The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-05-10
THE TWO VIRGINIAs IN THE sU-
PREME COURT.
The Question of vIrElnia,s status in
the Union.
The Respective Claims TO Berkeley
and JeaersOn,

Virginia, rs. West Virginia, the former
contesting the right of the latter TO ex-
ercise Jurisdiction over the counties OF
Berkeley and Jefferson, was argued in
the Supreme Court of the United States,
Tuesday and Wednesday, by Hon.
Benjamin Stanton and Hon. Reverdy
Johnson, on behalf of West Virginia,
and Andrew Hunter and Hon. George
T. Curtis, for Virginia.
In the Court report of the Washing
ton Chronicle we find the following
statement of the case as 1t seems to
have been presented in the argument
of the counsel:
The facts in this case have been here
tofore stated in full in this paper. The
scope of the bill is to determine, by a
decree of this court, whether the coun-
ties of Jefferson and Berkeley are in
cluded within the boundaries of the
Commonwealth of Virginia or within
the boundaries of the State OF West
Virginia. The only facts that need to
| be re.stated are that in January and
February, 1868, the Legislature Of the
old State enacted that IL these counties
should vote to go into the new State
they should be SO Incorporated therein
with the consent of the Legislature
thereof; and although there were no
polls held in many OF the districts at
the appointed time, In consequence of
the war, still 1t being represented that
the election had taken place fairly and
promptly, the Governor of the State so
certified, that the State of West Virginia
thereuPon assumed jurisdiction, with
out the consent of Congress, and has
since continued to exercise it, to the
exclusion of the dominion Of the old
State; that 1t appearing that the Gov
ernOr had so certified in consequence of
| fraudulent representations made to
him, the old State, by an act of its Leg
islature, revoked its consent to the
transfer of the counties. ...
Upon these facts the question is
whether the old Commonwealth is en-
titled to have the counties restored to
her Jurisdiction by the decree of this
court, and her counsel contend that no
State can without the consent of Con-
gress, as provided in the Constitution,
enter Into any agreement or compact
with another State or a foreign power"
The proposed transfer could not have
been made therefore without the con-
sent of Congress, because it could be
made only by compact or agreement"
The legislation of Virginia in respect
to the cession was only proposal, to
become operative as a transfer of terri
tory upon certain conditions. So far as
1t depended upon that State to pre-
scribe those conditions they are con-
tatned in Its acts of legislation. But
no proposal of the kind can amount to
concluded compact or agreement un-
til the assent of Congress Is given to 1t.
Prior to that assent any action of the
State must be deemed only a proposal,
which it may withdraw or continue
according to its own sense of right,
The grounds for the withdrawal OF its
assent to the cession on the part of Yir-
ginia were amply sufficient, and the
withdrawal was enacted by the Legis-
lature before it became operative as a
compact by any action Of Congress.
The requirement OF the consent of the
majority of the legal voters in each of
the counties after a fair opportunity to
express their wishes according to the es-
tablished and legal course, was fund
amental condition of the proposal of
cesSion, and If cession has been made
Withoutsuch consent it has been made
without the consent of Virginia, and
contrary to its expressed will. The
means prescribed for the ascertainment
of that consent were deemed to be suffi-
cient; but il, through fraud and false
hood, they proved to be wholly INSULT
Cient, the Commonwealth was not pre-
cluded and estopped from knowing the
truth and acting upon 1t.
If this were question between two
private persons respecting a grant of
land, and it were to appear that the
conveyance, though freely executed,
was made under mistake of the mag
nitude, and produced by the means
shown IN this bill, court of equity
would annul the grant. Ia compact be-
tween two States, though fully con-
Cluded, may, according to principles of
public law, be Rnnulled by one Of them
upon discovery of a mistake concerning
facts which the compact itself showed
were fundamental. Consequently one
ofthe parties may withdraw its assent
before the compact has been fully con-
cluded, and whatever has been done
upon discovery that condition, shown
in the face of the proceedings to be fun
damental, has not been complied with.
The State of West Virginia demurs
to the bill, and contends in support of
the demurrer, first, in respect of the
alleged fraud, that this Is public act
of municipal sovereignty which cannot
be impeached for fraud. That a private
grant from a sovereign to its subject,
or a government to It's citizen of title
or a franchise, may be impeached and
set aside in chancery, for fraud on the
part of the grantee in obtaining it, can
not be doubted. But this Is the exer-
else of one of the highest attributes of
municipal sovereignty, which has
transferred the allegiance of more than
10000 people from one government to
another. If the whole transaction is
void for fraud, what is to be the result
diction under the authority OF the State
of West Virginia3 Taxes have been
collected and disbursed; courts have
been held; judgments, civil and crimi-
nal, have been rendered and executed:
convicts are serving out their time in
the penitentiary, and others have been
hung. What is to be done with the
judges and sheriffs who have rendered
and executed these judgments2 The
mere statement of the proposition
shows how utterly serious It would be
to hold public acts of municipal SOW
ereignty, operating upon whole COM
munites, void upon an allegation of
fraud,
But it is the fraud of her own citi-
zens that the State of Virginia COM
plains of, and in consequence ofwhich
she seeks to avoid the obligation of her
treaty. 1t is a settled principle OF inter-
nuLlOnd4 law luAL AIeE treaty mas Deen
concluded by the proper treaty-making
power of a nation, it cannot excuse
itself from performance by the refusal
of another department Of the Govern
ment TO adopt measures necessary for
its execution. The application of this
principle is not impaired by the fact
that these States have no treaty-mak-
ing powers, and that their compacts
and agreements must have the assent
OF congress. When the United States,
or states not parties to the compact or
agreement, are not prejudiced by it, the
consent ot Congress IS really only a
mayer mayer OF Iorm, , andis always given as
Lllattes nas !es " ot,SS eSu a number Of instan-