How the States Got Their Shapes Too

by Mark Stein

  Pierpont’s insights shattered the unity at the Wheeling convention. Anger and recriminations replaced determination during subsequent sessions, until Pierpont himself discovered a way to thread a legal needle that would repair the damage and create the state. His scheme was later recounted by Dayton:

  Virginia was still in the Union; only her officers had abandoned their trust.… Virginia was entitled to her representatives in Congress, to elect her legislative agents.… If a legislature thus elected under the law saw fit to grant permission to the counties west of the Alleghenies to form a new State, then the requirement of the federal Constitution would be fully and legally met. If the counties east of the Alleghenies did not want this permission given, let them … elect their accredited membership to the legislature and vote the proposition down.… It was plain sailing after Pierpont had found the way.

  Whether the delegates to the convention reacted with stunned silence or with chortles is not recorded. Pierpont was proposing a four-step legal maneuver. Step one entailed declaring that, since Virginia’s elected officials had (from the federal government’s perspective) abandoned their offices, a new election would be held in Virginia to replace them. Voters throughout the state could, as in any election, choose to vote or not. Unspoken, but obvious to all, was that those voters who supported secession would not invalidate their claim by voting in an election for a Virginia that claimed to be part of the United States. In addition, the Confederate army, present throughout nearly all of the slave-holding regions of Virginia, would never permit such an election. In effect, only western Virginia (where the Union army had already established itself) would vote. Step two would be to get the U.S. Congress to recognize and seat those elected as the duly authorized replacement representatives of Virginia. Once thus recognized, step three consisted of creating the new state by complying with the U.S. Constitution. To do so, the replacement legislature of “Virginia” would pass a resolution calling for a statewide referendum on whether or not to allow western Virginia to form itself into a separate state. As with the election of replacement officials, the referendum would be, theoretically, statewide—though here too it was obvious that only voters in western Virginia would participate. Once statehood was approved by those who voted, step four consisted of completing the constitutional requirement by formally seeking acceptance of the new state from the U.S. Congress.6

  It was fiendish, it was brilliant, and it worked. In May 1861 Pierpont was elected governor of what was called “the replacement government of Virginia,” and in June Congress officially seated its representatives to the House and Senate. In August the new “Virginia” legislature passed a resolution enabling the state to hold a referendum on whether or not to allow a new state to be created from Virginia’s western region. The referendum took place in October. As before, voting took place only in western Virginia. Since Virginia’s constitution required voting to be done by voice, not by secret ballot, the referendum was overwhelmingly approved. Consequently, another convention was held, this one to write a constitution for the new state. That constitution was then sent to Congress for final approval.

  Here, however, the plan began to unravel. While Congress had played along with the charade of seating representatives from “Virginia,” recognizing “Virginia’s” approval of West Virginia’s creation was another question. Kentucky Senator Lazarus W. Powell put the cards on the table:

  I do not believe it was ever contemplated by the Constitution of the country, that less than one-fourth of the people constituting a State should, in revolutionary times like these, form themselves into a legislature and give their consent to themselves to form a new State within the limits of one of the States of this Union. It is inaugurating a principle that, in my judgment, is dangerous.

  Ohio Senator Benjamin Wade was unimpressed. In his view, because the South had abandoned the Union, Congress was not playing with a full deck:

  If all was calm, if all was peace, if all was just as it should be, then to tear old Virginia asunder might cause a commotion that would induce men to hesitate.… Now is the time for great events, when you can see that a commotion in the land has brought it within the compass of your power to do a great and mighty good, to perform it. To treat the fact of that commotion as a reason why you should not do it is the narrowest statesmanship in the world.

  The times were such that paradoxes—and brute force—ruled. The Senate ultimately passed an amended statehood bill by a vote of twenty-three to seventeen; the House passed it ninety-six to fifty-five. The amendment stipulated that the West Virginia Constitutional Convention insert language into the document explicitly ending slavery.

  The reason such language was not already in the proposed constitution was that two of the counties that had voted in favor of creating West Virginia were at the northern end of the fertile and slave-holding Shenandoah Valley, where the presence of Union troops had enabled a vote to be taken. Some in Congress questioned the logic of including these counties, separated by mountains from the rest of western Virginia. But it wasn’t just those two Shenandoah Valley counties western Virginians dreamed of possessing. “Virginia” Senator John Carlisle maintained that all the land west of the Blue Ridge mountains should compose the new state.

  Top of the Shenandoah Valley

  Western Virginians were not alone in urging Congress to include the Shenandoah Valley in the new state’s boundary. The B&O Railroad, another powerful interest (closely connected to Pierpont) urged it as well. The North’s southernmost railroad was a Confederate target no matter what, boundaries being meaningless in wartime. But the B&O, looking ahead to the postwar period, knew that it would be better off having none of its track under Virginia’s jurisdiction.7 Senator Carlisle spoke for both parties when he beseeched the Senate to locate West Virginia’s eastern boundary farther east, “including the counties in the valley, which properly belong, in a commercial aspect, to the same trading community that we do. But we can at least do this: we can secure the counties through which the Baltimore and Ohio Railroad passes.” West Virginia, as it turned out, did not get everything it wanted, but the B&O did.

