Spirit of Jefferson

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JEFFERSON AND BERKELEY.
Bibliography
Title

Spirit of Jefferson

Article

JEFFERSON AND BERKELEY.

Date

06/25/1867

Page

p1c2 - p2c4

Medium

Periodicals

Publisher

Benjamin F. Beall Charlestown, (West) Virginia June 25, 1867

Topics Statehood,Reconstruction,Jefferson County's Transfer to West Virginia


December Term

A.D. 1866 .

THE COMMONWEALTH OF VIRGINIA vs. THE STATE IF WEST VIRGINIA.

Argument of Mr. B.R. Curtis, for the Commonwealth of Virginia.

May it please your Honors:

The claim of the Commonwealth of Virginia to jurisdiction over the two counties of Jefferson and Berkeley rests upon a few admitted facts and upon the application to those facts of settled rules of law. Concerning the application of these settled rules of law to these admitted facts there is controversy, and this is the field of debate in the cause. But as to the facts themselves, and as to the rules of law which we assert are applicable to them, there is no reason for controversy, and thus far no controversy has been attempted.

To clear the way for argument upon what is a legitimate subject of argument, and to assist the Court to fix upon the questions to be decided, I desire first to state the admitted facts and the settled principles upon which the claim of the complainants rests, and then to ask the Court to follow me in an inquiry whether the respondent's counsel have shown these settled principles to be inapplicable to these admitted facts.

These are the facts:

On the twenty-first day of January, 1863 , the Legislature of the Commonwealth of Virginia passed an act expressing the willingness of the Commonwealth that the county of Berkeley should be ceded to, and become a part of, the State of West Virginia.

On the fourth day of February, 1863 , the same legislature passed a similar act expressing a like willingness respecting the county of Jefferson.

Each of these acts contained conditions precedent, which are clearly expressed and in their nature are fundamental conditions. They are: that at the appointed time and in accordance with the legally established usages for ascertaining the will of the people by their votes, the qualified voters of each of these counties should have a safe and fair opportunity to give their votes upon the question of the proposed annexation; and that there should be a full and free expression of their opinion thereon; and that the consent of Virginia to the proposed annexation was made dependent upon the result of that full and free expression of the opinion of the qualified voters of each of these counties, given upon such legal, safe and fair opportunity.

It is impossible to read the acts referred to without admitting that they contain these requirements as precedent to the consent of the Legislature of Virginia to the transfer of either of these counties.

The bill alleges, and the respondents by their demurrer admit, "that, at the time fixed by the said acts for opening the said polls, the state of the country in the aforesaid counties of Berkeley and Jefferson rendered it impracticable to open the polls at all the places, or any CONSIDERABLE PART OF THE PLACES OF VOTING IN THE LAST NAMED COUNTY, OR IN EITHER OF THEM, NOR, IN POINT OF FACT, WERE THE SAME, OR ANY OTHER CONSIDERABLE PART THEREOF, OPENED OR HELD, NOR WAS IT PRACTICABLE FOR THE VOTERS OF THE SAID COUNTIES, OR EITHER OF THEM, OR ANY CONSIDERABLE PART THEREOF, TO HAVE NOTICE OF SUCH POLLING, OR TO ATTEND THE SAME, AND IN POINT OF FACT, THEY DID NOT HAVE SUCH NOTICE, AND DID NOT AND COULD NOT ATTEND THE SAME BY REASON OF THE CIVIL WAR THEN AND THERE BEING WAGED AND ACTIVELY CARRIED ON; and, by reason thereof, there could not be, and, in point of fact, was not a full and free expression, or any expression, or any opportunity for any expression of the opinion of the people of the last-mentioned counties, or either of them, concerning such proposed annexation; and, in point of fact, a very great majority of the voters of each of the said counties then were and now are opposed to such annexation."

So that thus far the facts are plain. The Legislature of Virginia was willing to consent that either of these counties should be transferred from the Commonwealth of Virginia to the State of West Virginia, provided: that the qualified voters of either of the counties should, after a legal, safe and fair opportunity, fully and freely express by a majority their desire for such annexation. Upon no other terms, and under no other conditions was the willingness of Virginia to make the proposed transfer expressed. Upon the admitted facts these fundamental conditions were not complied with. Not that there was some formal defect in the proceedings. Not that there was an omission to open some one polling place, or that some voters were improperly admitted or excluded; but that from the controlling necessities of the civil war, then actively waged upon the soil of these counties, it was not practicable then and there to open and conduct any voting; then no considerable part of the voters in either of the counties could or did attend the same; in short, that the fundamental conditions upon which the Commonwealth of Virginia had expressed its consent to the proposed transfer, utterly and totally failed.

The day appointed for the expression by the qualified voters of these counties of their wish as to the proposed annexation was the fourth Thursday of May, 1863 .

On the thirteenth day of February, 1864 , a convention assembled at Alexandria, under the authority of that government of the Commonwealth of Virginia which will presently be shown to have been recognized by Congress as the lawful government of the State, and which these respondents are not in a condition to deny, and do not deny, was then its lawful government; and that the convention adopted and promulgated an amended constitution of government for that State. And the attempt to ascertain the will of the qualified voters of the counties of Jefferson and Berkeley having wholly failed, and the fundamental condition of the proposed annexation not having been satisfied, this constitution expressly included the counties of Jefferson and Berkeley as part of the Commonwealth of Virginia and extends to them the political and judicial organization of the State.

