The New era. [volume] (Martinsburg, W. Va.) 1865-1871, 1865-10-05


approval of the West Virginia Constitu-
ton, then we must conclude that Con-
gress has authorized State to acquire
territory, even from foreign powers, by
treaty, although absolutely forbidden to
make treaties. Such stretch of con-
struction would only be more palpably
absurd than that contended for astot the
addition to the territory of West Nir-
ginia of the counties of Berkeley and
jefferson under the clause Of its Consti-
tuition referred to. The only inference
is, that sanction was given to the clause,
so far only as it relates to the consent OF
the Legislature-not that the consent of
Congress would not also be required in
each case.
I presume-if not very deliberately
considered by the convention of West
Virginia or by Congress-the clause was
so Incorporated in it's Constitution, in
order to exclude the conclusion, that the
limits'o theState, under its Constitution,
might not, thereafter be extended by
the Legislature beyond the enumerated
forty four counties in the second section
OF article LIST. the seven counties to which
i have alluded in the same section, and
the bed of the Ohio River-and to place
beyond dispute the right Congress con-
senting) to add other counties of Virginia
to the State in future. However that
may be, the clause is in discord, taken
literally with the requirements OF the
Constitution of the United States and is
none the less fatal to its binding efficacy,
without special consent on the part OF
Congress-its former consent being linn
tied to vote not taken at the time APP
pointed and applying to the entire Dis
trictof Berkeley, Jefferson and Frederick
or no part of it.
Thus it is, in my view clear, that
Berkeley and Jefferson are not Constitu-
tionally a part of West Virginia, and
such, / am informed, was the conclusion
of the committee on Elections in Con-
gress, in the winter of 1854, in the con-
tested Election case from this District.
IF this view, however, is erroneous
if it were possible to infer that, by this
indirect mode, under the clause as to
additional territory, in the constitution
of West Virginia, Congress designed to
give the requisite consent to this addi-
ton to and subsequent formation of
ne,c State, by the "J,nction ofa State and
part of q State" and has, constitutionally,
exerted its function of consent to the
acquisition-it still remains to be con-
sidered, not only whether the State of
Virginia, and that, too, through its Le-
gislot,we, could disnaen,der itself; but if so,
whether Congress, as required by the
constitution of the United States, has
agreed that the State of Virginia might
cele these counties.
AS to the latter question, it cannot be
plausibly contended that any neighbour
ing State of West Virginia, including
Virginia itself, could, without Congress
sional consent, transfer to it any part Of
its domain. liza part, Of necessity the
,chole, of such neighboring State could
be transferred. This would involve the
possibility of creating new state by the
junction of West Virginia, and, say,
Pennsylvania, without the consent of
Congress. Admittedly itsconsent would
be required in such case-it being pre-
posterous to suppose that such consent
has been given to the ceding State, by
virtue of the clause giving West Virginia
the power to acquire additional territory.
1t is, however, said that this is not the
case OF the creation Of a neto State by the
transfer Of these two counties. That as
sumption is utterly exploded by the ex-
tract l have given from the debates in
the Federal n-conclusively
ascertaining that a ne,O State is formed
by the junction of State and part Of a
State.