West Virginia Judiciary

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Chief Justice's Column

July-September 2017

The "Restored Government of Virginia"

by Chief Justice Allen H. Loughry II

IndepenenceHall

Independence Hall, undated, W.C. Brown photographer, Archives Collection, West Virginia State Archives


The Supreme Court of Appeals of West Virginia has long been committed to civic education. The Court has several programs designed to teach West Virginia students about the judicial branch of government, and we encourage attorneys to help us create a better understanding of our profession, the court system, and the importance of the rule of law.

In early September, the Supreme Court visited West Virginia Independence Hall in Wheeling, as part of the Court’s LAWS program (Legal Advancement for West Virginia Students). The Hall was filled with area high school students observing oral arguments in actual, pending appeals. While surrounded by the stateliness of the historic building, the students also learned about the history of this great State.

The Court established LAWS in 1998. Since then, we have held an argument docket at a different county courthouse about once a year and invited local high school and sometimes college students to attend. Students study cases on the docket before the court date, with the help of area attorneys who volunteer their time to visit classrooms and explain the appellate documents and applicable law. On the court date, students hear arguments in the case they have studied and then, after the Justices leave the room, question the attorneys who argued the case.

Although we normally hold LAWS in a courthouse to give students an opportunity to see what real courtrooms look like (as opposed to TV courtrooms), Independence Hall was chosen as the location this year to enhance students’ understanding of the founding not only of the State, but the Judiciary.

Most students present that day knew West Virginia was born during the Civil War as the Union side was carved from the western counties of Confederate Virginia; however, many may not have been aware of the clever legal and political maneuvering necessary to become a separate state. The Wheeling Custom House, now named West Virginia Independence Hall, was at the center of these efforts.

At the Convention for an Ordinance of Secession held by the Commonwealth of Virginia on April 17, 1861, a majority of the delegates approved seceding from the United States. However, most of the members of the Convention who resided in present-day West Virginia voted against secession. These regional sentiments were reflected in the results of a vote of the people held in May 1861. Despite the strong Union sentiment held by a majority of the residents in the western counties, these counties could not simply break away from the rest of Virginia. The Constitution of the United States, in article IV, section 3, mandates that “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.” Thus, leaders in the western counties of Virginia had to find a different, less direct, path to statehood.

Beginning June 11, 1861, representatives of thirty-nine western counties gathered in the Wheeling Custom House to discuss their opposition to Virginia’s secession. The delegates to this Second Wheeling Convention put into motion a shrewd plan to create a new government. Since they could not form their own state separate from Virginia, they declared that the government they were creating was the government of Virginia. By a unanimous vote, they authorized the establishment of the “Restored Government of Virginia” to be loyal to the Union. The delegates chose Francis H. Pierpont of Marion County to serve as governor, and Pierpont soon issued a declaration calling the General Assembly of Virginia into session in Wheeling. These actions occurred against the backdrop of the first land battle of the Civil War, which had occurred just days earlier in Philippi.

On August 20, 1861, acting under the auspices of the government of the Commonwealth of Virginia, the Wheeling Convention passed an ordinance providing for the formation of the “State of Kanawha” out of the western counties. Voters approved this ordinance on October 24, 1861. A Constitutional Convention then assembled in Wheeling to frame a Constitution for a separate and independent state. In April of 1862, voters in the “State of Kanawha” approved the new Constitution and a name change to “West Virginia.” On May 13, 1862, the General Assembly of [the Restored Government of] Virginia consented to the formation of West Virginia from within the boundaries of Virginia.

The soon-to-be state immediately petitioned the United States Congress for admission to the Union. Approval was ultimately obtained, but there was much debate on the constitutionality of West Virginia’s route to statehood. The West Virginia Archives contains the text of a December 31, 1862, “Opinion of Abraham Lincoln on the Admission of West Virginia” discussing the concerns:

The plans formed and debated inside the halls of the Wheeling Custom House were brought to fruition on June 20, 1863, as President Lincoln issued a proclamation making West Virginia the thirty-fifth state.

Just weeks later, on July 9, 1863, Wheeling was also the site where Ralph Lazier Berkshire, James Henry Brown, and William Harrison were chosen to become the first three Justices to serve on our Supreme Court. It was an enormous honor to hold Court arguments in such a historic location and to spend the day with so many bright and energetic student leaders of tomorrow.

Additional information about the formation of West Virginia, including President Lincoln’s opinion and the text of resolutions passed during the Wheeling Conventions, can be found on the Division of Culture and History’s website, www.wvculture.org/history. Information about the LAWS program is available at www.courtswv.gov/public resources/student resources.