Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1865-09-28

of the counties of Jefferson and Berkeley, on the
Fourth Thursday of October, 1861, and at the same
time delegates were elected to meet in Convention
also at Wheeling on the 18th of orember following
shouId the popular vote adopt the project of the for
nation of the new State. The new organization wa:
resolved upon and the Convention selected to form
its Constitution assembled at the time and place ap
pointed and proceeded with the work assigned il.
The Constitution of West Virginia. which name was
| substituted for that of Kanawha,) was accordingly
adopted on the 18th of February 1852, and ratified
by vote of the people taken on the Srd OF April OF
| the same year. This instrument thus framed was
/ accountable TO the Legislature of West Virginia
and its consent for the formation and erection OF
the State of West Virginia was obtained, and re-
commendation made for its admission into the In
| ion The Congress on the 3lst OF Drcember, 1867,
passed the act of admission but on conditions set
forth in the said act, which provides that whenev-
er the people of West Virginia shall through Con-
vention and by vote TO be taken and an election ia
be held within the limits of said State at such time
| as the Convention may provide, change It's system
of gradual into immediate emancipation, and that
fact shall be certified cover the hand of the Presi
dent of the Convention" it shall be lawful for
the President of the United States to issue his proc
amation stating the fact and then this acp (of adj
mission) "shall take effect and be in fource from
and after sixty days from the date of the proclama
/ ton |" The changes required having been made,
(but whether as indicated by the Congress or not,
cannot be ascertained, the President of the United
! States by his proclamation of the 10th OF April,
! 1863, declared that the State would become men,
bero the Union at the expiration OF sixty days from
the date of his said proclamation.
The State thus admitted contains, according to
! the act of Congress for its admission forty eight
! counties, which are all enumerated, beginning with
Hancock and ending with Morgan.
The Constitution of West Virginia itself names
only forty-our counties at the time of its forma-
ton actually composing the State and wbichwe pre-
sumo were representedn the convention thatframed
the Constitution of the State,) but by provision
of the LIST Art of the Constitution other counties by
| compliance with certain conditions therein named
should also become part OF the territory and be
placed under the jurisdiction of the State of West
Virginia This provision will be referred to here
after After this brief statement of the origin OF
the State, let at once approach the examina-
ton of the interesting question which has in part
brought together viz: to which of the two States
Virginia or West Virginia, do we properly and le-
! gallv belong?
That new States NAV be created within the ju-
risdiction of old ones is proposition about which,
we think, there can be no reasonable doubt. The
Constitution of the United States, Art. A. Sec. 3,
holds the following language: "New States may
be admitted by the Congress into the Union; 6utno
State shall be formed erected within the Ju-
risdiction of any other State any State be form
ed by the junction of two States or parts of
States without the consent of the Legislature of the
States concerned, well as the Congress" ltwould
then under the provision Of the foregoing sec
ZION Oh CONSTITUTION OI the DtdIcs thcIc
are three parties to the formation of new State
where it is to be created within the jurisdiction Of
old State, viz: the old State the people of the
territory of the proposed new State and the Congress
of the United States. Without and until the con
sent OF all three of these is given the proposed
ganizatiOn has neither life power and, is there
fore without authority to exercise any of the func
tons which belong to separate and distinct govern
ment.
In the case in hand then. where portion of the
/ 4 e 4 4 L 4
although the consent of the old State, (Eirginia)
was obtained and Constitution actually form
ed and adopted, vet according TO this provision Of
the Constitution of the United States the new State
West Virginia) was not entitled to extend its ju-
risdictiOn over the territory and people proposed
to be embraced by il until act of Congress rat-
fving the creation of the State obtained
Uutil that time, there in fact mere proposition
to Congress of certain number Of people inhabi-
ting certain territory within the old State OF IT.
ginia. 10 erect themselves into a State to be
governed, when Congress should have assented to
IT, by the Constitution thus adopted and presented
by them. The case is perfectly assimilated TO the
States of the Union whose custom it is in framing
their new Constitutions to submit them to vote OF
the people. The power of adopting or rejecting the
Constitution in that instance, lies with the peo
pie to whom il is refered-if adopted ii becomes the
organic law of the State from the time of its adop
ton but if rejected, it is imperative and never was
entitled to obedience. In the instance of the organ
ing power is with Congress, and the extent Of the
power is the same.
So that il is manifest that there was no State of
West Virginia at all until Congress vitalized it by
exercise offs Constitutional power, and sanction
ed its creation. From that moment and not until
then isit entitled TO be regarded seperate organ
iZatOn orentited TO exercise the functions OF sep
crate and distinct State.
But as if to remove all doubt as to the correctness
of this proposition, the Convention of Restored Vir
ginia, in the very ordinance authorising the forma
ton Of the State reserved 10 itself full and un
interrupted jurisdiction within the limits Of the pro-
posed State until Congress should admit ii into
the Union The l1th Section of that ordinance is
as follows: "The Government of the State Of Vir-
ginia as reorganized in June last shall retain with
in the territory of the proposed State undminished
and unimpaired all the powers and authority with
which il has been invested until the proposed State
shall be admitted into the Union by the Congress Of
the United States"
When that act of admission was passed and its
terms were, in every respect complied with, there is
no doubt (all other antccedent proceedings being
regular and iormal) the territory and people COM
posing the State Of West Virginia passed from the
control and Government OF Virginia. But what
was that territory and who were those people By
reference to the act Of admission we find that al
though the counties forming the State of West Vir
ginia are therein specifically enumerated, neither
the county of Jeffersan Berkeley is named, and.
part of the State of Virginia But il is alledged
that provision to include them was made in the Con-
stiution of West Virginia itself. Let us turn then
to that provision and see how far the political re-
lations of these counties have been affected by it
The clause referred to provides that if at the time
at which the Constitution To be submitted to
vote of the people ga majority Of the vote in the
district composed of the counties of Pendeton, Har
dv Hampshire and Morgan, shall be in favor of the
adoption of this Constitution the said four counties
shall be included in and form part Of the State of
West Virginia and if the same shall be so included,
and majority of the votes cast at the said election
or elections in the district composed of the counties
of Berkeley Jefferson and Frederick, shall be in ia
vor of the adoption of this Constitution then the
three last mentioned counties shall also be included
in and form part of the State of West Virginia"
Thus il will be perceived that the connection of the
three last named counties with West Virginia de-
pended upon certain well defined conditions, viz:
LIST. That Pendleton. Hardy, Hampshire and Morgan
should participate in the election and by majority
of the votes cast should adopt the Constitution Of
West Virginia; I'd. That they Berkeley, Jefferson
and Frederick and a district, should also take
part in the election and by majority of the votes
cast accept the same Constitution; and 3rd. That
they should so vote on the day named for the sub
mission of the Constitution to the action of the peO