At this time the civil war still existed and was actively waged and carried on. It is a matter of history to which the Court will take notice, and it is brought directly to judicial knowledge by a proclamation of the President of the United States of the ninth day of May, 1865 , to which full reference will be made hereafter, and that it continued till the spring of 1865 . So that the first legislature of that government of Virginia which was recognized by Congress as the lawful government of that State, which assembled at the close of the civil war, met on the fourth day of December, 1865 ; and on the second day of its session it passed the act reciting the facts that the fundamental conditions on which the Commonwealth of Virginia was willing to assent to the proposed transfer of these counties had wholly failed, and that no agreement had been entered into, with the assent of Congress, and formally withdrawing, by express repeal, all previous proposals on the subject.

On the tenth day of May, 1866 , more than three months after Virginia formally withdrew from the proposed compact, a Congress, in which West Virginia was represented, and Virginia was not represented, expressed by a resolve its assent to the transfer of these counties.

These are the facts:

The rules of law on which we rely are as incontrovertible as these matters of fact.

The first of them is in the Constitution of the United States:

"No State shall, without the consent of Congress, enter into any agreement or compact with another State or a foreign power."

The second is, that a transfer by one State of a part of its territory and jurisdiction to another State, can be made only by a compact or agreement between them.

It would be difficult to adduce arguments in proof of this proposition. No proof can be more evident than the proposition itself. It is not conceivable how one State can voluntarily proffer a transfer of a part of its territory to another State, and how the latter can accept the proffered transfer without a compact or agreement between them. A compact or agreement is the reciprocal and concurrent consent of two or more parties to a change of rights or interests. That such a compact or agreement was not only necessary to effect the proposed transfer, but is provided for in the terms by Virginia, is beyond question. In the act concerning the transfer of the county of Jefferson is this language:

"And the consent of this General Assembly is hereby given for the annexation to the said State of West Virginia of such of the said districts, or either of them, as a majority of the votes polled in each district may determine; provided that the Legislature of the State of West Virginia shall also consent and agree to said annexation."

The act respecting Berkeley is the same in substance. But we are relieved from all necessity of argument on so plain a proposition by the uniform, repeated and explicit declarations of this Court.

In Rhode Island vs. Massachusetts, 12 Pet. R. 725. this Court said: "It is most manifest, that by universal consent and action, the words 'agreement,' and 'compact,' are construed to include those which relate to boundary, yet that word boundary is not used. -- No one has ever imagined that compacts of boundary were excluded because not expressly named; on the contrary, they are held by the States, Congress and this Court, to be included by necessary implication; the evident consequence resulting from their known object, subject matter, the context, and historical reference to the state of the times and country. No such exception has been thought of, as it would render the clause a perfect nullity for all practical purposes; especially the one evidently intended by the constitution in giving the Congress the power of dissenting to such compacts. Not to prevent the States from settling their own boundaries, so far as merely affected their relations to each other, but to guard against the derangement of their federal relations with the other States of the Union, and the federal government; which might be injuriously affected if the contracting States might act upon their boundaries at their pleasure."

In Poole vs. Fleeger, 11 Pet. R. 209, speaking of the power of the State to make conventional lines of boundary, this Court declares the right still exists under the Constitution, "guarded in its exercise by the single limitation or restriction, requiring the assent of Congress."

In Florida vs. Georgia, 17 How. 494, it was declared, "By the 10th section of the last article of the Constitution, no State can enter into any agreement or compact with another State without the consent of Congress. Now, a question of boundary between States is, in its nature, a political question, to be settled by compact made by the political departments of the Government. And if Florida and Georgia had, by negotiation and agreement, proceeded to adjust this boundary, any compact between them would have been null and void, without the assent of Congress. This provision is obviously intended to guard the rights and interests of other States, and to prevent any compact or agreement between any two States, which might affect injuriously the interest of the others. And the right and the duty to protect these interests is vested in the General Government."

The recent case of Massachusetts vs. Rhode Island is instructive, because it involved the action of Congress as well as of this Court. The case is not reported, no action adverse to either of the parties being had by the Court.

The suit was originally an adverse suit brought by Massachusetts against Rhode Island to determine and fix a part of the boundary line between the two States, and to restore to Massachusetts jurisdiction over the territory in dispute.

After the consent of Rhode Island had been filed, contesting the pretensions of Massachusetts, the two States, through their authorized commissioners, whose acts were approved by the Legislature of each State, made a conventional line of boundary, the establishment of which would operate to make mutual cessions of territory by way of exchange. The two States united in requesting Congress to sanction their proposed compact and in requesting this Court to establish by decree the proposed conventional line. By an act passed February 9, 1859 , (11 Stats. at Large, 382,) Congress empowered the Attorney General to intervene in the cause, and consent for the United States "to the conventional line to be agreed on by the parties;" and upon such consent being given, the Court passed the decree establishing the proposed line.

Some attempt is made in the printed argument filed by the counsel for West Virginia to show that in several instances there referrer to, occurring before 1820 , States had adjusted boundary disputes without the consent of Congress. But these precedents will not be found to have any tendency to prove that it was understood by the States concerned in them that one State could cede territory to another State without the consent of Congress. Doubtless, the parties have as complete power to find and mark a disputed boundary, and to establish it by their several and solemn admissions of its correctness, as this Court has to find and mark and establish it, when it is in dispute, without the consent of Congress; and this is the character of the acts referred to. They do not purport or pretend to establish a merely conventional line, but to ascertain and mark an existing line. Such action rests on the existing rights of the parties, and not on a compact by which new rights are created.

It is asserted in the printed argument of the counsel for West Virginia -- and the assertion has been repeated here at the bar -- that States may legislate concurrently upon a variety of subjects, such as line of railroads, bridges, ferries and the like, without the consent of Congress. This is not denied.? But whether concurrent legislation of two States requires the consent of Congress depends on the object of the concurrent legislation and upon what is requisite to effect that object.

