Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1867-06-25

pretend to establish a merely conventional
line, but to ascertain and mark an existing
line. Such action rests on tho existing rights
of the parties, and not on u compact by which
new rights are created.
1t 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 lines 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 de-
pends on tho object of the concurrent legisla-
tiOn and upon what is requisite to effect that
object
If the only purpose is severally to exert
the legislative power of each State IN par
ticular way, SO that some object in which
each has its own interest, can be better ac-
cOmplished. 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, fUr'the plain reason that no CON-
pact is contemplated or necessary to effect all
that is proposed. But, if the object of the
concurrent legislation is cessiou of territory
by one State to another State, inasmuch as
this can only be efectually done by the re.
ciprocal and united consent of each State,
given so as to be binding on both, that is. BY
compact or agreement, then, by the express
terms of the Constitution the consent of
Congress is necessary.
respectfully submit to the Court that we
have advanced as far as this upon firm ground;
that transfer of the territory aud iurlsdic,
tiOn of these two counties from the Common.
wealth of Virginia to the State of West Vir-
ginia could be made only by compact or
agreement, which the two States were pro-
hibited from entering into without the con-
sent of Congress,
1t is most material to observe how the Con.
stltution has left this power OF the States to
contract with each other. As was stated by
this Court in Poole Us. FIeeger, in IL Peters.
X. 2O9, the States, if not restrained hy the
Constitution, would have had the same ca
pacity to make compacts concerning their
territory and jurisdiction as other independent
States. 1t 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 rat
ifed 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 power of ratification would have been
in 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 ma.
tiOns are now understood to be bound by a
compact made by their respective representa-
tivcs, having full powers And it NAV be
remnrked in passing that in that case. before
ratification, either may withdraw it's consent,
ii it shall appear that from mutual mistake
and without any deception, conditions known
to both parties to be essential, have not been
complied with.
Ldrreace's IWcoton, 452, and Note.
But in point of fact the constitutional re-
straint on the power OF the States goes much
further than this.
''Ne State shall, without the consent Of Conprcss
enter inio any comPactOr agreement with another
StatC.'
1t is not the requirement of some act to be
done by third party TO give complete valid
lty aud ettectual operation to compact, lcuv
ing the parties free TO make one.
ltis prohibition to contract It is a dis
ability to enter into the relation of parties to
compact. They may negotiate they may
ascertain and express Il mutual Willingness to
agree to the same thing, but this is all thcv
can ''e"feT f"f0 no compact ar agreement -
1t Is said Congress may assent after the
States have framed aud 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 re-
quiring this assent. Congress should never
give it until the terms of the proposed COM
pact have been fully framed aud 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
l.
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 Consti-.
tuition is to render the consent of three par
ties absolutely necessary to the formation of
compact or agreement between two States.
And it is a principle Of universal application
IN all systems of law, whether public or mu
nicipnl, that, to form an effective compact or
agreement. there must be Il reciprocal and
concurrent consent of all the parties whose
consent is necessary Not that the consent
Of all must be SiyWticR at the same time
One may express its consent to-day. another
tomorrow, 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 uni ion of the three minds And
it, before any compact is entered into bv such
reciprocal and concurrent consent of the three
parties, one of them withdraws its assent aud
refuses to proceed further, there can be no
compact or agreement entered into If this
can be made clearer by reasoning than it is
upon mere statement of propositions so
plain, let us inquire at ,chuf point of time
Virginia is supposed to have entered into the
compact necessary to cede part of its terri
tory. Certainly not before the assent of Con-
gress was given. The constitutional disabil-
ity to enter into any compact or agreement