be, according to the U.S. Constitution, “consent of the legislature(s) of the state(s) involved.” But how could the proud old state of Virginia consent to its own dismemberment? Again the question comes: “Which Virginia?” On May 13, 1862, the Restored Government of Virginia, meeting in Wheeling, gave its consent to the formation of the new state. This government, at that moment, exercised authority over only the four eastern Virginia counties where Union arms had prevailed, in addition to the counties over the mountains that would compose the new state. The bill admitting the newly constructed state then made its way through the U.S. Senate and the House under considerable hostile fire about its constitutional and legal propriety, but both houses of Congress did finally vote to admit the new state and sent the bill to Lincoln’s desk in December 1862.
On December 23 Lincoln asked his cabinet about the statehood bill. With the secretary of the interior post vacant for the moment, the six other cabinet members were exactly divided. Seward, Chase, and Stanton favored it, but Welles, Blair, and Bates opposed it.
Attorney General Edward Bates stated the objection most pointedly: “We all know—everybody knows—that the [restored] government of Virginia…does not and never did, represent and govern more than a small fraction of the state…And the legislature which pretends to give the consent of Virginia to her own dismemberment is…composed chiefly if not entirely of men who represent those forty-eight counties which constitute the new state of West Virginia. Is that fair dealing? Is that honest legislation? It seems to me that it is a mere abuse, nothing less than an attempted secession, hardly veiled under the flimsy form of law.”
Abraham Lincoln would find it awkward indeed to support anything that might be called “secession.” But his answer to this charge, written out in his own statement after he had the cabinet contributions, would turn entirely on who had seceded and why: “ 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.”
The irrepressible Henry Wise, ex-governor of old Virginia and now a not-very-competent Confederate general, scarcely a disinterested observer, had put the matter pungently. He had described the new state as the bastard child of a political rape. Lincoln’s response to the statehood bill would come very close to saying: Yes, but it is our bastard child.
One of the worries about this bill was that it would set a precedent, leading to the chopping apart of other states. Lincoln answered this widespread anxiety in the way he would answer the worries about the suspension of habeas corpus—that the emetic one takes for the illness of wartime one surely would not keep taking in the health of peace: “The division of a State is dreaded as a precedent. But a measure made expedient by war, is not precedent for times of peace.” But West Virginia statehood, unlike the temporary suspension of habeas corpus, was not an action that could be reversed or removed when the healthy condition of peace returned.
Later in the war, as the issue of reconstruction came to the fore, Lincoln would disagree with Charles Sumner and others who saw the rebel states now as conquered territory, to be dealt with however the conqueror decided; he would then be respectful of the antecedent states. But in this earlier moment he concentrated wholly on the war, and his arguments turned altogether on the contest at hand.
Although slaves were comparatively few in the western counties, those counties nevertheless did hold slaves. The endgame of making a new state would include a requirement by a Republican Congress of a swifter emancipation than the new state had initially proposed. Lincoln saw this as a huge moral and practical gain. It is to be noted that he is here taking for granted that slavery is the cause of the war: “Again, the admission of the new State, turns that much slave soil to free; and, thus, is a certain, and irrevocable encroachment upon the cause of the rebellion.”
Lincoln’s only alternatives in late December 1862 were to sign or to veto a statehood bill that had been shaped and voted on by the western Virginians and had then been passed by both houses of Congress. Having carried their project through to passage, the loyal West Virginians would regard a presidential veto as a slap in the face. Lincoln was in receipt of many communications telling him that opinion there had come to combine support for the Union with support for the new state. He said in his statement:
Her brave and good men regard [West Virginia’s] admission into the Union as a matter of life and death. They have been true to the Union under very severe trials. We have so acted as to justify their hopes; and we can not fully retain their confidence, and co-operation, if we seem to break faith with them.
Lincoln signed the bill, and West Virginia became a state.