If the only purpose is severally to exert the legislative power of each State in a particular way, so that some object, in which each has its own interest, can be better accomplished, and each State retains its own unrestricted powers, and no relation whatever arises, or is to arise between themselves, such legislative action does not require the assent of Congress, for the plain reason that no compact is contemplated or necessary to effect all that is proposed. But, if the object of the concurrent legislation is a cession of territory by one State to another State, inasmuch as this can only be effectually done by the reciprocal and united consent of each State, given so as to be binding on both, that is, by a compact or agreement, then, by the express terms of the Constitution, the consent of Congress is necessary.

I respectfully submit to the Court that we have advanced as far as this upon firm ground; that a transfer of the territory and jurisdiction of these two counties from the Commonwealth of Virginia to the State of West Virginia could be made only by a compact or agreement, which the two States were prohibited from entering into without the consent of Congress.

It is most material to observe how the Constitution has left this power of the States to a contract with each other. As was stated by this Court in Poole vs. Fleeger, in 11 Peters' R. 209, the States, if not restrained by the Constitution, would have had the same capacity to make compacts concerning their territory and jurisdiction as other independent States. It was deemed wise to restrain this power. Different modes of restraint were practicable. One was to leave the States free to make compacts with each other, which should become finally binding only when ratified by Congress. This would have placed the States, in respect to their capacity to make compacts with each other, on the same footing as independent nations, contracting through agents having full powers, except that the powers of ratification would have been in a third party. If the Constitution had been thus framed, States might have entered into compacts, and been so far bound by them, before ratification, as independent nations are now understood to be bound by a compact made by their respective representatives, having full powers. And it may be remarked in passing that in that case, before ratification, either may withdraw its consent, if it shall appear that from mutual mistake and without any deception, conditions known to both parties to be essential, have not been complied with.

Lawrence's Wheaton, 452, and Note.

But in point of fact the constitutional restraint on the power of the States goes much further than this.

"No State shall, without consent of Congress, enter into any compact or agreement with another State."

It is not the requirement of some act to be done by a third party to give complete validity and effectual operation to a compact, leaving the parties free to make one.

It is a prohibition to contract. It is a disability to enter into the relation of parties to a compact. They may negotiate; they may ascertain and express a mutual willingness to agree to the same thing, but this is all; they can "enter into no compact or agreement."

It is said Congress may assent after the States have framed and settled the terms of their compact. Not only is this true, but it may be correctly said that, considering the evident purpose of the Constitution in requiring this assent, Congress should never give it until the terms of the proposed compact have been fully framed and settled.

But the time when Congress may give its consent is not material. The essential fact is that, until its consent is given, no compact or agreement has been entered into by the States; the relation of contracting parties does not exist; the obligation of a contract has not been created.

The effect of this provision of the Constitution is to render the consent of three parties absolutely necessary to the formation of a compact or agreement between two States. And it is a principle of universal application in all systems of law, whether public or municipal, that, to form an effective compact or agreement, there must be a reciprocal and concurrent consent of all the parties whose consent is necessary. Not that the consent of all must be signified at the same time. -- One may express its consent to-day, another to-morrow, the third the next day. But the consent of each must be an existing fact down to the moment when, by the consent of the third necessary party, there is brought into existence a union of the three minds. And if, before any compact is entered into by such reciprocal and concurrent consent of the three parties, one of them withdraws its assent and refuses to proceed further, there can be no compact or agreement entered into. If this can be made clear by reasoning that it is upon a mere statement of propositions so plain, let us inquire at what point of time Virginia is supposed to have entered into the compact necessary to cede a part of its territory. Certainly not before the assent of Congress was given. The constitutional disability to enter into any compact or agreement fixes that, and the only remaining supposition is that Virginia entered into a compact to cede these counties at a time when the assent of Congress was given, although for that time the Legislature of Virginia had, for ample and sufficient reasons, repealed all enactments looking to such a compact, and had clearly and expressly declared that no such cession should be made.

In another connection I shall have occasion to refer more particularly to the sufficiency of these reasons, and to the nature and extent of the power of Congress in reference to compacts between States. Here it is enough to say, that when Virginia withdrew its assent, no compact existed, and none could be made afterwards without its assent.

I now desire the attention of the Court to the grounds assumed by the counsel for West Virginia.

The first position is, that, if this cession of territory by Virginia to West Virginia could be made only by compact or agreement, the consent of Congress thereto was not required by the reason or spirit of the Constitution, because only the States of Virginia and West Virginia can have any interest in its subject-matter, and they adduce reasons why this cession of territory can affect neither the United States, nor any other of the several States of the Union., These reasons may or may not be sufficient.

Whether sufficient or not is purely a political question, which this Court has neither the means nor the authority to determine. It depends on no system of law which this Court can administer. It is too clear for argument, that Congress alone has authority to decide it. The Constitution does not say the States may enter into such a compact as this Court may consider concern only the parties to the compacts; but no State shall enter into any compact with another State without the consent of Congress.

But it is insisted that Congress did give its consent to the cession of those two counties by Virginia to West Virginia when Congress admitted West Virginia to the Union.— This assertion is rested upon two provisions, existing in the Constitution of West Virginia, when that States was admitted into the Union by Congress.

The second section of the first article of the Constitution of West Virginia offered to the people of the proposed State for their adoption, contained a clause, that if the majority of the people of a district, composed of the counties of Pendleton, Hardy, Hampshire and Morgan, should vote in favor of adopting that Constitution, that district should be included in West Virginia; and if the majority of the people of another district, composed of the counties of Jefferson, Berkeley and Frederick, should also vote in favor of the adoption of that Constitution, and the first district should be included, this last mentioned district should also be included in West Virginia.

