This alone, like the test, identical in principle, applied in the famous Judgment of Solomon would of itself be enough to settle, beyond the possibility of cavil, a point already, indeed, sufficiently clear without it. The body which performed these acts was, in no possible sense, legal or moral, the Legislature of Virginia, and had no shadow of right in law or fact, to speak in her name or with her authority.
Early in the next session the bill for the admission of West Virginia was taken up in the House of Representatives, and here again the palpable infraction of the Constitution involved in its passage gave pause to some even among the staunchest Republican partisans.
Mr. Conway, of Kansas, went directly to the root of the matter, and declared plainly that the "restored" State of Virginia was in his judgment no State at all. "I do not," he said, "regard this proposed division of Virginia as having received that assent from the Legislature of the State which the Constitution requires. * * * A number of individuals met at Wheeling and without any legal authority whatever, arranged a plan for a government. * * * The utter and flagrant unconstitutionally of this scheme I may say its radically revolutionary character ought to expose it to the reprobation of every loyal citizen and every member of this House."
Mr. Colfax, of Indiana, had had grave doubts during the preceding session as to the propriety of passing the bill, but in view of the recognition of the Wheeling government by the President, by various heads of departments, and by the two Houses of Congress, he considered the question of the legitimacy of that government as settled by authority [1] and would give the bill his support. Mr. Olin, of New York, while expressing his disposition to vote for it, confessed that he did not fully understand upon what principles of constitutional law it could be justified. "It can not be done, I fear, at all," he said. "It can be justified only as a measure of policy or of necessity."[1]
Mr. Crittenden, of Kentucky, held that the Wheeling government could be regarded as the government of Virginia only by a fiction. "We know," he said, "the fact to be otherwise. * * * What does it amount to but that here is an application to make a new