OUR RATHER FAIR PROSPECT FOR KENTUCKY
GOVERNOR BERIAH MAGOFFIN OF KENTUCKY responded unfavorably to the president’s April 15, 1861, call for militia: “Kentucky will furnish no troops for the wicked purpose of subduing her sister Southern states.” Many Kentuckians, by contrast, regarded secession itself as the wicked purpose. And many Kentuckians agreed simultaneously with both of these views: wickedness in both directions. “A public meeting of leading citizens at Louisville first denounced secession,” wrote Nicolay and Hay, “and then denounced the president for attempting to put down secession.” Kentucky had more of this plague-on-both-your-houses attitude than any other state. And it had a tradition, of which it was proud, of standing between, conciliating, mediating. Henry Clay had been the “Great Compromiser” John Crittenden, who right away on April 17 gave a let-us-mediate speech, was now his successor. Those familiar Civil War stories about brothers fighting against brothers and fathers with a son on each side come as often from Kentucky as from any other state. Kentucky had the largest proportion of slaves of any of the border states, nearly 20 percent of the population, which meant that Kentucky was well supplied not only with slave owners but also with the apparatus supporting slavery in the culture and institutions of the state.
Kentucky also had strong ties to the North—to the states just across the Ohio River—and traded with the North; it had a strong, if modulated, attachment to the Union. Both secessionists and Unionists, aware of Kentucky’s volatile political mixture, would for strategic reasons support a position that others endorsed in its own right: “Neutrality!” On May 16 the lower house resolved that Kentucky “should take no part in the Civil War now being waged, except as mediator and friend to the belligerent parties, and that Kentucky should, during the contest, occupy the position of strict neutrality.” Governor Magoffin, although at heart himself a secessionist, saw the way the Kentucky wind blew and issued a long gubernatorial proclamation of armed neutrality; he prohibited the movement of non-Kentucky armies on Kentucky soil. On May 24 the state senate also voted for a state policy of armed neutrality.
So Kentucky was—formally, officially, legally, by enactment, resolution, and proclamation—“neutral.” That posed a problem, theoretical and practical, both for the rebels and for Lincoln, different problems, because of different theories, for each. As it turned out, the rebels (who should in theory have respected it) violated Kentucky’s neutrality, and Lincoln (who in theory rejected it) prudently respected it. Jefferson Davis and the Confederates should have respected Kentucky’s neutrality because they believed (or said they believed) in state sovereignty; Lincoln need not (theoretically) have respected it, because he didn’t. But the conduct on the two sides did not accord with the theories.
When on September 3 the former Episcopal bishop, now Confederate general, Leonidas Polk, given authority by the Confederate command, ordered his troops into Kentucky and occupied the town of Columbus, he was hard put to justify the deed. He did not find time even to notify Governor Magoffin until six days later. Polk then wrote to the governor, in the apologetic tone of all dilatory correspondents: “I should ha
ve dispatched to you immediately, as the troops under my command took possession of this position, the very few words I addressed to the people here; but my duties since that time so preoccupied me, that I have but now the first leisure moment to communicate with you.”
Of course he justified his action, violating Kentucky’s neutrality, by an alleged necessity. These actions of “preemption,” these first shots, are in wartime inevitably justified by reference to some less overt prior action by the enemy that is claimed to have made them necessary, claims that are rarely persuasive to disinterested parties. Polk was forthright at least to Governor Magoffin for the reason he violated Kentucky’s neutrality:
I had information on which I could rely that the Federal forces intended and were preparing to seize Columbus. I need not describe to you the danger resulting to Western Tennessee from such occupation. My responsibility could not permit me quietly to lose to the command intrusted to me so important a position.
He was referring to a small body of Union troops under Ulysses S. Grant that had occupied Belmont, Missouri, directly across from Columbus.
