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

Let us not lose Slgnt OF tue eSseuIlaI lOeuS
which belong to the subject. The contracts
ing 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 with
out that assent, they alone can frame the
compact and, if they do not mutually and
cOncUrrently agree, at n time when they have
capacity to enter into an agreement, there can
be NO agreement Aud, under the COnsti-
tuition, Congress has no more power to sup
ply 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 re-
solve is conclusive evidence that a compact
or agreement of cessi0n 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 aud that
this Court cannot inquire and judicially as
certain 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
case in which it has been already shown, upon
admitted facts, that there was no compact or
agreement entered into by the two States to
transfer this territory.
1t must also be remembered that whether,
upon admitted facts, compact or agreement
was concluded between the two States, is in
this case, and under the powers possessed by
this Court, purely judicial question. tide
ponds exclusively on the public law which
governs compacts of independent States, mod
flied 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 concluded compact.
The first and most obvious practical OBJ
lection to this assumption is, that, in effect,
1t 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.
1t 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 con-
ludcd compact existed, because Congress
mas given its assent to such compact, Meth
er could West Virginia make a similar re-
% irement. If one party is estoppcd either
both are estopped, in this and all other
ses in which the existence of concluded
impact comes in question and in no case
I'm this Court inquire into the existence of
4 a compact between two States, If Congress
has given Its consent to compact.
~ And the necessary result is, that in place
pf the powers of States to make compacts
18th each other, which this Court has de-
pred were preserved by the Constitution,
bject only TO the consent or dissent of
2gress, We have the power of Congress to
tare that compacts exist, and then to con-
ito them, and so to end the matter.
is respectfully but confidently submitted
Atno such estOppel binds the States or the
action of this Court upon their cOmpacts.
Whether binding compact has been made
between two States is purely judicial ques-
ton. The consent of Congress is necessary.
1t may be given before, or it may be given
after the two States have finally assented.-
The order in which the three necessary par
ties 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 circum-
stances 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 with
out the consent of the other necessary par
ties; and this is equally true of each of them.
The consent OF Congress can no more dis
pense 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 cstoppel 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 tho
counties of BeI kelley nd Jefferson from the State
of Virginia to the State of w est Virginia. and
Eents theretO.''
Having in mind that the only power of
Congress was to assent to a compact of trans
fer proposed by the two States, and that Con-
gresS could neither make transfer nor as
sent to one unless the two States were con-
senting 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 date
of the resolve, should be after as date,
such as to effect the transfer with the assent
of Congress. To assume that it meant to as
sent to transfer though there was not then
existing, and though there should not after
wards 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 OBJ
jectiOnable. 1t is that because the Constitu-
ton had conferred on Congress power to as
sent to or dissent from the compacts of States,
this Congress arrOgatcd to itself the judicial
L. 49, :.