A majority of the people of the district first named did vote in favor of the adoption of that Constitution; and, when the assent of the Legislature of Virginia was given to the formation and erection of a new State within the jurisdiction of Virginia, the district first named, composed of the counties of Pendleton, Hardy, Hampshire and Morgan, nominatim, is included within the limits of the proposed new State, to the erection and formation of which, Virginia, by its Legislature, assented.

But a majority of the people of the other district, composed of the counties of Jefferson, Berkeley and Frederick, did not vote in favor of the proposed Constitution; and the last named district was excluded from the limits of the proposed new State by the act of the Legislature of Virginia assenting to the formation and erection of a new State within the jurisdiction of Virginia.

And when the new State was admitted to the Union, the act of Congress (12 Sts. at Large. 633), reciting the consent of the Legislature of Virginia to the formation within the jurisdiction of the State of Virginia of a new State, consisting of certain enumerated counties, and including Pendleton, Hardy, Hampshire and Morgan, but excluding Jefferson, Berkeley and Frederick, thereupon admits that new State into the Union.

These are the facts; and the argument is that Congress, by admitting the new State gave its assent to that provision of its constitution which looked to the acquisition of the three counties of Jefferson, Berkeley and Frederick, and that, if the people of two of these counties have since voted to become part of the State of West Virginia, this action is within the consent of Congress.

But this argument is founded on a total disregard of the substantial facts. This second section of the first article of the Constitution of West Virginia was merely a proposal addressed to the people of two distinct districts, on which they were invited to act. The people of one district accepted the proposal. The people of the other district did not accept it. The first district became a part of the new State so far as the constitution of West Virginia could make it a part thereof, and the Legislature of Virginia included in its assent, and Congress included it in its admission to the Union. The people of the other district did not accept the proposal; and therefore neither the Constitution of West Virginia, nor the assent of the Legislature of Virginia, nor the consent of Congress, had any application whatever to the second district. It was no more a part or even a proposed part of West Virginia, by reason of anything in the Constitution of West Virginia, than by reason of the assent of the Legislature of Virginia or the consent of Congress, each of which excluded it. -- For though the second section of the first article of the Constitution had proposed to include it, the proposal was accompanied with conditions which were not complied with; and when the Constitution was presented to Congress the proposal had already been rejected, and had no significance or effect whatever.

And the only argument left to the counsel is this: that because the proposed new State had once offered to include this district on certain conditions, which offer had been declined, so that it came to naught before the State applied for admission; yet Congress, when it admitted the new State, consented that this district might be included in it.

It is plain that Congress assented to the admission of the new State of West Virginia to the Union with certain described territory which excluded the district now in question: that if Congress had any knowledge of a proposal in the Constitution for the new State to include other territory, it knew it was a rejected proposal -- and therefore that it was in no way called on to consider, and, in fact, could not have considered the question, whether the territory now in question should be allowed to belong to the new State. It did not belong to the new State. It did not belong to the State, and therefore Congress could not have passed on the question whether it should or should not be a part of it.

Indeed, the learned counsel cannot and do not so contend. What they say is that because West Virginia in its proposed Constitution held out to the inhabitants of this district an opportunity to become a part of the new State, which opportunity they did not accept, Congress, by admitting the new State to the Union, must be considered to have given its assent that at any time thereafter and under any circumstances which might exist, not only that district, but any of the several counties of which it was composed, might be ceded by Virginia to West Virginia; and that such cession might be made, not on the terms held out by the second section of the first article of the Constitution of West Virginia, that a majority of the voters of the district composed of the three counties of Jefferson, Berkeley, and Frederick, should vote in favor of the proposed Constitution, but only if a majority of the voters of some one or more of these counties, severally, should vote in favor of annexation to West Virginia.

How Congress can be supposed to have assented to something which, so far as appears, had not then been conceived of, and which is greatly and substantially different from anything which had then been conceived of, I leave the learned counsel to show.

The counsel for West Virginia also rely on another clause found in the constitution of that State when it presented itself to Congress for admission to the Union, which is in these words:

"Additional territory may be admitted into and become part of this State with the consent of the Legislature."

When a new State formed and erected within the jurisdiction of an existing State presents itself to Congress for admission to the Union, that body had four things, and four things only, to consider. The first is, whether the legislature of the State within whose jurisdiction the new State has been formed, has given the consent required by the Constitution. The second is, whether its constitution is a republican form of government. The third is, whether that form of government has been freely, fairly and deliberately adopted by its people. And, lastly, whether the interests of the United States require the admission of the new State to the Union.

Particular provisions of the Constitution of the new State, having no connection with either of these four subjects, are wholly aside from the considerations of Congress. They concern exclusively the people of that State. What powers they may choose to confer on the legislative, executive or judicial branches of their government, so long as such powers are in harmony with a republican form of government, and can have no prejudicial effect on the interest of the Union, is a matter for the people of that State alone to determine. And when Congress admitted the State of West Virginia into the Union, it must be considered that Congress did not find it inconsistent with the general interests of the United States, or with a republican form of government, that the people of West Virginia should grant to the legislative branch of their government the power to consent that additional territory should become part of that State.

It must be conceded that the admission of the State to the Union did express the consent of Congress, that the people of the State of West Virginia might properly confer on their Legislature all the power they could confer to acquire additional territory. But surely it is a groundless assumption that Congress thereby gave its assent that the new State might acquire additional territory in a manner prohibited by the Constitution of the United States. Did Congress assent that the new State might wage war, and acquire additional territory by conquest? This will not be pretended, for each State is prohibited by the Constitution from waging war. But not more expressly than from acquiring new territory by a compact, without the consent of Congress to that compact.