The chairman of a committee of the Kentucky Senate, enclosing a resolution of that body, put the case sharply to General Polk:
[T]he people of Kentucky are profoundly astonished that such an act [military occupation] should have been committed by the Confederate States, and especially that they should have been the first…The people of Kentucky…with great unanimity determined upon a position of neutrality in the unhappy war now being waged…In obedience to the thrice repeated will of the people, as expressed at the polls and in their name, I ask you to withdraw your forces from the soil of Kentucky.
Polk in answer would give a ridiculous list of additional justifications for his action: that Kentucky had allowed the Union army to recruit in Kentucky; had allowed them to train in a Kentucky camp; had allowed Kentucky timber to be cut and used in ships that would attack the South; had allowed its congressmen to vote supplies to Union troops.
There were those in the Confederate camp who perceived the danger in Polk’s action. Confederate secretary of war L.P. Walker wired a blunt order to Polk to withdraw the troops from Kentucky.
The Confederate governor of Tennessee Isham G. Harris, aware of the precarious state of opinion in his neighbor state, urged Jefferson Davis to order immediate withdrawal. Governor Harris received his answer not from President Davis but from Secretary Walker: “General Polk has been ordered to direct the prompt withdrawal of the forces under General Pillow from Kentucky. The movement was wholly unauthorized.”
But wait. Had Secretary Walker’s order to withdraw been obeyed? On the day previous to this exchange, Jefferson Davis had responded, with rare brevity, to the appeals and self-defenses by General Polk justifying the entry of troops into Kentucky: “General Polk: the necessity justifies the action.”
Davis later wrote to Polk: “Governor Harris and others have represented to me that the occupation of Columbus and Hickman would work political detriment to our cause in Kentucky. It is true that the solution of the problem requires consideration of other than the military elements involved in it; but we cannot permit the indeterminate qualities, the political elements, to control our actions in cases of military necessity.”
Polk, supported by Davis, did not withdraw Pillow’s men from Kentucky soil. He said he would withdraw if the federal forces also withdrew. After the Confederates occupied Columbus, Union forces under Ulysses S. Grant occupied another strategic Kentucky town, Paducah. But the decisive point was that the Confederates had marched onto Kentucky soil first. The efforts by Governor Magoffin to get both sides to withdraw did not work. Kentucky had been tipped. On September 18 the legislature passed a resolution saying: “Kentucky has been invaded by forces of the so-called Confederate States, and the commanders…have insolently prescribed the conditions under which they would withdraw, thus insulting the dignity of the state by demanding terms to which Kentucky cannot listen without dishonor; therefore, be it resolved…that the invaders must be expelled.” The ardent proponents of states’ rights had managed to lose a state by violating what that state regarded as its rights; the Southerners with their strong sense of “honor” had made their fellow Southerners in Kentucky feel dishonored.
LINCOLN HAD no such theoretical constraints as the Confederates professed; he did not believe in state sovereignty, and he did not believe a state on its own hook could be “neutral.” He had explained, both in his inaugural address and in his July 4 Message to Congress, the impossibility of state “sovereignty.” He had in that message also explicitly repudiated any possibility of “neutrality” for a state.
But he nevertheless did recognize the importance of what Jefferson Davis had rather dismissively called “the indeterminate qualities, the political elements” in Kentucky attitudes. His implicit respect for Kentucky’s “neutrality” was like his other prudent adaptations to real, if false, opinion: he knew how strongly public opinion in the crucial border states opposed anything that looked like “coercion,” and so he avoided it even while he disagreed on the ultimate rights and wrongs and definitions. Lincoln avoided making declarations that would have upset the precarious balance in Kentucky. When immediately after the fall of Sumter Governor Magoffin issued his defiant refusal to furnish troops for Lincoln’s “wicked purpose,” Lincoln might have responded by throwing federal armies into the crucial state, or not yet having much by way of federal armies, he could have sent a shower of belligerent words to match Magoffin’s defiant ones. But he did neither of those things. In fact on April 26, in an interview with a Kentucky Unionist named Garret Davis, an old friend, he gave assurance that he intended to order no movements of troops into or through Kentucky. When, however, the Confederacy, with Magoffin’s connivance, began secretly to recruit in the state, Lincoln did mix a little use of potential force with his political shrewdness: he secretly began to furnish what came to be called “Lincoln guns” to a committee of Kentucky Unionists headed by a former naval officer and native Kentuckian, William “Bull” Nelson.
