Restored Government of Virginia

• 1. Introduction

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  The Restored Government of Virginia held a peculiar distinction during the American Civil War: it was simultaneously the legally recognized government of an entire state and a body that controlled almost none of it. Francis Harrison Pierpont, elected governor by a convention in Wheeling in 1861, presided over a commonwealth whose actual capital, Richmond, flew the Confederate flag. Abraham Lincoln recognized Pierpont's government as Virginia's legitimate authority. The United States Congress seated the senators and representatives it sent. And yet the secessionist state government in Richmond never acknowledged either Unionist government operating within its antebellum borders. How does a government govern without a state? What happens when two rival legislatures both claim to speak for the same people? And what becomes of a government whose very reason for existing dissolves when it gives away half the territory it claimed to control?

• 2. A Declaration and Its Contradictions

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  When the Second Wheeling Convention met in its first session in June 1861, it adopted a document called "A Declaration of the People of Virginia". The declaration rested on a pointed legal argument: the Virginia Declaration of Rights required any substantial change in the form or nature of state government to be approved by the people, not merely by a legislature-convened convention. Because the secession convention had been called by the legislature rather than by popular will, the declaration pronounced the secession convention illegal and all its acts, including the Ordinance of Secession, void.

  The argument was tidy on paper but awkward in practice. The members who convened in Wheeling had themselves not been elected by the people to the offices they assumed. They met on the basis of local petition and what the record describes as "other irregular accreditation", with some described as "more or less self-appointed". The very body pronouncing the secession convention illegitimate for lacking a popular mandate had its own legitimacy problems.

  President Lincoln recognized the Restored Government anyway, and the 37th United States Congress seated its delegation. The senators chosen were Waitman T. Willey and John S. Carlile. Representatives came from districts where delegates in the Richmond Convention of 1861 had voted to stay in the Union, including William G. Brown from the 10th district, Jacob B. Blair from the 11th, and Kellian V. Whaley from the 12th. The 7th district sent Charles H. Upton from Alexandria and Fairfax County, and the 1st district sent Joseph E. Segar from the Eastern Shore and Tidewater Peninsulas. Every member of its congressional delegation was an Unconditional Unionist.

• 3. The West Virginia Problem

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  Almost from the moment the Wheeling conventions began, some delegates pushed for a separate state carved from Virginia's northwestern counties. The idea created immediate friction. The United States Constitution of 1787 contained a provision forbidding the creation of new states from existing ones without the consent of the existing state's legislature. Soon after Lincoln and Congress recognized the Restored Government as Virginia's legitimate government, it asserted the authority to grant that consent.

  A popular referendum in October 1861 asked voters to approve the creation of a new "State of Kanawha" from the northwestern counties. Delegate Chapman J. Stuart later described the results bluntly: in a voting population he estimated at 40,000 to 50,000 people, the poll drew only 17,627 votes, and some of those were cast by soldiers already in the army. Statehood was popular in the far northwestern counties but lacked widespread support across the proposed new state's territory.

  Another vote on the 3rd of April 1862 approved a new constitution for the now-renamed "West Virginia", but turnout remained low. The legislature of the Reorganized Government gave its consent to the creation of the new state on the 13th of May 1862. Congress passed the statehood bill but added conditions: slaves in the new state were to be emancipated, and certain disputed counties were to be excluded. Lincoln, reluctant to divide Virginia during a war meant to reunite the country, signed the bill on the 31st of December 1862. West Virginia was admitted as the 35th state in the Union on the 20th of June 1863, and a new star was added to the American flag on the Fourth of July a few weeks later.

  The admission of West Virginia stripped the Restored Government of the territory it actually governed. What had been a government in a corner of a large state became a government in name over a commonwealth it could not control.

• 4. The Double Oath and Civil Control

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  Voting under the Restored Government was not open to all Virginians who had previously qualified. The definition of a "qualified voter" had been redrawn: only those who supported both the Federal government and the Pierpont government in Wheeling could participate. An oath was devised and implemented almost immediately, called the "double oath", requiring signatories to swear loyalty to both the United States Constitution and to the government vindicated by the Wheeling conventions. Anyone who refused to take it could face arrest.