Congress consented that the people of the State might confer on their legislature all the power to acquire additional territory which the people had, but not all the power Congress had to assent or dissent when the case should be formed so as to be intelligently acted on. Congress had no ability to make such a grant of power. It is imperatively bound by the Constitution to have before it some particular compact for its assent or dissent; and a general license to a particular State to make any and all compacts with any other State for the acquisition of territory, without the consent of Congress would be futile.

And it would be something which there is no plausible reason to contend that Congress intended to do in this case. The act admitting West Virginia to the Union expressly declares, as all such acts do, that it is admitted "on an equal footing with the other States in all respects whatever." What ground is there for the assertion that, instead of being on an equal footing with the other States in all respects whatever, it came in with an unlimited license to make compacts to acquire territory without the consent of Congress?

We have now arrived at a distinct train of argument, which, while it admits that the territory and jurisdiction of these two counties could be ceded and acquired only by compact, and that the consent of Congress to such compact was necessary, endeavors to establish that the resolve of Congress, giving its assent to their cession, passed March 10, 1866 , more than three months after Virginia had withdrawn from the proposed compact, was effectual to complete the transfer.

The first position is that this resolve, expressing the consent of Congress to the cession of these two counties is a curative law, which relates back to the moment of time when the two States had agreed on the cession of this territory, and makes the compact, then in fact existing, valid and complete from that moment.

It is respectfully submitted that this position rests only on a misconception of the respective powers and functions of the States and Congress under the Constitution; and that it will be completely untenable as soon as those powers and functions are clearly seen.

It is the obvious meaning of that clause of the Constitution which relates to compacts between the States, and so it has been repeatedly declared by this Court, that the States retained the same powers to make compacts with each other concerning their respective territory and jurisdiction as belong to independent nations, subject only to the restriction placed on such compacts by the Constitution.

That restriction is a positive prohibition to enter into any compact or agreement without the consent of Congress.

On the one hand the two States cannot, by their own will, form a compact. On the other hand Congress can neither make a compact for two States, nor in any particular change the stipulations or terms of any such compact. Its function is simply and solely to assent to, or dissent from, what two States are willing to agree on.

This is not only apparent on the face of the Constitution itself, but has been so declared by this Court, in Green vs. Riddle, 8, Wheaton and Rhode Island vs. Massachusetts, 12 Peters.

Congress, then, has no general legislative power on the subject of State compacts.

In the language of this Court (12 Peters, 726) the power of Congress "is limited in express terms to assent or dissent when a compact or agreement is proposed to them by the States."

With the exception of this power to assent or dissent to a compact otherwise complete, Congress has no more control over anything necessary to the formation of a valid compact between two of the States of the Union, than it has to control the formation of a compact between two foreign and independent nations.?

The States alone have the control over whatever is necessary to the formation of a compact save the assent of Congress; they alone have power, each acting for itself, to "Enter into" a compact. Neither can exert this power without the consent of Congress. But whether exerted, or not exerted, must depend solely on the will of each; and if what has been done by one of them, before the power to enter into an agreement or compact springs into existence by the consent of Congress, is not sufficient to amount to a concluded agreement on its part, Congress can no more make it sufficient than it can make the supposed compact. Indeed, if it could, against the will of one of the States, make that a compact which a State then expressly and distinctly dissented from, then it would exert a power not to consent that the two States might enter intop that compact, but to make a compact for one of them against its will.

The fallacy of the argument comes to the surface with the terms used in stating it. -- The position of the learned counsel for West Virginia is this: "The effect of the resolution" (of Congress) "is to legalize the transfer from the time it was completed by the action of the States. It relates back to the time of the transaction which it ratified, and has the same legal effect as if it had been passed on the day the State of West Virginia accepted the transfer."

This assumes there was a "transfer completed by the action of the States." How could there be a transfer of territory from one State to another State completed by the action of the States at a point in time when the Constitution prohibited these States from "entering into any compact or agreement."

At the time when it is falsely assumed the two States were agreed to make and accept the transfer, they were incapable of doing so.

There was no agreement between them. Virginia was willing to agree to the cession, provided certain conditions should be complied with.

Even in the distressing and overruling necessities of the civil war, by which the people of the State were oppressed, the legislature was not unmindful of the duty of every civilized State to preserve its territory and protect its people; and not to alienate them by cession save under the pressure of some necessity, or for their own advantage with their own consent. With it, ascertained by means then thought sufficient, Virginia was then willing to consent to the cession. But when it became known that this fundamental condition had not been complied with; that the means provided by the legislature to ascertain its performance, had through fraud and deception proved wholly inadequate; and that the cession if made, would be against the will of the people of those counties, then with as much clearness of as language is capable of, Virginia dissented, and wholly withdrew from the proposed compact. What completed agreement then existed for Congress to assent to? Manifestly none.

It remains to advert briefly to the past position on which the counsel for West Virginia rely, to show that the necessary compact existed between the two States.

But is that the resolve of Congress, passed March 10, 1866 , is conclusive evidence that at its date the two States were agreed upon the cession of the territory and jurisdiction of these two counties.

As some reliance is placed on the particular terms of this resolve it is necessary to see what its terms are.

"That Congress hereby recognizes the transfer of the counties of Berkeley and Jefferson from the State of Virginia to West Virginia; and consents thereto."

The argument is, first, that this resolve "was manifestly designated to have a retrospective operation and to overreach any attempt which might have been made to invalidate it." and secondly, that as Congress can only consent to an existing compact between two States, this resolve concludes all inquiry by this Court upon the question whether there was a compact then existing between the two States.