When Kentucky’s legislature and governor officially enacted and proclaimed the state’s “neutrality” in May, and prohibited federal troops from “trespassing” on Kentucky’s “sovereign” soil, and thereby violated their oaths to support the Constitution, Lincoln again might have made his rejection of that idea explicit and insisted that Kentucky meet her responsibility as a state and furnish troops to the commander in chief, but again he didn’t. He did set up a military department of Kentucky, but it included only the generally loyal section of the state, and—in another application of the “no obnoxious strangers” policy that he had announced in his inaugural—appointed as its head the Kentuckian who was the hero from Sumter, Major Robert Anderson.
Lincoln did feel he should refute the false doctrine of state “neutrality” in his message to Congress on July 4, but he did not name Kentucky or speak these words in direct response to Kentucky defiance, and when Governor Magoffin sent emissaries (one of them Senator Crittenden) to ask what he intended, he said he had no present intention to send troops into Kentucky and hoped he would not in the future, although he could not promise.
Lincoln’s prudent circumspection in word and deed allowed Kentucky opinion to sort itself, after the initial shocks, and Union candidates won nine of ten congressional seats in a special election, and in another election in August the Union side won control of the state legislature by a wide margin. So the Union forces were in a strong position in Kentucky politics as the new legislature assembled.
COPING WITH FRÉMONT
THE SUCCESS of Lincoln’s careful nurturing of Kentucky was now abruptly threatened by an event in a neighboring border state.
On August 30, 1861, John C. Frémont, commander of the West, with headquarters in St. Louis, declared martial law and on his own military authority proclaimed instant emancipation of the slaves of all disloyal Missouri persons. That lightning bolt suddenly made ending slavery the topic of
the day and reverberated in radically contrasting ways in antislavery circles and in slaveholding Kentucky.
Frémont was the “Pathfinder,” whose western explorations and exploits had brought him glittering celebrity. He had led expeditions to California and to map the Oregon Trail, the Oregon Territory, the Great Basin, and the Sierra Mountains. With the help of his wife, Jessie, he wrote accounts of these explorations that left his name scattered across the western landscape: Fremont Peak; Fremont Pass; Fremont, Nebraska; Fremont, California; Fremont, Michigan. His fame, his marriage, his powerful connections, and his political eminence had all elevated him above his modest abilities. Before 1861 he had certainly been a far better-known person than Abraham Lincoln. When President Lincoln dealt with Frémont, he was touching a tender spot in the psyche of the new Republican Party: Frémont had been the party’s first presidential nominee, Lincoln’s predecessor, in 1856. His name set off emotional vibrations in segments of the party—which now this proclamation revived and augmented. When Lincoln first came into office, he had had a certain what-to-do-with-him problem. Lincoln declined to give Frémont the cabinet post some had expected the most glamorous of Republicans to receive, and Seward rejected him as ambassador to France. But surely commander of the West would be just the place for him. He was strongly supported by the powerful Blair family and was appointed to the post with fanfare.
But he took his time making his way out to St. Louis and was not a success once he got there. There was scandal, disorganization, and failure to send support in a key battle. Ridiculously ambitious projects were never realized. Frémont would eventually lose the support of the Blairs, to the point that he had Frank Blair arrested and Blair in turn sued him. Meanwhile, on August 30, he issued this proclamation in an attempt to subdue by brute force the guerrilla forces of Missouri and to revive by antislavery radicalism the reputation of John C. Frémont. In the latter aim he met with some success; for the rest of the war his would be the first name put forward as an alternative to Lincoln by antislavery radicals, particularly in Missouri.
President Lincoln- The Duty of a Statesman Page 16