  West Virginia’s statehood convention modified its proposed constitution as directed by Congress, and President Lincoln signed the legislation. Come June 20, 1863, West Virginia would officially become a state. Meanwhile, the Confederate army was approaching in full force. General Robert E. Lee and all of his corps—the commands of Generals James Longstreet, Richard Ewell, A. P. Hill, and J. E. B. Stuart—were moving up through much of what was scheduled to become West Virginia. “We direct particular attention to the following dispatch from Governor Pierpont of Virginia.… The rebels are advancing in force, and are only about nineteen miles distant from this city [Wheeling],” a Pennsylvania newspaper reported one day before the state’s official creation. “If ever there was a time for the citizens of western Pennsylvania to awaken in earnest, before the horrors and civil war are actually thrust upon their homes and firesides, now is the time.”8

  West Virginia: idealism versus realism

  As it happened, the storm clouds did not burst until two weeks after West Virginia’s birth. When they did, it was indeed in Pennsylvania, at the previously sleepy town of Gettysburg. During that military hurricane, Francis Pierpont was unpacking documents in Alexandria, Virginia. The father of West Virginia was still the governor of “Virginia.” He opted to remain in that post, in the hope that he could better serve the Union in that capacity.9 At the moment, however, there was only one place in what now remained of Virginia where he could safely locate his “government.” The town of Alexandria, just across the Potomac River from Washington, DC, though Confederate in sympathies, was heavily occupied by Union troops protecting the nation’s capital.

  With the end of the Civil War, Pierpont’s hopes of serving the Union by remaining in office were given the boot. Authority now resided with General John M. Schofield, who oversaw Virginia during Reconstruction. In effect, Pierpont went from being
the governor of “Virginia” to being the “governor” of Virginia. But the lawyer in him continued to act on behalf of those he represented. He sought to have voting rights restored to Virginians who had served in the Confederate army, while at the same time he advocated the creation of schools for newly freed slaves. His commitment to equal justice eventually angered enough people—from ex-Confederates to progressives—that he was removed from office by General Schofield in 1868.

  Returning to his hometown, Pierpont lived for the first time in the new state he had done so much to create. Virginia, meanwhile, had commenced a constitutional challenge by suing West Virginia over its possession of Berkeley and Jefferson Counties. In 1871 the Supreme Court rejected Virginia’s challenge. As significant as the decision itself was the extent to which it was covered in the press, which was precious little. Americans now had, and for many decades would continue to have, little interest in revisiting the issues of the Civil War—be it the constitutionality of West Virginia or the constitutionality of racial segregation.

  Francis Pierpont lived out the rest of his life quietly. He passed away in 1899 at the age of eighty-five and was buried alongside family members in his hometown of Fairmont, now in West Virginia. Though West Virginians too did not wish to revisit the past, they did wish to revisit Francis Pierpont. An obituary in Utah’s Salt Lake Tribune noted that his “remains lay in state in the [family’s] church, and were viewed by thousands of people. The casket was almost buried in flowers.”

  · · · NEW MEXICO, ARIZONA · · ·

  FRANCISCO PEREA AND JOHN S. WATTS

  Two Sides of the Coin of the Realm

  Mr. Perea of New Mexico Territory: I ask the unanimous consent of the Convention to allow the delegates from New Mexico to record their votes for President and Vice-President of the United States.

  Chairman: The motion is not in order.

  Mr. Watts of New Mexico Territory: Mr. Chairman, we are ready to pour out our life-blood in carrying your glorious heaven-born banner wherever the honor of our country requires it to be carried. We feel as patriotic and as much disposed to sustain it as any other portion of the country, and I hope that we shall not be denied the privileges which have been granted to other sister Territories upon this floor. I want an opportunity to record our votes for Abraham Lincoln and Andrew Johnson.

  —REPUBLICAN PRESIDENTIAL CONVENTION, 1864

  Francisco Perea and John S. Watts, sixteen years apart in age, had only recently gotten to know one another when they jointly sought to have the Republican Party include New Mexico’s vote. Yet prior to their relationship, both played key roles in defusing an explosive situation that followed the United States’ 1848 acquisition of New Mexico (and a great deal more) in the Mexican War. The danger was that, in acquiring the land, the United States had also acquired people who spoke another language and had not sought to become Americans.

  Francisco Perea (1830-1913) (photo credit 35.1)

  Watts and Perea’s leadership had little to do with the fact that one was Anglo and the other Hispanic. Neither group was of one mind regarding New Mexico’s future. Their leadership resulted from the fact that both men comprehended those complexities. Their success as leaders can be seen today in the seemingly simple straight line dividing New Mexico and Arizona.