The first branch of this argument has been partly answered. It has been shown that the only power of Congress is a power to assent or dissent when a compact is proposed by two States.

If this resolve was, either manifestly of covertly, designed to have any other operation than this; if, as is asserted, it was designed to overreach any party, or to accomplish anything, except a simple assent to a compact mutually and freely proposed by two States for the assent of Congress, then it was designed to accomplish something not within the powers of Congress. Whatever may be its language, the only power of Congress was the power of assent or dissent to a compact into which two States then desired to enter. The power to overreach one of the States; the power to control its action; the power to disregard its dissent, and to convent it into its assent, did not exist, and it would not be so respectful to Congress as this Court certainly would be, to attribute to it an intention to attempt to do what surely it ought not to have desired to do, and had no power to do, even if it had so desired.

If the two States desired the consent of Congress that they might "enter into a compact or agreement" when this resolve was passed, there was a subject matter on which the resolve could constitutionally operate. If, at that time the two States were not fully agreed on the subject-matter of the resolve, by force of it, they might thereafter "enter into" the compact or agreement it contemplates. But the consent of Congress that two States may enter into a compact or agreement cannot make such a compact or agreement, or take the place of that free consent ot either [page 2] of them which is necessary to constitute a compact or agreement between them.

Let us not lose sight of the essential ideas which belong to the subject. The contracting parties are the two States. Though they cannot become contracting parties without the consent of Congress, though they cannot "enter into" any compact or agreement without that assent, they alone can frame the compact; and, if they do not mutually and concurrently agree, at a time when they have capacity to enter into an agreement, there can be no agreement. And, under the Constitution, Congress has no more power to supply the want of the consent of one, or by its will to treat the dissent of one as its assent, than it has to supply the consent of both or treat their joint dissent as their joint assent.

But the learned counsel insist that the resolve is conclusive evidence that a compact or agreement of cession was in point of fact proposed to Congress for its assent, and was before that body for its assent, at the time the resolve in question was passed; and that this Court cannot inquire and judicially ascertain whether the two States were then agreed on the proposed cession.

The substance of this argument is, that because Congress has given its assent to the transfer of the territory and jurisdiction of these two counties by the one State to the other State, there can be no inquiry here whether the two States, or either of them also assented.

Let it be remembered that this technical objection to preclude inquiry is made in a case in which it had been already shown, upon admitted facts, that there was no compact or agreement entered into by the two States to transfer this territory.

It must also be remembered that whether, upon admitted facts, a compact or agreement was concluded between the two States, is in this case, and under the powers possessed by this Court, purely a judicial question. It depends exclusively upon the public law which governs compacts of independent States, modified only by the Constitution of the United States.

Upon this judicial question, it is expected this Court will decide that because of this resolve of Congress, there was a concluded compact between two States, when it knows there was not such a concluded compact.

The first and most practical objection to this assumption is, that, in effect, it confers on Congress the power to make compacts between States, which this Court is bound judicially to declare the existence of, and to engage the executive power to carry into execution.

It is not possible to stop short of this. If Virginia in this case cannot call on this Court to decide upon admitted facts and principles of law known to the Court, whether a concluded compact existed, because Congress has given its assent to such a compact, neither could West Virginia make a similar requirement. If one party is estopped either or both are estopped, in this and all other cases in which the existence of a concluded compact comes in question; and in no case can this Court inquire into the existence of a compact between two States, if Congress has given its consent to a compact.

And the necessary result is, that in place of the powers of States to make compacts with each other, which this Court has declared were preserved by the Constitution, subject only to the consent or dissent of Congress, we have the power of Congress to declare that compacts exist, and then to consent to them, and so to end the matter.

It is respectfully but confidently submitted that no such estoppel binds the States or the action of this Court upon their compacts.

Whether a binding compact has been made between two States is purely a judicial question. The consent of Congress is necessary. It may be given before, or it may be given after the two States have finally assented. -- The order in which the three necessary parties may finally severally consent, is not fixed either by the Constitution, or by the nature of the transaction. Each of the three parties must concurrently consent. And the consent of each at such time and under such circumstances as the law requires, is a mere matter of fact, which, when shown, is to have its just and proper legal operation. But the consent of one of the necessary parties can have no just or proper legal operation without the consent of the other necessary parties; and this is equally true of each of them. The consent of Congress can no more dispense with or stand legally in the place of the consent of either of the States, than the consent of the States can stand legally in the place of the consent of Congress, and no technical rule of estoppel can supply the want of one any better than it can supply the want of the other.

With these principles there is nothing in the resolve of Congress which necessarily conflicts.

"Congress hereby recognizes the transfer of the counties of Berkeley and Jefferson from the State of Virginia to the State of West Virginia, and consents thereto."

Having in mind that the only power of Congress was to assent to a compact of transfer proposed by the two States, and that Congress could neither make a transfer nor assent to one unless the two States were consenting thereto, the only interpretation of this resolve respectful to Congress is, that it gave its assent to the transfer, provided the action of the two States had been, at the time of the resolve, or should be after its date, such as to effect the transfer with the assent of Congress. To assume that it meant to assent to a transfer though there was not then existing, and though there should not afterwards be any concluded agreement between the two States, is to attribute to Congress the intention to assert power it did not possess; and the only other alternative is equally objectionable. It is that because the Constitution had conferred on Congress the power to assent or dissent from the compacts of the States, this Congress arrogated to itself the judicial power to determine, conclusively, that there was a concluded agreement between two States, awaiting only its consent to be made legally binding on the parties.