  Lt. Gov. Daniel Polsley and Daniel Lamb of Ohio County had raised objections as early as the 16th of August 1861, a few days before a statehood ordinance was created. Lamb stated that within the proposed boundaries, it was not possible to have a fair and full expression of even one-fourth of the people on any subject.

  Those who refused the oath were sometimes sent to the Wheeling Atheneum, which had been converted into a prison, and sometimes to Camp Chase, a Federal prison in Columbus, Ohio. A Union captain investigating conditions at Camp Chase described civilian prisoners held on what he called frivolous charges, warning that the camp was being filled "with political prisoners (made by half depopulating a section of country where inhabitants are often compelled to expressions of apparent sympathy)".

  In December 1862 Pierpont asked the Wheeling legislature for a law authorizing the arrest of private civilians explicitly for hostage-taking purposes, which was passed on February 4. The U.S. Judge-Advocate General, Joseph Holt, subsequently complained to Secretary of War Edwin Stanton that Governor Pierpont was interfering with the Federal prisoner exchange program and transcending the ordinary police power he was authorized to exercise. Further laws required loyalty oaths for business licenses and extended the requirement to jurors, lawyers, doctors, dentists, ministers of the gospel, surgeons, and others seeking professional standing. Some prominent Unionists, including John Jay Jackson Sr. and Sherrard Clemens, believed the Wheeling government itself was not legitimate. Clemens urged his supporters to boycott the polls entirely.

• 5. A Shadow Government in Alexandria

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  Pierpont had been born in what became West Virginia and had hoped to become governor of the new state. When West Virginia statehood arrived in June 1863, that path closed. Arthur I. Boreman became the first Governor of West Virginia. Pierpont, finding that few suitably qualified Unionists within Virginia's reduced borders expressed any interest in replacing him as what he understood would be essentially a figurehead chief executive, reluctantly agreed to continue heading the Restored Government.

  On the 26th of August 1863, the government moved from Wheeling to Alexandria, a city in northeastern Virginia that had been under Union occupation since May 1861, located across the Potomac River from Washington and chosen precisely to protect the national capital. Pierpont had previously characterized the Confederate state government in Richmond as "large numbers of evil-minded persons that have banded together in military organizations with intent to overthrow the Government of the State", a framing that left no room for negotiation.

  Outside the narrow strip of jurisdictions the Restored Government administered along the Potomac River, around Hampton Roads harbor, and along the Chesapeake Bay, Richmond controlled the state. Federal military authorities enforced martial law throughout the Union-occupied regions, which effectively meant the whole of Virginia not under Confederate control. That martial law further limited whatever civil authority Pierpont's government might have exercised.

  The government adopted a new Virginia constitution in 1864, by declaration rather than by popular vote, as delegate John Hawxhurst of Fairfax County had advocated. The constitution recognized West Virginia's existence, abolished slavery, and disqualified Confederate supporters from voting. On the 9th of February 1865, the Restored Government's legislature voted to ratify the Thirteenth Amendment to the United States Constitution, which abolished slavery nationwide.

• 6. The Return to Richmond

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  The Restored Government had claimed Richmond as its de jure capital since its formation, even while it met first in Wheeling and then in Alexandria. That claim became real in late March 1865, when the Confederate States government and General-in-Chief Robert E. Lee's Army of Northern Virginia evacuated Richmond as their capital. Union forces took the city, and the Restored Government moved there.

  After the end of hostilities in May 1865, the government operating under the Constitution of 1864 assumed civil authority for the entire Commonwealth of Virginia. It held that authority until the adoption of the Constitution of 1869. The transition was not without anxiety. Some West Virginians feared that once Virginia was restored to the Union, its government might challenge the validity of the authority the Restored Government had exercised in consenting to West Virginia's creation. Congress addressed that concern directly: as a condition for Virginia's readmission to Congress, Virginia was required to affirm in its 1869 Constitution that the authority by which West Virginia had been carved from Virginia territory was valid, effectively granting consent retroactively to 1863. The Restored Government had formed without a judicial branch, operated as a shadow government over territory it rarely controlled, and gave away the land it actually governed. That a condition of Virginia's readmission to Congress depended on validating the Restored Government's earlier decisions made those irregular Wheeling conventions among the most consequential gatherings in the history of both states.