  John S. Watts (1816-1876) (photo credit 35.2)

  New Mexico’s complexities were embedded in the orders General Stephen Kearny received after capturing Santa Fe in the opening year of the Mexican War. “In your whole conduct you will act in such a manner as best to conciliate the inhabitants,” the secretary of war had instructed, “and render them friendly to the United States.” Hardly complex orders in theory, but in practice they entailed considerable complexity. The first complication surfaced when the general issued a set of laws to govern New Mexico. Collectively known as the Kearny Code, they adhered to the secretary of war’s orders by leaving in place the region’s Mexican laws and guaranteeing freedom of religion, freedom of speech, the right to assemble—indeed, everything in the Bill of Rights with one exception: the right to bear arms.

  The part of the Kearny Code that proved to be dicey—and that later affected Perea, Watts, and the Arizona boundary they sought—was its opening statement. “The country heretofore known as New Mexico,” it benignly began, “shall be known hereafter and designated as the territory of New Mexico, in the United States of America.” Sounds simple enough … unless one should ask (and many did): what was “the country heretofore known as New Mexico”?

  To New Mexicans, the answer was clear and important. Nuevo Méjico had been a province in Mexico that extended north along the Rio Grande valley from what is now the Mexican border. But after Tejas won its independence from Mexico in 1836, becoming the Republic of Texas, it claimed the Rio Grande valley on the Texas side of the river. Mexico never accepted this claim. When Texas later joined the United States, Congress stipulated the Rio Grande as its western border, and the Mexican War began.

  New Mexico Territory, 1848-50

  While the implication in General Kearny’s statement might go unnoticed today, Congress and President James K. Polk spotted it at once and rejected it, since it was unconstitutional to create a new jurisdiction that altered an existing state line without the consent of that state. Nevertheless, four years later Congress found a way to grant New Mexico’s wish via the nation’s enduring curse: slavery.

  The Compromise of 1850 was delicately held together in part by adding an additional issue to the deal: the Texas-New Mexico border. Texas had acquired enormous debt during its days as a republic. Under the compromise, Congress enabled Texas to pay off its debt by purchasing a large block of its western region, which it then gave to the New Mexico Territory. For some reason, New Mexico’s new boundary, the 103rd meridian (later found to have been inaccurately surveyed), was considerably farther east than the Rio Grande Valley. Though unstated, the reason was not lost on a newly appointed territorial judge being sent to New Mexico, John S. Watts.

  Watts had recently arrived from Indiana, where he had spent his youth, become a lawyer, and served for a term in the state legislature. He got along well with the New Mexicans and did well for himself, too. After a few years as a judge, he resigned to go into private practice, specializing in Hispanic land claims. His clients were not the campesinos scratching out a meager living on parched parcels; they were the grandees, the wealthiest families with Spanish land grants that encompassed thousands of acres. In some instances, Watts did work for no money, accepting land instead. He soon became both wealthy and well connected with the region’s leading families.

  When Watts had first headed to Santa Fe, young Francisco Perea, who came from a prominent Nuevo Mexicano family, was heading to St. Louis. He had just finished college in Manhattan at the Bank Street Academy. During the years that Perea was away, a new fuse was lit in New Mexican politics. In 1853 James Gadsden purchased a region of Mexico on behalf on the United States. The region, which was added to the New Mexico Territory, was needed to build a second transcontinental railroad through the South. Northern states believed such a railroad would provide new economic opportunities in the South and help wean it away from slavery. Southern states believed such a railroad was vital for slavery to survive. They saw it as linking the slave state of Texas to the slavery-still-possible state of California. The only territory in between was New Mexico.

  Slavery had been abolished in Mexico in 1820, and Mexican law had been preserved in New Mexico. This was the new fuse that Congress lit when it officially created the Territory of New Mexico as an adjunct to the Compromise of 1850. In return for granting New Mexico’s dream of regaining its former land, it loosened the bolts on its inherited law by saying this particular territory could decide for itself whether or not to permit slavery.

  Few if any Hispanics aspired to become slave owners. But all remembered that their nemesis, Texas, had begun organizing its War of Independence when Mexico had banned slavery. The same thing was now happ
ening again. “A large number of delegates from different parts of the Gadsden Purchase assembled at Tucson for the purpose of taking into consideration the measures necessary for the organization of a Territorial government,” the New York Herald reported in November 1856. “Many emigrants from Texas this year have stopped in the Purchase, and doubtless if the new territorial government were formed it would soon fill up with a hardy, industrious American population.” The boundaries the Anglos in the Gadsden Purchase had in mind for “Arizona,” as they called it, encompassed the southern half of the New Mexico Territory—thereby bordering both Texas and California.

  Hispanics in New Mexico liked the idea of creating a separate territory composed primarily of the Texas transplants. But dividing the territory horizontally would put the planned transcontinental railroad in Arizona. In seeking a vertical division, many New Mexicans thought it wise to espouse nonconfrontational views on slavery so as to minimize Southern support for the “Arizonans.”

  Though Watts was an Anglo, his career was based in the Hispanic community. And though he hailed from Indiana, where slavery had never been permitted, he too adopted less-than-abolitionist views regarding slavery—though he joined the new Republican Party, which came into existence primarily for the purpose of opposing slavery.