It is submitted that neither of these assumptions is admissible. Congress did not intend to adjudicate upon the existence of a concluded agreement, nor to enact that an effectual transfer of territory might be made, against the will of either of the States, whose concurrent consent was necessary to that transfer.

I have now to consider some grounds of defense to this bill, which we certainly had not anticipated would be assumed by West Virginia, but which we have no reluctance to submit to the judgment of this Court.

The first of these is, that the Legislature of Virginia which passed the act of December 5, 1865 , repealing all former laws relating to the proposed cession of these counties, and finally withdrawing from the proposed compact, was not the lawful legislative power of the State of Virginia, and this act cannot be treated by this Court as a law.

By the 3d section of the 4th article of the Constitution "no new State shall be formed or erected within the jurisdiction of any other State, without the consent of the Legislature of the State concerned, as well as of the congress."

The act of congress (Dec. 31, 1863 , 12 Sts. at Large, 633), for the admission of West Virginia to the Union, recites: "Whereas the Legislature of Virginia by an act passed on the 13th day of May, 1862 , did give its consent to the formation of a new State within the jurisdiction of the said State of Virginia." From this act the following are inevitable deductions:

1st. That on the 31st day of December, 1862 , there was a "State of Virginia."

2d. That the new State was to be formed "within the jurisdiction of the said State of Virginia -- out of that portion of Virginia known as West Virginia."

3d. That there was a "Legislature of Virginia" capable of exercising one of the highest functions of legislative power, by assenting to the erection of a new State within the jurisdiction of the State of Virginia.

It is admitted on the brief of the defendants' counsel, that Virginia had a government which was recognized by Congress until the close of the 37th Congress, and a part if not all the 38th Congress; but it is asserted that the Legislature which met on the first Monday of December, 1865 , Congress has steadily refused to recognize.

It is plain that when Congress has once recognized a government as lawfully established in a State, no further recognition is necessary for any judicial purpose so long as the same government is perpetuated, according to the forms and by the means provided in its Constitution. Under all American Constitutions those representatives of the people who personally exercise legislative power, cease to hold their offices at fixed times, and are either re-elected or others chosen in their stead. But these changes of the natural persons who represent the people in legislation are not changes of the established government. They are changes in conformity with the organic law of the government and which the organic law must provide for to be republican in form. The government of the United States is the same government as went into operation in 1789 , though there have been forty different Congresses assembled under it.

It is manifest therefore that a recognition by Congress, in 1862 , of the Legislature of Virginia as then the legislative power of a lawfully established government of the State in the Union, is a recognition not of a particular body of natural persons, but a recognition of a lawfully established Constitution of government, republican in form, and capable of perpetuating itself through elections by the people, and so long as that same government, without any essential change in its organic law, has perpetuated itself through regular election made in conformity with its organic law, so long the effect of the recognition necessarily continues. For notwithstanding changes in the natural persons who exercise its powers, the government which was recognized continues unchanged -- the same in 1865 as it 1862 .

That the government of Virginia, recognized in 1862 , has perpetuated itself by regular elections, made in conformity with its organic law down to December 5, 1865 , when the act withdrawing the consent of Virginia was passed by its legislature, is not capable of question.

I do not suppose this involves any matter of fact of which the Court will not take judicial notice. If it does, all such matters of fact are confessed by the demurrer to the bill, which alleges that this act was passed by "the Legislature of the State of Virginia."

But I suppose the Court will take judicial notice and make judicial presumptions concerning all facts and laws necessary to cover this question whether the same government recognized in 1862 has been regularly perpetuated down to December 5, 1865 .

The case is this: In 1862 , by the recognition of Congress, there was a lawfully established government of Virginia, republican in form, having as one of its branches a legislature.

That government was organized under a written constitution, of the existence and contents of which this Court has judicial knowledge. That constitution provided for elections by the people of senators and representatives at stated times. And when it appears, as it does by the allegations of this bill, that by the Legislature of Virginia, on the 5th of December, 1865 , the act now in question was passed, the presumption, omnia rite esse acta covers the whole ground. This legislature must be taken to have been duly elected, assembled and organized so as to pass this law, as clearly as the Legislature of Massachusetts was presumed to have been duly elected, assembled and organized to pass the prohibitory liquor laws, on which the Court has recently acted.

Indeed no question is made on this subject by the defendants' counsel. What they rely on is not that the same government, recognized by Congress in 1862 , as the lawfully established government of Virginia, was not continued in existence without any change whatever down to December, 1865 , but that Congress withdrew its recognition of that government

Their argument is, that Congress passed a "concurrent resolution" on the second day of March, 1866 , declaring that no senator or representative should be admitted into either branch of Congress from the State of Virginia.

The first answer to this is, that if this were a mortal blow, it was not struck until more than three months after the act in question was passed by the Legislature of Virginia. The date of the act was December 5, 1865 ; that of the "concurrent resolution" was March 2, 1866 .

Certainly it is incumbent on defendants to show not only that the recognition of this existing government of the State of Virginia by Congress was at some time, and to some extent, or for some purposes withdrawn, but that it was at such a time, to such an extent, and for such purposes withdrawn, that the Court cannot recognize the act of December 5, 1865 , as a valid law.

The defendants rely on the refusal of each branch of Congress to admit representatives from Virginia. But each branch of Congress is not the legislative power of the United States. Congress can manifest the legislative will of the people of the United States only by a law or resolution to which each branch separately assents, and which is either signed by the President, or passed by the constitutional majority without his signature.

But not to dwell on this, exclusion of representatives by the one house and senators by the other house of Congress has no necessary connection with the lawfulness of the State government from whence they come. Their admission necessarily carries with it an assumption that there is a lawfully established State government under whose immediate authority they have been regularly elected.

But their exclusion does not necessarily imply that there is not a lawfully established government capable of legislating for the State concerning its own internal affairs. -- Such exclusion may be rested by the majority which sanctions it upon considerations of policy and expediency which have no reference to the question whether the people of a State shall continue to live under a lawfully established government, already recognized by Congress.

It may be thought, that having references to all the circumstances, it is not safe to admit the people of the State to participate in national legislation by their representatives; or then, inasmuch as they are not now in possession of the privilege, it is expedient not to all them again to enjoy it, until they shall have complied with certain conditions. Many different motives and reasons may be supposed to act on different minds to induce such a result.

But what necessary connection is there between this result, or the motives or reasons inducing it, and the abrogation of the lawful government of a great State, leaving its people without law? For it must be remembered that if through the action of Congress the legislative power was gone, the executive and judicial powers went with it; and there was no more any law within its borders.

The government recognized by Congress in 1862 , was in December, 1865 , the only government of Virginia. If that was not the lawfully established government, capable of making, applying and executing the laws, then it had no lawful government, and the supposition is, that because each branch of Congress declined to receive representatives from Virginia, for reasons which this Court cannot know, therefore it was the collective legislative will of the people of the United States, that the people of Virginia should have no lawful government at all.

So monstrous a conclusion cannot be reached from the narrow premises afforded by this concurrent resolution of Congress, which has no necessary connection with the existence of a lawful State government, and is fully satisfied if confined to the single and temporary object it proposed.

I have thus far been attempting, I trust successfully, to answer the position that the Legislature of Virginia, which passed the act of December 5, 1865 , withdrawing the consent of the State to the proposed cession of these two counties, was not a body which this Court can recognize as capable of passing a law. I respectfully submit the position wholly fails.

FIRST. Because the action of Congress which is relied on was not had until after the passage of this law.

SECOND. Because this action of Congress is consistent with the continuance of the same lawful government of the State, including, of course, its legislature, as was recognized by Congress and the President as the existing lawful government of the State at the time West Virginia was admitted to the Union.

But there is a question raised by the argument of the defendants' counsel, of a character much more grave, though I believe it will be found not more difficult of a judicial solution than that last discussed.

Their position is, that, though Virginia was a State in December 1862 , when Congress admitted West Virginia into the Union, yet, by force of the recent legislation of Congress, Virginia is not now a State and, therefore, not capable of prosecuting a suit in this Court under the grant by the Constitution, of original jurisdiction to this Court, which enables States to sue here.

The legislation referred to consists of the two acts of March 2, 1867 , and March 23, 1867 , commonly called the reconstruction acts, and the argument is, that by force of these acts, Virginia ceased to be a State, and so this suit must fail.

I am not unacquainted with the theories upon which the powers of Congress to pass these acts are rested. They are as I understand them, that a limited government, possessing only the powers granted to it by a written constitution, may, by putting down a rebellion against its authority, acquire the absolute and unlimited powers of a conqueror over a great part of its own territory and people. That it may subdue a part of its people, not to obedience to itself nor to its limited authority, but to submission to a government completely absolute. That it may acquire by arms that unlimited authority over a large part of its territory and its people, which is wholly and necessarily inconsistent with its own nature and character, and with the fundamental principle of its own existence. And that it may hold and exercise this absolute power so long and in such ways and to such extent as may suit its own sovereign and uncontrollable will. And that this unlimited power and uncontrollable will are vested in and to be exercised by that Congress of the United States which the Constitution created and whose powers it defines. This is the theory of constitutional law put forth here, as well as elsewhere, in support of this legislation.

For reasons which will presently appear, I do not intend to enter into any discussion of this general subject. These reasons will show that this cause calls for no such discussion. And strong as is my conviction that the entire theory is radically false, and serious as it my apprehension that the action of Congress upon it must hereafter be attended with consequences deeply injurious to the preservation of constitutional government in our country, yet my duty here is to argue no question which this Court is not required to pass upon to arrive at a decision of this cause.

To render clear what the Court is to pass upon, under this branch of the case, it is necessary to bring into view some things already shown, and to connect them with other matters which relate to the same subject.

It has already been shown that in December, 1862 , after the civil war had been more than eighteen months on active progress, and after numerous battles had been fought upon its soil, and while a large part of its territory was in the possession of armies hostile to the United States, Virginia was still a State of the Union, having a lawfully organized government recognized by Congress and the executive as in harmony with the Union. This is too clear for controversy, and has not been controverted. West Virginia exists only by reason of its truth.

It has been shown that the lawfully organized government of this State of Virginia, recognized by Congress and the executive as the government of a State in harmony with the Union, was continued and perpetuated in accordance with its organic law until after all forces hostile to that government and to the United States had been subdued.

On the ninth day of May, 1865 , (13 Sts. at Large, 777), the President of the United States, in discharge of his constitutional duty to see that the laws of the United States are faithfully executed, issued his proclamation relating solely to the State of Virginia, ordering the Secretaries of State, of the Treasury and the Interior, and the Postmaster General to put in force all the laws of the United States connected with their several departments; and that the District Judge of the United States proceed to hold Courts within the said State in accordance with the provisions of the acts of Congress; and, finally, it is ordered, "That, to carry into effect the guarantee by the Federal Constitution of a republican form of State Government, and afford the advantage of security and domestic laws, as well as to complete the re-establishment of the authority and laws of the United States, and the full and complete restoration of peace within the limits aforesaid, Francis H. Pierpont, Governor of the State of Virginia, will be aided by the Federal Government, so far as may be necessary, in the lawful measures he may take for the extension and administration of the State Government throughout the geographic limits of the said State." [continued below]